The registration period for former National Football League players seeking their piece of the $1 billion settlement fund for concussion-related claims ended two weeks ago, but since then the litigation has only intensified.
Over the past month, the U.S. District Court for the Eastern District of Pennsylvania has seen a flurry of filings related to several disputes, challenging deadlines, questioning the administration of the claims and raising new discovery disputes.
Although attorneys disagreed whether the number of issues surfacing is out of the ordinary, class action lawyers agreed that, given the stakes and the players, these disputes were bound to arise.
Blank Rome attorney Evan Lechtman, who is also an adjunct professor at the University of Pennsylvania Law School and is not involved in the NFL litigation, said the challenges themselves are not unusual, but he said the court is seeing them at a higher frequency than he would expect.
“You see [challenges] in all sorts of class actions, but perhaps, given the scope of the settlement, you’re seeing it a little more frequently here,” Lechtman said. “People want to make sure to get it right. There’s a lot at stake on both ends.”
Adam Hoeflich, a professor at Northwestern University and a partner at Bartlit Beck Herman Palenchar & Scott focusing on class actions and complex litigation, said he did not think the filings were out of the ordinary, but agreed that litigations of this size will be hotly contested.
“None of this struck me as terribly out of the ordinary for a settlement of this size,” Hoeflich said. “This litigation is a big deal, and when you have litigation that has this many people and is this high-profile and there’s this much money at stake, these things are going to happen.”
The $1 billion settlement accord was approved in 2015, and is expected to compensate roughly 20,000 former players diagnosed with Alzheimer’s disease, dementia and other neurocognitive diseases. The litigation had been hotly contested for years, with a prior accord having been initially rejected by the court. Parties who took issue with the fact that the settlement does not include payments for players diagnosed with chronic traumatic encephalopathy also lodged a challenge to the settlement weeks after it received judicial approval. The U.S. Supreme Court, however, blocked that effort when it declined to take up the issue in December.
Since then, disputes have arisen over how the $112 million in attorney fees should be divided, and earlier this month motions were filed asking the court to adjust the settlement’s deadlines, and change how the administrator is processing the claims.
According to North Palm Beach, Florida, attorney Patrick Tighe, who is representing 85 former players, a large number of injured ex-players are being denied their claims. He said 22 of his clients have received notices saying their claims are deficient.
Tighe said this is due to the claims administrator reading new language into the settlement, and on Aug. 15 he filed a motion asking the court to void those notices, toll the period for fixing the claims, and have the administrator, BrownGreer, outline its internal procedures and criteria.
“The rules of the game are changing in the middle of the game without any notice,” Tighe said.
According to the motion, the claims administrator is applying improper standard for showing that a player was diagnosed with a compensable injury, effectively adding new documentation requirements.
“The claims administrator has essentially issued the deficiency notices based upon the opinion of someone (an unidentified BrownGreer employee who is not [a qualified] physician or board-certified neurologist) who has reviewed the claims packages of the class members, ‘read’ additional requirements into the settlement agreement, second-guessed the Johns Hopkins trained board-certified neurologist, and made a unilateral determination that the [qualified] physician’s determination is insufficient,” the motion said.
Two days after Tighe entered his motion, the NFL also filed its response to a motion seeking to extend the filing date one year for former players who are institutionalized. The motion was filed by an attorney representing more than 200 registrants.
The NFL contended that the motion should be dismissed because it was not being brought by class counsel, and that there are procedures in place for handling claims that might be delayed for good cause.
“This court or its designated special masters may ultimately review any resulting disputes that are raised at an appropriate time and in an appropriate manner, but doing so now on a hypothetical set of facts and circumstances is unnecessary, wasteful, improper and in conflict with the clear terms of the settlement agreement,” Brad Karp of Paul, Weiss, Rifkind, Wharton & Garrison, who is representing the NFL, said in the motion.
Weeks before those recent filings, the court also agreed to hear arguments over allegedly deceptive solicitations, and as late as Tuesday, class counsel had filed a motion seeking additional discovery in a litigation-funding-related dispute.
Tighe said he did not think the flurry of disputes, particularly on the issue regarding the claims administration, should arise in a litigation this size. However, echoing statements made by Lechtman and Hoeflich, he said he’s optimistic the court and class counsel will be able to handle the disputes.
“It was a tough settlement,” he said. “It’ll be good for the class members if it’s implemented” as written.
Karp and Chris Seeger of Seeger Weiss, who is co-lead class counsel, did not return a message seeking comment.