The NFL concussion litigation has been — pardon the pun — a game changer. After the first lawsuit was filed in 2011, it quickly evolved into a massive, high-profile litigation. The legal action sparked better rules across contact sports and new research into head trauma. But as the former players pursued compensation for their injuries, many ran into financial struggles. And understandably so; often their head trauma could prevent them from future employment, as well as inflict other psychological and emotional trauma.. As a result, some individuals turned to plaintiff-funding companies to help them make ends meet until their settlement arrived. Unfortunately, their third-party agreements with those companies came with staggeringly high interest rates. The situation felt downright predatory, especially considering the cognitive impairments that the players were suffering from.
U.S. District Court Judge Anita Brody, who presided over the litigation, put the kibosh on those agreements. She issued a ruling that voided all existing funding agreements with the former players, and prohibited the plaintiffs from receiving any financial assistance from the companies.
Frustrated with the potential loss of funds, Thrivest Specialty Funding tried to get around this. Their client, William White, who suffers from ALS, decided to sell part of his estimated $3.5 million NFL settlement to Thrivest in exchange for a $500K advance (with an interest rate of 19 percent) to square up with the IRS. Because Judge Brody had nullified those types of transactions for the NFL concussion plaintiffs, Thrivest sought to have the matter sent to arbitration. Brody blocked the attempt, ruling that the company would not be allowed to arbitrate the matter.
Arbitration agreements state that a person cannot bring a claim in public court to resolve a dispute. Instead, he or she must deal with the matter in a private system before an arbitrator. Arbitration was meant to be an efficient way to end disagreements outside of court, but it is rarely a fair process. Just recently, the House of Representatives passed a bill to ban forced arbitration, a tactic usually employed by businesses that often harms workers and consumers.
This situation with the former NFL players is just one of many examples that show the questionable practices of the unregulated, for-profit plaintiff funding industry. Access to capital is a critical need of many plaintiffs who are seeking justice, but sky-high interest rates do not actually help anyone get back on their feet. Sometimes, the amount they owe after interest is worth more than the value of their total settlement recovery. When that happens, what’s the point of pursuing litigation?
We at the Bairs Foundation commend Judge Brody for all her efforts to promote fairness and protect the NFL concussion plaintiffs as they near settlement.