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

Filing 167

MOTION for Preliminary Approval of Class Action Settlement; Memorandum of Points and Authorities In Support Of filed by Edward C. O'Bannon, Jr.. Motion Hearing set for 7/3/2014 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 6/13/2014. Replies due by 6/20/2014. (Attachments: #1 Memorandum In Support, #2 Exhibit 1, #3 Declaration of Michael D. Hausfeld, #4 Declaration of Steve W. Berman, #5 Declaration of Leonard W. Aragon)(Scherrer, Hilary) (Filed on 5/30/2014) Modified on 6/2/2014 (cpS, COURT STAFF).

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Robert B. Carey (Pro Hac Vice)
Leonard W. Aragon (Pro Hac Vice)
HAGENS BERMAN SOBOL SHAPIRO LLP
11 West Jefferson, Suite 1000
Phoenix, Arizona 85003
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Stuart M. Paynter (226147)
Celeste H.G. Boyd (Pro Hac Vice)
THE PAYNTER LAW FIRM PLLC
1200 G Street N.W., Suite 800
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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SAMUEL MICHAEL KELLER, on behalf of
himself and all others similarly situated,,
Plaintiff,

Case No. 4:09-cv-1967 CW
DECLARATION OF STEVE W.
BERMAN

v.
ELECTRONIC ARTS, INC.; NATIONAL
COLLEGIATE ATHLETICS ASSOCIATION;
COLLEGIATE LICENSING COMPANY,

Judge: Hon. Claudia Wilken
Courtroom: 2, 4th Floor
Complaint Filed: May 5, 2009

Defendants.

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I, Steve W. Berman, declare as follows:

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1.

I am a partner at Hagens Berman Sobol Shapiro LLP. The Court has appointed my

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law firm as Co-Lead Counsel with principal responsibility for the Right of Publicity claims. I

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submit this Declaration in Support of Plaintiffs’ Motion for Preliminary Approval of Class Action

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Settlement. Unless otherwise stated, I have personal knowledge of the information set forth in this

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Declaration.

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2.

Counsel for the Antitrust Plaintiffs, the Keller Right of Publicity Plaintiffs,

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Electronic Arts Inc. (“EA”) and Collegiate Licensing Company (“CLC”) first engaged in

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settlement discussions in November 2011 before retired Judge Edward Infante. Those discussions

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did not lead to a resolution.
3.

Counsel for the Antitrust Plaintiffs, the Keller Right of Publicity Plaintiffs, and EA

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agreed to engage in settlement discussions again in the fall of 2013, this time including then-

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counsel for the Hart Right of Publicity Plaintiffs. The parties participated in mediation before

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Randy Wulff (“Wulff”) of Wulff Quinby Sochynsky, a dispute resolution firm, on September 10,

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2013. The basic parameters of the settlement were agreed upon at that session, and the parties

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proceeded to draft a term sheet, which was executed on September 26, 2013. The parties then

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began negotiating a long-form settlement agreement.

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4.

In or around October 2013, Hart replaced his counsel and the substitute counsel,

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Lum, Drasco & Positan, LLC (“LDP”) and McKenna Law Firm LLC (“McKenna”), undertook an

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independent review of the term sheet and draft long-form settlement agreement. Hart’s counsel

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ultimately consented to the then-agreed to terms.

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5.

Over the course of the next several months, counsel for the parties participated in

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numerous arm’s-length and hard-fought, telephonic negotiating sessions and exchanged drafts and

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redlines of the long-form settlement agreement.

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6.

By April 2014, issues remained about how to allocate the proposed settlement fund,

which were resolved in a multiple sessions with Wulff held in April 2014. Thereafter, the parties

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DECLARATION OF STEVE W. BERMAN
Case. No. 09-CV-1967 CW

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continued to negotiate the final details of the long-form settlement agreement and its respective

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exhibits. The settlement agreement was executed on May 15, 2014.

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7.

The settlement discussions and negotiations were always at arm’s length, non-

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collusive, and in good faith. All parties vigorously negotiated their respective positions on all

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material terms of the Settlement Agreement. Plaintiffs’ counsel zealously advanced their respective

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positions and were fully prepared to continue to litigate rather than to accept a settlement that was

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not in the best interests of the Class.

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8.

In connection with these settlement negotiations, Counsel for the Right of Publicity

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Plaintiffs were informed of the facts concerning liability and damages and the relative strengths

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and weaknesses of each party’s litigation position. We analyzed and evaluated many contested

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legal and factual issues posed by the litigation so that adequate demands and accurate evaluation of

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EA’s positions could be made.

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I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct. Executed this 29th day of May, 2014 in Seattle, Washington.

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/s/ Steve W. Berman
STEVE W. BERMAN

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DECLARATION OF STEVE W. BERMAN
Case. No. 09-CV-1967 CW