Prison Phone Justice

HON. BETH ANDRUS
Noted for: February 11, 2013
Without 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.
AMERICAN TELEPHONE AND
TELEGRAPH COMPANY and
T-NETIX, INC.,
Defendants.

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NO. 00-2-17565-5 SEA
CLASS ACTION
DECLARATION OF CHRIS R. YOUTZ IN
SUPPORT OF INTERLATA AND
INTRALATA CLASSES UNOPPOSED
MOTION FOR:
(1) PRELIMINARY APPROVAL OF
SETTLEMENT AGREEMENT;
(2) PRELIMINARY APPROVAL OF
PLAN OF ALLOCATION;
(3) DIRECTIVE TO SEND NOTICE; AND
(4) ESTABLISHMENT OF FINAL
APPROVAL HEARING

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Chris R. Youtz declares under penalty of perjury as follows:
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1.

I am one of the attorneys representing plaintiffs and the classes.

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The facts stated in this declaration are based on my personal knowledge.
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2.

I have been the attorney primarily responsible for this case from

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the time it was filed 12½ years ago. This is been a hard-fought case by all parties.
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Discovery has been extensive, involving thousands of documents, highly technical
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depositions taken across the country, and expert witnesses including professors in
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computer science, statisticians, damages experts, and even an expert in human
SIRIANNI YOUTZ SPOONEMORE
DECLARATION OF CHRIS R. YOUTZ– 1

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

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memory. This matter has been before the Washington Supreme Court twice (once

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where review was accepted), before Division I of Washington Court of Appeals twice,

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and before two administrative law judges and the full commission of the Washington

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Utilities and Transportation Commission. An appeal by AT&T from the WUTC’s final

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order was affirmed by the Thurston County Superior Court and is pending in Division

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II of the Washington Court of Appeals. Defendants twice sought discretionary review

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from the Washington Court of Appeals during the past year. In this Court there have

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been numerous motions for summary judgment on a variety of issues.

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3.

The net result of these orders and opinions is that AT&T was

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found liable under the Washington Consumer Protection Act for failing to make proper

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disclosure of rates for collect calls from 15 Washington Department of Corrections

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facilities from June 20, 1996 to December 31, 2000. The sole remaining issue to be tried

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was the amount damages to be paid to the class members.

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4.

This case was not easily resolved. The parties complied with the

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court ordered mediation last August using nationally recognized mediator Professor

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Eric Green, who was one of the founders of JAMS. The parties engaged in a full day

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mediation in Boston but left the session substantially apart. After the Court ruled on

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pending summary judgment motions, the parties engaged in direct settlement

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discussions, but had very different views of how the case should be resolved.

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5.

As trial approached, both parties agreed to a second mediation

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session, this time with former U. S. Magistrate Judge Edward Infante, a California

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mediator both parties’ counsel had previously used. That session failed to produce a

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settlement, but Judge Infante (ret.) continued to press and positioned the parties such

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that he issued a mediator’s proposal to settle the case. That proposal was for a cash

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payment of $45 million, which both parties accepted the day before trial began. The CR

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2A agreement confirming the settlement was signed the following day.
SIRIANNI YOUTZ SPOONEMORE
DECLARATION OF CHRIS R. YOUTZ– 2

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

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The settlement is an exceptional result for the Class. As with the

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settlement reached with T-Netix, AT&T class members who submit claims will likely

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receive 100 percent of the damages they would have received had the class received

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everything requested at the damages trial, even after deduction for attorney fees, costs

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and expenses. It is also likely there will be a substantial residual amount available to

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distribute to the Legal Foundation of Washington and other organizations eligible

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under CR 23(f).

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7.

AT&T claimed that the maximum amount that could be awarded

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was $33 million. The Class intended to argue that the estimated damages should be

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approximately $57 million. The Class’s damages were based in large part on estimating

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the number of class members who could not be identified but who would each be

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eligible to receive a statutory damages award of $200. The Class located approximately

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65,000 names or addresses of potential class members. For approximately 90,000

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telephone numbers, however, the Class could not locate names or addresses through

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data services or reverse directories. The Class’s experts estimated the number of class

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members by extrapolating from information available from known class members.

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Although the Class believes its methodology was sound, any estimation is subject to

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attack on the grounds that it is speculative. Further, AT&T argued that at least 17% of

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the charges for the collect calls were not paid by the class members and should be

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excluded from damages. The Class included no deduction for alleged “bad debt” in its

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calculations. There was room for debate on several damages issues and the jury could

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have determined a damages amount anywhere between the figures offered by the

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parties.

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8.

A major factor in our recommendation to settle for the amount

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proposed by the mediator is the length of the case. The case has been pending for more

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than a decade, and if we proceeded to trial there was little doubt that the parties would
appeal various decisions, delaying resolution for another 2 to 3 years. Some class
SIRIANNI YOUTZ SPOONEMORE
DECLARATION OF CHRIS R. YOUTZ– 3

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

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members are now deceased, and many have relocated from addresses and telephone

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numbers they had during the 1996-2000 time period. Further delay would make it even

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more difficult to distribute funds to class members. Since the settlement will likely

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allow class members submitting claims to be paid in full even after deduction for fees

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and expenses it seems appropriate to bring this litigation to an end.

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I have handled class action litigation for over 30 years. Based on

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the factors outlined above, I believe that $45 million is a fair and reasonable settlement

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for the Class and request this amount be preliminarily approved by the Court.

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10.

The terms of the agreement are contained in Appendix 1 to our

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motion for preliminary approval. The terms of that document were negotiated and

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discussed in a session with the mediator.

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11.

The CR 2A agreement provides for a long form agreement to be

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negotiated by the parties. On January 22, the date that the CR 2A agreement was

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signed, we forwarded a proposed long form agreement to counsel for AT&T that was

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based on the long form agreement signed by T-Netix, which the court has preliminarily

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approved. AT&T has sought to add additional terms to that long form agreement that

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were not accepted when the CR 2A agreement was negotiated. We advised AT&T that

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we would be filing the motion for preliminary approval today based on the CR 2A

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agreement. As we explained to AT&T we cannot delay seeking approval of the agreed

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outline of the settlement, the notices, and the distribution plan while they seek

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arbitration to add terms to the long form agreement, which would delay payment to

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class members.

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DATED: February 1, 2013, at Seattle, Washington.

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/s/ Chris R. Youtz
Chris R. Youtz (WSBA #7786)

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SIRIANNI YOUTZ SPOONEMORE
DECLARATION OF CHRIS R. YOUTZ– 4

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

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State of Washington, that on February 1, 2013, I caused a copy of the foregoing

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document to be served on all counsel of record in the manner shown and at the

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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

[x] 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

[x] By Email
cpeters@schiffhardin.com
dscott@schiffhardin.com
bjosias@schiffhardin.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

[x] 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

[x] By Email
joyce.stephanie@arentfox.com

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DATED: February 1, 2013, at Seattle, Washington.
/s/ Chris R. Youtz
Chris R. Youtz (WSBA #7786)

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SIRIANNI YOUTZ SPOONEMORE
DECLARATION OF CHRIS R. YOUTZ– 5

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