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.<\/p>\n
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.<\/p>\n
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<\/a> to save the settlement. Also advocating for affirming the settlement, the Class will likely be represented by Professor Samuel Issacharoff<\/a>.<\/p>\n 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<\/a> and Steven Molo<\/a>. Molo’s group has been a tour de force throughout the objection process, providing critical assessment and analysis of the settlement’s inadequacies<\/a>. Gupta’s group, similarly, has submitted some stellar appellate briefs that effectively identify the deficiencies of the settlement that arguably compel reversal.<\/p>\n 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<\/a> is less than certain. But first, the Third Circuit must weigh in.<\/p>\n 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<\/a>\u00a0and the Reply brief here<\/a>. The rest of the briefing from all sides can be found here<\/a>.).<\/p>\n **********<\/p>\n Submitted by Gupta Wessler PLLC, et al on behalf of the Armstrong Objectors<\/em><\/p>\n By the summer of 2013, the NFL\u2019s executives faced a crisis. Despite the League\u2019s campaign to obscure the effects of concussions in pro football, the autopsy\u00a0of a beloved former player had led to the discovery several years earlier of chronic\u00a0traumatic encephalopathy. Characterized by mood and behavioral problems, and\u00a0even suicide, CTE is a neurodegenerative condition caused only by repeated head\u00a0trauma. Of 91 former NFL players\u2019 brains examined, CTE has been found in 87.<\/p>\n The discovery of CTE set off a wave of lawsuits by over 5,000 players\u2014a\u00a0legal and public-relations nightmare for the NFL. But those in the NFL\u2019s\u00a0boardroom that summer were even more alarmed by what they saw on the horizon,\u00a0and what the rapidly evolving science foretold: a tsunami of claims by the far larger\u00a0number of players who would be diagnosed with CTE in the decades to come.<\/p>\n So the NFL wanted an end game: It would pay those with present injuries,\u00a0including families of players who had already died with CTE. In exchange, the\u00a0NFL would secure a sweeping global release of all former players\u2019 future CTE\u00a0claims, without paying any of them.\u00a0This bargain would result in a stark disparity: The family of a player who\u00a0dies with CTE before the class-action settlement\u2019s approval gets up to $4 million. But an identically situated player who dies a day after the settlement\u2019s approval releases his claim and gets paid nothing\u2014for the exact same diagnosis.<\/p>\n Why did the NFL believe it could get the plaintiffs\u2019 lawyers to go along with\u00a0such a lopsided deal? Because, for these lawyers and their injured clients, \u201cthe\u00a0critical goal is generous immediate payments.\u201d Amchem Prods., Inc. v. Windsor<\/em>, 521\u00a0U.S. 591, 626 (1997). \u201cThat goal,\u201d however, \u201ctugs against the interest\u201d of those\u00a0with future claims, id<\/em>., who would prefer to reduce payouts now in favor of \u201csturdy\u00a0back-end opt-out rights\u201d and a deal that \u201ckeep[s] pace with changing science.\u201d Id<\/em>.\u00a0at 610-11.<\/p>\n 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,\u00a0who appointed a Plaintiffs\u2019 Steering Committee and ordered it to mediate with the\u00a0NFL in July 2013. But the court never appointed independent counsel for the\u00a0future claimants, whose rights the Committee had every incentive to trade away.<\/p>\n Just a few weeks later, in August 2013, the NFL and the lawyers emerged\u00a0with a signed term sheet. There had been no formal discovery, and no litigation\u00a0beyond a motion to dismiss. Yet the plaintiffs\u2019 lawyers secured the right to seek a\u00a0nine-figure fee award. The NFL got the sweeping release it wanted, and the present\u00a0claimants got their compensation. Meanwhile, thousands of potential future CTE\u00a0claimants\u2014including the 34 Armstrong Objectors\u2014were left on the sidelines.<\/p>\n Neither \u201cthe terms of the settlement\u201d nor \u201cthe structure of the negotiations\u201d\u00a0can provide this Court with any assurance that the interests of future claimants\u00a0were truly represented during the negotiation process. Amchem<\/em>, 521 U.S. at 627. As\u00a0to substance: The settling parties are unable to defend the disparate treatment at\u00a0the heart of this deal. They cannot explain why a player who dies with CTE\u00a0tomorrow loses the millions that would go to that same player if he died last year.<\/p>\n As to procedure: The supposedly independent \u201cfutures\u201d subclass counsel was\u00a0not, in fact, independent. He was picked by, and from within, the Plaintiffs\u2019\u00a0Steering Committee. And the subclass representative was recruited only after the\u00a0deal had already been hashed out by the lawyers. He doesn\u2019t even allege a claim\u00a0based on CTE\u2014either for himself or for the thousands of players he supposedly\u00a0represents. A \u201crepresentative\u201d who abandons the most valuable claims of those he\u00a0represents, for nothing, is no representative at all\u2014certainly not an adequate one.<\/p>\n This inadequacy is underscored by class counsel\u2019s refusal to file a fee request\u00a0until after final approval, leaving many critical questions unanswered. That\u00a0procedure violates the rule in this circuit that \u201ca thorough judicial review of fee\u00a0applications is required in all class action settlements.\u201d In re GM Pick-Up Truck Fuel\u00a0Tank Prods. Liab. Litig.<\/em>, 55 F.3d 768, 819-20 (3d Cir. 1995). \u201cThere was no excuse\u00a0for permitting so irregular, indeed unlawful, a procedure,\u201d Redman v. RadioShack\u00a0Corp.<\/em>, 768 F.3d 622, 638 (7th Cir. 2014)\u2014an independent ground for reversal.<\/p>\n **********<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" 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. 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