NEW CLASS ACTION COULD BE TOUGH TO PROVE

Posted by Mike Florio on February 15, 2008, 7:45 p.m.
The first class action against the Patriots, filed on behalf of Jets fans after Spygate I, was criticized and generally scoffed at. It’s current status is unknown. (We’ve sent an e-mail to one of the lawyers for more information.)
The second class action, arising from what we’ve been calling Spygate II, will have greater superficial appeal because one of the named plaintiffs was a member of the Rams, who allegedly were cheated out of Super Bowl XXXVI.
But, as a reader has astutely pointed out, the second action could have serious flaws.
While the first lawsuit was based on a finding by the league that cheating had occurred, there’s no hard evidence that the Pats did anything wrong in connection with Super Bowl XXXVI. Sure, the Boston Herald reported that the Pats taped the Rams’ final walk-through. But won’t John Tomase refuse to finger his unnamed source, even if it means cooling his jets as a guest of the federal government?
Then there’s Matt Walsh, the guy whom many believe was the one with the camera. But what if he wasn’t?
Maybe the plaintiffs have something more than the Herald report and a hope that Walsh will sing.
Or maybe they don’t think they need it.
The plaintiffs can argue that evidence of Super Bowl cheating was included in the materials that the Pats surrendered to the league — and that the league destroyed the evidence in part to conceal the fact that cheating occurred in connection with such an important game.
Frankly, we doubt that the information given by the Patriots to the league included such proof. But one of the primary problems with destroying evidence is that subsequent proceedings in which such evidence would have been relevant could result in an inference that the destroyed evidence would have been incriminating on the question of whether cheating occurred.
Other interesting issues could arise in the new lawsuit. For example, will Patriots fans choose to opt out if the class of folks who paid for tickets is ultimately certified by the court, or will they stand firm for their $400? Also, will a class composed of members of the 2001 Rams be certified, or will the Court find that the group is small enough for each individual player to join in the suit as named plaintiffs, if they so choose?
Then there’s the venue. New Orleans is still recovering from Hurricane Katrina. Many residents are jaded and cynical as a result of the way they’ve been treated by the government, with news of formaldehyde-infested FEMA trailers only the most recent in a continuous line of indignities. Jurors from that area might be inclined to believe the worst about other humans, and to lash out at anyone/everyone who is proven to have engaged in wrongdoing.
Of course, a lot has to happen before a jury will ever be considering whether to impose a verdict against the team. Regardless of whether Arlen Specter or anyone else continues to chase this thing, the new lawsuit might ultimately provide a handy forum for the tough questions that still need to be asked and answered, regardless of what those answers might be.