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When it comes to concussion litigation in college sports, you could say Jay Edelson has the ball.

Jay Edelson

After years of flagging problems in a $75 million settlement with the National Collegiate Athletic Association and finally elbowing his way into the case, Edelson is leading a new crop of class actions on behalf of former college athletes with concussion-related injuries.

The lawsuits, nearly 50 all filed in the past year, target schools including the University of Texas, Florida State University and Stanford University and have brought out an array of Big Law defenders. In the backdrop is a beef over class action strategy that has set two big personalities of the plaintiffs bar against each other.

To bring his slew of cases, Edelson, the charismatic founder of Chicago’s Edelson PC, duked it out in court against Steve Berman, co-founder of Seattle-based plaintiffs powerhouse Hagens Berman Sobol Shapiro. Berman, a veteran, was the lead plaintiffs attorney in the NCAA settlement and Edelson represented an objector claiming the settlement didn’t compensate class members with injuries.

Steve Berman, Hagens Berman

The rift between the attorneys comes down to a highly disputed area in class action law: Can a class action successfully be certified on behalf of injured individuals—in this case, athletes with medical problems tied to brain trauma. The issue is important because class actions often promise much bigger payouts at less cost than do individual personal injury cases.

Most plaintiffs lawyers, including Berman, insist that personal injury class actions are hard to get certified because they often involve different facts about each class member’s medical condition and circumstances surrounding their injuries. That doesn’t mean they never are successful but it’s a difficult and risky strategy to pursue.

In addition to the legal theories, there’s a heap of money at stake, which may explain why Edelson and Berman aren’t mincing words.

“Steve is from a different era,” said Edelson, whose cases have involved cutting-edge claims and targeted Silicon Valley’s tech firms. “We understand that this is a controversial area of law, but we think that we’ve got very good arguments, and we’re looking forward to bringing them.”

Berman has accused Edelson in court filings of “looking for a pulpit, and not a courtroom.” Berman, whose firm also has brought other cases involving injuries in baseball, soccer and water polo, has experience on his side.

“I just don’t see it happening,” he said. “The trend has always been in in the last 20 years against certifying personal injury claims, and I don’t see that changing.”

We’ll See Who’s Right’

Concussion litigation on behalf of professional football players settled four years ago through an agreement now valued at $1 billion.

The plan included hefty payouts to a class of 20,000 former players, with potential compensation in the millions for those diagnosed with severe illnesses tied to head injuries and for the survivors of players who died prematurely as a result of brain trauma.

Edelson, intervening in the NCAA case, argued that in contrast to the NFL plan, the settlement negotiated by Berman had left billions of dollars off the table because it included no compensation for injured players and it would require them to waive their right to be part of a future class action. Edelson wanted a carve-out that would leave a path for players with head trauma to pursue their own class actions.

In January 2016, a federal judge in Chicago gave preliminary approval to the NCAA settlement but left a narrow pathway for class action injury suits, so long as they were brought on behalf of players for injuries “resulting from their participation in a single NCAA-sanctioned sport at a single-NCAA member school.”

“Such a putative class would still face substantial barriers to certification,” U.S. District Judge John Lee of the Northern District of Illinois wrote, “but the record before the court does not permit an evaluation of its merits.”

Edelson, working with Sol Weiss of Philadelphia’s Anapol Weiss, who was co-lead counsel in the NFL settlement, took the judge’s playbook and ran with it. Now both lawyers are heading up 48 class actions coordinated into a new docket before Lee.

The suits name 14 athletic conferences and 13 schools and universities. Most involve football players. One recent suit, filed in late 2016, targets the University of Texas on behalf of all individuals who participated in the school’s football program between 1952 and 2010. The widow of a former UT football player who died at 54 from early onset Alzheimer’s disease is a named plaintiff.

The cases assert the NCAA and the school or conference were negligent and breached their duties to class members to provide a safe sports environment despite decades of studies linking concussions to long-term brain injuries like dementia, Parkinson’s disease and chronic traumatic encephalopathy.

“The individual stories they tell is really heartbreaking,” said Edelson, who has filed most of the cases. “People’s lives have been upended by the fact that they suffered concussions, were forced to continue playing. Their scholarships would be pulled if they didn’t play through the pain. Now, many class members unable to hold down jobs are suffering terrible effects from concussions relating to problems focusing to constant pain to depression.”

It’s unclear how big the classes are in each case. But the new cases have expanded the legal defense team by naming individual schools and athletic conferences. The NCAA is represented by Latham & Watkins, which handled the original settlement. Jones Day is lead defense counsel for the schools, while Mayer Brown has been retained by the athletic conferences.

Berman doubts the new class actions will get any traction. He accused Edelson of pursuing a misguided legal strategy in hopes of getting a repeat of the NFL settlement.

“I think that Jay Edelson thought that if there’s a big [personal injury] class brought, that the NCAA would pony up NFL-type money,” Berman said.

Edelson’s response is unabashed: “That’s right.”

“We think there’s a lot of value in these cases,” he said. “And we’ll see who’s right.”

Roadmap to $1 Billion?

Berman filed the first case against the NCAA in 2011. He was two years into discovery when both sides started to discuss a settlement under which the NCAA agreed to provide medical monitoring to an estimated 4.2 million class members who had played all kinds of sports, not just those in football. The settlement also contained injunctive relief that changed the way concussions were handled at NCAA schools.

Edelson intervened on behalf of Anthony Nichols, a former San Diego State University football player. Among other things, Edelson claimed the “mess of a settlement” had abandoned any avenue for class members to seek damages for personal injuries. He pushed to eliminate a provision in the deal that forced class members to waive their right to bring class actions over their injuries. And he twice sought a seat on the leadership team, and was denied, but was appointed “lead objector.”

In 2014, Lee rejected approval of the NCAA deal, but for different reasons. Among other things, he questioned how lawyers planned to notify every class member about the settlement and raised concerns that those who played noncontact sports weren’t adequately represented in the settlement. He asked for further briefing on the personal injury class action dispute.

In their responses, both sides looked to the NFL settlement, which included payouts to thousands of class members with personal injuries. Despite that case, Berman maintained that the NCAA cases had different circumstances and, besides, the settlement still allowed class members to bring individual injury suits.

“You can’t look at what the NFL did and say, ‘Aha! Here is a roadmap to get $1 billion from the NCAA,’” Berman said.

Edelson said the NFL case is, at its core, the same and that the NCAA, by insisting on the waiver, was trying to avoid paying billions of dollars.

After the January 2016 order carved out a path for some personal injury class actions, Edelson assisted in negotiations to get the waiver out of the settlement for good. Lee preliminarily approved the final settlement six months later. A hearing on final approval of the settlement is set for May 5.

Two months ago, Edelson, claiming his efforts added $50 million in value to the class, filed a motion for $6 million in attorney fees. Berman and 11 other firms on the leadership team, including co-lead counsel Joseph Siprut of Chicago’s Siprut PC, want $15 million.

The judge has asked for billing records, which could end up sparking a new battle for fees.

Edelson said his focus is now on the new cases, and he predicted that more cases would be filed. Lee has asked both sides to come up with sample cases this month.

“We believe, and we’ll see how the litigation goes over the next five to 10 years, that through our litigation class members will recover historic amounts of money,” Edelson said. “We’ll see if we’re right.”

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