The five-year NFL concussion litigation finally came to a conclusion when a settlement was reached, however, while the court has given final approvals regarding several objections and opening the registration for all class members, lingering issues still remain regarding the allocation of attorneys’ fees, as counsel for thousands of class members are scrambling to take their fair share.
The concussion litigation settlement established a bottomless fund over a sixty-five year period to compensate a class of over 20,000 former NFL players. The deal offered payments ranging from $1.5 million to $5 million for conditions connected to traumatic brain injuries, including dementia, Alzheimer’s disease and Parkinson’s disease.
Lead class attorneys on the case from Seeger Weiss LLP and Anapol Weiss filed a petition, in which they sought $112.5 million for compensation for the class attorneys who provided a “common benefit” to the class. Additionally, the attorneys moved for a five percent set-aside for the costs associated with administrating the settlement over the next 65 years — the duration of the settlement period. Notably, Seeger Weiss’ counsel has already mentioned that it will not collect from its individual client agreements, as much of their work was done for the common benefit.
The petition did not come without objections. Former players/their families argued the common benefit amount exceeds an appropriate set-aside amount, or is, at the very least, premature. Other disputes regarding the fee award arose between former NFL players and counsel over contingent fee agreements, which would reduce the class members’ payout from the settlement.
The disputes regarding these fees have raised doubt that the settlement will actually provide the needed payouts to the NFL class members and their families. In contrast, experts maintained that such disputes were unavoidable given the case’s size and complexity, as the attorneys on the case must be compensated for the thousands of hours put in, combined with the millions of dollars expended to reach the uncapped settlement with the NFL.
Philip Calabrese, a product liability and class action defense litigator with Porter Wright Morris & Arthur LLP, stated that “[i]t gets very complicated very quickly, and can be very difficult for the lawyers to explain and for the judge, so it is not surprising that there is a lot of dispute about fees.” He continues that “[s]ome of the dispute may be due to misunderstanding, some may be due to objections and concerns over the amount of attorneys’ fees being paid as opposed to the amount to the settlement class, and some of it may just be gamesmanship by the lawyers.”
In January, Kevin Turner’s estate, a former player for the Philadelphia Eagles and New England Patriots, argued Podhurst Orseck PA — the firm that had represented him and one of the firms on the class executive committee—should not be able to collect from his retainer agreement, alleging double dipping on behalf Podhurst by collecting from both the potential $112.5 million settlement award and from Turner’s contingency fee agreement, which would reduce his recovery by $5 million.
Other class members joined Tuner’s objection, prompting responses from Podhurst and The Locks Law Firm, alleging that the class certification did not “categorically” negate the individual contingency fee agreements.
Turner clarified his argument, as he did not contend that all contingent agreements should be negated, but rather, due to “particular circumstances surrounding the terms” of Turner’s retainer agreement with Podhurst, enforcement would be improper, because Podhurst did most of its work for the common benefit, and any work done on behalf of Turner was “nominal.”
However, Timothy O’Brien, a product liability and personal injury litigator with Levin Papantonio Thomas Mitchell Rafferty & Proctor PA, and attorneys for chapter 7 bankruptcy in Plymouth stated that it is common practice in mass litigation like this to provide both common benefit work and work for individual clients. Therefore, the work done for the common benefit is significant and in addition of representing interests of individual class members.
As O’Brien stated, “[t]he attorney wears two different hats in that regard, [o]ne is that he represents the individual interests of his clients. The other one is that he represents the common benefit. The attorney who does both is doing as much work on the individual cases as an attorney who is doing no work for the common benefit but is representing his client individually. Otherwise, you would never have folks do the common benefit work.”
The common benefit fee petition has also raised objection and controversy. Seeger Weiss and Anapol filed an in-depth defense of the requested $112.5 million and 5 percent set-aside, arguing that the objections were “meritless.” The amounts are tied to agreements in the settlement, and according to the firms, the fund could end up paying out almost $1.2 billion.
The firms contended that some of the objectors are the same who had challenged the settlement in off the bat, and thus, are just trying to couch those complaints into the fee issue. Further, they alleged that the set-aside is necessary to motivate lawyers “down the road to get up to speed on the history of the litigation, the settlement’s details and what will by then be the history of the settlement’s effectuation.”