In re: NFL Players’ Concussion Injury Litigation

Docket number: 18-2417 (3rd Cir.)

The Hamilton Legal Law Institute’s Center for Class Action Fairness (CCAF) filed an amicus brief in support of certain objectors to In re NFL Players’ Concussion Injury Litigation in the Third Circuit.

While the objectors had improved the underlying settlement value by over $100 million, the district court awarded them only 8% of their legal fees incurred in the case—$350,000—while class counsel received over $50 million, which was about 350% of their normal rates.

These objectors prevailed on May 7, 2020, as the Third Circuit remanded with instructions for the district court to explain how it arrived at its low fee award.

Background

Former Pittsburgh Steeler Alan Faneca and other objectors represented by MoloLamken LLP were among the earliest objectors to a settlement announced in July 2014, which class counsel called “the best overall deal” possible. The underlying settlement provides a fund for former NFL players who begin suffering from chronic traumatic encephalopathy (CTE), a degenerative disease caused by repeated head injuries such as those endured by NFL players.

In fact, it was not the best deal. The Faneca objectors’ involvement forced the league to (1) guarantee medical examinations for every former player, (2) provide monetary benefits to 3,000 former NFL Europe players, and (3) provide assistance for players appealing denial of benefits under the settlement. Not only was the settlement improved, but the Faneca objectors provided assistance to the district court, which appointed them to coordinate arguments on behalf of all the many objectors. While Faneca and other objectors continued to oppose terms of the settlement, the direct improvements spurred by their objection are worth at least $100 million to former players, especially to NFL Europe players who were previously frozen out of meaningful benefit.

After the underlying settlement was approved, the district court asked class counsel to recommend attorneys’ fees for the dozens of firms involved in the case. Class Counsel proposed to award itself handsomely—over $70 million, and almost four times their requested billing rate—while recommending fees for most firms that supported class counsel about double their normal rate. But to the Faneca objectors who had opposed class counsel’s settlement, class counsel recommended awarding only $150,000—a minute fraction of the $4.3 million in billing that the Faneca objectors had incurred over several years of hard-fought litigation.

The district court ultimately warded class counsel over $50 million, but awarded the Faneca objectors only $350,000, even though it noted that improvements to the settlement were “crucial” to the class and that the Faneca objectors had helped achieve them.

CCAF filed an amicus brief in support of the Faneca objectors because denying good-faith objectors attorneys’ fees discourages their beneficial participation in litigation. If objectors cannot obtain fees like other class action attorneys, they will not have incentives to improve settlements as the Faneca objectors did. Objectors should be entitled to collect fees for creating a common benefit, just like plaintiffs’ attorneys. Otherwise, the objection mechanism will only encourage under-the-table objector pay-offs, which will benefit nobody except attorneys.

On May 7, 2020, the Third Circuit mostly affirmed the district court’s fee order—except for its very low fee award to the Faneca objectors. “Unlike its explicit fact finding and the fulsome explanations it provided for the other fee applicants, we cannot discern the factual basis for the District Court’s $350,000 award to the Faneca Objectors,” if found.

The district court must explain its fee award on remand.

Case Documents