NFL Players Concussion Injury Litigation v.

• Court: Court of Appeals for the Third Circuit
• Decided: October 27, 2023
• Docket: 22-2381
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 22-2381

In re: NATIONAL FOOTBALL LEAGUE PLAYERS’ CONCUSSION INJURY LITIGATION

*Thrivest Specialty Funding, LLC n/k/a Balanced Bridge Funding LLC, Appellant

*(Pursuant to Rule 12(a), Fed. R. App. P.) _______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 2-12-md-02323) U.S. District Judge: Honorable Anita B. Brody _______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) On March 31, 2023

Before: MATEY, FREEMAN, and FUENTES, Circuit Judges

(Filed: October 27, 2023) _______________

OPINION* _______________

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. FUENTES, Circuit Judge.

In the latest postscript to this settled multidistrict litigation, Appellant Thrivest

Specialty Funding, LLC (“Thrivest”) argues that the District Court is improperly

administering the settlement in a manner adverse to its interests. Because we lack

appellate jurisdiction, we will dismiss Thrivest’s appeal.

I. Factual Background and Procedural History

Seven years ago, we affirmed the approval of a global settlement resolving claims

that the National Football League (“NFL”) failed to protect its players from risks

associated with repeated concussions (the “Settlement Agreement”).1 The Settlement

Agreement permits each retired NFL player with a qualifying neurocognitive or

neuromuscular diagnosis to register with the claims administrator and receive

compensation of up to $5 million.2 It also contains an anti-assignment clause providing

that any attempt by a class member to assign his rights in the settlement “will be void,

invalid, and of no force and effect.”3

While waiting to receive their awards, several class members contracted with

Thrivest and other third parties for an immediate cash advance, in exchange for a partial

assignment of the settlement proceeds.4 Exercising its ancillary jurisdiction to enforce

1 See generally In re Nat’l Football League Players Concussion Inj. Litig., 821 F.3d 410 (3d Cir. 2016). 2 Id. at 423–25. 3 See In re Nat’l Football League Players Concussion Inj. Litig., 923 F.3d 96, 109 (3d Cir. 2019) (“NFL 2019”). 4 Id. at 101–02.

2 the Settlement Agreement, the District Court held these agreements void under the anti-

assignment clause.5 We reversed in part. We held that the District Court correctly held

that “true assignments”—those authorizing funders to seek money directly from the

claims administrator—were void.6 But we determined that the District Court exceeded

its authority to administer the settlement when it “purported to . . . void contractual

provisions that went only to a lender’s right to receive funds after the player acquired

them.”7 We took no position on the enforceability of any individual agreement, a matter

which we emphasized must be “litigated or arbitrated in the appropriate fora.”8

After further litigation on remand, the claims administrator established the

operative Rules Governing Payment of Claims Involving Third-Party Funders (the

“Funder Rules”) in March 2020. As relevant here, the Funder Rules provide that

(1) whenever there is a third-party funding agreement, settlement awards will be paid

directly to class members—not to the class members’ lawyers; (2) the payment of an

award “has no bearing whatsoever” on the class member’s potential obligations to a third

party; and (3) any dispute between a class member and a third-party funder with respect

to the disposition of settlement proceeds “must be litigated or arbitrated in an appropriate

forum outside of the claims administration context.”9

5 See In re Nat’l Football League Players Concussion Inj. Litig., No. 12-2323, 2017 WL 8785717, at *1 (E.D. Pa. Dec. 8, 2017). 6 NFL 2019, 923 F.3d at 110. 7 Id. at 113 (emphasis added). 8 Id. 9 JA 788.

3 Thrivest’s attempts to collect from certain class members have proved

challenging. In at least two instances, a class member contracted for a cash advance from

Thrivest, received a direct settlement payout, and dissipated the proceeds without

repaying Thrivest. Frustrated with its inability to collect, Thrivest moved the District

Court to revise the Funder Rules to eliminate direct payments to class members. The

District Court denied the motion in July 2022, holding that the current process fully

complies with our prior decisions, and that third-party funders must continue to litigate

their individual claims outside the claims administration process.

Thrivest now appeals.

II. Appellate Jurisdiction

Neither party disputes appellate jurisdiction, but we must examine it sua sponte.10

Thrivest asserts jurisdiction under 28 U.S.C. § 1291, which permits appeal of “all final

decisions of the district courts.” But the District Court’s denial of Thrivest’s motion to

revise the Funder Rules is not a “final decision,” and so we lack authority to review it.

Orders related to the administration of a settlement necessarily come after a final

judgment, and so are “not traditional ‘final’ orders under 28 U.S.C. § 1291.”11 Still, the

collateral order doctrine permits review of post-settlement orders that are “(1) conclusive,

(2) resolve important questions completely separate from the merits, and (3) would

10 In re Flat Glass Antitrust Litig., 288 F.3d 83, 88 n.5 (3d Cir. 2002). 11 NFL 2019, 923 F.3d at 106.

4 render such important questions effectively unreviewable on appeal from final judgment

in the underlying action.”12

In an earlier appeal, we held that we lacked jurisdiction to review an order much

like the one challenged here. We explained that an order instructing the claims

administrator to “disburse settlement proceeds directly to qualifying class members who

had entered into assignment agreements” neither substantively resolved a dispute nor

otherwise raised important issues.13 Instead, this “purely administrative” order to

“distribute funds in a particular way” presented “little for an appellate court to review,

and [was] inappropriate for review under the narrow collateral order doctrine.”14 We also

observed that “[m]any postjudgment orders will involve ministerial or discretionary

matters that are effectively unreviewable.”15

Thrivest now again challenges the direct payments to class members, and we again

lack jurisdiction to review the District Court’s discretionary order. Thrivest’s two

arguments confirm that its present appeal is indistinguishable from the prior appeal

dismissed for lack of jurisdiction.

12 Id. 13 Id. at 103, 106–07. 14 Id. at 106–107. By contrast, we exercised jurisdiction over the District Court’s order voiding all assignments because it conclusively resolved a substantive issue—the validity of the assignments—and involved an important issue bearing on “freedom of contract and the authority of the District Court.” Id. at 106. 15 Id. at 107 (citation omitted).

5 First, Thrivest claims that the direct payments required by the Funder Rules

amount to a substantive ruling that all third-party cash agreements are invalid, in

violation of our prior holding that the District Court lacked authority to make that

determination. But that is patently incorrect—the Funder Rules unambiguously state that

they have “no bearing whatsoever” on a class member’s potential obligations to a third

party and that any dispute on that subject “must be litigated or arbitrated in an appropriate

forum outside of the claims administration context.”16 The Rules simply distribute funds

in a particular way: directly to class members instead of through counsel. Once an award

is distributed, Thrivest remains free to pursue a collection action.

Second, Thrivest complains about the practical effect of the Funders Rules,

variously arguing that it “de facto encourage[es]” class members to skirt their obligations

under the cash advance agreements and has created burdensome litigation in the ensuing

collection actions.17 Put differently, it does not like the “particular way” the claims

administrator is distributing funds to class members and would prefer a different

method.18 We lack jurisdiction to entertain such an appeal.19

16 JA 788. 17 Appellant’s Br. at 25–30. 18 Cf. NFL 2019, 923 F.3d at 107. 19 Thrivest relies on our prior order denying its petition for a writ of mandamus, which instructed that further concerns about the settlement administration should be raised by motion with the District Court and then, if necessary, appealed in due course. See In re Thrivest Specialty Funding, LLC, No. 19-3149 (3d Cir. Oct. 31, 2019). But that order did not purport to guarantee appellate jurisdiction over a future appeal involving non- substantive issues.

6 III. Conclusion

For these reasons, we will dismiss Thrivest’s appeal for lack of appellate

jurisdiction.

7 FREEMAN, Circuit Judge, dissenting.

I respectfully disagree with the majority’s conclusion that we lack jurisdiction

over this appeal. Exercising this Court’s jurisdiction would not change the practical

outcome for the parties, as I would address the merits and affirm the District Court’s

post-judgment order. Nonetheless, our Court has a “virtually unflagging obligation” to

exercise the jurisdiction given to it, even when the appellant’s argument proves

unavailing. Mata v. Lynch, 576 U.S. 143, 150 (2015) (quoting Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). Because I believe we

have jurisdiction under the collateral order doctrine, I respectfully dissent.

I

This appeal challenges a post-judgment order regarding the administration of a

class settlement between the NFL and over 20,000 retired football players. Thrivest

moved the District Court to revise the rules governing payment of claims involving third-

party funders. It argued that the District Court failed to administer the Settlement

Agreement properly and consistent with our prior mandate. The District Court disagreed

and denied the motion. The majority concludes that we lack jurisdiction to review the

District Court’s order under the collateral order doctrine. I disagree. Although the

collateral order doctrine is “narrow and modest,” New Jersey, Dep’t of Treasury, Div. of

Inv. v. Fuld, 604 F.3d 816, 819 (3d Cir. 2010) (internal quotation marks and citation

omitted), in my view the District Court’s order falls within the doctrine’s scope.

The “collateral order doctrine permits review of post-settlement orders that are

‘(1) conclusive, (2) resolve important questions completely separate from the merits, and (3) would render such important questions effectively unreviewable on appeal from final

judgment in the underlying action.’” Maj. Op. at 5 (quoting In re Nat’l Football League

Players’ Concussion Inj. Litig. (“NFL 2019”), 923 F.3d 96, 106 (3d Cir. 2019)). The

District Court’s order satisfies each of these factors.

First, there are “no additional steps for the District Court to take” in denying

Thrivest’s motion, so the order is conclusive. NFL 2019, 923 F.3d at 106; see also 15B

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3916 (2d ed.

2023 update) (“Appeal should be available whenever the trial court has finally disposed

of the question, and there are no pending proceedings raising related questions.”).

Second, the order resolves an important issue apart from the merits of the

underlying class action. It resolves Thrivest’s argument that the District Court failed to

administer the Settlement Agreement properly and within the scope of its authority under

this Court’s ruling in NFL 2019. Order and Explanation, JA 2–3 (explaining that NFL

2019 does not support Thrivest’s argument and that the Funder Rules fall within the

District Court’s authority to administer the Settlement Agreement until funds are

disbursed). Whether a court exceeds its authority is a “substantive issue” we deemed

important when applying the collateral order doctrine in NFL 2019. 923 F.3d at 106; see

also U.S. Fid. & Guar. Co. v. Arch Ins. Co., 578 F.3d 45, 56 (1st Cir. 2009) (recognizing

that “a challenge to a court’s authority to act” is an important question). And here the

answer to that question has the potential to impact thousands of class members.

Third, the issue resolved by the order would be otherwise unreviewable. This is a

post-judgment order in a class action whose final judgment has already been appealed

2 and affirmed, and this order could not be appealed with any future “final order.” 923

F.3d at 106. So all three requirements are satisfied, and we have jurisdiction.

The majority relies on NFL 2019 to reach the opposite conclusion. There, we

considered our jurisdiction over two post-judgment orders in the NFL class action: (1) a

December 2017 order that voided class members’ assignment agreements in their entirety

and (2) a February 2018 order that directed the Claims Administrator to disburse funds

consistent with the 2017 order. NFL 2019, 923 F.3d at 105. We applied the collateral

order doctrine and exercised jurisdiction over the December 2017 order but not the

February 2018 order. Id. at 105–07.

The majority concludes that the order at issue in this appeal is analogous to the

February 2018 order that we lacked jurisdiction to review in NFL 2019. Maj. Op. at 5–7.

But consider what each order in NFL 2019 did. “[T]he District Court’s December 8,

2017 order resolved the substantive issues related to assignment agreements, and the

February 20, 2018 order was merely a ministerial order designed to effectuate the Court’s

prior order.” NFL 2019, 923 F.3d at 107. We lacked jurisdiction over the February 2018

order because it merely gave effect to the December 2017 order. The December 2017

order, on the other hand, resolved the substantive question of the voidability of class

members’ assignment agreements. It implicated the “freedom of contract and the

authority of the District Court,” id. at 106, so we reviewed it under the collateral order

doctrine.

The order at issue here does not simply effectuate a prior decision; it denies

Thrivest’s substantive arguments that the Funder Rules are improper. As the majority

3 acknowledges, the order also resolves Thrivest’s argument that the District Court lacks

authority to administer the Settlement Agreement pursuant to the Funder Rules. Maj. Op.

at 6 (“Thrivest claims that the direct payments required by the Funder Rules amount to a

substantive ruling that all third-party cash agreements are invalid, in violation of our prior

holding that the District Court lacked authority to make that determination”). The

majority and I agree that this is a losing argument. See id. But the strength of an

argument should not be conflated with its substance. See Mata, 576 U.S. at 150 (“The

jurisdictional question . . . is of course distinct from the merits question.”). The order

Thrivest seeks to appeal—like the December 2017 order that we reviewed in NFL

2019—resolves the substantive and important question of whether the District Court

exceeded its authority. I would reach the merits under the collateral order doctrine.

II

Upon exercising this Court’s jurisdiction, I would affirm the District Court’s

order. Thrivest raises two arguments, each of which is unavailing.

First, Thrivest argues that the payment structure in the Funder Rules does not

“comport with this Court’s prior guidance” in NFL 2019. Appellant Br. at 30; see also

id. at 23–27. That is not so. In NFL 2019, we held that the District Court’s power over

the settlement funds and the class ends after funds are distributed to a class member. 923

F.3d at 112. But we also held that “the District Court retain[s] broad authority to

administer the settlement,” id. at 107, and we did not prescribe the manner in which

monetary awards are to be distributed. Accordingly, the District Court’s order is

consistent with our 2019 mandate.

4 Second, Thrivest argues that the Funder Rules “prejudice [its] ability to enforce its

[cash advance] agreements.” Appellant Br. at 2. But in NFL 2019 we held that the

“District Court’s authority certainly does not extend to how class members choose to use

their settlement proceeds after they are disbursed.” 923 F.3d at 111. The District Court,

therefore, properly declined to revise the Funder Rules based on the interests of third-

party funders in receiving post-disbursement settlement proceeds.

* * *

In sum, I believe the Court has jurisdiction over this appeal. I would reach the

merits and affirm.