D.C. judge chides Cobell lawyers for trying to squelch appeal

By Alison Frankel
October 6, 2011

The $3.4 billion Indian trust land settlement known as Cobell has been one of the most hotly-litigated and longest-running class actions in history. It took almost two decades for lawyers representing hundreds of thousands of Native Americans with land held in trust by the U.S. Department of the Interior to win recompense for their clients. Even then the settlement wasn’t final until Congress signed off and Washington, D.C., federal judge Thomas Hogan approved the deal on June 21.

So you can certainly understand why the lawyers representing the class members who have waited so long for justice weren’t happy that Ted Frank of the Center for Class Action Fairness filed a notice of appeal of Judge Hogan’s ruling to the U.S. District Court for the District of Columbia Circuit in August. Frank, who represents an objector named Kimberly Craven, has argued that the Cobell settlement suffers from the same problems that led the U.S. Supreme Court to overturn the certification of a class of female Wal-Mart employees in the Dukes case — a decision handed down the same day Judge Hogan approved the Cobell settlement. Frank and Craven aren’t exactly beloved for standing in the way of billions of dollars going out to allegedly victimized Native Americans, but Frank told me Thursday that his client’s appeal is a matter of principle: No matter how righteous the cause, the process must be legitimate.

That’s little solace to class counsel, who reacted with dismay to Craven’s notice of appeal. “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,” the class brief said. “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,” wrote class lawyers Dennis Gingold and Keith Harper and Michael Pearl of Kilpatrick Townsend Stockton. It was a heartfelt argument, and all the more so because, according to the Cobell lawyers, Craven has tried to block this settlement in both Congress and the courts, and has managed to rally almost none of the nearly half-million class members to her cause.

The Cobell lawyers came up with a clever strategy to head off Craven’s appeal: They asked the court to order her to post an $8.3 million bond ($34,500 in photocopying costs; $2.5 million in attorneys fees; $3.1 million in lost interest; and $2.6 million in increased settlement administration costs). They said such a bond — which Craven couldn’t afford — is common practice in the D.C. Circuit.

Except that it’s not, according to a ruling Wednesday by Judge Hogan. In a stern 16-page opinion, the judge refused to order Craven to post bond, finding that the Cobell plaintiffs had misstated precedent on what should be included in a bond posted pending an appeal. According to the judge, the only cost for which Craven is responsible is photocopying — and he estimated the class’s costs for that are more like $200 than $34,000.

Moreover, Judge Hogan ordered Cobell class counsel to account for their apparently deceptive brief. “While the court is sympathetic to the plaintiffs’ concern that the appeals will delay the administration and distribution of the settlement to so many people who have waited so long for justice, 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,” he wrote. “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.” The judge said he would not impose sanctions yet, but ordered class counsel to file a declaration addressing a laundry list of misstatements in their briefs.

I left messages with Gingold and Harper but didn’t hear back.

Frank said he’s glad Judge Hogan wouldn’t let the class lawyers squelch his client. “They’re so used to getting what they want in this case. It’s nice to see the judge wouldn’t let them get away with this attempt to steamroll an objector.”

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