SAN FRANCISCO (CN) - A federal judge settled a squabble over attorneys' fees for counsel representing college athletes in class actions against video game maker Electronic Arts.
U.S. District Judge Claudia Wilken awarded attorneys for a class headed by former Arizona State quarterback Samuel Keller just over$5 million, while attorneys for a class led by former UC Davis basketball star Ed O'Bannon will get $4 million.
The Keller plaintiffs, represented by Hagens Berman Sobol Shapiro in San Francisco were the first to sue EA over the right to get paid for the use of their images and likenesses in sports-themed video games in May 2009.
The O'Bannon plaintiffs sued the NCAA and EA a few months later, claiming that the both conspired to keep college athletes from being paid for their appearances in broadcast games and video games in violation of the Sherman Act.
Both sets of plaintiffs settled with EA for $40 million in May 2014, and the O'Bannon class continued its fight against the NCAA. The Keller class settled with the NCAA for $20 million on the eve of the O'Bannon trial in June 2014.
But now the lead firms are clashing over attorneys' fees, with the Keller lawyers arguing that they should get the bulk of the award because they had to fight EA's anti-SLAPP motion in the Ninth Circuit - which EA lost, leading to the eventual settlement.
"Keller plaintiffs' counsel argues that they should be awarded the majority of the fees from the EA settlement because the Ninth Circuit's opinion in Keller was the catalyst for the settlement against EA," Wilken said in her ruling. "According to Keller plaintiffs' counsel, the potential liability EA and Collegiate Licensing Co. faced based on the right of publicity claims far outweighed the liability they faced based on O'Bannon plaintiffs' claims."
O'Bannon's counsel at Hausfeld LLP argued that they deserve 2/3 of the award because they did most of the discovery work leading up to the settlement.
In her ruling, Wilken recognized that the O'Bannon attorneys put in more hours, but the Keller right of publicity case exposed EA to the greatest liability.
"The value of Keller plaintiffs' California right of publicity claims and the likelihood that EA's strongest defense to Keller plaintiffs' claims would be unavailable to it weigh in favor of a finding that Keller plaintiffs' case made a more significant contribution to the settlement fund than did the O'Bannon plaintiffs," Wilken wrote.
Wilken noted that while U.S. District Magistrate Judge Nathanel Cousins awarded O'Bannon attorneys $45 million in fees in their victory against the NCAA, "there is no guarantee they will be paid," given the NCAA's objections to Cousin's order. The O'Bannon NCAA case is also being held up on appeal with the Ninth Circuit.
"Balancing all of the factors discussed above, the court finds that, if they are unable to recover their fees from the NCAA, O'Bannon plaintiffs' counsel are entitled to half of the fees to be awarded from the EA settlement," Wilken wrote.
"Two million dollars shall be placed in escrow. If the NCAA pays the fee award related to the O'Bannon trial, the $2 million will be paid to Keller plaintiffs' counsel. If the fee award related to the O'Bannon trial is not paid by the NCAA, the $2 million will be paid to O'Bannon plaintiffs' counsel."
Wilken also awarded $694,000 to an individual attorney - Timothy McIlwain, who represented National Football League hall of fame running back Jim Brown against Electronic Arts in 2008 - and applied a similar right-of-publicity theory in a class action led by ex-Rutgers quarterback Ryan Hart.
Hart fired McIlwain in 2013, claiming that his attorney did not inform him of Electronic Arts' settlement offer. McIlwain disputes Hart's version of events.
Wilken took issue with McIlwain's time records, calling them "replete with entries that are not reasonably related to the litigation or settlement of the case," noting that he billed for hours spent researching video games and movies like "Call of Duty" and "Oceans 13," and looking up the biographies of actors Matt Damon, Ellen Barkin, George Clooney, Don Cheadle and Bernie Mack.
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