Cancel the Game in One State, Face a Class Action in Another

Pro Football Hame of Fame Moves to Dismiss Class Action Brought Over Cancelled Preseason Opener

Photo Credit: https://www.flickr.com/photos/edrost88/
Photo Credit: https://www.flickr.com/photos/edrost88/

*Michael Ford

September 26, 2016

Each year the NFL returns to its birthplace and officially kicks off the preseason with an exhibition game at the Football Hall of Fame in Canton, Ohio. [1]  This year the NFL and the Hall of Fame together decided to cancel the August 7 game due to concerns over player safety, but they have consequently found themselves confronting a class action lawsuit brought on behalf of attendees in the Central District of California. [2]

While the sold out game never started, many unwitting fans nonetheless entered the stadium, only to learn of the cancellation just before scheduled kickoff.[3]  Facing a breach of contract action with purported damages in the millions, the NFL and the Hall of Fame recently moved the Court to dismiss the case altogether for lack of personal jurisdiction and venue.[4]

Class Action Complaint Seeking More Than Just a Refund and the Motion to Dismiss it

In the August 23, 2016 complaint, plaintiff alleged that both the NFL and Hall of Fame breached their contractual duties to ticketholders by failing to assure the field would be ready for play, and consequently caused the 22,000 would-be spectators to sustain damages derived from ticket purchases, travel expenses, lodging, and time spent away from work.[5]  Complicating matters further, the plaintiff alleged that the damages of those would-be spectators were exacerbated because many purchased concessions and souvenirs after the NFL and Hall of Fame allowed fans to enter the stadium for a game they knew would not be played, and furthermore failed to then inform those fans of the cancellation until the penultimate moment before kickoff.[6]

On September 9, 2016, the Hall of Fame filed a motion to dismiss the plaintiff’s Nationwide Class Action Complaint for Breach of Contract due to lack of personal jurisdiction and venue.[7]  The Hall of Fame alternatively asked the Court to transfer the action to the Northern District of Ohio, Eastern Division, where Canton is located and where a nearly identical action was previously filed and subsequently dismissed by Michael Avenatti, who happens to be the same attorney who filed the complaint in the Central District of California.[8]

Casting doubt on the Central District of California’s personal jurisdiction over it, the Hall of Fame argued that it does not have minimum contacts with the state of California because it never targeted California such that it purposefully availed itself of the rights and privileges of conducting business therein.[9]  With regard to venue, the Hall of Fame maintained California is not sufficiently connected to the conflict at issue because Californians purchased a mere 1% of the tickets, whereas Ohioans purchased 57%, all of the sales took place in Ohio, not California, and ultimately, that is where the game itself also would have taken place.[10]

In the alternative, the Hall of Fame implored to the Court to transfer the class action suit to the Northern District of Ohio, because personal jurisdiction and venue would be satisfied there due to the aforementioned reasons, thus making it the appropriate nexus for any potential litigation. [11]  Indeed, they purportedly already were satisfied in the previously dismissed class action complaint filed in the Northern District of Ohio.[12]

Evaluating the Hall of Fame’s Motion to Dismiss, Prospects for Settlement, and the Potential Pitfalls for Certification

The Hall of Fame appears to have a compelling argument to dismiss the class action complaint. The Plaintiff may attempt to counter the personal jurisdiction argument by noting that the tickets were sold over the internet, perhaps highlighting potential advertisements and other forms of targeting the forum, to thus establish that the Hall of Fame therefore targeted California with those sales and advertisements, and therefore had minimum contacts with California.[13]  It is worth noting that the NFL, which did not join the Hall of Fame in its motion, could not likely make this same argument, particularly because it just relocated a team into the Central District of California this year.[14]

Likewise, the Court could reason venue in the Central District of California is improper because a “substantial part of the events or omissions giving rise to the claim” did not in fact occur in California but instead in Ohio, where a majority of the plaintiffs reside, the Hall of Fame conducted its sales, and the game was supposed to be played.[15] Plaintiff will likely need to craft an argument that the Hall of Fame’s conduct in selling the tickets in California represented a substantial part of the breach of contract claims but will likely only be able to rely on the apparently minimal amount of purchases in California.[16]

Still, even if the Court determines it need not dismiss, it could nonetheless accept the Hall of Fame’s alternative argument and transfer to the Northern District of Ohio.[17] Because Plaintiff’s counsel Mr. Avenatti previously filed and dismissed a nearly identical action in the Northern District of Ohio, transfer there would seem natural, and would make Plaintiff’s efforts to oppose that transfer difficult.[18]

However, the Hall of Fame and the NFL gave signs that they are not necessarily going to fight this case through trial because they are actively offering to settle with putative class members.[19]  Additionally, Plaintiff’s counsel has publicly waived his fee and has already proposed settlement for $450 per plaintiff, an offer the NFL did not accept.[20]

Furthermore, StubHub has apparently refunded all sales of Hall of Fame game tickets, making it hazy exactly how many spectators would qualify for the NFL’s current settlement offer or what sort of distinct subclasses might be needed upon certification.[21]  Assuming that the case moves forward toward class certification either in California or Ohio, predominance might prove fatal.[22]  As the complaint is currently drafted, reliance by each attendee might have to be proven.[23]  Therefore, seeking compensation for the purchases of concessions and souvenirs made in reliance on the NFL and Hall of Fame’s representations could lead to individual issues dwarfing the common ones, thus precluding class certification.[24]

Conclusion

With the regular season now underway and all parties openly amenable to settlement, this motion may be moot before it is even decided. [25]  Nonetheless, the motion sheds light on an interesting jurisdictional dispute and a sneak peek at what could be an even more interesting battle for class certification.

________________________________________________________________________________________________

* Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2018, Villanova University Charles Widger School of Law

[1] See History of the Pro Football Hall of Fame, Pro Football Hall of Fame http://www.profootballhof.com/visit/hall-of-fame-history/ (last visited Sept. 15, 2016) (discussing NFL’s establishment in Canton on September 17, 1920, and how NFL season historically starts with a preseason game in Canton).

[2] See Rob Demovsky & Mike Wells, Field Conditions Force Cancellation of Preseason Hall of Fame Game, ESPN (Aug. 8, 2016, 9:31 AM), http://www.espn.com/nfl/story/_/id/17241245/hall-fame-game-canceled-due-poor-field-conditions-tom-benson-stadium (mentioning NFL Spokesman Brian McCarthy asserting decision to cancel “was made for player safety,” the league and NFL Players Association’s “primary concern”); Katie Delong, 4 Plaintiffs Move to Dismiss Class Action Lawsuit filed After Packers/Colts Hall of Fame Game Canceled, Fox Now (last updated Aug. 23, 2016, 9:40 PM) http://fox6now.com/2016/08/23/4-plaintiffs-move-to-dismiss-class-action-lawsuit-filed-after-packerscolts-hall-of-fame-game-canceled/ (explaining original suit was filed in Northern District of Ohio but was dropped after attorney filed a similar action in the Central District of California).

[3] See Nationwide Class Action Complaint for Breach of Contract at 4, Herrick v. National Football League, No. 16-06324 (C.D. Cal. filed Aug. 23, 2016) (alleging failure to inform fans that game would not be played until its scheduled start time of 8:00 PM arrived).

[4] See Defendant National Football Museum Inc.’s Memorandum of Points and Authorities in Support of Its Motion to Dismiss or, in the Alternative, Transfer Venue at 1, Herrick v. National Football League, No. 16-06324 (C.D. Cal. filed Sept. 9, 2016) (moving the Court to dismiss class action complaint for lack of personal jurisdiction and improper venue or to transfer the matter to the Northern District of Ohio, Eastern Division).

[5] See Nationwide Class Action Complaint for Breach of Contract at 2–5 (alleging sustained significant injuries due to NFL’s mismanagement and delay in disclosing game would not be played).

[6] See id. at 5.

[7] See Defendant National Football Museum Inc.’s Memorandum of Points and Authorities in Support of Its Motion to Dismiss or, in the Alternative, Transfer Venue at 1, (seeking dismissal of plaintiff’s class action complaint).

[8] See id. at 2. (dubbing plaintiff’s conduct as “improper forum shopping.”)

[9] See id. at 4–11 (“Because the HOF is not subject to general and specific jurisdiction in California, the Court must dismiss Mr. Herrick’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(2).”)

[10] See id. at 11–13 (“None of the relevant conduct occurred in the Central District of California – much less a ‘substantial part’ of such activity as required under the venue statute. Venue is therefore improper in this District.”)

[11] See id. at 13–19 (“Here, the myriad connections of this case to the Northern District of Ohio outweigh Plaintiff’s choice of this forum.”)

[12] See id. at 14 (“Third, venue is proper in the Northern District of Ohio, because ‘a substantial part’-indeed, all-of the events and conduct giving rise to Mr. Herrick’s claim occurred within the district.”)

[13] See generally Nationwide Class Action Complaint for Breach of Contract, (making various allegations connecting Hall of Fame’s conduct to California but merely pleading “…Defendants are subject to the Court’s personal jurisdiction in this judicial district”).

[14] See Rams Headed Back to Los Angeles; Chargers Have Option to Join, (Jan. 13, 2016) http://www.espn.com/nfl/story/_/id/14558668/st-louis-rams-relocate-los-angeles (detailing Rams’ move to Los Angeles).

[15] See 28 U.S.C. 1391(b) (specifying requirements of venue in general).

[16] See Defendant National Football Museum Inc.’s Memorandum of Points and Authorities in Support of Its Motion to Dismiss or, in the Alternative, Transfer Venue at 3 (stating only 1% of tickets were purchased by Californians).

[17] See 28 U.S.C. 1404(a) (specifying transfer of venue in the interests of convenience and fairness).

[18] See Nationwide Class Action Complaint for Breach of Contract, Biland v. National Football League, No. 16-02010 (N.D. Ohio filed Aug. 11, 2016) (alleging similar class claims by the same attorney).

[19] See HOF Game Refund, http://www.profootballhof.com/gamerefund/ (indicating that attendees may “Request Reimbursement Plan,” but that there is a pending class action complaint which they will release their rights to participate in if they accept a refund).

[20] See Mike Florio, Hall of Fame Game Settlement Offer Expires (Aug. 19, 2016, 12:33 PM), http://profootballtalk.nbcsports.com/2016/08/19/hall-of-fame-game-settlement-offer-expires/ (noting that Plaintiff’s settlement offer expired).

[21] See Field Conditions Force Cancellation of Preseason Hall of Fame Game, supra note 2 (indicating StubHub will refund ticket purchasers).

[22] See Fed. R. Civ. P. 23(b)(3) (requiring that classes certified under 23(b)(3) have “questions of law or fact common to class members [that] predominate over any questions affecting only individual members”).

[23] See Nationwide Class Action Complaint for Breach of Contract, supra note 3, at 4 (stating that “Defendants allowed and encouraged fans to continue to purchase food, beverages, and souvenirs at the stadium as they waited for a game that would never start”).

[24] See Fed R. Civ. P. 23(b)(3) (requiring predominance of common issues); Herbert B. Newberg et al., Newberg on Class Actions § 4:53 (5th ed. 2016) (categorizing reliance as one of three “biggest hurdles to finding common questions predominate” in a putative class).

[25] See 2016 NFL Kickoff Fan Events in Denver, NFL.com (Aug, 19, 2016, 2:38 PM), http://www.nfl.com/news/story/0ap3000000687554/article/2016-nfl-kickoff-fan-events-in-denver (“On Thursday, September 8 (8:30 p.m. ET on NBC), football is back, as the 2016 NFL season kicks off with the defending Super Bowl champion Denver Broncos hosting the Carolina Panthers at Mile High Stadium.”).