January 13, 2019
To make sense of the latest developments in the strange world of the NFL Concussion Settlement, four events require closer examination. The NFL’s unexpected withdrawal of a bombshell appeal; the subsequent cancellation of the hearing on that appeal, Co-Lead Class Counsel Chris Seeger’s victorious PR campaign, and Her Honor, Judge Anita B. Brody’s substantive ruling on a mooted appeal.
As I’ve written for nearly two years, the NFL has waged an all-out war on the “generally consistent” standard of diagnosis for pre-effective date and MAF settlement claims for dementia. The escalating tensions on the bargained for standard climaxed when the NFL appealed the settlement special masters’ interpretation of “generally consistent” off the public docket and out of sight for most observers.
Under settlement terms, retired players are given two post-settlement effective date paths for receiving a qualifying diagnosis for compensation of their football related brain injuries.
Ryan Boysen of Law360 did a thorough analysis of the appeal in the days leading up to the scheduled hearing, and provides an excellent explanation of the two paths.
In accordance with Special Master Wendell Pritchett’s ruling and the court-adopted settlement FAQs, generally consistent is understood to mean having more factors in common with BAP criteria than differences.
Per Law360, attorney Timothy O’Brien, who is not involved with the settlement found the NFL’s argument “disingenuous” and “sophomoric,” stating that any trial lawyer knows that “generally consistent is a very broad term.”
Mr. O’Brien is correct and considering this, the developments of the past week seem a bit nonsensical.
Out of Order
It would make no sense for an appellant to withdraw an appeal unless there was something to be gained from doing so. In this case, Judge Brody has granted great deference to the NFL because of the uncapped nature of the settlement. The Paul Weiss attorneys representing the NFL are highly skilled. The appeal would not have been withdrawn because they felt they were unable to argue the case they’ve been building and leading up to for nearly two years.
The only feasible reason that the NFL would agree to withdraw their appeal would be if a negotiated result had been obtained. There are no public records of this, of course, but since all related activity outside Judge Brody’s order granting a stay of claims cited in the NFL appeal, her order scheduling the hearing, and her order cancelling the hearing because of the NFL’s withdrawal and concurrent ruling on their appeal, nothing has appeared on the public docket.
It’s highly unusual for a judge to make a substantive ruling on a withdrawn motion or appeal. Once an appeal is withdrawn it becomes moot, or nonexistent. Judge Brody cancelled the hearing as moot because there was no longer an appeal to be heard. A typical order in this circumstance would merely grant the motion to withdraw. No further action would be necessary or expected. If the NFL had withdrawn its appeal for any reason aside from a negotiated result, then the status quo should have been maintained.
Co-Lead Counsel Chris Seeger is taking a victory lap and proclaiming success because of the NFL’s withdrawn appeal.
ICYMI: Read Christopher Seeger’s statement on the NFL’s withdrawal of its meritless appeal in the NFL concussion settlement pic.twitter.com/JSkS6d47Dv
— NFL Settlement Info (@NFL_Settlement) January 10, 2019
He says that Judge Brody’s “administrative clarification will streamline the approval and payment of claims.” This statement is dubious at best, since as I demonstrated in Part I, many doctors are already doing this and it hasn’t deterred appeals. Furthermore, mandating that doctors effectively become lawyers in order to justify their own competency and the diagnosis of their patient seems to at best add another layer of complexity to an already cumbersome process, and at worse, depending on the claims administrator’s revised definition of generally consistent, materially alters the settlement just as the NFL sought to do and Seeger, at least in his briefing opposed.
While Seeger may view the NFL’s appeal withdrawal and Judge Brody’s ruling as a gift, one is reminded of ancient mythology and the story of Greeks bearing gifts. The nation-states of Troy and Greece had been embroiled in a decade-long war when the Greek general Odysseus devised a brilliant strategy that deceived the Trojans into accepting a magnificent wooden horse offered by a supposed Greek deserter, bringing it inside their city. Unknown to the Trojans, a unit of elite Greek forces hid in the belly of the horse and emerged as the city slept. They opened the gates of the city allowing the Greek army to enter, thus decimating Troy and winning the war.
Ironically, since Judge Brody has blocked the attempts of attorneys who individually represent players, hearing only from NFL counsel, a Co-Lead Class attorney who represents few class members, and the settlement administration, she likely has little understanding of how her order can and most likely will become the equivalent of the horse that destroyed Troy.
So what happened? To make sense of the seemingly nonsensical situation an important question must be explored.
Let’s start with Mr. Goodell. His job as commissioner is to please 32 billionaire NFL franchise owners and further increase their wealth. Part of that task involves keeping controversy and bad PR to a minimum. He also needs to encourage confidence in youth football to ensure a fresh pipeline of talent for the NFL. Reminders of the game’s toll of brain injury are not conducive toward that objective. Furthermore, the post-season playoffs are underway. The last thing Goodell wants is for the Super Bowl, the biggest money-making event of the entire year to be tarnished by bringing attention to demented former players and the league’s reluctance to keep its promises to them.
We’ve observed from televised interviews such as this one on HBO Sports that when aspects of the settlement are criticized he assumes a very defensive posture. He maintains a PR focused Twitter account that has never offered meaningful information for navigating the settlement, but instead frequently touts the amount of claims paid and BAP appointments attended. Prior to last Friday that was all he’s ever posted on that account, however he broke with tradition to congratulate himself and announce his “victory” over the NFL. He probably feels he needs to maintain a certain image and guard his reputation as someone who can close a deal because that’s attractive to the judges who make appointments to the highly lucrative lead counsel position in mass tort litigation. Indications of problems within his negotiated settlements could possibly be seen as detrimental to future appointments, and for the cartel-like structure of the top-tier of plaintiffs lawyers, this seems to be priority number one. Perhaps, not coincidentally, immediately following his victory proclamation, he petitioned the court for additional compensation from the common benefit fund.
Judge Brody has been a part of the federal judiciary for a long time—she was appointed by President George H.W. Bush in 1992—and as such she is probably deeply conditioned to a system that evaluates judges much differently than an average person would. Consider these excerpts from University of Connecticut law professor Alexandra Lahav’s book, “In Praise of Litigation.”
By statute, every six months the Administrative Office of the Courts publishes a list of judges who have motions pending more than six months or cases pending more than three years. The message of this method of measuring judicial productivity is that the judge is to resolve cases in the fastest way possible. (pp. 97-98)
[T]oday … administrators of the court system are primarily concerned with how many cases a judge has closed (or, as judges revealingly call it, how many cases they have “disposed”). A judge is not measured, as she should be, by how carefully she listened to litigants, how many hearings she held, how many self-represented litigants she treated with respect, or how many trials she adjudicated. (p. 146)
It seems judges are conditioned and motivated to keep things moving quickly and without distraction.
Judge Brody probably sees the concussion settlement as the crown jewel of her career. At age 83, it’s likely to be her last mega-case and the one that defines her legacy. Following the Locks motion that claimed the settlement “was in danger of failing its execution” in March 2017, and the negative press that followed, she ordered all discussion of settlement implementation issues to be handled outside the public docket. She recently rebuked attorney Wendy Fleishman for daring to publicly file an appeal of the sudden and unexplained denial of a thrice approved and appealed client.
Oddly, while a nightmarish battle for many players is waged out of sight on the shadow docket, the NFL has been permitted to raise allegations of fraud on the public docket, and after initially pausing a decision on their request for a special investigator, she granted the NFL’s motion after an unexplained reversal by special masters.
A Perfect Storm
I’m certain that Judge Brody, Seeger, and his counterparts with the NFL were aware that a great deal of attention would be focused on the hearing scheduled for January 10 and this was not the dynamic they wanted. As such, it spawned the perfect storm that yields a reasonable explanation for the irregular actions of each party.
Though I’ve been reporting developments leading up to the hearing for months, I’m merely an obscure blogger, so it’s doubtful there was much cause for concern until Law360 picked up the story in the week leading up to the hearing and included the settlement among “Sports Cases to Watch in 2019,” causing them to realize someone with a broad reach was paying attention.
Three law firms filed motions requesting to be heard at the hearing, but no attorneys representing individual players have been permitted to address the court since the settlement became final. Numerous attorneys made plans to fly in from across the country for the hearing. I’ve been told that some had considered bringing their clients who were affected by the NFL’s appeal. Perhaps they hoped Judge Brody could be made aware of the human cost of the NFL’s actions.
I believe the common thread for the NFL, Chris Seeger, and Judge Brody is that they wanted to get ahead of the story and stop the press. I doubt they wanted a bunch of reporters in the courtroom talking to plaintiffs’ lawyers and suffering players, once again placing the settlement that has been praised as an historic accomplishment and the largest of its kind in history, under public scrutiny.
In view of this, it’s not unreasonable to suggest that negotiations quickly fell into place. Sometimes arguments are heard privately in chambers. Perhaps Judge Brody issued an informal invitation for Seeger and NFL counsel to address the matter privately. It’s also possible the judge wasn’t involved, and Seeger and the NFL’s attorneys acted of their own accord, reached an agreement, and informed Judge Brody of their wishes. It’s not totally out of the question to wonder if this was the NFL’s strategic plan from the start. While we are unlikely to ever know exactly what took place, any of these scenarios would explain the quickly withdrawn appeal and the sua sponte order with potential to dramatically alter the settlement.
The operative portion of her order is shown above. A casual reading might not set off any alarms, but there is a lot to unpack if you look closely.
As I carefully detailed in Part 1, the judge has asked the claims administrator to make a medical determination. Instead of affirming the Special Masters’ broad, but legally sound definition of “having more characteristics in common than differences” it seems that Judge Brody is asking the claims administrator to draw a line in the sand that is likely to lead to one of two results.
The claims administrator discusses his assignment with Seeger and NFL counsel and develops some type of hybrid definition to meet them in the middle. While the claims administrator is portrayed as a neutral party, he is, in fact, a repeat player in mass tort litigation. As such, appointments to administrate settlements depend on the recommendations and good will of both high-level plaintiffs’ counsel and counsel representing defendants. In the BP oil spill case, In re: Deepwater Horizon, Orran Brown made a judgment call that was advantageous to the farmers whose land was damaged in the oil spill, but he faced criticism, for his decision and was ultimately reversed by the court. He has likely taken some lessons from that experience.
It seems safe to assume that Brown will seek to construct a definition pleasing and acceptable to the attorneys who can impact his future employment. When a definition is adopted instructions will be issued to doctors, who must at that point start thinking like lawyers to make their case for a generally consistent diagnosis. If their explanations meet with the claims administrator’s approval and the NFL chooses to challenge, this helps to frame the appeal as involving a technical medical issue that is likely to invoke Appeals Advisory Panel (AAP) consultation on the part of the Special Master. Indirectly this result, resolves the NFL’s other appeal in a favorable manner to the league regardless of how Judge Brody rules.
The claims administrator will consider Judge Brody’s assignment as a matter involving technical medical issues and consult the AAP for guidance in defining generally consistent. Should this occur, as I described in great detail in Part I, the definition will likely be constructed in a way that makes it identical with the BAP. Attorney Tim O’Brien, in comments to Law360 was the first to raise the Trojan horse analogy regarding the settlement, and he, for good reason viewed the AAP as a gift with potential for destruction.
The NFL has stated when filing the appeal seeking to mandate AAP consultation for claims turning on “technical medical issues,” that while MAF doctors have been approved by the NFL they haven’t been vetted and trained by them.
While the NFL has no business training doctors, it seems they’ve done due diligence with the AAP, who have denied most dementia claims that they’ve examined.
A loss is a win, but a win is a loss. This paradox is at the same time brilliant and diabolical. Had the NFL’s appeal been argued in open court resulting in a formal opinion, it would have been appealable to the Third Circuit. Had she ruled to eliminate the generally consistent standard, the settlement agreement would have been materially altered in a way detrimental to the class without the benefit of notice. The same result would have emerged if she had ruled for the generally consistent standard to remain in place but altered or struck the language specifying that it need not be identical to the BAP. Depending on how the claims administrator modifies the definition, the same impact could occur, but a legal technicality shields it from the same scrutiny that a formal opinion would have invoked.
Since Judge Brody’s decision is not a formal opinion granted in favor of one of the parties, but rather a sua sponte order, the path of appeal is for all practical purposes blocked.
Per Article XXVII of the Settlement Agreement, the agreement is to be interpreted and enforced in accordance with the laws of the State of New York. Established New York law, based on CPLR § 5701(a)(2) mandates no right to appeal a sua sponte order. This is not to say that it’s impossible, but it does mean that there’s no automatic right and an attempted appeal could be subject to substantial roadblocks on the part of the originating court.
Through withdrawing the appeal and allowing Chris Seeger to claim a win, the NFL received what it asked for and more. While the seven players whose claims were stayed will finally be paid, the way this was done almost resembles the release of hostages in exchange for demands.
When the settlement received final approval, players were told if they had a dementia diagnosis that it was a compensable condition. At no time did any party stipulate to the retired players that the generally consistent provision of the settlement that their lawyers depended on when encouraging them to remain in the settlement class could be twisted to define only certain aspects of dementia.
That was then.
This is now.
Global settlements have the potential to accomplish a great deal of good. Injured plaintiffs have the collective strength to forge a bargain. The wrongdoing of corporate defendants can be exposed forcing a change of behavior, and even the defendant benefits in that he is able to obtain global peace for moving forward.
That is when settlements work as intended. Sometimes plaintiffs are stuck with “a pig in a poke.” They are encouraged to buy in only to find the product is not as advertised with a no-refund policy in effect. When this happens, the potential good is lost and the defendant is rewarded for bad conduct. This is in danger of taking place now.
The Concussion Settlement has morphed into the proverbial Wild West. The question that remains: “Is there a sheriff out there somewhere who’s capable of riding in on a white horse and restoring order?”