Judd v Att Wa Mot for Prelim Approval of Settlement Phone Rate Nondisclosure 2012

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HON. BETH ANDRUS
Noted for: February 11, 2012
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,

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Plaintiffs,
v.

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UNOPPOSED MOTION OF THE
INTERLATA CLASS AND
INTRALATA CLASS FOR:
(1) PRELIMINARY APPROVAL OF
SETTLEMENT AGREEMENT;

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NO. 00-2-17565-5 SEA
CLASS ACTION

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

(2) PRELIMINARY APPROVAL OF PLAN
OF ALLOCATION;
(3) DIRECTIVE TO SEND NOTICE; AND
(4) ESTABLISHMENT OF FINAL
APPROVAL HEARING

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MOTION FOR PRELIMINARY APPROVAL, ETC.

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

RELIEF REQUESTED

The InterLATA Call Recipients Class and the IntraLATA Call Recipients Class
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(collectively, the “AT&T Call Classes”), as defined by this Court’s Order dated
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February 25, 2012, have settled their claims against AT&T, Inc. Under the CR 2A
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Settlement Agreement (“Agreement”) AT&T will pay $45,000,000 to release the claims
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of the AT&T Call Classes. With AT&T’s experts finding damages at $33 million, and
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the Classes’ experts arriving at $57 million, the settlement figure is at the midpoint
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between these figures.1
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A copy of the signed Agreement is in Appendix 1 to this memorandum. The
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proposed Plan of Allocation is in Appendix 2, the proposed Class Notice is attached as
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Appendix 3, and the proposed Publication Notice is attached as Appendix 4. Under
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CR 23(e), Plaintiffs Sandy Judd, Tara Herivel and Columbia Legal Services move the
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Court to:
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(a)

preliminarily approve the Agreement;

(b)

preliminarily approve the Plan of Allocation;

(c)

authorize the mailing of notice to Class Members; and

(d)

establish a final settlement approval hearing and process.

II. EVIDENCE RELIEF UPON
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The Class relies upon the Declarations of Chris R. Youtz and Richard E.
Spoonemore.

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The parties had previously entered into a partial agreement with respect to the “overlap” period of
time when AT&T may have been correcting quoting rates because its intrastate and interstate rates were
the same. See IntraLATA and InterLATA Classes’ Unopposed Motion for Preliminary Approval of
Limited Settlement Agreement with AT&T (11/7/12). It called for a deduction of $425,000 from any jury
verdict. Id. The present agreement renders the prior agreement moot. The $45,000,000 figure reflects the
total amount AT&T will pay; i.e., that sum is not subject to a $425,000 reduction.
MOTION FOR PRELIMINARY APPROVAL, ETC. – 1

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

III. FACTS
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Overview of the Claims of the AT&T Call Classes.

The AT&T Call Classes allege that AT&T violated Washington’s telephone rate
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disclosure laws. See RCW 80.36.5102, 80.36.5203, WAC 480-120-141 (1991) and WAC
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480-120-141 (1999).

Under those statutes and regulations, a telecommunications

company operating as an “operator service provider” must provide consumers with
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accurate verbal rate disclosures for collect calls. Failure to comply is a per se violation
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of Washington’s Consumer Protection Act.4
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Under orders entered last fall, the Classes prevailed on summary judgments
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regarding AT&T’s liability.

See e.g. Order Granting in Part and Denying in Part

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The legislature finds that a growing number of companies provide, in a nonresidential
setting, telecommunications services necessary to long distance service without
disclosing the services provided or the rate, charge or fee. The legislature finds that
provision of these services without disclosure to consumers is a deceptive trade
practice.

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RCW 80.36.510.
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This statute directs the Washington Utilities and Transportation Commission to promulgate
specific disclosure regulations:

The utilities and transportation commission shall by rule require, at a minimum, that
any telecommunications company, operating as or contracting with an alternate
operator services company, assure appropriate disclosure to consumers of the
provision and the rate, charge or fee of services provided by an alternate operator
services company.

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This statute provides that:

RCW 80.36.520. Those regulations are set forth in WAC 480-120-141.
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The statute specifically provides:
In addition to the penalties provided in this title, a violation of RCW 80.36.510, RCW
80.36.520, or RCW 80.36.524 constitutes an unfair or deceptive act in trade or commerce
in violation of chapter 19.86 RCW, the consumer protection act. Acts in violation of
RCW 80.36.510, RCW 80.36.520, or RCW 80.36.524 are not reasonable in relation to the
development and preservation of business, and constitute matters vitally affecting the
public interest for the purpose of applying the consumer protection act, chapter 19.86
RCW. It shall be presumed that damages to the consumer are equal to the cost of the
service provided plus two hundred dollars. Additional damages must be proved.

RCW 80.36.530.
MOTION FOR PRELIMINARY APPROVAL, ETC. – 2

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

Plaintiffs’ Motion for Partial Summary Judgment that AT&T and T-T-Netix Violated

WUTC Regulations (9/21/12); Order on AT&T’s Motion for Clarification (10/9/12).

Trial was scheduled to begin on January 22, 2013 to determine the damages that AT&T

should pay.

AT&T and Class Counsel began settlement discussions in a mediation in Boston

with Professor Eric D. Green, one of the founders of JAMS, on August 29, 2012. With

several dispositive motions pending at that point, the parties were far apart and the

mediation failed. In December of 2012, after the summary judgment motions had been

decided, Plaintiffs offered to re-engage in settlement discussions. AT&T’s counsel and

Class Counsel discussed approaches to settlement after this Court’s January 4, 2013

hearing. The parties attempted to resolve the case through direct discussions. Those

efforts stalled the following week.

California with a nationwide reputation for resolving difficult disputes, had a last-

minute cancellation and the parties met in Los Angeles for a mediation on January 14,

2013. Although that mediation failed as well, some progress was made. Judge Infante

re-engaged the parties on January 18, 2013 with no success. Finally, on January 21 – the

day before trial – Judge Infante made a mediator’s proposal at $45,000,000. It was

accepted by both parties late in the day on January 21. Trial was pushed back a day

while the parties discussed the other terms. A CR 2A agreement was signed on January

22 and provided to the Court.

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Overview of Settlement Agreement.

Judge Edward Infante (ret.), a mediator in

AT&T’s Payment of $45,000,000.

Under the Agreement, AT&T will pay $45,000,000 to resolve the claims brought
by the AT&T Call Classes. Agreement, ¶1.

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MOTION FOR PRELIMINARY APPROVAL, ETC. – 3

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

Mutual Releases.

In return, the AT&T Call Classes will provide “a full release of all claims that

either class has, had, or may have in the future against AT&T relating to or arising out

of the facts alleged in this lawsuit.” Agreement, ¶2.
3.

Attorney Fees, Costs and Costs of Administration.

The Settlement Amount is also used to pay for attorney fees, litigation costs,

notice costs and costs of administration. Agreement, ¶¶1, 3, 6. All such payments

must be approved and authorized by the Court. Id.
4.

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The Agreement calls for a case contribution awards not to exceed $50,000, also
subject to approval by the Court. Agreement, ¶6.

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Case Contribution Awards.

Notice

Counsel for the Class is solely responsible for drafting a notice to be sent to the
class members and submitting the notice for Court approval. Agreement, ¶3.

The Plan of Allocation

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Counsel for the Class is responsible for preparing a plan for distribution of
settlement funds to class members for approval by the Court. Agreement, ¶3. The
proposed Plan of Allocation mirrors the distribution plan preliminarily approved by
this Court for the T-Netix settlement, and is designed to provide an easy mechanism
for members of the AT&T classes to receive distributions. Agreement, ¶3.
a.

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Submitting Claims

The Plan of Allocation provides four ways for a class member to receive a
distribution.

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MOTION FOR PRELIMINARY APPROVAL, ETC. – 4

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

(i)

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“Presumptive awards” are made to AT&T Call Class Members identified
through a reverse phone look-up. These individuals will receive claim forms that have
been pre-filled out using the CDR data, which includes the maximum amount that the
member can receive.

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The individual receiving the form need only verify the

information (to the best of their ability to do so), sign and return the form.
Alternatively, these individuals can claim their presumptive awards though a webbased claim process. Plan of Allocation, ¶2.a.
(ii)

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Presumptive Awards

Minimal Proof Award

Individuals not entitled to a presumptive award may seek a “minimal proof
award” by providing a telephone number and signing a declaration supplied to them
they were assigned that number, or accepted calls at that number, during the Class
Period. Based on this information, the award will be based on the cost of the calls as
reflected in the CDR data associated with that number, plus two hundred dollars. Plan
of Allocation, ¶2.b.
(iii)

Proof Award

If an AT&T Call Class Member cannot recall the phone number he or she may

have used to receive collect calls, then that individual can still receive a “proof award.”

This award, totaling two hundred dollars, will be made if an individual (1) declares he

or she accepted a call, or a call was accepted on the person’s account, (2) can identify

the facility from which the call originated, and (3) can identify the address were the call

was received. (If this information permits the identification of the telephone number

through Class Counsel’s database, then the claimant might then be entitled to a

minimal proof award.) Plan of Allocation, ¶2.c.

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MOTION FOR PRELIMINARY APPROVAL, ETC. – 5

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

(iv)

Finally, the plan has a “catch-all” provision which permits the claims

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administrator to pay claims based on other reasonable evidence or data sufficient to
establish, on a more likely basis, that the AT&T Call Class Member is entitled to an
award. Plan of Allocation, ¶2.d.
b.

Claims Arbitrator

Any disputes or questions regarding any aspect of the claims process is subject

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“Catch-All” Proof

to binding adjudication by a Claims Arbitrator, identified as the Hon. George Finkle
(ret.). Plan of Allocation, ¶6.
c.

Excess or Insufficient Funds

Class Counsel anticipates all class members filing claims will receive 100% of

what they are owed and that a significant residual fund will remain after those

payments and attorney fees, contribution payments, and all expenses are paid. Subject

to Court approval, the parties agreed that: (1) twenty-five percent of the residual fund

would be distributed to the Legal Foundation of Washington as provided in

CR 23(f)(2); (2) AT&T may recommend recipients to the Court to receive no more than

twenty-five percent of the residual fund, subject to certain parameters and restrictions;5

and (3) Class Counsel will make recommendations to the Court for distributing the

remaining money (at least fifty percent of the residual fund). Agreement, ¶4. AT&T

and Class Counsel have the right to object to each other’s recommendations for “good

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Under the Agreement, AT&T’s recommendation to the Court must (1) comply with CR 23(f) and,
(2) be designated to an entity which provides, directly or indirectly, educational, financial, or other
assistance to (i) prisoners or former prisoners in Washington State, (ii) the family members of prisoners
or former prisoners in Washington State, or (iii) any legal aid or services origination (or their umbrella
organizations, including the Legal Foundation of Washington) operating exclusively or nearly
exclusively in Washington State which provides educational, financial, or other services for prisoners or
former prisoners in Washington State, or the family members of prisoners or former prisoners.”
Agreement, ¶4.
MOTION FOR PRELIMINARY APPROVAL, ETC. – 6

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

cause.” Id., ¶4. The Court, however, retains “the ultimate authority with respect to the

distribution” of all the residual funds. Id.

In the highly unlikely event that insufficient funds are available to pay all claims

after the payment of fees, costs, cost of administration and an incentive award, then

class members will receive a pro rata share of their original claim amount. Plan of

Allocation, ¶1.

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IV. LAW AND ARGUMENT
A.

The Court Should Preliminarily Approve the Agreement.

Legal Standards for Approval.

Civil Rule 23(e) provides that “[a] class action shall not be dismissed or

compromised without the approval of the court, and notice of the proposed dismissal

or compromise shall be given to all members of the class in such manner as the court

directs.” CP 23(e).

members. Pickett v. Holland America Line-Westours, Inc., 145 Wn.2d 178, 188, 35 P.3d 351

(2001). These are evaluated under the following criteria: “the likelihood of success by

plaintiffs; the amount of discovery or evidence, the settlement terms and conditions,

recommendation and experience of counsel; future expense and likely duration of

litigation, recommendation of neutral parties, if any; number of objectors and nature of

objections; and the presence of good faith and the absence of collusion.” Id. at 188-89.

The review ensures class members are treated fairly and equitably:

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The standard is reasonableness, and protecting absent class

The above list is not exhaustive, nor will each factor be
relevant in every case. Officers for Justice, 688 F.2d at 625.
“The relative degree of importance to be attached to any
particular factor will depend upon and be dictated by the
nature of the claim(s) advanced, the type(s) of relief sought,
and the unique facts and circumstances presented by each
individual case.” Id. This is a delicate, albeit largely
unintrusive inquiry by the trial court.
MOTION FOR PRELIMINARY APPROVAL, ETC. – 7

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

[T]he court's intrusion upon what is otherwise
a private consensual agreement negotiated
between the parties to a lawsuit must be
limited to the extent necessary to reach a
reasoned judgment that the agreement is not
the product of fraud or overreaching by, or
collusion between, the negotiating parties, and
that the settlement, taken as a whole, is fair,
reasonable and adequate to all concerned.

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Id. It is not the trial court's duty, nor place, to make sure that
every party is content with the settlement. Indeed, this
would contravene the very nature of consensual settlements.
Rather, the trial court should look to the possibility of
inequitable treatment between class members.

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Id. at 189.
Judicial review of a proposed class settlement requires two steps: a preliminary

approval review and a final fairness hearing.

commitment to approve the final settlement; rather, it is a determination that “there are

no obvious deficiencies and the settlement falls within the range of reason.” Smith v.

Professional Billing & Management Services, Inc., 2007 WL 4191749, *1 (D.N.J. 2007) (citing

In re Nasdaq Market-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D. N.Y. 1997)). See also

MANUAL

preliminarily approved, then notice of the proposed settlement and the fairness

hearing is provided to class members. At the fairness hearing, class members may

object to the proposed settlement. The Court then decides whether final approval is

appropriate.

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FOR

Preliminary approval is not a

COMPLEX LITIGATION, Fourth (2004), § 21.632 at 320. If an agreement is

The Likelihood of Success.

The Class prevailed on the liability issues in this case before the WUTC and this
Court. All that remained to be tried was damages. AT&T’s exposure ranged from $33
million (AT&T’s experts) to $57 million (the Classes’ experts). The Settlement Amount

MOTION FOR PRELIMINARY APPROVAL, ETC. – 8

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

falls squarely within this range. The damages trial involved issues of statistics

complicated by AT&T claims of bad debt and the fact that the results depended on

incomplete information from more than a decade ago. There was room for debate on

several damages issues and the jury could have determined a damages amount

anywhere between the figures offered by the parties. Youtz Decl. ¶ 7.
3.

The Settlement Terms and Conditions.

The Agreement is a straightforward “payment for release” settlement. Attorney

fees, costs, expenses and case contribution award payments are all subject to review

and approval by the Court, with no distributions being made until authorized.

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This matter has been before the Washington Supreme Court twice (once where
review was accepted), before Division I of Washington Court of Appeals twice, and
before two administrative law judges and the full commission of the Washington
Utilities and Transportation Commission. An appeal by AT&T from the WUTC’s final
order was affirmed by the Thurston County Superior Court and is pending in Division
II of the Washington Court of Appeals. Defendants twice sought discretionary review
from the Washington Court of Appeals during the past year. In this Court there have
been numerous motions for summary judgment on a variety of issues. Youtz Decl., ¶ 2.

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Future Expense and Duration of Litigation.

Had this case progressed through trial, AT&T undoubtedly would have
appealed the numerous rulings made by the Court on liability. Without this Settlement,
the liability issues could delay resolution of this litigation for several more years. The
Settlement puts to rest all potential or actual appeals by AT&T.6

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AT&T preserved its right to continue the Division II appeal to argue that T-Netix should be the
operator service provider. That appeal will not affect the Settlement. Agreement, ¶7.
MOTION FOR PRELIMINARY APPROVAL, ETC. – 9

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

The Settlement resulted from Arms-Length Negotiations.

Negotiations with AT&T commenced with the assistance of Professor Eric

Green, a Boston-based professor/mediator and one of the founders of JAMS. See

www.resolutionsllc.com/principals.htm.

attempted direct discussions. Those failed as well. To resolve the case prior to trial, the

parties traveled to Los Angeles to mediate with Judge Edward Infante (ret.) at JAMS.

See www.jamsadr.com. It was only with the assistance of Judge Infante (ret.) who, after

a full day of mediation and two follow-up attempts, finally made a mediator’s proposal

of $45,000,000 on the day before trial. Participation of an independent mediator in

settlement negotiations “virtually insures that the negotiations were conducted at

arm’s length and without collusion between the parties.” Bert v. AK Steel Corp., 2008

WL 4693747, *2 (S.D. Ohio, Oct. 23, 2008). See also In re Toys R Us Antitrust Lit., 191

F.R.D. 347, 352 (E.D. N.Y. 2000). This case was the poster child for an “arms-length

negotiation.” See Youtz Decl. Re: Preliminary Approval, ¶¶4-5.

When that was unsuccessful, the parties

There was Sufficient Discovery.

As the Court is aware, this case settled on the eve of trial only after a mountain

of motions. In the twelve-plus years leading up to the settlement, extensive discovery

occurred. Tens of thousands of documents were produced, and depositions of both

fact and expert witnesses took place over the country. The depth of discovery was

evident in material filed to support the cross-motions for summary judgment.

Discovery was more than “sufficient” – it was exhaustive.

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The Proponents of the Settlement are Experienced in
Similar Litigation and Recommend Settlement.

Class counsel is highly experienced in class action litigation, is intimately

familiar with all aspects, and strongly recommends that that Agreement be approved.

MOTION FOR PRELIMINARY APPROVAL, ETC. – 10

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

Youtz Decl. Re: Preliminary Approval, ¶9; Spoonemore Decl. Re: Preliminary

Approval, ¶4.

The Proposed Notice, Opportunity to Submit Objections and
Fairness Hearing safeguard the Interests of Class Members.

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The Court should also approve the proposed notice, and direct it be mailed to
each class member. See Appendix 3. This proposed notice adequately summarizes the

Agreement, informs AT&T Call Class Members where they can get further

information, explains how they can file objections, and informs them of the date and

time of the settlement approval hearing. See Appendix 3. Any interested AT&T Call

Class Member will consult with Class Counsel or an attorney of his or her own

choosing. Those who wish can get more information about the Agreement by calling

Class Counsel, looking at the website www.ratedisclosure.com, or calling a toll-free

number. As shown by Appendix 4, notice of the settlement shall be published in several

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newspapers across the state, including the major newspapers for Seattle, Tacoma,
Spokane, and Everett, as well as legal and prison-related publications.

A Final Approval Hearing Should Be Set.

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AT&T Call Class Members with comments, concerns, or objections to any aspect
of the Agreement will be provided with an opportunity to submit written material for

the Court’s consideration. AT&T Call Class Members who wish to appear in person to

address the Court with any comments, concerns or objections should also be provided

with an opportunity to appear at a hearing before the Court decides whether to finally

approve the Agreement.

AT&T Call Class Members who wish to appear in person should notify the

Court and the parties of their desire to be heard, with a statement of the issue or issues

they would like to address. The proposed notice and proposed order submitted with
MOTION FOR PRELIMINARY APPROVAL, ETC. – 11

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

this motion requires such notice be given, so the Court and the parties can consider and

address the specific issues that class members wish to raise at the hearing. Finally, the

Court should set a hearing date to consider objections and/or comments and to decide

whether the Agreement should be finally approved.

D.
6

Proposed Scheduling Order.

The AT&T Call Class proposes that the Court issue a scheduling order with

preliminary approval of the Settlement Agreement. The proposed Order includes a
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proposed schedule which includes deadlines for (1) notice to be sent; (2) Class Counsel
to file for attorneys’ fees and costs; (3) comments and objections from AT&T Call Class
Members to be filed; and (4) the motion for final approval of the Settlement.
V. CONCLUSION

The Agreement and Plan of Allocation should be preliminarily approved, with

notices sent to AT&T Call Class Members and a final hearing scheduled. A proposed

Order is submitted with this motion.

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DATED: February 1, 2013.
SIRIANNI YOUTZ SPOONEMORE
/s/ Chris R. Youtz
Chris R. Youtz (WSBA #7786)
Richard E. Spoonemore (WSBA #21833)
Attorneys for Plaintiffs Judd, Herivel,
Columbia and the AT&T Call Classes

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MOTION FOR PRELIMINARY APPROVAL, ETC. – 12

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

CERTIFICATE OF SERVICE
1

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

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

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MOTION FOR PRELIMINARY APPROVAL, ETC. – 13

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

Appendix 1

SIDLEY AUSTIN LLP

IDLEYI

SIDLEY AUSTIN

LLP

BEIJING

LOS ANGELES

ONE SOUTH DEARBORN STREET

BRUSSELS

NEW YORK

CHICAGO, IL 60603

CHICAGO

PALO ALTO

(312) 653 7000

DALLAS

SAN FRANCISCO

(312) 853 7036 FAX

FRANKFURT

SHANGHAI

GENEVA
HONG KONG

SINGAPORE
SYDNEY

HOUSTON

TOKYO

LONDON

WASHINGTON, D,C,

cdouglas@sldley,com
(312) 853 1706

FOUNDED 1866

January 22,2013

Via Email Only
Chris R. Youtz
Sirianni Youtz Spoonemore
999 Third Avenue, Suite 3650
Seattle, Washington 98104
Re:

Judd, et al. v. AT&T, et al.
King County Superior Court No. 00-2-17565-5 SEA

Dear Chris:
This CR 2A letter confirms the settiement that has been reached between .A.T&T and Lhe
two classes certified by the Court on February 23,2012, the "InterLATA Call Recipients Class"
and the "IntraLATA Call Recipients Class." The tenns, which are fully enforceable, are as
follows:

Payment by AT&T of $45,000,000, inclusive of fees, costs, cost of
administration, costs of notice and incentive payments. This is an "all in" net
figure. AT&T will bear no responsibility to the classes or class counsel beyond
this figure. The money will be wired to an escrow account established by class
counsel by the close of business on Thursday, March 21,2013. This money will
be held pending fmal approval of the settlement. Any interest generated on this
account will belong to the beneficiaries of the settlement.

Mutual releases, including a full release of all claims that either class has, had, or
may have in the future against AT&T relating to or arising out of the facts alleged
in this lawsuit.

The procedure for distributing funds to class members shall be detennined by
class counsel with approval by the Court. Class counsel intends to use a method
similar to the method approved by the Court with respect to the T-Netix

Sidley AusUn LLP is a limited liobill!)' partnership practicing in affiliation with other Sidley Austin pertnerships.

Chris R. Youtz
January 22, 2013
Page 2

settlement. Class counsel will draft and distribute notice to the class, after
approval by the Court.
4.

Any residual funds, as defined in CR 23(f)(1), shall be distributed as follows:
1.

As provided in CR 23(f)(2), twenty-five percent of the residual funds shall
be distributed to the Legal Foundation of Washington.

AT&T shall be permitted to recommend to the Court the designation of up
to twenty-five percent of the residual funds, subject to each of the
following:

The recommendation must comply with CR 23(f).

The funds must be designated to an entity which provides, directly
or indirectly, educational, financial, or other assistance to (i)
prisoners or former prisoners in Washington State, (ii) the family
members of prisoners or former prisoners in Washington State, or
(iii) any legal aid or services organizations (or their umbrella
organizations, including the Legal Foundation of Washington)
operating exclusively or nearly exclusively in Washington State
which provides educational, financial, or other services for
prisoners or formers prisoners in Washington State, or the family
members of prisoners or former prisoners.

Class counsel shall be permitted to object to AT&T's
recommendation for good cause.

The Court shall retain ultimate authority with respect to the
distribution of these residual funds.

Class counsel shall be permitted to recommend the distribution of the
remaining residual funds (which shall not be less than fifty percent of the
total residual funds) consistent with the requirements ofCR 23(f). AT&T
shall be permitted to object to class counsel's recommendation for good
cause. Any designation shall be subject to approval by the Court, who
shall retain ultimate authority with respect to the distribution of these
residual funds.

Chris R. Youtz
January 22,2013
Page 3

The settlement and allocation plan will be subject to approval by the Court after
notice is given to the class. Class counsel will file a motion seeking preliminary
approval of the settlement.

Class counsel will seek an award of attorney fees of up to thirty-five percent of
the gross settlement amount under the common fund doctrine. Class counsel will
seek reimbursement of its litigation costs actually incurred. Class counsel will
seek incentive awards for the class representatives in the sum of $50,000 each.
AT&T will not oppose counsel's request for fees, costs or incentive awards that
do not exceed these amounts. Attorney fees, costs and incentive awards must be
approved by the Court.

Nothing in this agreement shall be construed to prevent AT&T from continuing to
prosecute its appeal from the WUTC's Order 25 or its claim for indemnification
against T -N etix.

The parties will execute a fuller, formal settlement agreement that is not
inconsistent with the terms of this agreement. Any dispute over the terms,
interpretation andlor performance of this CR 2A letter or the long form agreement
is subject to final and binding arbitration before Hon. Edward Infante (Ret.).

Please sign below indicating your acceptance of these terms and return a copy to me.
Thank you for your efforts to resolve this matter.
Very truly yours,

Charles W. Douglas

cc:

Hon. Edward A. Infante (Ret.)

Appendix 2

PLAN OF ALLOCATION: AT&T CALL CLASS CLAIMS
Judd, Herivel and Columbia v. AT&T, T-Netix, Inc, No. 00-2-17565-5 SEA,
Superior Court of Washington, for King County

1. AT&T Call Class Award. Each AT&T Call Class Member’s maximum award
shall be equal to (a) the aggregate cost of all intraLATA collect calls from the
Former PTI Facilities accepted by the AT&T Call Class Member during the Class
Period, plus (b) the aggregate cost of all interLATA collect calls from the AT&T
DOC Facilities accepted by the AT&T Call Class Member during the Class
Period, plus (c) two hundred dollars. If the claimed maximum awards of all
AT&T Call Class Members exceed the Net Settlement Amount, then each AT&T
Call Class Member’s maximum award shall be reduced pro rata with all other
AT&T Call Class Members’ claims. If the claimed maximum awards of all AT&T
Call Class Members are less than the Net Settlement Amount, then any residual
funds shall be distributed as set forth in the Settlement Agreement, Section 7.
2. Methods of Proof of Claim
a. Presumptive Awards. AT&T Call Class members identified or matched,
by name and address, through a reverse phone look-up for accepted calls
shall be presumed to have a valid claim. A notice shall be sent to each of
these members indicating the amount of the presumed award. A claim
form, pre-filled out, will also be in the mailing. An AT&T Call Class
Member need only verify, sign and return the form to be entitled to an
AT&T Call Class Award. Alternatively, the individual may claim his or
her AT&T Call Class Award electronically though a web-based claim
process.
b. Minimal Proof Awards. AT&T Call Class members not entitled to a
presumptive award, but who can provide the claims administrator with a
telephone number that received either (a) an intraLATA collect call from a
Former PTI Facility during the Class Period and/or (b) an interLATA
collect call from a AT&T DOC Facility during the Class Period is entitled
to a minimal proof award if that individual does either of the following:
i.

declares or affirms the telephone number was assigned to them
during the Class Period, or

ii. declares or affirms they personally accepted the collect calls during
the Class Period made to that number.
Upon receipt of the telephone number and declaration or affirmation, the
claims administrator shall determine the amount of the claim by reference
to the call detail data associated with the identified telephone number(s).
c. Proof Awards. AT&T Call Class Members not entitled to a presumptive
award and cannot recall the telephone number which would have

received collect call from the Former PTI Facilities or AT&T DOC Facilities
during the Class Period shall be entitled to a AT&T Call Class Award
equal to two hundred dollars provided the member (1) declares or affirms
that the member accepted a call, or a call was accepted on the members’
account during the Class Period, (2) can identify the facility and inmate
from whom the call originated and the identified facility is a Former PTI
Facility or AT&T DOC Facility, and (3) can identify the address were the
call was received and the address indicates that the call would have been
intraLATA call from a Former PTI Facility or an interLATA call from an
AT&T DOC Facility.
d. “Catch-all” proof. The claims administrator may pay claims based on
other reasonable evidence or data sufficient to establish, on a more likely
than not basis, that the AT&T Call Class Member accepted a collect
intraLATA call from a Former PTI Facilities, or an interLATA call from an
AT&T DOC Facility, during the Class Period. Upon such a showing, the
AT&T Call Class Member is entitled to an AT&T Call Class Award equal
to two hundred dollars.
3. Duplicate Claims. If multiple claimants for the same awardoccurs, any
presumptive award shall take precedence. If there is no presumptive award
claimant, then the dispute over the proper recipients shall be determined by the
arbitrator, as set forth in Section 6, below.
4. Timing of Claims Submittal. Individuals will have no less than 21 days from
mailing the notice to claim an AT&T Call Class Award.
5. Fraud Investigation Authorized. The claims administrator may investigate any
claim where fraud or misrepresentation is suspected . The claims administrator
may refuse to pay any claim for any facially valid reason, referring any such
claims with an explanation of the issues implicated in the claim to the claims
arbitrator for final and binding adjudication.
6. Dispute Resolution/Claims Arbitrator. Hon. George Finkle (ret.) at JDR, LLC,
shall be appointed as the claims arbitrator. If he is unwilling or unable to serve,
then the Court shall appoint a claims arbitrator. The claims arbitrator shall have
the power to decide any and all disputed claims, and resolve any issues arising
out of the claims process. The arbitrator shall have as much discretion as
permitted by law to adjudicate issues and determine fair and just awards. The
claims arbitrator’s discretion includes, but is not limited to, issues of procedure
such as whether issues will be decided on written submission, telephone hearing,
in person hearing, etc. Any decision of the claims arbitrator shall be final and
binding.

7. Definitions
a. AT&T Call Class Member shall mean an individual in one or both of the
two classes represented by Named Plaintiffs Sandy Judd, Tara Herivel
and Columbia Legal Services certified by the Court in its Order dated
February 25, 2012 (including the Class Representatives) but excluding
individuals who have opted-out.
b. AT&T DOC Facilities shall refer to Washington State Reformatory
(Monroe), Twin Rivers Corrections Center, Indian Ridge Corrections
Center (Arlington), Special Offender Center (Monroe), Clallam Bay
Corrections Center, Washington Correction Center for Women (Purdy),
Olympic Corrections Center, Pine Lodge Pre-Release, Coyote Ridge,
Washington Corrections Center (Shelton), McNeil Island Penitentiary,
Washington State Penitentiary (Walla Walla), Airway Heights and
Tacoma Pre-Release.
c. Class Period is the time period of June 20, 1996 through December 31,
2000.
d. Former PTI Facilities shall refer to Clallam Bay, Washington Correction
Center for Women (Purdy), Coyote Ridge Corrections Center, and Pine
Lodge Work Pre-Release/Correction Center.
e. Net Settlement Amount is a value equal to $45,000,000.00 minus courtawarded attorney fees, costs, expenses, case contribution award, costs of
administration and any other expenses or deductions approved by the
Court.

Appendix 3

KING COUNTY SUPERIOR COURT, WASHINGTON STATE
Civil Action NO. 00-2-17565-5 SEA

NOTICE OF SETTLEMENT TO:
RECIPIENTS OF LONG DISTANCE INTRASTATE TELEPHONE CALLS
FROM INMATES AT CERTAIN WASHINGTON STATE PRISONS
BETWEEN JUNE 20, 1996 AND DECEMBER 31, 2000

SETTLEMENT OF A CLASS ACTION LAWSUIT MAY AFFECT YOUR RIGHTS
A court authorized this notice. This is not a solicitation from a lawyer.


Recipients of intrastate collect phone calls – calls within Washington – from inmates at certain
Washington Department of Corrections Institutions have sued AT&T alleging it violated the
Washington State Consumer Protection Act by failing to provide rate information for collect calls
originating from inmates between June 20, 1996 and December 31, 2000.



The court has certified those claims as a class action. You have been identified as a potential class
member because records indicate you may have accepted a collect call from an inmate in a
Washington State Department of Corrections Facility between June 20, 1996 and December 31, 2000.



The Class and AT&T have reached a $45,000,000 settlement, subject to approval by the Court, to
resolve all claims against AT&T. This notice summarizes the terms of that agreement, and informs
you of your rights.



The Court has granted preliminary approval of the settlement agreement to notify Class Members of
the proposed settlement and scheduling a hearing to determine whether the settlement is fair,
adequate and reasonable.

YOUR LEGAL RIGHTS AND OPTIONS
YOU MAY COMMENT ON THE
PROPOSED SETTLEMENT
AGREEMENT

You have the right to comment on the proposed Settlement Agreement.
You may object to any aspect of the proposed Settlement Agreement.
You may also support the proposed Settlement Agreement.
The Court will decide whether to approve or reject the proposed Settlement
Agreement at a hearing to be held on ______ at ____ in Courtroom ___, at
the King County Superior Court, 516 3rd Ave., Seattle, WA 98104.
You may submit written objections or comments for the Court to consider
by _______. This notice explains how and where you can submit these
written objections or comments. Even if you comment or object, you
MUST also make a claim in order to receive your share of the settlement.

YOU MAY MAKE A CLAIM FOR
YOUR SHARE OF THE
SETTLEMENT, IF APPROVED BY
THE COURT

YOU WILL RECEIVE NO
PAYMENT IF YOU DO NOTHING

If you wish to claim your share of the settlement, then you MUST
either (1) review and return the claim form included with this mailing,
or (2) go to www.ratedisclosure.com to claim your share.
If the settlement is approved by the Court, then your share of the settlement
will be mailed to you. This process may take several months.
If you do nothing, then you will not be entitled to receive any payment.
If you wish to receive a payment, you MUST make a claim.

QUESTIONS? CALL 1-800-000-0000 TOLL FREE, OR VISIT WWW.RATEDISCLOSURE.COM
PARA UNA NOTIFICATIÓN EN ESPAÑOL, LLAMAR O VISITOR NUESTRO WEBSITE

FREQUENTLY ASKED QUESTIONS
1. Why did I get this notice?
Records indicate that between June 20, 1996 and December 31, 2000, one or more collect calls carried
by AT&T were accepted by a telephone number registered in your name or registered to this
address from one or more of the following facilities: Washington State Reformatory (Monroe), Twin
Rivers Corrections Center, Indian Ridge Corrections Center (Arlington), Special Offender Center
(Monroe), Clallam Bay Corrections Center, Washington Correction Center for Women (Purdy),
Olympic Corrections Center, Pine Lodge Pre-Release/Correction Center, Coyote Ridge, Washington
Corrections Center (Shelton), McNeil Island Penitentiary, Washington State Penitentiary (Walla
Walla), Airway Heights, and Tacoma Pre-Release. These will be the “Covered DOC Facilities.”
A class action was certified regarding claims made in connection with these calls. The Court is now
considering whether to approve a settlement of these claims, and this notice describes how you may
object, support or otherwise comment on the settlement and how you may file a claim for a share of
the settlement if it is approved by the Court.

2. What does the proposed Settlement Agreement provide?
A copy of the settlement agreement may be found at www.ratedisclosure.com. The key provisions
are summarized below:
• Settlement Payment of $45,000,000
AT&T will pay $45,000,000 into a settlement account distributed to class members after the payment
of court-approved attorney fees, litigation costs, administrative expenses, and case contribution
award.
• Amount of Award and Plan of Allocation
A class member’s recovery is based on the cost of all qualified collect calls accepted during the Class
Period from the Covered DOC Facilities, plus two hundred dollars. Distributions to class members
will be made under an allocation plan enclosed with this notice. For example, if a class member
accepted ten collect calls and was charged $51.45 for those calls, then the class member would have
a claim for $251.45—the cost of all the calls plus $200.00.
Class counsel anticipates, but cannot guarantee, that sufficient funds will remain after the payment
of fees, costs, expenses, and a case contribution award to fully pay all class members’ claims. If,
however, insufficient funds remain to fully pay all claims then each claim will be subject to a pro rata
deduction. Any excess funds will be distributed to the Legal Foundation of Washington and other
organization approved by the Court under Washington Civil Rule 23(f).
• Attorney Fees, Costs and Expenses
Under the proposed settlement, attorneys’ fees, costs and expenses shall be paid out of the
settlement fund in an amount to be determined by the Court.
Class counsel is asking to be paid up to 35% of the gross settlement amount as attorneys’ fees and
approximately $500,000 for litigation costs and expenses. Any award of attorney fees, costs, and
expenses must be approved by the Court. Class counsel will file a motion with the Court for

QUESTIONS? CALL 1-800-000-0000 TOLL FREE, OR VISIT WWW.RATEDISCLOSURE.COM
PARA UNA NOTIFICATIÓN EN ESPAÑOL, LLAMAR O VISITOR NUESTRO WEBSITE
-2-

approval of their request for fees, costs and expenses. You may request a copy of the request be
provided to you when filed with the Court. Expenses incurred in the claims process will also be
paid out of the settlement funds prior to allocating awards to class members.
• Case Contribution Award
Named plaintiffs Sandy Judd, Tara Herivel and Columbia Legal Services will also each request a
case contribution payment for $50,000 out of the Settlement fund to represent the time, effort, and
risk it undertook in pursuing these class claims. The award will only be paid if approved by the
Court.
• Release
The Agreement provides for a release of AT&T from all obligations and liabilities arising for collect
calls from the Covered DOC Facilities during the Class Period.

3. How may I respond to the proposed Settlement Agreement?
If you wish to object to, comment on, or support the Settlement Agreement or the request for
payment of attorney’s fees, costs, expenses or case contribution awards, you must submit your
written comments by _____ to:
Attn: The Clerk of the Court
Re: Judd v. AT&T, T-Netix, Cause No. 00-2-17565-5SEA
KING COUNTY SUPERIOR COURT
516 3rd Ave.
Seattle, WA 98104
You must also send copies to:
Chris R. Youtz, Class Counsel
Richard E. Spoonemore, Class Counsel
SIRIANNI YOUTZ SPOONEMORE
999 Third Avenue, Suite 3650
Seattle, WA 98104

Charles W. Douglas, AT&T’s Counsel
SIDLEY AUSTIN PLLC
One South Dearborn Street
Chicago, IL 80603

You or your own lawyer may attend the Settlement Approval Hearing at your own expense. You
are not required to attend the hearing.

4. What is a class action and who is involved?
In a class action lawsuit, one or more people or entities called “Class Representatives” sue on behalf
of other people who have a similar claim. The people together are a “Class” or “Class Members.”
AT&T is called the “Defendant.” In a class action, one court resolves the issues for everyone in the
class – except for those people who exclude themselves from the class. The definition of the classes
can be found at www.ratedisclosure.com.
The case is Judd, et al. v. American Telephone and Telegraph Co., et al., Civil Action
No. 00-2-17565-5SEA, pending in King County Superior Court.

QUESTIONS? CALL 1-800-000-0000 TOLL FREE, OR VISIT WWW.RATEDISCLOSURE.COM
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-3-

5. What is this lawsuit about?
This lawsuit claims that AT&T failed to provide certain legally required rate information on collect
calls placed by inmates from Washington Department of Corrections facilities. It alleges that AT&T
must pay statutory damages to persons who accepted or paid for those calls, which the Court has
defined as $200 per person plus the cost of the collect calls accepted. This settlement resolves a
portion of those claims: certain collect calls received in Washington from inmates at Covered DOC
Facilities during the time period of June 20, 1996 through December 31, 2000.

6. Is there any money available now?
No money is available now because the Court has not yet decided whether to approve the
Settlement Agreement. However, if the Settlement Agreement is approved then you will be entitled
to an award. To receive your award, you MUST return a claim form (included with this mailing) or
make a claim by going to www._________ and following the instructions on how to make a claim.
Your claim must be submitted by: _________________. If the Court does not approve the Settlement
Agreement, then the case will return to litigation which may, or may not, result in a recovery.

7. Do I have to come to the Final Approval Hearing?
You need not attend the final approval hearing. You and/or your own lawyer may attend at your
own expense. If you wish to object to any aspect of the settlement, you may do so at the final
hearing provided you sent in your written objection by _________. If you did not file a written
objection to the settlement, you may not object at the hearing.

8. Are more details available?
Visit the website, www.ratedisclosure.com, where you will find important information and
documents, including the Settlement Agreement, the court’s Order Certifying the Class, the
Complaint, AT&T Answer to the Complaint, and information on filing claims. You may also obtain
more information by calling (800) 000-0000 or by writing to:
________________________________________________________.

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-4-

[CLASS MEMBER CLAIM DATA, VERIFICATION AND SUBMISSION DETAILS APPEAR HERE]

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-5-

Appendix 4

LEGAL NOTICE

If you received a collect telephone call from an inmate at a
Washington Department of Corrections Facility between June 20,
1996 and December 31, 2000, your rights may be affected by a
class action settlement.
A $45,000,000 settlement has been reached in a
class action lawsuit against AT&T. The Court
previously certified the lawsuit as a class action
and is now considering whether to approve the
settlement. This notice summarizes the
settlement, your rights, and how to file a claim
for a share of the settlement if it is approved by
the Court.

Who’s included?
You may be a member of the class if you
accepted an intrastate collect call carried by
AT&T from Washington State Reformatory
(Monroe), Twin Rivers Corrections Center,
Indian Ridge Corrections Center (Arlington),
Special Offender Center (Monroe), Clallam Bay
Corrections Center, Washington Correction
Center for Women (Purdy), Olympic Corrections
Center, Pine Lodge Pre-Release/Correction
Center, Coyote Ridge, Washington Corrections
Center (Shelton), McNeil Island Penitentiary,
Washington State Penitentiary (Walla Walla),
Airway Heights, and Tacoma Pre-Release
between June 20, 1996 and December 31, 2000.

What’s this about?
This lawsuit claims that AT&T failed to
provide required rate information on collect calls
from Washington Department of Corrections
facilities. The suit seeks statutory damages for
persons who accepted or paid for those calls,
which the Court has defined as $200 per person
plus the cost of the collect calls accepted.

What does the settlement provide?
The settlement provides: (1) payment of
$45,000,000, which will be distributed to class
members after the payment of court-approved
attorneys’ fees, litigation costs, administrative
expenses, and case contribution award; (2)
attorneys’ fees of up to 35% of the gross
settlement amount and approximately $500,000
for litigation costs and expenses; (3) $50,000 case
contribution awards to the Named Plaintiffs,
Sandy Judd, Tara Herivel and Columbia Legal
Services; and (4) release of AT&T from all
liability arising from the calls at issue in this
litigation. The Settlement Agreement may be
viewed at www.ratedisclosure.com.

How do you get an award and how much
will it be?
Using a QR app on a smart-phone, scan the QR
code below. This will take you directly to the claim
page of the website. Enter the information
requested to complete your claim and submit it.
You may also use a computer to submit a claim
online at www.ratedisclosure.com. Your claim
must be submitted by [MONTH 00, 0000]. A class
member’s payments will be based on the cost of all
qualified collect calls accepted during the Class
Period, plus $200. If, after the payment of fees,
costs, expenses and a case contribution award,
insufficient funds remain to fully pay all claims
then each claim will be subject to a pro rata
deduction. If the Court does not approve the
Settlement Agreement, then the case will return to
litigation which may, or may not, result in a
recovery.

What are your rights?
If you are a member of the class, you have the
right to object to, comment on, or support the
Settlement Agreement or the request for payment
of attorneys’ fees, costs, expenses or case
contribution award. You must submit your written
comments by [MONTH 00, 0000] to: (1) the Clerk
of the Court, Re: Judd v. AT&T, T-Netix, Cause No.
00-2-17565-5SEA, KING COUNTY SUPERIOR COURT,
516 3rd Ave., Seattle, WA 98104; (2) Chris R. Youtz
and Richard E. Spoonemore, Class Counsel,
SIRIANNI YOUTZ SPOONEMORE, 999 Third Avenue,
Suite 3650, Seattle, WA 98104; and (3) Charles W.
Dougas, AT&T’s Counsel, SIDLEY AUSTIN PLLC,
One South Dearborn Street, Chicago, IL 80603.
You or your own lawyer may also attend the
Settlement Approval Hearing at your own
expense, but you are not required to.

How can I get more information?
You may receive more information at
www.ratedisclosure.com, or by calling 1-888-6236176.
The case is Judd, et al. v. American Telephone and
Telegraph Co., et al., King County Cause No. 00-217565-5 SEA.

KCODE