Case4:09-cv-01967-CW Document1108-2 Filed05/30/14 Page1 of 286 EXHIBIT 1 Case4:09-cv-01967-CW Document1108-2 Filed05/30/14 Page2 of 286 Steve W. Berman (Pro Hac Vice) 1 Robert B. Carey (Pro Hac Vice) Leonard W. Aragon (Pro Hac Vice) 2 HAGENS BERMAN SOBOL SHAPIRO LLP 11 West Jefferson, Suite 1000 3 Phoenix, Arizona 85003 Telephone: (602) 840-5900 4 Facsimile: (602) 840-3012 Email: [email protected] 5 [email protected] 6 Michael P. Lehmann (Cal. Bar No. 77152) Arthur N. Bailey, Jr. (Cal. Bar No. 248460) 7 HAUSFELD LLP 44 Montgomery St., 34th Floor 8 San Francisco, CA 94104 Tel: (415) 633-1908 9 Fax: (415) 358-4980 E-mail:[email protected] 10 [email protected] 11 Interim Co-Lead Counsel for Antitrust and Right of Publicity Plaintiffs 12 13 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 OAKLAND DIVISION 17 In re NCAA Student-Athlete Name & Likeness Case No. 4:09-cv-1967 CW (NC) 18 Licensing Litigation 19 CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE 20 21 Complaint Filed: May 5, 2009 22 23 24 25 26 27 28 Case4:09-cv-01967-CW Document1108-2 Filed05/30/14 Page3 of 286 1 I. PARTIES TO THE SETTLEMENT AGREEMENT 2 This Class Action Settlement Agreement and Release (“Settlement Agreement” or 3 “Agreement”) is entered into by, between, and among the following Plaintiffs and Settling 4 Defendant: 5 PLAINTIFFS 6 (i). Keller Right of Publicity Plaintiffs: Samuel Michael Keller, Bryan Cummings, 7 Lamarr Watkins, and Byron Bishop (collectively Keller Plaintiffs) 8 (ii). Antitrust Plaintiffs: Edward C. O’Bannon Jr., Oscar Robertson, William Russell, 9 Harry Flournoy, Alex Gilbert, Sam Jacobson, Thad Jaracz, David Lattin, Patrick Maynor, Tyrone 10 Prothro, Damien Rhodes, Eric Riley, Bob Tallent, Danny Wimprine, Ray Ellis, Tate George, Jake 11 Fischer, Jake Smith, Darius Robinson, Moses Alipate and Chase Garnham (collectively O’Bannon 12 Plaintiffs); and 13 (iii). Alston/Hart Right of Publicity Plaintiffs: Shawne Alston and Ryan Hart. 14 The Keller Right of Publicity Plaintiffs, Antitrust Plaintiffs, and Alston/Hart Right of 15 Publicity Plaintiffs are collectively referred to as “Plaintiffs,” and enter into this agreement on 16 behalf of themselves and the Settlement Class as defined below. 17 SETTLING DEFENDANT 18 Defendant Electronic Arts Inc. may be referred to as “EA” or “Settling Defendant.” 19 Defendant Collegiate Licensing Company (“CLC”) is not a party to this Agreement, but is a 20 Released Party (as that term is defined below). The National Collegiate Athletic Association 21 (“NCAA”) is not a party to this Agreement and nothing in this Agreement shall be construed as 22 waiving any right, cause of action, or claim against the NCAA, provided however that nothing in 23 the foregoing shall affect the contribution bar described below in Paragraph 8(c). 24 Plaintiffs and Settling Defendant are each a “Party” and collectively referred to herein as 25 “the Parties.” This Agreement shall apply to all Settlement Class Members. 26 27 28 1 Case4:09-cv-01967-CW Document1108-2 Filed05/30/14 Page4 of 286 1 LAWSUITS 2 This Agreement is entered into in order to effect a full and final settlement and dismissal 3 with prejudice of all claims brought or that could have been brought against EA and CLC in the 4 following actions: 5 • Keller v. Electronic Arts, Inc. et al., Case No. 4:09-cv-01967-CW; 6 • 7 O'Bannon, Jr. v. National Collegiate Athletic Association et al., 4:09-cv-03329-CW; 8 • Bishop v. Electronic Arts, Inc., et al., 4:09-cv-04128-CW; 9 • Hart v. Electronic Arts, Inc., Case No. 09-CV-05990-FLW-LHG (removed from Case No. SOM-L-1094-09); 10 • Anderson v. National Collegiate Athletic Association et al, 4:09-cv-05100-CW; 11 12 • Thrower, et al. v. National Collegiate Athletic Association, et al., Case No. C-10- 632; 13 • Maze, et al. v. National Collegiate Athletic Association, et al., Case No. C-10-5569; 14 • Robertson, et al. v. National Collegiate Athletic Association, et al., Case No. CV- 15 11-0388; 16 • Hubbard, et al. v. Electronic Arts, Inc., Case No. 27858; 17 • Nuckles, et al. v. National Collegiate Athletic Association, et al. Case No. 27864; 18 • Jacobson v. National Collegiate Athletic Association et al., Case No. 4:09-cv- 19 05372-CW; 20 • Maze et al v. National Collegiate Athletic Association et al., 3:10-cv-05569-MEJ; 21 • Newsome v. National Collegiate Athletic Association et al., 4:09-cv-04882-CW; 22 • Rhodes v. National Collegiate Athletic Association et al., 4:09-cv-05378-CW 23 • Wimprine v. National Collegiate Athletic Association et al., 4:09-cv-05134-CW; and 24 • Russell v. National Collegiate Athletic Association et al., Case No. 4:11-cv-04938- 25 CW; 26 • Alston v. Electronic Arts Inc., Case No. 13-cv-05157-FLW-LHG 27 28 2 Case4:09-cv-01967-CW Document1108-2 Filed05/30/14 Page5 of 286 1 The Anderson, Bishop, Jacobson, Keller, Newsome, O’Bannon, Rhodes, Robertson, Russell, 2 Thrower and Wimprine cases have been consolidated under the caption In re NCAA Student-Athlete 3 Name and Likeness Licensing Litigation, Case No. 09-CV-1967-CW. Collectively, all the actions 4 listed above are referred to herein as the “Lawsuits.” This Agreement is intended to fully and 5 finally compromise, resolve, discharge and settle the Released Claims on the terms set forth below, 6 and to the full extent reflected herein, subject to the approval of the Court. 7 II. RECITALS 8 Keller Right of Publicity Plaintiffs and Alston/Hart Right of Publicity Plaintiffs 9 WHEREAS, on May 5, 2009, Plaintiff Samuel Keller filed a lawsuit in the Northern 10 District of California against EA, CLC, and the NCAA on behalf of himself and a proposed class 11 of all NCAA football and basketball players listed in the opening day roster of a school whose 12 team was included in any interactive software produced by EA, and whose assigned jersey number 13 appears on a virtual player in the software; 14 WHEREAS, on March 10, 2010, the Keller Plaintiffs amended the complaint to, among 15 other things, re-define the proposed class as (1) all NCAA football and basketball players listed in 16 the opening day roster of a school whose team was included in any interactive software produced 17 by EA, and whose assigned jersey number appears on a virtual player in the software, and (2) all 18 persons whose photographed image was included in any NCAA-related interactive software 19 produced by EA; 20 WHEREAS, on June 15, 2009, Plaintiff Ryan Hart and Troy Taylor filed a lawsuit in the 21 Superior Court of New Jersey against EA on behalf of themselves and all others similarly situated 22 for the “unauthorized advertisements and sale of products bearing the identity and likeness” of 23 Plaintiffs Ryan Hart and Troy Taylor; 24 WHEREAS, on October 24, 2009, Plaintiff Hart amended his complaint to dismiss Plaintiff 25 Taylor and, among other things, further define the class as “all athletes whose unauthorized images 26 were used by Defendant(s) [sic] for the sale of products bearing the identities and likenesses of the 27 Plaintiff and Class Members in disregard of the rights of the Plaintiff and Class Members.” 28 3 Case4:09-cv-01967-CW Document1108-2 Filed05/30/14 Page6 of 286 1 WHEREAS, EA removed the First Amended Complaint filed by Hart to the United States 2 District Court for the District of New Jersey. After removal, Hart filed a Second Amended 3 Complaint on October 12, 2010; 4 WHEREAS, on August 27, 2013, Plaintiff Shawne Alston filed a lawsuit in the United 5 States District Court for the District of New Jersey against EA on behalf of himself and two 6 proposed classes of: (1) all NCAA football and basketball players listed in the opening day roster 7 of a school whose team was included in any interactive software produced by EA, and whose 8 assigned jersey number appears on a virtual player in the software, and (2) all persons whose 9 photographed image was included in any NCAA-related interactive software produced by EA; 10 WHEREAS, Alston and Hart are pending before the Honorable Freda Wolfson in the 11 United States District Court for the District of New Jersey 12 WHEREAS, Plaintiff Hart and the proposed class are represented by The McKenna Law 13 Firm LLC and Lum, Drasco & Positan LLC, and Plaintiff Alston and the putative class described 14 in the complaint are represented by Hagens Berman. 15 WHEREAS, Timothy J. McIlwain, Esq. voluntarily withdrew as counsel in the Hart action 16 on November 14, 2013, and The Lanier Law Firm, PLLC, voluntarily withdrew as counsel in the 17 Hart action on October 15, 2013. 18 WHEREAS, the Keller, Hart, and Alston complaints allege generally that Defendants 19 misappropriated NCAA football and basketball players’ rights of publicity by using student 20 athletes’ names, images, and likenesses in EA’s NCAA-Branded Videogames and that Plaintiffs 21 and all putative class members were harmed by Defendants’ conduct. 22 Antitrust Plaintiffs 23 WHEREAS, on July 21, 2009, Plaintiff Edward C. O’Bannon Jr. filed a lawsuit against the 24 CLC and NCAA on behalf of himself and a proposed class of current and former NCAA Division I 25 basketball players and Football Bowl Subdivision football players, and subsequently amended his 26 Complaint to add EA as a defendant; 27 28 4 Case4:09-cv-01967-CW Document1108-2 Filed05/30/14 Page7 of 286 1 WHEREAS, Plaintiff O’Bannon alleged, among other things, that the NCAA, its member 2 schools and conferences, CLC and EA committed violations of the federal antitrust laws by 3 engaging in a price fixing conspiracy and a group boycott/refusal to deal that unlawfully foreclosed