A recent New York Law Journal by Charles Toutant, “Suit Says Lawyer Has Been Shortchanged on Fees in $60M Video Game Settlement,” reports that a New Jersey lawyer claims in a suit that class action firm Hagens Berman Sobol Shapiro shortchanged him on fees from a $60 million settlement of class action suits on behalf of college athletes over the use of their names and likenesses in video games.

Timothy McIlwain of Linwood claims Hagens Berman breached a contract between plaintiffs lawyers concerning sharing of fees in his suit against the firm and three principals, which was filed in federal court in the District of New Jersey.  In addition to the firm, the suit names managing partner Steven Berman and partners Leonard Aragon and Robert Carey as defendants.  Aragon said he had not had a chance to review the lawsuit, but said any claim contradicting a Northern District of California judge who awarded fees would be "frivolous."

The suit claims Hagens Berman breached a contract it entered into with McIlwain concerning division of fees from class action litigation against video game maker Electronic Arts and the National Collegiate Athletic Association.  Roughly 24,000 class members received payments averaging $1,600 each for appearing in a series of video games produced by EA between 2003 and 2014.  In July 2015 a U.S. judge in San Francisco approved the $60 million settlement, which was brought on behalf of college football and basketball players who said their rights of publicity were violated by unauthorized depictions of them in video games.

U.S. District Judge Claudia Wilken of the Northern District of California awarded $5.7 million in attorney fees to Hagens Berman in the combined settlement of three suits against EA and the NCAA on Dec. 10, 2015.  The judge awarded $696,000 to McIlwain after concluding that his fee application sought payment for several items that were unrelated to the case.

But McIlwain's suit cites an agreement between plaintiffs firms in the video game litigation that called for the pooling of any fee award, and a division giving 60 percent to Hagens Berman and 40 percent to McIlwain and his co-counsel, the Lanier Law firm.  Berman agreed to those terms in a Sept. 24, 2013, email that is included in an exhibit to McIlwain's complaint.

McIlwain brings counts for breach of contract, breach of the covenant of good faith and fair dealing, and interference with prospective economic advantage.  He seeks compensatory and punitive damages as well as costs, interest and legal fees.

McIlwain filed suit in state court on behalf of former Rutgers University football player Ryan Hart in 2009.  EA removed the case to U.S. District Court for the District of New Jersey.  Around the same time, Hagens Berman's attorneys filed suit in the Northern District of California on behalf of Sam Keller, who was a quarterback at Arizona State University and the University of Nebraska.

McIlwain's case, Hart v. Electronic Arts, was dismissed by a federal judge in New Jersey who found EA's use of the plaintiff's likeness was protected by the First Amendment. But t hat decision was overturned by the U.S. Court of Appeals for Third Circuit, which sent the case back to District Court in May 2013.

Meanwhile, in Keller v. NCAA, EA appealed a District Court judge's ruling denying its motion to strike right-of-publicity claims asserted by Keller.  EA claimed that its use of the player's likeness and jersey numbers was a transformative use and therefore protected by the First Amendment.  But the Ninth Circuit affirmed the lower court in July 2013.

Lawyers for those cases and for a similar suit, O'Bannon v. NCAA, signed their fee-splitting agreement on Sept. 24, 2013.  And two days later, on Sept. 26, 2013, EA agreed at a mediation session to settle the three suits for $40 million.  In June 2014, the NCAA agreed to pay $20 million to settle the three suits.

Hagens Berman argued before Wilken that it should receive the largest portion of the fee award in the case because a ruling it obtained from the Ninth Circuit in Keller was the catalyst for the $60 million settlement.  McIlwain, for his part, maintains that a ruling he received from the Third Circuit in Hart was the catalyst for the settlement and, therefore, he is entitled to over $4 million in fees.

But Wilken said in a Dec. 10, 2015, order that the right-of-publicity claims raised under California law in Keller exposed EA to the greatest liability.  That finding weighed in favor of a finding that the Keller case made the most significant contribution to the settlement, Wilken said.

Aragon, who is in Hagen Berman's Phoenix office, said his firm has not been served with the complaint yet, but added that the fee distribution was resolved by Wilken.  "Any attempt to bypass the court's order is frivolous.  If we are served, we will move to dismiss the case and will seek fees and costs against Mr. McIlwain."

Aragon said the email cited by McIlwain was "part of a much larger agreement and that agreement never came to fruition.  I would suggest to him that he re-read Judge Wilken's order and dismiss his case."

The litigation was notable because it marked the first time the NCAA paid for the use of the name, image and likeness rights of student athletes.  "Many students received thousands of dollars from the NCAA as a result of the Hagens Berman's work, and the settlement was universally well received by the athletes," he said.