Elouise Cobell, lead plaintiff in the groundbreaking class-action suit Cobell v. Salazar


Ruling on a contentious fee dispute, a federal appeals court on Wednesday upheld an award of more than $3.5 million in fees and interest to a California-based lawyer for his work on a historic class action that led to a federal government payout of $3.4 billion to hundreds of thousands of Native Americans.

With its ruling, the U.S. Court of Appeals for the District of Columbia found that a lower court made the right call when it awarded Mark Brown $2.88 million in fees, plus a little less than $736,294 in prejudgment interest. The D.C. Circuit’s opinion punctuates a fee dispute that pitted Brown against other plaintiffs lawyers in a long-running legal saga over the federal government’s management of Native American land trusts.

The appellate decision also resolves what’s likely one of the final pieces of an underlying class action accusing the U.S. Department of the Interior of mismanaging government trust funds for hundreds of thousands of Native Americans. The case is often referred to by the shorthand, Cobell, after lead plaintiff Elouise Cobell, who died in 2011, some 15 years after she sued the U.S. Interior Department in 1996.

The class action eventually resulted in a historic $3.4 billion class action settlement, which was struck in 2009 and later secured final approval despite some opposition, according to court records. In connection with the settlement, lawyers who represented Cobell and other Native American class members, led by a team from Kilpatrick Townsend & Stockton and Washington-based solo practitioner Dennis Gingold, were awarded $99 million in legal fees.

Following that resolution, Brown—who had been on the plaintiffs’ legal team from March 2000 to January 2006—intervened in search of compensation for his time on the case. In his appellate brief, Brown said he offered “loyal” service to the Native American plaintiffs but that, around 2005, his relationship with his co-counsel began to sour as a growing number of Kilpatrick Townsend lawyers came on board and Gingold allegedly began cutting Brown out of projects.

Brown initially urged a lower court judge to award him a little more than $5.5 million, representing more than 11,615 hours on the case at an hourly rate of $475 but later upped the request based on a rate of $568 per hour. In response, the other plaintiffs lawyers argued that Brown deserved no fees at all because, they said, he effectively abandoned the case without telling his co-counsel or the plaintiffs and moved back to California after living in Washington for his time on the Cobell litigation.

Ultimately, U.S. Magistrate Judge G. Michael Harvey ruled on the fee dispute, awarding Brown fees based on a $350 hourly rate, which was the amount cited in his engagement letter when he joined the case in 2000. The magistrate judge also awarded interest to Brown.

On appeal, the two sides made arguments similar to those they had presented to Harvey—Brown pushed for an award based on a higher hourly rate, while Kilpatrick Townsend argued that the lower court should have denied his request for fees.

A lawyer representing Brown on appeal, Stephen Larson of Los Angeles-based Larson O’Brien, said he had “nothing but positive things to say” about the D.C. Circuit’s conclusion. He noted that, while Brown had sought a slightly higher fee on appeal, the court’s affirmance of the fee award and the prejudgment interest means his client got nearly all he was asking for. Larson also praised the appeals court for upholding what, he said, was a well-reasoned lower court ruling.

“We’re pleased with the court’s decision,” said Larson. “We believe, fundamentally, that Judge Harvey gave a very thorough and thoughtful ruling when he considered this issue in the trial court.”

Adam Charnes of Kilpatrick Townsend, who argued the appeal for the firm, declined to comment.

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