Parrish et al v. National Football League Players Incorporated, No. 3:2007cv00943 - Document 246 (N.D. Cal. 2008)

Court Description: Memorandum in Opposition re 229 MOTION to Strike The Declaration Of Marvin Miller Filed In Support Of Plaintiffs Motion For Class Certification filed byBernard Paul Parrish, Walter Roberts, III, Herbert Anthony Adderley. (Attachments: # 1 Proposed Order Denying Motion to Strike)(Katz, Ronald) (Filed on 4/4/2008)
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Parrish et al v. National Football League Players Incorporated 1 Doc. 246 11 MANATT, PHELPS & PHILLIPS, LLP RONALD S. KATZ (Bar No. CA 085713) E-mail: RYAN S. HILBERT (California Bar No. 210549) E-mail: NOEL S. COHEN (California Bar No. 219645) E-mail: 1001 Page Mill Road, Building 2 Palo Alto, CA 94304-1006 Telephone: (650) 812-1300 Facsimile: (650) 213-0260 McKOOL SMITH, P.C. LEWIS T. LECLAIR (Bar No. CA 077136) E-mail: JILL ADLER (Bar No. CA 150783) E-mail: 300 Crescent Court, Suite 1500 Dallas, TX 75201 Telephone: (214) 978-4000 Facsimile: (214) 978-4044 12 Attorneys for Plaintiffs 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN FRANCISCO DIVISION 15 16 17 18 CIVIL ACTION NO. C07 0943 WHA BERNARD PAUL PARRISH, and HERBERT ANTHONY ADDERLEY, on behalf of themselves and all others similarly situated, 19 20 21 22 23 24 Plaintiffs vs. NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, a Virginia corporation, and NATIONAL FOOTBALL LEAGUE PLAYERS INCORPORATED d/b/a PLAYERS INC, a Virginia corporation, Date: April 24, 2008 Time: 8:00 a.m. Judge: Honorable William H. Alsup Defendants. 25 26 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE DECLARATION OF MARVIN MILLER FILED IN SUPPORT OF MOTION FOR CLASS CERTIFICATION Plaintiffs hereby submit this Opposition to Defendants’ Motion to Strike the Declaration 27 of Marvin Miller filed in support of Plaintiffs’ Motion for Class Certification. 28 M ANATT , P HELPS & P HILLIPS , LLP PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ “MOTION TO STRIKE” DECLARATION OF MARVIN MILLER, CASE NO. C07 0943 WHA ATTORNEYS AT LAW PALO ALTO Dallas 246010v1 1 I. 2 INTRODUCTION Realizing that Marvin Miller’s testimony cannot be refuted and is a significant blow to 3 their case, Defendants have baselessly attempted to “strike” Mr. Miller’s declaration. In doing so, 4 Defendants’ utilize the wrong legal standard and direct the Court to case law that actually 5 supports denial of their own Motion. Defendants’ Motion to Strike the Declaration of Marvin 6 Miller should be denied. 7 Defendants move to strike Mr. Miller’s declaration on several grounds. First, Defendants 8 argue that Mr. Miller is not qualified to provide an expert opinion. This argument is without 9 merit; as there could not be a more qualified individual to submit a declaration regarding sports 10 unions than Marvin Miller, the highly acclaimed and former Executive Director of the Major 11 League Baseball Players Association (“MLBPA”). For 17 years, Mr. Miller held the identical 12 position for the MLBA that Gene Upshaw currently holds for the NFLPA. Indeed, in 2000, Mr. 13 Miller was ranked fifth on the Sporting News’ list of the “100 Most Powerful People in Sports for 14 the 20th Century.” [Declaration of Marvin Miller (“Miller Decl.”), ¶ 7.] As such, Mr. Miller is 15 extraordinarily qualified to opine on the issues in his declaration. 16 Defendants next argue that Mr. Miller’s testimony is inadmissible because he is opining 17 on a legal issue that is not relevant to certification. Again, Defendants are wrong. In fact, Mr. 18 Miller is opining on issues that are crucial to class certification: commonality and typicality. 19 Specifically, Mr. Miller states that based on his unparalleled experience, “all members of sports 20 unions must be treated equally” and that “it is incumbent upon the NFLPA in this case to treat all 21 of the participants in its group licensing program equally.” [Miller Decl., ¶¶ 8, 10.] 22 23 24 Accordingly, and as detailed below, Defendants’ Motion to Strike should be denied. II. ARGUMENT A. 25 1. 26 27 28 Relevant Legal Standards Defendants Have Not and Cannot Meet the High Standard Required For a Motion to Strike A motion to strike should not be granted unless the matter to be stricken clearly could have no possible bearing of the subject of the litigation. McPhail v. First Command Financial PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ 2 “MOTION TO STRIKE” DECLARATION OF MARVIN MILLER, CASE NO. C07 0943 WHA Dallas 246010v1 1 Planning, Inc., 247 F.R.D. 598, 605 (S.D. Cal. 2007). If there is any doubt whether the portion to 2 be stricken might bear on an issue in the litigation, the court should deny the motion.” Id. (citing 3 Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F.Supp.2d 1048, 1057 (N.D. Cal. 2004) (internal 4 citations omitted)). The court views the pleading in the light most favorable to the nonmoving 5 party. In re, Inc. Sec. Litig., 114 F.Supp.2d 955, 965 (C.D. Cal. 2000). As set 6 forth below, the application of this standard warrants denial of Defendants’ Motion to Strike. 7 2. 8 Defendants Misstate the Standard for Motions to Strike Expert Testimony at the Class Certification Stage 9 Defendants proclaim that “in the class certification context, Rule 702’s reliability 10 requirement as set forth in Daubert v. Merrell Dows Pharms., Inc. serves as a ‘guidepost’ in the 11 court’s determination of whether expert testimony is sufficiently reliable.” [Motion at 3:1-3.] 12 However, Defendants’ own case law1 articulates a different, and correct standard for expert 13 testimony as it relates to class certification. Specifically, the law is clear that “[a]t the class 14 certification stage, courts employ ‘a lower Daubert standard’ to analyze the admissibility of 15 expert testimony.” Dukes v. Wal-Mart, Inc., 474 F.3d 1214, 1227 (9th Cir. 2007); McPhail v. 16 First Command Financial Planning, 247 F.R.D. 598, 604 (S.D. Cal. 2007) (applying a more 17 “lenient” standard during class certification); O’Connor v. Boeing North American Inc., 184 18 F.R.D. 311, 321, fn. 7 (C.D.Cal. 1998) (Daubert inquiry inappropriate at class certification stage). 19 The reasoning behind the application of a lower standard on class certification is well 20 articulated in Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 21 F.R.D. 159, 162 (C.D. Cal. 2002). In Thomas, the defendant moved to strike plaintiff’s expert 22 offered in support of class certification. The court refused to strike the expert’s opinion and 23 declined to employ the full-blown Daubert analysis that Defendants request here: 24 25 26 27 28 1 Remarkably, two of the first three cases cited by Defendants employ this “lower Daubert standard” rather than the high standard Defendants mistakenly seek to assert here. See Dukes v. Wal-Mart Inc., 222 F.R.D. 189 (N.D. Cal. 2004) and McPhail v. First Command Financial Planning, 247 F.R.D. 598 (S.D. Cal. 2007). Defendants’ failure to alert the Court to the appropriate standard is puzzling, at best. PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ 3 “MOTION TO STRIKE” DECLARATION OF MARVIN MILLER, CASE NO. C07 0943 WHA Dallas 246010v1 1 It is clear to the Court that a lower Daubert standard should be employed at this stage of the proceedings. Courts have declined to engage in a Daubert analysis at the class certification stage of an action on the ground that an inquiry into the admissibility of the proposed expert testimony under Daubert would be an inappropriate consideration of the merits of the plaintiff's claims. See In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 132 n. 4 (2d Cir.2001) (noting that a Daubert motion is typically made in connection with a motion for summary judgment, motion in limine, or at trial, rather than in connection with a motion for class certification), petition for cert. filed, *163 --- U.S. ----, ---S.Ct. --- (Apr. 3, 2002); In re Linerboard Antitrust Litigation, 203 F.R.D. 197, 217 n. 13 (E.D. Pa 2001) (“To preclude such evidence at the class certification stage, it must be shown that the opinion is the kind of ‘junk science’ that a Daubert inquiry at this preliminary stage ought to screen.”); In re Polypropylene Carpet Antitrust Litigation, 996 F.Supp. 18, 26 (N.D. Ga. 1997) (postponing Daubert analysis, noting that at class certification stage, the court simply examines whether expert's methodology will comport with basic principles, will have any probative value, and will primarily use evidence that is common to all members of the proposed class). . . At this stage in the proceeding, an expert report should not be excluded merely on the basis that it assumes the substantive allegations of the complaint rather than relying upon actual data that may yet to be discovered. 2 3 4 5 6 7 8 9 10 11 12 Id. at 162-163. 13 The appropriate determination of expert testimony at the class certification stage is only 14 15 “whether the expert evidence is sufficiently probative to be useful in evaluating whether class 16 certification requirements have been met.” Dukes v. Wal-Mart, Inc., 222 F.R.D. 189. 191 (N.D. 17 Cal. 2004). In making this determination, the Court “should only determine whether expert 18 testimony is so fatally flawed as to be inadmissible as a matter of law.” Id. (citing Dean v. 19 Boeing Co., 2003 U.S. Dist. LEXIS 8787 at *33-35 (D. Kansas 2003)). 20 As set forth below, after employing this standard, Mr. Miller’s declaration must survive.2 21 B. The Motion to Strike Should Be Denied As Mr. Miller is Uniquely Qualified to Issue His Opinions Regarding Class Certification 22 1. 23 24 25 Marvin Miller is Uniquely Qualified to Issue His Expert Opinion. Defendants contend that Mr. Miller is not qualified by “knowledge, skill, experience, education or training” to provide expert testimony on either the merits of the case or class certification “based on his experience as head of the baseball union over 25 years ago.” [Motion 26 27 28 2 To the extent Defendants bring a Daubert motion at the appropriate time, Plaintiffs will articulate why Mr. Miller’s testimony meets the higher standard as well. However, such analysis is both unnecessary and premature at this stage of the litigation. PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ 4 “MOTION TO STRIKE” DECLARATION OF MARVIN MILLER, CASE NO. C07 0943 WHA Dallas 246010v1 1 at 2:18-3:11 and fn. 2 (emphasis in original).] Under Defendants’ convenient theory, no 2 individual could offer expert testimony on the issues in this case other than Gene Upshaw, the 3 current head of the NFLPA. But Mr. Upshaw, who has proclaimed on multiple occasions that he 4 does not work for retired players, cannot be the only individual qualified to opine on the merits of 5 this case or the current issue of certification. 6 Mr. Miller is uniquely qualified to offer an opinion in this action as he was Executive 7 Director of the MLBPA for seventeen years and has been ranked fifth on the list of the “100 Most 8 Powerful People in Sports for the 20th Century.” [Miller Decl., ¶¶ 5, 7.] Put simply, Mr. Miller 9 is the quintessential expert on the equal treatment of players by sports unions, and Defendants 10 have done (and can do) nothing to dispute that other than argue that he has not held his position 11 with the MLBPA for some time. Yet, even then, Defendants have cited no authority that his 12 retirement disqualifies him from acting as an expert in this case. As set forth in Paragraphs 2 13 through 10 of his declaration, Mr. Miller certainly has the “knowledge, skill, experience, 14 education, and training” to serve as an expert witness. 15 2. 16 17 Marvin Miller’s Opinion Goes to the Heart of the Commonality and Typicality Requirements of Certification Defendants next argue that even if qualified, Mr. Miller’s testimony “has nothing at all to 18 do with the requirements for class certification” and thus should be stricken. [Motion, 2:10-12.] 19 Defendants are incorrect, as Mr. Miller’s testimony relates directly to two of the four factors for 20 certification: typicality and commonality. 21 Rule 23(a)(2) requires commonality. In the Ninth Circuit, the commonality requirement 22 has been “construed permissively,” and may be satisfied by either “shared legal issues with 23 divergent factual predicates,” or “a common core of salient facts coupled with disparate legal 24 remedies.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1988). Rule 23(a)(3) 25 requires that the named plaintiff’s claims be typical of the class’ claims. This requirement merges 26 with the commonality requirement and tests “whether other members have the same or similar 27 injuries, whether the action is based on conduct that is not unique to the named plaintiffs, and 28 whether other class members have been injured by the same course of conduct.” Hanon v. PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ 5 “MOTION TO STRIKE” DECLARATION OF MARVIN MILLER, CASE NO. C07 0943 WHA Dallas 246010v1 1 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1985) (quoting Schwartz v. Harp, 108 F.R.D. 2 279, 282 (C.D. Cal. 1985). 3 Plaintiffs meet both the commonality and typicality requirements for Adderley’s class 4 because “each member signed a GLA substantially identical to the Adderley GLAs and thus each 5 member was entitled to an Equal Share Royalty . . .” [Motion for Class Certification, 16:18-20.] 6 Plaintiffs meet this requirement as to Parrish’s class because each member paid a fee to join the 7 NFLPA and the NFLPA’s representation of each was disavowed. [Id. at 17:22-25, 18:25-19:4, 8 and 20:15-20.] Mr. Miller’s expert opinion addresses both typicality and commonality.3 Among other 9 10 things, Mr. Miller declares that (1) “all members of a sports union must be treated equally”; (2) 11 “the group licensing program of the MLBPA when I was its Executive Director provided for an 12 equal share royalty to everyone who was invited to participate”; (3) “every player who played for 13 the same period of time during a season shared equally in the proceeds of group licensing, even if 14 a particular player’s image was not used”; and (4) “once the NFLPA invited retired players to 15 participate in its group licensing program alongside active players, it was incumbent upon the 16 NFLPA to treat all participants in the group licensing program equally in terms of opportunities, 17 information, revenues, and any other aspect of group licensing.” [Miller Decl., ¶¶ 8-10.] 18 Because Mr. Miller’s declaration is probative of whether Plaintiffs’ claims are typical and 19 common across all class members, including the named plaintiffs, his expert testimony is 20 appropriate and should not be stricken. 21 3. 22 23 Mr. Miller’s Declaration Does Not Constitute a “Legal Opinion” Nor Does It Address How the Law Should Be Applied Defendants’ last hope of eliminating Mr. Miller’s testimony is to argue that he is 24 somehow issuing a “legal opinion” on “how the law should be applied to the ultimate facts 25 without any expert value added.” [Motion, 3:12-13 and 4:1-4.] In support of this argument, 26 Defendants cite two cases, both involving a determination of whether to strike a declaration at 27 3 28 Expert opinions on commonality are often deemed admissible. For instance, in a case cited by Defendants, Dukes v. Wal-Mart, the Court denied the defendant’s motion to strike declarations of plaintiff’s experts regarding commonality. PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ 6 “MOTION TO STRIKE” DECLARATION OF MARVIN MILLER, CASE NO. C07 0943 WHA Dallas 246010v1 1 summary judgment, not the class certification stage.4 As set forth above, the standard for expert 2 testimony is different with respect to class certification from what it is at summary judgment. As 3 such, neither case is applicable here. 4 Moreover, and despite having no applicable authority for its position, Mr. Miller’s 5 testimony does not involve any legal analysis. Rather, he simply offers his expert opinion based 6 upon his lifetime of working with unions, seventeen years of which were spent with the MLBPA. 7 [Miller Decl., ¶¶ 3-4.] His opinion relates to the equal treatment of players and contains no 8 conclusions of law or explanations of how the law should be applied (i.e. statements that 9 defendants breached their contract with Parrish or statements that California law should apply to 10 this nationwide class). As such, and because this expert evidence is useful in evaluating whether 11 class certification requirements have been met, Mr. Miller’s declaration should stand. 12 III. 13 14 CONCLUSION For the reasons stated above, Plaintiffs respectfully request that the Court deny Defendants’ motion to strike. Respectfully submitted, 15 Dated: April 4, 2008 16 /s/Ronald S. Katz Ronald S. Katz (SBN 085713) Ryan S. Hilbert (SBN 210549) Noel S. Cohen (SBN 219645) MANATT, PHELPS & PHILLIPS, LLP 1001 Page Mill Road, Building 2 Palo Alto, CA 94304-1006 Telephone: (650) 812-1300; Fax:(650) 213-0260 17 18 19 20 21 Attorneys for Plaintiffs 22 Lewis T. LeClair, Esq. Jill Adler, Esq. McKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, TX 75201 Telephone: (214) 978-4984; Fax: (214) 978-4044 23 24 25 26 27 28 4 See Crow Tribe of Indians v. Racicot and Aguilar v. Int’l Lounshoremen’s Union Local No. 10. Defendants’ citations to Brae Asset Funding v. Applied Fin., LLC and ABM Indus. Inc. v. Zurich Am. Ins. Co. for the proposition that Mr. Miller is not qualified to opine at the certification stage are inapplicable for this same reason: both courts strike declarations at summary judgment, where a different legal standard is applied. PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ 7 “MOTION TO STRIKE” DECLARATION OF MARVIN MILLER, CASE NO. C07 0943 WHA Dallas 246010v1