Law360 (May 24, 2019, 7:40 PM EDT) — In a move that came as a surprise and left many attorneys furious, the federal judge overseeing the NFL’s landmark concussion settlement terminated all of the deal’s leading lawyers except Chris Seeger on Friday, heightening long-simmering tensions between Seeger and his fellow attorneys and plunging the contentious case into uncharted waters.
U.S. District Judge Anita B. Brody’s two-page order gave little indication of the impact the ruling is likely to have on the settlement, which was rocked in recent weeks by her decision to approve a set of new rules for doctors that many player attorneys think will make it harder for their clients to get paid. The order reduces the number of powerful class counsel from six firms to just one, Seeger Weiss LLP, which has always exercised the most influence over the deal.
Friday’s order also means that those five firms — Locks Law Firm, Anapol Weiss, Podhurst Orseck PA, Levin Sedran & Berman LLP and NastLaw LLC — will presumably be cut out of the settlement’s highly lucrative pool of common benefit fund fees going forward.
Judge Brody said in the order that “there is a need to conserve the common benefit fund,” which was initially stocked with a $112 million payment from the NFL and also includes a 5 percent holdback on all approved claims. Of that initial $112 million, only about $13 million still remains, with Seeger Weiss having taken home roughly $60 million thus far.
Gene Locks of Locks Law Firm told Law360 he was completely blindsided by the order.
“The court has consistently refused to allow anyone other than Mr. Seeger and his firm to participate on behalf of the class, and the stated justification, the need to preserve the common benefit fund, is disingenuous because virtually all of those fees have already been paid to Mr. Seeger despite the fact that he represents very few clients” Locks said. “This order effectively extinguishes any remaining hope that the individual interests of the class members will be adequately protected in the future.”
Law360 spoke to six attorneys involved in the settlement for this story. All six said they’d never seen an order like Friday’s before, and four of them said they hoped it would lead to an appeal to the Third Circuit.
Steven Marks of Podhurst Orseck, another principal architect of the settlement agreement, echoed Locks’ shock and dismay.
“The order came as a complete surprise,” Marks said. “There was no notice to class counsel, who have spent so much time, money and energy on trying to make this settlement effective and meaningful for all of the many clients they represent.”
“This is yet another disappointment in a series of very unfortunate developments in this case,” he added.
Anapol Weiss, Levin Sedran & Berman and NastLaw did not respond Friday to requests for comment. The NFL declined to comment.
Seeger directly represents only a handful of the retired players covered by the settlement and he has come under fire from other attorneys over his perceived unwillingness to go to the mat with the NFL. Through a spokesperson, Seeger said only that he “will continue to fight on behalf of former players and their families to ensure that they receive every benefit they deserve under the settlement.”
Locks Law, Podhurst Orseck and Anapol Weiss jointly filed a motion for reconsideration last month challenging the new medical guidelines. That order was denied last week, a development many attorneys viewed in and of itself as a highly troubling sign for the settlement’s future.
Many player attorneys viewed that decision as a major victory for the NFL in that respect, and speculated that the motion for reconsideration had led to Friday’s order.
“I think she was pissed they didn’t get in line and accept the new rules,” said one attorney, referring to the class counsel firms that filed the motion and Judge Brody. “So she listened, then she denied them, and now she’s thrown them off.” The attorney represents players in the deal, but requested anonymity to speak candidly about Friday’s order.
The settlement was approved in 2015 and allowed the NFL to put to rest thousands of lawsuits claiming it had known for decades about the long term dangers of concussions, but did nothing to warn its players. The settlement established an uncapped fund to pay players who can prove they’re suffering from cognitive issues caused by their years on the field.
The deal went into full effect in January 2017, and since then the NFL has aggressively pushed for a number of changes to the claims process that player attorneys have complained would make it much more difficult for players to prove their illnesses and get paid.
Pat Tighe, a Miami based attorney who’s been an outspoken critic of many of the NFL’s proposed changes and has frequently sparred with Seeger, likened Friday’s order to the Saturday Night Massacre, when President Richard Nixon fired his attorney general after he refused to remove the special prosecutor investigating the Watergate scandal.
“Many of my clients have already lost hope, and all of them are going to be very concerned now that the only class counsel is Seeger,” Tighe said. “But the truth of the matter is that this doesn’t really change anything — Seeger had all the power anyway.”
Craig Mitnick, who represents roughly 1,200 players and has also butted heads with Seeger in the past, said he was deeply concerned about Friday’s order.
“I thought that nothing could amaze me anymore with this settlement, but this amazes me,” Mitnick said.
“How can the judge make informed decisions about the implementation of a settlement that’s been as rough as this one, without having any guidance or input from attorneys that are actually representing players in the claims process,” he added. “It’s really a sad day for this settlement.”
The case is In re: National Football League Players’ Concussion Injury Litigation, case number 2:12-md-02323, in the U.S. District Court for the Eastern District of Pennsylvania.
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