NCAA's $75M Concussion Settlement on Hold After Notice Glitches
The final approval of a $75 million concussion settlement with the National Collegiate Athletic Association is on hold until an independent auditor completes its review of a notice program that has apparently been plagued with problems.
August 29, 2018 at 08:06 PM
5 minute read
The final approval of a $75 million concussion settlement with the National Collegiate Athletic Association is on hold until an independent auditor completes its review of a notice program that has apparently been plagued with problems.
The notice issues have delayed final approval of the settlement for a year. Last month, lawyers on both sides asked a federal judge in Chicago for approval to bring in an independent auditor to review the notice program. That report was due this month, with the next status hearing set for Sept. 12.
Gilardi & Co., part of KCC Class Action Services, was the administrator tasked with notifying 4.4 million potential class members about the settlement, which provides medical monitoring funds and injunctive relief to student athletes at risk for brain damage from repeated blows to the head. But according to a declaration filed with the court in February, an internal audit showed that claim notices failed to go out to more than 75,000 persons. Rachel Christman, senior project manager at Gilardi, did not respond to a request for comment.
Lawyers in the case asked the court to hold off on an Aug. 16 final approval hearing until the problems could get fixed.
“Each time, the parties had to request that the court extend the final fairness hearing to allow the student-athlete class members to receive direct notice,” wrote plaintiffs attorney Elizabeth Fegan, a Chicago partner at Hagens Berman Sobol Shapiro, in an email. “Most recently, upon learning of additional class members to which notice had not been sent, we requested an audit to ensure that 100 percent of the class members for which the 1,100 NCAA institutions had provided contact information received direct notice. That process is nearly complete. We expect one additional round of notice and then the final fairness hearing to be scheduled in late 2018.”
NCAA attorney Mark Mester of Latham & Watkins did not respond to a request for comment.
Under the terms of the settlement, the NCAA agreed to provide a $70 million medical monitoring fund for current and former students who had played a variety of sports, plus change the way it handled concussions at its schools.
But U.S. District Judge John Lee of the Northern District of Illinois had concerns about the notice plan from the start. He rejected approval of the settlement in 2014 in part due to a proposed notice plan that relied on the records of NCAA schools to identify potential class members, the majority of whom had graduated more than a decade ago.
But, after some modifications, he preliminarily approved the deal in 2016, setting a final approval hearing for May 5, 2017.
As the hearing approached, Hagens Berman and lawyers for objectors to the settlement were embroiled in a contentious fight over a potential $21 million in legal fees. One of those lawyers, Jay Edelson, previously sparred with Hagens Berman over the strategy behind the settlement, which doesn't compensate student athletes for actual brain injuries. He has since filed class actions against dozens of athletic conferences and schools, plus individual cases, including four brought this month on behalf of football players that allegedly died from concussion-related injuries.
Back in court, Lee rescheduled the final approval hearing for July 27, 2017, after plaintiffs lawyers told him 78 of the nearly 1,100 schools had not provided their student records, according to court documents. He then pushed it to Sept. 22, 2017, then again to Nov. 28, 2017, to send additional notices.
A few weeks before the final approval hearing, lawyers asked for another extension. This time, they said the notice administrator “inadvertently did not mail” postcard notices to 10,000 current and former students at Frostburg State University in Maryland, according to court documents. Lee rescheduled the final approval hearing for March 1.
Then, on Jan. 30, that number grew to include an additional 15,000 students from at least three other schools.
Lee wasn't too pleased, calling the notice process “quite frustrating” at a Feb. 6 hearing.
“I must say it doesn't instill a lot of confidence at the moment in my mind with regard to the way that the notice administrator has gone about its job with regard to providing notice,” he said.
Fegan told the judge, “We certainly share your misgivings.”
A few weeks later, Christman filed a declaration stating that the notice administrator had conducted an internal audit that found numerous computer and human errors. Nearly 75,000 people from 27 schools still hadn't gotten notices.
At the request of the lawyers, Lee rescheduled the final approval hearing for Aug. 16.
“I take it, Ms. Fegan, that I will not see any more motions like this?” he said at a March 3 hearing.
But, on July 2, lawyers filed court papers that 2,700 class members had their notices returned as undeliverable, for whom only some of the notice administrator had updated addresses. They asked Lee to put off the final approval of the deal and approve an independent auditor to review the notice administrator's records in light of its “repeated errors.” They said Gilardi should pay the cost.
Lee approved the request, finding “an independent audit is necessary to evaluate the effectiveness of the direct notice program,” but ordered both sides to foot half the bill.
This month, lawyers brought in consulting firm Monument Economics Group in Arlington, Virginia, as outside auditor. Cynthia Jones, vice president at Monument Economics Group who is overseeing the audit, did not respond to a request for comment.
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