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Salim v. Jpay, Inc.

United States District Court, E.D. Texas, Sherman Division

April 16, 2019

OUMER SALIM, on behalf of himself and others similarly situated
v.
JPAY, INC.

          JOHNSON, JUDGE

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MAZZANT, JUDGE

         Came on for consideration the report of the United States Magistrate Judge in this action, the matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On March 25, 2019, the report of the Magistrate Judge (the “Report”) (Dkt. #15) was entered, containing proposed findings of fact and recommendations that Plaintiff Oumer Salim's (“Plaintiff” or “Settlement Class Representative”) Unopposed Motion for Preliminary Approval of Class Action Settlement and Certification of Settlement Class (the “Motion for Preliminary Approval”) (Dkt. #12) against Defendant JPay, Inc. (“Defendant” or “JPay”) be granted. See id.

         Having received the Report of the United States Magistrate Judge, and no objections thereto having been timely filed, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge's report as the findings and conclusions of the Court.

         I. BACKGROUND

         Plaintiff Oumer Salim (“Plaintiff” or “Settlement Class Representative”) brought this class action against JPay, Inc. (“JPay” or “Defendant”) (Defendant and Plaintiff shall be referred to collectively as the “Parties”) on October 12, 2018 (Dkt. #1). In the Class Action Complaint (“Complaint”) (Dkt. #1), Plaintiff asserts, inter alia, claims for breach of express warranty; violation of the New York Deceptive Trade Practices Law, GBL Section 349; breach of contract, including the covenant of good faith and fair dealing; unjust enrichment; unconscionability; and entitlement to injunctive relief. According to the Complaint, JPay provides video conferencing services to prisons throughout the country. Family and friends who would otherwise be unable to visit an incarcerated person can use the service offered through JPay to have a “Video Visitation.” JPay charges for these Video Visitation sessions in thirty minute increments. However, Plaintiff has alleged that complaints from around the country indicate families and friends of inmates contend that video sessions do not last the entire thirty minute session. Plaintiff brings this action on behalf of himself and all natural persons who, after December 1, 2009, paid a fee to JPay for a thirty minute Video Visitation session and allegedly received less than a thirty minute session, for any reason, to recover for JPay's failure to deliver the service as promised and paid for.

         The Court has not yet certified a class. Through negotiations of counsel, however, the Parties have come to a settlement agreement that they believe adequately compensates the class. The Parties have agreed to resolve the claims asserted in the Complaint in their entirety and the Parties have reached a tentative settlement, subject to this Court's approval.

         Having reviewed the Settlement Agreement[s1] and Release, including the exhibits attached thereto (together, the “Settlement Agreement” or “Settlement”), and all prior proceedings herein, and for good cause shown, hereby GRANTS Plaintiff's Motion for Preliminary Approval (Dkt. #12) as follows:

         1. Class Certification for Settlement Purposes Only.

         For settlement purposes only, and pursuant to Federal Rule of Civil Procedure 23(b)(3) and (e), the Court provisionally certifies this class. The “Claimant Class” or “Class Member” is defined as all natural persons who paid a fee to JPay for a thirty minute Video Visitation session and allegedly received less than a thirty minute session for any reason. Excluded from the Claimant Class are JPay's officers, directors, affiliates, legal representatives, employees, successors, subsidiaries, and assigns. Also excluded from the Claimant Class is any judge, justice, judicial officer, or arbiter presiding over this matter and the members of their immediate families and judicial staff.

         A “Transferrable Video Visitation Session” shall be defined as one video visitation session that entitles the original recipient, or its transferee, to a video conference with an eligible incarcerated individual that can last up to thirty minutes. The Transferrable Video Visitation Session expires sixty days from the date it is sent out by JPay, and can be transferred to any other eligible non-incarcerated individual with a JPay account (though such transfer will not alter the expiration date).

         The Court provisionally finds, for settlement purposes only, that:

         (a) The “Settlement Class” is all members of the Claimant Class who fail to timely and properly opt out of the Settlement provided by the Settlement Agreement;

         (b) the “Settlement Period” shall be defined as the period from, and including, December 1, 2009, through the date this Court grants preliminary approval of this Settlement. Members of the Claimant Class are enjoined from initiating or prosecuting any proceeding on any claim to be released unless and until the members of the Claimant Class have opted out of the class in the manner described below. With respect to the Settlement Period, the Settlement Class is barred from asserting any claims released herein;

         (c) there are issues of law and fact common to the Settlement Class;

         (d) the claims of the Settlement Class Representative are typical of and arise from the same operative facts and seek similar relief as the claims of the Settlement Class Members;

         (e) the Settlement Class Representative and Settlement Class Counsel will fairly and adequately protect the interests of the Settlement Class as the Settlement Class Representative has no interest antagonistic to, or in conflict with, the Settlement Class and has retained experienced and competent counsel to prosecute this matter on behalf of the Settlement Class;

         (f) questions of law or fact common to Settlement Class Members predominate over any questions affecting only individual members; and

         (g) a class action and class settlement is superior to other methods available for a fair and efficient resolution of this controversy.

         2. Settlement Class Representatives and Settlement Class Counsel.

         Plaintiff Oumer Salim is hereby provisionally designated and appointed as the Settlement Class Representative. The Court provisionally finds that for settlement purposes, the Settlement Class Representative is similarly situated to absent Class Members and therefore typical of the Class and that he will be an adequate Settlement Class Representative.

         The Court finds that the following counsel are experienced and adequate counsel and are hereby provisionally designated as Settlement Class Counsel pursuant to Federal Rule of Civil Procedure 23(g): Bruce Steckler, Steckler Gresham & Cochran, PLLC.

         3. Preliminary Settlement Approval.

         Upon preliminary review, the Court finds that the proposed Settlement is fair, reasonable, and adequate to warrant providing notice of the Settlement to the ...


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