A recent Legal Intelligencer story, by Max Mitchell, “Court’s Expert Recommends Limit on Attorney Fees for NFL Settlement Lawyers,” reports that a Harvard Law professor has issued a report recommending a cap on all contingent fee contracts for attorneys representing former players individually and rejecting arguments that parties should pay an additional set-aside toward a common benefit fund for class counsel attorneys. A Harvard professor who reviewed the attorney fee request in the $1 billion concussion litigation settlement with the NFL has recommended placing limits on potential recovery for lawyers.
Harvard Law School professor William Rubenstein issued a 47-page report recommending that a presumptive 15 percent cap be set on all contingent fee contracts for attorneys representing former players individually. He also rejected arguments that parties should pay an additional 5 percent set-aside toward a common benefit fund for class counsel attorneys working to implement the settlement program.
Rubenstein was asked earlier this year by the U.S. District Court for the Eastern District of Pennsylvania to vet the lump-sum fee request in the case. “It is my expert opinion that my recommendations strike a proper balance between fairly compensating the lawyers for the services that they have provided—or will provide—while ensuring that the absent class members do not pay fees that are, in total, unreasonable,” Rubenstein said.
Earlier this year, class counsel asked U.S. District Judge Anita Brody, who is handling the litigation, to approve $112.5 million for attorney fees and costs stemming from the $1 billion settlement intended to compensate about 20,000 former players suffering from concussion-related injuries. The NFL has agreed to pay the money in addition to the money for the class members.
The fee request included a 15.6 percent fee for attorneys representing claimants directly, along with the 5 percent set-aside that would be paid either from attorney fees, if the claimant has individual representation, or from the claimants’ recovery, if they are not represented by an attorney.
When it came to the 15 percent cap, Rubenstein noted that some contingency fees date back to 2011—four years before the settlement was given final approval in 2015—and some agreements are also as high as 45 percent. He further noted that some players have more than one attorney, aggregate attorney fees in class actions are typically less than 15 percent, the case settled following little litigation, and many of the ex-players—most of whom are suffering from cognitive impairments—will receive “relatively small” recoveries.
“A 15 percent [initially retained plaintiff's attorney] fee cap will mean that most represented players pay about 30.6 percent of their recoveries to these two sets of lawyers, plus the IRPA’s expenses,” Rubenstein said. “Given the quantity of litigation that occurred in this case and the size of the settlement, that is a sufficiently fair amount to ensure that counsel will continue to pursue these types of cases.”
Regarding the set-aside fee, Rubenstein said the history of how the 5 percent set-aside was included in the settlement agreement was “troubling in that it implies that class counsel sought to significantly enhance their own fees without significantly enhancing their own work, or most importantly, their clients’ recoveries.” He also said the size of the $112.5 million fee request undercuts the argument that counsel needs to be paid additional money to implement the agreement, and if the amount wasn’t sufficient, class counsel is in the best position to seek more money from the NFL to cover those costs.
Given that the settlement will continue to pay out to claimants over the next 65 years, Rubenstein suggested the court could pay a significant portion of the $112.5 million fees upfront, then stagger the remainder to ensure attorneys continue to be compensated as the claims process continues to be administered.
“Given that class counsel seek a fee award for 100 percent of the class’s recovery now, even though many class members will not get paid for decades, some portion of that fee award should be set aside and paid out over time, to correspond with the implementation work that class counsel will have to do over time,” he said.