Evans v. Ariz. Cardinals Football Club, LLC

231 F.Supp.3d 342

Etopia EVANS, et al., Plaintiffs,

v.ARIZONA CARDINALS FOOTBALL CLUB, LLC, et al., Defendants.

No. C 16–01030 WHA

United States District Court, N.D. California.

Signed February 3, 2017

William Nelson Sinclair, Andrew G. Slutkin, Jamison G. White, Steven Neal Leitess, Joseph Francis Murphy, Jr., Andrew C. White, Phillip J. Closius, Stephen G. Grygiel, Alexander Williams, III, Steven D. Silverman, Silverman Thompson Slutkin White, LLC, Baltimore, MD, Stuart Andrew Davidson, Janine D. Arno, Jason Henry Alperstein, Mark Dearman, Mark J. Dearman, Stuart A. Davidson, Robbins Geller Rudman & Dowd LLP, Boca Raton, FL, Mel T. Owens, Namanny Byrne and Owens, Lake Forest, CA, Rachel Lynn Jensen, Robbins Geller Rudman & Dowd LLP, San Diego, CA, Thomas J. Byrne, Byrne Kiely & White, Denver, CO, for Plaintiffs.

Jack Patrick Dicanio, Allen Ruby, Skadden Arps Slate Meagher & Flom LLP, Palo Alto, CA, Laura M. Flahive Wu, Benjamin C. Block, Covington & Burling LLP, Daniel L. Nash, Marla Axelrod, Nathan J. Oleson, Stacey Recht Eisenstein, Akin Gump Strauss Hauer Feld LLP, Gregg H. Levy, Derek Ludwin, Jodi Levine Avergun, Cadwalader, Wickersham Taft LLP, Derek Ludwin, Washington, DC, Rebecca Ariel Jacobs, Sonya Diane Winner, Covington and Burling LLP, San Francisco, CA, Gregory William Knopp, Akin Gump

Strauss Hauer & Feld LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING IN PART MOTION TO DISMISS

William Alsup, United States District Judge

INTRODUCTION

Defendants in this putative class action move to dismiss plaintiffs' amended complaint, which asserts RICO and concealment claims in addition to previously asserted claims for intentional misrepresentation and conspiracy. Defendants' motion is GRANTED IN PART .

STATEMENT

Defendants are the thirty-two member clubs of the National Football League. Plaintiffs are the estate of a former NFL player and twelve retired players. Between them, the thirteen plaintiffs played for all thirty-two defendant clubs (Dkt. No. 136 at 3–12). The following facts are taken from the amended complaint.

Since its inception in the 1920s, the NFL has risen in both popularity and profitability. The clubs' dedication to keeping professional players on the field even when injured or in pain, dubbed "return to play," became a driving force behind this success. According to the amended complaint, "return to play" manifested in several ways. First , general managers, coaches, and media attention allegedly pressured players to return to play as soon as possible despite injury or pain. Second , the clubs allegedly pressured players to return to play through non-guaranteed contracts that could be terminated at any time (also known as being "cut") if players failed to perform. Third , club doctors and trainers allegedly provided injured players with prescription medications in lieu of adequate rest to return them to play as soon as possible (id. at 19).

The provision of prescription medications to injured players headlines as the major component of plaintiffs' case. The amended complaint specifically claims the clubs represented "that their medical professionals prioritize the players' health," and that plaintiffs believed "that doctors ... and other medical personnel prioritize [their] best interests and would not intentionally advise a procedure or prescribe or distribute a medication that would injure their health" (id. at 21). Contrary to these representations, however, club doctors and trainers frequently gave plaintiffs medications without writing prescriptions, revealing the names of the drugs used, informing plaintiffs of "the long-term health effects of taking controlled substances and prescription medications in the amounts given," or counseling plaintiffs that "inadequate rest [would] result in permanent harm to joints and muscles" (id. at 20). Nor did they inform plaintiffs of health risks associated with mixing certain medications (also known as "cocktailing"), or with mixing medications with alcohol provided by the clubs (id. at 22).

When plaintiffs asked about the side effects of their medications, they were most frequently given responses like "none," "don't worry about them," "not much," "they are good for you," or for injections, "maybe some bruising." Club doctors and trainers also downplayed the seriousness of injuries—e.g. , referring to musculoskeletal breaks and tears as "sprains"—to convince plaintiffs to return to play despite said injuries (id. at 21–22). Club trainers also routinely gave plaintiffs medications without any physician present. These practices, which consistently subordinated plaintiffs' health to the drive to return to play, have allegedly been ongoing since the 1960s.

The amended complaint further alleges that, at a higher level, the clubs coordinated with each other in a number of ways. First , members of each club made up the NFL executive committee, which met on at least an annual basis. General managers, trainers, and doctors also met at regular functions. Second , the clubs equally shared revenue from their television deals. Third , the clubs jointly mandated certain procedures to control drug storage and distribution, including via the NFL Security Office. The clubs also created the NFL Prescription Drug Advisory Committee to oversee administration of controlled substances and prescription drugs to players (id. at 33–37).

The complaint also cites medical sources indicating that musculoskeletal injuries lead to obesity and associated disorders, and that long-term opioid use and non-steroidal anti-inflammatory drugs are associated with a host of adverse health consequences (id. at 49–51). The complaint further details how plaintiffs, who used medications during their NFL careers, have suffered and continue to suffer from various health problems (id. at 56–70).

According to the amended complaint, the length of an average NFL career is about 3.3 years. Players thus "need to stay as healthy as possible not only to earn as much as they can while they play but to best position themselves for later careers," e.g. , in coaching and broadcasting (id. at 51, 89).

Plaintiffs filed the instant action on May 21, 2015, in the United States District Court for the District of Maryland asserting claims for intentional misrepresentation and conspiracy. The clubs successfully moved to transfer venue here, and then unsuccessfully moved to dismiss the complaint on preemption and statute of limitations grounds (see Dkt. No. 89). A prior order granted plaintiffs leave to file an amended complaint to add RICO and concealment claims, modify the class definition, and change named plaintiffs (see Dkt. No. 122).

The clubs now move to dismiss the amended complaint. Their motion both targets the newly added RICO and concealment claims and attacks (again) the previously asserted intentional misrepresentation and conspiracy claims (Dkt. No. 139). Additional allegations in the amended complaint and relevant to this motion are discussed in the following analysis.

ANALYSIS

The clubs contend the amended complaint should be dismissed with prejudice because (1) plaintiffs cannot state a RICO claim, (2) plaintiffs' conspiracy claim fails as a matter of law, and (3) plaintiffs' intentional misrepresentation and concealment claims are not pled with the requisite particularity (ibid. ).

1. RICO CLAIM.

To establish a civil RICO claim against a club, plaintiffs must show the club (1) conducted or conspired to conduct (2) an enterprise (3) through a pattern (4) of racketeering activity (known as "predicate acts") (5) causing injury to plaintiffs' "business or property." 18 U.S.C. 1962(c) –(d), 1964(c) ; Living Designs, Inc. v. E.I. Dupont de Nemours & Co. , 431 F.3d 353, 361 (9th Cir. 2005). The limitations period for civil RICO claims is four years. Agency Holding Corp. v. Malley–Duff & Assocs., Inc. , 483 U.S. 143, 156, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987). It begins to run when a plaintiff knows or should know of their underlying injury. Rotella v. Wood , 528 U.S. 549, 553–55, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) ; Pincay v. Andrews , 238 F.3d 1106, 1109 (9th Cir. 2001).

The amended complaint here alleges that seven of the thirteen plaintiffs in this action—Charles Evans, Chris Goode, Darryl Ashmore, Jerry Wunsch, Alphonso Carreker, Steve Lofton, and Duriel Harris—suffered injuries to business or property (the other six plaintiffs do not assert a RICO claim) (Dkt. No. 136 at 3–9, 51–52). Plaintiffs' theory seems to be that, while players "need to stay as healthy as possible not only to earn as much as they can while they play but to best position themselves for later careers," clubs "have a never-ending supply of players." Thus, the clubs pressured plaintiffs to keep playing with non-guaranteed contracts and the constant threat of being cut, and "conspired to prevent their players from fully healing from their injuries, which would best allow the players to maximize their long-term output, by illegally supplying them with Medications." These actions, plaintiffs claim, "unnecessarily shortened" their NFL careers and diminished their post-NFL prospects (id. at 51–52).¹

Assuming for present purposes that such injuries even qualify as injuries to "business or property" within the meaning of RICO, plaintiffs' claim is plainly barred by the statute of limitations. For civil RICO claims, "discovery of the injury, not discovery of the other elements of a claim, is what starts the clock." Rotella , 528 U.S. at 555, 120 S.Ct. 1075. Thus, the limitations period begins to run when a plaintiff knows or should know of the injury that underlies their cause of action. This "injury discovery" rule is a "disjunctive two-prong test of actual or constructive notice, under which the statute begins running under either prong." Pincay , 238 F.3d at 1109.

Turning, first, to plaintiffs' allegations that "their playing careers were unnecessarily shortened," the NFL careers of the seven RICO plaintiffs ended in 1985 (Harris), 19...