As litigation funder Thrivest Specialty Funding LLC continues to challenge the way the judge overseeing the NFL concussion settlement has handled lending agreements with ex-players, the court has issued a notice defending its actions.

The court also called on the company administering the anticipated $1 billion settlement fund to review the communications it has been sending out regarding these outside financing agreements.

U.S. District Senior Judge Anita Brody of the Eastern District of Pennsylvania issued a three-page notice Sept. 27, saying that despite a recent petition to the U.S. Court of Appeals to the Third Circuit over claims that she is not following the appellate court's recent guidance on the issue, the court has been properly handling the third-party financing agreements between lenders and former players.

However, Brody also asked claims administrator BrownGreer PLC to revise the guidance it has been providing about the agreements.

"To avoid any possibility for confusion, the court directs the claims administrator to review its guidance and rules regarding third-party funder agreements and propose a streamlined and concise version that is more user-friendly," Brody said.

The notice was filed a week after Thrivest, an Ardmore, Pennsylvania-based lending company, filed a petition for a writ of mandamus with the Third Circuit last week.  Thrivest said the district court and claims administrator are not following a ruling that the appeals court entered in April, which prevented the nullification of lending agreements in their entirety.

The 13-page petition, which was docketed with the Third Circuit on Sept. 20, asked the appeals court to order the district court to stop allowing "transaction-level determination[s]" about the validity of the lending agreements, and said communications BrownGreer has sent out about the issues has sown confusion 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 Sept. 23, the Third Circuit issued an order saying opposing parties 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.

Brody's notice from Sept. 27 disputed the lending company's assessment, and said "The court and claims administrator have followed the Third Circuit's holding."

"The import of the Third Circuit decision is clear: The court has the authority to prohibit the claims administrator from paying third-party funders directly from the settlement fund, but the overall enforceability of any third-party funder agreements must be litigated or arbitrated outside of the claims administration context," Brody said.

Read the notice:

The filing provides an indication of how opposing parties are likely to respond to Thrivest's petition, as the parties have not yet responded directly to the petition before the Third Circuit. The Third Circuit panel on Sept. 27 gave opposing parties until Oct. 11 to respond, and gave Thrivest until Oct. 16 to file a reply.

Although the respondent in the latest action before the Third Circuit is Brody, class counsel Christopher Seeger of Seeger Weiss and Orran Brown, a principal at BrownGreer, said they will be acting on Brody's behalf, with Seeger and several attorneys from his firm entering appearances.

The move led to questions Sept. 27 by some attorneys involved in the concussion litigation. But in an emailed statement, Seeger said he is not representing Brody in her individual capacity, and entering his appearance "creates no attorney-client relationship between any party to the appeal and the judge herself."

"A mandamus is a challenge to the authority of a court to act, and a party who defends the authority of the court in the matter is technically a respondent on behalf of the court," Seeger said.

Attorney Kevin Marino of Marino, Tortorella & Boyle, who focuses on federal appeals and is not involved in the NFL litigation, agreed the move should not raise any concerns.

"It's not really that they're representing the judge," Marino said. "It's just that they're opposing the request to compel the judge to do something beyond what she had done."

Regarding Thrivest's latest fight before the Third Circuit, Seeger said he will continue to push to have the funding agreements invalidated.

"For funding companies that maintain the cash advances they provided are not assignments, we will argue that those agreements are not enforceable, particularly as many former NFL players are cognitively impaired and lacked the capacity to enter these contracts," he said.

Buckley declined to comment.