After winning settlement, lawyers fight over their shares of the spoils in NCAA concussion class action

By Dan Churney | Sep 19, 2017

Lawyers are scrimmaging in Chicago federal court over $21 million in fees for handling the nationwide concussion lawsuit against the National Collegiate Athletics Association, which resulted in a $70 million settlement to improve “medical monitoring” of college athletes at risk of brain injuries.

Lawyers Steven W. Berman and Elizabeth A. Fegan, of Hagens Berman Sobol Shapiro LLP, of Seattle and Chicago; Joseph J. Siprut, of Siprut P.C., of Chicago; Richard Lewis, of Hausfeld LLP, of Washington D.C.; and Charles Zimmerman, of Zimmerman Reed, of Minneapolis, filed a motion requesting they receive $15 million for their work on behalf of college athletes, named as plaintiffs in the legal action against the NCAA, as well as a class of additional plaintiffs.

Another group of lawyers in the case, Jay Edelson, Rafey Balabanian, Ari Scharg and Benjamin Thomassen, of the Chicago firm Edelson P.C., also lodged a motion for $6 million in fees, while also arguing the other lawyers should collect no more than $8 million. They represented Anthony Nichols, a plaintiffs’ class member who objected to an initial version of the settlement. Nichols was on the gridiron at San Diego State University from 1989 to 1992.

The fight over fees comes as the end zone approaches in the massive litigation launched against the NCAA in 2011, first in a lawsuit brought by former Eastern Illinois University football player Adrian Arrington, over its alleged mistreatment of college athletes who suffered head injuries while playing football and other NCAA-sanctioned sports.

In 2016, the NCAA and the plaintiffs submitted a proposed settlement to U.S. District Judge John Z. Lee which would end the litigation against the NCAA in exchange for the NCAA’s agreement to spend $70 million to institute a “Medical Monitoring Program” for current and former college athletes, and to institute other “corrective measures” to better address athletes’ health and safety at official NCAA-sanctioned games and events.

As part of the proposal, the NCAA pledged not to object to paying plaintiffs’ attorneys fees of $15 million, and paying class representatives $2,500 to $5,000 each.

In their motion for $15 million, the lead plaintiffs’ attorneys argued their fee request was “reasonable” because they had “performed excellently.”

“Only after the significant labor of prosecution was completed did the NCAA seek to enter settlement negotiations,” the lead attorneys wrote.

In the additional fee request, however, the Edelson-led lawyers argued the benefits of the settlement would have been “largely illusory,” if not for their work on behalf of Nichols.

They said an initial version of the settlement was “hastily reached and ill-considered,” with a proposed monitoring program that Nichols’ lawyers described as “cumbersome and designed to deter participation in the settlement.” Further, this version didn’t provide sufficient safeguards or extensive enough notice to spread the word about the deal to enough former NCAA athletes.

The Edelson lawyers said these changes should equate to attorney fees for them of $10 million or more, but they are only requesting $6 million.

“… At least $50 million, or more than two-thirds, of the settlement’s value can be traced to changes forced by Nichols’s objections,” the Edelson lawyers wrote.

They also asked the judge to award Nichols $5,000.

In a recent filing, the Edelson lawyers further pressed their case.

"It took Class Counsel, aided significantly by Nichols’s prior objections, three tries to craft a Settlement worthy of preliminary approval.

"Despite Class Counsel’s repeated failures at crafting a deal the Court could approve, they nonetheless seek the original $15 million fee that the NCAA agreed to pay without objection, taking full credit for the value created for class members that resulted from the revisions forced upon them as a result of their previous failed agreements," the Edelson side maintained.

Edelson added that wrongly "tucked away" in the proposed settlement is a provision guaranteeing future fees for the lead lawyers, but without oversight of the fees by class members or a judge.

In addition, Edelson alleged lead counsel engaged in "duplicative and unnecessary work," which should further cut the fees they deserve. In particular, Edelson also questioned the Siprut firm's billing procedures.

Edelson further alleged misconduct by lead counsel "jeopardized" settlement negotiations. Instead of $15 million in fees, $8 million would be appropriate for the lead counsel, Edelson argued.

In response, one of the lead attorneys, Steve Berman, salvoed that Edelson was essentially a johnny-come-lately to the suit, arriving after lead counsel had put in more than 10,000 hours fashioning the initial settlement.

Berman further alleged Edelson is claiming Edelson's involvement is worth $6 million, because Edelson included a footnote, in a court paper, mentioning potential for reversion.

"Edelson's footnote is not worth $6 million," Berman noted.

Neither is Nichols deserving of $5,000 as Edelson contends. Rather, Nichols should receive $2,500, because he put forth far less effort than the other plaintiffs.

A status hearing is set for Friday.

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Organizations in this Story

Edelson PC Hagens Berman Sobol Shapiro, LLP Hausfeld, LLP NCAA Siprut PC U.S. District Court for the Northern District of Illinois

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