garber v. mlb settlement agreement
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FERNANDA GARBER, MARCLERNER, DEREK RASMUSSEN,ROBERT SILVER, GARRETT TRAUB,and VINCENT BIRBIGLIA, representingthemselves and all others similarly situated
Civil Action No. 12-cv-3704 (SAS
Plaintiffs,
v.
OFFICE OF THE COMMISSIONER OFBASEBALL, et al.,
Defendants.
CLASS ACTION SETTLEMENT AGREEMENT
This Class Action Settlement Agreement (the Agreement) is made and ent
of this 19th day of January 2016, by and among Plaintiffs Marc Lerner, Derek Rasm
Garrett Traub, and Vincent Birbiglia (collectively, Named Plaintiffs), on behalf o
and all other Class Members (collectively, Plaintiffs or Class Members, each a
Member), and Defendants Office of the Commissioner of Baseball, Major League
Properties Inc., as successor by merger to Major League Baseball Enterprises Inc., M
Advanced Media L.P., MLB Advanced Media, Inc., Athletics Investment Group, LL
Baseball Club of Seattle, L.L.L.P., Chicago Cubs Baseball Club, LLC, Chicago Wh
Colorado Rockies Baseball Club, Ltd., The Phillies, Pittsburgh Baseball, Inc., San F
Baseball Associates L L C New York Yankees Partnership Yankees Entertainme
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Sports Pittsburgh), DIRECTV Sports Net Rocky Mountain, LLC d/b/a Root Sports
Mountain (Root Sports Rocky Mountain), and DIRECTV Sports Net Northwest,
Root Sports Northwest (Root Sports Northwest) (collectively, Defendants), each
foregoing Parties acting by and through their respective counsel. By this Agreemen
Court approval, Plaintiffs and Defendants intend to fully and finally compromise, re
resolve, discharge, and settle the Released Claims subject to the terms and condition
this Agreement.
WHEREAS, Plaintiffs have alleged in their Second Amended Class Action C
(CAC) that Defendants engaged in certain conduct in violation of Sections 1 and
Sherman Act, 15 U.S.C. 13;
WHEREAS, the Court certified a class seeking injunctive relief under Feder
Civil Procedure 23(b)(2), but denied certification of a class seeking damages under
of Civil Procedure 23(b)(3);
WHEREAS, Defendants dispute and deny each and every one of the claims
CAC or any prior complaint both as to the facts and the law, deny all liability to Pla
the other Class Members, have not conceded or admitted any liability, and intend to
with a vigorous defense of this Action in the event this Agreement is not approved b
WHEREAS, Defendants, through their counsel, and Plaintiffs, through their
on behalf of themselves and the other Class Members, have engaged in vigorous, ar
negotiations, including participating in private mediation with a retired United State
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WHEREAS, all Parties are entering into this Agreement to settle and resolve
Released Claims; to avoid the uncertainties and risks of trial; and to avoid further ex
inconvenience, and the distraction of burdensome and protracted litigation; and to o
releases, orders, and judgments contemplated by this Agreement so as to put to rest
finally the matters raised by Plaintiffs;
WHEREAS, Plaintiffs and Defendants agree that this Agreement shall not b
construed to be an admission or evidence of any violation of any statute or law or of
or wrongdoing by Defendants or of the truth of any of the claims or allegations in th
any prior complaint, nor any admission or evidence of any shortcomings in the factu
claims and allegations therein;
WHEREAS, Plaintiffs and their counsel agree that this Agreement is fair, re
adequate with respect to the interests of Plaintiffs, and should be approved by the C
to Federal Rule of Civil Procedure 23(e);
NOW, THEREFORE, in consideration of the premises and mutual promises
and warranties contained in this Agreement and other good and valuable considerati
receipt and sufficiency of which the Parties now acknowledge, and intending to be l
the Parties agree as follows:
I. Definitions
1. Action means the above-captioned matter.
2. Authenticate or Authenticated or Authentication means to veri
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any time between May 9, 2008, and the date on which Plaintiffs file a motion for Pr
Approval. The Class includes the Named Plaintiffs Marc Lerner, Derek Rasmussen
Traub, and/or Vincent Birbiglia.
4. Class Counsel means the counsel appointed by the Court to represe
in the Action.
5.
Club means one of the thirty (30) member Clubs of MLB.
6. Comcast means Comcast Corporation and its affiliates, subsidiarie
successors that offer MVPD service. For the avoidance of doubt, Comcast as def
does not include any Regional Sports Networks (RSNs).
7.
Comcast Defendants means Comcast Corporation; Comcast Sports
California, LLC; Comcast SportsNet Chicago, LLC; and Comcast SportsNet Philad
8. Comcast RSNs means Comcast SportsNet California, LLC; Comca
Chicago, LLC; Comcast SportsNet Philadelphia, L.P.; and SportsChannel Pacific A
Comcast SportsNet Bay Area).
9. COLA means the annual Cost of Living Adjustment for a given ye
determined by the United States Social Security Administration.
10.
Court means the United States District Court for the Southern Dist
York.
11. Defendants means the MLB Defendants, Comcast Defendants, DIR
Defendants, and Yankees Entertainment and Sports Network, LLC.
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13. DIRECTV Defendants means DIRECTV, LLC; DIRECTV Sports
LLC; Root Sports Pittsburgh; Root Sports Rocky Mountain; and Root Sports Northw
14. DIRECTV RSNs means Root Sports Northwest, Root Sports Pittsb
Sports Rocky Mountain, and DIRECTV Sports Net Southwest, LLC d/b/a Root Spo
Southwest (Root Sports Southwest).
15.
Effective Date means the date on which either (a) the time to appea
Final Approval Order has expired without an appeal being filed, or (b) the Final Ap
has been affirmed in its entirety by the court of last resort to which such appeal has
and such affirmance is no longer subject to further appeal or review.
16.
Fairness Hearing means the hearing held by the Court at which the
consider evidence and argument for the purposes of determining whether the Settlem
encompassed by this Agreement and its Exhibits should be granted Final Approval,
claims against Defendants should be dismissed with prejudice, and whether a Final
should be entered.
17. Final Approval means issuance of the Final Approval Order.
18. Final Approval Date means the date on which the Court issues the
Approval Order.
19. Final Approval Order means an order pursuant to Rule 23(e) of the
Rules of Civil Procedure finally approving the terms of a settlement with the terms
this Agreement, without any modification or addition to which any Party does not c
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Court of an amount less than that requested by Plaintiffs of any attorneys fees, cost
awards shall not affect whether an order constitutes a Final Approval Order.
20. Final Judgment means entry of a final judgment pursuant to Rule 5
Federal Rules of Civil Procedure that complies with Rule 23(c)(3) of the Federal Ru
Procedure and that dismisses the Action and all claims therein on the merits with pr
all Class Members, except that it shall not bind any Class Member with respect to cl
damages if such Class Member files a timely and valid exclusion that is allowed by
21. HTT means a Home Television Territory as that term is defined in
documents.
22.
IMS or In-Market Streaming means distribution through the Inte
Game Telecasts within a Clubs HTT.
23. In-Market Club means a Club whose HTT includes the subscriber
24. In-Market means within a respective Clubs HTT.
25.
In-Market RSN means an RSN that exhibits games of an In-Marke
that Clubs HTT.
26. Local Game Telecast means a live game telecast produced by or on
the RSN as authorized by a particular Club for distribution within that Clubs HTT.
27. MASN means TCR Sports Broadcasting Holding, LLP.
28. MLB means Major League Baseball.
29. MLB Defendants means the Office of the Commissioner of Baseba
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Colorado Rockies Baseball Club, Ltd.; The Phillies; Pittsburgh Baseball, Inc.; San F
Baseball Associates, L.L.C.; and New York Yankees Partnership.
30. MLB Extra Innings means the consumer product that historically h
offered to MVPD customers enabling them to view, through their MVPD service, L
Telecasts designated as Out-of-Market by MLB and its Clubs.
31.
MLB Extra Innings Package means the MLB Extra Innings offerin
historically has been offered to MVPD customers and includes the Local Game Tele
MLB Clubs, subject to blackout restrictions.
32. MLB Season means an MLB regular season.
33.
MLB.TV means the consumer product that historically has been of
consumers enabling them to view, over the Internet, Local Game Telecasts designat
of-Market by MLB and its Clubs.
34. MLB.TV Package means the MLB.TV offering that has historicall
offered to consumers and includes the Local Game Telecasts of all MLB Clubs, sub
blackout restrictions.
35. MVPD means a multichannel video programming distributor, inclu
limited to Comcast Corporation and certain of its affiliates and DIRECTV.
36. NESN means New England Sports Network Limited Partnership.
37. Notice means the notices of Settlement to Class Members, which a
hereto as Exhibits C and D and described in the Notice Plan.
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40. Out-of-Market Club means a Club whose HTT does not include th
subscribers residence.
41. Parties means the Defendants, the Plaintiffs, or the Class.
42. Release means the provisions releasing the claims, which provision
embodied in SectionIX.
43.
Released Claims means any and all claims released pursuant to Sec
44. Released Parties means the Defendants, all MLB member Clubs th
named as Defendants in the Action, 21st Century Fox and all 21st Century Fox RSN
provided that each separately agrees to be bound by Paragraph 58 below and Paragr
to the same extent as the Comcast RSNs, DIRECTV RSNs, and 21st Century Fox R
NESN, SNY, and SportsNet LA; as well as all of the foregoing entities respective d
indirect past, present and future parents, predecessors-in-interest or title, successors
title, subsidiaries, and other affiliates, and each of their respective executives, office
employees, shareholders, owners, principals, members, managers, agents, attorneys
representatives, and the predecessors, successors, heirs, executors, administrators, a
each of them.
45.
Releasors means each and every Named Plaintiff, the Class, and al
members of the Class.
46. RSN means a Regional Sports Network, including but not limited
Comcast RSN, DIRECTV RSN or 21st Century Fox RSN.
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48. Single-Club Package means an offering to consumers of Single-Cl
Programming enabling them to view Local Game Telecasts of a single Out-of-Mark
49. Single-Club Programming means Local Game Telecasts made ava
Internet or an MVPD that is substantially identical to the programming on MLB.TV
Extra Innings, respectively, that is offered on a disaggregated basis such that consum
purchase the Local Game Telecasts of any one Out-of-Market Club on a season-lon
without purchasing the Local Game Telecasts of another Club.
50. SNY means Sterling Entertainment Enterprises, LLC (t/a SportsNe
York).
51.
SportsNet LA means American Media Productions, LLC.
52. YES means the Yankees Entertainment and Sports Network, LLC.
53. 21st Century Fox means 21st Century Fox, Inc., Fox Sports Net, In
Sports Interactive Media, LLC, and each of their direct and indirect present and futu
affiliates, subsidiaries, and successors that own or control RSNs.
54. 21st Century Fox RSNs means YES; Fox Sports Net Arizona, L.P
Net Detroit, LLC; Fox Sports Net Florida, Inc.; Fox Sports Net St. Louis LLC; Fox
North, LLC; Fox Sports Net Ohio, LLC; SoCal SportsNet LLC; SportSouth Networ
SportSouth Network II, LLC; ARC Holding Ltd.; Sunshine Network, Inc.; Fox Spor
LLC; Fox Sports Net West 2, LLC; and Fastball Sports Productions, LLC.
II. Relief
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as well as the same policies, limitations, and MLB rules as applicable to the then-ex
MLB.TV Package.
b. MLB will set the consumer price of all full-season Internet Si
Packages at $84.99 for the 2016 MLB Season. Thereafter, for the remainder of the
which this Paragraph55 is in effect, MLB may increase the price of Internet Single-
Packages on an annual basis by not more than 3% or that years COLA, whichever
that particular year.
c. Subject to MLBs national telecast contracts and the availabil
feeds, MLB agrees that it will continue to offer MLB.TV in substantially the same p
while this Paragraph55 is in effect.
d. The requirements of this Paragraph55 will terminate as of th
2020 MLB Season. MLB agrees to implement its obligations under this Paragraph
with the 2016 MLB Season.
e.
MLB will give reasonable publicity to the Single-Club Progra
including prominently offering Single-Club Packages as alternatives to MLB.TV at
points of sale.
56.
Television Single-Club Programming
a. During the current and potential future terms of the MLB Ext
distribution agreements with Comcast and DIRECTV, MLB will consent to the sale
Single-Club Programming by Comcast and DIRECTV for each and every Club, in a
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Extra Innings Package and will be subject to existing blackout rules as well as the sa
limitations, and MLB rules as applicable to the then-existing MLB Extra Innings Pa
Neither Comcast nor DIRECTV is obligated to offer for sale to consumers the telev
Club Programming. However, if Comcast or DIRECTV offers a television Single-C
for any individual Club, it must offer a television Single-Club Package for each and
b.
If Comcast or DIRECTV chooses to offer television Single-C
Programming pursuant to paragraph56(a) above, it will set the residential consumer
each television Single-Club Package at no more than 80% of the residential consum
the full-season MLB Extra Innings Package offered by that MVPD.
c.
Nothing in this Agreement shall preclude MLB from offering
Single-Club Programming to any other MVPD that carries MLB Extra Innings.
d. Subject to MLBs national telecast contracts and the availabil
feeds, MLB agrees that it will continue to offer MLB Extra Innings (to the extent M
to offer MVPDs MLB Extra Innings) in substantially the same package form while
is in effect.
e. The requirements of this Paragraph56 will terminate as of th
2020 MLB Season. MLB agrees to implement its obligations under this Paragraph
with the 2016 MLB Season.
57. MLB.TV and MLB Extra Innings Price Relief
a. MLB will provide MLB.TV Packages for the 2016 MLB Sea
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COLA, whichever is greater in that particular year. The requirements of this Paragr
will terminate as of the end of the 2020 MLB Season.
b. Comcast and DIRECTV will provide full-season MLB Extra
Packages for the 2016 and 2017 MLB Seasons to residential customers at a 12.5% d
of their corresponding full-season Extra Innings prices to residential customers for t
MLB Season.
c. No Comcast Defendant or DIRECTV Defendant other than C
DIRECTV has any potential obligations under this Paragraph57. In the event that C
DIRECTV no longer carries MLB Extra Innings, Comcast and DIRECTV, as applic
have no obligations under this Paragraph57.
58. Follow-Your-Team Package
a. MLB will offer MLB.TV subscribers the opportunity to purch
Follow-Your-Team Package, which, subject to the conditions below, will be an en
MLB.TV Package permitting a subscriber to view on an Authenticated basis (as des
Paragraph58(c) below) all Local Game Telecasts produced by the Out-of-Market R
with a single Out-of-Market Club (selected by the subscriber at the time of subscrip
when that selected Out-of-Market Club plays an In-Market Club. Those Local Gam
will be available (through Authentication) to the subscriber in addition to the Local
Telecasts of all other MLB Clubs otherwise available through the traditional MLB.T
which other telecasts would still be subject to blackout restrictions.
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which the fan resides, provided that the In-Market RSN affiliated with the Club with
has given consent for participation in such Follow-Your-Team Package and such su
remains Authenticated. The Comcast RSNs, DIRECTV RSNs and YES (on behalf
having secured and delivered the consent of each of the other 21st Century Fox RSN
agreement with an In-Market Clubs to carry Local Game Telecasts of MLB Club ga
agreed to provide consent for participation in such Follow-Your-Team Package subj
remainder of this Agreement. MLB will endeavor to obtain the consent of other app
RSNs. MLB shall promptly seek SNY Board approval for the terms contained in th
agreement so that SNY would be included in the settlement for the upcoming MLB
any event, MLB will ensure that at least one of SNY, NESN, MASN, and SportsNe
provide such consent by the start of the 2016 MLB Season.
c. Such Follow-Your-Team Package will require Authentication
applicable In-Market RSN and MVPD to ensure that the MLB.TV subscriber is also
television subscriber of the In-Market RSN and is receiving the game telecasts of th
Club that the selected Out-of-Market Club is playing.
d. MLB will endeavor to obtain the approval and cooperation of
such Follow-Your-Team Packages. At a minimum, such Follow-Your-Team Packa
available (through Authentication) to subscribers to Comcast and DIRECTV (each o
MVPDs will cooperate in such authentication), except where it would require the co
RSN that is not one of the Comcast RSNs, DIRECTV RSNs or 21st Century Fox R
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Verizon FiOS. Failure of MLB to ensure that two of these MVPDs make such Follo
Team Packages available will not constitute a breach by any non-MLB Defendant.
will use commercially reasonable efforts to launch FYT as soon as practicable, and
later than during the 2016 MLB Season. If the requirements of this Paragraph are n
implemented by the time of the 2016 MLB All-Star Game by any particular Defend
requirements of Paragraph58 shall not terminate as to that Defendant until the end o
MLB Season, notwithstanding any other provision of this Agreement.
e. MLB will provide such Follow-Your-Team Packages for the
Season at a total price of $119.99.
f.
MLB may offer a Follow-Your-Team upgrade to subscribers
2016 MLB Season to MLB.TV for the difference in price between the two, which m
exceed $10. All eligible 2016 subscribers who purchase MLB.TV before FYT is av
them must be permitted to purchase an FYT upgrade when it is made available in 20
g.
For the remainder of the term for which this Paragraph58 is e
MLB may increase the price of such Follow-Your-Team Packages on an annual bas
more than 3% or that years COLA, whichever is greater in that particular year.
h.
The requirements of this Paragraph58 will terminate as of th
2020 MLB Season, except as provided in Paragraph58(d). MLB agrees to impleme
obligations under this Paragraph58beginning with the 2016 MLB Season.
59. IMS: If, by the start of the 2017 MLB Season, MLB is unable to obt
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Local Game Telecasts of MLB Club games, MLB will be prohibited from implemen
price increases permitted by Paragraphs55(b),57(a), or58(f).
60. Unserved Fan
a. MLB will make available to Unserved Fans (as defined in Pa
below) Local Game Telecasts of In-Market games (other than those involving Club
affiliated with a Comcast RSN, DIRECTV RSN or 21st Century Fox RSN) through
subject to the conditions set forth in this Paragraph.
b. An Unserved Fan means a consumer who is unable to obta
service at his or her residence, with the term MVPD including virtual MVPDs suc
Vue for purposes of this Paragraph.
c. The following process will be used to establish whether, base
location of his or her residence, a person qualifies as an Unserved Fan:
(i) A fan who believes himself or herself to be Uwithin the meaning of60(b) above will submit an online application
made available through MLB;
(ii) If MLB can determine on its own that the applaccess MVPD service, it will so advise the applicant; if MLB cannotforward such application to those MVPDs and RSNs that offer servicthe vicinity of the applicants residence;
(iii) Such MVPDs and RSNs will have 30 days aft
the application to inform MLB that the applicant either is (a) able to MVPD service, in which case MLB will so inform the applicant that not a qualifying Unserved Fan; or (b) not able to obtain MVPD servicase the applicants residence will qualify as an Unserved Fan.
d MLB will offer qualifying Unserved Fans the opportunity to
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Telecasts as described in Paragraph60(a) above, for so long as that person remains
Fan.
e. Class Counsel shall be permitted to review any applications u
Subparagraph 57(c)(i), and documents sufficient to show MLBs compliance with
Subparagraphs 57(c)(ii) and (iii) with respect to such applications, upon 60 days no
provided however, such right shall not be exercised more than once during each cale
through 2020.
f. The requirements of this Paragraph60 will terminate as of th
2020 MLB Season. MLB agrees to implement its obligations under this Paragraph
with the 2016 MLB Season.
III. Application for Approval
61. Within seven calendar days of the date of this Agreement, Plaintiffs
to the Court a motion requesting that the Court enter a Preliminary Approval Order
in the form of Exhibit A hereto. That motion shall request that the Court:
a. preliminarily approve the Settlement;
b. approve the form and content of the Notices attached hereto a
& D, approve the Notice Plan attached hereto as Exhibit B, and direct that the Notic
provided to the Class Members in accordance with the Notice Plan;
c. set the date for a Fairness Hearing; and
d. stay all proceedings in the Action except those proceedings p
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63. Within 10 days of the filing of this Agreement with the Court, Defen
cause notice of the proposed Settlement that meets the requirements of the Class Ac
Act (CAFA), 28 U.S.C. 1715, to be served on the appropriate federal and state o
Defendants shall file with the Court a certification stating the date(s) on which the C
were sent.
64.
At least 14 days before the Fairness Hearing, Plaintiffs shall timely s
motion for final approval of the Settlement to the Court, along with a proposed Fina
Order substantially in the form of Exhibit E hereto. The proposed Final Approval O
direct entry of a judgment that complies with Federal Rule of Civil Procedure 23(c)
proposed Final Approval Order shall include provisions pursuant to which the Cour
a. approves finally the Settlement and its terms as being a fair, r
and adequate settlement as to the Class within the meaning of Rule 23 of the Federa
Civil Procedure and directing its consummation according to its terms;
b.
provides that the Action and all claims against Defendants ar
with prejudice and directs the Clerk of the Court to enter Final Judgment dismissing
with prejudice, and, except as provided for in this Agreement, without costs;
c.
reserves exclusive jurisdiction over the Settlement and this A
including the administration and consummation of the Settlement; and
d. lists all Class Members who have timely elected to exclude th
from the release provisions and excludes such Class Members from a Final Judgmen
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appeal from entry of the Final Judgment or the Final Approval Order other than an a
Plaintiffs of fees, costs, or service awards, subject to Paragraph 72.
IV. Applicability Before Effective Date
66. Except as otherwise provided in Paragraphs55,56,58,60 and 71, no
Defendants shall have any obligations under Section II of this Agreement until the E
Date.
67. The membership of the Class as defined in Paragraph 3 shall not cha
a result of any delay in implementation.
68. If the Court decides not to grant Final Approval, or if Final Approval
on appeal, then upon the expiration of time for appealing such decision declining to
reversing the grant of Final Approval, this Agreement shall be null and void.
V. Service Awards
69. The MLB Defendants, the Comcast Defendants, the DIRECTV Defe
YES collectively agree to pay each Named Plaintiff a service award of up to $10,00
interest as described in Paragraph 71), subject to the determination and approval of
the Court awards amounts less than those requested by Plaintiffs in this Action, all P
remain bound by their respective obligations described in all other paragraphs in thi
VI.
Attorneys Fees and Costs
70. Subject to Court approval, the Defendants agree to pay Class Counse
$16,500,000 in combined attorneys fees and costs in this Action. Any award shall
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71. Within 10 days of the Final Approval Date, the MLB Defendants, the
Defendants, and the DIRECTV Defendants shall cause a sum in the amount of any s
awards, attorneys fees, and costs awarded by the Court to be transferred to an inter
bank or investment account agreed to by the Parties. Class Counsel shall provide th
Defendants, the Comcast Defendants, and the DIRECTV Defendants any required t
accounting documents prior to the Final Approval Date to facilitate the payment det
Paragraph. The obligations of the MLB Defendants, the Comcast Defendants, and t
DIRECTV Defendants with respect to payment of service awards, attorneys fees, a
be complete upon payment into the bank or investment account. Class Counsel sha
distribute any such funds until the Effective Date. If the Settlement does not receiv
Approval or the Agreement is voided, Class Counsel shall cause all funds and any a
interest to be transferred back to Defendants within 10 days of the exhaustion of app
voiding of the Agreement, respectively. In the event that any court disallows paym
portion of service awards, attorneys fees, and costs deposited into the agreed-upon
investment account prior to the Effective Date, Class Counsel shall promptly and in
than 10 business days return all disallowed funds to the MLB Defendants, the Comc
Defendants, and the DIRECTV Defendants, but shall be bound in all other respects
obligations in this Agreement.
72. In the event there is no appeal of the Final Order by any objector and
seek solely to appeal the district court's determination of fees, costs or service award
g
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VII. Certification
73. Within 180 days of the Effective Date, the Comcast Defendants, DIR
Defendants, and MLB Defendants will each provide a declaration to the Court certi
compliance with their obligations under the terms of the Agreement. Certification o
requirements under the Notice Plan is provided for separately in the Notice Plan.
VIII.
Class Notice
74. Upon entry of a Preliminary Approval Order, the MLB Defendants, t
Defendants, and the DIRECTV Defendants shall disseminate Notice substantially in
Exhibits C & D hereto, as specified in the Notice Plan.
75.
Not later than seven days prior to the Fairness Hearing, the MLB De
Comcast Defendants, and the DIRECTV Defendants shall each provide a declaratio
Court certifying their respective compliance with the Notice Plan.
76. The MLB Defendants, the Comcast Defendants, and the DIRECTV D
shall pay the costs of distributing the Notice provided for in this Section VIII.
IX. Release
77. As consideration for the relief included in this Agreement, upon the E
Date, and except as to such rights or claims as may be created by this Agreement, R
hereby voluntarily and knowingly agree to fully, finally, and unconditionally release
discharge Released Parties from any and all claims, demands, actions, suits, and cau
relating to the conduct alleged in the Action that have been brought or could have b
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limiting the release of unknown claims, including without limitation, Cal. Civ. Code
1542.
78. As further consideration for the relief included in this Agreement, up
Effective Date, and except as to such rights or claims as may be created by this Agr
Releasors discharge Released Parties from any and all claims based on Defendants
adopted pursuant to Section II of this Agreement, for the period from implementatio
Agreement through the sunset dates set forth in this Agreement.
79. The Parties intend that the Agreement shall be binding on all Releaso
Released Parties who do not timely and validly request exclusion from the release o
claims. This Agreement shall constitute, and may be pleaded as, a complete and tot
any Released Claims if pursued in the Action or raised in any other action.
80. All Class Members who do not timely and validly exclude themselve
release provided for in this Agreement will be permanently barred from filing, comm
prosecuting, intervening in, participating in as Class Members or otherwise, or recei
benefits or other relief from any other lawsuit in any state, territorial or federal cour
arbitration or administrative or regulatory or other proceeding in any jurisdiction to
that such proceeding asserts any of the Released Claims.
81.
This Agreement does not settle or compromise any claims by Named
the Class Members against any person or entity other than the Released Parties, nor
release any claims other than the Released Claims. All rights of any Class Member
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82. Defendants and Plaintiffs, on behalf of themselves and the other Clas
hereby expressly agree that all provisions of this Section IX together and separately
essential and material terms of this Agreement.
X. Request for Exclusion
83. Each Class Member who does not file a timely written request for ex
the Release in accordance with the procedures set forth in the Notice shall be bound
Effective Date by all terms of this Agreement, including the Release set out in Secti
and by all proceedings, orders, and judgments in this Action.
84. No Party to this Agreement will make any effort, directly or through
to influence any individual or entity to request exclusion from the Class.
XI. Use of this Agreement
85. Neither this Agreement, nor any of its terms, nor any conduct or stat
negotiation, discussion, or implementation of this Agreement, nor any orders by the
implementing this Agreement, are or shall be considered a concession or admission
wrongdoing or liability, or lack thereof, by any Party hereto. No Party shall cite to
use or construe this Agreement, any conduct or statements in negotiation or implem
this Agreement, or any orders by the Court implementing this Agreement as an adm
fault, omission, liability, or wrongdoing, or lack thereof on the part of any Party her
Notwithstanding the foregoing, this Agreement may be used or offered in evidence
enforce the terms of this Agreement, or filed in any action in support of any defense
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86. Neither this Agreement nor any of the terms of this Agreement, nor a
or statements in negotiation, discussion, or implementation of this Agreement, nor a
the Court implementing this Agreement, nor any conduct required by this Agreemen
the fact that any Defendant is or is not offering Single-Club Programming), may be
admitted in evidence by the Parties in the Action in the event the Effective Date doe
XII.
No Appeal
87. No Party shall seek to appeal any order in this Action other than orde
this Agreement.
XIII. Miscellaneous Provisions
88.
This Agreement, including the Exhibits, constitutes the entire agreem
Plaintiffs and Defendants pertaining to the Settlement of the Action and supersedes
prior and contemporaneous undertakings of the Parties in connection therewith. Th
is an integrated agreement. This Agreement may be modified or amended only by a
executed by Class Counsel and Defendants and approved by the Court.
89. The Court shall retain exclusive jurisdiction over all matters relating
implementation and enforcement of this Agreement.
90. All terms of this Agreement shall be governed by and interpreted acc
substantive laws of New York without regard to its choice of law or conflict of law
91. The headings used in this Agreement are for the purposes of conveni
not constitute part of the Agreement, and no heading shall be used to help construe t
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93. Nothing expressed or implied in this Agreement is intended to or sha
construed to confer upon or give any person or entity other than Named Plaintiffs, th
Members, and Defendants any right or remedy under or by reason of this Agreemen
94. This Agreement shall be binding upon, and inure to the benefit of, th
and assigns of Named Plaintiffs, the Class Members, and Defendants.
95.
This Agreement will not be considered binding until executed by atto
authority to bind all Parties. Each of the undersigned attorneys represents that he or
authorized to enter into the terms and conditions of, and to execute, this Agreement
behalf of his or her respective client(s).
96.
No Party may take any action that is designed to hinder or delay appr
implementation of any provision of this Agreement.
97. This Agreement may be executed in counterparts by counsel for the P
facsimile or electronic image of a signature shall be deemed an original signature fo
executing this Agreement. Each executed counterpart shall be deemed an original,
executed counterparts shall constitute together one in the same instrument, and will
upon execution by all Parties.
98.
This Agreement shall be limited to products sold to residential consu
United States. MLBs commercial activities relating to MLB.TV and Extra Innings
United States shall be excluded.
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ESTW ITNESS W HER EOF , the Parties hereto, through their fully authorized repres
have agreed to this Agreement as of the date first herein written above.
By:
L NGER GROGAN DIVER, P.C.
Date:
For All Plaintiffs
By:
DAVIS POLK W RDWE
Date:
For Defendants Com cast Corp
Com cast SportsNet California
SportsNet Chicago LLC Com
Philadelphia L.P.
By:
KIRKLAND ELLIS LLP
Date:
For Defendants
DIRECTV
LLC DIRECTV
Sports Networks LLC DIREC TV Sports Net
Pittsburgh LLC d/b/a Root Sports Pittsburgh
DIRECTV Sports Net Rocky Mountain LLC
d/b/a Root Sports Rocky M ountain and
DIREC TV Sports Net Northw est LLC d/b/a
Root Sports Northwest
PAUL, W SS, RjfrOND, WH
GARRISON LLP
Date:
For Defendants Office of the C
Baseball
Major L eague B aseb
Inc. as successor by merger to
Enterprises Inc. MLB Advanc
MLB Advanced Media Inc. A
Investment Group LLC the Ba
Seattle L.L.L.P. Chicago Cub
LLC Chicago White Sox Ltd.
Rockies Baseball
Club
Ltd.
T
Pittsburgh
Baseball
Inc. and
Baseball Associates
L.L.C.
By:
BOIES, SCHILLER FLEXNER LLP
Date:
By:
WILLIAMS CONNOLLY L
Date:
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