April 28, 2018
Sheilla Dingus
In the largely private world of class action and multi-district litigation settlement implementation one has reason to question the efficacy for plaintiffs versus the defense of settlements which often seem more valuable to defendants than those they were designed to compensate. A prime example of this is the much-heralded NFL concussion settlement.
Initially presented to the Court as a $765 million settlement, rejected, and re-submitted as an uncapped settlement valued at approximately $1 billion, the once highly publicized settlement is now largely litigated in private with occasional glimpses into the process by way of the public docket. The reason for this is that individual claims are handled through the Claims Administrator and a panel of AAP doctors who are overseen by Court appointed Special Masters. On the surface it makes sense. The lawsuit settled, and individuals’ personal medical histories should be confidential, but on the downside, processes are enabled to shield from public view the manner in which procedures detrimental to the Class of Retired NFL Players are being argued.
On April 26, Judge Anita Brody issued an order deferring Settlement implementation issues to Special Masters. The order reads, in part:
One attorney whose opinion I sought regarding the order said that he believes Judge Brody is “tired of dealing with these issues,” and also that “she’s getting some cover.” Another attorney that I spoke with agreed with my perception that she’s tired of media reports on recent filings which object to the manner in which the settlement is being implemented and has decided to remove them from public scrutiny.
Prior to this order several important public filings emerged in the Concussion Settlement in March and April. In March, Class (but not Co-Lead) Counsel Gene Locks filed a motion requesting to share in the administrative duties of settlement implementation. Shortly after the filing I wrote about how unusual it is for Class Counsel to publicly oppose Lead Counsel and some of the political and potential career ramifications for those who filed and also those who filed joinder with the motion.
Just prior to the Locks Motion Co-Lead Counsel Anapol Weiss, who at least in title should be equal with de facto Lead Counsel Chris Seeger filed a highly unusual motion on behalf of his clients Wayne and Garland Radloff, demonstrating the unreasonable scrutiny and delays an obviously sick and suffering retiree is forced to endure. Included with the motion were medical records to back up the legitimacy of the claim. Oddly, the Radloffs’ claim was approved almost immediately after the motion was filed forcing Weiss to withdraw it as moot. Mr. Seeger seems to see this as a success:
Advocacy for Fairness in Sports and probably most Class Members would agree that the Radloff claim is a prime example of the Settlement’s failures. In support of the Settlement’s success, Seeger states that Radloff received a Notice of Monetary Award. What Mr. Seeger fails to include is the fact that the Radloff claim languished for nearly a full year without approval. During this time Mr. and Mrs. Radloff lost their home to foreclosure, as their medical bills continue to mount. Seeger states that the claim was approved prior to the filing of Anapol Weiss’s motion on behalf of Radloff, however if this is true, no explanation has been offered as to why his attorney was not notified of the approval. Perhaps if one believes in coincidence this is believable. Egregiously omitted in Seeger’s response, however, is the fact that the Notice of Monetary Award that was issued is only about half the amount Mr. Radloff’s diagnosis should receive according to Settlement’s chart describing awards based on diagnosis and age at diagnosis. This has placed Mr. and Mrs. Radloff in the unfortunate position of accepting half of their entitlement due to their desperate financial and medical situations, and results in a similar loss of value as a claim assigned to a litigation funder. In the world according to Chris Seeger, this is a glowing example of success.
In April, responses to the Locks Motion appeared on the docket. The NFL predictably cried, “fraud” as they have done consistently with legitimate disability claims. In response, I wrote about how much of the so-called fraud is a problem of the NFL’s own making, and if not for their actions to confuse and discredit impaired retirees the truly fraudulent claims would be relatively easy to detect.
Worth noting from the NFL’s preliminary statement, which was filed several hours prior to Co-Lead Class Counsel Chris Seeger’s response was the apparent collusion between the two Parties in their opposition of Locks and the joinders and defense of the Settlement. If not for a coordinated effort, how would NFL Counsel have access to the document hours before its filing?
I had planned to address Mr. Seeger’s response immediately after my analysis of the NFL brief, but was delayed when attorney Craig Mitnick filed a letter with the Court which included email exhibits pointing to Mr. Seeger’s involvement with litigation funder, Esquire Bank as a rebuttal to some of the claims made in the Seeger brief.
Shortly after the Mitnick letter was filed, Judge Anita B. Brody sealed the letter and reiterated that she would not entertain responses to the briefs filed by Co-Lead Class Counsel and the NFL. Later she issued an order ruling in favor of the NFL and Mr. Seeger. As I wrote in an article detailing the ramifications of her order upon the Class of Retired NFL Players, I sought to find a good reason as to why she denied the voices of anyone and everyone who sought to make the implementation more equitable to the Retired Players including many of the players themselves.
I then backtracked to address Mr. Seeger’s filing. In Part 1, I focused on the contorted and misconstrued statements and figures he presented in defense of his position and the Settlement Agreement. This continuation will examine his allegations against the group of attorneys he opposed.
Seeger’s most aggressive attack on counsel fell upon Gene Locks:
Seeger went on to list problems in the Dalkon Shield Litigation in which he implied misconduct on the part of Locks. A closer examination of Seeger’s assertions reveals that the Dalkon Shield Litigation is a 30-year old bankruptcy case in which the “cause” which led to Mr. Locks removal was inexperience according to the New York Times. It appears the Mr. Seeger is reaching if he finds it necessary to go back to a three-decades old case to discredit Mr. Locks.
He does reference Mr. Locks 2009 case Diet Drugs but the allegations cited were unsubstantiated.
The Morris lawsuit cited was a separate action filed by a disgruntled employee who claimed wrongful termination following a dispute regarding the fees that she was entitled to in the Diet Drugs case and whether the clients she represented were clients of the firm or her personal clients. The issue referenced by Mr. Seeger was an unsubstantiated detail in Ms. Morris’ perhaps retaliatory allegations and not the crux of her complaint.
Mr. Seeger alleges that Mr. Locks has undermined the Settlement by helping to spread misrepresentations through his client, Fred Willis.
Advocacy for Fairness in Sports has received many of the emails described by Mr. Seeger which he claims are misrepresentative and has found little if any misrepresentation in the emails. Instead, Mr. Willis has endeavored to inform fellow retired players of the problems and challenges that have been encountered during Settlement implementation. Since Mr. Seeger prefers to proclaim the Settlement as a success, despite the difficulties and despair its implementation has imposed on the retired NFL community, an opinion different from that of Seeger appears to be the only requirement for “misrepresentation” and thus his claims against Willis and Locks.
Mr. Seeger alludes to wrongdoing by Locks Law Firm and others who filed joinder with their motion in that a complaint was filed against the firms.
This is also misleading. A quick search of the docket reveals that the complaint was prompted by the confusion and resentment regarding Class versus individual representation in the Settlement, a situation largely orchestrated by Mr. Seeger as I detailed in Part 1. Claims against Locks were ultimately dismissed as well as disposal of the claims against the other firms in similar manner.
Throughout the brief Seeger makes disparaging remarks akin to that of a petulant child about Locks and the attorneys who filed joinder with him. Upon investigation of the points raised by Mr. Seeger, Advocacy for Fairness in Sports finds his arguments both misleading and insubstantial.
Seeger alleges that the Anapol Weiss Motion was coordinated with the Locks Motion as it preceded it by a day. While he seems to find this objectionable, he apparently didn’t have a problem coordinating his own response with NFL Counsel as pointed out earlier.
Seeger claims that Charles Zimmerman, who is his counterpart in the NHL Concussion Injury Litigation “simply does not understand the settlement.” As an attorney who unlike Seeger with the NFL actually managed to obtain discovery against the NHL, this makes no sense. Zimmerman obviously is competent to read and understand the Agreement; the fact that he disagrees with Seeger in how it should be implemented, apparently equates to not understanding it.
Seeger’s complaints against Lance Lubel apparently stem from the fact he is an Objector, and as such has consistently pointed out Settlement flaws. Seeger attacks nothing whatsoever in Mr. Lubel’s conduct or arguments but instead his “longstanding contention that the Settlement’s promised benefits are illusory.” Mr. Lubel appears to be correct in his assessment.
Seeger misleadingly claims that attorney Bruce Hagen has no standing to file joinder because “he has not registered for any players,” having complete knowledge that Mr. Hagen is co-counsel with Pope McGlamry for over 400 players as well as a member of the Plaintiffs’ Steering Committee. He likewise finds fault with attorneys Franco and McCorvey because they have filed no claims. Numerous attorneys I’ve spoken with are taking this approach in that they do not wish to have their clients subjected to the contorted processes that are now underway in hopes that the problems will be corrected before they file. The fact that they feel prohibited from filing claims that will be fairly evaluated gives them ample standing to object.
Mr. Seeger accuses the Neurocognitive Football Lawyers of fraud. They addressed those allegations in a response that leaves room for reasonable doubt. One of the fraud flags against the four firms composing this group was that most of their clients saw doctors local to the law group’s Tampa location.
They point out the “Catch 22 paradox” that had they retained doctors across the nation they would have been accused of doctor shopping.
Funding Agreements
The most hypocritical and vitriolic attacks launched by Mr. Seeger were in regard to Settlement funding agreements.
There are numerous issues in play which Mr. Seeger fails to acknowledge, not the least of which is his own involvement with litigation funder Esquire Bank.
Instead, he and apparently Judge Brody see Locks as unfit to serve as Administrative Class Counsel because he merely signed off on loans that his clients wished to pursue. While one may find the loans predatory and undesirable, it is not an attorney’s role to forbid his clients from acquiring one, and in fact there is a solid argument that a client could have “cause” to dismiss his lawyer for refusing to sign off on an assignment he felt he needed to save his home from foreclosure or meet another pressing need.
It is also troubling that while Judge Brody has looked the other way on Seeger’s involvement as a member of the Board of Directors for Esquire Bank through most of 2016, she upped the ante of accusations against Locks from “acknowledged and signed off” to “facilitating.”
It is completely puzzling that Judge Brody has looked the other way as Seeger has gone so far as to solicit law firms to encourage their player clients to assign their claims to Esquire Bank, while vastly exaggerating Locks’ role in carrying out his clients wishes. An exposé on Seeger’s role with and solicitation on behalf of Esquire Bank is detailed in a must-read ESPN feature by Peter Keating.
Conclusion
As one prominent lawyer said to me during the Settlement registration period as attorneys and lenders jockeyed for clients, “Class Actions tend to bring out the worst in the legal profession.” That has been especially true in the Concussion Settlement; conversely as more and more attorneys fight for the rights of their player-clients, I’ve also observed it bringing out much of what is good. When I first began following and writing about this story, I never imagined that in advocating for the player-plaintiffs, I’d also find myself in the position of having to advocate for their attorneys as well, but here we are.
Part 3, and the final part of this series will delve into the strange politics of multi-district litigation and how the situations here have been forged. In doing so, I will demonstrate why the Settlement itself seems to be of more importance to the Court and Mr. Seeger than the impaired players it was designed to compensate.
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.
