dryer supplemental opposition filed dec 10, 2012 on nfl/hausfeld motion to show cause

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

TO: THE HONORABLE COURT AND ALL PARTIES OF RECORD

PLEASE TAKE NOTICE that Plaintiffs and Putative Class Representatives Fred Dryer,

Jim Marshall, Elvin Bethea, Joe Senser, Dan Pastorini, and Ed White (for ease of reference, the

“Dryer Group Plaintiffs”) hereby submit this Supplemental Opposition to “Defendant National

Football League’s Motion for an Order to Show Cause.” (Dkt. No. 230) (the “Motion”).

I. INTRODUCTION.

As the Court is aware, the Dryer Group Plaintiffs submitted their initial opposition brief

(Dkt. No. 236) on Thursday, December 6, 2012, having been provided fewer than 24 hours’

notice by Defendant NFL to submit a responsive brief after receipt of the Motion on Wednesday,

December 5, 2012, and prior to the hearing set that the NFL set on the Motion that was held on

Thursday, December 6, 2012 at 2:00 p.m. Given the extreme nature of the remedy sought by the

NFL, and the limited briefing to date, the Dryer Group Plaintiffs submit this supplemental brief

(1) as an aid to the Court regarding the governing legal standards, and (2) to provide a further

offer of proof regarding relevant facts that the Dryer Group Plaintiffs will prove should the Court

issue any order to show cause and conduct the required full evidentiary proceeding.

DRYER, et al., Plaintiffs, v. NATIONAL FOOTBALL LEAGUE, Defendant. _______________________________________

Civil No. 09-2182 PAM/AJB DRYER GROUP PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO DEFENDANT NATIONAL FOOTBALL LEAGUE’S MOTION FOR AN ORDER TO SHOW CAUSE

CASE 0:09-cv-02182-PAM-AJB Document 245 Filed 12/10/12 of 14

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The Dryer Group Plaintiffs, in their initial opposition brief and accompanying six

declarations (Dkt. Nos. 237, 238, 239, 242, 243, 244), set forth various relevant facts and

distinguished the NFL’s cited authorities. The Dryer Group Plaintiffs did not have adequate time

to set forth relevant legal authorities, or to provide a more detailed offer of proof as to some

additional relevant facts, and do so herein. The authorities and further offer of proof set forth

herein detail:

(1) The severity of a finding of contempt;

(2) The burden of proof required for a contempt finding;

(3) The required conduct of a contempt proceeding;

(4) Courts’ examination of the relevancy of all parties’ conduct; and

(5) A further offer of proof regarding numerous facts that demonstrate the NFL and its

desired Plaintiffs’ cy pres settlement counsel have acted inconsistently with any

belief that the gag order was in effect, or if it continued to be in effect, engaged in the

same violations of it for which the NFL now claims extreme prejudice.

II. THE SEVERITY OF A CONTEMPT REMEDY.

The Supreme Court instructed that “Process of contempt is a severe remedy, and should

not be resorted to where there is fair ground of doubt as to the wrongfulness of the defendant's

conduct.” California Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618, 5 S.Ct. 618,

622 (1885) (“Molitor”) (emphasis added). See also Spallone v. U.S., 493 U.S. 265, 276, 110

S.Ct. 625, 632 (1990) (reversing trial court order of contempt as abuse of discretion, stating

“And the use of the contempt power places an additional limitation on a district court's

discretion, for as the Court of Appeals recognized, ‘in selecting contempt sanctions, a court is

obliged to use the ‘least possible power adequate to the end proposed.’ ” (citations omitted))

(emphasis added); American Foundry & Mfg. Co. v. Josam Mfg. Co., 79 F.2d 116, 118, 120, 124

(8th Cir. 1935) (quoting preceding language from Molitor, referring to the “drastic penalties of

contempt,” the “drastic remedy of contempt,” and reversing lower court order of contempt)

(emphasis added); Mahers v. Hedgepeth, 32 F.3d 1273, 1274-75 (8th Cir. 1994)


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(“Mahers”) (reversing trial court contempt order, stating “The contempt power is a most

potent weapon, and therefore it must be carefully and precisely employed.”) (emphasis

added); Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 495,

510 (D. N.D 1982) (denying contempt motion, stating “The sanction of a contempt

proceeding is an extreme sanction . . . and “‘at the severe end of the spectrum,’” and it is

not proper to find the Defendants in contempt of Court. However, it is apparent to me

that a supplement to the Order of November 4, 1981, must be made.”) (emphasis added);

Mitchell v. Stewart Bros. Const. Co., 184 F. Supp. 886, 901 (D. Neb. 1960) (referencing

the “serious stigma” and “severe consequences” of a contempt finding) (emphasis

added).

III. THE “CLEAR AND CONVINCING EVIDENCE” BURDEN OF PROOF.

Defendant NFL entirely neglects to identify the burden of proof that must be met.

The Eighth Circuit has detailed the burden of proof required for a finding of civil

contempt. In Kansas City Power & Light Co. v. N.L.R.B., 137 F.2d 77, 79 (8th Cir.

1943), the court dismissed a contempt petition and stated:

The rule as to quantum of evidence in civil contempt proceedings is in no way affected by the situation that such proceeding is in connection with an enforcement decree of an order of the Board. National Labor Relations Board v. Tupelo Garment Co., 5 Cir., 122 F.2d 603, 606. The rule is that contempt need not be shown beyond a reasonable doubt but that something more than a bare preponderance of evidence is necessary. Oriel v. Russell, 278 U.S. 358, 364, 49 S.Ct. 173, 73 L.Ed. 419; California Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618, 5 S.Ct. 618, 28 L.Ed. 1106. This Court has stated that a ‘degree of certainty‘ is required which leaves no fair ground of doubt. City of Campbell v. Arkansas-Missouri Power Co., 65 F.2d 425, 428. Other courts of appeals have expressed the rule as requiring clear and convincing proof. National Labor Relations Board v. Tupelo Garment Co., 5 Cir., 122 F.2d 603, 606; Fox v. Capital Co., 3 Cir., 96 F.2d 684, 686; Telling v. Bellows-Claude Neon Co., 6


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Cir., 77 F.2d 584, 585; Hanley v. Pacific Live Stock Co., 9 Cir., 234 F. 522, 531. Whatever qualifying adjective may be used in the various opinions, they are unanimous that a heavy burden of proof rests upon the party urging contempt. We regard this rule as applicable here.

See also SapaNajin v. Gunter, 857 F.2d 463, 465 (8th Cir. 1988) (affirming district court

denial of contempt motion, and stating “To prevail on his contempt claim, SapaNajin has

the burden of establishing by clear and convincing evidence that the decree is being

violated.”); Mahers (referencing clear and convincing evidence standard).

The Eighth Circuit also addressed the conduct of a contempt proceeding in

Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1342 (8th Cir. 1975), reversed a trial

court order of contempt, remanded for consideration of a second hearing, and stated that

“Like any civil litigant, a civil contemnor is . . . clearly entitled to those due process

rights, applicable to every judicial proceeding, of proper notice and an impartial hearing

with an opportunity to present a defense . . .. Certainly the history of contempt litigation, .

. . prescribes extreme care and insistence on the full indicia of due process in contempt

cases . . .”) (omissions in original, citations omitted) (emphasis added).

IV. COURTS EXAMINE ALL PARTIES’ CONDUCT REGARDING A GAG-

ORDER.

Defendant NFL failed to provide citation to applicable cases regarding so-called

“gag orders” in which all parties’ conduct was relevant, or to class action cases. Such

cases including the following:

(1) U.S. v. Palfrey, 515 F. Supp. 2d 120, 122 -123 (D.D.C. 2007). There, the court

stated the following:

Defendant requests an order barring the Assistant United States Attorneys (AUSAs) assigned to prosecute this matter due to their alleged disclosure of privileged settlement communications for a malicious and improper purpose, and their “allegedly implicitly violating the April 12, 2007 ‘gag’ order” and explicitly violating LCrR 57.7.


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Defendant's position is without merit. In its Memorandum Order of October 10, 2007, the Court observed that Defendant and her counsel have made extensive use of the media to inform the public about what they believe to be the merits of the case. The “settlement negotiations” to which Defendant cites have been referred to in various public statements she and her counsel have made and which have been widely reported in one fashion or another in the press. Accordingly, the Court concludes that Defendant has not shown improper conduct by AUSAs Daniel Pearce Butler, Catherine K. Connelly, William Rakestraw Cowden, and her request to bar those AUSAs is denied.

(2) Com. v. Mulholland, 549 Pa. 634, 645-46, 702 A.2d 1027, 1032 (Pa. 1997).

There, the Supreme Court of Pennsylvania stated the following:

Next, [Defendants] Mulholland and Albert give specific examples of statements to the media which they say violated the court's prohibition against such communications. These included statements by David B. White, Esq., counsel for the Gammage family [the family of an alleged victim in the criminal case at issue], regarding the composition of the jury, and statements by Dr. Wecht, the medical expert hired by the Gammage family, that the absence of black jurors “was not right.” These statements occurred during jury selection, prior to the beginning of the trial. Both Dr. Wecht and Attorney White made additional statements, along similar lines, to the media during the trial. Two other witnesses, listed by both the Commonwealth and the police officers as witnesses, also appeared on television and made public statements about the trial. At the time of the television appearances, they had already appeared as Commonwealth witnesses and been released by the Commonwealth, yet they remained as defense witnesses. Neither the defense nor the prosecution informed them of the “gag order.” The statements of Mr. White, Dr. Wecht, and the other two witnesses Mulholland and Albert ascribe to the prosecutor, as he had never informed them of the “gag order.” This argument fails for two reasons. First, in order for the extrajudicial statements to constitute prosecutorial misconduct, the prosecutor must be clearly responsible for the misconduct. [footnote omitted] Here, the objectionable


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statements were not made by the prosecutor's office, but by others. The statements of White, a private attorney, are attributed to the prosecutor because he allegedly “coordinated” Commonwealth witnesses. The other three witnesses who made extrajudicial statements were listed as witnesses by both the prosecution and the defense, and, accordingly, any error must be shared by both sides. Second, if such misconduct occurred, a mistrial was not required; the court could impose contempt sanctions or bar the testimony of any witness who violated the “gag order.”

(3) In Hedrick v. Marchand, No. CIV-S-75-680 LKK, 1983 WL 474, at * 4 (E.D. Cal.

Feb. 4, 1983), the court stated: 12. Gag Order. With respect to the objection that there was a gag order preventing proper information concerning this settlement to be made available to members of the class or to individual plaintiffs, the Court finds that the stipulated order of January 13, 1981, did not prohibit discussion with any member of the class or any plaintiff concerning the proposed settlement once it was tentatively agreed upon. Counsel for plaintiffs were not prohibited from discussing proposals or strategy with the plaintiffs during the course of the settlement discussions and, in fact, counsel did so. The order did not prevent counsel from discussing with any plaintiff or class member any concern about past or present working conditions or employment practices in Yolo County or from discussing any proposal that any plaintiff or class member thought should be advanced in the settlement process.

V. ADDITIONAL OFFER OF PROOF

The Dryer Group Plaintiffs, in their initial brief, set forth various relevant facts

that they are prepared to prove should the Court issue an order to show cause, which they

believe it should not. Those plaintiffs are prepared to submit and prove the following

additional relevant facts at an evidentiary hearing, in addition to those detailed in their

initial brief and others to be developed through continued investigation:

(1) The NFL had advance knowledge that non-parties would attend and

participate in the November 27, 2012 Status Conference, and did not object,


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before or after that event.

(2) Subsequent to the November 27, 2012 Status Conference, and prior to Mr.

Lurtsema’s letter appearing on Dave Pear’s blog, counsel that were advocating

for the agreed-upon settlement with the NFL caused one or more non-parties

in attendance at the November 27, 2012 Status Conference to advocate for the

agreed-upon settlement by sending numerous emails to non-Plaintiff putative

class members. These emails disclose numerous items regarding the

settlement. At a minimum, the emails include the following:

(a) A November 28, 2012 email sent to at least 25 individuals, including at

least eight individuals not even present at the November 27, 2012 Status

Conference, and perhaps many more (the undersigned are still seeking

to verify the identities of certain recipients). Even more troubling, the

email makes it clear that there had already been communications with

those individuals regarding the proposed settlement. It is presently

unknown whether those were in writing, verbal, or both. Interim

Plaintiffs’ Co-Lead Class Counsel Hausfeld and Zimmerman are copied

on this email. There was no indication whatsoever that the recipients

were prohibited from, in turn, emailing the information to others and/or

discussing it with others.

(b) A November 29, 2012 email from the same non-plaintiff class member

to at least two non-plaintiff class members commenting on the

settlement, neither of whom was at the November 27, 2012 Status

Conference.

(c) A November 30, 2012 email from the same non-plaintiff class member

to at least two non-plaintiff class members commenting on the

settlement, neither of whom was at the November 27, 2012 Status

Conference.


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(d) A December 3, 2012 email from the same non-plaintiff class member to

at least ten non-plaintiff class members commenting on the settlement,

at least seven of whom were not at the November 27, 2012 Status

Conference (the undersigned is continuing research as to the identifies

of the others). The email further seeks to set up a “players only

meeting” to further discuss the settlement.

(3) Prior to the November 27, 2012 Status Conference, counsel told a number of

nonparties on a number of occasions that this case would settle for the amount

stated by the NFL at the November 27, 2012 Status Conference, and provided

other material terms of the proposed settlement.

(4) Certain Plaintiffs’ Counsel made a settlement offer which was relayed to a

number of non-parties before Plaintiffs knew it was going to be done. Certain

Plaintiffs’ Counsel subsequently denied ever discussing the amount with non-

parties. In other words, non-parties knew of certain Plaintiffs Counsel’s offer

before Plaintiffs did, and when asked thereafter, denied that the offer or

statement was made.

(5) A non-party, non-putative class member attended the November 27, 2012

Status Conference, and heard Plaintiffs’ counsel, NFL counsel, and the Court

discuss their opinions on the strengths and weaknesses of the case. This

individual was present while certain of Plaintiffs’ counsel denigrated their

own clients’ legal and factual positions in the case. The undersigned were

unaware of who he was, and unaware as to whether even the Court was aware

of his identify and status as a non-Plaintiff, non-putative class member. We

further understand that he even was advocating for the proposed settlement in

the portion of the November 27, 2012 Status Conference that was specifically

designated by the Court as the “players only” portion of the Conference.

(6) On November 29, 2012, certain Plaintiffs’ counsel sent the entire draft


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settlement agreement to at least one non-party class member, further

evidencing that there was no either Gag Order in effect, or they were willfully

choosing to ignore it.

(7) Numerous additional days have passed since the NFL’s filing of its Motion. It

still has not proposed any redacted version of the Lurtsema letter.

(8) The NFL still has made no effort to remove or redact its Motion from the

publicly-available PACER system, i.e., the portion of the Motion that provides

two links at which Mr. Lurtsema’s letter can be found. The PACER website

states that “PACER is available to anyone who registers for an account. The nearly

one million PACER users include attorneys, pro se filers, government agencies,

trustees, data collectors, researchers, educational and financial institutions,

commercial enterprises, the media, and the general public.” <http://www.pacer.gov>

(last visited December 7, 2012).

(9) The NFL has made no articulation of potential juror prejudice, the dominant concern

of any court that examines gag-order issues. See, e.g., U.S. v. Peters, 754 F.2d

753, 762-63 (7th Cir. 1985) (“There is of course, a temptation to assume that the

public at large devotes time and effort to reading and remembering news items on

pending cases. The real fact is that people who read and write for a living-such as

those in the legal or journalism fields-tend to believe that everyone else reads news

stories with devoted attention . . . One of the greatest students of the American jury

once remarked that “the jury is a pretty stubborn, healthy institution, not likely to be

overwhelmed either by a remark of counsel or a remark in the press.” . . . Kaplan

concluded that a “minimally competent voir dire” was enough to counter “most

media-induced bias.”).

In the present Dryer matter, no trial date is set and there are numerous heavily-

contested procedural matters that will precede any trial.


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(10) Mr. Lurtsema did not do anything other than submit a letter to Dave Pear’s

blog, which is simply a vehicle for retired NFL players to communicate with

each other, and is not a newspaper. It is not as if, for example, Mr. Lurtsema

or anyone else gave any local press conference in Minneapolis, did an

interview with a local Minneapolis newspaper, or anything else that could

even remotely be seen as an attempt to influence jurors as to the NFL’s

liability in this matter.

(11) The NFL does not articulate any specific prejudice that it has suffered here

with respect to putative class members, and it is far from clear that is even a

relevant factor in the analysis. In the event that it is, the Dryer Group

Plaintiffs will present a number of facts regarding the NFL’s relationship with

retired plaintiffs, which will make in unequivocally clear that the relationship

has not been a good one, and no class member would have been surprised by

the NFL’s efforts here with respect to the settlement and that there were

significant shortcomings to it, to put it charitably.

Moreover, it is important to examine how Mr. Lurtsema ends his letter: “I am

against accepting it and wanted all of you to know why. But it should be your

own call to make.”

(12) The importance of communications with class-members in the present

circumstances is illustrated by another case involving Plaintiffs’ Interim Co-

Lead Class Counsel Mr. Hausfeld. The case, involving antitrust claims

against Microsoft, illustrates plaintiffs’ lawyer efforts to create a false-

momentum towards acceptance of a settlement, highlighting the importance of

open and frank communication with class members. The February 28, 2002

edition of American Lawyer provides an initial overview. In an article titled

“1 Live Crew: A Look at an Attorney in the Microsoft Action – To cut one


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national deal with Microsoft, did some class action plaintiffs’ lawyers sell out

California consumers?,” by Susan Beck, available at

<http://www.law.com/jsp/article.jsp?id=900005529413&1_Live_Crew&slretu

rn=20121109220518> (last visited December 9, 2012), the author states:

“After months of negotiations that took place with Judge Motz's knowledge, Tulchin, Microsoft deputy general counsel Thomas Burt, Hausfeld and Chesley went to the judge on Oct. 17 and proposed the education settlement that would extinguish all consumer claims, including the California suit. (Plaintiff attorney fees would be negotiated by Hausfeld, Chesley and Microsoft and submitted for court approval.) Judge Motz suggested that Lieff, who was participating by phone, inform Crew of this development. That's when a startled Crew refused to hear the details from Lieff. Milberg Weiss' Leonard Simon, a member of the multidistrict plaintiffs' 28-lawyer team who cast the only vote against the deal, says that bypassing Crew was wrong. By going to Judge Motz first, and piquing his interest, he says, Microsoft and the lead plaintiffs' lawyers hoped to "cram down" the settlement. Says Simon: "They did this to box Crew in and put massive pressure on him to accept a settlement that he had not been involved in negotiating. . . . Lead federal plaintiffs' lawyer Hausfeld explains that they didn't include Crew because he'd been uncooperative before, and Hausfeld saw no reason to reach out again. "California was offered a number of opportunities to be involved [in joint negotiations] and declined," he claims, adding that he had a letter showing their efforts to include Crew's team in the talks. After several requests for that document, however, Hausfeld supplied a letter that did not support his claim; written by Lieff to Crew, it was dated Oct. 29, 2001 -- after Hausfeld and Microsoft had gone to Judge Motz with the deal.”

Ultimately, Mr. Hausfeld’s efforts failed, in part due to the continued

objections of attorney Crew. Judge Motz rejected Mr. Hausfeld’s efforts to

secure preliminary approval of a dubious and heavily disputed class action

settlement, objected to by other plaintiffs’ counsel, that envisioned the

creation of a new charitable entity. See In re Microsoft Corp. Antitrust Litig.,

185 F. Supp. 2d 519, 527(D. Md. 2002), stating “the present record establishes

that the Foundation contemplated by the agreement is critically underfunded.”

(emphasis added). In contrast, Mr. Crew ultimately settled his claims just on


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behalf of California residents for more than $1 billion.

Finally, the Dryer Group Plaintiffs assert that due process and the case law

regarding contempt proceedings requires that a full evidentiary record be developed.

This will require documentary and deposition testimony of NFL personnel,

representatives of the Hausfeld firm, their agents including those that authored the emails

cited herein, as well as at least some of the email recipients to gain their understanding of

confidentiality and whether they in turn communicated settlement-related matters to

others.

VI. CONCLUSION.

For the reasons stated herein and in their initial opposition brief, the Dryer Group

Plaintiffs respectfully request that the Court deny the NFL’s Motion, and that if it does not deny

the Motion, that a full evidentiary proceeding be held that provides for the pre-hearing

compilation of relevant discovery from all parties and relevant non-parties.

Dated: December 9, 2012 Respectfully Submitted,

/s/ Robert A. Stein_____________ BOB STEIN LLC Robert A. Stein MN 104930 6473 Beach Road Eden Prairie, MN 55344 Telephone: (952) 829-1043 Facsimile: (952) 829-1040 Email: [email protected] Plaintiffs’ Interim Co-Lead Class Counsel, and Co-Counsel for the Dryer Group Plaintiffs

Jon T. King (Cal. Bar No. 205073; pro hac vice)

856 Walbrook Ct. Walnut Creek, CA 94598 Telephone: (925) 698-1025 Email: [email protected]


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Co-Counsel for Plaintiff Pastorini

Thomas J. Ward, pro hac vice WARD & WARD, P.L.L.C. 2020 N Street, N.W. Washington D.C., 20036 Telephone: (202) 331-8160 Facsimile: (202) 331-9069 Email: [email protected] Co-Counsel for the Dryer Group Plaintiffs


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L.R. 7.1(f) WORD COUNT COMPLIANCE CERTIFICATE

I, Robert A. Stein, certify that the Dryer Plaintiffs Group’s Supplemental Opposition to

Defendant National Football League’s Motion for an Order to Show Cause complies with Local

Rule 7.1(f).

I further certify that, in preparation of this memorandum, I used Microsoft Word for Mac

2011, and that this word processing program has been applied specifically to include all text,

including headings, footnotes, and quotations in the following word count.

I further certify that the above referenced memorandum contains 3,809 words. The prior

brief for which the above referenced memorandum is a supplement contains 5,869 words, for a

total of 9,678 words. Dated: December 9, 2012 Respectfully Submitted,

/s/ Robert A. Stein_____________ BOB STEIN LLC Robert A. Stein MN 104930 6473 Beach Road Eden Prairie, MN 55344 Telephone: (952) 829-1043 Facsimile: (952) 829-1040 Email: [email protected]


dryer supplemental opposition filed dec 10, 2012 on nfl/hausfeld motion to show cause

Documents

dave pears blog

dryer group plaintiffs

additional relevant facts

plaintiff class member

class member

judge motz

relevant facts

due process