Former Senator Byron Dorgan of North Dakota, who championed a landmark settlement to resolve a Native American class action in Washington, today called the plaintiffs’ lawyers demand for at least $223 million in fees "shameful."
Dorgan, now a senior policy adviser at Arent Fox in Washington, said the settlement set out sufficient compensation for the team of lawyers representing lead plaintiff Elouise Cobell.
The $3.4 billion settlement, announced in December 2009, provides compensation to potentially hundreds of thousands of Native Americans for the government’s mismanagement of individual trust accounts stemming from the use of land for oil, gas and minerals. The suit was filed in June 1996.
Under the terms of the agreement, the plaintiffs’ attorneys, including a group of Kilpatrick Townsend & Stockton lawyers and D.C. solo practitioner Dennis Gingold, agreed to a range of fees between $50 million and $100 million. The settlement said the presiding judge, Thomas Hogan, has the final say on fees.
Gingold was not immediately reached for comment this afternoon. Kilpatrick partner Keith Harper in Washington also was not immediately reached.
In an interview, Dorgan called the fee demand from the plaintiffs’ lawyers “shameful,” saying that “every dollar from the settlement that goes to the lawyers is a dollar that is taken away from the victims.”
“For the attorneys to argue for this amount of money now undermines the very interest of the victims they were representing,” Dorgan said. “It just makes me angry. There were real victims hurt in this case. This should not be, in the end, how much the lawyers get.”
Dorgan, who co-chairs Arent Fox's government relations practice, said he hopes Hogan “will slam the door shut quickly on this.” Dorgan (above, with Cobell) said the $223 million fee request “is not a level that is acceptable and it’s not a level that was contemplated by the agreement.”
Cobell’s attorneys justify the request for at least $223 million on several grounds. One, the lawyers argue there was never a “cap” on fees because the presiding trial judge has the final say and can award any amount—or no money—he sees fit.
The plaintiffs’ lawyers also argued in court papers that the fee is justified given the length and complexity of the case. The $223 million amount is rooted in a contingency fee arrangement between the plaintiffs and their lawyers. Cobell’s lawyers contend that $223 million in fees would be on the low end of the compensation scale for lawyers who handle complex, prolonged class actions. (The plaintiffs' fee petition is here.)
The U.S. Justice Department this week is expected to file the government’s opposition to the plaintiffs’ legal fee demand.
Emily Lawrimore, a spokeswoman for Sen. John Barrasso (R-Wyo.), who wanted to cap legal fees at $50 million, said in an e-mail this afternoon that the settlement included “extremely generous” compensation for the plaintiffs’ attorneys.
“They agreed not to ask for more than $99.9 million in attorneys’ fees, and that was the message they sent to Congress and Indian Country before the settlement bill was signed into law,” Lawrimore said. “Every extra dollar the lawyers receive will mean less money reaches the folks who need it most in Indian country.”