Friday the 13th a bad day for NFL Concussion Settlement Players

Friday the 13th - Seeger

April 23, 2018
Sheilla Dingus

Friday the 13th was not a good day for Concussion Settlement Class Members.  On that day numerous filings in opposition to the motion filed by attorney Gene Locks for player-friendly Settlement administration landed on the docket.  Among the filings were responses from Special Masters, Claims Administrator Orran Brown, BAP Administrator Matthew Garretson, NFL Counsel and Co-Lead Class Counsel Chris Seeger.

Of the filings, the most disturbing were those from NFL Counsel and Mr. Seeger.  Shortly after these briefs appeared on the docket I wrote an article addressing the NFL filing, which claims that rampant fraud is taking place.  In the article I acknowledge that some fraud can be expected in any setting where large sums of money are involved, but I also point out how much of the alleged fraud is a result of the NFL’s own actions.  For decades they have opposed disability claims with scorched earth tactics and created a level of distrust and fear of denials within the retired NFL community that is very difficult for those on the outside looking in to even comprehend.

The Settlement resembles the NFL’s Disability Plan on steroids in its attacks against retirees.  This isn’t surprising, because it is standard operating procedure for the league.  Nothing in the NFL’s brief came as a surprise to anyone familiar with their MO.  Unfortunately, as the Settlement progresses, Mr. Seeger’s MO tends to closely resemble that of the NFL.

Combine this with the narrative pushed by both the NFL and Mr. Seeger of players in the Settlement not needing personal legal representation and the climate was created for players to think they were being played.  To make matters even more confusing for the players and even their families a “double dipping” narrative emerged, and Seeger portrayed himself as a hero by dropping his contingency fee for the handful of about 13 clients he represented and portrayed other lawyers who represented hundreds of others as greedy if they refused to follow suit.

Class members didn’t understand that it was Seeger who was demonstrating greed, and as he discredited the lawyers who initiated the brain injury litigation against the NFL, he initiated a power play detrimental to both players and lawyers alike, but highly profitable to himself.

Players and their families didn’t understand the differences in class representation and private representation.  They didn’t realize that Seeger, having locked most other firms out of Settlement negotiations would stand to inherit the bulk of the $112.5 million promised by the NFL and the others who would share in the common benefit would be compensated on a much smaller scale for primarily their PR work which consisted of gaining player-friendly media coverage and convincing players to join the suit.  Players didn’t realize that private representation would only manifest itself fully in the implementation phase of the Settlement when it was time to present and defend their individual claims, and that this is outside the scope of common benefit.

The misinformation campaign permitted a second wave of attorneys to swoop in offering lower contingency fees.  It looked like a Gold Rush.  The way the settlement had been presented to both the players and the public sounded so simple.  “If you have a diagnosis, submit it and we’ll send you a check.”  Lawyers jockeyed for clients expecting to gather medical records and fill out some forms for an easy payday. – some of whom would later properly defend legitimate claims and other who would try to manipulate the process through deceptively telling desperate players what they wanted to hear and skirting ethical considerations, which ultimately is more devastating to the players who trusted them than to the NFL.

Players and lawyers alike were led to believe that mild and moderate neurocognitive impairments would be compensated.  Numerous references to Level 1.5 neurocognitive impairment as “mild dementia” were made in the Segal Report prepared for the NFL to support the rejected $765 million capped settlement and is still believed to be in use in supporting audits.

Segal Report

This has not been the reality of the Settlement.  Mild dementia is not covered, and Level 1.5 Neurocognitive impairment is now referred to as “early dementia.” Level 2.0 Neurocognitive Impairment, which is sometimes referred to as “moderate dementia” appears to be a qualifying diagnosis in name only and not in the actuality of claims processing.  Levels 1.5 and 2.0 do not line up with any standard used within the medical community.  This is apparently the reason Mr. Seeger felt compelled to include this statement in his brief:

training physicians

The average person is led to believe that physicians are trained in medical school, therefore, why should Mr. Seeger, a lawyer, need to provide additional training to them?  According to the Locks motion and exhibits, doctors in the networks are provided with manuals, but these manuals are only available to the doctors, Seeger Weiss, the NFL, and the Claims Administrator, and not to lawyers individually representing clients and presenting their claims.

Email referencing the manuals

In addition to the networks of BAP and MAF physicians, another panel of doctors have been appointed to sit on the appeals board (AAP) and it is believed that these doctors are also provided a manual that is available to no one outside the “inner circle.”  This is a far cry from transparency and the contents of these manuals should be made public since the result has been denials and audits for numerous legitimately ill retirees.  Mr. Seeger’s brief provides no answers.

I had initially planned to address Mr. Seeger’s brief immediately following my analysis of the NFL brief, but on the Monday following Seeger’s late Friday the 13th filing, Attorney Craig Mitnick filed a letter and exhibits with the Court addressing certain claims in Seeger’s brief which brought out Seeger’s relationship with litigation funder Esquire Bank.  Judge Brody quickly placed his letter under seal and early Wednesday issued her ruling against the Locks motion.  I felt compelled to address the most current developments in the Settlement and had to place my analysis of Seeger’s response on hold.

Now it is time to return and address Mr. Seeger.

A surface glance at his brief would be alarming, but closer examination reveals arguments that are largely exaggerated and without substance.  Many of his defenses sound like that of a self-proclaimed super-hero.

Super Hero Seeger

In this statement, in defense of his position, Mr. Seeger admits what all attorneys who filed joinder with the Locks motion find objectionable – that it has been Mr. Seeger – unilaterally – who has in fact engaged with the Claims Administrator, the Special Masters, and the NFL regarding settlement implementation, leaving counsel who actually represent substantial numbers of Class Members conspicuously omitted.

Mr. Seeger references an “entirely new set of Frequently Asked Questions” that were submitted to the docket for commentary and later approved and posted to the Concussion Settlement website.  In a 10,000-word, four-part series, I wrote about how the 69-page set of FAQs presented was far beyond the comprehension of a neurocognitively impaired person who at the advice of Mr. Seeger and the NFL was informed that professional legal representation was unnecessary.

joinders comment

Mr. Seeger accuses Mr. Locks and the attorneys who filed joinder with trying to “usurp Co-Lead Counsel’s oversight of the Settlement’s implementation,” however a plain reading of the Locks motion and joinders would indicate rather than usurping Mr. Seeger’s role, they, as counsel for numerous players sought to join him in having a voice in the implementation process.  Having previously been labeled a “dictator of the MDL,” Mr. Seeger’s brief does little to dispel this notion.

Mr. Seeger states that “Locks has repeatedly ignored (or manifested an ignorance of) the Settlement Agreement,” and while I was unable to reach Mr. Locks for comment, other attorneys, including some of those who filed joinder and were also involved in early Settlement talks, have indicated that Mr. Seeger intentionally misled and kept them in the dark regarding the way the NFL and/or Mr. Seeger intended to implement the agreement, through interpretive language not apparent in the actual written terms of the Settlement.

background and summary

Mr. Seeger speaks of the “unprecedented accomplishment” of the Settlement and its provision of “immediate” baseline assessments, although Advocacy for Fairness in sports fields almost daily phone calls from players who have been unable to get appointments, have had appointments cancelled – or worse – have traveled to appointments several hours from their homes only to find out after the fact that their appointment had been cancelled, or if they were fortunate enough to complete their appointments, have been unable to obtain their test results.

In September Mr. Seeger stated to the Court that the Settlement was working “perfectly.”

"working perfectly"

He has now backtracked from that statement, all the while continuing to defend a flawed process, as he continues to place roadblocks in the path of all others who wish to share in developing solutions.

success of the settlement

Mr. Seeger undermines his own argument with this statement which clearly shows that no attorney or any other party who represents a substantial number of players or is strongly invested in their interest is represented here.  It is deeply disturbing that Judge Brody has allowed and endorsed this.

these calls

Once again, Mr. Seeger reinforces the assertions of Mr. Locks and others whose input and influence have been marginalized.  In defense of the Settlement contract, the players for whom it was supposed negotiated for have been undermined and pushed aside in that they have no one representing their interest in the implementation of the agreement.

each aspect

While no one has complained of the documents and forms developed by Seeger Weiss the policies are a completely different matter and one that should include player representation by way of attorneys invested in their claims.  Lack of representation in this regard is alarming and of great concern.

as of April 9

As stated previously, this is only a partial picture.  Numerous Class Members have had scheduled appointments cancelled, some on multiple occasions. Mr. Seeger states that 51 players have received diagnoses – a very small number considering the number of players examined – while the NFL’s brief in opposition to the Locks motion paints those who were examined through the BAP and received qualifying diagnoses, as potentially fraudulent if they did not contract for continued treatment, apparently oblivious to the fact that many need their awards in order to be able to afford treatment.  Just as the numbers cited by Mr. Seeger point to the difficulty of obtaining a qualifying diagnosis through the strict BAP criteria, the NFL’s assertions demonstrate a complete lack of understanding of the position numerous players find themselves in.  Most of the players Advocacy for Fairness in Sports has been in touch with have taken BAP exams because they are free, and they have not had the means to pay between $8,000 and $10,000 for a MAF exam which doesn’t even include brain imaging tests which would add even more to the cost of examination.  The NFL provides for only 5 years of post-retirement insurance coverage and the pre-existing conditions suffered by retired NFL players tend to place insurance and the quality medical care it provides out of reach for much of the retired NFL population.

BAP examinations

The figures cited by Mr. Seeger while accurate, are misleading.  Seeger appears to be using figures similar to those in the Claims Report dated April 9, 2018, so I will also use figures from that report.  Notice of monetary awards are far from the same as paid monetary awards.  The report indicates that of the over $411 million, only $171,964,464 has actually been paid; this is the gross before liens and offsets are deducted.  The remainder of claims are still subject to appeal or a last-minute audit and no way are guaranteed to be awarded to the player.

Of the $411,358,192[1] representing approved, but not finalized claims, approximately 50% or $209,246, 842 was approved for cases of Death with CTE, ALS, and Parkinson’s disease.  Of the $171,964,464 amount paid to retirees and their families, $132,885,306 went to those same diagnoses which compose only 12% of claims submitted for Monetary Awards.  While these are people who should absolutely be compensated, so should the remaining 88% with Alzheimer’s and dementia diagnoses.  Because the testing and diagnostic methods which result in diagnoses for dementia are more subjective than for ALS and Parkinson’s, these claims have faced fierce opposition from the NFL, and have seen little in the way of support from Mr. Seeger, or the “independent” Claims Administrator who works under his direction along with that of NFL Counsel.

Mr. Seeger states, “As Locks points out in his motion, the NFL had forecast that claims in the first year of the Settlement would amount only to $242.9 million. At the close of the first year of the MAF, the Notices of Monetary Awards are already exceeding that projection.”  What isn’t readily apparent is that this projection was based on a flawed actuary supporting a $765 million Settlement which the Court rejected.  High dollar claims for Death with CTE and ALS have already exceeded projections for the entire 65-year life of the Settlement, therefore it should come as no surprise that dollar figures are higher while the actual value to other Class Members is still questionable.

Seeger then acknowledges the primary issue of concern in the Locks motion:

qualifying dx

His arguments are less than convincing.  The NFL has long resorted to reactionary tactics when under attack and the Claims Administrator works under instruction of NFL Counsel and Seeger.  If one discounts coincidence, the rapid approval of dementia claims appears to be more of the same.  The Locks motion was filed on March 20. At that time 18 Level 2.0 Neurocognitive Impairment and 37 Level 1.5 Neurocognitive Impairment claims had been approved.  Numbers from the March 26 Claims Report indicate approval of 32 Level 2.0 claims and 66 Level 1.5 claims.  This one-week spike nearly doubled the number of dementia claims approved in the ENTIRE first year of Settlement claims processing.  Most of these claims probably should have been approved months ago.  Fast forward to the April 16 Claims Report.  A steady increase is reported with approval of 43 Level 2.0 claims and 74 claims for Level 1.5.  The status of paid claims, however, shows little difference with a total of 9 dementia claims paid for an increase of only 3.  This is in contrast to the NFL’s own projection that 430 dementia claims would be paid in the first 12 months.

The following chart as presented in the Locks motion reflects the projections versus the reality of paid claims.

Locks compensation chart

It will be interesting to see if paid claims soon begin to resemble approved claims and if the upward trend of dementia claims approvals will continue since the Court has denied the Locks motion and there is less pressure to move claims along, or if the approved claims will fall by the wayside and approvals taper downward again.

hindrance

Seeger then refers to Mr. Locks as a “Monday morning quarterback” and states that his prescriptions have already been implemented, without providing supporting evidence.  Indeed, Mr. Seeger does go on to detail his awareness of the problems but gives nothing credible to support that he has corrected them.  He also states that Mr. Locks’ objections are “simply at odds with the Settlement Agreement and good sense.”  This is a very subjective evaluation on Mr. Seeger’s part.  As noted by numerous attorneys including Locks, the Settlement as marketed, and the Settlement as delivered barely resemble one another.

A list of the issues as submitted by Locks Law Firm:

issues

These issues are hardly trivial, unsubstantial, or in conflict with the Settlement Agreement – at least as it was written and presented.  Mr. Seeger goes on to state that he “involved Locks in the implementation process for a year and a half,” but implications of the exhibits posted with the Locks motion would indicate mere lip-service toward involvement in the areas in which Mr. Locks and other attorneys have voiced concern.  He states that he “sought input” and that Locks was “free to raise issues,” but doesn’t state that any of the “input” was considered or implemented nor any resolution of the issues he was “free to raise.”

While this article is primarily focused on Mr. Seeger’s response to Settlement issues that the Locks motion and joinders sought to address, Part 2 will examine Seeger’s vitriolic and exaggerated attacks on Locks and numerous other attorneys and how this seems to be part of a larger plan to eliminate their influence leaving players largely defenseless in what is quickly becoming a fight for their lives, and the MDL politics which allowed this to happen.

[1] Mr. Seeger’s figure is slightly under this amount which is likely explained by his probable use of figures from the Claims Administrator just prior to publication of the April 9 report.