November 3, 2019 (Updated)
Power struggles between settlement funder Thrivest, settlement administration and the court(s) have left players who took advances from Thrivest Specialty Funding in a 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.
We’ve written quite a bit about funding issues and you can read about the more recent events leading up to today’s post in our pieces about Thrivest’s petition for writ of mandamus and a tap-dancing federal judge, but for now, a relatively quick synopsis and an attempt to detangle the knot. If you’ve followed this story, you can jump ahead to new developments by clicking here. Otherwise, you might want to read or skim the preceding sections that fill in the background.
When retired NFL players were encouraged to sign on to the uncapped settlement with the NFL for compensation for their brain injuries sustained while playing football, high-interest settlement funders came out in droves creating a feeding frenzy to contract advances for their anticipated awards.
Many players and/or their widows who’d been suffering for a long time and found their finances decimated welcomed a chance to obtain the cash needed to keep their homes out of foreclosure, avoid bankruptcy, or pay for medical treatment. Others whose needs were less dire were nevertheless tempted when quick cash was dangled in front of them like a flashing neon sign. “What can it hurt?” they thought—after all class counsel and the claims administrator assured players if they already had a qualifying diagnosis their award would be processed quickly. They didn’t anticipate months or possibly years of holdups while interest continued to accrue on their advances.
In December 2017, Judge Anita B. Brody voided all “claim assignments” leading players to believe their funding agreements were no longer valid. The order seemed benevolent, and certainly had her order held up under legal scrutiny, it would have benefited players who took funding advances, but things are not always as they seem.
In order to frame how the order came to be, one must step back a few months. In March of that year hardly any dementia claims had been paid and in a bold move, Gene Locks, joined by more than a dozen other prominent lawyers sought to wrestle administrative control of the settlement from Chris Seeger, Judge Brody’s hand-picked lead counsel. Both Seeger and the NFL railed against Locks’ attempt to direct and reform the manner in which the settlement was being implemented. The NFL cried fraud and mounted a complex campaign to discredit players, attorneys, and doctors—a campaign they continue to wage even now. Seeger picked up on the claims assignment prohibition clause in the settlement and portrayed his challengers as facilitators of a prohibited action in accordance with the agreement, and the argument (as well as then one made by the NFL) caught traction with Judge Brody.
Brody demanded that all attorneys seeking common benefit fees disclose all agreements their clients had made with third-party funders. As the attorneys complied, they submitted briefs demonstrating among other things that the settlement language is no different from anti-assignment clauses in other settlements in which advances are not prohibited, but rather included to protect defendants from non-parties asserting claims against them. Some attorneys pointed to Seeger’s involvement with Esquire Bank and how he solicited them to either assist Esquire in developing advances geared toward settlement members and/or solicited them to use Esquire for their clients’ funding needs.
Through forcing a need for this briefing, Judge Brody catapulted the law of unintended consequences into motion.
The Third Circuit Becomes Involved
In Judge Brody’s order she agreed that funders would be reimbursed the principal they advanced to players with no interest if they would agree to rescission. A few took her up on the proposal but most balked, and then in a strangely ironic twist, Brody asked Gene Locks, whom she’d previously deemed unfit to administer the settlement because of his supposed facilitation of advances for some of his clients, to negotiate with the funders and come up with an acceptable solution. Locks negotiated a return of principal plus 10% interest for funders who would take the deal, and many did, saving numerous retired players thousands and tens of thousands of dollars.
Three funders, RD Legal, Atlas, and Thrivest refused to compromise and took their beef to the Third Circuit Court of Appeals. Upon examining the arguments and legal questions, the appellate panel reversed most of Judge Brody’s order, finding that she had exceeded her authority, but they upheld a narrow portion of it for agreements that contained “true assignments” in which the funder could step into the shoes of the player and file a claim against the defendant through the claims administrator, seeking repayment from the same. Most agreements, including those of Thrivest did not contain “true assignment” clauses and sought only repayment after the player received his award. The court ruled that advances under this provision could not be voided and added that even with funders like RD Legal which did assert a “true assignment” only that portion of the contract could be voided and not the agreement, or loan in its entirety. The Third Circuit also opined that arbitration provisions within funding agreements were valid and enforceable.
Tap Dancing 101
Judge Brody’s reaction to the Third Circuit opinion and mandate paints a portrait of a spurned judge, complying with certain portions of the mandate while cleverly tap-dancing around other instruction.
In a complete reversal of her denial of Thrivest’s right to pursue arbitration against William White, which was reversed by the Third Circuit, she ruled that Toby Wright must comply with the arbitration provisions in his funding agreement. Oddly, she made no reference to the Third Circuit opinion, and instead cited Supreme Court precedent that was in direct conflict with her overturned decision on William White’s arbitration.
In this aspect, she is compliant with the mandate; the area of reviewing contracts and determining prohibited assignments is where things get dicey.
According to Thrivest and seemingly confirmed by the claims administrator whose words claim compliance but whose actions suggest otherwise, it appears that the claims administrator is still using Judge Brody’s order as the benchmark as to whether the funder agreements contain a prohibited assignment. He is still seeking to negotiate rescission as before. Then, if the funder refuses rescission, the award in its entirety is issued to the player, bypassing his attorney who was required to sign off on repayment for the funder.
How this Hurts Players
So far, you may be thinking this is a player-friendly action. While it may be conceived as that, the end result is anything but. For every day that a funding advance remains outstanding, interest accrues at a very high, even predatory rate. While the Third Circuit offered no opinion as to if the contracts are ultimately enforceable, it indicated:
- Challenges to the provisions would be based on usury and predatory lending laws
- The District Court in its capacity of overseeing the settlement may only void true assignments and even if true assignments are found, may not void the agreement in its entirety
- The District Court in its capacity of overseeing the settlement may not adjudicate issues related to third parties that do not fall within the specific scope of settlement administration
- Arbitration agreements are enforceable. Thus far arbitration has been in favor of Thrivest.
Every delay, whether in evaluating whether or not an assignment is prohibited, attempting to negotiate with Thrivest (or other funders similarly resistant) adds another day’s interest to the amount a player owes. Interest also continues to mount when contracts are arbitrated, therefore if a player wishes to challenge the enforceability of the contract, it should be done on issues of usury laws or inability of the player to enter into a contract due to cognitive impairment. Arguing that the contract is void and unenforceable due to Judge Brody’s order seems to be a waste of time, and here, time is money. Should a player be ordered to pay the advance in accordance with the funder’s specified interest rate, he would also be responsible for paying the funder’s attorney fees in addition to principal and interest.
After Thrivest petitioned for a writ of mandamus, the Third Circuit ordered Judge Brody to respond.
In what seems unusual, instead of personally responding as Judges Aaron Polster and William Alsup did under similar circumstances, Claims Administrator Orran Brown and Lead Counsel Chris Seeger filed briefs on behalf of respondent Judge Anita B. Brody.
As expected, both argued that the district court was in compliance.
In his brief, Orran Brown, sidestepped Thrivest’s allegations claiming the resolution process was completely voluntary and that 24 resolutions had been made through that process. What wasn’t asserted is that Thrivest has made clear it will not participate in that “voluntary” process and that while it is ongoing interest continues to mount.
Brown pointed to changes in language that he says brings them into compliance with the Third Circuit Opinion. It would seem that based on Thrivest’s allegations the claims administrator is saying all the right words but not adhering to them in deeds. For instance:
This looks like a smokescreen to me. Yes, it would seem that the claims administrator would need to review assignments to see if they are true assignments or non-prohibited advances. The phrase “determine who was entitled to payments and the amount of those payments” infers that the settlement administrator has taken it upon himself or pay funding assignments he deems to be legit; aka those who’ve accepted rescission. The reality is that the claims administrator should not be paying any funder for any reason. If a contract has the rare “true assignment clause” then the agreement should be voided per the Third Circuit’s affirmation of that narrow portion of the District Court order. Otherwise, the claim should be paid in the same manner as any other claim—for represented class members, to their attorneys and for unrepresented class members directly to them.
Chris Seeger’s brief was a bit more interesting than Orran Brown’s. Like Brown, he argued the court was in compliance, but one paragraph of his brief caused me to do a double-take.
Huh? While the appeals court did state that it expressed “no opinion as to the ultimate enforceability,” I couldn’t recall anywhere in the opinion where the Third Circuit made any kind of correlation equating “true” and “false” assignments. In that the same panel who issued the opinion was also handling the mandamus petition I found it odd that Seeger would misquote them. Since the case citation Bluebook has its own divisions that were referenced by Seeger, I pulled the opinion up there to see exactly how sections 112 and 113 read. This is what I found.
I can’t find any reading that would interpret the actual words of the opinion with the interpretation expressed in Seeger’s brief and questioned his logic in misquoting the Third Circuit. Strangely, in the end, it didn’t seem to matter. Most of Seeger’s brief focused on the fact that mandamus is an extraordinary remedy and that Thrivest hadn’t exhausted all available remedies through the district court (letter vs. motion.) He pointed to Judge Brody’s compliance regarding the enforcement of arbitration agreements. Apparently, that was enough to satisfy the Third Circuit, since it’s presumed that they would give a district court judge the benefit of the doubt since appellate mandates are rarely defied.
The Third Circuit denied Thrivest’s petition without prejudice, meaning the matter could be revisited in the future after district court remedies have been exhausted.
I had hoped petition for writ of mandamus might draw the Third Circuit’s attention to wider indiscretions on the part of Judge Brody, but that didn’t take place. Her compliance in the enforcement of arbitration provisions and Brown and Seeger’s emphasis on the same appears to have provided cover for her for the time being. It’s unknown at this point if the claims administrator will make any changes to be in true compliance or not, but it seems unlikely.
In the tug of war between Thrivest and the Court, players are left in a knot, and, in my opinion, worse off than had the claims administrator and court left matters alone.
White, Wright and the Threat of Incarceration
Thrivest plays hardball. There’s really no other way to say it. They’ve established their business model in making predatory loans to vulnerable people and then enforcing them without mercy.
William White and Toby Wright are two players currently caught in the tangle. Both White and Wright believed their loans were void, invalid and not enforceable so they refused to pay what Thrivest said they owed and Thrivest wasn’t interested in the rescission provisions offered by the court.
Thrivest sought to pursue arbitration in line with its contracts. Judge Brody denied Thrivest’s motion to compel for White and was reversed at the Third. Arbitration in his case commenced. Having been reversed on White, Judge Brody granted Thrivest’s motion to compel arbitration for Wright.
For both men, preliminary arbitral rulings mandated the men deposit the money in dispute into escrow accounts until a final resolution is reached. Neither man complied.
Thrivest returned to Judge Brody and sought sanctions against the men that included freezing their assets and incarceration until they complied. Brody ordered the men to respond as to why they didn’t comply and White’s attorney, Robert Wood, said that he was destitute and unable to, submitting a bank statement with less than $500 in funds. Wright ignored the order as well as his attorney’s attempts to communicate with him forcing him to withdraw his representation of Wright.
Since Wood’s production on behalf of White failed to show what became of his settlement proceeds and Wright produced noting at all, she found both men in contempt of court and imposed sanctions, ordering their assets frozen until such time that the money is deposited into an escrow account or the men convincingly demonstrate their financial insolvency and inability to comply. At present, as Wood continues to litigate on his behalf, it’s unclear if White will be able to produce sufficient evidence of his inability to pay.
White update: Thrivest has produced documents that imply that White invested in property, previously owned by his parents shortly after receiving his settlement award in April 2018. The court has ordered him to produce documents showing where the award was spent by November 5 or face further sanctions. The court’s specificity regarding what other sanctions might be applied is unclear, however, Thrivest doubled down on its request that White be taken into custody to compel compliance. Prior to the order to compel, Robert Wood, White’s attorney made two rather interesting arguments. First he stated that the Third Circuit ruled that the District Court has no authority over a player’s award once it has been paid. This much is true. It’s much less clear that the district court couldn’t compel an accounting (which it did.) The second argument puts the problem squarely at the feet of Judge Brody.
However White may have disposed of his award proceeds, as Wood stated, the District Court had declared White’s contract with Thrivest to be void and Thrivest had rejected the court’s rescission, after which the Court denied two motions to place the disputed funds in escrow, as White has now been ordered to do. It’s hard to blame a player under this circumstance and it seems the District Court aka Judge Brody should take some accountability for the current situation.
On the other hand, Wright has apparently “gone dark,” refusing to comply or acknowledge anyone including his own attorney who is now his former attorney. In a status report, Thrivest states they’ve been unable to identify any open bank accounts connected to Wright and have subpoenaed Citi Bank to find out where his settlement award was routed.
Thrivest has now doubled down on its efforts to see Wright incarcerated until he’s in compliance.
Judge Brody has yet to rule, however, there’s a very real possibility that Wright will wind up in jail. White isn’t out of the woods yet either but seems to have more leeway to negotiate because he is represented by an attorney who may be able to produce the required documents. Woods has noted in his filings that White is unable to use his arms and perform the most basic of tasks due to ALS, which progressively robs the person of all muscle control include the ability to breathe, and that he would likely die incarcerated because he is unable to care for himself and would be without a caregiver. Thrivest is an entity that would throw a man to his death rather than write off debt. That’s who players, the claims administrator, and the court are dealing with and also why players should be given the entire picture when counseled as to whether and how to challenge the debt.
Each delay in which interest continues to mount could have dire consequences for impacted players.
The Knot Needs to be Untied
There’s a very simple way to prevent this from happening, but the court, in apparent stubbornness, has placed the very players it purported to help in danger. Much harm to players could be avoided by simply following normal procedures and releasing the award to a player’s attorney’s escrow account.
Typically when a player’s award is paid, this is what happens. The attorney then deducts his fee and any other amounts owed (such as a funding agreement) and releases the balance to the player. Judge Brody the claims administrator, and Special Masters have adopted rules that send the award straight to the player, bypassing his attorney and eliminating an important safeguard. Doing this decreases the likelihood that a cognitively impaired player will take the debt seriously and take the correct measures to protect himself.
I’m unaware of Thrivest or other funders contracting with unrepresented players because they require the attorney to agree to repay the debt once the award has been issued. If the player wishes to dispute the amount owed to Thrivest, the attorney would be in a position to repay at least the principal, along with any possibly undisputed amounts to Thrivest immediately while holding the amount in dispute in his escrow account until a resolution is reached. Doing so would substantially reduce the accrual of interest because the interest would be calculated on a greatly reduced sum. Repayment of the principal would also make it less likely that Thrivest would seek to have a player tossed in jail or attach his assets while the matter is under arbitration, knowing that the balance is held safely in escrow until the matter is resolved.
There’s no good reason for not implementing this simple change immediately; failure to do so will only cost players money and quite possibly their freedom.