Former QB fights ex-lawyer to control likeness class action vs EA

By Alison Frankel
October 23, 2013

A class action involving the supposed misappropriation of images of college athletes by the videogame maker Electronic Arts has provoked a thorny question about who truly represents the interests of absent class members. Is it the name plaintiff who filed the case on behalf of everyone who allegedly suffered the same injury as him? Or is it the lawyer who has been acting on the class’s behalf – even if he’s been fired by the name plaintiff?

This sticky wicket comes courtesy of Ryan Hart, who played quarterback for Rutgers between 2002 and 2005. Back in 2009, Hart and his lawyers at the firm then known as McKenna McIlwain filed a class action in state court in New Jersey, asserting that Electronic Arts had violated Hart’s privacy rights when it made use of his image in the NCAA Football videogame series. EA removed the case to federal court in New Jersey, where it argued that it has a First Amendment right to transform the images of college athletes like Hart into virtual players for its videogames. U.S. District Judge Freda Wolfson agreed. She granted summary judgment to EA in September 2011.

Hart and his lawyers appealed to the 3rd Circuit. Last May, a split appellate panel vacated Wolfson’s judgment for EA. The two judges in the majority held that EA had not sufficiently transformed Hart’s image to trigger its First Amendment protection against his privacy rights. The blockbuster ruling, which was followed in July by a 9th Circuit decision that applied similar reasoning to reinstate other class action litigation by college athletes against EA, reopened the prospect of the videogame maker’s enormous potential liability to thousands of former college athletes.

Hart’s lawyers at McKenna McIlwain split up before the 3rd Circuit revived his case. When the as-yet-uncertified class action returned to Judge Wolfson on remand last summer, Tim McIlwain remained as counsel to Hart. Keith McKenna was terminated in July. In August, McIlwain brought in the well-known plaintiffs shop Lanier Law Firm as co-counsel. Soon thereafter, McIlwain and Lanier lawyers traveled to California for mediation with EA and its counsel at Keker & Van Nest.

The end result of that mediation was a proposed global settlement between EA and former student athletes in the Hart case and three other class actions filed on their behalf, one more in New Jersey and two in California. Terms of the settlement were confidential, according to a press release issued on Sept. 26 by the firm leading the California cases, Hagens Berman Sobol Shapiro.

So confidential, in fact, that name plaintiff Hart didn’t know the terms of the deal his own lawyers struck. He didn’t even know they’d settled his case until he read the announcement on The Wall Street Journal’s website. He certainly didn’t approve the settlement before his lawyers agreed to it, Hart said in a declaration filed with Wolfson on Oct. 21. According to the declaration, McIlwain told Hart that he didn’t need to attend the mediation and texted Hart on Sept. 10 and 11 to say there hadn’t been a deal. Hart claimed that he heard nothing else from his counsel until after he discovered the settlement news on the Journal’s website. “Neither McIlwaine nor the Lanier Firm had previously advised me of any settlement offer made by Electronic Arts,” Hart said.

Hart and his wife spent a couple of days in late September trying to get answers from McIlwaine and Lanier lawyers, to little avail. According to his declaration, McIlwaine continued to insist to Hart that he didn’t know the settlement terms, when he wasn’t ducking Hart’s calls. Eugene Egdorf of the Lanier firm generally described the deal to the Harts in a conference call, but refused to supply them with a term sheet.

By Oct. 2, Hart had had enough. He rehired McKenna, a family member and McIlwaine’s onetime partner. McKenna brought in another New Jersey firm, Lum, Drasco & Positan. They demanded that McIlwaine and Lanier turn over to them the Hart case files.

That precipitated the issue now before Wolfson: Who controls the fate of the Hart class action, Hart or his former lawyer?

McIlwaine contends that he, and not Hart, has been acting in the interests of class members. On Oct. 4, McIlwaine asked Wolfson to remove Hart from the case. “Counsel helped reach a potentially historic settlement in principle for a significant amount of money to resolve this putative class action,” he wrote. “Now, because the current lead plaintiff no longer adequately represents the class, and because irreconcilable differences have developed between Hart and counsel, proposed class counsel moves the court to withdraw from representing Ryan Hart and for leave to file a third amended complaint to replace the current proposed lead plaintiff with newly proposed and representative lead plaintiffs who will adequately represent the interests of the proposed putative class.” The lawyer said that Hart had “chosen not to communicate” with his lawyers, but Hart’s father-in-law had “communicated information” to the lawyers suggesting “that Hart’s narrow personal interests now conflict with the absent class members.”

The brief argued that Hart does not have the right to terminate lawyers who have been acting on behalf of the class, “particularly where, as here, such attempted termination comes after proposed class counsel have invested significant sums of time and money on behalf of the entire class to assist in arriving at a historic settlement.” Hart, the brief said, had abdicated his duties as a representative of the class by putting his own interests first. (The Lanier Law Firm was on the brief with McIlwaine but formally withdrew as Hart’s counsel on Oct. 16.)

In their opposition to Hart’s removal, Hart’s current lawyers countered that the former quarterback is the only legitimate representative of the class. The class in this case has not yet been certified, wrote McKenna and Dennis Drasco of Lum Drasco, so Hart’s previous lawyers were never designated class counsel. They represented only him, so he has the authority to terminate them. Moreover, the lawyers ignored their duties to their client when they purported to settle his case without his permission, Hart’s brief said.

“Hart was deprived of his right to provide meaningful input and oversight of the counsel for the putative class during the proposed settlement process,” they wrote. “Hart was also deprived of his right and obligation, as proposed class representative, to determine whether seeking the court’s approval of this settlement was in the best interests of the class as a whole…. Former counsel, seemingly for his own pecuniary benefit, is seeking to wrestle control of the suit away from the named party who has remained actively involved in the case since its inception.”

McKenna told me in a phone interview Wednesday that Hart doesn’t necessarily oppose the settlement his previous lawyers struck, but wants to know the details. “How do you comment on something you don’t know?” he said. The lawyer also said that he looks forward to confronting anyone who submits sworn testimony about Hart’s supposed conflict of interest. (McIlwaine didn’t return my call requesting comment, and Lanier lawyers Egdorf and Mark Lanier didn’t respond to my email.)

Will the Hart mess affect the global EA settlement, which must still receive court approval? Hagens Berman partner Steve Berman said in an email that the California plaintiffs lawyers are trying to figure that out. “We were quite surprised to learn that the lawyers at the Lanier Firm had not received Mr. Hart’s consent,” Berman said. “Doubly so, given all the press statements they made about the case. We might have to rewrite (the) agreement so it excludes Mr. Hart and lets him pursue his individual claims.” EA counsel Robert Van Nest declined to comment via email.

Judge Wolfson has ordered additional briefing by Hart’s new counsel and a response from McIlwaine on Oct. 30.

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