Dan Pastorini Malpractice Suit Against Class Action Firm Hints Settlement Talks Already Under Way With NFL

UPDATE NOTE, 11/27/12

I need to clarify that today’s settlement conference, alluded to below, is in the retirees’ case (with lead named plaintiff Fred Dryer) challenging the NFL’s appropriation of the likenesses of former players in the multibillion-dollar business of spinoff merchandise. Dan Pastorini’s malpractice claim against the Hausfeld firm does not directly bear on the brain injury litigation. It does indirectly bear on it, in the sense that all these cases are interconnected and the reparations distribution is a zero-sum game.

I again recommend that readers of this blog follow legal analyst Paul D. Anderson’s excellent NFL Concussion Litigation site (http://nflconcussionlitigation.com).

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In a potentially explosive turn of events, Dan Pastorini, one of the named plaintiffs in the alpha dog class-action suit against the National Football League by the Hausfeld law firm in Washington, D.C., has filed a malpractice claim against Hausfeld in Texas state court. Dave Pear’s blog links to the full complaint at http://davepear.com/blog/2012/11/dan-pastorini-new-lawsuit/.

I begin my analysis by reiterating that the base game in the new awareness of traumatic brain injury is the future of the sport. By that, I mean football’s off-the-charts popularity and participation at all levels. Claims by retired professionals are very important for themselves and their families, of course, but they are only a game within that game.

Pastorini, the outspoken former quarterback who is dissatisfied with his legal representation, has thrown a touch pass of TNT into the flat of the game within the game within the game.

I am myself an objector of nearly eight years’ standing against a proposed multimillion-dollar copyright infringement settlement between freelance writers and the periodicals and electronic database industries. (The case was known at the U.S. Supreme Court as Reed Elsevier v. Muchnick. We have been in settlement talks with the main parties for much of this year, and hope we have a final settlement soon. For details, see my other blog, http://freelancerights.blogspot.com.)

So I am a semi-seasoned lay observer of class actions and their discontents. As such, I do not share the belief of some others that the current litigation against the NFL has a real chance of bankrupting it. Even if the combined cases take a $10 billion chunk out of the league’s hide – the number is arbitrary and purely hypothetical – the 32 franchises still could collectively absorb that and carry on with their quest for world domination half the year, 8 p.m. Eastern time Thursday through midnight Tuesday morning.

In an earlier era of blockbuster lawsuits impacting the public health debate, tobacco company executives managing billions in payouts, who didn’t smoke themselves, easily mastered their lines about the long-term viability of the “social custom” they were dutifully marketing. As the father of daughters, not sons, who never were in consideration to play football, NFL commissioner Roger Goodell doesn’t even have to worry about the smoking part of that analogy.

In Pastorini’s extremely well-crafted court papers, his immediate material claim is that Hausfeld did not honor an agreement to reimburse him for travel expenses. But the stick of dynamite is the allegation that Hausfeld has ignored repeated attempts by Pastorini to obtain “information and communications with the NFL’s representatives,” and the assertion that the matter is urgent in light of an upcoming status conference in the case on November 27. Which is tomorrow!

Despite Haufeld’s attempt to tar Pastorini as a “professional objector” (I am familiar with this odious tactic), Pastorini is not technically an objector: there is not yet a settlement to which to object. Nonetheless, his preemptive dissidence stings, especially in the passages of the brief where he details Hausfeld’s allegedly unsavory history in representing the interests of classes.

Regardless of what happens to Pastorini’s malpractice claim, the NFL and Hausfeld will be highly suspect if they attempt to announce a settlement of this complex and emotional case in the very near future.

Irv Muchnick