John Frederick Dryer, et al., on behalf of themselves and all others similarly situated, Plaintiffs,
National Football League, Defendant.
MEMORANDUM AND ORDER
PAUL A. MAGNUSON, District Judge.
This matter is before the Court on Lead Settlement Counsel's Motion to Enforce the Injunction in the Preliminary Approval Order. For the reasons that follow, the Motion is granted.
In preliminarily approving the settlement in this matter, the Court entered an Order that conditionally certified a settlement class and provided procedures both for objecting to the settlement and for opting out of the settlement class. To effectuate the orderly management of the issues in the case, the Court also ordered that "[a]ll Class Members and their legally authorized representatives, unless and until they have timely and properly excluded themselves from the Settlement Class" are preliminarily enjoined from filing or commencing any lawsuits "arising out of the Claims and causes of action, or the facts and circumstances at issue, in the case and/or the Released Claims." (Docket No. 270 at 19.) The injunction also prohibits the class members and their legal representatives from "[d]isseminating to members of the Settlement Class or publishing in any form... any materially false or misleading information regarding the terms of this Settlement or Settlement Agreement." (Id.)
In the past two weeks, putative class members and their attorneys have filed two new lawsuits in other Districts: Culp v. NFL Productions, LLC, 1:13-cv-4999 (D.N.J. filed Aug. 20, 2013), and Tatum v. Nat'l Football League, 2:13-cv-1272 (W.D. Pa. filed Aug. 30, 2013). The allegations in these lawsuits are substantively identical to the claims in this matter, which contend that the NFL is violating federal and state rights of publicity by using former players' images in NFL Films' productions without compensating the players for that use. The Culp lawsuit, in particular, was filed with much publicity and fanfare, including the attorneys publicly encouraging individuals to opt out of the instant case so that those individuals could participate in the new case.
There can be no doubt that the filing of the Culp and Tatum lawsuits violates the letter and the spirit of the injunction in force in this case. Although it might be understandable for an individual plaintiff to believe that the injunction does not apply to him because he mailed in an opt-out request, it is disingenuous for an attorney to claim the same mistaken belief. Attorneys know how class actions work, and they also know that a putative class member is not released from a class until two things happen: first, a class is certified, and second, the Court finds that the class member has properly opted out of that class. Here, neither of these prerequisites has occurred.
Moreover, the injunction does not simply restrain putative class members, it also restrains their legal representatives. The attorneys in the Culp matter are attorneys of record in this case, purporting to represent at least some of the putative Plaintiff class. Their conduct directly violates the injunction. And the attorneys in the Tatum matter similarly purport to represent more than 550 individuals who are part of the putative class. Having undertaken that representation, they are bound by the Court's orders with respect to the putative class.
A. Effectiveness of Opt-Outs
Counsel for the Culp and Tatum plaintiffs have submitted to the Court caselaw that they contend establishes that opt-outs are effective when mailed. They argue that this proves that the filing of the two new lawsuits was appropriate and within the opt-out Plaintiffs' rights. They ignore the glaring differences between the cases they cite and the instant matter. First, the class here is only conditionally certified and thus any "opt-out" depends on whether the Court actually certifies the class, which necessarily includes the determination that each opt-out was timely and properly made. Second, and more importantly, the Court specifically enjoined any putative class member from initiating further litigation in this matter. It should have been self-evident to the lawyers involved that this injunction restrains them and their clients from filing any lawsuit until the final approval hearing. The injunction interpreted otherwise is essentially meaningless.
Both Culp counsel and Tatum counsel rely heavily on a 1976 case from the Northern District of California, McCubbrey v. Boise Cascade Home & Land Corp. , 71 F.R.D. 62 (N.D. Cal. 1976). But the issue in that case was far different than the issue presented here. In McCubbrey, the court determined that putative class members who failed to submit requests for exclusion from the class were nonetheless not barred from instituting litigation during the opt-out period, because the commencement of that litigation constituted the putative plaintiff's notice of intent to opt-out. Id. at 67. Here, the issue is not whether the Culp and Tatum plaintiffs wish to opt out (although some apparently do not, see n.4 supra), but whether the mere mailing of their opt-out requests released these putative Dryer plaintiffs from the Court's injunction. McCubbrey and its progeny do not address that issue and are thus unpersuasive.
In this case, the opt-outs are not and cannot be effective unless and until the Court finally certifies a settlement class and finally approves the settlement, including determining which class members have timely and properly asked to be excluded from the class. As all parties realize, the settlement is controversial and its approval and the accompanying final certification of a plaintiff class are not a foregone conclusion. Counsel do not explain what will happen to these new cases if the Court does not approve the settlement and thus does not certify a class. This fact alone eviscerates their contention that the injunction does not apply to individuals who have requested exclusion from the as-yet-uncertified class. There can be no doubt that the filing of Culp and Tatum violated the injunction against related litigation.
B. Statute of Limitations Issues
Counsel for Culp and Tatum also contend that the filing of the two new lawsuits was necessary because the statute of limitations, which was tolled on the filing of the Dryer action, would begin running as of the date any putative class member sought opt-out status. This argument ignores both logic and the fact that, if an injunction is in place preventing the filing of any related litigation, the statute of limitations is necessarily tolled until that injunction expires. Indeed, the cases on which counsel rely support the ...