Plaintiff`s Motion for an Award of Attorney`s Fees and Expenses

Transcription

Case 1:99-cv-03119-EGS Document 581
Filed 01/14/11 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARILYN KEEPSEAGLE, et al.,
Plaintiffs,
v.
TOM VILSACK, Secretary, United States
Department of Agriculture,
Defendant.
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Civil Action No. 1:99CV03119
(EGS)
Judge: Emmet G. Sullivan
Magistrate Judge: Alan Kay
PLAINTIFFS’ MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND
EXPENSES
For the reasons set forth in the accompanying memorandum of points and
authorities, and consistent with the parties’ proposed revised Settlement Agreement,
Plaintiffs hereby move the Court for an award of attorneys’ fees and expenses pursuant to
Federal Rules of Civil Procedure 23(h) and 54(d)(2), and in accordance with the Court’s
order dated November 1, 2010. See Dkt. No. 577.
January 14, 2011
Respectfully submitted,
/s/ Joseph M. Sellers
Joseph M. Sellers
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Case 1:99-cv-03119-EGS Document 581
Joseph M. Sellers, Bar No. 318410
Christine E. Webber, Bar No. 439368
Peter Romer-Friedman, Bar No. 993376
COHEN MILSTEIN SELLERS &
TOLL PLLC
1100 New York Avenue, N.W.
Suite 500, West Tower
Washington, DC 20005
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
Paul M. Smith, Bar No. 358870
Katherine A. Fallow, Bar No. 462002
Jessica Ring Amunson, Bar No. 497223
Carrie F. Apfel, Bar No. 974342
JENNER & BLOCK LLP
1099 New York Ave., N.W.
Suite 900
Washington, DC 20001-4412
Telephone: (202) 639-6000
Facsimile: (202) 639-6066
David J. Frantz, Bar No. 202853
CONLON, FRANTZ & PHELAN
1818 N Street, N.W.
Suite 400
Telephone: (202) 331-7050
Facsimile: (202) 331-9306
Anurag Varma, Bar No. 471615
PATTON BOGGS LLP
2550 M Street, N.W.
Telephone: (202) 457-6000
Facsimile: (202) 457-6315
Phillip L. Fraas
STINSON MORRISON HECKER
1150 18th St. NW, Suite 800
Telephone: (202) 785-9100
Facsimile: (202) 785-9163
Sarah Vogel
SARAH VOGEL LAW PARTNERS
222 N. 4th St.
Bismarck, ND 58501
Telephone: (701) 221-2911
Facsimile: (701) 221-5842
Attorneys for Plaintiffs
Case 1:99-cv-03119-EGS Document 581-1
Plaintiffs,
v.
Defendant.
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(EGS)
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION
FOR AN AWARD OF ATTORNEYS’ FEES AND EXPENSES
TABLE OF CONTENTS
Page I.
INTRODUCTION AND RELIEF REQUESTED ............................................ 1
II.
BACKGROUND .................................................................................................. 5
A.
The Litigation ........................................................................................... 5
B.
The Settlement Agreement...................................................................... 9
C.
III.
IV.
1.
Monetary Relief............................................................................ 9
2.
Programmatic Relief.................................................................. 11
The Efforts of Class Counsel................................................................. 14
1.
Class Counsel’s Work to Date .................................................. 15
2.
Prospective Work....................................................................... 16
ARGUMENT...................................................................................................... 18
A.
The “Percentage-of-the-Fund” Method Is the Appropriate
Mechanism for Determining Fees in this Case.................................... 18
B.
The Fee Award Sought by Counsel Is at the Lower End of the
Range Applied in Common Fund Cases .............................................. 23
C.
The Award of Attorneys’ Fees and Costs Should be Based on
the Full Amount of Monetary Relief Awardable to the Class ........... 24
D.
The Requested Fee Award Is More than Justified by the
Efforts and Risks Undertaken by Counsel and the
Extraordinary Results Achieved in this Case...................................... 26
1.
Class Counsel Obtained a Substantial Benefit for the
Class ............................................................................................ 27
2.
No Class Members Have Objected to the Fee Provision
in the Settlement Agreement to Date ....................................... 29
3.
Class Counsel Demonstrated Considerable Skill and
Efficiency. ................................................................................... 30
4.
The Complexity and Long Duration of this Case
Support Class Counsel’s Fee Request ...................................... 32
5.
Class Counsel Faced Significant Risk of Non-Payment ......... 33
6.
Class Counsel Devoted Substantial Effort to Achieving
this Settlement ............................................................................ 34
7.
The Award Sought in this Case Compares Favorably
with Awards in Similar Cases................................................... 36
CONCLUSION .................................................................................................. 38
‐i‐ Case 1:99-cv-03119-EGS Document 581-1
TABLE OF AUTHORITIES
Page(s)
CASES
Blum v. Stenson,
465 U.S. 886 (1984).................................................................................................................20
Boeing Co. v. Van Gemert,
444 U.S. 472 (1980).............................................................................................................2, 25
Brytus v. Spang & Co.,
203 F.3d 238 (3d Cir. 2000).....................................................................................................20
Cason v. Nissan Motor Acceptance Corp.,
203 F.3d 238 (3d Cir. 2000).....................................................................................................20
Central States Southeast & Southwest Areas Health & Welfare Fund v. MerckMedco Managed Care, L.L.C.,
504 F.3d 229 (2d Cir. 2007).....................................................................................................20
Copeland v. Marshall,
641 F.2d 880 (D.C. Cir. 1980) .................................................................................................15
Democratic Cent. Comm. of Dist. of Columbia v. Washington Metro. Area Transit
Comm’n,
3 F.3d 1568 (D.C. Cir. 1993) ...................................................................................................19
Dewey v. Volkswagen of Am.,
--- F. Supp. 2d ----, 2010 U.S. Dist. LEXIS 79304 (D.N.J. July 30, 2010) .......................22, 25
Eppard v. ViaQuest, Inc.,
No. 09-cv-234, 2010 U.S. Dist. LEXIS 122769 (S.D. Ohio Nov. 2, 2010) ...........................22
Fischel v. Equitable Life Assur. Soc’y of U.S.,
307 F.3d 997 (9th Cir. 2002) ...................................................................................................15
Florin v. Nationsbank of Georgia, N.A.,
34 F.3d 560 (7th Cir. 1994) .....................................................................................................20
Garcia v. Johanns,
444 F.3d 625 (D.C. Cir. 2006) ..........................................................................................31, 33
Garcia v. Veneman,
224 F.R.D. 8 (D.D.C. 2004) ..............................................................................................31, 33
Gunter v. Ridgewood Energy Corp.,
223 F.3d 190 (3d Cir. 2000).....................................................................................................16
ii
In re Activision Sec. Litig.,
723 F. Supp. 1373 (N.D. Cal. 1989) ........................................................................................20
In re Baan Co. Sec. Litig.,
288 F. Supp. 2d 14 (D.D.C. 2003) .....................................................................................23, 27
In re Cardinal Health, Inc. Sec. Litig.,
528 F. Supp. 2d 752 (S.D. Ohio 2007) ..............................................................................24, 37
In re Combustion, Inc.,
968 F. Supp. 1116 (W.D. La. 1997)...........................................................................................4
In re Dep’t of Veterans Affairs Data Theft Litig.,
653 F. Supp. 2d 58 (D.D.C. 2009) .................................................................................4, 23, 24
In re Enron Corp. Sec. Litig.,
586 F. Supp. 2d 732 (S.D. Tex. 2008) ...............................................................................24, 37
In re Ins. Brokerage Antitrust Litig.,
579 F.3d 241 (3d Cir. 2009).....................................................................................................16
In re Lease Oil Antitrust Litig.,
186 F.R.D. 403 (S.D. Tex. 1999)...............................................................................................4
In re Lorazepam & Clorazepate Antitrust Litig.,
2003 U.S. Dist. LEXIS 12344 (D.D.C. June 16, 2003) ................................................... passim
In re NASDAQ Market-Makers Antitrust Litig.,
187 F.R.D. 465 (S.D.N.Y. 1998) ...................................................................................4, 24, 37
In re Prudential Ins. Co. of Am. Sales Practices Litig.,
148 F.3d 283 (3d Cir. 1998)...........................................................................................4, 24, 37
In re Rite-Aid Corp. Sec. Litig.,
396 F.3d 294 (3d Cir. 2005).....................................................................................................36
In re SmithKline Beeckman Corp. Sec. Litig.,
751 F. Supp. 525 (E.D. Pa. 1990) ............................................................................................20
In re UnitedHealth Group Inc. PLSRA Litig.,
643 F. Supp. 2d 1094 (D. Minn. 2009)..............................................................................24, 37
In re Veneman,
309 F.3d 789 (D.C. Cir. 2002) ...................................................................................................6
In re Vitamins Antitrust Litig.,
2001 U.S. Dist. LEXIS 25067 (D.D.C. July 13, 2001)..............................................................4
iii
In re Washington Public Power Supply Sys. Sec. Litig.,
19 F.3d 1291 (9th Cir. 1994) ...................................................................................................21
In re Workers Comp. Ins. Antitrust Litig.,
77 F. Supp. 284 (D. Minn. 1991).............................................................................................20
In re WorldCom, Inc. Sec. Litig.,
388 F. Supp. 2d 319 (S.D.N.Y. 2005)................................................................................24, 37
Keepseagle v. Johanns,
236 F.R.D. 1 (D.D.C. 2006).......................................................................................................7
Keepseagle v. Veneman,
2001 WL 34676944 (D.D.C. Dec. 12, 2001).............................................................................6
Klein v. O’Neal, Inc.,
705 F. Supp. 2d 632 (N.D. Tex. 2010) ....................................................................................21
Lambrecht v. Taurel,
No. 08-cv-68, 2010 U.S. Dist. LEXIS 75633 (S.D. Ind. June 8, 2010)...................................22
Lonardo v. Travelers Indem. Co.,
706 F. Supp. 2d 766 (N.D. Ohio 2010)....................................................................................22
Love v. Johanns,
439 F.3d 723 (D.C. Cir. 2006) ..........................................................................................31, 33
Love v. Veneman,
224 F.R.D. 240 (D.D.C. 2004) ..........................................................................................31, 33
Masters v. Wilhelmina Model Agency, Inc.,
473 F.3d 423 (2d Cir. 2007).....................................................................................................25
Navarro v. Servisair,
No. 08-cv-02716, 2010 U.S. Dist. LEXIS 41081 (N.D. Cal. Apr. 27, 2010)..........................22
Nilsen v. York County,
400 F. Supp. 2d 266 (D. Me. 2005) .........................................................................................19
Perdue v. Kenny A,
130 S. Ct. 1662 (2010).......................................................................................................21, 22
Shaw v. Toshiba Am. Info. Sys., Inc.,
91 F. Supp. 2d 942 (E.D. Tex. 2000)...................................................................................4, 37
Smith v. DaimlerChrysler North America LLC,
No. 00-cv-06003 (D.N.J. Oct. 24, 2005) .................................................................................20
iv
Staton v. Boeing Co.,
327 F.3d 938 (9th Cir. 2003) ...................................................................................................19
Suffolk v. Long Island Lighting Co.,
907 F.2d 1295 (2d Cir. 1990)...................................................................................................19
Swedish Hosp. Corp. v. Shalala,
1 F.3d 1261 (D.C. Cir. 1993) ........................................................................................... passim
Vizcaino v. Microsoft Corp.,
290 F.3d 1043 (9th Cir. 2002) .....................................................................................23, 24, 37
Wal-Mart Stores v. VISA USA, Inc.,
396 F.3d 96 (2d Cir. 2005).................................................................................................24, 37
Waters v. Int’l Precious Metals Corp.,
190 F.3d 1291 (11th Cir. 1999) ...............................................................................................26
Wells v. Allstate Ins. Co.,
557 F. Supp. 2d 1 (D.D.C. 2008) ...............................................................................4, 5, 23, 27
Williams v. MGM-Pathe Cmmcn’s. Co.,
129 F.3d 1026 (9th Cir. 1997) ...........................................................................................25, 26
STATUTES
7 U.S.C. § 2279................................................................................................................................8
11 U.S.C. § 1132(g)(1) ..................................................................................................................20
42 U.S.C. § 1988............................................................................................................................19
Equal Credit Opportunity Act, 15 U.S.C. § 1691 ..................................................................2, 5, 19
OTHER AUTHORITIES
4 Alba Conte and Herbert Newberg, Newberg on Class Actions § 14.6 (4th ed.
2002) ........................................................................................................................................23
Fed. R. Civ. P. 23(h) ........................................................................................................................1
Fed. R. Civ. P. 23(b)(2)....................................................................................................................6
Fed. R. Civ. P. 23(b)(3)....................................................................................................................9
Fed. R. Civ. P. 30(b)(6)....................................................................................................................7
Fed. R. Civ. P. 54(d)(2)....................................................................................................................1
v
Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237 (1985) .......................19
vi
I.
INTRODUCTION AND RELIEF REQUESTED
On October 19, 2010, class counsel, on behalf of the class, entered into a
landmark settlement of this action with the United States Department of Agriculture
(“USDA”).1 The USDA has agreed to make far-reaching programmatic changes to its
farm loan and farm loan servicing programs, and to fund a settlement worth $760
million.2 This Settlement Agreement, achieved after nearly eleven years of hard-fought
litigation, would not have been possible but for the skill, creativity, perseverance, and
hard work of class counsel. More importantly, the Settlement will provide significant
monetary compensation to class members and will improve the USDA’s farm loan
programs for Native American (and other minority) farmers and ranchers for years to
come.
Class counsel worked vigorously and without compensation for over eleven years
to achieve this result. Pursuant to Federal Rules of Civil Procedure 23(h) and 54(d)(2),
Plaintiffs now respectfully move for an award of attorneys’ fees and expenses in the
amount of 8% of the $760 million common fund of monetary benefits to the class,3 which
1
A slightly revised final Settlement Agreement was filed on November 1, 2010. Dkt.
No. 576.
2
Pursuant to the Settlement, the government will provide a cash fund of $680 million
from which damages will be paid to eligible class members. In addition, the USDA will
extinguish outstanding farm loan debt held by eligible class members up to a total of $80
million; as explained infra Section III.C, the full $80 million in debt relief is likely to be
awarded. Combining the cash fund and debt relief, the Settlement makes $760 million in
monetary relief available to the class. See Mem. of Law in Support of Motion for
Preliminary Approval of Settlement and an Order Certifying Settlement Class and
Approving Certain Provisions in Settlement Agreement at 1-2 (Oct. 22, 2010) Dkt. No.
571-1 (hereafter “Motion for Preliminary Approval”).
3
As explained infra Section III.C, the award is appropriately based on the full amount of
the $680 cash compensation fund plus $80 million in debt relief made available to the
class, even though any unclaimed benefits could be payable as cy pres contributions or
revert to the government.
amounts to $60.8 million. This award will compensate class counsel for the fees and
expenses they have incurred over the eleven years of litigating this action. Through
November 30, 2010, class counsel have invested 41,088.21 hours in the case, amounting
to $16,246,882.80 in fees, and have incurred $1,637,057.68 in expenses. Declaration of
Joseph M. Sellers (“Sellers Decl.”) at ¶ 20 (attached as Ex. 1). Class counsel will also
undertake considerable work and incur substantial expenses in implementing the
monetary and programmatic terms of the Settlement over the next five years and
providing assistance to class members who file claims. Class counsel projects that future
fees and expenses for such work will total approximately $8.65 million. The fee award
here will be class counsel’s only compensation for this prospective work.
Because this action resulted in the establishment of a settlement fund, attorneys’
fees are properly awarded pursuant to the common fund doctrine, rather than pursuant to
the fee shifting provisions of the Equal Credit Opportunity Act. 15 U.S.C.§ 1691e(d).
The Supreme Court has long held that a “litigant or a lawyer who recovers a common
fund for the benefit of persons other than himself or his client is entitled to a reasonable
attorney’s fee from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478
(1980). As explained more fully below, case law clearly supports the award of fees under
the common fund doctrine when a case results in the creation of a pool of funding for the
benefit of class members, even where a successful plaintiff could have otherwise
recovered attorneys’ fees from the defendant pursuant to a fee shifting statute.
Here, an award at the top of the 4% to 8% range set forth in the Settlement
Agreement is fully supported by the extraordinary results obtained as a consequence of
class counsel’s tremendous efforts. Class counsel secured substantial relief, including
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$760 million in monetary relief for the class,4 which amounts to 98% of the $776 million
that Plaintiffs’ expert computed to be the maximum amount of demonstrable economic
losses sustained over the class period. In addition, the Settlement provides for significant
programmatic improvements in the way the USDA provides farm loans to the
approximately 61,000 Native Americans currently engaged in farming and ranching, as
well as to the many who will enter the field in the future. The purpose of this relief is to
permit as many Native Americans as possible to continue to farm and ranch while
simultaneously nurturing the next generation of Native American farmers and ranchers.
This Settlement was not achieved easily or quickly, but rather is the fruit of eleven years
of hard-fought litigation including a vigorous contest on class certification, two appeals
to the D.C. Circuit, and five years of robust discovery and motion practice on a number
of other complex issues. Thus, as this memorandum will demonstrate, the fee request is
amply justified in this case.
Notably, the percentage of the common fund sought here is less than half the
percentage typically awarded in common fund cases. Courts within the D.C. Circuit have
awarded fees from a common fund in amounts of 20% to 30% of the total fund, and have
approved fees of up to 45% of the common fund. See In re Dep’t of Veterans Affairs
Data Theft Litig., 653 F. Supp. 2d 58, 60 (D.D.C. 2009); see also Wells v. Allstate Ins.
Co., 557 F. Supp. 2d 1, 7-8 (D.D.C. 2008) (approving a fee of 45% and noting that it is
4
This $760 million figure does not include interest on the cash portion of the monetary
settlement. If the Court approves the Settlement, payment of the $680 million will occur
after the time for appeals has passed. However, class counsel will disburse these funds
only after the claims process is completed. In the interim, class counsel will deposit these
funds in highly secure, interest-bearing accounts. These funds could accrue between $3
and $6 million in interest, which would provide additional monetary relief available for
disbursement to the class after deduction of taxes on the interest and costs associated with
setting up and administering the account.
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“toward the high end of the range of percentages generally awarded”); In re Vitamins
Antitrust Litig., 2001 U.S. Dist. LEXIS 25067, 58-60 (D.D.C. July 13, 2001) (citing
cases). Even in mega-fund cases where the fund is comparable to that here, “fees of
fifteen percent are common.” In re Lorazepam & Clorazepate Antitrust Litig., 2003 U.S.
Dist. LEXIS 12344 at *26 (D.D.C. June 16, 2003) (citing Shaw v. Toshiba Am. Info. Sys.,
Inc., 91 F. Supp. 2d 942, 989 (E.D. Tex. 2000) (surveying cases)); see also In re Lease
Oil Antitrust Litig., 186 F.R.D. 403, 443-44 (S.D. Tex. 1999) (25% of more than $190
million); In re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465 (S.D.N.Y. 1998)
(14% of $1 billion); In re Combustion, Inc., 968 F. Supp. 1116, 1139-40 (W.D. La. 1997)
(36% of $127 million).
Members of the class will have ample opportunity to comment on the award of
attorneys’ fees and costs that Plaintiffs seek, should they wish to do so. In November,
notice of the requested fee award range was sent to potential class members and included
in the notice published in media outlets targeting Native American farmers and ranchers
across the country. Additionally, class counsel have attended several meetings with class
members and have other such meetings planned in the near future. The amount of
attorneys’ fees and costs being sought has been and will continue to be disclosed at each
event.
Finally, as is detailed in Section III.D. below, the requested award is supported by
the seven factors generally considered in assessing the reasonableness of a common fund
fee award: (1) the size of the fund created and the number of persons benefitted; (2) the
presence or absence of substantial objections by members of the class to the settlement
terms and/or attorneys’ fees requested; (3) the skill and efficiency of the attorneys
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involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment;
(6) the amount of time devoted to the case by plaintiffs’ counsel; and (7) the awards in
similar cases. Wells, 557 F. Supp. 2d at 6-7. For all of these reasons, the requested
award of attorneys’ fees and costs should be granted.
II.
BACKGROUND
A.
The Litigation
On November 24, 1999, George Keepseagle, Luther Crasco, John Fredericks, Jr.,
Gene Cadotte, and Basil Alkire,5 individually and on behalf of all others similarly
situated (“Plaintiffs”), filed suit against the USDA under inter alia, the Equal Credit
Opportunity Act, 15 U.S.C. §§ 1691-1691f, alleging that the USDA discriminated against
Native Americans in its Farm Loan Program, causing them substantial economic losses.
Complaint ¶¶ 136-39, Dkt. No. 1; see also Eighth Amended Complaint ¶¶ 134-36, Dkt.
No. 460. Plaintiffs alleged discrimination under both disparate treatment and disparate
impact theories of liability, and alleged that discrimination took various forms, including:
(1) outright denials of farm loans and loan servicing; (2) widespread failure to provide
Native American farmers the assistance in preparing farm loan applications available to
white farmers, and recognized by the USDA recognized as necessary; (3) unjustified
delays in approval of loans; and (4) provision of loans that were smaller than those
applied for or contained more onerous conditions than loans made to similarly situated
white farmers. See, e.g., Eighth Amended Complaint ¶¶ 51-85, Dkt. No. 460.
5
Since the filing of the complaint, Luther Crasco, John Fredericks, Jr., and Basil Alkire
have died, and George Keepseagle stepped down from the representative role for health
reasons. Additionally, Claryca and Keith Mandan became Class Representatives in 2000,
and Marilyn Keepseagle and Porter Holder became Class Representatives in 2006.
5
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The USDA denied the allegations and moved for judgment on the pleadings or, in
the alternative, summary judgment, arguing that plaintiffs’ claims were time-barred,
barred by res judicata, or not cognizable under governing law. See Dkt. Nos. 39, 235,
449. As the case moved forward, the USDA continued to contest the action vigorously at
every stage, renewing these and other defenses. In total, the parties filed over 150
motions during the course of the litigation.
One of the hardest-fought issues was whether the suit could proceed as a class
action, and if so, what relief could be pursued by the class. In 2001, two years after the
suit was filed, the Court certified a class under Rule 23(b)(2), permitting it to seek
declaratory and injunctive relief and defining the class as:
All Native American farmers and ranchers who (1) farmed or ranched
between January 1, 1981 and November 24, 1999; (2) applied to the
USDA for participation in a farm program during that period; and (3) filed
a discrimination complaint with the USDA either individually or through a
representative during the time period.
Keepseagle v. Veneman, 2001 WL 34676944 at *15 (D.D.C. Dec. 12, 2001). At that
time, the Court deferred consideration of Plaintiffs’ request to certify a class for monetary
relief until the nature of the relief being sought and its compatibility with class
certification could be developed in the record. Id. at *14
The Secretary twice sought review in the Court of Appeals of this Court’s class
certification decision. The USDA first sought interlocutory review of class certification,
which was denied by the D.C. Circuit in October 2002, after full briefing and oral
argument. In re Veneman, 309 F.3d 789 (D.C. Cir. 2002). The Secretary later petitioned
for a writ of mandamus and sought to stay all proceedings in this action. Following
briefing, the D.C. Circuit again denied the USDA’s request. Order Denying Writ of
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Mandamus, No. 04-5031 (D.C. Cir. Mar. 3, 2004); see Dkt. No. 218. The parties
subsequently plunged into five years of extensive discovery, which is described below.
In November 2005, this Court denied without prejudice Plaintiffs’ request to permit the
class to pursue claims for damages, advising the parties that it would entertain such a
request upon conclusion of discovery. See Keepseagle v. Johanns, 236 F.R.D. 1, 1-2
(D.D.C. 2006). The Court also rejected the USDA’s request to reconsider the previous
decision to certify a class in light of denials of certification in similar suits against the
USDA. Id. at 3-4 n.1.
Discovery was overseen by this Court with the assistance of Magistrate Judge
Kay. The temporal scope of the class claims, spanning more than two decades, and the
geographic scope of the evidence implicated by the nationwide claims, inevitably led to
lengthy and extensive discovery. Class counsel traveled to 13 states to conduct 8 expert
depositions, more than 40 depositions of Plaintiffs’ non-expert witnesses, and more than
50 depositions of the USDA’s non-expert and Rule 30(b)(6) witnesses. Id. Additionally,
counsel interviewed nearly 1000 potential class members to build their case. Id.
Ultimately, the parties exchanged and reviewed more than two million pages of hard
copy and electronic documents and produced ten reports from experts in the fields of
social psychology, sociology, agricultural economics, statistics, and USDA’s farm loan
programming. See Sellers Decl. at ¶ 3 (Ex. 1). Moreover, the parties’ attempts to define
the appropriate contours of discovery on nationwide claims stretching back over twentyfive years were hard-fought, marked by several motions to compel and repeated attempts
by the USDA to stay proceedings. The parties engaged in particularly extensive briefing
on the questions of whether Plaintiffs should be compelled to produce far-reaching
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personal financial data covering the twenty-five year period and whether the USDA could
withhold documents under the deliberative process privilege. See, e.g., Dkt. Nos. 372,
422, 437, 472.
In addition to motion practice devoted to the scope and nature of discovery
permitted in this action, the parties continued to vigorously contest a host of issues
fundamental to the litigation. One such issue concerned whether previously filed oral
complaints were sufficient to allow otherwise time-barred ECOA complaints under 7
U.S.C. § 2279, known as § 741. The USDA moved for judgment as a matter of law on
Plaintiffs’ ECOA complaints, arguing that the pleadings did not allege that Plaintiffs had
filed complaints within the meaning of § 741. The parties briefed the issue extensively
and produced evidence of the USDA’s historical approach to oral complaints; the Court
ultimately held that oral complaints were sufficient to support jurisdiction. See Dkt. Nos.
235, 246, 275. Another dispute concerned the USDA’s failure to put a litigation hold in
place until late 2008. In light of the litigation hold delay and the widespread and
longstanding failure of the USDA to create and maintain records of civil rights
complaints, Plaintiffs were concerned that they would be unable to prove class
membership without the key documents that properly should have been in the USDA’s
possession. With the Court’s approval, Plaintiffs sought additional discovery from the
USDA about its recordkeeping problems and the litigation hold. Having concluded that
the USDA had failed to create and maintain vast quantities of key documents, on
August 18, 2009, Plaintiffs filed a motion asking the Court to remedy the USDA’s
evidentiary failures by issuing an order allowing Plaintiffs to establish class membership
through alternative means. Dkt. Nos. 528, 529. The Secretary opposed the motion,
8
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which is still pending. Plaintiffs then renewed their motion for class certification on the
monetary claims, moving on December 4, 2009, to certify a class to assert claims for
damages under Rule 23(b)(3). Dkt. No. 551.
That same day, the Court stayed proceedings to allow the parties to explore the
possibility of settlement. Following a decade of extensive discovery, substantial briefing
and motion practice, and two appeals to the D.C. Circuit, the parties began settlement
negotiations. These negotiations spanned another ten months, during which class counsel
engaged in myriad meetings, telephone conferences, and other communications with the
USDA and with the named Plaintiffs, with whom they consulted regularly, before the
parties reached a settlement of this action hours before the parties appeared before the
Court on October 19, 2010 to announce the Settlement. By that point, the docket listed
nearly 600 entries.
B.
The Settlement Agreement
The Settlement Agreement provides far-reaching and unprecedented benefits to
past, current, and future Native American farmers and ranchers, and represents a major
achievement for the class. Dkt. No. 576. The Settlement provides class members with
substantial monetary relief, the total value of which is $760 million, to address the harm
they suffered from the USDA’s past practices. It also provides programmatic relief to
improve the responsiveness of the USDA’s farm loan program to the needs of Native
Americans and help ensure that Native American farmers and ranchers will have equal
and meaningful access to farm loan program benefits.
1.
Monetary Relief
The monetary relief secured through the Settlement includes several components.
First, the Settlement creates a $680 million fund, from which damages may be awarded to
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compensate class members for discrimination they may have suffered since 1981. Even
apart from the $80 million in debt relief, discussed below, the $680 million in monetary
relief represents 88% of the $776 million that Plaintiffs’ expert Patrick O’Brien, a
27-year veteran of the USDA’s Economic Research Service, calculated as the maximum
amount of quantifiable net economic losses that Native Americans suffered from 1981
through 2007. See Motion for Class Certification, Ex. 2, Dkt. No. 551-4 (Dec. 4, 2009) at
6-7. Individual class members will be able to receive substantial monetary relief from
this fund, and may claim their awards through one of two tracks. Successful claimants
filing under Track A, which employs a “substantial evidence” standard in assessing
claims, will receive presumptive awards in amounts up to $50,000, depending upon the
number of successful claims. These claimants will receive an additional monetary
benefit in the amount equal to 25% of their award that will be paid to the IRS to reduce or
eliminate taxes on the award. Successful claimants filing under Track B, which employs
a “preponderance of the evidence” standard, will receive payment of their actual damages
up to $250,000, subject to an overall cap of $50 million. In the event any portion of the
damages fund goes unclaimed, it will be disbursed to cy pres beneficiaries, designated by
class counsel and approved by the Court, for the benefit of the Native American farming
and ranching community.
Second, the Settlement makes available an additional $80 million to the class for
debt relief. Every claimant who carries farm loan debt and receives a damage award
through either Track A or Track B will be eligible to receive both a debt relief award and
a debt relief tax award. Based on an analysis of the outstanding loan debt of Native
American farmers and ranchers, Plaintiffs’ expert Pat O’Brien predicts the full $80
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million in relief is likely to be claimed. Declaration of Pat O’Brien (“O’Brien Decl.”) at
¶¶ 3-8 (attached as Ex. 2). If the $80 million allocated for debt relief does not extinguish
all outstanding farm loan debt owed by the class, the USDA will offer loan servicing to
every class member with any remaining outstanding debt. The loan servicing options
include a reduction in the amount of outstanding federal loan debt, a reduction of the
interest rate on such debt, or several other alternatives. Furthermore, the USDA has
agreed to suspend through the conclusion of the claims process all efforts to accelerate,
foreclose, use administrative offsets, or refer offsets to the U.S. Treasury on any FSA
Farm Program loan made to Native American farmers or ranchers. In addition, the
USDA will not dispose of any foreclosed property formerly owned by such individuals.
Finally, while the award of attorneys’ fees and costs will be paid from the
common fund made available to the class, the costs for providing notice to potential class
members, and for administering the claims process, will be paid separately by the USDA,
which has agreed to pay up to an additional $20 million to cover such administrative
costs.
2.
Programmatic Relief
Although there have been several suits brought by women and minority farmers
against the USDA over the past 13 years, this is the first to secure forward-looking
programmatic relief aimed at improving the responsiveness of the farm loan programs to
the needs of Native Americans and other “socially disadvantaged farmers,” as the USDA
refers to this population. The USDA has agreed to make numerous changes that will
improve the delivery of farm loan programs to Native Americans, help keep Native
Americans on their land, and nurture future generations of Native American farmers and
ranchers. These changes will provide critically important benefits to what the United
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States Census has counted to be over 61,000 Native Americans currently engaged in
farming and ranching,6 as well as to future generations of Native American farmers and
ranchers. Some of the key elements of the programmatic relief are summarized below.
First, in recognition of the importance of creating a forum for Native American
farmers and ranchers to raise and resolve with the USDA any ongoing concerns about the
delivery of farm loan program services, the Settlement establishes a new Federal
Advisory Committee. Known as the Council for Native American Farming and
Ranching, this 15-member Council will consist of 11 Native American leaders and
advocates and four senior USDA officials. The Council will focus on issues related to
the participation of Native American farmers and ranchers in USDA farm loan programs
and will provide guidance to help eliminate barriers to greater participation in these
programs. It will also serve as a forum through which leaders of the USDA and the
Native American community can address problems in the delivery of farm loan services
and develop strategies for enhancing delivery of these services to Native Americans.
Second, the Settlement provides for the appointment of an Ombudsperson at the
USDA to address the concerns of all socially disadvantaged farmers, including Native
American farmers and ranchers. The Ombudsperson will report the concerns of minority
farmers to the new Council on a regular basis.
Third, the Settlement requires the USDA to undertake a number of new and
unprecedented initiatives that should dramatically improve the delivery of farm loan
services to Native Americans. Subject to the availability of funding, the USDA will, for
6
See Census of Agriculture, Table 55, available at http://www.agcensus.
2007/Full_Report/Volume_1,_ Chapter_1_US/st99_1_055_055.pdf.
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the first time, establish farm loan sub-offices on Indian Reservations at Tribal
Headquarters. These sub-offices will provide, inter alia, technical assistance and
outreach to Native Americans. The managers of these sub-offices will be required to
demonstrate an understanding of the culture of the tribes where the offices are located. In
addition, the USDA will offer instruction to Native Americans at 10 to 15 regional
venues on financial, business, and marketing planning skills, basic and advanced business
management skills training, and instruction on leasing requirements. In connection with
this commitment, the USDA has agreed to create and distribute a customer’s guide to
assist applicants for farm loans and loan servicing to navigate the complex process for
securing these important benefits.
Fourth, the USDA will undertake a comprehensive review of its regulations,
handbooks, instructions, and administrative notices, in consultation with Class Counsel,
and will make changes necessary to ensure these rules are responsive to the unique
features of Native American culture.
Fifth, the Settlement requires that the USDA regularly collect and report data
comparing loans awarded and sought by Native Americans to the Council, the
Ombudsperson, and Class Counsel. These reports will permit detection of any disparities
that may arise and aid in the formulation of measures to address them. The data will be
reported on a county by county basis in the 15 states with the highest concentration of
Native American farmers and ranchers, and on a statewide basis elsewhere. The Council,
Class Counsel, or the Ombudsmen may ask the USDA Inspector General to examine any
loan disparities that they believe warrant such attention.
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Sixth, the USDA will take unprecedented action to make credit available to
Native Americans who otherwise, because of past financial difficulties, would likely
encounter difficulty obtaining credit from either the USDA or commercial banks. These
measures include a commitment that prior debt settlements with the USDA, which would
be eligible for debt relief under the Settlement Agreement, will not adversely affect the
debtor’s ability to obtain credit from the USDA in the future. These provisions will
ensure that debt relief received by class members, either in the past or through the
Settlement, will not affect their ability to secure credit in the future.
C.
The Efforts of Class Counsel
The benefits created by this Settlement are the product of extensive efforts by
class counsel spanning 11 years. These efforts are as yet wholly uncompensated:
counsel agreed to represent the class on terms under which their right to compensation
and the amount of compensation are dependent entirely upon the outcome of the
litigation and on the extent of any success achieved. As a consequence, Plaintiffs’
counsel have yet to receive any payment for their time or reimbursement of the
considerable litigation expenses they advanced on behalf of the class. Nor are class
counsel finished with the work they will perform on behalf of the class. These efforts
will continue for several more years. First, class counsel will devote their efforts
primarily to assisting class members with preparing and filing claims for monetary relief
available under the Settlement Agreement. In addition to work class counsel will
perform in this regard, they are also in the process of hiring and supervising a team of
several dozen paralegals and attorneys who will provide assistance personally to class
members across the country who are participating in the claims process. Second, class
counsel will oversee implementation of the programmatic elements of the Settlement and
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monitor the USDA’s compliance with the terms of the Settlement Agreement over the
five-year lifetime of the agreement.
1.
Class Counsel’s Work to Date
The volume of work already performed on behalf of the class is substantial. To
date, class counsel have expended more than 40,000 hours in their work in this case. See
Decl. of Sellers at ¶ 20 (Ex. 1); see also Declaration of David J. Frantz (“Frantz Decl.”)
(attached as Ex. 3); Declaration of Phillip L. Fraas (“Fraas Decl.”) (attached as Ex. 4);
Declaration of Paul M. Smith (“Smith Decl.”) (attached as Ex. 5); Declaration of Sarah
M. Vogel (“Vogel Decl.”) (attached as Ex. 6); and Declaration of Anurag Varma
(“Varma Decl.”) (attached as Ex. 7). At current hourly rates, the time already expended
by class counsel in representing the class amounts to $16,246,882.80.7 Decl. of Sellers at
¶ 20 (Ex. 1). In addition, class counsel have advanced $1,637,057.68 in expenses for
expert witness fees, travel, transcripts, copying, and similar such costs. Id. The records
of the time expended by class counsel in this action, maintained contemporaneously with
the work performed, are voluminous and contain confidential and privileged information.
Consistent with established practice in common fund cases, class counsel have
summarized the records in their supporting declarations, attached as Exhibits 1, 3-7, and,
should the Court request, they will make the records available for in camera review. See
7
Where , as here, counsel receive payment only at the conclusion of litigation, use of
current hourly rates to calculate the lodestar is appropriate to account for the delay in
payment, as is an award of interest on expenses advanced by counsel. See, e.g.,
Copeland v. Marshall, 641 F.2d 880, 893 n.23 (D.C. Cir. 1980) (en banc) (noting that
lodestar may be “based on present hourly rates, rather than the lesser rates applicable to
the time period in which the services were rendered,” to account for the delay in
payment); Fischel v. Equitable Life Assur. Soc’y of U.S., 307 F.3d 997, 1010 (9th Cir.
2002) (district court abused its discretion where it failed to compensate for delay in
payment by using current hourly rates or adding interest to award of old hourly rates).
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In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 284 (3d Cir. 2009) (summaries of
time records sufficient in common fund case because Court used information only to
cross-check reasonableness of fee award); Gunter v. Ridgewood Energy Corp., 223 F.3d
190, 200 (3d Cir. 2000) (appropriate for counsel to wait to submit detailed time records
until Court requested them).
2.
Prospective Work
The work of class counsel is far from over. Although the litigation has concluded
(assuming the Court approves the Settlement and the time for appeal expires without
incident), class counsel will continue to provide service to the class through assistance
with the claims process and implementation and monitoring of the programmatic relief
through an agreement in effect for five years.
Class counsel’s post-settlement obligations are manifold. First, counsel must
provide the class with notice of the Settlement Agreement. Counsel has undertaken an
ambitious notice strategy intended to inform and educate Native American farmers and
ranchers of the Settlement, and to avoid some of the perceived problems with
communication of the Pigford settlement to that class of farmers. Class counsel have
already begun traveling around the country to numerous meetings with Native American
farmers and ranchers to explain the terms of the Settlement Agreement and claims
process to them. See Status Report (Dec. 15, 2010), Dkt. No. 580 (informing the court
that class counsel had or would soon travel to Spokane, WA, Albuquerque, NM, Las
Vegas, NV, Bismarck, ND, and Laughlin, NV to speak with potential class members
about the Settlement). Second, counsel will work with the Claims Administrator and
Neutrals to ensure that both claims tracks are properly established and implemented
according to the terms of the Settlement.
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Third, and most significantly, class counsel have agreed to provide assistance,
without additional charge, to class members who elect to submit claims under Track A.
Class members are free to secure individual counsel of their choice to assist with their
Track A claims, paying such counsel a fee of up to 2% of their fee award; however, class
counsel has agreed to provide such assistance at no charge to the claimant. To ensure
that appropriate assistance is available to class members across the country seeking to
submit claims, class counsel project they will hire, train, supervise, and equip
approximately 56 employees over the next year. Sellers Decl. at ¶ 21 (Ex. 1). Using
conservative billing rates, class counsel estimate that they will incur approximately $6.5
million in additional fees for this work. Id.
Fourth, class counsel have a duty to answer class member questions and provide
class members with information regarding the status of their claims and the distribution
of funds. Fulfilling this responsibility will likely require significant time and resources.
Finally, class counsel will be involved with, and monitor, implementation of the
programmatic relief provided by the Settlement Agreement. Because the Settlement
Agreement provides for the creation of unique new programs and entities, such as the
Council for Native American Farming and Ranching, class counsel foresee a substantial
role in assuring that these new developments are carefully implemented to achieve the
goals embodied by the Settlement. For example, counsel will be involved in helping to
educate and recruit persons to serve on the new Council, and will consult with the Office
of Tribal Relations regarding USDA regulations, handbooks, instructions, and
administrative notices to ensure they are responsive to the unique features of Native
American Culture. Since the Settlement Agreement was preliminarily approved in
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November, class counsel have already devoted substantial time to proposing
programmatic changes and meeting with USDA officials to work through these
proposals. Sellers Decl. at ¶ 21 (Ex. 1).
Class counsel’s responsibilities will likely be most significant in the first year of
the settlement term as they educate and assist class members with the claims process and
work with the USDA in undertaking programmatic changes. Id. Counsel project that
they will devote an average of 20 hours a week for 50 weeks in 2011; at an average
billing rate of $500, this amounts to $500,000 in class counsel fees. Counsel project that
they will incur approximately $150,000 in additional fees through the remaining four
years of the settlement term. Id. These fees are in addition to the projected $6.5 million
that counsel will incur for the work of new employees hired to assist class members with
the claims process. Finally, counsel project that costs for travel, equipping the 56
contract employees, and other expenses will total approximately $1.5 million. Id. In
sum, counsel predict incurring an additional $7.15 million in fees and $1.5 million in
costs, for which their only reimbursement will come from the award sought here. Id.
III.
ARGUMENT
A.
The “Percentage-of-the-Fund” Method Is the Appropriate
Mechanism for Determining Fees in this Case.
As the parties negotiated an award of attorneys’ fees and costs payable from the
common fund created by the Settlement Agreement, the amount of the award, as the D.C.
Circuit has held, is properly determined using the percentage-of-the-fund method.
Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1271 (D.C. Cir. 1993) (“[A] percentage-ofthe-fund method is the appropriate mechanism for determining the attorney fees award in
common fund cases.”); see also Democratic Cent. Comm. of Dist. of Columbia v.
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Washington Metro. Area Transit Comm’n, 3 F.3d 1568, 1573 (D.C. Cir. 1993). “It is by
now well established that ‘a litigant or lawyer who recovers a common fund for the
benefit of persons other than himself or his client is entitled a reasonable attorney’s fee
from the fund as a whole.’” Swedish Hosp. Corp., 1 F.3d at 1265 (quoting Boeing Co. v.
Van Gemert, 444 U.S. 472, 478 (1980)). As the D.C. Circuit has explained, where a
common fund exists, fees should be determined by the percentage-of-the-fund method,
and not based on the lodestar. Swedish Hosp. Corp., 1 F.3d at 1268-70.
The percentage-of-the fund method applies even though attorneys’ fees could
have been awarded pursuant to the fee-shifting provisions of the Equal Credit
Opportunity Act, 15 U.S.C. § 1691e(d), if the class had prevailed at trial. Courts
regularly award attorneys’ fees in settlements using the common fund method, even
where a fee-shifting statute is available. For example, in a class action alleging racial
discrimination in employment, which is covered by the fee-shifting provisions of 42
U.S.C. § 1988, the Ninth Circuit concluded “that there is no preclusion on recovery of
common fund fees where a fee-shifting statute applies.” Staton v. Boeing Co., 327 F.3d
938, 967 (9th Cir. 2003); see also Suffolk v. Long Island Lighting Co., 907 F.2d 1295,
1327 (2d Cir. 1990) (awarding fees using common fund rather than fee-shifting provision
of the RICO Act); Nilsen v. York County, 400 F. Supp. 2d 266, 271 n.12 (D. Me. 2005)
(reaching same conclusion in § 1983 action); Third Circuit Task Force, Court Awarded
Attorney Fees, 108 F.R.D. 237, 255-56 (1985) (explaining that common fund method
should be used when a common fund is created even when statutory fee-shifting is
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available).8 The Third and Seventh Circuits similarly concluded that a fee award could
be calculated using the common fund method, notwithstanding that the fee-shifting
provisions of ERISA, 11 U.S.C. § 1132(g)(1), applied to the underlying suit. See Brytus
v. Spang & Co., 203 F.3d 238, 246-47 (3d Cir. 2000); Florin v. Nationsbank of Georgia,
N.A., 34 F.3d 560, 564 (7th Cir. 1994) (“Common fund principles properly control a case
which is initiated under a statute with a fee-shifting provision but is settled with the
creation of a common fund.”); see also Central States Southeast & Southwest Areas
Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 249-50
(2d Cir. 2007) (affirming award of fees as a percentage of the common fund in ERISA
case).9
The courts, including the Supreme Court, have long distinguished between
common fund cases—where the fee is a percentage of the fund—and fee-shifting cases,
where the fee is based on the lodestar. See Swedish Hosp. Corp., 1 F.3d at 1268; Blum v.
Stenson, 465 U.S. 886, 900 n.16 (1984). As the D.C. Circuit has explained, the common
fund and lodestar methods for awarding fees serve different purposes and rationales: the
8
Courts have also awarded attorneys’ fees as a percentage of a common fund in cases
under ECOA. See Smith v. DaimlerChrysler North America LLC, No. 00-cv-06003
(D.N.J. Oct. 24, 2005) (Dkt. No. 150) (attached as Ex. 8 ) (approving $17.5 million fee
award, which the court estimated to be 14% to 20% of the value of the injunctive relief
secured on behalf of the class, under common fund doctrine in ECOA action); Cason v.
Nissan Motor Acceptance Corp., No. 98-cv-223 (M.D. Tenn. Mar. 27, 2003) (Dkt. No.
590, 605) (margin order in ECOA action awarding $6 million in attorneys’ fees, which
represents 15% of the value of the common benefit obtained for the class) (margin order
and memorandum in support of order attached as Ex. 9).
9
Although the D.C. Circuit has not directly addressed the question, in Swedish Hospital
it cited with approval a number of securities and antitrust cases where the courts applied
the percentage-of-the-fund approach, even though fee-shifting statutes were available in
those cases. Swedish Hosp. Corp., 1 F.3d at 1367 (citing In re Workers Comp. Ins.
Antitrust Litig., 77 F. Supp. 284 (D. Minn. 1991); In re SmithKline Beeckman Corp. Sec.
Litig., 751 F. Supp. 525 (E.D. Pa. 1990); and In re Activision Sec. Litig., 723 F. Supp.
1373, 1377-78 (N.D. Cal. 1989)).
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common fund method approximates the contingent fee arrangements that compensate
attorneys in the market and aligns the interests of the class and counsel in achieving
success, while the lodestar method used in fee-shifting cases is meant to ensure that
reliable compensation, paid by the opposing party, is available to attorneys who offer
private enforcement of certain statutes even where the results obtained are modest or
nonmonetary. Swedish Hosp. Corp., 1 F.3d at 1268-70. Tying fees from common funds
to the lodestar amount is undesirable because it fails to align class counsel’s interest with
that of the class; encourages inefficiency (as class counsel may be incentivized to prolong
litigation and bloat their hours with the understanding that their reported hours would not
be challenged in a truly adversarial context); and imposes greater demands on scarce
judicial resources. Id. at 1268-69. Therefore, the limitations on the lodestar applied by
the Supreme Court in fee-shifting cases do not apply to common fund cases, which are
properly treated as a different animal altogether. See, e.g., Swedish Hosp. Corp., 1 F.3d
at 1269 (“We disagree with the proposition that Burlington and King mandate an
unenhanced lodestar approach in common fund cases.”); see also In re Washington
Public Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1301 (9th Cir. 1994) (holding that the
district court abused its discretion in refusing to award a multiplier in common fund
case). For these reasons, the Supreme Court’s recent decision in Perdue v. Kenny A, 130
S. Ct. 1662 (2010), which addressed limitations on the calculation of attorneys’ lodestar
fees under fee-shifting statutes, is inapplicable.10 See, e.g., Klein v. O’Neal, Inc., 705 F.
Supp. 2d 632, 683 (N.D. Tex. 2010) (“[T]he Supreme Court did not purport to overrule
10
Perdue held that the amount of attorneys’ fees available under federal fee-shifting
statutes, such as 42 U.S.C. § 1988, is presumptively the lodestar amount, 130 S. Ct. at
1673, and concluded that enhancements of the lodestar amount in federal fee-shifting
cases should be considered only in “rare circumstances.” Id.
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the reasoning or results of common fund fee awards. . . . Perdue therefore neither
requires nor suggests that this court reconsider [its prior percent of the fund award in a
common fund case].”); Dewey v. Volkswagen of Am., --- F. Supp. 2d ----, 2010 U.S. Dist.
LEXIS 79304, at *27, *45 (D.N.J. July 30, 2010) (noting that post-Perdue, lodestar
multipliers are rarely permitted in fee-shifting cases, but that in common fund cases
where awards are based on percentage of the fund, multipliers are often appropriate, even
where fees might alternately be available under a fee-shifting statute); Lambrecht v.
Taurel, No. 08-cv-68, 2010 U.S. Dist. LEXIS 75633 at *8-10 (S.D. Ind. June 8, 2010)
(concluding that Perdue did not preclude award of a multiplier in common fund case);
Navarro v. Servisair, No. 08-cv-02716, 2010 U.S. Dist. LEXIS 41081 at *5-12 (N.D.
Cal. Apr. 27, 2010) (citing Perdue in the context of lodestar multipliers, and awarding a
multiplier in common fund case after noting that the “Ninth Circuit has expressed general
approval of multipliers between 1.0 and 4.0 in common fund cases”).11
11
Three district courts in the Sixth Circuit have suggested that Perdue counsels against
large multipliers even in common fund cases, as under Sixth Circuit precedent no firm
distinction exists between fee analyses under the common fund and lodestar methods for
computing fees. See Van Horn v. Nationwide Prop. & Cas. Ins. Co., No. 08-cv-605,
2010 U.S. Dist. LEXIS 42357 at *16-*21 (N.D. Ohio Apr. 30, 2010) (suggesting that
Perdue provides “persuasive caution” that multipliers should be used infrequently but
nonetheless awarding 1.2 times lodestar for a recovery that the court did not believe was
“outstanding”); Lonardo v. Travelers Indem. Co., 706 F. Supp. 2d 766, 816 (N.D. Ohio
2010) (noting that the objector to the settlement seeking fees conceded that Perdue
precluded the enhancement of the lodestar amount); Eppard v. ViaQuest, Inc., No. 09-cv234, 2010 U.S. Dist. LEXIS 122769 at *6-10 (S.D. Ohio Nov. 2, 2010) (concluding that
the settlement at issue did not create a common fund, but continuing that under Sixth
Circuit precedent, Perdue counseled in favor of awarding the lodestar amount
regardless). Those decisions conflict with the binding precedent of this Circuit, which
clearly distinguish the two approaches.
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B.
The Fee Award Sought by Counsel Is at the Lower End of the Range
Applied in Common Fund Cases.
At 8% of the monetary relief benefiting the class, the award of attorneys’ fees and
costs sought here falls well below the range typically awarded in common fund cases.
The majority of fee awards in common fund cases in the D.C. Circuit and nationally fall
within a 20% to 30% range, with 25% often used as a benchmark. See Swedish Hosp.
Corp., 1 F.3d at 1263, 1272 (affirming an award of 20% of the common fund and noting
that “a majority of common fund class action fee awards fall between twenty and thirty
percent”); In re Dept of Veterans Affairs Data Theft Litig., 653 F. Supp. 2d at 61 (“The
majority of fee awards nationally appear to fall in a range of 20 percent to 30 percent of
the common fund.”); Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 n.4 (9th Cir.
2002) (summarizing fees awarded in 34 common fund settlements from 1996-2001); id.
at 1047-48 (noting that the benchmark award in the Ninth Circuit is 25%); 4 Alba Conte
and Herbert Newberg, Newberg on Class Actions § 14.6 at 568 (4th ed. 2002) (noting that
many courts apply a benchmark of 25% of the award); see also In re Lorazepam, 2003
U.S. Dist. LEXIS 12344, at *33 (30% fee award); In re Baan Co. Sec. Litig., 288 F.
Supp. 2d 14, 17 (D.D.C. 2003) (28% fee award). Courts in the D.C. Circuit have
awarded fees of up to 45% of the common fund. See Wells v. Allstate Ins. Co., 557 F.
Supp. 2d 1, 7-8 (D.D.C. 2008) (45% fee award). In view of the typical benchmarks, class
counsel’s request of an award totaling 8% of the settlement fund is conservative.
The award of attorneys’ fees and expenses sought herein represents 2.3 times the
total of counsel’s actual past fees and expenses and projected additional fees and
expenses through administration of the Settlement. This multiplier is well within the
range approved by courts in the D.C. Circuit and other circuits. The D.C. Circuit, for
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example, approved a multiplier of 3.2 in Swedish Hosp. Corp., 1 F.3d at 1263, 1272, and
multipliers of up to 4 are common throughout the federal courts. See, e.g., In re
Lorazepam, 2003 U.S. Dist. LEXIS 12344, at *32 (observing that “multiples ranging up
to four are frequently awarded in common fund cases”); Wal-Mart Stores v. VISA USA,
Inc., 396 F.3d 96, 123 (2d Cir. 2005) (noting that “multipliers of between 3 and 4.5 have
become common”); Vizcaino, 290 F.3d at 1051 & n.6 (approving a multiplier of 3.65 and
noting that it fell within typical range for common fund cases). Further, courts have
awarded fees representing significantly higher multipliers in cases with large recoveries
comparable to the monetary relief obtained here. See, e.g., In re UnitedHealth Group
Inc. PLSRA Litig., 643 F. Supp. 2d 1094, 1106 (D. Minn. 2009) (6.5 multiplier); In re
Enron Corp. Sec. Litig., 586 F. Supp. 2d 732, 791 (S.D. Tex. 2008) (5.2 multiplier); In re
Cardinal Health, Inc. Sec. Litig., 528 F. Supp. 2d 752, 770 (S.D. Ohio 2007) (6
multiplier); In re WorldCom, Inc. Sec. Litig., 388 F. Supp. 2d 319, 359 (S.D.N.Y. 2005)
(4 multiplier); In re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465, 488-89
(S.D.N.Y. 1998) (3.97 multiplier).
C.
The Award of Attorneys’ Fees and Costs Should be Based on the Full
Amount of Monetary Relief Awardable to the Class.
Pursuant to the Settlement Agreement, counsel may seek a fee of between 4% and
8% of the full $760 million in monetary relief secured for the class, comprising a cash
fund in the amount of $680 million and debt relief, the total amount of which may not
exceed $80 million. Settlement Agreement at XV.B, Dkt. No. 576. As this Court has
recognized, common fund awards are typically based on the total relief made available to
the class, rather than on the amount ultimately claimed. See In re Dept of Veterans Affairs
Data Theft Litig., 653 F. Supp. 2d at 60 (noting that “the national trend, and the trend in
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this Circuit, is toward awards that represent a percentage of the total common fund”
rather than of the amount actually claimed). This approach ensures that counsel are
compensated for the full monetary benefit made available to the class through their
efforts. As the Supreme Court explained in upholding an award of attorneys’ fees in
Boeing Co. v. Van Gemert, the award of fees should be based on the total fund created,
rather than the amount actually claimed, because class members’ “right to share the
harvest of the lawsuit . . . whether or not they exercise it, is a benefit in the fund created
by the efforts of the class representatives and their counsel.” 444 U.S. 472, 480 (1980);
see also Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 437 (2d Cir. 2007)
(holding that because “[t]he entire Fund, and not some portion thereof, is created through
the efforts of counsel at the instigation of the entire class, . . . [a]n allocation of fees by
percentage should therefore be awarded on the basis of the total funds made available,
whether claimed or not.”); Williams v. MGM-Pathe Cmmcn’s. Co., 129 F.3d 1026, 1027
(9th Cir. 1997) (holding that the district court abused its discretion by basing the fee on
the amount class members claimed against the fund rather than on a percentage of the
entire fund). As a result, the fee award sought here is properly based on the total
monetary relief made available for the class, which consists of a $680 million cash fund
from which damages awards will be paid, and $80 million payable as debt relief for class
members. See, e.g., Dewey, --- F. Supp. 2d. ---, 2010 U.S. Dist. LEXIS 79304, at *108
(noting that the percentage of the fund method is appropriate “where the economic reality
of the settlement is akin to a common fund”). The possibility that some portion of this
monetary relief either may be disbursed to cy pres beneficiaries if the claims for damages
do not deplete that fund, or revert to the United States if the full fund for debt relief is not
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depleted, does not diminish the economic value of the relief available to the class and,
therefore, should not affect the amount of attorneys’ fees awarded. See Waters v. Int’l
Precious Metals Corp., 190 F.3d 1291, 1298 (11th Cir. 1999) (affirming award of fee
based on percentage of total $40 million made available to class as cash payments and
promissory notes, though only $6.5 million was actually claimed and amounts not
claimed or paid as fees reverted to defendant); Williams, 129 F.3d at 1027 (holding that
fee should be a percentage of the full settlement amount, even though the unclaimed
portion reverted to defendant).
As a practical matter, however, the full economic value of the Settlement will
likely inure to the benefit of the class. First, in the event that any portion of the $680
million fund is not exhausted by the end of the claims period, any remaining balance
would, subject to review and approval by the Court, be payable as cy pres awards for the
benefit of all Native American farmers and ranchers. Second, while the Agreement
provides that any amount of the $80 million in debt relief funds that is unclaimed will
revert to the United States, such an event is unlikely. See O’Brien Decl. at ¶¶ 7-8 (Ex. 2).
Agricultural economist Pat O’Brien estimates that $193 million in FSA loan debt is owed
by Native Americans, and based on analysis of when the underlying loans were obtained
in relation to the class period, he predicts that the class would likely claim the entire $80
million in available debt relief. Id. at ¶¶ 3-8.
D.
The Requested Fee Award Is More than Justified by the Efforts and
Risks Undertaken by Counsel and the Extraordinary Results
Achieved in this Case.
The efforts of class counsel and the outstanding result for the class fully support
the requested fee award. In general, this Court looks to seven factors in determining the
reasonableness of a requested fee award based on the percentage-of-the-fund method:
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(1) the size of the fund created and the number of persons benefitted; (2) the presence or
absence of substantial objections by members of the class to the settlement terms and/or
to the attorneys’ fees requested; (3) the skill and efficiency of the attorneys involved;
(4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the
amount of time devoted to the case by plaintiffs’ counsel; and (7) the awards in similar
cases. Wells, 557 F. Supp. 2d at 6-7; In re Lorazepam, 2003 U.S. Dist. LEXIS 12344, at
*27 (citing Gunter, 223 F.3d at 195 n.1); In re Baan Co. Sec. Litig., 288 F. Supp. 2d at
17. A review of these factors makes clear that the fee request is reasonable.
1.
Class Counsel Obtained a Substantial Benefit for the Class.
Class counsel obtained monetary relief for the class in an amount of $760 million.
This represents an exceptional recovery for the class. The damage fund alone, comprised
of $680 million, represents a recovery of 88% of the monetary relief that Plaintiffs could
have recovered were they to prevail entirely at trial. With the addition of the $80 million
made available to extinguish outstanding debt, the Settlement represents a recovery of
98% of the monetary relief that the Plaintiffs could have recovered were they to prevail
entirely at trial. See Motion for Class Certification, Ex. 2, Dkt. No. 551-4 (Dec. 4, 2009),
at 6-7. Given the risks that this Court may have denied Plaintiffs’ motion to certify a
class for the monetary claims, that Plaintiffs might have lost at trial, or that Plaintiffs
might have prevailed on the merits but been awarded lesser damages, the sizeable
settlement fund obtained by class counsel represents an extraordinary achievement.
The robust settlement fund will ensure that a substantial number of class members
can benefit from the monetary relief in this Settlement. While the precise number of
class members who will make claims through this Settlement is hard to predict, census
counts of the number of Native Americans engaged in farming and ranching may offer
27
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some estimate of the general order of magnitude of the likely claimant population. The
2007 Census of Agriculture reports that there were 61,000 Native Americans engaged in
farming or ranching in that year alone. Because this suit extends back to 1981, there are
undoubtedly many Native Americans who moved into and out of farming during the class
period, such that the total number of potential claimants could exceed those whom the
recent census counted as presently engaging in farming and ranching. Moreover, the
programmatic relief will have a beneficial effect on most, if not all, current Native
American farmers, as well as those in future generations. Similarly, even if any portion
of the cash settlement fund is not claimed by class members, it will revert to a cy pres
beneficiary approved by this Court that provides “agricultural, business assistance, or
advocacy services to Native American farmers and ranchers,” Settlement Agreement at
II.I; IX.F.7, thus benefiting Native American farmers and ranchers generally.
Moreover, through the use of the Track A procedure, with its low threshold for
obtaining relief, class counsel have negotiated a settlement that should permit the
majority of the claimants to receive a substantial sum from the common fund.12 Class
members who make meritorious claims pursuant to Track A are eligible to receive an
award of up to $50,000, plus an additional payment equal to 25% of the cash award to
offset the tax consequences of the award. Class members who bring meritorious claims
pursuant to Track B are eligible to receive their actual damages, up to $250,000. In
addition, all successful claimants are eligible for debt forgiveness, as well as additional
12
Additionally, as previously described to the Court, class counsel structured this
Settlement to avoid several of the problems that arose during the claims process in the
Pigford litigation. See Joint Memorandum in Further Support of Proposed Settlement,
Dkt. No. 573.
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payments to offset taxes on the debt forgiveness. See Motion for Preliminary Approval at
7-10, Dkt. No. 571. Furthermore, in recognition of the likelihood that the amount
available for debt relief will be exhausted, leaving at least some class members with
outstanding debt, the Settlement provides that the Secretary will offer an additional round
of primary loan servicing to successful claimants who are delinquent in the re-payment of
a USDA farm loan.13 The Secretary has also established a moratorium on adverse loan
actions from the date of preliminary approval of the Settlement (November 1, 2010)
through the end of the claims process. Thus, individual class members stand to receive
substantial value from the Settlement.
2.
No Class Members Have Objected to the Fee Provision in the
Settlement Agreement to Date
Notice provided to potential class members stated that class counsel would seek
up to 8% of the $760 million fund in fees and expenses, as set forth in the Settlement
Agreement. Class members may submit objections to the Settlement, including the
proposed fee award, until February 28, 2011. Although the time for submitting an
objection has not lapsed, as of this writing only one objection to the terms of the
Settlement has been received since Notice was broadly given in mid-November, and that
objection did not raise any concerns regarding the amount of the attorneys’ fees and costs
sought.14 Additionally, class counsel have already attended several meetings with class
13
Loan servicing options available to successful claimants include a reduction in the
outstanding principal of federal loan debt, a reduction in the interest on such debt, or
other servicing options.
14
The objection only opposes the temporal limitation on the class definition, asserting
that the class should encompass current farmers and ranchers who have recently
experienced discrimination by the USDA. See Objection of Dustin Denton (attached as
Ex. 10). One “Notice to Appear” has also been filed; the author does not voice any
29
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members regarding the Settlement, see Status Report (Dec. 15, 2010), Dkt. No. 580, and
have found that the Settlement Agreement has been well-received to date.
3.
Class Counsel Demonstrated Considerable Skill and
Efficiency.
Class counsel are leading practitioners in the fields of civil rights, complex federal
litigation and farming and Indian law who have brought their expertise to bear on this
particularly complex and protracted case. As detailed in the attached declarations, class
counsel are experienced litigators at some of the nation’s preeminent firms. But more
important to the outcome of this case is the uniquely well-balanced composition of the
class counsel team, which brought together attorneys from different firms with distinct
sets of skills and experiences relevant to this action.
The team includes attorneys Anurag Varma, David Frantz, and Phillip Fraas, who
litigated the Pigford suit on behalf of African American farmers; these attorneys brought
with them knowledge of the USDA farm loan programs and direct experience in
litigating the types of claims brought here. Frantz Decl. at ¶ 5 (Ex. 3); Fraas Decl. at ¶¶
3-4 (Ex. 4); Varma Decl. at ¶ 4 (Ex. 7). Fraas also brought expertise in agricultural
regulation and programs, having served as Chief Counsel of the House Committee on
Agriculture and Deputy Counsel of the Senate Committee on Agriculture, Nutrition, and
Forestry. Fraas Decl. at ¶3 (Ex. 4). Class counsel also includes Sarah Vogel, who
previously served as a North Dakota Commissioner of Agriculture, advisor on the Equal
Credit Opportunity Act at the Federal Trade Commission, counsel to a number of Native
American grazing organizations, and counsel in other successful class actions against the
objections but requests the opportunity to speak on her families’ behalf at the April 28,
2011 hearing. Dkt. No. 579.
30
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USDA. Vogel Decl. at ¶¶ 4-6 (Ex. 6). Vogel came to this case with a deep background
in credit access and agricultural lending issues, as well as with strong relationships with
Native American ranching communities. Vogel’s location in North Dakota, close to
several of the class representatives and many Native American farming and ranching
communities, was also an asset. Id. at ¶ 4. The team is led by Joseph Sellers, Christine
Webber, and other attorneys from Cohen Milstein Sellers & Toll, a class action law firm
with extensive experience litigating large civil rights class actions, Sellers Decl. at ¶¶ 4-5
(Ex. 1), and includes distinguished attorneys from Jenner & Block who are experienced
in class action litigation and specialize in complex federal litigation. Smith Decl. at ¶¶ 34 (Ex. 5). The result is a collective far greater than the sum of its parts.
Together, this team was able to move this action forward and achieve significant
relief on behalf of the class. For example, even though similar cases were denied class
certification, see Love v. Veneman, 224 F.R.D. 240 (D.D.C. 2004), aff’d sub nom Love v.
Johanns, 439 F.3d 723 (D.C. Cir. 2006) (denying class certification for similarly situated
women farmers) and Garcia v. Veneman, 224 F.R.D. 8 (D.D.C. 2004), aff’d sub nom
Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006) (denying class certification for
Hispanic farmers), class counsel succeeded in not only certifying a class here, but in
defending certification over the course of two appeals to the D.C. Circuit and numerous
requests for reconsideration.
Additionally, despite the duration of litigation and the number of different firms
and attorneys who participated as class counsel over time, class counsel were able to
litigate efficiently by relying on their extensive experience in civil rights class action
litigation and a centralized work assignment process. Sellers Decl. at ¶¶ 6-7 (Ex. 1). In
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particular, counsel pursued a tailored discovery plan, ensuring that time spent in
reviewing the substantial document production and taking numerous depositions was
targeted to the information needed to support certification and to prove liability and
damages. Id.
4.
The Complexity and Long Duration of this Case Support Class
Counsel’s Fee Request.
Class counsel have labored on this case since 1999, and class counsel litigated this
case against a skilled and determined adversary, as the Secretary mounted an aggressive
and vigorous defense at every stage of the litigation. The USDA twice sought to overturn
the Court’s class certification decision, an effort that was ultimately unsuccessful but
demanded substantial time and resources to rebuff. The complexity and duration of this
litigation is reflected in the nearly six hundred docket entries entered in this case. As this
Court has previously recognized, the parties have been in the “trenches” litigating this
matter. Status Hearing Tr. at 9 (Oct. 6, 2010). All told, in addition to the millions of
pages of documents exchanged in the case and approximately 100 depositions conducted,
class counsel filed approximately 75 separate memoranda of law, apart from status
reports and briefing before the D.C. Circuit.
Other factors such as geography and the novelty of the issues involved rendered
this case particularly challenging. The class in this case is likely to be large and
dispersed across the United States. Indeed, class counsel conducted approximately 800
interviews of potential class members, and took approximately 100 depositions in 13
states. Furthermore, given the age of this case—the class includes victims of
discrimination dating back as far as 1981—class counsel had to clear significant hurdles
in locating evidence to support discrimination claims; this issue was particularly salient
32
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because the USDA destroyed many documents, and failed to implement a proper
litigation hold, which eventually resulted in class counsel filing a Motion for an Order
Governing the Means by which Plaintiffs could Establish Class Membership in the
Action. Dkt. No. 529. In addition, as discussed below, class counsel grappled with
extraordinarily complex legal issues in litigating this claim, which further justifies a full
award of fees.
5.
Class Counsel Faced Significant Risk of Non-Payment.
Class counsel undertook monumental efforts in this case without receiving any
payment, and faced a significant risk that they would never receive compensation for the
work they performed on behalf of the class. As evidence that class counsel faced a
substantial risk that they might be denied compensation altogether, we need look no
further than the fate of the cases, originally styled as class actions, brought by women and
Hispanic farmers in the Love v. Vilsack and Garcia v. Vilsack cases. Class certification
was denied in both cases. See Love v. Veneman, 224 F.R.D. 240 (D.D.C. 2004), aff’d sub
nom Love v. Johanns, 439 F.3d 723 (D.C. Cir. 2006) (denying class certification for
similarly situated women farmers); Garcia v. Veneman, 224 F.R.D. 8 (D.D.C. 2004),
aff’d sub nom Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006) (denying class
certification for Hispanic farmers). The risk in this case did not end with the certification
of a class for injunctive and declaratory relief: When the Settlement was announced,
Plaintiffs’ Motion for an Order Governing the Means by which Plaintiffs could Establish
Class Membership in this Action was still pending. The premise of this motion was that
due to the USDA’s alleged failures to properly maintain civil rights complaints and to
implement an appropriate litigation hold, Plaintiffs’ access to evidence establishing class
membership was limited. Had the Court denied the motion, counsel could have faced
33
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significant difficulty in establishing membership in the class for many Native American
farmers and ranchers.
Moreover, were this case to proceed to trial, Plaintiffs would inevitably confront a
variety of risks that the result at trial would be less than optimal. Beyond the basic risk
that the trier of fact might not accept Plaintiffs’ theory of the case, there were unique
challenges here created by the USDA’s failure to retain records for farm loan applications
denied before 1999 as well as other gaps in records resulting from the USDA’s failure to
implement a proper litigation hold. See Motion for an Order Governing the Means by
which Plaintiffs could Establish Class Membership in this Action (Dkt. No. 529).
Further, this lack of documentary evidence could make class claims especially dependent
on the testimony of witnesses, whose memories may be affected by the passage of time.
The expert testimony on which Plaintiffs would have relied substantially to establish
liability, moreover, was vigorously rebutted by the USDA, further putting in question
Plaintiffs’ ability to establish classwide liability and to present a reliable measure of
economic harm to the class.
6.
Class Counsel Devoted Substantial Effort to Achieving this
Settlement.
Class counsel devoted tremendous time and effort over the past eleven years to
ensuring the successful resolution of this case on Plaintiffs’ behalf, and counsel will
continue to devote substantial time and effort over the next five years to ensure successful
implementation of the Settlement. Through November 30, 2010, class counsel devoted
over 40,000 hours to this case. See supra Section I.C.1. These hours include time spent
defending against the USDA’s multiple motions for judgment on the pleadings and
summary judgment, substantial litigation of class certification, five years of extensive and
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hard-fought discovery, briefing of two interlocutory appeals to the DC Circuit, and ten
months of focused settlement negotiations. Significantly, the substantial time required to
pursue this protracted hotly-contested litigation deprived class counsel of the opportunity
to invest time and resources into other cases. Both the tremendous amount of time class
counsel have devoted to this case without assurance of compensation, and the opportunity
cost of involvement in such intensive and protracted litigation, factor in support of the fee
request.
The award of attorneys’ fees and costs being sought will provide the sole
compensation for counsel’s work on behalf of the class. In addition to class counsel’s
investment of time through November 30, 2010, which represents fees of
$16,246,882.80, counsel has incurred $1,637,057.68 in unreimbursed expenses. See
supra Section II.C.1. And over the prospective five-year settlement term, class counsel
have agreed, among other things, to assist geographically-dispersed class members
pursuing Track A claims, to implement an extensive notice plan, to monitor and consult
regarding programmatic change at the USDA, and to answer questions and provide status
updates to members of the large class. As described above, class counsel project they
will devote approximately 1500 additional hours, valued at $650,000, to follow through
on the Settlement. Counsel also project an additional $6.5 million in fees for paralegals
and attorneys hired specifically to assist class members with claims, for a total of
approximately $7.1 million in fees beyond those incurred through November 30, 2010.
Id. Finally, counsel anticipate future expenses of approximately $1.5 million, which will
include costs of travel and equipping the new employees. Id. In sum, counsel project
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their total fees and expenses for litigating this case and seeing it through the
implementation of the Settlement will come to over $26.5 million.15
7.
The Award Sought in this Case Compares Favorably with
Awards in Similar Cases.
The award of attorneys’ fees and costs sought in this case is consistent with
awards in other large common fund cases. The award, formulated as 8% of the $760
million monetary relief available to the class, amounts to $60.8 million. As noted above,
counsel project their fees and expenses for litigating this case and administering the
Settlement will total approximately $26.5 million. The award sought will be counsel’s
only compensation for these efforts and investments. As a result, the award of attorneys’
fees and costs requested constitutes a multiple of 2.3 times the attorneys’ fees and costs
already incurred and projected during the settlement administration.16
As detailed above, the award of attorneys’ fees and costs sought here is less than a
third of the standard benchmark awarded in common fund cases, and roughly half the
amount of attorneys’ fees and costs commonly awarded in cases with a large common
fund. See In re Lorazepam, 2003 U.S. Dist. LEXIS 12344, at *26 (“fees of fifteen
15
Summing class counsel’s actual fees and expenses incurred through November 30,
2010 with the projected fees and expenses for fulfilling their Settlement obligations
yields $26,533,940.48 in total fees and expenses. See Decl. of Sellers at ¶ 22 (Ex. 1).
16
This total lodestar calculation reflects counsel’s actual past fees and expenses and best
projection of future fees and expenses. The “lodestar cross-check calculation need entail
neither mathematical precision nor bean-counting,” and “may rely on summaries
submitted by the attorneys.” In re Rite-Aid Corp. Sec. Litig., 396 F.3d 294, 306-07 (3d
Cir. 2005). Additionally, because the percentage of the fund award is counsel’s only
compensation for all past and future fees and expenses, the multiplier appropriately
compares the full amount sought to the full amount that will be expended. However,
even if the multiplier were calculated only with respect to past lodestar fees, with actual
expenses and future fees taken off the top of the award at their actual amounts, the
multiplier would still be well within the typical range, amounting to approximately 3.1.
36
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percent are common” in mega-fund cases) (citing Shaw v. Toshiba Am. Info. Sys., Inc., 91
F. Supp. 2d 942, 989 (E.D. Tex. 2000) (surveying cases)).
Further, fees awarded pursuant to the common fund doctrine frequently represent
multiples of up to 4 times the lodestar. See In re Lorazepam, 2003 U.S. Dist. LEXIS
12344 at *32 (observing that “multiples ranging up to four are frequently awarded in
common fund cases”) (citing In re Prudential Ins. Co. of Am. Sales Practices Litig., 148
F.3d 283, 341 (3d Cir. 1998)); Wal-Mart Stores, Inc. v. VISA USA, Inc., 396 F.3d 96, 123
(2d Cir. 2005) (noting that “multipliers of between 3 and 4.5 have become common” and
approving a multiplier of 3.5 in mega-fund case) (quotation marks omitted); Vizcaino v.
Microsoft Corp., 290 F.3d 1043, 1051 & n.6 (9th Cir. 2002) (approving a multiplier of
3.65 and noting that it fell within the typical range in common fund cases). The D.C.
Circuit has previously approved a multiple of 3.2 times the lodestar. See Swedish Hosp.
Corp., 1 F.3d at 1263, 1272. Other courts have approved significantly higher multipliers
in cases that resulted in recoveries similar to that obtained here. See, e.g., In re
UnitedHealth Group Inc. PLSRA Litig., 643 F. Supp. 2d 1094, 1106 (D. Minn. 2009)
(approving multiplier of 6.5 times lodestar in mega-fund settlement of $925 million); In
re Enron Corp. Sec. Litig., 586 F. Supp. 2d 732, 791 (S.D. Tex. 2008) (approving
multiplier of 5.2 times lodestar in mega-fund settlement of $7.2 billion); In re Cardinal
Health, Inc. Sec. Litig., 528 F. Supp. 2d 752, 770 (S.D. Ohio 2007) (awarding multiplier
of 6 times lodestar in mega-fund settlement of $600 million); In re WorldCom, Inc. Sec.
Litig., 388 F. Supp. 2d 319, 359 (S.D.N.Y. 2005) (approving multiplier of four times
lodestar in mega-fund settlement totaling $6.1 billion); In re NASDAQ Market-Makers
Antitrust Litig., 187 F.R.D. 465, 488-89 (S.D.N.Y. 1998) (approving lodestar multiple of
37
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3.97 in mega-fund settlement of $1.027 billion). The multiplier of 2.3 in this case,
therefore, would fall well within the typical range of such awards, and is much lower than
multipliers frequently awarded in cases with large common funds.
Whether evaluated by the percentage of the common fund available to the class or
as a multiple of the lodestar, therefore, the amount of the attorneys’ fee and costs sought
in this case is reasonable and well within the range of attorneys’ fees and costs awarded
in other cases where large common funds were created.
IV.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court award
attorneys’ fees and costs from the common fund in the amount of $60.8 million.
January 14, 2011
/s/ Joseph M. Sellers___________
Joseph M. Sellers
Christine E. Webber, Bar No. 439368
Peter Romer-Friedman, Bar No. 993376
TOLL PLLC
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
Paul M. Smith, Bar No. 358870
Katherine A. Fallow, Bar No. 462002
Jessica Ring Amunson, Bar No. 497223
Carrie F. Apfel, Bar No. 974342
JENNER & BLOCK LLP
1099 New York Ave., N.W.
Suite 900
Telephone: (202) 639-6000
Facsimile: (202) 639-6066
David J. Frantz, Bar No. 202853
CONLON, FRANTZ & PHELAN
1818 N Street, N.W.
Suite 400
Telephone: (202) 331-7050
Facsimile: (202) 331-9306
Anurag Varma, Bar No. 471615
PATTON BOGGS LLP
2550 M Street, N.W.
Telephone: (202) 457-6000
Facsimile: (202) 457-6315
Phillip L. Fraas
STINSON MORRISON HECKER
1150 18th St. NW, Suite 800
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Filed 01/14/11 Page 46 of 47
Telephone: (202) 785-9100
Facsimile: (202) 785-9163
Sarah Vogel
SARAH VOGEL LAW PARTNERS
222 N. 4th St.
Bismarck, ND 58501
Telephone: (701) 221-2911
Facsimile: (701) 221-5842
Attorneys for Plaintiffs
39
Filed 01/14/11 Page 47 of 47
CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of January, 2011, the foregoing was served
via the Court’s ECF system, which will cause an electronic copy to be sent to all counsel
of record in the case.
/s/ Joseph M. Sellers___________
TOLL PLLC
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
EXHIBIT 1
)
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
Defendant.
(EGS)
DECLARATION OF JOSEPH M. SELLERS IN SUPPORT OF PLAINTIFFS’ MOTION
FOR AN AWARD OF ATTORNEYS’ FEES AND EXPENSES
I, Joseph M. Sellers, hereby declare as follows:
1.
I am a partner in the Washington, D.C. office of Cohen, Milstein, Sellers & Toll,
P.L.L.C. (“Cohen Milstein”), and lead counsel in the above-captioned case. The statements set
forth in this Declaration are based on first-hand knowledge, about which I could and would
testify competently in open Court if called upon to do so, and on records contemporaneously
generated and kept by my Firm in the ordinary course of its law practice. This Declaration is
submitted in support of Plaintiffs’ Motion for an Award of Attorneys’ Fees and Expenses.
2.
In November 2001, following the Court’s certification of a class for declaratory
and injunctive relief, Cohen Milstein joined Phillip Fraas, Sarah Vogel, and attorneys from
Conlon, Frantz & Phelan, LLP in representing the plaintiffs in this matter. From that point
forward, Cohen Milstein served as lead counsel with Conlon, Frantz & Phelan, LLP and Phillip
Fraas. In 2007, Jenner & Block joined in representing plaintiffs.
3.
This has been a vigorously contested, and unusually protracted lawsuit. Since the
filing of the complaint in 1999, the parties have filed approximately 75 memoranda of law in this
1
Court and briefed disputed issues twice for the D.C. Circuit. Class counsel also engaged in
extensive factual investigation and discovery of claims for a nationwide class estimated to
include thousands dating from 1981. In investigating these claims, class counsel interviewed
nearly 1000 Native American farmers and ranchers. Over the course of discovery, class counsel
traveled to 13 states to conduct 8 expert depositions, more than 40 depositions of Plaintiffs’ nonexpert witnesses, and more than 50 depositions of the USDA’s non-expert and Rule 30(b)(6)
witnesses. Further, the parties exchanged and reviewed more than two million pages of hard
copy and electronic documents, and produced ten reports from experts in the fields of social
psychology, sociology, agricultural economics, statistics, and farm loan programming of the
United States Department of Agriculture (“USDA”).
4.
I am the head of the Civil Rights & Employment practice group at Cohen
Milstein, where I have worked since 1997. Prior to joining Cohen Milstein, I served as head of
the Employment Discrimination Project of the Washington Lawyers' Committee for Civil Rights
and Urban Affairs for over 15 years. I have served as class counsel in more than 30 civil rights
and employment class actions, including Beck. v. Boeing Company (W.D. Wash.) (class of more
than 28,000 women employees alleging sex discrimination in pay and overtime decisions);
Conway, et al. v. Deutsch (E.D. Va.) (class of all female undercover case officers at the CIA
alleging sex discrimination in promotions and job assignments); Dukes v. Wal-Mart Stores, Inc.
(N.D. Cal.) (class of more than 1.5 million women employees at Wal-Mart stores alleging sex
discrimination in promotions and pay decisions); Johnson, et al. v. Freeh (D.D.C.) (class of
African-American FBI special agents alleging racial discrimination in promotion and job
assignments); Neal v. Director, D.C Dept. of Corrections (D.D.C.) (the first sexual harassment
class action tried to a jury); and Trotter, et al. v. Perdue Farms (D.Del.) (company-wide
2
collective action brought under the Fair Labor Standards Act). I have been recognized as one of
the top 10 plaintiffs’ employment lawyers in the country, and in 2010 was named one of “The
Decade’s Most Influential Lawyers” by The National Law Journal. I have also been active in
legislative and academic matters: I have testified more than 20 times before Committees of the
United States Senate and House of Representatives on various civil rights and employment
matters, and have taught at Washington College of Law at American University and Georgetown
University Law Center. I also served as a Co-Chair of the Task Force of the D.C. Circuit on
Gender, Race and Ethnic Bias upon appointment by judges of the D.C. Circuit and the U.S.
District Court for the District of Columbia.
5.
The Cohen Milstein attorneys who were principally involved in this litigation
have extensive experience in litigating civil rights class action lawsuits. Such experience
allowed Cohen Milstein attorneys to litigate this case efficiently and effectively. The
background, relevant qualification and experience of counsel from my firm who were principally
involved in this litigation are provided in the brief biographies attached hereto as Exhibit A.
6.
I have been involved in this case as counsel for plaintiffs since 2001. As
summarized above, I have substantial experience in litigating large-scale civil rights class action
lawsuits. Since becoming involved in this case more than 9 years ago, I have overseen the
coordination of work by the several firms and attorneys representing the class. In doing so, I
have endeavored to represent the interests of the plaintiffs in the fullest and most efficient way
possible. By using a centralized work assignment process and weekly class counsel coordination
calls, we have been able to litigate this case efficiently and avoid duplication of efforts while
leveraging the varying skills and expertise each firm and attorney brought to the representation
team. Additionally, we pursued a tailored discovery plan that ensured time spent in reviewing
3
the tremendous document production and deposing over 50 USDA witnesses was targeted to the
information needed to support certification and to prove liability and damages.
7.
Class counsel allocated litigation responsibility in this case among different
attorneys and firms according to their experience, expertise, and availability. Since entering
appearances in 2001, attorneys from Cohen Milstein have been primarily responsible for
delivering oral arguments, managing trial preparation strategy, serving as contact to opposing
counsel, and conducting settlement negotiations. Other responsibilities, including drafting
motions and memoranda of law, communicating with class representatives and other class
members, and conducting discovery, have been divided among attorneys from all of the firms
representing the class.
8.
The class counsel team includes several attorneys, including David Frantz of
Conlon, Frantz, & Phelan, LLP, Anurag Varma of Patton Boggs (and formerly of Conlon,
Frantz, & Phelan, LLP and Cohen Milstein), and Phillip Fraas of Stinson Morrison Hecker LLP,
who litigated similar issues regarding discrimination in USDA farm loan programming in
Pigford v. Vilsack, Civil Action No. 97-1978 (PLF) (D.D.C.), and returned to them in the related
case In re Black Farmers Discrimination Litigation, Case No. 1:08-mc-0511-PLF (D.D.C)
(“Pigford II”). Additionally, many attorneys on the class counsel team, including David Frantz
and Sarah Vogel, have other experience in the fields of USDA farm loan programs and
agricultural credit issues. Due to their experiences, class counsel entered this case with expertise
in USDA farm loan programming and operations, which allowed us to conduct discovery more
efficiently and effectively than would otherwise have been the case. Class counsel further
benefitted from the experience and expertise of attorneys from Jenner & Block, including Paul
4
Smith and Michael Brody, who specialize in complex federal litigation and have extensive
experience in class action litigation.
9.
Cohen Milstein’s compensation for the services rendered in this case and
reimbursement of expenses have been and are wholly contingent on the outcome.
10.
The records pertaining to the hours and expenses invested in this case by Cohen
Milstein are voluminous and reflect confidential information and privileged work product.
Therefore, rather than attach to this petition the detailed daily time and expense records, we
summarize these records here. We are prepared to submit the full records to the Court for
inspection in camera should the Court believe it necessary.
11.
Throughout the time we worked on this matter, our timekeepers have been
required to keep daily time-records, providing both amounts of time spent on discrete tasks and
descriptions of that work. These records are entered into a computer database, checked, and
maintained in computer-readable format.
12.
Through November 30, 2010, Cohen Milstein recorded 22,359.31 hours of
attorney, law clerk, and paralegal time spent on this matter, not including time for those
professionals who billed fewer than 10 hours to this matter. These hours were actually
expended, in the exercise of professional judgment, by the lawyers, paralegals and clerks
involved in this matter.
13.
Cohen Milstein charges for the services of its attorneys, paralegals, and law clerks
on the basis of hourly rates which reflect, among other things, years of practice and experience.
The lodestar calculation is made based upon current hourly rates for all current attorneys and
staff, and, for those who are no longer employed by Cohen Milstein, upon the billing rates for
such attorneys and paralegals in his or her final year of employment by the firm. The current (or
5
last) hourly rates for Cohen Milstein attorneys and staff who worked on this matter range from
$135 to $190 for law clerks, from $100 to $230 for paralegals, and from $295 to $785 for
attorneys. These hourly rates are consistent with the usual and customary hourly rates for the
Firm’s work performed for non-contingency fee clients. Our Firm’s hourly rates have been paid
by hourly clients and, separately, approved for payment by federal and state courts in other class
action litigation.
14.
Computed at their current or last hourly rates, Cohen Milstein attorneys,
paralegals, and law clerks have incurred $8,918,428.55 in lodestar fees. Exhibit B identifies
individuals who recorded time to this matter, the hours they expended, and their current or last
hourly rates.
15.
In calculating the above lodestar fee , we excluded hours billed by 8 attorneys and
14 paralegals, who each spent fewer than 10 hours on this case: Marc Machiz ($532.50), Lisa
Mezzetti ($510.00), Daniel Small ($340), Jenny Yang ($132.50), Ann Yahner ($330.00),
Matthew Handley ($3,630.00), Hilary Ratway ($177.50), Sahar Aziz ($2,507.50), Barabar Pratt
($1380.00), Imelda Rama ($230.00), Pamela Macker ($220.00), Shubba Chandra ($210.00),
Lauren DeStefano ($1900.00), Elena Takacs ($50.00), Donna Choi ($875.00), Rena Sachdev
($787.50), Emily Ouellette ($41.25), Katrina Jurgill ($577.50), Julia Rosenfield ($562.50), Lisa
Byun ($270.00), Kimberly Humphrey ($125.00), and Monica Dicocco ($687.50). I believe, with
those reductions, that the remaining time was reasonably and necessarily expended in the
prosecution of this action.
16.
Attorney Anurag Varma has worked for several different firms during the course
of this litigation. During a period from 2003 through 2006, Cohen Milstein paid for certain
hours that Mr. Varma worked on this case, and Mr. Varma’s time and fees for those hours were
6
entered into Cohen Milstein’s time records and are included in our above lodestar fee. In
calculating our lodestar, we used Mr. Varma’s last billing rate while he worked for Cohen
Milstein. Mr. Varma also worked for and was a partner of Conlon of Conlon, Frantz, & Phelan,
LLP and Patton Boggs at various times during the course of this litigation; his hours billed on
behalf of those firms are reported in David Frantz’ declaration regarding Conlon, Frantz, &
Phelan, LLP’s fees and expenses. The hours and fees reported here for Mr. Varma are not
duplicative of those reported by Mr. Frantz.
17.
Cohen Milstein’s lodestar figures are based upon the firm’s billing rates, which do
not include charges for expense items. Expense items are billed separately and such charges are
not duplicated in the firm’s billing rates.
18.
The expenses incurred in this action are reflected in Cohen Milstein’s expense
records. These records are prepared from expense vouchers, check records and other source
materials and are an accurate record of the expenses incurred.
19.
On behalf of the class, Cohen Milstein has incurred a total of $1,131,818.08 in
unreimbursed expenses in connection with the prosecution of this litigation. These expenses
were reasonably and necessarily incurred under the circumstances of this litigation. Exhibit C
provides a summary of the expenses incurred in furtherance of this case.
20.
I have reviewed the declarations of other class counsel attesting to the fees and
expenses incurred by their firms through November 30, 2010. The following table shows the
hours, fees, and expenses reported for each firm; the sums reflect the total amounts for all class
counsel:
7
Firm
Cohen Milstein Sellers & Toll PLLC
Conlon, Frantz & Phelan LLP
Sarah Vogel Law Partners
Phillip Fraas and Stinson Morrison Hecker
Patton Boggs LLP
Jenner & Block LLP
Total
21.
Hours
22,359.31
7,156.95
1,696.10
623.10
159.75
9,093.00
41,088.21
Fees
$8,918,428.55
$2,159,148.00
$593,635.00
332,742.50
$84,596.25
$4,158,332.50
$16,246,882.80
Expenses
$1,131,818.08
$192,953.82
$25,612.98
$2,892.68
$8,324.53
$275,455.59
$1,637,057.68
The fee award sought by class counsel is intended to compensate them not only for
past hours and expenses, but also for the future time and costs class counsel expect to expend in
implementing and monitoring the Settlement over its five year term. Pursuant to the Settlement,
class counsel has agreed, among other things, to assist—without additional charge—
geographically dispersed class members pursuing Track A claims; to implement an extensive
notice plan intended to inform Native American farmers and ranchers of the Settlement and to
educate them about the claims process; to monitor and consult regarding programmatic changes
at the USDA; to work with the Claims Administrators and Neutrals to ensure that both claims
tracks are properly implemented in accordance with the terms of the Settlement; and to answer
questions and provide status updates to members of the large class. I anticipate that class
counsel will expend significant time and incur substantial expenses in fulfilling our Settlement
obligations. For example, to ensure that appropriate assistance is available to class members
across the country seeking to submit Track A claims, class counsel intends to hire, train,
supervise, and equip approximately 56 paralegals and attorneys over the next year. We
anticipate that these paralegals and attorneys will generate approximately $6.5 million in fees.
Additionally, because the Settlement provides for the creation of unique new programs and
entities, such as the Council for Native American Farming and Ranching, I foresee that class
8
Filed 01/14/11 Page 10 of 28
counsel will have a substantial role in assuring that these new developments are carefully
implemented to achieve the goals embodied by the Settlement. Counsel will be involved in
helping to educate and recruit persons to serve on the new Council, and will consult with the
Office of Tribal Relations regarding USDA regulations, handbooks, instructions, and
administrative notices to ensure they are responsive to the unique features of Native American
Culture. Since November, class counsel has already devoted substantial time to proposing
programmatic changes and meeting with USDA officials to work through these proposals.
Based on our projections regarding the work we plan to perform in order to implement the
settlement, I anticipate that class counsel will devote an average of 20 hours a week for 50 weeks
in 2011; at an average billing rate of $500, this amounts to $500,000 in class counsel fees. We
also project that class counsel will incur approximately $150,000 in additional fees through the
remaining four years of the settlement term. These amounts are in addition to the $6.5 million in
fees we project our attorney and paralegals hired to assist class members with the claims process
will generate. Finally, we have projected that costs for travel, equipping the 56 contract
employees, and other expenses will total approximately $1.5 million. In sum, I project that class
counsel will incur an additional $7.15 million in fees and $1.5 million in costs, totaling $8.65
million in prospective fees and expenses we will incur in fulfilling our settlement obligations.
22.
Summing class counsel’s $16,246,882.80 in fees reported through November 30,
2010 (as calculated above in paragraph 20), with class counsel’s projected additional $7.15
million in fees for fulfilling our settlement obligations, yields estimated total fees of
$23,396,882.80. Summing class counsel’s $1,637,057.68 in expenses reported through
November 30, 2010 (as calculated above in paragraph 20), with class counsel’s projected
additional $1.5 million in expenses for fulfilling our settlement obligations, yields estimated total
9
Filed 01/14/11 Page 11 of 28
Filed 01/14/11 Page 12 of 28
EXHIBIT A
Filed 01/14/11 Page 13 of 28
Brief biographies of the Cohen Milstein Partners and Associates who provided over 10
hours of legal services in Keepseagle v. Vilsack, Civil Action No. 1:99CV03119, are provided
below:
Steven J. Toll
Steven J. Toll joined the Firm in 1979 and has been lead or principal counsel in some of the most
highly publicized stock fraud cases over the past 28 years. He has been Managing Partner of the
Firm since 1997 and is co-chair of the Securities Fraud/Investor Protection practice group. Mr.
Toll was profiled in the February 1996 Washington Business Journal as one of five attorneys that
stand out as the “cream of the crop” in the Washington D.C. legal community. Lawdragon
named him as one of the 500 Leading Lawyers in America in 2006-07-08, as well as naming him
one of the 100 Lawyers You Need to Know in Securities Litigation in 2008. In 2010, Mr. Toll
was named to Law360's "Most Admired Attorneys".
In July 2005, Mr. Toll was lead trial counsel in one of the few securities class actions to go to
trial involving Globalstar, a satellite manufacturer. Mr. Toll successfully argued the motions
before and during trial and ultimately achieved a settlement of $20 million shortly before the
case was scheduled to go to the jury. In approving the settlement, U.S. District Judge Kevin
Castel remarked that Mr. Toll and his colleagues had “done a terrific job in presenting the case
for the plaintiffs.”
Some of Mr. Toll’s other notable cases include those against Lucent Technologies, which was
settled in 2001 for approximately $575 million, at the time, the second largest securities class
action settlement ever achieved; Converium, where he negotiated a global settlement in the U.S.
courts and the courts in Amsterdam of $135 million; Southmark Securities Litigation, where he
helped achieve a settlement of $70 million from the company’s auditors, Drexel Burnham and
Michael Milken; Norman v. Salomon Smith Barney, where he negotiated a $50 million
settlement on behalf of customers of Salomon’s Guided Portfolio Management Program, who
alleged that Salomon invested their money in companies in order to boost Salomon’s investment
banking business.
Mr. Toll also served as co-lead counsel in one of the most publicized frauds of the 1990s -Cascade International (S.D. Fla.) where the mastermind of the fraud, Victor Incendy, is still a
fugitive from justice. The case settled on the eve of trial against Raymond James Inc. -- the only
securities class action ever successfully litigated against a brokerage firm for its role as a
research analyst.
He is currently leading the Firm’s team serving as co-lead counsel in one of the most highly
publicized fraud cases of this era, the securities fraud class action involving Parmalat, the Italian
dairy manufacturer; the case is known as Europe’s “Enron,” because of the similarities of the
fraudulent schemes and the non-existence of billions of dollars of assets that had been recorded
on Parmalat’s financial statements. He is also co-lead counsel in a major securities fraud action
against the Royal Bank of Scotland, who in early 2009 announced the largest loss in British
corporate history of over $30 billion.
Filed 01/14/11 Page 14 of 28
He has written for and spoken at various conferences about securities law and corporate
governance issues, including, inter alia, The Plaintiffs’ Perspective, Securities Regulation and
the New Law, National Legal Center for the Public Interest, No. 1, Sept. 1996; The SarbanesOxley Bill Provides No Assistance To Investors Seeking To Recovery From Corporate Fraud,
ABA Annual Meeting, August 2002; and The Analyst Cases Involving Merrill Lynch, and Its
Internet Analyst Henry Blodget, and Salomon Smith Barney and Its Telecommunications Analyst
Jack Grubman, Mass Torts Made Perfect (presented January 2003); Coming to Terms with Loss
Causation after Dura: A Response to Professors Portnoy, Ferrell, and Saha, Journal of
Corporation Law (publication pending).
Mr. Toll is an honors graduate of the Wharton School of the University of Pennsylvania (B.S.,
Accounting, cum laude, 1972). He graduated from Georgetown University Law Center (J.D.,
1975) where he was Special Project Editor of the Tax Lawyer.
Mr. Toll is admitted to practice in Virginia and the District of Columbia.
Joseph M. Sellers
Joseph Sellers, a Partner at the Firm and head of the Civil Rights & Employment practice group,
joined Cohen Milstein in 1997.
Mr. Sellers has represented victims of discrimination and other illegal employment practices
individually and through class actions. He has tried several civil rights class actions to judgment
before juries and has argued more than 25 appeals in the federal and state appellate courts,
including the United States Supreme Court. He has served as class counsel, and typically lead
counsel, in more than 30 civil rights and employment class actions.
Those cases have included: Beck. v. Boeing Company (W.D. Wash.), which included a class of
more than 28,000 women employees at Boeing facilities in Washington state alleging sex
discrimination in pay and overtime decisions; Conway, et al. v. Deutsch (E.D. Va.), for a class of
all female undercover case officers at the CIA alleging sex discrimination in promotions and job
assignments; Dukes v. Wal-Mart Stores, Inc. (N.D. Cal.), where the Court has certified the
largest class in such a case: more than 1.5 million women employees at Wal-Mart stores,
alleging sex discrimination in promotions and pay decisions; Johnson, et al. v. Freeh (D.D.C.),
for a class of African-American FBI special agents alleging racial discrimination in promotion
and job assignments; Keepseagle v. Veneman (D.D.C.), for a class of Native American farmers
and ranchers denied equal credit opportunities by USDA; Neal v. Director, D.C Dept. of
Corrections (D.D.C.), the first sexual harassment class action tried to a jury, for a class of
women correctional employees and women and men subject to retaliation at the D.C.
Department of Corrections; and Trotter, et al. v. Perdue Farms (D.Del.), for a company-wide
collective action brought under the Fair Labor Standards Act for violations of federal wage and
hour law.
Throughout his career, Mr. Sellers has also been active in legislative matters. He has testified
more than 20 times before Committees of the United States Senate and House of Representatives
on various civil rights and employment matters. He worked on the passage of the Civil Rights
Filed 01/14/11 Page 15 of 28
Act of 1991, the Americans with Disabilities Act of 1990, and the Lily Ledbetter Fair Pay
Restoration Act of 2009.
Mr. Sellers has trained lawyers at the U.S. Equal Employment Opportunity Commission and the
U.S. Department of Justice on the trial of civil rights cases and has lectured extensively
throughout the country on various civil rights and employment topics. He was an Adjunct
Professor at the Washington College of Law at American University, where he taught
Employment Discrimination law, and at the Georgetown University Law Center, where he taught
a course on Professional Responsibility.
He served on the Clinton/Gore Transition Team in 1992 and 1993. He headed the teams
reviewing the operations of the EEOC, the Office of the Assistant Attorney General for Civil
Rights, and various sections of the Civil Rights Division of the Department of Justice. He also
served as a Co-Chair of the Task Force of the D.C. Circuit on Gender, Race and Ethnic Bias and
was appointed by panels of the D.C. Circuit Court of Appeals and the U.S. District Court for the
District of Columbia.
At the request of the Ford Foundation and the American Bar Association, Mr. Sellers delivered a
series of lectures and designed and delivered a mock trial on civil rights law to Chinese judges,
lawyers and other government officials in China.
Mr. Sellers has been recognized as one of the top lawyers in Washington and as one of the top 10
plaintiffs’ employment lawyers in the country. In 2010, he was recognized as one of "The
Decade's Most Influential Lawyers" by The National Law Journal. He is a professionally-trained
mediator and has served as the President of the Washington Council of Lawyers.
Prior to joining Cohen Milstein, Mr. Sellers served as head of the Employment Discrimination
Project of the Washington Lawyers' Committee for Civil Rights and Urban Affairs for over 15
years.
Mr. Sellers received a J.D. from Case Western Reserve School of Law (1979), where he served
as Research Editor of the Case Western Reserve Law Review, and a B.A. in American History
and Literature from Brown University (1975).
Mr. Sellers is admitted to practice in the District of Columbia.
Richard A. Koffman
Richard Koffman, a Partner at the Firm, joined Cohen Milstein in 2003 and is a member of the
Antitrust practice group. He is also Chair of the Firm's Ethics Committee.
Mr. Koffman is currently serving as co-lead counsel for plaintiffs in, among other cases, In re
Urethane Antitrust Litigation (D. Kan.), in which plaintiffs allege price-fixing of chemicals used
in the manufacture of polyurethanes; In re Endosurgical Products Antitrust Litigation (C.D.
Cal.), in which plaintiffs allege that defendants unlawfully monopolized the market for medical
devices used in keyhole surgery; and Coalition for Elders’ Independence, Inc., et al. v. Biovail
Filed 01/14/11 Page 16 of 28
Corp., et al. (Cal. Super. Ct.), in which plaintiffs allege unlawful allocation of the market for
branded and generic Nifedipine, a drug used to treat hypertension. Mr. Koffman also served as
co-lead counsel for plaintiffs in In re Rubber Chemicals Antitrust Litigation (N.D. Cal.), which
settled for a total of approximately $320 million; and In re Polyester Staple Antitrust Litigation
(W.D.N.C.), which settled for a total of $46 million.
Mr. Koffman came to Cohen Milstein after four years with the Antitrust and Civil Rights
Divisions of the United States Department of Justice. In the Antitrust Division, Mr. Koffman
served as a Senior Trial Attorney with the Computers and Finance Section (now Networks and
Technology), which is responsible for antitrust enforcement and competition policy in the areas
of information technology, Internet-related businesses, financial services, and the securities
industry. In the Civil Rights Division, he served as a Senior Trial Attorney with the Housing and
Civil Enforcement Section, where he worked to enforce the Fair Housing Act, the Equal Credit
Opportunity Act, the Religious Land Use and Institutionalized Persons Act, and Title II of the
Civil Rights Act of 1964.
Prior to joining the Department of Justice, Mr. Koffman spent seven years in private practice,
first with Fine, Kaplan and Black in Philadelphia (working primarily on antitrust class actions
and other complex commercial litigation) and then with Bernabei & Katz in Washington, D.C.
(handling employment discrimination cases). While at Fine Kaplan, Mr. Koffman was actively
involved in litigating several successful antitrust class actions on behalf of plaintiffs and classes,
including In re Nasdaq Market-Makers Antitrust Litigation (S.D.N.Y.) (settled for more than $1
billion); In re Polypropylene Carpet Antitrust Litigation (N.D. Ga.); In re Commercial
Explosives Antitrust Litigation (D. Utah); and In re Drill Bits Antitrust Litigation (S.D. Tex.).
He was also co-counsel, along with John G. Roberts, Jr., who was then a Partner at Hogan &
Hartson and is now Chief Justice of the United States Supreme Court, for Respondents in First
Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995). In that case, argued by Mr. Roberts
with Mr. Koffman assisting on the briefs, Mr. Koffman’s clients won a unanimous ruling by the
United States Supreme Court.
Immediately after law school, Mr. Koffman served as a judicial clerk for Judge James B.
McMillan of the Western District of North Carolina, and for Judge Anthony J. Scirica of the
United States Court of Appeals for the Third Circuit.
Mr. Koffman is a graduate of Yale Law School (J.D., 1990), where he was a Senior Editor of the
Yale Law Journal, and Wesleyan University, from which he received a B.A., with honors, in
English
(1986).
Mr. Koffman is admitted to practice in the District of Columbia, the United States Supreme
Court, and the United States Courts of Appeals for the Eighth and Tenth Circuits.
Christine E. Webber
Christine Webber, a Partner at the Firm and a member of the Civil Rights & Employment
practice group, joined Cohen Milstein in 1997. She is the Partner in charge of the law clerk and
summer associate program.
Filed 01/14/11 Page 17 of 28
Ms. Webber represents plaintiffs in class action employment discrimination and Fair Labor
Standards Act cases. Ms. Webber's current docket includes Dukes v. Wal-Mart Stores, Inc.
(N.D. Cal.), a certified class action for over 1.6 million current and former female employees of
Wal-Mart with complaints of discrimination in pay and promotion; O’Connor v. BASF, (N.J.), a
certified class action alleging age discrimination by BASF in a series of RIF’s; and In re Tyson
Foods FLSA MDL, (M.D. Ga.), a collective action involving FLSA claims at over 40 Tyson
chicken processing plants.
She represented plaintiffs in Beck v. The Boeing Co. (W.D. Wash.), a class action alleging sex
discrimination in compensation and promotions which settled in 2004 for $72.5 million. She
was also lead counsel in Hnot v. Willis (S.D.N.Y.), representing a class of women at the vicepresident level and above whose challenge to sex discrimination in compensation resulted in a
settlement averaging $50,000 per class member in 2008. She was counsel in Trotter v. Perdue
(D. Del.), representing plaintiffs who were wrongly denied payment of overtime wages, and
obtaining a $10 million settlement.
In 2004 and 2007, Ms. Webber was named one of the Top Lawyers in Washington, D.C. by
Washingtonian Magazine and was named one of the 2007 Washington, D.C. Superlawyers in the
Civil Rights category.
Prior to joining Cohen Milstein, Ms. Webber received a Women's Law and Public Policy
fellowship and worked for four years at the Washington Lawyers' Committee for Civil Rights
and Urban Affairs in their Equal Employment Opportunity Project. She worked on a variety of
employment discrimination cases, and focused in particular on the sexual harassment class action
Neal v. Director, D.C. Department of Corrections, et al. Ms. Webber participated in the trial of
this ground-breaking sexual harassment class action in 1995. Ms. Webber also tried the race
discrimination case Cooper v. Paychex (E.D. Va.), and successfully defended the plaintiffs'
verdict before the Fourth Circuit.
Ms. Webber is a member of the National Employment Lawyers' Association (NELA) and cochair of their Class Action Committee. She is also co-chair of the Class Action Sub-committee
of the D.C. Bar Labor and Employment Law Section. She speaks regularly at CLE programs on
employment discrimination and class actions, including presentations for NELA.
She graduated from Harvard University with a B.A. in Government (magna cum laude, 1988)
and the University of Michigan Law School (J.D., magna cum laude, 1991, Order of the Coif).
Following law school, Ms. Webber clerked for the Honorable Hubert L. Will, United States
District Judge for the Northern District of Illinois.
Ms. Webber is admitted to practice in Illinois and the District of Columbia.
Victoria S. Nugent
Victoria Nugent, a Partner at the Firm, joined Cohen Milstein in 2000 and is a member of the
Consumer Protection & Unsafe Products practice group.
Filed 01/14/11 Page 18 of 28
Ms. Nugent has focused on consumer protection and public health litigation throughout her
career. Past cases include In re StarLink Product Liability Litigation, in which she represented
farmers suing Aventis Cropscience after an unapproved variety of genetically modified corn was
detected in the U.S. corn supply and drove down prices for all U.S. corn exports. More than $100
million was recovered for the class in a landmark settlement. She also represented car owners
seeking to enforce product warranties for an extended life coolant in In re General Motors DexCool Products Liability Litigation. The Dex-Cool litigation ended with a settlement under which
General Motors reimbursed its customers for repairs. Ms. Nugent has argued cases before the
high courts of Georgia, Nebraska and the District of Columbia, as well as the federal D.C.
Circuit Court of Appeals.
Ms. Nugent is currently working on cases against Sallie Mae, alleging excessive interest and late
fee charges on student loans, and Vonage, alleging deceptive business practices in advertising
and administering promotional offers.
Before joining Cohen Milstein, Ms. Nugent worked for seven years at Public Citizen, a national
consumer advocacy organization. During that time, she worked on many legislative and
regulatory campaigns addressing issues that ranged from automobile safety to international trade
policy. In 1998, Ms. Nugent received a two-year fellowship sponsored by the National
Association for Public Interest Law (NAPIL). As a NAPIL Fellow, she worked at Trial Lawyers
for Public Justice (TLPJ), where she helped develop and prosecute impact litigation in the areas
of arbitration, banking, credit and insurance.
Ms. Nugent received her undergraduate degree in History from Wesleyan University in 1991 and
graduated from Georgetown University Law Center in 1998.
Ms. Nugent is admitted to practice in the District of Columbia and Maryland.
Charles Tompkins
Charles Tomkins, a former Partner of Cohen Milstein, joined the Firm in 1999 and was a
member of the Antitrust and Civil Rights & Employment practice groups, with an emphasis on
obtaining redress on behalf of employees who have not been paid all of the wages they are owed.
While at Cohen Milstein, Mr. Tompkins represented Registered Nurses employed by hospitals in
Albany, Chicago, Detroit, Memphis, and San Antonio in lawsuits alleging that their employers
unlawfully fixed their wages in violation of federal antitrust laws. Mr. Tompkins also served as a
member of the co-lead counsel team in In Re Air Cargo Antitrust Litigation (E.D.N.Y.), a multibillion dollar antitrust action alleging that the world’s major cargo airlines colluded in setting the
amounts of various surcharges they imposed on their customers, and In Re Air Transportation
Antitrust Litigation (N.D. Cal.), a federal antitrust action challenging a conspiracy among airlines
to fix the amount of the fuel surcharge imposed on flights to and from Heathrow airport in
London. Mr. Tompkins was a member of the trial team that, following a two-week jury trial,
obtained a $56.4 million judgment on behalf of Maine wild blueberry growers who alleged their
suppliers fixed the prices of wild blueberries. Mr. Tompkins also was a member of the team that
Filed 01/14/11 Page 19 of 28
litigated the federal antitrust action Paper Systems, Inc. v. Mitsubishi Corp. et al. (E.D.Wisc.),
which settled for $20 million on the eve of trial.
In the employment field, Mr. Tompkins has represented a wide variety of employees, and twice
obtained summary judgment on behalf of nationwide classes of Auto Damage Adjusters whose
employer, GEICO, refused to pay them overtime. See Robinson-Smith v. GEICO (D.D.C.);
Lindsay v. GEICO (D.D.C.). GEICO began paying overtime shortly after the adjusters’ victory,
and the United States Department of Labor has since cited Robinson-Smith in an official opinion
letter. Mr. Tompkins also was part of the legal team that obtained a $10 million settlement on
behalf of chicken-processing workers who were not paid for the time they spent putting on and
taking off their required safety equipment, Trotter v. Perdue Farms, Inc., et al. (D. Del.). Perdue
Farms changed its practices as part of a global settlement and now pays its employees for this
time. Mr. Tompkins was also a member of the team litigating Dukes v. Wal-Mart Stores, Inc.
(N.D.Cal.), the largest certified Title VII class action in history, in which female employees of
Wal-Mart seek redress for unfair gender discrimination, and Hnot v. Willis, et al. (S.D.N.Y.), in
which a certified class of over one hundred female insurance brokerage executives allege sexual
discrimination in compensation and promotions. Mr. Tompkins also served, on a pro bono basis,
as a consultant for the Immigrant and Refugee Rights Project at the Washington Lawyers
Committee for Civil Rights And Urban Affairs, providing guidance and oversight in litigations
brought on behalf of immigrant workers subject to wage and hour violations.
Mr. Tompkins has significant appellate appearance. He second-chaired the argument of Free v.
Abbott Laboratories before the United States Supreme Court; briefed and successfully argued
Lindsay v. GEICO before the United States Court of Appeals for the District Of Columbia
Circuit; and briefed and argued Manchester v. Primerica Financial Services, et al., which was
successfully settled prior to the issuance of a decision, before the United States Court of Appeals
for the Eleventh Circuit.
Mr. Tompkins is the author of “Damages Issues in Fair Labor Standards Act Collective Action
Litigation,” and the co-author, with Michael Hausfeld and Kalpana Kotagal, of “Innovation,
Economics and the Law: The Health Care Industry’s Exposure to Antitrust Liability,” published
by the ABA Antitrust Law Section in 2007. He has been asked on several occasions to lecture on
employment law matters by both the American Bar Association and the National Employment
Law Association.
Prior to joining Cohen Milstein, Mr. Tompkins was an associate with the Washington, D.C.
office of Akin, Gump, Strauss, Hauer & Feld, L.L.P. He graduated magna cum laude from
Colgate University and received his J.D. from the University of Virginia School of Law. He is
licensed to practice in New York and the District of Columbia.
Llezlie L. Green-Coleman
Llezlie Green, a former Associate at Cohen Milstein, joined the Firm in 2004 and was a member
of the Civil Rights & Employment practice group prior to leaving the firm in 2010.
Filed 01/14/11 Page 20 of 28
Ms. Green was involved in Chase v. AIMCO, alleging that the U.S.’s largest apartment
management company violates the Fair Labor Standards Act by failing to pay its maintenance
employees for time spent responding to emergency tenant service requests; and Amos v. GEICO,
alleging GEICO discriminates against African-Americans through its use of occupation and level
of education in setting automobile insurance rates.
Ms. Green is a member of the American Bar Association, the National Employment Lawyers
Association and the Washington Council of Lawyers. She is co-chair of the ABA's Committee
on Equal Opportunity in the Legal Profession.
Before joining Cohen Milstein, Ms. Green worked for Wilmer Cutler & Pickering, where she
focused on complex litigation and securities investigations and worked on various civil rights
and international human rights pro bono projects. Ms. Green then clerked for the Honorable
Alexander Williams, Jr. on the United States District Court for the District of Maryland.
Ms. Green graduated from Dartmouth College with a B.A. in Government (cum laude, 1997) and
Columbia Law School (J.D., 2002), where she was a Harlan Fiske Stone Scholar. At Columbia,
Ms. Green was active in the Black Law Students Association, participated in the Human Rights
Clinic, and served as an Articles Editor for the Columbia Human Rights Law Review. She
authored a Note, Gender Hate Propaganda and Sexual Violence in the Rwandan Genocide: An
Argument for Intersectionality in International Law, 33 Colum. Hum. Rts. L. Rev. 733 (2002).
While in law school, Ms. Green interned at the Center for Constitutional Rights and the NAACP
Legal Defense and Educational Fund.
Ms. Green is admitted to practice in New York and the District of Columbia.
Suzette M. Malveaux
Suzette Malveaux, a former Associate at Cohen Milstein, joined the firm in 1998 and was a
member of the firm’s civil rights and employment discrimination practice group and consumer
products group for 8 years.
Prior to joining Cohen Milstein, Ms. Malveaux worked as a staff attorney at the Washington
Lawyers’ Committee for Civil Rights and Urban Affairs. At the Lawyers’ Committee, Ms.
Malveaux litigated a variety of cases in the areas of fair housing, fair lending and public
accommodations. Ms. Malveaux represented plaintiffs in such class actions as Pugh et al. v. Avis
Rent-a-Car and Stackhaus et al. v. NationsBank. Ms. Malveaux also clerked for the Honorable
Robert L. Carter, United States District Court (S.D.N.Y.).
Ms. Malveaux graduated from Harvard University (A.B. magna cum laude 1988) and New York
University School of Law (J.D. 1994) as a Root-Tilden-Snow Scholar. While at NYU, Ms.
Malveaux served as an Editor on the Law Review and was awarded the Judge Rose L. Herbert
Rubin Law Review Prize for her writing in international, commercial and public law. She also
received the Vanderbilt Medal and fellowships from the Center for International Studies and the
American Association of University Women.
Filed 01/14/11 Page 21 of 28
Ms. Malveaux is a member of the bars of Maryland, the District of Columbia, the United States
Court of Appeals for the Third Circuit and the United States Supreme Court. She is also a
member of the National Bar Association and the National Employment Lawyers Association.
Peter Romer-Friedman
Peter Romer-Friedman joined Cohen Milstein in 2009 as an Associate and is a member of the
Civil Rights and Employment Practice Group.
Prior to joining the firm, Mr. Romer-Friedman served as labor counsel for the U.S. Senate
Committee on Health, Education, Labor and Pensions and its Chairman, Senator Edward M.
Kennedy. Mr. Romer-Friedman assisted Chairman Kennedy and other Senators in drafting
legislation, speeches, and regulatory comments, and holding hearings on a range of labor,
employment, and civil rights issues.
Prior to his work in the Senate, Mr. Romer-Friedman served as a law clerk to the Honorable
Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit in Los Angeles.
Mr. Romer-Friedman graduated from the University of Michigan at Ann Arbor with a B.A. in
Honors Economics and Social Science (cum laude and Phi Beta Kappa, 2001) and Columbia
Law School (J.D., 2006), where he was a James Kent Scholar and a Harlan Fiske Stone Scholar.
While at Columbia, Mr. Romer-Friedman served as managing editor of the Columbia Journal of
Law & Social Problems, authored a Note, Eliot Spitzer Meets Mother Jones: How State
Attorneys General Can Enforce State Wage and Hour Laws, 39 Colum. J.L. & Soc. Probs. 495
(2006), and was as an extern to the Honorable Shira Scheindlin, U.S. District Court for the
Southern District of New York. In addition, he was the recipient of the Emil Schlesinger Labor
Prize and the ABA-BNA Award for Excellence in the Study of Labor and Employment Law.
While at Michigan, he received the national Harry S. Truman Scholarship for Public Service and
co-founded the Worker Rights Consortium, a non-profit organization that monitors labor rights
in apparel factories worldwide.
Prior to law school, Mr. Romer-Friedman was a Legislative Representative for the United
Steelworkers of America, and worked for several other labor organizations, including the AFLCIO, UNITE!, and SEIU.
Mr. Romer-Friedman is admitted to practice in New York and the District of Columbia.
Abby Shafroth
Abby Shafroth joined Cohen Milstein as an Associate in 2010 and is a member of the Civil
Rights & Employment practice group.
Prior to joining the firm, Ms. Shafroth was a fellow and associate counsel for the Lawyers'
Committee for Civil Rights Under Law in the Fair Housing and Employment Discrimination
Projects, where she litigated complex civil rights cases challenging exclusionary zoning and
Filed 01/14/11 Page 22 of 28
employment discrimination. She also served as a law clerk for the Honorable Richard A. Paez of
the United States Court of Appeals for the Ninth Circuit.
Ms. Shafroth graduated from Harvard College with an A.B. in Psychology (cum laude, 2004)
and Harvard Law School (cum laude, 2008). During law school, Ms. Shafroth served as Articles
Editor for the Harvard Law Review and as Editor for the Civil Rights - Civil Liberties Law
Review. She also assisted in the employment civil rights group at the WilmerHale Legal
Services Center and worked with Ghana Legal Services in studying local health care delivery in
rural Ghana. In addition, Ms. Shafroth spent summers working with the Lawyers' Committee for
Civil Rights Under Law, Covington & Burling, and the Civil Rights Bureau of the New York
State Office of the Attorney General.
Ms. Shafroth is admitted to the New York State Bar and she is practicing under the supervision
of Joseph M. Sellers, a member of the D.C. Bar.
Daniel Tenny
Daniel Tenny, a former Associate at Cohen Milstein, joined the Firm in September 2007 and was
a member of the Civil Rights & Employment practice group prior to leaving the firm in 2009.
Mr. Tenny was involved in Keepseagle v. Johanns, in which Native American farmers and
ranchers allege discrimination in the United States Department of Agriculture’s provision of
agricultural loans, and Amos v. GEICO, in which African-American consumers allege that
GEICO discriminates against them by considering level of education and occupation when it sets
automobile insurance rates.
Prior to joining the Firm, Mr. Tenny served as a law clerk for the Honorable David H. Souter of
the Supreme Court of the United States. Before his clerkship with Justice Souter, he was a law
clerk for the Honorable David S. Tatel of the United States Court of Appeals for the District of
Columbia Circuit.
Mr. Tenny graduated from Harvard University (A.B. in Mathematics, cum laude, 1999) and the
University of Michigan Law School (J.D., summa cum laude, 2005). While at Michigan, he
served as Executive Note Editor of the Michigan Law Review and published his own Note,
There Is Always a Need: The “Necessity Doctrine” and Class Certification Against Government
Agencies, 103 Mich. L. Rev. 1018 (2005). Mr. Tenny spent his summers during law school in
the Housing Unit at South Brooklyn Legal Services and in the Office of General Counsel at the
Equal Employment Opportunity Commission.
Mr. Tenny is admitted to practice in New York and the District of Columbia.
Filed 01/14/11 Page 23 of 28
EXHIBIT B
Filed 01/14/11 Page 24 of 28
Lodestar Summary: The chart below identifies Cohen Milstein Sellers & Toll attorneys,
paralegals, and law clerks who recorded more than 10 hours of time to Keepseagle v. Vilsack, the
hours they expended, their current hourly billing rate, and their total fees through November 30,
2010. For those no longer employed by Cohen Milstein, the chart reflects billing rates during
their final year of employment by the firm.
Employee Name
Title
Hourly Rate
Steven Toll
Partner
$785.00
114.25
$89,686.25
Joseph Sellers
Partner
$715.00
3,996.94
$2,857,812.10
Richard Koffman
Partner
$615.00
63.00
$38,745.00
Christine Webber
Partner
$590.00
1,555.35
$917,656.50
Victoria Nugent
Partner
$530.00
315.75
$167,347.50
Charles Tompkins
Partner
$440.00
523.00
$230,120.00
Llezlie Green-Coleman
Associate
$440.00
3,023.70
$1,330,428.00
Peter Romer-Friedman
Associate
$350.00
925.61
$323,963.50
Anurag Varma
Associate
$345.00
2,158.16
$744,565.20
Daniel Tenny
Associate
$315.00
1,980.00
$623,700.00
Suzette Malveaux
Associate
$310.00
562.25
$174,297.50
Abby Shafroth
Associate
$295.00
53.50
$15,782.50
Carina Ndiaye
Staff Attorney
$240.00
876.55
$210,372.00
Abigail Fu
Paralegal
$220.00
27.00
$5,940.00
Amber Bullard
Paralegal
$220.00
13.50
$2,970.00
Ariel Wentworth
Paralegal
$220.00
13.50
$2,970.00
Chynna Wendell
Paralegal
$220.00
2,193.50
$482,570.00
David Greenberg
Paralegal
$220.00
301.50
$66,330.00
Kari Fiore
Paralegal
$220.00
11.75
$2,585.00
Tyler Gaffney
Paralegal
$220.00
25.25
$5,555.00
Valerie Esch
Paralegal
$220.00
41.00
$9,020.00
Dana Frusco
Paralegal
$200.00
47.50
$9,500.00
Tracy Phillips
Paralegal
$200.00
77.25
$15,450.00
Hours
Lodestar Fees
Filed 01/14/11 Page 25 of 28
Zerai Araya
Paralegal
$200.00
11.25
$2,250.00
Jessica Lyn
Associate
$195.00
136.50
$26,617.50
Besret Gebrewold
Law Clerk
$190.00
22.50
$4,275.00
Adrian Esguerra
Law Clerk
$185.00
39.50
$7,307.50
Daniel Taylor
Law Clerk
$185.00
24.00
$4,440.00
Harini Raghupathi
Law Clerk
$185.00
61.50
$11,377.50
Joseph Rocco
Paralegal
$180.00
73.75
$13,275.00
Oliver Abbott
Paralegal
$180.00
48.50
$8,730.00
Usha Neelakantan
Paralegal
$180.00
1,129.50
$203,310.00
Karen Schmidt
Paralegal
$175.00
113.50
$19,862.50
Katherine Kimple
Law Clerk
$175.00
83.75
$14,656.25
Maria Antos-Fallon
Paralegal
$175.00
330.00
$57,750.00
Sarah Ghani
Law Clerk
$175.00
17.00
$2,975.00
Christopher Scherman
Paralegal
$170.00
59.25
$10,072.50
Thomas Carr
Paralegal
$170.00
64.75
$11,007.50
Toni Kirby
Paralegal
$170.00
247.00
$41,990.00
Maria Liu
Paralegal
$165.00
532.25
$87,821.25
Adam Nyham
Law Clerk
$160.00
14.75
$2,360.00
Adrienne Rosen
Law Clerk
$160.00
25.00
$4,000.00
Kimberly Brenner
Paralegal
$155.00
14.00
$2,170.00
Ashley Kushner
Law Clerk
$145.00
22.50
$3,262.50
Jante Santos
Law Clerk
$145.00
32.50
$4,712.50
Adler Bernard
Law Clerk
$135.00
31.00
$4,185.00
Edye Olalia
Law Clerk
$135.00
16.00
$2,160.00
Joel Najar
Law Clerk
$135.00
56.25
$7,593.75
Louis Smith
Law Clerk
$135.00
24.50
$3,307.50
Robyn Rimmer
Law Clerk
$135.00
14.00
$1,890.00
Victor Montas
Paralegal
$135.00
154.75
$20,891.25
Filed 01/14/11 Page 26 of 28
Yaser Al-Keliddar
Paralegal
$135.00
16.25
$2,193.75
Janee Davis
Paralegal
$125.00
10.75
$1,343.75
Karie Annaccone
Paralegal
$100.00
32.75
$3,275.00
22,359.31
$8,918,428.55
Total
Filed 01/14/11 Page 27 of 28
EXHIBIT C
Filed 01/14/11 Page 28 of 28
The following chart provides a summary of expenses incurred by Cohen Milstein through
November 30, 2010, in furtherance of Plaintiffs’ claims in Keepseagle v. Vilsack, Civil Action
No. 1:99CV03119:
Expense Type
In-house Duplicating
Outside Duplicating
Duplication Audio/Video Tape
Long Distance Tele. (Internal)
Long Distance (Third Party)
Postage
Local Courier
Air Courier
Process Server Fee
Other Court Fees
Court Reporter Fees
Transcripts
Lexis
Other Computer Services
Travel - Transportation
Travel - Hotel
Travel - Taxis, Tips
Travel - Meals
Travel - Long Dist. Phone
Travel - Miscellaneous
Travel - Parking Charges
Local Transportation
Expert Witness/Consultant
Trial Testimony Expense
Professional Services
Media Services
Witness Transportation
Witness Hotel
Witness Meals
Books/Magazines
Government Reports
Other Publications
Conferences/Seminars
Secretarial Overtime
Overtime Transportation
Overtime Meals
Supplies
Business Meals
Total
Expense Amount
$29,272.80
$62,480.20
$6,979.11
$10,222.73
$3,005.28
$3,604.25
$2,786.13
$5,765.40
$380.85
$175.00
$33,007.54
$23,301.09
$24,396.35
$33,041.95
$52,766.72
$15,652.95
$2,588.70
$5,385.55
$191.54
$123.31
$611.00
$2,689.31
$584,307.23
$36,018.75
$147,204.58
$747.35
$23,954.37
$4,973.49
$386.58
$122.62
$675.50
$301.34
$3,130.41
$976.80
$1,597.14
$1,454.81
$823.17
$6,716.18
$1,131,818.08
EXHIBIT 2
IN THE UNITEDSTATESDISTItICl' COURT
FOR THE DISTRICTOF COLUMBIA
MARILYNKEEPSEAGLFI.
ct al..
PlairltiIIi.
Civil ActionNo. l:99CV03119
(T]GS)
'lOM
VILSACK.Secretary.
LlnitedSrares
Depaflmentof ngriculture.
Defendaut.
)
)
)
Judger
EnmetC. Sullivan
Magistratc
AlanKay
.ludgc:
)
)
)
DECLARATION OF PATRICK M. O'BRIEN
I. PatrickM. O Brien.hcrcbydcclarcthe lirllowing:
L
l wasrctainedby CohcnNy'ilstcin
Scllcrs& loll I,LLC in coniunctidrwith thc
cascol .(??,irr?4glc
r,. I J/.r,,(t to provide expen an{lysis ofthe cxtcnt to which Nati!c
Anle cansweretrcatcddill'crcntl_v
tlun ron-NativcAntcricansin LJSI)A'sdeliveryol lirrm
loanprogranbenelitsandthc cxtcnt1()whichuny dill'e|cnce
in trcatntcnt
ofNativc
Amcricansrcsultedil econonliclosscs.I subniltecimultiplereportsin conncction
widt tltese
analyses.
and I obtaincdaccess
1()[JSDA'sPLAS dahbaseftrr theperiodI98l-2006.
l.
I haveworkedin thc agiculturaleconontics
lield lor ovcr 30 ycarsafter
complelingnry nrastcr's
degr€cctJohnsHopkitlsLlniversity
andwhile continuingnry
education
at otherinslilutions.I workcdat_llSDA'sEconomicIlcscarchScrvice(11RS)
tbr
27 ycars.with assignrncnts
to two PresidentialCommissionsand sevemlinlergovenrnrental
and departmentaltask lbrcesover my tctlurethere. At ERS. I ultimately scrvcdas deputy
adninislrabr and directol of .l ofthe agencys 5 divisions. l\4y wolk responsibilitiesat ERS
includedparticipatingin and directingthe surveyactivitiesunderpinningIISDA's farm
incomeand commercialagricLrllureprograms. I also pafticipatcdin and directedresearch
doneusing the USDA lbnn accountsto analyzelirrm businessperfbrmanceanclsupport
opcrationofLlSl)A's conlmodityplogranlsand rural and l'arnrlenldingplograns.
i.
Baseduponthe P[,ASdatamadcavailablcto n]c througbtbis litigation.I
calculatcdthat. fbr borrowerswho first oblaineda loan l'r'onrTJSDAprior to 2000.that there
was $81 rrillion in outstaDding
debt.includingintcrcst.asofthc cnd of2006 (thc latcstdata
madeavailable).Sincedebteligiblcfbl tblgivcncssincludesaddeddebt.interest.
l'eesand
olher arreorages
accumulatcdtiorrr 2006 lbrwurd. the debt eligible lor ti)rgivenessfbr this
first groupofclairrantsis quiteljkely largorthanXili1 nrillion. ln addition.LISDA'suseol'
delerralsto postponc|csolutioD
ol'Native,^nleficanproblcntloansincrcased
aflcr the filing
ol thc Kccpscaglc
Case.Hencc.thc dcbtdue l'ro|ntheseclaintants
increascd
fastcrthanin
the 1980's.lc)90's.andcdrll-2000'sas ncvr'dcbtand drrcirages\r-ereaddedt()the lotillwhilc
llw NativcAnlcricansrcceivedthe prohlcmloanscrvicingth t wouldnormallywork ovcr
tirre lo olllet at lcastpa ol'therornliLlincrcascin dcbt.
:1.
Bascdupon the samedata.Icalculaled that. ibr borrowerswho first obtaincdn
loant'ronlIJSDA in 1000'2006.thattherewasa totalof $ll2 rrillion in outstandirgdebl.
inclLldingintereslarrearagc.
5.
Bascduponpuhliclyrcported
intbrmation
regalding
tlrcdollafvalueofdirect
loansnade by FS,{ in 2007-2010.
andtheaveragcpercentage
ol'loandollarsthatwcntto
NativcAmericarls
in prior vcars.assetforthin my cxpertrcpofts.I estinatethatan
additional
$30millionin loandcbtwastakenon by NativcArne-ricans
in 2007-2010.
6.
Thesecalculations
andestimates
thata totalofat least$193million in
suggest
FSA loandebtandassociated
l'eesandarrearages
is owedby NativeAmericans.
7.
I understand
thatsuccessful
claimantsinKeepseagle
arc entitledto haveall of
theiroutstanding
debteliminated,
from
up to a capof$80 million. While I cannotdetermine,
thedataavailablcto me,who will be foundto havemetall therequirements
for class
membership,
andthussucceed
on theirclaim.thosepersonswho USDA recorded
were
NativeAnericanandwho obtaincdFSAloanspriorto 2000clearlymeettherequirements
for beingNativeAmerican,andengaged
in farmingor ranchingduringthe relevantperiod.
andhavingsoughtassistance
from USDA duringtherelevaDt
period.Takingthatgroup,
whichhasapproximately
debt,andassuming
theyareas
$81million in outstanding
successful
in pursuingclaimsin Kcepseaglc
asplaintil'1!werewho pursuedsimilarclaimsin
Pig/b&/.I wouldassume
that6970'ofthe prc-2000debtwouldbe foundeligiblelbr
elimination,a totalof$55,89million. I haveno way to estimatewhatpercentage
ofposr2000debtis owedby classmcmbcrswho will be successful
on thcir claims,Ilowever,ifthe
estimateaboveconcerning
pre-2000debtis conect,thenif29% or moreofthe post-2000
debt-owers
aresuccessful
with theirclaims,successful
claimswouldbe largeenoughto morc
thanexhaustthe$80millioncap.
8.
Thus.it appearsreasonably
likely thata sul'ficientnumberofclaimswill be
successful
to completelyexhaust quitelikely exceed--the
$80million availablefor debt
relief.
' SeeTable3 of http://pieford
910194
l r
onitor.ors/reports/Rpt201006
|7 2009.pd1
I declareunderpenalt\oflcrjur\'lhat thc tbrcgoingis tluc andcorrect.
.=#
J a n u a n1 3 . 2 0 l l
\/,-r--afuru.
P L r t r i eNl l . 0 B r i e n
EXHIBIT 3
EXHIBIT A
Provided below are brief biographies of Conlon, Frantz and Phelan, LLP attorneys who
performed over 10 hours of legal services in Keepseagle v. Vilsack, C.A. No. 1:99-cv-03119:
Alexander J. Pires
Alexander J. Pires, Jr., is a former partner in Conlon, Frantz, Phelan & Pires, LLP.
Following law school, he was selected for the U S Department of Justice Honors Program, and
worked at both the Land and Natural Resources and Anti-Trust Divisions from 1973 to 1980.
During that time Mr. Pires litigated over a dozen complex cases, and served as second chair on
the AT&T antitrust case.
From 1981 until 2006, Mr. Pires was in full time private practice, with a focus on
complex litigation in the field of agricultural law. During this time he filed approximately three
dozen lawsuits in federal district courts on behalf of individuals, groups, and/or classes of
farmers. He also handled agricultural cases before federal agencies, state agencies throughout the
country, and the United States Court of Claims, and wrote various law review articles about
his experiences and the successes/failures of the various legal forums.
Among the major cases filed by Mr. Pires were: 1) Pigford v. Glickman (the "Black
farmers' case against USDA"), which resulted in a recovery to the class of over one billion
dollars; 2) DeLoach v. Philip Morris (the "tobacco farmers' case"), with a recovery valued at
over $1 billion; 3) Keepseagle v. Glickman (Native-American farmers and ranchers’ case against
USDA); 4) Love v. Glickman (women farmers’ case against USDA) and 5) Garcia v. Glickman
(Hispanic farmers’ against USDA). Since 2006 Mr. Pires has limited his practice to a select
group of litigation cases involving non-profits or the disadvantaged, and serves on the boards of
directors of a community hospital and a community bank.
Mr. Pires has taught Civil Discovery as an adjunct professor of law at the Georgetown
University Law Center and was active in various committees and sections of the D.C. and
national bars.
Mr. Pires is a graduate of Boston University (B.S.B.A. 1969) and George Washington
University School of Law (J.D. with honors 1973; L.L.M. 1978) and is a member of the District
of Columbia Bar.
David J. Frantz
David Frantz is one of the founding partners of Conlon, Frantz and Phelan, LLP which
originated with a predecessor firm in1985. His practice focuses on complex civil litigation and
representation of farmers and ranchers. He is class counsel in Pigford v. Vilsack, C.A. No. 971978 PLF (D.D.C), the Black Farmers’ class action discrimination case against USDA. The case
has resulted in payment of compensation and debt relief of over $1 billion to African American
farmer claimants. He is also co-counsel for the plaintiffs in In re Black Farmers Discrimination
Litigation, C.A. No. 1:08-mc-0511-PLF (D.D.C), known as “Pigford II”, and Keepseagle v.
Vilsack, C.A. No. 1:00-cv-03119-EGS (D.D.C), a class action case brought on behalf of Native
American farmers and ranchers for discrimination by USDA in the administration of farm loan
programs. Mr. Frantz has an active administrative law practice before USDA, representing
farmers and ranchers in their disputes with the Department involving farm loan programs and
non-credit benefit programs. He is a frequent speaker and panelist in programs sponsored by
non-profit organizations that provide assistance to socially disadvantaged farmers and ranchers
throughout the rural South.
Mr. Frantz is a graduate of Georgetown University (B.S.B.A. 1970) and Georgetown
University Law Center (J.D. 1974). He is admitted to practice in Virginia and the District of
Columbia.
Anurag Varma
Anurag Varma joined Patton Boggs LLP as Of Counsel in September 2007 and serves in
the firm's civil litigation and international public policy practices. Prior to joining Patton Boggs,
from 1997 to 2007, Varma was a partner at Conlon, Frantz, Phelan & Varma, LLP and an
Associate at its predecessor firm, Conlon, Frantz, Phelan and Pires, LLP.
Mr. Varma has served as counsel in Keepseagle v. Vilsack, the Native American farmers
and ranchers’ lawsuit against the U.S. Department of Agriculture (USDA), from the inception of
the case to the present. During this time, Mr. Varma has served on the litigation strategy team,
drafted Court filings, taken depositions, prepared and responded to document discovery,
and maintained contact with class representatives and other class members, tribal governments
and other tribal agricultural leaders, Native American and agricultural media, and interested
Members of Congress.
From 1997-2007, Mr. Varma also worked with lead plaintiffs' counsel in Pigford v.
Vilsack, the African-American farmers' class action discrimination case against the USDA,
which was settled by the parties in January 1999. Mr. Varma's activities in Pigford were akin to
the role he played in Keepseagle. In addition, in Pigford, Mr. Varma led Class Counsel's
successful efforts in assisting over 20,000 class members, across 29 states, in completing the
forms necessary to participate in the settlement.
Mr. Varma presently also serves as plaintiffs' counsel in In Re Black Farmers
Discrimination Litigation (also known as "Pigford II").
On December 14, 2010, Mr. Varma testified before the United Nations Forum on
Minority Issues, hosted by the UN High Commission on Human Rights, on the topic of
"Achieving Justice for Minority Farmers through Litigation."
Outside of civil litigation, Mr. Varma co-chairs Patton Boggs' India Practice. This work
involves representing U.S. interests in connection with market entry and other public
policy concerns in India as well as Indian companies and the Government of India in resolving
issues related to U.S. Congressional and regulatory activities. In that capacity, among other
things, Mr. Varma served as lead public policy counsel for U.S. industry in the successful
Congressional approval of the historic U.S.-India Civil Nuclear Agreement.
Mr. Varma received a J.D. from the University of Denver College of Law (1997), where
he served as Articles Editor for the Denver Journal of International Law and Policy, and an
L.L.M. (International) from the Georgetown University Law Center (1999). Mr. Varma also
received a Bachelor of Commerce (B.Comm.) degree from the University of Alberta, Canada
(1994).
Ingrid Palmquist
Ingrid Palmquist has represented farmers in class action discrimination cases against the
United States Department of Agriculture since 1999, when she joined the law firm of Conlon,
Frantz, Phelan & Pires, LLP.
Ms. Palmquist is co-counsel for plaintiffs in Pigford v. Vilsack (D.D.C.), one of the
largest civil rights class action settlements in U.S. history, in which a class of over 22,000
African American farmers are participating under a Consent Decree. She has provided legal
representation for thousands of farmers in the settlement, conducting personal interviews,
research and analysis for individual claimants. Relief for the class has exceeded $1 billion.
She has also represented farmers in Keepseagle v. Vilsack (D.D.C), Garcia v. Vilsack
(D.D.C.), and Love v. Vilsack (D.D.C.), (class action discrimination cases on behalf of Native
American, Hispanic, and women farmers, respectively, against the USDA).
Ms. Palmquist served as counsel for plaintiffs in DeLoach v. Philip Morris, et. al.
(M.D.N.C.), where a class of 170,000 tobacco growers sued Philip Morris and other cigarette
companies alleging violations of the antitrust laws in rigging auctions at which tobacco is sold.
Defendants paid over $350 million in cash, entered into a 10-year leaf purchase commitment, the
total value of the settlement exceeding $1 billion. This was one of the most successful
settlements in antitrust history.
She represented plaintiffs in Three Affiliated Tribes v. Salazar (D.D.C.), a settlement
where plaintiffs alleged breaches of trust by the United States with respect to the
mismanagement of the money and assets held in trust by the U.S. for a Native American tribe.
Ms. Palmquist was recognized as one of the top civil rights lawyers in the District of
Columbia by Washingtonian magazine in 2004.
Ms. Palmquist received a J.D. from Georgetown University Law Center (1999). She
attended the Academy on Human Rights and Humanitarian Law at American University,
Washington College of Law (2003). She received a B.A. in Government and Spanish from
Wofford College (1990), where honors included Summa Cum Laude, Phi Beta Kappa, and first
female recipient of the Presidential Scholarship (nine months of solo travel through fifteen
countries in Latin America, Africa, Asia and the South Pacific, after which she published No
Wrong Mountain, a journal account of the trip).
Filed 01/14/11 Page 10 of 19
Michelle Pilgrim
Michelle Pilgrim, a former associate with Conlon, Frantz, Phelan & Pires, LLP, was
counsel in the Pigford v. Glickman and Keepseagle v. Glickman farmers and ranchers’ class
action lawsuits against the United States Department of Agriculture. Ms. Pilgrim is a graduate of
the University of Maryland (B.A. 1991; J.D. 1996) and is a member of the bar of Maryland.
James E. Fisher, II
James Fisher, a former associate with Conlon, Frantz, Phelan & Pires, LLP, was counsel
in the Pigford v. Glickman and Keepseagle v. Glickman farmers and ranchers’ class action
lawsuits against the United States Department of Agriculture. Mr. Fisher is a graduate of Howard
University (B.B.A. 1992) and the University of Maryland (J.D. 1997) and is a member of the bar
of Maryland.
Leandra Ollie
Leandra Ollie, a former associate with Conlon, Frantz, Phelan & Pires, LLP, was counsel
in the Pigford v. Glickman and Keepseagle v. Glickman farmers and ranchers’ class action
lawsuits against the United States Department of Agriculture. Ms. Ollie is a graduate of Morgan
State University (B.A. 1994) and the University of Baltimore (J.D. 1997) and is a member of the
bar of Maryland.
Malcolm Grace
Malcolm Grace, a former associate with Conlon, Frantz, Phelan & Pires, LLP, was
action lawsuits against the United States Department of Agriculture. Mr. Grace is a graduate of
Syracuse University (B.A. 1994; J.D. 1997) and is a member of the bar of the District of
Columbia.
Greg J. Kirschner
Greg Kirschner, a former associate with Conlon, Frantz, Phelan & Pires, LLP, was
action lawsuits against the United States Department of Agriculture. Ms. Ollie is a graduate of
George Washington University (B.A. cum laude 1995) and Georgetown University Law Center
(J.D. 1999) and is a member of the bar of the Commonwealth of Virginia.
Shanthi Jebatheeswaran
Shanthi Jebatheeswaran, a former associate with Conlon, Frantz, Phelan & Pires, LLP,
was counsel in the Pigford v. Glickman and Keepseagle v. Glickman farmers and ranchers’ class
action lawsuits against the United States Department of Agriculture. Ms. Jebatheeswaran is a
graduate of York University (B.A. with honors 1995) and Florida State University (J.D. 1999)
and is a member of the bar of the State of Florida.
Filed 01/14/11 Page 11 of 19
Cassandra D. Mason
Cassandra Mason, a former associate with Conlon, Frantz, Phelan & Pires, LLP, was
action lawsuits against the United States Department of Agriculture. Ms. Mason is a graduate of
Towson State University (B.S. 1992) and the University of Southern California (J.D. 1998) and
is a member of the bar of the State of California
Filed 01/14/11 Page 12 of 19
EXHIBIT B
Filed 01/14/11 Page 13 of 19
Lodestar Summary: The chart below identifies Conlon Frantz attorneys and law clerks who recorded
time to Keepseagle v. Vilsack, the hours they expended, their current hourly billing rate, and their total
fees through November 30, 2010. For those no longer employed by Conlon Frantz, the chart reflects
billing rates during their final year of employment by the firm.
Name
Title
Total
Hours
Total
Lodestar
Alexander Pires
Former Partner
$500
549.70
$274,850.00
David Frantz
Partner
$475
1,254
$595,650.00
Anurag Varma
Former Partner;
$550
Counsel at Patton Boggs
882.25
$485,292.50
Ingrid Palmquist
Associate
$420
332.25
$139,545.00
Michelle Pilgrim
Associate
$210
44.35
$ 9,313.50
James Fisher
Associate
$210
473.35
$ 99,403.50
Leandra Ollie
Associate
$210
560.6
$117,726.00
Shanti Jegatheeswaran
Associate
$210
269.15
$ 56,521.50
Malcolm Grace
Associate
$210
409
$ 85,890.00
Greg Kirschner
Associate
$170
1,007.7
$171,309.00
Cassandra Mason
Associate
$170
17.5
$
2,975.00
Stephanie Rosenthal
Law Clerk
$90
103.5
$
9,315.00
Raj Parekh
Law Clerk
$90
19.75
$
1,777.50
Kimberly Chase
Law Clerk
$90
36.85
$ 3,316.50
Nicholas Rathod
Law Clerk
$90
29.25
$
Katrina LeVert
Law Clerk
$90
934
$ 82,593.00
Jenny Celestin
Law Clerk
$90
190
$ 17,100.00
Julie Hackett
Law Clerk
$90
43.75
$
Total
Current or Last
Hourly Rate
7,156.95
2,632.50
3,937.50
$2,159,148.00
Filed 01/14/11 Page 14 of 19
Filed 01/14/11 Page 15 of 19
Filed 01/14/11 Page 16 of 19
Filed 01/14/11 Page 17 of 19
Filed 01/14/11 Page 18 of 19
Filed 01/14/11 Page 19 of 19
EXHIBIT 4
Filed 01/14/11 Page 10 of 15
Filed 01/14/11 Page 11 of 15
Filed 01/14/11 Page 12 of 15
EXHIBIT B
931045.1 1 Case 1:99-cv-03119-EGS Document 581-5
Filed 01/14/11 Page 13 of 15
Lodestar summary: The chart below identifies Stinson Morrison Hecker attorneys and the
paralegal who recorded time in Keepseagle v. Vilsack, Civil Action No. 1:99CV03119,
the hours they expended, their current hourly billing rate, and their total fees through
November 30, 2010.
Name
Title
Current
hourly rate
Total
hours
Total
lodestar
Phillip Fraas
Partner
$535
617.3
$330,255.50
Michael Tucci`
Partner
$470
4.8
$2,332.00
Tracy Wetteroff
Paralegal
$155
1.0
$155.00
623.1
$332,742.50
TOTAL
931045.1 1 Case 1:99-cv-03119-EGS Document 581-5
Filed 01/14/11 Page 14 of 15
EXHIBIT C
Filed 01/14/11 Page 15 of 15
The following chart provides a summary of expenses incurred by Phillip Fraas and
Stinson Morrison Hecker through November 30, 2010, in furtherance of Plaintiffs’ claims
in Keepseagle v. Vilsack, Civil Action No. 1:99CV03119:
Type of expense
Total expended
In-house duplicating
$229.21
Long-distance (third party) and
Long-distance outgoing faxes
$107.59
Postage
Couriers
Transcripts
PACER
Other computer services
Travel—transportation
$7.29
$144.25
$51.46
$6.32
$60.45
$1.764.50
Travel—hotel
$186.15
Travel—meals
$47.08
Travel—parking charges
$28.00
Local transportation
Printing
COMBINED TOTAL
$240.65
$9.73
$2,892.68
EXHIBIT 5
)
)
)
EAGLE, et aI.,
MARILYN KEEPS
Plaintiffs,
)
) Civil Action NO.1 :99CV03119
v.
) (EGS)
)
)
) Judge: Emmet G. Sullivan
) Magistrate Judge: Alan Kay
)
)
)
Defendant.
DECLARATION OF PAUL M. SMITH IN SUPPORT OF PLAINTIFFS'
MOTION FOR AN A WARD OF ATTORNEYS' FEES AND EXPENSES
I, Paul M. Smith, hereby declare as follows:
1. I am a partner at Jenner & Block LLP ("Jenner"), and class counsel in the
above-captioned case. The testimony set forth in this Declaration is based on first-hand
knowledge, about which I could and would testify competently in open Court if called
upon to do so, and on records contemporaneously generated and kept by my Firm in the
ordinary course of its law practice. This Declaration is submitted in support of Plaintiffs'
Motion for an Award of Attorneys' Fees and Expenses.
2. Jenner became involved in this litigation in the Fall of2007 to provide
litigation and class action litigation.
Jenner's unique expertise in complex federal
3. I chair Jenner's Appellate and Supreme Court practice, and serve as co-
chair of Jenner's Media and First Amendment and Election Law and Redistricting
practices. I have argued fourteen cases before the United States Supreme Court,
beginning with Celotex Corp. v. Cattrett, 477 U.S. 317 (1986). I also have extensive
1
experience in litigating complex cases in federal and state courts across the country,
including major class action and civil rights cases. My experience with civil rights
litigation includes: (1) multiple cases in the 1980s involving the rights of residents of
state mental health facilities; (2) a large gender bias case brought against Nassau County,
NY in the 1990s; (3) numerous lawsuits seeking to enforce the rights of voters under the
U. S. Constitution and the Voting Rights Act; (4) constitutional challenges to state and
federal
and federal
laws that restrict freedom of expression; and (5) constitutional challenges to state
laws that discriminate on the basis of sexual orientation. In 2010, I was
awarded the Thurgood Marshall Award from the American Bar Association Section of
the "Decade's Most
Individual Rights and Responsibilities, and was named one of
the
Influential Lawyers" by The National Law Journal. In addition, I am Co-Chair of
Board of Directors of Lambda Legal and a member of the Board of Directors of the
Washington Lawyers Committee for Civil Rights and Urban Affairs.
4. The other Jenner attorneys who were principally involved in this litigation
litigation and class action
likewise have substantial experience in complex federal
litigation. For example, Michael Brody, Co-Chair of Jenner's Class Action practice, has
extensive class action experience in the areas of securities fraud, consumer and contract
claims, fiduciary duties, and banking rules and regulations. Mr. Brody is a lecturer in law
at the University of Chicago Law School, where he has taught a seminar course on class
action practice, and is the editor of Jenner & Block's Class Action Litgation Update.
This kind of experience allowed Jenner attorneys to litigate this case efficiently and
effectively. The background, relevant qualification and experience of other attorneys
2
from my firm who were principally involved in this litigation are provided in the brief
biographies attached hereto as Exhibit A.
5. Class counsel allocated litigation responsibility in this case among
different attorneys and firms according to their experience, expertise, and availability.
Attorneys from Jenner participated extensively in merits discovery, including taking and
defending dozens of depositions, interviewing potential class members, reviewing tens of
thousands of documents, working with experts and participating in expert discovery, and
litigating discovery issues. Jenner attorneys led the extensive discovery related to the
USDA's civil-rights complaint process, as well as the USDA's failure to implement a
litigation hold in this case. In addition, Jenner attorneys took the lead in drafting several
critical motions, including the motion to govern the means by which Plaintiffs could
establish class membership (Docket Nos. 528-29, 547), the motion to certify a damages
class under Rule 23(b )(3) (Docket No. 551), and the motion for preliminary approval of
the Settlement Agreement (Docket No. 571). Jenner was also instrumental in negotiating
the Settlement with the defendant, participating in status conferences, preparing status
reports for this Court, and drafting and seeking approval of the Settlement before this
Court. Finally, since the Settlement Agreement was preliminarily approved, Jenner
attorneys have been involved in meeting with members of the class and explaining the
terms of the Settlement and the claims process.
6. Jenner's compensation for the services rendered in this case and
reimbursement of expenses have been and are wholly contingent on the outcome.
7. The records pertaining to the hours and expenses invested in this case by
Jenner are voluminous and reflect confidential information and privileged work product.
3
Therefore, rather than attach to this petition detailed daily time and expense records, I
summarize these records here. I am prepared to submit the full records to the Court for
inspection in camera at its request.
8. Throughout the time Jenner worked on this matter, its timekeepers have
time spent on this
been required to keep daily time-records that reflect the amount of
matter each day, along with a description of
the tasks performed. These records are
entered into a computer database, checked, and maintained in computer-readable format.
9. Through November 30, 2010, Jenner recorded 9,093 hours of attorney and
paralegal staff time spent on this matter. These hours were actually expended, in the
exercise of professional judgment, by the lawyers and paralegal staff involved in this
matter.
10. Jenner normally charges for the services of its attorneys and paralegal staff
on the basis of hourly rates. The lodestar calculation is made based upon reasonable
hourly rates for all current attorneys and paralegal staff, and, for those who are no longer
employed by Jenner, upon the billing rates for such attorneys and paralegal staff in his or
her final year of employment by the firm. The current (or last) hourly rates for Jenner
attorneys and staffwho worked on this matter range from $160.00 to $275.00 for
paralegal staff, and from $400.00 to $850.00 for attorneys. These hourly rates are
consistent with the usual and customary hourly rates for the Firm's work performed for
non-contingency fee clients, and these rates have been paid by Jenner's commercial
clients.
11. Computed at their current or last hourly rates, Jenner attorneys and
paralegal staff
have incurred $4,158,332.50 in lodestar fees. Exhibit B identifies
4
individuals who recorded over 10 hours of time to this matter, the hours they expended,
and their current or last hourly rates.
12. In calculating the above lodestar fee, I excluded hours billed by attorneys
and paralegal staff, who each spent fewer than 10 hours on this case. Specifically, I
excluded hours biled by the following attorneys and paralegal staff: Gail H. Morse
($468.75), Brent E. Kidwell ($5,381.25), Margaret 1. Simpson ($787.50), Cheryl L.
Olson ($550.00), Daniel O. Garcia ($80.00), Paul S. Ramonas ($195.00), Stephen S.
Mellin ($780.00), Tricia 1. Peavler ($455.00), David Wirkiowski ($275.00), Margaret
Small ($1,787.50), Robert 1. Utley ($412.50), Benjamin Robbins ($412.50), Ian H.
Gershengorn ($156.25), Alistair 1. Mcvan ($212.50), Samuel C. Gray ($85.00), Lory 1.
Manheimer ($1,856.25), and Tunde Holloway-Wusu ($1,168.75). Given the fact that the
fee petition does not seek compensation based directly on the lodestar, I have not
the time records,
reviewed every time entry personally. Based on a general review of
however, I believe that with the reductions just noted, the remaining time was reasonably
this action.
and necessarily expended in the prosecution of
13. Jenner's lodestar figures are based upon the firm's biling rates, which do
not include charges for expense items. Expense items are biled separately and such
charges are not duplicated in the firm's biling rates.
14. The expenses incurred in this action are reflected in Jenner's expense
records. These records are prepared from expense vouchers, check records, and other
source materials and are an accurate record of the expenses incurred.
15. On behalf of
the class, Jenner has incurred a total of$275,455.59 in
unreimbursed expenses in connection with the prosecution of this litigation through
5
travel for depositions and client
November 30, 2010. Such expenses consist primarily of
meetings, court reporting costs, and expert fees. These expenses were reasonably and
this litigation. Exhibit C provides a
necessarily incurred under the circumstances of
summary of
this case.
the expenses incurred in furtherance of
16. Implementing the Settlement wil require substantial additional time and
expenses; a description of the continuing and future work to be performed in
prospective costs and fees for
implementing the Settlement, as well as a projection of
such work, is provided in the Declaration of Joseph Sellers.
I declare under penalty of perjury that the foregoing is true and correct to the best
of my knowledge and that this Declaration was prepared in the District of Columbia on
January 13,2011.
6
EXHIBIT A
931074.1 1
Brief biographies of the Jenner & Block Attorneys who were Principally Involved in
Keepseagle v. Vi/sack, No. 99-cv-03119 are provided below:
Paul M. Smith
the
the Appellate and Supreme Court Practice and a
Paul M. Smith is a partner in the Firm's Litigation Department. He is a member of
Firm's Policy Committee. He is Chair of
the Creative Content, Media and First Amendment, and Election Law and
Redistricting Practices. Mr. Smith is AV Peer Review Rated, Martindale-Hubbells
highest peer recognition for ethical standards and legal ability.
Co-Chair of
Mr. Smith has had an active Supreme Court practice for two decades, including oral
arguments in fourteen Supreme Court cases. These arguments have included Crawford v.
Marion County Election Board (2008), the Indiana Voter ID case; LULAC v. Perry
(2006), and Vieth v. Jubelirer (2003), two congressional redistricting cases; Lawrence v.
Texas (2003), involving the constitutionality of
the Texas sodomy statute; United States
v. American Library Ass'n (2003), involving a First Amendment challenge to the
Children's Internet Protection Act and Mathias v. WorldCom (2001), dealing with the
Eleventh Amendment immunity of state commissions. His first argument was in Celotex
Corp. v. Catrett in 1986. Mr. Smith also worked extensively on several other First
Amendment cases in the Supreme Court, involving issues ranging from commercial
speech to defamation to "adult" speech on the Internet.
Mr. Smith also represents various clients in trial and appellate cases involving
commercial and telecommunications issues, the First Amendment, intellectual property,
antitrust, and redistricting and voting rights, among other areas. His recent trial work has
included several cases involving congressional redistricting as well as challenges to state
video game restrictioIlS under the First Amendment.
Mr. Smith graduated summa cum laude and Phi Beta Kappa from Amherst College in
1976 and received a J.D. from Yale Law School in 1979, where he served as Editor-inthe Yale Law Journal. The following year, Mr. Smith was a law clerk to Judge
Chief of
the United States Court of Appeals for the Second Circuit. From
James L. Oakes of
1980-81, Mr. Smith was a law clerk to Supreme Court Justice Lewis F. Powell, Jr
Mr. Smith was a member of the Board of Governors of the District of Columbia Bar from
2002-2008. He is a former board member and former Chair ofthe National Board of
Directors of
the Board of
The American Constitution Society, Co-Chair of
Directors of
Lambda Legal and a member of the Board of Directors of the Washington Lawyers
Committee for Civil Rights and Urban Affairs.
the country's leading lawyers in the
areas of Appellate Litigation and Media & Entertainment Law. In 2007, 2008, 2009 and
the country's leading lawyers in the area of
2010 Chambers USA also named him one of
First Amendment Litigation. Mr. Smith was recognized in the 2007, 2008, 2009 and
the
2010 Editions of Washington DC Super Lawyers for Appellate Law and as one of
Since 2003, Chambers USA has named him one of
931074.1 1
Filed 01/14/11 Page 10 of 20
the Top 10 lawyers in
Top 100 Lawyers in DC. In 2010, Mr. Smith was named one of
Washington, DC by Washington DC Super Lawyers and one of "Washington's Top
Lawyers" by Washingtonian magazine. Mr. Smith was also named one of
the "Decade's
Most Influential Lawyers" by The National Law Journal in 2010. The Firm was also
selected as 2010 "Copyright Firm of
the Year" by Managing Intellectual Property
magazine. In 2010, Mr. Smith was awarded the Thurgood Marshall Award from the
American Bar Association Section of Individual Rights and Responsibilities.
Mr. Smith is admitted to practice in Maryland, New York and the District of Columbia.
Michael T. Brody
the
Class Action Practice. He is a member of the Complex Commercial Litigation and Media
and First Amendment Practices and the Real Estate Finance Litigation and Workout Task
the Firm's Class Action Litgation Update online
Force. Mr. Brody is the Editor of
Michael T. Brody is a partner in the Firm's Litigation Department and a Co-Chair of
resource center, which provides regular reports on this legal issue. Mr. Brody is A V Peer
Review Rated, Martindale-Hubbells highest peer recognition for ethical standards and
legal ability.
Mr. Brody has defended a variety of clients in class actions. Mr. Brody has defended
securities fraud class actions, consumer class actions, and class actions alleging violations
of contract, consumer fraud statutes, fiduciary duties, and banking rules and regulations.
He has also defended class actions alleging tort duties, including a duty to warn and a
continuing medical monitoring duty. In addition to his representation of clients in the
defense of class actions, Mr. Brody is a lecturer in law at the University of Chicago Law
School, where he has taught a seminar course on class action practice.
In the securities law area, Mr. Brody has defended a variety of clients in derivative and
class action cases alleging violation of the federal and state securities laws, and
associated common law duties. For example, Mr. Brody has defended a public limited
partnership against the claim that its proposed recapitalization breached fiduciary duties,
defended public issuers of debt and equity securities in class actions challenging the
accuracy of their disclosures, and has represented clients in corporate control contests.
Mr. Brody has represented policyholders in coverage disputes with insurance companies.
He recently represented a policyholder in a dispute with its insurer involving a major
property casualty involving physical damage, environmental contamination, and loss of
income. The dispute was the subject of an appraisal proceeding, which resulted in
extensive evidentiary hearings, and related litigation.
Mr. Brody has also represented media and non-media defendants in libel actions in
federal and state court. Mr. Brody assisted in the trial of two libel actions in federal court
- one the defense of a media defendant concerning a national publication, the other the
defense of a law firm charged with defamation. In addition, Mr. Brody has represented a
national media defendant in connection with its publication in a business magazine of its
931074.1 1
Filed 01/14/11 Page 11 of 20
report of a legal controversy. The defendant argued that the challenged publication was a
fair report of judicial proceedings and also contained constitutionally protected
statements of opinion. The action was dismissed by the district court and that dismissal
was affirmed on appeaL.
the Firm's appellate practice area, Mr. Brody has argued more than a
dozen appeals in the Seventh Circuit, the Ilinois Appellate Court, and the Ilinois
Supreme Court. He also has assisted in, or supervised, the briefing of numerous other
appeals in those courts and in other federal and state appellate courts, including the
United States Supreme Court. Among other substantive areas, Mr. Brody has argued
appeals involving federal preemption, breach of contract, tort and personal injury, civil
rights, bankruptcy, and criminal law. In connection with this work, Mr. Brody is a
Committee Chair for the Seventh Circuit Bar Association and has participated in
organizing and presenting its programs for training appellate lawyers.
As a member of
Mr. Brody joined Jenner & Block in October 1984 after completing a clerkship with the
Honorable Antonin Scalia, then a Judge on the United States Court of Appeals for the
District of Columbia Circuit.
Mr. Brody received a Bachelors of Science degree, with distinction and Phi Beta Kappa,
from the University of Wisconsin-Madison in 1980, and received a Juris Doctor degree,
Chicago in 1983, where he was elected to the Order of
cum laude, from the University of
the Coif. While at the University of Chicago Law School, he was a member of the Law
Review and served as a member of its editorial board as a Comment Editor. From 1983 to
1984, Mr. Brody served as a law clerk for the Honorable Antonin Scalia, then a Judge on
the United States Court of Appeals for the District of Columbia Circuit. Mr. Brody is a
member of the bar of the Supreme Court of Ilinois, the Seventh and District of Columbia
Circuits, and the United States District Court for the Northern District of Ilinois.
Sam Hirsch
Sam Hirsch is a former partner in Jenner & Block's Washington, DC office. He was a
the Firm's Litigation Department and Appellate and Supreme Court Practice.
member of
While at Jenner & Block, Mr. Hirsch's practice focused primarily on election law,
redistricting, and voting rights. He has represented IMPAC 2000, the Democratic Party's
national redistricting project, as well as the Democratic National Committee,
the Democratic Congressional Campaign Committee, and the Democratic
congressional delegations from several of
the Nation's largest states. In the post-
2000 redistricting cycle, he has been actively involved in congressional, state-legislative,
and local redistricting efforts in more than a dozen states.
Mr. Hirsch served as the liaison to the National Conference of State Legislatures for
the
the ABA's monograph on
ABA's Election Law Committee. He is the coauthor of
redistricting law, "The Realists' Guide to Redistricting: Avoiding the Legal Pitfalls,"
the American Bar Association's Administrative Law Section and as a member of
931074.1 1
Filed 01/14/11 Page 12 of 20
the Election Law
Journal and authored the lead article in the Journal's inaugural issue, "Unpacking
American Bar Association (2000). He is the Associate Editor of
Page v. Bartels: A Fresh Redistricting Paradigm Emerges in New Jersey," 1 Election
7-24 (2002). More recently, he authored "The United States House
Congressional
ofUnrepresentatives: What Went Wrong in the Latest Round of
179-2 1 6 (2003), and co-authored (with
Redistricting," 2 Election Law Journal
University of Virginia law professor Dan Ortiz) Beyond Party Lines: Principles for
Redistricting Reform (Reform Institute 2005). Mr. Hirsch has presented lectures on
redistricting and election law at the National Conference of State Legislatures, the
Council of State Governments, Harvard Law School, New York University School of
Pennsylvania Law School, and Washington & Lee University.
Law, the University of
He also has testified before the National Commission on the Voting Rights Act.
Law Journal
Prior to joining Jenner & Block in 1995, Mr. Hirsch worked on Capitol Hil and
as a campaign manager, press secretary, and media consultant for Democratic
candidates for public office.
In 2004 and 2005, Mr. Hirsch was on the West Palm Beach trial team that won a
jury verdict in Coleman (Parent) Holdings Inc. v. Morgan Stanley & Co.,
$1.5 bilion
Incorporated - one of the largest jury verdicts ever awarded to a single plaintiff in
Mr. Hirsch graduated from Rice University in 1984 and received a J.D. from
Harvard Law School in 1993, where he served as Treasurer on the Harvard Law
Review. From 1993 to 1994, Mr. Hirsch clerked for Judge Francis D. Muraghan,
the United States Court of Appeals for the Fourth Circuit. Mr. Hirsch is a
member of the DC and Maryland bars.
Jr., of
Katherine A. Fallow
Katherine A. Fallow is a partner in Jenner & Block's Washington, DC offce. She is a
the Firm's Litigation Department and its Media and First Amendment, and
member of
Creative Content Practices. Ms. Fallow is a member and former Chair ofthe Hiring
Committee for the Firm's Washington, DC office.
Ms. Fallow has litigated First Amendment, traditional media, and new media cases at the
trial and appellate leveL. She has also counseled clients on governent regulation of
expression. Her First Amendment and media experience includes:
. Representing video game makers and retailers in the U.S. Supreme Court and in
federal appellate and district courts across the country in the video game
industry's constitutional challenges to numerous state laws restricting the content
of video games.
. Representing the American Library Association at trial and before the Supreme
Court in its challenge to the federal Children's Internet Protection Act.
931074.1 1
Filed 01/14/11 Page 13 of 20
. Filing amicus briefs in the Supreme Court at the merits stage in significant First
Amendment cases, including Us. v. Stevens, Us. v. Wiliams, and City of Erie v.
Pap's A.M, and in support of cert petitions in cases involving the reporter's
privilege, fighting words, and defamation.
. Counseling clients on recent amendments to 18 U.S.C. § 2257 (federal
recordkeeping requirements for sexually explicit expression).
. Acting as counsel of record on a petition for a writ of certiorari in a case raising
significant First Amendment questions concerning the regulation of nudity on
cable television.
. Successfully defending a professional medical association against defamation and
Lanham Act claims based on an article published in the association's journal.
Ms. Fallow has also represented the recording, motion picture, and video game industries
in their efforts to stop digital piracy, including in a lawsuit on behalf of
the motion
picture studios against the operator of a bittorrent file-sharing site. In 2004, Ms. Fallow
represented the video game industry in a successful suit against a producer of video game
copying software.
Ms. Fallow graduated Phi Beta Kappa and with highest honors from the University of
California at Berkeley in 1991. She received her J.D., magna cum laude, from Harvard
Law School in 1996, where she was an editor of the Harvard Civil Rights-Civil Liberties
Law Review. She served as a law clerk to the Honorable Robert E. Keeton of
the United
States District Court for the District of Massachusetts (1996-97) and the Honorable
the United States Court of Appeals for the Eleventh Circuit (199798). Ms. Fallow is a member of the bar of the District of Columbia and Massachusetts
(inactive) as well as the United States Supreme Court, and numerous federal courts of
the DC Bar's Media and Law Committee, and serves
appeals. She is an active member of
as co-editor to the ABA's Communications Lawyer.
Rosemary Barkett of
Ryan K. Harding
Ryan K. Harding is an associate in the Firm's Litigation Department. He is a member of
the Products Liability and Mass Tort Defense Practice and the Labor and Employment
Practice.
product liability, commercial and labor &
employment litigation. In December 2008, as lead trial counsel Mr. Harding obtained a
full defense verdict for General Motors in a Connecticut Superior Court jury trial
Mr. Harding has experience in the areas of
involving allegations of
product liabilty. In March 2003, he successfully defended
Saturn Corporation as lead counsel in a jury trial in the Circuit Court of Cook County
involving a product litigation dispute. He also represented General Motors in a patent
infringement case. He has served as co-counsel in two jury trials in the Circuit Court of
Cook County involving commercial disputes. He has considerable deposition experience.
931074.1 1
Filed 01/14/11 Page 14 of 20
Mr. Harding received his B.B.A. and M.B.A. from Tennessee State University in 1995
Law in
and 1996, respectively. He received his J.D. from Howard University School of
2001. While at Howard, Mr. Harding was a member of the Howard Law Journal and the
Huver 1. Brown Trial Advocacy Moot Court Team.
intern in the
areas of product litigation, labor and employment law, commercial transactions and
international policy.
Mr. Harding worked at General Motors in 1999, as a summer Legal Staff
Before attending law school, Mr. Harding worked at Saturn Corporation where he
coached and motivated Customer Assistance Managers, resolved customer disputes on
product-related issues, and analyzed financial data for use in market area planning.
In 2007, Mr. Harding was inducted into the inaugural class of
the Stakeholder 100, a
program designed to identify the top 100 performing associates of color from the nation's
law firms and contribute to their long-term career development.
Mr. Harding is a member of
the National Bar Association and the Chicago Bar
Association.
Jessica Ring Amunson
Jessica Ring Amunson is an associate in the Firm's Litigation Department. She is a
member of the Appellate and Supreme Court Practice, the Election Law and Redistricting
Practice, and the Media and First Amendment Practice.
the Appellate and Supreme Court Practice, Ms. Amunson has
participated in both merits and amicus briefing for numerous Supreme Court cases, and
the federal Courts of Appeals. Ms. Amunson's
has likewise briefed cases before most of
recent experience includes litigation of administrative law matters, contract disputes, civil
rights claims, and First Amendment issues.
As a member of
the Firm's Election Law and Redistricting Practice, Ms. Amunson has
briefed matters before the United States Supreme Court and the federal Courts of Appeals
involving partisan gerrymandering, voter identification requirements, and the National
Voter Registration Act. Ms. Amunson also litigated an election contest suit involving
allegations of electronic voting machine malfunction.
As a member of
Ms. Amunson maintains an active pro bono practice and was appointed in 2009 by the
Chief Judge of the United States Court of Appeals for the District of Columbia Circuit to
serve a three-year term on the D.C. Circuit Judicial Conference's Standing Committee on
Pro Bono Legal Services.
Ms. Amunson received her B.A. in English, magna cum laude, in 1995 from Georgetown
University, where she was Phi Beta Kappa. She also received an M.A. in English from
931074.1 1
Filed 01/14/11 Page 15 of 20
Georgetown in 1997. In 2004, she received her J.D., magna cum laude, from Harvard
Law School, where she served as an articles editor of
the Harvard Law Review.
Ms. Amunson clerked for the Honorable Merrick B. Garland of the United States Court
of Appeals for the District of Columbia Circuit from 2005 to 2006. She is a member of
the Bars of Maryland and the District of Columbia, as well as numerous federal courts.
Anne Ralph
Ane Ralph is a former associate in Jenner & Block's Washington, DC office. She was a
the Firm's Litigation Department.
member of
Ms. Ralph graduated summa cum laude and Phi Beta Kappa from the University of
Notre Dame in 2001 with a B.A. in English and Philosophy. She also was a member
the Honors Program and a Glenna Joyce Scholar. Ms. Ralph received a J.D. in
of
Law, where she was named to the
Virginia School of
2004 from the University of
Order of the Coif, a Hardy Cross Dilard Scholar, and was a member of the Virginia
Law Review and the Virginia Journal of International Law. From 2004-2005, Ms. Ralph
served as a law clerk to the Honorable Kenneth F. Ripple, United States Court of
Appeals for the Seventh Circuit.
Ms. Ralph is admitted to practice in the District of Columbia and Ohio.
Carrie F. Apfel
Carrie F. Apfel is an associate in the Firm's Litigation Department. She is a member of
the Creative Content Practice and the Election Law and Redistricting Practice. Ms. Apfel
also serves on the Firm's pro bono committee and the women's forum committee.
Ms. Apfel's practice has focused on litigation at the trial leveL. She serves as plaintiffs'
Native American farmers and ranchers
counsel in a nationwide class action on behalf of
alleging discrimination in the USDA's farm loan programs, and has represented major
governent contractors in several complex commercial disputes. She has extensive
motions practice and discovery experience, and has litigated before dispute resolution
boards, arbitration panels, and federal district courts. She has also participated in several
mediations.
In addition to her commercial practice, Ms. Apfel maintains an active pro bono practice.
As part of this practice, she has participated in briefing on the merits and in an amicus
capacity in both the Supreme Court and multiple Courts of Appeals on civil rights and
First Amendment issues, and has assisted individual clients in the area of disability rights
and human traffcking. She authored an article on photo identification laws for the
American Constitution Society, and co-authored an article on commercial speech for the
Washington Legal Foundation.
931074.1 1
Filed 01/14/11 Page 16 of 20
Ms. Apfel graduated summa cum laude and Phi Beta Kappa from Duke University in
1997 with a B.A. in Development Planning and Social Change. In 2005, Ms. Apfel
Virginia School of Law, where she was named to
received a J.D. from the University of
the Coif. She was also a Hardy Cross Dilard Scholar, served as the
the Order of
the Virginia Law Review, and received the James C. Slaughter Honor
Managing Editor of
Award, awarded by the entire faculty to an outstanding student of the graduating class.
Prior to joining the Firm, Ms. Apfel served as a law clerk to the Honorable Diana Gibbon
Motz on the U.S. Court of Appeals for the Fourth Circuit.
Ms. Apfel is admitted to practice in the District of Columbia and New York, as well as
the U.S. Court of Appeals for the Fourth Circuit, and the U.S. District Courts for the
Florida.
Maryland and for the Northern District of
District of
Amy Wils
Amy D. Wills is a former associate in Jenner & Block's Chicago, IL office. She was a
the Firm's Litigation Department and the Complex Commercial Litigation
member of
Practice.
Ms. Wills joined Jenner & Block after spending one year as a law clerk to the
Honorable Herbert J. Hutton, U.S. District Court for the Eastern District of
Pennsylvania, and one year as a law clerk to the Honorable Mary Beck Briscoe, U.S.
Court of Appeals for the Tenth Circuit.
Ms. Wills graduated with High Distinction and Honors from the Schreyer Honors
College of the Pennsylvania State University in 2001, earning a B.A. in Psychology
and a B.A. in Women's Studies. In 2005, Ms. Wils received her J.D. cum laude from
Law. During law school, Ms. Wils participated
Temple University's Beasley School of
in Temple's Legal Advocacy for Patients Clinical, where she provided legal assistance
to disabled clients, and served as an officer for the Women's Law Caucus. She also
served as the Managing Editor of
the Temple Law Review, where she published an
article on expert testimony and syndrome evidence.
Ms. Wils is a member of
931074.1 1
the Pennsylvania, New Jersey (inactive) and Ilinois Bars.
Filed 01/14/11 Page 17 of 20
EXHIBITB
931074.1 1
Filed 01/14/11 Page 18 of 20
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EXHIBIT 6
EXHIBIT 7
Filed 01/14/11 Page 10 of 11
Filed 01/14/11 Page 11 of 11
EXHIBIT 8
Case 2:00-cv-06003-DMC-MF
Case 1:99-cv-03119-EGS
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EXHIBIT 9
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EXHIBIT 10
Plaintiffs,
v.
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
(EGS)
[PROPOSED] ORDER ON PLAINTIFFS’ MOTION FOR AN AWARD OF
ATTORNEYS’ FEES AND EXPENSES
Upon consideration of Plaintiffs’ Motion for an Award of Attorneys’ Fees and
Expenses, it is hereby ORDERED that the motion is GRANTED:
The request for an award of attorneys’ fees and expenses in the amount of $60.8
million is approved.
SO ORDERED this ________ day of _________________, 2011.
_________________________________
The Honorable Emmet G. Sullivan
Copies to all counsel

Plaintiff`s Motion for an Award of Attorney`s Fees and Expenses

Transcription

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