Public Citizen Inc., a public interest advocacy group, filed an amicus brief arguing that the two leading plaintiffs Kevin Turner and Shawn Wooden insufficiently represent the interest of the more than 22,000 putative class members in the NFL concussion lawsuit.
The group said in the brief, “[The federal rule governing class certification] does not allow class counsel, representing only two of several necessary subclasses, to make decisions that they and defendants accurately describe as a compromise among the disparate interests of 20,000 class members with a wide range of differing present and potential injuries.” Turner who played for more than five years was diagnosed with ALS while Wooden who also played for more than five years has not yet been diagnosed with compensable disease but may be at risk. The group suggested separate subclasses need to be created to represent players with different diseases including CTE and players with varying lengths of play histories in the NFL.
In conclusion, the brief said, “Overall perhaps a dozen representatives would be needed — not an overwhelming number for a negotiation,” and “Once chosen, those representatives, through counsel, would negotiate and, one hopes, reach a settlement, but one in which all affected interests would have their say, if not their way. This is what class counsel said they sought to do, but they did so without the full range of representatives at the bargaining table.” Previously, class counsel has said separate representation for different subclasses would have made the negotiation impossible.
The class certification is a prerequisite to approval of the proposed settlement plan that was the subject of the fairness hearing held in November.
Source: NFL Concussion Plaintiffs Improper As Class Reps: Group (Subscription required)