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SDNY) (Trial Pleading ANDERSON PAUL 12/23/2011 For Educational Use Only Harry JACOBS and his wife, Kay Jacobs; Jerome Barkum;..., 2011 WL 6371825... 2011 WL 6371825 (S.D.N.Y.) (Trial Pleading) United States District Court, S.D. New York. Harry JACOBS and his wife, Kay Jacobs; Jerome Barkum; and Tommy Mason and his wife, Karen Mason; individually and on behalf of all others similarly situated, Plaintiffs, v. NATIONAL FOOTBALL LEAGUE and NFL Properties LLC, Defendants. No. 11 CIV 9345. December 20, 2011. Plaintiffs' Class Action and Individual Complaint for Damages, and Demand for Jury Trial 1. Declaratory Relief (on behalf of the Class) 2, Medical Monitoring (on behalf of the Class) 3. Negligence (on behalf of the Class and the Individual named Plaintiffs) 4. Fraud (on behalf of the Class and the Individual Named Plaintiffs) 5. Negligent Misrepresentation (on behalf of the Individual Named Plaintiffs) 6. Conspiracy (on behalf of the Individual Named Plaintiffs) Kellie Lerner (KL-0927) Hollis Salzman (HS-5994), Labaton Sucharow LLP, 140 Broadway, New York, NY 10005, Telephone: (212) 907-0700, Facsimile: (212) 818-0477. Michael D. Hausfeld, Richard S. Lewis, James J. Pizzurusso, Swathi Bojedla, Hausfeld LLP, 1700 K Street, N.W.; Ste. 650, Washington, DC 20006, Telephone: (202) 540-7200, Facsimile: (202) 540-7201. Michael P. Lehmann, Hausfeld LLP, 44 Montgomery Street, Suite 3400, San Francisco, CA 94104, Telephone: (415) 633-1908, Facsimile: (415) 358-4980. Thomas V. Girardi, Girardi | Keese, 1126 Wilshire Boulevard, Los Angeles CA 90017, Telephone: (213) 977-0211, Facsimile: (213) 481-1554. Sylvia Sokol, Moscone Emblidge & Sater LLP, 220 Montgomery Street, Suite 2100, San Francisco, CA 94104, Telephone: 415-362-3599, Facsimile: 415-362-2006. Daniel L. Warshaw, Clifford H. Pearson, Pearson, Simon, Warshaw & Penny, LLP, 15165 Ventura Boulevard, Suite 400, Sherman Oaks, CA 91403, Telephone: (818) 788 8300, Facsimile: (818) 788 8104. Arthur Bailey, Sr., Arthur N. Bailey Associates, Suite 4500, 111 West Second St., Jamestown, NY 14701], Telephone: (716) 483-3732, Facsimile: (716) 664-2983, Counsel for Plaintiffs and the Proposed Class. INTRODUCTION ............................................................................................................................................ 1 JURISDICTION AND VENUE ....................................................................................................................... 1 THE PARTIES ................................................................................................................................................. 1 CLASS ACTION .............................................................................................................................................. 6 NATURE OF N FL's BUSINESS ................................................................................................................... 7 FACTUAL ALLEGATIONS ........................................................................................................................... 10 The Scientific Evidence On Concussions And Head Injuries And The NFL's Responses To It .................... 10 Riddell's Involvement in the NFL's Unlawful Conduct .................................................................................. 49 COUNT I .......................................................................................................................................................... 50 COUNT II ......................................................................................................................................................... 51 COUNT III ....................................................................................................................................................... 52 COUNT IV ....................................................................................................................................................... 55 COUNT V ........................................................................................................................................................ 57 COUNT VI ....................................................................................................................................................... 58 © 2011 Thomson Reuters. No claim to original U.S. Government Works. 1 ANDERSON PAUL 12/23/2011 For Educational Use Only Harry JACOBS and his wife, Kay Jacobs; Jerome Barkum;..., 2011 WL 6371825... PRAYER FOR RELIEF ................................................................................................................................... 58 INTRODUCTION 1. This action is brought by former National Football League (“NFL” or “League”) players who seek declaratory and medical monitoring relief based on claims of negligence and fraud with respect to brain injuries caused by repeated traumatic brain and head impacts received during the period when they were active in professional football. These claims for relief are brought on a classwide basis on behalf of all former NFL players. The individually named Plaintiffs also seek personal injury damages for their brain injuries. The allegations herein, except as to the Plaintiffs, are based on information and belief. JURISDICTION AND VENUE 2. Jurisdiction is based on 28 USC §1332. 3. Venue in this action is proper in this Court pursuant to 28 USC §1391. 4. The amount in controversy exceeds $75,000 for the individual claims and $5,000,000 for the class claims THE PARTIES 5. Plaintiff Harry Jacobs (“Jacobs”) resides in Hamburg, New York. Jacobs, who is now 74 years old, played in the AFL and NFL on three teams (Boston Patriots, Buffalo Bills, and New Orleans Saints) from 1960-1970. Mr. Jacobs has suffered neurodegenerative brain disease including headaches, dizziness, loss of memory, dementia, impulse control problems, depression, fatigue, sleep problems, irritability, neck/cervical spine arthritis and numbness/tingling in the neck and cervical spine caused by repeated and chronic head impacts that he experienced during his career in the NFL. Furthermore, he is at increased risk of further latent brain disease, and is in need of diagnostic examinations and medical monitoring. He is now and has been for several years outside the collective bargaining unit (“CBU”) represented in successive collective bargaining agreements (“CBAs”) between the NFL and the union for League players, the National Football League Players Association (“NFLPA”). Mr. Jacobs's wife, Kay Jacobs, also brings a claim for loss of consortium. 6. Plaintiff Jerome Barkum (“Barkum”) resides in Dallas, Texas. Barkum, who is now 61 years old, played in the NFL his entire career with the New York Jets from 1970-1981. Mr. Barkum has suffered neurodegenerative brain disease including headaches, dizziness, loss of memory, caused by repeated and chronic head impacts that he experienced during his career in the NFL. Furthermore, he is at increased risk of further latent brain disease, and is in need of diagnostic examinations and medical monitoring. He is now and has been for several years outside the collective bargaining unit (“CBU”) represented in successive collective bargaining agreements (“CBAs”) between the NFL and the union for League players, the National Football League Players Association (“NFLPA”). 7. Plaintiff Tommy Mason (“Mason”) resides in Orange County, California. Mason, now 72 years old, played in the NFL on three teams (Minnesota Vikings, L.A. Rams, and Washington Redskins) from 1961-1972. Mr. Mason has suffered neurodegenerative brain disease, including loss of memory and symptoms of dementia, caused by repeated and chronic head impacts that he experienced during his career in the NFL. Furthermore, he is at increased risk of further latent brain disease, and is in need of diagnostic examinations and medical monitoring. He is now and has been for several years outside the collective bargaining unit (“CBU”) represented in successive collective bargaining agreements (“CBAs”) between the NFL and the union for League players, the National Football League Players Association (“NFLPA”). Mr. Mason's wife, Karen Mason, also brings a claim for loss of consortium. 8. Defendant National Football League, which maintains its offices at 280 Park Avenue, New York, New York, is an unincorporated association consisting of the 32 separately-owned and independently-operated professional football teams that © 2011 Thomson Reuters. No claim to original U.S. Government Works. 2 ANDERSON PAUL 12/23/2011 For Educational Use Only Harry JACOBS and his wife, Kay Jacobs; Jerome Barkum;..., 2011 WL 6371825... are listed below. The National Football League is engaged in interstate commerce in the business of, among other things, operating the sole major professional football league in the United States. The National Football League is not, and has not, been the employer of the Plaintiffs, who were employed during their respective careers in professional football by the independent clubs indicated above. The United States Supreme Court held last year in American Needle, Inc. v. NFL, 130 S. Ct. 220 1, 22 12-13 (20 10) that each team that is a member of the National Football League is a legally distinct and separate entity from both other teams and the League itself: The NFL teams do not possess either the unitary decision making quality or the single aggregation of economic power characteristic of independent action. Each of the teams is a substantial, independently owned, and independently managed business. “[T]heir
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