The lawyers who represented a class of African American farmers in a suit against the government that claimed loan discrimination are requesting $90.8 million in legal fees, the maximum allowed under the terms of a settlement.
The three lead class attorneys in the case said in a fee petition (PDF) filed Monday night in Washington federal district court that class counsel is entitled to 7.4% of the $1.25 billion settlement. (The settlement base is about $1.22 billion after $22.5 million is taken for implementation costs.)
The attorneys, Gregorio Francis of Morgan & Morgan, Andrew Marks of Crowell & Moring and Henry Sanders of Selma, Ala.’s Chestnut, Sanders, Sanders, Pettaway & Campbell, said lead class counsel will allocate the award among the dozens of lawyers who participated in the litigation.
The settlement awards potentially tens of thousands of black farmers who did not file claims in time in an earlier version of the loan discrimination litigation. Class counsel said more than 60,000 farmers were so-called “late filers.”
More than 28,000 farmers, represented by 25 law firms, filed 17 complaints in Washington federal district court between May 2008 and February 2010. The civil actions were consolidated. Earlier this year, U.S. District Judge Paul Friedman granted preliminary approval of the settlement, which was reached in February 2010.
The settlement sets out a fee range of 4.1% to 7.4% of the $1.25 billion deal. Lawyers representing claimants on a certain track are allowed, apart from the settlement, to negotiate a contingent fee arrangement of up to 8%. The lead attorneys said they expect the vast majority of farmers will use class counsel to process claims.
Marks, Francis and Sanders, the lead attorneys, said in the fee petition that class counsel “have incurred substantial out-of-pocket costs” and will not receive payment until at least late next year or later.
“The work effort of class counsel in this case has already been enormous,” the plaintiffs’ lawyers said.
The attorneys in the case reported more than 40,000 hours and 60,000 paralegal hours. Class counsel estimated they would spend tens of thousands or more hours in the next year to 18 months working on the implementation of the settlement. Lawyers in the case are planning meetings in more than a dozen states where significant numbers of class members are located.
“Without the experience and expertise of all of the Class Counsel firms working together on the various facets of this case, Class Members would not be in a position to finally receive the adjudication of their Pigford claims that they have sought for so long,” lead class counsel said.
Class counsel said the 7.4% request is less than the 8% that U.S. District Judge Emmet Sullivan awarded in April to a group of lawyers who represented a class of Native American farmers and ranchers in Keepseagle v. Vilsack. In that case, the plaintiffs’ lawyers received $60.8 million in fees—the maximum under a settlement.
Senior Judge Thomas Hogan recently awarded $99 million to the class lawyers in a landmark Indian trust case that dragged on in federal district court in Washington for more than a decade.
The lawyers in Elouise Cobell v. Salazar, including Washington solo Dennis Gingold and a Kilpatrick Townsend & Stockton team, had said more than $223 was appropriate. The settlement set out a fee range between $50 million and $99.9 million. The deal, however, left the trial judge with the final word.
There is still a pending dispute in the Cobell suit over payment to lawyers who were not included in the class counsel fee petition. More than $13.6 million could be withheld from class counsel to pay for the work other lawyers performed in the case, Hogan said in an order in July. Gingold and co-class counsel could end up with nearly $85.4 million.
In the black farmers case, the participation agreement (PDF) among the lawyers in the case includes a dispute resolution clause that will require disagreements about fee allocation to be submitted to binding arbitration.
The agreement said nine law firms are entitled to split 75% of any legal fee award. The firms in Washington are: Crowell, Stinson Morrison Hecker, and Conlon, Frantz & Phelan. Nine other firms, including Patton Boggs, are entitled to divide 25% of the award.
In the coming weeks, the Justice Department is expected to respond to the fee petition. A Justice spokesman was not immediately reached for comment on the $90.8 million request from the plaintiffs’ lawyers.