Petitions for Deviation from Fee Cap

181. What is a Petition for Deviation from the fee cap?


On April 5, 2018, the Court entered an Order adopting a cap on attorneys’ fees of 22% of an Award, subject to a common benefit holdback, plus reasonable costs. Under the terms of the Order, either a Settlement Class Member or a lawyer may file a Petition for Deviation from the fee cap asking the Court to grant a downward or upward deviation from the fee cap due to exceptional or unique circumstances. 

182. Will the attorney’s fees be reduced to pay for common benefit attorneys?


The Settlement Agreement allows for a holdback of up to 5% of a Settlement Class Member’s Award, payable to the Attorneys’ Fees Qualified Settlement Fund, which was established to pay for past and future class benefit work. The Court has not yet determined the percentage that will be used for the common benefit fund but has determined that, whatever the percentage, if the Settlement Class Member is or was represented in the Settlement Program, any necessary deduction will come from the amount paid to individually retained attorneys. The Claims Administrator will continue to set aside 5% of each Award until the Court makes a further determination.



183. Where can I get a copy of the Rules Governing Petitions for Deviation from the Fee Cap?


The Court entered an October 10, 2018 Order adopting the Amended Rules Governing Petitions for Deviation from the Fee Cap (as originally adopted on May 3, 2018), which you can find on the official settlement website at www.NFLConcussionSettlement.com under the Documents menu option, Governing Rules. Click here to view the Rules Governing Petitions for Deviation from the Fee Cap. 

184. Who are the Parties involved in a Petition for Deviation from the fee cap? 


The Parties involved in a Petition for Deviation are the Petitioner and the Respondent. The Petitioner is either the Settlement Class Member or the lawyer who files the Petition. The Respondent is either the Settlement Class Member or the lawyer who responds to the Petition. Either Party may be represented by counsel. The Claims Administrator is not a Party to the proceedings. 

185. Can a party to an Attorney's Lien Dispute file a Petition for Deviation?


Yes. Either the Settlement Class Member or the attorney lienholder may file a Petition for Deviation. A Settlement Class Member is not required to file a Petition for Deviation to dispute an Attorney's Lien. 



186. How will a Petition for Deviation be resolved if there is also an Attorney's Lien asserted against the Settlement Class Member?


If either party to an Attorney's Lien Dispute files a Petition for Deviation, the Petition will be resolved in the Attorney's Lien dispute resolution process. The timing of and requirements for document submissions are governed by the Schedule of Document Submissions issued by the Claims Administrator for the Attorney's Lien Dispute. The Claims Administrator will include the Petition in the Record for the Attorney's Lien Dispute to be considered by the Magistrate Judge. Disputes over the amount of an Attorney's Lien must be resolved by agreement between the Settlement Class Member and the lawyer or through the Attorneys' Liens dispute resolution process. FAQs about the dispute resolution process are located in the "Liens - Information for Settlement Class Members" and "Liens - Information for Lienholders" sections of the FAQs. 



187. Who determines whether to grant a Petition for Deviation from the fee cap?


After a Petition for Deviation is filed with the Court, the Claims Administrator will withhold an appropriate amount from the Settlement Class Member’s award, to the extent funds are available, and refer the Petition to the Magistrate Judge. The Parties may consent to have the Magistrate Judge enter a final decision as to the resolution of the Petition. If consent is not given by both Parties, the Magistrate Judge will prepare a Report and Recommendation based on the information in the Petition Record and any testimony and documents properly presented at a hearing, if one is granted. The District Judge will enter a final decision based on the Report and Recommendation from the Magistrate Judge and any objections from the Parties. If both Parties consent, the Magistrate Judge’s decision will be the final decision of the United States District Court of the Eastern District of Pennsylvania. 

188. Where do I file a Petition for Deviation from the fee cap?


You must file a Petition for Deviation in the United States District Court for the Eastern District of Pennsylvania, Case No.:  2:12-md-02323-AB. A Petition for Deviation served on the Claims Administrator or filed with any other court is not effective in the Settlement Program and will not be considered by the Court. 

189. What is the deadline for filing a Petition for Deviation from the fee cap?


A Petition for Deviation can be filed by either a Settlement Class Member or a lawyer. The filing deadlines vary based on the circumstances. 

(a) A Settlement Class Member or a lawyer who currently represents the Settlement Class Member must file a Petition for Deviation no later than (1) 40 days after the date of the Notice of Monetary Award Claim Determination or Notice of Derivative Claimant Award Determination, or (2) 10 days after the date of the Post-Appeal Notice of Monetary Award Claim Determination or any post-appeal Notice of Derivative Claimant Award Determination, whichever is later. 

(b) A lawyer who no longer represents the Settlement Class Member at the time he or she files a Petition for Deviation must file the Petition no later than 10 days after the filing of a Notice of Attorney’s Lien in the Court. The Court will not consider Petitions filed by a former lawyer if the lawyer has not asserted an Attorney’s Lien. 


190. How do I serve documents related to a Petition for Deviation from the fee cap? 


After filing a Petition for Deviation in the Court, all documents required to be served on the Claims Administrator must be served by one of the following methods: 

(a) Email to ClaimsAdministrator@NFLConcussionSettlement.com, by a secured and encrypted method and include “Petition for Deviation” in the subject line; 

(b) Facsimile to (804) 521-7299, ATTN: Petition for Deviation; 

(c) Mail to NFL Concussion Settlement, Claims Administrator, P.O. Box 25369, Richmond, VA  23260, ATTN: Petition for Deviation; or 

(d) Delivery by overnight carrier to NFL Concussion Settlement, c/o BrownGreer PLC, 250 Rocketts Way, Richmond, VA  23231, ATTN: Petition for Deviation. 


191. What information must be included in a Petition for Deviation from the fee cap?


The Petition for Deviation must include: 

(a) The extent of the deviation sought; 

(b) A brief statement of the exceptional or unique circumstances for which the Court should allow a deviation from the fee cap; 

(c) The payment terms in the original contingency fee agreement as understood by the Petitioner; and 

(d) A statement declaring under penalty of perjury that the Petitioner has informed the Respondent, or his or her lawyer, if represented, that the Petition for Deviation is being filed with the Court and that the Petitioner has served the Respondent with a copy of the Petition. 

Personal information such as a Social Security Number, Taxpayer Identification Number, or Foreign Identification Number MUST NOT be included in the Petition for Deviation filed with the Court, pursuant to the Local Rules of Civil Procedure for the Eastern District of Pennsylvania, Rule 5.1.3. 


192. What is a Memorandum in Support and when is it due? 


A Memorandum in Support is the information served on the Claims Administrator by the Petitioner in support of the Petition for Deviation. The Petitioner must serve the Memorandum in Support on the Claims Administrator within 30 days after the date of the Petition. The Claims Administrator will serve the Respondent with the Memorandum in Support. 

193. What information must be included in a Memorandum in Support?


If the Petitioner is a lawyer, his or her Memorandum in Support must include: 

(a) A copy of the lawyer’s retainer agreement signed by the Settlement Class Member and any modifications to that agreement; 

(b) The extent of the deviation sought; 

(c) A chronology of the tasks performed by the lawyer, the date each task was performed, and the time spent on each task; 

(d) A list of costs with a brief explanation of the purpose of incurring these costs and the date the costs were incurred; 

(e) A statement of the total number of clients that he or she has represented in the Settlement Program; 

(f) Any exhibits; and 

(g) A statement signed by the Petitioner declaring under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information submitted in the Memorandum in Support is true and accurate to the best of that Party’s knowledge and that the Petitioner understands that false statements made in connection with this process may result in fines, sanctions, and/or any other remedy available by law. 

If the Petitioner is a Settlement Class Member, his or her Memorandum in Support must include: 

(a) The retainer agreement with the lawyer, and any modifications to that agreement, if the Settlement Class Member has copies; 

(b) The extent of the deviation sought; 

(c) Any information the Settlement Class Member believes would be useful to the Magistrate Judge about the work performed by the lawyer and any details regarding the Settlement Class Member’s interactions with the lawyer; 

(d) Any documents or exhibits the Settlement Class Member wants the Magistrate Judge to consider; and 

(e) A statement signed by the Petitioner declaring under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information submitted in the Memorandum in Support is true and accurate to the best of that Party’s knowledge and that the Petitioner understands that false statements made in connection with this process may result in fines, sanctions, and/or any other remedy available by law. 


194. What is a Response Memorandum and when is it due?


A Response Memorandum is the information served on the Claims Administrator by the Respondent. The Respondent must serve the Response Memorandum on the Claims Administrator within 30 days after the date the Claims Administrator serves the Memorandum in Support. The Claims Administrator will serve the Petitioner with the Response Memorandum.

195. What information must be included in a Response Memorandum? 


Any request for a hearing by the Respondent must be made in the Response Memorandum.

If the Respondent is a lawyer, his or her Response Memorandum must include: 

(a) A copy of the lawyer’s retainer agreement signed by the Settlement Class Member, and any modifications to that agreement, if not provided by the Petitioner; 

(b) A chronology of the tasks performed by the lawyer, the date each task was performed, and the time spent on each task; 

(c) A list of costs with a brief explanation of the purpose of incurring these costs and the date the costs were incurred; 

(d) A statement of the total number of clients that he or she has represented in the Settlement Program; 

(e) Any exhibits; and 

(f) A statement signed by the Respondent declaring under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information submitted in the Response Memorandum is true and accurate to the best of that Party’s knowledge and that the Respondent understands that false statements made in connection with this process may result in fines, sanctions, and/or any other remedy available by law. 

If the Respondent is an unrepresented Settlement Class Member, his or her Response Memorandum must include: 

(a) Any information regarding the retainer agreement with the lawyer, or any modifications to that agreement; 

(b) Any information the Settlement Class Member believes would be useful to the Magistrate Judge about the work performed by the lawyer and any details regarding the Settlement Class Member’s interactions with the lawyer; 

(c) Any documents or exhibits the Settlement Class Member wants the Magistrate Judge to consider; and 

(d) A statement signed by the Settlement Class Member declaring under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information submitted in the Response Memorandum is true and accurate to the best of the Settlement Class Member's knowledge and that the Settlement Class Member understands that false statements made in connection with this process may result in fines, sanctions, and/or any other remedy available by law. 


196. What is a Reply Memorandum and when is it due? 


A Reply Memorandum is the information served on the Claims Administrator by the Petitioner if he or she wants to respond to assertions in the Response Memorandum. The Petitioner must serve any Reply Memorandum on the Claims Administrator within 20 days after the date the Claims Administrator serves the Response Memorandum. The Claims Administrator will serve the Respondent with the Reply Memorandum or hearing request. 

197. What information may be included in a Reply Memorandum? 


A Petitioner’s Reply Memorandum is limited to five pages in response to assertions in the Response Memorandum. The Reply Memorandum cannot raise new allegations. Any request for a hearing by the Petitioner must be made in the Reply Memorandum. If the Petitioner does not submit a Reply Memorandum but wishes to request a hearing, the hearing request must be made in writing to the Claims Administrator within 20 days after the date the Claims Administrator serves the Response Memorandum. The Reply Memorandum must include a statement signed by the Petitioner declaring under penalty of perjury pursuant to 28 U.S.C. § 1746 that the information submitted in the Reply Memorandum is true and accurate to the best of that Party’s knowledge and that the Petitioner understands that false statements made in connection with this process may result in fines, sanctions, and/or any other remedy available by law. 

198. What if I miss the deadline to submit my Memorandum in Support, Response Memorandum, or Reply Memorandum? 


Extensions of deadlines are discouraged. If you believe an extension is necessary, you must submit a written request to the Claims Administrator showing good cause for the extension. The request should not be filed on the Court's docket. The Magistrate Judge may exercise discretion to extend or modify any submission deadline. Before you submit a request for an extension, you must confer with the opposing Party and disclose whether it objects to your request. The Magistrate Judge will issue a notice of any extension or modification of a submission deadline, and the Claims Administrator will serve the notice on the Parties. 

199. What information will the Magistrate Judge consider in making the Report and Recommendation or the final decision? 


The Magistrate Judge bases the Report and Recommendation or the final decision (if the Parties consent to jurisdiction) on the following information.

(a) The Petition Record provided by the Claims Administrator which consists of: 

(1) A copy of the Notice of Monetary Award Claim Determination or Notice of Derivative Claimant Award Determination; 

(2) The Petition for Deviation;
 
(3) The Memorandum in Support; 

(4) The Response Memorandum; 

(5) Any Reply Memorandum; and 

(6) Any additional evidence produced by either Party or the Claims Administrator in response to a request of the Magistrate Judge. 

(b) Any testimony or documents properly presented during a hearing, if one is granted. 


200. If I am unrepresented in the Petition for Deviation proceedings, can I ask to have a lawyer appointed to represent me? 


The Magistrate Judge has the discretion to appoint counsel for any unrepresented Settlement Class Member. To request a lawyer, you must serve the Claims Administrator with a written request showing good cause for your need for representation. The Claims Administrator will present your request to the Magistrate Judge and let you know what he decides. 

201. Can I ask for a hearing on a Petition for Deviation from the fee cap? 


Yes. If you are the Petitioner and want a hearing, you must request one in your Reply Memorandum or by separate request if you do not submit a Reply Memorandum. If you are the Respondent and you want a hearing, you must request one in your Response Memorandum. The Magistrate Judge may order a hearing if he determines that such proceeding would help him resolve the Petition for Deviation. The Magistrate Judge will determine if the hearing will be in-person, by video conference, or by telephone conference. The Court's staff will make the necessary arrangements for video or telephone conference access if the Magistrate Judge orders such a hearing. 

202. How will I find out if the Magistrate Judge grants a hearing and when will the hearing be scheduled? 


The Claims Administrator will notify the Parties of the Magistrate Judge’s decision. If the Magistrate Judge determines a hearing is necessary, the Claims Administrator will serve the Petitioner and the Respondent with a Hearing Schedule. The hearing will be scheduled promptly, but no sooner than 20 days after the date of the Hearing Schedule. 

203. What happens at a hearing?


If the Magistrate Judge grants a hearing, the following procedure will apply.

(a) Evidence: The evidence that the Magistrate Judge may consider is limited to the Petition Record and any testimony and documents properly presented during the hearing. 

(b) Testimony Under Oath or Affirmation: Hearing testimony must be submitted under oath or affirmation administered by the Magistrate Judge or by any duly qualified person. The Magistrate Judge will determine if such hearing will be in-person, by video conference, or by telephone. If you want to present live testimony of anyone other than the Settlement Class member, you must submit a written request to the Claims Administrator no later than three days before the hearing that includes (1) the individual's name and relationship to you; (2) the nature and scope of the testimony to be provided; (3) the length of time the testimony will take; and (4) whether the essence of the testimony could be presented in any other manner.   

(c) Audio Recording of Hearing: The hearing proceedings will be audio-recorded. The recording will be made available to the Parties to listen to or to transcribe at their own expense. 


204. Do I have to participate in the hearing?


Both Parties and their lawyers, if any, must participate in the hearing. If you do not participate in the hearing without prior approval from the Magistrate Judge, he will issue a Report and Recommendation or a final decision (if the Parties consent to jurisdiction) based on the Petition Record at the time of the hearing, together with any testimony and documents properly presented at the hearing. 

205. Do I have to be represented by a lawyer at the hearing?  Can I have a non-lawyer advocate? 


You may be represented by a lawyer, but you are not required to be represented. If you do not have a lawyer for the hearing, with the Magistrate Judge’s permission, you may be represented by a non-lawyer advocate. 

206. When will the Magistrate Judge issue a Report and Recommendation or a final decision? 


The Magistrate Judge will issue a Report and Recommendation or a final decision (if the Parties consent to jurisdiction) after consideration of the Petition Record and any evidence properly presented during a hearing, if one is granted. The Claims Administrator will provide both Parties with a copy of the Report and Recommendation or the final decision. 

207. Can I object to the Magistrate Judge’s Report and Recommendation? 


Yes. The Parties have 14 days from the date the Claims Administrator serves the Report and Recommendation to file specific written objections with the District Judge, and 14 days from the date the Claims Administrator serves any objections to file a written response to the opposing Party’s objections. The Claims Administrator will serve copies of the objections and any responses to the objections on the Parties. 

208. Who makes the final decision resolving the Petition for Deviation from the fee cap? 


If both Parties consent, the Magistrate Judge will enter a final decision. Otherwise, the District Judge will enter a final decision after consideration of the Report and Recommendation and any objections from the Parties. The Claims Administrator will provide the Parties with a copy of the final decision. 

209. Can the District Judge or the Magistrate Judge change the final decision? 


Yes, the District Judge or the Magistrate Judge can change the final decision, but only within seven days after the date of the final decision and only to modify or correct any mathematical error or an obvious material mistake in computing the amount to be paid to the lawyer. 

210. Can I appeal the final decision? 


Yes.  Either Party may appeal the final decision. 

211. How will the withheld funds be paid after the final decision? 


After any timely appeals are resolved, the Claims Administrator will disburse the withheld funds in accordance with the final decision and the provisions of the Settlement Agreement and Court orders regarding settlement implementation.