September 23, 2019
Sheilla Dingus
UPDATED
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.
In what seemed like good news for retired players who’d taken advances on their anticipated settlement proceeds, Eastern District of Pennsylvania District Court Judge Anita B. Brody’s order, issued December 8, 2017, that voided contracts with third party lenders seemed like a welcome relief. Unfortunately for those class members who procured advances, the order turned out to be a feat of smoke and mirrors that may leave the players on the hook for more money than they would have initially owed had the district court left well enough alone.
How We Got Here
Without delving into the intricacies of how Judge Brody came to issue the order, which was previously detailed here, suffice it to say that the judge took great liberties with the language of the settlement agreement to arrive at her decision.
Here’s the settlement provision Brody’s order was derived from.
While an uninitiated person might read this as Brody’s order indicates, Section 30.1 of the Settlement Agreement differs very little if any from language contained in almost every class action settlement in which there is no prohibition on advances of claim proceeds.
After a chain of events led Judge Brody to put all attorneys who sought to collect from the common benefit on the hot seat regarding loans their clients may have received, attorneys began to call attention to this fact, and Mike McGlamry of Pope McGlamry in Atlanta provided numerous samples of similar language to back up his assertion.
In the meantime, Judge Brody had shut down every attempt by the settlement funders to make their case, but the filings by plaintiffs attorneys didn’t escape their attention and once their path for remedies was exhausted at the district court level they appealed to the Third Circuit.
Third Circuit Opinion
The Third Circuit acknowledged that the steps Brody had taken were unprecedented, and while they commended her efforts to protect vulnerable players, they agreed with the funders that she’d overstepped the bounds of her authority.
In the unanimous opinion authored by Chief Judge D. Brooks Smith, the appellate court vacated most of Judge Brody’s order, upholding one narrow portion that agreed that “true” claim assignments could be voided.
Throughout the opinion, Judge Brooks took great care to define what constitutes a “true” assignment from an acceptable settlement claim advance. A “true” assignment was defined as when contract provisions allow the funder to collect directly from the NFL and/or claims administrator as if they were the player. Most advances, as noted in the opinion seek only to collect on their loans after the class member has received his award.
Here and elsewhere in the opinion the panel stated that Thrivest’s contracts did not constitute a “true” assignment and therefore could not be voided by the district court. Following the opinion, the Third Circuit issued a judgment and mandate instructing the district court to proceed as instructed in the opinion.
A Wink, a Nod, and Business as Usual
Following the Third Circuit opinion and mandate, very little changed. Because her denial of Thrivest’s motion to arbitrate its loan with one class member, William White, was reversed, Brody, ruled that another class member, Toby Wright, would have to arbitrate his grievance with Thrivest. Oddly, her order contained Supreme Court case law to support her decision (that would have also conflicted with her prior decision) but made no mention whatsoever of the Third Circuit ruling in which she’d been reversed.
A letter filed by Thrivest requesting a hearing indicated that outside Brody’s new willingness to send players to arbitration, nothing had changed since the Third Circuit ruling. Players were still being told their obligations had been voided and seemed oblivious to the Third Circuit’s determination.
Claims Administrator Orran Brown responded in an almost defiant tone, claimed to be in compliance, but referenced Judge Brody’s December 8 order as opposed to the Third Circuit opinion as the guidepost used when making determinations as to whether loans were prohibited assignments or not.
With his reply, Brown attached a copy of the Rules Governing Assignment of Claims that clearly demonstrates that little if anything has changed in the way the district court, and by extension, the claims administrator is handling player awards when third-party funding is involved.
Judge Brody issued a decision on August 15, that basically read as if she declined to read the Thrivest letter, and instead endorsed Orran Brown’s response, almost in a “whatever he said,” manner.
Upon reading her two-sentence order I fully expected the matter to return to the Third Circuit. “But how?” or “in what form?” I wondered. Early in my blogging days, I recall asking some of the best minds in sports law what would happen if a district judge failed to abide by an appellate mandate. Though the exchanges were digital, rather than verbal, I could almost hear the lawyers laughing at my query. “It doesn’t happen,” I was told. “District courts just don’t disobey appellate mandates. It isn’t done.”
That was then, and this is now. What “doesn’t happen” has now apparently occurred. “But what’s the remedy?” I wondered.
The attorneys I spoke with had varied responses, likely because of the rarity of the occurrence. I asked if mandamus was in order, and was told, “possibly.” One attorney pointed out that mandamus and a mandate are basically redundant and that if it was his case, he’d seek recusal. He then pointed out that recusal is an extremely high bar, but that disobeying an appellate mandate should appear to meet that bar.
As it turns out, the attorneys representing Thrivest are petitioning for a writ of mandamus. In view of the discussion with the attorney, I’m compelled to wonder if seeking the writ is a precursor to seeking recusal, should the district court fail to respond appropriately.
Petition for Writ of Mandamus
The petition for writ of mandamus was filed on September 18.
Thrivest begins its argument in stating, “This mandamus petition concerns the District Court’s failure to implement this Court’s clear guidance regarding litigation funding agreements in the NFL Concussion Class Action. The Third Circuit rejected the District Court’s transaction-level analysis and directed a provision-by-provision approach; yet, the District Court and the Claims Administrator are still purporting to void funding transactions in their entirety.”
Thrivest says that in a claims process in which they have been excluded, the claims administrator continues to handle funding issues in accordance with the reversed portions of Judge Brody’s order, and continues to mislead class members regarding their obligations.
The adverse financial consequences Thrivest references primarily concern the accrual of interest as the settlement advances are litigated and players rely on inaccurate information in challenging the validity of their loans.
An example was given in one of Thrivest’s earlier filings in which a class member received a $500,000 advance from Thrivest. As of the date of that document the repayment would have been $673,902. By April 30, 2019, repayment had increased to $788,535, or $114,633 more in the course of 10 months. In addition to this, Thrivest indicated that its contract and presumably contracts of other funders obligate the “Seller” or recipient to pay, “all costs and expenses incurred by Buyer” (lender) including attorneys’ fees paid to enforce the agreement. “Once those fees are incurred, no one can ‘un-ring the bell,’” Thrivest wrote.
Thrivest notes that the claims administrator has amended the Assignment Rules since the mandate was handed down, but not in a meaningful way. Players who’ve accepted loans must still report them to the claims administrator who makes a determination as to if the advance is a collateralized loan or a prohibited assignment, and then proceeding to determine that all advances are prohibited.
The Thrivest brief points out that in reaching a decision the claims administrator doesn’t simply examine the language of the contract to see if the lender can step into the shoes of the class member and collect directly from the settlement fund (prohibited), or if the lender would collect from the class member after his award has been paid (not prohibited). Instead, the claims administrator “continues to consider criteria such as ‘the fairness and commercial reasonableness of the [agreement’s] terms and whether they reflect the type of transaction the Court found invalid in its Explanation and Order.’”
Thrivest notes its unsuccessful attempts to resolve the matter at the district court and presents an example of where the claims administrator and special master found Thrivest’s advance to be a prohibited assignment. For example:
“The Claims Administrator argued that a conference was unnecessary because ‘the Third Circuit Opinion [did] not require [it] to change [its] process for resolving Prohibited Assignments, as outlined in the Rules Governing Assignment of Claims,’” attorney Peter Buckley, points out.
I don’t see how this could be construed in any way other than defiance of the appellate mandate in that the Third Circuit explicitly found that Thrivest’s contracts were outside the district court’s authority to void.
While I have no affection for high-interest and often predatory lenders, players and their families have a right to straight answers regarding their obligations, and they also should not have their awards unduly tied up in a spat between a district court judge and a third-party lender as interest continues to accrue on their loans at a very high rate. In this instance, the harsh truth is preferable to pretty lies that players will rely on to their own detriment.
What’s Next?
This issue takes me back to my rookie year of blogging. I again ask the question, “What happens when a district court judge defies a mandate?” The seemingly unfathomable scenario now appears to be unfolding. I expect that Orran Brown and perhaps Judge Brody will claim to be in compliance with the mandate in that after the award is tied up, and the funder unsuccessfully compelled to accept rescission, the money would eventually be paid directly to the class member under the current Rules, but this still entails tying up the player’s award while bureaucracy takes its course.
The process described is basically:
- The Claims Administrator will request a waiver form from the funder and if the funder doesn’t comply, the class member will be paid, bypassing his attorney.
- If the Claims Administrator receives a waiver signed by the funder and the player in agreement with the initial sum advanced, the Claims Administrator will pay the funder the principal, but no interest and the class member will receive the balance. If the funder doesn’t sign a waiver permitting the contract to be voided, accepting only the principal, see point 1 and below.
Here’s the kicker that could almost read as an attempt to extort the lender:
Typically, funders don’t advance money to unrepresented class members, because the attorney is required to sign off on an agreement to repay the loan. In bypassing the player’s attorney, this leaves the lawyer potentially liable for repayment (although I’m not aware of any funders attempting to collect from the attorney at this point) and leaves both the funder and the attorney in danger of not being paid—at least until more litigation occurs and the player, who was deluded by both the district court and the claims administrator owes such an enormous sum that his settlement award is completely annihilated.
This circles back to the unanswered question, “Will the Third Circuit act decisively to enforce its mandate?” Or, “Will the authority of the appellate court be watered down by refusing to do take action?”
Update:
On Monday, the same panel who wrote the opinion ordered Judge Brody to respond by October 4. The petitioner, Thrivest is ordered to reply by October 8.
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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.
