# Opposition Brief — Jones v. National Football League > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1639%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1995 - **Citation:** 515 U.S. 1137 ## Text - Nos. 94-1749,1750 | a a4 «6S 5 se Tt? | IN THE 22 19% | > { Supreme Court of the United States hor ee -ereers ers OCTOBER TERM, 1994 > SEAN JONES. et al.. MARK DUSBABEK, ef a/ Petitioners, REGGIE WHITE, ef al Respondent/Plaintiffs, NATIONAL FOOTBALL LEAGUE, et al., Respondent/Defendants. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE RESPONDENT/PLAINTIFFS IN OPPOSITION James W. Quinn WEIL, GOTSHAL & MANGES Counsel of Record 767 Fifth Avenue Jeffrey L. Kessler New York. New York 10153 Jonathan T. Weiss (212) 310-8000 David G. Feher Yoav M. Griver Orc J LINDOUIST & VENNUM OUNSE! 4100 IDS Center Edward M. Glennon Minneapolis, Minnesota 55402 Charles J. Lloyd (612) 371-3211 Mark A. Jacobson Of Counsel Class Counsel and Attorneys for Respondent/Plaintiffs nealaa hd i QUESTIONS PRESENTED 1. Whether the lower courts erred in finding that Petition- ers submitted to personal jurisdiction by filing appearances and voluntarily challenging the merits of a proposed class action settlement agreement. 2. Whether, as a matter of fact, Petitioners waived any due process challenge to the District Court’s certification of a Rule 23(b)(1) non-opt-out class. 3. Whether the District Court’s approval of a class action settlement agreement as fair, reasonable and adequate to class members, and the Court of Appeal’s affirmance of that approval, constituted an abuse of discretion. PARTIES TO THIS PROCEEDING The Petitioners in this proceeding are eighteen individual class members out of a class of over 5,000. They are Sean Jones, Leslie O’Neal, Eric Allen, Cris Dishman, William Matthews, and Van Waiters (the “California Objectors”); Mark Dusbabek, Carl Lee, Audray McMillian, Felix Wright, Cody Risien, Mark Harper, Sammy Martin, Don Beebe, and Gregory Scales (the “Viking Objectors”); Maurice Hurst, John Fourcade, and Byron Evans. Petitioners appeared and vol- untarily objected to the merits of a class action settlement in proceedings before the United States District Court for the District of Minnesota, and were appellants before the United States Court of Appeals for the Eighth Circuit. Respondent/Piaintiffs Reggie White, Michael Buck, Hardy Nickerson, Vann McElroy, and Dave Duerson were plaintiffs and class representatives in the proceedings before the Dis- trict Court, and appellees before the Court of Appeals. Respondent/Defendants the National Football League and its twenty-eight member clubs (“NFL”) were defendants in the proceedings before the District Court, and appellees before the Court of Appeals. eee alt i all eS ee eae Te ee ee eT iil TABLE OF CONTENTS PAGE RS 9G eh.) i PAmstee FD ile FRUCEEOING.................... il TABLE OF AUTHORITIES ....... DEN ceN RG ¥05 0.0: iV Rs EA ts.) > “OPES 1 RAEN l peg Ss a ee. oe te. ar 2 ee Liew eau dese §rssseeeersecenss: 12 THE FACT-SPECIFIC, UNANIMOUS DECISION OF THE COURT OF APPEALS APPROVING THIS CLASS ACTION SETTLEMENT AGREEMENT DOES NOT RAISE ANY ISSUE WARRANTING THIS COURT’S ELE OE 12 A. This Case Does Not Properly Present Any Constitutional Issue Concerning The Application Of Rule 23(b)(1) To Absent cath hese 5sSasideeecesacencsses 13 B. Even If The Due Process Issue Was Properly Presented, Certification Of This Rule 23(b)(1) Class Would Not Conflict With Shutts ...... 17 C. The Lower Courts’ Approval Of The Settlement Agreement As Fair, Reasonable, And Adequate To Class Members Presents No Issue Warranting This Court’s Review .. 19 GE wes Caden eae xt onsnctesseecsss 24 iV TABLE OF AUTHORITIES Cases PAGE Alexander v. NFL, 1977-2 Trade Cas. (CCH) 9 61,730 Ce, POPES i ih Ue ddk oon enenesek akenkes 18 Alger v. Hayes, 452 F.2d 841 (8th Cir. 1972)...... cae 15 Arata v. Nu Skin International, Inc., 1993 WL 321710 (9th Cir.) (opinion not reported) ......... 18 Arnold v. United Artists Theater Circuit, Inc., 158 F.R.D. 439 (1994), motion to reconsider or certify for interlocutory appeal denied, (N.D. Oe. Sls Salk SUID cha svncivedersavcusucnecasuass 17, 18 Berenyi v. District Director, lmmigration and Naturalization Service, 385 U.S. 630 (1967)..... 16, 20 Bowling v. Pfizer, Inc., 143 F.R.D. 141 (S.D. Ohio PRES sibss hed phacacseatssvsabaeerebetvewees teaaws 23 Branti v. Finkel, 445 U.S. 507 (1980) ...........-.000 16, 20 Broadcast Music, Inc. v. M.T.S. Enterprises, 811 F.2d Re Bs BT i cc codecdcsucnawdevenienvice tes 15 Brown vy. Ticor Title Insurance Co., 982 F.2d 386 (9th Cir. 1992), cert. dismissed, 114 S. Ct. 1359 PROC hi sks iui ta sii oni eces sel sence soucceascee 17, 18 Califano v. Yamasaki, 442 U.S. 682 (1979)............ 21 Capital Investors Co. v. Executors of Estate of Morrison, 800 F.2d 424 (4th Cir. 1986) .......... 15 Continental Bank, N.A. v. Meyer, 10 F.3d 1293 Ce ee I as oc a SKC ake Waw ERs ARERR aoe 15 4 PAGE Datskow v. Teledyne, Inc., Continental Products Division, 899 F.2d 1298 (2d Cir.), cert. denied, Ge Bi BOR CONTE Te ei med nsawccdaevesdacasncaes: 15 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)... 20 Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240 (S.D. Ohio DEEN A PCGusGueel Seal ds Winnie ses dadt + xeesenearets 23 Evans v. Jeff D., 4735 U.S. 717 (1986) ......cceccscecse 21 Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)... 20 Graver Tank & Manufacturing Co. v. Linde Air PROERCTE, FFO UD. 211 CAPES) oo cecciccscccnsaeess 16, 20 Grunin v. International House of Pancakes, 513 F.2d 114 (8th Cir.), cert. denied, 423 U.S. 864 SRE ss cv esacisiNdvcbecasevsewes sbesswessabuenens 20, 21 Huguley v. General Motors Corp., 128 F.R.D. 81 (E.D. Mich. 1989) aff’d, 925 F.2d 1464 (6th Cir.), cert. Gamied, FOL UD. FOO CGAL) occ cccncccsccess 23 In re Corrugated Container Antitrust Litig., 643 F.2d PA IE SE Riv udecnadcdvccusscssvtsvsieas es 23 In re Jackson Lockdown/MCO Cases, 107 F.R.D. 703 I ne ce oak anne sdewbasue Ss 17, 23 In re Texas Eastern Transmission Corp., 15 F.3d 1230 (3d Cir.), cert. denied, 115 S. Ct. 291 (1994) .... 15 In re Wolverine Radio Co., 930 F.2d 1132 (6th Cir. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) ........ 15 Jackson v. NFL, 802 F. Supp. 226 (D. Minn. 1992).....4, 22 vi PAGE League of Martin v. City of Milwaukee, 588 F. Supp. 1004 (B.D. Wats Fe aeaccarnssevessecdcesnves vanes 24 Leroy v. Great Western United Corp., 443 U.S. 173 (1979) .... .c0vecnckateeeeageeaeert hi aase shee. 14, 15 Lo Re v. Chase Manhattan Corp., 19 Fed. Empl. Prac. Cas. (BNA) 1366, 1369 (S.D.N.Y. 1979)......... 24 Luevano v. Campbell, 93 F.R.D. 68 (D.D.C. 1981).... 23 Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994 (ist Cop. EGR occurs eet ckasass 15 NCAA v. Board of Regents, 468 U.S. 85 (1984) ....... 20 Neirbo Co. v. Bethlehem Ship Building Corp., 308 U.S. 265 (RSPR cra cece ekawursavdeleeuss: 15 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (ADT) . .. scsn0ckenbeakdee eee Leases aus 20 Pardazi v. Cullman Medical Center, 896 F.2d 1313 Ci leh Cop. SOGR in ccccawe taken ange eaes tine vasass 15 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1965). . . In addition, as part of the global litigation settlement, the par- ties to various lawsuits between and among the NFLPA, NFL Properties, Inc. (the NFL’s licensing arm), various individual players, and various NFLPA and NFL Properties licensees, also reached a settlement of their lawsuits, under which the right of NFL players to engage in group licens- ing through the NFLPA was preserved and recognized. In addition, the NFLPA received $10 million in settlement payments and a guarantee of at least $5 million a year in additional licensing revenues from 1993 through 1999. All of the monies received by the NFLPA pursuant to this settlement will be distributed to, or used directly for the benefit of, NFL players. White, 822 F. Supp. at 1415-16; White, 836 F. Supp. at 1476. ea alll 1] June 1, 1993. Notice of the hearing was provided to all class members, including Petitioners, who had previously objected to approval of the Settlement Agreement. In an order dated June 2, 1993, the District Court preliminarily approved the proposed amended Settlement Agreement, ordered that notice again be mailed to class members and published, and gave all class members the opportunity to object in writing to the pro- posed amended Settlement Agreement. Plaintiffs thereafter mailed notice to the over 2,500 class members who were likely to be affected by the amendments to the Settlement Agreement and once again published notice in USA Today. White, 836 F. Supp. at 1469. Twenty-eight class members, all of whom had previously objected, and one defendant, submitted briefs and affidavits in opposition to the amended Settlement Agreement. A sec- ond “final” approval hearing was held on July 7, 1993, during which class members were again given the opportunity to pre- sent oral argument and testimony in opposition to the amended Settlement Agreement. /d. at 1470. After consider- ing all of the evidence and arguments presented, on August 20, 1993, the District Court entered a 116-page order in which the Court reaffirmed its prior order and concluded that the amended Settlement Agreement, as a whole, was in the best interests of the Class and should be approved. Proceedings Before the Court of Appeals On appeal, the Eighth Circuit affirmed the District Court’s determination that the Settlement Agreement was fair, reason- able and adequate, and in the best interests of the Class. White, 41 F.3d at 408. Further, the Court of Appeals unani- mously held that “each of the objectors either had minimum contacts with the forum or submitted himself to the jurisdic- tion of the District Court by appearing through counsel to contest the merits of the settlement, offering testimony, cross- examining witnesses, and filing numerous memoranda of law regarding the settlement.” /d. Based on this factual determi- 12 nation of waiver, the Court of Appeals found it unnecessary to “reach the [constitutional] issue raised by the objectors” regarding “whether a trial court may certify a non-opt-out plaintiff class in an action brought primarily for injunctive relief under Fed. R. Civ. P. 23(b)(1).” Jd. The Court of Appeals also rejected the claim by certain objectors that “the named plaintiffs and their counsel inade- quately represented the class.” /d. To the contrary, the Court of Appeals found “substantial evidence that the settlement agreement provides significant benefits to the class” from which the District Court “reasonably concluded that the inter- ests of the plaintiff class were protected by the settlement agreement.” /d. In addition, the Court of Appeals held that “class members received adequate notice of the proposed set- tlement and were given multiple opportunities to challenge their inclusion in the plaintiff class.” Jd. at 408-09. An order denying the motion by certain Petitioners for rehearing en banc was entered by the Court of Appeals on January 20, 1995. ARGUMENT THE FACT-SPECIFIC, UNANIMOUS DECISION OF THE COURT OF APPEALS APPROVING THIS CLASS ACTION SETTLEMENT AGREEMENT DOES NOT RAISE ANY ISSUE WARRANTING THIS COURT’S REVIEW The decision of the Court of Appeals does not present any “special” or “important” question of federal law which would warrant review by this Court. Supreme Court Rule 10. There is no conflict with the decisions of any circuit or the prior decisions of this Court. Nor is there any legal question of exceptional importance resolved by the decision below. Contrary to the claims of Petitioners, their “due process” challenge to the application of a Rule 23(b)(1) class certifi- 13 LAP be: cation to absent class members was never decided by the Court of Appeals below. Instead, all that the Court of Appeals did, in a unanimous opinion, was apply well-established authority to: (i) affirm, as a factual matter, that the individual objectors had waived their due process argument by vol- untarily appearing and challenging the merits of the White Settlement Agreement; (11) determine that the notice to the Class was proper and that the Class was adequately repre- sented; and (iii) determine that the District Court did not abuse its discretion in concluding that the Settlement Agree- ment was fair, reasonable, adequate and in the best interests of the Class. White, 41 F.3d 402. None of these fact-based determinations present any issue warranting review by this Court. i de OS 9 CWE hs hee! DE Wile Wt sie: Riow NN ie an te NT A. This Case Does Not Properly Present Any Constitu- tional Issue Concerning The Application Of Rule 23(b)(1) To Absent Class Members Petitioners claim to be seeking review of the application of this Court’s decision in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), to a Rule 23(b)(1) class action. That due process issue, however, was never reached or decided by the Court of Appeals below, and thus is not properly presented by the petitions. Rather, the Court of Appeals simply applied well-established authority to conclude that, as a factual mat- ter, each of the objectors had, by their actions, subjected themselves to the jurisdiction of the District Court (thus pre- cluding any due process objections). “It is a fundamental rule of judicial restraint. . . that this Court will not reach constitutional questions in advance of the necessity of deciding them.” Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 467 U.S. 138, 157 (1984), and cases cited therein. It thus has been this Court’s uniform “practice to avoid the unnecessary deci- sion of novel constitutional questions” when there exists a sufficient non-constitutional basis for resolving a dispute. See a 14 Leroy v. Great Western United Corp., 443 U.S. 173, 181 (1979); Ticor Title Insurance Co. v. Brown, __ U.S. __, 114 S. Ct. 1359 (1994). As the Court of Appeals concluded, a non- constitutional basis for the decision below (waiver) exists here, and thus there was and is no need to reach the due pro- cess issue asserted by Petitioners. Petitioner's constitutional argument is premised upon the decision in Shutts, where this Court determined that, in a class action “wholly or predominantly for money judgments,” a court could, consistent with due process, bind absent class members, not otherwise subject to the jurisdiction of the court, to a class action settlement, so long as it provided a number of procedural protections, including the right to opt- out. 472 U.S. at 811-12 & n.3. The new constitutional issue asserted by Petitioners is whether, consistent with the holding of Shutts, a court may bind absent class members, who are not otherwise subject to the jurisdiction of the court, to a non-opt- out Rule 23(b)(1) class, in which injunctive relief is pre- dominant but money damages are also being sought. The Court of Appeals, however, never decided this constitutional issue because of its factual determination that Petitioners had voluntarily submitted themselves to the District Court’s juris- diction by arguing the merits of the Settlement Agreement. Specifically, the Court of Appeals unanimously determined, as a factual matter, that each of the Petitioners submitted to the jurisdiction of the District Court, rather than making a special appearance solely to contest jurisdiction. In particu- lar, the Court of Appeals found that “each of the [Petitioners] either had minimum contacts with the forum or submitted himself to the jurisdiction of the District Court by appearing through counsel to contest the merits of the settlement, offer- ing testimony, cross-examining witnesses, and filing numer- ous memoranda of law regarding the settlement.” White, 41 F.3d at 408; White, 836 F. Supp. at 1503 nn. 92-95. Accord- ingly, the Court of Appeals found that Petitioners had waived any jurisdictional objections to the Rule 23(b)(1) non-opt-out 0 sl Ase aie Sader wicca aati 15 class so that it was unnecessary to reach the constitutional issue posed by Petitioners. White, 41 F.3d at 408; White, 836 F. Supp. at 1503 nn. 92-95. There is clearly no conflict between the Court of Appeals’ determination that Petitioners submitted to the jurisdiction of the District Court by their decision to argue the merits of the Seitlement Agreement, and any prior rulings of this Court or the various circuits. Indeed, this Court has long recognized that personal jurisdiction is a “personal privilege” of a party that may be waived. See Leroy, 443 U.S. at 180; /nsurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982): Neirbo Co. v. Bethlehem Ship Building Corp., 308 U.S. 165, 168 (1939) (the defense of latk of personal jurisdiction is a privilege, and can be lost in‘a number of ways, including “by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct’) (emphasis added). Applying this authority, every Court of Appeals has held that a party may submit itself to personal jurisdiction by actively litigating the merits of a case.’ Accordingly, the only jurisdictional issue decided by the Court of Appeals, and presented on this appeal, is the factual question of whether, by their actions, Petitioners submitted to 7 See, e.g., Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994, 997 (Ist Cir. 1983); Datskow v. Teledyne, Inc., Continental Products Division, 899 F.2d 1298, 1303 (2d Cir.), cert. denied, 498 U.S. 854 (1990); In re Texas Eastern Transmission Corp., 15 F.3d 1230, 1236 (3d Cir.), cert. denied, 115 S. Ct. 291 (1994); Capital Investors Co. v. Executors of Estate of Morrison, 800 F.2d 424, 429 (4th Cir. 1986); Broadcast Music, Inc. v. M.T.S. Enterprises, 811 F.2d 278, 279 (Sth Cir. 1987); In re Wolverine Radio Co., 930 F.2d 1132, 1138 (6th Cir. 1991); Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993); Alger v. Hayes, 452 F.2d 841, 842-43 (8th Cir. 1972); United States v. Vacant Land Located at 10th Street and Challenger Way in Palmdale, Cal., 15 F.3d 128, 131 (9th Cir. 1993); Pipkin v. United States Postal Service, 951 F.2d 272, 274 (10th Cir. 1991); Pardazi v. Cullman Medical Center, 896 F.2d 1313, 1317 (11th Cir. 1990). 16 the jurisdiction of the District Court. It is well-established that this Court will rarely disturb such “findings of fact in which two other courts below have concurred.” United States v. Doe, 465 U.S. 605, 614 (1984).® The reasons why this Court should not grant certiorari to consider due process issues not reached by the Court of Appeals below are underscored by the recent decision in Ticor Title Ins. Co. v. Brown, __ U.S. _., 114 §. Ct. 1359, 1362 (1994). In that case, this Court dismissed a grant of certiorari to consider a similar due process challenge to a non-opt-out class as being improvidently granted because the determina- tion of a non-constitutional question, not addressed in any of the previous proceedings in Brown, might have made reso- lution of the constitutional issue unnecessary. /d. at 1361-62. A fortiori, any grant of certiorari to consider a due process challenge would be improvident in this case, since the Court of Appeals has already determined that it was not necessary to reach these due process issues. Petitioners’ assertion that the Court of Appeals “of neces- sity” determined the due process issue for the Class (Petition of Sean Jones, et al. (“Jones Pet.”) at 3, 11) is without merit. The Court of Appeals merely held that by submitting to per- sonal jurisdiction before the District Court, these individual class members had waived any due process objections. Noth- ing in the Court of Appeals’ opinion would preclude other class members, who did not submit to personal jurisdiction, from arguing in a subsequent action that a Rule 23(b)(1) class cannot preclude their individual damages claims (although, as discussed below, Respondent/Plaintiffs would disagree with such an argument). . See also Rogers v. Lodge, 458 U.S. 613, 623 (1982); Branti v. Finkel, 445 U.S. 507, 512 (1980); Berenyi v. District Director, Immi- gration and Naturalization Service, 385 U.S. 630, 635-36 (1967); Graver Tank & Mfg. Co. v. Linde Air Products, 336 U.S. 271, 275 (1949). 17 B. Even If The Due Process Issue Was Properly Pre- sented, Certification Of This Rule 23(b)(1) Class Would Not Conflict With Shutts Alternatively, if the due process issue had not been waived, certiorari would still be inappropriate because the certifica- tion of this class action under Rule 23(b)(1) was wholly con- sistent with this Court’s decision in Shutts, which was expressly limited to class actions in which the claims are “wholly or predominantly for money damages.” 472 U.S. at 811 n.3. The Petitioners’ assertion that Shutts implicitly holds that there is a due process right for class members not subject to personal jurisdiction to opt-out of a 23(b)(1) class action, such as this, involving predominant claims for injunctive relief (see Petition of Mark Dusbabek, et al. (“Dusbabek Pet.”) at 11, 12; Jones Pet. at 2, 8) is directly at odds with this Court’s “wholly or predominantly” test. PWR Cel DN a ee tT As the District Court found below, “the plaintiff class’ claims for structural, injunctive relief ‘predominate’ over its claims for damages” (see White, 822 F. Supp. at 1411; White, 836 F. Supp. at 1472). This determination flowed directly from the fact that the principle relief sought and obtained by the Class was the radically new free agency system created by ‘the Settlement Agreement. Such a non-opt-out class action, which is not “wholly or predominantly” for money damages, does not conflict with Shutts.° For the same reason, this case does not present any conflict with the decision in Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir. 1992), cert. dismissed as improvidently granted, 1148S. Ct. 1359 (1994). The Ninth Circuit in Brown expressly 9 See, e.g., Arnold v. United Artists Theater Circuit, Inc., 158 F.R.D. 439, 464 (1994), motion to reconsider or certify for interlocutory appeal denied, (N.D. Cal. Sept. 15, 1994); In re Jackson Lockdown/MCO cases, 107 F.R.D. 703, 713-14 (E.D. Mich. 1985); 7B C. Wright, A. Miller & M. Kane. Federal Practice & Procedure § 1789, at 256 (2d ed. 1986); | H. Newberg & A. Conte, Newberg on Class Actions § 1.19, at 1-18. 18 recognized that the ruling in Shutts applied solely to “claims wholly or predominantly for money damages.” Brown, 982 F.2d at 392. It then went on to hold that the specific 23(b)(1) class at issue before it was subject to the opt-out requirements of Shutts because the predominant claims at issue were for monetary relief. Indeed, since the decision in Brown, the Ninth Circuit has had occasion to rule that a district court did not abuse its discretion by certifying a non-opt-out damages and injunctive relief class under Rule 23(b)(1), where the claims for money damages did not predominate. See Arata v. Nu Skin International, Inc., 1993 WL 321710 (9th Cir.) (opin- ion not reported). Where, as here, “a lawsuit (1) combines claims for monetary relief with claims for declaratory or injunctive relief, and (2) the monetary claims do not ‘pre- dominate,’ . . . no additional notice or chance to opt-out is required in order to satisfy due process requirements.” Arnold v. United Artists Theater Circuit, Inc., 158 F.R.D. 439, 464 (1994), motion to reconsider or certify for interlocutory appeal denied, (N.D. Cal. Sept. 15, 1994). The reasons why a right to opt-out for absent class mem- bers is not required by due process in the different circum- stances presented by a class action in which claims for money damages are not predominant stem from the fact that the pro- tection of the rights of individual class members is much more interdependent with the resolution of the rights of other class members in actions in which substantial injunctive relief is being sought. See White, 822 F. Supp. at 1412, citing 1 H. Newberg & A. Conte, Newberg on Class Actions § 1.20 (3d ed. 1992). This is particularly evident in antitrust class actions brought by professional athletes which seek sub- Stantial injunctive relief in order to create a single new, highly interdependent free agency system for all class members. It is thus not surprising that all prior antitrust class action settle- ments by players in professional team sports, including Alexander v. NFL, 1977-2 Trade Cas. (CCH) 961,730 (D. Minn. 1977), and Robertson v. NBA, 72 F.R.D. 64 (S.D.N.Y. 19 1976), aff'd, 556 F.2d 682 (2d Cir. 1977), have been non-opt- out settlements, which included both a new free agency sys- tem (through injunctive relief) and a settlement of damages claims. This long-standing and well-established principle of class action law and practice does not present any conflict with the due process requirements for class actions predom- inantly seeking monetary damages articulated by Shutts. Petitioners’ argument that they should be able to reap the substantial benefits of the new free agency system created by the injunctive relief portion of the Settlement Agreement, while retaining their right to opt-out of the damages part, would make it virtually impossible to settle 23(b)(1) class actions in which claims for injunctive relief predominate. Consider, for example, the enormous benefits received from the new free agency system by petitioner O’Neal, who increased his average yearly compensation by 180% as a free agent; Petitioner Allen, who increased his compensation by 300%; Petitioner Martin, who enjoyed a 120% increase; Peti- tioner Dishman, who received an 80% increase; and Petitioner Hurst, who reaped a 240% increase.'° Due process does not require that such class members, who necessarily receive the substantial benefits of the injunctive relief provided by the Settlement Agreement, also be given the right to pick and choose whether they are willing to accept the damages part of the same settlement. C. The Lower Courts’ Approval Of The Settlement Agreement As Fair, Reasonable, And Adequate To Class Members Presents No Issue Warranting This Court’s Review Each of the Petitioners’ remaining arguments for certiorari review present challenges to fact-specific determinations by 10 These amounts are over and above the substantial damages pay- ments these Petitioners will receive pursuant to the Settlement Agree- ment, which total over $2.2 million, representing an average payment of over $125,000 to each Petitioner. 20 the courts below arising out of their approval of the Settle- ment Agreement. However, this Court has held that it will not “undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional show of error.” Graver Tank & Mfg. Co. v. Linde Air Prod- ucts, 336 U.S. 271, 275 (1949), and cases cited therein; United States v. Johnston, 268 U.S. 220, 227 (1925) (“We do not grant a certiorari to review evidence and discuss specific facts.”).'' No such “obvious and exceptional” error has been identified by Petitioners. 1. Federal Rule of Civil Procedure 23(e) requires that notice of a class action settlement be provided to all members of a class. It is well settled that the mechanics of the notice process are left to the sound discretion of the district court, subject only to “the broad ‘reasonableness’ standards imposed by due process,” and will not be upset absent a clear showing that the district court abused its discretion. Grunin v. Inter- national House of Pancakes, 513 F.2d 114, 121 (8th Cir.), cert. denied, 423 U.S. 864 (1975); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 354-59 (1978) (reviewing class action notice under abuse of discretion standard). Although the Petitioners challenge the notice to the Class ordered below (see Dusbabek Pet. at 14-15), it is clear that these claims are frivolous. The District Court ordered notice by publication in a national newspaper, and individualized notice of the Settlement Agreement by direct mail to all iden- tifiable class members. White, 836 F. Supp. at 1462, 1466. This Court has held that such notice by mail is the best pos- sible type of notice under the circumstances. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 175 (1974) (where names and addresses of class members are readily ascertainable, 1 See also Berenyi, 385 U.S. at 635; Branti, 445 U.S. at 512 n.6; Rogers, 458 U.S. at 623 (1982); Doe, 465 U.S. 605: NCAA v. Board of Regents, 468 U.S. 85, 98 n.15 (1984); Goodman vy. Lukens Steel Co. 482 U.S. 656, 665 (1987). 21 individual notice by mail is “clearly the best notice practi- cable”). Accordingly, there cannot possibly be an issue wor- thy of Supreme Court review in the details of the individual notice that both courts below approved. 2. Similarly, Petitioners fail to cite any cert-worthy issue arising out of the Court of Appeals’ approval of the Settle- ment Agreement as fair, reasonable and adequate, and in the best interests of the Class (see Dusbabek Pet. at 18-19). To the contrary, all of the Petitioners’ claims in this regard are primarily factual in nature and amount to a request for this Court to review those factual findings. As this Court has repeatedly recognized, the determination of the fairness and adequacy of a class action settlement is principally a factual one left to the discretion of the District Court, which should not be overturned on appeal unless it constitutes a clear abuse of discretion. See, e.g., Evans v. Jeff D., 475 U.S. 717, 742-43 (1986) (“we shall rely primarily on the sound discretion of the district courts to appraise the rea- sonableness of particular class-action settlements on a case- by-case basis, in the light of all the relevant circumstances”); Califano v. Yamasaki, 442 U.S. 682, 703 (1979) (reviewing class action certification under abuse of discretion standard). The reason for such deference is that only the district court is “exposed to the litigants, and their strategies, positions and proofs. He is aware of the expense and possible legal bars to success. Simply stated, he is on the firing line and can eval- uate the action accordingly.” Grunin, 513 F.2d at 123. In this case, the District Court Judge, David S. Doty, devel- oped a thorough knowledge and understanding of the issues involved in the Settlement Agreement through his experience in presiding over both the White action and a host of prior actions in which NFL player movement rules were at issue. Of particular assistance to Judge Doty was his experience in presiding over, and his familiarity with the record in, McNeil v. NFL, which included a three month trial which resulted in 22 over 8,000 pages of trial transcript and over 400 exhibits. See White, 836 F. Supp. at 1467 n.24. In detailed findings of fact, set out in two lengthy and exhaustive opinions, Judge Doty found that the Settlement Agreement provided enormous benefits to the class, both in its creation of a new free agency system—which has led to unprecedented player movement and vastly higher salaries to NFL players—and in its payment of $115 million to class members for injuries arising out of Plan B and other restric- tions imposed in the past by the NFL clubs."* See White, 822 F. Supp. at 1412-14, 1419. After weighing these significant benefits against the prospect of continuing with protracted and risky litigation, as well as the irreparable injury to class members that would be caused by any new set of restrictions that the NFL would likely attempt to impose, the District Court reached the well-supported conclusion that the Settle- ment Agreement was in the best interests of the Class. /d. at 1432. This was particularly true in light of the short careers of most class members, who would be long retired from the NFL before all litigation was complete. See Jackson, 802 F. Supp. at 231. Moreover, the fact that (i) less than 2% of all class mem- bers ever objected to the Settlement Agreement, and (11) the terms of the new free agency system were incorporated almost verbatim in a collective bargaining agreement approved by over 96% of the NFL players who voted on ratification, pro- vides compelling evidence of the overwhelming support 12 Between March |, 1993, when the new free agency rules went into effect, and June 23, 1993, the average salaries of NFL players who signed new contracts more than doubled, exceeding $1 million per year. White, 836 F. Supp. at 1479-80. In addition to such huge salary increases, there has been unprecedented player movement under the new free agency system. In 1993, and again in 1994, over 100 NFL players switched clubs as Unrestricted Free Agents. Thus, the marketplace expe- rience under the new free agency system provides “substantial evidence that the Settlement Agreement provide[d] significant benefits to the class.” White, 41 F.3d at 408 (citing White, 836 F. Supp. at 1479-83). be Sn a En a ee ee ee ee ee eee eee a ene 23 among class members for the Settlement Agreement. This fur- ther demonstrates why there is no cause for this Court to grant certiorari to review the lower courts’ fact-based approval of the Settlement Agreement. 3. Finally, Petitioners fail to raise any cert-worthy issue in their challenge to the adequacy of class representation. As both lower courts held, “the adequacy of class represen- tation. . . is ultimately determined by the settlement itself.” White, 41 F.3d at 408; White, 822 F. Supp. at 1406.'? Accord- ingly, there can be little doubt that such representation was adequate where, as here, the Class received hundreds of mil- lions of dollars in free agency benefits and $115 million in actual damages (in addition to the other substantial benefits provided by the global litigation settlement). Similarly, there is no reason for this Court to review the Court of Appeals’ determination that the fact that “named plaintiffs received additional awards based on their efforts and risks in the case” did not render them inadequate class representatives (White, 41 F.3d at 408). As numerous other courts have held, such additional consideration to class rep- resentatives who gain substantial benefits for the class is often appropriate and within the sound discretion of the dis- trict court to approve. See Luevano v. Campbell, 93 F.R.D. 68, 69 (D.D.C. 1981) (“where there are sufficient indications that the class has been treated fairly and that the relief for the named plaintiffs is not excessive, the provision of greater monetary relief for the named plaintiffs than for class mem- bers does not warrant disapproval of the settlement”).'* There - See also In re Corrugated Container Antitrust Litig., 643 F.2d 195, 212 (Sth Cir. 1981); Bowling v. Pfizer, Inc., 143 F.R.D. 141, 152 (S.D. Ohio 1992) 14 See also Thornton v. East Texas Motor Freight, 497 F.2d 416, 470 (6th Cir. 1974) ; Enterprise Energy Corp. v. Columbia Gas Trans- mission Corp., 137 F.R.D. 240, 250 (S.D. Ohio 1991); In re Jackson Lockdown/MCO Cases, 107 F.R.D. at 710; Huguley v. General Motors Corp., 128 F.R.D. 81, 85 (E.D. Mich. 1989) aff'd, 925 F.2d 1464 (6th 24 was more than an adequate record to support the lower courts’ determinations that the class representatives here—who risked retaliation from the NFL to obtain the substantial relief granted to the Class—deserved the limited additional benefits that were provided. CONCLUSION For the foregoing reasons, Petitioners have failed to raise any issues that warrant this Court’s review and their Petitions for Certiorari should be denied. Dated: May 22, 1995 Respectfully submitted, James W. Quinn WEIL, GOTSHAL & MANGES Counsel of Record 767 Fifth Avenue Jeffrey L. Kessler New York, New York 10153 Jonathan T. Weiss (212) 310-8000 David G. Feher Yoav M. Griver LINDQUIST & VENNUM Of Counsel 4100 IDS Center ot 2, Minneapolis, Minnesota 55402 Charles J. Lloyd (612) 371-321] Mark A. Jacobson Class Counsel and Attorneys Of Counsel for Respondents/Plaintiffs Cir.), cert. denied, 502 U.S. 909 (1991); Lo Re v. Chase Manhattan Corp., 19 Fed. Empl. Prac. Cas. (BNA) 1366, 1369 (S.D.N.Y. 1979); League of Martin v. City of Milwaukee, 588 F. Supp. 1004, 1020 (E.D. Wis. 1984); Women’s Committee v. National Broadcasting Co., 76 F.R.D. 173, 180 (S.D.N.Y. 1977). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1639%3A2. Public record. Not legal advice.