The plaintiffs' lawyers demand for at least $223 million in compensation for their work on a landmark Native American class action is excessive and goes against promises the attorneys made in a settlement contract, the U.S. Justice Department said in court papers filed late Thursday.
The government is opposing the attorneys' demand for $223 million in fees in Cobell v. Salazar, saying that amount is inconsistent with controlling law. Under the terms of the $3.4 billion settlement, resolving claims of mismanagement of individual Indian trust accounts, the plaintiffs’ lawyers agreed to assert a fee range of between $50 million and $99.9 million, DOJ attorneys said.
“They touted that binding commitment repeatedly to Congress and to class members to persuade Congress to enact legislation and to reassure class members that settlement funds would go to class members, not to excessive compensation of their lawyers,” DOJ Civil Division attorney Robert Kirschman Jr. said in the government’s filing [.pdf]. “Even if class counsel’s demand for fees were not otherwise excessive, it should be rejected out-of-hand for this reason."
DOJ lawyers said the plaintiffs’ attorneys should be limited to a "fair and reasonable" $50 million award. The department’s legal team called $99.9 million “grossly excessive.” Cobell's lawyers described the range as a "clear sailing" provision in which neither party could appeal a fee award.
Kirschman wrote that the plaintiffs’ lawyers—who include Washington solo practitioner Dennis Gingold and a Kilpatrick Townsend & Stockton team in Washington and in Atlanta—in recent years “embroiled the court, class members and the government in a series of wasteful diversions” that included attacks on government officials.
The plaintiffs’ lawyers have been compensated for early success in the case through prior fee petitions, according to the Justice Department. DOJ noted in court papers that $8.9 million has been paid to the plaintiffs’ counsel since 1999.
“Class counsel’s petition asks class members to foot the bill for their years of fruitless digressions from the core issue in the case,” Kirschman said.
The Justice Department also argues the class attorneys are only responsible for a portion of the $3.4 billion settlement—$360 million. That amount, dedicated to compensate accounting claims that Cobell's attorneys litigated, represents the $1,000 that about 360,000 class members will receive, DOJ lawyers said.
The remaining funds, DOJ lawyers continued, “are the result, not of tens of millions of dollars’ worth of work performed by class counsel, but rather the government’s desire to resolve the claims” of account holders.
DOJ lawyers said Cobell’s attorneys “needlessly” complicated the case, prolonging the litigation by years. Cobell’s lawyers’ devotion to “sideshows” and “skirmishing,” Justice attorneys said, ran up costs for both sides.
Cobell’s lawyers said they had a 14.75 % contingency arrangement, and they use that percentage to justify, in part, the demand for at least $223 million in compensation. The Justice Department said it has not seen a copy of the contingency arrangement between the class attorneys and their clients.
The presiding judge, Cobell's attorneys said, has the final authority on fees and therefore there is no minimum or maximum amount that can be awarded. Gingold, a lead attorney for Cobell, was not immediately reached for comment this morning on the DOJ's opposition to the plaintiffs' fee request.