3rd Circuit Appeal - Plaintiffs Response

United States Court of Appeals
for the
Third Circuit

No. 14-8103
IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS
CONCUSSION INJ URY LITIGATION
OBJ ECTING CLASS MEMBERS: SEAN MOREY; ALAN FANECA;
BEN HAMILTON; ROBERT ROYAL; RODERICK CARTWRIGHT;
J EFF ROHRER; SEAN CONSIDINE,
Petitioners.

ON PETITION FOR LEAVE TO APPEAL FROM AN ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PLAINTIFFS-RESPONDENTS ANSWER TO FED. R. CIV. P. 23(f)
PETITION FOR PERMISSION TO APPEAL PRELIMINARY
SETTLEMENT APPROVAL ORDER CONDITIONALLY
CERTIFYING SETTLEMENT CLASS

CHRISTOPHER A. SEEGER
DAVID R. BUCHANAN
DIOGENES P. KEKATOS
SEEGER WEISS LLP
77 Water Street
New York, New York 10005
(212) 584-0700
SOL WEISS
ANAPOL SCHWARTZ
1710 Spruce Street
Philadelphia, Pennsylvania 19103
(215) 735-1130
Co-Lead Class Counsel
SAMUEL ISSACHAROFF
40 Washington Square South, 411J
New York, New York 10012
(212) 998-6580
On the Brief
(Additional Counsel Listed on Inside of Cover)

Case: 14-8103 Document: 003111692887 Page: 1 Date Filed: 07/29/2014

STEVEN C. MARKS
PODHURST ORSECK P.A.
City National Bank Building
25 W. Flagler Street, Suite 800
Miami, Florida 33130
(305) 358-2800
GENE LOCKS
LOCKS LAW FIRM
The Curtis Center
Suite 720 East
601 Walnut Street
(866) 562-5752
Class Counsel
ARNOLD LEVIN
LEVIN FISHBEIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
(215) 592-1500

Counsel for Subclass 1
DIANNE M. NAST
NAST LAW LLC
1101 Market Street, Suite 2801
(215) 923-9300


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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
INTRODUCTION ..................................................................................................... 1
QUESTION PRESENTED ........................................................................................ 4
STATEMENT OF FACTS ........................................................................................ 5
ARGUMENT ............................................................................................................ 6
PETITIONERS DEMONSTRATE NO BASIS FOR IMMEDIATE
REVIEW OF A PRELIMINARY SETTLEMENT APPROVAL ORDER ...... 6
A. Rule 23(f) Does Not Permit This Form of Interlocutory Appeal ......... 6
B. Petitioners Attacks on the Preliminary Class Certification Order
Are a Thinly-Disguised Attack on the Underlying Settlement ............. 9
C. Petitioners Attacks on the Settlement Are, at Any Rate, Meritless ... 13
D. Petitioners and the Amicus Procedural Attacks Are Specious ......... 17
CONCLUSION ........................................................................................................ 20

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TABLE OF AUTHORITIES

CASES PAGE(S)

Better v. YRC Worldwide Inc., No. 11-2072-KHV, 2013 WL 6060952
(D. Kan. Nov. 18, 2013) ......................................................................................... 9
Chamberlan v. Ford Motor Co., 402 F.3d 952 (9th Cir. 2005) ............................... 13
Dugan v. Towers, Perrin, Forster & Crosby, Inc., No. 2:09-CV-5099, 2013 WL
5330116 (E.D. Pa. Sept. 24, 2013) ........................................................................ 9
Gates v. Rohm & Haas Co., 248 F.R.D. 434 (E.D. Pa. 2008) ................................... 8
Gelder v. Coxcom Inc., 696 F.3d 966 (10th Cir. 2012) ........................................... 13
Heights Community Congress v. Rosenblatt Realty, Inc., 73 F.R.D.
1 (N.D. Ohio 1975) ................................................................................................ 8

In re American Investors Life Insurance Co. Annuity Marketing & Sales
Practices Litigation, 263 F.R.D. 226 (E.D. Pa. 2009) .......................................... 18
In re Community Bank of Northern Virginia, 418 F.3d 277 (3d Cir. 2005) ............. 9
In re Cordis Corp. Pacemaker Product Liability Litigation,

No. MDL 850, 1992 WL 754061 (S.D. Ohio Dec. 23, 1992) ................................ 8
In re DC Water & Sewer Authority, 561 F.3d 494 (D.C. Cir. 2009) ....................... 13
In re Diet Drugs, 282 F.3d 220 (3d Cir. 2002) ........................................................ 19
In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine)
Products Liability Litigation, 226 F.R.D. 498 (E.D. Pa. 2005) ............................ 18
In re Federal Skywalk Cases, 680 F.2d 1175 (8th Cir. 1980) .................................. 7
In re Pet Food Products Liability Litigation,
629 F.3d 333 (3d Cir. 2011) ................................................................................. 12
In re SFBC International Inc., 310 F. Appx 556 (3d Cir. 2009) ............................ 12
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Kershner v. Mazurkiewicz, 670 F.2d 440 (3d Cir. 1982) .......................................... 7

Lienhart v. Dryvit Systems, Inc., 255 F.3d 138 (4th Cir. 2001) ............................... 12
Liles v. Del Campo, 350 F.3d 742 (8th Cir. 2003) .................................................. 12
Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154
(3d Cir. 2001) ....................................................................................................... 13
Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999) ..................................... 19
Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266 (11th Cir. 2000) .................. 13
Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir. 1977) .................................. 11
Richardson v. LOreal USA, Inc., 951 F. Supp. 2d 104 (D.D.C. 2013) .................... 9
Sullivan v. DB Investments, Inc., 667 F.3d 273 (3d Cir. 2011) ................................. 2
Waste Management Holdings, Inc. v. Mowbray,
208 F.3d 288 (1st Cir. 2000) ................................................................................ 13
STATUTES AND RULES

28 U.S.C. 1291 ...................................................................................................... 11
28 U.S.C. 1292(a)(1) ............................................................................................... 7
Fed. R. Civ. P. 23 ........................................................................................ 1, 7, 8, 20
Fed. R. Civ. P. 23, 2003 advisory committee note .................................................. 8
Fed. R. Civ. P. 23(a) ................................................................................................. 11
Fed. R. Civ. P. 23(b) .............................................................................................. 11
Fed. R. Civ. P. 23(e)(2) ......................................................................................... 3, 6
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Fed. R. Civ. P. 23(f) .................................................................................... 1, 4, 6, 13

OTHER AUTHORITIES
AMERICAN LAW INSTITUTE, Principles of the Law of Aggregate Litigation
(2010) ............................................................................................................... 3, 19

PLAINTIFFS-RESPONDENTS ANSWER TO FED. R. CIV. P. 23(f)

PETITION FOR PERMISSION TO APPEAL PRELIMINARY
SETTLEMENT APPROVAL ORDER CONDITIONALLY
CERTIFYING SETTLEMENT CLASS

INTRODUCTION
Plain and simple, there is no jurisdictional basis for this interlocutory
Petition for leave to appeal. The predicate for relief under Rule 23(f) is an order
granting or denying class action certification. Fed. R. Civ. P. 23(f). There is no
such order below, only preliminary approval by a district court.
Petitioners sidestep this critical jurisdictional difference by positing that they
seek review of the district courts decision certifying a class in the course of
preliminarily approving a settlement. Petition (Pet.) at 1. Clever wording,
perhaps. But asserting it is so does not make it so. Tellingly, Petitioners cite not a
single case for the jurisdictionally-laden proposition that a preliminary approval
order certifies a class within the meaning of Rule 23(f). And for good reason.
Rule 23(f) was designed to cure a structural defect in class action cases that
prevented meaningful appellate review. The strategic realities of class litigation
meant that in many cases the decision to certify or not to certify was the dispositive
event in the case. A rule of appellate jurisdiction that required awaiting a final
judgment that would never arrive would be the legal equivalent of Waiting for
Godot. As J udge Scirica explained, the addition of subdivision (f) to Rule 23 was
designed to allow for appellate review of cases that effectively ended at the class
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certification decision either because the denial of certification may sound the
death knell of the action because the claims are too small to be prosecuted
individually, or because the grant of certification may create hydraulic pressure
to settle, even for claims defendants deem non-meritorious. Sullivan v. DB Invs.,
Inc., 667 F.3d 273, 335 n.4 (3d Cir. 2011) (en banc) (Scirica, J ., concurring).
Preliminary approval of a settlement class does not raise any of the
effective termination concerns that prompted the rule change. Neither the NFL
Defendants nor the proposed settlement class have any incentive to stop at this
stage. The Defendants cannot realize global peace, id. at 310-11, until final
approval, and the class cannot obtain any relief until it is in fact certified and the
settlement approved. The purpose of preliminary approval is only to authorize
notice to the class (notice has, in fact, already been sent to the entire class) and to
set the date of the final fairness hearing (which, as set out in the notice to the
proposed class, will occur on November 19).
1
Under the express terms of the
1
Petitioners supporting amicus curiae, Public Citizen, Inc., does not address the
issue of appealability at all, instead relying on commentary from the American
Law Institutes Principles of the Law of Aggregate Litigation for the proposition
that prompt judicial review of the proposed class notice is desirable. Amicus Br. at
2. Apart from the fact that this discussion is directed at meaningful scrutiny by the
district court, Amicus disregards the ALIs primary concern that preliminary
review is not a merits determination and does not substitute for the actual
substantive determination of the appropriateness of a class settlement: The
preliminary review is not . . . a substitute for a thorough and careful review of the
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Federal Rules, no settlement-related action by the district court can have any
conclusive effect until the final fairness hearing: If the proposal would bind class
members, the court may approve it only after a hearing and on finding that it is
fair, reasonable, and adequate. Fed. R. Civ. P. 23(e)(2).
And if it were to grant the Petition, what record could this Court possibly
review? The Petition is replete with factual assertions, including the relation
between drug exposure and strokes, the relation between the broad diagnosis of
chronic traumatic encephalopathy (CTE) and the compensable realized
symptoms under the proposed settlement, the state of the scientific record on CTE,
the relation between the compensation for injuries sustained in the NFL in the U.S.
and those sustained in the European NFL under restrictive European tort laws, and
so forth. None of these factual issues has been addressed by the district court and
the Petition cites only documents that Petitioners presented to the district court.
Will this Court step into the shoes of a court of first instance to create and
settlement at the time of the actual fairness hearing. AM. LAW INST., Principles of
the Law of Aggregate Litigation (Principles of Aggregate Litig.) 3.03(a)
(2010); see also id. 3.03(b) (After notice and an opportunity for objections (and,
when required, opt-outs), the court must conduct a full review of the settlement,
including an in-court hearing, with an opportunity for the parties and objectors to
offer evidence and present arguments. Whether the court approves or disapproves
the settlement, it must make on-the-record findings and conclusions in support of
its decision.).
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adjudicate a factual record? Will there be testimony? Will the parties be restricted
to documentary evidence?
Petitioners seek to disrupt an orderly process that will conclude in the space
of less than four months whereby the many thousands of class members, who
have already received notice of the settlement, can determine whether they wish to
participate in, object to, or opt out of that settlement and to scuttle the district
courts consideration of final approval of the settlement. Their misguided request
for premature appellate intervention will frustrate the district courts development
of a full record that would allow this Court to properly review a final approval
order, including the related certification of the settlement class and subclasses.
And, if Petitioners request is granted, it would likely unleash confusion among
class members, who have just now received notice of the proposed settlement and
are starting to weigh what is in their best interests.
Finally, Petitioners arguments are not only at bottom unripe objections to
the terms of the settlement itself, disguised as a challenge to preliminary class
certification, but also are entirely without merit. For all these reasons, the Court
should deny the Petition.
QUESTION PRESENTED
The sole question is whether Rule 23(f) permits review of a preliminary
class action settlement approval order that directs notice to be sent and sets a date
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certain for a final fairness hearing on the merits of the proposed settlement.
STATEMENT OF FACTS
On J uly 7, 2014, the district court gave preliminary approval to the
settlement and conditionally certified a settlement class and two subclasses, finding
that there are no obvious deficiencies to cast doubt on the proposed settlements
fairness; the proposed Settlement is the product of good faith, arms length
negotiations; the significant legal challenges facing Plaintiffs support
preliminary approval; the proposed Settlement does not appear to provide undue
preferential treatment to any individual class member or subclass; and the
Settlement falls within the range of possible approval. Pet., Ex. B., at 9-12.
Pursuant to that preliminary approval order, a long-form notice has been
disseminated via first-class mail to all known class members, informing them of
the settlement proceedings and their rights to opt out of the settlement class, or
participate in the settlement or object thereto. See Pet., Ex. A, at 5. Also, a
website has been set up (at www.nflconcussionsettlement.com), which provides
class members with access to the settlement agreement and related documents and
allows them to sign up online for further information on how to register for
settlement benefits if the settlement receives the district courts final approval. In
addition, an automated call center has been established, through which class
members can receive information about the settlement. Significantly, the opt-
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out/objection period began several weeks ago and will continue through October
14, 2014. Id. at 7. The district court has set forth specific procedures for opting
out of the settlement and for lodging objections, and the settling parties must file
responses to objections and papers in support of final approval of the settlement no
later than November 12, 2014. Id. J udge Brody has scheduled a formal Rule
23(e)(2) fairness hearing to take place on November 19, 2014, to determine
whether final approval of the proposed settlement is warranted and to consider
whether . . . to certify the proposed Settlement Class and Subclasses. Id. at 7-8.
ARGUMENT

PETITIONERS DEMONSTRATE NO BASIS FOR IMMEDIATE
REVIEW OF A PRELIMINARY SETTLEMENT APPROVAL ORDER

A. Rule 23(f) Does Not Permit This Form of Interlocutory Appeal
Although they discuss the criteria for interlocutory review under Rule 23(f),
see Pet. at 8, conspicuously absent from Petitioners petition and the brief of the
Amicus is citation to a single case holding that Rule 23(f) permits interlocutory
review of preliminary settlement approval orders that conditionally certify a
settlement class. All of Petitioners cases involved either appeals from final class
settlement approvals or interlocutory review of certified litigation classes. For its
part, Amicus does not even address the threshold issue of appellate jurisdiction.
The glaring lack of legal support for this unprecedented request for
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interlocutory review is no mere oversight. Granting immediate review of a

preliminary approval order would require this Court to sit as fact-finder in the first
instance, instead of allowing the district court to develop a complete record
concerning the fairness, reasonableness, and adequacy of the settlement after all
class members have received notice and had an opportunity to voice their views.
The only sliver of authority that Petitioners cite for their extraordinary
request relegated to a footnote is an advisory committee note that accompanied
the 1998 addition of subdivision (f) to Rule 23. See Pet. at 3 n.2.
2
Their reliance
on the advisory committees suggestion that 23(f) review might be of value in
cases involving tentative class certification decisions, however, is misplaced.
The tentative certification that the committee referenced in 1998 was the
2
No more availing is the claim, presented as an afterthought in the subsequent
footnote, that jurisdiction may lie under 28 U.S.C. 1292(a)(1) because the district
courts preliminary approval order temporarily enjoined class members from
prosecuting related lawsuits against the Defendants. Pet. at 3 n.3. Irrespective of
whether jurisdiction might lie from the preliminary injunction against suits going
forward pending the fairness hearing, see Kershner v. Mazurkiewicz, 670 F.2d 440,
449 (3d Cir. 1982) (en banc) ([A] pendent class certification order is not
appealable under section 1292(a)(1) unless the preliminary injunction issue cannot
properly be decided without reference to the class certification question.), there is
no allegation that any of the Petitioners are under injunction. There is not even an
allegation that any of them have filed a lawsuit in their own names or that their
claims would not be time barred but for the NFLs waiver of the statute of
limitations defense as part of the bargained-for settlement. The case that
Petitioners cite, In re Federal Skywalk Cases, 680 F.2d 1175 (8th Cir. 1980),
involved certification of a litigation class, not preliminary approval of a settlement.
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conditional certification permitted under the former version of Rule 23(c)

whereby courts could make provisional or almost hypothetical certification
determinations, often on an abbreviated record. E.g., In re Cordis Corp.
Pacemaker Prod. Liab. Litig., No. MDL 850, 1992 WL 754061, at *16 (S.D. Ohio
Dec. 23, 1992) (conditionally certifying class, subject to later decertification
following trial, where court freely admit[ted] that action pose[d] potential
management problems which may prove insurmountable); Heights Comty. Cong.
v. Rosenblatt Realty, Inc., 73 F.R.D. 1, 4 (N.D. Ohio 1975) (ascertaining
amenability of action to class treatment solely for limited purposes of hearing on
preliminary injunction application). But that form of certification was abolished
by the 2003 amendments to Rule 23 five years after the adoption of subdivision
(f). See Fed. R. Civ. P. 23, 2003 advisory committee note (Subdivision (c)(1)(C)
reflects two amendments. The provision that a class certification may be
conditional is deleted. A court that is not satisfied that the requirements of Rule
23 have been met should refuse certification until they have been met.).
The now-eliminated tentative certification should not be confused with the
more commonly-known procedure of conditional in the sense of provisional or
preliminary certification of settlement classes. E.g., Gates v. Rohm & Haas Co.,
248 F.R.D. 434, 447 (E.D. Pa. 2008) (For purposes of effectuating the proposed
Settlement, this action is conditionally certified for settlement purposes only as a
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class action.). As this Court has explained, the term conditional certification is
employed in the settlement context because the conditional nature of settlement
class certification preserves the defendants ability to contest certification should
the settlement fall apart. In re Cmty. Bank of N. Va., 418 F.3d 277, 299 (3d Cir.
2005) (citation and internal quotation marks omitted).
3

In short, Petitioners extraordinary request for unprecedented appellate
intervention in the Rule 23(e) settlement review and approval process lacks a
scintilla of legal support.
B. Petitioners Attacks on the Preliminary Class Certification Order
Are a Thinly-Disguised Attack on the Underlying Settlement

For reasons of their own devising, Petitioners seek nothing more than to
bypass the orderly processes of final class settlement approval under Rule 23(e) in
favor of an unprecedented rush to the Court of Appeals. Although Petitioners and
the Amicus dress up their objections in the portentous language of intra-class
conflicts that supposedly doom[] the class, Pet. at 2, this is nothing more than an
attack on the fairness, reasonableness, and adequacy of the settlement. These
3
A more recent trend has been for courts to employ the term preliminary, rather
than conditional, to describe their certification of settlement classes pending
consideration of final approval of a settlement. E.g., Richardson v. L'Oreal USA,
Inc., 951 F. Supp. 2d 104, 105 (D.D.C. 2013); Better v. YRC Worldwide Inc., No.
11-2072-KHV, 2013 WL 6060952, at *5 (D. Kan. Nov. 18, 2013); Dugan v.
Towers, Perrin, Forster & Crosby, Inc., No. 2:09-CV-5099, 2013 WL 5330116, at
*1-3, *5-6 (E.D. Pa. Sept. 24, 2013).
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purported conflicts relate to how much compensation the settlement allocates (or
does not allocate) to particular categories of class members and how the settlement
is administered. See id. at 10-16; Amicus Br. at 2-6. Specifically, Petitioners
allege a number of infirmities in the proposed settlement, including:
certain alleged injuries, such as living players who may have CTE,
are not compensated (even though Petitioners admit there is no pre-mortem test to
diagnose CTE, see Pet., Ex. C, at 9);
a 75% offset for stroke and Traumatic Brain Injury;
time spent playing in the now-defunct NFL Europe League is
excluded from the calculation of an Eligible Season;
the time allowed for registration of settlement benefits is too short;
the claims process is burdensome, and the details of the claim form
itself have not been disclosed;
the NFL Parties appeal rights are too broad; and
the settlement is otherwise not fair.
Pet. at 9-16.
4

4
Of course, no Petition would be fully Amchemized without an attack on class
counsel and attorneys fees. Accordingly, the Court is told that class counsel . . .
bargained away something of value to further their own interests because Class
Counsel allegedly did very little work. Pet. at 18. Petitioners, though, cannot
deny that there has been no award of attorneys fees. Putting that aside, pursuant
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This Court cannot properly evaluate these merits-based objections because

the district court has not finally approved the settlement and has not entered a final
order certifying a settlement class. There is simply no factual record, complete
with appropriate findings by the district court, for this Court to review on appeal.
All of Petitioners citations to evidence are to undigested documents and
statements in their objections to preliminary approval in the district court, see Pet.,
Ex. C (ECF No. 6082). Thus, Petitioners are asking this Court to sit as trier of fact
to evaluate the NFL Concussion Settlement, at the same time that class members
are making decisions to participate in, object to, or opt out of the settlement, and
the district court is preparing to adjudicate the merits of the settlement and
satisfaction of the requisites of Rule 23(a) and (b) through a formal fairness
hearing, where evidence will be presented by all interested parties, no doubt
including Petitioners.
Assuming that the district court grants final approval, this Court will soon
have proper jurisdiction under 28 U.S.C. 1291 to review a final approval order
issued pursuant to Rule 23(e), including the certification of the Settlement Class.
to this Courts guidance in Prandini v. National Tea Co., 557 F.2d 1015, 1021 (3d
Cir. 1977), attorneys fees were not negotiated until after the terms of
compensation for class members were resolved. Needless to add, any examination
of this issue is jurisdictionally premature until the district court has ruled on the
matter.
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E.g., In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 343-49, 354-58 (3d Cir.
2010) (affirming certification of settlement class but vacating, in part, final
approval of settlement and remanding for further proceedings with respect to one
component); In re SFBC Intl Inc., 310 F. Appx 556, 557-58 (3d Cir. 2009)
(acknowledging section 1291 jurisdiction and reviewing final approval of class
settlement).
In Liles v. Del Campo, 350 F.3d 742 (8th Cir. 2003), the Eighth Circuit
rejected an analogous 23(f) petition and held that interlocutory appeal of a
preliminary settlement approval order would be premature inasmuch as several
steps remained before the district court could finally certify the class and approve
the settlement. That court had no trouble concluding that
an interlocutory appeal would be premature in this case. Several steps
remain before the district court finally approves class certification and
any settlement. To permit an appeal at this stage would unnecessarily
delay the resolution of the litigation and further jeopardize the limited
assets available for resolving the claims. Permission for an
interlocutory appeal of the conditional class certification should
therefore be denied.

Id. at 746. The same considerations apply here.
5
As this Court has noted, if
5
Rather than cite the Eighth Circuits Liles decision, which is right on point,
Petitioners instead twice invoke Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 144
(4th Cir. 2001) (cited in Pet. at 2, 8), which involves the standard for 23(f) appeal
from the full certification of a litigation class. Dicta from Lienhart, taken
completely out of context, are inapposite here.
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allowing the litigation to follow its natural course would provide the moving party
with an adequate remedy, interlocutory review will generally prove unnecessary.
Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 164-65 (3d
Cir. 2001).
C. Petitioners Attacks on the Settlement Are, at Any Rate, Meritless
Even were this 23(f) Petition not jurisdictionally infirm, this is not an
exceptional situation warranting a departure from the precept expressed by several
circuit courts considering 23(f) petitions that [i]nterlocutory appeals are generally
disfavored because they are disruptive, time-consuming, and expensive.
Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005) (citation and
internal quotation marks omitted); accord Gelder v. Coxcom Inc., 696 F.3d 966,
969 (10th Cir. 2012); In re DC Water & Sewer Auth., 561 F.3d 494, 497 (D.C. Cir.
2009); Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1276 (11th Cir. 2000);
Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 294 (1st Cir. 2000).
Therefore, even putting to one side the Petitions pronounced jurisdictional
flaw, even the customary application of Rule 23(f) should warrant denial of
review. Respondents will limit themselves to just a few examples because this is
neither the time nor the place to develop a full factual record.
First, Petitioners claim that CTE must be the diagnosis that is compensated,
and that the settlement errs in compensating deceased class members for confirmed
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CTE diagnoses but not doing so for the living class members. This is wrong on
many levels, both practical and in terms of the nature of a settlement that seeks to
compensate manifested impairments of life rather than an underlying medical
diagnosis. Thus, even Petitioners admit there is no accepted test to diagnose CTE
in a living person. See Pet., Ex. C, at 9; see also Pet. at 11. CTE is a pathological
diagnosis of the underlying alteration in the brain that, as yet, can be determined
conclusively only through examination of brain tissue following death.
More fundamentally, Petitioners simply misperceive the settlement. The
settlement provides monetary awards to injured class members for specified
cognitive or neuromuscular injuries. It does not compensate retired players for
exposure to NFL football, or exposure to head impacts while playing (reflective of
the legal requisite of manifest injury). Likewise, it does not compensate players
for the underlying causal disease that cannot be diagnosed while living. Rather,
living and retired players receive monetary awards for specified and demonstrated
neurocognitive or neuromuscular deficits and diseases. For those retired players
who have already died, and who did not carry a diagnosis of a compensable disease
or condition while living, a post-mortem autopsy diagnosis of CTE serves as
sufficient evidence of harm for purposes of establishing compensation.
6

6
Notably, while criticizing the proposed settlement for failing to compensate living
retired players for well-documented symptoms consistent with CTE, Pet. at 11,
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More broadly and specifically relevant to Petitioners contention that those

without a qualifying injury or condition receive nothing under the settlement (Pet.
at 1, 10-11) the proposed settlement provides medical assessments to every
retired NFL player regardless of his diagnosis or symptomology (in addition to the
medical benefits to players with specified deficits). Pet., Ex. D, at 20-31 (Baseline
Assessment Program). These immediate benefits are both material and legal. All
players receive a baseline medical assessment and monitoring for manifestations of
disease progression, in addition to medical treatment for certain manifestations.
And all players receive immediate legal benefits, including waiver of legal
defenses based on labor preemption or statutes of limitations. Similarly, the
proposed settlement voids limitations in the collective bargaining agreements
(CBA) for players participating in the settlement who wish to both avail
themselves of CBA benefit programs and the substantial relief afforded tort claims
Petitioners ignore the settlements injury definitions and framework that provide
relief for the very ailments and deficits that Petitioners assert are symptoms of CTE
from which they suffer. Compare Pet. at 7, 11 (asserting that settlement provides
no compensation for conditions suffered by petitioners, which include attention
and concentration deficit, executive function deficit, memory deficit, and
visuospatial difficulties) with id., Ex. D (Settlement Agreement, Ex. B-1) at 3
(Injury Definitions) (setting forth criteria for Level 2 Neurocognitive Injury, with
maximum monetary award of $3 million, by reference to very deficits Petitioners
claim are unaddressed: Evidence of a severe cognitive decline . . . in two or more
cognitive domains (complex attention, executive function, learning and memory,
language, perceptual-spatial), provided one of the cognitive domains is (a)
executive function, (b) learning and memory, or (c) complex attention.).
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in the settlement. Id., Ex. D, at 91 (Art. XXIX), 72 ( 18.1(a)(viii)). Though the

ultimate value of these non-monetary award benefits (provided to all retired
players) has yet to be determined by the district court, at the final fairness hearing
it will be shown to exceed several hundred million dollars a question of fact that
has yet to be fully submitted to the district court, let alone resolved by it.
Petitioners similarly contest the 75% offset in compensation for a non-
football related stroke that occurs prior to a Qualifying Diagnosis of injury under
the settlement. They suggest that this offset is grossly unfair and devoid of
scientific justification in light of the fact that the NFL Defendants own
conduct in administering Toradol increased some Petitioners risk of stroke. Pet.
at 10 & 14. Whether Toradol increases the risk of stroke after a players use while
in the NFL (i.e., long after the use of Toradol), whether the offset would apply in
instances where a class member can demonstrate that the Qualifying Diagnosis is
unrelated to the stroke (id., Ex. D, at 27 ( 6.7(d)), and whether there is scientific
or other justification for the offset are all questions of fact that no court has finally
passed on. This Court is not in a position to rule on this objection based on the
current absence of a record.
As another example, Petitioners argue that the time spent playing football
for now-defunct NFL Europe should be credited towards the calculation of an
Eligible Season at the same level as play in the NFL, for purposes of determining
-17-
compensation. Pet. at 15-16. But this is yet another factual issue that no court has
passed on. Again, this would mean that this Court would have to act as finder of
fact in order to rule on the appeal.
Finally, Petitioners argue that neither proposed class representative has an
interest in securing compensation for all cases of CTE. Pet. at 13. That,
however, ignores the allegations in Plaintiffs Class Complaint showing quite the
contrary. See Turner v. NFL, No. 2:12-cv-00029 (E.D. Pa. filed J an. 6, 2014)
(ECF No. 1), at 4 (Subclass 1 Representative Shawn Wooden has experienced
repeated traumatic head impacts. After his retirement from football he has
experienced neurological symptoms. Mr. Wooden has not been diagnosed with
any neurocognitive impairment, but is at increased risk of developing dementia,
Alzheimers, Parkinsons, or ALS.). These allegations have not been
controverted, and there is no evidence in the record to suggest that Plaintiff
Wooden is not a proper representative for retired NFL football players whose
injuries have not progressed to the point of a Qualifying Diagnosis prior to the date
of the preliminary approval.
D. Petitioners and the Amicus Procedural Attacks Are Specious
Equally unavailing is Petitioners and the Amicus disparagement of the
substance of the notice sent to class members. See Pet. at 17; Amicus Br. at 9-10.
Petitioners contend that the notice, which, they admit, is already being
-18-
distributed, Pet. at 17, is false and misleading with respect to the benefits
provided for death with CTE, even though the notice clearly states that there will
be compensation under the settlement for death with CTE prior to J uly 7, 2014.
See Pet., Ex. A, at 6-8; see also www.nflconcussionsettlement.com (Section 5).
Like Petitioners other contentions, that challenge is premature and not the
proper subject of a 23(f) petition. The sufficiency of notice of a proposed
settlement disseminated to members of a class is a matter that is to be addressed by
a district court in connection with its consideration of final approval. E.g., In re
Am. Investors Life Ins. Co. Annuity Mktg. & Sales Practices Litig., 263 F.R.D. 226,
237 (E.D. Pa. 2009) (addressing objections to content of class notice); In re Diet
Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig., 226
F.R.D. 498, 517-21 (E.D. Pa. 2005) (detailed discussion of sufficiency of class
notice and notice plan). Neither Petitioners nor the Amicus cite a single case in
which a circuit court insinuated itself in the middle of the Rule 23(e) process and
required a district court to redo class notice after preliminary approval. Indeed,
with notice now having been disseminated to the class, Petitioners misguided
effort to have this Court order the district court to reissue notice would only sow
immeasurable confusion among class members.
Amicus contentions that separate subclasses (and representation) are
warranted for each category of class members whose injuries are to be
-19-
compensated differently under the settlement fares no better. See Amicus Br. at 6.
The same ALI publication it relies upon has also noted that [i]ncreasingly courts
have become attentive to the reality of tradeoffs in compensation between different
subsections of the class or other structural conflicts in weighing the propriety of
subclass treatment, and that there are frequently significant costs associated with
creating large numbers of subclasses, including the administrative cost of more
lawyers and the difficulties of negotiating in the presence of a large number of
separately represented parties. Principles of Aggregate Litig. 3.10, Reporters
Notes, cmt. c (citing Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1146-48 (8th Cir.
1999) (rejecting need for creation of subclasses despite large differences in
recovery among class members)).
Finally, Amicus contends that the district court has wrongly required those
who wish to opt out of the class to individually sign their opt-outs, even if they
have counsel. Amicus Br. at 7-8. That, too, is unavailing. It is well within a
district courts discretion to prevent attorney-driven tactics by barring counsel from
filing en masse opt-outs. See In re Diet Drugs, 282 F.3d 220, 241 (3d Cir. 2002).
* * *
Plaintiffs cannot possibly present their entire support for, and defense of, the
NFL Concussion Settlement in the posture of an interlocutory 23(f) appeal. To do
so would deprive the district court of its role and proper function, and further deny
-20-
this Court the attendant record-development and evidentiary fact-finding that are
necessary and appropriate to its review. It is almost certainly for this reason that
Petitioners have not cited to any decision granting review of a preliminary order
approving a class settlement. Granting review at this juncture would unnecessarily
add years to this litigation and delay compensation for class members so
desperately in need of relief.
If Petitioners are sincere concerning their objections to the settlement, the
procedural and substantive due process afforded them by the district court pursuant
to Rule 23 will enable them to file formal objections to the settlement or to opt out
of the settlement class and preserve their right to litigate their claims. There is no
way to know at this point what any final order respecting the settlement or
certification of a settlement class might say.
CONCLUSION
For the foregoing reasons, the Court should deny the Petition.
Dated: J uly 29, 2014

Respectfully submitted,

/s/ Christopher A. Seeger
Christopher A. Seeger (NY 2425304)
David R. Buchanan
Diogenes P. Kekatos
SEEGER WEISS LLP
77 Water Street
New York, NY 10005
(212) 584-0700 (telephone)
(212) 584-0799 (facsimile)
Sol Weiss
ANAPOL SCHWARTZ
1710 Spruce Street
Philadelphia, PA 19103
(215) 735-1130 (telephone)
(215) 735-2024 (facsimile)
sweiss@anapolschwartz.com
cseeger@seegerweiss.com
dbuchanan@seegerweiss.com
dkekatos@seegerweiss.com

Co-Lead Class Counsel

Samuel Issacharoff
40 Washington Square South, 411J
New York, NY 10012
(212) 998-6580 (telephone)
si13@nyu.edu

On the Brief

Steven C. Marks
PODHURST ORSECK P.A.
City National Bank Building
25 W. Flagler Street, Suite 800
Miami, FL 33130-1780
(305) 358-2800 (telephone)
(305) 358-2382 (facsimile)
smarks@podhurst.com
Gene Locks
LOCKS LAW FIRM
The Curtis Center
Suite 720 East
601 Walnut Street
(866) 562-5752 (telephone)
(215) 893-3444 (facsimile)
glocks@lockslaw.com
Class Counsel

Arnold Levin
LEVIN FISHBEIN SEDRAN &
BERMAN
510 Walnut Street, Suite 500
(215) 592-1500 (telephone)
(215) 592-4663 (facsimile)
alevin@lfsblaw.com
Dianne M. Nast
NAST LAW LLC
1101 Market Street, Suite 2801
(215) 923-9300 (telephone)
(215) 923-9302 (facsimile)
DNast@nastlaw.com

CERTIFICATE OF SERVICE

I, Christopher A. Seeger, hereby certify that on the 29th day of J uly 2014, I
electronically transmitted a true and correct copy of the foregoing document,
PLAINTIFFS-RESPONDENTS ANSWER TO FED. R. CIV. P. 23(f) PETITION FOR
PERMISSION TO APPEAL PRELIMINARY SETTLEMENT APPROVAL ORDER
CONDITIONALLY CERTIFYING SETTLEMENT CLASS, to the Clerk of the Court using
the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to
all attorneys of record who are ECF registrants.

/s/ Christopher A. Seeger
Christopher A. Seeger

3rd Circuit Appeal - Plaintiffs Response

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3rd Circuit Appeal - Plaintiffs Response

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United States Court of Appeals

In re Cordis Corp. Pacemaker Product Liability Litigation,

Kershner v. Mazurkiewicz, 670 F.2d 440 (3d Cir. 1982) .......................................... 7

STATUTES AND RULES

Fed. R. Civ. P. 23(f) .................................................................................... 1, 4, 6, 13

PLAINTIFFS-RESPONDENTS ANSWER TO FED. R. CIV. P. 23(f)

interlocutory review is no mere oversight. Granting immediate review of a

conditional certification permitted under the former version of Rule 23(c)

This Court cannot properly evaluate these merits-based objections because

More broadly and specifically relevant to Petitioners contention that those

in the settlement. Id., Ex. D, at 91 (Art. XXIX), 72 ( 18.1(a)(viii)). Though the

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