6. Settlement of Flyers Winter Classic Ticket Lawsuit

8/10/2019 6. Settlement of Flyers Winter Classic Ticket Lawsuit

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UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOYCE PHILLIPS, GARY MENGLE, and JOHNBAKLEY, individually and on behalf of all otherssimilarly situated,

Plaintiffs,v.

COMCAST SPECTATOR, L.P.; PHILADELPHIAFLYERS, L.P.; PHILADELPHIA FLYERS. L.L.C.;GLOBAL SPECTRUM, LP; NHL ENTERPRISES,L.P.; JOHN and JANE DOES 1 through 10, inclusive;and ABC CO., CORP., LLC, LLP, LP 1 through 10,inclusive,

Defendants.

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Civil Action No. 3:12-cv-3606-MAS-DEA

NOTICE OF SETTLEMENT OF CLASS ACTION

TO: ALL NATURAL PERSONS OR ENTITIES WHO PURCHASED FULL SEASONTICKET PACKAGES FROM THE PHILADELPHIA FLYERS FOR THE 2011-2012PHILADELPHIA FLYERS NATIONAL HOCKEY LEAGUE SEASON, AND PAID FORSUCH PACKAGES IN FULL, EXCEPT FOR (i) DEFENDANTS SUBSIDIARIES,DIRECTORS, AGENTS, ATTORNEYS, ACCOUNTANTS, CONSULTANTS, ANDEMPLOYEES, AND (ii) THE COURT AND ITS EMPLOYEES (HEREINAFTER, REFERREDTO AS THE SETTLEMENT CLASS, AND MEMBERS THEREOF AS SETTLEMENTCLASS MEMBERS).

PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. THIS NOTICERELATES TO A PROPOSED SETTLEMENT OF THE ABOVE CLASS ACTION. IF YOU AREA SETTLEMENT CLASS MEMBER, THIS NOTICE CONTAINS IMPORTANTINFORMATION AS TO YOUR RIGHTS UNDER THE PROPOSED SETTLEMENT.

THE NOTICE A NSWERS QUESTIONS A ND PROVIDES I NFORMATION ABOUT THE SETTLEMENTAS FOLLOWS :

1. W HY SHOULD I R EAD THIS NOTICE ?2. W HAT IS THIS LAWSUIT ABOUT ?3. WHAT ARE THE TERMS OF THE SETTLEMENT ?4. W HY IS PLAINTIFFS COUNSEL RECOMMENDING THIS SETTLEMENT ?5. W HAT ARE THE ATTORNEYS FEES A ND COSTS ?6. WHAT ARE THE PROCEDURES FOR PARTICIPATING I N THE SETTLEMENT ? 7. WHERE CAN I FIND ADDITIONAL I NFORMATION ?8. NOTICE OF SETTLEMENT HEARING .9. WHAT IF I DO NOT WISH TO PARTICIPATE I N THE SETTLEMENT ?

WHY SHOULD I READ THIS NOTICE?

This notice is given pursuant to a December 13, 2013 Order issued by United States Magistrate JudgeDouglas E. Arpert of the United States District Court for the District of New Jersey (the Court). The purpose ofthis notice is to inform you of the Settlement of a class action (the Action) concerning tickets to the January 2,2012 hockey game that was known as the Winter Classic. The Settlement is subject to final approval by the


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Court, and will, if finally approved, result in (a) each Settlement Class Member being eligible to receive, for eachseason ticket that he, she or it purchased, either (i) a cash substitute voucher for food or drink at events at theWells Fargo Center, with a value of $45.00, or (ii) a voucher for entitlement to a fan entertainment experiencewith an estimated value of $75.00, and (b) dismissal of the Action and release of Released Claims against theReleased Parties (as such terms are defined in the Settlement Agreement on file with the Court).

This notice describes the composition of the Settlement Class and the terms of the Settlement; how theSettlement may affect your rights; and what steps you may take in relation to them. This notice also providesimportant information concerning benefits to be provided by the Philadelphia Flyers pursuant to the SettlementAgreement. This notice is not intended to be, and should not be construed as, an expression of any opinion by theCourt with respect to the merits of the allegations or the merits of the claims or defenses by any party to theAction.

WHAT IS THIS LAWSUIT ABOUT?

Plaintiffs claims in this case are alleged to arise out of Defendants alleged failure to provide Flyers fullseason ticket holders with tickets to the Winter Classic as part of their 2011-12 season ticket packages. Plaintiffscontend that tickets to the January 2, 2012 regular season hockey game between the Flyers and New YorkRangers were purchased by the Flyers full season ticket holders as part of their 44 ticket full season ticket

packages before the Defendants announced that the January 2, 2012 game would become the Winter Classic gameand that the full season ticket holders should have received the January 2, 2012 game ticket as part of their seasonticket packages. Instead, Plaintiffs contend, the full season ticket packages omitted that ticket to that game andrefunded the full season ticket holders one forty-fourth of the season ticket package purchase price. Plaintiffsfurther allege that the full season ticket holders were then offered the opportunity to separately purchase a ticket tothe January 2, 2012 game at a higher price and only on the condition that they also buy tickets to two non-NHLevents a December 31, 2011 game between former Flyers and New York Rangers Players, and a January 6,2012 game between the Adirondack Phantoms and the Hershey Bears. Plaintiffs complaint alleges claimsagainst Comcast Spectacor, L.P., Philadelphia Flyers, L.P., Philadelphia Flyers, L.L.C. and Global Spectrum, L.P.(collectively, the Flyers Defendants), for breach of contract, breach of the implied covenant of good faith andfair dealing, unjust enrichment, and alleged violations of the Pennsylvania Unfair Trade Practices and ConsumerProtection Law (the UTPCPL) and the New Jersey Consumer Fraud Act (the NJCFA) and against NHLEnterprises, L.P. (NHLE) for intentional interference with contract, inducing breach of contract, unjustenrichment, and alleged violations of the UTPCPL and NJCFA.

Defendants contend that Plaintiffs claims have no merit, and Defendants deny any wrongdoing orliability in connection with the Action. Contrary to the allegations in the Action, Defendants contend that theyreceived overwhelmingly positive feedback from many season ticket holders and other fans about the WinterClassic, and the manner in which tickets were packaged with tickets to other games. Defendants further contendthat fans who purchased the Winter Classic ticket packages, but who did not wish to attend certain of the WinterClassic events, were generally able to sell their tickets to such events on the secondary market for prices that oftenwere substantially in excess of the amounts charged by the Flyers for the tickets. Nevertheless, Defendants haveagreed to enter into the Settlement Agreement because it will result in the avoidance of further expense andinconvenience and, significantly, because it will provide a substantial benefit to all Flyers full season ticketholders, the teams most loyal group of customers. Defendants decision to enter into the Settlement Agreementis not and shall not be deemed or construed in any way as an admission of liability, wrongdoing or fault.

WHAT ARE THE TERMS OF THE SETTLEMENT?

Under the proposed Settlement, the Philadelphia Flyers will provide Settlement Class Members with theoption to receive for each season ticket that he, she or it purchased, either (i) a cash substitute Orange Voucher forfood or drink at events at the Wells Fargo Center, with a value of $45.00, or (ii) a Black Voucher for entitlementto a fan entertainment experience with an estimated value of $75.00. In exchange, the Action will be dismissed,and Plaintiffs and the Settlement Class will release their Released Claims against the Released Parties. (Excludedfrom this relief is any person or entity who has already obtained judgment on a claim that is covered by thissettlement or by the Release in the Parties Settlement Agreement.)


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In addition, subject to approval of the Court, Defendants agree not to object to the Courts award ofattorneys fees and the reimbursement of costs and expenses to Plaintiffs Counsel, and incentive fees to the

Named Plaintiffs, in a total amount not to exceed $500,000. The incentive fee application will be $2,500 for eachof the three Named Plaintiffs and will also be deducted from any award of attorneys fees. Defendants have alsoagreed to pay the reasonable costs for notice and administration of the Settlement. Defendants will make these

payments without reducing or limiting in any way the consideration they have agreed to provide to SettlementClass Members. Any remaining funds will be donated to Comcast Spectacor Foundation and/or the Ed Snider

Youth Hockey Foundation under Court supervision.WHY IS PLAINTIFFS COUNSEL RECOMMENDING THIS SETTLEMENT?

This Settlement results in a favorable recovery for the Settlement Class Members in light of the potentialremedies available in the Action. Based on their evaluation of this and other factors, as more fully described

below, Plaintiffs Counsel believe that the proposed Settlement is fair, reasonable and adequate and in the bestinterests of the Settlement Class and they strongly recommend that it be approved.

Plaintiffs Counsel has actively litigated this Action since it was filed in May 2012. They conducted anextensive investigation and discovery into the claims and the underlying events and transactions alleged in theAction. Document discovery has been obtained from Defendants and the Named Plaintiffs have produced recordsrelating to their season ticket accounts and communications with Defendants. Defendants have also responded tocomprehensive written discovery and depositions including, but not limited to, discovery specifically focused onthe breach of contract claim and alleged violations of the UTPCPL and NJCFA. Plaintiffs Counsel has takendepositions of defense witnesses, including persons most knowledgeable about the Winter Classic, and had expertreports prepared concerning the losses Plaintiffs allege were experienced by Settlement Class Members. Inaddition, the parties have researched, analyzed, briefed and argued two motions to dismiss and negotiated the

production of documents from the NHLE prior to that entity being joined as a defendant in the Action.

In the judgment of Plaintiffs Counsel following lengthy and hard-fought litigation, there was substantialrisk if the case proceeded to class certification and, ultimately, to trial. First, no ruling has been made on the

pending motions to dismiss. The Court expressed questions about the factual and legal bases relating to some ofPlaintiffs claims during the hearing on those motions, several of which involved unresolved and even novelquestions of fact and law. If the Court resolved those questions against Plaintiffs on the pending motions todismiss, there is the possibility that there would have been no recovery for any Settlement Class Member. On theother hand, even if the Court found in favor of the Plaintiffs on Defendants motions to dismiss, there remained asubstantial risk associated with class certification, an ultimate trial and the ability to preserve a favorable ruling onappeal. In order to obtain class certification of a multi-state class and to succeed at trial, Plaintiffs Counselwould have had to convince the Court that (i) the purported class satisfied all statutory requirements for classtreatment and (ii) tickets in the full season ticket packages at issue did not constitute revocable licenses thatDefendants had the right to revoke. Plaintiffs Counsel also considered the unforeseen risks and delays that occurin complex litigation. There were many unresolved legal and factual issues and uncertainties that jeopardizedPlaintiffs ability to obtain a favorable judgment and preserve it on appeal. Plaintiffs had the burden of proof toestablish liability and the amount of damages; and Defendants had asserted many defenses to Plaintiffs claims.Even if a judgment in excess of the proposed Settlement had been obtained, there was a substantial risk it wouldhave been appealed and reversed or that the amount of damages would have been significantly reduced following

judgment or on appeal. Absent the proposed Settlement, the amount and likelihood of recovery by the SettlementClass was uncertain and there would have been considerable delay before any recovery.

As noted above, the Action was settled with the assistance of a United States Magistrate Judge who iswell-known and respected in the legal community. There were also lengthy negotiations between the parties overa period of months. In reaching the proposed Settlement, Plaintiffs Counsel has taken into account factsexchanged during the confidential settlement negotiations as well as the evaluation and recommendations of theUnited States Magistrate Judge.


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WHAT ARE THE ATTORNEYS FEES AND COSTS?

As noted above, as part of the settlement approval process, Plaintiffs Counsel will apply to the Courtunder Federal Rule of Civil Procedure 23 for an award of attorneys fees, cost and expenses, and incentive feesfor the Named Plaintiffs (as described above), in a total amount not to exceed five hundred thousand dollars($500,000). This is considerably less than the total fees, expenses and costs thus far incurred by PlaintiffsCounsel to litigate the Action. Defendants have agreed not to oppose this application and to pay attorneys fees,costs and expenses, and incentive fees as awarded by the Court in a total amount not to exceed five hundredthousand dollars ($500,000). This payment will not reduce or limit the recovery that Defendants have agreed to

provide to the Settlement Class.

WHAT ARE THE PROCEDURES FOR PARTICIPATING IN THE SETTLEMENT?

If you fall within the definition of a Settlement Class Member, you do not need to do anything to remain aSettlement Class Member. If you remain a Settlement Class Member, Plaintiffs Counsel will represent yourrights in connection with the Settlement. If you wish, you may enter a legal appearance individually or throughyour own counsel, at your own expense. Settlement Class Members who do not request to be excluded from theSettlement will be bound by any judgment entered and releases given in the Action pursuant to the SettlementAgreement.

If you elect to remain a Settlement Class Member, you do not need to do anything further.

WHERE CAN I FIND ADDITIONAL INFORMATION?

Further information about the litigation and the proposed Settlement may be obtained by contactingPlaintiffs Counsel: (1) Derek Howard, Minami Tamaki, LLP, 360 Post Street, 8th Floor, San Francisco, CA94108, telephone (415) 788-9000 or e-mail to [email protected] or (2) Evan Barenbaum, Stern &Eisenberg, 1581 Main Street, Suite 200, Warrington, PA 18976, telephone (215) 572-8111 or e-mail [email protected].


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NOTICE OF SETTLEMENT HEARING

A final settlement hearing will be held on March 24, 2014, at 10:00 a.m., before the Honorable DouglasE. Arpert, U.S.M.J., at the United States District Court, Clarkson S. Fisher Federal Building & U.S. Courthouse,Trenton, New Jersey (the Final Fairness Hearing). The purpose of the Final Fairness Hearing will be todetermine, among other things: (1) whether the terms of the proposed Settlement are fair, just, reasonable andadequate and in the best interests of the Settlement Class and should be approved by the Court; (2) whether theapplication of Plaintiffs Counsel for an award of attorneys fees, costs and expenses, should be approved, and theamount that should be awarded; (3) whether the Named Plaintiffs application for an award of incentive feesshould be approved; and (4) whether the Action should be dismissed on the merits and with prejudice as set forthin the Settlement Agreement filed with the Court.

Settlement Class Members may appear and be heard at the Final Fairness Hearing, either on their own orthrough counsel hired at their own expense, subject to the conditions set forth below. The Final Fairness Hearingshall be the only opportunity for any Settlement Class Member who objects to the proposed Settlement to appearand be heard. Any Settlement Class Member may appear at the Final Fairness Hearing to show cause why the

proposed Settlement should not be approved, the Action should not be dismissed with prejudice against theReleased Parties, or why the fee application or the incentive awards should not be approved. Any objection to theSettlement shall be filed with the Court, with copies delivered to Plaintiffs counsel, counsel for the FlyersDefendants and counsel for NHLE, by the deadline below. Each objection must contain a caption or title that

identifies it as Objection to Class Settlement in Phillips et. al. v. Comcast Spectacor et al. and shall containinformation sufficient to identify and contact the objecting Settlement Class Member. The objection also shallcontain a clear and concise statement of the Settlement Class Members objection, documents sufficient toestablish the basis for the standing of the objector ( i.e. verification under oath as to objectors purchase of a 2011-12 Flyers full season ticket package), the facts supporting the objection, and the legal grounds upon which theobjection is based. Plaintiffs and Defendants shall each have a right to respond to any objections prior to the FinalFairness Hearing. Any Settlement Class Member who has not objected in writing to the Settlement as prescribedabove by February 20, 2014, shall be bound by the terms of the Settlement Agreement upon final approval of theSettlement.

Addresses to be used for any such objection or opposition are:

FOR THE COURT

Clerk of the CourtUnited States District CourtDistrict of New JerseyClarkson S. Fisher Federal Bldg. & U.S.Courthouse402 East State StreetTrenton, NJ 08608

FOR PLAINTIFFS COUNSEL

Derek G. HowardMinami Tamaki, LLP360 Post Street, 8th FloorSan Francisco, CA 94108

FOR DEFENDANT NHL ENTERPRISES, L.P.

Shepard GoldfeinSkadden, Arps, Slate, Meagher & Flom, LLPFour Times Square

New York, NY 10036

FOR DEFENDANTS COMCAST SPECTACOR,L.P., PHILADELPHIA FLYERS, L.P.,PHILADELPHIA FLYERS, L.L.C. ANDGLOBAL SPECTRUM, LP

M. Norman GoldbergerBallard Spahr, LLP1735 Market Street, 51 st FloorPhiladelphia, PA 19103

Unless otherwise ordered by the Court, any Settlement Class Member who does not make his or herobjection or opposition in the manner provided shall be deemed to have waived all objections and opposition tothe fairness, reasonableness and adequacy of the proposed Settlement, the application for attorneys fees,expenses and costs and the request for incentive fees for the Named Plaintiffs.


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If the Settlement is approved by the Court, the Court will enter a final approval order and judgment thatwill dismiss the Action with prejudice and bar and permanently enjoin Plaintiffs and each Settlement ClassMember from prosecuting the Released Claims against the Released Parties. Once the period of time has expiredfor any appeal of the final approval order and judgment, Plaintiffs and Settlement Class Members shall beconclusively deemed to have released any and all Released Claims against the Released Parties.

Inquiries regarding the Action should be addressed to Derek G. Howard at the address listed above.

The Court may adjourn or continue the Final Fairness Hearing without further notice to the Class.

WHAT IF I DO NOT WISH TO PARTICIPATE IN THE SETTLEMENT?

You may, if you so desire, request to be excluded from the Settlement Class. Any Settlement ClassMember who does not wish to participate in this Settlement Agreement must submit a written Request forExclusion via first class United States mail to Plaintiffs counsel, counsel for the Flyers Defendants and counselfor the NHLE at the addresses above, which must be postmarked no later than February 6, 2014, The Requestfor Exclusion must be personally signed by the Settlement Class Member and must state (1) your name,address and telephone number; (2) whether you are currently a Flyers season ticket holder; (3) your season ticketholder account number(s); and (4) that you wish to be excluded from the Settlement Class. All persons whosubmit valid and timely Requests for Exclusion shall have no rights under the Settlement Agreement and shall not

be bound by the Settlement Agreement or the final judgment in the Action. Any Settlement Class Member who

has not timely requested exclusion from the Settlement shall be bound by the terms of the Settlement Agreementupon final approval of the Settlement.

PLEASE DO NOT CONTACT THE COURT REGARDING THIS NOTICE.

Dated: December 20, 2013

BY ORDER OF THE HONORABLE DOUGLAS E. ARPERT, U.S.M.J.

6. Settlement of Flyers Winter Classic Ticket Lawsuit

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Transcript of 6. Settlement of Flyers Winter Classic Ticket Lawsuit