3rd Circuit Appeal - Plaintiffs Response

United States Court of Appeals for the

Third Circuit

No. 14-8103

IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS CONCUSSION INJURY LITIGATION

OBJECTING CLASS MEMBERS: SEAN MOREY; ALAN FANECA; BEN HAMILTON; ROBERT ROYAL; RODERICK CARTWRIGHT;

JEFF ROHRER; SEAN CONSIDINE,

Petitioners.

ON PETITION FOR LEAVE TO APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PLAINTIFFS-RESPONDENTS ANSWER TO FED. R. CIV. P. 23(f) PETITION FOR PERMISSION TO APPEAL PRELIMINARY

SETTLEMENT APPROVAL ORDER CONDITIONALLY CERTIFYING SETTLEMENT CLASS

CHRISTOPHER A. SEEGER DAVID R. BUCHANAN DIOGENES P. KEKATOS SEEGER WEISS LLP 77 Water Street New York, New York 10005 (212) 584-0700

SOL WEISSANAPOL SCHWARTZ 1710 Spruce Street Philadelphia, Pennsylvania 19103 (215) 735-1130

Co-Lead Class Counsel

SAMUEL ISSACHAROFF40 Washington Square South, 411J New York, New York 10012 (212) 998-6580 On the Brief

(Additional Counsel Listed on Inside of Cover)

Case: 14-8103 Document: 003111692887 Page: 1 Date Filed: 07/29/2014

STEVEN C. MARKS PODHURST ORSECK P.A. City National Bank Building 25 W. Flagler Street, Suite 800 Miami, Florida 33130 (305) 358-2800

GENE LOCKSLOCKS LAW FIRM The Curtis Center Suite 720 East 601 Walnut Street Philadelphia, Pennsylvania 19106 (866) 562-5752

Class Counsel

ARNOLD LEVIN LEVIN FISHBEIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, Pennsylvania 19106 (215) 592-1500 Counsel for Subclass 1

DIANNE M. NASTNAST LAW LLC 1101 Market Street, Suite 2801 Philadelphia, Pennsylvania 19107 (215) 923-9300 Counsel for Subclass 2


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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION ..................................................................................................... 1

QUESTION PRESENTED ........................................................................................ 4

STATEMENT OF FACTS ........................................................................................ 5

ARGUMENT ............................................................................................................ 6

PETITIONERS DEMONSTRATE NO BASIS FOR IMMEDIATE REVIEW OF A PRELIMINARY SETTLEMENT APPROVAL ORDER ...... 6

A. Rule 23(f) Does Not Permit This Form of Interlocutory Appeal ......... 6

B. Petitioners Attacks on the Preliminary Class Certification Order Are a Thinly-Disguised Attack on the Underlying Settlement ............. 9

C. Petitioners Attacks on the Settlement Are, at Any Rate, Meritless ... 13

D. Petitioners and the Amicus Procedural Attacks Are Specious ......... 17

CONCLUSION ........................................................................................................ 20


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TABLE OF AUTHORITIES

CASES PAGE(S) Better v. YRC Worldwide Inc., No. 11-2072-KHV, 2013 WL 6060952 (D. Kan. Nov. 18, 2013) ......................................................................................... 9

Chamberlan v. Ford Motor Co., 402 F.3d 952 (9th Cir. 2005) ............................... 13

Dugan v. Towers, Perrin, Forster & Crosby, Inc., No. 2:09-CV-5099, 2013 WL 5330116 (E.D. Pa. Sept. 24, 2013) ........................................................................ 9

Gates v. Rohm & Haas Co., 248 F.R.D. 434 (E.D. Pa. 2008) ................................... 8

Gelder v. Coxcom Inc., 696 F.3d 966 (10th Cir. 2012) ........................................... 13

Heights Community Congress v. Rosenblatt Realty, Inc., 73 F.R.D. 1 (N.D. Ohio 1975) ................................................................................................ 8 In re American Investors Life Insurance Co. Annuity Marketing & Sales Practices Litigation, 263 F.R.D. 226 (E.D. Pa. 2009) .......................................... 18

In re Community Bank of Northern Virginia, 418 F.3d 277 (3d Cir. 2005) ............. 9 In re Cordis Corp. Pacemaker Product Liability Litigation, No. MDL 850, 1992 WL 754061 (S.D. Ohio Dec. 23, 1992) ................................ 8

In re DC Water & Sewer Authority, 561 F.3d 494 (D.C. Cir. 2009) ....................... 13

In re Diet Drugs, 282 F.3d 220 (3d Cir. 2002) ........................................................ 19

In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litigation, 226 F.R.D. 498 (E.D. Pa. 2005) ............................ 18

In re Federal Skywalk Cases, 680 F.2d 1175 (8th Cir. 1980) .................................. 7

In re Pet Food Products Liability Litigation, 629 F.3d 333 (3d Cir. 2011) ................................................................................. 12

In re SFBC International Inc., 310 F. Appx 556 (3d Cir. 2009) ............................ 12


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Kershner v. Mazurkiewicz, 670 F.2d 440 (3d Cir. 1982) .......................................... 7

Lienhart v. Dryvit Systems, Inc., 255 F.3d 138 (4th Cir. 2001) ............................... 12

Liles v. Del Campo, 350 F.3d 742 (8th Cir. 2003) .................................................. 12

Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir. 2001) ....................................................................................................... 13

Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999) ..................................... 19

Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266 (11th Cir. 2000) .................. 13

Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir. 1977) .................................. 11

Richardson v. LOreal USA, Inc., 951 F. Supp. 2d 104 (D.D.C. 2013) .................... 9

Sullivan v. DB Investments, Inc., 667 F.3d 273 (3d Cir. 2011) ................................. 2

Waste Management Holdings, Inc. v. Mowbray, 208 F.3d 288 (1st Cir. 2000) ................................................................................ 13

STATUTES AND RULES

28 U.S.C. 1291 ...................................................................................................... 11

28 U.S.C. 1292(a)(1) ............................................................................................... 7

Fed. R. Civ. P. 23 ........................................................................................ 1, 7, 8, 20

Fed. R. Civ. P. 23, 2003 advisory committee note .................................................. 8

Fed. R. Civ. P. 23(a) ................................................................................................. 11

Fed. R. Civ. P. 23(b) .............................................................................................. 11

Fed. R. Civ. P. 23(e)(2) ......................................................................................... 3, 6


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Fed. R. Civ. P. 23(f) .................................................................................... 1, 4, 6, 13

OTHER AUTHORITIES

AMERICAN LAW INSTITUTE, Principles of the Law of Aggregate Litigation (2010) ............................................................................................................... 3, 19


PLAINTIFFS-RESPONDENTS ANSWER TO FED. R. CIV. P. 23(f) PETITION FOR PERMISSION TO APPEAL PRELIMINARY

SETTLEMENT APPROVAL ORDER CONDITIONALLY CERTIFYING SETTLEMENT CLASS

INTRODUCTION

Plain and simple, there is no jurisdictional basis for this interlocutory

Petition for leave to appeal. The predicate for relief under Rule 23(f) is an order

granting or denying class action certification. Fed. R. Civ. P. 23(f). There is no

such order below, only preliminary approval by a district court.

Petitioners sidestep this critical jurisdictional difference by positing that they

seek review of the district courts decision certifying a class in the course of

preliminarily approving a settlement. Petition (Pet.) at 1. Clever wording,

perhaps. But asserting it is so does not make it so. Tellingly, Petitioners cite not a

single case for the jurisdictionally-laden proposition that a preliminary approval

order certifies a class within the meaning of Rule 23(f). And for good reason.

Rule 23(f) was designed to cure a structural defect in class action cases that

prevented meaningful appellate review. The strategic realities of class litigation

meant that in many cases the decision to certify or not to certify was the dispositive

event in the case. A rule of appellate jurisdiction that required awaiting a final

judgment that would never arrive would be the legal equivalent of Waiting for

Godot. As Judge Scirica explained, the addition of subdivision (f) to Rule 23 was

designed to allow for appellate review of cases that effectively ended at the class


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certification decision either because the denial of certification may sound the

death knell of the action because the claims are too small to be prosecuted

individually, or because the grant of certification may create hydraulic pressure

to settle, even for claims defendants deem non-meritorious. Sullivan v. DB Invs.,

Inc., 667 F.3d 273, 335 n.4 (3d Cir. 2011) (en banc) (Scirica, J., concurring).

Preliminary approval of a settlement class does not raise any of the

effective termination concerns that prompted the rule change. Neither the NFL

Defendants nor the proposed settlement class have any incentive to stop at this

stage. The Defendants cannot realize global peace, id. at 310-11, until final

approval, and the class cannot obtain any relief until it is in fact certified and the

settlement approved. The purpose of preliminary approval is only to authorize

notice to the class (notice has, in fact, already been sent to the entire class) and to

set the date of the final fairness hearing (which, as set out in the notice to the

proposed class, will occur on November 19).1 Under the express terms of the

1 Petitioners supporting amicus curiae, Public Citizen, Inc., does not address the issue of appealability at all, instead relying on commentary from the American Law Institutes Principles of the Law of Aggregate Litigation for the proposition that prompt judicial review of the proposed class notice is desirable. Amicus Br. at 2. Apart from the fact that this discussion is directed at meaningful scrutiny by the district court, Amicus disregards the ALIs primary concern that preliminary review is not a merits determination and does not substitute for the actual substantive determination of the appropriateness of a class settlement: The preliminary review is not . . . a substitute for a thorough and careful review of the


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Federal Rules, no settlement-related action by the district court can have any

conclusive effect until the final fairness hearing: If the proposal would bind class

members, the court may approve it only after a hearing and on finding that it is

fair, reasonable, and adequate. Fed. R. Civ. P. 23(e)(2).

And if it were to grant the Petition, what record could this Court possibly

review? The Petition is replete with factual assertions, including the relation

between drug exposure and strokes, the relation between the broad diagnosis of

chronic traumatic encephalopathy (CTE) and the compensable realized

symptoms under the proposed settlement, the state of the scientific record on CTE,

the relation between the compensation for injuries sustained in the NFL in the U.S.

and those sustained in the European NFL under restrictive European tort laws, and

so forth. None of these factual issues has been addressed by the district court and

the Petition cites only documents that Petitioners presented to the district court.

Will this Court step into the shoes of a court of first instance to create and

settlement at the time of the actual fairness hearing. AM. LAW INST., Principles of the Law of Aggregate Litigation (Principles of Aggregate Litig.) 3.03(a) (2010); see also id. 3.03(b) (After notice and an opportunity for objections (and, when required, opt-outs), the court must conduct a full review of the settlement, including an in-court hearing, with an opportunity for the parties and objectors to offer evidence and present arguments. Whether the court approves or disapproves the settlement, it must make on-the-record findings and conclusions in support of its decision.).


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adjudicate a factual record? Will there be testimony? Will the parties be restricted

to documentary evidence?

Petitioners seek to disrupt an orderly process that will conclude in the space

of less than four months whereby the many thousands of class members, who

have already received notice of the settlement, can determine whether they wish to

participate in, object to, or opt out of that settlement and to scuttle the district

courts consideration of final approval of the settlement. Their misguided request

for premature appellate intervention will frustrate the district courts development

of a full record that would allow this Court to properly review a final approval

order, including the related certification of the settlement class and subclasses.

And, if Petitioners request is granted, it would likely unleash confusion among

class members, who have just now received notice of the proposed settlement and

are starting to weigh what is in their best interests.

Finally, Petitioners arguments are not only at bottom unripe objections to

the terms of the settlement itself, disguised as a challenge to preliminary class

certification, but also are entirely without merit. For all these reasons, the Court

should deny the Petition.

QUESTION PRESENTED

The sole question is whether Rule 23(f) permits review of a preliminary

class action settlement approval order that directs notice to be sent and sets a date


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certain for a final fairness hearing on the merits of the proposed settlement.

STATEMENT OF FACTS

On July 7, 2014, the district court gave preliminary approval to the

settlement and conditionally certified a settlement class and two subclasses, finding

that there are no obvious deficiencies to cast doubt on the proposed settlements

fairness; the proposed Settlement is the product of good faith, arms length

negotiations; the significant legal challenges facing Plaintiffs support

preliminary approval; the proposed Settlement does not appear to provide undue

preferential treatment to any individual class member or subclass; and the

Settlement falls within the range of possible approval. Pet., Ex. B., at 9-12.

Pursuant to that preliminary approval order, a long-form notice has been

disseminated via first-class mail to all known class members, informing them of

the settlement proceedings and their rights to opt out of the settlement class, or

participate in the settlement or object thereto. See Pet., Ex. A, at 5. Also, a

website has been set up (at www.nflconcussionsettlement.com), which provides

class members with access to the settlement agreement and related documents and

allows them to sign up online for further information on how to register for

settlement benefits if the settlement receives the district courts final approval. In

addition, an automated call center has been established, through which class

members can receive information about the settlement. Significantly, the opt-


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out/objection period began several weeks ago and will continue through October

14, 2014. Id. at 7. The district court has set forth specific procedures for opting

out of the settlement and for lodging objections, and the settling parties must file

responses to objections and papers in support of final approval of the settlement no

later than November 12, 2014. Id. Judge Brody has scheduled a formal Rule

23(e)(2) fairness hearing to take place on November 19, 2014, to determine

whether final approval of the proposed settlement is warranted and to consider

whether . . . to certify the proposed Settlement Class and Subclasses. Id. at 7-8.

ARGUMENT

PETITIONERS DEMONSTRATE NO BASIS FOR IMMEDIATE REVIEW OF A PRELIMINARY SETTLEMENT APPROVAL ORDER

A. Rule 23(f) Does Not Permit This Form of Interlocutory Appeal

Although they discuss the criteria for interlocutory review under Rule 23(f),

see Pet. at 8, conspicuously absent from Petitioners petition and the brief of the

Amicus is citation to a single case holding that Rule 23(f) permits interlocutory

review of preliminary settlement approval orders that conditionally certify a

settlement class. All of Petitioners cases involved either appeals from final class

settlement approvals or interlocutory review of certified litigation classes. For its

part, Amicus does not even address the threshold issue of appellate jurisdiction.

The glaring lack of legal support for this unprecedented request for


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interlocutory review is no mere oversight. Granting immediate review of a

preliminary approval order would require this Court to sit as fact-finder in the first

instance, instead of allowing the district court to develop a complete record

concerning the fairness, reasonableness, and adequacy of the settlement after all

class members have received notice and had an opportunity to voice their views.

The only sliver of authority that Petitioners cite for their extraordinary

request relegated to a footnote is an advisory committee note that accompanied

the 1998 addition of subdivision (f) to Rule 23. See Pet. at 3 n.2.2 Their reliance

on the advisory committees suggestion that 23(f) review might be of value in

cases involving tentative class certification decisions, however, is misplaced.

The tentative certification that the committee referenced in 1998 was the

2 No more availing is the claim, presented as an afterthought in the subsequent footnote, that jurisdiction may lie under 28 U.S.C. 1292(a)(1) because the district courts preliminary approval order temporarily enjoined class members from prosecuting related lawsuits against the Defendants. Pet. at 3 n.3. Irrespective of whether jurisdiction might lie from the preliminary injunction against suits going forward pending the fairness hearing, see Kershner v. Mazurkiewicz, 670 F.2d 440, 449 (3d Cir. 1982) (en banc) ([A] pendent class certification order is not appealable under section 1292(a)(1) unless the preliminary injunction issue cannot properly be decided without reference to the class certification question.), there is no allegation that any of the Petitioners are under injunction. There is not even an allegation that any of them have filed a lawsuit in their own names or that their claims would not be time barred but for the NFLs waiver of the statute of limitations defense as part of the bargained-for settlement. The case that Petitioners cite, In re Federal Skywalk Cases, 680 F.2d 1175 (8th Cir. 1980), involved certification of a litigation class, not preliminary approval of a settlement.


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conditional certification permitted under the former version of Rule 23(c)

whereby courts could make provisional or almost hypothetical certification

determinations, often on an abbreviated record. E.g., In re Cordis Corp.

Pacemaker Prod. Liab. Litig., No. MDL 850, 1992 WL 754061, at *16 (S.D. Ohio

Dec. 23, 1992) (conditionally certifying class, subject to later decertification

following trial, where court freely admit[ted] that action pose[d] potential

management problems which may prove insurmountable); Heights Comty. Cong.

v. Rosenblatt Realty, Inc., 73 F.R.D. 1, 4 (N.D. Ohio 1975) (ascertaining

amenability of action to class treatment solely for limited purposes of hearing on

preliminary injunction application). But that form of certification was abolished

by the 2003 amendments to Rule 23 five years after the adoption of subdivision

(f). See Fed. R. Civ. P. 23, 2003 advisory committee note (Subdivision (c)(1)(C)

reflects two amendments. The provision that a class certification may be

conditional is deleted. A court that is not satisfied that the requirements of Rule

23 have been met should refuse certification until they have been met.).

The now-eliminated tentative certification should not be confused with the

more commonly-known procedure of conditional in the sense of provisional or

preliminary certification of settlement classes. E.g., Gates v. Rohm & Haas Co.,

248 F.R.D. 434, 447 (E.D. Pa. 2008) (For purposes of effectuating the proposed

Settlement, this action is conditionally certified for settlement purposes only as a


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class action.). As this Court has explained, the term conditional certification is

employed in the settlement context because the conditional nature of settlement

class certification preserves the defendants ability to contest certification should

the settlement fall apart. In re Cmty. Bank of N. Va., 418 F.3d 277, 299 (3d Cir.

2005) (citation and internal quotation marks omitted).3

In short, Petitioners extraordinary request for unprecedented appellate

intervention in the Rule 23(e) settlement review and approval process lacks a

scintilla of legal support.

B. Petitioners Attacks on the Preliminary Class Certification Order Are a Thinly-Disguised Attack on the Underlying Settlement

For reasons of their own devising, Petitioners seek nothing more than to

bypass the orderly processes of final class settlement approval under Rule 23(e) in

favor of an unprecedented rush to the Court of Appeals. Although Petitioners and

the Amicus dress up their objections in the portentous language of intra-class

conflicts that supposedly doom[] the class, Pet. at 2, this is nothing more than an

attack on the fairness, reasonableness, and adequacy of the settlement. These

3 A more recent trend has been for courts to employ the term preliminary, rather than conditional, to describe their certification of settlement classes pending consideration of final approval of a settlement. E.g., Richardson v. L'Oreal USA, Inc., 951 F. Supp. 2d 104, 105 (D.D.C. 2013); Better v. YRC Worldwide Inc., No. 11-2072-KHV, 2013 WL 6060952, at *5 (D. Kan. Nov. 18, 2013); Dugan v. Towers, Perrin, Forster & Crosby, Inc., No. 2:09-CV-5099, 2013 WL 5330116, at *1-3, *5-6 (E.D. Pa. Sept. 24, 2013).


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purported conflicts relate to how much compensation the settlement allocates (or

does not allocate) to particular categories of class members and how the settlement

is administered. See id. at 10-16; Amicus Br. at 2-6. Specifically, Petitioners

allege a number of infirmities in the proposed settlement, including:

certain alleged injuries, such as living players who may have CTE, are not compensated (even though Petitioners admit there is no pre-mortem test to

diagnose CTE, see Pet., Ex. C, at 9);

a 75% offset for stroke and Traumatic Brain Injury; time spent playing in the now-defunct NFL Europe League is

excluded from the calculation of an Eligible Season;

the time allowed for registration of settlement benefits is too short; the claims process is burdensome, and the details of the claim form

itself have not been disclosed;

the NFL Parties appeal rights are too broad; and the settlement is otherwise not fair.

Pet. at 9-16.4

4 Of course, no Petition would be fully Amchemized without an attack on class counsel and attorneys fees. Accordingly, the Court is told that class counsel . . . bargained away something of value to further their own interests because Class Counsel allegedly did very little work. Pet. at 18. Petitioners, though, cannot deny that there has been no award of attorneys fees. Putting that aside, pursuant


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This Court cannot properly evaluate these merits-based objections because

the district court has not finally approved the settlement and has not entered a final

order certifying a settlement class. There is simply no factual record, complete

with appropriate findings by the district court, for this Court to review on appeal.

All of Petitioners citations to evidence are to undigested documents and

statements in their objections to preliminary approval in the district court, see Pet.,

Ex. C (ECF No. 6082). Thus, Petitioners are asking this Court to sit as trier of fact

to evaluate the NFL Concussion Settlement, at the same time that class members

are making decisions to participate in, object to, or opt out of the settlement, and

the district court is preparing to adjudicate the merits of the settlement and

satisfaction of the requisites of Rule 23(a) and (b) through a formal fairness

hearing, where evidence will be presented by all interested parties, no doubt

including Petitioners.

Assuming that the district court grants final approval, this Court will soon

have proper jurisdiction under 28 U.S.C. 1291 to review a final approval order

issued pursuant to Rule 23(e), including the certification of the Settlement Class.

to this Courts guidance in Prandini v. National Tea Co., 557 F.2d 1015, 1021 (3d Cir. 1977), attorneys fees were not negotiated until after the terms of compensation for class members were resolved. Needless to add, any examination of this issue is jurisdictionally premature until the district court has ruled on the matter.


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E.g., In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 343-49, 354-58 (3d Cir.

2010) (affirming certification of settlement class but vacating, in part, final

approval of settlement and remanding for further proceedings with respect to one

component); In re SFBC Intl Inc., 310 F. Appx 556, 557-58 (3d Cir. 2009)

(acknowledging section 1291 jurisdiction and reviewing final approval of class

settlement).

In Liles v. Del Campo, 350 F.3d 742 (8th Cir. 2003), the Eighth Circuit

rejected an analogous 23(f) petition and held that interlocutory appeal of a

preliminary settlement approval order would be premature inasmuch as several

steps remained before the district court could finally certify the class and approve

the settlement. That court had no trouble concluding that

an interlocutory appeal would be premature in this case. Several steps remain before the district court finally approves class certification and any settlement. To permit an appeal at this stage would unnecessarily delay the resolution of the litigation and further jeopardize the limited assets available for resolving the claims. Permission for an interlocutory appeal of the conditional class certification should therefore be denied.

Id. at 746. The same considerations apply here.5 As this Court has noted, if

5 Rather than cite the Eighth Circuits Liles decision, which is right on point, Petitioners instead twice invoke Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 144 (4th Cir. 2001) (cited in Pet. at 2, 8), which involves the standard for 23(f) appeal from the full certification of a litigation class. Dicta from Lienhart, taken completely out of context, are inapposite here.


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allowing the litigation to follow its natural course would provide the moving party

with an adequate remedy, interlocutory review will generally prove unnecessary.

Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 164-65 (3d

Cir. 2001).

C. Petitioners Attacks on the Settlement Are, at Any Rate, Meritless

Even were this 23(f) Petition not jurisdictionally infirm, this is not an

exceptional situation warranting a departure from the precept expressed by several

circuit courts considering 23(f) petitions that [i]nterlocutory appeals are generally

disfavored because they are disruptive, time-consuming, and expensive.

Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005) (citation and

internal quotation marks omitted); accord Gelder v. Coxcom Inc., 696 F.3d 966,

969 (10th Cir. 2012); In re DC Water & Sewer Auth., 561 F.3d 494, 497 (D.C. Cir.

2009); Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1276 (11th Cir. 2000);

Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 294 (1st Cir. 2000).

Therefore, even putting to one side the Petitions pronounced jurisdictional

flaw, even the customary application of Rule 23(f) should warrant denial of

review. Respondents will limit themselves to just a few examples because this is

neither the time nor the place to develop a full factual record.

First, Petitioners claim that CTE must be the diagnosis that is compensated,

and that the settlement errs in compensating deceased class members for confirmed


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CTE diagnoses but not doing so for the living class members. This is wrong on

many levels, both practical and in terms of the nature of a settlement that seeks to

compensate manifested impairments of life rather than an underlying medical

diagnosis. Thus, even Petitioners admit there is no accepted test to diagnose CTE

in a living person. See Pet., Ex. C, at 9; see also Pet. at 11. CTE is a pathological

diagnosis of the underlying alteration in the brain that, as yet, can be determined

conclusively only through examination of brain tissue following death.

More fundamentally, Petitioners simply misperceive the settlement. The

settlement provides monetary awards to injured class members for specified

cognitive or neuromuscular injuries. It does not compensate retired players for

exposure to NFL football, or exposure to head impacts while playing (reflective of

the legal requisite of manifest injury). Likewise, it does not compensate players

for the underlying causal disease that cannot be diagnosed while living. Rather,

living and retired players receive monetary awards for specified and demonstrated

neurocognitive or neuromuscular deficits and diseases. For those retired players

who have already died, and who did not carry a diagnosis of a compensable disease

or condition while living, a post-mortem autopsy diagnosis of CTE serves as

sufficient evidence of harm for purposes of establishing compensation.6

6 Notably, while criticizing the proposed settlement for failing to compensate living retired players for well-documented symptoms consistent with CTE, Pet. at 11,


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More broadly and specifically relevant to Petitioners contention that those

without a qualifying injury or condition receive nothing under the settlement (Pet.

at 1, 10-11) the proposed settlement provides medical assessments to every

retired NFL player regardless of his diagnosis or symptomology (in addition to the

medical benefits to players with specified deficits). Pet., Ex. D, at 20-31 (Baseline

Assessment Program). These immediate benefits are both material and legal. All

players receive a baseline medical assessment and monitoring for manifestations of

disease progression, in addition to medical treatment for certain manifestations.

And all players receive immediate legal benefits, including waiver of legal

defenses based on labor preemption or statutes of limitations. Similarly, the

proposed settlement voids limitations in the collective bargaining agreements

(CBA) for players participating in the settlement who wish to both avail

themselves of CBA benefit programs and the substantial relief afforded tort claims Petitioners ignore the settlements injury definitions and framework that provide relief for the very ailments and deficits that Petitioners assert are symptoms of CTE from which they suffer. Compare Pet. at 7, 11 (asserting that settlement provides no compensation for conditions suffered by petitioners, which include attention and concentration deficit, executive function deficit, memory deficit, and visuospatial difficulties) with id., Ex. D (Settlement Agreement, Ex. B-1) at 3 (Injury Definitions) (setting forth criteria for Level 2 Neurocognitive Injury, with maximum monetary award of $3 million, by reference to very deficits Petitioners claim are unaddressed: Evidence of a severe cognitive decline . . . in two or more cognitive domains (complex attention, executive function, learning and memory, language, perceptual-spatial), provided one of the cognitive domains is (a) executive function, (b) learning and memory, or (c) complex attention.).


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in the settlement. Id., Ex. D, at 91 (Art. XXIX), 72 ( 18.1(a)(viii)). Though the

ultimate value of these non-monetary award benefits (provided to all retired

players) has yet to be determined by the district court, at the final fairness hearing

it will be shown to exceed several hundred million dollars a question of fact that

has yet to be fully submitted to the district court, let alone resolved by it.

Petitioners similarly contest the 75% offset in compensation for a non-

football related stroke that occurs prior to a Qualifying Diagnosis of injury under

the settlement. They suggest that this offset is grossly unfair and devoid of

scientific justification in light of the fact that the NFL Defendants own

conduct in administering Toradol increased some Petitioners risk of stroke. Pet.

at 10 & 14. Whether Toradol increases the risk of stroke after a players use while

in the NFL (i.e., long after the use of Toradol), whether the offset would apply in

instances where a class member can demonstrate that the Qualifying Diagnosis is

unrelated to the stroke (id., Ex. D, at 27 ( 6.7(d)), and whether there is scientific

or other justification for the offset are all questions of fact that no court has finally

passed on. This Court is not in a position to rule on this objection based on the

current absence of a record.

As another example, Petitioners argue that the time spent playing football

for now-defunct NFL Europe should be credited towards the calculation of an

Eligible Season at the same level as play in the NFL, for purposes of determining


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compensation. Pet. at 15-16. But this is yet another factual issue that no court has

passed on. Again, this would mean that this Court would have to act as finder of

fact in order to rule on the appeal.

Finally, Petitioners argue that neither proposed class representative has an

interest in securing compensation for all cases of CTE. Pet. at 13. That,

however, ignores the allegations in Plaintiffs Class Complaint showing quite the

contrary. See Turner v. NFL, No. 2:12-cv-00029 (E.D. Pa. filed Jan. 6, 2014)

(ECF No. 1), at 4 (Subclass 1 Representative Shawn Wooden has experienced

repeated traumatic head impacts. After his retirement from football he has

experienced neurological symptoms. Mr. Wooden has not been diagnosed with

any neurocognitive impairment, but is at increased risk of developing dementia,

Alzheimers, Parkinsons, or ALS.). These allegations have not been

controverted, and there is no evidence in the record to suggest that Plaintiff

Wooden is not a proper representative for retired NFL football players whose

injuries have not progressed to the point of a Qualifying Diagnosis prior to the date

of the preliminary approval.

D. Petitioners and the Amicus Procedural Attacks Are Specious

Equally unavailing is Petitioners and the Amicus disparagement of the

substance of the notice sent to class members. See Pet. at 17; Amicus Br. at 9-10.

Petitioners contend that the notice, which, they admit, is already being


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distributed, Pet. at 17, is false and misleading with respect to the benefits

provided for death with CTE, even though the notice clearly states that there will

be compensation under the settlement for death with CTE prior to July 7, 2014.

See Pet., Ex. A, at 6-8; see also www.nflconcussionsettlement.com (Section 5).

Like Petitioners other contentions, that challenge is premature and not the

proper subject of a 23(f) petition. The sufficiency of notice of a proposed

settlement disseminated to members of a class is a matter that is to be addressed by

a district court in connection with its consideration of final approval. E.g., In re

Am. Investors Life Ins. Co. Annuity Mktg. & Sales Practices Litig., 263 F.R.D. 226,

237 (E.D. Pa. 2009) (addressing objections to content of class notice); In re Diet

Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig., 226

F.R.D. 498, 517-21 (E.D. Pa. 2005) (detailed discussion of sufficiency of class

notice and notice plan). Neither Petitioners nor the Amicus cite a single case in

which a circuit court insinuated itself in the middle of the Rule 23(e) process and

required a district court to redo class notice after preliminary approval. Indeed,

with notice now having been disseminated to the class, Petitioners misguided

effort to have this Court order the district court to reissue notice would only sow

immeasurable confusion among class members.

Amicus contentions that separate subclasses (and representation) are

warranted for each category of class members whose injuries are to be


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compensated differently under the settlement fares no better. See Amicus Br. at 6.

The same ALI publication it relies upon has also noted that [i]ncreasingly courts

have become attentive to the reality of tradeoffs in compensation between different

subsections of the class or other structural conflicts in weighing the propriety of

subclass treatment, and that there are frequently significant costs associated with

creating large numbers of subclasses, including the administrative cost of more

lawyers and the difficulties of negotiating in the presence of a large number of

separately represented parties. Principles of Aggregate Litig. 3.10, Reporters

Notes, cmt. c (citing Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1146-48 (8th Cir.

1999) (rejecting need for creation of subclasses despite large differences in

recovery among class members)).

Finally, Amicus contends that the district court has wrongly required those

who wish to opt out of the class to individually sign their opt-outs, even if they

have counsel. Amicus Br. at 7-8. That, too, is unavailing. It is well within a

district courts discretion to prevent attorney-driven tactics by barring counsel from

filing en masse opt-outs. See In re Diet Drugs, 282 F.3d 220, 241 (3d Cir. 2002).

* * *

Plaintiffs cannot possibly present their entire support for, and defense of, the

NFL Concussion Settlement in the posture of an interlocutory 23(f) appeal. To do

so would deprive the district court of its role and proper function, and further deny


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this Court the attendant record-development and evidentiary fact-finding that are

necessary and appropriate to its review. It is almost certainly for this reason that

Petitioners have not cited to any decision granting review of a preliminary order

approving a class settlement. Granting review at this juncture would unnecessarily

add years to this litigation and delay compensation for class members so

desperately in need of relief.

If Petitioners are sincere concerning their objections to the settlement, the

procedural and substantive due process afforded them by the district court pursuant

to Rule 23 will enable them to file formal objections to the settlement or to opt out

of the settlement class and preserve their right to litigate their claims. There is no

way to know at this point what any final order respecting the settlement or

certification of a settlement class might say.

CONCLUSION

For the foregoing reasons, the Court should deny the Petition.

Dated: July 29, 2014


Respectfully submitted, /s/ Christopher A. Seeger Christopher A. Seeger (NY 2425304) David R. Buchanan Diogenes P. Kekatos SEEGER WEISS LLP 77 Water Street New York, NY 10005 (212) 584-0700 (telephone) (212) 584-0799 (facsimile)

Sol Weiss ANAPOL SCHWARTZ 1710 Spruce Street Philadelphia, PA 19103 (215) 735-1130 (telephone) (215) 735-2024 (facsimile) [email protected]

[email protected] [email protected] [email protected]

Co-Lead Class Counsel Samuel Issacharoff 40 Washington Square South, 411J New York, NY 10012 (212) 998-6580 (telephone) [email protected] On the Brief

Steven C. Marks PODHURST ORSECK P.A. City National Bank Building 25 W. Flagler Street, Suite 800 Miami, FL 33130-1780 (305) 358-2800 (telephone) (305) 358-2382 (facsimile) [email protected]

Gene Locks LOCKS LAW FIRM The Curtis Center Suite 720 East 601 Walnut Street Philadelphia, PA 19106 (866) 562-5752 (telephone) (215) 893-3444 (facsimile) [email protected]

Class Counsel


Arnold Levin LEVIN FISHBEIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 (215) 592-1500 (telephone) (215) 592-4663 (facsimile) [email protected]

Counsel for Subclass 1

Dianne M. Nast NAST LAW LLC 1101 Market Street, Suite 2801 Philadelphia, PA 19107 (215) 923-9300 (telephone) (215) 923-9302 (facsimile) [email protected]

Counsel for Subclass 2


CERTIFICATE OF SERVICE

I, Christopher A. Seeger, hereby certify that on the 29th day of July 2014, I

electronically transmitted a true and correct copy of the foregoing document,

PLAINTIFFS-RESPONDENTS ANSWER TO FED. R. CIV. P. 23(f) PETITION FOR

PERMISSION TO APPEAL PRELIMINARY SETTLEMENT APPROVAL ORDER

CONDITIONALLY CERTIFYING SETTLEMENT CLASS, to the Clerk of the Court using

the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to

all attorneys of record who are ECF registrants.

/s/ Christopher A. Seeger Christopher A. Seeger


3rd Circuit Appeal - Plaintiffs Response

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