Thursday, January 13, 2022

EXCLUSIVE: NFL Concussion Deal Masters Say Atty Fabricated Evidence

Law360 (July 13, 2021) -- A Florida attorney accused of swindling NFL players out of their life savings also "engaged in a wide-ranging, long-standing, and brazen pattern and practice of manufacturing evidence" for concussion settlement payout claims, the settlement's special masters found in a recent decision to disqualify the lawyer and his former firm.

In the decision, a copy of which was obtained by Law360 and independently authenticated, the special masters found that attorney Philip Timothy Howard, who often goes by Tim Howard, and his firm Howard & Associates fabricated medical reports, directed doctors to falsify medical reports and altered other material facts as part of claims to be submitted for payouts from the uncapped concussion settlement fund.

The decision, dated June 22, has not yet been disseminated publicly but was referenced by the claims administrator, BrownGreer PLC, in court papers.

The BrownGreer law firm is to share the decision and the full record of the audit with "federal criminal authorities," according to the decision signed by special masters David A. Hoffman and Jo-Ann M. Verrier, both professors at University of Pennsylvania Carey Law School.

The decision came as part of an audit by BrownGreer, which as claims administrator is tasked with rooting out fraudulent settlement claims.

"Howard & Associates misrepresented, omitted, and concealed material facts in connection with claims that may have been submitted to the claims administrator," the special masters found. "In fact, it is precisely material facts that Howard & Associates went to tremendous lengths to alter."

As a result, the special masters disqualified Howard and the former employees of Howard & Associates from "participation in the settlement program," including barring them from recruiting settlement class members, preparing claims for submission and appealing claims.

In an email to Law360 this week, Howard said his firm never submitted any claims.

"No claims were ever submitted by [Howard & Associates], and no materials from 'draft' attorney work product development of claims prior to claims facility being created were ever submitted by [Howard & Associates]," Howard said in the email. "Nothing was fabricated and nothing could be."

Howard was the subject of a 2019 Law360 investigation detailing allegations that he swindled former players into handing over their savings to a sham investment firm on promises they would make the money back with NFL settlement payouts. In September, he agreed to pay a nearly $400,000 civil penalty as part of a consent agreement with the U.S. Securities and Exchange Commission. He did not admit or deny allegations as part of the agreement.

Howard is further facing an April recommendation of disbarment by a court-appointed referee in a pair of consolidated disciplinary cases against him in Florida over his professional conduct in unrelated matters.

According to the special masters' decision, BrownGreer believes that at least 22 claims submitted were "compiled, at least in part, by Howard & Associates" and that the "premise of Howard & Associates' argument — that the firm never successfully submitted a claim — is inaccurate."

"Although Howard & Associates is not the named attorney on any claim packages, it has worked on claims submitted to the settlement and has been paid as a result of work done in connection with those claims," the decision said.

The decision noted that Howard had argued in a fees dispute last year that Howard & Associates had fronted costs for a client whose claim was ultimately submitted by another firm, Shenaq PC.

A magistrate judge, "without having the benefit of the facts uncovered in this audit," awarded Howard & Associates nearly $260,000 in fees, which are now being held in "abeyance," according to the special masters' decision.

Orran Brown of BrownGreer confirmed that the claims administrator understands the special masters' decision to mean that neither Howard nor former employees of Howard & Associates may work on claims in any capacity, even if Howard or the firm, which is no longer in operation, does not appear as the attorney of record.

In an April response to the audit process filed in Pennsylvania federal court, Howard argued that the doctors in question were not used in final claims submissions and asked that the auditors and special masters be removed for allegedly violating due process and standards of impartiality.

"What is more illogical is to open an audit based on toxic narratives from a 'bottom feeder' cabal of extortioners, criminals, confidence game operators and legal legerdemain opportunists," Howard wrote in the filing on April 9.

Last week, BrownGreer told the court in the Eastern District of Pennsylvania, which is overseeing the settlement's administration, that it was looking into whether Howard and former employees of his firm are trying to stay connected to and get paid for work on submitting claims for settlement payouts through another firm, Collins & Truett Attorneys PA, which took over some of Howard's former NFL player clients.

Collins & Truett has denied the allegations that Howard is continuing to work on the settlement claims. Instead, the firm has alleged the auditors hacked its email servers to obtain confidential attorney work product, according to a lawsuit filed last month in Florida state court.

BrownGreer on Monday removed the Collins & Truett lawsuit to Florida federal court and asked to have it transferred to the Pennsylvania court overseeing the settlement.

The issue arises amid a bumpy and oft-criticized administration of the bottomless settlement, which is meant to pay former NFL athletes or the families of former players who have suffered from a range of degenerative brain conditions connected with brain injuries in football, including dementia, Alzheimer's disease and Parkinson's disease.

The NFL has claimed there is rampant fraud in the settlement claims, while former players have alleged legitimate claims have been unreasonably delayed or outright denied after they received qualifying diagnoses.

The concussion settlement case is In re: National Football League Players' Concussion Injury Litigation, case number 2:12-md-02323, in the U.S. District Court for the Eastern District of Pennsylvania.

The Collins & Truett case is Collins & Truett Attorneys PA v. Petkauskas et al., case number 4:21-cv-00286, in the U.S. District Court for the Northern District of Florida, removed from case number 2021-CA-001049, in the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida.

--Additional reporting by Ryan Boysen. Editing by Jill Coffey.