Case 2:12-md-02323-AB Document 10767 Filed 07/25/19 Page 1 of 17

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
No. 2:12-md-02323-AB
IN RE: NATIONAL FOOTBALL
LEAGUE PLAYERS’ CONCUSSION
INJURY LITIGATION

Kevin Turner and Shawn Wooden,
on behalf of themselves and
others similarly situated,

MDL No. 2323
Hon. Anita B. Brody

Civ. Action No. 14-00029-AB

Plaintiffs,
v.
National Football League and
NFL Properties LLC,
successor-in-interest to
NFL Properties, Inc.,
Defendants.

THIS DOCUMENT RELATES TO:
ALL ACTIONS

THIRD VERIFIED PETITION OF CLASS COUNSEL
CHRISTOPHER A. SEEGER FOR AN AWARD OF
POST-EFFECTIVE DATE COMMON BENEFIT ATTORNEYS’ FEES AND COSTS
Pursuant to this Court’s May 24, 2018 Explanation and Order (ECF No. 10019), and
subsequent to the Second Verified Petition for an Award of Post-Effective Date Common Benefit
Attorneys’ Fees and Costs (ECF No. 10374) (“Second Post-Effective Date Petition”), Class
Counsel Christopher A. Seeger (“Class Counsel” or “Seeger Weiss”) respectfully submits this
Third Verified Petition for an Award of Post-Effective Date Common Benefit Attorneys’ Fees and
Costs.

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Based on the work undertaken from December 1, 2018, the first date after the close of the
time period covered by the Second Post-Effective Date Petition, 1 to May 31, 2019, Seeger Weiss
has undertaken work for the common benefit of the Settlement Class and dedicated over 2,100
hours, resulting in a lodestar (calculated using the blended rates set by the Court; see ECF No.
10019 at 7 n.4) of $1,445,488.66, and has incurred $243,788.10 in expenses.

SUMMARY OF WORK COMPLETED – DECEMBER 1, 2018 TO MAY 31, 2019
As was discussed in the Second Post-Effective Date Petition, the work of implementation
of the Settlement continued alongside the on-going monitoring and oversight that the Settlement
will continue to demand over the remainder of its term. Although the foundational work necessary
to establish this 65-year settlement was largely completed by the time of the Second Post-Effective
Date Petition, several substantive matters above and beyond the monitoring and oversight of the
Settlement continued to demand the attention and resources of Class Counsel. Additionally,
monitoring the Settlement Program to ensure that it continues to deliver the promised benefits to
the Settlement Class has continued to require sundry efforts.
Among these efforts were revisions to the MAF and BAP policies and documentation,
monitoring and oversight of the medical professionals in the network of Qualified MAF Physicians
and BAP Providers, support of Class Members through the Claims Process, including on appeals,
ongoing support of unrepresented Class Members and individual counsel, and work concerning
the Education Fund (specifically, in determining appropriate programs and research resources
contemplated for the Fund). During the time period covered by the instant Petition, two significant

1

The Second Post-Effective Date Petition covered the period from May 25, 2018 to November
30, 2018. See ECF No. 10374 at 1.
2

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deadlines in the Settlement took place or were imminent. Class Counsel coordinated with the
Claims Administrator to ensure that players and their families with pre-Effective Date Diagnoses
had no issue with the February 6, 2019 deadline for the filing of Monetary Award 2. To that end,
Class Counsel directly assisted unrepresented Settlement Class Members in meeting this deadline.
Similarly, Class Counsel worked with the BAP Administrator to ensure that all players eligible for
the BAP and who faced the June 6, 2019 deadline for their examinations 3 timely requested the
BAP examinations to which they were entitled. As to both deadlines, Class Counsel sent reminder
letters to all unrepresented Retired Players and all private counsel representing Retired Players
regarding the February 6, 2019 deadline to file Pre-Effective Date claims, and also sent letters to
all BAP-eligible Retired Players born on or before June 6, 1974, and their counsel, reminding them
about the June 6, 2019 deadline to take their BAP exams.
Additionally, as with the Second Post-Effective Date Petition, Class Counsel continued to
engage in certain significant work that was unanticipated, but which was essential to ensure the
integrity of the Settlement Program and the benefits negotiated for the Retired NFL Football
Players and their families. Most notably, this work included securing an Order of the Court that
affirmed that the Special Masters are not required but, rather, have the unfettered discretion to
consult with members of the AAP when deciding appeals (see ECF No. 10528), shoring up an
inclusive definition of “generally consistent” for diagnoses made outside of the BAP, and

2

For the sake of simplicity and brevity, “Monetary Awards” refers to both Monetary Awards and
Derivative Claimant Awards under, respectively, Articles VI and VII of the Settlement Agreement.
3

Under the Settlement Agreement, BAP-eligible players born on or before June 6, 1974 had until
June 6, 2019 to have their BAP exams. Settlement Agreement § 5.3. To accommodate the
practicalities of the BAP scheduling and appointment process, Class Counsel worked with the BAP
Administrator to allow initial efforts by a player to schedule examinations to satisfy the deadline.
The NFL consented to this accommodation.
3

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providing that players on the practice squad received credit toward half an Eligible Season for bye
weeks.
As of May 28, 2019, over 20,500 Settlement Class Members had registered for the
Settlement Program, over 2790 Claim Packages had been submitted, 863 Notices of Monetary
Awards had been issued, worth over $657 million; and over 10,230 BAP examinations had been
scheduled for 5,870 players and over 9,281 appointments had been attended.

4

See

www.nflconcussionsettlement.com/Reports_Statistics.aspx (last accessed July 18, 2019). These
successes are not mere happenstance. Seeger Weiss has worked tirelessly in coordination with the
Administrators, the Special Masters, and the Court—and both cooperatively with and, as
circumstances have warranted, against the NFL—to facilitate and oversee the Settlement. The biweekly call that Seeger Weiss hosts with the NFL Parties, the Claims Administrator, the BAP
Administrator, and the Lien Resolution Administrator, where ongoing issues and progress in
resolving them are hashed out, has been a central component of these efforts. Approximately 129
of these bi-weekly calls had taken place by the May 31, 2019 closing date of this petition. Work
on the Settlement has been a daily matter, requiring the dedication of several Seeger Weiss
attorneys and paraprofessionals, and has focused around certain key areas that are summarized in
the sections that follow.

4

Historic statistics related to the MAF are available on the Settlement Website. See
www.nflconcussionsettlement.com/Reports_Statistics.aspx (last accessed July 18, 2019). Historic
BAP statistics are not maintained on the Settlement Website. The BAP Administrator, however,
filed his Second Quarter Report on May 31, 3019 (ECF No. 10653).
4

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Oversight of the Claims Process and Monetary Award Determinations.
Seeger Weiss devoted significant time to actively monitoring and supporting the Claims
Process to ensure that Class Members are receiving the benefits that were negotiated on their
behalf. This oversight included ongoing reporting and requests for information from the Claims
Administrator and reviewing each claim determination by a member of the AAP or the Claims
Administrator to ensure that they are correctly following the terms of the Settlement Agreement.
Class Counsel’s continuing engagement with Settlement Class Members and their counsel
provided further bases and guidance on the needs of the Claims Process. This type of “hands on”
support was particularly needed in the lead-up to the February 6, 2019 deadline for the filing of
pre-Effective Date claims, and the June 6, 2019 BAP deadline for those BAP-eligible players born
on or before June 6, 1974.
Moreover, Class Counsel continues to support the petitions of Representative Claimants
for Retired NFL Football Players who were diagnosed with a Qualifying Diagnosis but who died
before January 1, 2006. Pursuant to the Settlement Agreement, before these claims can proceed
to review on the merits, the Court needs to determine whether they are timely under the applicable
state’s law. See ECF No. 6481-1 at 35 (Settlement Agreement § 6.2(b)). Since the Second PostEffective Date Fee Petition, Cass Counsel has submitted several additional Statements in support
of the Representative Claimants’ submissions that such claims are timely under the Settlement
Agreement.
Furthermore, just as it had worked to ensure inclusion of protections for the interests of
Class Members in the audit rules and procedures, Class Counsel has remained engaged in
supporting Class Members with ongoing audits of claims. In particular, Class Counsel has
submitted Statements regarding the Claims Administrator’s referrals to the Special Masters and

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replies in those referral accepted by the Special Masters, to make certain that meritorious claims
are not unduly caught up in the audit process and to ensure that the focus of any inquiry be on only
those parties (e.g., medical and legal professionals) that may have engaged in behavior not
permitted under the terms of the Settlement. More generally, Seeger Weiss monitors the progress
of audit investigations and provides formal input at each juncture.
As in the prior implementation periods, Class Counsel has worked to protect the interests
of Class Members (and will continue to do so) by monitoring the wider operation of the Settlement
Program and addressing with the Claims Administrator all manner of issues as they arise.
Appeals of Claims Determinations.
Seeger Weiss has continued to monitor all Monetary Award determinations to provide
guidance to Class Members. In those cases where an appeal from a determination is taken, either
by a Class Member or the NFL Parties, Class Counsel also determines whether to file a Statement
in support of the player’s position. Through this active engagement, Seeger Weiss’ goal is to make
sure that Class Members’ entitlement to benefits is not restricted or foreclosed outright by
improper interpretations of the Settlement Agreement or by meritless appeals taken by the NFL.
Whether through submitting Statements in support of a Class Member’s appeal or through direct
support of unrepresented Class Members and individual counsel, Class Counsel pursued, among
other things: a determination, based on the NFL’s Collective Bargaining Agreement, that players
on the practice squad will earn credit toward half an Eligible Season for “bye” weeks; the
application of the correct injury definition for Alzheimer’s disease for deceased players, which
differs from the injury definition for living players; and the proper use of screening tests, such as
MMSE and MoCA, which are not designed to be used to rule out a Qualifying Diagnosis of Level
1.5 or 2 Neurocognitive Impairment. Regarding the “bye” week success, the player whose appeal
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raised the issue had his monetary award increased by approximately $150,000 while 37 other
players received an additional half of an Eligible Season and eight of these players became newly
eligible for the BAP.
Maintenance of the Networks of Qualified BAP Providers and Qualified MAF Physicians.
The process of identifying and vetting BAP Providers and Qualified MAF Physicians is
on-going as the BAP and MAF networks continue to require qualified neurologists and
neuropsychologists (BAP only) in new regions, to add medical professionals in existing regions
and to replace those providers no longer in the program. That process involves a detailed review
of each provider’s curriculum vitae and application, as well as an investigation concerning such
candidates’ qualifications. Seeger Weiss has continually been engaged in this effort.
BAP Examinations and Supplemental Benefits.
Beyond its role in helping to maintain the BAP network of Providers, Seeger Weiss
continues to monitor the BAP to ensure that examinations are scheduled efficiently and appropriate
standards are followed. Moreover, in coordination with the BAP Administrator, Class Counsel
has continued to roll out BAP Supplemental Benefits for those Retired NFL Football Players
whose BAP examinations yield a diagnosis of Level 1 Neurocognitive Impairment. These efforts
include monitoring initial orientation of such eligible players, first consultations, and the expansion
of covered services to allow each player to receive the care most appropriate to his condition. As
of the BAP Administrator’s last Status Report, 85 players had received Level 1 diagnoses and were
either in the process of selecting the BAP Provider who will be overseeing their treatment and
benefits, or were already receiving their Supplemental Benefits. These benefits include a range of
therapeutics, pharmaceuticals, and diagnostic and imaging services, and require additional
contracting with BAP Providers as well as with those entities outside of the BAP network of
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Providers who will provide many of the services. Class Counsel has also monitored these retention
efforts by the BAP Administrator. Finally, in anticipation of the June 6, 2019 deadline for BAP
exams, and in coordination with the BAP Administrator, Class Counsel negotiated a compromise
with the NFL that offered the players subject to the deadline an extension so long as they request
an appointment by the deadline (as opposed to completing the examinations).
Fielding Communications from, and Supporting, Class Members and Individual Counsel.
Seeger Weiss continues to receive (and address) hundreds of telephone calls and emails
each month from Class Members and attorneys representing Class Members. The inquiries
involve all manner of issues concerning the Settlement, including the claims process, matters
relating to post-Effective Date examinations through the BAP and MAF, liens, and appeals.
Seeger Weiss handles every inquiry and has assisted numerous Class Members in successfully
navigating the claims process. Class Counsel has further assisted unrepresented Class Members
in gathering necessary documents, including medical records, and completing their claims
packages so that their claims can be promptly reviewed and, where qualifying, approved. Class
Counsel also frequently speaks and corresponds with counsel representing Class Members
concerning, inter alia, questions they have about the claims process, the Settlement’s Frequently
Asked Questions (which guide the claims process), and otherwise offering support to ensure that
qualifying claims are properly presented and paid. Given the deadline to file pre-Effective Date
claims and the deadline for certain players to take BAP exams fell within the time period covered
by this Petition (along with Class Counsel’s reminder letters), Class Counsel received a very high
number of calls and correspondence during this period.

8

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Efforts to Protect Class Members from Third-Party Profiteers.
Class Counsel has continued its efforts to protect Class Members whom litigation funders
lured into putative assignments of their prospective Monetary Awards. 5 Professor Issacharoff
presented oral argument in the Third Circuit in the appeals taken by several third-party funders
who challenged the Court’s declaration that their putative assignment agreements were void. See
ECF Nos. 9558, 9755, 9794, 10027, 10141 (notices of appeal filed by various funders). In a victory
for the players, the Third Circuit affirmed the authority of this Court to protect the res along with
the players from prohibited assignments. See Nat’l Football League Players’ Concussion Injury
Litig. 923 F.3d 96, 107-10 (3d Cir. 2019).
Education Fund and Medical Research Data.
Class Counsel and the NFL Parties continued exploring organizations that support safety
and injury protection in football and may be appropriate recipients of proceeds from the $10
million Education Fund that was established as part of the Settlement. See ECF No. 6481-1 at 68
(Settlement Agreement, art. XII). In that regard, the Parties are in advanced discussions with an
initial candidate organization.
Similarly, the Settlement Agreement contemplated that the medical records and
information that would be generated through the free BAP examinations provided to consenting
and eligible Retired NFL Football Players would be made available for medical research. 6 Id. at
33 (Settlement Agreement § 5.10(a)).

Class Counsel continued efforts with the BAP

5

As the Court is already well aware from the copious briefing of the assignment issues, these
putative purchases of Class Members’ prospective Monetary Awards at steep discounts (often
exceeding 50%) were cleverly packaged as what are, in effect, advances against the awards at
usurious rates of interest. See ECF No. 8434 at 7 & n.2.
6

As further provided in the Settlement Agreement, player confidentiality will be maintained.
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Administrator, the Claims Administrator, its own expert, a potential university partner, and the
NFL Parties to establish a medical research database that will gather, systematically organize, and
maintain the medical information that the BAP Administrator is collecting from the BAP
Examinations.
Class Counsel anticipates presenting a formal motion to the Court for approval of the
organizations that will be engaged in both initiatives and for and initial release of some portion of
the Education Fund to commence both programs.

INITIAL ASSESSENT OF ON-GOING WORK NECESSARY TO OVERSEE AND
MAINTAIN THE SETTLEMENT PROGRAM
As is evident from the foregoing, Class Counsel’s efforts to ensure that the Settlement
Program is implemented in accordance with the Settlement Agreement has borne substantial fruit
for the players and their families. Unlike prior fee petitions, this Third Fee Petition marks the first
period where the majority of Class Counsel’s efforts have been dedicated to the oversight and
maintenance of the Settlement Program, as opposed to the development and implementation of the
program. These daily oversight and maintenance tasks, however, are themselves demanding and
will continue to require commitments by Class Counsel as the submission of Claims Packages to
the Claims Administrator and the BAP process continue. With the deadline for filing Claims based
on pre-Effective Date Qualifying Diagnoses recently passed, Class Counsel anticipates that the
volume of all claims-related activity will remain high for several more months as these Claims, as
well as any related deficiencies and appeals, are processed.

10

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Three key areas illustrate the kinds of responsibilities Class Counsel undertakes and will
continue to undertake as part of its on-going monitoring and oversight of the Settlement. 7
Looking forward, Class Counsel anticipates that the following areas will comprise its primary
monitoring and oversight obligations.
Daily Communications with Unrepresented Players and Lawyers
In the period since the last Petition, Class Counsel received hundreds of calls and emails
each week in advance of key milestones (e.g., the pre-Effective Date Claims deadline). Currently,
Seeger Weiss receives approximately one hundred calls and emails each month. Calls are initially
received by a dedicated paralegal, who often can address the caller’s needs. Those calls that
present a more complex issue or problem and require investigation and engagement with the
Claims Administrator and/or the BAP Administrator, are escalated to an attorney. Some calls

7

In its April 5, 2018 Memorandum addressing the aggregate award of common benefit fees and
expenses, the Court noted that it hoped to address the question of the nature and amount of ongoing work to determine the funds that will be appropriate for the duration of the Settlement
program, including the potential need for the imposition of a holdback from Monetary Awards, for
the purposes of compensating the on-going monitoring and oversight of the Settlement. See ECF
No. 9860 at 2, 17-18 & n. 1. Although Class Counsel is unable to provide a sum certain at this
juncture, Class Counsel makes this proffer to lay the foundation for an estimate of the nature and
amount of work that the Settlement program will demand on a long-term basis. With respect to
the amount of work anticipated, Class Counsel notes that, consistent with previous representation
that once the “start-up” efforts were substantially concluded, future implementation-related
petitions would likely be for smaller attorneys’ fees awards, the hours submitted with this Petition
are substantially fewer (only 60%) than those submitted in the Second Post-Effective Date Fee
Petition. The deadline for pre-Effective Date claims has passed, with a subsequent, marked
increase in claims to be processed. In the month leading up to the pre-Effective Date claim
deadline, over 500 Claims were submitted, 170 of which were submitted by unrepresented
Settlement Class Members (who may require particular attention from Class Counsel). As these
claims are processed and the number of new MAF/BAP claims reaches a new baseline, Class
Counsel will be in a better position to frame both the scope and volume of the expected ongoing
work.
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result in long-term assistance, including help with obtaining and reviewing medical records,
assistance with Claim forms, or appeals (or in some case all three).
Review and Responses to Daily MAF Notices – Claims Determinations through Appeals
Since the launch of the Settlement, 863 Notices of Monetary Awards have been issued, and
that number increases with each passing day. Class Counsel reviews each Notice for accuracy and
possible issues that may impact the amount of award to which a Settlement Class Member is
entitled (e.g., age at diagnosis, wrong diagnosis date, Eligible Seasons). Through its investigation
and work with the Claims Administrator, Class Counsel’s vigilance and engagement has resulted
in increases to Monetary Awards for several players.
Relatedly, since the launch of the Settlement, 648 Notices of Denial of Monetary Awards
have been issued, and that number similarly increases with each passing day. As with the Notices
of Monetary Awards, Class Counsel reviews each of these denial notices for accuracy and possible
issues that may have led to an imprudent denial. Class Counsel contacts every unrepresented
Settlement Class Member to explain the decision and discuss possible next steps. Alongside these
efforts, Class Counsel investigates any issues that may exist, seeks expert medical and scientific
guidance (as may be required), and works with the Settlement Class Member (or their counsel) to
reach the best resolution.
In addition, since the launch of the Settlement, 351 appeals from claims determinations
have been taken by Settlement Class Members or the NFL, and several appeals have led to postappeal briefing. Throughout the administrative appeals process, Class Counsel reviews all filings
by the Settlement Class Members and the NFL, both to determine whether a Statement from Class
Counsel is warranted and to provide all appropriate support to unrepresented Settlement Class
Members or their individual counsel. As the Special Master issues decisions on Appeals, Class
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Counsel tracks each determination for potential precedential value, monitors objections that may
be submitted to the determinations and, as with the initial appeals process, provides support to
Settlement Class Members and may submit Statements in their support.
Finally, over 800 audit notices have posted since the launch of the Settlement. Class
Counsel reviews each audit notice to determine the basis of the audit and the position that Class
Counsel will be taking, raising any initial issues with the Claims Administrator that may lead to a
quicker resolution of the audit. For those audits that lead to a formal proceeding, Class Counsel
seeks to protect the interests of the affected Settlement Class Members, including possible referral
to the Special Masters and/or decision by the Special Masters when referral is taken.
Ongoing Settlement Coordination and Communication with Administrators
Beyond the engagement with the daily MAF Notices, Class Counsel addresses a wide range
of ongoing issues that arise in the course of the Settlement Program. In addition to internal
coordination within Seeger Weiss, including regularly scheduled team calls, Class Counsel is in
regular communication with the Claims Administrator, the BAP Administrator, and the Lien
Resolution Administrator to discuss current “action” issues. These communications take place at
what is now a biweekly call, which includes the NFL, as well as throughout the week via email or
calls with particular personnel at the Claims Administrator and BAP Administrator to identify and
move toward resolution of issues as they arise.

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SUMMARY OF HOURS & LODESTAR AND EXPENSES INCURRED
Throughout the time period covered by this Petition, Class Counsel dedicated 2,180.1
hours, for a lodestar of $1,445,488.66. This calculation is based on the blended rates established
by the Court, 8 and reflects the following 9:
Professional Rank
Partners 10

Total
Hours
1327.1

Counsel

352.7

Associates

285.7

Paralegals

214.6

TOTAL

2,180.1

Seeger Weiss also incurred $243,788.10 in expenses.

8

As directed by the Court, the lodestar billed employs the blended rates that the Court prescribed
in its May 24, 2018 allocation order. Accordingly, the billing rate for partners is $758.35; the rate
for “counsel” or “of counsel” attorneys is $692.50; the rate for associates is $486.67; the rate for
contract attorneys is $537.50; and the rate for paralegals is $260.00. See ECF No. 10019 at 7 n.4.
9

Class Counsel stand ready to submit supporting time records and supporting backup for expenses
to the Court for in camera review.
10

This includes 50.3 hours for Prof. Issacharoff’s time dedicated to his work before the Third
Circuit, particularly that relating to oral argument in opposition to the appeals of third-party
funders.
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CONCLUSION
WHEREFORE, the undersigned, as Class Counsel, respectfully requests that the Court
approve this Third Post-Effective Date Fee Petition for Post-Effective Date Attorneys’ Fees and
Costs and award $1,689,276.76, which reflects $1,445,488.66 in attorneys’ fees based on the
blended rates established by the Court, and $243,788.10 for reimbursement of expenses, to be paid
from the Attorneys’ Fees Qualified Settlement Fund.

Date: July 25, 2019
Respectfully submitted,
/s/ Christopher A. Seeger
Christopher A. Seeger
SEEGER WEISS LLP
55 Challenger Road, 6th Floor
Ridgefield Park, NJ 07660
cseeger@seegerweiss.com
Telephone: (212) 584-0700
CLASS COUNSEL

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VERIFICATION
CHRISTOPHER A. SEEGER declares, under penalty of perjury under the laws of the
United States of America and pursuant to 28 U.S.C. § 1746, that he is the Petitioner in this matter,
has read the foregoing Third Verified Petition of Class Counsel Christopher A. Seeger for an
Award of Post-Effective Date Common Benefit Attorneys’ Fees and Costs, and knows the contents
thereof, and that the same are true to his personal knowledge, information, and belief.
Executed this 25th day of July, 2019.
/s/ Christopher A. Seeger
CHRISTOPHER A. SEEGER

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CERTIFICATE OF SERVICE
I, Christopher A. Seeger, hereby certify that a true and correct copy of the foregoing was
served electronically via the Court’s electronic filing system on the date below upon all counsel of
record in this matter.

Dated: July 25, 2019
/s/ Christopher A. Seeger
CHRISTOPHER A. SEEGER