Case 2:12-md-02323-AB Document 10811 Filed 08/20/19 Page 1 of 5

IN 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

THIS DOCUMENT RELATES TO:

Hon. Anita B. Brody

ALL ACTIONS

August ___, 2019

Anita B. Brody, J.
EXPLANATION AND ORDER

Thirty-two Settlement Class Members (collectively, “the movants”) have filed a motion
seeking this Court’s intervention to stop multiple audits of claimants that purportedly violate the
Settlement Agreement. The Claims Administrator, BrownGreer PLC, submitted a response in
opposition.
Before addressing the merits of the motion, the Court would also like to take a moment to
discuss the importance of the audit program in the context of the NFL Concussion Settlement.
This Settlement program grew out of lawsuits filed by over 5,000 former football players and
their family members against the National Football League Foundation, and the NFL Properties
(LLC) (collectively, the “NFL Parties”). After several years of negotiations, and approval by this
Court and the Third Circuit, implementation of the Settlement began on January 7, 2017. All but
one of the opt-out litigants have settled, or are in the process of settling, his or her claims. Yet the
Court retains exclusive jurisdiction over the Settlement Agreement, for the next 63 years.
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This places the Court in relatively uncharted territory—what Yale Law School Professor
Judith Resnik has deemed “aggregation’s third phase.” See Judith Resnik, Reorienting the
Process Due: Using Jurisdiction to Forge Post-Settlement Relationships Among Litigants,
Courts, and the Public in Class and Other Aggregate Litigation, 92 N.Y.U. L. Rev. 1017, 10521067 (2017). In this third phase, the Court is guided not by Rule 23 or by much in the way of
case law, but by the terms of the Settlement Agreement and by judicial principles of fairness,
equity, and due process. The Court still engages in the judicial functions of interpreting the law
and adjudicating disputes, but now with the singular goal of implementing the Settlement
honorably. Every action of the Court is to ensure that every meritorious claim is paid—and that
only meritorious claims are paid.
From the beginning of this litigation and throughout the Class settlement process, the
Court has taken its role as the fiduciary of the class seriously. In exercising this role, the Court
approved a Settlement that has many elements favoring Class Members: the uncapped Settlement
fund has a lifetime of 65 years, and the substantial awards have no causation requirement, to
name a few. To receive these benefits, however, Class Members must follow a formal claims
process and meet certain evidentiary requirements. Safeguarding the integrity of this claims
process is crucial to implementing the Settlement honorably.
To this end, the Court, the Special Masters, and the Claims Administrator, in conjunction
with the parties, have taken significant steps to protect the integrity of the Settlement program. A
central piece of this is the audit program, through which the Claims Administrator reviews
claims to determine whether any intentional misrepresentation, omission, or concealment
occurred. The Settlement Agreement both delineates circumstances under which audits of claim

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packages are mandatory, and provides the Claims Administrator with broad discretion to develop
standards and procedures in furtherance of its mission. See Settlement Agreement §§ 10.3, 10.4.
In addition to defining certain mandatory audit triggers, the Settlement Agreement directs
the Claims Administrator, in consultation with Co-Lead Class Counsel and Counsel for the NFL
Parties, to “establish system-wide processes to detect and prevent fraud” in claim submissions.
Settlement Agreement § 10.4. Complying with this directive, the Claims Administrator
developed the Rules Governing the Audit of Claims (“Audit Rules”), which were adopted by the
Special Masters on January 26, 2018 and which are posted on the public Settlement Website.
These Audit Rules lay out additional “red flags” that may, in the Claims Administrator’s
discretion, trigger an audit.
Turning to the motion itself, I will not restate the facts, and instead rely on BrownGreer’s
able summary of the complex factual history leading to this motion. See ECF No. 10506. In sum,
however, the event the movants purport to object to—multiple audits of a single claim
package—did not occur here. While Brown Greer’s first audit of movants’ claims were pending,
the movants each filed new Diagnosing Physician Certifications, from new doctors, withdrawing
the qualifying diagnoses that were the subject of the first audit. Brown Greer did not complete an
audit of a claim record and then decide to re-audit that exact same record. Rather, when each
movant submitted a wholly new Diagnosing Physician Certification form—the defining element
of each claim package1—Brown Greer made an independent evaluation that these new
Diagnosing Physician Certifications again raised red flags that triggered the audit process. This is

The Settlement defines “Diagnosing Physician Certification” as “that document which a Settlement
Class Member . . . must submit . . . as part of a Claim Package.” Settlement Agreement § 2.1(gg). A
Diagnosing Physician Certification form is a physician’s sworn certification, based on examination of the
claimant and consideration of specific criteria defined by the Settlement, that a claimant has a diagnosis
compensable under the Settlement. Without a Diagnosing Physician Certification, there is in effect no
claim for compensation.
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plainly permitted by the Settlement Agreement. To say otherwise would permit an absurd result:
a claimant could evade audit review simply by waiting until after an audit has been initiated, and
only then filing fraudulent or questionable documents in support of his claim.
The Audit Rules, and BrownGreer’s application of these rules to the movants’ claims, are
fully consistent with the text of the Settlement Agreement. Even if there were any ambiguity, the
Court must interpret this in light of its duties to serve as the fiduciary of the class, and to ensure
that only meritorious claims are paid. Imposing a rigid and narrow reading of the text of the
Settlement Agreement would hamstring the claims process, prevent both the payment of
meritorious claims and the detection of grounds for non-payment, and limit this Court’s ability to
continue to ensure justice is done to all parties to the Settlement. The honorable implementation
of the Settlement requires allowing the Claims Administrator the discretion to initiate a new
audit whenever a claimant changes an element of a claim package.

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ORDER
AND NOW, this __20th __ day of August, 2019, it is ORDERED that the Motion for
Court Intervention (ECF No. 10434) is DENIED.
s/Anita B. Brody
________________________________
ANITA B. BRODY, J.

Copies VIA ECF 8/20/2019

O:\ABB 2019\L - Z\NFL order on motion to stop multiple audits.docx

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