There are signals that there may be some roadblocks in the proposed
settlement that was unveiled nearly four months ago in the multidistrict concussion litigation against the National Football League.
For one thing, talk has surfaced regarding possible “double dipping” by attorneys who have been representing former professional football players who say the NFL actively withheld information on the long-term health risks associated with concussions players sustained while on the field.
More than 4,500 former players and their respective spouses have been suing the league for close to two years now.
U.S. District Judge Anita Brody, who oversaw the litigation, which had been consolidated in the Eastern District of Pennsylvania, has yet to formally approve the preliminary $765 million settlement, which means she has also yet to weigh in on the issue of legal fees.
On Dec. 16, Brody appointed Perry Golkin as a special master to assist her in evaluating the financial aspects of the proposed settlement, according to the case docket.
The judge wrote in her order that the appointment is warranted by the “expected financial complexity of the proposed settlement.”
Golkin is reportedly investigating allegations of “double dipping” on the part of some plaintiffs’ attorneys, according to Darren Heitner, a partner at Wolfe Law Miami who contributes news articles to Forbes.
In this case, double dipping refers to lawyers getting paid through a common fund set up to compensate them for their work on the litigation, and also through contingency fees with individual player-plaintiffs.
ESPN’s Outside the Lines blog reported this week that the allegation arose when Christopher Seeger, who served as the player-plaintiffs’ lead negotiator in the MDL, attempted to arrange an agreement whereby he would receive 10 percent of any monetary damages awarded to 79-year-old former NFL player Billy Kinard.
Seeger, a lawyer with the firm Seeger Weiss, stands to receive a large portion of the common fund that was created to cover attorneys’ fees in the litigation, Outside the Lines reported.
The fund could reportedly reach $100 million, and is separate money not attached to the $765, which is specifically designated for the injured players.
Outside the Lines reported that Seeger quickly withdrew his proposal for the 10 percent from Kinard after Kindard’s attorney challenged the proposed arrangement.
Seeger, one of a handful of lawyers on an executive committee designed to negotiate with the league, could not be reached for comment.
In the Outside the Lines article, Seeger was quoted as saying that he is not representing any new plaintiffs on a fee arrangement.
“A small number of plaintiffs were mistakenly offered a retainer agreement after approaching Seeger Weiss for representation post-announcement,” Seeger said in a statement provided to the website.
John Banzhaf, III, a professor of public interest law at George Washington University Law School in Washington, D.C., said while Golkin, the special master, was likely appointed due to the double dipping allegations, he could have also been brought aboard to help Brody, the judge, assess other financial issues in the complex litigation.
Banzhaf said if Golkin comes back a couple months down the road with a report critical of the settlement, Brody could be pressured to send back the settlement with instructions that it be revised.
At this point, the settlement could be left intact, delayed or defeated all together, he said.
Banzhaf said contingency fee arrangements, in the traditional sense, are not inherently bad, but this situation is slightly different because there is already a pot of cash being set aside for lawyers who worked on the MDL.
“Generally this is reasonable, fair and often very effective,” Banzhaf, by phone, said on traditional contingency fee situations.
In many cases, the system works out for clients who have little money to spend on lawyers in cases involving, say, a motor vehicle accident or other type of injury, he said.
Under that contingency fee system, a lawyer typically takes about a third of the money recovered by a plaintiff in any given tort case.
But in the high-stakes NFL litigation, the common fund that was set up was designated as the pool from which attorneys are supposed to get paid.
In the Outside the Lines article, Sam Franklin, an attorney representing Kinard, the former player, said that after reviewing the fee agreement he became concerned that Seeger, the attorney on the executive committee, was attempting to take money from his client on top of the money he would get from the common fund.
“That’s what’s wrong: It’s double-dipping, getting paid by the defendant and getting an additional 10 percent by each client you sign up,” Franklin was quoted as saying in the ESPN article. “I’ve never seen anything like this.”
In a letter to Seeger, according to the article, Franklin asked: “On what basis do you believe your firm at this stage can propose an engagement to represent class members in seeking benefits from the claims process, including a fee of 10 percent plus a share of ‘common expenses?”
In a return email, according to Outside the Lines, Seeger admitted that his firm had agreed to represent Kinard for “the reduced fee of 10 percent,” adding that “we absolutely reject your suggestions and assumptions of anything inappropriate,” and “will not be executing a retainer with your client, Mr. Kinard.”
Seeger apparently offered to represent Kinard free of charge at this point, but that offer was rebuffed.
In his interview, Banzhaf said if a former player in the NFL litigation signs a contingency fee agreement with an attorney, that attorney is getting “a lot of money he never earned,” if the lawyer was involved with numerous players at once.
The players, in turn, would get arguably less than they are entitled to, the professor said.
Meanwhile, the settlement approval process moves forward.
It is not yet clear when Brody would rule on the proposed settlement.
What is certain is that’s she’ll wait to weigh in until the financial report by her special master is completed.
At this point, there’s no telling how long that process could take.