Specific Reasons for Marshall, Senser, Pastorini Objections to Proposed Dryer vs NFL Films...

7/27/2019 Specific Reasons for Marshall, Senser, Pastorini Objections to Proposed Dryer vs NFL Films Settlement Offer

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UNITED STATES DISTRICT COURTDISTRICT OF MINNESOTA

John Frederick Dryer, James LawrenceMarshall, Joseph Michael Senser, ElvinLamont Bethea, Dante AnthonyPastorini, Edward Alvin White, FredBarnett, Tracy Simien, DarrellAlexander Thompson, Lemuel JosephBarney, James Nathaniel Brown, MarkGregory Clayton, Irvin Acie Cross,Brian Duncan, Billy Joe Dupree,Michael James Haynes, Paul James

Krause, Bruce Allan Laird, ReginaldMcKenzie, Preston Pearson, ReginaldJoseph Rucker, Jackie Larue Smith, andJim Ray Smith, on behalf of themselvesand all others similarly situated,

Plaintiffs,

v.

National Football League,

Defendant.

Civil No. 09-2182 (PAM/AJB)

SPECIFIC REASONS FOROBJECTION TO THE FAIRNESS,REASONABLENESS, ANDADEQUACY OF THE PROPOSEDSETTLEMENT BY PLAINTIFFS

JAMES LAWRENCE MARSHALL,JOSEPH MICHAEL SENSER,AND DANTE ANTHONYPASTORINI

CASE 0:09-cv-02182-PAM-AJB Document 327-1 Filed 08/21/13 Page 1 of 46


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TABLE OF CONTENTS

Page

INTRODUCTION ............................................................................................................. 1

FACTUAL BACKGROUND ........................................................................................... 2

ARGUMENT ..................................................................................................................... 7

I. The Settlement Is Unfair Because It Does Not Provide Certainty that

Any Class Member Will Receive an Economic Benefit. ..................................... 8

A. The Proposed Settlement Distributes All Funds to Third Parties. .......... 9

B. The Facts Do Not Justify a Distribution of Settlement Funds Onlyto Third Parties. ............................................................................................. 10

C. The Settlement Will Impose Unfair Disparate Treatment On Class

Members. ........................................................................................................ 16

D. The Licensing Agency Does Not Guarantee Compensation to

Class Members. ............................................................................................. 17

II. Complicating Factors Emphasize that the Settlement Is Unfair. .................... 20

A. The Court Should Deny Approval Because Damages Discovery

Has Not Occurred. ........................................................................................ 21

B. Lead Settlement Counsel Has Not Satisfied His Duty to Evaluate

the Value of the Released Claims. .............................................................. 25

III. The Class Members Claims Have Value. .......................................................... 27

A. The NFL Has Violated Class Members Rights. ....................................... 27

B. The Alleged Litigation Challenges Identified by the Settling

Parties and the Court Do Not Alleviate Their Burden to

Demonstrate that the Settlement Is Fair. ................................................... 29



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TABLE OF AUTHORITIES

Page

Cases

Alexander v. National Football League,No. 4-76-Civil-123, 1977 U.S. Dist. LEXIS 14685 (D. Minn. 1977) ........................ 24

Allstate Ins. Co. v. Hague,449 U.S. 302 (1981) ...................................................................................................... 32

Amchem Prods., Inc. v. Windsor,521 U.S. 591 (1997) ...................................................................................................... 30

Beattie v. CenturyTel, Inc.,511 F.3d 554 (6th Cir. 2007) ........................................................................................ 36

Buchet v. ITT Consumer Fin. Corp.,845 F. Supp. 684 (D. Minn. 1994) ................................................................................ 7

City of Detroit v. Grinnell Corp.,495 F.2d 448 (2d Cir. 1974) ......................................................................................... 24

Comcast Corp. v. Behrend,133 S. Ct. 1426, 1437 (2013) (dissent) ........................................................................ 36

Contreras v. PM Beef Holdings, LLC,No. 07-CV-3087, 2008 U.S. Dist. LEXIS 73800 (D. Minn. Sept. 18, 2008) ............ 24

Cox v. Zurn Pex, Inc. (In re Zurn Pex Plumbing Prods. Liab. Litig.),644 F.3d 604 (8th Cir. 2011) .................................................................................. 31, 32

Ferrington v. McAfee, Inc.,No.: 10-CV-01455-LHK, 2012 U.S. Dist. LEXIS 49160 (N.D. Cal. Apr. 6,2012) ........................................................................................................................ 16, 17

Free v. Abbott Labs.,953 F. Supp. 751 (M.D. La. 1997) ............................................................. 24, 25, 26, 29

Grunin v. Intl House of Pancakes,513 F.2d 114 (8th Cir. 1975) .......................................................................................... 7



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Hosch v. Levings,2009 Minn. App. Unpub. LEXIS 1155 (Minn. Ct. App. Oct. 27, 2009) ................ 34

In re Airline Ticket Commn Antitrust Litig.,268 F.3d 619 (8th Cir. 2001) .................................................................................. 11, 13

In re Airline Ticket Commn Antitrust Litig.,307 F.3d 679 (8th Cir. 2002) .................................................................................. 11, 13

In re Baby Prods. Antitrust Litig.,708 F.3d 163 (3d Cir. 2013) ............................................................................. 13, 14, 15

In re Classmates.com Consolidated Litig.,No. C09-45RAJ, 2011 U.S. Dist. LEXIS 17761 (W.D. Wash. Feb. 22, 2011).... 13, 15

In re General Motors Corp. Pick-Up Truck Fuel Tank,55 F.3d 768 (3d Cir. 1995) ................................................................................. 7, 16, 21

In re Groupon, Inc.,No. 11md2238 DMS (RBB), 2012 U.S. Dist. LEXIS 185750 (S.D. Cal. Sept.28, 2012) ........................................................................................................................ 12

In re Pet Food Prods. Liab. Litig.,629 F.3d 333 (3d Cir. 2010) ......................................................................................... 25

In re Pharm. Indus. Average Wholesale Price Litig.,588 F.3d 24 (1st Cir. 2009) .......................................................................................... 13

In re Thornburg Mortg., Inc. Secs. Litig.,885 F. Supp. 2d 1097 (D.N.M. 2012) ................................................................... 13, 15

In re Wireless Tel. Fed. Cost Recovery Fees Litig.,396 F.3d 922 (8th Cir. 2005) .......................................................................................... 7

Jepson v. Gen. Casualty of Wis.,

513 N.W.2d 467 (Minn. 2000) .................................................................................... 34

Klier v. Elf Atochem N. Am., Inc.,658 F.3d 468 (5th Cir. 2011) ...................................................................... 11, 13, 14, 15

Mars Steel Corp. v. Continental Ill. Natl Bank and Trust Co. of Chicago,834 F.2d 677 (7th Cir. 1987) .......................................................................................... 7



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Masters v. UHS of Del., Inc.631 F.3d 464 (8th Cir. 2011) ........................................................................................ 22

McFarland v. Miller,14 F.3d 912 (3d Cir. 1994) ........................................................................................... 27

Mirfasihi v. Fleet Mortg. Corp.,356 F.3d 781 (7th Cir. 2004) ........................................................................................ 17

Nielson v. The Sports Authority,No: C 11-4724 SBA, 2012 U.S. Dist. LEXIS 168226 (Nov. 27, 2012) ...................... 24

Palmer v. Schonhorn Eters.,232 A.2d 458 (N.J. Super. Ct. Ch. Div. 1967) ........................................................... 27

Phillips Petroleum Co. v. Shutts,472 U.S. 797,(1985) ...................................................................................................... 11

Powell v. Georgia-Pacific Corp.,119 F.3d 703 (8th Cir. 1997) .................................................................................. 11, 12

Richie v. Paramount Pictures Corp.,532 N.W.2d 235 (Minn. Ct. App. 1995)(reversed on other grounds)........................................................................................... 33

Schumacher v. Schumacher,676 N.W.2d 685 (Minn. Ct. App. 2004) .................................................................... 33

Six Mexican Workers v. Arizona Citrus Growers,904 F.2d 1301 (9th Cir. 1990) ................................................................................ 13, 15

Sobel v. The Hertz Corp.,3:06-CV-00545-LRH-RAM, 2011 U.S. Dist. LEXIS 68984 (D. Nev. June 27,2011) ........................................................................................................................ 22, 23

Van Horn v. Trickey,840 F.2d 604 (8th Cir. 1988) .................................................................................... 7, 30

Welsch v. Gardebring,667 F. Supp. 1284 (D. Minn. 1987) ............................................................................ 21



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Whitney v. Guys, Inc.,700 F.3d 1118 (8th Cir. 2012) ...................................................................................... 32

Statutes

28 U.S.C. 2072 ............................................................................................................... 14

28 U.S.C. 2072(b) .......................................................................................................... 14

Rules

Fed. R. Civ. P. 23 ....................................................................................................... 14, 31

Fed. R. Civ. P. 23(a) ......................................................................................................... 30

Fed. R. Civ. P. 23(b) ........................................................................................................ 30

Fed. R. Civ. P. 23(b)(3) .............................................................................................. 30, 31

Fed. R. Civ. P. 23(c)(4)-(5) .............................................................................................. 36

Fed. R. Civ. P. 23(e) ........................................................................................................... 7

Treatises

Am. Law Inst., Principles of the Law of Aggregate Litigation 3.07 (2010) ... 11, 12

Annotated Manual for Complex Litigation (Fourth) 21.61 (2008).......................... 7

J.Thomas Mccarthy, THE RIGHTS OF PUBLICITY AND PRIVACY (2013) .......... 22, 27, 37

M. Redish et al., Cy Pres Relief & The Pathologies of the Modern Class Action,62 FLA.L.REV. (2010) .................................................................................................. 14

Moores Federal Practice 23.161 (2013) ..................................................................... 30

Restatement (Second) of Torts 652C (1977).............................................................. 27

Restatement Third, Unfair Competition 49 (1995) .................................................. 22

Wright, Miller & Kane, Federal Practice & Procedure: Civil 3d 1797.1(2005) ............................................................................................................................... 8



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INTRODUCTION

The proposed settlement does not guarantee that any class member will

receive any economic benefit in any form. For that reason, it is unfair. The riskthat class members will receive nothing has not even been communicated to the

class. The Court should exercise its duty to protect the silent class members and

deny final approval.

Neither the Common Good Fund nor the Licensing Agency guarantees any

economic benefit to any retired player. Those organizations cannot promise

anything more than a speculative hope that some class members might benefit

from this settlement. The NFL, on the other hand, receives a solid guarantee:

class members release all their past and future claims to payment for the NFLs

use of their likenesses to promote NFL footballa complete release for the use of

its game footage library.

The Court should not approve giving settlement funds to a third partythe

Common Good Entityfor further distribution to other third-party charities

with only a hope that an economic benefit will trickle down to class members.

This daisy-chain of third-party payments does not protect the silent class

members or ensure they receive compensation for their claims. Nor does it

ensure that any class member will receive anything. But it does effectively

guarantee that at least part of the class will get nothing.

All class members should receive compensation for giving up their claims.

They should have the opportunity to find out what those claims might be worth.

Instead, they have been told they should accept an unfair deal because their case

has risks. All lawsuits have risks, but the risks must be balanced against the



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potential value of the released claims. Lead Settlement Counsel, however, has

refused to answer class members requests for information about the value of

their claims. Risks alone do not justify releasing the class members claims for

potentially nothing in return.

Plaintiffs Jim Marshall, Joe Senser, and Dan Pastorini (the Objecting

Plaintiffs) respectfully request that the Court deny final approval to this unfair

settlement, and hereby set forth the specific reasons for their objection pursuant

to the Courts Preliminary Approval Order. Dkt. #270.

FACTUAL BACKGROUND

On March 18, 2013, several named plaintiffs (Settling Plaintiffs) submitted

a proposed settlement to the Court for approval. Dkt. #262. The six named

plaintiffs that initiated this lawsuit opposed preliminary approval of the

settlement. Dkt. #264; Dkt. #269. The Court granted preliminary approval,

certified a class at the Settling Plaintiffs request, and directed that notice be

provided to the class, defined as all retired players and their heirs. Dkt. #270. The

Court appointed Dan Gustafson as Lead Settlement Counsel. Id. at 7.

The settlement allocates up to $50 million among (1) a 501(c)(3) organization

called the Common Good Entity; (2) costs for establishing a Licensing Agency;

(3) attorneys fees; (4) settlement administration expenses; and (5) the NFLs fees

and costs for litigation with class members who exclude themselves from the

settlement class. Dkt. #262-1 at II.A.1; II.A.3; II.B.1; IV.F.1; IX. The NFL will

pay $42 million over eight years to the Common Good Entity, but if the NFL

incurs opt-out litigation expenses, it can withhold up to $13.5 million of the $42

million, leaving $28.5 million for the Common Good Entity. Id. at II.A.1-4.



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The Common Good Entity has authority to distribute settlement funds only

to other third-party organizations. Dkt. #262-1 at IV.F.5. If it does not

distribute all funds within ten years, remaining funds revert to the NFL. Id. at

IV.F.9. The Common Good Entity will be managed by a seven-member Board

of Directors that has discretion to disburse the funds to third-party charities for a

group of approved uses such as medical research, housing, insurance, medical

evaluations, mental health, wellness, and employment training. Id. at IV.F.5.(c).

The approved uses do not include compensation for the NFLs use of retired

players images and other publicity rights. The initial Board of Directors

approved by the Court consists of seven former NFL players. Dkt. #270 at 19-20.

The settlement does not guarantee that the funds received by the Common Good

Entity will reach any class member in the form of an economic benefit.

The settlement creates a Licensing Agency for licensing class members

publicity rights to third parties. Dkt. #262-1 at IV.A. The Licensing Agency

does not involve the NFLs use of class members publicity rights and will notgenerate compensation for such use. The Board of Directors appointed to

manage the Common Good Entity also will manage the Licensing Agency. Dkt.

#270 at 19-20.

The Licensing Agency does not have the authority under the settlement to

license NFL game footage to third parties. Dkt. #262-1 at III.C.4. It also does not

have the authority to license any NFL IP Rights, such as logos, to third parties

without the NFLs consent. Id. at IV.C.3.

Notwithstanding the above, in the event the Licensing Agency licenses any

of the class members publicity rights, the proceeds from those licenses will be



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divided between the Common Good Entity and the class members whose rights

are licensed. Dkt. #262-1 at IV.E.1. The settlement does not provide any

revenue projections or likelihood of success for the Licensing Agency. The

settlement does not ensure that the Licensing Agency will generate revenue or

have sufficient funding to remain in operation.

In sum, neither the Common Good Entity nor the Licensing Agency

guarantee that any class member will receive an economic benefit from the

settlement.

The settlement provides that class members release their claims against and

covenant not to sue the NFL or any third party authorized to use NFL game

footage (Released Parties). Dkt. #262-1 at I.E.43; III.A.1-3; III.C.4. The

release includes all past and future claims relating to the use of retired players

publicity rights to promote the NFL. Id. at III.A.1-3. The released publicity

rights include each players name, nickname, initials, likeness, image, picture,

photograph, animation, persona, autograph/signature, appearance, voice,personal or biographical information, or any other identifying or personal

characteristic. Id. at I.E.38; I.E.40; III.A.1-3. The release covers all such claims

in perpetuity. Id. at III.A.2. The settlement also includes a covenant that class

members will not contest the NFLs exclusive right to broadcast, license, or

otherwise disseminate NFL game footage. Id. at III.C.4. Thus, the release will

secure the NFLs ability to exploit its game footage library without challenge

from retired players. The settlement does not provide any information describing

the value of the released claims or the covenant not to sue.



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The release and covenant do not allow the NFL to use retired players

publicity rights in a way that constitutes an endorsement by those players of a

non-NFL brand, product, or service (such as a consumer product). Dkt. #262-1 at

III.A.2; III.C.4. Endorsement is not defined. Id. The settlement provides that

a third-party use of NFL game footage is not an endorsement if the use does

not unduly focus on, feature, or highlight a player in the footage and would

not lead a reasonable consumer to believe that a player is a spokesperson for

or promoter of the third-party brand, product or service. Id. at III.A.2.

Unduly, focus on, feature, highlight, reasonable consumer,

spokesperson, and promoter are not defined.

The settlement includes a fee-shifting provision for future disputes. Dkt.

#262-1 at III.D. The provision applies only in favor of the NFL; it does not

apply in favor of class members. Id. If a class member brings a claim against any

Released Party, and the Released Party prevails based on the Release or

Covenant, the class member must pay the Released Partys costs and expenses,including attorneys fees. Id. If the class member prevails, the fee-shifting

provision does not apply. Id. The provision has the effect of ensuring that retired

players will not contest the NFLs use of their images in the future. If a retired

player believes the NFL has violated the agreement, he is left with a Hobsons

choice: sue the NFL and lose and pay the NFLs fees; or sue the NFL and win but

pay his lawyers all their fees.

Damages discovery has not yet occurred. The Court deferred damages

discovery until completion of discovery on the named plaintiffs claims and class

certification. Dkt. #65 at 2. The NFL therefore refused to produce damages



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discovery. Dkt. #65 at 3. It also meticulously redacted its production to omit

reference to any financial information. Dkt. #167 at 26. The Court upheld the

NFLs redactions. Dkt. #168 at 2. Class members have not receivedand

Plaintiffs have not had the opportunity to discoverinformation evaluating the

potential value of the past and future claims released by the settlement.

After notice was provided to the class, counsel for the Objecting Plaintiffs

reached out to Lead Settlement Counsel to address concerns about risks of the

settlement and request information about the economics of the settlement. Letter

from M. Ciresi to D. Gustafson, June 6, 2013 (Ex. A).1 The letter requested

information demonstrating (1) certainty that class members would receive an

economic benefit; (2) potential revenue of the Licensing Agency; and (3) value of

the claims released by class members. Id. The letter also raised concerns that the

class had not received information about the risks of the settlement. Id. at 5.

In the next seven weeks, Lead Settlement Counsel did not respond. On

July 29, Objecting Plaintiffs counsel sent a follow-up letter to Lead SettlementCounsel confirming that he did not have the information requested in the June 6

letter. Letter from M. Ciresi to D. Gustafson, July 29, 2013 (Ex. B). Lead

Settlement Counsel responded on August 1, and again did not provide any of the

requested information. Letter from D. Gustafson to M. Ciresi, Aug. 1, 2013 (Ex.

C). He instead wrote I saw little purpose in offering a point-by-point rebuttal to

your first letter and see no reason to debate either of them now. Id. at 1. The

1 Citations to Ex. _ refer to Exhibits to the Declaration of Aaron R. Fahrenkrog,

submitted with this objection.



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demonstrate that the settlement meets this heightened level of scrutiny. See

Wright, Miller & Kane, Federal Practice & Procedure: Civil 3d 1797.1 (2005).

The Settling Plaintiffs cannot meet their burden. The proposed settlement is

unfair and inadequate:

1. There is no certainty that any class member will receive anyeconomic benefit from the settlement.

2. All settlement funds are distributed to third-party organizations.3. There is no claims process for class members to request their share

of the settlement proceeds.

4. The Settling Plaintiffs have provided no information about thevalue of the claims released by the class.

These inadequacies have not been communicated to the class. There is a

substantial risk that class members will remain in the settlement class, release all

past and future publicity rights claims against the NFL and its licensees, and get

nothing in return. The Objecting Plaintiffs respectfully request that the Court

protect the class by denying final approval.

I. The Settlement Is Unfair Because It Does Not Provide Certainty that AnyClass Member Will Receive an Economic Benefit.

The Court should not approve the settlement because it does not guarantee

that each identified class memberor indeed any class memberwill benefit.

This risk arises because the settlement distributes all proceedsafter fees and

costs are deductedto a third party, the Common Good Entity. The Common

Good Entity has discretion to distribute the proceeds for a variety of charitable

uses, but only to other third parties and not class members. If the Common Good

Entity fails to distribute the funds, the money goes back to the NFL. This



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distribution structure does not guarantee that any class member will receive a

benefit, and as a practical matter guarantees that some class members will not.

This is unfair to the class.

A. The Proposed Settlement Distributes All Funds to Third Parties.No class member will receive a payment directly from the settlement

proceeds. Instead, all payments from the fund will go to unknown third-party

organizations:

All settlement proceeds initially will go to a third party: the Common Good

Entity. The settlement allows the possibility that class members will never see

any of the proceeds. Instead, the proceeds may revert to the NFL or may be

distributed to charities that benefit only similarly situated individuals but not

class members. That is, non-class members likely will benefit while certain class

members will not. The defined list of charitable uses allowed by the settlement



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make it highly likely that many class membersthose who do not qualify for the

various charitieswill not receive a benefit.

The Common Good Entity is not a mere administrative vehicle for

distributing settlement funds to class members. It has no claims process. It has no

authority to distribute funds to class members. But it has discretion to choose

which charities will receive settlement funds. The Common Good Entity is a

charitable organization, not a settlement administrator. It does not provide any

assurance that class members with valid claims will receive compensation from

the settlement, in any form.

The Settling Plaintiffs own descriptions of the settlement highlight the

uncertainty and risks: The NFLs contributions to the Common Good Fund,

overseen by a Board with representatives from among the Class Members,

potentially will benefit all Retired Players who are eligible for the support from

the organizations supported by the Fund. Dkt. #261 at 8 (emphasis added). That

is, the contributions potentially will not benefit even those class members whoare eligible. Indeed, the eligible class members are not even afforded priority

from the organizations that will receive the funds. Class members who are not

eligible are guaranteed to receive nothing.

This settlementdistributed entirely through third parties although

nothing would prevent distribution of proceeds to the classis unprecedented.

It is unfair and should not be approved.

B. The Facts Do Not Justify a Distribution of Settlement Funds Only toThird Parties.

The Eighth Circuit has approved class settlement distributions to third

parties only for unclaimed funds to which no party has a legal right. In re



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Airline Ticket Commn Antitrust Litig., 307 F.3d 679, 680-83 (8th Cir. 2002) (Airline

II). Such unclaimed funds arise only from two circumstances: (1) where class

members are difficult to identify or change constantly; or (2) where funds remain

after distributions to the class members. In re Airline Ticket Commn Antitrust

Litig., 268 F.3d 619, 625 (8th Cir. 2001) (Airline I) (citing Powell v. Georgia-Pacific

Corp., 119 F.3d 703, 706-07 (8th Cir. 1997)). Where, as here, class members have

been identified, funds do not become unclaimed and subject to third-party

distribution until after compensating class members.Airline II, 307 F.3d at 680-81

(describing unclaimed funds as those remaining after compensating class

members).

The proposed settlement does not address unclaimed funds. The Settling

Parties seek to ignore that prerequisite for third-party distribution and instead

distribute all settlement funds to third parties without compensating class

members in exchange for releasing their claims. The Eighth Circuit has not

sanctioned this form of a class settlement, and its application of cy pres principlesindicate that it will not approve the settlement here.

Only unclaimed funds may be distributed to third parties because class

members have property rights in the settlement proceeds, as they represent

consideration for the release of the class members claims. Klier v. Elf Atochem N.

Am., Inc., 658 F.3d 468, 474 (5th Cir. 2011) (citing Phillips Petroleum Co. v. Shutts,

472 U.S. 797, 807-08, 812-13 (1985)).2 It is unfair to divest these rights without

compensation. Only when no party has a remaining legal right to settlement

2See also Am. Law Inst., Principles of the Law of Aggregate Litigation 3.07 cmt.

b (2010) ([F]unds generated through the aggregate prosecution of divisible

claims are presumptively the property of the class members . . . .).



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proceeds may they be distributed to a third party. See Powell v. Georgia-Pacific

Corp., 119 F.3d 703, 706-07 (8th Cir. 1997); In re Groupon, Inc., No. 11md2238 DMS

(RBB), 2012 U.S. Dist. LEXIS 185750, at *36-37 (S.D. Cal. Sept. 28, 2012) (denying

final approval of award that would distribute unclaimed settlement funds to

third parties rather than to class members).

Here, over 24,000 class members have been identified. Dkt. #262-2 at 4. The

Settling Plaintiffs cannot claim that distribution costs would exceed individual

awards. Class members have not been compensated for releasing their existing

and future claims. The Court should not approve this unfair arrangement.

The Court previously ruled that the settlement does not include a cy pres

distribution. Dkt. #270 at 4. The Objecting Plaintiffs respectfully disagree and

present their analysis of this issue again here to preserve their objection and

request that the Court reconsider its prior ruling. Whether or not the term

cy pres applies to the settlement, however, is not the critical issue. Regardless of

label, courts should not approve class settlements distributing all funds throughindependent third parties instead of compensating class members directly,

except where class members cannot be identified or administration costs exceed

individual awards. AM.LAW INST.,PRINCIPLES OF THE LAW OF AGGREGATE LITIG.,

3.07 (2010). Here, the funds are distributed to a third party for further

distribution only to other third parties. The policy underlying the consistent

rejection of cy pres settlement distributions demonstrates that the settlement

proposed here is unfair to the class.

Cy pres is a term used to describe a variety of class settlement

distributions. It describes situations in which settlement proceeds are distributed



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to a third party instead of class members, typically when identifiable class

members have been compensated and the Court must dispose of unclaimed

settlement funds. See, e.g.,Airline II, 307 F.3d at 682; In re Thornburg Mortg., Inc.

Secs. Litig., 885 F. Supp. 2d 1097, 1106-07, 1111 (D.N.M. 2012) (with cy pres, courts

distribute unclaimed portions of a class-action judgment or settlement funds to

a charity that will advance the interests of the class). Sometimes the Court

chooses the recipient; other times the recipient is directed by the settling parties

agreementboth situations have been labeled cy pres. Klier, 658 F.3d at 471; In re

Baby Prods. Antitrust Litig., 708 F.3d 163, 169 (3d Cir. 2013).

The term cy pres also applies when settling parties agree to distribute all

settlement proceeds to one or more third parties without compensating class

members. Such situations arise when (1) class members cannot be identified; or

(2) administration costs would exceed individual recoveries under the

settlement. In re Pharm. Indus. Average Wholesale Price Litig., 588 F.3d 24, 34 (1st

Cir. 2009); see also In re Classmates.com Consol. Litig., No. C09-45RAJ, 2011 U.S.Dist. LEXIS 17761, at *15 (W.D. Wash. Feb. 22, 2011); Six Mexican Workers v. Ariz.

Citrus Growers, 904 F.2d 1301, 1305 (9th Cir. 1990). Neither condition is present

here.

In all of these varieties, cy pres distributions have been criticized as

compared to direct distributions to class members.Airline I, 268 F.3d at 625.

Although cy pres has not been defined precisely, the policy underlying the label

has been consistent: class settlements that distribute funds to third parties

instead of class members should not be approved except in unusual

circumstances. Id. This treatment of third-party distributions protects class



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members from releasing their claims for a benefit that is at best attenuated and

at worse illusory. In re Baby Prods., 708 F.3d at 173.

Therefore, approving a distribution of class settlement funds to third parties

under Rule 23 would violate the Rules Enabling Act, 28 U.S.C. 2072, where the

funds could be distributed instead to the class members. Class members have a

right to the settlement funds as compensation for their underlying substantive

claims. See Klier, 658 F.3d at 474. The Rules Enabling Act does not allow settling

parties and the Court to create a remedy through Rule 23 that does not exist in

the underlying substantive law. See 28 U.S.C. 2072(b); M. Redish et al., Cy Pres

Relief & The Pathologies of the Modern Class Action, 62 FLA.L.REV.617, 644-48

(2010). The settlement here creates a new remedy by directing compensation

solely to the Common Good Entity and Licensing Agency, third parties that have

suffered no injury under the class members publicity rights claims and have no

standing in this lawsuit. This remedy would not be available through the class

members substantive claims, and the Rules Enabling Act prohibits its creationthrough the procedural vehicle of Rule 23, where class members could be

compensated directly.

The Settling Plaintiffs may be correct in their statement [n]o court ever has

applied the cy pres label to a settlement like this. Dkt. #268 at 2. But it may also

be correct that no court has confronted a settlement like this in which all

settlement funds must pass through multiple third party organizations before

any class member might enjoy their benefit, even though nothing prevents direct

distribution to the class. The proposed distribution through multiple third parties

does not change the cy pres nature of the settlement; instead, adding the



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Common Good Entity as an intermediary between the funds and charity merely

adds another level of administrative expense. See, e.g., Dkt. #262-1 at Ex. 6 3.16

(describing expense reimbursement); 4.04 (describing compensation of officers).

The Settling Plaintiffs have not identified a single case where a court has

approved a settlement like this in which all proceeds go first to third parties

although class members are identifiable and direct distributions would far

exceed administration costswhether or not the distribution is labeled cy pres.

For example, in In re Baby Prods. Antitrust Litig., 708 F.3d at 171-76, the court

vacated approval of a settlement because of questions about the fairness of

distributing $18 million to third parties while only distributing $3 million

directly to class members. In Six Mexican Workers, 904 F.2d at 1308-09, the court

set aside a distribution to a third party because there is no reasonable certainty

that any [class] member will be benefited. In Klier, 658 F.3d at 477-80, the court

set aside a third-party distribution, explaining that unused funds should have

been distributed directly to class members rather than to third parties. In In reClassmates.com Consolidated Litig., 2011 U.S. Dist. LEXIS 17761 at *13-15, the court

found that a third-party payment was not a meaningful settlement benefit where

class members could have been compensated directly. And in In re Thornburg

Mortg., Inc. Secs. Litig., 885 F. Supp. 2d at 1106-07, the court stated cy pres awards

are a bad idea and inappropriate and class actions are disputes between parties

and the money damages should remain among the parties, rather than be

distributed to some third party.

Here, the proposed settlements failure to directly compensate class

members is more egregious than the settlements rejected in the cases above. In



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those cases, class members received some settlement funds directly as individual

awards. Here, third partiesthe Common Good Entity, its recipient charities,

and the Licensing Agencywill receive all settlement funds remaining after

attorneys fees are paid. Class members will receive no direct payments from the

settlement fund. This settlement is not a uniquely creative vehicle for distributing

funds to the class; it is an unfair distribution to third parties that may result in

the class receiving nothing.

C. The Settlement Will Impose Unfair Disparate Treatment On ClassMembers.

If the settlement provides benefits to class members at all, it almost certainly

will provide disparate benefits to class members having identical claims. Some

class members might receive a benefit; other class members will receive nothing,

despite releasing identical past and future claims. This problem arises because

the charitable uses allowed by the settlement do not relate to the underlying

released publicity rights claims. The Settling Plaintiffs have acknowledged this

disparate treatment. Dkt. #261 at 8 (admitting that the Common Good Fund will

potentially benefit only eligible retired players).

Disparate treatment among identically situated class members demonstrates

the unfairness of a class settlement. See, e.g., In re Gen. Motors Corp. Pick-Up Truck

Fuel Tank Prods. Liab. Litig., 55 F.3d at 808-09 ([T]he relative inability of class

members to use the [settlement] militates against settlement approval.);

Ferrington v. McAfee, Inc., No.: 10-CV-01455-LHK, 2012 U.S. Dist. LEXIS 49160, at

*26 (N.D. Cal. Apr. 6, 2012) ([D]isparate treatment between class members

increases the likelihood that the settlement agreement does not meet the Rule

23(e) standard.).



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Courts have refused to approve settlements under which some class

members receive a benefit while others receive nothing. For example, in

Ferrington, 2012 U.S. Dist. LEXIS 49160 at *30, the court refused to approve a

settlement under which a subclass of class members would effectively be

releasing all of their claims without any compensation. The court explained

that compensating some class members while extinguishing the [other class

members] claims for no consideration would be unfair and unreasonable. Id. at

*31-32. InMirfasihi v. Fleet Mortg. Corp., 356 F.3d 781 (7th Cir. 2004), a negotiated

settlement contained a provision that would provide benefits to one subclass,

while the other subclass received nothing and still released all their claims. The

Seventh Circuit reversed the district courts grant of final approval, in part

because some class members claims were released for essentially no

consideration, despite having value. Id. at 783-85.

Here, the release is identical for all class members. But the third-party

distributions are not tethered to the released claims and will undoubtedly resultin disparate treatment of similarly situated class members. The result is unfair.

D. The Licensing Agency Does Not Guarantee Compensation to ClassMembers.

The Licensing Agency also does not compensate class members for

releasing their claims. It is a third party, and therefore the money spent

establishing the Agency does not constitute a distribution to the class members.

The Agencys revenue is entirely speculativeit guarantees nothing. Lead

Settlement Counsel has refused to answer requests for information about the

economic potential of the Agency, including revenue projections. Fahrenkrog

Decl. Exs. A-C (correspondence exchanged between M. Ciresi and D. Gustafson).



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Speculative and uncertain benefits cannot suffice to compensate class members

for giving up their rights.

The Licensing Agency will not serve as a proxy for the value of the publicity

rights claims released in the settlement. It can license publicity rights only to

non-NFL parties to promote non-NFL brands, products, and services. The

released claims, in contrast, arise from the NFLs use of class members publicity

rights to promote NFL footballa use to which retired players publicity rights

are uniquely suited. For example, in six years that NFL will celebrate its 100th

anniversary and undoubtedly will want to use retired players likenesses to

further promote NFL footballbut class members will not be compensated for

this use by the Licensing Agency. The revenue generated by the Licensing

Agency for each class member will not match the value of the class members

publicity rights to the NFL, and therefore the revenue will not correspond to the

value of each class members released claims. Revenue generated by the

Licensing Agency has nothing to do with the claims being settled.The Licensing Agency lacks the authority to complement its licensing of

retired player publicity rights with either (1) NFL IP, such as logos; or (2) NFL

game footage. Dkt. #262-1 at I.E.28 (defining NFL IP Rights); III.C.4

(articulating the NFLs exclusive rights to license game footage); IV.C.3.b

(specifying process for Licensing Agency customers to request NFL IP rights

from the NFL). If a Licensing Agency customer wants to use NFL IP, the

settlement provides only that the NFL will not unreasonably hold its consent

and will apply in good faith the same standards that it ordinary employs in

deciding whether to grant licenses for that type of NFL IP Rights (Id. at



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IV.C.3.b)that is, the customer must pay the NFL for an IP license at market

rates. The settlement agreement does not provide Licensing Agency customers

with any access to NFL game footagea right retained by the NFL for itself

alone. Id. at III.C.4.

The Licensing Agency, like the Common Good Entity, allows the possibility

that class members will receive nothing from the settlement. Therefore, it cannot

cure the deficiencies of the settlement and does not justify approval.

Further, the Licensing Agencys model is not new. In 2011, the NFL Alumni

Association also created a group licensing program for retired players. G. Martin

Letter to Alumni, July 18, 2011 (Ex. D). Like the Licensing Agency, the Alumni

licensing program divides licensing revenue between players and charity. The

Alumni program allocates 80 percent to players and 20 percent to promote the

health and welfare of retired National Football League players. NFL Alumni

Group Licensing Agreement at 3 (Ex. E). The Licensing Agency pays 75 percent

of licensing proceeds to players, minus operating expenses and the remaining 25percent to the Common Good Fund for charitable benefits. Dkt. #262-1 at

IV.E.1.a. Retired players, therefore, would receive a greater share of licensing

revenue through the existing Alumni program than through the Licensing

Agency.

Like the Settling Plaintiffs, the Alumni Association pitched its group

licensing program as a unique opportunity. Martin Letter to Alumni, July 18,

2011 (Ex. D). The program intended to provide revenue opportunities for

retired NFL players through licensing agreements, appearances and

engagements. Id. The Alumni Association was working with some of the



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biggest brands in the nation to create revenue generating opportunities for

retired players. Id. All of these are similar or identical to the claims made now by

the Settling Plaintiffs.

Although the Licensing Agency appears to be modeled on the Alumni

Association group licensing program, the Settling Plaintiffs contend Retired

Players would not have been able to create a Licensing Agency without the

settlement; they add certainly none have been able to do so previously. Dkt.

#268 at 12. If the NFL Alumni Association program did not succeed, there is no

reason to expect the Licensing Agency to do better. And if class members did not

voluntarily participate in the Alumni program, their choice should not be denied

through a class settlement. Forcing a failed model upon all class members does

not represent a fair trade for giving up their claims against the NFL.

The Licensing Agency only duplicates efforts that already exist. It does not

provide any new benefit to class members. Therefore, it does not compensate

class members for releasing their claims and cannot justify approval.

II. Complicating Factors Emphasize that the Settlement Is Unfair.Complicating factors emphasize and highlight the unfairness of the

settlement as described above. First, no damages discovery has occurred and

therefore the true value of the class members released claims cannot be

ascertained and was likely unknown during negotiations. Second, and consistent

with the lack of damages discovery, it appears that Lead Settlement Counsel

failed to consider the value of the released claims before recommending the

settlement for approval. These issueswhich may have led to the unfair

settlement structurefurther demonstrate that the settlement is unfair.



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A. The Court Should Deny Approval Because Damages Discovery HasNot Occurred.

A reviewing courts ability to evaluate a settlement is tied to the amount

and type of discovery that has been completed. Welsch v. Gardebring, 667 F. Supp.1284, 1297 (D. Minn. 1987). The extent of discovery completed and the stage of

the proceedings are important factors to consider in determining the fairness,

adequacy, and reasonableness of the Settlement because they are indicative of

the Courts and counsels ability to evaluate the merits of plaintiffs claims. Id.;

see also In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d at

788-89 (noting information problems often afflict pre-certification settlements,

including relating to damages, and stating [w]ithout the benefit of more

extensive discovery, both sides may underestimate the strength of the plaintiffs

claims). Here, the lack of damages discovery emphasizes the unfairness of the

settlement described above.

The Court has not allowed damages discovery, and the NFL has relied upon

that ruling and meticulously redacted financial information from its production.

A proper measure of damages for the NFLs violation of class members publicity

rights, however, includes the NFLs profits directly and indirectly attributable to

the use of class members rights. Damages discovery and analysis therefore must

occur before the Courtor class counselcan evaluate whether the settlement is

fair compared to the potential value of the released existing and future claims.

Discovery from the NFL is necessary to evaluate the value of the claims

released by the settlement. In right of publicity cases, recovery of the infringers

profits attributable to the infringement is an ordinarily available remedy.



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Restatement (Third), Unfair Competition 49, cmt. d (1995).3 [M]onetary relief

may be awarded for the pecuniary loss to the plaintiff or the pecuniary gain to

the defendant resulting from the unauthorized use of the plaintiffs identity. Id.

Further, [a]n accounting of the defendants profits from an unauthorized use of

the plaintiffs identity is most often justified as a means of deterring infringement

and recapturing gains attributable to wrongful conduct. Id. at cmt. c. Class

members identities, as a property right, contributed to defendants profits and

that share of the profits is the property of plaintiff[s]. 2 J. Thomas McCarthy,

THE RIGHTS OF PUBLICITY AND PRIVACY 11:34at 780. This is true even if the

defendants conduct has caused no identifiable loss to plaintiff, because the

defendant has been unjustly enriched. Id. Defendants profits also are available as

damages for the class members Lanham Act claims.Masters v. UHS of Del., Inc.

631 F.3d 464, 474 (8th Cir. 2011).

Failing to obtain critical damages discovery prevents settling plaintiffs and

reviewing courts from evaluating whether a settlement is adequate and fair. Sobel

v. The Hertz Corp., 3:06-CV-00545-LRH-RAM, 2011 U.S. Dist. LEXIS 68984 (D.

Nev. June 27, 2011). In Sobel, plaintiffs moved for final approval at a time when

discovery had been completed on liability but had only just begun on damages.

The court denied the plaintiffs motion in part because the lack of damages

3 The Restatement adopts the rule from other fields of intellectual property that

the plaintiff need only prove gross sales such that it is the defendants burden to

establish revenues not due to the infringement and any expenses properly

deducted to determine net profits. Restatement (Third) Unfair Competition 40,

cmt. d; see also 2 J.THOMAS MCCARTHY,THE RIGHTS OF PUBLICITY AND PRIVACY

11:34,at781(2013) (Recovery of the infringers profits is usually regarded as

an option open to plaintiff, in addition to recovery of plaintiffs own losses and

damages, so long as there is no double recovery.).



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discovery meant that neither plaintiffs nor the court had sufficient information to

know what the claims were worth and, therefore, whether the amount proposed

in settlement was fair. The court outlined the barrier to final approval succinctly,

stating:

Because discovery on damages was in its infancy at the

time of settlement, it is highly questionable whether

Plaintiffs have sufficient information to make a fully-

informed assessment of the strengths, weaknesses and

value of their case going forward. Indeed, as discussed

above,given the parties failure to present evidence

regarding the value of the claims Plaintiffs would be giving

up if the settlement were to be approved, the court itself

is unable to determine whether the value of the

settlement is reasonable in relation to the value of the

claims surrendered.

Id. at *42-43 (emphasis added). Thus, in Sobel, the lack of damages discovery,

coupled with the settling plaintiffs unwillingness to provide the court with

information about the value of the plaintiffs claims, justified denial of final

approval.

The same deficiencies present themselves here. In this case, there has not

been damages discovery for Plaintiffs or the Court to know what Plaintiffs

claims are worth. Furthermore, the Settling Plaintiffs have not provided the

Court (or the class) with any information as to the actual value of the released

claims. Lead Settlement Counsel has claimed that the settlement is fair withoutany apparent knowledge of what class members claims are actually worth. Dkt.

#261 at 25 (listing factors considered in evaluating settlement; omitting value of

claims); Dkt. #268 at 10 n.3. When class members have repeatedly asked him to

provide this information, he has refused to respond. Fahrenkrog Decl. Ex. C. He



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has argued to the Court that such information is essentially irrelevant to

whether the settlement is fair. Dkt. #268 at 10 n.3.

Damages discovery, however, is necessary for the Court to compare the

economic value of the settlement to the value of the class members released

claims. The practice of considering the best possible recovery metric is well-

established. The most common test for evaluating settlements is the set of factors

laid out in City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974). The

Grinnell factors include: (8) the range of reasonableness of the settlement fund in

light of the best possible recovery; [and] (9) the range of reasonableness of the

settlement fund to a possible recovery in light of all the attendant risks of

litigation. Id. The factors have been applied by many courts across the country,

including this Court. See, e.g., Alexander v. Natl Football League, No. 4-76-Civil-

123, 1977 U.S. Dist. LEXIS 14685 at *36, n.9 (D. Minn. 1977); see alsoContreras v.

PM Beef Holdings, LLC, No. 07-CV-3087, 2008 U.S. Dist. LEXIS 73800, at *3 (D.

Minn. Sept. 18, 2008) (approving a settlement in light of . . . the range ofreasonableness of the settlement in light of the best possible recovery and other

factors).

Courts therefore refuse to approve settlements without information on the

value of the released claims. Nielson v. The Sports Auth., No: C 11-4724 SBA, 2012

U.S. Dist. LEXIS 168226, *16 (N.D. Cal. Nov. 27, 2012) (denying approval where

class counsel [did] not specify the maximum recovery that [he] could have

obtained if the action were concluded on the merits); Free v. Abbott Labs., 953 F.

Supp. 751, 753 (M.D. La. 1997), (denying approval because proponents of a class

settlement failed to furnish significant information about the estimate of the



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possible range of recovery which class members will surrender in exchange for

the settlement). Appellate courts also require information about released claims

value. In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 350, 355-56 (3d Cir. 2010)

(vacating approval because the settling parties failed to provide the District

Court with estimations of recoverable damages).

Without damages discovery, the value of the class members claims cannot

be determined. Additional discovery may be necessary to determine the

additional value of the future released claims. The lack of information and status

of the litigation emphasize that the settlement is unfair to the class. The Objecting

Plaintiffs request that final approval be denied.

B. Lead Settlement Counsel Has Not Satisfied His Duty to Evaluate theValue of the Released Claims.

Lead Settlement Counsel has not provided the Court with any information

about plaintiffs possible recovery at trial. He has indicated that he did not even

considerPlaintiffs best possible recovery in evaluating the proposed settlement.

Dkt. #261 at 25 (listing factors considered). This conduct highlights the concerns

expressed above about the fairness of the settlement, and indeed a failure to

consider the potential recovery may have led to the settlement structure in which

at least some class members will receive no benefit.

Lead Settlement Counsel has claimed that the aggregate damages class

members might recover at trial are essentially irrelevant. Dkt. 268 at n.3. He

asserted that [n]o matter how large the perceived potential damages to the Classmay be, the risks of a dismissal on summary judgment or the denial of class

certification make this Settlement fall easily within the range of fair, reasonable

and adequate. Dkt. 268 at n.3; cf.Free, 953 F. Supp. at 753 (rejecting this excuse



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for failing to provide necessary information about the value of class members

claims). He has not specified what this range might be.

Lead Settlement Counsel has refused to answer class members questions

about the value of their claims. Courts have noted that counsel for the parties

are the main source of information concerning the settlement and that to

enable the court to reasonably assess the fairness of the settlement, the

proponents are obligated to furnish adequate information, including

information about the possible range of recovery. Free, 953 F. Supp. at 753.

As noted above in the Factual Background, counsel for the Objecting

Plaintiffs sent multiple requests to Lead Settlement Counsel asking that he

provide information to class members about the value of their claims, consistent

with his duties as Lead Settlement Counsel. Fahrenkrog Decl. Exs. A, B.

Objecting Plaintiffs counsel explained that his clients wanted to know what their

claims might be worth in order to assess whether the settlement offered a fair

compromise. Id. Objecting Plaintiffs counsel requested all information in Lead

Settlement Counsels possession relating to the value of NFL films and revenue

projections for the licensing agency. Id.

Lead Settlement Counsel refused to provide this information. Instead, he

responded I saw little purpose in offering a point-by-point rebuttal to your first

letter and see no reason to debate either of [your letters] now, and [y]our

letters seek to impose obligations upon me that in my view are inconsistent withthe Courts approved class notice process. Fahrenkrog Decl. Ex. C. In sum, Lead

Settlement Counsel refused to answer any questions about the value of the

released claims.



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Lead Settlement Counsels inability and refusal to demonstrate that the

settlement is fair in light of the potential value of the released claims shows that

the Objecting Plaintiffs concerns are justified. The settlement is unfair to the

class and should not be approved.

III. The Class Members Claims Have Value.A. The NFL Has Violated Class Members Rights.Plaintiffs have a strong liability case that the NFL has violated their

publicity rights. The right of publicity has been recognized in thirty-one states

including New Jersey, the likely proper choice of law for this case. 1 J. Thomas

McCarthy, THE RIGHTS OF PUBLICITY AND PRIVACY 6.3; Palmer v. Schonhorn

Eters., 232 A.2d 458, 462 (N.J. Super. Ct. Ch. Div. 1967). New Jersey follows the

Second Restatement of Torts, which imposes liability on [o]ne who appropriates

to his own use or benefit the name or likeness of another is subject to liability to

the other for invasion of his privacy. Restatement (Second) of Torts 652C

(1977).

The right of publicity is considered a property right. Id. at cmt. a.

Accordingly, the [t]he right to exploit the value of [an individuals] notoriety or

fame belongs to the individual with whom it is associated.McFarland v. Miller,

14 F.3d 912, 923 (3d Cir. 1994) (applying New Jersey law). Unauthorized use of

anothers likeness harms the person both by diluting the value of the name and

depriving that individual of compensation. Id.

The NFL misappropriates retired players publicity rights by using theirnames, images, and likenesses contained in game footage without consent to

promote its product, NFL football. NFL Films operates and maintains a library of

this game footage and uses it to promote the NFL and generate commercial

benefits for the NFL.



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The NFL leverages the value of this asset in multiple ways. The NFL

restricts access to the footage and licenses it to third parties. The NFL also uses

the footage to create its own promotional materials. This use of players rights

generates significant value for the NFL. It is undeniable that Defendant exploits

the names and likenesses of the retired players through its licensing of game

footage and creation of promotional materials from that footage.

The films that the NFL creates with the game footage amount to

promotional advertisements that the NFL uses in its efforts to develop and

maintain its brand. In particular, the NFL promotional films are designed to

develop brand name awareness, brand loyalty, the perceived quality of thebrand, and particular brand associations. For example, the productions promote

brand awareness by prominently displaying the NFL logo through any

particular film. The productions promote brand loyalty by highlighting what is

perceived to be the best and most satisfying experiences that the NFL has to

offer. And they provide a platform by which the NFL builds strategic continuity

and associations with its brand.

As the Court has noted before, the films are completely void of any criticism

of NFL football. As a result of these branding efforts, the NFL is the most

popular spectator sport in the United States. NFL Films itself boasts on its

website that Sports Illustrated magazine has described NFL Films as the most

effective propaganda organ in the history of corporate America.4

The NFL does not have the right to use class members rights. As the Court

has previously noted, to the extent the retired players written contracts even

addressed publicity rights, none of the contracts extended the NFLs right to use

the retired players publicity rights past the expiration of the player contracts.

4 http://www.nflfilms.com/media/media_buzz.swf.



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Dkt. #247 at 6. The NFL has therefore never had the legal right to use the retired

players names, likenesses, and images past their retirement. Id. Because the NFL

has misappropriated Plaintiffs rights for its own benefit without their consent,

Plaintiffs liability case is strong.

B. The Alleged Litigation Challenges Identified by the SettlingParties and the Court Do Not Alleviate Their Burden to Demonstrate

that the Settlement Is Fair.

Courts have rejected class settlements where the proponents balancing of

the merits of the case against the settlement terms amounts to the assertion that

settling under any terms is better than the possibility of losing the case. Free, 953F. Supp. at 753. The possibility of no recovery is always present in litigation,

id., and it adds nothing to the analysis to argue that the possibility exists without

quantifying the risk and discounting the potential recovery accordingly.

The settlement agreement identifies several challenges allegedly

considered by the Settling Plaintiffs and their counsel. Dkt. #262-1 at I.D.1. The

Settling Plaintiffs have relied on these challenges to justify their failure to

provide a valuation of the case. Dkt. #261 at 24; Dkt. #268 at 10 n.3. The Court

also relied on two of thesethe limitations period and class certificationin

granting preliminary approval. Dkt. #270 at 3-4. None of these challenges,

however alleviates the Settling Parties burden to submit evidence comparing the

potential value of the released claims to the value given in the settlement.

The fundamental problem with the Settling Plaintiffs balance of the case

merits and settlement terms is the lack of quantificationof potential damages,

value of released future claims, litigation costs, or risks. Comparing a settlement

number$28.5M to $42Mto qualitative substantive issues is comparing apples



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to oranges. The Court should not approve the settlement because, without

quantitative information about the class members claims, it cannot perform the

single most important factor in the fairness analysis: a balancing of the

strength of the plaintiffs case against the terms of the settlement. Van Horn , 840

F.2d at 607.

For example, the Courts ruling that damages cannot go back more than six

years from the filing of the complaint is meaningless without knowing the

magnitude of damages incurred during that time period. The complaint was

filed in 2009, meaning that ten years (2003-2013) of damages have accrued within

the limitations period. Further, the settlement releases not only existing claims

but also future claimsindefinitely. The value of the future released claims may

dwarf the ten years of damages already accrued. The Settling Plaintiffs have not

provided any way to know, and Lead Settlement Counsel apparently has not

considered this information.

The Settling Plaintiffs and Courts qualitative concerns about classcertification also do not demonstrate whether the funds allocated in the

settlement are fair. Further, a class can and should be certified. The Court already

has certified a class under Rule 23(b)(3), urged by the Settling Plaintiffs. Dkt.

#270 at 5-7; Dkt. #261 at 12-18. Class certification for settlement demands full

satisfaction of the Rule 23(a) and (b) requirements in the same way as class

certification for trial.Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997);

MOORES FEDERAL PRACTICE 23.161 (2013). Indeed, the required scrutiny under

Rules 23(a) and (b) isgreaterwhen certifying a class for settlement before trial.

MOORES FEDERAL PRACTICE 23.161 .



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The Courts certification order, therefore, demonstrates that class

certification is appropriate if this case proceeds to trial. The Settling Plaintiffs,

however, previously argued that the Objecting Plaintiffs opposition to the

settlement did not address the risk of a denial of class certification if the case

does not settle. Dkt. #268 at 10 n.3. Therefore, the Objecting Plaintiffs here briefly

explain the justification for class certification.

This class can be certified because Defendants liability and the damages it

owes to Plaintiffs may be resolved in one stroke on a class-wide basis. Here,

Defendants liability depends on the nature of its use of the game footage in its

promotional films, and the damages owed to the retired players is controlled by

the value of the footage and the profits derived from its use, with individual

damages being apportioned with either an accounting or a class-wide model

developed by Objecting Plaintiffs expert.

Civil Procedure Rule 23 authorizes classes that meet the requirements of

numerosity, commonality, typicality, and fair and adequate representation. Fed.R. Civ. P. 23. In addition, the class in this case must satisfy Rule 23(b)(3)s

predominance requirement. All requirements are satisfied, as the Court has

explained. Dkt. #270 at 5-7. The settlement agreement, however, points to the

predominance requirement as a potential challenge.

Questions common to all class members predominate over individual

questions and justify certification under Rule 23(b)(3). Individual issues are those

which require evidence that varies from member to member for a prima facie

showing. Cox v. Zurn Pex, Inc. (In re Zurn Pex Plumbing Prods. Liab. Litig.), 644

F.3d 604, 618 (8th Cir. 2011) (quotation marks omitted). Common questions are



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those for which a prima facie case can be established through common

evidence. Id. Here, common questions predominate over individual questions in

all aspects of the class members claims.

i. The Law of a Single State Applies to All Class Members State-LawClaims.

The law of a single stateNew Jerseycan and likely should be applied to

all class members state-law claims. This Court must apply Minnesotas choice-

of-law rules to determine the applicable law. Whitney v. Guys, Inc., 700 F.3d 1118,

1123 (8th Cir. 2012). Under Minnesotas three step conflict-of-law analysis, New

Jerseys law likely should apply.

New Jerseys law can be constitutionally applied because that state has a

significant aggregation of contacts, creating state interests, such that choice of its

law is neither arbitrary nor fundamentally unfair. Id. at 1124 (citingAllstate Ins.

Co. v. Hague, 449 U.S. 302, 312-13 (1981)). Defendants activities in New Jersey

through NFL Films provide an aggregation of contacts, creating sufficient state

interests in New Jersey such that application of New Jersey law is neither

arbitrary nor unfair. NFL Films holds rights to the game footage and is

headquartered in New Jersey.

New Jersey law likely should be applied here because it best satisfies

Minnesotas multi-factor evaluation of the: (1) predictability of result; (2)

maintenance of interstate and international order; (3) simplification of the

judicial task; (4) advancement of the forums governmental interest; and (5)

application of the better rule of law. Whitney, 700 F.3d at 1123-24 (quotingJepson

v. Gen Casualty of Wis., 513 N.W.2d 467, 470 (Minn. 2000)). Each factor is

addressed below.



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First, predictability of results requires that the same facts, regardless of

forum, should have the same result. The injury to the retired players comes from

Defendants planned business operations. Under these circumstances, the

predictability factor is important. SeeSchumacher v. Schumacher, 676 N.W.2d 685,

690 (Minn. Ct. App. 2004). Predictability goes to whether the choice of law was

predictable before the time of the transaction or event giving rise to the cause of

action. Kolberg-Pioneer, Inc. v. Belgrade Steel Tank, Co.823 N.W.2d 669, 673 (Minn.

Ct. App. 2012). Choosing law based on locus of Defendants activity that caused

the harm (i.e., New Jersey) would lead to high predictability and supports

applying New Jersey law. See id. (applying Minnesota law in products liability

case where the product was manufactured in Minnesota but the injury occurred

in Montana).

Further, New Jersey law can be applied because the activities involved in

producing nationally broadcast publications are planned. [B]roadcasters might

be chilled by the possibility of being subject to the varying laws of 50 states. . . .[T]he need for predictability by media defendants, who otherwise would be

required to comply with differing laws governing defamation in fifty states, is

analogous to the need of those entering into a contract to know which states

laws govern the contract. Richie v. Paramount Pictures Corp., 532 N.W.2d 235, 241

(Minn. Ct. App. 1995) (reversed on other grounds). The first factor strongly

favors New Jersey law.

Second, courts consider interstate and international order, which is

primarily concerned with whether the application of [New Jersey] law would

manifest disrespect for [another states] sovereignty or impede the interstate



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movement of people or goods.Jepson v. Gen. Casualty of Wis., 513 N.W.2d 467,

470 (Minn. 2000), 513 N.W.2d at 471. This factor favors New Jersey law because

of New Jerseys legitimate interest to police the activities of NFL Films in its

state. See Hosch v. Levings, 2009 Minn. App. Unpub. LEXIS 1155, at *12 (Minn. Ct.

App. Oct. 27, 2009).

Third, Minnesota courts consider simplification of the judicial task. This

factor is neutral because most state law regarding publicity rights is clear and

straightforward to apply. Id.

Fourth, Minnesota courts consider the advancement of the forums

governmental interest. This factor turns on Minnesotas governmental interest in

this case. New Jersey publicity rights law is consistent with that of Minnesota

because the Court has held that Minnesota courts would recognize publicity

claims and the two states would apply similar statutes of limitation. Accordingly,

applying New Jersey law advances Minnesotas governmental interests by

ensuring that law consistent with that of Minnesota is applied. This factortherefore favors applying New Jersey law.

Fifth is a consideration of which of the competing laws is the better rule of

law. Minnesota courts have not given this factor any weight and it is therefore

neutral.

Accordingly, the five factors in Minnesotas choice of law analysis likely

justify the application of New Jersey law to all class members state-law claims.

The proper choice of law analysis, therefore, raises common questions, not

individual questions.



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ii. Common Liability Questions Predominate Over Individual LiabilityQuestions.

The only issue to be resolved in determining the NFLs liability for

misappropriating the retired players publicity rights is whether the NFL usedthe game footage for its benefit as commercial promotions. There is no dispute

that the retired players contracts did not confer on the NFL a right to use the

players likenesses past the expiration of the contractsonce the player was done

playing and the contract terminated, the NFLs right to use the players likeness

was extinguished. Further, the NFL has pointed to no other contract, written or

oral, that allows the use of the retired players publicity rights as contained in the

game footage. Therefore, the only issue left to seal the NFLs liability for

misappropriating the retired players publicity is whether the NFL

misappropriated the likenesses for its own use or benefit. This issue is resolved

in one stroke on consideration of the promotional nature of the films that the

NFL creates with the game footage as well as the fact that it licenses the game

footage to third parties. Further, any appeal to the First Amendment by

Defendant would also be resolved by this contention. The NFLs liability can

therefore be resolved in one stroke with the determination of the truth or

falsity of one contention: that the NFLs use of the game footage is commercial in

nature and inures to its pecuniary benefit.

iii. Common Damages Questions Predominate Over Individual DamagesQuestions.

The class also will provide a damages model that allows calculation of

aggregate and individual damages on a classwide basis. First, the value of the

right to use the game footage can be determined, and the vast majority of this

value should be attributed to the retired players, who are the central focus of the



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footage. Second, various accounting methods or models can be employed to

allocate the total damages among individual players.

Economist Carl Degen has explained that damages can be calculated on an

aggregate basis and allocated among class members according to a formulaic

approach. Degen Decl. 9-20.5 The profit generated by the NFL through its

unauthorized use of class members publicity rights can be determined in the

aggregate. Id. 9-11. The aggregate profit then can be allocated among the class

members according to a common formulaic methodology. Id. 12-17. Common

questions predominate over individual questions in the damages analysis.

Class certification would be appropriate even if a classwide damages model

could not be maintained. [W]hen adjudication of questions of liability common

to the class will achieve economies of time and expense, the predominance

standard is generally satisfied even if damages are not provable in the

aggregate. Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1437 (2013) (dissent). Classes

may be divided into subclasses. Fed. R. Civ. P. 23(c)(4)-(5). Recognition that

individual damages calculations do not preclude class certification under Rule

23(b)(3) is well nigh universal, Comcast, 133 S. Ct. at 1437 (citing, among other

cases, Beattie v. CenturyTel, Inc., 511 F.3d 554, 564-66 (6th Cir. 2007)), and in the

mine run of cases, it remains the black letter rule that a class may obtain

certification under Rule 23(b)(3) when liability questions common to the class

predominate over damages questions unique to class members. Id. Accordingly,

for the reasons detailed above, the retired players class should be certified for

liability purposes. Certification for liability purposes followed by a finding of

5 Citations to Degen Decl. refer to the Declaration of Carl G. Degen, submitted

with this document.



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liability would allow class members to obtain an injunction, a standard form of

relief for violations of the right of publicity. 2 J. Thomas McCarthy,THE RIGHTS

OF PUBLICITY AND PRIVACY 11.22.

The Settling Parties therefore are wrong that class members are unlikely to

prevail on their claims or unlikely to certify a class. The value of the class

members claimswhich has not been determinedshould not be unfairly

discounted based on ambiguous statements about risks. All litigation has risks.

Those presented here do not differentiate this case from any other and do not

justify the extreme discount imposed on the class members rights advocated by

Lead Settlement Counsel and the Settling Plaintiffs.

CONCLUSION

For the reasons outlined in this objection, the proposed settlement is

inadequate, unreasonable, and unfair. The ObjectingPlaintiffs respectfully

request that the Court deny final approval.



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Dated: August 21, 2013 ROBINS, KAPLAN, MILLER & CIRESI L.L.P.

By: s/Michael V. Ciresi

Michael V. Ciresi (MN Bar No. 16949)

Jan M. Conlin (MN Bar No. 192697)Thomas C. Mahlum (MN Bar No. 259391)

Aaron R. Fahrenkrog (MN Bar No. 386673)

2800 LaSalle Plaza

800 LaSalle Avenue

Minneapolis, MN 55402-2015

Phone: (612) 349-8500

Fax: (612) 339-8141

[email protected]

[email protected]

[email protected]

[email protected]

Robert A. Stein (MN Bar No. 104930)

BOB STEIN LLC

10125 Crosstown Circle, #200

Eden Prairie, MN 55344

Phone: (952) 829-1043Fax: (952) 829-1040

[email protected]

Thomas J. Ward

WARD & WARD, P.L.L.C.

2020 N Street, N.W.

Washington, D.C. 20036

Phone: (202) 331-8160

Fax: (202) [email protected]

Attorneys for Plaintiffs

James Lawrence Marshall,

Joseph Michael Senser,

and Dante Anthony Pastorini



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WORD COUNT COMPLIANCE

The undersigned hereby certifies that

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