January 24, 2018

A class of Native American farmers and ranchers urged the U.S. Supreme Court on Monday to reject bids to overturn a D.C. Circuit decision that allows the redistribution of $380 million left over from the U.S. Department of Agriculture’s landmark Keepseagle settlement of racial discrimination claims, saying the money would benefit class members even though it wouldn’t all go directly to successful claimants.

Class representative Keith Mandan and Donivon Craig Tingle, a member of the class, filed separate petitions to the high court in December, arguing that a May decision by the D.C. Circuit unfairly permitted the modification of the cy pres provisions of the $680 million Keepseagle deal to distribute much of the unclaimed funds to nonprofit organizations and a trust instead of giving more money to those who previously received payouts through the deal. But class counsel argued in a brief in opposition Monday that both Mandan and Tingle forfeited their right to raise their objections to the cy pres provisions of the deal by failing to raise them before the case made its way to the D.C. Circuit.

And the circuit court panel correctly found that the cy pres provisions benefited the class, since the redistribution of the leftover funds “was intended to provide compensation, albeit indirectly, to a class [composed] of many individuals who did not submit claims,” according to the brief.

The case is also inappropriate for the high court because its circumstances, including the “unusually large and unanticipated remainder” of the settlement, aren’t likely to happen again, class counsel argued. In addition, Attorney General Jeff Sessions’ June memo prohibiting the use of cy pres in future federal settlements “suggests that this court’s guidance on the question presented is not necessary,” according to the brief.

The 2010 Keepseagle deal resolved a long-running class action from lead plaintiff Marilyn Keepseagle and others claiming that a USDA loan program favored white farmers over Native American farmers for almost two decades.

The complete article can be accessed here.