Harvard Law Professor Changes His Mind Regarding Attorney’s Fees

As we have previously reported, back in September 2017, Judge Anita B. Brody appointed Harvard Law School professor William B. Rubenstein to address questions surrounding the $112.5 million settlement in the NFL concussion litigation. The final settlement established an uncapped fund that would compensate a class of over 20,000 former NFL players. In May 2017, a collection of law firms representing the players, filed a petition seeking $112.5 million common-benefit fee to compensate the class of attorneys.

In his original assessment, Professor Rubenstein said that the $112.5 million fee acted as a tax on the amount available to each player and he concluded that the contingency fee paid to attorneys whom began representing players after and before the date of preliminary approval should be reduced from 20 percent to 15 percent. However, on January 19, 2017, Professor Rubenstein updated his recommendation. He said that after receiving additional information from the class of attorney representing the players, he was convinced that the cap should be raised from 15 percent to 22 percent.

Professor Rubenstein changed his original assessment after he learned that the attorneys representing the players experienced higher participation rates, claim payments, and expenses than were initially expected. In response, in order to keep the one-third contingent fee cap that was originally agreed upon, Professor Rubenstein concluded that the contingency fee cap should be raised from 15 percent to 22 percent. In his updated assessment, Professor Rubenstein acknowledged the opponents of his original assessment, “the higher cap also acknowledges the many response[s] to my report that argued that the 15% cap underestimated the risks and workload.”

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