by Brian Wolfman
Federal district judge Anita Brody in Philadelphia has preliminarily approved a class-action settlement in a case brought by former NFL football players against the NFL. The players claim that the NFL is responsible for their serious concussion-related injuries (and concussion-related injuries that they will suffer in the future).
Judge Brody's 21-page preliminary approval memorandum is accompanied by the proposed settlement notice, which describes the settlement's terms, and other interesting information. At the beginning of her memorandum, Judge Brody briefly describes the litigation:
In July 2011, the first retired players filed lawsuits against the NFL Parties alleging, inter alia, that the NFL Parties breached their duties to the players by failing to take reasonable actions to protect players from the chronic risks created by concussive and sub-concussive head injuries and that the NFL Parties concealed those risks from the players. Since that time, more than 5,000 former players have filed substantially similar lawsuits. These lawsuits have been consolidated before me as a multidistrict litigation (“MDL”), pursuant to 28 U.S.C. § 1407. See MDL Panel Transfer Order, Jan. 31, 2012, ECF No. 1.
For a compelling history of the NFL concussion crisis and the NFL's alleged cover-up, read League of Denial by Mark Fainaru-Wada and Steve Fainaru or watch the Frontline version of the book. (The Frontline webpage includes a 113-minute comprehensive movie and various follow-up clips from players and others.)
To oversimplify, the settlement, if finally approved, will provide compensation to class members who can show that they suffer from certain compensable diseases. Age of diagnosis is an important variable. Thus, a class member with Parkinson's disease diagnosed at age 57 will receive $1.3 million; a class member disagnosed with Parkinson's disease at age 51 will receive $1.9 million. A class member with Alzheimer's disease diagnosed at age 61 will receive $950,000; a class member with Alzheimer's disease diagnosed at age 46 will receive $2.3 million. No showing of causation -- that is, that playing football caused the compensable injury -- is required. Future awards will be adjusted upward to account for inflation (but the upward adjustment is capped at 2.5% per year, even if actual inflation exceeds 2.5% in a particular year).
The settlement will also provide $75 million for baseline testing of class members and $10 million for medical research into cognitive impairment and injury prevention for football players.
The class members will have approximately 90 days from the date they are formally notified of the proposed settlement to opt out. A class member who opts out may sue the NFL individually.
Earlier this year, Judge Brody had refused to preliminarily approve a settlement because the total amount going to the players was capped at $675 million. Under the settlement now before the court, the total amount awardable to players is uncapped (although the parties still believe the actual amount awarded will not exceed $675 million).
Some former players are objecting to the settlement. Objectors claim, among other things, that some concussion-related diseases are not compensable under the settlement and that the procedures for showing eligibility for compensation are too onerous.
The final approval hearing will be held in Judge Brody's Philadelphia courtroom on November 19, 2014 at 10 am. We will try to provide more information on the settlement and the objections later.
For other articles on the preliminary approval, go here, here, and here.
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