In re Nat'l Football League Players Concussion Injury Litig.

• Decision Date: 24 December 2014
• Docket Number: No. 14–8103.,14–8103.
• Citation: 775 F.3d 570
• Parties: In re NATIONAL FOOTBALL LEAGUE PLAYERS CONCUSSION INJURY LITIGATION. Objecting Class Members: Sean Morey; Alan Faneca; Ben Hamilton ; Robert Royal; Roderick Cartwright; Jeff Rohrer; Sean Considine, Petitioners.
• Court: U.S. Court of Appeals — Third Circuit

775 F.3d 570

In re NATIONAL FOOTBALL LEAGUE PLAYERS CONCUSSION INJURY LITIGATION.

Objecting Class Members: Sean Morey; Alan Faneca; Ben Hamilton ; Robert Royal; Roderick Cartwright; Jeff Rohrer; Sean Considine, Petitioners.

No. 14–8103.

United States Court of Appeals, Third Circuit.

Argued Sept. 10, 2014.

Opinion Filed: Dec. 24, 2014.

Michele D. Hangley, William T. Hangley, Hangley, Aronchick, Seagl, Pudlin & Schiller, Philadelphia, PA, Steven F. Molo, (Argued), Thomas J. Wiegand, Esquire, Martin Totaro, MoloLamken, New York, NY, Eric R. Nitz, Martin Totaro, MoloLamken, Washington, DC, Linda S. Mullenix, Austin, TX, for Petitioners.

Bruce A. Birenboim, (Argued), Brad S. Karp, Theodore V. Wells, Jr., Esquire, Paul, Weiss, Rifkind, Wharton & Garrison, David R. Buchanan, Esquire, Diogenes P. Kekatos, Esquire, Christopher A. Seeger, Esquire, Seeger Weiss, Samuel Issacharoff, (Argued), New York, NY, Beth A. Wilkinson, Paul, Weiss, Rifkind, Wharton & Garrison, Washington, DC, Dana B. Klinges, Duane Morris, David D. Langfitt, Gene Locks, Locks Law Firm, Arnold Levin, Levin, Fishbein, Sedran & Berman, Sol H. Weiss, Anapol Schwartz, Dianne M. Nast, NastLaw, Philadelphia, PA, Steven M. Marks, Mitrani, Rynor, Adamsky & Toland, Weston, FL, Stephen F. Rosenthal, Podhurst Orseck, Miami, FL, for Respondents.

Alan B. Morrison, Scott L. Nelson, Allison M. Zieve, Public Citizen Litigation Group, Washington, DC, Amicus Counsel for Petitioners.

Before: AMBRO, SMITH, and JORDAN, Circuit Judges.

OPINION OF THE COURT

SMITH, Circuit Judge.

Thousands of retired professional football players filed suit against the National Football League and various other defendants alleging primarily that the defendants failed to take reasonable actions to protect players from the risks associated with concussive and sub-concussive head injuries

. The cases were consolidated before the U.S. District Court for the Eastern District of Pennsylvania. On July 7, 2014, the District Court issued an order that “preliminarily approved” a proposed class-action settlement agreement and “conditionally certified for settlement purposes only” the settlement class and subclasses. Petitioners, seven retired professional football players who object to the proposed settlement agreement and class certification, filed a Federal Rule of Civil Procedure 23(f) petition for permission to appeal the District Court's July 7, 2014 order.

At issue in this request for interlocutory review is the nature of this Court's jurisdiction under Rule 23(f). Because the District Court's order was not an “order granting or denying class-action certification” under the plain text of the rule, we have dismissed the petition.¹

I.

Plaintiffs are retired professional football players who played in a member club of the National Football League (“NFL”) and are not seeking active employment as players with any member club. Beginning in July 2011, retired professional football players began filing lawsuits alleging that Defendants NFL and NFL Properties, LLC (collectively “NFL Defendants”) failed to take reasonable actions to protect players from the chronic risks posed by concussive and sub-concussive head injuries

.² In January 2012, after more than 5,000 retired professional football players brought suit, the Judicial Panel on Multidistrict Litigation consolidated and transferred all pending cases to the U.S. District Court for the Eastern District of Pennsylvania for inclusion in coordinated or consolidated pretrial proceedings.

Plaintiffs and the NFL Defendants (collectively “the parties”) negotiated the terms of a settlement during a court-ordered mediation in the summer of 2013.³ Plaintiffs filed their class-action complaint on January 6, 2014 and sought an order: (1) granting preliminary approval of the proposed class-action settlement agreement; (2) conditionally certifying a settlement class and subclasses; (3) appointing co-lead counsel, class counsel, and subclass counsel; (4) approving the dissemination of class notice; (5) scheduling a fairness hearing; and (6) staying claims as to the NFL Defendants and enjoining proposed settlement class members from pursuing related lawsuits. In re Nat'l Football League Players' Concussion Injury Litig., No. 2:12–md–02323–AB, Dkt. 5634 (E.D.Pa Jan. 6, 2014).

On January 14, 2014, the District Court denied the parties' motion without prejudice. The District Court's initial denial was based on its primary concern that “not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid.” In re Nat'l Football League Players' Concussion Injury Litig., 961 F.Supp.2d 708, 715 (E.D.Pa.2014). The District Court reasoned that the proposed $670,000,000 monetary fund may be inadequate to cover the likely amount of the awards to the class members. Id. at 715–16.

The parties renegotiated the proposed class-action settlement and, on June 25, 2014, filed another motion for preliminary approval and conditional certification of a revised settlement agreement. The revised settlement agreement “guaranteed payment of all valid claims” but put in place “additional measures designed to prevent fraudulent claims.” In re Nat'l Football League Players' Concussion Injury Litig., No. 2:12–md–02323–AB, Dkt. 6073–5 at 23–24, 2014 WL 3510049 (E.D.Pa. June 25, 2014).⁴

The parties also proposed that a “nationwide Settlement Class” be “conditionally certified, for settlement purposes only” and include three types of claimants and two subclasses.⁵ Id. Dkt. 6073–1 at 4, 5.

On July 2, 2014, seven retired NFL football players (collectively “Objectors”) filed an objection to the June 25, 2014 revised class-action settlement agreement. Objectors argued that the revised settlement agreement could not be certified under Rule 23 because it bargained away, without adequate representation, the rights of three distinct groups of former players: (1) those suffering from, or displaying symptoms consistent with, chronic traumatic encephalopathy

who did not die before preliminary approval; (2) those who have suffered or are at risk of suffering a stroke or non-football traumatic brain injury ; and (3) those who played in NFL Europe. Additional defects raised by Objectors include that: the proposed notice was false and misleading; the claims process was so onerous and confusing that it raised due process and fairness concerns; the settlement agreement was not the product of arm's length negotiation; and that class counsel conducted no discovery by which to evaluate the strength of the claims and defenses.

On July 7, 2014, the District Court issued an order and memorandum in which the “proposed Class Action Settlement Agreement [was] preliminarily approved” and “[t]he Settlement Class and Subclasses [were] conditionally certified for settlement purposes only.” In re Nat'l Football League Players' Concussion Injury Litig., 301 F.R.D. 191, 197, 204 (E.D.Pa.2014). In the District Court's supporting memorandum, it explained that Rule 23(e)(2) requires court approval of the settlement of a class action. A “Preliminary Approval of the Proposed Settlement” was set forth by the District Court as:

“typically proceed[ing] in two stages. At the first stage, the parties submit the proposed settlement to the court, which must make a preliminary fairness evaluation. If the proposed settlement is preliminarily acceptable, the court then directs that notice be provided to all class members who would be bound by the proposed settlement in order to afford them an opportunity to be heard on, object to, and opt out of the settlement. See Fed.R.Civ.P. 23(c)(3), (e)(1), (e)(5). At the second stage, after class members are notified of the settlement, the court holds a formal fairness hearing where class members may object to the settlement. See Fed.R.Civ.P. 23(e)(1)(B). If the court concludes that the settlement is ‘fair, reasonable and adequate,’ the settlement is given final approval. Fed.R.Civ.P. 23(e)(2). At this time, Plaintiffs request that I grant preliminary approval.”

Id. at 197. After conducting a preliminary review of the settlement agreement, the District Court proceeded to analyze the parties' request for “conditional certification” of the proposed class.

The District Court premised its analysis of “Conditional Certification of the Settlement Class and Subclasses” with the following standard of review:

“A court must determine whether the proposed Settlement Class and Subclasses satisfy the requirements of Federal Rule of Civil Procedure 23. See Sullivan v. DB Invs., Inc., 667 F.3d 273, 296 (3d Cir.2011) (en banc). At the preliminary approval stage, a court may conditionally certify the class for purposes of providing notice, leaving the final certification decision for the subsequent fairness hearing. See Manual for Complex Litigation (Fourth) § 21.632 (2004).”

Id. at 199–200.

For the purposes of effecting the proposed Rule 23(e) settlement process, the District Court appointed co-lead class counsel, class counsel, and subclass counsel, approved the dissemination of class notice, and scheduled a fairness hearing for November 19, 2014. Id. at 204–07. The District Court also stayed any matters as they related to the NFL Defendants and enjoined proposed class members from pursuing any related lawsuits. Id. at 203–204, 207. On July 21, 2014, Objectors filed this petition for leave to appeal from the District Court's July 7, 2014 order.

II.

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1332 and is administering the coordinated or consolidated pretrial proceedings under 28 U.S.C. § 1407. A “party asserting jurisdiction bears the burden of showing that at all stages of the litigation the case is properly before the federal court.” Samuel–Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir.2004). Whether we have jurisdiction under 28 U.S.C. § 1292(e) and Federal Rule of Civil Procedure 23(f) to review “an order granting or denying class-action certification”...