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, J.
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
opinion, I will address the first issue, the total amount for
the common benefit fund. The fourth issue, relating to IRPA
contingent fee agreements will be addressed in another
opinion also filed today. The second and third issues
relating to allocation and funding for future implementation
will be determined at a later date.
Counsel has petitioned the Court for $112.5 million in
reasonable costs and attorneys' fees. I will award to
Class Counsel the requested amount comprised of $106, 817,
220.62 in attorneys' fees and $5, 682, 779.38 in costs.
The attorneys' fee portion of the award amounts to
approximately 11% of the total value of the Settlement.
Counsel also has petitioned the Court to holdback 5% of all
Monetary Awards to pay for past and future work implementing
the Settlement. I currently do not have enough information to
predict the amount of compensation Class Counsel will need
for implementation. Therefore, as a precaution, I reserve
judgment on the holdback request, and the Claims
Administrator will continue to holdback 5% of each
case began as an aggregation of lawsuits brought by former
Players against the NFL Parties for head injuries sustained
while playing NFL football. On January 31, 2012, the MDL was
formed and proceedings were centralized in this Court. The
parties spent almost two years briefing complex motions to
dismiss and engaging in intense negotiations before a
preliminary class action settlement was submitted for
approval. On January 14, 2014, the Court denied preliminary
approval over concerns as to the adequacy of the proposed
$675 million settlement fund in light of uncertainty
regarding the magnitude of damages.
April 22, 2015, after crucial revisions were made to the
Settlement, the Court granted final approval under Federal
Rule of Civil Procedure 23(b)(3). The revised Settlement
Agreement established an unlimited fund to
compensate retired NFL Players, valued then at close to $1
billion. The Agreement also included other benefits to Class
Members such as an uncapped Baseline Assessment Program,
valued at $75 million, a $10 million Education Fund, and
funding for a Claims Administrator to process Monetary
Settlement Agreement also provided for the NFL Parties to pay
“Class Counsel's attorneys' fees and reasonable
costs, ” without objection, up $112.5 million.
Settlement Agreement § 21.1, ECF No. 6481-1 at 77-78.
This same provision of the Settlement Agreement allowed Class
Counsel to petition the Court for a holdback “up to
five percent (5%) of each Monetary Award and Derivative
Claimant Award to facilitate the Settlement program and
related efforts of Class Counsel.” Id. at 78.
April 18, 2016, the Third Circuit approved the Settlement
Agreement. Petitions for review by the United States Supreme
Court were sought by objectors and denied. On January 6,
2017, the Agreement became final upon the expiration of the
time to file a Supreme Court rehearing petition.
February 13, 2017, Co-Lead Class Counsel filed a fee
petition, on behalf of the entire Class Counsel, seeking the
full $112.5 million provided for by the Settlement Agreement
for reasonable expenses and attorneys' fees. Fee Petition
Mem. 3, ECF No. 7151-1. The petition filed by Co-Lead Class
Counsel also seeks the 5% holdback of each Monetary Award to
pay for costs and fees associated with implementing the
Settlement. In response to Co-Lead Class Counsel's
petition, more than 20 objections were filed, with most of
the concerns relating to the 5% holdback request. On April
10, 2017, Co-Lead Class Counsel filed an Omnibus Reply to all
objections. Omnibus Reply, ECF No. 7464. A request for
discovery related to the fee petition was also filed by an
objector, and Co-Lead Class Counsel responded.
Court 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. See Expert Report, ECF No. 9526. 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.
Expert Reply, ECF No. 9571. Lastly, several interested
parties filed sur-replies to Professor Rubenstein's
implementation process has been ongoing for over a year. The
Monetary Awards claims process began accepting claims on
March 23, 2017, and, as of this date, the Claims
Administrator has issued notices of payable Monetary Awards
in 369 claims for a total value of over $400 million.
See NFL Concussion Settlement Website,
visited April 4, 2018). With money now flowing to Class
Members, it is appropriate for the Court to compensate Class
Rule of Civil Procedure 23(h) states that a “court may
award reasonable attorney's fees . . . that are
authorized by law or by the parties' agreement.”
Thus, “a thorough judicial review of fee applications
is required in all class action settlements.” In re
General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab.
Litig., 55 F.3d 768, 819 (3d Cir. 1995). The duty to
review fee applications “exists independently of any
objection.” In re Cendant Corp. PRIDES Litig.,
243 F.3d 722, 730 (3d Cir. 2001) (quoting Zucker v.
Occidental Petroleum Corp., 192 F.3d 1323, 1328-29 (9th
Court is obligated to protect the interests of the Class,
“acting as a fiduciary for the class.” In re
Rite Aid Corp. Sec. Litig., 396 F.3d 294, 307-08 (3d.
Cir. 2005) (citing Cendant, 264 F.3d at 231);
Report of the Third Circuit Task Force, Court Awarded
Attorney's Fees, 108 F.R.D. 237, 251 (1985). The
Settlement Agreement is in accord, stating that disbursement
of attorneys' expenses and fees is “subject to the
approval of the Court.” Settlement Agreement §
21.1, ECF No. 6481-1, at 78. Here, the Parties agreed that
the NFL would pay up to $112.5 million in expenses and fees
without objection, and Class Counsel has requested that exact
Counsel has requested the payment of $5, 682, 779.38 in
expenses. Consistent with my fiduciary obligation to review
all of Class Counsel's fee requests, I have reviewed the
expenses submitted and concluded that they are reasonable.
There have been no objections to the expenses requested by
Class Counsel. Hence, I will award Class Counsel
reimbursement for the expenses submitted.
Counsel has requested $106, 817, 220.62 in attorneys'
fees, which represents approximately 11% of the value of the
Settlement Agreement. I will award Class Counsel the
are two methods for determining the reasonableness of
attorneys' fees in class actions cases: (1)
percentage-of-recovery and (2) lodestar. The use of each
varies based on the type of litigation. “Common fund
cases . . . are generally evaluated using a
‘percentage-of-recovery' approach, followed by a
lodestar cross-check.” Halley v. Honeywell
Int'l, Inc., 861 F.3d 481, 496 (3d Cir. 2017)
as here, a defendant has voluntarily undertaken the
establishment of a separate fund to pay class counsel's
costs and fees, the case is most appropriately reviewed as a
common fund case. See, e.g., In re Prudential
Ins. Co. Am. Sales Practice Litig. Agent Actions, 148
F.3d 283, 333-34 (3d Cir. 1998); GM Trucks, 55 F.3d
at 822. Therefore, I will evaluate the request in this case
as a common fund by using the percentage-of-recovery approach
with a lodestar crosscheck.
award in this case produces a reasonable
percentage-of-recovery of 11%. The percentage-of-recovery
approach “compares the amount of attorneys' fees
sought to the total size of the fund.” Halley,
861 F.3d at 496. To determine if the percentage chosen is
reasonable, a court must apply the factors found in
Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195
n.1 (3d Cir. 2000) and Prudential, 148 F.3d at
338-40, which are:
(i) the size of the fund created and the number of persons
(ii) the presence or absence of substantial objections by
members of the class to the settlement terms and/or fees
requested by counsel;
(iii) the skill and efficiency of the attorneys ...