Intercepted: Judge Orders Parties to Amend NFL Concussion Settlement | Practical Law

Intercepted: Judge Orders Parties to Amend NFL Concussion Settlement | Practical Law

A recent ruling in the National Football League (NFL) concussion case demonstrates how seriously courts take their responsibility of ensuring that class action settlements are fair, reasonable and adequate.

Intercepted: Judge Orders Parties to Amend NFL Concussion Settlement

Practical Law Legal Update 3-599-4605 (Approx. 3 pages)

Intercepted: Judge Orders Parties to Amend NFL Concussion Settlement

by Practical Law Litigation
Published on 17 Feb 2015 • USA (National/Federal)
A recent ruling in the National Football League (NFL) concussion case demonstrates how seriously courts take their responsibility of ensuring that class action settlements are fair, reasonable and adequate.
Unlike settlements in ordinary suits, the court must approve a class action settlement to ensure that the proposed settlement is fair, reasonable and adequate (Federal Rule of Civil Procedure 23(e)). This is to protect the interests of unnamed class members who are not present during settlement negotiations. A recent ruling in the National Football League (NFL) concussion class action demonstrates how seriously courts take this responsibility.
In 2012, a group of former NFL players brought claims against the NFL and others related to traumatic brain injuries allegedly caused by concussions sustained while playing in the NFL. A federal multi-district litigation was established in the United States District Court for the Eastern District of Pennsylvania, and the court preliminarily approved a proposed class action settlement conditionally certifying classes and subclasses on July 7, 2014. Among other things, the proposed settlement agreement awarded $4 million to qualifying settlement class members, established a program by which qualifying retired NFL players could receive a baseline neuropsychological examination and set out the appeals process for those settlement class members who wish to dispute a determination about whether they are entitled to an award under the terms of the agreement. (See Turner v. Nat'l Football League (In re Nat'l Football League Players Concussion Injury Litig.), 301 F.R.D. 191, 195 (E.D. Pa. 2014).)
On February 2, 2015, United States District Judge Anita Brody issued an order listing the following amendments that the parties should make to the proposed settlement to enhance its fairness, reasonableness and adequacy:
  • Qualifying credit for time played in certain nondomestic leagues.
  • Baseline examinations for all qualifying players who timely register for settlement and seek the examination, regardless of any funding limitations.
  • The inclusion of eligible players who have died from chronic traumatic encephalopathy between the date of the court's preliminary and final approval of the settlement.
  • A hardship provision for those who wish to appeal an entitlement determination but cannot afford the appeal fee.
  • Reasonable accommodation for settlement class members who cannot support their qualifying diagnosis with medical records due to force majeure events.
The court further ordered the parties to provide an explanation if they were unwilling to make these changes to the settlement. (In re Nat'l Football League Players' Concussion Injury Litig, No. 2:12-md-02323-AB (E.D. Pa. Feb. 2, 2014).)
As this case proves, courts will not simply rubber stamp a class action settlement agreement. Parties negotiating a class action settlement should be mindful that a court will scrutinize a proposed agreement and make whatever changes it deems necessary to protect the class as a whole.
For more information related to settling class actions, see Practice Note, Settling Class Actions: Process and Procedure. For more information about class actions generally, see Class Action Toolkit.