Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Cal.: NCAA, Electronic Arts to pay $19M in attorney fees, costs, (Dec 11, 2015)

By Greg Hammond, J.D.

The National Collegiate Athletic Association (NCAA) and Electronic Arts Inc. (EA) have been ordered to pay $19 million in attorney fees and costs in three related cases filed by student-athletes who alleged antitrust violations and right of publicity claims arising from the commercial use of their names, images, and likenesses in television broadcasts and NCAA brand video games. The federal district court in Oakland, California, allocated the $19 million based on the contributions made by counsel in three cases, including: Keller v. NCAA; O’Bannon v. NCAA; and Hart v. EA (Keller v. National Collegiate Athletic Association, December 10, 2015, Wilken, C.).

The plaintiff student-athletes, who played on men’s football or basketball teams at Division I member schools and conferences, filed suit against the NCAA, alleging that the NCAA violated federal antitrust law by conspiring with licensing companies, Electronic Arts Inc. and Collegiate Licensing Co., to restrain competition in two related national markets—the college education market and the group licensing market—for the commercial use of their names, images, and likenesses in television broadcasts and NCAA brand video games. In particular, the plaintiffs challenged NCAA rules that bar student-athletes from receiving a share of the revenue the NCAA and member schools earn from the sale of those licenses.

The district court previously granted final approval of the class action settlements and allocated 29 percent of the NCAA settlement fund, or $5.8 million, and 30 percent of the Electronic Arts, Inc. (EA) settlement fund, or $13.2 million, for attorney fees. Counsel for the O’Bannon plaintiffs sought $8 million in fees from EA; counsel for the Keller plaintiffs sought $8.58 million in fees from EA and $5.8 million in fees from the NCAA; current counsel for the plaintiff in Hart v. EA, D.N.J., Case No. 09-5990, sought $883,177 in fees from EA; and former counsel for the Hart plaintiffs sought $4.62 million in fees from EA.

The court first granted the Keller plaintiff counsels’ motion for $5.8 million in fees from the NCAA, as they were the only law firm seeking fees under that settlement.

Right of publicity fees. The court next determined how to allocate fees between O’Bannon plaintiffs’ counsel and counsel for the Keller plaintiffs alleging right of publicity claims. To account for uncertainty concerning the fees to be awarded from the NCAA, the court concluded that $4 million in fees should be set aside for O’Bannon plaintiffs’ counsel and that $2 million be placed in escrow. If the NCAA pays the fee award related to the O’Bannon trial, the $2 million will be paid to Keller plaintiffs’ counsel. Otherwise, the $2 million will be paid to the O’Bannon plaintiffs’ counsel.

The court reached this decision because: (1) the work O’Bannon plaintiffs’ counsel contributed to advance the O’Bannon case while the Keller and Hart cases were stayed must be recognized; (2) it was undisputed that the O’Bannon plaintiffs’ counsel spent many more hours prosecuting O’Bannon through the date of settlement than the Keller plaintiffs’ counsel spent in the other cases; (3) the Keller plaintiffs’ counsel claimed they were exposed to additional risk due to the mandatory fee-shifting under California’s right of publicity and anti-SLAPP statutes; but (4) the O’Bannon plaintiffs’ counsel could recover from the NCAA most of the fees they sought.

Of the remaining $6 million in fees from the EA fund, $5.721 million was awarded to Keller plaintiffs’ counsel, because the right of publicity claims raised in Keller exposed EA to the greatest liability in this litigation and the substance and timing of the Ninth Circuit’s earlier decision as it affected the settlement weighed in favor of finding the Keller plaintiffs’ claims produced the greatest benefit to the settling class.

Next, the court reduced the lodestar claimed by the Hart plaintiffs’ counsel by 60 percent because its records were replete with excessive and vague entries that were made even more difficult by the use of block billing. The Hart plaintiffs’ current counsel was consequently granted only $260,000 in fees. Similarly, the court reduced former counsel for the Hart plaintiffs’ adjusted lodestar by 70 percent, granting $696,700 in fees. The court reasoned that the former counsel’s time records were replete with entries that are not reasonably related to the litigation or settlement of the case and because the court questioned the reliability of the records.

Costs. Lastly, the court granted Keller plaintiffs’ counsel $224,434.20 in costs from the NCAA fund and $224,434.20 in costs from the EA fund; O’Bannon plaintiffs’ counsel over $1.8 million in costs from the EA fund; Hart plaintiffs’ current counsel over $12,000 in costs from the EA fund; and former counsel for Hart plaintiffs nearly $23,000 in costs from the EA fund.

The case is No. 4:09-cv-01967-CW.

Attorneys: Shana E. Scarlett (Hagens Berman Sobol Shapiro LLP) for Samuel Michael Keller. Robert James Slaughter (Keker & Van Nest LLP) for Electronic Arts Inc. Glenn Douglas Pomerantz (Munger Tolles & Olson) for National Collegiate Athletic Association. Amber Melia Trincado (King & Spalding LLP) for Collegiate Licensing Co.

Companies: National Collegiate Athletic Association; Electronic Arts Inc.; Collegiate Licensing Co.

Cases: Antitrust CaliforniaNews