Case: 15-2304

Document: 003112232896

Page: 1

Date Filed: 03/15/2016

Steven F. Molo
Molo Lamken LLP
540 Madison Avenue
New York, NY 10022
T: 212.607.8170
F: 212.607.8161
smolo@mololamken.com
www.mololamken.com

March 15, 2016

By ECF
The Honorable Marcia M. Waldron
Clerk of Court
U.S. Court of Appeals for the Third Circuit
21400 U.S. Courthouse
601 Market Street
Philadelphia, PA 19106
Re:

In re Natl Football League Players Concussion Injury Litig., No. 15-2304

Dear Ms. Waldron,

I write to apprise the Court of pertinent and significant authority pursuant to Federal Rule
of Appellate Procedure 28( j).
Yesterday, the House Energy & Commerce Subcommittee on Oversight & Investigations
held a roundtable discussion on concussions. Jeff Miller, the NFLs Executive Vice President
of Health and Safety Policy, participated in that roundtable. During the roundtable,
Representative Schakowsky asked, Mr. Miller, do you think there is a link between football and
degenerative brain disorders like CTE? Mr. Miller responded: Well, certainly, Dr. McKees
research shows that a number of retired NFL players are diagnosed with CTE so, there the
answer to that question is certainly yes. C-SPAN3, Concussion Research & Treatment, at
timestamp 1:24:26 (Mar. 14, 2016) (emphasis added), http://www.c-span.org/video/?4064501/hearing-concussions. He later affirmed, I think certainly, based off Dr. McKees research
theres a link because shes found CTE in a number of retired football players. Id. at 1:25:09
(emphasis added).
The NFLs admission supports both the Faneca Objectors argument that CTE was the
most serious and harmful disease resulting from concussions, and their reliance on Dr.
McKees research. Faneca Br. 38, 42-44. The NFLs comments further signal the NFLs
acceptance of Dr. McKees conclusions regarding CTEa stark turn from its position before the
district court, which relied on the NFLs experts to dismiss the significance of that same
research. See A.138-40. The NFLs statements make clear that the NFL now accepts what
science already knows: a direct link exists between traumatic brain injury and CTE. Faneca
Br. 40. Given that, the Settlements failure to compensate present and future CTE is
inexcusable. Id. at 37-47.

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-2The NFLs testimony also directly contradicts its positions in this case. For example, the
NFL argued that researchers have not reliably determined which events make a person more
likely to develop CTE. NFL Br. 72. And it stated (at 52) that the speculation that repeated
concussion or subconcussive impacts cause CTE remains unproven. But clearly, the NFL, per
its Executive Vice President Mr. Miller, believes that football is certainly . . . link[ed] to CTE.
That cannot be reconciled with the NFLs position in briefing.
Respectfully submitted,
/s/ Steven F. Molo
Steven F. Molo
Cc: All counsel by ECF

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-3CERTIFICATE OF SERVICE
I certify that today, March 15, 2016, I caused the foregoing Letter of Supplemental
Authority to be electronically filed with the Clerk of the Court for the U.S. Court of Appeals for
the Third Circuit using the appellate CM/ECF system. All participants in the case are registered
CM/ECF users and will be served by the appellate CM/ECF system.

March 15, 2016

/s/ Steven F. Molo

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Document: 003112234113

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March 15, 2016

Marcia M. Waldron
Clerk of Court
U.S. Court of Appeals for the Third Circuit
James A. Byrne United States Courthouse
601 Market Street
Philadelphia, PA 19106
Re: In re Natl Football League Players Concussion Injury Litig.,
Nos. 15-2304 et al.
Dear Ms. Waldron,
On behalf of the NFL, we write in response to the March 15, 2016, letter
submitted to the Court by Steven F. Molo on behalf of the Faneca Objectors,
purporting to provide the Court with pertinent new authority. Mr. Molos letter
does nothing of the sort.
First, the premise of Mr. Molos letter and briefs is wrong. Mr. Molos letter
fundamentally mischaracterizes the Settlement Agreement as failing to compensate
CTE, ignoring the District Courts finding that the Settlement compensates the
serious, objectively verifiable neurocognitive and neuromuscular impairment in
living players allegedly associated with CTE according to the very studies relied on
by Appellants and their experts. A. 140-42. Moreover, Mr. Molos letter does not
address the District Courts holding that the Settlement draws reasonable lines
regarding compensationlines accepted by more than 98 percent of the Class.
Second, Mr. Millers statement yesterday to the U. S. House of Representatives
Committee on Energy & Commerce roundtable discussion is consistent with NFL
positions in court and otherwise. The NFL has previously acknowledged studies
identifying a potential association between CTE and certain football players, including
Dr. McKees work, to which the NFL has contributed funding. Conspicuously omitted
from Mr. Molos letter is any reference to either Mr. Millers comments on the limited
knowledge of the incidence or the prevalence of CTE or the District Courts express
finding that the scientific community indisputably acknowledges that the causes of
CTE remain unknown and the subject of extensive medical and scientific research. A.
500 New Jersey Avenue, NW Seventh Floor Washington, DC 20001
Telephone (202) 234-0090 www.bancroftpllc.com Facsimile (202) 234-2806

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136-40; see NFL Br. at 51-53.

Simply put, Mr. Millers remarks have no bearing on the pending appeal, and
Mr. Molos letter raises nothing new, pertinent, or authoritative.
Respectfully submitted,
s/Paul D. Clement
Counsel for Defendants-Appellees
cc: All Counsel (via ECF)

500 New Jersey Avenue, NW Seventh Floor Washington, DC 20001

Telephone (202) 234-0090 www.bancroftpllc.com Facsimile (202) 234-2806

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Date Filed: 03/15/2016

CERTIFICATE OF SERVICE
I hereby certify that on March 15, 2016, I electronically filed the foregoing with
the Clerk of the Court for the United States Court of Appeals for the Third Circuit by
using the CM/ECF system. I certify that all participants in the case are registered
CM/ECF users and that service will be accomplished by the CM/ECF system.
Date: March 15, 2016
s/Paul D. Clement
Paul D. Clement

500 New Jersey Avenue, NW Seventh Floor Washington, DC 20001

Telephone (202) 234-0090 www.bancroftpllc.com Facsimile (202) 234-2806

Case: 15-2304

Document: 003112235407

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Date Filed: 03/16/2016

March 16, 2016

VIA ECF
Marcia M. Waldron
Clerk of Court
U.S. Court of Appeals for the Third Circuit
James A. Byrne United States Courthouse
601 Market Street
Philadelphia, PA 19106
Re:

In re National Football League Players Concussion Injury Litig., No. 15-2304

Dear Ms. Waldron:

The March 15, 2016 letter submitted by Steven F. Molo, counsel for the Faneca Objectors, fails
to identify any new authority, as required under Fed. R. App. P. 28(j).
First, statements to Congress by an NFL representative do not constitute new authority in any
sense. In his statement, NFL vice president Jeff Miller referenced the studies by Boston
University researcher Ann McKee that established a high percentage of CTE in a non-random
examination of the brains of 85 deceased athletes and veterans, several of which were NFL
players. The McKee study was extensively addressed by the district court in approving the
Settlement Agreement, and was the subject of extensive discussion before this Court at oral
argument. The McKee study, which was funded in part by the NFL, was known to all parties
throughout this litigation.
Second, lacking new information to offer, Mr. Molos letter is an improper attempt to reopen
briefing in this case. The letter, consistent with Appellants underlying briefing, misunderstands
the settlement at issue. The parties agreed to a long-term compensation system for the conditions
that are associated with the concussive and subconcussive impacts seen with football play. Mr.
Molos letter ignores the broad relief provided to anyone who played NFL football through the
Baseline Assessment Program. It further ignores the significant monetary awards for the
objectively verifiable and most serious neurocognitive and neuromuscular injuries that have been
associated with CTE in the reports by McKee and others, namely, dementia, Alzheimers
Disease, Parkinsons Disease, and ALS. The statements by the NFL representative do not alter

NewYorkNewarkPhiladelphia

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Clerk of Court
March 16, 2016
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the underlying science or the significant compensation set forth in the Settlement Agreement,
which has been overwhelmingly approved by the Class.

Respectfully submitted,
/s/ Christopher A. Seeger
Christopher A. Seeger
Samuel Issacharoff
Counsel for Plaintiffs-Appellees

cc: All counsel of Record (via ECF)

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CERTIFICATE OF SERVICE
I hereby certify that on March 16, 2016, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Third
Circuit by using the CM/ECF system. I certify that all participants in the case
are registered CM/ECF users and that service will be accomplished by the CM/ECF
system.
Date: March 16, 2016

s/Christopher A. Seeger
Christopher A. Seeger

500 New Jersey Avenue, NW Seventh Floor Washington, DC 20001

Telephone (202) 234-0090 www.bancroftpllc.com Facsimile (202) 234-2806