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The Future of the NFL Concussion Settlement

2015 November 15

This week may end up being the most pivotal moment in the future of the NFL Concussion Settlement Litigation. On Thursday, the Third Circuit will hear oral arguments on why the NFL Concussion Settlement should be reversed or affirmed.

And while oral arguments are often not decisive, they at least provide a glimpse of which way the judges are leaning. They also focus the issues that are potentially determinative, which in turn, allow observers to analyze a likely result.

Some of the best appellate lawyers in the country are slated to argue the respective sides. The NFL has, once again, called on Paul Clement to save the settlement. Also advocating for affirming the settlement, the Class will likely be represented by Professor Samuel Issacharoff.

On the opposite side, seeking reversal of the settlement, there are several lawyers vying for an opportunity to speak. The two most prominent are Deepak Gupta and Steven Molo. Molo’s group has been a tour de force throughout the objection process, providing critical assessment and analysis of the settlement’s inadequacies. Gupta’s group, similarly, has submitted some stellar appellate briefs that effectively identify the deficiencies of the settlement that arguably compel reversal.

Simply put, the parties are well represented, and you can all-but guarantee that this case is headed for the Supreme Court, though the granting of certiorari is less than certain. But first, the Third Circuit must weigh in.

Rather than summarize the arguments on appeal, Gupta’s Opening brief frames the issues so well that it deserves to be excerpted below. Over the next four days, I also intend to republish here what I deem to be the most compelling arguments. (If you can’t wait, you can read the full Opening brief here and the Reply brief here. The rest of the briefing from all sides can be found here.).

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Submitted by Gupta Wessler PLLC, et al on behalf of the Armstrong Objectors

By the summer of 2013, the NFL’s executives faced a crisis. Despite the League’s campaign to obscure the effects of concussions in pro football, the autopsy of a beloved former player had led to the discovery several years earlier of chronic traumatic encephalopathy. Characterized by mood and behavioral problems, and even suicide, CTE is a neurodegenerative condition caused only by repeated head trauma. Of 91 former NFL players’ brains examined, CTE has been found in 87.

The discovery of CTE set off a wave of lawsuits by over 5,000 players—a legal and public-relations nightmare for the NFL. But those in the NFL’s boardroom that summer were even more alarmed by what they saw on the horizon, and what the rapidly evolving science foretold: a tsunami of claims by the far larger number of players who would be diagnosed with CTE in the decades to come.

So the NFL wanted an end game: It would pay those with present injuries, including families of players who had already died with CTE. In exchange, the NFL would secure a sweeping global release of all former players’ future CTE claims, without paying any of them. This bargain would result in a stark disparity: The family of a player who dies with CTE before the class-action settlement’s approval gets up to $4 million. But an identically situated player who dies a day after the settlement’s approval releases his claim and gets paid nothing—for the exact same diagnosis.

Why did the NFL believe it could get the plaintiffs’ lawyers to go along with such a lopsided deal? Because, for these lawyers and their injured clients, “the critical goal is generous immediate payments.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 (1997). “That goal,” however, “tugs against the interest” of those with future claims, id., who would prefer to reduce payouts now in favor of “sturdy back-end opt-out rights” and a deal that “keep[s] pace with changing science.” Id. at 610-11.

Why did the NFL and the lawyers think they could disregard the thousands of former players who may be diagnosed with CTE in the future? Because none of the lawyers at the negotiating table independently represented their interests. The personal-injury cases had been consolidated before a single judge in Philadelphia, who appointed a Plaintiffs’ Steering Committee and ordered it to mediate with the NFL in July 2013. But the court never appointed independent counsel for the future claimants, whose rights the Committee had every incentive to trade away.

Just a few weeks later, in August 2013, the NFL and the lawyers emerged with a signed term sheet. There had been no formal discovery, and no litigation beyond a motion to dismiss. Yet the plaintiffs’ lawyers secured the right to seek a nine-figure fee award. The NFL got the sweeping release it wanted, and the present claimants got their compensation. Meanwhile, thousands of potential future CTE claimants—including the 34 Armstrong Objectors—were left on the sidelines.

Neither “the terms of the settlement” nor “the structure of the negotiations” can provide this Court with any assurance that the interests of future claimants were truly represented during the negotiation process. Amchem, 521 U.S. at 627. As to substance: The settling parties are unable to defend the disparate treatment at the heart of this deal. They cannot explain why a player who dies with CTE tomorrow loses the millions that would go to that same player if he died last year.

As to procedure: The supposedly independent “futures” subclass counsel was not, in fact, independent. He was picked by, and from within, the Plaintiffs’ Steering Committee. And the subclass representative was recruited only after the deal had already been hashed out by the lawyers. He doesn’t even allege a claim based on CTE—either for himself or for the thousands of players he supposedly represents. A “representative” who abandons the most valuable claims of those he represents, for nothing, is no representative at all—certainly not an adequate one.

This inadequacy is underscored by class counsel’s refusal to file a fee request until after final approval, leaving many critical questions unanswered. That procedure violates the rule in this circuit that “a thorough judicial review of fee applications is required in all class action settlements.” In re GM Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 819-20 (3d Cir. 1995). “There was no excuse for permitting so irregular, indeed unlawful, a procedure,” Redman v. RadioShack Corp., 768 F.3d 622, 638 (7th Cir. 2014)—an independent ground for reversal.

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