This is a rare post that does not involve a personal injury case. I’m writing this case because it has a real impact on how people view the civil justice system which has a real impact on my clients.
The 2018 NFC Championship
Even a casual football fan remembers the controversy surrounding this year’s NFC championship game between the New Orleans Saints and the Los Angeles Rams. The Saints were on the verge of sealing a victory in the closing minutes when the referees fail to call a blatant pass interference penalty on the Rams. I was watching the game with my family rooting for the Rams and I still thought the call was ridiculous.
The blown call changed the entire course of the game and enabled the Rams to go on to win the game and a go on to the Super Bowl. The outrage from Saints fans over the non-call made national headlines and eventually prompted the NFL to enact a major rule change in the offseason.
Tough call. But that is sports, right? Many Saints fans do not see it that way. The backlash over this blown call prompted a handful of civil lawsuits against the NFL by disgruntled Saints fans.
All but one of these lawsuits have been dismissed. But the plaintiff in the lone remaining case just scored a major victory last month. The plaintiff is Tony LeMon, a New Orleans attorney who happens to be a huge fan of the Saints. LeMon filed his civil suit against the National Football League in state court in Louisiana (Civil District Court for Orleans Parish), shortly after a prior suit in Federal Court was dismissed. LeMon’s lawsuit asserts claims against the NFL for fraud and for unjust enrichment.
LeMon wanted to keep his case out of the federal court system. So when he filed his lawsuit against the NFL, LeMon made a strategic decision to demand a low amount of monetary damages ($75,000). This would prevent the NFL’s attorneys from forcing the case to be transferred from state to federal court based on the “diversity jurisdiction.” Diversity jurisdiction is a rule that says if an out-of-state defendant is sued in state court, they can forcibly remove the case to federal court if the amount of damages is above a certain minimum. LeMon realized his chances for success would be much higher if his case stayed in the Louisiana state courts, so he made sure to keep his damages below the minimum.
Plaintiffs in normal personal injury cases generally prefer to stay in state courts because the federal court system is typically less favorable. A plaintiff in a typical tort case is more likely to win in state court and will get more damages in state court than in state court. Particularly relevant to this case, federal courts are much quicker to dismiss cases in the early stages of the litigation. But normal tort plaintiffs are looking to maximize their damages so they can’t afford to adopt the same strategy as LeMon to keep their case in the state courts.
LeMon’s plan to keep the case in the most favorable venue appears to be paying off. The prior lawsuit against the NFL ended up in federal court and got immediately dismissed. But last month a judge in Orleans Parish handed LeMon a major victor when she denied the NFL’s motion to dismiss and allowed the lawsuit to proceed. This came as a shock to many observers who expected LeMon’s claims to suffer the same fate as the earlier federal court case.
The hometown judge not only said the unconventional case against the NFL could proceed, but she also granted LeMon’s motion to compel pretrial discovery. This is a big deal. The discovery process allows a plaintiff in a civil case to obtain all sorts of documents and take depositions under oath.
This is exactly what LeMon is really after in this case. He wants to use the discovery process in the case to force the NFL to produce all types of confidential records regarding the performance of NFL referees any internal action taken regarding the infamous blown call. Even more significant, however, is the possibility – albeit unlikely — that LeMon could force NFL Commissioner Roger Goodell to appear for a deposition. This would mean that Goodell would have to answer sensitive questions under oath about the league and its oversight of referees. Believe me, the NFL does not want you to see how the sausage gets made.
Will Discovery Actually Happen?
This could obviously be a major public relations embarrassment for the NFL. Video of Commissioner Goodell’s deposition testimony would be plastered all over ESPN and internal league records would be subject to unprecedented levels of scrutiny. The NFL has declined to comment on the case (shocker!). But attorneys for the league have already indicated that they will appeal the ruling to the Circuit Court of Appeals. The real question everyone is asking is will discovery in this case actually happen and when?
The answer appears to be yes. The NFL may plan to appeal the judge’s denial of its motion to dismiss, but they don’t get to file that appeal right away and put the case on ice until the appeal is resolved (it is not an interlocutory appeal). Any appeal of the judge’s decision would only come at the end of the proceedings in the lower court. So this case is moving forward at this point, notwithstanding any appeal.
And let’s not forget the fact that the judge also granted the plaintiff’s motion to compel discovery. Usually, when a court grants a motion to compel, the opposing party is given 30 days to comply. This means that the NFL’s lawyers probably have until mid-August to hand over documents and other discovery materials. LeMon will undoubtedly press for the deposition of Commissioner Goodell as soon as possible. That could potentially happen before the end of the year.
How Will the NFL Respond?
I fully expect the NFL to continue fighting this process at every possible step. Any discovery they do initially provide will likely be swamped with redactions, assertions of privilege and other limitations. League lawyers will also probably file motions for various protective orders to block public release of the information they produce in discovery. These motions will probably be granted but that hardly guarantees that documents and information will not get leaked out anyways.
Many people are like me. We love NFL football but hate the league. So it is tempting to cheer on this lawsuit. But I represent victims who have been seriously injured or lost a loved one because someone made a mistake. The problem with lawsuits like this is that it cheapens the public’s perception of the civil justice system. In particular, it leads to a loss of respect for those who bring civil claims.
There are many wrongs in life for which there is not – and should not be – a civil remedy. Getting a bad call against your team in a football game is one of them. When people see silly cases get filed, it causes them to be distrustful of people who file lawsuits. So when I walk into a courtroom, with a client, we start with the ball on the 5-yard line instead of the 25.