The lawyers suing the government in the Indian trust litigation in federal district court in Washington agreed to a range of legal fees that is well below the norm for class actions in hope of making the deal more palatable to the class, a lead attorney for the plaintiffs said.
The Justice Department earlier this month reached a tentative settlement with the plaintiffs in Cobell v. Salazar, a suit that has dragged on for more than 13 years with no end in sight. The more than 300,000 class members are seeking an historical accounting of the government’s handling of billions of dollars in royalties flowing from Indian land.
The $1.41 billion settlement, a far cry from the billions the plaintiffs had been seeking, requires authorization from Congress—and, ultimately, approval from the presiding trial judge, James Robertson, in the U.S. District Court for the District of Columbia. Justice attorneys and counsel for the plaintiffs say Robertson was integral in supervising settlement negotiations, which ramped up in July following an appellate court ruling that kicked the case back to the trial court.
The plaintiffs lawyers, including a team of Kilpatrick Stockton attorneys and D.C. solo practitioner Dennis Gingold, agreed to argue for fees in the range of $50 million to nearly $100 million—roughly between about 3 and 7 percent of the $1.4 billion settlement. The lawyers in the case declined to say whether they asked for more than $100 million. Class action lawyers in Washington have said that the Cobell case—based on the length and complexity of the litigation—could have earned the lawyers more than $100 million.
Sen. John Barrasso (R-WY) raised the question of legal fees at yesterday’s Senate Indian Affairs Committee oversight hearing. Convincing the class members to support hundreds of millions in attorney fees could have proven a challenge.
“I think all parties understand that the norm award in most class actions would be higher than the range. The parties had discussions about it and agreed to this range. We think that the interest of the class is served by it,” said Kilpatrick Stockton partner Keith Harper, a lead attorney in the case (pictured above, next to lead plaintiff Elouise Cobell). “Obviously there is concern about attorneys fees. I think it’s fair to say this is well below the norm. But we felt it was important to make sure that nothing held up the deal for the class. That’s got to be our singular focus. That has always been our focus.”
Harper said there has been a “great risk for a large firm to put in this much money of an investment over this kind of length of time.” Kilpatrick partners have said that the firm has invested tens of millions of dollars in the case.
“I think we made a commitment to Ms. Cobell and we made a commitment to the class that we going see this to the end,” Harper said in an interview. “I’ve not had a single one of my partners ever ask me whether or not we should abandon it or anything like that. They’ve all been unanimously supportive. I’m happy to be with this firm because of that. We made a commitment and we carried it out.”
Cobell’s lawyers and the Justice Department negotiating team, including Associate Attorney General Thomas Perrelli, did not ultimately agree on attorneys fees. Perrelli acknowledged Barrasso’s concern about fees but said that litigating the case any longer potentially exposed the government to paying a greater dollar amount.
“We agreed on a process for litigating it, but the judge has discretion to do what he wants,” Perrelli (pictured to the left) said in an interview after the hearing. “The court can choose whatever fee it wishes to choose, and individual plaintiffs in the class can come in and say whatever they want.”
The payment of legal fees was “a central issue of concern for us as we drove down to the final goal line on reaching this settlement,” Interior Department Secretary Ken Salazar said at the hearing.
Cobell has called the dollar amount in the settlement unfair. But she has repeatedly said that the class feels compelled to settle now, rather than continuing the litigation to achieve a potentially greater monetary victory, because the class is growing smaller as elders die. The suit has been simmering--boiling at times--since 1996.
At yesterday’s oversight hearing, which lasted about 90 minutes, Cobell said she was skeptical that the opposing sides could reach a settlement. Settlement talks over the years have repeated failed as the sides remained far apart on dollars and cents. In July, the U.S. Court of Appeals for the D.C. Circuit rejected a $455.6 million deal and tossed the case back to the trial court.
Senate Indian Affairs Chairman Byron Dorgan (D-ND) asked Cobell about the reaction from the plaintiffs to the settlement. “I assume there are differences of opinion. How significant are those differences?” he said.
“Well, I think out of every 10 people that I hear from it’s maybe one that is negative,” Cobell responded. By and large, she said, people she’s talked with have been supportive. “Everybody’s been ecstatic. I go into the grocery store and everybody runs and shakes my hand and thanks me for fighting for justice for them.”
Beyond the issue of attorneys fees, Cobell’s lawyers say they are “cautiously optimistic” that Congress will pass legislation by Dec. 31 to authorize the settlement. The House has gone into recess, and the Senate is consumed in debate on health care reform.
“I’m a little concerned about going back home and telling everybody again, well, sorry, we’re going to be delayed again,” Cobell said. “People just get tired of that.”
Dorgan said in a brief interview after the hearing that he does not know yet how the legislation will be introduced. “We’ve got to find a vehicle. My hope is that it can be done. I hope this can be done by the end of the year,” Dorgan said. “That will be the responsible thing to do.”
Cobell’s lawyers and the Justice attorneys can mutually agree to extend the congressional authorization deadline. Kilpatrick’s Harper defended the squeeze on Congress, saying that the plaintiffs did not want to put off approval of the deal months down the road. Harper noted that a petition for certiorari—challenging the recent D.C. Circuit opinion—is due next week.
“We wanted to send the message the further you go out the calculus changes. New things can occur,” Harper said. “We want to emphasize to all parties that this deal was based on a certain timeline. If there is a change in the timeline then there may have to be … some pieces that get negotiated depending on how far out we go.”