A litigation funder that aims to enforce lending agreements with retired NFL players wants to see a penalty flag thrown against the district court that is overseeing the concussion class action settlement, arguing it is not following the U.S. Court of Appeals for the Third Circuit's guidance by allowing the funding agreements to be broadly invalidated.

Thrivest, an Ardmore, Pennsylvania-based lending company, filed a petition for a writ of mandamus with the Third Circuit last week, saying the district court and class action claims administrator are not following the appeals court's April ruling, which prevented the nullification of lending agreements in their entirety.

According to the 13-page petition, which was docketed with the Third Circuit on Sept. 20, the court and claims administrator in the U.S. District Court for the Eastern District of Pennsylvania are continuing to improperly void agreements. Thrivest also said confusion had been sown among the former players who took out loans.

"These court-sponsored communications are likely to influence class members to ignore their contractual promises or to take on additional risk in arbitration, and, as such, they are likely to cause irreparable injury—in the form of additional financial obligations under the agreement and legal fees associated with the ever-protracting dispute (which are recoverable under the agreement)," Thrivest said in the petition, which Fox Rothschild attorney Peter Buckley filed.

By Monday afternoon, the Third Circuit issued an order saying U.S. District Judge Anita Brody of the Eastern District of Pennsylvania, who is overseeing the settlement, must respond to the petition by Oct. 4. The three-judge panel that issued the order is the same panel that made the April ruling.

Thrivest's petition comes as the lending company is seeking to hold two former players in contempt for failing to escrow interim arbitration awards stemming from loans the ex-players took out. In one case, player Toby Wright was ordered to put $800,000 in his attorney's escrow account, and in the other case William White was ordered to put $1.25 million into escrow.

Court papers said Wright's case stemmed from a nearly $324,000 advance, and White's case involves a $500,000 advance. Wright, according to court papers, received a $1.9 million award, and White received a $3.5 million award.

The writ to the Third Circuit comes nearly two years after Brody barred third-party litigation funders from entering into assignment agreements with retired players, who are seeking to recover from the concussion litigation settlement, which is anticipated to cost $1 billion. Brody specifically pointed to language in the settlement agreement that forbids lenders from entering into loan agreements that require ex-players to assign over their monetary claims.

"A third-party funder that failed to perform proper due diligence before deciding to enter such an agreement is prohibited from now reaping the benefit of the contract," Brody said.

A unanimous three-judge Third Circuit panel, however, disagreed, saying the order "went beyond pure issues of settling administration to adjudicate the third-party contract rights of litigation funding companies."

"The district court's authority certainly does not extend to how class members choose to use their settlement proceeds after they are disbursed. The district court made no findings indicating that any aspects of the cash advance agreements, other than assignments, impaired the integrity of the settlement process," Judge D. Brooks Smith said in the 34-page opinion.

According to the panel, the lower court had broad authority to protect the integrity of the settlement and was therefore within its power to bar portions of any agreements that allowed the companies to seek funds directly from the claims administrator. However, the Third Circuit panel said the district court went too far in voiding the contracts entirely, and said the court did not have the authority to void contracts in which the companies sought to seek funds from the players directly.

Smith also said that, although contracts seeking money from the class administrator are void, the companies could try to enforce contracts it has directly with the players, and disputes over enforceability, including a particular claim involving Thrivest, could proceed through the courts or arbitration.

However, according to Thrivest's petition, the claims administrator made no significant changes to the review procedure in the wake of the Third Circuit's ruling, and was continuing to allow agreements to be nullified in their entirety.

"The claims administrator continues to consider criteria such as 'the fairness and commercial reasonableness of the [agreement's] terms and whether they reflect the type of transaction the court found invalid in its explanation and order,'" the memo said. "Such criteria have nothing to do with whether a contractual provision is a 'true assignment,' as this court defined that concept."

The writ asks the Third Circuit to order the lower court to stop allowing "transaction-level determination[s]" about the validity of the lending agreements, require the claims administrator and court to only consider whether the loans were " true assignment[s]," and issue "corrective communication" making it clear that the court and claims administrator cannot void the agreements entirely.

Brad Karp of Paul, Weiss, Rifkind, Wharton & Garrison is representing the NFL, and Seeger Weiss attorney Christopher Seeger is class counsel. Neither returned a message seeking comment. Buckley declined to comment beyond the filing.