Posted July 19th, 2021.
By Zachary Zagger
Law360 (July 19, 2021, 9:26 PM EDT) — A Pennsylvania federal magistrate judge has issued a gag order telling the NFL, concussion class counsel Chris Seeger of Seeger Weiss LLP and former players’ attorneys from Zuckerman Spaeder LLP not to discuss the status of mediation on ending the controversial use of race-based norms in cognitive testing in the NFL’s concussion settlement.
U.S. Magistrate Judge David Strawbridge issued the short order late Friday, telling the parties “not to discuss with persons not authorized to participate in the mediation either proposed settlement terms or the status of negotiations while the mediation discussions are ongoing.”
The sides are currently hashing out the implementation of new settlement standards for assessing claims for payouts from the uncapped settlement fund, after the NFL and Seeger, who negotiated the agreement for the class of former players, agreed to end the use of racial norms.
Race-norming is a type of statistical manipulation used in neuropsychological testing, in which Black players are assumed to start out with lower baseline cognitive functioning than white players. The NFL has said the race norms were initially used in neuropsychology to stop bias in testing, but critics allege that its use in the settlement makes it more difficult for Black players to show the necessary cognitive decline to receive settlement payouts.
ABC News reported on Sunday that the gag order was issued as the NFL was preparing comments to the news organization on the status of the negotiations. In that report, U.S. Sen. Ron Wyden, D-Ore., told ABC News that after receiving his own update from the NFL late last month, the league needs to disclose how many players were denied settlement claims because of race-norming.
Judge Strawbridge said on June 11 that a preliminary agreement is expected by the end of the summer and that a panel of neuropsychologists had a July 15 deadline to provide a “white paper” with proposed new testing methodologies. However, it was not clear on Monday whether that report was presented.
Confidentiality of mediations is a standard principle in litigation, though it is expected that any final agreement, if reached, would be published, said Andrew Melzer, co-chair of the wage and hour practice group at Sanford Heisler Sharp LLP. Melzer, who is not involved in the concussion settlement, co-authored an expert commentary piece published by Law360 last week noting the value of transparency in the settlement process and the reversal of the use of race-norming once attention was brought to the issue.
“This isn’t really just a private matter between the people in the room,” Melzer told Law360 on Monday. “It does involve a large class and the interest of the public. It is a very public issue that affects a lot of people. So we would expect that once a deal is reached that it would be made public and go through the court approval process under Rule 23(e)” for approving class action settlements, under the Federal Rules of Civil Procedure.
The NFL and Seeger last month pledged to end the use of race-norming in the settlement process nearly a year after two former Pittsburgh Steelers players, Kevin Henry and Najeh Davenport, filed a civil rights lawsuit alleging that race-norming unlawfully discriminated against Black former players. Only last month were those players formally allowed to join the talks to develop new standards to assess concussion claims.
Meanwhile, former player Amon Gordon, who has suggested that his initially approved settlement payout may have ultimately been denied after race norms were applied, has yet to receive a full explanation for why his claim was rejected.
A Third Circuit panel is considering Gordon’s bid for further explanation, but it will do so without oral arguments, canceling them just weeks ahead of the scheduled date last month.
Henry and Davenport are represented by Cyril V. Smith, Aitan D. Goelman and Ezra B. Marcus of Zuckerman Spaeder LLP, Edward S. Stone of Edward Stone Law PC and J.R. Wyatt of J.R. Wyatt Law PLLC.
The concussion settlement class is represented by Christopher Seeger of Seeger Weiss LLP.
The NFL is represented by Brad Karp, Bruce Birenboim, Claudia Hammerman and Lynn B. Bayard of Paul Weiss Rifkind Wharton & Garrison LLP.
The cases are In re: National Football League Players’ Concussion Injury Litigation, case number 2:12-md-02323, in the U.S. District Court for the Eastern District of Pennsylvania.
–Editing by Steven Edelstone.