ABSTRACT
In class actions, a court should deny preliminary approval only if there are reasons to doubt an agreement’s fairness or if there are other glaring deficiencies. There is an initial presumption of fairness if negotiations have occurred at arm’s length, where there has been ‘sufficient’ discovery of legal and other documents, where the proponents of the settlement are experienced in similar litigation and where only a small fraction of those covered object to the settlement. Judge Brody, while accepting the parties had negotiated at arm’s length and in good faith, felt there were still ‘obvious deficiencies’ because there was no guarantee that all those who received qualifying diagnoses in the future would be paid, despite the vast sums of money involved and the potential for top-up payments. ‘Even if only 10 per cent of all retired NFL players eventually receive a qualifying diagnosis it is difficult to see how the Fund will have the funds available over its lifespan to pay all claimants at these significant award levels’, and while the mediator (appointed by Brody herself) had cited independent analyses to justify his belief that $760 million would be enough, Judge Brody said no such analyses
had been provided to her; she ordered the parties to share their documentation with the court ‘as a first step toward preliminary approval’.
