By Carter Anne McGowan
Today, Judge Anita B. Brody issued a preliminary denial of the motion to approve the settlement reached by the NFL and its retired players in the lawsuit relating to neurocognitive impairments suffered by retired NFL players (In Re: National Football League Players' Concussion Injury Litigation, No. 2:12-cv-03224-AB (E.D. Pa. Mar. 6, 2012). In her denial of the motion, the judge cited concerns about whether the amount to be funded by the NFL in order to compensate neurocognitively impaired former NFL players would be adequate to pay all potential claimants. For example, if only 1,000 members of the possibly 20,000-strong class were able to prove Level 1.5 Neurocognitive Impairment, the amount allocated to the compensation fund would fall far short of the $1.5 billion necessary to compensate the impaired players. Judge Brody was unconvinced by representations from both the plaintiffs and defendants, as well as the declaration of the mediator on the case (retired U.S. District Judge Layn Phillips), that the analysis of independent economists justified the parties' belief that the fund would be adequate, as the statements made were conclusory and the record lacked supporting evidence. Therefore, Judge Brody ordered the parties to provide additional documentation supporting their conclusions.
Perhaps this is a minor snag in the process or perhaps - given that the standards for preliminary approval of a class action settlement are fairly low - it signals something more, but for now, the settlement recently presented is on hold.