Case: 18-2012 Document: 003113316607 Page: 1 Date Filed: 08/09/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Docket Nos. 18-2012, 18-2225, 18-2249, 18-2253, 18-2281, 18-2332, 18-2416, 18-2417, 18-2418, 18-2419, 18-2422, 18-2650, 18-2651, 18-2661, 18-2724, and 19-1385 In re National Football League Players’ Concussion Injury Litigation JOINT APPENDIX Volume XIII of XIII, Pages JA9073-end On appeal from Orders of the United States District Court for the Eastern District of Pennsylvania (Hon. Anita B. Brody), in No. 2:14-md-02323-AB and MDL No. 2323 Tobias Barrington Wolff 3501 Sansom Street Philadelphia, PA 19104 (215) 898-7471 Counsel for the Locks Law Firm Gene Locks Michael Leh Locks Law Firm The Curtis Center 601 Walnut Street, Suite 720 East Philadelphia, PA 19106 (866) 562–5752 Case: 18-2012 Document: 003113316607 Page: 2 Date Filed: 08/09/2019 Additional counsel representing Appellants: Steven F. Molo Eric R. Nitz Rayiner I. Hashem MOLOLAMKEN LLP 600 New Hampshire Avenue, N.W. Washington, D.C. 20037 (202) 556–2000 Counsel for the Faneca Objectors Michele D. Hangley William T. Hangley HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER One Logan Square 18th & Cherry Streets, 27th Floor Philadelphia, Pa 19103 Counsel for the Faneca Objectors John J. Pentz 19 Widow Rites Lane Sudbury, MA 01776 (978) 261–5725 Counsel for the Miller Objectors Edward W. Cochran COCHRAN & COCHRAN 20030 Marchmont Road Shaker Heights, OH 44122 (216) 751–5546 Counsel for the Miller Objectors Michael L. McGlamry POPE MCGLAMRY KILPATRICK MORRISON & NORWOOD 3391 Peachtree Road, N.E., Suite 300 Atlanta, GA 30326 (404) 523–7706 Counsel for Pope McGlamry Richard L. Coffman THE COFFMAN LAW FIRM 505 Orleans Street, Suite 505 Beaumont, TX 77701 (409) 833–7700 Counsel for the Armstrong Objectors Mitchell A. Toups WELLER, GREEN, TOUPS & TERRELL 2615 Calder Street, Suite 400 Beaumont, TX 77702 (409) 838–0101 Counsel for the Armstrong Objectors Mike Warner THE WARNER LAW FIRM 101 Southeast 11th Avenue, Suite 301 Amarillo, TX 79101 (806) 372–2595 Counsel for the Armstrong Objectors Jason C. Webster THE WEBSTER LAW FIRM 6200 Savoy, Suite 515 Houston, TX 77036 (713) 581–3900 Counsel for the Armstrong Objectors Charles L. Becker KLINE & SPECTER 1525 Locust Street Philadelphia, PA 19102 (215) 772–1000 Counsel for the Aldridge Objectors Case: 18-2012 Document: 003113316607 Page: 3 Date Filed: 08/09/2019 Lance H. Lubel Adam Voyles LUBEL VOYLES LLP 675 Bering Drive Houston, TX 77057 (713) 284–5200 Counsel for the Aldridge Objectors George W. Cochran LAW OFFICE OF GEORGE W. COCHRAN 1385 Russell Drive Streetsboro, OH 44241 (330) 607–5600 Counsel for the Anderson Objectors Mickey L. Washington WASHINGTON & ASSOCIATES, PLLC 2109 Wichita Street Houston, TX 77004 (713) 225–1838 Counsel for the Aldridge Objectors Craig R. Mitnick MITNICK LAW OFFICE 35 Kings Highway East Haddonfield, NJ 08033 (856) 427–9000 Counsel for Mitnick Law Office Gaetan J. Alfano Kevin E. Raphael Alexander M. Owens PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI 1818 Market Street Philadelphia, PA 19103 (215) 320–6200 Counsel for Anapol Weiss, P.C. Linda S. Mullenix 2305 Barton Creek Boulevard Austin, Texas 78735 Counsel for Sean Considine J. Gordon Rudd, Jr. Brian C. Gudmundson Michael J. Laird ZIMMERMAN REED LLP 1100 IDS Center, 80 S Eighth Street Minneapolis, MN 55402 Counsel for Zimmerman Reed Anthony Tarricone KREINDLER & KREINDLER LLP 855 Boylston Street Boston, MA 02116 (617) 424–9100 Counsel for Kreindler & Kreindler LLC Case: 18-2012 Document: 003113316607 Page: 4 Date Filed: 08/09/2019 TABLE OF CONTENTS Page Dkt. 9960, Aldridge Objectors’ Notice of Appeal, filed May 3, 2018 ................................................................................................. JA1 Dkt. 10036, Aldridge Objectors’ Notice of Appeal, filed June 1, 2018 .................................................................................................. JA6 Dkt. 10043, Objector Miller’s Notice of Appeal, filed June 6, 2018 ................................................................................................ JA11 Dkt. 10044, Objector Anderson’s Notice of Appeal, filed June 6, 2018 ................................................................................................ JA13 Dkt. 10075, Mitnick Law Office’s Notice of Appeal, filed June 8, 2018 ................................................................................................ JA15 Dkt. 10079, Anapol Weiss, P.C.’s Notice of Appeal, filed June 15, 2018 .............................................................................................. JA17 Dkt. 10095, Kreindler & Kreindler, LLP’s Notice of Appeal, filed June 22, 2018 .............................................................................................. JA19 Dkt. 10097, Faneca Objectors’ Notice of Appeal, filed June 22, 2018 .............................................................................................. JA21 Dkt. 10099, Zimmerman Reed LLP’s Notice of Appeal, filed June 22, 2018 .............................................................................................. JA24 Dkt. 10101, Armstrong Objectors’ Notice of Appeal, filed June 25, 2018 .............................................................................................. JA27 Dkt. 10102, Pope McGlamry, P.C.’s Notice of Appeal, filed June 25, 2018 .............................................................................................. JA29 Dkt. 10133, Faneca Objectors’ Amended Notice of Appeal, filed July 13, 2018 ............................................................................................... JA32 Dkt. 10142, Anapol Weiss, P.C.’s Notice of Appeal, filed July 17, 2018 ............................................................................................... JA35 i Case: 18-2012 Document: 003113316607 Page: 5 Date Filed: 08/09/2019 Dkt. 10164, Aldridge Objectors’ Notice of Appeal, filed July 24, 2018 ............................................................................................... JA37 Dkt. 10166, Kreindler & Kreindler, LLP’s Notice of Appeal, filed July 25, 2018 ............................................................................................... JA40 Dkt. 10188, Class Counsel Locks Law Firm’s Notice of Appeal, filed Aug. 2, 2018 ............................................................................................... JA42 Dkt. 10428, Aldridge Objectors’ Notice of Appeal, filed Feb. 15, 2019 .............................................................................................. JA45 Dkt. 9860, Memorandum Opinion regarding: Total Amount of Common-Benefit Attorneys’ Fees, filed Apr. 5, 2018 ....................................... JA48 Dkt. 9861, Order regarding: Total Amount of Common-Benefit Attorneys’ Fees, filed Apr. 5, 2018..................................................................... JA68 Dkt. 9862 Memorandum Opinion regarding: IRPA Fee Cap, filed Apr. 5, 2018 ................................................................................................ JA70 Dkt. 9863, Order regarding: IRPA Fee Cap, filed Apr. 5, 2018 ......................... JA80 Dkt. 9876, Order regarding: Payments of Incentive Awards and Expenses, filed Apr. 12, 2018 ............................................................................. JA82 Dkt. 10019, Explanation and Order regarding: Allocation of Common-Benefit Attorneys’ Fees, filed May 24, 2018 ..................................... JA84 Dkt. 10042, Order regarding: Alexander Objectors’ Motion for Reconsideration/New Trial, filed June 5, 2018 ................................................ JA111 Dkt. 10103, Order regarding: Payment of Attorneys’ Fees and Expenses, filed June 27, 2018 ........................................................................... JA113 Dkt. 10104, Order regarding: Withholdings for Common Benefit Fund, filed June 27, 2018 .................................................................................. JA115 Dkt. 10127, Order Denying Locks Law Firm’s Motion for Reconsideration of the Court’s Explanation and Order, filed July 10, 2018 ................................................................................................................... JA117 Dkt. 10378, Explanation and Order, filed Jan. 16, 2019 .................................. JA118 ii Case: 18-2012 Document: 003113316607 Page: 6 Date Filed: 08/09/2019 Civil Docket for Case No.: 2:12-md-2323-AB (E.D. Pa.)................................ JA127 Dkt. 4, Case Management Order No. 1, filed Mar. 6, 2012 ............................. JA693 Dkt. 52, Order Modifying Case Management Order No.1, filed Apr. 2, 2012 .............................................................................................. JA718 Dkt. 64, Case Management Order No. 2, filed Apr. 26, 2012 .......................... JA721 Dkt. 71, Transcript of Apr. 25, 2012 Organizational Courtroom Conference, filed May 10, 2012 ....................................................................... JA726 Dkt. 72, Case Management Order No. 3, filed May 11, 2012 .......................... JA764 Dkt. 2583, Stipulation and Order regarding: Scheduling, filed July 16, 2012 ............................................................................................. JA767 Dkt. 2642, Plaintiffs' Amended Master Administrative Long-Form Complaint, filed July 17, 2012 .......................................................................... JA773 Dkt. 3384, Order Denying Plaintiffs’ Motion for Discovery, filed Aug. 21, 2012 ........................................................................................... JA863 Dkt. 3587, Order regarding: Appointment of Defendant’s Co-Liaison Counsel, filed Aug. 29, 2012 ............................................................................ JA864 Dkt. 3698, Plaintiffs’ Uncontested Motion for Order Establishing a Time and Expense Reporting Protocol and Appointing Auditor, filed Sept. 7, 2012 ............................................................................................. JA865 Dkt. 3710, Order Granting Plaintiffs’ Uncontested Motion for Order Establishing a Time and Expense Reporting Protocol, filed Sept. 11, 2012 ........................................................................................... JA948 Dkt. 4135, Order Granting Plaintiffs’ Uncontested Motion for Extension of Deadline To File Initial Time Expense Reports, filed Oct. 31, 2012............................................................................................. JA960 Dkt. 4143, Order Granting Plaintiffs’ Uncontested Motion for Additional Extension of Deadline To File Initial Time and Expense Reports, filed Nov. 8, 2012 ............................................................................... JA961 iii Case: 18-2012 Document: 003113316607 Page: 7 Date Filed: 08/09/2019 Dkt. 5128, Order regarding: Appointment of a Mediator, filed July 8, 2013 ............................................................................................... JA962 Dkt. 5235, Order regarding: Proposed Settlement, filed Aug. 29, 2013 ........................................................................................... JA964 Dkt. 5634, Motion of Proposed Co-Lead Counsel for Preliminary Approval of the Class Settlement Agreement, filed Jan. 6, 2014 ..................... JA966 Dkt. 5634-2, Exhibit B, Class Action Settlement Agreement ................... JA1003 Dkt. 5657, Memorandum Opinion Denying Preliminary Approval, filed Jan. 14, 2014 ........................................................................................... JA1471 Dkt. 5658, Order Denying Preliminary Approval Without Prejudice, filed Jan. 14, 2014 ........................................................................................... JA1483 Dkt. 5910, Order regarding: Court’s Jan. 14, 2014 Order, filed Apr. 16, 2014 .......................................................................................... JA1484 Dkt. 5911, Stipulation and Order regarding: Apr. 15, 2014 Order, filed Apr. 16, 2014 .......................................................................................... JA1485 Dkt. 6019, Faneca Objectors’ Motion To Intervene filed May 5, 2014 ............................................................................................ JA1487 Dkt. 6019-1, Memorandum of Law in Support ......................................... JA1572 Dkt. 6073, Co-Lead Class Counsel’s Motion for Order Granting Preliminary Approval of Class Action Settlement, filed June 25, 2014......... JA1639 Dkt. 6073-4, Declaration of Mediator and Former United States District Court Judge Layn R. Phillips in Support of Preliminary Approval of Settlement, filed June 25, 2014 ............................... .................. JA1929 Dkt. 6082, Response in Opposition to Motion for Approval of Class Action Settlement, filed July 2, 2014 ............................................... JA2041 Dkt. 6083, Memorandum Opinion Granting Preliminary Approval, filed July 7, 2014 ............................................................................................. JA2160 Dkt. 6084, Order Granting Preliminary Approval, filed July 7, 2014 ............................................................................................. JA2121 iv Case: 18-2012 Document: 003113316607 Page: 8 Date Filed: 08/09/2019 Dkt. 6087, Class Action Settlement Agreement as of June 25, 2014, filed July 7, 2014 ............................................................................................. JA2151 Dkt. 6107, Order Denying Faneca Objectors’ Motion To Intervene, filed July 29, 2014 ........................................................................................... JA2313 Dkt. 6109, Faneca Objectors’ Reply in Further Support of Motion To Intervene, filed July 29, 2014 ......................................................................... JA2314 Dkt. 6126, Response in Opposition regarding: Plaintiffs’ Motion for Extension of Time To File Response/Reply to Motion To Permit Access to Medical, Actuarial, and Economic Information, filed Aug. 8, 2014 ............................................................................................................. JA2330 Dkt. 6160, Order Directing Special Master To File Actuarial Reports and Supplemental Information or Tabulations, filed Sept. 8, 2014 ........................................................................................... JA2333 Dkt. 6166, Order Denying Petition of Objecting Class Members for Leave to Appeal District Court’s Order Granting Settlement, filed Sept. 11, 2014 ......................................................................................... JA2334 Dkt. 6167, NFL Concussion Liability Forecast, filed Sept. 12, 2014 ............ JA2336 Dkt. 6167-1, Exhibit A, Supplemental Schedules ..................................... JA2407 Dkt. 6167-2, Exhibit B, Supplemental Schedules ..................................... JA2409 Dkt. 6167-3, Exhibit C, Supplemental Schedules ..................................... JA2411 Dkt. 6167-4, Exhibit D, Supplemental Schedules ..................................... JA2466 Dkt. 6168, Report of the Segal Group to Special Master Perry Golkin, filed Sept. 12, 2014 .................................................................. JA2468 Dkt. 6168-1, Exhibit A, Part 1, Player Database ....................................... JA2522 Dkt. 6168-2, Exhibit A, Part 2, Player Database ....................................... JA2677 Dkt. 6168-3, Exhibit B, Plaintiff’s Sample Data ....................................... JA2809 Dkt. 6168-4, Exhibit C, Screenshot of Plaintiff’s Database ...................... JA2879 v Case: 18-2012 Document: 003113316607 Page: 9 Date Filed: 08/09/2019 Dkt. 6168-5, Exhibit D, Screenshot of Model Assumptions as Entered into Model ................................................................................ JA2881 Dkt. 6168-6, Exhibit E, Cash Flow Analysis ............................................ JA2884 Dkt. 6168-7, Exhibit F, Supplemental Schedules ...................................... JA2889 Dkt. 6169, Faneca Objectors’ Motion for Discovery, filed Sept. 13, 2014 ......................................................................................... JA2960 Dkt. 6169-1, Memorandum of Law in Support of Motion for Limited Discovery ................................................................................ JA2963 Dkt. 6169-2, Exhibit A, Limited Discovery Requests............................... JA2977 Dkt. 6169-3, Exhibit B, Information on NFL Football Concussions ........ JA2996 Dkt. 6201, Faneca Objectors’ Objections, filed Oct. 14, 2014....................... JA3003 Dkt. 6201-1, Declaration of Eric R. Nitz, filed Oct. 6, 2014.......................... JA3128 Dkt. 6201-2, Exhibits 1-5 .......................................................................... JA3143 Dkt. 6201-3, Exhibits 6-8 .......................................................................... JA3184 Dkt. 6201-4, Exhibits 9-12 ........................................................................ JA3214 Dkt. 6201-5, Exhibits 13-15 ...................................................................... JA3286 Dkt. 6201-6, Exhibits 16-25 ...................................................................... JA3385 Dkt. 6201-7, Exhibits 26-30 ...................................................................... JA3405 Dkt. 6201-8, Exhibits 31-36 ...................................................................... JA3434 Dkt. 6201-9, Exhibits 37-44 ...................................................................... JA3463 Dkt. 6201-10, Exhibits 45-51 .................................................................... JA3492 Dkt. 6201-11, Exhibits 52-59 .................................................................... JA3571 Dkt. 6201-12, Exhibits 60-66 .................................................................... JA3752 Dkt. 6201-13, Exhibits 67-71 .................................................................... JA3752 vi Case: 18-2012 Document: 003113316607 Page: 10 Date Filed: 08/09/2019 Dkt. 6201-14, Exhibits 72-76 .................................................................... JA3776 Dkt. 6201-15, Exhibits 77-82 .................................................................... JA3819 Dkt. 6201-16, Declaration of Robert A. Stern, filed Oct. 6, 2014.................. JA3858 Dkt. 6201-17, Declaration of Sean Morey, filed Oct. 6, 2014 ....................... JA3919 Dkt. 6211, Faneca Objectors’ Motion for Leave To File a Reply in Support of Motion for Leave To Conduct Limited Discovery, filed Oct. 13, 2014........................................................................................... JA3923 Dkt. 6211-1, Memorandum of Law in Support of Movants’ Motion for Leave To File ....................................................................................... JA3926 Dkt. 6232, Faneca Objectors’ Supplemental Objections, filed Oct. 14, 2014........................................................................................... JA3928 Dkt. 6232-1, Declaration of Sam Gandy and Exhibits .............................. JA3933 Dkt. 6233, Armstrong Objectors’ Amended Objection to the June 25, 2014 Class Action Settlement Agreement, filed Oct. 14, 2014 ..................................................................................... JA3971 Dkt. 6233-1, Declaration of Drs. Brent E. Masel and Gregory J. O’Shanick in Support of BIAA’s Motion for Leave to File Amicus Curiae Brief ...................................................... JA4037 Dkt. 6233-2, Declaration of Richard L. Coffman...................................... JA4049 Dkt. 6233-3, Declaration of Mitchell Toups ............................................. JA4051 Dkt. 6233-4, Declaration of Jason Webster ............................................... JA4053 Dkt. 6237, Aldridge Objectors’ Objections to June 25, 2014 Class Action Settlement Agreement, filed Oct. 14, 2014 ............................... JA4055 Dkt. 6244, Faneca Objectors’ Motion To Set Scheduling Conference Before Nov. 19, 2014, filed Oct. 15, 2014...................................................... JA4066 Dkt. 6252, Faneca Objectors’ Motion for Production of Evidence, filed Oct. 21, 2014........................................................................................... JA4073 vii Case: 18-2012 Document: 003113316607 Page: 11 Date Filed: 08/09/2019 Dkt. 6339, Faneca Objectors’ Notice regarding: Intent To Appear at Fairness Hearing, filed Nov. 3, 2014 .............................................................. JA4078 Dkt. 6344, Order that Steven Molo Will Coordinate the Arguments of the Objectors at the Fairness Hearing, filed Nov. 4, 2014 ........................................................................................ JA4111-1 Dkt. 6353, Letter from Mitchell A. Toups to Judge Brody dated Sept. 3, 2014 regarding: Objection to June 25, 2014 Class Action Settlement by Armstrong Objectors, filed Nov. 3, 2014 ................................ JA4112 Dkt. 6420, Faneca Objectors’ Supplemental Objections., filed Nov. 11, 2014 ......................................................................................... JA4144 Dkt. 6423-5, Declaration of Orran L. Brown, Sr., filed Nov. 12, 2014 ......................................................................................... JA4157 Dkt. 6423-6, Supplemental Declaration of Mediator and Former United States District Court Judge Layn R. Phillips in Support of Final Approval of Settlement and Certification Class and Subclasses, filed November 12, 2014 …… ....................................................................... JA4236 Dkt. 6423-17, Declaration of Kenneth C. Fischer, M.D., filed Nov. 12, 2014 ......................................................................................... JA4249 Dkt. 6423-18, Declaration of Christopher C. Giza, M.D., filed Nov. 12, 2014 ......................................................................................... JA4267 Dkt. 6423-19, Declaration of David Allen Hovda, Ph.D, filed Nov. 12, 2014 ......................................................................................... JA4316 Dkt. 6423-20, Declaration of John G. Keilp, Ph.D., filed Nov. 12, 2014 ......................................................................................... JA4405 Dkt. 6423-21, Declaration of Thomas Vasquez, Ph.D., filed Nov. 12, 2014 ......................................................................................... JA4452 Dkt. 6425, Faneca Objectors’ Statement regarding: Fairness Hearing, filed Nov. 14, 2014 ......................................................................................... JA4539 Dkt. 6428, Notice of Counsel Permitted To Speak at Fairness Hearing, filed Nov. 17, 2014 ............................................................ JA4542 viii Case: 18-2012 Document: 003113316607 Page: 12 Date Filed: 08/09/2019 Dkt. 6434, Faneca Objectors’ Objections, filed Nov. 18, 2014 ..................... JA4544 Dkt. 6435, Faneca Objectors’ Statement regarding: Nov. 19, 2014 Fairness Hearing, filed Nov. 18, 2014 ............................................................ JA4550 Dkt. 6455, Post-Fairness Hearing Supplemental Briefing of Objectors regarding: Faneca Objectors’ Motion for Final Order and Judgment, filed Dec. 2, 2014 ............................................................................................ JA4551 Dkt. 6455-1, Supplemental Declaration of Robert Stern, filed Dec. 2, 2014 ............................................................................................ JA4591 Dkt. 6455-2, Supplemental Declaration of Sam Gandy and Exhibits, filed Dec. 2, 2014 ............................................................................................ JA4598 Dkt. 6455-3, Declaration of Patrick Hof and Exhibit, filed Dec. 2, 2014 ............................................................................................ JA4647 Dkt. 6455-4, Declaration of Jing Zhang and Exhibit, filed Dec. 2, 2014 ............................................................................................ JA4769 Dkt. 6455-5, Declaration of Martha Shenton and Exhibit, filed Dec. 2, 2014 ............................................................................................ JA4792 Dkt. 6455-6, Declaration of Charles Bernick and Exhibit, filed Dec. 2, 2014 ............................................................................................ JA4926 Dkt. 6455-7, Declaration of Michael Weiner and Exhibit, filed Dec. 2, 2014 ............................................................................................ JA4940 Dkt. 6455-8, Declaration of James Stone and Exhibit, filed Dec. 2, 2014 ............................................................................................ JA5099 Dkt. 6455-9, Declaration of Thomas Wisniewski and Exhibit, filed Dec. 2, 2014 ............................................................................................ JA5125 Dkt. 6455-10, Declaration of Steven T. DeKosky and Exhibit, filed Dec. 2, 2014 ............................................................................................ JA5176 Dkt. 6455-11, Declaration of Wayne Gordon and Exhibit, filed Dec. 2, 2014 ............................................................................................ JA5230 ix Case: 18-2012 Document: 003113316607 Page: 13 Date Filed: 08/09/2019 Dkt. 6455-12, Supplemental Declaration of Eric Nitz, filed Dec. 2, 2014 ............................................................................................ JA5270 Dkt. 6455-13, Exhibits 1-9 ........................................................................ JA5275 Dkt. 6455-14, Exhibits 10-18 .................................................................... JA5365 Dkt. 6455-23, Exhibits 20-27 .................................................................... JA5457 Dkt. 6461, Faneca Objectors’ Motion for Disclosure of Documents Relevant to Fairness of Settlement, filed Dec. 9, 2014 .................................. JA5508 Dkt. 6462, Faneca Objectors’ Motion for Disclosure of Financial Relationships with Experts, filed Dec. 9, 2014............................................... JA5515 Dkt. 6463, Amended Transcript of Nov. 19, 2014 Fairness Hearing, filed Dec. 11, 2014 .......................................................................................... JA5522 Dkt. 6469, Faneca Objectors’ Notice regarding: Fairness Hearing Slides, filed Dec. 22, 2014 ............................................................................. JA5774 Dkt. 6470, Faneca Objectors’ Notice regarding: Supplemental Authority, filed Dec. 23, 2014 ........................................................................ JA5814 Dkt. 6470-1, Memorandum Opinion and Order ........................................ JA5818 Dkt. 6479, Order Directing Settling Parties To Address Certain Issues by Feb. 13, 2015, filed Feb. 2, 2015 ............................................................... JA5839 Dkt. 6481, Class Counsel and the NFL Parties’ Joint Submission regarding: Feb. 2, 2015 Order, filed Feb. 13, 2015 ........................................ JA5842 Dkt. 6481-1, Exhibit A, Class Action Settlement Agreement (As Amended) ................................................................................................... JA5853 Dkt. 6481-2, Exhibit B, Redline Class Action Settlement Agreement (As Amended) ........................................................................ JA6015 Dkt. 6503, Armstrong Objectors’ Supplemental Objection to the Amended Class Action Settlement, filed Apr. 13, 2015........................... JA6124 Dkt. 6508, Order Ruling on Various Motions, filed Apr. 21, 2015 .......................................................................................... JA6129 x Case: 18-2012 Document: 003113316607 Page: 14 Date Filed: 08/09/2019 Dkt. 6509, Memorandum Opinion regarding: Final Approval of Amended Settlement, filed Apr. 22, 2015 ...................................................... JA6131 Dkt. 6510, Final Order and Judgment regarding: Final Settlement Approval, filed Apr. 22, 2015 ......................................................................... JA6263 Dkt. 6534, Amended Final Order and Judgment, filed May 8, 2015 ............................................................................................ JA6270 Dkt. 6535, Order regarding: Amended Final Order, filed May 11, 2015 .......................................................................................... JA6278 Dkt. 7070, Faneca Objectors’ Petition for an Award of Attorneys’ Fees, filed Jan. 11, 2017.................................................................................. JA6280 Dkt. 7070-1, Memorandum of Law in Support, filed Jan. 11, 2017 ........................................................................................... JA6283 Dkt. 7070-2, Declaration of Steven Molo, filed Jan. 11, 2017 ........................................................................................... JA6338 Dkt. 7151, Co-Lead Class Counsel’s Petition for an Award of Attorneys’ Fees, filed Feb. 13, 2017 ............................................................... JA6555 Dkt. 7151-1, Memorandum of Law in Support, filed Feb. 13, 2017 .......................................................................................... JA6558 Dkt. 7151-2, Declaration of Christopher Seeger, filed Feb. 13, 2017 .......................................................................................... JA6640 Dkt. 7151-6, Declaration of Levin Sedran & Berman, filed Feb. 13, 2017 .............................................................................................................. JA6723-1 Dkt. 7151-7, Declaration of Gene Locks, filed Feb. 13, 2017 ....................... JA6724 Dkt. 7151-8, Declaration of Steven C. Marks, filed Feb. 13, 2017 .. ............. JA6755 Dkt. 7151-10, Declaration of Sol H. Weiss, filed Feb. 13, 2017 .................... JA6785 Dkt. 7151-18, Exhibit O, Declaration of Samuel Issacharoff, filed Feb. 13, 2017 ..................................................................................... JA6814 xi Case: 18-2012 Document: 003113316607 Page: 15 Date Filed: 08/09/2019 Dkt. 7151-27, Exhibit X, Declaration of Charles Zimmerman, filed Feb. 13, 2017 ..................................................................................... JA6849 Dkt. 7151-28, Exhibit Y, Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, JOURNAL OF EMPIRICAL LEGAL STUDIES (Dec. 2010), filed Feb. 13, 2017 ................... JA6883 Dkt. 7161, Miller Objector’s Opposition to Co-Lead Class Counsel’s Fee Petition, filed Feb. 17, 2017 ..................................................................... JA6920 Dkt. 7176, Alexander Objectors’ Motion for Entry of Case Management Order Governing Applications for Attorney Fees, filed Feb. 21, 2017 .......................................................................................... JA6933 Dkt. 7228, Co-Lead Class Counsel’s Motion for Extension of Time To File Response/Reply Memorandum in Support of Their Fee Petition and To Set Coordinated Briefing Schedule, filed Feb. 28, 2017 ................................................................................................................. JA6943 Dkt. 7229, Objector Miller’s Response in Opposition to Fee Applications and Co-Lead Class Counsel’s Motion To Set Coordinated Briefing Schedule, filed Mar. 1, 2017........................................ JA6948 Dkt. 7230, Armstrong Objectors’ Petition for an Award of Attorneys’ Fees, filed Mar. 1, 2017 ................................................................ JA6951 Dkt. 7231, Objector Miller’s Corrected Response in Opposition to Fee Applications and Co-Lead Class Counsel’s Motion To Set Coordinated Briefing Schedule, filed Mar. 1, 2017........................................ JA6954 Dkt. 7232, Armstrong Objectors’ Memorandum of Law in Support of Petition for an Award of Attorneys’ Fees, filed Mar. 1, 2017 ........................ JA6957 Dkt. 7232-1, Exhibit A, Declaration of Richard L. Coffman in Support of the Armstrong Objectors’ Petition for Award of Attorneys’ Fees ..................................................................................... JA6992 Dkt. 7232-2, Exhibit B, Declaration of Mitchell A. Toups in Support of the Armstrong Objectors’ Petition for Award of Attorneys’ Fees................................................................................. JA6998 xii Case: 18-2012 Document: 003113316607 Page: 16 Date Filed: 08/09/2019 Dkt. 7232-3, Exhibit C, Declaration of the Webster Law Firm in Support of the Armstrong Objectors’ Petition for an Award of Attorneys’ Fees ..................................................................................... JA7007 Dkt. 7232-4, Exhibit D, Declaration of the Warner Law Firm in Support of the Armstrong Objectors’ Petition for an Award of Attorneys’ Fees ..................................................................................... JA7009 Dkt. 7233, Faneca Objectors’ Response to Motion regarding: Co-Lead Class Counsel’s Motion for Extension of Time, filed Mar 1, 2017 ............... JA7014 Dkt. 7237, Anderson Objector’s Supplemental Objection to Faneca Objector’s to Fee Petition, filed Mar. 1, 2017 ................................................ JA7017 Dkt. 7238, Order Granting Co-Lead Class Counsel’s Motion for Extension of Time, filed Mar. 2, 2017 ............................................................ JA7022 Dkt. 7259, Stipulation and Proposed Order by NFL, Inc., NFL Properties LLC, Plaintiff(s), filed Mar. 8, 2017 ..................................... JA7023 Dkt. 7261, Order regarding: Co-Lead Class Counsel’s Fee Petition, filed Mar. 8, 2017 ............................................................................................ JA7026 Dkt. 7324, Order Considering the Uncontested Motion of Co-Lead Class Counsel for Order in Aid of Implementation of the Settlement Program, filed Mar. 23, 2017 .......................................................................... JA7028 Dkt. 7344, Memorandum in Opposition to Co-Lead Class Counsel’s Petition for an Award of Attorneys’ Fees, filed Mar. 27, 2017 ...................... JA7036 Dkt. 7346, Memorandum in Opposition to Co-Lead Class Counsel’s Petition for an Award of Attorneys’ Fees, filed Mar. 27, 2017 .......................................................................................... JA7046 Dkt. 7350, Response Objection and Memorandum in Opposition to Co-Lead Counsel’s Petition for an Award of Attorneys’ Fees, filed Mar. 27, 2017 .......................................................................................... JA7059 Dkt. 7354, Aldridge Objectors’ Objections regarding: Co-Lead Class Counsel’s Application for an Award of Attorneys’ Fees, filed Mar. 27, 2017 .......................................................................................... JA7073 xiii Case: 18-2012 Document: 003113316607 Page: 17 Date Filed: 08/09/2019 Dkt. 7355, Aldridge Objectors’ Objections regarding: Co-Lead Class Counsel’s Application for an Award of Attorneys’ Fees, filed Mar. 27, 2017 .......................................................................................... JA7076 Dkt. 7356, Certain Plaintiffs’ Response in Opposition to Petition for Adoption of Set-Aside of Five Percent of Each Monetary Award and Derivative Claimant Award, filed Mar. 27, 2017 ........................................... JA7145 Dkt. 7360, Objection by Plaintiff(s) to Request for Attorneys’ Fees and Holdback, filed Mar. 27, 2017 ................................................................. JA7150 Dkt. 7363, Notice of Joinder in Estate of Kevin Turner’s Response and Limited Opposition to Co-Lead Counsel’s Petition for an Award of Attorneys’ Fees, filed Mar. 27, 2017 .......................................................... JA7160 Dkt. 7364, Application/Petition of Objectors Preston and Katherine Jones for Award of Attorneys’ Fees, filed Mar. 27, 2017 .............................. JA7167 Dkt. 7366, Faneca Objectors’ Preliminary Response in Support regarding: Petition for an Award of Attorney Fees and in Response to Dkts. 7151, 7161, 7230 and 7237, filed Mar. 27, 2017 .................................. JA7170 Dkt. 7366-1, Exhibit A, Declaration of Joseph Floyd ............................... JA7188 Dkt. 7366-2, Exhibit B, Armstrong Objectors’ Memorandum of Law............................................................................................................. JA7223 Dkt. 7366-3, Exhibit C, Revised Summary of Expenses .......................... JA7259 Dkt. 7367, Plaintiffs’ Joinder to Objections regarding: Co-Lead Counsel’s Petition for an Award of Attorneys’ Fees, filed Mar. 27, 2017 ......................................................................................... JA7261 Dkt. 7370, Anderson Objector’s Second Supplemental Notice of Fee Objections, filed Mar. 27, 2017 ...................................................................... JA7264 Dkt. 7373, Plaintiffs’ Objections to Co-Lead Class Counsel’s Request for Five Percent Set Aside, filed Mar. 27, 2017 ............................................. JA7269 Dkt. 7375, Plaintiffs’ Notice of Joinder in Objections to Co-Lead Class Counsel’s Petition for Fees, Reimbursements, and Adoption of Set-Aside Award, filed Mar. 28, 2017 ............................................................ JA7275 xiv Case: 18-2012 Document: 003113316607 Page: 18 Date Filed: 08/09/2019 Dkt. 7403, Order Granting Deandra Cobb’s Motion To Accept Objection to Five Percent Set-Aside File, filed Mar. 29, 2017 ...................... JA7277 Dkt. 7404, Plaintiffs’ Response Objection regarding: Co-Lead Class Counsel’s Petition for Five Percent Set-Aside, filed Mar. 29, 2017 .............. JA7278 Dkt. 7409, Plaintiffs’ Motion for Extension of Time To File Answer, filed Mar. 29, 2017 .......................................................................................... JA7287 Dkt. 7446, Order That Pursuant to Federal Rules of Civil Procedure 72b Referring All Petitions for Individual Attorney' Liens, filed Apr. 4, 2017 .. .......................................................................................................... JA7289 Dkt. 7453, Order Granting Motion To Accept Joinder in Objections to Co-Lead Class Counsel’s Petition for Fees, filed Apr. 6, 2017 ................. JA7290 Dkt. 7463, Response in Opposition regarding: Motion for Joinder, filed Apr. 10, 2017 .......................................................................................... JA7291 Dkt. 7464, Co-Lead Class Counsel’s Memorandum in Support regarding: Fee Petition, filed Apr. 10, 2017 ................................................... JA7308 Dkt. 7464-1, Supplemental Seeger Declaration, filed Apr. 10, 2017 ............. JA7385 Dkt. 7464-2, Exhibit Z, Declaration of Bradford R. Sohn ........................ JA7396 Dkt. 7464-3, Exhibit AA, Petition to Appeal ............................................ JA7404 Dkt. 7464-4, Exhibit BB, Reply in Support .............................................. JA7437 Dkt. 7464-5, Exhibit CC, Corrected Opening Brief .................................. JA7456 Dkt. 7464-6, Exhibit DD, Appellants’ Reply Brief ................................... JA7529 Dkt. 7464-7, Exhibit EE, Class Opposition to Motion for Judicial Notice ......................................................................................................... JA7558 Dkt. 7464-8, Exhibit FF, Appellants’ Opposition to Motion to Expedite Appeals ....................................................................................... JA7570 Dkt. 7464-9, Exhibit GG, Petition for a Writ of Certiorari ....................... JA7574 Dkt. 7464-10, Exhibit HH, Petitioner’s Reply Brief ................................. JA7615 xv Case: 18-2012 Document: 003113316607 Page: 19 Date Filed: 08/09/2019 Dkt. 7464-11, Exhibit II, U.S. Supreme Court Docket for Armstrong v. NFL ...................................................................................... JA7630 Dkt. 7464-12, Exhibit JJ, An Updated Analysis of the NFL Concussion Settlement ............................................................................... JA7635 Dkt 7464-13, Exhibit KK, Declaration of Orran. L. Brown, Sr.. .............. JA7733 Dkt. 7533, Aldridge Objectors’ Objections regarding: Co-Lead Class Counsel’s Omnibus Reply, filed Apr. 21, 2017.............................................. JA7738 Dkt. 7534, Aldridge Objectors’ Motion for Leave To Serve FeePetition Discovery, filed Apr. 21, 2017 .......................................................... JA7750 Dkt. 7550, Faneca Objectors’ Reply to Response to Motion for Attorney Fees, filed Apr. 25, 2017 ................................................................. JA7756 Dkt 7550-1, Expert Declaration of Joseph J. Floyd, filed Apr. 25, 2017 .......................................................................................... JA7776 Dkt. 7555, Reply in Support regarding: Jones Objectors’ Fee Petition, filed Apr. 26, 2017 .......................................................................................... JA7785 Dkt. 7605, Co-Lead Class Counsel’s Motion To Strike Aldridge Objectors’ Objections as Unauthorized Sur-Reply, filed May 5, 2017 .......... JA7790 Dkt. 7606, Co-Lead Class Counsel’s Memorandum of Law regarding: Aldridge Objectors’ Motion for Discovery and Objections as Unauthorized Sur-Reply, filed May 5, 2017................................................... JA7793 Dkt. 7608, Armstrong Objectors’ Reply regarding: Their Attorneys’ Fee Petition, filed May 5, 2017 ....................................................................... JA7820 Dkt. 7621, Mitnick Law Office’s Brief and Statement of Issues in Support of Request for Review of Objectors’ Fee Petition, filed May 9, 2017 ............................................................................................ JA7828 Dkt. 7626, Aldridge Objectors’ Response in Opposition regarding: Co-Lead Class Counsel’s Motion To Strike Aldridge Objectors’ Objections as Unauthorized Sur-Reply, filed May 12, 2017 .......................... JA7844 xvi Case: 18-2012 Document: 003113316607 Page: 20 Date Filed: 08/09/2019 Dkt. 7627, Aldridge Objectors’ Memorandum of Law regarding: CoLead Class Counsel’s Motion To Strike Aldridge Objectors’ Objections as Unauthorized Sur-Reply, filed May 12, 2017 .......................... JA7847 Dkt. 7708, Faneca Objectors’ Reply to Response to Motion regarding: Faneca Objectors’ Motion for Attorney Fees and Mitnick Law Office’s Brief and Statement of Issues, filed May 18, 2017 .......................... JA7856 Dkt. 7710, Co-Lead Class Counsel’s Reply to Response to Motion regarding: Co-Lead Class Counsel’s Motion To Strike Aldridge Objectors’ Objections as Unauthorized Sur-Reply, filed May 19, 2017 ........ JA7863 Dkt. 8310, Order To Show Cause regarding: Fees and Expenses, filed Aug. 23, 2017 ......................................................................................... JA7872 Dkt. 8327, Co-Class Counsel’s Response to Order To Show Cause and Request for Clarification and Extension of Time, filed Aug. 28, 2017 ......................................................................................... JA7891 Dkt. 8330, Notice by Plaintiff(s) regarding: Co-Lead Class Counsel’s Fee Petition, filed Aug. 29, 2017 .................................................................... JA7895 Dkt. 8350, Aldridge Objectors’ Response regarding: Aug. 23, 2017 Order, filed Aug. 31, 2017 .............................................................................. JA7898 Dkt. 8354, Co-Lead Class Counsel’s Response in Opposition regarding: Notice by Plaintiff(s) For Appointment of Magistrate, filed Sept. 5, 2017 ........................................................................................... JA7909 Dkt. 8358, Order regarding: the Court’s Continuing and Exclusive Jurisdiction under Article XXVII of the Amended Class Action Settlement, filed Sept. 7, 2017 ........................................................................ JA7913 Dkt. 8364, Reply to Co-Lead Class Counsel’s Response to Request To Appoint Magistrate Judge, filed Sept. 11, 2017 ............................................. JA7916 Dkt. 8367, Order Directing the Filing of Declarations regarding: Proposed Fee Allocation, filed Sept. 12, 2017 ............................................... JA7920 Dkt. 8372, Notice regarding: Professor William B. Rubenstein’s Appointment as Advisor to Plaintiff’s Steering Committee, filed Sept. 13, 2017 ......................................................................................... JA7921 xvii Case: 18-2012 Document: 003113316607 Page: 21 Date Filed: 08/09/2019 Dkt. 8376, Order Appointing Professor Rubenstein as an Expert Witness on Attorneys’ Fees, filed Sept. 14, 2017........................................... JA7923 Dkt. 8395, Aldridge Objectors’ First Supplement in Support of Objections, filed Sept. 20, 2017 ...................................................................... JA7926 Dkt. 8396, Aldridge Objectors’ Motion To Compel Compliance with Case Management Order No. 5, filed Sept. 20, 2017 ..................................... JA7931 Dkt. 8440, Co-Lead Class Counsel’s Response in Opposition regarding: Aldridge Objectors’ Motion To Compel, filed Oct. 4, 2017............................................................................................. JA7933 Dkt. 8447, Seeger Declaration regarding: Proposed Fee Allocation Order, filed Oct. 10, 2017 ............................................................................... JA7943 Dkt. 8447-1, Exhibit to Declaration of Christopher A. Seeger in Support of Proposed Allocation ............................................................ JA7965 Dkt. 8447-2, Declaration of Brian T. Fitzpatrick ...................................... JA7967 Dkt. 8448, Order Directing Filing of Counter-Declarations regarding: Attorneys’ Fees, filed Oct. 12, 2017 ............................................................... JA7980 Dkt. 8449, Aldridge Objectors’ Reply to Co-Lead Class Counsel’s Response to Their Motion To Compel Compliance with Case Management Order No. 5, filed Oct. 12, 2017 ............................................... JA7981 Dkt. 8470, Co-Lead Class Counsel’s Motion for Order Directing the Claims Administrator To Withhold Any Portions of Class Member Monetary Awards, filed Oct. 23, 2017 ........................................................... JA7987 Dkt. 8532, Armstrong Objectors’ Response to Class Counsel’s Proposed Allocation of Common Benefit Attorneys’ Fees, filed Oct. 25, 2017........................................................................................... JA7992 Dkt. 8556, Counter-Declaration of Jason E. Luckasevic regarding: Fee Allocation, filed Oct. 26, 2017........................................................................ JA7996 Dkt. 8653, Declaration of Craig R. Mitnick regarding: Fee Allocation, filed Oct. 27, 2017........................................................................................... JA8005 xviii Case: 18-2012 Document: 003113316607 Page: 22 Date Filed: 08/09/2019 Dkt. 8701, Co-Lead Class Counsel Anapol Weiss’s Proposed Alternative Methodology for Fee Allocation, filed Oct. 27, 2017 ................. JA8020 Dkt. 8709, Declaration of Gene Locks, Class Counsel, regarding: Fee Allocation, filed Oct. 27, 2017........................................................................ JA8051 Dkt. 8719, Counter- Declaration of Thomas V. Girardi regarding: Fee Allocation, filed Oct. 27, 2017........................................................................ JA8086 Dkt. 8720, Declaration of Anthony Tarricone in Opposition regarding: Fee Allocation, filed Oct. 27, 2017 ................................................................. JA8095 Dkt. 8720-1, Exhibit to Declaration of Anthony Tarricone ..................... JA8107 Dkt. 8720-2, Kreindler & Kreindler LLP Opposition to Co-Lead Counsel’s Petition for an Award of Common Benefit Attorneys’ Fees ........................................................................................................... JA8109 Dkt. 8721, Declaration of Michael L. McGlamry regarding: Fee Allocation, filed Oct. 27, 2017........................................................................ JA8122 Dkt. 8722, Declaration of Charles S. Zimmerman regarding: Fee Allocation, filed Oct. 27, 2017........................................................................ JA8141 Dkt. 8723, Response by Neurocognitive Football Lawyers and The Yerid Law Firm In Support of Seeger Declaration regarding: Fee Allocation, filed Oct. 27, 2017........................................................................ JA8158 Dkt. 8724, Declaration of Derriel C. McCorvey regarding: Fee Allocation, filed Oct. 27, 2017........................................................................ JA8167 Dkt. 8725, Declaration of Lance H. Lubel regarding: Fee Allocation, filed Oct. 27, 2017........................................................................................... JA8179 Dkt. 8726, Faneca Objectors’ Response in Opposition to Seeger Declaration regarding: Fee Allocation, filed Oct. 27, 2017 ........................... JA8192 Dkt. 8727, Declaration of James T. Capretz regarding: Fee Allocation, filed Oct. 27, 2017........................................................................................... JA8206 Dkt. 8728, Declaration of Steven C. Marks regarding: Fee Allocation, filed Oct. 27, 2017........................................................................................... JA8212 xix Case: 18-2012 Document: 003113316607 Page: 23 Date Filed: 08/09/2019 Dkt. 8900, Order Directing Filing of Omnibus Replies regarding: Counter-Declarations, filed Nov. 7, 2017 ....................................................... JA8215 Dkt. 8915, Notice by Class Counsel regarding: Settlement Implementation, filed Nov. 10, 2017 .............................................................. JA8216 Dkt. 8917, Notice by Mitnick Law Office, filed Nov. 10, 2017 .................... JA8218 Dkt. 8929, Order regarding: Extension for Omnibus Reply, filed Nov. 17, 2017 ......................................................................................... JA8219 Dkt. 8934, Co-Lead Class Counsel’s Omnibus Reply to Responses, Objections, and Counter-Declarations regarding: Fee Petition, filed Nov. 17, 2017 .................................................................................................. JA8221 Dkt. 8934-1, Supplemental Declaration of Brian T. Fitzpatrick, filed Nov. 17, 2017 .................................................................................................. JA8267 Dkt. 8937, Plaintiffs’ Motion for Leave To File Sur-Reply CounterDeclaration of Jason E. Luckasevic regarding: Fee Allocation, filed Nov. 21, 2017 ......................................................................................... JA8270 Dkt. 8945, Zimmerman Reed LLP’s Motion for Leave To File a SurReply Declaration regarding: Fee Allocation, filed Nov. 22, 2017 ......................................................................................... JA8274 Dkt. 8963, Pope McGlamry, P.C.’s Motion for Leave To File SurReply Declaration regarding: Fee Allocation, filed Nov. 28, 2017 ......................................................................................... JA8276 Dkt. 9508, Order Denying Motions for Leave To File Sur-Reply Declaration, filed Dec. 5, 2017 ....................................................................... JA8279 Dkt. 9510, Order Denying the Aldridge Objectors’ Motion To Compel Compliance with Case Management Order No. 5, filed Dec. 5, 2017 ........... JA8280 Dkt. 9526, Export Report of Professor William B. Rubenstein, filed Dec. 11, 2017 .......................................................................................... JA8281 Dkt. 9527, Receipt of Expert’s Report and Notice regarding: Rubenstein Report Responses, filed Dec. 11, 2017 ........................................ JA8376 xx Case: 18-2012 Document: 003113316607 Page: 24 Date Filed: 08/09/2019 Dkt. 9536, Aldridge Objectors’ Motion for Reconsideration regarding: Extension of Time for Rubenstein Report Responses Notice, filed Dec. 19, 2017 .......................................................................................... JA8378 Dkt. 9545, Response by the Locks Law Firm to Rubenstein Report, filed Jan. 2, 2018 ............................................................................................. JA8381 Dkt. 9547, Response by Goldberg, Persky and White, P.C.; Girardi Keese; and Russomanno & Borrello to Rubenstein Report, filed Jan. 3, 2018 ............................................................................................. JA8392 Dkt. 9548, Response by Anapol Weiss to Rubenstein Report, filed Jan. 3, 2018 ............................................................................................. JA8399 Dkt. 9549, Response by the Mokaram Law Firm; The Buckley Law Group; and The Stern Law Group to Rubenstein Report, filed Jan. 3, 2018 ............................................................................................. JA8402 Dkt. 9550, Response and Declaration of Robert A. Stein to Rubenstein Report, filed Jan. 3, 2018 ............................................................. JA8415 Dkt. 9551, Response by The Yerrid Law Firm and Neurocognitive Football Lawyers to Rubenstein Report, filed Jan. 3, 2018............................ JA8420 Dkt. 9552, Response by Co-Lead Class Counsel to Rubenstein Report, filed Jan. 3, 2018 ............................................................................................. JA8431 Dkt. 9552-1, Declaration of Christopher A. Seeger .................................. JA8443 Dkt. 9553, Zimmerman Reed LLP’s Joinder to the Response of the Locks Law Firm to the Rubenstein Report, filed Jan. 3, 2018 ....................... JA8455 Dkt. 9554, Response by the Aldridge Objectors to Rubenstein Report, filed Jan. 3, 2018 ............................................................................................. JA8457 Dkt. 9555, Notice of Joinder by Robins Cloud, LLP regarding: Responses to Rubenstein Report, filed Jan. 3, 2018 ....................................... JA8469 Dkt. 9556, Response by Class Counsel Podhurst Orseck, P.A. to Rubenstein Report, filed Jan. 3, 2018 ............................................................. JA8471 xxi Case: 18-2012 Document: 003113316607 Page: 25 Date Filed: 08/09/2019 Dkt. 9561, Order regarding: Appointment of Dennis R. Suplee to Represent pro se Settlement Class Members Where There Has Been a Demonstrated Need for Legal Counsel, filed January 8, 2018. ........ ............JA8476 Dkt. 9571, Reply of Professor William B. Rubenstein to Reponses to Expert Report, filed Jan. 19, 2018 .................................................................. JA8477 Dkt. 9576, Order Permitting Sur-Reply Filings in Response to Professor Rubenstein’s Reply, filed Jan. 23, 2018 ......................................... JA8493 Dkt. 9577, Mitnick Law Office’s First Motion To Compel, filed Jan 26, 2018 ............................................................................................ JA8494 Dkt. 9581, Memorandum of Law regarding: Sur-Reply of NFL, Inc., and NFL Properties LLC to Rubenstein’s Reply to Responses, filed Jan. 30, 2018 ........................................................................................... JA8498 Dkt. 9587, Notice by Plaintiff(s) regarding: Sur-Reply of X1Law to Rubenstein’s Reply to Responses, filed Jan. 30, 2018 ................................... JA8500 Dkt. 9588, Notice by Plaintiff(s) regarding: Aldridge Objectors’ SurReply to Rubenstein’s Reply to Responses, filed Jan. 30, 2018 .................... JA8506 Dkt. 9753-1, Exhibit A, Curriculum Vitae of Brian R. Ott, M.D. ............ JA8513 Dkt. 9753-2, Exhibit B, Curriculum Vitae of Mary Ellen Quiceno, M.D., F.A.A.N. .......................................................................................... JA8564 Dkt. 9757, Order regarding: Joint Application by Co-Lead Class Counsel and Counsel for the NFL and NFL Properties, LLC for Appointment of Two Appeals Advisory Panel Members and Removal of One Appeals Advisory Panel Member, filed Mar. 6, 2018............................................................................................ JA8577 Dkt. 9760, Order Adopting Rules Governing Attorney's Liens, filed Mar. 6, 2018 .. ................................................................................................. JA8581 Dkt. 9786, Class Counsel’s Motion To Appoint the Locks Law Firm as Administrative Class Counsel, filed Mar. 20, 2018 ................................... JA8603 Dkt. 9813, Pope McGlamry P.C.’s Motion for Joinder regarding: Administrative Class Counsel, filed Mar. 26, 2018........................................ JA8628 xxii Case: 18-2012 Document: 003113316607 Page: 26 Date Filed: 08/09/2019 Dkt. 9816, Motion for Joinder by Locks Law Firm regarding: Hearing To Correct Fundamental Implementation Failures in Claims Processing, filed Mar. 26, 2018 ...................................................................... JA8632 Dkt. 9819, Motion for Joinder by Provost Umphrey Law Firm, LLP regarding: Administrative Class Counsel, filed Mar. 27, 2018 ...................... JA8635 Dkt. 9820, Zimmerman Reed LLP’s Joinder in Request for Action To Correct Implementation Failures in the Claims and BAP Administration, filed Mar. 27, 2018 ............................................................... JA8638 Dkt. 9821, Motion for Joinder by McCorvey Law, LLC regarding: Administrative Class Counsel, filed Mar. 27, 2018........................................ JA8650 Dkt. 9824, Motion for Joinder by Lieff Cabraser Heinmann & Bernstein, LLP regarding: Hearing Request on Claims Settlement Process, filed Mar. 28, 2018 ........................................................................... JA8654 Dkt. 9829, Motion for Joinder by Law Office of Hakimi & Shahriari regarding: Administrative Class Counsel, filed Mar. 28, 2018 ...................... JA8659 Dkt. 9830, Motion for Joinder by Casey Gerry regarding: Administrative Class Counsel, filed Mar. 28, 2018........................................ JA8664 Dkt. 9831, Motion for Joinder by Podhurst Orseck regarding: Administrative Class Counsel, filed Mar. 29, 2018........................................ JA8667 Dkt. 9833, Order regarding: Hearing as to Allocation, filed Mar. 28, 2018 .......................................................................................... JA8671 Dkt. 9834, Motion for Joinder by Mitnick Law Office regarding: Administrative Class Counsel, filed Mar. 29, 2018........................................ JA8677 Dkt. 9835, Co-Lead Class Counsel’s Letter regarding: Administrative Class Counsel, filed Mar. 29, 2018 ................................................................. JA8683 Dkt. 9836, Motion for Joinder by Wyatt Law regarding: Administrative Class Counsel, filed Mar. 29, 2018........................................ JA8685 Dkt. 9837, Motion for Joinder by Robin Clouds LLP regarding: Administrative Class Counsel, filed Mar. 29, 2018 ........................................ JA8688 xxiii Case: 18-2012 Document: 003113316607 Page: 27 Date Filed: 08/09/2019 Dkt. 9838, Notice by the Locks Law Firm In Response to Request for Deadline for Joinders and Date of Response Motion, filed Mar. 29, 2018 .......................................................................................... JA8690 Dkt. 9839, Motion for Joinder by Anapol Weiss regarding: Hearing Request on Claims Settlement Process, filed Mar. 29, 2018 .......................... JA8691 Dkt. 9840, Notice by the Locks Law Firm in Response to Request for Deadline for Joinders and Date of Response to Motion, filed Mar. 30, 2018 .......................................................................................... JA8694 Dkt. 9842, Motion for Joinder by Kreindler & Kreindler LLP regarding: Administrative Class Counsel, filed Mar. 30, 2018 ...................... JA8696 Dkt. 9843, Motion for Joinder by the Yerrid Law Firm and Neurocognitive Football Lawyers, filed Mar. 30, 2018 ................................. JA8700 Dkt. 9845, Order Directing Filing of Motions for Joinder, filed Apr. 2, 2018 ............................................................................................ JA8720 Dkt. 9847, Notice by Robins Cloud LLP of Withdrawal of Joinder regarding: Administrative Class Counsel, filed Apr. 2, 2018 ........................ JA8722 Dkt. 9848, Motion for Joinder by the Locks Law Firm to Anapol Weiss’s Motion To Compel regarding: Reimbursement of Common Benefit Expenses and Establishment of Education Fund, filed Apr. 3, 2018 ............................................................................................ JA8724 Dkt. 9851, Notice by Lieff Cabraser Heinmann & Bernstein LLP of Withdrawal of Joinder regarding: Administrative Class Counsel, filed Apr. 3, 2018 ............................................................................................ JA8730 Dkt. 9852, Co-Lead Class Counsel’s Response to Motion for Joinder Seeking Court Intervention, filed Apr. 3, 2018 .............................................. JA8733 Dkt. 9853, Motion for Joinder by Hagen Rosskopf LLC regarding: Administrative Class Counsel, filed Apr. 3, 2018 .......................................... JA8736 Dkt. 9854, Motion for Joinder by Smith Stallworth PA regarding: Administrative Class Counsel, filed Apr. 3, 2018 .......................................... JA8741 xxiv Case: 18-2012 Document: 003113316607 Page: 28 Date Filed: 08/09/2019 Dkt. 9855, Motion for Joinder by Berkowitz and Hanna LLC regarding: Administrative Class Counsel and For a Hearing, filed Apr. 3, 2018 ............................................................................................ JA8743 Dkt. 9856, Motion for Joinder by Aldridge Objectors’ regarding: Administrative Class Counsel, filed Apr. 3, 2018 .......................................... JA8750 Dkt. 9856-1, Memorandum in Support of Movants’ Joinder in the Motion of Class Counsel, the Locks Law Firm, for Appointment of Administrative Class Counsel .................................................................... JA8752 Dkt. 9856-2, Exhibit A, Email correspondence dated Sept. 20, 2018 ............................................................................................ JA8761 Dkt. 9856-3, Exhibit B, Email correspondence dated Oct. 19, 2017 ........ JA8762 Dkt. 9856-4, Exhibit C, Email correspondence dated Feb. 19, 2018 ........ JA8764 Dkt. 9860, Memorandum of Hon. Anita Brody Granting Co-lead Counsel's Petition for Award of Attorneys' Fees and Reimbursement of Expenses, filed Apr. 5, 2018....................................................................... JA8766 Dkt. 9862, Memorandum Opinion regarding: Attorneys’ Fees, filed Apr. 5, 2018 .................................................................................................... JA8786 Dkt. 9865, Co-Lead Class Counsel’s Response to Motion regarding: Cost Reimbursement, filed Apr. 5, 2018 ........................................................ JA8796 Dkt. 9870, Claims Administrator’s Response to Locks Law Firm’s Motion for Partial Joinder, filed Apr. 9, 2018 ................................................ JA8802 Dkt. 9874, Co-Lead Class Counsel’s Notice regarding: Class Counsel’s Attorneys’ Fee Award, filed Apr. 11, 2018 ................................... JA8837 Dkt. 9881, Co-Lead Class Counsel’s Response to Locks Law Firm’s Motion for Partial Joinder, filed Apr. 13, 2018 .............................................. JA8839 Dkt. 9885, Co-Lead Class Counsel’s Response in Opposition regarding: Administrative Class Counsel, filed Apr. 13, 2018 ...................... JA8847 Dkt. 9890, Order Denying the Motion of Class Counsel Locks Law Firm for Appointment of Administrative Class Counsel, filed Apr. 18, 2018 .......................................................................................... JA8884 xxv Case: 18-2012 Document: 003113316607 Page: 29 Date Filed: 08/09/2019 Dkt. 9920, Tarricone Declaration regarding: Mar. 28, 2018 Order, filed May 1, 2018 ............................................................................................ JA8886 Dkt. 9921, Locks Law Firm’s Motion for Reconsideration of the Denial of the Locks Law Firm’s Motion for Appointment of Administrative Class Counsel, filed May 1, 2018 .......................................... JA8891 Dkt. 9926, Aldridge Objectors’ Motion for New Trial, filed May 2, 2018 ............................................................................................ JA8906 Dkt. 9955, Order Directing Firms Seeking Attorneys’ Fees To File Materials, filed May 3, 2018 ........................................................................... JA8908 Dkt. 9970, Amended Order for Hearing, filed May 7, 2018 .......................... JA8910 Dkt. 9985, Order Denying the Motion for Entry of Case Management Order Governing Applications for Attorneys’ Fees; Cost Reimbursements; and Further Fee Set-Aside, filed May 14, 2018 .......................................................................................... JA8912 Dkt. 9990, Declaration by Mitnick Law Office regarding: Independent Fee Petition, filed May 14, 2018 ..................................................................... JA8913 Dkt. 9993, Co-Lead Class Counsel’s Response in Opposition regarding: Motion for Reconsideration of Administrative Class Counsel, filed May 15, 2018 ........................................................................... JA8916 Dkt. 9995, Faneca Objectors’ Statement regarding: Improvements to Preliminarily-Approved Settlement, filed May 16, 2018 ............................... JA8921 Dkt. 9996, Co-Lead Class Counsel’s Response in Opposition regarding: Motion for New Trial, filed May 16, 2018 ................................... JA8925 Dkt. 10000, Co-Lead Class Counsel’s PowerPoint from May 15, 2018 Hearing, filed May 17, 2018 ........................................................................... JA8939 Dkt. 10001, Anapol Weiss’s Motion for Leave To File Supplemental Memorandum regarding: Allocation of Common Benefit Fees, filed May 17, 2018 .......................................................................................... JA8954 Dkt. 10004, Order regarding: Hearing Concerning Attorneys’ Fees, filed May 21, 2018 .......................................................................................... JA8961 xxvi Case: 18-2012 Document: 003113316607 Page: 30 Date Filed: 08/09/2019 Dkt. 10007, Order Denying Anapol Weiss’ Motion for Leave To File Supplemental Memorandum regarding: Allocation of Common Benefit Fees, filed May 21, 2018 .................................................................... JA8963 Dkt. 10016, Letter Brief by the Locks Law Firm, filed May 22, 2018 .......................................................................................... JA8964 Dkt. 10017, Co-Lead Class Counsel’s Response regarding: Locks Law Firm’s Letter Brief, filed May 23, 2018 ................................................. JA8968 Dkt. 10019, Explanation and Order of Judge Brody re Allocation of Attorneys' Fees, filed May 24, 2018 .. ............................................................ JA8971 Dkt. 10022, Aldridge Objectors’ Motion To Stay regarding: Attorneys’ Fees Allocation, filed May 25, 2018 ............................................ JA8998 Dkt. 10023, Order Finding as Moot Motion To Strike Class Counsel’s Sur-Reply regarding: Fee Allocation, filed May 29, 2018 ............................. JA9000 Dkt. 10026, Co-Lead Class Counsel’s Response regarding: Mitnick Law Office’s Petition for Independent Award of Attorneys’ Fees, filed May 29, 2018 .......................................................................................... JA9001 Dkt. 10031, Co-Lead Class Counsel’s Response in Opposition regarding: Aldridge Objectors’ Motion To Stay, filed May 31, 2018 ............ JA9004 Dkt. 10039, Aldridge Objectors’ Reply to Response to Motion regarding: Motion To Stay, filed June 1, 2018 .............................................. JA9015 Dkt. 10073, The Locks Law Firm’s Motion for Reconsideration of the Court’s Explanation and Order, filed June 7, 2018 ........................................ JA9025 Dkt. 10085, Order Denying as Moot the Aldridge Objectors’ Motion To Reconsider Withdrawal of Fed. R. Evid. 706 Deposition, filed June 19, 2018 .......................................................................................... JA9034 Dkt. 10086, Order Denying as Moot the Motion Requesting the Court To Direct the Relevant Parties To Negotiate on the Allocations of the Common Benefit Fund, filed June 19, 2018 ................................................... JA9035 Dkt. 10091, Co-Lead Class Counsel’s Response in Opposition regarding: the Locks Law Firm’s Motion for Reconsideration, filed June 19, 2018 .......................................................................................... JA9036 xxvii Case: 18-2012 Document: 003113316607 Page: 31 Date Filed: 08/09/2019 Dkt. 10096, Faneca Objectors’ Notice of Filing Hearing Slides, filed June 22, 2018 .......................................................................................... JA9042 Dkt. 10105, Certified Copy of Order from the USCA, filed June 28, 2018 .......................................................................................... JA9048 Dkt. 10119, Order Denying Motion for Reconsideration of the Denial of Locks Law Firm’s Motion for Appointment of Administrative Class Counsel, filed July 2, 2018 .................................................................... JA9049 Dkt. 10127, Order Denying Motion for Reconsideration of the Court's Explanation and Order ECF Nos. 10072 and 10073, filed July 10, 2018 .. .............................................................................................................. JA9051 Dkt. 10128, First Verified Petition of Co-Lead Class Counsel Christopher A. Seeger for an Award of Post-Effective Date Common Benefit Attorneys’ Fees and Costs, filed July 10, 2018 ................................. JA9052 Dkt. 10134, Transcript of May 15, 2018 Hearing, filed July 13, 2018 ........................................................................................... JA9073 Dkt. 10145, Status Report of Co-Lead Class Counsel, filed July 18, 2018 ........................................................................................... JA9198 Dkt. 10165, Aldridge Objectors’ Objections regarding: Post-Effective Date Fees, filed July 24, 2018 ......................................................................... JA9205 Dkt. 10165-1, Exhibit 1, Declaration of Christopher A. Seeger ............... JA9221 Dkt. 10165-2, Exhibit 2, Letter from Craig R. Mitnick to Judge Brody dated Apr. 16, 2018 ................................................................... JA9224 Dkt. 10165-3, Text of Proposed Order ...................................................... JA9229 Dkt. 10188, Notice of Appeal of Locks Law Firm from the May 24, 2108 Explanation and Order ECF No. 10019, filed August 2, 2018.............. JA9230 Dkt. 10261, Zimmerman Reed LLP’s Objection regarding: PostEffective Date Fees, filed Sept. 18, 2018 ....................................................... JA9233 Dkt. 10278, Declaration of Christopher A. Seeger regarding: PostEffective Date Fees, filed Sept. 27, 2018 ....................................................... JA9242 xxviii Case: 18-2012 Document: 003113316607 Page: 32 Date Filed: 08/09/2019 Dkt. 10283, Order Adopting Amended Rules Governing Attorneys' Liens, filed Oct. 3, 2018 ................................................................................. JA9248 Dkt. 10294, Order Adopting Amended Rules Governing Petitions for Deviation from the Fee Cap, filed Oct. 10, 2018............................................ JA9272 Dkt. 10368, Report and Recommendation of Magistrate Judge Strawbridge, filed January 7, 2109 .. .............................................................. JA9290 Dkt. 10374, Second Verified Petition of Co-Lead Class Counsel Seeger for Award of Post-Effective Date Common Benefit Attorneys Fees and Costs, filed January 10, 2109 .. ........................................................ JA9383 Dkt. 10624, Order regarding: Vacating appointments of all Class Counsel, Co-Lead Class Counsel, and Subclass Counsel and Reappointing Christopher A. Seeger as Class Counsel, filed May, 24, 2019 ................................................................................................................. JA9402 Dkt. 10677, Report and Recommendation of Magistrate Strawbridge, filed June 20, 2109 ......................................................................................... JA9404 Dkt. 10756-1, David Buckley, PLLC, Mokaram Law Firm and Stern Law Group’s Petition to Establish Attorney's Lien, filed July 18, 2019 .. .............................................................................................................. JA9425 Dkt. 10767, Third Verified Petition of Class Counsel Seeger for Award of Post-Effective Date Common Benefit Attorneys Fees and Costs, filed July 25, 2109 ............................................................................... JA9428 xxix Case: 18-2012 Document: 003113316607 Page: 33 Date Filed: 08/09/2019 [Pa.R.A.P. 30(d) listing of pages from Dkt. 10134 Transcript of May 15, 2018 Hearing, filed July 13, 2018: pages 1 - 124] JA9073 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed34 07/13/18 Date Page Filed: 108/09/2019 of 124 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS’ CONCUSSION INJURY LITIGATION Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, Plaintiffs, vs. National Football League and NFL Properties, LLC, successor-in-interest to NFL Properties, Inc., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 12-MDL-2323-AB Philadelphia, PA May 15, 2018 10:11 a.m. TRANSCRIPT OF HEARING BEFORE THE HONORABLE ANITA B. BRODY UNITED STATES DISTRICT JUDGE APPEARANCES: For Kevin Turner, et al: CHRISTOPHER S. SEEGER, ESQUIRE SEEGER WEISS, LLP 6th Floor 55 Challenger Road Ridgefield, NJ 07660 For Plaintiffs Ron Solt, et al.: GENE LOCKS, ESQUIRE LOCKS LAW FIRM 37th Floor 747 Third Avenue New York New York 10017 For Plaintiffs Mravin Jones, et al.: STEVEN C. MARKS, ESQUIRE PODHURST ORSECK, P.A. Sun Trust International Center STE 2300 One S.E. 3rd Avenue Miami, FLORIDA 33131 JA9074 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed35 07/13/18 Date Page Filed: 208/09/2019 of 124 2 APPEARANCES: Continued For Plaintiffs Charles R. Easterling, et al.: LARRY E. COBEN, ESQUIRE ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN & SMALLEY, P.C. 1701 Spruce Street Philadelphia, PA 19103 For Plaintiffs Jay Taylor, et al.: SOL H. WEISS, ESQUIRE ANAPOL, SCHWARTZ, WEISS, COHAN, FELDMAN & SMALLEY, P.C. 1701 Spruce Street Philadelphia, PA 19103 For Plaintiffs Dorsey Levens, et al.: MICHAEL McGLAMRY, ESQUIRE POPE, MCGLAMRY, KILPATRICK, MORRISON, & NORWOOD, LLP STE 300 Lenox Overlook 3391 Peachtree Road Atlanta, GA 30326 BRUCE A. HAGEN, ESQUIRE BRUCE A. HAGEN, P.C. 119 North McDonough Street Decatur, GA 30030 For Plaintiffs Floyd Little, et al.: J. GORDON RUDD, ESQUIRE ZIMMERMAN REED, PLLP 1100 IDS Center 80 South 8th Street Minneapolis, MN 55402 For the Plaintiffs Greg Landry, et al.: CRAIG R. MITNICK, ESQUIRE MITNICK LAW OFFICE, LLC 35 Kings Highway East Haddonfield, NJ 08033 For the Plaintiffs George Adams, et al.: ANTHONY TARRICONE, ESQUIRE KREINDLER & KREINDLER 277 Dartmouth Street 3rd Floor Boston, MA 02116 For the Plaintiffs Michael Brooks, et al.: DERRIEL MCCORVEY, ESQUIRE MCCORVEY LAW, LLC 102 Versailles Boulevard Suite 620 P.O. Box 2473 Lafayette, LA 70502 JA9075 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed36 07/13/18 Date Page Filed: 308/09/2019 of 124 3 APPEARANCES: Continued For the Objectors Roderick Cartwright, et al.: STEVEN F. MOLO, ESQUIRE MOLOLAMKEN, LLP 430 Park Avenue New York, NY 10022 For the Objectors Roderick Cartwright, et al.: ERIC R. NITZ, ESQUIRE MOLOLAMKEN, LLP 600 New Hampshire Avenue, NW Suite 600 Washington, DC 20037 For the Alexander Objectors: LANCE H. LUBEL, ESQUIRE LUBEL VOYLES, LLP 675 Bering Drive Suite 850 Houston, TX 77057 Audio Operator: JAMES F.G. SCHEIDT Transcribed by: DIANA DOMAN TRANSCRIBING, LLC P.O. Box 129 Gibbsboro, New Jersey 08026 Office: (856) 435-7172 Fax: (856) 435-7124 Email: dianadoman@comcast.net Proceedings recorded by electronic sound recording, transcript produced by transcription service. JA9076 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed37 07/13/18 Date Page Filed: 408/09/2019 of 124 4 I N D E X 1 2 POWERPOINT PRESENTATION 3 Mr. Seeger PAGE 6 4 5 ARGUMENTS: PAGE 6 By Mr. Weiss 27 7 By Mr. Coben 30 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Response by Mr. Seeger 32 By Mr. Locks 34 By Professor Wolff 35 Response by Mr. Seeger By Mr. Marks 41 46 Response by Mr. Seeger By Mr. McGlamry 55 56 Response by Mr. Seeger By Mr. Hagen 60 63 Response by Mr. Seeger By Mr. Mitnick 71 72 Response by Mr. Seeger By Mr. Tarricone 76 77 Response by Mr. Seeger By Mr. Rudd 83 85 General response by Mr. Seeger By Mr. McCorvey 92 96 25 JA9077 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed38 07/13/18 Date Page Filed: 508/09/2019 of 124 5 I N D E X Continued 1 2 3 ARGUMENTS: PAGE 4 By Mr. Molo 102 5 6 7 Response by Mr. Seeger By Mr. Lubel 112 113 Response by Mr. Seeger 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JA9078 120 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed39 07/13/18 Date Page Filed: 608/09/2019 of 124 Seeger - Presentation 1 (The following was heard at 10:11 a.m.) 2 THE COURT: Wow. Okay. Okay. I hope all of you don't 3 expect to get paid. 4 We're here in the matter In Re National Football League 5 Players Concussion Injury Litigation, at 2012-2323, and -- 6 that's it. And I think I have a map. 7 All right. 8 MR. SEEGER: 9 have a really short PowerPoint. 10 11 12 Thank you, Your Honor. Your Honor, I And I expect my comments to probably go about 15 minutes. THE COURT: Okay. That's fine. And I have it here, so I won't be looking at you. MR. SEEGER: 14 THE COURT: 15 MR. SEEGER: Yes. 16 THE COURT: Okay. 18 Okay. Mr Seeger, why don't you begin? 13 17 6 I'm going to also hand you a copy -A hard copy? Thank you. I'll be looking at -- I have a screen. MR. SEEGER: No problem. And I think I've got a 19 clicker working, so I'm going to go ahead and get started, 20 Your Honor. 21 THE COURT: 22 MR. SEEGER: Good. Your Honor, I believe I speak for 23 everybody when I say generally that this is a -- I'm really 24 unaware of any other settlement that has -- that is more 25 innovative, in the sense that it has created at 65-year JA9079 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed40 07/13/18 Date Page Filed: 708/09/2019 of 124 Seeger - Presentation 1 7 program. 2 It compensates injuries in living players who cannot 3 be diagnosed during their lifetimes of certain injuries. 4 groundbreaking, has brought more social good in the term -- in 5 terms of recognitions of mild traumatic brain injuries caused 6 by concussions. 7 important. 8 9 More And more transparent, which is incredibly As you know, Your Honor, we have tried to put everything related to this settlement, the ground rules, 10 everything out there, so class members who are represented by 11 counsel, or anyone else, understands what's going on. 12 a lot of pride in that, and I think I can speak for everybody 13 in the courtroom who is involved in this, they take a lot of 14 pride in that. 15 I take But, you know, we are here today, obviously, to 16 discuss attorney's fees, so I am going to try to go through a 17 very brief presentation on a little bit about the case, the 18 context of the case, my thinking in terms of making the 19 recommendations to Your Honor. 20 recommendations. 21 is on these. 22 Which, by the way, are merely Obviously, I'm not the final word, the Court So I will go ahead and begin with that. Your Honor, 23 as you know we -- this MDL was formed in 2012. 24 a number of unique challenges that we faced early on. 25 were complex and evolving scientific issues. JA9080 And there were There The science Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed41 07/13/18 Date Page Filed: 808/09/2019 of 124 Seeger - Presentation 1 surrounding CTE, and the brain injuries, and the disease sets 2 that are associated with it. 3 4 5 THE COURT: part of the record. I'm going to put this -- Jim, this is Okay. MR. SEEGER: There were significant legal issues, as 6 Your Honor knows, because the first one that we confronted 7 here was the issue of preemption, because many players were 8 covered by a collective bargaining agreement. 9 that issue, many thousands of players would have been out. 10 8 Had we lost There was substantial alternative causation issues 11 and other defenses that could have been raised by the NLF, and 12 Statute of Limitations issues. 13 Many of which -- almost all, except for players who 14 died with CTE prior to 2006 have really been waived by the NFL 15 in this settlement. 16 point this out because it's very important to the way -- to 17 the reason we're here today. 18 It was a novel litigation course, and I In many MDLs there were Bellwether trials, there are 19 discovery committees, there are law and briefing committees. 20 We usually form big PSCs, and a lot of that work is done 21 because many of these things lead to trial. 22 And, in fact, had there been trials in this case, I 23 can tell you there are a number of amazing trial lawyers n 24 this courtroom that would have had a substantial amount of 25 work, and would have done, no doubt, great work. JA9081 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed42 07/13/18 Date Page Filed: 908/09/2019 of 124 Seeger - Presentation 1 But it didn't go that way. Discovery was stayed in 2 this case pending the preemption issue. 3 at risk on preemption. 4 the perfect conditions for a settlement. 5 were. 6 Both sides had a lot The NFL did, and we did. Which sets And that's where we The circumstances of this case really dictated the 7 early resolution, and the course that it took. 8 on the settlement, we had negotiated for many months before 9 Your Honor appointed Layn Phillips, Judge Phillips to come in 10 9 Just to focus and assist us. 11 And after he assisted us, in August -- on August 12 29th, 2013, we came to terms on a term sheet. 13 sheet, we negotiated for many months to come up with a 14 settlement agreement. 15 settlement agreement, because it was presented to Your Honor, 16 and you rejected that. 17 After the term And Your Honor's very aware of that You sent us back to the negotiating table. And for 18 many months around-the-clock negotiations tweaking the deal 19 and trying to get the NFL to where they ultimately are, which 20 is an uncapped settlement, which benefits the entire class. 21 I think we know, looking at the numbers and the 22 awards that are paid out, that that was obviously the right 23 move for the class. 24 here. 25 it. And then I've got some other benchmarks Final approval April 22nd, 2015, Third Circuit affirmed April 18th, 2016 and the United States Supreme Court JA9082 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 43 07/13/18 DatePage Filed:10 08/09/2019 of 124 Seeger - Presentation 1 denied cert in December of 2016. 2 Now this is also important to the context of how the 3 fees -- and my approach to fees. 4 that the way this case was going to settle was going to be a 5 Rule 23 Class Action. 6 it was a personal injury MDL. 7 It was very clear early on The complicating factor there is that There were a number of cases out there that 8 presented many challenges, for good reason. 9 of AmChem or Ortiz, or the Court cases that came before it, I'm not critical 10 but they dictated the way to do these things. 11 years lawyers had not been able to pull off personal injury 12 class action settlements because of those cases. 13 Putting aside Diet Drugs. And for many Diet Drugs in many ways 14 laid the framework for this case. 15 problems. 16 perceived by the plaintiffs as far as a problem, but by the 17 defense Bar it was. 18 10 Now it presented also Diet Drugs had a back-end opt out, which was not And defense lawyers for many years ran away from 19 class action settlements and the concept that the only way to 20 get around AmChem would be to allow people to opt out of the 21 class action settlement years after it was approved. 22 We avoided that in this case by uncapping the deal. 23 So there is no back-end opt out, there's a piece, but there's 24 going to be more than enough money to compensate every player 25 who is entitled to compensation. JA9083 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 44 07/13/18 DatePage Filed:11 08/09/2019 of 124 Seeger - Presentation 1 11 The BAP program I'd like to talk about a little bit, 2 is really groundbreaking in many respects. 3 medical monitoring program, it's more than that. 4 and created our own health management network of doctors, both 5 for the BAP and the MAF. 6 country to be there for players, to do these BAP exams. 7 they're paid by the settlement. 8 9 It's not just a We went out We recruited doctors around the And Thank you for that. The whole idea of that was to catch impairment early. Obviously we knew people going through the BAP program 10 may not have neurocognitive injuries that would be diagnosed 11 that would lead to monetary compensation. 12 But the idea was that, if players were starting down 13 that degenerative path, we would get to them early with the 14 testing, and get them to counseling, and get them into the 15 healthcare system. 16 And that included all kinds of things, not just 17 neurocognitive, but mood, anxiety and depressions -- 18 depression issues we were hoping would be caught in the BAP 19 program, even though they may not rise to the level of a 20 qualifying diagnosis. 21 Also, importantly, players have the option of 22 volunteering the result of their neurocognitive tests in the 23 BAP. 24 know, twelve, 13,000 players that will be eligible for the 25 BAP, to make that available to science, so that something That provides potentially a database of tens of -- you JA9084 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 45 07/13/18 DatePage Filed:12 08/09/2019 of 124 Seeger - Presentation 1 really good comes out of this, that we understand more about 2 CTE, more about brain injuries resulting from concussions. 3 These are all important things that you don't see in 4 most class action settlements, but we have it here. 5 have a lien resolution program that provides for substantial 6 discounts. 7 12 We also And what we did there, is we took the power of the 8 pot, this big pot we have for the settlement, we took all 9 these claims that are aggregated in this class action, and we 10 went to the Government and negotiated substantial discounts 11 for every player who was going to get a monetary award, on 12 their behalf. 13 We've done that for them. Now I understand from the time that an MAF award is 14 granted and the time those liens are worked out, they're still 15 -- still taking several weeks to do that. But we're picking 16 up the pace, we're getting faster with it. It's a 65-year 17 program, we're in the first year of the 65-year program. 18 And because it was an innovative -- you know, we 19 needed an -- an innovative program that would survive muster 20 under Rule 23 at the Third Circuit, and at the Supreme Court 21 potentially. 22 We knew there would be objectors. Some objectors are here today seeking fees. I had - 23 - I thought as lead counsel -- co-lead counsel, it was 24 important, and there was no objection by anybody -- any of the 25 class counsel at the time, to recruit to our team, and we had JA9085 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 46 07/13/18 DatePage Filed:13 08/09/2019 of 124 Seeger - Presentation 1 a good team. 2 experience in class actions; Sol Weiss; Gene Locks; all 3 fantastic lawyers. 4 respect. 5 13 I was on the team; Steve Marks, who has I don't criticize their skill in any I have nothing but the utmost respect for them. And they had experience in Rule 23, but I don't 6 think, like the people we brought onto the team who all of us 7 through would make a substantial contribution. 8 Issacharoff, for example, who is a -- Bonnie and Richard 9 Reiss, professor of constitutional law at NYU has argued 10 Professor Sam numerous cases in the Third Circuit. Sullivan v. DB Investments. 11 He was involved in the 12 BP litigation. 13 protecting settlements like this on appeal. 14 necessary component to this. 15 this courtroom disputes the quality and what he brought to the 16 team. 17 He was involved in many of these things And I don't think anybody in Arnold Levin was lead counsel in the Diet Drugs 18 litigation, and help craft that settlement. 19 and extensive experience in class actions. 20 today, Your Honor. 21 He was a Very familiar -Arnold's here And was an invaluable member of the team. Dianne Nast has substantial experience with Rule 23, 22 antitrust, securities cases. 23 with personal injury cases. 24 brought to the team that complemented what we had, and really 25 helped advance. JA9086 She has substantial experience So these were people that we Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 47 07/13/18 DatePage Filed:14 08/09/2019 of 124 Seeger - Presentation 1 And I think Your Honor has recognized this in your 2 decisions. 3 Honor, you mentioned: 4 5 14 On the April 5th decision that you wrote, Your "The performance of class counsel regarding this complex settlement agreement has been extraordinary." 6 And then you say: 7 "Perhaps the strongest factor weighing in favor of 8 acceptance of class counsel's fee requests is the final factor 9 that takes into account the innovative terms of this 10 settlement." 11 And that was recognized by Your Honor. 12 THE COURT: 13 MR. SEEGER: 14 THE COURT: I might add -Yeah. -- that I was in on -- I was privy to 15 many of these. 16 get class certification, my evaluation was the NFL might never 17 have gone along with it. 18 think you have to take into consideration. 19 you -- that you did what you did, and moved it the way you 20 did, really was -- was a very, very substantial factor. 21 22 And one of the issues was that if this did not MR. SEEGER: That the fact that And, Your Honor, just -- not to do too much brown-nosing here, but Your Honor took -- 23 THE COURT: 24 MR. SEEGER: 25 So that -- that's something that I Oh, that's okay. It's okay? Your Honor took her responsibility as a fiduciary for the class very seriously JA9087 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 48 07/13/18 DatePage Filed:15 08/09/2019 of 124 Seeger - Presentation 1 from day one. 2 you called the parties in the back and you said there were 3 issues here, and you need to talk. 4 talk. 5 very much aware of what was going on. 6 15 I believe it was the initial conference when And you sent people out to And we reported to you, both sides did, and you were You also have recruited highly experienced people to 7 help you oversee this. 8 helped with the first version. 9 Galkin (phonetic), who helped with the renegotiation that led 10 You appointed Judge Phillips, who You appointed then Perry to the uncapped settlement. 11 And the two Special Masters that are overseeing the 12 settlement right now, Wendell Pritchett and JoAnn Verrier are 13 doing outstanding work, and I'm sure that you would hear that 14 from everybody in this courtroom. 15 The Third circuit also noted that the settlement 16 will provide a billion dollars in value to the class of 17 retired players. 18 researchers, and advocates who have worked to expose the true 19 human costs of a sport so many love. 20 It's a testament to the players, Which is true, and I agree with that, but it also 21 points out a really interesting dynamic that this case is 22 under a microscope, and rightfully so. 23 It involves probably the biggest sport in America. 24 Players who become beloved figures in families who people grow 25 up watching, and now they're in need of assistance. JA9088 So just Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 49 07/13/18 DatePage Filed:16 08/09/2019 of 124 Seeger - Presentation 1 to discuss the settlement participation, just really briefly 2 again. 3 period. 4 everything we asked for, and the NFL didn't get everything 5 they asked for. It was obviously important, we had a registration Look, a settlement is a give and take. 6 We didn't get There was a time line to get players registered. 7 had six months to make sure this class and the players 8 participated in this settlement. 9 the criticisms of class actions, and it's legit, is that the 10 16 We Because, as you know, one of class members sometimes don't participate. 11 We couldn't allow that to happen. We did -- we 12 reviewed every case out there, and we saw relatively low 13 participation rates in many class actions. 14 were determined to get out there and make sure it didn't 15 happen. 16 of radio interviews. 17 players. So in this one, we We did town hall meetings, television and all kinds 18 Conference calls with hundreds of Targeting of key market areas in advance of 19 registration, where we would be able to go in and talk to, 20 maybe sometimes ten players in the room, sometimes 200 players 21 in the room. 22 to each other. 23 But they're such a cohesive group that they talk Those results paid off. 24 registrations. 25 claimants. We have over 20,000 total 15,982 retired players, 3,200 representative So participation rates that are driving the JA9089 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 50 07/13/18 DatePage Filed:17 08/09/2019 of 124 Seeger - Presentation 1 numbers that I'm going to talk about now. 2 we have -- and -- and, Judge, I have to acknowledge we were 3 off to a slow start. 4 17 The monetary awards I think many people in this room understand the 5 issue. There were come claims that were coming in, you know, 6 several hundred early on that were being marked for being sus 7 -- with having suspicious activity. 8 9 I don't want to use the word fraud, because I'm not sure that's an appropriate word in this context. But there 10 were some suspicious claims coming through. 11 slowed down the scoring on the dementia claims. 12 the pace on everything else, but we fell behind a little bit. 13 Now that's back on track. 14 That really We picked up And I think we have over 100 dementia claims scored, 15 and they're being scored -- every day we're seeing new MAF 16 awards for dementia claims. 17 To date we have 411 monetary award fund notices 18 totaling over $423 million that has been approved for payment. 19 It is not all out the door, unfortunately. 20 reconcile. 21 be held back. 22 We have liens to There are issues with attorney's fees that have to But there are things -- it's starting to really 23 move. But $423 million has been approved. 24 significance of that is that these awards have exceeded the 25 projections of both sides for the first ten years. JA9090 Now the We had Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 51 07/13/18 DatePage Filed:18 08/09/2019 of 124 Seeger - Presentation 1 projected around two hundred and something million in the 2 first three years to be paid out. 3 payment over $400 million. 4 We've already approved for That's a success, and it's a success in every 5 respect. 6 that the settlement was delayed because of the appeals, more 7 players went out and got pre-effective date diagnoses. 8 maybe that's front-loaded a little bit, but we're encouraged 9 that it's going to be much higher than we anticipated. 10 It could mean that these -- in the amount of time So The BAP examinations are important, because we've 11 got over 12,000 who are eligible. 12 scheduled for an appointment. 13 18 4,000 are currently 2,400 NFL football players with reports from at 14 least one examination, and we see the results of the BAP, not 15 only paying off in terms of players finding out, and many of 16 them getting the comfort of knowing that they're testing 17 normal or above normal, but for ones where we're finding 18 impairment, we already have 18 who've been identified as a 19 level one neurocognitive impairment, 28 who should be 20 receiving monetary awards, 1.5 neurocognitive impairment; and 21 16 also eligible for monetary awards for level two. 22 Also, and I'll do this quickly, the first year 23 settlement results since the effective date. You know we've 24 had a number of projects we had to deal with. There were a 25 number of players and others who had been making JA9091 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 52 07/13/18 DatePage Filed:19 08/09/2019 of 124 Seeger - Presentation 1 misrepresentations about the settlement. 2 Your Honor getting corrective statements filed. 3 19 We were here with We have taken on, for better or worse, litigation 4 funding abuses. 5 with that. 6 NFL on appeals, and in many of the ones that we won, we've won 7 substantial concessions. 8 9 As you know, Your Honor, we're very active In addition to that, we have had to fight with the For example, for a favorable interpretations of the rules, the definition of generally consistent, which is the 10 second bullet pont there, Your Honor, is very important. 11 we allowed for pre-effective date diagnoses, it was important 12 that people could go to their own doctor, get that diagnosis, 13 and have it be honored in the settlement. 14 When We got some push-back from the NFL that wanted to 15 interpret generally consistent as meaning you'd have the same 16 outcome as if you were given a BAP test. 17 was intended. 18 But that's not what It was intended that you'd be able to take the 19 documentation from that doctor, and as long as it was close, 20 the testing was close to what we had in the BAP, it would be 21 honored. 22 briefed it, and the Special Masters ruled in our favor. 23 And we won that with the Special Masters. We The definition of eligible season is a huge -- a 24 huge point here. The NFL's position was the only players who 25 would get credit for an eligible season were the 45 who suited JA9092 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 53 07/13/18 DatePage Filed:20 08/09/2019 of 124 Seeger - Presentation 1 up on game day. 2 20 But the night before, there were 53 players. So we took the position that you practiced all week, 3 you were getting hit in the head all week, you were playing 4 hard, you should get credit for it. 5 And as Your Honor knows, we succeeded on that point, 6 which has now opened up for hundreds of players the ability to 7 get more credit for eligible seasons, more money, and that's 8 very important. 9 The downgrading of claims. We had a situation in 10 the settlement where somebody applied for a level two, the AAP 11 doctors did not believe they could go ahead and downgrade them 12 to a level 1.5, even though they would be entitled to a level 13 1.5. 14 and have since had that corrected. 15 Obviously we pointed out the ridiculous nature of that, And with regard to the 88 plan, we've made it -- 16 they are -- players are now allowed to take their testing 17 results that they would have obtained from a doctor under the 18 88 plan, which is a plan covered by the collective bargaining 19 agreement of the NFL, and they could take those test results 20 and submit them to -- to the MAF. 21 22 23 THE COURT: Those are still -- that's still being worked out. MR. SEEGER: That's -- we have issues that are still 24 being worked out, because every time you think you've created 25 a rule, there's something you didn't anticipate, but we are -- JA9093 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 54 07/13/18 DatePage Filed:21 08/09/2019 of 124 Seeger - Presentation 1 21 we're dealing with it and watching it very closely. 2 And we've provided constant support for players and 3 the counsel. We've worked with many of the lawyers sitting in 4 the courtroom, helping them navigate some of the issues in the 5 settlement. 6 So I'll now turn to common benefit fees. 7 5, (phonetic) which was an early CMO that Your Honor entered, 8 we took it upon ourselves as co-lead counsel to collect all 9 the time and expenses from all counsel who wanted to seek -- 10 THE COURT: 11 MR. SEEGER: Under CMO- The expenses have been paid. The expenses have been paid, Your 12 Honor. 13 challenged it, and I understand there were people that are 14 unhappy with those challenges, but we made a decision as to 15 what time should be allowed and what expenses should be 16 allowed, and we submitted it to Your Honor. 17 We audited that time. In some instances we've You approved the overall fee on April 5th, but you 18 withheld decision on the five percent hold back. 19 dealing with that today. 20 So we're not On the allocation of attorney's fees among counsel, 21 I'd like to provide a little bit of my thinking. 22 it was -- this is just my perspective on it, I am not the 23 final decision-maker here, Your Honor is. 24 25 And, again, But you directed that recommendations be made by me. I did that. I -- I knew I believe first-hand everybody's JA9094 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 55 07/13/18 DatePage Filed:22 08/09/2019 of 124 Seeger - Presentation 22 1 contributions and what they did. 2 entries, as you know, that we submitted with the fee 3 application, the initial one, declarations that were signed by 4 each and everybody seeking a fee that lays out their 5 contribution as they saw it to the settlement. 6 I read through the time And I created these three areas that I thought were 7 important. But because it didn't follow the path of a typical 8 MDL with a lot of discovery, and motions, and pretrial work, 9 and trials, the buckets I created to be thought of were, if 10 you were appointed by Your Honor to be on the PSE, if you had 11 an appointed position, I thought that was important. 12 Your Honor screened everybody, and you appointed them. 13 Because Then the value of the engagement in the litigation, 14 which is obviously my opinion, but I -- I took that into 15 account, and I -- in some ways more importantly contributions 16 to the settlement. 17 Because when it became clear we were not going down 18 the path of trials, we were heading down the path of 19 settlement, then the issue became, what was the value of your 20 contribution in contributing to the result that we got? 21 On the -- page 12, I think this is a point worth 22 noting, and it's -- it's in our fee brief, and it's in Brian 23 -- 24 briefly. 25 as low as .75, which is less than a one. Professor Brian Fitzpatrick's declaration. I'll do this The range of multipliers that we have proposed goes JA9095 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 56 07/13/18 DatePage Filed:23 08/09/2019 of 124 Seeger - Presentation 1 23 And that was only applied to people who were not 2 court-appointed, and had done some work in the case. 3 can speak about each one and why I reduced it. 4 as high as 3.885, which I have asked for, for our firm, 5 obviously. 6 THE COURT: 7 MR. SEEGER: And I And it goes up That .75 has not been objected to? Well it's -- I don't want to say yes or 8 no off the -- because people are saying they want more, so I 9 don't know if the basis -- 10 THE COURT: 11 MR. SEEGER: 12 THE COURT: 13 MR. SEEGER: Okay. -- they want more -- so -All right. Okay. What's important to point out here is 14 that if you look at the brief -- the cases that we cite in the 15 brief that deal with this issue of the spread between the 16 lowest and the highest on counsel allocations, this is 17 actually a very, very reasonable spread. 18 Frankly, Your Honor, I have been involved in a 19 number of class actions on the -- where I haven't been lead 20 counsel, and we have received far less than a .75 sometime on 21 our time. 22 And as Professor Fitzpatrick points out, he cites to 23 several cases, just two I picked. 24 there was a range of .1 to 5.5 between lead counsel and the 25 lowest allocation, for a spread of 54 to 1. JA9096 The TFT-LCD case where Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 57 07/13/18 DatePage Filed:24 08/09/2019 of 124 Seeger - Presentation 24 In Re Vitamins antitrust there was a spread of 11 to 1 2 1 between the lead counsel and the lower people on the 3 tiering. 4 here. 5 happy, but I did everything I could to be as fair as possible 6 in this. 7 So my point is that there was a five to one spread I really gave every effort, I understand people are not And, again, just some more of my thinking. If you 8 received a two or more, it was my view that you were a leader 9 in the litigation, but also that you devoted substantial 10 11 efforts to securing and defending the settlement. If you were a mid-tier, which was sort of over 12 lodestar, but not a two, it was -- there were noticeable and 13 important contributions, I don't want to minimize anything 14 anyone has done. 15 people were unimportant in this case. 16 And these don't reflect my opinion that But that in terms of how people should be paid. it 17 was my view that that was worthy of less than a two. There 18 were a number of people that did very important work and we 19 gave straight lodestar to, which means they got paid their 20 hourly time. 21 And just to point out that when we're talking about 22 objections that relate to a two or a 2.5, we're talking about 23 2.5 times their hourly rate. 24 -- my view was, I thought they were fair. 25 discussed, there were some people we gave less than one to. JA9097 So it's -- I thought those were And then I Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 58 07/13/18 DatePage Filed:25 08/09/2019 of 124 Seeger - Presentation 1 2 And I -- I -- and if they get up and speak, I can address the specifics of what they -- 3 4 25 THE COURT: You can -- you'll be heard after each person gets up. 5 MR. SEEGER: All right, Your Honor. 6 And then, last, my last slide on this would be 7 available funds I just wanted you to be aware of. 8 original amount was 112,500, interest has been earned on that 9 amount since it's been sitting there for a few years now. 10 So the There were fees and taxes associated that have been paid. 11 Court approved expenses which have been paid out that Your 12 Honor approved for the counsel sitting in the courtroom. 13 Instead of awards for the outstanding work done by 14 the three class representatives, and I really can't say enough 15 about that, the class reps were the face of this case. 16 I mean, that's -- that was the way that the PR 17 scheme was setup. That it was never going to be about the 18 lawyers or their fees. 19 clients. It was always going to be about the 20 Kevin Turner, who didn't see this case to 21 completion, has passed away, you know, and in many respects I 22 think everybody would agree is the face of this. 23 Wooden, who has not been diagnosed, thankfully, with a 24 problem, to this day I talk to him every other day, who's a 25 class rep for the not yet diagnosed class, meets with people JA9098 Shawn Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 59 07/13/18 DatePage Filed:26 08/09/2019 of 124 Seeger Presentation 1 in Miami, makes phone calls to people, sends those people to 2 me when he doesn't have an answer for them. 3 And we assist. And he has been outstanding. 4 Corey Swinson, who was the class rep for the underclass, 5 passed away from a heart attack. 6 request for the awards for them for $100,000 each. 7 you for that, Your Honor. 8 9 26 And And you saw fit to grant our And thank It was very important. Also coming out of the account, and I think it's important for people sitting in the courtroom to know, were 10 not just the incentive awards, but we've appointed an attorney 11 to represent pro se's. 12 There was a portion of that that I have agreed would 13 be covered from this account, setting up the rules and 14 guidance regarding Statute of Limitations challenges, and he's 15 billed to this as well, and through April he's billed the 16 208,000, which leaves the balance that I show, and a total 17 available funds -- oh, I just need to point this out, it's in 18 our brief, but it's important. 19 $4 million expense account with the NFL to do notice and all 20 those things. 21 If money was left over, it could be rolled over to 22 this account. 23 bottom. 24 fees is $180,442,700.12. 25 On the escrowed funds we had a And that's what the 1.3 million is at the So the total amount that's available in the QSF for That's all I have for now, Your Honor. JA9099 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 60 07/13/18 DatePage Filed:27 08/09/2019 of 124 Weiss - Argument 1 THE COURT: 2 MR. SEEGER: 3 THE COURT: Okay. Thank you. Thank you very much. Okay. I think the 4 first person I'm going to recognize, the first firm is going 5 to Anapolis. 6 27 And, Jim, I have set ten minutes, and I'd like very 7 much to be sure that -- that that's accurately recorded. 8 Thank you very much. 9 MR. WEISS: Good morning, Your Honor. 10 THE COURT: Good morning. 11 MR. WEISS: Sol Weiss. 13 THE COURT: Yes. 14 MR. WEISS: And thank you for giving us 10 minutes. 12 Glad to see you again, Your Honor. 15 Would you like to hear from Mr. Coben as part of my 16 presentation, or not? 17 THE COURT: Whoever -- he's part of your firm? 18 MR. WEISS: Yes. 19 THE COURT: Oh, sure. 20 fine from your firm. 21 MR. WEISS: So I will leave some time for Mr. Coben. 22 THE COURT: Okay. 23 MR. WEISS: I'd like to start the presentation by Whoever you' like to speak is Good. 24 referring back to what Mr. Seeger pointed out. 25 have three buckets, roles in leadership, point at which the JA9100 And Chris did Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 61 07/13/18 DatePage Filed:28 08/09/2019 of 124 Weiss - Argument 1 firm's claimed common benefit contributions were made, and 2 contribution to the settlement. 3 Anapol Weiss fits in every one of those three buckets. 4 And I will tell you that And so I would like to again talk about with Chris 5 Seeger wrote about us. 6 elected, and then appointed by you as co-lead counsel. 7 28 We were appointed to the PEC and I was Larry Coben, my partner, was a member of the PEC. 8 And we contributed to the organization of the PEC and some of 9 its committees. I attended many, many settlement meetings and 10 mediations with the NFL. 11 negotiating the battery of tests for the BAP. 12 13 14 15 Mr. Coben and I were very active in And dealt with other matters relating to the medical issues undertaken in settlement. THE COURT: Okay. As I understand it, the recommendations to you is 2.5 multiplier, isn't that correct? 16 MR. WEISS: Correct. It is. 17 THE COURT: Do you have any objection to that? 18 MR. WEISS: I do. I think it should be higher, and 19 I'll tell you why. 20 we'll stick by our papers. 21 application later, but let me tell you why. 22 work with regard to the BAP. 23 So we did file, I believe, papers, and And we may file a supplemental We did a lot of We brought to the table Grant Iverson, that Mr. 24 Coben will talk about, who was very instrumental in getting 25 the testing protocols done for the BAP, making sure that T JA9101 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 62 07/13/18 DatePage Filed:29 08/09/2019 of 124 Weiss - Argument 29 1 scores -- evaluations were appropriate, and so that a fair 2 number of people who deserved to get compensated for 3 neurocognitive benefits were. 4 In addition to that, we had a 2,000 player database 5 that we created, with assists from a lot of the firms. 6 that database was given to the NFL when we actively involved 7 in negotiations. 8 9 10 11 And it gave a lot of information about the spread of ages of players, the symptoms they had, when they first developed some neurocognitive injuries. That was a very important tool, and it was used. 12 took months to do that. 13 my recommendation, we retained David Frederick, and you 14 remember he argued in front of Your Honor. 15 I was there for all of his prep. We also did work on preemption. 16 the briefs and give suggestions. 17 panel discussions. 18 And At We helped look at And we also went to the mock We also were involved in public relations that Mr. 19 Seeger talked about. 20 were important was to make sure for communications that it 21 wasn't about lawyers, but it was about players. 22 It And one of the things that we thought And so we helped recruit five or six different 23 families who became the face of the communication network 24 throughout the United States, and am happy to say that when we 25 started this program most people in the United States thought JA9102 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 63 07/13/18 DatePage Filed:30 08/09/2019 of 124 Coben - Argument 30 1 that the NFL players didn't deserve to be compensated or sue 2 the NFL, by August of 2012, that turned around and an ESPN 3 survey found that 70 percent of the people who took the survey 4 felt that the players were justified in suing the NFL. 5 And as Chris talked about, this helped shape not 6 only football, but women's soccer, lacrosse. 7 understanding of closed head injuries has grown exponentially 8 because of this litigation, and we are actively a part of that 9 effort. 10 11 And the So with that, I'm going to turn over my rest of my time to Mr. Coben. He'll talk about the science. 12 THE COURT: Okay. 13 MR. WEISS: Thank you, Your Honor. 14 THE COURT: Thank you. 15 MR. COBEN: Good morning, Your Honor. 16 THE COURT: Good morning, Mr. Coben. 17 MR. COBEN: Just very briefly. When I first had the 18 idea for this lawsuit, I met with a number of experts who were 19 key to issues. 20 with you, with the Easterling case, there were six plaintiffs 21 including Ray Easterling and Jim McMahon, and several others 22 of notoriety. 23 And Your Honor will recall when we first met And it was at that -- of course right before that is 24 when we created the whole idea of doing this by way of a 25 national lawsuit in concussion. JA9103 And to do that, we had to Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 64 07/13/18 DatePage Filed:31 08/09/2019 of 124 Coben - Argument 1 understand the issues both from liability and damage 2 standpoint. 3 And that was my role, since I've been involved in 4 head injury cases, individual cases for decades. 5 organized a team of experts, and that was critical, both to 6 looking at the liability issues and the damage issues. 7 that was my role primarily. 8 9 And so we And To hire and to work with people Thomas Gennarelli, who is a world renowned neurosurgeon, who's written book, 10 after book, after book. 11 opinion, from UCLA, and Chris Giza. David Hovda, who you cited in your 12 And we worked to develop, not just the liability 13 issues, but then when the case transitioned, to looking at 14 settlement issues. 15 We then used and worked with a gentleman named Grant 16 Iverson, who's only referenced as a footnote in some of the 17 briefs. 18 at Harvard. 19 developed all of the test modalities, along with Dr. Keilp 20 that Chris's firm hired. 21 31 Grant Iverson originally is from Vancouver. He's now He is a world renowned neuropsychologist. He Dr. Iverson always wanted to remain in the 22 background. But he actually -- I traveled to Vancouver, of 23 course I spent a lot of time with him, and then interacting 24 with Dr. Keilp, we then also then developed for the settlement 25 purposes for your guidance, the work of Dr. Hovda, Dr. Giza, JA9104 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 65 07/13/18 DatePage Filed:32 08/09/2019 of 124 Seeger - Argument 1 2 32 Fischer, and Dr. Hamilton. Those are the primary declarations that were 3 attached to explain both the nature of the phenomenal problems 4 confronting these players, as well as ways to measure their 5 losses and then to determine how to compensate. 6 So that was the primary issues -- once we got past 7 the master complaint, all of the legal issues to be worked 8 with, I think the thing I'm most proud of is having developed 9 the science that we could use and was incorporated into the 10 11 plan, and is so effectively working. I'm so proud that, even for instance with Mr. 12 Easterling, although he took his life two months before Junior 13 Isaiah, I'm very proud of that as well. 14 THE COURT: Okay. Thank you very much. 15 MR. COBEN: Thank you, Your Honor. 16 THE COURT: Okay. 17 MR. SEEGER: Your Honor, I have nothing but good 18 things to say about both Mr. Coben and Weiss. They worked 19 hard on the case, I appreciated their support and their help. 20 But, you know, again, going back to my analysis, 21 they had, in terms of the time that was reported, they had 22 $1.8 million in time. 23 and a half times that amount, which I thought was very fair 24 under the circumstances. 25 And I applied to that a multiple of two I don't really want to get into a situation here JA9105 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 66 07/13/18 DatePage Filed:33 08/09/2019 of 124 Locks - Argument 1 today where I'm picking on the nitty-gritty of whether this 2 person made a, you know, did this or did that. 3 Your Honor has questions for me about it, I will just simply 4 say that there were teams of people involved with experts. 5 33 I just, unless But when it came time to turn this thing into a 6 settlement, there were also a very -- a small group of highly 7 qualified people that were able to take those opinions and 8 shape them into what ultimately has become this settlement. 9 And although there was involvement by Mr. Coben and 10 Mr. Weiss, and others, it wasn't as substantial as the work 11 done by other people, frankly. 12 Even the work on the term sheet and the settlement 13 agreement, if you read it today, it was an around-the-clock 14 effort to write it, to rewrite it. 15 review drafts, it wasn't like they were there with us all day 16 and all night on this. And although Mr. Weiss did 17 So having said that -- as you also know that the 18 main expert for the case was Dr. Keilp from Columbia, who, 19 again, took many of these opinions by all these other great 20 experts and great work done by lawyers, there's no doubt, I 21 don't -- I don't think a 2.5 is me disparaging anything that 22 they have done in this case. 23 THE COURT: 24 MR. SEEGER: 25 THE COURT: No question about that. So I'll just rest on that, Your Honor. Okay. JA9106 Thank you. All right. Next Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 67 07/13/18 DatePage Filed:34 08/09/2019 of 124 Locks - Argument 34 1 person on the list is Mr. Locks. 2 want to announce, if you don't have any objection, I've asked 3 Mr. Locks to look into the third-party funders and to play a 4 special role in this litigation to try and resolve that. 5 Mr. Locks, I'll appreciate your effort. 6 don't you come forward? 7 MR. LOCKS: I want to tell you -- I do Okay? Okay. And, Why Your Honor, not knowing exactly the 8 format that you are going to follow today, we have our of 9 counsel, Professor Tobias Wolff here, who was going to address 10 11 12 13 14 the Court on our behalf concerning all of the issues -THE COURT: Oh, I thought you were going to argue -- is he part of your group? MR. LOCKS: Well he's been involved in every single issue involving fees and anything with fees. 15 THE COURT: Okay. 16 MR. LOCKS: And all the briefs. 17 THE COURT: I'll hear him. 18 MR. LOCKS: And he -- he's here to present. Okay. 19 Obviously, I can amplify on specific things, anything the 20 Court thinks is appropriate. 21 THE COURT: But is he going to talk about your role? 22 MR. LOCKS: Yes. 23 THE COURT: Okay. 24 MR. LOCKS: Yes. 25 THE COURT: Okay. JA9107 Just as long as he's familiar Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 68 07/13/18 DatePage Filed:35 08/09/2019 of 124 Wolff - Argument 1 35 with your role, I don't have any -- 2 MR. LOCKS: He's familiar with our role and he -- 3 THE COURT: And he participated with you? 4 MR. LOCKS: Yes. And he's also familiar to 5 recommend a process and procedure that we think is going to be 6 helpful to the Court. 7 THE COURT: 8 MR. SEEGER: 9 10 objecting. Okay. Thank you. All right. Your Honor, can I just ask -- I'm not Just for the record, Mr. Wolff -- Professor Wolff, I apologize, is not part of Mr. Locks' firm? 11 PROFESSOR WOLFF: 12 MR. SEEGER: 13 THE COURT: 14 PROFESSOR WOLFF: That's correct. Okay. You're not part of the law -I've been serving as counsel to 15 the firm as a formal matter for about a year and a half now, 16 but I'm not a member of the firm. 17 THE COURT: 18 not inform Mr. Locks. 19 obviously a problem. 20 speak. Because I had restricted it, but I did I did inform the two that were So I have no -- I'm going to let him 21 PROFESSOR WOLFF: 22 THE COURT: 23 24 25 Thank you, Judge. Okay. But you'd better introduce yourself, because I have no idea who you are. PROFESSOR WOLFF: name if Tobias Wolff. Yes, Your Honor. Your Honor, my I'm a member of the faculty at the JA9108 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 69 07/13/18 DatePage Filed:36 08/09/2019 of 124 Wolff - Argument 1 36 University of Pennsylvania Law School. 2 THE COURT: Oh, I do know you. 3 PROFESSOR WOLFF: You do. Indeed so, Your Honor. 4 It's a pleasure to have the opportunity to appear before you 5 today. 6 first is to make a couple of brief remarks about the 7 allocation that's specific to the Locks Law Firm. 8 I'd like to make some recommendations about a process and 9 about methodology. 10 And I'm going to do two things with my time. The And then And I'm going to pick up, actually, on several 11 things that Mr. Seeger said during his presentation, which I 12 think bear on that question of process and methodology. 13 first and foremost as to the Locks Law Firm, and the issue of 14 the multiplier that should be applied to Mr. Locks and his 15 colleagues. 16 Now The Locks Law Firm has been subjected to a much 17 lower multiplier than other class counsel. 18 of the firm, which I think is a reasonable one, is that their 19 multiplier should be commensurate with those of other class 20 counsel, certainly no less than the firms -- the multipliers 21 applied to Podhurst Orseck, or to Levin Sedran & Berman, which 22 is a two and a quarter multiplier. 23 And the position Locks Law Firm was one of the prime movers of this 24 litigation from the very beginning. 25 leadership from early stages, both in filing some of the JA9109 It was -- the firm showed Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 70 07/13/18 DatePage Filed:37 08/09/2019 of 124 Wolff - Argument 1 earliest cases, both individual cases and proposed class 2 actions, developing both the legal and the medical expertise 3 that would be necessary to conceptualize and frame these 4 cases. 5 Mr. Locks himself argued before the JPML for the 6 creation of this multi-district litigation process. 7 the formation of the MDL, the Locks Law Firm was one of the 8 core group of lawyers and firms involved in the creation of 9 the PSE, the creation of the PEC. And after The firm co-drafted the 10 personal injury master complaint, and the medical monitoring 11 master complaint. 12 37 And at every stage of this litigation, the firm has 13 represented more individual players than any other firm 14 involved in the proceeding. 15 As Mr. Seeger acknowledges in his original petition 16 for the award of class counsel fees, the firm was involved in 17 settlement negotiations, the firm was involved in the 18 opposition to the motion to dismiss on preemption grounds. 19 The factors that my colleague at Vanderbilt, 20 Professor Fitzpatrick identifies as relevant to the 21 designation of the multiplier. 22 formal matter by appointment of Your Honor, the early 23 contributions, and also capital investment and opportunity 24 cost investment in this case. 25 The role that they played as a This case became a viable enterprise because firms JA9110 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 71 07/13/18 DatePage Filed:38 08/09/2019 of 124 Wolff - Argument 38 1 like the Locks Law Firm dedicated their time, their resources, 2 and their reputations to the proposition that these injured 3 players were entitled to a remedy. 4 That the obstacles that were both legal and 5 scientific, and also, with all due respect to the NFL, the 6 reputation well-earned that the NFL had for scorched earth 7 opposition to any attempt to seek compensation for players, 8 those were daunting obstacles. 9 And I think all of the firms that were involved in a 10 core role early in litigation should have that role 11 appropriately recognized. 12 asking for a larger multiplier than any of their fellow class 13 counsel, but they are certainly asking for equitable treatment 14 in that regard. 15 And the Locks Law Firm is not I'll mention very briefly on the issue of the 16 calculation of the lodestar, it was included in the lodestar, 17 there's some disagreements here. 18 thousand dollars attorney's fees, and at least several tens of 19 thousands of dollars of paralegal time that were disallowed by 20 Mr. Seeger and his firm. 21 There's several hundred And let me just, as one example, offer the 22 following. Mr. Seeger in his petition seeking the award of 23 class counsel fees, pointed, quite appropriately, to the 24 player injury database, which was a very important part of 25 both creating the -- the body of knowledge about the nature of JA9111 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 72 07/13/18 DatePage Filed:39 08/09/2019 of 124 Wolff - Argument 1 the injuries that would form as -- serve as the basis for 2 forming a legal theory about the claims. 3 39 And also put the NFL on notice of exactly the 4 magnitude of the problem that they were going to be confronted 5 with, both in litigation, and in the popular press. 6 Locks Law Firm dedicated an enormous amount of time, primarily 7 staff and paralegal time, with the creation of that database. And the 8 That time was disallowed by Mr. Seeger. Without 9 much explanation, other than some suggestion that paralegal 10 time was not compensable, which doesn't appear to be a 11 consistent rule that he's followed. 12 And I mention that example because it speaks to the 13 issue of process, and I'll spend the balance of my time 14 talking about that, if I could. 15 during his initial presentation that I want to pick up on. 16 Mr. Seeger said three things The first is that he said that he and his firm have 17 sought to be transparent at every stage of this litigation. 18 And I think that is a laudable principle. 19 principle that has characterized the process of negotiating 20 allocations for class counsel fee and common benefit fees. 21 It is not the This has been a process which is characterized by a 22 lot of one-sidedness of access to information, and of the 23 principles by which tradeoffs are being made. 24 said that the Diet Drugs litigation in many ways laid the 25 groundwork for this case, as a matter of the theory of the JA9112 Mr. Seeger also Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 73 07/13/18 DatePage Filed:40 08/09/2019 of 124 Wolff - Argument 1 case. 40 He's absolutely right. And what Judge Bartle did in the Diet Drugs 2 3 litigation with respect to the allocation of common benefit 4 fees should also be a model in this case. 5 did in that case was to instruct class counsel to come 6 together and enter into a negotiation through a committee 7 process. What Judge Bartle 8 A process by which disagreements about both what's 9 included in lodestars, and how multipliers should be awarded 10 or designated for common benefit lawyers, could achieve as 11 much consensus as possible. 12 So that the Court would not be burdened with the 13 micro management of very serious and very real disagreements 14 about money that these lawyers have earned, and tradeoffs that 15 are going to have to be made. 16 Consensus is entirely possible. And that process 17 hasn't happened yet. 18 it is the product of a committee process by which most of the 19 lawyers in this room have come to consensus on most of the 20 disputes and most of the questions about what's included in 21 lodestars and how multipliers are awarded. 22 23 What this Court should have in front of And that's not what this Court has in front of it yet. And -- 24 THE CLERK: Two minutes remain, Mr. Wolff. 25 PROFESSOR WOLFF: Thank you so much. JA9113 Third, what Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 74 07/13/18 DatePage Filed:41 08/09/2019 of 124 Seeger - Argument 41 1 Judge Bartle did, which we think would be a model for this 2 case, is after imposing some guidance about standardization of 3 approach to lodestar, and billing rates, which this Court has 4 already spoken to, that the rates need to be standardized 5 somewhat, we can't have some lawyers charging two or three 6 times as much. 7 THE COURT: 8 PROFESSOR WOLFF: 9 Please complete. That after there's some standardization there, an interim award would be appropriate 10 up front, perhaps 20 percent of claimed lodestar without 11 multipliers. 12 work. 13 form a committee, enter into negotiations, and produce a 14 consensus proposal to the Court is the preferred process. So that lawyers can start getting paid for their And then, second, the process of instructing counsel, 15 THE COURT: 16 PROFESSOR WOLFF: 17 THE COURT: 18 MR. SEEGER: 19 to do with the case, Your Honor. 20 you know, bringing in I think a law professor to come and 21 argue. 22 23 24 25 THE COURT: Thank you. Thank you, Your Honor. Okay. Spoken like a man who has had nothing And that's the problem with, I mean, I -- that was my fault, and I apologize. MR. SEEGER: No, it's fine. actually -- JA9114 It's fine. Because it Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 75 07/13/18 DatePage Filed:42 08/09/2019 of 124 Seeger - Argument 1 THE COURT: 42 I did call two other firms when it was 2 obvious to me that they -- that someone else was arguing. 3 under the circumstances I -- I'm pleased that I allowed this 4 argument. 5 Okay. MR. SEEGER: But my point is that, you know, when 6 you appoint lawyers to do a job, I don't think you've 7 appointed us to go out and hire other lawyers to come and 8 argue our motions, and to do other things. 9 talking about the fee thing, I'm talking about the credit 10 But And I'm not just claimed for hiring David Fredericks. 11 I wouldn't -- I personally would -- it was a group 12 decision. 13 think the lawyers have to stand before the Court when they're 14 appointed and be lawyers. 15 that. 16 comments. 17 Mr. Locks was pre-MDL time. 18 I personally wouldn't have done that, because I And we are all capable of doing But I want -- let me address just briefly some of these The time that was disallowed for the most part for If you look at the CMO-5, it says it's disallowed. 19 It is not included. Everybody has lived by that rule. When 20 you're talking about a database, our view was that many of 21 that was client-specific. 22 clients for which to date 105 claims have been processed, and 23 he is entitled to over $10 million in attorney's fees, for a 24 case that was worked on by many lawyers, those go to him, 25 nobody share in that. Now Mr. Locks has 1,100 individual JA9115 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 76 07/13/18 DatePage Filed:43 08/09/2019 of 124 Seeger - Argument 1 Those are his attorney fees. And I don't fault him 2 for that. 3 the day, we don't allow case-specific work in this setting, 4 because it's not for the common benefit. 5 I don't have an issue with it. paid. 7 get a lower multiplier. 9 But at the end of It was for Mr. Locks and his client, and he's being 6 8 43 As far as the reason for the lower multiplier, he did There was a period of time when Mr. Locks during the negotiations, these are in our papers, Mr. Locks gave an -- 10 when both sides had promised strict confidentiality, Mr. Locks 11 gave an interview at Business Week that caused the NFL to come 12 back to us and terminate discussions. 13 The only way that could move forward was if we 14 eliminated Mr. Locks from the group, because they believed he 15 would be a source of leaking information. 16 with them at all. 17 I'm not agreeing But I had to deal with that situation. I had to 18 deal with many situations like that. I've had to deal with 19 Mr. Locks launching complaints against the settlement on 20 provisions that he has signed off on as class counsel. 21 And -- and, you know, Mr. Wolff -- Professor Wolff 22 didn't have anything to do with this case, so it's very easy 23 to come in here -- I would have preferred to hear -- have 24 heard from Mr. Locks. 25 But it's very easy for somebody to come in and argue JA9116 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 77 07/13/18 DatePage Filed:44 08/09/2019 of 124 Seeger - Argument 44 1 for somebody else, and just give these big picture theories on 2 how it should be done. 3 As far as the committee, I would have had no 4 objection to it. Your Honor chose to ask me to make 5 recommendations. They're merely recommendations. 6 THE COURT: 7 MR. SEEGER: 8 THE COURT: 9 Let me ask you something. Yes. Are you familiar with cases -- they keep on raising this issue of getting a special negotiator for 10 this. 11 to address, and I would like to maybe have a subsequent two or 12 three page discussion of this, on whether or not -- whether or 13 not -- this is for my use of you, who I think knows more about 14 this case than I. 15 Are you familiar with other cases that you would like I mean, you have been the face of the case, and, 16 frankly, you're the only one that faced the Court. 17 one. 18 he's sure he can get class certification, I looked at him with 19 real surprise. 20 The only Maybe Mr. -- Professor Issacharoff, when he told me that And he said, just leave it to me. And I said, well, 21 let's see what goes on. 22 face of it, and you were the only person that I -- that 23 interacted with the Court, other than the -- than the argument 24 that we had. 25 But the reality is that you were the There's no question about that -- no question about JA9117 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 78 07/13/18 DatePage Filed:45 08/09/2019 of 124 Seeger - Argument 45 1 it. But are there other situations that I may not be familiar 2 with, besides the -- Judge Bartle, whom I respect 3 tremendously, who have used the system of having lead counsel 4 submit to the Court, just as you have? 5 MR. SEEGER: They're -- I mean, they're in our 6 brief, Your Honor, and I can put those into a two-page letter, 7 it's very simple. 8 context of a class action where they not only have allowed 9 lead counsel solely to make those recommendations, but I can But there are a number of cases in the 10 tell you I've personally been involved with cases, the most 11 recent one was the Volkswagen case, overseen by Judge Breyer 12 in the Northern District of California where he appointed 13 Elizabeth Kibrazer to just go ahead and make the allocations. 14 It wasn't a recommendation to the Court. 15 THE COURT: 16 MR. SEEGER: 17 And he approved it? He approved it. And he appointed her to go ahead and do it and make those allocations. 18 THE COURT: 19 MR. SEEGER: Okay. Thank you. And there are a number of cases where 20 that -- and, in fact, in many places in class actions that's 21 more the practice. 22 23 THE COURT: of it, but I wasn't sure. 24 25 That's what -- that was my understanding MR. SEEGER: I just had a couple of other very -- very -- JA9118 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 79 07/13/18 DatePage Filed:46 08/09/2019 of 124 Marks - Argument 1 THE CLERK: 2 MR. SEEGER: 3 46 Less than one minute. I'm sorry, what do I have a minute left, you said? 4 THE CLERK: 5 MR. SEEGER: Less than one minute left. Less than one minute. Let me go 6 quickly. After the execution of the term sheet, the Locks 7 firm -- again, great -- Gene Locks is a great lawyer. 8 well-known, the work he's done in other cases. He's 9 But after the signing of the term sheet his firm did 10 not have that much involvement, frankly, with the crafting and 11 drafting of the settlement agreement, and the briefing 12 thereafter. 13 14 That's all. THE COURT: Okay. Thank you. All right. The next person from Podhurst Orseck and you are? 15 MR. MARKS: Steven Marks, Your Honor. 16 THE COURT: Oh, okay, Mr. Marks. 17 MR. MARKS: I want to first start by echoing what 18 Mr. Seeger said. 19 was honored to be given. 20 I thank him for that. 21 throughout, and from the beginning. 22 I'm extraordinarily proud of the role that I Mr. Seeger invited me early on, and We've worked very well together But I want to go back in time long before this MDL 23 was created, and how we got involved. Because Your Honor has 24 asked us to tell us -- tell the Court about our involvement 25 and our role. It's an uncomfortable position to be talking JA9119 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 80 07/13/18 DatePage Filed:47 08/09/2019 of 124 Marks - Argument 47 1 about yourself that way, but since you've invited it, I will 2 go back. 3 In -- about seven years ago, I believe it was May of 4 2011, a professor at Boston University, a doctor, and some 5 other folks that were doing research -- you know of Ann McKee, 6 who's one of the famous researchers in this area, contacted 7 our office. 8 At that point in time there was no concussion 9 litigation. or even a thought of concussion litigation. And 10 as a result of that. Mr. Turner. Kevin Turner was actually 11 being treated by a Dr. Cantu. 12 He was actually in the process of filming a movie, a 13 documentary which ultimately came out through David Frankel at 14 HOB Sports, and was released. 15 him get an audience at the Aspen Film Institute, before all of 16 this happened. 17 And we participated in helping When Mr. Turner, who was our client throughout these 18 proceedings, and only problems arose after his death by other 19 family members, Mr. Turner and I became exceedingly close. 20 We -- we were very, very close, and I considered him 21 a personal friend. Kevin came to our office in 2011, met with 22 me and my partners, two of which are here now, and we 23 researched, without anyone else's participation, all of the 24 issues that ultimately were going to be seen in this case, 25 including preemption, causation, collective bargaining JA9120 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 81 07/13/18 DatePage Filed:48 08/09/2019 of 124 Marks - Argument 1 48 agreement, and so on. 2 And at that point in time through word of mouth we 3 started getting lots of clients. No suit had been filed, we 4 were working on a complaint. 5 class action, to be honest with you. 6 individualized damage cases, causation was not going to be a 7 common issue. We didn't perceive this as a Because it was 8 And so we filed a complaint -- 9 THE COURT: Well that was one of the brilliant parts 11 MR. MARKS: In the settlement, yes. 12 THE COURT: -- in the settlement. 13 MR. MARKS: It could only be done through a 10 of this -- 14 statement. And that's where I give everyone who was on the 15 team, I think of myself, Mr. Seeger was kind enough to mention 16 me first in his list of contributors, and I always thought of 17 myself, and I think Chris did too, as having the second most 18 important role in this case. 19 But getting back to the process, we've prepared this 20 master -- our complaint, a whole bunch of firms started filing 21 complaints. 22 was gathered together, and it happened to be in Miami. 23 held an organizational meeting back then, and we helped to 24 negotiate a structure that we proposed to Your Honor, which 25 Your Honor generally accepted, with the change of having lead I think we were the second one to file. JA9121 The MDL So we Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 82 07/13/18 DatePage Filed:49 08/09/2019 of 124 Marks - Argument 1 49 counsel. 2 We had decided before that time that we were going 3 to be a committee of six. 4 thereafter, Mr. Seeger called me up, and I was very honored 5 and very respectful of Chris, he's a brilliant lawyer, and 6 very capable. 7 from that moment and through today -- well I'm going to cover 8 two periods of time. 9 work. 10 Your Honor changed it. He asked me to get involved. Shortly And I did. And Pre-settlement work, post-settlement Mr. Seeger I think had respect for our capabilities. 11 So he asked me to identify and vet clients to be class reps. 12 The two class reps in this case are our clients, Kevin Turner 13 and Shawn Wooden. 14 of people. 15 They were out clients. We vetted hundreds Chris asked me, and I wanted to be a part of the 16 communications committee, because it was my personal opinion 17 that the only way we were going to get to a result was -- and 18 Kevin wanted this, public awareness. 19 belief. 20 And I was the chair of the communications, along 21 with -- and Mr. Turkon (phonetic). 22 successful. 23 was everywhere. 24 25 That was key, in my And we were very The public awareness, as Mr. Weiss alluded to, I was taking my son to football games and being asked to sign waiver, concussions, everybody was -- it was a JA9122 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 83 07/13/18 DatePage Filed:50 08/09/2019 of 124 Marks - Argument 50 1 great objective, and we were incredibly successive as creating 2 a dialogue every Sunday, every football game, every halftime. 3 And a lot of the players that were presented were our players 4 that we had vetted. 5 So what did we next do during the negotiations? I 6 was there from day one and to the end. 7 missed a phone call, I never missed a meeting, and I was there 8 through the negotiations even with Layn Phillips. 9 we played a very major role. 10 I was never -- I never And I think And, in fact, the very first MOU at the early stages 11 of the litigation I drafted. 12 that ultimately was approved by Your Honor, and I have 13 correspondence, I can show you in camera all the 14 communications, I drafted the MOU. 15 The framework for the settlement That had two programs that were ultimately adopted. 16 A monetary award program, and a baseline assessment. 17 didn't call it that at that time, but that was the idea of 18 helping these players medically. 19 We Then I was asked to work with the actuarial's. We 20 had to figure out what was going -- this was going to cost. 21 We had to price it. 22 Your Honor. 23 exclusively. 24 25 This was before uncapped became involved, And I worked with the actuarial's almost They came to my office and spent weeks, if not months, going through very complicated actuarial analysis, JA9123 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 84 07/13/18 DatePage Filed:51 08/09/2019 of 124 Marks - Argument 1 take rates, and how many people are going to get different 2 disease, and so on. 3 We then were asked to find experts. You already heard their names. Who are the two 4 experts of the four that I think were mentioned? 5 and Fischer. 6 a neuro psych. 7 Dr. Fischer was a neurologist. Where are they? Dr. Hamilton Dr. Hamilton was They're both from Miami. How did 8 they get selected? 9 I found them, and it was agreed, and Mr. Buchanan, Dave, Because I interviewed lots of doctors and 10 worked with them and he did great jobs of getting the 11 affidavits done. 12 51 But they were in your final order of approval. Who 13 were the faces of the case? 14 to take credit for this. Kevin Turner and Shawn Wooden were 15 the faces, our clients. I accompanied them every single event 16 that they went to, and we were very successful, as I said 17 earlier. 18 I know a lot of people are going We had other faces. Chris asked me to get medical 19 information, so I had to comb through hundreds of player's 20 files to get medical information to understand disease rates 21 who -- what were the percentages of these players who were 22 likely to be making claims. 23 Seeger has tried to do the right thing. 24 honorable person. 25 Now I don't object, I think Mr. I think he is an And like I said, I have nothing but nice things to JA9124 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 85 07/13/18 DatePage Filed:52 08/09/2019 of 124 Marks - Argument 1 say. My comment, though, I believe that our multiplier is 2 low. And I know it's 2.25, and I saw your reaction before 3 with the 2.5 with Mr. Weiss. 4 52 And I will tell you why. We were involved from day one, even before lawsuits 5 were filed. 6 stages of this case, we had hundreds and hundreds of players. 7 We had the biggest risk, because at the early We have since lost lots of players, because of 8 poachers and advertisers, and people promising them favorable 9 doctor's reports, and loans, and all that kind of nonsense. 10 But we lost half of our cases. 11 we're not going to do those things. 12 And that's life. I mean, But for us to get a 70 percent less than -- 70 13 percent increase, Mr. Seeger is at 3.89, he has 70 percent 14 more lodestar. 15 problem. 16 it's fair, and I don't think it's right in conjunction with 17 the risk that was taken. 18 Now, Chris, like I said, is great. But I don't think that's equal, and I don't think The vast majority of his time, and almost all of Mr. 19 Levin's time was post-settlement. 20 at that point. 21 approving it, and then the third and -- 22 23 24 25 I have no There isn't a lot of risk Of course there is a risk of Your Honor THE COURT: I -- this is not included in that. other words, this is not post-settlement money this is -MR. MARKS: My work. Pre-settlement. JA9125 My work was -- yes. In Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 86 07/13/18 DatePage Filed:53 08/09/2019 of 124 Marks - Argument 53 1 THE COURT: I understand that, and so was his. 2 MR. MARKS: Well, you know, but a lot of it has been 3 post-settlement too. 4 THE COURT: 5 6 7 discussed today. Post-statement work is something -- MR. MARKS: Okay. But I think it's included in the allocation that was done. 8 THE COURT: 9 MR. SEEGER: 10 Yes, but that's not what's being I don't believe so. Is it? I think what Mr. Marks is referring to, Your Honor, is from the time the term sheet was signed -- 11 MR. MARKS: Right. 12 THE COURT: Oh, that's a very different -- 13 MR. SEEGER: 14 THE COURT: -- that's a different -- 15 MR. MARKS: Yeah. 16 THE COURT: -- I thought you meant implementation. 17 MR. MARKS: No. 18 -- we -- No, no, no, Your Honor. I'm glad Mr. Seeger cleared it up. 19 THE COURT: Okay. 20 MR. MARKS: He read my mind. 21 THE CLERK: Less than two minutes remaining. 22 MR. MARKS: I'm sorry? 23 THE CLERK: Less than two minutes remaining. 24 MR. MARKS: All right. 25 And he's right. I will speak very fast. Your Honor, I believe that our lodestar should be commensurate JA9126 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 87 07/13/18 DatePage Filed:54 08/09/2019 of 124 Marks - Argument 54 1 with Mr. Seeger's, not only because of the quality of work we 2 did, but because of the important role we played, and the fact 3 that we did so early on when there was the highest amount of 4 risk taken on hundreds and hundreds of players that we since 5 -- we'll never get compensated for. 6 Which is the reason this occurred. If it weren't 7 for the number of players we had -- we had the stable of 8 players that were always going on news or -- and that were 9 supporting the work that was necessary in order to evaluate 10 the case from a damage standpoint, and from an actuarial 11 standpoint. 12 provided us the information, this settlement couldn't have 13 been done. If we didn't have that stable of players, which 14 THE COURT: Right. 15 MR. MARKS: And so that's why I think our lodestar 16 should be higher. And we did not have an audit issue in our 17 case at all. 18 think we had the least amount of time of any attorney or law 19 firm in this entire case audited and reduced. I don't even think any time was taken off. 20 THE COURT: All right. 21 MR. MARKS: Thank you. 22 THE COURT: Okay. 23 (Transcriber change) 24 25 MR. SEEGER: I Thank you. So, Your Honor, I mean, like I said with Sol and with Steve Marks, he did outstanding work. JA9127 That Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 88 07/13/18 DatePage Filed:55 08/09/2019 of 124 Seeger - Argument 1 is -- I thought that was represented by a 2.5 -- what was it 2 -- a 2.25 multiplier. 3 was earned. 4 don’t think we pushed back much at all on his time. 5 it was well earned. 6 55 He had $3 million in lodestar and it I mean, as Mr. Marks said to you just now, I But you have to make a judgment call here. It was -- I was 7 asked to do that and my -- and the judgment that I made was 8 that that was a fair multiplier based on a $3 million lodestar 9 as since I’m sort of the benchmark here as opposed to, you 10 know, I had over $18 million in lodestar, a number -- I mean a 11 substantial part of my firm was committed to this case, where 12 for a period of time I wasn’t doing anything else and others 13 weren’t so there’s -- there’s an opportunity cost component. 14 But having -- having said that, I would only push 15 back on a couple things that Mr. Marks said. 16 problem with him showing to the Court the initial MOU that was 17 drafted based on some committee discussions we had. 18 think it represents the ultimate deal. 19 I have no I don’t Now, there are some concepts that are picked up, but 20 they had to go a little bit farther than a couple pages and I 21 don’t think Mr. Marks meant to say that worked exclusively 22 with the actuaries. 23 (phonetic) folks. I think he’s talking about the Garrettson 24 There was a time when they were trying to build a -- 25 sort of a calculator to calculate damages in the case, which I JA9128 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 89 07/13/18 DatePage Filed:56 08/09/2019 of 124 McGlamry - Argument 56 1 put an end to because I felt at the end of the day that that 2 calculator and where it was going, the idea was that you would 3 punch in certain characteristics of a player and you’d get a 4 number. 5 I felt it wasn’t benefitting our overall 6 negotiations so I decided that we wouldn’t go forward with 7 that. 8 criticisms of the work Mr. Marks did. 9 THE COURT: 10 11 Having said that, there is nothing else, I have no Okay, thank you very much. Okay, the next -- the next are seeking class benefit fees. This is a different group, Pope McGlamry. 12 MR. MCGLAMRY: Good morning, Your Honor. 13 THE COURT: 14 MR. MCGLAMRY: 15 appreciate your time this morning. 16 about 400 players. 17 those were in place before the settlement was announced. Good morning. Mike McGlamry with Pope McGlamry. We presently represent At one point we had over 500. 18 THE COURT: 19 MR. MCGLAMRY: One second, please. Okay. Most of Okay, yes, go on. Sorry, Your Honor. And we 20 lost obviously a lot of these. 21 here to complain about anybody. 22 job. 23 Sol because as I -- the way it was built was he’s co-lead 24 counsel, that’s what I think of him as. 25 I’m not a big fish and I’m not I think Chris did a great I hate that when we talk about Chris we don’t include And it kind of makes me feel bad that Sol or even JA9129 I Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 90 07/13/18 DatePage Filed:57 08/09/2019 of 124 McGlamry - Argument 1 Gene or Steve have to get up here and justify what they did 2 because this would not have all happened had we not all been 3 together and done what each of us did. 4 57 This was a very unique case and a very difficult 5 case and anybody that asks -- and I know you know that better 6 than anybody, and a wonderful result. 7 administer, but that’s the nature of the game. 8 hard-fought battle. 9 It’s been difficult to Players were identifiable and accessible so people 10 could get at them and change what they did. 11 was unusual. 12 an MDL. 13 it. 14 This was a That was -- that You never see that in a class action, much less It involved the NFL so we had huge media attention to You had 5,000 individually filed cases against the 15 NFL and you end up settling this case as a class action so you 16 bring both of those dynamics to the table, both with lawyers 17 and with clients. There were very difficult legal issues. 18 Chris has mentioned most of those, and most of those 19 have not been appreciated once the settlement was announced as 20 to how thing -- how difficult things may have been and so 21 people have taken that for granted. 22 distrust of players of the NFL. 23 There’s been a tremendous I believe that’s personal and real and that 24 permeates some of this. I hate that I’m here today. 25 it makes us all look bad. I think I think we look like what the media JA9130 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 91 07/13/18 DatePage Filed:58 08/09/2019 of 124 McGlamry - Argument 1 portrays us as, as greedy plaintiff lawyers. 2 when this got started and you appointed us to leadership, we 3 all had our roles. 4 58 I remember back Larry and Sol had their roles, we met at their 5 office. 6 Communications Committee that really changed the way the world 7 looked at concussions. 8 of them contributed to this. 9 Chris was the leader. We did that, we had the All of those people did things and all And I’m not going to say one over the other because 10 I don’t think that’s fair. 11 players or clients to come out and speak on behalf of this 12 settlement on various issues. 13 lawyers didn’t speak. 14 We had, you know, individual That was all by design so the But that didn’t just come from Chris or Sol or 15 Steve, that included a lot of us. 16 pressure was -- was incredible. 17 here is pit the people with no cases or very few cases against 18 those that have a lot of cases, right? 19 And I believe that media What we seem to have done And I know one of the criteria here is how we 20 contributed toward making the settlement happen. 21 you know, I had relatively a lot of cases, I don’t have as 22 many as Gene or some others or Steve. 23 to support this settlement, it would never have happened. 24 25 Well I -- Had we not participated You can talk about great legal argument which we had, you can talk about briefing, you can talk whatever you JA9131 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 92 07/13/18 DatePage Filed:59 08/09/2019 of 124 McGlamry - Argument 1 want but we all stepped up to the table, we had the clients 2 and we got them into this settlement, and so you can’t say 3 we’re not important. 4 59 Or, you can say well, you know, you’ve got 500 5 clients so you’re going to get your day where you’re going to 6 get paid off with the individual claims. 7 mentioned that about Gene a minute ago. 8 those two shouldn’t be tied together, but I’ll tell you right 9 now from me, I’m losing money. 10 I know Chris Well, number one, I have like I said, maybe 400 clients now. Over 300 11 of them I’m going through the BAP process. We all know how 12 that works -- you might get five percent of those people what 13 will ever qualify for an amount. 14 that. 15 because I have a lot of clients. I’m working for free and all If you tallied all this up, I’m not making money 16 What I did bring to the table though is I brought 17 those clients into this settlement, I participated in what I 18 was supposed to do, I was the head -- co-lead of the Discovery 19 Committee. 20 worked to get ready to do that. 21 Committee. 22 Unfortunately we didn’t get there, but we had I had people on the Briefing I was part of the Communications Committee, which I 23 think made the difference here and forced this settlement. 24 was also part of the Ethics Committee, which was the group 25 that was initially put together to look at poaching that led JA9132 I Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 93 07/13/18 DatePage Filed:60 08/09/2019 of 124 Seeger - Argument 1 to the work that Chris did and Your Honor did with regard to 2 these funding companies and all of that. 3 60 And so, you know, you want to say I’m not a big 4 fish, I’m not a big fish. 5 or his people. 6 does Steve and so does Anthony, and those people that stepped 7 up to the plate in the leadership of this case ought to all be 8 treated fairly. 9 I did not do as much as Chris did He has great people. But so does Sol and so And for somebody to come up and say well I’m now 10 supporting this group because they’re on my side versus where 11 people were when we all got started, that’s just unfair to me, 12 Your Honor. 13 14 15 I think we ought to be all treated fair. THE COURT: to answer? Thank you. Is there any -- do you want Do you want to respond? MR. SEEGER: It will be very brief because I know 16 it’s a theme that’s been touched upon by Mr. McGlamry and 17 others, the idea that there are lawyers that have a lot of 18 cases and then some firms that don’t. 19 And it’s true and it’s not that unusual and in MDL, 20 particularly one that has been partially settled by a class 21 action where you have lawyers that do pure common benefit work 22 and you have lawyers that do common benefit work and have 23 individual clients like Mr. McGlamry. 24 him to receive common benefit fees -- 25 THE COURT: I made a proposal for And he certainly can get paid for his -- JA9133 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 94 07/13/18 DatePage Filed:61 08/09/2019 of 124 Seeger - Argument 1 where appropriate, for his -- for his work on individual 2 clients. 3 MR. SEEGER: 4 THE COURT: 5 MR. SEEGER: Well -I am not curtailing that. No, and you’re right, Your Honor, and 6 in fact, and I just took a quick look, Mr. McGlamry has 583 7 clients registered. 8 I’m not disputing him on that. 9 numbers are in the system. 10 61 I don’t know how many he has remaining, I’m just saying what the 11 of those claims have been approved, which would 11 give Mr. McGlamry approximately $2.7 million in attorney’s 12 fees on 11 out of 500-and -- well, 500. 13 McGlamry’s right, you’ve got to look at it as a team. 14 I do anything to contribute to helping him receive those fees? 15 I think I did. 16 So, you know, Mr. I’m not asking him for anything back. So did It’s very 17 different. So I think there’s a fundamental misunderstanding 18 too of the separation between doing work for your specific 19 clients and common benefit work that -- that helped everybody. 20 And the issue of media pressure, I think you can see 21 by the objections that there are a number of firms that did 22 important work in that respect, but there are a number of 23 firms claiming the same -- the same work. 24 25 And the media -- the media plan all along was never to turn that into a litigation strategy. JA9134 It had two Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 95 07/13/18 DatePage Filed:62 08/09/2019 of 124 Seeger - Argument 62 1 objectives; to make sure that if this case was discussed in 2 the media it wasn’t just the NFL’s view, and that they 3 understood they were real people suffering from these 4 problems, that was it. 5 And we hired an independent PR firm to handle that, 6 CLS. 7 paying them on a monthly basis for the last several years for 8 -- for creating that strategy. 9 THE COURT: 10 I think they should get some credit here. MR. SEEGER: We’ve been You have? Well, I am now but at the time it was 11 the -- all of us were. 12 money in a litigation fund and we were compensating them. 13 point was that once we hired a PR firm, yes, there were 14 lawyers overseeing it, agreeing with the strategy, but the PR 15 firm did the PR work. 16 I mean, there was a -- we had put And I’m -- and don’t -- I don’t want to be 17 misunderstood to be saying that it’s not -- I mean, Steve 18 Marks was individually representing Kevin Turner and Shawn 19 Wooden, he did make them available. 20 decided they were the perfect class reps. 21 My We did talk with them and But the reality is that this was a class action and 22 we believed any player -- and 23 work done by the class reps, but obviously in a class they all 24 have to be representative of the claims or you don’t have the 25 -- the -- you know, the cohesion that you need. JA9135 this is not to disparage the So anyway, I Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 96 07/13/18 DatePage Filed:63 08/09/2019 of 124 Hagen - Argument 1 don’t -- I don’t want to belabor that point. 2 great work. 3 recommendation. 63 Mr. McGlamry did I think the proposal is fair, but it’s just my It would be Your Honor’s decision. 4 THE COURT: Okay, thank you. 5 All right, Bruce Hagen. 6 MR. HAGEN: Good morning, Your Honor, and thank you 7 for the opportunity to allow me to speak today. I’ve been co- 8 counsel with Mike McGlamry on all of the cases that he’s 9 representing clients on and he and I have represented all 10 those clients together so when he talks about having had 500 11 clients in the case and that number trimmed down to about 400, 12 it’s exactly the same for me. 13 I am also just new to this world, a very small fish 14 in this big pond and it’s been quite an honor to work on this 15 case and work around a lot of the brilliant minds that we’ve 16 seen here, and this has been quite an education for me. 17 And I’m proud to be considered among the group of 18 plaintiffs’ counsel, as that term was defined by Mr. Seeger in 19 his petition to also include law firms that have done 20 important common benefit work for this litigation, approved by 21 co-lead class counsel and who are submitting declarations in 22 support of the petition. 23 THE COURT: And you are not getting anything out -- 24 have you been awarded anything? 25 MR. HAGEN: I got reimbursed my expenses, Your JA9136 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 97 07/13/18 DatePage Filed:64 08/09/2019 of 124 Hagen - Argument 1 64 Honor. 2 THE COURT: Yes, that’s what I -- 3 MR. HAGEN: Yes, I was reimbursed expenses -- 4 THE COURT: Okay. 5 MR. HAGEN: -- and Mr. Seeger did include me among 6 the list of folks that were to be paid for the time put into 7 the case at a multiplier of 1 -- 8 THE COURT: Oh, okay. 9 MR. HAGEN: -- so I am included on that list. But, 10 Your Honor, looking at the relative values and the issues that 11 were identified as far as how value is to be determined, I 12 believe that that multiplier of 1 is inadequate. 13 And it’s unfortunate, Judge, that we’re in a 14 position where anybody who’s arguing for an increase in what 15 they’re to be paid is by necessity arguing that the leader of 16 our team here should get less, and yet that’s the reality of 17 the situation that we’re in because of the disparity between 18 what our leader is getting -- 19 THE COURT: So you’re really -- 20 MR. HAGEN: -- and what everybody else is getting. 21 THE COURT: -- you’re really -- what you’re 22 objecting to is what Chris is getting more than what -- more 23 than what you’ve gotten -- 24 MR. HAGEN: Your Honor -- 25 THE COURT: -- is that correct? JA9137 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 98 07/13/18 DatePage Filed:65 08/09/2019 of 124 Hagen - Argument 1 MR. HAGEN: -- I don’t know where else the 2 adjustment could come from, if not from -- from the top, and 3 that’s the reality of this. 4 important role of anybody on this team here, it’s just that 5 the $70 million out of 112 becomes problematic when other 6 folks also contributed to this effort. 7 8 9 10 65 Yes, Mr. Seeger played the most And looking at the criteria that Mr. Seeger has identified and that the Court is looking at here -THE COURT: Of course I might decide that I’m going to put some away for the future -- 11 MR. HAGEN: That’s -- 12 THE COURT: -- out of the 112. 13 MR. HAGEN: Yeah, the Court can decide whatever the 14 Court decides, as Mr. Seeger -- 15 THE COURT: Well -- 16 MR. HAGEN: -- has repeatedly pointed out. 17 THE COURT: -- I wouldn’t be quite that generous. 18 MR. HAGEN: But one of the things that is a point 19 everybody keeps coming back to, Judge, is the point at which a 20 firm’s claimed common benefit contributions were made and were 21 they involved in the early stages of the litigation and the 22 project, and also contributions to the settlement. 23 So as you’ve heard, yes, we -- I was involved, I was 24 at that meeting at Mr. Marks’ office, prior to the MDL I was 25 at the meeting in Philadelphia at Mr. Weiss’s office. JA9138 At that Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 99 07/13/18 DatePage Filed:66 08/09/2019 of 124 Hagen - Argument 66 1 meeting I was asked to put on a presentation talking about a 2 media campaign and how this was being perceived in the media. 3 And based on that, when Mr. Tarricone was appointed 4 as the lead head of the Communications and Public Relations 5 Committee along with Mr. Marks, I was the first one put on 6 that committee because I was geared towards that aspect of 7 things. 8 9 I was very actively involved and supported the team the entire way in everything that we were asked to do. We 10 identified the firm to be hired that we picked which is CLS, 11 we vetted them among with several others and we crafted a very 12 specific strategy to try to keep everybody on message. 13 That included particularly keeping the lawyers on 14 message, but also getting the players on message as well. 15 created news where news didn’t exist, Judge, to try to put 16 pressure on the NFL. 17 We And the question really to be asked, and I think 18 this was the question that most of us who were not in the room 19 when the settlement negotiations were taking place asked 20 ourselves was, why did the NFL settle in August, 2013? 21 did they agree to this so early on in the litigation? Why 22 THE COURT: They were afraid of me, obviously. 23 MR. HAGEN: That’s -- that’s one explanation, but 24 what they were also afraid of, Judge, was the rising tide of 25 negative publicity that was coming against them and how that JA9139 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed100 07/13/18 DatePage Filed:6708/09/2019 of 124 Hagen - Argument 1 affects their bottom line. 2 coincidentally, the week before the new season was set to 3 begin. And they announced this, not I want to read something to the Court. 4 This is from the proposal that we received from CLS 5 when we were interviewing them. 6 process brings together a combination of factors” -- 7 8 67 MR. SEEGER: out? “Every so often the legal Your Honor, can I just point something I’m sorry, Mr. Hagen -- 9 THE COURT: Is it ten minutes? 10 MR. HAGEN: Yes. 11 MR. SEEGER: I don’t know if that’s work product 12 that we’re reading from. 13 don’t hand it to her. 14 MR. HAGEN: 15 MR. SEEGER: 16 read it. 17 it so -- Can you hand that to the Court? Oh, okay -Maybe it would just be easier not to I don’t know what it is. 18 MR. HAGEN: 19 MR. SEEGER: 20 MR. HAGEN: No, I haven’t had a preview of Oh, it’s -Okay. I don’t mind handing it to the Court but 21 if the Court doesn’t mind, “Every so often the legal process 22 brings together a combination of factors that elevates a case, 23 class action or mass tort to a level of attention at which the 24 media can be a great asset if properly managed, or a huge 25 liability if not. The personal injury cases filed by former JA9140 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed101 07/13/18 DatePage Filed:6808/09/2019 of 124 Hagen - Argument 68 1 National Football League Players against the League in 2 connection with a variety of head and neurological injuries 3 are just such an instance.” 4 “They bring together the celebrity of former NFL 5 stars, the huge draw of pro football, a set of moving stories 6 about profound health problems and a dramatic clash between 7 players and the League.” 8 9 “The challenge now is for the Plaintiffs’ Steering Committee to make the media work to its advantage and avoid 10 errors that could be used against your interests both in the 11 court of public opinion and in Federal Court in the Eastern 12 District of Pennsylvania.” 13 “The stakes in this mass tort litigation could 14 hardly be higher. 15 the greatest reputational risks in recent history.” 16 “Meanwhile, in your own legal camp are several law firms along 17 with a mass of plaintiffs who likely have quite varied 18 perspectives on legal and communications strategies.” 19 For the NFL, the litigation poses one of “In this environment, a failure to actively manage 20 the strategy message and messengers can result in message 21 chaos with conflicting or worse, quite damaging messages. 22 key is to drive our key messages to explain on our terms what 23 this case is about, proactively frame and simplify the debate 24 to foster a positive public environment for the litigation to 25 succeed.” JA9141 The Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed102 07/13/18 DatePage Filed:6908/09/2019 of 124 Hagen - Argument 1 69 Judge, all of those things were done, yes, under the 2 guidance of our PR firm. 3 like me who were actively following through and laying down 4 the base for then when they needed us to identify sympathetic 5 plaintiffs to write stories about or do op-ed pieces, we were 6 there to do all of that. 7 But through the actions of folks When I say we created where none existed, a 8 ministerial event in this case became a national story when 9 the filing of the Master Complaint in -- June 7th of 2012, we 10 used that as an opportunity to send out a massive press 11 release with carefully cultivated quotes from players, from 12 counsel, and it was picked up by 1,800 media outlets. 13 Judge, we, through our work early on in this case 14 when the risk was at the highest, are the group of folks -- 15 and it was myself and Mr. McGlamry, Mr. Marks, David Rosen who 16 I don’t see here today, and Anthony Tarricone, who under the 17 guidance of Sol Weiss and Chris Seeger, put this plan in 18 action and made it happen. 19 And I would put it to the Court that that’s where 20 the pressure was put on the NFL that led this case to be 21 settled. 22 to communicate to the community of players. 23 fraternity that speaks and talks to each other frequently. 24 25 You also had the very difficult situation of trying This is a So once the settlement was announced, there was a tremendous amount of push-back from players who have a history JA9142 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed103 07/13/18 DatePage Filed:7008/09/2019 of 124 Hagen - Argument 70 1 of distrust of the League. 2 program that existed and they feel that they get a bad shake 3 there, they feel that they are constantly on the defensive 4 when it comes to medical issues with the League. 5 They look at the disability I and the other folks on the committee helped to 6 craft the communication strategy to the players to try to help 7 get them on board so that we could proudly stand up and as Mr. 8 Seeger has repeated many times, have less than one percent of 9 players who actually objected. 10 That was part of the support that came after the 11 settlement was announced but prior to the final approval. 12 wasn’t writing briefs, Judge, I wasn’t involved in any of 13 that. 14 lay down a foundation for the work that the rest of the guys 15 did, I was there and I answered the call at every single turn. 16 I But when it came time to try to rally the troops and And I know that that contribution is worth to the 17 overall success of this effort, Judge. It’s worth exactly 1- 18 112th, my contribution to this, and that’s what I would ask 19 the Court to -- 20 THE CLERK: Less than two minutes. 21 THE COURT: Okay. 22 MR. HAGEN: -- consider for mine. 23 THE COURT: Thank you. 24 MR. HAGEN: Thank you. 25 THE COURT: All right, Mr. Mitnick. JA9143 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed104 07/13/18 DatePage Filed:7108/09/2019 of 124 Seeger - Argument 1 MR. SEEGER: 2 THE COURT: 3 so very sorry. 4 71 Oh, I can -Oh yes, no, I want you to be heard. I’m I’m sorry. MR. SEEGER: I mean, I don’t -- I don’t have a 5 problem waiting. 6 know, so Mr. Hagen’s submitted $325,000 in common benefit time 7 and I did give it a 1 multiplier. 8 argue for more it comes from Mr. Seeger, I have no problem 9 with that again, just to be really clear, it’s your decision, 10 I’m not going to -- two minutes and, you The idea that if people Your Honor. 11 Obviously the money has to be rejiggered if you 12 think that my recommendations are inaccurate and there’s no 13 problem with that. 14 don’t think is all that helpful, that they would point out how 15 important they are in the context of wanting to be hired. 16 Reading from the pitch from a PR company I But I don’t want to diminish either the fact that 17 these lawyers did really good jobs overseeing them and dealing 18 with very important issues. 19 a legal case at the end of the day and we had big issues. 20 had -- 21 But it’s not a PR case. This was We preemption was a big issue. If we survived that, we would have had other things 22 and I think we all know there are many cases where the PR is 23 great, but the case goes down in flames and this -- this could 24 have happened. 25 Hagen is a great guy, he did great work. This could have happened on appeal. JA9144 So Mr. I have nothing else Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed105 07/13/18 DatePage Filed:7208/09/2019 of 124 Mitnick - Argument 1 to -- 2 3 72 THE COURT: Okay. All right. Mr. Mitnick, are you -- 4 MR. MITNICK: Good morning, Your Honor, and thank 5 you for allowing me the opportunity to speak. 6 heard a lot this morning about big fish and little fish. 7 the smallest fish of anyone here and -- 8 THE COURT: 9 MR. MITNICK: Judge, we’ve I’m You don’t look so small to me. No, but, Judge, I was the foot 10 soldier. I did what no one else did and it’s the players who 11 are most important here. 12 important here because he negotiated a deal whose benefits 13 were tremendous to these players, but the players didn’t 14 understand the benefits. 15 It is Mr. Seeger who is most The players didn’t understand the obstacles they 16 faced. The PR company didn’t do that, the Communication 17 Committee didn’t do that, I did. 18 Dakota to Birmingham, Alabama to Tennessee, to Denver, to New 19 York, to Chicago -- 20 THE COURT: I traveled from Fargo, North There must be a -- I must misunderstand 21 something. You -- when you ask for -- when you book your time 22 for common benefit work, you should get compensated for it -- 23 MR. MITNICK: 24 THE COURT: 25 MR. MITNICK: Yes. -- is that correct? Yes, Your Honor. JA9145 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed106 07/13/18 DatePage Filed:7308/09/2019 of 124 Mitnick - Argument 1 THE COURT: 73 I’m not sure that I understand in all 2 these arguments today why these necessarily should be 3 enhanced. 4 understand that, Mr. Mitnick, that Mr. Seeger suggested that 5 you should be paid $673,000-plus -- You certainly are getting -- going to get paid. 6 MR. MITNICK: 7 THE COURT: 8 9 I That’s correct, Your Honor. -- and because you went these places and did what you did. MR. MITNICK: Judge, for two-and-a-half years almost 10 on a consistent weekly basis I traveled at my own risk, at my 11 own expense -- 12 THE COURT: 13 MR. MITNICK: 14 You didn’t put those in as expenses? Your Honor -- 15 THE COURT: 16 MR. MITNICK: 17 THE COURT: 18 MR. MITNICK: 19 20 Sure, and I got reimbursed for those, Yes, well certainly --- yes. -- I should think so. But those are expenses. I’m talking about my time. THE COURT: And that’s what you were paid for as I 21 understand it. Let’s get ground rules from this. 22 you were getting paid for, Mr. Mitnick -- 23 MR. MITNICK: 24 THE COURT: 25 MR. MITNICK: That’s what Absolutely. -- isn’t that not correct? Absolutely, Judge, absolutely. JA9146 And my Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed107 07/13/18 DatePage Filed:7408/09/2019 of 124 Mitnick - Argument 74 1 argument is that there is so much talk and everyone believes 2 they’re of huge value, okay? 3 value, but what I’m saying is I was the conduit. 4 work horse. 5 over 10,000 players and their wives through Alumni Chapter 6 organized meetings. 7 I’m not saying that I’m of great I was the I was the foot soldier that went out and spoke to This wasn’t a rogue tour on my part. This was 8 organized with presentation materials, with explaining 9 preemption and causation, with explaining the benefits that 10 Mr. Seeger negotiated in this tremendous settlement agreement, 11 and I’ve been unwavering in my support for that settlement 12 agreement from early -- late 2011. 13 Judge, when I traveled I met with Mr. Seeger one day 14 for lunch or dinner right after the settlement terms sheet was 15 announced and Mr. Seeger said to me, Craig -- or Chris said to 16 me, Craig, do whatever you need to do to get the endorsement 17 of these players to educate them, to make them aware of the 18 issues, and that’s what I did. 19 THE COURT: 20 there’s no question about that. 21 That’s important common benefit work, MR. MITNICK: But I didn’t receive even my hours. I 22 received a .75. Judge, that is what is mind boggling to me. 23 I was in constant communication with Seeger, Weiss throughout 24 this whole process for two-and-a-half years of traveling. 25 time is at .75, yet in the final settlement brief submitted to JA9147 My Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed108 07/13/18 DatePage Filed:7508/09/2019 of 124 Mitnick - Argument 75 1 Your Honor before the final fairness hearing, one of the 2 exhibits carried 25 pages of quotes that I gathered from class 3 members. 4 It allowed Mr. Seeger to stand up there and to say 5 to Your Honor at the very end of his argument, Judge, the most 6 compelling reason that you should grant final approval is that 7 99 percent of the player community has endorsed this 8 settlement. 9 percent endorsement rate. 10 I’m not saying I am the one that caused that 99 But, I was the only one that was out there as a foot 11 soldier for Mr. Seeger, for everyone else involved, and for 12 the players to help them understand, to educate them. 13 me to get a .75 when my hours were cut initially, I didn’t put 14 that many hours in initially. And for 15 I had many more, but Mr. Seeger -- Chris said to me, 16 Craig, you have my authority to do whatever it takes, don’t be 17 a pig about it. 18 had to do to make sure that every class member understood this 19 settlement and the benefits. 20 And, Judge, I tried not to be. I did what I And because of that, that was instrumental in that 21 99 percent endorsement rate that also Mr. Karp was able to 22 stand up and his first remark to the Court after Mr. Seeger’s 23 last remark was Mr. Seeger’s comment about the 99 percent 24 endorsement rate is correct. 25 THE COURT: Okay, thank you very much. JA9148 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed109 07/13/18 DatePage Filed:7608/09/2019 of 124 Seeger - Argument 1 MR. MITNICK: 2 THE COURT: 3 MR. SEEGER: 76 Thank you, Judge. Okay, Mr. -Your Honor, Mr. Mitnick is correct. 4 When the first settlement -- I believe it started with the 5 very first iteration of settlement, I knew that Mr. Mitnick 6 had not only great access to a lot of players because he’s 7 very well-connected in the community, but I knew he referred a 8 lot of cases to Mr. Locks. 9 I knew he had many clients of his own. He was kind 10 of a logical place for me to turn to to say I want to get the 11 message out. 12 time with incorrect information -- We had objectors that had websites up at the 13 THE COURT: 14 MR. SEEGER: I’m aware of all those things. So Mr. Mitnick did great work, all 15 right, let me start with that. 16 his time were two-fold. 17 appointment. 18 thought that was important. 19 The reason he’s at a .75 for One is he did not receive a court It was somebody that I tapped to help, but I But I also felt that when I got his time records, I 20 thought they were -- I thought there was some heavy billing 21 that went on so I made adjustments in my judgment that I 22 thought were fair. 23 fact that when I made a phone call to people, he was one of 24 several that I want to get the word out -- we need to get the 25 word out because we’re up against the misinformation campaign, But I don’t want that to detract from the JA9149 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed110 07/13/18 DatePage Filed:7708/09/2019 of 124 Tarricone - Argument 1 he stepped up. 2 THE COURT: 3 MR. MITNICK: 4 THE COURT: 5 Okay, thank you very much. Thank you, Your Honor. Okay, Anthony Tarricone. Hello, Mr. Tarricone. 6 MR. TARRICONE: 7 THE COURT: 8 MR. TARRICONE: 9 77 Law Firm. Good morning, Your Honor. Good morning. Anthony Tarricone from the Kreindler Professor Rubenstein in his report to this Court 10 stated, and I quote, “Class counsel settled the entire case 11 after briefing one dispositive motion, without undertaking any 12 formal discovery, without significant motion practice, without 13 summary judgment briefings, and without preparing for, much 14 less engaging in, a class or even a bellwether trial.” 15 There were two drivers -- main drivers that made 16 that happen. 17 were filed representing thousands of retired players, and the 18 second one, and there’s been some discussion about it today, 19 was the tide of public opinion. 20 The first was the critical mass of cases that And the tide of public opinion turned against the 21 NFL in a very big way by design. 22 and turned on its head with a C change (phonetic), the common 23 view that people had of this litigation at its outset that was 24 very negative to these players. 25 opinion, the change, the C change, didn’t just happen. JA9150 It turned against the NFL And the tide of public It was Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed111 07/13/18 DatePage Filed:7808/09/2019 of 124 Tarricone - Argument 78 1 because of the plan, the communications plan that you’ve heard 2 about. 3 I am the one who conceived it. I went to Mr. Weiss in the late part of 2011 before 4 any of the lawyers who worked on the settlement papers were 5 involved in the case. 6 Communications Committee for the BP Deepwater Horizon Oil 7 Spill case in the Eastern District of Louisiana, and we had a 8 communications campaign there that I chaired the effort of. 9 At the time, I chaired the And I told Mr. Weiss that I thought this case 10 presented a unique opportunity to use the public opinion to 11 move how people thought about this case in start and to turn 12 the very negative view that people had on its head. 13 And we had an organizational meeting on February 14 21st, 2012 at which time Mr. Weiss asked me if I would chair 15 the effort. 16 at that time, and Mr. Marks was asked to co-chair it a few 17 weeks later. 18 Mr. McGlamry and Mr. Hagen also asked to be on it And then on April 26th after we were appointed 19 formally by this Court, we continued with a committee and 20 there were some other members as well, but we had that meeting 21 on February 21st. 22 contacted Ray De Lorenzi, who at the time was the 23 Communications Director at the American Association for 24 Justice, where I had recently been President. 25 Two days later, February 23rd, I first And we had worked together on the Affordable Health JA9151 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed112 07/13/18 DatePage Filed:7908/09/2019 of 124 Tarricone - Argument 79 1 Care Act to prevent changes to the law that would have 2 prevented people from having access to justice in malpractice 3 cases, and Mr. De Lorenzi and I talked on the 23rd, it was a 4 Thursday. 5 On the following Monday, he introduced me to CLS. And a few days later, he gave his notice at AAJ and 6 he went to work for CLS, and that was in February that this 7 happened. 8 appointments. 9 request for proposal to several PR firms, including CLS and 10 April 26th, some time later, you made the On April 26th, I drafted and submitted a several others. 11 We then engaged in two weeks of interviews which I 12 arranged. They were attended by Mr. Seeger, Mr. Weiss, Mr. 13 Marks and myself, and I don’t recall whether others 14 participated in those. We decided on CLS. 15 We retained CLS on May 16th, 2012 and we had a plan 16 that had started -- on February 21st, before we retained CLS, 17 I laid this plan out and you’ve heard it today, no lawyers 18 talk to the press, we use the stories of the families to tell 19 what happened to educate the public about TBI and the 20 devastating effects it had on these families, and to dispel 21 the myths that were being propagated by the NFL and to turn 22 the tide of public opinion. 23 That began on February 21st we laid that out. And 24 then after May 16th when we retained CLS on the 22nd, we were 25 in Washington, our core group, meeting with CLS and we came up JA9152 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed113 07/13/18 DatePage Filed:8008/09/2019 of 124 Tarricone - Argument 1 with a plan to roll out a media campaign the day that the 2 Master Administrative Complaint was filed. 3 80 And I’m sure you recall, Your Honor, it was all over 4 the papers, it was all over the media, and there was a lot of 5 preparation that went into that, media briefings, and I 6 coordinated that with CLS. 7 But I was involved in it many hours a day, every 8 day, seven days a week, and on June 7th, Kevin Turner was on 9 Good Morning America. Mary Ann Easterling was on CNN. Diane 10 Sawyer covered this as the lead story on ABC Evening News. 11 was a major coup. 12 It We had a teleconference on that day featuring Kevin 13 Turner and Mary Ann Easterling. 14 NBC, ESPN, Fox, CNN, Bloomberg, Reuters, New York Times, 15 Atlanta Journal Constitution, Philadelphia Inquirer, HBO 16 Sports, Sports Illustrated, LA Times, Minneapolis Star 17 Tribune, Richmond Times, Milwaukee Journal Sentinel, and 18 others. 19 It was attended by CBS, ABC, That didn’t just happen. We made that happen and 20 it’s easy today to downplay the effect that this campaign had, 21 but it was an extraordinary result. 22 be sure, but I recognized the opportunity and brought it to 23 Mr. Weiss and then he had the -- the faith in me to ask me to 24 do that, as did Mr. Seeger when he was then appointed, and we 25 continued. JA9153 It was a unique case to Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed114 07/13/18 DatePage Filed:8108/09/2019 of 124 Tarricone - Argument 1 We had regular committee meetings. 81 Then we had a 2 core group which consisted of Mr. Seeger, Mr. Marks, Mr. Weiss 3 and myself. 4 included us and in some times, the CLS people, Ray De Lorenzi 5 and others. 6 Every week we had a meeting by phone that This was a carefully coordinated campaign and there 7 were detractors. The lawyers didn’t like the idea that they 8 had to be quiet. The only way we could make the filing of the 9 complaint on June 7th a newsworthy event was to keep the 10 lawyers out of the press for months beforehand. 11 That was not easy to do because there are a lot of 12 egos in this room and people wanted to -- you know, they file 13 a complaint, they want to give a press release and so forth, 14 and -- and a lot of them didn’t believe it would work. 15 did work. 16 But it We were then in the news. One of our goals was to educate the public, turn the 17 tide of opinion, but to do that we wanted to be in the news 18 every single day. 19 out of the sports pages and move it to the front page, to the 20 news, and we did that. 21 One of our goals was to take the campaign We were in both camps, sports and news, and we were 22 there every day up until the start of the season. 23 there every day during the season. 24 2013 season. 25 of 2013 the negotiations started. We were It dominated the 2012, And it was against that backdrop that in January JA9154 And it’s easy to say well, Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed115 07/13/18 DatePage Filed:8208/09/2019 of 124 Seeger - Argument 82 1 it had nothing to do with the NFL coming to the table, but I 2 think we all know that it did and I think if you ask in this 3 room, I don’t think there’s a lawyer in this room who won’t 4 agree that there wasn’t another case ever where communications 5 had such an effect and -- 6 THE CLERK: Less than two minutes remaining. 7 MR. TARRICONE: 8 THE CLERK: 9 MR. TARRICONE: I’m sorry? Less than two minutes remaining. So I can’t -- I don’t have time to 10 go through everything I did. 11 right up until the settlement was announced and the committee 12 and myself remained involved to sell this deal and so we were 13 involved in that as well. 14 I was involved every day and I was not involved in the negotiation and I was not 15 involved in the -- all the work to push it through. 16 had been. 17 work that we did was very important. 18 multiplier. 19 Didn’t have that opportunity. I wish I But the creative My firm was given a 1.25 I believe it’s unfair given the circumstances of 20 this case and how it brought the -- the work that we did 21 brought the NFL to the negotiating table and I believe that my 22 firm should have a multiplier that begins with a 2. 23 THE COURT: 24 MR. TARRICONE: 25 Okay. The only other thing I would mention, Your Honor, is we were directed by somebody at Mr. JA9155 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed116 07/13/18 DatePage Filed:8308/09/2019 of 124 Seeger - Argument 83 1 Seeger’s office to delete any time for people who didn’t have 2 a minimum of 50 hours. 3 question it, I did it. 4 I’m a team player, I did it, I didn’t And then I saw that -- afterwards that at least 5 seven firms have multiple timekeepers with less than 50 hours, 6 so we had to take out 73 hours or so, and I would ask that 7 they be put back in. 8 THE COURT: 9 MR. TARRICONE: 10 THE COURT: 11 MR. SEEGER: Okay, thank you. Thank you. Mr. Seeger. Your Honor, this was a breakthrough 12 legal case that is being studied in law schools throughout the 13 country, has now put the ability to settle personal injury 14 cases using Rule 23 and, you know, this constant -- you know, 15 this -- I’m trying to say this as tactfully as I can and it’s 16 something I would say to everyone in this room privately. 17 But to stand here and act as if it was just some PR 18 ploy or some PR case is just inaccurate. 19 from the fact that I think Mr. Tarricone led that committee 20 and did a great job? 21 reason. 22 Does that diminish I enhanced his lodestar by .25 for that He -- the case has gone from 2012 to January, 2017 23 which is our relevant time period. In that time he billed 24 $1.258 million, and I enhanced it by 25 percent to recognize 25 the work that he did. I understand he’s not happy with what I JA9156 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed117 07/13/18 DatePage Filed:8408/09/2019 of 124 Seeger - Argument 1 did, but that was my thinking behind it. 2 points that are really I think important. 3 84 Just a couple other You know, when I have not -- I have not put in any 4 of the time submissions, the work done for legal fees. 5 don’t think it’s appropriate to do it and that’s -- that’s the 6 right thing to do. 7 I I’m not complaining about that. But I don’t -- I also didn’t put in the time that 8 when Professor Rubenstein got the valuation of the settlement 9 wrong, I -- we went out, got the actuaries to revalue the 10 settlement which showed that the common benefit fees were 11 actually less than he had -- as a percentage of the total and 12 allowed individual retainer agreements to go up. 13 That -- even though I don’t have that same interest, 14 it was my job as a lead to do that and we did it and we’re not 15 billing the case for it. 16 because I think there’s a perception in the room that I 17 somehow am against the guys with individual -- I am not at 18 all, no problem for me so -- So just a couple things to point out 19 THE COURT: You made that pretty clear. 20 MR. SEEGER: 21 THE COURT: 22 All right, Mr. Rude -- Rudd -- Rude? 23 MR. RUDD: 24 THE COURT: 25 MR. RUDD: Yeah. I think that’s all I have. Okay, thank you. Rudd, Your Honor. Is it Rudd? Rude is good enough. Well, I hope I’m not, you know -- JA9157 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed118 07/13/18 DatePage Filed:8508/09/2019 of 124 Rudd - Argument 1 THE COURT: 2 MR. RUDD: Okay. 85 Okay, Mr. Rudd. Good morning, Your Honor, my name is 3 Gordon Rudd. 4 I’m appearing on behalf of Bucky Zimmerman, who is out of the 5 country and couldn’t attend -- 6 THE COURT: 7 MR. RUDD: 8 THE COURT: 9 MR. RUDD: 10 I am a partner at Zimmerman Reed Law Firm and Are you --- today. Are you a part of that Zimmerman firm? I am a managing partner at Zimmerman Reed, yes -- 11 THE COURT: 12 MR. RUDD: Oh, okay. -- and I’m appearing on behalf of Bucky 13 Zimmerman, who couldn’t be here today, and we’re pleased to be 14 able to present our arguments to the Court -- 15 THE COURT: 16 MR. RUDD: Okay. -- as to why we believe primarily that 17 all firms that were on the PSC including Zimmerman Reed should 18 be entitled to a multiplier based upon the factors that have 19 been described in Mr. Seeger’s declaration and Professor 20 Fitzpatrick’s declarations. 21 And I -- part of my presentation was around the 22 fairness to all the team players who were on this case that 23 Mr. McGlamry earlier spoke to. 24 he stated, but I wholeheartedly agree that this case involved 25 not just one or a few, but many lawyers who participated at JA9158 I’m not going to repeat what Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed119 07/13/18 DatePage Filed:8608/09/2019 of 124 Rudd - Argument 1 the very earliest stages. 2 proposed allocation is the fact that we’re not being 3 recognized with a multiplier. 4 86 We -- our primary objection to the We have been given a 1 multiplier which of course is 5 no multiplier at all. We’re receiving our straight time. And 6 we believe that our early involvement in the case, the 7 leadership roles that we played on behalf of the Plaintiffs’ 8 Steering Committee and our work specifically on the Ethics 9 Committee which was a committee that was created and appointed 10 later in the case to support and defend the settlement when 11 issues of poaching and promises of settlement loans and 12 diagnoses that have been referred to throughout the case 13 became prevalent, we -- we spearheaded that effort. 14 I’m going to address that slightly. But our -- just 15 as by way of background, our background, our role in 16 representing players started as early as 2009. 17 We were lead counsel in a class action involving NFL 18 players -- retired players called Dryer v. NFL that was 19 pending before Judge Magnuson in the District of Minnesota and 20 we reached a class settlement in that case on behalf of 21 players involving their publicity rights. 22 And during the -- the tenure of that case, we came 23 into contact with more than 1,600 players who contacted us to 24 discuss the use of their likeness and images and whether they 25 should be compensated for it. JA9159 And what we began to see during Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed120 07/13/18 DatePage Filed:8708/09/2019 of 124 Rudd - Argument 1 that time was cognitive issues with regard to players. 2 Players who were contacting us had cognitive issues. 3 And in 2010, we began to meet with players and we 4 began to meet with other attorneys and we met with Dr. Omalu 5 to discuss concussions in football, and that happened well 6 before this case started. 7 87 And by early 2011, our firm represented more than 8 350 retired players with regard to concussion issues after the 9 Dryer case finished. When the MDL was formed, we fully 10 supported the multi-district litigation and we supported the 11 case being transferred to the Eastern District of 12 Pennsylvania, and we met with Sol Weiss and Michael Housefeld 13 (phonetic) at Mr. Housefeld’s office to discuss the formation 14 of the MDL. 15 Once the case was formed and we were appointed to 16 the PSC, one of the earliest strategies in the case was to 17 file cases. 18 others including everyone on the PSC believed that creating a 19 critical mass -- a large number of cases so that the NFL 20 understood that players were coming forward and were willing 21 to present their claims at trial in a court of law was a 22 critical aspect of placing pressure on the NFL to perhaps 23 create the opportunity to explore resolution. 24 25 The leadership -- Mr. Seeger, Mr. Weiss and And we filed cases at the direction of lead counsel. We filed more than 350 claims in -- in multiple plaintiff JA9160 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed121 07/13/18 DatePage Filed:8808/09/2019 of 124 Rudd - Argument 88 1 complaints. And when we did that, Your Honor, we did it 2 understanding that we were going to represent each and every 3 one of those 350 individuals through trial, any appeals. 4 knew that we were going to be advancing costs and we knew that 5 we -- 6 THE COURT: 7 MR. RUDD: 8 Your Honor, it’s unknown because we never THE COURT: Well, do you think that the odds of winning -- 11 MR. RUDD: 12 THE COURT: 13 MR. RUDD: 14 Do you think you would have won? got to that point. 9 10 We It was --- were high? -- a very difficult case, Your Honor, a very difficult case -- 15 THE COURT: 16 MR. RUDD: Yes, I would so say. -- which -- which is why I believe, Your 17 Honor, that the early risk that we took because of the 18 uncertainty and the high -- the high possibility of various 19 defenses being won by the NFL should be compensated through a 20 multiplier. 21 That early risk, that early effort and the lawyers 22 who stepped forward to represent these players and make sure 23 the NFL understood these players were -- were not going to 24 just sit quietly is something that should very much be 25 appreciated by this Court and recognized by this Court through JA9161 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed122 07/13/18 DatePage Filed:8908/09/2019 of 124 Rudd - Argument 89 1 a multiplier. 2 Court, 4 to 5,000 resulted in common benefit to more than 3 20,000 players who registered for this settlement and who are 4 participating. 5 And in fact, the cases that were filed in this Those clients, those players who stepped forward 6 didn’t just get a settlement for 4 or 5,000 people, they got a 7 settlement for 20,000 people. 8 9 So to use a baseball analogy in a football case, while lead counsel may have negotiated a settlement that -- 10 that was a grand slam, we -- and by “we” I mean all the 11 lawyers who filed cases -- loaded the bases, and we believe 12 without loading those bases this settlement would not have 13 been possible. 14 Certainly there are other reasons for the settlement 15 -- the good work of lead counsel, the communications effort, 16 but the fact that these cases were filed played a very 17 important role. 18 And I know that Mr. Seeger diminished the value of 19 filing those cases by saying well, those -- those individual 20 -- those attorneys will be compensated through their 21 individual retainer agreements, but the fact of the matter, 22 like Mr. McGlamry earlier stated, the vast majority of our 23 clients will go through the BAP, but they’re not entitled to 24 compensation and yet they, by coming forward, helped achieve 25 this settlement for a far larger group. JA9162 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed123 07/13/18 DatePage Filed:9008/09/2019 of 124 Rudd - Argument 1 90 Additionally, Your Honor, the fees that we will 2 earn, I anticipate Mr. Seeger may stand up and say how many 3 cases we have that we’ll receive awards and the fees that 4 we’ll receive. 5 We’ve had -- you know, several claims, I don’t know 6 the exact number, it’s more than a dozen claims that have been 7 approved, but we have put in substantial efforts in 8 representing the individual clients as well. 9 work that has been done. 10 There’s a lot of So we believe that -- that although Professor 11 Fitzpatrick stated that the lodestars were properly adjusted, 12 the fact that we’re receiving a 1 when we were appointed to 13 the PSC, when we took early risk, simply doesn’t recognize 14 those efforts and those risks under the case law. 15 I just want to talk about other aspects of our 16 leadership in the case, and certainly, you know, we haven’t 17 had the opportunity to appear before the Court, but I can 18 assure the Court we have done a lot of work on behalf of the 19 Plaintiffs’ Steering Committee, on behalf of lead counsel in 20 ways to support the settlement and to support the litigation. 21 We worked on preemption issues, we worked on the 22 Master Complaint. We weren’t invited to the Settlement 23 Committee. 24 and we believe we would have been fully capable of 25 participating. We certainly would have been eager to participate, Mr. Zimmerman has led many multi-district JA9163 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed124 07/13/18 DatePage Filed:9108/09/2019 of 124 Rudd - Argument 1 litigations where billions of dollars have been paid to 2 individual victims. 3 91 I think he would have been a very meaningful 4 resource, but it was a small group and we -- we understand 5 that’s the way it goes. 6 as lead counsel in the NHL Hockey Concussion Litigation 7 pending in Minnesota and Mr. Zimmerman is lead counsel there. 8 9 Right now, Your Honor, we’re serving So, we certainly have a lot of -- a lot of capabilities and a lot of experience with regard to this and 10 we believe that leadership should be recognized. 11 briefly -- 12 THE CLERK: 13 MR. RUDD: Just turning Less than two minutes remaining. Thank you. Just turning to the Ethics 14 Committee work, Your Honor, Mr. Seeger discusses the work of 15 the Ethics Committee in his declaration at paragraph 20, 16 subparagraph h, and the Ethics Committee was formed later in 17 the litigation. 18 Mr. Zimmerman and Mike McGlamry both -- both 19 spearheaded that committee and it was when we began to see the 20 issue of poaching evolving where lawyers were soliciting 21 clients that they knew to be represented and -- and seeking to 22 represent them, promising them diagnoses, promising them 23 settlement loans which has been referenced today, and of 24 course the Court is well aware with the issues regarding third 25 party funding. JA9164 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed125 07/13/18 DatePage Filed:9208/09/2019 of 124 Seeger - Argument 1 92 We, I would submit, Your Honor, were the first to 2 present that issue to Mr. Seeger and to counsel. 3 looking at the issue as early as, you know, several years -- 4 as early as 2013 when we started seeing a number of our 5 clients moving to other law firms in groups. 6 We were And we started looking at the issue, we brought the 7 issue to lead counsel, the Ethics Committee was appointed, and 8 I think that the Ethics Committee has played a critical role 9 in supporting the settlement and defending the settlement 10 because without recognizing those issues, identifying those 11 issues and acting on those issues, the settlement could become 12 fraught with issues of -- of fraud and -- and improper claims. 13 And so we believe that the Ethics Committee work was 14 critical, it was work done to support the settlement which is 15 another factor that the Court we hope will consider in 16 approving a multiplier award to the Zimmerman Reed Law Firm. 17 Thank you. 18 19 THE COURT: Mr. Seeger, I have a question to ask you. 20 MR. SEEGER: 21 THE COURT: Yeah. Do you think -- do you believe that if 22 only five players were suing the NFL on an issue like this, 23 the result would have been very different than if -- than if 24 -- what is it, 800 or 8,000 or 9,000 -- I’m talking about the 25 people -- JA9165 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed126 07/13/18 DatePage Filed:9308/09/2019 of 124 Seeger - Argument 1 MR. SEEGER: 2 THE COURT: -- who sued individually, I’m not -- 3 MR. SEEGER: There’s no doubt about that, Your 93 Yeah. 4 Honor. 5 players that had brought cases prior to the MDL and had been 6 confronted with the preemption issue and didn’t do very well. 7 So and then I think I’ve been through this many times about 8 the -- 9 In fact, there are a string of cases involving several THE COURT: 10 settlement issues. 11 settlement there. But I don’t know -- I don’t know those I don’t know how hard they worked on 12 MR. SEEGER: 13 THE COURT: I don’t know either. I mean, that I -- that I really don’t 14 know, but I do think -- I do think the fact that this was a 15 public case, it would have been a public case if one -- if one 16 player had fought the NFL -- 17 MR. SEEGER: 18 THE COURT: No doubt. -- or if a number of players. I mean, 19 it was the whole issue of discovery and everything else that 20 went into this. I mean, that was -- 21 MR. SEEGER: 22 THE COURT: No doubt. -- that was -- I mean, I sat in on those 23 -- on what was presented to me and there is no question that 24 discovery played a very, very, very large role. 25 MR. SEEGER: Yes. JA9166 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed127 07/13/18 DatePage Filed:9408/09/2019 of 124 Seeger - Argument 1 2 THE COURT: 94 Number of players less so; discovery, very, very important role, and I can be -- testify to that. 3 MR. SEEGER: Yeah. Yeah, and to this day the press 4 is still, you know, trying to get their -- their hands on 5 those -- on whatever documents they can. 6 I just wanted to make to make a couple of -- let me 7 make an observation generally about the settlement, not 8 necessarily specific to Zimmerman Reed -- 9 THE COURT: 10 Okay. MR. SEEGER: -- because I’ve heard a number of 11 people stand up here and say, you know, Judge, we’ve got all 12 these clients that won’t be diagnosed with a compensable 13 injury and we’re still servicing them and putting them through 14 the BAP. 15 By the way, that is noble, that is important, the 16 fact that they have these great lawyers shepherding them 17 through the settlement. 18 would have happened to those players without the settlement if 19 they didn’t have a compensable injury? 20 But let’s also be fair and say what Where would -- where would they be? I mean, they 21 would be -- right now they’re getting BAP tested and we’re 22 hopefully catching problems early, they’re getting into the 23 healthcare system. 24 the point is that it’s not a -- it is a positive thing and the 25 lawyers who accepted those representations, just as I do in Would these -- you know, I mean I guess JA9167 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed128 07/13/18 DatePage Filed:9508/09/2019 of 124 Seeger - Argument 1 many cases where we also accept individual representations, 2 you’re there to the bitter end with these clients. 95 3 You can’t just -- you know, obviously you’ve got to 4 stay with them all the way through it. 5 talk a little bit about the Ethics Committee because I think 6 this is the first time I’m responding to it. 7 So and I do want to Yeah, it was created specifically because there were 8 firms that were very -- and I was too -- was very concerned 9 about this, what you’ve heard of as the “poaching issue.” 10 soon as the case was settled there were a number of all the 11 sudden claims handlers and lawyers who started blitzing 12 clients represented by these guys in the courtroom who had 13 been with the case since 2010, some of them. As 14 And they were taking clients from them. 15 offering them cheaper deals and it was a really unfortunate 16 thing and I think some of that anger is directed my way 17 because I think the belief is I could have done more about it. 18 They were The reality was we all had the obligation to the 19 class and as much as I have been out there doing town halls 20 telling players that that is -- that would be inappropriate, 21 there’s a lawyer who took all this risk, he was with you from 22 the beginning and he should be with you in the end, and I also 23 have said to these lawyers and I want to say it in this 24 courtroom, that to the extent somebody has poached their 25 client after the settlement and they’ve done a lot of work, JA9168 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed129 07/13/18 DatePage Filed:9608/09/2019 of 124 McCorvey - Argument 1 they can make an application still to Judge Strawbridge and 2 talk about where those fees go. 3 THE COURT: 4 5 6 7 96 Absolutely, that’s a very -- absolutely. That is understood. MR. SEEGER: Yeah. I just -- I just think it’s important to point that out. THE COURT: That’s very important because he’s going 8 to evaluate the amount of work that each lawyer did on each 9 individual -- for each individual client -- 10 MR. SEEGER: 11 THE COURT: Yeah. -- and somebody came in and poached may 12 not -- very well may not have done as well as somebody who has 13 held a hand of this client -- this class member for a long 14 period of time. 15 MR. SEEGER: 16 THE COURT: 17 Right, thank you. So I think that’s certainly something that should be argued to Judge Strawbridge. 18 MR. SEEGER: Thank you. 19 THE COURT: 20 MR. MCCORVEY: Okay, Mr. McCorvey. I was going to say good morning, Your 21 Honor, but it seems like we’re at noon now, so I’m going to 22 say good afternoon. 23 24 25 THE COURT: Yes, well we recess when the Judge gets hungry so I’m not hungry yet. MR. MCCORVEY: All right. JA9169 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed130 07/13/18 DatePage Filed:9708/09/2019 of 124 McCorvey - Argument 1 THE COURT: 2 MR. MCCORVEY: 97 So -All right, well again, Your Honor, my 3 name is Derriel McCorvey. 4 be heard and I also thank you for your foresight in appointing 5 me to this committee. 6 I thank you for this opportunity to As I stood here at the first hearing I recognized 7 that I was the only former player in the room and the only 8 African American and I really appreciate Your Honor trying to 9 achieve some level of representation of the punitive class. 10 11 12 THE COURT: I think you were the only African American who applied, if I’m not -MR. MCCORVEY: Well, yeah, it might have been that 13 case, Your Honor, I didn’t get to see all the filings. 14 want to talk more so and I’m not here to pump my chest and I 15 don’t have an ego, Your Honor. 16 But I I don’t play ball anymore, I just try to live a nice 17 peaceful life. 18 what he thought was best, and I’m here to suggest to the Court 19 that I fundamentally disagree with his approach to allocating 20 the fees in this case and I think it’s telling that 16 other 21 law firms has joined in our universal opposition to it. 22 But as Mr. Seeger said earlier, he submitted We would favor a either committee where various 23 ideas on appropriate lodestars -- for instance, if you were 24 appointed to the PSC, your minimum lodestar should be a 2.0, 25 Your Honor. A 1.0 lodestar is no lodestar at all. JA9170 It doesn’t Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed131 07/13/18 DatePage Filed:9808/09/2019 of 124 McCorvey - Argument 98 1 take into consideration that we were here early on in the 2 litigation, we incurred assessment costs that we wasn’t going 3 to -- we wasn’t sure that we were going to get back. 4 5 6 7 8 9 We invested expenses in traveling for meetings, we participated in conference calls -THE COURT: Did you get -- you got reimbursed for those expenses? MR. MCCORVEY: Yes, Your Honor, I got reimbursed but when you look at -- I think when a Court values what a lawyer 10 did to achieve an outcome, you look at the amount of financial 11 resources that that lawyer risks, the -- along with assessment 12 and expenses, and the likelihood of failure or success in a 13 litigation. 14 I want to echo many of the lawyers that have spoken 15 today that at the time we spent that money, we weren’t sure 16 with how you were going to rule on a preemption issue. 17 We knew very well about the import of the CBA so 18 that was the risk that many of my colleagues are echoing that 19 wasn’t really factored in for a PSC member to not receive a 20 minimum lodestar of 2.0. 21 I think the allocation that Mr. Seeger did to the 22 extent that he was essentially Judge and jury is also why I 23 think this Court needs to either appoint a Special Master or 24 require a committee to be formed of the PSC and PEC to 25 determine the matter. As one counsel said, we wouldn’t have JA9171 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134Page: Filed132 07/13/18 DatePage Filed:9908/09/2019 of 124 McCorvey - Argument 1 this public fight if that would have been done because a 2 consensus would have been reached. 3 person deciding who had a significant interest -- 4 THE COURT: 5 MR. MCCORVEY: 6 99 It wouldn’t have been one He’s not deciding. Well, you’re right, Your Honor, he’s not -- 7 THE COURT: I’m the Special Master. 8 MR. MCCORVEY: 9 THE COURT: Yes, Your Honor. Take a look at her. 10 MR. MCCORVEY: 11 THE COURT: 12 MR. MCCORVEY: Yeah, I stand corrected. Here she is. I stand corrected, Your Honor, you 13 are the ultimate decision maker on it. 14 have went smoother. 15 really doesn’t reflect well on -- on trial lawyers in general. 16 THE COURT: But the process could We wouldn’t have this public fight that I have to take some responsibility on 17 that because frankly, he was the face that I saw for years, he 18 and Mr. -- Professor Issacharoff are the people that I’ve seen 19 for years and years and years and they have been the face of 20 this and I have felt that they would be in the best position. 21 MR. MCCORVEY: 22 THE COURT: Yeah. I probably -- I will reevaluate but it 23 think that they -- I think I still believe that, that he -- 24 but I certainly will reconsider it, whether or not he is in 25 the best position to allocate. JA9172 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 133 07/13/18 Date Page Filed: 100 08/09/2019 of 124 McCorvey - Argument 1 MR. MCCORVEY: 100 And, Your Honor, respectfully that’s 2 what a lot of the objectors have somewhat of an issue with. 3 wanted to be here, Your Honor, I wanted to be included in the 4 process, I wanted to take my appointment to serve this class 5 -- the punitive class. 6 But frankly, Your Honor, since the terms sheet was 7 reached in 2013, we were pretty much -- the PSC and the PSC 8 (sic), we were excluded from that process -- 9 10 I THE COURT: Well that I can’t -- that’s something that’s very hard -- 11 MR. MCCORVEY: 12 THE COURT: 13 MR. MCCORVEY: Yeah. -- for me to adjudicate on. No, you can’t, and I’m not asking you 14 to adjudicate it, Your Honor. 15 that 1 when you’re looking at the appropriateness of whatever 16 awards Your Honor determines to be reasonable and appropriate 17 in this case. 18 But I’m asking you to consider And I would also ask that -- for you to look at -- I 19 think you asked the question earlier did -- to Mr. Seeger, do 20 you think thousands of plaintiffs filing suit had more of an 21 effect than just five. 22 Your Honor, it was the critical mass. 23 And I think the answer is certainly, That was the strategy that the PSC under the 24 leadership of Mr. Weiss and Mr. Seeger decided that this is 25 what we’re going to do, everybody, we’re going to start filing JA9173 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 134 07/13/18 Date Page Filed: 101 08/09/2019 of 124 McCorvey - Argument 1 cases, we’re going to get everybody on the same page -- 2 THE COURT: 3 MR. MCCORVEY: 4 THE COURT: 5 6 101 I appreciate that. -- and I think that has to be valued. Well, that’s why I asked that question. I appreciate that. MR. MCCORVEY: Okay. You know what? And again, 7 Your Honor, I’m not here to attack anyone. 8 Seeger’s a fine lawyer. 9 that I was prevented from earning more than 331 hours in the 10 I think Mr. My -- my general sentiment is that -- litigation. 11 Not because I wasn’t available, not because my firm 12 didn’t have the resources to devote more time, it’s just that 13 systematically, we were prevented from doing work after the 14 settlement term sheet was executed. 15 again, I was on the Communication Committee, I worked under 16 the leadership of co-leads, I worked with my clients, I did 17 various interviews on behalf of the PSC. 18 My role, Your Honor, But again, I think that the whole value of the 19 collective group was the critical mass, along with the 20 negative adverse publicity that the NFL had to endure because 21 of the Communication Committee was a factor in bringing about 22 the settlement. 23 And the -- the polishing it up and executing it 24 later I don’t think should be valued more than the -- the 25 genesis that got the settlement, drove it to its fruition. JA9174 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 135 07/13/18 Date Page Filed: 102 08/09/2019 of 124 Molo - Argument 1 THE COURT: 2 MR. MCCORVEY: 3 THE COURT: 4 9 Thank you for your time, Your Honor. All right, do you wish to be heard, Mr. MR. SEEGER: No, Your Honor. I don’t have any specific comments. 7 8 Thank you. Seeger? 5 6 THE COURT: recess, okay? Okay. I’m going to take a five-minute And I’ll be back on the bench. (Recess taken) 10 THE COURT: Okay. 11 THE CLERK: Your Honor, back on the record, Your 13 THE COURT: All right, who was speaking? 14 MR. MOLO: 12 102 Honor. Good afternoon, Judge Brody. Mr. Molo? Thank you 15 very much for hearing us here this morning on behalf of the 16 Feneka objectors (phonetic). 17 invited to the party, but I think eventually we like to think 18 we became the life of the party and so it’s a pleasure to be 19 here this morning, and in all sincerity, with the -- with the 20 great lawyers that did achieve a wonderful, wonderful 21 settlement. 22 I’d like to say that we weren’t There’s been criticism of us in some of the papers 23 that were filed that we were some kind of anarchists or 24 terrorists that were out to blow up the settlement, and that 25 could not be farther from the truth. JA9175 The very -- Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 136 07/13/18 Date Page Filed: 103 08/09/2019 of 124 Molo - Argument 1 THE COURT: 103 I looked toward you, there’s no -- I 2 asked you to organize the defendant -- the objectors, there’s 3 no question about that. 4 MR. MOLO: And we clearly up front said that we 5 wanted a settlement. 6 notion of a settlement. 7 saw a settlement that was of major import, highly visible 8 case. 9 facts, but it was legally deficient, Judge. 10 We did not in any way object to the We wanted one that was fair. And we It had ramifications beyond the confines of its own And in the face of strenuous, strenuous opposition 11 from some of the leading lawyers in America on the plaintiffs’ 12 part, as well as the NFL that had three excellent law firms 13 representing it, we challenged that and as a result of that, 14 we proposed specific solutions to remedy the deficiencies and 15 fortunately for the class, this Court -- the injured class, 16 this Court agreed. 17 great benefits to the class. And as a result of that, we brought about 18 You know, objectors -- 19 THE COURT: 20 MR. MOLO: Why don’t you articulate them. Sure. I have, as a matter of fact, 21 Judge, a set of slides here that I can give the Court, as well 22 as put them up on the screen. 23 too. 24 MR. SEEGER: 25 MR. MOLO: We have a set for Mr. Seeger Thank you. And as we get into the specifics of -- of JA9176 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 137 07/13/18 Date Page Filed: 104 08/09/2019 of 124 Molo - Argument 104 1 the actual financial benefits, Judge, I do want to call 2 attention to the role that we played merely by challenging the 3 settlement. 4 you know, objectors play a substantial role by providing the 5 clash of adversaries to generate information that a Judge 6 needs to decide a case. 7 As Judge Posner said in the Pella Windows case, That’s gone in the settlement context. So if we 8 were to go through the specific benefits that were achieved as 9 a result of our objection, they would be as follows. 10 first one -- and I -- and the screen is not coming up -- 11 THE COURT: 12 MR. MOLO: 13 THE COURT: 14 15 The Well I have it -Okay. -- and I think I’m the Special Master here. MR. MOLO: So the first -- and as we get into the -- 16 into the details of the numbers, if Your Honor wishes in terms 17 of our expert’s calculations and such, my colleague, Mr. Nitz, 18 will be happy to step up and address the Court as well too. 19 And my colleague Mr. Hangley is here, and the 20 objection by the Feneka Objectors was brought not just by Molo 21 Lamken, but by the Hangley Aronchick firm as well. 22 to the specific benefits, by including NFL Europe, which was 23 substantially excluded -- players who had played just in NFL 24 Europe -- 2,300 players that would not have gotten a 25 meaningful benefit were given a meaningful benefit by -- and JA9177 So and as Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 138 07/13/18 Date Page Filed: 105 08/09/2019 of 124 Molo - Argument 105 1 under the BAP, be included in the BAP, getting exams and 2 increasing the amount of eligible seasons that they would be 3 allowed under the settlement, the value there is increased by 4 $36.8 million. 5 On the modification of the BAP, which the Court 6 agreed that the cap on the BAP which had been $75 million 7 would be lifted, by providing additional exams and providing 8 full supplemental benefits that would not have been there had 9 the $75 million cap been in place, $29.6 million -- 10 11 THE COURT: what happened? 12 MR. MOLO: 13 THE COURT: 14 You -- did you ask for that, or is that We did. I don’t have any recollection that that was done because you asked for it. 15 MR. MOLO: 16 THE COURT: 17 MR. MOLO: 18 THE COURT: 19 MR. MOLO: 20 THE COURT: It -- well, we asked for it and -I mean, that was done --- and it was done. -- because the Judge asked for it. We asked for it and it was done. Well, it may have been incidental but 21 that was not, as far as I know -- and I’ll have to check on 22 that. 23 MR. MOLO: It was, Your Honor, and in fact we had 24 slides on that and I can -- I can provide you with specific 25 citations from our brief and petition. JA9178 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 139 07/13/18 Date Page Filed: 106 08/09/2019 of 124 Molo - Argument 1 2 THE COURT: MR. MOLO: 4 THE COURT: 5 MR. MOLO: 6 THE COURT: Okay, we -- we did. We did. You raised it. We raised it. If you told me you raised it I’ll accept that -- 8 MR. MOLO: 9 THE COURT: 10 I’m not saying you didn’t raise it, but I didn’t think you were the impetus of it. 3 7 106 Okay. -- but that does not mean that that was the reason for it. 11 MR. MOLO: 12 THE COURT: 13 MR. MOLO: Okay. I’m -But the case law -- the case law says 14 that if an objector raises an issue and the Court modifies or 15 the settlement is modified following that, the objector’s 16 entitled to credit for that modification. 17 18 19 THE COURT: Or lucky, one of the two. Okay, but go on. MR. MOLO: Well, Your Honor, you know, in all 20 seriousness, this Court gave preliminary approval -- you did 21 great service to the class in the very first instance 22 rejecting the settlement that was initially proposed to you. 23 That’s how closely you were -- you were monitoring this 24 without -- sua sponte, before we could even object. 25 And afterwards class counsel and the NFL came to the JA9179 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 140 07/13/18 Date Page Filed: 107 08/09/2019 of 124 Molo - Argument 107 1 Court and said we’ve got a revised settlement that provides, 2 you know, additional benefits and the Court again scrutinized 3 that settlement and gave it preliminary approval. 4 We came in and very vigorously, spending as we 5 pointed out collectively over $4 million in time, our two 6 firms, contested that with extraordinary expert testimony. 7 had nine of the leading expert -- 11 of the leading experts in 8 the world that provided affidavits. 9 We had over 1,000 pages of exhibits. We We had 10 extraordinary briefing that we provided to the Court, and 11 after that was provided and after we had a very vigorous 12 fairness hearing which I stood before this Court at this very 13 podium, my friend Mr. Seeger got up, Mr. Karp got up and there 14 were a handful of other people got up, but it was a very 15 vigorous full-day hearing. 16 After that the Court issued its order saying that 17 the settlement could be improved if the following changes were 18 made and the four that I’ve identified here -- and we’ve gone 19 through two of them -- are the change as we said by allowing 20 for NFL Europe, the modification of the BAP to lift the cap, 21 the waiver of the appeal fee which is fairly valued at $11.6 22 million for financial hardship waiver, and the last being the 23 extension of the CTE benefit. 24 25 Now, we didn’t get what we wanted. to be unlimited. We wanted that But it was extended, at least to the period JA9180 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 141 07/13/18 Date Page Filed: 108 08/09/2019 of 124 Molo - Argument 108 1 of final approval, and that picked up another 111 additional 2 class members. 3 Unfortunately we know that there are 111 that had 4 passed away, and the fair value of that based on the NFL and 5 class counsel’s expert’s valuation of what the general value 6 would be -- the average value of a settlement would be of 7 $400-and-some-thousand dollars, is $44.6 million. 8 9 10 So together, Judge, the value of those improvements is approximately $122 million, about 15 percent, 16 percent more than the value of the settlement had been. 11 I don’t for one moment take away from the 12 extraordinary work that Mr. Seeger did, from the extraordinary 13 work that Mr. Weiss and all the rest of the lawyers that sit 14 in this room did. 15 But, I can tell you to a certainty that had we not 16 been here, this injured class, these players suffering from 17 terrible, terrible circumstances and terrible diseases would 18 not have gotten the treatment that we’ve gotten. 19 By including 2,300 players that played only in NFL 20 Europe, we increased the meaningful benefit to more than ten 21 percent of the class. 22 doing this work over time and a lot of it on the defense side 23 rather than the plaintiffs’ side, it’s very rare to see a 24 situation where an objector comes in and would be entitled to 25 the kind of fee that we’re requesting, but it’s even more rare I mean, I will say, Judge, you know, in JA9181 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 142 07/13/18 Date Page Filed: 109 08/09/2019 of 124 Molo - Argument 109 1 when you would say that an objector has come in and done the 2 kind of good that we were able to do. 3 And, you know, we’ve been criticized as having 4 delayed the proceedings. That could not have been farther 5 from the truth. 6 where we raised some of these issues. 7 us. 8 there. We came in and we asked first to intervene Class counsel ignored We objected to preliminary approval, the issue wasn’t 9 The 23(f) petition that we took to the Third Circuit 10 did not delay anything at all. 11 proceeded just as it was scheduled to proceed and, you know, 12 to the extent that they claimed that that was frivolous 13 somehow, they’ve actually changed the rules to address the 14 issue that we raised in the 23(f) petition. 15 In fact, the fairness hearing As far as our appeal goes, we did file an appeal to 16 the Third Circuit, but that appeal was not in any way deemed 17 frivolous. 18 deal with a frivolous appeal. 19 the class counsel vociferously and aggressively opposed that 20 appeal. There is a means for the Third Circuit to -- to It didn’t do so. The NFL and 21 They set aside two hours for oral argument and once 22 that appeal was decided, we looked at it and even though some 23 of these statements that have been made in some of the briefs 24 are just wrong, I mean, we did not file a petition for 25 rehearing on en banc, and we did not file a sur petition. JA9182 We Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 143 07/13/18 Date Page Filed: 110 08/09/2019 of 124 Molo - Argument 110 1 went about trying to achieve a settlement and get it done in a 2 way that we thought was going to be most expeditious. 3 When there were limitations on what was done at the 4 -- at the conclusion and when we didn’t get all the relief 5 that we wanted from the fairness hearing, we actually engaged 6 in independent negotiation with the NFL, to Mr. Seeger’s full 7 knowledge. 8 9 I called up Mr. Seeger and said, Chris, you know, I don’t really want to appeal, I want to see if the NFL might go 10 along with what we want to expand the CTE benefit because 11 they’ve got some money they could devote to this, and he said 12 go have at it. 13 If they could -- if you can get them to, you know, 14 give -- give you more, have them give you more. 15 but I didn’t succeed. 16 interest of the class first. 17 And I tried, But we have had at all times the The amount that we requested is in our papers and 18 the amount that we’ve asked for is $20 million which I don’t 19 for a moment say is not a significant amount of money, but 20 when you look at the context of what it represents in terms of 21 the value -- increased value to the class, it’s well within 22 the precedent that this Circuit and the Courts throughout the 23 country have allowed. 24 THE CLERK: 25 MR. MOLO: We achieved effectively -Less than one minute, sir. I’m sorry? JA9183 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 144 07/13/18 Date Page Filed: 111 08/09/2019 of 124 Molo - Argument 1 THE CLERK: 2 MR. MOLO: Less than one minute. We achieved effectively over a $100 3 million settlement through our objection. 4 million lodestar between our firms. 5 Now, we had a $4.3 We were extraordinary efficient and, you know, in 6 the Shop N’ Stop case which is an Eastern District of 7 Pennsylvania case, they quote the Class Action Reporter as 8 saying that in a $100 million case, a multiplier of 4.5 is 9 average, so our multiplier at about 4.6 was -- was right in 10 111 that neighborhood. 11 I know that when you consider the risk that we took 12 which far exceeded the risk that the plaintiffs -- plaintiffs’ 13 counsel had taken that it had taken on the case because by the 14 time we got involved, they had a settlement, they pretty much 15 knew that they were going to get paid something. 16 nothing. 17 We knew We didn’t -- we were facing these armies of both the 18 class counsel and the armies of the NFL and we came in and 19 risked over, you know, $4 million of time and $50,000 in 20 expenses -- 21 THE CLERK: 22 MR. MOLO: 23 THE COURT: 24 MR. MOLO: 25 THE COURT: Time, sir. -- to achieve that $100 million, Judge. Thank you very much. Thank you. Okay. JA9184 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 145 07/13/18 Date Page Filed: 112 08/09/2019 of 124 Seeger - Argument 1 MR. SEEGER: 112 I was reminded at counsel table by a 2 statement by Justice Scalia. It says if you ride with the 3 cops you don’t cheer for the robbers. 4 did nothing but try to blow this deal up from day one, Your 5 Honor. Mr. Molo and his crew 6 The fact that he comes in here right now to take 7 credit for changes that Your Honor was discussing with the 8 parties that even predated the final approval hearing just 9 shows you how out of touch they really are with what happened 10 in this case. 11 Let’s talk about the waste, the 23(f) -- what a 12 complete waste of time that was. He says it was no delay at 13 all. 14 oral argument, they dismissed his 23(f) appeal, and although 15 there was a concurrence, they all agreed with the results. 16 It was -- it was not timely, it was not properly Well, it’s true because he was thrown out 24 hours after 17 brought. 18 that. 19 not find one case, by the way, let’s be really clear, he can’t 20 because he would have cited to it where an objector was paid 21 anything like he’s asking for. 22 typically. 23 That’s a waste of time. He wants to be paid for He talks about the -- so there are -- there -- you will They get paid nothing I put a $150,000 recommendation for one reason at 24 all, because I was on the phone call when Your Honor asked him 25 to coordinate with the other objectors. JA9185 I felt that was Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 146 07/13/18 Date Page Filed: 113 08/09/2019 of 124 Lubel - Argument 1 somewhat of a court-appointed position and that the Court 2 deserved deference for that -- not Mr. Molo, but the Court 3 deserved deference for that. 4 recommendation. 5 113 So for that reason, I made that You won’t even find a catalyst case -- in the 6 typical catalyst situation where the objector comes in and 7 says we want changes, you accommodate those changes, they then 8 get on board and support the settlement. 9 they 10 They didn’t do that, continued to try to blow it up. And they put this case at risk every chance they 11 could on their one point that they knew they were wrong on and 12 they -- and we had to go through a 13 to prove them and that was that we weren’t compensating CTE. 14 He acts like he doesn’t understand the deal but he two-and-a-half year delay 15 understands we compensated the disease sets associated with 16 CTE, and he also well knows that you can’t compensate CTE -- 17 you cannot diagnose CTE in living people. 18 time, he should get zero, Your Honor. It was a waste of 19 THE COURT: Okay. I have one more. 20 MR. LUBEL: Good afternoon, Judge. 21 THE COURT: Good afternoon. 22 MR. LUBEL: I have been referred to by Mr. Seeger as 23 both the nit-picker and the hair splitter. 24 probably both. 25 Mr. Lubel. I assure you I am I want to address first the -- MR. SEEGER: I’ll tell you what I really think in a JA9186 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 147 07/13/18 Date Page Filed: 114 08/09/2019 of 124 Lubel - Argument 1 114 minute, okay? 2 MR. LUBEL: I want to address first, Judge, the 3 three things that he has specified in his declaration that are 4 particular to our law firm and its claim for common benefit 5 fees. 6 this Court never set a deadline for that claim. 7 One, he says that the claim is voided, when in fact The closest we came to it is when you invited others 8 if they had counter-declarations to his allocation and that’s 9 what we did. We timely filed our counter -- our counter- 10 declaration, his allocation requesting $450,000 for our time. 11 That’s one. 12 He claimed that we were belated. Two, he claimed that all of the discussions that I 13 raised in my counter-affidavit were not at his request or not 14 at anybody’s request on the leadership, 15 leadership team. 16 the plaintiffs’ And I find that interesting, first of all because a 17 lot of the common benefit that I personally provided to this 18 group was communications I had with Mr. Seeger that he then 19 delegated -- I guess delegated is the right word to Sol Weiss 20 on what has become and you’ve heard from today, the generally 21 accepted or generally consistent with language. 22 In the first settlement agreement that you rejected, 23 Judge, it just said “consistent with.” 24 Level 1.5 and Level 2, the diagnosis had to be consistent with 25 and it led to Exhibit 2, neuropsychological battery, and I JA9187 When you looked at Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 148 07/13/18 Date Page Filed: 115 08/09/2019 of 124 Lubel - Argument 115 1 went to Chris first who delegated the conversation to Sol and 2 I said, Sol, look, you’re telling us that pre-effective date 3 settlements are going to be covered by this. 4 And, there was no textbook definition or diagnosis 5 of Level 1.5 or Level 2 before this settlement was ever 6 announced and so you’re not going to have a pre-effective date 7 diagnoses that amount to that, and we had spirited 8 conversations about it and it proceeded changes. 9 And when you look at the next or revised draft of 10 the settlement, Judge, what you’ll see is they substituted 11 “consistent with” for “generally consistent with” in those 12 sections. 13 But then more importantly when you look at 6.4B, an 14 entirely new section appeared and that is the section that 15 said for the avoidance of any doubt, generally consistent with 16 in this agreement does not mean that there must be identical 17 diagnostic criteria, testing protocols or documentation. 18 And so we think those conversations that I had with 19 Mr. Weiss that I have now learned -- or they were in charge of 20 the Medical Committees, led to changes, at least the spirited 21 discussions we had that have improved the settlement. 22 Also, Judge, I was involved in -- I spoke to you, I 23 hadn’t seen you in about three-and-a-half years, it’s good to 24 see you, I was a spokesperson, I was an objector and I spoke 25 at the -- at the fairness hearing at the request of Mr. Molo. JA9188 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 149 07/13/18 Date Page Filed: 116 08/09/2019 of 124 Lubel - Argument 116 1 We prepared for and we objected, we made good 2 arguments, and the Court did make substantive suggested 3 changes to the settlement that were actually implemented, in 4 part because of the arguments that were raised by all the 5 objectors. 6 Following the conclusion of that hearing, I was 7 approached by a lawyer out of Beaumont named Matt Matheny, 8 Your Honor, and he had asked that I round up, discuss with all 9 of the objectors what their prioritized issues were so that I 10 could have a meeting with Gene Locks. 11 And I assure you, I didn’t show up and -- at Fisher 12 Island, Miami unannounced to -- to Gene’s place with Matt 13 Matheny to talk about the objectors’ positions, Judge. 14 -- I called them all, I emailed them, I went and met with Mr. 15 Locks about what the position was, this is post-certification 16 hearing. 17 I had And then after that, Gene asked me if Matt and I 18 would both meet with Chris Seeger at a restaurant in New York 19 and we all dined together and we then -- we then again talked 20 about what the objectors’ positions were and whether any 21 agreements could be reached. 22 We had a pleasant meeting. At that time Mr. Seeger 23 was truly a charming guy. Following that dinner, Your Honor, 24 I have multiple text messages with -- with Chris at his 25 request where he’s asking me to calm down Tom Demetrio JA9189 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 150 07/13/18 Date Page Filed: 117 08/09/2019 of 124 Lubel - Argument 1 (phonetic), who ultimately did not object. 2 objected -- he ultimately did not appeal. 3 117 I mean, he But I kept in constant or consistent I should say, 4 communications with Locks and Seeger and others trying to 5 reach a deal post-fairness hearing prior to the appeal being 6 filed. 7 in Chris’s declaration that all those discussions that I 8 reference in mine were not at his request or Mr. Locks’ 9 request. 10 And so I wanted to address specifically the statement Because there’s just no way that it was a 11 coincidence that we all sat down at the same dinner table in 12 New York City. 13 his place in Fisher Island. 14 successful, but I did what they asked me to do. 15 It’s not a coincidence that I met Mr. Locks at I tried, Judge. I was not And I want to talk to you more broadly about the 16 allocation. 17 your contractor to build your house correctly and on time, you 18 didn’t give him the money up front. 19 Where I grew up I was taught that if you wanted I was told that you paid him over time, that you 20 monitored his work and if you were really smart, you held some 21 money back so that you could get that punch list done. 22 Professor Rubenstein when he issued his first report 23 to you, Judge, said what they were trying to do here, what the 24 class counsel petitioned for fees was doing was essentially 25 asking you to pay them in one year for 65 years’ worth of fee JA9190 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 151 07/13/18 Date Page Filed: 118 08/09/2019 of 124 Lubel - Argument 1 work, and that’s -- that’s what concerns me, Judge. 2 legal obstacles to both paying what they’re asking for and 3 providing a bonus now. 4 We’ve written extensively on that. 118 There’s It’s in our 5 motion for reconsideration to this Court, it’s referenced in 6 my declaration here related to this specific hearing, Judge. 7 It would be a travesty for the Court to deplete 8 what’s remaining of the $112-and-a-half million based on work 9 that’s been done to date when we know what the record shows us 10 is that the projections have not been met. 11 $411 million in payments. 12 There’s not been Those $411 million in notices are subject to 13 appeals. 14 according to the -- the claims administrator’s website. 15 They’re way behind the NFL’s projections on Alzheimer’s, Level 16 1.5 and Level 2. 17 To date, there’s been $183 million in payments Judge, they represented to you -- the NFL 18 represented to you in 12 months you would see payments on 19 approximately 580 of those three categories and according to 20 the claims administrator’s website, to date only 85 people 21 have been paid in Alzheimer’s, Level 1.5 and Level 2. 22 This has led to much disharmony and dissension 23 amongst these lawyers in here. 24 their best behavior today, Judge, but we know from the 25 pleadings that Anapol Weiss -- JA9191 They’ve -- they’ve been on Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 152 07/13/18 Date Page Filed: 119 08/09/2019 of 124 Seeger - Argument 1 THE CLERK: Less than two minutes, sir. 2 MR. LUBEL: Thank you. 119 That Anapol Weiss has -- has 3 questioned, has called into question at a public pleading 4 Seeger Weiss’s -- both their -- their hours -- 5 THE COURT: Are you talking about lawyer’s fees now? 6 MR. LUBEL: Totally, I am talking about the fees. 7 THE COURT: And what are you trying to say? 8 MR. LUBEL: I’m trying -- what I’m trying to say -- 9 THE COURT: In one minute, because I don’t 10 understand what you’re trying to understand about the lawyer’s 11 fees. 12 MR. LUBEL: What I’m trying to say is that three out 13 of the four class counsel you’ve appointed, Judge, they are 14 contesting the fees that Seeger Weiss is claiming. 15 Weiss’s firm has filed a public pleadings questioning both the 16 hours and the billing rate. 17 Sol You yourself in an order, Judge, you’ve -- you have 18 held that the billing rates were unreasonable. 19 April 5th order. 20 a committee, Judge, but we need to see the data that -- the 21 hourly data that was submitted to you in camera. 22 That’s in your For us to do this right, we do need to have We need to see the CMO-5 data that allegedly started 23 in 2012 which is supposed to be their quarterly billings. 24 That was their timekeeping and any audit reports from that. 25 Once we get the foundation -- Judge, a house is JA9192 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 153 07/13/18 Date Page Filed: 120 08/09/2019 of 124 Seeger - Argument 120 1 built on a foundation -- once we get that, then the Court can 2 decide, although we don’t think a multiplier is going to be 3 warranted any time soon, if warranted at all under the case 4 law, Judge. 5 Clearly, a bonus is not applicable at this time. 6 don’t want to stop people from getting paid fairly, but you 7 can -- you can set up a committee, Judge, you can circulate 8 the data and people an start getting paid now. 9 to -- we’re not trying to stop that from happening. 10 We We don’t want Thank you for your time. 11 THE COURT: Thank you. 12 MR. SEEGER: This guy’s a doozy because he stands 13 here and he talks about “we” and all the -- I mean, he’s a -- 14 he’s one of the objectors who also tried to blow up the 15 settlement. 16 hearing he misread that he got up there and he misread a 17 provision in the settlement and he still misreads it. And to this day even at the final approval 18 All he had to do was go online today and he would 19 have seen that there are 342 claims that have been paid for 20 $296 million. 21 public domain correct. 22 take credit for. 23 He can’t even get information that’s in the Let’s just talk about what he wants to First of all, he didn’t file a request for fees when 24 he was supposed to. Mr. Molo did that at least. 25 request for fees in his objection. JA9193 He put his I mean, arguably he’s Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 154 07/13/18 Date Page Filed: 121 08/09/2019 of 124 Seeger - Argument 121 1 late. I don’t think he should get anything whether he’s on 2 time or not anyway because of the role that he played here. 3 He’s talking about improving a settlement that all 4 he worked to do was to blow up, up until it was finally -- 5 cert was denied by the Supreme Court. 6 And this -- that has real effect. I mean, the real 7 effect is that we had a class rep who was involved in this 8 case and wanted nothing more to see completion of it -- Kevin 9 Turner. 10 He didn’t survive the appeal period, he passed away. The good news is this settlement is there for his family. 11 But he never got to see the end of this. 12 a personal note. 13 objectors trying to blow this settlement up. 14 That’s on That will always bother me about these But the second part that bothers me is there were 15 also financial opportunities for the class that they -- they 16 caused us. 17 was just recently approved. 18 One is we get a yearly inflation adjustment. One Because it was up on appeal for two years, we didn’t 19 get inflation adjustments for the time it was on appeal. 20 There are real consequences to playing the game that Mr. Lubel 21 wants to. 22 just wrong. 23 I won’t call Mr. Molo a professional objector, he’s Mr. Lubel is a professional objector. He -- he objected to fees in BP, he’s going to be 24 here throughout no matter what you award him. 25 -- he’s already attempted to appeal your April 5th order. JA9194 He’s going to Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 155 07/13/18 Date Page Filed: 122 08/09/2019 of 124 Colloquy 1 122 He filed a notice of intent to appeal, which I would 2 say, Your Honor, you should accommodate him because I don’t 3 know if that’s a final order, but if it’s not, I would ask you 4 to certify it as final and let’s take him up on appeal on that 5 one too. 6 Let’s not waste any more time with Mr. Lubel. Let’s 7 just get rid of him once and for all and let him go pick on 8 another case. 9 I -- the last point I’ll make is this “generally 10 consistent” provision is so ridiculous of his that I think if 11 you call the Special Masters you’ll get the real story on what 12 firms raised the “generally consistent” standard. 13 was nowhere near that issue. 14 THE COURT: Mr. Lubel Thank you, Your Honor. Okay, thank you. Let’s -- let me speak 15 with -- just with -- I’m just going to call and speak with Mr. 16 Seeger at sidebar, please. 17 MR. COOPER: I’m here. 18 THE COURT: Who’s that? 19 MR. COOPER: 20 THE CLERK: 21 I’m here. Hello? That could be either Mr. Dugan (phonetic) -- 22 THE COURT: Who’s that? 23 MR. COOPER: 24 THE CLERK: I don’t know why he’s on there, Judge. 25 THE COURT: Okay. This is Fenn Cooper (phonetic). JA9195 We’re on the record -- Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 156 07/13/18 Date Page Filed: 123 08/09/2019 of 124 Colloquy 123 1 THE CLERK: 2 MR. COOPER: Jack, I heard -- I heard you talking, 4 THE CLERK: You have the wrong number, Mr. Cooper. 5 THE COURT: All right, I will rule and I will take 3 Sidebar on the record, Judge? Jack. 6 those steps that have to be taken. 7 Yes, you are? 8 MR. BENZA: I’m Robert Benza (phonetic). 9 THE COURT: You’re not on the list. 10 MR. BENZA: I filed a notice of intent to argue. 11 I’m not sure if you’ll permit me to speak for just minutes, 12 Your Honor? 13 THE COURT: I got all -- 14 MR. BENZA: I’m class counsel for Kevin Turner, the 15 class rep -- excuse me, I’m not class counsel, I’m counsel for 16 the class representative, Kevin Turner. 17 18 19 20 21 THE COURT: law clerk. Well, one second. Turn off the record, Jim, please. (Off the record) THE COURT: I will rule. If I need anything else I’ll let you know, okay? 22 ALL COUNSEL: 23 THE COURT: 24 (Matter concluded, 12:50 p.m.) 25 Let me speak with my Thank you, Your Honor. Court is adjourned. * * * JA9196 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10134 Page: Filed 157 07/13/18 Date Page Filed: 124 08/09/2019 of 124 124 1 2 C E R T I F I C A T I O N 3 4 We, Josette Jones and Diane Gallagher, court 5 approved transcribers, certify that the foregoing is a correct 6 transcript from the official electronic sound recording of the 7 proceedings in the above-entitled matter. 8 9 10 JOSETTE JONES 11 12 13 DIANE GALLAGHER DATE 14 DIANA DOMAN TRANSCRIBING, LLC 15 16 17 18 19 20 JA9197 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10145 Page: Filed 15807/18/18 Date Filed: Page 08/09/2019 1 of 7 UNITED STATED DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS’ CONCUSSION INJURY LITIGATION Case No. 2:12-md-02323-AB MDL No. 2323 Hon. Anita B. Brody Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, Civ. Action No.: 14-cv-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 CO-LEAD CLASS COUNSEL CHRISTOPHER A. SEEGER’S STATUS REPORT WITH UPDATED ACTUARIAL ANALYSIS Co-Lead Class Counsel, recognizing that Year One of the implementation phase of the 65year Settlement Program had concluded, in accordance with his fiduciary duties to the Settlement Class Members, to keep them informed, and to update the Court in furtherance of its ongoing jurisdiction to oversee the Settlement’s implementation phase, determined that it would be appropriate to provide an updated actuarial analysis that reviews the progress of the Settlement Program thus far, and recalculates the projections through Year Sixty-Five of the Settlement Program, based upon the currently available data. As such, Co-Lead Class Counsel respectfully submits the attached Updated Analysis of the NFL Concussion Settlement, prepared by Thomas Vasquez, Ph.D. of Ankura Consulting Group. Administrator’s data through June 30, 2018. JA9198 This update is based upon the Claims Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10145 Page: Filed 15907/18/18 Date Filed: Page 08/09/2019 2 of 7 From time to time, Co-Lead Class Counsel expects to provide further updates as additional data become available. Dated: July 18, 2018 Respectfully submitted, /s/Christopher A. Seeger Christopher A. Seeger SEEGER WEISS LLP 55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660 Tel: (212) 584-0700 Fax: (212) 584-0799 cseeger@seegerweiss.com Co-Lead Class Counsel 2 JA9199 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10145 Page: Filed 16007/18/18 Date Filed: Page 08/09/2019 3 of 7 JA9200 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10145 Page: Filed 16107/18/18 Date Filed: Page 08/09/2019 4 of 7 JA9201 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10145 Page: Filed 16207/18/18 Date Filed: Page 08/09/2019 5 of 7 JA9202 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10145 Page: Filed 16307/18/18 Date Filed: Page 08/09/2019 6 of 7 JA9203 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10145 Page: Filed 16407/18/18 Date Filed: Page 08/09/2019 7 of 7 CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing document was served electronically via the Court’s electronic filing system upon all counsel of record in this matter. Dated: July 18, 2018 /s/Christopher A. Seeger Christopher A. Seeger JA9204 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165 Page: Filed 165 07/24/18 Date Page Filed: 108/09/2019 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN OF PENNSYLVANIA IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS’ CONCUSSION LITIGATION ___________________________________ THIS DOCUMENT RELATES TO: ALL ACTIONS § § § § § § § § No. 12-md-2323 (AB) MDL No. 2323 Alexander Objectors’ Opposition to Co-Lead Class Counsel’s First Verified Petition for an Award of Post-Effective Date Common Benefit Attorneys’ Fees and Costs I. Introduction The Alexander Objectors respectfully oppose Co-Lead Class Counsel’s First Post-Effective Date Fee Petition seeking $9,484,424.01 ($8,559,179.97 in fees and $926,244.04 in costs). According to this Court’s appointed expert, Professor William B. Rubenstein, the $112.5 million Fee Fund set aside by the NFL “should be sufficient to fund past, present, and future [attorney] work” on this settlement “so long as certain safeguards are put into place.” ECF 9571, p. 5. Exactly sixty days ago, the Court distributed $85,619,466.79 out of the $112.5 million. The Court explicitly held “the remaining funds in reserve to pay Class Counsel for their services in supporting the class through the implementation of the 65-year term of this Agreement.” ECF 10019, p. 1. Placing the remainder in an interest-bearing account, opined Professor JA9205 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165 Page: Filed 166 07/24/18 Date Page Filed: 208/09/2019 of 16 Rubenstein, will allow the Fee Fund to regenerate at $1,000,000 per year to the end of the 65-year life of the settlement. ECF 9571, p. 5. Co-Lead Class Counsel’s Post-Effective Date Fee Petition—clearly titled its “First”—reflects an intent to thwart the Court’s plan to grow the Fee Fund. As Professor Rubenstein predicted, safeguards are essential to avoid prematurely draining the Fee Fund. The Court has already put those safeguards in place: Case Management Order No. 5 Re: Submission of Plaintiffs’ Time and Expense Reports and Appointment of An Auditor (“CMO 5”). ECF 3710. The Court need only enforce them here: 1. CMO 5, entered by the Court at Co-Lead Class Counsel’s request, states its purpose to foster accountability and transparency; the present fee petition disregards those principles. 2. CMO 5 requires documentation of fees and expenses; the present fee petition supplies none. 3. CMO 5 forbids double billing; the present fee petition demonstrably bills for services already paid. 4. CMO 5 mandates common benefit fees for work that benefits the common good; the present fee petition seeks funds for work that does not benefit the Class Members as a whole. Only by safeguarding the remainder of the Fee Fund will the fund grow sufficiently to handle future fees. If the Fee Fund cannot regenerate according to Professor Rubenstein’s recommendation, future fees will be paid from a percentage of Class Member recoveries. Professor Rubenstein’s opinion is 2 JA9206 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165 Page: Filed 167 07/24/18 Date Page Filed: 308/09/2019 of 16 that a 5% holdback for these fees is not necessary. In fact, all Class Counsel agree the 5% holdback should not be necessary for future fees, except CoLead Class Counsel. Notably, Co-Lead Class Counsel seeks 88% of the $9.5 million sought here. Although the Court has awarded and allocated a generous bonus for work achieving and implementing, the Court should not continue to award fees without public substantiation. The Alexander Objectors ask the Court to deny the fee petition in its present form because Co-Lead Class Counsel fails to support its petition and seeks fees that are both double-billed and over-billed. In the alternative, the Alexander Objectors ask the Court to (a) direct the Court’s auditor, Alan B. Winikur CPA/ABV/CFF, to review the CMO 5 data to determine whether the fees sought are reasonable, nonduplicative, and otherwise meet the Court’s CMO 5 criteria; and (b) direct a fee committee to review the CMO 5 data and report (1) whether post-effective date fees should be capped in light of the nature of the work being performed and (2) what portion of the fees sought are attributable to the third-party funding issues and, therefore, properly taxed to those litigants alone, as suggested by Professor Rubenstein (See Professor Rubenstein Reply, ECF 9571 p. 5 n. 13); or (c) permit independent, limited fee-petition discovery. 3 JA9207 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165 Page: Filed 168 07/24/18 Date Page Filed: 408/09/2019 of 16 II. Argument A. Safeguarding the Fee Fund - Case Management Order No. 5 Professor Rubenstein recommends the Court put safeguards or controls in place to preserve the Fee Fund for the 65-year life of the Settlement. In other words, Class Counsel needs a budget. But, Class Counsel has steadfastly refused to forecast how much money is necessary to implement this Settlement Agreement. Class Counsel has no plan. Class Counsel has no incentive to exercise economic restraint. As an example, Co-Lead Class Counsel seeks in this Petition $1,366,518.78 for 2433.5 hours of paralegal work over approximately fourteen months. The day to day implementation services can be accomplished by qualified attorneys and paralegals with oversight by class counsel at substantially reduced rates. The Philadelphia Bar Association Community Legal Services suggested range of hourly attorney rates between $180 (under 2 years) -$650 (over 25 years) and paralegal rates of $115-$140 based on Philadelphia market survey. The paralegal billing rate used by fee petitioners exceeds the suggested range by more than $100 per hour. As long as Class Counsel is spending “other people’s” money, money held for them in escrow, Class Counsel is not likely to formulate a budget. As long as Class Counsel’s billing statements are not subject to Class Member scrutiny, Class Counsel is not likely to exercise business judgment about who performs what services and for how long. There is approximately $20 million remaining in that fund. The Court cannot safeguard the remainder of the Fee Fund by allowing Class Counsel to present serial fee petitions without some assurance that there is an implementation business plan going forward. Stated 4 JA9208 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165 Page: Filed 169 07/24/18 Date Page Filed: 508/09/2019 of 16 differently, each Class Member is facing a potential 5% tax or holdback to replenish the Fee Fund if it is exhausted. If the implementation services that Class Counsel is providing do not further each Class Member’s interest by at least 5%, then the trade does not benefit anyone but Class Counsel. Unchecked attorney services that drain the Fee Fund and deprive it of the potential to regenerate is the antithesis of the fiscal safeguards the Court contemplated in CMO 5, but has not yet utilized. In September, 2012, the Court placed all Class Counsel on notice of the compensable categories of fees and expenses. (ECF 3710, CMO 5). It was the purpose of the early request to establish such a protocol, according to CoLead Class Counsel; that is, to “ensure only reasonable and necessary fees and costs inuring to the benefit of all plaintiffs are incurred.” (ECF 3698, p. 3). The Court specifically articulated the purpose of such a protocol: “[T]o guide the payment of fees and expenses to attorneys performing common-benefit work” and “help ensure this matter is efficiently prosecuted for the benefit of former-player plaintiffs without unnecessary duplication or undue costs or fees.” (ECF 3710). Documentation was the touchstone for protecting Class Members from duplication and overbilling. Specifically, by CMO 5, the Court ordered Class Counsel to use the following form to document its time: 5 JA9209 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165 Page: Filed 170 07/24/18 Date Page Filed: 608/09/2019 of 16 The Court also specifically itemized those time categories that were noncompensable (EFC 3710, pp. 3-4). As relevant here, the Court ordered that the following were not compensable:       Time entries that are incomplete or provide insufficient detail; Time billed by multiple people in the same firm, unless justified by the work that has been assigned to the firm in relation to the particular task; Time that is duplicative or excessive in relation to the work assigned; Read and review time for persons not overseeing or directly participating in a project; Time related to litigation the claims of individual clients; Clerical time, including time spent preparing hearing or meeting notebooks, copying, filing, making travel arrangements or calendaring dates; On expenses, CMO 5 gave Class Counsel a list of compensable categories such as long-distance telephone or postage. But, the Court also ordered that certain expenses were non-compensable (p. 6-7). For example, as relevant 6 JA9210 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165 Page: Filed 171 07/24/18 Date Page Filed: 708/09/2019 of 16 to this fee petition, the Court said that the following expenses would not be reimbursed: duplicative expenses, undocumented expenses and expenses related to non-compensable time. This Court should not approve any requests for attorneys’ fees until provided with a satisfactory business plan detailing the common benefit work remaining and how the current funds from the $112.5 million in the qualified attorneys fee fund can be utilized to pay for such effort without tapping into class members awards. The Petition should be denied. B. The First Post-Effective Date Fee Petition should be denied because Co-Lead Class Counsel fails to support the petition with any documentation of the work alleged performed or the expenses alleged incurred. Federal Rule Civil Procedure 23(h) authorizes an award of “reasonable attorney fees.” Fed. R. Civ. P. 23(h). The Third Circuit achieves a reasonable attorney fee by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. See Washington v. Phila. City Ct. of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996). “In calculating the second part of the lodestar determination, the time reasonably expended,” a district court should “review the time charged, decide whether the hours set out were reasonably expended for each of the particular purposes described and then exclude those that are excessive, redundant, or otherwise unnecessary.” Pa. Envtl. Def. Found. v. Canon-McMillan Sch. Dist., 152 F.3d 228, 232 (3d Cir. 1998); see also Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (holding that to arrive at a reasonable number of hours worked, the court must excise those hours deemed excessive, redundant, or otherwise unnecessary). Co-Lead Class Counsel’s new fee petition renders it impossible to conduct that review. To support the $9.5 million Fee Petition, Co-Lead Class Counsel 7 JA9211 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165 Page: Filed 172 07/24/18 Date Page Filed: 808/09/2019 of 16 supplied a one-sentence verification and a one-page chart listing Firms seeking payment, with the “Professional Rank” of the individual, the hours alleged worked and the total amount sought including expenses. The chart does not disclose the billing rates. The chart does not disclose dates or a range of dates for the hours alleged worked. The chart does not disclose the identity of the individual alleged to have performed the service(s). None of the law firms or attorneys have submitted a single time record to support the 13,553.5 claimed hours of work. None of the law firms or attorneys have submitted a receipt, a cancelled check; or even a list of expenditures to support the $926,244.04 in expenses alleged incurred. The lack of documentation, alone, is sufficient for this Court to deny the subject fee petition. It is undisputed that this fee petition is to be analyzed as a pure lodestar. The Court has, by CMO 5, made the difficult decisions about not only what is compensable, but the process by which Class Counsel must transparently document adherence to compensable categories. Co-Lead Class Counsel supplies none of that documentation.1 But, even without CMO 5, the Third Circuit requires that Class Counsel prove their entitlement to fees; a demand for payment is insufficient. 2 CMO 5 tracks the Third Circuit Co-Lead Class Counsel cannot simply “stand ready” to tender supporting documents in camera to meet movants’ burden of proof. See ECF 10128 p. 18 n. 4; see also, for example, ECF 7606, p. 15. If Co-Lead Class Counsel needs to meet the movants’ proof with confidential documents, there is a presumption of access that must be overcome and “the burden is on the party who seeks to overcome the presumption of access to show that the interest in secrecy outweighs the presumption.’” LEAP Sys., Inc. v. MoneyTrax, Inc., 638 F.3d 216, 220-21 (3d Cir. 2011) (quoting In re Cendant Corp., 260 F.3d 183, 190 (3d Cir. 2001). Co-Lead Class Counsel has never articulated a reason that time sheets are confidential in a proceeding where the party seeks attorneys’ fees. 1 The Manual for Complex Litigation echoes the Third Circuit authority stating that “the party seeking fees has the burden of submitting sufficient information to justify the 2 8 JA9212 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165 Page: Filed 173 07/24/18 Date Page Filed: 908/09/2019 of 16 pronouncement a court should not compensate fees that are excessive, redundant or otherwise unnecessary. See Rose v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). And, CMO 5 accumulates the data upon which a Third Circuit lodestar analysis is founded (1) the number of hours reasonably expended on the litigation to multiply by (2) a reasonable hourly rate. See Washington v. Phila. City Ct. of Common Pleas, 89 F.3d at 1035. “[A] district court may not set attorneys’ fees based upon a generalized sense of what is customary or proper, but rather must rely upon the record.” Coleman v. Kaye, 87 F.3d 1491, 1510 (3d Cir. 1996). C. This First Post-Effective Date Fee Petition should be denied because Co-Lead Class Counsel seeks payment for work performed from January, 2017 to September, 2017 that has already been considered and paid by this Court – it is double billing. By this $9.5 million First Post-Effective Date Fee Petition, Co-Lead Class Counsel discloses that the “work undertaken” and at issue in the petition occurred “from January 7, 2017, the Effective Date of the Settlement, to May 24, 2018.” (ECF 10128, p. 1) However, this Court considered Class Counsel’s work undertaken from January 7, 2017 to September, 2017 in granting the prior fee petition. (ECF 10019, p. 15 stating “[additionally, Class Counsel has submitted 6,830 hours for implementation through September 2017). Any hours for “work undertaken” between January 7, 2017 and September, 2017 are hours double billed. The Court need not rely solely upon the statement in the Court’s order to know that these hours are double billed. In an October, 2017 supplemental filing, Co-Lead Class Counsel submitted a declaration stating: “After Final requested fees and taxable costs” and applicants must provide full documentation of hours and rates.” The Manual for Complex Litigation (Fourth) § 21.724 (2004). 9 JA9213 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165Page: Filed174 07/24/18 DatePage Filed:10 08/09/2019 of 16 Approval, my firm took a similar lead on the implementation of the Settlement which became effective on January 7, 2017. My firm submitted 21,044 hours for a lodestar of $18,124,869.10 and reported $1,498,690.99 in common benefit expenses.” (ECF 8447, p. 12). That same declaration described the “work undertaken” in eight categories: a. Work to Ensure Class Member-Friendly Registration and Claims Processes; b. Selection of Appeals Advisory Panel Members and Appeals Advisory Panel Consultants; c. Selection and Orientation of Hundreds of Individuals to Serve as Qualified BAP Providers and Qualified MAF Physicians and Maintenance of These Physician Networks; d. Oversight of the Claim Process and Monetary Award Determinations; e. Appeals of Claims Determinations; f. BAP Examinations; g. Fielding Calls from Class Members and Lawyers Representing Class Members; h. Efforts to Combat the Dissemination of Misinformation to Class Members and Other Forms of Exploitation of Class Members. (ECF 8447, pp. 15-190) The present fee petition seeks compensation for “work undertaken,” for the following categories only, as excerpted with track changes for comparison: a. Work to Ensure Class Member-Friendly Registration and Claims Processes; b. Selection of Appeals Advisory Panel Members and Appeals Advisory Panel Consultants; c. Selection and Orientation of Hundreds of Individuals to Serve as Qualified BAP Providers and Qualified MAF Physicians and Maintenance of These Physician Networks; d. Oversight of the Claim Process and Monetary Award Determinations; e. Appeals of Claims Determinations 3 ; f. BAP Examinations and Supplemental 3 According to the NFL Concussion Website, there are 98 appeals filed by one party or the other; however, Class Counsel has not filed anything in 80% of them. Note, too, that CoLead Class Counsel attributes his appellate efforts to “a properly inclusive interpretation of ‘generally consistent’ standard; this is one of the issues that movant’s counsel urged pre10 JA9214 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165Page: Filed175 07/24/18 DatePage Filed:11 08/09/2019 of 16 Benefits; g. Fielding Calls from Class Members and Lawyers Representing Class Members; h. Efforts to Protect Class Members from Third-Party Profiteers4. (ECFF 10128, pp. 3-12) The Court can see that these submissions—one seeking payment for hours through September, 2017 and the second, post $50 million distribution, seeking payment for fees January, 2017 to March, 2018, inclusive—are virtually identical. Even the original petition for fees contains similar descriptions of work undertaken as justification for pre-February, 2017 services. Co-Lead Class Counsel’s Declaration is replete with implementation services that are now also the subject of the new petition. See ECF 7151-2, p. 25. The Court should deny this First Post-Effective Date Fee Petition without prejudice to resubmission of nonduplicative, reasonable hours. D. This First Post-Effective Date Fee Petition should be denied because Co-Lead Class Counsel seeks payment upon unreasonable rates, as already determined by this Court. In its First Post-Effective Date Fee Petition, Co-Lead Class Counsel states that movant “utilizes the blended rate used in the May 24, 2018 Allocation Order.” Petition, p. 18 n. 5. It is true that as part of the Court’s Settlement clarification on to avoid post-Settlement interpretation. Co-Lead Class Counsel disregarded the pre-Settlement suggestion and Class Members are now asked to pay for it. This category is modified somewhat to highlight Co-Lead Class Counsel’s effort to spearhead challenges to third-party profiteers who “might confuse or unduly influence [susceptible] Class Members through third-party advances to Class Members against their anticipated Monetary Awards. Remarkably, the third-party advance on Class Members’ recoveries appears to have been conceived by Co Lead Class Counsel, himself. See Exhibit 2, Email from Co-Lead Class Counsel Christopher Seeger introducing Plaintiff’s counsel Mitnick to Ari Kornhaber of Esquire Bank for Plaintiffs’ financing needs.” 4 11 JA9215 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165Page: Filed176 07/24/18 DatePage Filed:12 08/09/2019 of 16 lodestar cross check in the Allocation Order the Court (a) found Class Counsel’s billing rates to be unreasonable and (b) found that “blending the rates of all partners, associates, and paralegals produces an average rate of $623.05 per hour.5 (ECF 10019 pp. 15-16). It is not true that Co-Lead Class Counsel has utilized that blended rate found to be fair in connection with the current fee petition. Firm Total Hours Anapol Weiss – 137.7 – Partners: 137.7 hours Brad Sohn6 Law Firm – 38.4 – Partners: 38.4 hours Levin Sedran and Berman -73.3 – Partners: 71 hours – “Counsel”: 2.3 hours Locks Law Firm - 670 – Partners: 670 hours NastLaw – 80.1 – Partners: 37.8 hours – Associate: 42.3 hours Podhurst Orseck – 287.6 – Partners: 187.8 hours – Associate: 9.1 hours Total Lodestar $104,424.80 Rate applied $758.35 $29,120.64 $758.35 $55,587.05 $758.35 $508,094.50 $758.35 $49,251.77 $614.88 $173,313.42 $602.62 5 Moreover, even if Co-Lead Class Counsel is purporting to re-calculate a blended rate based upon, Co-Lead Class Counsel completely departs from the Court’s methodology. Specifically, Co-Lead Class Counsel has calculated a “blended rate” by firm, not across the board as the Court did. The Court will recall that the reason for the blended rate was as part of the cross check computation was that “the billing rates submitted by these law firms varied greatly.” (ECF 10019, p. 15). As such, the Court averaged between all firms, not firm by firm. The Court should note two important points about Mr. Sohn’s $29,120.64 efforts. First, it is undisputed that the hours Mr. Sohn worked, he worked for an individual client; CoLead Class Counsel has made the unilateral decision to retroactively compensate Mr. Sohn from the common benefit fund. Second, Mr. Sohn, whose hours are being billed at $758.35 appears to be the same Mr. Sohn who served as a law clerk for Podhurst Orseck and, in connection with the first fee petition, was billed at the rate of $295, commensurate with the paralegal rate. (ECF 7151-8, Exhibit I) 6 12 JA9216 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165Page: Filed177 07/24/18 DatePage Filed:13 08/09/2019 of 16 – Paralegal: 90.7 hours Prof. Issacharoff – 36.3 – Partners: 36.3 hours Seeger Weiss – 13,552.5 – Partners: 6,438.1 hours – “Counsel”: 2,246.2 hours – Associates: 1,112.3 hours – Paralegals: 2,433.5 hours $27,528.10 758.35 $7,611,859.69 $561.66 The Court did not suggest that any blended rate would be used in a pure lodestar. And, it should not. The Court can see from the table above that many, many of the hours being expended during “implementation” efforts are services provided by paralegals. Using a blended rate raises the compensation for such paralegal services from, for example, $260.00 per hour to a rate higher than an associates’ rate. See Petition, p. 18 n. 5. As such, Seeger Weiss is being compensated for paralegal work in the amount of $1,366,518.78. CoLead Class Counsel cites no case in which any Court has used a “blended rate” for an actual lodestar award. The Court should deny this First Post-Effective Date Fee Petition without prejudice to resubmission with actual, but reasonable rates for work along the guidelines of CMO 5. E. In the alternative, the Court should refer the First Post-Effective Date Fee Petition to either Mr. Alan Winikur or a Fee Committee for review of CMO data and use of strategies to preserve the Fee Fund for the benefit of all Class Members. If the Court does not deny the petition, without prejudice, outright for its failure to provide support and its double and overbilling, the Court should nonetheless provide transparency in the review of Co-Lead Class Counsel’s new fee petition by applying CMO 5 to it via data and auditor. Where the Court has a process in place, such as CMO 5, and then fails to follow that 13 JA9217 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165Page: Filed178 07/24/18 DatePage Filed:14 08/09/2019 of 16 process, there is no transparency. See Exhibit 1, June 15, 2018 Declaration of Christopher A. Seeger, In re: Zimmer Durom Hip Cup Products Liability Litigation, MDL 2158, 2:90-cv-04414, ECF 986-2, p. 3 (averring that other lawyers failure to comply with Case Management Order No. 3, “pre-specified guidelines” was not normal or usual for a fee process and deprived the procedure of transparency). Instead, “it is normal for fee committees to be organized who analyze common benefit claims and ultimately reach consensus amongst all the lawyers who contributed to the process.” See Exhibit 1, June 15, 2018 Declaration of Christopher A. Seeger, In re: Zimmer Durom Hip Cup Products Liability Litigation, MDL 2158, 2:90-cv-04414, ECF 986-2, p. 3. It is, in fact, normal to afford transparency in the fee process. That is the reason the Court entered CMO 5. That is the reason the Court appointed an auditor. His services should be employed at this time. Further, as a part of the Court’s effort to conserve the Fee Fund for the next sixty-three years, the Court should consider taxing third-party funders whose arrangements are found to be improper with the fees incurred in challenging them. This is the suggestion of the Court’s expert, Professor Rubenstein. (ECF 9571 p. 6 n. 19). If the Court determines not to deny this First Post-Effective Date Fee Petition, the Court should refer the Fee Petition to either Mr. Alan Winikur or a Fee Committee for review of CMO data and use of strategies to preserve the Fee Fund for the benefit of all Class Members. Either independent review, with an eye toward conserving the fee fund and performing a critical analysis of reasonable fees and rates could afford the necessary transparency. 14 JA9218 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165Page: Filed179 07/24/18 DatePage Filed:15 08/09/2019 of 16 F. In the event the Court declines to deny or refer the First Post-Effective Date Fee Petition, the Court should permit limited fee-petition discovery. The above requests for review by Court-appointed experts or a Fee Committee would likely result in compensation from the Settlement. As an alternative, the Court should permit limited fee-petition discovery to be conducted by objectors7 – at the Alexander Objectors cost (no fee) only and save expenses that would otherwise fall to the Settlement or Class Members. The discovery might be in the form of written questions or an oral deposition. Section 21.724 of The Manual for Complex Litigation specifically contemplates such discovery where, as here, a petition for fees in not supported: If there is a request for discovery to support an objection to a motion for attorney fees, the court should consider “the completeness of the material submitted in support of the fee motion, which depends in part on the fee measurement standard.” The Manual for Complex Litigation (Fourth) § 21.724 (2004). The Alexander Objectors previously sought this discovery because CoLead Class Counsel provided no data or backup for fees sought. Co-Lead Class Counsel suggested that such data was not necessary for a “back of the envelope” lodestar cross check. Now, on this pure lodestar analysis, the data is necessary. Because Co-Lead Class Counsel has provided nothing for this Court to review in satisfaction of movants’ burden of proof, the Court should permit the Alexander Objectors to conduct limited fee discovery. 7 The Alexander Objectors incorporate, by reference their prior Motion for Leave to Conduct Fee-Petition Discovery (ECF 7534). 15 JA9219 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165Page: Filed180 07/24/18 DatePage Filed:16 08/09/2019 of 16 Prayer For the reasons stated above, Co-Lead Class Counsel’s First PostEffective Date Fee Petition should be denied. Dated: July 24, 2018 Respectfully submitted, Charles L. Becker, Esq. KLINE & SPECTER, PC 1525 Locust Street, 19th Floor Philadelphia, Pennsylvania 19102 Telephone: (215) 772-1000 Facsimile: (215) 772-1359 Email: Chip.Becker@KlineSpecter.com Mickey L. Washington, Esq. WASHINGTON & ASSOCIATES PLLC 2019 Wichita Street Houston, Texas 77004 Telephone: (713) 225-1838 Facsimile: (713) 225-1866 Email: mw@mickeywashington.com /s/ Lance H. Lubel Lance H. Lubel, Esq. Texas Bar No. 12651125 Adam Q. Voyles Texas Bar No. 24003121 LUBEL VOYLES LLP 675 Bering Dr., Suite 850 Houston, Texas 77057 Telephone: (713) 284-5200 Facsimile: (713) 284-5250 Email: lance@lubelvoyles.com Email: adam@lubelvoyles.com Attorneys for Appellants CERTIFICATE OF SERVICE I hereby certify that on July 24, 2018, I filed the foregoing through the Court’s CM/ECF system, which will provide electronic notice to all counsel of record and constitutes service on all counsel of record. /s/ Lance H. Lubel Lance H. Lubel 16 JA9220 Case Case: 2:09-cv-04414-SDW-SCM Case 18-2012 2:12-md-02323-AB Document:Document 003113316607 Document 986-2 10165-1 Filed Page: 06/15/18 Filed 18107/24/18 Date Page Filed: Page 1 of 08/09/2019 31PageID: of 3 15908 JA9221 Exhibit 1 Case Case: 2:09-cv-04414-SDW-SCM Case 18-2012 2:12-md-02323-AB Document:Document 003113316607 Document 986-2 10165-1 Filed Page: 06/15/18 Filed 18207/24/18 Date Page Filed: Page 2 of 08/09/2019 32PageID: of 3 15909 JA9222 Case Case: 2:09-cv-04414-SDW-SCM Case 18-2012 2:12-md-02323-AB Document:Document 003113316607 Document 986-2 10165-1 Filed Page: 06/15/18 Filed 18307/24/18 Date Page Filed: Page 3 of 08/09/2019 33PageID: of 3 15910 JA9223 Case: Case Case 18-2012 2:12-md-02323-AB 2:12-md-02323-AB Document: 003113316607 Document Document10165-2 9888Page: Filed Filed 184 04/17/18 07/24/18 DatePage Filed: Page 108/09/2019 of 1 of 165 JA9224 Exhibit 2 Case: Case Case 18-2012 2:12-md-02323-AB 2:12-md-02323-AB Document: 003113316607 Document Document10165-2 9888Page: Filed Filed 185 04/17/18 07/24/18 DatePage Filed: Page 208/09/2019 of 2 of 165 JA9225 Case: Case Case 18-2012 2:12-md-02323-AB 2:12-md-02323-AB Document: 003113316607 Document Document10165-2 9888Page: Filed Filed 186 04/17/18 07/24/18 DatePage Filed: Page 308/09/2019 of 3 of 165 JA9226 Case: Case Case 18-2012 2:12-md-02323-AB 2:12-md-02323-AB Document: 003113316607 Document Document10165-2 9888Page: Filed Filed 187 04/17/18 07/24/18 DatePage Filed: Page 408/09/2019 of 4 of 165 JA9227 Case: Case Case 18-2012 2:12-md-02323-AB 2:12-md-02323-AB Document: 003113316607 Document Document10165-2 9888Page: Filed Filed 188 04/17/18 07/24/18 DatePage Filed: Page 508/09/2019 of 5 of 165 JA9228 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10165-3 Page: Filed 18907/24/18 Date Filed: Page08/09/2019 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN OF PENNSYLVANIA IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS’ CONCUSSION LITIGATION ___________________________________ THIS DOCUMENT RELATES TO: ALL ACTIONS § § § § § § § § No. 12-md-2323 (AB) MDL No. 2323 [PROPOSED] ORDER ON THIS DAY came on for consideration the First Verified Petition of CoLead Class Counsel Christopher A. Seeger for an Award of Post-Effective Date Common Benefit Attorneys’ Fees and Costs (“Petition”). Upon consideration of the Petition and the response(s), the Court DENIES the Petition at this time. Dated: July __, 2018 ___________________________ Hon. Anita B. Brody United States District Court Judge 1 JA9229 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10188 Page: Filed 19008/02/18 Date Filed: Page 08/09/2019 1 of 3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS’ CONCUSSION INJURY LITIGATION __________________________________________ Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, Plaintiffs, v. No.:2:12-md-02323-AB MDL No. 2323 Civ. Action No. 14-00029-AB National Football League and NFL Properties LLC, successor-in-interest to NFL Properties, Inc., Defendants. __________________________________________ THIS DOCUMENT RELATES TO: ALL ACTIONS __________________________________________ NOTICE OF APPEAL NOTICE is hereby given that Class Counsel, the Locks Law Firm (LLF) hereby appeals to the United States Court of Appeals for the Third Circuit from the May 24, 2018 Explanation and Order (ECF No. 10019). Respectfully submitted, LOCKS LAW FIRM Dated: August 2, 2018 By: /s/ Gene Locks Gene Locks, Esquire (PA ID No. 12969) David D. Langfitt, Esquire (PA ID No. 66588) THE CURTIS CENTER 601 Walnut Street, Suite 720 East Philadelphia, PA 19106 Phone: (215) 893-0100 Fax: 215-893-3444 glocks@lockslaw.com dlangfitt@lockslaw.com JA9230 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10188 Page: Filed 19108/02/18 Date Filed: Page 08/09/2019 2 of 3 Tobias Barrington Wolff (PA ID No. 207270) Professor of Law, University of Pennsylvania Law School* 3501 Sansom Street Philadelphia, PA 19104 Phone: 215-898-7471 twolff@law.upenn.edu *For identification purposes only JA9231 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10188 Page: Filed 19208/02/18 Date Filed: Page 08/09/2019 3 of 3 CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of the foregoing Notice of Appeal was filed via the Electronic Case Filing System in the United States District Court for the Eastern District of Pennsylvania, on all parties registered for CM/ECF in the litigation. Respectfully Submitted, LOCKS LAW FIRM Dated: August 2, 2018 By: /s/ Gene Locks Gene Locks, Esquire (PA ID No. 12969) David D. Langfitt, Esquire (PA ID No. 66588) THE CURTIS CENTER 601 Walnut Street, Suite 720 East Philadelphia, PA 19106 Phone: (215) 893-0100 Fax: 215-893-3444 glocks@lockslaw.com dlangfitt@lockslaw.com Tobias Barrington Wolff Professor of Law, University of Pennsylvania Law School* 3501 Sansom Street Philadelphia, PA 19104 Phone: 215-898-7471 twolff@law.upenn.edu JA9232 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10261 Page: Filed 19309/18/18 Date Filed: Page 08/09/2019 1 of 9 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS’ CONCUSSION INJURY LITIGATION MDL No. 2323 Case No. 12-md-2323-AB Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, Civil Action No. 14-cv-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 ___________________________________ OBJECTION TO FIRST VERIFIED PETITION OF CO-LEAD COUNSEL CHRISTOPHER A. SEEGER FOR AN AWARD OF POST-EFFECTIVE DATE COMMON BENEFIT ATTORNEYS’ FEES AND COSTS On July 10, 2018, Christopher Seeger filed his First Verified Petition of Co-Lead Class Counsel Christopher A. Seeger for an Award of Post-Effective Date Common Benefit Attorneys’ Fees and Costs (“First Post-Effective Date Request”). Seeger’s request excludes Zimmerman Reed’s submitted common benefit time and expenses from JA9233 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10261 Page: Filed 19409/18/18 Date Filed: Page 08/09/2019 2 of 9 January 7, 2017 (“Effective Date”) to September 13, 2017. Zimmerman Reed wrote to Seeger requesting an explanation for his decision not to include Zimmerman Reed’s submitted time and expenses in his first post-Effective Date fee request. Seeger never responded to Zimmerman Reed’s request. Zimmerman Reed now objects to Seeger’s first request for post-Effective Date common benefit attorneys’ fees and costs and asks the Court to include Zimmerman Reed’s uncompensated post-Effective Date time. BACKGROUND On September 15, 2017, pursuant to Seeger Weiss’s request, Zimmerman Reed submitted its common benefit time and expense report totaling $128,209.50 for work performed from June 16, 2016 to September 13, 2017. Zimmerman Reed’s report included a significant amount of post-Effective Date time, totaling $65,990.161 in attorney’s fees. Zimmerman Reed performed its post-Effective Date work on behalf of the common benefit of the Class as the Co-Chair of the Ethics Committee, and its time includes efforts to prevent the spread of misinformation and remedy confusion amongst Class Members about the Settlement and its benefits. Zimmerman Reed took the initial lead on this effort, collecting information about bad actors who misrepresented the Settlement and exploited Class Members, and sending cease-and-desist letters to entities, legal or otherwise, who sent misleading mailers or made other misleading communications to Class Members. Zimmerman Reed pursued these measures on behalf of all Class Members, and specifically sought approval from Chris Seeger and Sol Weiss 1 This amount reflects the reasonable hourly rates determined by the Court in its fee Order. See Explanation and Order, at n.4, ECF 10019. 2 JA9234 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10261 Page: Filed 19509/18/18 Date Filed: Page 08/09/2019 3 of 9 before taking action. As Zimmerman Reed pointed out in its objection to Seeger’s Declaration in Support of Proposed Allocation of Common Benefit Fund Fees (“Proposed Pre-Effective Date Common Benefit Allocation”), Seeger sought compensation for himself for similar activities, specifically “combat[ing] the dissemination of misinformation to class members and other forms of exploitation of class members.” See Counter-Declaration of Charles S. Zimmerman In Response to Proposed Allocation of Common Benefit Attorney’s Fees (“Zimmerman CounterDeclaration”) at ¶ 33, ECF 8722. In the Zimmerman Counter Declaration, Zimmerman Reed requested the postEffective Date time it provided to Seeger in September 2017 be included in Seeger’s first post-Effective Date request for attorneys’ fees. Id. at ¶ 36. However, on July 10, 2018, Seeger submitted his First Post-Effective Date Request and did not include any of Zimmerman Reed’s post-Effective Date time. See First Post-Effective Date Request, ECF 10128. Seeger did not provide an explanation for excluding it. On July 19, 2018, Zimmerman Reed wrote to Seeger Weiss and requested that he amend his First Post-Effective Date Request to include Zimmerman Reed’s postEffective Date time, or explain his decision to exclude it. Seeger, to date, has not responded to Zimmerman Reed’s letter. On August 3, 2018, Seeger Weiss responded to a separate objection submitted by the Alexander Objectors, and maintained his position that the first post-Effective Date common benefit attorneys’ fees and expenses should be distributed as he originally requested. See Co-Lead Class Counsel’s Reply to the Alexander Objectors’ Objections 3 JA9235 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10261 Page: Filed 19609/18/18 Date Filed: Page 08/09/2019 4 of 9 to First Verified Petition for an Award of Post-Effective Date Common Benefit Attorneys’ Fees and Costs, ECF 10191. In his Response, Seeger argued that the Alexander Objectors were the only entity to take issue with his first post-Effective date proposal, despite Zimmerman Reed’s request to him that he include Zimmerman Reed’s time. Therefore, it being clear Seeger Weiss will not hear Zimmerman Reed’s request or request the Court to include Zimmerman Reed’s post-Effective Date lodestar, Zimmerman Reed objects to Seeger’s First Post-Effective Date Request and asks the Court include Zimmerman Reed’s time totaling $65,990.16. ARGUMENT Zimmerman Reed objects to Seeger Weiss’s decision not to request compensation for Zimmerman Reed’s post-Effective Date time. Zimmerman Reed requests the Court approve its requested fee, adjusted according to the Court’s reasonable hourly billing rates, of $65,990.16. Zimmerman Reed’s request should be granted for three reasons. First, Seeger Weiss previously proposed that Zimmerman Reed be compensated through the common benefit fund for its Ethics Committee efforts. In his Proposed PreEffective Date Common Benefit Allocation, Seeger recommended Zimmerman Reed receive the full amount of its lodestar submitted prior to June 16, 2016, which included time billed for work done on behalf of the Ethics Committee. See Proposed Pre-Effective Date Common Benefit Allocation, at ¶¶ 15(x), 17, ECF 8447. Seeger also specifically listed the type of work Zimmerman Reed undertook on the Ethics Committee as compensable through the common benefit, stating that efforts to “combat the 4 JA9236 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10261 Page: Filed 19709/18/18 Date Filed: Page 08/09/2019 5 of 9 dissemination of misinformation to class members and other forms of exploitation of class members” deserved compensation. Id. at ¶ 33. The Court later agreed, and compensated Zimmerman Reed for its Ethics Committee work performed before June 16, 2016. See Explanation and Order, ECF 10019. Seeger has not explained why Zimmerman Reed’s efforts on behalf of the Ethics Committee were previously compensable through the common benefit fund but were not compensable after the Effective Date. Because Zimmerman Reed was compensated for pre-Effective Date Ethics Committee work that is substantially similar to its postEffective Date Ethics Committee work, the Court should grant Zimmerman Reed’s request. Second, Zimmerman Reed’s post-Effective Date time and expenses were undertaken on behalf of the Class and for the common benefit, and therefore, are appropriate for compensation through the post-Effective Date common benefit fund. As Zimmerman Reed described in its Counter Declaration, its post-Effective Date time reflects efforts to combat the dissemination of misinformation to class members. Zimmerman Counter Declaration, at ¶¶ 33-36. Zimmerman Reed gathered information and communications from law firms on the Plaintiffs’ Steering Committee and the Plaintiffs’ Executive Committee, including information on 244 former NFL players who received potentially misleading letters, emails, phone calls, or other communications. In part, these communications included statements from certain firms purportedly promising players a diagnosis through the Settlement. In fact, many of the bad actors Zimmerman Reed identified were later involved in potentially fraudulent or suspicious claims or were 5 JA9237 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10261 Page: Filed 19809/18/18 Date Filed: Page 08/09/2019 6 of 9 otherwise accused of exploiting class members, including some with cognitive deficiencies. Zimmerman Reed led the effort to draft cease-and-desist letters to entities and law firms that misled players about the Settlement or Class Members’ representation status. The majority of the information Zimmerman Reed collected, reviewed, and analyzed did not involve or relate to any of its individually retained clients. As such, Zimmerman Reed’s efforts were not made for its own benefit, but rather, to protect the class as a whole. Zimmerman Reed’s efforts were not only authorized by Seeger Weiss, but Zimmerman Reed kept Seeger and Sol Weiss apprised of its progress and efforts, including sending the information it compiled and drafts of cease-and-desist letters. Seeger approved this type of work by authorizing the creation of the Ethics Committee and recognized the necessity of an effort to promote accurate information about the Settlement to Class Members. Zimmerman Reed vigorously pursued its duty as Co-Chair of the Ethics Committee even after the Effective Date. From January 7, 2017 to September 13, 2017, Zimmerman Reed spent significant time, almost 100 hours, correcting misleading information and gathering information on bad actors, as Seeger requested upon forming the Ethics Committee. Zimmerman Reed deserves compensation for those efforts. Third, and finally, Seeger Weiss’s First Post-Effective Date Request shows that Zimmerman Reed’s time is compensable as common benefit. In his First Post-Effective Date Request, Seeger proposes compensating his firm for time spent performing work similar to that which Zimmerman Reed seeks compensation here. Seeger Weiss lists 6 JA9238 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10261 Page: Filed 19909/18/18 Date Filed: Page 08/09/2019 7 of 9 activities it believes are compensable through common benefit fees, including “Efforts to Protect Class Member from Third-Party Profiteers.” See First Post-Effective Date Request, at 10. Seeger describes his work: As Co-Lead Class Counsel, Seeger Weiss was particularly concerned that profiteers might confuse or unduly influence Class Members, who might be more susceptible to deceptive tactics by reason of neurocognitive impairments, other ailments, age, financial distress, or some combination of all of these factors. Id. at 10-11. Seeger also requests compensation for “fielded calls from Class Member and their family members concerning the potentially misleading third-party solicitations and deceptive practices . . . .” Id. at 10. Seeger’s work related to third-party funders is substantially similar to the type of effort Zimmerman Reed undertook as Co-Chair of the Ethics Committee. In the case of third party funders, entities took advantage of Class Members by offering money upfront but later taking substantial amounts from the Class Members’ Monetary Awards. Likewise, the bad actors Zimmerman Reed sought to expose promised players Qualifying Diagnoses, misinformed Class Members about the Settlement, or actively sought to encourage Class Members to fire their attorneys, without cause. Seeger Weiss may not be concerned about Class Members unnecessarily firing their attorneys, and, undoubtedly, Class Members have the right to terminate their attorneys at any time. However, when Class Members are terminating attorneys because of false or exaggerated promises of other entities, Class Members are put in jeopardy and, just as with third party funders, this particular Class is vulnerable to exaggerated promises. 7 JA9239 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10261 Page: Filed 20009/18/18 Date Filed: Page 08/09/2019 8 of 9 Ultimately, Seeger seeks compensation for his work preventing misleading and exploitative actions of third party entities, and Zimmerman Reed was authorized by Seeger to do the same. Seeger has not explained why his actions deserve common benefit compensation, but Zimmerman Reed’s do not. Because both efforts were made on behalf of the Class, both are compensable. CONCLUSION Zimmerman Reed requests the Court include its post-Effective Date common benefit time, totaling $65,990.16, in the first post-Effective Date distribution of attorneys’ fees for Zimmerman Reed’s efforts as the Co-Chair of the Ethics Committee. Dated: September 18, 2018 Respectfully submitted, ZIMMERMAN REED LLP s/ Charles S. Zimmerman Charles S. Zimmerman – MN #120054 J. Gordon Rudd, Jr. – MN #222082 Brian C. Gudmundson – MN #336695 Michael J. Laird - MN #0398436 1100 IDS Center, 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 341-0400 Facsimile: (612) 341-0844 Email: Charles.Zimmerman@zimmreed.com Gordon.Rudd@zimmreed.com Brian.Gudmundson@zimmreed.com Michael.Laird@zimmreed.com ATTORNEYS FOR PLAINTIFFS 8 JA9240 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10261 Page: Filed 20109/18/18 Date Filed: Page 08/09/2019 9 of 9 CERTIFICATE OF SERVICE I hereby certify that a copy of Zimmerman Reed LLP’s Objection to First Verified Petition of Co-Lead Class Counsel Christopher A. Seeger for an Award of Post-Effective Date Common Benefit Attorneys’ Fees and Costs was filed electronically with the Clerk of Court using the CM/ECF System on September 18, 2018. The CM/ECF System will serve all counsel of record. Dated: September 18, 2018 ZIMMERMAN REED LLP s/ Charles S. Zimmerman Charles S. Zimmerman – MN #120054 J. Gordon Rudd, Jr. – MN #222082 Brian C. Gudmundson – MN #336695 Michael J. Laird - MN #0398436 1100 IDS Center, 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 341-0400 Facsimile: (612) 341-0844 Email: Charles.Zimmerman@zimmreed.com Gordon.Rudd@zimmreed.com Brian.Gudmundson@zimmreed.com Michael.Laird@zimmreed.com ATTORNEYS FOR PLAINTIFFS 9 JA9241 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10278 Page: Filed 20209/27/18 Date Filed: Page 08/09/2019 1 of 6 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 MDL No. 2323 Hon. Anita B. Brody Civ. Action No. 14-00029-AB Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, Plaintiffs, v. National Football League and NFL Properties LLC, successor-in-interest to NFL Properties, Inc., Defendants. THIS DOCUMENT RELATES TO: ALL ACTIONS DECLARATION OF CHRISTOPHER A. SEEGER IN RESPONSE TO THE OBJECTION OF ZIMMERMAN REED TO FIRST VERIFIED PETITION FOR AWARD OF POST-EFFECTIVE DATE COMMON BENEFIT ATTORNEYS’ FEES AND COSTS CHRISTOPHER A. SEEGER declares, pursuant to 28 U.S.C. § 1746, based upon his personal knowledge, information and belief, the following: 1. I submit this response to the Objection to First Verified Petition of Co-Lead Counsel Christopher A. Seeger for an Award of Post-Effective Date Common Benefit Attorneys’ Fees and Costs, filed by Zimmerman Reed LLP (ECF No. 10261) (“Zimmerman Objection”). JA9242 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10278 Page: Filed 20309/27/18 Date Filed: Page 08/09/2019 2 of 6 2. As an initial matter, the Zimmerman Objection is nearly two months late. The First Verified Petition of Co-Lead Counsel Christopher A. Seeger for an Award of PostEffective Date Common Benefit Attorneys’ Fees and Costs (ECF No. 10128) (“First Post-Effective Date Petition”) was filed on July 10, 2018. Under this Court’s Local Rules, any response to the First Post-Effective Date Petition was due on or before July 24, 2018. 3. Even if the Zimmerman Objection were timely, the work for which Zimmerman Reed seeks compensation is not common benefit work. In preparation for the Proposed Allocation of Common Benefit Attorneys’ Fees, Payment of Common Benefit Expenses, and Payment of Case Contribution Awards to Class Representatives, in September 2017, I requested from firms on both the Plaintiffs’ Executive Committee (“PEC”) and Plaintiffs’ Steering Committee (“PSC”) that they submit to me any time that they believed reflected common benefit work performed subsequent to the filing of the Petition for an Award of Attorneys’ Fees, Reimbursement of Costs and Expenses, Adoption of a Set-Aside of Five Percent of Each Monetary Award and Derivative Claimant Award, and Case Contribution Awards for Class Representatives (ECF No. 7151) (“Initial Fee Petition”), so that I could present to the Court the continuing common benefit work I was overseeing as part of the implementation of the Settlement. 4. Zimmerman Reed submitted time for work that it had performed subsequent to its submission of time in connection with the Initial Fee Petition that it believed was for the common benefit of the Class. After reviewing that time, however, I did not believe that Zimmerman Reed’s additional work was common benefit work and I did not 2 JA9243 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10278 Page: Filed 20409/27/18 Date Filed: Page 08/09/2019 3 of 6 include it with on-going common benefit time that I presented to the Court alongside the Proposed Allocation. See ECF No. 8447. ¶ 21. 5. To begin with, I had not requested that Zimmerman Reed undertake any further work for the common benefit after the Effective Date. 6. The work for which Zimmerman Reed now requests compensation as common benefit work is primarily related to the “poaching” of clients from one firm by another. 1 This kind of work has two interests potentially in play: those of the firm losing a client and those of the client who, for whatever reason, decides to seek new representation. Work to advance the interests of any firm losing clients is not being performed for the common benefit of the Class. Only work that serves the interest of the clients may be for the common benefit. If the client sought new representation because he was unhappy with the prior firm’s lack of responsiveness or other perceived inadequacy, the work to dissuade the client from switching representation would not be common benefit work. If, however, the client’s decision to retain a new firm was based upon misrepresentations (e.g., touting relationships with physicians to assure the client would be able to obtain a Qualifying Diagnosis, or representing that they could “teach” clients to appear as though they were impaired, even if they were not) by the new firm, that could be common benefit work if it focuses on the client and his or her circumstances. 1 Zimmerman Reed also submitted time that it had spent coordinating with other firms to respond to the briefing surrounding the contingent fee agreement between Kevin Turner and his former law firm. Zimmerman Reed no longer appears to be seeking payment for this work as being for the common benefit of the Class. 3 JA9244 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10278 Page: Filed 20509/27/18 Date Filed: Page 08/09/2019 4 of 6 7. Shortly after the Settlement Agreement was approved, there were widespread misrepresentations by some firms seeking to sign-up players, even those who already had counsel. By early 2017, Co-Lead Class Counsel began seeking this Court’s intervention to address the wide array of unfair and deceptive practices aimed at Settlement Class Members, including Retired NFL Football Players with neurocognitive impairments. E.g., ECF Nos. 7175, 7347, 7625, 7811. By July 2017, the Court was addressing such deceptive practices, including by holding a hearing and directing that a corrective notice be sent to all members of the Settlement Class. E.g., ECF Nos. 7814, 8037. 8. Zimmerman Reed was involved in the early efforts to investigate the “poaching” of clients, and it submitted time up to July 15, 2016 related to these early efforts as part of the Initial Fee Petition. I ultimately submitted such work as common benefit work with the Initial Fee Petition. This work was useful in identifying the firms that were engaging in widespread efforts to secure clients after the final approval of the Settlement and the type of misrepresentations some of these firms were making in the course of their solicitations. 9. The work that Zimmerman Reed continued to undertake on the matter of “poaching,” however, changed over time. After the Effective Date of the Settlement, it appeared to me that the work Zimmerman Reed was undertaking was no longer for the common benefit of the Class. Rather than seeking primarily to protect the interests of Settlement Class Members, the work Zimmerman Reed continued to dedicate to the problem of “poaching” became focused instead on the interests of the firms, like its own and other PEC and PSC members, who were losing clients to the “poachers.” Indeed, none of 4 JA9245 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10278 Page: Filed 20609/27/18 Date Filed: Page 08/09/2019 5 of 6 this work contributed to the efforts by Co-Lead Class Counsel to address deceptive solicitations to the Settlement Class. Instead, such work was primarily, if not exclusively, serving the interests of the firms who had lost clients. 10. Nothing in the Zimmerman Objection leads me to change my opinion about whether this work qualified as common benefit time and thus to reconsider my decision. 11. Accordingly, the Court should overrule the untimely Zimmerman Objection. 12. I declare under penalty of perjury that the foregoing is true and correct. Date: Executed on September 27, 2018 /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 CO-LEAD CLASS COUNSEL 5 JA9246 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10278 Page: Filed 20709/27/18 Date Filed: Page 08/09/2019 6 of 6 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: September 27, 2018 Respectfully submitted, /s/ Christopher A. Seeger Christopher A. Seeger JA9247 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283 Page: Filed 208 10/03/18 Date Page Filed: 108/09/2019 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE: NATIONAL FOOTBALL No. 2: 12-md-02323-AB LEAGUE PLAYERS' CONCUSSION MDL No. 2323 INJURY LITIGATION Hon. Anita B. Brody Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, Plaintiffs, v. National Football League and NFL Properties, LLC, Successor-in-interest to NFL Properties, Inc., Defendants. THIS DOCUMENT RELATES TO: ALL ACTIONS ORDER Pursuant to the Court's continuing jttrisdiction over this action as set out in the Court's Amended Final Order and Judgment (Doc. No. 6534, paragraph 17), it is hereby ORDERED that the attached Amended Rules Governing Attorneys' Liens are ADOPTED. ?~~/$"1]David R. Strawbridge, USMJ Date: ~~ Anita B. Brody, J. ~ JA9248 OL~ ~~ 7/0 t{S Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283 Page: Filed 209 10/03/18 Date Page Filed: 208/09/2019 of 24 JA9249 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283 Page: Filed 210 10/03/18 Date Page Filed: 308/09/2019 of 24 TABLE OF CONTENTS TITLE 1: GENERAL ................................................................................................................ 1 Rule Rule Rule Rule Rule Rule 1. 2. 3. 4. 5. 6. Purpose of These Rules .................................................................................... 1 Court Approval of These Rules ........................................................................ 1 Definitions Used in These Rules ...................................................................... 1 Referral to Magistrate Judge ............................................................................ 3 How Things are Submitted and Served Under These Rules ............................ 3 How to Count Time Periods and the Date Something is Submitted Under These Rules ...................................................................... 3 TITLE II: ASSERTION AND SUBMISSION OF ATTORNEYS' LIENS ....................... .4 Required Notice of Attorney's Lien Filed in the Court .................................. .4 Required Proof for an Attorney's Lien ........................................................... .4 Attorney's Lien by Attorney Currently Representing the Settlement Class Member ................................................................................................... 5 10. Notice of Lien to Settlement Class Member and Attorney Lienholder ......... 5 11. Notice of Duty to Resolve Lien Dispute to Settlement Class Member and Attorney Lienholder ............................................................... 5 12. Resolution ofDisputes Over Attorneys' Liens ................................................. 5 13. Resolution of Petition for Deviation in the Attorney's Lien Dispute Process ... 6 Rule 7. Rule 8. Rule 9. Rule Rule Rule Rule TITLE III: DISPUTE RESOLUTION PROCESS ................................................................ 6 Rule 14. Rule 15. Rule 16. Rule 17. Rule 18. Rule 19. Rule 20. Rule 21. Rule 22. Rule 23. Rule 24. Rule 25. Rule 26. Rule 27. Rule 28. Rule 29. Attempts to Reach an Agreement.. ................................................................... 6 Agreement to Consent Jurisdiction .................................................................. 6 Issues in Dispute ............................................................................................... 6 Statement of Dispute ........................................................................................ 6 Response Memorandum ................................................................................... 7 Schedule of Document Submissions ................................................................ 8 Dispute Record ................................................................................................. 9 Appointment of Counsel ........... :...................................................................... 9 Hearing ............................................................................................................. 9 Hearing Procedure ............................................................................................ 10 Withdrawal of Attorney's Lien Dispute .......................................................... .11 Magistrate Judge Report and Recommendation .............................................. .l2 Final Decision of the Court .............................................................................. 12 Change of Address ........................................................................................... 13 Exclusive Retained Jurisdiction ....................................................................... 13 Implementation of These Amended Rules ...................................................... .13 EXHIBITS Exhibit A: Notice, Consent, and Reference of an Attorney's Lien Dispute to a Magistrate Judge for a Final Decision Notice of Lien Exhibit B: Statement of Fees and Costs Exhibit C: Withdrawal of Attorney's Lien Dispute i. JA9250 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283 Page: Filed 211 10/03/18 Date Page Filed: 408/09/2019 of 24 TITLE 1: GENERAL Rule 1. Purpose of These Rules. These Rules govern the process for asserting Attorneys' Liens and resolving Disputes as to whether the Attorney Lienholder's fees and/or costs, if any, may be awarded from the affected Settlement Class Member's Award. The resolution ofthe Dispute will necessarily take into account and resolve the extent of any other attorney's fees and/or costs to be awarded from the Settlement Class Member's Award. Rule 2. Court Approval of These Rules. The Court has approved these Amended Rules pursuant to its continuing and exclusive jurisdiction under Article XXVII of the Settlement Agreement and Paragraph 17 of the Court's May 8, 2015 Amended Final Approval Order and Judgment (ECF No. 6534). The Court may amend these Rules at any time. Rule 3. Definitions Used in These Rules. All capitalized terms used in these Rules will have the meanings given to them in the Settlement Agreement. In addition: (a) "Attorney's Lien" means a Lien asserted for attorneys' /law firm's fees and/or costs for work in connection with representing a Settlement Class Member in the NFL concussion litigation and/or in the Settlement Program. The fees and/or costs sought by an Attorney Lienholder must not include tasks undertaken for the Settlement Class as a class, or for tasks that replicate such common benefit tasks, or for any other tasks performed for the common benefit of Settlement Class Members. The common benefit fees and/or costs are addressed through Article XXI of the Settlement Agreement and as addressed in the Court's April22, 2015 Opinion under the heading "Attorney's Fees" (ECF No. 6509). (b) "Attorney Lienholder" means the attorney/law firm that asserted an Attorney's Lien with the Settlement Program. (c) "Award" means a Monetary Award, Supplemental Monetary Award, or a Derivative Claimant Award. (d) "Claim Package" is defined in the Settlement Agreement in Section 8.2(a). (e) "Court" is defined in the Settlement Agreement in Section 2.l(x). (f) "Derivative Claim Package" is defined in the Settlement Agreement in Section 8.2(b). (g) "Dispute" means any disagreement between the Parties over an Attorney's Lien as to the reasonableness and amount of the fees and/or costs sought by the Attorney Lienholder(s) and any other matter relating to attorney's fees and costs the Court determines are necessary to ensure that the rights of the Parties are protected. (h) "Dispute Record" is the compilation of information provided by the Claims Administrator to the Magistrate Judge for his consideration when resolving a Dispute, as described in Rule 20. (i) "District Judge" means the Honorable Anita B. Brody, U.S.D.J., or any successor judge. 1 JA9251 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283 Page: Filed 212 10/03/18 Date Page Filed: 508/09/2019 of 24 G) "Hearing Schedule" establishes the date, time, and place of the hearing, as described in Rule 22. The Claims Administrator will serve the Hearing Schedule on the Parties. (k) "Magistrate Judge" means the Honorable David Strawbridge, U.S.M.J., appointed by the District Judge in the April4, 2017 Order to handle all Attorney's Lien Disputes (ECF No. 7446) or any other United States Magistrate Judge for the Eastern District of Pennsylvania appointed by subsequent order of the District Judge for this purpose. (1) "Notice of Duty to Resolve Lien Dispute" is a notice issued by the Claims Administrator to the Settlement Class Member who disputes or fails to consent to an Attorney's Lien and to the Attorney Lienholder, as described in Rule 11. (m)"Notice of Lien" is a notice issued by the Claims Administrator to the Settlement Class Member and the Attorney Lienholder providing notice of an Attorney's Lien assertion with copies ofthe required proof, as described in Rule 10. (n) "Notice of Lien Payment" is a Notice issued by the Claims Administrator to the Settlement Class Member after it has issued payment for an Attorney's Lien, as described in Rule 12. (o) "Party or Parties to the Dispute" means the current attorney on behalf of a represented Settlement Class Member or an unrepresented Settlement Class Member on his or her own behalf, and any Attorney Lienholder(s), hereinafter referred to as "Party" or "Parties." The Claims Administrator is not a Party to the Dispute. (p) "Presumptive Fee Cap" means the presumptive cap on attorney's fees imposed by the Court's April 5, 2018 Opinion and Order (ECF Nos. 9862 and 9863), which capped attorneys' fees at 22% plus reasonable costs, less the amount (not to exceed 5% of the total Award) that the Court determines must be paid into the Attorneys' Fees Qualified Settlement Fund pursuant to the Court's June 27, 2018 Order Regarding Withholdings for Common Benefit Fund (ECF No. 10104). (q) "Report and Recommendation" is the Magistrate Judge's recommendation to the District Judge for resolution of the Dispute, as described in Rule 25. (r) "Response Memorandum" is the information submitted to the Claims Administrator by each Party in response to the Statement(s) of Dispute from other Parties, as described in Rule 18. (s) "Schedule of Document Submissions" is the schedule issued by the Claims Administrator to the Parties setting the deadlines for the submission of the Parties' Statements of Dispute and Response Memoranda, as described in Rule 19. (t) "Settlement Class Member" ("SCM") means a Retired NFL Football Player, the Representative Claimant of a deceased or incompetent Retired NFL Football Player, or a Derivative Claimant. 2 JA9252 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283 Page: Filed 213 10/03/18 Date Page Filed: 608/09/2019 of 24 (u) "Settlement Program" means the program for benefits for SCMs established under the Settlement Agreement. (v) "Statement of Dispute" is the information about the Dispute submitted by the Parties to the Claims Administrator, as described in Rule 17. (w)"Statement of Fees and Costs" is the form that an SCM's attorney must sign and return to the Claims Administrator pursuant to the Court's June 27, 2018 Order (ECF No. 10103) and Rule 17(b) verifying his or her law firm's fees and/or costs for work in connection with representing the SCM in the NFL concussion litigation and/or in the Settlement Program. (x) "Withdrawal of Attorney's Lien Dispute" ("Withdrawal") is a form that must be submitted by all Parties to the Dispute to withdraw from the dispute process, as described in Rule 24. (y) "Withdrawal Record" is the compilation of information provided by the Claims Administrator to the Magistrate Judge for his consideration when resolving a Dispute, as described in Rule 24(b). Rule 4. Referral to Magistrate Judge. The District Judge has referred all Attorney's Lien Disputes to the Honorable David Strawbridge, U.S.M.J., pursuant to the Court's April4, 2017 Order (ECF No. 7446) and as authorized under 28 U.S.C. § 636(b)(3). The Court will issue a final decision in accordance with these Rules. Rule 5. How Things are Submitted and Served Under These Rules. Where these Rules require service to the Claims Administrator, such service shall be by one of the following methods: (a) Email to ClaimsAdministrator@NFLConcussionSettlement.com, by a secured and encrypted method and include "ATTN: NFL Liens" in the subject line; (b) Facsimile to (804) 521-7299, ATTN: NFL Liens; (c) Mail to NFL Concussion Settlement, Claims Administrator, P.O. Box 25369, Richmond, VA 23260, ATTN: NFL Liens; or (d) Delivery by overnight carrier to NFL Concussion Settlement, c/o BrownGreer PLC, 250 Rocketts Way, Richmond, VA 23231, ATTN: NFL Liens. Rule 6. These Rules. How to Count Time Periods and the Date Something is Submitted Under (a) How to Count Time Periods: Any time period set by these Rules will be computed as follows, which is based on Rule 6 of the Federal Rules of Civil Procedure: ( 1) Do not count the day that starts the running of any period of time. The first day of the period is the day after this trigger day. (2) Count every day, including Saturdays, Sundays, and legal holidays. 3 JA9253 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283 Page: Filed 214 10/03/18 Date Page Filed: 708/09/2019 of 24 (3) Count the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. (4) Legal holidays are New Year's Day, Martin Luther King, Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day, and any other day declared a holiday by the President of the United States or the United States Congress. (5) An additional three days will be added to any time period specified by these Rules for an action or submission where the acting or responding party was served by mail with the Notice or submission requiring action or response rather than by service on a Portal or delivery. (b) How to Mark the Date Something is Submitted: Any document submitted by email or facsimile will be considered submitted on the date emailed or faxed at the local time of the submitting Party. Documents submitted by mail will be considered submitted on the postmark date. Documents submitted by overnight delivery will be considered submitted on the date delivered to the carrier. TITLE II: ASSERTION AND SUBMISSION OF ATTORNEYS' LIENS Rule 7. Required Notice of Attorney's Lien Filed in the Court. If an attorney wants to assert an Attorney's Lien, or otherwise present a claim against an SCM in any way related to a SCM's Award, he or she must file a notice, but notice only, of Attorney's Lien in the United States District Court for the Eastern District ofPennsylvania, Case No.: 2:12-md-02323-AB. An Attorney's Lien filed with any other court is not binding on the Claims Administrator or effective in the Settlement Program and will not be considered by the Court. Personal information such as Social Security Number, Taxpayer Identification Number, or Foreign Identification Number MUST NOT be included in the notice of lien filed with the Court, pursuant to the Local Rules of Civil Procedure for the Eastern District of Pennsylvania, Rule 5.1.3. Rule 8. Required Proof for an Attorney's Lien. (a) Proof of Attorney's Lien. The Attorney Lienholder must submit the following information and documentation to the Claims Administrator: (1) Information to identify the Retired NFL Football Player or Derivative Claimant against whom the Attorney's Lien is alleged (such as the SCM's full name, Social Security Number, Taxpayer Identification Number, Foreign Identification Number, Date of Birth, and/or Settlement Program ID); (2) The amount of the asserted Attorney's Lien; (3) The notice of Attorney's Lien filed in the United States District Court for the Eastern District of Pennsylvania, Case No.: 2:12-md-02323-AB as required by Rule 7; 4 JA9254 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283 Page: Filed 215 10/03/18 Date Page Filed: 808/09/2019 of 24 (4) A copy of the attorney's retainer agreement signed by the SCM; and (5) The dollar amount of the attorney's costs ifthe attorney is seeking reimbursement of costs in addition to fees. (b) An Attorney Lienholder must submit all of the required proof as set forth in Rule 8(a), before the Claims Administrator begins processing the Award. Failure to comply with Rule 8(a)(l)-(4) before the Claims Administrator begins processing the Award will result in the waiver of the Attorney Lienholder's right to assert an Attorney's Lien against the Award. Failure to comply with Rule 8(a)(5) before the Claims Administrator begins processing the Award will result in the waiver of the Attorney Lienholder's right to seek reimbursement of any costs incurred during representation of the SCM. (c) The Claims Administrator will review the information and send the Attorney Lienholder an email or letter to acknowledge receipt of the assertion, confirm the Attorney Lienholder's contact information, and inform the Attorney Lienholder if it needs to submit further information or documentation about the Lien. Rule 9. Attorney's Lien by an Attorney Currently Representing the Settlement Class Member. An SCM's current attorney who believes that other competing Lien payments, including but not limited to those for medical expenses and services, child support, unpaid taxes, and judgment debts, may interfere with recovery of his or her attorney's fees and/or costs must assert a Lien in accordance with Rules 5, 7, and 8 to protect his or her interests. Rule 10. Notice of Lien to Settlement Class Member and Attorney Lienholder. The Claims Administrator will issue a Notice of Lien to the SCM and the Attorney Lienholder after the Claims Administrator receives both the required proof for the Lien (as set forth in Rule 8) and a Claim Package or Derivative Claim Package. The SCM's Notice of Lien will include copies ofthe proof of the Attorney's Lien and provide the SCM with at least 20 days to consent to or dispute the Attorney's Lien. Rule 11. Notice of Duty to Resolve Lien Dispute to Settlement Class Member and Attorney Lienholder. If the SCM disputes or fails to consent to the Attorney's Lien within 20 days after the Claims Administrator issues a Notice of Lien, the Claims Administrator will take no further action on the Lien until the SCM becomes eligible for an Award. If and when the SCM becomes eligible for an Award, the Claims Administrator will issue a Notice of Duty to Resolve Lien Dispute to the SCM and the Attorney Lienholder. The Notice advises that the Claims Administrator is not a Party to the Dispute and does not have a decision-making role in how the Dispute will be resolved. The Claims Administrator will withhold adequate funds to pay the Lien, as well as the fees and/or costs of any current attorney, in accordance with the Presumptive Fee Cap, to the extent funds are available, until the Dispute is resolved. Rule 12. Resolution of Disputes Over Attorneys' Liens. The Claims Administrator will refer the Dispute to the Honorable David Strawbridge, U.S.M.J., or another United States Magistrate Judge for the Eastern District of Pennsylvania. If consent to Magistrate Judge jurisdiction is given pursuant to Rule 15, the Magistrate Judge will issue a final decision resolving the Dispute or ruling on Withdrawals of Attorney's Lien Dispute in accordance with these Rules and as authorized by 28 U.S.C. § 636(c). Otherwise, the Magistrate Judge will prepare a Report and Recommendation in 5 JA9255 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283 Page: Filed 216 10/03/18 Date Page Filed: 908/09/2019 of 24 accordance with these Rules and pursuant to the Court's April4, 2017 Order (ECF No. 7446) and as authorized by 28 U.S.C. § 636(b)(3). The Claims Administrator will disburse the withheld funds in accordance with the Court's final decision, the provisions of the Settlement Agreement, and Court orders regarding implementation. The Claims Administrator will issue a Notice of Lien Payment to the SCM. Rule 13. Resolution of Petition for Deviation in the Attorney's Lien Dispute Process. If a Party to an Attorney's Lien Dispute timely filed a Petition for Deviation in accordance with Rule 10 of the Rules Governing Petitions for Deviation from the Fee Cap (ECF No. 9956 or any Amended Rules Governing Petitions for Deviation from the Fee Cap as approved by the Court), the Petition will be resolved in the Attorney's Lien dispute resolution process. The timing of and requirements for document submissions are governed by the Schedule of Document Submissions issued by the Claims Administrator for the Attorney's Lien Dispute. The Claims Administrator will include the Petition for Deviation in the Record for the Attorney's Lien Dispute to be considered by the Magistrate Judge. TITLE III: DISPUTE RESOLUTION PROCESS Rule 14. Attempts to Reach an Agreement. The Parties must make reasonable efforts to resolve the Dispute by agreement before and during the dispute resolution process. Rule 15. Agreement to Consent Jurisdiction. Pursuant to 28 U.S.C. § 636(c), the Parties may consent to have the Magistrate Judge enter a final order as to the resolution of a Dispute by signing and returning to the Claims Administrator the Notice, Consent, and Reference of an Attorney's Lien Dispute to a Magistrate Judge for a Final Decision (Exhibit A). If such consent is given by all Parties, Rule 25 will no longer apply, and the Magistrate Judge's determination will become the final decision of the Court as described in Rule 26. Rule 16. Issues in Dispute. The issues in dispute will be limited to those originally raised by the Parties in the Statements of Dispute, as described in Rule 17, absent some extraordinary circumstance. Rule 17. Statement of Dispute. (a) Each Attorney Lienholder and the current attorney, if the SCM is represented, must serve the Claims Administrator with a Statement of Dispute including: (1) A statement of all issues in dispute; (2) A chronology of the tasks performed by the attorney, the date each task was performed, and the time spent on each task; (3) A list of costs with a brief explanation of the purpose of incurring these costs and the date the costs were incurred; (4) The relief sought; (5) A summary of the attempts to reach an agreement with the opposing Party; 6 JA9256 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed217 10/03/18 DatePage Filed:10 08/09/2019 of 24 (6) Any exhibits; and (7) A statement signed by the submitting Party declaring under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information submitted in the Statement of Dispute is true and accurate to the best of that Party's knowledge and that the submitting Party understands that false statements made in connection with this process may result in fines, sanctions, and/or any other remedy available by law. The statement may be signed by a current attorney on behalf of the SCM. The signature may be an original wet ink signature, a PDF or other electronic image of an actual signature, or an electronic signature. (b) The current attorney must also include with the Statement of Dispute a copy ofhis or her retainer agreement signed by the SCM, any modifications to that agreement, and a signed copy of the Statement of Fees and Costs (Exhibit B). Failure of an SCM's current attorney to provide the dollar amount of its costs on the Statement will result in waiver of the attorney's right to seek reimbursement of any costs incurred during representation of the SCM in the NFL concussion litigation or the Settlement Program. (c) If the SCM is not represented by a lawyer in this process, he or she must serve the Claims Administrator with a Statement of Dispute that: (1) Explains his or her best understanding of the issues; ' (2) Provides a summary of the attempts to reach an agreement with the Attorney Lienholder; (3) Includes any information the SCM believes would be useful to the Magistrate Judge about the work performed, any suggested resolution, and any documents or exhibits he or she wants the Magistrate Judge to consider; and (4) Includes a statement signed by the SCM declaring under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information submitted in the Statement ofDispute is true and accurate to the best of the SCM's knowledge and that the SCM understands that false statements made in connection with this process may result in fines, sanctions, and/or any other remedy available by law. The signature may be an original wet ink signature, a PDF or other electronic image of an actual signature, or an electronic signature. Rule 18. Response Memorandum. Each Party may serve the Claims Administrator with a Response Memorandum to the opposing Party's Statement of Dispute. Any request for a hearing must be made in the Response Memorandum. After a Response Memorandum has been submitted, a Party may not provide any further submissions unless requested by or approved by the Magistrate Judge. Any Party's request to include supplemental submissions in the Dispute Record must be made in writing to the Claims Administrator. Each Response Memorandum must contain a statement signed by the submitting Party declaring under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information submitted in the Response Memorandum is true and accurate to the best of that Party's knowledge and that the submitting Party 7 JA9257 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed218 10/03/18 DatePage Filed:11 08/09/2019 of 24 understands that false statements made in connection with this process may result in fines, sanctions, and/or any other remedy available by law. The statement may be signed by a current attorney on behalf of the SCM. The signature may be an original wet ink signature, a PDF or other electronic image of an actual signature, or an electronic signature. If a Party fails to submit a Statement of Dispute, the opposing Party may not submit a Response Memorandum unless requested by the Magistrate Judge. However, the opposing Party may submit a request for a hearing within 15 days after the date the Claims Administrator serves that Party's Statement of Dispute. Rule 19. Schedule of Document Submissions. The Claims Administrator will serve the Parties with a Schedule of Document Submissions as determined by the Magistrate Judge. (a) Statement of Dispute: Each Party must submit a Statement of Dispute within 30 days after the date of the Schedule of Document Submissions. The Claims Administrator will serve each Party with the opposing Party's Statement of Dispute. (b) Response Memorandum: Each Party may submit a Response Memorandum within 15 days after the date the Claims Administrator serves the Statements of Dispute on the Parties. The Claims Administrator will serve each Party with the opposing Party's Response Memorandum. (c) Additional Evidence or Information: The Magistrate Judge in his own discretion may request additional evidence or information from a Party or the Claims Administrator if he determines such evidence would aid him in the resolution of the Dispute. (d) The Dispute Record: Within 20 days after the date the Claims Administrator serves the Response Memoranda on the Parties, the Claims Administrator will provide the complete Dispute Record to the Magistrate Judge, along with a statement of the amount of any Award funds withheld pending resolution ofthe Dispute. (e) Exclusions from the Dispute Record: Any documents received after the Claims Administrator provides the Dispute Record to the Magistrate Judge will be excluded from the Dispute Record, unless directed otherwise by the Magistrate Judge. (f) Extensions of Time: Extensions of deadlines are discouraged and should not be filed on the Court's docket. Upon a Party's written request to the Claims Administrator and a showing of good cause, however, the Magistrate Judge may exercise discretion to extend or modify any submission deadline established by these Rules. Before the Claims Administrator presents any such request to the Magistrate Judge, the Parties must confer and include a statement of any opposition to the request in the written submission. The Magistrate Judge will advise the Claims Administrator of any extension or modification of a submission deadline. The Claims Administrator will notify the Parties. 8 JA9258 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed219 10/03/18 DatePage Filed:12 08/09/2019 of 24 Rule 20. Dispute Record. (a) The Dispute Record to be considered by the Magistrate Judge will consist of: (1) A copy of the Notice of Monetary Award Claim Determination or Notice of Derivative Claimant Award Determination; (2) The Notice of Lien to the SCM with the attachments (a copy of the Attorney Lienholder's retainer agreement signed by the SCM, a copy of the notice of Attorney's Lien filed in the Court, and the amount of any costs provided by the Attorney Lienholder); (3) The SCM's response, if any, to the Notice of Lien that he or she disputes the Lien; (4) If the SCM is represented, a copy ofthe current attorney's retainer agreement signed by the SCM and a signed copy ofthe Statement of Fees and Costs as provided in Rule 17(b); (5) The Statements of Dispute from each Party as provided in Rule 17; (6) The Response Memoranda from each Party as provided in Rule 18; and (7) Any additional evidence produced by either Party or the Claims Administrator in response to a request of the Magistrate Judge pursuant to Rule 19(c). (b) The Claims Administrator will assemble the complete Dispute Record and provide it to the Magistrate Judge, along with a statement ofthe amount of the Award withheld pending resolution ofthe Dispute. Rule 21. Appointment of Counsel. The Magistrate Judge has the discretion to appoint counsel for any unrepresented SCM pursuant to the Court's January 8, 2018 Order (ECF No. 9561). An unrepresented SCM must serve the Claims Administrator with a written request showing good cause for appointment of counsel. The Claims Administrator will present the request to the Magistrate Judge and inform the SCM of the determination. Rule 22. Hearing. (a) Hearing Request: Any Party may request a hearing with the Magistrate Judge in accordance with Rule 18. The Magistrate Judge in his own discretion may order a hearing, if he determines that such proceeding would aid him in the resolution of the Dispute. The Magistrate Judge will determine if such hearing will be in-person, by video conference, or by telephone. (b) Hearing Schedule: If the Magistrate Judge determines a hearing is necessary, the Claims Administrator will serve a Hearing Schedule on the Parties. The hearing will be scheduled promptly, but no sooner than 20 days after the date of the Hearing Schedule. No provision ofthe Schedule will be modified except upon written request for modification within 14 days ofthe date of the Schedule. Thereafter, the Schedule may be modified only upon a 9 JA9259 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed220 10/03/18 DatePage Filed:13 08/09/2019 of 24 showing of good cause that the deadline cannot reasonably be met despite the diligence of the Party seeking modification. Any requests for modification must be submitted to the Claims Administrator and should not be filed on the Court's docket. The Claims Administrator will submit the request to the Magistrate Judge and notify the Parties of the determination. (c) Telephonic or Video Conference Access for Hearing: The Claims Administrator will make the necessary arrangements for telephone or video conference access if the Magistrate Judge orders a hearing. (d) Accommodations: If a Party needs special accommodations for this process, that Party must make the necessary arrangements for those accommodations. Rule 23. Hearing Procedure. If the Magistrate Judge orders a hearing, the following procedure will apply. (a) Evidence: The evidence that the Magistrate Judge may consider is limited to the Dispute Record, testimony, and any additional documentation properly presented during the hearing. (b) Testimony Under Oath or Affirmation: Hearing testimony must be submitted under oath or affirmation administered by the Magistrate Judge or by any duly qualified person. If a Party wants to present live testimony of anyone other than a Party, he or she must submit a written request to the Claims Administrator no later than three (3) business days before the hearing that includes: (1) The individual's name and relationship to the requesting Party; (2) The nature and scope of the testimony to be provided; (3) The length of time the testimony will take; and (4) Whether the essence of the testimony could be presented in any other manner. The Claims Administrator will present the request to the Magistrate Judge and inform the Parties of the determination. All information presented at the hearing is provided in accordance with the certifications submitted with the Statement of Dispute and/or the Response Memorandum. (c) Audio Recording of Hearing: The hearing proceedings will be audio-recorded. The recording will be available through the Clerk's Office at the United States District Court for the Eastern District of Pennsylvania. Pursuant to 28 U.S.C § 753(b), the Parties may listen to the recording at the Clerk's Office during normal business hours without charge. The Parties may also order a transcript of the proceedings at their own expense. (d) Participation: All Parties and their counsel, if any, must participate in the hearing. Failure to participate without prior approval from the Magistrate Judge will result in the 10 JA9260 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed221 10/03/18 DatePage Filed:14 08/09/2019 of 24 Magistrate Judge issuing a decision based on the Dispute Record at the time of the hearing, together with any other evidence presented at the hearing. (e) Advocates: The Parties may, but are not required to, be represented by a lawyer. An SCM who does not have a lawyer for the hearing may, with the Magistrate Judge's permission, be represented by a non-attorney advocate. Rule 24. Withdrawal of Attorney's Lien Dispute. If the Parties reach an agreement at any time before the Magistrate Judge issues a Report and Recommendation or a final decision, and each Party serves a signed Withdrawal of Attorney's Lien Dispute ("Withdrawal") (Exhibit C) on the Claims Administrator, the dispute process will be stayed, and the Claims Administrator will submit the Withdrawal Record to the Magistrate Judge. (a) Requirements for the Submission of a Withdrawal. The Parties must submit the Withdrawal to the Claims Administrator. The Withdrawal must include: (1) A statement of the allocation ofthe attorneys' fees between the Parties that is consistent with the Presumptive Fee Cap (unless a Petition for Deviation upward is timely filed); (2) A statement of costs from the current attorney for the SCM, if represented, with an itemized list of those costs including a brief explanation of the purpose of incurring the costs; (3) A statement ofthe Attorney Lienholder's costs, if costs were asserted as part of the Lien, with an itemized list of those costs including a brief explanation of the purpose of incurring the costs; (4) If the SCM is represented in the Program, a statement of how each Party will allocate responsibility for the 5% deduction for common benefit fees, and a statement allocating any potential future refund of common benefit fees between the Parties; and (5) The signature of the Party submitting the Withdrawal. The Withdrawal may be signed by a current attorney on behalf of the SCM. The signature may be an original wet ink signature, a PDF or other electronic image of an actual signature, or an electronic signature. (b) Upon receipt of documentation that complies with Rule 24(a), the Claims Administrator will submit the Withdrawal Record to the Magistrate Judge. The Withdrawal Record will include: (1) A copy of the Notice of Monetary Award Claim Determination or Notice of Derivative Claimant Award Determination; (2) The Notice of Lien to the SCM with the attachments (a copy of the Attorney Lienholder's retainer agreement signed by the SCM, a copy of the notice of Attorney's Lien filed in the Court, and the amount of any costs provided by the Attorney Lienholder); 11 JA9261 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed222 10/03/18 DatePage Filed:15 08/09/2019 of 24 (3) The SCM's response, if any, to the Notice of Lien that he or she disputes the Lien; (4) Ifthe SCM is represented, a copy of the current attorney's retainer agreement signed by the SCM and a signed copy ofthe Statement of Fees and Costs as provided in Rule 17(b); and (5) The signed Withdrawals of Attorney's Lien Dispute. (c) Upon receipt of the Withdrawal Record, the Magistrate Judge will enter a Report and Recommendation or a final decision consistent with Rule 12. The District Judge will enter a final decision if required by Rule 26. The Claims Administrator will pay the withheld portion of the Award to the SCM or to the current attorney (if the SCM is represented) and any Attorney Lienholder(s) in accordance with the final decision, and according to the provisions of the Settlement Agreement and all relevant Court orders. Rule 25. Magistrate Judge Report and Recommendation. (a) Issuance: The Magistrate Judge will issue a Report and Recommendation after consideration of the Dispute Record or the Withdrawal Record, and any evidence properly submitted during a hearing, if any. (b) Content: The Report and Recommendation will be in writing and will set forth a recommended disposition of the Dispute. (c) Service: The Claims Administrator will serve the Report and Recommendation on the Parties. (d) Objections to Report and Recommendation: In accordance with Fed. R. Civ. P. 72(b)(2), the Parties will have 14 days from the date the Claims Administrator serves the Report and Recommendation to file specific written objections with the District Judge. The Claims Administrator will serve copies of the written objections on the Parties. The Parties will have 14 days from the date the Claims Administrator serves any objections to file a written response to the opposing Party's objections. The Claims Administrator will serve copies of any responses to the objections on the Parties. Rule 26. Final Decision of the Court. Except where Rule 15 may apply, the District Judge will, in accordance with Fed. R. Civ. P. 72(b)(3), enter a final decision after consideration ofthe Report and Recommendation from the Magistrate Judge and any objections from the Parties. Where Rule 15 does apply, the Magistrate Judge will issue the final decision ofthe Court. Upon issuance of the final decision by the Court, the Dispute Record or the Withdrawal Record will be transferred to the Claims Administrator. The Claims Administrator will serve copies of the final decision on the Parties. Any Party may appeal the final decision. Within seven (7) days after the date of the final decision, the Court may exercise discretion to modify or correct the final decision if there was a mathematical error or an obvious material mistake in computing the amount to be paid to the Attorney Lienholder and/or the SCM. 12 JA9262 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed223 10/03/18 DatePage Filed:16 08/09/2019 of 24 After any timely appeals are resolved, the Claims Administrator will disburse the withheld funds in accordance with the final decision, the provisions of the Settlement Agreement, and Court orders regarding implementation. Rule 27. Change of Address. If a Party changes its mailing address, email address, or phone number at any time during this process, the burden will be on that Party to notify the Claims Administrator and the opposing Party immediately. The Claims Administrator will keep all addresses on file, and the Parties may rely on these addresses until the Claims Administrator notifies them of a change. Rule 28. Exclusive Retained Jurisdiction. The Court retains continuing and exclusive jurisdiction over the interpretation, implementation, and enforcement of these Rules. Rule 29. Implementation of These Amended Rules. The Claims Administrator has discretion to develop and maintain internal policies and procedures it deems necessary to implement these Rules. 13 JA9263 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed224 10/03/18 DatePage Filed:17 08/09/2019 of 24 · No:r{CEj CONS~NT, AND·RE;FERENCE,OF AN ATTORNEY'~.:liEN DISPUJE · _·T: •' 'TO A MAGISTRATE JUDGE:fOR A FINAL DECISION ·.., ;··. ' ,, ',," ·: · I ,' · ',, ' '';'-:.... PARTIES . :. ' ,. _,;,; to THE .DISPUTE "' ' ,;, ,, Lien ID: A United States Magistrate Judge of this Court is available to conduct all proceedings and enter a final decision dispositive of each Dispute. A Magistrate Judge may exercise this authority to resolve a Dispute over an Attorney's Lien only if all Parties voluntarily consent. Both Parties to the Dispute may consent to have the Dispute referred to a Magistrate Judge for entry of a final decision, or either Party may withhold consent without adverse substantive consequences. The name of any Party withholding consent will not be revealed to a Magistrate Judge who may otherwise be involved with your Dispute. If either Party does not consent to have the Dispute referred to a Magistrate Judge for final disposition, the District Judge will enter a final decision resolving the Dispute after consideration of the Report and Recommendation from the Magistrate Judge and any objections from the Parties . • If you wish to consent to have the Magistrate Judge enter a final order as to the resolution of this Attorney's Lien Dispute, send the signed form to the Claims Administrator in one of these ways: By Email: By Facsimile: ClaimsAdministrator@NFLConcussion Settlement com (804) 521-7299; ATTN: NFL Liens By Mail: NFL Concussion Settlement Claims Administrator P.O. Box 25369 Richmond, VA 23260 ATTN: NFL Liens By Delivery: NFL Concussion Settlement c/o BrownGreer PLC 250 Rocketts Way Richmond, VA 23231 ATTN: NFL Liens www. NFLConcussionSettlementcom Page 1 of [X] JA9264 EXIDBITA Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed225 10/03/18 DatePage Filed:18 08/09/2019 of 24 If you are represented by a lawyer, consult with your lawyer if you have questions or need assistance. If you are unrepresented and have any questions about this Notice or need help, contact us at 1-855-8873485 or send an email to ClaimsAdministrator@NFLConcussionSettlement.com. If you are a lawyer, call or email your designated Firm Contact for assistance. For more information about the Settlement Program, visit the official website at www.NFLConcussionSettlement.com where you can read or download the Amended Rules Governing Attorneys' Liens, Frequently Asked Questions, and the complete Settlement Agreement. ~'_:, ~~ ; '•" ' ~~~~ ' VI. ~ '' ' ~' ~ ' CERTIFICATION Both the Settlement Class Member or his or her attorney, if represented, and the Attorney Lienholder must submit a signed copy of this form to the Claims Administrator to allow a Magistrate Judge to enter a final order resolving the Dispute. The statement may be signed by a current attorney on behalf of the Settlement Class Member. The signature may be an original wet ink signature, a PDF or other electronic image of an actual signature, or an electronic signature. By signing below, the following Party consents to have a United States Magistrate Judge conduct '!~X- (l_Q_d all proceedings and enter a final decision as to the Notice of Attorney's Lien fg-c[(-~.QJ ,_ - ·. ~~·~:~)', ' < ' ' .' >'- " ~·~ ' I Date I Signature I M.l. I Last First Printed Name . Law Firm www. NFLConcussionSettlement. com Page 2 of ['X] JA9265 EXHIBIT A Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed226 10/03/18 DatePage Filed:19 08/09/2019 of 24 . ~STATEMEN:fof" A TTORNEY'.s FE.ES. AND Cos'rs > e .~ ~ . . Reaue$rt>ATE: [DATE] . . Res~o~b~. tRe~u~~1DAre +:1'oj( ·.·(·.. · · ri~:AoLIN~th ::·' < . . -, ·,. . ' '" ·~' This Statement of Attorney's Fees and Costs ("Statement") is required pursuant to the Amended Rules Governing Attorneys' Liens adopted by the District Court (Doc. No.XMg~). An attorney from each law firm representing a Settlement Class Member who is a Party to an Attorney's Lien Dispute must complete a Statement within 10 days after the Claims Administrator's request. Submit the Statement to the Claims Administrator by email toCiaimsAdministrator@NFLConcussionSettlement.com and include ATTN: NFL Liens in the subject line. · . SEl:REMENT CLASS ·" '•\"' - MEMBE~ INFORMAfiC)N - - " Settlement Program ID Name First Last Settlement Class Member Type ATTORNEY'S FEES,AND COSTS A. Contingency Fee Percentage Fees to all Individually Retained Plaintiffs' Attorneys ("IRPAs") are capped at 22% of the Award plus reasonable costs unless the contingency fee contract reflects a lower rate or you filed a Petition for Deviation (Doc. No. 9863). The Claims Administrator will deduct 5% of the Award for Common Benefit Fees and deposit it into the Attorneys' Fees Qualified Settlement Fund, which reduces the IRPAs' percentage to 17% (Doc. No.10104). When you list your fee percentage on this Statement, list your full fee percentage. We will then make the applicable 5% adjustment. If your law firm is under a flat fee or hourly fee arrangement with the affected Settlement Class Member, indicate the total amount of fees incurred. B. Amount of Costs If you do not provide the dollar amount of your costs on this Statement, we will not withhold any funds to reimburse you for those costs, and you waive the right to seek reimbursement of those costs from the Settlement Class Member (Doc. No. ~5,(, Rule 17(b) and Doc. No. 10103). www. NFLConcussionSettlement.com Page 1 of[~] JA9266 EXHIBITB Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed227 10/03/18 DatePage Filed:20 08/09/2019 of 24 '. ,> .. :• \ ... " '' Ill. . :· ·····.' qeRTIFICATIQN :.~ .. ' ·., );. ..,, . ' By signing below, I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that all information provided in this Statement of Attorney's Fees and Costs is true and correct to the best of my knowledge, information and belief. I Date I Signature I M.l. I Last First Printed Name Law Firm www. NFLConcussionSettlement.com Page 2 of [XJ JA9267 EXHIBITB Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed228 10/03/18 DatePage Filed:21 08/09/2019 of 24 ,· '.~ ·.~ :~.=:,·~.· F • ;:';;:\1\flnibRAVvAL o~:;A.rfo~NEY'S LIEN ~ISPUT~/ .. .:f:, . . . ; ·. This Withdrawal Form ("Withdrawal") must be submitted to the Claims Administrator if the Parties to an Attorney's Lien Dispute reach an agreement resolving the Dispute at any time before the Magistrate Judge issues a Report and Recommendation or a final decision. Each Party to a Dispute must submit a Withdrawal that includes: 1. The agreed amount or percentage allocation of the Monetary Award funds withheld for attorneys' fees to be paid to each Party; 2. Any costs of the current attorney as reflected in the Statement of Fees and Costs with an itemized list of those costs including a brief explanation of the purpose of incurring the costs and the date the costs were incurred; 3. Any costs of the attorney lienholder(s) as set forth in the Lien assertion(s) with an itemized list of those costs including a brief explanation of the purpose of incurring the costs and the date the costs were incurred; 4. If the Settlement Class Member is represented in the Program, the allocation of responsibility for the 5% deduction for Common Benefit Fees among the Parties, and the allocation of a refund, if any, of the 5% deduction for Common Benefit Fees among the Parties. The Withdrawal must be approved by the Court. SETILEMENT CL.ASS MEMBER. INFORMATION .. ! !, •• First Name I Settlement Class Member Type Primary Counsel Street Address I City State Email Address ,. , II. ...... A:frORNEY.li~NHOLDER INFORMATIQ~j#.1) . Full Name or Law Firm Name Name Street Address City I State Email Address www. NFLConcussionSettlement.com Page 1 of[~] JA9268 EXIDBITC Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed229 10/03/18 DatePage Filed:22 08/09/2019 of 24 .·. Ill. ' .. " . . ATTORNE'( LI!;NHOLDER IN'FORMNi:JClN. (#2) (IF :APPLICABLE)' . . . ·.. . . ' . . . ... . ,: ·~ •. Full Name or Law Firm Name Name Street Address City I I State Zip Email Address ',"' ''"' ., ~ "' ' . ·tv: /SUMMARY~OF DISPUTE RESOLUTION' ' .,' ~ " " :.... !The Parties to the Dispute must complete the boxes below to reflect the amounts to be distributed to the Settlement Class Member or his or her attorney (if represented) and to the Attorney Lienholder(s). The total ~ees cannot exceed the Presumptive Fee Cap unless the Court granted a Petition for Deviation. To be Paid to Settlement Class Member or his or her Attorney Amount or Percentage of Fees Amount of Reasonable Costs** To be Paid to Attorney Lienholder #1 Amount or Percentage of Fees Amount of Reasonable Costs** To be Paid to Attorney Lienholder #2 Amount or Percentage of Fees Amount of Reasonable Costs** ** Costs for the current attorney or Attorney Lienholder{s) must have been provided to the Claims Administrator in the Statement of Fees and Costs and the Lien assertion{s), respectively. Each attorney must attach to this Withdrawal an itemized list of costs with a brief description of each cost and the date each cost was incurred. www. NFLConcussionSettlement. com Page 2 of 6(] JA9269 EXIDBITC Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed230 10/03/18 DatePage Filed:23 08/09/2019 of 24 The Claims Administrator is obligated to pay 5% of all Awards into the Attorneys' Fees Qualified Settlement Fund pending further order of the Court. If and only if the Settlement Class Member is represented in the Program, explain how the Parties wish to distribute those funds or a portion thereof, if they are refunded by the Court at a future date. Agreed Percentage of 5% Deduction to be Allocated to Settlement Class Member's Attorney Agreed Percentage of 5% Deduction to be Allocated to Attorney Lienholder #1 Agreed Percentage of 5% Deduction to be Allocated to Attorney Lienholder #2 Agreed Percentage of any Refund of 5% to be Paid to Settlement Class Member's Attorney Agreed Percentage of any Refund of 5% to be Paid to Attorney Lienholder #1 Agreed Percentage of any Refund of 5% to be Paid to Attorney Lienholder #2 Note: It is understood that the Claims Administrator will pay the Parties these amounts according to the provisions of the Settlement Agreement and Court orders regarding settlement implementation. By Email ClaimsAdministrator@NFLConcussionSettlement.com By Facsimile (804) 521-7299; ATTN: NFL Liens By Mail NFL Concussion Settlement Claims Administrator P.O. Box 25369 Richmond, VA 23260 ATTN: NFL Liens By Delivery NFL Concussion Settlement c/o BrownGreer PLC 250 Rocketts Way Richmond, VA 23231 ATTN: NFL Liens www. NFLConcussionSettlement.com Page 3 of[~] JA9270 EXIDBITC Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10283Page: Filed231 10/03/18 DatePage Filed:24 08/09/2019 of 24 .. ·y,·~ ·"·..J Settlement Class Member: If you are represented by a lawyer, consult with your lawyer if you have questions or need assistance. If you are unrepresented and have any questions or need help, contact us at 1-855-8873485 or send an email to ClaimsAdministrator@NFLConcussionSettlement.com. If you are a lawyer, call or email your designated Firm Contact for assistance. For more information about the Settlement Program, visit the official website at www.NFLConcussionSettlement.com to read the Frequently Asked Questions or download a copy of the complete Settlement Agreement. Lienholder: Contact us at 1-855-877-3485 or email ClaimsAdministrator@NFLConcussionSettlement.com. For more information about the Settlement Program, visit the official website at www.NFLConcussionSettlement.com to read the Frequently Asked Questions or download a copy of the complete Settlement Agreement. : ... VIL SJGNATU~E ·, '· .. . : ' , Both the Settlement Class Member or his or her attorney, if represented, and Attorney Lienholder(s) must submit a signed copy of this Withdrawal to the Claims Administrator. By signing this Withdrawal, each Party certifies the following: I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information provided in this Withdrawal is true and accurate to the best of my knowledge and that I understand that false statements made in connection with this process may result in fines, sanctions, and/or other remedy available by law. I certify that I have/will serve a copy of this signed Withdrawal on the Claims Administrator. By submitting this Withdrawal, I consent to the payment of the withheld funds according to the terms in Section IV. Signature Printed Name Date First Middle Initial Last Law Firm www. NFLConcussionSettlement.com , .. Page 4 of[~] JA9271 EXIDBITC Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294 Page: Filed 232 10/10/18 Date Page Filed: 108/09/2019 of 18 THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS' CONCUSSION INJURY LITIGATION No. 2:12-md-02323-AB MDL No. 2323 Hon. Anita B. Brody Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, Plaintiffs, v. National Football League and NFL Properties, LLC, successor-in-interest to NFL Properties, Inc., Defendants TillS DOCUMENT RELATES TO: ALL ACTIONS ORDER Pursuant to the Court's continuing jurisdiction over this action as set out in the Court's Amended Final Order and Judgment (Doc. No. 6534, paragraph 17), it is hereby ORDERED that the attached Amended Rules Governing Petitions for Deviation from the Fee Cap are ADOPTED. BY THE COURT: ~£~~:;;;;us~ Date: ~~f.::>t::( Approved. ~~ Anita B. Brody, J. Date: It?/1~>/t~ JA9272 'fc 7..--0 t g Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294 Page: Filed 233 10/10/18 Date Page Filed: 208/09/2019 of 18 JA9273 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294 Page: Filed 234 10/10/18 Date Page Filed: 308/09/2019 of 18 TABLE OF CONTENTS TITLE 1: GENERAL ................................................................................................................ 1 Rule 1. Rule 2. Rule 3. Rule 4. Rule 5. Rule 6. Purpose of These Rules .................................................................................... 1 Court Approval of These Rules ........................................................................ 1 Definitions Used in These Rules ..................................................................... .l Referral to Magistrate Judge ............................................................................ 2 How Things are Submitted and Served Under These Rules ............................ 3 How to Count Time Periods and the Date Something is Submitted Under These Rules ...................................................................... 3 TITLE II: SUBMISSION OF PETITION FOR DEVIATION ........................................... .4 Rule 7. Rule 8. Rule 9. Rule 10. Rule 11. Rule 12. Presumptive Fee Cap ........................................................................................ 4 Claims Administrator Communications with Represented SCMs .................. .4 Petitions for Deviation Must be Filed in the Court ......................................... .4 Filing Deadline for a Petition for Deviation .................................................... .4 Requirements for a Petition for Deviation ....................................................... 5 Referral of Petition for Deviation..................................................................... 5 TITLE III: RESOLUTION OF PETITION FOR DEVIATION ......................................... 6 Rule 13. Rule 14. Rule 15. Rule 16. Rule 17. Rule 18. Rule 19. Rule 20. Rule 21. Rule 22. Rule 23. Rule 24. Rule 25. Rule 26. Agreement to Consent Jurisdiction .................................................................. 6 Timing ofDocument Submissions ................................................................... 6 Memorandum in Support ................................................................................. 7 Response Memorandum ................................................................................... 8 Reply Memorandum ......................................................................................... 9 Petition Record ................................................................................................ 9 Appointment of Counsel .................................................................................. 10 Hearing ............................................................................................................. 10 Hearing Procedure ............................................................................................ 11 Magistrate Judge Report and Recommendation ............................................... 12 Final Decision of the Court ............................................................................. .12 Change of Address ........................................................................................... 12 Exclusive Retained Jurisdiction ....................................................................... 12 Implementation of These Amended Rules ....................................................... 12 EXHIBIT Exhibit A: Notice, Consent, and Reference of Petition for Deviation to a Magistrate Judge for a Final Decision JA9274 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294 Page: Filed 235 10/10/18 Date Page Filed: 408/09/2019 of 18 •'• ·;:,'~--v,; '',;,"~•' ','•,~>·<',\ /;'§:({{(""" """"'''·",:: ·-- '~(>\:',WND~!i'I~~~~f:~~~~~C'~~I#J()NS:FO.,.,<,:C!k'l\i,;,':, , TITLE 1: GENERAL Rule 1. Purpose of These Rules. These Rules govern the process for submitting a petition seeking an upward or downward deviation from the Presumptive Fee Cap on Individually Retained Plaintiffs' Attorneys' fees as set forth in the Court's AprilS, 2018 Order and Memorandum (ECF Nos. 9863 and 9862, respectively) and the process to resolve the Petition for Deviation. Rule 2. Court Approval of These Rules. The Court has approved these Amended Rules pursuant to its continuing and exclusive jurisdiction under Article XXVII of the Settlement Agreement and Paragraph 17 of the Court's May 8, 201S Amended Final Approval Order and Judgment (ECF No. 6S34). The Court may amend these Rules at any time. Rule 3. Def'mitions Used in These Rules. All capitalized terms used in these Rules will have the meanings given to them in the Settlement Agreement. In addition: (a) "Award" means a Monetary Award, Supplemental Monetary Award, or a Derivative Claimant Award. (b) "Court" is defined in the Settlement Agreement in Section 2.1(x). (c) "District Judge" means the Honorable Anita B. Brody, U.S.D.J., or any successor judge. (d) "Hearing Schedule" establishes the date, time, and place of the hearing, as described in Rule 20(b). The Claims Administrator will serve the Hearing Schedule on the Parties. (e) "Individually Retained Plaintiffs' Attorney" ("IRPA") means any attorney or law firm that is or was individually retained by a Settlement Class Member and performed work in connection with representing the Settlement Class Member in the NFL concussion litigation and/or in the Settlement Program. (f) "Magistrate Judge" means the Honorable David Strawbridge, U.S.M.J., appointed by the District Judge in the AprilS, 2018 Order regarding a cap on attorneys' fees for Individually Retained Plaintiffs' Attorneys (ECF No. 9863) to resolve all Petitions for Deviation or any other United States Magistrate Judge for the Eastern District of Pennsylvania appointed by subsequent order of the District Judge for this purpose. (g) Memorandum in Support" is the information served on the Claims Administrator by the Petitioner in support of the Petition for Deviation, as described in Rule 1S. 1 JA9275 _____ , ______________________________________ , Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294 Page: Filed 236 10/10/18 Date Page Filed: 508/09/2019 of 18 (h) "Party or Parties" means the Settlement Class Member or IRP A presenting or opposing a Petition for Deviation. Either Party may be represented by counsel. The Claims Administrator is not a Party to the proceedings. (i) "Petition for Deviation" or "Petition" means a petition filed in the United States District Court for the Eastern District of Pennsylvania, Case No.: 2:12-md-02323AB, seeking a deviation from the Presumptive Fee Cap on IRPAs' fees set forth in the Court's AprilS, 2018 Order and Memorandum (ECF Nos. 9863 'and 9862, respectively) due to exceptional or unique circumstances. G) "Petition Record" is the compilation of information provided by the Claims Administrator to the Magistrate Judge for his consideration when resolving a Petition, as described in Rule 18. (k) "Petitioner" means either a Settlement Class Member or an IRPA who files the Petition for Deviation. (1) "Presumptive Fee Cap" means the presumptive cap on attorney's fees imposed by the Court's AprilS, 2018 Opinion and Order (ECF Nos. 9862 and 9863), as described in Rule 7. (m)"Report and Recommendation" is the Magistrate Judge's recommendation to the District Judge for ruling on the Petition for Deviation, as described in Rule 22. (n) "Respondent" means either a Settlement Class Member or an IRPA who responds to the Petition for Deviation. (o) "Response Memorandum" is the information submitted to the Claims Administrator by the Respondent, as described in Rule 16. (p) "Reply Memorandum" is the information that may be submitted to the Claims Administrator by the Petitioner, as described in Rule 17. (q) "Settlement Class Member" ("SCM") means a Retired NFL Football Player, the Representative Claimant of a deceased or incompetent Retired NFL Football Player, or a Derivative Claimant. (r) "Settlement Program" means the program for benefits for SCMs established under the Settlement Agreement. Rule 4. Referral to Magistrate Judge. The District Judge has referred all Petitions for Deviation to the Honorable David Strawbridge, U.S.M.J., pursuant to the Court's AprilS, 2018 Order (ECF No. 9863) and as authorized under 28 U.S.C. § 636(b)(3). The Court will issue a fmal decision in accordance with these Rules. 2 JA9276 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294 Page: Filed 237 10/10/18 Date Page Filed: 608/09/2019 of 18 Rule 5. How Things are Submitted and Served Under These Rules. Where these Rules require service to the Claims Administrator, such service shall be by one of the following methods: (a) Email to ClaimsAdministrator@NFLConcussionSettlement.com, by a secured and encrypted method and include "Petition for Deviation" in the subject line; (b) Facsimile to (804) 521-7299, AT1N: Petition for Deviation; (c) Mail to NFL Concussion Settlement, Claims Administrator, P.O. Box 25369, Richmond, VA 23260, AT1N: Petition for Deviation; or (d) Delivery by overnight carrier to NFL Concussion Settlement, c/o BrownGreer PLC, 250 Rocketts Way, Richmond, VA 23231, AT1N: Petition for Deviation. Rule 6. How to Count Time Periods and the Date Something is Submitted Under These Rules. (a) How to Count Time Periods: Any time period set by these Rules will be computed as follows, which is based on Rule 6 of the Federal Rules ·of Civil Procedure: (1) Do not count the day that starts the running of any period of time. The first day of the period is the day after this trigger day. (2) Count every day, including Saturdays, Sundays, and legal holidays. (3) Count the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. (4) Legal holidays are New Year's Day, Martin Luther King, Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day, and any other day declared a holiday by the President of the United States or the United States Congress. (5) An additional three days will be added to any time period specified by these Rules for an action or submission where the acting or responding Party was served by mail with the Notice or submission requiring action or response rather than by service on a Portal or delivery. (b) How to Mark the Date Something is Submitted: Any document submitted by email or facsimile will be considered submitted on the date emailed or faxed at the local time of the submitting Party. Documents submitted by mail will be considered submitted on the postmark date. Documents submitted by overnight delivery will be considered submitted on the date delivered to the carrier. 3 JA9277 -- - ---------- Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294 Page: Filed 238 10/10/18 Date Page Filed: 708/09/2019 of 18 TITLE II: SUBMISSION OF PETITION FOR DEVIATION Rule 7. Presumptive Fee Cap. Pursuant to the Court's AprilS, 2018 Order and Memorandum establishing the Presumptive Fee Cap (ECF Nos. 9863 and 9862, respectively), fees to IRPAs are capped at 22% of the Award (unless the contractually-agreed upon amount is less than 22%, in which case the fee cap is the contractual amount), plus reasonable costs, less the amount (not to exceed 5% of the total Award) that the Court determines must be paid into the Attorneys' Fees Qualified Settlement Fund pursuant to the Court's June 27,2018 Order Regarding Withholdings for Common Benefit Fund (ECF No. 10104). Rule 8. Claims Administrator Communications with Represented SCMs. The Claims Administrator may communicate directly with represented SCMs in this process where necessary tb ensure an understanding of and compliance with these Rules. An SCM's current IRPA must provide the SCM's current email address, mailing address, and phone number to the Claims Administrator upon request. Rule 9. Petitions for Deviation Must be Filed in the Court. If an SCM or an IRPA seeks a departure from the Presumptive Fee Cap, he or she must file a Petition for Deviation in the United States District Court for the Eastern District ofPennsylvania, Case No.: 2:12-md02323-AB. A Petition for Deviation served on the Claims Administrator or filed with any other court is not effective in the Settlement Program and will not be considered by the Court. If the IRP A no longer represents the SCM at the time the Petition for Deviation is filed, the Petition must be filed in the Court along with a Notice of Attorney's Lien as required by Rule 7 of the Amended Rules Governing Attorneys' Liens (ECF No. 10283). Personal information such as Social Security Number, Taxpayer Identification Number, or Foreign Identification Number MUST NOT be included in the Petition for Deviation filed with the Court, pursuant to the Local Rules of Civil Procedure for the Eastern District of Pennsylvania, Rule 5.1.3. Rule 10. Filing Deadline for a Petition for Deviation. A Petition for Deviation can be filed by either an IRPA or an SCM. (a) SCMs and IRPAs who currently represent the SCM must file a Petition for Deviation no later than (1) 40 days after the date of the Notice ofMonetary Award Claim Determination or Notice of Derivative Claimant Award Determination, or (2) 10 days after issuance of the Post-Appeal Notice of Monetary Award Claim Determination or any post-appeal Notice of Derivative Claimant Award Determination, whichever is later. (b) IRPAs who no longer represent the SCM at the time the Petition for Deviation is filed must file such Petition no later than 10 days after the filing of a Notice of Attorney's Lien in the Court. The Court will not consider any Petition for Deviation from an IRPA that no longer represents the SCM if the attorney has not asserted an Attorney's Lien in the Settlement Program pursuant to the Amended Rules Governing Attorneys' 4 JA9278 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294 Page: Filed 239 10/10/18 Date Page Filed: 808/09/2019 of 18 Liens (ECF No. 10283 or any subsequent amendments to those Rules as approved by the Court). Rule 11. Requirements for a Petition for Deviation. The Petition must include: (a) The extent of the deviation sought; (b) A brief statement of the exceptional or unique circumstances for which the Court should allow a deviation from the Presumptive Fee Cap; (c) The payment terms in the original contingency fee agreement as understood by the Petitioner; and (d) A statement declaring under penalty of perjury that the Petitioner has informed the Respondent, or his or her attorney, if represented, that the Petition for Deviation is being filed with the Court and that the Petitioner has served the Respondent with a copy of the Petition for Dev~ation. Because personal information must not be included in the Petition for Deviation filed with the Court pursuant to Rule 9, the Claims Administrator will inform the Petitioner if it requires further identifying information or documentation to support the Petition for Deviation. Rule 12. Referral of Petition for Deviation. If and when an SCM becomes eligible for an Award, the Claims Administrator shall: (a) Withhold an appropriate amount, to the extent funds are available, sufficient to pay: (1) The full fee amount sought under the Petition for Deviation if an upward deviation is sought; or (2) The lower ofthe amount specified in the IRPA's fee contract signed by the SCM or 22% of the Award (reduced by an amount not to exceed 5% of the total Award to be paid into the Attorneys' Fees Qualified Settlement Fund), if a downward deviation is sought; (3) Plus reasonable costs. (b) Refer the Petition to the Magistrate Judge. If consent to Magistrate Judge jurisdiction is given pursuant to Rule 13, the Magistrate Judge will issue a fmal decision granting or denying the Petition in accordance with these Rules and as authorized by 28 U.S.C. § 636(c). Otherwise, the Magistrate Judge will prepare a Report and Recommendation in accordance with these Rules and pursuant to the Court's April4, 2017 Order (ECF No. 7446) and as authorized by 28 U.S.C. § 636(b)(3). The District Judge will enter a final decision deciding the Petition for Deviation. The Claims Administrator shall disburse the withheld funds in accordance with the Court's final decision, the provisions of the Settlement Agreement, and any Court orders regarding implementation. 5 JA9279 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294 Page: Filed 240 10/10/18 Date Page Filed: 908/09/2019 of 18 TITLE Ill: RESOLUTION OF PETITION FOR DEVIATION Rule 13. Agreement to Consent Jurisdiction. Pursuant to 28 U.S.C. § 636(c), the Parties may consent to have the Magistrate Judge enter a final order granting or denying the Petition for Deviation by signing and returning to the Claims Administrator the Notice, Consent, and Reference of a Petition for Deviation to a Magistrate Judge for a Final Decision (Exhibit A). If such consent is given, Rule 22 will no longer apply, and the Magistrate Judge's determination will become the final decision of the Court as described in Rule 23. Rule 14. Timing of Document Submissions. (a) Memorandum in Support: Within 30 days after the date of the Petition for Deviation, the Petitioner must submit to the Claims Administrator a Memorandum in Support of the Petition for Deviation, as provided in Rule 15. The Claims Administrator will serve the Respondent with the Memorandum in Support. (b) Response Memorandum: The Respondent must submit to the Claims Administrator a Response Memorandum, as provided in Rule 16, within 30 days after the date the Claims Administrator serves the Memorandum in Support. The Claims Administrator will serve the Petitioner with the Response Memorandum. Any request for a hearing by the Respondent must be made in the Response Memorandum. (c) Reply Memorandum: The Petitioner may submit to the Claims Administrator a Reply Memorandum, as provided in Rule 17, within 20 days after the date the Claims Administrator serves the Response Memorandum. Any request for a hearing by the Petitioner must be made in the Reply Memorandum. If the Petitioner decides not to submit a Reply Memorandum but wishes to request a hearing, the hearing request must be made in writing to the Claims Administrator within 20 days after the date the Claims Administrator serves the Response Memorandum. (d) The Petition Record: Within 30 days after the date of a Response Memorandum or a Reply Memorandum, whichever is later, the Claims Administrator will provide the Petition Record to the Magistrate Judge, as described in Rule 18, along with a statement of the amount of the Award funds withheld pending determination ofthe Petition for Deviation. (e) Exclusions from the Record: Any documents received after the Claims Administrator provides the Petition Record to the Magistrate Judge will not be considered by the Court, unless required by or approved by the Magistrate Judge. Any request to include supplemental submissions in the Petition Record must be in writing to the Claims Administrator. (f) Extensions of Time: Extensions of deadlines are discouraged and should not be filed on the Court's docket. Upon written request to the Claims Administrator and a showing of good cause, however, the Magistrate Judge may exercise discretion to extend or modify any submission deadline established by these Rules. Before the Claims Administrator presents any such request to the Magistrate Judge, the Parties 6 JA9280 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294Page: Filed241 10/10/18 DatePage Filed:10 08/09/2019 of 18 must confer and include a statement of any opposition to the request in the written statement. The Magistrate Judge will advise the Claims Administrator of any extension or modification of a submission deadline. The Claims Administrator will notify the Parties. Rule 15. Memorandum in Support. The Petitioner must serve the Claims Administrator with a Memorandum in Support of the Petition for Deviation. (a) If the Petitioner is an attorney, his or her Memorandum in Support shall include: (1) A copy of the attorney's retainer agreement signed by the SCM and any modifications to that agreement; (2) The extent of the deviation sought; (3) A chronology of the tasks performed by the attorney, the date each task was performed, and the time spent-on each task; (4) A list of costs with a brief explanation of the purpose of incurring these costs and the date the costs were incurred; (5) A statement of the total number of clients that he or she has represented in the Settlement Program; (6) Any exhibits; and (7) A statement signed by the Petitioner declaring under penalty of peijury pursuant to 28 U.S.C. § 1746 that the information submitted in the Memorandum in Support is true and accurate to the best of that Party's knowledge and that the Petitioner understands that false statements made in connection with this process may result in fines, sanctions, and/or any other remedy available by law. The signature may be an original wet ink signature, a PDF or other electronic image of an actual signature, or an electronic signature. (b) The Court will not consider fees and/or costs for tasks undertaken for the Settlement Class as a class, or for tasks performed by an attorney or law firm that replicate such common benefit tasks, or for any other tasks performed for the common benefit of the Settlement Class Members. The common benefit fees and/or costs are addressed through Article XXI of the Settlement Agreement and as addressed in the Court's April22, 2015 Opinion under the heading "Attorney's Fees." (ECF No. 6509). (c) If the Petitioner is an SCM, his or her Memorandum in Support shall include: (1) The retainer agreement with the attorney Respondent, and any modifications to that agreement, if the SCM has a copy; (2) The extent of the deviation sought; 7 JA9281 ______ - - - - - , --------- ------------ Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294Page: Filed242 10/10/18 DatePage Filed:11 08/09/2019 of 18 (3) Any information the SCM believes would be useful to the Magistrate Judge about the work performed by the attorney Respondent and any details regarding the SCM's interactions with the attorney Respondent; (4) Any docwnents or exhibits the SCM wants the Magistrate Judge to consider; and (5) A statement signed by the Petitioner declaring under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information submitted in the Memorandwn in Support is true and accurate to the best of that Party's knowledge and that the Petitioner understands that false statements made in connection with this process may result in fines, sanctions, and/or any other remedy available by law. The signature may be an original wet ink signature, a PDF or other electronic image of an actual signature, or an electronic signature. Rule 16. Response Memorandum. The Respondent must serve the Claims Administrator with a Response Memorandwn to the Memorandwn in Support. Any request for a hearing by the Respondent must be made in the Response Memorandwn. (a) If the Respondent is an attorney, his or her Response Memorandwn shall include: (I) A copy of the attorney's retainer agreement signed by the SCM, and any modifications to that agreement, if not provided by the Petitioner; (2) A chronology of the tasks performed by the attorney, the date each task was performed, and the time spent on each task; (3) A list of costs with a brief explanation ofthe purpose of incurring these costs and the date the costs were incurred; (4) A statement of the total nwnber of clients that he or she has represented in the Settlement Program; (5) Any exhibits; and (6) A statement signed by the Respondent declaring under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information submitted in the Response Memorandwn is true and accurate to the best of that Party's knowledge and that the Respondent understands that false statements made in connection with this process may result in fines, sanctions, and/or any other remedy available by law. The signature may be an original wet ink signature, a PDF or other electronic image of an actual signature, or an electronic signature. (b) The Court will not consider fees and/or costs for tasks undertaken for the Settlement Class as a class, or for tasks performed by an attorney or a law firm that replicate such common benefit tasks, or for any other tasks performed for the common benefit of the Settlement Class Members. The common benefit fees and/or costs are addressed 8 JA9282 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294Page: Filed243 10/10/18 DatePage Filed:12 08/09/2019 of 18 through Article XXI of the Settlement Agreement and as addressed in the Court's April22, 2015 Opinion under the heading "Attorney's Fees." (ECF No. 6509). (c) If the Respondent is an SCM, his or her Response Memorandum shall include: (1) Any information regarding the retainer agreement with the attorney Petitioner, or any modifications to that agreement; (2) Any information the SCM believes would be useful to the Magistrate Judge about the work performed by the attorney Petitioner and any details regarding the SCM's interactions with the attorney Petitioner; (3) Any documents or exhibits the SCM wants the Magistrate Judge to consider; and (4) A statement signed by the SCM declaring under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information submitted in the Response Memorandum is true and accurate to the best of the SCM's knowledge and that the SCM understands that false statements made in connection with this process may result in fines, sanctions, and/or any other remedy available by law. The signature may be an original wet ink signature, a PDF or other electronic image of an actual signature, or an electronic signature. Rule 17. Reply Memorandum. The Petitioner may serve the Claims Administrator with a Reply Memorandum, which shall be limited to five (5) pages. The Petitioner may not raise new allegations in a Reply Memorandum. He or she may only respond to assertions presented in the Response Memorandum. Any request for a hearing by the Petitioner must be made in the Reply Memorandum. If the Petitioner decides not to submit a Reply Memorandum but wishes to request a hearing, the hearing request must be made in writing to the Clams Administrator within 20 days after the date the Claims Administrator serves the Response Memorandum. The Reply Memorandum must include a statement signed by the Petitioner declaring under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information submitted in the Reply Memorandum is true and accurate to the best of that Party's knowledge and that the Petitioner understands that false statements made in connection with this process may result in fmes, sanctions, and/or any other remedy available by law. The signature may be an original wet ink signature, a PDF or other electronic image of an actual signature, or an electronic signature. Rule 18. Petition Record. (a) The Petition Record to be considered by the Magistrate Judge will consist of: (1) A copy of the Notice of Monetary Award Claim Determination or Notice of Derivative Claimant Award Determination; (2) The Petition for Deviation, as provided in Rules 9, 10, and 11; 9 JA9283 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294Page: Filed244 10/10/18 DatePage Filed:13 08/09/2019 of 18 (3) Memorandum in Support, as provided in Rule 15; (4) Response Memorandum, as provided in Rule 16; (5) Reply Memorandum, if any, as provided in Ru1e 17; and (6) Any additional evidence produced by either Party or the Claims Administrator in response to a request of the Magistrate Judge pursuant to Ru1e 14(e). (b) The Claims Administrator will assemble the complete Petition Record and provide it to the Magistrate Judge, along with a statement of the amount of the Award withheld pending resolution of the Petition for Deviation. Rule 19. Appointment of Counsel. The Magistrate Judge has the discretion to appoint counsel pursuant to the Court's January 8, 2018 Order (ECF No. 9561) for (l)pro se SCMs, and (2) SCMs who are unrepresented in these proceedings because the Parties are the SCM and his or her current IRPA. The SCM must serve the Claims Administrator with a written request showing good cause for appointment of counsel. The Claims Administrator will present the request to the Magistrate Judge and inform the SCM of the determination. Rule 20. Hearing. (a) Hearing Request: Any Party may request a hearing with the Magistrate Judge, provided that such request is submitted in the Response Memorandum or the Reply Memorandum, as required by Rules 16 and 17. The Magistrate Judge in his own discretion may order a hearing, if he determines that such proceeding would aid him in his resolving the Petition. The Magistrate Judge will determine if such hearing will be in-person, by video conference, or by telephone. (b) Hearing Schedule: If the Magistrate Judge determines a hearing is necessary, the Claims Administrator will serve a Hearing Schedule on the Parties. The hearing will be scheduled promptly, but no sooner than 20 days after the date of the Hearing Schedu1e. No provision of the Schedule will be modified except upon written request for modification within 14 days of the date ofthe Schedule. Thereafter, the Schedule may be modified only upon a showing of good cause that the deadline cannot reasonably be met despite the diligence ofthe Party seeking modification. Any request for modification must be submitted to the Claims Administrator and should not be filed on the Court's docket. The Claims Administrator will present the request to the Magistrate Judge and notify the Parties of the determination. (c) Telephonic or Video Conference Access for Hearing: The Claims Administrator will make the necessary arrangements for telephone or video conference access if the Magistrate Judge grants a hearing. (d) Accommodations: If a Party needs special accommodations for this process, that Party must make the necessary arrangements for those accommodations. 10 JA9284 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294Page: Filed245 10/10/18 DatePage Filed:14 08/09/2019 of 18 Rule 21. Hearing Procedure. If the Magistrate Judge grants a hearing, the following procedure will apply. (a) Evidence: The evidence that the Magistrate Judge may consider is limited to the Petition Record, testimony, and any additional documentation properly presented during the hearing. (b) Testimony Under Oath or Affirmation: Hearing testimony must be submitted under oath or affirmation administered by the Magistrate Judge or by any duly qualified person. If a Party wants to present live testimony of anyone other than a Party, he or she must submit a written request to the Claims Administrator no later than three (3) business days before the hearing that includes: (1) The individual's name and relationship to the requesting Party; (2) The nature and scope of the testimony to be provided; (3) The length of time the testimony will take; and (4) Whether the essence ofthe testimony could be presented in any other manner. The Claims Administrator will present the request to the Magistrate Judge and inform the Parties of the determination. All information presented at the hearing is provided in accordance with the certifications submitted with the Memorandum in Support, the Response Memorandum, and the Reply Memorandum, if any. (c) Audio Recording of Hearing: The hearing proceedings will be audio-recorded. The recording will be available through the Clerk's Office at the United States District Court for the Eastern District of Pennsylvania. Pursuant to 28 U.S.C § 753(b), the Parties may listen to the recording at the Clerk's Office during normal business hours without charge. The Parties may also order a transcript of the proceedings at their own expense. (d) Participation: All Parties and their counsel, if any, must participate in the hearing. Failure to participate without prior approval from the Magistrate Judge will result in the Magistrate Judge issuing a determination based on the Petition Record at the time of the hearing, together with any other evidence presented at the hearing. (e) Advocates: The Parties may, but are not required to, be represented by a lawyer. An SCM who does not have a lawyer for the hearing may,_ with the Magistrate Judge's permission, be represented by a non-attorney advocate. 11 JA9285 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294Page: Filed246 10/10/18 DatePage Filed:15 08/09/2019 of 18 Rule 22. Magistrate Judge Report and Recommendation. (a) Issuance: The Magistrate Judge will issue a Report and Recommendation after consideration of the Petition Record. (b) Content: The Report and Recommendation will be in writing and will set forth a recommended disposition of the Petition for Deviation. (c) Service: The Claims Administrator will serve the Report and Recommendation on the Parties. (d) Objections to Report and Recommendation: In accordance with Fed. R. Civ. P. 72(b)(2), the Parties will have 14 days from the date the Claims Administrator serves the Report and Recommendation to file specific written objections with the District Judge. The Claims Administrator will serve copies of the written objections on the Parties. The Parties will have 14 days from the date the Claims Administrator serves any objections to file a written response to the opposing Party's objections. The Claims Administrator will serve copies of any responses to the objections on the Parties. Rule 23. Final Decision of the Court. Except where Rule 13 may apply, the District Judge will, in accordance with Fed. R. Civ. P. 72(b)(3), enter a fmal decision after consideration of the Report and Recommendation from the Magistrate Judge and any objections from the Parties. Where Rule 13 does apply, the Magistrate Judge will issue the final decision of the Court. Upon issuance of the final decision by the Court, the Petition Record will be transferred to the Claims Administrator. The Claims Administrator will serve copies of the final decision on the Parties. Any Party may appeal the final decision. Within seven (7) days after the date of the final decision, the Court may exercise discretion to modify or correct the final decision if there was a mathematical error or an obvious material mistake in computing the amount to be paid to the attorney and/or the SCM. After any timely appeals are resolved, the Claims Administrator will disburse the withheld funds in accordance with the final decision, the provisions of the Settlement Agreement, and Court orders regarding implementation. Rule 24. Change of Address. If a Party changes its mailing address, email address, or phone number at any time during this process, the burden will be on that Party to notify the Claims Administrator and the opposing Party immediately. The Claims Administrator will keep all addresses on file, and the Parties may rely on these addresses until the Claims Administrator notifies them of a change. Rule 25. Exclusive Retained Jurisdiction. The Court retains continuing and exclusive jurisdiction over the interpretation, implementation, and enforcement of these Rules. 12 JA9286 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294Page: Filed247 10/10/18 DatePage Filed:16 08/09/2019 of 18 Rule 26. Implementation of These Rules. The Claims Administrator has discretion to develop and maintain internal policies and procedures it deems necessary to implement these Rules. 13 JA9287 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294Page: Filed248 10/10/18 DatePage Filed:17 08/09/2019 of 18 Both Parties to the Petition for Deviation may consent to have the Petition referred to a Magistrate Judge for entry of a final decision, or either Party may withhold consent without adverse substantive consequences. The name of any Party withholding consent will not be revealed to a Magistrate Judge who may otherwise be involved with the Petition. If either Party does not consent to have the Petition for Deviation referred to a Magistrate Judge for final disposition, the District Judge will enter a final decision resolving the Petition after consideration of the Report and Recommendation from the Magistrate Judge and any objections from the Parties. If you wish to consent to have the Magistrate Judge enter a final order as to the resolution of this Petition for Deviation, send the signed form to the Claims Administrator in one of these ways: By Email: By Facsimile: ClaimsAdministrator@NFLConcussionSettlement.com (804) 521-7299; ATTN: NFL Liens By Mail: NFL Concussion Settlement Claims Administrator P.O. Box 25369 Richmond, VA 23260 A TIN: NFL Liens By Delivery: NFL Concussion Settlement c/o BrownGreer PLC 250 Rocketts Way Richmond, VA 23231 A TIN: NFL Liens www .NFLConcussionSettlement.com JA9288 EXHIBIT A Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10294Page: Filed249 10/10/18 DatePage Filed:18 08/09/2019 of 18 If you are represented by a lawyer, consult with your lawyer if you have questions or need assistance. If you are unrepresented and have any questions about this Notice or need help, contact us at 1-855-887-3485 or send an email to ClaimsAdministrator@NFLConcussionSettlement.com. If you are a lawyer, call or email your designated Firm Contact for assistance. For more information about the Settlement Program, visit the official website at www.NFLConcussionSettlement.com where you can read or download the Rules Governing Petitions for Deviation, Frequently Asked Questions, and the complete Settlement Agreement. Both the Settlement Class Member or his or her attorney, if represented, and the Attorney Lienholder must submit a signed copy of this form to the Claims Administrator to allow a Magistrate Judge to enter a final order resolving the Petition for Deviation. The statement may be signed by a current attorney on behalf of the Settlement Class Member. The signature may be an original wet ink signature, a PDF or other electronic image of an actual signature, or an electronic signature. By signing below, the following Party consents to have a United States Magistra~e Judge conduct any and all proceedings and enter a final decision as to the Petition for Deviation (EPFNo~'', ; : :)~ Signature 1rs Printed Name Law Firm www.NFLConcussionSettlement.com JA9289 EXHIBIT A Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368 Page: Filed 250 01/07/19 Date Page Filed: 108/09/2019 of 93 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE: NATIONAL FOOTBALL LEAGUE No. 2:12-md-02323-AB PLAYERS’ CONCUSSION INJURY MDL No. 2323 LITIGATION Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, Plaintiffs, v. National Football League and NFL Properties, LLC, successor-in-interest to NFL Properties, Inc., Defendants. THIS DOCUMENT RELATES TO: Podhurst Orseck, P.A. v. Turner Attorneys’ Lien Dispute (Doc. No. 7071) Podhurst Orseck, P.A. v. Smith Attorneys’ Lien Dispute (Doc. No. 7064) Cummings, McClorey, Davis & Acho, PLC v. Johnson Attorneys’ Lien Dispute (Doc. No. 7449) REPORT AND RECOMMENDATION DAVID R. STRAWBRIDGE UNITED STATES MAGISTRATE JUDGE January 7, 2019 The Honorable Anita B. Brody, presiding judge responsible for the NFL Concussion Litigation referred to us “all petitions for individual attorneys’ liens.” (Doc. No. 7446). Pursuant to that Order of Reference we published rules governing the handling of these Liens. These Rules were approved and adopted by the District Court on March 6, 2018, with amendments approved JA9290 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368 Page: Filed 251 01/07/19 Date Page Filed: 208/09/2019 of 93 and adopted on October 3, 2018. (“Lien Rules” at Doc. No. 9760, as amended at Doc. No. 10283). On April 5, 2018, the District Court determined that “fees paid to [Individually Retained Plaintiff’s Attorneys (“IRPAs”)] will be presumptively capped at 22%.” (“Fee Cap”). (Doc. No. 9862 at 6). On that same day, the District Court referred any Petitions seeking a deviation from that 22% cap to us as well. Id at 8-9. Pursuant to that Order, we published rules governing Petitions for Deviation. These Rules were approved and adopted by the District Court on May 3, 2018, with amendments approved and adopted on October 10, 2018. (“Deviation Rules” at Doc. No. 9956, as amended at Doc. No. 10294). As of this writing, 723 petitions for Attorney Liens have been filed by IRPAs who formally represented Settlement Class Members (“SCMs”). These matters become ripe upon the issuance of a Monetary Award. The prospective volume of this litigation, as well as the expected delay between the filing of the Lien and the issuance of an Award, has made the Lien and Deviation Rules that we have issued necessary to provide what we hope is clarity to counsel and SCMs on how these matters will be resolved. Interested counsel will note that our Rules require the Parties to file their pleadings with the Claims Administrator as we anticipate that in many cases counsel will have been involved in a medical review and we may also have a need to review some of those medical records. It would be inappropriate to have these records published on ECF. The Claims Administrator has already set up processes that allow for the secure submission of such records. Presently before us for Report and Recommendation are three Attorney Lien (“Lien”) claims being asserted against SCM Awards. They are: (1) A Lien filed by Podhurst Orseck, P.A. (“Podhurst”) seeking fees and costs 2 JA9291 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368 Page: Filed 252 01/07/19 Date Page Filed: 308/09/2019 of 93 against the Award granted to Paul Turner, as a Representative Claimant,1 authorized to represent Kevin Turner (“Turner” or the “Estate”). Podhurst is seeking payment of attorneys’ fees up to the presumed maximum allowed under the Fee Cap imposed by the District Court. The Estate, through current counsel Polsinelli, P.C. (“Polsinelli”), disputes the Lien, claiming that Podhurst is not entitled to collect any fees against this Award, given the significant fee it received as Class Counsel and the de minimus work done for Turner individually; (2) A Lien filed by Podhurst seeking fees and costs against the Award granted to Chie Smith, as a Representative Claimant, authorized to represent her husband Steven Smith (“Smith” or “the Smiths”). Podhurst is seeking payment of attorneys’ fees up to the maximum allowed under the Fee Cap imposed by the District Court. Smith, through her current counsel Catherina Watters, Esq. and Tucker Law Group, LLC (“Watters”), disputes the Lien, claiming that Podhurst is not entitled to collect any fees against this Award, given the significant fee received as Class Counsel and the de minimus work done for Smith individually; (3) A Lien filed by Cummings, McClorey, Davis & Acho, PLC (“CMDA”), seeking fees and costs against the Award granted to Levi Johnson (“Johnson”). Cummings is seeking payment of attorneys’ fees of 20% of the Monetary 1 Under the terms of the Settlement Agreement, a Representative Claimant is an authorized representative of a deceased, legally incapacitated or incompetent Retired NFL Football Player. Settlement Agreement, Article II, Section 2.1(eeee). 3 JA9292 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368 Page: Filed 253 01/07/19 Date Page Filed: 408/09/2019 of 93 Award paid to Johnson, as well as the reimbursement of $2,617.20 in costs associated with their representation. Johnson disputes the Lien generally, but has failed to submit pleadings to this Court setting out the specifics of his objection. As we consider these three Liens individually, we acknowledge that there are differences in the particular circumstances presented. But we also acknowledge that there are important similarities. This leads us to the decision to address these matters in a single opinion, so we may set out the legal constructs that apply generally to this lien litigation that has been referred to us. Before doing so, we provide the relevant procedural and factual background of the NFL Concussion Litigation, so that we may discuss the work of these IRPAs against the backdrop of the obligations of counsel generally. In this recitation we take care to distinguish the work performed by IRPAs from the work performed by attorneys for the benefit of the class as a whole (“Class Counsel”).2 We also provide the procedural background as related to the District Court’s Attorney Fee decisions that have issued to date. I. FACTUAL AND PROCEDURAL BACKGROUND A. Procedural History of the Class Action Settlement This case began as an aggregation of lawsuits brought by former Players against the NFL Parties for head injuries sustained while playing NFL football. On July 19, 2011, Maxwell, et al. 2 The attorneys working for the common benefit of all plaintiffs in the Multi-District Litigation (“MDL”) were not formally considered Class Counsel until the Settlement Agreement, which established a class action for purposes of Settlement, was approved. We, however, use the phrase to mean any lawyer who was paid by the District Court for work performed for the common benefit of the collective group of plaintiffs in this MDL, which ultimately became a class action. 4 JA9293 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368 Page: Filed 254 01/07/19 Date Page Filed: 508/09/2019 of 93 v. NFL, et al. was filed in the Superior Court of the State of California, Los Angeles County.3 Soon thereafter, Pear, et al. v. NFL, et al. (August 3, 2011)4 and Barnes et al. v. NFL, et al. (August 26, 2011)5 were filed in the same court. On October 11, 2011, all three matters were removed to federal court by the NFL Defendants, (ECF No. 11-cv-8394 (C.D. Cal.); ECF No. 11-cv-8395 (C.D. Cal.); ECF No. 11-cv-8396 (C.D. Cal.)), who argued preemption under section 301 of the Labor Management Relations Act, “because plaintiffs’ claims arise from or are substantially dependent upon the terms of the collective bargaining agreements . . . pursuant to which the vast majority of players played in the NFL.” (MDL No. 2323, Doc. No. 1-1 at 2). On December 8, 2011, the motion for remand was denied on the basis that a least one state law claim was preempted by federal law. Upon concluding that one claim was preempted, the Court determined that its review of the preemption issue on the remaining claims was best left to the motion to dismiss stage of the proceedings. (ECF No. 11-cv-8394 (C.D. Cal.), Doc. No. 58 at 3). On August 17, 2011, while these matters were being joined in state court, the first putative class action in what became this MDL, Easterling, et al. v. NFL, 11-cv-5209 (E.D. Pa), was filed by Anapol Weiss in this Court. On November 9, 2011, the NFL filed a Motion to Dismiss the amended complaint, raising preemption, as well as other defenses. (ECF No. 11-cv-5209, Doc. No. 19). On November 15, 2011, the NFL Parties then filed a motion in the United States Judicial Panel on Multidistrict Litigation (“JPML”) (MDL No. 2323), seeking to transfer all four matters 3 Maxwell was filed by Girardi Keese and Goldberg, Persky and White, P.C. 4 Pear was filed by Girardi Keese and Goldberg, Persky and White, P.C. 5 Barnes was filed by Rose, Klein and Marias LLP. 5 JA9294 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368 Page: Filed 255 01/07/19 Date Page Filed: 608/09/2019 of 93 for consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. On December 6 and 7, 2011, the plaintiffs in these proceedings filed memoranda in support of the NFL’s Motion for Transfer.6 On December 21, 2011, the Panel on Multidistrict Litigation ordered a hearing for January 26, 2012. By the end of December seven similar proceedings were filed in courts throughout the country. (MDL No. 2323, Doc. No. 31). On January 31, 2012, the Panel granted the motion and issued an order that the matter be transferred to the Eastern District of Pennsylvania and assigned to Judge Brody for “coordinated and consolidated pretrial proceedings.” The MDL was formed. (MDL No. 2323, Doc. No. 61). On March 6, 2012, the District Court issued the first Case Management Order in the MDL, which governed the 32 cases that had been consolidated as of that date. By the Order, counsel for plaintiffs were directed to meet and confer and file a Proposed Case Management Order by April 5, 2012, in anticipation of the Initial Organization Conference that would be held on April 25, 2012. (Doc. No. 4). The attorneys who had appeared in the Transferor Courts were admitted to the Eastern District of Pennsylvania pro hac vice in this litigation and were advised that they were obligated to comport themselves “in accordance with the Pennsylvania Rules of Professional Conduct and the Rules of this Court.” (Id. at 5). On April 3, 2012, the plaintiffs provided the Court with a proposed Organizational Structure, which included the creation of a Plaintiffs’ Executive Committee (“PEC”) and a Plaintiffs’ Steering Committee (“PSC”). (Doc. No. 54). On April 26, 2012, the Court appointed Christopher Seeger, Esq. as Co-Lead Counsel and ordered the plaintiffs to select an attorney from 6 Only the Riddell defendants, which had not been sued in the class action, but had been sued in the three other cases, opposed the motion. 6 JA9295 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368 Page: Filed 256 01/07/19 Date Page Filed: 708/09/2019 of 93 the Philadelphia-based lawyers to be Co-Lead Counsel. (Doc. No. 64). In the same order, the Court made the appointments to the Plaintiff’s Committees as had been proposed in the April 3 rd request. The NFL’s Motion to Dismiss on preemption grounds was designated to be heard on an expedited basis, and a briefing schedule was issued pertaining to this issue. (Id.) Class Counsel then filed a Master Administrative Long-Form Complaint and a Master Administrative Class Action Complaint for Medical Monitoring. Thereafter, IRPAs submitted individual short-form complaints for their individual clients. Class Counsel filed a series of responses to the Motions to Dismiss and Motion to Sever that were filed by the NFL and Riddell. (Doc. Nos. 4130-4134, 4136-4137, 4589, 4591). Argument on the contested motions was held on April 9, 2013. On July 8, 2013, while the contested motions were pending, the District Court Ordered the Parties to mediation before retired U.S. District Court Judge Layn Phillips. (Doc. No. 5128). Intense negotiations followed, ultimately leading to the Settlement Agreement that was approved by the District Court on April 22, 2015. As it is relevant to our resolution of these Lien claims, we set out chronologically key dates of activities taking place throughout these negotiations: • August 29, 2013: The Parties signed a Term Sheet (Doc. No. 5235); • January 6, 2014: Class Counsel moved for entry of a preliminary order approving the proposed settlement and conditionally granting class certification (Doc. No. 5634); • January 14, 2014: The motion was denied without prejudice due primarily to the Court’s concerns about the cap on the Monetary Award Fund (Doc. No. 5658); • June 25, 2014: An Amended Settlement Agreement was submitted to the Court (Doc. No. 6073); • July 7, 2014: The District Court issued an Opinion and Order granting preliminary approval (Doc. Nos. 6083 and 6084); 7 JA9296 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368 Page: Filed 257 01/07/19 Date Page Filed: 808/09/2019 of 93 • November 19, 2014: The Fairness Hearing was held; • February 2, 2015: The District Court proposed additional changes to the Settlement Agreement (Doc. No. 6479); • February 13, 2015: The Parties submitted a new Settlement Agreement (Doc. No. 6481); • April 22, 2015: The District Court approved the Settlement Agreement (Doc. No. 6508 and 6509). On May 13, 2015, the first of 11 appeals challenging the Settlement Agreement was filed (Doc. No. 6539). On April 18, 2016, the Court of Appeals for the Third Circuit affirmed the District Court’s approval of the Settlement Agreement. Petitions for certiorari were denied by the United States Supreme Court on December 12, 2016. On January 7, 2017, the Effective Date of the Settlement, the Class was able to move ahead with the implementation of the Settlement Agreement. On February 6, 2017, the six-month period to register as a class member opened. On April 7, 2017, the Claims Administrator began accepting claim submissions for an Award from the Monetary Award Fund. B. Procedural History of the Attorneys’ Fees Litigation This Settlement Agreement came about as a result of “hard-fought” negotiation between Class Counsel and the NFL. (Doc. No. 6509 at 8). For the plaintiffs, the efforts of these attorneys led to a claims process that eliminated significant legal risks in this litigation, including the NFL’s preemption defense and the complexities surrounding causation for the individual claimants. See (Doc. No. 6073-4 at 6-8 (Declaration of Mediator, Retired District Court Judge Layn Phillips, discussing the litigation risks for the class and the NFL)). As the District Court summarized, “[t]he Settlement allows Class Members to choose certainty in light of the risks of litigation.” (Doc. No. 6509 at 74). Under the Terms of the Settlement Agreement, Class Counsel is paid through the Attorneys’ Fees Qualified Settlement Fund (the “AFQSF”). The District Court has reserved for 8 JA9297 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368 Page: Filed 258 01/07/19 Date Page Filed: 908/09/2019 of 93 itself the decisions that relate to the funding of the AFQSF and the allocation of payment to Class Counsel. (Doc. No. 7446). It is not part of our remit. As is seen in the three cases that are before us today, there are disputes that arise out of contingent fee agreements (“CFAs”) between a SCM and an IRPA where the IRPA also worked as Class Counsel and has benefited from the payments authorized by the District Court’s May 24, 2018 Order. (Doc. No. 10019). We have found in addressing these claims, setting out the distinctions between work done for the common benefit from the work done for an individual client is challenging. We consider the parties’ submissions and, in many instances, will look to Class Counsel’s statements to the District Court about the work performed for the class benefit, as well as the District Court’s opinions, to distinguish between class benefit work and work completed for the individual claimant. It is our hope and expectation that this opinion shall provide guidance to counsel as to how to distinguish this work on an ongoing basis. 1. The Common Benefit Fund The Settlement Agreement allowed for funding of the AFQSF through two sources: a payment of up to $112.5 million by the NFL Parties and up to a 5% deduction from all Awards (the “5% Holdback Request”). On April 5, 2018, the District Court granted Class Counsel’s request, approving the $112.5 million dollars to be paid by the NFL Parties for work done by Class Counsel in securing the settlement and implementing the Settlement Agreement. (Doc. No. 9860). Understanding that there is further work to be done to implement the Settlement Agreement, the District Court reserved decision on the 5% Holdback Request until such time as the Court believes it can accept an assessment of the extent of the funds to be needed. (Id. at 17-18). 2. Allocation of the AFQSF Due to the nature of the settlement, which will require work from Class Counsel over the 9 JA9298 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed259 01/07/19 DatePage Filed:10 08/09/2019 of 93 65-year term, the AFQSF has been used to pay Class Counsel for their work in securing the Settlement Agreement but also will be used to pay Class Counsel for their work in implementing the Settlement Agreement over its full term. On May 24, 2018, a portion of the AFQSF was allocated to Class Counsel for their work in implementing the Agreement. At the request of the District Court, Co-Lead Class Counsel submitted a proposed allocation of common benefit attorneys’ fees. Any other attorneys seeking payment or objecting to the proposal submitted by Co-Lead Class Counsel were granted leave to file a counter-declaration with the Court. (Doc. No. 8448). Ultimately, the District Court approved Class Counsel’s request for costs incurred in securing the Settlement (Doc. No. 9860 at 5) and allocated the funds to be paid to 26 separate law firms for work performed for the benefit of the class in securing the Settlement. (Doc. No. 10019 at 25-26). Upon payment of those fees for securing the Settlement, approximately $23 million remained in the AFQSF to pay counsel who work for the benefit of the Class through the implementation of the Settlement over its 65-year term. (Doc. No. 10019 at 25). The question of what percentage, if any, of each Monetary Award that will be needed to pay for the implementation of the Settlement remains undetermined. When there is sufficient information, the District Court will address this point, through its ruling on the 5% Holdback Request. 3. The Fee Cap The District Court appointed Professor William B. Rubenstein of Harvard Law School as an expert witness on attorneys’ fees to aid the Court. See (Doc. No. 8376 (Order Appointing Professor Rubenstein); (Doc. No. 9526 (“Rubenstein’s Report”)); (Doc. No. 9571 (“Rubenstein’s Reply”)). After considering the recommendations of Professor Rubenstein and the viewpoints of interested parties, the District Court adopted Professor Rubenstein’s conclusions and capped 10 JA9299 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed260 01/07/19 DatePage Filed:11 08/09/2019 of 93 IRPAs’ fees at 22% plus reasonable costs. (Doc. No. 9862 at 2). This conclusion was based on a two-part analysis. First, the Court adopted Professor Rubenstein’s conclusion that “a one-third contingent fee best approximate[s] the risk and work that the two sets of attorneys (Class Counsel and IRPAs) undertook in this case.” (Doc. No. 9862 at 6, quoting Doc. No. 9571 at 3). Having already concluded that the payment of $112.5 million by the NFL into the AFQSF constituted 11% of the estimated overall class recovery, the Court determined that presumptively no IRPA could or should receive more than 22% in fees from a Monetary Award. As the District Court explained, the Fee Cap was necessary “to prevent a ‘free-rider problem’—enabling IRPAs to financially benefit from the work of Class Counsel even though they did not bear the costs.” (Doc. No. 9862 at 4-5).7 II. THE APPLICABLE LEGAL PRINCIPLES While none of the Parties before us have specifically challenged our authority to review the fee agreements, we confirm that proposition and discuss the ample authority supporting it. As the District Court explained, “Third Circuit law unequivocally supports the proposition that this Court possesses the inherent authority to regulate the contingent fees of lawyers appearing before it and any lawyer representing a class member in this Settlement is clearly subject to this authority.” (Doc No. 9862 at 3-4 (relying on Rubenstein’s Report 19; McKenzie Constr., Inc. v. Maynard, 758 F.2d 97, 100 (3d Cir. 1985) (“McKenzie I”); Dunn v. H. K. Porter Co., 602 F.2d 1105, 1110 (3d Cir. 1979)). 7 As was discussed above, the District Court has reserved judgement on whether an additional amount (not to exceed 5%) must be heldback from all Awards to ensure there are sufficient funds to pay Class Counsel for future work. Whatever percentage is ultimately selected, the District Court has indicated that it must be taken from the IRPA Award for the same reasons that the 11% reduction is necessary. (Doc. No. 9860 at 18 n.12; Doc. No. 9862 at 8 n.5). 11 JA9300 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed261 01/07/19 DatePage Filed:12 08/09/2019 of 93 Contingency fee agreements (“CFAs”) are a “special concern” for Courts and “are not to be enforced on the same basis as ordinary commercial contracts.” McKenzie I, 758 F.2d at 101. Under Third Circuit precedent, we are obligated to review CFAs to determine if the fee sought is reasonable in light of the five factors enumerated by the Third Circuit in McKenzie. It is also well established that District Courts have the power to monitor CFAs based upon the court’s “supervisory power over the members of its bar.” Dunn, 602 F.2d at 1109. This review is “part and parcel of the process a federal court follows both in supervising members of its bar and in meeting the obligations imposed on it by Fed.R.Civ.P. 23(e).” Id. at 1110 n.8. From the outset, counsel were advised that they were obligated to comport themselves “in accordance with the Pennsylvania Rules of Professional Conduct and the Rules of this Court.” (Doc. No. 4 at 5). A. The McKenzie “reasonableness” analysis The McKenzie five-part reasonableness analysis obligates us to evaluate the “performance of the attorney’s contractual obligations [with consideration of] the circumstances surrounding the engagement of the attorney.” McKenzie I, 758 F.2d at 101. We must first assess both (1) the circumstances existing at the time the Parties entered into the agreement and (2) whether subsequent events have rendered an agreement—however fair it may have been at the time of contracting—unfair at the time of enforcement. We then turn to our consideration of the attorney’s performance, where we examine: (3) the results obtained; (4) the quality of the work performed; and (5) whether the attorney’s efforts substantially contributed to the result. McKenzie Constr., Inc. v. Maynard, 823 F.2d 43, 45 (3d Cir. 1987) (“McKenzie II”); see also Doc. No. 9862 at 7 (District Court’s discussion of the McKenzie factors). We accept, as other Courts have recognized, that “the reasonableness standard, when employed in an attorney-client fee dispute is, by its very nature, difficult to define, much less 12 JA9301 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed262 01/07/19 DatePage Filed:13 08/09/2019 of 93 apply.” McKenzie I, 758 F.2d at 102. But where the reasonableness of the CFA is presented to us, either through a Lien Dispute or a Petition for Deviation, we must assess the McKenzie factors and apply them to the specific circumstances of each case. In so doing, we discern that there are markers within the history of this litigation from which we will be better able to evaluate the caseby-case specifics of the IRPA representation. Our Lien Rules and Deviation Rules were drafted with the McKenzie factors and the related burden of proof in mind. Lien Rule 17 and Deviation Rule 14 require a recitation of “[a] chronology of the tasks performed by the attorney, the date each task was performed, and the time spent on each task.” (Doc. No. 9760 at 9). The implementation of these rules provides us a vehicle for attorneys to present evidence as we and they work through the McKenzie factors. 1. The CFA at time of contracting As we see it, there are two primary factors that we must examine when we review the reasonableness of the contract at signing: (1) the legal challenges in the plaintiff’s pursuit of a monetary award and (2) the time-intensive nature of the litigation. It is clear that the risk for attorneys as to both of these factors changed significantly over the years that this litigation has progressed. The presence of risk in the attorney-client relationship is the critical factor with any CFA. See generally Restatement (Third) of The Law Governing Lawyers § 35 cmt c. (2000) (noting that it is reasonable for a contingency fee to exceed an hourly rate for similar representation because “[a] contingent-fee lawyer bears the risk of receiving no pay if the client loses and is entitled to compensation for bearing that risk.”). “[T]he obvious but critical characteristic of a contingent fee arrangement [is] the presence of risk.” In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig., 290 F. Supp. 2d 840, 850 (N.D. Ohio 2003). 13 JA9302 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed263 01/07/19 DatePage Filed:14 08/09/2019 of 93 Here it is accepted that there were significant risks at the outset of this litigation. See generally (Doc. No. 6073-4 at 6-7 (discussing the litigation risks for the class and the NFL)). The plaintiffs faced “stiff challenges surmounting the issues of preemption and causation.” (Doc. No. 6509 at 67-68 (cataloguing the issues as they related to preemption and the prior law)). Causation would have been similarly challenging, since the claims involved “complex scientific and medical issues not yet comprehensively studied.” (Id. at 60, 69-71 (discussing the evolving science at length)). In describing the complexity of the case absent a settlement, the District Court noted: Absent settlement, Class Members would have to conclusively establish what and when the NFL Parties knew about the risks of head injuries. This would require voluminous production from the NFL Parties, and time to sort through decades of records. Non-party discovery would be inevitable; Class Members would seek documents from individual NFL Member Clubs. To fully investigate scientific causation, the Parties would have to continue to retain costly expert witnesses…. In turn, the NFL Parties would seek discovery about the medical history of 20,000 Retired Players. (Id. at 61) (citation omitted). Further, Class Members also faced issues relating to specific causation. As the District Court explained: Class Members argue that the cumulative effect of repeated concussive blows Retired Players experienced while playing NFL Football led to permanent neurological impairment. Yet the overwhelming majority of Retired Players likely experienced similar hits in high school or college football before reaching the NFL…. Isolating the effect of hits in NFL Football from hits earlier in a Retired Player’s career would be a formidable task. (Id. at 71). The Settlement Agreement neutralized these risks. By way of stark example, the reasonableness of a contingent fee agreement at the time of contracting must be evaluated based on the timing of the contract signing in reference to the presence or absence of the Settlement Agreement. Risk as it related to overall workload also varied over time in this litigation. When law 14 JA9303 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed264 01/07/19 DatePage Filed:15 08/09/2019 of 93 firms undertake large-scale litigation, they are obligated to decline to take on other litigation. See Dunn, 602 F.2d at 1111. The cost to law firms in deciding to participate and thus forego alternative matters must be recognized. Professor Rubenstein noted the significant disparity of obligations for law firms undertaking the representation of claimants in each of three major phases in this litigation. These landmark moments in the litigation provide clear guideposts for us as we evaluate the reasonableness of the contracts when they were entered: • Phase 1: Individual Litigation; • Phase 2: Litigation with the MDL; • Phase 3: Litigation within the Class Action Settlement. (Doc. No. 9526 at 25-26). In each phase the risks for the law firm entering into the fee agreement varied greatly. In the first phase of the litigation, the law firms undertaking representation of players individually, without the benefit of the efficiencies contained within an MDL, faced monumental challenges. Those lawyers risked having to “pursuing the entire case themselves, perhaps even through trial, and fee arrangements reflecting those large contingencies would have been expected and appropriate.” (Doc. No. 9526 at 25-26). Once the individual cases were consolidated into an MDL, the risk, as it related to the volume of work to be undertaken by the law firm, changed dramatically.8 Once an MDL was formed, “lawyers contracting to represent clients were well aware that the costs of doing so had been greatly reduced: pre-trial proceedings would now be consolidated and undertaken once and 8 We recognize that at this phase in the litigation, the risks as to the legal challenges faced by the plaintiffs remained largely the same. This case remained a “high-risk, long-odds litigation.” (Doc. No. 9860 at 10). 15 JA9304 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed265 01/07/19 DatePage Filed:16 08/09/2019 of 93 the likelihood that any case would be remanded for trial declined significantly.” (Doc. No. 9526 at 26 (relying on In re TJX Companies Retail Sec. Breach Litig., 584 F. Supp. 2d 395, 405 (D. Mass. 2008) (“Multi-district litigation is like the old Roach Motel ad: ‘Roaches [the transferred cases] check in—but they don’t check out.’”) (quoting Professor Samuel Issacharoff)). The formation of an MDL resulted in the formation of the PEC, PSC and committees that took over the primary work in the case, as would have been expected. Case Management Order Number 5 provides a detailed list of the type of work that was shifted from the IRPAs to the Plaintiffs’ Committees, work that was to be compensated not through IRPA fee contracts, but through a common benefit fund: • investigation and research; • conducting discovery (e.g., reviewing, indexing and coding documents); • drafting and filing pleadings, motions, briefs and orders; • preparation and attendance at non-case specific depositions; • preparation for and attendance at state and federal Court hearings; • attendance at PEC- or PSC-sponsored meetings and addressing lawyers on the status of the litigation; • other PEC or PSC activities, including committee work; • work with expert witnesses; trial preparation and trial; • performance of administrative matters; and • performance of conventional administrative, scheduling, coordination and related liaison tasks performed by Plaintiffs' Liaison Counsel. (Doc. No. 3710 at 3).9 As Professor Rubenstein recognized, there is no clear demarcation line between Phase 1 9 The efficiencies inherent in an MDL, and the benefits to the IRPA, are well known. The stated role of the transferee court is to “promote the just and efficient conduct of such actions.” 28 U.S.C. § 1407(a). See generally In re Vioxx Prod. Liab. Litig., 650 F. Supp. 2d at 562-63 (discussing the benefit to IRPAs of not having to “pursue individual discovery, nor . . . to file individual motions, engage in individual settlement negotiations, or prepare individual trial plans”). 16 JA9305 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed266 01/07/19 DatePage Filed:17 08/09/2019 of 93 and Phase 2 of this litigation. The NFL filed its motion to consolidate the first four cases into an MDL on November 15, 2011, but the motion to consolidate was not granted until January 31, 2012. On the date the cases were transferred, the MDL Panel indicated it had already been notified of sixteen additional actions. (MDL 2323, Doc. No. 28). As with all of our reasonableness evaluations, we recognize the evaluation of contracts in this time period will require a sliding scale analysis. The risk was clearly at its highest before the motion; it clearly dropped after the motion was granted; how much the risk was reduced in the time between the two requires the exercise of informed discretionary judgment. Finally, in Phase 3, attorneys entered into fee contracts with the knowledge that the cases in this phase had the benefit of the negotiated Settlement Agreement and “it became apparent that IRPAs would be primarily responsible only for processing their clients’ claims through the claims facility.” (Doc. No. 9526 at 26). At this point in the litigation, it became clear that there was no risk that the case would be dismissed based on the significant legal challenges set out above. For most players with Pre-Effective Date Diagnoses, the claims process would be a straightforward application of the matrices from the Settlement Agreement. For some individuals, this means that the claim submission process will be more streamlined and efficient; for others the process still presents complexity as the Settlement Agreement contains various terms, factors and circumstances that have been subject in some cases to significant post-settlement litigation. The evaluation of the reasonableness of a fee contract signed even after the adoption of the Settlement Agreement will still require an evaluation of the specific facts and circumstances of each case. As with the start date of Phase 2, Phase 3 has no clear start date, but rather a period of time where the risks began to be reduced. With each new event, it became more likely that all individual cases would be resolved as a part of a class action settlement agreement. See (Doc. No. 10019 at 17 JA9306 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed267 01/07/19 DatePage Filed:18 08/09/2019 of 93 5, 13-14 (discussing the complexity of the litigation on appeal, and implicitly, the risk that remained in the case)). On August 29, 2013, the Parties signed a Term Sheet. On July 7, 2014, the District Court granted preliminary approval. On April 22, 2015, the District Court approved the final Settlement Agreement. On April 18, 2016, the Third Circuit affirmed the District Court’s decision. And on December 12, 2016, the petitions for writ of certiorari were denied. We consider the risk in this time-period as Phase 2 ended and Phase 3 began as a sliding scale as well. Separate and apart from the foregoing, we must recognize the “economies of scale” that are present in this litigation. As Professor Rubenstein noted, law firms who represented hundreds of clients “should be able to provide IRPA services at reduced contingent fee rates given the economies of scale.” (Doc. No. 9526 at 33). The Third Circuit has recognized the difficulties with contingent fee contracts in cases where a law firm’s collection of a high volume of clients “escalat[es] the attorneys’ fees without a proportionate increase in the effort and expense of litigation.” Dunn, 602 F.2d at 1113, n.12. In cases like this, the Circuit Court has stated that “[a] fair and equitable contingent fee agreement generally provides for a sliding scale in which fees based on a percentage of the total recovery decrease as the amount of the recovery increases.” Id. 2. The CFA at time of execution – impact of changed circumstances Even where the CFA may be considered reasonable at the time of signing, we are obligated to consider whether events arose in the litigation that rendered an otherwise reasonable contract unreasonable. “It should… be the unusual circumstance that a court refuses to enforce a contractual contingent attorney’s fee arrangement because of events arising after the contract’s negotiation.” McKenzie II, 823 F.2d at 45. Nonetheless, the risks here varied significantly from the outset of the original litigation to the circumstances when the fee awards were ultimately issued. We must give consideration to those circumstances, sometimes present here, “where the 18 JA9307 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed268 01/07/19 DatePage Filed:19 08/09/2019 of 93 lawyer’s retention of [the originally negotiated fee] would be unjustified and would expose him to the reproach of oppression and overreaching.” McKenzie I, 758 F.2d at 102. The District Court has already concluded that the change of circumstances here are such that contingent fee contracts must be reduced through the imposition of a Fee Cap. We conclude that further evaluation of the impact of these changed circumstances is best accounted for on a case-by-case basis, through an assessment of the remaining three factors in the McKenzie analysis, understanding that no contingent fee agreement can be in excess of 22% in the absence of exceptional and unique circumstances. In conducting this case-by-case analysis, however, we cannot use a strict lodestar analysis to evaluate a CFA. McKenzie II, 823 F.2d at 47, n.3 (stating that lodestar analysis is inapplicable to contingency fee contracts); see also Dunn, 602 F.2d at 1111 (rejecting the argument that it was inappropriate to assess the reasonableness of an IRPA fee agreement by comparing it to the fee paid by unrepresented class members (calculated under a Lindy analysis)). These are CFAs, so it is not proper to use the rates that could have been obtained based under an hourly fee agreement to evaluate their reasonableness. Nonetheless, in our Lien Rules, we indicated that IRPAs should provide written evidence of “the time spent on each task.” We seek this information only to the extent that the amount of time spent on a project can be an indicator of the substantiality of the effort required by the IRPA to perform the task.10 This does not mean that we are assessing contingent fee contracts based on 10 For example, review of a loan agreement might be a matter of course for counsel and could be undertaken quite easily with minimal time for review, or in some cases the review might require extensive negotiations with the lender that consume a much greater effort. We appreciate that some IRPAs may not have prepared contemporaneous billing records given the terms of the CFA, but estimates of time dedicated to a task will be an aid in assessing the nature of the work performed. 19 JA9308 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed269 01/07/19 DatePage Filed:20 08/09/2019 of 93 billable hours submitted or that we intend to “disallow” work that is not evidenced by contemporaneous time entries. As is explained below, an assessment of the substantiality of the contribution provided by the IRPA will ultimately be the most important factor in the McKenzie analysis as it applies to this case. 3. The results obtained The final three McKenzie factors work together, but we look at them individually to provide clarity in our analysis. Ultimately, we must evaluate “[3] the results obtained, [4] the quality of the work, and [5] whether the attorney’s efforts substantially contributed to the result.” McKenzie I, 758 F.2d at 101. The first part of this analysis is straightforward. Both the District Court and the Third Circuit have already endorsed the result obtained through the Settlement Agreement. As a general matter, this Settlement was widely endorsed by the Class, with only 1% of class members opted out of the litigation. In re Nat'l Football League Players Concussion Injury Litig., 821 F.3d 410, 438 (3d Cir. 2016), as amended (May 2, 2016). That overall result was obtained through the solid work of Class Counsel, but it intertwines with our evaluation of an IRPA’s work in obtaining the individual result for their particular clients. As to the result for each individual SCM, we are provided with the Notice of Monetary Award, which is presented to the SCM at the time an Award is issued. This Notice provides us with evidence of the nature of the class member’s diagnosis, as well as the extent of the Award for that SCM. We will evaluate each on a case-by-case basis. 4. The quality of the work performed Before we can evaluate the degree that an attorney’s overall performance contributed to the SCM’s Award, we must consider the quality of the work performed by each IRPA. It is also helpful as a general matter to evaluate the quality and necessity of the work performed for the 20 JA9309 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed270 01/07/19 DatePage Filed:21 08/09/2019 of 93 SCM individually by other attorneys, or by the SCM him or herself, that contributed to the Award obtained. The record before us does not lend itself to discussing the “quality” of the attorney’s work in any real sense.11 Rather, we look to whether the work was necessary, or justified based upon the circumstances at the time. This evaluation naturally morphs into an assessment of whether and to what degree that effort contributed to the result. Ultimately, our assessment of the “quality” of the work performed will always be influenced by the degree to which that work contributed to the result obtained. We recognize that under this Settlement Agreement there are circumstances where the SCM’s Award is based on a pre-existing diagnosis and obtaining an Award might not be particularly difficult, and subject to only the completion of the forms processed by the Claims Administrator.12 However, the District Court has already included the tasks of “shepherding of their clients through the claims process” as a factor in its conclusion that IRPAs provided a sufficiently substantial contribution to the Awards as to justify a reasonable fee not to exceed the 22% Fee Cap. (Doc. No. 9862 at 7). As Co-Lead Class Counsel has explained, the claims process in this case is not “routine or mechanical. . . . [T]he claims process here requires the involvement of designated medical experts in personally examining Retired NFL Football Players, and . . . in We assess “quality” not so much as in the context of how a particular task was undertaken, but rather by assessing the degree to which the work was undertaken as part of the effort to garner the highest award, in light of the circumstances at the time the task was undertaken. For example, the careful examination of medical records to ensure the highest Award is obtained, or facilitating a fair lending arrangement to maintain the client’s quality of life as the claims process is unfolding. 11 12 Because of the factors discussed here, we do not expect that the many IRPAs will have provided only perfunctory service to their clients. However, we note that where the nature of a lawyer’s work is “basically administrative in nature” we would expect that the fee agreement would account for that fact. See, e.g., In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig., 290 F. Supp. 2d at 853–54 (greatly restricting fee contracts where the lawyer merely “monitor[ed] the case” and “timely and properly fill[ed] out claims forms.”). 21 JA9310 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed271 01/07/19 DatePage Filed:22 08/09/2019 of 93 many instances has been and will continue to be adversarial, especially given the uncapped nature of the [Monetary Award Fund].” (Doc. No. 9552 at 8-9, n.15). Implementation of the Settlement Agreement has not been without challenge. We are aware of the administrative appeals that have been necessary to clarify terms in the Settlement Agreement, which have necessitated sometimes extensive work to be performed by IRPAs. Furthermore, IRPAs must be credited for work performed for their client that was reasonably deemed necessary at the time, even where the work ultimately became unnecessary under the Settlement Agreement. For example, in the early stages of this litigation, there was a realistic possibility that IRPAs might have to pursue these claims through individual cases. That meant that the attorneys were obligated to file lawsuits against the NFL Parties to ensure the IRPA’s client would be a party within the consolidated MDL case. Similarly, we anticipate that law firms might have taken actions on behalf of their client to preserve testimony or evidence that could be used if the individual case eventually went to trial. Such actions, not duplicative of work done by Class Counsel, were actions taken for the advancement of the individual player. The fact that such evidence was not ultimately used does not mean it cannot be considered in our evaluation of the overall work performed by each IRPA. While these activities might be defensive in nature, we will properly acknowledge them as worthy of compensation. We also recognize that there are instances where work that is performed by an attorney is best considered both as work done as an IRPA and work done for the common benefit. In these cases, where the service is for a mixed purpose, we must again exercise our discretion to allocate the value of that work between the two roles. Additionally, we expect that in some instances IRPAs will have performed work for their individual clients on matters that were collateral to the NFL Concussion Litigation and on other 22 JA9311 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed272 01/07/19 DatePage Filed:23 08/09/2019 of 93 personal matters. Where those matters are related to this litigation and the services were performed based on the expectation that payment would be covered by the CFA, these services will be considered. Recognizing that the burden of demonstrating that the fees requested are reasonable rests with the attorney, we rely on the attorneys seeking fees to present evidence through their Lien Dispute Submissions that would demonstrate to us the quality, or rather the value or necessity, of the work performed on behalf on the individual client. 5. The substantiality of the work Ultimately, we must evaluate the degree to which the attorney’s efforts substantially contributed to the result obtained. As with any case where multiple attorneys represented a client, we review the work performed by each attorney and allocate the total fees on a proportionate basis. This litigation is somewhat complicated by the fact that one set of responsible attorneys are Class Counsel, who were already paid for their services and are not a Party to this Attorney Lien Litigation. Further, in some instances, the final claims process was performed by an attorney working pro bono or by a class member acting pro se. Ultimately, however, the evaluation is the same. We will exercise our best judgment to determine the substantiality of the contribution by each attorney. The District Court has stressed the importance of “compartmentaliz[ing] the fees sought by Class Counsel for the work done to advance the interests of the Class and the work done by IRPAs to advance the interests of their individual clients.” (Doc. No. 9860 at 13). We have the benefit of the District Court’s opinions as they related to the Common Benefit Award and Allocation (Doc. No. 9860; Doc. No. 10019), as well as the fee requests submitted by each law firm who sought payment from the AFQSF, which provide us some details of the work performed 23 JA9312 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed273 01/07/19 DatePage Filed:24 08/09/2019 of 93 by IRPAs when working as Class Counsel. We must ensure these attorneys who are both IRPA and Class Counsel are not paid “twice for the same work.” (Doc. 9862 at 5). As we evaluate the contribution of the IRPA to the Award, we will take care to consider only IRPA work and not include common benefit work that was already paid through the AFQSF. In its establishment of a Fee Cap, the District Court has already taken action to reduce IRPA fees, accounting for the general benefit provided by Class Counsel. This cap takes into account (1) the value of the work provided by Class Counsel in their negotiation of a Settlement Agreement; (2) the benefits of Class Counsel’s work as the legal team in filing pleadings, framing the Settlement Agreement, and handling the complex appellate process that followed; and (3) the efficiencies provided when the case was resolved without formal discovery, with limited motion practice, and with no bellwether trials. We strongly consider the willingness of the IRPA to accept varying degrees of risk depending upon the timing of the representation. Such is particularly the case when the earliest cases were filed, before the MDL was established. Additionally, we have identified seven ways that IRPAs have supported their individual clients: (1) review of medical records and necessary actions to taken to ensure medical conditions were identified and diagnosed at the earliest possible date; (2) support of their individual clients in ensure their lawsuit would have evidentiary support should the matter proceed to trial; (3) review of other litigation that was related to ensure claims in this litigation would not be negatively impacted; (4) support of their individual clients in understanding the on-going settlement negotiations and risks, and in ultimately making the determination of whether to opt out of the class, (5) shepherding the individual client through a claims process from registration to receipt of a Monetary Award, (6) support of clients who were seeking loans and were exposed to predatory lending practices; and (7) providing necessary support in other personal matters collaterally related to this litigation. 24 JA9313 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed274 01/07/19 DatePage Filed:25 08/09/2019 of 93 This is not an exhaustive list of factors. We recognize that there will likely be other examples, which we will consider as each is presented. With this as a starting point, however, we will be able to incorporate our findings that relate to the quality and value of the work performed by the IRPA and determine whether or to what degree that work substantially contributed to the Award issued. B. The impact of the 22% Fee Cap on the reasonableness analysis The District Court’s Fee Cap does not relieve us of the obligation to review the McKenzie factors. Just as a CFA provides a starting point in a fee dispute, the District Court’s presumptive Fee Cap provides a starting point in our litigation. However, the Court’s ruling on this general point does not, and cannot, shift from the attorney the burden of proof to establish that the amount sought in the fee agreement is reasonable. It has long been acknowledged that the nature of the relationship between attorney and client obligates attorneys to carry the burden of proof to demonstrate that the fee awarded “is reasonable under the circumstances.” Dunn, 602 F.2d at 1111-13 (discussing deference to fee contracts, but cautioning that attorneys always bear the burden of demonstrating the reasonableness of their contracts). The District Court’s prior opinions in no way relieved attorneys of this obligation. Indeed, the Court explained that all attorneys seeking fees – whether those fee requests are submitted through a Lien or otherwise – are obligated to ensure their fees are “reasonable” under the standards articulated in McKenzie. (Doc. No. 9862 at 8-9 (noting the requirement and indicating the attorney’s burden of showing reasonableness by a preponderance of the evidence)). Where we are presented with a valid fee contract, we are required to assess if the payment of the fee would “result[] in such an enrichment at the expense of the client that it 25 JA9314 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed275 01/07/19 DatePage Filed:26 08/09/2019 of 93 offends a court’s sense of fundamental fairness and equity.” McKenzie I, 758 2d at 101. In two of the cases before us a Party in the Lien litigation also filed a Petition for Deviation downward from the presumptive Fee Cap. In each of these cases, we concluded that the filing of this petition was unnecessary, as the arguments were duplicative of the arguments contained in the Lien litigation that was already before us. As a general matter, we believe that a downward deviation petition will typically be unnecessary where there is already a pending Lien Dispute. As is detailed below, the question before us in this context is simply this: Is the fee sought by the contracting attorney reasonable under the analysis set forth in McKenzie; understanding that presumptively the fee cannot be more than 22%? A petition for downward deviation sets forth the same analysis, and the arguments will therefore be subsumed in that larger Lien analysis.13 With these standards in mind, we turn to the individual cases before us. III. DISCUSSION OF PODHURST v. TURNER Podhurst seeks 22% of the Award issued to Turner, through his father, Paul Raymond Turner, the Representative Claimant for the Estate. The Estate challenges the Lien, arguing that Podhurst did not perform any individual work here and is therefore not entitled to any fee as an IRPA. Podhurst argues that they performed all of the work necessary to obtain the Award and are therefore entitled to the full 22% available under the Fee Cap. We reject both positions. Rather, we hold that we must assess the reasonableness of the fee in light of the five factors enumerated by the Third Circuit in McKenzie. We begin with a consideration of “the reasonableness of the contingent fee arrangement” 13 In an instance where the attorney is seeking a deviation upward from the presumptive Fee Cap, we believe that a petition for deviation will be necessary. However, no such petition is before us for our evaluation today. 26 JA9315 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed276 01/07/19 DatePage Filed:27 08/09/2019 of 93 at the time of the contact’s signing. McKenzie II, 823 F. 2d at 45, n.1 and then determine whether the circumstances compel a different evaluation of the CFA at the time of its execution. We then look to the third, fourth and fifth McKenzie factors: “the results obtained, the quality of the work, and whether the attorneys’ efforts substantially contributed to the result.” McKenzie I, 750 F.2d at 101. Within our evaluation of the attorney’s overall performance, we are aware of our obligation to distinguish work performed for Turner as an individual SCM from work performed for the class as a whole. To the extent the work performed by Podhurst was already compensated, in whole or in part, we cannot consider it as a part of our reasonableness evaluation of the IRPA fee sought by Podhurst. A. Facts and Procedural History Turner first met with Podhurst about possible representation on September 26, 2011. Lienholder’s Statement of Dispute at 2. He did not sign a CFA with the firm however, until January 18, 2012. (Doc. No. 7071-2). Under the terms of the agreement, Turner agreed to pay 40% of any monetary award recovery, plus an additional 5% for any appellate proceeding. Payment was contingent on Turner’s success in the litigation. At that point, Podhurst had already filed a lawsuit against the NFL on behalf of 21 retired players. Jones, et al. v. NFL, 11-cv-24594 (S.D. Fla. filed on December 22, 2011). Turner was added to that lawsuit through an amended complaint on January 20, 2012. Id. at Doc. No. 14. As of January 2012, Turner had already been diagnosed with Amyotrophic Lateral Sclerosis (“ALS”).14 Turner was the representative of the symptomatic subclass, Subclass 2, which contained 14 Turner was diagnosed in June of 2010. 27 JA9316 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed277 01/07/19 DatePage Filed:28 08/09/2019 of 93 the group of retired NFL players who had received a Qualifying Diagnosis prior to the date of preliminary approval. He began working with Class Counsel in this role in July of 2013, during the negotiations that led to the submission of the first term sheet. (Doc. No. 6423-7 at 4 (Turner’s affidavit submitted to the District Court explaining the nature of his role as Subclass Representative and indicating his endorsement of the Settlement Agreement)). As Turner explained, he was extensively advised by Class Counsel about the settlement negotiations and the terms of the Settlement Agreement. (Id. at 3). He was formally appointed to be the Subclass Representative on June 25, 2014, upon the submission of the operative Settlement Agreement. Over the course of this representation, a dispute arose between Podhurst and Turner about attorneys’ fees. On June 2, 2015, Polsinelli agreed to represent Turner pro bono to advise him about the fee agreement with Podhurst. Although Turner sent inquiries about his fee agreement concerns to Podhurst, he did not advise the firm that he had engaged separate counsel. On March 24, 2016, Turner died after his long battle with ALS. After Turner’s death, his father, Raymond Turner, became the personal representative of the Estate. N.T. 10/3/2018 at 4.15 Podhurst sought a new fee agreement with the Estate, but those attempts failed. On April 15, 2016, the Estate terminated Podhurst’s representation. N.T. 10/3/2018 at 51. Polsinelli then took over Turner’s representation in the claim process. They are representing the Estate pro bono in this fee dispute as well. On December 14, 2016, Polsinelli filed a Motion to Resolve Attorney Fee Dispute, asking the District Court to preclude Podhurst from collecting any fees as an IRPA, given that they were also receiving fees as Class Counsel. (Doc No. 7029). Podhurst filed a Response on January 11, As citations referencing “N.T.” throughout this Report and Recommendation are citations to the Notes of Testimony to hearings held before us in the course of these attorney lien hearings. 28 15 JA9317 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed278 01/07/19 DatePage Filed:29 08/09/2019 of 93 2017 (Doc. No. 7071), and the Estate submitted a Reply on January 30, 2017 (Doc. No. 7114). On May 14, 2018, following the District Court’s Opinion relating to the Fee Cap, the District Court dismissed the Motion without prejudice to the Estate’s right to file a Petition for Deviation raising the same issues, which they have now done. (Doc. No. 9984). On May 29, 2018, Turner filed the Petition seeking a downward departure from the 22% presumptive Fee Cap to 0%, arguing that Podhurst had already been compensated for any work performed for Turner by the common benefit fee they received. (Doc. No. 10025). On June 9, 2017, while those matters were pending in District Court, the Claims Administrator issued a Notice that the Lien had been filed and provided the Estate twenty days to consent to or dispute the Lien. On June 17, 2017, the Estate advised the Claims Administrator of its intention to dispute the Lien. On June 22, 2017, the Claims Administrator issued a Notice of Monetary Award Claim Determination to Turner. On June 11, 2018, upon conclusion of the common benefit fee litigation, the issuance of the District Court’s Fee Cap Opinion, and the issuance of the Attorney Lien and Deviation Rules, the Claims Administrator issued a Schedule of Document Submissions setting the deadlines for the pleadings that needed to be submitted to resolve the Lien Dispute. On July 11, 2018, pursuant to Lien Rule 14 (Doc. No. 9760 at 9),16 the Parties submitted their Statements of Dispute to the Claims Administrator (“Lienholder Statement of Dispute” and “SCM Statement of Dispute”). On August 6, 2018, pursuant to Lien Rule 15 (Doc. No. 9760 at 10), they submitted their Response Memoranda (“Lienholder Response” and “SCM Response”). Both Parties then requested a hearing, which we granted. On July 24, 2018, with the consent of the Parties, having concluded 16 The pleadings were filed under our original Lien Rules, not the Lien Rules as later amended. 29 JA9318 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed279 01/07/19 DatePage Filed:30 08/09/2019 of 93 that the arguments in the Petition for Deviation were already before us in the pleadings filed in the Attorney Lien litigation, we denied the Petition for Deviation as moot. (Doc. No. 10161). Pursuant to Lien Rule 17, the Record of Dispute was transferred to this Court. On October 3, 2018, we held an evidentiary hearing, allowing the admission of evidence and argument for both sides. B. The Turner CFA It is undisputed that on January 18, 2012, Turner signed a CFA with Podhurst for the firm to represent him in his claim for damages against the NFL. (Doc. No. 7071-2). The Parties agree that the original contract was an agreement to pay 40% recovery of any monetary award, plus an additional 5% for any appellate proceeding. It is further agreed that Podhurst later reduced its contingency fee percentage to 25% but that following the District Court’s presumptive Fee Cap Order, Podhurst’s maximum fee cannot exceed 22%, absent the submission of Petition for Deviation demonstrating unique and extraordinary circumstances. (Doc. No. 7071 at 2). The Estate has not argued that the CFA is invalid. They argue, rather, that the 22% fee requested is “unreasonable” because Podhurst performed only de minimus work on behalf of Turner. Polsinelli Statement of Dispute at 9-10. We discuss the “reasonableness” of the total fee in detail below. Podhurst argues that they “should be awarded its full contractual fee because the contingency occurred.” Lienholder Statement of Dispute at 5. As we discuss within we are unwilling to give credence to this concept, as it is only a small part of the more expansive McKenzie reasonableness test.17 Whether the contract was fully completed or not, Podhurst is obliged to In any event, we reject Podhurst’s argument that the contingency was met in this case. As is discussed in detail below, there was still work to be done when Podhurst’s representation was terminated. To consider otherwise would be contrary to the conclusions in the District Court’s Fee Cap Opinion, which specifically included “shepherding of their clients through the claims 30 17 JA9319 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed280 01/07/19 DatePage Filed:31 08/09/2019 of 93 demonstrate that the contingent fee they were seeking was “reasonable” under the standards articulated by the Third Circuit in McKenzie. Podhurst also challenges the applicability of Third Circuit law in this context, arguing that we are bound by state law, not federal law, in our evaluation of the reasonableness of the fee agreement here. Podhurst relies on dicta in Novinger v. E.I. DuPont de Nemours & Co., 809 F.2d 212, 217 (3d Cir. 1987). This reliance is misplaced. This dicta from Novinger stated only that as a general matter state law applies to review of attorney fee contracts. In Mitzel v. Westinghouse, 72 F.3d 414 (3d Cir. 1995), the Circuit Court addressed the issue with greater particularity, explaining that while “generally” state law applies to the review of attorney fee contracts, contingent fee contracts are “treated differently.” Id. at 417. Third Circuit has made clear however that in evaluating IRPA contracts that exist in a class action, that we must apply federal law and review these fee contracts for reasonableness. Dunn, 602 F.2d at 1110, n.8. “Rules regulating contingency fees pertain to conduct of members of the bar, not to substantive law which determines the existence or parameters of a cause of action.” Mitzel, 72 F.3d at 417 (quoting Elder v. Metropolitan Freight Carriers, Inc., 543 F.2d 513, 519 (3d Cir. 1976)). Since “federal courts have the power to prescribe requirements for admissions before them and to discipline attorneys who have been admitted to practice before them . . . ‘such process” as a factor in its conclusion that IRPAs provided a sufficiently substantial contribution to the Awards as to justify the conclusion that, as a general matter, a fee up to 22% could be reasonable. (Doc. No. 9862 at 7); see also (Doc. No. 9552 at 8-9, n.15 (Class Counsel’s discussion of the complexities of the claims process)). Podhurst provides this Court with a series of cases setting forth the unremarkable proposition that if all the work is done in case, but the Award has not yet been issued, a client cannot fire his attorney and then claim that the contingency was not met. Lienholder Statement of Dispute at 7-8. The issue here is whether the work was completed or so closely completed that the contingency was met. The answer, considering the facts of this case, is no. 31 JA9320 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed281 01/07/19 DatePage Filed:32 08/09/2019 of 93 rules are of deep concern to the court which promulgated them.’” Id. This is why “contingency fee agreements in diversity cases are to be treated as matters of procedure governed by federal law.” Id. In Dunn, the Third Circuit was presented with a similar circumstance to the one presented here. 602 F.2d at 1109. Many of the members of a class had individual fee contracts with private attorneys. The Circuit concluded that the District Court had the authority to set aside private CFAs between attorneys and class members. As the Court explained, the District Court had the power to monitor CFAs generally based on the court’s “supervisory power over the members of its bar.” Dunn, 602 F.2d at 1109. Federal law applies as our review is “part and parcel of the process a federal court follows both in supervising members of its bar and in meeting the obligations imposed on it by Fed.R.Civ.P. 23(e).” Id. at 1110, n.8. Additionally, the Court explained that when a fee is to be paid through a settlement fund approved by the court, Rule 23 imposes an even greater responsibility on the Court to review the fee contracts. Id. The fact that this is an MDL does not change the analysis. As the District Court noted in the Vioxx litigation, “the MDL statute's mandate of fairness requires a uniform, consistent result for all attorneys and their clients. Any other result would be impractical from the standpoint of judicial economy. Conducting fifty independent analyses of reasonableness would drain judicial resources and would eliminate the efficiency that the MDL was designed to create.” In re Vioxx Prod. Liab. Litig., 650 F. Supp. 2d 549, 563 (E.D. La. 2009).18 Ultimately, we observe that the Third Circuit’s rule requiring that contingent fees be 18 As is discussed in the discussion of the CFA between Smith and Podhurst, where the Parties are disputing the validity of the contract or disputing the interpretation of a clause in the contract, state law may provide the relevant precedent to evaluate the claim. 32 JA9321 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed282 01/07/19 DatePage Filed:33 08/09/2019 of 93 “reasonable” is not unique. In the context of mass tort litigation, “a court that exercised inherent power to prevent a violation of the lawyers' professional responsibility to charge only reasonable rates would be acting within the parameters of inherent authority as described by the Supreme Court.” Contingent Fees in Mass Tort Litigation, 42 Tort Trial & Ins. Prac. L.J. 105, 127 (2006). “Any analysis of a fee agreement between an attorney and his client begins with the general rule that an attorney may not charge ‘in excess of a reasonable fee.’” In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig., 290 F. Supp. 2d at 850. “Courts that have considered the issue have nearly unanimously concluded that the power to consider the reasonableness of contingent fees is inherent in a federal court.” In re Vioxx Prod. Liab. Litig., 650 F. Supp. 2d at 559. Indeed, Dunn itself relied on the Canons of Professional Ethics as promulgated by the American Bar Association for the Court’s conclusion that contingent fee agreements are permissible “subject to the ‘supervision of the courts, as to their reasonableness.’” Dunn, 602 F.2d at 1108 (quoting Fitzgerald v. Freeman, 409 F.2d 427 (7th Cir. 1969)). In any event, Florida law, which Podhurst claims is applicable, does not appear to require a different result, even if it did apply. Podhurst points to a multi-factor analysis in Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So. 2d 366, 369, n.4 (Fla. 1995) which the Florida Court describes as a “good starting point.” We have reviewed this seven-factor reasonableness test and consider these factors as a part of the totality of circumstances of the particular case. Id. We observe that even if we were to consider this test, which we do not, we expect that the result would not likely be different than the result we come to here using the McKenzie factors.19 19 The Florida Court pointed to Rule Regulating the Florida Bar 4-1.5, which lists the following factors: 33 JA9322 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed283 01/07/19 DatePage Filed:34 08/09/2019 of 93 Finally, Podhurst has asserted that Turner’s termination of the CFA was for “an avowed purpose to avoid the contractual fee.” Lienholder Statement of Dispute at 10. While this assertion has little effect upon our analysis, we reject the implication. We see this as a misunderstanding by the estate over what the impact of the substantial common benefit fees coming to Podhurst would have upon their IRPA fees. See (Doc. No. 7029-11, Exhibits C through J (correspondence between the Parties detailing the dispute)). C. Applying McKenzie “reasonableness” Having established that there is a valid CFA in place and that we are obligated to review the fee under the McKenzie factors, we turn to the McKenzie analysis. Our inquiry begins “by (1) the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee, or rate of fee, customarily charged in the locality for the legal services of a comparable or similar nature; (4) the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained; (5) the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and (8) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client's ability to pay rested to any significant degree on the outcome of the representation. Id. 34 JA9323 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed284 01/07/19 DatePage Filed:35 08/09/2019 of 93 scrutinizing the reasonableness of the contingent fee arrangement” at the time of the contract’s signing and comparing it to the circumstances at the time of execution. McKenzie II, 823 F.2d at 45 n.1. Recognizing that the District Court has already adjusted fee agreements through the Fee Cap to account for the changed circumstances that occurred over the course of this litigation, we must determine if there were other factors specific to this individual case that should be considered in our assessment of the reasonableness of the fee at the time of the contract’s execution. We will then review (1) the result in the case, (2) the quality of the work performed by the attorneys, and (3) the substantiality of that contribution on the overall result. As is discussed in greater detail below, circumstances here, at the time of contracting and the time of execution, changed significantly, necessitating an adjustment to the fee beyond that contemplated within the District Court’s presumptive Fee Cap. In evaluating the remaining three prongs, we are satisfied that both Podhurst and Polsinelli provided quality work and made substantial contributions to the ultimate Award received in this case. Considering the substantiality of Podhurst’s contribution as an IRPA, as reduced to account for the contributions of Class Counsel and Watters, we recommend that Podhurst receive a fee of 15½ %, which will be reduced by the amount of the 5% holdback that the District Court deems necessary. 1. The CFA at time of contracting Our inquiry begins “by scrutinizing the reasonableness of the contingent fee arrangement” at the time of the contract’s signing. McKenzie II, 823 F.2d at 45 n.1. Here, there are two primary factors that we must examine: (1) the legal challenges in the plaintiff’s pursuit of a monetary award and (2) the time-intensive nature of the litigation. Podhurst signed a fee agreement with Turner very early in this litigation, when consolidation as an MDL was likely, but not certain. The legal challenges to the litigation remained substantial, but there was a strong likelihood that much of the 35 JA9324 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed285 01/07/19 DatePage Filed:36 08/09/2019 of 93 considerable time-intensive work that counsel were facing would be streamlined by the creation of the benefits of the MDL. (a) Filing before MDL consolidation Podhurst’s initial meeting with Turner occurred on September 26, 2011, but he did not sign his fee agreement until January 18, 2012. This was arguably at the very end of what Professor Rubenstein described as Phase 1, but effectively in the earliest stages of Phase 2. (Doc. No. 9526 at 25-26). The initial meeting with Turner occurred before the NFL filed its motion to consolidate, but after the first four cases in this MDL had been filed.20 On December 16, 2011, about a month after the NFL filed the motion to consolidate the cases as an MDL, Podhurst spoke again with Turner about representation. Although Turner did not sign with Podhurst at that time, Podhurst filed the initial complaint seeking damages against the NFL on behalf of 21 other retired players on December 22, 2011. At that point, it was nearly certain that Podhurst’s lawsuit was going to proceed within the MDL, as the NFL and all plaintiffs in the first four suits had sought consolidation. (MDL No. 2323, Doc. Nos. 17, 18, and 19 (all filed Dec. 7, 2011)).21 By January 18, 2012, when the CFA was signed, the fact that the case was almost certain to proceed jointly through an MDL necessarily changed the dynamic when assessing fees. The formation of the MDL committees allowed a central group to perform the work for the class, and 20 Maxwell, et al. v. NFL, et al. was filed on July 19, 2011; Pear, et al. v. NFL, et al. was filed on August 3, 2011; and Barnes et al. v. NFL, et al. was filed on August 26, 2011. The three cases were removed to federal court on October 11, 2011. On August 17, 2011, Easterling, et al. v. NFL, was filed in the District Court for the Eastern District of Pennsylvania. The only opposition to the MDL formation came from the Riddell defendants. But Podhurst’s complaint was solely against the NFL. 21 36 JA9325 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed286 01/07/19 DatePage Filed:37 08/09/2019 of 93 relieved IRPAs from having to complete the work independently. Podhurst was aware of the benefits of consolidation. As they explained in their Class Benefit Fee request, the firm hosted an organizational meeting prior to the JPML hearing. “The purpose and result of the meeting was to facilitate tentative agreements on coordination and leadership among the majority of counsel representing former players.” (Doc. No. 7151-8 at 4). Consolidation, however, did not eliminate risk. Despite the opportunity to spread out the workload, there were still substantial risks for Turner, including challenges relating to causation, preemption, and statute of limitations, to name a few. See (Doc. No. 9860 at 10 (describing this as a “a high-risk, long-odds litigation.”)). Additionally, Podhurst’s work in drafting and filing a lawsuit against the NFL and including Turner as a plaintiff was a necessary part of this litigation when Turner retained the law firm. To participate in the MDL, Turner needed to be a party in a lawsuit, which could be transferred into the soon-to-be-created MDL. Podhurst took on these risks when they filed the necessary pleadings. (b) Pre-MDL work as IRPA work Podhurst lawyers, like other firms who were involved in the early filings in this litigation, spent months prior to the filing of their initial lawsuit researching the legal issues that would be faced in the litigation. N.T. 10/3/2018 at 28. Since this voluminous upfront work creates a collateral loss of opportunity, which is an appropriate and necessary consideration for lawyers when negotiating the terms of the CFA. When Podhurst entered into the CFA with Turner, the fee could reasonably be considered to compensate the firm for this upfront work, as well as future work. We consider this work as a factor in evaluating the reasonableness of the contract at its drafting, but recognize that, as discussed below, circumstances changed over time. 37 JA9326 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed287 01/07/19 DatePage Filed:38 08/09/2019 of 93 (c) The clarity of Turner’s Diagnosis Turner was diagnosed with ALS in June of 2010, before this litigation began. To some degree the presence of that diagnosis reduced the complexity of the litigation for Podhurst at the time of contract signing. As a result, Podhurst’s obligations regarding Turner’s medical diagnosis were reduced. Podhurst was not obligated to secure additional neuropsychological or other evaluations for Turner, who was already under the care of well-respected doctors due to his prior diagnosis. (Doc. No. 10134 at 47 (explaining that Turner was being treated by Dr. Cantu prior to the initiation of the lawsuit)). Further, the early onset for Turner’s diagnosis relieved Podhurst of the obligation of reviewing medical records for earlier symptom presentation. As Podhurst explained in argument, Turner’s case was “an out of the ordinary case because there’s less to do. He had a clear qualifying diagnosis.” N.T. 10/3/2018 at 65. Ultimately, under the Settlement Agreement, the ALS diagnosis and the number of years that Turner played in the NFL were the only facts necessary to obtain an Award. But at the time of contract signing, the proof required for an Award was not known. We recognize that in these early stages Podhurst undertook responsibility to review Turner’s extensive medical history and obtained a full history relating to Turner’s playing career and history of concussions. (d) Conclusion Polsinelli does not challenge the reasonableness of the contract at the time of signing, nor do we. The complexity of the litigation at this early stage is apparent as are the risks. The articulation of the factors known at the time of contracting that demonstrate the significant change of circumstances by the time of execution of the contract. 2. The CFA at time of execution – impact of changed circumstances The fee contract between Podhurst and Turner remained in place for more than four years, 38 JA9327 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed288 01/07/19 DatePage Filed:39 08/09/2019 of 93 between January 18, 2012 and April 15, 2016. Between contract signing and the issuance of the fee award, the individual cases filed were consolidated into an MDL, and the litigation, broadly speaking, was resolved through a Class Action Settlement Agreement that relieved plaintiffs of their obligations relating to causation and resolved other significant legal obstacles that had existed at the outset. Further, this work anticipated in the CFA was accomplished by Class Counsel (including Podhurst), rather than Podhurst, working as an IRPA. Finally, Podhurst’s services were terminated before the completion of the contract, relieving the firm of the obligation of performing the tasks required to submit a claim through the administrative process set out in the Settlement Agreement. (a) Payment for pre-MDL work Podhurst lawyers, like other firms who were involved in the early filings, spent months prior to filing researching the legal issues that would be faced in the litigation. N.T. 10/3/2018 at 28. Since this voluminous upfront work and collateral loss of opportunity is a consideration for lawyers when CFAs are drafted, we believe it is a necessary consideration for us as we evaluate the reasonableness of the contract at its signing. When Podhurst entered into the CFA with Turner, the fee could reasonably be considered to compensate the firm for this upfront work, as well as future work. We consider this work as a factor in evaluating the reasonableness of the contract at its drafting, but recognize that, as discussed within, circumstances changed over time. At the time the CFA was signed, Podhurst reasonably anticipated that it would need to rely on its individually retained clients to obtain compensation for the extensive work it performed in advance of filing the complaints against the NFL. However, over the term of the contract, two things became clear: (1) that Podhurst and other law firms would be able to seek payment from what became the AFQSF to compensate them for this pre-MDL work and (2) Podhurst’s stable of 39 JA9328 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed289 01/07/19 DatePage Filed:40 08/09/2019 of 93 individual clients grew, allowing them to benefit from economies of scale. Podhurst included this pre-MDL work as part of the firm’s request for common benefit fees, stating that the “firm began investigating the possibility of a suit against the NFL in the Summer of 2011, after receiving inquiries on behalf of several former players. After investigating the history of the NFL’s handling of the problem and researching the law applicable to potential claims and likely defenses, our firm make the commitment to devote the considerable resources of personnel, time, and funds that would be necessary to take on the goliath of the NFL on an issue of vital importance to its business.” (Doc. No. 7151-8 at 3). This time was not included in the firm’s lodestar, as Class Counsel did not to include pre-MDL time in that calculation.22 However, we accept, as the District Court did when it allocated common benefit fees (see Doc. No. 10019), Podhurst’s own assertion that this was, at least in part, common benefit work, and we recognize that Podhurst received a 2.25 multiplier for the common benefit work they performed. This does not mean that at least some of this work did not also benefit Podhurst’s individual clients. We recognize that Turner benefited from his inclusion in this MDL prior to the establishment of the class. This individual work, however, was not performed exclusively for Turner, or any single client, but rather for all Podhurst’s clients. Recognizing the benefit of this expertise generated by the firm’s undertaking of this work, requires us to also consider economies of scale. At one point in this litigation, Podhurst represented 569 clients. (ECF No. 18-md-2323 (E.D. Pa.), Doc. No. 28 at 4). Although that number has reduced as the litigation has progressed, the fact of the matter is that Podhurst has benefited greatly from the economies of scale. Podhurst’s 22 The MDL was established by the panel on January 31, 2012. 40 JA9329 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed290 01/07/19 DatePage Filed:41 08/09/2019 of 93 initial complaint, filed in late December of 2011, was filed on behalf of 21 plaintiffs. (ECF No. 11-cv-24594 (S.D. Fla.), Doc. No. 1). On January 20, 2012, the complaint was amended to add Turner as well as others, increasing the number of plaintiffs to 98. (ECF No. 11-cv-24594 (S.D. Fla.), Doc. No. 14). It was amended one final time on February 3, 2012, increasing the number of plaintiffs to 135. (ECF No. 11-cv-24594 (S.D. Fla.), Doc. No. 14). The work researching, drafting and filing this lawsuit benefited all of these clients and must be distributed between them. Only a portion of the weight of this work is fairly attributable to our reasonableness analysis of the fee agreement with Turner. (b) Change due to Class Counsel’s work Through the Fee Cap, the District Court has already adjusted attorney fee contracts to account for the changes in circumstances that are attributable to Class Counsel’s contribution generally. Podhurst benefited from those changes of circumstance, as did other firms. But, in addition, the common benefit work altered Podhurst’s role in Turner’s case even more significantly. Because of Turner’s role as Subclass Representative,23 work that would have ordinarily been the responsibility of the IRPA was instead performed by attorneys working for the common benefit. Class Counsel supported Turner by advising him of the details of the settlement, helping him to present an effective media message, and by reviewing his medical records in depth. In some instances, it was Podhurst, acting as Class Counsel, who was performing these tasks. We know from Podhurst’s common benefit fee request that the firm deemed this work to be common 23 The Settlement Agreement addresses two Subclasses. Subclass 2 contained the group of retired NFL players who had received a Qualifying Diagnosis prior to the date of preliminary approval. 41 JA9330 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed291 01/07/19 DatePage Filed:42 08/09/2019 of 93 benefit work, not IRPA work. Since Podhurst’s work performed for the common benefit subsumed work that would have otherwise been IRPA work, the changed circumstance must be considered in the evaluation of the reasonableness of the agreement at the time of its execution. Conveying information about the negotiations and providing detailed information about the terms of the Settlement Agreement is an important obligation of the IRPA from the formation of the MDL through the start of the claims process. Here, however, as Turner was a Subclass Representative, it was Podhurst as Class Counsel, not an IRPA, who advised Turner about the intricacies of the negotiations and about the terms of the settlement. Podhurst recognized this when they submitted their work supporting Turner as a part of their common benefit claim. (N.T. 10/3/2018 7/13/2018 at 51; Doc. No. 7151-8 at 9). Further, as Podhurst explained, Turner “wanted to make sure there was public awareness of this problem.” (Doc. No. 7151-8 at 5). Ordinarily, the advice provided by counsel to a client about public appearances in light of pending litigation is best characterized as IRPA work, as the time was submitted for the benefit of the individual, not the common benefit. However, Podhurst submitted this work as a part of their common benefit declaration due to the nature of their role of Class Counsel. Podhurst partner Steven Marks (“Marks”) was Co-Chair of the Communications and Ethics Committee, which “developed a communications and media plan” for the class. In that role, Marks “worked along with an outside consultant which the PEC/PSC engaged on messaging, talking points, media strategies and OpEds to reinforce the significance of this litigation and the risks involved at all levels.” (Doc. No. 7151-8 at 5). Marks’ representations about this common benefit work specifically note his work with Turner to help advance this strategy for the benefit of the Class. Further, as Marks explained, his work with Turner as one of the “two main spokespersons” for the class: 42 JA9331 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed292 01/07/19 DatePage Filed:43 08/09/2019 of 93 I traveled to New York and Philadelphia on multiple occasions with Kevin Turner and Shawn Wooden and assisted with the preparation of talking points and primed them for questioning. Along with the two class representatives, I also did this with many other players, and their loved ones, including Herb Orvis, Chie Smith, and others. I also spearheaded identifying suitable players and in the preparation of the “Day in the Life” video that was prepared for potential use at the Final Fairness hearing. That professionally prepared video showed firsthand the devastating effects of multiple head trauma in the daily lives of these former players. My partners also assisted with some of these tasks, which formed part of the coordinated communications and media plan. (Doc. No. 7151-8 at 6). Turner’s selection as Subclass Representative and the co-extensive responsibilities taken on by Podhurst in its work for the common benefit were significant changes in circumstance that impact the reasonableness of the overall fee agreement. The impact of these changes will be addressed below in our discussion of the substantiality of the contribution by Podhurst as an IRPA. (c) Termination of the CFA Podhurst’s expected role was further reduced when their contract was terminated before the litigation was completed. Podhurst urges us to conclude that all essential work was done before their fee agreement was terminated. We disagree. For the reasons set forth below, in our discussion of the work performed by Polsinelli, we conclude that the fact that Podhurst did not represent Turner during the claim submission process resulted in a reduction in their obligation to their client. (d) Conclusion Collectively, these are all significant changes of circumstance that we need to consider in our evaluation of the fee requested. These circumstances impact upon Turner’s individual representation more than the circumstances anticipated by the District Court in its Fee Cap opinion. We therefore need to make adjustments beyond those implemented through the cap itself. 43 JA9332 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed293 01/07/19 DatePage Filed:44 08/09/2019 of 93 3. The results obtained Having determined that we are dealing with a marked difference in circumstance from the time of the creation of the contract to the time of the execution – hastened by Podhurst’s termination – we look to the result obtained, the quality of the work performed and the substantiality of the efforts of Podhurst as IRPA. We first observe that on June 22, 2017, Turner’s Estate was Awarded a Monetary Award grid amount of $5 million, based on Turner’s ALS diagnosis at the age of 42. This is the highest amount payable under the Settlement Agreement. 4. The quality of the work performed The Parties both urge us to conclude that opposing counsel did not provide quality work for Turner: Polsinelli argues Podhurst’s IRPA work was merely de minimus; and Podhurst argues that “the contingency was met,” as there was no work left to perform after their termination. As is discussed in detail below, Podhurst provided quality work for Turner, performing many necessary tasks in this litigation. Polsinelli provided quality work as well. We accept the representations of both law firms that they maintained a quality relationship with Turner and the Estate, providing necessary individual support in navigating the legal complexities of the litigation. We suggest however that the question of “the quality of the work” does not standing alone assist our analysis. We accept that Podhurst performed at the highest level. The more important question here is to look at the substantiality of the work – that is to say what work did Podhurst do that had a substantial effect on achieving the result obtained. Polsinelli characterizes their efforts – not as Class Counsel but as an IRPA – as de minimus, not that it was lower quality, but that it did not make much difference in the ultimate outcome. We agree with Polsinelli that this is the right approach, but we disagree with their characterization of how substantial the work was. We 44 JA9333 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed294 01/07/19 DatePage Filed:45 08/09/2019 of 93 therefore lay out the quality work performed by both attorneys, to aid in our evaluation of the final factor in the McKenzie analysis. We turn to the work performed by Podhurst, which provided the necessary support to Turner early in this litigation. Podhurst represented Turner for more than four years – from before the MDL was formed through much of the appellate process. Podhurst has presented evidence that they: (a) performed extensive legal research in advance of the litigation; (b) filed the lawsuit against the NFL; (c) assembled and reviewed his medical records; (d) created a Day in the Life video for use in future litigation, (e) advised Turner on collateral litigation that might impact this case and attempted to obtain an in extremis deposition to preserve Turner’s testimony for future litigation; (f) supported Turner in his understanding of the negotiations and the Settlement Agreement; (g) assisted the family in obtaining a loan while they awaited payment of the Award; and (h) other personal matters. Although some work for Turner was co-extensive of work performed by Podhurst as Class Counsel, we reject Turner’s argument that all the work performed in that time was exclusively common benefit work for which Podhurst has already been paid. As detailed here, these were services that benefited Turner individually. (a) Legal research pre-MDL Podhurst has asserted that the pre-MDL work performed to research the legal bases necessary to file a successful lawsuit against the NFL should be compensated. We recognize the skill and quality of the legal work performed by Podhurst in this capacity. Indeed, that skill was the reason that Podhurst partner Stephen Rosenthal was a Co-Chair of the Legal and Briefing Committee. (Doc. No. 7151-8 at 4). While we accept that Turner benefited from this expertise, we recognize that the work was performed for all Podhurst’s clients and for the class at large. We consider this individual work, but we must prorate the value among these other Podhurst clients. 45 JA9334 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed295 01/07/19 DatePage Filed:46 08/09/2019 of 93 (b) Filing the lawsuit Podhurst was involved in this litigation early in the process when they filed a lawsuit in the Southern District of Florida on December 22, 2011. The firm then filed an amended complaint on January 20, 2012 that included Turner. This work was clearly undertaken for Turner’s benefit. Even considering that we need to divide the value among Podhurst’s clients, we consider this work in part applied to Turner individually. (c) Medical Records Podhurst obtained and reviewed Turner’s medical records. Although the medical records review in this case was less labor intensive than it might have been in other cases due to the clarity of the diagnosis, Podhurst was not entirely relieved of obligations to Turner. Prudent counsel would make certain to review and understand what is in the medical records as they could have some bearing upon the onset and progression of the disease process. The firm reports a meeting with several individuals including Dr. Cantu.24 We accept Podhurst’s representation that this meeting was about Turner’s individual case. Ultimately, it is clear that this work was performed for Turner’s individual benefit exclusively. We acknowledge that early in the litigation, it was unclear what details in the medical history would prove necessary for the litigation. We expect, as was done here, that prudent counsel would diligently pursue and review of these records as a part of Podhurst’s obligations to Turner in his individual capacity. Recognizing that the prior diagnosis reduced Podhurst’s obligations, 24 The Estate argues that this must be common benefit time as Dr. Cantu and the others at the meeting provided guidance on other global common benefit issues. We do not accept that to be that case. In his testimony before the District Court at the allocation hearing, Podhurst’s representative noted that Dr. Cantu treated Turner. SCM Response at 11-12. 46 JA9335 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed296 01/07/19 DatePage Filed:47 08/09/2019 of 93 we conclude that this was significant work performed on his behalf. (d) The Day in the Life Video Podhurst also created a Day in the Life video documenting Turner’s condition. Podhurst detailed the preparation of Day in the Life videos in their common benefit petition, submitting that this work was done for the class “for potential use at the Final Fairness hearing. . . . [as a] part of the coordinated communications and media plan.” (Doc. No. 7151-8 at 6). We recognize that these videos benefited the class. But this work also would have benefited Turner had this case proceeded independently from the class action. Recognizing the realities of Turner’s ALS diagnosis, prudent counsel would have wanted to preserve a demonstrative aid to show the jury a day in the life of the Turner’s family, so they could understand the day-to-day difficulties of his condition. The video served a dual purpose and we credit it as such. (e) The workers’ compensation litigation and in extremis deposition Similarly, Podhurst has urged us to include work they performed relating to the workers’ compensation case that Turner had pending during this litigation. As Podhurst explained at the evidentiary hearing, during the course of the firm’s representation of Turner, Podhurst advised Turner about pending workers’ compensation litigation that was occurring in another jurisdiction, specifically as it related to the pending claims against the NFL. N.T. 10/3/2018 at 59. This was important work. At the time there was no way to know that this litigation would resolve through settlement. It was important for Podhurst to ensure the testimony would not undercut legal positions in this litigation. This was clearly work for Turner’s individual benefit. In the workers compensation litigation, there was a pending deposition. Podhurst attempted to get an agreement with the NFL to use the already scheduled matter as an in extremis deposition to be used in this litigation. N.T. 10/3/2018 at 59. When those efforts failed, Podhurst 47 JA9336 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed297 01/07/19 DatePage Filed:48 08/09/2019 of 93 still participated in the deposition via telephone to assist Turner in participating in such a way as to assist the workers compensation claim, but not harm his position in the NFL litigation. N.T. 10/3/2018 at 61-62. We accept that this time is properly construed as an effort to support Turner’s case against the NFL. (f) Advice to Turner throughout the litigation We next address Podhurst’s argument that their interactions with Turner were extensively relating to this litigation in an individual capacity and should be considered as support for the IRPA claim.25 As is discussed above, due to Podhurst’s interaction with Turner in its role as Class Counsel given to the firm’s leadership position on various plaintiffs committees and the support that Turner received in his role of Subclass Representative, we conclude that Podhurst’s IRPA obligations relating to supporting Turner while negotiations and appeals were pending must be reduced. Where an attorney – be it Podhurst or another attorney acting for the common benefit – has already been paid for the work performed supporting Turner, we may not consider a duplication of that time or work on our review of an IRPA fee for reasonableness. (g) Loan agreement negotiation Podhurst also argues that they helped Turner when he was seeking a loan to advance funds for his family while he awaited the receipt of his Monetary Award. The issues with predatory lending practices are well-documented through this litigation and need not be discussed here. As was discussed at the hearing, however, Podhurst’s representation in this matter was not pro forma, 25 Specifically, Podhurst submitted 2.0 hours of time for a January 25, 2012 conference with Turner, a telephone conference for an unspecified time on May 5, 2012, telephone calls and emails for an unspecified time on June 9, 2013, 2.0 hours of time for a meeting with Turner on August 15, 2013, and a telephone call for an unspecified time on August 23, 2013. Marks testified that these time entries are only a small sample, stating that “there are hundreds of hours… not accounted for.” N.T. 10/18 at 107. 48 JA9337 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed298 01/07/19 DatePage Filed:49 08/09/2019 of 93 but rather they worked intensively in negotiating a fair lending agreement for Turner. N.T. 10/3/2018 at 50. We recognize, however, that Polsinelli also argues that they played an active role in negotiating the loan, arguing that Podhurst only “made the introduction” and Polsinelli handled the remaining negotiations. We have reviewed the time submitted by each law firm and the exhibits admitted at the hearing on this point. It is clear to us that both law firms assisted Turner in this process and the work cannot be solely credited to Podhurst or Polsinelli. We divide the work equally between the two firms. (h) Support in personal matters Podhurst reports services that relate to several personal matters that are properly characterized as IRPA work. Specially, Podhurst notes that they advised Turner with respect to matters relating to his ex-wife and regarding the NFL’s “Plan ’88” and a disability application. As to the communications about Turner’s ex-wife, the Estate argues that the time was for services provided to Turner’s ex-wife, as opposed to Turner himself. We disagree. Podhurst stated that the time submitted related to their efforts in advising Turner about his ex-wife’s requests. As to the completion of the disability form, the Estate is critical of the work because it is “administrative.” We disagree. Much like the workers’ compensation claim, the statements submitted on the form could have impacted Turner’s recovery in this litigation. Prudent counsel would have taken an interest in order to protect Turner’s individual award. See N.T. 10/3/2018 at 62. That said, we observe that very little time is reported to have been spent on these tasks. Other matters discussed here are more significant indicators of the nature and quality of the work performed by Podhurst. Podhurst has also presented us with evidence of several initial client meetings, which 49 JA9338 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed299 01/07/19 DatePage Filed:50 08/09/2019 of 93 occurred before the CFA was signed and other time relating to a dispute between Podhurst and another firm relating to Turner’s decision to sign on as a Podhurst client, instead of the other firm. We place little weight on these submissions. Work performed in persuading a client to sign with a law firm is not includable in our evaluation of quality work performed for the client’s benefit. Similarly, work related to a dispute between firms about representation is not work performed for the client’s benefit, but rather for the law firm’s benefit.26 (i) Remaining work Recognizing the quality work performed by Podhurst, we turn to the firm’s argument that all of the work that needed to be done had been done by the time that their contract was terminated. We disagree and conclude that Polsinelli provided quality legal representation to Turner, which was necessary in support of his claims. Polsinelli provided legal assistance to the Estate as they worked through the administrative process leading to the Award. The firm has provided us with a detailed accounting of their work completed after Podhurst’s representation was terminated. This includes: (1) registering Turner as a member of the class, (2) submitting the claim package to demonstrate entitlement for an Award, (3) working with Esquire Bank to ensure the loan was appropriately repaid, (4) working with Garretson Resolution Group on matters relating to the Medicare reimbursement, and (5) working with the Claims Administrator to obtain the payment of the Award to Turner for acting as Subclass Representative. These were not “mundane legal chores,” but rather quality work 26 Polsinelli urges us to disallow the time as it was performed before the fee agreement was signed. We reject the argument. If a law firm worked closely with a client in its first meeting – prior to the signing of an agreement – to obtain medical records, work history or other relevant information necessary to firm before they can file a lawsuit, that work should be includable even if the fee agreement was signed after the work was performed. 50 JA9339 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed300 01/07/19 DatePage Filed:51 08/09/2019 of 93 performed that advanced Turner’s individual interest. See McKenzie II, 823 F.2d at 47. (j) Conclusion Recognizing that both firms provided quality work that contributed to Turner obtaining his Monetary Award, we must evaluate on balance the degree to which the attorney’s efforts substantially contributed to the result obtained. 5. The substantiality of the work Three groups of attorneys contributed to the work necessary to obtain the Monetary Award in this case – Podhurst acting for Turner individually, Class Counsel (of which Podhurst was a significant actor), and Polsinelli. In reviewing the degree to which each substantially contributed to the result, we recognize that the District Court has already reduced the IRPA payments to account for Class Counsel’s substantial contribution through the application of the Fee Cap. However, there are several factors specific to this case that compel us to conclude that Class Counsel’s contribution or rather work done by Podhurst in its Class Counsel role, to this result was more substantial here given Turner’s role as Class Representative and including his willingness to put himself forward with Podhurst’s substantial support as the “face of the case.” N.T. 7/13/2018 at 51. Podhurst’s role in this regard together with Polsinelli’s meaningful work gives us comfort that Podhurst as IRPA is not entitled to the 22% cap as they have urged. As is discussed above, we generally expect there to be seven major categories of work for IRPAs who have supported their clients in this litigation. In no way is it expected that as IRPAs work will cover each of these categories. Rather, as we consider the substantiality of the IRPA efforts, we use them as check points, which may or may not have played a role in the SCM’s effort to maximize his award. So, we use it as a checklist of factors to consider and weigh on balance, the substantiality of the contribution of the IRPA to the Award obtained. 51 JA9340 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed301 01/07/19 DatePage Filed:52 08/09/2019 of 93 Looking at Podhurst’s work, it is clear they provided high quality services in this litigation, and that there were substantial risks at the time that Podhurst was engaged as counsel. Of our seven factors (see infra p. 24), Podhurst argues that they provided as an IRPA services relating to six of them. Polsinelli challenges this assertion in four ways. They argue that: (1) Podhurst’s IRPA-services relating to the medical records was insubstantial (factor 1); and (2) Podhurst’s support of Turner in his understanding of the negotiations that led to the Settlement Agreement was exclusively common benefit work, not IRPA work (factor 4); (3) Polsinelli’s work submitting the claim and processing the award was substantial (factor 5); (4) Polsinelli also provided necessary services in helping Turner obtain a loan (factor 6). We address these points in order. (a) Factor 1: Review of Medical Records Polsinelli first argues that the Turner’s early and clear diagnosis simplified the important medical issues here and we should discount Podhurst’s fee accordingly. We acknowledge that the diagnosis simplified the review of Turner’s medical records, as there was no requirement that Podhurst pursue other medical evidence, and ultimately the paperwork needed to submit the final claim was straightforward. But Podhurst argued that if the Settlement Agreement had not been reached and Turner’s case had to go to trial, they would have needed to document Turner’s condition, as his ability to testify was seriously compromised by the deterioration of his condition. As a result, the firm, acting reasonably, was obligated to take actions to preserve testimony and evidence – in the form of the Day in the Life video and the attempts to secure a deposition. Taking these circumstances as a whole, we consider only a modest reduction in Podhurst’s IRPA fee on this basis. 52 JA9341 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed302 01/07/19 DatePage Filed:53 08/09/2019 of 93 (b) Factor 4: support for individual clients for their understanding of the process and the available options Podhurst worked extensively with Turner and others as spokespeople for players but it did so primarily as Class Counsel – not as an IRPA, in this litigation. Without the support of Class Counsel, advice to Turner regarding public appearances and the potential impact on the litigation these tasks would have fallen upon the IRPA. Turner was advised extensively about the scope and nature of the settlement negotiations and the terms of the agreement in his role as Subclass Representative. If Turner had not been in that role, the obligation to provide that support would have fallen upon the IRPA. In that way, Class Counsel reduced the work that would have ordinarily been performed by Podhurst. We recognize that Podhurst performed some services that fall in this category. However, we conclude that this work was substantially performed as Class Counsel and Podhurst was already paid as such. (c) Factor 5: Shepherding the client through the claims process We next address Podhurst’s argument that Polsinelli’s work was insignificant, due to the existence of the Monetary Award Grid. First, we have discussed the quality work performed by Polsinelli, which went beyond the mere submission of paperwork. The law firm provided other substantial legal support to Turner in the final stages of this claim process. Secondly, we are reluctant to disallow payment for services in the Claims process merely because the SCM’s condition was previously known. Either way, the simplicity of this process does not result in the conclusion that Podhurst’s work was insubstantial, but it was Class Counsel, and not Podhurst as IRPA, who was responsible for the grid. (Doc. No. 6481-1 at 122). We accept that the work done 53 JA9342 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed303 01/07/19 DatePage Filed:54 08/09/2019 of 93 by Polsinelli contributed to the successful resolution of the claim process. We take this into account. (d) Factor 6: Support for clients seeking a loan Both Podhurst and Polsinelli have argued that they provided the necessary support to Turner in his efforts to obtain a loan while he awaited the issuance of his Monetary Award. As is addressed above, based on the arguments of counsel and the documents provided, we conclude that both law firms provided substantial support in this process. We therefore divide the credit for these services equally between the law firms. D. Conclusion Overall, we conclude that Podhurst’s IRPA contribution to the Award is insufficient to support its lien to the full 22%. The contribution of Class Counsel was more substantial in this individual litigation due to Turner’s status. The work performed by Polsinelli also provided a significant contribution in bringing the litigation to a close. Accordingly, we recommend that Podhurst receive 15½ % of the Monetary Award as its fee. The 15½ % fee must still be reduced by the 5% holdback currently applicable to all attorney fee Awards. Therefore, it is our recommendation that Podhurst receive 10½ % of the overall Award at this time. Whatever portion of the 5% holdback is ultimately released by the District Court, will be provided to Podhurst at that time. We recommend that the remaining funds be distributed to Turner promptly. IV. DISCUSSION OF PODHURST v. SMITH Podhurst seeks 22% of the Award issued to Smith. Smith challenges the Lien arguing (1) that a second fee contract signed by Chie Smith superseded the original contract signed by Steven Smith and precludes Podhurst from any IRPA fee, and (2) even if this argument fails, Podhurst did not perform any individual work here and is therefore not entitled to any fee as IRPA. Podhurst 54 JA9343 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed304 01/07/19 DatePage Filed:55 08/09/2019 of 93 argues that the original contract signed by Steven Smith is the binding contract, which remains unaltered, and the firm performed all of the work necessary to obtain the Award and are therefore entitled to the full 22% available under the Fee Cap. Before we can proceed with the McKenzie analysis, we consider the issues raised by the parties over which the CFA applies. We have reviewed the relevant fee agreements under the applicable law and conclude that the original fee contract was not superseded by the contract later signed by Chie Smith. We do nonetheless reject the Podhurst argument that the strict terms of the CFA control. Rather, we hold that we must assess the reasonableness of the fee in light of the five factors enumerated by the Third Circuit in McKenzie. We begin with a consideration of “the reasonableness of the contingent fee arrangement” at the time of the contact’s signing. McKenzie II, 823 F. 2d at 45, n. 1 and then determine whether the circumstances compel a different evaluation of the CFA at the time of its execution. We then look to the third, fourth and fifth McKenzie factors: “the results obtained, the quality of the work, and whether the attorneys efforts substantially contributed to the result.” McKenzie I, 750 F.2d at 101. Within our evaluation of the attorney’s overall performance we are aware of our obligation to distinguish work performed for Smith as an individual SCM from work performed for the class as a whole. To the extent the work performed by Podhurst was already compensated, in whole or in part, we cannot consider it as a part of our reasonableness evaluation of the IRPA fee sought by Podhurst. A. Facts and Procedural History Steven Smith signed a CFA with Podhurst on January 25, 2012. Under the terms of the agreement, he agreed to pay 40% of any recovery, plus an additional 5% for any appellate 55 JA9344 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed305 01/07/19 DatePage Filed:56 08/09/2019 of 93 proceeding. Payment was contingent on success in the litigation. At the time that Steven Smith signed his agreement with Podhurst he had already been diagnosed with ALS.27 On approximately February 3, 2012,28 Chie Smith signed a second CFA with Podhurst. The two agreements had the same financial terms, but the second CFA added the following: Some of the claims may be presented as a class action. If any claims are certified as a class action and successfully resolved through a settlement or final judgment, the attorneys’ fees and costs for those claims will be awarded by the Court or other tribunal. Such Court-awarded attorneys’ fees and costs shall override the terms of this contract concerning attorneys’ fees and costs with respect to those claims, and the client will not be responsible for the above-referenced 40% fee or additional 5% fee for any recovery on those claims. The client shall still be responsible for all attorney’s fees and costs applicable to any gross recovery for claims which are not certified as class action claims. (Doc. No. 7365-6 at 2). Smith asserts that these agreements should be treated as the operative agreement and it limits Podhurst’s fee to its common benefit award. Podhurst contends that this is not the case, and that this second agreement pertains only to Chie Smith’s consortium claim. As of the signing of these agreements, Podhurst had already filed a lawsuit against the NFL on behalf of 21 retired players. Jones, et al. v. NFL, 11-cv-24594 (S.D. Fla. filed on December 22, 2011). On January 31, 2012, the NFL’s motion for consolidation of the MDL was granted. (MDL No. 2323; Doc. No. 61). On February 3, 2012, the Jones complaint was amended to add both Steven Smith and Chie Smith (for loss of consortium), to 135 individuals as plaintiffs in that lawsuit. (ECF No. 11-24594 (S.D. Fla.); Doc. No. 24). Jones was among eleven additional cases 27 Smith was diagnosed in July 2002. 28 This second CFA is not dated. However, the document has a stamp at the top of the page that indicates that it was faxed on February 3, 2012. (Doc. No. 7365-6). We assume, as the Parties have, that it was signed on or about the February 3, 2012 date. 56 JA9345 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed306 01/07/19 DatePage Filed:57 08/09/2019 of 93 transferred on the MDL February 6, 2012. (MDL No. 2323, Doc. No. 63). In April of 2016,29 Chie Smith signed a third retainer agreement, on behalf of Steven Smith, with NastLaw, LLC (“Nast”), relating to work that Smith agreed to perform as Subclass Representative.30 Under that agreement, Nast agreed to represent Steven Smith jointly with Podhurst in his role as Subclass Representative, and Nast would be paid exclusively through the common benefit fee award. On July 19, 2016, three months after the Third Circuit had approved the Settlement Agreement, the Smiths, with Chie Smith acting on Steven Smith’s behalf through a Power of Attorney, terminated the fee agreements with Podhurst. She also stated that Steven no longer wished to serve as Subclass Representative. After the termination, the litigation of Smith’s claim under the Settlement Agreement continued. Catherina Watters, Esq. (“Watters”) agreed to assist them in registering and moving through the claim process pro bono.31 Watters is representing the Smiths in this fee dispute as well. On March 27, 2017, Watters entered her appearance for the Smiths. On the same date, Watters filed a notice of joinder in Turner’s Motion to Resolve Attorney Fee Dispute which (see infra pp. 28-29) asked the District Court to preclude Podhurst from The CFA was undated, but the Parties agreed that it was signed contemporaneously with Smith’s affidavit regarding his potential class representative status. That affidavit was signed on April 15, 2016. N.T. 11/16/2018 at 77. 29 30 Smith was never formally appointed as Subclass Representative. The paperwork was completed to ensure an individual was available to replace Kevin Turner, who had died while the matter remained pending on appeal, should a new Subclass Representative be needed. N.T. 10/24/2018 at 182. 31 The time entries provided by Watters reveal that she began working on the case on August 8, 2016. An engagement letter with local counsel, the Tucker Law Group, dated March 24, 2017 has been provided. SCM Statement of Dispute at Exhibit 5. 57 JA9346 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed307 01/07/19 DatePage Filed:58 08/09/2019 of 93 collecting any fees as an IRPA, given that they were also receiving fees as Class Counsel. (Doc. Nos. 7363 and 7365). Podhurst filed a Response to the Joinder on April 10, 2017 (Doc. No. 7465). On April 20, 2017, Smith filed a Reply. (Doc. No. 7524). On May 14, 2018, following the District Court’s Opinion relating to the Fee Cap, the District Court dismissed the Motion without prejudice to Smith’s right to file a Petition for Deviation raising the same issues, which they have now done. (Doc. No. 9984). On June 1, 2018, Smith filed the Petition seeking a downward departure from the 22% presumptive Fee Cap to 0%, arguing that Podhurst had already been compensated for any work performed for Smith by the common benefit fee they received. (Doc. No. 10037). On October 3, 2017, while those matters were pending in District Court, the Claims Administrator issued a Notice that the Lien that had been filed and provided Smith twenty days to consent to or dispute the Lien. On the same day, Watters advised the Claims Administrator of the Smith’s intention to dispute the Lien. On October 4, 2017, the Claims Administrator issued a Notice of Monetary Award Claim Determination to Smith. On June 11, 2018, upon conclusion of the common benefit fee litigation, the issuance of the District Court’s Fee Cap Opinion, and the issuance of the Attorney Lien and Deviation Rules, the Claims Administrator issued a Schedule of Document Submissions setting the deadlines for the pleadings that needed to be submitted to resolve the Lien Dispute. On July 11, 2018, pursuant to Lien Rule 14 (Doc. No. 9760 at 9),32 the Parties submitted their Statements of Dispute to the Claims Administrator. On August 7, 2018, pursuant to Lien Rule 15 (Doc. No. 9760 at 10), the Parties submitted their Response Memoranda. Both Parties then requested a hearing, which we granted. On July 24, 2018, with the consent of both Parties, having concluded that the arguments 32 The pleadings were filed under our original Lien Rules, not the Lien Rules as later amended. 58 JA9347 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed308 01/07/19 DatePage Filed:59 08/09/2019 of 93 in the Petition for Deviation were already before us in the pleadings filed in the Attorney Lien Litigation, we denied the Petition for Deviation as moot. (Doc. No. 10161). Pursuant to Lien Rule 17, the Record of Dispute was transferred to this Court. On October 24, 2018 and November 16, 2018, we held a bifurcated evidentiary hearing, allowing the admission of evidence and argument for both sides. B. Which CFA Applies The Smiths argue that the binding language in this case comes from the contract signed by Chie Smith on February 3, 2012, which clearly provides that Podhurst will not be entitled to a contingency fee if the case is resolved as a class action. They argue that it was always Chie Smith’s understanding that this language was contained in both agreements, and therefore, they would not now be responsible for any fee. Podhurst disputes this assertion, arguing that the two agreements were always distinct – one between the firm and Steven Smith and a second between the firm and Chie Smith for her consortium claim – and therefore the contract signed by Chie should have no bearing at all on this Court’s analysis of this Lien Claim based on the firm’s contract with Steven Smith. Further, Podhurst argues that the Smiths always understood these to be separate contracts, and that there was no confusion on the point. As we must interpret the language of contracts to determine to resolve this dispute we are urged by the parties to look to Florida law. Ultimately, however, we do not get to a choice of law question as we are dealing with a factual dispute, which we resolve in favor of Podhurst based upon the evidence presented at the hearing. In the first fee contract, the “undersigned client” referenced is Steven Smith. 33 (Doc. No. Chie Smith signed this agreement on Steven Smith’s behalf under her power of attorney. (Doc. No. 7365 at 4). 59 33 JA9348 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed309 01/07/19 DatePage Filed:60 08/09/2019 of 93 7365-1 at 2). In second fee contract, the “undersigned client” referenced is Chie Smith. Podhurst has argued that this is consistent with its position that the second fee contract was an agreement to pursue a loss of consortium claim for Chie Smith. Smith notes that the contract does not state that it is exclusively for the pursuit of a consortium claim and the language of the contract itself is not entirely clear. We acknowledge that the contract itself does not state that it is narrowly for the pursuit of a consortium claim. Rather it says that it is an agreement for representation in a lawsuit against the NFL for “injuries sustained while a player in the NFL.” (Doc. No. 7365-6 at 2). Of course, it was Steven, not Chie Smith, who incurred those injuries while a player. Podhurst has not provided an explanation for this discrepancy or the absence of specific language in the contract. Steven Marks, the Podhurst lawyer responsible for this litigation, did testify, however, that the firm did not automatically pursue consortium claims for most of their clients who were asymptomatic. However, in some instances, the claims were pursued. The first amended complaint in Jones, filed on behalf of symptomatic clients but before Podhurst signed a fee agreement with the Smiths, included consortium claims on behalf of some fifteen spouses. The second amended complaint added only Chie Smith to the list of spouses pursuing this claim. Smith argues that the two contracts were sufficiently unclear that she was confused about the language and that we should consider the ambiguities in our evaluation of the contracts. We are sympathetic to this argument, but conclude that the reference to Chie Smith as the signatory and the “undersigned client” makes it sufficiently clear that the sole purpose of the contract was for the pursuit of a derivative claim for Ms. Smith only. The timing of the contract’s signing and the firm’s pursuit of the consortium claim on Chie Smith’s behalf reinforce this conclusion. Further, the record demonstrates that Ms. Smith understood that these were distinct contracts. In 60 JA9349 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed310 01/07/19 DatePage Filed:61 08/09/2019 of 93 a July 16, 2016 email to Podhurst, Chie Smith wrote: “I also signed a separate document from Ricardo [Martinez-Cid]. This document is for “Spouse” vs the NFL as the derivative claimant.” (Doc. No. 7365-5 at 1). In the Joinder submitted in the District Court, the Smiths again indicated that the agreement signed on January 25, 2012, was signed for Steven Smith and the agreement with the February 3, 2012 was signed by Chie Smith “on her own behalf.” (Doc. No. 7365 at 4). Finally, Watters argues on behalf of Smith that Ms. Smith believed that the terms in the second contract were the same as the terms in the first and therefore superseded the first. This, Smith argues, was a fair assumption because the fee agreement signed by Steven Smith was difficult to read. We have reviewed copies of both contacts and acknowledge that the agreement signed by Steven Smith is somewhat difficult to read, but if examined carefully it can be read. (Doc. No. 7365-1 at 2). Further, a comparison of the agreements makes it clear that the relevant paragraph is an additional paragraph in the second contract only. We do not believe that any difficulty in reading the first contract could provide a sufficient basis to imply conditions in the second agreement should be read into the first. We reject this claim and conclude that the first fee agreement, signed by Steven Smith in January 2012, is the relevant fee contract for purposes of this litigation. The agreement signed by Chie Smith in February of 2012 controls any claim that Ms. Smith may have had as a Derivative Claimant.34 C. The Impact of the CFA Having determined that the first CFA signed by Steven Smith on January 25, 2012 is the 34 At the hearing, Podhurst stated that they were not pursuing any separate claim for fees against Ms. Smith’s 1% Derivative Claimant Award. N.T. 10/24/2018 at 8. (See Doc. No. 6481-1 at 4243(Article VII of the Settlement Agreement detailing Derivative Claimant Awards)). 61 JA9350 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed311 01/07/19 DatePage Filed:62 08/09/2019 of 93 proper agreement for us to consider, we review its particular terms. The Parties agree that the original contract was an agreement to pay 40% recovery of any monetary award, plus an additional 5% for any appellate proceeding. It is further agreed that Podhurst later reduced its contingency fee percentage to 25%, but that following the District Court’s presumptive Fee Cap Order, the firm accepts that the fee cannot exceed 22%. Lienholder’s Statement of Dispute at 14. Subject only to their argument that the second CFA applies, Smith argues that the 22% fee requested is “unreasonable,” because “time [Podhurst] spent on individual legal representation, if any, could only be de minimus, thus no separate individual additional fee should be awarded.” SCM’s Statement of Dispute at 3. We discuss the “reasonableness” of the total fee in detail below. Podhurst argues that they “should be awarded its full contractual fee because the contingency occurred.” Lienholder Statement of Dispute at 5. For the reasons set out in our discussion of CFA between Podhurst and Turner, we are unwilling to give credence to this concept. (See infra pp. 30-34). Whether the contract was fully completed or not, Podhurst is obliged to demonstrate that the fee they were seeking was “reasonable” under the standards articulated by the Third Circuit in McKenzie. We now turn to McKenzie. D. Applying McKenzie “reasonableness” Our inquiry begins “by scrutinizing the reasonableness of the contingent fee arrangement” at the time of the contract’s signing and comparing it to the circumstances at the time of execution. McKenzie II, 823 F.2d at 45 n.1. Recognizing that the District Court has already adjusted fee agreements through the Fee Cap to account for the changed circumstances that occurred over the course of this case, we must determine if there were other factors specific to this individual litigation that should be considered in our assessment of the reasonableness of the fee at the time of the contract’s execution. We will then review (1) the result in the case, (2) the quality of the 62 JA9351 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed312 01/07/19 DatePage Filed:63 08/09/2019 of 93 work performed by the attorneys, and (3) the substantiality of that contribution on the overall result. As is discussed in greater detail below, circumstances here, at the time of contracting and the time of execution, changed significantly, necessitating an adjustment to the fee beyond that contemplated within the District Court’s presumptive Fee Cap. In evaluating the remaining three prongs, we are satisfied that both Podhurst and Watters provided quality work and made substantial contributions to the ultimate Award received in this case. Considering the substantiality of Podhurst’s contribution as an IRPA, as reduced to account for the contributions of Class Counsel and Watters, we recommend that Podhurst receive a fee of 17%, which will be reduced by the amount of the 5% holdback that the District Court deems necessary. 1. The CFA at time of contracting Our inquiry begins “by scrutinizing the reasonableness of the contingent fee arrangement” at the time of the contract’s signing. McKenzie II, 823 F.2d at 45 n.1. Here, there are two primary factors that we must examine: (1) the legal challenges in the plaintiff’s pursuit of a monetary award and (2) the time-intensive nature of the litigation. Podhurst signed a fee agreement with Smith very early in this litigation, when consolidation as an MDL was likely, but not certain. The legal challenges to the litigation remained substantial, but there was a strong likelihood that much of the considerable time-intensive work that counsel were facing would be streamlined by the creation of the benefits of the MDL. (a) Filing before MDL consolidation Podhurst signed a CFA with Smith on January 25, 2012. This was arguably at the very end of what Professor Rubenstein described as Phase 1, but effectively in the earliest stages of Phase 2. On December 22, 2011, prior to signing the CFA with Smith, Podhurst filed their initial 63 JA9352 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed313 01/07/19 DatePage Filed:64 08/09/2019 of 93 complaint seeking damages against the NFL on behalf of 21 retired players. Although Smith was not signed as a client at this phase, it was this lawsuit that he eventually joined. Ultimately, however, the difference between the two dates has little impact. On both dates, consolidation into the MDL was virtually certain, considering the agreement of all relevant parties as to the joinder and the volume of cases that had been filed by that point. Podhurst urges us to conclude that the risks remained unchanged after the formation of the MDL, as the legal obstacles remained the same. As the firm argued, “we were looking at tremendous difficulty with respect to individual causation . . . for each individual player with their own history and medical history . . . plus . . . science of proving the concussions led to these [impairments].” N.T. 10/24/2018 at 38. We agree. But that is only part of the story. As is discussed in detail above (see infra pp. 36-37), the formation of the MDL committees allowed a central group to perform the work for the class, and relieved IRPAs from having to complete the work independently. This certainly benefited IRPAs. Podhurst has acknowledged as much. N.T. 10/24/2018 at 17. The amount of work necessary to carry the litigation to resolution must be a factor in assessing a fee agreement. No matter the odds of success, a case that will require more hours is necessarily riskier than a case that will be resolved with few hours consumed. The consolidation of these cases into an MDL necessarily spread out the volume of necessary work. This impacts the extent of the risk for the law firm.35 Despite the reduction of overall workload built into an MDL, we agree with Podhurst that before the Settlement Agreement was reached, the legal risks in this litigation were substantial. 35 Podhurst also provided services in its role on various Plaintiffs Committees for the MDL. But the firm has already been paid for that time and for the risk incurred in performing the work on a contingent basis. It is not properly considered as a risk attributable to their representation of Smith. 64 JA9353 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed314 01/07/19 DatePage Filed:65 08/09/2019 of 93 Consolidation, however, did not eliminate risk. Despite the opportunity to spread out the workload, there were still substantial risks for Smith. See (Doc. No. 9860 at 10 (describing this as a “a high-risk, long-odds litigation.”)). Furthermore, Podhurst’s work in drafting and filing a lawsuit against the NFL was a necessary part of this litigation when Smith retained the law firm. To participate in the MDL, Smith needed to be a party in a lawsuit, which could be transferred into the soon-to-be-created MDL. Podhurst took on that risk when they filed the necessary pleadings. (b) Pre-MDL work as IRPA work Podhurst lawyers, like other firms who were involved in the early filings in this litigation, spent months prior to the filing of their initial lawsuit researching the legal issues that would be faced in the litigation. N.T. 10/24/2012 at 42. This voluminous upfront work creates a collateral loss of opportunity, which is an appropriate and necessary consideration for lawyers when negotiating the terms of CFAs. When Podhurst entered into the CFA with Smith, the fee could reasonably be considered to compensate the firm for this upfront work, as well as future work. We consider this work as a factor in evaluating the reasonableness of the contract at its drafting, but recognize that, as discussed below, circumstances changed over time. (c) The clarity of Smith’s Diagnosis Smith was diagnosed with ALS in July of 2002, before this litigation began. To some degree the presence of that diagnosis reduced the complexity of the litigation for Podhurst at the time of contract signing. As a result, Podhurst’s obligations regarding Smith’s medical diagnosis were reduced. Podhurst was not obligated to secure additional neuropsychological or other evaluations for Smith, who was already under the care of doctors due to his prior diagnosis. Ultimately, under the Settlement Agreement, the ALS diagnosis and the number of years 65 JA9354 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed315 01/07/19 DatePage Filed:66 08/09/2019 of 93 that Smith played in the NFL were the only facts necessary to obtain an Award. But at the time of contract signing, the proof required for an Award was not known. In preparation of potential individual litigation, Podhurst obtained and reviewed approximately 150 pages of medical records obtained from Smith’s doctors. Podhurst Hearing Exhibits, Exhibit F. Additionally, the firm obtained a full history relating to Smith’s playing career and history of concussions. Podhurst Hearing Exhibits, Exhibit E. (d) Conclusion We do not challenge the reasonableness of the contract at the time of signing. The complexity of the litigation at this early stage is apparent as are the risks. The articulation of the factors known at the time of contracting demonstrate the significant change of circumstances during the term of the contract. 2. The CFA at time of execution – impact of changed circumstances The fee contract between Podhurst and Smith remained in place for more than four years, between January 25, 2012 and July 19, 2016. Between contract signing and the issuance of the fee award, the individual cases filed were consolidated into an MDL, and the litigation, broadly speaking, was resolved through a Class Action Settlement Agreement that relieved plaintiffs of their obligations relating to causation and resolved other significant legal obstacles that had existed at the outset. Further, this work anticipated in the CFA was accomplished by Class Counsel (including Podhurst), rather than Podhurst, working as an IRPA. Finally, Podhurst’s services were terminated before the completion of the contract, relieving the firm of the obligation of performing the tasks required to submit a claim through the administrative process set out in the Settlement 66 JA9355 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed316 01/07/19 DatePage Filed:67 08/09/2019 of 93 Agreement. (a) Payment for pre-MDL work Podhurst lawyers, like other firms who were involved in the early filings, spent months prior to filing researching the legal issues that would be faced in the litigation. N.T. 10/3/2018 at 28. Since this voluminous upfront work and collateral loss of opportunity is a consideration for lawyers when CFAs are drafted, we believe it is a necessary consideration for us as we evaluate the reasonableness of the contract at its signing. When Podhurst entered into the CFA with Smith, the fee could reasonably be considered to compensate the firm for this upfront work, as well as future work. We consider this work as a factor in evaluating the reasonableness of the contract at its drafting, but recognize that, as discussed within, circumstances changed over time. As with their representation of Turner, Podhurst reasonably anticipated that it would need to rely on its individually retained clients to obtain compensation for the extensive work it performed in advance of filing the complaints against the NFL. However, over the term of the contract, two things became clear: (1) that Podhurst and other law firms would be able to seek payment from what became the AFQSF to compensate them for this pre-MDL work and (2) Podhurst’s stable of individual clients grew, allowing them to benefit from economies of scale. Podhurst included this pre-MDL work as part of the firm’s request for common benefit fees, stating that the “firm began investigating the possibility of a suit against the NFL in the Summer of 2011, after receiving inquiries on behalf of several former players. After investigating the history of the NFL’s handling of the problem and researching the law applicable to potential claims and likely defenses, our firm make the commitment to devote the considerable resources of personnel, time, and funds that would be necessary to take on the goliath of the NFL on an issue of vital importance to its business.” (Doc. No. 7151-8 at 3). This time was not included in the 67 JA9356 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed317 01/07/19 DatePage Filed:68 08/09/2019 of 93 firm’s lodestar, as Class Counsel did not to include pre-MDL time in that calculation.36 However, we accept, as the District Court did when it allocated common benefit fees (see Doc. No. 10019), Podhurst’s own assertion that this was, at least in part, common benefit work, and we recognize that Podhurst received a 2.25 multiplier for the common benefit work they performed. This does not mean that at least some of this work did not also benefit Podhurst’s individual clients. We recognize that Smith benefited from his inclusion in this MDL prior to the establishment of the class. This individual work, however, was not performed exclusively for Smith, or any single client, but rather for all Podhurst’s clients. Recognizing the benefit of this expertise generated by the firm’s undertaking of this work, requires us to also consider economies of scale. At one point in this litigation, Podhurst represented 569 clients. (ECF No. 18-md-2323 (E.D.Pa.), Doc. No. 28 at 4). Although that number has reduced as the litigation has progressed, the fact of the matter is that Podhurst has benefited greatly from the economies of scale. Podhurst’s initial complaint, filed in late December 2011, was filed on behalf of 21 plaintiffs. (ECF No. 11cv-24594 (S.D.Fla.), Doc. No. 1). On February 3, 2012, the complaint was amended for a second time, adding both Steven Smith and Chie Smith, as well as others, increasing the number of plaintiffs to 135. (ECF No. 11-cv-24594 (S.D.Fla.), Doc. No. 14). The work researching, drafting and filing this lawsuit benefitted all of these clients and must be distributed between them. Only a portion of the weight of this work is fairly attributable to our reasonableness analysis of the fee agreement with Smith. 36 The MDL was established by the panel on January 31, 2012. 68 JA9357 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed318 01/07/19 DatePage Filed:69 08/09/2019 of 93 (b) Change due to Class Counsel’s work Through the Fee Cap, the District Court has already established that there was a significant change in circumstances largely attributable to Class Counsel’s contribution. Podhurst benefited from those changes of circumstance, as other firms did. But, in addition, the common benefit work altered Podhurst’s role in Smith’s case even with greater significance. We consider this as we examine whether a portion of Podhurst’s work performed for the common benefit is duplicative of work that would normally have been done by the IRPA. The nature of Podhurst’s role in working for the common benefit therefore results in a changed circumstance that must be considered in the evaluation of the reasonableness of the agreement at the time of its execution. Podhurst partner Steven Marks was Co-Chair of the Communications and Ethics Committee, which “developed a communications and media plan” for the class. In that role, Marks “worked along with an outside consultant which the PEC/PSC engaged on messaging, talking points, media strategies and OpEds to reinforce the significance of this litigation and the risks involved at all levels.” (Doc. No. 7151-8 at 5). In effectuating this strategy, Marks specifically noted the public work done by Chie Smith to help advance this strategy for the benefit of the Class. In the same Common Benefit Declaration, Marks identifies how the preparation of a Day in the Life video in several of the Podhurst cases provided advantage to the Class during the Fairness hearing. (Doc. No. 7151-8 at 6). Marks stated: “I also spearheaded identifying suitable players and in the preparation of the Day in the Life video that was prepared for potential use at the Final Fairness hearing. That professionally prepared video showed firsthand the devastating effects of multiple head trauma in the daily lives of these former players. My partners also assisted with some of these tasks, which formed part of the coordinated communications and media plan.” (Doc. 69 JA9358 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed319 01/07/19 DatePage Filed:70 08/09/2019 of 93 No. 7151-8 at 6). Undoubtedly, this work would have benefited Smith had this case proceeded independently from the class action. We accept Marks’ testimony that the Day in the Life video was shot in part because they were concerned that something could happen to Smith that would have rendered him unavailable and they wanted to preserve a demonstrative aid to show a day in the life of the Smith family to a jury so that they could understand the “pain and suffering” that was endured. N.T. 10/28/2018 at 89-96, 186. But as Marks himself explained, the video was also procured to benefit the class, and would be available for that purpose as well. (Doc. No. 7151-8 at 6). Smith notes that Podhurst’s common benefit time included work in “vetting the background and medical records of hundreds of former players to identify suitable class representatives. This task entailed investigating their backgrounds, interviewing family and friends, and conducting detailed research into their playing histories to make sure that they were adequate and proper class representatives.” (Doc. No. 7151-8 at 9). Smith argues that this work must have included a review of Smith’s records, as Smith was chosen as the alternate Subclass 2 representative after Turner’s death. Podhurst, however, disputes this point, explaining that Smith’s records were not thoroughly reviewed for this purpose as his condition was considered too advanced at the time the initial selection of Subclass Representative was made. N.T. 0/24/208 at 179-183. We accept Podhurst’s assertion that it did not perform a thorough review of Smith’s medical records in this vetting process, and therefore the time as was spent should not be divided between IRPA and Class Benefit work but should rather be considered IRPA work. (c) Termination of the CFA Podhurst’s expected role was further reduced when their contract was terminated before the litigation was completed. Podhurst urges us to conclude that all essential work was done before 70 JA9359 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed320 01/07/19 DatePage Filed:71 08/09/2019 of 93 their fee agreement was terminated. We disagree. For the reasons set forth below, in our discussion of the work performed by Watters, we conclude that the fact that Podhurst did not represent Smith during the claim submission process resulted in a reduction in their obligation to their client. (d) Conclusion Collectively, these are all significant changes of circumstance that we need to consider in our evaluation of the fee requested. These circumstances impact upon Smith’s individual representation more than the circumstances anticipated by the District Court in its Fee Cap opinion. We, therefore, need to make adjustments beyond those implemented through the cap itself. 3. The results obtained Having determined that we are dealing with a marked difference in circumstance from the time of the creation of the contract to the time of the execution – hastened by Podhurst’s termination – we look to the result obtained, the quality of the work performed and the substantiality of the efforts of Podhurst as IRPA. We first observe that on October 4, 2017, Smith received notice that he would be Awarded $5 million, based on Smith’s ALS diagnosis at the age of 37. This represents the highest amount payable under the Settlement Agreement. 4. The quality of the work performed The Parties both urge us to conclude that opposing counsel did not provide quality work for Smith: Watters argues Podhurst’s IRPA work was merely de minimus; and Podhurst argues that “the contingency was met,” as there was no work left to perform after their termination. As is discussed in detail below, Podhurst provided a high level of service to Smith, performing many 71 JA9360 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed321 01/07/19 DatePage Filed:72 08/09/2019 of 93 necessary tasks in this litigation. However, after Podhurst was terminated, significant work remained, which was competently undertaken by Watters. In evaluating the quality of work performed, we recognize the high level of service that Podhurst provided both to the class and to Smith individually. We suggest however that the question of “the quality of the work” does not standing alone assist our analysis. We accept that Podhurst performed at the highest level. The more important question here is to look at the substantiality of the work – that is to say what work did Podhurst do that had the most substantial effect on achieving the result obtained. Watters characterizes their efforts – not as Class Counsel but as an IRPA – as de minimus, not that it was lower quality, but that it did not make much difference in the ultimate outcome. We disagree. We therefore layout the quality work performed by both attorneys, to aid in our evaluation of the final factor in the McKenzie analysis. We turn to the work performed by Podhurst, which provided the necessary support to Smith early in this litigation. Podhurst represented Smith for more than four years – from before the MDL was formed through much of the appellate process. Podhurst has presented evidence that they: (a) performed extensive legal research in advance of the litigation; (b) filed the lawsuit against the NFL; (c) assembled and reviewed his medical records; (d) created a Day in the Life video for use in future litigation and attempted to obtain an in extremis deposition to preserve Smith’s testimony for future litigation, (e) advised Smith on collateral litigation that might impact this case; (f) supported Smith in his understanding of the negotiations and the Settlement Agreement; (g) assisted the family in obtaining a loan while they awaited payment of the Award; and (h) resolved other personal matters. Although some work for Smith was co-extensive of work performed by Podhurst as Class Counsel, we reject Smith’s argument that all the work performed was exclusively common benefit work for which Podhurst has already been paid. As detailed here, 72 JA9361 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed322 01/07/19 DatePage Filed:73 08/09/2019 of 93 these were services that benefited Smith individually. (a) Legal research pre-MDL Podhurst has asserted that the pre-MDL work performed to research the legal bases necessary to file a successful lawsuit against the NFL should be compensated. We recognize the skill and quality of the legal work performed by Podhurst in this capacity. Indeed, that skill was the reason that Podhurst partner Stephen Rosenthal was a Co-Chair of the Legal and Briefing Committee. (Doc. No. 7151-8 at 4). While we accept that Smith benefited from this expertise, we recognize that the work was performed for all Podhurst’s clients and for the class at large. We consider this individual work, but we must prorate the value among these other Podhurst clients. (b) Filing the lawsuit Podhurst was involved in this litigation early in the process when they filed a lawsuit in the Southern District of Florida on December 22, 2011. The firm then filed an amended complaint on February 8, 2012 that included Smith. Although this case was resolved as a Class Action and these initial filings were not ultimately required for the litigation, this work was performed for Smith’s benefit. Recognizing the need to divide the value among Podhurst’s clients, we consider this work applied to Smith individually. (c) Medical Records Podhurst obtained and reviewed Smith’s medical records.37 Although the medical records review in this case were less labor intensive than in other cases, due to the clarity of the diagnosis, Podhurst was not entirely relieved of obligations to Smith. As Marks explained, the medical 37 Smith argued that Podhurst had not obtained these records based on an affidavit from his doctor. However, Podhurst has provided these documents as an exhibit, so it is clear that the firm did obtain the records. 73 JA9362 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed323 01/07/19 DatePage Filed:74 08/09/2019 of 93 records obtained were voluminous due to Smith’s treatment history. N.T. 10/24/2018 at 117. We acknowledge that early in the litigation, it was unclear what details in the medical history would prove necessary for the litigation. We expect, as was done here, that prudent counsel would diligently pursue and review of these records as a part of Podhurst’s obligations to Smith in his individual capacity. (d) The Day in the Life Video and the in extremis deposition Podhurst also created a Day in the Life video documenting Smith’s condition. Podhurst explained that they obtained a Day in the Life video to preserve evidence of Smith’s condition to present to a jury if the opportunity later arose. N.T. 10/24/2018 at 91. As is discussed above, this work was also a part of the common benefit work that Podhurst presented to the District Court. (Doc. No. 7151-8 at 6). We recognize that these videos benefited the class. But recognizing the realities of Smith’s ALS diagnosis, prudent counsel would have wanted to preserve a demonstrative aid to show the jury a day in the life of the Smith family, so they could understand the day-to-day difficulties of his condition. The video served a dual purpose and we credit it as such. Similarly, Podhurst also attempted to obtain an in extremis deposition to ensure Smith’s testimony could be preserved. Ultimately, these efforts were unsuccessful, but we recognize it as an attempt to advance the interests of their individual client, should the matter proceed as an individual case at a future date. Again, this is the type of quality work that we would expect from prudent counsel in this litigation. We credit this as work performed for Smith’s individual case. (e) Other litigation During its representation of Smith, Podhurst was asked to review the Dryer litigation to assess if there was any possible collateral impact on this litigation. Dryer v. NFL was a class action 74 JA9363 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed324 01/07/19 DatePage Filed:75 08/09/2019 of 93 relating to publicity rights. Smith was a potential class member who needed to assess if he wished to participate or opt out of the litigation. See generally Podhurst Hearing Exhibits, Exhibit D (documenting the materials reviewed). Although Podhurst did not represent Smith in that matter, the firm reviewed the litigation to ensure Smith’s decisions in that matter did not jeopardize his claims in this litigation against the NFL. N.T. 10/24/2018 at 122. We characterize this, partially at least, as IRPA work. (f) Advice to Smith throughout the litigation Podhurst advised Smith about the status of the negotiations and appeals throughout this litigation. Unlike Turner, who was extensively advised due to his status as Subclass Representative, which spanned much of the litigation, Smith was primarily advised of the status of the proceeding in the ordinary course, as were other individuals who ultimately became the Class Members in this litigation. We recognize that Smith did agree to become a Subclass Representative, when Turner was no longer able to perform the role. Smith took on that responsibility in April of 2016, and although he was never formally appointed Subclass Representative, he was advised as such at that point in the litigation. Where an attorney – be it Podhurst or another attorney acting for the common benefit – has already been paid for the work performed supporting Smith, we may not consider a duplication of that time or work on our review of an IRPA fee for reasonableness. Ultimately, however, this support provided by Class Counsel was less extensive than we discussed with Turner. By April of 2016, the Settlement Agreement had already been signed and the appeals had been briefed and argued. Indeed, the Third Circuit’s opinion affirming the District Court’s approval of the Settlement was decided in April 2016, which made it almost certain that Smith would not need to step in as Subclass Representative. We, therefore, recognize that almost all of 75 JA9364 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed325 01/07/19 DatePage Filed:76 08/09/2019 of 93 the support Smith received in understanding the litigation was provided by Podhurst, in their role as IRPA, not Class Counsel. (g) Loan agreement negotiation Podhurst also argues that they helped Smith when he was seeking a loan to advance funds for his family while he awaited the receipt of his Monetary Award. The issues with predatory lending practices are well documented through this litigation and need not be discussed here. Smith argues that all of the work negotiating the loan was performed by Co-Lead Class Counsel, and not Podhurst. We disagree. While co-lead Class Counsel may have had a role, Podhurst’s representation in this matter was not pro forma. They have demonstrated that they worked intensively in negotiating a fair lending agreement for Smith. See generally Podhurst Hearing Exhibits, Exhibit B (documenting the work done in negotiating the loan); N.T. 10/24/2018 at 9899. (h) Support in personal matters Finally, Podhurst reports services that relate to several personal matters for Smith that were not directly related to this litigation – advice relating to copyright on a book and referral for a Trust Attorney. We conclude that there may be some challenges as to whether this is proper IRPA work, and that these efforts were not substantial as conceded by Podhurst at the hearing. (i) Remaining work Recognizing the quality work performed by Podhurst, we turn to the firm’s argument that all of the work that needed to be done, had been completed by the time that their contract was terminated. We disagree and conclude that Watters provided quality legal representation to Smith, which was necessary in support of his claims. Watters provided legal assistance to Smith as he worked through the administrative process 76 JA9365 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed326 01/07/19 DatePage Filed:77 08/09/2019 of 93 leading to the Award. Watters provided us with a detailed accounting of the work completed after Podhurst’s representation was terminated. This includes: (1) registering Smith as a member of the class, (2) submitting the claim package to demonstrate entitlement for an Award, (3) preparing Chie Smith, acting on behalf of Steven Smith, for certain interviews with news agencies, (4) assisting the Smiths in the resolution of an issue relating to a Power of Attorney; (5) ensuring that loans against the Award were properly repaid,38 (6) ensuring that various liens were resolved, and (7) managing the distribution of the Monetary Award. These were not “mundane legal chores,” but rather quality work performed that advanced Smith’s individual interest. See McKenzie II, 823 F.2d at 47. In defining the role of the IRPA, the District Court noted the need for IRPAs to assist their individual clients through this claim process. Although the medical diagnosis in this case was straightforward, issues relating to the liens and transfers of funds were not. These supports are clearly quality work that advanced Smith’s individual interest and aided him in receiving the Award. (j) Conclusion Recognizing that both Podhurst and Watters provided quality work that contributed to Smith obtaining his Monetary Award, we must evaluate on balance the degree to which the attorney’s efforts substantially contributed to the result obtained. 5. The substantiality of the work Three groups of attorneys contributed to the work necessary to obtain the Monetary Award 38 Watters worked with Esquire Bank to resolve issues relating to the loan negotiated by Podhurst. Specifically, the original loan contained a prohibited assignment, and a renegotiation was necessary to obtain the funds and resolve the lien. N.T. 11/6/2018 at 45. 77 JA9366 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed327 01/07/19 DatePage Filed:78 08/09/2019 of 93 in this case – Podhurst acting for Smith individually, Class Counsel (of which Podhurst was a significant actor), and Watters. In reviewing the degree to which each substantially contributed to the result, we recognize that the District Court has already reduced the IRPA payments to account for Class Counsel’s substantial contribution through the application of the Fee Cap. However, there are several factors specific to this case that compel us to conclude that Class Counsel’s contribution or rather work done by Podhurst in its Class Counsel role to this result was somewhat more substantial here. Further, substantial work was performed by pro bono counsel, which must to be factored into our analysis of the fee to be distributed to Podhurst. As is discussed above, we generally expect there to be seven major categories of work for IRPAs who have supported their clients in this litigation. In no way is it expected that as IRPAs work will cover each of these categories. Rather, as we consider the substantiality of the IRPA’s efforts, we use them as check points, which may or may not have played a role in the SCM’s effort to maximize his award. So, we use it as a checklist of factors to consider and weigh on balance, the substantiality of the contribution of the IRPA to the Award obtained. Looking at Podhurst’s work, it is clear that they provided substantial, high quality services in this litigation, and that there were substantial risks at the time that Podhurst was engaged as counsel. Of our seven factors (see infra p. 24), Podhurst argues that they provided as an IRPA services relating to six of them. Smith challenges this assertion in four ways. He argues: (1) Podhurst’s IRPA-services relating to the medical records were insubstantial (factor 1); and (2) Podhurst’s support of Turner in his understanding of the negotiations that led to the Settlement Agreement was exclusively common benefit work, not IRPA work (factor 4); (3) Watters’ work submitting the claim and processing the award was substantial (factor 5); and (4) Class Counsel, not Podhurst, negotiated the loan (factor 6). We address these points in order. 78 JA9367 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed328 01/07/19 DatePage Filed:79 08/09/2019 of 93 (a) Factor 1: Review of Medical Records Watters first argues that the Smith’s early and clear diagnosis simplified the important medical issues here and that we should discount Podhurst’s fee accordingly. We acknowledge that the diagnosis simplified the review of Smith’s medical records, as there was no requirement that Podhurst pursue other medical evidence, and ultimately the paperwork needed to submit the final claim was straightforward. But Podhurst argued that if the Settlement Agreement had not been reached and Smith’s case had to go to trial, they would have needed to document Smith’s condition, as his ability to testify was seriously compromised by the deterioration of his condition. As a result, the firm, acting reasonably, was obligated to take actions to preserve testimony and evidence – in the form of the Day in the Life video and the attempts to secure a deposition. Taking these circumstances as a whole, we consider only a modest reduction in Podhurst’s IRPA fee on this basis. (b) Factor 4: support for individual clients for their understanding of the process and the available options Watters argues that the “only conversations with Podhurst involved Steven Smith’s involvement in the common benefit case.” SCM’s Statement of Dispute at 5. We disagree. Smith acknowledges that he received emails throughout the negotiations and appellate process about the status of the case. Id. We acknowledge that many of these emails were distributed among the firm’s many clients and that some discount for the apparent economies of scale is necessary. At the same time, we are also aware that Smith did with some regularity receive advice as to the status of his individual case. We recognize that for a brief period of time, Smith was being advised by Class Counsel about the status of the proceedings, due to his role as Subclass Representative. In that time period, 79 JA9368 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed329 01/07/19 DatePage Filed:80 08/09/2019 of 93 Class Counsel reduced the work that would have ordinarily been performed by Podhurst. Therefore, a small reduction to account for this support by Class Counsel is necessary. (c) Factor 5: Shepherding the client through the claims process We next address Podhurst’s argument that Watters’ work was insignificant, due to the existence of the Monetary Award Grid. First, we have discussed the quality work performed by Watters, which went beyond the mere submission of paperwork. Watters provided substantial legal support to Smith in the final stages of this claim process. Second, we are reluctant to disallow payment for services in the Claims process merely because the SCM’s condition was previously known. Either way, the simplicity of this process does not result in the conclusion that Podhurst’s work was insubstantial, but it was Class Counsel, and not Podhurst as IRPA, who was responsible for the grid. (Doc. No. 6481-1 at 122). We accept that the work done by Watters contributed to the successful resolution of the claim process. We take this into account. (d) Factor 6: Support for clients seeking a loan Smith argues that Podhurst did not assist him in obtaining a loan, but rather the loan was secured by Class Counsel. Podhurst has argued that the firm “negotiated with lenders over the course of several months to obtain a substantial loan for the Smiths.” Lienholder’s Response at 7. Podhurst has provided evidence documenting these negotiations. Lienholder Response Memorandum, Exhibit A. We conclude that these materials demonstrate that Podhurst’s work in negotiating the loan provided a substantial benefit to Smith. We recognize, however, Watters’ argument – unchallenged by Podhurst – that she was obligated to work with Esquire Bank to renegotiate the loan agreement, because the agreement contained language which provided that Smith was assigning his interest in the Award to the lender, which was prohibited under the Settlement Agreement. SCM’s Statement of Dispute at 80 JA9369 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed330 01/07/19 DatePage Filed:81 08/09/2019 of 93 125. As such, the terms of the loan had to be renegotiated before it could be paid out. We therefore must recognize the work provided by both Podhurst and Watters relating to this factor. E. Conclusion Overall, we conclude that Podhurst’s IRPA contribution to the Award is insufficient to support its lien to the full 22%. This was primarily because of the work that was performed by Watters supporting Smith in the claim submission process. We note, however, that the contribution of Class Counsel was slightly more substantial in this individual litigation. Accordingly, we recommend that Podhurst receive 17% of the Monetary Award as its fee. The 17% fee must still be reduced by the 5% holdback currently applicable to all attorney fee Awards. Therefore, it is our recommendation that Podhurst receive 12% of the overall Award at this time. Whatever portion of the 5% holdback is ultimately released by the District Court, will be provided to Podhurst at that time. We recommend that the remaining funds be distributed to Smith promptly. V. DISCUSSION OF CMDA v. JOHNSON CMDA has filed a Lien seeking 20% of the Award issued to Johnson, plus $2,617.20 in costs. Johnson has not filed formal pleadings in response. However, he challenges the Lien and has states that he believes CMDA is not entitled to any fees for the services performed. Lienholder’s Statement of Dispute, Exhibit F. Johnson’s decision not to provide us with pleadings or any other informed statement to support his position (see Lien Rule 15) has hampered on our resolution of this dispute. We do have submissions from CMDA as is appropriate, particularly whereas it is their burden to prove the fees requested are reasonable. We have determined that the record before us is sufficiently clear to allow us to resolve the Dispute. As is discussed below, the costs asserted by CMDA are untimely asserted and are therefore 81 JA9370 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed331 01/07/19 DatePage Filed:82 08/09/2019 of 93 rejected. As to the attorneys’ fees, we begin with a consideration of “the reasonableness of the contingent fee arrangement” at the time of the contact’s signing. McKenzie II, 823 F. 2d at 45, n.1 and then determine whether the circumstances compel a different evaluation of the CFA at the time of its execution. We then look to the third, fourth and fifth McKenzie factors: “the results obtained, the quality of the work, and whether the attorneys efforts substantially contributed to the result.” McKenzie I, 750 F.2d at 101. A. Facts and Procedural History Johnson signed a CFA with CMDA on September 21, 2015. Johnson retained CMDA for the narrow purpose of pursuing a claim through the NFL concussion class action settlement. Under the terms of the agreement, Johnson agreed to pay CMDA 20% of the amount recovered, contingent on the recovery of an Award from the settlement. As is clear from the language of the fee agreement, as of the time of contract signing, the final approval of the Settlement Agreement had been granted by the District Court, but the Third Circuit appeals were still pending. Unlike the CFAs in Turner and Smith, the contract here was specifically limited to be for services in pursuit of a claim under the agreement, as opposed to pursuit of a separate lawsuit against the NFL. In pursuing an award under the Settlement Agreement, CMDA assisted Johnson with identifying and retaining the services of two doctors: Dr. Charles Seigerman, a neuropsychologist/psychologist and Dr. Steven Schechter, a neurologist. Dr. Schechter provided the Alzheimer’s diagnosis that provided the basis for the Monetary Award in this case. The firm also reviewed Johnson’s medical records and consulted with these doctors. According to billing records provided by CMDA as a part of our Lien process, the firm prepared the claims package for the Claims Administrator while the appeals of the District Court’s 82 JA9371 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed332 01/07/19 DatePage Filed:83 08/09/2019 of 93 approval of the Settlement Agreement were pending. That claim package included the necessary medical records, a Qualifying Diagnosis Physician Certification from Dr. Schechter, and a HIPAA authorization. On February 6, 2017, after the appeals were concluded and the Settlement Agreement became final, the six-month period to register as a class member opened. Two days later, on February 8, 2017, Johnson notified CMDA of his decision to terminate their representation. He requested that the firm forward his complete case file. On February 16, 2017, CMDA did so and advised Johnson that his claim had not yet been filed with the Claims Administrator. On April 10, 2017, Johnson, acting pro se filed his own claim package with the Claims Administrator. On December 1, 2017, the Claims Administrator issued a Monetary Award Notice. On January 2, 2018, the NFL appealed the determination to the Special Master. Johnson did not submit any additional pleadings in relation to the appeal. On April 2, 2018, however, the Claims Administrator issued a Post-Appeal Notice of Monetary Award, reaffirming the Award. CMDA filed a Lien against Johnson’s Award on April 5, 2017. (Doc. No. 7450). In the Petition for Lien, CMDA provided a copy of the fee agreement and noted the relevant terms but did not indicate what, if any, of costs that they were seeking. On November 7, 2017, pursuant to Lien Rule 8(d), the Claims Administrator issued a Notice of Lien to Johnson and CMDA, which indicated that the Lien amount was 20% of any Monetary Award. There was no reference to costs in the Notice of Lien, as no costs had been asserted in the original Lien filing. Pursuant to Lien Rule 10, when Johnson failed to respond to the Notice of Lien, the Claims Administrator withheld full amount of the Lien, 20% of the Monetary Award, and issued a Notice of Duty to Resolve the Lien to the Parties and referred the matter to us. Pursuant to Lien Rule 16 on July 2, 2018, the Claims Administrator issued a Schedule of Document Submissions to the 83 JA9372 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed333 01/07/19 DatePage Filed:84 08/09/2019 of 93 Parties. CMDA and Johnson were advised that each were obligated to submit a Statement of Dispute by August 1, 2018. CMDA’s Statement of Dispute was timely submitted. Johnson, however, did not meet the deadline. Because of his pro se status, we granted him a two-week extension of this deadline and directed the Claims Administrator to contact him to ensure he understood the nature of the process and his rights to file a Statement of Dispute, presenting the facts and circumstances of this matter as he understood them. Johnson advised the Claims Administrator that he did not wish to submit materials. After the record was transferred to this Court, we initiated a telephone conference with the Parties to advise them of the availability of a Magistrate Judge for a Settlement Conference, if the Parties believed such a conference would be an aid. On the call, Johnson made it clear that he did not want to participate in this litigation, but he still disputes the fee asserted by CMDA. B. CMDA’s untimely request for costs In its Statement of Dispute, CMDA indicates that they are seeking a 20% contingency fee, as well as costs in the amount of $2,617.20 for work performed on behalf of Johnson. We deny CMDA’s request for costs, as the firm failed to provide prompt notice of these costs as associated with their Lien. To present a valid Lien for costs in this litigation, counsel are required to provide the Claims Administrator with “[t]he dollar amount of the attorney’s costs if the attorney is seeking reimbursement of costs in addition to fees.” Lien Rule 8(a)(5). The precise dollar amount, as well as the other requirements in Lien Rule 8(a) must be submitted to the Claims Administrator “before it begins processing the Award.” Lien Rule 8(c). This requirement of notice to the Claims Administrator serves an important purpose. Once 84 JA9373 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed334 01/07/19 DatePage Filed:85 08/09/2019 of 93 a SCM is issued an Award, the Claims Administrator is obligated to “withhold an appropriate amount sufficient to pay the Attorney’s Lien.” Lien Rule 10. Strict enforcement of these rules is necessary to ensure the Claims Administrator can promptly distribute Monetary Awards to SCMs. If the dollar amount of a Lienholder’s costs has not been presented to the Claims Administrator, the amount of the costs will be released to the SCM prematurely. We would be loath to require a SCM to return a portion of their Award to pay a Lienholder’s costs when that Lienholder had notice and opportunity, indeed an obligation, to inform the Court of the costs incurred prior to the payment to the SCM. We acknowledge that the Lien Rules were not adopted by the Court until March 6, 2018, which was after the initial Lien was filed in this case. But notice of these Lien Rules was provided to the Parties, both through their filing on the ECF Docket and through information contained on the NFL Concussion Website. Our Lien Rule requiring timely assertion of costs has already been the subject of two Orders to Show Cause, which were also filed on the docket. (Doc. Nos. 10151 and 10156). Despite this, CMDA’s requested costs are stated for the first time in CMDA’s Statement of Dispute filed on July 27, 2018. The assertion is made without any reference to the timeliness of their submission and without any explanation provided for the delay. Given the CMDA’s failure to provide timely notice of costs and failure to explain the significant omission, we conclude that the asserted costs must be disallowed. C. Applying McKenzie “reasonableness” Having established that there is a valid CFA in place and that we are obligated to review the fee under the McKenzie factors, we turn to this analysis. Our inquiry begins “by scrutinizing the reasonableness of the contingent fee arrangement” at the time of the contract’s signing and 85 JA9374 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed335 01/07/19 DatePage Filed:86 08/09/2019 of 93 comparing it to the circumstances at the time of execution. McKenzie II, 823 F.2d at 45 n.1. Recognizing that the District Court has already adjusted fee agreements through the Fee Cap to account for the changed circumstances that occurred generally over the course of this litigation, we must determine if there were other factors specific to this individual litigation that should be considered in our assessment of the reasonableness of the fee at the time of the contract’s execution. We will then review (1) the result in the case, (2) the quality of the work performed by the attorneys, and (3) the substantiality of that contribution on the overall result. As is discussed in greater detail below, considering the substantiality of CMDA’s contribution, we recommend that CMDA receive a fee of 7½ %, which will be reduced by the amount of the 5% holdback that the District Court deems necessary. 1. The CFA at time of contracting Our inquiry begins “by scrutinizing the reasonableness of the contingent fee arrangement” at the time of contracting. McKenzie II, 823 F.2d at 45 n.1. Here, there are two primary factors that we must examine: (1) the legal challenges in the plaintiff’s pursuit of a monetary award and (2) the time-intensive nature of the litigation. CMDA and Johnson entered into the fee agreement on September 21, 2015, five months after the District Court approved the Settlement Agreement. This was what Professor Rubenstein characterized as “Phase 3” of the litigation. It was clear at this stage that IRPAs would be primarily responsible for “processing clients’ claims through the claims facility.” (Doc. No. 9526 at 26). CMDA bore the risk that Johnson’s claim might not have yielded a Monetary Award. But the fee agreement is not an engagement to file a lawsuit against the NFL, but rather exclusively to submit a claim through the already established NFL Class Action Settlement. As to the legal challenges like causation and preemption, CMDA did not carry any of that 86 JA9375 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed336 01/07/19 DatePage Filed:87 08/09/2019 of 93 risk. Those issues had already been resolved through the Settlement Agreement. Although the District Court’s approval of the Settlement was still being reviewed on appeal, CMDA did not undertake any obligation of the litigation of matters beyond pursuit of a claim through the Settlement. There did, however, remain some risk in this litigation. Johnson was not diagnosed with Alzheimer’s when he engaged CMDA. CMDA undertook the responsibility to get Johnson to appropriate medical professionals and to shepherd Johnson through the process of diagnosis, as well as claim submission. This process required evaluation by two different doctors and the obtaining of sufficient documentation to support a claim to be submitted under the Settlement Agreement. We accept that this work was performed with an eye toward the submission of the paperwork necessary to submit a claim and litigate any necessary appeals. But the firm’s services were terminated before the second part of the work was needed. 2. The CFA at time of execution – impact of changed circumstances The fee contract between CMDA and Johnson remained in place for only 18 months, between September 21, 2015 and February 8, 2017. At the time of initial contract signing, there was still a chance that the District Court’s approval of the Settlement Agreement would be rejected on appeal. The risks related to that possibility dropped on April 18, 2016, when the Third Circuit affirmed the District Court’s decision.39 CMDA’s expected role was reduced when their contract was terminated before the claim As we explained above, CMDA’s risk relating to this was contained somewhat by the fact that they had not taken on the obligation of pursuing a lawsuit, but rather were only obligated to pursue a claim under the agreement. If there was no agreement, they would have lost the opportunity to pursue an Award, but they were not also obligated under the fee agreement to spend significantly increased time in pursuing a claim through other means. 39 87 JA9376 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed337 01/07/19 DatePage Filed:88 08/09/2019 of 93 submission process began. The fact that Johnson performed these tasks on his own reduced the work that was required of CMDA as had been contemplated by the original CFA. 3. The results obtained Having determined that there was a difference in circumstance between the time of the creation of the contract to the time of its execution – hastened by CMDA’s termination – we look to the result obtained, the quality of the work performed and the substantiality of the efforts of CMDA as IRPA. We first observe that on April 2, 2018, Johnson was Awarded a Monetary Award Grid Amount of $752,000, based on Johnson’s Alzheimer’s diagnosis at the age of 65. 4. The quality of the work performed In evaluating the quality of work performed, we recognize the nature of the work performed by CMDA in pursuit of Johnson’s award. The District Court has concluded that the process of “shepherding . . . clients through the claims process” is a factor in our reasonableness evaluation. CMDA guided Johnson through a portion of the claims process, in helping him to identify the appropriate doctors to see that the proper paperwork was completed to ensure the documentation of the diagnosis. However, CMDA, itself noted the limited scope of the work when they expressed to Johnson to limited scope of the law firm’s case file, which consisted only of emails and letters between attorney and client and the reports from Doctors Schechter and Seigeman. Ultimately, we recognize that this was important work performed to advance Johnson’s claim. Johnson did not have a pre-existing diagnosis when he retained CMDA. Rather the firm guided Johnson through the significant process of obtaining the necessary diagnosis. That was the full scope of the work performed by CMDA. Because the attorney-client relationship was terminated, CMDA was not obligated to create the claims package for submission to the Claims Administrator and it was not obligated to support Johnson in his defense against the 88 JA9377 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed338 01/07/19 DatePage Filed:89 08/09/2019 of 93 NFL on the administrative appeal that was submitted. These were also important steps in the process that were handled by Johnson acting pro se. 5. The substantiality of the work Three groups contributed to the work necessary to obtain the Monetary Award in this case – Class Counsel, CMDA and Johnson, himself. In reviewing the degree to which each substantially contributed to the result, we recognize that the District Court has already reduced the IRPA payments to account for Class Counsel’s substantial contribution through the application of the Fee Cap. Indeed, CMDA’s own decision to provide the firm’s services for a 20% contingency fee, is reflective of their understanding of the reduction of the risk for them. However, CMDA’s services were terminated while there was still work to be done to ensure the claim was fully processed, and there are factors specific to this case that compel us to conclude that Class Counsel’s contribution to this result was more substantial here than in other cases. As is discussed above, we generally expect there to be as many as seven major categories of work for IRPAs who have supported their clients in this litigation (see infra p. 24). In no way is it expected that as IRPAs work will cover each of these categories. Rather as we consider substantiality of the IRPA efforts we use them as check points which may or may not have played a role in the success, or not, in the SCM’s effort to maximize his award. So, we use it as a checklist of factors to consider and weigh on balance, the substantiality of the contribution of the IRPA to the Award obtained. Because CMDA was not engaged until after the settlement was already approved, many of the obligations that are generally placed on IRPAs are not present here. CMDA undertook minimal risk due to the scope of the representation. In reviewing our seven factors, CMDA has provided 89 JA9378 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed339 01/07/19 DatePage Filed:90 08/09/2019 of 93 evidence exclusively related to (1) review of medical records and support in obtaining Johnson’s diagnosis (factor 1) and (2) shepherding Johnson through the claims process (factor 6). (a) CMDA did not provide any services in support of factors 2, 3, 6 or 7 The CFA between Johnson and CMDA was for a narrow set of circumstances – pursuing a claim through the NFL concussion class action settlement. As is noted above, this type of contract carried limited risk. CMDA undertook no obligation as related to evidentiary support for any potential lawsuit (factor 2). In reviewing the billing entries provided by CMDA, we can discern no indication that the firm was obligated the review any collateral litigation on Johnson’s behalf to ensure his claims would not be negatively impacted (factor 3). Indeed, the Settlement Agreement was carefully constructed to avoid those types of pitfalls. Since CMDA did not represent Johnson before the approval of the agreement, these were not likely concerns for the firm. Similarly, CMDA has not argued that they had to provide Johnson with any support on personal matters, including loan agreements (factors 6 and 7). The nature and scope of these types of services are well represented in the discussions of Turner and Smith in this case. It is significant that CMDA was not required to take on any of these obligations. We do, however, give CDMA credit for assistance in Factor 1 and 4, and nominally in Factor 5. (b) Factor 1: Review of medical records and support in obtaining medical evaluations CMDA has not presented any evidence that they searched through pre-existing medical records. Instead, the firm was, however, fully engaged with the process of obtaining a prompt and complete evaluation that would provide a sufficient basis to support a claim when the claims submission process opened. This was an important service, but on the record before us, it was the primary work performed by the law firm. 90 JA9379 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed340 01/07/19 DatePage Filed:91 08/09/2019 of 93 (c) Factor 4: Advising Johnson as to the terms of the Settlement Agreement CMDA needed to be familiar with the Settlement Agreement in order to shepherd their clients through the claims process. However, due to the timing of the contract, they had no obligation to advise Johnson over the course of years relating to the evolution of negotiations. Further, CMDA did not need to advise Johnson about his opt-out rights. The deadline to opt-out of the Settlement Agreement was October 14, 2014, almost a year before Johnson retained the firm. Although CMDA did need to advise Johnson of the terms of Settlement Agreement in regard to the process of claims processing, their obligation on this point was quite minimal. When the claims process opened, the final steps were performed by Johnson, acting pro se. Johnson completed and submitted the claims package and handled the matter on his own behalf from that point forward. (d) Factor 5: Shepherding the client through the claims process When CMDA and Johnson signed the CFA, the parties understood that the firm would take on the obligation of shepherding Johnson through the claims process. However, Johnson, not CMDA, completed and submitted the paperwork necessary to establish his claim. While we recognize the assistance provided by CMDA in shepherding Johnson through the process of obtaining the relevant diagnosis, we consider the claims submission process as a separate matter. This work was not performed by CMDA. D. Conclusion Overall, we conclude that CMDA’s contribution to the Award obtained was less substantial than that which was expected by the District Court when it established the Fee Cap. We acknowledge the important role provided by CMDA when they supported Johnson in obtaining the necessary medical diagnoses here. However, we also acknowledge the substantial role of Class 91 JA9380 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed341 01/07/19 DatePage Filed:92 08/09/2019 of 93 Counsel in establishing and defending the Settlement Agreement that provided the framework for CMDA’s litigation here. And we must acknowledge that Johnson completed the claims process himself. We recommend that CMDA receive 7½ % of the Monetary Award as its fee. The 7½ % fee must still be reduced by the 5% holdback currently applicable to all attorney fee Awards. Therefore, it is our recommendation that CMDA receive 2½ % of the overall Award at this time. Whatever portion of the 5% holdback is ultimately released by the District Court, will be provided to CMDA at that time. We recommend that the remaining funds be disbursed to Johnson promptly. 92 JA9381 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10368Page: Filed342 01/07/19 DatePage Filed:93 08/09/2019 of 93 VI. CONCLUSION Upon review of the foregoing, we conclude that an attorney asserting a Lien seeking attorneys’ fees from a Monetary Award must be able to demonstrate not only a valid CFA, but also that the fees sought are reasonable under the paradigm set forth in McKenzie. This requires an evaluation of the CFA’s reasonableness both at the time when the contract is signed and upon its execution. Our ultimate resolution of a Liens has been, and will continue to be, an exercise of informed discretion in consideration of “the results obtained, the quality of the work, and whether the attorney’s efforts substantially contributed to the result,” McKenzie I, 758 F.2d at 101, with a focus on the substantially of the contribution to the Award obtained. BY THE COURT: /s/ David R. Strawbridge, USMJ DAVID R. STRAWBRIDGE UNITED STATES MAGISTRATE JUDGE 93 JA9382 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374 Page: Filed 343 01/10/19 Date Page Filed: 108/09/2019 of 19 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 MDL No. 2323 Hon. Anita B. Brody Civ. Action No. 14-00029-AB Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, Plaintiffs, v. National Football League and NFL Properties LLC, successor-in-interest to NFL Properties, Inc., Defendants. THIS DOCUMENT RELATES TO: ALL ACTIONS SECOND VERIFIED PETITION OF CO-LEAD 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), directing the filing of implementation-phase common benefit fee petitions at six-month intervals, and subsequent to the First Verified Petition for an Award of Post-Effective Date Common Benefit Attorneys’ Fees and Costs (ECF No. 10128) (“First Post-Effective Date Petition”), Co-Lead Class Counsel Christopher A. Seeger (“Co-Lead Class Counsel” or “Seeger Weiss”) respectfully submits this Second Verified Petition for an Award of Post-Effective Date Common Benefit Attorneys’ Fees and Costs. JA9383 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374 Page: Filed 344 01/10/19 Date Page Filed: 208/09/2019 of 19 Based on the work undertaken from May 25, 2018, the first date after the close of the time period covered by the First Post-Effective Date Petition, 1 to November 30, 2018, Seeger Weiss and other Class Counsel who have undertaken work for the common benefit of the Class dedicated over 4,378 hours, resulting in a lodestar (calculated using the blended rates set by the Court; see ECF No. 10019, at 7 n.4) of $2,895,044.17, and have incurred $300,590.26 in expenses. SUMMARY OF WORK COMPLETED - MAY 25, 2018 TO NOVEMBER 30, 2018 As was discussed in the First Post-Effective Date Petition, with the launch of the Settlement, Class Counsel undertook several long-term projects to ensure that the Settlement’s benefits could be delivered to the Retired NFL Football Players and their families. These efforts ranged from driving registration to exceed projected expectations to the preparation of all the policies, documents, and forms that would be used for registration, the submissions of claims, and the BAP. Although the foundational work necessary to establish this 65-year settlement was largely completed by the time of the First Post-Effective Date Petition, several substantive matters above and beyond the monitoring and oversight of the Settlement continued to demand the attention of Co-Lead Counsel and other 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 not only through the Claims Process but also on 1 The First Post-Effective Date Petition covered the period from January 7, 2017 to May 24, 2018. See ECF No. 10128 at 1. 2 JA9384 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374 Page: Filed 345 01/10/19 Date Page Filed: 308/09/2019 of 19 appeals, ongoing support of unrepresented Class Members and individual counsel, and work toward determining the best use of the $10 million Education Fund toward implementing the programs and research tools contemplated for the Fund. 2 Additionally, as with the First Post-Effective Date Petition, Co-Lead Class Counsel and other Class Counsel became engaged 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 defending the Special Masters’ unfettered discretion to consult with members of the AAP when deciding appeals and protecting the clinical judgment of Qualified MAF Physicians to make dementia diagnoses that are “generally consistent” with the negotiated BAP criteria, even if those diagnoses are not “identical” to those under the BAP criteria. As of November 30, 2018, over 20,500 Class Members had registered for the Settlement Program, over 2,100 Claim Packages had been submitted, 712 Notices of Monetary Awards had been issued, worth over $585 million; and nearly 8,850 BAP examinations had been scheduled for nearly 4,650 players and over 7,950 appointments had been attended as of January 7, 2019. 3 See 2 Much of this continuing work on the Settlement continues to be focused on non-recurring (and often unforeseen) implementation issues rather than purely ongoing oversight and maintenance of the Settlement Program. 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 program, including the potential need for the imposition of a holdback from monetary awards for the purpose of compensating future implementation-phase work. See ECF No. 9860 at 2, 17-18 & n.1. Co-Lead Class Counsel expects to be able to better estimate the nature and amount of work that will be demanded by the Settlement Program on a long-term basis in the next post-Effective Date fee petition, which will be due by July 10, 2019. 3 Historic statistics related to the MAF are available on the Settlement Website. See www.nflconcussionsettlement.com/Reports_Statistics.aspx (last accessed Jan. 8, 2019). Historic BAP statistics are not maintained on the Settlement Website. The Settlement Website however, 3 JA9385 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374 Page: Filed 346 01/10/19 Date Page Filed: 408/09/2019 of 19 www.nflconcussionsettlement.com/Reports_Statistics.aspx (last accessed Jan. 8, 2019). These successes are not mere happenstance. Seeger Weiss has worked tirelessly with other Class Counsel on numerous important matters, 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 linchpin of these efforts has been the weekly 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. Some 115 of these weekly calls had taken place by the November 30, 2018 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. Oversight of the Claims Process and Monetary Award Determinations: With the Claims Process in its second year, and hundreds of Monetary Award determinations already issued, Seeger Weiss dedicated hundreds of hours in 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 every 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. Co-Lead Class Counsels’ and other Class Counsel’s continuing engagement with Class Members and their counsel provided further bases and guidance on the needs of the Claims Process. reported that over 8,500 BAP examinations had been scheduled for nearly 4,500 players and over 7,600 appointments had been attended as of November 30, 2018. 4 JA9386 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374 Page: Filed 347 01/10/19 Date Page Filed: 508/09/2019 of 19 Moreover, Co-Lead Class Counsel is supporting the petitions of Representative Claimants for Retired NFL Players who were diagnosed with a Qualifying Diagnosis but who died before January 1, 2006. For these claims to 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)). Co-Lead Class Counsel has submitted many Statements in support of the Representative Claimants’ submissions respecting that category of claims. Furthermore, a sophisticated audit program was negotiated and implemented. Just as it had negotiated protections for the interests of Class Members in the rules and procedures governing the audit process, Seeger Weiss has remained engaged with ongoing audits, including through the submission of Statements regarding referrals to the Special Masters and replies in those proceedings taken up 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 have been shown to have undertaken potential fraud against the Settlement program. Besides its work in helping to craft these rules and procedures, Seeger Weiss monitors the progress of audit investigations and provides formal input at each juncture. Co-Lead Class Counsel has protected and will continue to protect the interests of Class Members by monitoring the wider operation of the Settlement Program and addressing with the Claims Administrator all types of issues as they arise. Appeals of Claims Determinations: Seeger Weiss continues to monitor all Monetary Award determinations to provide guidance to Class Members; assess whether Co-Lead Class Counsel should appeal any of the adverse determinations; and, in those cases where an appeal from a 5 JA9387 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374 Page: Filed 348 01/10/19 Date Page Filed: 608/09/2019 of 19 determination is taken, either by a Class Member or the NFL Parties, to determine whether CoLead Class Counsel should file a Statement respecting the appeal. Through this active engagement, Seeger Weiss’ goal is to make sure that Class Members’ entitlement to benefits is not restricted or foreclosed outright by parsimonious interpretations of the Settlement Agreement or by meritless appeals taken by the NFL. Whether through submitting Statements in support of a Class Member on appeal or through direct support of unrepresented Class Members and individual counsel, Co-Lead Class Counsel has pursued, among other things: a properly inclusive interpretation of the “generally consistent” standard underpinning diagnoses made outside of the BAP; appropriate deference to diagnosing physicians, particularly those in the BAP and MAF physician networks; assurance that any appeals by the NFL are not taken in bad faith, thereby improperly delaying the payment of Monetary Awards; making sure that evidence offered on appeal, such as social media postings offered by the NFL, is subjected to the scrutiny appropriate to unauthenticated hearsay; the appropriate use of neuropsychological screening tests when reviewing the merits of a claim; and the application of the proper diagnostic standards in cases wherein the Retired Player is deceased, which may differ from the diagnostic standards for living Retired Players. Ensuring Inclusive, Class Member-Friendly Claims Processes: After first setting up the Claims Process and the development of the fundamental forms and procedures, as well as negotiation and advocacy for the Frequently Asked Questions that serve as the “rules of the road” for the Settlement, Co-Lead Class Counsel continued to engage with the Claims Administrator, the BAP Administrator, the Lien Resolution Administrator, and the NFL Parties to prepare new guidance materials, revise existing forms, and prepare additional forms as new developments demanded. 6 JA9388 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374 Page: Filed 349 01/10/19 Date Page Filed: 708/09/2019 of 19 Co-Lead Class Counsel worked with the Claims Administrator to continually update the Settlement’s dedicated website (“Settlement Website”), so as to ensure that Class Members have easy access to the most up-to-date information and clear guidance on the Settlement Program. These efforts included a complete redesign of the Settlement Website late in 2018 to ensure that the increased volume of information concerning the Settlement Program in general and the Claims Process in particular remain easily accessible. Co-Lead Class Counsel continues to monitor the progress of the Claims Process in order to introduce improvements where possible to guarantee that all eligible claims are paid and all Class Members and (where applicable) their individual counsel receive any needed guidance. Maintenance of the Networks of Qualified BAP Providers and Qualified MAF Physicians: The vetting process associated with the selection of Qualified BAP Providers and Qualified MAF Physicians including a detailed review of each provider’s curriculum vitae and application, as well as in-depth internet searches to verify the qualifications of each candidate, continued after the First Post-Effective Date Petition because the Claims and BAP Administrators are constantly seeking to address unanticipated needs for neurologists and neuropsychologists in certain regions. Seeger Weiss has been engaged in this effort on a continuing basis. Working with the BAP Administrator, the Claims Administrator, the NFL Parties and its own experts, Co-Lead Class Counsel developed amendments to the manuals that are being used by each of the Administrators to train the physicians and providers on the medical aspects of the Settlement. Similarly, Co-Lead Class Counsel continually monitors and reviews these networks to make certain that Retired NFL Football Players are receiving the care and services to which they are entitled under the Settlement. 7 JA9389 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374 Page: Filed 350 01/10/19 Date Page Filed: 808/09/2019 of 19 BAP Examinations and Supplemental Benefits: Maintenance of the BAP network of Providers was only one aspect of ensuring delivery of the full range of BAP benefits for eligible Retired NFL Football Players. Seeger Weiss is monitoring the implementation of the BAP so that examinations are scheduled with increased efficiency and all appropriate medical standards are followed. Moreover, in coordination with the BAP Administrator, Co-Lead Class Counsel worked toward the implementation of BAP Supplemental Benefits for those Retired NFL Football Players whose BAP examinations yield a diagnosis of Level 1 Neurocognitive Impairment. As of November 30, 2018, 50 players had received Level 1 diagnoses and were either in the process of selecting their 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 required additional contracting with BAP Providers as well as with those entities outside of the BAP network of Providers who will provide many of the services. Working with the BAP Administrator, the Claims Administrator, the NFL Parties, and its own experts, Seeger Weiss developed the services agreement that each physician and supplemental provider will need to sign to serve as Supplemental Providers. In addition, since the First Post-Effective Date Petition, several visually-impaired Retired NFL Football Players sought to participate in the BAP. Because many of the tests that make up the BAP test battery require that the test subject be able to see, Co-Lead Class Counsel, with the support and assistance of its expert, undertook to negotiate an amended battery of neuropsychological tests that would accommodate visually-impaired Retired NFL Football Players. 8 JA9390 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374 Page: Filed 351 01/10/19 Date Page Filed: 908/09/2019 of 19 Appointment of Additional Appeals Advisory Panel Members: As the Court is aware, Appeals Advisory Panel (“AAP”) members and AAP Consultants serve several functions in the Settlement, including review of many pre-Effective Date diagnoses, re-review of claims that were subject to appeal but remanded by the Special Masters for further consideration in light of new documentation submitted on appeal, resolution (in some instances) of disputes between BAP Providers as to the existence (or not) of a Qualifying Diagnosis, and consultation with the Special Masters as issues relating to medicine arise in the course of their duties. Toward the middle of 2018, it became apparent that the volume of claims and the related need for AAP claims review and consultation by the Special Masters and the Claims Administrator exceeded projections (driven largely by the unexpectedly high number of registrations that were received and approved). Accordingly, the decision was made to add two additional members to the AAP. As with each of the prior candidates, the Settling Parties identified and interviewed potential candidates until the Settling Parties agreed on the recommendations to be made to the Court for appointment to the AAP. On September 5, 2018, the Court approved the appointment of two new AAP members (ECF No. 10248). Fielding Calls from, and Supporting, Class Members and Counsel Representing Class Members: In addition to all of the above, Seeger Weiss has responded to hundreds of telephone calls each month from Class Members and attorneys representing Class Members. The calls involve virtually every conceivable issue concerning the Settlement, including the Claims Process, matters relating to post-Effective Date examinations through the BAP and MAF, liens, and appeals. Seeger Weiss handled every call and was able to assist numerous Class Members in successfully navigating the Claims Process and, when appropriate, assisted unrepresented Class Members in gathering 9 JA9391 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374Page: Filed352 01/10/19 DatePage Filed:10 08/09/2019 of 19 necessary documents, including medical records, and completing their claims packages so that their claims can be promptly reviewed and, where meritorious, approved. Seeger Weiss was similarly engaged with counsel representing Class Members, answering questions they had about the Claims Process, the Settlement Website’s Frequently Asked Questions (which guide the Claims Process), and otherwise offering support to ensure that meritorious claims are properly submitted and paid. Efforts to Protect Class Members from Third-Party Profiteers: Co-Lead Class Counsel has continued to stand up for Class Members whom litigation funders lured into putative assignments of their prospective Monetary Awards. 4 It completed the Third Circuit briefing of the appeals taken by several third-party funders who are challenging 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). Related to these appeals was Co-Lead Class Counsel’s successful briefing of sundry district court and Third Circuit motions (for stay pending appeal, imposition of bond, or expedition of appeal) that the funders filed. E.g., ECF No. 9812 (denying RD Legal entities’ motion for stay pending appeal; also denied by the Third Circuit on Apr. 10, 2018), ECF No. 10232 (denying Thrivest’s motion for imposition of bond; also denied by the Third Circuit on Nov. 6, 2018). The Third Circuit has tentatively calendared the oral argument for these appeals (which were briefed separately but consolidated for purposes of disposition) for January 23, 2019. 4 As the Court is already well aware from the briefing of the assignment issues, these putative purchases of Class Members’ prospective awards at steep discounts (usually 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. 10 JA9392 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374Page: Filed353 01/10/19 DatePage Filed:11 08/09/2019 of 19 On May 7, 2018, the Court directly instructed Class Counsel Gene Locks to attempt to negotiate a global resolution with all funders that entered into assignments with Class Members as a potential alternative to the rescission remedy that the Court afforded Class Members in its December 8, 2017 Explanation and Order (ECF No. 9517). Mr. Locks and his partner David Langfitt worked over many months with more than 25 funders, the Special Masters, and the Claims Administrator to ensure that a separate resolution protocol will be and is being implemented case by case in a manner that is fair to all Class Members. Mr. Locks gave regular status reports to Special Master Verrier and worked directly with the Claims Administrator as he negotiated with these funders to develop a draft protocol to resolve disputes over the agreements. He also directly reported to the Court on multiple occasions. See, e.g., ECF Nos. 10212, 10233. The protocol is now in place as part of the Settlement Program and offers an alternative means for Class Members to protect their rights under the Settlement Agreement. A vast majority of funders have cooperated and agreed to the protocol rather than engage in further litigation. 5 Continuing to press for discovery following the filing of a motion for sanctions against certain funders – namely, the so-called Cambridge Entities and attorney Tim Howard (who was also one of their principals), who had encouraged Class Members to “invest” their retirement monies in that funder’s investment portfolio – Seeger Weiss obtained an accounting showing that the monies had been used to pay cash advances to those entering into void assignment agreements with that funder. See ECF Nos. 10186, 10210. Co-Lead Class Counsel’s related motion for 5 One such funder, Walker Preston Capital Holdings LLC, availed itself of the Third-Party Funding Resolution Protocol and voluntarily dismissed the Third Circuit appeal that it had filed. ECF No. 10317; see ECF No. 10174. 11 JA9393 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374Page: Filed354 01/10/19 DatePage Filed:12 08/09/2019 of 19 sanctions (ECF No. 9974) remains pending. Meanwhile, governmental entities are believed to be actively investigating the Cambridge Entities’ activities. Education Fund and Medical Research Library: Co-Lead Class Counsel and the NFL Parties began 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). The Settling Parties are considering organizations that benefit youth who are just now starting to participate in tackle football as well as those that are focused on the players who have made it further along the path to professional play and retirement from professional play. 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)). During the late summer of 2018, Seeger Weiss commenced efforts with Columbia University, the BAP Administrator, the Claims Administrator, its own expert, and the NFL Parties to establish a medical research library that will gather, systematically organize, and maintain the medical information that the BAP Administrator is collecting from the BAP Examinations. KEYSTONE ACCOMPLISHMENTS ON BEHALF OF CLASS MEMBERS Although the importance and benefit to the Class of the tasks discussed above are selfevident, a few of the key successes along the way illustrate the value of the work performed by 6 As further provided in the Settlement Agreement, player confidentiality will be maintained. 12 JA9394 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374Page: Filed355 01/10/19 DatePage Filed:13 08/09/2019 of 19 Seeger Weiss and other Class Counsel for the common benefit of the Class. These keystone successes include: • Special Masters’ Use of AAP on Appeals – In response to a number of Special Masters’ denials of its appeals of monetary awards in claims involving diagnoses rendered by MAF Physicians and BAP Providers, the NFL submitted a letter-brief to the Special Masters, asserting that they should overturn the denials of its appeals because they had not consulted with the AAP in reaching their decisions. The NFL took the position that the Special Masters are required to consult with the AAP in all appeals involving medical issues. Co-Lead Class Counsel submitted an opposing letter-brief, pointing out that although the Settlement Agreement permits the Special Masters to consult with the AAP on appeals, it does not mandate it but, rather, leaves such consultation solely to the discretion of the Special Masters. The Locks Firm also submitted a coordinated response on behalf of all the individual counsel representing the Players’ who were subject to the appeal. The Special Masters rejected the NFL’s position, and the NFL has now appealed. Co-Lead Class Counsel and the Locks Law Firm filed responding briefs. That appeal is pending. • “Generally Consistent” Appeal – The NFL initially appealed a number of Monetary Awards in which the diagnoses were rendered by MAF Physicians, contending that the players’ test results did not satisfy the BAP diagnostic criteria. Co-Lead Class Counsel filed statements in support of a number of the players who were the subject of the NFL’s appeals, arguing that the Settlement Agreement’s “generally consistent” standard, applicable to all diagnoses rendered outside of the BAP, expressly does not require the player to satisfy the BAP diagnostic criteria. The Special Masters denied all of the NFL’s appeals and the NFL filed objections to the Special Masters’ decisions. Co-Lead Class Counsel filed a brief in opposition to the NFL’s objections. 13 JA9395 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374Page: Filed356 01/10/19 DatePage Filed:14 08/09/2019 of 19 The Special Masters denied the NFL’s objections. The NFL then appealed the Special Masters’ ruling to this Court and Co-Lead Class Counsel filed additional briefing in opposition to the NFL’s appeal. See ECF No. 10361 (notice of Jan. 10, 2019 hearing, appending parties’ submissions). The Court had scheduled oral argument on that matter for January 10, 2019 (the date of filing of the instant petition), ECF No 10361, but cancelled the hearing following the NFL’s withdrawal of its appeal. ECF No. 10370. • Appointment of a Special Investigator – On May 30, 2018, the Court heard argument on the NFL’s motion for appointment of a Special Investigator. ECF Nos. 10029-30, 10146; see ECF No. 9880. Acknowledging that such an appointment could further the efficient functioning of the Settlement Program by serving as a valuable source of information for the Special Masters and the Claims Administrator in rendering the determinations for which they are responsible, and by freeing up valuable resources so that claims can be more efficiently reviewed on their merits, CoLead Class Counsel did not object to the appointment of a Special Investigator. At the same time, however, it argued for a clearly-delineated scope of authority and accountability were the Court to make such an appointment, asserting that the Special Investigator’s role be purely investigatory and that he or she not be permitted to render any adjudication, determination, or formal findings concerning Monetary Award claims. Co-Lead Class Counsel also noted that the Settlement’s audit and anti-fraud provisions were already working effectively to weed out dubious claims. ECF No. 9917 at 1-3. Initially, the Court deferred decision on the motion unless and until the Special Masters or the Claims Administrator “alert the Court . . . that a Special Investigator is needed to faithfully implement the Settlement Agreement.” ECF No. 10114. Once the Special Masters formally requested such an appointment (ECF No. 10253) and the Court granted the NFL’s Motion (ECF No. 10255), Co-Lead Class Counsel advocated for an order 14 JA9396 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374Page: Filed357 01/10/19 DatePage Filed:15 08/09/2019 of 19 of appointment that would protect the interests of Class Members with meritorious claims. The Court’s Order appointing Judge Stengel as Special Investigator reflects its mindfulness of the concerns that Co-Lead Class Counsel expressed. See ECF No. 10355 (Order Appointing Special Investigator, carefully delineating his authority out of concern that the appointment not chill participation in the Claims Process). Thus, although it did not spur the appointment of a Special Investigator – which was opposed outright by two Class Counsel out of genuine concerns for Class Members (ECF Nos. 9916, 9919) – Co-Lead Class Counsel acted to balance the interests of, on the one hand, guarding the integrity of the Claims Process by ferreting out suspect claims while, on the other hand, protecting the Class by ensuring that the appointment of such an official does not compromise the efficient and timely payment of meritorious Monetary Award claims. • Resolution of Putative Assignments Taken by Numerous Third-Party Funders – As discussed at pages 10-11 above, the successful negotiation of a Third-Party Funding Resolution Protocol affords an alternative remedy to that of rescission provided in the Court’s December 8, 2017 Explanation and Order. Although not all third-party funders have agreed to the protocol and the aforementioned Third Circuit appeals of certain funders remain to be adjudicated, the negotiation of the protocol provides a fair, reasonable, and mutually satisfactory resolution to Class Members and the funders, thereby affording relief to the many Class Members who entered into such putative assignments of their prospective Monetary Awards and limiting, if not avoiding altogether, the need for further judicial intervention. As the Court is already well aware, thirdparty funder issues have commanded a substantial amount of its attention. 15 JA9397 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374Page: Filed358 01/10/19 DatePage Filed:16 08/09/2019 of 19 SUMMARY OF HOURS & LODESTAR AND EXPENSES INCURRED Seeger Weiss collected and reviewed common benefit time and expenses submitted from other Class Counsel. It reviewed all of the time entries and expenses submitted, and re-reviewed its own, in order to exercise billing judgment as to both the reasonableness of the submissions and whether the work performed and expenses incurred genuinely relate to the Settlement’s implementation. Based on its thorough review, and in light of the work that this time represents, Co-Lead Class Counsel requests a fee award of $2,895,044.17 based on the blended rates established by the Court, and $300,590.26 for reimbursement of expenses, to be allocated as follows 7: Firm Levin Sedran & Berman Total Hours 19.1 Blended Rate Lodestar 8 $14,102.56 Locks Law Firm 545.6 $413,755.76 Podhurst Orseck 62.2 $45,973.33 Prof. Samuel Issacharoff 22.8 $17,290.38 Seeger Weiss 3,728 $2,403,922.14 Expenses $55.00 Total Award Requested $14,157.56 $413,755.76 $2,887.99 $48,861.32 $17,290.38 $297,647.27 9 $2,701,569.41 7 As with the common benefit fee petition filed in February 2017 (ECF No. 7151; see ECF No. 9860, at 15) and the First Post-Effective Date Petition filed on July 10, 2018 (ECF No. 10128), Co-Lead Class Counsel and Class Counsel stand ready to submit their supporting time records to the Court for in camera review. 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. Attached hereto as Exhibit “A” is a chart setting forth the above totals and breaking down each firm’s common benefit hours by professional rank. 9 The bulk of these expenses are $285,612.52 in professional fees, including the fees of Co-Lead Class Counsel’s consulting experts. 16 JA9398 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374Page: Filed359 01/10/19 DatePage Filed:17 08/09/2019 of 19 CONCLUSION WHEREFORE, the undersigned, as Co-Lead Class Counsel, respectfully requests that the Court approve this Second Post-Effective Date Fee Petition for Post-Effective Date Attorneys’ Fees and Costs and award $3,195,634.43, which reflects $2,895,044.17 in attorneys’ fees based on the blended rates established by the Court, and $300,590.26 for reimbursement of expenses, to be paid from the Attorneys’ Fees Qualified Settlement Fund, and allocated as set forth in the above table. Date: January 10, 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 CO-LEAD CLASS COUNSEL 17 JA9399 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374Page: Filed360 01/10/19 DatePage Filed:18 08/09/2019 of 19 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 Second Verified Petition of Co-Lead 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 10th day of January, 2019. /s/ Christopher A. Seeger CHRISTOPHER A. SEEGER JA9400 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10374Page: Filed361 01/10/19 DatePage Filed:19 08/09/2019 of 19 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: January 10, 2019 Respectfully submitted, /s/ Christopher A. Seeger Christopher A. Seeger JA9401 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10624 Page: Filed 36205/24/19 Date Filed: Page 08/09/2019 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _J IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS' CONCUSSION INJURY LITIGATION No. 2:12-md-02323-AB MDL No. 2323 -------------THIS DOCUME:'.'l"T RELATES TO: ALL ACTIONS Hon. Anita B. Brody ORDER I recognize the outstanding result Class Counsel have achieved in securing an uncapped settlement agreement lasting sixty-five years that benefits qualifying Class Members with substantial awards. Class Counsel did an excellent job in shepherding the Agreement through the stages of final approval and appeal. What remains, of course, is for each lawyer to assist individual clients in the claims process. 1 Additionally, there is a need to conserve the common benefit fund. AND NOW, t h i ~ y of May, 2019, it is ORDERED that: • The appointments of Class Counsel, Co-Lead Class Counsel, and Subclass Counsel, made pursuant to Rule 23(g) in the Final Approval Order (ECF No. 6510), are terminated; 1 Many Class Counsel currently represent a substantial number of Settlement Class Members. For example, one lawyer represents over a thousand individual Class Members. See ECF 9786 at 3. JA9402 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10624 Page: Filed 36305/24/19 Date Filed: Page 08/09/2019 2 of 2 • All counsel appointments in the Court's Case Management Orders (See ECF No. 64, ECF No. 72) are terminated; and • Christopher A. Seeger is reappointed as Class Counsel. 2 Copies VIA ECF 2 Nothing in this Order precludes any attorney who represents an individual class member from filing a submission to the Court advocating for his or her client's position. 2 JA9403 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677 Page: Filed 364 06/20/19 Date Page Filed: 108/09/2019 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE: NATIONAL FOOTBALL LEAGUE No. 2:12-md-02323-AB PLAYERS’ CONCUSSION INJURY LITIGATION MDL No. 2323 Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, Plaintiffs, v. National Football League and NFL Properties, LLC, successor-in-interest to NFL Properties, Inc., Defendants. THIS DOCUMENT RELATES TO: Podhurst Orseck P.A. v. Tim McKyer Attorney Lien Dispute (Doc. No. 10327) REPORT AND RECOMMENDATION DAVID R. STRAWBRIDGE UNITED STATES MAGISTRATE JUDGE I. June 20 , 2019 INTRODUCTION Presently before the Court for a Report and Recommendation in the National Football League Player’s Concussion Injury Litigation is the assertion of an Attorney Lien by Podhurst Orseck P.A. (“Podhurst”) against the Award granted to their former client, Settlement Class Member (“SCM”) Tim McKyer (“McKyer”), in the litigation that became this class action, In re: National Football League Players’ Concussion Injury Litigation, No. 12-md-2323 (E.D. Pa.). The firm seeks payment of attorneys’ fees of 22%1 of the Award issued to McKyer pursuant to the 1 As we describe below, on April 5, 2018, the District Court determined that presumptively no JA9404 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677 Page: Filed 365 06/20/19 Date Page Filed: 208/09/2019 of 21 contingency fee agreement (“CFA”) that he entered into with them on January 12, 2012. McKyer, now proceeding pro se, challenges the lien. He contends that “it was not [his] understanding” that he had retained Podhurst to represent him individually, “nor was it ever [his] intent” that the firm “be [his] personal lawyer against the NFL.” SCM Statement at 1. He contends that the fact that he made arrangements for appointments with doctors demonstrates that he never intended to hire Podhurst to act on his behalf. Id. He asks that the funds withheld for counsel fees to Podhurst be released to him. As we set out in a Report and Recommendation (“R&R”) filed on January 7, 2019,2 our evaluation of these positions involves a consideration of the CFA between McKyer and his former counsel and an assessment of the reasonableness of the requested fees in light of the five factors enumerated by the Third Circuit in McKenzie. See Doc. No. 10368 at 11-26 (discussing McKenzie Constr., Inc. v. Maynard, 758 F.2d 97, 100 (3d Cir. 1985) (“McKenzie I”) and McKenzie Constr., Inc. v. Maynard, 823 F.2d 43, 45 (3d Cir. 1987) (“McKenzie II”)). This approach will require us to scrutinize the reasonableness of the CFA at the time of the signing of the contracts and then determine if the circumstances compel a different evaluation of the CFA at the time Podhurst, as lienholder, seeks to enforce it. We will then examine the results obtained, the quality of the representation provided by Podhurst, and whether the efforts of Podhurst substantially contributed to the result. See McKenzie I, 750 F.2d at 101; McKenzie II, 823 F. 2d at 45 n.1. We conclude Individually Retained Plaintiff’s Attorneys (“IRPAs”) should receive more than 22% of a Monetary Award in fees. (“Fee Cap”). (Doc. No. 9863). See Doc. No. 10368 at 10-11 (discussing the District Court’s decision relating to the presumptive Fee Cap). The District Court referred to us all “all petitions for individual attorneys’ liens.” (Doc. No. 7446). On January 7, 2019, we issued an R&R pertaining to three separate cases. (Doc. No. 10368). In that R&R we set out the legal principles that would guide our analysis in these cases. We have since issued opinions resolving similar disputes in which the parties consented for the magistrate judge to resolve the lien dispute. See Doc. Nos. 10383 (Owens) & 10514 (McElroy). 2 2 JA9405 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677 Page: Filed 366 06/20/19 Date Page Filed: 308/09/2019 of 21 that McKyer’s fee agreement with Podhurst must be honored. We ultimately value Podhurst’s reasonable fee for the firm’s work on behalf of McKyer at 20% of the monetary award. II. FACTS AND PROCEDURAL HISTORY On January 12, 2012, McKyer signed a document entitled “Authority to Represent,” which reflected that he “retain[ed] and employ[ed] the firm of PODHURST ORSECK, P.A. and THE LEVINE LAW FIRM, P.C., as [his] attorneys to represent [him] in [his] claim for damages” against the NFL or any other entity liable for the injuries he sustained while playing in the NFL. (Lienholder Stmt., Ex. A at 1.)3 Under the terms of the agreement, if recovery were made, McKyer would pay 40% of the net recovery as the legal fee, with an additional 5% fee due if the recovery was made only after institution of an appeal or if post-judgment relief or action was required for recovery on the judgment.4 Id. McKyer also signed an appended “Statement of Client’s Rights” document that advised him of his rights as a prospective client entering into a contingent fee relationship. Id. at 3-4. McKyer’s signature on the “Authority to Represent” document indicated in typed language that it was “[d]ated at Miami, Florida,” with the handwritten date of January 12, 2012. Both documents were signed by attorneys Stephen F. Rosenthal of Podhurst and David I. Levine of the Levine Firm, with Attorney Rosenthal dating his signatures January 13, 2012.5 3 The document provided for the division of responsibilities, as well as fees, between the two firms. The Levine firm was to “be responsible and available to the client for consultation, will participate and assist in preparation of the case, and will bear full responsibility to the client, for its processing, up to final conclusion,” together with Podhurst, which was described as “the lead trial and appellate counsel.” (Lienholder Stmt., Ex. A, at 1.) The Levine firm is not a party to this lien dispute. 4 On January 5, 2017, Podhurst advised its clients via e-mail that it would not seek an individual contingency fee of more than 25%. (Lienholder Resp. at Ex. 1.) 5 Podhurst has represented that McKyer sent his signed agreement to the Podhurst office in Miami, where Attorney Rosenthal then signed it. (Lienholder Stmt. of Disp. at 1.) 3 JA9406 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677 Page: Filed 367 06/20/19 Date Page Filed: 408/09/2019 of 21 At the time of the execution of this contract, Podhurst already had filed a complaint against the NFL on behalf of retired players asserting concussion injuries. When the firm amended its complaint on January 20, 2012, it included McKyer as a plaintiff, and it filed an individual short form complaint on McKyer’s behalf after the MDL was formed. (Lienholder Stmt., Exs. D, E.) After the class action settlement was reached, approved by the District Court, and upheld on appeal, Podhurst registered McKyer in the claims portal on February 12, 2017. It obtained documentation of a qualifying diagnosis for McKyer on June 24, 2018 and within a matter of days submitted McKyer’s claim. The Claims Administrator gave Notice on August 13, 2018 of McKyer’s Monetary Award Claim Determination. This determination was based upon the qualifying diagnosis of a Level 1.5 Neurocognitive Impairment as of June 24, 2018. (Dispute Rec. Doc. 1.) The Notice of Award also reflected the Claims Administrator’s understanding that McKyer was represented by Podhurst. On October 22, 2018, after the appeal period had passed as to the monetary award, Podhurst provided to McKyer via e-mail a “Closing Statement” to reflect the disbursements it would make from his Monetary Award for attorney’s fees, direct costs, and medical liens paid. (Lienholder Stmt., Ex. C.) At that point, McKyer expressed an objection to Podhurst about paying any fee from his award. The parties attempted to resolve this dispute in several telephone calls but were unsuccessful, prompting McKyer to advise the Claims Administrator that Podhurst was no longer his representative. Podhurst filed a Notice of Lien on the MDL docket on November 9, 2018. (ECF No. 10327.) The Claims Administrator gave McKyer notice of Podhurst’s lien on November 12, 2018. (Dispute Rec. Doc. 2.) McKyer filed his timely dispute of the lien by e-mail on November 13, 2018. In light of the unresolved lien based upon the contingency fee agreement, the Claims 4 JA9407 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677 Page: Filed 368 06/20/19 Date Page Filed: 508/09/2019 of 21 Administrator withheld from McKyer’s award funds for payment of attorneys fees in an amount equal to 22% of his Award, which reflects the presumptive cap on attorney’s fees imposed by the Court’s April 5, 2018 Opinion and Order (Doc. Nos. 9862, 9863), plus costs – $4,450 – allegedly incurred by Podhurst as asserted in their Notice of Lien. Of that attorney fee withholding, a portion reflecting 5% of McKyer’s Award was separately deposited into the Attorneys’ Fees Qualified Settlement Fund pursuant to the Court’s June 27, 2018 Order Regarding Withholdings for Common Benefit Fund counsel. (Doc. No. 10104.) Those funds may be distributed at a later date upon further order(s) of Judge Brody. This leaves the Court to determine the appropriate distribution for the attorneys fees currently available for disbursement (representing 17% of McKyer’s Award) and the allocation of those funds that are currently held in the Attorneys’ Fees Qualified Settlement Fund (representing 5% of McKyer’s Award), if those funds, or a portion thereof, are distributed by the Court at a future date. Pursuant to a briefing schedule issued by the Court and in accordance with the Lien Rules, the parties submitted simultaneous Statements of Dispute concerning Podhurst’s entitlement to a fee. (Dispute Rec. Doc. Nos. 7 & 8.) Each also submitted a Response to the other’s Statement of Dispute. (Dispute Rec. Docs. 9 & 10.) Neither party requested that the Court hold an evidentiary hearing. Pursuant to Lien Rule 17, the Record of Dispute was then transferred to the Court. After convening a telephone conference with the parties, I determined that it was not necessary to hold an evidentiary hearing before evaluating this dispute and making a recommendation for its disposition.6 The matter is ripe for review. 6 During a preliminary telephone conference, Podhurst recommended that I assist the parties by overseeing settlement discussions. McKyer joined in this request. Accordingly, I spoke with each side individually in an initial effort to reach a resolution. I then enlisted the assistance of my colleague, the Honorable Timothy R. Rice, United States Magistrate Judge. Unfortunately, those efforts were unsuccessful. 5 JA9408 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677 Page: Filed 369 06/20/19 Date Page Filed: 608/09/2019 of 21 III. THE VALIDITY OF THE CONTRACT To begin, we address the implicit challenge raised by McKyer about the enforceability of the CFA. That document, entitled “AUTHORITY TO REPRESENT,” provides: I, the undersigned client, do hereby retain and employ the firm of PODHURST ORSECK, P.A. and THE LEVINE LAW FIRM, P.C., as my attorneys to represent me in my claim for damages against THE NATIONAL FOOTBALL LEAGUE, or any other person, firm or corporation liable, resulting from injuries sustained while a player in the NFL. I hereby agree to pay from any recovered amount, the cost of investigation including reasonable charges for in-house charges for services and, should it be necessary to institute suit, the court costs including the actual amount charged by third party providers of services to the attorney. As compensation for their services, I agree to pay my said attorneys, from the proceeds of any gross recovery, including any awarded attorneys’ fees, the following fees: a. 40% of any recovery; plus b. An additional 5% of any recovery after institution of any appellate proceeding is filed or post-judgment relief or action is required for recovery on the judgment. (Lienholder Stmt. of Dispute, Ex. A) (Dispute Rec. Doc. 7). In response to the Claims Administrator’s notification that funds were being deducted from his Monetary Award for Podhurst’s fee (albeit capped at 22% of his award), McKyer asserted that he “NEVER thought [he] ‘hired’ them as [his] personal attorney in the case.” (SCM Resp. to Notice of Lien, Nov. 13, 2018) (Dispute Rec. Doc. 3). He contended that the firm lawyers “grossly misrepresented themselves by leading [him] to believe they [were] the main attorneys in the case against the NFL and the league was going to pay them.” (Id.) He contends that he “do[es] not recall ever being told that [he] hired them at 40%” and that he would not have agreed to such a term. (Id.) He re-asserted this contention in his Statement of Dispute as this lien dispute reached the briefing stage, explaining that it was never his “intent to hire Steven Marks or Podhurst Orseck 6 JA9409 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677 Page: Filed 370 06/20/19 Date Page Filed: 708/09/2019 of 21 PA” to be his “personal lawyer against the NFL,” adding that according to Marks, “they were already ‘Hired’” and McKyer “was adding [his] name as a litigant,” which he believes he “did not have to do as [he is] a protected class member.” (SCM Stmt. of Dispute, Jan. 15, 2019) (Dispute Rec. Doc. 7). He contends that he “honestly [does not] remember actually signing this ‘contact’ with Mr. Marks,” whom he says he never met and spoke with on only a few occasions. (Id.) McKyer contends that the fact that he and his friend who assisted him throughout coordinated appointments with doctors and paid for the flights and accommodations reflects that he was “acting on the understanding that [he] was not represented by Podhurst Orseck or Steven Marks.” (SCM Resp. to Stmt. of Dispute) (Dispute Rec. Doc. 9). See also id. (arguing that his actions “prove we were not on the ‘same page’ about the extent of the relationship”). We find that the records before us of the communications between McKyer and Podhurst belie his contentions. McKyer provided, or caused to be provided, to Podhurst several hundreds of pages of medical and other records from his NFL career. See Lienholder Stmt. of Disp., Ex. F. These records would have been important had the individual lawsuit against the NFL proceeded with discovery and in the absence of the large-scale resolution of the class-wide settlement. In addition, when the proposed revised settlement agreement was pending approval in the district court in early 2015, Podhurst personnel made inquiries on McKyer’s behalf for an advance on his future recovery. See id., Ex. G (March 4, 2015 email from Roy K. Altman, Esquire of Podhurst to McKyer, copied to paralegal Gina Palacio). These communications, particularly about an advance or loan, were clearly made in the context of an individual attorney-client relationship. Podhurst has also represented that McKyer was included in “all client” e-mail alerts and bulletins, including one sent on January 5, 2017, as the class-wide settlement approached its effective date, that clarified the difference between common benefit fees for class counsel and 7 JA9410 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677 Page: Filed 371 06/20/19 Date Page Filed: 808/09/2019 of 21 individual contingency fees. See Lienholder Resp. to SCM Stmt. of Dispute, Ex. 1. See also id. (describing the work for which individual contingency fees are paid). The firm explained that it would “not seek an individual contingency fee under your contract of more than 25%.” Id. There is no record of any response by McKyer to this e-mail communication that would dispute the notion that he entered into a contract with Podhurst for individual representation, which at that point, as the e-mail message explained, would include “gathering medical records, preparing updates, registration for settlement benefits, scheduling baseline examinations (if needed), compiling, preparing, submitting, and following up with the claims package and representing individual clients through any appeals within the claims process, should that be necessary.” (Id.) Finally, the dispute record demonstrates that Podhurst personnel, usually paralegal Gina C. Palacio,7 did help with many of the tasks of individual representation described in the firm-wide e-mail, such as scheduling (and re-scheduling) McKyer’s evaluation by Dr. Brooks. Id., Ex. J (emails of Feb. 2018). Ms. Palacio also demonstrated in her e-mail communications with McKyer that she obtained from Dr. Books his neuropsychological report, which she shared with him, and that she “provided it to Dr. Nieto’s office so he can finalize his MAF Report and Certification.” Id. (e-mail of Mar. 27, 2018). She also explained to McKyer that Dr. Nieto required that a close family member fill out a particular questionnaire, which she attached to her message and which she asked to be returned to her for transmission to Dr. Nieto. (Id.) McKyer’s friend complied with Ms. Palacio’s request, as the record shows that Ms. Palacio had the completed questionnaire on hand less than two weeks later and forwarded it to Dr. Nieto’s office staff to facilitate his MAF Report and MAF Certification. Id. (e-mail of April 9, 2018). Ms. Palacio’s e-mail signature identifies her as “Sr. Paralegal to Steven C. Marks, Esq.” at Podhurst Orseck, P.A. See Lienholder Stmt. of Dispute, Ex. J. 7 8 JA9411 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677 Page: Filed 372 06/20/19 Date Page Filed: 908/09/2019 of 21 The record thus demonstrates that Podhurst personnel conducted themselves in a manner we accept as consistent with the obligations they undertook in the contingency fee agreement and that McKyer engaged with them in those efforts, even if there were other arrangements that he made on his own. See, e.g., Report of Lisa Cicetti, Psy. D., Dec. 16, 2016 (reflecting McKyer’s self-referral). (Lienholder Stmt. of Dispute, Ex. H.) McKyer did not produce any evidence that he made any objection to the efforts of Ms. Palacio or any other Podhurst personnel that are described here and which reflect activity on his behalf over a span of several years. Moreover, his alternative account – that Attorney Steven Marks told him that he was merely adding his name to a lawsuit but that he did not have to do so because he was “a protected class member” – reflects a garbled understanding or recollection of events, as no class had been certified when McKyer signed the CFA on January 12, 2012. To be sure, the MDL had not even been formed.8 As neither Steven Marks nor the Podhurst firm was yet designated as class counsel or members of plaintiffs’ steering committees, it is difficult for us to accept that Attorney Marks would have assured McKyer on or before January 12, 2012 that, notwithstanding the clear language of the CFA, he “would be paid by the NFL.” See SCM Stmt. of Dispute at 1. (Dispute Rec. Doc. 7.) We conclude that the only reasonable interpretation of the record is that McKyer entered into this contract because he agreed to and intended to be bound by all of the terms set forth in the contract. We proceed to consider the validity of Podhurst’s attorney lien on that basis. 8 The NFL parties filed a motion with the United States Judicial Panel on Multidistrict Litigation on November 15, 2011 requesting consolidated pretrial proceedings. Although we could assume that Podhurst expected that an MDL would be created and that its attorneys would play a significant role in the litigation, the motion was not granted until January 31, 2012, after Podhurst and McKyer entered into this CFA. 9 JA9412 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677Page: Filed373 06/20/19 DatePage Filed:10 08/09/2019 of 21 IV. DISCUSSION Third Circuit authority makes it clear that attorneys carry the burden of proof to demonstrate that a fee sought pursuant to a contract “is reasonable under the circumstances.” Dunn v. H.K. Porter Co., Inc., 602 F.2d 1105, 1111-12 (3d Cir. 1979) (discussing deference to fee contracts, but cautioning that attorneys always bear the burden of demonstrating the reasonableness of their contracts). The District Court’s prior opinions in this class action settlement in no way relieved attorneys of this obligation. Indeed, the Court explained that all attorneys seeking fees – whether those fee requests are submitted through a Lien or otherwise – are obligated to ensure that their fees are “reasonable” under the standards set out in McKenzie. See Doc. No. 9862 at 8-9 (noting the requirement and indicating the attorney’s burden of showing reasonableness by a preponderance of the evidence). Even when the lienholder presents a presumptively valid fee contract, we are required to assess if the payment of the fee would “result[] in such an enrichment at the expense of the client that it offends a court’s sense of fundamental fairness and equity.” McKenzie I, 758 F.2d at 101. Pursuant to the McKenzie five-part reasonableness analysis, we evaluate the “performance of the attorney’s contractual obligations [with consideration of] the circumstances surrounding the engagement of the attorney.” McKenzie I, 758 F.2d at 101. Our inquiry begins “by scrutinizing the reasonableness of the contingent fee arrangement” at the time of the contract’s signing and comparing it to the circumstances at the time of enforcement. McKenzie II, 823 F.2d at 45 n.1. Recognizing that the District Court has already adjusted fee agreements through the Fee Cap to account for the changed circumstances that occurred over the course of this litigation, we must determine if there were other factors specific to this individual case that should be considered in our assessment of the reasonableness of the fee at the time of the enforcement of each contract 10 JA9413 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677Page: Filed374 06/20/19 DatePage Filed:11 08/09/2019 of 21 upon which a lien is based. We will then review: (1) the result in the case, (2) the quality of the work performed by counsel, and (3) the substantiality of that contribution to the overall result. As we outline below, circumstances changed significantly from the time of McKyer’s initial contracting with Podhurst to the time that Podhurst sought to enforce its contract. Based upon our evaluation of the remaining three prongs of the McKenzie test, however, we are satisfied that Podhurst provided quality representation and made substantial contributions to the ultimate Award received in this case, notwithstanding McKyer’s contention that he himself is solely responsible for the award he secured such that Podhurst should not receive any fee. We will therefore recommend that the Court approve Podhurst’s fee request. A. The CFAs at the time of contracting and enforcement – impact of changed circumstances As we assess the reasonableness of the contingent fee arrangement at the time of the contract’s signing by McKyer and Podhurst, there are two primary factors that we must examine: (1) the legal challenges in the plaintiff’s pursuit of a monetary award and (2) the time-intensive nature of the litigation. We then compare the landscape at the time of contracting with the circumstances at the time the attorney-client relationship terminated. Podhurst agreed to represent McKyer in his dispute with the NFL on January 13, 2012, after the first lawsuits were brought by former players against the NFL in a California state court but before individual cases had been consolidated for pretrial purposes into this MDL. The NFL’s motion for consolidated pretrial proceedings, however, was pending at this time, and was granted soon after, on January 31, 2012. This is what Professor Rubenstein9 characterized as “Phase 1” of 9 The District Court appointed Professor William B. Rubenstein of Harvard Law School as an expert witness on attorneys’ fees to aid the Court. After considering the recommendations of 11 JA9414 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677Page: Filed375 06/20/19 DatePage Filed:12 08/09/2019 of 21 the litigation. As has been noted in prior opinions in this MDL, at that time the plaintiffs faced stiff challenges surmounting the issue of preemption. Establishing causation also would have been similarly challenging, since the claims involved complex scientific and medical issues that had not yet been studied comprehensively and where the settlement class members would certainly also have suffered trauma in their college and high school careers. Risk as it related to overall workload also varied over time in this litigation. When law firms undertake large-scale litigation, they are obligated to decline to take on other litigation. The cost to law firms in deciding to participate and thus forego alternative matters must be recognized. In this first phase of the litigation, the law firms that undertook representation of players individually, without the benefit of the efficiencies contained within an MDL, faced monumental challenges and risked having to pursue the entire case themselves, perhaps even through trial. Fee arrangements reflecting those large contingencies “would have been expected and appropriate.” (Doc. No. 9526 at 25-26). Once the individual cases were consolidated into an MDL at the end of January 2012, the risk related to the volume of work to be undertaken by a law firm representing a retired player changed dramatically. Once an MDL was formed, “lawyers contracting to represent clients were well aware that the costs of doing so had been greatly reduced: pre-trial proceedings would now be consolidated and undertaken once and the likelihood that any case would be remanded for trial declined significantly.” (Doc. No. 9526 at 26). The formation of an MDL also resulted in the formation of the Plaintiffs’ Executive Committee (“PEC”), a Plaintiffs’ Steering Committee Professor Rubenstein and the viewpoints of interested parties, the District Court adopted Professor Rubenstein’s conclusions and presumptively capped IRPAs’ fees at 22% plus reasonable costs. (Doc. No. 9862 at 2). 12 JA9415 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677Page: Filed376 06/20/19 DatePage Filed:13 08/09/2019 of 21 (“PSC”), and other committees that took over the primary work in the case. See Case Management Order Number 5 (Doc. No. 3710 at 3) (detailing types of work shifted from IRPAs to Plaintiffs’ Committees, which would be compensated through a common benefit fund).10 The risks as to the legal challenges faced by the plaintiffs at this phase in the litigation, however, remained substantial. This case remained a “high-risk, long-odds litigation.” (Doc. No. 9860 at 10). McKyer remained in a contractual relationship with Podhurst from January 13, 2012 until after he received his award on August 13, 2018. During this time, of course, substantial progress had been made in moving the cases forward, collectively and individually. The NFL’s motions to dismiss and to sever were argued in April 2013, but in July 2013, without yet ruling on these motions, Judge Brody ordered the parties to mediation, and by the end of August 2013 a term sheet had been signed. This led to class counsel’s motion for preliminary approval filed on January 6, 2014, which was further amended and finally approved on April 22, 2015. On April 18, 2016, the Third Circuit Court of Appeals affirmed the District Court’s approval of the Settlement Agreement, and the United States Supreme Court later denied certiorari. The risk inherent in the litigation was then decreased significantly, thanks to the efforts of Class Counsel and those other lawyers who served on various MDL committees and performed work for the common benefit. This does not alter the fact, however, that Podhurst undertook the representation at a time of great risk. McKyer and Podhurst remained in a contractual relationship through the period in which the claims administration opened. Podhurst registered McKyer with the Claims Administrator on February 12, 2017 and assisted in obtaining the necessary diagnosis and documentation from 10 We have laid out specifics of this benefit in our initial attorney lien dispute Report and Recommendation. See Doc. No. 10368 at 13-18. 13 JA9416 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677Page: Filed377 06/20/19 DatePage Filed:14 08/09/2019 of 21 appropriate providers and followed up as necessary. Podhurst submitted McKyer’s claim on June 28, 2018 and it was approved on August 13, 2018. There were thus several key changes in the circumstances during the time between when Podhurst agreed to represent McKyer and when it sought to enforce the contract upon the approval of McKyer’s monetary award by the settlement Claims Administrator. While the evidencegathering tasks and case development relating to damages were much the same, Podhurst had only to adhere to an administrative process in order to secure the award and did not have to defend against legal challenges from the NFL Parties. B. The results obtained We next look to the results obtained, the quality of the work performed and the substantiality of the firm’s efforts in bringing about the result. We observe that on August 13, 2018, McKyer qualified for the full Monetary Award grid amount based on his number of eligible seasons played and his Level 1.5 Neurocognitive Impairment diagnosis at the age of 54. (McKyer, Notice of Monetary Award Claim Determination). C. The quality of the work performed Podhurst contends that it provided quality work to assist McKyer in securing this award. It lays out this work at pages 7-10 of its Statement of Dispute. McKyer responds that Podhurst “did NOTHING” for him. (SCM Stmt. of Dispute at 1.) (Dispute Rec. Doc. 3.) He contends that he found doctors and made appointments himself, and that he made his own travel arrangements. This is acknowledged by Podhurst and confirmed by the dispute record, where a medical report from 2016 is addressed to McKyer and indicates that he was a “self-referral.” Nonetheless, it does not appear that this arose from Podhurst failing to represent him adequately. To be sure, when 14 JA9417 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677Page: Filed378 06/20/19 DatePage Filed:15 08/09/2019 of 21 McKyer needed to be evaluated by a different (board-certified) psychologist, Podhurst helped to shepherd him through the process with Dr. Brooks and ensured that the neuropsychologist received all of the necessary information from Dr. Brooks and others to render a diagnosis consistent with the MAF protocols. Podhurst’s involvement in this important work is also reflected in the costs it incurred. See Lienholder Stmt. of Dispute, Ex. C (reflecting expenses advance in 2017 and 2018 for reports and supplemental reports of Drs. Nieto and Brooks).11 As is demonstrated in our discussion below, we find that Podhurst provided quality work on behalf of McKyer and in accordance with the demands of the litigation and settlement administration. D. The substantiality of the work performed Perhaps the more important question is to consider Podhurst’s contribution to the work necessary to obtain the Monetary Award that McKyer received in this case. In cases where more than one firm represented a settlement class member leading up to the receipt of the Notice of Award, we have looked to the contributions of each firm, comparing the value each added in advancing legal theories and in the work it performed individually for the client, with the effect on the ultimate outcome of the client’s award. We typically lay out the efforts undertaken by the firms in the various aspects of their representation to aid in our evaluation of this critical and final factor in the McKenzie analysis. Here, only one firm has represented McKyer – Podhurst – and that firm was still of record 11 We observe here that this is not the first case in which we have been faced with a settlement class member or representative who claims that counsel’s fee request should be rejected or reduced because he or she made appointments with doctors independent of the law firm. See ECF No. 10383 (Locks Law Firm v. Burtaniel Owens), Mem. Opin., Jan. 18, 2019. There we concluded that the lienholder was entitled to the 20% fee percentage set forth in the parties’ CFA as amended. 15 JA9418 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677Page: Filed379 06/20/19 DatePage Filed:16 08/09/2019 of 21 when the award was made, at which point there was no more to be done. There is no other attorney competing for the funds available for counsel fees. Rather, McKyer contends that no IRPA fee is payable to Podhurst at all because he never intended to oblige himself to an individual contract representation. He also contends that “they did NOTHING for me,” as he did not require advances and he and his friend did all of the “leg work.” (SCM Resp. at 3.) Although the construct is somewhat different here, we will evaluate Podhurst’s (and McKyer’s) contributions here in accordance with Circuit case law and our prior decisions. As we have described there, we look to as many as seven non-exclusive categories of work undertaken by IRPAs who have supported their clients in this litigation: (1) review of medical records and necessary actions taken to ensure medical conditions were identified and diagnosed at the earliest possible date; (2) support of their individual clients to ensure their lawsuit would have evidentiary support should the matter proceed to trial; (3) review of other litigation that was related to ensure claims in this litigation would not be negatively impacted; (4) support of their individual clients in understanding the ongoing settlement negotiations and risks, and in ultimately making the determination of whether to opt out of the class, (5) shepherding the individual client through a claims process from registration to receipt of a Monetary Award, (6) support of clients who were seeking loans and were exposed to predatory lending practices; and (7) providing necessary support in other personal matters collaterally related to this litigation. In no way is it expected that an IRPA’s work will cover each of these categories. We will, however, use these categories as checkpoints as we consider the substantiality of Podhurst’s efforts as an IRPA and the role Podhurst played in the maximizing McKyer’s award. 16 JA9419 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677Page: Filed380 06/20/19 DatePage Filed:17 08/09/2019 of 21 (1) The review of medical records and necessary actions taken to ensure medical conditions were identified and diagnosed at the earliest possible date Podhurst contends that it worked with McKyer to schedule a medical evaluation with a qualified MAF physician because a psychologist with whom McKyer previously consulted on his own in 2016 did not ultimately meet the criteria set for the MAF program. Podhurst facilitated the transmission of a third-party report to the neuropsychologist to review for his qualifying diagnosis. It is uncontested, however, that McKyer himself also arranged and paid for medical appointments and obtained recommendations and referrals for evaluators for this litigation. See Lienholder Stmt. of Dispute at 9-10. (2) Support of their individual clients to ensure their lawsuit would have evidentiary support should the matter proceed to trial We accept Podhurst’s assertion that it performed significant work with respect to reviewing and collecting medical reports and scheduling appointments for neuropsychological testing with Dr. Brooks and follow up diagnoses with board certified neurologist Dr. Nieto. The firm gathered NFL player history file materials (largely obtained by McKyer) that would pertain to the number of McKyer’s eligible seasons, which would directly impact the size of his Monetary Award. These materials may also have been necessary had Podhurst been required to litigate the case individually and face causation challenges. In the course of the work it did after the settlement was reached and the MAF criteria established, Podhurst advanced $4,450 in costs in 2017 and 2018 for testing and reports by Drs. Brooks and Nieto. (3) Review of other litigation that was related to ensure claims in this litigation would not be negatively impacted This factor is not applicable to this dispute. (4) Support of their individual clients in understanding the on17 JA9420 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677Page: Filed381 06/20/19 DatePage Filed:18 08/09/2019 of 21 going settlement negotiations and risks, and in ultimately making the determination of whether to opt out of the class Podhurst obviously counseled McKyer to join the multi-plaintiff lawsuit that was being filed in the Southern District of Florida on January 20, 2012. Podhurst has represented that it had periodic communications with McKyer concerning the status of settlement discussions and the future of the litigation. See, e.g., Lienholder Resp., Ex. 1 (e-mail from Steven C. Marks dated Jan. 5, 2017 re: implementation of settlement). Podhurst appears to have done as much for McKyer as the circumstances of the case would allow while the agreement was negotiated, pending approval, and on appeal. (5) Shepherding the individual client through a claims process from registration to receipt of a Monetary Award Podhurst exclusively performed this work for McKyer. It registered him on February 12, 2017 and submitted the claim form on June 28, 2018. This work was certainly a necessary step for McKyer to receive the award that he did. (6) Support of clients who were seeking loans and were exposed to predatory lending practices Podhurst worked with McKyer when he wanted to obtain a loan, although the loan application was ultimately not approved. See Lienholder Stmt., Ex. G (e-mail dated Mar. 4, 2015 from Roy K. Altman, Esq. of Podhurst to McKyer, copied to Gina Palacio of Podhurst). (7) Providing necessary support in other personal matters collaterally related to this litigation This factor does not appear to apply to McKyer’s relationship with Podhurst. * * * In this attorney lien process, we are called upon to synthesize this information to apportion fees for the quality representation provided to the retired player that yielded the positive outcome 18 JA9421 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677Page: Filed382 06/20/19 DatePage Filed:19 08/09/2019 of 21 of a Monetary Award. We are cognizant that, here, three entities contributed to the work necessary to obtain that Award: Podhurst acting for McKyer individually; Class Counsel and law firms such as Podhurst that acted for the common benefit in negotiating and defending the Settlement Agreement; and McKyer himself, who sought out treatment providers and obtained evaluations at his own expense. The substantiality of Podhurst’s work as an IRPA in securing McKyer’s Monetary Award is necessarily reduced by the work of Class Counsel and the attorneys working with them for the common benefit for much of the same time period in which Podhurst represented him. The Court has already observed that class counsel’s efforts clearly “reduced the amount of work required of IRPAs.” (Doc. No. 9862 at 4.) Its establishment of a 22% presumptive fee cap for IRPAs reflects this, taking into account: (1) the value of the work provided by Class Counsel in their negotiation of a Settlement Agreement; (2) the benefits of Class Counsel’s work as the legal team in filing pleadings, framing the Settlement Agreement, and handling the complex appellate process that followed; and (3) the efficiencies provided when the case was resolved without formal discovery, with limited motion practice, and with no bellwether trials. Podhurst was at McKyer’s side prior to the formation of the MDL, during the period in which the settlement was negotiated, while protocols were finalized and qualifying diagnoses could be secured, and for claim submission and award receipt. It was only after the claim culminated in the Award that McKyer discharged Podhurst. Our task is to determine the reasonableness of the fee sought by Podhurst. We conclude that Podhurst’s work warrants a reasonable fee. We acknowledge McKyer’s expression of confusion about the nature of the agreement that was signed in January 2012. See SCM Stmt. of Dispute (“I honest[ly] do no[t] remember actually signing that ‘contract’ with Mr. Marks”). While 19 JA9422 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677Page: Filed383 06/20/19 DatePage Filed:20 08/09/2019 of 21 he argues that his course of conduct in setting up his own appointments reflected his understanding about his responsibility to manage his own case, there is no evidence that McKyer ever communicated to Podhurst that he desired any change to their CFA. Nor is there any evidence that he questioned or objected to the individualized assistance, reflected in the record, from Attorney Altman (concerning a possible advance) and paralegal Gina Palacio (concerning the advance as well as compilation of the medical record and claim submission), nor the firm’s interactions with the Claims Administrator regarding registration and claim form submissions. The record contains no evidence of any complaints by McKyer that Podhurst was not providing the services described in the CFA. Rather, Podhurst was available to him and assisted as necessary throughout. We cannot accept the proposition he advances that the award was solely the result of his own effort, albeit with some sort of “free” assistance of Ms. Palacio, the paralegal to Podhurst partner Mr. Marks. At the same time, McKyer did have direct involvement in obtaining his player records and in securing and making many of the arrangements to see the doctors who would ultimately provide the necessary testing and qualified diagnosis. He thus relieved Podhurst of some of the tasks ordinarily undertaken by IRPAs. We also note that there did not appear to have been any difficulty in the processing or approval of McKyer’s claim that required any additional or unanticipated work by Podhurst. In these circumstances, we are hard pressed to conclude that the firm’s efforts support the presumptive maximum fee of 22% for its IRPA work on McKyer’s behalf. comfortable, however, in approving a fee of 20%. 20 JA9423 We are Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10677Page: Filed384 06/20/19 DatePage Filed:21 08/09/2019 of 21 E. Costs Podhurst has declared that it does not seek reimbursement of the $4,450.00 incurred in costs arising from its representation of McKyer. (Lienholder Stmt. of Dispute at 13.) Therefore, these withheld funds will be available for release to McKyer. V. CONCLUSION The evidence recounted here should result in an approval of a fee to Podhurst equal to 20% of McKyer’s monetary award. We are convinced that McKyer’s assertions, predicated upon his own “understanding” of the relationship he had with Podhurst and its personnel, does not invalidate the clear terms of the CFA signed in January 2012. We find that Podhurst’s IRPA contribution to McKyer’s Award is sufficient to support a fee of 20%, although this amount must be reduced by the Common Benefit Fee deduction currently applicable to all Awards. Accordingly, we recommend that the Claims Administrator be ordered to: 1) Disburse from the currently withheld funds, representing 17% of McKyer’s monetary award and $4,450.00 withheld for reimbursement of costs: a. To Podhurst: an amount equal to 15% of McKyer’s monetary award; and b. To McKyer: an amount equal to 2% of the monetary award, plus $4,450.00; 2) At such time as the Court rules upon the 5% holdback request, disburse from those currently set aside funds: a. To Podhurst: 91% (20/22nds) of the funds released for payment to IRPAs; and b. To McKyer: 9% (2/22nds) of the funds released. BY THE COURT: /s/ David R. Strawbridge, USMJ DAVID R. STRAWBRIDGE UNITED STATES MAGISTRATE JUDGE 21 JA9424 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10756-1 Page: Filed 38507/18/19 Date Filed: Page08/09/2019 1 of 3 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS’ CONCUSSION INJURY LITIGATION No. 12-md-2323 (AB) MDL No. 2323 THIS DOCUMENT RELATES TO: Plaintiff’s Master Administrative Long-Form Complaint and: PETITION TO ESTABLISH ATTORNEY’S LIEN Plaintiff Vontrell Jamison Comes now Petitioners, David Buckley, Attorney David Buckley, PLLC, Mokaram Law Firm and Stern Law Group, pursuant to an executed Agreement for Legal Services come now and states as follows: 1. Petitioners are attorneys at law admitted to practice before the courts of Texas, and file this Petition to establish a lien for attorney’s fees as set forth hereinafter. 2. On or about May 9, 2015, Petitioners, David Buckley, Attorney David Buckley, PLLC, Mokaram Law Firm and Stern Law Group, were retained and employed by the Plaintiff, Vontrell Jamison, pursuant to an agreement for legal services, to pursue a claim for injuries and damages allegedly caused by the National Football League’s conduct associated with football-related concussions, head, and brain injuries. 3. The specifics of the agreement for legal services are as follows: If no recovery (by settlement or trial) is obtained, client will not owe a legal fee. If David Buckley, Attorney JA9425 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10756-1 Page: Filed 38607/18/19 Date Filed: Page08/09/2019 2 of 3 David Buckley, PLLC, Mokaram Law Firm and Stern Law Group obtain a settlement or judgment for Client, Client will pay to the Petitioners thirty three and one third percent (33.33%) of the gross recovery plus reimbursement of expenses. 4. When Petitioners entered into contract with Plaintiff, Petitioners entered into the risk and expense of the litigation. 5. From the date the Petitioner was authorized to proceed on behalf of the Plaintiff, the Petitioner has actively and diligently investigated, prepared, and pursued Plaintiff’s claims, and has taken all steps necessary to prosecute those claims, including, but not limited to, correspondence and communications with the client, preparation and review of client’s factual and legal circumstances, providing client updates, analyzing Plaintiff’s medical status and need for medical testing, etc. 6. The Plaintiff has discharged the Petitioners as his attorney in this matter, and it is expected that a new attorney will be pursuing representation of the Plaintiff in this action. 7. Petitioners were not terminated due to any malfeasance or other improper action. 8. The Petitioners claim the right to have a lien for attorney’s fees and expenses established and enforced upon any sums to be derived from any settlement or judgment obtained or to be obtained by Plaintiff in this action. WHEREFORE, the Petitioners pray: 1. That an attorney’s lien be established; 2. That the amount of the lien be determined; 3. That the Court order that Petitioner be entitled to enforce an attorney’s lien against the proceeds to be derived from any settlement or judgment in this action; 4. That the Defendant or the Defendant’s insurer be prohibited from paying to the Plaintiff any sums of money until said lien has been satisfied; and JA9426 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10756-1 Page: Filed 38707/18/19 Date Filed: Page08/09/2019 3 of 3 5. For such other further relief as this Court deems just. Dated: July 18, 2019. Respectfully submitted, ATTORNEY DAVID BUCKLEY, PLLC By: /s/ David Buckley David Buckley State Bar No. 24078281 FED ID No. 1465981 1811 Bering Drive Ste. 300 Houston, TX 77057 Tel. (713) 719-9312 Fax. (713) 719-9307 david@thebuckleylawgroup.com ATTORNEY FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that I caused the foregoing Petition to Establish Attorney’s Lien to be served via the Electronic Case Filing (ECF) system in the United States District Court for the Eastern District of Pennsylvania, on all parties registered for CM/ECF in the litigation. Dated: July 18, 2019. /s/ David Buckley David Buckley JA9427 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767 Page: Filed 388 07/25/19 Date Page Filed: 108/09/2019 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 MDL No. 2323 Hon. Anita B. Brody Civ. Action No. 14-00029-AB Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, 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. JA9428 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767 Page: Filed 389 07/25/19 Date Page Filed: 208/09/2019 of 17 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 JA9429 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767 Page: Filed 390 07/25/19 Date Page Filed: 308/09/2019 of 17 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 JA9430 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767 Page: Filed 391 07/25/19 Date Page Filed: 408/09/2019 of 17 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 JA9431 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767 Page: Filed 392 07/25/19 Date Page Filed: 508/09/2019 of 17 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 5 JA9432 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767 Page: Filed 393 07/25/19 Date Page Filed: 608/09/2019 of 17 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 6 JA9433 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767 Page: Filed 394 07/25/19 Date Page Filed: 708/09/2019 of 17 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 7 JA9434 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767 Page: Filed 395 07/25/19 Date Page Filed: 808/09/2019 of 17 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 JA9435 Case:Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767 Page: Filed 396 07/25/19 Date Page Filed: 908/09/2019 of 17 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. 9 JA9436 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767Page: Filed397 07/25/19 DatePage Filed:10 08/09/2019 of 17 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 JA9437 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767Page: Filed398 07/25/19 DatePage Filed:11 08/09/2019 of 17 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. 11 JA9438 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767Page: Filed399 07/25/19 DatePage Filed:12 08/09/2019 of 17 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 12 JA9439 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767Page: Filed400 07/25/19 DatePage Filed:13 08/09/2019 of 17 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. 13 JA9440 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767Page: Filed401 07/25/19 DatePage Filed:14 08/09/2019 of 17 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. 14 JA9441 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767Page: Filed402 07/25/19 DatePage Filed:15 08/09/2019 of 17 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 15 JA9442 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767Page: Filed403 07/25/19 DatePage Filed:16 08/09/2019 of 17 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 JA9443 Case: Case 18-2012 2:12-md-02323-AB Document: 003113316607 Document 10767Page: Filed404 07/25/19 DatePage Filed:17 08/09/2019 of 17 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 JA9444