Case 1:12-cv-03704-SAS Document 509-1 Filed 01/20/16 Page 1 of 30

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FERNANDA GARBER, MARC
LERNER, DEREK RASMUSSEN,
ROBERT SILVER, GARRETT TRAUB,
and VINCENT BIRBIGLIA, representing
themselves and all others similarly situated

Civil Action No. 12-cv-3704 (SAS)

Plaintiffs,
v.
OFFICE OF THE COMMISSIONER OF
BASEBALL, et al.,
Defendants.
CLASS ACTION SETTLEMENT AGREEMENT
This Class Action Settlement Agreement (the “Agreement”) is made and entered into as
of this 19th day of January 2016, by and among Plaintiffs Marc Lerner, Derek Rasmussen,
Garrett Traub, and Vincent Birbiglia (collectively, “Named Plaintiffs”), on behalf of themselves
and all other Class Members (collectively, “Plaintiffs” or “Class Members,” each a “Class
Member”), and Defendants Office of the Commissioner of Baseball, Major League Baseball
Properties Inc., as successor by merger to Major League Baseball Enterprises Inc., MLB
Advanced Media L.P., MLB Advanced Media, Inc., Athletics Investment Group, LLC, the
Baseball Club of Seattle, L.L.L.P., Chicago Cubs Baseball Club, LLC, Chicago White Sox, Ltd.,
Colorado Rockies Baseball Club, Ltd., The Phillies, Pittsburgh Baseball, Inc., San Francisco
Baseball Associates, L.L.C., New York Yankees Partnership, Yankees Entertainment and Sports
Network, LLC, Comcast Corporation, Comcast SportsNet California, LLC, Comcast SportsNet
Chicago, LLC, Comcast SportsNet Philadelphia, L.P., DIRECTV, LLC, DIRECTV Sports
Networks, LLC, DIRECTV Sports Net Pittsburgh, LLC d/b/a Root Sports Pittsburgh (“Root

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Sports Pittsburgh”), DIRECTV Sports Net Rocky Mountain, LLC d/b/a Root Sports Rocky
Mountain (“Root Sports Rocky Mountain”), and DIRECTV Sports Net Northwest, LLC d/b/a
Root Sports Northwest (“Root Sports Northwest”) (collectively, “Defendants”), each of the
foregoing Parties acting by and through their respective counsel. By this Agreement, subject to
Court approval, Plaintiffs and Defendants intend to fully and finally compromise, release,
resolve, discharge, and settle the Released Claims subject to the terms and conditions set forth in
this Agreement.
WHEREAS, Plaintiffs have alleged in their Second Amended Class Action Complaint
(“CAC”) that Defendants engaged in certain conduct in violation of Sections 1 and 2 of the
Sherman Act, 15 U.S.C. §§ 1–3;
WHEREAS, the Court certified a class seeking injunctive relief under Federal Rule of
Civil Procedure 23(b)(2), but denied certification of a class seeking damages under Federal Rule
of Civil Procedure 23(b)(3);
WHEREAS, Defendants dispute and deny each and every one of the claims alleged in the
CAC or any prior complaint both as to the facts and the law, deny all liability to Plaintiffs and
the other Class Members, have not conceded or admitted any liability, and intend to continue
with a vigorous defense of this Action in the event this Agreement is not approved by the Court;
WHEREAS, Defendants, through their counsel, and Plaintiffs, through their counsel and
on behalf of themselves and the other Class Members, have engaged in vigorous, arm’s-length
negotiations, including participating in private mediation with a retired United States District
Court Judge, that led to this Agreement, which embodies all of the terms and conditions of the
Settlement among the Parties, subject to approval of this Agreement by the Court;

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WHEREAS, all Parties are entering into this Agreement to settle and resolve all of the
Released Claims; to avoid the uncertainties and risks of trial; and to avoid further expense,
inconvenience, and the distraction of burdensome and protracted litigation; and to obtain the
releases, orders, and judgments contemplated by this Agreement so as to put to rest totally and
finally the matters raised by Plaintiffs;
WHEREAS, Plaintiffs and Defendants agree that this Agreement shall not be deemed or
construed to be an admission or evidence of any violation of any statute or law or of any liability
or wrongdoing by Defendants or of the truth of any of the claims or allegations in the CAC or
any prior complaint, nor any admission or evidence of any shortcomings in the factual or legal
claims and allegations therein;
WHEREAS, Plaintiffs and their counsel agree that this Agreement is fair, reasonable, and
adequate with respect to the interests of Plaintiffs, and should be approved by the Court pursuant
to Federal Rule of Civil Procedure 23(e);
NOW, THEREFORE, in consideration of the premises and mutual promises, covenants,
and warranties contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which the Parties now acknowledge, and intending to be legally bound,
the Parties agree as follows:
I.

Definitions
1.

“Action” means the above-captioned matter.

2.

“Authenticate” or “Authenticated” or “Authentication” means to verify that an

end user is a bona fide subscriber to the applicable RSN via an MVPD.
3.

“Class” or “Class Members” or “Plaintiffs” means all individuals in the United

States who purchased television service from Comcast and/or DIRECTV, which included MLB
Extra Innings, and/or who purchased MLB.TV from the MLB Defendants or their subsidiaries, at
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any time between May 9, 2008, and the date on which Plaintiffs file a motion for Preliminary
Approval. The Class includes the Named Plaintiffs Marc Lerner, Derek Rasmussen, Garrett
Traub, and/or Vincent Birbiglia.
4.

“Class Counsel” means the counsel appointed by the Court to represent the Class

in the Action.
5.

“Club” means one of the thirty (30) member Clubs of MLB.

6.

“Comcast” means Comcast Corporation and its affiliates, subsidiaries, and

successors that offer MVPD service. For the avoidance of doubt, “Comcast” as defined here
does not include any Regional Sports Networks (“RSNs”).
7.

“Comcast Defendants” means Comcast Corporation; Comcast SportsNet

California, LLC; Comcast SportsNet Chicago, LLC; and Comcast SportsNet Philadelphia, L.P.
8.

“Comcast RSNs” means Comcast SportsNet California, LLC; Comcast SportsNet

Chicago, LLC; Comcast SportsNet Philadelphia, L.P.; and SportsChannel Pacific Associates (t/a
Comcast SportsNet Bay Area).
9.

“COLA” means the annual Cost of Living Adjustment for a given year, as

determined by the United States Social Security Administration.
10.

“Court” means the United States District Court for the Southern District of New

11.

“Defendants” means the MLB Defendants, Comcast Defendants, DIRECTV

York.

Defendants, and Yankees Entertainment and Sports Network, LLC.
12.

“DIRECTV” means DIRECTV, LLC and its affiliates, subsidiaries, and

successors that offer MVPD service. For the avoidance of doubt, “DIRECTV” as defined here
does not include any Regional Sports Networks (“RSNs”).

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13.

“DIRECTV Defendants” means DIRECTV, LLC; DIRECTV Sports Networks,

LLC; Root Sports Pittsburgh; Root Sports Rocky Mountain; and Root Sports Northwest.
14.

“DIRECTV RSNs” means Root Sports Northwest, Root Sports Pittsburgh, Root

Sports Rocky Mountain, and DIRECTV Sports Net Southwest, LLC d/b/a Root Sports
Southwest (“Root Sports Southwest”).
15.

“Effective Date” means the date on which either (a) the time to appeal from the

Final Approval Order has expired without an appeal being filed, or (b) the Final Approval Order
has been affirmed in its entirety by the court of last resort to which such appeal has been taken
and such affirmance is no longer subject to further appeal or review.
16.

“Fairness Hearing” means the hearing held by the Court at which the Court will

consider evidence and argument for the purposes of determining whether the Settlement
encompassed by this Agreement and its Exhibits should be granted Final Approval, whether all
claims against Defendants should be dismissed with prejudice, and whether a Final Judgment
should be entered.
17.

“Final Approval” means issuance of the Final Approval Order.

18.

“Final Approval Date” means the date on which the Court issues the Final

Approval Order.
19.

“Final Approval Order” means an order pursuant to Rule 23(e) of the Federal

Rules of Civil Procedure finally approving the terms of a settlement with the terms as set forth in
this Agreement, without any modification or addition to which any Party does not consent,
dismissing with prejudice all claims against the Defendants, and directing the Clerk of the Court
to enter Final Judgment. Notwithstanding the foregoing, the Parties agree that an award by the

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Court of an amount less than that requested by Plaintiffs of any attorneys’ fees, costs or service
awards shall not affect whether an order constitutes a Final Approval Order.
20.

“Final Judgment” means entry of a final judgment pursuant to Rule 58 of the

Federal Rules of Civil Procedure that complies with Rule 23(c)(3) of the Federal Rules of Civil
Procedure and that dismisses the Action and all claims therein on the merits with prejudice as to
all Class Members, except that it shall not bind any Class Member with respect to claims for
damages if such Class Member files a timely and valid exclusion that is allowed by the Court.
21.

“HTT” means a Home Television Territory as that term is defined in MLB

documents.
22.

“IMS” or “In-Market Streaming” means distribution through the Internet of Local

Game Telecasts within a Club’s HTT.
23.

“In-Market Club” means a Club whose HTT includes the subscriber’s residence.

24.

“In-Market” means within a respective Club’s HTT.

25.

“In-Market RSN” means an RSN that exhibits games of an In-Market Club within

that Club’s HTT.
26.

“Local Game Telecast” means a live game telecast produced by or on behalf of

the RSN as authorized by a particular Club for distribution within that Club’s HTT.
27.

“MASN” means TCR Sports Broadcasting Holding, LLP.

28.

“MLB” means Major League Baseball.

29.

“MLB Defendants” means the Office of the Commissioner of Baseball; Major

League Baseball Properties Inc., as successor by merger to MLB Enterprises, Inc.; MLB
Advanced Media L.P.; MLB Advanced Media, Inc.; Athletics Investment Group, LLC; the
Baseball Club of Seattle, L.L.L.P.; Chicago Cubs Baseball Club, LLC; Chicago White Sox, Ltd.;

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Colorado Rockies Baseball Club, Ltd.; The Phillies; Pittsburgh Baseball, Inc.; San Francisco
Baseball Associates, L.L.C.; and New York Yankees Partnership.
30.

“MLB Extra Innings” means the consumer product that historically has been

offered to MVPD customers enabling them to view, through their MVPD service, Local Game
Telecasts designated as “Out-of-Market” by MLB and its Clubs.
31.

“MLB Extra Innings Package” means the MLB Extra Innings offering that

historically has been offered to MVPD customers and includes the Local Game Telecasts of all
MLB Clubs, subject to blackout restrictions.
32.

“MLB Season” means an MLB regular season.

33.

“MLB.TV” means the consumer product that historically has been offered to

consumers enabling them to view, over the Internet, Local Game Telecasts designated as “Outof-Market” by MLB and its Clubs.
34.

“MLB.TV Package” means the MLB.TV offering that has historically been

offered to consumers and includes the Local Game Telecasts of all MLB Clubs, subject to
blackout restrictions.
35.

“MVPD” means a multichannel video programming distributor, including but not

limited to Comcast Corporation and certain of its affiliates and DIRECTV.
36.

“NESN” means New England Sports Network Limited Partnership.

37.

“Notice” means the notices of Settlement to Class Members, which are attached

hereto as Exhibits C and D and described in the Notice Plan.
38.

“Notice Plan” means the plan for disseminating the Notice to Class Members,

attached as Exhibit B.
39.

“Out-of-Market” means outside a respective Club’s HTT.

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40.

“Out-of-Market Club” means a Club whose HTT does not include the

subscriber’s residence.
41.

“Parties” means the Defendants, the Plaintiffs, or the Class.

42.

“Release” means the provisions releasing the claims, which provisions are

embodied in Section IX.
43.

“Released Claims” means any and all claims released pursuant to Section IX.

44.

“Released Parties” means the Defendants, all MLB member Clubs that are not

named as Defendants in the Action, 21st Century Fox and all 21st Century Fox RSNs; and,
provided that each separately agrees to be bound by Paragraph 58 below and Paragraph 60 below
to the same extent as the Comcast RSNs, DIRECTV RSNs, and 21st Century Fox RSNs, MASN,
NESN, SNY, and SportsNet LA; as well as all of the foregoing entities’ respective direct and
indirect past, present and future parents, predecessors-in-interest or title, successors-in-interest or
title, subsidiaries, and other affiliates, and each of their respective executives, officers, directors,
employees, shareholders, owners, principals, members, managers, agents, attorneys, servants,
representatives, and the predecessors, successors, heirs, executors, administrators, and assigns of
each of them.
45.

“Releasors” means each and every Named Plaintiff, the Class, and all individual

members of the Class.
46.

“RSN” means a Regional Sports Network, including but not limited to any

Comcast RSN, DIRECTV RSN or 21st Century Fox RSN.
47.

“Settlement” means the resolution and disposition of the Action in accordance

with the terms and provisions of this Agreement.

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48.

“Single-Club Package” means an offering to consumers of Single-Club

Programming enabling them to view Local Game Telecasts of a single Out-of-Market Club.
49.

“Single-Club Programming” means Local Game Telecasts made available via the

Internet or an MVPD that is substantially identical to the programming on MLB.TV or MLB
Extra Innings, respectively, that is offered on a disaggregated basis such that consumers can
purchase the Local Game Telecasts of any one Out-of-Market Club on a season-long basis
without purchasing the Local Game Telecasts of another Club.
50.

“SNY” means Sterling Entertainment Enterprises, LLC (t/a SportsNet New

51.

“SportsNet LA” means American Media Productions, LLC.

52.

“YES” means the Yankees Entertainment and Sports Network, LLC.

53.

“21st Century Fox” means 21st Century Fox, Inc., Fox Sports Net, Inc., and Fox

York).

Sports Interactive Media, LLC, and each of their direct and indirect present and future parents
affiliates, subsidiaries, and successors that own or control RSNs.
54.

“21st Century Fox RSNs” means YES; Fox Sports Net Arizona, L.P.; Fox Sports

Net Detroit, LLC; Fox Sports Net Florida, Inc.; Fox Sports Net St. Louis LLC; Fox Sports Net
North, LLC; Fox Sports Net Ohio, LLC; SoCal SportsNet LLC; SportSouth Network, LLC;
SportSouth Network II, LLC; ARC Holding Ltd.; Sunshine Network, Inc.; Fox Sports Net West,
LLC; Fox Sports Net West 2, LLC; and Fastball Sports Productions, LLC.
II.

Relief
55.

Internet Single-Club Programming
a.

MLB will offer Single-Club Programming via the Internet for each and

every Club. Such Single-Club Programming will include all of that Club’s Local Game
Telecasts that are included in the MLB.TV Package and will be subject to existing blackout rules
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as well as the same policies, limitations, and MLB rules as applicable to the then-existing
MLB.TV Package.
b.

MLB will set the consumer price of all full-season Internet Single-Club

Packages at $84.99 for the 2016 MLB Season. Thereafter, for the remainder of the term for
which this Paragraph 55 is in effect, MLB may increase the price of Internet Single-Club
Packages on an annual basis by not more than 3% or that year’s COLA, whichever is greater in
that particular year.
c.

Subject to MLB’s national telecast contracts and the availability of game

feeds, MLB agrees that it will continue to offer MLB.TV in substantially the same package form
while this Paragraph 55 is in effect.
d.

The requirements of this Paragraph 55 will terminate as of the end of the

2020 MLB Season. MLB agrees to implement its obligations under this Paragraph 55 beginning
with the 2016 MLB Season.
e.

MLB will give reasonable publicity to the Single-Club Programming,

including prominently offering Single-Club Packages as alternatives to MLB.TV at the website
points of sale.
56.

Television Single-Club Programming
a.

During the current and potential future terms of the MLB Extra Innings

distribution agreements with Comcast and DIRECTV, MLB will consent to the sale of television
Single-Club Programming by Comcast and DIRECTV for each and every Club, in addition to
the distribution of MLB Extra Innings Packages by Comcast and DIRECTV, via cable and
satellite, respectively. Any such Single-Club Programming sold by Comcast or DIRECTV will
include all of the same Local Game Telecasts of a particular Club that are included in the MLB

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Extra Innings Package and will be subject to existing blackout rules as well as the same policies,
limitations, and MLB rules as applicable to the then-existing MLB Extra Innings Package.
Neither Comcast nor DIRECTV is obligated to offer for sale to consumers the television SingleClub Programming. However, if Comcast or DIRECTV offers a television Single-Club Package
for any individual Club, it must offer a television Single-Club Package for each and every Club.
b.

If Comcast or DIRECTV chooses to offer television Single-Club

Programming pursuant to paragraph 56(a) above, it will set the residential consumer price of
each television Single-Club Package at no more than 80% of the residential consumer price of
the full-season MLB Extra Innings Package offered by that MVPD.
c.

Nothing in this Agreement shall preclude MLB from offering television

Single-Club Programming to any other MVPD that carries MLB Extra Innings.
d.

Subject to MLB’s national telecast contracts and the availability of game

feeds, MLB agrees that it will continue to offer MLB Extra Innings (to the extent MLB continues
to offer MVPDs MLB Extra Innings) in substantially the same package form while Paragraph 55
is in effect.
e.

The requirements of this Paragraph 56 will terminate as of the end of the

2020 MLB Season. MLB agrees to implement its obligations under this Paragraph 56 beginning
with the 2016 MLB Season.
57.

MLB.TV and MLB Extra Innings Price Relief
a.

MLB will provide MLB.TV Packages for the 2016 MLB Season at a price

of $109.99. Thereafter, for the remainder of the term for which this Paragraph 57(a) is in effect,
MLB may increase the price of MLB.TV Packages on an annual basis by 3% or that year’s

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COLA, whichever is greater in that particular year. The requirements of this Paragraph 57(a)
will terminate as of the end of the 2020 MLB Season.
b.

Comcast and DIRECTV will provide full-season MLB Extra Innings

Packages for the 2016 and 2017 MLB Seasons to residential customers at a 12.5% discount off
of their corresponding full-season Extra Innings prices to residential customers for the 2015
MLB Season.
c.

No Comcast Defendant or DIRECTV Defendant other than Comcast and

DIRECTV has any potential obligations under this Paragraph 57. In the event that Comcast or
DIRECTV no longer carries MLB Extra Innings, Comcast and DIRECTV, as applicable, will
have no obligations under this Paragraph 57.
58.

“Follow-Your-Team” Package
a.

MLB will offer MLB.TV subscribers the opportunity to purchase a

“Follow-Your-Team” Package, which, subject to the conditions below, will be an enhanced
MLB.TV Package permitting a subscriber to view on an Authenticated basis (as described in
Paragraph 58(c) below) all Local Game Telecasts produced by the Out-of-Market RSN affiliated
with a single Out-of-Market Club (selected by the subscriber at the time of subscription), even
when that selected Out-of-Market Club plays an In-Market Club. Those Local Game Telecasts
will be available (through Authentication) to the subscriber in addition to the Local Game
Telecasts of all other MLB Clubs otherwise available through the traditional MLB.TV Package,
which other telecasts would still be subject to blackout restrictions.
b.

Each Authenticated subscriber to such Follow-Your-Team Package will be

able to watch his or her selected Out-of-Market Club’s Local Game Telecasts for the duration of
their annual MLB.TV subscription, including those played against any Club within the HTT in

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which the fan resides, provided that the In-Market RSN affiliated with the Club within the HTT
has given consent for participation in such Follow-Your-Team Package and such subscriber
remains Authenticated. The Comcast RSNs, DIRECTV RSNs and YES (on behalf of itself, and
having secured and delivered the consent of each of the other 21st Century Fox RSNs that has an
agreement with an In-Market Clubs to carry Local Game Telecasts of MLB Club games) have
agreed to provide consent for participation in such Follow-Your-Team Package subject to the
remainder of this Agreement. MLB will endeavor to obtain the consent of other applicable
RSNs. MLB shall promptly seek SNY Board approval for the terms contained in this settlement
agreement so that SNY would be included in the settlement for the upcoming MLB Season. In
any event, MLB will ensure that at least one of SNY, NESN, MASN, and SportsNet LA will
provide such consent by the start of the 2016 MLB Season.
c.

Such Follow-Your-Team Package will require Authentication by the

applicable In-Market RSN and MVPD to ensure that the MLB.TV subscriber is also a pay
television subscriber of the In-Market RSN and is receiving the game telecasts of the In-Market
Club that the selected Out-of-Market Club is playing.
d.

MLB will endeavor to obtain the approval and cooperation of MVPDs for

such Follow-Your-Team Packages. At a minimum, such Follow-Your-Team Packages will be
available (through Authentication) to subscribers to Comcast and DIRECTV (each of which
MVPDs will cooperate in such authentication), except where it would require the consent of an
RSN that is not one of the Comcast RSNs, DIRECTV RSNs or 21st Century Fox RSNs, unless
such RSN has provided that consent under paragraph 58(b). MLB will ensure that at least two of
the following other MVPDs make the product available (through Authentication) to their
subscribers during the 2016 MLB Season AT&T U-Verse; DISH; Time Warner Cable; and

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Verizon FiOS. Failure of MLB to ensure that two of these MVPDs make such Follow-YourTeam Packages available will not constitute a breach by any non-MLB Defendant. Defendants
will use commercially reasonable efforts to launch FYT as soon as practicable, and in no event
later than during the 2016 MLB Season. If the requirements of this Paragraph are not fully
implemented by the time of the 2016 MLB All-Star Game by any particular Defendant, then the
requirements of Paragraph 58 shall not terminate as to that Defendant until the end of the 2021
MLB Season, notwithstanding any other provision of this Agreement.
e.

MLB will provide such Follow-Your-Team Packages for the 2016 MLB

Season at a total price of $119.99.
f.

MLB may offer a Follow-Your-Team upgrade to subscribers during the

2016 MLB Season to MLB.TV for the difference in price between the two, which must not
exceed $10. All eligible 2016 subscribers who purchase MLB.TV before FYT is available to
them must be permitted to purchase an FYT upgrade when it is made available in 2016.
g.

For the remainder of the term for which this Paragraph 58 is effective,

MLB may increase the price of such Follow-Your-Team Packages on an annual basis by no
more than 3% or that year’s COLA, whichever is greater in that particular year.
h.

The requirements of this Paragraph 58 will terminate as of the end of the

2020 MLB Season, except as provided in Paragraph 58(d). MLB agrees to implement its
obligations under this Paragraph 58 beginning with the 2016 MLB Season.
59.

IMS: If, by the start of the 2017 MLB Season, MLB is unable to obtain, through

the use of good faith efforts that it will undertake, agreements with Comcast, DIRECTV and 21st
Century Fox for Authenticated live IMS for each and every one of their respective RSNs (as
defined in Paragraphs 8, 14 and 54 above) that have agreements with In-Market Clubs to carry

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Local Game Telecasts of MLB Club games, MLB will be prohibited from implementing any
price increases permitted by Paragraphs 55(b), 57(a), or 58(f).
60.

“Unserved Fan”
a.

MLB will make available to Unserved Fans (as defined in Paragraph 60(b)

below) Local Game Telecasts of In-Market games (other than those involving Clubs not
affiliated with a Comcast RSN, DIRECTV RSN or 21st Century Fox RSN) through MLB.TV,
subject to the conditions set forth in this Paragraph.
b.

An “Unserved Fan” means a consumer who is unable to obtain any MVPD

service at his or her residence, with the term “MVPD” including virtual MVPDs such as Sony
Vue for purposes of this Paragraph.
c.

The following process will be used to establish whether, based on the

location of his or her residence, a person qualifies as an Unserved Fan:
(i)
A fan who believes himself or herself to be “Unserved”
within the meaning of 60(b) above will submit an online application that will be
made available through MLB;
(ii)
If MLB can determine on its own that the applicant can
access MVPD service, it will so advise the applicant; if MLB cannot do so, it will
forward such application to those MVPDs and RSNs that offer service to fans in
the vicinity of the applicant’s residence;
(iii) Such MVPDs and RSNs will have 30 days after receipt of
the application to inform MLB that the applicant either is (a) able to obtain
MVPD service, in which case MLB will so inform the applicant that he or she is
not a qualifying Unserved Fan; or (b) not able to obtain MVPD service, in which
case the applicant’s residence will qualify as an Unserved Fan.
d.

MLB will offer qualifying Unserved Fans the opportunity to purchase

MLB.TV at then generally-applicable prices and subject to other applicable terms and
conditions, with the enhancement of the additional distribution of In-Market Local Game

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Telecasts as described in Paragraph 60(a) above, for so long as that person remains an Unserved
Fan.
e.

Class Counsel shall be permitted to review any applications under

Subparagraph 57(c)(i), and documents sufficient to show MLB’s compliance with
Subparagraphs 57(c)(ii) and (iii) with respect to such applications, upon 60 days’ notice to MLB;
provided however, such right shall not be exercised more than once during each calendar year
through 2020.
f.

The requirements of this Paragraph 60 will terminate as of the end of the

2020 MLB Season. MLB agrees to implement its obligations under this Paragraph 60 beginning
with the 2016 MLB Season.
III.

Application for Approval
61.

Within seven calendar days of the date of this Agreement, Plaintiffs shall submit

to the Court a motion requesting that the Court enter a Preliminary Approval Order substantially
in the form of Exhibit A hereto. That motion shall request that the Court:
a.

preliminarily approve the Settlement;

b.

approve the form and content of the Notices attached hereto as Exhibits C

& D, approve the Notice Plan attached hereto as Exhibit B, and direct that the Notice be
provided to the Class Members in accordance with the Notice Plan;
c.

set the date for a Fairness Hearing; and

d.

stay all proceedings in the Action except those proceedings provided for

or required by this Agreement.
62.

Upon request by Plaintiffs’ counsel, Robert Bowman will furnish a declaration to

be used in support of a motion for approval of the Settlement and, if required by the Court, shall
appear at a hearing and describe the value of the Settlement.
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63.

Within 10 days of the filing of this Agreement with the Court, Defendants shall

cause notice of the proposed Settlement that meets the requirements of the Class Action Fairness
Act (“CAFA”), 28 U.S.C. § 1715, to be served on the appropriate federal and state officials.
Defendants shall file with the Court a certification stating the date(s) on which the CAFA notices
were sent.
64.

At least 14 days before the Fairness Hearing, Plaintiffs shall timely submit a

motion for final approval of the Settlement to the Court, along with a proposed Final Approval
Order substantially in the form of Exhibit E hereto. The proposed Final Approval Order shall
direct entry of a judgment that complies with Federal Rule of Civil Procedure 23(c)(3). The
proposed Final Approval Order shall include provisions pursuant to which the Court:
a.

approves finally the Settlement and its terms as being a fair, reasonable,

and adequate settlement as to the Class within the meaning of Rule 23 of the Federal Rules of
Civil Procedure and directing its consummation according to its terms;
b.

provides that the Action and all claims against Defendants are dismissed

with prejudice and directs the Clerk of the Court to enter Final Judgment dismissing the Action
with prejudice, and, except as provided for in this Agreement, without costs;
c.

reserves exclusive jurisdiction over the Settlement and this Agreement,

including the administration and consummation of the Settlement; and
d.

lists all Class Members who have timely elected to exclude themselves

from the release provisions and excludes such Class Members from a Final Judgment.
65.

If the Settlement set forth in this Agreement is finally approved by the Court in its

current form, or in a form not materially different therefrom, the Parties agree not to take any

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appeal from entry of the Final Judgment or the Final Approval Order other than an appeal by
Plaintiffs of fees, costs, or service awards, subject to Paragraph 72.
IV.

Applicability Before Effective Date
66.

Except as otherwise provided in Paragraphs 55, 56, 58, 60 and 71, none of the

Defendants shall have any obligations under Section II of this Agreement until the Effective
Date.
67.

The membership of the Class as defined in Paragraph 3 shall not change solely as

a result of any delay in implementation.
68.

If the Court decides not to grant Final Approval, or if Final Approval is reversed

on appeal, then upon the expiration of time for appealing such decision declining to grant or
reversing the grant of Final Approval, this Agreement shall be null and void.
V.

Service Awards
69.

The MLB Defendants, the Comcast Defendants, the DIRECTV Defendants and

YES collectively agree to pay each Named Plaintiff a service award of up to $10,000 each (plus
interest as described in Paragraph 71), subject to the determination and approval of the Court. If
the Court awards amounts less than those requested by Plaintiffs in this Action, all Parties will
remain bound by their respective obligations described in all other paragraphs in this Agreement.
VI.

Attorneys’ Fees and Costs
70.

Subject to Court approval, the Defendants agree to pay Class Counsel up to

$16,500,000 in combined attorneys’ fees and costs in this Action. Any award shall not reduce
any obligations described in any other paragraph. If the Court awards an amount less than that
requested by Plaintiffs in this Action, all Parties will remain bound by their respective
obligations described in all other paragraphs.

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71.

Within 10 days of the Final Approval Date, the MLB Defendants, the Comcast

Defendants, and the DIRECTV Defendants shall cause a sum in the amount of any service
awards, attorneys’ fees, and costs awarded by the Court to be transferred to an interest-bearing
bank or investment account agreed to by the Parties. Class Counsel shall provide the MLB
Defendants, the Comcast Defendants, and the DIRECTV Defendants any required tax
accounting documents prior to the Final Approval Date to facilitate the payment detailed in this
Paragraph. The obligations of the MLB Defendants, the Comcast Defendants, and the
DIRECTV Defendants with respect to payment of service awards, attorneys’ fees, and costs shall
be complete upon payment into the bank or investment account. Class Counsel shall not
distribute any such funds until the Effective Date. If the Settlement does not receive Final
Approval or the Agreement is voided, Class Counsel shall cause all funds and any accrued
interest to be transferred back to Defendants within 10 days of the exhaustion of appeals or
voiding of the Agreement, respectively. In the event that any court disallows payment of any
portion of service awards, attorneys’ fees, and costs deposited into the agreed-upon bank or
investment account prior to the Effective Date, Class Counsel shall promptly and in no event less
than 10 business days return all disallowed funds to the MLB Defendants, the Comcast
Defendants, and the DIRECTV Defendants, but shall be bound in all other respects to the
obligations in this Agreement.
72.

In the event there is no appeal of the Final Order by any objector and Plaintiffs

seek solely to appeal the district court's determination of fees, costs or service awards, the Parties
agree to and consent to issuance of a separate final judgment to be entered on all other terms of
the Settlement so that any appeal by Plaintiffs of the determination of fees, costs, or service
awards does not impact the finality of the Final Order on all other matters.

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VII.

Certification
73.

Within 180 days of the Effective Date, the Comcast Defendants, DIRECTV

Defendants, and MLB Defendants will each provide a declaration to the Court certifying their
compliance with their obligations under the terms of the Agreement. Certification of
requirements under the Notice Plan is provided for separately in the Notice Plan.
VIII. Class Notice
74.

Upon entry of a Preliminary Approval Order, the MLB Defendants, the Comcast

Defendants, and the DIRECTV Defendants shall disseminate Notice substantially in the form of
Exhibits C & D hereto, as specified in the Notice Plan.
75.

Not later than seven days prior to the Fairness Hearing, the MLB Defendants, the

Comcast Defendants, and the DIRECTV Defendants shall each provide a declaration to the
Court certifying their respective compliance with the Notice Plan.
76.

The MLB Defendants, the Comcast Defendants, and the DIRECTV Defendants

shall pay the costs of distributing the Notice provided for in this Section VIII.
IX.

Release
77.

As consideration for the relief included in this Agreement, upon the Effective

Date, and except as to such rights or claims as may be created by this Agreement, Releasors
hereby voluntarily and knowingly agree to fully, finally, and unconditionally release and
discharge Released Parties from any and all claims, demands, actions, suits, and causes of action
relating to the conduct alleged in the Action that have been brought or could have been brought,
are currently pending or were pending, whether known or unknown, suspected or unsuspected,
asserted or unasserted, under or pursuant to any legal authority including but not limited to any
statute, regulation, common law or equity, based on the facts alleged in the CAC, including
without limitation any claim for damages. Releasors further waive any rights under state laws
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limiting the release of unknown claims, including without limitation, Cal. Civ. Code Section
1542.
78.

As further consideration for the relief included in this Agreement, upon the

Effective Date, and except as to such rights or claims as may be created by this Agreement,
Releasors discharge Released Parties from any and all claims based on Defendants’ conduct
adopted pursuant to Section II of this Agreement, for the period from implementation of this
Agreement through the sunset dates set forth in this Agreement.
79.

The Parties intend that the Agreement shall be binding on all Releasors and

Released Parties who do not timely and validly request exclusion from the release of damage
claims. This Agreement shall constitute, and may be pleaded as, a complete and total defense to
any Released Claims if pursued in the Action or raised in any other action.
80.

All Class Members who do not timely and validly exclude themselves from the

release provided for in this Agreement will be permanently barred from filing, commencing,
prosecuting, intervening in, participating in as Class Members or otherwise, or receiving any
benefits or other relief from any other lawsuit in any state, territorial or federal court, or any
arbitration or administrative or regulatory or other proceeding in any jurisdiction to the extent
that such proceeding asserts any of the Released Claims.
81.

This Agreement does not settle or compromise any claims by Named Plaintiffs or

the Class Members against any person or entity other than the Released Parties, nor does it
release any claims other than the Released Claims. All rights of any Class Member against a
person or entity other than the Released Parties, or pertaining to any claims other than the
Released Claims, are specifically reserved by Plaintiffs and the other Class Members.

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82.

Defendants and Plaintiffs, on behalf of themselves and the other Class Members,

hereby expressly agree that all provisions of this Section IX together and separately constitute
essential and material terms of this Agreement.
X.

Request for Exclusion
83.

Each Class Member who does not file a timely written request for exclusion from

the Release in accordance with the procedures set forth in the Notice shall be bound on the
Effective Date by all terms of this Agreement, including the Release set out in Section IX herein,
and by all proceedings, orders, and judgments in this Action.
84.

No Party to this Agreement will make any effort, directly or through a third party,

to influence any individual or entity to request exclusion from the Class.
XI.

Use of this Agreement
85.

Neither this Agreement, nor any of its terms, nor any conduct or statements in

negotiation, discussion, or implementation of this Agreement, nor any orders by the Court
implementing this Agreement, are or shall be considered a concession or admission of
wrongdoing or liability, or lack thereof, by any Party hereto. No Party shall cite to or otherwise
use or construe this Agreement, any conduct or statements in negotiation or implementation of
this Agreement, or any orders by the Court implementing this Agreement as an admission of any
fault, omission, liability, or wrongdoing, or lack thereof on the part of any Party hereto.
Notwithstanding the foregoing, this Agreement may be used or offered in evidence in order to
enforce the terms of this Agreement, or filed in any action in support of any defense asserted by
any Released Party based upon res judicata, collateral estoppel, release, waiver, judgment bar or
reduction, full faith and credit, or any other theory of claim preclusion, issue preclusion or
similar defense or counterclaim.

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86.

Neither this Agreement nor any of the terms of this Agreement, nor any conduct

or statements in negotiation, discussion, or implementation of this Agreement, nor any orders by
the Court implementing this Agreement, nor any conduct required by this Agreement (including
the fact that any Defendant is or is not offering Single-Club Programming), may be referred to or
admitted in evidence by the Parties in the Action in the event the Effective Date does not occur.
XII.

No Appeal
87.

No Party shall seek to appeal any order in this Action other than orders relating to

this Agreement.
XIII. Miscellaneous Provisions
88.

This Agreement, including the Exhibits, constitutes the entire agreement between

Plaintiffs and Defendants pertaining to the Settlement of the Action and supersedes any and all
prior and contemporaneous undertakings of the Parties in connection therewith. This Agreement
is an integrated agreement. This Agreement may be modified or amended only by a writing
executed by Class Counsel and Defendants and approved by the Court.
89.

The Court shall retain exclusive jurisdiction over all matters relating to the

implementation and enforcement of this Agreement.
90.

All terms of this Agreement shall be governed by and interpreted according to the

substantive laws of New York without regard to its choice of law or conflict of law principles.
91.

The headings used in this Agreement are for the purposes of convenience and do

not constitute part of the Agreement, and no heading shall be used to help construe the meaning
of the Agreement.
92.

This Agreement shall be deemed to have been mutually prepared by the Parties

hereto and shall not be construed against any of them solely by reason of authorship.

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93.

Nothing expressed or implied in this Agreement is intended to or shall be

construed to confer upon or give any person or entity other than Named Plaintiffs, the Class
Members, and Defendants any right or remedy under or by reason of this Agreement.
94.

This Agreement shall be binding upon, and inure to the benefit of, the successors

and assigns of Named Plaintiffs, the Class Members, and Defendants.
95.

This Agreement will not be considered binding until executed by attorneys with

authority to bind all Parties. Each of the undersigned attorneys represents that he or she is fully
authorized to enter into the terms and conditions of, and to execute, this Agreement, by and on
behalf of his or her respective client(s).
96.

No Party may take any action that is designed to hinder or delay approval or

implementation of any provision of this Agreement.
97.

This Agreement may be executed in counterparts by counsel for the Parties, and a

facsimile or electronic image of a signature shall be deemed an original signature for purposes of
executing this Agreement. Each executed counterpart shall be deemed an original, and all
executed counterparts shall constitute together one in the same instrument, and will be effective
upon execution by all Parties.
98.

This Agreement shall be limited to products sold to residential consumers in the

United States. MLB’s commercial activities relating to MLB.TV and Extra Innings outside the
United States shall be excluded.

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Case 1:12-cv-03704-SAS Document 509-1 Filed 01/20/16 Page 27 of 30

EST WITNESS WHEREOF, the Parties hereto, through their fully authorized representatives,
have agreed to this Agreement as of the date first herein written above.

By:
DAVIS POLK & WARD WELL LLP
Date:
For Defendants Comcast Corporation,
Comcast SportsNet California, LLC, Comcast
SportsNet Chicago, LLC, Comcast SportsNet
Philadelphia, L.P.

By:
LANGER, GROGAN & DIVER, P.C.
Date:
For All Plaintiffs

By:
KIRKLAND & ELLIS LLP
Date:
For Defendants DIRECTV, LLC, DIRECTV
Sports Networks, LLC, DIRECTV Sports Net
Pittsburgh, LLC d/b/a Root Sports Pittsburgh,
DIRECTV Sports Net Rocky Mountain, LLC
d/b/a Root Sports Rocky Mountain, and
DIRECTV Sports Net Northwest, LLC d/b/a
Root Sports Northwest

By:
BOIES, SCHILLER & FLEXNER LLP
Date:
For Defendant New York Yankees Partnership

25

PAUL, W&SS, RjfrOND, WHARTON &
GARRISON LLP
Date:
For Defendants Office of the Commissioner of
Baseball, Major League Baseball Properties
Inc., as successor by merger to MLB
Enterprises, Inc., MLB Advanced Media L.P.,
MLB Advanced Media, Inc., Athletics
Investment Group, LLC, the Baseball Club of
Seattle, L.L.L.P., Chicago Cubs Baseball Club,
LLC, Chicago White Sox, Ltd., Colorado
Rockies Baseball Club, Ltd., The Phillies,
Pittsburgh Baseball, Inc., and San Francisco
Baseball Associates, L.L.C.

By:
WILLIAMS & CONNOLLY LLP
Date:
For Defendant Yankees Entertainment and
Sports Network, LLC

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