Judge Denies Preliminary Approval Of $760 Million NFL Concussion Settlement

Judge Denies Preliminary Approval Of $760 Million NFL Concussion Settlement

PHILADELPHIA — (Mealey’s) The Pennsylvania federal judge overseeing the National Football League concussion injury multidistrict litigation issued an order Jan. 14 denying a motion seeking preliminary approval of a previously announced proposed $760 million class action settlement  (In re:  National Football League Players’ Concussion Injury Litigation, No. 12-2323, E.D. Pa.). 

(Order available.  Document #77-140127-006R.

Former NFL players filed hundreds of lawsuits against the NFL over the long-term effects of concussions.  The cases were consolidated in the U.S. District Court for the Eastern District of Pennsylvania and assigned to Judge Anita B. Brody.  In two master complaints filed in the MDL on June 7, 2012, the former players claim that the NFL has been aware for years of the risks associated with repetitive head impacts during practices and games but “ignored the risks and/or was willfully blind to the risks and/or actively concealed the risks from NFL players.” 

Brain Injuries 

The plaintiffs say their allegations arose “from the pathological and debilitating effects of mild traumatic brain injuries (referenced herein as ‘MTBI’) caused by the concussive and sub-concussive impacts that have afflicted former professional football players in the NFL.” 

“For many decades, evidence has linked repetitive MTBI to long-term neurological problems in many sports, including football.  The NFL, as the organizer, marketer, and face of the most popular sport in the United States, in which MTBI is a regular occurrence and in which players are at risk for MTBI, was aware of the evidence and the risks associated with repetitive traumatic brain injuries virtually at the inception, but deliberately ignored and actively concealed the information from the Plaintiffs and all others who participated in organized football at all levels.” 

On Aug. 30, 2012, the NFL moved to dismiss the complaints, arguing that pursuant to Section 301 of the Labor Management Relations Act, the former players’ claims amounted to a labor dispute that depends on an interpretation of the terms of the applicable collective bargaining agreements (CBAs) between the players and their teams. 

Mediation, Settlement 

Before ruling on the motion, Judge Brody ordered the parties to “engage in mediation to determine if consensual resolution is possible.”  She appointed retired U.S. Judge Layn Phillips as mediator.  A settlement was reached in August 2013.  

The proposed settlement would create a Baseline Assessment Program Fund that would offer eligible retired players neuropsychological and neurological evaluations, a $675 million Monetary Award Fund and an Education Fund that would create programs promoting safety and injury prevention in football players.  The NFL also agreed to pay an additional $112.5 million in attorney fees. 

On Jan.6, the parties filed a motion for preliminary approval of the settlement.  Judge Brody denied the motion with prejudice. 

“I am primarily concerned that not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid,” Judge Brody wrote.  “The Settlement fixes the size of the Monetary Award Fund.  It also fixes the Monetary Award level for each Qualifying Diagnosis, subject to a variety of offsets.  In various hypothetical scenarios, the Monetary Award Fund may lack the necessary funds to pay Monetary Awards for Qualifying Diagnoses.”

 Counsel 

The plaintiffs are represented by Jeannine Kenney of Hausfeld in Philadelphia; Christopher Seeger and David Buchanan of Seeger Weiss in New York; Sol Weiss and Larry E. Coben of Anapol Schwartz in Philadelphia; Thomas V. Girardi and Graham B. LippSmith of Girardi Keese in Los Angeles; Michael D. Hausfeld and Richard S. Lewis of Hausfeld in Washington, D.C.; Gene Locks and David D. Langfitt of Locks Law Firm in Philadelphia; Steven C. Marks and Ricardo M. Martinez-Cid of Podhurst Orseck in Miami; James R. Dugan II of The Dugan Law Firm in New Orleans; Anthony Tarricone of Kreindler & Kreindler in Boston; Arnold Levin of Levin, Fishbein, Sedran & Berman in Philadelphia; Michael L. McGlamry of Pope, McGlamry, Kilpatrick, Morrison & Norwood in Atlanta; Dianne M. Nast of NastLaw in Philadelphia; David A. Rosen of Rose, Klein & Marias in Los Angeles; Charles S. Zimmerman of Zimmerman Reed in Minneapolis; Derriel McCorvey of The Law Firm of Derriel C. McCorvey in Lafayette, La.; and David S. Casey Jr. and Fred Schenk of Casey, Gerry, Schenk, Francavilla, Blatt & Penfield in San Diego. 

The NFL is represented by Brad S. Karp, Theodore V. Wells Jr., Beth A. Wilkinson and Lynn B. Bayard of Paul, Weiss, Rifkind, Wharton & Garrison in New York, Judy L. Leone and Robert C. Heim of Dechert in Philadelphia and John J. Soroko and Dana B. Klinges of Duane Morris in Philadelphia. 

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