NFL Concussion Settlement
Permanent link to this article: https://advocacyforfairnessinsports.org/nfl-concussion-settlement/
The NFL has shown time and again that it’s a leopard that never changes its spots. In response to an appeal by a nine-year defensive lineman who was diagnosed with severe dementia at the young age of 33, the NFL has continued to repeat the same numbing refrain that it has for the better part of three years in its quest to stop dementia claims in their tracks, especially the claims of younger players, whom the NFL doesn’t want to admit are damaged, nor does it want to pay the high-dollar awards that younger claimants qualify for.
How can any message the NFL sends on social injustice be taken seriously when they endorse a policy in the Concussion Settlement that presumes African Americans are inferior to Caucasians? A recent study done by a law firm indicates that 3.4 TIMES as many African American players might qualify for an award if race norming [the inclusion of race in score calculations for Level 1.5 and 2.0 claims] was removed from the Settlement.
Courtroom or Leopard Lounge? When you consider the NFL and its highly paid Paul Weiss lawyers are the symbolic leopards in this picture it’s really hard to tell the difference. There’s an adage among lawyers that says, “If the facts are on your side, argue the facts. If the law is on your side argue the law. If neither the facts nor the law is on your side, yell the loudest.” Brad Karp and Bruce Birenboim of Paul Weiss have refined the latter to an art in their representation of the NFL, along with developing mastery in deflecting away from the real issues their opponents raise while reiterating a one-sided refrain that repeats over and over until the officers of the court are sufficiently programmed to sing along.
Perhaps nothing illustrates this better than their latest briefing in the Amon Gordon appeal.
In December, three NFL Concussion Settlement Status Reports were released; one by the Special Masters, one by the Claims Administrator, and one by the BAP Administrator. The reports provide a number of insights into the settlement both in the plain text and between its lines. I’ve been analyzing the three reports and crunching some additional numbers.
I first began following the Gordon case over two years ago in June 2018, though at the time I was unaware of the player’s identity. I became aware of the case when attorney, Wendy Fleishman of Lieff Cabraser objected to the inexplicable denial of Amon Gordon’s thrice approved claim…
As it turned out, the excruciating delays for Gordon and his family turned out to be a gift in that all of the lag-time allowed Fleishman to investigate and find her own answers as to the question of “Why?” since the Claims Administrator, Special Master, and Court refused to provide the basis of their denial. Perhaps now we know why they evaded– because the explanation is highly disturbing.
Amon Gordon is Black.
Quietly and curiously off the public docket, the Concussion Settlement Court revised its rules regarding third-party settlement advances. As you may recall, late last year, Funder Thrivest, petitioned for a writ of mandamus at the Third Circuit, asserting that Judge Brody had not complied with the mandate handed down by the Third Circuit Opinion a few months prior.
While the issues surrounding dementia claim difficulties continue to be shrouded in mystery, settlement funder issues in the NFL Concussion Settlement have presented a more visible face, and the face at the center of the drama is that of William White.
Power struggles between settlement funder Thrivest, settlement administration and the court(s) have left players who took advances from Thrivest Specialty Funding in seemingly no-win knot that threatens to nullify their settlement awards should they manage to navigate the road of red-tape and receive one. The most recent ramifications of this point to two former players who’ve been sanctioned and stand the risk of jail time should they continue to fail to comply with an arbitration mandate that requires them to place disputed funds in escrow.
On Friday, Judge Anita B. Brody of the Eastern District of Pennsylvania entered a brief that could be described as a “tap dance” as she seeks to avoid Third Circuit scrutiny following a petition for writ of mandamus directed at her handling of settlement advances.
A few days I wrote that a litigation funder is seeking a writ of mandamus at the Third Circuit, asking the appeals court to enforce their Opinion and mandate. Petitioning for a writ of mandamus is viewed as an extraordinary measure, and as such, it is considered bold and used infrequently. The Third Circuit wasted no time in seeking answers from NFL Concussion Settlement Judge Anita B. Brody.
The issue of settlement funding and claim advances in regard to the NFL Concussion Settlement continues to become more and more bizarre. On September 19, Thrivest Specialty Funding petitioned the Third Circuit Court of Appeals for a writ of mandamus, asking the appellate court to enforce their mandate.
Considering Judge Anita B. Brody’s numerous questionable decisions tilting the Concussion Settlement in favor of the NFL, it’s nice to report a departure from the norm. In an objection that managed to fly under the radar until an “implementation decision” was rendered, on August 20, Judge Brody rejected the NFL’s junk science pitch in regard to an Alzheimer’s claim.
Last week Judge Anita B. Brody denied a motion filed in February by attorney Patrick J. Tighe filed asking the court to limit audits on concussion settlement class members to one per claim, as many of the players he represents emerged from one audit only to be plunged into another shortly afterward. Whenever a claim enters an audit, processing of the claim stops. The claims administrator requests whatever information he feels is relevant to the audit and interviews doctors and pretty much puts every aspect of the claim as well as every person associated with it under a magnifying glass with no timetable for completion of the audit.
Amon Gordon was a defensive lineman for 9 seasons in the NFL, shuffling from team to team as his injuries began to accrue. He never entered the higher echelon of the pay NFL pay scale and often worked for league minimums as he battled through surgeries for various orthopedic injuries and rehab became a way of life. What did he get for his time in the NFL aside from a whirlwind tour of 11 cities with repeat stops in Nashville and Seattle over the course of his 9 years in the league?
On Tuesday, in response to a show cause order asking why the Third Circuit should accept a concussion settlement claim appeal, Wendy Fleishman of Lieff Cabraser filed two briefs supporting her client Amon Gordon and opposition responses were filed by the NFL and Lead Class Counsel Christopher Seeger. As you might expect the briefs were a bit on the dry side since purely legal issues were addressed as opposed to delving into the merits of the case, and I’ll recap the legalese in a bit, but first, I’ll look at an issue that’s anything but “dry.”
On August 30, NFL Concussion Settlement Special Masters, Claims Administrator BrownGreer, and BAP Administrator Garretson Resolution Group released status reports that shed insights into the present state of the concussion settlement. The Special Masters report was the third to drop and the shortest of the reports but gave a lot to unpack, so I’ll begin there.
On August 28, the Securities Exchange Commission (SEC) filed a complaint in the Northern District of Florida detailing unbridled fraud against cognitively impaired retired NFL players by a lawyer who once represented them.
Imagine you’re watching an old spaghetti western set in a town run by an aging saloon girl. A gang of gunslinging robbers have taken up residence in town but the saloon girl enjoys their flattery and tells the sheriff to “let them be,” and aside from an occasional flash of bravado he mostly does as he’s asked. There a subplot running in which a greedy banker is foreclosing on most of the widows in town and those whose husbands have been shot down by the band of outlaws and lay incapacitated. Those who resist the outlaws’ demands find their homes burning to the ground. The movie’s been running for two hours now and you’re wondering the cowboy in a white hat is going to ride in and restore order. Or will he?
Update: Only Westport settled with the NFL in regard to liability for concussion settlement claims. An oddly worded stipulation was the souces of the original presumption that all insurers had settled.
As a result of Judge Brody’s orders restructuring the MAF program, all but eliminating the settlement’s provisions and protections for pre-effective date claims, and narrowing the generally consistent standard to a hair-thin line, the claims administrator has developed new forms that whether or not by design, will lead players into a trap the NFL has long awaited.
This is not an exaggeration. In an investigation that Advocacy for Fairness in Sports has been pursuing for the past two months, we’ve finally obtained evidence of the NFL’s latest bid to stop dementia claims in their tracks and to once and for all, put a lid on the uncapped settlement purposed to compensate players suffering from latent brain injury.
The NFL is seeking to permanently disqualify players from the settlement program and pursue criminal fraud charges against them if they feel they have “evidence” of a player misrepresenting any details of his condition.
Last Friday, Locks Law Firm, on behalf of itself and thirteen other appellants, filed a 68-page brief contesting Judge Anita B. Brody’s allocation of common benefit attorney fees to the Third Circuit.
Down on his luck after retiring from the NFL following a 2001 Super Bowl win, and now in his mid-40s, Larry Webster listened carefully as a lawyer in Tallahassee, Florida, told him that he was guaranteed a 6-figure check from the newly inked NFL Concussion Settlement. The plight of Webster and numerous other retired NFLers is told in extraordinary detail in an investigative report by Law360’s Ryan Boysen.
In a surprise order that appeared on the docket July 15, Judge Anita B. Brody appointed Philadelphia defense attorney Susan Lin “to advise the Court regarding the protection of participants’ rights in the investigative process.”
On July 12, Daniel Kaplan of the Athletic reported on a staggering drop in profits for the Green Bay Packers as revealed in their 2018 Financial Report.
This was a huge departure from the prior financials, in which the team gained $75 million in profit from operations in 2016 and $65.3 million in 2017. Since the publicly owned Packers are the only team required to release financial reports, their reports have often been viewed as a barometer for the NFL as a whole. The NFL Concussion Settlement was cited as one of their increased expenses.
On Friday Thrivest Specialty Funding filed a letter to Judge Brody inquiring as to why the Claim Administrator isn’t in compliance with a Third Circuit mandate.
On July 2, the same day Judge Brody issued a final denial to the Gordon family’s thrice approved, and then denied settlement claim, Chris Seeger sent an emailed letter to the class of retired players…
The next paragraph, however, is a departure from Seeger’s normal mode of communication and I feel it’s the most important paragraph in the letter—possibly the most important piece of information he’s presented to the class of retired players in the entire history of the settlement.
If there’s one thing consistent about the NFL, it’s their passion in denying benefits to former players. Roxanne Gordon described how the NFL fought and fought until her husband Amon’s thrice approved claim was denied when the NFL was given a 4th bite at the apple, and then backed up with a final denial by Judge Anita B. Brody on July 2.
Judge Brody’s order was cryptic at best, alluding to references that were no where to be found. She did not attach supporting documents with the arguments she viewed just as she didn’t in two rulings on June 13, which I wrote about shortly afterward. The article had barely been published when I was contacted by Kendra Stabler Moyes, daughter of beloved Raiders quarterback Ken Stabler, to tell me one of those denials was her father’s claim. Now the family affected by Judge Brody’s most recent ruling has come forward.
“League of Denial” took centerstage at a hearing last Friday between the NFL and its insurers, according to Daniel Kaplan of The Athletic. Richard Pratt, one of the attorneys representing the insurers gripped a copy of the groundbreaking 2013 book, and placed it on the insurers’ table during the 75-minute hearing in which the insurance companies argued to obtain the discovery the NFL has evaded for seven years.
On Thursday, Judge Anita Brody ordered former Rams and Redskins safety Toby Wright to arbitration with Thrivest Specialty funding. That she ordered the player to arbitration isn’t surprising considering an April 26 ruling by the Third Circuit, vacating her ruling that enjoined Thrivest from pursuing arbitration against a different player and her dismissal of Thrivest’s complaint against him, the tone of her order is somewhat curious.
Last week, Judge Brody issued rulings in three individual appeals, and in each instance, the appellee prevailed. In this instance, two appeals were players who sought to reverse denied claims and in the other, the NFL sought to kill an approved claim.
In a motion filed on June 4, attorney James Acho, implores the court to release the 5% holdbacks that have been deducted from every paid award since claims processing began for the NFL Concussion Settlement.
Three status reports were released on Monday, detailing various aspects of the NFL Concussion Settlement; one each from the Special Masters, Claims Administrator, and BAP Administrator. The reports provide a great deal of information, and the BAP report is especially revealing.
On Friday, Judge Anita Brody issued an order firing all class counsel not named Christopher Seeger.
The reasons stated in the order appear to be a smokescreen in that no class counsel are paid unless assigned work by Chis Seeger or Judge Brody.
Transferee judges like Anita Brody have a tremendous amount of power in the MDLs assigned to them, so why don’t they monitor for deals that disadvantage plaintiffs? Or should that fail, why don’t attorneys who do have a vested interest in plaintiff outcomes object more vigorously? The answer lies in a strangely balanced power dynamic that sometimes resembles a “game of thrones.”
The NFL Concussion Settlement is going off the rails and the issues are systemic. Problematic from the start, collisions between player interests and the interest of the NFL have steadily accelerated with the NFL prevailing in most instances. Judge Brody’s latest ruling, severely restricting players’ choice of doctors, and adding extra layers of scrutiny to an already burdensome process while changing the entire dynamic in favor of the NFL has finally derailed what was once seen as a beacon of hope to suffering retirees and their families.
If there was any doubt previously, an order issued by Senior Judge Anita B. Brody of the Eastern District of Pennsylvania on May, 16, removes what lingering doubt may remain that the so-called NFL Concussion Settlement is about compensating brain-damaged players. In her order, she denied a motion for reconsideration of rules that will severely inhibit the compensation of impaired players, instead focusing her attention on protecting the NFL from alleged fraud.
About the only thing that the claims administrator and class counsel seemed to agree on at an April 7 hearing on changes related to MAF Physicians was that more doctors are needed to examine players for benefits in the NFL Concussion Settlement, and an April 10 submission by Locks Law Firm demonstrates how doctors have been blindsided leaving a void for retired player exams.
“This is very personal to me,” said Gene Locks as he made his opening statement in an April 7 hearing of his motion for reconsideration of some newly adopted measures that will be extremely detrimental to retired NFL players with dementia, as they submit claims in the concussion settlement. Locks explained that he once played football and sometimes thinks, “what if.”
With a hearing scheduled for May 7, Claims Administrator Orran Brown filed a defensive response on Friday evening, to Class Counsel’s motion for reconsideration of Judge Brody’s order adopting his newly created rules governing MAF physicians in the NFL Concussion Settlement.
“The April 11 Order imposes substantial amendments to the Settlement Agreement that are adverse to the Class and benefit the NFL.” Attorneys from Locks Law Firm, Podhurst-Orseck and Anapol Weiss wasted no time in getting to the heart of the matter in a recent motion for reconsideration of Judge Brody’s April 11 order.
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 Friday the Third Circuit Court of Appeals delivered a precedential ruling regarding a district courts authority over third-party settlement funders. As a result of the ruling, many NFL settlement class members will once again find themselves on the hook for advances on their settlement awards.
While the NFL has waged a relentless war on the class action settlement claims, it seems willing to negotiate to get the opt-out claims done and out of the courthouse.
“She’s gone too far now.” This response reverberated as strongly as a blast at ground zero because it came not from an attorney who frequently laments the difficulties of the NFL Concussion Settlement, but rather a voice seldom critical of Judge Anita B. Brody
I contacted numerous attorneys, asking for their impressions of Judge Brody’s newly imposed restrictions …
In the high-stakes volleys and counter volleys to determine whether or not NFL Concussion Settlement claims can be audited multiple times, both Claims Administrator Orran Brown, and Pat Tighe of X1 Law have submitted final briefs to the Court.
Orran Brown’s 28-page response to Patrick J. Tighe of X-1 Law’s motion seeking court intervention for multiple audits of a single settlement claim is very instructive although possibly not in the way Mr. Brown intended.
After a slow period of docket activity, the NFL and its insurers are slugging it out in the Supreme Court of New York as the insurers seek to learn what the NFL knew regarding concussions and brain injury and degree of related deception to players and themselves.
In a 28-page response to Patrick J. Tighe of X-1 Law’s motion seeking court intervention for multiple audits of a single settlement claim, Claims Administrator Orran Brown asserts that he has the right to audit a claim as many times as he deems appropriate.
On February 15, Claims Administrator Orran Brown of BrownGreer released his fourth status report on the state of the NFL Concussion Settlement. The first topic addressed is monetary awards. Brown states that the date for submission of pre-effective date claims has now passed. He says that
Benjamin Franklin famously said, “In this world, nothing is certain but death and taxes.” In my “settlement buster series,” I’ll be taking a closer look at three things that can derail what appears to be a lucrative settlement, liens, bankruptcy, and taxes. Part 1 focuses on taxes.
Late Sunday night, a motion dropped on the NFL Concussion Settlement docket outlining repeated audits of the same claims and requesting court intervention.
No journalist wants to be the subject of her own story, but here we are in 2019, and life is indeed 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.
While the NFL Concussion Settlement is fund for payment of claims to for compensation of former player suffering from neurocognitive impairment, the fund for class counsel compensation is not. While the NFL is acutely aware of what it’s spending, and fighting claims with a fury, Co-Lead Class Counsel Chris Seeger seems to take no issue with spending with abandon. In a motion filed Thursday, attorney Lance Lubel asks the court to deny Seeger’s most recent fee petition and put him on a budget before there’s no money left.
On January 22, attorney Patrick Tighe of X1 Law filed a motion asking Judge Anita Brody to reconsider her recent ruling on the generally consistent concussion settlement provision.
Reprinted with permission. Article in Texas Neurological Society newsletter, questions diagnostic criteria for dementia diagnoses and urges NFL to use the opportunity the settlement presents to study brain injury in its population.
To recap the latest developments in the strange world of the NFL Concussion Settlement, four events require closer examination. The NFL’s unexpected withdrawal of a bombshell appeal; the subsequent cancellation of the hearing on that appeal, Co-Lead Class Counsel Chris Seeger’s victorious PR campaign, and Her Honor, Judge Anita B. Brody’s substantive ruling on a mooted appeal.
A hearing to decide the fate of the one of two paths of qualification for monetary awards in the oft-heralded but largely problematic NFL Concussion Settlement was scheduled for January 10. On January 9, it was cancelled and announced that the NFL had withdrawn the appeal that prompted the hearing. Co-Lead Class Counsel Chris Seeger proclaimed victory over the NFL and its “meritless appeal,” but in reality, the NFL got everything it asked for and more, so there’s pause to consider if someone was behind a curtain and how things sometimes are not what they appear to be.
January 9, 2019
Sheilla Dingus To summarize today’s update in one sentence: the hotly anticipated NFL Concussion Settlement hearing on the NFL’s appeal of generally consistent was cancelled. I had driven about three-quarters of the way to Philadelphia when I got word that the hearing was off. I just …
There are lots of recent developments in the NFL Concussion Settlement, so I wanted to get a quick piece out so you’ll have the most recent information in one place.
After months of NFL demands for a fraud investigator for the concussion settlement, and an initial deferment on the decision by Judge Anita Brody, on September 12, she granted the NFL’s motion after an unexpected reversal of position by Special Masters, and on December 10, ordered the appointment of former Eastern District of Pennsylvania judge Lawrence F. Stengel.
On January 2, Judge Anita B. Brody issued an order scheduling a hearing to finally determine the fate of the settlement’s “generally consistent” standard, and with it the fates of hundreds, or possibly thousands of retired NFL players. This is the first record of the issue on the public docket, however the preliminaries leading to the hearing began in the summer of last year.
NFL ‘Goes for a Strike’ on ‘Generally Consistent’ Concussion Settlement Claims; Co-Lead Counsel Counters
For nearly two years the NFL has been seeking ways to knock down settlement claims one-by-one like stray bowling pins. In their latest move they’re going for a strike in order to shut down most future claims by retired NFL players suffering from brain injury by revising the terms of the agreed upon settlement.
While findings of fact on the part of the court-appointed Special Masters are not appealable under settlement terms, the NFL has filed an illegal appeal and convinced the court to grant a stay on payment of claims as it seeks a decision altering the settlement agreement.
On November 14, Eastern District of Pennsylvania Judge Anita B. Brody issued an order staying payment of 17 monetary awards to retired NFL players pending the outcome of an NFL appeal; her decision, however stands to impact every single claim filed in the concussion settlement, moving forward.
EXCLUSIVE: Last week, while requesting a stay on payment of claims, the NFL stated intent to appeal the NFL Concussion Settlement’s Special Masters ruling on “generally consistent.” The off docket appeal, obtained by Advocacy for Fairness in Sports was filed on November 7, escalating a volatile disagreement as to how non BAP claims and claims appeals should be handled. Judge Brody’s ruling will determine if the settlement will achieve its goal of compensating former players who’ve suffered brain impairment, or if it will instead, “fail its execution,” as Class Counsel Attorney Gene Locks phrased it in motion filed in March.
Word has it that current NFL strategies to disqualify players from the concussion settlement can involve blaming the symptoms and effects of Obstructive Sleep Apnea (OSA). The NFL seems to be approaching this from the perspective of saying that OSA can mimic the same symptoms and problems of repeated concussive head trauma.
Special Masters Ruling on ‘Generally Consistent’ Opens Door for Cautious Optimism for NFL Concussion Settlement Claimants
EXCLUSIVE: Advocacy for Fairness in Sports has obtained a non-public opinion by NFL Concussion Settlement Special Master Wendell Pritchett regarding application of the term “generally consistent” as referenced in the Settlement Agreement.
On August 31, I reported on a ploy by the NFL to kill a number of dementia claims dead in their tracks, as revealed in non-public documents obtained by Advocacy for Fairness in Sports. The documents consisted of three letters to Special Masters in which the NFL sought compulsory review of approved claims by Appeals Advisory Panel members and Appeals Advisory Panel Consultants. At the center of the dispute were twenty-three dementia claims but the collateral damage the NFL sought to inflict was far-reaching. Because the documents were not filed on the public docket, neither the public, the class member, and in all probability even their attorneys were aware of a potentially deadly storm brewing behind the scenes. On October 9, the attorneys representing the players received an email from the claims administrator with a decision from the Special Masters denying the NFL’s request for a stay of payment on the twenty-three affected claims.
Despite limited data to work from it appears that settlements are being reached for opt-out claims against the NFL. The first indication came on September 4, when ten-year Patriots veteran Ted Johnson and the NFL agreed to stipulation of dismissal with prejudice of his lawsuit against the league.
On October 29, in a letter and appeal to Judge Brody, the NFL launched its most vicious attack yet on settlement claims. The off the docket filings obtained by Advocacy for Fairness in Sports confirm the strategy of “if at first you don’t succeed, try, try again until someone believes you,” as I alluded to in a previous article detailing the NFL’s efforts to crack down on dementia and Alzheimer’ claims.
On Wednesday, Judge Brody issued an order that will likely be the death knell to most dementia claims in the NFL Concussion Settlement after the Special Masters in charge of settlement operations made a request to the Court. In April, the NFL filed a motion requesting a special court-appointed fraud investigator, claiming that massive fraud was holding up valid claims. A hearing on the motion was held in May, and on July 18, Judge Brody issued a notice stating that she would defer ruling on the motion unless either Claims Administrator BrownGreer of the Special Masters made the request. I was present at the hearing and it seemed that the Claims Administrator and Special Masters were opposed at the time. No reason for reversal of that opinion was stated in the Special Masters’ request, leaving one to speculate as to their changed position.
Two weeks ago I reported on a disturbing development in the NFL Concussion settlement after acquiring an email that revealed the off-the-public-docket war the NFL is waging against dementia claims and in so doing attempting to alter the terms of the billion dollar-plus agreement. The email, which was sent to attorneys representing twenty-three players whose settlement awards were approved, appealed by the NFL, and affirmed by Special Masters on the appeal, reveals the NFL’s attempt to appeal these awards yet again, demanding review by the AAP panel of doctors established to assist Special Masters in certain instances, and at their discretion. The NFL’s demand, if granted will not only impact the twenty-three players whose twice approved awards hang in the balance, but every player who has a pending claim filed, or will in the future, file a claim for a monetary award.
Exclusive: Advocacy For Fairness in Sports has obtained non-public concussion settlement documents which provide a glimpse into the NFL’s latest attempt to put the screws to players hoping to hold the league accountable for diagnosed neurocognitive damage sustained during their football careers. On August 30, the following email was sent to several attorneys representing players from Claims Administrator BrownGreer.
According to ongoing and recent NFL concussion settlement filings, a ruse of epic proportions threatens to devastate some former players who found themselves caught in an intricate web of deceit.
There’s a $500 million pitcher of Kool-Aid making the rounds and numerous people including many in the media have been consuming it in unhealthy quantities and risking credibility in doing so. Recently Co-Lead Class Counsel for the NFL Concussion Settlement, Chris Seeger, mixed up an especially sugary batch…
Judge Hurls Lone Pine Order at NFL Concussion Settlement Opt-Outs. Could this be an axe to their cases?
True or False? The Constitution of the United States of America guarantees every injured party his or her day in court? You’d have been correct with either answer. While the Constitution does make that guarantee, other laws and pleading rules tend to cloud it. That’s the situation players who opted out of the NFL Concussion Settlement are looking at due to a recently filed order.
“Though it is not perfect, it is fair,” was the opinion handed down from the Third Circuit Court of Appeals in April 2016, when the appellate court ruled in favor of the Settlement designated to compensate retired NFLers for brain injury that was approved by Judge Brody in almost a year earlier in 2015. While a group of players appealed the Third Circuit’s decision to the Supreme Court, in December 2016 the High Court declined to hear the case, finalizing the Settlement with player registrations beginning in January 2017 and claims submissions in March of that year. A year and a half into settlement implementation the Settlement has been plagued with problems and controversies, not the least of which are low dementia claim approvals, and NFL allegations of widespread fraud for which it seeks a special investigator. Attorneys for the players dispute the pervasive fraud alleged by the NFL, a problem largely of their own making, but these are not the only areas where controversy exists. Like a boomerang, two of these controversies have made their way back to the Third Circuit…
NFL asks the Concussion Settlement Court for a fraud investigator with authority of subpoenas and compelled testimony
Last Wednesday the NFL presented arguments urging Judge Brody to appoint a special fraud investigator in the troubled Concussion Settlement, in which as of May 29, only eleven dementia claims have been paid.
Who’s defrauding whom? The NFL has decried massive fraud in the much-heralded uncapped settlement purposed to compensate retired NFL players for brain injuries but far from living up to its promise, HBO reports in a May 22 segment, “only ten percent of players who’ve filed claims for payment have received any money. That includes only one percent of all claims for dementia. One percent.”
Andrew Brandt has famously stated, “there will be lawyers,” but it remains to be seen how many will be left standing as struggles over settlement implementation go scorched earth, leaving room for doubt as to whether or not retired players suffering from brain injury will ever see the compensation they were promised.
One of the unlucky Friday the 13th filings in the largely failing NFL Concussion Settlement was a motion by NFL Counsel Brad Karp requesting appointment of a special fraud investigator.
In the largely private world of class action and multi-district litigation settlement implementation one has reason to question the efficacy for plaintiffs versus the defense of settlements which often seem more valuable to defendants than those they were designed to compensate. A prime example of this is the much-heralded NFL concussion settlement.
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.
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.
On Wednesday Judge Anita Brody issued a ruling in the NFL Concussion Settlement that prompted a wave of anger and despair for many members of the class action settlement. In her order, Judge Brody denied the motion of Gene Locks in which he asked the court for permission to share administrative duties in the Settlement alongside Co-Lead Class Counsel Chris Seeger.
The first year of claims processing has been very trying for the retired players and their wives. Many of those with Alzheimer’s and dementia claims have found themselves targeted for fraud. Hundreds of others found themselves caught in a seemingly endless cycle of “preliminary review” in which their cases never seem to move forward. Other legitimate claims have been outright denied because of the NFL’s aggressive opposition to claims and their influence jointly with Chris Seeger. As of April 16, of 1,135 dementia claims filed only nine (9) have been paid.
But – is it really fraud they’re objecting to or that they’re finding themselves caught in their own trap? On Friday, the NFL, in a couple of caustic motions, decried massive fraud on the part of players, lawyers and doctors in the NFL concussion settlement, while failing to acknowledge that this is a climate of their own making.
Recent Law Firm Report Details How False Actuarials Are Being Used to Derail NFL Concussion Settlement Claims
“It is tragic that the victims of alleged deceptive practices by the NFL Parties, the Retired NFL Players, are being looked at with suspicion in a settlement that was supposed to help them,” writes the Law Offices of Hakimi & Shahriari, a firm representing over 250 retired players, in a detailed letter to the Special Masters overseeing the concussion settlement, which Advocacy for Fairness in Sports has obtained.
Why Does Chris Seeger Sound More Like a Mouthpiece for the NFL than Advocate for Players in the Concussion Settlement?
The Settlement shines a flashlight on a major flaw in the American Justice System which causes the observer to wonder just how far the parties will go to cover the abuses.
Honorable Senior Judge Anita Brody
James A Byrne U.S. Courthouse 601 Market Street
Room 7613, Courtroom 7-B
Philadelphia, PA 19106-1717 November 13, 2017 Dear Judge Brody: The undersigned are members of the NFL Concussion Settlement Class. We are retired players, wives and family members who placed our trust in you and your Court. …
The NFL has been long-known for manipulation of science and use of intimidation tactics but never has this been more evident than in a motion filed on March 20, in the Concussion Settlement.
Allegations of bully tactics, doctor manipulation, and cherry-picked science are revealed in the motion filed by Locks Law Firm in an attempt to put the settlement back on the track it was purposed for – that of compensating injured retired players and their families who are suffering devastating effects of brain damage as a result of their football careers.
“Lost in space.” That’s where many, if not a majority of NFL Concussion Settlement Claims seem to have ended up. A motion filed on March 19, 2018 on behalf of former Falcon’s center Wayne Radloff shows in detail the excruciating wait retired players must endure to have their claims even considered in the NFL Concussion Settlement. In a departure from his counterpart Chris Seeger, Co-Lead Class Counsel Sol Weiss has, in the motion, requested a public hearing to address “the seemingly insurmountable hurdles facing injured class members.”
Predators Lurk At Every Turn As Neurologically Impaired Ex-NFL Players Seek Concussion Settlement Relief
More retired NFL players died last year, than received an award from the much-heralded “billion dollar” concussion settlement. According to profootballreference.com, 123 former players passed away in 2017. From the time the claims process began last March, through the most recent claims report filed last week, only 110 claims have been paid to date. In spite of this neurologically impaired retirees are still pursued relentlessly for whatever money they might by chance manage to receive.
Roger Goodell and the NFL talk about integrity quite a bit. Nothing is more important to them than the integrity of the game, they say. Perhaps they need to invest in some dictionaries, because they speak of integrity but deliver the opposite.
Daunting. Despicable. Dirty. Disastrous. Those are just a few adjectives that come to mind when evaluating the NFL’s torrent of delays and denials of brain injury claims brought by former NFL players. Mentally impaired men and their anxious families have been forced to jump through unconscionable hoops and endure painful audits, delays and denials while finding themselves accused of being liars and frauds by the league they once loved and sacrificed their health for.
On December 11, Harvard law professor William Rubenstein filed a 47-page report with the Court detailing his recommendations regarding attorney fees as he’d been commissioned to do in September. His recommendations consisted of (1) Denying the 5% holdback from all approved awards to fund future implementation work on the settlement as requested by Co-Lead Class Counsel Chris Seeger, and (2) Capping individual attorney fees at 15%. The professor’s report appeared well reasoned and presented, but as pointed out in the 12 responses, he seemed to lack some critical information when he prepared the it, including correct actuaries on player demographics and anticipated awards as well as the immense difficulty in getting claims approved. Since Professor Rubenstein is a highly intelligent man, several attorneys have indicated to me that they wonder how he could have been shielded from current and pertinent information on which they feel would have changed the recommendations of the report.
I recall stories related to me by retired players who are struggling and their family members. Men who constantly get lost and then sit in their cars for hours waiting to gain their bearings and figure out where they are so they can drive home or for someone in their family to find them. Men who have difficulty remembering how to get dressed. Men who can’t remember how to use a can opener. Just before Christmas a distraught wife told me how difficult it was for her when she gave her husband a Christmas card for their daughter for him to sign. She said that he looked at her with a blank stare and then asked, “Should I just sign it [first name]? She had to remind him, “No, sign it ‘Dad.’” I could go on and on. But the FAQs these guys are supposed to understand need to be deciphered so onward I suppose. The remaining FAQs address lawyers and liens.
The NFL Concussion Settlement has been anything but an easy process for the neurologically impaired class of retired football players. As of December 27 – ten months after the claims process began – a meager 13% — 206 monetary awards out of 1913 filed claims. As an observer noted, if claims continue to be processed at this rate, it will take approximately 4 years to process the current case load – and that doesn’t even account for the additional claims that will be filed.
FAQs and Analysis… December 28, 2017
Sheilla Dingus Update: June 29. 2019. Most of these FAQs that I wrote four voluminous articles about have been replaced. How can they reflect the settlement and be known as the “rules of the road” when the speed limit changes at whim? In
On December 1, a proposed document of Frequently Asked Questions (FAQ) was posted via Electronic Court Filing (ECF) to the NFL Concussion Settlement docket. The purpose of the FAQ document is to aid the neurologically impaired football players who are class members to the settlement in understanding its terms and filing their claims. During the enrollment period for the settlement, when retired NFL players had to make a choice between enrollment in the settlement, opting out, or ignoring it all together, in order to encourage enrollment Co-Lead Class Counsel Christopher Seeger, along with Claims Administrator Brown Greer portrayed the enrollment and claims processes as “simple.” They encouraged retirees to not hire independent counsel for this reason. They were told if they had a qualifying diagnosis their claims would be approved, and a 30-60 day window was referenced as an estimated approval time. As a result, approximately 20,000 retired players or their representatives registered for the program, including many who had previously objected or opted out.
In Part 1 of this series I detailed how §301 of the Labor Management Relations Act is the NFL’s number one go-to defense. This provision brings cases filed in various state courts against the league into federal jurisdiction when reliance on CBA interpretation is necessary. Often when the NFL successfully invokes this provision, especially in lawsuits involving retired players, there is no legal standing for the lawsuit under the CBA and the case is dismissed typically without extensive exploration the merits and allegations of illegal or unethical conduct.
In keeping with Judge Anita Brody’s announcement following a closed hearing with Chris Seeger, NFL Counsel, and Special Masters, a claims report dated December 11, 2017 has been posted to the settlement website. The seven-page PDF document which details the current status of claims highlights numerous issues in the settlement, not the least of which is a mere 10% approval of submitted claims.
Again. . . November 28, 2017
Sheilla Dingus In a grand webinar style conference on February 8, 2017, over which Judge Anita Brody presided, Co-Lead Class Counsel Christopher Seeger presented an impressive PowerPoint presentation in which he heralded the many benefits of the settlement that was beginning its …
Many wonder if they or the retired players will ever be paid November 21, 2017
Sheilla Dingus Andrew Brandt famously said, “There will be lawyers.” This statement is true and could actually be quite an understatement when it comes the NFL’s Concussion Settlement. On the surface one might think an uncapped settlement that …
A Closed Hearing is Convened in Judge Brody’s Chambers as Players Seek Transparency November 15, 2017
Sheilla Dingus Monday a motion for reconsideration was filed by X1 Law and Loren Kean Law, just prior to a closed hearing convened by Judge Brody with only Co-Lead Class Counsel Christopher Seeger (by name) along …
Objections Are Raised October 21, 2017
Sheilla Dingus On September 20, a motion was filed by three Texas law firms representing a group of players identified as “Alexander Objectors,” asking Judge Anita Brody to compel compliance with an order that she issued on September 10, 2012. The …
In September, Harvard Law Professor William B. Rubenstein was appointed by Judge Anita Brody to weigh in on controversies surrounding attorney fees, including a 5% hold back that Co-Lead Class Counsel Christopher Seeger requisitioned as payment for future work in settlement implementation.
In a well-reasoned 47-page report, Professor Rubenstein recommended against withholding the additional 5% from Class Members monetary awards and advised a 15% cap on contingency feels from independently retained counsel. Judge Brody has given a January 3 deadline for responses to the expert opinion.
Withholding 5% of every award is unreasonable
Prior to Professor Rubenstein’s report, every other attorney who publicly expressed an opinion on the subject, as well as members of the class of retired NFL players expressed opposition to the proposed 5% holdback. Professor Rubenstein agreed. As the professor noted, Seeger felt that the $112.5 million common benefit (of which Seeger claims over $70 million) should go to pay for securing of the settlement and the 5% for implementation of it, but as Rubenstein said, “Class Counsel bear the burden of proving the need for a 5% set-aside, but their artificial bifurcation of settlement and implementation – and hence the justification for the 5% set-aside – fails to meet that burden for at least six reasons.”
December 9, 2017
Sheilla Dingus As concussion settlement class members struggle to overcome delays and denials in the much heralded and massively disappointing NFL Concussion Settlement, opt-out claims are quietly moving forward. By 2012 hundreds of brain injury cases were filed against the NFL, and in some instances helmet maker Riddell, …
The undersigned Class Members wish to express our support of the motion of Class Counsel Locks Law Firm for Appointment of Administrative Class Counsel. As the Settlement has reached the one-year mark of claims processing we have sadly learned that we were deceived by the NFL and our own Co-Lead Class Counsel, Chris Seeger. The Settlement has devolved into a “bait and switch” scheme in which players and their families were sold a completely different program than the one aggressively marketed to them.
The NFL’s insurers are not happy. Concussions are eventually going to cost someone a lot of money and it’s now a question of who’s going to be on the hook for the bill. NFL insurer, Alterra, first brought suit against the league in August 2012, as former individual players began suing for latent injury against the NFL in regard to the hidden and misrepresented danger of concussions. At first all the NFL’s insurers appeared to want was a bit of cooperation and an exchange of information, which seems reasonable if they’re expected to pay the claim. The NFL was not forthcoming, so the insurers pushed back.
NFL Concussion Settlement is Becoming More of an Obstacle Course than Finish Line for Retired Players
October 9, 2017
Sheilla Dingus The “bottomless” NFL Concussion Settlement, once regarded by NFL retirees as the conclusion to a long, hard-fought race has devolved into a marathon maze laden with hurdles that appear to obscure any semblance of a finish line. On August 15 a motion was …
August 16, 2017
Sheilla Dingus In June 2014, after Judge Brody threw out a $765 million concussion settlement agreement as insufficient the NFL agreed to an uncapped monetary amount which was approved on April 22, 2015 and became final on May 8, 2015. As noted in an
September 16, 2017
Sheilla Dingus “I intimately know of the pain, responsibility and exacerbation and caretaking of my husband who I thought would take care of me,” says Susan Owens, widow of former NFL/49ers wide receiver R. C. “Alley Oop” Owens. “Instead, my husband turned into a stranger who seemed to hate me for …
August 7, 2017
@SheillaDingus Monday, August 7, was the final day for registration in the NFL’s “uncapped” concussion settlement, but for many players and their families, issues are far from settled. Numerous former opt-outs, who had decided to pursue their own litigation against the league apart from the …
July 16, 2017
@SheillaDingus As the time for registration in the NFL concussion settlement winds down, claims are beginning to be processed and opt-out complaints are moving forward. I reported in April about the legal “feeding frenzy” …
April 9, 2017 There’s blood in the water. An uncapped class action settlement and $112.5 million in an attorney fee common benefit fund has many lawyers engaged in a feeding frenzy for their piece of the pie, leaving many retired NFL players and their families perplexed and distressed as to …
February 20, 2017
Updated February 25, 2017 The NFL has been engaged in an ongoing dispute with its insurers in regard to concussions and who is responsible to pay for the damages. Travelers Insurance, which is the second-largest U.S. writer of commercial property and casualty insurance, …
Judge Brody ‘s concussion settlement conference was livestreamed this morning so I took advantage and got a few notes in addition to some screen captures, and tweeted it out. Here’s the Twitter summary in case you may have missed anything.