Curtis Anderson's Plea Against NFL Concussion Settlement

Case: 15-2230
Document: 003112052962
Page: 1
Date Filed: 08/23/2015
UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT
Nos. 15-2206, 15-2217, 15-2230, 15-2234, 15-2272, 15-2273,

15-2290, 15-2291, 15-2292, 15-2294, 15-2304, and 15-2305
IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS CONCUSSION
INJURY LITIGATION
Curtis L. Anderson,
Appellant in 15-2230
(E.D. Pa. No. 2-12-md-02323)
BRIEF OF APPELLANT
On Appeal From the United States District Court

For the Eastern District of Pennsylvania
Anita B. Brody, District Judge
George W. Cochran
1385 Russell Drive
Streetsboro, Ohio 44241
T: 330.626.5600
F: 330.230.6136
lawchrist@gmail.com
Counsel to Appellant
Curtis L. Anderson
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TABLE OF CONTENTS
Table of Contents....i
Table of Authorities....iii
Statement of Jurisdiction.....1
Statement of the Issues ...........................................2
Related Cases and Proceedings3
Statement of the Case..4
Statement of the Facts.7
Summary of Argument......10
Argument...12
I.
The District Court Abused Its Discretion By Ignoring

Appellants Fundamental Right To Object To The Proposed
Class Settlement Due Solely To De Minimus Tardiness
Regarding a Compulsory Deadline That Actually Undermined
the Courts Own Plan For Evaluating Its Fairness.12
A.
Standard of Review.12
B.
Because The Stated Rationale For Striking Appellants

Objections Contradicted The Only Legitimate Basis
For Imposing An Objection Deadline, The District Court
Abused Its Discretion.12
II.
The District Court Also Abused Its Discretion By Depriving

Appellant of His Separate Right To Legal Representation at the
Fairness Hearing Even Though It Was Expressly Guaranteed By
The Notice of Class Settlement..16
i
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III.
IV.
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The District Court Also Abused Its Discretion By Approving A

Class Notice That Failed To Disclose The Impact Of Governmental
Subrogration On Class Distributions18
A.
The Class Notices Failure to Disclose The Impact Of

Subrogation Offsets On Class Distributions Violated Members
Due Process Right To Adequate Notice And An Opportunity
To Be Heard Prior To Releasing Their Claims.18
B.
The Class Notice Failed To Apprise Class Members of

Subrogations Significant Impact On Their Distributions.21
C.
The Current Subrogation Scheme Is Incomprehensible To The

Class and Unworkable In Practice.22
The District Court Also Abused Its Discretion By Approving A

Settlement That Treats Identically Situated Class Members
Differently Based Upon an Arbitrary Cut-off Date.............................25
Conclusion25
Certifications ................................................................................................... ..26,27
Certificate of Service ...................................................................................... 27
ii
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TABLE OF AUTHORITIES
Page
Armstrong v. Board of School Directors, 616 F.2d 305

(7th Cir. 1980)
19
Bowen v. SouthTrust Bank of Alabama, 760 F.Supp. 889

(M.D.Ala. 1991)
13
Brown v. Ala. Dept. of Transp., 597 F.3d 1160, 1173

(11th Cir.2010)
14,17
Citizens for Police Accountability Political Comm. V. Browning,

572 F.3d 1213 (11th Cir.2009)
14
Devlin v. Scardelletti, 536 U.S. 1 (2002)
13
Hansberry v. Lee, 311 U.S. 32 (1940)
19
Henderson v. Eaton, No. Civ.A. 01138, 2002 WL 31415728

(E.D.La. Oct. 25, 2002).
15
Hirshon v. Republic of Bolivia, 979 F.Supp. 908 (D.D.C.1997).
15
In re General Motors Corp. Engine Interchange Litigation,

594 F.2d 1106, 1120 (7th Cir. 1979), cert. denied,
--- U.S. ----, 100 S.Ct. 146, (1979)..
19
In re Prudential Ins. Co. of Am. Sales Practices Litig.,

148 F.3d 283 (3d Cir. 1998).
20
Moreland v. Rucker Pharmacal Co., 63 F.R.D. 611

(W.D.La.1974)..
19
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)
20
National Hockey League v. Metropolitan Hockey Club, Inc.,

427 U.S. 639 (U.S.Pa.,1976).
iii
16
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Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999).
20
Rodriguez v. West Publg Corp., 563 F.3d 948 (9th Cir. 2009)..
20
Sullivan v. DB Investments, Inc., 667 F.3d 273 (3rd Cir. 2011)
12
Williams v. Morgan, 111 U.S. 684 (1884)..
13
Rules
Fed. Rule Civ. Proc. 23...
20
L.A.R. 28.1(b).
12
Statutes
Medicare Secondary Payer Act [42 U.S.C. 1395y(b)(2)]
18
Medicaid [42 U.S.C. 1396a(a)(25)].
18
Treatises
2 H. Newberg & A. Conte, Class Actions 11.55
13
3 Herbert B. Newberg et al., Newberg on Class Actions 8:32

(4th ed. 2012).
20
3B Moore's Federal Practice, P 23.80(1)..
19
iv

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STATEMENT OF JURISDICTION
1. District Courts Jurisdiction. The District Court had jurisdiction over

this case under 28 U.S.C. 1332(d) based upon diversity of citizenship,
and because the total amount in controversy exceeds
$5,000,000.
2. Appellate Jurisdiction. This Court has jurisdiction pursuant to 28
U.S.C. 1291. The district court entered its order and final judgment
on April 22, 2015. A. 40. Appellants filed their Notice of Appeal on
May 14, 2015. A. 4.
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STATEMENT OF THE ISSUES

1. Did the district court abuse its discretion by ignoring Appellants fundamental right
to object to the proposed class settlement based solely on his de minimus tardiness to a
compulsory deadline that actually undermined the Courts own plan for evaluating the
settlements fairness? (This issue was raised in Appellants objections and
response to Appellees motion to strike objections. Doc. Nos. 6248 and 6255. It was
overruled in the district court's opinion. A.4411.)
2. Did the district court abuse its discretion by depriving Appellant of his right to
legal representation at the fairness hearing expressly guaranteed in the notice of class
settlement? (This issue was raised in Appellants objections and response to
Appellees motion to strike objections. Doc. Nos. 6248 and 6255. It was overruled
in the district court's opinion A.4411.)
3. Did the district court abuse its discretion by approving a class notice that failed
to disclose the impact of subrogration on class distributions? (This issue was
raised in Appellants objections but was not considered at the fairness hearing.
Doc. No. 6248.)
4. Did the district court abuse its discretion by approving a settlement that treats
class members differently based upon an arbitrary cutoff date? (This issue was
raised in Appellants Objections and at the Fairness Hearing. Doc. No. 6248, A.
5402-5460. It was overruled in the district court's opinion. A. 58.)
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RELATED CASES AND PROCEEDINGS

This appeal has been consolidated with eleven other appeals from the
district court's approval order. This case was before this Court previously on
an appeal of preliminary approval. See In re National Football League Players
Concussion Injury Litigation, 775 F.3d 570 (3rd Cir. 2014).
Several other appeals have been filed from the district court's settlement
approval. Nos. 15-2206, 15-2217, 15-2234, 15-2272,15-2273, 15-2290, 15-2292,
15-2294, 15-2304, 15-2305. The Court consolidated the appeals in an order
entered on June 16, 2015, noting that the parties may file a consolidated brief or
join in or adopt portions by reference. Doc. No. 00311992229.
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STATEMENT OF THE CASE

This appeal arises from the settlement of a class action lawsuit against the
NFL by a class of retired NFL players for injuries caused by traumatic brain
injury sustained while playing in the NFL. The centerpiece of this litigation
when it was filed was the condition known as Chronic Traumatic
Encephalopathy, or CTE, the disease that is commonly referred to as the
"industrial disease" of the NFL. Of the 79 former NFL players who have had
their brains autopsied following their deaths, 76 were found to have evidence of
CTE. A. 138, A. 5416.
Over the course of the litigation, Class Counsel, despite having alleged
claims for personal injury related to CTE in the complaints, lost confidence in
the viability of the CTE diagnosis, conceding that the science on CTE was too
immature to support recovery for class members suffering from that condition.
Rather than amending the class definition or deleting the CTE claims from the
complaint, however, Class Counsel proceeded to settle those claims for no
compensation, while obtaining recovery for other, rarer, conditions that are not
exclusively associated with head trauma. Class Counsel explicitly conceded
that this tradeoff had taken place, and that releasing all future CTE claims for no
compensation had been traded for enhanced compensation for Alzheimer's,
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Parkinson's Disease and ALS. A. 3860 ("Expanding the settlement to

include CTE would have meant making cuts elsewhere, such as abandoning
coverage for ALS, Alzheimer's Disease, or Parkinson's Disease."). The longform notice of class settlement did not disclose these deficiencies. A.1542.
Neither did it warn that failure to meet the objection deadline operates as a
waiver of a class members rights. To the contrarythe notice represented that:
On or before November 3, 2014, you may ask the Court for
permission to speak at the Fairness Hearing. The Court will determine
whether to grant you permission to speak. To make such a request,
you must send written notice to the Court stating your intention to
speak at the In re National Football League Players Concussion
Injury Litigation, No. 2:12-md-02323 Fairness Hearing. Be sure to
include your name, address, telephone number, and your signature.
Your request to speak must be sent to the Court at the address in
Question 35. (emphasis original)
Appellants seventeen objections to the settlement (along with notice of his
intent to appear at the fairness hearing) were entered into the record two days after
the postage deadline approved by the Court. As explained in Appellants Notice,
there was just cause for this nominal tardiness:
For cause, Anderson hereby requests the Courts consideration of his
objections despite missing the official deadline for timely submission
by two days. First, Anderson only recently learned that the class notice
does not accurately summarize the actual settlement. Second,
Andersons tardiness is de minimus. Third, it will not unduly delay
proceedings or prejudice the parties. Fourth, all objectors have been
given permission to supplement their objections after the fairness
hearing. Finally, class counsel has not moved for a fee award or
supported its fee request.
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Nonetheless, Plaintiffs moved to strike Appellants objections on timeliness

grounds one week later. Doc. No. 6253. By that time, the district court had already
decided to allow all parties (including objectors) to file supplemental briefs after
the fairness hearing on November 19, 2015. Doc. No. 6203. In the interest of
judicial economy, the court also asked objector counsel to avoid duplicating
arguments by agreeing to appoint representative advocates. A.3078.
After a joint meeting of objector counsel, Appellants attorney was selected
to present one of the main arguments at the fairness hearing. Just two days before
the hearing would commence, however, the district court granted Plaintiffs motion
to strike Appellants objections and even prohibited his counsel from making an
appearance. A.4411, A.4412. After the fairness hearing, numerous objectors were
able to bolster their factual and legal arguments against the settlements fairness by
submitting supplemental briefs pursuant to the courts prior order. Ultimately, the
court approved the settlement as presented over all objections. A.58.
As a result of striking Appellants objection, numerous concerns about
governmental subrogation overlooked in the class notice were silenced because no
other objector had raised the issue. These concerns include: (1) that
Medicare/Medicaid subrogation rights will block payments to class members; (2)
that the concept of subrogation offsets is too complex for most class members to
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comprehend; (3) that the offsets could not be calculated in a meaningful way for
class members to decide whether to object or to opt out of the settlement; (4) that a
global resolution of Medicares subrogation rights is equally problematic; (5) that a
Medicare settlement could not be allocated in a manner that allows each class
member to estimate his own offset anyway; (6) that the Lien Resolution
Administrator will not be appointed until after expiration of the appeal period;
and (7) that no reasonable solution to any of the foregoing problems had been
reached among the parties. Accordingly, Appellant filed his Notice of Appeal on
May 15, 2015. A.6.
STATEMENT OF FACTS
This class action was brought by a class of retired players for injuries
caused by head trauma suffered while playing in the NFL. The centerpiece of
this action when it was filed was a claim for compensation for Chronic
Traumatic Encephalopathy, or CTE, a disease which, as of the writing of this
Brief, can only be diagnosed through an autopsy. Class Counsel knew when they
filed this lawsuit that there was no way of proving that a former player had CTE
while that player was living. Nevertheless, despite this enormous defect in their
case for CTE, Class Counsel alleged claims for relief related to CTE for all
retired players, not just on behalf of those who had died by the time of filing.
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Indeed, the main reason why the issue of the danger of concussions in the
NFL had come to prominence was the high-profile suicides of former players
such as Junior Seau and Dave Duerson, whose brains were later found to have
the marker of CTE during autopsy. These high profile deaths brought
unprecedented media attention to the danger of repeated concussions and the
disease of CTE that had previously gone underreported. This media spotlight, in
turn, led to the filing of this class action lawsuit seeking compensation for the
debilitating symptoms of CTE, including the symptom of suicidality that
characterizes CTE.
The lawsuit also made claims for other diseases associated with head
trauma, including Parkinson's Disease, Alzheimer's, and ALS, even though
these diseases affect a far smaller number of retired players than CTE does,
and also afflict many people who never suffered head trauma. A. 691.
Moreover, only one of these diseases was represented by a Lead Plaintiff
Kevin Turner suffered from ALS at the time he filed this lawsuit. There is no
Lead Plaintiff suffering from Parkinson's Disease, Alzheimer's, Level 1.5 or
Level 2 Dementia, or CTE. Shawn Wooden, the only other Lead Plaintiff
besides Kevin Turner, currently claims to be suffering from no compensable
condition, but alleges that he may develop CTE in the future. A. 5360.
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As the Plaintiffs and the NFL argued vociferously at the fairness hearing,
the Plaintiffs never had any realistic chance of prevailing on their CTE claims
on behalf of living players, because the science on CTE is too nascent and
undeveloped. Only deceased players can be diagnosed with CTE. Therefore,
Class Counsel filed this case knowing they had no chance of prevailing on the
CTE claims, but filed them anyway as a bargaining chip to trade away in
settlement negotiations for enhanced compensation of other diseases that will
affect a small minority of class members.
In 2014, the parties entered into a settlement of the claims alleged in this
litigation that compensates five defined conditions at set dollar amounts that
decline as the age at which the former player is diagnosed goes up, and also vary
depending on years played in the NFL. A. 1497. The covered conditions are
Parkinson's, Alzheimer's, ALS and Level 1.5 and Level 2 Cognitive Impairment.
A. 1507. CTE is compensated only for those former players who died prior to the
date of settlement, July 7, 2014, a date which was later moved to the date of the
district court's approval order, April 22, 2015. A. 1466.
Only a small percentage of class members are expected to qualify for
compensation for the five diseases other than CTE. The NFL and Class Counsel
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have estimated that the total number of class members who will qualify for
payment is 3488 of the 20,500 former players in the class. A.1738. The vast
majority of class members, however, will probably die with evidence of CTE in
their brains. The settlement only compensates a handful of such players -- those
who died prior to April 22, 2015.
SUMMARY OF ARGUMENT
1.
Judicial deadlines for objecting to class settlements serve the
legitimate purpose of preventing eleventh-hour challenges that prejudice the parties

without just cause. The following circumstances surrounding the district courts
decision to strike Appellants objections clearly demonstrate an abuse of this
discretion: (1) Appellants objections were filed no later than others meeting the
postage deadline; (2) the parties own deficient class notice was directly
responsible for Appellants tardiness; (3) the timing of Appellants objections did
not prejudice the parties in any way; (4) refusing Appellants counsel the
opportunity to present argument at the fairness hearing was a separate violation of
the class notice. Accordingly, the order striking Appellants objections should be
reversed so that the merits of Appellants arguments can be considered on appeal.
2.
The class notices failure to disclose subrogations impact on class
distributions violated members due process right to adequate notice and a

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meaningful opportunity to be heard before releasing their claim. A proper notice

would have disclosed that: (1) Medicare/Medicaid subrogation offsets may
completely block payments to class members; (2) these potential offsets cannot be
calculated in any meaningful way that would aid a class members decision on
whether to object or opt out of the settlement; (3) neither could the equally
problematic global resolution of Medicares subrogation rights enable a class
member to calculate his offset; (4) the Lien Resolution Administrator designated
to champion class members rights in this critical area will not be appointed until
after expiration of the appeal period; and (5) no reasonable solution to any of the
foregoing problems has been reached among the parties.
3.
The approved settlement impermissibly treats similarly situated
class members differently based solely upon an arbitrary cutoff date for Death
with CTE compensation, thereby releasing future CTE claims (held by the
majority of the class) without any consideration. Because the study of CTE is
still in its infancy, a current diagnosis requires dissecting the brain after death.
Instead of releasing future CTE claims prematurely, Class Counsel should
have limited the class to former players presently suffering from a "welldefined and robustly studied condition". Claims for the undeveloped and
immature condition known as CTE should have been excluded.
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ARGUMENT
I.
The District Court Abused Its Discretion By Ignoring Appellants

Fundamental Right To Object To The Proposed Class Settlement Due
Solely To De Minimus Tardiness Regarding a Compulsory Deadline That
Actually Undermined the Courts Own Plan For Evaluating Its Fairness.
A.
Standard of Review.
A district courts approval of a class action settlement is reviewed for

abuse of discretion. Sullivan v. DB Investments, Inc., 667 F.3d 273, 295 (3rd
Cir. 2011). Whether the lower court used the correct legal standard is
reviewed de novo. Id. The district courts decision to strike Appellants
objections and prohibit his counsel from appearing at the fairness hearing
should be reviewed for abuse of discretion. This Courts review of the district
courts approval of the settlement itself, however, is plenary since the
incorrect legal standard was applied. L.A.R. 28.1(b)
B.
Because The Stated Rationale For Striking Appellants Objections

Contradicted The Only Legitimate Basis For Imposing An
Objection Deadline, The District Court Abused Its Discretion.
This appeal provides a unique opportunity to clarify how a district court can
prevent undue prejudice from a tardy objection without unduly silencing a class
members voice. The key is looking beyond an arbitrary date to the policy behind
it. A class members fundamental right to register objections to a proposed
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settlement prior to the fairness hearing has been consistently recognized under the
Federal Rules of Civil Procedure. See Fed. Rule Civ. Proc. 23(e) (A class action
shall not be dismissed or compromised without the approval of the court, and
notice of the proposed dismissal or compromise shall be given to all members of
the class in such manner as the court directs); see also 2 H. Newberg & A. Conte,
Class Actions 11.55, p. 11132 (3d ed. 1992) (explaining that Rule 23(e) entitles
all class members to an opportunity to object).
The District Courts approval of the settlement in the present casebinding
Appellant as a member of the classamounted to a final decision of
[Appellants] right or claim that triggered his right to appeal. Williams v. Morgan,
111 U.S. 684, 699 (1884). Appellant may only appeal that aspect of the district
courts order that affects him: the decision to strike or ignore his objections. Id., at
6. Conversely, no class representative may enforce Appellant s right once the
named parties reach a settlement that is approved over his objections. Devlin v.
Scardelletti, 536 U.S. 1, 9 (2002).
That non-named class members are parties to the proceedings in the sense of
being bound by the settlement is key to Appellants standing. In light of the
conflict between class counsel and class members once an agreement is signed,
the courts independent evaluation of fundamental fairness is imperative. Bowen
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v. SouthTrust Bank of Alabama, 760 F.Supp. 889 (M.D.Ala. 1991). An objectors

ability to raise awareness of a settlements negative consequences is critical to
fulfilling the courts mandate. Great Neck Capital Appreciation Inv. Partnership,
L.P. v. PricewaterhouseCoopers, 212 F.R.D. 400 (E.D.Wis.,2002). The court
explained why:
Class counsel and defendants counsel may reach a point where they are
cooperating in an effort to consummate the settlement. Courts, too, are
often inclined toward favoring the settlement, and the general atmosphere
may become largely cooperative. In re Prudential Ins. Co. of Am. Sales
Practice Litig. Agent Actions, 278 F.3d 175, 202 (3d Cir.2002) (Rosenn,
J., concurring and dissenting). Thus, objectors serve as a highly useful
vehicle for class members, for the court and for the public generally.
From conflicting points of view come clearer thinking. Id. Therefore, a
lawyer for an objector who raises pertinent questions about the terms or
effects, intended or unintended, of a proposed settlement renders an
important service.
Id. at 412-13. Against this backdrop, it is abuse of discretion to strike a class
members objection before the fairness hearing if the court applies an incorrect
legal standard, applies the law in an unreasonable or incorrect manner, follows
improper procedures in making a determination, or makes findings of fact that are
clearly erroneous. Brown v. Ala. Dept. of Transp., 597 F.3d 1160, 1173 (11th
Cir.2010) (quoting Citizens for Police Accountability Political Comm. V.
Browning, 572 F.3d 1213, 121617 (11th Cir.2009)). After all, the very objective of
the fairness hearing is for parties to object to a settlements terms, class, or process.
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Henderson v. Eaton, No. Civ.A. 01138, 2002 WL 31415728, at *2 (E.D.La. Oct.

25, 2002) ([T]he Court held a final fairness hearing for the purpose of receiving
and ruling on any objections or opt-outs.). It stands to reason that missing an
arbitrary deadline does not justify striking an objection without proof that the
parties were actually prejudiced. Accordingly, numerous courts have accepted
objections to a class action settlement agreement when filed before the judgment
becomes final. See, e.g., Hirshon v. Republic of Bolivia, 979 F.Supp. 908, 91213
(D.D.C.1997) (denying a motion challenging the approved settlement which was
not presented to the court prior to approval, either in writing or at the final fairness
hearing).
In the present case, the circumstances surrounding the decision to strike
Appellants objections leave little doubt that the district court abused its discretion.
Because Appellants objections were filed on October 16, 2014, they were
docketed no later than other objections mailed by the postage deadline of October
14, 2014. More importantly, the parties own deficient class notice was directly
responsible for Appellants tardiness. First and foremost are the burdensome
requirements for registering a class members objections (including the unusual
requirement that Appellant bear his own signature on the objection). Another
widespread complaint was that the notice sent to class members did not accurately
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summarize the actual terms of agreement. Neither did the notice warn that failure
to meet the objection deadline would operate as a waiver of a class members
rights. Once Appellant was made aware of these discrepancies, he was quick to
assert his opposition. Other objectors, citing Appellees failure to disclose the basis
for waiving significant class rights, went so far as to request an extension of the
objection and exclusion deadlines. In response, the Court decided to allow
supplemental briefing after evidentiary support for the settlement was presented at
the fairness hearing. Doc. No. 6203.
The nave notion that a district court need not consider the circumstances
surrounding a tardy objection is hard to find and difficult to justify. In reality, the
case cited in support of Appellees original motion represents the most extreme
sanction for flagrant discovery abuse due to bad faith, willful or intentional
conduct. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S.
639, 641 (U.S.Pa.,1976). Since no such showing was made in the present case, this
Court should reverse the district courts order striking Appellants objections and
affirm his standing to appeal the settlements approval.
II.
The District Court Also Abused Its Discretion By Depriving Appellant of

His Separate Right To Legal Representation at the Fairness Hearing Even
Though It Was Expressly Guaranteed By The Notice of Class Settlement.
Even if Appellant filed his objections two days after the mailing deadline, the
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notice of his intent to appear at the fairness hearing through counsel was served well
within the deadline established by the settlement notice. Specifically, the notice
represented that:
On or before November 3, 2014, you may ask the Court for
permission to speak at the Fairness Hearing. The Court will determine
whether to grant you permission to speak. To make such a request,
you must send written notice to the Court stating your intention to
speak at the In re National Football League Players Concussion
Injury Litigation, No. 2:12-md-02323 Fairness Hearing. Be sure to
include your name, address, telephone number, and your signature.
Your request to speak must be sent to the Court at the address in
Question 35. (emphasis original)
Nonetheless, the sole grounds given by the district court for prohibiting
Appellants counsel appearance at the fairness hearing was his late-filed notice
of objections on October 16, 2014. As stated in its Order:
Co-Lead Class Counsels Motion to Strike the Late-Filed Objection of
Curtis L. Anderson (ECF No. 6523) is GRANTED. Because he no
longer has a recognized objection, George W. Cochran, Esq., will not
be permitted to appear at the November 19 Fairness Hearing.
A.4411. The district courts banishment of Appellants counsel is variously
guilty of applying an incorrect legal standard, applying the law in an unreasonable
manner, following improper procedures in making a determination, and making a
finding of fact that is clearly erroneous. Any of the foregoing errors is sufficient
grounds for reversing Appellants expulsion from the fairness hearing. Brown v.
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Ala. Dept. of Transp., 597 F.3d 1160, 1173 (11th Cir.2010). This error provides
independent grounds for affirming Appellants standing to appeal the settlements
fairness.
III.
The District Court Also Abuse Its Discretion By Approving A Class

Notice That Failed To Disclose The Impact Of Subrogation On Class
Distributions.
Even if the current settlement were otherwise satisfactory, the impact of
the Medicare Secondary Payer Act [42 U.S.C. 1395y(b)(2)] could indefinitely
block payments to class members. Similar provisions under Medicaid [42 U.S.C.
1396a(a)(25)] pose the same problem. As explained below, the potentially
significant impact of those laws, and the NFLs insistence on full compliance
with them before any money can be paid out to any class member, have not been
disclosed to the class in a way that could be readily comprehended. Because the
potential impact of such laws is so greatand the disclosure was woefully
inadequateit was abuse of discretion to approve the settlement without
providing class members a full explanation of this critical topic and/or directing
the parties to arrive at a more reasonable solution.
A.
The Class Notices Failure to Disclose The Impact Of

Subrogation Offsets On Class Distributions Violated Members
Due Process Right To Adequate Notice And Opportunity To Be
Heard Prior To Releasing Their Claims.
Balanced against the overriding public interest in favor of class settlements

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are strong countervailing public policies that dissuade automatic judicial

acceptance of such agreements. Moreland v. Rucker Pharmacal Co., 63 F.R.D.
611, 615 (W.D.La.1974). First and foremost is the fact that most of those whose
rights are affected are not involved in its negotiation or able to voice their views.
Hansberry v. Lee, 311 U.S. 32, 42-43, (1940); 3B Moore's Federal Practice, P
23.80(1) at 23-504 (3d ed. 1980). Instead, they must rely on the representation of
the class representatives and class counsel to protect their interests. While this
representation is no doubt vigorous in most cases, on occasion the negotiating
parties may find that their individual interests can best be served by a settlement
that is not in the best interests of the class.
Likewise, class counsel may be persuaded by the prospect of a substantial
fee to leave the class with less relief than could have been procured. See In re
General Motors Corp. Engine Interchange Litigation, 594 F.2d 1106, 1120 (7th
Cir. 1979), cert. denied, --- U.S. ----, 100 S.Ct. 146, 62 L.Ed.2d 95 (1979). A
settlement could also affect the class by imposing structural relief that members do
not agree with or, where the relief is both structural and compensatory, by
inflicting trade-offs at their expense. Armstrong v. Board of School Directors, 616
F.2d 305, 313 (7th Cir. 1980).
It follows that c l a s s notice must contain sufficient information to enable
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class members to make informed decisions on whether they should take steps to
protect their rights. See Rodriguez v. West Publg Corp., 563 F.3d 948, 96263
(9th Cir. 2009); Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1153 (8th Cir. 1999);
In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 326 (3d Cir.
1998); 3 Herbert B. Newberg et al., Newberg on Class Actions 8:32 (4th ed.
2012). As a matter of constitutional due process, meaningful notice of the
settlements terms is necessary before an individual's claim can be extinguished.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14, 70 S.Ct.
652, 656-57, 94 L.Ed. 865 (1950).
Accordingly, Rule 23(e)(1)(B) requires the court to direct notice in a
reasonable manner to all class members who would be bound by a proposed
settlement, voluntary dismissal, or compromise regardless of whether the class
was certified under Rule 23(b)(1), (b)(2), or (b)(3). Manual for Compl. Lit. at
21.312. The best practicable notice is that which is reasonably calculated, under
all the circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections. Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Among other things, the
settlement notice must: (1) clearly describe the essential terms of the proposed
settlement; (2) explain the options open to class members; (3) explain the
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procedures for allocating and distributing settlement funds; and (4) provide
information that will enable class members to calculate or estimate their individual
recoveries. Manual for Compl. Lit. at 21.312. Class members who are thus
properly notified are able to choose whether to accept the settlement, object to its
terms, or to opt out entirely. Requiring notice to putative class members also
insures that the putative class members' interests will be protected.
B. The Class Notice Failed To Apprise Class Members of
Subrogations Significant Impact On Their Distributions.
Despite all the hoopla over the NFLs monumental settlement of
players head trauma claims on a classwide basis, the vast majority of retired
NFL players who qualify for an award would be shocked to know that mostif
not allof their money could be seized by the U.S. government. Under the wellestablished principle known as subrogation, if a medical insurer paid the
medical bills of a party injured in an accident, the insurer is entitled to recoup its
costs if the injured party recovers from the person who caused the injury.
The same principle applies to the law governing Medicare. It requires
liability insurers and self-insured entitieshere the NFLto determine if a
claimant has or may receive Medicare benefits for injuries covered by a
settlement, report that amount to Medicare, and be responsible for repayment.
The application to future medical expenses is quite explicit. Pursuant to 42
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U.S.C. 1395y(b)(2)(A)(i), a claimant may not receive third-party compensation

before satisfying Medicares lien where payment has been made, or can
reasonably expected to be made. The implications for class members are deeply
embedded in the Settlement Agreement: (1) section 11.3(f) expressly includes
past, current, or future bills or costs; (2) section 11.3(g) forbids any payments
from the settlement fund until a class members medical liens are satisfied.
Nonetheless, the Short-Form Notice of class settlement did not mention
Medicare or Medicaid subrogation rights whatsoever. Even the Long Form
Notice only vaguely mentioned possible reductions in members recovery based
on any legally enforceable liens on the award. A.1542. Conspicuously absent is
any explanation that would enable a class memberand most attorneysto
understand what that phrase means, much less to evaluate its actual impact on
class distributions.
C. The Current Subrogation Scheme Is Incomprehensible To The
Class and Unworkable In Practice.
To add insult to injury, the NFL concussion settlement is far more
complicated than calculating a simple Medicare subrogation lien because it
provides for compensation at the front end, as soon as a player is diagnosed
with a qualifying disease. As a result, the ratio of incurred to estimated future
medical costs is actually inverted. Moreover, if Medicare must give its approval
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on a case-by-case basis, there will be a substantial delay in payment even after

the player receives a qualifying diagnosis. Alternatively, the settlement
contemplates a global settlement with Medicare with its own set of problems.
No one can predict how many class members will develop a compensable
diseasemuch less which ones, at what age, and at what level of severity.
Diagnosis alone does not answer what kind of treatment is necessary over what
period, and when in the future those needs will arise. Attempting to calculate
20,000 potential claims is little more than simply rolling the dice.
Even if the parties could agree on a global figure, they would need the
Courts approval because the settlement amounts promised to class members
would be reduced accordingly. In any event, the Court would lack sufficient
data to calculate how the Medicare payment should be allocated since the
settlement has no cap and payments must conform to a pre-determined grid.
Such uncertainties would make the Settlement Administrators task of
determining an amount applicable to each disease category virtually impossible.
Even with such a formula, the actual reduction for each class member would
depend on how many members contract a disease for which Medicare has a
claim. Bottom line: there is no way of answering these questions with even a
remote degree of certainty or fairness.
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Moreover, Section 11.1 of the settlement agreement creates the position

of Lien Resolution Administrator, whose duties appear to include negotiating
with Medicare to try to resolve these issues either on a case by case basis, or by
reaching a global settlement with Medicare (and any other lien holders) under
which lien holders would accept a fixed amount or perhaps a formula for all
class members. However, under section 11.1(a)(i), the lien administrator will
not be appointed until after the effective date, which is the date when all appeals
are concluded, Section 2.1(jj), and is likely to be several years in the future. Any
such resolution will necessarily be complex and take time, which means that the
promise of prompt payments upon final approval is illusory.
All things considered, the liens present so many open questions, which go
to the very heart of how much benefit class members will derive from the
settlement, that the Court cannot determine whether the proposed settlement is
fair, reasonable, and adequate until the lien questions are resolved. The
complexity of these questions underscores the total inadequacy of the notices
reference on the issue of how much each player will receive to whether [t]here
are any legally enforceable liens on the award. That phrase does not reasonably
inform a lawyer of these pitfalls, let alone a class member suffering from the
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after effects of concussions suffered while playing in the NFL. Because the
district court lacks authority to revise the settlement, it should have rejected the
settlement and directed the parties to re-negotiate a proposal that is not beset
with these flaws regarding subrogation offsets.
IV.
The District Court Abused Its Discretion By Approving A Settlement

That Treats Identically Situated Class Members Differently Based
Upon An Arbitrary Cutoff Date.
Pursuant to F.R.A.P. 28(i) and this Courts order consolidating all related
appeals, Appellant respectfully joins in and adopts by reference the following

opening briefs as they pertain to Appellants fourth assignment of error:
Appellant Scott Gilchrest (No. 15-2290)
Appellants Jimmie H. Jones, et al. (No. 15-2291)
Appellant Andrew Stewart (No. 15-2292)
Appellants Alan Faneca, et al. (No. 15-2304)
All other opening briefs filed by an objector-appellant subsequent to filing
Appellants opening brief on August 23, 2015.
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CONCLUSION
For the foregoing reasons, Appellant respectfully asks this Court to:
(1)
Reverse the district courts decision to strike Appellants objections;
(2)
Affirm Appellants standing to appeal the district courts approval of

the class settlement;
(3)
Overturn the district courts approval of the settlement for the reasons
stated herein.
Appellant Curtis L. Anderson
By his attorney,
George W. Cochran
George W. Cochran, Esq.
1385 Russell Drive
Streetboro, Ohio 44241
T: 330.626.5600
F: 330.230.6136
lawchrist@gmail.com
CERTIFICATION
I, George W. Cochran, hereby certify the following:

(1)
I am a member of the Bar of the Court of Appeals for the Third

Judicial Circuit.
/s/ George W. Cochran
George W. Cochran
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CERTIFICATE OF COMPLIANCE
Pursuant to FRAP 32(a)(7)(C), I hereby certify that this brief was
produced in Times New Roman 14-point type and contains no more than 6316
words.
I further certify that the electronic copy of this brief filed with the Court
is identical in all respects to the hard copy filed with the Court, and that the
electronic version is virus free as confirmed by the McAfee Security Scan
program.
George W. Cochran
CERTIFICATE OF SERVICE
I hereby certify that on August 23, 2015, I filed the foregoing Brief via
the ECF filing system for the United States Court of Appeals for the Third
Circuit, and that as a result each counsel of record received an electronic copy
of this Brief on August 23, 2015.
George W. Cochran
27

Curtis Anderson's Plea Against NFL Concussion Settlement

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Case: 15-2230

Date Filed: 08/23/2015

UNITED STATES COURT OF APPEALS FOR

Nos. 15-2206, 15-2217, 15-2230, 15-2234, 15-2272, 15-2273,

On Appeal From the United States District Court

Date Filed: 08/23/2015

The District Court Abused Its Discretion By Ignoring

Because The Stated Rationale For Striking Appellants

The District Court Also Abused Its Discretion By Depriving

Date Filed: 08/23/2015

The District Court Also Abused Its Discretion By Approving A

The Class Notices Failure to Disclose The Impact Of

The Class Notice Failed To Apprise Class Members of

The Current Subrogation Scheme Is Incomprehensible To The

The District Court Also Abused Its Discretion By Approving A

Date Filed: 08/23/2015

Armstrong v. Board of School Directors, 616 F.2d 305

Bowen v. SouthTrust Bank of Alabama, 760 F.Supp. 889

Brown v. Ala. Dept. of Transp., 597 F.3d 1160, 1173

Citizens for Police Accountability Political Comm. V. Browning,

Devlin v. Scardelletti, 536 U.S. 1 (2002)

Hansberry v. Lee, 311 U.S. 32 (1940)

Henderson v. Eaton, No. Civ.A. 01138, 2002 WL 31415728

Hirshon v. Republic of Bolivia, 979 F.Supp. 908 (D.D.C.1997).

In re General Motors Corp. Engine Interchange Litigation,

In re Prudential Ins. Co. of Am. Sales Practices Litig.,

Moreland v. Rucker Pharmacal Co., 63 F.R.D. 611

National Hockey League v. Metropolitan Hockey Club, Inc.,

Date Filed: 08/23/2015

Sullivan v. DB Investments, Inc., 667 F.3d 273 (3rd Cir. 2011)

Williams v. Morgan, 111 U.S. 684 (1884)..

Medicaid [42 U.S.C. 1396a(a)(25)].

3 Herbert B. Newberg et al., Newberg on Class Actions 8:32

3B Moore's Federal Practice, P 23.80(1)..

Date Filed: 08/23/2015

1. District Courts Jurisdiction. The District Court had jurisdiction over

Date Filed: 08/23/2015

STATEMENT OF THE ISSUES

Date Filed: 08/23/2015

RELATED CASES AND PROCEEDINGS

Date Filed: 08/23/2015

STATEMENT OF THE CASE

Date Filed: 08/23/2015

Parkinson's Disease and ALS. A. 3860 ("Expanding the settlement to

Date Filed: 08/23/2015

Nonetheless, Plaintiffs moved to strike Appellants objections on timeliness

Date Filed: 08/23/2015

Date Filed: 08/23/2015

Date Filed: 08/23/2015

Date Filed: 08/23/2015

Judicial deadlines for objecting to class settlements serve the

legitimate purpose of preventing eleventh-hour challenges that prejudice the parties

The class notices failure to disclose subrogations impact on class

distributions violated members due process right to adequate notice and a

Date Filed: 08/23/2015

meaningful opportunity to be heard before releasing their claim. A proper notice

The approved settlement impermissibly treats similarly situated

Date Filed: 08/23/2015

The District Court Abused Its Discretion By Ignoring Appellants

A district courts approval of a class action settlement is reviewed for

Because The Stated Rationale For Striking Appellants Objections

Date Filed: 08/23/2015

Date Filed: 08/23/2015