Photo: Flickr user hyku via Wikimedia Commons.

Attorneys from five law firms have asked the court presiding over the consolidated NFL concussion litigation to depose the Harvard professor who recently recommended that fees for attorneys representing individual players be capped at 15 percent.

On Tuesday, attorneys filed two motions with the U.S. District Court for the Eastern District of Pennsylvania, asking the court to reconsider an order it issued last week that barred attorneys from seeking to depose Harvard Law School professor William Rubenstein about his recommendation to limit their attorney fees. The order that U.S. District Judge Anita Brody issued Dec. 11 had changed course from a prior ruling that had said attorneys representing the ex-players would be able to seek to depose Rubenstein after he issued his opinion.

The motion that Philadelphia firm Locks Law Firm filed Tuesday said that the deposition would be aimed at probing “the basis for professor Rubenstein's assumptions and whether his recommendations would change if the assumptions, in whole or in part, were shown to be incorrect,” but the motion filed by Texas attorney Lance Lubel of Lubel Voyles said that allowing attorneys the change to depose Rubenstein was a due process issue.

“Without that process, a deposition and a facts-and-circumstances assessment of a particular fee contract, the cap is a denial of a contracted interest, that is, the benefit of the parties' bargain, without an opportunity to be heard,” Lubel said in the motion, which was joined by attorneys from Washington & Associates, the Canady Law Firm and Provost Umphrey Law Firm—all of which are based in Texas. “For the court to consider professor Rubenstein's report without allowing interested parties to test the methodology, the conflict of interest, or the data will deprive interested parties of their right to participate in this process.”

Lubel's filing also noted that Rubenstein had previously disclosed to the court that he had done some consulting work for attorneys at Anapol Weiss, which is the firm of attorney Sol Weiss, who is co-lead class counsel in the case.

Earlier this year, class counsel asked Brody to approve $112.5 million for attorney fees and costs stemming from the $1 billion settlement intended to compensate about 20,000 former players suffering from concussion-related injuries. The NFL has agreed to pay the money in addition to the money for the class members.

The fee request included a 15.6 percent fee for attorneys representing claimants directly, along with the 5 percent set-aside that would be paid to the common benefit fund either from attorney fees, if the claimant has individual representation, or from the claimants' recovery, if they are not represented by an attorney.

When it came to the 15 percent cap, Rubenstein's 47-page report issued Dec. 11 gave several reasons for why he recommended limiting the fees. The report noted that some contingency fees date back to 2011—four years before the settlement was given final approval in 2015—and some agreements are also as high as 45 percent. He further noted that some players have more than one attorney, aggregate attorney fees in class actions are typically less than 15 percent, the case settled following little litigation, and many of the ex-players—most of whom are suffering from cognitive impairments—will receive “relatively small” recoveries.

Neither Locks nor Lubel returned a call seeking comment.