Date of Verdict:

August 29.

Court:

U.S. District Court, E.D. Pa.

Judge:

Anita B. Brody.

Type of Action:

Personal injury.

Injuries:

Concussion.

Plaintiffs Counsel:

Sol Weiss and Larry Coben, Anapol Schwartz, Philadelphia; Christopher Seeger, Seeger Weiss, New York.

Defense Counsel:

Brad Karp and Beth Wilkinson, Paul, Weiss, Rifkind, Wharton & Garrison, New York; Robert C. Heim, Dechert, Philadelphia.

Comment:

The National Football League has settled the class action lawsuit brought by thousands of former players who suffered concussive injuries for $765 million, a move one football commentator said had “saved the game.”

Under order from U.S. District Judge Anita Brody of the Eastern District of Pennsylvania to start mediation last month, the NFL and the former players settled the suit at 2 a.m. a few days ahead of Brody’s deadline for a report on negotiation progress, according to Christopher Seeger of Seeger Weiss, who is co-lead counsel for the plaintiffs.

Having filed the case alleging that the NFL, as arbiter of the sport since the 1930s, was responsible for establishing the tenor of the game, enforcing its rules and regulations, and concealing the possible health effects of repeated head injuries, the other co-lead counsel for the plaintiffs, Sol Weiss of Anapol Schwartz in Philadelphia, said of the preference for settlement over litigation, which would have allowed for discovery, “You have to always consider the client.”

Here, there are thousands of football players who need medical attention and litigation could easily drag on for years, he said.

The settlement, which includes no admission of liability on the part of the NFL, devotes $75 million to baseline medical exams for any of the nearly 20,000 former players who are likely to be eligible for the class settlement. The bulk of the money, $675 million, will be kept in a fund from which players can draw according to a weighted assessment of their condition.

The mediator appointed to the case this summer, Layn Phillips, a former district judge in the Tenth Circuit, called the settlement a “historic agreement” in a release issued with an outline of the terms.

Brody has to grant preliminary approval, but Weiss guessed that she would move quickly, saying, “Brody is very vested in this. She pushed us to get this.”

In her brief, two-page order announcing the notice of settlement, Brody said, “From the outset of this litigation, I have expressed my belief that the interests of all parties would be best served by a negotiated resolution of this case.”

“The settlement holds the prospect of avoiding lengthy, expensive and uncertain litigation, and of enhancing the game of football,” she said.

Discussions for settlement started a year ago, Seeger said, recalling that Brody told both parties at the start of the case that neither side would likely be happy at the end of litigation. Lawyers from both sides were in touch with each other daily for a year with hundreds of meetings, he said, but they started making real progress after Brody appointed Phillips.

Brad Karp of Paul, Weiss, Rifkind, Wharton & Garrison led the defense negotiation with Beth Wilkinson, also of Paul Weiss.

Robert C. Heim from Dechert’s Philadelphia office was local counsel for the NFL, but referred requests for comment to the league, which declined to comment beyond what was included in the release from Phillips.

“She started this off early,” Weiss said of Brody’s role in the negotiations.

Both sides were feeling pressure after she held a hearing in April on the threshold issue of whether or not the collective bargaining agreements between the NFL and the players would pre-empt the case. The NFL argued that it would be pre-empted and the plaintiffs disagreed.

In that hearing, former Solicitor General Paul Clement, for the NFL, squared off against David Frederick, a former assistant to the solicitor general who argued for the plaintiffs. Clement characterized the case as one that boils down to a workplace safety issue.

“We all had a gun to our head,” Weiss said. The gun was how Brody would rule on the pre-emption issue.

“No matter what the judge ruled, the other side was going to take an appeal,” Weiss said, and it’s such a hot issue it might well have gone to the U.S. Supreme Court, which could have easily taken a couple of years.

“That’s what makes a good settlement — a lot of risk on both sides,” Seeger said.

The settlement is also an unusual one, Weiss said, because it includes a medical screening program, the fund will be available for more than 60 years in order to accommodate the youngest class member when he is 80, and because it has a personal injury component — most class actions are for securities or consumer products.

The last similarly scaled injury classwide settlement that came through the Eastern District was the suit against the diet drug called Fen-Phen.

The “ability to do this on a classwide basis is unique,” Weiss said.

“Our goal was to get to retired players as much financial assistance as possible,” said Larry Coben, also of Anapol Schwartz, who worked on the plaintiffs’ side.