LOS ANGELES – The attorney for potentially tens of thousands of fans who didn't get to see the abruptly canceled NFL Hall of Fame Game last month has asked a California federal court to make defendants stop talking to potential members of the putative class action.
The court is expected to take up that request during a hearing Oct. 3, Michael J. Avenatti, founding partner of Eagan Avenatti in Newport Beach, said during a Northern California Record telephone interview on Labor Day. Avenatti represents fans, including lead plaintiff Greg Herrick of Los Angeles, who are seeking lawful compensation from the Hall of Fame and the NFL after the game was suddenly canceled.
The motion, filed Aug. 29 in U.S. District Court for California's Central District, is an attempt to keep the class action process from being short-circuited. The motion would limit direct communications between Hall of Fame and NFL representatives and potential members of the class in the case.
The motion also asks the court to nullify any releases and other relief defendants in the case may already and obtained and might get before the October hearing.
"We're asking the court that any releases that have been obtained in the interim be set aside," Avenatti said. "So the court has at its disposal a number of options to remediate the situation."
The motion also asks that defendants be required to obtain permission from the court before any settlement communications with class members.
Such tactics are not heard of, Avenatti said.
"But it's not that common," he said. "Most defendants recognize that unless it is handled completely appropriately - and this has not been - then it is inappropriate."
At issue in the case is what fans, many of whom invested quite a lot in money, time, travel, accommodations and preparation to attend the Hall of Fame Game in Canton, Ohio, should expect after the big game was unceremoniously pulled from under them.
The NFL preseason had been expected to get under way on Sunday, Aug. 7, with a game at the Hall of Fame between the Green Bay Packers and Indianapolis Colts. However, game officials found the turf too dangerous for play and the decision was made to cancel the game. News about the turf came out first, much earlier in the day, but the cancellation was not announced until about an hour before the game was scheduled to begin. Most fans who were planning to attend already had arrived.
Avenatti filed the first class-action lawsuit against the Hall of Fame over the canceled game in a U.S. District Court for Ohio's Northern District on Aug. 11. Soon after, Avenatti filed to have the case voluntarily dismissed with plans to file another lawsuit elsewhere.
Then information began to come out about who knew of the cancellation and when they knew it. Players knew about the cancellation hours in advanced but were ordered to say nothing about it online, Colts punter Pat McAfee said on his popular podcast. That report, soon combined with others, raised the specter that Hall of Fame and game officials intentionally withheld information from fans.
On Aug. 18, the NFL Hall of fame announced that the board of trustees for the Pro Football Hall of Fame, a 501 (c)(3) not-for-profit institution, had approved a special reimbursement plan for all ticket holders to the Hall of Fame Game.
"Notwithstanding the language on the tickets, ticket holders will be fully refunded the face-value of their ticket," the announcement said. "Additionally, the Hall of Fame will refund all processing, shipping and handling fees, pre-paid parking purchased through the Hall of Fame, pre-sale reservation fees, and one night of hotel accommodations to eligible fans, subject to appropriate review, approval, and verification."
Ticket holders also were offered four admission tickets to the Hall of Fame that could be used in the next five years; a commemorative photo of the Hall of Fame Class of 2016; a copy of the 2016-17 Pro Football Hall of Fame Yearbook; and the right to purchase, ahead of the rest of the general public, a ticket for a future Pro Football Hall of Fame Enshrinement Ceremony or Pro Football Hall of Fame Game for one year in any of the next five years. Ticket holders also were offered a 30 percent discount for the purchase of any merchandise from the Hall of Fame’s online store.
That announcement wasn't as forthcoming as it seemed, according to the motion subsequently filed in the case.
"What the press release fails to mention is that fans who chose to take defendants up on their so-called 'special reimbursement plan' will not be fully reimbursed for their damages as allowed by law," the motion said. "Nor does it mention the significant fact that those fans would give up their rights to full compensation by accepting the offer."
Five days after the announcement, Avenatti filed a class action in the California court against the NFL and Hall of Fame, claiming breach of contract and deliberate deceit. The court is being asked to certify two classes for the action, a nationwide class and a California subclass, Avenatti said.
The choice of California for the case was not about venue shopping, Avenatti said.
"This is a different case than what was filed in Ohio," Avenatti said, as the named defendant in the case is a Los Angeles member, the case is now appropriately is filed in California, Avenatti said.
"He would prefer to litigate in California," Avenatti said. "We believe he is entitled to do that."
Avenatti pointed out that for all the controversy around this case, it remains only a few weeks old, that the discovery phase has not yet begun. With an estimated 22,000 fans who didn't get to see the preseason kickoff game, the potential size of the two classes in the action is about as many.
"So this is going to be a very complicated case for the NFL and the Hall of Fame," he said.