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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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: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant National Collegiate
Athletic Association

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KEKER & VAN NEST LLP
Robert A. Van Nest
R. James Slaughter
633 Battery Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendant Electronic Arts Inc.

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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: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
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: [phone]
Email: [e-mail]
[e-mail]

[Additional Counsel Listed on Signature Page]

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Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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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

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Antitrust Plaintiffs,2 Ryan Hart, Electronic Arts Inc. (“EA”), and the National Collegiate Athletic

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Association (“NCAA”) (collectively, “the Parties”), pursuant to the Court’s request.
I.

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BACKGROUND

After reaching agreement on a proposed class action settlement, the ROP Plaintiffs,

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Antitrust Plaintiffs, EA, and Ryan Hart filed their proposed settlement papers with the Court on

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May 30, 2014. (Keller Dkt. 1108.) Likewise, after reaching agreement on a proposed class action

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settlement, the ROP Plaintiffs and the NCAA filed their proposed settlement papers with the Court

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on June 30, 2014. (Keller Dkt. 1138.)
On July 3, 2014, the Court held a telephonic status conference and provided comments on

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the Parties’ proposed class notices and claim form. The Court requested that the Parties submit

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revised settlement papers, and rescheduled the Preliminary Approval Hearing for both Settlements

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to July 24, 2014, at 2:00 p.m. In an effort to address the Court’s comments3 and to harmonize the

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provisions of their respective settlements in order to streamline the class notice and claims process,

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the Parties have revised their settlement papers, and attach hereto the exhibits listed below in

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Section III.4 In addition to the attached exhibits, Class Counsel will, by July 23, 2014, be

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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.
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submitting a supplement to the motions and memoranda in support of preliminary approval of the

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settlements.

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As the Court is aware, on July 11, 2014, the Court granted the joint motion of EA and the

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ROP Plaintiffs for an order for an indicative ruling under FRCP 62.1 so that the parties could

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request a limited remand from the Ninth Circuit. (Dkt. 1152.) On July 16, 2014, EA and the ROP

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Plaintiffs alerted the Ninth Circuit of the Court’s Order and request a limited remand for the

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purposes of considering the settlement. As of the date and time of this filing, the Ninth Circuit has

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not acted upon the parties’ request.

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II.

OUTSTANDING DISPUTE

Despite the Parties’ best efforts, they were unable to agree on the exact language of the

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Notices. The Parties agree to the plan of notice, but disagree about a sentence in the Notices, as

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related to the O’Bannon trial. The Parties propose two alternative statements, because the NCAA

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and ROP Plaintiffs do not agree with Antitrust Plaintiffs’ position that the NCAA settlement does

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not affect the injunctive relief claims of the Antitrust Class. The two alternatives are:

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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]:

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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.

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Antitrust Plaintiffs’ Position:

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Antitrust Plaintiffs intend to submit a short statement to the Court detailing their position that

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the release contained in the NCAA Videogame settlement cannot release or otherwise affect the

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injunctive claims encompassed by the O’Bannon trial. The two alternatives differ substantively

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only in the final sentence of Alternative 2. The Antitrust Plaintiffs propose the following as the

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final sentence:

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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

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injunctive claims recently tried in the O’Bannon v. NCAA case to the extent they relate to

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videogames manufactured and distributed by Defendants Electronic Arts. The ROP Plaintiffs

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believe that the release should not affect any prospective injunction issued by this Court, but cannot

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agree to the statement set forth by the Antitrust Plaintiffs, and therefore believe that the first

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alternative paragraph is the proper statement to send to class members.

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This same language and dispute about the scope of the release contained in the NCAA
Videogame Settlement is noted in the proposed Joint Notices.

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NCAA’s Position:

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The NCAA agrees with the ROP Plaintiffs that the language proposed by the Antitrust

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Plaintiffs is not correct. A settlement can affect pending claims, and before the start of the

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O’Bannon trial, the NCAA settled and resolved all EA Videogame claims with the lead counsel

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appointed to oversee the development and resolution of those claims in In re NCAA Student-Athlete

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Name & Likeness Licensing Litigation. The NCAA settled in order to achieve resolution of all

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claims relating to the alleged use of student-athletes’ names, images, and likenesses in EA

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Videogames. The Antitrust Plaintiffs presented evidence relating to EA Videogames in the

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O’Bannon trial, but their choice to present this evidence does not negate the NCAA’s settlement of

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EA Videogame claims. A class settlement can compromise and release all claims relating to a

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particular subject—here, collegiate-themed videogames. The NCAA agrees that the Court has

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jurisdiction over these matters.

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To the extent the Court determines that additional information about the O’Bannon trial is

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required for the Notices, the NCAA proposes the following as an alternative to the Antitrust

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Plaintiffs’ proposal, to be inserted at the end of Alternative 1:

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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

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claim form requested by the Court, together with the Parties’ amended settlement agreements.

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Ex. 1 – Amended EA Settlement Agreement, including the following exhibits:

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Ex. A – Proposed EA Preliminary Approval Order [AMENDED]

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Ex. B – Draft Mailed Notice (with disputed language highlighted) [AMENDED]
Ex. C – Draft Published Notice (with disputed language highlighted) [AMENDED]

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Ex. D – Draft Claim Form [AMENDED]
Ex. E – Fourth Consolidated Amended Class Action Complaint
[SAME AS ORIGINAL FILING]

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Ex. F – Alston Consent Order & Stip. To Stay Proceeding and Request for Voluntary
Dismissal [SAME AS ORIGINAL FILING]

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Ex. G – Hart Consent Order & Stip. To Stay Proceeding and Request for Voluntary
Dismissal [SAME AS ORIGINAL FILING]

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Ex. 2 – Amended NCAA Settlement Agreement, including the following exhibits:
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Ex. A – Proposed NCAA Preliminary Approval Order [AMENDED]

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Ex. B – Draft Mailed Notice [AMENDED]

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Ex. C – Draft Published Notice [AMENDED]

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Ex. D – Draft Claim Form [AMENDED]

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Ex. 3 – JOINT Amended Draft Mailed Notice (with disputed language highlighted)

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Ex. 4 – JOINT Amended Draft Published Notice (with disputed language highlighted)

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Ex. 5 – JOINT Amended Draft Claim Form (approved by all Parties)

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Dated: July 23, 2014

HAGENS BERMAN SOBOL Shapiro LLP

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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: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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Steve Berman (Pro Hac Vice)
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, Washington 98101
Tel: [phone]
Fax: [phone]
[e-mail]

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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: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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Attorneys for Keller Named Plaintiffs

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Dated: July 23, 2014

SCHIFF HARDIN LLP

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By /s/ Gregory L. Curtner
Gregory L. Curtner (Pro Hac Vice)
350 Main Street, Suite 210
Ann Arbor, Michigan 48104
Tel: [phone]
Fax: [phone]
[e-mail]

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Glenn D. Pomerantz (112503)
MUNGER, TOLLES, & OLSON LLP
560 Mission Street, Twenty-Seventh Floor
San Francisco, California 94105
Tel: [phone]
Fax: [phone]
[e-mail]

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Attorneys for Defendant National Collegiate
Athletic Association

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JOINT FILING OF AMENDED SETTLEMENT AGREEMENTS AND EXHIBITS THERETO

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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: [phone]
Fax: [phone]
[e-mail]

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Michael D. Hausfeld (pro hac vice)
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, DC 20006
Tel: [phone]
Fax: [phone]
[e-mail]

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Plaintiffs’ Interim Co-Lead Class Counsel with
Primary Responsibility for the Antitrust Claims

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KEKER & VAN NEST LLP

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/s/ R. James Slaughter
Robert A. Van Nest
R. James Slaughter
633 Battery Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]

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Attorneys for Defendant Electronic Arts Inc.

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Dated: July 23, 2014

THE MCKENNA LAW FIRM, LLC

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/s/ Keith McKenna
Keith McKenna
96 Park Street
Montclair, New Jersey 07042
Tel: [phone]
Fax: [phone]
[e-mail]

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Dennis J. Drasco, Esq.
Arthur M. Owens, Esq.
LUM, DRASCO & POSITAN LLC
103 Eisenhower Pkway
Roseland, New Jersey 07068
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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Attorneys for Plaintiff Hart
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CERTIFICATE OF SERVICE

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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

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