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First Down — Third Circuit Show Down

2014 September 8

On Wednesday, the Third Circuit will hear the first challenge—of presumably many to come—to the proposed NFL Concussion Settlement.

The request for review was lodged by the so-called Sean Morey Intervenors who have publicly challenged the settlement’s terms on numerous fronts.

The NFL and Class Counsel oppose this request for review, arguing that the appeal is premature.

The Third Circuit identified the issues it intends to hear on Wednesday:

[T]he court directs counsel to be prepared to address at oral argument on September 10, 2014, whether, under Fed. R. Civ. P. 23(f), this court may exercise jurisdiction over an interlocutory appeal challenging settlement class certification where the lower court has issued a preliminary order conditionally certifying the class but has not yet held a final fairness hearing. Counsel also should be prepared to discuss the merits of this appeal, in addition to this jurisdictional question.

In other words, much of the argument will likely focus on a threshold procedural issue that will hinge on whether the Third Circuit has jurisdiction to hear the present dispute. Or, as the NFL and Class Counsel contend, the petition is premature and it should not be addressed until after a record is fully developed by Judge Brody; i.e., after the fairness hearing and an order granting or denying final class certification.

More importantly, the Third Circuit will also hear the merits of the appeal. This is, in essence, a full frontal attack on the proposed settlement. Sean Morey’s group asserts three central points, which they contend “doom” class certification:

1)   The deal compensates only certain individuals diagnosed with CTE, while ignoring hundreds and perhaps thousands of others;

2)   An award can be reduced by up to 75% if a player has suffered a stroke – despite the fact that a contributing factor could have been the NFL’s allegedly illegal administration of Toradol; and

3)   Players who played in the NFL Europe – who were subject to the same fraudulent conduct and policies – will receive no credit for those seasons.

Legal minutia aside — make no mistake — this is argument is very significant.

Courtroom football is back! And it’s sure to include a long appellate season — after a hard-fought regular season in the lower court.

*Oral Arguments are scheduled to be made by the following parties:

Petitioners (aka Sean Morey, et al) – Steve Molo

NFL – Brad Karp and/or Bruce Birenboim

Class Counsel – Samuel Issacharoff

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