Parrish et al v. National Football League Players Incorporated

Filing 720

MOTION For Final Order Approving Payments to GLA Class filed by Herbert Anthony Adderley. (Attachments: # 1 Proposed Order)(Katz, Ronald) (Filed on 10/5/2010)

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MANATT, PHELPS & PHILLIPS, LLP RONALD S. KATZ (Bar No. CA 085713) E-mail: [e-mail] RYAN S. HILBERT (California Bar No. 210549) E-mail: [e-mail] NOEL S. COHEN (California Bar No. 219645) E-mail: [e-mail] 1001 Page Mill Road, Building 2 Palo Alto, CA 94304-1006 Telephone: [phone] Facsimile: [phone] McKOOL SMITH, P.C. LEWIS T. LECLAIR (Bar No. CA 077136) E-mail: lleclair@mckoolsmith 300 Crescent Court, Suite 1500 Dallas, TX 75201 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION HERBERT ANTHONY ADDERLEY, on behalf of himself and all others similarly situated, Plaintiff vs. NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, a Virginia corporation, and NATIONAL FOOTBALL LEAGUE PLAYERS INCORPORATED d/b/a PLAYERS INC, a Virginia corporation, Defendants. CIVIL ACTION NO. C07 0943 WHA

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CLASS COUNSELS' STATUS UPDATE AND MOTION FOR FINAL ORDER APPROVING PAYMENTS TO THE GLA CLASS

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Counsel for the GLA Class ("Class Counsel") submit the following status update, and report concerning efforts to find additional class members and transmission of third Claim Forms to Class Members for whom they recently obtained updated address information. Class Counsel also seek final approval with respect to payments to the GLA Class, including determination of all remaining issues. I. BACKGROUND FACTS As this Court is aware, Class Counsel and their claims administrator, the Garden City Group (the "Claims Administrator"), have worked diligently since late 2009 to locate and send Claim Forms to each member of the GLA Class. On November 23, 2009, the Court granted Class Counsel's Motion for Final Approval of the Settlement Agreement and Proposed Plan of Distribution. Shortly thereafter, on December 11, 2009, Class Counsel caused the Claims Administrator to mail each Class Member for whom Class Counsel has a known address a first Claim Form and Release ("Claim Form"). See Declaration of Ronald S. Katz ("Katz Decl.") ¶ 2; Declaration of Jennifer M. Keough ("Keough Decl.") ¶ 3. The Claim Form stated that the recipient must return a completed Claim Form to the Claims Administrator on or before February 9, 2010, to share in the settlement amount. Katz Decl. ¶ 2; Keough Decl. ¶ 3. The Claims Administrator received 1,571 Claim Forms that were postmarked on or before the February 9, 2010 deadline, and distributed funds to each of the Class Members who submitted a Claim Form by that deadline. Keough Decl. ¶ 4. Nine Class Members timely returned Claim Forms but such forms were deficient in some manner. Id. Four hundred and eighty eight Class Members did not submit a completed Claim Form by the deadline. Id. Of those 488 Class Members who did not return a completed Claim Form, 261 Class Members had Claim Forms that were returned as "undeliverable". Id. In light of the large number of "undeliverable" Claim Forms, Class Counsel instructed the Claims Administrator to conduct "advanced address searches" for those 261 Class Members in an effort to identify updated addresses. Keough Decl. ¶ 5. This process entailed having the
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Claims Administrator try to locate updated addresses by submitting the names, addresses, phone numbers and, if available, Social Security numbers to Choicepoint, a Lexis-based database that aggregates publicly available records, such as utility and financial records. Id. The Claims Administrator also used available address information to look up Class Member phone numbers using a reverse directory look-up on the internet and to subsequently make attempts to contact these individuals by phone in order to get an updated address. Id. Despite the fact that the deadline for submitting a completed Claim Form had passed, Class Counsel then authorized the Claims Administrator to send a second notice to each of those Class Members who did not timely submit a Claim Form and for whom Class Counsel had a known address. Katz Decl. ¶ 3; Keough Decl. ¶ 5. Class Counsel notified the Court of their intentions on March 22, 2010. See Class Counsels' Notice Regarding Distributions from the Settlement Fund, Docket No. 681. The Claims Administrator mailed each Class Member for whom it had a known address a second Claim Form in or around March 2010. Keough Decl. ¶ 6. This Claim Form extended the deadline to June 1, 2010. Id. By the time the June 1, 2010 deadline had passed, the Claims

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Administrator had received a total of 1,792 completed Claim Forms and had distributed funds to each of those 1,792 Class Members. Id. The Class Administrator also received seven

"incomplete" claim forms that were postmarked on or before the June 1, 2010.1 Id. Two Class Members ­ Lester Hayes and Eric Davis ­ submitted Claim Forms after the June 1, 2010 deadline and thus have yet to be paid. Id. Unfortunately, despite the diligent efforts of Class Counsel and the Claims Administrator, 202 of the second Claim Forms that were sent in or around March 2010 were returned as "undeliverable" a second time. Keough Decl. ¶ 7. Therefore, following the Court's July

21,2010 Order, the Claims Administrator, with the assistance and under the supervision of Class Counsel, took the additional step of using social security information provided confidentially by
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Class Counsel is still working with the Claims Administrator to cure these deficiencies and fully intends to include these seven Class Members in the final distribution of payments.
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Defendants to run additional advanced address searches in an attempt to find updated address information for those 202 Class Members whose Claim Forms were previously returned as "undeliverable". Id. As a result of these collective efforts, and based on information provided by Defendants and calls received by retired players, Class Counsel and the Claims Administrator obtained updated contact information for 76 additional Class Members. Id. This information was conveyed to the Court in a filing made on August 12, 2010. See Response re Order Class Counsels' Response to July 21, 2010 Order, Docket No. 709. On Friday, August 13, 2010, this Court instructed Class Counsel to send out a third Claim Form to each of those 76 additional Class Members for whom Class Counsel and the Claims Administrator was able to obtain updated addresses, and to give those players four weeks to respond. See Order Authorizing Third Round of Mailings, Docket No. 714. Attached as Exhibit A to the Keough Declaration is a list of these 76 players. II. STATUS UPDATE SINCE THE COURT'S AUGUST 13, 2010 ORDER Following the Court's August 13, 2010 Order, the third Claim Forms were individually populated by the Claims Administrator and then mailed on August 23, 2010. Katz Decl. ¶ 4; Keough Decl. ¶ 8. The deadline to submit a completed third Claim Form was September 20, 2010. Keough Decl. ¶ 8. Around this time, Class Counsel also obtained updated contact information from three Class Members who called to inquire about the lawsuit. Katz Decl. ¶ 5. These Class Members were Kerry L. Cash, Stephen Wisniewski, and Otis Wonsley. Id. Because Class Counsel never had current addresses for these three Class Members, and thus previous efforts to reach them had been unsuccessful, Class Counsel instructed the Claims Administrator to immediately send them third Claim Forms. Id.2

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On July 27, 2010, former Oakland Raider Jack Tatum passed away. A third claim form was sent to his widow, Denise Tatum, on September 3, 2010, and returned to Class Counsel. Katz Decl. ¶ 6. In addition, a third claim form was returned to Class Counsel by the widow of Don R. Paul. Id. Class Counsel intend to distribute to these individuals the share of the Settlement Fund to which their husbands were entitled.
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As of September 27, 2010, the Claims Administrator's records indicated that 32 of the 76 additional Class Members (or their representatives)3 to whom the Claims Administrator sent a third Claim Form had submitted completed Claim Forms. Keough Decl. ¶ 9. Attached as Exhibit B to the Keough Declaration is a list of those 32 players who submitted completed Claim Forms. In addition, all three of the Class Members from whom Class Counsel got updated addresses after the August 23, 2010 submitted completed Claim Forms. All told, Class Counsel has received completed Claim Forms from 1,837 Class Members, which represents approximately 89% of the Class. Class Counsel also has disbursed

$8,176,320.81 in Settlement Funds to date, with $11,457,182.75 remaining in the Escrow Account. III. SIX CLASS MEMBERS RETURNED CLAIM FORMS AFTER THE DEADLINE Six Class Members contacted the Class Administrator or Class Counsel and indicated that they did not receive the Claim Form that was mailed to them, or that they returned the Claim Form even though the Class Administrator does not have a record of it. Katz Decl. ¶ 7. These six Class Members are: Georgia Buchanan, Darrell Colbert, Ray Ethridge, Nick Lowery, Ray Perkins and Doug Williams. Id. Unlike the three Class Members discussed above, the situations for each of these six Class Members is unique. The individual situation for each of these six Class Members is summarized on Exhibit 1 to the Katz Declaration. Class Counsel sent each of them a letter informing them that they were not entitled to any settlement funds under the strict terms of the claims process because of the failure to return a completed Claim Form by the deadline. Katz Decl. ¶ 8. Nonetheless, Class Counsel requested additional information so that Class Counsel could seek guidance from the Court with respect to their specific situations. Id. In order to assist the Court, Class Counsel asked these Class Members to submit a completed third Claim Form,

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Charles M. Patrick's representative is Betty Patrck; Ed Pine is confirmed as trustee of the estate of Jack Pine; Judith Ballman is the surviving spouse of Gary Ballman; and Marion Klein is the surviving spouse of Richard J. Klein. Keough Decl. ¶ 10.
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which was enclosed, along with a letter explaining why they either did not or were unable to timely return a Claim Form within the deadline. Id. Collectively attached as Exhibit 2 to the Katz Declaration are the six letters (with enclosures) that Class Counsel sent. Five letters were sent Certified Mail Return Receipt Requested and Class Counsel received Return Receipts for all five letters.4 The sixth letter was sent via e-mail because of time concerns. Id. As of September 27, 2010, five of these six Class Members ­ including the Class Member to whom Class Counsel sent the letter via e-mail ­ responded with written explanations: Georgia Buchanan, Darrell Colbert, Ray Ethridge, Ray Perkins and Nick Lowery. Katz Decl. ¶ 10. These responses are collectively attached as Exhibit 3 to the Katz Declaration. One other player, Doug Williams, returned a completed Claim Form, but did not submit an explanatory response. Id. In addition to these six members, as previously noted, two players ­ Lester Hayes and Eric Davis ­received but did not timely submit a first or second Claim Form by either of the original two deadlines. After due consideration of all that has occurred with respect to efforts to contact former players and to get settlement funds distributed to all who are eligible, Class Counsel recommends that the Court authorize payment from the Settlement Fund to all that currently have a Claim Form on file with the Claims Administrator, whether or not the Forms were late or deficient (assuming that deficiencies are ultimately corrected). III. RELIEF REQUESTED Class Counsel respectfully request that the Court issue a final order approving payment of the settlement funds to Class Members. As a part of that ruling, Class Counsel requests that the

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Class Counsel also sent a letter and third claim form to a seventh Class Member, Randy White. Mr. White claims that he never received a first or second claim form, and the Class Administrator does not have a record of receiving any from him. Mr. White's letter and claim form was sent Certified Mail Return Receipt Requested and Class Counsel received a Return Receipt for Mr. White. Class Counsel also phoned Mr. White to follow up on their letter. Unfortunately, as of the time of this filing, Mr. White has not responded to Class Counsel's communications. Katz Decl. ¶ 9.
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Court make a ruling authorizing or denying payment from the Settlement Fund to the six Class Members mentioned above and discussed on Exhibit 1 to the Katz Declaration, as well for the two players whose Claim Forms were received after the deadline. Class Counsel further requests that they be authorized to send final payments to each of the Class Members who is entitled to a share of the Settlement Fund in the amount to which each Class member is entitled. Attached as Exhibit 4 to the Katz Declaration is a spreadsheet showing how much each player who has submitted a third claim form is expected to receive. This spreadsheet includes the eight players mentioned in the preceding paragraph.5 The accuracy of the numbers in this spreadsheet have been confirmed by Class Counsels' damages expert, LECG. In addition, Class Counsel request that they be authorized to pay the Claims Administrator all outstanding fees through completion of the project, as well as their damages expert, LECG, for confirming the accuracy of the numbers. Attached as Exhibit C to the Keough Declaration is an invoice from the Claims Administrator.6 Attached as Exhibit 6 to the Katz Declaration is the invoice from LECG. Class Counsel further request that they be allowed to reimburse McKool Smith, P.C. in the amount of $7,139.64 for funds that McKool inadvertently paid to the Claims Administrator that should have come out of the Settlement Fund. IV. CONCLUSION Class Counsel respectfully request that the Court provide the relief requested above, approve final payment, and order the settlement process closed. Class Counsel believe that it is time to bring the settlement process to an end and to close administration of the settlement. Substantial efforts have been made to locate all eligible Class Members and the Court has been Should the Court deny payment to any of the eight Class Members, Class Counsel will amend the spreadsheet to reflect the Court's ruling and submit it to the Court for final approval. For purposes of information as to the effect of the Court's ruling, Exhibit 5 to the Katz Declaration is spreadsheet showing how much each player who has submitted a third claim form would be expected to receive if the eight Class Members discussed above were excluded. As before, the accuracy of the numbers in this spreadsheet have been confirmed by LECG. 6 Please note that this invoice does not include past due fees to the Claims Administrator in the amount of $14,185.52.
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diligent in protecting the rights of the absent Class Members. Although it is entirely possible that one or more Class Members could surface following the final payments requested by this Motion, Class Counsel does not believe that it is in the best interest of the Class Members as a whole to retain any remaining funds or to continue the process of settlement administration with ongoing costs. Finality is important and any retained funds would likely not be able to be distributed to Class Members if no further missing Class Members were to surface because administrative costs would exceed the amount to be distributed. Respectfully submitted, Dated: October 5, 2010 MANATT, PHELPS & PHILLIPS, LLP By:_/s/Ronald S. Katz____________________ Ronald S. Katz (SBN 085713) Ryan S. Hilbert (SBN 210549) Noel S. Cohen (SBN 219645) 1001 Page Mill Road, Building 2 Palo Alto, CA 94304-1006 Telephone: [phone] Facsimile: [phone] MCKOOL SMITH, P.C. Lewis T. LeClair (SBN 077136) Jill Adler Naylor (SBN 150783) 300 Crescent Court Dallas, TX 75201 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs
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