cobellsettlement.com
16 February 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:
askelouise@cobellsettlement.com, or send a letter to:
Ask Elouise
Cobell Settlement
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
di scovery, 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.
Best wishes
Elouise