Keller v. Electronic Arts Inc. et al

Filing 855

ORDER by Judge Claudia Wilken RESOLVING MISCELLANEOUS ( #833 , #834 , #836 , #838 ) MOTIONS. (ndr, COURT STAFF) (Filed on 9/10/2013) Modified on 9/11/2013 (cpS, COURT STAFF).

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4
5
6
7

No. C 09-1967 CW
IN RE NCAA STUDENT-ATHLETE
NAME & LIKENESS LICENSING
LITIGATION
________________________________/

8
9

ORDER RESOLVING
MISCELLANEOUS
MOTIONS (Docket
Nos. 833, 834,
836, 838, 840)

On July 19, 2013, Antitrust Plaintiffs filed a Third
Consolidated Class Action Complaint (3CAC).

Defendants filed

United States District Court
For the Northern District of California

10

several motions in response.

11

Electronic Arts Inc. (EA) moved for leave to file a motion to

12

dismiss the 3CAC.

13

Athletic Association (NCAA) filed its own motion for leave to file

14

a motion to dismiss, along with a motion for additional briefing

15

and an evidentiary hearing on Plaintiffs’ pending motion for class

16

certification.

17

Defendant Collegiate Licensing Company (CLC) moved to strike

18

certain allegations from the 3CAC.

19

under submission without oral argument.

First, on July 29, 2013, Defendant

The next day, Defendant National Collegiate

Finally, two days later, on August 1, 2013,

The Court took these matters

20

The Court grants Defendants’ requests for leave to file

21

motions to dismiss, denies NCAA’s motion for additional briefing,

22

and denies CLC’s motion to strike.

23

delay this case further, but finds itself compelled to allow an

24

additional round of motions, albeit on prompt and restricted

25

additional briefing, due to Defendants' insistence on pursuing all

26

available procedural steps, and the untimely changes in

27

Plaintiffs' theory of the case.

28

//

The Court is reluctant to

1

BACKGROUND

2

Antitrust Plaintiffs moved to certify a class in September
2012.

4

opposing it, Defendants moved to strike Antitrust Plaintiffs’

5

class certification motion.

6

raised a new theory of antitrust liability -- one based on an

7

alleged horizontal restraint -- which Plaintiffs had not

8

previously plead.

9

it allowed Defendants to file supplemental briefing in response to

10
United States District Court
For the Northern District of California

3

Plaintiffs’ class certification motion so that they could address

11

any new antitrust theories raised in Plaintiffs’ motion.

Docket

12

No. 673, Order on Defendants’ Motion to Strike, at 1-2.

The Court

13

also considered the briefing on the motion to strike as part of

14

Defendants’ opposition to Plaintiffs’ class certification motion.

15

Id. at 1.

16

Docket No. 554.

In October 2012, instead of simply

They argued that Plaintiffs’ motion

Although the Court denied the motion to strike,

At the hearing, the Court acknowledged that Plaintiffs had

17

raised a new theory of antitrust liability in their class

18

certification motion but noted that, because Defendants had been

19

able to attack this new theory in their motion to strike and in

20

supplemental briefs, another round of pleading and briefing on a

21

motion to dismiss would be duplicative, costly and time-consuming.

22

The Court also pointed out that Defendants would have another

23

opportunity to attack the merits of Plaintiffs' claims on a motion

24

for summary judgment, which was then scheduled to be briefed

25

beginning September 26, 2013.

26

Nonetheless, Defendants insisted that it would be useful for

27

Plaintiffs to file an amended complaint explicitly addressing

28

their new theory of antitrust liability.
2

Accordingly, the Court

1

instructed Antitrust Plaintiffs to amend their complaint "only the

2

minimum amount necessary to conform Antitrust Plaintiffs’ portion

3

of the complaint to their class certification motion.”

4

830.

5

named Plaintiff who is a current student-athlete” to the

6

complaint.

7

not file an additional motion to dismiss or for judgment on the

8

pleadings and shall instead include any arguments they would have

9

made therein in their future motions for summary judgment.”

Docket No.

The Court also permitted Antitrust Plaintiffs to “add a new

Id.

The Court’s order concluded, “Defendants shall

Id.

United States District Court
For the Northern District of California

10

After Plaintiffs filed their amended complaint, Defendants filed

11

the instant motions.

12
13
14

DISCUSSION
I.

Motions for Leave to File Motions to Dismiss
EA and NCAA request leave to file further motions to dismiss.

15

They each argue that they must be permitted to test the legal

16

sufficiency of any new theory in the 3CAC before the Court

17

certifies a class.

18

ample opportunity to respond to Antitrust Plaintiffs’ new theory,

19

as discussed above, the Court nevertheless grants their request.

20

Defendants may intend to seek an interlocutory appeal of any class

21

certification order, and the Court does not wish to leave open a

22

claim that they were not allowed to present all of their

23

arguments.

24

Although these Defendants have already had

Accordingly, NCAA may file a motion to dismiss within seven

25

days of this order.

26

support of the motion, NCAA shall first cite, by docket number,

27

page and line, each of the arguments it has previously made, that

28

it would like the Court to reconsider, against any new issues

It shall not be noticed for hearing.

3

In

raised by the 3CAC.

2

raised in the joint motion to strike Plaintiffs’ class

3

certification motion, Docket No. 639, the several briefs

4

Defendants filed subsequently in opposition to class

5

certification, Docket Nos. 677, 680, 794, 789, or the briefs

6

Defendants filed in support of their motions for leave to file a

7

motion to dismiss, Docket Nos. 834, 838, for leave to file

8

additional briefs, Docket No. 836, or to strike, Docket No. 840.

9

NCAA likewise may cite to but may not repeat facts and law in EA’s

10
United States District Court
For the Northern District of California

1

May 2011 motion to dismiss, Docket No. 331, and EA’s October 2011

11

motion for judgment on the pleadings, Docket No. 366.

12

wishes to argue facts or law that is not contained in any of these

13

briefs, it may file a memorandum only as long as necessary to do

14

so, but not to exceed ten pages.

15

NCAA may not repeat any of the arguments

If NCAA

The Court will accept EA's proposed brief in support of its

16

motion to dismiss and EA shall efile it forthwith.

17

consider these arguments as they may relate to CLC as well.

18

CLC now wishes to move to dismiss, it may file a further brief in

19

support, under the conditions set forth above.

20

The Court will
If

While Antitrust Plaintiffs note that granting Defendants

21

leave to file further motions to dismiss will likely delay the

22

progress of this case, and the Court is reluctant to do so,

23

Antitrust Plaintiffs contributed to this delay by raising a new

24

theory of their case at this relatively late stage in the

25

litigation.

26

Antitrust Plaintiffs may file a single brief in opposition to

27

the motions to dismiss, not to exceed the number of pages of

28

argument filed by Defendants, within seven days of the filing of
4

1

NCAA's motion to dismiss.

2

portions of the previous briefing that they would like the Court

3

to consider with regard to Defendants' motions, and may not repeat

4

any facts or law contained therein.

5

to five pages, addressing only new matter in Plaintiffs'

6

opposition, within three days thereafter.

7

joint five-page reply by the same date.

8

motions on the papers.

9

II.

Plaintiffs too must begin by citing all

NCAA may file a reply of up

EA and CLC may file a

The Court will decide the

10

NCAA’s Motion for Additional Briefing and an Evidentiary
Hearing

United States District Court
For the Northern District of California

NCAA requests additional briefing and an evidentiary hearing
11
on class certification “to address the new issues introduced by
12
the [3]CAC’s allegations.”

Docket No. 836, Mot. Additional Br.,

13
at 2.

Because NCAA is granted leave to file a motion to dismiss

14
the 3CAC, its request for additional briefing and a hearing is not
15
warranted.

NCAA has already been granted leave to exceed the page

16
limits for its class certification briefs and received extensive
17
argument time -- more than either of its co-Defendants -- at the
18
class certification hearing.

See Docket Nos. 676, 789-90.

19
Additional briefing and argument on class certification is not
20
likely to be useful.

There is no justification for the

21
extraordinary step of convening an evidentiary hearing.
22
III. CLC’s Motion to Strike
23
CLC’s motion to strike contains two parts.

First, CLC seeks

24
to strike any allegations in the 3CAC that pertain to “products
25
such as jerseys, bobbleheads, trading cards, action figures, and
26
photographs, which Plaintiffs admitted at the June 20, 2103 Class
27
Certification Hearing and Case Management Conference are no longer
28
5

1

part of the litigation.”

2

Second, CLC seeks to remove four of the recently added current

3

student-athletes from the 3CAC on the grounds that Plaintiffs were

4

only granted permission to add one current student-athlete --

5

rather than five -- to their complaint.1

6

CLC’s first request is denied.

Docket No. 840, CLC Mot. Strike 3-4.

None of Plaintiffs’

7

allegations regarding jerseys, bobbleheads, and other merchandise

8

is new to the 3CAC.

9

sufficient specificity which of these allegations it seeks to

CLC has also failed to identify with

United States District Court
For the Northern District of California

10

strike.

11

“contains pages and pages of immaterial and impertinent

12

allegations” without identifying any specific sentences that

13

should be stricken).

14

not to pursue certain theories does not necessarily require that

15

particular allegations be ordered stricken from the complaint.

16

See CLC Mot. Strike 3 (arguing that the complaint

Antitrust Plaintiffs' voluntary intention

CLC’s request to remove four of the new named Plaintiffs is

17

also denied.

18

stated that Plaintiffs “may add a new named Plaintiff who is a

19

current student-athlete,” Docket No. 830, the Court's turn of

20

phrase was not intended as a limitation.

21

logistical reasons, often involve multiple named plaintiffs as

22

proposed class representatives.

Courts have broad discretion to

23

permit joinder of new parties.

See Fed. R. Civ. P. 21 (“On motion

24

or on its own, the court may at any time, on just terms, add or

25

drop a party.”).

Although CLC is correct that the Court’s order

Class actions, for

CLC has not shown that it will be prejudiced by

26
27
28

1

Plaintiffs initially added six current student-athletes to the
complaint but one voluntarily dismissed his claims on July 30, 2013.
See Docket No. 835.

6

1

the inclusion of the four additional student-athletes here.

2

Although CLC asserts that it will need to take discovery of the

3

new Plaintiffs, CLC has not shown that these additional efforts

4

will be burdensome.

5

five days for the limited purpose of taking written discovery and

6

depositions of the new named Plaintiffs.2

The Court re-opens fact discovery for thirty-

7

CONCLUSION

8

For the reasons set forth above, EA’s motion for leave to

9

file a motion to dismiss (Docket No. 834) is GRANTED; NCAA’s

United States District Court
For the Northern District of California

10

motion for leave to file a motion to dismiss (Docket No. 838) is

11

GRANTED; NCAA’s motion for additional briefing and an evidentiary

12

hearing (Docket No. 836) is DENIED; and CLC’s motion to strike

13

(Docket No. 840) is DENIED.

14

remove an incorrectly filed document (Docket No. 833) is DENIED

15

because the incorrectly filed document has already been sealed.

16

Additionally, Plaintiffs’ motion to

NCAA and CLC may file their motions to dismiss, as outlined

17

above, within seven days of the date of this order.

18

may respond within seven days and Defendants may file their

19

replies three days thereafter.

20

Plaintiffs

Should any Defendant obtain any information to suggest that

21

any of the new named Plaintiffs is not an adequate or typical

22

class representative, it may promptly seek leave to file an

23

appropriate motion with the Court.

24

certifying a class of current student athletes has issued and been

If by that time, an order

25
26
27
28

2

CLC requests, in the alternative, that the Court order Plaintiffs
to cover the costs of any additional discovery that it may need to take
regarding the newly added student-athletes. This request -- which would
remove CLC’s incentives for seeking tailored and efficient discovery -is neither justified nor practical.

7

1

appealed, Defendants may file a request for a suggestion of

2

remand.

3

Fed. R. App. P. 12-1(b).

The antitrust case deadline to exchange opening expert

4

reports on the merits is continued to September 25, 2013.

5

deadline to depose experts on opening reports is continued to

6

October 15, 2013.

7

reports is continued to November 5, 2013.

8

experts on rebuttal reports is continued to November 12, 2013.

9

The

The deadline to exchange rebuttal expert
The deadline to depose

The deadline for Antitrust Plaintiffs to file any dispositive

United States District Court
For the Northern District of California

10

motion, including any Daubert motion, is continued to November 7,

11

2013.

12

including any Daubert objections, in a single brief, on or before

13

December 5, 2013.

14

be included in separate sections of the brief.

15

Plaintiffs shall file their reply and opposition in a single brief

16

on or before January 6, 2014.

Defendants shall file their reply

17

on or before February 3, 2014.

The Court shall hear the motions

18

and hold a case management conference on February 20, 2014, at

19

2:00 p.m.

20

Defendants shall file their opposition and cross-motion,

Arguments applicable to only one Defendant may
Antitrust

If any party seeks to file any other motion addressing any

21

claims or defenses, or class certification, it must first obtain

22

leave of the Court to do so by filing an administrative motion

23

under Local Rule 7-ll.

24

management schedule must be preceded by meeting and conferring and

25

must be made in an administrative motion.

26

must be presented to the discovery Magistrate Judge in accordance

27

with his procedures.

Any request for a change to the case

28
8

Any discovery disputes

1
2
3

A final pretrial conference shall be held on May 28, 2014.
Trial shall begin at 8:30 a.m. on June 9, 2014.
Fact discovery regarding Right-of-Publicity Plaintiffs'

4

claims shall open when the Ninth Circuit lifts its stay.

5

two weeks of the Ninth Circuit's decision to lift the stay, the

6

parties shall file a stipulated case management schedule, or their

7

separate proposals, for the right-of-publicity claims.

8

Within

IT IS SO ORDERED.

9

United States District Court
For the Northern District of California

10
11

Dated: 9/10/2013

CLAUDIA WILKEN
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9