U.S. District Judge Anita Brody of the Eastern District of Pennsylvania on Thursday appointed Harvard Law School professor William Rubenstein to provide an expert opinion on whether the court should cap the percentage of recovery any class member would be required to pay his attorney. Brody’s order also asked Rubenstein to consider how high or low the cap should be, weigh the reasonableness of requiring class members to pay 5 percent of their recoveries to the common benefit fund, and how to avoid any question of “double-dipping.”
Earlier this year, class counsel asked Brody to set aside $112.5 million for attorney fees and costs stemming from the $1 billion settlement intended to compensate about 20,000 former players suffering from concussion-related injuries. The NFL has agreed to pay the money in addition to the money for the class members.
Brody’s order said that she, and not Rubenstein, will make the final decision on the size of the fund.
Rubenstein’s report is due Dec. 1 under Brody’s order, and the parties will be given a chance to comment in writing.
Christopher Seeger of Seeger Weiss and Sol Weiss of Anapol Weiss, who are lead counsel for plaintiffs in the matter, each did not return a call seeking comment.
Lubel Voyles attorney Lance Lubel in Houston objected to Rubenstein’s appointment, saying his resume and disclosures showed he had performed work as an expert on behalf of Anapol Weiss in the litigation.
On Sept. 15, Lubel said he was “surprised” by Rubenstein’s appointment.
“I really thought the court would find somebody else,” he said, adding that he’s considering filing for reconsideration.
In a footnote, Brody said Rubenstein disclosed that Anapol Weiss had paid him to attend and speak at a meeting of plaintiffs lawyers, but Rubenstein said he had no further involvement in the matter since that date.
The footnote said parties will be able to “pursue any concerns that professor Rubenstein’s attendance at this meeting biased his opinions.”
The attorney fee issue is one of several disputes that have arisen in recent months in the concussion litigation.
Class counsel made a fee request in February, and several objections were quickly lodged.
In February, Lubel filed a motion for a group of roughly 30 former players saying the fee request was premature.
“If unilaterally decided which attorneys are ‘entitled’ to an award of fees, the decision has not been communicated to this court or to the counsel involved,” the motion said.
A group of four Florida firms called the Neurocognitive Football Lawyers PLLC also filed an objection to attorney liens in nearly 200 cases, saying the liens were filed by attorneys who had previously represented their former clients, but had done little to no work.
The filing lists The Holliday Karatinos Law Firm, Gibbs & Parnell, Jeff Murphy Law, and The Yerrid Law Firm as the firms making up the Neurocognitive Football Lawyers.