Judge Certifies Inmate Phone Class Action, Saying Defense 'Poisoned' the Litigation

U.S. District Judge Amy Totenberg issued a sanctions order stating that the defendant “poisoned and burdened the entire discovery and litigation process with its conduct,” and ordering it to pay “all attorney’s fees and costs incurred in discovery, class certification briefing, and litigation of sanctions issues.”

U.S. District Judge Amy Totenberg, Northern District of Georgia. Photo: John Disney/ALM

By Greg Land | December 01, 2020

An Atlanta federal judge overseeing a class action against a company that provides telephone services to prison inmates dropped the hammer Monday, certifying the class accusing Global Tel Link Corp. of pocketing millions of dollars from inmate accounts it declared “inactive” if the funds weren’t accessed for 90 days.

But U.S. District Judge Amy Totenberg went further, issuing a 79-page sanctions order stating that the defendant “poisoned and burdened the entire discovery and litigation process with its conduct,” ordering GTL to pay “all attorney’s fees and costs incurred in discovery, class certification briefing, and litigation of sanctions issues.”

The ruling by Totenberg, of the Northern District of Georgia, also ordered the parties to make another effort to resolve the case through mediation and, if the effort was again unsuccessful, allowed the plaintiffs to seek attorney fees.

The complaint, originally filed in 2015, asserted claims for violations of the Federal Communication Act and state claims for breach of contract and unjust enrichment. 

Key to Totenberg’s sanctions ruling was evidence that GTL—which had maintained for years that the inmates and their friends and family members had agreed to have their accounts raided by assenting to an automated message when setting them up—had not provided any such notice.

“GTL did more than simply hide that it had removed the statement in early 2014 from its automated phone script — it also produced documents and provided deposition testimony that all putative class members actually heard the statement,” she wrote.

“Four years after plaintiffs filed their lawsuit, it turned out that critical discovery testimony and responses—and in turn, a centerpiece of GTL’s defense in this litigation—were based on a misrepresentation that boils down to a lie,” Totenberg wrote. “GTL insisted, over and over again in different variants, that this lie was the truth.”

The deceptions “resulted in significant delays and detours in reaching the merits of this case” and “resulted in significant litigation harm and forced Plaintiffs’ counsel to engage in major legal work that would have been obviated but for GTL’s course of gamesmanship.”

Totenberg’s sanctions order stipulates that there were valid contracts between the plaintiffs and GTL, and that they did not include any notice that those contracts contained a warning that they “may expire.”

“GTL is precluded from arguing that class members agreed to GTL’s so-called inactivity policy,” the judge said, finding that “this is the most appropriate sanction as it is tailored to GTL’s bad faith course of conduct in discovery and class certification briefing, which even manifested in the testimony presented at the sanctions hearing.”

The plaintiffs’ class Totenberg certified Monday applies to anyone who set up a prepaid account through GTL’s automated system to receive calls from inmates in Georgia or South Carolina after April 2011 and had those accounts reduced to nothing due to account inactivity.

But Totenberg’s order also noted that GTL’s own figures indicated that it “appropriated over $110,000,000 from millions of customers” between 2008 and 2017 under the practice, which GTL terms its “breakage policy.”

In certifying the class, she left the door open to expanding it to other states or the entire country.

“The court recognizes that plaintiffs have submitted evidence that the breakage policy is relatively uniform nationwide,” Totenberg wrote.

“The court is not foreclosing amending or otherwise tweaking the class definition to encompass a broader class at a later point, provided an adequate factual predicate is shown that the representative plaintiffs or the inmates they called were impacted on a geographic scale broader than Georgia and South Carolina.”

The ruling comes in the wake of a settlement finalized last month in which GTL agreed to pay $25 million to resolve a class action in New Jersey over claims that it overcharged thousands of inmates in that state.

The plaintiffs in the Georgia litigation are represented by Michael Caplan, James Cobb and T. Brandon Waddell of Caplan Cobb; James Radford of Decatur’s Radford & Keebaugh; and Decatur solo Andrew Lynch.

In a statement, the plaintiffs lawyers said the court “appropriately sanctioned Global Tel-Link’s serious discovery misconduct by, among other things, establishing the validity of the class members’ contract claims as a matter of law.

“Now that a class has been certified, we look forward to obtaining a full recovery of the money Global Tel-Link wrongfully took from its customers,” it said.

GTL is represented by a team of Greenberg Traurig lawyers including Michael Sklaire, Michael King, John Crisham and Robert Herrington; Robbins Ross Alloy Belinfante Littlefield partners Josh Belinfante and Jeremy Littlefield; and Derek Ho and Benjamin Softness of Kellogg, Hansen, Todd, Figel & Frederick in Washington, D.C.

A Greenberg spokeswoman said there would be no comment on the ongoing litigation.

The case in the U.S. District Court for Northern District of Georgia is Githieya v. Global Tel Link.