Garber v. MLB Settlement Agreement

7/25/2019 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

Case 1:12-cv-03704-SAS Document 509-1 Filed 01/20/16 Page 1


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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



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.


C 1 12 03704 SAS D 509 1 Fil d 01/20/16 P 1


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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


C 1 12 03704 SAS D t 509 1 Fil d 01/20/16 P 1


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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


Case 1:12 cv 03704 SAS Document 509 1 Filed 01/20/16 Page 1


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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



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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Case 1:12-cv-03704-SAS Document 509-1 Filed 01/20/16 Page 30 of 30


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Garber v. MLB Settlement Agreement

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Transcript of Garber v. MLB Settlement Agreement