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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA ---------------------------------------------------x Carl Lee Eller, Charles Philip Bednarik, Paul James Krause, Lemuel Joseph Barney, Joseph Michael DeLamielleure, Leonard Edward Moore, William Vernell Wood Sr., Civil Action No: 0:11-cv-02623-SRN-JJG Robert Lewis Lilly, Elvin Lamont Bethea, John Allen Hannah, Thomas Lee Mack, Anthony Ronald Yary, David Wilcox, Leroy Kelly, Jackie Larue Smith, Charles Robert Taylor, Robert Bruce St. Clair, Gino MEMORANDUM OF LAW IN John Marchetti, Melvin Lacy Renfro, SUPPORT OF DEFENDANTS Daniel Oliver Hampton, William Lewis MOTION FOR A PROTECTIVE Shaw, Donald Rogers Maynard, Thomas ORDER TO FILE PLEADINGS Franklin McDonald, Larry Chatmon Little, UNDER SEAL Larry Rayfield Wright, Kyle John Turley, Obafemi Devin Ayanbadejo, and Ryan Albert Collins, individually, and on behalf of all others similarly situated, Plaintiffs, v. National Football League Players Association, Tom Brady, Mike Vrabel and DeMaurice Smith. Defendants.

Willie James Gault, Hugh Edward McElhenney, Robert Standard Brown, Eugene Edward Morris, Conrad Francis Dobler, Clifford Allen Harris, Thomas Henry Nobis, Jr., David Pear, John Hugh Niland, George Anthony Visger, Jeffrey Allen Nixon, Bruce Allan Laird, Burt L. Grossman, Terrance Randolph Metcalf, Harry Edwards Jacobs, Gerald Irons, Frank

Civil Action No: 0:11-cv-03012-SRN-JJG

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Preston LeMaster, Myron Joseph Pottios, and Jerry Dewayne Robinson individually, and on behalf of all others similarly situated, Plaintiffs, v. National Football League Players Association, Tom Brady, Mike Vrabel and DeMaurice Smith. Defendants. ---------------------------------------------------x INTRODUCTION Defendants in the above-captioned cases hereby move for a protective order requiring the parties to file under seal all pleadings or other materials which disclose the confidential settlement discussions that were ordered by this Court and supervised by Chief Magistrate Judge Arthur J. Boylan in Brady v. NFL, Civ. No. 11-cv-639 (SRN/JJG) (Brady) and Eller v. NFL, Civ. No. 11-cv-748 (SRN/JJG) (Eller I). The above-captioned cases challenge various aspects of the Brady and Eller I mediation and settlement and rely upon and we anticipate that Plaintiffs will continue to rely upon various events and discussions which occurred during the confidential settlement process. Defendants contend that Plaintiffs claims should be dismissed under Rules 12(b)(6) and 19, because, among other reasons, it was a court-ordered, and indeed court-supervised, settlement process. Defendants initial brief in support of their motion to dismiss all claims is due this Friday, December 2, 2011.

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In their pleadings in support of their motion to dismiss, Defendants will refer to certain information that the Court ordered to be kept confidential and thus Defendants seek to file those pleadings under seal. Defendants counsel learned yesterday that Plaintiffs will not agree to the filing of any pleadings under seal.1 There have already been instances where Plaintiffs have ignored this Courts earlier confidentiality orders. Thus, Defendants move for a protective order in the hopes of stemming any further disclosure of confidential settlement matters. Defendants ask the Court to rule on this motion for a protective order by Friday, December 2, 2011, to enable Defendants to file their motion papers under seal, or in the alternative, to extend the time in which Defendants initial motion papers must be filed in order to give the Court additional time to rule on this motion.2 BACKGROUND On March 11, 2011, various professional football players brought an action against the NFL and its member teams. See Brady Compl. (Dkt. No. 1). On March 28,

Plaintiffs counsel communicated this position via email on the night of November 29, 2011, but the email was not delivered until yesterday morning, November 30, 2011, at 8:47 a.m., as a result of spam filter issues. See Affidavit of Barbara Podlucky Berens dated November 30, 2011 (Berens Aff.), 2 & Ex. 5 (November 29, 2011 Feinberg email to Berens with screen print showing email was not received until 8:47 a.m. on November 30, 2011). Defendants motion to dismiss is scheduled to be heard on February 15, 2011, so under the applicable rules, Defendants initial papers would not be due until January 4, 2011. The parties, however, agreed to an alternative briefing schedule, and Magistrate Judge Graham issued a briefing schedule order consistent with the parties agreement. Berens Aff. 4.
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2011, a group of former NFL football players filed a Complaint naming the NFL and its member teams as defendants. See Complaint in Eller I (Dkt. No. 1). On April 11, 2011, this Court ordered all parties in Brady and Eller I to participate in mediation. The Court appointed Chief Magistrate Judge Boylan to serve as the mediator and further ruled that the settlement sessions could either be joint (i.e., the Eller I Plaintiffs, the Brady Plaintiffs, and the NFL Defendants) or separate (i.e., just the Brady Plaintiffs and the NFL). See April 11, 2011 Order at 2 in Brady v. NFL and Eller I v. NFL) (Dkt. No. 56) (Berens Aff. Ex. 1). In addition, this Court expressly ordered that all settlement discussions must remain confidential and could not used against any party, for any reason: As required by Local Rule 16.5(c), all confidential dispute resolution communications shall remain confidential. Such communications include any communication made to a neutral during any Alternative Dispute Resolution process which is expressly identified to the neutral as being confidential information which the party does not want communicated to any other person outside the Alternative Dispute Resolution process. L.R. 16.5 (c)(1). Further, the fact of participation in this Court-ordered mediation, and any communications conveyed between the parties in this process, shall not be admitted or used against any party in any other proceeding or forum, for any purpose. See Fed. R. Evid. 408. See id. at 3; see also Chief Magistrate Boylans June 9, 2011 Sealed Order in Brady v. NFL and Eller I v. NFL.3 Thereafter, confidential mediation sessions were conducted under the auspices of Chief Magistrate Judge Boylan. See Berens Aff. 3.

If the Court desires, Defendants counsel will provide a copy of Magistrate Boylans June 9, 2011 Sealed Order.
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On July 4, 2011, during that confidential mediation process, the Eller I Plaintiffs filed a motion for leave to amend their Complaint, together with a proposed Second Amended Complaint (SAC), in which they sought to challenge the ongoing, confidential mediation process and to add as new defendants the National Football League Players Association (NFLPA), DeMaurice Smith, and all of the named Brady Plaintiffs. The Eller I Plaintiffs publicly filed the SAC and their motion for leave to amend (both of which purported to describe in detail the participants in, and the time, place, and substance of some of the confidential, court-ordered mediation sessions). These public filings violated the Courts express order to keep all settlement discussions strictly confidential.4 When responding to the Eller I Plaintiffs motion for leave to amend their Complaint, Defendants requested leave to file under seal their response pleadings, which contained confidential settlement materials. Berens Aff. 6. Magistrate Judge Graham permitted Defendants to file these materials under seal by Order dated August 23, 2011. See August 23, 2011 Court Order in Eller I (Dkt. No. 197) (Berens Aff. Ex. 3). Counsel for Plaintiffs in Eller I (who also serve as counsel for the Plaintiffs in the above-captioned cases) was also quoted in multiple media outlets openly discussing the supposed status and substance of the confidential mediation. See, e.g., NFL owners submit new CBA proposal, ESPN.com (May 16, 2011), http://www.sports.espn.go.com/nfl/ news/story?id=6555558 (disclosing a purported new proposal by NFL owners that [is] not acceptable as is, but its a starting point, Hausfeld said.) (Berens Aff. Ex. 2); Judy Battista, Retirees Say Players Shouldnt Have Negotiated for Them, N.Y. Times, Jul. 31, 2011, at D5, available at http://www.nytimes.com/2011/08/01/sports/football/nfl-retirees-say-players-shouldnthave-negotiated-for-them.html (accusing NFLPA of excluding retired players from the mediation) (Berens Aff. Ex. 2). Those public statements about the confidential mediation process also violated this Courts confidentiality order.
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The confidential mediation sessions culminated in the settlement of the Brady action on July 25, 2011, which was subsequently dismissed with prejudice. On August 23, 2011, Plaintiffs voluntarily dismissed without prejudice the Eller I action. See Notice of Dismissal without Prejudice (Dkt. No. 199) (Berens Aff. Ex. 4). On September 13, 2011, Mr. Eller and various retired players commenced another purported class action, Eller v. NFLPA, Civil Action No. 11-cv-2623 (SRN/JJG) (Eller II), once again challenging various aspects of the court-ordered and court-supervised mediation of the Brady and Eller I cases. On October 13, 2011, various other retired players commenced yet another purported class action, Gault v. NFLPA, Civil Action No. 11-cv-3012 (SRN/JJG) (Gault), which also asserts claims based upon the court-ordered and court-supervised mediation of the Brady and Eller I cases. Defendants are moving to dismiss all claims in both Eller II and Gault, and Defendants initial pleadings in support of the motion to dismiss are to be filed on December 2, 2011. Plaintiffs in Gault and Eller II have refused to agree that pleadings discussing the confidential settlement process may be filed under seal,5 even though Plaintiffs were informed that the pleadings related to Defendants motion to dismiss would include information that this Court expressly ordered to be kept confidential in

Plaintiffs counsel responded to Defendants request as follows: We are not willing to stipulate that your brief be filed under seal and would oppose an effort to have it filed under seal. Berens Aff. Ex. 5 (email from Feinberg to Berens).
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Brady and Eller I. Defendants thus move the Court for a protective order to prevent further disclosure of such information. ARGUMENT I. The Court Has Broad Discretion to Issue the Requested Protective Order. The Federal Rules confer broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required. Seattle Times Co. v Rhinehart, 467 U.S. 20, 36 (1984). This is particularly true where the information sought to be protected, as here, is confidential settlement information, protected by court order, Minnesota local rule, and Fed. R. Evid. 408. See April 11, 2011 Order in Brady v. NFL and Eller I v. NFL at 3 (citing both L.R. 16.5(c)(1) and Fed. R. Evid. 408 when ruling that all settlement discussion in Brady and Eller I must be kept in strict confidence and not used against any part for any purpose) (Dkt. No. 56) (Berens Aff. Ex. 1); accord U.S. ex rel. Alsaker v. Centercare Health Sys., Inc., No. Civ. 99-106, 2002 WL 1285089, at *2 (D. Minn. June 5, 2002) (granting a motion to strike allegations in complaint which referenced settlement negotiations because [u]nder Rule 408, evidence of conduct or statements made in compromise negotiations is inadmissible to prove liability[;] [a]lthough this is a rule of evidence, courts have routinely granted motions to strike allegations in pleadings that fall within the scope of Rule 408); see also Austin v. Cornell Univ., 891 F. Supp. 740, 750-51 (N.D.N.Y. 1995) (granting motion to strike allegations in complaint referring to confidential settlement discussions), abrogated on other grounds by Walsh v. City of Auburn, 942 F. Supp. 788, 797 n.5 (N.D.N.Y. 1996); Kelly v. L.L. Cool J., 145 F.R.D. 32, 39-40 (S.D.N.Y. 1992) (same).
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Here, there is ample justification for granting Defendants motion for a protective order to keep confidential that same information in both Eller II and Gault. II. The Court Should Give Effect to its Earlier Order and Enter a Protective Order Requiring All Papers Disclosing Confidential Settlement Information from Brady and Eller I to Be Filed Under Seal in Eller II and Gault. This Court has already ruled that all settlement information in Brady and Eller I must remain confidential and may not be used by any party for any other purpose. See April 11, 2011 Order in Brady v. NFL and Eller I v. NFL at 3 (Dkt. No. 56) (Berens Aff. Ex. 1). Yet both the Eller II and Gault Complaints explicitly and directly challenge the confidential mediation process conducted by Chief Magistrate Judge Boylan, and the Complaints in both of those cases purport to disclose various details regarding those mediation sessions.6 Plaintiffs allegations in their Complaints which purport to disclose such confidential settlement information fly in the face of this Courts earlier order mandating that such information be kept confidential. In addition, there have been other instances where Plaintiffs counsel has been quoted making improper disclosures of the details of that confidential settlement process. See supra n.4 (detailing articles demonstrating same).

Indeed, courts have repeatedly held that plaintiffs cannot state claims which are based on settlement negotiations, which are inadmissible under Fed. R. Evid. 408. See, e.g., Philadelphias Church of Our Savior v. Concord Twp., No. Civ.A 03-1766, 2004 WL 1824356, at *4 (E.D. Pa. July 27, 2004) (denying motion for leave to amend a complaint because the proposed additions would be futile as they were based inadmissible settlement discussions).

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Moreover, when asked to stipulate that pleadings which disclose details of the confidential settlement process in Brady and Eller I could be filed under seal, Plaintiffs counsel not only refused to agree but made clear that they would oppose Defendants legitimate efforts to protect as confidential such information. Plaintiffs refusal represents yet another effort to evade this Courts earlier mandate of confidentiality. Given the Courts earlier order, and Plaintiffs violations thereof, Defendants request that the Court enter a protective order both to enforce its earlier prohibition and to protect the ongoing confidentiality of those settlement discussions. Defendants thus ask the Court to enter a protective order requiring: (1) Plaintiffs to comply with this Courts earlier order in Brady and Eller I regarding confidentiality; and (2) the filing under seal of all materials which purport to reveal information concerning those confidential settlement discussions. Dated: December 1, 2011 BERENS & MILLER, P.A. s/Barbara Podlucky Berens Barbara Podlucky Berens, #209788 Justi Rae Miller, #387330 3720 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 349-6171 Facsimile: (612) 349-6416 bberens@berensmiller.com jmiller@berensmiller.com Jeffrey L. Kessler David L. Greenspan DEWEY & LEBOEUF LLP 1301 Avenue of the Americas New York, NY 10019 Telephone: (212) 259-8050
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jkessler@DeweyLeBouef.com Attorneys for Defendants in Eller II and Gault

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