Many wonder if they or the retired players will ever be paid
November 21, 2017
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 pays for 65 years would make for lots of happy attorneys, but the opposite has occurred; most of the lawyers representing the class and individual clients appear to be almost as frustrated as the players with the slow claims process, denied awards, frustrating rule changes and uncertainty of pay.
On October 10, Co-Lead Class Counsel Christopher Seeger presented his proposal to the court recommending distribution of a $112.5 million common benefit fund with a whopping $70.4 million allocated to his own law firm. The proposal was based on widely criticized lodestar and multiplier formula in which firms submitted hours and expenses (lodestar) and Seeger equated value to them through via a multiplier ranging from .75, in which the firm would actually loose money to 3.885 for his own firm, which would if approved pay him 3.885 times his investment in the case. In his fee allocations, aside from the large entitlement he assigned to his own firm, those he hand picked to work with him received the next highest multipliers in the proposal.
Four firms were given .75 percent allocations which placed them at a point of loss. One of the attorneys short changed was Brad Sohn, a young pace-setting attorney who is co-lead counsel for the opt-out plaintiffs. Sohn was recently procured by Baez Law as co-counsel in the loss of consortium lawsuit filed on behalf of Aaron Hernandez’s daughter, after Hernandez was revealed to have Stage Three CTE, following his suicide. Apparently the high profile firm Baez Law found merit with his work whereas Christopher Seeger oddly did not.
While Sohn did not file an objection, apparently willing to cut his losses, it’s needless to say, numerous objections have been raised.
Seeger has also proposed a 5 percent deduction from every approved claim for future benefit work, and this is currently being deducted from the few awards that have been approved thus far, although the Court has not yet ruled. Seeger appears to be the only party strongly in favor of this holdback; not only players and their families, but numerous law firms both inside and outside class counsel feel the deduction is burdensome and unnecessary.
Lance Lubel, who represents a group of players identified as Alexander Objectors wrote, “The 5% set-aside fee, which Co-Lead Class Counsel seek to recover from every monetary award even after receiving $112.5 million, should be rejected. Notably, the 5% set-aside was not part of the attorneys’ fee provisions in the January 6, 2014 settlement agreement executed by Class Counsel and the NFL Parties. It popped into the agreement for the first time in the June 25, 2014 revised agreement. Neither Class Counsel nor the NFL Parties provided any explanation for why up to $112.5 million in attorneys’ fees was satisfactory in January but considered approximately $45,000,000 light a mere six months later.”
Class Counsel member Gene Locks seems to agree: “[T]he requested 5% holdback is unnecessary. LLF [Locks Law Firm] urges the Court not to grant the request but, rather, (1) to allocate from the $112.5 million fund a reserve for whatever is needed for administration; (2) audit Seeger’s and the NFL’s micromanagement of the Settlement process with the help of class counsel, BrownGreer, and a special master if necessary, and (3) wait and see whether additional funds are ever needed for administration of the Settlement which are not presently available. If additional funds are needed, the NFL should pay them, not the claimants.”
While the concussion litigation is about and should always remain focused on the players and their families who’ve been injured and left debilitated by the actions and inaction of the NFL, due to Seeger’s micromanagement, lawyers who once expected handsome paydays of their own continue to advocate for players as they too contemplate whether they will ever see a payday.
One of those who found himself on the short end of Seeger’s assessment scale was Jason Luckasevic, who initiated the first chronic brain injury lawsuits against the NFL. He found his firm, Goldberg Persky & White, for all practical purposes, left out in the cold in Seeger’s fee allocations, having been slated to receive a mere $262,860 for what equates to over a decade of work. As he stated in his counter-declaration to Seeger’s proposal, his work actually began in 2006 through a meeting with Dr. Bennet Omalu, whose pioneering work was the subject of the movie “Concussion” and the award-winning documentary, “League of Denial” and book of the same name. Much of Luckasevic’s work was also profiled in “League of Denial.” Luckasevic’s declaration details his research prior to making a decision to pursue litigation:
“I briefed myself on the research that led Dr. Omalu to conclude that football had first disabled, and then killed, Pittsburgh football legends Terry Long and Mike Webster. I conferred with Bob Fitzsimmons, a West Virginia lawyer and co-founder of the Brain Injury Research Institute, who was one of the first to contemplate the legal ramifications of football and brain injuries. My investigation involved reading and reviewing scientific journals. I did a literature search of medical articles concerning sports and concussions and CTE-like conditions. . . I reviewed the history of the NFL over its decades of existence, the formation of the league and its corporate structure, myriad injury reports, as well as rule changes and new penalties that may have been intended to reduce the occurrence of brain injuries, but failed to do so. I learned about the NFL’s Mild Traumatic Brain Injury Committee, and read the. . . dozens of articles it published contesting Dr. Omalu’s findings.”
“I read about retired players’ struggles in media reports. I studied other sports leagues, particularly the NHL and its management of concussions. I researched return-to-play guidelines that had been in existence for decades in published literature. I spoke to players, families, and widows. I ordered medical records and reviewed family histories. I even investigated other causes and sources of the neurocognitive impairments in an effort to understand all aspects of the disease.”
After doing the research and deciding to pursue litigation, he sought the support of his firm to file the first lawsuit. The firm was interested but unwilling to assume the financial risk of such an undertaking. Through additional work he managed to secure two additional firms that would agree to work together and share the financial risk. Finally, in 2011 the first lawsuit, Maxwell vs. NFL was filed in Los Angeles County Superior Court. Along with the firms, Russomanno & Borrello and Girardi Keese, legal strategies were brainstormed and honed as the case was moved to federal court. As word of this lawsuit, and Pear vs. NFL which was also initiated by Luckasevic and colleagues, more and more lawsuits were filed, and as the origin of the litigation, became the basis for the MDL which resulted in the Concussion Settlement.
In addition to Luckasevic, who in conjuntion with Girardi Keese and Russomanno & Borrello filed the first NFL brain injury lawsuit, Hagen, Rosskopf & Earle, Anapol Weiss, Kreindler & Kreindler, Pope McGlamry and Zimmerman Reed also filed early litigation against the NFL, dating back to 2011 as noted in their counter-declarations as well as Hausfeld who filed Brent Boyd vs. NFL in January 2012, in which Boyd, who testified before Congress about the dangers of brain injury in football and later founded the retired football player’s advocacy group, Dignity After Football was the lead plaintiff.
“It is not possible that all of these firms were first,” Seeger retorted. But, outside of Luckasevic and the colleagues he assembled, no one else claimed to be first, but simply sought acknowledgement of the work they performed in building a case which would later bring the NFL to the negotiating table. Instead Seeger sees their efforts as “allegedly winning the race to the courthouse.”
“Prior to the formation of the MDL,” Bruce Hagan stated, “I was invited to and attended an organizational meeting among Plaintiffs lawyers who were involved in the NFL Concussion Litigation up to that point. The meeting was at the Podhurst Orsek law office in Miami and occurred on January 25, 2012, the day before the MDL hearings. It was at that meeting that I first met Chris Seeger. I did not know Mr. Seeger before, although I was aware of his reputation as a giant in the field of Class Actions and Mass Tort litigation. Despite the fact that the case had not yet been consolidated into an MDL proceeding, and despite the fact that no attorney had been elected or appointed to any leadership role, Mr. Seeger told the assembled lawyers at the meeting that he had already engaged in settlement discussions for ALL cases with a lawyer representing the NFL. I had no idea how or why he was discussing settlement in a case that was barely in its infancy, or under whose authority he purported to be acting, so I found his statement to be particularly odd.”
At the time, Seeger had 13 individual clients in contrast to hundreds and in some instances, thousands of players and widows represented by the other firms that would later compose the MDL’s steering committee.
A predictive article written by Patrick Hruby in 2014 describes in advance how the concussion settlement is unfolding. In the article he asks the serious question, “Did the lawyer for the players collude with the NFL and screw his clients over in the process?” and then answers, ”There is reason to wonder if he did.”
Seeger’s apparently covert negotiations weren’t the only peculiarity pointed out in the counter declarations filed. Michael McGlamry noted, “Mr. Seeger has failed to hold or participate in substantive discussions with MDL-2323’s PSC and PEC since 2013. There have been no leadership meetings, no leadership conference calls, and literally no leadership discussions. Mr. Seeger effectively became a solitary dictator of MDL-2323.”
Several firms who composed the Communication Committee feel the important public relations element they spearheaded has been minimized in Seeger’s recommendations. Anthony Tarricone’s counter declaration states, “[W]hen the NFL litigation was in its infancy, the league undertook a public relations campaign designed to discredit the science that drew a connection between concussions and repetitive head trauma and the myriad of illnesses and conditions that plaintiffs claimed in their lawsuits. The NFL’s public relations machine went into overdrive defending itself in the court of public opinion.”
The NFL is very much driven by public relations as can be substantiated in its very public reactive measures following the Ray Rice debacle. Nowhere has the NFL attempted to drive public perception more than in regard to head injuries and resulting brain trauma. Through the work of the attorneys in the Communications Committee as noted in numerous declarations, stories of how players suffer from the negligence and indifference of the NFL began to counter the NFL’s disinformation campaign. The work of legitimate neutral scientists such as Bennet Omalu and Ann McKee became known to the public along with reports of decades of NFL funded pseudo-science which produced reports favorable to the party paying the bill, discounting the dangers which placed players at grave risk. One NFL backed position even blamed the players’ wives for their symptoms of brain damage.
The new-found public awareness of the dangers of concussions and mild traumatic brain trauma was instrumental in driving the NFL to negotiations in order to avoid damaging discovery, yet the public relations battle is largely discounted in Seeger’s evaluation of the public relations work that went into driving the NFL to settle as “greatly overstated.”
“This litigation. . . was not about ‘spin,’ as these counsel who object to my proposed allocation believe. Rather, it was predominantly about good lawyering – negotiating and structuring a settlement that would provide real benefits to Class Members and pass muster in the courts.” Seeger wrote. Bruce Hagen asks, “Does Mr. Seeger think that the case settled merely because of his charisma, talent and skills?”
Other firms felt the large number of players they brought to the litigation, creating a necessary critical mass, played a major role in convincing the NFL to settle. Seeger found this contribution insignificant as well. “[T]hese objecting counsel criticize me for not rewarding with higher multipliers that asserted risk and pressure their large inventories allegedly brought to bear,” he wrote, while discounting the risk involved in the early lawsuits while suffering little risk to himself, coming aboard with few clients prior to the formation of the MDL.
All in all, seventeen firms filed objections to Seeger’s fee proposal including the ones cited above.
Not mentioned in Seeger’s lengthy footnote in his forty-six page response to the numerous declarations was an objection and motion to prioritize by Yerrid Law and Neurocognitive Football Lawyers which was joined by the Allen Retired Players represented by X1 Law and Loren Kean. The motion to prioritize asked Seeger to “treat the welfare of the retired players with priority. . . These injured and dying players, deserve, at the very least, the best treatment that can be afforded under the terms and intent of the Settlement Agreement,” and further stated, “The welfare of the vast majority of the retired players should be secured before any fees are determined and paid. This approach would certainly place compensation of attorneys’ fees in a secondary position to compensation of the injured players or their survivors.”
Seeger briefly addressed this motion in stating that the motion to prioritize “was not a genuine response to my allocation recommendations. Nor could it have been, because the attorneys who filed that submission performed no common benefit work.” While it is true that the law firms did not provide common benefit work, the movants made no allusion to having done so nor did they seek a piece of the common fund. They merely asked Co-Lead Class Counsel to refocus on the players to ensure their claims were fairly processed in a timely manner, suggesting that attorney fees could wait.
Seeger did however address this motion in a separate filing in which he wrote, “The long-winded, ninety one-word title of this submission reflects its sanctimonious tone,” further stating the motion was “improper,” and that “implementation of the Settlement Agreement is now in full swing and monetary relief is regularly flowing to Class Members…” Since on record at the time of filing 140 out of 1400, or 10 percent of filed claims had been paid, apparently Mr. Seeger finds this low percentage acceptable as long as his fee petition moves forward.
Gene Locks states in his counter-declaration, “Courts do not allow common benefit fees before reliable data is accumulated and known to the court and parties. Seeger has been involved in many of these cases, including the Vioxx matter, so he knows the cases and knows the process. . . Indeed, given the public policy considerations implicated by a judicial award of attorney’s fees, one is hard pressed to argue that attorneys for class members should be paid substantially before the class members themselves have received actual payment of the settlement benefits that justify such an award in the first instance.”
Bruce Hagan exclaims, “Mr. Seeger’s insatiable greed seems to know no bounds” Perhaps Chris Seeger states his position best in this YouTube clip submitted by an anonymous entity identified as “Player Jusctice,” when he says, “I need a bucket of money.”
Recently Judge Brody, after a conference with Seeger, NFL Counsel and Special Masters appeared to acknowledge some of the problems plaguing the settlement. In a recorded message, followed by the issuance of a notice, she promised greater transparency as well as measures to streamline the claims process. It’s noteworthy that in her notice Class Members are instructed to contact her court directly as opposed to in prior notices contacting Mr. Seeger. Will the Claims Administrator now be permitted to do his job without endless phone calls to Seeger and NFL attorneys to ensure that he’s implementing the settlement according to their wishes? Only time will tell.
Ten months after NFL concussion settlement, most players haven’t seen a dime by Rick Maese via Washington Post
Debilitated Players Accuse N.F.L. of Stalling on Settlement Payments by Ken Belson via New York Times
Former NFL players struggle to get paid after reaching $1 billion settlement over concussions by Lindsay Gibbs via ThinkProgress