About the revised proposed NFL concussion litigation settlement

I blogged earlier about problems facing the NFL concussion litigation proposed settlement agreement. A new proposed settlement agreement has been released. (The PDF of the agreement is here.) It cures a few of the issues earlier identified.

For instance, the new agreement eliminates the requirement that parties agree not to sue the NCAA or other football institutions for concussion-related injuries. Earlier I explained that this would help protect the NFL if future litigants tried to bring in the NFL--if future defendants alleged that the NFL was responsible for a portions of the injuries claimed to be attributable to other defendants. Instead, the NFL proposes a bar order that would prohibit future defendants from impleading the NFL for concussion-related claims--a serious limitation on third parties not present in this litigation, but one that protects the NFL interests in a similar way without directly implicating the proposed class plaintiffs. Whether that survives review is another matter.

Additionally, the NFL has agreed to ensure that the money will not run out. It has assured that it will continue to fund the awards for the next 65 years in the event the fund is depleted. (The maximum amounts any single player could receive remains the same.)

Will this please everyone? Hardly. As I noted earlier, some individual litigants may be willing to stake out on their own and try to prove a point with the league, through discovery and through attempts to seek out more money; some lawyers may want to keep a piece of the litigation for themselves rather than ceding it out to class counsel; and so on. But it certainly helps cure some of the problems from the earlier proposed settlement.

BREAKING: Federal appeals court weighs in on same-sex marriage

The Eighth Circuit has concluded that Nebraska's same-sex marriage amendment should be subject to rational basis review and that the state's refusal to recognize same-sex marriages does not violate the Equal Protection Clause.

It decided this in 2006 (PDF).

One could be forgiven for not knowing that this case, Citizens for Equal Protection v. Bruning, exists. Much commentary today evaluates the "race" to be the first court of appeals to address the issue, as circuits like the Fourth and Tenth have heard oral argument and consider similar cases. Some pundits have wondered aloud whether federal courts would simply be unanimous in their holdings on marriage amendments and that the Supreme Court might never need to weigh in. Indeed, not a single federal case decided since United States v. Windsor (PDF) and Hollingsworth v. Perry (PDF) has cited the existing law in the Eighth Circuit. (The court also concluded that the law was not a bill of attainder and that the law did not violate the First Amendment.)

The Ninth Circuit distinguished Bruning in Perry v. Brown, concluding that California's same-sex marriage amendment left intact other laws concerning same-sex couples' family formation and childrearing, unlike Nebraska's; and that Nebraska's law did not revoke an existing benefit, unlike California's. (The Supreme Court later vacated Perry in Hollingsworth.) And a dissenting judge in the Second Circuit discussed Bruning in the Windsor opinion.

(A few other courts have cited the opinion for some of its other discussion, including its Eleventh Amendment analysis.)

It might be the case that this Eighth Circuit case has not garnered the attention of any of the federal courts addressing same-sex marriage litigation because it has been a different circuit, and its opinion serves only as persuasive (instead of mandatory) authority. But the lower courts certainly are in tune with how other district courts have handled same-sex marriage litigation, regularly citing other federal district courts, and it would seem that a federal appellate court weighing in on the issue with a non-vacated opinion might be the kind of law one would similarly expect to be cited, even if to be distinguished.

Or, it might be that because the Eighth Circuit did not address an Due Process Clause claim, only an Equal Protection Clause claim, its relevance is less. But many federal district courts addressing same-sex marriage also address Equal Protection Clause claims--particularly given the uncertainty about which clause or clauses of the Constitution the Supreme Court relied on in its opinion in Windsor. And it still addresses the government's rational basis arguments, which may be relevant for a Due Process Clause claim.

Or, it might be the case that things have changed significantly in eight years, either due to political factors or due to the Supreme Court's opinions in cases like Windsor. But one would expect that at least some district courts might cite the opinion, then distinguish it by pointing to changed circumstances. (This has been the typical route for courts explaining why the Supreme Court's decision in Baker v. Nelson (1972) is not applicable.)

So, will any federal district court cite Bruning? Any appellate court? Even merely to distinguish it?

Or, perhaps, is the Eighth Circuit case the exact set-up for a circuit split that might force the Supreme Court to address the issue in future litigation, depending on how other appellate courts handle the matter?

Only time will tell.

I admit, perhaps it's a bit deceptive to say that it's "BREAKING" news. But, confession time: was the Eighth Circuit's eight-year-old case law news to you?

Cy pres awards funding legal education

As a putative member of the class action concerning TicketMaster litigation, I read the latest iteration of the proposed settlement that arrived in my inbox today with interest--in part because I knew this wasn't the first time settlement had been proposed. But atop the proposed maximum $386 million in coupons for future purchases at TicketMaster (with a likelihood that perhaps one-tenth of them would ever be used), one item caught my attention (PDF):

Ticketmaster will pay $3 million to the University of California, Irvine School of Law to be used for the benefit of consumers like yourself. In addition to the benefits set forth above, Ticketmaster will also make a $3 million cy pres cash payment to the University of California, Irvine School of Law’s Consumer Law Clinic. The money will establish the Consumer Law Clinic as a permanent clinic, and it will be used to: (i) provide direct legal representations for clients with consumer law claims, (ii) advocate for consumers through policy work, and (iii) provide free educational tools (including online tutorials) to help consumers understand their rights, responsibilities, and remedies for online purchases.

Cy pres awards to law schools are certainly nothing new. Consider the following (proposed or actual) cy pres award recipients:

Stanford Law School's Center on Internet and Society

University of Washington School of Law's Shidler Center for Law, Commerce & Technology; University of California, Berkeley School of Law's Samuelson Law, Technology & Public Policy Clinic; and UW School of Law's Technology Law and Public Policy Clinic

Temple Law School

Harvard Law School’s Berkman Center for Internet and Society

Loyola University Chicago’s Institute for Consumer Antitrust Studies

University of San Diego Legal Clinics; California Western School of Law; & Thomas Jefferson School of Law

Berkeley Center for Law & Technology; The Berkman Center for Internet and Society at Harvard University; Center for Law + Innovation, University of Maine School of Law; High Tech Law Institute of Santa Clara University School of Law; New York University’s Information Law Institute; Privacy & Technology Project, University of California Hastings College of the Law; Samuelson Law, Technology & Public Policy Clinic, University of California, Berkeley School of Law; Stanford Law School Center for Internet and Society; University of Southern California Gould School of Law

Colorado Law’s Clinical Education Program

University of Maryland School of Law's Consumer Protection Clinic

California Western School of Law Interdisciplinary Studies, Health Law

George Washington University Law School

Branstetter Litigation & Dispute Resolution Program, Vanderbilt Law School

University of Memphis’ Cecil C. Humphreys School of Law

Sometimes, alumni of the law school involved in the settlement are responsible for channeling the money toward their alma mater. Sometimes, the law school thanks the law firm or the attorneys involved, occasionally naming the program after the settling attorneys. Some law schools even have dedicated development web sites that encourage cy pres awards to be earmarked for the law school.

In case law schools are suffering financially and seeking alternative sources of revenue, there's still one place where they can seek income, without resorting to tuition increases--class action settlements.

Original complaints: Tonya Harding v. United States Olympic Committee

There are moments in history that include litigation. I thought I would occasionally track down the original complaints in such litigation--complaints that otherwise might not be electronically available--and post about the disputes. This is the first post in that series.

On January 6, 1994, shortly before the United States Figure Skating Championships, an assailant attacked Nancy Kerrigan at Cobo Arena in Detroit, Michigan. Ms. Kerrigan was unable to compete in the competition, in which the top two finishers would compete at the Winter Olympics in 1994 in Lillehammer. Tonya Harding, another skater, qualified at the Championships for the Olympics. She was implicated when evidence identified her ex-husband and his co-conspirators in the attack. Ms. Harding denied any involvement.

On January 27, 1994, the United States Figure Skating Association ("USFSA") appointed a panel to investigate her alleged involvement. On February 5, it charged her with violating USFSA rules and gave her 30 days to respond; after that, there would be a hearing.

For the United States Olympic Committee ("USOC"), however, that process was not sufficient. USOC wanted a faster hearing with the possibility that Ms. Harding could be removed from the Olympic team. On February 7, USOC asked Ms. Harding to appear on February 15, 1994, in Oslo, Norway, to show cause why she should not be removed from the Olympic team.

Faced with the prospect of removal, Ms. Harding filed a complaint against USOC on February 9, 1994, in circuit court in Clackamas, Oregon. The complaint has three claims for relief: breach of contract, contractual due process, and tortious interference. The basic thrust of the claims was that USFSA had the bulk of disciplinary authority in the first instance and that USOC could not interfere with its own investigation--particularly an investigation about events that occurred before Ms. Harding was named to the Olympic team.

Ms. Harding sought injunctive relief, damages, and $20 million in punitive damages.

The case is Tonya Harding  v. United States Olympic Committee (94-2151). The parties ultimately settled.

The attorneys who filed the complaint were Dennis P. Rawlinson, Brian T. Burton, and Don H. Marmaduke.

Documents

Complaint

Exhibit: USFSA Statement of Charges - Disciplinary Hearing

Exhibit: USOC Notice of Hearing

Federal judicial conference subcommittee calls academic proposal "troubling"

Following up on the quotation from Justice Alito calling law professors part of an "arrogant legal culture," here's a report from the subcommittee on Advisory Committee on Civil Rules, which has proposed some amendments to the Federal Rules of Civil Procedure, including abrogating Rule 84, a series of forms.

It was noted that most of those who oppose abrogation of Rule 84 are academics. It is troubling that so many of those who devote their professional work to thinking about the deep principles of procedure challenge the proposal. That many of the challenges tie directly to continuing dissatisfaction with the Supreme Court's recent pleading decisions does not fully alleviate these concerns.

See the PDF at pp. 557-58.

The trouble with the NFL concussion litigation settlement

I've written a little and spoken a little about the NFL concussion litigation. As someone who teaches civil procedure and complex litigation, I find the case fascinating. But there's an aspect to the proposed settlement that seems to have been lost: calculating value and assessing risk.

Settlements often arise as a mechanism not simply to avoid the costs of litigation, but also to minimize risk. And in this case, there was plenty of risk.

On the players' side, there was a real risk that many post-1994 players would have their claims dismissed outright. For those who played prior to 1994, there was the difficulty of establishing fraud on the part of the NFL, and attributing causation of injuries to the NFL as opposed to other football-related or other activity.

On the league's side, there was the risk of some claims surviving the motion to dismiss and making it to discovery, which not only exerts pressure on the defendants as the case moves closer to trial and a decision on the merits, but also risks exposing the league to embarrassing disclosures during the litigation. Further, the original actions were not filed as a class action, but mostly as individual actions--which meant that the litigation costs to the league would be extraordinarily high as it would have to litigate hundreds, perhaps thousands, of individual cases (even if pretrial proceedings were consolidated). Even if some of the cases were dismissed, there would be the risk of reinstatement of the claims on appeal.

Of course, both sides had high expected litigation costs. But money today is worth more than money tomorrow, and faster settlements help maximize value for the parties. Inherent uncertainty of litigation and juries fuel parties to find compromise.

Compromise they did, ostensibly. But several months elapsed from the announcement settlement in August to the final codification of the deal a few months ago.

The goal was to resolve the claims on a global basis through a settlement class action. The parties would agree that all former NFL players would be a part of the class, and the settlement would apply to anyone who had not opted out. The proposed sum of cash was around $765 million, parceled out in a few different ways and based on a few different metrics. While the class would include all former NFL players, individuals could "opt out" of the proposed settlement and pursue individualized litigation against the league.

A substantial number of players (and their attorneys) objected to the settlement and threatened to opt out if it went through. They complained that the total sum was too low to adequately compensate all the players under the proposed terms of the deal. The presiding judge, Anita B. Brody, agreed and declined to certify the settlement.

Admittedly, the cash total was relatively low, given the multi-billion dollar industry of the NFL. But the value of the players' litigation was relatively low, given the risk of dismissal of the bulk of the claims and the difficulty in proving the rest. But was the settlement unfair?

The objectors got what they wanted: a settlement undone and the opportunity to craft a new one (while still reserving the right to opt out later). But there's the risk of the old gypsy curse: "May you get what you want." Here are a few problems. (The original proposed settlement is available as a PDF here.)

• The risk that many players will have their claims dismissed--and receive no settlement. Suppose that, instead of reaching a new settlement, the parties attempt to move forward and litigate the mass action--or attempt to certify the entire class of former NFL players. There's a very real risk that the post-1994 players would have their claims dismissed outright. That means their litigation is worth $0--which is considerably less than the bargained-for settlement. Now, the pre-1994 players may have the stronger claims, and may get more money at the end of the day. (Indeed, it's probably not a coincidence that an attorney representing Dave Duerson, who retired in 1993, reportedly loudly opposed the proposed settlement.) It's the lack of commonality between pre-1994 and post-1994 players--and perhaps other cohorts--that may result in wildly different treatment of players, and to the severe detriment of many. (It's also, perhaps, one reason that a settlement should not be approved--if the interests of the class are too divergent, it's usually inappropriate to settle all of the claims in a single class.)
• The different economics for different attorneys. Which is more valuable: a lot of guaranteed money, right now, for an entire group of clients? Or a possibility of more money, over the next several years, for clients that come through the door one at a time? It all depends not just on your risk tolerance, but also on your position. The lead committee in the litigation would have received over $100 million in fees, while other attorneys would have received substantially less (or nothing). Unsurprisingly, attorneys within the lead committee would be inclined to support the settlement; attorneys on the outside would take their chances with piecemeal, individualized litigation that would ensure individualized attorney payments in subsequent successful cases or settlements.
• The curious blow-up provision. Most settlements have a "blow-up provision." That is, if a certain number of plaintiffs opt out of the settlement, the deal falls through. The attorneys usually have a good idea about how many they need to remain inside the settlement class in order for a settlement to be "worth it" to the plaintiffs. Here, the settlement includes no such term, except for a unilateral power left to the NFL in Section 16.1: "the NFL Parties will have the absolute and unconditional right, in their sole good faith discretion, to unilaterally terminate and render null and void this Class Action Settlement and Settlement Agreement for any reason whatsoever following notice of Opt Outs and prior to the Fairness Hearing."

The settlement also includes an important provision not so easily reducible to a bullet point. Section 18.5 includes a provision that settlement class members will "dismiss pending, and/or forebear from bringing, litigation relating to cognitive injuries against the National Collegiate Athletic Association and/or other collegiate, amateur or youth football organizations and entities."

In cases like these, the injuries could be attributable to more than one defendant. An NFL player suffering from cognitive injuries may blame his Pop Warner league, and his high school league, and the NCAA, and the NFL all for a portion of his brain damage. Settling with the NFL would only solve one part of that puzzle; he could still sue the others. But if he does sue the others, they could also implead the NFL and say that the NFL is actually liable for a portion of the damage. It's no defense for the NFL to say that it's settled with the player. That's because they're drawn in by the NCAA or some other defendant, not the player.

Yes, the NFL could, at the end of the day, explain that they paid out a sum of money to the players. But a jury may conclude that the damages are much greater than the NFL paid out in settlement, and that the NFL's proportional liability is such that it would still need to pay more. And, of course, it would implicate the NFL in still another round of litigation, something it wants to avoid.

That's another reason that the total settlement value means a lot in this case. In order for the NFL to get away free and clear, they need to ensure that all other similar litigation goes away. But that means that they'll need to compensate players an even higher amount--after all, getting them to promise not to sue anyone else is pretty valuable.

Originally, a global settlement was proposed around the time the season began. But the parties dragged their feet in presenting the actual text of a proposed settlement to the judge. And the judge denied preliminary approval of the settlement. Again, the district court judge has reflected that they're still working on a deal.

Originally, I found it curious that the judge would be so careful to scrutinize a settlement when she indicated she was likely going to dismiss the majority of the claims anyway. That suggested the value of the litigation wasn't necessarily very high. But the more provisions one reads about the settlement agreement, the more one can understand why there is a great deal at stake for any potential member of the settlement--and why extra scrutiny is particularly appropriate.

Colorado files petition for rehearing en banc in Guarantee Clause case

I've blogged about the Tenth Circuit's decision on Kerr v. Hickenlooper, which extended legislative standing and found the Guarantee Clause justiciable for legislators challenging an initiative that requires tax increases to be approved by the voters before taking effect. (I wrote a piece for Jurist on the matter here.) The Governor has petitioned the Tenth Circuit for rehearing en banc; the petition is available at Scribd here.

DOJ says if there were an abortion mandate, corporations couldn't object

During today's oral argument in Sebelius v. Hobby Lobby, Solicitor General Donald Verrilli conceded that under the Department of Justice's interpretation of the Religious Freedom Restoration Act, a hypothetical "abortion mandate" could apply to all for-profit corporations (and non-profit non-religious corporations), without any ability to object. (In this case, abortion is not covered, but contraceptives are covered. The plaintiffs in this case were challenging the contraceptives that thin the uterine lining and make it more difficult for a fertilized egg to implant, which they believe terminates a human life.)

JUSTICE KENNEDY: Under your view, a profit corporation could be forced--in principle, there are some statutes on the books now which would prevent it, but--could be forced in principle to pay for abortions.

GENERAL VERRILLI: No. I think, as you said, the law now--the law now is to the contrary.

JUSTICE KENNEDY: Bur your reasoning would permit that.

GENERAL VERRILLI: Well, I think that--you know, I don't think that that's--I think it would depend on the law and it would depend on the entity. It certainly wouldn't be true, I think, for religious nonprofits. It certainly wouldn't be true for a church.

JUSTICE KENNEDY: I'm talking about a profit corporation. You say profit corporations just don't have any standing to vindicate the religious rights of their shareholders and owners.

GENERAL VERRILLI: Well, I think that if it were for a for-profit corporation and if such a law like that were enacted, then you're right, under our theory that the for-profit corporation wouldn't have an ability to sue. But there is no law like that on the books. In fact, the law is the opposite.

CHIEF JUSTICE ROBERTS: I'm sorry, I lost track of that. There is no law on the books that does what?

GENERAL VERRILLI: That makes a requirement of the kind that Justice Kennedy hypothesized. The law is the opposite.

CHIEF JUSTICE ROBERTS: Well, flesh it out a little more. What--there is no law on the books that does what?

GENERAL VERRILLI: That requires for-profit corporations to provide abortions.

JUSTICE KENNEDY: What if a law like that--

CHIEF JUSTICE ROBERTS: Isn't that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that's what we had before us.

GENERAL VERRILLI: It is their sincere belief and we don't question that. But I will say, and I do think this is important and I say it with all respect, that that is how they--that is the judgment that they make. It is not the judgment that Federal law or State law reflects. Federal law and State law which does--which do preclude funding for abortions don't consider these particular forms of contraception to abortion.

Measure B before the Ninth Circuit today, without Los Angeles County

I blogged earlier about Vivid Entertainment v. Fielding, the challenge to Measure B enacted by initiative in 2012 that required performers in pornographic films to wear condoms. Los Angeles County abdicated any defense of the law; it instead urged proponents of the initiative to intervene, which they did. The case proceeded essentially wholly on the basis of evidence presented by the intervenors. The district court upheld portions of Measure B.

Plaintiffs then appealed the case to the Ninth Circuit, which will hear oral arguments this morning (likely available for streaming here).

But nowhere to be found is Los Angeles County. The case goes on without them as intervenors continue the appeal.

It's one thing to note that a series of laws and amendments regarding same-sex marriage, with views of opponents of such laws ranging from "irrational" to "on the wrong side of history," have lost support from elected officials in judicial proceedings. But the virus of abdicating the defense of citizen-sponsored initiatives has infected this proceeding, too.

How many other initiatives--a gun control bill, a campaign finance bill, a death penalty bill--might succumb to executive abdication? Time can only tell. Until then, Measure B litigation soldiers on, without the litigation resources of the county officials sworn to uphold the law.