For years, we have been watching the progress of the NFL concussion lawsuit, a landmark case that rocked the sports world. Now, the $1 billion settlement with retired NFL players is also raising questions about judicial power in regulating contracts between MDL plaintiffs and legal funding companies.
As an article in Reuters points out, there are many ways these companies can advance cash to plaintiffs who are expecting payouts in personal injury cases — recourse and non-recourse advances being two examples. No matter what a plaintiff chooses, the funding deal occurs outside the case as a private agreement between the funding company and the plaintiff.
“The industry was once almost entirely unregulated, but that’s changing,” the article notes. Several states have enacted laws regulating the advancing of cash to plaintiffs in one way or another. The federal Consumer Financial Protection Bureau has claimed authority over these companies and filed suits against two litigation finance businesses last year.
One of those suits involves New Jersey funder RD Legal, which has argued the Bureau should not have the power to regulate its transactions. Some of RD Legal’s clients are part of the NFL concussion lawsuit, to whom an RD subsidiary advanced a collective $1.63 million in exchange for rights to $3.43 million of the settlement recovery they expect to receive.
The NFL plaintiffs’ lawyers filed an amicus brief in the case against RD Legal, arguing that the funding company’s transactions with the plaintiffs breached a provision of the settlement agreement that prohibits plaintiffs from assigning an interest in their claims to outside funders. The provision was explicitly intended to stop litigation financiers from taking advantage of the retired players who suffer from cognitive injuries.
However, RD claims it has not violated the settlement agreement. The company says it did not acquire an interest in plaintiffs’ claims, but instead purchased an interest in plaintiffs’ settlement “proceeds,” which were not specifically addressed in the settlement agreement provision.
Reuters notes that of the MDLs currently on the federal court docket, the NFL concussion litigation will be the first to determine if MDL judges have the power to block third-party funders from making deals with individual plaintiffs. No doubt, this situation and others to come will continue the national debate over whether these agreements should be capped or otherwise controlled by our legislatures.
About John Bair
John Bair has guided thousands of plaintiffs through the settlement process. Motivated by a desire to assist others in protecting their financial well-being, John and his wife Amy established the Bairs Foundation. At seven percent simple interest, the organization provides the financial assistance families need during litigation. Read more at http://www.bairsfoundation.org/.
A West Point graduate where he served as captain and military aviator, John Bair continues his commitment to our country through his efforts within the settlement planning industry. He has represented families of victims lost in the Flight 3407 crash, offered pro bono services to the families of 9/11 victims and drafted the first consumer protection bill for plaintiffs (H.R. 3699).