The U.S. Court of Appeals for the D.C. Circuit has agreed to expedite a challenge to the $3.4 billion Native American class action settlement that a trial judge declared fair and reasonable.
At the request of the Justice Department, the plaintiffs' lawyers and the objector to the deal, the appeals court said Tuesday it will accelerate resolution of the dispute. The D.C. Circuit could hear the appeal as early as January.
The lawyers for lead plaintiff Elouise Cobell said 92 class members objected to the settlement, which addressed claims of decades of government mismanagement of Indian trust accounts. Senior Judge Thomas Hogan of Washington federal district court issued final judgment, approving the settlement, in August.
Several class members who did not object in a timely fashion to the deal want the appeals court to review the settlement. Only one class member, Kimberly Craven, has presented the D.C. Circuit claims that were filed in a timely way in the district court, according to the plaintiffs’ legal team.
“This appeal is brought by a single timely objector out of a 500,000 member class,” Cobell’s attorneys said in court papers (.pdf) filed this week in the D.C. Circuit. The appeal, the attorneys said, “effectively stays the payment of billions of dollars to individual Indian trust beneficiaries who desperately need those funds.”
Cobell’s lawyers, including Washington solo Dennis Gingold and Kilpatrick Townsend & Stockton partner Keith Harper, said in a filing (.pdf) that Craven’s appeal “is a political crusade to deter trust reform.”
“Because Craven failed to block this settlement politically, she now wants to kill, or at least seriously delay, the settlement through appeal,” Cobell’s attorneys said.
Craven, represented by Theodore Frank of the Center for Class Action Fairness, in Washington, said in court papers (.pdf) the issues in the dispute include the $2.5 million incentive award to certain class members and class commonality issues in light of the U.S. Supreme Court’s ruling in Wal-Mart v. Dukes.
In a court filing Sept. 12, Frank said the D.C. Circuit “will be the first one to address these important constitutional issues affecting the rights of hundreds of thousands of Indians.”
The appeal, Frank said, centers on questions of law that will not require the D.C. Circuit to examine the factual record of the dispute. Frank represents Craven pro bono.
“The Center does not object indiscriminately,” Frank said in a declaration (.pdf) in Washington’s federal trial court. “It evaluates many more settlements than it objects to, and regularly rejects inquiries where it does not feel it has a good chance of establishing precedent generally useful to class members in future litigation.”
Frank said in the declaration that the appeal is “brought in good faith. The issues Ms. Craven wishes to raise in her appeal are not only non-frivolous, but have been adopted by other appeals courts or the Supreme Court, and are of great importance to the law of class action settlements.”