Will Preemption Cause NFL Concussion Opt-outs to Opt-in Settlement?

The NFL maintains the appropriate forum for dealing with player injuries and concussions should be the Collective Bargaining Agreement grievance process, not litigation. For players that opted out of the NFL Concussion Settlement and are continuing their concussion litigation, a motion to dismiss based on preemption may be back on the table when just last week, a federal judge dismissed the prescription drug lawsuit filed by 1,300 former players (Richard Dent et al. v. NFL) on preemption grounds. In that case, the judge decided that the league addressed serious concerns in a serious way-- by imposing duties on the clubs via collective bargaining and placing a long line of health-and-safety duties on the team owners themselves. He went on to state that these benefits may not have been perfect, but they have been uniform across all clubs and not left to the vagaries of state common law. They are backed up by the enforcement power of the union itself and the players' right to enforce these benefits. This does not bode well for the former players that opted out of the settlement thousands of former players made with the National Football League (NFL) over concussion-related suits last summer. The league is reportedly paying $765 million for medical benefits and injury compensation to retired players, as well as funding medical exams, research and litigation expenses. The settlement has been characterized as avoiding litigating thousands of complex individual claims over many years and providing immediate relief and support. NFL Commissioner Roger Goodell and team owners reportedly wanted to "do the right thing" for former players with neurological conditions who believe their problems stem from on-field concussions. The lawsuits accused the league of hiding known risks of concussions for decades to return players to games and protect its image. For the lawyers who negotiated the proposed settlement of the NFL's massive concussion litigation, the agreement was groundbreaking. For the lawyers whose clients objected to the settlement, it fails to compensate players suffering from the "industrial disease of football," and it allows the league to escape any determination of whether the league concealed the effects of head injuries from its players. Defending the deal, NFL and the players' attorneys insisted they wanted to help suffering players now, emphasizing difficulty in litigating causation between blows to the head and brain damage known as chronic traumatic encephalopathy (CTE) in these football concussion cases. See more here-- http://bit.ly/1x1uRxX and settlement info here-- https://www.nflconcussionsettlement.com

ADR Section comments on ADR Rules & Policy Proposals

The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy is proposing amendments to the Civil Procedure Rules, Family Law Rules, and brand-new Florida Rules for Court-Appointed Alternative Dispute Resolution Neutrals Regarding Alternative Dispute Resolution Processes for which No Other Supreme Court Rules or Standards for Professional Conduct Exist. The Florida Bar ADR Section Executive Council has filed its comments this week in The Florida Supreme Court. Among the comments by the section is a criticism that there is no provision in the proposed rules which mandates that all communications of all "Other ADR Processes" participants are confidential and privileged, as set forth in the Mediation Confidentiality and Privilege Act. There is nothing that provides that decisions, awards, or evaluations are sealed (as are the "awards" in mandatory non-binding arbitration) and may not be considered by the presiding judge in the event that the dispute proceeds to trial. However, apparently the neutral, without agreement of the parties, can impose confidentiality upon the parties. New rule 16.100 (a)(2) states that the neutral upon commencement of an “Other ADR Process” session shall "inform the participants the extent to which communications may be confidential." The concept of an evidentiary "privilege" as to mediation communications, which is not the same as "confidentiality," is nowhere set forth in the proposals, nor do the proposed rules provide for any sanctions which can be imposed upon any party for breaching "confidentiality." In the proposal, “Other ADR Process” is defined as “[A]ny method used to resolve disputes other than litigation for which no other Supreme Court rules or standards of professional conduct exist.” The comment by the section specifically points out that rules 16.010 (b), 12.760 (d)(2), 1.840 (c)(2) incorrectly define a "Neutral" as an "impartial third party who participates in a dispute at the request of the parties or the court in order to help facilitate settlement or resolution of a dispute." The terms "Neutral" and "Impartial" are not one and the same. The term "Impartial" as defined in Rule 11.080 of the Florida Supreme Court Rules for Court-Appointed Arbitrators “means freedom from favoritism or bias in word, action, and appearance." The same definition appears in Rule 10.330 of the Florida Supreme Court Rules for Certified and Court-Appointed mediators. The term "Neutral" means not being predisposed to the resolution or outcome of the ADR process. As such, the proposed rules need to be drafted so as to comport with the existing Court Rules. No word on whether oral argument will be set in this matter. See more information here-- http://www.floridasupremecourt.org/decisions/proposed.shtml#altdispute

BP Settlement Won't Be Undone By S. Ct.

This week, the U.S. Supreme Court denied a petition for certiorari by BP challenging its own 2012 multibillion dollar settlement over the Deepwater Horizon oil spill in the Gulf of Mexico. BP asserted there was fraud in some settlements, while plaintiffs have already been paid over two billion dollars in such claims. BP sought to reopen the lower court-approved settlement it negotiated that allowed the businesses and families impacted to continue to make claims. BP's attempt to halt payments from a settlement fund to reimburse businesses and individuals for losses following the 2010 accident was previously rejected following arguments that the fund administrator had misinterpreted claims and miscalculated payments-- allegedly amounting to fictitious claims. BP maintains decisions made in claims handling exposed the company to losses never contemplated in the settlement. Initially, it was estimated BP would pay roughly $7.8 billion to resolve tens of thousands of claims by businesses and individuals covered by the settlement. The company said it couldn't give a reliable estimate for the total value of the deal, but now believes its liability under the business-claims settlement will exceed $9.7 billion. It is very difficult to reopen a settlement of this type at the appellate level because of extensive negotiation and ultimate approval by BP and its legal team. See new story here-- http://buswk.co/1wXIVJK and ruling here-- http://www.supremecourt.gov/orders/courtorders/120814zor_f2bh.pdf

Cyber-everything

This week featured Cyber Monday and, in case you missed it, last month we had Cyberweek 2014 for "ODR" or online dispute resolution professionals. This interesting virtual conference on the future of alternative dispute resolution was filled with a wealth of webinars, discussion forums and activities. A content rich website, hosted by the ADRhub-Werner Institute at the Creighton University School of Law in Omaha, contains a variety of webinars discussing the integration of technology and dispute resolution. The link below provides access to the activities that took place this year. The organizers encourage visitors to review the entire program to ensure not missing a topic that will meet interests of practitioners considering using technology in dispute resolution processes. Some highlights from the program include presentations entitled: A Panel Discussion on ODR and Ethics, Trends In Conflict Throughout the United States, Technology and ADR, and A Practical Approach to Online Mediation. It seems international mediators are more interested in this form of mediation at this juncture. Travel costs can be incentive enough to mediate online, but the efficiency of the software in being able to access negotiations at the user’s convenience seems to be the main feature touted in this modern method of settling lawsuits. Amounts in controversy will likely drive the ODR process to lower value cases. According to one ODR vendor in the UK, the average duration is one hour in a case that would typically be found in a US county court. Efforts in this area have been around for more than a decade, but I'm still not sure ODR is ready for prime time in larger cases where a human element in decision-making is often intangible without parties participating in person. Archived Cyberweek webinars remain available here-- http://www.adrhub.com/page/cyberweek-2014