CASE 0:09-cv-02182-PAM-AJB Document 246 Filed 12/10/12 Page 1 of 6

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

John Frederick Dryer, et al., Civil No. 09-2182 PAM/AJB Plaintiffs, v. National Football League, Defendant. ORDER ON MOTION FOR ORDER TO SHOW CAUSE AND STRIKING DECLARATIONS

This action comes before the Court, Chief Magistrate Judge Arthur J. Boylan, on defendant NFLs Motion for an Order to Show Cause [Docket No. 230]. Hearing was held on December 5, 2012, at the U.S. Courthouse, 300 South Fourth Street, Minneapolis, MN 55415. The NFL seeks an order requiring Robert Lurtsema, a putative class member, to appear and show cause why he should not be held in contempt for violation of a confidentiality order by way of Internet publication of a letter that discloses information relating to confidential, court directed settlement discussions. Plaintiffs motion to quash a subpoena issued to Ms. Lurtsema and for protective order is also before the court [Docket No. 240]. Based upon the files and records in this action, along with the declarations of parties, and the memorandums and arguments of counsel, it is HEREBY ORDERED that defendants Motion for an Order to Show Cause is denied [Docket No. 230] and the Dryer Group Plaintiffs Motion to Quash Subpoena Issued to Non-party Robert Lurtsema and Motion for Entry of a Protective Order is moot [Docket No. 240]. It is FURTHER ORDERED that Declarations that have been filed in this case at Docket Nos. 237, 238,

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239, 242, 243, and 244 are hereby stricken and the content of those declarations shall be sealed.

Dated:

December 10, 2012

s/Arthur J. Boylan Arthur J. Boylan United States Chief Magistrate Judge

MEMORANDUM This case, along with additional actions that were subsequently consolidated with this matter, was commenced by various retired NFL players on behalf of themselves and all others similarly situated. The essence of the suit is a claim by retired NFL players for compensation for use of the players identities and images to promote the NFL and NFL products by way of films and other commercial ventures. The operative pleading is a Consolidated Amended Class Action Complaint filed on November 15, 2011.1 Three separate law firms have been appointed to serve as interim co-lead class counsel for the named plaintiffs and the proposed classes.2 The court has been involved in negotiations to settle the case since at least July 2012.3 Because of case complexities and divergent concerns and interests of the putative class members, much of the discussion has focused on resolution of issues within the plaintiff class as well as
1

Docket No. 142.

2 Docket No. 137. Law firms named as interim co-lead counsel are Hausfeld LLP, Bob Stein LLC, and Zimmerman Reed, PLLP.

Extensive settlement/status conferences took place on July 10, 2012; July 30, 2012; September 6, 2012; October 17, 2012; and November 27, 2012. 2

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disputes between the plaintiffs and the NFL. Meanwhile, defendants moved for partial summary judgment, asserting that plaintiffs causes of action are subject to federal and/or state periods of limitation and many, if not most of the claims are therefore time-barred. In an Order filed September 5, 2012, the court ordered that: pending the outcome of the settlement negotiation, [] 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.4 The most recent conference, held on November 27, 2012, was attended by most, if not all of the named plaintiffs. In addition, a number of other retired NFL players who are putative class members, but are not named plaintiffs, were in attendance. Robert Lurtsema is in this latter group. Open and frank discussions regarding settlement of this case were held. Counsel for the defendants put forth the NFLs position as to settlement to the retired players and counsel for plaintiffs likewise made presentations to the players on the differing plaintiff positions. In addition, the court spoke with the retired players as a group and subsequently talked privately with the lawyers and with various players, both individually and in smaller groups. In short, efforts to settle this matter were conducted as settlement efforts are quite typically conducted in cases involving multiple parties. In any event, the case was not resolved on November 27, 2012, though the prospect of a resolution short of contested litigation, did not seem to be foreclosed, at least in the courts view.

Docket No. 212. 3

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On December 4, 2012, defendant NFL filed the motion for order to show cause that is now before the court. It is the NFLs contention that Mr. Lurtsema recently sent a letter to an Internet blogger who then published the letter, thereby revealing several specific and significant areas of discussion and disagreement as to settlement positions as expressed at the November 27, 2012 conference. The NFL seeks an order requiring Mr. Lurtsema to take steps necessary to remove the offending letter, compelling Mr. Lurtsema to appear before the court on the following day to provide details as to who was involved in drafting and publishing the letter and show cause why he should not be held in contempt, and admonishing the plaintiffs and their counsel that settlement discussions are to be held in strict confidence. Mr. Lurtsema did not appear at the hearing on December 5, 2012, though co-lead counsel Robert Stein appeared on his behalf to argue in opposition to the motion. It is the courts determination that the motion for order to show cause is properly denied on grounds that Mr. Lurtsema is not a named plaintiff in this case and he is therefore not subject to a contempt finding for violation of the Order on confidentiality filed on September 5, 2012. Furthermore, the court concludes that further hearing and/or discovery for the purpose of determining whether Mr. Lurtsemas blog correspondence was done at the prompting of a named party or counsel in this matter is unwarranted and not likely to be fruitful and is therefore denied. With respect to the subpoena for Mr. Lurtsemas appearance at the hearing, the court finds that under the circumstances the motion to quash the subpoena and for protective order is moot.

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Despite the courts determination that defendants motion for an order to show cause with respect to the Lurtsema letter will not be granted, the court cannot ignore the fact that the letter discusses matters that occurred in the context of efforts at settlement of this case. This episode is an apt example of why confidentiality of ongoing settlement discussions is important and ought to be generally protected. It is essentially a matter of trust and breach of such trust is somewhat disheartening and greatly counterproductive. In response to the defendants motion, several named plaintiffs filed identical declarations that stated the content of direct and private discussions with the court concerning settlement and application of the previously quoted Order prohibiting discussions with the media. The declarations explicitly acknowledge that the discussions were private and concerned possible settlement. Such settlement focused conversations are confidential without respect to the existence of any ancillary order and the declarations purporting to state the contents of conversations are therefore stricken from the court docket.5 While the court declines to find publication of the letter sanctionable, the letter completely ignores numerous issues and the existence of certain legal realities and serious risks involved in the case, and while advising retired players that acceptance of the settlement should be your own call to make, they are only provided limited information and a view into personal animosities which have little relevance to the merits

Five of the six declarations are short prepared formal statements that are identical in substance, leaving only the name of the declarant blank. One on them includes an additional handwritten comment. The sixth declaration is an e-mail to counsel indicating general agreement with the content of the formal declarations. There can be little doubt that the declarations were prepared and circulated for signatures by counsel. 5

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of the case or the settlement. In the end, the letter really reveals very little about proposals for settlement of this matter, but does a significant disservice to the putative plaintiff class members6 it presumes to inform or persuade, as well as to the court and the defendant.

Though this case is brought on behalf on behalf of named retired players and all others similarly situated, a plaintiff class has not been certified. Whether a class is ultimately certified has substantial implications as to settlement and future litigation of this case. 6