In Re National Football League Players Concussion Injury Litigation
821 F.3d 410
| 3rd Cir. | 2016Background
- Thousands of retired NFL players sued the NFL alleging it knew about and concealed risks of concussions and repetitive head trauma (including CTE) and failed to protect players; the MDL consolidated over 5,000 plaintiffs before Judge Brody in the E.D. Pa.
- The parties negotiated a global class settlement (initial term sheet Aug. 2013; amended and finally approved Apr. 22, 2015) providing: an uncapped Monetary Award Fund for specified "Qualifying Diagnoses," a $75 million Baseline Assessment Program, and a $10 million Education Fund.
- The proposed class: all living NFL players who retired before July 7, 2014 (≈21,000), with two subclasses—(1) players without a Qualifying Diagnosis as of preliminary approval and (2) players already diagnosed—releasing concussion- and brain-injury claims (including most CTE claims).
- The District Court certified the Rule 23(b)(3) class, found Rule 23(a) factors satisfied (numerosity, commonality, typicality, adequacy), and approved the settlement as fair, reasonable, and adequate after applying Girsh/Prudential factors; numerous objectors appealed.
- Main contested issues on appeal: propriety of class certification (including adequacy and intra-class conflicts, especially present vs. future-injury dynamics), fairness of the settlement (treatment of CTE, offsets, uncapped fund, claims process), notice procedures, and the fee arrangement/clear-sailing provision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Class certification under Rule 23(a) and (b)(3) | Class representatives (Wooden, Turner) and counsel: common questions about NFL conduct and causation predominate; subclasses protect divergent interests | Objectors: heterogeneity of injuries and individualized issues defeat commonality, typicality, predominance | Affirmed: numerosity, commonality, typicality met; predominance and superiority satisfied for settlement class; subclasses and structural protections address Amchem-type conflicts |
| Adequacy of representation and intra-class conflict (present vs. future injuries) | Plaintiffs: separate subclasses with separate counsel and representatives, uncapped/inflation‑adjusted awards, baseline program, ten‑year confer mechanism protect future claimants | Objectors: present-injury reps bargained away futures (Amchem), insufficient independent subclass counsel, latent CTE claims inadequately protected | Affirmed: no fundamental conflict; subclasses and additional safeguards sufficient; class counsel and reps adequate; Amchem distinguished |
| Fairness of settlement—treatment of CTE and compensable conditions | Plaintiffs: settlement compensates core neurocognitive/neuromuscular impairments; many CTE-associated impairments covered; post-mortem CTE awards for those who died before final approval reasonably proxy missed diagnoses | Objectors: excluding CTE for future claimants releases core claims for no compensation; medical science evolving—settlement freezes rights | Affirmed: District Court’s factual findings on nascent CTE science not clearly erroneous; most CTE cases would be covered via existing Qualifying Diagnoses; proxy post-mortem award justified; settlement not fundamentally unfair |
| Notice, attorneys’ fees process, and clear‑sailing clause | Plaintiffs: notice was adequate; fee petition may be deferred and will be reviewable; NFL’s no‑objection up to $112.5M acceptable | Objectors: deferral of fee petition denied meaningful process; clear‑sailing suggests collusion and compromises class recovery | Affirmed: notice satisfied Rule 23 and due process; fee deferral is permissible (Rule 23(h) not violated) though scrutinized; clear‑sailing not per se invalid and no evidence of collusion here |
Key Cases Cited
- Wal‑Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (commonality requires a question capable of classwide resolution)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (present vs. future‑injury conflicts can defeat adequacy; need structural protections)
- In re Gen. Motors Corp. Pick‑Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir. 1995) (factors for evaluating counsel’s conduct and settlement fairness)
- Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975) (nine‑factor test for settlement fairness)
- In re Prudential Ins. Co. Am. Sales Practice Litig., 148 F.3d 283 (3d Cir. 1998) (additional prudential considerations for settlement approval)
- In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004) (predominance and cohesion in class contexts)