United States District Court, W.D. Washington, Tacoma
JEFFREY REICHERT, individually and on behalf of all others similarly situated, Plaintiff,
KEEFE COMMISSARY NETWORK, L.L.C., d/b/a ACCESS CORRECTIONS; RAPID INVESTMENTS, INC., d/b/a RAPID FINANCIAL SOLUTIONS, d/b/a ACCESS FREDOM; and CACHE VALLEY BANK, Defendant.
ORDER ON MOTION FOR CLASS CERTIFICATION
B. Leighton United States District Judge.
MATTER is before the Court on Plaintiff Jeffrey
Reichert's Motion for Class Certification. Dkt. #69. This
class action lawsuit challenges the use of prepaid
“release cards” for reimbursing confiscated cash
to inmates as they are released from incarceration. Many
government facilities have opted to use these cards instead
of redistributing funds via cash or a check. However, unlike
those other methods, release cards carry hefty fees that
start depleting inmates' funds within hours of release.
Defendant Keefe Commissary Network, L.L.C., contracts with
government agencies to provide release cards, which are
managed by Defendant Rapid Investments, Inc., and issued by
Cache Valley Bank.
moves to certify both a national class, asserting claims
under the Electronic Funds Transfer Act (EFTA), and a
Washington subclass, asserting claims under EFTA, the Takings
Clause, and the Washington Consumer Protection Act (WCPA), as
well as for conversion and unjust enrichment. In his Reply,
Reichert also wishes to amend the class definitions to
include only inmates who were not offered a choice between
receiving a release card or some other form of reimbursement.
argues that class certification is appropriate because Rule
23(a)'s four requirements of numerosity, typicality,
commonality, and adequacy are satisfied. Reichert also
contends that Rule 23(b)(3)'s predominance requirement is
met because the central questions in this case focus on the
practice of providing inmates with activated, fee-laden cards
instead of a check or cash. Finally, Reichert argues that a
class action is the superior method of bringing these claims
because individual actions would not be financially feasible
and the class definitions are based on objective criteria.
contest certification on a number of bases but primarily
focus on typicality and predominance. Defendants argue that
Reichert is not typical of all class members because many
facilities provide inmates with a copy of Rapid's
cardholder agreement when they are released, creating
potential contractual defenses. Defendants contend that the
possibility that some class members formed contracts upon
release will raise numerous questions about the circumstances
of each inmates' release, which would vary according to
the procedures at each facility. Defendants also argue that a
national class would be unmanageable in light of the vast
amount of evidence and witnesses in other states. Finally,
Defendants assert that the government entities that contract
with Defendants are necessary parties under Rule 19 but that
they cannot be feasibly joined because the Court lacks
personal jurisdiction over agencies in other states.
following reasons, the Court conditionally GRANTS in part
The Use of Release Cards to Distribute Inmates'
Keefe Commissary Network, LLC, contracts with numerous
government agencies to provide hardware and software for
managing inmates' money during incarceration. Manning
Dec., Dkt. #76, at 2. One such service is the use of release
cards, which allow facilities to disperse any money in an
inmate's account on a prepaid card. Id. An
inmate's account may contain cash that was confiscated
when the inmate was originally booked or other funds
deposited for use while incarcerated. Id. at 2-3.
Keefe estimates that it contracts with around 25 government
agencies in Washington and over 700 agencies nationwide.
Id. at 3.
unlike reimbursing inmates via cash or a check, release cards
come with a schedule of fees. In addition to ATM and transfer
fees, inmates are also charged “weekly maintenance
fees.” Youtz, Dec., Dkt. #71, Exs. 2-4. The first of
these maintenance fees is incurred 36 or 72 hours after the
card is issued. Id. Keefe represents that inmates
may avoid fees altogether if they quickly withdraw their
funds from a MoneyPass ATM or get cash back. Dkt. #76, at 2.
However, because the cards are issued before an inmate
actually receives them, it is unclear how long inmates have
to do this.
provide release cards, Keefe contracts with yet another
company-Rapid Investments, Inc. Jackson Dec., Dkt. #78, at 1.
Rapid manages the prepaid cards and provides them to
government facilities. Id. at 2. Rapid also
contracts with Cache Valley Bank, which issues the cards, and
MasterCard, which sponsors the payment network. Id.
Rapid's release cards are paired with a cardholder
agreement containing, among other things, yet another fee
schedule and an arbitration provision. Id., Ex. 2.
Rapid states that it now attaches all its cards to a carrier
with the agreement but does not control if and how facilities
provide inmates with a copy of the agreement. Id. at
government facilities may offer inmates a release card as
their sole means of reimbursement, Keefe's standard
contract does not appear to require this. Dkt. #71, Exs. 2-4.
Keefe represents that government agencies have sole
discretion for determining their release procedures and that
some opt to give inmates a choice between a release card, a
check, or cash. Dkt. #76, at 3. Rapid states that it has no
knowledge of whether government entities offer inmates
options for reimbursement. Dkt. #78, at 2.
Plaintiff Reichert's Experience at the Kitsap County
October 21, 2016, Reichert was arrested by the Kitsap County
Sheriff's Department on suspicion of driving under the
influence of alcohol. Reichert Dec., Dkt. #70, at 2. During
booking, Reichert's wallet containing $176.77 in cash was
confiscated. Id. at 2. Reichert was taken to the
Kitsap County Jail at 12:30 a.m. on October 22 and released
four hours later. Id. Instead of returning his cash,
Kitsap County gave Reichert a prepaid release card loaded
with $176.77. Id. Jail staff offered Reichert no
alternate means for recovering his cash. Id.
Reichert also received no warnings or documentation regarding
the card, although Kitsap County states that it displays the
cardholder terms and conditions paperwork prominently next to
the release elevator. Id.; Thurmon Dec., Dkt. # 75,
November 2, Reichert went to an ATM to withdraw cash using
his release card. Id. He withdrew $160 but was
unable to take out as much money as he thought, so he
contacted Rapid to inquire about his account balance.
Id. at 3. Rapid sent Reichert an email showing his
account activity, which included two $2.50 “periodic
maintenance fees” on October 25 and November 1, and two
“issuer fees” on November 2 when he used the ATM.
Dkt. #70, Ex. 1. By November 8, the remaining $7.32 in his
account had been depleted through various other fees.
Procedural History and Class Definitions
filed his class action complaint on October 20, 2017. Dkt.
#1. On February 2, 2018, all three Defendants moved to compel
arbitration, citing the cardholder agreement for the release
cards offered by Rapid. Dkt. ## 36 & 40. The Court denied
the motions on the basis that Reichert never affirmatively
chose to be reimbursed with a card, eliminating the potential
for mutual assent under Washington law. Id. at 4-5.
the discovery process, Reichert propounded a number of
requests for documents related to Defendants' agreements
and communications with government entities. Second Youtz
Dec., Dkt. #86, Ex. 5-6. Defendants apparently refused to
produce documents concerning government entities other than
Kitsap County. Id. Defendants objected on multiple
grounds, but one basis was that the request was premature
because such documents were not required to decide class
moved to certify on January 18, 2019, and Defendants'
opposition briefs featured arguments about the different
procedures for releasing inmates at facilities other than
Kitsap. Dkt. ## 69, 74, & 77. Specifically, Defendants
state that some facilities offer inmates a choice between
receiving a card and another form of reimbursement, such as a
check. Reichert replied by amending the class definitions to
focus only on inmates that were not given an option about how
their money was distributed. Dkt. #85, at 5. The national
class definition now reads as follows:
All persons in the United States who, at any time since
October 20, 2016, were: (1) taken into custody at a jail,
correctional facility, detainment center, or any other law
enforcement facility, (2) entitled to the return of money
either confiscated from them or remaining in their inmate
accounts when they were released from the facility, (3)
issued a prepaid debit card from Keefe Commissary Network,
LLC, Rapid Investments, Inc., and/or Cache Valley Bank that
was subject to fees, charges, and restrictions and (4) not
offered an alternative method for the return of their money.
Id. For the Washington subclass, Reichert proposes
the following definition:
All persons who, at any time since October 20, 2013, were:
(1) taken into custody at a jail, correctional facility,
detainment center, or any other law enforcement facility
located in the state of Washington, (2) entitled to the
return of] money either confiscated from them or remaining in
their inmate accounts when they were released from the
facility, (3) issued a prepaid debit card from Keefe
Commissary Network, LLC, Rapid Investments, Inc., and/or
Cache Valley Bank that was subject to fees, charges, and
restrictions and (4) not offered an alternative method for
the return of their money.
seeking to certify a class must demonstrate that it has met
all four requirements of Federal Rule of Civil Procedure
23(a) (numerosity, commonality, typicality, and adequacy) and
at least one of the requirements of Rule 23(b). Under Rule
23(a), members of a class may sue or be sued as
representative parties only if: “(1) the class is so
numerous that joinder of all members is impracticable; (2)
there are questions of law or fact common to the class; (3)
the claims or defenses of the representative parties are
typical of the claims or defenses of the ...