Ask Elouise week of February 14, 2010
February 16, 2010
Dear Indian Country
As many of you know, on December 7, 2009, we signed a settlement agreement with the government which marked the first step toward resolving the long running Cobell class action lawsuit. Since that time, I've been asked hundreds of questions about the case and the settlement agreement. I can't answer every question in one letter, but I am committed to writing an open Ask Elouise letter every week answering many of your important questions. If you have a question, send an e-mail to: firstname.lastname@example.org, or send a letter to:
PO Box 9577
Dublin, OH 43017-4877
When will I receive my funds? It depends on when Congress passes legislation implementing the settlement and it is finally approved by the courts. The settlement agreement provides that the first payments should begin shortly after final approval and will continue for at least six months pursuant to Court order. I know many of you are concerned that it may take years to receive your share. That isn't true. We have designed a formula to ensure that won't occur.
When will the settlement be finally approved? After legislation is passed, the district court will schedule a hearing to consider the settlement and decide whether to grant Preliminary Approval of the settlement. At that point, there will be a 2 - 3 month period where notice will be provided to class members after which a "Fairness Hearing" will be held so that the Court can hear any objections to the settlement. If the judge deems the settlement fair, then he will issue an order of "Final Approval." The court of appeals may then consider any appeal from class members. If there is no appeal, payments should begin sixty days following Final Approval. If the court of appeals accepts an appeal, payments could be substantially delayed.
When will Congress pass legislation approving the settlement? I don't know when Congress will pass legislation. The parties agreed to extend the settlement agreement to February 28, 2010. I'm hopeful that legislation will be passed by then, but it might not happen. If it does not happen, I'll consult with our attorneys about our options.
How much will the attorneys be paid? The Court will determine attorneys' fees, but the attorneys have signed a separate agreement with the government agreeing to not ask for more than $99.9 million. This is less than 3% of the settlement funds - a very low percentage for attorneys in class action lawsuits. Consider that attorneys representing tribes under Indian Claims Commission Act generally received 10% as mandated by statute and attorneys involved in suits related to Enron received 9.5% (almost $700 million). Many medical malpractice attorneys receive over 30%; and, the tobacco attorneys received billions of dollars and very few did more than file a complaint in order to immediately negotiate a settlement. Most cases don't even involve discovery, let alone go to trial, but our attorneys have prosecuted seven major trials in this case, litigated countless appeals, filed thousands of papers and reviewed tens of millions of pages of discovery without receiving due compensation for their services. I fully support the fee application. It is in fact unusually low for attorneys involved in complex, heavily litigated class action lawsuits. Frankly, I am concerned that if the legal fees for our attorneys are unreasonably low that will discourage competent lawyers from future representation of Native Americans in class action litigation against the government. It is also important to recognize that members of the class will have an opportunity to inform the Judge if they oppose the fee award.
How much will the named plaintiffs receive? The Court will also determine amounts to be paid to the named plaintiffs for their time and costs, also called "incentive payments." This case was funded in large measure by the Blackfeet Reservation Development Fund ("BRDF"), a grass roots community development organization which assists Indian communities understand their trust assets. I have also given a significant amount of money to the case out of my personal funds. Funds were used to pay for experts, class communications and costs related to the prosecution of this case. During settlement negotiations, we estimated that these costs were in the range of $15 million. To date, very few of BRDF's costs have been reimbursed and I have never been reimbursed for funds that I've contributed to the prosecution of this case. No tribe has ever given money for this case.
In future Ask Elouise letters, I'll answer questions about how much you can expect to receive if the settlement is finally approved as well as questions related to the damages class included in the settlement agreement. Thank you for your commitment and patience during this long and difficult process.