After years of hard-fought litigation, a settlement seemed like it had finally been reached between former players and the National Football League for more than $750 million in favor of payment to the injured players’ and their families, with a large amount of funding also going directly to medical research for head trauma from football-related injuries. However, some members of the class of former players immediately objected to the settlement, and it seems that many of them are still unhappy with the settlement agreement nearly six months later.
This past Tuesday, October 13, 2015, members of the class of plaintiffs who assented to the settlement offer filed a formal brief in opposition to those appellant objectors, who recently asserted, for the first time throughout the appeal process, that a conflict existed amongst one the attorneys for the plaintiffs during the class action lawsuit. Specifically, in their reply brief, the appellants objected to class counsel for the subclass of players who haven’t yet been diagnosed with head trauma, attorney Arnold Levin, was in direct conflict because he or a partner at his law firm also represented players with currently diagnosed head injuries. Because of this conflict, the objectors argue, the settlement was not in the best interest of all the members of the class.
While the settlement-assenting plaintiffs do fleetingly make an argument in opposition to the prejudicial one made by the appellants above, the majority of their recently filed brief consists of arguing against the validity of the timing of the representation conflict argument, not necessarily the claim itself. It is a well-established principle throughout all courts of the United States that appellate courts may only review the issues presented to the lower court and cannot be presented with new issues on appeal. However, for the first time, the objectors are raising the argument in a response brief to the appellate division, and the appellee plaintiffs strongly disagree that this is an appropriate time for conflicts concerning fair and adequate representation to be brought to the court’s attention.
Appellants also want the court to take judicial notice of complaints made concerning Mr. Levin and his firm’s representation in the suit dating back to 2011 and 2012. However, the assenting plaintiffs also oppose the court doing so, even though they may as a matter of law , as they further reinforce that no mention of the conflict was made during any other stage of the settlement process.
But because a decision regarding the issue may take some time, it looks like the long-awaited end to this saga is still seemingly far off into the future.