Keller v. Electronic Arts Inc. et al

Filing 1092

ORDER by Judge Claudia Wilken DENYING (1029 in case 4:09-cv-01967-CW) MOTION TO SEVER TRIAL ISSUES OR CONTINUE TRIAL DATE AND SETTING DATES. (ndr, COURT STAFF) (Filed on 5/23/2014)

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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 7 No. C 09-1967 CW SAMUEL KELLER, et al., 8 9 United States District Court For the Northern District of California 10 11 ORDER DENYING MOTION TO SEVER TRIAL ISSUES OR CONTINUE TRIAL DATE AND SETTING DATES (Docket No. 1029) Plaintiffs, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION; COLLEGIATE LICENSING COMPANY; and ELECTRONIC ARTS INC., 12 Defendants. 13 ________________________________/ 14 EDWARD O’BANNON, et al., No. C 09-3329 CW 15 16 17 18 19 20 21 22 Plaintiffs, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION; COLLEGIATE LICENSING COMPANY; and ELECTRONIC ARTS INC., Defendants. ________________________________/ On April 25, 2014, Defendant National Collegiate Athletic 23 Association (NCAA) moved to continue the trial of Antitrust 24 Plaintiffs’ claims against it or, in the alternative, to sever 25 certain claims to be tried later. 26 and Defendants Electronic Arts Inc. (EA) and Collegiate Licensing 27 Company (CLC) filed briefs in support of the motion. 28 Plaintiffs oppose the motion. Right-of-Publicity Plaintiffs Antitrust After considering all of the 1 parties’ submissions and the arguments raised at the May 15, 2014 2 status conference, the Court denies the motion. 3 4 BACKGROUND As explained in prior orders, these consolidated cases 5 involve two groups of Plaintiffs. 6 Right–of–Publicity Plaintiffs, alleges that the NCAA, EA, and CLC 7 misappropriated their names, images, and likenesses for use in 8 NCAA-branded videogames. 9 contract claims against all Defendants under Indiana and The first group, known as the They have asserted various tort and United States District Court For the Northern District of California 10 California state law. 11 pending their interlocutory appeal and the Ninth Circuit’s 12 issuance of a mandate, which has been stayed pending EA’s petition 13 for a writ of certiorari. 14 apparently in response to requests by the parties, has continued 15 the deadline for Right-of-Publicity Plaintiffs to file their 16 opposition to this petition. 17 Their claims against EA have been stayed Docket No. 853. The Supreme Court, The second group of Plaintiffs, known as the Antitrust 18 Plaintiffs, alleges that the NCAA conspired with EA and CLC to 19 restrain competition in two distinct but related markets: (1) the 20 “college education” market, in which Division I colleges and 21 universities compete to recruit the best student-athletes to play 22 men’s football or basketball; and (2) the “group licensing” 23 market, in which broadcasters and videogame developers compete for 24 group licenses to use the names, images, and likenesses of 25 student-athletes on Division I football and basketball teams in 26 live game broadcasts, archival footage, and videogames. 27 Plaintiffs have asserted claims against all Defendants under the 28 2 Antitrust 1 Sherman Antitrust Act, 15 U.S.C. §§ 1 et seq. 2 currently set for trial on June 9, 2014. 3 These claims are In September 2013, both groups of Plaintiffs notified the 4 Court that they had reached a settlement in principle with EA and 5 CLC. 6 all of their pending claims against EA and CLC, the Court stayed 7 all of these claims. 8 finalized their settlement agreement with EA and CLC and are 9 planning to submit, on May 23, 2014 or not later than May 30, United States District Court For the Northern District of California 10 Because they represented that this settlement would resolve Plaintiffs represent that they recently 2014, their motion for preliminary approval. 11 As a result of this Court’s stay of the claims against EA and 12 CLC and the Ninth Circuit’s stay of its mandate, the only claims 13 that currently remain active in these cases are those asserted 14 against the NCAA. 15 DISCUSSION 16 The Court considers the NCAA’s request to continue the trial 17 on Antitrust Plaintiffs’ claims before turning to its request for 18 severance. 19 I. 20 Continuance The NCAA, EA, CLC, and Right-of-Publicity Plaintiffs contend 21 that the trial on Antitrust Plaintiffs’ claims against the NCAA 22 should be continued for various reasons. 23 First, the NCAA argues that the Court cannot try Antitrust 24 Plaintiffs’ claims before Right-of-Publicity Plaintiffs’ claims 25 because the Seventh Amendment requires that claims for monetary 26 damages be tried before claims for injunctive relief. 27 argument presumes that Antitrust Plaintiffs’ claims overlap 28 substantively with Right-of-Publicity Plaintiffs’ claims; however, 3 This 1 the NCAA has not demonstrated that these claims do, in fact, raise 2 overlapping issues.1 3 Plaintiffs’ claims and Right-of-Publicity Plaintiffs’ claims did 4 require the adjudication of some common issues, the Seventh 5 Amendment would not require that they be tried together. 6 explained at the status conference, Antitrust Plaintiffs and 7 Right-of-Publicity Plaintiffs originally filed separate complaints 8 in separate actions and, had the Court not consolidated these 9 cases, they would have proceeded to separate trials on their More importantly, even if Antitrust As United States District Court For the Northern District of California 10 respective claims against the NCAA without running afoul of the 11 Seventh Amendment. 12 for a time does not create a Seventh Amendment barrier to trying 13 them separately. 14 separate schedules for years due to EA’s interlocutory appeal and 15 the concomitant stay. 16 consider de-consolidating the cases if EA’s appeal remained 17 pending when trial was set to begin. 18 17, 2010 Order, at 12. 19 “consolidation is permitted as a matter of convenience and economy 20 in administration, but does not merge the suits into a single The fact that these cases were consolidated Indeed, the two cases have been proceeding along The Court specifically noted that it would See Docket No. 253, December The Supreme Court has long recognized that 21 22 23 24 25 26 27 28 1 Most of the issues that the NCAA has flagged as potentially overlapping are, in reality, only directly relevant to Right-ofPublicity Plaintiffs’ claims -- not Antitrust Plaintiffs’ claims. For instance, the question of whether any videogames actually use studentathletes’ names, images, and likenesses is not dispositive of Antitrust Plaintiffs’ claims because it is not determinative of whether or not a market for group licenses to use student-athletes’ names, images, and likenesses exists. Nor is the question of whether the videogames meet the transformative use test. As previously explained, videogame developers may have sought to acquire group licenses to use studentathletes’ names, images, and likenesses as a precautionary measure, even if they believed that their use of the names, images, and likenesses would ultimately be lawful. 4 1 cause, or change the rights of the parties, or make those who are 2 parties in one suit parties in another.” 3 Co., 289 U.S. 479, 496-97 (1933).2 4 and will -- de-consolidate these cases for trial. 5 issues are decided at the bench trial that are important to the 6 subsequent jury trial, then those issues may be re-tried during 7 the jury trial unless res judicata or collateral estoppel applies. 8 Thus, the NCAA’s Seventh Amendment right to a jury trial on Right- 9 of-Publicity Plaintiffs’ damages claims will not be infringed by United States District Court For the Northern District of California 10 11 Johnson v. Manhattan R. The Court has discretion to -If factual trying Antitrust Plaintiffs’ equitable claims first. Second, the NCAA suggests -- for the first time in its post- 12 hearing brief -- that the Court should perhaps send out class 13 notice to members of the certified Rule 23(b)(2) class. 14 Rule 23(c) makes clear that district courts have broad discretion 15 to decide whether or not to send notice to classes certified under 16 Rule 23(b)(2). 17 certified under Rule 23(b)(1) or (b)(2), the court may direct 18 appropriate notice to the class.” (emphasis added)); see also Wal- 19 Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2558 (2011) (“The 20 procedural protections attending the (b)(3) class -- predominance, However, See Fed. R. Civ. P. 23(c)(2) (“For any class 21 22 23 24 25 26 27 28 2 The one case that the NCAA cites for support, United States v. Nordbrock, 941 F.2d 947 (9th Cir. 1991), is inapposite for two reasons. First, Nordbrock involved the trial of an issue that was clearly dispositive in both of the cases consolidated for trial. As noted above, the NCAA has not identified any issues raised by both Antitrust Plaintiffs’ claims and Right-of-Publicity Plaintiffs’ claims that are clearly dispositive in both cases. Second, the district court in Nordbrock consolidated two cases involving the exact same parties and denied one of those parties a right to a jury trial on his claims for monetary relief. Here, in contrast, the consolidated cases involve claims asserted by separate parties -- Antitrust Plaintiffs and Rightof-Publicity Plaintiffs -- and the NCAA will still receive a jury trial on any claims for monetary relief. 5 1 superiority, mandatory notice, and the right to opt out -- are 2 missing from (b)(2) not because the Rule considers them 3 unnecessary, but because it considers them unnecessary to a (b)(2) 4 class.” (emphasis in original)). 5 delay the trial in order to send out class notice. 6 notes that, during the nineteen months since the June 9, 2014 7 trial date was set, none of the parties had proposed that class 8 notice be issued. 9 Accordingly, there is no need to The Court While Right-of-Publicity Plaintiffs, EA, and CLC initially United States District Court For the Northern District of California 10 joined in the NCAA’s request to continue trial, they have not 11 provided any independent, persuasive reasons why the trial should 12 be continued. 13 II. 14 A continuance is therefore not justified. Severance In the alternative, the NCAA moves to sever Antitrust 15 Plaintiffs’ claims related to videogames from their claims related 16 to live game broadcasts and archival footage. 17 Antitrust Plaintiffs’ videogame-related claims raise many of the 18 same legal and factual questions as Right-of-Publicity Plaintiffs’ 19 claims and, as such, should be tried in a single trial with those 20 claims at a later date. 21 videogame-related claims in this way -- so that only the live 22 broadcast and archival footage claims proceed to trial in June 23 2014 -- would avoid duplicative litigation and conserve judicial 24 resources.3 It contends that According to the NCAA, severing the 25 26 27 28 3 The NCAA also initially argued that the lack of a final settlement between Antitrust Plaintiffs, EA, and CLC left open the possibility that the Court would eventually have to hold a separate trial on Antitrust Plaintiffs’ claims against EA and CLC, all of which relate to videogames. However, this concern has been mitigated by the 6 1 This argument is not persuasive. Even if Antitrust 2 Plaintiffs’ videogame-related claims overlap with Right-of- 3 Publicity Plaintiffs’ claims -- and, as noted above, it is not 4 clear that they do -- the NCAA’s severance proposal would not 5 avoid duplicative litigation or conserve judicial resources. 6 Antitrust Plaintiffs’ videogame-related claims overlap more 7 significantly with their live broadcast and archival footage 8 claims so trying them separately, as the NCAA proposes, would 9 inevitably lead to greater duplicative litigation and wasted United States District Court For the Northern District of California 10 judicial resources. 11 one set of potentially overlapping issues with a greater one. 12 Accordingly, severance is not justified here. 13 The NCAA’s severance proposal merely replaces CONCLUSION 14 For the reasons set forth above, the NCAA’s motion to sever 15 or continue trial (Docket No. 1029) is DENIED. 16 Plaintiffs’ motion for leave to file a reply to the NCAA’s 17 supplemental brief (Docket No. 1089) and the NCAA’s motion for 18 leave to file a sur-reply (Docket No. 1090) are GRANTED. 19 Court orders that these cases be de-consolidated for trial. 20 joint consolidated complaint filed by Antitrust Plaintiffs and 21 Right-of-Publicity Plaintiffs is divided into separate sections 22 which clearly delineate which factual allegations and causes of 23 action each group of Plaintiffs has asserted in its respective 24 case. 25 of the complaint relevant to their claims without altering Right- 26 of-Publicity Plaintiffs’ claims or allegations. Antitrust The The Antitrust Plaintiffs have previously amended the sections See Docket No. 27 28 fact that these parties have now finalized their settlement agreement and plan to move for preliminary settlement approval shortly. 7 1 832. 2 337-557, 595-630, and the sections of the complaint entitled 3 “Antitrust Prayer for Relief” and “Antitrust Jury Demand” shall be 4 deemed the complaint in the Antitrust Plaintiffs’ action. 5 Paragraphs 1-6, 18-21, 25-28, 237-239, 248-336, 558-594, and the 6 sections of the complaint entitled “Right of Publicity Prayer for 7 Relief” and “Right of Publicity Jury Demand” shall be deemed the 8 complaint in the Right-of-Publicity Plaintiffs’ action. 9 future filings related to Antitrust Plaintiffs’ claims shall be Accordingly, paragraphs 1-4, 7-17, 22-24, 29-236, 240-47, All United States District Court For the Northern District of California 10 filed in the docket for case no. 09-3329, which shall be referred 11 to as O’Bannon v. NCAA.4 12 Publicity Plaintiffs’ claims shall be filed in the docket for case 13 no. 09-1967, which shall be referred to as Keller v. NCAA. 14 prior filings in the docket for case no. 09-1967, which has been 15 referred to as In re NCAA Student-Athlete Name & Likeness 16 Litigation, shall be deemed to be part of the record in both 17 cases. 18 All future filings related to Right-of- All A bench trial of no more than fifteen days on all of 19 Antitrust Plaintiffs’ claims against the NCAA shall be held 20 beginning at 8:30 a.m. on June 9, 2014. 21 pretrial schedule proposed by Antitrust Plaintiffs and the NCAA, 22 any oppositions to motions in limine are due today. 23 for the parties to exchange objections to deposition counter- 24 designations and rebuttal designations shall be continued from May Pursuant to the amended The deadline 25 26 27 28 4 The following actions shall remain consolidated with O’Bannon: Jacobson v. NCAA, case no. 09-5372 ; Rhodes v. NCAA, case no. 09-5378; Wimprine v. NCAA, case no. 09-5134; Russell v. NCAA, case no. 11-4948; and Robertson v. NCAA, case no. 11-0388. Bishop v. EA, case no. 094128, shall remain consolidated with Keller. 8 1 26, 2014 to May 28, 2014. 2 brief, not to exceed twenty-five pages, by June 3, 3014. 3 pretrial conference remains set for May 28, 2014 at 2:00 p.m. 4 The parties shall each submit a trial The Right-of-Publicity Plaintiffs and Antitrust Plaintiffs shall 5 file their joint motion for preliminary settlement approval as 6 soon as possible. 7 then they shall submit a status report at 5:00 p.m. on that date 8 and every court day thereafter. 9 will be held, if necessary, at 2:00 p.m. on July 3, 2014. If they fail to file to do so by May 30, 2014, A preliminary approval hearing The United States District Court For the Northern District of California 10 Court anticipates that class notice will be issued on September 3, 11 2014, after it has rendered a verdict on Antitrust Plaintiffs’ 12 claims against the NCAA. 13 for early October 2014 and the final approval hearing for early 14 December 2014. 15 Publicity Plaintiffs’ claims against the NCAA as quickly as 16 possible so that, if a settlement is achieved, class notice of it 17 can be included in the notice of the settlement with EA and CLC. 18 If the parties reach a settlement as to the Right-of-Publicity 19 Plaintiffs’ claims against the NCAA, they shall notify the Court 20 promptly. The opt-out deadline could then be set The parties shall attempt to settle Right-of- 21 Right-of-Publicity Plaintiffs shall file their motion for 22 class certification on all of their claims against the NCAA on 23 June 26, 2014. 24 2014. 25 portions of the NCAA’s opposition or separately file a joint 26 brief, not to exceed eight pages, opposing Right-of-Publicity 27 Plaintiffs’ motion; if EA and CLC file a separate brief, they 28 shall focus only on Right-of-Publicity Plaintiffs’ civil The NCAA shall file its opposition on July 10, On July 14, 2014, EA and CLC may join in the relevant 9 1 conspiracy claim, which is the only claim that Right-of-Publicity 2 Plaintiffs have asserted against the NCAA that they have also 3 asserted against EA and CLC. 4 be given an opportunity to oppose class certification later if the 5 settlement is not consummated. 6 shall file their reply on July 17, 2014. 7 hearing will be held at 2:00 p.m. on July 31, 2014. 8 certified, it may be desirable to include notice of it in the 9 September 3, 2014 class notice regarding the settlement with EA United States District Court For the Northern District of California 10 In the alternative, EA and CLC will Right-of-Publicity Plaintiffs The class certification If a class is and CLC. 11 The Court adopts the Right-of-Publicity Plaintiffs and NCAA’s 12 joint proposed discovery schedule for the claims involving them. 13 Expert reports shall be exchanged on August 15, 2014; rebuttal 14 expert reports shall be exchanged on September 15, 2014; and fact 15 discovery shall conclude on October 1, 2014. 16 The NCAA’s motion for summary judgment, contained in a single 17 twenty-five page brief along with any Daubert motions, shall be 18 filed on October 16, 2014. 19 file their response, contained in a single twenty-five page brief 20 with any cross-motions, on October 30, 2014. 21 its reply, contained in a single fifteen page brief with its 22 opposition to any cross-motions, on November 14, 2014. 23 Publicity Plaintiffs shall file their reply to any of their cross- 24 motions in a single fifteen page brief on December 3, 2014. 25 summary judgment hearing will be held at 2:00 p.m. on December 18, 26 2014. 27 28 Right-of-Publicity Plaintiffs shall The NCAA shall file Right-of- The The Court will hold a final pre-trial conference at 2:00 p.m. on March 11, 2015. A jury trial of no more than ten days on all 10 1 of Right-of-Publicity Plaintiffs’ claims against the NCAA will 2 begin at 8:30 a.m. on March 23, 2015. 3 IT IS SO ORDERED. 4 5 6 Dated: 5/23/2014 CLAUDIA WILKEN United States District Judge 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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