NFL Sunday Ticket Class Action Should Be Sent to Calif. State Court, Plaintiff Urges

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A plaintiff involved in multidistrict litigation over the National Football League’s “Sunday Ticket” has asked a federal judge to move his class action lawsuit back to California state court. The remand motion was filed just eight days before Super Bowl 2016, which airs this Sunday on CBS.

In December, the U.S. Judicial Panel on Multidistrict Litigation consolidated in California federal court more than 20 antitrust class action lawsuits that challenge an exclusivity agreement between the NFL and DirecTV regarding the NFL Sunday Ticket package. The consolidated litigation is titled In re: National Football League’s “Sunday Ticket” Antitrust Litigation.

In a motion filed last Friday, plaintiff Gary Lippincott Jr. states that defendants DirecTV Inc. and DirecTV Holdings LLC failed to meet their burden to show that removing the litigation to federal court was proper. Because he asserts only state law claims, his NFL Sunday Ticket class action lawsuit should be sent back to state court, Lippincott argues.

Lippincott originally filed his Sunday Ticket class action lawsuit on Oct. 6, 2015 in California state court, alleging that contracts for the NFL Sunday Ticket programming were void because they contained unconscionable provisions that violated California’s Consumer Legal Remedies Act and the Unfair Competition Law. Although Lippincott’s class action lawsuit included language that is often used in federal antitrust litigation, he asserts that none of the claims invoke federal law or can be preempted by federal law.

“In truth, plaintiff’s claims here sounded defendants’ ‘removal alarm’ for one reason only – because plaintiff’s complaint included descriptive terms that are sometimes associated with federal antitrust claims,” Lippincott argues. “Plaintiff’s intent in using those descriptive words, however, was not to assert federal claims, but rather to establish the procedural and substantive elements of unconscionability under California law, since unconscionability is at the heart of all of plaintiff’s claims.”

Lippincott’s Sunday Ticket class action lawsuit was removed to the U.S. District Court for the Northern District of California in November. Lippincott immediately responded with a motion to remand his case back to state court. However, his NFL Sunday Ticket class action lawsuit was consolidated with the other Sunday Ticket class action lawsuits in California federal court.

“To plaintiff’s knowledge, this case was and is the only action asserting exclusively California state law causes of action against defendants,” Lippincott asserts.

DirecTV and the NFL have been hit with a number of class action lawsuits by consumers and businesses who subscribe to Sunday Ticket. The plaintiffs allege that the NFL and DirecTV have a broadcasting agreement that prevents competition from other businesses. The flurry of antitrust class action lawsuits followed a decision by a New York federal judge to grant preliminary approval to settlement of claims that National Hockey League fans were forced to pay exorbitant fees for out-of-market games.

Lippincott is represented by Caleb Marker, Brian C. Gudmundson and Jason R. Lee of Zimmerman Reed LLP.

The NFL Sunday Ticket Class Action Lawsuits are Robert Gary Lippincott Jr. v. DirecTV Inc., et al., Case No. 2:15-cv-09996, and In re: National Football League’s “Sunday Ticket” Antitrust Litigation, Case No. 2:15-ml-02668, in the U.S. District Court for the Central District of California.

UPDATE: On Sept. 22, 2016, plaintiffs in a NFL Sunday Ticket litigation registered their opposition to the NFL’s motion to dismiss arguing that they have clearly alleged anticompetitive behavior on the part of the NFL and DirecTV that caused real harm for consumers.

UPDATE 2: On Oct. 24, 2016, the National Football League argued the plaintiffs cannot show any antitrust actions.