O'Bannon, Jr. v. National Collegiate Athletic Association et al

Filing 121

JOINT CASE MANAGEMENT STATEMENT filed by National Collegiate Athletic Association. (Geller, Jason) (Filed on 11/10/2009)

O'Bannon, Jr. v. National Collegiate Athletic Association et al

Doc. 121

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Gregory L. Curtner (pro hac vice) Robert J. Wierenga (SBN183687) Kimberly K. Kefalas (pro hac vice) Atleen Kaur (pro hac vice) Suzanne L. Wahl (pro hac vice) MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. 101 North Main St., 7th Floor Ann Arbor, MI 48104 Telephone: [phone] Facsimile: [phone] Email: [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] Jason A. Geller (SBN168149) Glen R. Olson (SBN111914) David Borovsky (SBN 216588) LONG & LEVIT LLP 465 California Street, 5th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] Email: [e-mail] [e-mail] [e-mail] Attorneys for Defendant National Collegiate Athletic Association UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION EDWARD C. O'BANNON, JR., on behalf of himself and all others similarly situated, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION (a/k/a the "NCAA"), and COLLEGIATE LICENSING COMPANY, (a/k/a "CLC"). Defendants. Case No. 09-cv-3329 CW JOINT CASE MANAGEMENT STATEMENT Date: Time: Dept: Judge: November 17, 2009 2:00 p.m. Courtroom 2, 4th Floor Hon. Claudia Wilken

Date Comp. Filed: July 21, 2009

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The undersigned parties met and conferred in advance of the November 17, 2009 Case Management Conference. In light of the pending motions to consolidate, dismiss, strike, and appoint interim lead counsel, as well as Plaintiff's indication that, depending on the outcome of the motion to consolidate, he may be filing an amended complaint, the parties agreed that it was premature to discuss discovery, initial disclosures and related matters at this time. However, Plaintiffs O'Bannon and Keller are currently coordinating on drafting a proposed schedule of discovery, initial disclosures and related matters for submission to Defendants, if their cases are consolidated. Therefore, the parties hereby submit this Case Management Conference statement, which reflects the early stage of these proceedings. 1. Jurisdiction and Venue. The Court has diversity jurisdiction over this action

pursuant to 28 U.S.C. § 1332(a) and (d) because the amount in controversy for the purported class exceeds $5,000,000. There are no issues regarding personal jurisdiction and no parties remain to be served. Defendant NCAA and CLC have moved to transfer venue to the United States District Court for the Southern District of Indiana pursuant to 28 U.S.C. § 1404. 2. Facts. Plaintiff is a former college basketball player. He alleges, on behalf of

himself and a class of other former college football and basketball players, that Defendants have unlawfully conspired with various third parties to fix the price paid to Plaintiff for the use of his name, likeness or image and to boycott him to deprive him of compensation for such use. Based on these allegations, Plaintiff asserts causes of action under the federal antitrust laws, Section 1 of the Sherman Act, 15 U.S.C. § 1, and under state common law for unjust enrichment and an accounting. Defendants deny that they have fixed prices paid to Plaintiff or that they have undertaken any actions to deny him compensation for the use of his name, likeness, or image. Defendants further deny that they, individually or together, have violated the federal antitrust
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laws, including Section 1 of the Sherman Act, or that they have been unjustly enriched or that Plaintiff is entitled to an accounting. 3. Legal Issues. The principal legal issues are set forth Plaintiff's complaint and in

detail in Defendants' motions to dismiss and Plaintiff's oppositions thereto. 4. Motions. Defendants each filed separate motions to dismiss, which are pending.

Defendants also have jointly filed a Motion to Transfer Venue, which is also pending. Plaintiff has filed a motion to consolidate this action with the Keller matter, which motion is pending. In addition, Plaintiff's counsel has filed a motion to be appointed interim co-lead counsel, which motion is pending. Should the Court not grant their motions to dismiss, both parties anticipate filing motions for summary judgment. In addition, if the Court does not grant the motions to dismiss, the Court will hear motions with respect to the certification of the proposed class. 5. Amendment of Pleadings. After the Court rules on his motion to consolidate this

action with the Keller, Plaintiff anticipates filing an amended complaint. No other amendment of pleadings is anticipated at this time. 6. Evidence Preservation. The parties will discuss the issue further during the Rule

26 conference on discovery matters after resolution of the pending motions and pleadings. Plaintiff believes that the Court should order the parties to conduct a Rule 26 conference within 30 days of the filing of an amended consolidated complaint or the denial of Plaintiff's motion to consolidate.

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7.

Disclosures. As described above, in light of the unsettled nature of the pleadings

and the pending motions to consolidate, dismiss, strike, and appoint interim lead counsel, the parties believe it is premature to exchange initial disclosures at this stage. Defendants specifically object to providing initial disclosures at this time. Plaintiff believes that initial disclosures should be exchanged within fourteen days of the Rule 26 conference discussed in paragraph 6. 8. Discovery. As described above, in light of the unsettled nature of the pleadings

and the pending motions to consolidate, dismiss, strike, and appoint interim lead counsel, the parties believe it is premature to discuss a discovery plan at this stage. 9. Class Actions. In light of the unsettled nature of the pleadings and the pending

motions to consolidate, dismiss, strike, and appoint interim lead counsel, the parties believe it is premature to discuss proposal for how and when to address class certification. 10. Related Cases. Several cases have been filed that are related to this case,

including the following that have been filed in this Court: Newsome v. NCAA et al., 09-cv-4883. In addition, the following cases are pending in federal district court in and also relate to the alleged fixing of prices paid to and boycotting of former NCAA basketball and football: Wimprine v. NCAA et al., United States District Court for the Northern District of California, 09cv-5134; Anderson v. NCAA et al., United States District Court for the Northern District of California, 09-cv-5100; Nuckles v. NCAA et al., United States District Court for the Eastern District of Tennessee, Case No. 09-cv-0235, 09-cv-0236. 11. Relief. Plaintiff seeks the relief requested in its Prayer for Relief (A ­ I) in his

complaint. Plaintiff believes that if the O'Bannon and Keller cases are consolidated, an amended complaint will be filed and this requested relief will change.

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12.

Settlement and ADR: In light of the unsettled nature of the pleadings and the

pending motions to consolidate, dismiss, strike, and appoint interim lead counsel, the parties believe it is premature to discuss the prospects for settlement at this stage. But the parties are open, at an appropriate later date, to all reasonable mechanisms the Court believes will help facilitate a timely resolution of this case. 13. Consent to Magistrate Judge for All Purposes. All parties do not consent to the

use of a magistrate judge to conduct all further proceedings. 14. Other References: In light of the unsettled nature of the pleadings and the pending

motions to consolidate, dismiss, strike, and appoint interim lead counsel, the parties believe it is premature to discuss the prospects for reference to arbitration, a special master, or the Judicial Panel on Multidistrict Litigation. 15. Narrowing of Issues: In light of the unsettled nature of the pleadings and the

pending motions to consolidate, dismiss, strike, and appoint interim lead counsel, the parties believe it is premature to discuss the prospects narrowing of issues. 16. Expedited Schedule: Defendants do not believe that this is the type of case that

could be handled on an expedited basis. Plaintiff, however, believes that once a consolidated amended complaint is filed, the parties could agree to a schedule that allows trial to begin in early 2011. 17. Scheduling: In light of the unsettled nature of the pleadings and the pending

motions to consolidate, dismiss, strike, and appoint interim lead counsel, the parties believe it is premature to discuss scheduling for the designation of experts, discovery, hearing of dispositive motions, pretrial conference, and trial. Plaintiff, however, believes that these issues can be

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addressed at a Rule 26 conference within 30 days of the filing of an amended consolidated complaint or the denial of Plaintiff's motion to consolidate. 18. Trial: The parties currently anticipate that this matter will be tried to a jury. In

light of the unsettled nature of the pleadings and the pending motions to consolidate, dismiss, strike, and appoint interim lead counsel, the parties believe it is premature to estimate the length of trial. 19. Disclosure of Non-party Interested Entities of Persons: Each party has filed the

"Certification of Interested Entities or Parties." In addition, the parties individually state as follows: Defendant Electronic Arts Inc. has no parent corporation or publicly held corporation owning 10% or more of its shares. Defendant National Collegiate Athletic Association has no parent corporation or publicly held corporation owning 10% or more of its shares. Defendant Collegiate Licensing Company's parent corporation is IMG Worldwide, Inc., owning 10% or more of its shares. Respectfully submitted, MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. Dated: November 10, 2009 . By: /s/ Robert J. Wierenga Robert J. Wierenga (SBN183687) Attorneys for Defendant NCAA

Dated: November 10, 2009

By: /s/ Peter M. Boyle Peter M. Boyle (pro hac vice) KILPATRICK STOCKTON LLP Attorneys for Defendant CLC
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Dated: November 10, 2009

By: /s/ Megan Jones Megan Jones (pro hac vice) HAUSFELD LLP Attorneys for Edward C. O'Bannon, Jr.

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DOCS\S0256-106\571081.V2

CERTIFICATE OF SERVICE I hereby certify that on November 10, 2009, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification to the e-mail addresses registered.

By: /s/ Jason A. Geller Jason A. Geller (SBN168149) LONG & LEVIT LLP Attorneys for Defendant NCAA

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