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

Filing 288

Joint Filing of Amended Settlement Agreements and Exhibits Thereto by Samuel Michael Keller (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Carey, Robert) (Filed on 7/24/2014) Modified on 7/25/2014 (cpS, COURT STAFF).

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1 2 3 4 5 6 7 Gregory L. Curtner (Pro Hac Vice) Robert J. Wierenga (SBN 183687) Kimberly K. Kefalas (Pro Hac Vice) SCHIFF HARDIN LLP 350 South Main St., Suite 210 Ann Arbor, MI 48104 Telephone: (734) 222-1500 Facsimile: (734) 222-1501 gcurtnery@schiffhardin.com rwierenga@schiffhardin.com kkefalas@schiffhardin.com Attorneys for Defendant National Collegiate Athletic Association 12 KEKER & VAN NEST LLP Robert A. Van Nest R. James Slaughter 633 Battery Street San Francisco, CA 94111 Tel: (415) 391-5400 Fax: (415) 397-7188 rslaughter@kvn.com Attorneys for Defendant Electronic Arts Inc. 13 HAGENS BERMAN SOBOL SHAPIRO LLP Robert B. Carey (Pro Hac Vice) Leonard W. Aragon (Pro Hac Vice) 11 West Jefferson, Suite 1000 Phoenix, Arizona 85003 Telephone: (602) 840-5900 Facsimile: (602) 840-3012 rob@hbsslaw.com leonard@hbsslaw.com HAUSFELD LLP Michael P. Lehmann (Cal. Bar No. 77152) Arthur N. Bailey, Jr. (Cal. Bar No. 248460) 44 Montgomery St., 34th Floor San Francisco, CA 94104 Telephone: (415) 633-1908 Facsimile: (415) 358-4980 Email: mlehmann@hausfeldllp.com abailey@hausfeldllp.com [Additional Counsel Listed on Signature Page] 8 9 10 11 Counsel for Plaintiffs 14 15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 16 17 18 19 20 21 22 23 24 25 26 27 28 SAMUEL MICHAEL KELLER, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. ELECTRONIC ARTS, INC.; NATIONAL COLLEGIATE ATHLETICS ASSOCIATION; COLLEGIATE LICENSING COMPANY, Defendants. EDWARD O’BANNON, et al., Plaintiffs, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION; COLLEGIATE LICENSING COMPANY; and ELECTRONIC ARTS INC., Defendants. Case No. 4:09-cv-1967 CW JOINT FILING OF AMENDED SETTLEMENT AGREEMENTS AND EXHIBITS THERETO Judge: Hon. Claudia Wilken Courtroom: 2, 4th Floor Complaint Filed: May 5, 2009 Case No. 09-cv-3329 CW         This filing is submitted jointly by the Right of Publicity Plaintiffs (“ROP Plaintiffs”),1 1 2 Antitrust Plaintiffs,2 Ryan Hart, Electronic Arts Inc. (“EA”), and the National Collegiate Athletic 3 Association (“NCAA”) (collectively, “the Parties”), pursuant to the Court’s request. I. 4 BACKGROUND After reaching agreement on a proposed class action settlement, the ROP Plaintiffs, 5 6 Antitrust Plaintiffs, EA, and Ryan Hart filed their proposed settlement papers with the Court on 7 May 30, 2014. (Keller Dkt. 1108.) Likewise, after reaching agreement on a proposed class action 8 settlement, the ROP Plaintiffs and the NCAA filed their proposed settlement papers with the Court 9 on June 30, 2014. (Keller Dkt. 1138.) On July 3, 2014, the Court held a telephonic status conference and provided comments on 10 11 the Parties’ proposed class notices and claim form. The Court requested that the Parties submit 12 revised settlement papers, and rescheduled the Preliminary Approval Hearing for both Settlements 13 to July 24, 2014, at 2:00 p.m. In an effort to address the Court’s comments3 and to harmonize the 14 provisions of their respective settlements in order to streamline the class notice and claims process, 15 the Parties have revised their settlement papers, and attach hereto the exhibits listed below in 16 Section III.4 In addition to the attached exhibits, Class Counsel will, by July 23, 2014, be 17                                                              1 18 2 19 20 21 3 22 23 24 25 26 27 28 4 The ROP Plaintiffs are: Samuel Michael Keller, Bryan Cummings, LaMarr Watkins, Bryon Bishop, Shawne Alston, and Ryan Hart. The Antitrust Plaintiffs are: Edward C. O’Bannon Jr., Oscar Robertson, William Russell, Harry Flournoy, Alex Gilbert, Sam Jacobson, Thad Jaracz, David Lattin, Patrick Maynor, Tyrone Prothro, Damien Rhodes, Eric Riley, Bob Tallent, Danny Wimprine, Ray Ellis, Tate George, Jake Fischer, Jake Smith, Darius Robinson, Moses Alipate and Chase Garnham. During the status conference, the Court commented regarding the proposed “appeal” process by which claimants may contest their claims decisions (see Paragraph 62(g) of the NCAA Settlement Agreement (Ex. 2) and Paragraph 76(g) of the EA Settlement Agreement (Ex. 1)).The Parties wish to clarify that the appeal process does not provide for automatic appeals to the Court. Instead, claimants are required to submit an appeal initially to the Notice and Claims Administrator, who, working with Class Counsel, will use its best efforts to reach a resolution with the objecting claimant. Only if a resolution cannot be reached may the claimant (if he chooses) appeal that decision to the Court. Furthermore, the Court may, in its sole discretion, refer the appeal to a Magistrate Judge, special master, or other person. In addition, pursuant to Federal Rule of Civil Procedure 23(e)(3), the NCAA informs the Court of a confidential agreement between the NCAA, EA, and CLC (described in Paragraph 49 of the NCAA Settlement Agreement). At the Court’s request, the NCAA will provide a copy of that agreement for the Court’s in camera review. 1 JOINT FILING OF AMENDED SETTLEMENT AGREEMENTS AND EXHIBITS THERETO 09-cv-1967 CW / 09-cv-3329 CW     1 submitting a supplement to the motions and memoranda in support of preliminary approval of the 2 settlements. 3 As the Court is aware, on July 11, 2014, the Court granted the joint motion of EA and the 4 ROP Plaintiffs for an order for an indicative ruling under FRCP 62.1 so that the parties could 5 request a limited remand from the Ninth Circuit. (Dkt. 1152.) On July 16, 2014, EA and the ROP 6 Plaintiffs alerted the Ninth Circuit of the Court’s Order and request a limited remand for the 7 purposes of considering the settlement. As of the date and time of this filing, the Ninth Circuit has 8 not acted upon the parties’ request. 9 10 II. OUTSTANDING DISPUTE Despite the Parties’ best efforts, they were unable to agree on the exact language of the 11 Notices. The Parties agree to the plan of notice, but disagree about a sentence in the Notices, as 12 related to the O’Bannon trial. The Parties propose two alternative statements, because the NCAA 13 and ROP Plaintiffs do not agree with Antitrust Plaintiffs’ position that the NCAA settlement does 14 not affect the injunctive relief claims of the Antitrust Class. The two alternatives are: 15 16 17 18 19 20 Alternative 1 [proposed by ROP Plaintiffs and the NCAA]: You may have heard recently about a trial in a case by student-athletes (led by Edward O’Bannon) against the NCAA. Although the trial involved claims that the NCAA used student-athlete likenesses without permission, those claims were against the NCAA only for violations of antitrust laws. Also unlike the claims being resolved by this settlement, the claims in the trial did not involve claims for cash payments. Alternative 2 [proposed by Antitrust Plaintiffs]: 21 22 23 24 25 26 You may have heard recently about a class-action trial involving studentathletes (led by Ed O’Bannon) against the NCAA. Although the trial involved claims that the NCAA used student-athlete likenesses without permission, those claims were against the NCAA only, for violations of antitrust laws. Additionally, that trial concerned a request for injunctive relief (a court order discontinuing certain practices)—not cash payments for past conduct. The “EA Videogame Settlement” and the “NCAA Videogame Settlement” do not affect the injunctive claims recently tried in the O’Bannon v. NCAA case. 27 28 2 JOINT FILING OF AMENDED SETTLEMENT AGREEMENTS AND EXHIBITS THERETO 09-cv-1967 CW / 09-cv-3329 CW     1 Antitrust Plaintiffs’ Position: 2 Antitrust Plaintiffs intend to submit a short statement to the Court detailing their position that 3 the release contained in the NCAA Videogame settlement cannot release or otherwise affect the 4 injunctive claims encompassed by the O’Bannon trial. The two alternatives differ substantively 5 only in the final sentence of Alternative 2. The Antitrust Plaintiffs propose the following as the 6 final sentence: 7 8 9 10 The EA Videogame Settlement” and the “NCAA Videogame Settlement” do not affect the injunctive claims recently tried in the O’Bannon v. NCAA case. ROP Plaintiffs’ Position: The ROP Plaintiffs believe this statement is not correct in that the release may affect the 11 injunctive claims recently tried in the O’Bannon v. NCAA case to the extent they relate to 12 videogames manufactured and distributed by Defendants Electronic Arts. The ROP Plaintiffs 13 believe that the release should not affect any prospective injunction issued by this Court, but cannot 14 agree to the statement set forth by the Antitrust Plaintiffs, and therefore believe that the first 15 alternative paragraph is the proper statement to send to class members. 16 17 This same language and dispute about the scope of the release contained in the NCAA Videogame Settlement is noted in the proposed Joint Notices. 18 NCAA’s Position: 19 The NCAA agrees with the ROP Plaintiffs that the language proposed by the Antitrust 20 Plaintiffs is not correct. A settlement can affect pending claims, and before the start of the 21 O’Bannon trial, the NCAA settled and resolved all EA Videogame claims with the lead counsel 22 appointed to oversee the development and resolution of those claims in In re NCAA Student-Athlete 23 Name & Likeness Licensing Litigation. The NCAA settled in order to achieve resolution of all 24 claims relating to the alleged use of student-athletes’ names, images, and likenesses in EA 25 Videogames. The Antitrust Plaintiffs presented evidence relating to EA Videogames in the 26 O’Bannon trial, but their choice to present this evidence does not negate the NCAA’s settlement of 27 EA Videogame claims. A class settlement can compromise and release all claims relating to a 28 3 JOINT FILING OF AMENDED SETTLEMENT AGREEMENTS AND EXHIBITS THERETO 09-cv-1967 CW / 09-cv-3329 CW     1 particular subject—here, collegiate-themed videogames. The NCAA agrees that the Court has 2 jurisdiction over these matters. 3 To the extent the Court determines that additional information about the O’Bannon trial is 4 required for the Notices, the NCAA proposes the following as an alternative to the Antitrust 5 Plaintiffs’ proposal, to be inserted at the end of Alternative 1: 6 7 8 9 10 The NCAA believes that the O’Bannon antitrust injunction claims are covered by the NCAA Videogame Settlement. The O’Bannon Plaintiffs believe that they are not. The Parties agree that the Court has the authority to decide these issues. III. LIST OF EXHIBITS Below is a list of the exhibits attached hereto, which represent the revised Joint Notices and 11 claim form requested by the Court, together with the Parties’ amended settlement agreements. 12 Ex. 1 – Amended EA Settlement Agreement, including the following exhibits: 13 Ex. A – Proposed EA Preliminary Approval Order [AMENDED] 14 Ex. B – Draft Mailed Notice (with disputed language highlighted) [AMENDED] Ex. C – Draft Published Notice (with disputed language highlighted) [AMENDED] 15 16 17 Ex. D – Draft Claim Form [AMENDED] Ex. E – Fourth Consolidated Amended Class Action Complaint [SAME AS ORIGINAL FILING] 18 Ex. F – Alston Consent Order & Stip. To Stay Proceeding and Request for Voluntary Dismissal [SAME AS ORIGINAL FILING] 19 Ex. G – Hart Consent Order & Stip. To Stay Proceeding and Request for Voluntary Dismissal [SAME AS ORIGINAL FILING] 20 Ex. 2 – Amended NCAA Settlement Agreement, including the following exhibits: 21 Ex. A – Proposed NCAA Preliminary Approval Order [AMENDED] 22 Ex. B – Draft Mailed Notice [AMENDED] 23 Ex. C – Draft Published Notice [AMENDED] 24 Ex. D – Draft Claim Form [AMENDED] 25 Ex. 3 – JOINT Amended Draft Mailed Notice (with disputed language highlighted) 26 Ex. 4 – JOINT Amended Draft Published Notice (with disputed language highlighted) 27 Ex. 5 – JOINT Amended Draft Claim Form (approved by all Parties) 28 4 JOINT FILING OF AMENDED SETTLEMENT AGREEMENTS AND EXHIBITS THERETO 09-cv-1967 CW / 09-cv-3329 CW     1 Dated: July 23, 2014 HAGENS BERMAN SOBOL Shapiro LLP 2 By /s/ Robert B. Carey Robert B. Carey (Pro Hac Vice) Leonard W. Aragon (Pro Hac Vice) 11 West Jefferson Street, Suite 1000 Phoenix, Arizona 85003 Tel: (602) 840-5900 Fax: (602) 840-3012 rob@hbsslaw.com leonard@hbsslaw.com 3 4 5 6 7 Steve Berman (Pro Hac Vice) HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, Washington 98101 Tel: (206) 623-7292 Fax: (206) 623-0594 steve@hbsslaw.com 8 9 10 11 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 Tel: (202) 626-4486 Fax: (866) 734-0622 stuart@smplegal.com cboyd@smplegal.com 12 13 14 15 16 Attorneys for Keller Named Plaintiffs 17 18 Dated: July 23, 2014 SCHIFF HARDIN LLP 19 By /s/ Gregory L. Curtner Gregory L. Curtner (Pro Hac Vice) 350 Main Street, Suite 210 Ann Arbor, Michigan 48104 Tel: (734) 222-1500 Fax: (734) 222-1501 gcurtner@schiffhardin.com 20 21 22 23 Glenn D. Pomerantz (112503) MUNGER, TOLLES, & OLSON LLP 560 Mission Street, Twenty-Seventh Floor San Francisco, California 94105 Tel: (415) 512-4000 Fax: (415) 512-4077 glenn.pomerantz@mto.com 24 25 26 27 Attorneys for Defendant National Collegiate Athletic Association 28 5 JOINT FILING OF AMENDED SETTLEMENT AGREEMENTS AND EXHIBITS THERETO 09-cv-1967 CW / 09-cv-3329 CW     1 Dated: July 23, 2014 HAUSFELD LLP /s/ Michael P. Lehmann Michael P. Lehmann (Cal. Bar No. 77152) 44 Montgomery Street, 34th Floor San Francisco, CA 94104 Tel: (415) 633-1908 Fax: (415) 358-4980 mlehmann@hausfeldllp.com 2 3 4 5 Michael D. Hausfeld (pro hac vice) HAUSFELD LLP 1700 K Street, NW, Suite 650 Washington, DC 20006 Tel: (202) 540-7200 Fax: (202) 540-7201 mhausfeld@hausfeldllp.com 6 7 8 9 Plaintiffs’ Interim Co-Lead Class Counsel with Primary Responsibility for the Antitrust Claims 10 11 KEKER & VAN NEST LLP 12 16 /s/ R. James Slaughter Robert A. Van Nest R. James Slaughter 633 Battery Street San Francisco, CA 94111 Tel: (415) 391-5400 Fax: (415) 397-7188 rslaughter@kvn.com 17 Attorneys for Defendant Electronic Arts Inc. 13 14 15 18 Dated: July 23, 2014 THE MCKENNA LAW FIRM, LLC 19 /s/ Keith McKenna Keith McKenna 96 Park Street Montclair, New Jersey 07042 Tel: (973) 509-0050 Fax: (973) 509-3580 keith.mckenna@mcklaw.net 20 21 22 23 Dennis J. Drasco, Esq. Arthur M. Owens, Esq. LUM, DRASCO & POSITAN LLC 103 Eisenhower Pkway Roseland, New Jersey 07068 Tel: (973) 403-9000 Fax: (973) 403-9021 ddrasco@lumlaw.com aowens@lumlaw.com 24 25 26 27 28 Attorneys for Plaintiff Hart 6 JOINT FILING OF AMENDED SETTLEMENT AGREEMENTS AND EXHIBITS THERETO 09-cv-1967 CW / 09-cv-3329 CW     CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I hereby certify that on July 24, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses registered, and I hereby certify that I have mailed the foregoing document or paper via the United States Postal Service to the following non-CM/ECF participants: Arthur N. Bailey ARTHUR N. BAILEY & ASSOCIATES 111 West Second Street, Suite 4500 Jamestown, NY 14701 Thomas Kay Boardman PEARSON SIMON, WARSHAW AND PENNY, LLP 44 Montgomery St., Suite 2450 San Francisco, CA 94104 David P. Borovsky LONG & LEVITT LLP 465 California Street, Ste. 500 San Francisco, CA 94104 Stanley M. Chesley WAITE SCHNEIDER BAYLESS & CHESLEY 1513 Fourth & Vine Tower 1 West Fourth Street Cincinnati, Ohio 45202 Austin B. Cohen Howard J. Sedran LEVIN FISHBEIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Courtney Elizabeth Curtis GERSH | DERBY, LLP 15821 Ventura Boulevard, Suite 515 Encino, CA 91436 Dennis J. Drasco Arthur Owens LUM DANZIS DRASCO & POSITAN LLC 103 Eisenhower Parkway Roseland, NJ 07068 David A. Goodwin 608 Second Avenue South Minneapolis, MN 55402 Keith McKenna THE MCKENNA LAW FIRM LLC 96 Park Street Montclair, NJ 07042 Nathan M. Rehn MUNGER TOLLER & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105-2907 Hilary K. Scherrer HAUSFELD LLP 1700 K Street, N.W., Suite 650 Washington, D.C. 20006 Joe Sibley CAMARA & SIBLEY LLP 2339 University Boulevard Houston, Texas 77005 Jack Simms BOIES SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, N.W., Suite 800 Washington, DC 20015 Jeremy S. Spiegel WEINSTEIN KITCHENOFF & ASHER LLC 1845 Walnut Street, Suite 1100 Philadelphia, PA 19103 Sara M. Vanderhoff KILPATRICK STOCKTON LLP 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309 /s/ Robert B. Carey ROBERT B. CAREY 26 27 28 7 JOINT FILING OF AMENDED SETTLEMENT AGREEMENTS AND EXHIBITS THERETO 09-cv-1967 CW / 09-cv-3329 CW

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