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Third Circuit Keeps $112M Fee Award Largely Intact in NFL Concussion Case

May 8, 2020 | Posted in : Class Action / MDL, Fee Allocation / Fee Apportionment, Fee Award, Fee Issues on Appeal, Fee Request, Hourly Rates / Hourly Billing, Lodestar / Multiplier

A recent Legal Intelligencer story by Max Mitchell, “Third Circuit Oks NFL Concussion Litigation Attorney Fees-With One Exception” reports that a federal appeals court has ruled to mostly affirm the allocation of $112 million in fees for attorneys who led the NFL concussion litigation, but remanded the fee petition filed by counsel for a flank of objectors, asking the district court for further explanation.  In a unanimous decision, the U.S. Court of Appeals for the Third Circuit affirmed U.S. District Judge Anita Brody of the Eastern District of Pennsylvania’s fee award allocation, which included $51 million to co-lead class counsel Christopher Seeger’s firm Seeger Weiss.

The nonprecedential ruling rejected arguments that Brody’s decision to have Seeger review the fees and make recommendations about how to divide up the fees was improper, finding that the district court did not merely act as a rubber stamp for Seeger’s recommendations, but rather thoroughly reviewed the requests.  “The court did not blindly accept a recommendation from a single interested counsel but rather considered that recommendation in light of its knowledge of the case, the work of all counsel, and how all counsel described their own work,” Judge Patty Shwartz said in the court’s 13-page opinion.  “Furthermore, at all times, the district court understood its role as the ultimate decision maker and fulfilled its obligation to make an independent assessment of each fee petition.”

In a statement to the press, Seeger said he was pleased with the decision.  “As the Third Circuit has repeatedly concluded, the district court carefully managed this litigation and showed extraordinary involvement in the stewardship of a complicated class action settlement,” Seeger said.  “We are proud of the fact that nearly 1,150 claims have been approved to date totaling more than $785 million, providing much needed care and support to former NFL players in need.”

The circuit court, however, also found that Brody failed to give a full explanation for why she awarded just $350,000 to counsel for a group of objectors, known as the Faneca objectors.  According to Shwartz, counsel for the objectors had initially requested $20 million, which Brody denied as “unreasonable,” since it was more than five times the $4.3 million lodestar.  However, Brody did not give further explanation for why the $350,000 was reasonable, and so the circuit remanded the petition from the Faneca objectors for further explanation from Brody.

New York-based MoloLamken attorney Steven F. Molo, who represented the Faneca objectors, said he was also pleased by the circuit’s decision.  “We fought hard to win important improvements to the settlement for a very deserving class of injured plaintiffs.”  Molo said in an emailed statement.

Along with awarding New York and New Jersey-based Seeger Weiss $51 million in 2018, Brody divided up $85.6 million between more than 20 firms that were involved in developing the class settlement, which is expected to compensate more than 20,000 former NFL players who suffered cognitive injuries during their time with the league.

Seeger had initially requested $70 million from the district court, but, despite the difference in Seeger’s award, Brody’s ultimate allocation of the fees tracked somewhat closely with the fee allocations that Seeger had pitched to the court last fall.  Seeger’s proposal had said Philadelphia firm Levin Sedran & Berman should have received the second-highest award, at $10.3 million for nearly 5,000 hours spent on the case. He also said Miami-based Podhurst Orseck should receive $6.7 million, and Anapol Weiss, which is home to Sol Weiss, Seeger’s co-lead class counsel, should get $4.6 million.  Brody allocated $8.4 million to Levin Sedran, $6 million to Podhurst and $4.6 million to Anapol Weiss.

Although a total of $112.5 million in legal fees were set aside under the settlement agreement, Brody said she had decided to hold $26.9 million in reserve to cover attorney fees as the settlement continues to be implemented over the next 65 years.