The Eighth Circuit upheld a class settlement over the objections of six of the twenty-three class representatives. The case involved a settlement among the NFL and nearly 25,000 former NFL players over the use of the players’ likenesses and identities, and it provided class members with two benefits: (1) the establishment and $42 million funding of the Common Good Entity, a non-profit organization charged with disbursing the money to charitable organizations or health and welfare organizations for the benefit of class members; and (2) the establishment of the Licensing Agency intended to assist class members with marketing their publicity rights. Marshall et al. v. Nat’l Football League, No. 13-3581 (8th Cir. May 21, 2015).
At the outset, the Court tackled the question of whether the settlement benefits were appropriate given constraints on certain cy pres distributions. The Court emphasized that the Licensing Agency provided class members with a direct benefit, sacking any argument that the settlement only provided monies to the third party Common Good Entity. Moreover, the Court explained that the Common Good Entity was more analogous to a trust rather than an objectionable cy pres fund because the Entity was expressly created for the benefit of the class.
Other issues making the highlight reel include the Court’s assessment of objectors and opt outs. Six of the twenty-three class representatives objected to the settlement, and nearly 10% of the class (or 2,073 class members) opted out. Recognizing that “the fact that a considerable number of the named plaintiffs objected to the settlement suggests it may not have been particularly favorable to what they believed their particular claims were worth,” the Court was reassured that the fact that 90% of class members remained on the settling team indicated that the settlement “was favorable to what most members believed their claims were worth.” The Court explained that the class representatives could have opted out if they felt they had meritorious individual claims, and the Court noted the district court’s deference for the “quiet, absent majority” over “the vocal minority.”