The plaintiffs' lawyers handling a landmark Indian trust case in Washington say their argument that they deserve at least $223 million in legal fees should not come as a shock to critics in Congress who are now seeking to cap their compensation.
Congress was informed last year that the presiding judge in the class action has the final say on fees for the lawyers representing lead plaintiff Elouise Cobell, the attorneys said in court papers filed Monday night in the U.S. District Court for the District of Columbia.
The plaintiffs’ lawyers agreed in the settlement not to argue for more than $99.9 million in fees. In their fee petition, the attorneys asserted $99.9 million, keeping with the terms of the settlement agreement, but argued that they deserve at least $223 million in fees.
Monday night’s submission [.pdf] from the attorneys, including Kilpatrick Townsend & Stockton partner Keith Harper and Washington solo Dennis Gingold, is a response to the Justice Department’s opposition to a fee award of $223 million. DOJ wants Senior Judge Thomas Hogan to grant no more than a $50 million award to Cobell’s lawyers.
Last week, two Republicans members of the House, citing the Justice Department’s position on fees, introduced legislation to cap fees in Cobell v. Salazar at $50 million. A similar effort to cap the fees failed last year.
“There is simply no question that members of both houses of Congress fully understood that there was no cap and that the court would decide the fee question consistent with controlling law,” Harper and Gingold said in the court papers. “Those who are feigning surprise know better or should know better.”
Cobell’s lawyers said they accomplished for Native Americans what no other lawyer or government official ever had—meaningful reform in the management of Indian trust accounts. The $3.4 billion settlement announced in December 2009 resolves claims the government botched its handling of accounts for more than a century.
In an interview today, Harper said he is not surprised that some members of Congress—Doc Hastings (R-Wash.) and Don Young (R-Alaska) co-sponsored the fee cap bill—are pouncing on the plaintiffs' fee petition.
“For some politicians on the more conservative side, it’s easy to demagogue plaintiffs’ lawyers,” Harper said. “It’s an easy political shot to take with few consequences.”
Harper said the demand for $223 million in legal fees is rooted in “our signed, executed longstanding agreements with the plaintiffs.” The fee request stems from a 14.75% contingency agreement with the plaintiffs, Harper said. Cobell's lawyers said the demand comports with controlling law and is on the low end of the scale for attorney compensation in mega-fund cases.
The plaintiffs have not included the agreement in the record in the case, and Harper said the plaintiffs’ team should not be required to submit the document. Harper said contingency fee documents are not typically made a part of the official record in class actions. “Is there a reason to treat this case different from other cases? In our mind, there isn’t,” he said.
Harper and Gingold, who have both traveled in recent weeks to meet with potential beneficiaries, said the fee petition is not the hot topic. Potential class members want to know more about how to participate in the settlement, not how much the lawyers are getting paid, Harper said.
Still, he said there have been a handful of questions about fees. But the dialogue, Harper said, has not been hostile. “I think beneficiaries understand that to get attorneys dedicated to working on a matter, as they were in this case, they ought to be compensated fairly. They get that point.”