Evans et al v. Arizona Cardinals Football Club, LLC et al

Filing 168

ORDER GRANTING IN PART 139 MOTION TO DISMISS by Hon. William Alsup. Amended Pleadings due by 2/22/2017. Motions due by 3/15/2017. (whalc2, COURT STAFF) (Filed on 2/3/2017)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 ETOPIA EVANS, et al., 11 For the Northern District of California United States District Court 10 Plaintiffs, 12 13 14 15 No. C 16-01030 WHA v. ORDER GRANTING IN PART MOTION TO DISMISS ARIZONA CARDINALS FOOTBALL CLUB, LLC, et al., Defendants. / 16 17 18 INTRODUCTION Defendants in this putative class action move to dismiss plaintiffs’ amended complaint, 19 which asserts RICO and concealment claims in addition to previously asserted claims for 20 intentional misrepresentation and conspiracy. Defendants’ motion is GRANTED IN PART. STATEMENT 21 22 Defendants are the thirty-two member clubs of the National Football League. Plaintiffs 23 are the estate of a former NFL player and twelve retired players. Between them, the thirteen 24 plaintiffs played for all thirty-two defendant clubs (Dkt. No. 136 at 3–12). The following facts 25 are taken from the amended complaint. 26 Since its inception in the 1920s, the NFL has risen in both popularity and profitability. 27 The clubs’ dedication to keeping professional players on the field even when injured or in pain, 28 dubbed “return to play,” became a driving force behind this success. According to the amended complaint, “return to play” manifested in several ways. First, general managers, coaches, and 1 media attention allegedly pressured players to return to play as soon as possible despite injury 2 or pain. Second, the clubs allegedly pressured players to return to play through non-guaranteed 3 contracts that could be terminated at any time (also known as being “cut”) if players failed to 4 perform. Third, club doctors and trainers allegedly provided injured players with prescription 5 medications in lieu of adequate rest to return them to play as soon as possible (id. at 19). 6 The provision of prescription medications to injured players headlines as the major 7 component of plaintiffs’ case. The amended complaint specifically claims the clubs represented 8 “that their medical professionals prioritize the players’ health,” and that plaintiffs believed “that 9 doctors . . . and other medical personnel prioritize [their] best interests and would not intentionally advise a procedure or prescribe or distribute a medication that would injure their 11 For the Northern District of California United States District Court 10 health” (id. at 21). Contrary to these representations, however, club doctors and trainers 12 frequently gave plaintiffs medications without writing prescriptions, revealing the names of the 13 drugs used, informing plaintiffs of “the long-term health effects of taking controlled substances 14 and prescription medications in the amounts given,” or counseling plaintiffs that “inadequate 15 rest [would] result in permanent harm to joints and muscles” (id. at 20). Nor did they inform 16 plaintiffs of health risks associated with mixing certain medications (also known as 17 “cocktailing”), or with mixing medications with alcohol provided by the clubs (id. at 22). 18 When plaintiffs asked about the side effects of their medications, they were most 19 frequently given responses like “none,” “don’t worry about them,” “not much,” “they are good 20 for you,” or for injections, “maybe some bruising.” Club doctors and trainers also downplayed 21 the seriousness of injuries — e.g., referring to musculoskeletal breaks and tears as “sprains” — 22 to convince plaintiffs to return to play despite said injuries (id. at 21–22). Club trainers also 23 routinely gave plaintiffs medications without any physician present. These practices, which 24 consistently subordinated plaintiffs’ health to the drive to return to play, have allegedly been 25 ongoing since the 1960s. 26 The amended complaint further alleges that, at a higher level, the clubs coordinated with 27 each other in a number of ways. First, members of each club made up the NFL executive 28 committee, which met on at least an annual basis. General managers, trainers, and doctors also 2 1 met at regular functions. Second, the clubs equally shared revenue from their television deals. 2 Third, the clubs jointly mandated certain procedures to control drug storage and distribution, 3 including via the NFL Security Office. The clubs also created the NFL Prescription Drug 4 Advisory Committee to oversee administration of controlled substances and prescription drugs 5 to players (id. at 33–37). 6 The complaint also cites medical sources indicating that musculoskeletal injuries lead to 7 obesity and associated disorders, and that long-term opioid use and non-steroidal anti- 8 inflammatory drugs are associated with a host of adverse health consequences (id. at 49–51). 9 The complaint further details how plaintiffs, who used medications during their NFL careers, 11 For the Northern District of California United States District Court 10 have suffered and continue to suffer from various health problems (id. at 56–70). According to the amended complaint, the length of an average NFL career is about 3.3 12 years. Players thus “need to stay as healthy as possible not only to earn as much as they can 13 while they play but to best position themselves for later careers,” e.g., in coaching and 14 broadcasting (id. at 51, 89). 15 Plaintiffs filed the instant action on May 21, 2015, in the United States District Court for 16 the District of Maryland asserting claims for intentional misrepresentation and conspiracy. The 17 clubs successfully moved to transfer venue here, and then unsuccessfully moved to dismiss the 18 complaint on preemption and statute of limitations grounds (see Dkt. No. 89). A prior order 19 granted plaintiffs leave to file an amended complaint to add RICO and concealment claims, 20 modify the class definition, and change named plaintiffs (see Dkt. No. 122). 21 The clubs now move to dismiss the amended complaint. Their motion both targets the 22 newly added RICO and concealment claims and attacks (again) the previously asserted 23 intentional misrepresentation and conspiracy claims (Dkt. No. 139). Additional allegations in 24 the amended complaint and relevant to this motion are discussed in the following analysis. 25 26 27 ANALYSIS The clubs contend the amended complaint should be dismissed with prejudice because (1) plaintiffs cannot state a RICO claim, (2) plaintiffs’ conspiracy claim fails as a matter of law, 28 3 1 and (3) plaintiffs’ intentional misrepresentation and concealment claims are not pled with the 2 requisite particularity (ibid.). 3 1. 4 RICO CLAIM. To establish a civil RICO claim against a club, plaintiffs must show the club (1) 5 conducted or conspired to conduct (2) an enterprise (3) through a pattern (4) of racketeering 6 activity (known as “predicate acts”) (5) causing injury to plaintiffs’ “business or property.” 18 7 U.S.C. 1962(c)–(d), 1964(c); Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 8 353, 361 (9th Cir. 2005). The limitations period for civil RICO claims is four years. Agency 9 Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987). It begins to run when a plaintiff knows or should know of their underlying injury. Rotella v. Wood, 528 U.S. 549, 11 For the Northern District of California United States District Court 10 553–55 (2000); Pincay v. Andrews, 238 F.3d 1106, 1109 (9th Cir. 2001). 12 The amended complaint here alleges that seven of the thirteen plaintiffs in this action — 13 Charles Evans, Chris Goode, Darryl Ashmore, Jerry Wunsch, Alphonso Carreker, Steve Lofton, 14 and Duriel Harris — suffered injuries to business or property (the other six plaintiffs do not 15 assert a RICO claim) (Dkt. No. 136 at 3–9, 51–52). Plaintiffs’ theory seems to be that, while 16 players “need to stay as healthy as possible not only to earn as much as they can while they play 17 but to best position themselves for later careers,” clubs “have a never-ending supply of players.” 18 Thus, the clubs pressured plaintiffs to keep playing with non-guaranteed contracts and the 19 constant threat of being cut, and “conspired to prevent their players from fully healing from 20 their injuries, which would best allow the players to maximize their long-term output, by 21 illegally supplying them with Medications.” These actions, plaintiffs claim, “unnecessarily 22 shortened” their NFL careers and diminished their post-NFL prospects (id. at 51–52).1 23 Assuming for present purposes that such injuries even qualify as injuries to “business or 24 property” within the meaning of RICO, plaintiffs’ claim is plainly barred by the statute of 25 limitations. For civil RICO claims, “discovery of the injury, not discovery of the other elements 26 27 28 1 Ironically, each of the seven RICO plaintiffs enjoyed longer NFL careers than the 3.3-year average alleged in the amended complaint (see Dkt. No. 136 at 51). Lofton played from 1993 to 1999; Goode played from 1987 to 1993; Evans played from 1993 to 2000; Wunsch played from 1997 to 2004; Carreker played from 1984 to 1991; Ashmore played from 1993 to 2001; and Harris played from 1976 to 1985 (id. at 3–8). 4 1 of a claim, is what starts the clock.” Rotella, 528 U.S. at 555. Thus, the limitations period 2 begins to run when a plaintiff knows or should know of the injury that underlies their cause of 3 action. This “injury discovery” rule is a “disjunctive two-prong test of actual or constructive 4 notice, under which the statute begins running under either prong.” Pincay, 238 F.3d at 1109. 5 Turning, first, to plaintiffs’ allegations that “their playing careers were unnecessarily 6 shortened,” the NFL careers of the seven RICO plaintiffs ended in 1985 (Harris), 1991 7 (Carreker), 1993 (Goode), 1999 (Lofton), 2000 (Evans), 2001 (Ashmore), and 2004 (Wunsch). 8 The last “unnecessarily shortened” NFL career alleged by plaintiffs thus ended over a decade 9 prior to the filing of this action. Plaintiffs’ specific allegations — that the clubs pressured them to play and gave them medications to continue playing, that they thus did not fully heal from 11 For the Northern District of California United States District Court 10 injuries, and that the toll thereof on their health “shortened” their NFL careers — are all of facts 12 plaintiffs knew or should have known as soon as they occurred. The statute of limitations thus 13 prevents them from asserting a RICO claim over a decade later. See Rotella, 528 U.S. at 555; 14 Pincay, 238 F.3d at 1109. 15 Similarly, plaintiffs knew or should have known that both shortened NFL careers and 16 career-ending injuries would diminish their post-NFL prospects. This is particularly true since, 17 based on plaintiffs’ own allegations, the brevity of NFL careers, the importance of post-NFL 18 career trajectories, and even the widespread practice of substance abuse to the detriment of 19 players’ health in the NFL were well-known realities of the profession (see Dkt. No. 136 at 20 51–56). When plaintiffs sustained injuries that prematurely ended their NFL careers, they had, 21 at minimum, constructive knowledge of the alleged injury to their post-NFL prospects because 22 they “had enough information to warrant an investigation which, if reasonably diligent, would 23 have led to discovery of the [injury].” See Pincay, 238 F.3d at 1110 (also citing Volk v. D.A. 24 Davidson & Co., 816 F.2d 1406 (9th Cir. 1987), for the holding that “receiving written 25 disclosure of the possibility of injury was sufficient to put a civil RICO plaintiff on constructive 26 notice of his injury”). 27 28 Plaintiffs cite Ward v. Chanana, No. C 07–06290 JW, 2008 WL 5383582 (N.D. Cal. Dec. 23, 2008) (Judge James Ware), for the proposition that the limitations period on their 5 1 RICO claim could not start running until they knew their injuries were caused by the clubs’ 2 conduct (Dkt. No. 153 at 4). In Ward, the plaintiff worked for a company based on the 3 defendants’ representations that they would sell the company in an initial public offering. The 4 plaintiff suffered a financial loss when the defendants instead sold the company to another 5 business in 1999, but did not learn until 2006 that the defendants never had any intention of 6 taking the company public in the first place. Ward, 2008 WL 5383582, at *1–2. Judge Ware 7 cited the legal standards described in Pincay, including that a plaintiff’s constructive knowledge 8 of their injury suffices to start the limitations period. Id. at *3–4. He declined, however, to 9 dismiss the complaint in Ward as time-barred, reasoning that such dismissal would penalize the plaintiff for failing to “distinguish between financial injury as a result of Defendants’ 11 For the Northern District of California United States District Court 10 wrongdoing, and financial loss arising out of potentially legitimate business decisions,” and 12 that, at the very least, further factual development was required to conclusively determine that 13 the plaintiff’s RICO claim was untimely on grounds of constructive notice. Id. at *4. 14 Ward is unhelpful to plaintiffs’ position for two reasons. First, although plaintiffs allege 15 fraudulent conduct by the clubs within the context of their intentional misrepresentation and 16 concealment claims (discussed below), their RICO claim contains no allegations of any 17 deception comparable to that in Ward. As stated, the clubs’ role in plaintiffs’ theory of injuries 18 to business or property amounted to (1) pressuring plaintiffs to keep playing and (2) giving 19 them medications so they could do so despite unhealed injuries. Both types of conduct would 20 have been readily apparent to plaintiffs — who felt the pressure to play, sustained the injuries, 21 and took the medications — as soon as they occurred (see, e.g., Dkt. No. 136 at 19–21). 22 Plaintiffs do not and cannot plausibly allege that the clubs somehow concealed from them the 23 factual linchpins of their alleged injuries to business or property. Thus, unlike in Ward, no 24 further factual development is required here to conclude that plaintiffs’ RICO claim is untimely. 25 Second, plaintiffs cite Ward for its conclusion that, “As a predicate for dismissing 26 Plaintiff’s RICO claim on the grounds that Plaintiff had constructive notice of his RICO injury, 27 the Court requires that Plaintiff have had the ability to connect his nominal ‘injury’ to an actual 28 violation of the RICO statute” (Dkt. No. 153 at 4). Ward, 2008 WL 5383582, at *4. This 6 1 conclusion, however, seems inconsistent with the Supreme Court’s instruction in Rotella that 2 “discovery of the injury, not discovery of the other elements of a claim, is what starts the clock” 3 for RICO claims. Rotella, 528 U.S. at 555. Comparing RICO claims to medical malpractice 4 claims, the Rotella decision reiterated: 5 6 7 8 9 11 For the Northern District of California United States District Court 10 We are unconvinced that for statute of limitations purposes a plaintiff’s ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask. . . . We see no good reason for accepting a lesser degree of responsibility on the part of a RICO plaintiff. 12 Id. at 555–56 (quoting United States v. Kubrick, 444 U.S. 111, 122 (1979)). Here, plaintiffs 13 knew or should have known “the critical facts that [they had] been hurt and who [had] inflicted 14 the injury” over a decade prior to this action. The limitations period required nothing more to 15 start running. To the extent that Ward held to the contrary, this order declines to follow it. 16 In short, plaintiffs’ suggestion that they could not have known the clubs’ alleged 17 conduct shortened their NFL careers and diminished their post-NFL prospects beggars belief. 18 Besides, if such injuries were not reasonably discoverable when plaintiffs’ NFL careers ended, 19 then there is no reason why they would have become discoverable only in the four years 20 preceding this action. At best, plaintiffs’ position boils down to arguing that the limitations 21 period could not start running until they not only discovered that they had suffered injuries to 22 business or property due to the clubs’ alleged conduct, but also stumbled onto a legal theory 23 fitting those facts (see Dkt. No. 153 at 7). As such, plaintiffs’ argument is rejected as contrary 24 to controlling law. See Rotella, 528 U.S. at 555–57. 25 Plaintiffs contend that, although the last “unnecessarily shortened” NFL career in their 26 ranks ended over a decade prior to this action, subsequent injuries to their business or property 27 accrued more recently. They point to the prior order denying the clubs’ first motion to dismiss 28 as proof positive that their post-NFL injuries accrued within four years prior to this action. In 7 1 brief, that order declined to bar plaintiffs’ intentional misrepresentation and conspiracy claims 2 as untimely because at least some of the alleged underlying injuries were “latent and slow in 3 developing” and “discovered as recently as 2014” (Dkt. No. 89 at 3, 7). Specifically, the order 4 referred to plaintiffs’ allegations that, in 2014, one plaintiff was diagnosed with renal cancer 5 and another underwent surgery to treat back pain (see Dkt. No. 1 at 60, 69). 6 Personal injuries, however, are not injuries to “business or property” compensable under 7 RICO. Oscar v. Univ. Students Co-op. Ass’n, 965 F.2d 783, 785 (9th Cir. 1992) (en banc), 8 abrogated on other grounds by Diaz v. Gates, 420 F.3d 897 (9th Cir. 2005). Thus, the alleged 9 recently discovered health problems preserved the timeliness of plaintiffs’ previously asserted state law claims but cannot similarly salvage plaintiffs’ untimely RICO claim. Even if plaintiffs 11 For the Northern District of California United States District Court 10 suggest they recently lost employment opportunities or earning capacity wholly as a result of 12 recently discovered health problems, such losses, while economic, nonetheless derive from 13 fundamentally personal injuries and thus cannot give rise to a RICO claim. Oscar, 965 F.2d at 14 787–88; Berg v. First State Ins. Co., 915 F.2d 460, 464 (9th Cir. 1990). 15 Plaintiffs also argue that the limitations period for their RICO claim should be tolled 16 because the clubs fraudulently concealed information that plaintiffs needed in order to discover, 17 through reasonable diligence, “that their careers ended prematurely as a result of Defendants’ 18 tortious conduct” (Dkt. No. 153 at 6). Specifically, plaintiffs contend their “lack of knowledge 19 of their claims is primarily, if not solely, traceable to the efforts by Defendants to conceal the 20 risks of Medications provided,” as well as “the names of the Medications” and “instructions as 21 to their use” (id. at 6–7). But such efforts would not have obscured the specific facts underlying 22 plaintiffs’ RICO theory that the clubs’ conduct shortened their NFL careers and diminished 23 their post-NFL prospects. The amended complaint does not explain how, for example, 24 concealment of a medication’s side effects could possibly prevent a player from knowing that 25 their club was pressuring them to play and giving them medications to do so.2 26 27 28 2 The Pincay decision also concluded that plaintiffs who “had constructive notice of their injuries” so as to trigger the statute of limitations could not claim that fraudulent concealment tolled the limitations period because, “in order to prevail on such a claim, plaintiffs ‘must demonstrate that they had neither actual nor constructive notice of the facts constituting their claims for relief.” Pincay, 238 F.3d at 1110 (emphasis in 8 1 Moreover, to toll the limitations period on the basis of fraudulent concealment, plaintiffs 2 must establish “affirmative conduct upon the part of the [clubs] which would, under the 3 circumstances of the case, lead a reasonable person to believe that he did not have a claim for 4 relief.” Pincay, 238 F.3d at 1110 (quoting Volk, 816 F.2d at 1415). Additionally, plaintiffs 5 “must plead with particularity the facts giving rise to the fraudulent concealment claim and 6 must establish that they used due diligence in trying to uncover the facts.” Volk, 816 F.2d at 7 1415–16. The amended complaint satisfies none of these requirements as to plaintiffs’ RICO 8 claim. 9 Finally, plaintiffs argue that damages stemming from alleged injuries to their business or property were too speculative for said injuries to accrue until the four years preceding this 11 For the Northern District of California United States District Court 10 action (Dkt. No. 153 at 8–9). Thus, they contend, the statute of limitations should not bar their 12 RICO claim. Plaintiffs cite Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 339 13 (1971), wherein the Supreme Court concluded: 14 15 16 17 In antitrust and treble-damage actions, refusal to award future profits as too speculative is equivalent to holding that no cause of action has yet accrued for any but those damages already suffered. In these instances, the cause of action for future damages, if they ever occur, will accrue only on the date they are suffered; thereafter the plaintiff may sue to recover them at any time within four years from the date they were inflicted. 18 The amended complaint, however, does not allege that any damages from plaintiffs’ diminished 19 post-NFL prospects materialized only in the four years preceding this action. There is thus no 20 basis for concluding that damages too speculative to support a RICO claim when plaintiffs’ 21 NFL careers ended are no longer so now. 22 23 24 25 26 27 28 original). So too here. This order detects, however, difficulty in reconciling the foregoing conclusion in Pincay with the “injury discovery” rule and the recognition that, “Although fraudulent concealment may toll the statute of limitations . . . that does not settle the question of when the statute of limitations began to run. The two questions are analytically distinct.” Id. at 1109 (emphasis in original). Under Pincay, it is hard to imagine how any plaintiff with actual or constructive notice of their injuries, such that the limitations period began to run on their claims, could successfully urge tolling on the basis of fraudulent concealment. Perhaps a more sensible coordination of the “injury discovery” rule and equitable tolling is that the latter “may be one answer” where a plaintiff discovers their injury and triggers the statute of limitations, but cannot bring their claim within the limitations period because the RICO pattern at issue involves fraud and “remains obscure in the face of [the] plaintiff’s diligence in seeking to identify it.” Rotella, 528 U.S. at 560–61. But either way, the amended complaint here fails to warrant tolling on the basis of fraudulent concealment, as this order explains next. 9 1 In short, the amended complaint shows plaintiffs’ RICO claim is barred by the statute of 2 limitations. This order therefore does not reach additional arguments regarding the sufficiency 3 of the pleading as to this claim, except that the amended complaint’s failure to plead allegations 4 showing a conspiracy is addressed below within the context of plaintiffs’ conspiracy claim. 5 2. STATE LAW CLAIMS. concealment, and conspiracy. The clubs contend plaintiffs’ intentional misrepresentation and 8 concealment claims are not pled with the requisite particularity, and move to dismiss plaintiffs’ 9 conspiracy claim for (1) lack of a predicate claim and (2) failure to plead a conspiracy (Dkt. No. 10 139 at 14–21). Plaintiffs respond that the clubs should be barred from seeking dismissal of the 11 For the Northern District of California The amended complaint also asserts state law claims for intentional misrepresentation, 7 United States District Court 6 intentional misrepresentation and conspiracy claims because the previous motion to dismiss 12 already unsuccessfully challenged those same claims, albeit only on preemption and statute of 13 limitations grounds (Dkt. No. 153 at 22–24). 14 Federal Rule of Civil Procedure 12(g)(2) “technically prohibits successive motions to 15 dismiss that raise arguments that could have been made in a prior motion,” but “courts faced 16 with a successive motion often exercise their discretion to consider the new arguments in the 17 interests of judicial economy.” Amaretto Ranch Breedables, LLC v. Ozimals, Inc., No. C 18 10–05696 CRB, 2011 WL 2690437, at *2 n.1 (N.D. Cal. July 8, 2011) (Judge Charles Breyer); 19 see also In re Apple Iphone Antitrust Litig., No. 14-15000, 2017 WL 117153, at *4–5 (9th Cir. 20 2017). Here, there is no indication that the clubs’ new arguments against plaintiffs’ state law 21 claims were interposed for delay, and resolving such arguments now will expedite disposition 22 of the case. This order therefore reaches the merits of the arguments as to plaintiffs’ state law 23 claims. See In re Apple, 2017 WL 117153, at *4–5. 24 The parties debate whether Maryland or California law applies to plaintiffs’ state law 25 claims, but agree that the substantive elements of the claims are essentially the same either way. 26 They even agree that the specific elements in dispute for purposes of the instant motion are 27 deceit, reliance, and proximate causation (Dkt. Nos. 139 at 16; 153 at 22, 24–25; 158 at 10). If 28 this case ever reaches the Rule 23 stage, the potential multiplicity of governing law for thirty10 1 two defendant clubs will raise significant questions as to which states’ laws govern claims for 2 each club (for example, should a player in New York or Illinois be relegated to the laws of 3 California or Maryland?). At this stage, however, this case is not a class action and this order 4 does not need to resolve such questions to decide whether the amended complaint adequately 5 pleads the elements in question with the requisite particularity. The parties agree that plaintiffs’ conspiracy claim survives only if a predicate claim 8 survives (Dkt. Nos. 139 at 15, 153 at 28). The parties also agree that the potential predicate 9 claims — intentional misrepresentation and concealment — are both grounded in fraud, so the 10 amended complaint must satisfy the heightened pleading requirements of Rule 9(b) as to those 11 For the Northern District of California 1. 7 United States District Court 6 claims. Rule 9(b) provides, “In alleging fraud or mistake, a party must state with particularity 12 the circumstances constituting fraud or mistake.” Such averments of fraud must be 13 accompanied by “the who, what, when, where, and how” of the alleged misconduct. Kearns v. 14 Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009). This order therefore considers whether 15 the amended complaint sufficiently alleges deceit, reliance, and proximate causation to support 16 its intentional misrepresentation and concealment claims. 17 Intentional Misrepresentation and Concealment. The clubs’ briefs seem to construe plaintiffs’ theory as focusing narrowly on the 18 transactions whereby club personnel provided players with medications. Based on this 19 interpretation, the clubs argue that the amended complaint does not specifically allege how (1) 20 any statements or omissions made by club personnel about the drugs used were false (e.g., Dkt. 21 No. 139 at 17); (2) any disclosures regarding the risks or side effects of the drugs used would 22 have altered plaintiffs’ decision to take such drugs (id. at 18–21); or (3) any concealed side 23 effects of the drugs used caused plaintiffs’ alleged injuries (id. at 21). 24 Two facets of plaintiffs’ theory underlying their intentional misrepresentation and 25 concealment claims, however, merit further discussion. First, plaintiffs’ counsel at oral 26 argument defined the alleged “misrepresentation” as failing to inform players that club trainers 27 violated the Controlled Substances Act by giving them medications. Even assuming counsel is 28 correct as to that legal conclusion, however, his suggestion that plaintiffs suffered all their 11 1 alleged injuries because no one told them their trainers were technically violating the CSA 2 strains credulity. It is also unsupported by the amended complaint, which alleges in support of 3 plaintiffs’ RICO claim that the clubs violated the CSA but does not specifically mention any 4 omission of trainers’ technical violations of the CSA within the context of plaintiffs’ intentional 5 misrepresentation or concealment claims (see Dkt. No. 136 at 89–98). 6 Second, the amended complaint can also be construed as alleging intentional 7 misrepresentation and concealment beyond the medical risks, side effects, and proper usage of 8 medications. Specifically, the amended complaint alleges the clubs represented they cared 9 about and prioritized players’ health and safety but, in various ways, drove players to return to play at the cost of their health or safety. For example, “The Clubs continuously and 11 For the Northern District of California United States District Court 10 systematically misrepresented to [plaintiffs] the dangers of playing while the pain of injuries 12 was masked by the Medications, including the risk of further and permanent damage to affected 13 body parts” (Dkt. No. 136 at 90). Plaintiffs were “not counseled that inadequate rest will result 14 in permanent harm to joints and muscles” (id. at 20). Doctors and trainers downplayed the 15 seriousness of plaintiffs’ injuries to “get [them] to return to play sooner” (id. at 22). And club 16 personnel did not inform players about the drugs used, including potential contraindications or 17 adverse consequences of usage (e.g., id. at 94–95), because the players would otherwise not 18 have used the offered medications the way they did (id. at 91, 96). 19 20 21 In support of this subtler theory of intentional misrepresentation and concealment, the amended complaint pleads the following supporting allegations with particularity: • The NFL Physicians Society, which began in 1966 and includes doctors 22 from all thirty-two clubs among its members, states its mission is “to 23 provide excellence in the medical and surgical care of the athletes in the 24 NFL and to provide direction and support for the athletic trainers in charge 25 of the care of these athletes.” The NFLPS website, cited in the amended 26 complaint, describes annual meetings where club doctors address “key 27 issues common to the membership” like “protecting players’ health and 28 safety” and “sharing best practices.” The “essential goals of the NFLPS” 12 1 are to “continue improving the care of professional football players and to 2 prevent and treat injuries” (id. at 15–16). 3 • The website of the Professional Football Athletic Trainers Society (which 4 began in the mid-1960s as the NFL Athletic Trainers Society), also cited 5 in the amended complaint, states the PFATS “represent[s] the athletic 6 trainers of the [NFL],” and its “purpose is to insure [sic] the highest 7 quality of health care is provided to the [NFL]” (id. at 15–16). 8 • 9 in which players become friendly with their Clubs’ medical and training For the Northern District of California United States District Court 10 11 Within the NFL there is an “atmosphere of trust inherent in locker rooms, staffs” (id. at 90, 95). • Players “reasonably believed the Clubs were taking their best interests into 12 consideration when they provided and administered Medications,” and 13 “would not . . . injure [them] and put them at risk of substantial and 14 continuing future injuries” (id. at 91, 95). 15 • As a result of the clubs’ misrepresentations and omissions, “Plaintiffs . . . 16 ingested vast amounts of Medications during their NFL careers that they 17 otherwise would not have” (id. at 91, 96). 18 The foregoing allegations indicate (1) the thirty-two clubs represented that they care about and 19 prioritize players’ health and safety, and (2) plaintiffs believed such representations. 20 The clubs reply that plaintiffs took medications to return to play simply “because they 21 felt extreme pressure [from] fear of losing their jobs” (Dkt. No. 139 at 19). Thus, the clubs 22 argue, plaintiffs did not rely on any alleged misrepresentation by the clubs in doing so. This 23 reasoning is dubious since, insofar as players were motivated by the desire to keep their jobs, 24 they would presumably avoid playing with injuries masked by drugs if they knew that they 25 risked sustaining career-ending injuries by doing so. And, in any case, a player’s fear of being 26 cut would not categorically rule out a further belief that, when push came to shove, their clubs, 27 doctors and trainers would not “put them at risk of substantial and continuing future injuries” 28 (see, e.g., Dkt. No. 136 at 91). 13 1 The next question, then, is whether any clubs acted contrary to their representations by 2 driving players to return to play at the cost of their health or safety. The amended complaint 3 pleads the following supporting allegations with particularity: 4 • In 1994, while playing for the Detroit Lions, plaintiff Robert Massey hurt playing the game after the club doctor injected him with Toradol, a non- 7 steroidal anti-inflammatory drug. Afterwards, head coach Wayne Fonts 8 saw Massey’s swollen ankle in the training room and said “you know we 9 didn’t pay you that kind of money to miss games.” Before the Lions’ next 10 game against the Minnesota Vikings, a club trainer gave Massey Indocin, 11 For the Northern District of California his right ankle during a game against the Atlanta Falcons. He finished 6 United States District Court 5 another non-steroidal anti-inflammatory drug, and told him the pills would 12 “help his ankle.” The club doctor also gave Massey another Toradol shot 13 and wrapped his ankle. Massey played that game and the rest of the 14 season with a swollen ankle. He now lives in constant pain from, among 15 other things, his ankles (id. at 57–58). 16 • In 1998, while playing for the Oakland Raiders, plaintiff Darryl Ashmore 17 hurt his wrist during practice. With an important game against the Seattle 18 Seahawks approaching, the club doctor, Warren King, told Ashmore “that 19 the injury was only a sprain and that he would be fine with painkillers and 20 anti-inflammatories.” Ashmore played the game. The next morning, Dr. 21 King told him his wrist was broken. Ashmore played the rest of the 22 season with a wrist cast, painkillers, and anti-inflammatory drugs. His 23 wrist is now permanently damaged (id. at 60). 24 • While playing for the Green Bay Packers and the Denver Broncos from 25 1984 to 1991, plaintiff Alphonso Carreker regularly consumed “enormous 26 quantities” of anti-inflammatory drugs, which trainers for “each Club for 27 whom he played” made readily available and “frequently volunteered.” In 28 2013, Carreker underwent heart surgery to drain inflammation from an 14 1 infection in his heart after anti-inflammatory drugs proved “ineffective 2 due to the resistance he had built up to such drugs . . . during his playing 3 career” (id. at 61–62). 4 • In 2003, plaintiff Jerry Wunsch played for the Seahawks. Before a game 5 against the Baltimore Ravens, a coach named Holmgren approached him 6 and asked if he could play. Wunsch replied “I do not think so.” 7 Holmgren asked the club trainer, Sam Ramsden, “what can we do to help 8 Mr. Wunsch play today?” Ramsden summoned club doctors who gave 9 Wunsch Vicodin and Tylenol-Codeine #3 to take on top of the Indocin he was already taking. Around halftime, Wunsch “told anyone who would 11 For the Northern District of California United States District Court 10 listen that he could not play anymore,” and Ramsden gave him more 12 Vicodin so he could continue for the second half of the game. Wunsch 13 now suffers from a host of medical problems, including constant joint and 14 nerve pain (id. at 63). 15 • In 1976, while playing for the Miami Dolphins, plaintiff Duriel Harris 16 sprained ligaments in his ankle during a game against the Buffalo Bills. 17 The following week, before a game against the Vikings, “Harris limped on 18 to the field for pre-game warmups, not expecting to play.” Two coaches, 19 Don Shula and Howard Shellenberger, approached him and said “We need 20 you — you need to play. We’ve talked to the doctors and they will give 21 you a shot and you can play.” Harris “was afraid he would be cut if he 22 objected.” He got a cortisone injection from the club doctor in the training 23 room and played the game. Afterwards, his ankle “ballooned up” and 24 prevented him from running or working out for approximately six months. 25 Now, Harris is in “constant pain from all of his joints,” including from 26 “football injuries in his . . . ankles” (id. at 66–67). 27 28 • In 2000, while playing for the San Diego Chargers, plaintiff Jeffrey Graham played all but “one or two games” of the season with a broken 15 1 transverse process in his back while managing the pain with medications 2 from club doctors and trainers. He “now lives in constant pain,” which he 3 believes “is completely attributable to various injuries suffered during his 4 NFL career” that were “masked” by “painkiller injections” and “numerous 5 drugs” (id. at 67–68). 6 • In 2003, while playing for the Vikings, plaintiff Cedric Killings sprained said he “would be released from the Club” if he was not able to practice 9 that day. Killings “wanted to keep his job” and “took [medications] given 10 by the Club to ensure that he could practice in spite of the pain in his right 11 For the Northern District of California his right ankle during practice. The next morning, head coach Mike Tice 8 United States District Court 7 ankle.” He now “has constant pain in his . . . ankles,” among various 12 other health problems (id. at 69). 13 • In 2014, while playing for the Chargers, plaintiff Reggie Walker sprained 14 his ankle during a game against the Bills. Following that injury, the club 15 doctor gave him Toradol injections for every game until he retired from 16 the NFL. Since retiring, Walker “often experiences pain in his ankles,” 17 among various other health problems (ibid.). 18 The foregoing specific allegations indicate that the Lions, Raiders, Broncos, Packers, Seahawks, 19 Dolphins, Chargers, and Vikings drove certain plaintiffs to return to play at the cost of their 20 health or safety, contrary to the clubs’ representations that they would prioritize the latter. The 21 amended complaint therefore pleads claims of intentional misrepresentation and concealment as 22 to those specific clubs and plaintiffs with particularity. 23 As to the other clubs, however, the amended complaint contains only general or 24 conclusory allegations, or allegations insufficient to plead intentional misrepresentation or 25 concealment under any theory with the particularity required by Rule 9(b). For example, the 26 amended complaint alleges that, “At one point, Mr. Wunsch was shot up with [Hyalgan] in his 27 ankle, instead of being rested, and was told that the [Hyalgan] would act like oil to lubricate his 28 gears because it was bone on bone in his ankle.” The amended complaint does not even attempt 16 1 to identify when or where this happened, or who gave Wunsch Hyalgan instead of resting him 2 (see id. at 62). As another example, the amended complaint alleges that, “While playing in the 3 NFL, Eric King received hundreds of pills from trainers and injections from doctors” to “numb 4 the pain and play.” The amended complaint fails to specify what injuries King sustained, when 5 in King’s NFL career this happened, or which club was responsible (see id. at 64). 6 Plaintiffs’ counsel further demonstrated the amended complaint’s shortcomings during 7 oral argument, when the Court asked him to identify where the amended complaint pleads 8 specific allegations sufficient to state a claim for intentional misrepresentation or concealment 9 against the Chicago Bears. Counsel was unable to point to any allegations supporting either claim specifically as to the Bears, and ultimately fell back on the single allegation that the 11 For the Northern District of California United States District Court 10 Bears’ “[t]rainers provided Mr. Graham with Ambien in St. Louis” (Dkt. No. 136 at 81). Cue 12 the argument, rejected above, that trainers handing out medications violated the CSA and that 13 alleging facts showing this technical violation, without more, adequately pleads claims for 14 intentional misrepresentation and concealment under Rule 9(b). 15 The foregoing examples are non-exhaustive and provided for illustrative purposes only. 16 It would be redundant and unnecessary to discuss the amended complaint’s shortcomings as to 17 every defendant club except for the Lions, Raiders, Broncos, Packers, Seahawks, Dolphins, 18 Chargers, and Vikings. The point is that, as to other defendant clubs, the amended complaint 19 fails to allege facts supporting plaintiffs’ intentional misrepresentation and concealment claims 20 with the particularity required by Rule 9(b). We must remember that a defendant club should 21 only have to defend against claims pled properly against it. That the amended complaint is 22 adequate as to some clubs does not somehow make it adequate as to all clubs. 23 2. 24 Counsel for both sides have punted the question of which state’s law applies to 25 plaintiffs’ conspiracy claim. This order may punt as well, because the amended complaint fails 26 to allege a conspiracy under any applicable law. No factual, non-conclusory allegations in the 27 amended complaint show any agreement or understanding between the clubs to adhere to a 28 return-to-play practice or policy. At best, the amended complaint alleges the NFL has a return- Conspiracy. 17 1 to-play culture driving individuals across the board — including trainers, doctors, and the 2 players themselves — to prioritize game performance over players’ health. Tellingly, “return to 3 play culture” was precisely the phrase used over and again in plaintiffs’ original complaint (see 4 Dkt. No. 1 at 9, 31–36, 40, 83). This phrase transmogrified in the amended complaint into a 5 “return to play practice or policy” (see Dkt. No. 136 at 1, 16–17, 20–21, 35, 74, 79, 99), 6 ostensibly to support plaintiffs’ new RICO claim. Yet even the amended complaint 7 occasionally lapses into its true meaning, describing the problem in the NFL as a permeative 8 “business culture” rather than a practice, policy, or conspiracy (see, e.g., id. at 19–20). no inference of any conspiracy but remain entirely consistent with a standalone team-by-team 11 For the Northern District of California Looking at the amended complaint as a whole, plaintiffs’ extensive allegations warrant 10 United States District Court 9 return-to-play culture consistent with a non-collusive yet burning desire by each team to win 12 and attract audiences by keeping their best players, even when injured, on the field. For 13 example, the amended complaint alleges the return-to-play “practice or policy” arose out of the 14 need to boost game attendance and television ratings by keeping the best players on the field 15 (id. at 1). The clubs’ “business plan” implementing return-to-play evolved from each club’s 16 “financial interest in returning players to the game as soon as possible” because “[e]veryone’s 17 job and salary” depended on it (id. at 16). Return-to-play “became an accepted fact of doing 18 business . . . as profits soared” (id. at 17). To maintain return-to-play, the clubs then engaged in 19 the conduct alleged in the amended complaint until “[t]hat culture . . . so permeated the NFL . . . 20 it is almost unshakeable” (id. at 20). Nothing in this narrative of simple self-interest and 21 competition alleges or even suggests that individual clubs ever had — or needed — any 22 meeting, communication, agreement, or collusion with each other to keep injured players on the 23 field at the cost of their health or safety. 24 Plaintiffs, citing Maryland law, claim they adequately alleged the elements of a 25 conspiracy by pleading that “Defendants Comprise the [NFL],” which constitutes “a 26 confederation of two or more persons by agreement” (Dkt. No. 153 at 29). See Lloyd v. Gen. 27 Motors Corp., 916 A.2d 257, 284 (Md. 2007). This reasoning is flawed because it divorces the 28 element of “agreement or understanding” from the purported underlying conspiracy. To be 18 1 clear, the “conspiracy” plaintiffs need to prove up is not merely that the clubs collectively make 2 up the NFL. Agreeing to form the NFL does not translate to further agreeing to subordinate 3 plaintiffs’ health and safety to returning them to play at all costs. The amended complaint 4 contains no well-pled allegations of any conspiracy between clubs regarding the latter. 5 * * * 6 The clubs urge dismissal of all class allegations in the amended complaint on the basis 7 that it asserts only the RICO claim on behalf of a putative class (see Dkt. No. 136 at 2). Other 8 portions of the amended complaint describing plaintiffs’ state law claims, however, expressly 9 refer to “Class Members” as the victims of the clubs’ alleged misconduct (see id. at 89–99). This order construes this apparent conflict between different parts of the amended complaint — 11 For the Northern District of California United States District Court 10 which seems to be a problem of inartful pleading — in favor of preserving the substantive 12 allegations asserting state law claims on behalf of a putative class. 13 14 CONCLUSION For the foregoing reasons, defendants’ motion to dismiss the amended complaint is 15 GRANTED as to the RICO and conspiracy claims. Leave to amend the RICO claim is denied as 16 futile because plaintiffs have already had ample opportunity to investigate and plead a timely 17 claim under RICO. If, as discovery proceeds in this matter, evidence surfaces indicating the 18 existence of a conspiracy, or indicating that some clubs lied to plaintiffs, then the Court will at 19 least consider allowing plaintiffs to amend their complaint to re-add a conspiracy claim. 20 Otherwise, generous opportunity to shore up the complaint having already been given, further 21 leave to amend is not warranted as to this claim. 22 Defendants’ motion to dismiss the amended complaint is DENIED as to the intentional 23 misrepresentation and concealment claims against the Lions, Raiders, Broncos, Packers, 24 Seahawks, Dolphins, Chargers, and Vikings, but GRANTED as to all other defendant clubs. 25 Leave to amend is granted for plaintiffs to plead their best case as to their intentional 26 misrepresentation and concealment claims, and to clarify which claims are asserted on behalf of 27 a putative class. To be clear, this will be plaintiffs’ last opportunity to amend, so they should 28 plead their best case in all respects — not just in response to issues addressed in this order. 19 1 During oral argument, plaintiffs’ counsel represented that, given the substantial amount of 2 discovery plaintiffs have now taken, they “can amend [the complaint] to any degree of 3 particularity [the Court] want[s] at this point.” This order takes counsel at his word. 4 As with the denial of the clubs’ prior motion to dismiss, the partial denial of the instant 5 motion is without prejudice to later proof that the statute of limitations bars some or all of 6 plaintiffs’ surviving claims. Plaintiffs shall file their second amended complaint by 7 FEBRUARY 22. Defendants shall file any motion to dismiss the second amended complaint by 8 MARCH 15. The deadline for plaintiffs to file their class certification motion, to be heard on a 9 49-day briefing schedule, is continued from February 23 to MAY 18. 11 For the Northern District of California United States District Court 10 IT IS SO ORDERED. 12 13 Dated: February 3, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20

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