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The NFL Concussion Settlement Spins Toward the Bizarre

NFL Concussion Settlement Twilight ZoneFebruary 16, 2019
Sheilla Dingus

Touché Mr. Seeger. I’ll have to admit you delivered a solid punch, but if you think it will deter me from writing, you are mistaken.

No journalist wants to be the subject of her own story, but here we are in  2019, and life is strange.  On February 5, Co-Lead Class Counsel for the NFL Concussion Settlement, Christopher Seeger filed a brief on the public docket.  His brief followed shortly after a brief filed by the NFL, responding to attorney Patrick Tighe’s motion for reconsideration of a recent order issued by Judge Anita B. Brody.

The NFL’s reply was rather dry and completely expected.  They opposed Tighe’s motion, calling it “procedurally improper.”  Both the NFL and Seeger referred to Judge Brody’s order as an administrative clarification” of the generally consistent standard.  Seeger portrays the order as “a clear victory for players,” but as I wrote here and here, the clarification she seeks could easily be weaponized by the NFL to hand them a win even though their appeal was withdrawn.

I recapped the NFL response on Twitter. (Click on the tweet to expand and read the thread.)

In addition to the expected arguments above, Seeger’s brief took a turn to the bizarre.  In his attacks on attorney Patrick J. Tighe of X1 Law, Seeger concocted a rather strange theory linking Tighe, alleged criminal Roger Stone, the right-wing media site Infowars, and me.  I was stunned to say the least, and tweeted:

The time has come.  This is an excerpt of the letter that, through counsel, I sent to Mr. Seeger.  The complete letter is embedded at the end of the article.

Letter to Christopher Seeger

Seeger’s brief dropped late in the evening on February 5.  I was planning to travel the next day to attend a law review symposium on February 7 and hadn’t even packed for my trip.  I decided to go forward with the trip and deal with the fallout when I returned home.

In his brief, Seeger wrote:

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I beg to differ.  I take pride in my work and put in many hours of research. None of my “speculations” have been “unfounded” and I stand behind my work.  I prepared a declaration to refute Seeger’s own speculations and hoped to file it on the same public docket that led to my name as well as Advocacy for Fairness in Sports being smeared in at least three national publications that I’m aware of, but learned this wasn’t as easy as it sounded.

Through consulting a number of law firms, I learned that as a non-party, with only a narrow interest in a particular filing that I lack standing to file on the public court docket. I find this problematic, but nevertheless, it seems that non-parties who may be harmed in matters unrelated to the primary case are not afforded any specific rights, so I make my case here and through the letter my attorney has sent to Seeger.

As a lawyer, I’m certain Mr. Seeger is well aware that a journalist is both ethically and legally obligated to protect confidential sources, therefore I am unable to comment regarding Mr. Tighe or any other potential or perceived source in my reporting, leaving him with a certain vantage point.  I do find it peculiar and distasteful, however, that Seeger chose to point out that Tighe has appeared on Infowars yet failed to cite the respected news organizations with whom Tighe has been quoted on the record.  I’m aware of his recent comments to both Law360 and Deadspin, neither of which were mentioned in Seeger’s brief, yet I was, though my quotations from Mr. Tighe are limited to his statements on public court documents.

From Seeger’s brief:

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Seeger fails to note that I’ve sought his comments or dialog on numerous occasions, including for my article on the withdrawn NFL motion and cancelled hearing as evidenced in this email.

Chris Seeger - request for comment

Note: This email was sent on January 10, three days before I published the article he finds questionable on January 13. It is certainly his choice as to whether he opts to respond or not, but in failing to respond, it’s no one’s fault but his own that his perspective has rarely appeared in my work.

Though Seeger is correct in pointing out that I first reported on the settlement on February 8, 2017, it doesn’t appear that he read the article unless he considers, his own comments as well as those of Judge Brody, Orran Brown and Brad Karp to be “muckraking” since that article was merely a recap of a webinar that Judge Brody ordered with no opinions expressed at all.

My second article that referenced the settlement focused on the litigation between the NFL and its insurers, and how they sought discovery that was never obtained in the NFL settlement.   Like the players, the NFL’s insurers wanted to know what the NFL knew about football related brain injury, since the NFL was asking them to pay settlement claims that they never agreed to.

My third article on the settlement was my first in depth piece.  It was written in April 2017 and focused on the many hands who sought pieces of the potential awards that would be paid to retired players as the settlement claims process began.  I interviewed the wife of a retired player, as well as several attorneys outside the settlement expressing their views.  The article was prescient—several of the experts predicted that dementia claims would become the NFL’s method of loss mitigation and they were correct.

From that point forward I continued to read each public filing as it hit the docket while interviewing as many people involved in the settlement as I could.  Based on the public docket and testimony from those with firsthand experience in dealing with settlement red-tape, I reported the facts and made reasoned analyses based on evidence.

Seeger may not agree with my assessments, which is his right, but to call them baseless is patently false.  While I was shocked in reading his brief, I should have probably expected something of that nature to surface at some point since Seeger has a long history of launching personal attacks on those who disagree with him, claiming that the dissenters are spreading falsehoods and misinformation.

One need look no further than the public court docket for ample evidence of this.  In October 2104 Seeger filed a motion with memorandum of law demanding an order that a group of former players identified as Faneca Objectors take down an informational website that presented their views of the settlement and reasons for objecting.  Their evaluations were quite similar to mine regarding the hockey settlement, yet no attorneys in that litigation have expressed any objections to a purely informational article.

The Objectors’ views in retrospect turned out to be a preview of the very issues that now threaten fair compensation to the players who joined the settlement, however Seeger’s pressure forced them to take down their site.

In February 2017 Seeger filed a motion with the court asking for an injunction to order a newsletter by retired player Fred Willis cease “improper communications with class members.”

I’ve seen some of Willis’s newsletters and didn’t see anything alarming.  He was skeptical of the BAP and advised players to seek a different route to a qualifying diagnosis.  He expressed opinions on the settlement as related to him by other members of the settlement class, which should be within the realm of journalistic privilege.

Seeger, however, attempted to link him with lawyers and/or litigation funders.  This really doesn’t make sense in that if Willis were giving detrimental information to players neither lawyers not litigation funders would profit from players who fail to receive a diagnosis.  Nonetheless, Seeger threatened that “if the Court determines that the misrepresentations had such an effect on Class Members as would require another Class Notice,” that Willis would have to pay for such notice.  I seriously doubt that one player working alone could have such a disruptive effect on the settlement, but I noticed from his filings that Willis was a pro se litigant and as such, it’s easy to believe he was overwhelmed.  In April Willis agreed to a stipulation that for all practical purposes silenced him.

Many other examples exist of Seeger lashing out at those who disagree with him.  In January 2014, Mark Fainaru-Wada of ESPN reported, that an attorney who was part of the negotiating committee wasn’t sold on the settlement’s benefits as publicly portrayed. “Thomas V. Girardi, said the settlement benefits severely impaired former players but leaves many others with barely “a handshake.” He said he was trying to determine which players to ‘opt out’ of the deal and continue litigation against the league.”  As I reported in April 2018, I’m in possession of an audio recording made shortly after the ESPN article broke in which Seeger refers to Girardi as a “big mouth” and admits to kicking him off the negotiating committee, stating, “he can’t keep his mouth shut…I put him in the dark, I did, because he was dangerous to the deal.”

Later, in November 2014 Patrick Hruby wrote for Vice Sports, “Times change. In late September, Girardi’s firm sent its former player clients a mass email that subsequently was shared with VICE Sports. The letter, signed by Girardi, advised every former player—in bold, underlined type—to accept the settlement. No exceptions. No individual evaluations. Nothing like the medical due diligence Girardi previously promised…Just a simple take the deal.”

This really isn’t surprising.  University of Georgia Law School professor Elizabeth Chamblee Burch writes in Monopolies in Multidistrict Litigation, her definitive paper on MDL’s, how the current structure of appointing the same plaintiffs firms to mass tort MDLs serves to cause these firms to “operate like a cartel.”  “This is only compounded by the fact that firms representing corporate defendants are also repeat players leading them to “continually achieve their goals in tandem—defendants end massive suits and lead plaintiffs’ lawyers increase their common-benefit fees. But this exchange may result in lower payouts to plaintiffs, stricter evidentiary burdens in claims processing, or more coercive plaintiff-participation measures in master settlements.”  This would probably qualify as one of the “unfounded speculations” that I’ve written about in Seeger’s view.  He probably prefers these observations remain within the academic community rather than the public at large.

Coincidentally, Professor Burch references Mr. Girardi in her article, “it’s clear that even less frequent repeat players in leadership roles fare quite well as evidenced by some of their lavish lifestyles—some have appeared in The Real Housewives of Beverly Hills and in magazine spreads alongside yachts and private planes.”[1]  Girardi’s reversal could easily be a result of this observation by Professor Burch, “leadership appointments—and the lucrative fees accompanying them—are conditioned upon cooperation and team play. So, even though plaintiffs’ attorneys are assertive and ambitious, their calculated response may be to silence their discord and achieve financial success by playing the long game.”

Space doesn’t permit a fraction of disparaging remarks Seeger has made on the public docket against attorneys who’ve dared to question him or the success of the settlement.  Attorney Craig Mitnick is but one of the attorneys who felt his wrath via the public docket.  In recent comments to Ryan Boysen of Law360 Mitnick said,  “Chris Seeger will go after anyone that criticizes Chris Seeger.  And he does so with a vengeance, and he does so in an unfair way.”

Mitnick also related to Law360 that he shares Tighe’s reservations regarding Judge Brody’s order, “She put a rubber stamp on the NFL’s gimmicks, and Pat was the only one who had the courage to try and address it.  This is not some sleeping horse, non-issue we’re talking about; those two words, ‘generally consistent,’ have become the most important two words in the entire settlement agreement.”

Mitnick is absolutely correct.  Other attorneys quoted in the Law360 article agreed.  I agree and I’ve written extensively on the subject.  When all is said and done this is the important matter that needs to be addressed and not glossed over.

Thursday evening Mr. Tighe responded to the NFL and Co-Lead Class Counsel objections.  He states, “The relief requested is squarely within the direction set forth in the Order,” and goes on to express that he wishes “to prevent manifest injustice.”  He reiterates the broadly based concerns, “Any change creating additional criteria that must be met under the ‘generally consistent’ standard further exposes Diagnosing Physicians to attack by the NFL and AAP.”

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Tighe asserts that “The Claims Administrator is not qualified to construct rules dictating how a board-certified neurologist identify the basis for his or her diagnosis,” and cites Seeger, stating, “the diagnosing physician is in the best position to assess whether his or her diagnosis is “generally consistent” with the BAP standard….”

This is essential.  Many players are skeptical of the BAP and even the MAF because of the way they’ve been treated by the NFL’s “neutral” disability doctors.  Players were persuaded to join the settlement because their lawyers believed that they would be fairly and perhaps less rigidly treated under the generally consistent standard.  The rigidity of the BAP and its interpretation by the AAP is what the NFL seeks.  In my opinion, which is shared by many others, the undoing of generally consistent would completely unravel the settlement for those suffering from dementia, and that means the majority of claimants to the settlement.  It has turned out to be a good deal for the most part for players suffering from ALS, Parkinson’s, and some with Alzheimer’s, but unless dementia claims are treated on equal footing, the settlement will “fail its execution” as Class Counsel Gene Locks wrote almost a year ago.

Tighe demonstrates the NFL is already making use of its “withdrawn” appeal.

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At best, any “administrative clarification” will preserve the status quo and the NFL will continue to appeal and claim diagnoses are not generally consistent with the BAP.  At worst, the NFL is given a BB-gun that it will eventually recraft into an AK-47 to shoot down all but the sickest players who need medical care before they plummet to the point of forgetting even their wives, who are spending their days cleaning up after incontinence sets in and trying to keep their husbands from self-harm.  Many are already consumed with the latter, especially when men become obsessed with their settlement claims and sink to dangerous levels of depression.

When I first began observing the settlement, I was completely neutral as to how it would unfold.  During the time I’ve kept watch, what once seemed “fair, reasonable, and adequate,” now resembles a hopeless maze for dementia sufferers.  It’s my hope that somehow Mr. Seeger will shed his pride.  He achieved a monumental settlement—if he can make it work.  When the audits cease and the NFL is stopped in its tracks and no longer permitted to impede awards, and only then, will it truly become successful.  It is my hope that he will at some point start listening to the voices of dissent and learn from them instead of seeking to silence them.

My response to Christopher Seeger:

[1] Citing: Amanda Bronstad, With a Smooch, Tom Girardi Makes Debut on ‘Real Housewives,’ NAT’L L.J. (Dec. 16, 2015), http://www.nationallawjournal.com/id=1202745063522/With-aSmooch-Tom-Girardi-Makes-Debut-on-Real-Housewives?slreturn=20160912185720

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