April 28, 2019
“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.
The attorneys’ filing echoes the concerns I expressed in my analysis of the order and the impact it stands to have against retired NFL players and their families who were first damaged by the league and now through a settlement modification that brings it closer in line with the NFL’s disability plan—the exact scenario they’d hoped to avoid. Moreover, they pointed out that the changes “were developed and approved without notice to or the consent of Class Counsel, a requirement under section 30.6 of the Agreement and paragraph 18 of the Court’s Final Approval Order (ECF No. 6534).”
This statement reveals a very disturbing part of the picture. Judge Brody apparently doesn’t understand that she has exceeded her albeit broad authority over the settlement in unilaterally modifying it. Why? One lawyer I spoke with contends that it’s because Chris Seeger, in concert with the NFL, has for all practical purposes pulled a fast one on the judge. Because he, along with NFL counsel, have successfully blocked attorneys from openly arguing settlement implementation issues or filing most concerns on the public docket, the judge’s chamber has become an echo chamber for the NFL and Seeger, who appear to be working in concert, leaving her just as blindsided as she was by the Third Circuit reversal of her order regarding third-party funders. It’s unknown exactly what was discussed privately in the chambers hearing on January 8 that prompted the NFL to withdraw an appeal and Judge Brody to undertake the settlement modifications but it seems clear that she had no idea that her “administrative” order exacted substantive changes to the settlement agreement.
Per Dom Cosentino at Deadspin:
“This is an administrative issue. It’s not substantive. It doesn’t alter any rights,” Seeger told Cosentino in a subsequent story. Apparently, he used this line to pull the wool over the judge’s eyes too.
While alterations of this nature may, unfortunately, be commonplace in non-class certified MDLs because of the lack of judicial oversight, this is a gross violation of the protections FRCP Rule 23 governing class action settlements was designed to prevent.
As Rutgers law professor David Noll notes in The Rule of Law in Multidistrict Litigation, “MDL works by refusing to follow a regular procedural playbook. Its solutions are case-specific, evolving, and ad hoc. This very flexibility, however, provokes charges that MDL violates basic requirements of the rule of law.”
Indeed, Martin H. Redish of Northwestern University School of Law writes in One Size Doesn’t Fit All: Multidistrict Litigation, Due Process, and the Dangers of Procedural Collectivism, “scholars have long debated the merits of MDL. But what seems to have been lost in the shuffle in all of that scholarly debate is any serious discussion of MDL’s serious undermining of the individual plaintiffs’ right to procedural due process… The paternalism version of due process demands that those who represent the legally protected interests of individual litigants adequately represent those interests in good faith.”
But what happens when that “good faith” is breached and the presiding federal judge only hears from select parties, leaving the plaintiffs without a voice?
This is exactly what the motion for reconsideration seeks to address—that of a federal judge through a series of sua sponte orders modifying a certified class action settlement binding over 20,000 retired NFL players in a manner favorable to the NFL.
This footnote succinctly summarizes the rights at issue.
150-mile rule disadvantages players in numerous ways
The first change is one that forces a player to see a MAF neurologist within 150 miles of his home and a neuropsychologist within 50 miles of the neurologist.
The attorneys point to the importance of players retaining a right to choose, calling attention to how Judge Brody’s order not only limits them geographically but even eliminates a local physician if “that physician serves as an expert witness for the Class Members’ attorneys in a completely unrelated case and capacity. None of these restrictions are found anywhere in the Settlement.”
The devil’s often in those details otherwise known as footnotes. Here the attorneys explain that Judge Brody’s revision is in direct conflict with the settlement agreement, as the agreement only prohibits the exclusion of physicians who serve as experts for “litigation relating to the subject matter of the Class Action Complaint.” In overreaching the boundary defined in the settlement agreement, Judge Brody has excluded doctors who may have served as experts or examined players who are involved in lawsuits against the NCAA or NHL, or even outside the sports-concussion realm, precluding neurologists who may have treated car accident victims who were represented by an attorney representing players in the settlement.
Why is this so important?
The segments above paint only a partial picture as to why freedom in choosing a physician is of extreme importance to settlement class members, and how the undoing of this is essentially a re-write of the agreement players signed onto when they enrolled for participation in the settlement.
In addition to seeking a physician with a particular specialty, Locks et al point out that insurance coverage also plays a role since not all MAF physicians accept insurance, and among those who do, there is a great deal of variance as to which plans are accepted. Why should a player be forced to spend $8,000 out of pocket with a doctor who doesn’t accept his insurance plan when a doctor 300 miles away does?
Comfort-level also plays an important role in choosing a doctor. Some players seek recommendations from people who’ve been examined by the doctor regarding his competency and sensitivity. Other players are fearful of being publicly shamed because of their impairments and as such do not want to risk being seen at a local neurology practice. As silly as this might sound on the surface, it’s a very real fear and very relevant factor, as I’ve learned through discussions with retired players and members of their families. As eloquently explained in the brief, this is a direct result of the football culture.
The motion filed by Locks, Podhurst and Anapol Weiss, is a forceful and clear statement as to why the recent MAF changes are in error and not in alignment with the settlement agreement.
Chris Seeger’s contribution
Co-Lead Class Counsel Chris Seeger filed a partial joinder with the other class attorneys regarding the geographic limits imposed. Unfortunately, instead of clearly expounding as to how even this provision represents an unfair re-write, he comes off much the same as a child whose mother forced him to do an unwanted chore.
“Co-Lead Class Counsel requests that certain revisions be made to Rules 9 and 10(b) to address the potential negative impact those rules would have on Retired Players if those mile restrictions were mandatory.”
Instead of asking the court to strike these highly unfavorable changes, he merely requests “certain revisions be made,” likely as an attempt to walk back his former position that the changes merely administrative.
The fact that Seeger personally represents very few class members and has little understanding of their needs seems quite clear. While Brad Karp and the other Paul Weiss attorneys retained by the NFL have diligently upheld the interest of their client NFL, Seeger has bent over backward to accommodate them with his insistence on “preserving the integrity of the Settlement Program.” Paraphrased, this reads like, “In no way to I wish to impede the NFL’s aggression in declaring my clients to be frauds.” Quite the opposite, he seems eager to help them do just that. Unfortunately, the moderate level of fraud that has been detected has been leveraged to prevent payment to players who are legitimately ill. Outside the aggregate litigation sphere, this breach of ethics would merit sanctions and likely malpractice suits, but as a Vioxx plaintiff learned when she tried to assert her rights.
Perhaps this should come as little surprise. Many judges presiding over MDLs favor cooperation over advocacy. Seeger seems eager to comply. Here are a few quotes from a Law Dragon interview:
LD: “You mentioned that you do go up against the best defense lawyers in these cases. Can you share a few opponents that you’ve come to admire?”
CS: “…One that comes to mind just from recent experience in the NFL litigation is Brad Karp from Paul Weiss. I think he is extremely honorable. A fierce competitor, a fierce advocate for his client but when he says something you can rely on it. He’s very good at expressing what he needs out of the deal, which gives me guidance as to what I can deliver.”
Indeed, Brad Karp is very capable of “expressing what he needs out of the deal.” Unfortunately, Seeger has been more eager to look out for Karp’s interest than those he was appointed to represent. It seems apparent that you don’t reach the top echelon of the plaintiffs’ bar by playing hardball with the opposition, which only magnifies my respect for those who are willing to put it on the line for their clients.
Also, apparently complicit in the ruse is claims administrator Orran Brown, who has aggressively audited nearly half the claims submitted and plunged others into a deficiency or lengthy period of preliminary review.
While Brown sold himself as someone eager to please the players, in reality, it’s the repeat-player lawyers who deliver his bread and butter, and his efforts have been exclusively biased toward the NFL with presumably Seeger’s approval.
This month in the 3M Earplug Litigation in which 3M is being sued for selling defective earplugs to the military resulting in hearing loss by service members, Orran Brown was selected by Northern District of Florida Judge Casey Rogers to a panel to select the lead lawyers for the MDL.
The two front-runners who will likely become co-lead counsel are Mark Lanier, who handed Brown a lucrative job managing claims for the Actos Litigation and Chris Seeger. In addition to being Vioxx partners in crime, Seeger also has curious ties to Lanier, in that during the Zimmer Durom Hip Cup Products Liability Litigation, he went outside the court-appointed 5-member liaison counsel to Lanier and negotiated a settlement without the knowledge of the other four member of the liaison group, leaving them in the precarious position of representing a settlement they didn’t negotiate or approve, as evidenced by their letter to the judge.
In view of this, it should come as no surprise that Seeger has also sought to evade other members of class counsel in the concussion suit, after all, he expressed an aversion to rules to Bloomberg’s Perry Cooper, stating increased oversight “would take the fun out of mass torts.”
As a remedy to the violations noted in the Locks/Podhurst/Anapol Weiss brief, Seeger suggests a mere rewording of the referenced sections regarding mileage limitations.
Implementation of Seeger’s suggestion leaves the door open to speculation and conjecture as to why a player selected a particular doctor and does nothing to remove the burden of avoiding a doctor that his attorney may have consulted with regarding an unrelated case.
At least Seeger did take the time to point out that over 1,700 players are only within 150 miles of a single MAF physician, eliminating any semblance of choice for those players, admitting, “The Parties never intended to force any Retired Player, let alone 1,700+ players, to use one specific Qualified MAF Physician. That is exactly what would happen if Rule 9 is implemented in its current form.”
Disability déjà vu
The class attorneys demonstrate that newly adopted rules attempt to model the settlement on the NFL’s scorched earth disability plan—and that is something players would have never agreed to had this been presented to them while they had a choice in opting out.
To demonstrate the arbitrary and adversarial manner in which the NFL Disability Plan is administered, the attorneys included an exhibit from a district court’s opinion overturning the Plan on Mike Webster’s disability determination. The entire document is worth a read and embedded for quick access, although certain aspects merit additional focus.
Once again, those devilish footnotes zero in on some important facts.
The legitimacy and tragedy of Webster’s case is well documented through media coverage but the treatment he endured is standard operating procedure. Attorney Edward Dabdoub, who represented Darryl Ashmore in his disability appeal said, “The NFL clearly has a strategy of, ‘we don’t surrender, we don’t negotiate. If you sue us, be prepared to go to the very bitter end and we’re gonna make your life miserable while we’re doing it.”
The fact that a player can sue following an unfavorable disability determination is a right that players in the settlement do not have. Once again, a look at the footnotes proves valuable.
The revisions tilt the bargained-for settlement in favor of the NFL
Seeger offered no opinion on the other settlement modifications addressed by the other members of class counsel, seemingly intent on protecting the NFL from fraud, while forgetting that the consolidated lawsuits centered on how the NFL defrauded players—and seeks to defraud them once again. One attorney related to me, “Privately Seeger doesn’t even make a pretext of working for the players.”
Attorneys behind the motion point out, “The NFL successfully negotiated robust anti-fraud provisions: audits by the Claims Administrator, appeals of individual claims by the NFL, reviews by the Special Master, and the ability to move for disqualification of MAF physicians they deem suspect. These protections have been effective. Recently, the Court enhanced the enforcement of these existing protections further with its Order providing the Special Master with a Special Investigator, adding another layer of scrutiny within the existing framework. That is the bargain that the players struck to balance their vital interest in selecting MAF physicians of their choice against the NFL’s concerns about the possibility of fraud. That balance is working.”
Increased AAP presence
Since the summer, the NFL has pushed for mandatory AAP review of claims. According to the settlement agreement, the AAP must review pre-effective date claims, and their use by the settlement’s special masters in reviewing appeals is discretionary. Judge Brody denied the NFL appeal and gave them something even better. Now the NFL-friendly AAP can take a swipe before a claim is even approved.
“The creation of the AAP Leadership Council in Rule 23 likewise adversely affects the rights of Class members. The new rule permits two members of this new body, who have not examined the players, to question the medical judgment of pre-screened and approved MAF physicians at the initial claim determination stage,” states the motion.
Rule 23, which adds this provision violates and modifies the settlement agreement in two ways. First, it establishes another layer of scrutiny that was never bargained for, and second, it places that scrutiny at the beginning of the claims process rather than the end.
The gravity of this cannot be overstated! I alluded to the difficulty of the “clear and convincing” standard in a previous article.
To demonstrate the difficulty of “clear and convincing,” 115 payable approved claims have been appealed by the NFL, but only 7 of them have been reversed, with 108 players surviving the appeal. Alternately, 193 players have appealed denied claims but only 6 have had the denial overturned. In other words, the party seeking the appeal has a very small statistical chance of reversing the original decision (As an appellant, the NFL has prevailed 6% of the time and the players 3%); aggressive denials prompted by AAP consultation will almost certainly place sick players in the disadvantageous position of having to demonstrate that the AAP got it wrong.
The war on “generally consistent”
For the entirety of claims processing that began over two years ago, the NFL has been working to eliminate or greatly weaken the “generally consistent” diagnosis bargained for in the settlement, as an attempt to create a clone of the extremely regimented BAP diagnosis in which only 5% of players who’ve completed their exams received a qualifying diagnosis.
This is can be compared to a Social Security disability claim. When a disabled person first submits a claim for any and all conditions in which they assert disability the application is screened by an agent who evaluates each factor separately. Unless the claimant gets a checkmark beside EVERY factor, the claim is denied, even if a person has multiple conditions contributing to their overall disability and has an overwhelming number of checkmarks in several conditions.
It isn’t until the denial is appealed to an administrative law judge that someone is able to consider the application as a whole and determine if the cumulative factors equate to total and permanent disability.
Whereas a BAP physician is much like the agent reviewing a new disability claim in that every checkmark has to be present in order to merit approval, a MAF physician is allowed to examine all factors using his best medical judgment to determine if a player is cognitively impaired, and if so, to what degree.
The newly adopted Rule 20 brings the MAF much closer to the BAP, which will prevent many players from receiving awards they are entitled to.
As noted, this also puts a heavy burden on doctors who will, without doubt, have their ethics and judgment called into question should they find a player sufficiently impaired as to qualify for a monetary award.
The changes create two classes of players with substantially different rights
Just as most nations measure time in the eras B.C. and A.D., settlement class members will be divided by “Pre 4/11/19” and “Post 4/11/19”.
In addition to being able to choose their physician, post 4/11 class members will also face the AAP at potentially every level of claims scrutiny, greatly reducing their chances of initial approval and their ability to prevail on an appeal.
Compounding all of this is the ambiguity of potentially 3 different levels of class members, the third being a hybrid of claims currently in the cue.
Assuming the claims administrator is correct, class members who are currently in the cue, won’t be impacted by the 150 and 50 mile rules, as that would mean that many of them would have to discard the examinations they have already paid for and put out another $8,000 for an exam by a different doctor. Judge Brody did specify in her order when remanding back to the claims administrator, that he apply the newly approved rules, which presumably would subject those whose claims are under review to initial AAP scrutiny at the very least.
Class Counsel make it abundantly clear that the new amendments to the settlement are in violation of FRCP 23 and Third Circuit precedent.
It’s ironic that as the NFL tries to accuse players of doctor shopping, it is they who have that art down to a science.
In Darryl Ashmore’s disability case, the NFL sought to force Ashmore, who is unable to endure air-travel and only short distances by car an itinerary of doctors creating over 1,200 miles of travel, in order to have their best chance at denying his claim. And now they speak with forked tongue in wishing to limit players to doctors within 150 miles of their primary residence.
After over two-years of avoiding a hearing on implementation issues and listening only to Seeger and Karp in a closed setting, Judge Brody has scheduled a hearing on May 7. At this point, whether any attorneys outside class counsel will be permitted to speak is unclear, but, the three firms who filed the motion for reconsideration have made a strong case.
The provisions cited are Rule 23(c)(2) regarding notice…
Note sections (iv) and (v). According to Federal Rules any class member may enter an appearance. AND the court will exclude from the class any member who requests exclusion (the ability to opt out).
Class Counsel also state FRCP 23(e) is applicable, stay with me while we take a closer look.
Both provisions cited by class counsel require an opportunity to opt-out “to individual class members who had an earlier opportunity to request exclusion but did not do so.” To my knowledge, this has never been done before, but settlements are not supposed to be amended after finalizing. Though the Rules are directed at a proposed settlement, they are the only governing rules, therefore, as class counsel indicated, they seem applicable. The firms behind the motion for reconsideration are respected, experienced, and competent counsel, so with that in mind, perhaps players once again have leverage.
Stay tuned and buckle up. I have a feeling it’s going to be a wild ride.
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