Co-lead class counsel in the NFL concussion litigation settlement has pushed back against third-party funding company Thrivest’s efforts to delay disputed payments to claimants pending an appeal over the validity of lending agreements the company entered into with ex-players.
Seeger Weiss attorney Chris Seeger, who is co-lead counsel in the litigation, on Tuesday asked the U.S. Court of Appeals for the Third Circuit to deny the motion for stay that Thrivest filed with the court last week.
Although Thrivest contended that allowing the claims administrator to begin paying out a disputed claim before a final decision is made about the validity of the agreements it entered into with some of the players raised due process issues, Seeger contended in a 10-page response that Thrivest, and other lending companies, were aware of language in the settlement agreement that potentially barred third-party agreements.
“Thrivest cannot claim ignorance as to the prohibition on assignments, or unfairness in terms of the district court’s or claims administrator’s actions, because Thrivest incorporated into its agreement the very settlement containing the prohibition on assignments term, as well as the terms regarding the district court’s continuing jurisdiction and regarding the responsibilities of the claims administrator,” Seeger said in the filing.
The dispute stems from U.S. District Judge Anita Brody of the Eastern District of Pennsylvania’s December 2017 order invalidating third-party agreements under the terms of the settlement agreement.
Thrivest, which is one of three third-party lenders pursuing an appeal of that order, filed an expedited motion to the Third Circuit on Feb. 19, saying that it had received notice that the claims administrator planned to pay out a claim in early March for William Andrews, an injured ex-player who also entered into a lending agreement with the company. Andrews played from 1979 to 1986 for the Atlanta Falcons, according to the Pro Football Reference website. The claims administrator, according to Thrivest, had given the company the choice of either waiving its rights regarding the agreement and receiving the principal on the loan, or the administrator would simply pay the player the full amount of its claim.
In its expedited motion seeking a stay, Thrivest contended that it would be “irreparably injured” if the disputed payments were made, and that “leveraging this flawed paradigm, which is at the heart of this appeal, to encourage Thrivest to forego its appellate rights is especially disconcerting.”
Seeger responded that courts have rejected similar requests to stay Brody’s order, and that Thrivest previously had the opportunity to challenge the payments. Seeger also contended that the district court still has jurisdiction over the money.
“The salient fact remains that, when the district court issued the Dec. 8 order, the monies to be paid constituting Mr. Andrews’ monetary award were still under the auspices of the district court (and still are), along with numerous other class members’ potential future monetary awards that are the subject of Thrivest’s and the other appellants’ putative assignment agreements,” Seeger said. “Once Mr. Andrews is actually paid on his claim, only then will the district court’s authority end and Thrivest be able to assert all its legal claims against Mr. Andrews, subject to the laws against usury, or whatever other rights and defenses the respective parties may have.”
Fox Rothschild attorney Peter Buckley, who is representing Thrivest, declined to comment.