Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Supreme Court declines to review retired NFL players’ settlement approval, certification of supplement purchasers, (Feb 29, 2016)

By Jody Coultas, J.D.

The U.S. Supreme Court denied two petitions for review today concerning class actions in advertising law cases. The petitions are Direct Digital, LLC v. Mullins (Dkt. 15-549) and Marshall v. National Football League (Dkt. 15-645).

Class certification. The High Court denied a petition for review filed by dietary supplement manufacturer Instaflex, asking the Court to overturn a decision by the U.S. Court of Appeals in Chicago to certify a class of supplement purchasers. The purchasers alleged that Instaflex fraudulently represented that its dietary supplement relieves joint discomfort, arguing that the primary ingredient, glucosamine sulfate, was nothing more than a sugar pill and there was no scientific support for such claims. Instaflex asked whether a court could certify a class under Federal Rule of Civil Procedure 23(b)(3) where the plaintiff failed to make any showing of a reliable and administratively feasible means for ascertaining class membership (Direct Digital, LLC v. Mullins, Dkt. 15-549).

Settlement approval. Three retired professional football players were denied review of a decision by the U.S, Court of Appeals in St. Louis to affirm approval of a class settlement of claims against the National Football League (NFL). The players had alleged that the NFL had earned substantial revenue by making promotional films and selling products featuring the names, images, and likenesses of retired players without the players’ authorization. The parties reached a settlement, providing: (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 of the class.

The former players asked: (1) whether a Rule 23(b)(3) class settlement that provides no guaranteed benefit to readily identifiable class members in exchange for the release of their damages claims satisfies the requirement of Rule 23(e)(2) that a settlement binding class members must be “fair, reasonable, and adequate”; and (2) whether Rule 23(e)(2) and principles of aggregate litigation require the district court, as a fiduciary, to evaluate the potential value of the damages claims released by class members (Marshall v. National Football League, Dkt. 15-645).

Companies: Direct Digital, LLC; National Football League

News: Advertising ConsumerProtection