OPINIÓN OF THE COURT
TABLE OF CONTENTS
I.INTRODUCTION............,.............:................../.......:. 420
II.BACKGROUND...............................................•........'..421
A Concussion Suits Are Brought Against the NFL........................421
B. The Parties Reaeh a Settlement ......................................422
C. The Proposed Settlement .....................-...............423
1. Monetary Award Fund........:..........■........................423
2. Baseline Assessment Program- —.................................424
3. Education Fund...........................'.......................425
4. The Proposed Class ..-......................................425
III.JURISDICTION & STANDARD OF REVIEW............................425
IV. CLASS CERTIFICATION ................!......................Ó.420
A Numerosity............ — ....................'.....................426
B. Commonality...................'................;...................426
C. Typicality..........................................................427
D. Adequacy of Representation............■..............................428
1. Class Counsel.........-..........................................429
2. Class Representatives.................’...........................430
3. Conflicts of Interest...................'..........................431
E. Predominance..................-....................................434
F. Superiority..'...............................................'........434
V. CLASS NOTICE...............................................'.........435
VI. CLASS SETTLEMENT.................'.............v.................436
A • Presumption of Fairness................... 436
B. Girsh & Prudential Factors..........................................437
C. Settlement’s Treatment of CTE................. 441
VII. ATTORNEYS’ FEES ... -.......■................................■......\ . .444
A Deferral of Fee Petition ......................: .............■— 444
B. Clear Sailing Provision............................... 447
VIII. CONCLUSION ..............................................’..........447
I, INTRODUCTION
The National Football League (“NFL’) has agreed to resolve lawsuits brought by former .players who alleged, that the NFL failed to inform them of and protect them from the risks of concussions in football, The District Court approved a class action settlement that covered over 20,000 retired players and released all concussion-related claims against the NFL. Objectors have appealed that-decision, arguing that class certification was' improper and that the settlement was unfair. But after thorough review, we conclude that the District Court was right to certify the class and approve the settlement. Thus we affirm -its decision in full.
A. Concussion Suits Are Brought Against the NFL
In July 2011,, 73 former professional football players sued the NFL and Riddell, Inc. in the Superior Court of California. Compl., Maxwell v. Nat’l Football League, No. BC465842 (Cal.Super.Ct. July 19, 2011). The retired players alleged that the NFL failed to take reasonable actions to protect them from the chronic risks of head injuries in football. The players also claimed that Riddell, a manufacturer of sports equipment, should be liable for the defective design of helmets.
The NFL removed the case to federal court on the ground that the players’ claims under state law were preempted by federal labor law. More lawsuits by retired players followed and the NFL moved under 28 U.S.C. § 1407 to consolidate the pending suits before a single judge for pretrial proceedings. In January 2012, the Judicial Panel on Multidistrict Litigation consolidated these cases before Judge Anita B. Brody in the Eastern Distriсt of Pennsylvania as a rhultidistrict litigation (“MDL”).
In re: Nat’l Football League Players’ Concussion Injury Litig.,
To manage the litigation, the District Court appointed co-lead class counsel, a Steering Committee, and an Executive Committee. The Steering Committee was charged with performing or delegating all necessary pretrial tasks and the smaller Executive Committee was responsible for the overall coordination of the proceedings. The Court also ordered-plaintiffs to submit a Master Administrative Long-Form Complaint and a Master Administrative Class Action Complaint to supersede the numerous then-pending complaints.
The Master Complaints tracked many of the allegations from the first lawsuits. Football puts players at risk of repetitive brain trauma and injury because they suffer concussive and sub-concussive hits "during the game and at practice (sub-concussive hits fall below the threshold ' for a concussion but are still associated with brain damage).‘ ’ Plaintiffs alleged that the NFL had a duty to 'provide players with rules and information to protect them fi’om the health risk's — both short and long-term — of brain injury, including Alzheimer’s disease, dementia, dépression, deficits in cognitive functioning, reduced processing speed,' loss of memory, sleeplessness, mood swings, personality changes, and a recently identified degenerative disease called chronic traumatic encephalopathy (commonly referred to as “CTE”).
■Because CTE figures prominently in this appeal,- some background on this condition is-in order. It was first identified in 2002 based on analysis of the brain tissue of deceased NFL players,- including Mike Webster, T)erry Long, Andre Waters, and Justin Strzelczyk.. CTE, involves the build-up of “tau protein” in the brain, a result associated with repetitive head trauma. Medical.personnel have.examined approximately 200 brains with CTE as of
The theme of the allegations was that, despite the NFL’s awareness of the risks of repetitive head trauma, the League ignored, minimized, or outright suppressed information concerning the link between that trauma and cognitive damage. For example, in 1994 the NFL created the Mild Traumatic Brain Injury Committee to study the effects of head' injuries. Per the plaintiffs, the Committee was at the forefront of a disinformation campaign that disseminated “'junk science” denying the link between head injuries and cognitive disorders. Based on the allegations against the NFL, plaintiffs asserted claims for negligence, medical monitoring, fraudulent concealment, fraud, negligent misrepresentation, negligent hiring, negligent retention,-wrongful death and survival,-civil conspiracy,- and loss of consortium.
After plaintiffs filed the Master Complaints, the NFL moved to dismiss, argii-ing that federal labor law preempted the state law claims. Indeed', § 301 'of the Labor Management Relations Act preempts state law claims that - are’“súb-stantially dependent” on the terms of a labor agreement.
Int’l Bhd. of Elec. Workers v. Hechler,
B. The Parties Reach a Settlement
On July 8, 2013, while the' NFL’s motion to dismiss was pending, -the District Court ordered the parties to mediate and appointed a mediator. On August. 29, 2013, after two months of negotiations and more than twelve full days of formal-mediation, the parties agreed .to a settlement in principle-and signed a term sheet. It provided $765 million-to fund medical exams-and offer compensation for .player injuries. The proposed settlement would resolve the ciatos of all retired players- against the NFL related to head injuries.
In January 2014, after more negotiations, class counsel filed in' the District Court a class action complaint and sought preliminary class certification and- preliminary approval of the settlement. The Court denied the motion because it had doubts that the capped fund for paying
Class counsel filed a second motion'for preliminary class certification and preliminary approval in June 2014. The District Court granted the motion, preliminarily approved the settlement, conditionally certified the class, approved classwide notice, and scheduled a final fairness hearing.
In re Nat’l Football League Players’ Concussion Injury Litig.,
Following preliminary certification, potential class members had 90 days to object or opt out of the settlement. Class counsel then moved for final class certification and settlement approval. On November 19, 2014, the District Court held a daylong fairness hearing and heard argument from class counsel, the NFL, and several objectors who voiced concerns against the settlement. After the hearing, the Court proposed several changes to benefit class members. The parties agreed to the proposed changes' arid submitted an amended settlement in February 2015. On April 22, 2015, the Court granted the motion for class certification and final approval of the amended settlement, that grant explained in a 123-page opinion.
In re Nat’l Football League Players’ Concussion Injury Litig.,
C. The Proposed Settlement
, The settlement has three components: (1) an uncapped Monetary Award Fund that provides compensation for retired players who submit pro,of of certain, diagnoses; (2) a $75 million Baseline Assessment Program that provides eligible retired players with free baseline assessment examinations of their objective neurological functioning; and (3) a’ $10 million Education Fund to instruct football players about injury prevention.
1. Monetary Award Fund
Under the settlement, retired players or their beneficiaries are cоmpensated for developing one of several neurocognitive and neuromuscular impairments or “Qualifying Diagnoses.” By “retired players,” we mean players who retired from playing NFL football before the preliminary approval of the class settlement on July 7, 20Í4. The settlement recognizes six Qualifying Diagnoses: (1), Level 1.5 Neu-rocognitive Impairment; (2) Level 2 Neu-rocognitive Impairment;
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(3) Alzheimer’s Disease; (4) Parkinson’s ' Disease; (5) Amyotrophic Lateral Sclerosis (“ALS”); and (6) Death with GTE provided the
A Qualifying Diagnosis entitles a retired player to a maximum monetary award:
Qualifying Diagnosis . Maximum Award
Level 1.5 Neurocognitive Impairment $1.5 Million
Level 2 Neurocognitive Impairment $3 Million
Parkinson’s Disease $3.5 Million
Alzheimer’s Disease $3.5 Million
Death with CTE $4 Million
ALS $5 Million
This award is subject to several offsets, that is, awards decrease: (1) as the age at which a retired player is diagnosed increases; (2) if the retired player played fewer than five eligible seasons; (3) if the player did not have a baseline assessment examination; and (4) if the player suffered a severe traumatic brain injury or stroke unrelated to NFL play.
To collect from the Fund, a class member must register with the claims administrator within 180 days of receiving notice that the settlement has been approved. This deadline can be excused for good cause. The class member then must submit a claims package to the administrator no later than two years after the date of the Qualifying Diagnosis or within' two years after the supplemental notice is posted on the settlement website, whichever is later. This deadline can be excused for substantial hardship. The claims package must include a certification by the diagnosing physician and supporting medical records. The claims administrator will notify the class member within 60 days if he is entitled to an award. The class member, class counsel, and the NFL hаve the right to appeal an award determination. To do so, a class member must submit a $1,000 fee, which is refunded if the appeal is successful and can be waived for financial hardship. A fee is not required for the NFL and class counsel to appeal, though the NFL must act in good faith when appealing award determinations.
The Monetary Award Fund is uncapped and will remain in place for 65 years. Every retired player who timely registers and qualifies during the lifespan of the settlement will receive an award. If, after receiving an initial award, a retired player receives a more serious Qualifying Diagnosis, he may receive a supplemental award.
2. Baseline Assessment Program
Any retired player who has played at least half of an eligible season can receive a baseline assessment examination. It consists of a neurological examination performed by eredentialed and licensed physicians selected by a court-appointed administrator. Qualified providers may diagnose retired players with Level 1, 1.5, or 2 Neurocognitive Impairment. The results of the examinations can also be compared with any future tests to determine whether a retired player’s cognitive abilities have deteriorated.
Baseline Assessment Program funds will also provide Baseline Assessment Program Supplemental Benefits. Retired players diagnosed with Level 1 Neurocognitive Impairment — evidencing some objective decline in cognitive function but not yet early dementia — are eligible to receive medical benefits, including further. testing, treatment, counseling, and, pharmaceutical coverage.
3. Education Fund.
The Education Fund is a $10 million fund to promote safety and injury prevention in football. The purpose is to promote safety-related initiatives in youth football and educate retired players about their medical and disability benefits under the CBA. Class counsel and the NFL, with input from the retired players,, will propose specific educational initiatives for the District Court’s approval.
k. The Proposed Class
All living NFL football players who retired from playing professional football before July 7, 2014, as well as their representative claimants and derivative claimants, comprise the proposed class. Representative claimants are those duly authorized by law to assert the claims of deceased, legally incapacitated, or incompetent retired players. Derivative claimants are those, such as parents, spouses, or dependent children, who have some legal right to the income of retired players. Even though the proposed class consists of more than just retired players, we use the terms “class members” and “retired players” interchangeably.
The proposed class contains two subclasses based on a retired players’ injuries as of the preliminary approval date. Subclass 1 consists of retired players who were not diagnosed with a Qualifying Diagnosis prior to July 7, 2014, and their representative and dérivative claimants. Put another way, subclass 1 includes retired players who have no currently known injuries that would be compensated under the settlement. Subclass 2 consists of retired players who were diagnosed with a Qualifying Diagnosis prior to July 7, 2014, and their representative, claimants and derivativе' claimants. Translated, subclass 2 includes retired players Who are currently injured and will receive an immediate monetary award under the settlement. The NFL estimátes that the total population of retired players is 21,070. Of this, 28% are expected to be diagnosed with a compensa-ble disease. The remaining 72% are not expected to develop a compensable disease during .their lifetime.-
Class members-release all claims and actions against the NFL “arising out of, or relating to, head, brain and/or cognitive injury, as well as any injuries arising out of, or relating to, concussions and/or sub-concussive events,” including claims relating to GTE. The releases do not compromise the. benefits that retired players are entitled to receive under the CBAs, nor do they compromise their retirement benefits, disability benefits, and health insurance.
Of the over 20,000 estimated class members (the NFL states that the number exceeds 21,000), 234 initially asked to opt out from the settlement and 205 class ■members joined .83 written objections submitted to the District Court. Before the fairness hearing, 26 of the 234 opt-outs sought readmission to.the class. After the District Court granted final approval, another 6 opt-outs sought readmission. This leaves 202 current opt-outs, of. which class counsel notes only 169 were timely filed.
III. JURISDICTION & STANDARD OF REVIEW
The District Court had jurisdiction over this class action settlement under 28
We review the decision to certify a class and approve a classwide settlement for abuse of discretion.
In re Blood Reagents Antitrust Litig.,
This appeal principally presents two questions — whether the District Court abused its discretion .(1) in certifying the class of retired ■ NFL players and (2) in concluding that the terms of the settlement were fair, reasonable, and adequate. Objectors (95 in all) have filed 11 separate briefs totaling some 500 pages addressing these questions. We address each of these arguments, but refer to objectors collectively throughout our opinion rather than cross-referencing particular objectors -with particular arguments.
IV. CLASS CERTIFICATION
Rule 23(a) lays out four threshold requirements for certification of a class action: (1) numerosity; (2) commonality; (3)typicality; and (4) adequacy of representation. Fed.R.Civ.P. 23(a). “The parties seeking class certification bear the burden of establishing by a preponderance of the evidence that the requirements of Rule 23(a) have been met.”
In re Cmty. Bank of N. Virginia Mortg. Lending Practices Litig.,
A., Numerosity
Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1): There is no magic number of class members needed for a suit to proceed as a class action. We have set a rough guidepost in our precedents, however, and stated that numerosity is generally satisfied if there are more than 40 class members.
Marcus v. BMW of N. Am., LLC,
B. Commonality
“A putative class satisfies Rule 23(a)’s Commonality requirement if the named plaintiffs share at least one question of fact or law with the grievances of
The District Court concluded that “critical factual questions” were common to all class members, including “whether the NFL Parties knew and suppressed information about the risks of concussive hits, as well as causation questions about whether concussive hits increase the likelihood that [rjetired [pjlayers will-develop conditions that lead to Qualifying Diagnoses.”
In re Nat’l Football League Players’ Concussion Injury Litig.,
Some objectors argue that commonality was lacking. Citing the Supreme Court’s decision in Wal-Mart, they contend that the retired players do not share common issues of fact or law because they were injured in different ways and over different periods of time. For example, the claims of a lineman who played fifteen .seasons in the NFL, so goes the argument, will share little in common with those of. a back-up quarterback who played two seasons.
These objections miss the mark. In
Wal-Mart,
the Supreme Court 'held that commonality was lacking when a putative class of 1.5 million female employees alleged sex discrimination by their local supеrvisors.
The concerns in
Wal-Mart
do not apply héró because' the NFL Parties' allegedly injured retired players through the same course of conduct.
See In re Cmty. Bank,
C. Typicality
Rule 23(a)(3) requires that the class representatives’ claims be “typical of the claims ... of the class.” Fed:R.Civ.P. 23(a)(3). This “ensures the interests of.
The . class representatives, Shawn Wooden and Kevin Turner, were named in the class action complaint and were selected by class counsel.
5
Wooden is a retired player with no Qualifying Diagnosis. Like other retired players without , a current diagnosis, he sought a baseline assessment examination to determine whether he. had shown signs of cognitive decline and, in the unfortunate event that he developed one of the Qualifying Diagnoses, he would seek a monetary award. Turner was a -retired player living with ALS.
6
Like other retired players with currently known injuries, he sought a monetary award. The District Court concluded that the claims of Wooden and Turner were “typical of those they represent.”
In re Nat’l Football League Players’ Concussion Injury Litig,,
Some objectors argue that the claims of the class representatives are not typical because of factual differences between the representatives and other class members’, including the number of seasons played and injuries caused by head trauma. But class members néed not “share identical claims,” and" “cases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the varying fact patterns underlying the individual claims.”
Baby Neal,
D. Adequacy of Representation
Rule 23(a)(4) requires class representatives to “fairly and adequately protect the interests of the. class;” Fed.R.Civ.P. 23(a)(4). It tests the qualifications of class counsel and the cldss representatives. It also aims to- root out conflicts of interest within the class to ensure that all class members are fairly represented in the negotiations. ' Several objectors challenge the Distriсt Court’s adequacy-of-representation finding, but we conclude that- it was not an abuse of discretion.
When examining settlement classes, we “have emphasized the special need to assure that class counsel: (1) possessed adequate experience; (2) vigorously prosecuted the action; ■ and (8) acted at arm’s length from the defendant.”
In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig.,
When class counsel and the NFL began mediation, there was only one proposed class of all retired players. Class counsel, in consultation with members of the Steering Committee and the Executive Committee, decided early in the negotiations that creating' two separate subclasses “would best serve all [c]lass [m]embers’ interests and meet with Due Process.” To that end, class counsel designated lawyers from the Steering Committee to serve as sübclass counsel.
in its final certification and approval order, the District Court found that class counsel and subclass counsel were experienced in litigating mass torts and personal injury actions,- vigorously prosecuted the action at arm’s length from the NFL, and were able to extract substantial concessions in the process.
In re Nat'l Football League Players’ Concussion Injury. Litig.,
Objectors first assert that the procedure for selecting subclass counsel did nob ensure adequate representation because subclass counsel came from the team of lawyers already negotiating with the NFL. We agree that class counsel could have gone to' the District Court and asked it to appoint counsel from the outside. Yet objectors point us to no precedent requiring such a procedure. Moreover, the District Court assured itself that counsel were adequate representatives. They were selected early in the negotiations, had- already been approved by the District Court to serve on the Steering Committee, and were by all accounts active participants in the settlement negotiations. In-these circumstances,- the District Court did -not abuse its discretion in accepting subclass counsel as adequate representatives.
Objectors next press that the subclass counsel for future claimants, Arnold Levin, was-not'an adequate representative, as he represented nine players who alleged current symptoms-in two lawsuits against the NFL. Levin disclosed to the District Court in an application for the1 Steering Committee-that he has agreed to fees in these cases on a one-third contingency basis. Objectors argue to- us that Levin’s representation of these players-created a conflict with his duties to represent the subclass of retired players with no Qualifying Diagnoses. Yet objectors, failed to. raise this contention in the District Court and did not meaningfully assert it on appeal until their reply brief.
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If they had
That said, some courts have relaxed the standards for waiver in class actions. See, e.g., In re Sw. Airlines Voucher Litig., 799 F.3d 701, 714 (7th Cir.2015) (“Class members were not obliged, on penalty of waiver, to search on their own for- a conflict of interest on the part of a class representative.”); We agree that the . usual waiver rules should not be applied mechanically in class actions. We have an independent obligation to protect the interests of the class, and in many instances class members are far removed from the litigation and lack the information and incentive to objéct. See GM Trucks, 55 F.3d at 784 (“[T]he court plays the important role of protector of the absentees’ interests, in a sort of fiduciary capacity, by approving appropriate representative •■plaintiffs and class counsel.”). Accordingly, we retain discretion to consider arguments that go to the heart of the class- settlement’s adequacy and fairness. Out of .caution, we. decline - to apply' the penalty of waiver in this instance.
Turning to the merits, we do not' See How representation by Levin created a Conflict of interest. He disclosed his representation of the players to the District Court, and it was still satisfied that he was an adequate representative. Beyond this, there is no evidence in the record before us that the players named in the complaints have a current Qualifying Diagnosis. Rather, they simply allege current symptoms that are not themselves Qualifying Diagnoses,. including memory loss, headaches-, mood'swings, and sensitivity to light. Many,'players without a current Qualifying Diagnosis presumably have similar symptoms. Accordingly, this is not a situation where ■ subclass counsel has dients in both subclasses and there is a risk of a conflict.
2. Class Representatives
A class representative must represent a class capably and diligently. “[A] minimal .degree of knowledge” about the litigation is adequate.
New Directions Treatment Servs. v. City of Reading,
Some objectors argue that the Court abused its discretion in approving Wooden as representative for the subclass of players with no Qualifying Diagnoses because he did not claim-'the risk of developing CTE.;This is- incorrect. In the Class Action Complaint Wooden alleged that he is “at increased risk of latent brain injuries caused by ... repeated traumatic "head
3. Conflicts of Interest
“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and . the class they seek to .represent.”
Amchem Prods., Inc. v. Windsor,
A recurring fundamental conflict is the divide between" present and future injury plaintiffs identified in
Amchem.
Counsel in that case sought to approve a class settlement and certify a nationwide class of persons — numbering between 250,000 and 2,000,000 — who shared an unfortunate fact in common: they were all exposed to asbestos-containing products . manufactured by 20 companies.
Georgine v. Amchem Prods., Inc.,
As rational actors, those who are not yet injured would want, reduced current payouts (through cap? on compensation awards and limits on the number of claims that can be paid each year). The futures plaintiffs should also be interested in protection against inflation, in not having preset limits on how many cases can be handled, and in limiting the ability of defendant companies to exit the settlement. Moreover,, in terms of the structure of the alternative dispute resolution mechanism established by the settlement, they should desire causation provisions that can keep pace with changing science and medicine,, rather than freezing in place' the science of 1993. Finally, because of the difficulty in forecasting what their futures hold, they would probably desire a delayed opt out-
In contrast, those who are currently injured would rationally want to maximizeсurrent payouts. Furthermore, currently injured plaintiffs would care little about inflation-protection. The delayed opt out desired by futures .plaintiffs would also be of little interest to the presently injured; indeed, their interests are against such an opt out as the more people locked into the settlement, the more likely it is to survive. In sum, presently injured class representatives cannot adequately represent the futures plaintiffs’ interests and vice versa.
Id.
at 630-31 (internal footnote omitted). The Supreme Court affirmed on this point and agreed that “the interests of those within the single class are not aligned.”
Amchem,
To overcome a conflict of interest within a proposed class, there must be “structural protections to assure that differently situáted ■ plaintiffs negotiate for their own unique interests.”
Georgine,
The District Court found no fundamental conflict of interest in this class.
In re Nat’l Football League Players’ Concussion Injury Litig.,
The Court’s analysis was on point. Some objectors argue that this class action suffers from a conflict of interest between present and future injury plaintiffs. But simply put, this case is. not Amchem. The most important distinction is that class counsel here took Amchem into account by using the subclass structure to protect the sometimes divergent interests of the retired players. The subclasses were represented in the negotiations by separate class representatives with separate counsel, and, as discussed, each was an .adequate representative. This alone is a significant structural protection for the class that weighs in favor of finding adequacy.
Finally, one of the principal concerns driving Amchem’s strict analysis of adequacy of representation was the worry that persons with a nebulous risk of developing injuries would have little or no reason to protect their rights and interests in the settlement. We have evidence that in this case the concern is misplaced because many retired players with no currently compensable.injuries have already taken significant steps to protect their rights and interests. Of the 5,000 players who sued the NFL in the MDL proceedings, class counsel estimated that 3,900 have no current Qualifying Diagnosis. These 3,900 players are represented, in turn, by approximately 300 lawyers. And with so many sets of eyes reviewing the terms of the settlement, the overwhelming majority of retired players elected to stay in the class and benefit from the settlement. We thus have little problem saying that their interests were adequately represented.
Objectors further claim that the settlement’s treatment of -CTE demonstrates a fundamental conflict of interest between present and future injury class members. Under the settlement, retired players who died before final approval of the settlement and received a post-mortem CTE diagnosis are entitled to an' award. For any player who died after final approval, a post-mortem- CTE diagnosis is not com-pensable. Objectors cite this difference in recovery 'as evidence that the subclass of players with a Qualifying Diagnosis may have bargained away the CTE claims of other'players.
GM Trucks,
This argument misunderstands the role of the monetary award for CTE. As the District Court noted in discussing the fairness of the settlement, the monetary award “serves .as a proxy for Qualifying Diagnoses deceased [r]etired [p]layers
could
have received while living.”
In re Nat’l Football League Players’ Concussion Injury Litig.,
E. Predominance
Turning to the additional requirements for certifying a class action under Rule 23(b)(3), the class may be maintained if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members.” .Fed. R.Civ.P. 23(b)(3). Predominance “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.”
Amchem,
The District Court found that this class action presented predominate factual questions regarding the NFL’s knowledge and conduct as well as common scientific questions regarding cаusation. In re Nat’l Football League Players’ Concussion Injury Litig., 307 F.R.D. at. 380-81. The negligence claims “depend on establishing that the NFL'... knew of the dangers of concussive hits, yet failed to modify. the rules of NFL Football to mitigate them, or even to warn1 [r]etired [p]layers that they were risking serious cognitive injury by continuing to play.” Id. at 380. The fraud claims “suggest a similarly1 far-reaching scheme, alleging that the ... MTBI Committee repeatedly obfuscated the link between football play and head trauma.” Id. We agree with the District Court that predominance is satisfied in this case.
Objectors argue that damage claims in a mass-tort class action such as this are too individualized to satisfy the requirements of predominance. They cite to
Amchem
where, as we have discussed, a nationwide class of persons exposed to asbestos could not meet the predominance requirement.
,F. .Superiority
Rule 23(b)(3)’s "Superiority requirement “asks the court to balance, in terms of fairness and efficiency, the merits of a class action against those of alternative available methods of adjudication.”
Warfarin,
No objectors challenge. this conclusion, and we have no disagreements with the District Court’s analysis. At the time the settlement was reached, 5,000 players had filed over 300 lawsuits in the MDL. Assuming the retired players’ claims survived the NFL’s motions to dismiss, the resolution of so many individual lawsuits would have presented serious challenges for the District Court. Given our experience with similar MDLs, 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.
y. CLASS NOTICE
When ,the District Court preliminarily certified the class and approved the settlement in July 2014, it directed that notice be given to all potential class members. Notice “is designed to summarize the litigation and the settlement and to apprise class, members of the right and opportunity to inspect the complete settlement documents, papers, and pleadings filed in the litigation.”
Prudential,
In our case, the notice informed retired’ players that a settlement was reached and explained what relief the players might be eligible for. The notice also outlined the rights of players to object.to the settlement arid potentially opt out. If a retired player chose to opt out, he would not benefit from the settlement but would not release his claims against the NFL. Approximately 1% of retired players filed objections to the settlement, and another 1% elected to oрt out. 11
For a class certified under Rule 23(b)(3), “the court must direct to class members the best notice that is practicable under the' circumstances, including individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). In addition to the requirements of Rule 23, due process further requires that notice be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”
Mullane v. Cent. Hanover Bank & Trust Co.,
The District Court found that the content of the class notice and its distribution to the class satisfied Rule 23 and due process.
In re Nat’l Football League Players’ Concussion Injury Litig.,
VI. CLASS SETTLEMENT
A class action cannot be settled without court approval based on a determination that the proposed settlement is fair, reasonable, and adequate. Fed.R.Civ.P. 23(e)(2). The inquiry into the settlement’s fairness under Rule 23(e) “protects unnamed class members from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise.”
Amchem,
“The decision of whether to aрprove a proposed settlement of a class action is left to the sound discretion of the district court.”
Prudential,
A. Presumption of Fairness
We apply an initial presumption of fairness in reviewing a class settlement when: “(1) the negotiations’occurred at arms length; (2) there was sufficient discovery; (3) the proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of the class objected.”
Cendant,
By the time of the settlement, class counsel had undertaken significant informal discovery. For instance, they had obtained a comprehensive database of the claims and ’symptoms of retired players and had enlisted the assistance of medical experts. They also had a grasp of the legal hurdles that the retired players would need to clear in order to succeed on their fraud and negligence claims, in particular the potentially dispositive issuе of federal labor law preemption. Thus, in negotiations with the NFL class counsel “weré aware of the strengths and weaknesses of their case.”
In re Nat'l Football League Players’ Concussion Injury Litig.,
B. Girsh & Prudential Factors
In Girsh v. Jepson, we noted nine factors to be considered when determining the fairness of a proposed settlement:
(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the , stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class .action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.
Later, in Prudential Insurance we held that, because of a “sea-change in the nature of class actions,” it might be useful to expand the Girsh factors to include several permissive and non-exhaustive factors:
[1] the maturity , of the underlying substantive issues, as measured by experience in .adjudicating individual actions, the development of scientific knowlеdge, '. the extent of discovery on the merits, and other factors that bear on the ability to assess the probable outcome of a trial . on the merits of liability and individual damages; [2] the existence and probable outcome of claims by other classes and - subclasses; [3] the comparison between the results achieved by the settlement " for individual class or subclass members . and the results achieved — or likely to be 1 achieved — for other ' claimants; [4] whether class or subclass members are accorded the right to opt out of the ■settlement; [5] whether any provisions for attorneys’ fees are reasonable; and -[6] whether the procedure for processing individual claims under the settlement is ■ fair and reasonable.
The District Court in our case went through the
Girsh
factors and the relevant
Prudential
factors in great detail before concluding that the terms of the settlement were fair, reasonable, and adequate.
In re Nat’l Football League Players’ Concussion Injury Litig.,
1. Complexity, Expense, and Likely Duration of the Litigation
“The first factor ‘captures the probable costs, in both time and money, of continued litigation.’ ”
Warfarin,
2. Reaction of the Class to the Settlement
“The second
Girsh
factor ‘attempts to gauge whether members of the class support the séttlement.’ ”
Warfarin,
Some note that the percentage of objectors was even lower in
GM Trucks,
a case where wé declined to approve a settlement. There, “[o]f approximately '5.7 million class'members, 6,450 owners objected and 5,203 opted out.”
GM Trucks,
S. ■ Stage of the Proceedings and Amount of Discovery Completed
“The third
Girsh
factor ‘captures the degree of case development that class counsel [had] accomplished prior to settlement. Through this lens, courts" can ■ determine whether counsel had an adequate appreciation of the merits of the case be
The District Court concluded that class counsel adequately evaluated the merits of the preemption and causation issues through informal discovery, and, after ten months of settlement negotiations, the stage of the proceedings weighed in favor of settlement approval.
In re Nat’l Football League Players’ Concussion Injury Litig.,
4. Risks of Establishing Liability and Damages
“The' fourth and fifth
Giréh
factors survey the possible risks of litigation in order to balance the‘likelihood of success and the potential damage award if the case were taken to trial against the benefits of an immediate settlement.”
Prudential,
To start, if the NFL were to prevail in its motion .to dismiss on the issue of federal labor law preemption, “many, if not all,” of the class members’ claims would be dismissed. * Id. Objectors claim the District Court misjudged the risks of establishing liability and damages on this front. They argue that the NFL’s preemption defense would not apply to all class members because there were no CBAs in effect before 1968 and between 1987 and 1993. But even if there were a small subset of players unaffected by the preemption .defense, the defense still had the capability of denying relief to the majority of class members and this weighs in favor of approving the settlement. ,
As for causation, .the District Court noted that retired players would need to show both general causation (that repetitive head trauma is. capable of causing ALS, Alzheimer’s, and. the like), and specific causation (that the brain trauma suffered by a particular player in fact caused his specific impairments).
In re Nat’l Football League Players’ Concussion Injury Litig.,
5.Bisks of Maintaining Class Action Through Trial
The District Court found that the likelihood of obtaining and keeping a class certification if the action were to proceed to trial weighed in favor of approving the settlement, but it deserved only minimal consideration.
Id.
at 394. This was correct. In a settlement class, this factor becomes essentially “toothless” because “ ‘a district court need not inquire whether the case, if tried, would present intractable management problems[,] ... for the proposal is that there be no trial.’ ”
Prudential,
6.Ability of Defendants to Withstand a Greater Judgment
The seventh
Girsh
factor is most relevant when the defendant’s professed inability to pay is used to justify the ¿mount of the settlement. In the case of the NFL, the District Court found this factor neutral because the NFL did not cite potential financial instability as justification for the settlement’s size.
In re Nat’l Football League Players’ Concussion Injury Litig.,
Some-objectors complain that the settlement, which may cost the NFL $1 billion over its lifetime, represents a “fraction- of one year’s revenues.” Even so, that does not change the analysis of this
Girsh
factor-. -Indeed, “ ‘in any class action against a large- corporation, the defendant entity is likely to be able to withstand a more substantial judgment, and, against the weight of the remaining factors, this fact alone does not undermine the reasonableness of the ... settlement.’ ”
Sullivan,
7.. Range of Reasonableness of the Settlement in Light of the Best Possible Recovery and All Attendant Risks of Litigation
In evaluating the eighth and ninth
Girsh
factors, we ask “whether the settlement represеnts a good value for a weak case or a poor value for a strong case.”
Warfarin,
If the retired players were successful in their fraud and negligence claims, they would likely be entitled to substantial damages awards. But we must take seriously the litigation risks inherent in pressing forward with the case. The NFL’s pending motion to dismiss and other available affirmative defenses could have left -retired players to. pursue claims in arbitration or -with no recovery at all. Hence we agree with the District Court that the settlement represents a fair deal for the class when compared with a risk-adjusted estimate of the value of plaintiffs’ claims.
In re Nat’l Football League Players’ Concussion Injury Litig.,
Objectors claim that the District Court should have taken into account the costs to class members of the registration and claims administration process because they decrease the “real value” for.the class.
8, Prudential Factors
The District Court found that the relevant Prudential factors also weighed in favor of approving the settlement. Id. at 395-96. No objectors engage with the Court’s findings on this front. But briefly, we agree that class counsel was able to assess the probable outcome of this case, class members had the opportunity to opt out, and the claims process is reasonable. The provision of attorneys’ fees was a neutral factor becаuse class counsel has not yet moved for a fee award.
C. Settlement’s Treatment óf CTE
Objectors raise other arguments about the fairness of the settlement that do not necessarily fall neatly withm one of the Girsh factors. The most common of those arguments is that the exclusion of CTE as a Qualifying Diagnosis for future claimants is unfair. Objectors note that CTE, the “industrial disease of football,” was at the center of the first concussion lawsuits and argue that claims for CTE compensation are released by the settlement in return for nothing. The District Court carefully considered this argument before deciding that the settlement’s treatment of CTE was reasonable. It made detailed factual findings about the state of medical science regarding CTE — findings that we review for clear error — in support of this conclusion.
The Court first ■ determined that “[t]he study of CTE is nascent,, and the symptoms of the disease, if any,-are. unknown.” Id. at 397. Surveying the available medical literature,. it found that researchers have not “reliably' determined which events make a person more likely to develop CTE” and “have not determined what symptoms individuals -with CTE typically suffer from while they are alive.” Id. at 398. At the time of the Court’s decision, only about. 200 brains with CTE had been examined, and the only way currently to diagnose CTE-is a post-mortem examination of the subject’s brain. ,Id.
-Citing studies by Dr. Ann McKee and Dr. Robert Stern, objectors argued that CTE progresses in four stages. In Stages I and; II, the disease affects mood and behavior-while leaving a retired player’s cognitive functions -largely intact. Headaches, aggression, -.depression, explosive outbursts, and suicidal thoughts, are common. Later in life, as a retired player progresses to Stages III and IV, severe memory loss, dementia, loss of attention and concentration, and impairment of language begin to occur. The District Court explained, however, that these studies suffer from several limitations and cannot generate “[p]redictive, generalizable conclusions” about CTE. Id. at 399. The studies suffered from a selection bias because they, only examined patients with a history of repetitive head injury. They had to rely on reports by family members to reconstruct the symptoms patients showed before death. And they did not take into account other potential risk factors for developing CTE, including a high Body Mass Index (“BMI”), lifestyle change, age, chronic pain, or substance abuse. Id. at 398-99.
To be suré, the mood and behavioral symptoms associated with' CTE (aggression, depression, and suicidal thoughts) are not compensated, but thfc result was reasonable. Mood and behavioral symptoms are common in the general population and have multifaetor causation and many other risk factors: ■ Id. ■ at 401. • Retired players tend to' have many of these risk factors, such as sleep apnea, a history of drug and alcohol abüse, a high BMI, chronic pain, and major lifestyle changes. Id. Class members would thus “face more difficulty proving'that NFL Football caused these mood and behavioral symptoms than they would proving that it caused other- symptoms associated with Qualifying Diagnoses.” Id.
The District Court also reviewed thé monetary award for post-mortem diagnoses of CTE. It found “[sjound reasons” for limiting the award to playеrs who died before final approval of the settlement. Id. As we have summarized elsewhere, this compensation for deceased players is a proxy for Qualifying Diagnoses a retired player could have received while living. After final approval, players “should be well aware of the [settlement and the need to obtain Qualifying Diagnoses,” and “there no longer is a need for Death with CTE to serve as a proxy for Qualifying Diagnoses.” Id. at 402.
Finally, the Court addressed the potential development of scientific and medical knowledge of CTE. Objectors argued that the settlement’s treatment of CTE was unreasonable in light of the expected developments in CTE research. But even if a diagnosis of CTE during life will be available in the next five or ten years, “the longitudinal epidemiological studies necessary to build a robust clinical profile will still take a considerable amount of time.” Id. The Court aiso noted that the settlement has some mechanism for keeping pace with science, in that the parties must meet and confer every ten years in good faith about possible modifications to the definitions of Qualifying Diagnoses. Id. at 4Ó3.
Objectors have not shown any of the District Court’s findings to be clearly erroneous, which exists when, “although there is evidence to support [the finding], the reviewing court, based on'the entire evidence, concludes with firm conviction that a mistake has been made.” GM Trucks, 55 F.3d at 783. Objectors argue that the Court overlooked certain expert evidence, but the record does not support this contention. They also complain that it failed to weigh the credibility of the different experts when the objectors’■ experts were not paid for- their services. We do not see how the Court could have made a proper credibility determination on the basis of written declarations alone, and, in any event, wе have never required those determinations when considering the fairness of a settlement.
Others claim that the expert evidence on CTE should have been analyzed under
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
Finding no clear errors in the District Court’s findings on CTE, we are also convinced that the Court was well within its discretion in concluding that the settlement’s treatment of this condition was reasonable. Most importantly, objectors are not correct when they assert that CTE claims are released by the settlement in return for “nothing.” A primary purpose of the settlement is to provide insurance for living players who develop certain neu-rocognitive or neuromuscular impairments linked to repetitive head- trauma (in- addition to the benefits provided by the Baseline Assessment Program). Given what we know about CTE, many of the symptoms associated with the disease will be covered by this insurance. And compensation for players who are coping with these symptoms now is surely preferable to waiting until'they die to pay their estates for a CTE diagnosis. Moreover, we agree with the District Court that it would be an uphill battle to compensate for the mood and behavioral symptoms thought to be associated with CTE.
Before concluding, we address developments during the pendency of this appeal. In a March 2016 roundtable discussion, on concussions organized by the House Energy & Commerce Subcommittee on Oversight & Investigations-, the .NFL’s Executive Vice President cited the research of Dr. McKee and agreed that there was a link between1 football and degenerative brain disorders like CTE. ■ The NFL’s statement is an important development because it is the first time, as far as we can tell, that the NFL has publicly acknowledged a connection between, football and CTE. On the other hand, the NFL is now conceding something already known. The sheer number of deceased players with a post-mortem diagnosis of CTE supports the unavoidable conclusion that there is a relationship, if not a causal connection, between a life in football and CTE.
Objectors cite the NFL’s concession as further evidence that this settlement should be rejected. They argue that the NFL has now admitted there is a link between football and CTE, yet refused to compensate the disease. Again, we note that the settlement does compensate many of the impairments associated with CTE, though it does not compensate CTE as a diagnosis (with the exception of players who died before final approval of the settlement).' Moreover, even if the NFL has finally come around to the view that there is a' link between CTE and football,' many more questions must be answered before we could say that the failure to compensate the diagnosis was unreasonable. For example, we still cannot reliably determine the prevalence, symptoms, or risk factors of' CTE. The NFL’s recent acknowledgment may very well advance the public discussion of the risks of contact sports, but it did not advance the science. Accordingly, the NFL’s statement is not a ground for . reversal of the settlement’s approval.
VII. ATTORNEYS’ FEES
Class counsel and, the NFL did not negotiate the issue of fees until after the initial term sheet was signed. After negotiations, the NFL agreed not to contest any award of, attorneys’ fees and costs up to $112.5 million. Any-fee award will -be separate from the NFL’s obligations under the settlement -to pay monetary awards to the retired players. Class counsel. may also petition the District Court to set aside 5% of each monetary award to administer the settlement. The petition for a fee award will be submitted to the Court at a later date. Objectors will then be able to present arguments as to why the requested award is improper, and the Court will have discretion to. modify, the award in whatever-way it sees fit. Even though the issue of attorneys’ fees remains undecided, some object that the settlеment’s treatment of fees is a reason for reversal.
A. Deferral of Fee Petition
Objectors first argue that the District Court abused its discretion in approving the procedure for attorneys’ fees. As noted, class counsel will request a fee award after the class action is certified and the class settlement is approved. Objectors claim that the “attorney-fee-deferral procedure” violated Federal Rule of Civil Procedure Rule 23(h) and deprived class members1 of due process. We note at the outset that objectors failed to present most of the elements of this argument to the Court at the final fairness hearing. The closest anyone came was when amicus Public Citizen,- Inc. claimed that the absence of a fee petition “prevents a complete evaluation of the fairness of the settlement at this point.” In response, the Court noted that interested parties would have an opportunity to object to the fee petition when filed and that the separation of settlement approval from fee approval was an “accepted approach.”
In re Nat’l
As discussed elsewhere, the standards for waiver may be relaxed somewhat -in the class action context because we have -an independent obligation to protect, the rights of absent class members. Applying this principle, we will reach the objections concerning attorneys’ fees because,- if the objections are persuasive, class members were denied a meaningful chance to object or opt out from the settlement. Our review, however, confirms that the procedure for awarding fees in this settlement was neither an unlawful procedure nor an obstacle to approval. - We have no doubt that, at the specified time, class counsel’s fee petition will be subject to careful review by the District Court and objectors will present challenges to the fee petition if warranted.
To start, the practice of deferring consideration of a fee award is not so' irregular. We have seen the same arrangement in' the settlement of a products liability class action related to diet drugs.
In re Diet Drugs Prods. Liab. Litig.,
Moreover, the separation of á fee award from final approval of the settlement does not violate Rule 23(h), which allows a court to award reasonable attorneys’- fees and costs in a -certified class action subject to certain requirements. Nowhere does the provision- require that class counsel move for its fee award at the same time that it moves for final approval of the settlement.Under the Rule, a. fee. petition must be made by motion seryed on. all parties and, when the motion is made by class counsel, notice must .be “directed to class members in a reasonable manner.” Fed.R.Civ.P. 23(h)(1). Class members may then object and the court may hold a hearing. Fed. R.Civ.P. 23(h)(2)-(3). . And the court “must find the facts and state its legal conclusions” and “may refer issues related to the amount of the award to a special, master.” Fed.R.Civ.P. 23(h)(3)-(4). . So long' as these conditions are met, the procedure for awarding attorneys’ fees that, the District Court approved in this case will not run afoul of subsection (h),
Objectors point us to the Advisory Committee Notes to Rule 23, which seem to contemplate combining class notice of the fee petition with notice of the -terms of the settlement. Fed.R.Civ.P. 23(h)(1), 2003 advisory committee’s note (“For motions by class counsel in cases subject to court review' of a proposed settlement under Rule 23(é), it would be important to require the filing of at least the initial motion in time for inclusion of information about the motion in the notice to the class about the proposed settlement that is required by Rulé 23(e).”) & -(“In cases in which settlement approval is contemplated under Rule 23(e), notice-of class counsel’s fee motion should be combined with notice of the proposed settlement, and the provision regarding notice to the class is parallel to the requirements fon notice under Rule 23(e).”);
see also Newberg on Class Actions
§ 8.24 (5th ed.) (Rule 23 envisions “linking together settlement notice and objections with fee notices and objections”). But even if we were willing to read the Advisory Committee’s suggestion that fee petitions be filed alongside the settlement
Objectors also cite as support two cases from other circuits that found a violation of Rule 23(h).
See Redman v. RadioShack Corp.,
The final argument raised by objectors on this point is - that the decision to delay ruling on the fee award deprived class members of due process. As we discussed in evaluating classwide notice, constitutional due process requires that notice be “reasonably calculated, under all the circumstances, to ■ apprise interested parties of the pendency of the action and afford them an opportunity to present- their objections.”
Mullane,
The class notice here was sufficient to comply with due process. The notice advised that the NFL would pay attorneys’ fees from a separate, fund and not object to an award up to $112.5 million and that the District Court, would consider fees after final approval and afford retired players an opportunity to object. From this, class members knew from where the fees for class counsel were ■ coming (a separate fund), what the NFL’s position on fees wbuld be (no -objection up to $112.5 million),- and could ballpark the size of class counsel’s eventual fee request (a betting person would say it will be close to $112.5 million). ■ Even if the class members were missing certain information — for example, the number of hours class counsel worked and the. terms of any contingency fee arrangements class counsel have with particular retired players — -they still had enough information to,.make an informed decision about whether to object to or opt out from the settlement.
To be sure, we are sympathetic to concerns that оthers have raised over the practice of delaying consideration of a fee motion.. As one treatise put it,
[a] primary concern about class action settlements - is that unmonitored class 'counsel may have incentives to sell out - the class’s interests in return for a large fee. To assess whether such a sell-out has-occurred, class members need information. both about the content of the 'settlement and about the scope of the fee. In this sense, fee notice not only may accompany settlement notice; it likely should accompany settlement notice.
Newberg on Class Actions
§. 8:22 (5th ed.) (emphases in original). Delaying the fee petition denies-class members information
B. Clear Sailing Provision
Objectors next challenge the provision in the settlement agreement .that the NFL would not object to a fee award up to $112.5 million. This is often referred, to as a “clear sailing provision” (probably because the implication is that the fee request stands a much better chance of court approval if the defendant is not objecting). The concern with a clear sailing provision is collusion. The defendant is indifferent to the allocation of its liability between the. class and counsel; all that matters is the total liability. To forgo the opportunity to object to the fee award, the defendant will presumably want something in return because it is giving up the chance to reduce its overall liability. We thus might fear that class counsel has given away something of value to the class in return for the defendant’s agreement not to contest a fee request below a certain level.
Despite these concerns, “numerous cases ... have approved agreements containing such clear-sailing clauses.”
In re Oil Spill by Oil Rig Deepwater Horizon,
The District Court here found the clear sailing provision unobjectionable. It emphasized that the issue of fees was not discussed until after the principal terms of the settlement were agreed to, the fee award will not diminish class recovery, and the agreed amount is just over 10% of the estimated class recovery.
In re Nat’l Football League Players’ Concussion Injury Litig.,
VIII. CONCLUSION
It is the nature of a settlement that some will be dissatisfied with the ultimate result. Our case is no different, and we do not doubt that objectors are well-intentioned in making thoughtful arguments against certification of the class and approval of this settlement. They aim to ensure that the claims of retired players are not given up in exchange for anything less than a generous settlement agreement negotiated by very able representatives. But they risk making the perfect the enemy of the good. This settlement will provide nearly $1 billion in valué to the class of retired players.- • It is a testament to the players, researchers, and advocates who
In sum, we affirm because we are satisfied that the District Court ably exercised its discretion in certifying the class and approving the settlement.
Notes
. There is also a pending class action against the National Collegiate Athletic Association ("NCAA”) over its handling of head injuries. In January 2016,-the District Court overseeing the action preliminarily certified the class and approved a settlement subject to certain revisions. In re: Nat’l Collegiate Athletic Ass’n Student-Athlete Concussion Injury Litig., No, 13-9116, 314 - F.R.D. 580, 2016 WL -305380 (N.D.Ill. Jan.- 26, 2016).- Under the settlement, the NCAA will pay $70 million to create a medical monitoring fund to screen current and former collegiate athletes for brain trauma. ' 1
. After the NFL removed some of the early concussion-related lawsuits from state courts, several district courts accepted this preemption argument as a basis for denying requests to remand the cases.
See, e.g., Smith v. Nat’l Football League Players Ass’n,
No. 14-1559,
.' Levels 1.5 and '2 Neurocognitive Impairment require a decline in cognitive function and a loss of functional capabilities, such as the ability to hold a job, and correspond with clinical definitions of mild and moderate dementia. "•
. One objector argues that the District Court failed to determine whether it had subject matter jurisdiction over the class action because it never decided the NFL’s motion to dismiss. But the NFL’s motion to dismiss would have no effect on subject matter jurisdiction because the plaintiffs properly alleged jurisdiction based on the diversity of the parties and the amount in controversy. 28 U.S.C. § 1332(d)(2). There was thus no error in declining to decide the motion to dismiss.
. In September 2013, one month after the parties signed the sеttlement term sheet, the initial subclass representative for players with no currently known injuries, Corey Swinson, . passed away. One month later, Wooden took Swinson’s place.
. We note that Kevin Turner passed away on March 24, 2016, Class counsel has moved to substitute as a party Turner’s father, Paul Raymond 'Turner, a motion we will grant. See Fed. R'.App. P. 43(a)(1). For purposes of deciding this appeal, it is unnecessary to substitute a new class member as subclass repre.sentative and we shall continue to refer, to Kevin Turner as the subclass representative in this opinion.
. Alongside the reply brief, objectors also filed a motion asking that we take judicial notice of complaints filed by retired-players where Lev-in was counsel of record,- The motion for
. Objectors also argue in passing that- the other subclass representative, Turner, failed to allege a risk of CTE. This argument fails .for thé same reason that it failed with respeGt to -Wooden — all players are at ■ risk of CTE.
. Amicus Public Citizen, Inc. argues that the District Court should have created additional subclasses to represent each of the five Qualifying Diagnoses, the mood and behavior symptoms associated with CTE, and spouses of retired players with consortium claims. We agree with the District Court that additional subclasses were unnecessary and risked slowing or even halting the settlement negotiations.
In re Nat’l Football League Players’ Concussion Injury Litig.,
. Some objectors claim that the District Court erred in denying their motion to intervene in May 2014. In the class-action context, potential interveners must overcome a presumption of adequate representation and "must ordinarily demonstrate adversity of interest, collusion, or nonfeasance,on the part of a party to the suit.”
In re Cmty. Bank of N. Virginia,
. Some argue that the District Court abused its discretion in striking as untimely certain objections to the settlement. But these actions were within the Court’s broad discretion to manage the proceedings in a class action.
Hydrogen Peroxide,
. Others- argue that we cannot xely on the reaction of the class because the class notice was "problematic.'' They claim that the notice may have misled class members about compensation for those with a post-mortem CTE diagnosis. But the District Court explained that the class notice was clear that only some cases of CTE would be compensated.
In re Nat’l Football League Players’ Concussion Injury Litig.,
. The argument that the settlement’s failure to compensate CTE makes it a poor value for the class we discuss separately below.
. We address a few remaining objections to the District Court’s fairness inquiry. Some claim that the offsets in the' settlement that reduce a player's monetary award were unreasonable. The Court explained why each offset had .scientific support and we are content to say that objectors have not shown its findings to be clearly in error or its conclusions an abuse of discretion.
In re Nat’l Football League Players’ Concussion Injury Litig.,