Transcript
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-3581
___________________________
James Lawrence Marshall; Joseph Michael Senser; Dante Anthony Pastorini
lllllllllllllllllllll Plaintiffs - Appellants
Fred Barnett; Tracy Simien; Darrell Alexander Thompson; James Nathaniel
Brown; Mark Gregory Clayton; Irvin Acie Cross; Brian Duncan; Billy Joe Dupree;
Michael James Haynes; Paul James Krause; Reginald McKenzie; Reginald Joseph
Rucker; Jackie Larue Smith, on behalf of themselves and all others similarly situated
lllllllllllllllllllll Plaintiffs - Appellees
John Frederick Dryer; Elvin Lamont Bethea; Edward Alvin White; Lemuel Joseph
Barney; Bruce Allan Laird; Preston Pearson; Jim Ray Smith
lllllllllllllllllllll Plaintiffs
v.
National Football League
lllllllllllllllllllll Defendant - Appellee
___________________________
No. 13-3582
___________________________
Marcus Dell Gastineau; Abdul Salaam
lllllllllllllllllllll Plaintiffs - Appellants
Fred Barnett; Tracy Simien; Darrell Alexander Thompson; James Nathaniel
Brown; Mark Gregory Clayton; Irvin Acie Cross; Brian Duncan; Billy Joe Dupree;
Michael James Haynes; Paul James Krause; Reginald McKenzie; Reginald Joseph
Rucker; Jackie Larue Smith, on behalf of themselves and all others similarly situated
lllllllllllllllllllll Plaintiffs - Appellees
John Frederick Dryer; James Lawrence Marshall; Joseph Michael Senser; Elvin
Lamont Bethea; Dante Anthony Pastorini; Edward Alvin White; Lemuel Joseph
Barney; Bruce Allan Laird; Preston Pearson; Jim Ray Smith
lllllllllllllllllllll Plaintiffs
v.
National Football League
lllllllllllllllllllll Defendant - Appellee
___________________________
No. 13-3666
___________________________
Jed Weaver
lllllllllllllllllllll Plaintiff - Appellant
Fred Barnett; Tracy Simien; Darrell Alexander Thompson; James Nathaniel
Brown; Mark Gregory Clayton; Irvin Acie Cross; Brian Duncan; Billy Joe Dupree;
Michael James Haynes; Paul James Krause; Reginald McKenzie; Reginald Joseph
Rucker; Jackie Larue Smith, on behalf of themselves and all others similarly situated
lllllllllllllllllllll Plaintiffs - Appellees
-2-
John Frederick Dryer; James Lawrence Marshall; Joseph Michael Senser; Elvin
Lamont Bethea; Dante Anthony Pastorini; Edward Alvin White; Lemuel Joseph
Barney; Bruce Allan Laird; Preston Pearson; Jim Ray Smith
lllllllllllllllllllll Plaintiffs
v.
National Football League
lllllllllllllllllllll Defendant - Appellee
____________
Appeals from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: December 10, 2014
Filed: May 21, 2015 (Corrected: June 16, 2015)
____________
Before BYE, SMITH, and KELLY, Circuit Judges.
____________
BYE, Circuit Judge
Six former National Football League ("NFL") players ("Appellants") appeal
the district court's approval of the class-action settlement between nearly 25,000 class
members and the NFL. The negotiated settlement agreement resolves the litigation
surrounding the NFL's use of former NFL players' likenesses and identities. The
complex settlement—a product of numerous settlement conferences and years of
litigation—provides two unique benefits to the class: (1) the establishment of a
licensing agency to assist former NFL players in marketing their publicity rights with
the support of the NFL; and (2) up to a $42 million payout by the NFL for the benefit
-3-
of the class. Appellants contend the district court1 abused its discretion in approving
the settlement because it does not provide for a direct financial payment to each class
member and is not fair, reasonable, and adequate. We affirm.
I
The class action complaint alleges that for many years NFL Films—the
commercial filmmaking wing of the NFL—has used the names, images, likenesses,
and identities of former NFL players in its various videos to generate revenue and
promote the NFL. The NFL Films videos are "promotional film productions with
scripts, music, editing, direction and production completely independent of the play
and production of the games themselves." They seek to provide fans with the story
of the game, such as the "perspective of the game that perhaps [fans] were not aware
of when they watched the broadcast on network television." According to
Appellants, the use of the players' likenesses and identities has helped the NFL gain
substantial profits and improve its brand.
In 2009, Appellants brought this class action against the NFL on behalf of a
class of former NFL players whose name, voice, image, or likeness was used by the
NFL to gain profit or promote the NFL. The class asserted claims for false
endorsement under the Lanham Act, 15 U.S.C. § 1125, common law and statutory
rights of publicity claims under several states' laws, and unjust enrichment. The NFL
moved for judgment on the pleadings, contending the claims failed because they were
either precluded by the First Amendment, preempted by the Copyright Act, or were
insufficient to constitute false endorsement. At the pleadings stage, the district court
denied the motion, and the parties proceeded to discovery. More than two years into
the litigation, the NFL moved for partial summary judgment on issues regarding
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
-4-
choice of law and the applicable statute of limitations. The district court held that all
claims prior to August 23, 2003, were time-barred, all claims arising between August
23, 2003, and August 1, 2004, were governed by Minnesota's statute of limitations,
and that it was premature to determine the choice of law and applicable statute of
limitations for all remaining claims.
On December 12, 2012, pursuant to Federal Rule of Civil Procedure 23(d) and
(g), the Magistrate Judge2 appointed a lead settlement counsel to act as a single
representative for the class in settlement discussions. See Dryer v. Nat'l Football
League, No. 09-2182 (PAM/AJB), Dkt. No. 250, at *1 (D. Minn. Dec. 12, 2012). The
Magistrate Judge explained that lead settlement counsel was necessary because the
settlement discussions and settlement process stalled due to "serious disagreements
among the three lead counsel for Plaintiffs." Id., Dkt. No. 252, at *1. The Magistrate
Judge hoped to "restart the settlement negotiations without the distractions presented
by Plaintiffs' co-lead counsel's disagreements and to protect the interests of the
putative class as a whole." Id. at *2.
On March 18, 2013, the plaintiffs filed a second amended complaint, adding
other named plaintiffs, and a motion for preliminary approval of the settlement
agreement. In summary form, the complex sixty-page settlement agreement provides
for the following:
(1) The creation of the Common Good Entity, a non-profit organization;
(2) Payment of up to $42 million by the NFL to the Common Good
Entity over eight years;
(3) The establishment of the Licensing Agency;
2
The Honorable Arthur J. Boylan, United States Magistrate Judge for the
District of Minnesota, now retired.
-5-
(4) Payment of $100,000 worth of media value to the Licensing Agency
each year until 2021;
(5) Payment of attorneys' fees and settlement administration expenses;
(6) A reserve for the NFL's potential fees and costs of litigation
involving class members who opt out of the settlement; and
(7) The class members' perpetual release of any claims and all their
publicity rights for the NFL and its related entities to use.
The Common Good Entity is "dedicated to supporting and promoting the health
and welfare of Retired Players and other similarly situated individuals." Under the
settlement, the NFL is obligated to pay up to $42 million over eight years to the
Common Good Entity, which will then disburse the money to charitable organizations
or health and welfare organizations for the benefit of class members. Disbursement
from the Common Good Entity may only be for (1) medical research; (2) short-term
and long-term housing; (3) health and dental insurance coverage; (4) medical
screening and evaluations; (5) mental health programs; (6) wellness programs; (7)
career transition programs; (8) any medical costs not covered by health insurance; and
(9) other uses as approved by the Board of Directors of the Common Good Entity.
After ten years, any remaining funds initially contributed by the NFL revert back to
the NFL for its charitable use. The NFL may also deduct up to $13.5 million from the
$42 million obligation for any expenses related to litigation involving class members
who opt out of the settlement.
The Licensing Agency created by the settlement allows for one-stop shopping
for those seeking to purchase the publicity rights of former NFL players. Like the
Common Good Entity, the Licensing Agency is an organization with a Board of
Directors that includes class members. Class members may provide authorization (or
withdraw it at any time) for the Licensing Agency to license the player's publicity
rights to opportunities identified by the Licensing Agency. The Licensing Agency
has selected IMG, one of the largest and most successful sports marketing firms in the
-6-
world, to assist its operations and identify marketing and business opportunities.
Under the settlement, the NFL is obligated to provide $100,000 worth of media value
each year until 2021 for the Licensing Agency's commercials. The NFL is also
obligated to work cooperatively with the Licensing Agency for referral business and
opportunities and, in good faith as it would with any other licensee, provide any
potential licensee of the Licensing Agency with licensing for the NFL shield
trademark or copyrighted game footage. Proceeds from the Licensing Agency will
be divided between the Common Good Entity and the class member whose rights are
sold, with the class member receiving seventy-five percent of the proceeds. The
Licensing Agency is expected to significantly reduce transaction costs and unlock the
value of the group publicity rights of the class members.
After a hearing, the district court preliminarily approved the settlement and
certified the class under Rule 23(b)(3). Over the objections of several named
plaintiffs, the district court reasoned the settlement was fair, reasonable, and adequate
because it provided a "direct[] benefit[ to] those in whose name th[e] lawsuit was
purportedly brought." Dryer v. Nat'l Football League, No. 09-2182 (PAM/AJB), Dkt.
No. 270, at *2 (D. Minn. Apr. 8, 2013). The court also rejected the notion that the
settlement constituted an improper cy pres distribution. Id. at *4. Upon notice to all
class members and the expiration of the exclusion and objection deadlines, and after
a hearing for the final approval of the settlement, the district court issued its order
approving the settlement. When the opt-out period closed, nearly 25,000 class
members remained and 2,073 sought to opt out. Dryer v. Nat'l Football League, No.
09-2182 (PAM/AJB), 2013 WL 5888231, at *1 (D. Minn. Nov. 1, 2013). Another
thirty-eight made an untimely request, and one more inadvertently withdrew his
exclusion request, all of whom were excluded from the class. Id. Nineteen members
filed objections, seven of whom also requested to be excluded. Id. After a
supplemental notice was issued because of a violation of a preliminary injunction put
in place by the district court, 158 class members timely withdrew their requests for
exclusion and 6 filed untimely requests; all were included in the class. Id. at *2.
-7-
II
"We generally review for abuse of discretion a 'district court's decision to
approve [a] global settlement over' objections." In re Uponor, Inc. F1807 Plumbing
Fittings Prods. Liab. Litig., 716 F.3d 1057, 1063 (8th Cir. 2013) (alteration in
original) (quoting In re BankAmerica Corp. Sec. Litig., 350 F.3d 747, 752 (8th Cir.
2003)). "Only upon the clear showing that the district court abused its discretion will
this court intervene to set aside a judicially approved class action settlement."
Reynolds v. Nat'l Football League, 584 F.2d 280, 283 (8th Cir. 1978). We have
explained that considerable deference is due to the district court's approval of a
settlement:
[The] determination is committed to the sound discretion of the trial
judge. Great weight is accorded his views because he 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 evaluate the action accordingly.
Van Horn v. Trickey, 840 F.2d 604, 606-07 (8th Cir. 1988) (quoting Grunin v. Int'l
House of Pancakes, 513 F.2d 114, 123 (8th Cir. 1975)). "A settlement agreement is
'presumptively valid.'" In re Uponor, 716 F.3d at 1063 (quoting Little Rock Sch. Dist.
v. Pulaski Cnty. Special Sch. Dist. No. 1, 921 F.2d 1371, 1391 (8th Cir. 1990)).
"[M]indful of the limited scope of our review . . . [w]e ask whether the District Court
considered all relevant factors, whether it was significantly influenced by an
irrelevant factor, and whether in weighing the factors it committed a clear error of
judgment." Little Rock Sch. Dist., 921 F.2d at 1391.
The district court may only approve a class action settlement if it is "fair,
reasonable, and adequate." Fed. R. Civ. P. 23(e)(2). To make the determination, the
district court must consider four factors: "(1) the merits of the plaintiff's case
weighed against the terms of the settlement, (2) the defendant's financial condition,
-8-
(3) the complexity and expense of further litigation, and (4) the amount of opposition
to the settlement." In re Uponor, 716 F.3d at 1063 (quoting Van Horn, 840 F.2d at
607). "The single most important factor in determining whether a settlement is fair,
reasonable, and adequate is a balancing of the strength of the plaintiff's case against
the terms of the settlement." Van Horn, 840 F.2d at 607.
Before addressing these four factors, we must first address Appellants' initial
challenge that the settlement fails as a matter of law. Although the three sets of
appellants present the arguments in varying ways, they distill to two principled
arguments: the settlement fails because (1) it does not provide any direct benefit to
the class; and (2) it makes the financial payment to a third-party and not each class
member directly.
We begin with the guiding principle that "a class action settlement is a private
contract negotiated between the parties." In re Wireless Tel. Fed. Cost Recovery Fees
Litig., 396 F.3d 922, 934 (8th Cir. 2005). The court's role in reviewing a negotiated
class settlement is to "to ensure that the agreement is not the product of fraud or
collusion and that, taken as a whole, it is fair, adequate, and reasonable to all
concerned." Id.
Appellants argue the settlement fails because it offers no benefit to the class.
They attempt to characterize the settlement as simply giving away their proceeds to
a third-party charity. Plainly, this is not true and the argument is wholly without
merit. As more fully discussed below, the settlement agreement provides for two
substantial and direct benefits to the class as a whole: the Licensing Agency and a
payment of up to $42 million for the benefit of the class.
Appellants also argue the settlement fails because the financial payout for the
class is made through a third-party organization and not directly to each class
member. But we have never required that a settlement agreement specifically provide
-9-
for a direct financial payment to each class member, and the mere fact that some
members of a class may not receive a direct payment is not dispositive. See In re
Wireless, 396 F.3d at 934; see also Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1146
(8th Cir. 1999) ("It seems to us that almost every settlement will involve different
awards for various class members."). As the Third Circuit has noted, "some courts
allow a settlement to require a payment only to a third party, that is, to provide no
recovery at all directly to class members." In re Baby Prods. Antitrust Litig., 708
F.3d 163, 172 (3d Cir. 2013) (quoting American Law Institute ("ALI"), Principles of
the Law of Aggregate Litig. § 3.07, comment a (2010)).
In this case, we do not need to decide if, or under what circumstances, parties
to a class-action settlement may agree to provide a payment to a third party without
a direct benefit to class members. Here, the financial payment to the third-party
organization is not the only, or perhaps even the primary, benefit of the settlement
agreement. All class members receive a direct benefit from the settlement: the
opportunity to license their publicity rights through the established Licensing Agency,
as well as the payments by the NFL to the Licensing Agency. If the players' publicity
rights are as valuable as Appellants claim, the players should be able to realize the
value of their publicity rights through the Licensing Agency. While the parties
disagree on the value of the Licensing Agency to the different class members, the
district court held that through the Licensing Agency class members "finally ha[d] an
avenue to pursue commercial interests in their own images . . . [and] for the first time
in conjunction with the NFL's copyrights and trademarks." Dryer, 2013 WL
5888231, at *1. Thus, even in the absence of any financial payout, the settlement
would not fail as a matter of law. See, e.g., In re Mexico Money Transfer Litig., 267
F.3d 743, 748 (7th Cir. 2001) (noting that the settlement was "one of many class
actions in which everyone other than the plaintiffs has been paid in cash," that this
was "enough to raise suspicions" that the settlement may not be fair, but that the court
must "ask whether the value of relief in the aggregate is a reasonable approximation
of the value of plaintiffs' claim"); In re Gen. Motors Corp. Pick-Up Truck Fuel Tank
-10-
Prods. Liab. Litig., 55 F.3d 768, 803 (3d Cir. 1995) (noting concern that settlement
may not be fair because it "involve[d] only non-cash relief"). This is not a case in
which the district court approved a settlement with no direct benefit to each class
member.
Furthermore, although the $42 million is not paid directly to class members,
the money is clearly designated for the benefit of the class. The Common Good
Entity is obligated to "administer the [money] consistent with the provisions of [the]
Settlement Agreement" for the benefit of class members. In this way, the Common
Good Entity's administration of the substantial financial payout is not unlike the
establishment of a trust for the benefit of the class, which courts have frequently
found permissible. See, e.g., Cobell v. Salazar, 679 F.3d 909, 914 (D.C. Cir. 2012);
In re Diet Drugs Prods. Liab. Litig., No. 14-2729, 2015 WL 758455, at *1 (3d Cir.
Feb. 24, 2015); Int'l Union, United Auto., Aerospace, and Agric. Implement Workers
of Am. v. Gen. Motors Corp., 497 F.3d 615, 624 (6th Cir. 2007); Fanning v. United
States, 346 F.3d 386, 390 (3d Cir. 2003); Nat'l Treasury Emps. Union v. United
States, 54 Fed. Cl. 791, 795 (Fed. Cl. 2002). Therefore, we do not believe the mere
fact that the financial payout for the benefit of the class is made through a third party
renders the settlement impermissible. The relevant question is for whom the money
will be used, not whose name appears on the check. Appellants cite to no authority
holding to the contrary. Rather, they rely on cases involving cy pres distributions in
which a district court orders the payment of any unclaimed class funds to a thirdparty.3 Here, we deal not with the court's authority to distribute unclaimed funds to
3
At the district court, the objecting class members argued the settlement
agreement constituted a cy pres distribution. On appeal, no one expressly argues the
settlement is actually a cy pres distribution, and one set of appellants specifically
states they "wholeheartedly agree" with the district court that the settlement is not a
cy pres distribution.
-11-
a third party unrelated to the class but the parties' ability to decide how to best
distribute funds recovered in a class action for the benefit of the class.
Courts have specifically found settlement agreements with a structure similar
to the one in this case as a permissible and favorable way to resolve complex
litigation disputes. For example, in Lane v. Facebook, the plaintiffs brought a class
action against Facebook and other corporate entities for Facebook's improper
publishing of private information regarding what its members did elsewhere on the
Internet. 696 F.3d 811, 816 (9th Cir. 2012), cert denied, 134 S. Ct. 8 (2013).
Specifically, numerous company websites reported certain activity by customers to
Facebook; Facebook then published the activity on the member's profile page and
broadcast it for others to see. Id. The parties settled the class-action lawsuit under
a settlement agreement that required Facebook to pay $9.5 million, from which the
22 named class members received a total of $39,000, the 3,663,632 unnamed class
members received no payments at all, and the majority of funds went to establishing
a new charitable foundation that would help fund other organizations dedicated to
educating the public about online privacy. Id. at 817.
"The cy pres doctrine originated as a rule of construction to save a testamentary
charitable gift that would otherwise fail, allowing 'the next best use of the funds to
satisfy the testator's intent as near as possible.'" In re Airline Ticket Comm'n
Antitrust Litig., 268 F.3d 619, 625 (8th Cir. 2001) (quoting Democratic Cent. Comm.
v. Washington Metro. Area Transit Comm'n, 84 F.3d 451, 455 n.1 (D.C. Cir. 1996)).
In class-action litigation, it is commonly used to refer to the distribution of any
unclaimed class funds. Cf. In re BankAmerica Corp. Sec. Litig., 775 F.3d 1060, 1063
(8th Cir. 2015) ("In recent years, federal district courts have disposed of unclaimed
class action settlement funds after distributions to the class by making 'cy pres
distributions.'"); Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468, 475 (5th Cir.
2011). The settlement agreement here did not provide for—nor did the district court
direct—that any unclaimed money be paid out to a non-class member. Therefore, we
do not believe the settlement agreement is a cy pres distribution merely because part
of the benefit through the settlement agreement is offered through a third-party
organization.
-12-
The structure of the settlement agreement in Lane was in many ways similar
to the settlement in this case: it provided no direct financial payout to all class
members, save the named plaintiffs, and it paid the class funds to a newly-created
non-profit organization. It also differed in at least two key respects. First, the nonprofit organization in Lane was not obligated to spend any of the funds it received for
the benefit of any class members, which the court found made it a cy pres
distribution. Conversely, the Common Good Entity is bound to disburse the financial
payout by the NFL for the benefit of the class under specifically identified purposes.
Second, the class members in Lane received no direct benefit whatsoever—financial
or otherwise. In contrast, even setting aside the benefit of the $42 million payout, all
class members here received the benefit of the Licensing Agency.
The settlement agreement in this case provided for a direct benefit to all class
members and a substantial financial payment by the NFL for the benefit of class
members. We do not believe it fails as a matter of law merely because it does not
provide a specific financial payout to each class member or because the financial
payment is made through a third-party organization.4 The settlement agreement
4
We also reject Appellants' argument that the district court's approval of the
settlement violates the Rules Enabling Act, codified in 28 U.S.C. § 2072.
Under the Rules Enabling Act, the Federal Rules of Civil Procedure "shall not
abridge, enlarge or modify any substantive right." 28 U.S.C. § 2072(b). Thus, a
district court, generally, may not award substantive relief in a class-action lawsuit
merely because it is brought in the context of a class action. However, Appellants
present no case holding that the Rules Enabling Act limits the type of relief parties
themselves may agree to, so long as the court remains convinced the settlement is
"fair, reasonable, and adequate." As noted above, a class-action settlement—like any
settlement—is a private contract of negotiated compromises. The agreement is not
a "substantive adjudication of the underlying causes of action," and therefore,
approval of the settlement agreement does not implicate the Rules Enabling Act. See
In re Baby Prods., 708 F.3d at 173 n.8 ("Because a district court's certification of a
settlement simply recognizes the parties' deliberate decision to bind themselves
-13-
passed the district court's scrutiny, and we find no evidence whatsoever that the court
failed to fulfil its duty to serve as a guardian for the rights of the absent class
members. Accordingly, we consider whether the district court abused its discretion
in finding the settlement agreement fair, reasonable, and adequate under the
traditional four-factor analysis.
A - The Defendant's Financial Condition
The district court found that the NFL is in good financial standing, which
would permit it to adequately pay for its settlement obligations or continue with a
spirited defense in the litigation. No party disagrees with this finding. As such, we
find this factor neutral.
B - The Complexity and Expense of Further Litigation
Class actions, in general, "place an enormous burden of costs and expense upon
[] parties." Schmidt v. Fuller Brush Co., 527 F.2d 532, 535 (8th Cir. 1975). Where,
as here, the class members' claims involve complex legal questions, conflicts of law
analyses, the application of numerous states' laws, and individualized damages for
each class member that are speculative and difficult to estimate, the enormity of the
burden is obvious.
according to mutually agreed-upon terms without engaging in any substantive
adjudication of the underlying causes of action, we do not believe the inclusion of a
cy pres provision in a settlement runs counter to the Rules Enabling Act." (internal
quotation marks and citation omitted)); Sullivan v. DB Invs., Inc., 667 F.3d 273, 312
(3d Cir. 2011) (en banc) ("[T]he proposed settlement could not violate the Rules
Enabling Act since a court's approval of a voluntary settlement, by nature a
compromise of rights, does not affect substantive state rights." (internal quotation
marks omitted)); cf. Klier, 658 F.3d at 482 (Jones, J. concurring) (suggesting that cy
pres distributions may violate the Rules Enabling Act when "judges award surplus
settlement funds to charities and civic organizations" (emphasis added)).
-14-
Before settling, the parties had already spent three years in litigation and had
not yet even achieved class certification. As discussed in more detail below, the
resolution of the publicity rights claims would have required tremendous efforts
regarding issues of statutes of limitation for the various class members' home states,
complex conflict of laws analyses involving multiple states, the application of
numerous states' common and statutory publicity rights laws, affirmative defenses
involving constitutional principles, and the review of each individual player's
contract.
Even when the applicable law for each of the nearly 25,000 class members was
determined, the effort would have only began, as the parties would have vociferously
disputed and fought over the amount of damages to which each class member was
entitled. Each class member's likeness was used in varying NFL Films' videos, in
varying frequency during those videos, and in varying focus. The discovery
associated with determining this would have been substantial to say the least.
Furthermore, each class member's notoriety and recognition also varies. Thus, once
the parties identified and isolated each class member's appearances in the videos, they
would have had to present evidence regarding what they believed such appearance
merited in value. Undoubtedly, each party would have obtained competent and
qualified (and expensive) experts to provide an evaluation on what each player's
appearance during the varying NFL Films' videos was worth, but given the
speculative endeavor of such a task, the effort to reach an amount of damages for
each class member—to be persuasive—would have been substantial. Multiplying
that for the nearly 25,000 class members upgrades it to Herculean.5
5
Appellants argue that, under restitutionary principles, damages can simply be
calculated by determining the amount of gain the NFL received by using the former
players' likenesses. Even assuming that separating the value of the players' likenesses
from the creative presentation and other unique elements of the NFL Films' videos
would be a more simplistic task, regardless of how the damages for all former players'
claims are calculated in the collective, to allocate the proceeds each individual player
-15-
Finally, as the district court recognized, the fact that the NFL specifically
retained $13.5 million as a reserve for any litigation resulting from opt-outs is
strongly indicative that the real sum for the class-action litigation, particularly for the
plaintiffs who carried the burden of proving their damages, would have been much
higher.
Therefore, the district court correctly reasoned that this factor heavily favors
approval of the settlement agreement.
C - Amount of Opposition to the Settlement
The weight of this factor depends upon the viewpoint of the opposition. When
the opposition is considered from the view of the named plaintiffs, the amount is
considerable: six of the twenty-three class representatives objected to the settlement.
When considered from the viewpoint of the entire class, it is not substantial—less
than ten percent of the class opted out of the settlement. We have previously
approved class-action settlements even when almost half the class objected to it. See,
e.g., VanHorn, 840 F.2d at 606 (180 of 400 inmates objecting). We have approved
a class-action settlement even when all named plaintiffs opposed it. See Elliott v.
Sperry Rand Corp., 680 F.2d 1225, 1226-27 (8th Cir. 1982) (finding no abuse of
discretion even though both named plaintiffs objected to it and 790 of approximately
3,000 members objected). While Appellants fault the district court for failing to agree
with them, it is clear the district court listened to all of their objections, carefully
considered them, and explained its rationale for rejecting them.
The fact that a considerable number of the named plaintiffs objected to the
settlement suggests it may not have been particularly favorable to what they believed
is entitled, the court would still need to determine each player's entitlement based on
the use and value of his likeness individually.
-16-
their particular claims were worth. The fact that less than ten percent of the entire
class opted out of the settlement—despite conscious efforts by some class members
to persuade the other class members of unfairness—suggests it was favorable to what
most members believed their claims were worth. The named plaintiffs were likely
some of the individuals who by settling were giving up the greatest potential direct
financial payout. But they were not required to forgo what they believed to be
meritorious claims—they could have opted out of the settlement to pursue their own
claims, as some class members did.
The district court was keenly aware of its role to serve as the guardian of the
absent class members, which was "especially important [in this case], given the
rhetoric and conflict among the members of the Settlement Class, who in the usual
case would be zealously protecting those rights." Dryer, 2013 WL 5888231, at *2.
It is obvious that in approving the settlement, the district court overwhelmingly
believed the settlement was fair, reasonable, and adequate for the majority of the
class, which happened to be the quiet, absent majority:
[T]he objectors want a financial payout more than they want to embrace
the reality of the limitations of their claims. Fortunately for the absent
class members, experienced counsel and a knowledgeable and extremely
capable Magistrate Judge saw the case for what it was, and negotiated
a settlement that is truly one-of-a-kind, and a remarkable victory for the
class as a whole.
Id. The district court refused to give credence to the vocal minority that focused on
receiving a direct financial payout, which the district court believed was a "very
mistaken belief that they could reap significant financial benefits from continuing this
case." Id. Indeed, the court aptly noted that "only one-tenth of one percent of the
class objected, and less than ten percent of the class ha[d] requested exclusion from
the settlement." Id. This was in accord with the district court's "duty to the silent
majority as well as the vocal minority." In re Wireless, 396 F.3d at 933.
-17-
Under the specific circumstances of the class claims and disparity in the
potential payout for individual damages at issue in this case, and the posture in which
they were litigated, we believe the amount of opposition from the substantial absent
majority is better indicative of the opposition to the settlement as a whole.
Accordingly, we find this factor, too, favors approval of the settlement agreement.
D - The Merits of the Plaintiffs' Case Weighed Against the Terms of the
Settlement
The most important consideration in the analysis requires balancing the
strength of the plaintiffs' case against the value of the settlement terms to the class.
The district court held "there is no question that the factor weighs heavily in favor of
the settlement." Dryer, 2013 WL 5888231, at *4.
1 - The Merits of the Plaintiffs' Case
The district court held "the chances that this lawsuit—or indeed any
class-action lawsuit seeking to recoup sums for the alleged infringement of former
NFL players' publicity rights by NFL Films—will succeed are slim at best" because
"[t]oo many obstacles stand in the way of that success." Id. at *2. Those obstacles
come in the form of four barriers: (1) statute of limitations; (2) issues related to class
certification; (3) plausible affirmative defenses; and (4) lack of substantial damages
for most of the class.
First, because of the six-year statute of limitations "no Plaintiff [was] entitled
to compensation for any unauthorized use of his image before 2003." Id. at *4. Thus,
"the statute of limitations would bar the claims of many members." Id. No one
disputes this limitation.
-18-
Second, the district court convincingly explained its many concerns with
potential class certification. For instance, the district court rejected the notion that
New Jersey law would apply for all plaintiffs' publicity rights claims and believed it
would need to apply Minnesota conflict of laws to determine if there is a conflict
among the states' laws, which may include the laws of the states in which the
plaintiffs reside, in which the plaintiffs played football, under which the contracts are
governed, and the home states of the NFL and NFL Films. Some of these states
provide for publicity rights by statute, some by common law, while some do not
recognize any such rights. In the states that recognize such a cause of action, some
states treat it as a tort, while others treat it as a property right. Because the district
court would be required to apply individualized choice-of-law analysis for each
plaintiff's claim in the class action, see Phillips Petroleum Co. v. Shutts, 472 U.S.
797, 822-23 (1985), the district court found that with a class of nearly 25,000
individuals, "the choice-of-law inquiry [would be] extremely complex and weighs
heavily against ultimate certification of the class." Dryer, 2013 WL 5888231, at *5.
In addition, the question of damages for each player is highly individual. How often
they appeared, in what capacity, and, most importantly, what the value is of their
appearance will be very dependant on each individual class member.
Third, the NFL advanced plausible affirmative defenses that may have entirely
precluded any recovery. For example, the NFL reiterates on appeal, with supporting
evidence, that former NFL players understood and consented to the NFL's use of their
likenesses for many years and even provided voluntary interviews to be used in the
NFL Films' videos. The NFL also argued the NFL Films' videos are "entertainment
programming, not commercial speech," and are thus subject to First Amendment
protection. In a litigation in California state court involving similar issues, the court
denied class certification and eventually found that the use of baseball players'
publicity rights was protected by the First Amendment. See Gionfriddo v. Major
League Baseball, 114 Cal. Rptr. 2d 307, 318 (Cal. Ct. App. 2001) ("Balancing
plaintiffs' negligible economic interests against the public's enduring fascination with
-19-
baseball's past, we conclude that the public interest favoring the free dissemination
of information regarding baseball's history far outweighs any proprietary interests at
stake."). In finding that the First Amendment barred baseball players' right of
publicity claims for the use of their names, likenesses, and statistics in fantasy
baseball games, this Court found the reasoning in Gionfriddo persuasive. See C.B.C.
Distrib. and Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d
818, 823 (8th Cir. 2007) ("The Supreme Court has directed that state law rights of
publicity must be balanced against first amendment considerations, see Zacchini v.
Scripps-Howard Broad., 433 U.S. 562 (1977), and here we conclude that the former
must give way to the latter."). As discussed below, the district court, in dismissing
the claims of the members who opted out of the class, found these and other defenses
meritorious.
Finally, even if the plaintiffs obtained class certification and overcame all of
the NFL's affirmative defenses, for most, the damage potential was not particularly
large. The district court recognized that for a few members of the class, the potential
could be "substantial." For many, however, the payout would be minimal. Indeed,
the court noted the lack of "likelihood of any individual incurring enough damages
on their claims to make pursuit of individual actions worthwhile." Dryer, 2013 WL
5888231, at *7 n.2. Moreover, any damage calculation for the value of publicity
rights for minor appearances during an NFL Films' video would be very speculative:
Plaintiffs played a team sport, where at any given time there are 22 men
on the field of play. Any image from a game would almost by necessity
include more than one individual and often includes many individuals.
The apportionment of publicity-rights damages among the individuals
featured—whether players, coaches, sideline workers, officials,
cheerleaders, or others—is a Herculean task.
Id. at 7. Therefore, if Appellants are wrong about their likelihood of success along
any step of the way, all plaintiffs will gain nothing and lose not only the benefit of
-20-
a large sum of money devoted to them but also the benefits offered by the Licensing
Agency. Appellants, who believe they are due a substantial payout, still argue they
would have been better off without settlement because they were likely to prevail at
trial and obtain substantial damages. We have repeatedly rejected arguments "that
compromise was unnecessary because [the party] would have prevailed at trial."
Prof'l Firefighters Ass'n of Omaha, Local 385 v. Zalewski, 678 F.3d 640, 649 (8th
Cir. 2012). Appellants Marcus D. Gastineau and Abdul Salaam argue they "have
compromised claims against the NFL that have substantially greater value than retired
players whose game footage has never been used by the NFL." But if Gastineau and
Salaam were so confident in the likelihood of a substantial payout for their claims,
they could have opted out of the settlement to pursue their own claims, as some class
members did.
In fact, the three appellants who opted out of the settlement and proceeded to
the merits of their claims had their claims entirely dismissed by the district court.6 In
the order granting summary judgment in favor of the NFL, the court found that the
NFL Films' videos were not commercial speech and that after "[a]n evaluation[, ] the
full record show[ed] that the balance between Plaintiffs' publicity rights and the
constitutional protection due the uses involved here tip[ped] decidedly in favor of the
NFL." Dryer v. Nat'l Football League, No. 09-2182 (PAM/FLN), 2014 WL 5106738,
at *10 (D. Minn. Oct. 10, 2014). Moreover, the court concluded that even if the
videos were commercial speech, the plaintiffs still failed to demonstrate "genuine
issues of fact in the record to establish their publicity-rights claims." Id. at *11.
Notably, the court also rejected the plaintiffs' argument that New Jersey law should
6
Other former NFL players who opted out of the settlement initiated actions in
different districts, which were then transferred to the District of Minnesota. See Culp
v. NFL Prods., LLC, No. 13-7815 (NLH/JS), 2014 WL 4828189, at *1 (D.N.J. Sept.
29, 2014); Thompson v. Nat'l Football League, No. 1:13-CV-00367, 2014 WL
1646929, at *1 (W.D. Pa. Apr. 24, 2014); Tatum v. Nat'l Football League, No. 2-13CV-01814, 2014 WL 1652794, at *1 (W.D. Pa. Apr. 24, 2014).
-21-
apply to their claims, instead considering California, Texas, Minnesota, and New
York law. Id. at *11-12. After applying the relevant state law, the court found that
every state's law regarding the newsworthiness defense barred every plaintiff's
publicity claims. Id. at *12-15. The court also concluded that every state's law
regarding consent barred the plaintiffs' publicity claims. Id. at *15-16. Similarly, the
court held that the "NFL's valid copyright in the game footage forecloses Plaintiffs'
publicity claims." Id. at *17.7 Finally, the court concluded that the plaintiffs' Lanham
Act claims failed because the NFL Films' videos were not commercial speech, and
even if they were, the use of plaintiffs' likenesses were in no way false or misleading.
Id. at *18. In summary, the district court rejected every single one of the plaintiffs'
claims under every state law and under every single theory and defense. While the
merits of the order granting summary judgment are not before us in this appeal,8 the
district court's order is nevertheless strong evidence that it meant what it said in its
order approving the settlement regarding the likelihood of success on the merits.
The district court carefully and thoughtfully considered the strength of the
plaintiffs' case and all of the potential risks they would face by continuing to litigate.
Since the district court would have been the one to decide the issues, though it did not
have the benefit of full briefing on all issues at the time and could have changed its
mind, it was in the best position to forecast the likely outcome on the issues that
would come before it. Its decision is entitled to deference.
7
We note that we recently affirmed the dismissal of a plaintiff's publicity rights
claims on the basis that they were preempted by the Copyright Act. See Ray v.
ESPN, Inc., No. 14-2117, 2015 WL 1810486, at *3 (8th Cir. Apr. 22, 2015) (holding
that "Ray's likenesses could not be detached from the copyrighted performances that
were contained in the films").
8
The merits of the order are presently before us in a separate appeal. See No.
14-3428. Nothing in our analysis here should be taken as an indication of how the
merits of the issues will ultimately be decided.
-22-
2 - Value of the Settlement Terms to the Class
Appellants first argue that the district court could not approve the settlement
without a specific value for the expected amount of recovery on the class members'
claims. Second, they argue the settlement offers insufficient value to the class. We
address each argument in turn.
With respect to the first argument, the Ninth Circuit rejected this exact
argument in Lane: "we reject Objectors' argument insofar as it stands for the
proposition that the district court was required to find a specific monetary value
corresponding to each of the plaintiff class's statutory claims and compare the value
of those claims to the proffered settlement award." Lane, 696 F.3d at 823. The court
reasoned that while the district court carries an obligation to evaluate the strength of
the plaintiffs' case relative to the risks of continued litigation, "it need not include in
its approval order a specific finding of fact as to the potential recovery for each of the
plaintiffs' causes of action." Id. Such a requirement would "often be impossible."
Id. Thus, the district court's obligation was to evaluate "the plaintiffs' case in its
entirety rather than on a claim-by-claim basis." Id.
Appellants argue, and some courts have called for, a more detailed evaluation
of the value of class claims. For example, one of the factors adopted in other circuits
in evaluating the fairness, reasonableness, and adequacy of a class settlement is "the
range of reasonableness of the settlement fund in light of the best possible recovery."
Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975) (quoting City of Detroit v. Grinnell
Corp., 495 F.2d 448, 463 (2d. Cir. 1974)). But this is not a required finding in this
Circuit. Similarly, the Seventh Circuit has criticized district courts' failure to
adequately valuate the potential of the plaintiffs' claims: "the judge should have made
a greater effort (he made none) to quantify the net expected value of continued
litigation to the class . . . . Determining that value would require estimating the range
of possible outcomes and ascribing a probability to each point on the range."
-23-
Reynolds v. Beneficial Nat'l Bank, 288 F.3d 277, 284-85 (7th Cir. 2002). However,
the Seventh Circuit also acknowledged that "[a] high degree of precision cannot be
expected in valuing a litigation, especially regarding the estimation of the probability
of particular outcomes." Id. at 285. The court suggested, as an example, that "the
judge could have insisted that the parties present evidence that would enable four
possible outcomes to be estimated: call them high, medium, low, and zero." Id. at
285. The judge could have then estimated an "approximate range of percentages,
reflecting the probability of obtaining each of these outcomes in a trial (more likely
a series of trials)" for each outcome to derive a "ballpark valuation." Id. The Ninth
Circuit has expressly criticized such a detailed approach as a requirement. See
Rodriguez v. West Publ'g Corp., 563 F.3d 948, 965 (9th Cir. 2009) (citing Seventh
Circuit law and rejecting the notion that "the court should have specifically weighed
the merits of the class's case against the settlement amount and quantified the
expected value of fully litigating the matter"). The Third Circuit has also
acknowledged that requiring a detailed and involved calculus for the expected
recovery is not always possible:
We note that in some cases, 'the traditional calculus suggested by the
Manual for Complex Litigation . . . and adopted by [us] cannot be
applied' [because] . . . calculating the value of the best possible recovery
would have been 'exceedingly speculative' and both the structure of the
settlement and the uncapped benefit [can make] it 'difficult to determine
accurately the actual value of the settlement.'
In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 355 n.30 (3d. Cir. 2010) (alterations
in original).
Although this Court has not specifically defined how much precision a district
court must use in evaluating the strength of the plaintiffs' case, we have previously
explained that "in approving a settlement[,] the district court need not undertake the
type of detailed investigation that trying the case would involve." Van Horn, 840
-24-
F.2d at 607. We see no need to adopt the Seventh Circuit's approach in this case. In
a case such as this one, where the damages are not easily calculable, are highly
speculative, and are heavily dependent on expert opinions, it would be difficult if not
impossible to derive the initial high, medium, low, and zero for potential value of the
claims in such an accurate way as to allow for a meaningful conclusion. In so doing,
we do not mean to discourage district courts from requiring parties to provide
valuations for the class claims; rather, we leave the required level of detail for such
a showing in each case to the sound discretion of the district court. To require the
district court to make detailed factual findings on the value of class claims in every
case, even if it would ultimately find any of its findings of little value to evaluating
the fairness, reasonableness, and adequacy of the settlement would run counter to this
Court's guiding principle that "[t]he very purpose of compromise is to avoid the delay
and expense of such a trial," Grunin, 513 F.2d at 124 (internal quotation marks
omitted) and that "[t]he parties to a class action are not required to incur immense
expense before settling as a means to justify that settlement." DeBoer v. Mellon
Mortg. Co., 64 F.3d 1171, 1178 (8th Cir. 1995).
Here, there was some evidence in the record on the value of the claims. As part
of the settlement process, the Magistrate Judge required the parties to provide a
"concise summary of [their] analysis of the damages issues" and other confidential
financial information. At oral argument, lead settlement counsel provided further
details regarding the evidence presented to the Magistrate Judge, which included colead plaintiffs' counsel's calculated estimate of a range of damages based on a nineyear period from financial records produced by the NFL thus far. Because the
Magistrate Judge was part of the district court, and was tasked with conducting the
settlement discussions between both parties in an effort to achieve a mutuallyagreeable resolution, the district court held that "[w]hen information is submitted to
[him], it is submitted to this Court." Dryer, 2013 WL 5888231, at *4. Additionally,
as part of their objections to the settlement, Appellants provided the declaration of
Carl G. Degan, an economic damages expert. Degan explained several complex
-25-
formulas and alternatives through which he believed it would be feasible to calculate
damages and also included a seven-page analysis on what he believed to be the value
of the claims relative to the settlement. The information was available to the district
court, and the district court was entitled to afford it whatever weight it found
appropriate. Interestingly, although Degan was asked to "evaluate the proposed
settlement value vis-à-vis potential damages," he failed to provide any opinion on the
specific value of the class claims—he merely opined the settlement was too small.
The absence of a specific value in his declaration is hardly surprising since to attempt
to reach such specific value of the class claims, the parties would have needed full
and complete discovery of the NFL's finances, a comprehensive review of the
substantial amount of evidence with regard to each of the nearly 25,000 members, and
expensive expert reports to support the conclusions reached. Requiring the parties
to undergo such an elaborate and expensive process to produce what likely would
have been two opposing speculative estimates far apart seems to be of little value in
this case—especially considering that the process may have unraveled the potential
for settlement. Taking into account that any derived expected value of the claims
must be weighed against the likelihood of success on the merits, which is even more
difficult to quantitatively measure in this case, reaffirms that a more specific valuation
of the claims in this particular case was not required. Therefore, the district court did
not err by not requiring additional expert evidence on the issue. We have more than
enough of a "basis for determining that [the district court's] decision rests on 'wellreasoned conclusions' and is not 'mere boilerplate.'" In re Wireless, 396 F.3d at 933.
We also reject the argument that the settlement offers insufficient value to the
class. As already noted, the settlement agreement provides for two clear and direct
benefits to the class: the Licensing Agency and the payment of up to $42 million for
the benefit of the class.
The Licensing Agency created by the settlement agreement is an agency which
allows for one-stop shopping for those seeking to obtain the publicity rights of former
-26-
NFL players. Its purpose is to assist former players in identifying and securing
business opportunities for licensing. The settling plaintiffs believe the Licensing
Agency "will significantly reduce transaction costs and unlock the value of the group
publicity rights of Class Members." Appellants argue the Licensing Agency does not
provide much benefit because former players can license their likenesses through the
NFL Alumni Association's group-licensing program. But regardless of whether some
benefits might be duplicative, the Licensing Agency offers unique benefits such as
the promised cooperation from the NFL in licensing its logos and trademarks. Thus,
the Licensing Agency is a significant and direct benefit to all class members.
Moreover, the precise value of the benefit from the Licensing Agency was for the
district court to consider in the first instance, and the district court found it valuable:
"former players will also finally have an avenue to pursue commercial interests in
their own images and in their images as part of their former teams, for the first time
in conjunction with the NFL's copyrights and trademarks . . . ." Dryer, 2013 WL
5888231, at *1. As the district court summarized, "should the Licensing Agency be
unable to market individual and group publicity rights because of lack of market
demand, then it is clear that the class did not truly suffer the damages alleged in this
case." Id. at *7.
In addition to the benefits of the Licensing Agency, the class members have
$42 million for their benefit. Although the money is not paid directly to any specific
player and does not guarantee any specific amount to any specific player, the clearly
stated purpose of the funds is to benefit the class. As the district court explained, the
payout is "a boon to those thousands upon thousands of former NFL players who can
now reap the collective benefit of a large financial payout to a fund organized solely
for their benefit, overseen by their comrades-in-arms." Id. at *1.
While Appellants may not believe they received adequate value for what they
believe their own individual claims were worth, in evaluating the strength of the
plaintiffs' case and the potential value, the district court must take into account the
-27-
interests of the entire class—not merely the named plaintiffs. Thus, it must balance
the claims of those with potentially substantial damages to those with potentially
minimal or insignificant damages. "It is an inherent feature of the class-action device
that individual class members will often claim differing amounts of damages." Lane,
696 F.3d at 824. This issue is apparent here, and the district court astutely took notice
of it by explaining that one of the named plaintiffs, who "was featured in at least one
NFL Films' production," stood to gain "relatively substantial" damages, assuming
they were not barred by the statute of limitations or the NFL's other affirmative
defenses. Dryer, 2013 WL 5888231, at *7. Conversely, "[a] member of the defensive
squad for the 1986 Super Bowl runner-up New England Patriots, . . . might appear
briefly in a documentary about the Super-Bowl-winning Chicago Bears, but that
image would be fleeting and entitled to little, if any, compensation." Id. Thus, in
reaching the settlement, some members would potentially be foregoing a larger
payment than others, were they to prevail on the claims. Were such members
required to entirely forgo their claims, the settlement may be unfair. But there is a
well-established remedy that any class member may elect to preserve what he believes
to be a claim worth more than what he may receive under the settlement—opt out.
As the Lane court explained, this is "why due process requires that individual
members of a class certified under Rule 23(b)(3) be given an opportunity to opt out
of the settlement class to pursue their claims separately." 696 F.3d at 824. This
important procedural right acknowledges the practical reality that "a class action
settlement necessarily reflects the parties' pre-trial assessment as to the potential
recovery of the entire class, with all of its class members' varying claims." Id.
Additionally, the NFL specifically reserved $13.5 million from the $42 million
payment for any expenses related to opt-out litigation, expecting some individuals to
opt out. The plaintiffs who opted out of the settlement could have brought their own
individual or collective action against the NFL and potentially obtained the direct
financial payout they allege is lacking in this settlement. In fact, three of the
individuals who opted out had their claims dismissed with no recovery at all.
-28-
Appellants also argue the initial denial of preliminary approval for the NFL's
concussion litigation settlement demonstrates the unreasonableness of the settlement
in this case. See In re Nat'l Football League Players' Concussion Injury Litig., 961
F. Supp. 2d 708 (E.D. Pa. 2014). The concussion litigation involves different claims,
subject to different risks, defenses, and likelihood of success, different class
members, and different potential damages. The mere fact that the litigation involves
similar parties in no way serves as a useful comparison in evaluating the
reasonableness of the settlement for the claims at issue in this case.
In the district court's evaluation, this action involved dubious claims with
highly speculative damages that were unlikely to be addressed in the context of
class-action litigation. For the majority of the class, the current settlement provides
a substantial benefit through the Licensing Agency and a payout of up to $42 million
through the Common Good Entity. The district court believed the negotiated
settlement is "a remarkable victory for the class as a whole." Dryer, 2013 WL
5888231, at *2. Under our deferential review, we cannot say the district court made
a clear error of judgment in weighing the relevant factors. Accordingly, we do not
believe the district court abused its discretion in approving the settlement. See In re
Wireless, 396 F.3d at 933 ("Weighing the uncertainty of relief against the immediate
benefit provided in the settlement, we conclude that the district court acted within its
discretion when considering the strength of the claims and the amount of the
settlement.").
III
We find that the district court properly considered the relevant factors and did
not abuse its discretion in finding that the negotiated settlement agreement in this case
was fair, reasonable, and adequate to the class. Therefore, we affirm.
-29-
SMITH, Circuit Judge, concurring.
I concur in the court's opinion. I write separately to emphasize that this class
action settlement is not a cy pres distribution like the distribution in In re
BankAmerica Corp. Securities Litigation.
"The term 'cy pres' is derived from the Norman French expression cy pres
comme possible, which means 'as near as possible.'" In re Baby Prods., 708 F.3d at
168 (footnote omitted) (quoting Democratic Cent. Comm. v. Washington Metro. Area
Transit Comm'n, 84 F.3d 451, 455 n.1 (D.C. Cir. 1996)). The Third Circuit has
described the traditional cy pres distribution in the class-action context as follows:
When class actions are resolved through settlement, it may be difficult
to distribute the entire settlement fund, after paying attorneys' fees and
costs along with fund administration expenses, directly to its intended
beneficiaries—the class members. Money may remain unclaimed if class
members cannot be located, decline to file claims, have died, or the
parties have overestimated the amount projected for distribution for
some other reason. It may also be economically or administratively
infeasible to distribute funds to class members if, for example, the cost
of distributing individually to all class members exceeds the amount to
be distributed. In these circumstances, courts have permitted the parties
to distribute to a nonparty (or nonparties) the excess settlement funds for
their next best use—a charitable purpose reasonably approximating the
interests pursued by the class.
Id. at 168–69.
"We have approved cy pres distribution of unused or unclaimed class action
settlement funds" in accordance with the criteria set forth "in § 3.07 of [the American
Law Institute's (ALI)] published Principles of the Law of Aggregate Litigation
-30-
(2010)." In re BankAmerica Corp. Sec. Litig., 775 F.3d at 1063–64. Section 3.07
provides:
"A court may approve a settlement that proposes a cy pres remedy . . . .
The court must apply the following criteria in determining whether a cy
pres award is appropriate:
(a) If individual class members can be identified through reasonable
effort, and the distributions are sufficiently large to make individual
distributions economically viable, settlement proceeds should be
distributed directly to individual class members.
(b) If the settlement involves individual distributions to class members
and funds remain after distributions (because some class members could
not be identified or chose not to participate), the settlement should
presumptively provide for further distributions to participating class
members unless the amounts involved are too small to make individual
distributions economically viable or other specific reasons exist that
would make such further distributions impossible or unfair.
(c) If the court finds that individual distributions are not viable based
upon the criteria set forth in subsections (a) and (b), the settlement may
utilize a cy pres approach. The court, when feasible, should require the
parties to identify a recipient whose interests reasonably approximate
those being pursued by the class. If, and only if, no recipient whose
interest reasonably approximate those being pursued by the class can be
identified after thorough investigation and analysis, a court may approve
a recipient that does not reasonably approximate the interests being
pursued by the class."
Id. (alteration in original) (quoting ALI, Principles of the Law of Aggregate Litigation
§ 3.07 (2010)).
We recently "clarifi[ed] the legal principles" that govern cy pres distributions.
Id. at 1064.
-31-
First, we agree[d] with the Fifth Circuit that, "Because the settlement
funds are the property of the class, a cy pres distribution to a third party
of unclaimed settlement funds is permissible 'only when it is not feasible
to make further distributions to class members' . . . . except where an
additional distribution would provide a windfall to class members with
liquidated-damages claims that were 100 percent satisfied by the initial
distribution."
Id. (second alteration in original) (quoting Klier, 658 F.3d at 475 (quoting ALI
§ 3.07)).
"Second, a cy pres distribution is not authorized by declaring . . . that 'all class
members submitting claims have been satisfied in full.'" Id. at 1065 (citation omitted).
Third, "'[a] proposed cy pres distribution must meet [our standards governing cy pres
awards] regardless of whether the award was fashioned by the settling parties or the
trial court.'" Id. at 1066 (alterations in original) (quoting Nachshin v. AOL, LLC, 663
F.3d 1034, 1040 (9th Cir. 2011)). Fourth, "unless the amount of funds to be
distributed cy pres is de minimis, the district court should make a cy pres proposal
publicly available and allow class members to object or suggest alternative recipients
before the court selects a cy pres recipient." Id. "Fifth, when a district court concludes
that a cy pres distribution is appropriate after applying the foregoing rigorous
standards, such a distribution must be 'for the next best use . . . for indirect class
benefit,' and 'for uses consistent with the nature of the underlying action and with the
judicial function.'" Id. at 1067 (alteration in original) (quoting In re Katrina Canal
Breaches Litig., 628 F.3d 185, 196 (5th Cir. 2010)).
We applied these legal principles in In re BankAmerica Corp. Securities
Litigation in reviewing a class action settlement that was indisputably a cy pres
distribution. See id. at 1062. In that case, the district court ordered, over the class
representative's objections, "that the balance of the NationsBank Classes settlement
fund shall be distributed cy pres to the Legal Services of Eastern Missouri, Inc." Id.
-32-
(quotation and citation omitted). We reversed, agreeing with the class representative
that, applying the legal principles set forth supra, "the district court abused its
discretion in ordering a cy pres distribution because a further distribution to the
classes is feasible, and in any event [the selected charity] [was] unrelated to the
classes or the litigation and [was] therefore an inappropriate 'next best' cy pres
recipient." Id. at 1062 (footnote omitted).
Our threshold question is whether the proposed settlement is a cy pres
distribution at all. I conclude that it is not. In cy pres distributions, settlement funds
are distributed to nonparties. Here, the Common Good Fund must be used to provide
benefits to class members, rather than being given to nonparties unrelated to the
litigation. And, the Common Good Fund and Common Good Entity are governed by
a Board of Directors that includes class members. Furthermore, this case does not
concern "unused or unclaimed class action settlement funds." Id. at 1064. In fact,
unused funds will never exist here because if the Common Good Entity does not
timely distribute the settlement funds, the NFL must do it. Finally, this case is
distinguishable from In re BankAmerica Corp. Securities Litigation because, in that
case, we had to determine how to handle leftover funds in a cash settlement; here, the
question is whether a settlement must provide direct cash payments at all.
Accordingly, In re BankAmerica Corp. Securities Litigation does not control the
disposition of the current appeal.
______________________________
-33-