Numerous student athletes have filed putative class actions against the NCAA and its member institutions for injuries resulting from concussions sustained while playing college sports, some of which have been consolidated into an MDL.  The MDL court recently denied certification of several Rule 23(c)(4) issues classes based on the plaintiffs’ earlier waiver of the ability to seek certification of a 23(c)(4) class.  See In re NCAA Student-Athlete Concussion Injury Litigation—Single Sport/Single School (Football), 2024 WL 1242987 (N.D. Ill. March 22, 2024).

The MDL followed an earlier medical monitoring settlement resolving claims based on concussions sustained by student-athletes at NCAA member institutions.  The settlement released most class claims but excluded “personal or bodily injuries class claims brought on behalf of a class of persons who allege injury resulting from their participation in a single NCAA-sanctioned sport at a single-NCAA member school.”  The MDL consisted of 580 putative class actions falling in this exception.  To test the viability of these class claims, the parties agreed to work up four bellwether cases for class certification.  After several years of discovery, the plaintiffs decided against seeking certification of damages classes and instead moved for certification of issues classes under Rule 23(c)(4). 

The court denied the motion, concluding that the medical monitoring settlement agreement released plaintiffs’ right to pursue issue certification.  The court noted that the exception applied only to “claims” brought on behalf of a single sport/single school class, not “issues.”  The court held that pursuing a class “claim” was different than pursuing a class “issue” because a “claim” is a “demand for money, property, or a legal remedy to which one asserts a right.”  Resolving a disputed issue between the defendant and the class, without determining what remedy is appropriate, did not meet that definition.  The court also found that the proposed issues classes did not satisfy the predominance or superiority elements of Rule 23(b)(3).  Each putative class spanned 52 years, which would require plaintiffs to present individualized evidence about concussion-related practices and policies throughout the entire period.  It would also require the court to divide the 52-year period into subclass periods during which those practices and policies were consistently applied.  The court found that the benefit of potentially resolving a handful of class-wide questions would not outweigh these and other challenges.

This latest ruling underscores that issue classes are not a loophole to the stringent requirements of Rule 23(a) and (b). 

Photo of Jonah Panikar Jonah Panikar

Jonah Panikar is an associate in the firm’s Washington, DC office. He is a member of the Litigation and Investigations and Class Actions Practice Groups.

Photo of Isaac Chaput Isaac Chaput

Isaac Chaput is a commercial litigator who handles complex civil disputes including class action cases, arbitrations, and investigations. They have experience in trademark, trade secret, patent, antitrust, False Claims Act, breach of contract, and other commercial matters.

Isaac works with clients across a…

Isaac Chaput is a commercial litigator who handles complex civil disputes including class action cases, arbitrations, and investigations. They have experience in trademark, trade secret, patent, antitrust, False Claims Act, breach of contract, and other commercial matters.

Isaac works with clients across a range of industries including technology, consumer products, pharmaceuticals, and payments, using their substantive experience in all stages of litigation, including trial and appeals in both federal and state court. In addition, Isaac maintains an active pro bono practice, including representing a leading national organization dedicated to reducing gun violence.

Earlier in their career, Isaac was the Legal Intern to Nina Totenberg at NPR, assisting Ms. Totenberg in her reporting on the Supreme Court of the United States.