NFL had strong factual, legal defenses against concussion claims: league's Pash
Memo this afternoon from NFL general counsel Jeff Pash to NFL teams:
District Judge Anita B. Brody granting final approval to the settlement of the concussion litigation.
The unanimous decision was written by Circuit Judge Thomas Ambro, who has authored a number of significant decisions on class action settlements in the past. (The other judges on the panel were Judge Thomas Hardiman and Senior Judge Richard Nygaard.) In a comprehensive opinion, the Court of Appeals reviewed each of the arguments made by the objectors and found that Judge Brody had properly exercised her discretion in approving the settlement. The Court affirmed the district court decision in full “because we are satisfied that the District Court ably exercised its discretion in certifying the class and approving the settlement.”
The opinion specifically addressed not only the more technical aspects of class action settlements, but also the specific objections raised to the substantive terms of the settlement. With respect to the class action issues, the Court of Appeals upheld Judge Brody’s findings that the class was properly defined, that the claims were appropriate for class action treatment, that the notice of the settlement was proper and conveyed more than enough information to allow retired players and their families to make an informed decision whether to opt out, and that the overwhelmingly positive response among the more than 20,000 retirees covered by the settlement was a strong factor in favor of approval.
With respect to the substantive terms of the settlement, the Court of Appeals specifically reviewed and affirmed each element of Judge Brody’s analysis, holding that retired players faced a substantial risk of litigation and “that the settlement represents a fair deal for the class when compared with a risk-adjusted estimate of the value of plaintiffs’ claims.” This is because the plaintiffs faced significant “litigation risks inherent in pressing forward with the case,” including our labor preemption defense “that could have left retired players to pursue claims in arbitration or with no recovery at all” and causation, where players faced “stiff challenges,” among other defenses. The Court also agreed with our contention that disapproving the settlement would lead to lengthy and costly litigation: absent a settlement, “we expect the proceedings would result in years of costly litigation and multiple appeals, all the while delaying any potential recovery for retired players coping with serious health challenges.”
Today’s opinion also specifically found that the settlement’s treatment of CTE was fair and reasonable in all respects. The Court noted that the CTE studies to date suffer from several limitations, including selection bias and other potential risk factors for developing CTE, and therefore cannot generate “predictive, generalizable conclusions” regarding who is at risk for developing this condition.
The Court also rejected the other challenges raised by the objectors, finding that, in each instance, Judge Brody properly analyzed the issues and exercised her judgment appropriately.
Today’s decision is a significant step in implementing the clubs’ commitment to provide compensation to retired players who are experiencing cognitive or neurological issues. It reflects the decision of the clubs to set aside strong legal and factual defenses, and instead provide medical care and compensation for retirees and their families.