Case: 19-2753

Document: 003113325405

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Date Filed: 08/20/2019

No. 19-2753

In the United States Court of Appeals
for the Third Circuit
IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS’ CONCUSSION INJURY
LITIGATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(CIV. NO. 2-12-MD-02323) (THE HONORABLE ANITA B. BRODY, J.)

RESPONSE FILED BY NFL PARTIES
TO THE ORDER OF THE CLERK OF COURT

BRAD S. KARP
LYNN B. BAYARD
BRUCE BIRENBOIM
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, New York 10019
(212) 373-3000
Attorneys for the National Football League and NFL Properties LLC,
successor in interest to NFL Properties, Inc.

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INTRODUCTION
On October 26, 2018, pursuant to the District Court’s 2016 order that it
would review de novo objections to conclusions of law of the Special Master
appointed to hear claim appeals in the NFL Concussion Litigation Settlement Program (while his findings of fact are final and binding), Appellant
filed an objection in the District Court to a claim appeal ruling. Specifically,
the Special Master had found that Appellant’s diagnosis of early dementia
(Level 1.5 Neurocognitive Impairment) rendered before the Effective Date
of the Settlement Agreement did not meet the diagnostic criteria required by
the Agreement to merit a monetary award.

In his objection, Appellant

argued that the Special Master erred by holding that the evaluation and
evidence for Appellant’s diagnosis must be “generally consistent” with the
diagnostic criteria used in the Settlement Program’s Baseline Assessment
Program after the Effective Date of the Settlement.
On July 2, 2019, the District Court rejected Appellant’s objection, holding that the terms of the Settlement Agreement plainly state that the “generally consistent” standard applies to all pre-Effective Date diagnoses,
including Appellant’s diagnosis. The Court further stated that the “decision
of the Court will be final and binding” pursuant to § 9.8 of the Settlement
Agreement.

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On July 29, 2019, Appellant filed a Notice of Appeal to this Court. In
response, the Clerk of this Court issued an August 6, 2019 Order stating that
all parties must file, within fourteen (14) days, written responses addressing
this Court’s authority to review the District Court’s July 2, 2019 Order. This
Memorandum responds to that Order.
ARGUMENT
The NFL Parties respectfully submit that there is no jurisdiction for
this Court to review the District Court’s decision rejecting Appellant’s
misguided interpretation of the Settlement Agreement.
As a general matter, notwithstanding Section 9.8 of the Settlement
Agreement, which states that for claim appeal determinations the “decision
of the Court will be final and binding,” this Court has authority to review a
district court’s conclusion of law, including on an issue of interpretation of a
settlement agreement’s terms in a settlement program such as this, under
the collateral order doctrine (28 U.S.C. § 1292(a)(1)).
Under the collateral order doctrine, an appeal is proper if the district
court order: (1) “conclusively determines the disputed question”; (2) “resolves an important issue that is completely separate from the merits of the
dispute”; and (3) “is effectively unreviewable on appeal from a final judgment.” In re Diet Drugs (Phentermmine/Fenfluramine/Dexfenfluramine)
Prod. Liab. Litig., 418 F.3d 372, 376 (3d Cir. 2005) (quoting In re Ford Motor

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Co., 110 F.3d 954, 958 (3d Cir. 1997)); see In re Deepwater Horizon, 793 F.3d
479, 484 (5th Cir. 2015) (stating “‘[i]mportance’ has sometimes been characterized as a discrete fourth requirement and other times been wrapped up in
an analysis of both the second and third requirements”). In the Deepwater
Horizon Settlement Program, for example, the Fifth Circuit exercised
jurisdiction under the collateral order doctrine to hear appeals when settlement interpretation disputes involved an accounting methodology that
potentially affected “thousands of claimants” and “hundreds of millions of
dollars” in recovery framework (732 F.3d 326, 332 n.3, 345 (5th Cir. 2013)),
final rules governing discretionary review of internal appeal determinations
that had substantial, settlement-wide ramifications as governing all future
reviews by the district court (785 F.3d 986, 989 (5th Cir. 2015)), and when the
interpretive issue concerned whether donations and grants qualified as
revenue for nonprofit organizations for purposes of calculating loss (785 F.3d
1003, 1006 (5th Cir. 2015)).
Here, although theoretically the legal issue of whether the “generally
consistent” standard applies to pre-Effective Date claims could be an important issue affecting operation of the Settlement Program, that “interpretive” issue, in fact, is a non-issue manufactured by one Claimant – Appellant
– through a strained reading of the Settlement Agreement that lacks any
basis in its language.

As the District Court explained, the Settlement

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Agreement “plainly state[s]” that the “generally consistent” standard applies
to pre-Effective Date claims. See July 2, 2019 Order at 2. There is no colorable argument to the contrary, as the District Court found three separate
bases in the Settlement Agreement that each alone, and certainly together,
makes any alternative reading of the Agreement wholly without merit. Id. at
3. Tellingly, while over 1,900 claimants have asserted pre-Effective Date
diagnoses,1 and scores of these claims have been, as required, subject to the
generally consistent standard and denied, Appellant is the only claimant to
have filed an objection in the District Court and appealed to this Court on
that basis.
Accordingly, far from presenting an “important” interpretive dispute
for this Court’s review, this appeal presents a frivolous one that falls far
short of the collateral order doctrine’s stringent requirements. See In re
Deepwater Horizon, 793 F.3d at 487 (summarizing that the Fifth Circuit
exercised the doctrine only when the issue involved “the right to an interpretation of the Settlement Agreement on an issue with a serious impact on the
effective and fair administration of the settlement”); see also Sec’y U.S. Dep’t
of Labor v. Koresko, 646 F. App’x 230, 248 (3d Cir. 2016) (“The collateral
order doctrine allows appeals from district court orders that meet a ‘strinSee August 12, 2019 NFL Settlement Program Summary Report, Section 5, https://www.nflconcussionsettlement.com/Docs/8_12_19_report.pdf.
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gent’ standard.”). Should this appeal nevertheless proceed, the NFL Parties
reserve all rights to demand costs and damages. See Fed. R. App. P. 38
(permitting a Court of Appeals to “award just damages and single or double
costs to the appellee” for frivolous appeals); see also Rouse v. II-VI Inc., 658
Fed. Appx. 21, 24 (3d Cir. 2016) (explaining that “an appeal is frivolous when,
viewed objectively, it is wholly without merit, i.e. when there is no ‘colorable
argument’ in support of the appeal”); Nagle v. Alspach, 8 F.3d 141, 145 (3d
Cir. 1993) (awarding Rule 38 damages where “there was no possibility of
success”).
Finally, to the extent Appellant seeks to challenge the Special Master’s
underlying findings of fact in his claim appeal denial – as adopted by the
District Court – those findings are non-reviewable as final and binding
pursuant to the District Court’s July 13, 2016 order appointing the Special
Master to hear claim appeals. See District Court Order (July 13, 2016), Doc.
No. 6871. As that Order states, the parties stipulated that, if an appeal is
referred to the Special Master, pursuant to Fed. R. Civ. P. 53(f)(3)(B), “the
factual determinations of the Master(s) will be final and binding.” See Fed.
R. Civ. Proc. Rule 53(f)(3)(B) (stating that the court “must decide de novo all
objections to findings of fact made or recommended by a master, unless the
parties, with the court’s approval, stipulate that . . . the findings of a master
. . . will be final”) (emphasis added); In re Bayside Prison Litig., 419 F.

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App’x 301, 303 (3d Cir. 2011) (“As the parties specifically agreed to be bound
by the Special Master’s findings of fact . . . those findings are unreviewable
by this court or by the district court.”); see also Settlement Agreement § 9.8
(for individual claim appeal determinations, “[t]he decision of the [District]
Court will be final and binding”). For this reason, Appellant did not – and he
could not – contest the Special Master’s fact determinations when objecting
to the District Court. Nor may he do so here, as those factual findings are
final and binding.
CONCLUSION
For the reasons above, the NFL Parties respectfully submit that this
Court lacks jurisdiction over this appeal.

Respectfully submitted,
s/ Brad S. Karp
BRAD S. KARP
LYNN B. BAYARD
BRUCE BIRENBOIM
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, New York 10019
(212) 373-3000
AUGUST 20, 2019

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CERTIFICATE OF BAR MEMBERSHIP
I, Brad S. Karp, counsel for the NFL Parties, hereby certify pursuant
to Third Circuit Rule 28.3(d) that I am a member in good standing of the Bar
of the United States Court of Appeals for the Third Circuit.

s/ Brad S. Karp
BRAD S. KARP
AUGUST 20, 2019

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CERTIFICATE OF COMPLIANCE WITH WORD LIMITS
I hereby certify that:
1.

This brief complies with the type-volume limitation of Fed. R.

App. P. 32(a)(7)(B) because it contains 1623 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(f);
2.

This brief complies with the typeface requirements of Fed. R.

App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6)
because it has been prepared in a proportionally spaced typeface using
Microsoft Word in 14-point font;
3.

The electronic copy of this brief is filed using this Court’s

CM/ECF system; and
4.

The electronic copy of this brief filed using this Court’s CM/ECF

system was scanned for viruses and no viruses were detected.

s/ Brad S. Karp
BRAD S. KARP
AUGUST 20, 2019

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CERTIFICATE OF SERVICE
I, Brad S. Karp, counsel for the NFL Parties and a member of the Bar
of this Court, certify that, on August 20, 2019, an electronic copy of this
Memorandum was filed with the Clerk of Court using the CM/ECF system.
I further certify that all parties required to be served have been served.
s/ Brad S. Karp
BRAD S. KARP