SMITH, Chief Judge.
This consolidated appeal involves issues tangential to the expansive National Football League (NFL) concussion injury litigation. Following approval of the settlement agreement in that class action in 2015, various class members entered into cash advance arrangements with third party litigation funders. Under the agreements relevant to the cases on appeal, class members purported to assign their rights to a portion of their settlement proceeds in exchange for receipt of immediate cash.
In December 2017, Eastern District of Pennsylvania Judge Anita Brody, who had presided over the NFL class action and retained jurisdiction while the settlement was being administered, issued an order purporting to void in their entirety all of the assignment agreements. The District Court
We commend Judge Brody for her very able handling throughout this extraordinarily complicated class action and settlement, and we appreciate her steadfast commitment to protecting class members' rights. In this instance, though, despite having the authority to void prohibited assignments, the District Court went too far in voiding the cash advance agreements in their entirety and voiding contractual provisions that went only to a lender's right to receive funds after the player acquired them. Accordingly, we will affirm in part and reverse in part in case 18-1040. We will dismiss cases 18-1639, 18-2582, and 18-1482 for lack of jurisdiction. We will vacate and remand in cases 18-2184 and 18-3005.
In early 2012, MDL 2323 was formed to handle claims that had been filed by former professional football players against the NFL based on concussion-related injuries.
Under the settlement agreement, approximately 200,000 class members gave up their claims in exchange for potential proceeds from an uncapped settlement fund. In order to receive an award, a class member must first submit a claim package including medical records reflecting a qualifying diagnosis, among other things. The Claims Administrator then conducts a preliminary review for deficiencies, investigates the claim as appropriate, and makes a determination as to whether the class member qualifies for a monetary award. Either the class member or the NFL can then appeal the monetary award determination. Only after any appeals are completed does the Claims Administrator pay out the individual's award.
In March 2017, the claims submission process opened for class members who had been diagnosed with a qualifying illness prior to January 7, 2017. The first payouts for this group of players took place in mid-2017. Individuals without a diagnosis prior to January 7, 2017, were required to receive a diagnosis from a practitioner approved through the settlement Baseline Assessment Program (BAP). Class members could begin registering for appointments through the BAP system in June 2017. Thus, after entering into the settlement in May 2015, class members waited at least two years, and often longer, before receiving their awards.
While waiting to receive their awards, hundreds of class members entered into cash advance agreements with dozens of litigation funding companies, including the three groups of funding entities who are appellants here. Under the agreements relevant to this appeal, class members purported to "assign" their rights to a portion of their settlement proceeds in exchange for immediate cash. The amount of proceeds assigned and the cash received varied with each class member's contract. The effective interest rate, calculated by comparing the amount of money assigned with the amount of money received, also varied significantly among the contracts.
Under the agreements entered into by the Atlas entities and Thrivest, the funding companies obtained no right to submit a claim directly to the Claims Administrator and instead acquired only the right to receive settlement funds after the Claims Administrator had paid out the awards to the particular class members with whom they contracted. Under the RD entity agreements, the funding companies purported to obtain both the right to collect directly from the Claims Administrator and the right to collect after the award was paid out to the class member.
Importantly, the May 2015 final settlement agreement included a provision under which Judge Brody broadly retained jurisdiction over administration of the settlement:
The settlement agreement also included an anti-assignment provision:
The District Court incorporated all of the settlement terms into its final order dismissing the case.
Following approval of the settlement, the District Court and class counsel took various steps to address cash advance agreements. In July 2016, class counsel first sent a letter to the class warning of predatory lending. The letter advised class members to avoid encumbering their settlement proceeds whenever possible. Atlas App. 1142 ("[I]f you are able to resist borrowing against any payments you might be eligible for under the Settlement, you should."). In June 2017, class counsel advised the Court that he was concerned with solicitations being sent to the class, including by high interest lenders, and received the Court's permission to send another letter to the class regarding the practice. In July 2017, Judge Brody scheduled a hearing for September 19, 2017, to address deceptive practices targeting the class, including solicitations from litigation funders.
In an entirely separate proceeding in the Southern District of New York before Judge Loretta Preska, the Consumer Financial Protection Bureau (CFPB) and the New York Attorney General challenged the business practices of the RD funding entities. In that lawsuit, the Government claimed that RD was engaging in fraudulent lending practices through certain agreements related to settlement proceeds, including agreements with NFL
On September 19, 2017, Judge Brody conducted the scheduled hearing concerning deceptive practices. After learning of Judge Preska's referral letter, RD participated in the hearing, but other funding companies, including Atlas and Thrivest, were not involved. Following the hearing, class counsel filed a motion requesting that any disputed portion of a class member's award be withheld pending the Court's determination of whether the cash advance agreements were enforceable. The District Court granted Thrivest objector status as to the motion to withhold, and Thrivest submitted an opposition to class counsel's motion, arguing in part that the District Court lacked authority to adjudicate the enforceability of the third-party agreements. The Atlas entities moved to intervene and submitted opposition papers, but the Court did not grant the motion at that time, instead denying it as moot in June 2018.
On December 8, 2017, the District Court entered an order requiring class members to inform the Claims Administrator of all assignment agreements, and purporting to void all such agreements: "To the extent that any Class Member has entered into an agreement that assigned or attempted to assign any monetary claims, that agreement is void, invalid and of no force and effect." RD App. 5. The order further directed a procedure under which funding companies could accept rescission and return of the principal amount they had provided to class members by executing waivers relinquishing all rights under the agreements. The District Court noted that further instructions to the Claims Administrator would follow.
The December 8, 2017 order did not make factual findings as to any specific agreement or the practices of any specific funding company. Instead, the District Court relied on the anti-assignment provision in the settlement agreement and its own role as a fiduciary to the class as bases for entering the expansive order. Although the December 8, 2017 order was directed broadly to all class members and all purported assignment agreements, and certainly affected the rights of all litigation funding companies that had entered into such contracts, many of the companies affected had not entered appearances or submitted any filings. Nor was any hearing conducted apart from the initial September 19, 2017 hearing. The RD entities filed a timely notice of appeal as to the December 8, 2017 order, No. 18-1040.
On February 20, 2018, the District Court ordered the Claims Administrator to disburse settlement proceeds directly to qualifying class members who had entered into assignment agreements that the Court had voided under the December 8, 2017 order. The RD entities filed a second timely
On May 1, 2018, Thrivest filed a complaint to compel arbitration against class member William E. White in the Western District of Pennsylvania, pursuant to a cash advance agreement between the company and White. Thrivest also initiated arbitration with the American Arbitration Association in Philadelphia. On May 2, 2018, class counsel filed on the NFL class docket an emergency motion for a temporary restraining order to prevent Thrivest from pursuing arbitration. Judge Brody granted the motion. Following a hearing, Judge Brody entered a permanent injunction on May 22, 2018, enjoining Thrivest from arbitrating the enforcement of its assignment agreement with White. On May 29, 2018, Thrivest filed a timely notice of appeal, No. 18-2184.
On June 28, 2018, Judge Brody denied as moot the class's motion to withhold the disputed settlement funds. Thrivest filed a second notice of appeal as to that order, No. 18-2582, arguing that by denying the motion to withhold as moot, the District Court had effectively applied the December 8, 2017 and February 20, 2018 orders to Thrivest for the first time.
The Western District of Pennsylvania later transferred Thrivest's case against class member White to the Eastern District of Pennsylvania. In August 2018, Judge Brody dismissed Thrivest's separate lawsuit against White, citing her May 22, 2018 order enjoining Thrivest from pursuing arbitration. Thrivest filed a timely notice of appeal from the dismissal, No. 18-3005.
Prior to reaching the merits of these appeals, we must address whether they are properly before this Court. Specifically, the consolidated appeals present jurisdictional issues of timeliness and appealability, each of which we will address in turn.
The parties agree that the RD entities timely appealed both the December 8, 2017 and February 20, 2018 orders. We agree. The class argues, however, that both the Atlas entities and Thrivest failed to timely appeal some of the orders they are challenging. We agree and will dismiss the relevant appeals.
Atlas filed its notice of appeal on March 22, 2018, purporting to challenge both the District Court's December 8, 2017 order and its February 20, 2018 order. The class contends that Atlas's March 22, 2018 notice of appeal was not timely as to the December 8, 2017 order. As discussed infra, we conclude that the December 8, 2017 order was a final, appealable order. The order was clear and definite in its ruling that the anti-assignment provision forbade assignment of settlement proceeds and that any agreement was "void, invalid and of no force and effect." RD App. 5. The order also specified that if the funding companies opted for rescission, they could receive "the amount already paid to the
As to Thrivest, there is no question that the company timely appealed Judge Brody's order enjoining it from pursuing arbitration (18-2184) and Judge Brody's order dismissing the Thrivest v. White case (18-3005). Thrivest also filed a notice of appeal on July 16, 2018, appealing from Judge Brody's order denying as moot the motion to withhold the disputed settlement funds. But in its briefing, Thrivest attempts to challenge not the order denying the motion to withhold, but rather the December 8, 2017 and February 20, 2018 orders. Thrivest argues that it was not until the Court's June order denying the motion to withhold that Thrivest understood the Court's previous orders to have decided the objections Thrivest raised in its November 2017 opposition. Thrivest argues that it therefore had no reason to believe, at the time those orders were entered in December 2017 and February 2018, that they affected its rights such that appeal would be necessary.
By their clear terms, the December 8, 2017 and February 20, 2018 orders applied to all assignment agreements entered into by class members, so the District Court necessarily rejected the arguments raised by Thrivest in its opposition when the Court purported to void the agreements. To the extent Thrivest attempts to appeal the denial of the motion to withhold, it failed to brief that issue and instead addressed only the December 8, 2017 and February 20, 2018 orders. Any argument as to the order denying the motion to withhold is therefore forfeited. Further, we conclude that Thrivest cannot bootstrap its arguments regarding the December 8, 2017 and February 20, 2018 final orders to its July 16, 2018 notice of appeal. Accordingly, we will dismiss as untimely Thrivest's appeal in case number 18-2582.
In the remaining cases that were timely appealed, 18-1040, 18-1482, 18-2184, and 18-3005, the appellants-litigation funders appeal four orders: (1) the December 8, 2017 order voiding the assignment agreements; (2) the February 20, 2018 order directing the Claims Administrator to disburse funds; (3) the May 22, 2018 order enjoining Thrivest from arbitrating the enforceability of its assignment agreement; and (4) the order dismissing Thrivest v. White, respectively. We conclude that we have appellate jurisdiction to consider appeals of the first, third, and fourth orders under 28 U.S.C. §§ 1291 and 1292,
The December 8, 2017 and February 20, 2018 orders are not traditional "final" orders under 28 U.S.C. § 1291 because they did not terminate the litigation in the District Court. Yet there are circumstances where finality should be given a "practical rather than a technical construction." Isidor Paiewonsky Assocs., Inc. v. Sharp Props., Inc., 998 F.2d 145, 150 (3d Cir. 1993). "[T]his is especially so when supplementary post-judgment orders are involved because the policy against and the probability of avoiding piecemeal review are less likely to be decisive after judgment than before." Id. (internal quotation marks omitted). Under the collateral order doctrine, we also have jurisdiction under 28 U.S.C. § 1291 to review "certain decisions that do not terminate the litigation... as final decisions of the district courts if they are (1) conclusive, (2) resolve important questions completely separate from the merits, and (3) would render such important questions effectively unreviewable on appeal from final judgment in the underlying action." Russell v. Richardson, 905 F.3d 239, 253 (3d Cir. 2018) (internal quotation marks omitted).
Here, the NFL concussion litigation final judgment has already been appealed to, and approved by, this Court. As a result, the District Court's post-judgment orders of December 8, 2017 and February 20, 2018 could not be appealed along with any future "final order," and there is not the usual concern of piecemeal litigation. At this point, however, our analysis of the December and February orders must diverge due to the fundamental differences between the two orders. The December 8, 2017 order bears indicia of finality—it purported to void any assignment agreement in its entirety, leaving no additional steps for the District Court to take. As revealed by the subsequent order enjoining Thrivest from pursuing arbitration to determine the enforceability of its agreement, the District Court believes that its December order fully and finally determined that substantive issue. The issues presented by the December 8, 2017 order are also important because they involve freedom of contract and the authority of the District Court, and those questions are collateral to, and completely separate from, the NFL class action merits issues. We therefore conclude that we have jurisdiction under 28 U.S.C. § 1291 to consider RD's timely appeal of the December 8, 2017 order.
As to the February 20, 2018 order, we conclude that the requisites for appeal under the collateral order doctrine are not satisfied. First, as a purely administrative order, the order did not conclusively resolve
Further, the February 20, 2018 order does not raise important issues, as required to satisfy the second collateral order element. There can be no question that the February 20, 2018 order is precisely the type of administrative order that the District Court plainly retained the authority to enter, as explained infra. And the order did not affect the substantive rights of the parties, which had already been ruled upon in the December 8, 2017 order. Instead, the order merely directed the Claims Administrator to distribute funds in a particular way. Such a discretionary, non-substantive decision by the District Court presents little for an appellate court to review, and is inappropriate for review under the narrow collateral order doctrine. We therefore conclude that we do not have appellate jurisdiction to review the February 20, 2018 order, and we will dismiss case number 18-1482.
The third order, enjoining Thrivest from arbitrating the enforceability of its assignment agreement is reviewable under 28 U.S.C. § 1292 as an order of the District Court granting an injunction. The fourth order, dismissing Thrivest v. White, is subject to appellate jurisdiction under 28 U.S.C. § 1291 as a traditional final order. Accordingly, we have jurisdiction to address the merits in three of the four timely appeals.
On appeal, the fundamental question is whether the District Court had the authority to void the cash advance agreements. We conclude that the District Court retained broad authority to administer the settlement, but that the Court ultimately
Where parties have entered into a settlement agreement and a district court has dismissed the case, the court retains jurisdiction over issues related to the case only to the extent it has expressly retained jurisdiction or incorporated the settlement agreement into its dismissal order. Shaffer v. GTE N., Inc., 284 F.3d 500, 503 (3d Cir. 2002). Here, the District Court broadly retained jurisdiction over administration of the NFL class settlement and the class action parties. The Court expressly incorporated the settlement agreement into the order approving the settlement, including the jurisdiction retention provision. See supra Section I. The District Court also included a second jurisdiction retention provision in the final order:
RD App. 285. As a result, the District Court retained broad jurisdiction to administer the settlement and resolve issues relating to it.
Although the District Court's retention of jurisdiction applied only to the parties and other related entities expressly set out in the retention provision—and there can be no dispute that the settlement agreement was not binding on nonparties—the Court also had authority to enforce its orders under the All Writs Act, 28 U.S.C. § 1651, as well as authority to protect the class as a fiduciary under Federal Rule of Civil Procedure 23. Neither of these sources of authority independently create jurisdiction, see Clinton v. Goldsmith, 526 U.S. 529, 534-35, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999); Fed. R. Civ. P. 82, but they both allow a court to exercise some degree of control over third parties in specific circumstances. See In re Grand Jury Proceedings, 654 F.2d 268, 277 & n.14 (3d Cir. 1981) (The All Writs Act "extends to all persons who are in a position to frustrate the implementation of a court order or the proper administration
Specifically, under the All Writs Act, action is authorized to the extent it is "necessary or appropriate" to enforce a Court's prior orders. See 28 U.S.C. § 1651; see also United States v. N.Y. Tel. Co., 434 U.S. 159, 172, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977) ("This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained."). Or, as this Court has explained it, there is authority under the Act to issue an injunction where such relief is "necessary, or perhaps merely helpful." Pittsburgh-Des Moines Steel Co. v. United Steelworkers of Am., AFL-CIO, 633 F.2d 302, 307 (3d Cir. 1980). This Court has similarly clarified that any remedy under Rule 23(d) "should be restricted to the minimum necessary to correct the effects of improper conduct under Rule 23." In re Cmty. Bank of N. Va., 418 F.3d 277, 310 (3d Cir. 2005); see also Coles v. Marsh, 560 F.2d 186, 189 (3d Cir. 1977) ("[T]he district court must find that the showing provides a satisfactory basis for relief and that the relief sought would be consistent with the policies of Rule 23 giving explicit consideration to the narrowest possible relief which would protect the respective parties.").
Pursuant to the settlement agreement and the District Court order approving and adopting the agreement, the District Court retained the authority to enforce the terms of, and administer, the settlement. As noted supra, we have no doubt that the District Court had the authority to enter purely administrative orders such as the February 20, 2018 order directing the disbursement of funds to class members. Our analysis of the December 8, 2017 order is a bit more complicated. That order went beyond pure issues of settlement administration to adjudicate the third-party contract rights of litigation funding companies. Under the All Writs Act and Rule 23, the District Court had authority to enjoin behavior by third parties to the extent necessary to effectuate and preserve the integrity of its prior orders. The question becomes whether, to accomplish those goals, it was necessary for the District Court to void the cash advance agreements in their entirety in the December 8, 2017 order.
The anti-assignment provision in the NFL concussion settlement agreement is as follows:
This provision includes express language that any assignment "will be void, invalid,
The question then becomes whether true assignments of settlement proceeds, like those reportedly in the cash advance agreements, qualify as assignments of "rights or claims relating to the subject matter of the Class Action Complaint." The District Court found that the anti-assignment provision language applied to assignments of proceeds. This is a pure question of interpretation reviewed for clear error, see In re Cendant Corp. Prides Litig., 233 F.3d 188, 193 (3d Cir. 2000), and we identify no clear error here.
Based on these conclusions, we also must rule that it was necessary to the District Court's enforcement of the settlement agreement, and the enforcement of its own order approving and adopting the agreement, for the Court to be able to void any true assignments. Otherwise, class members and the litigation funding companies could have undermined the District Court's order by entering into prohibited assignments in contravention of the clear terms of the settlement agreement. We will therefore affirm the District Court's December 8, 2017 order to the extent it voided any true assignments set forth in the cash advance agreements.
Further, although true assignments, which allow a litigation funding company to step into the shoes of a class member and pursue the class member's rights through the claims process, would clearly violate the anti-assignment provision and would affect the administration of the settlement, something less than a true assignment may not. For example, there is no dispute that a loan transaction between a class member and a third party is not prohibited under the terms of the settlement. And where a class member enters into a non-assignment cash advance agreement, such an agreement could be structured like a loan, which would not seem to affect administration of the settlement or violate the anti-assignment provision. The District Court's authority certainly does not extend to how class members choose to use their settlement proceeds after they are disbursed. The District Court made no findings indicating that any aspects of the cash advance agreements, other than assignments, impaired the integrity of the settlement process. As such, to the extent the District Court's December 8, 2017 order voided the cash advance agreements in their entirety, the order was not narrowly tailored to the Court's findings regarding the impact of the agreements on the settlement.
We express no opinion as to the ultimate enforceability of any of the cash advance agreements. We do note, though, that a court or arbitrator subsequently adjudicating these issues will need to address whether any individual agreement contains a true assignment and whether there remain enforceable rights under the agreement after any true assignment is voided. We presume that the full array of standard contract defenses will also apply in any subsequent litigation regarding these agreements. As noted by Judge Brody in her December 8, 2017 order, some of the class members are cognitively impaired, and it is possible that some of them lacked the capacity to contract at the time they entered into the agreements.
Finally, it necessarily follows from our rulings limiting the reach of the December 8, 2017 order that the District Court exceeded its authority when it (1) enjoined Thrivest from pursuing arbitration of its rights under the cash advance agreement with class member White, and (2) dismissed Thrivest's lawsuit attempting to enforce that agreement. In entering those orders, the District Court relied on the fact that it had already invalidated the Thrivest agreement. But as we explained above, Thrivest's contract gave it only the right to receive settlement funds after the funds are disbursed to a class member, and the District Court's power over the funds and class ends at that point. Supra Parts I & III.B. Even if the parties had attempted to create a true assignment, we
For the reasons given, we will reverse in part and affirm in part the District Court's December 8, 2017 order. We will reverse to the extent the District Court purported to void the cash advance agreements in their entirety and void contractual provisions that went only to a lender's right to receive funds after the player acquired them. We will affirm as to the District Court's ruling that any true assignments— contractual provisions that permit the lender to seek funds directly from the Claims Administrator—are void. We will vacate the District Court's May 22, 2018 order enjoining Thrivest from pursuing arbitration and the District Court's order dismissing Thrivest's complaint in Thrivest v. White, and remand for further proceedings. We will dismiss the appeals at 18-1639, 18-2582, and 18-1482 for lack of jurisdiction.
Going forward, the litigation funding companies will be able to pursue, outside of the claims administration process, whatever rights they may continue to have under their cash advance agreements with class members. We offer no opinion as to the companies' prospects for success in enforcing the funding agreements. Indeed, our opinion today should in no way suggest that an individual agreement is enforceable. Any questions going to the enforceability of the funding agreements will have to be litigated or arbitrated in the appropriate fora.