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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
THIS DOCUMENT RELATES TO: Hon. Anita B. Brody
ALL ACTIONS
April 22, 2015 Anita B. Brody, J.
I. Background and Procedural History ...................................................................................... 4
A. Initial Lawsuits and Consolidation ..................................................................................... 4
B. Motions to Dismiss Based on Preemption .......................................................................... 7
C. Settlement Negotiations and Preliminary Approval ........................................................... 8
D. The Settlement .................................................................................................................. 12
i. Monetary Award Fund ................................................................................................. 14
ii. Claims Process ............................................................................................................. 17
iii. Baseline Assessment Program...................................................................................... 18
iv. Education Fund............................................................................................................. 19
v. Releases of Claims ....................................................................................................... 20
vi. Attorneys’ Fees............................................................................................................. 21
E. Reactions to the Settlement and Resulting Amendments ................................................. 21
II. Class Certification................................................................................................................ 23
A. Numerosity........................................................................................................................ 24
B. Commonality..................................................................................................................... 24
C. Typicality .......................................................................................................................... 26
D. Adequacy of Representation ............................................................................................. 28
i. Adequacy of Class Counsel .......................................................................................... 29
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ii. Adequacy of Named Parties ......................................................................................... 33
iii. Absence of Conflicts of Interest ................................................................................... 34
E. Predominance .................................................................................................................... 42
F. Superiority......................................................................................................................... 47
III. Notice ................................................................................................................................... 49
A. Content of Class Notice .................................................................................................... 50
B. Distribution of Class Notice.............................................................................................. 53
C. Notice of Amendments to the Settlement ......................................................................... 55
IV. Final Approval of the Settlement ......................................................................................... 56
A. The Presumption of Fairness ............................................................................................ 58
B. The Girsh Factors ............................................................................................................. 60
i. The Complexity, Expense, and Likely Duration of the Litigation ............................... 60
ii. The Reaction of the Class to the Settlement................................................................. 62
iii. The Stage of the Proceedings and the Amount of Discovery Completed .................... 63
iv. The Risks of Establishing Liability and Damages ....................................................... 66
v. The Risks of Maintaining the Class Action through Trial ........................................... 72
vi. The Ability of Defendants to Withstand a Greater Judgment ...................................... 73
vii. The Range of Reasonableness of the Settlement in Light of the Best Possible Recovery
and in Light of All Attendant Risks of Litigation ........................................................ 73
C. The Prudential Factors ..................................................................................................... 75
V. Responses to Specific Objections ........................................................................................ 77
A. Objections Related to CTE ............................................................................................... 78
i. State of Scientific and Medical Knowledge of CTE .................................................... 79
ii. Compensation of Symptoms Allegedly Associated with CTE .................................... 83
iii. Compensation of Death with CTE ............................................................................... 87
iv. Development of Scientific and Medical Knowledge of CTE....................................... 89
B. Objections to Monetary Awards ....................................................................................... 91
i. Definitions of Levels 1.5 and 2 Neurocognitive Impairment ....................................... 91
ii. List of Qualifying Diagnoses and their Maximum Awards ......................................... 94
C. Objections to Offsets......................................................................................................... 98
i. Age Offset .................................................................................................................... 98
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ii. Severe TBI Offset ....................................................................................................... 100
iii. Stroke Offset............................................................................................................... 101
iv. Eligible Season Offset ................................................................................................ 102
v. BAP Offset ................................................................................................................. 106
D. Objections to the Baseline Assessment Program ............................................................ 106
i. BAP Fund ................................................................................................................... 106
ii. Test Battery ................................................................................................................ 107
iii. BAP Protocols ............................................................................................................ 110
iv. Selection Process for Qualified BAP Providers ......................................................... 111
v. Use of Mail Order Pharmacy Vendors ....................................................................... 112
E. Objections to the Claims Process .................................................................................... 113
i. Cognitive Impairment of Certain Retired Players ...................................................... 114
ii. Registration Requirement ........................................................................................... 115
iii. Use of Qualified MAF Physicians.............................................................................. 116
iv. Claim Package ............................................................................................................ 117
v. Appeals Process .......................................................................................................... 119
vi. Anti-Fraud Provisions ................................................................................................ 120
F. Other Objections ............................................................................................................. 120
i. Education Fund........................................................................................................... 120
ii. Statutes of Limitations Waiver ................................................................................... 122
iii. Releases ...................................................................................................................... 124
iv. NFL Parties’ Security ................................................................................................. 125
v. Objector Signature Requirement ................................................................................ 127
vi. Lien Resolution Program............................................................................................ 127
vii. Parties’ Experts........................................................................................................... 129
viii. Parties’ Disclosures .................................................................................................... 130
ix. Opt-Out Procedure ..................................................................................................... 131
VI. Conclusion ......................................................................................................................... 132
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MEMORANDUM
Plaintiffs Kevin Turner and Shawn Wooden, through their Co-Lead Class Counsel, Class
Counsel, and Subclass Counsel, and Defendants National Football League (“NFL”) and NFL
Properties LLC (collectively, the “NFL Parties”) have negotiated and agreed to a Class Action
Settlement (the “Settlement”) that will resolve all claims against the NFL Parties in this
multidistrict litigation.
On November 12, 2014, Class Plaintiffs moved for class certification and final approval of
the Settlement. 1 Pursuant to Federal Rule of Civil Procedure 23, I certify the Settlement Class
and Subclasses, find that the Settlement is fair, reasonable, and adequate, and approve the
Settlement in its entirety. Therefore, I will grant the motion for class certification and final
approval of the Settlement.
I. Background and Procedural History
A. Initial Lawsuits and Consolidation
On July 19, 2011, 73 former professional football players filed suit in the Superior Court of
California, Los Angeles County, against the NFL Parties. See Compl., Maxwell v. Nat’l Football
League, No. BC465842 (Cal. Super. Ct. July 19, 2011). They alleged that the NFL Parties failed
to take reasonable actions to protect players from the chronic risks created by concussive and
sub-concussive head injuries and fraudulently concealed those risks from players. Three
substantially similar lawsuits followed in quick succession. See Compl., Pear v. Nat’l Football
League, No. LC094453 (Cal. Super. Ct. Aug. 3, 2011); Compl., Barnes v. Nat’l Football League,
No. BV468483 (Cal. Super. Ct. Aug. 26, 2011); see also Easterling v. Nat’l Football League,
1
The Settlement was initially filed on June 25, 2014, and amended on February 13, 2015. See Parties’
Joint Amendment, Ex. A. As used in this Memorandum, the term Settlement refers to the amended
version, except when the history of the initial filing is discussed.
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No. 11-5209, ECF No. 1 (E.D. Pa. Aug. 17, 2011). In response, the Judicial Panel on
Multidistrict Litigation consolidated these cases before this Court as a multidistrict litigation
(“MDL”), pursuant to 28 U.S.C. § 1407. See MDL Panel Transfer Order, ECF No. 1.
Since consolidation, about 5,000 players (“MDL Plaintiffs”) have filed over 300 substantially
similar lawsuits against the NFL Parties, 2 all of which have been transferred to this Court. To
effectively manage these actions, I appointed Christopher Seeger and Sol Weiss as Co-Lead
Class Counsel, and appointed individuals to a Plaintiffs’ Executive Committee and a Steering
Committee. See Case Mgmt. Order No. 2 at 1-2, ECF No. 64; Case Mgmt. Order No. 3 at 1,
ECF No. 72 (appointing Sol Weiss as additional Co-Lead Class Counsel and appointing
additional members of the Steering Committee). I ordered Co-Lead Class Counsel to submit
both a Master Administrative Long-Form Complaint and a Master Administrative Class Action
Complaint, which were filed on June 7, 2012. See Case Mgmt. Order No. 4 at 1-3, ECF. No. 98.
Subsequently, Co-Lead Class Counsel filed an Amended Master Administrative Long-Form
Complaint. This Amended Complaint, along with the Master Administrative Class Action
Complaint (collectively, the “Complaints”), became the operative pleadings of this MDL. See
Master Administrative Class Action Compl., ECF No. 84; Am. Master Administrative Long-
Form Compl., ECF No. 2642 (“Am. MAC”).
In the Complaints, MDL Plaintiffs allege that the NFL Parties had a “duty to provide players
with rules and information that protect [players] as much as possible from short-term and long-
2
Many MDL Plaintiffs also brought suit against Riddell, Inc., All American Sports Corporation, Riddell
Sports Group, Inc., Easton-Bell Sports Inc., Easton-Bell Sports, LLC, EB Sports Corp., and RBG
Holdings Corp. (collectively, the “Riddell Defendants”). The Judicial Panel on Multidistrict Litigation
also transferred claims against the Riddell Defendants into this MDL. The Riddell Defendants, however,
are not parties to the Settlement.
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term health risks,” including from the risks of repetitive mild traumatic brain injury (“TBI”). 3
Am. MAC ¶ 6, 8. They claim “the NFL held itself out as the guardian and authority on the issue
of player safety,” yet failed to properly investigate, warn of, and revise league rules to minimize
the risk of concussive and sub-concussive hits in NFL Football games. See id. ¶¶ 6, 43, 86.
MDL Plaintiffs allege that the NFL Parties fostered a culture surrounding football that glorified
violence and a gladiator mentality, encouraging NFL players to play despite head injuries.
MDL Plaintiffs also allege that, as concern about head injuries in contact sports grew in the
medical community, “the NFL voluntarily inserted itself into the private and public discussion”
regarding these dangers. Id. ¶ 150. In 1994, the NFL Parties created a Mild Traumatic Brain
Injury Committee (“MTBI Committee”) to study the effects of concussive and sub-concussive
injuries on their players. Through the MTBI Committee, the NFL Parties allegedly obfuscated
the connection between NFL Football and long-term brain injury, despite knowing “for decades”
that such a connection exists. Id. ¶¶ 108, 243. The MTBI Committee also allegedly pressured
those who criticized its conclusions to retract or otherwise distance themselves from their
findings. MDL Plaintiffs claim that, “[b]efore June of 2010, the NFL made material
misrepresentations to its players, former players, the United States Congress, and the public at
large that there was no scientifically proven link between repetitive traumatic head impacts and
later-in-life cognitive/brain injury.” Id. ¶ 308.
MDL Plaintiffs allege that head injuries lead to a host of debilitating conditions, including
Alzheimer’s Disease, dementia, depression, deficits in cognitive functioning, reduced processing
speed, attention and reasoning, loss of memory, sleeplessness, mood swings, and personality
3
The scientific community recognizes three categories of TBI: mild, moderate, and severe. See Decl. of
Dr. Kristine Yaffe ¶ 41, ECF No. 6422-36. NFL Football allegedly puts players at risk of repetitive mild
TBI, including concussions. Am. MAC. ¶ 2; Decl. of Dr. Christopher Giza ¶ 12, ECF No. 6423-18
(noting “concussion overlaps significantly” with mild TBI).
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changes. MDL Plaintiffs also allege that the repetitive head trauma sustained while playing
football causes a gradual build-up of tau protein in the brain, resulting in Chronic Traumatic
Encephalopathy (“CTE”). CTE allegedly causes an increased risk of suicide, and many
symptoms often associated with Alzheimer’s Disease and dementia, as well as with mood
disorders such as depression and loss of emotional control.
The Complaints assert fourteen claims against the NFL Parties, which can be generally
grouped into negligence claims and fraud claims. 4 MDL Plaintiffs seek declaratory relief,
medical monitoring, and damages. See Am. MAC at Prayer for Relief.
B. Motions to Dismiss Based on Preemption
Before allowing the litigation to proceed to its merits, I determined that a significant
threshold legal issue had to be addressed: whether MDL Plaintiffs’ negligence and fraud claims
are preempted by the Collective Bargaining Agreements (“CBAs”) between the Retired Players
and the 32 Member Clubs that make up the National Football League. I was aware that in a
number of analogous cases, courts ruled that state law claims brought against the NFL and
associated parties implicated provisions of the CBAs. Accordingly, § 301 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. 185(a), preempted those state law claims. A
preemption ruling in this MDL would necessarily require MDL Plaintiffs to resolve their claims
through arbitration rather than in federal court because the CBAs contain mandatory arbitration
provisions. Because of the importance of this issue, I stayed discovery and granted the request of
the NFL Parties to file motions to dismiss on the preemption argument only. See Case Mgmt.
Order No. 2 at 2 (noting that preemption was to be considered on an expedited basis); Case
4
Specifically, the Complaints assert claims against the NFL Parties for declaratory relief, medical
monitoring, wrongful death and survival actions, fraudulent concealment, fraud, negligent
misrepresentation, negligence (three separate counts), loss of consortium, negligent hiring, negligent
retention, and civil conspiracy. Am MAC. ¶¶ 246-382, 422-25, Prayer for Relief.
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Mgmt. Order No. 4 at 3-4; Tr. of Organizational Courtroom Conference, Apr. 25, 2012 at 28:14-
16 (staying discovery); Order, Aug. 21, 2012, ECF No. 3384.
On August 30, 2012, the NFL Parties moved to dismiss both Complaints. See Defs.’ Mot. to
Dismiss Am. MAC, ECF No. 3589; Defs.’ Mot. to Dismiss Master Administrative Class Action
Complaint, ECF No. 3590. The NFL Parties argue that MDL Plaintiffs’ claims necessarily
implicate provisions of the CBAs that address player safety. Specifically, they argue that the
CBAs control or implicate the duties of the NFL Parties and individual Member Clubs to treat
player injuries, make return-to-play decisions, inform players of medical risks associated with
continuing to play, and promulgate rule changes to enhance player safety. See Mot. to Dismiss
Am. MAC at 12-18. If the NFL Parties are correct, then § 301 of the LMRA requires MDL
Plaintiffs to arbitrate their claims because they agreed in the CBAs to resolve their disputes
before an arbitrator, not in federal court.
The parties completed briefing on the motions to dismiss on January 28, 2013, and I heard
oral argument on April 9, 2013. The NFL Parties’ motions to dismiss remain pending.
C. Settlement Negotiations and Preliminary Approval
On July 8, 2013, I ordered the Parties to participate in mediation with the hope that a
negotiated, mutually beneficial settlement could be reached. Pending their negotiations, I agreed
to withhold my ruling on the motions to dismiss that might have sent the litigation to arbitration.
See Order, July 8, 2013, ECF No. 5128. I appointed retired United States District Court Judge
Layn Phillips as mediator to help the Parties explore settlement. Id.
A genuine dialogue between zealous and well-prepared adversaries transpired. Judge
Phillips reports that the Parties engaged in “arm’s-length, hard-fought negotiations.” Decl. of
Layn R. Phillips ¶ 5, ECF No. 6073-4 (“Phillips Decl.”). During this time, the Parties met for
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more than “twelve full days” of formal mediation. See id. ¶¶ 5-6; Decl. of Christopher Seeger
¶ 31, ECF No. 6423-3 (“Seeger Decl.”). “The negotiations were intense, vigorous, and
sometimes quite contentious.” Supplemental Decl. of Layn R. Phillips ¶ 4, ECF No. 6423-6
(“Phillips Supp. Decl.”).
The Parties came prepared for these discussions. The Parties had already retained well-
qualified medical experts to help determine the merits of the case. These experts advised the
Parties on difficult questions such as the type of head trauma associated with NFL Football and
the long term health effects of trauma on Retired Players. See Phillips Decl. ¶ 8; Seeger Decl.
¶ 32; Decl. of Arnold Levin ¶¶ 14-15, ECF No. 6423-10 (“Levin Decl.”); Decl. of Dianne Nast
¶¶ 13-14 (“Nast Decl.”); Decl. of Dr. Scott Millis ¶ 11, ECF No. 6422-34 (noting he “assisted the
NFL Parties during their negotiations” regarding the Test Battery and other Settlement
provisions) (“Dr. Millis Decl.”); Decl. of Dr. John Kelip ¶ 16, ECF No. 6423-20 (noting he has
consulted with Class Counsel on scientific issues since the summer of 2013) (“Dr. Kelip Decl.”).
Judge Phillips met with the Parties’ experts and observed the valuable services they provided.
See Phillips Decl. ¶8.
In addition to experts, the Parties had access to considerable information about the Retired
Players, including from the short form complaints filed with the Court. The NFL Parties’
records provided the Parties with biographical information about the vast majority of the former
players, including the number of seasons played. See Material Provided by Counsel to Pls.,
Report of the Analysis Research Planning Corp. to Special Master Perry Golkin at 13-15, ECF
No. 6167 (“Class Counsel’s Actuarial Materials”); Material Provided by Counsel to the NFL,
Report of the Segal Group to Special Master Perry Golkin ¶ 16, ECF No. 6168 (“NFL Parties’
Actuarial Materials”). Co-Lead Class Counsel also created and maintained a comprehensive
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database of the symptoms of MDL Plaintiffs. As a result, the Parties had information about the
current cognitive impairment of over 1,500 Retired Players. See NFL Parties’ Actuarial
Materials ¶ 16; Seeger Decl. ¶ 20.
The mediation efforts were successful. On August 29, 2013, after two months of near
continuous negotiations, the Parties signed a term sheet setting forth the “principal terms of a
settlement.” See Order, Aug. 29, 2013, ECF No. 5235. The term sheet included $765 million to
fund medical exams and provide compensation for player injuries. Id. Given the Parties’
progress in reaching a settlement, I continued to withhold decision on the NFL Parties’ motions
to dismiss on preemption grounds. Id.
The Parties negotiated further, and over the next four months established the specific terms
of the Settlement. On January 6, 2014, Class Counsel, 5 with Kevin Turner and Shawn Wooden
as Class Representatives, filed the complaint in Turner v. Nat’l Football League, No. 14-0029,
ECF No. 1 (E.D. Pa. Jan. 6, 2014) (the “Class Action Complaint”). 6 In that action, Class
Counsel sought preliminary class certification and preliminary approval of their proposed
settlement. See Mot. for Prelim Approval, Jan. 6, 2014, ECF No. 5634.
Though I commended the Parties for their efforts, I denied the motion for preliminary class
certification and preliminary approval of the Settlement without prejudice. See Order Den. Mot.
for Prelim. Approval, ECF No. 5658. I was primarily concerned that the capped fund would
exhaust before the 65-year life of the Settlement; I feared that “not all Retired Players who
ultimately receive[d] a Qualifying Diagnosis or their related claimants will be paid.” Mem. Op.
5
Class Counsel includes Co-Lead Class Counsel Christopher Seeger and Sol Weiss, Subclass Counsel
Arnold Levin and Dianne Nast, as well as Gene Locks and Steven Marks. See Settlement § 2.1(r).
6
Turner was originally marked as a related action to this MDL. On June 25, 2014, “in the interest of
justice and to promote judicial economy and avoid duplication,” I ordered that “[a]ll motion practice and
other filings related to or based on Turner v. NFL, shall be filed only on [this] MDL docket . . . .” Turner,
ECF No. 20.
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at 10, ECF No. 5657. I was also concerned that the deal released claims against the National
College Athletic Association (“NCAA”) and other collegiate, amateur, and youth football
organizations. Id. at 10 n.6. To address my concerns, I ordered the Parties to share the actuarial
data and analyses performed by their economic experts 7 with Special Master Perry Golkin. 8
Five more months of arm’s-length, hard fought negotiations followed. Special Master
Golkin oversaw these negotiations, during which the Parties revisited many provisions of the
Settlement. See Seeger Decl. ¶ 61.
These negotiations proved fruitful. The Parties ultimately reached a revised settlement. The
revised deal retained the same basic structure as the original, and included large maximum
awards for Qualifying Diagnoses subject to a series of offsets, a separate fund to allow for
baseline assessment examinations for Retired Players, and a fund dedicated to educating former
players and promoting safety and injury prevention for football players of all ages. Crucially,
this revised deal uncapped the fund to compensate Retired Players with Qualifying Diagnoses;
the NFL Parties agreed to pay all valid claims over the duration of the settlement regardless of
the total cost. The NFL Parties also agreed to narrow the scope of the Releases. In exchange for
these concessions, the NFL Parties received heightened anti-fraud provisions to ensure that funds
were only disbursed to deserving claimants. On June 25, 2014, Class Counsel filed a motion for
preliminary class certification and preliminary approval of the Settlement. See Mot. for Prelim.
Approval, June 25, 2014, ECF No. 6073.
7
The Parties have since disclosed this information, and it is publicly available. See Class Counsel’s
Actuarial Materials; NFL Parties’ Actuarial Materials.
8
I appointed Special Master Golkin on December 16, 2013 in light of the “expected financial complexity
of the proposed settlement.” See Order Appointing Special Master at 1, ECF No. 5607. As always, I am
grateful to Mr. Golkin for his forthright and astute advice.
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On July 7, 2014 (“Preliminary Approval Date”), after making a preliminary determination on
class certification for the purpose of issuing notice of settlement, 9 I granted the motion for
preliminary class certification and preliminary approval of the Settlement. See Order Granting
Prelim. Approval, ECF No. 6084. As discussed more fully infra Section I.E, on February 13,
2015, the Parties amended the Settlement, making it more favorable to the Class. See Parties’
Joint Amendment, ECF No. 6481.
D. The Settlement
The Class consists of “[a]ll living NFL Football Players who, prior to the date of Preliminary
Approval . . . retired . . . from playing professional football with the NFL,” as well as their
Representative and Derivative Claimants. See Settlement §§ 1.1, 2.1(ffff). Representative
Claimants are those duly authorized by law to assert the claims of deceased, legally
incapacitated, or incompetent Retired Players. See id. § 2.1(eeee). Derivative Claimants are
those, such as parents, spouses, or dependent children, who have some legal right to the income
of Retired Players. See id. § 2.1(ee).
The Settlement sorts Class Members into one of two subclasses based on Retired Players’
injuries as of the Preliminary Approval Date. Subclass 2 consists of:
Retired NFL Football Players who were diagnosed with a Qualifying
Diagnosis prior to the date of the Preliminary Approval and Class
Certification Order and their Representative Claimants and Derivative
Claimants, and the Representative Claimants of deceased Retired NFL
Football Players who were diagnosed with a Qualifying Diagnosis prior to
death or who died prior to the date of the Preliminary Approval and Class
Certification Order and who received a postmortem diagnosis of CTE.
Id. § 1.2(b).
9
Despite language in the Preliminary Approval Order and accompanying Memorandum that the Class
had been “conditionally” certified, I reserved class certification analysis until after the Fairness Hearing to
allow for full development of the record. See In re Nat’l Football Players Concussion Injury Litig., 775
F.3d 570, 584-87 (3d Cir. 2014).
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Subclass 1 consists of the remainder:
Retired NFL Football Players who were not diagnosed with a Qualifying
Diagnosis prior to the date of the Preliminary Approval and Class
Certification Order and their Representative Claimants and Derivative
Claimants.
Id. § 1.2(a).
The Settlement has three primary components. An uncapped Monetary Award Fund
(“MAF”), overseen by a Claims Administrator, provides compensation for Retired Players who
submit sufficient proof of Qualifying Diagnoses. A $75 million Baseline Assessment Program
(“BAP”) provides eligible Retired Players 10 with free baseline assessment examinations of their
objective neurological functioning. BAP funds will also be used to provide BAP Supplemental
Benefits, including counseling and prescription drug benefits, to those who are impaired but have
not deteriorated to the point of receiving a Qualifying Diagnosis. Third, an Education Fund will
educate Class Members regarding the NFL Parties’ existing CBA Medical and Disability
Benefits programs, and promote safety and injury prevention for football players of all ages,
including youth football players. I will appoint Wendell Pritchett and Jo-Ann Verrier jointly as
Special Master responsible for overseeing, implementing, and administering the entire
Settlement. See id. § 10.1.
10
Only Retired Players may receive Qualifying Diagnoses or baseline assessment examinations because
they are the only Class Members who played NFL Football. Because Representative Claimants assume
the legal rights of the Retired Players they represent, the Settlement treats them similarly to Retired
Players for the purposes of calculating, submitting, and receiving Monetary Awards.
Derivative Claimants are Class Members because of their relationship with a Retired Player, not
because they stand in the shoes of a Retired Player. As a result, the Derivative Claimant Awards work
somewhat differently. Derivative Claimants are eligible to receive up to 1% of a Retired Player’s
Monetary Award. Unlike a Representative Claimant, a Derivative Claimant must wait until a Retired
Player files for a Monetary Award, and then file a Derivative Claim Package seeking a portion of that
Award. See Settlement § 7.2. In most other respects, Derivative Claimants are treated similarly to
Representative Claimants.
Because a Retired Player is essential to every claim, for ease of reference I generally describe the
requirements Retired Players must satisfy to receive benefits of the Settlement.
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i. Monetary Award Fund
The Monetary Award Fund is an uncapped, inflation-adjusted fund that provides cash awards
for Retired Players who receive Qualifying Diagnoses. By cost, the MAF constitutes the
majority of the Settlement. 11
The Settlement creates six Qualifying Diagnoses: Level 1.5 Neurocognitive Impairment,
Level 2 Neurocognitive Impairment, Alzheimer’s Disease, Parkinson’s Disease, Amyotrophic
Lateral Sclerosis (“ALS”), and Death with CTE.
Levels 1.5 and 2 Neurocognitive Impairment are defined by the Settlement. They require
both a decline in cognitive function and a loss of functional capabilities, such as the ability to
hold a job or perform household chores. See generally id. Ex. 1. These diagnoses correspond
with commonly accepted clinical definitions of mild 12 and moderate dementia, respectively. 13
The Settlement adopts the definitions of Alzheimer’s Disease, Parkinson’s Disease, and ALS
found in the World Health Organization’s International Classification of Diseases. Id.
Diagnoses of Alzheimer’s Disease or Parkinson’s Disease may alternatively meet the definitions
provided by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-
5”). Id. Death with CTE requires a post-mortem diagnosis of CTE made by a board-certified
neuropathologist. Id.
After the Effective Date of the Settlement, only pre-approved Qualified MAF Physicians and
Qualified BAP Providers may render Qualifying Diagnoses. See id. §§ 5.7(a)(i), 6.3(b), 6.5(a),
Ex. 1. The Claims Administrator and BAP Administrator will select these specialists, subject to
the written approval of Co-Lead Class Counsel and the NFL Parties. See id. §§ 5.7(a)(i), 6.5(a).
Preview
FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. 684 RECEIVED NYSCEF: 11/12/2021 EXHIBIT 5 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 1 of 132 RECEIVED NYSCEF: 11/12/2021 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 THIS DOCUMENT RELATES TO: Hon. Anita B. Brody ALL ACTIONS April 22, 2015 Anita B. Brody, J. I. Background and Procedural History ...................................................................................... 4 A. Initial Lawsuits and Consolidation ..................................................................................... 4 B. Motions to Dismiss Based on Preemption .......................................................................... 7 C. Settlement Negotiations and Preliminary Approval ........................................................... 8 D. The Settlement .................................................................................................................. 12 i. Monetary Award Fund ................................................................................................. 14 ii. Claims Process ............................................................................................................. 17 iii. Baseline Assessment Program...................................................................................... 18 iv. Education Fund............................................................................................................. 19 v. Releases of Claims ....................................................................................................... 20 vi. Attorneys’ Fees............................................................................................................. 21 E. Reactions to the Settlement and Resulting Amendments ................................................. 21 II. Class Certification................................................................................................................ 23 A. Numerosity........................................................................................................................ 24 B. Commonality..................................................................................................................... 24 C. Typicality .......................................................................................................................... 26 D. Adequacy of Representation ............................................................................................. 28 i. Adequacy of Class Counsel .......................................................................................... 29 1 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 2 of 132 RECEIVED NYSCEF: 11/12/2021 ii. Adequacy of Named Parties ......................................................................................... 33 iii. Absence of Conflicts of Interest ................................................................................... 34 E. Predominance .................................................................................................................... 42 F. Superiority......................................................................................................................... 47 III. Notice ................................................................................................................................... 49 A. Content of Class Notice .................................................................................................... 50 B. Distribution of Class Notice.............................................................................................. 53 C. Notice of Amendments to the Settlement ......................................................................... 55 IV. Final Approval of the Settlement ......................................................................................... 56 A. The Presumption of Fairness ............................................................................................ 58 B. The Girsh Factors ............................................................................................................. 60 i. The Complexity, Expense, and Likely Duration of the Litigation ............................... 60 ii. The Reaction of the Class to the Settlement................................................................. 62 iii. The Stage of the Proceedings and the Amount of Discovery Completed .................... 63 iv. The Risks of Establishing Liability and Damages ....................................................... 66 v. The Risks of Maintaining the Class Action through Trial ........................................... 72 vi. The Ability of Defendants to Withstand a Greater Judgment ...................................... 73 vii. The Range of Reasonableness of the Settlement in Light of the Best Possible Recovery and in Light of All Attendant Risks of Litigation ........................................................ 73 C. The Prudential Factors ..................................................................................................... 75 V. Responses to Specific Objections ........................................................................................ 77 A. Objections Related to CTE ............................................................................................... 78 i. State of Scientific and Medical Knowledge of CTE .................................................... 79 ii. Compensation of Symptoms Allegedly Associated with CTE .................................... 83 iii. Compensation of Death with CTE ............................................................................... 87 iv. Development of Scientific and Medical Knowledge of CTE....................................... 89 B. Objections to Monetary Awards ....................................................................................... 91 i. Definitions of Levels 1.5 and 2 Neurocognitive Impairment ....................................... 91 ii. List of Qualifying Diagnoses and their Maximum Awards ......................................... 94 C. Objections to Offsets......................................................................................................... 98 i. Age Offset .................................................................................................................... 98 2 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 3 of 132 RECEIVED NYSCEF: 11/12/2021 ii. Severe TBI Offset ....................................................................................................... 100 iii. Stroke Offset............................................................................................................... 101 iv. Eligible Season Offset ................................................................................................ 102 v. BAP Offset ................................................................................................................. 106 D. Objections to the Baseline Assessment Program ............................................................ 106 i. BAP Fund ................................................................................................................... 106 ii. Test Battery ................................................................................................................ 107 iii. BAP Protocols ............................................................................................................ 110 iv. Selection Process for Qualified BAP Providers ......................................................... 111 v. Use of Mail Order Pharmacy Vendors ....................................................................... 112 E. Objections to the Claims Process .................................................................................... 113 i. Cognitive Impairment of Certain Retired Players ...................................................... 114 ii. Registration Requirement ........................................................................................... 115 iii. Use of Qualified MAF Physicians.............................................................................. 116 iv. Claim Package ............................................................................................................ 117 v. Appeals Process .......................................................................................................... 119 vi. Anti-Fraud Provisions ................................................................................................ 120 F. Other Objections ............................................................................................................. 120 i. Education Fund........................................................................................................... 120 ii. Statutes of Limitations Waiver ................................................................................... 122 iii. Releases ...................................................................................................................... 124 iv. NFL Parties’ Security ................................................................................................. 125 v. Objector Signature Requirement ................................................................................ 127 vi. Lien Resolution Program............................................................................................ 127 vii. Parties’ Experts........................................................................................................... 129 viii. Parties’ Disclosures .................................................................................................... 130 ix. Opt-Out Procedure ..................................................................................................... 131 VI. Conclusion ......................................................................................................................... 132 3 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 4 of 132 RECEIVED NYSCEF: 11/12/2021 MEMORANDUM Plaintiffs Kevin Turner and Shawn Wooden, through their Co-Lead Class Counsel, Class Counsel, and Subclass Counsel, and Defendants National Football League (“NFL”) and NFL Properties LLC (collectively, the “NFL Parties”) have negotiated and agreed to a Class Action Settlement (the “Settlement”) that will resolve all claims against the NFL Parties in this multidistrict litigation. On November 12, 2014, Class Plaintiffs moved for class certification and final approval of the Settlement. 1 Pursuant to Federal Rule of Civil Procedure 23, I certify the Settlement Class and Subclasses, find that the Settlement is fair, reasonable, and adequate, and approve the Settlement in its entirety. Therefore, I will grant the motion for class certification and final approval of the Settlement. I. Background and Procedural History A. Initial Lawsuits and Consolidation On July 19, 2011, 73 former professional football players filed suit in the Superior Court of California, Los Angeles County, against the NFL Parties. See Compl., Maxwell v. Nat’l Football League, No. BC465842 (Cal. Super. Ct. July 19, 2011). They alleged that the NFL Parties failed to take reasonable actions to protect players from the chronic risks created by concussive and sub-concussive head injuries and fraudulently concealed those risks from players. Three substantially similar lawsuits followed in quick succession. See Compl., Pear v. Nat’l Football League, No. LC094453 (Cal. Super. Ct. Aug. 3, 2011); Compl., Barnes v. Nat’l Football League, No. BV468483 (Cal. Super. Ct. Aug. 26, 2011); see also Easterling v. Nat’l Football League, 1 The Settlement was initially filed on June 25, 2014, and amended on February 13, 2015. See Parties’ Joint Amendment, Ex. A. As used in this Memorandum, the term Settlement refers to the amended version, except when the history of the initial filing is discussed. 4 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 5 of 132 RECEIVED NYSCEF: 11/12/2021 No. 11-5209, ECF No. 1 (E.D. Pa. Aug. 17, 2011). In response, the Judicial Panel on Multidistrict Litigation consolidated these cases before this Court as a multidistrict litigation (“MDL”), pursuant to 28 U.S.C. § 1407. See MDL Panel Transfer Order, ECF No. 1. Since consolidation, about 5,000 players (“MDL Plaintiffs”) have filed over 300 substantially similar lawsuits against the NFL Parties, 2 all of which have been transferred to this Court. To effectively manage these actions, I appointed Christopher Seeger and Sol Weiss as Co-Lead Class Counsel, and appointed individuals to a Plaintiffs’ Executive Committee and a Steering Committee. See Case Mgmt. Order No. 2 at 1-2, ECF No. 64; Case Mgmt. Order No. 3 at 1, ECF No. 72 (appointing Sol Weiss as additional Co-Lead Class Counsel and appointing additional members of the Steering Committee). I ordered Co-Lead Class Counsel to submit both a Master Administrative Long-Form Complaint and a Master Administrative Class Action Complaint, which were filed on June 7, 2012. See Case Mgmt. Order No. 4 at 1-3, ECF. No. 98. Subsequently, Co-Lead Class Counsel filed an Amended Master Administrative Long-Form Complaint. This Amended Complaint, along with the Master Administrative Class Action Complaint (collectively, the “Complaints”), became the operative pleadings of this MDL. See Master Administrative Class Action Compl., ECF No. 84; Am. Master Administrative Long- Form Compl., ECF No. 2642 (“Am. MAC”). In the Complaints, MDL Plaintiffs allege that the NFL Parties had a “duty to provide players with rules and information that protect [players] as much as possible from short-term and long- 2 Many MDL Plaintiffs also brought suit against Riddell, Inc., All American Sports Corporation, Riddell Sports Group, Inc., Easton-Bell Sports Inc., Easton-Bell Sports, LLC, EB Sports Corp., and RBG Holdings Corp. (collectively, the “Riddell Defendants”). The Judicial Panel on Multidistrict Litigation also transferred claims against the Riddell Defendants into this MDL. The Riddell Defendants, however, are not parties to the Settlement. 5 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 6 of 132 RECEIVED NYSCEF: 11/12/2021 term health risks,” including from the risks of repetitive mild traumatic brain injury (“TBI”). 3 Am. MAC ¶ 6, 8. They claim “the NFL held itself out as the guardian and authority on the issue of player safety,” yet failed to properly investigate, warn of, and revise league rules to minimize the risk of concussive and sub-concussive hits in NFL Football games. See id. ¶¶ 6, 43, 86. MDL Plaintiffs allege that the NFL Parties fostered a culture surrounding football that glorified violence and a gladiator mentality, encouraging NFL players to play despite head injuries. MDL Plaintiffs also allege that, as concern about head injuries in contact sports grew in the medical community, “the NFL voluntarily inserted itself into the private and public discussion” regarding these dangers. Id. ¶ 150. In 1994, the NFL Parties created a Mild Traumatic Brain Injury Committee (“MTBI Committee”) to study the effects of concussive and sub-concussive injuries on their players. Through the MTBI Committee, the NFL Parties allegedly obfuscated the connection between NFL Football and long-term brain injury, despite knowing “for decades” that such a connection exists. Id. ¶¶ 108, 243. The MTBI Committee also allegedly pressured those who criticized its conclusions to retract or otherwise distance themselves from their findings. MDL Plaintiffs claim that, “[b]efore June of 2010, the NFL made material misrepresentations to its players, former players, the United States Congress, and the public at large that there was no scientifically proven link between repetitive traumatic head impacts and later-in-life cognitive/brain injury.” Id. ¶ 308. MDL Plaintiffs allege that head injuries lead to a host of debilitating conditions, including Alzheimer’s Disease, dementia, depression, deficits in cognitive functioning, reduced processing speed, attention and reasoning, loss of memory, sleeplessness, mood swings, and personality 3 The scientific community recognizes three categories of TBI: mild, moderate, and severe. See Decl. of Dr. Kristine Yaffe ¶ 41, ECF No. 6422-36. NFL Football allegedly puts players at risk of repetitive mild TBI, including concussions. Am. MAC. ¶ 2; Decl. of Dr. Christopher Giza ¶ 12, ECF No. 6423-18 (noting “concussion overlaps significantly” with mild TBI). 6 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 7 of 132 RECEIVED NYSCEF: 11/12/2021 changes. MDL Plaintiffs also allege that the repetitive head trauma sustained while playing football causes a gradual build-up of tau protein in the brain, resulting in Chronic Traumatic Encephalopathy (“CTE”). CTE allegedly causes an increased risk of suicide, and many symptoms often associated with Alzheimer’s Disease and dementia, as well as with mood disorders such as depression and loss of emotional control. The Complaints assert fourteen claims against the NFL Parties, which can be generally grouped into negligence claims and fraud claims. 4 MDL Plaintiffs seek declaratory relief, medical monitoring, and damages. See Am. MAC at Prayer for Relief. B. Motions to Dismiss Based on Preemption Before allowing the litigation to proceed to its merits, I determined that a significant threshold legal issue had to be addressed: whether MDL Plaintiffs’ negligence and fraud claims are preempted by the Collective Bargaining Agreements (“CBAs”) between the Retired Players and the 32 Member Clubs that make up the National Football League. I was aware that in a number of analogous cases, courts ruled that state law claims brought against the NFL and associated parties implicated provisions of the CBAs. Accordingly, § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. 185(a), preempted those state law claims. A preemption ruling in this MDL would necessarily require MDL Plaintiffs to resolve their claims through arbitration rather than in federal court because the CBAs contain mandatory arbitration provisions. Because of the importance of this issue, I stayed discovery and granted the request of the NFL Parties to file motions to dismiss on the preemption argument only. See Case Mgmt. Order No. 2 at 2 (noting that preemption was to be considered on an expedited basis); Case 4 Specifically, the Complaints assert claims against the NFL Parties for declaratory relief, medical monitoring, wrongful death and survival actions, fraudulent concealment, fraud, negligent misrepresentation, negligence (three separate counts), loss of consortium, negligent hiring, negligent retention, and civil conspiracy. Am MAC. ¶¶ 246-382, 422-25, Prayer for Relief. 7 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 8 of 132 RECEIVED NYSCEF: 11/12/2021 Mgmt. Order No. 4 at 3-4; Tr. of Organizational Courtroom Conference, Apr. 25, 2012 at 28:14- 16 (staying discovery); Order, Aug. 21, 2012, ECF No. 3384. On August 30, 2012, the NFL Parties moved to dismiss both Complaints. See Defs.’ Mot. to Dismiss Am. MAC, ECF No. 3589; Defs.’ Mot. to Dismiss Master Administrative Class Action Complaint, ECF No. 3590. The NFL Parties argue that MDL Plaintiffs’ claims necessarily implicate provisions of the CBAs that address player safety. Specifically, they argue that the CBAs control or implicate the duties of the NFL Parties and individual Member Clubs to treat player injuries, make return-to-play decisions, inform players of medical risks associated with continuing to play, and promulgate rule changes to enhance player safety. See Mot. to Dismiss Am. MAC at 12-18. If the NFL Parties are correct, then § 301 of the LMRA requires MDL Plaintiffs to arbitrate their claims because they agreed in the CBAs to resolve their disputes before an arbitrator, not in federal court. The parties completed briefing on the motions to dismiss on January 28, 2013, and I heard oral argument on April 9, 2013. The NFL Parties’ motions to dismiss remain pending. C. Settlement Negotiations and Preliminary Approval On July 8, 2013, I ordered the Parties to participate in mediation with the hope that a negotiated, mutually beneficial settlement could be reached. Pending their negotiations, I agreed to withhold my ruling on the motions to dismiss that might have sent the litigation to arbitration. See Order, July 8, 2013, ECF No. 5128. I appointed retired United States District Court Judge Layn Phillips as mediator to help the Parties explore settlement. Id. A genuine dialogue between zealous and well-prepared adversaries transpired. Judge Phillips reports that the Parties engaged in “arm’s-length, hard-fought negotiations.” Decl. of Layn R. Phillips ¶ 5, ECF No. 6073-4 (“Phillips Decl.”). During this time, the Parties met for 8 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 9 of 132 RECEIVED NYSCEF: 11/12/2021 more than “twelve full days” of formal mediation. See id. ¶¶ 5-6; Decl. of Christopher Seeger ¶ 31, ECF No. 6423-3 (“Seeger Decl.”). “The negotiations were intense, vigorous, and sometimes quite contentious.” Supplemental Decl. of Layn R. Phillips ¶ 4, ECF No. 6423-6 (“Phillips Supp. Decl.”). The Parties came prepared for these discussions. The Parties had already retained well- qualified medical experts to help determine the merits of the case. These experts advised the Parties on difficult questions such as the type of head trauma associated with NFL Football and the long term health effects of trauma on Retired Players. See Phillips Decl. ¶ 8; Seeger Decl. ¶ 32; Decl. of Arnold Levin ¶¶ 14-15, ECF No. 6423-10 (“Levin Decl.”); Decl. of Dianne Nast ¶¶ 13-14 (“Nast Decl.”); Decl. of Dr. Scott Millis ¶ 11, ECF No. 6422-34 (noting he “assisted the NFL Parties during their negotiations” regarding the Test Battery and other Settlement provisions) (“Dr. Millis Decl.”); Decl. of Dr. John Kelip ¶ 16, ECF No. 6423-20 (noting he has consulted with Class Counsel on scientific issues since the summer of 2013) (“Dr. Kelip Decl.”). Judge Phillips met with the Parties’ experts and observed the valuable services they provided. See Phillips Decl. ¶8. In addition to experts, the Parties had access to considerable information about the Retired Players, including from the short form complaints filed with the Court. The NFL Parties’ records provided the Parties with biographical information about the vast majority of the former players, including the number of seasons played. See Material Provided by Counsel to Pls., Report of the Analysis Research Planning Corp. to Special Master Perry Golkin at 13-15, ECF No. 6167 (“Class Counsel’s Actuarial Materials”); Material Provided by Counsel to the NFL, Report of the Segal Group to Special Master Perry Golkin ¶ 16, ECF No. 6168 (“NFL Parties’ Actuarial Materials”). Co-Lead Class Counsel also created and maintained a comprehensive 9 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 10 of 132 RECEIVED NYSCEF: 11/12/2021 database of the symptoms of MDL Plaintiffs. As a result, the Parties had information about the current cognitive impairment of over 1,500 Retired Players. See NFL Parties’ Actuarial Materials ¶ 16; Seeger Decl. ¶ 20. The mediation efforts were successful. On August 29, 2013, after two months of near continuous negotiations, the Parties signed a term sheet setting forth the “principal terms of a settlement.” See Order, Aug. 29, 2013, ECF No. 5235. The term sheet included $765 million to fund medical exams and provide compensation for player injuries. Id. Given the Parties’ progress in reaching a settlement, I continued to withhold decision on the NFL Parties’ motions to dismiss on preemption grounds. Id. The Parties negotiated further, and over the next four months established the specific terms of the Settlement. On January 6, 2014, Class Counsel, 5 with Kevin Turner and Shawn Wooden as Class Representatives, filed the complaint in Turner v. Nat’l Football League, No. 14-0029, ECF No. 1 (E.D. Pa. Jan. 6, 2014) (the “Class Action Complaint”). 6 In that action, Class Counsel sought preliminary class certification and preliminary approval of their proposed settlement. See Mot. for Prelim Approval, Jan. 6, 2014, ECF No. 5634. Though I commended the Parties for their efforts, I denied the motion for preliminary class certification and preliminary approval of the Settlement without prejudice. See Order Den. Mot. for Prelim. Approval, ECF No. 5658. I was primarily concerned that the capped fund would exhaust before the 65-year life of the Settlement; I feared that “not all Retired Players who ultimately receive[d] a Qualifying Diagnosis or their related claimants will be paid.” Mem. Op. 5 Class Counsel includes Co-Lead Class Counsel Christopher Seeger and Sol Weiss, Subclass Counsel Arnold Levin and Dianne Nast, as well as Gene Locks and Steven Marks. See Settlement § 2.1(r). 6 Turner was originally marked as a related action to this MDL. On June 25, 2014, “in the interest of justice and to promote judicial economy and avoid duplication,” I ordered that “[a]ll motion practice and other filings related to or based on Turner v. NFL, shall be filed only on [this] MDL docket . . . .” Turner, ECF No. 20. 10 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 11 of 132 RECEIVED NYSCEF: 11/12/2021 at 10, ECF No. 5657. I was also concerned that the deal released claims against the National College Athletic Association (“NCAA”) and other collegiate, amateur, and youth football organizations. Id. at 10 n.6. To address my concerns, I ordered the Parties to share the actuarial data and analyses performed by their economic experts 7 with Special Master Perry Golkin. 8 Five more months of arm’s-length, hard fought negotiations followed. Special Master Golkin oversaw these negotiations, during which the Parties revisited many provisions of the Settlement. See Seeger Decl. ¶ 61. These negotiations proved fruitful. The Parties ultimately reached a revised settlement. The revised deal retained the same basic structure as the original, and included large maximum awards for Qualifying Diagnoses subject to a series of offsets, a separate fund to allow for baseline assessment examinations for Retired Players, and a fund dedicated to educating former players and promoting safety and injury prevention for football players of all ages. Crucially, this revised deal uncapped the fund to compensate Retired Players with Qualifying Diagnoses; the NFL Parties agreed to pay all valid claims over the duration of the settlement regardless of the total cost. The NFL Parties also agreed to narrow the scope of the Releases. In exchange for these concessions, the NFL Parties received heightened anti-fraud provisions to ensure that funds were only disbursed to deserving claimants. On June 25, 2014, Class Counsel filed a motion for preliminary class certification and preliminary approval of the Settlement. See Mot. for Prelim. Approval, June 25, 2014, ECF No. 6073. 7 The Parties have since disclosed this information, and it is publicly available. See Class Counsel’s Actuarial Materials; NFL Parties’ Actuarial Materials. 8 I appointed Special Master Golkin on December 16, 2013 in light of the “expected financial complexity of the proposed settlement.” See Order Appointing Special Master at 1, ECF No. 5607. As always, I am grateful to Mr. Golkin for his forthright and astute advice. 11 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 12 of 132 RECEIVED NYSCEF: 11/12/2021 On July 7, 2014 (“Preliminary Approval Date”), after making a preliminary determination on class certification for the purpose of issuing notice of settlement, 9 I granted the motion for preliminary class certification and preliminary approval of the Settlement. See Order Granting Prelim. Approval, ECF No. 6084. As discussed more fully infra Section I.E, on February 13, 2015, the Parties amended the Settlement, making it more favorable to the Class. See Parties’ Joint Amendment, ECF No. 6481. D. The Settlement The Class consists of “[a]ll living NFL Football Players who, prior to the date of Preliminary Approval . . . retired . . . from playing professional football with the NFL,” as well as their Representative and Derivative Claimants. See Settlement §§ 1.1, 2.1(ffff). Representative Claimants are those duly authorized by law to assert the claims of deceased, legally incapacitated, or incompetent Retired Players. See id. § 2.1(eeee). Derivative Claimants are those, such as parents, spouses, or dependent children, who have some legal right to the income of Retired Players. See id. § 2.1(ee). The Settlement sorts Class Members into one of two subclasses based on Retired Players’ injuries as of the Preliminary Approval Date. Subclass 2 consists of: Retired NFL Football Players who were diagnosed with a Qualifying Diagnosis prior to the date of the Preliminary Approval and Class Certification Order and their Representative Claimants and Derivative Claimants, and the Representative Claimants of deceased Retired NFL Football Players who were diagnosed with a Qualifying Diagnosis prior to death or who died prior to the date of the Preliminary Approval and Class Certification Order and who received a postmortem diagnosis of CTE. Id. § 1.2(b). 9 Despite language in the Preliminary Approval Order and accompanying Memorandum that the Class had been “conditionally” certified, I reserved class certification analysis until after the Fairness Hearing to allow for full development of the record. See In re Nat’l Football Players Concussion Injury Litig., 775 F.3d 570, 584-87 (3d Cir. 2014). 12 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 13 of 132 RECEIVED NYSCEF: 11/12/2021 Subclass 1 consists of the remainder: Retired NFL Football Players who were not diagnosed with a Qualifying Diagnosis prior to the date of the Preliminary Approval and Class Certification Order and their Representative Claimants and Derivative Claimants. Id. § 1.2(a). The Settlement has three primary components. An uncapped Monetary Award Fund (“MAF”), overseen by a Claims Administrator, provides compensation for Retired Players who submit sufficient proof of Qualifying Diagnoses. A $75 million Baseline Assessment Program (“BAP”) provides eligible Retired Players 10 with free baseline assessment examinations of their objective neurological functioning. BAP funds will also be used to provide BAP Supplemental Benefits, including counseling and prescription drug benefits, to those who are impaired but have not deteriorated to the point of receiving a Qualifying Diagnosis. Third, an Education Fund will educate Class Members regarding the NFL Parties’ existing CBA Medical and Disability Benefits programs, and promote safety and injury prevention for football players of all ages, including youth football players. I will appoint Wendell Pritchett and Jo-Ann Verrier jointly as Special Master responsible for overseeing, implementing, and administering the entire Settlement. See id. § 10.1. 10 Only Retired Players may receive Qualifying Diagnoses or baseline assessment examinations because they are the only Class Members who played NFL Football. Because Representative Claimants assume the legal rights of the Retired Players they represent, the Settlement treats them similarly to Retired Players for the purposes of calculating, submitting, and receiving Monetary Awards. Derivative Claimants are Class Members because of their relationship with a Retired Player, not because they stand in the shoes of a Retired Player. As a result, the Derivative Claimant Awards work somewhat differently. Derivative Claimants are eligible to receive up to 1% of a Retired Player’s Monetary Award. Unlike a Representative Claimant, a Derivative Claimant must wait until a Retired Player files for a Monetary Award, and then file a Derivative Claim Package seeking a portion of that Award. See Settlement § 7.2. In most other respects, Derivative Claimants are treated similarly to Representative Claimants. Because a Retired Player is essential to every claim, for ease of reference I generally describe the requirements Retired Players must satisfy to receive benefits of the Settlement. 13 FILED: NEW YORK COUNTY CLERK 11/12/2021 05:30 PM INDEX NO. 652933/2012 NYSCEF DOC. NO. Case 684 2:12-md-02323-AB Document 6509 Filed 04/22/15 Page 14 of 132 RECEIVED NYSCEF: 11/12/2021 i. Monetary Award Fund The Monetary Award Fund is an uncapped, inflation-adjusted fund that provides cash awards for Retired Players who receive Qualifying Diagnoses. By cost, the MAF constitutes the majority of the Settlement. 11 The Settlement creates six Qualifying Diagnoses: Level 1.5 Neurocognitive Impairment, Level 2 Neurocognitive Impairment, Alzheimer’s Disease, Parkinson’s Disease, Amyotrophic Lateral Sclerosis (“ALS”), and Death with CTE. Levels 1.5 and 2 Neurocognitive Impairment are defined by the Settlement. They require both a decline in cognitive function and a loss of functional capabilities, such as the ability to hold a job or perform household chores. See generally id. Ex. 1. These diagnoses correspond with commonly accepted clinical definitions of mild 12 and moderate dementia, respectively. 13 The Settlement adopts the definitions of Alzheimer’s Disease, Parkinson’s Disease, and ALS found in the World Health Organization’s International Classification of Diseases. Id. Diagnoses of Alzheimer’s Disease or Parkinson’s Disease may alternatively meet the definitions provided by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM- 5”). Id. Death with CTE requires a post-mortem diagnosis of CTE made by a board-certified neuropathologist. Id. After the Effective Date of the Settlement, only pre-approved Qualified MAF Physicians and Qualified BAP Providers may render Qualifying Diagnoses. See id. §§ 5.7(a)(i), 6.3(b), 6.5(a), Ex. 1. The Claims Administrator and BAP Administrator will select these specialists, subject to the written approval of Co-Lead Class Counsel and the NFL Parties. See id. §§ 5.7(a)(i), 6.5(a).