Federal Judge Gives Preliminary Approval To NFL Brain-Injury Settlement

PHILADELPHIA  — (Mealey’s) A federal judge in Pennsylvania on July 7 preliminarily approved a settlement between the National Football League and retired players claiming football-related brain injuries (In Re:  National Football League Players’ Concussion Injury Litigation, MDL Docket No. 2323, No. 2:12-md-2323, Kevin Turner, et al. v. National Football League, et al., No. 14-29, E.D. Pa. [order available to lexis.com subscribers]). 

Classes, Counsel

U.S. Judge Anita R. Brody of the Eastern District of Pennsylvania also conditionally certified a settlement class and subclasses; appointed co-lead class counsel, class counsel and subclass counsel; approved the dissemination of class notices; scheduled a fairness hearing for Nov. 19; stayed matters as to released parties; and enjoined related suits by proposed members of the settlement class. 

The settlement class consists of all living NFL players who retired before June 25, their authorized representatives (representative claimants) and spouses, parents and children who are dependents of a retired player (derivative claimants).   There are two subclasses:  retired NFL players who were not diagnosed with a qualifying diagnosis prior to June 25, their representative claimants and derivative claimants and retired NFL players who were diagnosed with a qualifying diagnosis prior to June 25, their representative claimants and derivative claimants.  Shawn Wooden was appointed as subclass 1 representative; Kevin Turner was appointed as subclass 2 representative. 

Judge Brody appointed The Garretson Resolution Group Inc. as the Baseline Assessment Program (BAP) administrator and lien resolution administrator; BrownGreer PLC as claims administrator, Citibank NA as trustee and Kinsella Media LLC as settlement class notice agent. 

Notice 

The judge set the following deadlines:  July 11 for transfer of the class notice payment to co-lead class counsel; July 14 for posting of the long-form notice on the settlement website; July 24 for mailing of the long-form notice to all known retired NFL football players, representative claimants and derivative claimants and their counsel.  In addition, co-lead counsel must publish notice by Sept. 15 in various media, including full-page ads in Time, Ebony, People, Sports Illustrated and senior living trade publications; 30-second television commercials on broadcast and cable networks, including NFL Network; 30-second radio commercials on American Urban Radio Networks; Internet banner ads on targeted websites, including NFL.com, CNN.com, Facebook.com and Weather.com and Internet advertising networks; and keyword search ads on search engines Google and Bing. 

The judge also approved an opt-out procedure that sets the following deadlines:  Oct. 14 for written opt-out requests and objections; Nov. 3 for notice by claimants seeking to speak at the fairness hearing and for BrownGreer to file a list of claimants who have opted out; and Nov. 12 for class counsel and the NFL’s counsel to file any responses to objections or filings in support of final approval of the settlement. 

The settlement will pay retired NFL players from $25,000 for a player older than 80 with the least-severe injury to $5 million for a player under 45 with a diagnosis of Amyotrophic lateral scelerosis.  The payments are contained on a matrix with age and diagnosis as the criteria.  The settlement also includes definitions for various diagnoses.  The agreement originally called for a $765 million cap; however, the NFL revised the settlement to remove the cap on June 25.  If a retiree is deceased or unable to pursue his claim, a family member may do so on his behalf.  

Counsel 

Co-lead class counsel are Christopher A. Seeger of Seeger Weiss in New York and Sol Weiss of Anapol Schwartz in Philadelphia.  Class counsel are Steven C. Marks of Podhurst Orseck in Miami and Gene Locks of the Locks Law Firm in Philadelphia. 

Subclass counsel are Arnold Levin of Levin, Fishbein, Sedran & Berman in Philadelphia (subclass 1) and Dianne M. Nast of Nast Law in Philadelphia (subclass 2).  Of counsel to the plaintiffs are Thomas V. Girardi and Graham B. LippSmith of Girardi Keese in Los Angeles; James R. Dugan III of the Dugan Law Firm in New Orleans; Michael L. McGlamry of Pope, McGlamry, Kilpatrick, Morrison & Norwood in Atlanta; Michael D. Hausfeld and Richard S. Lewis of Hausfeld in Washington, D.C.; Anthony Tarricone of Kreindler & Kreindler in Boston; David A. Rosen of Rose, Klein & Marias in Los Angeles; Charles S. Zimmerman of Zimmerman Reed in Minneapolis; Davis S. Casey Jr. and Fred Schenk of Casey, Gerry, Schenk, Francavilla, Blatt & Penfield in San Diego; and Derriel McCorvey of the Law Firm of Derriel C. McCorvey in Lafayette, La. 

The NFL and NFL Properties LLC are represented by Brad S. Karp, Theodore V. Wells Jr., Bruce Birenboim, Beth A. Wilkinson and Lynn B. Bayard of Paul, Weiss, Rifkind, Wharton & Garrison in New York.

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