Dryer Plaintiffs' Opposition to Preliminary Approval of the Proposed Class Settlement in Dryer vs...

7/29/2019 Dryer Plaintiffs' Opposition to Preliminary Approval of the Proposed Class Settlement in Dryer vs NFL (Films)

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MINNESOTA

John Frederick Dryer,James Lawrence Marshall,Joseph Michael Senser,Elvin Lamont Bethea,Dante Anthony Pastorini, andEdward Alvin White,on behalf of themselves and allothers similarly situated,

Plaintiffs,

v.

National Football League,

Defendant.

Civil No. 09-2182 (PAM/AJB)

THE DRYER PLAINTIFFSOPPOSITION TOPRELIMINARY APPROVALOF THE PROPOSED CLASSSETTLEMENT

CASE 0:09-cv-02182-PAM-AJB Document 264 Filed 03/20/13 Page 1 of 23


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TABLE OF CONTENTS

Page

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INTRODUCTION ............................................................................................................. 1ARGUMENT ..................................................................................................................... 2

PROCEDURAL BACKGROUND. ...................................................................... 2I. TERMS OF THE PROPOSED SETTLEMENT. .................................................. 3II. THE PROPOSED SETTLEMENT IS UNFAIR ON ITS FACEIII.

BECAUSE IT DOES NOT COMPENSATE CLASS MEMBERS. ..................... 5A. The Proposed Settlements Cy Pres Distribution Is Unfair to

the Class Members. .................................................................................... 7

B. A Cy Pres Distribution Is Not Justified in This Case. .......................... 11C. Neither the Common Good Entity Nor the Licensing

Agency Guarantee that Any Class Member Will Benefit fromthe Settlement. ........................................................................................... 13

D. The Proposed Settlement Releases Claims Based on FutureHarms. ........................................................................................................ 15

THE RECORD IS INSUFFICIENT TO COMPARE THEIV.SETTLEMENT VALUE TO POTENTIAL DAMAGES. ................................. 16

CONCLUSION ................................................................................................................ 17



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TABLE OF AUTHORITIES

Page

CasesBuchet v. ITT Consumer Fin. Corp.,

845 F. Supp. 684 (D. Minn. 1994) ............................................................................... 5Fraley v. Facebook, Inc.,

No. C 11-1726 RS, 2012 U.S. Dist. LEXIS 116526 (N.D. Cal. Aug. 17,2012) ............................................................................................................................ 12

In re Airline Ticket Antitrust Litig.,268 F.3d 619 (8th Cir. 2001) .............................................................................. 8, 9, 11

In re Baby Prods. Antitrust Litig.,Nos. 12-1165, 2013 U.S. App. LEXIS 3379 (3d Cir. Feb. 19, 2013) ................... 6, 10

In re Bluetooth Headset Prods. Liability Litig.,654 F.3d 935 (9th Cir. 2011) ........................................................................................ 5

In re Tableware Antitrust Litig.,484 F. Supp. 2d 1078 (N.D. Cal. 2007) ...................................................................... 6

In re Toys R Us Antitrust Litig.,191 F.R.D. 347 (E.D.N.Y. 2000) ................................................................................ 11

In re Uponor, Inc.,No. 11-MD-2247 ADM/JJK, 2012 U.S. Dist. LEXIS 5339 (D. Minn. Jan.18, 2012) ........................................................................................................................ 6

In re Wireless Telephone Federal Cost Recovery Fees Litig. ,396 F.3d 922 (8th Cir. 2005) ........................................................................................ 5

In re Zurn Pex Plumbing Prods. Litig.,No. 08-MDL-1958 ADM/AJB, 2012 U.S. Dist. LEXIS 149738 (D. Minn.Oct. 18, 2012) ................................................................................................................ 6

Klier v. Elf Atochem N. Am., Inc.,658 F.3d 468 (5th Cir. 2011) .................................................................................... 7, 8

Molski v. Gleich,318 F.3d 937 (9th Cir. 2003) ........................................................................................ 6



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TABLE OF AUTHORITIES

(Continued)

Page

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Nachshin v. AOL, LLC,663 F.3d 1034 (9th Cir. 2011) ...................................................................................... 9

Nielson v. Sports Authority,No. C 11-4724 SBA, 2012 U.S. Dist. LEXIS 168226 (N.D. Cal. Nov. 27,2012) ............................................................................................................................ 17

Olson v. Citibank,No. 10-2992 (PAM/JJG), 2012 U.S. Dist. LEXIS 51857 (D. Minn. Apr. 12,2012) ............................................................................................................................ 16

Phillips Petroleum Co. v. Shutts,

472 U.S. 797 (1985) ....................................................................................................... 7Zimmerman v. Zwicker & Assocs., P.C.,

No. 09-3905, 2011 U.S. Dist. LEXIS 2161 (D.N.J. Jan. 10, 2011) ........................... 16

Other AuthoritiesAM.LAW INST.,PRINCIPLES OF THE LAW OF AGGREGATE LITIG., 3.07(2010) ........... 9

MANUAL OF COMPLEX LITIGATION (FOURTH) 21.632 (Fed. Jud. Ctr. 2004) ............. 5

RulesFed. R. Civ. P. 23(e)(2) ...................................................................................................... 5



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INTRODUCTION

The proposed settlement should be denied preliminary approval because it

does not guarantee that the class membersretired NFL playerswill receive

any benefit. On its face, the settlement is unfair to the class members that are

giving up their claims in this case. The amounts paid under the settlement will

go only to undefined charitable organizations, and not to class members in the

form of direct benefits. The NFL has built its Films library on the backs of retired

players, but the proposed settlement does not guarantee the players any benefit

from the complete release of their claims.

Unlike the retired players, the NFL will receive a direct, substantial benefit

from the settlement: each retired player must release all claims he has against the

NFL for uses of his likeness both in the past and at any time in the future, forever.

The value of the past claims released and future uses of publicity rights far

exceeds the direct benefits the class members will receive: nothing.

Plaintiffs and class members John Frederick Dryer, James Lawrence

Marshall, Joseph Michael Senser, Elvin Lamont Bethea, Dante Anthony Pastorini,

and Edward Alvin White (the Dryer Plaintiffs) therefore oppose preliminary

approval of the proposed Settlement Agreement filed on March 18, 2013 (Dkt.

#262-1, the Proposed Settlement). The Dryer Plaintiffs are the original

plaintiffs which initially filed this action against the NFL to remedy the NFLs



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unauthorized use of retired players likenesses and publicity rights. They have

prosecuted their cause on behalf of the class for over three years, and now

oppose the Proposed Settlement because it does not benefit the class.

In addition, no damages discovery has taken place. The settling parties

have not provided any basis to believe that the total settlement amount is fair or

reasonable compared to the value of the class members claims. This omission is

complicated further by the fact that the class members must release all of their

claims that might arise in the future. The Dryer Plaintiffs therefore respectfully

request that the Court deny preliminary approval. They request oral argument

at the preliminary approval hearing on March 22, 2013.

ARGUMENT

PROCEDURAL BACKGROUND.I.

This class action was originally filed by the Dryer Plaintiffs on August 20,

2009. Dkt. #1. In 2011, two additional putative class actions were filed and

consolidated with this action. Dkt. #141, #142.

Several settlement conferences were held from June through November

2012. Dkt. #187, #195, #221, #228. On December 12, 2012, the Court issued an

order staying the litigation and appointing Daniel E. Gustafson of Gustafson

Gluek PLLC Lead Settlement Counsel for the putative class. Dkt. #250.



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On February 25, 2013, the Court issued an order announcing that Mr.

Gustafson and counsel for the NFL had reached an agreement in principle on

the key terms of a settlement. Dkt. #256 at 2. Mr. Gustafson filed an amended

complaint, the proposed settlement, and a motion for preliminary approval on

March 18, 2013. Dkt. #258-262.

TERMS OF THE PROPOSED SETTLEMENT.II.

The NFL has agreed to pay up to $50 million under the Proposed

Settlement, divided as follows: the NFL will contribute up to a total of $42

million over the course of eight years to a Common Good Fund for charitable

uses, $450,000 into escrow for notice and administration expenses, and $7.55

million into escrow for attorneys fees for counsel representing the settling

plaintiffs. Proposed Settlement II.A.1, II.B.1. The NFL is allowed to deduct up

to $13.5 million from its Common Good Fund contributions to pay for expenses

arising from litigation with class members that opt out of the settlement, id.

II.A.3, leaving $28.5 million for the Common Good Fund.

The proposed settlement class includes retired NFL players and their heirs.

Proposed Settlement I.E.6 (defining Class Member), I.E.44 (defining

Retired Player). In exchange for the NFLs charitable donation and

contribution to attorneys fees, class members release (1) all claims against the

NFL and its related entities for the NFLs past uses of publicity rights; and (2) all



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past and future claims arising from the use of publicity rights to promote the

NFL, whether by the NFL, its related entities, or third parties authorized to use

NFL game footage. Id. I.E.43 (defining Released Parties), III.A.1-2 (defining

the scope of release). Class members also covenant not to contest the NFLs

exclusive rights to license or sell game footage, to any party. Id. III.C.4.

The Proposed Settlement will create two new entities: a Licensing

Agency and a Common Good Entity. Proposed Settlement IV.A, IV.F. The

Licensing Agency will have the ability to license class members publicity rights

to non-NFL parties going forward. Id. IV.C. Class members are not

guaranteed any revenue from the prospective activities of the Licensing Agency.

To establish the Licensing Agency, $50,000 of initial expenses may be paid from

the class notice and administration escrow funds, and additional expenses may

be paid from the attorneys fees escrow funds, but not until after attorneys fees

and other expenses are paid. Id. II.B.1, II.B.3.

The Common Good Entity will administer the Common Good Fund into

which the NFL will pay the settlement funds. Proposed Settlement IV.F.1. The

Common Good Entity may distribute funds from the Common Good Fund only

to (i) charitable organizations; (ii) other not-for-profit organizations; and

(iii) health and welfare organizations, and only for indirect or direct use by

such organizations for Fund Charitable Uses. Id. IV.F.5.(a), (c). Fund



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Charitable Uses include uses for purposes such as medical research, housing,

health and dental insurance, mental health programs, and career transition

programs. Id. IV.F.5.(c).

If the Common Good Entity does not distribute all of the Common Good

Fund within two years of the final payment into the fund by the NFL, the

remaining funds revert to the NFL, which itself will use the funds for Fund

Charitable Uses. Proposed Settlement IV.F.9. The Common Good Entity does

not have authority to distribute benefits from the Common Good Fund directly

to class members for their claims in this matter. Id. IV.F.5.(a).

THE PROPOSED SETTLEMENT IS UNFAIR ON ITS FACE BECAUSEIII.IT DOES NOT COMPENSATE CLASS MEMBERS.

Before granting preliminary approval of the proposed settlement, the

Court must conduct a preliminary analysis of fairness, reasonableness, and

adequacy under Fed. R. Civ. P. 23(e)(2). MANUAL OF COMPLEX LITIGATION

(FOURTH) 21.632 (Fed. Jud. Ctr. 2004). [T]he district court acts as a fiduciary,

serving as a guardian of the rights of absent class members. In re Wireless

Telephone Federal Cost Recovery Fees Litig., 396 F.3d 922, 932 (8th Cir. 2005). In

addition, increased scrutiny should be applied to the Proposed Settlement

because a class has not yet been certified. See, e.g., Buchet v. ITT Consumer Fin.

Corp., 845 F. Supp. 684, 691 (D. Minn. 1994); In re Bluetooth Headset Prods. Liability

Litig., 654 F.3d 935, 946-47 (9th Cir. 2011) (explaining [p]rior to class certification,



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there is an even greater potential for a breach of fiduciary duty owed the class

during settlement, and citing precedent from the Second, Third, and Seventh

Circuits).

Preliminary approval should be denied if a proposed settlement contains

obvious deficiencies. SeeIn re Tableware Antitrust Litig., 484 F. Supp. 2d 1078,

1079 (N.D. Cal. 2007) (internal quotation omitted); In re Zurn Pex Plumbing Prods.

Litig., No. 08-MDL-1958 ADM/AJB, 2012 U.S. Dist. LEXIS 149738, at *7 (D. Minn.

Oct. 18, 2012) (granting preliminary approval where there are no obvious

deficiencies in the proposed Agreement); In re Uponor, Inc., No. 11-MD-2247

ADM/JJK, 2012 U.S. Dist. LEXIS 5339, at *3 (D. Minn. Jan. 18, 2012) (same). The

Proposed Settlement contains an obvious deficiency: it does not provide direct

benefits to class members for their claims, but it requires class members to

release all such claims arising from all past and future conduct of the NFL.

Instead of providing benefits directly to class members, the proposed

settlement makes a cy pres distribution to a charitable organization. As part of

the fairness evaluation for a settlement with a cy pres provision, the Court should

consider the degree of direct benefit to the class. In re Baby Prods. Antitrust Litig.,

Nos. 12-1165, 12-1166, & 12-1167, 2013 U.S. App. LEXIS 3379, at *23-24 (3d Cir.

Feb. 19, 2013);Molski v. Gleich, 318 F.3d 937, 954 (9th Cir. 2003) (Intertwined

with our finding that the settlement agreement was unfair is the fact that the cy



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pres award in this case replaced the claims for actual and treble damages of

potentially thousands of individuals.). Here, the degree of direct benefit to the

class is zero.

The failure to compensate class members is not the only deficiency in the

proposed settlement. It is, however, sufficient to justify denial of preliminary

approval. Because preliminary approval should be denied for this reason alone,

and based on the short schedule between the filing of the proposed settlement

and the deadline for filing objections to preliminary approval, the Dryer

Plaintiffs reserve their additional reasons for opposition to the proposed

settlement at this time.

A. The Proposed Settlements Cy Pres Distribution Is Unfair to theClass Members.

Each class member has a constitutionally recognized property right in his

claim alleged in the case. 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)). Settlement proceeds in a class action are generated from the value of the

class members claims, which they release as part of the settlement. Klier, 658

F.3d at 474. The settlement proceeds, therefore belong solely to the class

members. Id. Failing to use the proceeds to provide direct benefits to the class

divests the class members of their constitutional property rights and is

fundamentally unfair.



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The Proposed Settlement does not distribute the proceeds to class

members in any form of direct benefits. Proposed Settlement IV.F.5.(a). In fact,

it explicitly prohibits class members from making claims for common fund

distributions, providing that funds may be disbursed only to (i) charitable

organizations; (ii) other not-for-profit organizations; and (iii) health and welfare

organizations. Id. These organizations are amorphous and not defined

anywhere in the Proposed Settlement. This arrangement, on its face, is unfair to

class members.

Because the proposed settlement distributes funds to charity, it is a cy pres

distributionone for the indirect, prospective benefit of the class. In re Airline

Ticket Antitrust Litig., 268 F.3d 619, 625 (8th Cir. 2001). Cy pres, meaning as near

as possible, originated as a rule of construction to save a testamentary

charitable gift that would otherwise fail. Id. In the law of trusts, cy pres allowed

the next best use of the funds to satisfy the testators intent. Id. (emphasis

added). By definition, therefore, in the class settlement context, a cy pres

distribution is only the next best use of the settlement fundsa direct distribution

to class members is best. SeeKlier, 658 F.3d at 475 (A cy pres distribution puts

settlement funds to their next-best use by providing an indirect benefit to the

class.). But that option is available only if it is not possible to put those funds

to their very best use: benefiting the class members directly. Id. The proposed



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charitable distributions here frustrate, not fulfill, the class members intent in this

actionto be compensated for the NFLs use of their likenesses.

Indeed, as the Eighth Circuit has recognized, a class settlement premised

upon a cy pres distributions is only appropriate in limited circumstances, such as

where class members are difficult to identify or where they change constantly.

In re Airline Ticket Antitrust Litig., 268 F.3d at 625. The American Law Institute

has similarly set forth criteria for determining whether a cy pres award is

appropriate, including [i]f individual class members can be identified through

reasonable effort, and the distributions are sufficiently large to make individual

distributions economically viable, settlement proceeds should be distributed to

individual class members, and not to cy pres recipients. AM.LAW INST.,

PRINCIPLES OF THE LAW OF AGGREGATE LITIG., 3.07(2010). Thus, [t]he cy pres

doctrine allows a court to distribute unclaimed or non-distributable portions of a

class action settlement fund to the next best class of beneficiaries. Nachshin v.

AOL, LLC, 663 F.3d 1034, 1036 (9th Cir. 2011) (emphasis added; citation omitted).

Most judicial opinions addressing cy pres distributions arise where

settlement funds remain unclaimed after class members have been compensated.

In re Airline Ticket Antitrust Litig., 268 F.3d at 625. Even in that situation, however,

cy pres distributions of unclaimed funds have been controversial in the courts of

appeals. Id. Those cases, of course, share a common element that is missing



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from the Proposed Settlement here: direct benefits to class members in exchange

for releasing their claims.

Here, the Proposed Settlements cy pres distribution to the Common Good

Fund is unfair on its face. The Third Circuits February 2013 Baby Products

opinion describes in detail the potential unfairness of a cy pres distribution in a

class settlement. In re Baby Prods. Antitrust Litig., 2013 U.S. App. LEXIS 3379. The

court of appeals found that the district court abused its discretion by approving a

class settlement without knowing the balance of compensation between

payments to class members and cy pres distributions to charities. Id. at *7-8, *43.

$35.5 million was contributed to a settlement fund, and $14 million was set aside

for attorneys fees. Id. at *6-7. By the time the claims process was nearly finished,

it was expected that only $3 million would be distributed to class members,

leaving $18.5 million for cy pres distributions. Id. at *7. The Third Circuit

remanded to reconsider the fairness to the class because the district court had not

considered the amount of the fund that would be distributed to cy pres

beneficiaries rather than being distributed directly to the class. Id. at *7, *24-25.

Unlike the Baby Products settlement, the proposed settlement in this matter

guarantees that class members will receive zero benefit for their alleged injuries

in the past and future while 100 percent of the Common Good Fund will go to cy

pres distributions. Baby Products suggests that a disproportionate cy pres



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distribution compared to direct class benefits may be unfair. There is no greater

disproportion than that proposed in this matter. The Dryer Plaintiffs request that

preliminary approval be denied because the Proposed Settlements cy pres

distribution is unfair to the class members.

B. A Cy Pres Distribution Is Not Justified in This Case.

This case does not justify a pure cy pres settlement. The class members are

identifiablethe NFL is a relatively exclusive club. In fact, the Proposed

Settlement suggests that direct mail and email notice will be given to class

members, Proposed Settlement V, and the settling plaintiffs motion for

preliminary approval does not assert that class members cannot be identified.

This matter, therefore, does not fit the criteria justifying a pure cy pres

distribution under the Eighth Circuits examples of situations where class

members are difficult to identify or where they change constantly or under any

other precedent. In re Airline Ticket Antitrust Litig., 268 F.3d at 625.

Courts approving pure cy pres distributions in class settlements have done

so for large classes made up of consumers. In these cases, class members are

difficult, if not impossible, to identify, and the costs of distributing the settlement

proceeds outweigh the benefit to each class member. See, e.g., In re Toys R Us

Antitrust Litig., 191 F.R.D. 347, 353-54 (E.D.N.Y. 2000) (explaining difficulty in

identifying toy purchasers and limited relief per claimant); cf. Fraley v. Facebook,



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Inc., No. C 11-1726 RS, 2012 U.S. Dist. LEXIS 116526, at *4-5 (N.D. Cal. Aug. 17,

2012) (denying preliminary approval based on high proportion of attorneys fees

to settlement value, but finding that cy pres distribution may be appropriate for

70 million Facebook users).

In this case, the class is made up of a defined number of retired NFL

players. It is not a shifting class of consumers. And the $28.5 million to $42

million in Common Good Fund proceeds could be used to fund a claims process

for members of the class to receive some type of direct benefit, whether in the

form of direct payment, health benefits, insurance or the like. The settling

plaintiffs unsupported assertion that per capita payments would have resulted

in low payments to each Class Member does not allow the settling parties to

deny the class members any claim to a direct benefit. Instead, it suggests that the

total value of the settlement may be unfair. Although the Proposed Settlements

suggested uses for the Common Good Fund are honorable, IV.F.5.(c), the

benefits should be provided directly to class members, not to charities.

A pure cy pres distribution, therefore, is not justified under any established

precedent. Because direct distributions of benefits to class members are strongly

preferred to cy pres distributions, and this case has no justification for a cy pres

distribution, the Proposed Settlement is unfair on its face. The Dryer Plaintiffs

request that preliminary approval be denied.



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C. Neither the Common Good Entity Nor the Licensing AgencyGuarantee that Any Class Member Will Benefit from theSettlement.

The Proposed Settlement is fundamentally unfair because it distributes

funds only to the charitable fund managed by the Common Good Entity and

does not provide direct benefits to class members. But the charitable

contribution itself is also fundamentally unfair because it does not guarantee that

class members will even indirectly benefit from the settlement.

The Proposed Settlement suggests that the Common Good Entity will

manage the settlement proceeds to benefit retired players, but even this

hypothetical contains several holes. For example, the Common Good Entity can

disburse settlement proceeds to any non-for-profit organizations for other

uses as agreed to by the Board of Directors of the Common Good Entity,

Plaintiffs Lead Settlement Counsel, and the NFL. Proposed Settlement

IV.F.5.(a).(ii), IV.F.5.(c).(ix). In theory, this structure could result in all

proceeds being disbursed back to the NFLit is a non-profit organization. Even

the proposed cy pres distribution contains no guarantee that the proceeds will be

used for charitable purposes, let alone purposes actually benefitting the

individuals whose rights are being released forever.

The Proposed Settlement also contains no timeline for disbursing

settlement funds. It does however, provide that unused funds will revert back to



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the NFL to spend on its own selected charitable uses, again with no timeline for

distribution. Proposed Settlement IV.F.9. The Proposed Settlement does not

guarantee that any player will ever receive a benefit from the settlement funds.

The Licensing Agency created by the Proposed Settlement does not change

the purely cy pres nature of the settlement. By agreeing to the creation of a

Licensing Agency, the NFL has recognized that the class members publicity

rights have value. But the Licensing Agency will not compensate class members

for any NFL use of their publicity rights, which is the injury alleged in this case.

Any revenue the Licensing Agency achieves will come from unrelated parties,

not from the NFL. The settling plaintiffs have not submitted any expected

revenues for the Licensing Agency; they have provided no basis to determine its

alleged economic benefit to the class members.

The Licensing Agency potentially will be competing with the NFLs own

licensing of game footage. If the Court approves the covenant not to sue in the

Proposed Settlement, the NFL will be able to license game footage as it sees fit,

from its extensive library. The only game footage available to the Licensing

Agency under the Proposed Settlement is a set of five-second clips which may be

used only to advertise the Licensing Agency itself, not to license to potential

customers. Id. IV.D.1.e.



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Finally, if the Licensing Agency achieves any revenue, that revenue will

not closely match the value of the Class Members publicity rights, as the

settling plaintiffs have asserted. Dkt. #261 at 23. Licensing Agency revenues

will relate only to the promotion of third-party products. But the class members

claims relate to the use of their identities to promote NFL Football, a product

which depends heavily on its history. The alleged benefit provided by the

Licensing Agency is not only hypotheticalit is illusory.

The proposed licensing agency therefore does not cure the Proposed

Settlements obvious deficiency of failure to provide benefits to class members.

Any benefit that class members might obtain from the Licensing Agency is

purely speculative. It is unfair to class members to merely hope that they are

able to license their likenesses in the future while refusing to provide them with

direct benefits out of the $28.5 million to $42 million the NFL has agreed to pay.

D. The Proposed Settlement Releases Claims Based on Future Harms.

The unfairness of the pure cy pres distribution in this case is magnified by

the scope of the release required from the class. In exchange for nothing, the

class members must give up not only their claims arising from the NFLs past

conduct which constitute this action. Proposed Settlement III.A.1. They also

must release the NFL and its authorized licensees to use their likenesses going

forward, in perpetuity. Proposed Settlement III.A.2. This release further



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demonstrates the unfairness of the proposed settlement and additional

justification to deny preliminary approval. SeeZimmerman v. Zwicker & Assocs.,

P.C., No. 09-3905, 2011 U.S. Dist. LEXIS 2161, at *10-21 (D.N.J. Jan. 10, 2011)

(denying preliminary approval for obvious deficiency based on lack of direct

benefit to class members, cy pres distribution, and overbroad release).

THE RECORD IS INSUFFICIENT TO COMPARE THE SETTLEMENTIV.VALUE TO POTENTIAL DAMAGES.

In addition to the fundamental unfairness of the cy pres distribution in the

proposed settlement, preliminary approval should be denied because the record

in this case has not been developed sufficiently to determine whether the total

amount of the Proposed Settlement falls within the range of possible settlement

suitable for final judicial approval. Olson v. Citibank, No. 10-2992 (PAM/JJG),

2012 U.S. Dist. LEXIS 51857, at *2 (D. Minn. Apr. 12, 2012) (Magnuson, J.). The

settling plaintiffs emphasize that this is the sole issue for the Courts fairness

evaluation, Dkt. #261 at 19, but they have not offered any valuation of the class

members claims. A conclusory assertion that the settlement value is fair does

not establish a sufficient record to grant even preliminary approval. See, e.g.,

Nielson v. Sports Authority, No. C 11-4724 SBA, 2012 U.S. Dist. LEXIS 168226, at

*15-16 (N.D. Cal. Nov. 27, 2012) (denying preliminary approval where the

plaintiff fail[ed] to proffer sufficient information for the Court to determine

whether the settlement falls within the range of possible approval).



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In fact, full damages discovery has not yet been allowed, Dkt. #65 at 2, 9-10,

and it is therefore premature to determine whether the amount of the Proposed

Settlement is within a suitable range as compared to the value of the class

members released claims. The settling parties and the Court do not have

sufficient information to evaluate whether a payment of $28.5 to $42 million to

charity is a fair exchange for the release of all retired NFL players past and

future claims for the NFLs use of their likenesses. The Dryer Plaintiffs therefore

request that preliminary approval be denied on this additional basis.

CONCLUSION

The Proposed Settlement is fundamentally unfair because it provides only

for, at best, a cy pres distribution and no direct benefits to class members. It

therefore suffers from an obvious deficiency such that even preliminary

approval should be denied. The Dryer Plaintiffs, therefore, respectfully request

that the Court deny the motion for preliminary approval. They further request

oral argument at the preliminary approval hearing on March 22, 2013.



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Dated: March 20, 2013 ROBINS, KAPLAN, MILLER & CIRESI L.L.P.

By: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 Plaza800 LaSalle AvenueMinneapolis, MN 55402-2015Phone: (612) 349-8500Fax: (612) [email protected]@rkmc.com

[email protected]@rkmc.com

Robert A. Stein (MN Bar No. 104930)BOB STEIN LLC10125 Crosstown Circle, #200Eden Prairie, MN 55344Phone: (952) 829-1043Fax: (952) 829-1040

[email protected]

Thomas J. WardWARD & WARD, P.L.L.C.2020 N Street, N.W.Washington, D.C. 20036Telephone: (202) 331-8160Fax: (202) [email protected]

Attorneys for PlaintiffsJohn Frederick Dryer,James Lawrence Marshall,Joseph Michael Senser,Elvin Lamont Bethea,Dante Anthony Pastoriniand Edward Alvin White



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Jon T. King (pro hac vice)856 Walbrook Ct.Walnut Creek, CA 94598Phone: (925) [email protected]

Attorney for PlaintiffDante Anthony Pastorini


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