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1 MANATT, PHELPS & PHILLIPS, LLP

RONALD S. KATZ (Bar No. CA 085713)
2 E-mail: [email protected]
RYAN S. HILBERT (California Bar No. 210549)
3 E-mail: [email protected]
NOEL S. COHEN (California Bar No. 219645)
4 E-mail: [email protected]
1001 Page Mill Road, Building 2
5 Palo Alto, CA 94304-1006
Telephone: (650) 812-1300
6 Facsimile: (650) 213-0260
7 McKOOL SMITH, P.C.
LEWIS T. LECLAIR (Bar No. CA 077136)
8 E-mail: lleclair@mckoolsmith
300 Crescent Court, Suite 1500
9 Dallas, TX 75201
Telephone: (214) 978-4000
10 Facsimile: (214) 978-4044

11 Attorneys for Plaintiffs

A PROFESSIONAL CORPORATION • ATTORNEYS

UNITED STATES DISTRICT COURT

12 NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
13
MCKOOL SMITH

DALLAS, TEXAS

CIVIL ACTION NO. C07 0943 WHA

14 HERBERT ANTHONY ADDERLEY,
on behalf of himself and all others
15 similarly situated,
16
Plaintiff
17 CLASS COUNSELS’ STATUS
UPDATE AND MOTION FOR
18 vs. FINAL ORDER APPROVING
PAYMENTS TO THE GLA
19 CLASS
NATIONAL FOOTBALL LEAGUE
20 PLAYERS ASSOCIATION, a Virginia
corporation, and NATIONAL
21 FOOTBALL LEAGUE PLAYERS
INCORPORATED d/b/a PLAYERS
22 INC, a Virginia corporation,
23 Defendants.
24

25

26

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1 Counsel for the GLA Class (“Class Counsel”) submit the following status update, and
2 report concerning efforts to find additional class members and transmission of third Claim Forms
3 to Class Members for whom they recently obtained updated address information. Class Counsel
4 also seek final approval with respect to payments to the GLA Class, including determination of
5 all remaining issues.
6 I. BACKGROUND FACTS
7 As this Court is aware, Class Counsel and their claims administrator, the Garden City
8 Group (the “Claims Administrator”), have worked diligently since late 2009 to locate and send
9 Claim Forms to each member of the GLA Class.
10 On November 23, 2009, the Court granted Class Counsel’s Motion for Final Approval of
11 the Settlement Agreement and Proposed Plan of Distribution. Shortly thereafter, on December
A PROFESSIONAL CORPORATION • ATTORNEYS

12 11, 2009, Class Counsel caused the Claims Administrator to mail each Class Member for whom
13
MCKOOL SMITH

Class Counsel has a known address a first Claim Form and Release (“Claim Form”). See
DALLAS, TEXAS

14 Declaration of Ronald S. Katz (“Katz Decl.”) ¶ 2; Declaration of Jennifer M. Keough (“Keough

15 Decl.”) ¶ 3. The Claim Form stated that the recipient must return a completed Claim Form to the
16 Claims Administrator on or before February 9, 2010, to share in the settlement amount. Katz
17 Decl. ¶ 2; Keough Decl. ¶ 3.
18 The Claims Administrator received 1,571 Claim Forms that were postmarked on or
19 before the February 9, 2010 deadline, and distributed funds to each of the Class Members who
20 submitted a Claim Form by that deadline. Keough Decl. ¶ 4. Nine Class Members timely
21 returned Claim Forms but such forms were deficient in some manner. Id. Four hundred and
22 eighty eight Class Members did not submit a completed Claim Form by the deadline. Id. Of
23 those 488 Class Members who did not return a completed Claim Form, 261 Class Members had
24 Claim Forms that were returned as “undeliverable”. Id.
25 In light of the large number of “undeliverable” Claim Forms, Class Counsel instructed the
26 Claims Administrator to conduct “advanced address searches” for those 261 Class Members in
27 an effort to identify updated addresses. Keough Decl. ¶ 5. This process entailed having the
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1 Claims Administrator try to locate updated addresses by submitting the names, addresses, phone
2 numbers and, if available, Social Security numbers to Choicepoint, a Lexis-based database that
3 aggregates publicly available records, such as utility and financial records. Id. The Claims
4 Administrator also used available address information to look up Class Member phone numbers
5 using a reverse directory look-up on the internet and to subsequently make attempts to contact
6 these individuals by phone in order to get an updated address. Id.
7 Despite the fact that the deadline for submitting a completed Claim Form had passed,
8 Class Counsel then authorized the Claims Administrator to send a second notice to each of those
9 Class Members who did not timely submit a Claim Form and for whom Class Counsel had a
10 known address. Katz Decl. ¶ 3; Keough Decl. ¶ 5. Class Counsel notified the Court of their
11 intentions on March 22, 2010. See Class Counsels’ Notice Regarding Distributions from the
A PROFESSIONAL CORPORATION • ATTORNEYS

12 Settlement Fund, Docket No. 681.

13
MCKOOL SMITH

The Claims Administrator mailed each Class Member for whom it had a known address a
DALLAS, TEXAS

14 second Claim Form in or around March 2010. Keough Decl. ¶ 6. This Claim Form extended the
15 deadline to June 1, 2010. Id. By the time the June 1, 2010 deadline had passed, the Claims
16 Administrator had received a total of 1,792 completed Claim Forms and had distributed funds to
17 each of those 1,792 Class Members. Id. The Class Administrator also received seven
18 “incomplete” claim forms that were postmarked on or before the June 1, 2010.1 Id. Two Class
19 Members – Lester Hayes and Eric Davis – submitted Claim Forms after the June 1, 2010
20 deadline and thus have yet to be paid. Id.
21 Unfortunately, despite the diligent efforts of Class Counsel and the Claims Administrator,
22 202 of the second Claim Forms that were sent in or around March 2010 were returned as
23 “undeliverable” a second time. Keough Decl. ¶ 7. Therefore, following the Court’s July
24 21,2010 Order, the Claims Administrator, with the assistance and under the supervision of Class
25 Counsel, took the additional step of using social security information provided confidentially by
26
1
27 Class Counsel is still working with the Claims Administrator to cure these deficiencies and
fully intends to include these seven Class Members in the final distribution of payments.
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1 Defendants to run additional advanced address searches in an attempt to find updated address
2 information for those 202 Class Members whose Claim Forms were previously returned as
3 “undeliverable”. Id. As a result of these collective efforts, and based on information provided
4 by Defendants and calls received by retired players, Class Counsel and the Claims Administrator
5 obtained updated contact information for 76 additional Class Members. Id. This information
6 was conveyed to the Court in a filing made on August 12, 2010. See Response re Order Class
7 Counsels’ Response to July 21, 2010 Order, Docket No. 709.
8 On Friday, August 13, 2010, this Court instructed Class Counsel to send out a third Claim
9 Form to each of those 76 additional Class Members for whom Class Counsel and the Claims
10 Administrator was able to obtain updated addresses, and to give those players four weeks to
11 respond. See Order Authorizing Third Round of Mailings, Docket No. 714. Attached as Exhibit
A PROFESSIONAL CORPORATION • ATTORNEYS

12 A to the Keough Declaration is a list of these 76 players.

13
MCKOOL SMITH

II. STATUS UPDATE SINCE THE COURT’S AUGUST 13, 2010 ORDER
DALLAS, TEXAS

14 Following the Court’s August 13, 2010 Order, the third Claim Forms were individually
15 populated by the Claims Administrator and then mailed on August 23, 2010. Katz Decl. ¶ 4;
16 Keough Decl. ¶ 8. The deadline to submit a completed third Claim Form was September 20,
17 2010. Keough Decl. ¶ 8. Around this time, Class Counsel also obtained updated contact
18 information from three Class Members who called to inquire about the lawsuit. Katz Decl. ¶ 5.
19 These Class Members were Kerry L. Cash, Stephen Wisniewski, and Otis Wonsley. Id. Because
20 Class Counsel never had current addresses for these three Class Members, and thus previous
21 efforts to reach them had been unsuccessful, Class Counsel instructed the Claims Administrator
22 to immediately send them third Claim Forms. Id.2
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On July 27, 2010, former Oakland Raider Jack Tatum passed away. A third claim form was
26 sent to his widow, Denise Tatum, on September 3, 2010, and returned to Class Counsel. Katz
Decl. ¶ 6. In addition, a third claim form was returned to Class Counsel by the widow of Don R.
27 Paul. Id. Class Counsel intend to distribute to these individuals the share of the Settlement Fund
to which their husbands were entitled.
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1 As of September 27, 2010, the Claims Administrator’s records indicated that 32 of the 76
2 additional Class Members (or their representatives)3 to whom the Claims Administrator sent a
3 third Claim Form had submitted completed Claim Forms. Keough Decl. ¶ 9. Attached as
4 Exhibit B to the Keough Declaration is a list of those 32 players who submitted completed
5 Claim Forms. In addition, all three of the Class Members from whom Class Counsel got updated
6 addresses after the August 23, 2010 submitted completed Claim Forms.
7 All told, Class Counsel has received completed Claim Forms from 1,837 Class Members,
8 which represents approximately 89% of the Class. Class Counsel also has disbursed
9 $8,176,320.81 in Settlement Funds to date, with $11,457,182.75 remaining in the Escrow
10 Account.
11
III. SIX CLASS MEMBERS RETURNED CLAIM FORMS AFTER THE DEADLINE
A PROFESSIONAL CORPORATION • ATTORNEYS

12 Six Class Members contacted the Class Administrator or Class Counsel and indicated that
13
MCKOOL SMITH

they did not receive the Claim Form that was mailed to them, or that they returned the Claim
DALLAS, TEXAS

14 Form even though the Class Administrator does not have a record of it. Katz Decl. ¶ 7. These
15 six Class Members are: Georgia Buchanan, Darrell Colbert, Ray Ethridge, Nick Lowery, Ray
16 Perkins and Doug Williams. Id.
17 Unlike the three Class Members discussed above, the situations for each of these six
18 Class Members is unique. The individual situation for each of these six Class Members is
19 summarized on Exhibit 1 to the Katz Declaration. Class Counsel sent each of them a letter
20 informing them that they were not entitled to any settlement funds under the strict terms of the
21 claims process because of the failure to return a completed Claim Form by the deadline. Katz
22 Decl. ¶ 8. Nonetheless, Class Counsel requested additional information so that Class Counsel
23 could seek guidance from the Court with respect to their specific situations. Id. In order to assist
24 the Court, Class Counsel asked these Class Members to submit a completed third Claim Form,
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26 3
Charles M. Patrick’s representative is Betty Patrck; Ed Pine is confirmed as trustee of the estate
27 of Jack Pine; Judith Ballman is the surviving spouse of Gary Ballman; and Marion Klein is the
surviving spouse of Richard J. Klein. Keough Decl. ¶ 10.
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1 which was enclosed, along with a letter explaining why they either did not or were unable to
2 timely return a Claim Form within the deadline. Id. Collectively attached as Exhibit 2 to the
3 Katz Declaration are the six letters (with enclosures) that Class Counsel sent. Five letters were
4 sent Certified Mail Return Receipt Requested and Class Counsel received Return Receipts for all
5 five letters.4 The sixth letter was sent via e-mail because of time concerns. Id.
6 As of September 27, 2010, five of these six Class Members – including the Class Member
7 to whom Class Counsel sent the letter via e-mail – responded with written explanations: Georgia
8 Buchanan, Darrell Colbert, Ray Ethridge, Ray Perkins and Nick Lowery. Katz Decl. ¶ 10.
9 These responses are collectively attached as Exhibit 3 to the Katz Declaration. One other
10 player, Doug Williams, returned a completed Claim Form, but did not submit an explanatory
11 response. Id.
A PROFESSIONAL CORPORATION • ATTORNEYS

12 In addition to these six members, as previously noted, two players – Lester Hayes and
13
MCKOOL SMITH

Eric Davis –received but did not timely submit a first or second Claim Form by either of the
DALLAS, TEXAS

14 original two deadlines.

15 After due consideration of all that has occurred with respect to efforts to contact former
16 players and to get settlement funds distributed to all who are eligible, Class Counsel recommends
17 that the Court authorize payment from the Settlement Fund to all that currently have a Claim
18 Form on file with the Claims Administrator, whether or not the Forms were late or deficient
19 (assuming that deficiencies are ultimately corrected).
20 III. RELIEF REQUESTED
21 Class Counsel respectfully request that the Court issue a final order approving payment of
22 the settlement funds to Class Members. As a part of that ruling, Class Counsel requests that the
23

24 4
Class Counsel also sent a letter and third claim form to a seventh Class Member, Randy White.
25 Mr. White claims that he never received a first or second claim form, and the Class
Administrator does not have a record of receiving any from him. Mr. White’s letter and claim
26 form was sent Certified Mail Return Receipt Requested and Class Counsel received a Return
Receipt for Mr. White. Class Counsel also phoned Mr. White to follow up on their letter.
27 Unfortunately, as of the time of this filing, Mr. White has not responded to Class Counsel’s
communications. Katz Decl. ¶ 9.
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1 Court make a ruling authorizing or denying payment from the Settlement Fund to the six Class
2 Members mentioned above and discussed on Exhibit 1 to the Katz Declaration, as well for the
3 two players whose Claim Forms were received after the deadline. Class Counsel further requests
4 that they be authorized to send final payments to each of the Class Members who is entitled to a
5 share of the Settlement Fund in the amount to which each Class member is entitled.
6 Attached as Exhibit 4 to the Katz Declaration is a spreadsheet showing how much each
7 player who has submitted a third claim form is expected to receive. This spreadsheet includes
8 the eight players mentioned in the preceding paragraph.5 The accuracy of the numbers in this
9 spreadsheet have been confirmed by Class Counsels’ damages expert, LECG.
10 In addition, Class Counsel request that they be authorized to pay the Claims
11 Administrator all outstanding fees through completion of the project, as well as their damages
A PROFESSIONAL CORPORATION • ATTORNEYS

12 expert, LECG, for confirming the accuracy of the numbers. Attached as Exhibit C to the
13 Keough Declaration is an invoice from the Claims Administrator.6 Attached as Exhibit 6 to the
MCKOOL SMITH

DALLAS, TEXAS

14 Katz Declaration is the invoice from LECG. Class Counsel further request that they be allowed
15 to reimburse McKool Smith, P.C. in the amount of $7,139.64 for funds that McKool
16 inadvertently paid to the Claims Administrator that should have come out of the Settlement
17 Fund.
18 IV. CONCLUSION
19 Class Counsel respectfully request that the Court provide the relief requested above,
20 approve final payment, and order the settlement process closed. Class Counsel believe that it is
21 time to bring the settlement process to an end and to close administration of the settlement.
22 Substantial efforts have been made to locate all eligible Class Members and the Court has been
23
5
Should the Court deny payment to any of the eight Class Members, Class Counsel will amend
24 the spreadsheet to reflect the Court’s ruling and submit it to the Court for final approval. For
purposes of information as to the effect of the Court’s ruling, Exhibit 5 to the Katz Declaration
25 is spreadsheet showing how much each player who has submitted a third claim form would be
expected to receive if the eight Class Members discussed above were excluded. As before, the
26 accuracy of the numbers in this spreadsheet have been confirmed by LECG.
6
27 Please note that this invoice does not include past due fees to the Claims Administrator in the
amount of $14,185.52.
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1 diligent in protecting the rights of the absent Class Members. Although it is entirely possible
2 that one or more Class Members could surface following the final payments requested by this
3 Motion, Class Counsel does not believe that it is in the best interest of the Class Members as a
4 whole to retain any remaining funds or to continue the process of settlement administration with
5 ongoing costs. Finality is important and any retained funds would likely not be able to be
6 distributed to Class Members if no further missing Class Members were to surface because
7 administrative costs would exceed the amount to be distributed.
8
Respectfully submitted,
9
Dated: October 5, 2010 MANATT, PHELPS & PHILLIPS, LLP
10
By:_/s/Ronald S. Katz____________________
11 Ronald S. Katz (SBN 085713)
A PROFESSIONAL CORPORATION • ATTORNEYS

Ryan S. Hilbert (SBN 210549)

12 Noel S. Cohen (SBN 219645)
1001 Page Mill Road, Building 2
13 Palo Alto, CA 94304-1006
MCKOOL SMITH

DALLAS, TEXAS

Telephone: (650) 812-1300

14 Facsimile: (650) 213-0260
15 MCKOOL SMITH, P.C.
Lewis T. LeClair (SBN 077136)
16 Jill Adler Naylor (SBN 150783)
300 Crescent Court
17 Dallas, TX 75201
Telephone: (214) 978-4984
18 Facsimile: (214) 978-4044
Attorneys for Plaintiffs
19 300134348.1

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