United States District Court, E.D. Pennsylvania
IN RE NATIONAL FOOTBALL LEAGUE PLAYERS' CONCUSSION INJURY LITIGATION
National Football League and NFL Properties, LLC, successor-in-interest to NFL Properties, Inc., Defendants. Kevin Turner and Shawn Wooden, on behalf of themselves and others similarly situated, Plaintiffs, THIS DOCUMENT RELATES TO: ALL ACTIONS
Anita B. Brody Judge
the past year, the Court has focused on the implementation of
the Settlement Agreement. Now that implementation is in
progress, it is time to focus on attorneys' fees. There
are four key issues for the Court to decide:
(1) the total amount for the common benefit fund;
(2) the allocation of the common benefit fund among Class
(3) the amount, if any, to be set aside for attorneys'
fees incurred in the implementation of this complex
Settlement Agreement and the possible need for future
attorneys' fees throughout the 65-year term of the
(4) the reasonableness of the amount of fees to be paid by
individual Class Members from their Monetary Awards to
individually retained plaintiffs' attorneys
last issue impacts on the Monetary Awards to be distributed
to individual Class Members and will be addressed
September 14, 2017, I appointed Professor William B.
Rubenstein of Harvard Law School as an expert witness on
attorneys' fees, covering the issues of (1) fees to be
paid to individually retained plaintiffs' attorneys
(“IRPAs”) and (2) Class Counsel's 5% holdback
request. Professor Rubenstein then issued an Expert Report
covering those topics. Interested parties were given the
opportunity to respond to the Expert Report. Professor
Rubenstein then filed a reply to the interested parties'
responses to the Expert Report. Lastly, several interested
parties filed sur-replies to Professor Rubenstein's
reasons set forth below, after considering the
recommendations of Professor Rubenstein and the viewpoints of
interested parties, I adopt the conclusions of Professor
Rubenstein and order that IRPAs' fees be capped at 22%
plus reasonable costs. I further adopt Professor
Rubenstein's suggestion that IRPAs and Class Members be
allowed to file petitions seeking upward or downward
deviations from this fee cap. Such deviations, however, will
only be granted in exceptional or unique circumstances.
Expert Report, Professor Rubenstein provided extensive
background on IRPAs' involvement in this litigation.
Expert Report 2-12, ECF No. 9526. Most importantly, Professor
Rubenstein explained the special circumstances related to
IRPAs in this case:
While Class Counsel represent the interests of all class
members in the aggregate, many individual class members also
have their own lawyers. This MDL encompassed thousands of
individual lawsuits filed by hundreds of players who were
represented individually (or in groups) by their own lawyers.
Moreover, other players (or their families) retained
individual counsel to represent them in the course of the
class action proceedings. The class action settlement
foreclosed all individual cases, except for those pursued by
players who opted out of the settlement, and the class action
notice advised players that, “You do not have to hire
your own attorney.” Nonetheless, about half (47% or 9,
477 out of 20, 376) of the parties that have registered for
payment through the class action settlement are represented
by their own attorneys.
Id. at 7-8 (footnotes omitted).