C.A. Affirms $1.25 Million Settlement Of Action Against Raiders

Thursday, December 15, 2016

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C.A. Affirms $1.25 Million Settlement Of Action Against Raiders

First District Panel Refers to Former Cheerleaders, Who Sued for Labor Code Violations, By First Name and First Letter of Surname, Drawing Criticisms for Concealing Identities

By ROGER M. GRACE, Editor

The First District Court of Appeal has affirmed an Alameda Superior Court judge’s 2014 approval of a $1.25 million settlement of a class action by former cheerleaders against the Oakland Raiders for violation of state labor laws—doing so in an opinion that virtually shields the identity of the plaintiffs and the objector.

Tuesday’s unpublished decision was not only unusual in according near-anonymity to adult parties who were not the victims of sex crimes or otherwise involved in embarassing circumstances, but the lawyer for the appellant, although he did not obtain a reversal, claimed a “win” for his side. He remarked that the opinion “said what…it needs to say,” inferring from it that the settlement does not bar the action his clients have filed against the National Football League for alleged antitrust violations.

The sole issue before the appeals court was whether Alameda Superior Court Judge Wynne S. Carvill abused his discretion in approving the class settlement. The opinion said he did not, declaring that he carefully reviewed the relevant factors.

Jones’s Opinion

The opinion, by Presiding Justice Barbara J.R. Jones of Div. Five, identified the lead plaintiff only as “Lacy T,” notwithstanding that a New York Times article on Sept. 8, 2015, referred to her as Lacy Thibodeaux.

She was so named in subsequent news reports and on websites. A Sept. 9, 2015, article in the New York Daily News quotes what “former Oakland Raiders cheerleader Lacy Thibodeaux” said “on a conference call with reporters.”

The opinion lists the objector/appellant as “Jenny C.” Her attorney, Drexel A. Bradshaw of San Francisco, said yesterday she is Jenny Corrico.

He said his clients—who also include Caitlyn Yates and Susie Sanchez—“agreed to have their last names to be disclosed.”

The action was brought on behalf of “Lacy T. and Sarah G.” (Sarah Guerrero), no motion was brought by either side with respect to confidentiality, and Carvill did not examine the propriety of the partial identifications of the parties, it has been learned.

Thibodeaux was a Raiderette during the 2013-2014 season, and Guerrero had that position from 2010 to 2014.

‘Security Reasons’

A Jan. 22, 2014 article on the San Francisco Chronicle’s online website says: “The suit identifies her as Lacy T. in accord with a team policy that withholds the Raiderettes’ last names for security reasons.”

However, one retired judge pointed out yesterday that any policy of the Raiders or of the National Football League would in no way be binding on the courts. The former jurist remarked:

Lacy Thibodeaux, identified in a Court of Appeal opinion as “Lacy T.,” is seen in a photo of her as a Raiders’ Raiderette.

“It’s a simple, garden variety wage and hour case,” adding:

“I didn’t see anything in the opinion as to why names were being expurgated.”

Jim Ewart, general counsel for the California Newspaper Publishers Association, commented that he was “outraged” by the nondisclosure of identities. He said the failure to include the parties’ surnames was “certainly contrary to existing law” and was “completely unwarranted.”

The lawyer charged that it was a matter of “thumbing your nose at the public’s right to know.”

He lamented:

“Unfortunately, more and more courts allow parties and juries to be anonymous—and that’s a horrible trend in the courts.”

Cooley Comments

Former Los Angeles District Attorney Steve Cooley voiced this view:

“[T]he law should discourage anything that reduces transparency and advances anonymity. I can’t think of any scenario that would justify shielding identity given facts in this case. If anonymity is of great concern, pay for a private mediator or arbitrator at the fact finding stage.”

Bradley S. Pauley, a partner in Horvitz & Levy and chair of the Appellate Courts Section of the Los Angeles County Bar Association, provided this information:

“[T]he California Style Manual, aka the ‘Yellow Book,’ suggests that naming the adult plaintiffs in this way is not typical. It notes that the Supreme Court has issued a policy statement providing that such a naming convention is appropriate for ‘living victims of sex crimes’ and ‘minors innocently involved in appellate court proceedings.’ (§5:9.) The Yellow Book further notes that ‘[p]rotective nondisclosure should not be applied to an adult who is bringing an action for wrongdoing committed against him or her during the plaintiff’s minority.’ (§5:11, citing Sellery v. Cressey (1996) 48 Cal.App.4th 538; Doyle v. Fenster (1996) 47 Cal.App.4th 1701).”

Bradshaw Claims Victory

Although the opinion did not upset the settlement—which Corrico contended was too low—Bradshaw claimed victory, both because of the wording of the opinion and the legal effect of a concession he insists the opposing sides have made.

“I’ve read the opinion and I’m delighted my colleagues representing the Raiders and the Lacy T. plaintiffs belatedly admitted at oral argument that the anti-trust claims, which are the real meat of the case against the Raiders and the NFL, are to be determined in the two cases still pending,” he said.

Bradshaw explained that up until that time, the Raiders and Lacy T. had contended that the settlement agreement was sufficiently broad as to bar the action in Caitlyn Y. v. National Football League.

The Lacy T. case, filed by the Oakland law firm of Levy Vinick Burrell Hyams LLP on Jan. 22, 2014, claimed that cheerleaders were not paid in accordance with minimum wage and overtime requirements, and that other Labor Code provisions were being breached. Caitlyn Y. was filed in Alameda Superior Court on June 4, 2014, the day after the first case went into mediation, and contained like allegations, but added a cause of action under the Cartwright Act, California’s antitrust statutes.

Bradshaw claimed yesterday that “26 teams conspired together” to oppress the cheerleaders, with the NFL orchestrating the maneuvers. (There are 32 teams in the NFL but not all have cheerleaders.)

The practitioner said the opposing sides are now judicially estopped from contending in the Caitlyn Y. action that it is barred by the settlement agreement in Lacy T. and that in light of the decision Tuesday, that action, which has been stayed, should be allowed to proceed.

He said damages will be based not on the difference between what the cheerleaders were paid and minimum wage, but “the value of the employees to the organization.” Bradshaw declared that the value was “50,000 to 100,000 dollars per woman,” and that with treble damages, the former cheerleaders in all of the teams should collectively garner “half a billion to a billion dollars.”

Wording of Opinion

Jones briefly addressed Bradshaw’s concern that the settlement agreement could be read in such a way as to bar the antitrust action. She wrote:

“According to Jenny C., the release is too broad because it ‘arguably releases...antitrust claims pled in...Caitlyn Y.’ and claims asserted against the NFL. We disagree.”

However, the opinion went on to indicate the nature of the disagreement. It took exception with the proposition that a release barring additional claims is impermissibly broad; it did not dispute not the proposition that the release could be viewed as barring additional claims.

Jones spelled out in a footnote that no position was being taken on the latter proposition, saying:

“Whether the release encompasses the antitrust claims alleged in Caitlyn Y. is not before us and we decline Jenny C.’s request to clarify the scope of the release or ‘remand with instructions as to how the release should be interpreted by future courts.’ ”

Lawyer Contradicts Bradshaw

Sharon Vinick, lead counsel for Thibodeaux, said:

“I sharply disagree with Mr. Bradshaw’s view of the decision. He is wrong in suggesting that anyone changed their views at the hearing. If you look at the Court of Appeals opinion, there is no indication that any ‘concession’ was made at the hearing. And, as someone who participated in the argument, I can assure you that no such concession was made.

“Mr. Bradshaw is also wrong in suggesting that the opinion is any sort of victory for him and his client. The Court of Appeals categorically rejected all of the arguments advanced by Jenny C. and her counsel, including the argument that the release was overbroad….”

“We believe that the Court of Appeals decision is a complete repudiation of the arguments advanced by Mr. Bradshaw and his clients. The only slim victory that Mr. Bradshaw can claim is that the Court of Appeals did not impose sanctions upon him, as we requested [in the amount of $181,649.30]. Although, it is worth nothing that the Court of Appeals did describe the merits of the appeal as being ‘minimal.’ ”

The case is Lacy T. v. Oakland Raiders, A144707.