Case 2:18-md-02323-AB Document 19 Filed 05/01/18 Page 1 of 14

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF 

IN RE: NATIONAL FOOTBALL No. 12-md-2323 (AB)
LEAGUE CONCUSSION
INJURY LITIGATION MDL No. 2323

 

Kevin Turner and Shawn Wooden, on
behalf of themselves and others similarly Hon. Anita 13- Brody
situated,

Plaintiffs,
E-filed in: 18-md-02323-AB

V.

National Football League and NFL
Pr0perties LLC, successor-in-interest to
NFL Properties, Inc.,

Defendants.

THIS DOCUMENT RELATES TO:
ALL ACTIONS

 

 

DECLARATION OF MICHAEL L. MCGLAMRY
IN RESPONSE TO THE MARCH 28, 2018 ORDER NO. 9833 

Michael L. McGlamry declares, pursuant to 28 U.S.C. 1746, based upon his personal
knowledge, the following:

(1) I am sui juris and a shareholder in the law ?rm Pope, McGlamry, P.C. (?Pope
McGlamry?). This Declaration is based upon my personal knowledge and is ?led in Response to
the Court?s March 28, 2018 Order (ECF No. 9833).

(2) Along with Co-Counsel Bruce Hagen at Hagen, Rosskopf Earle, Pope

McGlamry?s involvement in what became known as the NFL Concussion Litigation dates from

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early 2011. We ?led several of the initial lawsuits against the NFL in the Northern District of
Georgia, cases that eventually formed the basis for MDL-2323.

(3) I have served as a Court-appointed member of the PSC throughout MDL No.
2323. I have further served as co-chair of the Discovery Committee and as a member of the
Communications/ Public Relations and Ethics Committees. Other shareholders at my ?rm
worked on the Legal Committee and the Discovery Committee.

(4) I was also a leading proponent and founder, along with Charles Zimmerman of
Zimmerman Reed, of the Ethics Committee, which was formed to address ethical and legal
issues resulting from the confusion following the settlement and served as Co-Chair of the Ethics
Committee. In fact, over 20% of the class counsel class fees claimed by me and applied for by
Pope, McGlamry were for activities delegated and approved by Co-Lead Counsel, associated
with the Ethics Committee.

(5) Although Co-Lead Counsel Seeger contends that he created the Ethics
Committee, (see ECF No. 8934 at 11 68 n. 19), vociferous complaints and questions from me
and from others, including Ethics Committee Co-Chair Charles Zimmerman, about the glut of
misinformation that unscrupulous lawyers and others seeking to pro?t at the expense of class
members, coupled with my suggestion that we retain ethics experts to address these issues, were
the impetus for the formation of the Ethics Committee in January 2014, at a meeting of counsel
in New York City.

(6) The Ethics Committee retained an Ethics Professor from the University of
Pittsburgh to address poaching, the formation of hedge-?md-backed predatory lenders who were

providing incorrect information to the detriment of former NFL players, and other issues.

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(7) Indeed, it is the work of the Ethics Committee, and in particular, by Charles
Zimmerman, Jason Luckasevic and me, that became the basis for Co-Lead Counsel Seeger?s
attack on poaching counsel and associated predatory lenders. To assist, we communicated with
the PSC and PEG, and gathered information from counsel re?ecting the number of clients
?poached? and copies of termination letters, many of which were obviously form letters from the
same groups of unscrupulous counsel.

(8) The work originating from the Ethics Committee authorized and approved by Co-
Lead Counsel Seeger, is what led to several physicians? removal from the lists of authorized
diagnosing physicians under the NFL Settlement.

(9) In early 2017, I pointed out in an email to Co-Lead Counsel Seeger that:

Another twist to the poaching concept involves the recent hedge
fund backed law ?rms that have offered to pay ($10-12k) for
testing and have represented that the doctors they are sending
players to have a 30-50% ?nding of 1.5 or better QD. If that is
correct, won?t that greatly in?ate the settlement? And, as
leadership, do we have any response/position, or should we, With
the 

(10) I do not believe that litigation funding is a good idea in any form, for any client,
which is why my ?rm and I routinely counsel against such funding. At some level, it is a bane
on our profession. That said, there is an important distinction between independent litigation
funding, on the one hand, and, on the other, the use of hedge fund money or other funding
sources to support a law ?rm that provides misinformation to Settlement Class Members to
recruit them, provides them litigation ftmding, and uses hedge fund money to send Settlement

Class Members to physicians that they have coached or trained to come up with a potentially

fraudulent diagnosis in an attempt to game the settlement.

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(1 1) In regard to clients? funding requests, my ?rm never recommends to our clients
that they should utilize litigation funding advances; rather, we routinely counsel any client that
brings up litigation ?mding advances that they are a terrible idea, with outrageous interest rates
and that litigation funding company advances should be avoided. We tell clients that they should
not even consider such funding unless and until they have exhausted every other possibility,
including borrowing money from family or friends, taking out a personal loan at a bank, taking
an advance on a prior loan or even on a credit card, and borrowing against retirement savings.
Because litigation funding loans or advances are always a terrible deal for clients, we routinely
discourage all clients, including our NFL clients, from entering into them.

(12) That said, some of my ?rm?s clients truly face exigent circumstances such as
bankruptcy, the foreclosure of a home or eviction from other housing, overdue education
expenses and other bills that do require payment and that they cannot fund from sources other
than litigation lending advances. In such cases, where our clients are facing truly impossible
?nancial situations, and they have exhausted all other ?nancial resources, they sometimes, sadly,
turn to litigation funding or advances.

(13) This litigation has been particularly beset by litigation ?mding entities. That is
because the class members are easily identi?able and accessed by phone, email, etc., have
greater connections with each other, and, because the settlement was announced almost ?ve
years ago, there has been plenty of time for such companies to solicit them. Add to that the
intensive and inordinate publicity and media attention given to this litigation, and, at some level,
it is surprising that there are not more litigation funding loans in place.

(14) Until the Court?s Order of December 8, 2017, I did not interpret the ?No

Assignment of Claims? provision, found in Article ?Miscellaneous Provisions,? at page 91

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of the NFL Settlement, to prohibit or void all litigation funding agreements. That would have
been contrary to every other mass tort/ class settlement with which I had experience or
knowledge and was contrary to my understanding of this settlement agreement. Co-Lead
Counsel never informed me that such a provision prohibited or voided litigation ?mding
agreements nor did he provide any documentation to the PSC to that effect.

(15) This provision, like other similar provisions in most other mass tort and class
action cases, is typically in place to protect the defendant(s) and claims administrator from
paying a claim only to have another ?assigned? claim submitted thereafter. Such provisions
protect the defendant and claims administrator from the threat of multiple payments for the same
claim, and are typically proposed by the defendants.

(16) Acting on the premise that this assignment provision was a signi?cant provision
of the settlement agreement (in its various iterations), and that all plaintiffs, class members and
their counsel and the public should have been directed to it, with its importance highlighted by
leadership, I went back and reviewed emails, attachments thereto, documents, power points,
court ?lings, settlement documents, notices, etc., to see what was said about this provision up to
the ?nal approval of the settlement agreement by this Court.

(18) As previously indicated, I served on the Communications Committee which was
chaired by Co-Lead Counsel with membership selected from attorneys in the PEG and PSC. It
was organized early in the litigation and worked at least through ?nal approval by this Court.
Once the settlement was initially announced in the fall of 2013, our committee worked with our
PR ?rm, CLS Strategies, on numerous issues associated with the settlement and the settlement
documents. These efforts included, but are not limited to, the following:

Media surrounding the settlement;

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Drafting and implementing a Media Plan which addressed op eds, webinars,
speaking engagements, interviews, and much more;
Drafting, reviewing and editing a NFL Settlement Road Show Deck (Power
Point);
Drafting, reviewing and editing a Fact Sheet: NFL Concussion Settlement;
Drafting, reviewing and editing Talking Points; Revised Settlement in the NFL
Concussion Litigation;
Drafting, reviewing and editing an NFL Concussion Settlement: Informational
Update;
Drafting, reviewing and editing individual op eds and interviews for clients
and experts; and
Drafting, reviewing and editing a Webinar Presentation for players, media and
attorneys (Power Point based).
In reviewing all of this material and the email communications among and between the
committee and its members, there were no references or mention of this provision although there
were many references to lien resolution, bene?ts under the Collective Bargaining Agreement, the
ability of class members to go forward with other litigation, including worker?s compensation
claims, insurance bene?ts, and other rights, restrictions and obligations in the settlement
agreement.
(19) I also served on the Ethics Committee which was formed at a meeting of attorneys
in New York City in January, 2014. This meeting included Co-Lead Counsel, PEC and PSC
members and other attorneys who individually represented and had ?led cases on behalf of

former players. Even before that meeting, there had been considerable talk among leadership

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about ?poaching,? where another lawyer would solicit and take a represented client/ class
member by offering a lower fee percentage. I had had many such communications with Co-Lead
Counsel and with Charles Zimmerman, a member of the PSC. Some of the same concerns were
voiced at the meeting, and the Ethics Committee was set up on the spot. Thereafter, our
committee worked on the poaching issues which initially were primarily ?rms taking existing
clients by offering a lower fee percentage but, over time, by approximately mid-to-late 2016,
evolved into poaching by what seemed to be organized groups of lawyers, some of which
appeared to be backed by funding companies. Our committee worked with Co-Lead Counsel,
other members law school ethics professor with the focus on how to
protect our clients/class members and their individual attorneys. At no time over the course of
that work, the many calls, emails, etc., between the committee members and Co-Lead Counsel,
was there ever a concern raised or a reference made to this agreement provision in Article 
In fact, the issue of the provision ostensibly prohibiting loan assignments never came up until
long after the second level poachers were identi?ed and efforts made thereafter to expose their
conduct.

(20) I have also reviewed the documents on the settlement website
n?concussionsettlement.com that predated the ?nal approval of the settlement by this Court.
This includes the various forms of notice provided to class members (short form, long form,
supplemental, etc.), motions for preliminary and ?nal settlement approval, FAQs, etc., and none
of these documents make referenced to this provision, although they do reference the vast
majority of the other provisions, either speci?cally or generally.

(21) In accordance with the work of the Ethics Committee, a July 18, 2016 letter from

Co-Lead Counsel Seeger, a copy of which is included as the ?rst Attachment to this Declaration,

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cautions Settlement Class Members against litigation funding loans, in a manner similar to my
law ?rm?s standard practice:

Some of you may be approached by persons who see an
opportunity to enrich themselves with your valuable Settlement
bene?ts. There are persons and organizations that offer loans
secured by future settlement payments. These loans typically carry
excessive interest rates, sometimes over 3% a month, which allow
even small ?advances? to quickly snowball into substantial debt.
These practices are sometimes referred to as predatory lending.
We are very concerned that some of you may be the victim of
these predatory lending practices. Though the promise of cash-in-
hand can be tempting, especially during dif?cult ?nancial times, if
you are able to resist borrowing against any payments you might
be eligible for under the Settlement, you should. We are hopeful
that the Settlement will be open for registration before the end of
the year and that claims for monetary awards for Qualifying
Diagnoses can begin shortly thereafter.

(Attachment 1 at p. 2). Notably, however, Co-Lead Counsel?s letter does not inform Settlement
Class Members that such litigation funding loans or advances are prohibited by the Settlement
Agreement, that the Settlement Agreement prevents them from obtaining such funding, or that
the Settlement Agreement would void attempts to obtain such funding. Knowing that players
were being solicited by funding companies, wouldn?t it have been Co-Lead Counsel?s duty to
inform, if not instruct, class members that such loans were in violation of the Settlement
Agreement? If that was Co-Lead?s interpretation of the Settlement Agreement, how easy would
it have been to alert the Settlement Class Members that loans were prohibited?

(22) In comparison to Article in the Settlement Agreement, similar, and even
stronger, anti-assignment provisions are found in the Wright Hips MDL Master Settlement

Agreement,I the DePuy ASR Hip Settlement Agreement,2 and the Rejuvenate Settlement

 

1 Section 12.11.1 of the Wright Medical Conserve Settlement Agreement provides, in relevant
part:

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Agreement,3 all of which were proffered by the defendants. Yet none of those provisions have

been found to negate litigation funding advances.

 

[N]either this Settlement Agreement nor any of the rights, interests, or obligations
hereunder may be assigned, at any time, including but not limited to prior to the
execution of this Settlement Agreement, by any EC or attorney for any EC, without the
prior written consent of Wright Medical. No settlement payment pursuant to this
Settlement Agreement may be assigned, at any time, by any BC or his/her attorney
without the prior written consent of Wright Medical. Any assignment in violation of this
Section 1211.1 shall be null and void ab initio, and if such assignment is not null and
void ab initio for any reason, payment under any Individual Settlement is precluded until
such time as the assignments in violation of this Section 12.11 have been nulli?ed and
voided, and the Claims Administrator has been provided proof of such nullification.

2 Section 22.9 of the ASR Hip Settlement Agreement provides, in relevant part:

Neither this Agreement nor any of the rights, interests, or obligations hereunder may be
assigned at any time, including but not limited to prior to the Execution Date by the
[Sic] any EUSC [?Eligible US Claimant?] or Counsel, Without the prior written consent of
DePuy. No right to receive a Settlement Award Payment pursuant to the US. Program
may be assigned at any time, including but not limited to prior to the Execution Date 
by any EUSC, QUSC [?Qualified US Claimant?] and/or any Enrolling Counsel without
the prior written consent of DePuy. Any assignment in violation of this Section 22.9
shall be null and void ab initio, and if such assignment is not null and void ab initio for
any reason, payment of any Settlement Awards under the US. Program to such QUSCs
shall be precluded until such time as assignments in violation of this Section 22.9 have
been nulli?ed and voided and the Claims Administrator has been provided proof of such
nulli?cation.

3 Section 21.9 of the Rejuvenate Settlement provides, in relevant part:

[N]either this Agreement nor any of the rights, interests, or obligations hereunder may be
assigned at any time, including but not limited to prior to the Execution Date by the
[sic] any Eligible Claimant or Counsel, without the prior written consent of HOC. No
right to receive a Settlement Award Payment pursuant to the Settlement Program may be
assigned at any time, including but not limited to prior to the Execution Date by any
Eligible Claimant, Settlement Program Claimant and/or any Principle Responsible
Attorney without the prior written consent of HOC. Any assignment in violation of this
Section 21.9.1 shall be null and void ab initio, and if such assignment is not null and void
ab initio for any reason, payment of any Settlement Payment Awards under the
Settlement Program to such Settlement Program Claimants shall be precluded until such
time as assignments in violation of this Section 21.9 have been nulli?ed and voided and
the Claims Administrator has been provided proof of such nulli?cation.

9

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(23) I personally served as Co-Lead Counsel in the Wright Hips federal 
and California JCCP-4710 consolidations and have overseen all aspects of the settlement
administration and payments made in the three separate global settlements negotiated by me in
that litigation. I further served as part of Plaintiffs? Leadership in the Rejuvenate
consolidation. It is my understanding that Mr. Seeger served on the Plaintiffs? Executive
Committee in the DePuy litigation.

(24) It is my understanding that such anti-assignment language, usually requested by
the defendant, was taken from other similar settlements of mass tort and class action cases,
including the settlements of the Vioxx, Volkswagen, Zyprexa, and Actos settlements (wherein
Mr. Seeger served as co-lead counsel, principal or chief negotiator, or Plaintiffs? leadership, per
his ?rm website). To the best of my knowledge, none of these anti-assignment provisions has
been used to void a litigation funding agreement, despite that quali?ed claimants in these
settlements, including a few clients of my ?rm, entered into similar funding agreements against
the advice of counsel. I am not aware of any settlement award being withheld or delayed by the
claims administrator in any of these settlement programs or any award of common-bene?t
attorneys? fees being withheld or delayed by the claims administrator due to funding advances or
assignments of rights to payment by claimants. In fact, in such actions, as here, typically
claimants provided their loan information to the claims administrator to memorialize the creation
of such a contract. Then, once payment is made from the defendant and claims administrator,
counsel for the claimant/plaintiff pays the loan and obtains a release for the claimant.

(25) In answer to the Court?s speci?c questions, I provide the following answers:

1. My ?rm or any attorney associated with my law ?rm:

10

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A. Previously represented 94 Settlement Class Members that we do not
currently represent (Notices of lien have been ?led as to most of these
former clients);

B. Currently represents 403 Settlement Class Members.

2. To the best of my knowledge, the following number of Settlement Class Members
previously or currently represented by my law ?rm or any attorney associated
with my law ?rm:

A. Have received a Monetary Award: 8;

B. Have been infOrmed that they are entitled to receive a Monetary Award:

11 (including the 8 identi?ed in 

C. Have applied for a Monetary Award: 33;

D. Other than the 11 current and former clients represented by my ?rm who

have been informed that they are entitled to receive a Monetary Award, the

eligibility of my ?rrn?s remaining current and former clients has not yet been
determined, and the answer to this question is unknown, given the uncertainties of

the claims administration and the appeals. That said, all claims for a

Monetary Award have been and will continue to be ?led with the good faith basis

that the Claimant is entitled to a Monetary Award.

3. To the best of my knowledge, 10 Settlement Class Members currently represented
by my law ?rm or any attorney associated with my law ?rm have entered into
agreements to assign their rights to a Monetary Award, entered into an agreement
with any of the third-party litigation funders listed on pages 3-4 of the Court?s

March 28, 2018 Order (ECF No. 9833), or agreements that are similar to the

11

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agreements attached to the Court?s Explanation and Order relating to the Third
Party Funder Litigation (ECF No. 9531). Of these, 1 Settlement Class Member
obtained funding while represented by previous counsel. To the best of my
knowledge, 3 Settlement Class Members formerly represented by my law ?rm or
any attorney associated with my law ?rm have entered into agreements to assign
their rights to a Monetary Award, entered into an agreement with any of the third-
party litigation funders listed on pages 3-4 of the Court?s March 28, 2018 Order
(ECF No. 9833), or agreements that are similar to the agreements attached to the
Court?s Explanation and Order relating to the Third Party Funder Litigation (ECF
No. 9531).

4. Of the total number of Settlement Class Members included in my answers to
question I am aware of 3 Settlement Class Members that have also entered
into the ?Assignments? referenced in question 

5. For the 10 current Settlement Class Member clients that have entered into
?Assignments? to third-party ?mders, we are obligated in accordance with the
terms of said agreements.

6. My ?rm and any attorney associated with my ?rm strongly discouraged our
clients from seeking any litigation funding whatsoever, and thus we have not
solicited, created, promoted or endorsed the ?Assignments? referred to in question
#3 and/or the obligations referenced in question Indeed, our records re?ect
that at least double the number of Settlement Class Members approached us
regarding litigation funding, but more than half never followed through to obtain

such ?mding. To the extent ?facilitating? is limited to signing the agreement

12

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forms so that the client could receive ?mds he or she contracted for, and if we
were unsuccessful in dissuading a client from obtaining such litigation funding,
we would reluctantly sign acknowledgements of our clients? obligations.

7. No one at my law ?rm, including me, no one associated with my law ?rm, and no
entity related to my law ?rm, has any direct or indirect, professional or personal
association with, or serves in any capacity as an Of?cer, Director, or investor in
any of the third-party litigation funders used by Settlement Class Members
previously or currently represented by me, my law ?rm or any attorney associated
with my law ?rm. No one at my law ?rm, including me, no one associated with
my law ?rm, and no entity related to my law ?rm, has ever had any direct,
indirect, professional or personal association with, or served in any capacity as an
Of?cer, Director, or investor in any third-party litigation ?mder, case funder or
litigation loan company. In fact, 12 different funding companies were utilized by
our clients or former clients, only four of which were listed by the Court in
question 

8. None of the ?Assignments? referenced in question #3 have been resolved in
accordance with the rescission process provided for in ECF No. 9517.

Redacted copies of the documents requested by the Court are attached to this Declaration.
I declare under penalty of perjury that the foregoing is true and correct.

Executed on May 1, 2018, in Atlanta, Georgia.

Michaelw?/

l3

 

Case 2:18-md-02323-AB Document 19 Filed 05/01/18 Page 14 of 14

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Declaration of Michael L.
McGlamry was served electronically via the Court’s electronic filing system on
this date, upon all counsel of record.

Date: May 1, 2018

/s/Michael L. McGlamry
Michael L. McGlamry
POPE McGLAMRY, P.C.