By Jeff Birren, Senior Writer
Litigation is by its nature a battle. In the usual case, the plaintiff battles the defendant(s) to gain coin of the realm, an injunction, a declaration of rights or perhaps all of that. Occasionally the battle ground shifts, and it evolves into a contest between plaintiff’s various counsel over proceeds, and so it was in one of the offshoots of the NFL Concussion Litigation settlement, (Turner v. NFL (In Re NFL Players’ Concussion Injury Litigation), Case No. 2:12-md-02323-AB, MDL No. 2323, Line Case No. 01585 (11-12-21)).
Background
One of the class members, identified as “No. 950000313, R.S. (‘Player’)” hired the Locks Law Firm in 2012 to represent him in the Concussion Litigation (Id. at 3). The firm filed a short form complaint, arranged for him to undergo neuropsychological testing that March, and supplied the neurologist with his medical records. It later arranged for a brain scan. Locks also “assisted” Player in “his pursuit of benefits under the NFL’s “88 Plan” “that provides former players with funding for medical and custodial care resulting from dementia, Alzheimer’s disease, ALS and/or Parkinson’s disease” (Id. at 4). That led to a successful application for 88 Plan benefits.
After the Concussion Litigation settlement, Locks “promptly registered Player” but it did not immediately submit a claim. It arranged for his records to be reviewed by another specialist. In 2019, the attorney “who principally handled Player’s representation, David Langfitt, left Locks and formed his own firm.” Player went with him to Langfitt’s new firm, and consequently, Locks “filed a Notice of Lien seeking reasonable attorney’s fees and costs for its work on behalf of Player” though at the time “Player did not have a claim actively pending with the Claims Administrator.”
Langfitt scheduled another examination and sent the full medical history to two new experts, leading to a finding that Player “met the criteria for a Level 1.5 Neurocognitive Impairment” (Id. at 5). Langfitt submitted a claim on Player’s behalf, and a Monetary Award was approved in February 2021. The “award was subject to a 75% offset under the terms of the Settlement Agreement due to a medically-diagnosed stroke having occurred prior” to the qualifying diagnosis.
The Claims Administrator withheld 22% of Player’s monetary award for payment of attorney’s fees. This percentage “reflects the presumptive cap on attorney’s fees” imposed by a prior court order in the case. The Claims Administrator also withheld funds for reimbursement of costs “based on assertions made by counsel.”
Locks and Langfitt then began their legal battle. A briefing schedule was set and they “submitted simultaneous Statements of Dispute” on August 25, 2021. In September they submitted Responses. The dispute was sent to U.S. Magistrate Judge David R. Strawbridge. The firms agreed that Judge Strawbridge’s ruling “will constitute the final determination of the district court” (Id. at 3).
The Legal Standards
In the Third Circuit attorneys seeking fee “pursuant to a contract” have the burden of proof to demonstrate that the fee “is reasonable under the circumstances” (Id.at 5). Even if the attorneys present “a presumptively valid fee contract” the Court must decide if the fee “would “result[ ] in such an enrichment at the expense of the client that offends a court’s sense of fundamental fairness and equity’” (Id. at 6). This leads to scrutinizing the reasonableness of the fee at the time the contract was signed; changed circumstances that occurred during the litigation; the result of the case; the quality of the work performed; and how that work contributed to the overall result.
Langfitt sought “the far larger share” of the fees due to its successful work, the “known risks it understood despite a looming stroke, its minimization of costs and its willingness to shepherd through a difficult claim.” Locks advanced $14,000 in expenses but according to Langfitt, Locks “never filed a claim” and Locks “obtained no useful medical records that could contribute to the eventual award.” The Court agreed but concluded “that the work performed by Locks nevertheless warrants a share of the fee derived from Player’s award.”
The Court’s Analysis
It first examined the “reasonableness” of the contingent fee when Player entered the contracts with each firm. That included the legal challenges to his claim, and the “time-intensive nature of the representation.” The Court then compared “the landscape at the time of contracting with the circumstances” when Player ended the Locks relationship.
Locks
Locks began representing Player in January 2012 when it filed his complaint. At “this time” the case “carried substantial risks, as the plaintiffs faced stiff challenges including surmounting the issues of preemption and establishing causation” (Id. at 7). The case was ultimately consolidated with the other concussion cases. Once that happened, “the risk related to the volume of work to be undertaken by any law firm changed dramatically,” i.e., went down. Locks’ “personnel served on important committees, for which the firm was awarded fees from the common benefit fund” but the legal risks “remained substantial” as “high-risk, long-odds litigation.”
Player remained with Locks until September 11, 2019, when he moved to Langfitt Garner. During that time “substantial progress had been made in moving forward the many cases in the class” and the NFL and class entered a settlement that was approved by Judge Brody on April 22, 2015. It was affirmed by the Third Circuit and the Supreme Court denied certiorari (Id.). Consequently, the “risk inherent in the litigation decreased significantly” (Id. at 8).
Langfitt
When Langfitt took over the representation, the “major risks” “had been eliminated.” The challenges were now “specific” to each player’s “evidentiary record.” Among Player’s challenges were that “any other award for which he might qualify would be subjected to a substantial reduction in light of his stroke history.” However, this was developed during the Locks representation and “Langfitt had the benefit of that background knowledge” (Id.). “There were no changes, however, in the circumstances as to risk factors when Langfitt agreed to represent Player.”
The Results Obtained
The claim that “ultimately led to a Monetary Award” was filed by Langfitt. The qualifying diagnosis was made by a doctor on referral from Langfitt.
The Quality of the Work Performed
Locks did not challenge the quality of the work performed by Langfitt, “inasmuch as Langfitt obtained medical records that enabled it to file a claim on Player’s behalf and achieve a favorable award” (Id. at 9.). Conversely, Langfitt challenged the quality of Locks’s work. In response, Locks asserted that the tests it ordered early on ultimately laid the groundwork for the award and Player was certainly “sufficiently satisfied with the presentation he received” so that he moved to Langfitt (who had represented him at Locks.) The Court accepted “that each firm provided quality work.”
The “Substantiality of the Work Performed
The Court thought this was the “more important question.” Langfitt argued that what Locks did was really “limited to registering Player in the Settlement, which it considers a ‘routine administrative task.’” Locks insisted that it “did much to develop background information and explore other diagnoses to the benefit of Player.” Locks sent Player for medical review, gathered, and obtained his medical records. When Langfitt took over, it “knew the existing record would not support a claim” so it arranged for Player to be seen by doctors that did “identify a qualifying impairment” (Id. at 10).
Locks was also “available to Player during the time period in which he had to consider whether to opt out of the class” (Id.). Locks registered “Player in the settlement but did not file a claim on his behalf. Locks “assisted Player with the pursuit of benefits” under the NFL’s 88 Plan. Langfitt filed a claim and has continued to represent Player through receipt of a Monetary Award.” The Court was not aware of either firm reviewing other litigation related to Player’s claim or if either firm provided assistance related to “predatory lending practices” for those seeking loans pending the settlement.
Apportionment
Langfitt opposed awarding Locks anything “more than a de minimis share of the fees” (Id at 11). Langfitt insisted that when it took over the representation, there were “known and serious risks that minimized the likelihood of a significant recovery, given that Player had pre-existing conditions that reduced the compensation available through the Settlement Program.” Locks contended that it “undertook much work during periods of its risk in its more than seven-year representation.” Player “would not have been able to his achieve his success… had Locks not made the contributions it did to understanding Player’s complex history” (Id. at 11).
These “contributions to the understanding of Player’s condition were a necessary component or precursor of the work that Langfitt ultimately utilized.” “We appreciate that it was Langfitt who ultimately saw Player to the finish line in pursuing” the required evaluation” but “from 2012 to 2019, Locks counseled Player to remain in the settlement class, registered him, and obtained medical records and pursued tests and evaluations to narrow the scope of the qualifying diagnosis that might be sought on Player’s behalf. We award Locks a 25% portion of the total attorney fee.”
Costs
Locks sought to recover “expenditures totaling $13,981.48 for postage and delivery fees, copying costs, out of town travel by counsel, and more substantial payments made to various providers for their evaluation of Player or diagnostic tests. Langfitt also seeks reimbursements for the expenditure it made for the evaluations that ultimately led to the successful claim determination.” Langfitt opposed Locks’s request, arguing that “’Locks contributed nothing’ to the ultimately successful claim” and that their costs claim, “represents over 12% of the total award to Player.” Langfitt asked the Court to employ a formula used in a prior costs dispute between the two firms. The Court declined, finding the circumstances “distinguishable” (Id. at 12). The costs here are all legitimate and both “firms are entitled to reimbursement in full for these costs.”
The Court’s Conclusion
Locks’s representation “did not yield a diagnosis that enabled it to file a claim on Player’s behalf before Attorney Langfitt left in 2019” to set up his own firm. Locks “had done nothing to jeopardize Player’s ability to obtain new documentation and file a claim in the future” but that work was done by Langfitt and some “advocacy was still required.” The total fee to be divided “between counsel represents 20% of the Monetary Award, rather than the 22% sought by Locks.” “25% of the fee is allocated to Locks and 75% is allocated to Langfitt.” The “Claims Administrator shall also disburse $13,981.48 to Locks for its costs and $3,937.99 to Langfitt for its costs. Any remaining withheld funds must be disbursed to Player.”
Conclusion
Courts routinely resolve vastly greater disputes than this squabble between counsel. At a distance it appears that personal animosity may be the driving force here. It is strange that Langfitt is so critical of the work done by Locks, when Langfitt was the attorney “who principally handled Player’s representation” at Locks. Some disputes should be resolved out of court. One can hope that the Third Circuit does not have to expend energy on an appeal.
