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

Filing 204

Non-Party MOTION to Intervene for the Limited Purpose of Protecting the Public Disclosure of Plaintiffs' Trial Exhibit 400 and Brief In Support of Defendant National Collegiate Athletic Association's Administrative Motion to Seal Confidential Trial Exhibits filed by CBS Broadcasting, Inc.. Motion Hearing set for 6/9/2014 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 6/9/2014. Replies due by 6/9/2014. (Attachments: #1 Declaration of Daniel Weinberg, #2 Proposed Order)(Cox, Christopher) (Filed on 6/11/2014) Modified on 6/12/2014 (cpS, COURT STAFF).

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CHRISTOPHER J. COX (Bar No. 151650)
Email: [e-mail]
WEIL, GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]
Attorneys for Non-Party
CBS BROADCASTING, INC.

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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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EDWARD O’BANNON, et al.,

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Plaintiff,
v.
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION; COLLEGIATE LICENSING
COMPANY; and ELECTRONIC ARTS,
Defendants.

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Case No. 4:09-CV-3329-CW
NON-PARTY CBS BROADCASTING
INC.’S NOTICE OF MOTION AND
MOTION TO INTERVENE FOR
THE LIMITED PURPOSE OF
PROTECTING THE PUBLIC
DISCLOSURE OF PLAINTIFFS’
TRIAL EXHIBIT 400 AND BRIEF IN
SUPPORT OF DEFENDANT
NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION’S
ADMINISTRATIVE MOTION TO
SEAL CONFIDENTIAL TRIAL
EXHIBITS
Trial Date: June 9, 2014
Department: Courtroom 2, 4th Floor
Judge:
Hon. Claudia Wilken

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TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

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PLEASE TAKE NOTICE that as soon as the matter may be heard in the courtroom of

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the Hon. Claudia Wilken, non-party CBS Broadcasting Inc. (“CBS”) will move, and does

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hereby move, to intervene in this matter for the limited purpose of protecting the public

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disclosure of Plaintiffs’ Trial Exhibit 400. This Motion is based upon the attached

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Memorandum of Points and Authorities and the Supplemental Declaration of Daniel Weinberg

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(the “Supplemental Weinberg Declaration”) filed concurrently herewith.

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NON-PARTY CBS NOTICE OF MOTION AND
MOTION TO INTERVENE AND BRIEF IN SUPPORT
OF NCAA’S ADMIN MOTION TO SEAL

CASE NO. 4:09-CV-3329-CW

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MEMORANDUM OF POINTS AND AUTHORITIES
Non-party CBS Broadcasting Inc. (“CBS”) respectfully submits this Motion to

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Intervene for the Limited Purpose of Protecting the Public Disclosure of Plaintiffs’ Exhibit

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400—the Multi-Media Agreement between Turner Broadcasting System, Inc. (“TBS”), CBS

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and the National Collegiate Athletic Association (“NCAA”), dated April 22, 2010 (the “Multi-

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Media Agreement”) and this brief to join NCAA’s Administrative Motion to Seal Confidential

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Trial Exhibits (Dkt. 200), which CBS incorporates by reference, and in response to Plaintiffs’

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Opposition to NCAA’s Administrative Motion to Seal (Dkt. 202).

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CBS should be allowed to intervene in this case for the limited purpose of protecting the

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disclosure of certain of its confidential information in the Multi-Media Agreement because, as

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described in more detail in CBS’ Brief In Support of Defendant National Collegiate Athletic

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Association’s Administrative Motion To Seal Confidential Trial Exhibits (“CBS’ Brief in

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Support of Motion to Seal”) (Dkt. 200), such disclosure would put CBS at a competitive

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disadvantage in future negotiations and would benefit CBS’ competitors in similar negotiations.

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This risk of competitive disadvantage is amply demonstrated in CBS’ Brief in Support

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of Motion to Seal. Moreover, in light of the Court’s recent Order (Dkt. 201) denying in part

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Non-parties Conference USA’s and the Big 12 Conference’s Motion to Seal, and Plaintiffs’

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Opposition to NCAA’s Administrative Motion to Seal, CBS is concurrently filing with this

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Motion the Supplemental Declaration of Daniel Weinberg, dated June 11, 2014, which provides

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particularized information about the sensitive nature of specific provisions of the Multi-Media

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Agreement.

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A.

CBS SHOULD BE GRANTED LIMITED INTERVENTION AS A
MATTER OF RIGHT

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Federal Rule of Civil Procedure 24 affords non-parties the opportunity to intervene in

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litigations potentially affecting their interests. Fed. R. Civ. P. 24. In determining whether

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intervention is appropriate, courts are guided primarily by practical and equitable

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considerations, and the requirements for intervention are broadly interpreted in favor of

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NON-PARTY CBS NOTICE OF MOTION AND
MOTION TO INTERVENE AND BRIEF IN SUPPORT
OF NCAA’S ADMIN MOTION TO SEAL

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CASE NO. 4:09-CV-3329-CW

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intervention. United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004).

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Furthermore, a non-party can intervene pursuant to Rule 24 for a limited purpose in the

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litigation without becoming a full party to the action. See LG Electronics Inc. v. Q–Lity

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Computer Inc., 211 F.R.D. 360, 364 (N.D.Cal.2002); Apple, Inc. v. Samsung Electronics Co.,

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Ltd., 11-CV-01846-LHK, 2013 WL 3958232, *2 (N.D. Cal. July 29, 2013) (“a non-party

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seeking to intervene may also intervene for a limited purpose”).

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The Ninth Circuit has interpreted Rule 24(a)(2) to require proof of four elements from

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the applicant seeking intervention as of right: (1) the application must be timely; (2) the

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applicant must have a significantly protectable interest relating to the transaction that is the

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subject of the litigation; (3) the applicant must be so situated that the disposition of the action

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may, as a practical matter, impair or impede the applicant’s ability to protect its interest; and (4)

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the applicant’s interest must be inadequately represented by the parties before the court. Smith

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v. Marsh, 194 F.3d 1045, 1049 (9th Cir. 1999). As discussed in more detail below, each of

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these elements supports CBS’ motion to intervene.

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1.

CBS’ Motion To Intervene is Timely

On June 9, 2014, the NCAA filed its Administrative Motion to seal Confidential Trial

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Exhibits (the “NCAA’s Motion”) indicating that the parties have not been able to reach an

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agreement on appropriate redactions to Trial Exhibit 400—the Multi-Media Agreement.

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Within hours of learning of this, CBS filed a brief in support of the NCAA’s Motion on June 9,

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2014 (Dkt. 200). In addition to its brief in support of the NCAA’s Motion, CBS has promptly

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moved to intervene in this case for the limited purpose of challenging disclosure of its

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confidential and proprietary information (Dkt. 200-9). Because CBS only just learned of

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plaintiffs’ intent to admit the Multi-Media Agreement in unredacted form, CBS’ motion is

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timely. Smith, 194 F.3d 1045 at 1052 (“The crucial date for assessing the timeliness of a

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motion to intervene is when proposed intervenors should have been aware that their interests

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would not be adequately protected by the existing parties.”).

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NON-PARTY CBS NOTICE OF MOTION AND
MOTION TO INTERVENE AND BRIEF IN SUPPORT
OF NCAA’S ADMIN MOTION TO SEAL

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CASE NO. 4:09-CV-3329-CW

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Additionally, because CBS only intends to intervene for the limited purpose of

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protecting certain of its confidential information in the Multi-Media Agreement, there is no risk

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that CBS’ intervention would prolong the litigation, threaten any potential settlement or upset

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what the parties have been able to accomplish so far in the litigation. Therefore, there are no

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prejudicial effects which render this motion untimely. See Smith ex rel. Thompson v. Los

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Angeles Unified Sch. Dist., CV 93-7044 RSWL GHKX, 2014 WL 176677 (C.D. Cal. Jan. 16,

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2014) (“Prejudice may be found where intervention would prolong the litigation, threaten the

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Parties’ settlement, or upset a delicate balance achieved after years of litigation.”).

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2.
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CBS Has a Significantly Protectable Interest Relating to the
Transaction That is the Subject of the Litigation

In determining whether a putative intervenor has demonstrated the “significantly

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protectable” interest necessary for intervention of right, courts in the Ninth Circuit have held

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that the operative inquiry is whether the interest is protectable under some law and whether

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there is a relationship between the legally protected interest and the claims at issue. Smith,

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2014 WL 176677, at *9. “Whether an applicant for intervention demonstrates sufficient

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interest in an action is a practical, threshold inquiry. No specific legal or equitable interest need

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be established.” Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001).

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Courts have held an interest in protecting proprietary trade secrets and other confidential

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information sufficient to warrant intervention. See Armour of America v. U.S., 70 Fed.Cl. 240,

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243–44 (Fed. Cl. 2006) (noting that “[i]nterests in property are the most elementary type of

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right that Rule 24(a) is designed to protect” and holding protection of trade secrets and other

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confidential information from public disclosure was sufficient).

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Here, CBS’ interest in protecting the confidential terms of the Multi-Media Agreement

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and its proprietary business information contained therein clearly constitutes a significantly

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protectable interest necessary for intervention of right. See Beckman Indus., Inc. v. Int’l Ins.

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Co., 966 F.2d 470, 472 (9th Cir. 1992). Indeed, the Court previously recognized that portions

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of the Multi-Media Agreement contained competitively sensitive information, public disclosure

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NON-PARTY CBS NOTICE OF MOTION AND
MOTION TO INTERVENE AND BRIEF IN SUPPORT
OF NCAA’S ADMIN MOTION TO SEAL

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CASE NO. 4:09-CV-3329-CW

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of which would harm the parties thereto, including CBS. See Case No. 09-CV-1967-CV, Dkt.

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No. 626 at 8. CBS has kept this information secret, and as described more fully below and in

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the Supplemental Weinberg Declaration, at ¶¶ 3-8, public disclosure of this information would

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cause CBS serious and irreparable harm.

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3.
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CBS Is So Situated that the Disposition of the Action May, as a
Practical Matter, Impair or Impede CBS’ Ability to Protect Its
Interest

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Denial of the NCAA’s Motion would impair or impede CBS’ ability to protect its rights.
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In determining whether the disposition of an action would impair or impede putative
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intervenors’ ability to protect their interests, Ninth Circuit courts “follow the guidance of Rule
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24 advisory committee notes that state that ‘[i]f an absentee would be substantially affected in a
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practical sense by the determination made in an action, he should, as a general rule, be entitled
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to intervene.’” Berg, 268 F.3d at 822.
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If the NCAA’s Motion is denied and CBS’ highly confidential information contained in
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the Multi-Media Agreement is disclosed in the public record, CBS will be irreparably injured.
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The nonpublic provisions of the Multi-Media Agreement contain competitively sensitive
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information, including content licensing terms and licensing rights obtained for consideration,
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that are highly sensitive to CBS. See Declaration of Daniel Weinberg, dated June 9, 2014
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(“Weinberg Decl.”) at ¶ 7. CBS competes with a number of entities to obtain rights to
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broadcast content, and takes steps to ensure that the Multi-Media Agreement and the highly
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confidential information therein are not disclosed outside of a group of persons within CBS
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who have a business reason to know their contents. Id. at ¶ 7–8; see Supplemental Weinberg
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Decl.
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Public disclosure of such information could benefit third parties who wish to participate
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in future negotiations for the licensing and distribution of NCAA content, including competitors
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of CBS. In particular, the redacted terms of the Multi-Media Agreement were heavily
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negotiated, and if the terms therein are publicly disclosed, entities with which CBS negotiates
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for rights, and entities with which CBS competes to obtain rights, will be able to use knowledge
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NON-PARTY CBS NOTICE OF MOTION AND
MOTION TO INTERVENE AND BRIEF IN SUPPORT
OF NCAA’S ADMIN MOTION TO SEAL

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CASE NO. 4:09-CV-3329-CW

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of those terms to the detriment of CBS in its efforts to negotiate future rights agreements. Id. at

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¶ 8; see In re Electronic Arts, Inc., 298 Fed.Appx. 568, 569–570 (9th Cir. 2008) (reversing trial

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court’s denial of motion to file document under seal and finding that a licensing agreement

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containing “pricing terms, royalty rates, and guaranteed minimum payment terms” constituted

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information that would “irreparably damage[]” petitioner if disclosed); see also Nixon v.

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Warner Communications, Inc., 435 U.S. 589, 598 (1978) (“the common-law right of inspection

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has bowed before the power of a court to insure that its records are not used . . . as sources of

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business information that might harm a litigant’s competitive standing”). Indeed, this is

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precisely why CBS takes measures to protect its confidential information. If the NCAA’s

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Motion is denied, CBS’ ability to protect its interest will be impaired and impeded.

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4.
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CBS’ Interest is Inadequately Represented by the Parties before the
Court

A party seeking to intervene bears a “minimal” burden of showing that their interest is

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inadequately protected by the existing parties—the applicant need only show that representation

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of its interests by existing parties “may be” inadequate. Berg, 268 F.3d at 822-23 (citing

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Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10 (1972)). In making this

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determination, courts consider: (1) whether the interest of a present party is such that it will

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undoubtedly make all the intervenor’s arguments; (2) whether the present party is capable and

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willing to make such arguments; and (3) whether the would-be intervenor would offer any

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necessary elements to the proceedings that other parties would neglect. Berg, 268 F.3d at 822.

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While the NCAA and CBS have both sought to protect the Multi-Media Agreement

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from public disclosure, CBS, as a broadcaster, has different potential harm from public

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disclosure than the NCAA, given CBS’ business transactions with other sports entities.

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Supplemental Weinberg Decl. at ¶ 9. Accordingly, NCAA will not “undoubtedly” make all of

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CBS’ arguments.

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CBS and the NCAA are both parties to the heavily-negotiated Multi-Media Agreement,
but have different interests with respect to the confidential information contained therein. The

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NON-PARTY CBS NOTICE OF MOTION AND
MOTION TO INTERVENE AND BRIEF IN SUPPORT
OF NCAA’S ADMIN MOTION TO SEAL

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CASE NO. 4:09-CV-3329-CW

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NCAA necessarily takes into account different considerations in negotiation than does CBS as a

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broadcaster. CBS operates in a different market than does the NCAA. The nature of CBS’

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business means it must take into account the potential effects of disclosure of confidential

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information in a manner completely separate and apart from the NCAA. CBS must consider

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different types of potential business partners and competitors than the NCAA. This unique

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knowledge and perspective on CBS’ own competitive concerns brings new elements to the

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proceeding that warrants intervention. See Nikon Corp. v. ASM Lithography B.V., 222 F.R.D.

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647, 650 (finding that intervenor had made a sufficient showing of inadequacy of representation

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where it brought a “unique [] level of expertise” to the litigation despite the fact that its “core

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litigation objective” was the same as the existing party’s).
Therefore, CBS has met its minimal burden to show that its interest in protecting its
confidential information may not be adequately represented by the NCAA.

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B.

CBS SHOULD ALTERNATIVELY BE ALLOWED TO PERMISSIVELY
INTERVENE

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Rule 24(b) provides for permissive intervention when: (1) the motion is timely; and (2)

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the movant’s “claim or defense . . . shares with the main action a common question of law or

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fact.” Fed. R. Civ. P. 24(b). As discussed in more detail above, CBS’ motion is timely as CBS

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only recently discovered that the plaintiffs intend to admit the unredacted version of the Multi-

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Media Agreement at trial. Additionally, courts in this district have held that where the movant

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seeks to intervene for the limited purpose of ensuring that an agreement between the movant

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and a party is maintained under seal, the movant need not demonstrate a common question of

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law of fact. See Apple, 2013 WL 3958232, *2 (allowing non-party to intervene pursuant to

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Rule 24(b) for the limited purpose of ensuring that a license agreement containing sensitive

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commercial information was maintained under seal). Accordingly, CBS requests that the Court

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exercise its discretion and allow CBS to intervene for the limited purpose of opposing the

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disclosure of its confidential information in the Multi-Media Agreement.

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NON-PARTY CBS NOTICE OF MOTION AND
MOTION TO INTERVENE AND BRIEF IN SUPPORT
OF NCAA’S ADMIN MOTION TO SEAL

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CASE NO. 4:09-CV-3329-CW

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C.

PUBLIC DISCLOSURE OF THE REDACTED TERMS OF THE MULTIMEDIA AGREEMENT WILL CAUSE COMPETITIVE HARM TO CBS

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As described in more detail in the Weinberg Declaration and Supplemental Weinberg

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Declaration, there is good cause and compelling reasons to protect the confidential information

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that was already redacted in previous filings. In the alternative, the Court should at a minimum

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protect the specific provisions of the Multi-Media Agreement identified in the Supplemental

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Weinberg Declaration. The sections described in the Supplemental Weinberg Declaration

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contain highly sensitive and proprietary business information that is not currently in the public

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domain, and disclosure would hinder CBS’ ability to negotiate licensing agreements in the

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future. Alternatively, CBS requests that the Court conduct an in camera review of Exhibit 400.

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See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1182 (9th Cir. 2006).

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Plaintiffs’ Opposition to the NCAA’s Administrative Motion to Seal proposed Trial

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Exhibit 400 agrees that most of the Multi-Media Agreement should be redacted, but seeks to

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publicly disclose seven provisions. While there are valid bases to redact all unsealed portions

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of the Multi-Media Agreement, CBS is willing to allow most of what Plaintiffs have identified

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as provisions of interest. Of these provisions however, CBS objects to public disclosure of only

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certain portions four previously redacted provisions: limited Subsections of Section 1; just two

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of the sixty-three definitions contained within (the definitions of the terms “Broadcaster Multi-

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Sport Package,” and “Broadcaster Platform,”), Section 2 (other than 2.11) (“Broadcaster Rights

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and Restrictions”), Subsection 9.5 (“Promotional Inventory”) and Ex. B. Dkt. No. 202 at 3.

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For the reasons set out in the Supplemental Weinberg Declaration, the above-referenced

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portions of these four sections should remain redacted in any public trial exhibit along with the

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additional sections discussed in the Declaration that Plaintiffs do not seek to disclose.1

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CBS has submitted specific bases for sealing only these limited provisions that Plaintiffs do not
agree should remain under seal, but reserves the right to provide further explanation if needed on
other provisions if the Court takes an even more restrictive view than Plaintiffs on redactions.
NON-PARTY CBS NOTICE OF MOTION AND
MOTION TO INTERVENE AND BRIEF IN SUPPORT
OF NCAA’S ADMIN MOTION TO SEAL

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CASE NO. 4:09-CV-3329-CW

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D.

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For the reasons set forth in CBS’ Brief in Support of Motion to Seal, the Court should

CONCLUSION

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grant the NCAA’s Administrative Motion to Seal Confidential Trial Exhibits, which CBS joins.

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In the alternative, at a minimum, for the reasons set forth herein and in the Supplemental

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Weinberg Declaration, the Court should grant CBS’ Motion to Intervene for the Limited

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Purpose of Protecting the Public Disclosure of Plaintiffs’ Trial Exhibit 400 and seal the

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commercially sensitive provision of Plaintiffs’ Trial Exhibit 400 particularized in the

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Supplemental Weinberg Declaration.

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Dated: June 11, 2014

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Respectfully submitted,
WEIL, GOTSHAL & MANGES LLP

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By:

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/s/ Christopher J. Cox
Christopher J. Cox
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Non-Party
CBS BROADCASTING, INC.

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NON-PARTY CBS NOTICE OF MOTION AND
MOTION TO INTERVENE AND BRIEF IN SUPPORT
OF NCAA’S ADMIN MOTION TO SEAL

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CASE NO. 4:09-CV-3329-CW