Brain Injury Association of America Files Response in NFL Motion BIAA continues efforts to aid court in assessing fairness of proposed settlement

Transcription

1 Brain Injury Association of America Files Response in NFL Motion BIAA continues efforts to aid court in assessing fairness of proposed settlement January 10, 2014 Contact Rob Traister, Director of Communications Brain Injury Association of America (703) VIENNA, VA The Brain Injury Association of America (BIAA) filed a response to the plaintiffs opposition to BIAA participating as amicus curiae (friend of the court) on the proposed settlement between the National Football League (NFL) and former players now before the United States District Court for the Eastern District of Pennsylvania. BIAA filed the original motion on December 17, On December 31, 2013, attorneys representing the players filed an opposition to the motion, arguing that it was premature because the settlement terms were not yet public and that the court had already appointed a Special Master in the case to assist in evaluating the financial aspects of the proposed settlement due to the financial complexities involved. In the response, BIAA noted that the terms of the settlement were made public on January 6, 2014, making the prematurity argument inapplicable. BIAA also noted that while the Special Master is well equipped to assist the court with assessing the complex financial arrangements in the settlement, BIAA s deep understanding of the disease-causative and disease-accelerative nature of brain injury, as well as the episodic and long-term treatment and support needs of patients and family caregivers, will aid the court in evaluating questions of neuroscience and public health as they relate to the injury compensation and education funds. BIAA also submitted curricula vitae of board members Brent Masel, M.D. (National Medical Director), Gregory O Shanick, M.D. (National Medical Director Emeritus), and Mark Ashley, Sc.D. (Chairman Emeritus), brain injury experts who will participate in the review of the proposed settlement and in the drafting of BIAA s amicus curiae brief if the court grants the motion. As the recognized voice of brain injury in the United States, BIAA wants to help the court assess the fairness of the settlement to make certain that players are sufficiently covered, that the compensation is adequate to meet their medical needs, that the standard of care being applied is appropriate, and that no one is being excluded because either side lacks medical expertise regarding the level of care necessary for treatment, said Daniel Chamberlain, Chairman of the Board of Directors of BIAA. We also have an interest in ensuring that adequate funding and planning is designated for research and education under the terms of the settlement, he added. Copies of documents relating to the motion can be found at http// ### The Brain Injury Association of America (BIAA) is the country s oldest and largest nationwide brain injury advocacy organization. Our mission is to advance brain injury prevention, research, treatment, and education, and to improve the quality of life for all individuals impacted by brain injury. Through advocacy, we bring help, hope, and healing to millions of individuals living with brain injury, their families and the professionals who serve them.

2 Case 212-md AB Document 5608 Filed 12/17/13 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE NATIONAL FOOTBALL No. 212-md AB PLAYERS CONCUSSION INJURY LITIGATION MDL No THIS DOCUMENT RELATES TO All Actions BRAIN INJURY ASSOCIATION OF AMERICA S MOTION TO BE DESIGNATED AMICUS CURIAE WITH THE RIGHT TO REVIEW THE PROPOSED SETTLEMENT AND RELEVANT DOCUMENTS, AND FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF The Brain Injury Association of America ( BIAA ) respectfully moves to be designated amicus curiae in the above-captioned action, to be permitted to review the proposed settlement agreement and relevant documents, and for leave to file an amicus curiae brief. Founded in 1980, BIAA is the nation s oldest and largest nationwide brain injury advocacy organization. Its mission is to advance brain injury prevention, research, treatment, and education, and to improve the quality of life for all individuals affected by brain injury. Decades of work in the field make BIAA uniquely capable of contributing to the Court s understanding of the consequences of the unprecedented proposed settlement in this case. Accordingly, BIAA asks the Court for leave to participate in this case as amicus curiae, with the right to review the proposed settlement agreement (once it is received by the Court) and relevant documents, so that BIAA can file an amicus curiae brief to assist the Court in assessing the fairness of the proposed settlement. As grounds for this motion, BIAA states as follows

3 Case 212-md AB Document 5608 Filed 12/17/13 Page 2 of 4 1. BIAA has at least two special interests in this case. First, defendant National Football League will reportedly allocate $10 million of the settlement funds toward medical and safety research and education. As the nation s leading advocate for all persons who have sustained brain injuries, BIAA has an interest in ensuring that these funds are directed toward projects of the greatest scientific promise and benefit for players and the public. BIAA s deep understanding of the disease-causative and disease-accelerative nature of brain injury, as well as the episodic and long-term treatment and support needs of patients and family caregivers, can help the Court evaluate questions of neuroscience and public health that the parties might not have sufficient incentive or expertise to bring to the Court s attention. Second, the largest piece of the settlement, reportedly at least $675 million, is to be allocated toward an injury compensation fund for eligible retired players who manifest severe cognitive impairment within 10 years of the date of the proposed settlement. BIAA and its team of experts (including National Medical Director Brent E. Masel, M.D., who authored the seminal paper, Conceptualizing Brain Injury as a Chronic Disease ), are uniquely qualified to help the Court evaluate questions of fairness with respect to eligibility parameters and compensation levels in the proposed settlement by analyzing how these determinations relate to the progressive physical, psychiatric, and cognitive disease processes that are caused and/or accelerated by brain injury, but may not manifest in clinically significant symptoms upon initial examination. 2. BIAA s special interests are not represented currently in the litigation. Whereas both plaintiffs and defendants represent their own limited constituencies, BIAA is an independent, national organization, whose interest is in the entire field of brain injury, and its work benefits all who suffer from brain injury. For example, there is no particular reason to expect either the plaintiffs or the defendants to care, to any meaningful degree, where the money 2

4 Case 212-md AB Document 5608 Filed 12/17/13 Page 3 of 4 for brain injury research and education is allocated, but the public has a strong interest in ensuring that these funds are not squandered as a public-relations afterthought to the overall settlement. Similarly, while plaintiffs counsel are understandably and quite properly focused on the existing plaintiffs, there is a strong public interest in ensuring that the eligibility criteria adopted in this settlement do not exclude individuals who may already be at great risk of future neurological deficits, and who ultimately could make significant claims on public health resources. BIAA, as the voice of brain injury in the United States, can help the Court ensure that these larger public interests are not neglected in the settlement. 3. BIAA proffers timely and useful information that will aid the Court in assessing the fairness of the proposed settlement. BIAA s expertise regarding brain injury, rooted in its comprehensive, nationwide network of physicians, researchers, rehabilitation experts and facilities, caregivers, and brain injury sufferers and their families, makes it uniquely qualified to proffer useful information to the Court. In particular, BIAA s expert knowledge of how brain injuries evolve over a lifespan will aid the Court in assessing the fairness of how eligibility for the injury compensation fund is determined, and its work advocating for brain injury prevention, research, treatment, and education will enable BIAA to advise the Court on the fairness of any allocation of funds toward these activities. Further, because the parties have not yet submitted the proposed settlement to the Court, BIAA s participation and briefing will be timely and will not delay the Court s assessment of the settlement s fairness. 4. BIAA is not partial to a particular outcome in this case. BIAA is not partial to whether the case settles; and if it does, BIAA does not care whether any defendant admits liability as part of the settlement, or whether any particular amount goes to any specific player. BIAA s mission is to help the victims (and their families) whose lives have been devastated by 3

5 Case 212-md AB Document 5608 Filed 12/17/13 Page 4 of 4 brain injury, to educate the public (including present and future participants in contact sports) about brain injury, and to work toward preventing brain injury. 5. BIAA currently has no place at the table in the resolution of this important brain injury lawsuit. As the voice of brain injury in the United States, BIAA is a recognized and uniquely qualified stakeholder in the discussion of how best to prevent and treat brain injury, and how to improve the quality of life for all individuals affected by brain injury. The Court should therefore grant BIAA amicus-plus status, meaning BIAA should be given the right to review case documents and discovery, and file briefs before the Court in order to assist the Court in assessing the fairness of the proposed settlement. For the foregoing reasons, and for those more fully discussed in BIAA s accompanying memorandum in support, this Court should grant BIAA s motion. Date December 17, 2013 Respectfully submitted, Brain Injury Association of America, Proposed Amicus Curiae By /s/ Christopher J. Wright Christopher J. Wright, DC Bar No Mark A. Grannis, DC Bar No Stephen W. Miller,* NY Bar No Wiltshire & Grannis LLP 1200 Eighteenth Street NW 12th Floor Washington, DC (202) (202) (fax) cwright@wiltshiregrannis.com mgrannis@wiltshiregrannis.com smiller@wiltshiregrannis.com (Admitted pro hac vice) *Admitted only in New York; supervised by Patrick O Donnell, a member of the DC Bar, while DC Bar application pending. 4

6 Case 212-md AB Document Filed 12/17/13 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE NATIONAL FOOTBALL No. 212-md AB PLAYERS CONCUSSION INJURY LITIGATION MDL No THIS DOCUMENT RELATES TO All Actions MEMORANDUM OF LAW IN SUPPORT OF BRAIN INJURY ASSOCIATION OF AMERICA S MOTION TO BE DESIGNATED AMICUS CURIAE WITH THE RIGHT TO REVIEW THE PROPOSED SETTLEMENT AND RELEVANT DOCUMENTS, AND FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF Introduction Rarely is a subject so pervasive that it regularly crosses multiple sections of a newspaper, from headline news to sports, science, technology, and health. Rarer still is it when that subject, despite its ubiquity, is ill-understood by the public. Such is the case with brain injury. Founded in 1980, the Brain Injury Association of America ( BIAA ) is the nation s oldest and largest nationwide brain injury advocacy organization. Its mission is to advance the causes of brain injury prevention, research, treatment, and education, and to improve the quality of life for all individuals affected by brain injury. Although BIAA has achieved noteworthy successes in its mission, much work remains on all fronts. The case presently before the Court deals with one class of brain injury victims retired professional football players but its resolution likely will affect similar lawsuits brought on behalf of other classes of brain injury victims, as well as the treatment and prevention of brain

7 Case 212-md AB Document Filed 12/17/13 Page 2 of 7 injury generally. Based on publicly available information, the proposed settlement in this case will include a provision of funds for research and education on brain injury, as well as an injury compensation fund that may disfavor persons whose injuries are not yet manifest even though scientific studies now identify brain injury as a progressive disease. As such, the resolution of this complicated case is of great public interest. After decades of work in the field, BIAA is uniquely capable of assisting the Court s evaluation of the public-interest consequences of the proposed settlement. Accordingly, BIAA respectfully asks the Court for leave to participate as amicus curiae so that BIAA can review the proposed settlement (once it is received by the Court), and comment on its fairness. Discussion A. Standard District courts have inherent authority and broad discretion to designate amici curiae. Liberty Res., Inc. v. Philadelphia Hous. Auth., 395 F. Supp. 2d 206, 209 (E.D. Pa. 2005); Sciotto v. Marple Newtown Sch. Dist., 70 F. Supp. 2d 553, 554 (E.D. Pa. 1999). Although no Federal Rule of Civil Procedure guides the analysis, district courts grant amicus curiae status where (1) the proposed amicus has a special interest in the particular case; (2) that interest is not represented competently or at all in the case; (3) the proffered information is timely and useful; and (4) the amicus is not partial to a particular outcome in the case. Liberty Res., 395 F. Supp. 2d at 209. There is no rule... that amici must be totally disinterested, id. (quoting Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982)), and there is no requirement that amicus must not be motivated by pecuniary concerns, see Neonatology Assocs., P.A. v. C.I.R., 293 F.3d 128, 131 (3d Cir. 2002). Participation by an amicus may be particularly appropriate where the amicus will ensure a complete and plenary presentation of difficult issues in a case involving important 2

8 Case 212-md AB Document Filed 12/17/13 Page 3 of 7 public interests, Liberty Res., 395 F. Supp. 2d at , or where the amicus can contribute to the court's understanding of the consequences of the settlement proposed by the parties, Harris v. Pernsley, 820 F.2d 592, 603 (3d Cir. 1987). Indeed, some courts (including this Court) have granted amicus plus status to qualified entities, which enables the amicus to receive documents and discovery, and file briefs and memoranda on motions before the court where amicus participation will assist the Court in reaching a just decision.... Liberty Res., 395 F. Supp. 2d at 210. B. BIAA Meets This Standard and Should be Designated Amicus Curiae, Permitted to Review the Proposed Settlement and Relevant Documents, and Given Leave to File an Amicus Curiae Brief Addressing the Fairness of the Settlement. BIAA should be designated amicus curiae because it has at least two special interests in this case. See id. at 209. First, based on publicly available information, defendant National Football League will reportedly allocate $10 million of the settlement funds toward medical, safety, and injury-prevention research. See Press Release, Alt. Dispute Resolution Ctr., NFL, Retired Players Resolve Concussion Litigation; Court-Appointed Mediator Hails Historic Agreement, at 4, available at http//nfllabor.files.wordpress.com/2013/08/press-release-2.pdf. As the nation s leading advocate for all persons who have sustained brain injuries, BIAA has an interest in ensuring that these funds are directed toward projects with the greatest scientific promise and benefit for players and the public. BIAA s deep understanding of the diseasecausative and disease-accelerative nature of brain injury, as well as the episodic and long-term treatment and support needs of patients and family caregivers, can help the Court evaluate questions of neuroscience and public health that the parties might not have sufficient incentive or expertise to bring to the Court s attention. 3

9 Case 212-md AB Document Filed 12/17/13 Page 4 of 7 Second, according to the same report, the largest piece of the settlement (at least $675 million) will go toward an injury compensation fund for retired players for eligible retired players who manifest severe cognitive impairment within 10 years of the date of the proposed settlement. Id. at 3 4. BIAA and its team of experts (including National Medical Director Brent E. Masel, M.D., who authored the seminal paper, Conceptualizing Brain Injury as a Chronic Disease ), are uniquely qualified to help the Court evaluate questions of fairness with respect to eligibility parameters and compensation levels in the proposed settlement by analyzing how these determinations relate to the progressive physical, psychiatric, and cognitive disease processes that are caused and/or accelerated by brain injury, but may not manifest in clinically significant symptoms upon initial examination. In addition, BIAA satisfies Liberty Resources second prong because its special interests are not represented currently in the litigation. 395 F. Supp. 2d at 209. Whereas both plaintiffs and defendants represent their own limited constituencies, BIAA is an established, recognized, and independent national organization, whose interest is in the entire field of brain injury, and whose work benefits all who suffer because of it. For example, there is no particular reason to expect either the plaintiffs or the defendants to care, to any meaningful degree, where the money for brain injury research and education is allocated, but the public has a strong interest in ensuring that these funds are not squandered as a public-relations afterthought to the overall settlement. Similarly, while plaintiffs counsel are understandably and quite properly focused on the existing plaintiffs, there is a strong public interest in ensuring that the eligibility criteria adopted in this settlement do not exclude individuals who may already be at great risk of future neurological deficits, and who ultimately could make significant future claims on public health resources. 4

10 Case 212-md AB Document Filed 12/17/13 Page 5 of 7 In Liberty Resources, this Court bestowed amicus-plus status on a party after denying its motion to intervene where the proposed intervenor was a stakeholder in that case s core debate, but had no place at the table. Id. at 210. Similarly, BIAA, as the voice of brain injury in the United States, is a recognized and uniquely qualified stakeholder in the discussion of how best to prevent and treat brain injury at large, and how to improve the quality of life for all individuals affected by brain injury. Its participation in this case can help the Court ensure that these larger public interests are not neglected in the settlement. BIAA also satisfies Liberty Resources third prong because it proffers timely and useful information that will aid the Court in assessing the fairness of the proposed settlement. Id. at 209. BIAA s expertise regarding brain injury, rooted in its comprehensive, nationwide network of physicians, researchers, rehabilitation experts and facilities, caregivers, and brain injury sufferers and their families, makes it uniquely qualified to proffer useful information to the Court. In particular, BIAA s expert knowledge of how brain injuries evolve and progress across a lifespan will aid the Court in assessing the fairness of how eligibility determinations for the injury compensation fund are determined, and its work advocating for brain injury prevention, research, treatment, and education will enable BIAA to advise the Court on the fairness of any allocation of funds toward these activities. Further, because the parties have not yet submitted the proposed settlement to the Court, BIAA s participation and briefing will be timely and will not delay the Court s assessment of the settlement s fairness. Moreover, BIAA is not partial to a particular outcome in this case, and thus satisfies the final prong of the Liberty Resources test. Id. BIAA is not partial to whether the case settles; and if it does, BIAA does not care whether any defendant admits liability as part of the settlement, or whether any particular amount goes to any specific player. BIAA s mission is to help the 5

11 Case 212-md AB Document Filed 12/17/13 Page 6 of 7 victims (and their families) whose lives have been devastated by brain injury, to educate the public (including present and future participants in contact sports) about brain injury, and to work toward preventing brain injury. Finally, this case is one of great public concern, not only because of professional football s popularity, but also (and more importantly) because of the ripple effects beyond the gridiron any resolution here will have on the future of education, research, diagnosis, and treatment of brain injury. Particularly with regard to the proposed settlement s research and injury compensation funds, and owing to BIAA s unique expertise in the field, BIAA s participation in this case will serve the Court well as it seeks to reach a proper decision on the fairness of the proposed settlement. * * * 6

12 Case 212-md AB Document Filed 12/17/13 Page 7 of 7 Conclusion For the foregoing reasons, BIAA respectfully requests that the Court grant BIAA s motion to participate in this case as amicus curiae, with the right to review the proposed settlement agreement (once it is received by the Court) and relevant documents, so that BIAA can file an amicus curiae brief to assist the Court in assessing the fairness of the proposed settlement. Dated this 17th day of December, Respectfully submitted, Brain Injury Association of America, Proposed Amicus Curiae By /s/ Christopher J. Wright Christopher J. Wright, DC Bar No Mark A. Grannis, DC Bar No Stephen W. Miller,* NY Bar No Wiltshire & Grannis LLP 1200 Eighteenth Street NW 12th Floor Washington, DC (202) (202) (fax) cwright@wiltshiregrannis.com mgrannis@wiltshiregrannis.com smiller@wiltshiregrannis.com (Admitted pro hac vice) *Admitted only in New York; supervised by Patrick O Donnell, a member of the DC Bar, while DC Bar application pending. 7

13 Case 212-md AB Document Filed 12/17/13 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE NATIONAL FOOTBALL No. 212-md AB PLAYERS CONCUSSION INJURY LITIGATION MDL No THIS DOCUMENT RELATES TO All Actions [Proposed] O R D E R AND NOW this day of, 2013, upon consideration of Brain Injury Association of America s Motion to be designated as amicus curiae with the right to review the proposed settlement and relevant documents, and for leave to file amicus curiae brief, it is hereby ORDERED and DECREED that Movant Brain Injury Association of America s Motion is GRANTED. BY THE COURT Anita B. Brody, J.

14 Case 212-md AB Document Filed 12/17/13 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE NATIONAL FOOTBALL No. 212-md AB PLAYERS CONCUSSION INJURY LITIGATION MDL No THIS DOCUMENT RELATES TO All Actions CERTIFICATE OF SERVICE I, Christopher J. Wright, hereby certify that on December 17, 2013, I caused the following documents (1) Brain Injury Association of America s Motion to be Designated Amicus Curiae with the Right to Review the Proposed Settlement and Relevant Documents, and for Leave to File an Amicus Curiae Brief; (2) Memorandum of Law in Support of Brain Injury Association of America s Motion to be Designated Amicus Curiae with the Right to Review the Proposed Settlement and Relevant Documents, and for Leave to File an Amicus Curiae Brief; and (3) [Proposed] Order, to be electronically filed with the Clerk of Court through ECF and be available for viewing and downloading from the ECF system, and that ECF will send an electronic notice of electronic filing to counsel of record in the above-captioned case. /s/ Christopher J. Wright Attorney for Proposed Amicus Brain Injury Association of America Admitted pro hac vice (DC Bar No ) Wiltshire & Grannis LLP 1200 Eighteenth Street NW

15 Case 212-md AB Document Filed 12/17/13 Page 2 of 2 12th Floor Washington, DC (202) (202) (fax) cwright@wiltshiregrannis.com 2

16 Case 212-md AB Document 5633 Filed 12/31/13 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE NATIONAL FOOTBALL No. 212-md AB LEAGUE PLAYERS CONCUSSION INJURY LITIGATION MDL No Hon. Anita B. Brody THIS DOCUMENT RELATES TO All Actions CO-LEAD COUNSELS OPPOSITION TO THE MOTION OF BRAIN INJURY ASSOCIATION OF AMERICA TO BE DESIGNATED AMICUS CURIAE WITH THE RIGHT TO REVIEW THE PROPOSED SETTLEMENT AGREEMENT AND RELEVANT DOCUMENTS, AND FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF [ECF #5608] Plaintiffs Co-Lead Counsel submits this opposition to the motion of Brain Injury Association of America ( BIAA ) to be designated amicus curiae in the above-captioned action, to be permitted to review the proposed settlement agreement and relevant documents, and for leave to file an amicus curiae brief purportedly in order to assist the Court in assessing the fairness of the proposed settlement. BIAA s motion should be denied because (1) the motion is premature since the Court imposed a nondisclosure order in this case regarding all settlement discussions, preventing all parties including the plaintiffs themselves from knowing the details of the proposed settlement until it is filed on the public record, at which time all interested parties will be given ample opportunity to evaluate the proposed class settlement prior to its final approval; (2) the Court already has appointed Mr. Perry Golkin pursuant to Fed. R. Civ. P. 53 to serve as a Special Master to assist the Court in evaluating the financial aspects of the proposed 1

17 Case 212-md AB Document 5633 Filed 12/31/13 Page 2 of 9 settlement between the NFL Defendants and the plaintiffs [ECF #5607 at 1]; and (3) BIAA has not demonstrated any need for its designation as amicus curiae-plus in these proceedings. For the reasons stated below, BIAA s motion should be denied. I. INTRODUCTION More than 4,500 retired NFL Football players have filed lawsuits against the National Football League and NFL Properties LLC (collectively, the NFL Defendants ) alleging that the NFL breached its duties to Plaintiffs by failing to take reasonable actions to protect players from the chronic risks created by concussive and sub-concussive head injuries and by concealing those risks. The Plaintiffs seek injunctive relief, medical monitoring, and financial compensation for the long-term cognitive injuries suffered by retired NFL Football players, and other losses. On January 31, 2012, the Judicial Panel on Multidistrict Litigation ( JPML ) transferred the federal actions then-pending against the NFL Defendants to the Eastern District of Pennsylvania pursuant to 28 U.S.C See In re National Football League Players Concussion Injury Litigation, MDL 2323, 842 F. Supp. 2d 1378 (J.P.M.L. 2012). The JPML found that these cases share factual issues arising from allegations against the NFL stemming from injuries sustained while playing professional football, including damages resulting from the permanent long-term effects of concussions while playing professional football in the NFL and that centralization under Section 1407 in the Eastern District of Pennsylvania will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Id. at On July 8, 2013, the Court appointed retired U.S. Dist. Ct. Judge Layn Phillips as a mediator to assist the parties in reaching a global resolution of this dispute [ECF #5128]. The Court instructed the parties and their counsel to refrain from publicly discussing the mediation 2

18 Case 212-md AB Document 5633 Filed 12/31/13 Page 3 of 9 process or disclosing any discussions they may have as part of that process, without further order of the Court. Id. The Court s nondisclosure order is still in place. Following Court-ordered mediation, on August 29, 2013, the Court announced that a proposed class action settlement had been reached between the Plaintiffs and the NFL Defendants and that a Term Sheet had been signed [ECF #5235]. The Mediator reported to the Court generally that the proposed settlement provides for a payment by the NFL defendants of $765,000,000 to fund medical exams, concussion-related compensation, and a program of medical research for retired NFL players and their families, as well as to pay certain litigation expenses. In addition to this, the NFL will pay court-approved attorneys fees. Id. In its Order the Court reserved judgment on the fairness and adequacy of the settlement pending the Settling Parties presentation of the Settlement Agreement to the Court, along with motions for preliminary and final approval. Id. Over the past several months, the parties have negotiated and finalized the details of the formal Settlement Agreement and exhibits based on the parties agreed-to Term Sheet. It is anticipated that preliminary approval motion papers will be filed with the Court shortly. On December 16, 2013, pursuant to Fed. R. Civ. P. 53, the Court appointed Mr. Perry Golkin to serve as Special Master to assist the Court in evaluating the financial aspects of the proposed settlement in view of its expected financial complexities [ECF #5607]. Mr. Golkin agreed to serve in this capacity without compensation. The Court ordered, however, that all expenses reasonably necessary to fulfill his duties will be shared equally by the Plaintiffs and the NFL Defendants prior to final approval, and that the allocation may be adjusted at the time of final approval. Id. The Court found that the appointment of the Special Master will materially contribute to the approval process, thereby providing considerable benefit to all parties. Id. at 3. 3

19 Case 212-md AB Document 5633 Filed 12/31/13 Page 4 of 9 In light of the Court s jurisdiction over these proceedings and the proposed class settlement, in light of the Court s appointment of a Special Master to assist the Court in the approval process, in light of the fact that all interested parties will be able to review the Settlement Agreement and comment on it once it has been filed on the public record and prior to its final approval, and in light of BIAA s failure to demonstrate any need for it to be designated with amicus curiae-plus status at this time, BIAA s motion to assist the Court in evaluat[ing] questions of fairness with respect to eligibility parameters and compensation levels in the proposed settlement should be denied. II. ARGUMENT This MDL Court has jurisdiction over these proceedings, the parties, and the proposed class settlement. 28 U.S.C. 1407; In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prod. Liab. Litig., 431 F.3d 141, 149 n.4 (3rd Cir. 2005); In re Auto Refinishing Paint Antitrust Litig., 358 F.3d 288, 297 n.11 (3rd Cir. 2004). The Court has overseen the multidistrict litigation for almost two years, it has been involved in the settlement negotiations between the parties, and it appointed a mediator to achieve a global resolution of the dispute against the NFL Defendants. Most recently, pursuant to Fed. R. Civ. P. 53, the Court appointed Mr. Perry Golkin as a Special Master to assist the Court in the settlement approval process, given the financial complexities involved. The parties have not yet presented formal settlement papers, including the Settlement Agreement and exhibits, to the Court for preliminary approval, but will do so shortly. The Court has in place a nondisclosure order which prevents the parties who are negotiating the Settlement Agreement from disclosing its details to the plaintiffs, the non-settling defendants and the public prior to filing the formal Settlement Agreement on the docket [see ECF #5128]. Thus, any 4

20 Case 212-md AB Document 5633 Filed 12/31/13 Page 5 of 9 motion by BIAA or other party to intervene in the settlement approval process at this time and review drafts of documents which are still being revised is premature and unnecessary. Once the Settlement Agreement is placed on the docket and all details are known, BIAA s motion may become moot, or BIAA will have an opportunity to refile its motion at that time. Moreover, all interested parties will have an opportunity to examine the terms of the proposed settlement and the formal Settlement Agreement prior to its final approval, opt out therefrom, object thereto and/or comment thereon at the Fairness Hearing. There is simply no need or basis at this juncture to have the input of BIAA or others on the proposed settlement. Despite its proclaimed good intentions as the voice of brain injury in the United States, BIAA has not demonstrated any basis for the Court to bestow upon this group amicus curiaeplus status prior to the filing of the formal Settlement Agreement, exhibits, and preliminary approval motion papers. BIAA s motion demonstrates a misunderstanding of certain key terms in the Settlement Agreement, which has not been presented to the Court for preliminary approval. The BIAA s brief conflates the requirements for a third party to participate as traditional amicus curiae with the consideration of whether their participation as amicus plus is necessary for this case. Plaintiffs counsel acknowledges that this Court permitted amicus plus participation of a third party in Liberty Resources, Inc. v. Philadelphia Housing Authority, 395 F. Supp. 2d 206, (E.D. Pa. 2005). The Court allowed this in Liberty, in part, to ensure a complete and plenary presentation of difficult issues. Liberty, 395 F. Supp. 2d at 209 (internal quotations and citation omitted). In the NFL Concussion Litigation MDL, however, the Court has already appointed a Special Master to assist with the evaluation of complex issues. See 5

21 Case 212-md AB Document 5633 Filed 12/31/13 Page 6 of 9 E.C.F. # Therefore, the participation of a third party with amicus plus status is simply unnecessary. III. CONCLUSION Plaintiffs request that the Court deny the motion of BIAA to be designated as amicus curiae in these proceedings. Dated December 31, 2013 Respectfully Submitted /s/ Christopher A. Seeger Christopher A. Seeger SEEGER WEISS LLP 77 Water Street New York, NY Phone (212) Fax (212) cseeger@seegerweiss.com Co-Lead Counsel Sol Weiss ANAPOL SCHWARTZ 1710 Spruce Street Philadelphia, PA Phone (215) Fax (215) sweiss@anapolschwartz.com Co-Lead Counsel David Buchanan SEEGER WEISS LLP 77 Water Street New York, NY Phone (212) Fax (212) dbuchanan@seegerweiss.com Thomas V. Girardi Graham B. LippSmith GIRARDI KEESE 1126 Wilshire Blvd Los Angeles, CA Larry E. Coben ANAPOL SCHWARTZ 1710 Spruce Street Philadelphia, PA Phone (215) Fax (215) lcoben@anapolschwartz.com Michael D. Hausfeld Richard S. Lewis HAUSFELD LLP 1700 K Street, N.W., Suite 650 Washington, D.C

22 Case 212-md AB Document 5633 Filed 12/31/13 Page 7 of 9 Phone (213) Fax (213) tgirardi@girardikeese.com glippsmith@girardikeese.com Gene Locks David D. Langfitt LOCKS LAW FIRM The Curtis Center Suite 720 East 601 Walnut Street Philadelphia, PA Phone (215) Fax (215) glocks@lockslaw.com dlangfitt@lockslaw.com Phone (202) Fax (202) mhausfeld@hausfeldllp.com rlewis@hausfeldllp.com Steven C. Marks Ricardo M. Martinez-Cid PODHURST ORSECK P.A. City National Bank Building 25 W. Flagler Street, Suite 800 Miami, FL Phone (305) Fax (305) rmartinez-cid@podhurst.com smarks@podhurst.com Plaintiffs Executive Committee James R. Dugan, II THE DUGAN LAW FIRM One Canal Place, Suite Canal Street New Orleans, LA Phone (504) Fax (504) jdugan@dugan-lawfirm.com Arnold Levin LEVIN FISHBEIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA Phone (215) Fax (215) alevin@lfsblaw.com Dianne M. Nast RODANAST, PC 801 Estelle Drive Lancaster, PA Anthony Tarricone KREINDLER & KREINDLER LLP 277 Dartmouth Street Boston, MA Phone (617) Fax (617) atarricone@kreindler.com Michael L. McGlamry POPE, MCGLAMRY, KILPATRICK MORRISON & NORWOOD, P.C Peachtree Road, NE The Pinnacle, Suite 925 P.O. Box ( ) Atlanta, GA Phone (404) Fax (404) efile@pmkm.com David A. Rosen ROSE, KLEIN & MARIAS LLP 801 South Grand Avenue, 11th Floor Los Angeles, CA

23 Case 212-md AB Document 5633 Filed 12/31/13 Page 8 of 9 Phone (717) Fax (717) dnast@rodanast.com Charles S. Zimmerman ZIMMERMAN REED PLLP 1100 IDS Center 80 South Eighth Street Minneapolis, MN Phone (612) Fax (612) charles.zimmerman@zimmreed.com Phone (213) Fax (213) d.rosen@rkmlaw.net Derriel McCorvey THE LAW FIRM OF DERRIEL C. MCCORVEY 1115 W. Main Street, Suite 14 P.O. Box 2473 Lafayette, LA Phone (337) derriel@mccorveylaw.com David S. Casey, Jr. Fred Schenk CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD LLP 110 Laurel Street San Diego, CA Phone (619) Fax (619) dcasey@cglaw.com fschenk@cglaw.com Plaintiffs Steering Committee Jeannine Kenney HAUSFELD LLP 1604 Locust Street Second Floor Philadelphia, PA Telephone (215) Facsimile (215) jkenney@hausfeldllp.com Plaintiffs Liaison Counsel 8

24 Case 212-md AB Document 5633 Filed 12/31/13 Page 9 of 9 CERTIFICATE OF SERVICE It is hereby certified that a true copy of the foregoing was served electronically via the Court s electronic filing system on the 31 st day of December, 2013, upon all counsel of record. Dated December 31, 2013 /s/ Christopher A. Seeger Christopher A. Seeger 9

25 Case 212-md AB Document Filed 01/10/14 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE NATIONAL FOOTBALL No. 212-md AB LEAGUE PLAYERS CONCUSSION INJURY LITIGATION MDL No THIS DOCUMENT RELATES TO All Actions REPLY MEMORANDUM OF LAW IN SUPPORT OF BRAIN INJURY ASSOCIATION OF AMERICA S MOTION TO BE DESIGNATED AMICUS CURIAE WITH THE RIGHT TO REVIEW THE PROPOSED SETTLEMENT AND RELEVANT DOCUMENTS, AND FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF Introduction In cases of great public concern, courts regularly receive input from experts in the field as they work to reach a just decision. This Court should avail itself of the Brain Injury Association of America s assistance in this case. Here, the Court must decide whether to approve the recently filed proposed class settlement, which deals with brain injury among retired National Football League ( NFL ) professional football players. The decision will have an immense effect not only on the parties involved here, but also on all current and future victims of brain injury. It is for this reason the nation s oldest and largest nationwide brain injury advocacy organization, the Brain Injury Association of America ( BIAA ), has requested to participate in this case as amicus curiae as explained in its motion and memorandum in support. (Dkts ) The benefit to the Court from BIAA s participation in this case as amicus-plus is even clearer now that the

26 Case 212-md AB Document Filed 01/10/14 Page 2 of 5 proposed class settlement has been submitted to the Court for preliminary approval. (Dkts ) The proposed document, which calls for a settlement amount of $750 million, is dense and sets up a complex eligibility determination structure for proposed class members to receive compensation. (Dkt ) The proposed settlement also calls for an education fund of $10 million to fund, among other things, injury prevention with respect to football players. (Id.) BIAA s team of experts could prove immensely helpful to the Court as it assesses the consequences of the proposed settlement and its fairness. Nevertheless, plaintiffs co-lead counsel oppose including BIAA in this process, arguing BIAA s motion is untimely and its participation duplicative or unnecessary. Their arguments are misplaced or inapplicable, and this Court should grant BIAA s motion and designate it amicus curiae with the right to review the proposed settlement and relevant documents, and grant it leave to file an amicus curiae brief. Discussion A. BIAA s Motion is Timely. Plaintiffs co-lead counsel s first argument against BIAA s participation, specifically that BIAA s motion is premature because the settlement documents are still being drafted, has been rendered moot by the filing of the proposed settlement agreement. Further, BIAA s motion is not mooted by the filing of the settlement, as plaintiffs co-lead counsel suggest, because BIAA asked for more than just the right to review the settlement and relevant documents BIAA also requested to submit an amicus curiae brief addressing the fairness of the proposed settlement. But in any case, BIAA s motion to be granted amicus-plus status was timely when it was filed because it could not have delayed the Court s assessment of the proposed settlement. See Liberty 2

27 Case 212-md AB Document Filed 01/10/14 Page 3 of 5 Res., Inc. v. Philadelphia Hous. Auth., 395 F. Supp. 2d 206, (E.D. Pa. 2005). The subsequent filing of the settlement only strengthens BIAA s timeliness argument. B. BIAA s Participation in this Case is Not Duplicative of the Special Master and Will Assist the Court in Reaching a Just Decision. Plaintiff s co-lead counsel s argument that BIAA does not need to be granted amicus curiae-plus status, in part because of the appointment of the Special Master, misunderstands the standard for designating amici curiae, conflates the roles of the Special Master and proposed amicus, and fails to address BIAA s argument that it is a stakeholder without a seat at the table in this case. First, counsel argue that BIAA has not demonstrated any need for its designation as amicus curiae-plus in these proceedings. (Opp n Br. at 2, Dkt ) However, need appears nowhere in the standard this Court has articulated for granting amicus-plus status. Liberty Res., 395 F. Supp. 2d at 209 (requiring that the proposed amicus have a special interest that is not represented competently or at all in the particular case; that the proffered information be timely and useful; and that the amicus not be partial to a particular outcome in the case). BIAA explained how it meets that standard in its original memorandum in support of its motion, and the opposition fails to dispute, in any way, that BIAA has special interests in this case, that it proffers useful information, and that it is not partial to a particular outcome in this case. Counsel do appear to argue, however, that BIAA s interests are already represented in this action, and make much ado about the Court s appointment of a Special Master. Specifically, they argue that the appointment of a Special Master with an expertise in finance precludes this Court from also enlisting the assistance of BIAA, even though BIAA offers different, but similarly relevant and important, expertise. There is no basis for such an argument, and to the extent they argue BIAA will only duplicate the Special Master s function, they are wrong. 3

28 Case 212-md AB Document Filed 01/10/14 Page 4 of 5 The Court appointed this Special Master, Mr. Perry Golkin, because of the expected financial complexity of the proposed settlement. (Order Appointing Special Master, Dkt ) BIAA agrees that the Special Master, and not BIAA, should assist the Court with its assessment of the complex financial questions in the proposed settlement. But whereas the Special Master is well equipped to assist the Court with those issues, BIAA will aid the Court in evaluating questions of neuroscience and public health as they relate to eligibility determinations for the injury compensation fund, and toward which activities the education fund will be directed. BIAA s expertise is rooted in its deep understanding of the disease-causative and disease-accelerative nature of brain injury, as well as the episodic and long-term treatment and support needs of brain injury patients and family caregivers. To illustrate its expertise, BIAA submits, as Exhibits 2-4 to its motion for leave to file a reply memorandum, the curricula vitae of three BIAA board members, Drs. Brent Masel, Gregory O Shanick, and Mark Ashley, who, among others, will review the proposed settlement and, if the Court grants BIAA s original motion, participate in the drafting of BIAA s amicus curiae brief. This cadre of independent experts will be a unique and useful resource to the Court in determining the essential fairness of the proposed settlement. Finally, BIAA, as the voice of brain injury in the United States, is a recognized and uniquely qualified stakeholder in the discussion of how best to prevent and treat brain injury at large, and how to improve the quality of life for all individuals affected by brain injury. Like the amicus-plus in Liberty Resources, BIAA is a stakeholder in this case s core debate regarding brain injury, but currently has no place at the table. Its participation here will help the Court ensure that the larger public interests implicated by the settlement are not neglected. 4

29 Case 212-md AB Document Filed 01/10/14 Page 5 of 5 Conclusion For the foregoing reasons, as well as those stated more fully in its original memorandum of law in support, BIAA respectfully requests that the Court grant BIAA s motion (Dkt. 5608) to participate in this case as amicus curiae, with the right to review the proposed settlement agreement and relevant documents, so that BIAA can file an amicus curiae brief to assist the Court in assessing the fairness of the proposed settlement. Dated this 10th day of January, Respectfully submitted, Brain Injury Association of America, Proposed Amicus Curiae By /s/ Christopher J. Wright Christopher J. Wright, DC Bar No Mark A. Grannis, DC Bar No Stephen W. Miller, DC Bar (Admitted 1/10/14) Wiltshire & Grannis LLP 1200 Eighteenth Street NW 12th Floor Washington, DC (202) (202) (fax) cwright@wiltshiregrannis.com mgrannis@wiltshiregrannis.com smiller@wiltshiregrannis.com Admitted pro hac vice 5

30 Case 212-md AB Document 5650 Filed 01/10/14 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN RE NATIONAL FOOTBALL No. 212-md AB LEAGUE PLAYERS CONCUSSION INJURY LITIGATION MDL No THIS DOCUMENT RELATES TO All Actions BRAIN INJURY ASSOCIATION OF AMERICA S MOTION FOR LEAVE TO FILE REPLY MEMORANDUM IN SUPPORT OF ITS MOTION TO BE DESIGNATED AMICUS CURIAE WITH THE RIGHT TO REVIEW THE PROPOSED SETTLEMENT AND RELEVANT DOCUMENTS, AND FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF The Brain Injury Association of America ( BIAA ) respectfully moves for leave to file a reply memorandum in support of its motion to be designated amicus curiae, a copy of which is attached as Exhibit 1 to this motion. In support, BIAA states as follows 1. On December 17, 2013, BIAA filed a motion to be designated amicus curiae in this action, to be permitted to review the proposed settlement agreement and relevant documents, and for leave to file an amicus curiae brief. (Dkt ) 2. On December 31, 2013, plaintiffs co-lead counsel filed an opposition to BIAA s motion, arguing that (1) BIAA s motion was premature because the settlement terms were not yet public; (2) the Court had already appointed a Special Master in this case to assist the Court in evaluating the financial aspects of the proposed settlement due to the financial complexities

31 Case 212-md AB Document 5650 Filed 01/10/14 Page 2 of 3 involved with the proposed settlement; and (3) BIAA had not demonstrated a need for amicus curiae-plus status. (Dkt ) 3. On January 6, 2014, proposed co-lead class counsel, class counsel, and subclass counsel moved for preliminary approval of the class action settlement agreement in this case, and attached to their motion a copy of the proposed settlement along with several other documents. (Dkts ) 4. BIAA should be given the opportunity to respond to plaintiffs co-lead counsel s opposition because their concerns are misplaced and/or moot. First, because the proposed settlement has now been filed with the Court, their concern regarding the supposed prematurity of BIAA s original motion is no longer applicable. In addition, the participation of both BIAA and the Special Master will not be duplicative because each has different knowledge and specialties. Whereas the Special Master is well equipped to assist the Court with assessing the complex financial arrangements in the settlement, BIAA s deep understanding of the diseasecausative and disease-accelerative nature of brain injury, as well as the episodic and long-term treatment and support needs of brain injury patients and family caregivers, will aid the Court in evaluating questions of neuroscience and public health as they relate to the injury compensation and education funds. 5. To illustrate its credentials, BIAA attaches as Exhibits 2 4 to this motion the curricula vitae of three BIAA board members, Drs. Brent Masel, Gregory O Shanick, and Mark Ashley, who, among others, will review the proposed settlement and, if the Court grants BIAA s original motion, participate in the drafting of BIAA s amicus curiae brief. 6. Plaintiffs co-lead counsel fails to address BIAA s argument that no other party with a seat at the table in this case has both the incentive and expertise to focus on how best to 2