Confidential

Protected Settlement Communication

Attorney Work Product

Prepared for Litigation: In re NHL Players’ Concussion Inj. Litig.

To:        NHL Clients

From:        STSW/NBO

Re:        Summary of Settlement Terms

Date:        11.7.18

Summary of Terms of Settlement Agreement

Overview

The Settlement Agreement has been extensively negotiated and revised over many exhausting in- person sessions at Skadden and by email exchanges, with the help of Judge Keyes.  

The Settlement Agreement and its attendant exhibits are very complicated.  Regrettably, that complexity could not be avoided given the circumstances.    

We believe, as Judge Keyes confirms, the deal now in place is the very best we can do.  The settlement benefits provided are meaningful and perhaps even better, in some respects, than what we might have achieved had the case gone forward to trial.  

We believe the deal is a good one and are recommending that you accept the deal.

Settlement Agreement

We will not try to summarize every provision of the Settlement Agreement, which exceeds 50 single-spaced pages.  Rather, we will focus on high-level description of what seem to be the most important terms and conditions.

Signatories:        All Co-Leads, Liaison Counsel, PEC members (one lawyer per firm)

Monetary Settlement Benefits:

$6,996,000        aggregate in payments for all settling clients ($22,000/each; no lawyer fees or costs will be deducted from these payments)

$552,000        aggregate in supplementary payments for those clients who submitted Plaintiff Fact Sheets or claimant-specific interrogatory responses ($4,000/each)

$60,000        aggregate in Settling Plaintiff Service Awards ($10,000/each)

$1,100,000        aggregate for Additional Payment Fund (for qualifying Testing Participants, maximum of $75,000 per such qualifying participant; any surplusage goes to the Common Good Fund; if a shortfall, draw money up from Common Good Fund)

$2,514,000        aggregate for Common Good Fund (for health and welfare of retired players, and to backstop the Additional Payment Fund)

$750,000        aggregate for Administrative Expenses (Claims Administrator, Lien Administrator, Judge Keyes; any surplusage to Common Good Fund; any shortfall made up from Common Good Fund)

$6,950,000        aggregate for Attorneys’ Fees and Costs (no additional fees or costs permissible under individual client retainer agreements)

$18,922,000        Total Monetary Benefits (all of the above elements)

        No funds revert to NHL

Testing Benefit:        

All settling claimants who submit Releases and Stipulations of Dismissal are eligible for Testing program reviewed and approved by an expert;  

NHL pays for Testing and for travel costs for Testing if over 100 miles, separately from and in addition to the Monetary Settlement Benefits outlined above

“Blow Provision”

If Effective Date of Settlement (the date all claimants agree to the deal) is not reached within 120 days after Execution Date (the date when all signatories have signed the Settlement Agreement), NHL has option to walk away from the deal.

Liens

• Settlement payments characterized as non-taxable personal injury payments

• Lien Administrator will research lien claims and resolve lien claims, using money from the Administrative Expense Fund.  We have bids out to a few companies.  

• Settling clients indemnify NHL and its many related entities from any lien claims.

Assignments of claims (e.g., assign your claim to someone for fast but short money)

• Generally prohibited; can make application to NHL, but NHL understandably does not want to deal with assignments.

Confidentiality

• Both sides agree that nobody should say anything meaningful until the Effective Date is reached.  

Release and Covenant Not to Sue

• Scope: sweepingly broad releases of all conceivable health-and case-related claims, described with absurd redundancy and strings of nouns so lengthy that analytical vertigo sets in about one quarter of the way through each sentence.

• Released Persons: Not just NHL and its entities, but Testing Administrator, Claims Administrator, NHLPA and a myriad others are “Released Parties.”

• Releasing Persons:  As expected, not just claimant but any person or entity who might conceivably claim through a claimant.

• Broad indemnities of NHL and its entities if somebody decides to bring a released claim or if an unsatisfied lien claimant or someone else does so derivatively.

• Workers compensation claims are expressly excepted from the release.  

• Commercial, business and other disputes unrelated to the “Alleged Injuries, Conditions and Risks” are also specifically excluded from the release.  

• Lawyers for clients executing releases are themselves required to execute certifications that clients are fully advised, know what they are signing.

• Releases become irrevocable on the Execution Date.