United States District Court, D. Columbia
November 8, 2005.
ELOUISE PEPION COBELL, et al., Plaintiffs,
GALE NORTON, Secretary, Department of the Interior, et al., Defendants.
The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge
This matter comes before the Court on plaintiffs' Proposed
Notice  to the Class of Plaintiffs' Petition for Interim
Fees under the Equal Access to Justice Act ("EAJA"). Upon
consideration of plaintiffs' proposed notice , the
objections thereto , plaintiffs' supplemental information
, the applicable law and the record in this case, the Court
finds that plaintiffs' Proposed Notice to the Class of
Plaintiffs' Petition for Interim Fees under the Equal Access to
Justice Act is reasonable and in conformity with Rule 23(h)(1).
The Court will require that plaintiffs publish the class notice
in local newspapers as well as on the plaintiffs' website.
On August 17, 2004, plaintiffs filed a Petition for Interim
Fees under the Equal Access to Justice Act. On July 12, 2005,
this Court entered an Order requiring, inter alia, that
plaintiffs "within a reasonable time after this date, file with
the Court and serve upon the defendants a proposed notice to the plaintiff-class concerning the plaintiffs'
Petition for Interim Fees Under the Equal Access to Justice Act,
as well as a proposed plan for distributing that notice to the
class" to satisfy Federal Rule of Civil Procedure 23(h)(1).
Cobell v. Norton, 229 F.R.D. 5, 24 (D.D.C. 2005).
Pursuant to the Court's Order, plaintiffs propose placing the
Notice on the front page of the www.indiantrust.com website
with a title in bold capital letters stating "NOTICE TO CLASS
BENEFICIARIES OF PLAINTIFFS' PETITION FOR AN AWARD OF ATTORNEYS'
FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT." Plaintiffs
proposed Notice states:
Please be aware that past and present Individual
Indian Money ("IIM") Trust account holders may be
members of a class action lawsuit, Cobell v.
Norton, No. 1:96CV01285 (D.D.C.) (Judge Lamberth).
The defendants in this lawsuit, the Secretary of the
United States Department of the Interior and the
Secretary of the United States Department of the
Treasury, are the federal government's
Trustee-Delegates for the IIM Trust. The Court in the
Cobell case, on December 21, 1999 ruled that the
Department of the Interior must provide each IIM
Trust beneficiary with a complete and accurate
accounting of his or her IIM Trust account and held
further that the government was in breach of its
trust duties for its failure to do so. This ruling
was affirmed on February 23, 2001 by the United
States Court of Appeals for the District of Columbia
Based on these significant court victories and
because the government has acted in bad faith, the
named plaintiffs have sought an interim award of
expenses and attorneys' fees in the amount of
$14,528,467.71 under the Equal Access to Justice Act
(EAJA). Under EAJA, a party that has won its case in
whole or in part is called the "prevailing party" and
if the criteria of EAJA are met, that party is
eligible for an award of expenses and attorneys fees
paid by the government. Such an award, as here,
includes costs such as attorneys' fees and fees paid
to experts. In general, the EAJA award is calculated
using a reasonable hourly rate and the time expended
by the individual lawyer or expert.
If you would like to download a copy of Plaintiffs'
Petition for Interim Fees under the Equal Access to
Justice Act, which was filed on August 17, 2004, for
your review, please click here. If you would like
to discuss this Petition with plaintiffs' counsel, you may contact class counsel Dennis Gingold
or Keith Harper at 1-866-785-4166, or by e-mail at
If you would like to comment on or object to the
Plaintiffs' Petition for Interim Fees, you may make
an appropriate filing with the U.S. District Court
for the District of Columbia, 333 Constitution
Avenue, Washington, DC 20001, pursuant to Federal
Rules of Civil Procedure and Local Rules. All filings
should identify the case, Cobell v. Norton, Civ.
No. 96-1285 and the presiding Federal Judge, the
Honorable Royce C. Lamberth. To be considered, any
comment or objection must be received by August 15,
Plaintiffs argue that the proposed notice publication via the
Internet is adequate and reasonable. Defendants object to the
content, distribution method, and timing of plaintiffs' proposed
notice. Defendants request the Court order the following: (1) the
notice must be disseminated more broadly than by a single
Internet posting, preferably through newspaper advertisements
published throughout Indian country; (2) that the notice must
afford class members at least sixty (60) days to see the notice
and respond to or comment upon the fee petition; and (3) that the
text of the notice be revised to: (i) omit argumentative
assertions, (ii) provide a simple means for obtaining copies of
the fee petition and the government's opposition, and (iii)
clearly identify class counsel's contact number as toll free.
(Defs.' Obj. 1-2).
A. Plaintiffs' Proposed Manner of Dissemination
In Cobell v. Norton, 229 F.R.D. 5 (D.D.C. 2005), this Court
expressly recognized class counsel's obligation under Federal
Rule of Civil Procedure 23(h) to notify class members of its
pending motion for an interim award of attorneys fees under the
Equal Access to Justice Act. Rule 23(h)(1) requires that notice
of a motion for fees be served on all parties and, for motions by
class counsel, directed to class members in a reasonable manner.
Fed.R.Civ.P. 23(h)(1) (emphasis added). The Court noted the important purposes
behind such notice to class members and observed that fee awards
"are a powerful influence on the way attorneys initiate, develop,
and conclude class actions." Cobell, 229 F.R.D at 21 (D.D.C.
2005) (internal quotation marks omitted). The Court also stated,
that "members of the class have an interest in the arrangements
for payment of class counsel whether that payment comes from the
class fund or is made directly by another party." Id. (internal
quotation marks omitted). As the Court recognized, the aim of the
notice rule is to provide "the class with sufficient information
to question objectionable fee requests and to scrutinize any
potential conflicts of interest that arise from certain payment
Although an individualized notice by mail to each class member
would be the ideal method to notify members of the class,
plaintiffs' notice by publication via the Internet must be judged
as to its reasonableness. The reasonableness of the notice must
be assessed in consideration of the facts of the particular case
and the specific circumstances surrounding the reason for such
Interior has mismanaged the Individual Indian Money ("IIM")
Trust for more than 100 years. They cannot identify all of the
current beneficiaries of the trust, much less all past and
present beneficiaries. As the United States Court of Appeals for
the District of Columbia has noted:
The federal government does not know the precise
number of IIM trust accounts that it is to administer
and protect. At present, the Interior Department's
system contains over 300,000 accounts covering an
estimated 11 million acres, but the Department is
unsure whether this is the proper number of accounts.
Plaintiffs claim that the actual number of accounts
is far higher, exceeding 500,000 trust accounts. See Cobell v. Norton, 240 F.3d 1081, 1089 (D.C. Cir. 2001).
Nine years into this landmark breach of trust litigation,
Interior remains unable to identify the accounts that should have
been established for each individual Indian trust beneficiary.
Nor can Interior provide a list of the name and addresses of each
The class here is massive, consisting of approximately 500,000
current and former IIM Trust beneficiaries. Class counsel have
utilized their website as the primary means to communicate with
class members. Moreover, Interior has sent out tens of thousands
of letters to class members specifically identifying the website
as the primary place where interested beneficiaries can acquire
additional information about the Cobell v. Norton case. (Pls.'
Proposed Notice 3). Indeed, the July 12, 2005 Order itself which
requires notice to all members of the class expressly directs
class members to the www.indiantrust.com website for additional
information. In light of the customary use of and reliance on the
website by beneficiaries, and the fact that beneficiaries are
already directed to the website as a result of court ordered
notices that have already been and will be provided, it is
reasonable to conclude that most beneficiaries will be made aware
of plaintiffs' fee petition with the publication of a notice on
Defendants insist that plaintiffs, in addition to posting the
notice prominently at their website, should also be required to
give some form of written notice to the class members. The single
case they cite to support the objection is Peters v. Nat'l R.R.
Passenger Corp., 966 F.2d 1483, 1486 (D.C. Cir. 1992), which
states that notice by mail "ordinarily satisfies" notice
requirement under the far more stringent standard of Rule
23(c)(2). (Defs.' Obj. 5). Peters is not relevant here. It is axiomatic that, although notice by mail
satisfies certain notice provisions, it is not required.
Furthermore, this is not a Rule 23(c)(2) situation, where "best
notice practicable under the circumstances" is required. Here,
the far more relaxed standard of Rule 23(h)(1) notice in a
"reasonable manner" applies.
In the present circumstances of this interim EAJA petition, the
notice by publication suggested by plaintiffs satisfies the
reasonableness standard. The interests of the named plaintiffs,
other class members and class counsel are perfectly consistent
for purposes of this EAJA petition. All would benefit from the
award. This is not a situation where the monies to pay fees and
expenses would be derived from monies that otherwise would go to
class members. Accordingly, plaintiffs' proposed notice by
publication via the Internet is adequate and reasonable in the
circumstances presented here. Because of the regular use of
plaintiffs' website for communication to class members and its
routine identification in past and pursuant to the Court's July
12, 2005 Order future notices to virtually every class member,
it is reasonable to conclude that such notice is adequate for
purposes of Rule 23(h).
B. Newspaper Publication
The Court understands that notice by publication via the
Internet is reasonable but not absolute. The Court also is wary
of previous representations by class counsel that at times the
Internet is not an adequate vehicle for communicating with the
Your Honor, what we've also learned from the recent
few weeks of dealing with our clients with regard to
the notice issues that we've [sic] wrestling with is
that very few of the them have access to the
Internet, very few of them have computers. I will
also tell Your Honor that very few of them have voice
mail, so communications and actual communications
sometimes can be a challenge. Also, very few of them have money, so long distance
telephone calls are actually quite expensive to them,
and are quite meaningful to them, and for those with
whom we are communicating effectively, Your Honor, it
requires many of them to drive distances to get to a
facility with a fax machine or electronic means, or
something where they can provide us that.
Tr. (Hrn'g, Oct 19, 2004), at 7-8.
Considering the facts and circumstances surrounding the class
members and history of this case, the Court agrees with
defendants that publication by newspapers, in addition to website
notice, is desirable. Defendants demands in this regard, however,
are too extreme. Defendants provide no authorities that suggest
that a 1/4 page notice, especially in the EAJA Petition context,
is not sufficient. Nor do defendants explain why multiple
publications of the notice over a three-week period is necessary.
Plaintiffs suggest that running the notice once in each
publication would be ample and reasonable. The Court agrees.
Furthermore, defendants suggest publication in far too many
papers. Newspaper publication should be limited to national
Indian Country periodicals: Native American Times, Indian
Country Today and News From Indian Country. These publications
are generally considered to be the most widely read news outlets
in Indian Country and would make the notice available to the
majority of individual Indian trust beneficiaries.
C. Plaintiffs' Proposed Notice
1. Objection Period
Defendants argue that a material defect in the notice is the
brief comment period that class counsel proposes to afford to the
class. Defendants also contend that class members should be given
no less than sixty (60) days to submit comments to the Court
concerning class counsels' fee petition. But defendants' objection cites no supportive
authority whatsoever. Rather, defendants' rationale as to why
thirty (30) days is not reasonable is that "[i]t could reasonably
take a few weeks for class members to become aware of the notice,
a few weeks more to obtain and review a copy of the fee petition
itself, and still another few weeks to write and submit comments
on the petition." The Court is not persuaded by this argument.
The 30 days suggested by plaintiffs gives a meaningful
opportunity to the class for comment following final publication
of the notice.
2. Bad Faith
The notice as currently drafted states that the EAJA Petition
is "[b]ased on these significant court victories and because the
government acted in bad faith." (Pls.' Proposed Notice 4).
Defendants object to the reference to their bad faith, arguing
that it has not been established that they have acted in bad
faith. (Defs.' Obj. 6). The Court agrees that the "bad faith"
assertion is made generally without reference to any facts that
plaintiffs have alleged. Moreover, although bad faith in the
litigation has been argued by plaintiffs as a reason justifying
their fee award, their contention has been disputed by defendants
and remains unresolved. The reference must be deleted from the
proposed notice to the class.
3. Copies of Defendants' Opposition
Defendants urge that the notice should also tell class members
that they can obtain a copy of the fee petition by a telephone
request to class counsel. Defendants also insist that the notice
disclose that the government has opposed the fee petition and
inform interested class members that they can obtain a copy of
the government's opposition through the same means as the fee
petition itself, either by visiting plaintiffs' website or by a
telephone request to class counsel. The Court finds these measures unnecessary. None of what
defendants request is required by Rule 23(h) only notice of the
Fee Request itself is required. Defendants present no legitimate
reason or rationale to expand Rule 23(h) in this manner.
4. Toll-Free Telephone Number
Finally, plaintiffs' proposed notice includes a telephone
number with an "866" area code that people may not readily
recognize as being a toll-free line. Given the history of this
case and the status of many of the class members, and plaintiffs'
consent, the Court has no objection to revision of the notice to
make clear that the class counsels' contact number is toll-free.
Accordingly, plaintiffs' Proposed Notice to the Class of
plaintiffs' Petition for Interim Fees under the Equal Access to
Justice Act will be approved as reasonable and in conformity with
Rule 23(h)(1), to be distributed in the manner set forth herein.
A separate Order shall issue this date.
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