(Reuters) - The National Football League has been grousing for months about dubious claims in its billion-dollar class action settlement with retired players who blame the NFL for their neurological impairment. The settlement agreement includes an elaborate fraud detection system, in which the independent claims administrator, BrownGreer, audits not only a random sample of 10 percent of all filings but also any claims that contain warning signs of fraud, like a diagnosis by a doctor with a suspiciously heavy caseload of NFL retirees. If BrownGreer concludes there is a reasonable basis to suspect fraud, it refers the questionable claim to two court-appointed special masters, Jo-Ann Verrier and Wendell Pritchett of the University of Pennsylvania Law School, for more investigation and a final determination. But the system has been swamped, at least according to a motion last month by the NFL’s lawyers at Paul Weiss Rifkind Wharton & Garrison.
The NFL contends the claims process has been so besieged by undeserving retirees and their unscrupulous doctors and lawyers that BrownGreer and the special masters need help. Their motion asked U.S. District Judge Anita Brody to appoint a special investigator to issue subpoenas, take testimony and otherwise probe suspicious claims. Right now, the NFL said, the special masters base their findings only on the evidence BrownGreer develops in its audits. A special investigator, its motion argued, can develop additional evidence to ward off “widespread fraud.”
On Monday, Judge Brody issued an order scheduling a May 30 hearing on the NFL’s motion. She’s giving the league a half hour to present its evidence and three plaintiffs’ firms that serve as class counsel – Seeger Weiss, the Locks Firm and Podhurst Orseck – 10 minutes apiece to respond.
It should be quite a hearing. It’s commonplace for defendants in giant cases like the concussion litigation to complain about dubious claims. But it’s rare for courts to entertain defense allegations of widespread post-settlement fraud. It happened in the BP Deepwater Horizon case, which, like the NFL concussion litigation, was settled via a class action. But I’m hard-pressed to think of other examples. The NFL’s motion mentions special masters appointed to investigate Engle progeny suits against tobacco companies in Florida and to probe class counsel’s fee requests in a case against State Street, but those aren’t analogous.
Here, the NFL is claiming that a meaningful percentage of retired players, coached by lawyers and assisted by complicit physicians, exaggerated injuries to inflate claims. The motion claims that BrownGreer has called for audits of 46 percent of the submitted claims because of red flags signaling fraud. The claims administrator, according to the NFL, has already recommended the denial of more than 400 claims (nearly a quarter of those submitted), including all claims filed by one unidentified plaintiffs’ firm.
The motion is rife with troubling anecdotes: the law firm that supposedly told a retired player to take Valium before a neurological exam so he would seem more impaired than he actually is; the pediatric neurologist who allegedly diagnosed Alzheimer’s disease in 75 percent of the NFL retirees he examined, though his patients were as young as 29; the 31-year-old ex-player who said he had moderate dementia but didn’t mention that he was enrolled in an MBA program. The NFL highlighted supposedly questionable conduct by three law firms that represent retirees, though it didn’t name any of them. One firm with more than 100 ex-NFL clients allegedly squeezed doctors to reveal the questions they asked players in order to coach clients on how to respond. Another firm supposedly steered its clients to the aforementioned pediatric neurologist. A third allegedly hosted obliging doctors who examined clients in the firm’s offices.
As the NFL brief admitted, these are just allegations and suspicions based on BrownGreer’s audits. The league claimed that’s why Judge Brody must appoint a special investigator, to cull the allegations and get to the truth.
Interestingly, co-lead class counsel Seeger Weiss does not oppose the NFL’s request, though it does dispute the league’s account of pervasive fraud. Its brief said only 15 percent of the submitted claims are still being audited, and the settlement administrator has only recommended rejection of 16 percent of the already audited filings. So far, Seeger Weiss said, the special masters have not reached a fraud determination against anyone in the case – even the neuropsychologist since barred from the litigation.
The two other plaintiffs’ firms granted time to speak at the May 30 hearing oppose the appointment of a special investigator. Both argue a new layer of review will slow the process of getting money to ex-players with legitimate claims. The NFL countered that a special investigator will actually speed up the process by quickly sorting true wrongdoing from harmless conduct.
NFL counsel Brad Karp of Paul Weiss declined to comment on the upcoming hearing. A spokeswoman for co-lead counsel Chris Seeger of Seeger Weiss sent an email statement: “We have previously expressed concerns about potentially fraudulent claims and agree the appointment of a special investigator is appropriate,” it said. “However, we will not allow this small number of claims to be used as an excuse by the NFL to deny payment to legitimately injured former players.”
Lawyers from the Locks Firm and Podhurst did not respond to my emails requesting comment.