Prison Phone Justice

HON. BETH ANDRUS
Hearing Date: April 12, 2013 @ 9:00 a.m.
With Oral Argument

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IN THE SUPERIOR COURT OF WASHINGTON
FOR KING COUNTY

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SANDY JUDD, TARA HERIVEL, and
COLUMBIA LEGAL SERVICES, for
themselves, and on behalf of all similarly
situated persons,
Plaintiffs,

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v.

NO. 00-2-17565-5 SEA
CLASS ACTION
DECLARATION OF CHRIS R. YOUTZ
IN SUPPORT OF CLASS COUNSEL’S
MOTION FOR COMPENSATION,
COSTS AND INCENTIVE AWARD RE:
T-NETIX SETTLEMENT

AMERICAN TELEPHONE AND
TELEGRAPH COMPANY and
T-NETIX, INC.,
Defendants.

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Chris R. Youtz declares under penalty of perjury as follows:

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1.

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I am one of the attorneys representing plaintiffs and the class in

this matter. The facts stated in this declaration are based on my personal knowledge.
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I have been the attorney primarily responsible for this case. We

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became involved in this case when we were approached by Sandy Judd and her

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husband Paul Wright because of their expensive phone bills for collect calls from

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Washington DOC facilities. They had discussions with another Seattle firm for about a

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year regarding this matter, but that firm declined to take the case. After substantial

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review, we decided to take the case and make the argument that the defendants had
DECLARATION OF CHRIS R. YOUTZ IN SUPPORT OF CLASS
COUNSEL’S MOTION FOR COMPENSATION, COSTS AND
INCENTIVE AWARD RE: T-NETIX SETTLEMENT – 1

SIRIANNI YOUTZ SPOONEMORE
999 THIRD AVENUE, SUITE 3650
SEATTLE, WASHINGTON 98104
TEL. (206) 223-0303 FAX (206) 223-0246

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failed to properly disclose rates. I had handled pro bono cases on behalf of prisoners

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and had litigated with telecommunications companies in the past so I knew that the

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case would be risky and hard-fought by the defendants.

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3.

We filed this case in June, 2000. This case has a substantial history.

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Within a few months of filing, the court dismissed portions of the lawsuit that we

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appealed. The issues on appeal were first ruled upon by the Court of Appeals then

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addressed by the Washington Supreme Court. Following those rulings, two defendants

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remained in the action: AT&T and T-Netix.

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4.

The court also ruled that two issues should be referred to the

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Washington Utilities and Transportation Commission: 1) whether AT&T and T-Netix

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were operator service providers, and 2) whether the rate disclosure regulations were

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violated. Once proceedings began with the WUTC, AT&T and T-Netix immediately

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filed motions for summary determination with the Commission. Several other motions

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were filed and substantial discovery began. One of the motions asserted that plaintiffs

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lacked standing to bring claims against AT&T and T Netix. That motion was denied by

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the administrative law judge, and AT&T and T-Netix appealed the decision to the full

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commission. The Commission affirmed that decision. The motion was then brought in

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this court as a motion for summary judgment. That motion was granted by Judge

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Ramsdell, who ruled the plaintiffs lacked standing. That decision also resulted in the

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WUTC terminating its proceedings in October, 2005.

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5.

Plaintiffs appealed the summary judgment order to Division I of

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the Court of Appeals. The order was reversed and the defendants sought review by the

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Washington Supreme Court. Review was denied. In March, 2008 an order was issued

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reinstating the referral to the WUTC.

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6.

AT&T and T-Netix renewed their motions for summary

determination in the WUTC proceedings. Substantial discovery followed before the
motions were fully briefed and submitted. Additional bench requests were issued by
DECLARATION OF CHRIS R. YOUTZ IN SUPPORT OF CLASS
COUNSEL’S MOTION FOR COMPENSATION, COSTS AND
INCENTIVE AWARD RE: T-NETIX SETTLEMENT – 2

SIRIANNI YOUTZ SPOONEMORE
999 THIRD AVENUE, SUITE 3650
SEATTLE, WASHINGTON 98104
TEL. (206) 223-0303 FAX (206) 223-0246

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the administrative law judge who filed an initial order (Order 23) on April 21, 2010.

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That order was appealed by AT&T to the full commission. The Commission also

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sought additional information through bench requests and the parties raised numerous

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motions to strike in connection with the review by the Commission. During this time

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AT&T also sought to recuse the judge in charge of the administrative law division from

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participating in the case. The Commission denied that motion.

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On March 31, 2011 the Commission issued Final Order 25.

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Final Order 25 responded to the referral questions from this Court.

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Because the order resulted from an administrative proceeding, T-Netix and AT&T filed

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petitions for judicial review in Thurston County Superior Court. Thus began rounds of

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briefing and hearings in that court.

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In April 2011 the case was reactivated in King County Superior

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Court. Plaintiffs immediately sought leave to amend the complaint to add Columbia

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Legal Services as a class representative. We also filed our motion for class certification.

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The Court allowed the amended complaint but stayed the class certification motion

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and other activity pending a ruling on the judicial review of the Commission’s Order

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25 from the Thurston County Superior Court.

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10.

Ultimately, the Thurston County Superior Court affirmed the

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rulings made by the Commission regarding determination of the operator services

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providers, but remanded the issue of whether the regulations were violated for the

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Commission to receive additional evidence. This Court then granted AT&T’s motion to

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withdrawal the referral from the WUTC so that this Court would decide all liability

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issues. The issue of the identity of the operator service provider, however, was

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appealed to Division II of the Court of Appeals where oral argument is set for April 8.

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This Court then allowed the plaintiffs to proceed with obtaining

class certification and discovery. As his Court well knows, from February 2012 through
the end of the year, there were numerous motions seeking to reconsider class
DECLARATION OF CHRIS R. YOUTZ IN SUPPORT OF CLASS
COUNSEL’S MOTION FOR COMPENSATION, COSTS AND
INCENTIVE AWARD RE: T-NETIX SETTLEMENT – 3

SIRIANNI YOUTZ SPOONEMORE
999 THIRD AVENUE, SUITE 3650
SEATTLE, WASHINGTON 98104
TEL. (206) 223-0303 FAX (206) 223-0246

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certification and limit the issues in the case as well as several motions for summary

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judgment. Defendants twice sought discretionary review in Division I of the Court of

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Appeals.

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Discovery was extensive, and occurred throughout the country. In

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large part, the case turned on highly technical issues both related to equipment and

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software. Plaintiffs had to fight for every piece of technical information they could

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obtain from defendants. Ultimately, many of the answers were provided through data

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tapes obtained from T-Netix that not only contained call detail records for the calls

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made from the prisons, but also program files and data. It took hundreds of hours of

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review time of program code, data files, and call records to fully understand how the

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T-Netix system worked and why proper rate quoting was not being provided. In

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addition, there were extensive telecommunications issues that required us to review

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several dockets at the Federal Communications Commission and the WUTC to

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understand and analyze the history of rate quoting and other issues. Among the other

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issues we had to address was the designation of calls as interLATA, intraLATA, or

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local. This was necessary for determining both liability and damages.

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While the Court did not see much of the technical analysis that

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was undertaken in this case, it was presented with a substantial amount of legal

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analysis from issues raised by the defendants regarding class certification issues, the

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applicability of the Consumer Protection Act, statutory damages, and the interplay of

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federal and state law related to rate quoting. There is no doubt that the defendants

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raised every possible defense and argument available in this case, often more than

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once. These arguments even extended to attempts to narrow the class on the grounds

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that Columbia Legal Services should not be a class representative because as a provider

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of services to the poor it could have received money from The Law Foundation from

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any residual funds remaining after class members were paid.

DECLARATION OF CHRIS R. YOUTZ IN SUPPORT OF CLASS
COUNSEL’S MOTION FOR COMPENSATION, COSTS AND
INCENTIVE AWARD RE: T-NETIX SETTLEMENT – 4

SIRIANNI YOUTZ SPOONEMORE
999 THIRD AVENUE, SUITE 3650
SEATTLE, WASHINGTON 98104
TEL. (206) 223-0303 FAX (206) 223-0246

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14.

By the time that much of the discovery was done, the parties

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attempted to settle the case. With respect to T-Netix, settlement discussions first began

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in late August, 2012 mediator Eric Green. Those efforts were unsuccessful. Shortly after

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the mediation, the court considered several motions for summary judgment, including

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liability motions brought by the plaintiffs. Following the decisions on those motions,

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we negotiated directly with T-Netix’s general counsel and settled the claims against T

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Netix for approximately $1.4 million.

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The Court ruled that damages for violations of the rate disclosure

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regulations under the Washington Consumer Protection Act should be based on a

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payment of $200 per consumer plus the cost of the collect calls accepted by the

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consumer. Under this formula, the approximate amount of the maximum damages that

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the Local Call Class could obtain was $1,241,480. This is approximately $171,000 less

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than the amount paid by T-Netix under the settlement agreement. This assumes that

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each unique telephone number represented a unique consumer who would receive

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$200. As shown by the damages analysis prepared for the claim against AT&T, it is

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likely that class members had more than one number that they received calls on. We

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expect that the actual amount that would be paid out to claimants will be substantially

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less. The claims received to date indicate that the amount of money paid for submitted

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claims will be less than $200,000 of the $1.4 million settlement.

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There are many class actions where settlements often return only

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pennies on the dollar to class members. Here, even after the payment of fees, expenses,

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and the case contribution award to Columbia Legal Services, it is probable that class

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members submitting claims will receive the maximum amount of their entitlement.

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We have personally contributed more than $500,000 to pay for

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expert witness fees, depositions, travel expenses, providing notice and claims

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administration for class members, trial graphics and other expenses. There was no
guaranty that we would receive back any of these funds if the case was not successful.
DECLARATION OF CHRIS R. YOUTZ IN SUPPORT OF CLASS
COUNSEL’S MOTION FOR COMPENSATION, COSTS AND
INCENTIVE AWARD RE: T-NETIX SETTLEMENT – 5

SIRIANNI YOUTZ SPOONEMORE
999 THIRD AVENUE, SUITE 3650
SEATTLE, WASHINGTON 98104
TEL. (206) 223-0303 FAX (206) 223-0246

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18.

In addition, we devoted over 7000 billable hours to this case with a

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time value of more than $3 million. That commitment meant that we turned away

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hourly work and other contingent fee matters. During the past two years we’ve had

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one of our attorneys virtually working full-time on this case and another putting

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substantial time into the matter. In a small law firm of six lawyers that is a substantial

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financial commitment. The defendants used substantial resources to defend this case.

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During the final summary judgment hearings, the defendants had at least eight

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lawyers from two major Chicago law firms, a major Washington DC law firm, and two

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Seattle law firms in addition to in-house counsel. There were several other lawyers

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who worked for the defendants were not present at the hearing, including many who

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apparently assisted in the various appeals in this case.

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We took reduced draws and saved money to pay expenses for this

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case. It is unusual to have to make a financial and time commitment for a contingent

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case over a 12 year period.

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DATED: March 25, 2013, at Seattle, Washington.
/s/ Chris R. Youtz
Chris R. Youtz (WSBA #7786)

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DECLARATION OF CHRIS R. YOUTZ IN SUPPORT OF CLASS
COUNSEL’S MOTION FOR COMPENSATION, COSTS AND
INCENTIVE AWARD RE: T-NETIX SETTLEMENT – 6

SIRIANNI YOUTZ SPOONEMORE
999 THIRD AVENUE, SUITE 3650
SEATTLE, WASHINGTON 98104
TEL. (206) 223-0303 FAX (206) 223-0246

CERTIFICATE OF SERVICE

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I certify, under penalty of perjury and in accordance with the laws of the State of

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Washington, that on March 25, 2013, I caused a copy of the foregoing document to be

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served on all counsel of record in the manner shown and at the addresses listed below:

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Bradford Axel
STOKES LAWRENCE, P.S.
1420 Fifth Avenue, Suite 3000
Seattle, WA 98101

Attorneys for AT&T
By Email:
bradford.axel@stokeslaw.com
deborah.messer@stokeslaw.com

Charles H.R. Peters
David C. Scott
Brian L. Josias
SCHIFF HARDIN LLP
233 S. Wacker Drive, Suite 6600
Chicago, IL 60606

Attorneys for AT&T
By Email:
cpeters@schiffhardin.com
dscott@schiffhardin.com
bjosias@schiffhardin.com

Charles W. Douglas
David W. Carpenter
SIDLEY AUSTIN LLP
One South Dearborn
Chicago, IL 60603

Attorneys for AT&T
By Email:
cdouglas@sidley.com
dcarpenter@sidley.com

Don Paul Badgley
Donald H. Mullins
Duncan C. Turner
BADGLEY-MULLINS LAW GROUP PLLC
701 Fifth Avenue, Suite 4750
Seattle, WA 98104

Attorneys for T-Netix
By Email:
donbadgley@badgleymullins.com
donmullins@badgleymullins.com
duncanturner@badgleymullins.com
climon@badgleymullins.com

Stephanie A. Joyce
ARENT FOX LLP
1717 K Street, NW
Washington, DC 20036

Attorneys for T-Netix
By Email:
joyce.stephanie@arentfox.com

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DATED: March 25, 2013, at Seattle, Washington.
/s/ Richard E. Spoonemore
Richard E. Spoonemore (WSBA #21833)

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DECLARATION OF CHRIS R. YOUTZ IN SUPPORT OF CLASS
COUNSEL’S MOTION FOR COMPENSATION, COSTS AND
INCENTIVE AWARD RE: T-NETIX SETTLEMENT – 7

SIRIANNI YOUTZ SPOONEMORE
999 THIRD AVENUE, SUITE 3650
SEATTLE, WASHINGTON 98104
TEL. (206) 223-0303 FAX (206) 223-0246