A federal appeals court panel Wednesday weighed whether the district court overseeing the NFL concussion class action settlement may supervise litigation funders in the case.

The U.S. Court of Appeals for the Third Circuit eyed the jurisdiction of trial judges who oversee class action settlement proceeds when claimants have entered into lending agreements. The funders said those contracts are independent of the settlement, and any disputes are subject to arbitration. But lead class counsel said the arrangements are subject to the court's judgment as to how best to implement the settlement.

The three-judge panel heard arguments in a dispute over loans that third-party funders made to ex-NFL players, who are entitled to substantial payouts from the NFL's $1 billion concussion litigation settlement. The argument comes following U.S. District Judge Anita Brody's decision in late 2017 to block all lending agreements made between the third-party funders and the claimants .

An attorney arguing on behalf of the class of former players told the panel that Brody, who approved the class action settlement in 2015, was well within her jurisdiction to make a ruling regarding the class action settlement money, but attorneys for the third-party lenders contended that her jurisdiction does not extend to agreements to contracts drawn up between an outside party and an ex-player. Instead, the companies contended, any disputes about the third-party lending agreements needed to be handled in arbitration.

“You're arguing that the [Federal Arbitration Act] and its provisions are superseding the district court's obligation, as she sees it, to oversee and implement the settlement?” Judge Brooks Smith asked.

Philadelphia-based Fox Rothschild attorney Peter Buckley, who represented the lending company, Thrivest Legal Funding LLC, answered that district judges have broad authority when it comes to the class, but not over a third-party. Thrivest is headquartered in the Philadelphia suburbs.

“What if the claims goes to probate, or there's a divorce settlement, does the district court retain jurisdiction there?” Buckley asked. “The FAA is very clear. Is there an arbitration agreement? Yes. Is the dispute enforceability? Yes. Then it goes to the arbitrator. There's a limiting principal that I think this court needs to adopt. The line is third-parties.”

Buckley contended that, if there was a breach of the settlement agreement, it was due to the ex-player, but, but the way the court ruled, it was his client who would end up being penalized. He further argued that if all of these individual disputes were brought into the class action claims administration process, it would be a drain on those resources, which are mean to compensate class members.

“MDLs and class actions are big enough. They can't go on forever,” he said. “There has to be some boundaries.”

Later in the argument, Smith said Buckley hit on a matter “of great concern” about whether the district court should have the authority to determine how a specific class member uses his or her funds, and Judge Stephanos Bibas said the case raised issues “at the outer bounds of Article III.”

New York University Law professor Samuel Issacharoff, who argued on behalf of the class and an ex-player who received a $500,000 loan, said the question appeared to be one of first impression. According to Issacharoff, the line should be drawn at whether the money has been distributed.

“While the money is in the hands of the district court, pursuant to in rem jurisdiction, the court has authority,” he said.

He also disagreed that the case stretched the court's limits under Article III of the Constitution.

“When there is an express violation of a term negotiated by the parties, that was OK'd by the court then … there's no problems under Article III,”  Issacharoff said.

In December, Brody barred third-party lenders from entering into assignment agreements with retired players, holding that language in the settlement specifically forbade lenders from entering into loan agreements that involved ex-players assigning over their monetary claims.

During the argument session Wednesday, however, the lenders all contended that they had not been given an adequate chance to make their argument that the lending activity bared in the settlement agreement was several steps removed from the ex-player's monetary claims that were subject to the lending agreements.

“There was a decision on the merits without a complaint, without any discovery and without a trial,” Boies Schiller Flexner attorney Michael Roth, who represented RD Legal Funding, LLC, said. Roth is based in Southern California, and RD Legal's headquarters is in New Jersey.

Judge Michael Chagares questioned whether that argument meant class action judges would need to have both parties submit affidavits before making any interpretation of a agreement's language, and Smith asked what the Third Circuit's standard of review should be.

Roth suggested that the court should review the issue de novo.

“The question isn't whether the Eastern District had a reasonable interpretation. It's whether there's another interpretation that's reasonable,” Roth said. “If there is, it's ambiguous and unenforceable.”

New Jersey attorney Raul Sloezen, who represented New Jersey-based Atlas Legal Funding, offered similar arguments, and contended that, if the court had allowed the claims to proceed further, the Third Circuit would have a clearer picture of the issues at stake.

“If we were made a party, and conducted discovery, we could have gotten to these arguments before the district court and would have had a more complete argument before this court,” Sloezen said.