Case: 19-3149

Document: 003113374560

Page: 1

Date Filed: 10/11/2019

No. 19-3149

United States Court of Appeals
For the Third Circuit
IN RE THRIVEST SPECIALTY FUNDING LLC
(Related to In re National Football League Players’ Concussion Injury Litigation,
Eastern District of Pennsylvania, No. 2:12-md-02323-AB)

CLASS COUNSEL’S ANSWER TO PETITIONER
THRIVEST SPECIALTY FUNDING LLC’S
PETITION FOR WRIT OF MANDAMUS

Christopher A. Seeger
SEEGER WEISS LLP
55 Challenger Road
6th Floor
Ridgefield Park, NJ
07660
(973) 639-9100

Scott Alan George
SEEGER WEISS LLP
1515 Market Street
Suite 1380
Philadelphia, PA 19102
(215) 564-2300

Diogenes P. Kekatos
SEEGER WEISS LLP
77 Water Street
8th Floor
New York, NY 10005
(212) 584-0700

Class Counsel
Samuel Issacharoff
40 Washington Square South, 411J
New York, NY 10012
Tel: (212) 998-6580
si13@nyu.edu
Special Counsel for the Plaintiff Settlement Class

 Case: 19-3149

Document: 003113374560

Page: 2

Date Filed: 10/11/2019

TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
ARGUMENT .............................................................................................................5
THE COURT SHOULD DENY THRIVEST’S PETITION FOR WRIT OF
MANDAMUS .........................................................................................................5
A. Applicable Standards ........................................................................................5
B. Thrivest Is Not Entitled to Mandamus Relief ..................................................6
a. The District Court Acted Within Its Discretion, and Fully and Faithfully
Followed This Court’s Mandate ...................................................................6
b. Petitioner Should Have Filed a Motion with the District Court ...................7
c. Thrivest Has Not Established Irreparable Injury ..........................................8
d. Thrivest Has No Right to a Writ of Mandamus ..........................................10
CONCLUSION ........................................................................................................11

i

 Case: 19-3149

Document: 003113374560

Page: 3

Date Filed: 10/11/2019

TABLE OF AUTHORITIES
Page
Cases
Arthur Young & Co. v. U. S. Dist. Court,
549 F.2d 686 (9th Cir. 1977) ................................................................................10
Borntrager v. Stevas,
772 F.2d 419 (8th Cir. 1985) ..................................................................................8
Commc’n Workers of Am., AFL-CIO v. AT & T,
932 F.2d 199 (3d Cir. 1991) ...................................................................................9
First Jersey Sec., Inc. v. Bergen,
605 F.2d 690 (3d Cir. 1979) ...................................................................................7
FTC v. Standard Oil Co. of Cal.,
449 U.S. 232 (1980) ................................................................................................9
In re Chambers Dev. Co.,
148 F.3d 214 (3d Cir. 1998) ...............................................................................5, 6
In re Flood,
500 F. App’x 105 (3d Cir. 2012) ............................................................................8
In re Machne Israel, Inc.,
48 F. App’x 859 (3d Cir. 2002) ..............................................................................8
In re McGraw-Hill Global Educ. Holdings, LLC,
909 F.3d 48 (3d Cir. 2018) ............................................................................ 5, 6, 7
In re Nat’l Football League Players’ Concussion Injury Litig.,
923 F.3d 96 (3d Cir. 2019) ........................................................................ 1, 3, 8, 9
In re Roberts,
178 F.3d 181 (3d Cir. 1999) ...................................................................................5
ii

 Case: 19-3149

Document: 003113374560

Page: 4

Date Filed: 10/11/2019

In re United States,
884 F.3d 830 (9th Cir. 2018) ..................................................................................8
Mallard v. U.S. Dist. Ct. for the So. Dist. of Iowa,
490 U.S. 296 (1989) ................................................................................................5
Mussina v. Cavazos,
61 U.S. 280 (1857) ..................................................................................................8
Whitehouse v. Illinois Cent. R.R. Co.,
349 U.S. 366 (1955) ..............................................................................................10
Will v. Calvert Fire Ins. Co.,
437 U.S. 655 (1978) ..............................................................................................11
Will v. United States,
389 U.S. 90 (1967) ..................................................................................................1

iii

 Case: 19-3149

Document: 003113374560

Page: 5

Date Filed: 10/11/2019

INTRODUCTION
Mandamus is “among the most potent weapons in the judicial arsenal.” Will
v. United States, 389 U.S. 90, 107 (1967). Through its petition for writ of mandamus
(“Petition”), Thrivest Specialty Funding LLC (“Thrivest” or “Petitioner”) seeks to
have this Court review the day-to-day administration of the settlement in the
National Football League Players’ Concussion Injury Litigation (“NFL
Settlement”). As the Court recently made clear in addressing purported assignments
of Monetary Awards under the NFL Settlement, “the District Court retained broad
authority to administer the settlement,” including the authority to declare “void,
valid and of no force and effect” any prohibited assignment provisions. In re Nat’l
Football League Players’ Concussion Injury Litig., 923 F.3d 96, 109, 111 (3d Cir.
2019).
As to the ultimate resolution of various claims by third-party lenders against
individual class members, the Court stated that “[w]e express no opinion as to the
ultimate enforceability of any of the cash advance agreements.” Id. at 112. Further,
the Court appreciated that any distinction between “true” assignments (where the
funder “step[ped] into the shoes of the payer and seek[s] funds directly from the
settlement fund”) and a “false” one (where no legal claim is asserted directly from
the settlement fund) is ultimately irrelevant; the outcome “is the same: the Special

 Case: 19-3149

Document: 003113374560

Page: 6

Date Filed: 10/11/2019

Master will not enforce any purported assignment.” Id. at 110 n.13 (emphasis
added).
Any efforts by a funder to enforce a funding agreement (with either a true or
false assignment) would be asserted as a matter of individual contract and made
before the proper arbitral or other forum and subject to the full range of defenses,
including “whether any individual agreement contains a true assignment and
whether there remain any enforceable rights . . . after any true assignment is voided,
. . . [as well as] lack[ ] [of] capacity to contract, . . . . issues of unconscionability,
fraud or usury . . . .” Id. at 112.
The district court has faithfully and fully followed the mandate of the Court
from that appeal. In a recent Notice, on September 27, 2019, “in light of the concern
expressed in [the instant] mandamus petition,” the district court summarized this
Court’s mandate, and concluded that the “import of the Third Circuit Decision is
clear: the Court has the authority to prohibit the Claims Administrator from paying
third-party funders directly from the Settlement Fund, but the overall enforceability
of any third-party funder agreements must be litigated or arbitrated outside of the
claims administration context. The Court and Claims Administrator have followed
the Third Circuit’s holding.”1 Ex. A (ECF No. 10858 at 2, ¶ 4 (Sep. 27, 2019)).

1

In this Notice, the district court also directed the Claims Administrator to
undertake review of “its guidance and rules regarding third-party funder
2

 Case: 19-3149

Document: 003113374560

Page: 7

Date Filed: 10/11/2019

The district court’s pronouncement is consistent with this Court’s insistence
on drawing a line between claims against funds that are still part of the class
resolution process and funds that have been paid to individual class members. While
the funds are still subject to being awarded by the court, no third party may claim an
assignment that would interfere with payment being made to a class member. Once
the money is paid to a class member, any lender or other creditor may make any
claims that it believes may be legally recognized in any forum of competent
jurisdiction.
The most significant example of the district court’s fulfillment of the mandate
of the Court is the arbitration between Thrivest and the one Retired NFL Football
Player whose funding agreement Thrivest originally brought to this Court. In re
Nat’l Football Players’ Concussion Injury Litig., 923 F.3d at 105 n.6. On remand,
Thrivest began arbitration of its funding agreement with the Retired NFL Player.
Having obtained an Interim Arbitration Award directing that the Retired NFL
Football Player escrow money pending a final decision and Thrivest filed an
Emergency Motion to Confirm the Interim Arbitration Award. Ex. B (2:18-cv-

agreements and propose a streamlined and concise version that is more userfriendly” which will “avoid any possibility of confusion.” Ex. A, ¶ 5. In its
Answer to Petitioner Thrivest Specialty Funding LLC’s Petition for Writ of
Mandamus, the Claims Administrator explains actions underway to streamline and
clarify the guidance and rules, and provides a more complete explanation about the
reason for and propriety of the current guidance and rules singled out by Thrivest
in its Petition.
3

 Case: 19-3149

Document: 003113374560

Page: 8

Date Filed: 10/11/2019

01877-AB, ECF No. 21 (June 14, 2019)). The district court granted Thrivest’s
Emergency Motion to Confirm an Interim Arbitration Award, denied the Retired
NFL Player’s related Motion to Vacate the Interim Arbitration Award, and held a
Civil Contempt Hearing on October 10, 2019, on the matter of the Retired NFL
Football Player’s failure to comply with the Interim Arbitration Award. Exs. C
(2:18-cv-01877-AB, ECF No. 25 (July 1, 2019)) and D (2:18-cv-01877-AB, ECF
No. 38 (Sept. 24, 2019)).
Simply stated, this Court’s mandate has been fulfilled.
There is no unfinished business related to the Court’s mandate before the
district court. On July 12, 2019, however, Thrivest submitted a letter to the district
court, requesting a conference to discuss generalized concerns that it had with some
of the notices and procedures used by the Claims Administrator as part of its efforts
to ensure that no prohibited assignment agreements or provisions were
acknowledged by it.

Neither Thrivest’s request nor its reply to the Claim’s

Administrator’s response to the request for a conference (ECF Nos. 10734, 10806)
set forth the list of demands that it now makes to the Court in the Petition. On August
15, 2019, the district court denied Thrivest’s request for a conference. ECF No.
10807. Thrivest sought no further relief from the district court, and never filed a
formal motion seeking the relief it now demands by way of mandamus.
Thrivest’s Petition should accordingly be denied.
4

 Case: 19-3149

Document: 003113374560

Page: 9

Date Filed: 10/11/2019

ARGUMENT
THE COURT SHOULD DENY THRIVEST’S
PETITION FOR WRIT OF MANDAMUS
Thrivest cannot satisfy the heavy standards to justify the extraordinary remedy
of writ of mandamus.
A.

Applicable Standards
So as not to become an alternative route to interlocutory appeal, mandamus

jurisdiction is “exceedingly narrow” and allows for far “less opportunity to correct
district court error . . . and less opportunity to provide guidance for future cases.” In
re Chambers Dev. Co., 148 F.3d 214, 226-27 (3d Cir. 1998). As the petitioner,
Thrivest must establish clear entitlement to a writ of mandamus. Mallard v. U.S.
Dist. Ct. for the So. Dist. of Iowa, 490 U.S. 296, 309 (1989). “Even reversible error
by itself is not enough to obtain mandamus.” In re McGraw-Hill Global Educ.
Holdings, LLC, 909 F.3d 48, 57 (3d Cir. 2018) (Smith, J.). Rather, mandamus is an
“extraordinary remedy” for which the petitioner must demonstrate (1) a “clear abuse
of discretion or usurpation of the judicial power,” (2) lack of adequate alternative
means to obtain the relief sought, and (3) a “clear and indisputable” right for the
issuance of a writ. In re Roberts, 178 F.3d 181, 183 (3d Cir. 1999). In addition to
these factors, this Court considers the likelihood of irreparable injury. McGrawHill, 909 F.3d at 57. Even when presented with those rare circumstances that may

5

 Case: 19-3149

Document: 003113374560

Page: 10

Date Filed: 10/11/2019

rise to the level necessary for the grant of mandamus, the Court retains the discretion
to deny the writ. Id.
B.

Thrivest Is Not Entitled to Mandamus Relief
Thrivest cannot establish its entitlement to mandamus relief under any of the

criteria that this Court has articulated.
a. The District Court Acted Within Its Discretion, and Fully and
Faithfully Followed This Court’s Mandate
While it is “axiomatic” that a district court must proceed in accordance with
a mandate, the district court remains “free to make any order or direction in further
progress of the case, not inconsistent with [the Court’s] decision.” In re Chambers
Dev. Co., 148 F.3d at 225. Although Thrivest may not agree with the minutiae of
the implementation of rules and procedures related to potential assignments, it
provides no basis to grant its Petition. A district court must be free to proceed
“courageously in exercising [its] discretion” after remand. In re McGraw-Hill, 909
F.3d at 57 (citations and quotations omitted).
Notably, the district court has not held that any assignment agreements or any
assignment provisions are unenforceable since this Court’s mandate issued. On the
contrary, the district court has left such determinations to arbitrators (when an
assignment includes an arbitral provision) and acted to enforce arbitration awards
that may issue, even when the assignment agreements had been determined. All that
the district court has done is prohibit the Claims Administrator from making any
6

 Case: 19-3149

Document: 003113374560

Page: 11

Date Filed: 10/11/2019

payments directly to funders, and any such notices, rules, or determinations made in
the NFL Settlement are only for the purposes of the NFL Settlement. Indeed, the
district court held a contempt hearing in connection with a class member’s failure to
escrow funds in accordance with an Arbitrator’s Interim Arbitration Award. Ex. D.
Ignoring the full extent of the district court’s compliance with the mandate,
Thrivest argues that certain notices and rules should be revised, a matter that was
neither before this Court earlier nor mandated by its decision. Even if the Court’s
mandate were construed as expansively as Thrivest’s Petition requires, such
administrative matters are not tantamount to an abuse of discretion necessary for
mandamus. “More than showing that the court misinterpreted the law, misapplied
it to the facts, or otherwise engaged in an abuse of discretion” is necessary. In re
McGraw-Hill, 909 F.3d at 57 (citations and quotation omitted).
b. Petitioner Should Have Filed a Motion with the District Court
Mandamus may provide a remedy only if “there are no other adequate means
of relief.” First Jersey Sec., Inc. v. Bergen, 605 F.2d 690, 700 (3d Cir. 1979) (citing
cases). Thrivest submitted to the district court, and only by way of a letter, merely
a request for a conference to discuss generalized concerns with the handling of
possible assignments. The district court declined Thrivest’s request. Thrivest is not
now seeking mandamus relief that a conference be held. Rather, Thrivest is now
seeking specific revisions to certain notices and rules and other corrective action.

7

 Case: 19-3149

Document: 003113374560

Page: 12

Date Filed: 10/11/2019

Thrivest never filed a formal motion seeking the relief that it now demands from this
Court.
Having never filed such a motion below with the district court, Thrivest
cannot seek mandamus from the Court. E.g., In re Flood, 500 F. App’x 105, 109
(3d Cir. 2012) (denying mandamus where petitioner failed to show he had no
alternative remedy or other adequate means to obtain relief he desired); In re Machne
Israel, Inc., 48 F. App’x 859, 861 (3d Cir. 2002) (same); see also Mussina v.
Cavazos, 61 U.S. 280, 290 (1857) (“Had the appeal been prayed in open court, and
entered upon the record, the judge below might well have refused it”) (denying
mandamus); In re United States, 884 F.3d 830, 835 (9th Cir. 2018) (“Absent any
discovery order from the district court, or even any attempt to seek one, however,
the defendants have not shown that they have no other means of obtaining relief
from burdensome or otherwise improper discovery”); Borntrager v. Stevas, 772 F.2d
419, 420 (8th Cir. 1985) (availability of motion to Supreme Court regarding the
conduct of its clerk “mandates denial of mandamus relief”).
c. Thrivest Has Not Established Irreparable Injury
The Court expressly mandated that the enforceability of funding agreements
was subject to all available defenses, including that such an agreement may be
prohibited, at least in part, if it includes an improper assignment. In re Nat’l Football

8

 Case: 19-3149

Document: 003113374560

Page: 13

Date Filed: 10/11/2019

Players’ Concussion Injury Litig., 923 F.3d at 112. Thrivest characterizes class
members’ efforts to raise such a defense as an “irreparable injury.”
Putting to one side that class members’ raising of defenses cannot be laid at
the feet of the district court, which has not sanctioned class members’ resistance to
the decisions of arbitrators, as Thrivest acknowledges, “arbitrators will ultimately
decide those issues [of enforceability], but, either way, both Thrivest and the class
members are increasingly at risk as these disputes continue.” Petition at 12. The
“inherent costs of litigation is not so consequential a harm,” however, that justifies
mandamus. Commc’n Workers of Am., AFL-CIO v. AT & T, 932 F.2d 199, 210 (3d
Cir. 1991); see also FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 244 (1980)
(“Mere litigation expense, even substantial and unrecoupable cost, does not
constitute irreparable injury.”) (citation omitted).
This Court made no finding as to any particular agreement before it, and
expected that such defenses would play out in the adversarial process, such as
through arbitration. As Thrivest proceeds in its arbitration of funding disputes with
class members (if there are more than the one that Thrivest discusses), the
availability of such a defense will become developed. At this time, Thrivest is
unable to identify any clear and definable injury to support its Petition, and speaks
only in terms of possibilities and mere likelihoods: the communications that it seeks
to challenge “are likely to influence class members and ignore their contractual
9

 Case: 19-3149

Document: 003113374560

Page: 14

Date Filed: 10/11/2019

obligations,” the Claims Administrator’s “communications are likely creating
confusion” and “as such, they are likely to cause irreparable injury.” Petition at 11.
Currently, the contractual obligations have yet to be determined. Moreover, Thrivest
has not even identified a single funding agreement that may be subject to such
procedures or notices in the future. Mandamus jurisdiction requires more than mere
possibilities of harm. See Whitehouse v. Illinois Cent. R.R. Co., 349 U.S. 366, 373
(1955) (speculative injuries do not warrant resort to mandamus, which is “governed
by equitable considerations and is to be granted only in the exercise of sound
discretion”); Arthur Young & Co. v. U. S. Dist. Court, 549 F.2d 686, 692 (9th Cir.
1977) (“[T]he proponent of the writ must also demonstrate that the harm will, in all
likelihood occur, absent the writ.”).
d. Thrivest Has No Right to a Writ of Mandamus
Thrivest does not address the requirement that the right to a writ of mandamus
be “clear and irrefutable.” The only right that Thrivest can be said to have as a result
of the mandate is the right to test the enforceability of its funding agreements before
an arbitrator. By its own reports, it is doing that – unimpeded by the district court.
Thrivest obtained no right, let alone a “clear and irrefutable” right, that certain
procedures and notices be used in the NFL Settlement. Rather, such matters remain
within the discretion of the district court and the Claims Administrator in
implementing the NFL Settlement. “Where a matter is committed to the discretion

10

 Case: 19-3149

Document: 003113374560

Page: 15

Date Filed: 10/11/2019

of a district court, it cannot be said that a litigant's right to a particular result is ‘clear
and indisputable.’” Will v. Calvert Fire Ins. Co., 437 U.S. 655, 665-66 (1978).
CONCLUSION
For all of the foregoing reasons, the Court should deny the Petition.
Dated: October 11, 2019
Respectfully submitted,
/s/ Christopher A. Seeger
Christopher A. Seeger
(NY 2425304)
(NJ 042631990)
Seeger Weiss LLP
55 Challenger Road
6th Floor
Ridgefield Park, NJ 07760
(212) 584-0700
cseeger@seegerweiss.com

Scott Alan George
Seeger Weiss LLP
1515 Market Street
Suite 1380
Philadelphia, PA 19102
(215) 564-2300
sgeorge@seegerweiss.
com

Diogenes P. Kekatos
Seeger Weiss LLP
77 Water Street
8th Floor
New York, NY 10005
(212) 584-0700
dkekatos@seegerweiss.
com

Class Counsel
Samuel Issacharoff
40 Washington Square South
411J
New York, NY 10012
Tel.: (212) 998-6580
Si13@nyu.edu
Special Counsel for the Plaintiff Settlement Class

11

 Case: 19-3149

Document: 003113374560

Page: 16

Date Filed: 10/11/2019

CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g), the undersigned hereby certifies that this
Answer to Petition for Writ of Mandamus complies with the type-volume limitations
prescribed by this Court’s September 26, 2019 Order (Doc. 003113355524). This
Answer is not more than 15 double-spaced pages.

/s/ Christopher A. Seeger
Christopher A. Seeger (NY 2425304;
NJ 042631990)

12

 Case: 19-3149

Document: 003113374560

Page: 17

Date Filed: 10/11/2019

CERTIFICATE OF BAR MEMBERSHIP
Pursuant to Third Circuit Local Rule 28.3(d), I certify that I am a member of
the Bar of this Court.
CERTIFICATE OF VIRUS SCAN
I certify, pursuant to Third Circuit Local Rule 31.1(c), that a virus detection
program has been run on this file and that no virus was detected. The virus detection
program utilized was Trend Micro™ OfficeScan™ Agent, version XG.

/s/ Christopher A. Seeger
Christopher A. Seeger (NY 2425304; NJ
042631990)

13

 Case: 19-3149

Document: 003113374560

Page: 18

Date Filed: 10/11/2019

CERTIFICATE OF SERVICE
I certify that on this date, October 11, 2019, I caused the foregoing Answer to
Petitioner Thrivest Specialty Funding LLC’s Petition for Writ of Mandamus to be
electronically filed with the Clerk of the Court for the U.S. Court of Appeals for the
Third Circuit using the appellate CM/ECF system. Participants in the case who are
registered CM/ECF users will be served by the appellate CM/ECF system.
Dated: October 11, 2019
/s/ Christopher A. Seeger
Christopher A. Seeger (NY 2425304; NJ
042631990)

14

 Case: 19-3149 Document: 003113374560 Page: 19 Date Filed: 10/11/2019

EXHIBIT A

Case:Case
19-3149
2:12-md-02323-AB
Document: 003113374560
Document 10858
Page:
Filed
2009/27/19
Date Filed:
Page10/11/2019
1 of 3

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

September 27, 2019

Anita B. Brody, J.
NOTICE

In light of the concern expressed in a recent mandamus petition filed on September 19,
2019,1 the Court issues the following clarification regarding the legal status of third-party funder
agreements:
1.

On December 8, 2017, the Court issued an Explanation and Order (“Assignment

Order”) providing that under Section 30.1 of the Settlement Agreement, any agreement entered
into by a Class Member “that assigned or attempted to assign any monetary claims . . . is void,
invalid and of no force and effect.” Assignment Order at 5, ECF No. 9517.
2.

On April 26, 2019, the Third Circuit affirmed the Assignment Order in part and

reversed the Assignment Order in part. In re Nat’l Football League Players’ Concussion Injury

1

See Petition for Writ of Mandamus, In re: Thrivest Specialty Funding, LLC, No. 19-3149 (3d Cir. 2019).

1

 Case:Case
19-3149
2:12-md-02323-AB
Document: 003113374560
Document 10858
Page:
Filed
2109/27/19
Date Filed:
Page10/11/2019
2 of 3

Litig., 923 F.3d 96 (3d Cir. 2019). The Third Circuit affirmed that “any true assignments
contained within [third-party] cash advance agreements—that is, contractual provisions that
allowed the lender to step into the shoes of the player and seek funds directly from the settlement
fund—were void ab initio.” Id. at 110. The Third Circuit reversed the Assignment Order to the
extent that it “void[ed] the agreements in their entirety.” Id. at 111.
3.

The Third Circuit “express[ed] no opinion as to the ultimate enforceability of any

of the cash advance agreements,” but held that any such determination must occur “outside of the
NFL claims administration context.” Id. at 112. The Third Circuit “in no way suggest[ed] that
an[y] individual agreement is enforceable,” id. at 113, and “presume[d] that the full array of
standard contract defenses will also apply in any subsequent litigation regarding these
agreements. . . . [S]ome of the class members are cognitively impaired, and it is possible that
some of them lacked the capacity to contract at the time they entered into the agreements,” id. at
112. Further, “[t]here may also be issues of unconscionability, fraud, or usury based on the high
effective interest rates in the agreements.” Id.
4.

The import of the Third Circuit decision is clear: the Court has the authority to

prohibit the Claims Administrator from paying third-party funders directly from the Settlement
Fund, but the overall enforceability of any third-party funder agreements must be litigated or
arbitrated outside of the claims administration context. The Court and Claims Administrator
have followed the Third Circuit’s holding.
2

 Case:Case
19-3149
2:12-md-02323-AB
Document: 003113374560
Document 10858
Page:
Filed
2209/27/19
Date Filed:
Page10/11/2019
3 of 3

5.

To avoid any possibility for confusion, the Court directs the Claims Administrator

to review its guidance and rules regarding third-party funder agreements and propose a
streamlined and concise version that is more user-friendly.
s/Anita B. Brody
________________________________
ANITA B. BRODY, J.

Copies VIA ECF: 9/27/2019

3

 Case: 19-3149 Document: 003113374560 Page: 23 Date Filed: 10/11/2019

EXHIBIT 

Case: 19-3149
Case 2:18-cv-01877-AB
Document: 003113374560
Document 21 Page:
Filed 06/14/19
24
DatePage
Filed:1 10/11/2019
of 1

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-1 Page:
Filed25
06/14/19
Date Page
Filed: 110/11/2019
of 8

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-1 Page:
Filed26
06/14/19
Date Page
Filed: 210/11/2019
of 8

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-1 Page:
Filed27
06/14/19
Date Page
Filed: 310/11/2019
of 8

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-1 Page:
Filed28
06/14/19
Date Page
Filed: 410/11/2019
of 8

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-1 Page:
Filed29
06/14/19
Date Page
Filed: 510/11/2019
of 8

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-1 Page:
Filed30
06/14/19
Date Page
Filed: 610/11/2019
of 8

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-1 Page:
Filed31
06/14/19
Date Page
Filed: 710/11/2019
of 8

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-1 Page:
Filed32
06/14/19
Date Page
Filed: 810/11/2019
of 8

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-2 Page:
Filed33
06/14/19
Date Page
Filed: 110/11/2019
of 4

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-2 Page:
Filed34
06/14/19
Date Page
Filed: 210/11/2019
of 4

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-2 Page:
Filed35
06/14/19
Date Page
Filed: 310/11/2019
of 4

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-2 Page:
Filed36
06/14/19
Date Page
Filed: 410/11/2019
of 4

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 37
06/14/19
DatePage
Filed:110/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 38
06/14/19
DatePage
Filed:210/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 39
06/14/19
DatePage
Filed:310/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 40
06/14/19
DatePage
Filed:410/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 41
06/14/19
DatePage
Filed:510/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 42
06/14/19
DatePage
Filed:610/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 43
06/14/19
DatePage
Filed:710/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 44
06/14/19
DatePage
Filed:810/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 45
06/14/19
DatePage
Filed:910/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 06/14/19
46
DatePage
Filed:1010/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 06/14/19
47
DatePage
Filed:1110/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 06/14/19
48
DatePage
Filed:1210/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 06/14/19
49
DatePage
Filed:1310/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 06/14/19
50
DatePage
Filed:1410/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 06/14/19
51
DatePage
Filed:1510/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 06/14/19
52
DatePage
Filed:1610/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 06/14/19
53
DatePage
Filed:1710/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 06/14/19
54
DatePage
Filed:1810/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 06/14/19
55
DatePage
Filed:1910/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 06/14/19
56
DatePage
Filed:2010/11/2019
of 21

 Case:Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-3 Page:
Filed 06/14/19
57
DatePage
Filed:2110/11/2019
of 21

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-4 Page:
Filed58
06/14/19
Date Page
Filed: 110/11/2019
of 3

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-4 Page:
Filed59
06/14/19
Date Page
Filed: 210/11/2019
of 3

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-4 Page:
Filed60
06/14/19
Date Page
Filed: 310/11/2019
of 3

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-5 Page:
Filed61
06/14/19
Date Page
Filed: 110/11/2019
of 1

 Case: Case
19-3149
2:18-cv-01877-AB
Document: 003113374560
Document 21-6 Page:
Filed62
06/14/19
Date Page
Filed: 110/11/2019
of 1

 Case: 19-3149 Document: 003113374560 Page: 63 Date Filed: 10/11/2019

EXHIBIT 

Case: 19-3149
Case 2:18-cv-01877-AB
Document: 003113374560
Document 25 Page:
Filed 07/01/19
64
DatePage
Filed:1 10/11/2019
of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THRIVEST SPECIALTY FUNDING,
LLC
Plaintiff,
v.
WILLIAM E. WHITE,
Defendant.

:
:
:
:
:
:
:

CIVIL ACTION
No. 18-1877

ORDER
AND NOW, this 1st day of July, 2019, it is ORDERED that:
•

Upon consideration of Thrivest’s Complaint to Compel Arbitration (ECF No. 1), this
action is STAYED in favor of arbitration. 1 The parties must advise the Court of the status
of this action upon completion of arbitration.

•

Thrivest’s Motion to confirm the Emergency Arbitrator’s Interim Award of Emergency
Relief (ECF No. 21) is GRANTED and White’s Application to Vacate the Interim
Award is DENIED (ECF No. 24). 2

1

Thrivest seeks to compel arbitration of a dispute arising out of the parties’ Non-Recourse Finance
Transaction, Sales and Purchase Agreement (the “Agreement”). White argues—in an affirmative defense
improperly characterized as a counterclaim—that arbitration should not be compelled because Thrivest
did not follow the Agreement’s pre-arbitration procedures. However, “‘procedural’ questions which grow
out of the dispute and bear on its final disposition’ are presumptively not for the judge, but for an
arbitrator, to decide.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002) (quoting John Wiley
& Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964)). See also John Wiley & Sons, 376 U.S. at 556-58
(holding that the issue of whether procedural conditions to arbitration have been met is a matter for the
arbitrator, not the court). Because White only raises a procedural question, namely, whether Thrivest
followed the Agreement’s pre-arbitration procedures, the dispute must go to arbitration.

2

Thrivest seeks confirmation of the arbitrator’s Interim Award of Emergency Relief, which
directed White to escrow a portion of the disputed funds. The Court may confirm this Interim Award
because it is a “temporary equitable order[ ] calculated to preserve assets or performance needed to make
a potential final award meaningful.” Pac. Reinsurance Mgmt. Corp. v. Ohio Reinsurance Corp., 935 F.2d
1019, 1023 (9th Cir. 1991).
“Under the terms of § 9 [of the FAA], a court ‘must’ confirm an arbitration award ‘unless’ it is
vacated, modified, or corrected ‘as prescribed’ in §§ 10 and 11 [of the FAA].” Hall St. Assocs., L.L.C. v.

 Case: 19-3149
Case 2:18-cv-01877-AB
Document: 003113374560
Document 25 Page:
Filed 07/01/19
65
DatePage
Filed:2 10/11/2019
of 2

•

Thrivest’s Motion to Seal its Motion to Confirm Arbitration Award (ECF No. 20) is
DENIED. 3

/s/ Anita B. Brody
ANITA B. BRODY, J.

COPIES VIA ECF 7.1.19

Mattel, Inc., 552 U.S. 576, 582 (2008) (quoting 9 U.S.C. § 9). White asks this Court to vacate the award
because the Emergency Arbitrator misapplied Rule 38(b) of the Commercial Arbitration Rules and
Mediation Procedures, which governs emergency relief. The Court may vacate the Interim Award on this
ground only if the arbitrator “so exceeded [his] powers, or so imperfectly executed them that a mutual,
final and definite award upon the subject matter submitted was not made.” 9 U.S.C. §10(a)(4). None of
the legal errors alleged by White meet this demanding standard.
White also argues that the Emergency Arbitrator did not have the authority under the Agreement
to order emergency relief. This is incorrect: Section 6(aa) of the Agreement states that “the parties agree
that the arbitrator shall have authority to grant injunctive or other forms of equitable relief to either party.”
3

Once a document is filed with the court and “becomes a judicial record, a presumption of access
attaches.” In re Avandia Mktg., Sales Practices and Prods. Liab. Litig., 924 F.3d 662, 672 (3d. Cir. 2019).
“The party seeking to overcome the presumption of access bears the burden of showing that the interest in
secrecy outweighs the presumption” and must show “that the disclosure will work a clearly defined and
serious injury to the party seeking closure.” Id. (internal quotation marks omitted). Thrivest fails to put
forth any injury it will suffer if its Motion remains a publicly accessible court record. Therefore, the
presumption of public access must prevail.

 Case: 19-3149 Document: 003113374560 Page: 66 Date Filed: 10/11/2019

EXHIBIT 

Case: 19-3149
Case 2:18-cv-01877-AB
Document: 003113374560
Document 38 Page:
Filed 09/24/19
67
DatePage
Filed:1 10/11/2019
of 1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THRIVEST SPECIALTY FUNDING,
LLC
Plaintiff,
v.
WILLIAM E. WHITE,
Defendant.

:
:
:
:
:
:
:

CIVIL ACTION
No. 18-1877

ORDER
AND NOW, this _24th __ day of September, 2019, it is ORDERED as follows:
1.

Upon consideration of the motions filed by Plaintiff (ECF No. 32, ECF No. 36)

and Defendant (ECF No. 35), responding to the Court’s Order issued on August 16, 2019 (ECF
No. 31), the Court concludes that Plaintiff’s Emergency Motion for Contempt (ECF No. 26) is
properly before the Court.
2.

A civil contempt hearing will be held on October 10, 2019, at 1:00pm Eastern

Standard Time in Courtroom 7-B on the 7th floor of the U.S. Courthouse, 601 Market Street,
Philadelphia, PA 19106. Defendant may arrange to appear by telephone for the hearing by
contacting Chambers at 215-597-3978 prior to the date of the hearing.

s/Anita B. Brody
_________
ANITA B. BRODY, J.

COPIES VIA ECF 9/24/2019