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NFL Concussion Class Action Settled

 On April 22, 2015, Federal District Judge Anita B. Brody approved a class action settlement that resolves lawsuits brought against the National Football League (NFL) by former players who alleged that the NFL failed to inform them of and protect them from the risks of concussions in football. The settlement covers over 20,000 retired players and releases all concussion-related claims against the NFL. Arguing that class certification was improper and that the settlement was unfair, 95 objectors appealed the decision.

On April 18, 2016, the United States Court of Appeals for the Third Circuit unanimously affirmed the District Court’s decision to certify the class and approve the settlement.  

The Third Circuit was satisfied that the threshold requirements for class certification (numerosity, commonality, typicality, and adequacy of representation) under Federal Rule of Procedure 23 were met.

The District Court considered several factors before concluding that the terms of the settlement were fair, reasonable, and adequate. Although the objectors tried to challenge the district court's analysis in several ways, none convinced the Third Circuit.

The Third Circuit noted that the expense and likely duration of the litigation weighed strongly in the settlement's favor. The fact that approximately 1% of class members objected and 1% of class members opted out also weighed in favor of settlement approval. Another factor weighing in favor of settlement approval was that class members faced stiff challenges surmounting the issues of preemption and causation. Because the NFL's pending motion to dismiss and other available affirmative defenses could have left retired players to pursue claims in arbitration or with no recovery at all, the settlement represented a fair deal for the class when compared with a risk-adjusted estimate of the value of the former players' claims.

Although the objectors argued that the exclusion of the degenerative disease known as chronic traumatic encephalopathy (CTE)  as a qualifying diagnosis for future claimants was unfair, the Third Circuit was convinced the  district court was well within its discretion in concluding that the settlement's treatment of this condition was reasonable. Given what is known about CTE, many of the symptoms associated with the disease will be covered by a Baseline Assessment Program that will provide eligible retired players with free baseline assessment examinations of their objective neurological functioning. The settlement's treatment of CTE did not render the agreement fundamentally unfair.

In its conclusion, the Third Circuit observed that the objectors risked making the perfect the enemy of the good. The settlement would provide nearly $1 billion in value to the class of retired players. Although the agreement was not perfect, it was fair.

Lexis subscribers can access the opinion at: In re NFL Players Concussion Injury Litig., 2016 U.S. App. LEXIS 6908 (3d Cir. Pa. Apr. 18, 2016)

Lexis Advance subscribers can find the opinion at: In re NFL Players Concussion Injury Litig., 2016 U.S. App. LEXIS 6908 (3d Cir. Pa. Apr. 18, 2016)

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