Prison Phone Justice

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LAW OFFICES OF EDWARD C. CASEY, JR.
EDWARD C. CASEY, JR. (State Bar #123702)
2100 Lakeshore Avenue, Suite A
Oakland, CA 94606
Telephone: (510) 208-4422
Facsimile: (510) 272-9999

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LAW OFFICES OF JOHN W. ALLURED
JOHN W. ALLURED (State Bar #84770)
One Maritime Plaza, Suite 1040
San Francisco, California 94111
Telephone: (415) 675-2960
Facsimile: (415) 675-2961
FARROW, BRAMSON, BASKIN & PLUTZIK
ALAN R. PLUTZIK (State Bar #77785)
2125 Oak Grove Blvd., Suite 120
Walnut Creek, California 94598
Telephone: (925) 945-0200
Facsimile: (925) 945-8792

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Attorneys for Plaintiffs, Individually and
On Behalf of All Others Similarly Situated

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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IN AND FOR THE COUNTY OF ALAMEDA - UNLIMITED

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EVERCOM SYSTEMS, INC; SBC
COMMUNICATIONS, INC.; PACIFIC
BELL TELEPHONE COMPANY; and
DOES I through 50, inclusive.

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Defendants.

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Case No. 2002054255

ELENA CONDES, BRIAN H. GETZ, and )
BICKA BARLOW, on behalf of themselves )
and all others similarly situated,
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Plaintiffs,
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vs.
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FIRST AMENDED CLASS ACTION
COMPLAINT FOR DAMAGES

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1
First Amended Class Action Complaint for Damages

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F or their complaint, plaintiffs, by their attorneys, allege on information and belief
as to all matters except those concerning the plaintiffs, which are alleged on personal knowledge,

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as follows:
JURISDICTION AND VENUE

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1.

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This action arises out of a pattern and practice whereby defendants

Evercom Systems, Inc., Pacific Bell Telephone Company, and SBC Communications, Inc.
wrongfully charged customers for telephone services which were not authorized or accepted. As

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hereinafter alleged, the defendants reside, have offices and/or conduct business in this County.

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2.

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The amount in controversy exceeds the jurisdictional minimum of this

Court.

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PARTIES

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(A)

Plaintiff Elena Condes ("Condes") is a resident of this County.

(B)

Plaintiff Brian H. Getz ("Getz") is a resident of San Francisco,

(C)

Plaintiff B icka Barlow ("Barlow") is a resident of Contra Costa

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(D)

Plaintiffs bring this action individually and on behalf of a class of

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similarly situated persons, as hereinafter defined.

3.

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California.

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County.

4.

Defendant Evercom Systems, Inc. ("Evercom") is a Delaware corporation

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with its principal offices at 820 I Tristar Drive, Irving, Texas.
5.

Defendant SBC Communications, Inc. ("SBC") is a Delaware corporation

with its principal place of business at 175 E. Houston, San Antonio, Texas.

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First Amended Class Action Complaint for Damages

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6.

Defendant Pacific Bell Telephone Company ("Pacific Bell") is a California

corporation with its principal offices at 140 New Montgomery Street, San Francisco, California.

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Pacific Bell is an operating subsidiary of SBC.
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At all times relevant hereto, defendants have pursued a common course of

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conduct, and have conspired with, and have aided and abetted one another, including unnamed

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others, both known and unknown, to accomplish the wrongful acts alleged. Defendants herein

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acted as agents for their co-defendants and as the agents of each other in committing the acts

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alleged.

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8.

The true names and capacities of defendants sued herein under California

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Code of Civil Procedure Section 474 as Does 1 through 50, inclusive, are presently not known by

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plaintiffs, who therefore sue these defendants by such fictitious names. Plaintiffs will seek to

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amend this Complaint and include these Doe defendants' true names and capacities when they are

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ascertained. Each of the fictitiously named defendants is responsible in some manner for the

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conduct alleged herein and for the injuries suffered by plaintiffs.
CLASS ACTION ALLEGATIONS

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9.

This action is brought as a class action pursuant to California Code of

Civil Procedure Section 382. Plaintiffs bring this action on behalf of (I) all California residents
who were charged by Evercom, Pacific Bell or SBC, directly or through any billing service used

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by them, for collect calls from correctional facilities which such persons did not authorize or

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accept and (2) all persons who were charged by Evercom, Pacific Bell or SBC, directly or

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through any billing service used by them, for collect calls from correctional facilities located in

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California which such persons did not authorize or accept.

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First ronended Class Action Complaint for Damages

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10.

Although the exact number of class members is unknown to plaintiffs at

this time, Evercom serves numerous correctional facilities in California and elsewhere, including

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city, county, state and federal correctional facilities. Each of these facilities has at least several,

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and as many as hundreds, of inmates. Therefore, the class is so numerous that joinder is

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impracticable.

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II.

There is a well-defined community of interest in the questions oflaw and

fact affecting the parties to be represented in this action. The questions ofJaw and fact to the
class predominate over questions which may affect individual class members. These questions

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oflaw and fact include:
(a)

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whether defendants engaged in a pattern and practice ofbilJing

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recipients of colJect calls for such caIJs even though such recipients did not authorize or accept

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such caIJs;

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(b)

whether defendants' conduct violated California statutory or

(d)

what is the proper measure of damages for any misconduct on the

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common law;

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part of defendants.

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12.

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Plaintiffs' claims are typical of the claims of the other members of the

plaintiff class. Plaintiffs and aIJ members of the class were injured and have sustained damages
as a result of the wrongful conduct herein alleged.

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13.

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Plaintiffs wiIJ fairly and adequately protect the interests of the members of

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the plaintiff class and have retained counsel competent and experienced in class and securities

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litigation.

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First Amended Class Action Complaint for Damages

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14.

A class action is superior to other available methods for the fair and

efficient adjudication of this controversy since joinder of all members of the plaintiff class is

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impracticable. Furthermore, as the damages suffered by individual class members may be

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relatively small, the expense and burden of individual litigation makes it impossible for the class

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members to individually address the wrongs done to them. There will be no difficulty in the

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management of this action as a class action.

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15.

Plaintiffs contemplate providing notice to the members of the class by

means of a first-class mailing to all class members who can be identified through reasonable

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effort. The names and addresses of the members of the class can be determined from defendants'
books and records.

FACTUAL BACKGROUND

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Defendant SBC is one of the largest providers of telecommunications

services in the United States. Originally formed as a regional holding company which did

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business primarily in five southwestern states, SBC has expanded its operations through a series

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of merger and acquisitions, and its principal wireline subsidiaries provide services in thirteen
states, including Galifornia.

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17.

Defendant Evercom advertises itself as "the largest independent supplier

of inmate telecommunications and information services in the United States." According to its
own statements, it provides "inmate communications solutions" to more than 2,000 correctional

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facilities in 45 states - some 75% of all correctional facilities in the United States. Evercom

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provides "sophisticated inmate telephone systems, alternate calling options, dedicated direct

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billing services, automated information management services and comprehensive customer

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service. "

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First Amended Class Action Complaint for Damages

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In some cases, Evercom contracts directly with correctional facilities to

provide these services. In other cases, Evercom "partners" with other, including regional Bell

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operating companies, to provide its services.

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19.

In California, Evercom "partners" with Pacific Bell to provide telephone

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services at numerous correctional facilities, including, but not limited to, the Santa Rita County

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laillocated in Dublin, California. In general, under the arrangements between Evercom and

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Pacific Bell, Evercom provides certain telephone services and Pacific Bell provides others.

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20.

Commencing not later than 2001, defendants began charging for telephone

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services which were not authorized or accepted. In particular, defendants charged the recipients

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of collect calls from inmates at correctional facilities even though such neither the collect calls

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nor any charges therefor were authorized or accepted by the recipients of the collect calls. In

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particular, where a collect call was "received" by a recorded greeting, defendants charged for

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such call in the amount of one minute even though such call was not authorized or accepted by

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the recipient of the call.

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21.

(A)

For example, plaintiff Condes was charged the following amounts

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for collect calls from correctional facilities on the following dates, even though plaintiff Condes

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did not authorize or accept the collect calls or any charges therefor:

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Charge
8/3/01

$2.83

8/28/01

$2.83

9111101

$2.83

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10/25/01

$2.83

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11112/01

$2.83

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First Amended Class Action Complaint for Damages

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1217101
(B)

$2.83
Likewise, plaintiff Getz was charged the following amounts for

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collect calls from a correctional facility on the following dates, even though plaintiff Getz did not

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authorize or accept the collect calls or any charges therefor:
Charge

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4/8/02

$4.84

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4/8/02

$6.62

4/8/02

$4.84

4/8/02

$5.73

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(C)

Likewise, plaintiff Barlow was charged th~ following amounts for

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collect calls from a correctional facility on the following dates, even though plaintiff Barlow did

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not authorize or accept the collect calls or any charges therefor:

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Charge
2/28/02

$2.95

317102

$2.95

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3/12/02

$3.02

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3/12/02

$3.02

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3/12/02

$3.02

3/13/02

$2.95

3114/02

$3.02

3/14/02

$2.95

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6/10/02

$3.10

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7/8/02

$3.02

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First Amended Class Action Complaint for Damages

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7117102
7131/02

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$3.02
$2.95

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FIRST CAUSE OF ACTION

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(Bus. & Prof. Code §17200)

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22.

Plaintiffs reallege and incorporate herein by this reference each of the

allegations of paragraphs I through 21.
23.

Defendants' conduct as alleged above constituted unfair and deceptive

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conduct within the meaning of California Business and Professions Code § 17200 et seq ..

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24.

As a proximate result of defendants' said wrongful conduct, defendants

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dishonestly and wrongfully acquired and retained substantial monies at the expense of the

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members of the plaintiff class and the members of the general public. It would be unjust and

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inequitable for defendants to be permitted to retain the benefits of their wrongful conduct.

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Therefore, defendants should be required to disgorge and make restitution of all monies

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wrongfully obtained from the members of the plaintiff class or the general public pursuant to the
wrongful scheme set forth.
25.

In addition, the wrongful conduct of defendants presents a continuing

threat of injury to the members of the plaintiff class and the members of the general public in that
defendants have charged and continue to charge plaintiff and the members of the plaintiff class

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for collect calls from correctional facilities which such persons did not authorize or accept and

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has made it likely that members of the public have been and will continue to be wrongfully
charged for such calls.
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The unlawful conduct alleged herein is continuing and, unless restrained,

the defendants will continue to engage in such conduct.

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S
First i-.mended Class Action COlnplaint for Damages

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27.

By virtue of the foregoing, plaintiffs and the members of the plaintiff class

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pray for the relief hereinafter specified.

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SECOND CAUSE OF ACTION

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(Unjust Enrichment)

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28.

Plaintiffs reallege and incorporate herein by this reference each ofthe

allegations of paragraphs 1 through 27.
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By virtue of their inequitable conduct, defendants have been unjustly

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emiched at the expense, and to the detriment, of plaintiffs and each member of the plaintiff class.

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Plaintiffs and each member of the plaintiff class are therefore entitled to recover from defendants

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damages and restitution for unjust emichment all monies charged and collected by Evercom,

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directly or indirectly through Pacific Bell's billing service, for collect calls which such persons

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did not authorize or accept.

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30.

By virtue of the foregoing, plaintiffs and the members of the plaintiff

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class pray for the relief hereinafter specified.

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THIRD CAUSE OF ACTION

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(Accounting)

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31.

Plaintiffs reallege and incorporate herein by this reference each of the

allegations of paragraphs 1 through 28.
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The amounts owed to plaintiffs and the members of the plaintiff class by

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the defendants, and each of them, can only be ascertained by an accounting. Plaintiffs and the

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members of the plaintiff class do not have access to, and cannot gain access to, the records

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necessary to perform the accounting. Rather, such records are in the possession, custody and

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control of defendants. The amounts owed to plaintiffs and each member of the plaintiff class are

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First pffiended Class ActiOn Complaint for Damages

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owed as a result of defendants' wrongful conduct andlor duties arising from defendants' business
transactions with plaintiffs and the members of the plaintiff class, which duties defendants have

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breached.

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33.

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By virtue ofthe the foregoing, plaintiffs and the members of the plaintiff

class pray for the relief hereinafter specified ..

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PRAYER FOR RELIEF

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WHEREFORE, plaintiffs demands judgment against the defendants as follows:

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I.

Declaring this action to be a proper plaintiff class action.

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Awarding plaintiffs and all members of the plaintiff class damages in an

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amount which may be proved at trial, together with pre-judgment interest thereon.
3.

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plaintiff class or members of the general public.

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For restitution of all amounts wrongfully charged to members of the

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For classwide accounting of all wrongful charges for collect calls from

correctional facilities.

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5.

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(A)

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refrain from charging persons for collect calls from correctional

facilities not accepted or authorized;

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For injunctive relief requiring defendants to:

(B)

appropriately credit the accounts of all persons wrongfully charged

for collect calls from correctional facilities not accepted or authorized;

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II
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II

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First Amended Class Action Complaint for Damages

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5.

Granting plaintiffs such other and further relief as this Court may deem

just and proper, including an award of attorneys, experts and consultants' fees and costs incurred

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in prosecuting this action.
DATED: September

II, 2002

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LAW OFFICES OF EDWARD C. CASEY, JR.
EDWARD C. CASEY, JR. (State Bar #123702])
2100 Lakeshore Avenue, Suite A
Oakland, CA 94606
Telephone: (510) 208-4422
Facsimile: (510) 272-9999

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By:

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{, ~
Edward C. Casey, Jf.

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LAW OFFICES OF JOHN W. ALLURED
John W. Allured (S.B. #84770)
One Maritime Plaza, Suite 1040
San Francisco, California 94111
Telephone: (415) 675-2960

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BY:~
hn W. Allured

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FARROW, BRAMSON, BASKIN & PLUTZIK
Alan R. Plutzik (S.B. #77785)
Robert A. Bramson (S.B. #102006)
2125 Oak Grove Blvd., Suite 120
Walnut Creek, California 94598
Telephone: (510) 945-0200

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Attorneys for Plaintiff,
Individually and On Behalf of All
Others Similarly Situated

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first Amended Class Action Compl.aint for Damages

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PROOF OF SERVICE BY MAIL

I, Edward C. Casey Jr., declare that I am employed in the
City of Oakland, California. My business address is 2100
Lakeshore Avenue, Suite A, Oakland, California 94606.
I am
over the age of eighteen (18) years and am not a party to the
within action. On September 27, 2002, I served the following
document:

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[ENDORSED FILED] FIRST AMENDED CLASS ACTION
COMPLAINT FOR DAMAGES
A~ameda

County Superior Court Case No. 2002054255

on the parties listed below, by placing a true and correct copy
thereof addressed as follows:

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Zorah Braithwaite, Esq.
BINGHAM McCUTCHEN LLP
Three Embarcadero Center
San Francisco, California 94111
Walid S. Abdul-Rahim, Esq.
PACIFIC TELESIS GROUP LEGAL
140 New Montgomery Street, Room 1019
San Francisco, California 94105

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( X 1 BY MAIL - I placed each such sealed envelope, with
postage thereon fully prepaid for first-class mail, for
collection and mailing at Oakland, California, following
ordinary business practices, being familiar with the practice
of THE LAW OFFICES OF EDWARD C. CASEY JR. for processing
correspondence.

( 1 BY FACSIMILE - I caused the said document to be
transmitted by Facsimile machine to the number indicated after
the address(es) noted above.
( 1 BY PERSONAL SERVICE - I caused each such envelope to be
delivered by hand to the addressee(s) noted above.

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I declare under penalty of perjupY-9nder the laws of the
State of California that the f
Dated: September 27, 2002

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goi~'is

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true and correct.

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. Edward C. Casey Jr.