A recent BLT Blog story, “Plaintiffs’ Lawyers: Fee Cap in Cobell Suit Conflicts with Law” reports that the nearly $100 million legal fee cap in a landmark class action in Washington is less than half of the amount the plaintiffs’ attorneys could have received through a contingency fee arrangement, the attorneys for lead class member Elouise Cobell said in court papers.  The plaintiffs’ lawyers, representing a class of Native Americans, agreed in the settlement to a range of fees between $50 million and $99.9 million—money that will be cut from the roughly $1.5 billion in compensation for potentially hundreds of thousands of beneficiaries.  The suit, filed in 1996, challenged the government’s mismanagement of billions of dollars of trust fund assets stemming from private use of Indian land.

The fee cap is a far cry from what plaintiffs’ attorneys call “fair compensation” for a complex civil case that has dragged on in Washington’s federal trial court with no end in sight.  The attorneys, including Washington solo practitioner Dennis Gingold and Kilpatrick Stockton partner Keith Harper, argue that more than $223 million in attorney fees is appropriate.  Government lawyers, however, insist that class counsel not be paid more than $99.9 million in attorney fees and expenses through December 2009, when the parties reached a settlement.

The $223 million represents the compensation from the contingency fee arrangement the plaintiffs’ attorneys executed before the settlement was announced in December 2009.  The attorneys expected a 14.75% cut from any funds created for the class members.  The plaintiffs believe that the contingency fee agreement is consistent with controlling law and that the attorney fees structured in the settlement are “at odds with the executed fee agreements and controlling law.”  The lawyers for Cobell said controlling law holds that the percentage-of-recovery methods is the government standard.

CLICK HERE for a copy of the plaintiffs’ fee notice.