The NFL Concussion Litigation is Far From Over

Although the NFL Concussion Settlement appeared to have reached the goal line (when the Third Circuit affirmed the deal), a late Hail Mary to the Supreme Court may have extended the litigation into overtime. (Enough with the football references.) Here is what’s at stake.

In late August, the family of the late Cookie Gilchrist filed a petition for a writ of certiorari asking the Supreme Court to review the settlement. Shortly thereafter, the objectors’ most valuable player – Deepak Gupta – filed a separate petition asking the Supreme Court to weigh in on the settlement’s deficiencies.

Pleading that the Supreme Court grant cert., Deepak argued why this case demands the Court’s attention:

If this Court does not intervene now, the consequences will be severe: not only will lawyers and litigants be handed a blueprint for circumventing Amchem and Ortiz, but thousands of former football players later diagnosed with CTE may file suit in the Second Circuit—and that circuit’s precedent will permit them to collaterally attack the settlement on the ground that it did not provide them any compensation. This is thus the rare case in which a split in the circuits may lead to a different result in the same litigation—litigation affecting the lives of thousands of people, hundreds of millions of dollars, and the future of professional football. This Court’s intervention is required.

Enmeshed in fairly complex legal arguments about class actions, the thrust of Deepak’s brief is the settlement’s disparate treatment of CTE—and how its implementation into the settlement violates the “ground rules” of class actions. In other words, Deepak zeroes in on the alleged conflict between those individuals who died with CTE prior to April 22, 2015 (who will receive up to $4 million) and those individuals who die after April 22, 2015 with CTE (who will receive nothing). Deepak argues that this creates a massive conflict of interest between the class members, and as such requires reversal. (The full brief can be found here.)

More still, Deepak foreshadows the potential havoc that has been wreaked by the settlement. Rather than buying global peace, the settlement may be subject to a “collateral attack,” which would allow certain CTE claimants (those who receive nothing, such as Ken Stabler’s family) to file separate lawsuits requesting that the settlement’s release be struck down because it violates due process. Stated another way, the settlement may open the flood gates to a tsunami of future CTE litigation, while simultaneously triggering a circuit conflict in class action jurisprudence.

Though compelling, the chances of the Supreme Court granting cert. are slim. Indeed, each term 7,000 – 8,000 petitions for cert. are filed, and the Court grants less than 80 of them. And even if the Court agrees to take the case, the likelihood of reversal is even more daunting.

The Supreme Court’s timing in which a decision will be made—i.e., whether to hear the case or not—is somewhat elusive. Deepak’s case was “docketed” on September 29, 2016. The NFL and Class Counsel have until November 2, 2016, to file a brief in opposition in which they will argue why the Court should not take the case. Similarly, any amicus briefs in support of the cert. petition must be filed by October 31, 2016. After this date, the briefs are “distributed to the Justices’ chambers” where they decide whether to grant or deny the petition. (The SCOTUS Blog breaks down the inner workings here). Traditionally, four justices must agree to hear the case.

The decision-making process is somewhat opaque, i.e., there is no definitive timeline, but most SCOTUS observers believe the turnaround will be relatively quick. In other words, there will likely be a decision before Christmas.

If the Court declines to review the case, all appeals are exhausted and the settlement becomes effective. On the other hand, if the Court grants cert., it can “pursue several options.” A breakdown of those options can be found here. But most notably, though unlikely, the Court can schedule briefing and oral argument, which would inevitably drag the NFL Concussion Litigation out for another year, if not longer.

We will continue to monitor the Court’s docket and timely update the status of this appeal.