In re Nat'l Football League Players' Concussion Injury Litig., MDL No. 12–md–2323.

961 F.Supp.2d 708

In re NATIONAL FOOTBALL LEAGUE PLAYERS' CONCUSSION INJURY LITIGATION. This Document Relates to All Actions.

MDL No. 12–md–2323.

United States District Court, E.D. Pennsylvania.

Jan. 14, 2014.

Perry Golkin, New York, NY, pro se.

Christopher J. Wright, Wiltshire & Grannis LLP, Washington, DC, for Brain Injury Association of America.

MEMORANDUM

ANITA B. BRODY, District Judge.

Plaintiffs, through their proposed Co–Lead Class Counsel, Class Counsel, and Subclass Counsel, and Defendants National Football League and NFL Properties LLC (collectively, the “NFL Parties”) ¹ have negotiated and agreed to a Class Action Settlement (“Settlement”) that will resolve all claims against the NFL Parties in this multidistrict litigation and Related Lawsuits. ² To that end, proposed Co–Lead Class Counsel, Class Counsel, and Subclass Counsel have filed a Motion for Preliminary Approval and Class Certification (“Motion”). This Motion is unopposed by the NFL Parties. In light of my duty to protect the rights of all potential class members and the insufficiency of the current record, I will deny the Motion without prejudice.

I. BACKGROUND

In July 2011, Retired NFL Football Players filed the first lawsuit against the NFL Parties alleging, inter alia, that the NFL Parties breached their duties to the players by failing to take reasonable actions to protect players from the chronic risks created by concussive and sub-concussive head injuries and that the NFL Parties concealed those risks. Since then, more than 4,500 former players have filed substantially similar lawsuits. These lawsuits have been consolidated before me as a multidistrict litigation (“MDL”), pursuant to 28 U.S.C. § 1407. See Panel on Multidistrict Litigation Transfer Order, Jan. 31, 2012, ECF No. 1, 842 F.Supp.2d 1378. As the transferee judge, I exercise authority over any coordinated or consolidated pretrial proceedings, including settlement proceedings. See In re Patenaude, 210 F.3d 135, 144–45 (3d Cir.2000); 15 Charles Alan Wright et al., Federal Practice & Procedure § 3866 (4th ed. 2013) (“The transferee judge inherits the entire pretrial jurisdiction that the transferor court could have exercised had the case not been transferred.”).

On July 8, 2013, I directed the parties to mediation before retired U.S. District Judge Layn Phillips. Order, July 8, 2013, ECF No. 5128. During the course of the mediation, “[t]he Settling Parties met with multiple medical, actuarial, and economic experts to determine, develop and test an appropriate settlement framework to meet the needs of Retired NFL Football Players suffering from, or at risk for, the claimed injuries.” Pl. Mem. Law 36, Jan. 6, 2014, ECF No. 5634. “The parties' economists and actuaries assisted in modeling the likely disease incidence and adequacy of the funding provisions and benefit levels contained in the proposed settlement.” Pl. Mot. Ex. D, Phillips Decl. ¶ 8, Jan. 6, 2014, ECF No. 5634. On August 29, 2013, Judge Phillips informed me that the Plaintiffs and the NFL Parties had signed a term sheet incorporating the principal terms of a settlement. Order, Aug. 29, 2013, ECF No. 5235. On December 16, 2013, pursuant to Federal Rule of Civil Procedure 53, I appointed Perry Golkin as Special Master to assist me in analyzing the financial aspects of the Settlement. Order Appointing Special Master, Dec. 16, 2013, ECF No. 5607. Plaintiffs filed their Class Action Complaint on January 6, 2014. Class Action Compl., Turner v. Nat'l Football League, No. 14–29 (E.D.Pa. Jan. 6, 2014), ECF No. 1.

II. THE PROPOSED CLASS ACTION SETTLEMENTA. The Proposed Settlement Class

The Settlement provides for a nationwide Settlement Class consisting of three types of claimants: (1) Retired NFL Football Players; (2) authorized representatives, ordered by a court or other official of competent jurisdiction, of deceased or legally incapacitated or incompetent Retired NFL Football Players (“Representative Claimants”); and (3) close family members of Retired NFL Football Players or any other persons who properly assert, under applicable state law, the right to sue by virtue of their relationship with the Retired NFL Football Player (“Derivative Claimants”). Based on the records of the NFL Parties, there are more than 20,000 Settlement Class Members. Pl. Mem. Law 41, Jan. 6, 2014, ECF No. 5634.

The Settlement Class consists of two Subclasses: Subclass 1 is defined as Retired NFL Football Players who were not diagnosed with a Qualifying Diagnosis prior to the date of the Preliminary Approval and Class Certification Order, and their Representative Claimants and Derivative Claimants; and Subclass 2 is defined as Retired NFL Football Players who were diagnosed with a Qualifying Diagnosis prior to the date of the Preliminary Approval and Class Certification Order and their Representative Claimants and Derivative Claimants, and the Representative Claimants of deceased Retired NFL Football Players who were diagnosed with a Qualifying Diagnosis prior to death or who died prior to the date of the Preliminary Approval and Class Certification Order and who received a post-mortem diagnosis of chronic traumatic encephalopathy (“CTE”). A Qualifying Diagnosis is defined as Level 1.5 Neurocognitive Impairment (early Dementia), Level 2 Neurocognitive Impairment (moderate Dementia), Alzheimer's Disease, Parkinson's Disease, amyotropic lateral sclerosis (“ALS”), and/or Death with CTE.

B. The Proposed Settlement

As explained in the Plaintiffs' Memorandum of Law accompanying the Motion, the NFL Parties will make payments totaling $760 million over a period of 20 years to create three potential sources of benefits for Settlement Class Members.

First, the Settlement provides for a $75 million Baseline Assessment Program (“BAP”) that will offer eligible Retired NFL Football Players baseline neuropsychologicaland neurological evaluations to determine the existence and extent of any cognitive deficits. In the event that retired players are found to suffer from moderate cognitive impairments, they may receive certain BAP Supplemental Benefits in the form of specified medical treatment and/or evaluation, including counseling and pharmaceutical coverage.

Second, the Settlement provides for a $675 million Monetary Award Fund that will award cash to Retired NFL Football Players who already have a Qualifying Diagnosis or receive one in the future.³ Representative Claimants and Derivative Claimants related to such players will also be eligible for cash awards. The Qualifying Diagnoses and their maximum Monetary Award levels are as follows: Level 1.5 Neurocognitive Impairment ($1.5 million); Level 2 Neurocognitive Impairment ($3 million); Alzheimer's Disease ($3.5 million); Parkinson's Disease ($3.5 million); ALS ($5 million); Death with CTE ($4 million). These awards may be reduced based on a retired player's age at the time of diagnosis, the number of NFL seasons played, and other applicable offsets outlined in the Settlement Agreement.

Third, the Settlement establishes a $10 million Education Fund to fund education programs promoting safety and injury prevention with regard to football players, including safety-related initiatives in youth football. This Fund will also educate Retired NFL Football Players regarding the NFL's medical and disability programs.

In addition, the NFL Parties will pay up to $4 million in notice expenses. The NFL Parties will also pay attorneys' fees and costs, which Plaintiffs' Co–Lead Counsel will seek in an amount not to exceed $112.5 million. These amounts are in addition to the $760 million for the BAP, the Monetary Award Fund, and the Education Fund.

The Settlement includes a complex system of administration to manage the distribution of benefits. A Special Master, appointed for a five-year term, will oversee the work of a BAP Administrator, a Claims Administrator, and other administrative staff. The NFL Parties have agreed to pay one-half of the compensation of the Special Master, which is capped at $200,000 per year. The BAP Fund will pay the compensation and reasonable costs and expenses of the BAP Administrator. The Monetary Award Fund will pay the compensation and reasonable costs and expenses of the Claims Administrator; the reasonable costs and expenses of the Special Master; and the other half of the Special Master's compensation.

In exchange for the benefits provided in the Settlement, Settlement Class Members and their related parties will release all claims and dismiss with prejudice all actions against, and covenant not to sue, the NFL Parties and others in this litigation and all Related Lawsuits in this Court and other courts. Settlement Class Members who receive Monetary Awards will also be required to dismiss pending and/or forebear from bringing litigation relating to cognitive injuries against the National Collegiate Athletic Association (“NCAA”) and any other collegiate, amateur, or youth football organizations and entities.

III. DISCUSSIONA. Nature of a Class Action

Plaintiffs have chosen to structure this case as a class action. “Class actions are a form of representative litigation. One or more class representatives litigate on behalfof many absent class members, and those class members are bound by the outcome of the representative's litigation.” 1 William B. Rubenstein, Newberg on Class Actions § 1:1 (5th ed.2013) [hereinafter Rubenstein, Class Actions]. Class certification enables courts to treat common claims together, obviating the need for repeated adjudications of the same issues. Rubenstein, Class Actions at § 1:6. Class actions achieve “the protection of the defendant from inconsistent obligations, the protection of the interests of absentees, the provision of a convenient and economical means for disposing of similar lawsuits, and the facilitation of the spreading of litigation costs among numerous litigants with similar claims.” U.S. Parole Comm'n v. Geraghty, 445 U.S. 388,...