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Third Circuit Reversal of NFL Concussion Settlement Funding Advances has an Interesting Backstory

NFL Concussion Settlement FundersMay 3, 2019
Sheilla Dingus

Retired NFL players and their families may soon be asking “What happened?” when settlement funders start playing hardball to collect on their “loans” to players in amounts double or more the initial advance due to accrued interest.

On December 8, 2017, Judge Anita B. Brody of the U.S. District Court for the District of Pennsylvania issued an order voiding (almost) all agreements with funders who had advanced money to settlement class members in anticipation of their awards in the NFL Concussion Settlement. I’ll explain “almost” in a bit.

Judge Brodys Order voiding settlement advances

When the order was issued naturally retired players and their families, especially those who’d taken advances were elated, but I correctly predicted it was a bit too soon to take that sigh of relief.  Lenders, especially those of a predatory nature aren’t known for playing nice, and this was a district court ruling which could be appealed and was.  The lenders scored a touchdown at the Third Circuit when an April 26, 2019 decision vacated most of the order.

The unanimous opinion written by Chief Judge Brooks Smith for a panel that included Judges Michael Chagares and Stephanos Bibas commended Judge Brody for her “very able handling” of a complex class-action settlement but agreed that she exceeded her authority in voiding all agreements between players and settlement funders.

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The points addressed by the Third Circuit were appeals by settlement funders RDLegal, Atlas Legal Funding, and Thrivest Funding of three of Judge Brody’s orders; the December 2017 order voiding the contracts and a February 2018 order that directed the claims administrator regarding disbursement of funds, and a May 2018 which dismissed Thrivest’s complaint to compel a settlement class member to arbitration of his debt.  If you’re already familiar with the holdings of the Third Circuit, you might wish to jump ahead to the backstory, by clicking here.  If not, read on for a quick review of the appellate court’s decision.

The Third Circuit Opinion

To summarize the appellate court’s findings in the simplest terms, they reviewed the anti-assignment provision of the settlement agreement and maintained that Judge Brody does have the authority to enforce it.

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As brought out in the Third Circuit opinion as well as certain other filings in the settlement, clauses of this nature are typically designed to protect the defendant and prevent a third party from filing claims against that defendant.  If any of the contracts players entered into required the claims administrator to pay the funder directly, voiding the contract would have been within her authority, however, most if not all agreements do not attempt to bind the claims administrator, but rather the class member and his attorney after a monetary award has been issued, and these agreements are outside the scope of her authority.

The February 2018 Order

The February order denied the funders’ request to have the claims administrator withhold the disputed portion of a player’s monetary award until final disposition of the December order.  The Third Circuit ruled that Judge Brody is acting within her authority to direct the claims administrator to disburse funds in the matter she deems appropriate, explaining this is an administrative order rather than a substantive one.

The May 2018 Order

Thrivest had sought to arbitrate the disputed contract entered into with class member William White and Judge Brody denied Thrivest’s request for arbitration.

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The Third Circuit ruled that Judge Brody exceeded her authority in attempting to void the agreement between Thrivest and Mr. White in its entirety and that she did not have the authority to prevent Thrivest from enforcing its arbitration agreement.

Everyone’s a winner?

While the Third Circuit only partially reversed Judge Brody’s order, the appeals court found some of the lenders’ appeals to be untimely and didn’t rule for that reason, and her order was upheld only to the point of true assignment clauses that seek to collect directly from the claims administrator—none of which have been identified.

An article in The Legal Intelligencer by Max Mitchell quotes Raul Sloezen, who is representing Atlas as saying the Third Circuit, “gave Atlas everything they asked for.”  Thrivest’s attorney Peter Buckley indicated that he and Thrivest were “pleased” and “felt vindicated…especially as it concerns our client’s contract and arbitration rights.”

While every legal analysis of the Third Circuit’s decision viewed it as favorable to the funding companies, a view with which the funders’ attorneys agreed, oddly Chris Seeger is claiming victory as well in comments to Law360.

Seeger quote - Law360

Seeger has, strangely, seemed concerned about people making claims against the NFL, so he seems true to form in this statement.  But—in case he missed it—the funders aren’t making claims against the NFL, and they aren’t asking the claims administrator to enforce their contracts. Instead, the contracts stipulate that a player’s attorney disburse the amount due to a funder once the player’s settlement proceeds have been released to him.

According to Mitchell, “Co-lead counsel for the class, Seeger Weiss attorney Christopher Seeger, however, said that, although the lending companies ‘live to fight another day,’ the ruling was also a win for the plaintiff, and that language in the opinion bolsters arguments the ex-players may have in fighting enforcement of these loan agreements.”

In my opinion, prevailing on those arguments doesn’t seem likely since funding advances, for the most part, are not regulated in the way that banks are, and they typically operate in much the same way as payday lenders, that are considered predatory and usurious but legal, nonetheless, bolstered by a ruling by Southern District of New York Judge Loretta Preska, who dismissed claims against RDLegal filed by the New York Attorney General and the Consumer Financial Protection Bureau, in September 2018.

This leads us to the backstory…

Chris and the cookie jar

Chris Seeger and the Cookie Jar

In remarks to Mitchell, Chris Seeger said, “I’ve looked at enough of these to know that most, if not all, are assignments that, based on the ruling today, might end up voided.  The fight’s not over. … There’s a lot there to work with for retired players. It’s a victory for the class.”

A reasonable person might differ with him in declaring a victory for the class, especially since Law360 declared the funders’ attorneys “Legal Lions” for the week, but Seeger was truthful in stating that he’s looked at his share of assignment contracts.

Masterful scheme or colossal blunder?

On February 13, 2015—the day Chris Seeger filed the settlement—he contacted Craig Mitnick, a popular and charismatic attorney, who represented a large number of players to make a request.

Seeger email

Unknown to Mitnick at the time, Seeger served on the Board of Directors for Esquire Bank, but unlike traditional banks, Esquire was focused in large part on litigation funding.  Seeger asked Mitnick to assist Esquire in developing a funding program for retired NFL players as shown in a declaration dated May 1, 2018.

Craig Mitnick Declaration

Mitnick agreed to assist Esquire at Seeger’s urging, as supported through a long string of emails.  All the while, Mitnick was never made aware of Seeger’s position with Esquire Bank.  Around the same time, Seeger quietly approached other attorneys who represented players in the settlement to offer their clients an opportunity to receive settlement funding at a lower rate than most of Esquire’s competitors charged, all the while, failing to disclose his affiliation with Esquire

.On July 19, 2016, Seeger sent a letter to settlement class members informing them the settlement had survived an appeal to the Third Circuit and indicated that he hoped there would be no further appeals. (The objectors did petition the Supreme Court to hear the case, but certiorari was denied in December 2016). In the letter, Seeger encouraged class members to seek or shore-up diagnoses for the soon-to-become-final settlement and as shown in the excerpt, warned them of predatory lenders.

Settlement registration began the following January, and on July 16, 2017, Ken Belson of the New York Times released an article entitled, “After N.F.L. Concussion Settlement, Feeding Frenzy of Lawyers and Lenders,” in which he described how retired players awaiting settlements had been bombarded by funders wanting to loan them an advance on their anticipated recoveries.  “Some players may get very little, but others with severe neurological diseases may receive as much as $5 million. Now lawyers, lenders and would-be advisers are circling, pitching their services and trying to get a cut of the money,” Belson reported.

Enter Chris Seeger:

Seeger - NYT quote

At this time, Seeger’s ties to Esquire had still not been disclosed, but it was during this time that Seeger began doing battle against a long list of funding companies seeking to invalidate their funding agreements due to the fact that the players were cognitively impaired.  Was Seeger trying to help cognitively impaired players or eliminate Esquire’s competition and create a monopoly for NFL concussion settlement advances, or perhaps both?

In May 2017, Seeger resigned his position with Esquire Bank, as he became more aggressive with competing funders, but it remains unclear as to whether he continues to hold stock in the company or has other financial interests.

Whether Seeger’s actions were a masterful scheme or a colossal blunder is a matter of debate, but the end result would result in a windfall of cash for Seeger.

Judge Brody voids the funding agreements

As Peter Keating reported for ESPN:

Keating1

Despite this revelation, it went largely unnoticed because of the hurdles players were facing in seeing their claims approved.

On December 8, 2017, Judge Brody issued an order voiding all agreements between settlement class members and third-party funders.  Her decision was stunning, to say the least, since, from at least July 2016, when Seeger sent the letter to players urging caution regarding settlement advances, it was assumed by all parties that the agreements were legal and not prohibited by the settlement agreement.

Fuel for the fire

gasoline canIf all this was smoldering, largely unnoticed by anyone outside the litigation funding circle, aside from a round of applause for Judge Brody from class members who believed their financial obligations to the funders had been removed and a growing belief among those who suffered from dementia that the players who’d taken loans would be the only ones to receive any money, attorney Gene Locks would soon come by with a match and Seeger a can of gasoline.

As Keating reported:

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Because of the dire situation with dementia claims, Gene Locks declared the settlement to be “in danger of failing its execution,” through filing a motion seeking an administrative role in settlement implementation.  Almost two dozen firms quickly filed joinder in support of the Locks motion.

joinders

His supremacy over the settlement challenged, Seeger volleyed back at Locks and all who supported him in what he termed, “utterly meritless attempt to usurp Co-Lead Class Counsel’s oversight of the Settlement’s implementation.”  After a 13-page review of what Mr. Seeger deemed to be his own exceptional work, he accused Locks of acting like a “Monday morning quarterback,” with ” actions that are simply at odds with the Settlement Agreement and good sense.”

Seeger then sought to impugn the integrity of Locks and all who joined him.  He dug all the way back to 1989 for a case in which Locks was a trustee removed for inexperience painted to look as maleficence.

Seeger attacks Locks

In these statements, Seeger, perhaps unwittingly shows that his allegiance is to an agreement with the NFL more so than the individual players he was appointed to represent, and therein lies a major conflict of interest.  Another conflict of interest rests in the fact that Seeger negotiated common benefit fees directly from the NFL, from which he has (and will continue to receive the lion’s share) and his recoveries are not tied to player recoveries as with attorneys who represent a large number of individual players.

This particular argument comes across as problematic and hypocritical, considering Seeger’s involvement in the funding business.

seeger opposition2

Not only did Seeger pursue Locks but most of the firms that joined with him.

seeger opposition3

I often say, “the Devil’s in the footnotes,” and this one produced its share of heat.

Seegers fiery footnote

You might even say this is the footnote that lit the fuse, since as noted previously, Seeger personally solicited Craig Mitnick to work with Esquire Bank in developing funding for players.

After this was filed, Mitnick responded with a stinging letter to the court, denying affiliation with Thrivest outside signing off on two advances upon his clients’ request and procurement of litigation funding for his firm to aid in managing expenses as he worked and traveled to promote the settlement at the behest of Seeger. Accompanying the letter were the emails in which Seeger solicited Mitnick to work with Esquire Bank.

Curiously, Mitnick’s letter was sealed by the court in short order and on information and belief, Mr. Mitnick has never received a satisfactory response as to why his filing was sealed against his wishes.

Ignition

If Seeger’s footnote and Mitnick’s response lit the fuse, three orders issued by Judge Brody kept the spark traveling toward ignition.

On March 28, as the joinder motions were multiplying rapidly, and one day prior to Seeger’s filed response to the Locks Motion, Judge Brody issued an order requiring all attorneys seeking a share of the common benefit to submit declarations detailing any involvement they may have had with a settlement funder and any contracts with a third party lender their clients had entered into.

On April 2, 2018, Judge Brody abruptly closed the window to file joinder with Locks as requested in Seeger’s response setting a one-day deadline of April 3.  One pro se class member, who has since requested anonymity attempted to submit a joinder that was Fed-Ex’d to court and with confirmed delivery on April 3, but it was strangely suppressed from the docket.

On April 18, 2018, Judge Brody denied the Locks Motion, praising the work done by Seeger, and finding Locks disqualified in part for his role in “facilitating” settlement advances, “The Locks Firm’s role in facilitating Third-Party Funding Agreements to Class Members prohibited under the Settlement Agreement. This undermines any claim by the Locks Firm that it would be able to faithfully administer the Agreement.”

The March 28 order which at first seemed merely strange, now seemed threatening in view of Seeger’s accusations, the sealing of the Mitnick letter, the abrupt joinder cut-off, and finally Judge Brody’s reasoning in denying the Locks Motion.

Attorneys began filing their declarations and disclosures on the ancillary docket as instructed, each clearly stating that they’d merely performed their ethical duty to carry out a client’s directive after warning of the danger of predatory lending and how settlement advances can balloon.  They also pointed to their belief that advances were not prohibited until the issuance of Judge Brody’s December order which stated they were. No agreements were entered into after that date.

At least two attorneys submitted Seeger’s July 2016 letter that implied class members could, but probably shouldn’t enter into a settlement advance agreement, and provided nearly identical assignment prohibition clauses from other settlements in which third-party funders were not barred from entering into agreements with class members.  They explained that clauses of this nature are typically included in settlement agreements to protect the defendant from claims filed by a third-party, and not for the protection of class members.

BOOM!

BOOM!Whether intentional or not, the information filed by attorneys seeking to defend themselves from Seeger provided all the ammo necessary for the attorneys for the litigation funders, Thrivest, RDLegal, and Atlas to support their claims to at the Third Circuit.  At a July 11, 2018 hearing, with a funder who was attempting to collect on the agreements Judge Brody voided, she seemed slightly confused regarding the provisions of her December order which offered rescission to funders who would agree to the return of their principle without interest but could not mandate they do so.

Seeger Weiss attorney TerriAnne Benedetto had to remind the judge that the funders must first agree to rescission and that the players might or might not receive a monetary award from which the funder would be paid.

transcript

It’s unclear if Judge Brody was misled to believe that the funding arrangements were set up to collect directly from the claims administrator or just how well informed she was regarding the funding arrangements.  From appearances, it appears she did what she felt was in the best interest of the class based on the urging of Chris Seeger, who more than likely provided the blueprint upon which she based her order.

Funds aflame?

money burningThe NFL agreed to pay $112.5 million for common benefit funds to compensate class counsel outside the scope of awards to injured players.  While most class members welcomed the news that class counsel’s compensation would not be deducted from their potential awards, the arrangement hasn’t been ideal.

Since Seeger’s compensation is tethered to his cooperation with the defendant, rather than the recovery for the class, a conflict of interest is inherent.  And—while Chris Seeger and his firm are reaping by far, more than all other counsel in the settlement combined, his demands for an additional 5% of each award seems excessive, and was even deemed to be so by the court-appointed expert, Professor William Rubenstein, whom Judge Brody asked to evaluate and weigh in on attorney compensation.

Professor Rubenstein felt that $112.5 million if used wisely and invested, could cover class counsel fees for the 65-year duration of the settlement.  Rubenstein also recommended capping private attorney fees at 22% and though he felt deducting 5% from each player’s award was unnecessary, he recommended, should the court deem otherwise, that the 5% comes from the private attorney’s fee if the player is represented by counsel.

Over 20,000 players enrolled for the settlement and in just over two years, almost 2,800 claims have been submitted.  According to attorney Gene Locks, approximately 500 players appear to have entered into an agreement with a settlement funder.  Oddly, after Judge Brody’s admonition for Mr. Locks’ alleged “facilitation” of advances, she appointed him to negotiate with litigation funders on behalf of the class.

Locks2

On May 24, 2018, Judge Brody awarded attorney fees for common benefit work done prior to the settlement effective date in the amount of $85,619,446.79, leaving $22,823,253.33 in the common benefit fund.  Of this amount, Seeger received $51,737,185.70, with the remaining $33,882,261.09 split among 26 other firms.

In his first post-effective date fee petition Seeger asked the court for $9,485,424.01, $8,559,179.97 went to his own firm.  Much of his work seemed focused on the third-party funder issue, “Seeger Weiss has spent and will continue to focus significant, high-level attorney resources in briefing and arguing these motions and appeals,” he wrote. The remaining balance in the common benefit fund: $13,337,829.32.

post-effective date fee petition1

On January 18, 2019, Seeger filed his second post-effective date fee petition.  This time he requested $3,195,634.43, $2,701,569.41 of which is allocated to Seeger Weiss.

post-effective date fee petition2

The latest request, if approved will leave $10,142,194.89 to fund attorney fees for the remaining 63 years of the settlement.  While Seeger was long on highlighting his own work he gave little credit or clarification regarding the work of his colleagues, however, on information and belief, the fees allocated to Levin, Locks, Nast, Issacharoff and a substantial portion of Seeger’s $11,058,470.38 in fees are related to the settlement funding issue. In estimating 20% of Seeger’s fees as funding related, and adding in the fees of other attorneys believed to be working on the issue,  the estimated cost to litigate the funding issue is roughly $3.3 million.

Attorney Lance Lubel filed an opposition brief after the second fee request asking for Judge Brody to delay in granting the request citing the dire state of the common benefit, which he predicted will be exhausted in another two years.

Lubel1

Lubel argued that within two years, at the current rate of spending, the 5% holdback from players’ awards would have to be used to supplement the common benefit.

Unfortunately, as I indicated in an article detailing Lubel’s findings, outside Lubel’s suggestion of reducing the billing rates, given the NFL’s scorched earth battle against nearly every bargained for benefit for players, coupled with Seeger’s war against the litigation funders which, doesn’t seem deterred by the loss at the Third Circuit, based on his recent comments to media.

Whether Seeger has any remaining ties to Esquire Bank is unknown, and while Esquire doesn’t charge quite the exorbitant interest of some of the other settlement funders, their assignment clauses are written in the same way, yet advances made by Esquire Bank were exempted from Judge Brody’s order.

Esquire Bank exempted

Numerous class members entered into agreements with Esquire Bank as a result of Seeger’s marketing.  While it’s unknown if, or how much he may have profited from these advances, it’s clear that he’s profited by litigating against Esquire’s rival funders.

While settlement advances tend to be predatory in nature and, in my opinion, should be regulated, they are legal, but unfortunately, sometimes necessary when a plaintiff is in dire need with no traditional credit available.  So far, it appears approximately $3.3 million of the common benefit has been spent litigating a non-issue since the agreements submitted and entered into by approximately 500 players are not true assignments but rather agreements that must be paid by attorneys after a player’s award is issued.

Perhaps the money could be better spent opposing the NFL to ensure that the 1,700+ and counting players with dementia are not treated as criminals when they file their claims.

Editor at Advocacy for Fairness in Sports | Website

Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.

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