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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 09-1967 CW
SAMUEL KELLER, et al.,

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United States District Court
For the Northern District of California

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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.,

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Defendants.

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________________________________/

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EDWARD O’BANNON, et al.,
No. C 09-3329 CW

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Plaintiffs,
v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION; COLLEGIATE
LICENSING COMPANY; and
ELECTRONIC ARTS INC.,
Defendants.
________________________________/
On April 25, 2014, Defendant National Collegiate Athletic

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Association (NCAA) moved to continue the trial of Antitrust

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Plaintiffs’ claims against it or, in the alternative, to sever

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certain claims to be tried later.

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and Defendants Electronic Arts Inc. (EA) and Collegiate Licensing

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Company (CLC) filed briefs in support of the motion.

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Plaintiffs oppose the motion.

Right-of-Publicity Plaintiffs

Antitrust

After considering all of the

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parties’ submissions and the arguments raised at the May 15, 2014

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status conference, the Court denies the motion.

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BACKGROUND
As explained in prior orders, these consolidated cases

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involve two groups of Plaintiffs.

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Right–of–Publicity Plaintiffs, alleges that the NCAA, EA, and CLC

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misappropriated their names, images, and likenesses for use in

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NCAA-branded videogames.

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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

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California state law.

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pending their interlocutory appeal and the Ninth Circuit’s

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issuance of a mandate, which has been stayed pending EA’s petition

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for a writ of certiorari.

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apparently in response to requests by the parties, has continued

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the deadline for Right-of-Publicity Plaintiffs to file their

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opposition to this petition.

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Their claims against EA have been stayed

Docket No. 853.

The Supreme Court,

The second group of Plaintiffs, known as the Antitrust

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Plaintiffs, alleges that the NCAA conspired with EA and CLC to

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restrain competition in two distinct but related markets: (1) the

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“college education” market, in which Division I colleges and

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universities compete to recruit the best student-athletes to play

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men’s football or basketball; and (2) the “group licensing”

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market, in which broadcasters and videogame developers compete for

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group licenses to use the names, images, and likenesses of

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student-athletes on Division I football and basketball teams in

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live game broadcasts, archival footage, and videogames.

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Plaintiffs have asserted claims against all Defendants under the

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Antitrust

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Sherman Antitrust Act, 15 U.S.C. §§ 1 et seq.

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currently set for trial on June 9, 2014.

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These claims are

In September 2013, both groups of Plaintiffs notified the

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Court that they had reached a settlement in principle with EA and

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CLC.

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all of their pending claims against EA and CLC, the Court stayed

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all of these claims.

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finalized their settlement agreement with EA and CLC and are

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planning to submit, on May 23, 2014 or not later than May 30,

United States District Court
For the Northern District of California

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Because they represented that this settlement would resolve

Plaintiffs represent that they recently

2014, their motion for preliminary approval.

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As a result of this Court’s stay of the claims against EA and

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CLC and the Ninth Circuit’s stay of its mandate, the only claims

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that currently remain active in these cases are those asserted

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against the NCAA.

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DISCUSSION

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The Court considers the NCAA’s request to continue the trial

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on Antitrust Plaintiffs’ claims before turning to its request for

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severance.

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I.

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Continuance
The NCAA, EA, CLC, and Right-of-Publicity Plaintiffs contend

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that the trial on Antitrust Plaintiffs’ claims against the NCAA

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should be continued for various reasons.

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First, the NCAA argues that the Court cannot try Antitrust

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Plaintiffs’ claims before Right-of-Publicity Plaintiffs’ claims

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because the Seventh Amendment requires that claims for monetary

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damages be tried before claims for injunctive relief.

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argument presumes that Antitrust Plaintiffs’ claims overlap

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substantively with Right-of-Publicity Plaintiffs’ claims; however,
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This

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the NCAA has not demonstrated that these claims do, in fact, raise

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overlapping issues.1

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Plaintiffs’ claims and Right-of-Publicity Plaintiffs’ claims did

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require the adjudication of some common issues, the Seventh

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Amendment would not require that they be tried together.

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explained at the status conference, Antitrust Plaintiffs and

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Right-of-Publicity Plaintiffs originally filed separate complaints

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in separate actions and, had the Court not consolidated these

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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

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respective claims against the NCAA without running afoul of the

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Seventh Amendment.

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for a time does not create a Seventh Amendment barrier to trying

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them separately.

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separate schedules for years due to EA’s interlocutory appeal and

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the concomitant stay.

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consider de-consolidating the cases if EA’s appeal remained

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pending when trial was set to begin.

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17, 2010 Order, at 12.

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“consolidation is permitted as a matter of convenience and economy

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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

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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.

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cause, or change the rights of the parties, or make those who are

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parties in one suit parties in another.”

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Co., 289 U.S. 479, 496-97 (1933).2

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and will -- de-consolidate these cases for trial.

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issues are decided at the bench trial that are important to the

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subsequent jury trial, then those issues may be re-tried during

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the jury trial unless res judicata or collateral estoppel applies.

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Thus, the NCAA’s Seventh Amendment right to a jury trial on Right-

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of-Publicity Plaintiffs’ damages claims will not be infringed by

United States District Court
For the Northern District of California

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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-

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hearing brief -- that the Court should perhaps send out class

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notice to members of the certified Rule 23(b)(2) class.

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Rule 23(c) makes clear that district courts have broad discretion

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to decide whether or not to send notice to classes certified under

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Rule 23(b)(2).

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certified under Rule 23(b)(1) or (b)(2), the court may direct

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appropriate notice to the class.” (emphasis added)); see also Wal-

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Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2558 (2011) (“The

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procedural protections attending the (b)(3) class -- predominance,

However,

See Fed. R. Civ. P. 23(c)(2) (“For any class

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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.

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superiority, mandatory notice, and the right to opt out -- are

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missing from (b)(2) not because the Rule considers them

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unnecessary, but because it considers them unnecessary to a (b)(2)

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class.” (emphasis in original)).

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delay the trial in order to send out class notice.

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notes that, during the nineteen months since the June 9, 2014

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trial date was set, none of the parties had proposed that class

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notice be issued.

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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

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joined in the NCAA’s request to continue trial, they have not

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provided any independent, persuasive reasons why the trial should

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be continued.

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II.

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A continuance is therefore not justified.

Severance
In the alternative, the NCAA moves to sever Antitrust

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Plaintiffs’ claims related to videogames from their claims related

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to live game broadcasts and archival footage.

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Antitrust Plaintiffs’ videogame-related claims raise many of the

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same legal and factual questions as Right-of-Publicity Plaintiffs’

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claims and, as such, should be tried in a single trial with those

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claims at a later date.

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videogame-related claims in this way -- so that only the live

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broadcast and archival footage claims proceed to trial in June

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2014 -- would avoid duplicative litigation and conserve judicial

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resources.3

It contends that

According to the NCAA, severing the

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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

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This argument is not persuasive.

Even if Antitrust

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Plaintiffs’ videogame-related claims overlap with Right-of-

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Publicity Plaintiffs’ claims -- and, as noted above, it is not

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clear that they do -- the NCAA’s severance proposal would not

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avoid duplicative litigation or conserve judicial resources.

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Antitrust Plaintiffs’ videogame-related claims overlap more

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significantly with their live broadcast and archival footage

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claims so trying them separately, as the NCAA proposes, would

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inevitably lead to greater duplicative litigation and wasted

United States District Court
For the Northern District of California

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judicial resources.

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one set of potentially overlapping issues with a greater one.

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Accordingly, severance is not justified here.

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The NCAA’s severance proposal merely replaces

CONCLUSION

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For the reasons set forth above, the NCAA’s motion to sever

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or continue trial (Docket No. 1029) is DENIED.

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Plaintiffs’ motion for leave to file a reply to the NCAA’s

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supplemental brief (Docket No. 1089) and the NCAA’s motion for

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leave to file a sur-reply (Docket No. 1090) are GRANTED.

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Court orders that these cases be de-consolidated for trial.

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joint consolidated complaint filed by Antitrust Plaintiffs and

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Right-of-Publicity Plaintiffs is divided into separate sections

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which clearly delineate which factual allegations and causes of

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action each group of Plaintiffs has asserted in its respective

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case.

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of the complaint relevant to their claims without altering Right-

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of-Publicity Plaintiffs’ claims or allegations.

Antitrust

The
The

Antitrust Plaintiffs have previously amended the sections

See Docket No.

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fact that these parties have now finalized their settlement agreement
and plan to move for preliminary settlement approval shortly.

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832.

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337-557, 595-630, and the sections of the complaint entitled

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“Antitrust Prayer for Relief” and “Antitrust Jury Demand” shall be

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deemed the complaint in the Antitrust Plaintiffs’ action.

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Paragraphs 1-6, 18-21, 25-28, 237-239, 248-336, 558-594, and the

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sections of the complaint entitled “Right of Publicity Prayer for

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Relief” and “Right of Publicity Jury Demand” shall be deemed the

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complaint in the Right-of-Publicity Plaintiffs’ action.

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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

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filed in the docket for case no. 09-3329, which shall be referred

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to as O’Bannon v. NCAA.4

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Publicity Plaintiffs’ claims shall be filed in the docket for case

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no. 09-1967, which shall be referred to as Keller v. NCAA.

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prior filings in the docket for case no. 09-1967, which has been

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referred to as In re NCAA Student-Athlete Name & Likeness

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Litigation, shall be deemed to be part of the record in both

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cases.

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All future filings related to Right-of-

All

A bench trial of no more than fifteen days on all of

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Antitrust Plaintiffs’ claims against the NCAA shall be held

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beginning at 8:30 a.m. on June 9, 2014.

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pretrial schedule proposed by Antitrust Plaintiffs and the NCAA,

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any oppositions to motions in limine are due today.

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for the parties to exchange objections to deposition counter-

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designations and rebuttal designations shall be continued from May

Pursuant to the amended

The deadline

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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.

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26, 2014 to May 28, 2014.

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brief, not to exceed twenty-five pages, by June 3, 3014.

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pretrial conference remains set for May 28, 2014 at 2:00 p.m.

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The parties shall each submit a trial
The

Right-of-Publicity Plaintiffs and Antitrust Plaintiffs shall

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file their joint motion for preliminary settlement approval as

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soon as possible.

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then they shall submit a status report at 5:00 p.m. on that date

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and every court day thereafter.

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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

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Court anticipates that class notice will be issued on September 3,

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2014, after it has rendered a verdict on Antitrust Plaintiffs’

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claims against the NCAA.

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for early October 2014 and the final approval hearing for early

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December 2014.

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Publicity Plaintiffs’ claims against the NCAA as quickly as

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possible so that, if a settlement is achieved, class notice of it

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can be included in the notice of the settlement with EA and CLC.

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If the parties reach a settlement as to the Right-of-Publicity

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Plaintiffs’ claims against the NCAA, they shall notify the Court

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promptly.

The opt-out deadline could then be set

The parties shall attempt to settle Right-of-

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Right-of-Publicity Plaintiffs shall file their motion for

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class certification on all of their claims against the NCAA on

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June 26, 2014.

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2014.

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portions of the NCAA’s opposition or separately file a joint

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brief, not to exceed eight pages, opposing Right-of-Publicity

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Plaintiffs’ motion; if EA and CLC file a separate brief, they

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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

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conspiracy claim, which is the only claim that Right-of-Publicity

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Plaintiffs have asserted against the NCAA that they have also

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asserted against EA and CLC.

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be given an opportunity to oppose class certification later if the

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settlement is not consummated.

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shall file their reply on July 17, 2014.

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hearing will be held at 2:00 p.m. on July 31, 2014.

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certified, it may be desirable to include notice of it in the

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September 3, 2014 class notice regarding the settlement with EA

United States District Court
For the Northern District of California

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In the alternative, EA and CLC will

Right-of-Publicity Plaintiffs
The class certification
If a class is

and CLC.

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The Court adopts the Right-of-Publicity Plaintiffs and NCAA’s

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joint proposed discovery schedule for the claims involving them.

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Expert reports shall be exchanged on August 15, 2014; rebuttal

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expert reports shall be exchanged on September 15, 2014; and fact

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discovery shall conclude on October 1, 2014.

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The NCAA’s motion for summary judgment, contained in a single

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twenty-five page brief along with any Daubert motions, shall be

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filed on October 16, 2014.

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file their response, contained in a single twenty-five page brief

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with any cross-motions, on October 30, 2014.

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its reply, contained in a single fifteen page brief with its

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opposition to any cross-motions, on November 14, 2014.

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Publicity Plaintiffs shall file their reply to any of their cross-

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motions in a single fifteen page brief on December 3, 2014.

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summary judgment hearing will be held at 2:00 p.m. on December 18,

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2014.

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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
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of Right-of-Publicity Plaintiffs’ claims against the NCAA will

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begin at 8:30 a.m. on March 23, 2015.

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IT IS SO ORDERED.

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Dated: 5/23/2014

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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