NFL Former Players: Counsel Fees Unfair in Proposed Concussion Settlement

In a memorandum of law submitted to Judge Anita Brody who must rule on the fairness of the proposed class settlement certain former NFL players say they will bear an unfair burden in counsel fees.  Their attorneys argue:

"The proposed settlement is unfair to all former players who filed suit against the NFL. Under the proposal, players who hired lawyers must separately pay their lawyers for representing them in this litigation. Most of the litigant-players in this category are subject to contingency fee contracts where a portion of the player’s recovery goes to their attorney as an attorney’s fee. In contrast, former players who
did not join the litigation are eligible for the same recoveries. But the non-litigant players do not have to pay any attorneys’ fees or other administrative costs. This means that the proposed settlement provides dissimilar treatment to persons with similar claims. As a result, the settlement is not fair, reasonable and adequate
under Fed. R. Civ. P. 23(e)(2)."

Little Rock Schools to Lose Desegregation Aid - AP

The nation watched as federalized National Guardsmen enforced a court's desegregation order at Little Rock, Arkansas's Central High School.  A desegregation plan entered in 1982 will soon come to an end thanks to a federal District Judge's Price Marshall's ruling - though there will doubtless be another review by the U.S. Court of Appeals for the Eighth Circuit which has blocked previous efforts by the judge.  - GWC

Judge Approves Desegregation Plan Termination in Arkansas // Associated Press

LITTLE ROCK, Ark. — January 13, 2014 

A federal judge approved a settlement Monday that would allow the state of Arkansas to stop making payments to three Little Rock-area school districts to aid their desegregation efforts.

Federal District Judge Price Marshall signed off on the pact after hearing several hours of testimony from opponents of the deal and lawyers for the signees: the state, the districts and black schoolchildren.

Alex Rodriguez Continues Fight; Arbitrator’s Ruling Becomes Public - NYTimes.com

A-Rod's alleged drug regimen

In a Complaint filed today in U.S. District Court in Manhattan baseball star Alex Rodriguez seeks to set aside an arbitrator's award suspending him for a full season.  The player alleges that the arbitrator was evidently partial to Major League Baseball and grossly exceeded his authority under the collective bargaining agreement between the big leagues and the Major League Baseball Player's Association.
Setting aside such an award is a tall order.  Courts usually defer to arbitrators interpretations of the scope of their authority under the contract.  Factual findings by arbitrators are rarely examined - a reflection of courts' long standing deference to private dispute resolution. agreements - a trend recently underlined by the U.S. Supreme Court's upholding the one-sided arbitration clauses imposed by companies like ATT upon their customers who have no real choice but to accept the profferred terms of service.  In the case of a collective bargaining agreement under the National Labor Relations Act the employee is subject to the union as exclusive representative, though as here he may be allowed private counsel in the arbitration proceedings.
Alex Rodriguez Continues Fight; Arbitrator’s Ruling Becomes Public - NYTimes.com:
by Steve Eder

The filing, provided by Rodriguez’s lawyers, also accuses Fredric Horowitz, Major League Baseball’s chief arbitrator, of exhibiting “a manifest disregard for the law” and claims that he was not impartial and that he refused to hear evidence in Rodriguez’s appeal of the suspension imposed against him last year....




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Circuit Court upholds approval of BP oil spill settlement

Deepwater Horizon rig burning

The Fifth Circuit U.S. Court of Appeals has upheld (2-1) Judge Carl Barbier's approval of the class action settlement in the BP oil spill cases.  Although it had supported the agreement which it negotiated, BP later intervened to urge decertification of the class.  It secured the vote of Judge Emilio Garza who dissented saying that the broad terms of the agreement permitted compensation of people who had in fact suffered no loss, depriving them of Article III standing (case and controversy) .  The majority, however rejected that view, saying that it is enough for Rule 23 purposes that the agreement was non-collusive and that the plaintiffs "seek recovery for an economic harm they allege they have suffered".

The decision - despite its bizarre procedural posture as BP repudiates an agreement it negotiated - will doubtless be presented to the Circuit Court en banc.  That court and the U.S. Supreme Court at a later stage, could well find that the deference shown to the parties at class certification stage is insufficient  to support a judgment approving a class action settlement. 
I think that is a very close call that Judge Garza made.  I am sympathetic to an aggressive role for MDL judges - to assure fairness, etc.  This is a class action, of course, but the public character of the cases removes them from the purely private wrongdoer-victim model that my eminent colleague Ben Zipursky and his collaborator John Goldberg preach.  But a mega-deal by a giant like BP - which has political risk and market positioning objectives - may not be the best case to explore the limits of judicial power. 
- gwc

OTHERWISE: Court upholds approval of BP oil spill settlement - Government - The News Herald:

by The Associated Press

NEW ORLEANS (AP) — Over BP's objections, a federal appeals court on Friday upheld a judge's approval of the company's multibillion-dollar settlement with lawyers for businesses and residents who claim the massive 2010 oil spill in the Gulf of Mexico cost them money.BP has argued that U.S. District Judge Carl Barbier and court-appointed claims administrator Patrick Juneau have misinterpreted settlement terms in ways that would force the London-based oil giant to pay for billions of dollars in inflated or bogus claims by businesses.During a hearing in November before a three-judge panel of the 5th U.S. Circuit Court of Appeals, a BP lawyer argued that Barbier's December 2012 approval of the deal shouldn't stand unless the company ultimately prevails in its ongoing dispute over business payments.But the divided panel ruled Friday that Barbier did not err by failing to determine more than a year ago whether the class of eligible claimants included individuals who haven't actually suffered any injury related to the spill.

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NFL $765 Million Concussion-Settlement Prediction May Be Way Off | PRLog

NFL $765 Million Concussion-Settlement Prediction May Be Way Off | PRLog:
PRLog (Press Release) - Jan. 9, 2014 - WASHINGTON, D.C. -- WASHINGTON, D.C. (Dec. 9, 2014):  Although an attorney representing many players regarding a proposed $765 million dollar settlement of concussion-related medical problems says that the vast majority of NFL retirees will accept the controversial deal, this optimism is contradicted by many without a versed interest in the settlement, notes public interest law professor John Banzhaf.

        The tentative deal apparently was to be presented to a federal judge for approval shortly after it was announced many months ago, but even that initial step was held up when the judge, immediately following allegations of possible wrongdoing, appointed a special master to investigate and report back to her.

        More specifically, he is "reportedly investigating allegations of  'double dipping' on the part of some plaintiffs’ attorneys," according to a Pennsylvania legal journal.  Forbes reported it in an article entitled "NFL Concussion Lawsuit Settlement Agreement Stalled By Judicial Intervention."

        Banzhaf has predicted that more than 2,000 retirees are likely to opt out of the deal, a prediction based upon private conversations, as well as on remarks by other impartial commentators.

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Risk, Uncertainty and Precaution: Lessons from the History of US Environmental Law by Robert V. Percival :: SSRN

Robert Percival, an exemplar of what it means to be an engaged scholar, and a China hand, has a new essay exploring the history and importance of the "precautionary principle", much resisted by those who worry most about the cost of regulation, and celebrated by those who emphasize prevention.  Follow Bob at Global Environmental Law Blog. - GWC
h/t Environmental Law & History

Risk, Uncertainty and Precaution: Lessons from the History of US Environmental Law by Robert V. Percival :: SSRN:
by Robert Percival // University of Maryland
Abstract

Globalization and expanding world trade are creating new pressures to harmonize environmental standards. Countries increasingly are borrowing legal and regulatory policy innovations from one another, moving toward greater harmonization of regulatory policies. Regulatory policy generally seeks to prevent harm before it occurs, but the reality is that it usually has been more reactive than precautionary, responding only after harm has become manifest. As regulators seek to improve their responses to new and emerging environmental risks, it is useful to consider what lessons can be learned from past experience with regulatory policy.

This chapter reviews controversies over regulatory policy through the lens of history. It discusses the precautionary principle and why it is valuable even if it does not purport to answer the question of how stringent regulatory policy should be. It also considers recent studies that assess whether regulatory policy is more precautionary in the United States or the European Union and why it is difficult to make confident, comparative conclusions. The chapter then examines the history of how precaution has been incorporated into U.S. environmental law. It demonstrates that, despite the law’s promise to prevent harm before it occurs, regulatory policy has been largely reactive, concentrating primarily on highly visible problems only after harm has become manifest. After reviewing the state of contemporary regulatory politics in the U.S., the chapter concludes by analyzing lessons that can be learned to improve future regulatory policy.

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JPMorgan Settles With Federal Authorities in Madoff Case - NYTimes.com

One advantage of this regulatory enforcement action is that the defrauded investors will not have to pay counsel fees.  The deadly sin of greed led Chase to ignore the obvious signs of a massive fraud.  - GWC
JPMorgan Settles With Federal Authorities in Madoff Case - NYTimes.com:
by Ben Protess and Jessica Silver-Greenberg

On Tuesday, five years after [Bernard]. Madoff’s arrest set off a panic on Wall Street and in Washington, Mr. Madoff’s primary bank received a punishment of its own.
Federal prosecutors in Manhattan imposed a $1.7 billion penalty on JPMorgan for two felony violations of the Bank Secrecy Act, a record payout under that 1970 law, which requires banks to alert authorities to suspicious activity. The prosecutors, essentially accusing the nation’s biggest bank of turning a blind eye to Mr. Madoff’s fraud, will require JPMorgan to pay the $1.7 billion to his victims.
The bank cannot write off the sum as a tax deduction. And including the Madoff settlement, JPMorgan will have doled out some $20 billion to resolve government investigations over the last 12 months.
Later on Tuesday, federal regulators are expected to announce their own rebuke of the bank in a civil case. The Office of the Comptroller of the Currency, according to people briefed on the matter, struck a $350 million settlement with the bank over the Madoff case and broader breakdowns in safeguards against anti-money laundering.

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NFL, Lawyers Submit Proposed Settlement for Court Approval in Concussion Injury Litigation

Proposed class counsel have submitted for approval the agreement negotiated by them for a proposed `opt-out' class of former NFL players.  The $760 million deal must win the approval of Judge Anita Brody, of the federal District Court in Philadelphia.  The proposed settlement and memorandum of law are HERE.  (358 pp) Players who do not opt out are included in the class and would be bound by its terms. The process of obtaining court approval (FRCP 23) is likely to be contentious.
Paul Anderson, a plaintiff's lawyer who writes  NFL Concussion Litigation blog, says "Basically, the NFL is paying a fee to make the lawyers go away – many of them took the bait. I decided that the fight must go on." Last month Anderson, representing a group of former players (1987-1993) critical of the proposal, filed suit directly against the Kansas City Chiefs.  Since Missouri workers comp law does not cover occupational disease claims a tort action against the employer is not barred.  The complaint in that action - Cooper, et al v. KC Chiefs - can be found HERE.  Since they are all retired players their action presumably conflicts with the proposed class action.

Another group - the Brain Injury Association of America has asked the Court to appoint it as a party amicus  to advise the court on fairness, particularly regarding the proposed provision for ongoing medical research.  - gwc

The proposed notice to class members summarizes the terms:

$760 Million NFL Concussion Litigation Settlement

Retired NFL Football Players May Be Eligible for Money and Medical Benefits
A federal court authorized this notice.  This is not a solicitation from a lawyer.

• The National Football League ("NFL") and NFL Properties LLC (collectively "NFL Parties") have agreed  to  a  $760  million   Settlement   of  a  class  action  lawsuit   seeking  medical  monitoring  and compensation for brain injuries al1egedly caused by head impacts experienced in NFL footbal1. The NFL Parties deny that they did anything wrong.

• The Settlement inc1udes all retired players of the NFL, the American Football League  ("AFL")  that merged with the NFL, the World League of American Football,  NFL Europe League and NFL Europa League as well as immediate family members of retired players and legal  representatives  of incapacitated incompetent or  deceased  retired  players.

• The Settlement will provide  eligible retired  players  with:

• Baseline neuropsychological and neurological exams to determine if retired players are:  a) currently suffering from any neurocognitive impairment including impairment serious enough for compensation and b) eligible for additional testing and/or treatment ($75 million);

• Monetary   awards  for  diagnoses   of  ALS  (Lou  Gehrig's  disease), Parkinson’s   Disease, Alzheimer's Disease, early  and  moderate  Dementia  and  certain  cases  of chronic  traumatic  encephalopathy (CTE) (a neuropathological finding) diagnosed  after death ($675 million); and

• Education  programs  promoting  safety  and  injury  prevention   with  respect  to  football players including  safety-related  initiatives  in youth  football, the  education  of retired  players  regarding  the NFL' s medical  and  disability programs  and  other  educational  programs  and  initiatives  ($10 million)
• To get money proof that injuries were caused by playing NFL football is not required.

• Settlement Class Members must register to get benefits. Sign up at the website for notification of the registration date.

• Your legal rights are affected even if you do nothing.  Please read this Notice carefully.

The Fight Must Go On | NFL Concussion Litigation

The proposed NFL concussion class action settlement was filed today.  More on that in the next post.  A reactionary provision of Missouri law bars workers comp claims for occupational diseases.  This created an opening for Paul Anderson to file a tort action on behalf of former players for the Kansas City Chiefs who allege brain injury due to the unsafe conditions of play.  The action is framed in the years 1987 - 1993 when there was no collective bargaining agreement.  The NFL CBA gives the exclusive right of representation to the players union as certified representative under the National Labor Relations Act.  Its 2011 version provides substantial liability protection to the NFL and its physicians, as Nicholas Burkhart argues in a recent paper. - GWC

The Fight Must Go On | NFL Concussion Litigation:
by Paul Anderson  - December 3, 2013

"Basically, the NFL is paying a fee to make the lawyers go away – many of them took the bait. I decided that the fight must go on. The commentator hat is coming off. More work must be done. The public demands the truth and the players deserve justice.To that end, our legal team (comprised of Ken McClain, Dirk Vandever and myself) filed the first ever brain injury lawsuit against the Kansas City Chiefs. Due to a unique opportunity in the law, Missouri is the only state that allows employees to sue their employers directly for occupational diseases. What’s more,our lawsuit is framed to focus squarely on the years (1987 – 1993) when no collective bargaining agreement was in effect.Today, Chris Martin, Kevin Porter, Joe Phillips, Louis Cooper and Leonard Griffin took the first step to lead the former players down the path of justice. Many other players that played for the Chiefs or Rams could also benefit. The time is now.A copy of the lawsuit filed today in Kansas City, Missouri can be found here: Cooper et al v. KC Chiefs."

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Distracted driving most common among young drivers // NEJM

video animation

Distracted Driving and Risk of Road Crashes among Novice and Experienced Drivers — NEJM by Kauer, et al

Drivers who are 15 to 20 years of age constitute 6.4% of all drivers, but they account for 10.0% of all motor vehicle traffic deaths and 14.0% of all police-reported crashes resulting in injuries.1 These rates are thought to result from a combination of young age, inexperience, and risky driving behaviors.2One of the riskiest driving behaviors is the performance of a secondary task, and novice drivers appear to be particularly prone to this distraction.3Distracted driving has been defined as the “diversion of attention away from activities critical for safe driving toward a competing activity.”4 Drivers engage in many competing tasks (including eating, adjusting the radio, and talking to passengers) that are not related to operating the vehicle in traffic, but the use of electronic devices such as cell phones while driving has garnered the most public and mass-media interest. An estimated 9% of all persons who drive during the day do so while dialing or talking on a cell phone or sending or receiving text messages.3