Court Explains Why NFL Appeal Is Premature

     PHILADELPHIA (CN) – The 3rd Circuit explained on Christmas Eve why it would not entertain an objection to the approval of an uncapped brain-injury settlement for former professional football players.
     More than five months have passed since U.S. District Judge Anita Brody of the Eastern District of Pennsylvania granted provisional class status to thousands of players who allegedly suffer from or are at risk for concussion-borne degenerative diseases because of their NFL careers.
     Seven retired players objected to the proposed uncapped settlement and class certification, but the 3rd Circuit refused on Sept. 11 to let these defectors file an interim appeal.
     On Dec. 24, a divided three-judge panel of the federal appeals court finally explained why, saying that jurisdiction is simply not available under Rule 23(f) of the Federal Rules of Civil Procedure.
     At issue is the fact that Judge Brody preliminarily approved the settlement class under 23(e) of the rather than 23(c), thereby not allowing review by an appellate court under Rule 23(f), according to the 49-page ruling.
     “There can be no application of hydraulic pressure where that has been no application of force at all,” Judge Brooks Smith wrote for the majority. “Here, NFL defendants elected to negotiate a settlement agreement. The District Court’s ‘preliminary determination’ regarding class certification did not so pressure NFL defendants that they were forced to settle the pending lawsuits.”
     Thomas Ambro wrote in dissent that 23(f) would indeed allow for appellate review in this case, although he would still reject it because granting the petition would “result in inefficient (indeed, chaotic) piecemeal legislation.” (Parentheses in original.)
     Judge Brody held a hearing in November to consider objections to the settlement, which focused on its exclusion of players suffering from illnesses not covered in the agreement and what they claim is a Byzantine process to make a claim.

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