A federal judge in Washington will not require opponents of the $3.4 billion settlement in an Indian trust class action to front any money while they pursue their challenge in an appeals court.
Senior Judge Thomas Hogan of U.S. District Court for the District of Columbia rejected the lead plaintiffs' request that the opponents of the settlement be required to post a bond or other surety worth millions of dollars.
The attorneys for lead plaintiff Elouise Cobell, including Dennis Gingold and a group of Kilpatrick Townsend & Stockton attorneys said the appeal bond would ensure prompt payment of the cost to defend the settlement.
Hogan wasn't persuaded. The judge chided the plaintiffs’ attorneys for making sweeping, unsupported statements in court papers in recent weeks in support of an appeal bond.
“The Court recognizes that sometimes a litigant’s resort to persuasive writing versus objective writing leads to unwitting overzealousness in the presentation of arguments, but the plaintiffs’ motion and reply brief go beyond fair advocacy and border on misrepresentation,” Hogan said in his ruling (.pdf).
In court papers filed on Aug. 23, Cobell’s lawyers said Kimberly Craven, a critic of the $3.4 billion settlement, should be required to post a bond worth more than $8.3 million in order to continue the challenge in the U.S. Court of Appeals for the D.C. Circuit. Cobell’s attorneys said more than $2.5 million of the amount was for legal fees.
No opponent of the settlement, Cobell’s lawyers said, “is entitled to a free pass at delaying justice” for the hundreds of thousands of Native Americans who make up the class. The suit, filed in 1996, sought an accounting of the government’s handling of individual Indian trust accounts flowing from the use of land for timber, natural gas and minerals.
“The delay caused by Craven’s appeal means that more elderly and more infirm class members will pass on without obtaining justice that they deserve,” Cobell’s lawyers said in the court filing (.pdf). “The human cost of Craven’s appeal can never be quantified, and as this Court has found, many of the class members depend on their trust funds for the most basic staples of life.”
Craven’s attorney, Theodore Frank of the Center for Class Action Fairness, said in response (.pdf) that the appeal is not frivolous and that Cobell’s lawyers are exaggerating their costs. Frank alleged Cobell’s request for an appeal bond was brought in bad faith and urged Hogan to sanction the plaintiffs’ lawyers.
In his ruling yesterday, Hogan didn’t hold back on the plaintiffs’ team. Hogan indicated he believed the requested appeal bond amount was excessive.
The judge said he is sympathetic to the plaintiffs’ concern that the appeals will delay the settlement, “that does not translate into a willingness by this court to quietly overlook the misleading case citations and unsupported legal argument throughout the plaintiffs’ motions and reply brief.”
For instance, Hogan criticized the plaintiffs’ lawyers for contending that there are established practices in the D.C. Circuit for appeal bonds. Cobell’s lawyers, in one instance, pointed to a case in which a federal trial judge declined to order a bond.
Hogan said “it goes without saying” that a published decision denying an appeal bond “cannot credibly be cited as establishing a ‘practice.’” The judge said he was “surprised” Cobell’s lawyers cited to cases that don’t help their cause much.
“It is unclear to the Court whether the unsupported arguments and representations in the plaintiffs’ briefs were intentional, the result of carelessness and haste, or otherwise can be reasonably explained,” Hogan said.
Sanctions, the judge said, are not warranted. But he said he ordered Cobell’s lawyers to file a declaration that addresses the concerns he raised.
Gingold and Kilpatrick partner Keith Harper were not immediately reached for comment Thursday evening.
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