December 09, 2009
Cobell and the Mighty Judge
Posted by David Zaring

The resolution of the Indian Trust litigation made the front page of the Times, and I can't say I'm surprised.  The government doesn't usually pay $3.4 billion to anyone, in damages at least, and this case involved the holding of two secretaries of the interior in contempt.  That's rare too.  But there was nothing like Cobell.  As AAG Tom Perrelli said in announcing the tentative deal, "This case involves allegations of breach of trust that literally go back to the nineteenth century and has taken 13 years, through seven full trials and 192 trial days and ten rounds at the Court of Appeals, to reach this point."  Here's the AG on the settlement, and the president released a statement too.

Left unsaid was how many of those trips to the court of appeals led to reversal of the trial judge, and, eventually, reassignment of the case out of his court.  The case demonstrated how powerful a determined district court judge could be; I suspect that few expected at the beginning of the case that it would end up being worth billions, but that is what happened, and I assume the repeated cudgelling of Justice and the Department of the Interior in court contributed to that number. 

The last time I heralded an end to Cobell, it was over a year ago, and looked like it would be worth $455 million:

it took decades, the prevention of the use of email by the Department of the Interior for a matter of months, ten appeals to the DC Circuit, the removal of the case from a very angry trial judge, but finally, despite plaintiffs' best efforts, a court has issued a damages determination.  $455 million.  Kinda a lot, but the plaintiffs turned down $7 billion not long ago.  They wanted $27 billion. Cobell isn't a very businessy case, but to many DC litigants, it was, until today, what plaintiffs dreamed about.  Endless discovery, lots of sanctions requests, many of which were granted, the opportunity to stop a government agency dead in its tracks, and maybe a rich settlement in the future....

We will see if this settlement sticks.  I've written about this sort of management by litigation here and here, if you're interested in that sort of thing.

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