Thomas F. Hogan, Senior United States District Judge.
Pending before the Court is Plaintiffs' Motion for Reconsideration of Class Representatives' Expense Application [ECF No. 3839]. The motion seeks to have this Court reconsider its June 20, 2011 decision declining to further diminish the common fund benefitting class plaintiffs by granting the Class Representatives' request to recover expenses related to recoverable grants third-party organizations made to the Blackfeet Reservation Development Fund ("BRDF") to finance this lawsuit. Because the pending motion advances arguments and evidence that could have been raised by the plaintiffs before the Court ruled and entered judgment, the motion will be denied.
On January 25, 2011, after reaching a congressionally-approved $3.4 billion settlement with the United States, the plaintiffs in this case filed a petition requesting that the Court grant the Class Representatives — Elouise Cobell, Louise Larose, Thomas Maulson, and Peggy Cleghorn — incentive awards, expenses and costs. See Pls.' Mem. In Supp. of Class Representatives' Pet. for Incentive Awards & Expenses [ECF No. 3679]. With respect to expenses, the plaintiffs argued in the incentive-award petition that the Class Representatives were entitled to reimbursements totaling $10,556,274.59 for litigation-support services provided by the following third-party organizations: the Blackfeet Reservation Development Fund,
Nowhere in the plaintiffs' incentive-award petition or the accompanying exhibits was there any indication that the Class Representatives personally guaranteed grants or loans made by the third-party organizations for the purpose of funding the litigation of this case. To the contrary, the reply brief supporting the plaintiffs' incentive-award petition stated that litigation expenses were paid by Elouise Cobell "and organizations to which Ms. Cobell is indebted, not personally, but solely in her capacity as lead plaintiff in the prosecution of this case." Pls.' Reply to Defs.' Objections to Class Representatives' Pet. for Incentive Awards & Expenses 17 [ECF No. 3706] (emphasis added). Although the reply brief stated that the Blackfeet Reservation Development fund was "heavily obligated to third party foundations," the reply brief otherwise offered no hint that the Class Representatives were personally liable for such or similar obligations. Id. at 22.
On June 20, 2011, the Court held a lengthy fairness hearing to consider whether the settlement agreement proposed by the parties was fair, reasonable and adequate, and to rule on the Class Representatives' petition for incentive awards as well as other pending motions. During the fairness hearing class counsel offered the following arguments in support of the Class Representatives' incentive-award petition:
Pls.' Mot. for Recons. of Class Representatives' Expense Application Ex. 3, Hr'g Tr. 162:22-165:22 (June 20, 2011) [ECF No. 3839-3] (hereinafter cited as "Pls.' Mot. for Recons."). This quotation represents the entirety of class counsels' arguments regarding the plaintiffs' request that the Class Representatives be awarded incentive fees and expenses. At the conclusion of the fairness hearing the Court granted in part the plaintiffs' petition for incentive awards but denied the request to award an additional $10,556,274.59 for expenses incurred by the third-party organizations on the grounds that "[t]here [was] no class representative that [incurred] those out-of-pocket expenses" and there was no authority to support a separate award for those expenses. Id. at 243:4-11. The plaintiffs did not object to the Court's determination that no Class Representative personally incurred the $10,556,274.59 in litigation expenses attributed to third-party organizations identified in the incentive-award petition.
One week after the fairness hearing, the plaintiffs' filed the pending motion, which is styled as a motion for reconsideration. Contrary to the typical motion for reconsideration, which asks a court to take a second look at an issue that was previously raised and ruled upon, the plaintiffs' motion for reconsideration in this case interjected an entirely new argument that was never presented to the Court, namely that the Class Representatives were personally liable for $4,540,622.72 that the Blackfeet Reservation Development Fund owed to
On June 10, 2013, the plaintiffs filed a Notice of Supplemental Information and Correction Regarding Plaintiffs' Motion for Reconsideration of Class Representatives' Expense Application [ECF No. 3956] (the "Notice of Supplemental Information"), which served to "correct the amount of expenses sought in the Motion to Reconsider to the amount of $8,181,748.63 as a result of the $496,393.00 in funds loaned by [the Indian Land Tenure Foundation] to Blackfeet Reservation Development Fund ("BRDF") and used by plaintiffs to pay expenses in the litigation." Notice of Supplemental Info. 1. The Notice of Supplemental Information also attached affidavits from Cris Stainbrook, the President of the Indian Land Tenure Foundation,
Although the plaintiffs filed their motion for reconsideration about a week after the Court issued a ruling from the bench at the conclusion of the public fairness hearing and before the Court issued judgment on August 4, 2011, almost two years later the plaintiffs filed the notice of supplemental information, which amended the motion for reconsideration to add a new claim for expenses relating to the Indian Land Tenure Foundation that was not raised in the original motion. The Court nevertheless will treat the plaintiffs' motion for reconsideration as a timely motion to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.
The entire premise of the plaintiffs' motion for reconsideration is that the plaintiffs "may not have been sufficiently clear that [Elouise] Cobell and, in certain cases, the other named plaintiffs are personally liable for much of" the expenses the Class Representatives sought to recover in their incentive-award petition. Pls.' Mot. for Recons. 1 (emphasis in original). There are two flaws regarding this premise that doom the motion for reconsideration. First and foremost, the plaintiffs were not simply "unclear;" to the contrary, they never raised this argument before the Court issued its ruling, although they had the opportunity to do so both during the briefing of the incentive-award petition and during the presentation of oral arguments at the fairness hearing.
Second, even if the Court were inclined to overlook the delinquency of the argument and proceed to the merits of it, the argument would not survive reconsideration because it is unsubstantiated. The plaintiffs asserted that each of the Class Representatives executed assignments to the Blackfeet Reservation Development Fund according to which the Class Representatives agreed to pay to the Fund all amounts they recovered from the United States "related to attorney's fees and/or costs and/or expenses of the Litigation." Pls.' Mot. for Recons. 5 (quoting Ex. 1, Rempel Aff. ¶ 4). As a result, the plaintiffs argue, the Class Representatives are "personally liable and will be thrust into a precarious financial position" if the Court continues to deny the requested reimbursement of expenses from the common fund. Id. To date, though, the plaintiffs have failed to produce copies of the assignments to support their claim of personal liability. At best, the only copy of an assignment submitted in this case that purportedly was executed by the Class Representatives was filed by the United States as Exhibit 1 to its opposition brief.
Defs.' Opp'n to Pls.' Mot. for Recons. of Class Representatives' Expense Application Ex. 1 at P000478. The assignment submitted by the United States was signed by Elouise Cobell and a former Class Representative named Earl Old Person, id. but no other Class Representatives, so it is unclear whether it would even be enforceable against all Class Representatives, assuming it is enforceable at all. If it is enforceable, by the plain terms of the assignment all rights to the $99 million attorneys' fee award would be vested in the Blackfeet Reservation Development Fund so any obligations the Fund had to other third-party organizations arguably would be satisfied from that award. Although the plaintiffs never acknowledged whether the copy of the assignment submitted by the United States accurately reflects the assignments cited in the plaintiffs' motion for reconsideration, the plaintiffs nonetheless concede that the Class Representatives "`have agreed to pay to the Blackfeet Reservation Development Fund all amounts that any or all of them recover from the United States ... related to attorney's fees....'" Pls.' Mot. for Recons. 5 (quoting Ex. 1, Rempel Aff. ¶ 4). Consequently, the Class Representatives will not be thrust into a "precarious financial position," id. because any repayment obligation guaranteed by the Class Representatives and incurred by the Blackfeet Reservation Development Fund could be satisfied from the plaintiffs' $99 million attorneys' fee award rather than the remainder of the common fund benefitting the class plaintiffs, the amount of which would be decreased by more than $10 million if the Court followed the approach advocated by the plaintiffs for reimbursing the expenses of third-party organizations that supported the litigation.
At this juncture, the Court admits to some concern about whether the Class Representatives might have been misled about the legal significance of the assignments, assuming, again, that the assignments exist and state what the plaintiffs say they state. Based on the plaintiffs' own characterization of the assignments in their motion for reconsideration, it appears to the Court that the $99 million attorneys'
Finally, in their motion for reconsideration the plaintiffs argued that the Settlement Agreement provided for the payment of costs and expenses "wholly independent of, and in addition to, expenses and costs of Class Counsel." Pls.' Mot. for Recons. 4. The Court need not take a position on the merits of this issue because it could have been raised before the Court ruled on the incentive-award petition and, therefore, is not a proper subject of the motion for reconsideration. That being said, the Court notes that this argument is irrelevant to the question of whether the $99 million attorney's fee award is subject to contracts that guarantee rights in the award to the Blackfeet Reservation Development Fund or other third-party organizations.
For the reasons set forth in this Memorandum Opinion, the Court will deny Plaintiffs' Motion for Reconsideration of Class Representatives' Expense Application [ECF No. 3839]. An appropriate order will accompany this Memorandum Opinion.