Reply of Class Plaintiffs- Appellees in Further Support to Consolidate & Expedite

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 15-2206, 15-2217, 15-2230, 15-2234,

15-2272, 15-2273, 15-2294

IN RE: NATIONAL FOOTBALL LEAGUE

PLAYERS CONCUSSION INJURY LITIGATION ______________________________________________

APPELLANTS: CRAIG HEIMBURGER AND DAWN HEIMBURGER,

CLEO MILLER, et al., CURTIS L. ANDERSON,

DARREN R. CARRINGTON, RAYMOND ARMSTRONG, et al.,

LIYONGO PATRISE ALEXANDER, et al., and WILLIE T. TAYLOR

REPLY OF CLASS PLAINTIFFS-APPELLEES

IN FURTHER SUPPORT OF

MOTION TO CONSOLIDATE AND TO EXPEDITE APPEALS

Class Plaintiffs-Appellees (Plaintiffs) respectfully submit this Reply in

further support of their motion to consolidate and expedite the various related

appeals.1 Specifically, they address the respective oppositions filed by the Miller

Appellants, Appeal No. 15-2217 [Doc. No. 003111975010] and the Armstrong

Appellants, Appeal No. 15-2272 [Doc. No. 003111977879].2 We note that no

1 Since this motion was filed, the following additional appeals were docketed:

Appeal Nos. 15-2290, 15-2291, 15-2292, 15-2304, and 15-2305. 2 The Faneca Appellants (No. 15-2304) also filed a response to Plaintiffs Motion, but they agreed that the appeals should be consolidated and expedited. They

Case: 15-2206 Document: 003111979307 Page: 1 Date Filed: 06/02/2015

2

appellant opposes consolidation of all appeals filed by the Objectors to the

settlement. Those who opposed Plaintiffs Motion opposed only the expedited

briefing schedule proposed therein.

There is no reason why the Miller Appellants should require until mid-

August to prepare a brief addressing issues which were fully addressed in the

extensive briefing before the district court. The Armstrong Appellants do not

suggest an alternative due date for appellants briefs. They simply contend that six

weeks is insufficient.

The Miller Appellants also argue for a protracted briefing schedule,

contending that it is necessitated by their counsels commitments in another matter.

The reality of this case is that there are many Objector-Appellants, but the

underlying appeals concern a billion-dollar settlement affecting some 20,000

retired professional football players, many of whom are seriously ill. Counsel who

initiate appeals have an obligation to act with some measure of celerity. This

appeal should take priority.

disagreed only with the appellees request that in exchange for agreeing to file single briefs in response to the many appellants briefs, that appellees be afforded longer length briefs.


3

The Miller Appellants agree to forego the Fed. R. App. P. 33 mediation

process, but the Armstrong Appellants do not.3 We submit that the instant appeal

is not the type of appeal that the Appellate Mediation Program was designed to

address and we have found no reported decision in which a circuit court directed

mediation of an objectors appeal from a certified class action settlement, let alone

the appeals of numerous objectors. The settlement that is the subject of these

appeals was reached in this case through mediation and the involvement of a

Special Master. An additional layer of compulsory mediation at this stage, after

that settlement was thoroughly vetted by the district court, in order to placate a

number of Objector-Appellants and their counsel would do nothing other than

further delay the resolution of this matter.

We decline to address herein the Miller Appellants misunderstanding of

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).4 The Amchem decision and

other substantive arguments will be addressed in full in the briefing.

In short, nothing in the two Oppositions warrants denial of movants request

for an expedited schedule. Further delay of the Class members receipt of the

valuable benefits provided by the settlement is unwarranted.

3 Presumably, the Armstrong Appellants are referring to this Courts Appellate Mediation Program, adopted under the authority of Fed. R. App. P. 33. See 3d Cir.

R. 33.0-33.6. 4 The Armstrong Appellants also allude to an alleged Amchem problem with the

Settlement.


4

Accordingly, for the foregoing reasons, and those set forth in the opening

motion, this Court should consolidate all related appeals, set an expedited

schedule, and hear this matter as soon as practicable.

Dated: June 2, 2015 Respectfully submitted,

/s/ Christopher A. Seeger

Christopher A. Seeger (NY 2425304)

David R. Buchanan

TerriAnne Benedetto

Diogenes P. Kekatos

SEEGER WEISS LLP

77 Water Street

New York, NY 10005

Phone: (212) 584-0700

Fax: (212) 584-0799

[email protected]

Co-Lead Class Counsel

Sol Weiss

ANAPOL SCHWARTZ

1710 Spruce Street

Philadelphia, PA 19103

Phone: (215) 735-1130

Fax: (215) 735-2024

[email protected]

Co-Lead Class Counsel

Samuel Issacharoff

40 Washington Square South

New York, NY 10012

Phone: (212) 998-6580

Fax: (212) 995-4590

[email protected]


5

CERTIFICATE OF SERVICE

I, Christopher A. Seeger, hereby certify that on the 2nd day of June 2015, I

electronically transmitted a true and correct copy of the foregoing document,

REPLY OF CLASS PLAINTIFFS-APPELLEES IN FURTHER SUPPORT

OF MOTION TO CONSOLIDATE AND TO EXPEDITE APPEALS, to the

Clerk of the Court using the CM/ECF System for filing and transmittal of a Notice

of Electronic Filing to all attorneys of record who are ECF registrants. I also

certify that on said date one copy of the aforementioned document was served by

UPS overnight delivery upon the Pro Se Appellant, listed below.

Darren Carrington

14097 Montfort Court

San Diego, CA 92128

Pro Se

/s/ Christopher A. Seeger

Christopher A. Seeger


Documents

Reply of Class Plaintiffs- Appellees in Further Support to Consolidate & Expedite