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Cobell v. Jewell

United States District Court, District of Columbia

January 31, 2017

ELOUISE PEPION COBELL, by and through TURK R. COBELL, as the personal representative of her estate, et al. Plaintiffs,
SALLY JEWELL, Secretary of the Interior et al. Defendants.



         Herein the Court will close what may be the final major dispute in two decades of hard-fought litigation. Plaintiffs, Native Americans whose lands were held in trust by the Department of the Interior, sought to remedy a century of wasteful trust mismanagement. They obtained a stunning victory which brought about trust reform and a significant recovery for the plaintiff class. Helping them in their quest was a team of attorneys whose dedication and tenacity deserve high commendation. One of those attorneys was Mark Brown. After this case settled in 2009, Plaintiffs' counsel moved for an award of attorney's fees and costs. Brown was omitted from the motion, as were the hours he spent litigating this matter. He now petitions this Court for his share of the fee award.

         This matter was initially referred to the undersigned for a Report and Recommendation on Brown's petition for attorney's fees [Dkt. 3699]. The parties later consented to the undersigned's making a final determination of Brown's petition [Dkt. 4201]. After reviewing the parties' many filings and holding a five-day evidentiary hearing on the matter, [1] the Court will grant in part and deny in part Brown's petition.


         An abbreviated timeline of this case and the present fee petition will help place the rest of the decision in context. In the late nineteenth and early twentieth centuries, the United States had a policy of dividing Native American lands into smaller parcels, to be held in trust by the Department of the Interior for the benefit of individual Native Americans. See Plaintiffs' Amended Complaint [Dkt. 3671] ¶ 17. These parcels of land generated income, which was placed into what are commonly referred to as “Individual Indian Money” accounts. Id. ¶ 2. Plaintiffs filed this class action in 1996 against the Secretary of the Interior, alleging that the Department had mismanaged these accounts and the land it held in trust. Id. ¶ 3-4. Plaintiffs sought an accounting from the government and an order compelling the government to reform its trust practices. Id. ¶ 5.

         After a bench trial in 1999, Judge Lamberth found that the government had violated several of its trust duties. See Cobell v. Babbitt, 91 F.Supp.2d 1, 6 (D.D.C. 1999). The Court of Appeals affirmed this finding in 2001. See Cobell v. Norton, 240 F.3d 1081, 1086 (D.C. Cir. 2001). The rest of this case's life has been spent overseeing the Department's accounting and the reform of its trust practices.

         Following many years of hard fought litigation, the case ultimately settled in 2009. Because of its enormous size - in the billions of dollars - the settlement required congressional approval, which did not come until late 2010. See Plaintiffs' Motion for Preliminary Approval of the Settlement [Dkt. 3660] at 1. After Congress signed off on the settlement, the matter came back to this Court for final approval. Within the settlement agreement was a separate agreement on payment of class counsel's fees. Id. That agreement provided that Plaintiffs' counsel could apply for fees by motion and, most importantly, that neither party would appeal a fee award that fell within the range of $50-99.9 million. Id. at 15-16. Judge Hogan, who had inherited the case earlier in 2010, held a fairness hearing in June 2011 and approved the parties' settlement. See Final Order Approving Settlement [Dkt. 3850] at 4. Judge Hogan also awarded Plaintiffs' counsel $99 million in attorney's fees. Id. at 9-10. The Court of Appeals affirmed Judge Hogan's approval of the settlement in 2012. See Cobell v. Salazar, 679 F.3d 909, 913 (D.C. Cir. 2012).

         But according to Brown, something was missing from Plaintiffs' fee application: his hours spent litigating the case. When Plaintiffs' counsel submitted their motion for an award of fees in January 2011, they did not name Brown among class counsel and did not seek compensation for the time he expended in the case. See Plaintiffs' Motion for Attorney's Fees and Expenses of Class Counsel [Dkt. 3678]. He intervened in the case a month later and asserted that he ought to be paid out of class counsel's fee award. See Petitioner's Response to Plaintiffs' Motion for Attorney's Fees [Dkt. 3699]. In his original petition, Brown sought compensation for approximately 11, 500 hours of time, totaling about $5.5 million. See Id. Judge Hogan tabled the dispute by placing in escrow the amount Brown claimed and awarding Plaintiffs' counsel the balance of the $99 million fee award. Final Order Approving Settlement [Dkt. 3850] at 9-10.[2]

         After a series of unsuccessful mediations, Judge Hogan referred the matter to the undersigned for resolution of Brown's fee petition. May 12, 2015 Referral Order [Dkt. 4124]. The undersigned held a hearing, heard testimony from several witnesses, accepted hundreds of exhibits, and heard legal argument from Plaintiffs and Brown. On this robust record, the Court is now prepared to issue its decision.


         The following findings of fact are based on the record adduced during the Court's five-day evidentiary hearing. Two introductory notes are in order. First, Brown filed objections to several affidavits Plaintiffs offered during the hearing.[3] He also filed two motions in limine prior to the hearing - one regarding the affidavit of the late Elouise Cobell, lead class representative, and one regarding the testimony of Bill Dorris, a Kilpatrick Townsend & Stockton (“Kilpatrick Stockton”) attorney who entered the case in 2004 and continues to represent Plaintiffs today.[4] The Court sees little value in addressing each of the voluminous objections in detail here. Instead, it will overrule the objections except as stated otherwise in this decision. Most pertain to the weight, rather than the admissibility, of the evidence. And even to the extent some piece of evidence was partially or potentially objectionable - such as an item of evidence whose relevance was informed by context, or some statement that would be hearsay if offered for one purpose but not if offered for another - the Court accepted the evidence for what it was worth, disregarding objectionable portions. See Harris v. Rivera, 454 U.S. 339, 346 (1981) (“In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.”); United States v. Microsoft Corp., 253 F.3d 34, 101 (D.C. Cir. 2001) (upholding use of summary witnesses in bench trial despite danger of hearsay because the judge is presumed to ignore inadmissible evidence); Flanagan v. Islamic Republic of Iran, Civil Action No.: 10-1643 (RC), 2016 WL 3149560, at *22 n.22 (D.D.C. June 3, 2016) (noting that even if certain record evidence at a bench trial contained hearsay, there was no danger of the Court's being improperly influenced by it).

         Second, almost every witness in this case had the potential to give biased testimony. Brown, who was his own primary witness, of course stands to win a large sum if he convinces the Court he is entitled to a fee award. But the Court also appreciates that, as was made clear at the hearing, every dollar not awarded to Brown will go from the escrow account to Kilpatrick Stockton, the firm that provides sole representation for Plaintiffs today. As such, several of Plaintiffs' witnesses, including Kilpatrick Stockton partners David Smith and Bill Dorris, have a direct financial interest in the outcome here. See 4/22 Tr. 139:12-22, 143:5-144:1, 199:11-25, 234:13- 19; 5/25 Tr. 127:14-128:2. To be sure, some witnesses on each side do not have such an interest, like Dennis Gingold, who served as lead class counsel from the inception of the Cobell case until 2012, whose interest in this case Kilpatrick Stockton bought out when it took over as lead counsel. See 4/21 Tr. 261:5-20. Nevertheless, the Court took the testimony of each of the potentially biased witnesses for what that testimony was worth, considering the danger of possible bias, the witness's prior consistent or inconsistent statements, corroborating evidence, and the witness's demeanor during the hearing. See, e.g., Cruise Connections Charter Mgmt. 1, LP v. Attorney General of Canada, 55 F.Supp.3d 156, 177 (D.D.C. 2014) (recognizing that one witness was interested in the outcome but that his testimony should be credited because it was “cogent and unequivocal”); Faison v. Dist. of Columbia, 893 F.Supp.2d 143, 149 n.5 (D.D.C. 2012) (concluding that the plaintiff was an interested witness and only partially credible because of her “tendency to exaggerate when it might help her case”). The Court's findings of fact based on that testimony and the entire record follow.

         A. Brown's Engagement

         Mark Brown has been an attorney since 1979. 4/20 A.M. Tr. 20:12-18. Prior to working on the instant case, he was employed as a partner in a respected Los Angeles law firm. Id. He met Dennis Gingold, lead class counsel, in the early nineties. Id. 20:23-21:11. After Plaintiffs won the first trial before Judge Lamberth in 1999, Gingold recommended to the lead class representative, Elouise Cobell, that she engage Brown to work on the case. See Id. 22:11-21; 4/21 Tr. 227:15-18; Brown Ex. 1 at 1; Affidavit of Keith Harper [Dkt. 4204-1] ¶ 2. She agreed to do so. Brown Ex. 1 at 1. Brown accepted her offer to join the Cobell team in January 2000, resigned his position in California, and moved to Washington, D.C. to work on the Cobell matter full-time. 4/20 A.M. Tr. 21:12-16, 25:3-11, 28:17-29:13.

         Their agreement - which is at the heart of the parties' dispute - is memorialized in letters of engagement from several of the class representatives to Brown. Id. 29:14-30:6; see Brown Ex. 1 (containing four engagement letters). The evidence showed that Brown signed two of the letters - from Cobell herself and from her charitable foundation, the Blackfeet Reservation Development Fund (“BRDF”) - on March 3, 2000. Brown Ex. 1 at 6, 8. The letters provided that Brown would be compensated on a contingency basis. See Id. at 1. Specifically, Brown was to receive, subject to approval from this Court, two percent of “the total upward adjustment in the aggregate trust funds standing to the credit of the trust beneficiaries as a result of the litigation or its settlement.” Id. The letters also stated that Brown's customary billing rate was $350 per hour. Id. Brown testified that his billing rate was included in the letters for future fee applications. 4/20 A.M. Tr. 36:6-10. The letters further provided that Brown would be reimbursed for monthly trips back to California. Brown Ex. 1 at 2; 4/20 A.M. Tr. 26:5-17. In his testimony, Gingold noted that he gave Brown some information to include in the letters, but that Brown drafted the letters himself. 4/21 Tr. 209:7-14.

         The March 3, 2000 engagement letters that Brown signed also incorporated the terms of Plaintiffs' engagement letters with Gingold, Thaddeus Holt, and Elliott Levitas, other founding members of the litigation team. Brown Ex. 1 at 1; 4/20 A.M. Tr. 30:16-31:7. Those letters, dated April 14, 1999, provided a contingent fee arrangement for Gingold, Holt, and Levitas and authorized the attorneys to seek interim fee awards under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (2016). Brown Ex. 2 at 2. Any interim award under the EAJA would reduce the amount payable to counsel from any later contingent fee award. Id.

         The April 1999 engagement letters also contained a provision regarding the death, withdrawal, or disability of any Cobell attorney. That provision, which has become the focal point of the present dispute, reads in full:

If any of the counsel dies, withdraws, or becomes disabled prior to the completion of his work under this agreement, he shall be entitled to a portion of the fee (and all expenses to date of the disability, death, or withdrawal) to which he would otherwise have been entitled, also taking into account the services rendered by his sub-retained counsel. The payment will be made at the same time as other counsel are paid and shall represent the value of his services to the death, disability or withdrawal, taking into account the total fees payable to legal counsel.


         B. Brown's Early Work on Cobell

         Because Brown was only to be paid on contingency and as interim EAJA awards might permit, he lived simply after moving to Washington. He resided in Gingold's basement and the two drove together to and from work each day. 4/20 A.M. Tr. 28:10-20. As might be expected in a case of this magnitude, workdays were long and tiring. See Id. 42:13-22, 63:16-64:14 (observing that the team worked “seven days a week” during the 2000-2003 period). The team had no secretaries or paralegals and worked in tight office space. Id. 44:16-25, 45:24-46:6, 65:1-12.

         Gingold, as lead counsel, was generally in charge of assigning work and coordinating litigation strategy. Id. 42:23-43:16; 4/21 Tr. 226:11-24; 4/22 Tr. 41:2-8. Brown undertook significant work at Gingold's behest. This included many tasks typically expected of trial counsel, including drafting and revising filings, researching legal issues, participating in attorney conferences, and taking and defending depositions. See, e.g., 4/20 A.M. Tr. 69:7-24 (motions practice); id. 73:4-12 (took Donna Erwin deposition); 4/20 P.M. Tr. 208:17-21 (prepared and defended Elouise Cobell's deposition); id. 211:13-212:15 (discussing time spent in attorney conferences with Elouise Cobell). Brown also took the lead early-on in negotiating a fee dispute with Price-WaterhouseCoopers, an accounting firm to which Plaintiffs owed a great deal of money. 4/20 A.M. Tr. 45:1-20. Brown was able to successfully negotiate a payment arrangement that averted the need for a huge one-time outlay to settle the PWC bill. Id.

         Following remand from the Court of Appeals in 2001, affirming Judge Lamberth's ruling that the government had breached its trust duties, this Court maintained jurisdiction to oversee the government's efforts to bring itself into compliance with its trust obligations. During this time, several collateral matters arose and were litigated. In the proceedings that culminated in what is known as the “Contempt II” trial, the Court held the Secretary and Deputy Secretary of the Interior in civil contempt. Cobell v. Norton, 226 F.Supp.2d 1, 1 (D.D.C. 2002); 4/20 A.M. Tr. 46:17- 47:8. During the two-month Contempt II trial, Brown sat at counsel's table and assisted Gingold and the other class counsel, including Levitas and Keith Harper. 4/20 A.M. Tr. 47:9-22. Although he helped prepare some witnesses for the trial, he did not actually examine any witnesses at trial. Id. The Contempt II ruling was ultimately reversed on appeal. Id. 48:22-49:11; Cobell v. Norton, 334 F.3d 1128, 1150 (D.C. Cir. 2003).

         At the conclusion of the Contempt II trial, the Court scheduled another trial, later termed the “Phase 1.5” trial, to decide what further injunctive relief should be awarded to ensure that the government was moving expeditiously to reform its trust practices. Id. 51:16-25. The four-month Phase 1.5 trial occurred in mid-2003. Id. 52:5-6. Brown participated, along with Gingold, Levitas, and Harper. Id. 53:22-54:4. In preparation for that trial, Brown aided in relevant discovery practice and defended two of the named class representatives in deposition. Id. Unlike the previous trial, Brown examined witnesses. Id. 52:9-53:12. He also assisted the team in preparing proposed findings of fact and conclusions of law. Id. 54:8-13.

         As a result of the trial, Judge Lamberth issued a structural injunction against the Department of the Interior mandating several specific actions to bring the Department into compliance with its trust duties. Cobell v. Norton, 283 F.Supp.2d 66, 287-95 (D.D.C. 2003). The Court of Appeals reversed the entry of the structural injunction in 2004 based on limiting language in a congressional appropriations act enacted in November 2003, known as the “Midnight Rider.” Co-bell v. Norton, 392 F.3d 461, 478 (D.C. Cir. 2004). When the Midnight Rider expired by its own terms in late 2004, Judge Lamberth reissued his structural injunction without modification or further hearing. Cobell v. Norton, 357 F.Supp.2d 298, 302-07 (D.D.C. 2005). The Court of Appeals again vacated the injunction in late 2005 and began to limit the scope of the accounting the government was required to provide. Cobell v. Norton, 428 F.3d 1070, 1078-79 (D.C. Cir. 2005).

         C. Alleged Problems with Brown and His Work

         Plaintiffs allege that, during the period following the Court of Appeals' 2001 ruling, Brown's performance “began to create problems.” Cobell F&C at 8 ¶ 24. Brown disagrees, alleging that he adequately performed all duties assigned to him. The parties presented voluminous testimony and evidence on these alleged problems.

         1. Brown's Work with the Special Master

         In 1999, with the government's consent, Judge Lamberth appointed a special master to oversee the accounting and trust reform process. 4/21 Tr. 147:14-24. Judge Lamberth's appointee, Alan Balaran, was given considerable authority and responsibility to manage this process. Id. 147:25-148:15. Initially, Gingold assigned Brown to represent Plaintiffs before the Special Master. Id. 148:16-149:8. He did so because of Brown's proficiency in litigating discovery and evidentiary matters, many of which arose during proceedings before the Special Master. See 4/21 Tr. 233:17-21, 258:4-6 (noting that Brown was “very good on evidentiary issues”).

         Relations between Brown and the Special Master eventually soured. The Special Master reported to Gingold that, during a meeting with the Department of Justice at the Special Master's office, Brown asked whether the Special Master had “early onset Alzheimer's.” 4/21 Tr. 151:23- 152:24.[5] The Special Master reached out to Gingold to express his displeasure with the remark and intimated that Plaintiffs should not expect favorable results if Brown continued to participate in proceedings before him. Id. 152:25-153:3. The Special Master did not order Brown not to appear before him, but Gingold testified that the Special Master's tone and phrasing stopped just short of such an order. Id. 235:2-23; 4/22 Tr. 82:5-83:3. Gingold determined that Brown could no longer work with the Special Master and resumed those duties himself. 4/21 Tr. 153:4-10.

         In another instance, Brown assisted in drafting a brief in support of a motion for attorney's fees made to the Special Master. In one of the brief's footnotes, Brown included a picture of a crying fish. 4/21 Tr. 57:24-58:6. This image was intended to lampoon the government for its complaints that class counsel's fees were excessive. See Id. 59:1-60:1. Gingold told Brown to remove the picture before filing the brief, but Brown insisted that it be included. Id. 153:11-154:9. Brown counters that Gingold “specifically asked it to be left in.” Id. 58:7-8. The image was left in. See Cobell Ex. 20 at 37. Gingold testified that the Special Master became quite upset upon seeing the image. 4/21 Tr. 153:11-154:9. In his decision on the motion for fees, the Special Master noted the presence of a “fish shedding a tear” in Plaintiffs' brief. Cobell Ex. 20 at 37. He ultimately deducted 75% of all the time spent preparing the brief. Id.

         2. Findings and Conclusions for the Phase 1.5 Trial

         Gingold testified that Brown's work on the Phase 1.5 trial did not pass muster. 4/21 Tr. 163:16-165:5. During the trial, Judge Lamberth informed the parties that he would request findings and fact and conclusions of law to aid him in drafting his decision. Gingold, Brown, and the rest of the team split up the hard task of combing through the evidence presented at trial to formulate the proposed findings. 4/20 A.M. Tr. 121:19-122:13. Gingold asserted that he found Brown's work on the findings to be subpar. 4/21 Tr. 163:16-165:5. First, Brown decided to use his own formatting style which did not blend easily with that used by the rest of the attorneys. Id. Specifically, Brown cited evidence for each finding of fact in footnotes, rather than in endnotes as the rest of the team had done. 4/20 A.M. Tr. 122:3-123:3. Second, Gingold felt that Brown did not consistently cite the best support for each proposed finding. 4/21 Tr. 164:10-165:5. Gingold perceived it as Brown's lack of judgment as to which evidence best supported the proposed findings and conclusions. Id.[6] In his frustration, Gingold sent out what Brown characterized as an “apoplectic” memo criticizing Brown's work. 4/20 A.M. Tr. 123:2-12. Brown defended his formatting decisions, arguing that the team's decision to cite evidence in endnotes rather than footnotes made the task of revising draft versions of the document too difficult. Id. 122:3-123:3.

         3. Brown's Relationships within the Litigation Team

         Gingold also testified as to Brown's inability to get along with other members of the litigation team. He claimed that, while “some people were extremely cooperative and easy to work with, others weren't.” 4/21 Tr. 141:13-20. He called Brown “the extreme outlier” on the uncooperative end of the spectrum and stated that “Mark's conduct was beyond the norm.” Id. 142:2- 5. Gingold testified that he became frustrated when Brown would fight with him over even minute changes Gingold requested in Brown's work. Id. 139:23-140:1. To Gingold, working with Brown was onerous because everything became a debate. Id. 142:6-14. While he admitted that Brown was not always wrong in these situations, Gingold maintained that, whatever the merits of Brown's position, Gingold simply did not have time to argue with Brown about every issue. Id. 164:23- 165:5. Instead, it appears that Gingold simply wanted Brown to comply with his orders as lead class counsel. Gingold added to this entire discussion the caveat that he did not believe it was appropriate to single out Brown's behavior, given the high-stress environment in which all class counsel toiled for many years on end. Id. 136:23-137:9.

         Brown defended himself in cross-examination regarding working with Gingold, claiming that, although Gingold was a “creative” lawyer, he had significant weaknesses. Not the least of these, in Brown's view, was his overly aggressive language in briefing and obsessive focus on obtaining sanctions against the government lawyers. See 4/20 P.M. Tr. 222:18-225:5. Smith, a Kilpatrick Stockton attorney who entered the case in late 2004 and still represents Plaintiffs today, admitted that Gingold was “a true workaholic” who demanded the same dedication from his fellow lawyers and would not hesitate to point out if he believed that co-counsel was “lapsing in [his] attention to the case.” 4/22 Tr. 126:11-22. Smith further testified that Gingold “could be difficult to work with” at times. Id. 171:5-11. Dorris, another Kilpatrick Stockton lawyer who joined the team at the same time as Smith, stated that Gingold was “brilliant” and “the hardest-working person I've ever worked with.” 5/25 Tr. 32:16-33:10. Dorris also conceded, like Smith, that he was confident that he had heard a Kilpatrick Stockton lawyer complain about working with Gingold at times, although he could recall no specific instances of such a complaint. Id. 162:1-11.

         If Brown's relationship with Gingold was strained, his relationship with Geoffrey Rempel was toxic. 4/20 P.M. Tr. 226:2-16 (Brown describing Rempel's behavior toward him as “hostile and odd”). Rempel, an accountant, worked as a sort of manager on the team. See 4/20 A.M. Tr. 62:19-63:5. Among other duties, Rempel coordinated all the teams of expert witnesses who assisted Plaintiffs' counsel and helped calculate settlement distributions. Smith testified that Rempel could be direct and “intense” in his manner. 4/22 Tr. 126:23-127:14; see also 5/25 Tr. 162:12-22 (Dorris testifying that Kilpatrick Stockton attorneys and staff had at times complained about working with Rempel). Nevertheless, Smith stated that Rempel was brilliant in his work. 4/22 Tr. 126:23-127:14. Gingold, in his testimony, claimed that he received no complaints from Kilpatrick Stockton attorneys about Rempel. Id. 47:2-24. Brown stated only that he had “issues” with Rempel, 4/20 A.M. Tr. 59:5-11, but Gingold testified that the two were usually “at war, ” 4/21 Tr. 140:1-3. Gingold stated that Rempel claimed that Brown treated him as a mere clerk, asking him to do menial tasks like mailing Brown's letters. 4/21 Tr. 140:9-20. Brown complained that Rempel would not give him his faxes. 4/20 A.M. Tr. 59:5-60:2. Gingold instructed the two to put aside their disagreements and work together for the good of their clients, but it is fairly clear from the record that they never worked well together. 4/21 Tr. 140:1-8.

         Brown produced Ruth Hargrow, a legal secretary at NARF during the time in question, and Neill Freeman, an expert retained by the Cobell team, to testify on his behalf about the interpersonal difficulties on the team. Hargrow testified that NARF attorneys found Gingold difficult to work with and called him a “snake.” 4/21 Tr. 104:13-17. She also stated that Rempel was “condescending, rude, and disrespectful, ” and that he would often yell at Brown and NARF attorneys. Id. 101:3-102:6. Brown, by contrast, was, in Hargrow's opinion, respectful, pleasant, and professional. Id. 99:3-100:9. As an expert, Freeman worked principally with Rempel. Id. 115:6-116:6. Freeman testified that Rempel was very difficult to work with because he was “arrogant, ” “demanding, ” “combative, ” and “insulting.” Id. 117:23-119:7. Freeman described Brown as “respectful” based on their limited interactions. Id. 116:4-7, 119:17-18.

         Keith Harper, an attorney for NARF and one of the primary members of Plaintiffs' litigation team, submitted an affidavit in opposition to Brown's 2011 petition. In it, Harper averred that he generally enjoyed a cordial and professional working relationship with Brown. Affidavit of Keith Harper [Dkt. 4204-1] ¶ 3. Harper noted, however, that “Brown would not always comply with the decision made by the litigation team after long deliberations. At times, he would continue an approach inconsistent with the agreed one and the interest of the plaintiff class.” Id. Harper maintained that, despite these professional differences, he and Brown worked “cooperatively for several years.” Id.

         In or around 2003, when the Brown-Rempel conflict became unmanageable, Gingold asked Harper to work principally with Brown. 4/21 Tr. 154:10-22. Harper agreed to take on that role. Harper averred that “over time, that role became untenable because Mr. Brown and I had differences of opinion and he would too often not follow direction. It became easier for me to just assume tasks he was performing rather than constantly monitoring his work product.” Affidavit of Keith Harper [Dkt. 4204-1] ¶ 4. Brown testified that Gingold remained “fickle” even after this reassignment, however, sometimes giving Brown projects when deadlines loomed. 4/20 P.M. Tr. 268:18-25. Brown viewed it as a circular exercise in which he was trying to ameliorate interpersonal difficulties while Gingold would ignore the problem until he forgot about it entirely. See id.

         In his own testimony, Brown highlighted his good relations with the Kilpatrick Stockton lawyers on the team. He described Mark Levy, a Kilpatrick Stockton appellate lawyer, as “brilliant” and stated that the two had “a very good working relationship.” 4/20 A.M. Tr. 94:23-95:2. Similarly, he testified that he liked the other Kilpatrick Stockton attorneys, that he “had no problems with any of them, ” and that he “[thought] they were gentlemen [and they] viewed [him] the same way.” Id. 95:3-15; id. 230:23-231:2. Dorris corroborated Brown's statements, testifying that while Brown had a “fractured” relationship with others on the team, he and Brown “always had a very pleasant relationship.” 5/25 Tr. 34:10-15.

         Additionally, Brown pointed to several distinct instances in which a member of the team complimented his work. For instance, in 2005 Levy called one of Brown's research memoranda “excellent.” 4/20 A.M. Tr. 91:19-93:3. Another Kilpatrick Stockton partner, David Zachs, deemed one of Brown's draft motions “good work.” Id. 99:22-100:17.

         D. Brown's Workload Decrease and 2005 Partial Suspension

         Because of the deteriorating relationships between Brown and other members of the Cobell team, he began to receive fewer and fewer assignments. This is reflected in his timesheets, which show a precipitous drop in the hours Brown expended on the case in 2003 and 2004. See Brown Ex. 3 at 307-452; 4/21 Tr. 25:24-26:11. According to his timesheet tables, Brown logged 1318.929 hours in 2004, 878.023 hours in the first half of 2005, and 122.393 hours in the second half of 2005. Brown Ex. 3 at 400-80. See also 4/21 Tr. 26:12-27:12; Brown Ex. 4 (Brown's subtotals by year, listing 1320.75 as the 2004 total, and 590 as the total for all of 2005).

         In fall 2003, Gingold's displeasure with Brown became more apparent. On October 6, 2003, Gingold sent an email to the entire team except Brown, instructing that Brown's name be omitted from all signature blocks on all filings unless he “drafted or otherwise contributed to [the filing] materially.” Brown Ex. 7. Around the same time, Brown claimed, Gingold began to assign him more “back room” type work. This included drafting research memoranda, motions to compel discovery, and other discovery motions that could be completed without much interaction with other team members. 4/21 Tr. 27:5-12. Gingold perceived Brown to be less involved in the case during this period, testifying that he saw Brown less and less at the office from November 2004 until the start of the IT Security trial in May 2005. Id. 155:16-157:11, 245:9-17 (referring to Brown's “prolonged absence” from November 2004 until May 2005). Gingold denied any aware- ness of work performed by Brown during this period. Id. 246:4-17. Harper echoed this observation. Affidavit of Keith Harper [Dkt. 4204-1] ¶ 5 (“Brown began to disengage from the case more and more, especially in 2005 . . . [and] I saw very little of him in the office or court proceedings.”)

         Brown found these denials specious, since it was Gingold who “cut [him] out of the projects.” 4/21 Tr. 29:9-20. Brown maintained that he continued to work a few feet away from Gingold in their office space. 4/21 Tr. 29:9-20. Brown believed he continued to perform meaningful work during the 2003-2005 period - all at Gingold's or Harper's behest - pointing to various assignments he completed, including the statutory retroactivity research memorandum, the Erwin fee petition, a motion related to the Contempt II trial, a motion requesting the remedy of disgorgement against the government, a draft amended complaint, and other motions and research projects. 4/20 A.M. Tr. 66:12-106:8; 4/21 Tr. 250:2-258:6; 4/22 Tr. 15:20-36:22. Despite souring relations on the team and a decreasing workload, Brown was still working on projects in the Cobell case, including preparation for the IT Security trial, described below. See 4/20 A.M. Tr. 105:2-20.

         Toward the end of 2004, at Elouise Cobell's request, the Kilpatrick Stockton firm ramped up its involvement in the case. See 4/20 A.M. Tr. 100:19-102:6; 4/22 Tr. 20:1-11. Kilpatrick Stockton had previously been involved primarily with appellate matters. 4/20 A.M. Tr. 100:19- 102:6. In late 2004, it added two partners, Smith and Dorris, to work on the trial team in anticipation of an increasing workload. Id.; 4/22 Tr. 104:24-105:8; id. 200:1-11. Kilpatrick Stockton also assigned paralegals and associates to the team. 4/22 Tr. 153:5-14. Finally, Kilpatrick Stockton moved the entire Cobell team to its Washington office. 4/20 A.M. Tr. 65:16-18.

         A defining point during this period was the “IT Security” trial. On April 25, 2005, after the Court of Appeals vacated the structural injunction, Judge Lamberth ordered that a trial would be held on the security of the Department of the Interior's computer systems and the state of their recordkeeping. See Apr. 25, 2005 Order [Dkt. 2946]; 4/22 Tr. 106:2-21. Judge Lamberth ordered that the trial would begin approximately two weeks later, on May 2, 2005. Id.

         Smith testified that, although Brown attended the early days of the IT Security trial and sat at counsel's table, he made no meaningful contribution to the trial effort and did not examine any witnesses. 4/22 Tr. 112:4-113:1. Brown himself admitted that he played a “supporting role” for the trial, drafting pocket briefs and doing other needed research. 4/20 A.M. Tr. 106:13-107:3. In Smith's view, Brown was unable to participate because he had not reviewed the records needed to examine the witnesses. 4/22 Tr. 112:18-22. Brown attended debriefing sessions after each day in trial, but Smith attested that Brown made no substantive contribution. Id. 111:20-112:12. Dorris testified that Brown appeared “disengaged” from the trial and “did not have his heart” in the task. Id. 203:12-204:14.

         The beginning of the end for Brown's work on Cobell took place during the middle of the trial. On May 25, 2005, the government informed Judge Lamberth that it would take months to produce its emails and electronic records, which were held by a third-party vendor, Zantaz. 4/20 A.M. Tr. 110:5-112:1. Plaintiffs responded that they needed those documents immediately to examine witnesses during the trial. Id.; 4/21 Tr. 163:5-15; 4/22 Tr. 113:6-18. Gingold testified that the production was “critical” because it would shed light on the government's destruction of records related to the case. 4/21 Tr. 161:17-163:4.

         Judge Lamberth instructed Smith to confer with John Siemietowski from the Department of the Interior and representatives from Zantaz to reach a resolution. 4/20 A.M. Tr. 111:23- 112:14; 4/22 Tr. 115:1-15. Brown asked to participate in the meeting and Smith initially seemed happy to have his help and the knowledge he had gleaned from his work with the Special Master. 4/20 A.M. Tr. 112:7-14; 4/22 Tr. 116:6-17. They left the courthouse and met at Kilpatrick Stockton's office. 4/20 A.M. Tr. 112:21-113:12; 4/22 Tr. 115:22-116:17.

         According to Smith, Brown's participation in the meet-and-confer with the government derailed efforts to resolve the production problem. 4/22 Tr. 116:18-117:14. Smith observed that Brown focused too much on berating the government for not producing the records sooner, while Smith believed that it was more appropriate to move past that issue and focus on how they could be produced most quickly. Id. Smith testified that Brown was “caustic” in his manner and that his behavior was inappropriate, particularly in light of Judge Lamberth's order that Smith lead the meeting on Plaintiffs' side. Id. Smith noted that Brown had not been participating in the prior weeks of negotiations and that Smith did not, as a result, expect Brown to take an active role in the discussion. Id. 118:3-12. Smith maintained this view on cross-examination, testifying that, although he agreed with Brown's conclusion that the emails should have been produced earlier, he did not think his criticism of Brown's approach constituted “Monday morning quarterbacking.” Id. 161:9-19. Rather, Brown's approach “was inappropriate in that context at that time when you had a judge asking me to handle something.” Id. 161:9-19. Brown himself testified that the meet-and-confer was “perfectly cordial” and resulted in “some progress” being made. 4/20 A.M. Tr. 113:2-12.

         Thereafter, Smith, Brown, and the others returned to the courtroom to report their failure to resolve fully their disputes. 4/22 Tr. 119:7-120:12. Judge Lamberth then ordered Smith and Siemietowski to again confer with Zantaz to resolve the problem. 4/20 A.M. Tr. 113:9-13. But Smith was on deck to examine the next witness at the trial, so Judge Lamberth allowed Harper to handle the second meeting. Id.; 4/22 Tr. 120:5-12. As Harper headed for the door, Brown pulled him aside to ask if he should attend. 4/20 A.M. Tr. 113:19-21. Harper doubted that Brown would be of value, but Brown prevailed upon him. Id. 113:19-114:1. As Harper, Brown, and Rempel (also present at the second session, at Harper's request) were walking to the conference room, Rempel told Brown that Gingold did not want Brown to participate in the meeting. Id. 114:2-9. It does not appear that Brown ever heard this from Gingold directly. See Id. Brown asked why, and Rempel replied, “because you did such a crappy job on the Zantaz hearing, ” which had occurred nearly two years prior. Id. 114:10-12. Brown termed this characterization “ridiculous” and ignored Rempel's instruction. Id. Brown testified that Harper, who overheard this exchange, did no more than shake his head at “another example . . . about how dysfunctional this team is.” Id. 125:1-9. Harper did not second Rempel's request that Brown not attend the meeting. Id. 125:1-17.

         Harper did aver later that Brown's participation stymied efforts to reach a resolution because he “was not sufficiently familiar with the record.” Affidavit of Keith Harper [Dkt. 4204-1] ¶ 6. At some point, Harper asked Brown not to participate further in the second meeting. Id. Brown claimed he said “not a word” at the second meeting. 4/20 A.M. Tr. 125:10-21.

         Gingold testified that, approximately twenty-five minutes from the time the lawyers left to confer about the Zantaz issue, Harper returned the courtroom to tell Gingold, “You've got to get Mark out of the room.” 4/21 Tr. 137:11-138:11. Harper elaborated, “Mark is ruining the negotiation. He doesn't know what he's talking about. He hasn't been around. And you got to get him out or we're going to have a disaster on our hands.” Id. 138:12-16. Gingold instructed Brown, standing nearby, not to return to the conference room. Id. 138:17-20. Brown insisted that he would return. Id. 138:21-139:1. Incensed, Gingold directed Brown to leave the courtroom, which he did. Id. 138:25-139:2. Later that afternoon, the parties successfully resolved most of the Zantaz issues. See 4/22 Tr. 53:20-54:6, 121:7-122:1.

         Gingold testified that it was unusual for Harper, who had a “very easygoing personality, ” to say such things about co-counsel. 4/21 Tr. 139:2-11. Harper had been willing to work with Brown in the past. Id. After the trial concluded for the day, Harper approached Gingold at the office and told him, “I will not work with Mark Brown anymore, period.” Id. 139:12-15; Affidavit of Keith Harper [Dkt. 4204-1] ¶ 6 (“As a result of this incident and the cumulative effect of working with Mr. Brown over time, I expressed disinterest in continuing to monitor his work for this case.”).[7]

         After leaving court on May 25, 2005, and presumably after the above conversation with Harper, Gingold sent the following email to Brown:

Once again you have decided to ignore my direct instructions. This is the last time. If you do so again, I will request that Elouise terminate your engagement. Specifically, without my express prior approval, henceforth, you shall not participate in any negotiations or discussions with defendants, their counsel, or their contractors. Your performance this afternoon is inexcusable. Moreover, with respect to the ongoing IT evidentiary hearing, you are not expected to cross-examine witnesses or make oral arguments. Further based upon the concerns that I previously had raised with you concerning your performance in the preparation of the trial 1.5 proposed findings and conclusions, you will not be relied on in that regard in this evidentiary hearing. To the extent you are requested to prepare briefs or memoranda, such work will be done only at the request of Keith - and only if he chooses to do so. Otherwise, your participation in this litigation is suspended. If you have questions or disagree with anything in this regard, you may take them up with Elouise directly. Following the conclusion of this hearing, we will reevaluate the nature and scope of your continued participation, if any, in this litigation.
I expect you to follow these instructions.

         Brown Ex. 14 at 1-2. The Court questioned Brown as to what Gingold might have meant by his “[o]nce again” admonition, but Brown testified that he did not know of any instance in which he had previously ignored Gingold's instructions. 4/20 A.M. Tr. 120:17-121:8. He claimed that “[t]he only blowup we previously had was over the formatting of the findings of fact in Trial 1.5.” Id. 120:25-121:2.

         As the email itself indicates and as Gingold confirmed at the hearing, Gingold did not speak with Cobell prior to sending this “suspension” email. 4/22 Tr. 39:17-40:21. Instead, he stated that he talked the matter over with Harper and Rempel and decided to suspend Brown pursuant to his authority as lead class counsel. Id. In fact, Gingold testified that he “had not raised with [Cobell] any issues [he] was having with Mr. Brown” prior to May 25, 2005. Id. 41:22-42:14.

         Brown responded to Gingold's email that evening, stating

As you may recall, at the lunch break I mentioned to you that I had reviewed the August 2002 Zantaz transcript and prepared a line of questioning for the Zantaz witness - to which you responded “Good.” Your response gave me no suggestion that you did not want me to participate in the Zantaz matter, so I accompanied David Smith to Kilpatrick Stockton for that conference call over the lunch hour.
To the best of my knowledge, in participating in the conference with Siemietowski and Keith, I believed I was following your instructions to take direction from Keith. As Keith got up from counsel table to go and confer, I asked him if he wanted me to attend. He asked if I had been a party to the telephone conference earlier in the day with the Zantaz California personnel, and I said I had. He then asked me to attend.
As, Keith, Geoffrey and I walked to the conference room, Geoffrey in his usual insulting manner suggested that I stay behind because in his mind I had supposedly done a “crappy” job asking questions at the Zantaz briefing more than two years ago. Naturally, this was the first I had heard of any complaint about my performance with respect to such briefing. Indeed, they did not even recall that I had attended [sic] Keith heard the entire exchange and, despite the three of us caucusing for a few minutes before Siemietowski and Carol Wolf came in, I had no indication from Keith that he did not want me present. As I have indicated in the past, I will be happy to work with Keith. Kilpatrick Stockton asked me several days ago to work on the appellate brief. Are you prohibiting me form do [sic] that - or should I discuss it with Keith?

         Brown Ex. 14 at 1. Brown clarified at the hearing that when he wrote, “[a]s I have indicated in the past, I will be happy to work with Keith, ” he was referring to “frictions” between himself and Rempel in mid-2004 that led Gingold to reassign oversight of Brown to Harper. 4/20 P.M. Tr. 265:23-267:8. Gingold replied:

My letter stands. If KS wants your assistance on appellate matters, its entirely between you and KS. I take no position in that regard. Nor did I take any position on, or discuss your involvement in, appellate issues in my email to you of this date. My email is solely related to trial court matters [sic] If you wish to discuss the scope of your continuing engagement in this litigation, you should have them with Keith, KS, and/or Elouise. I'm sure that you have a better working relationship with them because it is clear that ours is no longer tenable. I have not raised this matter with Elouise. You are certainly free to do so if you wish and you and she are free to work out whatever you both think is appropriate.

         Brown Ex. 14 at 3.

         Later that evening, after the email exchange with Gingold, Brown sent an email to Harper in which he recounted a voicemail message Siemietowski had left for him that evening regarding the next steps to take in retrieving the Zantaz records. Brown Ex. 60. Brown proffers the email as evidence that he did not derail the Zantaz meet-and-confer efforts, suggesting that the government lawyer chose to call Brown, rather than Rempel or Harper, to tie up loose ends related to Zantaz. 4/20 P.M. Tr. 131:1-133:15.

         E. Brown's Post-Suspension Work and Return to California

         After the heated exchange on May 25, 2005, Brown nevertheless continued to work on the case, largely independently of the rest of the Cobell team. See 4/20 P.M. Tr. 133:21-134:9. Nevertheless, Brown testified that it “became harder for [him] to find work” after the May 2005 row with Gingold. 4/20 A.M. Tr. 120:13-16. Though Gingold instructed him not to, Brown spent - and seeks compensation for - substantial time reviewing transcripts of the IT Security trial and preparing proposed findings and conclusions for the trial before and after May 25, 2005. See Brown Ex. 3; 4/21 Tr. 9:5-11:9, 165:22-166:25 (Gingold testifying Brown's conduct was contrary to what he instructed). He never told anybody that he was preparing the findings and conclusions. 4/20 A.M Tr. 109:10-110:5; 4/21 Tr. 13:23-14:3. His work was made unnecessary when Judge Lamberth informed the parties toward the end of the trial that no proposed findings and conclusions would be required. 4/21 Tr. 14:16-20. When Brown later sent his draft findings and conclusions to Austin, Austin expressed surprise in light of Judge Lamberth's directive. Id. 14:4-15; Affidavit of Bill Austin [Dkt. 4202-2] ¶ 9. Brown did not know about Judge Lamberth's announcement, since he was not at the trial. 4/21 Tr. 14:4-15; 4/22 Tr. 166:13-167:1.

         Brown claims he was only doing his job of keeping abreast of the case. 4/20 A.M. Tr. 109:10-110:9; 4/21 Tr. 11:1-9. He further asserted that he provided value to the team by uploading the daily transcripts to make them easily accessible to co-counsel. 4/20 A.M. Tr. 109:10- 110:9; 4/21 Tr. 15:10-16:2. But Brown only uploaded the transcripts into his own database, housed on his computer, generally inaccessible to his co-counsel. 4/21 Tr. 16:3-17:8, 21:12-17; 4/22 Tr. 19:14-20. He claimed he would provide information from his database to Gingold, counsel for NARF, and others at their request, but provided no evidence of any such request - instead, he stated that his co-counsel had done so in the past and that he assumed they would do so again. See 4/21 Tr. 16:3-17:8, 21:12-17. Dorris testified that Kilpatrick Stockton had its own database for transcripts and never knew about or used Brown's database. 4/22 Tr. 19:21-20:18. Indeed, Brown's computer returned with him permanently to California in January 2006, removing any possibility of its access by other team members. 4/21 Tr. 17:21-18:15, 21:3-11.

         In the wake of the trial, Brown's participation in the litigation diminished further. The parties disagreed sharply as to the cause and extent of diminution. At the hearing, Brown's counsel tried to elicit testimony from Gingold that his May 25, 2005 emails were calculated to prevent Brown from being able to work on the case. For instance, Gingold conceded that he directed Brown to seek work from Harper despite knowing that Harper had that day told Gingold that he would not work with Brown any longer. 4/22 Tr. 58:21-59:17. Nevertheless, Gingold claimed that he expected Brown to be able to get work from Kilpatrick Stockton given the huge appellate workload facing the team at that time. Id. 64:1-65:3. Gingold maintained that the suspension was not intended to “deep six” Brown from the Cobell team entirely, but to “minimize whatever the personality conflicts were occurring in the trial court.” Id. 65:1-3.

         Gingold testified that he gave Brown no more work after May 2005. See 4/22 Tr. 65:4- 66:1. Austin averred that he learned from Gingold about the interpersonal clashes during the IT Security trial and he agreed to work with Brown. Affidavit of Bill Austin [Dkt. 4202-1] ¶¶ 6-8. Gingold told Austin that he had instructed Brown to contact Austin to request assignments. Id. ¶ 8. Gingold testified that he heard from Austin that he had work to give but that “Mark never called him.” 4/22 Tr. 66:9-25. Similarly, Dorris testified that Austin contacted him to get his go-ahead to give Brown some appellate work. Id. 211:6-19. Smith testified that he never saw Brown at the office after May 2005, save one appearance around the time of a September 2005 oral argument in the Court of Appeals. Id. 173:15-24; see also Id. 205:3-21 (Dorris testifying that he did not see Brown again after his May 2005 partial suspension until the mid-September 2005 oral argument, while admitting that he split that period of time between Washington and Atlanta). Smith admitted, with noticeable reservation, that Brown's suspension might have lead Brown not to come in to the office. Id. 173:25-174:14.

         At the hearing, Brown presented evidence showing that he performed some work following the IT Security trial and his partial suspension. For instance, on August 25, 2005, he provided comments on an appellate brief drafted by Austin. 4/20 P.M. Tr. 135:2-24; Brown Ex. 16. He did not draft the brief, nor was he specifically consulted for his commentary. See 4/20 P.M. Tr. 135:9-24. Instead, he offered his comments sua sponte in conformity with the normal practice on the team, which was to circulate drafts to all attorneys for comment and edits. Id. Brown admitted that this type of commentary typified most of his work at the time and that he “wasn't receiving actual projects.” Id. 135:18-21, 141:24-142:8 (Brown testifying that he did not receive assignments from anyone during this period save “an assignment or two from Mr. Levy”); see also Brown Ex. 17 (August 30, 2005 email containing comments on draft brief produced by Austin); Brown Ex. 19 (October 11, 2005 email containing comments on draft letter written by Austin); 4/20 P.M. Tr. 257:25-258:9 (Brown testifying that his comments on Austin's work were not “projects” but mere responses to “invitations to all members of the team” to edit and comment); 4/21 Tr. 29:21-30:11 (same). Nevertheless, at this time, Brown maintained his Washington residence and his office in Kilpatrick Stockton's Washington offices. 4/20 P.M. Tr. 136:8-17.

         In mid-September 2005, Brown offered to help Austin prepare for an oral argument before the Court of Appeals. 4/20 P.M. Tr. 137:18-138:10; Brown Ex. 18. Austin never took him up on the offer, and Austin performed so poorly at the argument that, according to Brown, Gingold “put [him] out to pasture.” 4/20 P.M. Tr. 138:11-141:1; but see 4/22 Tr. 207:4-208:1 (Dorris testifying that it “wasn't Bill Austin's finest argument” but that “he did admirably under the circumstances”). Brown entreated Austin for work in August 2005, asking him to “keep him in mind” for any substantive projects that might arise. 4/20 P.M. Tr. 142:9-143:7. But again, no work came, except some small projects from Mark Levy, a Kilpatrick Stockton appellate lawyer. Id. Brown never followed up with additional requests for work. 4/21 Tr. 30:18-31:10. Brown stated at the hearing that he didn't receive projects from Austin because, following Austin's argument before the Court of Appeals, Gingold “sent [Austin] to Siberia.” Id. 31:6-14; but see 4/22 Tr. 208:2-209:1 (Dorris testifying that Austin was not “exiled to Siberia” but continued to work on the case for years). Brown considered that following up with Austin on his request for work would be construed as “nagging.” 4/20 P.M. Tr. 31:25-32:10.

         Dorris testified that, after November 2005, Plaintiffs faced a “dark” period. That month, the Court of Appeals vacated the structural injunction for the second time and limited the scope of the accounting the government had to perform. 4/22 Tr. 209:17-25; Cobell v. Norton, 428 F.3d 1070, 1077-78 (D.C. Cir. 2005); see also 4/21 Tr. 76:4-18 (Brown testifying that the Court of Appeals' November 2005 order “had some positive aspects to it, it had some negative aspects to it”). Also at this time, the Court of Appeals vacated the disconnect order issued following the IT Security trial. 4/22 Tr. 210:21-211:3; Cobell v. Kempthorne, 455 F.3d 301, 317 (D.C. Cir. 2006).

         After the November 2005 decision from the D.C. Circuit, Brown sought no more assignments from Kilpatrick Stockton, save one assignment he completed for Levy during that month. 4/21 Tr. 32:11-34:19. According to Dorris, although Kilpatrick Stockton lawyers made no effort in late 2005 or in 2006 to contact Brown or give him appellate work, “[their] perspective was that if Mark wanted work, he would come to us and seek that work out.” 4/22 211:20-212:2. However, Dorris admitted that he was not the “point person” for assigning work to Brown and knew only that no colleagues had reported to him that Brown had sought out work. Id. 212:1-15. Dorris testified that he gave Brown no work nor instructed any other lawyer at Kilpatrick Stockton to do so. 5/25 Tr. 160:19-161:6. Brown's position is that he turned down no work assigned to him and that, contrary to the view of Plaintiff, it was the other members of the team who refused to give him work. According to Brown, he was “frozen out” by the other members of the Cobell team after his May 2005 suspension.

         The next key juncture in Brown's engagement in Cobell came in mid-January 2006. At that time, he moved back to California. 4/20 P.M. Tr. 9-18. He did not tell anyone he was leaving. 4/21 Tr. 35:20-39:19, 74:21-75:10; 4/22 Tr. 212:17-213:6 (Dorris testifying that no Kilpatrick Stockton lawyer knew where Brown had gone, only that “he seemed to have just left”); Affidavit of Bill Austin [Dkt. 4202-2] ¶ 10. Brown stated that the last time he spoke with Gingold was probably the “funereal” lunch following Austin's argument before the D.C. Circuit in September 2005. 4/20 P.M. Tr. 144:2-145:3. Brown admitted that he had no final conversation with Gingold before he departed. Id. 145:14-23.

         Brown explained his departure as being consistent with his usual practice and suggested that he could be reached for work in California. Id. Further, in 2001, Gingold had mentioned to Brown that he should move back to California and work from there. Id. At the time Brown left, the Cobell class was still represented by Gingold, Harper, NARF attorneys, and dozens of lawyers from Kilpatrick Stockton.

         After his departure, Brown performed almost no additional work on the Cobell case, although he repeatedly claimed in his testimony that he remained ready and willing to accept new assignments. See 4/20 P.M. Tr. 150:20-151:1; 4/21 Tr. 35:20-23. Brown felt he remained “on call” after his return to California. Id. He stated that, although he was given no new work, he kept up-to-date on the case from California by monitoring the Court's docket. 4/20 P.M. Tr. 145:5-9. However, he spent no time on the case in 2006, and in 2007 he only expended eighteen hours reviewing an attorney's fee petition that included some of his time. See Brown Ex. 3 at 481.

         Brown continued to pay rent to Kilpatrick Stockton for his subleased space in its Washington office until sometime in 2007, when Dorris called him to ask if the firm could use the space. 4/20 P.M. Tr. 185:14-186:3; 4/22 Tr. 213:7-214:12. During that conversation, Brown asked Dor-ris whether he would receive any more assignments, and Dorris stated that it was unlikely. Id. Brown agreed to give up the space. 4/20 P.M. Tr. 185:14-186:3. At the hearing, he testified that, since his return to California, he had reentered private practice part time. Id. 199:10-20, 234:9- 13.

         F. Brown's Termination

         Gingold testified that he heard nothing from Brown for over fifteen months after his January 2006 departure. 4/21 Tr. 170:16-20; see also Brown Ex. 20. Brown broke the silence late in April 2007. See 4/21 Tr. 75:11-18. After the Court of Appeals vacated the injunction resulting from the IT Security trial and reversed a class communication order, the case was reassigned to Judge Robertson. Cobell v. Kempthorne, 455 F.3d 301, 317 (D.C. Cir. 2006); Cobell v. Kempthorne, 455 F.3d 317, 335-36 (D.C. Cir. 2006). In April 2007, Judge Robertson granted a petition from Plaintiffs for payment of attorney's fees related to the “GAO” and “Erwin” sanctions. Apr. 20, 2007 Order [Dkt. 3312]. Judge Robertson then scheduled a trial for October 2007 to determine whether the government continued to be in breach of its accounting obligation. 4/20 P.M. Tr. 147:7-12; Apr. 20, 2007 Order [Dkt. 3312].

         Brown emailed Gingold on April 24, 2007:

Congratulations on obtaining the April 20th order from Robertson. I am prepared to participate in the October trial and its preparations. Let me know how I can help.

         Brown Ex. 20. Brown testified that he sent this offer of assistance because Gingold was “somewhat fickle” and, given the passage of time since the May 2005 quarrel, Gingold might be ready to accept him back into the team. 4/20 P.M. Tr. ...

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