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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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

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

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 Opposition to “Defendant National Football League’s Motion for an Order to Show Cause.” (Dkt. No. 230) (the “Motion”). As an initial note, the NFL has provided fewer than 24 hours in which to oppose its Motion. The Dryer Group Plaintiffs have made every effort to marshal legal and factual arguments to oppose the Motion, but due to the extremely short notice provided by the NFL, Plaintiffs must respectfully reserve all rights to supplement their submission. Additionally, the Dryer Group Plaintiffs, as opposed to Mr. Lurtsema, are best positioned to oppose the NFL’s Motion, as it requires detailed factual and legal knowledge regarding the present case and its history. Plaintiffs have not had sufficient time to confer with Mr. Lurtsema regarding the NFL’s Motion, but suggest it can and should be decided without further burdening and harassing a third party.

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I.

INTRODUCTION. The Dryer Group Plaintiffs respectfully request that the Court promptly deny the Motion,

rather than countenancing the NFL’s unfortunate efforts to intimidate non-party and putative class member Bob Lurtsema, a ten-year NFL veteran, and silence his free expression. The Dryer Plaintiffs Group respectfully request that the Court deny the NFL’s Motion for eight primary reasons: (1) Mr. Lurtsema's statement are protected by the First Amendment of the Constitution of the United States; (2) Mr. Lurtsema had no knowledge of any confidentiality attached to his statements; (3) The Court in October already lifted the so-called “Gag Order” at issue; (4) There was no written or verbal indicia of confidentiality prior to, during, or after the Status Conference at issue, and in fact, all the parties, counsel, and non-party attendees treated it as an “open forum” commenting and appearing to vote on the proposed deal reached between the NFL and its desired cy pres settlement partner Mr. Hausfeld; (5) The NFL requests fatally overbroad and extraordinary relief, purporting to require elimination of every single word from Mr. Lurtsema’s letter, and made no absolutely no effort to narrowly tailor the relief it seeks; (6) The NFL failed to meet/confer regarding its Motion; (7) Mr. Lurtsema’s letter may in fact have been curative and a necessary corrective to certain communications engineered by the NFL and Mr. Hausfeld; and (8) The sparse caselaw and rules cited by the NFL are inapplicable. Indeed, if the NFL had complied with the Local Rules to meet and confer it is submitted that it is likely that a resolution would have been achieved. As the Court is well-aware, at the November 27, 2012 Status Conference at issue in the NFL’s Motion, the NFL was very pleased to speak extremely freely on proposed settlement matters with many, many non-Plaintiff class members that attended the November 27, 2012 Status Conference. And that is because, as discussed below, it appears that the NFL coordinated -2-

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and expressly approved attendance of hand-picked, “favorable” non-Plaintiff class members1 with Interim Co-Lead Counsel Michael Hausfeld. This is in no way a slight to those men, who in advance of the Status Conference appeared to receive incomplete information at best from their sponsor. It appears that the NFL’s real disagreement is with the content of Mr. Lurtsema’s expression. For tactical purposes, however, the NFL has couched its arguments in terms of Mr. Lurtsema’s right to express himself on what he personally observed in circumstances with absolutely no written or verbal indicia of the extreme confidentiality now retroactively sought by the NFL. As Justice Brandeis observed in his oft-cited concurring opinion in Whitney v. California, 274 U.S. 357, 377 (1927), “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.” (emphasis added). If the NFL takes issue with the content of Mr. Lurtsema’s remarks, it should counter them and seek to persuade with better ideas and more compelling arguments. But the NFL should not be allowed to use the process of this federal Court to quash speech it does not favor, and elevate speech that it and its cy pres settlement partner do favor. The NFL’s Motion discloses numerous defects entirely inconsistent with a claim of confidentiality. Amazingly, the Motion publicly republishes two separate website links at which Mr. Lurtsema’s letter can be found. The NFL further fails to describe the decidedly nonconfidential nature of the Status Conference at issue by which many non-Plaintiff class members were secretly chosen by Mr. Hausfeld to attend and with the NFL’s advance knowledge and cooperation. Furthermore, the NFL neglects to state that in October, the Court specifically informed numerous Plaintiffs that any “Gag Order” was no longer in effect. Additionally, the NFL submitted a false “Meet-and-Confer Statement” (Dkt. No. 234) in
1

Remarkably, at least one of the individuals invited was a member of the public who never played in the NFL and could not explain why he participated in the discussion. -3-

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connection with its Motion, stating that its attorneys “met and conferred” with undersigned counsel Bob Stein. The NFL did nothing of the sort, calling Mr. Stein only to say it had scheduled a hearing and that Mr. Lurtsema purportedly needed to attend. Instead of discussing the issues, the NFL instead chose to mock-up false accusations, even going so far as to serve a subpoena yesterday evening on Mr. Lurtsema purposing to require him to “testify” today at a “hearing or trial” in Court without knowledge of the subject matter and/or benefit of the counsel of his choice. Had the NFL actually conferred with Mr. Stein, they could have discussed the NFL’s Motion as expressly required under Local Rule 7.1, which requires a “good faith effort to resolve the issues raised by the motion.” Of note, the “Meet-and-Confer Statement” discloses not a word about any meet/confer effort between the NFL and the Plaintiffs’ Interim Co-Lead Class Counsel Michael Hausfeld, Bucky Zimmerman, or any of their assisting firms, or any concern whatsoever about communications with their origins in those firms. The Dryer Plaintiffs Group believes that is no accident, and request to discuss first in camera with the Court, Mr. Hausfeld and Mr. Zimmerman, some communications that are relevant to the present situation. Mr. Lurtsema’s letter may be curative, corrective, and necessary to counter other speech encouraged by the NFL and its cy pres settlement partner, and entirely consistent with that speech. Moreover, the NFL’s request to this Court is spectacularly, and fatally, overbroad. It will settle for nothing less than every single word, every single comma, written by Mr. Lurtsema, to be stricken. That is yet another reason that the required meet/confer process, skipped by the NFL in its zeal to file court papers, is extremely important. It still has not proposed any redacted version. This requested total scrubbing of information is not even supported by the smattering of cases that the NFL cites, as discussed herein, as even those cases endorsed a modulated approach at a minimum and allowed for disclosure of numerous items of information. The NFL’s approach, instead, is to be hell-bent on creating the appearance of a major crisis, with the obvious end-game of seeking to remove any plaintiffs’ counsel that will not willingly partner with the NFL in a, to say the least, dubious cy pres settlement concept. If the Court does not flat -4-

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out reject the NFL’s motion, as it should, the Dryer Group Plaintiffs suggest that the NFL be ordered to propose a redacted version of Mr. Lertsema’s letter with narrowly-tailored redactions, and to meet/confer. Regrettably, the NFL’s Motion comes during the week when the Court had ordered the parties to finally move forward on a litigation scheduling order to prepare this case for its later stages and trial. See Dkt. 229, filed 12/03/12, “Telephone Conference Court Minutes,” at 1 (“Parties to meet and confer and to submit proposed litigation scheduling order no later than 4:30 p.m. on Monday, December 10, 2012.”). Earlier in the week, the undersigned emailed all counsel in the case, and separately emailed all plaintiffs’ counsel, seeking to set telephonic “meet/confer” calls to work on establishing a proposed schedule. No one has responded. Defendant NFL understandably would prefer perpetual stasis and unlimited debate on a settlement proposal that was dead-on-arrival months ago. It is time for the case to move forward, not backward. II. RELEVANT FACTS. The NFL’s Motion discusses class member Dave Pear’s blog, on which Mr. Lurtsema’s letter was posted. The Motion gives scant information on what Mr. Pear’s blog actually is and does. It states that it is the “unofficial blog for independent football veterans.” The blog indicates it is run by former NFL player Dave Pear, a putative class member in the present litigation, and was started in 2008. It further indicates that Mr. Pear started the blog to assist in dispensing information to retired players related to the growing awareness of health-issues reflecting retired NFL players, and “we decided to use the Internet to level the playing field a little . . .” As the Court can judge for itself, it is not “media,” but instead a clearinghouse for retired professional football players to exchange information. The exchange of information among retired players, of course, is exactly what the NFL, its defense counsel, the Court, and the other Interim Co-Lead Plaintiffs Class Action Counsel, Messrs. Hausfeld and Zimmerman, endorsed in major fashion at the November 27, 2012 Status Conference. The Dryer Group Plaintiffs and the undersigned counsel have no idea how all of the -5-

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many non-Plaintiff class members were selected by Mr. Hausfeld to attend the Status Conference with him. It was obvious however, that their presence was known in advance by the NFL, endorsed by the NFL, and allowed by the Court. So if all of those players that were there in attendance, selected by unknown criteria, could speak as freely as they wish, why should absent class members be excluded from the discussions? It should go without saying that many of the putative class members are in very poor health, making it extremely difficult if not totally impossible for many of them to travel. Non-plaintiff class members were not even given an opportunity to call-in by phone, participate by Skype, nothing. The Dryer Plaintiffs and the undersigned counsel are still at a loss to explain the process set-up by the NFL and its cy pres settlement partner. The NFL’s Motion also discloses virtually nothing regarding Mr. Lurtsema, other than to say he “is a retired NFL player who attend the November 27 session at the invitation of Bob Stein . . .” (NFL Mem., at 3). Mr. Lurtsema played for 10 years in the NFL, including several for the Minnesota Vikings, and retired in 1977. A. The Lifting of the “Gag Order.” It is the undersigned’s understanding that the Honorable Magistrate, in its meetings with various parties on October 17, 2012, specifically informed numerous of the Dryer Group Plaintiffs that the so-called “Gag Order” (meaning, the Court’s “Order” of September 5th, Dkt. No. 212), was no longer in effect. That Order states the following two sentences at the end after addressing unrelated issues: “IT IS ORDERED that pending the outcome of the settlement negotiations, that neither the attorneys or any of the named parties in this litigation shall talk to the media or make any direct or indirect comments or disclosures about the settlement process or the case in general, until further order of the Court. This Order shall remain in effect for a limited period of time so as to allow a full and frank settlement dialogue.” The Gag Order, was not the subject of any briefing, oral argument, or discussion involving the undersigned. Nonetheless, the Dryer Group Plaintiffs and the undersigned counsel entirely abided by it, despite learning that co-counsel was repeatedly violating the Order if it was -6-

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intended to extend beyond any media contacts. On October 17, 2012, numerous of the Dryer Group Plaintiffs met in person with the Chief Magistrate. During the meeting, it is the undersigned’s understanding that those Plaintiffs specifically inquired of the Court as to whether the “Gag Order” was now lifted, and that the Court specifically informed them it was no longer in effect. Plaintiffs have filed several accompanying declarations from those Plaintiffs, each stating the following: “On or about October 17, 2012, I attended a status conference in the above reference matter in the Chambers of United States Chief Magistrate Judge Arthur J. Boylan. At one point during that conference, I along with several of my fellow Plaintiffs met privately with Chief Magistrate Judge Boylan to discuss the case and possible settlement. During that private meeting, Chief Magistrate Judge Boylan was asked about the "GagOrder" that he had issued. Chief Magistrate Judge Boylan advised us that he did not consider the Gag-Order necessary any longer and that it was no longer in place.” Even if the Gag-Order had not been lifted in October (as a number of Plaintiffs have sworn that it was), it had expired by its own terms. It includes the line: “This Order shall remain in effect for a limited period of time so as to allow a full and frank settlement dialogue.” The NFL knows this and disingenuously has left out this last important sentence when it quotes the Court's Order at page 2 of its Memorandum. At the time the letter was written, settlement dialogue had concluded. The court will further recall that when it established the Status Conference on November 27, 2012, it advised all counsel that was the final attempt at settlement and that if no settlement was achieved the parties would "return to litigation".2 B. The Non-Confidential Nature of the Status Conference. The NFL parses and twists language in attempt to obtain its desired outcome here, the

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Indeed, the parties are now charged to proffer draft Scheduling Orders for the Court's consideration. -7-

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quelling of dissent. For example, the NFL states that the November 27, 2012 was a “settlement negotiating session.” NFL Mem., at 2. However, the event was never billed as a settlement negotiating session. Both before and after, it was billed as a “Status Conference.” See, e.g., Dkt. No. 225, “Order / Notice of Status Conference,” at 1 (“A status conference will be held on November 27, 2012 . . . All Lead Counsel and each named Plaintiff shall appear in person for the status conference.”) (emphasis in original). The Court’s nomenclature was entirely consistent after the Status Conference. See Dkt. No. 227, entered November 27, 2012, (“Court Minutes – Civil . . . Hearing on: STATUS CONFERENCE . . . Status conference held.”); Dkt. 228, entered November 27, 2012, “Court Minutes – Civil **Corrected Minute Sheet**,” at 1 (“Time in Court: 8 Hours, Hearing on STATUS CONFERENCE . . . Status conference held.”). Moreover, there decidedly was no “negotiation” by the NFL and the Status Conference. It appeared to the Dryer Plaintiffs Group and all undersigned counsel that the NFL in fact was going to announce at the Status Conference, or shortly thereafter, a proposed deal with its cy pres settlement partner, and that some type of novel “focus group” or “vote” was underway. In contrast, the Court has been very clear in using the express term “settlement conference” or “meet/confer” in settlement related contexts. See, e.g., “Order,” dated Sept. 5, 2012, Dkt. 212, at 1 “the Court has scheduled a settlement conference in this matter to be conducted before the undersigned Magistrate Judge . . . on the 6th day of September . . . the Court had previously been contacted regarding whether additional parties, apart from the persons identified in the Court's notice of the settlement conference . . . could attend the conference . . . The conference shall be limited to the attorneys for the Class as stated in the notice . . .”); “Order,” Dkt. 223, dated Nov. 1, 2012, at 1 (“in anticipation of said conference the Court had suggested that a ‘meet and confer’ session take place between Gary Gertzog, counsel representing the National Football League, and Robert Stein, one of Plaintiffs' lead counsel . . .”). The September 5, 2012 order regarding a “settlement conference” referenced in the preceding paragraph is all the more notable because of its express, Court-ordered limitation to a very small number of persons. In contrast, the November 27, 2012 Status Conference was -8-

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apparently entirely open to whatever former players were there. It had all appearances of an “open forum.” In fact, as the Court and all counsel will recall, the Court very nearly held the Status Conference in the courtroom, and at the last minute only refrained when one of the attorneys mentioned that due to the acoustics in the public courtroom, and the large number of non-Plaintiff class member attendees, it would be better for hearing and comfort purposes to remain in a conference room. The NFL states that “During the session, the Court reminded counsel and the named plaintiffs of their confidentiality obligations and independently informed the non-plaintiff retired players that they were bound by the confidentiality order.” Notably, there is no citation to any declaration or even specifics on this. The undersigned three firms never heard anything regarding this during the Status Conference. Nor did any of the six Plaintiffs that submit this opposition brief. The undersigned has further conferred with Mr. Lurtsema, and he never heard anything whatsoever stated regarding confidentiality. Additionally, it is undisputed that the Court issued orders before and after the Status Conference, that referred to the Status Conference, and did not state a single word about confidentiality issues. Additionally, it is undisputed that the NFL, before, during, or after the Status Conference, never took a single cautionary step to “remind” anyone about supposed confidentiality issues. Given the importance that it now retroactively attaches to the issue, one would reasonably expect the NFL to have taken some prophylactic steps. Furthermore, at least one non-player was even in attendance, someone named “Bill Schmidt” who stated that he had never played in the NFL, had only played college football, and the Dryer Group Plaintiffs and the undersigned firms have no idea who he is or why he was there. But it is certainly apparent that the Status Conference involved at least one non-attorney, non-class member, and his presence would seem to further erode any claim of confidentiality. Moreover, it is undisputed that no Plaintiff, attorney, or non-Plaintiff class member was given any confidentiality order materials prior to or after the Status Conference, and no one including any of the non-Plaintiff attendees was asked to sign any confidentiality agreement. It -9-

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is of course standard practice in any mediation for all in attendance to sign a confidentiality agreement prior to the mediation. For example, leading alternative dispute resolution provider JAMS sets forth its template sample mediation agreement on its website, which is set up to require signatures, and includes the express statements: The parties, and if they desire, their representatives are invited to attend mediation sessions. No one else may attend without the permission of the parties and the consent of the mediator . . . If a party wishes to terminate its participation for any reason, it may do so by giving notice to the mediator and the other parties. The parties will continue to be bound by the confidentiality provisions of this agreement The JAMS Agreement further states this in an entirely separate, express agreement that states: III. Confidentiality. In order to promote communication among the parties, counsel and the mediator and to facilitate settlement of the dispute, each of the undersigned agrees that the entire mediation process is confidential. All statements made during the course of the mediation are privileged settlement discussions, and are made without prejudice to any party’s legal position, and are inadmissible for any purpose in any legal proceeding. These offers, promises, conduct and statements (a) will not be disclosed to third parties except persons associated with the participants in the process, and (b) are privileged and inadmissible for any purposes, including impeachment, under Rule 408 of the Federal Rules of Evidence and any applicable federal or state statute, rule or common law provisions.3 C. The NFL Republishes to Millions. Amazingly, the NFL in its publicly-filed brief available on CM/ECF and PACER electronic systems, prominently sets forth the internet link to Mr. Lurtsema’s letter, along with a description of exactly what is there, along with a separate link to the home page of the relevant website. See Dkt. 232, “Defendant National Football League’s Memorandum in Support of Motion for an Order to Show Cause,” (“NFL Mem.”). The PACER website notes that “PACER” stands for “Public Access to Court Electronic
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“JAMS Mediation Agreement,” Revised May 2005, available at <http://www.jamsadr.com/adrforms/ > (last visited December 2, 2012). -10-

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Records,” and that it is an “electronic public access service that allows users to obtain case and docket information from federal appellate, district and bankruptcy courts, and the PACER Case Locator via the Internet.” (emphasis added).4 The Administrate Office of the United States Courts stated that as of late 2009, there were “325,000 active PACER users,” and that “Since the early 1990s, more than one million PACER accounts have been registered.”5 As the Court no doubt is aware, PACER subscribers include journalists, and materials from PACER are widely republished in research services such as Westlaw, Courthouse News, and Law 360. And major litigation involving the NFL obviously is likely to attract even more interest from research services and news organization PACER subscribers. The NFL’s decision to publically republish the information, and call exponentially more attention to it, is entirely inconsistent with any genuine belief in the confidentiality of the information. To put it another way, it is hard to imagine, for example, that if the “secret formula” for Coca-Cola appeared on a blog, that Coca-Cola’s first order of business would be to publically republish the link. And what’s more, even after several days, the Dryer Group Plaintiffs do not understand the NFL to have sent a “take-down” notice, cease-and-desist letter, or even called Mr. Pear to discuss whether he would consider a redacted version. Again, that is not conduct consistent with a true and supportable belief in confidentiality. The NFL’s process here leaves the unmistakable impression that it now wants people beyond class members to discover the letter, and write about it, to thus then contend some widespread inchoate prejudice. If that was not the case, why in the world would the NFL proceed in such a public way with its Motion? There obviously were numerous other options available to the NFL, such as convening a call with the Court, requesting an in camera meeting of just counsel, or filing its papers under seal. The NFL strategically chose to do none of those things,

4 5

< http://www.pacer.gov> (last visited December 2, 2012). < http://www.uscourts.gov/News/TheThirdBranch/10-0524/Preliminary_Findings_Satisfaction_High_Among_PACER_Users.aspx> -11-

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and has attempted to now gin up a false-crisis over a blog post that, as of the filing of this brief, has generated exactly two comments in response after several days. The NFL’s tactics here are transparent – it seeks to use a non-controversy that it created, create a false sense of importance and crisis, and then proceed to its real objective – seek to have anyone that stands up to it in the case removed. III. THE NFL’S INAPPOSITE AUTHORITIES. The NFL’s citation to Local Rule 16.5(d) is inapposite. Subpart (1) of that rule states that “A ‘confidential dispute resolution communication’ is any communication that is: (A) made to a neutral during an alternative dispute resolution process; and (B) expressly identified as being confidential information that the party does not want communicated to any other person outside of the alternative dispute resolution process.” Subpart (2) uses the defined term “confidential dispute resolution communication” as identified in subpart (1), and states “A confidential dispute resolution communication must not be disclosed outside the alternative dispute resolution process by anyone without the consent of the party that made the confidential dispute resolution communication.” As is immediately apparent from the text of Mr. Lurtsema’s letter, he does not describe any statements made to Magistrate Boylan during the November 27, 2012 Status Conference. At most, he describes statements made by other players, including various Plaintiffs, in the various “players only” portions of the Status Conference. Moreover, turning to application of subpart (2) of Local Rule 16.5(d), the NFL identifies not a single statement in Mr. Lurtsema’s letter that was ever “expressly identified as being confidential information” that the NFL did “not want communicated to any other person outside of the alternative dispute resolution process.” As is apparent, the NFL wanted hand-picked and less than fully informed class members in attendance (again, through no fault of their own) to go forth and evangelize the supposed benefits of the proposed settlement. While it is unhappy now that Mr. Lurtsema has a different opinion, that is not a basis for application of Local Rule 16.5(d). -12-

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The NFL cites but three cases, none of which are Eighth Circuit cases, two of which are from outside of the Circuit, and one of which is from an Illinois trial court. In re City of Stockton, 475 B.R. 720, 724 (Bankr. E.D. Cal., July 13, 2012), reveals its inapplicability from its various first line, stating “This case of first impression involves the boundaries, the interplay, and the common ground between federal law and state law in the context of the confidentiality requirement in California's new statute channeling a municipality through a neutral evaluation process before filing a chapter 9 case to adjust debts under the U.S. Bankruptcy Code.” Setting aside the fact that the NFL is citing a case from a few months ago that grapples with a “first impression” as grounds from the extraordinary, emergency relief it seeks here, the text of the case actually undermines the NFL’s position. The court ruled that a host of material was not protected from disclosure by any protections, and stated that “the City's motion will be denied as unnecessary to the extent that it seeks permission to dispense with confidentiality of the California pre-filing neutral evaluation process with respect to the number and length of meetings between the City and its creditors, the identity of the participants at such meetings, the types of issues discussed, and the status of negotiations between the City and each interested party as of the petition date. Those matters are no longer confidential under California law.” Id., at 733 (emphasis added). The Court then states that “The protective order shall not apply to the “790–page ‘ask’ created by the City that details the City's current situation and lays out a proposed plan—equivalent to a chapter 9 plan—to address the City's financial shortfall.” Id. (emphasis added). In City of Hartford v. Case, 942 F.2d 1380 (2d Cir. 1991) also is of no help to the NFL. The court denied a newspaper’s motion to obtain Freedom of Information Act access to documents relating to a settled lawsuit between unrelated parties. The court stated that “regardless of what the district court had in mind at the time it signed the Confidentiality Order, we believe that, for purposes of the present controversy, the Order must be interpreted as it plain language dictates-i.e., to prohibit disclosure of all documents related to the settlement agreement.” Id., at 135. The only party affirmatively seeking discovery of documents here is the -13-

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NFL, that believes it somehow is entitled to Mr. Lurtsema’s records now. In Grove Fresh Distribs. v. John Labatt Ltd., 888 F. Supp. 1427, 1437 (N.D. Ill. 1994), the trial court was confronted with an attorney who was a serial violator of orders expressly providing the materials stamped confidential could not be publicly disclosed absent further orders of the court. The court summed up the situation thusly: Mr. Messina's primary defense is his assertion that the scope of the orders of confidentiality was so limited that neither the protective order nor the seal prohibited his disclosures. According to Mr. Messina, the protective order prohibited the dissemination of very little. Mr. Messina testified that he did not understand the protective order to prohibit him from revealing the contents of pleadings. Nor from revealing confidential discovery information such as answers to interrogatories nor answers to requests to admit. Nor from disclosing the deposition testimony of witnesses. Nor from disseminating the contents of documents marked “confidential.” Mr. Messina's interpretation of the seal order is similarly cramped. Mr. Messina testified that he did not understand the seal order as preventing him from revealing the contents of depositions under seal, other discovery materials under seal, or quoting verbatim from sealed materials. The only thing that Mr. Messina believed the sealing order actually prohibited was the public disclosure of the actual pleadings—the physical documents themselves—filed in the case. It is entirely inappropriate, and in fact insulting, for the NFL to compare present circumstances to those in Grove Fresh. No one here is bandying about confidential documents in public, to state the obvious. IV. THE NFL’S EXTRAORDINARILY BROAD SOUGHT-AFTER RELIEF. The NFL’s Brief cryptically requests an order “admonishing Plaintiffs, their counsel, and all others who have participated in the settlement discussions that the terms of those discussions must be held in strict confidence to preserve the integrity of the process.” The NFL “admonishes” itself here, as it willingly allowed numerous non-parties to attend the Status Conference, fully participate in it, and serve as advocates for it and its cy pres settlement partner in extolling the supposed virtues of the proposed deal. Plaintiffs cannot even ascertain who exactly the NFL means here. If it means the “parties,” it should say so. The NFL’s over-the-top tactics are inappropriate. It requests an order “requiring Mr.

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Lurtsema to immediately take all steps necessary to remove the letter from the internet.” The NFL does not specify what it means, but it knows full well that Mr. Lurtsema does not in any way control or own Dave Pear’s blog. The NFL apparently requests the extraordinary measure of requiring Mr. Lurtsema to appear in court on fewer than 24 hours’ notice and to “provide to the Court all details about who was involved in drafting and publishing the letter . . .” The NFL further caused a subpoena to issue, with its outside counsel signing a subpoena titled “Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action” and purporting to require non-party Mr. Lurtsema to appear in court and “testify” on fewer than 24 hour’s notice in some undefined, unbounded legal proceeding. The NFL also submitted a “[PROPOSED] Order” and truly picks up steam therein, purporting to require, if signed by the Court, Mr. Lurtsema to, among other things, “take whatever steps are necessary to remove any comments made regarding that letter on davepear.com,” to preserve records, and to bring to the “hearing” that he learned of on fewer than 24 hours’ notice, “paper copies of all documents in his possession or control, including electronic communications, relating to the letter” (emphasis added). All of this requested relief is in stark contrast to the NFL’s failure to even seek to meet/confer, or to even send any communications to Mr. Pear on this issue. Suffice it to say, the Dryer Group Plaintiffs request that the Court reject the NFL’s efforts to engage in a broad inquisition of its own devising. If the Court is inclined to allow a broad-ranging hearing, the Dryer Group Plaintiffs request that they be permitted equal and reciprocal discovery of the NFL, its counsel, and their cy pres settlement partner and his co-counsel to determinate the extent of the communications that they in turn have been generating and instigating. As discussed herein, the Dryer Group Plaintiffs request an in camera conference if the Court is unable to dispose of this Motion prior to reaching this issue. Additionally, the Dryer Group Plaintiffs would like to present their own witnesses at any hearing, and also would need time to consult with Mr. Lurtsema and likely -15-

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assist him in obtaining independent counsel if the NFL has in mind some type of harassing taking of testimony. At the moment, the Dryer Group Plaintiffs have no idea what it is that the NFL has in mind today, because the NFL’s counsel has not told us. If the Court is going to hear this matter, Plaintiffs request a full hearing at which a complete record can be developed, and providing that: (1) The alleged confidential nature of the statements is examined through analysis and testimony; (2) Witnesses are properly notified; (3) Additional legal representation is secured as needed; (4) Evidence on the meaning of the effect and duration of the Court's Order is fully briefed and examined; (5)Waivers of confidentiality of the NFL are established through the examination of the parties' actions and publications, as well as non-party disclosures and publications of facts and documents; and (6) Any privilege issues can be examined and ruled/agreed upon. As indicated herein, it is contended that the evidence submitted in Mr. Lurtsema’s letter is not confidential and, if it ever was, the NFL has purposely acted to remove its confidential nature. This will be established with testimony and document evidence. It will be shown that the NFL was on notice and aware that Plaintiffs’ counsel were discussing details of the settlement with non-parties for several months and not only acquiesced in, but encouraged, this activity.6 Finally, the Dryer Group Plaintiffs request an award of their reasonable fees and costs in opposing the NFL’s Motion including on the grounds that it has entirely failed to meet/confer in flagrant violation of the Local Rules. V. CONCLUSION. For the reasons stated herein, the Dryer Group Plaintiffs respectfully request that the Court deny the NFL’s Motion, and award them their reasonable fees and costs incurred in opposing the NFL’s Motion due to the failure to meet/confer.
6

As stated at the outset of this Brief, the Dryer Group Plaintiffs have had to prepare this submission on extremely short notice, and must respectfully reserve the right to make additional factual and legal arguments as their investigation and duties to clients and the putative class so requires. -16-

CASE 0:09-cv-02182-PAM-AJB Document 236 Filed 12/05/12 Page 17 of 17

Dated: December 4, 2012

Respectfully Submitted, /s/ Jon T. King__________________ Jon T. King (Cal. Bar No. 205073; pro hac vice) 856 Walbrook Ct. Walnut Creek, CA 94598 Telephone: (925) 698-1025 Email: jtk70@comcast.net Co-Counsel for Plaintiff Pastorini
Robert A. Stein BOB STEIN LLC Robert A. Stein MN 104930 10125 Crosstown Circle, #200 Eden Prairie, MN 55344 Telephone: (952) 829-1043 Facsimile: (952) 829-1040 Email: rastein66@ao1.com

Plaintiffs’ Interim Co-Lead Class Counsel, and Co-Counsel for the Dryer Group Plaintiffs
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

Co-Counsel for the Dryer Group Plaintiffs

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