Concerns Linger in Wake of Brody's Decision to Dismiss All but One From NFL Class Counsel Leadership
U.S. District Judge Anita Brody of the Eastern District of Pennsylvania entered an order that dismissed all of the lawyers who had been serving in co- and sub-class counsel positions, and then reappointed Seeger Weiss attorney Christopher Seeger as the sole class counsel.
May 29, 2019 at 05:39 PM
6 minute read
A decision to dismiss all but one attorney from the NFL concussion litigation's class counsel leadership team has left some lawyers expressing concern that they've lost key voices in the class action just as critical issues have begun to arise in the settlement implementation.
On May 24, U.S. District Judge Anita Brody of the Eastern District of Pennsylvania entered an order that dismissed all of the lawyers who had been serving in co- and sub-class counsel positions, and then reappointed Seeger Weiss attorney Christopher Seeger as the sole class counsel. Brody's two-page order said class counsel had done “an excellent job” achieving the uncapped settlement, which is estimated to top $1 billion, but added that attorneys needed to assist individual clients with the claims administration process and that there is a “need to conserve the common benefit fund.”
The decision means that five lawyers—Sol Weiss of Anapol Weiss, Steven C. Marks of Podhurst Orseck, Gene Locks of Locks Law Firm, Dianne Nast of Nast Law and Arnold Levin of Levin Sedran & Berman—no longer play a role representing the class at large. The ruling leaves Seeger as the sole representative of the class at large.
Some attorneys who spoke with The Legal said they were “shocked” by the ruling.
“This is a complete surprise. It's sua sponte, and it's without precedent,” Locks said. “I've never seen anything like this in any class action.”
Nast, however, said that, although there was no litigation on the issue, she did not find the ruling surprising, and added that she has been involved in other cases where the court decides to disband the leadership team as the litigation begins to wind down.
“I can't say it's routine because I don't think there's such a thing as a routine order in class actions. Judges have different ways of handling these issues, but I think the cleaner thing is to dismiss the committee,” Nast said.
In an emailed statement, Seeger said, “We will continue to fight on behalf of former players and their families to ensure that they receive every benefit they deserve under the settlement.”
Brody's decision comes in the wake of a controversial ruling that several class counsel lawyers pushed back on, and one that appeared to signal a split in class leadership.
Among other things, the ruling, which came down in early April, imposed geographical limitations on which doctors ex-players could use to obtain qualifying diagnoses under the settlement agreement, created a new two-member leadership committee in the claims administration appeals process, and established new rules regarding the level of detail qualified doctors need to provide in order to establish that their dementia diagnoses are “generally consistent” with the claims administration protocols.
Locks, Weiss and Marks objected to the ruling, saying the changes essentially took away several aspects of the settlement that the players had bargained for.
“It moves the entire agreement closer to what the NFL always wanted, but the class rejected: something akin to the benefits plan, with a multi-layered set of reviews and a process that provides multiple opportunities to reject a player's claim,” the lawyers said.
The lawyers also contended that the rule changes should not have been made without the consent of class counsel.
Seeger did not join that motion entirely, but objected only to the geographical limitations.
Brody held a hearing regarding the reconsideration motions where Locks and a Seeger Weiss lawyer argued before the judge. Brody denied the motions May 16, saying the changes did not materially alter the substance of the agreement, but were meant instead to ensure efficiency and help safeguard against fraud.
Texas attorney Lance Lubel, who is not a member of the class leadership, filed a notice of appeal to that order earlier this month, but at least one attorney questioned whether issues directly affecting players will be as strenuously pursued under the more limited class counsel.
Florida lawyer Patrick Tighe, who represents nearly 70 ex-players registered with the claims settlement program, many of which are under audit, said the changes regarding the appeals process and the “generally consistent” standard are of particular importance for the players, since those changes could lead to longer delays for payments.
“My players are very upset,” Tighe said. “All the players are disheartened. They're all like, 'It's the same old NFL. We knew it was too good to be true.'”
He noted that the dismissed class counsel represented thousands of players, and having those attorneys in leadership, he said, made him more confident the players' issues would be raised directly with the court.
“I'm not saying [Seeger's] not doing work on the files, but they are at 40,000 feet. Gene Locks, David Langfitt and Stephen Marks, they're on the ground level,” Tighe said. “He doesn't have that pressure of real family members saying this has dire consequences.”
Locks said there was still time before a decision has to be made about appealing the ruling on the attorneys' class counsel status, and said the rulings may raise “legal questions that have to be answered.”
Nast, however, did not share those concerns, and said attorneys will still be able to appeal rulings and raise issues on behalf of their individual clients, regardless of their appointed status.
“You do whatever you need to do to protect your clients. You don't have to be appointed to do that,” Nast said. “Knowing Judge Brody, I think that she is going to let anyone come in and raise a question they have whether they have an appointment or not.”
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