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In re National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation

United States District Court, N.D. Illinois, Eastern Division

August 12, 2019

IN RE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION INJURY LITIGATION This Document Relates to All Cases Representative Sport Institution Participation Dates

          David Weisman, Magistrate Judge

          MEMORANDUM OPINION AND ORDER

          JOHN Z. LEE, UNITED STATES DISTRICT JUDGE

         Plaintiffs, who are former collegiate athletes and members of a provisionally certified settlement class, seek final approval of the Second Amended Class Action Settlement Agreement against Defendant National Collegiate Athletic Association (“NCAA”). In addition, Co-Lead Counsel for the Settlement Class and Subclasses and counsel for the objectors have petitioned for fees and service awards. The Court issued an order approving the settlement on a preliminary basis on July 15, 2016, and, after an extensive program to provide notice to putative class members, held a final fairness hearing on February 25, 2019. For the reasons provided below, the Court certifies the Settlement Class and Subclasses and grants the motion for final approval of the Second Amended Class Action Settlement Agreement (“Settlement Agreement”). The various petitions for fees and service awards are granted in part and denied in part.

         I. Background and Procedural History[1]

         Adrian Arrington, who played football for Eastern Illinois University, brought a putative class action against the NCAA for breach of contract, negligence, fraudulent concealment, unjust enrichment, and medical monitoring based on the way the NCAA handled student-athlete concussions and concussion-related risks. See Corrected Am. Compl., Arrington v. NCAA, No. 1:11-cv-06356 (N.D. Ill. 2011), ECF No. 25. After substantial discovery, the parties in Arrington began settlement discussions with the assistance of retired United States District Judge Layn Phillips. At the same time, dozens of similar putative nationwide class actions were filed throughout the country.[2] The Multidistrict Litigation Panel consolidated the nationwide class actions for pretrial proceedings in this Court. MDL Panel Transfer Order of 12/18/13, ECF No. 1.[3] The Court then appointed Co-Lead Counsel, Special Class Counsel for Medical Monitoring Relief, an Executive Committee, and Liaison Counsel for Plaintiffs, as well as Lead and Liaison Counsel for the NCAA. Case Management Order (“CMO”) No. 3, ECF No. 76.

         After extensive, arms-length negotiations, the parties reached a settlement agreement, and a number of the Plaintiffs submitted the settlement agreement to the Court for approval under Fed.R.Civ.P. 23(e). Anthony Nichols, a former San Diego State University football player and the named Plaintiff in Nichols v. NCAA, 1:14-cv-00962 (N.D. Ill. 2014), opposed the settlement on various grounds. See Nichols's Resp. Pls.' Mot. Preliminary Approval of Class Settlement, ECF No. 83.

         The Court declined to approve the settlement agreement on December 17, 2014, raising a number of concerns. See Mem. Op. & Order, Dec. 17, 2014, ECF No. 115. To address those concerns, Plaintiffs continued to negotiate with the NCAA directly and in numerous mediation sessions and telephone conferences facilitated by retired United States District Judge Wayne Andersen. As part of this process, Plaintiffs also expanded the group of class representatives to include student-athletes, who played non-contact sports at NCAA-affiliated schools, to obtain their participation in the settlement process. Plaintiffs and the NCAA eventually agreed on an amended settlement agreement in February 2014, and Plaintiffs filed a Fourth Amended Class Action Complaint and a motion for preliminary approval of the amended class settlement agreement. See Joint Mot. Prelim. Approval Class Settlement, ECF No. 154 (“Mot. Prelim. Approval”); 4th Am. Compl., ECF No. 171.

         Certain of the Plaintiffs were unhappy with the amended settlement. And the Court appointed Nichols as Lead Objector and permitted him to file objections to the amended settlement agreement. The Court also allowed Arrington, then represented by different counsel, to submit his objections. Minute Entry of 8/18/15, ECF No. 206.

         Nichols's primary objection was to a provision in the amended settlement agreement requiring settling class members to release their right to pursue any personal-injury claims on a class-wide basis. See Nichols 1st Objections, ECF No. 183; Nichols 2nd Objections, ECF No. 201. According to Nichols, this procedural right was extremely valuable and outweighed any benefits that the settlement provided to class members. Nichols 2nd Objections at 2. Arrington echoed Nichols's concerns, emphasizing that the settlement did not provide monetary compensation for injuries. Arrington Resp. ¶¶ 11-13, ECF No. 236. To evaluate these contentions, the Court permitted the parties to submit supplemental briefs using the extensive factual record that had been developed in the Arrington case.

         After considering the materials submitted by the parties, the Court preliminarily certified the settlement class under Fed.R.Civ.P. 23(b)(2) and found that the amended settlement was within the range of possible approval. See In re Nat'l Collegiate Athl. Ass'n Student-Athlete Concussion Injury Litig., 314 F.R.D. at 608. However, the Court conditioned this preliminary approval on several conditions. Among them, the Court required that Plaintiffs and the NCAA provide the class members with notice (including direct notice) and an opportunity to opt out of the settlement. The Court also limited the release of class-wide personal-injury claims to those instances where a plaintiff or claimant sought a nationwide class or where the proposed class consisted of student-athletes from more than one NCAA-affiliated school or more than one NCAA-sanctioned sport.[4] Another modification amended the way in which certain settlement funds were to be utilized. The parties agreed to the Court's suggested modifications.

         Notice was provided via direct mail, email, internet and print advertising campaigns, and a website created for the settlement, http://www.collegeathleteconcussionsettlement.com. See Christman Decl. ¶ 3, ECF No. 530. As part of the Notice Program, the Notice Program Administrator mailed 3, 886, 369 postcards and sent 1, 948, 656 emails to settlement class members. Id. 326, 291 postcards were returned as undeliverable, and the Notice Program Administrator searched various databases for updated addresses and re-mailed 202, 637 of them. Id. In this way, direct notice was sent to 3, 958, 305 unique settlement class members.

         Other methods were employed to reach settlement class members who may not have received a postcard or email. Id. n.4. For example, inserts were included in USA Today and Sports Illustrated. Vasquez Decl. ¶¶ 13-21, ECF No. 530-3. In addition, banner advertising, text link advertising, and tweets were targeted to likely settlement class members via Facebook.com, Google Display Network, Twitter, and other internet media outlets. Id. A national press release also was distributed. Id. And class members were directed to a toll-free number and website dedicated to the settlement of the class action. Id. The robustness of the notice program is evidenced by the fact that approximately 1, 884 individual class members have exercised their right to opt out of the settlement class. Christman Decl. ¶ 6.

         The Settling Plaintiffs now move for final certification of the Settlement Class and Subclasses and approval of the Settlement Agreement. See Joint Mot. Preliminary Approval 2d Am. Class Settlement and Certification Settlement Class and Settlement Subclasses, ECF No. 467; see 2d Am. Class Action Settlement Agreement & Release (“2d Am. SA”), ECF No. 266-1.

         II. The Settlement

         A. Settlement Class and Subclasses

         The Settlement Class is defined as: “All Persons who played an NCAA-sanctioned sport at an NCAA member institution on or prior to the Preliminary Approval Date.” 2d Am. SA ¶ III.A. The Settlement Class Representatives are:

Representative
Sport
Institution
Participation Dates
Derek Owens
Football
University of Central Arkansas
2008-11
Angelica Palacios
Soccer
Ouachita Baptist University
2010-11
Kyle Solomon
Hockey
University of Maine
2008-10
Abram Robert Wolf
Football
Simpson College
2012-16
Sean Sweeney
Wrestling
Buena Vista College
1991-93
Jim O'Connor
Football
Drake University
1971-74
Dan Ahern
Football
North Carolina State University
1972-76
Paul Morgan
Football
Vanderbilt University
1994-97
Jeffery Caldwell
Football
Georgia Tech University
1995-98
John DuRocher
Football
University of Oregon; University of Washington
2003-06
Sharron Washington
Football
University of Missouri
1987-91
Shelby Williams
Golf
Northwest Missouri State University
2015
Brice Sheeder
Track & Field
Simpson College
2015
Shavaughne Desecki
Softball
DePaul University
2003
Spencer Trautmann
Baseball
Western Oregon University
2015
Ryan Parks
Baseball
University of Illinois
2002
Ursula Kunhardt
Volleyball
Montana State University
2011-12
Jessica Miller
Volleyball
Seattle-Pacific University
2015
Anna Bartz
Track & Field
University of Wisconsin
2007
Peter Dykstra
Track & Field
University of Wisconsin
2006
DaChe Williams
Basketball
Northeastern University
2015
Rachel Harada
Soccer
Rockhurst University
2015
Natalie Harada
Soccer
Maryville University
2015
Adam Walker
Golf
Simpson College
2009-10

Id. ¶ II.F.

         The Contact Sport Settlement Subclass is defined as “All Persons who played an NCAA-sanctioned Contact Sport at an NCAA member institution on or prior to the Preliminary Approval Date.” Id. ¶ III.A. “Contact sports” include football, lacrosse, wrestling, ice hockey, field hockey, soccer, and basketball. Id. ¶ II.I. Class representatives for the Contact Sports Subclass are: Derek Owens (football), Angelica Palacios (soccer), Kyle Solomon (hockey), Rachel Harada (soccer), Natalie Harada (soccer), and DaChe Williams (basketball). Id. ¶ II.G.

         The Non-Contact Sport Settlement Subclass is defined as “All Persons who played an NCAA-sanctioned non-Contact Sport at an NCAA member institution on or prior to the Preliminary Approval Date.” Id. ¶ III.A. “Non-Contact sports” include all NCAA-sanctioned sports that are not included in the definition of “Contact Sports.” Class representatives for the Non-Contact Sports Subclass are: Shelby Williams (golf), Brice Sheeder (track & field), Shavaughne Desecki (softball), Spencer Trautmann (baseball), Ryan Parks (baseball), Ursula Kunhardt (volleyball), Jessica Miller (volleyball), Adam Walker (golf), Anna Bartz (track & field), and Peter Dykstra (track & field). Id. ¶ II.H.

         Each of the Settlement Class Representatives has played an NCAA sport during a time when the NCAA's concussion management and return-to-play guidelines purportedly failed to meet consensus best practice standards. And each is at risk for developing future symptoms related to concussions and/or the accumulation of subconcussive hits. See, e.g., 4th Am. Compl. ¶¶ 29, 46, 60, 67, 76, 83, 91, 99, 106, 114, 118, 122, 126, 132, 138, 146, 151.

         B. The Second Amended Class Action Settlement[5]

         1. Medical Monitoring Program

         The NCAA will pay $70 million to create a Medical Monitoring Fund (the “Fund”) in an interest-bearing account. 2d Am. SA ¶ IV(A)(1)(a). The Fund will be used to pay the expenses associated with the Medical Monitoring Program (“Monitoring Program” or “Program”), including: Screening Questionnaire Costs; Medical Evaluations; Notice and Administrative Costs; Medical Science Committee Costs; approved Attorneys' Fees and Costs; and Class Representatives' Service Awards. Id. ¶ IV(A)(1)(b). The Fund will be administered by a Program Administrator, an independent professional service company approved by the Court. Id. ¶ IV.A.2; id. ¶ II.NN; id. ¶ VI.A.

         The Monitoring Program will last for a period of fifty years. Id. ¶ II.X. If the funding for the Program is depleted before the expiration of the fifty-year period, the Settlement Class Members may pursue individual and class claims seeking medical monitoring, and the statute of limitations will be tolled during the fifty-year Medical Monitoring Period. Id. ¶ IV(A)(5). In addition, during the first ten years, the NCAA will provide $5 million in additional funds for concussion-related research that it otherwise would not have funded absent the settlement. Id. ¶ X.A.

         The Monitoring Program itself contemplates two different assessment phases: screening and evaluation. In the screening phase, class members (or someone acting on their behalf) may seek an analysis of their symptoms by completing a Screening Questionnaire, in hard copy form or online, once every five years until age fifty and then not more than once every two years after the age of fifty. Id. ¶ IV.B.4; id. ¶ IV.B.4.g; Committee Report at 1-35, ECF No. 159. Their scores on the Screening Questionnaire will determine whether they qualify for a Medical Evaluation. 2d Am. SA ¶ IV.B.4.e.; Committee Report at 1-35.

         The standard for determining whether a Class Member qualifies for a Medical Evaluation is established by the Medical Science Committee (“Medical Committee” or “Committee”). 2d Am. SA ¶ IV.B.4.a-d; Committee Report at 1-35. The Committee consists of four medical experts, who have expertise in the diagnosis, care, and management of sports-related concussions and mid- to late-life neurodegenerative disease: Dr. Brian Hainline, Dr. Robert Cantu, Dr. Ruben Echemendia, and Dr. Robert Stern. 2d Am. SA ¶ V.A.1. The Committee will be chaired by Special Master and retired United States District Judge Wayne Andersen. Id. Any future member of the Committee will be appointed jointly by the parties subject to Court approval. Id.

         Once the Committee receives a class member's response to the Screening Questionnaire, the class member will be notified within thirty days whether he or she qualifies for a Medical Evaluation and will be instructed on where and how to obtain one. Id. ¶ IV.B.4.i. A Medical Evaluation will be performed at one of thirty-three program sites located throughout the country.[6]Id. ¶ IV.B.1.a.

         The Medical Committee will determine the precise scope of the Medical Evaluations, which will be designed to assess symptoms related to persistent post-concussion syndrome, as well as cognitive, mood, behavioral, and motor problems associated with mid- to late-life onset diseases, such as Chronic Traumatic Encephalopathy (“CTE”) and other disorders. Id. ¶ IV.B.5.c; Committee Report at 36-38. The Committee also will review annually, and amend as needed, the Screening Questionnaire and the Medical Evaluations to reflect the then-current standard of care; oversee the performance of the Program Locations; and recommend how research funds should be expended.[7] 2d Am. SA ¶ IV.B.5.c. Furthermore, the Committee will provide annual reports to the Court, allowing the Court to retain oversight of the Program. Id.

         Class Members may qualify for up to two Medical Evaluations during the Medical Monitoring Period and may seek a third by submitting a request to the Committee. Id. ¶ IV.B.4.h. The Medical Evaluations will be submitted to a physician, who will provide a diagnosis as well as the results of the Evaluation to the class member or his or her personal physician, within sixty days of the Medical Evaluation. Id. ¶ IV.B.5.d.

         Neither the Program Administrator nor the Program Locations will seek subrogation or reimbursement from the class member, his or her private health insurance, Medicare, Medicaid, or any other payor or administrator. Id. ¶ IV.B.5.g. Moreover, a class member who qualifies for a Medical Evaluation will never be required to make a claim on his or her health insurance policy to receive or qualify for the benefits of the Settlement. Id.

         So that class members are aware of the Program throughout the fifty-year period, a reminder notice will be sent to them ten years after the effective date of this settlement.[8] Id. ¶ XI.3. And public relations campaigns publicizing the Monitoring Program will be performed every ten years during the fifty-year period. Id.

         2. Changes to NCAA Policies

         In addition to the Monitoring Program, the NCAA has agreed to continue implementing changes to its concussion management and return-to-play policies to be consistent with consensus best practices. Cantu Report ¶¶ 47-48, 53, 57, 60, 65, 70, 74, ECF No. 69. First, as part of the settlement, the NCAA has already instituted a policy requiring all student-athletes to undergo preseason baseline testing prior to the first practice or competition. 2d Am. SA ¶ IX.A.1. Second, the NCAA has revised its return-to-play guidelines to provide that an NCAA student-athlete who has been “diagnosed with a concussion will be prohibited from returning to play or participation in any practice or game on the same [d]ay on which he or she sustained such concussion” and “must be cleared by a physician before being permitted to return to play in practice or competition.” Id. ¶¶ IX.A.2-3. Third, medical personnel, who are trained in the diagnosis, treatment, and management of concussions, will be present at all Contact Sports games and made available during all Contact Sports practices for Division I, II, and III schools. Id. ¶¶ IX.A.4-5. Fourth, before every athletic season, NCAA member institutions will provide NCAA-approved concussion education and training to all student-athletes, coaches, and athletic trainers. Id. ¶ IX.F. Fifth, at the beginning of each academic year, member institutions will provide NCAA-supplied educational material to all academic faculty regarding available academic accommodations for NCAA student-athletes who have sustained concussions. Id. ¶ IX.E.

         To ensure that NCAA member institutions comply with these policies, each member institution must certify in writing, within six months after the effective date of the settlement, that it has implemented a concussion management plan that meets the above requirements. Id. ¶ IX.B. The certification must be provided to the Special Master, Class Counsel, and the Notice Administrator, and it will be posted on the settlement website created and maintained by the Notice Administrator. Id. If an NCAA member institution does not submit the written certification, it will not be able to enforce the release of claims contained in the Settlement Agreement. Id.

         To track the adherence of member institutions to these policies, the NCAA will create a uniform process by which member institutions will be required to report student-athlete concussions and their resolutions. Id. ¶ IX.C. In addition, the NCAA will create a reporting mechanism through which third parties, such as NCAA student-athletes or their parents, will be able to report concerns about concussion management issues directly to the NCAA. Id. ¶ IX.D.

         3. Release of Certain Claims

         As consideration for the terms outlined above, class members agree as part of the settlement to release any and all past, present, and future claims “seeking damages for medical monitoring, or other legal or equitable relief for medical monitoring, related to concussions or sub-concussive hits or contact . . . with respect to any conduct, acts, omissions, facts, matters, transactions or oral or written statements or occurrences on or prior to the Preliminary Approval Date arising from or relating to concussions or sub-concussive hits or contact sustained during participation in NCAA-sanctioned sports as an NCAA student-athlete.” Id. ¶ II.RR; see Id. ¶ XV.A.7. In addition, class members agree to release any and all claims “brought or pursued on a class-wide basis (other than claims pursued on behalf of a class of persons who allege personal injuries or bodily injuries resulting from their participation in a single NCAA-sanctioned sport at a single-NCAA member school, and relating to concussions or sub-concussive hits or contact), including but not limited to tort claims, claims for breach of contract, breach of statutory duties, actual or constructive fraud, negligence, conspiracy, misrepresentation, fraudulent inducement, fraudulent concealment, breach of fiduciary duty, compensatory and punitive damages, injunctive or declaratory relief.” Id. ¶ II.RR. Significantly, class members retain the right to bring (1) “individual personal or bodily injury claims”; (2) “personal or bodily injury class claims brought on behalf of a class of persons who allege injury resulting from their participation in a single NCAA-sanctioned sport at a single-NCAA member school”; as well as (3) “class claims that do not relate in any way to medical monitoring or medical treatment of concussions or sub-concussive hits or contact.” Id.

         The release of claims benefits “the NCAA, its member institutions (past and present), its current and former officers, directors, employees, insurers, attorneys and agents.” Id. ¶ II.SS. But see Id. ¶ IX.B (discussed above). Additionally, the NCAA has agreed to toll the statute of limitations for all personal-injury claims from September 12, 2011, the date the Arrington action was filed, through the date of the Court's final approval of the settlement. Id. ¶ XXI.S.

         4. Fees and Awards

         The Settling Plaintiffs and the NCAA state that the issue of attorneys' fees was deferred until after an agreement on all other material terms had been reached. Since that time, the NCAA has agreed not to oppose a request for an award of attorneys' fees up to $15 million and out-of-pocket expenses up to $750, 000. Id. ¶ XVII.B. In addition, because counsel will have a continuing obligation to implement the terms of the settlement throughout the Monitoring Period, the NCAA has agreed not to object to applications from Co-Lead Counsel and one member of the Plaintiffs' Executive Committee for additional attorneys' fees, at a rate not to exceed $400.00 per hour, to a maximum of $500, 000, for work performed after the first year from the effective date of Settlement. Id. ¶ XVII.C. These requests are subject to the Court's approval.

         The Settling Plaintiffs have applied to the Court for reasonable service awards for the Class Representatives, which will be paid from the Fund. The NCAA has agreed not to object to Service Awards in the amount of $5, 000 for Class Representatives Owens, Palacios, and Solomon, who all were deposed in the Arrington case, and $2, 500 for each Settlement Class Representative who was not deposed. Id. ¶ XVII.A.

         Legal Standard

         “Federal Rule of Civil Procedure 23(e) requires court approval of any settlement that effects the dismissal of a class action.” Reynolds v. Beneficial Nat'l Bank, 288 F.3d 277, 279 (7th Cir. 2002). Approval requires final certification of the class for settlement and a finding that the settlement is “fair, reasonable, and adequate.” See Fed. R. Civ. P. 23(e); Wong v. Accretive Health, Inc., 773 F.3d 859, 862 (7th Cir. 2014).

         Analysis

         I. Settlement Class Certification

         The Settlement Class and Subclasses seek certification under Rule 23(b)(2). The Subclasses consist of the Contact Sport Settlement Subclass and the Non-Contact Sport Settlement Subclass. Excluded from the Settlement Class and Subclasses are: (a) the NCAA and its officers and directors; (b) Class Counsel; (c) the Special Master; and (d) the judges who have presided over this litigation. 2d Am. SA ¶ III.A.

         “A district court may certify a case for class-action treatment only if it satisfies the four requirements of Federal Rule of Civil Procedure 23(a)-numerosity, commonality, typicality, and adequacy of representation-and one of the conditions of Rule 23(b).”[9] Id. at 493. Under Rule 23(b)(2), a class may be certified for injunctive relief if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2).

         A. Rule 23(a)

         1. Numerosity

         Numerosity is satisfied where “it's reasonable to believe [the class is] large enough to make joinder impracticable and thus justify a class action suit.” Arnold Chapman & Paldo Sign & Display Co. v. Wagner Equities, Inc., 747 F.3d 489, 492 (7th Cir. 2014). Generally speaking, classes of forty or more members are sufficiently numerous to warrant certification. See, e.g., Pruitt v. City of Chi., 472 F.3d 925, 926-27 (7th Cir. 2007).

         The Court finds the Settlement Class and Subclasses satisfy the numerosity requirement under Rule 23(a). The approximately four million members of the Settlement Class and Subclasses are sufficiently numerous such that joinder would be impracticable.

         2. Commonality

         Commonality requires “questions of law or fact common to the class.” Fed R. Civ. P. 23(a)(2). A question is common to the class if it generates a common answer, such that determination of the question will “resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The common questions “need not address every aspect of the plaintiffs' claims, ” but they “must ‘drive the resolution of the litigation.'” Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 553 (7th Cir. 2016) (quoting Dukes, 564 U.S. at 350). For purposes of Rule 23(a)(2), “[e]ven a single [common] question” will suffice. Dukes, 564 U.S. at 359.

         The Settlement Class and Subclasses meet the commonality requirement. Whether the NCAA had a duty to protect student-athletes from concussion-related risks, breached that duty, and fraudulently concealed the risks are issues central to the litigation and raise questions of law and fact ...


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