The Center for Class Action Fairness LLC filed its opening brief today in the DC Circuit in Cobell v. Salazar, No. 11-5205. The case, relating to the $3.4 billion government settlement of Indian trust mismanagement claims, raises important issues regarding class members' rights in class action settlements; whether it is permissible to abrogate some class members' individual rights while giving other class members a windfall; whether one can impose a mandatory class upon a wholly monetary settlement by characterizing the monetary relief as "equitable"; the appropriateness of certifying a unitary class involving dozens of different types of claims; the extent to which Congress can abrogate the protections of Rule 23; and whether it is an impermissible conflict of interest for a class representative to request an incentive award of $13 million. It's an important case for delineating the scope of Wal-Mart v. Dukes.
Which raises an interesting issue. The plaintiffs' attorneys, Kilpatrick Townsend, hoping to defend a fee award between $99 and $111 million (some of which will be shared with other attorneys), are now placed in the position of arguing for a narrow construction of Wal-Mart v. Dukes—so narrow as that they will need the D.C. Circuit to essentially find that that precedent has no effect, because plaintiffs cannot possibly win an affirmance consistent with Wal-Mart. Kilpatrick's clients include Adidas, BellSouth, British Petroleum, Chrysler, Delta Air, Dupont, General Electric, Google, Office Depot, Pepsi, and Sony—all of whom would be adversely affected if Kilpatrick Townsend wins this case in the DC Circuit. I've previously complained that Fortune 500 companies are more concerned about political correctness in their law firms than whether those firms are taking litigation positions harmful to their own long-term interests, and this case provides another remarkable example of a BigLaw firm putting its own financial interests ahead of its clients. General counsels should pay much more attention to whom they're giving their business to: they should do more to insist that their outside defense firms are really defense firms that believe in their clients' rights, rather than mercenaries that happen to represent defendants in a particular case.
(CCAF is not affiliated with the Manhattan Institute.)