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Media Alerts - In Re: National Football League Players Concussion Injury Litigation - Third Circuit
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April 19, 2016
  In Re: National Football League Players Concussion Injury Litigation - Third Circuit
Headline: Third Circuit Affirms Class Certification for Massive NFL Concussion Settlement

Area of Law: Class Action, Entertainment

Issues Presented: Are retired NFL players a valid group for class certification if they file alleging damages related to head injuries?

Brief Summary: A number of suits from retired NFL players were aggregated into a class action against the organization for medical issues related to head injuries suffered during play. The class and defendant chose to settle at the District Court level, but certain members of the class objected to the validity of the settlement. The Third Circuit affirmed the District Court's class certification, and to the fairness of the proposed settlement, which resulted in over $1 billion being allocated to retired and deceased NFL players with certain Qualifying Diagnoses.

Extended Summary: In July 2011, former players in the National Football League sued in California Superior Court, alleging that the NFL failed to take reasonable action in protecting them from chronic risks of head injuries. The complaint claimed that the conduct inherent in a football game puts players at risk of repeated head trauma that can lead to severe mental disorders and brain injury. Additionally, the complaint alleged not only that the NFL was aware of the risk at which it was putting its players, but that it spread deliberate disinformation to keep them unaware of the true dangers of head injuries. The players also brought suit against Riddell for defective helmet design. This case concerned only the NFL.

The defense removed to federal court on the grounds that federal labor law preempted the claims, and moved to consolidate other such claims. In January 2012 the case was heard in the Eastern District of Pennsylvania as multidistrict litigation. Specifically, the NFL moved to dismiss claiming Collective Bargaining Agreements were the proper method of resolution, as per Int'l Bhd. of Elec. Workers v. Hechler 481 U.S. 851, 852 - 53 (1987). The players argued their negligence and fraud claims would not require federal interpretation of collective bargaining agreements.

In the midst of these arguments the parties agreed to a settlement of $765 million to compensate players and pay for medical exams. In January 2014 cases counsel filed a class action complaint and sought approval for class certification. After minor motions between the parties, they moved forward with a proposed settlement on April 22, 2015. It would uncap the compensation award, provide compensation for affected players, and provide funding for players about injury prevention. The awards to individual players would be modified depending on when the player retired, how long they played, and whether they suffered injuries unrelated to their NFL career.

The proposed class was all players who retired before July 7, 2014, creating subclasses of those who were or were not diagnosed with certain specific diseases identified as being connected to head trauma.

Certain members of the class objected to the proposed settlement, challenging its validity and the certification of the class.

Analyzing the factors for class certification, the court found that the retired player base was sufficiently numerous, as required by 23(a)(1). Their claims contained common critical factual questions, also satisfying commonality. While the defense argued there were differences in the way and periods of time over which the players were injured, the court dismissed this argument because the NFL displayed a consistent course of conduct for the entirety of the players. The objectives of the class were similarly typical, satisfying 23(a)(3).

As to adequacy of representation, the court disagreed that not appointing outside counsel removed adequacy, as such a measure was not required. They further disagreed that there was potential for conflict of interest, as the appointed counsel disclosed his status to all of the players involved in the action, and to the District Court. The incentives of the class members themselves, including both subclasses, were aligned such that there could be no fundamental conflict of interest.

The court further found that questions of fact predominated over the claims of the class, validating their certification under 23(b)(3). The conduct of the NFL and scientific questions regarding the class members' injuries were identical among the plaintiffs. The court especially distinguished Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997), which denied class certification in a nationwide asbestos suit but did leave room for mass tort actions to clear the hurdle of predominance.

Reviewing the settlement itself, the court applied an initial presumption of fairness, following its precedent to allow for such in cases of procedural equality. It also found that the District Court adequately applied precedent in examining whether the settlement was fair, specifically, the factors spelled out in In Re Prudential Insurance Company, 148 F.3d at 323. Going through these factors itself, the Court agreed with the District Court that the settlement was procedurally fair and would adequately represent the interests of the class.

Certain objectors argued that the settlement was unfair in that it excluded CTE as one of the qualifying diagnoses for players, thus making the settlement unfair. The court relied on earlier evidence showing that CTE was not well understood, the vast majority of players diagnosed with it would be compensated under another diagnosis, and the existing scientific knowledge does not justify compensation based on possible though unknown future effects. There were some post-litigation events that took place which the court felt did not affect the science or substance of the case at hand.

Objectors also argued the District Court erred in approving the procedure for attorney's fees, but the court believed they had adequate notice and objections were not raised in the adequate time.

To read the full opinion, please visit

Panel (if known): Ambro, Hardiman, Nygaard

Argument Date: November 19, 2015

Date of Issued Opinion: April 18, 2016

Docket Number: 15-2206, 15-2217, 15-2230, 15-2234, 15-2272, 15-2273 15-2290, 15-2291, 15-2292, 15-2294, 15-2304 & 15-2305

Decided: Affirmed

Case Alert Author: John Farrell

Counsel: TerriAnne Benedetto Esq., David R. Buchanan Esq., Diogenes P. Kekatos Esq., Christopher A. Seeger Esq., Samuel Issacharoff Esq. [Argued], Gene Locks Esq., David D. Langfitt Esq., Dianne M. Nast Esq., Stephen F. Rosenthal Esq., Steven C. Marks, Arnold Levin Esq., Frederick S. Longer Esq., Brad S. Karp Esq., Theodore V. Wells Jr. Esq., Lynn B. Bayard Esq., Bruce A. Birenboim Esq., Walter R. Reiman Esq., Beth A. Wilkinson Esq., Paul D. Clement Esq., Andrew Ferguson Esq., David Zachary Hudson Esq., Robert M. Bernstein Esq., Robert C. Heim Esq., Sol H. Weiss Esq., Counsel for Appellees
Alan B. Morrison Esq., Scott L. Nelson Esq., Counsel for Amicus Appellant Public Citizen Inc.

Shana De Caro Esq., Michael V. Kaplen Esq., Counsel for Amicus Curiae Brain Injury Association of America

Christopher A. Bandas Esq., Howard J. Bashman Esq., [Argued] Gary P. Lightman Esq., Glenn A. Manochi Esq., Counsel for Appellants Craig and Dawn Heimburger

Edward W. Cochran Esq., John J. Pentz Esq., Counsel for Appellants Cleo Miller Judson Flint; Elmer Underwood; Vincent Clark, Sr.; Ken Jones; Fred Smerlas; Jim Rourke; Lou Piccone; James David Wilkins II

George W. Cochran Esq., Counsel for Appellant Curtis L. Anderson

Joseph Darrell Palmer Esq., Jan L. Westfall, Counsel for Appellant Darren R. Carrington

Richard L. Coffman Esq., Deepak Gupta Esq., [Argued] Matthew W.H. Wessler Esq., Jonathan E. Taylor, Esq. Mitchell A. Toups, Esq. Jason C. Webster, Esquire, Counsel for Appellants
Raymond Armstrong; Nathaniel Newton, Jr.; Larry Brown; Kenneth Davis; Michael McGruder; Clifton L. Odom; George Teague; Drew Coleman; Dennis DeVaughn; Alvin Harper; Ernest Jones; Michael Kiselak; Jeremy Loyd; Gary Wayne Lewis; Lorenzo Lynch; Hurles Scales, Jr.; Gregory Evans; David Mims; Evan Ogelsby; Phillip E. Epps; Charles L. Haley, Sr.; Kevin Rey Smith; Darryl Gerard Lewis; Curtis Bernard Wilson; Kelvin Mack Edwards, Sr.; Dwayne Levels; Solomon Page; Tim McKyer; Larry Barnes; James Garth Jax; William B. Duff; Mary
Hughes; Barbara Scheer; Willie T. Taylor

Lance H. Lubel, Esq., Adam Q. Voyles, Esq. Mickey L. Washington, Esq., Charles L. Becker, Esquire [Argued]; Counsel for Appellants Liyongo Patrise Alexander; Charlie Anderson; Charles
E. Arbuckle; Cassandra Bailey, as Representative of the Estate of Johnny Bailey; Ben Bronson; Curtis Ceaser, Jr.; Larry Centers; Darrell Colbert; Harry Colon; Christopher Crooms; Jerry W. Davis; Tim Denton; Michael Dumas; Corris Ervin; Doak Field; Baldwin Malcolm Frank; Derrick Frazier; Murray E. Garrett; Clyde P. Glosson; Roderick W. Harris; Wilmer K. Hicks, Jr.; Patrick Jackson; Gary Jones; Ryan McCoy; Jerry James Moses, Jr.; Anthony E. Newsom; Rance Olison; John Owens; Robert Pollard; Derrick Pope; Glenell Sanders: Thomas Sanders; Dwight A. Scales; Todd Scott; Frankie Smith; Jermaine Smith; Tyrone Smith; James A. Young, Sr.

Jared H. Beck, Esq., Elizabeth Lee Beck, Esq. Antonino G. Hernandez, Esq., Cullin A. O'Brien Esq. [Argued], Jeffrey J. Cairlanto, Esq. Counsel for Appellant Scott Gilchrist, individually and on behalf of the Estate of Carlton Chester "Cookie" Gilchrist

Dwight P. Bostwick, Esq., Cyril V. Smith, Esq., Ramya Kasturi, Esq., Counsel for Appellants
Jimmie H. Jones; Ricky Ray; Jesse Solomon

Stuart D. Lurie, Esq., Michael H. Rosenthal, Esq., Counsel for Appellant Andrew Stewart

Steven F. Molo, Esq. [Argued], Thomas J. Wiegand, Esq., Kaitlin R. O'Donnell, Esq., Eric R. Nitz, Esq. Rayiner I. Hashem, Esq., Jeffrey M. Klein, Esq., William T. Hangley, Esq., Michele
D. Hangley, Esq. Linda S. Mullenix, Esq., Counsel for Appellants Alan Faneca; Roderick "Rock" Cartwright; Jeff Rohrer; Sean Considine

David S. Coale, Esq., Edward J. Dennis, Esq., Kent D. Krabill, Esq., Counsel for Appellant James Mayberry

Author of Opinion: Judge Ambro

Circuit: Third Circuit

Case Alert Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 04/19/2016 09:41 AM     3rd Circuit  

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