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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

DRYER, et al., Plaintiffs, v. NATIONAL FOOTBALL LEAGUE, Defendant. _______________________________________

Civil No. 09-2182 PAM/AJB DRYER GROUP PLAINTIFFS SUPPLEMENTAL OPPOSITION TO DEFENDANT NATIONAL FOOTBALL LEAGUES MOTION FOR AN ORDER TO SHOW CAUSE

TO: THE HONORABLE COURT AND ALL PARTIES OF RECORD PLEASE TAKE NOTICE that Plaintiffs and Putative Class Representatives Fred Dryer, Jim Marshall, Elvin Bethea, Joe Senser, Dan Pastorini, and Ed White (for ease of reference, the Dryer Group Plaintiffs) hereby submit this Supplemental Opposition to Defendant National Football Leagues Motion for an Order to Show Cause. (Dkt. No. 230) (the Motion). I. INTRODUCTION. As the Court is aware, the Dryer Group Plaintiffs submitted their initial opposition brief (Dkt. No. 236) on Thursday, December 6, 2012, having been provided fewer than 24 hours notice by Defendant NFL to submit a responsive brief after receipt of the Motion on Wednesday, December 5, 2012, and prior to the hearing set that the NFL set on the Motion that was held on Thursday, December 6, 2012 at 2:00 p.m. Given the extreme nature of the remedy sought by the NFL, and the limited briefing to date, the Dryer Group Plaintiffs submit this supplemental brief (1) as an aid to the Court regarding the governing legal standards, and (2) to provide a further offer of proof regarding relevant facts that the Dryer Group Plaintiffs will prove should the Court issue any order to show cause and conduct the required full evidentiary proceeding.

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The Dryer Group Plaintiffs, in their initial opposition brief and accompanying six declarations (Dkt. Nos. 237, 238, 239, 242, 243, 244), set forth various relevant facts and distinguished the NFLs cited authorities. The Dryer Group Plaintiffs did not have adequate time to set forth relevant legal authorities, or to provide a more detailed offer of proof as to some additional relevant facts, and do so herein. The authorities and further offer of proof set forth herein detail: (1) The severity of a finding of contempt; (2) The burden of proof required for a contempt finding; (3) The required conduct of a contempt proceeding; (4) Courts examination of the relevancy of all parties conduct; and (5) A further offer of proof regarding numerous facts that demonstrate the NFL and its desired Plaintiffs cy pres settlement counsel have acted inconsistently with any belief that the gag order was in effect, or if it continued to be in effect, engaged in the same violations of it for which the NFL now claims extreme prejudice. II. THE SEVERITY OF A CONTEMPT REMEDY. The Supreme Court instructed that Process of contempt is a severe remedy, and should not be resorted to where there is fair ground of doubt as to the wrongfulness of the defendant's conduct. California Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618, 5 S.Ct. 618, 622 (1885) (Molitor) (emphasis added). See also Spallone v. U.S., 493 U.S. 265, 276, 110 S.Ct. 625, 632 (1990) (reversing trial court order of contempt as abuse of discretion, stating And the use of the contempt power places an additional limitation on a district court's discretion, for as the Court of Appeals recognized, in selecting contempt sanctions, a court is obliged to use the least possible power adequate to the end proposed. (citations omitted)) (emphasis added); American Foundry & Mfg. Co. v. Josam Mfg. Co., 79 F.2d 116, 118, 120, 124 (8th Cir. 1935) (quoting preceding language from Molitor, referring to the drastic penalties of contempt, the drastic remedy of contempt, and reversing lower court order of contempt) (emphasis added); Mahers v. Hedgepeth, 32 F.3d 1273, 1274-75 (8th Cir. 1994) -2-

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(Mahers) (reversing trial court contempt order, stating The contempt power is a most potent weapon, and therefore it must be carefully and precisely employed.) (emphasis added); Association for Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 495, 510 (D. N.D 1982) (denying contempt motion, stating The sanction of a contempt proceeding is an extreme sanction . . . and at the severe end of the spectrum, and it is not proper to find the Defendants in contempt of Court. However, it is apparent to me that a supplement to the Order of November 4, 1981, must be made.) (emphasis added); Mitchell v. Stewart Bros. Const. Co., 184 F. Supp. 886, 901 (D. Neb. 1960) (referencing the serious stigma and severe consequences of a contempt finding) (emphasis added). III. THE CLEAR AND CONVINCING EVIDENCE BURDEN OF PROOF. Defendant NFL entirely neglects to identify the burden of proof that must be met. The Eighth Circuit has detailed the burden of proof required for a finding of civil contempt. In Kansas City Power & Light Co. v. N.L.R.B., 137 F.2d 77, 79 (8th Cir. 1943), the court dismissed a contempt petition and stated: The rule as to quantum of evidence in civil contempt proceedings is in no way affected by the situation that such proceeding is in connection with an enforcement decree of an order of the Board. National Labor Relations Board v. Tupelo Garment Co., 5 Cir., 122 F.2d 603, 606. The rule is that contempt need not be shown beyond a reasonable doubt but that something more than a bare preponderance of evidence is necessary. Oriel v. Russell, 278 U.S. 358, 364, 49 S.Ct. 173, 73 L.Ed. 419; California Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618, 5 S.Ct. 618, 28 L.Ed. 1106. This Court has stated that a degree of certainty is required which leaves no fair ground of doubt. City of Campbell v. ArkansasMissouri Power Co., 65 F.2d 425, 428. Other courts of appeals have expressed the rule as requiring clear and convincing proof. National Labor Relations Board v. Tupelo Garment Co., 5 Cir., 122 F.2d 603, 606; Fox v. Capital Co., 3 Cir., 96 F.2d 684, 686; Telling v. Bellows-Claude Neon Co., 6

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Cir., 77 F.2d 584, 585; Hanley v. Pacific Live Stock Co., 9 Cir., 234 F. 522, 531. Whatever qualifying adjective may be used in the various opinions, they are unanimous that a heavy burden of proof rests upon the party urging contempt. We regard this rule as applicable here. See also SapaNajin v. Gunter, 857 F.2d 463, 465 (8th Cir. 1988) (affirming district court denial of contempt motion, and stating To prevail on his contempt claim, SapaNajin has the burden of establishing by clear and convincing evidence that the decree is being violated.); Mahers (referencing clear and convincing evidence standard). The Eighth Circuit also addressed the conduct of a contempt proceeding in Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1342 (8th Cir. 1975), reversed a trial court order of contempt, remanded for consideration of a second hearing, and stated that Like any civil litigant, a civil contemnor is . . . clearly entitled to those due process rights, applicable to every judicial proceeding, of proper notice and an impartial hearing with an opportunity to present a defense . . .. Certainly the history of contempt litigation, . . . prescribes extreme care and insistence on the full indicia of due process in contempt cases . . .) (omissions in original, citations omitted) (emphasis added). IV. COURTS EXAMINE ALL PARTIES CONDUCT REGARDING A GAGORDER. Defendant NFL failed to provide citation to applicable cases regarding so-called gag orders in which all parties conduct was relevant, or to class action cases. Such cases including the following: (1) U.S. v. Palfrey, 515 F. Supp. 2d 120, 122 -123 (D.D.C. 2007). There, the court stated the following: Defendant requests an order barring the Assistant United States Attorneys (AUSAs) assigned to prosecute this matter due to their alleged disclosure of privileged settlement communications for a malicious and improper purpose, and their allegedly implicitly violating the April 12, 2007 gag order and explicitly violating LCrR 57.7.

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Defendant's position is without merit. In its Memorandum Order of October 10, 2007, the Court observed that Defendant and her counsel have made extensive use of the media to inform the public about what they believe to be the merits of the case. The settlement negotiations to which Defendant cites have been referred to in various public statements she and her counsel have made and which have been widely reported in one fashion or another in the press. Accordingly, the Court concludes that Defendant has not shown improper conduct by AUSAs Daniel Pearce Butler, Catherine K. Connelly, William Rakestraw Cowden, and her request to bar those AUSAs is denied. (2) Com. v. Mulholland, 549 Pa. 634, 645-46, 702 A.2d 1027, 1032 (Pa. 1997). There, the Supreme Court of Pennsylvania stated the following: Next, [Defendants] Mulholland and Albert give specific examples of statements to the media which they say violated the court's prohibition against such communications. These included statements by David B. White, Esq., counsel for the Gammage family [the family of an alleged victim in the criminal case at issue], regarding the composition of the jury, and statements by Dr. Wecht, the medical expert hired by the Gammage family, that the absence of black jurors was not right. These statements occurred during jury selection, prior to the beginning of the trial. Both Dr. Wecht and Attorney White made additional statements, along similar lines, to the media during the trial. Two other witnesses, listed by both the Commonwealth and the police officers as witnesses, also appeared on television and made public statements about the trial. At the time of the television appearances, they had already appeared as Commonwealth witnesses and been released by the Commonwealth, yet they remained as defense witnesses. Neither the defense nor the prosecution informed them of the gag order. The statements of Mr. White, Dr. Wecht, and the other two witnesses Mulholland and Albert ascribe to the prosecutor, as he had never informed them of the gag order. This argument fails for two reasons. First, in order for the extrajudicial statements to constitute prosecutorial misconduct, the prosecutor must be clearly responsible for the misconduct. [footnote omitted] Here, the objectionable
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statements were not made by the prosecutor's office, but by others. The statements of White, a private attorney, are attributed to the prosecutor because he allegedly coordinated Commonwealth witnesses. The other three witnesses who made extrajudicial statements were listed as witnesses by both the prosecution and the defense, and, accordingly, any error must be shared by both sides. Second, if such misconduct occurred, a mistrial was not required; the court could impose contempt sanctions or bar the testimony of any witness who violated the gag order. (3) In Hedrick v. Marchand, No. CIV-S-75-680 LKK, 1983 WL 474, at * 4 (E.D. Cal. Feb. 4, 1983), the court stated: 12. Gag Order. With respect to the objection that there was a gag order preventing proper information concerning this settlement to be made available to members of the class or to individual plaintiffs, the Court finds that the stipulated order of January 13, 1981, did not prohibit discussion with any member of the class or any plaintiff concerning the proposed settlement once it was tentatively agreed upon. Counsel for plaintiffs were not prohibited from discussing proposals or strategy with the plaintiffs during the course of the settlement discussions and, in fact, counsel did so. The order did not prevent counsel from discussing with any plaintiff or class member any concern about past or present working conditions or employment practices in Yolo County or from discussing any proposal that any plaintiff or class member thought should be advanced in the settlement process. V. ADDITIONAL OFFER OF PROOF The Dryer Group Plaintiffs, in their initial brief, set forth various relevant facts that they are prepared to prove should the Court issue an order to show cause, which they believe it should not. Those plaintiffs are prepared to submit and prove the following additional relevant facts at an evidentiary hearing, in addition to those detailed in their initial brief and others to be developed through continued investigation: (1) The NFL had advance knowledge that non-parties would attend and participate in the November 27, 2012 Status Conference, and did not object,

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before or after that event. (2) Subsequent to the November 27, 2012 Status Conference, and prior to Mr. Lurtsemas letter appearing on Dave Pears blog, counsel that were advocating for the agreed-upon settlement with the NFL caused one or more non-parties in attendance at the November 27, 2012 Status Conference to advocate for the agreed-upon settlement by sending numerous emails to non-Plaintiff putative class members. These emails disclose numerous items regarding the settlement. At a minimum, the emails include the following: (a) A November 28, 2012 email sent to at least 25 individuals, including at least eight individuals not even present at the November 27, 2012 Status Conference, and perhaps many more (the undersigned are still seeking to verify the identities of certain recipients). Even more troubling, the email makes it clear that there had already been communications with those individuals regarding the proposed settlement. It is presently unknown whether those were in writing, verbal, or both. Interim Plaintiffs Co-Lead Class Counsel Hausfeld and Zimmerman are copied on this email. There was no indication whatsoever that the recipients were prohibited from, in turn, emailing the information to others and/or discussing it with others. (b) A November 29, 2012 email from the same non-plaintiff class member to at least two non-plaintiff class members commenting on the settlement, neither of whom was at the November 27, 2012 Status Conference. (c) A November 30, 2012 email from the same non-plaintiff class member to at least two non-plaintiff class members commenting on the settlement, neither of whom was at the November 27, 2012 Status Conference.
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(d)

A December 3, 2012 email from the same non-plaintiff class member to at least ten non-plaintiff class members commenting on the settlement, at least seven of whom were not at the November 27, 2012 Status Conference (the undersigned is continuing research as to the identifies of the others). The email further seeks to set up a players only meeting to further discuss the settlement.

(3) Prior to the November 27, 2012 Status Conference, counsel told a number of nonparties on a number of occasions that this case would settle for the amount stated by the NFL at the November 27, 2012 Status Conference, and provided other material terms of the proposed settlement. (4) Certain Plaintiffs Counsel made a settlement offer which was relayed to a number of non-parties before Plaintiffs knew it was going to be done. Certain Plaintiffs Counsel subsequently denied ever discussing the amount with nonparties. In other words, non-parties knew of certain Plaintiffs Counsels offer before Plaintiffs did, and when asked thereafter, denied that the offer or statement was made. (5) A non-party, non-putative class member attended the November 27, 2012 Status Conference, and heard Plaintiffs counsel, NFL counsel, and the Court discuss their opinions on the strengths and weaknesses of the case. This individual was present while certain of Plaintiffs counsel denigrated their own clients legal and factual positions in the case. The undersigned were unaware of who he was, and unaware as to whether even the Court was aware of his identify and status as a non-Plaintiff, non-putative class member. We further understand that he even was advocating for the proposed settlement in the portion of the November 27, 2012 Status Conference that was specifically designated by the Court as the players only portion of the Conference. (6) On November 29, 2012, certain Plaintiffs counsel sent the entire draft
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settlement agreement to at least one non-party class member, further evidencing that there was no either Gag Order in effect, or they were willfully choosing to ignore it. (7) Numerous additional days have passed since the NFLs filing of its Motion. It still has not proposed any redacted version of the Lurtsema letter. (8) The NFL still has made no effort to remove or redact its Motion from the publicly-available PACER system, i.e., the portion of the Motion that provides two links at which Mr. Lurtsemas letter can be found. The PACER website states that PACER is available to anyone who registers for an account. The nearly
one million PACER users include attorneys, pro se filers, government agencies, trustees, data collectors, researchers, educational and financial institutions, commercial enterprises, the media, and the general public. <http://www.pacer.gov> (last visited December 7, 2012). (9) The NFL has made no articulation of potential juror prejudice, the dominant concern of any court that examines gag-order issues. See, e.g., U.S. v. Peters, 754 F.2d

753, 762-63 (7th Cir. 1985) (There is of course, a temptation to assume that the
public at large devotes time and effort to reading and remembering news items on pending cases. The real fact is that people who read and write for a living-such as those in the legal or journalism fields-tend to believe that everyone else reads news stories with devoted attention . . . One of the greatest students of the American jury once remarked that the jury is a pretty stubborn, healthy institution, not likely to be overwhelmed either by a remark of counsel or a remark in the press. . . . Kaplan concluded that a minimally competent voir dire was enough to counter most media-induced bias.).

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(10)Mr. Lurtsema did not do anything other than submit a letter to Dave Pears blog, which is simply a vehicle for retired NFL players to communicate with each other, and is not a newspaper. It is not as if, for example, Mr. Lurtsema or anyone else gave any local press conference in Minneapolis, did an interview with a local Minneapolis newspaper, or anything else that could even remotely be seen as an attempt to influence jurors as to the NFLs liability in this matter. (11) The NFL does not articulate any specific prejudice that it has suffered here with respect to putative class members, and it is far from clear that is even a relevant factor in the analysis. In the event that it is, the Dryer Group Plaintiffs will present a number of facts regarding the NFLs relationship with retired plaintiffs, which will make in unequivocally clear that the relationship has not been a good one, and no class member would have been surprised by the NFLs efforts here with respect to the settlement and that there were significant shortcomings to it, to put it charitably.

Moreover, it is important to examine how Mr. Lurtsema ends his letter: I am against accepting it and wanted all of you to know why. But it should be your own call to make. (12) The importance of communications with class-members in the present circumstances is illustrated by another case involving Plaintiffs Interim CoLead Class Counsel Mr. Hausfeld. The case, involving antitrust claims against Microsoft, illustrates plaintiffs lawyer efforts to create a falsemomentum towards acceptance of a settlement, highlighting the importance of open and frank communication with class members. The February 28, 2002 edition of American Lawyer provides an initial overview. In an article titled 1 Live Crew: A Look at an Attorney in the Microsoft Action To cut one
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national deal with Microsoft, did some class action plaintiffs lawyers sell out California consumers?, by Susan Beck, available at <http://www.law.com/jsp/article.jsp?id=900005529413&1_Live_Crew&slretu rn=20121109220518> (last visited December 9, 2012), the author states: After months of negotiations that took place with Judge Motz's knowledge, Tulchin, Microsoft deputy general counsel Thomas Burt, Hausfeld and Chesley went to the judge on Oct. 17 and proposed the education settlement that would extinguish all consumer claims, including the California suit. (Plaintiff attorney fees would be negotiated by Hausfeld, Chesley and Microsoft and submitted for court approval.) Judge Motz suggested that Lieff, who was participating by phone, inform Crew of this development. That's when a startled Crew refused to hear the details from Lieff. Milberg Weiss' Leonard Simon, a member of the multidistrict plaintiffs' 28-lawyer team who cast the only vote against the deal, says that bypassing Crew was wrong. By going to Judge Motz first, and piquing his interest, he says, Microsoft and the lead plaintiffs' lawyers hoped to "cram down" the settlement. Says Simon: "They did this to box Crew in and put massive pressure on him to accept a settlement that he had not been involved in negotiating. ... Lead federal plaintiffs' lawyer Hausfeld explains that they didn't include Crew because he'd been uncooperative before, and Hausfeld saw no reason to reach out again. "California was offered a number of opportunities to be involved [in joint negotiations] and declined," he claims, adding that he had a letter showing their efforts to include Crew's team in the talks. After several requests for that document, however, Hausfeld supplied a letter that did not support his claim; written by Lieff to Crew, it was dated Oct. 29, 2001 -- after Hausfeld and Microsoft had gone to Judge Motz with the deal. Ultimately, Mr. Hausfelds efforts failed, in part due to the continued objections of attorney Crew. Judge Motz rejected Mr. Hausfelds efforts to secure preliminary approval of a dubious and heavily disputed class action settlement, objected to by other plaintiffs counsel, that envisioned the creation of a new charitable entity. See In re Microsoft Corp. Antitrust Litig., 185 F. Supp. 2d 519, 527(D. Md. 2002), stating the present record establishes that the Foundation contemplated by the agreement is critically underfunded. (emphasis added). In contrast, Mr. Crew ultimately settled his claims just on

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behalf of California residents for more than $1 billion. Finally, the Dryer Group Plaintiffs assert that due process and the case law regarding contempt proceedings requires that a full evidentiary record be developed. This will require documentary and deposition testimony of NFL personnel, representatives of the Hausfeld firm, their agents including those that authored the emails cited herein, as well as at least some of the email recipients to gain their understanding of confidentiality and whether they in turn communicated settlement-related matters to others.
VI. CONCLUSION. For the reasons stated herein and in their initial opposition brief, the Dryer Group Plaintiffs respectfully request that the Court deny the NFLs Motion, and that if it does not deny the Motion, that a full evidentiary proceeding be held that provides for the pre-hearing compilation of relevant discovery from all parties and relevant non-parties. Dated: December 9, 2012 Respectfully Submitted, /s/ Robert A. Stein_____________
BOB STEIN LLC Robert A. Stein MN 104930 6473 Beach Road Eden Prairie, MN 55344 Telephone: (952) 829-1043 Facsimile: (952) 829-1040 Email: rastein66@aol.com

Plaintiffs Interim Co-Lead Class Counsel, and Co-Counsel for the Dryer Group Plaintiffs Jon T. King (Cal. Bar No. 205073; pro hac vice) 856 Walbrook Ct. Walnut Creek, CA 94598 Telephone: (925) 698-1025 Email: jtk70@comcast.net

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Co-Counsel for Plaintiff Pastorini

Thomas J. Ward, pro hac vice WARD & WARD, P.L.L.C. 2020 N Street, N.W. Washington D.C., 20036 Telephone: (202) 331-8160 Facsimile: (202) 331-9069 Email: tom@wardlawdc.com

Co-Counsel for the Dryer Group Plaintiffs

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L.R. 7.1(f) WORD COUNT COMPLIANCE CERTIFICATE I, Robert A. Stein, certify that the Dryer Plaintiffs Groups Supplemental Opposition to Defendant National Football Leagues Motion for an Order to Show Cause complies with Local Rule 7.1(f). I further certify that, in preparation of this memorandum, I used Microsoft Word for Mac 2011, and that this word processing program has been applied specifically to include all text, including headings, footnotes, and quotations in the following word count. I further certify that the above referenced memorandum contains 3,809 words. The prior brief for which the above referenced memorandum is a supplement contains 5,869 words, for a total of 9,678 words. Dated: December 9, 2012 Respectfully Submitted, /s/ Robert A. Stein_____________
BOB STEIN LLC Robert A. Stein MN 104930 6473 Beach Road Eden Prairie, MN 55344 Telephone: (952) 829-1043 Facsimile: (952) 829-1040 Email: rastein66@aol.com

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