August 22, 2019
On Tuesday, in response to a show cause order asking why the Third Circuit should accept a concussion settlement claim appeal, Wendy Fleishman of Lieff Cabraser filed two briefs supporting her client Amon Gordon and opposition responses were filed by the NFL and Lead Class Counsel Christopher Seeger. As you might expect the briefs were a bit on the dry side since purely legal issues were addressed as opposed to delving into the merits of the case, and I’ll recap the legalese in a bit, but first, I’ll look at an issue that’s anything but “dry.”
As is often the case, I felt another set of eyes would be useful in looking at the briefs to make sure there were no points that I may have inadvertently overlooked, and in this instance, the extra set of eyes landed on something rather revealing.
As chance would have it, none of the legal eagles I normally impose on were available, so I passed the briefs on to a retired NFL player instead. For the player, who happens to be African American, two things that I skimmed over immediately jumped out at him regarding the NFL opposition brief.
He immediately zeroed in on references to the word, “master” and found them to be very offensive.
While obviously, NFL counsel is citing from Federal Rules in reference to an appointed Special Master, and FRCP 53 is actually entitled “Masters” it does at a second glance seem racially insensitive. Perhaps the use of this term should be re-examined by the Rules Committee and replaced by something less offensive such as “referee,” “chancellor,” or “adjudicator” to better align with modern sensibilities.
His second observation is much harder to dismiss. The player was quick to point out that the caselaw cited by the NFL was in reference to a prison case and emphatically stated that he doesn’t feel this is coincidental, as NFL owners have always abided by a plantation mentality in which owners are the ranchers and players are the cattle. More recently the late Houston Texans’ owner, Bob McNair made comments about “inmates running the prison,” in reference to players protesting police brutality against black lives, which he later tried to clumsily walk back. Did the Paul Weiss attorneys in a nod to their client reinforce these notions with their selected case law?
The citation refers to a New Jersey lawsuit in which hundreds of inmates incarcerated at the Bayside State Correctional Facility in Leesburg, New Jersey filed a lawsuit alleging that following the fatal stabbing of Corrections Officer on July 30, 1997, a “lockdown” was ordered at Bayside, ‘during which they suffered a panoply of injuries at the hands of Defendants, in violation of their constitutional rights. Intentional or not, the prison inference seems to reinforce the notion that athletes are little more than property with as many rights as inmates, as inferred in the NCAA’s reliance on Vanskike v. Peters, in both Livers and Berger, exploiting a loophole in the Thirteenth Amendment that permits uncompensated inmate labor.
We tend to think of legal professionals, and especially Judges as trusted neutrals with the ability to control their emotions and rule strictly on matters of law, but an article entitled, The Disruptive Neuroscience of Judicial Choice by Professor Anna Spain Bradley, published in UC Irvine Law Review challenges that notion through a study of neuroscience and implicit bias. Likewise, an article published in the Atlantic says that “We’re hardwired to delude ourselves,” and looks at how confirmation bias can lead to irrational decision making. Psychology Today looks at differences in how the minds of liberals and conservatives are wired and, of course, countless studies have confirmed time and again how emotions tend to dictate human decision making.
Whether the NFL’s cite was mere chance, laziness, unconscious bias, or an intentional message hoping to trigger bias in a conservative judge can certainly be debated, but it would seem more appropriate to cite to a case similar to the concussion MDL. For example this would have served the same purpose and while being more appropriate:
“Claimant’s objection to the Special Master’s award and the Court’s scope of review of the Special Master decision are controlled by the Knauf Class Settlement Agreement—not Rule 53.” In re Chinese Manufactured Drywall Prods. Liab. Litig., MDL NO. 2047 SECTION L, at *2 (E.D. La. Apr. 12, 2018).
The Chinese Drywall case, which is another MDL tort would seem to be a closer approximation and more appropriate citation instead of a case with few commonalities aside from the fact that the majority of prisoner-plaintiffs were African American just as African Americans compose a majority in the National Football League.
As I began searching caselaw it became apparent that there were more offerings to refute the NFL’s argument than to support it. For instance, this from the Ninth Circuit, which happens to be a class-action lawsuit:
“The district court properly conducted a de novo review of the Appellants’ objections to the conclusions of law derived from the factual findings in the Report. Fed. R. Civ. P. 53(f)(4). The objections preserved Appellants’ right to appeal.” Carlsen v. Global Client Solutions, LLC, No. 12-35571, at *3 (9th Cir. 2013).
Perhaps the league’s expensive lawyers were merely in a hurry and cited a case they’d used before? Or perhaps not.
Pot and Kettle?
Here the NFL speaks with forked tongue. This is an instance of “do what I say, not what I do” since the NFL has challenged the Special Master’s finding of fact in at least three recent objections.
NFL Objection Regarding the Generally Consistent Standard
The Special Master’s decision:
The NFL raised an objection of the Special Master’s finding of fact to the district court alleging an abuse of discretion. On the eve of oral arguments, the NFL in a private conference with Judge Brody and Chris Seeger withdrew its objection prompting Brody to issue a sua sponte order instructing the claims administrator to develop new rules for MAF physicians, that require the doctors to step into the shoes of lawyers and explain why their diagnosis meets that legal standard, effectively granting a mooted objection.
The normal course of action would have been for the NFL to have filed a motion asking permission to withdraw their objection. This never happened or if it did, it did not appear on the public docket. Typically, a court’s response to a motion to withdraw is to grant the motion with no further action or elaboration. It seems highly irregular that the court would accept an oral motion to withdraw and then grant the withdrawn motion through a sua sponte order.
NFL Objection Seeking Mandatory AAP Review
The Special Master’s finding of fact decision
This time the Special Master did not note that his decision was unappealable, though it too, was based on a finding of fact. The Special Master probably realized at this point that the NFL would again be permitted to file an objection with the district court.
Judge Brody formally denied the NFL motion on April 12 in a textbook recitation of law stating that she was bound by the settlement agreement but on April 11, through another sua sponte order, she effectively gave the NFL even more than it asked for in allowing the claims administrator to use AAP review on the front end of claims supplementing the back-end discretionary use of the AAP during appeals by the Special Master.
NFL Objection to Special Master’s Findings and Remedies
The latest known example of the NFL’s failure to accept a Special Master’s finding of fact is currently awaiting a ruling from Judge Brody. In this objection, the NFL claims abuse of discretion because the Special Master opted against pursuing further audit investigation of a group of five claims and imposing the punitive punishments of permanent disqualification from the settlement program and pursuit of criminal fraud charges which carry a penalty of up to 20 years imprisonment.
Ok, so we’re off in the weeds a bit in our review of briefs but have covered some important background. Thus far without really delving deeply, we’ve already refuted the NFL in two areas so now, let’s take a look at the actual arguments.
The Purpose of the Briefing
Amon Gordon’s claim denial was appealed to the Third Circuit because the court incorrectly imposed the post-effective date standard for “generally consistent” as opposed to the correct pre-effective date standard at which his claim stood scrutiny three times.
Because the settlement agreement says that the district court’s authority is “final and binding” the Third Circuit has requested briefing from all parties arguing why the appellate court should accept the appeal, or why it shouldn’t.
Attorney Wendy Fleishman of Lieff Cabraser filed two briefs on behalf of plaintiff Amon Gordon. The NFL and Lead Counsel Chris Seeger filed opposition briefs.
The Plaintiff’s Response
In a surprise move, Fleishman requested a stay and limited remand of the appeal.
Before getting into the reasons for the stay and remand request, Fleishman cites extensive caselaw supporting the right of a party to a settlement agreement to appeal to a higher court.
As I stated previously there is ample case law to support this position so I won’t bother to elaborate on each citation, but this one particularly caught my eye.
In Reynolds, class action plaintiffs in a similar position to the retired NFL players were found to have not forfeited their appellate rights despite stronger language in their settlement agreement.
As we’ve already noted, the Special Master’s fact-finding decisions are deemed to be “final and binding” yet the district court has entertained multiple objections. While the settlement does state that the [district] court’s decisions are also final and binding, if appellate remedies were eliminated, settlement class members would have no protection from errors of law and the district court’s abuse of discretion, which the Third Circuit has already found in an appeal filed by lenders whose contracts Judge Brody sought to void.
Fleishman gives arbitration as another example in which “final and binding” decisions are appealable. She states, “Both well-established precedent and common sense teach that the District Court’s order is “final and binding” as to proceedings before the Claims Administrator, the Special Master, and the District Court, but does not bar an appeal, much in the way that a “final judgment” marks the conclusion of proceedings in one court and the initiation in another,” using Third Circuit precedent to back her words.
The Opposition Briefs
In addition to the NFL’s brief, Seeger also filed a short letter of opposition. While as noted earlier, the NFL did attempt to present some caselaw barring appellate review, essentially both Seeger and the NFL conceded “the final and binding” language contained in the settlement agreement isn’t preclusive to review, however, Seeger attempted to narrow down the circumstance in which review is allowable.
In attempting to differentiate the Gordon appeal from the Third Circuit funder review, he writes, “Unlike the district court’s class-wide determination invalidating assignments of Monetary Awards that was the subject of this Court’s April 26, 2019 decision in this litigation, however, see 923 F.3d at 103, 106, the order here does not resolve any important question separate and apart from the merits of the NFL Players’ Concussion Litigation.” The NFL made a similar point but this is not correct.
Fleishman, on behalf of the Gordons, seeks review and clarification on pre-effective date standards of claim evaluation, and therefore, the appeal does not revolve around the narrow merits of one individual case as the NFL attempts to infer.
That “generally consistent” is applicable isn’t the issue in play here, but rather the nuances of generally consistent when applied to pre-effective date claims. This is the issue the NFL tries to tap dance around and distract from. The settlement agreement provides for varying standards for diagnoses made prior to the date of preliminary approval and after. But as a result of the NFL’s repeated attempts to make generally consistent into identical, pre-effective date claims like Gordon’s are often evaluated on the incorrect standard and wrongfully denied. If pre-and post-effective date claims were to be evaluated identically there would not have been a need to distinguish them in the settlement agreement. Fleishman points out in her district court brief filed today, that the BAP standard that the NFL seeks to enforce didn’t even exist when Amon Gordon was diagnosed with dementia at the young age of 33!
That the Gordons through Fleishman are the first to appeal is irrelevant. This is can be explained in part through Fleishman’s careful pleading which preserved the right of appeal, and also perhaps her role with one of the nation’s top-tier plaintiffs’ firms. This experience may have prepared her with a greater familiarity with the particulars of the elements necessary to present to the appellate court. While the Gordon appeal is specific to an individual claim, the principle the claim is centered on could easily be joined by dozens of firms representing hundreds of pre-effective date players who’ve been wrongly subjected to post-effective date criteria.
Plaintiff’s Motion for Stay and Limited Remand
In addition to the response requested by the court, Fleishman tossed another element in to play with her motion for stay and limited remand.
FRCP 60 is a remedy for an error on the part of a district court’s judgment and may be initiated by the court when the error is discovered or by a motion from the party affected by the error within a year of judgment, or by leave of an appellate court. Fleishman cites three provisions under Rule 60 through which relief could be granted to Gordon and emphasizes the extreme hardship he faces.
Rather than face the inevitable delays of an appellate review, Fleishman seeks to offer Judge Brody an opportunity to correct her own error and avoid having the dirty laundry of improper modifications to the settlement agreement aired in front of the Third Circuit.
Obviously, this isn’t the outcome many had hoped for when Fleishman filed the appeal and observers looked on hoping the scrutiny of the appellate court would put an end to the seemingly infinite modifications and obstacles the first two and a half years of implementation have presented, but it does give Fleishman two chances to have the error related to pre-effective date diagnoses corrected instead of only one.
The degree of impact on the settlement as a whole depends on what happens after the motion is filed in Judge Brody’s court.
It’s possible the NFL will seek to settle with Amon Gordon’s in order to moot Fleishman’s powerful Rule 60 motion that was filed late this afternoon and to prevent any chance of it reaching the appellate court. If this occurs, the “nightmare on Market Street” will come to an end for Gordon and his family, but Judge Brody’s implementation decision would stand. The NFL must now weigh its options and decide if they wish to continue their scorched earth attack against Gordon or relent and pay his claim, or gamble that a reversal by Judge Brody or the appellate court would open the door to compensation of other players evaluated and denied through an incorrect level of review.
The NFL does not relent, and Judge Brody is forced to re-evaluate. Whether through an honest re-examination of the facts or motivation to avoid appellate scrutiny, Judge Brody corrects her order and differentiates between pre and post-effective date claims ruling that the additional requirements imposed on post-effective date claimants are not required for pre-effective date claims in order to be considered “generally consistent.” In this instance, the singular error of law will have been corrected opening the door for re-evaluation and approval for other claimants who’ve been wrongfully evaluated and denied on an incorrect and unreasonable interpretation of the settlement agreement. As Fleishman brought out in the Rule 60 motion, Gordon was diagnosed before the BAP or BAP standard ever existed. A ruling favoring Gordon should save the remaining pre-effective date claims still being processed from the obstacle course that others like Gordon have had to traverse. The reversal of this decision would have no impact on other settlement modifications such as those imposed by the new MAF Rules.
The question at hand: “Is Judge Brody willing to admit she made an error?”
In my opinion, “Scenario 2” would be a sound decision on Judge Brody’s part but past behavior, including attempts to circumvent a Third Circuit mandate make it appear unlikely that she’d be willing to concede. Since she’s shut out, for all practical purposes, any voices who have endeavored to present alternate viewpoints to the NFL’s portrayal of players as criminals and Seeger’s apparent appeasement strategy, it’s possible she is completely clueless as to the nuances involved. Brody’s prior rulings would tend to indicate a tendency toward implicit and perhaps subconscious bias. Perhaps she finds the white attorneys representing the NFL more relatable than the predominately black players who seek to collect from their clients? As a Bush appointee, it can be presumed that Brody is a conservative judge. The Psychology Today article noted that conservatives “tend to be more hostile to immigrants, foreigners, and racial or ethnic minorities and to view them as more of a threat,” and characterized conservatives as lacking in empathy compared to liberals.
Retired Judge Richard A. Posner, in his book, How Judges Think, writes, “an American judge, especially at the appellate level, is an occasional legislator, yet with no constituency to answer to, his judging is likely to be influenced by temperament, emotion, experience, personal background and ideology,” which is supported by the neurological and neuropsychological studies cited by Professor Bradley. providing a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. It’s entirely possible that NFL counsel have identified certain traits and characteristics and have used word choices and inflections to reinforce any confirmation bias they may have identified in order to achieve their goals.
Judge Brody’s preference for an opaque docket seems to further support a tendency for a suspicious and overly cautious worldview. This mindset also tends to reject accountability.
This scenario assumes that Judge Brody denies the Rule 60 motion and the issues are decided at the Third Circuit. There are far too many variables involved to even attempt a prediction of the degree of appellate scrutiny that will take place with a random, and as of yet, unknown, panel of three judges. The Third Circuit panel could take a very narrow view, examining only the elements directly in dispute regarding Amon Gordon’s claim. A reversal of Judge Brody on narrow grounds would result in a similar result as “Scenario 2.”
If the appellate court feels Judge Brody has abused her discretion and is concerned that the abuse is habitual, it’s possible that they may take a broader look at other elements in play, however, typically appellate courts are reluctant to broaden their scope of review and tend to rule narrowly in order to avoid unintentionally triggering unintended precedent.
Should the Third Circuit decline appellate review OR accept appellate review and affirm Judge Brody’s decision, pre-effective date claimants will continue to be subjected to unfair scrutiny with few remaining options. Fleishman could apply for an en banc review, which would mean that the case would be argued again in front of the entire panel of Third Circuit judges as opposed to a random panel of three, however en banc petitions in the federal appellate courts are typically granted for only .03% of petitioners, leaving the odds of a 99-yard Hail Mary in the final second of a football game standing a better chance of completion. The only remaining option would be the United States Supreme Court where the odds are even slimmer, and since this issue doesn’t hinge on circuit splits or a broad issue affecting a large number of people, chances would be virtually nil.
A defeat at the Third Circuit would put an end to Amon Gordon’s claim, leaving him and other pre-effective date claimants denied on an erroneous standard of review. Under principles of res judicata, or “a matter already decided” attorneys would be precluded from raising this issue again at the Third Circuit. Res judicata would not, however, deny attorneys the ability to appeal other issues that broadly impact the class. Still, a negative result would likely be discouraging for others who might consider this path, but alternately should Gordon prevail before the Third Circuit or obtain a Rule 60 reversal, other attorneys would seem more encouraged to consider Rule 60 and appellate review as viable options for addressing other liberties taken with the settlement agreement.
As you can see, there are many, many variables in play, each of which could direct a very different outcome. Because of this, it’s impossible to predict with any degree of accuracy what will take place as the courtroom drama unfolds.
Fleishman’s Rule 60 brief is brilliant. An article covering that one document will follow soon. For now, the opportunity for change rests with Judge Brody and may ultimately be decided at the Third Circuit as the clock continues to tick.
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