When US District Judge Anita Brody rejected the proposed settlement of the National Football League players concussion class action lawsuit in January, she did so because there was an insufficient record in front of her regarding the potential future claims in comparison to the size of the settlement fund being established:
I am primarily concerned that not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid. 6 The Settlement fixes the size of the Monetary Award Fund. It also fixes the Monetary Award level for each Qualifying Diagnosis, subject to a variety of offsets. In various hypothetical scenarios, the Monetary Award Fund may lack the necessary funds to pay Monetary Awards for Qualifying Diagnoses. More specifically, the Settlement contemplates a $675 million Monetary Award Fund with a 65-year lifespan for a Settlement Class of approximately 20,000 people. Retired NFL Football Players with a Qualifying Diagnosis of Parkinson's Disease, for example, are eligible for a maximum award of $3.5 million; those with a Qualifying Diagnosis of ALS may receive up to $5 million. Even if only 10 percent of Retired NFL Football Players eventually receive a Qualifying Diagnosis, it is difficult to see how the Monetary Award Fund would have the funds available over its lifespan to pay all claimants at these significant award levels.
The parties are responsible for supplementing the record to provide the court with the information needed to evaluate the fairness or adequacy of a proposed settlement.
In re Nat'l Football League Players' Concussion Injury Litig. (E.D. Pa., 2014) .
Judge Brody needed actuarial analysis — the kind which would tell an insurance company if it was establishing a big enough reserve to fund claims which would develop to maturity over the next 65 years. Apparently the parties had used actuaries in reaching the mediated settlement, but that evidence was not submitted to the court when approval for the class action settlement was sought.
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