By Perry Cooper
The National Football League concussion litigation wasn’t a prime candidate for class action treatment: Many players alleged current or future injuries, the class members could self-identify as players, and many were represented by their own counsel.
But the class device proved useful for resolving much of the litigation through a settlement for many reasons, attorneys involved with the case said.
The NFL has a certain level of finality by precluding many later suits; players who haven’t yet shown signs of brain injury will be protected by a long-term insurance policy; and the judge overseeing the litigation will have continuing jurisdiction over the case.
Class actions have been disfavored in personal injury suits for decades, but this case shows how they might be used going forward, prominent plaintiffs’ attorney Elizabeth Cabraser said. She represented individual players in the NFL litigation and is a partner at Lieff Cabraser Heimann & Bernstein LLP in San Francisco.
The settlement might even serve as a model for the court overseeing similar concussion claims against the National Hockey League. Judge Susan Richard Nelson of the District Court of Minnesota will consider class certification in that case at a March 16 hearing.
The agreement here, estimated to cost the NFL $1 billion over its lifetime, settles players’ claims that the league was negligent for failing to inform them of the link between repeated traumatic head impacts and long-term brain injuries.
The settlement creates a compensation plan for more than 20,000 former players already diagnosed with chronic traumatic encephalopathy or other concussion-related brain diseases, worth up to $4 million per player.
The litigation began as hundreds of suits filed all over the country that were eventually consolidated in the Eastern District of Pennsylvania under Judge Anita B. Brody. Class treatment was imposed later as a way to resolve all the suits.
Class members here weren’t unknown or unaware of their claims, as they are in many class actions. “If I played football in the NFL, I know it,” attorney for the players Samuel Issacharoff said.
Over 5,000 people were independently represented, Issacharoff, who is also a professor of civil procedure at New York University Law School, said. Three-quarters of the class was already engaged—"they didn’t need us to represent them.”
But there were still several reasons for treating the litigation as a class action.
In cases involving diseases that require a long-term claims program, it’s most important that the court have ongoing involvement in enforcement, Cabraser said.
“One preexiting template we have for that is Rule 23,” she said, referring to the Federal Rule of Civil Procedure that governs class actions.
“Rule 23 was the best template for this case in terms of transparency and enforcement,” she said. “I’m sure it was painful for those involved, but the settlement was evolving in real time in plain sight.”
The court will have continuing jurisdiction over the claims, and the attorneys will continue to be involved.
“Because it has such a long life, we’re all buddies for 65 years on every case-by-case dispute,” Issacharoff said.
“If this were an aggregate settlement, you would create a nontransparent body to deal with this” and you wouldn’t have the same level of long-term judicial oversight, he said.
Issacharoff also said nothing about the litigation’s class treatment means that the players who later develop injuries will get any less vigorous representation than they would otherwise. “We will be adversarial in each of these cases.”
Another benefit of class treatment and settlement for the NFL is a greater level of preclusion of future claims.
“From a practical perspective, I don’t think this case would have been settle-able for the NFL if we weren’t able to reach close to global peace,” NFL counsel Brad S. Karp, chairman of Paul, Weiss, Rifkind, Wharton & Garrison LLP in New York, said. “The NFL needed a complete solution.”
Co-lead class counsel Christopher A. Seeger acknowledged that the settlement wasn’t perfect, particularly as perceived by those players who wouldn’t get any money right away.
But seeking a perfect deal for all the players would likely have blown up the agreement and meant the NFL wouldn’t have settled the cases in the aggregate, Seeger, partner at Seeger Weiss LLP in New York, said.
Consolidating the suits into an MDL might have worked at some levels. The ALI Principles of Aggregate Litigation would have given guidance to assure fairness, and the players who already show signs of injury would have gotten the same benefits, Judge Lee H. Rosenthal of the U.S. District Court for the Southern District of Texas said.
But the class action structure allowed the parties to provide relief to the players in a programmatic way not possible in the mass tort arena, Cabraser said.
She pointed to the deal’s insurance clause, which provides that players who aren’t yet injured will be entitled to diagnostic exams for the life of the agreement.
That clause is “a natural under Rule 23,” Cabraser said. “That’s worth more than money to class members.”
Alan Morrison said he objected to the settlement because those players who don’t yet show evidence of brain injury won’t receive an immediate payout. “It looked to me that class counsel was ‘playing god’ to decide who was and wasn’t getting money,” he said.
He wanted more subclasses to represent players who haven’t shown symptoms of brain trauma yet. But even he admitted that the cases should have settled, and the class mechanism was the best option for transparency.
Cabraser predicted more mass tort personal injury cases will go “back to the future” to use Rule 23. She referred to a time two decades ago before Supreme Court cases that made it harder to certify personal injury claims because each class member’s injury is different.
“I think we’ll see more of this simply because we have to get past the labels and look at function, efficiency, fairness,” she said. “It has proven itself as a viable mechanism for the settlement itself and it has served to legitimize a renewed look at the class action for other major resolutions of mass cases.”
The attorneys spoke March 2 at a class action conference at Columbia University Law School in New York.
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