May 8, 2018
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.
As Alzheimer’s and dementia diagnoses are targeted as fraudulent, often languishing for months, or even more than a year before removal from audit, and those that survive audit find themselves subject to appeals by the NFL if they somehow manage to be approved, attorneys for the players are pushing back – and the lead attorney representing the Settlement and the NFL are pushing back as well.
In March, Class Counsel Attorney Gene Locks filed a motion with the Court, which was later denied, requesting to share an administrative role in Settlement implementation. As a firm representing over 1,000 retired players, Locks sought to give the people for whom the Settlement was negotiated a stronger voice, and the motion was supported by joinder of numerous law firms representing the players. The motion was aggressively fought by both the NFL and Co-Lead Counsel Chris Seeger, as well as the Claims Administrator and BAP Administrator in the Settlement structure. In Part 1 of this series, I analyzed how Mr. Seeger manipulated numbers to give the appearance that the Settlement was in fact working and in Part 2, I detailed his meritless attacks on Locks and the numerous attorneys who filed joinder with him.
While omitting a response to many of the disparaging, and largely irrelevant statements made by Seeger, Locks aggressively set the record straight regarding his involvement with third-party litigation funding, since this appeared to be the basis for Judge Brody’s denial of their motion.
In the Motion for Reconsideration, Locks points out a rather strange requirement that the Court has imposed on attorneys seeking to share any portion of the common benefit.
I wrote about the disturbing implications of Judge Brody’s recent rulings and how they seemed designed to neutralize independent counsel shortly after these orders were issued. Since the questions in her mandatory questionnaire for all who worked as Class Counsel and as Executive and Steering Committee members related to their private work with clients in the settlement, as opposed to their work on behalf of the Class, the order made little sense. She wanted to know how many clients they have represented in the past and how many they represent now. How many claims have been approved denied and audited – and in view of her reasoning in ruling against the Locks Motion the most troubling question – how many of their clients have taken advances on their anticipated settlement awards. This has nothing to do with the legal, PR, and other work that was delegated to those who would supposedly share in the common benefit.
Will Judge Brody refuse to allocate any portion of the common benefit, to attorneys who may have signed off on loans for their player clients? Will they be penalized in some other way? If so, this is a very hypocritical stance on the Judge’s part unless she also addresses the fact that Mr. Seeger was on the board of directors for a litigation funding entity, Esquire Bank, and at least through 2016 solicited business for them from attorneys representing player class members in the Settlement.
The preceding email was one of many submitted by Attorney Craig Mitnick, who also faced accusations from Seeger about facilitating settlement assignments, and like Locks, he was precluded from directly responding to Seeger’s accusations. Shortly after Seeger’s acidic response to the Locks Motion and joinders, Mr. Mitnick filed a letter with the Court that explained that his roles were in signing off on loans to clients in desperate need who wished to pursue them and to assist Esquire Bank personnel at Seeger’s constant urging, which is well documented at this point. Judge Brody immediately sealed the letter and her office has provided various reasons for doing so to Mr. Mitnick, upon his inquires, none of which seem consistent or substantial.
Seeger’s solicitation for Esquire does not appear to be limited to Mr. Mitnick and his clients per this statement from the Motion for Reconsideration.
Even more troubling is this statement regarding a Special Masters ruling in which Esquire Bank appears to be exempted from scrutiny despite an obvious conflict with §30.1 of the Settlement Agreement.
For the observer it appears that Mr. Seeger managed to insert a confusing clause into the Settlement that would create a monopoly for Esquire Bank, eliminating competition, and even more troublesome, creating a trap for attorneys whose clients entered into agreements with other lenders.
A declaration from Attorney Michael McGlamry points out that he has never seen a “No Assignment of Claims provision” interpreted in the manner it has been in the Concussion Settlement, and also states like every other attorney who responded that no agreements with lenders have been signed for since Judge Brody’s December ruling which defined the interpretation for this settlement:
McGlamry goes on to explain that in other mass-tort and class action cases this type of provision “is typically in place to protect the defendant(s) and claims administrator from paying a claim only to have another ‘assigned’ claim submitted thereafter. Such provisions protect the defendant and claims administrator from the threat of multiple payments for the same claim and are typically proposed by the defendants.”
In view of the vast difference in how this non-assignment clause varies from others, McGlamry stated that he began to review emails, court filings and other relevant documents to see if there was something he missed.
He did, however come across this letter from Chris Seeger to the Class, which states, “Though the promise of cash-in-hand can be tempting, especially during trying financial times, if you are able to resist borrowing against any payments you might eligible for under the Settlement, you should.” Nowhere in the letter does it say that loans or advances are prohibited; it simply discourages, not prohibits class members from obtaining one. The same letter was also referenced and included as an exhibit with the Locks Motion.
Mr. McGlamry includes non-assignment provisions from numerous other MDL’s which were more strictly worded but did not prohibit class members from obtaining advances and wonders why the clause in this settlement has been interpreted so differently.
As Locks points out, to refuse to honor a client’s wishes would have been an ethical violation prior to clarification on §30.1.
It appears that plaintiffs’ attorneys were placed in a no-win situation in which their choices were to commit an ethics violation in disregarding their clients’ wishes, or to later be caught in a trap for a settlement “violation” that was never defined prior to Judge Brody’s December Order. In view of this, it seems little wonder that some observers find Judge Brody’s order “unprecedented.”
Clear Error of Law
Not only were what appear to be unfair double standards exposed but Locks Law, in their Motion for Reconsideration point out a “clear error of law.”
It would seem at the very least that Locks was denied due process in that he was not permitted to “face an accuser” and rebut the accusations through a reply brief, as is typical. Locks also points out that typically if an attorney or law firm is reprimanded in a court order, the order is normally placed under seal. While I tend to view public access to court documents as a valuable resource and hate to see information under seal unless it is sealed to protect personal details such the names of sexual assault victims or minors, or protected medical records, which redaction would typically accomplish, Locks has a very strong and valid argument that an accusation against his firm should not have been used as the basis for a judicial order without first having a chance to respond to the allegations.
Locks cites several cases establishing Third Circuit precedent which is binding upon the Eastern District of Pennsylvania to support his position and would appear to have standing to challenge in the Court of Appeals if Judge Brody does not reconsider what seems to be a hasty and unwise decision.
Locks goes on to remind the Court of the purpose of his original motion and the disconnection between the two issues.
Sadly, this seems to be just another episode in Co-Lead Class Counsel’s efforts to minimize and neutralize other attorneys in the Settlement and perhaps even a politically motivated deflection on the part of the Court, since the issues cited in the motion were never addressed in Judge Brody’s ruling.
Numerous declarations filed in response to Mr. Seeger’s proposed common benefit allocations revealed that Seeger made a habit of shutting other counsel out of most decision-making processes. I have written extensively on how since the Settlement was approved, the narrative was pushed by both Seeger and the NFL that players didn’t need to hire a lawyer because the claims process would be simple and straightforward. It has proved to be anything but that, however, the damage was done. When Mr. Seeger very publicly dropped contingency fees for his own small group of clients shortly after it was announced that the NFL would pay $112.5 million for attorney fees. Many if not most plaintiffs who had been represented by firms that initiated the concussion lawsuits that were consolidated felt that because their attorneys had not cancelled their contingency fee also, that they were victims of “double dipping;” this caused resentment in many instances and a loss of clients for the attorneys who had initiated the brain injury lawsuits.
The apparently devious plans of the NFL and lead lawyer Chris Seeger appear more and more glaring with each week that passes. On May 7, the NFL filed a Memorandum of Law in support of their Motion to Appoint a Special Fraud Investigator. In it they proceed scorched earth in attacking doctors, lawyers, and players, but especially lawyers.
The Memorandum cites the same allegedly fraudulent cases that the NFL has always cited, pointing out nothing new, but upping their efforts to disqualify as many doctors and lawyers as possible. Especially those who vigorously oppose them. While opposing counsel by nature seek to eliminate their opponents’ arguments, this is the first case in which I’ve observed an all-out effort to eliminate the attorneys, themselves, as the NFL seeks to remove as counsel anyone they can designate as having committed fraud – and in some instances that I’ve observed the only criteria is a disagreement on the player’s level of impairment or when he became impaired.
It should also not be lost on the Court (or the reader) that every effort for counsel who represent the interest of players either directly or indirectly has been forcefully met with opposition from every party involved in Settlement implementation. Therefore the NFL’s objection to the MoloLamken request to be appointed as special investigator was anticipated.
During Settlement negotiation MoloLamken represented a group of seven retirees known as the Faneca Objectors and during the course of negotiation worked to enhance the value of the Settlement for the players and point out its inherent flaws. After the Settlement became final, four of the players previously represented by MoloLamken opted out and the other three retained other counsel to handle their claims. Per a Declaration from Steven Molo:
The NFL is not looking for a neutral. The NFL seeks to annihilate claims in any way possible and this means annihilating lawyers. Their brief says that they seek to pay what they view as legitimate claims, but what they fail to clearly state is their definition of legitimate is “near dead.” If their evaluation of the compensable conditions as per the Settlement Agreement is correct (which I do not believe it is), this is far from what was promised to the players by both the NFL, Seeger, and BrownGreer, and represent a much more devious and pervasive type of fraud than what the NFL is alleging on behalf of the players, doctors, and lawyers.
If the NFL’s criteria for a legitimate claim equates to unable to function in any capacity, despite medical evidence of serious progressive impairment, and the Claims Administrator and Co-Lead Class Counsel are willing to go along with this interpretation, no living player who has a debilitating condition will be compensated until – possibly – he is on the verge of death. Players were told that if they had a Qualifying diagnosis of ALS, Parkinson’s disease, Alzheimer, or moderate or early-onset dementia by a board-certified neurospecialist they would be compensated. Instead, if a player has been diagnosed in an early or moderate stage of these conditions, which by their very nature is progressive, then players will not qualify for relief until they are unable to dress themselves, recognize their own names, or even be able to comprehend that their award was finally approved. This is the true fraud taking place in the much-heralded Settlement, and the nefarious reason for the war against independent counsel. For now, they are the only hedge standing in the way of the NFL’s ability to totally dismantle the Settlement as it was written and agreed upon.