August 19, 2019
Imagine you’re watching an old spaghetti western set in a town run by an aging saloon girl. A gang of gunslinging robbers has taken up residence but the saloon girl enjoys their flattery and tells the sheriff to “let them be,” and aside from an occasional flash of bravado he mostly does as he’s asked. There a subplot running in which a greedy banker is foreclosing on most of the widows in town and those whose husbands have been shot down by the band of outlaws and lay incapacitated. Meanwhile, the settlers who try to hold the marauding outlaws accountable find their homes burning to the ground. The movie’s been running for two hours now and you’re wondering when the cowboy in a white hat is going to ride in and restore order. Or will he?
(Note: MDLs have often been referred to as the “Wild West” of legal proceedings and along that line of thinking, read on for the spaghetti western screenplay complete with lots of Photoshops—or if you’re in a hurry, click here to jump straight to new developments in the funder saga that could impact the settlement in an unlikely way.)
Cast of Characters
The aging saloon owner who runs the town is representative of Judge Anita B. Brody, who presides over the NFL settlement. She appears to enjoy the excitement of running a high-profile case to finish out her career much in the same manner as an overlord commanding a town.
Brody is confident that she owns the town, so to speak in that MDL judges are endowed with an extreme amount of power. Her initial powerplay came shortly after the concussion litigation was consolidated to her district and assigned to her. She hand-picked an attorney with a reputation as a “closer” to head the plaintiffs’ litigation, though he represented few players in the case. Brody then struck preemption fear into the hearts of nearly every plaintiffs’ lawyer present, pressuring a settlement. She quickly got the settlement she sought without having to bother with such messy things as discovery, and once it was final, she ceased her charade as the benevolent judge and has blatantly advanced the position of the NFL, conducted as much business as possible in private and issued cryptic orders leaving players and attorneys alike, wondering what’s going on.
The “settlers” or “townspeople” represent the class of retired NFL players and their families, who were enticed to settle the “town” based on big promises that have largely devolved into a nightmare for the settlers who were seeking relief.
The settlement has benefited some of the players with indisputable neuromuscular disease and a few others, albeit not smoothly, but the bulk of the claimants suffer from dementia and they, along with their families have been derailed at nearly every turn with salt rubbed into each fresh new wound as the NFL runs amok with the blessing of “Boss Anita.”
The NFL and the settlement’s claims administrator, Orran Brown are the outlaws in this drama. The “town” came to be settled when thousands of the NFL’s former employees began to realize the neurocognitive deficits they were experiencing were the result of brain trauma the league had subjected them to while in their employment while at the same time, concealing the long-term dangers.
The NFL agreed to compensate those who’d been harmed so they flocked to the Eastern District of Pennsylvania eager to stake their claims, but when the settlers were once again within their clutches, the NFL began looking for ways to renege on their promises.
True to form the league of outlaws, once again showed little concern for the devastation they’d bought upon these men and their families, and sought only to mitigate their losses, begrudgingly compensating those with indisputable neuromuscular disease while seeking to paint the majority of the “townsfolk” as criminals unworthy of sympathy before the judge.
They found a willing ally in Orran Brown, the claims administrator, who seems to delight in developing new ammunition to aid them in shooting down claims as he handsomely enriches his own coffers for his efforts. Together they’ve formed an efficient tag-team appealing to Brody’s ego in order to persuade her to let them have their way with the “settlers.”
As Lead Counsel, Chris Seeger takes on the role of the sheriff, but to the dismay of many, he has often seemed less concerned with the plight of the “settlers” than in remaining in the good graces of the judge, who rewarded him richly for populating the “settlement.”
Meanwhile, the settlers wonder why the sheriff who led them to a promised eutopia hasn’t been more aggressive in protecting them from the outlaws who continue to pillage their ranks, and worry that his apparent coziness with the “saloon girl” has left them defenseless.
The “sheriff’s” law enforcement record has been inconsistent. He successfully won the battle against the “outlaws” for crediting active seasons if a player was on a team’s 53-man roster though not included in the 45-man gameday active list. He also filed briefs supporting players opposing the NFL’s AAP and generally consistent objections, but when Brody granted concessions to the NFL through carefully crafted sua sponte orders, he didn’t aggressively oppose her. When she adopted new rules crafted by Orran Brown governing MAF physicians, other class counsel sprang to action vigorously opposing them as harmful to the class, while Seeger’s less than forceful opposition was limited to one narrow issue.
Recently he appears to have upped his vigilance as the result of yet another NFL objection that seeks to permanently eject players from the settlement and pursue criminal charges against them should they, in the NFL’s view, “misrepresent” an aspect of their claim or condition. Seeger filed a powerful brief opposing this NFL incursion and sent letters to the Class with an alert that serves as a warning to steer clear of the NFL’s entrapment scheme.
Since Brody hasn’t issued a ruling it’s unclear if he will again back down to appease the judge, or change course and aggressively oppose her if she decides to accommodate the NFL by directly granting their requests or forging another deadly “compromise”.
The Resistance Riders
As the players wait and hope that a hero will ride in on a white stallion to right the wrongs, it remains to be seen who will succeed, as many have tried, only to find themselves wounded in the fight.
Numerous attorneys who individually represent players have mounted their steeds and initiated remarkable campaigns to persuade Brody to pressure the NFL to keep its promises, but sadly all have met with fierce opposition. If you’re thinking the Photoshop looks like a Bonanza spoof, you’d have guessed correctly. I thought the beloved “good guys” from the classic western were a fitting depiction.
Attorney Patrick Tighe rides in as “Little Joe,” the youngest Cartwright, in that he’s a solo practitioner who filed the first motion to try to correct the course. He was rewarded for his efforts by accusations of trying to game the system.
“Hoss” is portrayed by attorney Lance Lubel, whose clearheaded objections have largely left him viewed by both Brody and the sheriff as an outsider looking to cause trouble.
Patriarch Ben Cartwright and his eldest son Adam are played by former Class Counsel Gene Locks and David Langfitt previously with the Locks Law Firm and now working independently. Locks and Langfitt have rallied to halt the NFL’s aggression on several occasions, and as Class Counsel appeared to be in the best position to do so. Unfortunately, they often found themselves fighting not only the NFL and Brody but also “Sheriff” Seeger. After passionately arguing on behalf of the players in court three months ago, they were unceremoniously fired by Judge Brody robbing them of the positions which granted them authority to act as representatives of the “settlers.”
Perhaps it will take a woman to put Judge Brody in check. Enter attorney Wendy Fleishman a partner at the powerful plaintiffs’ firm Leiff Cabraser.
Fleishman has fiercely advocated on behalf of her player-clients, one of whom was wrongfully denied after having a Level 1.5 claim approved by the claims administrator, approved again upon review by the AAP, randomly audited, approved again, and then denied following an NFL appeal.
Fleishman sought to take the battle public but was chastised by Judge Brody for doing so, and after several rounds of public and non-public skirmishes, capped by Brody’s rule changes purposed to defeat her, Fleishman, like those before her found herself outgunned. Undeterred, she has taken the fight to the Third Circuit Court of Appeals, seeking reinforcements to roll back Brody’s abuses. Unfortunately, because of the vast authority of MDL judges, the Third Circuit seems hesitant to intervene and has requested briefing as to why they should agree to hear the appeal. Fleishman’s brief will be submitted this week. Should she succeed in having her appeal heard, and especially if the Third Circuit should rule favorably, many see this as opening a door for others who’ve been harmed by the NFL, claims administrator, and the judge who seems to consistently favor them over the players the settlement was crafted to help.
Many “settlers”, in dire straits from their infirmities, took advances on their anticipated awards, from unregulated sub-prime lenders outside the safeguards of banking regulation.
The subprime lending market is a double-edged sword. Whether payday loans to low-income workers or advances to tort victims awaiting compensation, the high-interest loans these lenders provide are at the same time both a blessing and a curse. Often these loans are the only options available to those who are facing eviction or foreclosure or have pressing medical needs or merely need to keep their lights on. Finding their creditworthiness shot due to the circumstances that robbed them of their financial security, the loans can be a lifesaver, but at a steep price.
An Unexpected Sub-Plot
In December 2017, Judge Brody appeared benevolent when she voided contracts between players and the lenders who’d advanced funds using their future awards as collateral. In retrospect, her decision appears to be little more than another powerplay in which the players are once again caught up as mere pawns in a system that seems intent on denying them justice.
You can read more about the peculiarities that apparently drove her decision making here, but the bottom line is that she overstepped her authority in trying to interfere with the business activities of non-parties to the litigation.
The lenders appealed to the Third Circuit where a unanimous panel of judges found that she’d overstepped her boundaries, vacating all but one narrow circumstance in which they agreed her order would stand.
The Third Circuit ruled that Brody did have authority to void “true” claim assignments that would allow the lender to step into the shoes of a player and collect directly from the NFL via the claims administrator. Few if any of the loans acquired by class members meet this definition, however. Generally, the contracts obligate the players to repay the loan and interest through their attorney after the award has been issued to them. The Third Circuit clearly stated that Judge Brody has no authority over the funds after they’ve been disbursed, and specifically stated that the contracts between Thrivest, one of the lenders seeking to collect on their advances, clearly is outside of Brody’s jurisdiction. The Third Circuit entered a mandate requiring Judge Brody to comply with their ruling.
In a settlement largely bereft of justice, a predatory lender seems to be the last place you’d find relief, but in this strange drama, this villain may turn out to be the unwitting rider on the white horse.
While she’s made a few minor compromises, Brody seems intent on defying the Third Circuit. Following the issuance of the Third Circuit opinion, Thrivest filed a motion with the court asking Judge Brody to convene a hearing in order to make adjustments to comply with the mandate.
Claims Administrator Brown Greer responded in a defiant tone, claiming to be in compliance while citing rules that firmly adhere to Judge Brody’s vacated order.
This is the crux of Thrivest’s response to Judge Brody, again seeking a hearing.
In a perfect world, people would never have to seek the high-interest loans Thrivest offers, but it’s not Judge Brody’s place to regulate legal contracts between two private parties. The legislature should step up to protect the vulnerable and place limits on the rates and fees charged by these subprime lenders, but until they do, the transactions are mostly legal unless some are found to violate narrow exceptions in certain state laws.
In the time elapsed since Judge Brody attempted to void the contracts in 2017, interest has continued to accrue, often in the tens of thousands of dollars that the players who sought relief are now legally obligated to pay, short of a compromise through arbitration. The Thrivest letter gives examples of the confusion and reminds the court that it’s doing no one any favors through deceiving the players regarding their loan obligations.
Within hours Judge Brody responded with a denial of Thrivest’s request.
So—What Happens Next?
This the million-dollar question and there aren’t any definite answers but the two probable outcomes are that the Third Circuit will determine that Judge Brody is abusing her power and hopefully take serious concern regarding this and the issues that Wendy Fleishman has tried to bring to their attention, as well as some of the abuses of discretion pointed out by numerous attorneys in their fee allocation appeals which are concurrently being argued at the Third Circuit. Defiance of an appellate mandate should lend credibility to the argument that a district judge has gone rogue. If this occurs it would offer a potential silver lining to the litigation funding cloud.
The other potential outcome is that the Third Circuit fails to see past the smokescreens and declines further intervention.
During Deflategate, when Judge Berman was overturned by the Second Circuit Court of Appeals and seemed to procrastinate on affirming the appeals court’s mandate, I inquired of some knowledgeable attorneys as to what would happen if Berman refused. I was told that this just isn’t done. District courts don’t defy appellate mandates. As I’ve followed the lending saga capped by Judge Brody’s order, I’d conclude that this unlikely scenario has now occurred.
As before, I sought the opinions of numerous attorneys as to their insights. All agreed that Thrivest will again go to the Third Circuit and I’ll expand on their projected remedies in a bit, but one attorney I spoke with, after reviewing the documents didn’t see an abuse of discretion and opined that Brody has in-fact complied with the mandate.
Worst Case Scenario
Her reasoning is as follows. The claims administrator has developed a process to evaluate true assignments from allowable loans.
Unfortunately, the definition of a prohibited assignment was left presumptively vague.
The attorney reviewing the documents proceeded under the logical assumption that the district court would apply the appellate mandate in its determinations, however the consistent references to the “type of transaction the [District] Court found invalid” is in sharp conflict with the narrow transaction the appellate court deemed invalid. Further, Judge Brody appears to be trying to circumvent the Third Circuit’s authority by capitalizing on one sentence in their precedential opinion.
Judge Brody’s strategy appears to be enforcing her order voiding all advances and trying to muscle the lenders into accepting rescission or face a long difficult road in trying to collect from the player. While it would be of great relief to players who’ve acquired loans (albeit this seems to be more of a powerplay than genuine relief effort) lenders have little if any reason to be strong-armed by an 84-year-old judge intent on making up her own rules.
Pay close attention to (c).
While Judge Brody is clearly outside the intent of the Third Circuit mandate, she appears to be coloring inside the lines by directing payments directly to class members (and bypassing their attorney) should her attempts to bully the lenders to comply with her wishes fail. While the red-tape that still wraps the process is outside what I’d consider a reasonable interpretation of the opinion and mandate, technically when the obstacle course reaches its end she is releasing the funds although probably not in the way the appeals court envisioned.
Typically when a settlement award is issued, if a player is represented by an attorney, it is sent directly to the attorney who places it in an escrow account for distribution to his client minus applicable attorney fees. Generally, lenders avoid doing business with unrepresented claimants in order to avoid the scenario Brody’s rules have created. In contracts such as those of Thrivest, the attorney stands as a third party in the loan process and is required to sign off on an agreement to disburse payment to the lender. Brody’s rules now leave both the attorney and the lender in danger of recovering the money owed to them.
The attorney I spoke with who didn’t see a problem with Brody’s handling of the lending issues stated that while courts typically disburse awards to the escrow accounts of attorneys, the awards belong to the claimants and as such she is permitted to disburse the funds directly.
Attorneys may have some recourse in that they can file a lien with the magistrate judge to collect their contingency fees, but if the court doesn’t recognize the loan, neither the lender nor the attorney will be able to recover these funds and the attorney will be unable to fulfill his obligation to the lender. Potentially lenders may sue both attorneys and plaintiffs in an attempt to collect while interest on the loans continues to compound at, by now, an astronomical rate.
Since the attorney who presented this perspective hadn’t closely followed the case and likely is unaware of Judge Brody’s loose handling of settlement terms favoring the NFL, she viewed Brody’s funding determinations as a positive measure implemented to protect the class. I considered backing up Brody’s rogue, as I see its departure from applying the mandate with other abuses of authority, but I decided not to, in that it’s entirely possible that the Third Circuit will take a similar view, and as such, this is a valuable insight into a feasible, albeit undesirable outcome and perhaps one that all parties should take note of and prepare for.
All attorneys I consulted agreed that Thrivest and possibly other lenders would return to the Third Circuit and ask the appeals court to force compliance, but the paths for doing this seem less clear in that this is a highly unusual situation.
One attorney suggested the lenders might seek a TRO, however, an appellate attorney said that he seldom sees TROs issued at the appellate level. I asked him if seeking a writ of mandamus would be appropriate, but he indicated that the mandate already issued is essentially the same thing and the writ would be redundant.
If the case were not an MDL he said the remedy would be to seek removal to a different court but due to the difficulty of removal of an already settled MDL, their best option would be to seek recusal and ask that a different judge be appointed to oversee the case. He qualified this by stating that removal of a judge for abuse of discretion is an extremely high bar to clear, but also noted that refusal to follow an appellate mandate would seem to hit that mark.
The question now becomes, “will the Third Circuit, if they should consider forcing Brody’s recusal, consider a narrow or broad scope?”
Theoretically, the Third Circuit could demand that another district court judge handle all matters regarding claim assignments and third-party advances while leaving her in charge of all other MDL matters.
A narrow ruling such as this, while not solving any of the abuses that have plagued the claims process would, at least, eliminate confusion regarding loan obligations, and ensure compliance with the Third Circuit’s intent. This should result in quicker handling of claims where advances are involved and somewhat lower interest due to earlier payment. It would likely also open the door for future claimants to receive advances while waiting for their claim determinations if circumstances dictate a need for immediate cash.
Best Case Scenario
The best-case scenario would be a broad ruling by the Third Circuit removing Judge Brody from authority over the NFL Concussion Settlement.
The possibility exists that the Third Circuit will be more inclined to view Fleishman’s appeal and that of the attorneys challenging Seeger’s fee petition and examine the rule changes that Brody has implemented as an “administrative” determinations through a more critical lens. Should they agree she has abused her discretion in this regard as well as failure to comply with the mandate, the odds would be a little higher of seeing her removed. Perhaps poetic justice would be served if she were fired by the Third Circuit just as she unceremoniously fired class counsel for trying to correct the abuses that ultimately led to her termination.
I should emphasize at this point that we’ve reached a juncture with no clear path or precedent, therefore the scenarios presented above are purely speculative, While any scene could play out as defined, the more likely result would be some hybrid of the hypotheticals I’ve presented.
The one issue that is not speculative, however, is that decisions made by the Third Circuit Court of Appeals in the not-too-distant future will have a great impact on the path of the NFL Concussion Settlement.
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