Case 1:08-mc-00511-PLF Document 1 Filed 08/08/08 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

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MARY LEE AGEE, et al.,

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Plaintiffs,

)

)

v.

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EDWARD T. SCHAFER, Secretary,

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United States Department of Agriculture,

)

)

Defendant.

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__________________________________________)

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FOREST KIMBROUGH, et al.,

)

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Plaintiffs,

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v.

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)

EDWARD T. SCHAFER, Secretary,

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United States Department of Agriculture,

)

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Defendant.

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__________________________________________)

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LINDA ADAMS, et al.,

)

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Plaintiffs,

)

)

v.

)

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EDWARD T. SCHAFER, Secretary,

)

United States Department of Agriculture,

)

)

Defendant.

)

__________________________________________)

Civil Action No. 08-882 (PLF) Civil Action No. 08-901 (PLF) Civil Action No. 08-919 (PLF)

Case 1:08-mc-00511-PLF Document 1 Filed 08/08/08 Page 2 of 6

__________________________________________

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NATIONAL BLACK FARMERS

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ASSOCIATION, et al.,

)

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Plaintiffs,

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v.

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EDWARD T. SCHAFER, Secretary,

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United States Department of Agriculture,

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Defendant.

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__________________________________________)

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WILLIE E. BENNETT, et al.,

)

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Plaintiffs,

)

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v.

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EDWARD T. SCHAFER, Secretary,

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United States Department of Agriculture,

)

)

Defendant.

)

__________________________________________)

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AMBROSE MCKINNEY, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

EDWARD T. SCHAFER, Secretary,

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United States Department of Agriculture,

)

)

Defendant.

)

__________________________________________)

Civil Action No. 08-940 (PLF) Civil Action No. 08-962 (PLF) Civil Action No. 08-1062 (PLF)

2

Case 1:08-mc-00511-PLF Document 1 Filed 08/08/08 Page 3 of 6

__________________________________________

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JAMES BOLTON, et al.,

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Plaintiffs,

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v.

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EDWARD T. SCHAFER, Secretary,

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United States Department of Agriculture,

)

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Defendant.

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__________________________________________)

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BLACK FARMERS AND

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AGRICULTURALISTS

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ASSOCIATION, INC., et al.,

)

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Plaintiffs,

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v.

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EDWARD T. SCHAFER, Secretary,

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United States Department of Agriculture,

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)

Defendant.

)

__________________________________________)

Civil Action No. 08-1070 (PLF) Civil Action No. 08-1188 (PLF)

ORDER The eight above-captioned actions were filed in this Court pursuant to Section 14012 of the Food, Conservation and Energy Act of 2008 (the “Act”). In order to ensure that these actions are managed in an efficient and orderly manner, it is hereby ORDERED that: 1. Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the abovecaptioned actions and any other actions filed in this Court seeking relief under Section 14012 of the Act are consolidated and will be coordinated for all purposes.

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2. All papers in these actions shall be filed by electronic means, through the Case Management/Electronic Case Filing system (“CM/ECF”), as required by (and subject to the exceptions contained in) Local Civil Rule 5.4.
3. All counsel who have not yet done so shall promptly obtain a CM/ECF password from the Clerk of the Court, pursuant to the requirements of Local Civil Rule 5.4(b).1
4. As provided by Local Civil Rule 5.4(d), electronic filing of any document operates to effect service of the document on all parties whose counsel have obtained CM/ECF passwords. Counsel who have not yet obtained CM/ECF passwords must serve and be served as otherwise provided in Rule 5(b) of the Federal Rules of Civil Procedure. See also FED. R. CIV. P. 5.2 (“Privacy Protection for Filings Made with the Court”) (effective Dec. 1, 2007). The Clerk of the Court is not required to provide hard copies of any papers filed electronically in these consolidated cases to attorneys who have not entered their appearances on the CM/ECF system and registered for a password granting them access to the electronic dockets.
5. The Clerk of the Court shall maintain a Master Docket and electronic case file under the caption “In re Black Farmers Discrimination Litigation,” and the case number Misc. No. 08-0511 (PLF). Every document filed in these consolidated actions shall bear the following caption:

1

Counsel may speak with either of the following with respect to this paragraph: Joe

Burgess, CM/ECF Coordinator, 202-354-3172 or Greg Hughes, Chief Deputy Clerk for

Operations, 202-354-3191.

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__________________________________________

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In re BLACK FARMERS DISCRIMINATION )

LITIGATION

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__________________________________________)

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This document relates to:

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)

)

__________________________________________)

Misc. No. 08-0511 (PLF)

When a document is applicable to all actions, the caption of the document shall include the notation “ALL CASES” below the phrase “This document relates to.” Such documents shall be filed only in the Master Docket.
When a document is applicable only to a specific action or actions, the caption of the document shall include the individual docket number(s) of the action(s) to which the document applies below the phrase “This document relates to.” In such cases, counsel shall file the document in the Master Docket and in the docket of each individual action to which it is applicable. When counsel files a document applicable only to a specific action or actions, counsel shall not “spread” such filings to the other consolidated actions when presented with that option during the electronic case filing process.
6. Defendant shall file a Notice of Related Case in the Master Docket whenever a new case is filed in this Court that defendant believes should be consolidated into this action, unless the action already has been assigned to the undersigned judge.
7. No parties to any of these actions shall be required to obtain local counsel in this district, and the requirements of Local Civil Rule 83.2 are waived as to any attorney appearing in these actions who is duly admitted to practice before any United States Court.
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8. Any paper filed in any of these actions which is substantially identical to any other paper filed in another of these actions shall be sufficient if it incorporates by reference the paper to which it is substantially identical. Where counsel for more than one party plan to file substantially identical papers they shall join in the submission of such papers and shall file only one paper on behalf of all so joined.
9. Counsel shall familiarize themselves with the Local Civil Rules of this Court. Except as provided herein to the contrary, the parties shall comply with all such Rules. The parties are directed especially to the requirements of Local Civil Rule 5.1(b), regarding written correspondence with the Court (which shall be by motion, opposition, and reply, rather than by letter); Local Civil Rule 7(m), regarding the duty of counsel to confer in advance of filing nondispositive motions (including those for enlargements of time); and Local Civil Rule 7(c), regarding the submission of proposed orders with all motions and oppositions.
10. The Court will be guided by the Manual for Complex Litigation Fourth (2004), approved by the Judicial Conference of the United States. Counsel are directed to familiarize themselves with that publication.
SO ORDERED.

DATE: August 8, 2008

/s/_______________________________ PAUL L. FRIEDMAN United States District Judge

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 </s> Case 1:08-mc-00511-PLF Document 24 Filed 11/14/08 Page 1 of 16

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YVONNE D. HAMPTON 3740 Highway 156 Butler, AL 36904

LUTHER THORNBURG Post Office Box 825 Washington, MS 39190
GENEVA NELSON Post Office Box 242 Newbern, AL 36765

SECOND AMENDED COMPLAINT FOR DETERMINATION ON THE MERITS AND DAMAGES PURSUANT TO § 14012 OF THE FOOD, CONSERVATION AND ENERGY ACT OF 2008

- and -

Civil Action No. 08-cv-1381 (PLF)

ADDITIONAL PLAINTIFFS AS LISTED IN APPENDIX A, APPENDIX B and APPENDIX C,

Plaintiffs,

v.

ED SCHAFER, Secretary THE UNITED STATES DEPARTMENT OF AGRICULTURE 1400 Independence Avenue, S.W. Washington, DC 20250,

Defendant.

Pursuant to Section 14012(b) of the Food, Conservation and Energy Act of 2008 (“2008 Farm Bill” or “Act”), Plaintiffs, 21,440 African American farmers, bring this action seeking a determination on the merits of their “Pigford claims” and damages for unlawful race-based discrimination in the processing of their applications or in their attempts to apply for participation in federal farm credit or benefit programs between January 1, 1981 and December 31, 1996.

Case 1:08-mc-00511-PLF Document 24 Filed 11/14/08 Page 2 of 16
NATURE OF THE CASE “Forty acres and a mule. The government broke that promise to African American farmers. Over one hundred years later, the USDA broke its promise to [Pigford claimants].” So declared this Court on April 14, 1999 in approving the Consent Decree in Pigford v. Glickman, Civ. A. No. 1:97-cv-1978, a class action brought by African American farmers against the United States Department of Agriculture (“USDA”) for systemic and systematic discrimination, in violation of the Fifth Amendment to the United States Constitution, the Equal Credit Opportunities Act, 15 U.S.C. § 1691, the Administrative Procedure Act, 5 U.S.C. §§ 551, et seq.; and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Pigford v. Glickman, 185 F.R.D. 82, 112 (D.D.C. 1999), aff’d, 206 F.3d 1212 (D.C. Cir. 2000). The Court found that the USDA had “for decades” discriminated against African American farmers “when [it] denied, delayed or otherwise frustrated the applications of those farmers for farm loans and other credit and benefit programs.” Id. at 85. Further, the USDA compounded the problem in 1983 by dismantling the Department’s Office of Civil Rights Enforcement and Adjudication (“OCREA”) and failing to process, investigate, or forward to appropriate agencies for conciliation complaints of discrimination filed with OCREA. Id. This Court observed that these events “were the culmination of a string of broken promises that had been made to African American farmers for well over a century.” Id. After more than a year of litigation, the parties negotiated a settlement and entered into a Consent Decree to resolve the Pigford litigation. The Consent Decree established a process enabling farmers who had been discriminated against as applicants for, or in their attempts to apply for, farm loans or other credit and benefit programs to obtain an adjudication of their discrimination claims through a two-track dispute resolution mechanism. Under Track A, class
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members with minimal, or even no, documentary evidence were entitled to receive a “virtually automatic cash payment of $50,000, and forgiveness of debt owed to the USDA.” Id. at 95. The Track B option required a higher burden of proof – preponderance of the evidence – but allowed for uncapped damages. Id.
As this Court concluded, the Pigford Consent Decree was “a significant first step” in redressing the wrongs that had been heaped upon African American farmers between 1981 and 1996. Id. at 113. As of September 29, 2008, more than 22,000 farmers had presented their claims for adjudication on the merits, and more than 15,000 farmers had received monetary compensation. See Office of the Monitor, http://www.pigfordmonitor.org/stats. However, tens of thousands of class members were unable to obtain relief under the Consent Decree. See Arbitrator’s Ninth Report on the Late-Claim Petition Process (“Arb. Rpt.”), Civ. A. No. 1:97-cv1978 Docket Entry (“Dkt.”) 1214, Nov. 30, 2005 at 4.
Many farmers who had suffered discrimination and were entitled to seek relief under the Consent Decree, including the Plaintiffs in this action, were unable to obtain relief because they did not submit completed claims packages by the October 12, 1999 deadline established by the Consent Decree. The Consent Decree did afford farmers who filed after the October 12, 1999 deadline a potential right to proceed with their claims, but only if they filed on or before September 15, 2000 and could satisfy the “extraordinary circumstances” test of Section 5(g). See Stipulation and Order, July 14, 2000, Dkt. 303, at 3; Arb. Rpt. at 2-3. Of the nearly 66,000 farmers who submitted their claim forms after October 12, 1999 and petitioned pursuant to Section 5(g) of the Consent Decree to participate as “late-filers” in the claims resolution process by the September 15, 2000 deadline, just over 2,700 – i.e., only four percent – have been
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permitted to proceed. Plaintiffs here are among the 96% of “late filing” farmers who were denied a determination on the merits of their discrimination claims.
Congress has now determined that these “late-filing” claimants who were denied a determination on the merits of their discrimination claims under the Consent Decree may seek redress. On May 22, 2008, the 2008 Farm Bill became law. Section 14012 of the Act expressly affords to Pigford claimants who previously had submitted “late-filing” requests under the Consent Decree – but who did not obtain a determination on the merits – the right to bring a civil action in the United States District Court for the District of Columbia to obtain such a meritsbased determination of their claims. The Act further mandates that the USDA, within 120 days of such a filing, provide specific information to claimants reflecting farm loan activity during the period of each claimant’s application, and further provides two tracks for relief by which claimants may establish liability. 2008 Farm Bill, §§ 14012(e), 14012(f), and 14012(g). Claimants who prevail are entitled to actual damages or certain specified liquidated damages. Id. at §§ 14012(f) and 14012(g).
Congress’s intent in enacting this remedial legislation is clear – to “giv[e] a full determination on the merits for each Pigford claim previously denied that determination.” 2008 Farm Bill, § 14012(d). Indeed, the Act specifically instructs the court to “liberally construe [§ 14012] so as to effectuate [this] remedial purpose.” Id. During floor debates, Senator Barack Obama, a leading sponsor of the legislation, reiterated that the bill was intended “to provide tens of thousands of eligible late Pigford claimants a right to go to court and have their cases heard.” 154 Cong. Rec. S4212-05. Senator Tom Harkin, another key supporter of the legislation, explained that the legislation was intended to ensure that “these claimants who have not had their
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cases determined on the merits may, in [a] civil action, obtain that determination.” 154 Cong. Rec. S4152-01.
Through this action, Plaintiffs, in reliance on the express language and manifest intent of Section 14012 of the Act, seek to obtain redress for the unlawful race-based discrimination they suffered in the processing of their applications or in their attempts to apply for participation in federal farm credit or benefit programs between January 1, 1981 and December 31, 1996.
JURISDICTION 1. This Court has jurisdiction over this matter pursuant to 15 U.S.C. § 1691; 28 U.S.C. §§ 1331, 1343, 1346; 42 U.S.C. § 2000d; 5 U.S.C. § 706; and Pub. L. No. 110-234, § 14012(b).
VENUE 2. Venue lies in this judicial district pursuant to 28 U.S.C. § 1391(e) and Pub. L. No. 110-234, § 14012(b).
THE PARTIES 3. Plaintiff YVONNE D. HAMPTON is an African American farmer residing in Butler, Alabama who farmed or attempted to farm between January 1, 1981 and December 31, 1996. In 1989, Ms. Hampton attempted to apply to the USDA’s Farm Services Agency (“FSA”) office in Linden, Alabama for a farm operating loan, but she was denied the right to even fill out an application. Ms. Hampton was subject to racial discrimination in the FSA’s response to her attempt to apply for a loan, and she suffered substantial economic injury as a result of this discrimination. Ms. Hampton complained to the United States Government about the USDA discrimination after January 1, 1981 and on or before July 1, 1997.
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4. On information and belief, Ms. Hampton is a member of the Pigford class and a “Pigford claimant” as defined by Section 14012(a)(4) of the Act. Pursuant to Section 5(g) of the Consent Decree, Ms. Hampton petitioned to participate in the claims resolution process as a “late-filer” on or before September 15, 2000, and she was assigned Tracking No. 56007. The request was denied by the Arbitrator, and Ms. Hampton has never obtained a determination on the merits of her claims.
5. Plaintiff LUTHER THORNBURG is an African American farmer residing in Washington, Mississippi who farmed or attempted to farm between January 1, 1981 and December 31, 1996. In both 1986 and 1993, Mr. Thornburg attempted to apply to the USDA for farm ownership loans, but in both instances, he was denied the right to even fill out an application. Mr. Thornburg was subject to racial discrimination in the USDA’s response to his attempt to apply for a loan, and he suffered substantial economic injury as a result of this discrimination. Mr. Thornburg complained to the United States Government about the USDA discrimination after January 1, 1981 and on or before July 1, 1997.
6. On information and belief, Mr. Thornburg is a member of the Pigford class and a “Pigford claimant” as defined by Section 14012(a)(4) of the Act. Pursuant to Section 5(g) of the Consent Decree, Mr. Thornburg petitioned to participate in the claims resolution process as a “late-filer” on or before September 15, 2000, and he was assigned Tracking No. 57311. The request was denied by the Arbitrator, and Mr. Thornburg has never obtained a determination on the merits of his claims.
7. Plaintiff GENEVA NELSON is an African American farmer residing in Newbern, Alabama who farmed or attempted to farm between January 1, 1981 and December 31, 1996. In 1985, Ms. Nelson applied to the USDA for a farm operating loan, but was denied
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and was told that there was no funding available. Ms. Nelson was subject to racial discrimination in the USDA’s response to her loan request, and she suffered substantial economic injury as a result of this discrimination. Ms. Nelson complained to the United States Government about the USDA discrimination after January 1, 1981 and on or before July 1, 1997.
8. On information and belief, Ms. Nelson is a member of the Pigford class and a “Pigford claimant” as defined by Section 14012(a)(4) of the Act. Pursuant to Section 5(g) of the Consent Decree, Ms. Nelson petitioned to participate in the claims resolution process as a “latefiler” on or before September 15, 2000, and she was assigned Tracking No. 57612. The request was denied by the Arbitrator, and Ms. Nelson has never obtained a determination on the merits of her claims.
9. On information and belief, the 21,437 additional Plaintiffs listed in Appendix A, Appendix B and Appendix C1 to this Second Amended Complaint are all likewise part of the Pigford class who are “Pigford claimants” as defined by Section 14012(a)(4) of the Act. Specifically, on information and belief, each of these Plaintiffs is an African American farmer who:
(a) farmed, or attempted to farm, between January 1, 1981 and December 31, 1996; (b) applied or attempted to apply to the USDA for participation in a federal farm credit or benefit programs between January 1, 1981 and December 31, 1996; (c) was treated differently than similarly-situated white farmers and was subject to racial discrimination in the USDA’s response to loan applications or attempts to apply for loans or other farm benefit programs; (d) suffered substantial economic injury as a result of this discrimination;

1

Plaintiffs listed in Appendix A were filed with the original Complaint; plaintiffs listed in

Appendix B were added as part of the Amended Complaint; and plaintiffs listed in Appendix C are being

added as part of this Second Amended Complaint.

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(e) complained to the United States Government about USDA discrimination, within the meaning of § 1(h) of the Consent Decree, after January 1, 1981 and on or before July 1, 1997; (f) filed a request under § 5(g) of the Consent Decree to participate as a “late filer” after October 12, 1999 and on or before September 15, 2000, which was denied by the Claims Administrator; and (g) never obtained a determination on the merits of his or her claims. 10. Defendant Ed Schafer is Secretary of the USDA, and is the federal official responsible for the administration of the statutes, regulations, and loan programs which are at issue in this litigation.
FACTUAL BACKGROUND 11. Timothy Pigford, an African American farmer, filed a class action lawsuit in 1997 in the United States District Court for the District of Columbia alleging that the USDA had discriminated against African American farmers by denying or delaying applications for farm benefit programs and by mishandling discrimination complaints filed with the USDA. Pigford v. Glickman, Civ. A. No. 97-cv-1978. A second class action suit was filed by Cecil Brewington, alleging similar discrimination by USDA against African American farmers. Brewington v. Glickman, Civ. A. No. 98-cv-1693. These actions were consolidated by the Court, and, on January 5, 1999, the Court certified the following class:
All African American farmers who (1) farmed, or attempted to farm between January 1, 1981 and December 31, 1996; (2) applied to the United States Department of Agriculture (USDA) during that time period for participation in a federal farm credit or benefit program and who believed that they were discriminated against on the basis of race in USDA’s response to that application; and (3) filed a discrimination complaint on or before July 1, 1997, regarding USDA’s treatment of such farm credit or benefit application. Pigford, 185 F.R.D. at 92.
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12. The Seventh Amended Class Action Complaint in Pigford (“Pigford Compl.”) alleged that the USDA engaged in systematic discrimination, from the county level through the federal level, against African American farmers who applied for loans or other credit services and benefit programs through the Farm Services Agency (“FSA”), and its predecessor organizations, the Agricultural Stabilization and Conservation Service (“ASCS”) and the FmHA. Pigford Compl. at ¶¶ 17-20. The FmHA was originally created to provide loans, loan servicing, and technical assistance for farmers. The FmHA and ASCS were merged in 1994 to create the FSA. Id. at ¶¶ 17-18.
13. The FSA, like the FmHA and the ASCS before it, operates through a three-tiered review system consisting of county-level offices and committees, which are reviewed and monitored by state-level offices and committees, which are in turn subject to federal level review in Washington, D.C. by the national office and the National Appeals Division. Id. at ¶ 20. Although the credit and benefit programs are federally-funded programs, the decisions to approve or deny applications for credit or benefits are made locally at the county level, by locally elected county committees and local loan officers appointed by those committees. Pigford, 185 F.R.D. at 86. The county committees, elected by local ranchers and farmers, did not reflect the racial diversity of the communities they serve – indeed, nationwide, the African American representation among county commissioners in 1999 was less than 0.5%. Id. at 87.
14. Despite the existence, at least nominally, of state and federal-level review, the local committees were rife with discrimination. As this Court noted, “African American farmers complain[ed] that county commissioners ha[d] discriminated against them for decades, denying their applications, delaying the processing of their applications or approving them for insufficient amounts . . . .” Pigford, 185 F.R.D. at 87. The Court further found that the delays were so
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extreme in some locations that “it took three times as long on average to process the application of an African American farmer as it did to process the application of a white farmer.” Id. (citing the USDA’s Civil Rights Action Team (“CRAT”) Report). In approving the Consent Decree, this Court concluded that the USDA “and the county commissioners discriminated against African American farmers when they denied, delayed or otherwise frustrated the applications of those farmers for farm loans and other credit and benefit programs.” Id. at 85.
15. The discrimination problems were exacerbated by lack of institutional oversight. In 1983, the USDA “disbanded its Office of Civil Rights and stopped responding to claims of discrimination.” Id. There was supposed to be a detailed process for investigating discrimination claims, but “[a]ll the evidence developed by the USDA and presented to the Court indicates . . . that this system was functionally nonexistent for well over a decade.” Id. at 88.
16. When African American farmers complained to the USDA, their complaints were mismanaged, ignored or lost. In fact, “[i]n some cases, [Office of Civil Rights Enforcement and Adjudication] staff simply threw discrimination complaints in the trash without ever responding to or investigating them.” Id.
17. In December 1996, in response to frequent complaints that its farm credit programs were operating in a discriminatory manner, the USDA convened a Civil Rights Action Team to conduct a comprehensive study of its farm loan programs. After an exhaustive study, the USDA issued the “CRAT Report,” which concluded that “‘[m]inority farmers have lost significant amounts of land and potential farm income as a result of discrimination’” by USDA entities such as the FSA. Id. (quoting the CRAT Report). The CRAT Report also found that the “process for resolving complaints ha[d] failed” and that “immediate action was needed to clear the backlog of complaints.” Id.
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18. The USDA’s acknowledgement that discrimination was rampant and complaints had never been processed came too late for many of the African American farmers because of the two-year statute of limitations on their claims. See id. To enable them to pursue their claims, Congress passed legislation in 1998 that tolled the statute of limitations for farmers who filed discrimination complaints with the USDA before July 1, 1997. Id. at 88-89.
19. The Pigford and Brewington suits followed, and the Consent Decree entered into on April 14, 1999 provided some measure of relief for many African American farmers. As noted above, however, Congress recognized that additional relief was necessitated by the fact that approximately 63,000 plaintiffs who had timely requested to be considered as “late” filers were denied the ability to have their claims determined on the merits. Thus, Congress enacted Section 14012 in the 2008 Farm Bill to give redress to the tens of thousands of class members who were not able to obtain a determination of their individual claims under the 1999 Consent Decree. Pursuant to Section 14012(b) of the 2008 Farm Bill, Plaintiffs have filed this action.
CLAIMS FOR RELIEF COUNT I
ACTION FOR DETERMINATION ON THE MERITS OF PIGFORD CLAIMS PURSUANT TO § 14012 OF 2008 FARM BILL 20. Plaintiffs reallege each and every allegation set forth in paragraphs 1-19 of this Second Amended Complaint as if fully set forth herein. 21. Pursuant to Section 14012(b) of the Act, each Plaintiff is entitled to a determination on the merits of a Pigford claim in this Court. The Court should find, pursuant to Section 14012(b) of the Act, that each Plaintiff was the subject of unlawful discrimination by the USDA.
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COUNT II ACTION FOR DAMAGES PURSUANT TO § 14012 OF THE 2008 FARM BILL 22. Plaintiffs reallege each and every allegation set forth in paragraphs 1-21 of this Second Amended Complaint as if fully set forth herein. 23. Pursuant to Sections 14012(g) and 14012(f)(1) of the Act, each Plaintiff alleging discrimination relating to USDA loan programs is entitled either to actual damages or, in the alternative, to liquidated damages of $50,000, discharge of any debt that was incurred under, or affected by, the programs that were the subject of the discrimination claims, and a tax payment in the amount equal to 25 percent of the liquidated damages and loan principal discharged.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court: (A) Provide a process for each Plaintiff to file his or her Pigford claim, either under
§14012(f) of the Act for expedited resolution and liquidated damages or §14012(g) for actual damages; (B) Order Defendant to provide to each Plaintiff – within 120 days of receiving notice of each Plaintiff’s claim – a report on farm credit loans and noncredit benefits made within each Plaintiff’s county and meet all other requirements of Section 14012(e) of the Act; (C) Provide each Plaintiff a determination on the merits of his or her claim; (D) Award each Plaintiff either (a) the actual damages he/she sustained as a result of discrimination by the USDA; or (b) liquidated damages in the amount of $50,000 for each Plaintiff; or (c) liquidated damages in the amount of $3,000 for noncredit benefit claims;
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Phillip L. Fraas, D.C. Bar No. 211219 Stinson Morrison Hecker 1150 18th Street, N.W., Suite 800 Washington, DC 20036-3816 Tel: 202-572-9904 Fax: 202-572-9982
James Scott Farrin Eric P. Haase LAW OFFICES OF JAMES SCOTT FARRIN 4819 Emperor Boulevard, Suite 200 Durham, NC 27703 Phone: 919-688-4991 Fax: 919-688-4468
Donald McEachin MCEACHIN & GEE LLP 4719 Nine Mile Road Richmond, VA 23223 Phone: 804-226-4111 Fax: 804-226-8888
Harris Pogust, D.C. Bar No. AR 0001 POGUST, BRASLOW & MILLROOD, LLC 161 Washington Street, Suite 1520 Conshohocken, PA 19428 Tel: 610-941-4204 Fax: 610-941-4245
William Lewis Garrison William L. Bross, IV Gayle L. Douglas HENINGER, GARRISON & DAVIS LLC Post Office Box 11310 2224 1st Avenue North Birmingham, AL 35202 Tel: 205-326-3336 Fax: 205-326-3332
Walter B. Calton Michael A. Rutland CALTON & RUTLAND LLC Post Office Box 696 Eufaula, AL 36027 Tel: 334-687-2407 Fax: 334-687-2466
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Case 1:08-mc-00511-PLF Document 24 Filed 11/14/08 Page 15 of 16 Jimmy Spurlock Calton, Jr. LAW OFFICES OF CALTON & CALTON 226 East Broad Street Eufaula, AL 36027 Tel: 334-687-3563 Fax: 334-687-3564 Attorneys for Plaintiffs
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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 1 of 196

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YVONNE D. HAMPTON 3740 Highway 156 Butler, AL 36904

LUTHER THORNBURG Post Office Box 825 Washington, MS 39190
GENEVA NELSON Post Office Box 242 Newbern, AL 36765

SECOND AMENDED COMPLAINT FOR DETERMINATION ON THE MERITS AND DAMAGES PURSUANT TO § 14012 OF THE FOOD, CONSERVATION AND ENERGY ACT OF 2008

- and -

Civil Action No. 08-cv-1381 (PLF)

ADDITIONAL PLAINTIFFS AS LISTED IN APPENDIX A, APPENDIX B and APPENDIX C,

Plaintiffs,

v.

ED SCHAFER, Secretary THE UNITED STATES DEPARTMENT OF AGRICULTURE 1400 Independence Avenue, S.W. Washington, DC 20250,

Defendant.

APPENDIX A TO THE SECOND AMENDED COMPLAINT

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 15 of 196


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 19 of 196


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 21 of 196

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 70 of 196

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 71 of 196

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 72 of 196

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 98 of 196

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

 
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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 128 of 196

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 129 of 196

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 154 of 196

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 156 of 196

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 166 of 196

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 168 of 196

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08


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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08 Page 172 of 196

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-1 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-2 Filed 11/14/08 Page 1 of 48

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YVONNE D. HAMPTON 3740 Highway 156 Butler, AL 36904

LUTHER THORNBURG Post Office Box 825 Washington, MS 39190
GENEVA NELSON Post Office Box 242 Newbern, AL 36765

SECOND AMENDED COMPLAINT FOR DETERMINATION ON THE MERITS AND DAMAGES PURSUANT TO § 14012 OF THE FOOD, CONSERVATION AND ENERGY ACT OF 2008

- and -

Civil Action No. 08-cv-1381 (PLF)

ADDITIONAL PLAINTIFFS AS LISTED IN APPENDIX A, APPENDIX B and APPENDIX C,

Plaintiffs,

v.

ED SCHAFER, Secretary THE UNITED STATES DEPARTMENT OF AGRICULTURE 1400 Independence Avenue, S.W. Washington, DC 20250,

Defendant.

APPENDIX B TO THE SECOND AMENDED COMPLAINT

Case 1:08-mc-00511-PLF Document 24-2 Filed 11/14/08 Page 2 of 48

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Case 1:08-mc-00511-PLF Document 24-2 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-2 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-2 Filed 11/14/08



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Case 1:08-mc-00511-PLF Document 24-2 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-2 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-2 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-3 Filed 11/14/08 Page 1 of 35

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YVONNE D. HAMPTON 3740 Highway 156 Butler, AL 36904

LUTHER THORNBURG Post Office Box 825 Washington, MS 39190
GENEVA NELSON Post Office Box 242 Newbern, AL 36765

SECOND AMENDED COMPLAINT FOR DETERMINATION ON THE MERITS AND DAMAGES PURSUANT TO § 14012 OF THE FOOD, CONSERVATION AND ENERGY ACT OF 2008

- and -

Civil Action No. 08-cv-1381 (PLF)

ADDITIONAL PLAINTIFFS AS LISTED IN APPENDIX A, APPENDIX B and APPENDIX C,

Plaintiffs,

v.

ED SCHAFER, Secretary THE UNITED STATES DEPARTMENT OF AGRICULTURE 1400 Independence Avenue, S.W. Washington, DC 20250,

Defendant.

APPENDIX C TO THE SECOND AMENDED COMPLAINT

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Case 1:08-mc-00511-PLF Document 24-3 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-3 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-3 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-3 Filed 11/14/08

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Case 1:08-mc-00511-PLF Document 24-3 Filed 11/14/08



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Case 1:08-mc-00511-PLF Document 24-3 Filed 11/14/08

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 </s> Case 1:08-mc-00511-PLF Document 112 Filed 11/12/09 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

__________________________________________)

Misc. No. 08-0511 (PLF)

)

This document relates to:

)

ALL CASES

)

)

__________________________________________)

ORDER On December 23, 2008, this Court issued a Protective Order regarding the socalled “5(g) list,” a compilation of the names and contact information of those who sought unsuccessfully to participate in the original Pigford action by submitting a claim under Section 5(g) of the Consent Decree, which permits the late filing of claims under certain circumstances. Cognizant of the need to prevent inappropriate use of the information contained in the 5(g) list, the Court directed that it be used “only for purposes of litigating these consolidated cases.” December 23, 2008 Order at 2. More specifically, plaintiffs’ counsel were authorized to use the list only to (1) communicate with existing clients whose names appeared on the list, or (2) verify that a given individual had attempted to file a claim under Section 5(g). See id. at 2-3. Counsel were explicitly forbidden to share the information contained in the list with “any other person or entity . . . for recruitment, recruitment-related, or any other purposes.” Id. at 3. Several months later, the Court was notified that some individuals whose names appear on the 5(g) list had been contacted directly regarding their potential claims by a financial services organization not involved with this litigation. See September 15, 2009 Order at 1-2. Concerned that this organization may have improperly received information from or copies of the 5(g) list in violation of the Protective Order, the Court ordered counsel for the parties to

Case 1:08-mc-00511-PLF Document 112 Filed 11/12/09 Page 2 of 2

investigate the issue and file reports documenting their respective findings. Id. at 2-3. Plaintiffs’ counsel submitted a report on September 25, 2009, in which they concluded that (1) the financial services organization in question had received the names and addresses of potential claimants in this case from public sources, and (2) the Court’s December 23, 2008 Protective Order had not been violated. See Report of Plaintiffs’ Counsel in Response to This Court’s September 15 Order at 3-4.
Instead of filing its own report, the defendant has moved to be relieved of its obligation under the September 15, 2009 Order to investigate and report on the possibility that the 5(g) list has been misused. See Defendant’s Motion and Memorandum for Relief from the Court’s September 15 Order at 1. Stating that it has no reason to doubt the conclusions reached by plaintiffs’ counsel in their report on the matter, the defendant expresses concern about the “tension” that would be created between the plaintiffs, the defendant, and their respective lawyers if defendant’s counsel attempted to investigate the manner in which the 5(g) list has been used by plaintiffs’ counsel. Id. at 1-2. The Court believes the defendant’s concern is well founded. Accordingly, it is hereby
ORDERED that the defendant’s motion for relief [111] is granted; and it is FURTHER ORDERED that the defendant is relieved of its obligations under the September 15, 2009 Order. SO ORDERED.

DATE: November 12, 2009

/s/______________________________ PAUL L. FRIEDMAN United States District Judge

2

 </s> Case 1:08-mc-00511-PLF Document 160 Filed 02/11/11 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

__________________________________________)

)

This document relates to:

)

)

ALL CASES

)

__________________________________________)

Misc. No. 08-0511 (PLF)

MEMORANDUM OPINION AND ORDER This afternoon certain plaintiffs participating in this consolidated case have filed a motion for a temporary restraining order that would enjoin another plaintiff, the Black Farmers & Agriculturalists Association, Inc. (“BFAA”), from holding a planned public informational meeting regarding this case. That meeting is, according to the movants, scheduled to take place tomorrow, February 12, 2011, in Baton Rouge, Louisiana, from 10 a.m. to 1 p.m. Although the movants have filed a notice certifying that they have properly served their motion papers upon BFAA’s counsel of record, BFAA has made no response to the motion.1 Because the Court understands from the representations of movants that BFAA is unlikely to consent to the relief

1

See Notice of Service of Certain Plaintiffs’ Motion for Temporary Restraining

Order, Docket No. 159. The moving plaintiffs represent in the filed notice that BFAA’s counsel

was promptly terminated once BFAA learned that this motion might be filed. See id. at 1.

Dedrick Brittenum, Jr., however, is still counsel of record in this matter and may only withdraw

his appearance with leave of court. See LOC. CIV. R. 83.6(c). At the same time, BFAA, as a

corporation, may not proceed pro se. See Rowland v. Cal. Men’s Colony, 506 U.S. 194, 201-02

(1993). Mr. Brittenum therefore remains the proper recipient of service of the pending motion.

See FED. R. CIV. P. 5(b)(1) ( “If a party is represented by an attorney, service under this rule must

be made on the attorney unless the court orders service on the party.”).

Case 1:08-mc-00511-PLF Document 160 Filed 02/11/11 Page 2 of 6
requested in the motion, and because the movants seek to enjoin an event scheduled to take place tomorrow morning, the motion will be denied without response from BFAA.
The movants seeking a temporary restraining order are those plaintiffs named in Civil Action Nos. 08-882, 08-901, 08-901, 08-919, 08-940, 08-962, 08-1062, 08-1070, 08-1381, and 09-1507, all of which have been consolidated as part of the same miscellaneous action. See Certain Plaintiffs’ Motion for Temporary Restraining Order (“Mot.”) at 1 n.1. These plaintiffs claim that BFAA, named as a plaintiff in Civil Action No. 08-1188, intends to hold a meeting tomorrow in Baton Rouge, Louisiana, at which BFAA will “disseminate highly misleading and inaccurate information to black farmers who may be attempting to determine if they are eligible to seek relief under Section 14012 of the 2008 Farm Bill.” Id. at 1. The moving plaintiffs base this contention on the contents of a public notice allegedly circulated by BFAA in Louisiana. See Mot., Ex. A (“Notice”). That notice announces the time and place of the planned meeting and informs readers that they should attend if they: (1) “received the $50,000.00 settlement in 1999 and/or 2000”; (2) “were denied the $50,000.00 settlement”; (3) “had a Track B claim but were persuade[d] to file under Track A”; (4) “were denied an opportunity to file a claim by the Arbitrator, Michael K. Lewis ([were a] Late Filer)”; or (5) “believe that you have a meritorious claim of discrimination in the Black farmers class action lawsuit but did not receive any notice regarding the lawsuit until after October 12, 1999.” Id. The notice also states, incorrectly, that BFAA has been granted “associational standing” in this lawsuit by order of this Court. Id.
According to the movants, the meeting notice demonstrates that BFAA will disseminate false and misleading information about this litigation because the notice specifically targets groups of people who are not eligible for any relief under the Farm Bill, which creates a
2

Case 1:08-mc-00511-PLF Document 160 Filed 02/11/11 Page 3 of 6
cause of action for those individuals who, among other things, “previously submitted a late-filing request under section 5(g) of the consent decree” entered in Pigford v. Glickman, Civil Action No. 97-1978 (“Pigford”), but only if those individuals have “not previously obtained a determination on the merits of a Pigford claim.” Pub. L. 110-234, § 14012(a)-(b), 122 Stat. 923, 1494 (2008). The movants fear that BFAA intends to propagate the idea that the Farm Bill authorizes relief for a much wider class of individuals than it actually does, and in doing so, “cause irreparable harm to the targeted farmers by sowing confusion, causing them to expend time and resources in a fruitless quest for relief, and inevitably [creating] profound disappointment and frustration.” Mot. at 7.
These contentions do not reveal a basis for the issuance of a temporary restraining order. The legal standard applicable to a motion for a temporary restraining order is the same as the one that applies to a motion for a preliminary injunction. See Sterling Commercial CreditMichigan v. Phoenix Indus. I, LLC, Civil Action No. 10-2332, 2011 WL 263674, at *2 (D.D.C. Jan. 28, 2011). To justify the issuance of such “extraordinary relief,” a moving party must show (1) that there is a substantial likelihood that the movant will succeed on the merits of its claims; (2) that it will suffer irreparable harm in the absence of an injunction; (3) that an injunction would not substantially harm the defendant or other interested parties (balance of harms); and (4) that the public interest would be furthered, or at least not adversely affected, by the injunction. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (citation and internal quotation marks omitted). While a stronger showing on some of those four factors may compensate in some circumstances for a weak showing on another factor, a motion for a temporary restraining order cannot succeed where there is no likelihood of success on the merits
3

Case 1:08-mc-00511-PLF Document 160 Filed 02/11/11 Page 4 of 6
or where there is no showing of irreparable harm. See Sterling Commercial Credit-Michigan v. Phoenix Indus. I, LLC, Civil Action No. 10-2332, 2011 WL 263674, at *3. Movants in this instance have demonstrated neither a likelihood of success on the merits of their contentions nor any likelihood of irreparable harm, a failure that is fatal to their request for relief.
The pending motion fails on the merits because the movants have not demonstrated either that BFAA intends to disseminate misleading information about this case, or that this Court would have legal grounds for enjoining BFAA’s activities even if the organization were making inaccurate representations about this litigation. It is certainly true that the BFAA meeting notice targets at least one group which, as a matter of law, has no legal right to relief under the 2008 Farm Bill: claimants who received an award of $50,000 under the Pigford consent decree. Such claimants have “previously obtained a determination on the merits” of their claims and so have no cause of action under the Farm Bill. Pub. L. 110-234, § 14012(b), 122 Stat. at 1494. Numerous individuals who fall into the other groups enumerated in the BFAA notice may also be ineligible for relief. But the mere fact that BFAA has invited ineligible individuals to its meeting is not determinative evidence that those or any other individuals will receive misleading information about this case from BFAA. The Court presumes that all parties to this case will take pains to communicate only accurate information about this litigation to prospective claimants and to the public at large, and it cannot enjoin communications by parties on the basis of such a thin factual record. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 (1981) (“[A]n order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.”).
4

Case 1:08-mc-00511-PLF Document 160 Filed 02/11/11 Page 5 of 6
Even if the Court were persuaded that BFAA does intend to supply misleading information to interested individuals at the scheduled meeting, the movants have cited no authority suggesting that the Court has in these circumstances the power to issue the order that the movants request. While “a district court has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and the parties,” Gulf Oil Co. v. Bernard, 452 U.S. at 100, this litigation — by movants’ own choice, see Certain Plaintiffs’ Consolidated Opposition to Defendant’s Motion to Certify a Rule 23(b)(1) Class, Docket No. 64 — is not yet a class action. And although the Court has on many occasions expressed its desire that the counsel and the parties involved in this case conduct themselves in a manner conducive to the orderly and just resolution of this matter, BFAA’s proposed course of action offends no order previously issued by the Court in this case.
The Court is also unpersuaded that the moving plaintiffs, or any other individuals, will experience irreparable harm in the absence of a restraining order. The litigation of this matter, although it has now continued for more than two years, is still in the early stages. No class has been certified; no settlement has been submitted for the Court’s approval; and certainly no official notice regarding any settlement has been disseminated. If attendees of the BFAA meeting come away confused or frustrated, their questions can be answered and their concerns addressed as this matter progresses.
Because the movants have demonstrated neither a likelihood of success on the merits nor a probability of imminent irreparable harm, the Court declines to issue the requested temporary restraining order. Accordingly, it is hereby
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ORDERED that [158] Certain Plaintiffs’ Motion for Temporary Restraining Order is DENIED.
SO ORDERED.

DATE: February 11, 2011

/s/ Colleen Kollar-Kotelly, for PAUL L. FRIEDMAN United States District Judge

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 </s> Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 1 of 16

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES COPELAND 3 Effingham Court Columbus, Ga 31909

EARL MOORER, on Behalf of the Estate of JOHN MOORER 292 Benton Rd. Lowndesboro, Al 36752

MARSHALLENE McNEIL 472 Hwy 41 North Camden, AL 36726
Plaintiffs,1

Civ. No. 08-cv-1188-PLF

v.

TOM VILSACK, Secretary THE UNITED STATES DEPARTMENT OF AGRICULTURE 1400 Independence Avenue, S.W. Washington, DC 20250,

Defendant.

AMENDED CLASS ACTION COMPLAINT TO DETERMINE MERITS AND DAMAGES PURSUANT TO § 14012 OF THE FOOD, CONSERVATION AND ENERGY ACT OF 2008, AS AMENDED
Pursuant to Section 14012 of the Food, Conservation and Energy Act of 2008 (“Farm
Bill”),2 as amended by Section 201 of the Claims Resolution Act of 2010 (“Claims Resolution
Act”),3 Plaintiffs James Copeland, Earl Moorer (on behalf of the Estate of John Moorer), and
Marshallene McNeil (hereinafter “Plaintiffs”) bring this action against the Secretary of

1

This amended complaint removes the Black Farmers and Agriculturalists Association, Inc.

(“BFAA”) as a plaintiff in this action. Previously named Plaintiffs Tommy Davis, Virginia Flinn Factor,

and Ludora Valentine remain plaintiffs eligible for relief as putative members of the proposed Class.

2

Pub. L. 110-246, 112 Stat. 1651 (June 18, 2008).

3

Pub. L. 111-291, 124 Stat. 3064 (Dec. 8, 2010).

Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 2 of 16
Agriculture (“Secretary”), on behalf of themselves and a class of similarly situated Pigford claimants, seeking a determination on the merits of their “Pigford claims” and damages for unlawful race-based discrimination in the processing of their applications or in their attempts to apply for participation in federal farm credit or benefit programs between January 1, 1981 and December 31, 1996.
FACTS LEADING TO CAUSE OF ACTION I. USDA’s History of Discrimination Against African American Farmers
1. From January 1, 1981 through December 31, 1996, USDA engaged in systemic and systematic discrimination, from the county level through the federal level, against African American farmers who applied for loans or other credit services and benefit programs through the Farm Service Agency (“FSA”) and its predecessor organizations, the Agricultural Stabilization and Conservation Service (“ASCS”) and the Farmers Home Administration (“FmHA”). See Seventh Amended Class Action Complaint, Pigford v. Glickman, Civ. A. No. 97-cv-1978 (hereinafter “Pigford Compl.”) at ¶¶ 17-20.
2. The FSA, like the FmHA and the ASCS before it, operates through a three-tiered review system consisting of county-level offices and committees, which are reviewed and monitored by state-level offices and committees, which are in turn subject to federal level review in Washington, D.C. by the national office and the National Appeals Division. Id. at ¶ 20. Although the credit and benefit programs are federally-funded programs, the decisions to approve or deny applications for credit or benefits are made locally at the county level by locally elected county committees and local loan officers appointed by those committees. Pigford v. Glickman, 185 F.R.D. 82, 86 (D.D.C. 1999).
3. The county committees, elected by local ranchers and farmers, did not reflect the racial diversity of the communities they served – indeed, nationwide, the African American
2

Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 3 of 16
representation among county commissioners by 1999 (even after the proposed Class Period) was less than 0.5%. Id. at 87.
4. Despite the existence, at least nominally, of state and federal-level review, the local committees were rife with discrimination. As this Court has noted: “African American farmers complain[ed] that county commissioners ha[d] discriminated against them for decades, denying their applications, delaying the processing of their applications or approving them for insufficient amounts . . . .” Pigford, 185 F.R.D. at 87. The Court further found that the delays were so extreme in some locations that “it took three times as long on average to process the application of an African American farmer as it did to process the application of a white farmer.” Id. (citing REPORT - CIVIL RIGHTS AT THE UNITED STATES DEPARTMENT OF AGRICULTURE: A REPORT BY THE CIVIL RIGHTS ACTION TEAM (Feb. 1997) ("CRAT Report")).
5. The discrimination problems were exacerbated by lack of institutional oversight. In 1983, USDA “disbanded its Office of Civil Rights and stopped responding to claims of discrimination.” Id. While there was supposed to be a detailed process for investigating discrimination claims, “[a]ll the evidence developed by the USDA and presented to the Court indicates . . . that this system was functionally nonexistent for well over a decade.” Id. at 88.
6. When African American farmers complained to USDA, their complaints were mismanaged, ignored, or “lost.” In fact, “[i]n some cases, [Office of Civil Rights Enforcement and Adjudication] staff simply threw discrimination complaints in the trash without ever responding to or investigating them.” Id.
7. In December 1996, in response to frequent complaints that its farm credit programs were operating in a discriminatory manner, USDA convened a Civil Rights Action Team to conduct a comprehensive study of its farm loan programs. After an exhaustive study, USDA issued the “CRAT Report,” which concluded that “‘[m]inority farmers have lost
3

Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 4 of 16
significant amounts of land and potential farm income as a result of discrimination’” by USDA entities such as the FSA. Id. (quoting the CRAT Report). The CRAT Report also found that the “process for resolving complaints ha[d] failed” and that “immediate action was needed to clear the backlog of complaints.” Id. II. Pigford v. Glickman
8. In 1997, Timothy Pigford, an African American farmer, filed a class action lawsuit in the United States District Court for the District of Columbia alleging that USDA had discriminated against African American farmers by denying or delaying applications for farm benefit programs and by mishandling discrimination complaints filed with USDA. Pigford v. Glickman, Civ. A. No. 97-cv-1978. His complaint alleged violations of the Fifth Amendment to the United States Constitution, the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691, et. seq., the Administrative Procedure Act, 5 U.S.C. § 706, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Pigford, 185 F.R.D. at 112, aff’d, 206 F.3d 1212 (D.C. Cir. 2000).
9. A second class action suit was filed by Cecil Brewington, alleging similar discrimination by USDA against African American farmers. Brewington v. Glickman, Civ. A. No. 98-cv-1693. On January 6, 1999, this Court consolidated the Pigford and Brewington actions. See Order of Jan. 6, 1999, Civ. A. No. 98-cv-1693, Dkt. 9. The consolidated action is referred to as the Pigford litigation.
10. On January 5, 1999, the Court certified the following class: All African American farmers who (1) farmed, or attempted to farm between January 1, 1981 and December 31, 1996; (2) applied to the United States Department of Agriculture (USDA) during that time period for participation in a federal farm credit or benefit program and who believed that they were discriminated against on the basis of race in USDA’s response to that application; and (3) filed a discrimination complaint on or before July 1, 1997, regarding USDA’s treatment of such farm credit or benefit application.
Pigford, 185 F.R.D. at 92.
4

Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 5 of 16
11. After more than a year of litigation, the parties negotiated a settlement and entered into a Consent Decree to resolve the Pigford litigation. The Consent Decree, which was approved by this Court on April 14, 1999, established a process enabling farmers who had been discriminated against as applicants for, or in their attempts to apply for, farm loans or other credit and benefit programs to obtain an adjudication of their discrimination claims through a two-track dispute resolution mechanism. Under Track A, class members with minimal, or even no, documentary evidence were eligible to receive a cash payment of $50,000, forgiveness of certain debt owed to the USDA, and a tax payment to offset the tax consequences of the liquidated and debt awards. Id. at 95. The Track B option required a higher burden of proof – preponderance of the evidence – but allowed for uncapped damages. Id.
12. As this Court concluded, the Pigford Consent Decree was “a significant first step” in redressing the wrongs that had been heaped upon African American farmers between 1981 and 1996. Id. at 113. III. Late Filing in Pigford v. Glickman
13. More than 22,000 farmers presented their claims for adjudication on the merits under the Pigford Consent Decree, and more than 15,000 farmers received monetary compensation. See Office of the Monitor, http://www.pigfordmonitor.org/stats.
14. However, tens of thousands of additional class members were unable to obtain relief under the Consent Decree because they did not submit completed claims packages by the October 12, 1999 deadline established by the Consent Decree. See Arbitrator’s Ninth Report on the Late-Claim Petition Process (“Arb. Rpt.”), Civ. A. No. 1:97-cv-1978, Dkt. 1214 (Nov. 30, 2005) at 3-4. The Consent Decree did afford farmers who filed late-filing requests after the October 12, 1999 deadline a potential right to proceed with their claims, but only if they filed on or before September 15, 2000 and could meet the “extraordinary circumstances” test established
5

Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 6 of 16
by Section 5(g) of the Consent Decree. See Stipulation and Order of July 14, 2000, Dkt. 303, at 3; Arb. Rpt. at 2-3.
15. Approximately 61,000 claimants submitted late-filing requests under Section 5(g) of the Consent Decree by the September 15, 2000 deadline. Just over 2,700 of them – i.e., only four percent – were permitted to obtain an adjudication on the merits of their claim. More than 7,900 additional claimants submitted late-filing requests under Section 5(g) of the Consent Decree after September 15, 2000. None of these claimants obtained a determination on the merits of their discrimination claims. See Bithell Decl. (June 4, 2009) at 2 available at Exhibit 2 to Certain Plaintiffs’ Motion to Stay the Class Certification Proceedings (June 9, 2009) (Dkt. 66 of Civ. No. 08-mc-0511 (D.D.C.)).
16. On June 18, 2008, the current version of the Food, Conservation, and Energy Act of 2008 (“Farm Bill”) became law.4 Section 14012 of the Farm Bill expressly affords to Pigford claimants who previously had submitted late-filing requests under Section 5(g) of the Consent Decree – but who did not obtain a determination on the merits – the right to bring a civil action in the United States District Court for the District of Columbia to obtain a merits-based determination of their Pigford claims. Farm Bill § 14012(b). Claimants who prevail are entitled to actual damages, id. at § 14012(g), or, alternatively, certain specified liquidated damages, payments in recognition of outstanding loans owed to USDA (if applicable), and certain specified tax relief. Id. at § 14012(f). $100 million was appropriated under the Farm Bill to pay successful Section 14012 claims. § 14012(i)(1).
17. Congress’s intent in enacting Section 14012 of the Farm Bill is clear – to “giv[e] a full determination on the merits for each Pigford claim previously denied that determination.”

4

The Farm Bill was originally passed on May 22, 2008, see Pub. L. No. 110-234, 122 Stat. 923,

but was repealed and re-enacted in full on June 18, 2008. See Pub. L. No. 110-246, 122 Stat. 1651.

6

Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 7 of 16
Farm Bill, § 14012(d). Indeed, the Farm Bill specifically instructs the Court to “liberally construe [§ 14012] so as to effectuate [this] remedial purpose.” Id. During floor debates, thenSenator Barack Obama, a leading sponsor of the legislation, reiterated that the bill was intended “to provide tens of thousands of eligible late Pigford claimants a right to go to court and have their cases heard.” 154 Cong. Rec. S4212-05. Senator Tom Harkin, another key supporter of the legislation, explained that the legislation was intended to ensure that “these claimants who have not had their cases determined on the merits may, in [a] civil action, obtain that determination.” 154 Cong. Rec. S4152-01.
18. On December 8, 2010, President Obama signed the Claims Resolution Act of 2010,5 Section 201 of which established certain additional requirements to protect the integrity of the process for resolving Section 14012 claims in the context of a February 18, 2010 Settlement between a putative class of African American farmers and the Secretary of USDA. The Claims Resolution Act also provided an additional $1.15 billion to pay successful claims, subject to certain conditions. § 201(a), (b).
19. Through this action, Plaintiffs, in reliance on the language and manifest intent of Section 14012 of the Farm Bill and Section 201 of the Claims Resolution Act, seek to obtain redress for the unlawful race-based discrimination they suffered in the processing of their applications or in their attempts to apply for participation in federal farm credit or benefit programs between January 1, 1981 and December 31, 1996.
JURISDICTION 20. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1343, 1346; 42 U.S.C. § 2000d; and Pub. L. No. 110-234, § 14012(b).

5

Pub. L. 111-291, 124 Stat. 3064 (Dec. 8, 2010).

7

Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 8 of 16
VENUE 21. Venue lies in this judicial district pursuant to 28 U.S.C. § 1391(e) and Pub. L. No. 110-234, § 14012(b).
THE PARTIES 22. Plaintiff James Copeland is an African American from Harris County, Georgia who, between January 1, 1981 and December 31, 1996, farmed or attempted to farm land that he and his family owned. Between 1990 and 1992, Mr. Copeland attempted to apply to USDA for an operating loan, but was told repeatedly that the USDA office had lost his applications. Mr. Copeland was subject to racial discrimination in the USDA’s response to his attempt to apply for a loan, and he suffered substantial economic injury as a result of this discrimination. Mr. Copeland complained to the United States Government about the USDA discrimination after January 1, 1981 and on or before July 1, 1997. 23. On information and belief, Mr. Copeland is a member of the Pigford class and a “Pigford claimant” as defined by Section 14012(a)(4) of the Farm Bill. Pursuant to Section 5(g) of the Consent Decree, Mr. Copeland petitioned to participate in the Pigford claims resolution process as a “late-filer,” on or between October 13, 1999 and September 15, 2000. Mr. Copeland was assigned Tracking No. 66581-00 by the Pigford Facilitator. Mr. Copeland’s request was denied by the Pigford Arbitrator, and he has never obtained a determination on the merits of his Pigford claim. 24. Plaintiff Earl Moorer brings a claim on behalf the Estate of his father, John Moorer. John Moorer is a now-deceased African American from White Hall, Alabama who farmed or attempted to farm between January 1, 1981 and December 31, 1996 on land that he owned and/or leased. John Moorer applied for a loan from USDA each year from 1981 to 1984. Each year, his application for a farm loan was denied, or he was provided a loan for less than he
8

Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 9 of 16
had requested. This treatment was due to racial discrimination, and he complained to a USDA official about this treatment, citing white farmers in the area who received better treatment than he did. As a result of this discrimination, John Moorer suffered economic damage.
25. On information and belief, the Estate of John Moorer is a member of the Pigford class and a “Pigford claimant” as defined by Section 14012(a)(4) of the Act. Pursuant to Section 5(g) of the Consent Decree, John Moorer’s Estate, through Earl Moorer, petitioned to participate in the claims resolution process as a “late-filer” on or between October 13, 1999 and September 15, 2000, and was given a Tracking Number of 2788-00. The request was denied by the Arbitrator, and Mr. Moorer’s Estate has never obtained a determination on the merits of her claims.
26. Plaintiff Marshallene McNeil is an African American who, between January 1, 1981 and December 31, 1996, farmed or attempted to farm land her family owned in Camden, Alabama. In 1982, Ms. McNeil went to the FmHA office in Camden, Alabama to request an operating loan, but was told by the administrator of the office that there was no money available for her, and her loan application was denied. This denial was the result of racial discrimination. As a result of her inability to get a loan, Ms. McNeil suffered economic injury. Ms. McNeil complained to the same FmHA official between January 1, 1981 and July 1, 1997, about their treatment of her application.
27. On information and belief, Ms. McNeil is a member of the Pigford class and a “Pigford claimant” as defined by Section 14012(a)(4) of the Farm Bill. Pursuant to Section 5(g) of the Consent Decree, Ms. McNeil petitioned to participate in the Pigford claims resolution process as a “late-filer,” on or between September 16, 2000 and June 18, 2008. Ms. McNeil’s request was denied by the Pigford Arbitrator, and she has never obtained a determination on the merits of his Pigford claim.
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Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 10 of 16
28. Defendant Thomas Vilsack is Secretary of the USDA, and is the federal official currently responsible for the administration of the statutes, regulations, and loan programs which are at issue in this litigation.
CLASS ACTION ALLEGATIONS 29. Plaintiffs bring this Class action pursuant to Fed. R. Civ. P. 23(b)(1)(B) on behalf of themselves and a Class defined as follows: All individuals: (1) who submitted late-filing requests under section 5(g) of the Pigford v.Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree. 30. Numerosity: The Class is composed of approximately 66,000 individuals. The large number of Class members makes “joinder of all members . . . impracticable,” and is sufficient to establish numerosity under Fed. R. Civ. P. 23(a)(1). 31. Commonality: The following are each “questions of law or fact common to the class,” sufficient to establish commonality under Fed. R. Civ. P. 23(a)(2):
a. Class Members share a common interest in ensuring that all successful claimants have an equal opportunity to receive compensation for the discrimination they have suffered.
b. Class Members share a common interest in ensuring that the funds available to pay successful claimants are not limited to the $100 million appropriated by the 2008 Farm Bill.
c. Class Members share a common interest in minimizing the evidentiary burdens and costs, as well as the delays, that a judicial claims process will entail.
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Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 11 of 16
32. Typicality: Plaintiffs' claims are typical of the claims of the Plaintiff Class as all such claims arise out of Section 14012 of the Farm Bill and Defendant’s uniform course of wrongful conduct as described above. This is sufficient to establish typicality under Fed. R. Civ. P. 23(a)(3).
33. Adequacy of Representation: Plaintiffs will fairly and adequately protect the interests of the Members of the Class and have no interests antagonistic to those of the Class. Plaintiffs have retained counsel experienced in the prosecution of complex class actions who will adequately represent the interests of the Class in this litigation. Thus, the requirement of adequacy of representation in Fed. R. Civ. P. 23(a)(4) is met.
34. Limited Fund: This Class action is appropriate for certification as a limited fund class action under Fed. R. Civ. P. 23(b)(1)(B) because (1) the totals of the aggregated liquidated claims and the fund available for satisfying them, set definitely at their maximums, demonstrate the inadequacy of the fund to pay all the claims; (2) the whole of the inadequate fund is devoted to the overwhelming claims; and (3) the claimants identified by a common theory of recovery are treated equitably among themselves.
CLAIMS FOR RELIEF COUNT I
ACTION FOR DETERMINATION ON THE MERITS OF PIGFORD CLAIMS PURSUANT TO § 14012 OF 2008 FARM BILL 35. Plaintiffs repeat and reallege each and every allegation set forth in paragraphs 134 of this Complaint as if fully set forth herein. 36. Pursuant to Section 14012(b) of the Farm Bill, each Plaintiff and each member of the proposed Class is entitled to a determination on the merits of a Pigford claim in this Court. The Court should find, pursuant to Section 14012(b) of the Farm Bill, that each Plaintiff and each member of the proposed Class was the subject of unlawful discrimination by the USDA.
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Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 12 of 16
COUNT II ACTION FOR DAMAGES PURSUANT TO § 14012 OF THE 2008 FARM BILL 37. Plaintiffs repeat and reallege each and every allegation set forth in paragraphs 134 of this Complaint as if fully set forth herein. 38. Pursuant to Sections 14012(g) and 14012(f) of the 2008 Farm Bill, each Plaintiff and each member of the proposed Class alleging discrimination relating to USDA loan programs is entitled either to actual damages or, alternatively, liquidated damages in the amounts set forth in the Farm Bill, discharge of any debt that was incurred under, or affected by, the programs that were the subject of the discrimination claims, and a tax payment in the amount equal to 25 percent of both the liquidated damages and the loan principal discharged.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court: (A) Provide each Plaintiff and Class member a determination on the merits of his or
her claim; (B) Award each Plaintiff and Class member either (a) the actual damages he/she
sustained as a result of discrimination by the USDA; or (b) liquidated damages in the amount of $50,000 for each Plaintiff; or (c) liquidated damages in the amount of $3,000 for non-credit benefit claims; (C) With respect to Plaintiffs and Class members pursuing claims under Section 14012(f)(1), order Defendant to discharge any debts incurred under, or that were affected by, the one or more programs that were the subject of each Plaintiff’s discrimination claims; (D) With respect to Plaintiffs and Class members pursuing claims under Section 14012(f)(1), order Defendant to make a tax payment for each Plaintiff in the
12

Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 13 of 16
amount equal to 25 percent of any liquidated damages and any loan principal discharged; (E) Order Defendant to pay the costs of adjudicating Plaintiffs’ and Class members’ claims, including attorneys’ fees as may be awardable; and (F) Grant such other and further relief that the Court deems to be just and equitable.

Respectfully submitted this 1st day of April, 2011.

/s/ Henry Sanders, Esq. Fayarose Sanders, Esq. CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL, L.L.C. One Union Street Selma, AL 36701 Tel: (334) 875-9264 Fax (334) 875-9853
/s/ Gregorio A. Francis, Esq. Alphonso Michael Espy, Esq. Scott W. Weinstein, Esq. J. Andrew Meyer, Esq. MORGAN & MORGAN, P.A. 20 North Orange Avenue, Suite 1600 Orlando, FL 32801 Tel: (407) 420-1414
/s/ Marc Boutwell, Esq. Charles Edwards, Esq. THE LAW OFFICES OF MARC BOUTWELL, PLLC P.O. Box 956 Lexington, MS 39095 Tel: (662) 834-9029 Fax: (662) 834-3117

/s/ Andrew H. Marks, Esq., D.C. Bar No. 932269 Laurel Pyke Malson, Esq., D.C. Bar. No. 317776 Michael W. Lieberman, Esq., D.C. Bar No. 988835 CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004 Tel: (202) 624-2920 Fax: (202) 628-5116
/s/ Don O. Gleason, Jr., Esq. Michael McHenry, Esq. GLEASON & MCHENRY P.O. Box 7316 Tupelo, MS 38802 Tel: (662) 690-9824 Fax: (662) 690-9826
/s/ Stephen Gowan, Esq. GOWAN LAW OFFICE, PLLC P.O. Box 38 McAdams, MS 39107 Tel: (662) 290-0042 Fax: (662) 290-0042

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Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 14 of 16

/s/ Jimmy S. Calton, Jr., Esq. Jimmy S. Calton, Sr., Esq. LAW OFFICES OF CALTON & CALTON 226 East Broad Street Eufaula, AL 36027 Tel: (334) 687-3563 Fax: (334) 687-3564
/s/ Walter B. Calton, Esq. Attorney at Law 312 East Broad Street Eufaula, AL 36027 Tel: (334) 687-2407 Fax: (334) 687-2466
/s/ Reed Colfax, Esq., D.C. Bar No. 471430 John P. Relman, Esq. Jennifer Klar, Esq. RELMAN & DANE, PLLC 1225 19th Street N.W., Suite 600 Washington, DC 20036-2456 Tel: (202) 728-1888 Fax: (202) 728-0848
/s/ Othello C. Cross, Esq. Jesse L. Kearney, Esq. CROSS & KEARNEY, PLLC 1022 W. 6th Avenue Pine Bluff, AR 71601 Tel: (870) 536-4056 Fax: (870) 536-0216
/s/ James Scott Farrin, Esq. Eric Haase, Esq. LAW OFFICES OF JAMES SCOTT FARRIN 280 South Mangum Street, Suite 400 Durham, NC 27701 Tel: (919) 688-4991 Fax: (919) 688-4468

/s/ Timothy K. Lewis, Esq. Ralph G. Wellington, Esq. Bruce P. Merenstein, Esq. SCHNADER HARRISON SEGAL & LEWIS, LLP Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222 Tel: (202) 419-4216 Fax: (202) 419-3454
/s/ Donald McEachin, Esq. MCEACHIN & GEE LLP 4719 Nine Mile Road Henrico, VA 23223 Tel: (804) 226-4111 Fax: (804) 226-8888
/s/ Harris L Pogust, Esq. Tobias L. Millrood, Esq. POGUST, BRASLOW & MILLROOD, LLC 161 Washington Street, Suite 1520 Conshohocken, PA 19428 Tel: (610) 941-4204 Fax: (610) 941-4245
/s/ Michael A. Rutland, Esq. RUTLAND & JANKIEWICZ LLC 128 N. Orange Ave. Eufaula, AL 36027 Tel: (334) 687-9899
/s/ Kindaka Sanders, Esq. Attorney at Law 209 Broad St. Selma, AL 36701 Tel: (334) 327-1993 Fax: (334) 460-6611

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Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 15 of 16

/s/ Phillip L. Fraas, Esq., D.C. Bar No. 211219 STINSON MORRISON HECKER LLP 1150 18th Street, N.W., Suite 800 Washington, DC 20036-3816 Tel: (202) 572-9904 Fax: (202) 572-9982
/s/ David J. Frantz, Esq., D.C. Bar No. 202853 Brian P. Phelan, Esq. CONLON, FRANTZ & PHELAN, LLP 1818 N Street, N.W., Suite 400 Washington, DC 20036 Tel: (202) 331-7050 Fax: (202) 331-9306
/s/ William Lewis Garrison, Esq. William L. Bross, Esq. Gayle L. Douglas, Esq. HENINGER, GARRISON & DAVIS LLC Post Office Box 11310 2224 1st Avenue North Birmingham, AL 35202 Tel: (205) 326-3336 Fax: (205) 326-3332

/s/ Joseph P. Strom, Jr., Esq. Mario A. Pacella, Esq. Bakari Sellers, Esq. STROM LAW FIRM, LLC 2110 N. Beltline Blvd., Suite A Columbia, South Carolina 29204 Tel: (803) 252-4800 Fax: (803) 252-4801
/s/ Anurag Varma, Esq., D.C. Bar No. 471615 Benjamin G. Chew, Esq. Jude Kearney, Esq. Ramona Quillet, Esq. PATTON BOGGS, LLP 2550 M Street, N.W. Washington, DC 20037 Tel: (202) 457-6490 Fax: (202) 457-6315

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Case 1:08-mc-00511-PLF Document 163 Filed 04/05/11 Page 16 of 16 CERTIFICATE OF SERVICE
I certify that on April 1, 2011, I filed a copy of this Amended Complaint via the ECF system, and sent copies by electronic-mail to the counsel of record in the above-referenced case.
/s/ J. Andrew Meyer, Esq.
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 </s> Case 1:08-mc-00511-PLF Document 170 Filed 05/13/11 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

)

This document relates to:

)

)

ALL CASES

)

)

Misc. No. 08-mc-0511 (PLF)

NOTICE OF AMENDMENT OF EXHIBITS TO MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, CERTIFICATION OF A RULE 23(b)(1)(B) SETTLEMENT CLASS, AND FOR OTHER PURPOSES
Certain Plaintiffs,1 by and through undersigned counsel, hereby inform the Court that

Exhibits 1 and 2 to their Motion for Preliminary Approval of Settlement, Certification of a Rule

23(b)(1)(B) Settlement Class, and for Other Purposes (“Motion for Preliminary Approval”)

(Docket No. 161) have been amended since the filing of their Motion. Revised Exhibit 1,

attached hereto, contains revisions to Paragraphs 11-13, 26, and 28 of, and adds a new Paragraph

37 to, Certain Plaintiffs’ Proposed Order Granting Preliminary Approval of Settlement

Agreement, Certifying a Rule 23(b)(1)(B) Settlement Class, and For Other Purposes

(“Preliminary Approval Order”) (previously Exhibit 1). Revised Exhibit 2, also attached hereto,

includes new language amending and replacing Section V.A.5 of the Parties’ Settlement

Agreement (previously Exhibit 2), addressing circumstances in which: (a) a Claimant has

asserted claims for multiple farming operations; and/or (b) Multiple Claimants have asserted

claims with reference to a single farming operation. Certain Plaintiffs respectfully request that

1

Certain Plaintiffs are Plaintiffs James Copeland, Earl Moorer (on behalf of the estate of John Moorer), and

Marshallene McNeil, on behalf of themselves and the proposed Class they seek to represent.

1

Case 1:08-mc-00511-PLF Document 170 Filed 05/13/11 Page 2 of 2

the Court consider the attached Revised Exhibits 1 and 2 in place of previously noticed Exhibits 1 and 2 when considering their Motion for Preliminary Approval.2

Respectfully submitted,

May 13, 2011

/s/ Andrew H. Marks (D.C. Bar No. 932269) Laurel Pyke Malson (D.C. Bar No. 317776) Michael W. Lieberman (D.C. Bar No. 988835) CROWELL & MORING, LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 Phone: (202) 624-2500 Fax: (202) 628-5116

Attorneys for Certain Plaintiffs

CERTIFICATE OF SERVICE
I certify that on May 13, 2011, I filed a copy of this motion via the ECF system, and sent copies by electronic-mail to the counsel of record in the above-referenced case.

/s/ Michael W. Lieberman

2

Undersigned counsel have conferred with counsel for the Defendant, and the Defendant has indicated its

consent to this filing.

2

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Revised Exhibit No. 1

Case 1:08-mc-00511-PLF Document 170-1 Filed 05/13/11 Page 2 of 17

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

)

This document relates to:

)

)

ALL CASES

)

)

Misc. No. 08-mc-0511 (PLF)

PLAINTIFFS’ REVISED PROPOSED ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, CERTIFYING A
RULE 23(b)(1)(B) SETTLEMENT CLASS, AND FOR OTHER PURPOSES The Court has reviewed and considered Plaintiffs’ Motion for Preliminary Approval of Settlement Agreement, Certification of a Rule 23(b)(1)(B) Settlement Class, and for Other Purposes (“Motion”), including the exhibits thereto, and has reviewed and considered the terms and conditions of the Settlement Agreement dated February 18, 2010, revised as of May 13, 2011 (the “Settlement Agreement”). Upon consideration of these submissions and the entire record herein, with good cause for this Order having been shown, it is hereby ORDERED that the terms of the Settlement Agreement are preliminarily approved, subject to further consideration thereof at the Final Approval Hearing provided for below. The Court finds that the proposed Settlement Agreement is within the range of reasonableness so that Notice of the proposed Settlement should be sent to the Class as provided in Paragraphs 16-18 of this Order.

Case 1:08-mc-00511-PLF Document 170-1 Filed 05/13/11 Page 3 of 17
CERTIFICATION OF THE SETTLEMENT CLASS 1. For purposes of settlement only, and pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(1)(B), the action styled as In re Black Farmers Discrimination Litig., Misc. No. 08-mc-0511 (PLF) (D.D.C.), is conditionally certified as a class action on behalf of the following persons (collectively, the “Class” and each member of the Class as a “Class Member”), effective upon Final Approval of the Settlement Agreement: All individuals: (1) who submitted late-filing requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree. Based on the Court’s review of the Motion and supporting materials, the Court finds that the proposed Class satisfies Rules 23(a) and 23(b)(1)(B). 2. The Court finds that the following Representative Plaintiffs will fairly and adequately protect the interests of the Class and therefore conditionally appoints them as representatives of the Class, pursuant to Federal Rule of Civil Procedure 23(a)(4):
James Copeland 3 Effingham Court Columbus, GA 31909 Earl Moorer, on behalf of the Estate of John Moorer 292 Benton Rd. Lowndesboro, AL 36752 Marshallene McNeil 472 Hwy 41 North Camden, AL 36726
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3. For purposes of effectuating the Settlement Agreement, the following individuals
are conditionally appointed Lead Class Counsel:
Andrew H. Marks, Esq. CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (T): 202-624-2500 (F): 202-628-5116
Henry Sanders, Esq. CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL, LLC One Union Street Selma, AL 36701 (T): 334-875-9264 (F): 334-875-9853
Gregorio A. Francis, Esq. MORGAN & MORGAN, P.A. 20 North Orange Avenue, Suite 1600 Orlando, FL 32801 (T): 407-420-1414
These Lead Class Counsel are responsible for carrying out the duties of Lead Class Counsel set
forth in the Settlement Agreement.
4. Pursuant to Federal Rule of Civil Procedure 23(g), for purposes of effectuating
the Settlement Agreement, the following individuals are conditionally appointed as Class
Counsel:
Henry Sanders, Esq.** Fayarose Sanders, Esq.** CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL, LLC One Union Street Selma, AL 36701 (T): 334-875-9264 (F): 334-875-9853
** Indicates membership on Plaintiffs’ Steering Committee
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Case 1:08-mc-00511-PLF Document 170-1 Filed 05/13/11 Page 5 of 17
David Frantz, Esq.** Brian P. Phelan, Esq. CONLON, FRANTZ & PHELAN, LLP 1818 N Street, N.W., Suite 400 Washington, DC 20036 (T): 202-331-7050 (F): 202-331-9306
Othello C. Cross, Esq.** Jesse L. Kearney, Esq. CROSS & KEARNEY, PLLC 1022 W. 6th Avenue Pine Bluff, AR 71601 (T): 870-536-4056 (F): 870-536-0216
Andrew H. Marks, Esq.** Laurel Pyke Malson, Esq.** Michael W. Lieberman, Esq. CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004 (T): 202-624-2500 (F): 202-628-5116
Don O. Gleason, Jr., Esq. Michael McHenry, Esq. GLEASON & MCHENRY P.O. Box 7316 Tupelo, MS 38802 (T): 662-690-9824 (F): 662-690-9826
Stephen Gowan, Esq. GOWAN LAW OFFICE, PLLC P.O. Box 38 McAdams, MS 39107 (T): 662-290-0042 (F): 662-290-0042
4

Case 1:08-mc-00511-PLF Document 170-1 Filed 05/13/11 Page 6 of 17
William Lewis Garrison, Esq. William L. Bross, Esq. Gayle L. Douglas, Esq. HENINGER, GARRISON & DAVIS LLC P.O. Box 11310 2224 – 1st Avenue North Birmingham, AL 35202 (T): 205-326-3336 (F): 205-326-3332
Kindaka Sanders, Esq. Attorney at Law 209 Broad Street Selma, AL 36701 (T): 334-327-1993 (F): 334-460-6611
Jimmy S. Calton, Jr., Esq. Jimmy S. Calton, Sr., Esq. LAW OFFICES OF CALTON & CALTON 226 East Broad Street Eufaula, AL 36027 (T): 334-687-3563 (F): 334-687-3564
James Scott Farrin, Esq.** Eric Haase, Esq. LAW OFFICES OF JAMES SCOTT FARRIN 280 South Mangum Street, Suite 400 Durham, NC 27701 (T): 919-688-4991 (F): 919-688-4468
Marc Boutwell, Esq. Charles Edwards, Esq. THE LAW OFFICES OF MARC BOUTWELL, PLLC P.O. Box 956 Lexington, MS 39095 (T): 662-834-9029 (F): 662-834-3117
5

Case 1:08-mc-00511-PLF Document 170-1 Filed 05/13/11 Page 7 of 17
Donald McEachin, Esq. MCEACHIN & GEE LLP 4719 Nine Mile Road Henrico, VA 23223 (T): 804-226-4111 (F): 804-226-8888
Gregorio A. Francis, Esq.** Scott W. Weinstein, Esq.** Alphonso Michael Espy, Esq. J. Andrew Meyer, Esq. MORGAN & MORGAN, P.A. 20 North Orange Avenue, Suite 1600 Orlando, FL 32801 (T): 407-420-1414
Anurag Varma, Esq. Benjamin G. Chew, Esq. Jude Kearney, Esq. Ramona Quillet, Esq. PATTON BOGGS, LLP 2550 M Street, N.W. Washington, DC 20037 (T): 202-457-6490 (F): 202-457-6315
Harris L. Pogust, Esq.** Tobias L. Millrood, Esq. POGUST, BRASLOW & MILLROOD 161 Washington Street, Suite 1520 Conshohocken, PA 19428 (T): 610-941-4204 (F): 610-941-4245
Reed Colfax, Esq. John P. Relman, Esq. Jennifer Klar, Esq. RELMAN & DANE, PLLC 1225 – 19th Street N.W., Suite 600 Washington, DC 20036-2456 (T): 202-728-1888 (F): 202-728-0848
6

Case 1:08-mc-00511-PLF Document 170-1 Filed 05/13/11 Page 8 of 17
Michael A. Rutland, Esq. RUTLAND & JANKIEWICZ, LLC 128 N. Orange Ave. Eufaula, AL 36027 (T): 334-687-9899
Phillip L. Fraas, Esq.** STINSON MORRISON HECKER LLP 1150 – 18th Street N.W. #800 Washington, DC 20036 (T): 202-572-9904 (F): 202-572-9982
Joseph P. Strom, Jr., Esq.** Mario A. Pacella, Esq. Bakari Sellers, Esq. STROM LAW FIRM, LLC 2110 N. Beltline Blvd., Suite A Columbia, SC 29204 (T): 803-252-4800 (F): 803-252-4801
Walter B. Calton, Esq. Attorney at Law 312 East Broad Street Eufaula, AL 36027 (T): 334-687-2407 (F): 334-687-2466
These Class Counsel are responsible for carrying out the duties of Class Counsel as set forth in
the Settlement Agreement.
5. The certification of the Class, appointment of Representative Plaintiffs as
representatives of the Class, and appointment of Class Counsel, Lead Class Counsel, and the
Plaintiffs’ Steering Committee are solely for the purposes of effectuating the Settlement
Agreement. If the Settlement Agreement is terminated or is not consummated for any reason,
the foregoing certification of the Class, appointment of the Representative Plaintiffs as
representatives of the Class, and appointment and designation of Class Counsel, Lead Class
Counsel, and the Plaintiffs’ Steering Committee, shall be void and of no effect and both
7

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Plaintiffs and the Secretary of the United States Department of Agriculture (the “Defendant”) (collectively “the Parties”) shall be returned to the status each occupied before entry of this Order without prejudice to any legal argument that any of the Parties to the Settlement Agreement might have asserted but for the Settlement Agreement.
INJUNCTION AGAINST FILING OF NEW AND AMENDED ACTIONS 6. All members of the prospective Class, and any other person, representative, or entity, are hereby barred and enjoined from: (i) filing, commencing, or intervening in any claim, lawsuit, arbitration, administrative, regulatory or other proceeding arising out of Section 14012 of the Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-234 and/or 110-246, (“Section 14012”), and (ii) organizing or soliciting the participation of any members of the Settlement Class into a separate class for the purposes of pursuing a purported class action arising out of Section 14012 (including by seeking to amend a pending complaint to include class allegations, or by seeking class certification in a pending action). The Court finds that the issuance of this injunction is necessary and appropriate in aid of the Court's jurisdiction over the action and to protect and effectuate the Court's review of the Settlement. 7. All proceedings in the above-captioned Consolidated Action, other than that such as may be necessary to carry out the terms and conditions of the Settlement Agreement or the responsibilities thereto, are stayed and suspended until further Order of this Court.
APPROVAL OF THE COST CAP FOR IMPLEMENTATION COSTS 8. The “Cost Cap,” as defined in Section II.I of the Settlement Agreement, is set at $35,000,000. 9. Class Counsel may move for the payment of up to an additional $3,500,000 from 2008 Funds to pay for reasonable additional fees and costs above the Cost Cap incurred by the
8

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Track A Neutrals, the Track B Neutrals, and/or the Claims Administrator arising out of the reporting requirements and/or the audit provisions of Section 201(h) of Pub. L. 111-291, 124 Stat. 3064 (Dec. 8, 2010).
APPROVAL OF CLAIMS ADMINISTRATOR AND NEUTRALS 10. Epiq Systems, Inc. is approved to serve as Claims Administrator for purposes of effectuating the Settlement Agreement and shall fulfill the roles designated for the Claims Administrator in the Settlement Agreement. 11. Upon further motion of the Parties, and prior to or concurrent with Final Approval of the Settlement Agreement, the Court will approve a Track A Neutral to fulfill the role designated for the Track A Neutral in the Settlement Agreement. 12. Upon further motion of the Parties, and prior to or concurrent with Final Approval of the Settlement Agreement, the Court will approve a Track B Neutral to fulfill the role designated for the Track B Neutral in the Settlement Agreement. 13. Each individual designated to serve as a Track A Neutral or Track B Neutral must notify Lead Class Counsel of their designation. Within ten (10) days of such notification, Lead Class Counsel shall inform the Court of the names of any individuals so designated so that the Court may administer an oath to each individual that he or she will fulfill his or her respective role faithfully, fairly, and to the best of his or her ability. No individual designated as a Track A or Track B Neutral may take any action in that role before taking the aforementioned oath administered by the Court. 14. The Claims Administrator, Track A Neutral, and Track B Neutral shall have no liability to any claimants, including both Class Members and other individuals seeking to participate in the claims program provided for in the Settlement Agreement and approved by this
9

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Court. Accordingly, these entities, as well as their officers, employers, employees, independent contractors, vendors, subcontractors, shareholders, and agents, shall not be subject to any suits, claims, actions, or liabilities that may be asserted by any such claimants.
15. Payments to the Claims Administrator, the Track A Neutral, and the Track B Neutral are Implementation Costs that shall be paid in accordance with Sections IV.C, IV.D, IV.E, IV.F, and IV.H of the Settlement Agreement upon application of Class Counsel and approval by this Court. Such payments shall not, in total, exceed the Cost Cap.
FORM AND TIMING OF NOTICE 16. The Court finds the proposed Notice Program (Ex. 5, Att. 3 to Motion) to be appropriate for the Class, practicable under the circumstances, and designed to fairly ensure the protection of the interests of absent parties who are to be bound by it. When completed, it shall constitute due and sufficient notice of the Settlement Agreement and the Final Approval Hearing to all persons affected by and/or eligible to participate in the remedial processes set forth in the Settlement Agreement or the Final Approval Hearing, and therefore will satisfy the requirements of due process and the Federal Rules of Civil Procedure. 17. Pursuant to Federal Rule of Civil Procedure 23(e)(1), no later than thirty (30) days after entry of this Order, the Plaintiffs shall cause copies of the forms of Notice proposed in the Notice Program to be disseminated in the manner delineated in the Notice Program. 18. The costs of implementing the Notice Program shall be paid out of the “interim Implementation Costs” authorized in Sections IV.C and IV.D of the Settlement Agreement. 19. No later than twenty (20) days prior to the Final Approval Hearing, the Notice Provider shall file with the Court a declaration confirming compliance with the Notice procedures approved by this Court.
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CONTINGENT ATTORNEYS’ FEES 20. For purposes of effectuating the Settlement Agreement, a “Track A Individual Counsel Fee” (as defined in the Settlement Agreement) may not exceed 2% of a Class Member’s Final Track A Award. 21. For purposes of effectuating the Settlement Agreement, a “Track B Fee” (as defined in the Settlement Agreement) may not exceed 8% of a Class Member’s Final Track B Award.
PRELIMINARY APPROVAL OF THE FEE AWARD 22. The Court finds that a Fee Award (as defined in the Settlement Agreement) of between 4.1% and 7.4% of the Fee Base (as defined in the Settlement Agreement) appears to be a fair, reasonable, and adequate range for a Fee Award in this action, and this range therefore is preliminarily approved for purposes of providing Notice to the Class.
EXISTING RETAINER AGREEMENTS 23. No counsel who is designated as Class Counsel by this Order shall seek to enforce the terms of any existing contingency fee arrangements with Class Members. 24. Any counsel who is not designated as Class Counsel and who is retained by a member of the Class to represent such an individual for a Track A claim under the Settlement Agreement shall be limited to a 2% contingency fee. 25. Any counsel who is retained by a member of the Class to represent such an individual for a Track B claim under the Settlement Agreement shall be limited to an 8% contingency fee.
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FINAL APPROVAL HEARING: RIGHT TO APPEAR AND OBJECT 26. A Final Approval Hearing shall take place before the Court on September 1, 2011, at 9:30 a.m. before the Honorable Paul L. Friedman, at the United States District Court for the District of Columbia, 333 Constitution Avenue, N.W., Washington, D.C. 20001 to determine whether the Settlement Agreement should be finally approved by this Court as fair, reasonable, and adequate. 27. The Court may finally approve the Settlement Agreement at or after the Final Approval Hearing with any appropriate modifications agreed to by the Parties and without further notice to the Class Members. 28. Any Class Member wishing to raise objections to the Settlement Agreement that the Court may consider before Final Approval of the Settlement Agreement must adhere to the following process for submitting such objections:
a. Any member of the Class may present written objections explaining why the Settlement Agreement should not be approved as fair, reasonable, and adequate, or why attorneys’ fees and expenses to Class Counsel should not be awarded in the amounts requested. Any Class Member who wishes to object to any aspect of the Settlement Agreement must, no later than July 18, 2011, file a written statement of the objection(s) with the Court and serve such objection(s) on Lead Class Counsel and Defendant’s Counsel either by (a) ECF filing with the Court or (b) first-class mail plus fax and/or electronic mail. The written statement of the objection(s) must include (1) a statement explaining the basis for the objector’s belief that he or she is a Class Member and eligible for relief under the Settlement
12

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Agreement; (2) a detailed statement of the Class Member’s objection(s), as well as the specific reasons, if any, for each objection, including any evidence and legal authority the Class Member wishes to bring to the Court’s attention and any evidence the Class Member wishes to introduce in support of his or her objection(s); (3) the Class Member’s name, address, and telephone number; and (4) any other supporting papers, materials, or briefs the Class Member wishes the Court to consider when reviewing the objection. b. Class Members may raise an objection either on their own or through an attorney hired at their own expense. If a Class Member hires an attorney to represent him or her for purposes of filing an objection, the attorney must: (1) file a notice of appearance with the Clerk of Court no later than August 2, 2011; and (2) serve a copy of the notice on Lead Class Counsel and Defendant’s Counsel by (a) ECF filing with the Court or (b) first-class mail plus either fax and/or electronic mail by August 2, 2011 c. Class Members, or their attorneys, who wish to appear at the Fairness Hearing must file with the Court and serve on Lead Class Counsel and Defendant’s Counsel, by (1) ECF filing with the Court or (2) first-class mail plus either fax and/or electronic mail, by August 2, 2011 a notice of their intention to appear at the Fairness Hearing. d. Any Class Member who fails to comply with the provisions of the preceding subsections shall waive and forfeit any and all rights he or she may have to object to the Settlement Agreement, and shall be bound by all
13

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the terms of this Settlement Agreement and by all proceedings, orders, and

judgments in the litigation.

29. The Court may adjourn the Final Approval Hearing, or any subsequent hearings,

including the consideration of the application for attorneys’ fees, costs, and expenses, without

any additional notice to putative Class Members other than an announcement in open court.

ORDER REGARDING LISTS AND MATERIAL RECEIVED FROM THE PIGFORD FACILITATOR

30. For the purpose of allowing Lead Class Counsel to fulfill its duties under Sections

VIII.A.3 and VIII.A.4 of the Settlement Agreement, the Pigford Facilitator is hereby directed to

provide to Lead Class Counsel a current version of the Pigford Timely 5(g) List, the Pigford

Participants List, and the Pigford Opt-Out List (collectively, the “Pigford Lists”), and copies of

all late-filing requests and all other available information and correspondence regarding the late-

filing status of Class Members, including any lists prepared by the Pigford Facilitator reflecting

such status (collectively, “5(g) Communications”).

31.

The Pigford Lists and 5(g) Communications may be used by Class Counsel or

other counsel only for the purposes set forth in the Settlement Agreement. Accordingly,

a. Counsel other than Class Counsel may not use the Pigford Lists and/or

5(g) Communications to communicate with individuals unless such

individuals were represented by the contacting counsel prior to disclosure

of the list;

b. Class Counsel or other counsel may use the Pigford Lists and/or 5(g)

Communications to determine whether a particular individual is eligible to

pursue a claim in the non-judicial claims process delineated in Section V

of the Settlement Agreement;

14

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c. Upon request, Lead Class Counsel shall provide verification to a claimant under the Settlement Agreement and, if applicable, his or her counsel, that the claimant’s name appears on the Pigford Lists;
d. Upon request, Lead Class Counsel shall transmit to each claimant and his or her counsel within thirty (30) days of such request all 5(g) Communications regarding that claimant, provided that the claimant or his or her counsel has provided written certification in writing that he or she will comply with the terms of this Order and other protective orders entered by this Court;
e. No information in the Pigford Lists and/or 5(g) Communications will be disclosed by Class Counsel or other counsel to any other person or entity, including any farmers’ advocacy organizations, for recruitment, recruitment-related, or any other purposes;
f. Lead Class Counsel shall transmit an electronic copy of the Pigford Lists to all Class Counsel within ten (10) days of receipt of such lists from the Pigford Facilitator;
g. Each copy of the Pigford Lists provided to Class Counsel shall be stamped “PRODUCED SUBJECT TO PROTECTIVE ORDER;”
32. Nothing in this Order shall restrict in any way the ability of Class Counsel in Pigford v. Glickman to fulfill their duties as Class Counsel in that action; and
33. Nothing in this Order shall restrict in any way the Defendant’s use of the Pigford Lists or 5(g) Communications.
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34. This Court’s Order on December 23, 2008, entitled “Protective Order Regarding ‘5(g) List’” (Docket No. 34) is hereby withdrawn.
OTHER PROVISIONS 35. The Parties are authorized to communicate with putative Class Members regarding the provisions of the Settlement Agreement so long as such communications are not inconsistent with the Settlement Agreement. The Secretary shall refer to the toll-free telephone number operated by the Claims Administrator any inquiries from putative Class Members about claims to be filed under the Settlement Agreement. 36. Neither the fact of settlement, nor the Settlement Agreement, nor any provision therein, nor any negotiations, statements, or proceedings in connection therewith, shall be construed as, or be deemed to be evidence of, an admission or concession on the part of any of the Representative Plaintiffs, Class Counsel, any putative Class Members, the Secretary, or the United States of any liability or wrongdoing by them, or that the claims and defenses that have been, or could have been, asserted in In re Black Farmers Discrimination Litigation were or were not meritorious. 37. Class Counsel shall promptly bring to the attention of the USDA Inspector General and the Department of Justice information that they receive relating to potential scams on claimants and/or misrepresentations being made to claimants relating to the claims process or the relief available to claimants under the Settlement Agreement. SO ORDERED.
______________________________________ PAUL L. FRIEDMAN United States District Judge DATE: ____________, 2011
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Revised Exhibit No. 2

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 2 of 110

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

Misc. No. 08-mc-0511 (PLF)

SETTLEMENT AGREEMENT
February 18, 2010 (Revised and Executed as of May 13, 2011)

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 3 of 110
TABLE OF CONTENTS
I. RECITALS........................................................................................................................ 1 II. DEFINITIONS.................................................................................................................. 3 III. THE SETTLEMENT CLASS ......................................................................................... 9 IV. DISMISSAL AND FUNDING ......................................................................................... 9 V. NON-JUDICIAL CLAIMS PROCESS ........................................................................ 15
A. GENERAL REQUIREMENTS ............................................................................ 15 B. REVIEW OF THE CLAIM SUBMISSION AND THE CLASS MEMBERSHIP
DETERMINATION ............................................................................................. 19 C. TRACK A ............................................................................................................. 22 D. TRACK B ............................................................................................................. 25 E. DISTRIBUTION OF CLAIM DETERMINATIONS AND SETTLEMENT
FUNDS ................................................................................................................. 27 VI. OMBUDSMAN ............................................................................................................... 32 VII. ACCELERATIONS AND FORECLOSURES ............................................................ 32 VIII. THE DUTIES OF CLASS COUNSEL ......................................................................... 33 IX. PROCEDURES GOVERNING APPROVAL OF THIS AGREEMENT ................. 36 X. ATTORNEYS’ FEES, EXPENSES, AND COSTS...................................................... 38 XI. CONDITIONS THAT RENDER AGREEMENT VOID OR VOIDABLE .............. 39 XII. EFFECT OF AGREEMENT IF VOIDED................................................................... 40 XIII. RELEASES ..................................................................................................................... 41 XIV. NO ADMISSION OF LIABILITY ............................................................................... 42 XV. CONTACT INFORMATION FOR THE SECRETARY AND FSA......................... 43 XVI. CONTINUING JURISDICTION.................................................................................. 43 XVII. INTEGRATION ............................................................................................................. 43 XVIII. MODIFICATION ........................................................................................................... 44 XIX. DUTIES CONSISTENT WITH LAW AND REGULATIONS ................................. 44 XX. DUTY TO DEFEND....................................................................................................... 44 XXI. HEADINGS ..................................................................................................................... 44 XXII. SEVERABILITY ............................................................................................................ 44 XXIII. COUNTERPARTS ......................................................................................................... 44
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EXHIBITS
EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G EXHIBIT H EXHIBIT I EXHIBIT J

"TRACK A" CLAIM DETERMINATION FORM "TRACK B" CLAIM DETERMINATION FORM CLAIM FORM AUTHORIZATION TO DISCLOSE DEBT INFORMATION FORM QUARTERLY DISBURSEMENT REPORTING FORM YOUR CLAIM PACKAGE IS NOT COMPLETE YOU HAVE NOT SUBMITTED YOUR CLAIM ON TIME YOU ARE NOT A CLASS MEMBER QUARTERLY CLAIM DETERMINATION REPORTING FORM INTERIM LETTER TO APPROVED CLAIMANTS

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SETTLEMENT AGREEMENT
This Settlement Agreement (“Agreement”) is entered into between the Signatory Plaintiffs, by and through Signatory Plaintiffs’ Counsel, and the Secretary of the U.S. Department of Agriculture (“the Secretary” or “USDA”), by and through the Secretary’s Counsel, to resolve, fully and forever, the claims raised or that could have been raised in the cases consolidated in In re Black Farmers Discrimination Litigation, No. 08-mc-511 (D.D.C.), including, but not limited to, the claims asserted under Public Law No. 110-234 and/or 110-246, § 14012 (2008).
I. RECITALS
A. In 1997, a putative class of African-American farmers brought suit against USDA under, inter alia, the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-1691f, for alleged discriminatory actions in the acquisition of farm credit, credit servicing, and non-credit farm benefits. This case was called Pigford v. Glickman, No. 97-1978 (D.D.C.) (“Pigford ”).
B. On January 5, 1999, the Court in Pigford certified the following Class pursuant to Federal Rule of Civil Procedure 23(b)(3):
All African American farmers who (1) farmed, or attempted to farm, between January 1, 1981 and December 31, 1996; (2) applied to [USDA] during that time period for participation in a federal farm credit or benefit program and who believed that they were discriminated against on the basis of race in USDA’s response to that application; and (3) filed a discrimination complaint on or before July 1, 1997, regarding USDA’s treatment of such farm credit or benefit application.
C. After notice and an opportunity to be heard by all Pigford Class Members, on April 14, 1999, the Court approved the terms of a Consent Decree which provided the Class Members with a choice of non-judicial processes (i.e., “Track A” or “Track B”) for resolving their discrimination claims.
D. The Pigford Consent Decree directed that Pigford Class Members who did not opt out of the Class would have 180 days from entry of the Decree in which to submit completed claim packages. An extension of this deadline until September 15, 2000, was available under Section 5(g) of the Consent Decree (“Section 5(g)”), but only where a Class Member could show that his or her late filing was due to “extraordinary circumstances” beyond the Class Member’s control.
E. Approximately 20,000 individuals filed claims under the Pigford Consent Decree within the 180-day deadline, which was October 12, 1999. On or after October 1

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 6 of 110
13, 1999, and on or before September 15, 2000, approximately 61,000 additional individuals sought to participate in the Decree’s claim resolution processes pursuant to Section 5(g). Approximately 2,700 of these individuals were deemed to satisfy the “extraordinary circumstances” test and were permitted to participate in the claim resolution processes. Between September 16, 2000, and June 18, 2008, thousands of additional individuals unsuccessfully sought to participate.
F. Notwithstanding that more than 60,000 individuals were denied participation under the Pigford Consent Decree, and if Pigford Class Members, were bound by the Decree and deemed to have waived and released all claims against USDA that were or could have been raised in Pigford, on May 22, 2008, and again on June 18, 2008, Congress created a new cause of action in Section 14012 of the Food, Conservation, and Energy Act of 2008 for such individuals.
G. Section 14012(i)(1) designates $100,000,000 to pay meritorious Section 14012 claims.
H. Section 14012(d) provides that “[i]t is the intent of Congress that [Section 14012] be liberally construed so as to effectuate its remedial purpose of giving a full determination on the merits for each Pigford claim previously denied that determination.”
I. Section 14012(f) further provides for “expedited resolutions” whereby a person filing a complaint under Section 14012 “may seek liquidated damages of $50,000, discharge of the debt that was incurred under, or affected by, the 1 or more programs that were the subject of the 1 or more discrimination claims that are the subject of the person’s complaint, and a tax payment in the amount equal to 25 percent of the liquidated damages and loan principal discharged[;]” while Section 14012(g) provides an action whereby a plaintiff may seek “actual damages sustained.”
J. On November 30, 2010 and December 8, 2010 respectively, Congress passed and the President signed into law Pub. L. 111-291, which provided an additional $1,150,000,000 “to carry out the terms of [this] Settlement Agreement.”
K. As of January 1, 2011, more than 40,000 plaintiffs had filed individual claims under § 14012 in 23 complaints in the U.S. District Court for the District of Columbia, which have been consolidated under this caption in the Consolidated Case.
L. In order to bring the Consolidated Case to a close FOREVER and FINALLY, the Parties have determined to settle the Consolidated Case, including all claims that the proposed Class and Class Members have brought or could have brought in the 2

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Consolidated Case, and including all claims that have been or could have been brought under Section 14012.
M. The Signatory Plaintiffs believe that the terms of this Agreement are fair, reasonable, and adequate; that this Agreement provides substantial benefits to the proposed Class and the Class Members; and that settlement of the Consolidated Case on the terms set forth in this Agreement is in the best interests of the proposed Class and the Class Members. Signatory Plaintiffs recognize that the amount of the funding for the Settlement may not be sufficient to provide recovery in the full amount contemplated for successful Claimants by Section 14012, and that the amount actually recovered by each successful Claimant will depend on the amount of funding appropriated and the number of successful Class Members.
N. The Secretary expressly denies any wrongdoing, as alleged in the Consolidated Case or otherwise, and does not admit or concede any actual or potential fault, wrongdoing or liability in connection with any facts or claims that have been or could have been alleged in the Consolidated Case. Nonetheless, the Secretary considers it desirable to settle the Consolidated Case on the terms set forth in this Agreement because it will avoid disruption to USDA due to the pendency and defense of the Consolidated Case, and it will avoid the substantial expense, burdens, and uncertainties associated with litigation of the Consolidated Case.
O. Accordingly, the purpose of this Agreement is to make a full, complete, and final resolution of all claims and causes of action that have been or could have been asserted against the Secretary by the proposed Class and the Class Members in the Consolidated Case arising out of the conduct alleged therein.
P. NOW, THEREFORE, in reliance on the mutual promises, covenants, releases, and obligations as set out in this Agreement, and for good and valuable consideration, the Parties hereby stipulate and agree to resolve all claims that were or could have been at issue in this matter.
II. DEFINITIONS
Unless otherwise noted, as used in this Agreement:
A. “2008 Funds” are the funds ($100,000,000) designated by Congress in Public Law No. 110-234 and/or 110-246, § 14012(i)(1) (2008).
B. “2010 Funds” are the funds ($1,150,000,000) designated by Congress in Public Law No. 111-291, § 201 (2010).
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C. A “Claimant” is any individual who submits a claim and/or seeks an award under this Agreement.
D. The “Claim Deadline” is 180 calendar days from the Final Approval Date.
E. A “Claim Determination” is the binding and final result of Track A and Track B and represents whether, and what amount, a Class Member is eligible to receive as a result of the Non-Judicial Claims Process.
F. The “Claims Administrator” is an administrator approved by the Court and hired by Lead Class Counsel to determine whether individual claimants are members of the Class, to make payments to meritorious Class Members and counsel in accordance with this Agreement, and to conduct other duties as assigned to the Claims Administrator under this Agreement.
G. “Common Benefit Fees” are reasonable attorneys’ fees, expenses, and costs for the work Class Counsel perform on behalf of the Class as a whole both before and after execution of this Agreement, including negotiation of this Agreement, and the work Class Counsel agrees to perform on behalf of the Class as a whole as set forth in this Agreement. Common Benefit Fees do not include Track A Individual Counsel Fees, Track B Fees, or fees for work performed on behalf of individual Class Members who prevail under Track B.
H. “Consolidated Case” refers to the complaints consolidated in In re Black Farmers Discrimination Litigation, No. 08-mc-511 (D.D.C.).
I. The “Cost Cap” is $35,000,000, and represents the maximum amount of Implementation Costs that Class Counsel may pay out of the funds provided by the Secretary under this Agreement; provided, however, that upon application of Class Counsel, the Court may approve the payment of up to $3,500,000 out of the 2008 Funds in reasonable additional fees and costs above the Cost Cap incurred by the Track A Neutrals, the Track B Neutrals, and/or the Claims Administrator arising out of the reporting requirements and/or the audit provisions of Section 201(h) of Pub. L. No. 111-291.
J. “Designated Account” means a bank account, set up by Class Counsel and held for the benefit of the Class, at a Designated Bank that is (1) insured by the Federal Deposit Insurance Corporation up to the applicable limits, (2) a segregated trust account that is not subject to claims of a bank’s creditors, or (3) invested in U.S. Treasury securities.
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K. “Designated Bank” means a bank that has a Veribanc (www.veribanc.com) rating of Green with three stars and one for which neither the bank nor any of its senior officers appear in the Excluded Parties List System (www.epls.gov), which is a list of entities and individuals suspended or debarred from doing business with the federal government.
L. “Effective Date” is the date upon which, if the Agreement is not voided under Section XI, an order providing final approval of this Agreement under Federal Rule of Civil Procedure 23(e) becomes non-appealable, or, in the event of any appeals, upon the date of final resolution of said appeals. When this Agreement refers to the date on which the Agreement became “Effective,” such date is the Effective Date.
M. “Execution Date” is March 23, 2011.
N. “Fee Award” is the total amount approved by the Court for the payment of Common Benefit Fees and Track B Fees.
O. “Fee Base” is the sum of the 2008 Funds plus any 2010 Funds minus $22,500,000.
P. “FSA” is the Farm Service Agency, an agency of USDA.
Q. “Final Approval Date” is the date on which the Court enters an order providing final approval of this Agreement under Federal Rule of Civil Procedure 23(e).
R. “Implementation Costs” are the Court-approved administrative costs associated with implementing this Agreement, including the fees and costs of the Track A and Track B Neutrals, the Claims Administrator, costs incurred under Section VIII.A.3, and the costs necessary to provide notice of this Agreement to the Class. With the exception of the costs incurred under Section VIII.A.3, Implementation Costs do not include (1) attorneys’ fees, costs, and expenses, (2) the costs and expenses associated with preparing and/or submitting claims on behalf of individual Claimants, (3) the fees, expenses, and costs of the Ombudsman (“Ombudsman Costs”), and (4) costs and expenses incurred by Class Counsel in the performance of their duties under this Agreement.
S. “Individual Counsel” are counsel, other than Class Counsel, retained by Claimants to represent them in the Non-Judicial Claims Process.
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T. “Late-Filing Request” is a written request to the Court, the Pigford Facilitator, the Pigford Monitor, the Pigford Adjudicator, or the Pigford Arbitrator seeking to participate in the claims resolution processes in the Pigford Consent Decree.
U. “Multiple Claimants” are partners, shareholders, or family members operating a single farming operation.
V. “Ombudsman Costs” are fees, costs, and expenses paid to the Ombudsman out of the 2008 Funds, subject to approval by the Court, for performance of his or her duties under this Agreement.
W. “Parties” means the Signatory Plaintiffs and the Secretary.
X. “Pigford” means Pigford v. Glickman, Nos. 97-1978, 98-1693 (D.D.C.).
Y. “Pigford Consent Decree” is the April 14, 1999 Consent Decree entered in Pigford.
Z. “Pigford Opt-Out List” is a list maintained or prepared by the Pigford Facilitator that identifies those individuals who the Pigford Facilitator has determined opted out of the Pigford Consent Decree pursuant to Section 2(b) of the Decree.
AA. “Pigford Participants List” is a list maintained or prepared by the Pigford Facilitator that identifies those individuals who the Pigford Facilitator has determined (1) submitted a claim under the Pigford Consent Decree on or before October 12, 1999, or (2) submitted a Late-Filing Request under 5(g) of the Pigford Consent Decree after October 12, 1999, which was determined by the Pigford Arbitrator to satisfy the “extraordinary circumstances” requirement.
BB. “Pigford Timely 5(g) List” is a list maintained or prepared by the Pigford Facilitator that identifies those individuals who the Pigford Facilitator has determined submitted Late-Filing Requests under Section 5(g) of the Pigford Consent Decree after October 12, 1999, and on or before September 15, 2000.
CC. “Preliminary Approval Date” is the date on which the Court enters a Preliminary Approval Order.
DD. “Preliminary Final Accounting Date” is the date that the Secretary receives the Preliminary Final Accounting provided for in Section V.E.7.
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EE. The “Secretary” is, individually and collectively, Thomas Vilsack, in his official capacity as Secretary of USDA, his successors as Secretary of USDA, USDA, its agencies, instrumentalities, agents, officers, and employees.
FF. The “Secretary’s Counsel” is the U.S. Department of Justice.
GG. “Section [or §] 14012” means Public Law No. 110-234 and/or 110-246, § 14012 (2008).
HH. “Signatory Plaintiffs” are the individuals who have filed claims in any of the complaints consolidated into the Consolidated Case as of February 18, 2010 with the exception of the complaints captioned Beckley v. Vilsack, No. 09-1019 (D.D.C.); Edwards v. Vilsack, No. 10-465 (D.D.C.); Latham v. Vilsack, No. 10737 (D.D.C.); Andrews v. Vilsack, No. 10-801 (D.D.C.); and Johnson v. Vilsack, No. 10-839 (D.D.C.).
II. “Track A Individual Counsel Fee” is a fee negotiated between a Claimant and his or her Individual Counsel, subject to a cap set by the Court, which the Claimant agrees to pay to Individual Counsel if he or she obtains a Track A Award and which Individual Counsel agrees to accept in full satisfaction for the fees, expenses, or costs associated with work performed on behalf of the Claimant in obtaining that Award.
JJ. “Track A Neutral” is an adjudicator hired by Lead Class Counsel and approved by the Court, the Secretary, and the Attorney General to determine the merits of the claims submitted under Track A and conduct other duties as assigned under this Agreement. Prior to determining any claims, each Track A Neutral must take an oath administered by the Court that he or she will determine each claim faithfully, fairly, and to the best of his or her ability.
KK. “Track A Award” is a combination of a Track A Liquidated Award, a Track A Tax Award, and a Track A Loan Award, if applicable. A “Provisional” Track A Award refers to the amount specified in Part V of a Track A Determination Form. A “Final” Track A Award refers to the amount specified in Part III of a Track A Determination Form. Track A Awards are subject to reduction based on the amount of available funds and the number of meritorious claims.
LL. “Track A Liquidated Award” is $50,000 per Class Member for credit claims, regardless of the number of the Class Member’s prevailing claims, and $3,000 per Class Member for non-credit claims, regardless of the number of the Class Member’s prevailing claims. A “Provisional” Track A Liquidated Award refers to the amount specified in Part V of a Track A Determination Form. A “Final” Track A Liquidated Award refers to the amount specified in Part III of a Track A 7

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Determination Form. Track A Liquidated Awards are subject to reduction based on the amount of available funds and number of meritorious claims.
MM. “Track A Loan Award” is the amount of a Class Member’s outstanding debt as of the date certain specified in Section V.B.6 incurred under the following FSA Farm Loan Program loans:
1. Those that form the basis of a Class Member’s prevailing credit claim (“Prevailing Loan”);
2. Those that: (a) were part of the same loan program as the Prevailing Loan; (b) originated at the same time or subsequent to the Prevailing Loan but prior to January 1, 1997; and (c) are not the subject of an adverse administrative decision that has become final or an adverse federal or state court judgment that has become final (collectively “Related Loan”); and
3. Those that have been consolidated with or restructured into a new loan that includes either a Prevailing Loan or a Related Loan.
A “Provisional” Track A Loan Award refers to the amount specified in Part V of a Track A Determination Form. A “Final” Track A Loan Award refers to the amount specified in Part III of a Track A Determination Form. Track A Loan Awards are subject to reduction based on the amount of available funds and number of meritorious claims.
NN. “Track A Tax Award” is an award made in recognition of a Class Member’s expected tax liability in an amount equal to 25% of the Class Member’s Track A Liquidated Award and 25% of the principal amount of the Class Member’s Track A Loan Award, if applicable. A “Provisional” Track A Tax Award refers to the amount specified in Part V of a Track A Determination Form. A “Final” Track A Tax Award refers to the amount specified in Part III of a Track A Determination Form. Track A Tax Awards are subject to reduction based on the amount of available funds and number of meritorious claims.
OO. “Track B Award” is the amount of actual damages, up to $250,000, for which the Track B Neutral determines that a Class Member is eligible under the applicable standards for Track B. A “Provisional” Track B Award refers to the amount specified in Part V of a Track B Determination Form. A “Final” Track B Award refers to the amount specified in Part III of a Track B Determination Form. Track B Awards are subject to reductions based on the amount of available funds and number of meritorious claims.
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PP. “Track B Cap” is $100,000,000.
QQ. “Track B Fee” is a fee negotiated between a Claimant and his or her Counsel, whether Class Counsel or Individual Counsel, subject to a cap set by the Court, which the Claimant agrees to pay if he or she obtains a Track B Award and which Counsel agrees to accept in full satisfaction for the fees, expenses, or costs associated with work performed on behalf of the individual Claimant in obtaining that Award.
RR. “Track B Neutral” is an adjudicator hired by Lead Class Counsel and approved by the Court, the Secretary, and the Attorney General to determine the merits of the claims submitted under Track B. Prior to determining any claims, each Track B Neutral must take an oath administered by the Court that he or she will determine each claim faithfully, fairly, and to the best of his or her ability.
SS. The “United States” is, individually and collectively, the Executive Branch of the United States, its agencies, instrumentalities, agents, officers, and employees.
III. THE SETTLEMENT CLASS
A. The Parties agree, for purposes of this Agreement only, to the following Federal Rule of Civil Procedure 23(b)(1), non-opt-out class:
All individuals: (1) who submitted Late-Filing Requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree.
Where used in this Agreement, the “Class” refers, individually and collectively, to the Class Representatives, the Class, and each Member of the Class as well as their heirs, administrators, personal representatives, successors, and/or assigns.
B. In accordance with the terms of this Agreement, the Signatory Plaintiffs will move for certification of this Settlement Class, for appointment of some of the Signatory Plaintiffs as the Class Representatives, for appointment of Class Counsel, and for designation of specific counsel from among Class Counsel to serve as Lead Class Counsel and members of the Plaintiffs’ Steering Committee.
IV. DISMISSAL AND FUNDING
A. The Class agrees to the dismissal of all actions pending in the Consolidated Case with prejudice under Federal Rules of Civil Procedure 41(a)(1) and 23(e). In 9

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accordance with the terms of this Agreement, the Signatory Plaintiffs will move for dismissal, with prejudice, of all actions pending in the Consolidated Case, to be effective on the Final Approval Date. Notwithstanding such dismissal, the Court shall retain continuing jurisdiction to oversee and enforce this Agreement.
B. Class Counsel shall, within seven (7) calendar days of the Preliminary Approval Date, notify the Secretary and the Court in writing of the identities of the Designated Account and Designated Bank.
C. Within thirty (30) calendar days of the Preliminary Approval Date, Class Counsel shall seek approval from the Court for a disbursal of up to $5,000,000 from the Designated Account for payment of Court-approved interim Implementation Costs provided for in this Agreement. Upon Court approval of this request and in accordance with the Court’s Order, the Secretary shall, within twenty (20) days of such approval, provide the U.S. Department of the Treasury with all necessary forms and documentation to direct a payment for the benefit of the Class in accordance with and subject to the following conditions:
1. The Secretary shall make this payment from the 2008 Funds;
2. The payment shall be in an amount ordered by the Court, not to exceed $5,000,000;
3. The Secretary shall direct the deposit of these funds into the Designated Account. Class Counsel shall provide the Secretary in writing with the information necessary to direct the deposit;
4. Class Counsel shall use these funds solely for Court-approved interim Implementation Costs provided for in this Agreement; and
5. Class Counsel shall provide the Secretary and the Court with quarterly written reports related to the expenditure of the funds provided in this Subsection. The quarterly reports, which may be submitted on the Quarterly Disbursement Reporting Form (Ex. E), shall identify (a) to whom Class Counsel has paid the funds, (b) the amount of such payment, (c) when the funds were paid, and (d) for what purpose the payment has been made, with reference to this Agreement.
D. If, prior to the Final Approval Date, Class Counsel determines that the amount provided in IV.C is insufficient to cover the Court-approved interim Implementation Costs, Class Counsel may submit additional written requests to the Court for up to $5,000,000 to be used for interim Implementation Costs,
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except that Class Counsel may not request more than $10,000,000 in aggregate Implementation Costs prior to the Final Approval Date. Upon Court approval of any such request and in accordance with any related Court Order, the Secretary shall, within twenty (20) days of such approval, provide the U.S. Treasury with all necessary forms and documentation to direct a payment for the benefit of the Class in accordance with and subject to the conditions in Section IV.C.
E. After the Final Approval Date, Class Counsel may submit additional written requests to the Court for additional Court-approved interim Implementation Costs and for Court-approved interim Common Benefit Fees, subject to the following conditions:
1. Class Counsel shall not make more than four requests per calendar year, shall not seek more than $5,000,000 per request, and must submit, with each request, evidence that the Designated Account has been or will be depleted; and
2. Class Counsel shall make no request that would cause the sum of interim Implementation Costs and interim Common Benefit Fees paid by the Secretary under this Agreement to exceed $20,000,000.
F. Upon Court approval of any request in Section IV.E and in accordance with any related Court Order, the Secretary shall, within twenty (20) days of such approval, provide the U.S. Department of the Treasury with all necessary forms and documentation to direct the payment of the requested funds, for the benefit of the Class, in accordance with and subject to the following conditions:
1. The Secretary shall make these payments from the 2008 Funds;
2. The total of all interim Implementation Costs and interim Common Benefit Fees under Sections IV.C, IV.D, and IV.F shall not exceed $20,000,000;
3. The Secretary shall direct the deposit of these funds into the Designated Account. Class Counsel shall provide the Secretary in writing with the information necessary to direct the deposit;
4. These funds shall be used solely for Court-approved interim Implementation Costs and Court-approved interim Common Benefit Fees provided for in this Agreement. Any Court-approved Common Benefit Fees may be paid only to those counsel who have incurred fees to date for
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work performed on behalf of the Class as a whole, including negotiation of this Agreement; and
5. Class Counsel shall provide the Secretary and the Court with quarterly written reports related to the expenditure of the funds provided in this Subsection. The quarterly reports, which may be submitted on the Quarterly Disbursement Reporting Form (Ex. E), shall identify (a) to whom Class Counsel has paid the funds, (b) the amount of such payment, (c) when the funds were paid, and (d) for what purpose the payment has been made, with reference to this Agreement. For the expenditure of interim Common Benefit Fees, the report must also identify the specific work performed to merit the payment of interim fees.
G. At any point after Preliminary Approval of the Settlement Agreement, the Court may order payment of Ombudsman Costs, as defined in Section VI.A of this Agreement. Within twenty (20) days of any such Court Order, the Secretary shall provide the U.S. Department of the Treasury with all necessary forms and documentation to direct a payment to the Designated Account for the fees and expenses of the Ombudsman, subject to the following conditions:
1. Any payment to the Ombudsman made before the Preliminary Final Accounting Date shall be paid from the 2008 Funds;
2. Any payment to the Ombudsman shall be for fees and expenses incurred or expected to be incurred in the performance of the Ombudsman’s duties under Section VI of this Agreement;
3. The Ombudsman shall provide Class Counsel, the Secretary, and the Court with quarterly written reports identifying his or her fees and expenses, as related to the expenditure of the funds provided in this Subsection.
H. Within thirty (30) days of the Preliminary Final Accounting Date or the Effective Date, whichever is later, Class Counsel shall seek approval from the Court for a payment for the benefit of the Class equal to the lesser of (1) the 2010 Funds plus any remaining 2008 Funds, or (2) the sum, as set forth in the Preliminary Final Accounting in Section V.E.7, of (a) all Final Track A Liquidated Awards, Final Track A Loan Awards, and Final Track A Tax Awards, (b) all Final Track B Awards, (c) the incurred and estimated final Implementation Costs up to the Cost Cap as approved by the Court, (d) the incurred and estimated final Ombudsman Costs approved by the Court, and (e) the Fee Award approved by the Court minus the sum of Track B Fees incurred by Track B Class Members, minus any amounts the Secretary has already paid under Sections IV.C, IV.D, IV.F, and IV.G. Within twenty (20) days of Court approval of this request and in accordance with 12

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the Court’s Order, the Secretary shall provide the U.S. Department of the Treasury with all necessary forms and documentation to direct a payment in the amount the Court approves in accordance with and subject to the following conditions:
1. The Secretary shall direct the deposit of these funds into the Designated Account. Class Counsel shall provide the Secretary in writing with the information necessary to direct the deposit;
2. These funds shall be used solely to pay (a) Final Track A Liquidated Awards, Final Track A Loan Awards, Final Track A Tax Awards, and Final Track B Awards to or on behalf of Class Members pursuant to the Non-Judicial Claims Process (Section V); (b) Common Benefit Fees approved by the Court; (c) Track B Fees; (d) reasonable and compensable Court-approved Implementation Costs; (e) reasonable and compensable Court-approved Ombudsman Costs; and (f) if applicable, any leftover funds to Cy Pres Beneficiaries, as specified in Section V.E.13 and approved by the Court; and
3. Class Counsel shall provide the Secretary and the Court with written quarterly reports related to the expenditure of the funds provided in this Subsection. The quarterly reports, which may be submitted on the Quarterly Disbursement Reporting Form (Ex. E), shall identify (a) to whom Class Counsel has paid the funds, (b) the amount of such payment, (c) when the funds were paid, and (d) for what purpose the payment has been made, with reference to this Agreement. If Class Counsel has expended funds to pay Final Track A Liquidated Awards, Final Track A Loan Awards, Final Track A Tax Awards, and Final Track B Awards during the reporting period, Class Counsel shall also identify the number of such awards.
I. Any funds other than 2008 Funds or 2010 Funds are outside the scope of this Agreement and the scope of the payment obligations of the Secretary and/or the United States under this Agreement and shall not be paid by the Secretary and/or the United States to the Class or Class Counsel under this Agreement.
J. Once the funds paid by the Secretary under this Agreement are deposited into the Designated Account, the Secretary has no liability whatsoever for the protection or safeguard of the deposited funds, regardless of bank failure, fraudulent transfers, or any other fraud or misuse of the funds.
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K. Nothing in this Agreement shall limit in any way the duties owed by Class Counsel to the Class under any applicable law, including any law governing counsel’s management or handling of client funds.
L. The funds that the Secretary pays pursuant to this Agreement are inclusive of damages and other monetary relief, attorneys’ fees, expenses, costs, tax payments, payments in recognition of outstanding FSA Farm Loan Program debt, interest, and costs, and are the only funds that will be paid by the Secretary under this Agreement.
M. Other than the funds specified in this Agreement, no other funds, including those from the Judgment Fund, 31 U.S.C. § 1304, the Commodity Credit Corporation, or from the Salaries and Expenses Account of USDA or any of its agencies shall be available for any purpose related to this Agreement, except by the Secretary for purposes of satisfying his duties under this Agreement.
N. The binding effect and implementation of this Agreement is not contingent in any way upon the provision by Congress of any funds. The Class Representatives and the Class acknowledge that Congress is not obligated to appropriate any additional funds.
O. The limitations on funding in this Agreement apply notwithstanding a determination by the Class Representatives, the Class, or Class Counsel that the funds made available under this Agreement are inadequate to pay claims submitted pursuant to the Non-Judicial Claims Process (Section V), attorneys’ fees, expenses, and costs incurred under this Agreement, and/or Implementation Costs incurred under this Agreement.
P. The Secretary and/or the United States shall not be liable to pay the Claims Administrator, the Pigford Facilitator, the Track A Neutral, the Track B Neutral, the Ombudsman, or any of their employees and agents. Subject to the Cost Cap, all fees, costs, and expenses incurred by the Claims Administrator, the Neutrals and their employees and agents shall be paid from the Designated Account as Implementation Costs. All fees, costs, and expenses incurred by the Ombudsman shall be paid from the Designated Account as Ombudsman Costs.
Q. The Class Representatives, the Class, and/or Class Counsel may not terminate this Agreement because the Class Representatives, the Class, and/or Class Counsel assert that the Cost Cap is inadequate, and neither the Class Representatives nor Class Counsel shall be permitted to amend, alter, or reduce their obligations and duties under this Agreement in any manner. The Class Representatives and Class Counsel agree to continue with implementation of this Agreement notwithstanding the amount of Implementation Costs incurred under this 14

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Agreement. The Secretary shall have no responsibility for Implementation Costs above the Cost Cap.
R. Nothing in this Agreement shall preclude the Class, the Secretary and/or the United States from seeking additional funds from Congress for purposes of this Agreement. The Secretary and/or the United States, however, are not obligated to seek any additional funds, support any legislation, or refrain from opposing any additional funds or legislation. The binding effect and implementation of this Agreement are not contingent in any way upon the interactions between the Secretary and/or the United States and Congress.
S. The Class Members will have sole responsibility to comply with their own applicable federal, state, and local tax requirements that arise as a result of this Agreement. Class Counsel will have sole responsibility to comply with their own applicable federal, state, and local tax requirements that arise as a result of this Agreement.
V. NON-JUDICIAL CLAIMS PROCESS
To obtain relief under this Settlement, Claimants must be Class Members and have their claims determined to be meritorious under one of two tracks – (1) Track A, which tests claims against a lower “substantial evidence” standard of proof, and awards successful claimants with a liquidated payment of up to $50,000 for credit claims and/or up to $3,000 for non-credit claims, a payment in recognition of outstanding debt owed to USDA/FSA, and a payment to offset tax liability from these awards; or (2) Track B, which tests claims against a higher “preponderance of the evidence” standard of proof, and provides awards to successful Claimants in the amount of their actual damages up to $250,000, subject to the Track B Cap.
Each of these awards is subject to reduction based on the amount of available funds and the number of meritorious claims.
A. GENERAL REQUIREMENTS
1. To obtain a Claim Determination under this Agreement, a Claimant must be a Class Member and must submit a Complete Claim Package to the Claims Administrator by the Claim Deadline (180 days from the Final Approval Date). A “Complete Claim Package” must include:
a. A completed Claim Form (Ex. C), including the Claimant’s declaration, under penalty of perjury, that each of the statements provided by the Claimant is true and correct;
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b. For a Track A Claimant who seeks a Track A Loan Award, a statement that the Claimant seeks such an award and an executed Authorization to Disclose Debt Information Form (Ex. D);
c. A declaration by the Claimant’s Counsel, whether Class Counsel or Individual Counsel, made under penalty of perjury, that to the best of the attorney’s knowledge, information, and belief formed after an inquiry reasonable under the circumstances, the claim is supported by existing law and the factual contentions have evidentiary support. For Claimants proceeding without counsel, the declaration on the Claim Form (Ex. C) is sufficient to satisfy this requirement;
d. For a Claimant who is deceased, (a) a death certificate and (b) either (i) proof of legal representation, or (ii) a sworn statement describing why the submitting individual believes he or she will be appointed the legal representative of the Claimant’s estate; and
e. For a Claimant unable to submit a claim on his or her own behalf due to a physical or mental limitation, (a) proof of legal representation or (b) a sworn statement describing why the Claimant is unable to submit a claim on his or her own behalf and why the submitting individual asserts a right to do so on the Claimant’s behalf.
The submission date of the Claim Package shall be the date of postmark if the Claim Package is sent via first-class mail, the date of deposit if sent by courier or overnight delivery, and the date of transmission if sent electronically.
2. A Claimant may be represented in this Claims Process by Class Counsel or Individual Counsel, or the Claimant may submit a claim without counsel. A Track A Claimant shall be represented at no additional charge by Class Counsel, unless that Claimant elects to be represented by Individual Counsel or elects to submit a claim without counsel. For Track A, if a Claimant elects to be represented by Individual Counsel, the Claimant must make separate arrangements to pay Individual Counsel, subject to the terms of this Agreement and the cap on Track A Individual Counsel Fees set by the Court. For Track B, if a Claimant elects to be represented by either Class Counsel or Individual Counsel, the Claimant must make separate arrangements to pay Class Counsel or Individual Counsel, subject to the terms of this Agreement and the cap on Track B Fees set by the Court. An attorney who serves as Individual Counsel 16

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consents to the terms of this Agreement and agrees to abide by all orders of the Court in the Consolidated Case.
3. In the case of a Claimant who is deceased, the legal representative of the Claimant’s estate may submit a claim on the Claimant’s behalf. If there is no legal representative, any other individual who asserts a right to be the legal representative of the Claimant’s estate may submit a claim on the Claimant’s behalf. If there is no legal representative and more than one individual submits a claim on behalf of the Claimant, a Track A Neutral or Track B Neutral designated by the Claims Administrator shall decide which of the individuals is entitled to pursue the claim on the Claimant’s behalf. If the Claimant prevails, and a legal representative for the Claimant’s estate has not yet been appointed, the Claimant’s award shall be held for up to one year in a separate account established by Class Counsel for the benefit of the estate until a legal representative to whom the funds may be disbursed is appointed. The Claims Administrator may extend this period upon receipt of proof that a probate petition is pending in the appropriate Court.
4. In the case of a Claimant who is unable to submit a claim on his or her own behalf due to a physical or mental limitation, the Claimant’s legal representative may submit a claim on the Claimant’s behalf. If there is no legal representative, any other individual who asserts a right to be the legal representative may submit a claim on the Claimant’s behalf. If there is no legal representative and more than one individual submits a claim on behalf of an individual who is unable to submit a claim on his or her own behalf, a Track A Neutral or Track B Neutral designated by the Claims Administrator shall decide which of the individuals is entitled to pursue the claim on the Claimant’s behalf. If the Claimant prevails, and a legal representative for the Claimant has not yet been appointed, the Claimant’s award shall be held for up to one year in a separate account established by Class Counsel for the benefit of the Claimant until a legal representative for the Claimant to whom the funds may be disbursed is appointed. The Claims Administrator may extend this period upon receipt of proof that a petition for appointment of a legal representative for the Claimant is pending in the appropriate Court.
5. A Claimant who has an interest in more than one farming operation may file a claim on behalf of more than one farming operation. However, in such a situation, the Claims Administrator will not distribute to the Claimant more than the maximum liquidated damages recovery established by Section II.LL above regardless of the number of farming operations in which discrimination is found to have occurred. To the
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extent that Multiple Claimants operating a single farming operation file separate claims, the Neutral shall consider all such claims together and shall make no more than one Track A Liquidated Award or Track B Award per farming operation. Any award made for a farming operation for which Multiple Claimants have filed multiple claims shall be distributed pro rata to each of the claimants the Neutral determines to be legitimate, provided that the Neutral may allocate such an award on a basis other than pro rata if one or more of such multiple claimants presents compelling evidence to justify an alternative allocation. Loan Awards may be made to Multiple Claimants for a single farming operation if the Neutral determines that such claimants have loans that are eligible for such an award.
6. A Claimant’s election of Track A is irrevocable and exclusive. A Claimant’s election of Track B is irrevocable and exclusive, except as provided in Section V.B.7.
7. Claimants whose claims arise under non-credit benefit programs are required to proceed under Track A.
8. The Class Membership Determinations, Claim Determinations, and any other determinations made under this Section are final and are not reviewable by the Claims Administrator, the Track A Neutral, the Track B Neutral, the Court, or any other party or body, judicial or otherwise. The Class Representatives and the Class agree to forever and finally waive any right to seek review of the Class Membership Determinations, the Claim Determinations, and any other determinations made under this Section.
9. Except as specified in Section V.B.6, the Secretary and/or the United States shall have no role in the non-judicial claims process provided in this Section.
10. The Secretary and/or the United States shall not be liable to pay any Claim Determinations, any Track A Liquidated Awards, Track A Loan Awards, Track A Tax Awards, Track B Awards, or discharge or otherwise satisfy any debt except as provided in Section V.A.12. All Track A Liquidated Awards, Track A Loan Awards, Track A Tax Awards, and Track B Awards shall be paid from the Designated Account.
11. The Secretary and/or the United States shall have no obligation to provide any information, documents, or discovery to the Class, Class Members, or Class Counsel, except as provided in Section V.B.6.
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12. The Claims Administrator will make Track A Loan Awards and Track A Tax Awards directly to FSA (for Track A Loan Awards) and the Internal Revenue Service (for Track A Tax Awards) on each prevailing Class Member’s behalf and not to the prevailing Class Member. If a Track A Loan Award provided by the Claims Administrator to FSA to reduce or discharge outstanding Farm Loan Program loans held by a prevailing Class Member does not discharge or otherwise satisfy the Class Member’s debt in full, interest will continue to accrue unless and until the Class Member repays the loan in full. Subject to the limitations in Section VII, FSA will maintain all available options for servicing and recovering all Farm Loan Program debt from the Class Member, including, but not limited to, acceleration and foreclosure in accordance with the governing regulations.
13. The Claims Administrator shall send all correspondence and all payments to Claimants, Class Members, and/or their Counsel by first-class mail, postage prepaid.
14. Class Counsel, the Claims Administrator, the Ombudsman, and the Neutrals shall take reasonable steps to protect private personal and financial information submitted to them under this Agreement.
15. The Claims Administrator and the Track A and B Neutrals shall report periodically to Lead Class Counsel and the Ombudsman any issues of concern that arise in the course of the execution of their duties.
B. REVIEW OF THE CLAIM SUBMISSION AND THE CLASS MEMBERSHIP DETERMINATION
1. Upon receipt of a claim, the Claims Administrator shall first assign the claim a unique Claim Identification Number and then determine whether the Claimant’s submission satisfies the Claim Deadline and whether the submission is a Complete Claim Package. The Claims Administrator shall make every reasonable effort to complete this determination within ten (10) days of receipt of the claim.
2. For each Claimant who has submitted an incomplete Claim Package or for each Claim Package that the Claims Administrator is unable to determine whether it is complete or timely, the Claims Administrator shall send to the Claimant and his or her Counsel a completed Your Claim Package is Not Complete Form (Ex. F). A Claimant shall have thirty (30) calendar days from the date of postmark of such a Form to submit, either by firstclass mail, postage prepaid, or electronically, a Complete Claim Package. 19

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There shall be no exceptions to or extensions of the time frames set forth in this paragraph, and the failure of a Claimant to provide any requested materials within the specified time frames will result in that Claimant obtaining a final and unreviewable adverse determination.
3. For each Claimant whose claim is untimely submitted, the Claims Administrator shall return the Claim Package to the Claimant and his or her Counsel with a completed You Have Not Submitted Your Claim On Time Form (Ex. G). This determination is final and not reviewable by the Claims Administrator, the Track A Neutral, the Track B Neutral, the Court, or any other party or body, judicial or otherwise.
4. For each Claimant determined by the Claims Administrator to have submitted a timely and Complete Claim Package, the Claims Administrator shall determine whether the Claimant is a Class Member. To make this determination, the Claims Administrator shall determine whether the Class Member has established, by a preponderance of the evidence, that:
a. The Claimant submitted a Late-Filing Request under Section 5(g) of the Pigford Consent Decree on or after October 13, 1999, and on or before June 18, 2008. For purposes of this determination, the Claims Administrator shall review the Pigford Timely 5(g) List. If a Claimant appears on the Pigford Timely 5(g) List, the Claimant will be deemed to have submitted a Late-Filing Request. If the Claimant is not on the Pigford Timely 5(g) List, the Claimant must establish with independent documentary evidence that he or she submitted a Late-Filing Request. A tracking number given to a Claimant in Pigford or a list maintained by the Pigford Facilitator other than the Timely 5(g) List are insufficient, on their own, to constitute independent documentary evidence for this purpose. The Claims Administrator shall make this determination by examining the documents, if any, provided by Class Counsel and the documents submitted by the Claimant as part of his or her claim; and
b. The Claimant has not obtained a determination on the merits of his or her discrimination complaint, as defined by Section 1(h) of the Pigford Consent Decree. For purposes of this determination, the Claims Administrator shall review the Pigford Participants List and the Pigford Opt-Out List. If a Claimant (a) appears on either of these Lists, or (b) has obtained a judgment from a judicial or administrative forum on the basis of the race discrimination claim 20

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that provides the basis of the Claimant’s discrimination complaint, that Claimant will be deemed to have obtained a determination on the merits of his or her discrimination claim. If the Claims Administrator determines, at any time prior to paying a Claimant under this Agreement, that the Claimant already has obtained a determination on the merits of his or her discrimination complaint, the Claims Administrator shall not make any payments to the Claimant.
5. For each Claimant who the Claims Administrator determines is not a Class Member, the Claims Administrator shall complete a You Are Not a Class Member Form (Ex. H) and send the Form to the Claimant and his or her counsel. This determination is final and not reviewable by the Claims Administrator, the Track A Neutral, the Track B Neutral, the Court, or any other party or body, judicial or otherwise.
6. For each Claimant who the Claims Administrator determines to be a Class Member and who elects Track A, the Claims Administrator shall complete Parts I and VI of a Track A Claim Determination Form (Ex. A) and send the Form and the Class Member’s claim electronically to the Track A Neutral. If the Class Member seeks a Track A Loan Award and has submitted an Authorization to Disclose Debt Information Form (Ex. D), the Claims Administrator shall request that FSA confirm whether the Class Member has an outstanding Farm Loan Program loan(s) and provide the applicable loan(s) balance(s) and loan payoff amount(s). In order to make this request, the Claims Administrator must complete the Authorization to Disclose Debt Information Form received from the Class Member and send it, along with the Class Member’s completed Claim Form, to FSA. Within sixty (60) calendar days of receipt of the request or as soon thereafter as is practicable, FSA will return the Authorization to Disclose Debt Information Form to the Claims Administrator with the requested information. The payoff amount will be as of a date certain with a daily interest accrual note. Interest will continue to accrue until the account is paid in full. The Claims Administrator shall submit the completed Authorization to Disclose Debt Information Form to the Track A Neutral reviewing the Class Member’s Claim, the Class Member, and the Class Member’s Counsel.
7. Within ten (10) days after the Claim Deadline, for each Claimant who the Claims Administrator determines to be a Class Member and who elects Track B, the Claims Administrator shall send the Class Member a notice in writing informing the Class Member of the total number of Class Members who submitted Complete Claims Packages under Track B by the
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Claim Deadline. Such notification shall also remind each Class Member of: (a) the definition of Track B Awards; (b) the Track B Cap; and (c) the possibility that a Class Member’s Track B Award will be reduced if the total of all Track B Awards exceeds the Track B Cap. Such notification shall inform the Class Member that the Class Member may change his or her election to Track A by so notifying the Claims Administrator in writing within thirty (30) days of the postmark of the notification. If a Track B Class Member does not so notify the Claims Administrator, his or her claim shall be treated as a Track B claim.
8. For each Claimant who the Claims Administrator determines to be a Class Member and who elects Track B under Section V.B.7, the Claims Administrator shall complete Parts I and VI of a Track B Claim Determination Form (Ex. B) and send the Form and the Class Member’s claim electronically to the Track B Neutral.
9. For each Claimant who the Claims Administrator determines to be a Class Member and who elects Track A under Section V.B.7, the Claims Administrator shall follow the procedure in Section V.B.6.
10. The Claims Administrator shall make every reasonable effort to complete the Class Membership Determination and complete his or her other duties under this Section within sixty (60) days of receipt of a Complete Claim Package.
C. TRACK A
1. For each Class Member asserting a claim under Track A, the Track A Neutral shall determine whether the Class Member has established, by substantial evidence, each of the following elements:
a. The Class Member is an African-American who farmed, or attempted to farm, between January 1, 1981, and December 31, 1996;
b. The Class Member owned or leased, or attempted to own or lease, farm land;
c. The Class Member applied, or constructively applied, for a specific farm credit transaction(s) or non-credit benefit(s) at a USDA office between January 1, 1981, and December 31, 1996;
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d. For claimants who applied -- i.e., not constructively applied -- for a specific farm credit transaction(s) or non-credit benefit(s), the farm loan(s) or non-credit benefit(s) for which the Class Member applied was denied, provided late, approved for a lesser amount than requested, encumbered by a restrictive condition(s), or USDA failed to provide an appropriate loan service(s);
e. USDA’s treatment of the loan or non-credit benefit application(s) or constructive application(s) led to economic damage to the Class Member; and
f. The Class Member complained of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of him or her in response to the application(s).
“Substantial evidence” is such evidence that a reasonable person might accept as adequate to support a conclusion after taking into account other evidence in the record that fairly detracts from that conclusion. Substantial evidence is a lower standard of proof than a preponderance of the evidence.
2. For each Class Member who asserts that he or she “constructively applied” for a loan or non-credit benefit in order to satisfy Section V.C.1.c, the Track A Neutral must make an additional determination that the Class Member has established, by substantial evidence, that:
a. The Class Member made a bona fide effort to apply for a loan or non-credit benefit. Such bona fide effort may be established by evidence of:
(1) the year in which the Class Member attempted to apply and the general time period within that year (e.g., late fall, early spring, sometime in January, February, or March);
(2) the type and amount of loan or non-credit benefit for which the Class Member attempted to apply;
(3) how the Class Member planned to use the funds (i.e., identification of crops, equipment, acreage, etc.); and
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(4) how the Class Member’s plans for a farm operation were consistent with farming operations in that county/area in that year; and
b. USDA actively discouraged the application. Active discouragement may be established by evidence of:
(1) statements by a USDA official that, at the time the Class Member wanted to apply, there were no funds available and therefore no application would be provided;
(2) statements by a USDA official that, at the time the Class Member wanted to apply, there were no application forms available; or
(3) statements by a USDA official that, at the time the Class Member wanted to apply, USDA was not accepting or processing applications.
3. The Track A Neutral’s determination shall be based solely on the materials submitted by the Class Member and, if applicable, the information provided by FSA in response to a completed Authorization to Disclose Debt Information Form.
4. If, in the Track A Neutral’s judgment, additional documentation and evidence would be necessary or helpful in deciding the merits of a particular claim, or if the adjudicator suspects fraud regarding a particular claim, the Track A Neutral may require that the Class Member provide additional documentation and evidence. A Class Member’s inability to provide the requested additional documentation or evidence shall not require a rejection of that Class Member’s claim.
5. If the Track A Neutral determines that the Class Member has satisfied the elements listed above in Sections V.C.1 and V.C.2 for a credit or noncredit claim, the Neutral shall complete Part V on the Class Member’s Track A Claim Determination Form (Ex. A). If the Track A Neutral determines that the Class Member has not satisfied the elements listed above, the Neutral shall complete Part IV of the Track A Claim Determination Form. The Neutral shall make every reasonable effort to complete this determination and send the Track A Claim Determination Form electronically to the Claims Administrator within thirty (30) calendar days of receipt of the claim or within ten (10) calendar days of
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receipt of the Authorization to Disclose Debt Information Form, whichever is later.
D. TRACK B
1. For each Class Member asserting a credit claim under Track B, the Track B Neutral shall determine whether the Class Member has established, by a preponderance of the evidence and through independent documentary evidence admissible under the Federal Rules of Evidence, each of the following elements:
a. The Class Member is an African-American who farmed, or attempted to farm, between January 1, 1981, and December 31, 1996;
b. The Class Member owned or leased, or attempted to own or lease, farm land;
c. The Class Member applied for a specific farm credit transaction(s) at a USDA office between January 1, 1981, and December 31, 1996. Constructive application is insufficient;
d. The farm loan(s) for which the Class Member applied was denied, provided late, approved for a lesser amount than requested, encumbered by a restrictive condition(s), or USDA failed to provide an appropriate loan service(s);
e. The treatment of the Class Member’s loan application(s) by USDA was less favorable than that accorded a specifically identified, similarly situated white farmer(s);
f. USDA’s treatment of the loan application(s) led to economic damage to the Class Member; and
g. The Class Member complained of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of him or her in response to the application(s).
A “preponderance of the evidence” is such relevant evidence as is necessary to prove something is more likely true than not true.
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2. Notwithstanding the requirement that each element in Track B be established by a preponderance of the evidence and with independent documentary evidence admissible under the Federal Rules of Evidence,
a. Sections V.D.1.e and V.D.1.g may be established by a preponderance of the evidence and with a sworn statement based on personal knowledge by an individual who is not a member of the Class Member’s family;
b. The Class Member’s loan application and supporting documents forming the basis of the Class Member’s claim are deemed admissible under the Federal Rules of Evidence upon a sworn statement by the Class Member that the loan application and supporting documents were submitted to FSA contemporaneously to the date of the complete application. FSA documents that were provided to the Class Member in response to the Class Member’s loan application are also deemed admissible under the Federal Rules of Evidence upon a sworn statement by the Class Member that the Class Member received the FSA documents in response to the Class Member’s loan application contemporaneously to the date of the response; and
c. Nothing in this Section precludes a Class Member from submitting expert testimony to explain the independent documentary evidence submitted by the Class Member with respect to Section V.D.1.f.
3. Once the Class Member has submitted independent documentary evidence admissible under the Federal Rules of Evidence or evidence as provided for above in Section V.D.2 on each element, the Track B Neutral may consider the materials submitted by the Class Member and any other information or material deemed appropriate for consideration by the Track B Neutral.
4. If, in the Track B Neutral’s judgment, additional documentation and evidence would be necessary or helpful in deciding the merits of a particular claim, or if the adjudicator suspects fraud regarding a particular claim, the Track B Neutral may require that the Class Member provide additional documentation and evidence. A Class Member’s inability to provide the requested additional documentation or evidence shall not require a rejection of that Class Member’s claim.
5. If the Track B Neutral determines that the Class Member has satisfied the elements listed in Section V.D.1 above, the Neutral shall complete Part V 26

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on the Class Member’s Track B Claim Determination Form (Ex. B). If the Track B Neutral determines that the Class Member has not satisfied the elements listed above, the Neutral shall complete Part IV of the Track B Claim Determination Form. The Neutral shall make every reasonable effort to complete this determination and send the Track B Claim Determination Form electronically to the Claims Administrator within sixty (60) calendar days of receipt of the claim.
E. DISTRIBUTION OF CLAIM DETERMINATIONS AND SETTLEMENT FUNDS
1. Within thirty (30) days of the Claims Administrator’s receipt of a Track A or Track B Claim Determination Form (Exs. A or B) for a denied claim, the Claims Administrator shall complete Parts I, II, and IV of the applicable Claim Determination Form and send the completed Claim Determination Form to the non-prevailing Class Member and his or her counsel, and to Lead Class Counsel.
2. Within thirty (30) days of the Claims Administrator’s receipt of a Track A or Track B Claim Determination Form (Exs. A or B) for a prevailing claim, the Claims Administrator shall send a letter in the form of Exhibit J to the prevailing Class Member and his or her counsel, and to the Lead Class Counsel.
3. On a quarterly basis, the Claims Administrator shall provide to the Secretary and Lead Class Counsel a written report, which may be provided on the USDA Quarterly Payment Reporting Form (Ex. I), that includes: (a) the name, address, and Social Security or Taxpayer Identification Number of each Class Member who has completed the claims process; (b) the Class Member’s FSA Account Number, if applicable, and (c) the status of the Class Member’s claim.
4. Within thirty (30) calendar days of receipt of all Track A and Track B Claim Determination Forms (Exs. A and B), the Claims Administrator shall calculate: (a) the sum of all Provisional Track A Liquidated Awards, Provisional Track A Loan Awards, and Provisional Track A Tax Awards, as shown on Part V of the Track A Claim Determination Forms (Ex. A); (b) the sum of all Provisional Track B Awards, as shown on Part V of the Track B Claim Determination Forms (Ex. B); (c) the sum of all Final Track A Liquidated Awards, Final Track A Loan Awards, Final Track A Tax Awards, and Final Track B Awards, as calculated in Appendix 1; (d) the Implementation Costs incurred to date; (e) a good faith estimate of Implementation Costs necessary for the Claims Administrator to perform 27

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its final duties under this Agreement; (f) the Ombudsman Costs incurred to date; (g) a good faith estimate of the Ombudsman Costs necessary for the Ombudsman to perform his or her final duties under this Agreement; (h) the amount of the Fee Award; (i) the sum of Track B Fees incurred by Track B Class Members, as calculated in Appendix 1.
5. CALCULATION OF AWARDS – Final Awards for each Claimant shall be calculated in accordance with the procedure delineated in Appendix 1. The following is a summary of Appendix 1: To calculate a Claimant’s Final Award, each Claimant’s Provisional Award may be subject to the following reductions:
a. The first reduction involves Track B Awards. If the total amount of Track B Awards exceeds the Track B Cap, all Track B Awards are reduced proportionately until their sum equals the Track B Cap. If the sum of all Track B Awards is under the Track B Cap, no reduction is applied.
b. The next reduction involves Class Members who submitted LateFiling Requests in Pigford after September 15, 2000. If, after making the reduction in subsection (a), the amount of the funds available to pay the prevailing Class Members is insufficient to fully pay Track A Awards and Track B Awards, the awards for those claimants who submitted Late-Filing Requests in Pigford after September 15, 2000 will be reduced by up to 30%. If, after making the reduction in subsection (a), the amount of the funds available to pay the prevailing Class members is sufficient to fully pay Track A Awards and Track B Awards, no reduction is applied.
c. The final reduction involves all Class Members. If, after making the reductions in subsections (a) and (b), the amount of the funds available to pay the prevailing Class Members is still insufficient to fully pay Track A Awards and Track B Awards, all Class Members will have their awards proportionally reduced until the total of all awards equals the amount of funds available.
6. The Claims Administrator shall record the Final Awards and the Final Track B Fees in Parts II and III of the prevailing Class Members’ Track A and Track B Claim Determination Forms (Exs. A and B). The Claims Administrator shall then remove Parts V and VI from the Determination Forms.
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7. Within thirty (30) calendar days of receipt of all Track A and Track B Claim Determination Forms (Exs. A and B), the Claims Administrator shall prepare the Preliminary Final Accounting and submit it to Lead Class Counsel, the Secretary and the Court. The Preliminary Final Accounting shall identify: (1) the number and amount of all Final Track A Liquidated Awards, Final Track A Loan Awards, Final Track A Tax Awards, and Final Track B Awards (shown in Part III of the completed Track A and Track B Determination Forms); (2) the Implementation Costs incurred to date; (3) a good faith estimate of Implementation Costs necessary for the Claims Administrator to perform its final duties under this Agreement; (4) the Ombudsman Costs incurred to date; (5) a good faith estimate of Ombudsman Costs necessary for the Ombudsman to perform its final duties under this Agreement; (6) the amount of the Fee Award; (7) the sum of Track B Fees incurred by Track B Class Members, and (8) the amounts that the Secretary already has paid for interim Implementation Costs, interim Common Benefit Fees, and Ombudsman Costs, and the status of these funds.
8. Within thirty (30) calendar days of the date that the Secretary makes the payment specified in Section IV.H, the Claims Administrator shall:
a. Send to each prevailing Track A Class Member who retained Class Counsel or proceeded without counsel the Class Member’s Track A Claim Determination Form (Ex. A) (without Parts V and VI) and a check payable to the Class Member in the amount of the Class Member’s Final Track A Liquidated Award. The Claims Administrator shall also send to the Individual Counsel for each Track A Class Member who retained Individual Counsel the Class Member’s Track A Claim Determination Form (Ex. A) (without Parts V and VI) and a check jointly payable to the Class Member and his or her Individual Counsel in the amount of the Final Track A Liquidated Award. The Claims Administrator shall also send to each prevailing Track B Class Member the Class Member’s Track B Claim Determination Form (Ex. B) (without Parts V and VI) and a check payable to the Class Member in the amount of the Final Track B Award, minus the Class Member’s Final Track B Fee.
b. Send, on behalf of each prevailing Track A Class Member: (a) to the Internal Revenue Service (IRS), the amount of the Class Member’s Final Track A Tax Award; and (b) to FSA, the amount of the Class Member’s Final Track A Loan Award. The Claims Administrator shall provide the Class Member’s counsel, or the Class Member directly if the Class Member has no counsel, notice
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that such payment(s) has been made. When transmitting payments for Track A Loan Awards to FSA, the Claims Administrator shall provide FSA with the name, address, and Social Security or Taxpayer Identification Number of the Class Member on whose behalf the payment is being made as well as the FSA Account Number of the loan to which the credit should be made.
c. Send a check to the counsel for each prevailing Track B Class Member in the amount of that Class Member’s Final Track B Fee.
9. Within thirty (30) calendar days of the date that the Secretary makes the payment specified in Section IV.H, the Claims Administrator shall cause to be paid from the Designated Account any outstanding Implementation Costs and Ombudsman Costs approved by the Court.
10. Within thirty (30) calendar days of the date that the Secretary makes the payment specified in Section IV.H and upon approval by the Court, the Claims Administrator shall pay Common Benefit Fees to Class Counsel equal to the Fee Award minus the sum of Track B Fees the Claims Administrator caused to be paid and minus any interim Common Benefit Fees already paid.
11. All checks distributed under this Section will be valid for 180 calendar days from the date of issue. The funds corresponding to any check that remains uncashed 181 calendar days from its date of issue shall remain in the Designated Account if Appendix 1 Section I.A.3 applies, shall be distributed pro rata to all prevailing Class Members if Appendix 1 Section I.A.4.a.(1) applies, or shall be distributed pro rata to the prevailing Class Members subject to the 30% reduction if Appendix 1 Section I.A.4.a.(2) applies. The Claims Administrator shall send a check made payable to the Class Member in the amount of the pro rata distribution, if applicable. These checks will be valid for 180 calendar days from the date of issue. Notwithstanding any other provision, no Class Member shall receive a total of more than his or her Provisional Track A Award or Track B Award.
12. If a Class Member who is deceased or was unable to submit a claim on his or her own behalf due to a physical or mental limitation prevails, and a legal representative has not yet been appointed for the Class Member, the funds payable to the Class Member shall be held for up to one year in a separate account established by Class Counsel for the benefit of the Class Member until a legal representative for the Class Member to whom the funds may be disbursed is appointed. The Claims Administrator may 30

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extend this period upon receipt of proof that a petition for appointment of a legal representative for the Class Member is pending in the appropriate court.
13. In the event there is a balance remaining in the Designated Account after the last check has been cashed, the last check has been invalidated due to passage of time, and after the passage of time set forth in Section V.E.12, Class Counsel may then move the Court to designate “Cy Pres Beneficiaries.” A “Cy Pres Beneficiary” must be a non-profit organization, other than a law firm, legal services entity, or educational institution that has provided agricultural, business assistance, or advocacy services, including assistance under Pigford and the Consolidated Case, to African American farmers between 1981 and the Execution Date. Each Cy Pres Beneficiary designated by the Court shall receive equal shares of the balance remaining in the Designated Account. The Claims Administrator shall send to each Cy Pres Beneficiary, via first class mail, postage prepaid, a check in the amount of the Beneficiary’s share.
F. Within 200 calendar days of making all payments set forth in this Section, the Claims Administrator shall prepare the “Final Accounting” and submit it to Lead Class Counsel, the Secretary, the Attorney General, and the Inspector General of the Department of Agriculture. The “Final Accounting” is an accounting prepared and signed by the Claims Administrator after all funds in the Designated Account have been disbursed. The Final Accounting shall identify: (1) the number and amount of all awards the Claims Administrator has caused to be paid to Class Members, to FSA, and to the Internal Revenue Service; (2) the Implementation Costs incurred under the Agreement; (3) the Ombudsman Costs incurred under the Agreement; (4) the amount the Claims Administrator caused to be paid in Common Benefit Fees; (5) the sum of Track B Fees the Claims Administrator caused to be paid; and (6) the amount of any leftover funds paid to Cy Pres Beneficiaries. The Final Accounting shall also identify the total amount of funds the Secretary has provided under this Agreement and the status of these funds.
G. For purposes of conducting the performance audit prescribed in Section 201(h)(2) of Pub. L. 111-291 based on a statistical sampling of adjudicated claims relating to this Agreement, the Inspector General of the Department of Agriculture shall have access, upon request, to the Claims Administrator, the Track A Neutral, and the Track B Neutral, and to any information and records generated, used, or received by them, including but not limited to names and addresses.
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VI. OMBUDSMAN
A. The Court may appoint an independent Ombudsman, who shall report directly to the Court. The Ombudsman shall not be removed except for good cause and shall serve for as long as the Court has continuing jurisdiction to enforce the Settlement Agreement. The Ombudsman's fees, costs, and expenses (“Ombudsman Costs”) shall be paid separately from Implementation Costs, from the Designated Account, upon Court approval.
B. The Ombudsman shall:
1. Be available to Class Members and the public through a toll-free telephone number in order to address concerns about implementation of this Settlement Agreement;
2. Attempt to address any concerns or questions that any Class Member may have with respect to the implementation of this Settlement Agreement;
3. Make periodic written reports (not less than every six months) to the Court, the Secretary, and Class Counsel on the good faith implementation of this Settlement Agreement;
4. Have access to the records maintained by the Claims Administrator and the Neutrals involved in the claims process; and
5. Make recommendations to the Court relating to the implementation of this Settlement Agreement.
C. The Ombudsman shall not have the power to alter in any way substantive claims decisions made by the Neutrals or the Claims Administrator, nor shall the Ombudsman have the power to direct the Secretary and/or the United States to take any actions pursuant to this Settlement Agreement.
VII. ACCELERATIONS AND FORECLOSURES
A. The Secretary agrees to refrain from accelerating or foreclosing any FSA Farm Loan Program loan held by a Class Member that originated between January 1, 1981, and December 31, 1996, until the quarterly report provided in Section V.E.3 reports that the Class Member is not eligible for a Track A Award or a Track B Award under Section V.C.5 or V.D.5.
B. This Section does not: 32

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1. Prohibit the Secretary from taking any action up to, but not including, acceleration or foreclosure that is necessary to protect his interests or service a loan under applicable law; or
2. Apply to a loan that is the subject of:
a. a judicial proceeding in which the United States is a party pending as of the Execution Date, or
b. a non-judicial foreclosure proceeding initiated under state law by or on behalf of the United States pending as of the Execution Date.
VIII. THE DUTIES OF CLASS COUNSEL
A. Class Counsel, under the direction of Lead Class Counsel, shall:
1. Perform all duties set forth in Federal Rule of Civil Procedure 23, those ordered by the Court, and those provided for in this Agreement;
2. Provide representation without additional charge to Claimants who elect to submit claims under Track A;
3. Obtain from the Pigford Facilitator (a) a current version of the Pigford Timely 5(g) List, (b) copies of all late-filing requests, (c) all other available information and correspondence regarding the late-filing status of Class Members, including any lists prepared by the Pigford Facilitator reflecting such status, (d) the Pigford Participants List, and (e) the Pigford Opt-Out List. Lead Class Counsel shall make these materials available to the Claims Administrator and the Track A and B Neutrals. This information shall be subject to any existing or future protective orders of the Court;
4. Upon request by a Claimant or Individual Counsel representing a Claimant and after proof of compliance with any existing or future protective orders of the Court, provide to such Individual Counsel or Claimant verification of the Claimant’s presence on the most recent Pigford Timely 5(g) List, Pigford Participants List, and Pigford Opt-Out List in Class Counsel’s possession as well as copies of any of the communications or information in Class Counsel’s possession that refer or relate to the Claimant on whose behalf the request is made;
5. Provide the Court-approved Notice of this Agreement to Class Members;
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6. Answer Class Member questions and respond to issues raised by the Ombudsman;
7. Provide information to Class Members regarding the status of claims processing or the distribution of the funds provided under this Agreement; and
8. Perform other such duties as may be incidental to proper coordination of this Agreement. Class Counsel shall have no obligation to perform any legal work for any Class Member related to the probate of a Class Member’s estate, including the appointment of executors or legal representatives.
B. Lead Class Counsel shall be responsible for general coordination and direction of the activities of all other Class Counsel. In performing this responsibility, Lead Class Counsel shall:
1. Determine and present the position of the Class on any matters arising during Court proceedings, including any proceedings relating to class certification and the approval and implementation of this Agreement;
2. Coordinate and direct the efforts of all counsel acting on behalf of Class Members so as to assist Class Members with completing claims, provide accurate and timely information to Class Members, allocate work load to Class Counsel, and ensure that all Class Counsel assigned to represent Class Members are performing the work allocated to them. (In this regard, certain counsel who are signatories to this Settlement Agreement have agreed to share responsibility for work performed on behalf of Class Members in the percentages set forth in a Counsel Participation Agreement that will be provided to the Court with Class Counsel’s fee petition.);
3. Develop and enforce time reporting requirements for all other counsel acting on behalf of the Class and maintain a database of all reported time and expenses by counsel acting on behalf of the Class;
4. Prepare and file a fee petition with the Court;
5. Subject to approval by the Court, retain and dismiss the Claims Administrator and the Track A and B Neutrals, and ensure that these administrators do not incur costs that would cause the Implementation Costs to exceed the Cost Cap;
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6. Retain and dismiss other vendors and providers as appropriate to assist in the implementation of the Agreement;
7. Direct and oversee the implementation and dissemination of notice of this Agreement to Class Members, and control or direct all communications with Class Members subject to approval and oversight by the Court if required by Federal Rule of Civil Procedure 23;
8. Develop the content of a Settlement Website (to be approved by the Court) and ensure its proper use and administration;
9. Plan, develop and conduct meetings or seminars designed to provide notice or assistance to Class Members regarding this Agreement;
10. Conduct additional or supplemental negotiations on behalf of the Class (in consultation with the Plaintiffs’ Steering Committee), if necessary;
11. Delegate specific tasks to other counsel or committees of counsel in a manner to ensure the Agreement is effectuated and adequate notice and assistance with the submission of claims is provided to Class Members;
12. Work with the Secretary’s Counsel as necessary for the conduct of this Agreement and its approval and implementation under Federal Rule of Civil Procedure 23;
13. Prepare and distribute periodic status reports and any accountings required by this Agreement to Class Members, the Court, or the Secretary as appropriate;
14. Maintain adequate time and disbursement records covering services as Lead Class Counsel and develop and enforce time reporting requirements for all other counsel acting on behalf of the Class;
15. Monitor and redirect the activities of Class Counsel to ensure that schedules are met and unnecessary expenditures of time and funds are avoided;
16. Develop procedures and methods to provide Class Members with answers to frequently asked questions, to respond to issues raised by the Ombudsman, to assist with the claims process and the distribution of funds provided under this Agreement, and to wind up the administration of this Agreement when appropriate; and
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17. Coordinate all communications among counsel working on behalf of individual Class Members (both Class Counsel and Individual Counsel), and all communications among Class Counsel acting on behalf of the Class
18. Perform other such duties as may be incidental to proper coordination of this Agreement.
C. Under the direction of Lead Class Counsel, the Plaintiffs’ Steering Committee shall assist Lead Class Counsel in the performance of their duties, including:
1. Overseeing the quality and allocation of work among Class Counsel; and
2. Performing other such duties as may be incidental to proper coordination of this Agreement.
IX. PROCEDURES GOVERNING APPROVAL OF THIS AGREEMENT
A. Within twenty (20) business days of the Execution Date, the Signatory Plaintiffs shall submit this Agreement and its Exhibits and a Motion for Preliminary Approval to the Court. The Motion shall specifically request that the Court set a hearing on the Motion and be accompanied by a proposed Preliminary Approval Order, a proposed Settlement Notice, and a proposed Settlement Notice Plan. The Motion shall specifically request that the Court:
1. Certify, for settlement purposes only, a Federal Rule of Civil Procedure 23(b)(1) limited fund, non-opt-out class as defined by this Agreement;
2. Appoint some of the Signatory Plaintiffs as Representatives for the Class pursuant to Federal Rule of Civil Procedure 23(a)(4);
3. Appoint Class Counsel pursuant to Federal Rule of Civil Procedure 23(g) and order that Class Counsel perform the duties set forth in this Agreement. Signatory Plaintiffs, in their Motion, will propose specific individuals as Class Counsel;
4. Designate Lead Class Counsel and the Plaintiffs’ Steering Committee. Signatory Plaintiffs, in their Motion, will propose specific individuals for these designations;
5. Preliminarily approve this Agreement;
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6. Approve the Signatory Plaintiffs’ selection of a Claims Administrator and Neutrals to perform the duties set forth in this Agreement within the cost controls set out in this Agreement. The Claims Administrator and the Neutrals will be designated by Signatory Plaintiffs’ Counsel prior to the date of the requested hearing on the Preliminary Approval Motion;
7. Approve the Signatory Plaintiffs’ plan for dissemination of notice of this Agreement pursuant to Federal Rule of Civil Procedure 23(e)(1);
8. For purposes of the notice to be provided to members of the Class, preliminarily determine the cap on Track A Individual Counsel Fees and the Track B Fees;
9. For purposes of the notice to be provided to members of the Class, preliminarily approve a range of Common Benefit Fees between 4.1% and 7.4% of the Fee Base;
10. Set a date and procedure by which objections from Class Members must be filed;
11. Set a date for a hearing (the “Fairness Hearing”) to consider whether the Agreement should be approved under Federal Rule of Civil Procedure 23(e);
12. Enter a Federal Rule of Civil Procedure 26(c) protective order regarding the dissemination of the personal information contained in the Pigford Participants List, the Pigford Opt-Out List, the Pigford Timely 5(g) List, and the information and correspondence maintained by the Pigford Facilitator regarding the late-filing status of Claimants; and
13. Authorize the Secretary to pay into the Designated Account the funds specified in Sections IV.C, IV.D, IV.F, and IV.G and order that the expenditure of such funds for purposes of this Agreement are a proper and consistent use of the funds, and that the Secretary shall not be liable in any other context or proceeding for these funds in the event that the Agreement becomes void or is voided.
B. The Signatory Plaintiffs shall provide the Secretary with a draft of the Motion for Preliminary Approval and accompanying exhibits ten (10) business days prior to filing such papers. .
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C. No later than three (3) business days before the Fairness Hearing, Lead Class Counsel shall file with the Court a declaration confirming compliance with the Notice procedures approved by the Court.
D. At the Fairness Hearing, the Parties will each request that the Court finally approve this Agreement pursuant to Federal Rule of Civil Procedure 23(e), order all existing retainer agreements for Section 14012 claims between prospective Class Members and their attorneys be modified to conform to the fee provisions of this Agreement; finally approve the Track A Fee Cap and Track B Fee Cap; and finally approve the distribution of any remaining funds pursuant to Section IV of this Agreement. The Parties agree to take all actions necessary to obtain approval of this Agreement.
X. ATTORNEYS’ FEES, EXPENSES, AND COSTS
A. As part of the Motion for Preliminary Approval of this Agreement, Signatory Plaintiffs will move the Court to preliminarily approve a cap on Track B Fees of 8% of a Track B Claimant’s Final Award and a cap on Track A Individual Counsel Fees of 2% of a Track A Claimant’s Final Award. As part of the Motion for Final Approval of this Agreement, Signatory Plaintiffs will move the Court to finally approve a cap on Track B Fees of 8% of a Track B Claimant’s Final Award and a cap on Track A Individual Counsel Fees of 2% of a Track A Claimant’s Final Award.
B. As part of the Motion for Preliminary Approval, Signatory Plaintiffs will move the court to preliminarily approve the range of the Fee Award, for purposes of notice to the Class, between 4.1% and 7.4% of the Fee Base. No later than sixty (60) days after the Claim Deadline, Class Counsel will move the Court to set the amount of the Fee Award, except that the amount of the Fee Award shall be at least 4.1% and not more than 7.4% of the Fee Base. Lead Class Counsel shall have sole responsibility to prepare and file a petition with the Court seeking approval of, and setting the amount for, the Fee Award prior to receiving any fees under this Agreement.
C. The Secretary reserves the right to respond to the fee petition in full and reserves the right to argue that the Fee Award should be limited to 4.1% of the Fee Base.
D. The Court’s determination of the Fee Award, the cap on Track A Individual Counsel Fees, and the cap on Track B Fees shall be conclusive, and neither the Class, nor Class Counsel, nor the Secretary shall appeal the decision.
E. Class Counsel shall be paid Common Benefit Fees for their reasonable and compensable work on behalf of the Class. The total amount of Common Benefit 38

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Fees shall equal the Fee Award minus the sum of Track B Fees the Claims Administrator caused to be paid. Class Counsel may accept interim payments of Common Benefit Fees, costs, and expenses from funds designated in Section IV.F. Certain Signatory Plaintiffs’ Counsel have entered into a Counsel Participation Agreement which reflects their agreement regarding allocation of work and distribution of fees. This Counsel Participation Agreement will be submitted to the Court with Class Counsel’s fee petition.
F. Except for the payments to the Designated Account required under Section IV, the Secretary shall not be liable to pay Class Counsel, Signatory Plaintiffs’ Counsel, or Individual Counsel any attorneys’ fees, expenses, or costs.
G. The Class Representatives, the Class, and/or Class Counsel may not terminate this Agreement because the Class Representatives, the Class, and/or Class Counsel assert that the amount of the Fee Award, the cap on Track A Individual Counsel Fees, or the cap on Track B Fees is inadequate.
H. The Class Representatives, the Class, Class Counsel, and Individual Counsel release, acquit, and forever discharge any claim that they may have against the Secretary for attorneys’ fees, expenses, or costs associated with their representation of the Signatory Plaintiffs, the Class, or any Member of the Class in the Consolidated Case or under this Agreement.
I. If a person preparing a claim on a Claimant’s behalf seeks the Claimant’s award as a representative of the Claimant’s estate, Class Counsel and Individual Counsel may, but are not required to, represent that Claimant in any probate proceedings. The fee for such probate work is outside the scope of this Agreement and is not subject to any limitation on attorneys’ fees, expenses, or costs contained within this Agreement.
XI. CONDITIONS THAT RENDER AGREEMENT VOID OR VOIDABLE
A. With the exception of Section XII,
1. This Agreement shall be voidable by the Secretary if, at any time prior to the Effective Date or the Preliminary Final Accounting Date, whichever is later, Congress appropriates additional funds such that the total of all funds appropriated for Section 14012 claims exceeds $1,250,000,000. The Secretary shall have sixty (60) calendar days from the date that this Agreement becomes voidable to notify Class Counsel that he is exercising the option to void this Agreement.
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2. This Agreement shall be void if, at any time prior to the Effective Date or Preliminary Final Accounting Date, whichever is later, Congress appropriates additional funds, from the Judgment Fund, 31 U.S.C. § 1304, or any other source, or otherwise legislates to cause the 2010 Funds to be unlimited or without a maximum cap.
3. This Agreement shall be voidable by the Secretary if, prior to the Effective Date, Congress alters or amends Section 14012 to (a) expand or contract the cause of action set forth in Section 14012(b); (b) expand or contract the group of individuals eligible to file claims under Section 14012; and/or (c) impose new burdens or obligations under Section 14012 on the Secretary and/or the United States beyond those set forth in Section 14012 as of June 18, 2008. The Secretary shall have sixty (60) calendar days from the date that this Agreement becomes voidable to notify Class Counsel that it is exercising the option to void this Agreement.
4. This Agreement shall be voidable by the Secretary or the Class if the Court does not approve this Agreement in full, including the amount of the Fee Award, or if the Court’s order granting final approval of this Agreement is reversed on appeal. The Secretary and/or the Class shall have sixty (60) calendar days from the date of such decision to notify the other party that it is exercising its option to void this Agreement.
XII. EFFECT OF AGREEMENT IF VOIDED
A. Should this Agreement become void or be voided as set forth in Section XI,
1. The Secretary will not object to reinstatement of the individual complaints dismissed under this Agreement.
2. All negotiations in connection herewith, and all statements made by the Parties at or submitted to the Court during the Fairness Hearing shall be without prejudice to the Parties to this Agreement and shall not be deemed or construed to be an admission by a Party of any fact, matter, or proposition.
3. The Secretary retains all defenses, arguments, and motions as to all claims that have been or might later be asserted in the Consolidated Case, and nothing in this Agreement shall be raised or construed by any Signatory Plaintiff, Claimant, Class Representative, Class, or Class Counsel, to defeat or limit any defenses, arguments, or motions asserted by the Secretary. Neither this Agreement, nor the fact of its having been made, nor any exhibit or other document prepared in connection with this 40

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Agreement, shall be admissible, entered into evidence, or used in any form or manner in discovery, over the objection of the Secretary in the Consolidated Case or in any other action or proceeding for any purpose whatsoever.
4. With the exception of the Release provided in Section XII.A.5 below, Signatory Plaintiffs, Claimants, and Class Members shall retain all rights, claims, causes of action, arguments, and motions as to all claims that have been or might later be asserted in the Consolidated Case, and nothing in this Agreement shall be raised by the Secretary or the Secretary’s Counsel to defeat or limit any rights, claims, causes of action, arguments, or motions asserted by any Claimants and/or the Class. With the exception of the Release provided in Section XII.A.5 below, neither this Agreement, nor the fact of its having been made, nor any exhibit or other document prepared in connection with this Agreement, shall be admissible, entered into evidence, or used in any form or manner in discovery, over the objection of any Signatory Plaintiffs, Claimants, and/or the Class in the Consolidated Case or in any other action or proceeding for any purpose whatsoever.
5. The Signatory Plaintiffs hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE the United States and the Secretary from, and are hereby FOREVER BARRED and PRECLUDED from prosecuting, any and all claims, causes of action, or requests for any monetary relief, including, but not limited to, damages, tax payments, debt relief, costs, attorneys’ fees, expenses, and/or interest that, whether presently known or unknown, related to the funds that the Secretary has paid pursuant to Sections IV.C, IV.D, IV.F, and/or IV.G. Neither the Signatory Plaintiffs nor Signatory Plaintiffs’ Counsel shall be obligated to repay any interim Implementation Costs, interim Common Benefit Fees, and/or Ombudsman Costs paid by the Secretary under Sections IV.C, IV.D, IV.F, and/or IV.G, but Signatory Plaintiffs’ Counsel who have received interim Common Benefit Fees under this Agreement agree not to seek from the United States, the Secretary, or any other source any additional fees for the work compensated by the interim fees.
XIII. RELEASES
A. The Class Representatives, the Class, and its Members and their heirs, administrators, successors, and assigns (the “Class Releasors”) hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE the United States and the Secretary (the “Government Releasees”) from, and are hereby FOREVER BARRED and PRECLUDED from prosecuting, any and all claims, causes of 41

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action, or requests for any monetary relief, including, but not limited to, damages, tax payments, debt relief, costs, attorneys’ fees, expenses, and/or interest, whether presently known or unknown, that have been or could have been asserted in the Consolidated Case by reason of, with respect to, in connection with, or which arise out of, any matters alleged in the Consolidated Case that the Class Releasors, or any of them, have against the Government Releasees, or any of them.
B. The Class Releasors hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE any and all rights they have or may have under Public Law No. 110-234 and/or 110-246, § 14012 (2008) and each of its provisions.
C. The Class Releasors hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE any and all rights they have or may have to request or obtain any information, documents, testimony, or discovery in the Consolidated Case or under § 14012 from the Government Releasees.
XIV. NO ADMISSION OF LIABILITY
A. Neither this Agreement nor any order approving it is or shall be construed as an admission by the Secretary and/or the United States of the truth of any allegation or the validity of any claim asserted in the Consolidated Case, or of the liability of the Secretary and/or the United States, nor as a concession or an admission of any fault or omission of any act or failure to act, or of any statement, written document, or report heretofore issued, filed or made by the Secretary and/or the United States, nor shall this Agreement nor any confidential papers related hereto and created for settlement purposes only, nor any of the terms of either, be offered or received as evidence of discrimination in any civil, criminal, or administrative action or proceeding, nor shall they be the subject of any discovery or construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of the Secretary and/or the United States, nor as an admission by any Party to this Agreement that the consideration to be given hereunder represents the relief which could have been recovered after trial.
B. The Secretary and the United States deny liability and damages as to each of the claims and requests for damages that were or could have been raised in the Consolidated Case, and this Agreement does not constitute, and may not be construed as, a determination or an admission of a violation of any law, rule, regulation, policy, or contract by the Secretary and/or the United States, the truth of any allegation made in the Consolidated Case, or the validity of any claim asserted in the Consolidated Case. This Agreement does not constitute, and may not be construed as, a determination or an admission that the Secretary and/or the United States is liable in this matter, that the Class or any Member is a prevailing 42

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party, that the Class or any Member was substantially justified in any claim or position, or that any claim, defense, or position of the United States was substantially unjustified.
C. Neither the determination to pay money nor the payment of money under the Non-Judicial Claims Process (Section V) shall be deemed to be a finding of fact, conclusion of law, or an admission of liability or damages by the Secretary and/or the United States, and any such determination to pay money or the payment of money under the Non-Judicial Claims Process (Section V) shall not be admissible in any civil, criminal, or administrative action or proceeding, nor shall it be construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of the Secretary and/or the United States, nor as an admission by any Party to this Agreement that the consideration to be given hereunder represents the relief which could have been recovered after trial.
D. Nothing herein shall be construed to preclude the use of this Agreement to enforce the terms thereof.
XV. CONTACT INFORMATION FOR THE SECRETARY AND FSA
A. The reports, forms, transmissions, accountings, and documentation that must or may be provided to the Secretary under this Agreement shall be sent via electronic transmission or overnight delivery to (1) Counsel of Record for the Secretary in the Consolidated Case, and (2) General Counsel, U.S. Department of Agriculture, 1400 Independence Avenue SW, Washington, DC 20250.
B. The reports, forms, transmissions, accountings, documentation, and checks that must or may be provided to FSA under this Agreement shall be sent via electronic transmission or overnight delivery to Deputy Administrator, Farm Loan Programs U.S. Department of Agriculture, Farm Service Agency, 1400 Independence Avenue SW, Washington, DC 20250, STOP 0520.
XVI. CONTINUING JURISDICTION
Notwithstanding the dismissal of claims on the Final Approval Date under Section IV.A, the Court shall retain continuing jurisdiction to oversee and enforce this Agreement until two-hundred (200) days after the date the Final Accounting in Section V.F is completed.
XVII. INTEGRATION This Agreement and its Exhibits constitute the entire agreement of the Parties, and no prior statement, representation, agreement, or understanding, oral or written, that is not contained herein, will have any force or effect.
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XVIII. MODIFICATION A. Before the Preliminary Approval Date, this Agreement, including the attached exhibits, may be modified upon written agreement of the Parties. B. After the Preliminary Approval Date, this Agreement, including the attached exhibits, may be modified only with the written agreement of the Parties and with the approval of the Court, upon such notice to the Class, if any, as the Court may require.
XIX. DUTIES CONSISTENT WITH LAW AND REGULATIONS Nothing contained in this Agreement shall impose on the Secretary any duty, obligation, or requirement, the performance of which would be inconsistent with federal statutes or federal regulations in effect at the time of such performance.
XX. DUTY TO DEFEND The Parties to this Agreement shall defend against any challenges to it in any forum.
XXI. HEADINGS The headings in this Agreement are for the convenience of the Parties only and shall not limit, expand, modify, or aid in the interpretation or construction of this Agreement.
XXII. SEVERABILITY Should any non-material provision of this Agreement be found by a court to be invalid or unenforceable, then (A) the validity of other provisions of this Agreement shall not be affected or impaired, and (B) such provisions shall be enforced to the maximum extent possible.
XXIII. COUNTERPARTS This Agreement may be executed in counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement:
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APPENDIX 1
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Calculation of Final Awards
I. Pursuant to Section V.E.5 of the Settlement Agreement, individual Track A Awards and Track B Awards are calculated as follows:
A. In order to calculate each Class Member’s Final Award(s), the Claims Administrator shall do as follows:
1. First, if the sum total of all Track B Awards exceeds the Track B Cap,
a. The Claims Administrator shall divide each Class Member’s Track B Award by the sum total of all Track B Awards to obtain that Class Member’s “Track B Percentage.”
b. Then, the Claims Administrator shall multiply each Class Member’s Track B Percentage by the Track B Cap to obtain the Class Member’s “Modified Track B Award.” The Claims Administrator shall then replace the Track B Award indicated in Part V of the Class Member’s Track B Determination Form with his or her Modified Track B Award. This Modified Track B Award shall serve as the Class Member’s “Track B Award” or “Provisional Track B Award” for purposes of this Section.
2. Next, the Claims Administrator shall calculate the Sum of Available Funds and the Sum of Awards. The Sum of Available Funds is the lesser of (a) the sum of the 2010 Funds plus the 2008 Funds, minus the difference between the Fee Award and the product of the cap on Track B Fees set by the Court in Settlement Agreement Section X.A multiplied by the Sum of Provisional Track B Awards (as modified by Appx. Section I.A.1), minus the incurred and anticipated final Implementation Costs, minus the incurred and anticipated Ombudsman Costs; or (b) the sum of all Provisional Track A Liquidated Awards, Provisional Track A Loan Awards, Provisional Track A Tax Awards, and Provisional Track B Awards, as shown on Part V of the Track A Claim Determination Forms (Ex. A). The Sum of Awards is the sum of all Provisional Track A Liquidated Awards, Provisional Track A Loan Awards, Provisional Track A Tax Awards, and Provisional Track B Awards, as shown on Part V of the Track A and Track B Claim Determination Forms (Exs. A and B).
3. If the Sum of Available Funds is equal to or exceeds the Sum of Awards, each prevailing Track A Class Member’s Final Track A Liquidated Award, if applicable, shall be equal to the Provisional Track A Liquidated Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A). Each prevailing Track A Class Member’s Final Track A Loan Award, if applicable, shall be equal to the Provisional Track A Loan Award in Part V of that Class Member’s Track A Claim Determination Form. Each prevailing Track A Class Member’s Final Track A Tax Award, if applicable, shall be equal to the Provisional Track A Tax Award in Part V of that Class Member’s Track A Claim Determination Form. Each prevailing Track B Class Member’s Final Track B
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Award, if applicable, shall be equal to the Provisional Track B Award in Part V of that Class Member’s Track B Claim Determination Form (Ex. B).
4. If the Sum of Available Funds is less than the Sum of Awards:
a. For each prevailing Class Member whose Late-Filing Request was submitted after September 15, 2000, the Claims Administrator shall reduce by 30% the Class Member’s Provisional Track A Liquidated Award, Provisional Track A Loan Award, Provisional Track A Tax Award, and Provisional Track B Award, and so modify Part V of the Class Member’s Track A or Track B Claim Determination Form. The Claims Administrator shall then recalculate the total of all Provisional Track A Awards and Provisional Track B Awards to obtain a Revised Sum of Awards.
(1) If the Revised Sum of Awards is more than the Sum of Available Funds,
(a) The Claims Administrator shall divide the Sum of Available Funds by the Revised Sum of Awards to obtain a percentage. This percentage shall be called the “Second Percentage.”
(b) Each prevailing Track A Class Member’s Revised Track A Liquidated Award, if applicable, shall be equal to the Second Percentage multiplied by the Provisional Track A Liquidated Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A). Each prevailing Track A Class Member’s Revised Track A Loan Award, if applicable, shall be equal to the Second Percentage multiplied by the Provisional Track A Loan Award in Part V of that Class Member’s Track A Claim Determination Form. Each prevailing Track A Class Member’s Revised Track A Tax Award, if applicable, shall be equal to the Second Percentage multiplied by the Provisional Track A Tax Award in Part V of that Class Member’s Track A Claim Determination Form multiplied by the Second Percentage. Each prevailing Track B Class Member’s Revised Track B Award, if applicable, shall be equal to the Second Percentage multiplied by the Provisional Track B Award in Part V of that Class Member’s Track B Claim Determination Form (Ex. B).
(2) If the Revised Sum of Awards is less than the Sum of Available Funds,
(a) First, the Claims Administrator shall subtract the Revised Sum of Awards from the Sum of Available Funds to
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determine the “Leftover Interim Reduced Funds.”
(b) Second, for each Class Member subject to the 30% reduction, the Claims Administrator shall calculate that Class Member’s “Percentage of Leftover Reduced Funds” by dividing the Class Member’s Provisional Track A or Track B Award (reduced by 30%) by the sum of all Provisional Awards subject to the 30% reduction.
(c) Third, for each Class Member subject to the 30% reduction, the Claims Administrator shall multiply the Class Member’s Percentage of Leftover Reduced Funds times the Leftover Interim Reduced Awards to obtain that Class Member’s “Leftover Funds Enhancement.”
(d) Fourth, for each Class Member subject to the 30% reduction, the Claims Administrator shall (a) divide the Class Member’s Provisional Track A Liquidated Award by the Class Member’s Provisional Track A Award to obtain the Class Member’s “Liquidated Award Percentage,” (b) divide the Class Member’s Provisional Track A Loan Award by the Class Member’s Provisional Track A Award to obtain the Class Member’s “Loan Award Percentage,” and (c) divide the Class Member’s Provisional Track A Tax Award by the Class Member’s Provisional Track A Award to obtain the Class Member’s “Tax Award Percentage.”
(e) For each Class Member subject to the 30% reduction,
(i) The Class Member’s Revised Track A Liquidated Award, if applicable, shall be equal to the sum of (1) the Class Member’s Liquidated Award Percentage multiplied by the Leftover Funds Enhancement, and (2) 70% of the Provisional Track A Liquidated Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(ii) The Class Member’s Revised Track A Loan Award, if applicable, shall be equal to the sum of (1) the Class Member’s Loan Award Percentage multiplied by the Leftover Funds Enhancement, and (2) 70% of the Provisional Track A Loan Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(iii) The Class Member’s Revised Track A Tax Award, if applicable, shall be equal to the sum of (1) the
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Class Member’s Tax Award Percentage multiplied by the Leftover Funds Enhancement, and (2) 70% of the Provisional Track A Tax Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(iv) The Class Member’s Revised Track B Award, if applicable, shall be equal to the sum of (1) the Class Member’s Leftover Funds Enhancement, and (2) 70% of the Provisional Track B Award in Part V of that Class Member’s Track B Claim Determination Form (Ex. B).
(f) For each Class Member not subject to the 30% reduction,
(i) The Class Member’s Revised Track A Liquidated Award, if applicable, shall be equal to the Provisional Track A Liquidated Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(ii) The Class Member’s Revised Track A Loan Award, if applicable, shall be equal to the Provisional Track A Loan Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(iii) The Class Member’s Revised Track A Tax Award, if applicable, shall be equal to the Provisional Track A Tax Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(iv) The Class Member’s Revised Track B Award, if applicable, shall be equal to the Provisional Track B Award in Part V of that Class Member’s Track B Claim Determination Form (Ex. B).
B. Next, the Claims Administrator shall calculate the Provisional Track B Fee for each Class Member by multiplying each Class Member’s Revised Track B Award by the fee percentage indicated by the Class Member in Part IX of the Class Member’s Claim Form. The Claims Administrator shall then calculate the sum of all Provisional Track B Fees.
C. If the Claims Administrator determined that the Sum of Available Funds was less than the Sum of Awards (i.e., Revised Awards were calculated under Appx. Section I.A.4), then the Claims Administrator shall calculate the Class Member’s Final Awards as follows:
1. If the Sum of Available Funds was calculated using Appx. Section I.A.2.(a), the Claims Administrator shall divide (1) the Sum of Available Funds minus (a) the 5

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 73 of 110 difference between (i) the cap on Track B Fees set by the Court in Settlement Agreement Section X.A multiplied by the Sum of Provisional Track B Awards and (ii) all Track B Fees calculated in Appx. Section I.B by (2) the Sum of Available Funds, to obtain the “Available Funds Multiplier.” The Claims Administrator shall then calculate each Class Member’s Final Track A Liquidated Award, Final Track A Loan Award, Final Track A Tax Award, Final Track B Award, and Final Track B Fee by multiplying each Revised Award by the Available Funds Multiplier.
2. If the Sum of Available Funds was calculated using Section I.A.2.(b), the Revised Awards calculated in Appx. Section I.A.4 are the Class Members’ Final Awards, and the Provisional Track B Fee calculated in Section I.B, if applicable, is the Class Member’s Final Track B Fee.
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Appendix 1a

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SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)
EXAMPLES OF CLAIM CALCULATIONS
The following provides illustrative examples to demonstrate how variations in the number of successful Claimants may affect the amount of the payments made to successful Class Members, as determined by the procedures set forth in Appendix 1 of the Settlement Agreement. Calculation of Final Awards under the Settlement is a two-step process. First, the Claims Administrator must apply the aggregate Track B Cap to the Track B Awards. After that is done, the Claims Administrator must determine whether reductions apply to each award based on the number of successful Class Members and the availability of funds. These types of calculations are illustrated below.
I. Application of Track B Cap
Under the terms of the Settlement Agreement, successful Track B Class Members are entitled to an award equal to “the amount of [their] actual damages, up to $250,000.” However, Track B Awards, in the aggregate, are capped at $100 million. Thus, assuming the total funding appropriated by Congress for black farmer claims is $1.25 billion, the total of all Track B Awards would be capped at $100 million.
The following chart illustrates the application of the Track B Cap, as prescribed by Section I.A.1 of Appendix 1. For illustrative purposes, we assume a $100 million Track B Cap applies, and that only two uniform groups of successful Track B Claimants are entitled to awards – (1) Group B1, each member of which is eligible for a $250,000 Track B Award (based on proof of actual damages of $250,000 or more); and (2) Group B2, each member of which is eligible for a $100,000 Track B Award (based on proof of actual damages of $100,000).

Number of Successful Track B Claimants
Group B1 – 100 Claimants ($250,000 per claim) Group B2 – 500 Claimants ($100,000 per claim)

Total Amount of
Proven Claims
$75 million

Percent of Track B Award Provided After Application of Track B Cap

Adjusted Track B Award after Application of the
Track B Cap

100%

Group B1 – $250,000 per claim Group B2 – $100,000 per claim

Group B1 – 500 Claimants ($250,000 per claim) $200 million
Group B2 – 750 Claimants ($100,000 per claim)

Group B1 – $125,000 per claim 50%
Group B2 – $50,000 per claim

Group B1 – 1,000 Claimants ($250,000 per claim) $400 million
Group B2 – 1,500 Claimants ($100,000 per claim)

Group B1 – $62,500 per claim 25%
Group B2 – $25,000 per claim

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II. Calculation of Awards After Application of the Track B Cap
After application of the Track B Cap to Track B Awards, the Claims Administrator is required to calculate the Final Award for each successful Class Member based on the number of successful Class Members and the overall availability of funds. Under the Settlement, Track A Class Members are eligible to recover three categories of damages: (1) liquidated damages of $50,000 for credit claims and/or $3,000 for non-credit claims; (2) a loan award equal to the amount of outstanding debt the Class Member owes to USDA/FSA; and (3) a tax award equal to 25% of the sum of the liquidated damages award and the loan award. The Settlement makes a distinction between “Late Filers” – i.e., those Class Members who filed Late-Filing Requests in Pigford on or between October 13, 1999 and September 15, 2000 – and “Late-Late Filers” – i.e., those Class Members who filed Late-Filing Requests in Pigford on or between September 16, 2000 and June 18, 2008. To the extent that Congress does not appropriate sufficient funds to pay all Track A and Track B Class Members in full, the Settlement Agreement provides for a reduction of up to 30% in the awards for LateLate Filers. If a 30% reduction for Late-Late Filers is insufficient to bring total awards within the amount of available funds, all awards to successful Class Members – both Late Filers and Late-Late Filers – will be subject to reduction to conform the awards to the amount of available funds. The following chart illustrates the calculations prescribed by Section I.A.2-4, I.B, and I.C. of Appendix 1, based on variation in the number of successful Class Members.
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Final Awards for Track A and Track B Class Members

Number of Successful Class Members by Type
Group A1 (“Late Filers”) = 6,000 Claimants Group A2 (“Late-Late Filers”) = 1,500 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

Total Number of Successful
Class Members

Track A Late Filers
(A1) (per claim)

Amount of Awards

(With “Lower Costs”/With “Higher Costs”)

Track A

Track B

Track B

Late-Late Filers

Late Filers

Late-Late Filers

(A2)

(B1)

(B2)

(per claim)

(per claim)

(per claim)

7,800

$75,000 / $75,000 $75,000 / $75,000 $250,000 / $250,000 $250,000 / $250,000

#1

#2

#3

Scenario Scenario Scenario Scenario Scenario

Group A1 (“Late Filers”) = 9,600 Claimants Group A2 (“Late-Late Filers”) = 2,400 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

12,300

$75,000 / $75,000 $75,000 / $75,000 $250,000 / $250,000 $250,000 / $250,000

Group A1 (“Late Filers”) = 12,000 Claimants Group A2 (“Late-Late Filers”) = 3,000 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

15,300

$75,000 / $74,847 $70,410 / $52,393 $250,000 / $249,490 $234,700 / $174,643

#4

Group A1 (“Late Filers”) = 20,000 Claimants Group A2 (“Late-Late Filers”) = 5,000 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

25,300

$48,555 / $46,012 $33,989 / $32,208 $161,850 / $153,375 $113,295 / $107,363

#5

Group A1 (“Late Filers”) = 40,000 Claimants Group A2 (“Late-Late Filers”) = 10,000 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

50,300

$24,735 / $23,438 $17,315 / $16,406 $82,450 / $78,125 $57,715 / $54,688

The numbers used in this chart are for illustrative purposes only. The sole purpose of this chart is to show how the array of variables might affect the actual recovery of a successful claimant. Even if Congress appropriates the full $1.25 billion that has been sought to fund this settlement, the figures used in this chart should not be relied on as a predictor of how much a successful Track A Claimant will recover because that figure cannot be computed until the total number of successful claimants is established and the actual amounts of Implementation Costs, Ombudsman Costs, and attorneys’ fees are determined.
Accordingly, for illustrative purposes only, this chart assumes that (1) Congress appropriates $1.25 billion to pay successful Section 14012 Claimants; (2) all successful Track A claimants receive a total award of $75,000 (including liquidated damages, debt relief, and tax relief); and (3) all successful Track B claimants receive a total award of $250,000. From there, this chart computes a range of recoveries using different assumptions regarding the number of successful claimants and estimates for the total of Implementation Costs, Ombudsman Costs, and attorneys’ fees that would be deducted from the available settlement funds prior to the calculation and distribution of awards. For purposes of this illustrative chart, the “Lower Costs” figure assumes $15 million for Implementation Costs and Ombudsman Costs, and attorneys’ fees of 4.1%. The “Higher Costs” figure assumes $35 million for Implementation Costs and Ombudsman Costs, and attorneys’ fees of 7.4%.
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EXHIBIT A

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 79 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

“TRACK A” CLAIM DETERMINATION FORM

PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

PART II. SUMMARY OF CLAIM DETERMINATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)
Your Claim is APPROVED. Your Total Award is $_______. From this amount, a payment of $______ has been made on your behalf to the IRS to reduce your expected tax liability associated with this award, and a payment of $______ has been made on your behalf to USDA/FSA to reduce your outstanding Farm Loan Program debt. Enclosed with this Form is a check for the remaining $______. (See Part III)
Your Claim is DENIED. (See Part IV)

Track A Claim Determination Form – Page 1

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 80 of 110

_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART III. EXPLANATION OF APPROVED CLAIM (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

Several months ago, you submitted a Track A claim to the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-0511 (D.D.C.). Since that time, a Neutral has determined that your claim is APPROVED. Enclosed with this Form is a check containing your award. A payment to the Internal Revenue Service (IRS) to reduce your expected tax liability associated with this award has been made on your behalf. If you obtained a Track A Loan Award, a payment to U.S. Department of Agriculture, Farm Service Agency (USDA/FSA) to reduce outstanding Farm Loan Program debt has also been made on your behalf.

Based on the materials you submitted, the following claims were APPROVED:

Track A Credit Claim

Track A Non-Credit Claim

AWARD YOU RECEIVE

TRACK A CREDIT CLAIM

Track A Liquidated Award:

$_________________

Track A Loan Award:

$_________________

Subtotal (Liquidated Award + Loan Award):

$_________________

Track A Tax Award (25% multiplied by the subtotal):

$_________________

TOTAL TRACK A CREDIT CLAIM AWARD:

$_________________

TRACK A NON-CREDIT CLAIM. TOTAL TRACK A NON-CREDIT CLAIM AWARD:

$_________________

TOTAL AWARD:

$_________________________________________

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PAYMENTS MADE AND MONEY YOU RECEIVE
If you received a Loan Award or a Tax Award on a Track A Credit Claim, those payments have already been made by the Claims Administrator to USDA/FSA and the IRS respectively on your behalf. The check contained herein is the remainder of your total award.
$_________________________ (Total Award)
– $_________________________ (Total Track A Loan Award Made to USDA/FSA)
– $_________________________ (Total Track A Tax Award Made to IRS)

CHECK YOU RECEIVE: $_____________________________________________

NOTE: You are responsible for compliance with all applicable federal, state, and local tax requirements that arise as a result of this award. You are encouraged to consult a tax professional if you have any questions about these requirements.
NOTE: If you received a Loan Award (debt payment) as part of your Track A Award, it is possible that the payment did not satisfy the entire amount outstanding on your USDA/FSA loan. In that event, you are responsible for paying the remainder of your outstanding debt. Interest on your debt will continue to accrue unless and until you pay your debt in full, and USDA/FSA maintains any and all options for servicing and recovering outstanding debt, including but not limited to acceleration and foreclosure.
QUESTIONS
If you have any questions, you may contact Class Counsel at [Phone]

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART IV. EXPLANATION OF DENIED CLAIM (TO BE COMPLETED BY THE TRACK A NEUTRAL)

Several months ago, you submitted a Track A claim to the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-0511 (D.D.C.). Since that time, a Neutral has determined that your claim is DENIED.

Your claim is DENIED because (check all that apply):

You failed to prove that you are an African-American farmer.

You failed to prove that you farmed, or attempted to farm, between January 1, 1981, and December 31, 1996.

You failed to prove that you owned or leased, or attempted to own or lease, farm land.

You failed to prove that you applied, or constructively applied, for a specific farm credit transaction or non-credit benefit at a USDA office between January 1, 1981, and December 31, 1996.

You failed to prove that the farm loan or non-credit benefit for which you applied was denied, provided late, approved for a lesser amount than requested, encumbered by a restrictive condition, or that USDA failed to provide an appropriate loan service.

You failed to prove that USDA’s treatment of your loan or non-credit benefit application led to economic damage to you.

You failed to prove that you complained of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of you in response to your application.

THIS DECISION IS FINAL. IT IS NOT REVIEWABLE BY THE CLAIMS ADMINISTRATOR, THE TRACK A NEUTRAL,
THE TRACK B NEUTRAL, THE COURT, OR ANY OTHER PARTY OR BODY, JUDICIAL OR OTHERWISE.

IMPACT ON OUTSTANDING LOAN OBLIGATIONS: Please note that if you are not current on loan payments you owe the USDA, the Secretary of Agriculture may, in view of the denial of your claim, proceed immediately with any loan acceleration or foreclosure proceedings he believes are appropriate.

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART V. PROVISIONAL AWARD FOR APPROVED CLAIMS (TO BE COMPLETED BY THE TRACK A NEUTRAL)
The Claimant is eligible for the following Track A award(s), subject to reduction:
TRACK A CREDIT CLAIM. The Track A Credit Claim is APPROVED. The Claimant is eligible for an award, subject to reduction, as follows:

Track A Liquidated Award ($50,000):
Track A Loan Award: _____________________ FSA Account Number
_____________________ FSA Account Number
_____________________ FSA Account Number
Subtotal (Liquidated Award + Loan Award):
Track A Tax Award (25% multiplied by the subtotal):

$_________________ $_________________ $_________________ $_________________ $_________________ $_________________

TOTAL TRACK A CREDIT CLAIM AWARD:

$_________________

TRACK A NON-CREDIT CLAIM. The Track A Non-Credit Claim is APPROVED. The Claimant is eligible for an award, subject to reduction, as follows:

TOTAL TRACK A NON-CREDIT CLAIM AWARD ($3,000):

$________________

TOTAL AWARD:

$_____________________________________________

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART VI. DATE OF LATE-FILING REQUEST (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)
The Class Member submitted a Late-Filing Request in Pigford on or before September 15, 2000.
The Class Member submitted a Late-Filing Request in Pigford after September 15, 2000.

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EXHIBIT B

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 86 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

“TRACK B” CLAIM DETERMINATION FORM
PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

PART II. SUMMARY OF CLAIM DETERMINATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)
Your Claim is APPROVED. Your Award is $_______. From this amount, a payment of $_______ has been made on your behalf to your attorney to pay his or her fees, costs, and expenses. Enclosed with this Form is a check for the remaining $_______. (See Part III)
Your Claim is DENIED. (See Part IV)
Track B Claim Determination Form – Page 1

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART III. EXPLANATION OF APPROVED CLAIM (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

Several months ago, you submitted a Track B claim to the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-511 (D.D.C.). Since that time, a Neutral has determined that your claim is APPROVED.

AWARD YOU RECEIVE

TOTAL AWARD: $__________________________________________________________
PAYMENTS MADE AND MONEY YOU RECEIVE Payments to your attorney are made automatically from your award. On your Claim Form, you
indicated that you and your attorney have negotiated a Track B Fee of ______% of your Track B Award. $_________________________ (Total Award)
– $_________________________ (Attorney’s Fees, Costs, and Expenses)

CHECK YOU RECEIVE: $______________________________________________________
NOTE: You are responsible for compliance with all applicable federal, state, and local tax requirements that arise as a result of this award. You are encouraged to consult a tax professional if you have any questions about these requirements.
QUESTIONS
If you have any questions, you may contact Class Counsel at [Phone].

Track B Claim Determination Form – Page 2

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART IV. EXPLANATION OF DENIED CLAIM (TO BE COMPLETED BY THE TRACK B NEUTRAL)

Several months ago, you submitted a Track B claim to the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-511 (D.D.C.). Since that time, a Neutral has determined that your claim is DENIED.
Your claim is DENIED because (check all that apply):

You failed to prove that you are an African-American farmer.

You failed to prove that you farmed, or attempted to farm, between January 1, 1981, and December 31, 1996.

You failed to prove that you owned or leased, or attempted to own or lease, farm land.

You failed to prove that you applied for a specific farm credit transaction at a USDA office between January 1, 1981, and December 31, 1996.

You failed to prove that the farm loan for which you applied was denied, provided late, approved for a lesser amount than requested, encumbered by a restrictive condition, or that USDA failed to provide an appropriate loan service.

You failed to prove that USDA’s treatment of your loan application was less favorable than that accorded a specifically identified similarly situated white farmer.

You failed to prove that USDA’s treatment of your loan application led to economic damage to you.

You failed to prove that you complained of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of you in response to your application.

THIS DECISION IS FINAL. IT IS NOT REVIEWABLE BY THE CLAIMS ADMINISTRATOR, THE TRACK A NEUTRAL,
THE TRACK B NEUTRAL, THE COURT, OR ANY OTHER PARTY OR BODY, JUDICIAL OR OTHERWISE.

IMPACT ON OUTSTANDING LOAN OBLIGATIONS: Please note that if you are not current on loan payments you owe the USDA, the Secretary of Agriculture may, in view of the denial of your claim, proceed immediately with any loan acceleration or foreclosure proceedings he believes are appropriate.

Track B Claim Determination Form – Page 3

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 89 of 110

_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART V. PROVISIONAL AWARD FOR APPROVED CLAIM (TO BE COMPLETED BY THE TRACK B NEUTRAL)

The Claimant is eligible for the following Track B Award, subject to reduction:

Track B Award (actual damages up to $250,000):

$_________________ (This award may not exceed $250,000)

The Claimant’s Claim Form indicated that the Claimant negotiated the following Track B Fee with his or her counsel:

Track B Fee (%):

_________________%

PART VI. DATE OF LATE-FILING REQUEST (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

The Class Member submitted a Late-Filing Request in Pigford on or before September 15, 2000.
The Class Member submitted a Late-Filing Request in Pigford after September 15, 2000.

Track B Claim Determination Form – Page 4

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 90 of 110
EXHIBIT C

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 91 of 110
Claim Form – Page 1 of 8

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 92 of 110
EXHIBIT D

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 93 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

AUTHORIZATION TO DISCLOSE DEBT INFORMATION FORM

PART I. REQUEST TO UNITED STATES DEPARTMENT OF AGRICULTURE, FARM SERVICE AGENCY (USDA/FSA)

Claimant’s Last Name:

Claimant’s First Name:

Claimant’s Middle Name:

Claimant’s Suffix:

Claimant’s Full Address (including zip code):

Claimant’s Social Security/Taxpayer I.D. Number:

Address or Other Description of Farm Property that is the Subject of the Claim

Claimant’s USDA/FSA Account Number(s):

I hereby request and authorize USDA/FSA to provide the information about my outstanding USDA/FSA Farm Loan Program loans to the Claims Administrator in In re Black Farmers Discrimination Litigation. I acknowledge and understand that USDA/FSA will not reduce, discharge, or forgive my debt and that interest on my debt will continue to accrue unless and until I have paid the debt in full.

Claimant’s Signature: _____________________________________________________________ Date: ____________________________

PART II. USDA/FSA RESPONSE TO CLAIMS ADMINISTRATOR

This Response is as of: ________________

PRINCIPAL

LOAN #

BALANCE

INTEREST BALANCE

TOTAL

DAILY INTEREST ACCRUAL

USDA/FSA Authorizing Official Signature:_____________________________________

Date Prepared: __________ Page ___ of ____

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 94 of 110
EXHIBIT E

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 95 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

Amount Paid

QUARTERLY DISBURSEMENT REPORTING FORM
For Q___ of 20____ Page ___ of _____

Date Paid

Payee Name & Address

Purpose of Payment

Track A/Track B (if applicable)

(Attach additional pages as necessary)

Quarterly Disbursement Reporting Form – Page 1

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 96 of 110

Total number of payments made during current reporting quarter:
Total amount of payments made during current reporting quarter:
Total number of payments made to date: (inclusive of current and all prior reporting quarters)
Total amount of payments made to date: (inclusive of current and all prior reporting quarters)
Total number of Track A Awards made during current reporting quarter:
Total amount of Track A Awards made during current reporting quarter:
Total number of Track A Awards made to date: (inclusive of current and all prior reporting quarters)
Total amount of Track A Awards made to date: (inclusive of current and all prior reporting quarters)
Total number of Track B Awards during current reporting quarter:
Total amount of Track B Awards made during current reporting quarter:
Total number of Track B Awards made to date: (inclusive of current and all prior reporting quarters)
Total amount of Track B Awards made to date: (inclusive of current and all prior reporting quarters)

__________________________ $_________________________ __________________________
$_________________________
__________________________ $_________________________ __________________________
$_________________________
__________________________ $_________________________ __________________________
$_________________________

I, _____________________________, certify that the above content is true, complete, and accurate.

____________________________ Signature of Class Counsel

_____________ Date

Quarterly Disbursement Reporting Form – Page 2

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 97 of 110
EXHIBIT F

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 98 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

YOUR CLAIM PACKAGE IS NOT COMPLETE
YOU MUST RESPOND WITHIN 30 DAYS OF THE POSTMARK ON THIS MAILING

PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

YOU ARE RECEIVING THIS NOTICE BECAUSE THE CLAIM PACKAGE YOU SUBMITTED IS NOT COMPLETE
AND WE NEED ADDITIONAL INFORMATION
(SEE PARTS II, III, IV, and V)

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 99 of 110

_______________________________ ______________________ ____________________________________

Claimant’s Name (First, Middle, Last) Claimant ID #

Claimant’s Social Security/Taxpayer I.D. #

PART II. ELEMENTS OF A COMPLETE CLAIM PACKAGE

To be eligible for relief, a Claimant must submit:
1) A completed Claim Form.
2) For a Claimant who selects Track A and seeks a payment in recognition of outstanding USDA/FSA Farm Loan Program debt, a completed Authorization to Disclose Debt Information Form.
3) For a Claimant with an attorney, a declaration by the Claimant’s attorney attesting to the attorney’s good faith belief in the truth of the factual basis for the claim.
4) For a Claimant who is deceased, (a) a death certificate and (b) either (i) proof of legal representation, or (ii) a sworn statement describing why the submitting individual believes he or she will be appointed the legal representative of the Claimant’s estate.
5) For a Claimant unable to submit a claim on his or her own behalf due to a physical or mental limitation, (a) proof of legal representation or (b) a sworn statement describing why the Claimant is unable to submit a claim on his or her own behalf and why the submitting individual asserts a right to do so on the Claimant’s behalf.

PART III. DEADLINE FOR SUBMISSION OF A COMPLETE CLAIM PACKAGE
To be eligible for relief, a Claimant must submit a Complete Claim Package by [Claims Deadline]. The submission date is the date of postmark if the Claim Package is sent via first-class mail, the date of deposit if sent by courier or overnight delivery, and the date of transmission if sent electronically.
PART IV. PROBLEM(S) WITH YOUR CLAIM PACKAGE (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)
We have identified the following problem(s) with your claim package (check all that apply):
You did not submit a Claim Form.
You did not sign your Claim Form.
You did not answer the following questions on the Claim Form: __________________________
You are a Track A Claimant seeking a payment in recognition of outstanding USDA/FSA Farm Loan Program debt, and you did not submit a completed Authorization to Disclose Debt Information Form.

Your Claim Package Is Not Complete Form – Page 2

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 100 of 110

_______________________________ ______________________ ____________________________________

Claimant’s Name (First, Middle, Last) Claimant ID #

Claimant’s Social Security/Taxpayer I.D. #

You have an attorney but your submission did not include a declaration by your attorney attesting to the attorney’s good faith belief in the truth of the factual basis for your claim.
You are submitting a claim on behalf of a Claimant who is deceased, and you did not submit a death certificate.
You are submitting a claim on behalf of a Claimant who is deceased, and you did not submit proof of legal representation or a sworn statement describing why you believe you will be appointed the legal representative of the Claimant’s estate.
You are submitting a claim on behalf of a Claimant who is unable to submit a claim on his or her own behalf due to a physical or mental limitation, and you did not submit (a) proof of legal representation or (b) a sworn statement describing why the Claimant is unable to submit a claim on his or her own behalf and why you assert a right to do so on the Claimant’s behalf.
Based on the information included in your Claim Package, we were unable to determine whether your claim was submitted before the Claims Deadline. Please submit additional evidence that shows:
____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________
Based on the information included in your Claim Package, we were unable to determine whether your Claim Package is complete. Please submit additional evidence that shows:
_____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________
PART V. DEADLINE TO RE-SUBMIT YOUR CLAIM PACKAGE
From the date on the postmark of this Form, you have 30 days to re-submit your claim package. Your resubmission must be postmarked no later than 30 days after the postmark on this Form. Your failure to submit a Complete Claims Package within 30 days will result in denial of your claim. You are encouraged to consult an attorney to assist you in re-submitting your claim.
QUESTIONS
If you have any questions, you may contact Class Counsel at [Phone].
Your Claim Package Is Not Complete Form – Page 3

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 101 of 110
EXHIBIT G

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 102 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

YOU HAVE NOT SUBMITTED YOUR CLAIM ON TIME

PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

YOUR CLAIM IS DENIED. (SEE PART II)
THIS DECISION IS FINAL. IT IS NOT REVIEWABLE BY THE CLAIMS ADMINISTRATOR, THE TRACK A NEUTRAL, THE TRACK B NEUTRAL, THE COURT, OR ANY OTHER PARTY OR
BODY, JUDICIAL OR OTHERWISE.

Your Have Not Submitted Your Claim On Time Form – Page 1

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 103 of 110

_______________________________ ______________________ ____________________________________

Claimant’s Name (First, Middle, Last) Claimant ID #

Claimant’s Social Security/Taxpayer I.D. #

PART II. EXPLANATION OF DENIED CLAIMS (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

Your claim is DENIED because you failed to submit your claim on time. Your claim was submitted on ___________________________. All claims had to be submitted by [Claims Deadline] to be eligible for relief. The date of submission is the date of postmark if the Claim Package is sent via first-class mail, the date of deposit if sent by courier or overnight delivery, and the date of transmission if sent electronically.

IMPACT ON OUTSTANDING LOAN OBLIGATIONS: Please note that if you are not current on loan payments you owe the USDA, the Secretary of Agriculture may, in view of the denial of your claim, proceed immediately with any loan acceleration or foreclosure proceedings he believes are appropriate.

QUESTIONS
If you have any questions, you may contact Class Counsel at [Phone]

Your Have Not Submitted Your Claim On Time Form – Page 2

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 104 of 110
EXHIBIT H

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 105 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

YOU ARE NOT A CLASS MEMBER

PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

YOUR CLAIM IS DENIED. (SEE PART II)
THIS DECISION IS FINAL. IT IS NOT REVIEWABLE BY THE CLAIMS ADMINISTRATOR, THE TRACK A NEUTRAL, THE TRACK B NEUTRAL, THE COURT, OR ANY OTHER PARTY OR
BODY, JUDICIAL OR OTHERWISE.

You Are Not A Class Member Form – Page 1

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 106 of 110

_______________________________ ______________________ ____________________________________

Claimant’s Name (First, Middle, Last) Claimant ID #

Claimant’s Social Security/Taxpayer I.D. #

PART II. EXPLANATION OF DENIED CLAIMS (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

Your claim is DENIED because (check all that apply):
You failed to prove that you submitted a Late-Filing Request pursuant to Section 5(g) of the Pigford Consent Decree before June 19, 2008.
You failed to prove that you have not already obtained a determination on the merits of your discrimination complaint.
IMPACT ON OUTSTANDING LOAN OBLIGATIONS: Please note that if you are not current on loan payments you owe the USDA, the Secretary of Agriculture may, in view of the denial of your claim, proceed immediately with any loan acceleration or foreclosure proceedings he believes are appropriate.

QUESTIONS

If you have any questions, you may contact Class Counsel at [Phone].

You Are Not A Class Member Form – Page 2

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 107 of 110
EXHIBIT I

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 108 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

QUARTERLY CLAIM DETERMINATION REPORTING FORM

Claimant’s Name (Last, First, Middle, Suffix)

Claimant’s Mailing Address (Street, City, Claimant’s Social

State, Zip)

Security/Taxpayer I.D. Number

Claimant’s USDA/FSA Did Claimant Prevail? Account Number(s), if (Yes/No) applicable

Signature of Claims Administrator: ______________________________

Date Prepared:

Page __ of __

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 109 of 110
EXHIBIT J

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 110 of 110
Claims Administrator, In re Black Farmers Discrimination Litigation
[Date] [Claimant’s Name] [Claimant’s ID Number] [Claimant’s Address] RE: In re Black Farmers Discrimination Litigation: Claim Status Dear [Mr./Mrs.] [Claimant’s Last Name]:
Some time ago, you submitted a Track [A/B] claim to participate in the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-0511 (D.D.C.). A neutral party has reviewed your claim materials and determined that your claim is APPROVED.
You are eligible to receive a payment for your successful claim. However, at this time we do not know the amount of the payment you will receive, and we will not know that information until all claims in this case have been determined and final award amounts for all claims have been calculated. No payments will be made under the Settlement Agreement until all claims have been decided.
Please be patient. We will be back in touch with you when the claims process has ended and we are ready to issue payments.
If you have any questions, please feel free to contact us at 1-877-810-8110.
Sincerely,
_______________________ Claims Administrator
Epiq Systems (Claims Administrator), PO Box 4028, Portland, OR 97208-4028 www.websiteurl.com

 </s> Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 1 of 16

UNITED STATES DISTRICT COURT

FILED

FOR THE DISTRICT OF COLUMBIA

MAY 13 2011

Clerk, u.s. District & Bankruptcy
Courts for the District of Columbia )

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

--------------------------------~)
)

Misc. No. 08-mc-0511 (PLF)

This document relates to:

)

)

ALL CASES

)

)

ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, CERTIFYING A RULE 23(b)(1)(B) SETTLEMENT CLASS, AND FOR OTHER PURPOSES The Court has reviewed and considered Plaintiffs' Motion for Preliminary Approval of Settlement Agreement, Certification of a Rule 23(b)(1 )(B) Settlement Class, and for Other Purposes ("Motion"), including the exhibits thereto, and has reviewed and considered the terms and conditions of the Settlement Agreement dated February 18, 2010, revised as of May 13, 2011 (the "Settlement Agreement"). Upon consideration of these submissions and the entire record herein, with good cause for this Order having been shown, it is hereby ORDERED that the terms of the Settlement Agreement are preliminarily approved, subject to further consideration thereof at the Final Approval Hearing provided for below. The Court finds that the proposed Settlement Agreement is within the range of reasonableness so that Notice of the proposed Settlement should be sent to the Class as provided in Paragraphs 16-18 of this Order.

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 2 of 16
CERTIFICATION OF THE SETTLEMENT CLASS 1. For purposes of settlement only, and pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(1)(B), the action styled as In re Black Farmers Discrimination Litig., Misc. No. 08-mc-0511 (PLF) (D.D.C.), is conditionally certified as a class action on behalf of the following persons (collectively, the "Class" and each member of the Class as a "Class Member"), effective upon Final Approval of the Settlement Agreement: All individuals: (1) who submitted late-filing requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18,2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section l(h) of the Consent Decree. Based on the Court's review of the Motion and supporting materials, the Court finds that the proposed Class satisfies Rules 23(a) and 23(b)(1)(B). 2. The Court finds that the following Representative Plaintiffs will fairly and adequately protect the interests of the Class and therefore conditionally appoints them as representatives of the Class, pursuant to Federal Rule of Civil Procedure 23(a)(4):
James Copeland 3 Effingham Court Columbus, GA 31909 Earl Moorer, on behalf of the Estate of John Moorer 292 Benton Rd. Lowndesboro, AL 36752 Marshallene McNeil 472 Hwy 41 North Camden, AL 36726
2

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 3 of 16
3. For purposes of effectuating the Settlement Agreement, the following individuals
are conditionally appointed Lead Class Counsel:
Andrew H. Marks, Esq. CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (T): 202-624-2500 (F): 202-628-5116
Henry Sanders, Esq. CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL, LLC One Union Street Selma, AL 36701 (T): 334-875-9264 (F): 334-875-9853
Gregorio A. Francis, Esq. MORGAN & MORGAN, P.A. 20 North Orange Avenue, Suite 1600 Orlando, FL 32801 (T): 407-420-1414
These Lead Class Counsel are responsible for carrying out the duties of Lead Class Counsel set
forth in the Settlement Agreement.
4. Pursuant to Federal Rule of Civil Procedure 23(g), for purposes of effectuating
the Settlement Agreement, the following individuals are conditionally appointed as Class
Counsel:
Henry Sanders, Esq.** Fayarose Sanders, Esq. ** CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL, LLC One Union Street Selma, AL 36701 (T): 334-875-9264 (F): 334-875-9853
** Indicates membership on Plaintiffs' Steering Committee
3

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 4 of 16
David Frantz, Esq. ** Brian P. Phelan, Esq. CONLON, FRANTZ & PHELAN, LLP 1818 N Street, N.W., Suite 400 Washington, DC 20036 (T): 202-331-7050 (F): 202-331-9306
Othello C. Cross, Esq.** Jesse L. Kearney, Esq. CROSS & KEARNEY, PLLC 1022 W. 6th Avenue Pine Bluff, AR 71601 (T): 870-536-4056 (F): 870-536-0216
Andrew H. Marks, Esq.** Laurel Pyke Malson, Esq. ** Michael W. Lieberman, Esq. CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004 (T): 202-624-2500 (F): 202-628-5116
Don O. Gleason, Jr., Esq. Michael McHenry, Esq. GLEASON & McHENRY P.O. Box 7316 Tupelo, MS 38802 (T): 662-690-9824 (F): 662-690-9826
Stephen Gowan, Esq. GOWAN LAWOFFICE, PLLC P.O. Box 38 McAdams, MS 39107 (T): 662-290-0042 (F): 662-290-0042
4

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 5 of 16
William Lewis Garrison, Esq. William L. Bross, Esq. Gayle L. Douglas, Esq. HENINGER, GARRISON & DA VIS LLC P.O. Box 11310 2224 - 1st Avenue North Birmingham, AL 35202 (T): 205-326-3336 (F): 205-326-3332
Kindaka Sanders, Esq. Attorney at Law 209 Broad Street Selma, AL 36701 (T): 334-327-1993 (F): 334-460-6611
Jimmy S. Calton, Jr., Esq. Jimmy S. Calton, Sr., Esq. LAWOFFICES OF CALTON & CALTON 226 East Broad Street Eufaula, AL 36027 (T): 334-687-3563 (F): 334-687-3564
James Scott Farrin, Esq.** Eric Haase, Esq. LAWOFFICES OF JAMES SCOTT FARRIN 280 South Mangum Street, Suite 400 Durham, NC 27701 (T): 919-688-4991 (F): 919-688-4468
Marc Boutwell, Esq. Charles Edwards, Esq. THE LAWOFFICES OF MARC BOUTWELL, PLLC P.O. Box 956 Lexington, MS 39095 (T): 662-834-9029 (F): 662-834-3117
5

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 6 of 16
Donald McEachin, Esq. McEACHIN & GEE LLP 4719 Nine Mile Road Henrico, VA 23223 (T): 804-226-4111 (F): 804-226-8888
Gregorio A. Francis, Esq. ** Scott W. Weinstein, Esq.** Alphonso Michael Espy, Esq.
1. Andrew Meyer, Esq.
MORGAN & MORGAN, P.A. 20 North Orange Avenue, Suite 1600 Orlando, FL 32801 (T): 407-420-1414
Anurag Vanna, Esq. Benjamin G. Chew, Esq. Jude Kearney, Esq. Ramona Quillet, Esq. PATTON BOGGS, LLP 2550 M Street, N.W. Washington, DC 20037 (T): 202-457-6490 (F): 202-457-6315
Harris L. Pogust, Esq.** Tobias L. Millrood, Esq. POGUST, BRASLOW & MILLROOD 161 Washington Street, Suite 1520 Conshohocken, PA 19428 (T): 610-941-4204 (F): 610-941-4245
Reed Colfax, Esq. John P. ReIman, Esq. Jennifer Klar, Esq. RELMAN & DANE, PLLC 1225 -19th StreetN.W., Suite 600 Washington, DC 20036-2456 (T): 202-728-1888 (F): 202-728-0848
6

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 7 of 16
Michael A. Rutland, Esq. RUTLAND & JANKIEWICZ, LLC 128 N. Orange Ave. Eufaula, AL 36027 (T): 334-687-9899
Phillip L. Fraas, Esq. **
STINSON MORRISON HECKER LLP 1150 - 18th Street N.W. #800 Washington, DC 20036 (T): 202-572-9904 (F): 202-572-9982
Joseph P. Strom, Jr., Esq. **
Mario A. Pacella, Esq. Bakari Sellers, Esq. STROM LAWFIRM, LLC 2110 N. Beltline Blvd., Suite A Columbia, SC 29204 (T): 803-252-4800 (F): 803-252-4801
Walter B. Calton, Esq. Attorney at Law 312 East Broad Street Eufaula, AL 36027 (T): 334-687-2407 (F): 334-687-2466
These Class Counsel are responsible for carrying out the duties of Class Counsel as set forth in
the Settlement Agreement.
5. The certification of the Class, appointment of Representative Plaintiffs as
representatives of the Class, and appointment of Class Counsel, Lead Class Counsel, and the
Plaintiffs' Steering Committee are solely for the purposes of effectuating the Settlement
Agreement. If the Settlement Agreement is terminated or is not consummated for any reason,
the foregoing certification of the Class, appointment of the Representative Plaintiffs as
representatives of the Class, and appointment and designation of Class Counsel, Lead Class
Counsel, and the Plaintiffs' Steering Committee, shall be void and of no effect and both
7

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 8 of 16
Plaintiffs and the Secretary of the United States Department of Agriculture (the "Defendant") (collectively "the Parties") shall be returned to the status each occupied before entry of this Order without prejudice to any legal argument that any of the Parties to the Settlement Agreement might have asserted but for the Settlement Agreement.
INJUNCTION AGAINST FILING OF NEW AND AMENDED ACTIONS 6. All members of the prospective Class, and any other person, representative, or entity, are hereby barred and enjoined from: (i) filing, commencing, or intervening in any claim, lawsuit, arbitration, administrative, regulatory or other proceeding arising out of Section 14012 of the Food, Conservation, and Energy Act of2008, Pub. L. No. 110-234 and/or 110-246, ("Section 14012"), and (ii) organizing or soliciting the participation of any members of the Settlement Class into a separate class for the purposes of pursuing a purported class action arising out of Section 14012 (including by seeking to amend a pending complaint to include class allegations, or by seeking class certification in a pending action). The Court finds that the issuance of this injunction is necessary and appropriate in aid of the Court's jurisdiction over the action and to protect and effectuate the Court's review of the Settlement. 7. All proceedings in the above-captioned Consolidated Action, other than that such as may be necessary to carry out the terms and conditions of the Settlement Agreement or the responsibilities thereto, are stayed and suspended until further Order of this Court.
APPROVAL OF THE COST CAP FOR IMPLEMENTATION COSTS 8. The "Cost Cap," as defined in Section 11.1 of the Settlement Agreement, is set at $35,000,000. 9. Class Counsel may move for the payment of up to an additional $3,500,000 from 2008 Funds to pay for reasonable additional fees and costs above the Cost Cap incurred by the
8

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 9 of 16
Track A Neutrals, the Track B Neutrals, and/or the Claims Administrator arising out of the reporting requirements and/or the audit provisions of Section 201(h) of Pub. L. 111-291. 124 Stat. 3064 (Dec. 8,2010).
APPROVAL OF CLAIMS ADMINISTRATOR AND NEUTRALS 10. Epiq Systems, Inc. is approved to serve as Claims Administrator for purposes of effectuating the Settlement Agreement and shall fulfill the roles designated for the Claims Administrator in the Settlement Agreement. 11. Upon further motion of the Parties, and prior to or concurrent with Final Approval of the Settlement Agreement, the Court will approve a Track A Neutral to fulfill the role designated for the Track A Neutral in the Settlement Agreement. 12. Upon further motion of the Parties, and prior to or concurrent with Final Approval of the Settlement Agreement, the Court will approve a Track B Neutral to fulfill the role designated for the Track B Neutral in the Settlement Agreement. 13. Each individual designated to serve as a Track A Neutral or Track B Neutral must notify Lead Class Counsel of their designation. Within ten (10) days of such notification, Lead Class Counsel shall inform the Court of the names of any individuals so designated so that the Court may administer an oath to each individual that he or she will fulfill his or her respective role faithfully, fairly, and to the best of his or her ability. No individual designated as a Track A or Track B Neutral may take any action in that role before taking the aforementioned oath administered by the Court. 14. The Claims Administrator, Track A Neutral, and Track B Neutral shall have no liability to any claimants, including both Class Members and other individuals seeking to participate in the claims program provided for in the Settlement Agreement and approved by this
9

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 10 of 16
Court. Accordingly, these entities, as well as their officers, employers, employees, independent contractors, vendors, subcontractors, shareholders, and agents, shall not be subject to any suits, claims, actions, or liabilities that may be asserted by any such claimants.
15. Payments to the Claims Administrator, the Track A Neutral, and the Track B Neutral are Implementation Costs that shall be paid in accordance with Sections IV.C, IV.D, IV.E, IV.F, and IV.H of the Settlement Agreement upon application of Class Counsel and approval by this Court. Such payments shall not, in total, exceed the Cost Cap.
FORM AND TIMING OF NOTICE 16. The Court finds the proposed Notice Program (Ex. 5, Att. 3 to Motion) to be appropriate for the Class, practicable under the circumstances, and designed to fairly ensure the protection of the interests of absent parties who are to be bound by it. When completed, it shall constitute due and sufficient notice of the Settlement Agreement and the Final Approval Hearing to all persons affected by and/or eligible to participate in the remedial processes set forth in the Settlement Agreement or the Final Approval Hearing, and therefore will satisfy the requirements of due process and the Federal Rules of Civil Procedure. 17. Pursuant to Federal Rule of Civil Procedure 23(e)(l), no later than thirty (30) days after entry of this Order, the Plaintiffs shall cause copies of the forms of Notice proposed in the Notice Program to be disseminated in the manner delineated in the Notice Program. 18. The costs of implementing the Notice Program shall be paid out of the "interim Implementation Costs" authorized in Sections IV.C and IV.D of the Settlement Agreement. 19. No later than twenty (20) days prior to the Final Approval Hearing, the Notice Provider shall file with the Court a declaration confirming compliance with the Notice procedures approved by this Court.
10

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 11 of 16
CONTINGENT ATTORNEYS' FEES 20. For purposes of effectuating the Settlement Agreement, a "Track A Individual Counsel Fee" (as defined in the Settlement Agreement) may not exceed 2% of a Class Member's Final Track A Award. 21. For purposes of effectuating the Settlement Agreement, a "Track B Fee" (as defined in the Settlement Agreement) may not exceed 8% of a Class Member's Final Track B Award.
PRELIMINARY APPROVAL OF THE FEE AWARD 22. The Court finds that a Fee Award (as defined in the Settlement Agreement) of between 4.1 % and 7.4% of the Fee Base (as defined in the Settlement Agreement) appears to be a fair, reasonable, and adequate range for a Fee Award in this action, and this range therefore is preliminarily approved for purposes of providing Notice to the Class.
EXISTING RETAINER AGREEMENTS 23. No counsel who is designated as Class Counsel by this Order shall seek to enforce the terms of any existing contingency fee arrangements with Class Members. 24. Any counsel who is not designated as Class Counsel and who is retained by a member of the Class to represent such an individual for a Track A claim under the Settlement Agreement shall be limited to a 2% contingency fee. 25. Any counsel who is retained by a member of the Class to represent such an individual for a Track B claim under the Settlement Agreement shall be limited to an 8% contingency fee.
11

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 12 of 16
FINAL APPROVAL HEARING: RIGHT TO APPEAR AND OBJECT 26. A Final Approval Hearing shall take place before the Court on September 1, 2011, at 9:30 a.m. before the Honorable Paul L. Friedman, at the United States District Court for the District of Columbia, 333 Constitution Avenue, N.W., Washington, D.C. 20001 to determine whether the Settlement Agreement should be finally approved by this Court as fair, reasonable, and adequate. 27. The Court may finally approve the Settlement Agreement at or after the Final Approval Hearing with any appropriate modifications agreed to by the Parties and without further notice to the Class Members. 28. Any Class Member wishing to raise objections to the Settlement Agreement that the Court may consider before Final Approval of the Settlement Agreement must adhere to the following process for submitting such objections:
a. Any member of the Class may present written objections explaining why the Settlement Agreement should not be approved as fair, reasonable, and adequate, or why attorneys' fees and expenses to Class Counsel should not be awarded in the amounts requested. Any Class Member who wishes to object to any aspect of the Settlement Agreement must, no later than July 18,2011, file a written statement of the objection(s) with the Court and serve such objection(s) on Lead Class Counsel and Defendant's Counsel either by (a) ECF filing with the Court or (b) first-class mail plus fax and/or electronic mail. The written statement of the objection(s) must include (1) a statement explaining the basis for the objector's belief that he or she is a Class Member and eligible for relief under the Settlement
12

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 13 of 16
Agreement; (2) a detailed statement of the Class Member's objection(s), as well as the specific reasons, if any, for each objection, including any evidence and legal authority the Class Member wishes to bring to the Court's attention and any evidence the Class Member wishes to introduce in support of his or her objection(s); (3) the Class Member's name, address, and telephone number; and (4) any other supporting papers, materials, or briefs the Class Member wishes the Court to consider when reviewing the objection. b. Class Members may raise an objection either on their own or through an attorney hired at their own expense. If a Class Member hires an attorney to represent him or her for purposes of filing an objection, the attorney must: (1) file a notice of appearance with the Clerk of Court no later than August 2, 2011; and (2) serve a copy of the notice on Lead Class Counsel and Defendant's Counsel by (a) ECF filing with the Court or (b) first-class mail plus either fax and/or electronic mail by August 2, 2011 c. Class Members, or their attorneys, who wish to appear at the Fairness Hearing must file with the Court and serve on Lead Class Counsel and Defendant's Counsel, by (1) ECF filing with the Court or (2) first-class mail plus either fax and/or electronic mail, by August 2,2011 a notice of their intention to appear at the Fairness Hearing. d. Any Class Member who fails to comply with the provisions of the preceding subsections shall waive and forfeit any and all rights he or she may have to object to the Settlement Agreement, and shall be bound by all
13

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 14 of 16

the terms of this Settlement Agreement and by all proceedings, orders, and

judgments in the litigation.

29. The Court may adjourn the Final Approval Hearing, or any subsequent hearings,

including the consideration of the application for attorneys' fees, costs, and expenses, without

any additional notice to putative Class Members other than an announcement in open court.

ORDER REGARDING LISTS AND MATERIAL RECEIVED FROM THE PIGFORD FACILITATOR

30. For the purpose of allowing Lead Class Counsel to fulfill its duties under Sections

VIII.A.3 and VIII.A.4 of the Settlement Agreement, the Pigford Facilitator is hereby directed to

provide to Lead Class Counsel a current version of the Pigford Timely 5(g) List, the Pigford

Participants List, and the Pigford Opt-Out List (collectively, the "Pigford Lists"), and copies of

all late-filing requests and all other available information and correspondence regarding the late-

filing status of Class Members, including any lists prepared by the Pigford Facilitator reflecting

such status (collectively, "5(g) Communications").

31.

The Pigford Lists and 5(g) Communications may be used by Class Counselor

other counsel only for the purposes set forth in the Settlement Agreement. Accordingly,

a.

Counsel other than Class Counsel may not use the Pigford Lists and/or

5(g) Communications to communicate with individuals unless such

individuals were represented by the contacting counsel prior to disclosure

of the list;

b. Class Counselor other counsel may use the Pigford Lists and/or 5(g)

Communications to determine whether a particular individual is eligible to

pursue a claim in the non-judicial claims process delineated in Section V

of the Settlement Agreement;

14

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 15 of 16

c. Upon request, Lead Class Counsel shall provide verification to a claimant

under the Settlement Agreement and, if applicable, his or her counsel, that

the claimant's name appears on the Pigford Lists;

d. Upon request, Lead Class Counsel shall transmit to each claimant and his

or her counsel within thirty (30) days of such request all 5(g)

Communications regarding that claimant, provided that the claimant or his

or her counsel has provided written certification in writing that he or she

will comply with the terms of this Order and other protective orders

entered by this Court;

e. No information in the Pigford Lists and/or 5(g) Communications will be

disclosed by Class Counselor other counsel to any other person or entity,

including any farmers' advocacy organizations, for recruitment,

recruitment-related, or any other purposes;

f.

Lead Class Counsel shall transmit an electronic copy of the Pigford Lists

to all Class Counsel within ten (10) days of receipt of such lists from the

Pigford Facilitator;

g. Each copy of the Pigford Lists provided to Class Counsel shall be stamped

"PRODUCED SUBJECT TO PROTECTIVE ORDER;"

32. Nothing in this Order shall restrict in any way the ability of Class Counsel in

Pigford v. Glickman to fulfill their duties as Class Counsel in that action; and

33. Nothing in this Order shall restrict in any way the Defendant's use of the Pigford

Lists or 5(g) Communications.

15

Case 1:08-mc-00511-PLF Document 172 Filed 05/13/11 Page 16 of 16
34. This Court's Order on December 23,2008, entitled "Protective Order Regarding '5(g) List'" (Docket No. 34) is hereby withdrawn.
OTHER PROVISIONS 35. The Parties are authorized to communicate with putative Class Members regarding the provisions of the Settlement Agreement so long as such communications are not inconsistent with the Settlement Agreement. The Secretary shall refer to the toll-free telephone number operated by the Claims Administrator any inquiries from putative Class Members about claims to be filed under the Settlement Agreement. 36. Neither the fact of settlement, nor the Settlement Agreement, nor any provision therein, nor any negotiations, statements, or proceedings in connection therewith, shall be construed as, or be deemed to be evidence of, an admission or concession on the part of any of the Representative Plaintiffs, Class Counsel, any putative Class Members, the Secretary, or the United States of any liability or wrongdoing by them, or that the claims and defenses that have been, or could have been, asserted in In re Black Farmers Discrimination Litigation were or were not meritorious. 37. Class Counsel shall promptly bring to the attention of the USDA Inspector General and the Department of Justice information that they receive relating to potential scams on claimants and/or misrepresentations being made to claimants relating to the claims process or the relief available to claimants under the Settlement Agreement. SO ORDERED.
• PAUL L. FRIEDMAN United States District Judge
DATE: fVI"''1 13,2011
16

 </s> UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FILED
AUG 26 2011

Clerk. U.S. District & Bankruptcy

)

Courts for the District of Columbia

In re BLACK FARMERS DISCRIMINAnON )

LITIGATION

)

)

Misc. No. 08-0511 (PLF)

)

This document relates to:

)

)

ALL CASES

)

)

MEMORANDUM OPINION AND ORDER REGARDING FAIRNESS HEARING On May 13, 2011, the Court entered an Order conditionally certifYing a plaintiffs'
class in this matter and granting preliminary approval of a settlement agreement proposed by the defendant, the United States Department of Agriculture, and a large group of plaintiffs. Before granting final approval of a settlement agreement that would resolve the claims of the members of a certified class, the Court must determine that the terms of the settlement are fair. See FED. R. CIY. P. 23(e); Pigford v. Glickman, 185 F.R.D. 82,98-99 (D.D.C. 1999). Members of the class have been notified of the conditional class certification in this matter and of the material terms of the proposed settlement agreement. They were also informed that objections to the proposed settlement by any class member would be considered by the Court if filed by August 12,2011. Class members were invited to present any objections they might have at a fairness hearing to be held on September 1,2011 at 9:30 a.m. in Courtroom 20, the Ceremonial Courtroom on the sixth floor of the E. Barrett Prettyman United States Courthouse.

A. Objections and Other Correspondence The Court, as well as counsel for the plaintiffs' class and for the defendant, received a large volume of correspondence in response to the circulation of notices announcing

the proposed settlement. A number of individuals who sent letters concerning the case asked to be added to the list of plaintiffs, requested legal advice, or explained why they believed they are entitled to relief under the proposed settlement agreement. These individuals should be aware that the Court cannot grant any of the requests made in those letters. Under the proposed settlement agreement, neutral third parties - not this Court - will determine who is a member of the plaintiffs' class and who is eligible to receive an award. No one can "sign up" for this lawsuit or submit a Track A or Track B claim by writing a letter to the Court, and neither the Court nor its staff may give any legal advice about how to participate in this action. Any questions about the proposed settlement agreement or requests to participate in the claims resolution process should be addressed to class counselor to another attorney - not to the Court.
The Court has also received hundreds of copies of a document entitled "Pro Se Petition/Objection to Pigford 2." Although each copy of this document is signed by a different individual or set of individuals, it appears that the content of the document was prepared by one person, Ms. Thedford A. Rowser-Bey, an individual who styles herself a "legal researcher" and who has repeatedly attempted to inject herself into this case and its predecessors, Pigford v. Glickman, Civil Action No. 97-1978, and Brewington v. Glickman, Civil Action No. 98-1693. The Court has been informed that a large number ofpeop1e have paid Ms. Rowser-Bey a fee in exchange for her submission of a copy of her "Pro Se Petition/Objection" on their behalf. The Court is concerned that any money paid to Ms. Rowser-Bey by potential class members in this case may have been wasted because the "Pro Se Petition/Objection" drafted by Ms. Rowser-Bey achieves nothing at all for those individuals. It does not present a coherent objection to the proposed settlement agreement, nor does it serve as a means of "signing up" for this case.
2

While potential class members are entitled to seek assistance where they please, the Court advises them that Ms. Rowser-Bey is not a lawyer, and she has previously caused widespread confusion among Pigford litigants by "misstat[ing] the legal importance of various Orders and Opinions issued by this Court, and misinterpret[ing] the meaning of words and sentences in those Orders and Opinions." Pigford v. Johanns, 505 F. Supp. 2d 174, 175 (D.D.C. 2007). Based on her submissions in this case and in Pigford v. Glickman, it does not appear that she understands the law or the facts involved in either matter. Her interference with the proceedings in Pigford v. Glickman was so severe and persistent that the Court was forced to bar her from filing documents in the case. See id. It is highly unlikely that she can be of any help to potential claimants in this matter.
B. Procedure for September 1 Fairness Hearing In addition to the correspondence discussed above, the Court has received timely written objections to the proposed settlement from the following individuals or groups: Justin and Willa Fouts; Booker T. Woodard; Diahann C. Stevens; Thomas Burrell, President of the Black Farmers and Agriculturalists Association; Larry Morgan, M.C. Moore, Willie Parker, Sr., Vernon Ross, Sr., Blanche Ross, Lewis Walker, Thomas Walker, Inez Washington, Steven Bailey, and O.C. Anthony (all represented by attorney Precious Martin); Errol Von Hart; Eddie Lee Gray; Muhommad Rabbalaa and Henry Burris; Karla K. Adams and Terrie L., Theodore B., Brad E., Kerry F., and Ava L. Bates; Lillie M. Wingard; Robert E. Walker; and M. Murline Price. The Court also will consider the late-filed objections of Ralph Paige, Executive Director of the Federation of Southern Cooperatives Land Assistance Fund, and Dr. Dewayne L. Goldmon, Chairman of the National Black Agricultural Alliance. Finally, the following
3

individuals have submitted timely requests to speak at the fairness hearing, although those

requests were unaccompanied by any written objections: Bernice Atchison; Joyce A. Smith;

Doris Gray; William Paramore; and Gloria Davis Gilmore.] In light of the foregoing, it is hereby

ORDERED that at the start of the fairness hearing, Class Counsel and government

counsel will each make short presentations explaining why their client or clients are moving for

final approval of the settlement, after which Class Counsel will explain how the proposed

settlement will be implemented if approved; and it is

FURTHER ORDERED that for each person or group listed as having filed a

written objection or a request to speak, a representative will be allotted time to present oral

objections at the fairness hearing. Precious Martin, on behalf of his clients, and representatives

of the Black Farmers and Agriculturalists Association, the Federation of Southern Cooperatives

Land Assistance Fund, and the National Black Agricultural Alliance will each be permitted to

speak for up to fifteen minutes. All other objectors will be allotted five minutes to speak.

SO ORDERED.
I" DATE: tS' I~ f.a

~.JL ~cX;.IL..
PAUL L. FRIEDMAN
United States District Judge

The Court has also received requests to speak from Gregory K. Chestnut and John Boyd, President of the National Black Farmers Association. The Court has not yet decided whether to grant those requests.
4

 </s> Case 1:08-mc-00511-PLF Document 298 Filed 07/11/12 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

Misc. No. 08-05 I I (PLF)

MEMORANDUM OPINION AND ORDER Before the Court is a motion to intervene by Gregory K. Chestnut, Administrator of the Estate of J. L. Chestnut, Jr. ("the Estate"). See Dkt. No. 181 ("MoL"). This motion arises from a financial dispute between the estate of J. L. Chestnut - who participated as counsel in cases that were consolidated into this miscellaneous action before he passed away in 2008 - and two of his former law partners who are among the attorneys presently serving as class counsel, Heury Sanders and Fayarose Sanders. The Estate contends that it is entitled to intervene because it has an interest in the attorneys' fees that ultimately will be awarded to class counsel in this action, "in particular those fees to be allocated to Henry Sanders and Fayarose Sanders of Chestnut Sanders, Sanders, Pettaway & Campbell[.]" Mot. at 1. In other words, the Estate believes it is entitled to a portion of any attorneys' fees obtained by Mr. Sanders and Ms. Sanders in this case, and it asserts this interest "for the purpose of protecting the lawful right of J. L. Chestnut, Jr. to attorneys' fees earned and due from his prosecution of this action." Id. at 2. Intervention as a matter of right is available to a party who "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." FED. R. Cry. P. 24(a)(2) (emphasis added). It is doubtful that the attorneys' fees apportioned among class counsel in this

Case 1:08-mc-00511-PLF Document 298 Filed 07/11/12 Page 2 of 3
action qualify as "the property or transaction that is the subject of the action" under Rule 24. Cf 8utler. Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 177 (2d Cir. 2001) ("[T]he interest of discharged counsel in their attorney's fees is unrelated to the underlying cause of action. Hence, that interest does not present a pmticularly persuasive argument for intervention."). Even if the Estate's interest in class counsel's fees were the type of interest recognized by Rule 24(a)(2), the Estate has not demonstrated that it is "so situated that disposing of the action may as a practical matter impair or impede [its] ability to protect its interest." The Estate already has filed an action in Alabama state court for dissolution, an accounting of wOlih, and equitable division of the assets of the Chestnut Sanders law firm. Mot. at 2 n.2; see Dkt. No. 199-1 (state court complaint). That action is the proper forum in which to resolve disputes about the division of assets among the former partners of Chestnut Sanders, including assets generated as attorneys' fees in this case. The Estate has failed to show that an award of such fees pursuant to the settlement agreement reached by the parties will impair any claim it has to Chestnut Sanders' portion of the fees. As noted by class counsel in opposing the motion to intervene, "the Estate is well-positioned to seek an order from the Alabama court where its Petition is pending directing the Chestnut Sanders firm to escrow any attorneys' fees paid to it from the instant case, pending resolution of the substantive claims presented in the Alabama case." Dkt. No. 189 at 3 ("Opp.").
Nor is permissive intervention appropriate under Rule 24(b). That provision requires that the movant have "a claim or defense that shares with the main action a common question oflaw or fact." FED. R. CIY. P. 24(b)(I)(8). The Estate has not sought permissive intervention, presumably in recognition that it cannot satisfy this criterion. See Opp. at 4 ("Indeed, the division of assets among partners in a single law firm is a far cry from the Class
2

Case 1:08-mc-00511-PLF Document 298 Filed 07/11/12 Page 3 of 3

claims seeking a determination on the merits of their discrimination claims against USDA that

form the crux of the instant case.").

As an alternative to granting the motion to intervene, the Estate requests that the

Court "enter an order limiting the disbursement of the attorneys fees to Henry Sanders, Fayarose

Sanders, and Chestnut, Sanders, Sanders, Pettaway & Campbell, LLC, so that the Estate of J. L.

Chestnut, Jr. can protect its interest in the pending state court action in Alabama." Mot. at 2.

The Estate has offered no reason to believe that the Alabama proceedings will not protect any

interest it may have in the attorneys' fees awarded by this Court. Without any compelling reason

to do so, the Court will not disturb the terms of the settlement agreement and in the process make

this action a platform for intra-law-firm financial disputes that are properly resolved elsewhere.'

Accordingly, it is hereby

ORDERED that the Motion to Intervene by Gregory K. Chestnut, Administrator

of the Estate ofJ. L. Chestnut, Jr. [Dkt. No. 181] is DENIED.

SO ORDERED.
DATE: ::t- \ " \ \~

Q~ ;;;(~'d-___
PAUL L. FRIEDMAN
United States District Judge

Granting the Estate's motion and entertaining its claim would oblige the Court to resolve questions under Alabama state law about the proper distribution of assets among the former partners of the Chestnut Sanders law firm. Those are precisely the questions before the Alabama state court in the dissolution proceeding initiated by the Estate, and this Court's parallel adjudication ofthe same questions would raise concerns stemming from the federal court abstention doctrine. See Opp. at 4-5 (citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976». Because the Estate has not demonstrated its right to intervene under Rule 24, the Court need not determine whether it has the authority to resolve these questions or whether doing so would run afoul of the abstention doctrine.

3

•

 </s> Case 1:08-mc-00511-PLF Document 299 Filed 07/26/12 Page 1 of 2

~niteo ~tates ([ourt of J\ppeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 11-5326
Charlie Edward Latham, Appellant
All Plaintiffs, et aI., Appellees
v.
Tom Vilsack, Secretary, Appellee

September Term 2011
1 :08-mc-00511-PLF 1:1O-cv-00737-PLF
Filed On: July 25,2012

Consolidated with 11-5334, 12-5019
BEFORE: Rogers, Tatel, and Garland, Circuit Judges
ORDER
Upon consideration of the motion to dismiss consolidated appeals or, in the alternative, for summary affirmance, the government's response in support of the motion to dismiss, the oppositions and corrected oppositions thereto, and the replies and supplement; and the motion and amended motions to exceed the page limits, it is
ORDERED that the amended motion to exceed the page limits be granted. The Clerk is directed to file the lodged response. Appellant Black Farmers and Agriculturalists Association, Inc. is cautioned that the court disfavors motions to exceed the limits. See D.C. Cir. Rule 27(h)(3) (motions to exceed page limits are granted "only for extraorcJlf1~rily compelling reasons"). It is

Case 1:08-mc-00511-PLF Document 299 Filed 07/26/12 Page 2 of 2

2flniteo ~tate5 QIourt of J\pp£cxlz
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 11-5326

September Term 2011

FURTHER ORDERED that the motion to dismiss be granted. Because appellant Latham received a determination of his claim under the Pigford v. Glickman consent decree, he is not a member of the settlement agreement approved by the district court in 10cv737 on October 27,2011. See Food, Conservation, and Energy Act of 2008, Pub. L. 110-234, § 14012, 122 Stat. 923,1448 ("2008 Farm Bill") ("[a]ny Pigford claimant who has not previously obtained a determination on the merits of a Pigford claim may, in a civil action brought in the United States District Court for the District of Columbia, obtain that determination"). Alternatively, because appellant Latham failed to lodge any objection to the settlement before, during, or after the district court's fairness hearing, he waived any right he might have had to appeal the district court's approval or t~c; settlement. See Devlin v. Scardelletti, 536 U.S. 1, 11 (2001) (unnamed class member can be deemed a party to the district court proceedings, and therefore have the "power" to appeal,onTyif the class-memb-e-r first lodgesa timely objection to the settlement at the fairness hearing).
The JpiJc;al of the Black Farmers and Agriculturalists Association, Inc. is also dismissed because, despite having filed objections to the proposed settlement agreement and having appeared at the fairness hearing, appellant is not an "individual," and therefore cannot be a member of the settlement class. See Devlin, 536 U.S. at 1011 (lithe power to appeal is limited to ... class members who have objected during the fairness hearing"), 2008 Farm Bill, § 14012(a)(4) (settlement class cefinition is limited to individuals).
Pur:::uclnt to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely pc;lition for rehearing or petition for rehearing en banc See Fed. R. App. P. 41(b); 0 C. Cr. Rule 41.
Per Curiam

Page 2

 </s> Case 1:08-mc-00511-PLF Document 304 Filed 09/14/12 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FILED
SEP 14 2012

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

This document relates to:

)

)

ALL CASES

)

)

Clerk, U.S. District and Bankruptcy Courts
Misc. No. 08-mc-OSll (PLF)

Upon consideration of the Unopposed Motion To Amend Final Order and Judgment, and
the entire record herein, it is hereby
ORDERED that the Order and Judgment (Docket No. 231) entered by this Court on
October 27,2011 be and hereby is amended by adding the following:
27. Notwithstanding the May 11,2012 Claim Deadline established by the Court in Docket No. 233 of the Consolidated Case, a Claimant who (i) requested a Claim Form from the Claims Administrator prior to the Claim Deadline (May 11,2012), (ii) the Claim Administrator determines has made a prima facie showing of class membership, and (iii) was not sent a Claim Form before May 1,2012 shall be entitled to submit a claim, and to have that claim deemed timely, if the Claimant submits a Complete Claim Package to the Claims Administrator within thirty (30) days after the Claims Administrator sends the Claimant a Claim Form.
28. Notwithstanding the May 11,2012 Claim Deadline established by the Court in Docket No. 233 of the Consolidated Case, a Claimant who either (i) wrote to the Court and/or the Pigford Monitor between October 13, 1999 and June 18,2008 or (ii) submitted a claim form in Pigford between October 13,1999 and June 18, 2008 to the Pigford Facilitator shall be entitled to submit a claim, and to have that claim deemed timely, if the Claimant submits a Complete Claim Package to the Claims Administrator within thirty (30) days after the Claims Administrator has made a prima facie determination of class membership and sent the Claimant a Claim Form.
29. Notwithstanding Section V.B.2 of the Settlement Agreement, if the Claims Administrator determines that Sections 7(A)-(G) and 9(A)-(C) of the Claim Form are complete, the Claim Form shall be deemed complete for purposes of submittal

Case 1:08-mc-00511-PLF Document 304 Filed 09/14/12 Page 2 of 2

of the Claimant's Claim Package to the Track A or Track Neutral. Any C ass Member who has submitted such a Claim Form must co lete all remaining portions of the Claim Form by no later than ~~f'I'Tioler:7J7.', 2012 to be eligible to receive an award under the Settlement Agreement.

In all other respects the Order and Judgment as previously entered by the Court shall remain in

full force and effect.

SO ORDERED.
I DATE: 't .'i J , .....

o~ ~d::.~"~
PAUL L. FRIEDMAN United States District Judge

2

 </s> In re Black Farmers Discrimination Litigation, 842 F.Supp.2d 190 (2012)

842 F.Supp.2d 190 United States District Court,
District of Columbia.
In re BLACK FARMERS DISCRIMINATION LITIGATION.
Misc. No. 08–0511 (PLF). | Feb. 6, 2012.
Synopsis Background: African-American farmers brought discrimination actions against United States Department of Agriculture, alleging discrimination on basis of race. Following settlement, parties agreed to permit court to appoint independent ombudsman.
Holdings: The District Court, Paul L. Friedman, J., held that:
[1] appointment of Stephen Carpenter as independent ombudsman was warranted, and
[2] appointment of Alva Waller as deputy ombudsman was warranted.
Ordered accordingly.
Attorneys and Law Firms
*191 Alphonso Michael Espy, Mike Espy, P.L.L.C., Jackson, MS, Andrew H. Marks, David E. Bell, Laurel Pyke Malson, Michael Wyld Lieberman, Crowell & Moring L.L.P., Anurag Varma, Benjamin G. Chew, Patton Boggs L.L.P., Brian P. Phelan, Conlon, Frantz & Phelan L.L.P., Gary Edward Mason, Mason L.L.P., Phillip L. Fraas, Stinson Morrison Hecker, L.L.P., Jennifer I. Klar, John Peter Relman, Reed Colfax, Relman, Dane & Colfax, P.L.L.C., Washington, DC, David C. Silver, Blum & Silver, L.L.P., Coral Springs, FL, Gregorio Francis, Morgan & Morgan, P.A., Orlando, FL, Harris L. Pogust, Pogust & Braslow, L.L.C., Conshohocken, PA, Henry Sanders, Rose M. Sanders, Chestnut Sanders Sanders & Pettaway, Kindaka J. Sanders, Sanders Law, Selma, AL, J. Andrew Meyer, Morgan & Morgan, P.A., Fort Myers, FL, Joseph P. Strom, Strom Law Firm, L.L.C., Columbia, SC, April England–Albright, Atlanta, GA, for Plaintiffs.

Lillie M. Wingard, Kosciusko, MS, pro se.
Robert E. Walker, Tuscaloosa, AL, pro se.
Opinion
ORDER OF REFERENCE: APPOINTMENT OF OMBUDSMAN
PAUL L. FRIEDMAN, District Judge.
On October 27, 2011, the Court entered an Order and Judgment and issued an Opinion approving a Settlement Agreement that settled this lawsuit brought against the United States Department of Agriculture (“USDA”) for race discrimination. See In re Black Farmers Discr. Litig., 820 F.Supp.2d 78 (D.D.C.2011) (Order and Judgment); In re Black Farmers Discr. Litig., –––F.Supp.2d ––––, 2011 WL 5117058 (D.D.C. Oct. 27, 2011, as amended Nov. 10, 2011) (Opinion). As part of the Settlement Agreement, the parties agreed that the Court may appoint an independent Ombudsman. See Settlement Agreement, In re Black Farmers Discr. Litig., Misc. No. 08–0511 (Feb. 18, 2010, revised and executed as of May 13, 2011) (“Settlement Agreement”) [Dkt. No. 170–2], § VI.
The Ombudsman, if appointed, is to report directly to this Court. The Ombudsman is not to be removed except for good cause and shall serve for as long as the Court has continuing jurisdiction to enforce *192 the Settlement Agreement. Settlement Agreement § VI.A.
The Settlement Agreement and the Court’s Order and Judgment provide a limited, clearly defined role for the Ombudsman. According to the Settlement Agreement, the Ombudsman shall: (1) be available to Class Members and the public through a toll-free telephone number in order to address concerns about the implementation of the Settlement Agreement; (2) attempt to address any concerns or questions that any Class Member may have with respect to the implementation of the Settlement Agreement; (3) make periodic written reports (not less than every six months) to the Court, the Secretary of Agriculture, and Class Counsel on the good faith implementation of the Settlement Agreement; (4) have access to the records maintained by the Claims Administrator and the Neutrals involved in the claim process; and (5) make recommendations to the Court relating to the implementation of the Settlement Agreement. Settlement Agreement § VLB. The
1

In re Black Farmers Discrimination Litigation, 842 F.Supp.2d 190 (2012)

Ombudsman shall not have the power to alter in any way substantive claims decisions made by the Neutrals or the Claims Administrator, nor shall the Ombudsman have the power to direct the Secretary of Agriculture and/or the United States to take any actions pursuant to the Settlement Agreement. Id. § VI.C.
According to the Order and Judgment issued by this Court on October 27, 2011, Class Counsel and the Neutrals shall promptly bring to the attention of, among others, the Ombudsman information that they receive relating to potential scams on claimants and/or misrepresentations being made to claimants relating to the claims process or the relief available to claimants under the Settlement Agreement. In re Black Farmers Discr. Litig., 820 F.Supp.2d 78, ¶ 25.
[1] The Court has concluded that Stephen Carpenter is the best qualified person to serve as independent Ombudsman in this case. This decision is based upon Mr. Carpenter’s background, experience, and knowledge and understanding of the USDA programs involved in this case, as well as Mr. Carpenter’s experience in legal education and advocacy in and on behalf of African–American farming communities. It is also based on Mr. Carpenter’s experience as Senior Counsel for the Monitor in Pigford v. Vilsack.
[2] The Court also has concluded that it is appropriate to appoint Alva Waller as Deputy Ombudsman. Ms. Waller has an extensive background, experience, and knowledge of USDA programs, as well as experience in advocacy. She was Senior Staff and Managing Attorney for Claimant Services for the Office the Monitor in Pigford v. Vilsack.
Wherever this Order of Reference uses the term Ombudsman, it refers to both Mr. Carpenter and Ms. Waller unless otherwise explicitly stated.
The Court understands that the Ombudsman intends to commence operations on or about February 8, 2012. Until then, all calls from Class Members and the public should continue to be directed to the Claims Administrator at 1–877–810–8110. The Claims Administrator will forward all messages previously directed to the Ombudsman once the Ombudsman’s operations commence.
The Court further understands that the Ombudsman will need to be reasonably compensated for time, the expenses of the office (including but not limited to reasonable rental costs for private office space), and necessary travel. Pursuant to the Settlement Agreement, the Ombudsman’s fees and expenses shall be paid, upon Court approval, out

of the “2008 Funds” *193 and from the “Designated Account.” See Settlement Agreement §§ II.V, VI.A.
Accordingly, in conformance with the terms of the Settlement Agreement and this Court’s October 27, 2011 Order and Judgment and Opinion, and pursuant to the Court’s inherent power, it is hereby
ORDERED that Stephen Carpenter is appointed as independent Ombudsman under the Settlement Agreement, effective February 6, 2012, and that Alva Waller is appointed Deputy Ombudsman, effective February 6, 2012, each of whom shall have all of the responsibilities and obligations required under the Settlement Agreement and the October 27, 2011 Order and Judgment of this Court; it is
FURTHER ORDERED that the Ombudsman, as an agent and officer of the Court, shall have the responsibilities, powers, and protections set forth in the Settlement Agreement and this Order of Reference; and it is
FURTHER ORDERED that
1. In order to effectuate Ombudsman responsibilities regarding the implementation of the Settlement Agreement, the Ombudsman may contact Lead Class Counsel, the Court, the Track A Neutral, the Track B Neutral, the Claims Administrator, and the claimants on an ex parte basis.
2. In addition to the powers and authority granted elsewhere in this Order that are designed to allow the Ombudsman to effectuate responsibilities regarding the implementation of the Settlement Agreement, the Ombudsman shall have all the responsibilities and powers enumerated in the Settlement Agreement. Specifically, as set forth in Section VI.B of the Settlement Agreement the Ombudsman shall:
(a) be available to Class Members and the public through a toll-free telephone number in order to address concerns about the implementation of the Settlement Agreement;
(b) attempt to address any concerns or questions any Class Member may have with respect to the implementation of the Settlement Agreement;
(c) make periodic written reports (not less than every six months) to the Court, the Secretary of Agriculture, and Class Counsel on the good faith implementation of the Settlement Agreement;
(d) have access to the records maintained by the
2

In re Black Farmers Discrimination Litigation, 842 F.Supp.2d 190 (2012)

Claims Administrator and to the final decisions of the Track A Neutral and the Track B Neutral; and
(e) make recommendations to the Court relating to the implementation of the Settlement Agreement.
The Ombudsman shall not have the power to alter in any way substantive claims decisions made by the Neutrals or the Claims Administrator, nor shall the Ombudsman have the power to direct the Secretary of Agriculture and/or the United States to take any actions pursuant to the Settlement Agreement.
3. Pursuant to the Order and Judgment entered by the Court on October 27, 2011, the Ombudsman shall also receive information from Class Counsel and the Neutrals relating to potential scams on claimants and/or misrepresentations being made to claimants relating to the claims process or the relief available to claimants under the Settlement Agreement.
4. As an agent and officer of the Court, the Ombudsman shall enjoy the same protections from being compelled to give testimony and from liability for damages as those enjoyed by other federal judicial adjuncts performing similar functions.
5. In carrying out duties under Section VI of the Settlement Agreement, the Ombudsman *194 shall have broad authority to work with claimants through correspondence, by telephone, and, if necessary, in person.
6. Contacting the Ombudsman. In carrying out duties under Section VI of the Settlement Agreement, the Ombudsman will be available to Class Members and to the public through the following toll-free telephone number: 1–866–686–8682. The Ombudsman mailing address is:
In re Black Farmers Ombudsman
P.O. Box 19100
Washington, DC 20036
The Ombudsman will also maintain a website: www.inreblackfarmersombudsman. com.
7. Ombudsman Staffing. The Ombudsman shall have the authority to employ and/or contract with all necessary staff within a budget cap and hourly rate approved by the Court. The staff and contractors of the Ombudsman shall have whatever access to records and documents to which the Ombudsman is entitled that the Ombudsman

determines to be necessary to fulfill the staff or contracting role; however, the staff and contractors shall be given access only to non-privileged materials that are not otherwise prohibited from disclosure and that are necessary to enable the Ombudsman to perform the duties set out in the Settlement Agreement and this Order of Reference.
8. Fees and Expenses. Ombudsman fees and expenses will be paid as follows. In general, fees and expenses of the Ombudsman and staff shall be paid out of the “2008 Funds” and from the “Designated Account.” Toll-free line expenses, however, will be incorporated into Claims Administrator costs and be invoiced to Class Counsel by the Claims Administrator. To the extent that the payment mechanism for the Ombudsman conflicts with the Settlement Agreement, the mechanism found in this Order of Reference takes precedence.
9. Approval of Budgets. The Ombudsman shall submit budgets to the Court for approval. Each budget shall, among other matters, include proposed hourly rates, travel, and mailings. Each budget shall cover a period of three (3) to six (6) months. Copies of each budget shall be made available to the USDA and Class Counsel, who will have a period of ten (10) working days from their receipt of the budget within which they may file with the Court, with copies to the Ombudsman and the opposing party, written comments on or objections to the budget. Any party that does not comment on or object to a budget within these ten (10) working days shall be deemed to have waived any objection permanently. At the end of the ten (10) days, the Court will enter an order approving a total budget amount for the relevant time period.
10. USDA Payment for Ombudsman Costs. Pursuant to Section IV.G of the Settlement Agreement, upon a Court order approving an Ombudsman budget pursuant to Section 9 of this Order of Reference, and ordering payment of Ombudsman costs, USDA shall, within twenty (20) days of such order, provide the U.S. Department of the Treasury with all necessary forms and documentation to direct a payment to the Designated Account for the fees and expenses of the Ombudsman in the amount approved for the Ombudsman budget.
11. Timing of Budget Submissions. The Ombudsman generally will submit proposed budgets to the Court one (1) month in advance of the beginning of the budget period. The first budget period to be submitted to the Court begins on February 6, 2012. For this first period, the Ombudsman is directed to submit the budget *195 for the period beginning February 6, 2012 by March 6, 2012.
3

In re Black Farmers Discrimination Litigation, 842 F.Supp.2d 190 (2012)

12. Invoicing. The Ombudsman shall submit a statement to the Court approximately monthly for approval of fees and expenses with copies to counsel for both parties. Objections to the statement shall be filed with the Court, with copies to the Ombudsman and to the opposing party, within ten (10) days of the submission of the statement. Any party that does not object to a fee statement within ten (10) days of its submission shall be deemed to have waived any objection permanently. At the conclusion of the ten-day period, the Court will enter an order directing payment from the Court Registry of any sums approved. Any sum approved by the Court shall be paid within fifteen (15) days unless otherwise ordered or agreed upon.
13. Records. The Ombudsman shall keep a complete record of all fees and expenses, which shall be made available at the Court’s or the parties’ request for their inspection.
14. Payment into Court Registry. Within fifteen (15) days after a payment of the amount of an approved Ombudsman budget to the Designated Account pursuant to Section 10 of this Order of Reference, Class Counsel

shall deposit with the Clerk of Court, United States District Court for the District of Columbia, the full amount of the approved budget. Deposits made by Class Counsel shall be placed by the Clerk of Court in an interest-bearing account. Any monies on deposit with the Clerk of Court that are unspent in a given budget period shall be carried over and applied to payment of future fees and expenses of the Ombudsman. The funds deposited by Class Counsel with the Clerk of Court come from “2008 Funds,” as that term is defined in the Settlement Agreement.
15. Refund of Surplus. At such point as the Court concludes that the Ombudsman’s duties are completed, any surplus funds on deposit with the Clerk’s Office will be transmitted to Class Counsel for deposit in the “Designated Account,” as that term is defined in the Settlement Agreement.
SO ORDERED.

4

 </s> In re Black Farmers Discrimination Litigation

2012 WL 440719 Only the Westlaw citation is currently available.
United States District Court, District of Columbia.
In re BLACK FARMERS DISCRIMINATION LITIGATION.
Misc. No. 08–0511 (PLF). | Feb. 10, 2012.
Opinion
MEMORANDUM OPINION AND ORDER
PAUL L. FRIEDMAN, District Judge.
*1 This matter is before the Court on a Motion for Reconsideration filed by the Black Farmers and Agriculturalists Association, Inc. (“BFAA”) pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. See Motion for Reconsideration (Feb. 3, 2012) [Dkt. No. 265] (“Mot.”). The BFAA asks the Court to reconsider its Order of January 13, 2012, which denied the BFAA’s Rule 59(e) motion to reconsider the Court’s October 27, 2011 Order and Judgment approving a settlement in this class action. See In re Black Farmers Discr. Litig., ––– F.Supp.2d ––––, 2011 WL 5114830 (D.D.C. Oct.27, 2011) (Order and Judgment); Motion for Reconsideration as to the Exclusion of BFAA (Nov. 15, 2011) [Dkt. No. 239]; Opinion and Order (Jan. 13, 2012) [Dkt. No. 259]. The Court will deny the BFAA’s motion.
An order denying a Rule 59(e) motion qualifies as a “judgment” with respect to which a subsequent Rule 59(e) motion may be filed. See FED. R. CIV. P. 54(a) (defining “judgment” to include “any order from which an appeal lies”); FED. R. APP. P. 4(a)(4) (B)(ii) (indicating that appeal may be taken from an order denying a Rule 59 motion); Derrington–Bey v. District of Columbia Dep’t of Corrections, 39 F.3d 1224, 1226 (D.C.Cir.1994) (applying similar analysis to an order denying a Rule 60(b) motion); see also FED. R. CIV. P. 58(a)(4). The subsequent Rule 59(e) motion, however, does not bring up the merits of the original Judgment, but merely those of the order denying the first Rule 59(e) motion.
The BFAA’s first motion for reconsideration asked the Court to amend its October 2011 Order and Judgment to “include” the BFAA, which had been improperly

removed as a party to the litigation by its former attorneys prior to Judgment. The Court denied that motion for two reasons. First, the BFAA failed to identify “any harm that it or its members have suffered or will suffer as a result of its termination from the litigation.” Opinion and Order (Jan. 13, 2012) [Dkt. No. 259], at 4. Second, the record demonstrated “that the BFAA itself is at least partly to blame for the fact that this issue was not brought to the Court’s attention before the entry of Judgment.” Id. I n light of these findings, the Court concluded that the BFAA had not demonstrated entitlement to relief under Rule 59(e) because “no manifest injustice has occurred requiring the Court to amend its Order and Judgment.” Id. at 16.
In its latest motion, the BFAA asserts that it “can articulate cognizable harm that BFAA has and will suffer as a result of the improper removal of BFAA and the damages that the members of the BFAA have suffered and will suffer as a direct result of BFAA’s improper removal from the case in April of 2011.” Mot. at 1. The BFAA does not describe the harms that it and its members have suffered or will suffer. Rather, the organization “requests additional time to file a Memorandum In Support of its Motion for Reconsideration which motion will provide detailed explanation of the damages suffered by the BFAA and its members as a direct result of BFAA’s improper exclusion.” Id.
*2 The Court will deny the BFAA’s motion, because even if evidence of the type that the BFAA promises were to be provided, such evidence would not constitute a basis for revisiting the Court’s denial of the BFAA’s first motion for reconsideration. Although the Court explained in its January 2012 Opinion that no evidence of harm resulting from the BFAA’s removal had been presented, see Opinion and Order (Jan. 13, 2012) [Dkt. No. 259], at 16–18, the Court continued: “To the extent that the BFAA suffers any adverse consequences from its lack of party status at the time of Judgment, these consequences do not amount to a manifest injustice because the BFAA’s own conduct contributed to them.” Id. at 18 (emphasis in original). As the Court explained, the BFAA admittedly was aware of its termination from the case weeks before the Court entered Judgment, and with proper diligence it would have been aware months earlier. The BFAA nevertheless failed to bring this issue to the Court’s attention until after Judgment, and the organization offered no explanation for its delay. See id. at 13–15, 18–19.
Because the Court has already determined that “any” adverse consequences of the BFAA’s removal are
1

In re Black Farmers Discrimination Litigation
attributable to the BFAA’s own lack of diligence, and that such consequences therefore cannot entitle the BFAA to relief under Rule 59(e), the organization’s present request to supply the Court with details of such consequences is futile. See Piper v. U.S. Dep’t of Justice, 312 F . Supp.2d 17, 23 (D.D.C.2004) (“ ‘[M]anifest injustice does not exist where, as here, a party could have easily avoided the outcome, but instead elected not to act until after a final order had been entered.’ ”) (quoting Ciralsky v. Central Intelligence Agency, 355 F.3d 661, 671 (D.C.Cir.2004)).

Accordingly, it is hereby
ORDERED that the BFAA’s Motion for Reconsideration [Dkt. No. 265] is DENIED.
SO ORDERED.

2

 </s> In re Black Farmers Discrimination Litigation, 587 F.Supp.2d 23 (2008)

587 F.Supp.2d 23 United States District Court,
District of Columbia.
In re BLACK FARMERS DISCRIMINATION LITIGATION.
This document relates to All Cases.
Misc. No. 08-0511 (PLF). | Nov. 7, 2008.
Synopsis Background: African-American farmers brought discrimination actions against United States Department of Agriculture. After actions were consolidated, certain plaintiffs moved to modify proposed case management order (CMO).
Holding: The District Court, Friedman, J., held that any proposed CMO had to ensure that matter of attorney fees would be handled in fair, transparent, uniform, and readily comprehensible manner.
Motion denied.
Attorneys and Law Firms
*23 David A. Bell, Crowell & Moring LLP, Washington, DC, Mike Espy, PLLC, Jackson, MS, Phillip L. Fraas, Stinson Morrison Hecker, LLP, Washington, DC, Gregorio Francis, Morgan & Morgan, P.A., Orlando, FL, David Joseph Frantz, Brian P. Phelan, Conlon, Frantz & Phelan, LLP, Washington, DC, Laurel Pyke Malson, Andrew H. Marks, Crowell & Moring LLP, Washington, DC, Gary Edward Mason, The Mason Law Firm, LLP, Washington, DC, Harris L. Pogust, Pogust & Braslow, LLC, Conshohocken, PA, Henry Sanders, Rose M. Sanders, Chestnut Sanders Sanders & Pettaway, Selma, AL, Scott William Weinstein, Morgan & Morgan, P.A., Fort Myers, FL, for Plaintiffs.
Doris Denise Coles-Huff, Rudolph Contreras, U.S. Attys. Office, Washington, DC, Rachel J. Hines, Tamra Tyree Moore, U.S. Dept. of Justice, Civil Division, Federal Programs Branch, Washington, DC, Michael Sitcov, U.S. Dept. of Justice, Washington, DC, for Edward T. Schafer.
Opinion

MEMORANDUM OPINION AND ORDER

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on the Supplemental Motion of Certain Plaintiffs to Modify Proposed Case Management Order No. 1 (the “CMO Motion”), and the Morgan Group’s Response to Supplemental Motion of Certain Plaintiffs to Modify Case Management Order No. 1 (the “CMO Response”).

The CMO Motion was submitted jointly by the plaintiffs in most of the actions consolidated under this miscellaneous case number. This motion includes, and asks the Court to approve, a proposed case management order.1 The proposed case *24 management order would, among other things: (1) name Henry Sanders of Chestnut, Sanders, Sanders, Pettaway & Campbell, L.L.C. and Andrew H. Marks of Crowell & Moring, L.L.P. as plaintiffs’ co-lead counsel; (2) name Laurel Pyke Malson of Crowell & Moring, L.L.P. as plaintiffs’ liaison counsel; (3) establish a steering committee of plaintiffs’ counsel including Mr. Sanders, Harris L. Pogust of Pogust, Braslow & Millrood, L.L.C., James Scott Farrin of the Law Offices of James Scott Farrin, and Scott Wm. Weinstein of Morgan & Morgan, P.A.; and (4) require the plaintiffs’ steering committee to create and manage an informational website and telephone bank for the benefit of all plaintiffs and potential plaintiffs. See CMO Mot. at 3-7.

1

The proposed case management order appended to the

CMO Motion modifies slightly an earlier proposed case

management order submitted by the same group of

plaintiffs on August 22, 2008. The proposed case

management order submitted on August 22, 2008, in

turn, modifies slightly an earlier proposed case

management order submitted on July 24, 2008.

The only material difference between the latest

proposed case management order and the one

submitted on August 22, 2008 is the proposed

substitution of Henry Sanders for J.L. Chestnut as

co-lead counsel. Mr. Chestnut passed away on

September 30, 2008.

The CMO Response was submitted by plaintiffs in Civil Action No. 08-1188. These plaintiffs refer to themselves as “the Morgan Group”-presumably because they are represented by Morgan & Morgan, P.A.-and to the plaintiffs who joined the CMO Motion as “the Megagroup.” The Morgan Group argues that only Mr. Marks should serve as plaintiffs’ lead counsel. See CMO
1

In re Black Farmers Discrimination Litigation, 587 F.Supp.2d 23 (2008)

Resp. at 2. Alternatively, “if it is the unstated goal [of the Megagroup] that an African American lawyer should share the [lead counsel] role with Mr. Marks,” the Morgan Group argues that Mr. Marks, who is white, should share that role with Gregorio Francis of Morgan & Morgan, P.A., who is African-American.
The Court will not address the lead counsel dispute at this time because the latest proposed case management order-and particularly what is not included therein-raises more fundamental and pressing issues. As both groups know, this Court on more than one occasion has expressed its concerns about the management of these consolidated cases and the importance of transparency and uniformity on the issue of fees to be charged to plaintiffs and potential plaintiffs. In particular, the Court has expressed concerns about: (1) the dissemination of accurate and impartial information about these consolidated cases to all plaintiffs and potential plaintiffs; (2) the reasonableness and transparency of the attorneys’ fee agreements offered to all plaintiffs and potential plaintiffs; (3) the consistency of attorneys’ fee agreements across all firms involved in this case; (4) the role of the Court now and after settlement in assuring that all plaintiffs and potential plaintiffs are treated fairly and equally with respect to fees and costs (a role that, as the Court explained at the status conference, might be more robust and clearly defined if these actions were certified as class actions under Rule 23 of the Federal Rules of Civil Procedure); and (5) the necessity of reassuring all plaintiffs and potential plaintiffs that “signing up” for these lawsuits will cost them nothing or close to it, and that any and all fees will come either because, at the end of the day, they are “prevailing parties” under the relevant statutes or, to some very minimal extent, to compensate counsel for management and implementation.
The Court expressly stated at the status conference on July 30, 2008 that the question of attorneys’ fees must be “resolve[d] up front,” Transcript of Hearing at 17 (July 30, 2008) (“Transcript”), “before I decide who’s going to be lead class counsel and who’s going to be [on the] executive committee.” Id. at 20. The Court assumed, in light of the concerns it expressed, that any proposed case management *25 order would address this issue. The Court further observed at the status conference:
We’ve got a statute which provides attorneys’ fees to the prevailing party. Now why doesn’t every lawyer in this case reach the same agreement up front? Now, if you want to have a little bit in a kitty to deal with implementation because we had some problems on whether you get paid for the implementation phase versus the prevailing plaintiff phase, fine.

* * *
And you all ought to resolve [the attorneys’ fees issue] up front. I’ve seen the Web sites of some of the law firms, and I don’t like them. I don’t like people saying it’s going to cost you a third of your relief, whatever I get for you, or 20 percent of your relief, whatever I get for you, because that’s not what Congress had in mind.
Congress had in mind to try to take these 63,000 people who I wouldn’t let in to Pigford because they were late, and let them in. And let’s go back and pretend that we’re back on day one, say to them, you get what everybody else got. That’s what I think Congress intended, and if that’s what Congress intended, it’s $55,000 plus debt relief plus tax relief. It all goes to the farmer. And then [the attorneys] file attorneys’ fees claims.
* * *
To me, it’s very important that this remain a class action until we know what mechanism is in place. It’s very important that we have the same rules or very similar rules to the rules that governed in Pigford, if we’re going to try to put everybody back in a position that they were in before.
* * *
So, what I’m concerned about when I say-this is just one example-that you all need to get on the same page about what you want to do about legal fees, is because it’s how [plaintiffs and potential plaintiffs are] going to react. You know, you and I and Ms. Malson and Mr. Fraas, we’re Washington lawyers, and we’re suspected by lots of people, and certainly by black farmers in the South, and they’re not going to understand if somebody gets $10,000 less than the next guy when the case is settled or resolved in some fashion, unless there’s-even if there’s a rational explanation, but certainly if it’s because one lawyer took a little more money or was paid a little more money than another lawyer.
* * *
[I]t wasn’t perfect, but over time there was a level of credibility that came from [the settlement in the original Pigford case] that is so important going forward. And at the end of the day it may not matter whether the settlement or the solution [in these consolidated cases] looks like this ... or looks like that, but there’s got to be some consistency and some rationality and some feeling that, you know, we were all treated equally [and] fairly.... So, the legal fees
2

In re Black Farmers Discrimination Litigation, 587 F.Supp.2d 23 (2008)

question is an example of that.
Transcript at 17-23. Frankly, these concerns have only been heightened in the Court’s mind since the passing of Mr. Chestnut, who demonstrated a unique ability in Pigford to communicate with members of the class, African-American farmers in the South.
The Court will not approve a proposed case management order unless it adequately addresses these issues. In addition, any proposed case management order should: (1) specify the attorneys’ fees to be charged to plaintiffs; (2) provide a representative fee agreement for the Court’s review; (3) require all firms to charge the *26 same attorneys’ fees (or explain why this should not be the case); and (4) otherwise persuade this Court that there are mechanisms in place to assure all plaintiffs and potential plaintiffs that the matter of attorneys’ fees will be handled in a fair, transparent, uniform and readily comprehensible manner. The Court therefore will deny all pending motions for the entry of a case management order and direct counsel to meet and confer about the issues identified above.
As the Court was preparing this Memorandum Opinion and Order, the plaintiffs filed a motion for an immediate status conference, noting that they have received distressing reports over the last few weeks concerning “unscrupulous individuals and groups [that] have been making grossly distorted representations within the African-American farmers community regarding the potential rights of African-American farmers to seek relief” in these cases, and information suggesting that some African-American farmers are being taken advantage of by being charged a “sign up” fee for participation in this lawsuit. Plaintiffs’ Motion for Immediate Status Conference at 2. Plaintiffs cited a number of examples of incidents that gave them concern. Like the plaintiffs, this Court finds reports of such incidents, if true, “extremely troubling.” Id. at 2.
For those lawyers who have been involved in the Pigford litigation (Ms. Sanders, Mr. Sanders, Mr. Fraas and Mr. Frantz), these incidents should come as no surprise. Similar things occurred in Pigford, and counsel, with the assistance of the court-appointed monitor, had to develop

methods to deal with them. The Court would have thought that counsel would have anticipated such possibilities. Furthermore, in view of the Court’s statements at the July 30 status conference concerning possible transmission of misinformation relating to this case, see Transcript at 8-9, the Court assumed that by now, with or without a case management order in place, counsel would have consulted at length with the court-appointed monitor in Pigford as to how she dealt with these and various other circumstances that might be expected to arise in this case as well.

In view of the foregoing, the Court will schedule a status conference to further discuss the issues discussed in this Memorandum Opinion and Order. After that status conference, the parties will be required to submit a new proposed case management order. Accordingly, it is hereby

ORDERED that Plaintiffs’ Motion to Modify Proposed Case Management Order No. 1 and Memorandum in Support [6] is DENIED as moot; it is

FURTHER ORDERED that the Supplemental Motion of Certain Plaintiffs to Modify Proposed Case Management Order No. 1[13] is DENIED; it is

FURTHER ORDERED that Plaintiffs’ Motion for Immediate Status Conference [18] is GRANTED; and it is

FURTHER ORDERED that a status conference is scheduled for November 14, 2008 at 10:00 a.m. At that status conference, the parties should be prepared to discuss how they plan to craft a new proposed case management order and, if necessary, take additional steps to address the Court’s concerns.2

2

The parties should also be prepared to discuss whether

they have engaged in further discussions about the lead

counsel dispute, and if so, whether they have made any

progress on that front.

SO ORDERED.

3

 </s> Case 1:08-mc-00511-PLF Document 231 Filed 10/27/11 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

This document relates to:

)

)

ALL CASES

)

)

Misc. No. 08-0511 (PLF)

ORDER AND JUDGMENT
For the reasons set forth in the Opinion issued this same day, it is hereby
ORDERED that [187] the motion for final approval of the proposed class
settlement is GRANTED; it is
FURTHER ORDERED that [179] the consent motion to approve appointment of
the Track A and Track B neutral is GRANTED; it is
FURTHER ORDERED that the revised Claim Form filed on October 7, 2011
[226] is APPROVED; and it is
FURTHER ORDERED that:
1. The following settlement class ("the Class") is certified in the action
styled as In re Black Fanners Discrimination Litig., Misc. No. 08-0511:
All individuals: (1) who submitted late-filing requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree.

Case 1:08-mc-00511-PLF Document 231 Filed 10/27/11 Page 2 of 13
2. The following plaintiffs are appointed as representatives of the Class
("Class Representatives") pursuant to Rule 23(aX4) of the Federal Rules of Civil Procedure:
James Copeland 3 Effingham Court Columbus, GA 31909
Earl Moorer, on behalf of the Estate of John Moorer 292 Denton Rd. Lowndesboro, AL 36752
Marshallene McNeil 472 Hwy41 North Camden, AL 36726
3. For the purposes of effectuating the settlement agreement, the following
individuals are appointed Lead Class Counsel:
Andrew H. Marks, Esq. CROWELL &MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (T): 202-624-2500 (F): 202-628-5116
Henry Sanders, Esq. CHESTNUT, SANDERS, SANDERS, PETTAWA y &CAMPBELL, LLC One Union Street Selma, AL 36701 (D: 334-875-9264 (F): 334-875-9853
Gregorio Francis, Esq.
MORGAN &MORGAN, P.A.
20 North Orange Avenue, Suite 1600 Orlando, Florida 32801 (T): 407-420-1414
These Lead Class Counsel are responsible for carrying out the duties of Lead
Class Counsel set forth in the Settlement Agreement.
2

Case 1:08-mc-00511-PLF Document 231 Filed 10/27/11 Page 3 of 13
4. Pursuant to Rule 23(g) of the Federal Rules of Civi l Procedure, for the
purpose of effectuating the settlement agreement, the following individuals are appointed as
Class Counsel: I
Henry Sanders, Esq.' Fayarose Sanders, Esq.·
C HESTNUT, SANDERS, SANDERS, PETTAWA Y &CAMPBELL, LLC
One Union Street Selma, AL 36701 (T): 334-875-9264 (F): 334-875 -9853
David Frantz, Esq.· Brian P. Phe lan, Esq. CONLON, FRAl"<T"Z &PHELAN, LLP 1818 N Street, N.W., Suite 400 Washington, DC 20036 (T) 202-33 1-7050 (F) 202-33 1-9306
Othello C. Cross, Esq.' Jesse L. Kearney, Esq. CROSS &KEARNEY, PLLC 1022 W. 6th Avenue Pine Bluff, AR 71601 (1") 870-536-4056 (F) 870-536-02 16
Andrew H. Marks, Esq.·
Laurel Pyke Malson, Esq.' Michael W. Lieberman, Esq. CROWELL &MORING LLP 100 1 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (1"): (202) 624-2500 (F): (202) 628-5116
*Indicates membership on Plaintiffs' Steering Committee.
3

Case 1:08-mc-00511-PLF Document 231 Filed 10/27/11 Page 4 of 13
Don O. Gleason, Jr., Esq. Michael McHenry, Esq.
GLEASON &McHENRY
P.O. Box 7316 Tupelo, MS 38802 (T) 662-690-9824 (F) 662-690-9826
Stephen Gowan, Esq.
GOWAN LAW OFFICE, PLLC
P.O. Box 38 McAdams, MS 39107 (T): 662-290-0042 (F): 662-290-0042
Wi lliam Lewis Garrison, Esq. William L. Bross, Esq. Gayle L. Douglas, Esq.
HENINGER, GARRISON & D AVIS LLC
P.O. Box 11 3IO 2224 Ist Avenue North Birmingham, AL 35202
<n 205-326-3336
(F) 205-326-3332
Kindaka Sanders, Esq. Attorney at Law 209 Broad Street Selma, AL 3670 I (1) 334-327-1993 (F) 334-460-6611
Jimmy S. Caiton, Jr., Esq. Jimmy S. Caiton, Sr., Esq.
LAW OFFICES OF CALTON &CALTON
226 East Broad Street Eufaula, AL 36027
<n 334-687-3563
(F) 334-687-3564
4

Case 1:08-mc-00511-PLF Document 231 Filed 10/27/11 Page 5 of 13
James Scott Farrin, Esq.· Eric Haase, Esq.
LAw OFFICES OF JAMES SCOIT FARRIN
280 South Mangum Street, Suite 400 Durham, NC 2770 I (T) 919-688-499 1 (F) 9 19-688-4468
Marc Boutwell, Esq. Charles Edwards, Esq.
THE LA W OFFICES OFMARC B OUTWELL, P LLC
P.O. Box 956 Lexington, MS 39095 (T) 662-834-9029 (F) 662-834-3 117
Donald McEachin, Esq.
McEACHIN &GEE LLP
4719 Nine Mile Road Henrico, VA 23223 (T) 804-226-4111 (F) 804-226-8888
Gregorio A. Francis, Esq.· Scott W. Weinstein, Esq.· Alphonso Michael Espy, Esq. J. Andrew Meyer. Esq.
MORGAN &MORGAN, P .A.
20 North Orange Avenue, Suite 1600 Orlando, FL 32801 (T) 407-420-1 414
Anurag Vanma, Esq. Benjamin G. Chew, Esq. Jude Kearney, Esq. Ramona Quillet, Esq.
PAITON BOGGS, LLP
2550 M St reet, N. W. Washington, DC 20037 (T) 202-457-6490 (F) 202-457-63 15
5

Case 1:08-mc-00511-PLF Document 231 Filed 10/27/11 Page 6 of 13
Harris L. Pogust, Esq.' Tobias L. Millrood, Esq. POOUST, BRASLOW &MILLROOD 161 Washington Street, Suite 1520 Conshohocken, PA 19428 (T): (610) 941-4204 (F): (610) 941-4245
Reed Colfax, Esq. John P. Reiman, Esq. Jennifer Klar, Esq. RELMAN &DANE, PLLC 1225 19th Street N.W., Suite 600 Washington, DC 20036-2456 (T) 202-728-1888 (F) 202-728-0848
Michael A. Rutland, Esq. RUTLAND &JANKIEWICZ, LLC 128 N. Orange Ave. Eufaula, AL 36027 (T): 334-687-9899
Phillip L. Fraas, Esq.' STINSONMORRISON HECKERLLP 1150 18th Street N.W. #800 Washi ngton, DC 20036-3816 (T) 202-572-9904 (F) 202-572-9982
Joseph P. Strom, Jr., Esq.' Mario A. Pacella, Esq. Bakari Sellers, Esq. STROM LA WFIRM, LLC 2110 N. Beltline Blvd., Suite A Columbia, SC 29204 (T) 803-252-4800 (F) 803-252-480 I
6

Case 1:08-mc-00511-PLF Document 231 Filed 10/27/11 Page 7 of 13
Walter B. Calton. Esq. Attorney at Law 312 East Broad Street Eufaula. AL 36027
<n 334·687-2407
(F) 334-687·2466
These Class Counsel are responsible for carrying out the duties of Class Counsel set forth in the Settlement Agreement.
5. The certification of the Class, appointment of Class Representatives, and appointment of Class Counsel, Lead Class Counsel, and the Plaintiffs' Steering Conunittee are solely for the purposes of effectuating the Settlement Agreement. If the Settlement Agreement is terminated or is not conswnmated for any reason, the foregoing certification of the Class, appointment of the Class Representatives, and appointment and designation of Class Counsel, Lead Class Counsel, and the Plaintiffs' Steering Committee shall be void and of no effect, and the Parties to the Settlement Agreement shall be returned to the status each occupied before entry of this Order without prejudice to any legal argument that any of the Parties to the Settlement Agreement might have asserted but for the Settlement Agreement.
6. At a date to be established, this Court will award attorneys' fees and expenses equal to not less than 4.1% and not more than 7.4% of the Fee Base (as defined in the Settlement Agreement). These fees and expenses shall be paid and distributed in accordance with the terms of the Settlement Agreement.
7. No counsel who is designated as Class Counsel by this Order shall seek to enforce the terms of any existing contingency fee arrangements with Class Members.
7

Case 1:08-mc-00511-PLF Document 231 Filed 10/27/11 Page 8 of 13
8. For purposes of effectuating the Settlement Agreement, a "Track A Individual Counsel Fee" (as defmed in the Settlement Agreement) may not exceed 2% ofa Class Member's Final Track A Award. Notwithstanding any other agreement, any counsel who is not designated as Class Counsel and who is retained by a member of the Class to represent such an individual for a Track A claim under the Settlement Agreement shall be limited to a 2% contingency fee.
9. For purposes of effectuating the Settlement Agreement, a "Track B Fee" (as defmed in the Settlement Agreement) may not exceed 8% of a Class Member's Final Track B Award. Notwithstanding any other agreement, any counsel who is retained by a member of the Class to represent such an individual for a Track B claim under the Settlement Agreement shall be limited to an 8% contingency fee.
10. The "Cost Cap," as defined in Section 11.1 of the Settlement Agreement, is set at $35,000,000.
II. Class Counsel may move for the payment of up to an additional $3,500,000 from 2008 Funds to pay for reasonable additional fees and costs above the Cost Cap incurred by the Track A Neutrals, the Track B Neutrals, and/or the Claims Administrator arising out of the reporting requirements and/or the audit provisions of Section 201 (h) of Pub. L. 111-291,124 Stat. 3064 (Dec. 8, 2010).
12. With the consent of the Secretary of Agriculture and the Attorney General of the United States, Epiq Systems, Inc. is approved to serve as Claims Administrator for purposes of effectuating the Settlement Agreement and shall fulfill the roles designated for the Claims Administrator in the Settlement Agreement.
8

Case 1:08-mc-00511-PLF Document 231 Filed 10/27/11 Page 9 of 13
13. With the consent of the Secretary of Agriculture and the Attorney General, JAMS Mediation, Arbitration, and ADR Services ("JAMS") is approved to serve as both the Track A and Track B Neutral for purposes of effectuating the Settlement Agreement and to fulfill the role designated for the Track A and Track B Neutrals in the Settlement Agreement. Lester Levy of JAMS is designated as Lead Track A Neutral, and Michael Lewis of JAMS is designated as Lead Track B Neutral.
14. Each individual designated by JAMS to serve as a Track A Neutral or Track B Neutral must notify Lead Class Counsel of his or her designation. Within ten (10) days of such notification, Lead Class Counsel shall inform the Court of the names of any individuals so designated. The Court will then administer an oath to each individual so designated as follows:
I swear that I will fulfill my role as Neutral under the Settlement Agreement in In re Black Fanners Discrimination Litig. faithfully, fairly, and to the best of my ability. No individual designated as a Track A or Track B Neutral may take any action in that role before taking the aforementioned oath administered by the Court. 15. Payments to the Claims Administrator, the Track A Neutral, and the Track B Neutral are Implementation Costs that shall be paid in accordance with Sections lV.C, IV ,D, IV,E, IV,F, and IV.H of the Settlement Agreement upon application of Class Counsel and approval by this Court. Such payments shall not, in total, exceed the Cost Cap. 16. Paragraphs 30-34 of the Order Granting Preliminary Approval of Settlement (Docket No. 172), relating to use and dissemination of Pigford lists, remain in full force and effect.
9

Case 1:08-mc-00511-PLF Document 231 Filed 10/27/11 Page 10 of 13
17. In order to provide the parties with sufficient time to begin implementation of this Order, the 180·day claim period specified in the Settlement Agreement shall commence on November 14, 20 11 and end on May 11 ,20 12. To effect this order, Section II.D of the Settlement Agreement is hereby revised to read as follows: "The 'Claim Deadline' is May II , 20 12."
18. Purs uant to Rules 23(e) and 41(a)(l) of the Federal Rules of Civil Procedure, the following cases pending before the United States District Court for the District of Columbia be and the same are hereby dismissed with prejudice:
a. In re Black Farmers Discrimination Litig., Misc. No. 08·05 11 ; b. Agee v. Schafer, Civi l Action No. 08-0882; c. Kimbrough v. Schafer, Civil Action No. 08-090 I ; d. Adams v. Schafer, Civil Action No. 08-09 19; e. National Black Farmers Association v. Schafer, Civil Action No. 08·00940; f. Bennett v. Schafer, Civil Action No. 08-00962; g. McKinney v. Schafer, Civil Action No. 08- 1062; h. Bolton v. Schafer, Civil Action No. 08-1070; I. Copeland v. Vi/sack, Civil Action No. 08-1188; j . Hampton v. Schafer, Civil Action No. 08-1381 ; k. Robinson v. Schafer, Civil Action No. 08- 15 13; I. James v. Schafer, Civil Action No. 08-2220; m. Beckley v. Vi/sack, Civil Action No. 09-1 019; n. Sanders v. Vi/sack, Civil Action No. 09-1 318;
10

Case 1:08-mc-00511-PLF Document 231 Filed 10/27/11 Page 11 of 13
o. Russell v. Vi/sack, Civil Action No. 09-1323; p. Bridgeforth v. Vi/sack, Civil Action No. 09-1401; q. Allen v. Vi/sack, Civil Action No. 09-1422; r. Anderson, v. Vi/sack. Civil Action No. 09-1507; s. Edwards v. Vi/sack, Civil Action No. 10-0465; t. Latham v. Vi/sack, Civil Action No. 10-0737; u. Andrews v. Vi/sack, Civil Action No. 10-0801 ; v. Sanders v. Vi/sack, Civil Action No.1 0-1 053; w. Johnson v. ViIsack, Civil Action No.1 0-0839; and x. Abney v. Vi/sack, Civil Action No.1 0-1 026. If, for any reason, the Settlement Agreement becomes void, the Plaintiffs shall have the right to reinstate any individual complaints that are dismissed pursuant to this Order. 19. By this Order and the Judgment entered pursuant to it, the Class Representatives, the Class, and its members and their heirs, administrators, successors, and assigns release, waive, acquit and forever discharge the United States and the Secretary from and are forever barred and precluded from prosecuting, any and all claims, causes of action, or requests for any monetary relief, including, but not limited to, damages, tax payments, debt relief, costs, attorneys' fees, expenses, and/or interest, whether presently known or unknown, that have been or could have been asserted in the Consolidated Case by reason of, with respect to, in connection with, or which arise out of, any matters alleged in the Consolidated Case that the Class Representatives, the Class, and its members, and their heirs, administrators, successors, and assigns have against the United States or the Secretary, or any of them. Furthermore, the
II

Case 1:08-mc-00511-PLF Document 231 Filed 10/27/11 Page 12 of 13
Class Representatives, the Class, and its members and their heirs, administrators, successors, and assigns release, waive, acquit and forever discharge any and all rights they have or may have under Public Law No. 110-234 and or Public Law No. 110-246, § 14012 (2008)("§ 14012") and each of its provisions. Finally, the Class Representatives, the Class, and its members and their heirs, administrators, successors, and assigns release, waive, acquit and forever discharge any and all rights they have or may have to request or obtain any information, documents, testimony, or di scovery in the Consolidated Case or under Section 14012 from the United States or the Secretary of Agriculture.
20. Without affecting the finality of thi s judgment, the Settlement Agreement shall remain in full force and effect according to its terms.
21. Without affecting the finality of this judgment, the Court retains jurisdiction over this Settlement, including the administration and fulfillment of the Settlement, and retains continuing jurisdiction for the purpose of enforcing the Settlement Agreement and this Final Order and Judgment, and other matters related to or ancillary to the foregoing, until 200 days after the date the Final Accounting is completed under terms of the Settlement Agreement.
22. Any person wishing to appeal this final judgment shall post a bond with this Court in the amount of $1 ,500 to cover the costs of appeal as a condition of prosecuting the appeal. The Court will consider whether any further bond should be required at a later point.
23. The Parties are authorized to communicate with putative Class Members regarding the provisions of the Settlement Agreement so long as such communications are not inconsistent with the Settlement Agreement. The Secretary shall refer to the toll-free telephone
12

Case 1:08-mc-00511-PLF Document 231 Filed 10/27/11 Page 13 of 13

number operated by the Claims Administrator any inquiries from putative Class Members about

claims to be filed under the Settlement Agreement.

24. Neither the fact of settlement, nor the Settlement Agreement, nor any

provision therein, nor any negotiations, statements, or proceedings in connection therewith, shall

be construed as, or be deemed to be evidence of, an admission or concession on the part of any of

the Representative Plaintiffs, Class Counsel, any putative Class Members, the Secretary of

Agricluture, or the United States of any liability or wrongdoing by them, or that the claims and

defenses that have been, or could have been, asserted in In re Black Farmers Discrimination

Litigation were or were not meritorious.

25. Class Counsel and the Neutrals shall promptly bring to the attention of the

Inspector General of the Department of Agriculture. to the United States Department of Justice,

and to the Ombudsman appointed by the Court pursuant to the Settlement Agreement

information that they receive relating to potential scams on claimants and/or misrepresentations

being made to claimants relating to the claims process or the relief available to claimants under

the Settlement Agreement.

26. This is a final appealable order. See FED. R. APP. P. 4(a).

SO ORDERED.
I ,I DATE: /0 ~t-I

Q~!.. ;<.d:.....,~
PAUL L. FRIEDMAN United States District Judge

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Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 1 of 70

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

This document relates to:

)

)

ALL CASES

)

)

Misc. No. 08-05 I I (PLF)

OPINION This matter is before the Court on the motion of named plaintiffs James Copeland, Earl Moorer, and Marshallene McNeil ("the Moving Plaintiffs") for final certification of a plaintiffs' class and approval ofa settlement agreement that would resolve the pending claims of approximately 40,000 plaintiffs and compensate thousands of victims of face discrimination whose complaints have gone unanswered for decades. The defendant, the United States Department of Agriculture, supports the motion, After careful consideration of the arguments made by the Moving Plaintiffs and the defendant, the comments and objections offered by interested parties, the statements made by interested persons at the Fairness Hearing on September I, 2011, and the long history of this case and that of its predecessor, Pigford v. Glickman, Civil Action No. 97-1978 (D.D.C.), the Court will grant the motion, certify a class pursuant to Rule 23(b)(1 )(B) of the Federal Rules of Civil Procedure, and approve the settlement. [ Although, like any compromise, the settlement
The papers considered by the Court in connection with this matter include the following: Amended Class Action Complaint to Detennine Merits and Damages Pursuant to Section 14012 ofthe Food, Conservation and Energy Act 0[2008, as Amended, Docket No. 163 ("Am. Compl."); Certain Plaintiffs' Motion to Stay the Class Certification Proceedings, Docket

Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 2 of 70
agreement before the Court will not satisfy everyone, it offers class members their best option for
obtaining meaningful redress of longstanding injuries.
No. 66 ("Mot. to Stay"); Motion for Leave to Withdraw the July 6, 2009 Reply in Support of the Motion to Stay Class Certification Proceedings, Docket No.1 08 ("Mot. to Withdraw"); Motion for Preliminary Approval of SenIement, Certification ofa Rule 23(b)(I)(B) Senlement Class, and for Other Purposes, Docket No. 161 ("Mot. for Prelim. Approval"); Class Counsel's Motion for an Award of Attorneys' Fees and Expenses, Docket No. 180 ("Mot. For Fees"); Plaintiffs' Motion for Final Approval of Settlement, Docket No. 187 ("'Mot. for Final Approval"); Supplemental Memorandum in Support of Consent Motion to Approve Appointment of Track A and Track B Neutral, Docket No. 192 ("Supp. Mem."); Notice of Revision of Proposed Claim Form, Docket No. 226; Letter from Dewayne L. Goldmon on behalf of the National Black Agricultural Alliance, Docket No. 211 ("NBAA Lener"); Lener from Eddie Lee Gray, Docket No. 206 ("Gray Lener"); Lener from Ralph Paige on behalf of the Federation of Southern Cooperatives Land Assistance Fund, Docket No. 204 ("Federation Letter"); Notice of Appearance on behalf of the Black Farmers and Agriculturalists Association, Docket No. 208 ("Burrell Notice"); Notice of Appearance, Docket No. 212 ("Price Notice"); Notice of Objection to Senlement, Docket No. 183 ("Martin Obj."); Objection, Docket No. 215 ("Bates Obj."). The Court also reviewed the following materials: Motion by Jolm W. Boyd for Leave to Appear and Speak at Fairness Hearing of September 1,2011, Docket No. 203; Letter from William V. Paramore requesting permission to participate in September 1, 2011 fairness hearing, Docket No. 205; Letter to the Court from Joyce A. Smith requesting permission to participate in September 1, 2011 fairness hearing, Docket No. 207; Letter to the Court from Gloria Davis Gilmore requesting permission to participate in September 1,2011 fairness hearing, Docket No. 209; Letter to the Court from Bernice C. Atchison requesting permission to participate in September 1,2011 fairness hearing, Docket No. 210; Objection to Proposed Settlement Agreement by Henry Barris Muhammad Robbalaa, Docket No. 214; Objection to Proposed Settlement Agreement by Ada C. Bates, Ava L. Bates, Brad E. Bates, Kerry F. Bates, Theodore B. Bates, Jr., Karla K. Bates-Adams, Terrie L. Bates-Best, Docket No. 215; Objection to Proposed Settlement Agreement by Lillie M. Wingard, Docket No. 216; Objection to Proposed Settlement Agreement by Doris Gray, Docket No. 217; Objection to Proposed Settlement Agreement by Robert E. Walker, Docket No. 218; Objection to Proposed Settlement Agreement by Errol Von Hart, Docket No. 219; Objection to Proposed Settlement Agreement by Diahann C. Stevens, Docket No. 220; Objection to Proposed Settlement Agreement by Booker T. Woodard, Docket No. 221; Objection to Proposed Settlement Agreement by Justin G. Fouts and Willa G. Fouts, Docket No. 222; Defendant's Response to Objection to Settlement Agreement Based on Propriety of Class Cenification Under Rule 23(b)(I), Docket No. 190 ("Def.'s Certification Resp."); and Reply to Plaintiffs' Response to Objection II to the Settlement Agreement, Docket No. 213 ("Martin Reply"). The Court also reviewed the transcript of the September 1,2011 Fairness Hearing ("Sept. 1 Tr.").
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I. BACKGROUND A. Pigford v. Glickmon ("Pigford /") I. Claims of Pigford 1Plaintiffs and Their Resolution by Consent Decree In 1997, a group of African-American fanners brought suit in thi s Court against Dan Glickman. at that time the Secretary of the United States Department of Agriculture ("USDA"). Their final amended complaint alleged that. from January 1983 through January 1997, the USDA discriminated on the basis of race in allocating benefits under various federal agricultural programs, denying African-American fanners loans and other benefits that were freely granted to similarly situated white farmers. See Pigford v. Glickman, Civil Action No.
97-1978. Seventh Amended Complaint at 4 (D.D.C. Oct. 26. 1998) ("Pigford I Compl."). The Pigford plaintiffs further alleged that, when they attempted to protest that discrimination by filing complaints with the USDA, the Department failed to investigate those complaints, flouting its responsibilities under federal civil rights laws, including the Civil Rights Act of 1964 and the
Equal Credit Opportunity Act ("ECOA"). Pigford I Compl. at 4. According to the complaint. that history of discrimination in the administration of USDA farm programs, combined with the agency's long-standing refusa1 to investigate and remedy specific instances ofdiscrimination, deprived countless fanners of desperately needed credit and payments under various aid program s, with the result that many farmers suffered severe financial losses and even, in many cases, lost title to their fanns. See, M., id. at 7-34 (summarizing the damages claimed by the named plaintiffs); see generally Pigford v. Glickman. 185 F.R.D. 82. 86-89 (D.D.C. 1999).
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The plaintiffs thus alleged that the USDA had committed and then exacerbated a vast array of civil rights violations over a period spanning nearly twenty years. Their claims, though broad in scope, were no exaggeration. The USDA itself, in a report commissioned by Secretary Glickman at the behest of then-President Clinton, noted that the "USDA's painful history of individual and class action lawsuits, court orders, media exposes, numerous Congressional hearings, and reports depicts the Department as a stubborn bureaucracy that refuses to provide equal opportunity for all as the law requires." USDA CIVIL RIGHTS ACTION TEAM, CIVIL RIGHTS AT THE UNITED STATES DEPARTMENT OF AGRICULTURE 6 (1997).
Congress acknowledged the scope of the civil rights problems plaguing the USDA by giving new life to thousands of claims of past discrimination by the agency. Claims alleging violations of ECOA typically have a short life; they must be brought within two years of the
occurrence of the statutory violations in question. See 15 U.S.c. § 1691 e(f). In 1998 Congress
eliminated that restriction on ECOA claims against the USDA, creating a new statute of limitations for complaints alleging ECOA violations in the administration of various farm-related benefit programs. See PUB. L. No. 105-277, § 741,112 STAT. 2681, 2681-3-1 (1998). Such complaints could be brought at any time within two years of Congress' enactment of the new statute of limitations, so long as (I) the allegations underlying those complaints had previously been presented to the USDA before July I, 1997, and (2) the ECOA violations alleged had
occurred between January I, 1981, and December 31, 1996. Id. § 741(e). Congress' action thus
had the effect of opening the courthouse doors to large numbers of old claims, including many subsequently brought in Pigford L
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In light of Congress' 1998 amendments to the statute of limitations applicable to ECOA claims, this Court ultimately certified a plaintiffs' class in Pigford under Rule 23(b)(3) of the Federal Rules of Civil Procedure that was composed of
[a]1I African American farmers who (1) farmed, or attempted to farm, between January I, 1981 and December 31, 1996; (2) applied to the (USDA) during that time period for participation in a federal fann credit or benefit program and who believed that they were discriminated against on the basis ofrace in USDA's response to that application; and (3) filed a discrimination complaint on or before July I, 1997, regarding USDA's treatment of such farm credit or benefit application.
Pigford v. Glickman, t85 F.R.D. at 92. Rather than proceeding to trial on the claims of the plaintiffs' class members, class counsel and the USDA negotiated a settlement, which was approved by the Court and memorial ized in a consent decree filed on April 14, 1999. That consent decree did not provide for the automatic payment of damages to any plaintiff. Instead, it established a non-judicial mechanism by which each class member would have an opportunity to demonstrate that he or she had been the victim of past discrimination by the USDA and therefore was entitled to compensatory damages. Potential class members were not required to participate in that alternative claims resolution process, however; those African-American fanners who wished to pursue their ECOA claims against the USDA in court were pennitted to opt out of the Pigford plaintiffs' class by submitting an opt-out request within 120 days of the entry of the
consent decree. Pigford v. Glickman, Civil Action No. 97-1978, Consent Decree ~ 5(b)-(f) (D.D.C. Apr. 14, 1999) ("Consent Decree"); ~ also Pigfo rd v. Glickman, 185 F.R.D. at 95-96.
For those who did not opt out of the plaintiffs' class, the Pigford consent decree created a distinctive process for resolving class members' claims against the USDA. First, any
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individual seeking an award under the consent decree was required to submit to a neutral "Facilitator," the Poorman-Douglas Corporation (now Epiq Systems, Inc.), evidence that he or she was in fact a member ofthe class. See Consent Decree ~ 2(b). Next, if the Facilitator determined that a given claimant was a member of the class, the claimant was permitted, at his or her election, to proceed along one of two "tracks" for determining the merits of the claim. Id. ~ 5(f). "Track A" allowed a claimant to prevail by presenting "substantial evidence" of discrimination to a neutral, third-party "Adjudicator." Id. 9. The requirement of "substantial evidence" - defined as "such relevant evidence as ... a reasonable person might accept as adequate to support a conclusion after taking into accOlmt other evidence ... that fairly detracts
from that conclusion," id. 1 1(l) - represents a less stringent evidentiary standard than the more
common preponderance of the evidence standard. Still, prevailing on a Track A claim in Pigford was not easy, largely because the claimant was required to demonstrate that he or she had made a request for USDA program benefits that yielded a less favorable result than a request or requests made by "specifically identified, similarly situated white farmers." ld. ~ 9(a)(i)(C); see Pigford v. Glickman, 127 F. Supp. 2d 35, 39 (D.D.C. 2001) (discussing the difficulty of satisfying this requirement). Nevertheless, because claimants proceeding along this track were not required to prove their claims by a preponderance of the evidence, their potential recovery was limited: with respect to monetary compensation, a successful Track A claimant was entitled only to liquidated damages in the amount of $50,000, plus forgiveness of certain types of debt owed to the USDA and a payment to offset federal taxes owed on other portions of the award. See Pigford v. Glickman, 185 F.R.D. at 97.
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The second form of claim resolution created by the consent decree. known as "Track B," also involved a streamlined process of dispute resolution. Track B claims were to be heard by another third-party neutral , the "Arbitrator," who could receive written testimony and documentation as evidence but would conduct only a one-day mini-trial of each plaintiff' s claims. See Pigford v. Glickman, 185 F.R.D. at 97. Claimants choosing Track B, unlike those proceeding along Track A, were required to prove their claims by a preponderance of the evidence, rather than the more lenient substantial evidence standard, but, if successful, they were awarded the full amount of damages necessary to compensate them for their losses. ld.
Pigford class members were not given an unlimited amount of time in which to submit their claims and supporting documentation to the Facilitator. Under the terms of the consent decree, all claims packages had to be postmarked on or before October 12, 1999. Consent Decree 5(c). Paragraph 5(g) of the consent decree provided that if a claims package was not postmarked within that period of time, the claimant could pursue relief under the decree only by receiving permission from the Arbitrator. Consent Decree 5(g).1 The claimant could
receive such permiss ion, however, only if he or she demonstrated that "his failure to submit a timely claim was due to extraordinary circumstances beyond his control." lQ. Furthermore, there
was also a time limit on the period during which late claimants could submit petitions under Paragraph 5(g); by order of the Court, those petitions we re to be postmarked no later than
, The consent decree originally provided that the Court would render decisions on petitions for pennission to submit a late claims package lUlder Paragraph 5(g), but the Court subsequently delegated that authority to the Arbitrator. ~ Pigford v, Glickman, Civil Action No. 97-1978, Order, at 2 (D.D.C. Dec. 20,1999).
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January 30, 2000. Pigford v. Glickman, Civil Action No. 97-1978, Order, at 2 (D.D.C. Dec. 20, 1999).
Implementation of all of these provisions of the consent decree was to be overseen by the "Monitor," another independent, neutral third party whose responsibilities were delineated by the decree itself. See Consent Decree ~ 12. The Monitor was responsible for (1) making periodic written reports on the good faith implementation of the consent decree; (2) attempting to resolve any problems that any class member may have with the consent decree; and (3) being available to class members and the public through a toll-free number to provide information about the consent decree and the claims process and to facilitate the lodging of any consent decree complaints and to expedite their resolution. Id. ~ 12(b). While there was no appellate review of the decisions of the Arbitrator, the Adjudicator, and the Facilitator, the Monitor was authorized to examine them for "clear and manifest error" in the screening, adjudication, or arbitration of the claim that has resulted or is likely to result in "a fundamental miscarriage of justice." Id. ~ 12(b)(iii). On a petition for review ofa decision granting or denying a claim submitted in Track A, the Monitor was pennitted within her discretion to consider new evidence - documentation not previously submitted to the Adjudicator - if she found that "such materials address[ed] a potential flaw or mistake in the claims process that in the Monitor's opinion would result in a fundamental miscarriage ofjustice if left unaddressed." Pigford v. Glickman, Civil Action No. 97-1978, Order of Reference ~ 8(e)(i) (D.D.C. Apr. 4, 2000).
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2. Results of the Consent Decree's Claim Resolution Process As of December 31, 2010, more than 22,700 completed claim packages had been submit1ed by individuals eligible to pursue relief under the terms of the consent decree. Pigford v. Glickman. Civil Action No. 97-1978. Monitor's Report Regarding Implementation of the Consent Decree for the Period of January I, 2010, through December 31, 2010, at 7 (D. D.C. May 27, 201\) (''20 I0 Monitor Report"). Of those eligible claimants, approximately 99% elected to pursue Track A relief, while 170 claimants proceeded to Track 8 arbitration. Id. at 10. Over one billion dollars has been awarded to the approximately 16,000 successful claimants in the form of direct payments, loan forgiveness, and tax relief. Id. at 10, 19-20. Although the number of eligible claimants who submit1ed timely claims under the consent decree may seem staggering, that figure is dwarfed by the num.ber of individuals who have sought to submit late claims. As of September 15, 2000, the court-set deadline by which late claimants were to request permission to file late claims under Paragraph 5(g) of the consent decree, more than 61,000 individuals had petitioned the Arbitrator for leave to submit untimely claim packages. 2010 Monitor Report at 5. These "late filers" were later joined by an as-yet uncertain number of "late-late filers" - individuals who filed Paragraph 5(g) petitions with the Arbitrator after September 15,2000. See Mot. to Stay at 1-2 (suggesting that the number of late-late filers may be as high as 25,000). In light of this Court's order that such petitions should be postmarked by September 15, 2000, the Arbitrator did not consider any petitions postmarked after that date. See 2010 Monitor Report at 4-5. Instead, in accordance with the dictates of Paragraph 5(g), he reviewed the 61,252 timely petitions to determine whether each petitioner'S failure to file a claim
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Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 10 of 70
package within the prescribed timeframe resulted from "extraordinary circumstances beyond [the petitioner's] control." ld. Those petitioners who ascribed their failure to submit timely claims to such uncontrollable circumstances as ill health or the ravages of Hurricane Floyd were given permission to complete late-claim packages. Id . at 4. That pennission was denied to all those who explained that they had failed to complete timely claim packages because they had only recently learned of the Pigford lawsuit or the consent decree. !Q. Ultimately, only 2,585 late filers - 4% of the total number - were permitted to pursue relief under the consent decree. IQ. at 5.
B. The 2008 Farm Bill In 2008, after extensive hearings on the Pigford case and the consent decree. see, ~, "Notice" Provision in the PigfOrd v. Glickman Consent Decree: Hearing Before the Subcomm. on the Constitution ofthe H. Comm. on the Judiciary, I I8th Congo (2004), Congress resurrected the claims of those who had unsuccessfully petitioned the Arbitrator for permission to submit late claim packages. Under the Food, Conservation, and Energy Act of2008 ("2008 Fann Bill"), "[a1ny Pigford claimant who has not previously obtained a determination on the merits of a Pigford claim may. in a civil action brought in the United States District Court for the
District of Columbia, obtain that detennination." PUB. L. 110-234, § 14012(b), 122 STAT. 923, 1448 (2008). A "Pigford claim" is "a discrimination complaint" as defined by the Pigford
consent decree, ill. § 14012(a)(3):
a commun ication from a class member directly to USDA, or to a member of Congress, the White House, or a state, local or federal official who forwarded the class member's communication to USDA, asserting that USDA had discriminated against the class
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member on the basis of race in connection with a federaJ fann credit transaction or benefit application. Consent Decree I(h). To be a "Pigford claim" for the purposes of the statute, such a discrimination complaint must be "documented under section 5(b) of the consent decree" - the portion of the decree that li sts the required elements ofa complete claim package. 2008 Fann Bill § 1401 2(a)(3). An individual qualifies as a "Pigford claimant" wi thin the meaning of the 2008 Fann Bill only if that person "previously submitted a late-filing request under section 5(g) of the consent decree." 2008 Fann Bill § 14012(a)(4). Notably, the statute does not specify the time during which, to qualify as a "Pigford claimant," an individual must have submitted a 5(g) late-filing request, although the phrasing of the statute makes clear that the request must have
been made prior to the effective date of the 2008 Fann Bill. See ill. (late-filing request must have
been "previously submitted"). For those individuals who meet its eligibility requirements, the 2008 Fann Bill
provides for fonns of adjudication and relief that are similar, but not identical, to those created by the Pigford I consent decree. Claimants under the 2008 Fann Bill may elect to pursue "expedited resolution" of their claims by means ofa process that mirrors Track A. ~ PUB. L. 110-234, § 1401 2(1). If claimants choose to participate in that expedited process, they are entitled to "liquidated damages of $50,000," loan forgiveness, and tax reHefso long as they can prove their
claims by substantial evidence, "as defmed in section 1(1) of the consent decree." IQ. Under the
2008 Fann Bill, however, "the court" is to "decide the case based on a review of documents"
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submitted by the claimant and the USDA; the statute makes no mention of any third-party neutral
that would be analogous to the consent decree's Adjudicator. k!. § 14012(I)(I)(B).
In addition, the 2008 Farm Bill, like the consent decree, allows claimants to pursue a more complete adjudication of their claims and provides for the payment of "actual damages" to claimants who prevail in such an adjudication by proving their claims by a preponderance of the evidence. PUB. L. 110-234, § 14012(g). But again, the court is authorized to preside over those adjudications, and no mention is made of an Arbitrator. See id. § 14012(b), (g). Furthermore, the 2008 Farm Bill does not streamline those adjudications in the way that the consent decree did for Track B proceedings. While the consent decree limited Track B hearings to one day and permitted only limited discovery, the 2008 Farm Bill contains no such express restrictions.
In contrast to the consent decree, which did not set a cap on the amount of damages recoverable by the Pigford class, the Farm Bill originally provided that "[t]he total amount of payments and debt relief pursuant to actions commenced under [this section] shall not exceed $100,000,000." 2008 Farm Bill § 14012(c)(2). When 75% of that $100 million had been "depleted," the Secretary of the USDA was to notify the House and Senate Judiciary Committees. Id. § 140120)(2). The Secretary was also directed to report on the "status of available funds" under the statute every six months. Id. § 1401 20)(1).
The Farm Bill does not purport to create an open-ended right for individuals to bring late Pigford claims. The right to file a complaint under the statute "terminate[dJ" two years after the law's enactment, on June 18,20 10. PUB. L. 110-234, § 14012(k). All complaints based
on Section 1401 2 of the Farm Bill were to be filed in this Court. ~ ill. § 14012(b).
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C. The Current Lawsuit and the Claims Resolution Act 0/2010
Approximately 40,000 individuals have filed complaints in this Court pursuant to Section 14012 of the 2008 Farm Bill. Mot. for Prelim. Approval at 48. They did not file individual complaints. Instead, plaintiffs brought suit in groups, with large numbers of individuals aggregating their claims and summarizing them all in a single complaint. See,~, Agee v. Schafer, Civil Action No. 08-0882, Complaint at 1-24 (D. D.C. May 23, 2008) (listing plaintiffs). Twenty-three such complaints alleging claims under the 2008 Farm Bill (hereinafter "Pigford II" actions or cases), most of them aggregating large numbers of plaintiffs in the manner described, were filed in this Court between May of2008 and June of2010 by plaintiffs represented by a wide array of counsel. Recognizing the substantial case management difficulties posed by the Pigford II actions, the Court stayed each individual lawsuit and consolidated all 23 actions into one miscellaneous case in order to permit the various parties, their counsel, and the Court to determine the best way to proceed in this matter. See,~, In re Black Farmers Discrimination Litig., Misc. No. 08-0511, Order (D.D.C. Aug. 8, 2008) (consolidating the first eight cases brought pursuant to Section 14012).
Beginning in the spring of 2009, counsel for the plaintiffs named in several Pigford II complaints initiated settlement negotiations with counsel for the USDA and the United States Department of Justice. See Mot. for Prelim. Approval, Ex. 13 (Declaration of Andrew H. Marks) ("Marks Decl.") 1/2. In February 2010, after extensive negotiations, the defendant and certain plaintiffs executed the first version of a settlement agreement that has since been signed by counsel for every plaintiff named in a pending Pigford II complaint except for those in five
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Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 14 of 70
cases, Civil Action Nos. 09-1019,10-0465,10-0737,10-0801, and 10-0839. See Mot. for Prelim. Approval, Ex. 2 (Settlement Agreement) ("SA") , II.HH. Secretary of Agriculture Thomas Vilsack and Attorney General Eric Holder announced the settlement on February 18, 20 I O. See Press Release, USDA, USDA and Department of Justice Announce Historic Settlement in Lawsuit by Black Farmers Claiming Discrimination by USDA (Feb. 18,2010), available at http://www.usda,gov/wpsfportaUusdaiusdahome?contentidonly= true&contentid=201O/02/0072.xml. As the Attorney General explained, the settlement provided that a total of $1.25 billion would be made available for the resolution of claims brought pursuant to Section 14012 of the 2008 Farm BilI- but at the time the settlement was executed, the only funds appropriated by Congress for that purpose were the $100 million set aside by the Fann Bill itself. See id. The settlement's continuing validity was contingent upon the appropriation by Congress of an additional $1.15 billion. Id.
Beginning in March of2010, members of Congress introduced legislation intended to fimd the settlement agreement reached by the USDA and the Moving Plaintiffs. See S. Amend. 3407 to H.R. 4213, III th Congo (20 I0) (failed proposed amendment that would have appropriated $1.15 billion "to the Department of Agriculture ... to carry out the tenns of a Settlement Agreement ... executed in In re Black Fanners Discrimination Litigation"), reprinted in 156 Congo Rec. SI189 (daily ed. Mar. 4, 2010). Several such attempts to fund the settlement agreement were defeated in the Senate during the spring, summer, and fall of 20 IO. See TADLOCK COWAN AND JODY FEDER, CONGo RESEARCH SERV., RS 20430, THE PIGFORD CASES: USDA SETTLEMENT OF DISCRIMINATION SUITS BY BLACK FARMERS 12 (2011).
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On November 30, 2010, Congress passed the Claims Resolution Act of201 0, which was signed into law by President Barack Obama on December 8, 2010. See PUB. L. 111-291,124 STAT. 3064. The Act "appropriated to the Secretary of Agriculture $1,150,000,000, to remain available until expended, to carry out the terms of the Settlement Agreement [in In re Black Farmers Discrimination Litigation 1 if the Settlement Agreement is approved by a court order that is or becomes final and nonappealable[,]" Claims Resolution Act § 20 I(b). "Settlement Agreement" is specifically defined by the statute to refer to "the settlement agreement dated February 18,2010 (including any modifications agreed to by the parties and approved by the court under that agreement) between certain plaintiffs ... and the [USDA] ... in In re Black Farmers Discrimination Litigation, Misc. No. 08-mc-0511." Id. § 201 (a)(1).
In addition to funding the settlement agreement reached by the defendant and the Moving Plaintiffs, the Claims Resolution Act amended Section 14012 of the 2008 Farm Bill. Those amendments included the removal of two provisions of Section 14012 that would have required the USDA to (1) supply each Pigford II plaintiff with reports on USDA loans and other benefits awarded in the plaintiff's county of residence, and (2) make progress reports to Congress regarding the depletion of the $100 million made available by Section 14012 for the payment of awards in Pigford II. See Claims Resolution Act § 201(1)(2), (5) (striking subsections 14012(e) and G) of the 2008 Farm Bill), It also makes clear that the claims under the settlement agreement should be resolved by a Neutral Adjudicator rather than by the Court itself. See Claims Resolution Act § 201 (b), (g)(1).
On March 30, 20 II, the Moving Plaintiffs requested preliminary certification of a plaintiffs' class and approval of the settlement agreement first executed on February 18,2010,
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See Mot. for Prelim. Approval. On April 25, 2011, the Court sent counsel for the Moving Plaintiffs a letter in which it communicated several questions and concerns raised by the proposed settlement agreement. See Docket No. 168. Those questions and concerns were addressed by the Moving Plaintiffs in a written response dated May II, 2011. See Docket No. l71-1. The Court granted preliminary class certification and preliminary approval of the settlement on May 13, 20 II, set a deadline for the filing of written objections to the settlement, and scheduled a Fairness Hearing for September I, 2011.
After preliminary approval of the settlement agreement, the Moving Plaintiffs initiated a comprehensive program intended to provide notice of the proposed settlement to putative class members. See Mot. for Final Approval, Ex. A (Declaration of Katherine Kinsella). Kinsella Media, LLC, the finn engaged by the Moving Plaintiffs to effect notice, arranged for the mailing of packets describing the settlement agreement in detail directly to all individuals who, according to the records of the Pigford I Facilitator, made any written request to participate in the Pigford I claims resolution process between October of 1999 and June 18, 2008. See id. ~ 7. Notice was also broadly disseminated through radio, television, print, and online advertising, A 60-second advertisement announcing the proposed settlement aired on two national radio stations with large African-American audiences and 52 local radio stations located in areas with high concentrations of African-American farmers. See id. 13. Written announcements appeared once in American Profile, a newspaper supplement available in many rural counties; once in Jet magazine; once in 46 daily newspapers that circulate in areas where high concentrations of putative class members reside; twice in numerous newspapers targeting African-Americans; once or twice in almost 200 community newspapers; and at least once in 20 trade publications geared
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toward fanners and ranchers. See id. ~~ 17,23-24. Online announcements appeared on a variety
of websites with large numbers of African-American visitors, see id. 1 22, and directed Internet
users to a website, www.blackfarmercase.com. providing detailed information about this case and the proposed settlement. See id. , 21. Press releases announcing details of the settlement were circulated and widely reported on by various media outlets. See id. ~~ 27-29.
After that notice program was implemented, as of August 5, 2011, interested persons had made more than 62,000 requests for the claim packages that must be completed by any individual wishing to participate in the claims resolution process that would be created by the proposed settlement agreement. Mot. for Final Approval, Ex. A, 32. Nearly 150,000 calls had been placed to a toll-free telephone number established to provide information about the settlement agreement. Id. Almost 70,000 visitors have viewed the website announcing the settlement. Id. In spite of the overwhelming degree of interest indicated by these numbers, however, the Court received only a handful of written objections from parties who may be members of the putative plaintiffs' class. The Court also received several written comments or objections from organizations or individuals that either do not appear to be or to represent potential class members, or have made no attempt to establish that they are class members. See In re Black Fanners Discrimination Litig.• Misc. No. 08-0511, Memorandum Opinion and Order Regarding Fairness Hearing (D.D.C. Aug. 26, 2011) (listing objections).
The Court held an all-day Fairness Hearing on September I, 2011. Because so few objections by putative class members had been received, and because the Court is aware that this litigation is a subject of intense interest among many African-American farmers and fanning organizations, the Court allowed any individua1 who had experience with or an established
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interest in Pigford I or communities of African-American farmers to offer comments at the hearing. Although few of those who spoke demonstrated that they are putative plaintiffs' class members and so have standing to object to the settlement agreement, the Court appreciates and has considered their comments.
II. CLASS CERTIFICATION The Moving Plaintiffs seek final certification of a settlement class consisting of: All individuals: (1) who submitted Late-Filing Requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree.
SA 11 lIlA. A "Late-Filing Request" is dermed as "a written request to the Court, the Pigford
Facilitator, the Pigford Monitor, the Pigford Adjudicator, or the Pigford Arbitrator seeking to participate in the claims resolution processes in the Pigford Consent Decree," Id. 11 IlT. The dates specified in the class definition - October 13, 1999, and June 18,2008 - correspond, respectively, to (I) the day after the deadline for the filing of a timely claim under the Pigford I consent decree, and (2) the effective date of the 2008 Fann Bill. The remainder of the class
definition tracks the language of Section 14012. See 2008 Farm Bill § 140 I2(a)-(b).
As the parties seeking class certification, the Moving Plaintiffs bear the burden of demonstrating that the proposed class meets the requirements of Rule 23 of the Federal Rules of Civil Procedure. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). The parties must show that all four prerequisites of Rule 23(a) have been met and that the proposed class falls within at least one of the three categories delineated by Rule 23(b). See FED. R. CIV. P. 23(b);
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Richards v. Pelta Air Lines. Inc., 453 FJd 525, 529 (D.C. Cir. 2006). If the Moving Plaintiffs
are able to satisfy those requirements, then the Court may decide, in its discretion, whether a class should be certified. ~ Garcia v. Johanns, 444 FJd 625, 631 (P.C. Cir. 2006) (citing
McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (P.c. Cir. 1984» .
The Moving Plaintiffs' request for class certification is supported by the defendant. ~ Def. 's Certification Resp. The only real opposition to the request comes from a group of ten potential class members represented by attorney Precious Martin ('"the Martin
Objectors"). ~ Martin Obj. at I-2. According to those plaintiffs, the assets available for the
payment of awards in this case do not truly qualify as a "limited fund," and therefore certification
ofa class pursuant to Rule 23(bXIXB) of the Federal Rules of Civil Procedure is improper. Id. at 14- I 7. Furthermore, the Martin Objectors assert that the class proposed by the Moving Plaintiffs does not meet the commonality requirement of Rule 23(a)(2). ~ Martin Reply at 2-3.
Because the matters in dispute all relate to Rule 23(b)(I)(B) and Rule 23(a)(2), the Court first addresses those provisions together before moving on to consider the requirements of Rule
23(a)(I), (3), and (4).
A. ReqUirements/or a Limited Fund Class Action Under Rule 23(bXI)(B) of the Federal Rules of Civil Procedure, a plaintiffs' class meeting the requirements of Rule 23(a) may be certified if prosecuting separate actions by or against individual class members would create a ri sk of . .. adjudications with respect to individual class members that, as a practical matter. would be disposi tive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.
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FED. R. C1v. P. 23(b)(l)(B). The Moving Plaintiffs request certification under Rule 23(b)(1)(B) on the ground that this case involves the aggregation of "'claims . . . made by numerous persons
u.s. against a fund insuffic ient to satisfy all claims.'" Ortiz v. Fibreboard Com" 527 8 15, 834
(1999) (citation omitted). In such a case every award made to one claimant reduces the amount of funds avai lable to other claimants until. in the absence of equitable management of the fund, some claimants are able to obtain full satisfaction of their claims, while others are left with no recovery at all . Thus are "adjudications with respect to individual class members . .. dispositive of the interests of the other members" in such a case. FED. R. CIV. P. 23(b)(I)(B); see generally
u.s. Ortiz v. Fibreboard Com., 527 at 834-37.
To qualify for class certification on such a limited fund rationale, the Moving Plaintiffs must show that the fund and the proposed class in question meet three criteria. See
u.s. Ortiz v. Fibreboard Com., 527 at 838. First, "the totals of the aggregated liquidated claims
and the fund avai lable for satisfying them, set definitely at their maximums, demonstrate the inadequacy of the fund to pay al l the claims." Id. Next, " the whole of the inadequate fund" must be dedicated " to the overwhelming claims." Id. at 839. Final ly, al l claimants to the fund who are "identified by a common theory of recovery [must be] treated equitably among themselves." Id . All three requirements are met in this case.
I. Inadequacy of the Fund The 2008 Fann Bill initially limited the amount of money avai lable for the
payment of damages to Pigford II plaintiffs to $ 100 million. PUB. L. 110-234, § 140 12(c)(2). The Claims Reso lution Act of2010 increased that pool of assets by S1.15 billion, to a total of
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$1.25 billion, on Ihe condition thai the proposed settlemenl agreemenl be approved. ~ PUB. L. 111-291, § 201(b). Taken oul of coniexI, thai fund mighl seem vas!. When considered in lighl of the Pigford I proceedings, however, it appears woefully insufficient to fund the judgments or to sati sfy the meritorious claims likely to result from this litigation. Of the roughly 22,700 individuals who pursued claims under the Consent Decree, 99"10 elected to proceed along Track A and receive liquidated damages if they prevailed on their claims. 2010 Monitor Report at 10. Roughly 69% of those Track A claimants, or 15,645, succeeded in proving their entitlement to relief. Id . Even Ihough each of lhose successful Track A claimanls was enlilled only 10 $50,000 plus debl and lax relief (amounling 10 $ 12,500), Ihe aggregale amounl of damages paid 10 Ihose claimants amounted to morc than 51 billion. lQ. at 19.
More than 40,000 plaintiffs have already filed complaints in this case. Tens of thousands more may be entitled to participate in the litigation. ~ ~ at 17. The SI.25
billion approprialed by Congress in Ihe 2008 Farm Bill and Ihe Claims Resolulion Acl would
cover Track A cash damages and tax relief - a payment amounting to $62,500, see Pub. L. No. 11 0-234, § 140 12(e), as amended by Pub. L. 111-29 1, § 20 1(f) ("Am. 2008 Farm Bill") - for only 20,000 successful claimants. That simple calcul ation does not take into account the facts that some claimant'S will also win debt relief, that others will pursue the more generous monetary reliefafforded upon success in Track B. and that the costs ofadministering the claims resolution process will inevitably run into the tens of millions of dollars, further reducing the funds available for awards. Even if Pigford IT class members prevail on their cl aims at far lower rates than their Pigford I predecessors - and there is no reason to believe that they would - it is
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apparent that the avai lable $ 1.25 billion fund is inadequate to pay for the awards of all successful claimants.
No party to this litigation - and none of those who fil ed objections or sJX>ke at the Fairness Hearing - disputes that the funds made available by Congress in the 2008 Fann Bill and the Claims Resolution Act are insufficient to compensate the Pigford Il plaintiffs. Instead, the Martin Obj ectors contend that the fund established by the 2008 Fartn Bill and the Claims Resolution Act is not "set definitely at [its] maximum." ~ Martin Obj. at 14-17; Martin Reply at 6-7. All of the arguments marshaled by the Martin Obj ectors in support of thi s assertion, however, are unpersuasive.
The Martin Objectors claim first that no limited fund can exist in this case because the defendant has engineered the limitation on the fund, in contravention of the Supreme Court ' s ruling in Ortiz that a fund does not qualify as "limited" for the purposes of a Rule 23(b)( 1)(B) analysis if it is capped only "by the agreement of the parties." Ortiz v. Fibreboard ~,527 U.S. at 848. This argwnent lacks merit for two reasons. First, the defendant in this case is the USDA. As the text of the 2008 Fann Bill and the Claims Resolution Act makes clear, the USDA did not impose the limitation on the fund at issue here - Congress did. Second, even if one we re to ignore the fact that the USDA is a separate juridical entity from Congress, and so to imagine that the defendant here is simply equivalent to the United States government, the Martin Objectors ignore the fact that the government is that unique defendant which has the legal authority to define the extent of its own liability, unlike the private defendants in Ortiz. See id. at 850 (limited fund would compri se defendant corporation' s entire equity and insurance assets). There is nothing improper or illegal about Congress' limitation of the plaintiffs' possible
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recovery in this case to $1.25 billion, if the proposed settlement is approved, or to $100 million, if it is not.
Next, the Martin Objectors contend that there is no limited fund in this case because the Claims Resolution Act is unconstitutional, or because it "does not apply retroactively." Martin Reply at 6~8. While creative, these arguments are bizarre and frivolous. According to the Martin Objectors, the Claims Resolution Act violates the separation of powers between branches of government because it represents an attempt by Congress "to coerce the class and the Court into accepting th[e] proposed settlement." Id. at 6. Congress has not overstepped its bounds with respect to this case. Although Congress may lack authority to direct a court to reach a particular result in a given case without amending substantive law, see Robertson v. Seattle Audubon Soc'y. 503 U.S. 429, 436, 441 (I 992), Congress certainly has not done so here. Indeed, the Claims Resolution Act makes clear that Congress has funded the proposed settlement agreement only if this Court approves the settlement in a final order. But nothing in the statute presumes to instruct the Court how or whether to decide if the settlement should be approved.
Nor is the Claims Resolution Act impermissibly retroactive. The Martin Objectors contend that the Act "is a conditional attempt to limit the funds of this case retroactively, contingent upon the class and this Court's acceptance of the settlement." Martin Reply at 213. That contention is silly. There is nothing retroactive about the limitation on funds in this case; the 2008 Fann Bill limited the available funds first, and it did so to a much lower number, $100 million, than the Claims Resolution Act. Furthermore, contrary to the conclusory assertions of the Martin Objectors, the Claims Resolution Act did not "'attach[] new legal
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consequences to events completed before its enactment.'" Id. at 8 (quoting Landgrafv. US! Film Prods., 511 U.S. 244, 270 (1994)). The Act is a valid statute, one that makes available for the payment of claims in this case limited funds that may be combined with the even more limited funds appropriated by the 2008 Fann Bill. Since there is no reason to believe that any further funds are or will be available for the payment of Pigford II claims, and since the available funds are inadequate to pay all claims fully, the first Ortiz requirement is satisfied.
2. Dedication of the Fund to Class Claims To qualifY as a limited fund justifYing the certification of a plaintiffs' class, "the whole of the inadequate fund" available for the payment ofjudgments must be dedicated "to the overwhelming claims." Ortiz v. Fibreboard Com., 527 U.S. at 839. That criterion is easily met in this case. The 2008 Fann Bill and the Claims Resolution Act appropriate the total of $1.25 billion specifically for use in the resolution and payment of Pigford II claims. See Claims Resolution Act § 201(b); Am. 2008 Farm Bill § 201(1).
3. Equitable Distribution of the Fund In order for a class to be certified on a limited fund theory, "the class [must] comprise everyone who might state a claim on a single or repeated set of facts, invoking a common theory ofrecovery, to be satisfied from the limited fund as the source of payment." Ortiz v. Fibreboard Corn., 527 U.S. at 839. Every plaintiff in this case proceeds on the theory of recovery spelled out in the 2008 Fann Bill, and every prevailing plaintiff will be paid out of the limited fund created by Congress. Furthermore, the proposed class would include every person who could potentially be eligible for relief under Section 14012, encompassing every individual
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who unsuccessfully petitioned for leave to file a late Pigford claim under Paragraph 5(g) of the consent decree. With all potential plaintiffs gathered into one class, the Court will be able to ensure that, even given an available fund insufficient to pay the full amount of all judgments, similarly situated plaintiffs will ultimately receive the same awards, thus satisfying the requirement that all claimants to the fund who are "identified by a common theory of recovery [will be] treated equitably among themselves." Ortiz v. Fibreboard Com., 527 U.S. at 839. As explained below, see infra at 48-49, the proposed settlement agreement provides for an equitable division of the common fund among members of the plaintiffs' class.
4. Commonality As the foregoing analysis indicates, the proposed plaintiffs' class meets the requirements identified in Ortiz as prerequisites for the formation of a Rule 23(b)(l )(B) class. For similar reasons, the proposed class also meets the requirement of Rule 23(a) of the Federal Rules of Civil Procedure that there be "questions of law or fact common to the class." FED. R. Cry. P. 23(a)(2). '''What matters to class certification,'" however, "'is not the raising of common "questions" - even in droves - but, rather the capacity of a c1asswide proceeding to generate common answers apt to drive the resolution of the litigation.'" Wal-Mart Stores. Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REv. 97,132 (2009)) (emphasis in original). In other words, the determination of a disputed question or questions that are common to the various class members will "resolve an issue that is central to the validity of each one of the claims in one stroke." Id.
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"Implicit in a finding that an action satisfi es the requirements of Rule 23(b)( 1) is the decision that there are questions oflaw or fact shared by the persons affected." 1 WILLIAM B. R UBENSTEIN, ALBA CONTE & H ERBERT B. NEWBERG, NEWBERG ON C LASS ACTIONS § 3:10 (4th ed. 2002). The logic of that principle is evident upon a brief examination of the factual questions that must be answered before the common fund may be divided equitably among similarly situated plainti ffs: How many plaintiffs will prevail? What amount of damages will each prevailing class member be entitled to recover? And how, in the likely event that total recoverable damages exceed available funds, will each award be reduced? These questions are "central to the validity" of every single claim that could be brought in thi s matter because they will determine the extent to which any prevailing claimant is entitled to relief.
The Martin Objectors dismiss these common questions as " related solely to the issue of how potential class members, and consequently, class counsel, might get paid." Martin Reply at 3. But they fail to explain why that distinction matters. The sole function of the 2008 Farm Bill is to allow those farmers who were the subject of discrimination by the US DA and who meet other eligibility requirements to "get paid" - i.e., be compensated fo r their injuries. Determining the amount of compensation that a given plaintiff may receive is central to the claims made in this lawsuit, and that determination cannot be made without answering the "common questions" identified above. The Martin Objectors have identified no way in which those questions could be answered in the absence ofa Rule 23(b)(1 )(B) class, Certification ofa class to permit the proper determination of common questions is thus not only appropri ate, but necessary in this case.
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B. Other Requirements ojRule 23(0) In addition to the commonality requirement, Rule 23(a) conditions class certification upon a showing that the proposed class "is so numerous that joinder of all members is impracticable," FED. R. CIv. P. 23(a)( I); that "the claims ... of the representative parties are
typical of the claims ... of the class," ill. 23(a)(3); and that the named plaintiffs "will fairly and
adequately protect the interests of the class." ld . 23(a)(4). No party or objector has claimed that
the proposed class fails to meet any oftbose three requirements, and the Court finds that each is satisfied here.
l. Numerosity "Courts in this District have generally found that the numerosity requirement is satisfied and that joinder is impracticable where a proposed class has at least forty members."
Vista Healthplan, Inc, v. Warner Holdings Co, m, Ltd., 246 F.R.D. 349, 357 (D. D.C. 2007)
(listing cases); ~ also Cohen v, Chilcott, 522 F. Supp. 2d 105, 114 (D.D.C. 2007) (sarne). Roughly 40,000 plaintiffs have filed claims at this point in the Pigford II litigation, and thousands
more may follow. Those thousands of plaintiffs and potential class members are scattered throughout the country. ~ 2010 Monitor Report, App. 5 (showing the successful Pigford I claimants came from morc than forty states). Joining such a vast number of dispersed parties is
not practicable. See Pigford v, Glickman, 182 F.R.D. 341, 347-48 (D.D.C. 1998). The
numerosity requirement is satisfied.
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2. Typicality
The remaining requirements of Rule 23(a) identify "the desired qua1ifications of the representative parties" to a class action, FED. R. elV. P. 23, advisory committee's note (1966 amendment), that the "claims or defenses" of the representative parties be "typical" of the claims of the class, and that the representative parties "fairly and adequately protect the interests of the
class." FED. R. CIV. P. 23(a)(3)-(4). The typicality requirement " is ' intended to assess whether
the action can be efficiently maintained as a class action and whether the named plaintiffs have incentives that align with those of the absent class members SO as to assure that the absentees'
interests will be fairly represented. ", Pigford v. Glickman, 182 F.R.D. at 349 (quoting Baby Neal
for and by Kanter v. Casey. 43 F.3d 48, 57 (3d Cir. 1994)). In other words, " [t]he typicality prerequisite assures that the class representative[s] share[] the issues common to other class members." I RUBENSTEIN, CONTE & NEWBERG, NEWBERG ON CLASS ACTIONS § 3:13.
The three named plaintiffs proposed by the Moving Plaintiffs all share the classwide need for and interest in an equitable distribution of the limited fund available for damage awards. Taken together, the allegations advanced by these plaintiffs are appropriately representative of the fact patterns underlying the claims of other putative class members. Proposed named plaintiffs James Copeland and Marshallene McNeil both allege that they were denied USDA program benefits between January I , 1981, and December 31, 1996, as a result of
racial discrimination. See Am. Compi. 22 (alleging that " [b]etween 1990 and 1992, Mr. Copeland attempted to apply to USDA for an operating loan, but was told repeatedly that the USDA office had lost his applications'); id. ~ 26 (claiming that " [i]n 1982, Ms. McNeil went to
the [Fanners Home Administration] office in Camden, Alabama to request an operating loan, but
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· .. her loan application was denied" based on racial discrimination). The third named plaintiff proposed by the Moving Plaintiffs, Earl Moorer, proceeds not on his own behalf, but, like nwnerous other plaintiffs, as the heir of a family member - in his case, his father, JOM Moorer - who applied for and was denied USDA loan benefits repeatedly between 1981 and 1984 even as local white fanners received the benefits he was denied. See id. 24.
Mr. Copeland, Ms. McNeil, and John Moorer each complained to the USDA about racial discrimination at least once between January I, 1981 , and July I, 1997, but their complaints went unanswered. See Am. Compl. ,22,24, 26. Mr. Copeland and Earl Moorer, on behalf of the Estate of JOM Moorer, were both "late filers" in Pigford I; between October 13, 1999, and September 15, 2000, they petitioned under Paragraph 5(g) of the consent decree for the right to submit late claims, but their petitions were denied, and their claims went unadjudicated. See id. 123, 35. Ms. McNeil, on the other hand, is a "late-late filer." She submitted a 5(g) petition prior to the effective date of the 2008 Farm Bill, but after the deadline established by this Court for the timely submission of such petitions. See id. ~ 27.
Each of these proposed representative plaintiffs alleges the same core facts as all other potential class members: injury resulting from racia1 discrimination by the USDA, followed by complaints about that di scrimination that went unaddressed, and ultimately an unsuccessful and untimely anempt to join the claim resolution process establi shed in Pigford I. Since each of these plaintiffs has the same interest in ensuring equitable division of the available limited fund as do other putative class members, the Court finds the typicality requirement satisfied.
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3. Adequacy of Representation "The final element of Rule 23(a) necessitates an inquiry into the adequacy of representation, including the quality of class counsel, any disparity of interest between class representatives and members of the class, communication between class counsel and the class and the overall context of the litigation." Pigford v. Glickman, 182 F.R.D. at 350 (citing Twelve John Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997». The Court has already found the interests of the representative plaintiffs to be in alignment with those of other putative class members. It also finds that the representation afforded by class counsel is more than adequate. Counsel for the proposed plaintiffs' class are 42 attorneys associated with 20 different law finns. See Mot. for Final Approval, Ex. 2 ([Proposed] Final Approval Order and Judgment) 10. These attorneys serve a wide variety of geographical areas in which likely claimants reside, including Alabama, Arkansas, Florida, Mississippi, North Carolina, Pennsylvania, South Carolina, and Virginia. See id. Among them are several attorneys ~ including Henry Sanders, Fayarose Sanders, David Frantz, and Phillip L. Fraas ~ who were deeply involved in the litigation of class claims in Pigford I and are familiar with the sorts of factual, legal, and administrative issues that may arise in this case. Several members of class counsel have extensive experience in complex litigation in general and in class action litigation in particular. See, ~, Mot. for Prelim. Approval, Ex. 13 at 3 (professional accomplishments of co-lead counsel Andrew H. Marks). In short, the members of this group of counsel collectively offer class members highly relevant legal skill and experience.
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The overall context of this litigation confirms the Court's belief that class counsel

.,I

will provide adequate representation. Although this case, involving many separate legal

complaints and scores of attorneys, could have devolved into an endless series of squabbles

between rival attorneys, class counsel, representing the vast majority of plaintiffs who have filed

complaints under the 2008 Farm Bill, have managed to band together and to negotiate with the

defendant a single comprehensive settlement. Perceiving that late filers and late·late filers might

have adverse interests, see infra at 6 1·62, several class cOlmsel sought to ensure that the two

groups were represented by separate and independent attorneys. See Mot. to Withdraw at 3-4.

Despite the large number of attorneys designated as class counsel, the responses of counsel to the

Orders of this Court have been prompt, efficient, and well-coordinated. Based on the procedural

hi story of this matter, the Court concludes that proposed class counsel will provide more than

adequate representation to class members.

C. The Court's Conclusion on Certification
The Court is satisfied that the requirements of Rule 23 of the Federal Rules of Civil Procedure are fulfilled by the proposed plaintiffs' class. Furthermore, the Court cannot imagine how the claims of the thousands of putative class members could be resolved efficiently and fairly in the absence of class treatment. Accordingly, the Court will certify a plaintiffs' class pursuant to Rule 23(b)(l)(B) of the Federal Rules.

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III. PROVISIONS OF PROPOSED SETILEMENT AGREEMENT A. Overview o/the Claim Resolution Process
The proposed sett lement agreement maintains the two-track claim resolution process created in Pigford I and replicated in Section 14012 of the 2008 Farm Bill, but modifies some aspects of that process in light of the strictly limited funds available for the resolution and payment of cl aims. As in Pigford I, the agreement provides for the creation of two alternative form s of claim resolution, designated Track A and Track B. See SA V. Under Track A,
claimants must prove their claims by substantial evidence. the same evidentiary standard that was
mandated for Track A claims in the Pigford I consent decree. and the standard that is prescribed by Section 14012 of the 200S Fann Bill. Id. Those who prevail in Track A on a claim of discrimination in a credit program are entitled to a maximum of $50,000 in cash, forgiveness of certain categories of debt to the USDA. and tax relief equal to one-quarter of the combined value of awarded cash and debt relief. Id. Il.LL-NN.'
Those claimants who proceed along Track B must. as in Pigford I, prove their claims by a preponderance of the evidence. SA V. If they prevail, those Track B claimants are entitled to a maximum of their proven actual damages or $250,000, whichever is less. Id. Claim detenninations in both Track A and Track B will be made by a neutral third party, the "Track A Neutral" or the "Track B Neutral," and the detenninations of both neutrals are final and not subject to appeal. Id. V.A.S.
, Track A claimants who prevail on a claim of discrimination in a non-credit program are eligible for debt relief, tax relief, and maximum cash payments of $3,000. SA ~ V.
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No award will be paid to any claimant until after detenninations have been rendered on all claims - a process expected to last for approximately a year. Once all claims have been resolved, the cash value of awards payable to successful claimants will be compared to the value of available funds, consisting of the appropriated $1.25 billion, less administrative and
implementation costs and attorneys' fees. See SA 1i1i Y.E.4-5. If payable awards exceed
available funds, awards will be reduced ratably according to a predetennined procedure. First, if the total of Track 8 awards exceeds $100 million, those awards will be proportionately reduced until their total falls below the $100 million cap. Id.' V.E.5.a. [fthe total value of Track A and Track B awards still exceeds available funds, then the awards of late-late filers will be reduced, again on apro rata basis, by up to 30% of their value. Id.' V.E.5.b. If the total value of awards still, even after those reductions, exceeds available funds, then all awards will be proportionately reduced until their aggregate value is equal to or less than the amount of available funds. Id. , V.E.5.c. Awards will then be paid out to successful claimants. [d.~' V.E.8.
B. Method ofDetermining Claims The agreement' s provisions become operational only if this Court's final order
approving the settlement is either upheld on appeal or ceases to be subject to appeal. SA 1i II.L.
Once either of those two conditions is met, members of the plaintiffs' class will have 180 daysroughly six months - to submit their claims for resolution. Id.' 11.0. To do so, each claimant must submit to Epiq Systems, Inc. (the "Claims Administrator") a "Claim Package" that includes. among other docwnentation, the following: (1) a sworn declaration by the claimant in which he or she states, among other things, whether he or she submitted a late-filing request
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under Paragraph 5(g) of the Pigford I consent decree during the relevant time period, and whether he or she has received a determination on the merits of a claim in Pigford I, see id., Ex. C at 3; and (2) a sworn declaration by the claimant's counsel that "the claim is supported by existing law and the factual contentions have evidentiary support." Id. V.A. The claimant must also indicate at that time whether the claim is to be evaluated under Track A or Track B of the claim resolution structure. See id., Ex. C at 4. For those who choose Track A, that choice is finaL See id. Class counsel have committed to providing direct assistance to would-be claimants as they prepare their claim packages and decide whether to proceed along Track A or Track B. See Mot. for Prelim. Approval at 21.4
Once the claimant has submitted a timely and complete Claim Package to the Claims Administrator, the Claims Administrator will determine whether the claimant has established by a preponderance of the evidence that he or she is a member of the plaintiffs' class. SA ~ V.B.4. The Claims Administrator' s determination regarding class membership is final and not subject to review. Id. ~ V.B.s. If the Claims Administrator determines that a claimant has established class membership, and that claimant has elected to proceed along Track A, the Claim Package will be forwarded to the Track A Neutral for review and determination of the claim, Id. ~ V.B.6, The Claims Administrator will retain Track B Claim Packages until the close of the 180-day claim submission period. At that point, the Claims Administrator will notify all claimants who have elected to proceed along Track B of the number of other claimants who have

4

Exhibit C to the Settlement Agreement was the Claim Form claimants were to

submit. Following the Fairness Hearing, the Claim Form was revised and the revised form was

submitted to the Court on October 7, 2011. See Notice of Revision of Proposed Claim Form,

Docket No. 226. At the request oflead class counsel, with the consent of the defendant, the

Court will approve the revised Claim Form in the accompanying Order and Judgment.

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chosen to do the same. Id. ~ V.B.7. At that point, claimants who have selected Track B may opt instead for Track A if they choose to do so and noti fy the Claims Administrator. Id. If they do not so notify the Claims Administrator within a speci fied period of time, their selection of Track B becomes final and irrevocable. Id.
To prevail on a Track A claim, a plaintiffs' class member must show by substantial evidence that the class member (1) "is an African-American who farmed, or attempted to farm, between January I, 1981, and December 31, 1996"; (2) "owned or leased, or attempted to own or lease, farm lands"; (3) "applied, or constructively applied, for a specific farm credit transaction(s) or non-credit benefit(s) at a USDA office between January I, 1981 , and December 3 1, 1996"; (4) was denied the requested loan or benefits. or was provided a loan or benefits late, on tenns less favo rable than those requested, or subject to " restrictive condition[s]"; (5) sustained economic damages as a result of USDA' s handling of the application for a loan or benefits; and (6) "complained of discrimination to an official of the United States Government on or before July I, 1997, regarding USDA's treatment of him or her in response to the application." SA ~ V.C.I. Notably. class members proceeding on Track A under the settlement will not be required, as they would have been under the Pigford I consent decree, to identify a specific "similarly situated white farmer" who received better treatment from the USDA during the relevant time period. The USDA will not participate in the claim detennination process, except to provide infonnation about debt owed by the claimant that may be e li gible for forgiveness if the
claimant prevails. Id. 1 V.C.3. All documentation before the Track A NeutraJ, then. will come
from materials "submitted by the Class Member." U!.
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A class member proceeding under Track B must establish, "by a preponderance of the evidence and through independent documentary evidence admissible under the Federal Rules of Evidence," the same elements that a Track A claimant must, with the additional requirement that a Track B claimant must also show that the "treatment of the [claimant's] loan application(s)
by [theJUSDA was less favorable than that accorded a specifically identified, similarly situated
white farmer." SA ~ V.D.I. As with Track A, the USDA will not participate in the Track B claim determination process, nor are Track B claimants entitled to any discovery from the USDA. Id. V.A.9, II . Unlike the Track B process created by the Pigford I consent decree, the Track B resolution of claims under the settlement agreement involves only documentary evidence and does not require or allow a "mini-trial." See Mot. for Prelim. Approval at 17.
C. Ombudsman
At the request of the Court, the Moving Plaintiffs and the defendant have provided in the settlement agreement for the appointment by the Court ofa neutral third party, known as the "Ombudsman," to serve as the arm of the Court during the implementation of the claim resolution process. See SA VI. It will be the responsibility of the Ombudsman to ( 1) serve as a neutral party to whom complaints or concerns about the claim resolution process may be
presented; (2) work with the parties' counsel and, if necessary. the Court to address any serious
concerns or problems that arise during the implementation of the settlement agreement; and (3) report in writing to the Court, the defendant, and class counsel regarding "the good faith implementation" of the settlement agreeme nt. See id. Unlike the Monitor appointed tmder the consent decree in Pigford I, the Ombudsman will not have any power to reexamine the merits of
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any claim, nor will he or she have the authority to require the defendant to take any particular actions. rd. Vl.C.
D. Implementation Costs, Allorneys' Fees, and Legal Representationfor Class Members Ofthe $1.25 billion made available by the 2008 Farm Bill and the Claims
Resolution Act, a maximum of $38.5 million may be allocated for "implementation costs" "Court-approved admini strative costs associated with implementing" the claims resolution process created by the settlement agreement. SA II.I, R. The costs of the Ombudsman, which should be far less than those associated with other aspects of the settlement agreement, are not included in the $38.5 million reserved for implementation costs, and must be drawn from the $100 million appropriated by the 2008 Farm Bill. rd. ~ II.R, U.
The amount of attorneys' fees payable to class counsel is to be determined as a percentage of$1.25 billion minus $22.5 million ($1,227,500,000) - a calculation presumably intended to remove expected implementation costs from the fund, the size of which determines class counsel's fees. After the completion of the claims resolution process, the Court will approve a lump-sum fee for class counsel that will not exceed 7.4% of$I,227,500,000 ($90,835,000) or be less than 4.1 % of$I ,227,500,000 ($50,327,500). SA II.O. That fee will be divided among class counsel pursuant to the terms of the settlement agreement and a separate
contract executed between and among class counsel. See id. 1 X.E; Mot. for Fees, Ex. A.
As required by the settlement agreement, class counsel will represent any Track A claimant during the claims resolution process without seeking or receiving any additional fee from the claimant. SA, VIlI.A.2. Or if they choose, Track A claimants may retain non-class
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Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 38 of 70
counsel to represent them; such counsel may seek a fee of up to 2% of any award ultimately
made to a Track A claimant that he or she represents. ld. ~ x.A. Track B claimants, regardless
of whether they are represented by class counsel or another attorney, may be required to pay up to 8% of any award they receive in exchange for legal representation. Id. No class counsel designated by the accompanying Order and Judgment may seek to enforce the tenns of any existing contingency fee agreements with class members.
E. Provisions Required by the Claims Resolution Act The Court notes that the funds appropriated by the Claims Resolution Act become available to finance the settlement only upon a finding by the Court that "the Settlement Agreement [has been] modified to incorporate the additional tenns contained in subsection (g)" of the statute. Claims Resolution Act § 201 (b). The Court finds that this requirement of the statute has been satisfied. In particular, the settlement agreement has been modified to provide that (1) the Track A and B neutrals will be approved by the Court, the USDA, and the United States Attorney General, see SA ,~ II.JJ, RR; (2) all Track A and B neutrals must take an oath administered by this Court that "he or she will detennine each claim faithfully, fairly, and to the best of his or her ability," see id.; (3) counsel representing any claimant in the claims resolution process must produce a sworn statement to the effect that "to the best of the attorney's knowledge, information, and belief fonned after an inquiry reasonable under the circumstances, the claim is supported by existing law and the factual contentions have evidentiary support," id. ~ V.A.l.c.; (4) any Track A or Track B neutral may request more documentation or evidence from a claimant "if, in the [neutral's] judgment, additional documentation and evidence would he
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necessary or helpful in deciding the merits of a particular claim, or if the [neutral] suspects fraud regarding a particular claim," id. ~~ V.C.4, D.4; and (5) the Claims Administrator will prepare and provide to the USDA, the USDA's Inspector General, the Attorney General, and lead class counsel a report accounting for the use of all funds disbursed pursuant to the settlement agreement. See id. ~ V.F.
IV. FAIRNESS OF PROPOSED SETTLEMENT AGREEMENT Under Rule 23 of the Federal Rules of Civil Procedure, no class action may be dismissed, settled, or compromised without the approval of the Court. FED. R. CIV. P. 23(e). Before giving its approval, the Court must direct the provision of adequate notice to all members of the class, id., conduct a "fairness hearing," and find, after notice and a hearing, that the "settlement is fair, adequate and reasonable and is not the product of collusion between the parties." Thomas v. Albright, 139 F.3d 227, 231 (D.C. Cir. 1998). In performing this task, the Court must protect the interests of those unnamed class members whose rights may be affected by the settlement of the action. In this circuit there is " no obligatory test" that the Court must use to determine whether a settlement is fair, adequate, and reasonable. Osher v. SCA Realty I, Inc., 945 F. Supp. 298,303-04 (D.D.C.1996); see also Radosti v. Envision EM!, LLC, 717 F. Supp. 2d 37, 54 (D.D.C.2010). Instead, the Court must consider the facts and circumstances of the case, ascertain what factors are most relevant in the circumstances, and exercise its discretion in deciding whether approval of the proposed settlement is fair. By far the most important factor is a comparison of the terms of the compromise or settlement with the likely recovery that plaintiffs
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would realize if the case went to trial. ~ Pigford v. Glickman, 185 F.R.D. at 98 (collecting cases). In addition, courts frequently find the following factors relevant in assessing the fairness of a proposed settlement: (I) "whether the settlement is the result of ann' s-length negotiations" ; (2) "the status of the litigation at the time afthe settlement"; (3) "the reaction of the class"; and (4) "the opinion of experienced counseL" Radosti v. Envjsion EM!. LLC, 717 F. Supp. 2d at 55. Having carefully considered all afthe objections that have been filed with the Court or expressed at the Fairness Hearing, the Court concludes that the settlement is fair, adeq uate, and reasonable.s

S

The following individuals andlor organizations submitted written or oral

comments or objections: the Martin Objectors (Lany Morgan, M.e. Moore, Willie Parker, Sr.,

Vernon Ross, Sr., Blanche Ross, Lewis Walker, Thomas Walker, lnez Washington, Steven

Bailey, and O.C. Anthony); Thomas Burrell, President of the Black Fanners and Agriculturalists

Association; Ralph Paige. Executive Director of the Federation of Southern Cooperatives Land

Assistance Fund; Dr. Dewayne L. Goldmon, Chainnan of the National Black Agricu1tural

Alliance; Tracy Lloyd McCurty, representing the Rural Coalition; John Zippert, representing the

Federation of Southem Cooperatives; John W. Boyd, Jr" President of the National Black Farmers
Association; Bernice Atchison, President of the Black Fanners of emiton County, Alabama;

Justin and Willa Fouts; Booker T. Woodard; Diahann C. Stevens; Errol Von Hart; Eddie Lee

Gray; Muhommad Rabbalaa and Henry Bunis; Karla K. Adams and Tenie L., Theodore B., Brad

E., Kerry F., and Ava L. Bates; Lillie M. Wingard; Robert E. Walker; M. Murline Price; Joyce A.

Smith; Doris Gray; James Coleman; William Paramore; Gloria Davis Gi lmore; Carl Ulyssess

Eggleston; Jonathan Grant; Melvin Bishop; Obie Beal; and Pauline and Johnny Hughes.

Although the Court instructed potential objectors in its Preliminary Approval Order that they must include in their objections a "statement explaining the basis for the objector's belief that he or she is a Class Member," most objectors failed to do so. In re: Black Fanners Discrimination Litig.. Misc. No. 08-0511, Order Granting Preliminary Approval of Settlement Agreement 28(a) (D. D.C. May 13,2011). Based on the record before the Court, it appears that only the following individuals may have standing to make objections: Bernice Atchison, Larry Morgan, Blanche Ross, Thomas Walker, inez Washington, Errol Von Hart, Eddie Lee Gray, Doris Gray, William V. Paramore, Lille M. Wingard, M. Murline Price, Karla K. Bates, Terrie L. Bates, Bred E. Bates, and Kerry F. Bates. ~ Pigford v, Glickman, 185 F.R.D. at 103 n.17 (citing Mayfield v. Barr, 985 F.2d 1090 (D.C. Cir. 1993))(in general, only putative class members have standing to object to proposed settlement agreement). Nevertheless, the Court has carefully considered all comments or objections submitted, and discusses them where appropriate.
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A. The Process a/Settlement and Context a/the Litigation 1. Timing and Negotiation of Settlement
The Court has received very few substantive objections concerning the manner and context in which the settlement was negotiated - an unsurprising state of affairs given the natwe of this litigation and of most of the counsel involved with it. As the text of Section 14012 of the 2008 Farm Bill makes clear, that statute is intended to provide certain African-American farmers who were unable to pwsue relief under the Pigford I consent decree a second chance of sorts, an opportunity to gain relief similar to that afforded by the consent decree by engaging in a dispute resolution process similar to the one created by the decree. See Am. 2008 Farm Bill § 14012(d)-(f). As a result, when counsel in this case initiated settlement negotiations, they already had a template for their efforts, one that had been field-tested for roughly ten years: the Pigford I consent decree. Unlike in many class actions, here both plaintiffs' counsel, among whom are a number ofattomeys who participated in Pigford I, and defendant' s counsel, at least one of whom participated in Pigford I, were in a position from the outset of this case to gauge the defendant's liability, the sort of proof that would be required to establish plaintiffs' claims, the types of legal and factual questions that might arise during the adjudication process, and the range of problems that would arise in the management of the litigation. Class counsel and defendant's counsel thus were ideally situated to assess the strength of their litigating positions and to negotiate accordingly.
At the same time, despite the wealth of knowledge made available to counsel in this matter by the litigation in Pigford I, there was no rush to settlement in this case. Class counsel, led by Andrew H. Marks of Crowell & Moring, and defendant's counsel, led by Michael
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Sitcov of the Department of Justice, negotiated the tenns of the agreement currently before the Court for almost two years, exchanging more than 20 drafts of the settlement during the process.
Mot. for Prelim. Approval, Ex. 13~' 2, S; Sept. I Tr. at 26 (statement of Mr. Marks). From all
accounts, the negotiations were "vigorous" and at "ann's length." Id. There is no hint in the record, and no suggestion by any objector, that the attorneys who negotiated the tenns of the proposed agreement were anything other than professional and zealous in the defense of their respective clients' interests during the negotiation process.
The Martin Objectors have suggested, in a conclusory manner, that plaintiffs' counsel fai led to engage in sufficient discovery before accepting the settlement agreement that has been proposed. According to the Martin Objectors, "[t]here is no evidence. absent di scovery, to determine the strength of the Plaintiffs' cases, or, therefore, what a proper settlement amount might be." Martin Obj. at 5. While insufficient discovery is a charge frequent ly rai sed by those objecting to a proposed class settlement, the claim that class counsel were not sufficiently familiar with the factual underpinnings of this case is simply not credible. This case rests upon the same factual predicates as Pigford I, in which "'a literal mountain of discovery [was] provided and reviewed.... Pigford v. Glickman, ISS F.R.D. at 99 (citation omitted). USDA's liability fo r widespread discrimination against African-American fanners in the relevant time period is not in di spute. See supra at 4. In addition, the 12 years of proceedings that have taken place under the Pigford I consent decree have provided counsel in this case with a huge amount of data - including the detailed annual Monitor's Reports - from which to extrapolate the likely success rate of Pigford II plaintiffs. Against this backdrop, the assertion that "[t]here is no
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evidence" from which class counsel might estimate the strength of the plaintiffs' case is profoundly unpersuasive.
As the foregoing analysis indicates, the proposed settlement agreement was the result of ann' s-Iength negotiations by experienced counsel who had extensive knowledge about the factual basis of the case. As a result, the settlement is entitled to "[a] presumption of fairness, adequacy, and reasonableness." Radosti v. Envision EMI. LLC., 717 F. Supp. 2d at 56.
2. Adequacy of Notice "When a class is certified and a settlement is proposed, the parties are required to provide class members with the <best notice practicable under the circumstances. '" Pigford v. Glickman, 185 F.R.D. at 101 (quoting FED. R. Clv. P. 23(c)(2)). In this case, class members have received more than adequate notice and have had sufficient opportunity to be heard on the fairness of the proposed settlement. Notice of the proposed settlement was provided promptly, allowing potential class members ample time to lodge objections, and was disseminated in a manner calculated to reach as many of those putative class members as was practicable. The best possible source of the names and addresses of potential class members, the Pigford I Facilitator's list of 5(g) petitioners, was put to good use; postcard notice of the proposed settlement was mailed directly to almost 90,000 possible class members on June 3, 2011 , some ten weeks before the deadline for filing a written objection. See Mot. for Final Approval, Ex. B ~ 6. Class counsel also retained a finn specializing in the provision of class action notice, which developed and
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implemented a comprehensive scheme for reaching a vast array of potential class members by use of radio, television, print, and Internet campaigns. See supra at 16-17.
Although the content of the notice provided by class counsel varied somewhat depending on the format in which it was presented, every form of notice was carefully designed to give any potential class member easy access to detailed information regarding ""the terms of the proposed settlement and ... the options that are open to [class members] in connection with
[the1proceedings'" in this Court. Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072,
1078 (2d Cir. 1995) (citation omitted). And, unlike in some class action cases, despite the complexity of the case, the notices were written in easy-to-understand plain English.
Short-form notices gave possible class members an overview of the subject matter of this litigation, the major forms of relief that might be available to them under the proposed settlement, and their right to submit objections. See,~, Mot. for Prelim. Approval, Ex. 5, Attach. 3, App. 4 (postcard notice). Those short-form notices also directed potential class members to both a toll-free telephone number and a website through which an individual could obtain long-form notice. See id. Long-form notices provided detailed but accessible summaries of the nature of this litigation, the requirements for class membership, the terms of the proposed settlement, the date, location, and purpose of the Fairness Hearing, and the manner in which objections could be submitted. See id., App. 5 (long-form notice). Putative class members were also instructed on how to file a claim in the event that the settlement is approved. See id. at 8. The notice provided a toll-free number that could be used to contact class counsel. See id. at 9. In short, class counsel's notice program was exceptionally well-designed by Kinsella Media,
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LLC to reach as many potential class members as was practicable and to provide in a comprehensible way exactly the information that such class members might want and need.
3. Responses of Class Members Potential class members were given a lengthy period in which to file objections to the settlement, and the Court has given careful consideration to all objections, even those that were filed late, that did not meet the substantive or procedural requirements outlined in the Court's Preliminary Approval Order, or that were submitted by individuals who did not attempt or otherwise failed to establish that they are members of the proposed settlement class. As the Court has already discussed, see supra at 17, the proposed plaintiffs' class in this matter could encompass tens of thousands of individuals. In light of that fact, it is significant that only approximately 15 likely class members have made objections to the settlement. ~ Pigford v. Glickman , 185 F.R.D. at 102 (noting as a factor weighing in favor of settlement approval that "there are relatively few objections to the settlement in comparison with the size of the class"). By contrast, there is powerful evidence that the vast majority of possible class members are enthusiastic about the settlement and welcome the opportunity to pursue reliefWlder its provisions. According to the Claims Administrator, 62,7]5 individuals have already requested a Claims Package so that they may participate in the claim resolution process once the settlement is approved and implemented. Mot. for Final Approval, Ex. B ]3. Given the overwhelming indications of support for and interest in the settlement and the comparatively minuscule number of objections to it, the Court easily concludes that the mere fact that some potential class
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members dislike aspects of the settlement is not sufficient to demonstrate that the settlement is not fair and adequate. See Pigford v. Glickman, 185 F.R.D. at 102.
B. Substantive Fairness oJthe Settlement As our court of appeals has said, in considering a proposed class action settlement, the Court first must compare the benefits afforded to class members under the settlement with the likely recovery that plaintiffs would have realized if they pursued the resolution of their claims through litigation in court. See Thomas v. Albright, 139 F.3d at 231. The Court must look at the settlement as a whole and should not reject a settlement merely because individual class members claim that they would have received more by litigating rather than settling. The Court should scrutinize the tenns of the settlement carefully, but the discretion of the Court to reject a settlement is restrained by the "principle of preference" that encourages settlements. See Durrett v. Rous. Auth. of City of Providence, 896 F.2d 600, 604 (I st Cir. 1990); Radosti v. Envison EM!, LLC, 717 F. Supp. 2d at 51; In re Vitamins Antitrust Litig., 305 F. Supp. 2d 100, 103 (D.D.C. 2004); Pigford v. Glickman, 185 F.R.D. at 103. Furthermore, '~he Court [should not] make the proponents of the agreement justify each tenn of settlement against a hypothetical measure of what concessions might have been gained." Stewart v. Rubin, 948 F. Supp. 1077, 1087 (D.D.C. 1996). The relevant question is whether the structure of the settlement and the substantive relief, including the amount of money provided, are fair and reasonable when compared with the recovery that plaintiffs likely would have realized if their claims were decided through the judicial process. In this case, the benefits offered to plaintiffs by the settlement agreement are so substantial, and the likely outcome of this case to individual plaintiffs if it were
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to proceed to a final resolution in court is so dismal, that the Court is firmly convinced that the

,

settlement is fair, adequate, and reasonable.

I

I. Likely Results of Settlement Contrasted with In-Court Adjudication

In the absence of the proposed settlement, the plaintiffs' prospects for recovery are

sobering. The $1 .15 billion appropriated by Congress in the Claims Resolution Act is

specifically earmarked for the funding of the proposed settlement agreement and its availability is

contingent on the approval of a settlement. Indeed, the statute precisely identifies the agreement

funded as the one executed by class counsel and the defendant on February 18,2010, as

subsequently revised, if at all, by agreement of the parties. See Claims Resolution Act

§ 20 l(a)(I). Without that additional $l.l5 billion - i.e., in the absence of an approved

settlement agreement - the only funds available for prevailing plaintiffs in this matter are the

$100 million appropriated by Section 14012 of the 2008 Farm Bill. See Am. 2008 Farm Bill

§ 14012(c)(2). Although the Farm Bill originally suggested that more funds might be available

for the payment ofclaims in this case as the initial $100 million fund was depleted, see 2008

Farm Bill § 14012(i)(2), j(2), the Claims Resolution Act amended the Farm Bill to remove that

possibility and explicitly provided: "If the Settlement Agreement is not approved as provided in

this subsection, the $100,000,000 of funds ... made available by section 14012(i) of the [2008

Farm Bill] shall be the sole funding available for Pigford claims." Claims Resolution Act

§ 20 I(b) (emphasis added). At $50,000 per claim, see supra at 32, that $100 million would cover

Track A cash damages - excluding damages paid in the form of loan forgiveness and tax relief

- for only 2,000 of the tens of thousands of plaintiffs in this case.

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If the plaintiffs were to pursue relief solely through litigation in this Court and not through the claim determination process created by the settlement agreement, the fonnidable obstacles to a reasonable recovery for prevailing plaintiffs would derive not only from the grossly insufficient funds available for the payment of claims, but also from staggering, perhaps insunnountable, case management problems. The 23 complaints filed in this Court under
Section 14012 of the 2008 Fann Bill name 40,000 individual plaintiffs. Section 14012 provides that the claim of every plaintiff should be determined by this Court. See Am. 2008 Fann Bill § 14012(b), (e)(I)(B). Adjudication of individual claims on such a massive scale would take decades. ~ Pigford v. Glickman, 185 F.R.D. at 94. Indeed, any judicial adjudication of the
claims authorized by Section 14012 would be so "wunanageable," id., that it is almost impossible not to conclude that Congress expected and intended this matter to be resolved by a class action settlement.
Furthermore, in the absence of settlement, it is unclear that the severely limited fund available for the payment ofawards could be distributed equitably among prevailing plaintiffs. Under the proposed settlement, the equitable division of available funds is ensured because individual adjudications will occur swiftly, in approximately a year, and payments from the fund will be made to prevailing claimants only once the amount of all awards is determined.
In contrast, in the absence of the settlement and the certification ofa Rule 23(b)(I)(B) limited
fund class, it might not be possible for the Court to delay the payment of awards pending the adjudication of all claims - meaning that available funds would be exhausted by payments to prevailing claimants long before all claims were decided. Even if payments could be delayed, adjudication of all claims would be so time-consuming that payments to claimants might not be
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made for many years. Such a result is undesirable in a case where the injuries to be redressed are already decades old and many of those likely entitled to relief are elderly or already deceased. It is also contrary to the intent of Congress, which expressed its wish in the 2008 Farm Bill that the claims of plaintiffs in this case "be resolved in an expeditious and just manner." Am. 2008 Farm Bill§ 14011.
Some of the individuals who have objected to the proposed settlement appear to be proceeding under the misapprehension that African-American fanners who were unable to present their claims in Pigford I may obtain resolution of those claims by filing a complaint under a statute other than Section 14012 of the 2008 Fann Bill. For example, Mr. Thomas Burrell, president of the Black Fanners and Agriculturalists Association, asserted at the fairness hearing and in a written submission, ~ Burrell Notice ~~ 27-28, that "the 66,000 or soD claimants who were denied entry into Pigford I" may still file complaints in court under Section 741 of Public Law No. 105-277, the 1998 statute that revived certain stale ECOA claims by permitting them to be filed at any time within two years of the statute's enactment. See PUB. L. No. 105-277, § 741; supra at 4. Mr. Burrell is simply wrong. The Pigford I consent decree by its terms extinguished the ECOA claims against the USDA of all members of the Pigford I plaintiffs' class who did not opt out of the consent decree by August 30, 1999. ~ Consent Decree ~ 18; Pigford v.
Veneman, 208 F.R.D. 21, 23 (D.D.C. 2002). Thus, no Pigford claimant who did not opt out of
the class by August 30, 1999, could pursue his or her Pigford claim in court, whether under Section 741 or otherwise.
Those individuals who fit the definition of the plaintiffs' class in Pigford and who filed a timely opt-out notice were permitted to pursue their claims under ECOA and Section 741
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in court rather than under the consent decree; but to do so, they had to file in court a complaint setting out their claims prior to the end of the statute of limitations period established by Section 741 - that is, on or before October 21, 2000. Thus, none of the "66,000 orso[] claimants," by Mr. Burrell's calculation, "who were denied entry into Pigford J" can, at this late date, pursue their Pigford claims under Section 741 and/or ECOA. Their only avenue of relief is Section 14012 of the 2008 Farm Bill.
As the Court has made clear, those with claims under Section 14012 are faced with two drastically different possibilities for resolution of those claims: a decades-long process of in-court adjudication that may end by providing little or no recovery for most claimants, or the alternative, out-of-court claims process created by the proposed settlement agreement, which would provide claimants with a much larger potential recovery and permit the payment of awards in one to two years. The merits of these options are not similar; the settlement agreement affords the far better result. Furthermore, in light of various statutory and financial constraints, the settlement agreement strikes a fair, reasonable, and adequate balance between the competing concerns of all affected parties.
2. Breadth of Plaintiffs' Class Various objectors have complained that the plaintiffs' class contemplated by the settlement agreement is either too narrow or too broad. A number of objectors, most prominently those represented by attorney Precious Martin, argue that the class is too broad because it does not permit any individual falling within its definition to opt out of the class and, by extension, out
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ofthe settlement agreement. See Martin Obj. at 12-13. Indeed, the Martin Objectors assert that
any class settlement that does not pennit opt-outs is unconstitutional. ~ iQ. The Court is aware
of no authority establishing such a rule. On the contrary, "courts shouJd not pennit opt-outs when doing so would undermine the policies behind (b)(I) ... certification[.J" Eubanks v. Billington, 110 F.3d 87,94-95 (D.C. Cir. 1997); see also Keeps..gle v.lohanns, 236 F.R.D. I,
3-4 (D. D.C. 2006) (same). In this case, permitting opt-outs would destroy the fairness of the proposed
settlement and defeat the purpose of certification of a Rule 23(b)(I)(B) class. The settlement
agreement addresses the problem of insufficient available funding by providing for delayed payment of awards and, if necessary. the pro rata reduction of awards to ensure that similarly situated claimants receive the same recovery. See gmm at 33. If class members were permitted
to opt out of the claim resolution process created by the settlement agreement, they could pursue their claims in court and avoid both delayed payment of awards and any equitable reductions in the amount of their recovery, destroying the safeguards intended to provide for the fair di stribution of limited fund s. Furthennore, if presented with the opportunity to escape from the restrictions imposed by the settlement agreement, plaintiffs would likely opt out in large numbers, rendering the agreement a dead letter. Opt-outs are thus contrary to the interests of the plaintiffs' class as a whole and caMot be pennitted.
Other objectors have suggested that the proposed plaintiffs' class is too exclusive. They argue that this litigation should afford relief to "the large number ofactive fanners who were outright denied or denied proper debt relief in the first Pigford settlement," NBAA Letter at 5, or individuals who filed late or incomplete claim packages or petitions for Monitor review
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in Pigford I. See Federation Letter at 2. The definition of the plaintiffs' class contained within the settlement agreement, however, tracks the language of the 2008 Farm Bill, see supra at 18, and encompasses every individual authorized by the statute to pursue relief under its provisions. Pigford I claimants whose claims under the consent decree were presented to and denied by the Adjudicator or the Arbitrator are not eligible for any relief under the statute, See Am. 2008 Farm Bill § 14012(b), The settlement agreement cannot provide relief to those with no legal entitlement to it.
3. Adjudication Process Perhaps the most difficult problem confronted by the negotiators of the settlement agreement was the need to balance, on one side, the interests of all parties and the United States itself in the accurate determination of claims, and on the other, the practical reality that most class members, because of the passage of time and the failure of the USDA to investigate civil rights complaints during the relevant time period, cannot meet the stringent evidentiary standards required in traditional litigation to prove their claims. It was widely felt by all parties in Pigford I that drastic remedial action was required in light of the USDA's history of discrimination, and that "class members' lack of docwnentation [oftheir claims] [was] at least in part attributable to the passage of time which hard] been exacerbated by the USDA's failure to timely process complaints of discrimination." Pigford v, Glickman, 185 F.R.D. at 94. Therefore, Track A, with its lowered burden of proof, was designed to provide 'virtually automatic" relief to those who had " little or no documentary evidence," Id. at 95. Yet, because of the similarly situated white farmer requirement, that turned out not to be the case; only 69010 of Track A claimants prevailed,
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even after Monitor review of the Adjudicator's claim decisions. See 2010 Monitor Report at 10. In light of that fact, some commenters have suggested that the Track A adjudication process should be less rigorous than the settlement agreement proposes. See,~, NBAA Letter at 5 ("[O]nce a Black farmer proves that he is an eligible party, the evidence of discrimination should include information that could easily be provided by the complainant or USDA. ").
Set against any impulse to ease the requirements of the Track A adjudication process is the need to ensure that relief goes to those who truly are entitled to redress - those who were victims of USDA discrimination during the relevant time period. This interest is particularly strong in a limited fimd case, where any erroneous award reduces the total pool of money available for plaintiffs with meritorious complaints. At the same time, the existence of a limited fund of available assets that must be used both to pay awards and to cover implementation costs increases the pressure to keep those implementation costs - including the costs of adjUdication - low.6
Finally, the congressionally established limitation on the liability of the government in this case removes the defendant's financial incentive to contest claims, for the amount that may be paid to claimants, regardless of how many claimants are successful, is fixed, while the government incurs more and more costs every time the Department of Justice or the Department of Agriculture becomes involved in the adjudication process. And in fact, the settlement agreement provides that neither agency will oppose claims made in the adjudication

6

Furthennore, it would be difficult to imagine a less rigorous standard than the

"substantial evidence" burden as defined in the settlement agreement, SA, V.C, in combination

with the elimination of the requirement in Track A to show that a similarly situated white farmer

was treated more favorably by USDA. Compare SA, V.C, with Consent Decree ~ 9(a)(i)(C).

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process; nor may any claimant obtain discovery from the USDA, with the exception of info nnation about the claimant's own debts. See SA V.A.9. Those provisions of the agreement will dramatically reduce the defendant' s costs and accelerate the rate at which claim determinations may be made; they will also, on balance and in combination with the elimination of the requirement that Track A claimants identify a "similarly situated white fanner," see supra at 35, likely lead to an increase in the number of Track A claimants who are able to prevail on their claims. At the same time, however, the non-participation of the USDA in the adjudication process removes one means of ensuring accurate claim determinations. In the absence of infonnation supplied by the USDA, plaintiffs' claims will succeed or fail based solely on the strength of the claimants' submissions - their level of detail and coherence, their consistency, and their credibil ity.
It is clear from the filings of class counsel and from the settlement agreement itself that both the Moving Plaintiffs and the defendant are sensitive to the competing concerns at play in the claim determination process and have structured that process accordingly. While the defendant has little if any financial incentive to be concerned about the structure of the adjudication process, it does, as a goverrunent agency, have a fiduciary duty to ensure that public fund s are disbursed responsibly and with a reasonable likelihood of reaching their intended recipients.7 In the Court's view, it has fulfilled that duty. Working within the constraints

7

That fiduciary duty includes the responsibility to investigate any fraudulent claims

by claimants, as well as scams on and misrepresentations made to claimants. As was made clear

at the Fairness Hearing, there is evidence that such scams and misrepresentations have taken

place in the past and continue to be of concern to claimants and their attorneys today. See Sept. 1

Tr. at 160-64 (statement of Ms. Rose Sanders). In add ition, class counsel and the neutrals shall

promptly bring to the attention of the Inspector General of the Department of Agriculture, to the

United States Department of Justice, and to the Ombudsman appointed by the Court pursuant to

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imposed by Congress' limitation of available funding, class counsel and defendant's counsel have proposed a system of adjudication that would subject each claim to careful and rigorous review while keeping costs in check.
Track A claims, subject to a lower standard of proof, will each be assessed at least twice, by two separate reviewers. First, one of the attorneys at BrownGreer, "a litigation support and claims management firm devoted to mass claims resolution, litigation management, and claims administration," will review each claim and issue a recommended decision on its merits.
Supp. Mem. at 2-3. Then an attorney working for the Track A Neutral, JAMS , with
BrownGreer's recommendation in hand, will review the claim de novo and render a decision. Id. at 4. If that decision is a denial of the claim, the claim determination will be reviewed again by another JAMS adjudicator, one with experience in the adjudication of Pigford I claims. Id. at 7. This iterative review process will reduce errors in claim determinations and subject each claim to thorough examination.8
Because Track A claim determinations will be based largely on the quality of the claimant's submissions, it is essential that the Track A Neutral have established protocols for assessing the credibility of factual assertions and for drawing the line between persuasive and unpersuasive claims. The Court is convinced that class counsel are aware of this necessity and

the settlement agreement information that they receive relating to potential scams on claimants and/or misrepresentations being made to claimants relating to the claims process or the relief available to claimants under the settlement agreement.

•

BrownGreer thus assists JAMS by, as class counsel puts it, "serv{ing] as an

additional quality control check on the process, providing a second set of eyes for each claim,

and [providing] an additional review for detecting potential fraud in the process." Supp. Mem.

at4.

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have taken appropriate steps to ensure that the necessary protocols are in place. First, the Court notes that the team from JAMS that will review Track A claims consists of very experienced attorneys/arbitrators and will be led by Lester Levy and Nancy Warren, both of whom have extensive knowledge of the types of claims at issue in this case because they adjudicated Track A claims in Pigford I. See Supp. Mem. at 2, 9. Indeed, 10 of the 16 adjudicators from JAMS were involved in the detennination of claims in Pigford LId. at 2.
Second, Track A neutrals from JAMS, as well as claims reviewers from BrownGreer, will undergo initial and continuing training on such crucial matters as fann loans, applicable legal standards, and USDA procedures. See Supp. Mem. at 5-6. The form of continuing training will be detennined by a quality control process whereby random samples of claim detenninations are reviewed by a JAMS team led by Lester Levy. Id. at 7. If that review of randomly selected claims demonstrates weaknesses or inconsistencies in the claim detennination process, neutrals will be retrained accordingly. See id. BrownGreer will subject its claims review process to similar quality controls and will also retrain its attorneys as necessary. Id. at 7.
Finally, the Track A neutrals have already begun a process intended to generate specific guidelines for the review and detennination of claims presenting various types of factual allegations. JAMS and BrownGreer are currently testing the Track A adjudication process by deciding 300 "'mock' claims prepared by Class Counsel after interviewing 300+ putative class Members and assisting them in completing draft Claim Fonns," See Supp. Mem. at 5~6. This test run will pennit the development of consistent approaches to various factual patterns and will pennit training of neutrals to be tailored to clarify concepts and standards that have proven
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difficult to apply or understand. See id. at 6. The Court is satisfied that this extensive plan for the preparation and continuing training of Track A neutrals, combined with the iterative claim determination process described above, will yield fair results for Track A claimants.
The Track B adjudication process, as in the past, is relatively demanding, requiring that claimants prove their claims by a preponderance of the evidence and by supplying "independent documentary evidence." SA ~ V.D.I. The results of Track B claims will be similarly fair, since those claims will be assessed by Michael Lewis, the Pigford I Arbitrator, who has immense experience in and knowledge of the factual and legal issues likely to arise in the claim determination process. See Supp. Mem. at 6 n.6.
A number of individuals have objected that the proposed settlement agreement does not permit claimants to appeal adverse decisions by the Track A or Track B NeutraL See, ~. Federation Letter at 2; Burrell Obj. ~ 45. The Court concludes that the absence of such an
appeal option or a court-appointed Monitor (as in Pigford Ddoes not render the settlement
agreement unfair, unreasonable, or inadequate. As the Court has explained, class counsel have set in place numerous safeguards against erroneous claim determinations, including an additional layer of review for every adverse determination by a JAMS neutraL See Supp. Mem. at 7. These safeguards lessen the benefit to be gained by an appeals process. Furthermore, under the settlement agreement - unlike the consent decree in Pigford I - Track A claimants need not prove they were treated less favorably than a similarly situated white farmer, and no government counsel will be opposing adequately documented claims. Therefore, there is much less need for an appeals process or Monitor review. Finally, an appeal option would significantly increase the cost of the claim determination process - reducing the funds available for the payment of
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awards - as well as slow that process considerably, delaying the distribution of any awards to successful claimants. Given the costs and benefits of an appeal process or even a Monitor oversight and review, the Court concludes that the decision of the Moving Plaintiffs and the defendant not to offer such a process under the settlement agreement does not make the agreement or the process it established unfair or unreasonable.
One commenter has suggested that unsuccessful Track B claimants should be allowed subsequently to pursue Track A relief. See NBAA Letter at 5. That suggestion is not feasible. "If there were a fallback mechanism to provide relief for claimants who failed in their Track B claims, every class member would choose Track B and the settlement structure would collapse under its own weight." Pigford v. Glickman, 185 F.R.D. at 107 (responding to the same suggestion).
As the foregoing analysis indicates, structuring the claim determination process in this matter required the careful balancing of many competing factors. The balance ultimately reached by the Moving Plaintiffs and the defendant is fair, adequate, and reasonable.
4. 180 Days for Submission of Claims The settlement agreement requires completed Claim Packages to be submitted to the Claims Administrator within 180 days of the date the agreement becomes effective. See supra at 33. Any class members who fail to submit a complete Claim Package within that window of time will be unable to receive any relief under the agreement or the 2008 Farm Bill. Some objectors assert that 180 days is an insufficient amount of time for the preparation and submission of claims. See, ~, Federation Letter at 2. None of these objectors, however,
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suggests a preferable length of time, or supplies any specific reasons to believe that 180 days will

I

be insufficient. As the Court has already found, the notice program instituted by class counsel is

more than adequate, see supra at 43-45, and class counsel have represented that after the approval

of the settlement they will continue to provide notice; within the l80-day claim submission

period, postcard reminders will be sent by mail to potential class members on the Facilitator's

5(g) list who have not yet filed a claim. See Mot. for Prelim. App., Ex. 5, Att. 3 at 9. Then, at a

second. later point during the submission period, the Claims Administrator will contact by phone

those potential class members on the Facilitator's list who have not filed a claim. Id. Finally,

once the settlement is approved, class counsel will work with community and trade organizations

to disseminate news of the settlement by word of mouth. Id. at 8. In addition to this extensive

continuing notice program, class counsel will be working during the 180-day window to provide

class members with direct assistance in the preparation of Claim Packages. See Mot. for Prelim.

Approval at 21. In light of this extensive plan for outreach to potential claimants, it is not unreasonable to require class members to file their claims within a 180-day period.9

5. Fonns of Relief The forms of relief offered to class members through the settlement agreement are reasonably chosen and structured in light of the financial constraints imposed by Congress. One commenter suggested that debt relief should be emphasized in the settlement agreement. See NBAA Letter at 4. In fact, the settlement agreement has always provided for significant debt relief. Track A claimants who prevail on a credit claim are entitled to forgiveness of certain

9

As provided in the accompanying Order and Judgment, the 180-day period will

commence on November 14,2011 and end on May 11 ,2012.

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outstanding loans if those loans are related in specified ways to the claim on which the class
member prevailed. See SA n.MM. Acknowledging that claims for debt relief are "highly
technical /' class counsel have arranged for all such claims to be detennined by a group of neutrals "who have extensive experience reviewing and analyzing USDA debt records and all relevant comrmmications from the Pigford Monitor' s office." Supp. Mem. at 8. JAMS will also secure the services of a debt relief expert to assist in the detennination of claims for debt relief.
See id. at 8-9. Finally, the settlement agreement provides that the USDA will not "accelerat[e] or
foreclos[eJ any FSA Farm Loan Program Loan held by a Class Member that originated between
January 1, 1981, and December 31, 1996," unless and until the class member in question is
reported not to be entitled to relief under the settlement. SA ~ VII.A. One individual has objected to the $250,000 cap imposed on Track B awards by
the settlement agreement. See Gray Letter at I. That cap represents a reasonable compromise reached by balancing conflicting interests and in light of the restricted funding that is available for awards to class members. First, the cap serves the purpose of preventing a small number of claimants from receiving a highly disproportionate amount of the limited fund. In Pigford I, 101 Track B claimants - just 0.6% of the claimants who prevailed under the consent decree received 4% of total monetary relief awarded. See 20 I0 Monitor Report at 10, 12, 20. Given the strong possibility that Track B claimants might in this case be awarded a recovery significantly disproportionate to their numbers and thus divert a disproportionate percentage of the limited
available funds away from other class members, it was not unreasonable to impose a cap on
Track B awards.
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Second, the Track B cap is reasonable in light of the fact that the defendant will not oppose any claims made under the settlement agreement. ~.mm at 53-54. As a result, the risk of failing to prove a Track B claim is reduced. Given the reduced risk faced by Track B claimants under the settlement agreement, it is reasonable that the ultimate recovery pennitted should also be reduced.
Finally, the aggregate cap on Track B awards of$100 million is reasonable. The aggregate cap serves the purpose of preventing the disproportionate reduction of the limited fund by Track B claimants. Because Track B claimants will be given the opportunity to switch to Track A once they are notified of the total number of class members pursuing Track B claims, they will not be unfairly surprised if aggregate Track B awards exceed the $100 million cap and
have to be reduced on a pro rata basis. The limits on Track B awards thus reflect a careful and
reasonable balancing of the interests of all class members. Some individuals have objected that late-late file rs are subject to a greater
reduction of their awards than are late filers. See Bates Obj. "i/6; see ~ gmm at 33. But late filers and late-late filers are differently situated. The 2008 Fann Bill does not specify whether, to qualify for relief under the statute, a plaintiff must have submitted a timely 5(g) request. See supra at 11. The statute could be reasonably construed both to grant relief to late-late filers and to deny it. In light of that fact, both sets of plaintiffs would run the risk of an unfavorable detennination if the Court were forced to identify the correct interpretation of the statute. Instead of running that risk, the late filers and late-late filers among the Moving Plaintiffs, represented by separate and independent counsel, ~.s..!:!Il.@ at 31, reached a fair and reasonable compromise of their competing interests by agreeing that late-late filers would be pennitted to pursue relief
61

Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 62 of 70
under the settlement agreement, but would be forced to accept a greater reduction in their awards if the available fund proved too limited to pay all awards in full.
Finally, some have objected to the lack of injunctive relief afforded by the settlement. See. ~ Burrell Obj. at 25-26. The answer to this complaint is simple: Section 1401 2 does not authorize injunctive relief. The defendant cannot be expected to agree to any settlement that would involve the granting of a form of relief that could not be awarded if the case were to proceed in court.
The relief available under the settlement agreement is carefully calibrated in light of the limited funds available and the sometimes competing interests of different groups of class members. It is fair, reasonable, and adequate.
6. Attorneys' Fees The only major objection remaining to be addressed is perhaps the most frequently voiced: attorneys' fees are too large. See,~, Price Obj. at 3; Burrell Obj. at 27. As the Court has already explained, the settlement agreement provides that the Court will choose an appropriate aggregate award of attorneys' fees for class counsel that is between 4.1 and 7.4% of
$1,227,500,000, i.e., between $50,327,500 and $90,835,000. SA, 11.0. Because Congress has
appropriated a fixed sum of money for the payment of all expenses and awards associated with claims under Section 1401 2 of the 2008 Farm Bill, and because Section 14012, unlike ECOA, contains no fee-shifting provision, attorneys' fees must be drawn from the $1.25 billion appropriated by the 2008 Farm Bill and the Claims Resolution Act. Of necessity, this means that a larger award of attorneys' fees leads to a smaller available fund for the payment of awards. But
62

Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 63 of 70
to pennit only a minimal award of attorneys' fees, as some objectors have proposed, is not a realistic or desirable response to that problem.
In the absence of the services of class counsel, the members of the plaintiffs' class would not be in a position to divide up $ 1.25 billion (less implementation costs); they would be engaged in a chaotic struggle to win a portion of the $ 100 million appropriated by the 2008 Farm Bill before those funds ran out. As the Claims Resolution Act's specific references to the settlement agreement make clear, the execution of an agreement between class counsel and defendant's counsel was a necessary catalyst leading to the appropriation of a great deal of additional funding for this litigation. See Claims Resolution Act § 20I(a), (b). Just as importantly, the settlement agreement negotiated by class counsel makes the funding appropriated by Congress far more accessible to class members than it othefVolise would have been. As has already been explained, litigation of the claims of the plaintiffs in this or any court would have resulted in likely disastrous outcomes: the full compensation of some prevailing plaintiffs at the cost of depriving others of any recovery and/or a years-long delay in the resolution of claims. Class counsel's intensive efforts over nearly two years to arrive at a settlement have thus yielded enonnous benefits to the class already.
Without the services of class counsel, then, there would be no recovery for most class members. In such a situation, where class counsel's efforts have "create[d], preserve[d], or increase[d] the value of a fund" whose proceeds will be distributed to class members, "[i]t is ... well established that ... [counsel] is entitled to a reasonable attorney's fee from the fund as a whole." Swedish Hosp. Cow. v. Shalala, I F.3d 1261, 1265 (D,C. Cir. 1993). If the rule were
63

Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 64 of 70
otherwise, "the beneficiaries of the fund [would] be unjustly enriched by the attorney's efforts." Id.
In this circuit, courts typically detennine the appropriate amount of fees to be apportioned to attorneys in a "common fund" case such as this one by approving a specified percentage of the fund that will be eannarked for attorneys' fees. See Swedish Hosp. COW. v. Shalala, I F.3d at 1266, 1271.
Courts have looked to several factors in assessing the reasonableness of a fee request, including: (1) the size of the fund created and the number of persons benefitted; (2) the presence or absence of substantial objections by members of the class to the settlement tenns and/or fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the amount of time devoted to the case by plaintiffs' counsel; and (7) the awards in similar cases. In re Saan Co. Securities Litig., 288 F. Supp. 2d 14, 17 (D.D.C. 2003). To set a benchmark against which the reasonableness of class counsel's fee request may be measured, the Court will address first the last of those factors, awards in similar cases. In "a majority of common fund class action[sl," attorneys' fee "awards fall between twenty and thirty percent" of the fund. Swedish Hosp. COW. v. Shalala, 1 F.3d at 1272; see also In re Dep' t ofVeteraos Affairs (VA) Data Theft Litig., 653 F. Supp. 2d 58, 61 (D.D.C. 2009) ("The majority of fee awards nationally appear to fall in a range of20 percent to 30 percent of the common fund."); 4 RUBENSTEIN, CONTE & NEWBERG, NEWBERG ON CLASS ACTIONS § 14:6. Larger common funds are typically associated with smaller percentage awards, however, because even a small percentage ofa very large fund yields "a very large fee award." Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96,122 (2d Cir. 2005). Where the common fund is
64

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I worth many millions or even billions of dollars ~ in so-called "megafund" cases ~ an
I appropriate fee may be considerably less than twenty percent of the fund. See id.; In re AT&T
j Mobility Wireless Data Servs. Sales Tax Litig., No. 10-2278, 2011 WL 2173746, at '3-'4 (N.D. Ill. June 2, 20 II) (surveying studies of awards in megafund cases). Nevertheless, even in cases where. as here, the common fund is over one billion dollars, the range of percentages pennitted by the settlement agreement in this case ~ 4.1 to 7.4% ~ is unexceptional. According to one study, in cases involving common funds "from $500 million to $1 billion" in 2006 and 2007. "the mean and median awards were both 12.9%" of the fund. In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 2011 WL 2173746, at '4 (citing Brian T. Fitzpatrick, An Empirical Study ole/ass Action Settlements and Their Fee Awards, 7 J. EMPIRICAL LEGAL STUD. 811, 839 (2010)). In other cases, where the class recovery exceed $1 billion, courts have approved awards in the 5 to 10% range. See,~, Wal-Mart Stores. Inc. v. Visa U.S.A.. Inc. , 396 F.3d at 122 (approving district court's award of 6.5% of$3 billion fund); In re Ernon Com. Securities, Derivative & "ERISA" Litig., 586 F. Supp. 2d 732, 740, 828 (S.D. Tex. 2008) (approving award equal to 9.52% of $7.2 billion fund). The Court also notes that in Keepseagle v. Vilsack, another class action involving allegations of discrimination by the defendant USDA, Judge Emmet G. Sullivan approved a fee award equal to 8% ofa $760 million fund. See Keepseagle v. Vilsack, Civil Action No. 99-3119, Order on Plaintiffs' Motion for Final Approval of Settlement , 8 (D. D.C. Apr. 28,2011). In this context, an award in the range of 4.1 to 7.4% of the $1 .25 billion fund in this case would be a reasonable one, neither unusually high nor extremely low.
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The complexity of this action, the time already devoted by class counsel to this case, and the skill of the many attorneys working on behalf of the plaintiffs' class also justify the approval of a substantial fee award in this case. Although civil rights litigation is not typically considered as complex as, for example, sprawling commercial class actions, this case involves a wide range of complicating factors: an enormous, geographically dispersed plaintiffs' class that may number more than 60,000; a multitude of individual claims predicated at least in part upon unique facts and upon events that may have occurred as much as 30 years ago; an authorizing statute never interpreted by a court; a dizzying array of relevant statutory and regulatory provisions affecting the validity of claims as to both liability and damages; a large number of potential class members who are highly suspicious of both attorneys and the govenunent~ and intense scrutiny by Congress, the executive branch, and the press. The prospect of such litigation is daunting, and many attorneys would not have undertaken it.
Class counsel, however, have embraced the challenges associated with the litigation of this matter, and assert that they already have devoted more than "40,000 attorney hours and 60,000 paralegal hours to this case." Mot. for Fees at 30. The considerable labor already devoted by counsel to the litigation of this matter, and the skill brought to the cases by class counsel, are evident in the comprehensive settlement and case management plan that they have presented to the Court. In attempting to settle this case, class counsel confronted the task not only of securing a much larger amount of funding for distribution to successful plaintiffs, but also of developing and implementing an efficient, reliable, and cost-effective claim detennination process. As the Court's analysis throughout this Opinion should make clear, class counsel, along with counsel for the United States, have succeeded admirably at that task.
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The time and effort invested by class counsel will increase exponentially in the weeks and months to come. After the approval of the settlement agreement, class counsel will be responsible for overseeing the implementation of the claim detennination process and for guiding tens of thousands of claimants through that process. To fulfill those responsibilities, counsel will have to engage in extensive communication with class members, planning and holding "scores of meetings throughout the country" with potential claimants. Mot. for Fees at 29. They will offer legal representation during the claim detennination process,jor no additional jee, to any Track A claimant who requests it. SA, V.A.2. They will coordinate the efforts of the neutrals and respond to any problems that arise during the resolution of claims. And they will respond to any inquiries from the Ombudsman or the Court. All of these activities will require great skill and effort, as well as substantial time.
When they became involved in this litigation, class counsel also assumed a substantial risk that their efforts would never yield much in the way of fees. There has never been any guarantee that Congress would appropriate additional funding for the adjudication and payment of Section 14012 claims. Even after the settlement agreement was executed and legislation to fund it was introduced in Congress, the path to passage and approval of the funding required by the settlement was not easy. See supra at 14. If available funding had remained capped at $100 million, the more than forty attorneys now acting as class counsel would have been left to scramble for any fees that could be eked out of a fund vastly insufficient to pay all claims against it, and the payment of any fees that were forthcoming may have been delayed for years. This litigation was no sure bet for plaintiffs' lawyers.
67

Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 68 of 70
In light of the skill and dedication exhibited by class counsel, the enormous amount of time that they have devoted and will continue to devote to this case, the complexity of this litigation, the risks assumed by counsel, and the very substantial benefits secured by counsel for the class, the Court concludes that a fee within the range of 4.1 to 7.4% of the common fund is fair and reasonable. This conclusion is reinforced by the lack of substantial objections to the fee range set by the settlement agreement. Although numerous individuals have objected to the prospect ofa $90 million award of attorneys' fees, at the high end of the proposed range, none of those individuals has proposed a reasonable alternative measure of fees. Nor have they provided specific reasons that the proposed range is unfair or unreasonable, aside from the fact that the fee award will inevitably reduce the fund available for payments to the class - a necessary and unavoidable result. All of these considerations lead the Court to conclude that the proposed fee range should be approved.
The Court also approves the very modest contingency fees authorized for non-class counsel who, at a claimant's request, wiII represent class members in Track A, and for all attorneys who represent claimants in Track B. See SA ~ X.A. Set at 2% and 8% of the claimant's recovery, respectively. these fees are modest and reflect the necessary balance between compensating attorneys for the services they provide and preserving awards for class members to the extent feasible .
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v. CONCLUSION
Forty acres and a mule. That was the promise made by the government to those fonner slaves who wanted to farm land in the South after the Civil War. As detailed in this Court's opinion in Pigford I, for most AfricanRAmericans the promise of forty acres and a mule was never kept, and the United States Department of Agriculture and the county commissioners to whom it delegated so much power bear much of the responsibility for the broken promise to those African-American farmers and their descendants. Pigford v. Glickman, 185 F.R.D. at 85. In the early 1900's, there were 925,000 African-American farmers in the United States farming 16 million acres of farmland. By the time the Court approved the Pigford I consent decree, there were fewer than 18,000 African-American farms in the United States and African-American fanners owned less than three million acres of land. Id. As the Court said 12 years ago in approving the consent decree,"[n]othing can completely undo the discrimination of the past or restore lost land or lost opportunities" to the many AfricanMAmerican farmers who were part of the Pigford I class. Id. at 112. Historical discrimination cannot be undone, but the Pigford I consent decree was a significant first step, a step that had been a long time coming. And, as described earlier in this Opinion, supra at 9, nearly 16,000 AfricanMAmerican farmers received a total of more than $1 billion through the claims process created by the settlement of that historic case.
Today, because of a Congress that was willing to once again waive the statute of limitations and to appropriate $1.25 billion to help further redress the historic discrimination against African-American farmers, the Court is pleased to approve the settlement agreement proposed by the Moving Plaintiffs, and endorsed by the United States, as fair, reasonable, and
69

Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 70 of 70

adequate. It will also approve the appointment of the neutrals who will participate in the implementation of the agreement. This settlement is the product of extraordinary efforts by private litigants and their counsel, by the Congress, and by the Executive Branch. The Court joins all of those parties in hoping that it wiJ] bring class members the relief to which they are entitled.
An Order and Judgment consistent with this Opinion shall issue this same day. SO ORDERED.

DATE: / 0 / ~ 1011'

Vo-L ;;z'&J .... "'
PAUL L. FRIEDMAN United States District Judge

70

Case 1:08-mc-00511-PLF Document 233 Filed 11/10/11 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

__________________________________________)

Misc. No. 08-0511 (PLF)

ORDER
It is hereby ORDERED that the Court’s Opinion of October 27, 2011, approving
the proposed class action settlement agreement [Dkt. No. 232], is amended in the following
manner:
(1) On page 33 of the Opinion, the first two sentences of Section B (“Method of
Determining Claims”) are deleted and replaced with the following sentence:
Beginning on a date designated by the Court in the Order and Judgment that accompanies this Opinion, members of the plaintiffs’ class will have 180 days — roughly six months — to submit their claims for resolution. See In re Black Farmers Discrimination Litig., Misc. No. 08-0511, Order and Judgment ¶ 17 (D.D.C. Oct. 27, 2011) (“[T]he 180-day claim period specified in the Settlement Agreement shall commence on November 14, 2011 and end on May 11, 2012.”).
(2) On page 34 of the Opinion, in the second line from the top of the page, “id., Ex. C
at 3” is deleted and replaced with “SA, Ex. C at 3”.
SO ORDERED.

DATE: November 10, 2011

/s/_______________________________ PAUL L. FRIEDMAN United States District Judge

 </s> Multiple Documents
Part Description 1 7 pages 2 Memorandum in Support of Motion for Preliminary Approval 3 Exhibit 1 - Proposed Preliminary Approval Order 4 Exhibit 2 - Settlement Agreement 5 Exhibit 3 - Pigford Consent Decree 6 Exhibit 4 - Declaration of Richard Bithell 7 Exhibit 5 - Declaration of Katherine Kinsella and Associated Notice Materials 8 Exhibit 6 - Order of July 14, 2000 9 Exhibit 7 - Qualifications of Epiq Systems, Inc. 10 Exhibit 8 - Qualifications of The McCammon Group 11 Exhibit 9 - Qualifications of Michael Lewis 12 Exhibit 10 - Proposed Ombudsman Order of Appointment 13 Exhibit 11 - Proposed Ombudsman Order of Reference 14 Exhibit 12 - Declaration of Andrew H. Marks 15 Exhibit 13 - Qualifications of Proposed Class Counsel
© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6L0JC3GO2?documentName=188.xml

Case 1:08-mc-00511-PLF Document 161 Filed 03/30/11 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

)

This document relates to:

)

)

ALL CASES

)

)

Misc. No. 08-mc-0511 (PLF)

MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT, CERTIFICATION OF A RULE 23(b)(1)(B)
SETTLEMENT CLASS, AND FOR OTHER PURPOSES

Plaintiffs James Copeland, Earl Moorer (on behalf of the estate of John Moorer), and

Marshallene McNeil on behalf of themselves and the proposed Class they seek to represent,

respectfully move this Court to enter the proposed Order Granting Preliminary Approval of

Settlement Agreement, Certifying a Rule 23(b)(1)(B) Class, and for Other Purposes (“Preliminary Approval Order”) (Ex. 1).1 For the reasons set forth in the accompanying

Memorandum of Points and Authorities, this Court should preliminarily approve the Settlement

Agreement executed on February 18, 2010, and amended by the Parties as of March 23, 2011

(Ex. 2), and enter the proposed Preliminary Approval Order. In addition to preliminarily

approving the Settlement Agreement, the proposed Preliminary Approval Order:

a. Conditionally certifies, for settlement purposes only, a non-opt-out Settlement

Class, pursuant to Federal Rule of Civil Procedure 23(b)(1)(B), defined as follows:

1

Pursuant to Local Rule 7(m), Plaintiffs’ Counsel have conferred with Defendant’s Counsel

regarding this Motion. Defendant’s Counsel has indicated that they do not oppose this Motion and likely

will file a separate paper stating their support for the Settlement Agreement.

Case 1:08-mc-00511-PLF Document 161 Filed 03/30/11 Page 2 of 7

All individuals: (1) who submitted late-filing requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree.2 b. Pursuant to Federal Rule of Civil Procedure 23(e), approves the proposed Notice to the Class and directs its dissemination as set forth in the proposed Notice Program (Ex. 5, Att. 3); c. Designates James Copeland, Earl Moorer, and Marshallene McNeil as Representatives for the Class; d. Pursuant to Federal Rule of Civil Procedure 23(g), designates the firms listed in ¶ 4 of the Preliminary Approval Order as Class Counsel; e. Designates Andrew H. Marks of Crowell & Moring LLP, Henry Sanders of Chestnut, Sanders, Sanders, Pettaway & Campbell, L.L.C., and Gregorio A. Francis of Morgan & Morgan, P.A., as Lead Class Counsel; f. Designates as members of the Plaintiffs’ Steering Committee the counsel so identified in ¶ 4 of the Preliminary Approval Order; g. Designates Epiq Systems, Inc. to serve as Claims Administrator; h. Designates The McCammon Group to serve as the Track A Neutral, and sets forth procedures for the administration of their oath of duty; i. Designates Michael Lewis to serve as the Track B Neutral, and sets forth procedures for the administration of his oath of duty; j. Designates Kinsella Media, LLC to serve as the Notice Provider;

2

The Pigford Consent Decree, entered by this Court on April 14, 1999, is attached as Exhibit 3.

2

Case 1:08-mc-00511-PLF Document 161 Filed 03/30/11 Page 3 of 7
k. Approves the “Cost Cap” as the term is defined in Section II.I of the Settlement Agreement; l. Orders that a “Track A Individual Counsel Fee,” as the term is defined in Section II.II of the Settlement Agreement, may not exceed 2% of a Class Member’s Final Track A Award; m. Orders that a “Track B Fee,” as defined in Section II.QQ of the Settlement Agreement, may not exceed 8% of a Class Member’s Final Track B Award; n. For purposes of Notice, preliminarily approves a “Fee Award,” as defined in Section II.N of the Settlement Agreement, in the range of 4.1% and 7.4% of the total funds appropriated for Section 14012 claims; o. Pursuant to Federal Rule of Civil Procedure 26(c), enters a Protective Order to manage the privacy and use of the Pigford Timely 5(g) List, the Pigford Participants List, and the Pigford Opt-Out List, as those terms are defined in Sections II.BB, II.AA, and II.Z of the Settlement Agreement; p. Schedules a hearing as soon as reasonable to consider whether to finally approve the Settlement Agreement; q. Establishes procedures for the submission of objections to this Settlement Agreement; and r. Establishes other requirements and procedures necessary to the effectuation of the Settlement Agreement.
3

Case 1:08-mc-00511-PLF Document 161 Filed 03/30/11 Page 4 of 7

Respectfully submitted,

/s/ Henry Sanders, Esq. Fayarose Sanders, Esq. CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL, L.L.C. One Union Street Selma, AL 36701 Tel: (334) 875-9264 Fax: (334) 875-9853
/s/ Gregorio A. Francis, Esq. Alphonso Michael Espy, Esq. Scott W. Weinstein, Esq. J. Andrew Meyer, Esq. MORGAN & MORGAN, P.A. 20 North Orange Avenue, Suite 1600 Orlando, FL 32801 Tel: (407) 420-1414
/s/ Marc Boutwell, Esq. Charles Edwards, Esq. LAW OFFICES OF MARC BOUTWELL, PLLC P.O. Box 956 Lexington, MS 39095 Tel: (662) 834-9029 Fax: (662) 834-3117
/s/ Jimmy S. Calton, Jr., Esq. Jimmy S. Calton, Sr., Esq. LAW OFFICES OF CALTON & CALTON 226 East Broad Street Eufaula, AL 36027 Tel: (334) 687-3563 Fax: (334) 687-3564

/s/ Andrew H. Marks, Esq. D.C. Bar No. 932269 Laurel Pyke Malson, Esq. D.C. Bar. No. 317776 Michael W. Lieberman Esq. D.C. Bar No. 988835 CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004 Tel: (202) 624-2920 Fax: (202) 628-5116
/s/ Don O. Gleason, Jr., Esq. Michael McHenry, Esq. GLEASON & MCHENRY P.O. Box 7316 Tupelo, MS 38802 Tel: (662) 690-9824 Fax: (662) 690-9826
/s/ Stephen Gowan, Esq. GOWAN LAW OFFICE, PLLC P.O. Box 38 McAdams, MS 39107 Tel: (662) 290-0042 Fax: (662) 290-0042
/s/ Donald McEachin, Esq. MCEACHIN & GEE LLP 4719 Nine Mile Road Henrico, VA 23223 Tel: (804) 226-4111 Fax: (804) 226-8888

4

Case 1:08-mc-00511-PLF Document 161 Filed 03/30/11 Page 5 of 7

/s/ Walter B. Calton, Esq. Attorney at Law 312 East Broad Street Eufaula, AL 36027 Tel: (334) 687-2407 Fax: (334) 687-2466
/s/ Reed Colfax, Esq., D.C. Bar No. 471430 John P. Relman, Esq. Jennifer Klar, Esq. RELMAN & DANE, PLLC 1225 – 19th Street N.W., Suite 600 Washington, DC 20036-2456 Tel: (202) 728-1888 Fax: (202) 728-0848
/s/ Othello C. Cross, Esq. Jesse L. Kearney, Esq. CROSS & KEARNEY, PLLC 1022 W. 6th Avenue Pine Bluff, AR 71601 Tel: (870) 536-4056 Fax: (870) 536-0216
/s/ James Scott Farrin, Esq. Eric Haase, Esq. LAW OFFICES OF JAMES SCOTT FARRIN 280 South Mangum Street, Suite 400 Durham, NC 27701 Tel: (919) 688-4991 Fax: (919) 688-4468
/s/ Phillip L. Fraas, Esq., D.C. Bar No. 211219 STINSON MORRISON HECKER LLP 1150 – 18th Street, N.W., Suite 800 Washington, DC 20036-3816 Tel: (202) 572-9904 Fax: (202) 572-9982

/s/ Harris L Pogust, Esq. Tobias L. Millrood, Esq. Robert N. Wilkey, Esq. POGUST, BRASLOW & MILLROOD, LLC 161 Washington Street, Suite 1520 Conshohocken, PA 19428 Tel: (610) 941-4204 Fax: (610) 941-4245
/s/ Michael A. Rutland, Esq. RUTLAND & JANKIEWICZ LLC 128 N. Orange Ave. Eufaula, AL 36027 Tel: (334) 687-9899
/s/ Kindaka Sanders, Esq. Attorney at Law 209 Broad St. Selma, AL 36701 Tel: (334) 327-1993 Fax: (334) 460-6611
/s/ Joseph P. Strom, Jr., Esq. Mario A. Pacella, Esq. Bakari Sellers, Esq. STROM LAW FIRM, LLC 2110 N. Beltline Blvd., Suite A Columbia, SC 29204 Tel: (803) 252-4800 Fax: (803) 252-4801
/s/ Anurag Varma, Esq., D.C. Bar No. 471615 Benjamin G. Chew, Esq. Jude Kearney, Esq. Ramona Quillet, Esq. PATTON BOGGS, LLP 2550 M Street, N.W. Washington, DC 20037 Tel: (202) 457-6490 Fax: (202) 457-6315
5

Case 1:08-mc-00511-PLF Document 161 Filed 03/30/11 Page 6 of 7

/s/ David J. Frantz, Esq., D.C. Bar No. 202853 Brian P. Phelan, Esq. CONLON, FRANTZ & PHELAN, LLP 1818 N Street, N.W., Suite 400 Washington, DC 20036 Tel: (202) 331-7050 Fax: (202) 331-9306
/s/ William Lewis Garrison, Esq. William L. Bross, Esq. Gayle L. Douglas, Esq. HENINGER, GARRISON & DAVIS LLC Post Office Box 11310 2224 – 1st Avenue North Birmingham, AL 35202 Tel: (205) 326-3336 Fax: (205) 326-3332
Dated: March 30, 2011

/s/ Timothy K. Lewis, Esq. Ralph G. Wellington, Esq. Bruce P. Merenstein, Esq. SCHNADER HARRISON SEGAL & LEWIS, LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Tel: (202) 419-4216 Fax: (202) 419-3454

6

Case 1:08-mc-00511-PLF Document 161 Filed 03/30/11 Page 7 of 7 CERTIFICATE OF SERVICE
I certify that on March 30, 2011, I filed a copy of this motion via the ECF system, and sent copies by electronic-mail to the counsel of record in the above-referenced case.
/s/ Michael W. Lieberman
7

Case 1:08-mc-00511-PLF Document 161-1 Filed 03/30/11 Page 1 of 73

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

)

This document relates to:

)

)

ALL CASES

)

)

Misc. No. 08-mc-0511 (PLF)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF
SETTLEMENT, CERTIFICATION OF A RULE 23(b)(1)(B) SETTLEMENT CLASS, AND FOR OTHER PURPOSES

Case 1:08-mc-00511-PLF Document 161-1 Filed 03/30/11 Page 2 of 73
TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iv I. INTRODUCTION ...............................................................................................................1 II. FACTUAL AND PROCEDURAL HISTORY ...................................................................3
A. Pigford v. Glickman.................................................................................................3 B. The 2008 Farm Bill..................................................................................................5 C. Litigation of Section 14012 Claims and the February 18, 2010 Settlement
Agreement ................................................................................................................7 D. The Claims Resolution Act of 2010.........................................................................9 III. THE PROPOSED SETTLEMENT ...................................................................................10 A. The Settlement Class..............................................................................................11 B. Notice.....................................................................................................................11 C. The Non-Judicial Claims Process ..........................................................................11 D. Payments to Class Members ..................................................................................18 E. Representation by Counsel in the Claims Process and Fees..................................21 F. Transparency in the Claims Process ......................................................................22 G. Implementation Costs ............................................................................................23 H. Continuing Role of the Court and Ombudsman ....................................................25 I. Accelerations and Foreclosures .............................................................................27 IV. ARGUMENT.....................................................................................................................27 A. The Proposed Settlement is Fair, Reasonable, and Adequate and Should
be Preliminarily Approved by the Court Under Rule 23. ......................................27 1. Legal Standard for Preliminary Approval..................................................28 2. The Settlement Reflects a Fair and Reasonable Compromise
of the Parties’ Positions. ............................................................................29 3. The Settlement Safeguards Against the Risk of Fraud in the Claims
Process. ......................................................................................................34
i

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4. The Settlement was the Product of Extensive Arms-Length Negotiations by Experienced Counsel. ......................................................36
5. The Settlement Provides for Sufficient Funds to Ensure Effective Implementation of the Settlement, While Also Protecting Against Overspending to the Detriment of the Class. .............................................37
6. The Proposed Notice Program is Reasonably Designed to Protect the Interests of Absent Parties....................................................................38
7. The Range of Attorneys’ Fees to Compensate Class Counsel is Reasonable. ................................................................................................42
B. Certification of the Proposed Settlement Class is Appropriate Under Rules 23(a) and 23(b)(1)(B).............................................................................................45 1. The Proposed Class is Sufficiently Definite to Permit Identification of Individual Class Members. .............................................46 2. The Proposed Class and Class Representatives Satisfy the Requirements of Rule 23(a). ................................................................48 3. The Proposed Class Meets the Rule 23(b)(1)(B) Requirements of a “Limited Fund.” .........................................................................................55
C. The Proposed Procedures for Objectors are Fair and Reasonable.........................58 D. The Court Should Enter a Protective Order to Manage the Privacy and Use
of the Pigford Timely 5(g) List, the Pigford Participants List, the Pigford Opt-Out List, and Other Materials Disclosed to Class Counsel Under Sections VIII.A.3 and VIII.A.4 of the Settlement Agreement...............................60 V. CONCLUSION AND REQUEST FOR HEARING .........................................................62
EXHIBITS
Exhibit 1 – Proposed Preliminary Approval Order
Exhibit 2 – Settlement Agreement
Exhibit 3 – Pigford Consent Decree
Exhibit 4 – Declaration of Richard Bithell
Exhibit 5 – Declaration of Katherine Kinsella (Proposed Notice Provider) and Notice Materials
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Attachment 1 – Selected Kinsella Media Cases Attachment 2 – Selected Judicial Comments Attachment 3 – Notice Program
NP Appendix 1 – Newspapers by Designated Market Area (DMA) NP Appendix 2 – Radio Stations NP Appendix 3 – Newspapers Carrying American Profile Supplement NP Appendix 4 – Postcard Notice NP Appendix 5 – Long Form Notice NP Appendix 6 – Publication Notice NP Appendix 7 – Radio Ad Script NP Appendix 8 – Public Service Announcements Script Exhibit 6 – Order of July 14, 2000 Exhibit 7 – Qualifications of Epiq Systems, Inc. (Proposed Claims Administrator) Exhibit 8 – Qualifications of The McCammon Group (Proposed Track A Neutral) Exhibit 9 – Qualifications of Michael Lewis (Proposed Track B Neutral) Exhibit 10 – Proposed Ombudsman Order of Appointment Exhibit 11 – Proposed Ombudsman Order of Reference Exhibit 12 – Declaration of Andrew H. Marks Exhibit 13 – Qualifications of Proposed Class Counsel
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TABLE OF AUTHORITIES

CASES

Page(s)

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).................................................................................................................51

Berry v. Sch. Dist. of the City of Benton Harbor, 184 F.R.D. 93 (W.D. Mich. 1998) ...........................................................................................26

Blackman v. Dist. of Columbia, 454 F. Supp. 2d 1 (D.D.C. 2006) .................................................................................28, 30, 36

Bynum v. Dist. of Columbia, 214 F.R.D. 27, 31 (D.D.C. 2003).............................................................................................46

Bynum v. Govt. of Dist. of Columbia, 384 F. Supp. 2d 342 (D.D.C. 2005) .........................................................................................59

Cullen v. Whitman Medical Corp., 197 F.R.D. 136 (E.D. Pa. 2000)...............................................................................................26

Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9, 25 (D.D.C. 2006) ....................................49

Equal Rights Center v. Wash. Metro. Area Transit Auth., 573 F. Supp. 2d 205, 211 (D.D.C. 2008) .....................................................................29, 36, 37

Forbush v. J.C. Penney, Inc., 994 F.2d 1101 (5th Cir. 1993) .................................................................................................49

Gen. Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982).................................................................................................................51

In re Agent Orange Prod. Liab. Litig., 100 F.R.D. 718 (E.D.N.Y. 1983) .............................................................................................57

In re Baan Co. Sec. Litig., 284 F. Supp. 2d 62, 67 (D.D.C. 2003) .....................................................................................39

In re Baan Co. Sec. Litig., 288 F. Supp. 2d 14, 16 (D.D.C. 2003) .....................................................................................44

In re Joint E. & S. Districts Asbestos Litig. 878 F. Supp. 473 (E.D.N.Y. 1995) ..........................................................................................49

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In re Lorazepam & Clorazepate Antitrust Litig., Civ. No. 99-0790, 2003 U.S. Dist. LEXIS 12344, at *30-31 (D.D.C. June 16, 2003)............................................................................................44
In re Peterson, 253 U.S. 300 (1920).................................................................................................................26
In re Shell Oil Refinery, 155 F.R.D. 552 (E.D. La. 1993)...............................................................................................28
In re Vitamins Antitrust Litig., 209 F.R.D. 251 (D.D.C. 2002).................................................................................................50
In re Vitamins Antitrust Litig., 305 F. Supp. 2d 100, 104 (D.D.C. 2004) .....................................................................29, 36, 37
In re Vitamins Antitrust Litig., Misc. No. 99-197, 1999 U.S. Dist. LEXIS 21963 (D.D.C. Nov. 23, 1999) ......................28, 44
Johnson v. Dist. of Columbia, 248 F.R.D. 46 (D.D.C. 2008).............................................................................................51, 54
Larionoff v. United States, 533 F.2d 1167, 1186 (D.C. Cir. 1976) aff’d, 431 U.S. 864 (1977) .......................................................................................................38
Lindsay v. Gov’t Employees Ins. Co., 251 F.R.D. 51, 55 (D.D.C. 2008).......................................................................................49, 51
Littlewolf v. Hodel, 681 F. Supp. 929 (D.D.C. 1988) aff’d sub nom. Littlewolf v. Lujan, 877 F.2d 1058 (D.C. Cir. 1989)........................................50
Murthy v. Schafer, 579 F. Supp. 2d 110 (D.D.C. 2008) .........................................................................................59
Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)...............................................................................................45, 56, 57, 58
Osher v. SCA Realty, 945 F. Supp. 298, 304 (D.D.C. 1996) ......................................................................................29
Pendleton v. Rumsfeld, 628 F.2d 102 (D.C. Cir. 1980) .................................................................................................49
Pendleton v. Schlesinger, 73 F.R.D. 506 (D.D.C. 1977)...................................................................................................49
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Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999).........................................................................................3, 27, 29
Pigford v. Glickmann, 182 F.R.D. 341 (D.D.C. 1998).................................................................................................46
Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982) amended in part, reh’g denied in part on other ground, 688 F.2d 266 (5th Cir. 1982) .............................................................................................25, 26
Schwimmer v. United States, 232 F.2d 855 (8th Cir. 1956) ...................................................................................................26
Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981) ...........................................................................................46
Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370 (9th Cir. 1993) .....................................................................................................59
Vista Healthplan, Inc. v. Warner Holdings Co. III, Ltd., 246 F.R.D. 349, 360 (D.D.C. 2007)...................................................................................29, 36
Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 114 (2d Cir. 2005), cert. denied, 544 U.S. 1044 (2005)..........................................................................................39
STATUTES
Administrative Procedure Act, 5 U.S.C. § 706 (2006) ................................................................................................................3
Claims Resolution Act of 2010.............................................................................................. passim
Equal Credit Opportunity Act, 15 U.S.C. § 1691(a) (2006)..................................................................................................3, 33
Food, Conservation, and Energy Act of 2008........................................................................ passim
Pub. L. No. 110-246, 122 Stat. 1664 (June 18, 2008) ..................................................................................................5
RULES
Fed. R. Civ. P. 11...........................................................................................................................35
Fed. R. Civ. P. 23(a) ................................................................................................................10, 45
Fed. R. Civ. P. 23(a)(3)..................................................................................................................53
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Fed. R. Civ. P. 23(a)(4)............................................................................................................53, 54 Fed. R. Civ. P. 23(b)(1)..................................................................................................................38 Fed. R. Civ. P. 23(b)(1)(B) ......................................................................................................10, 45 Fed. R. Civ. P. 23(b)(3)..................................................................................................................38 Fed. R. Civ. P. 23(c)(2)(A) ............................................................................................................38 Fed. R. Civ. P. 23(c)(2)(B) ......................................................................................................38, 39 Fed. R. Civ. P. 23(e) ......................................................................................................................58 Fed. R. Civ. P. 23(e)(1)..................................................................................................................38 Fed. R. Civ. P. 23(e)(3)..................................................................................................................43 Fed. R. Civ. P. 23(g) ......................................................................................................................54 Fed. R. Civ. P. 23(g)(1)..................................................................................................................54 Fed. R. Civ. P. 23(g)(4)..................................................................................................................54 OTHER AUTHORITIES Manual for Complex Litigation (Fourth), §§ 13.14, 21.6632 (2004) ......................................28, 29
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I. INTRODUCTION Twelve years ago, this Court approved a historic settlement of the Pigford v. Glickman
class action, which sought relief on behalf of a class of African American farmers against whom “the [U.S.] Department of Agriculture and its county commissioners [had] discriminated . . . when they denied, delayed or otherwise frustrated the applications of those farmers for farm loans and other credit and benefit programs.” 185 F.R.D. 82, 85 (D.D.C. 1999) aff’d, 206 F.3d 1212 (D.C. Cir. 2000).
The Consent Decree approved by the Court in Pigford created a non-judicial claims adjudication process intended to resolve, on a class basis, the individual claims of discrimination between January 1, 1981 and December 31, 1996 brought by African American farmers and prospective farmers against the U.S. Department of Agriculture (“USDA”), and provided monetary relief to compensate affected claimants for the discrimination they suffered. See Ex. 3, Consent Decree. More than 22,000 Pigford claimants had their claims adjudicated under the Consent Decree; of these, 69% were found to be meritorious, and awards of more than $1 billion were paid in compensation to successful claimants.1
Contrary to the hopes of all involved, however, the Consent Decree in Pigford did not achieve justice for everyone that it was intended to reach. After the claim deadline in the Consent Decree had passed, more than 66,000 additional petitions were submitted by claimants seeking to participate in Pigford – nearly three times the number actually adjudicated. See Ex. 4, Declaration of Richard Bithell (June 4, 2009) (“Bithell Decl.”), ¶ 7. Because these petitions were filed late, most of these “late-filing” petitioners were unable to participate in the Pigford claims process and, thus, never had their individual discrimination claims determined on the

1

See Office of the Monitor, National Statistics Regarding Pigford v. Vilsack Track A

Implementation as of March 10, 2011, http://www.pigfordmonitor.org/stats/.

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merits.2 Given the extraordinarily large number of late filers, Congress was not satisfied that all potentially deserving victims of discrimination by USDA had been given a full opportunity to have their Pigford claims determined on the merits. As a result, on June 18, 2008, Congress passed and the President signed into law the Food, Conservation, and Energy Act of 2008 (“Farm Bill”),3 Section 14012 of which created a new “remedial” cause of action designed to “giv[e] a full determination on the merits for each Pigford claim previously denied that determination.” Farm Bill § 14012(d).
The Settlement Agreement (Ex. 2) that is the subject of this Motion would bring final resolution, on a class basis, to claims under Section 14012 of the Farm Bill. In doing so, it will put in place a process to complete the remedial effort initiated by the Pigford Consent Decree more than a decade ago. The Agreement establishes a streamlined non-judicial claims process – similar to that established by the 1999 Pigford Consent Decree – whereby Class Members can obtain the determination on the merits of their discrimination claims that they were unable to obtain in the Pigford case. Successful claimants will receive cash payments from the $1.25 billion provided by Congress to fund this Settlement,4 which, in addition to compensating claimants who prevail in the claims determination process, must also be used to pay the costs of implementing the claims process, the costs of an Ombudsman to assist the Court in carrying out its oversight function, and Class Counsel fees. To enable this result, the Settlement provides for the certification of a non-opt-out “limited fund” class pursuant to Federal Rule of Civil

2

Some “late-filing” petitioners were found to have met the stringent requirement set out in Section

5(g) of the Consent Decree that “ late-filed” claims would be considered only upon a showing by the

petitioner that the claim was filed late due to “extraordinary circumstances beyond his [or her] control.”

Ex. 3, Consent Decree § 5(g).

3

Pub. L. No. 110-246, 122 Stat. 1651, 2209 (2008).

4

Availability of these funds is contingent upon this Court’s approval of this Settlement. Claims

Resolution Act, Pub. L. No. 111-291, §§ 201(a)-(b), 124 Stat. 3064, 3070 ( 2010).

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Procedure 23(b)(1)(B), providing USDA with the global and final resolution of Pigford claims it has long sought.
The Settlement before this Court is the culmination of nearly three years of litigation and intensive negotiation between the Parties, and many more years of Legislative and Executive Branch advocacy by black farmer organizations and others on behalf of those farmers and prospective farmers who allege they were the victims of USDA loan discrimination, but who did not have their claims resolved under the Pigford Consent Decree. Plaintiffs5 believe this Settlement is a landmark achievement in the struggle for civil rights in the United States, and a fitting end of the path toward justice carved by this Court in Pigford more than a decade ago. We urge this Court to approve the Settlement, certify the proposed Settlement Class, and enter the Preliminary Approval Order (Ex. 1) directing Notice (Ex. 5) to putative Class Members and providing other relief. II. FACTUAL AND PROCEDURAL HISTORY
A. Pigford v. Glickman In 1997, African American farmers and prospective farmers brought a class action
against the U.S. Department of Agriculture, alleging, inter alia, discrimination against them by USDA in the administration of farm programs, in violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691(a) (2006), and the Administrative Procedure Act, 5 U.S.C. § 706 (2006). The Court is well acquainted with that litigation, and a detailed recitation of the case history can be found in Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999). Pigford ultimately was settled, a class was certified, and on April 14, 1999, this Court entered a Consent Decree, which, inter alia,

5

Named Plaintiffs are James Copeland, Earl Moorer (on behalf of the Estate of John Moorer), and

Marshallene McNeil.

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established a claims adjudication process by which class members could seek resolution of their discrimination claims. Ex. 3, Consent Decree at §§ 5, 9-10.
The Pigford claims adjudication process provided two “tracks” by which African American farmers and prospective farmers could present their claims for resolution. The first, “Track A,” prescribed a streamlined process whereby claimants whose claim met a “substantial evidence” burden of proof could obtain a liquidated damages award of $50,000, discharge of the principal amount of outstanding debt to USDA that was incurred under, or affected by, the loan program that formed the basis of their discrimination claims, and an additional 25% payment to offset taxes on this income. Id. at § 9(a). The second track, “Track B,” provided for a full evidentiary hearing on each discrimination claim and permitted recovery of actual economic losses, upon proof – by the more rigorous “preponderance of the evidence” standard – that the claimant had been discriminated against by USDA and suffered economic losses in the amounts claimed. Id. at § 10.
Under the terms of the Consent Decree, Pigford class members were required to file their claims with the Facilitator by October 12, 1999. Id. at § 5(c). That deadline could be extended, but only upon a showing by the claimant that the failure to submit a timely claim was due to “extraordinary circumstances beyond [the claimant’s] control.” Id. at § 5(g). By Court Order, the deadline for all such “late-filing” requests was set at September 15, 2000. See Ex. 6, Order of July 14, 2000, ¶ 2.
Of the nearly 61,000 “Late Filers” who submitted a request to participate in the Pigford claims resolution process after the October 12, 1999 deadline set by the Consent Decree but on or before the September 15, 2000 “late-filing” deadline, more than 58,000 were determined not to have satisfied the “extraordinary circumstances” test set by the Court. Ex. 4, Bithell Decl. ¶ 6. In addition, 7,911 individuals (so-called “Late-Late Filers”) filed their “late-filing” request to
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participate in the Pigford claims resolution process after the September 15, 2000 deadline, but before passage of the Farm Bill on June 18, 2008.6 Id. at ¶ 7. Thus, altogether, more than 66,000 Pigford claimants with potentially meritorious claims did not have their individual claims heard on the merits. Id. at ¶ 10.
B. The 2008 Farm Bill As noted above, the Farm Bill was signed into law on June 18, 2008.7 Section 14012 of
this Act creates a new cause of action for “any Pigford claimant who ha[d] not previously obtained a determination on the merits of a Pigford claim” to “obtain that determination . . . in a civil action brought in the United States District Court for the District of Columbia . . . .” Farm Bill § 14012(b). The term “Pigford claimant” is defined as “an individual who submitted a latefiling request under section 5(g) of the [Pigford] [C]onsent [D]ecree.” Farm Bill § 14012(a)(4). Section 14012(d) further provides that the Act should be “liberally construed so as to effectuate its remedial purpose of giving a full determination on the merits for each Pigford claim previously denied that determination.”
As with the Pigford Consent Decree, Section 14012 provides for two “tracks” by which claimants could obtain a determination of the merits of their discrimination claims: (1) an “expedited resolution[]” process, similar to Track A in the Pigford case, wherein claimants who proved the merits of their claims by “substantial evidence” would be awarded liquidated damages of $50,000, a discharge of certain outstanding debt owed to USDA, and a tax payment

6

Not included in this figure are an additional 17,515 individuals who submitted “form letters

discussing the Consent Decree which could be construed as late filing requests.” Ex. 4, Bithell Decl. ¶ 7.

Some of these individuals, depending on the content of their “form letters,” may meet the criteria

proposed here for Class Membership and thus may be eligible to file claims in this case.

7

Although the Farm Bill was originally passed on May 22, 2008, see Pub. L. No. 110-234, 122

Stat. 923, it was repealed due to technical deficiencies and re-enacted in full on June 18, 2008. See Pub.

L. No. 110-246, 122 Stat. 1664.

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equal to 25% of the liquidated damages and loan principal discharged, Farm Bill § 14012(f); and (2) a process similar to Track B in the Pigford case, wherein claimants who satisfy the higher preponderance of the evidence standard of proof for their claims would be awarded their actual damages. Farm Bill § 14012(g). And, as in the Pigford Consent Decree, Section 14012 limits loan acceleration and foreclosures during the pendency of a Section 14012 claim. Compare Farm Bill § 14012(h) with Ex. 3, Consent Decree § 7.
There are, however, significant differences between the remedial process established by the Pigford Consent Decree and that provided for by Section 14012. First, and most significant, is the limitation on funds available for “payments and debt relief” under Section 14012. While the Pigford claims resolved under the Consent Decree were paid from the Judgment Fund,8 and without any limitation on the total amount of claims paid, claims resolved pursuant to Section 14012 are to be paid solely from funds appropriated to the Commodity Credit Corporation, and, under the Farm Bill, were initially limited to a total of $100 million. Farm Bill §§ 14012(c)(2), 14012(i)(1). The Farm Bill anticipated, however, the possibility that additional funds could be appropriated to pay Section 14012 claims by “authorizing to be appropriated such [additional] sums as are necessary to carry out [Section 14012].” Id. at § 14012(i)(2).
Second, the Pigford Consent Decree required USDA to pay the costs of implementing the Decree (including the cost of the Pigford Facilitator, neutral adjudicators, and class notice), the cost of the Pigford Monitor, and attorneys’ fees from funds separate from those paid out from the Judgment Fund as awards to claimants. See Consent Decree §§ 3(b), 9(c), 10(k), 12(a), 14. Section 14012 of the Farm Bill, by contrast, is silent as to an extrajudicial claims resolution process, or any separate funding for such an approach. Thus, any funding for Notice, Neutrals,

8

31 U.S.C. § 1304 (2006).

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or other components of an extrajudicial claims process, in addition to Ombudsman Costs and attorneys’ fees, must be paid out of the same “limited fund” available to pay meritorious claims. See Farm Bill §§ 14012(c)(2), 14012(i)(1).
Finally, the Pigford Consent Decree required claimants to show that they received less favorable treatment from USDA than a “specifically identified, similarly situated white farmer,” in order to obtain relief. See Ex. 3, Consent Decree § 9(a)(i)(C). This requirement was made less burdensome for Section 14012 claimants by a statutory requirement that USDA provide claimants with information “on farm credit loans and noncredit benefits, as appropriate, made within the claimant’s county” during the relevant time period of the claim. Farm Bill § 14012(e). This requirement essentially mandated that USDA provide Section 14012 claimants with the “similarly-situated white farmer” data they would need to make this showing. Compliance with this requirement, absent a settlement, would have imposed significant costs and administrative burdens on USDA.9
C. Litigation of Section 14012 Claims and the February 18, 2010 Settlement Agreement
From enactment of the Farm Bill in June 2008 through February 2010, more than 28,000 putative Class Members, represented by twenty-five different law firms, and in 17 separate complaints, filed suit in this Court under Section 14012.10 These complaints were consolidated

9

The 2010 Claims Resolution Act deleted § 14012(e) of the Farm Bill.

10

The seventeen complaints, in order of filing, are:

a. Agee v. Schafer, C.A. No. 08-0882;

b. Kimbrough v. Schafer, C.A. No. 08-0901;

c. Adams v. Schafer, C.A. No. 08-0919;

d. National Black Farmers Association v. Schafer, C.A. No. 08-00940;

e. Bennett v. Schafer, C.A. No. 08-00962;

f.

McKinney v. Schafer, C.A. No. 08-1062;

g. Bolton v. Schafer, C.A. No. 08-1070;

h. Black Farmers and Agriculturists Association, Inc v. Schafer, C.A. No. 08-1188;

i.

Hampton v. Schafer, C.A. No. 08-1381;

(continued . . .)

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by this Court into the above-captioned case, In re Black Farmers Discrimination Litig., Misc. No. 08-mc-0511 (D.D.C. 2008).11
For the better part of two years, counsel for the Plaintiffs in those actions and counsel for the Secretary vigorously litigated In re Black Farmers Discrimination Litig., including extensive briefing on class certification, coordination of case management, and intensive, arms-length settlement negotiations. These efforts culminated in the execution of a comprehensive Settlement Agreement on February 18, 2010, which proposed a process to resolve finally and globally all Section 14012 cases through certification of a Rule 23(b)(1)(B) “limited fund” settlement class. The Settlement, however, was premised on the appropriation by Congress of an additional $1.15 billion (additional to the $100 million previously appropriated by the Farm Bill) to pay meritorious claims and cover implementation costs and attorneys’ fees.12

(continued)

j.

Robinson v. Schafer, C.A. No. 08-1513;

k. James v. Schafer, C.A. No. 08-2220;

l.

Beckley v. Vilsack, C.A. No. 09-1019;

m. Sanders v. Vilsack, C.A. No. 09-1318 (dismissed for lack of service);

n. Russell v. Vilsack, C.A. No. 09-1323;

o. Bridgeforth v. Vilsack, C.A. No. 09-1401;

p. Allen v. Vilsack, C.A. No. 09-1422; and

q. Anderson, v. Vilsack, C.A. No. 09-1507.

11

Since February 18, 2010, the following six additional complaints have been filed in this Court:

a. Edwards v. Vilsack, C.A. No. 10-0465;

b. Latham v. Vilsack, C.A. No. 10-0737;

c. Andrews v. Vilsack, C.A. No. 10-0801;

d. Johnson v. Vilsack, C.A. No. 10-0839;

e. Abney v. Vilsack, C.A. No. 10-1026; and

f.

Sanders v. Vilsack, C.A. No. 10-1053.

Together with amendments to the earlier 17 filed complaints, these complaints have added more than 19,000 additional claimants to this case.

12

The February 18, 2010 Settlement Agreement contained mutual voidability provisions through

which Plaintiffs could void the Agreement for a limited period of time if Congress appropriated less than

$1.25 billion in total to pay Section 14012 claims, and the Secretary could void the Agreement if

Congress appropriated more than $1.25 billion in total. See Agreement § XI With the passage of the

Claims Resolution Act of 2010, which included an appropriation of $1.15 billion in addition to the $100

(continued . . .)

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D. The Claims Resolution Act of 2010 Following the execution of the Settlement Agreement on February 18, 2010, Plaintiffs
and their counsel turned their efforts toward advocating for Congress to satisfy the funding contingency of the Settlement, and thus provide additional funding sufficient to afford meaningful relief for Pigford claimants with meritorious claims. These extensive advocacy efforts included, inter alia, numerous briefings and discussions over many months with Members of Congress and their staffs.
After several attempts to appropriate additional funds fell short, Congress, on November 30, 2010, finally passed the Claims Resolution Act of 2010 (“CRA”) to provide an additional $1.15 billion to fund this proposed Settlement. This Act, which the President signed into law on December 8, 2010, specifically provides that these additional funds are intended “to carry out the terms of the Settlement Agreement,” and their availability is expressly conditioned on the “[S]ettlement [A]greement dated February 18, 2010 (including any modifications agreed to by the parties and approved by the court under that agreement) […] [being] approved by a court order that is or becomes final and nonappealable.” CRA §§ 201(a)-(b).
The language of the Act makes clear that the additional $1.15 billion that was appropriated is the maximum amount of funds that will be appropriated for the payment of Section 14012 claims. Specifically, the Act deleted two sections of the Farm Bill: Section 14012(i)(2), which had “authorized to be appropriated such [additional] sums as are necessary to carry out [Section 14012],” and Section 14012(j), which required a report after 75% of the initial
(continued) million appropriated in the 2008 Farm Bill, the total funding for the Settlement reached the $1.25 billion level, thus mooting Plaintiffs’ voidability right. Accordingly, the clause providing Plaintiffs with the right to void the settlement for insufficient funding has been deleted in the revised Settlement Agreement.
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$100 million had been depleted, presumably so that Congress could determine whether additional appropriations were warranted. CRA §§ 201(f)(4)(B), (f)(5).
The Claims Resolution Act also includes several provisions aimed at safeguarding the claims process against potential fraud. For example, the Act requires, inter alia, that: (1) the Neutrals be approved by the Secretary of Agriculture, the Attorney General, and the Court, and be administered “oaths of office” by the Court before adjudicating claims; (2) the Neutrals be authorized under certain conditions to require claimants to provide additional documentation; (3) attorneys filing claims on behalf of claimants certify under oath that the claims they submit “are supported by existing law and the factual contentions have evidentiary support”; and (4) the Government Accountability Office and the USDA Inspector General undertake certain reviews and/or audits relating to the claims process. CRA §§ 201(g)-(h). III. THE PROPOSED SETTLEMENT
The Settlement proposed here is the product of significant compromises by both sides. The result is an Agreement that carefully balances the Parties’ respective interests in a fair and equitable recovery for deserving claimants, an expeditious process with integrity and safeguards to deter fraud, and a global and final resolution of all Section 14012 claims. The Settlement Agreement, modeled in large part on the Pigford Consent Decree, is attached in full as Exhibit 2 to this Motion. For the reasons set forth below, Plaintiffs believe that the proposed Settlement is fair, adequate, and reasonable, and readily satisfies the criteria for preliminary approval and class certification under Rules 23(a) and 23(b)(1)(B) of the Federal Rules of Civil Procedure.
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A. The Settlement Class The proposed Settlement Class is a Rule 23(b)(1)(B), non-opt-out class, defined as: All individuals: (1) who submitted Late-Filing Requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree.
Agreement § III.A. This Class is ascertainable and readily meets the requirements of Rule 23(a) and 23(b)(1)(B). It also clearly tracks the remedial purpose of Section 14012 of the Farm Bill, which was to “giv[e] a full determination on the merits for each Pigford claim previously denied that determination.” Farm Bill § 14012(d). Class Membership under the Settlement will be determined by the Claims Administrator at the outset of the Non-Judicial Claims process.13 Agreement § V.B.4.
B. Notice The proposed Settlement provides for Notice to the Class, and authorizes payment for the
dissemination of such Notice, upon Court approval, as an Implementation Cost. Agreement § II.R. Class Counsel have contracted with Kinsella Media, LLC (“Kinsella”) to serve as the Notice Provider, subject to this Court’s approval. A copy of Kinsella’s proposed Notice Program is included as Attachment 3 to Exhibit 5. A complete discussion of the Notice Program is set forth in Section IV.A.6, infra.
C. The Non-Judicial Claims Process 1. The Claims Administrator and the Track A and B Neutrals
Similar to the process followed under the Pigford Consent Decree, a Claims Administrator will be responsible for the administration of the claims process for this Settlement.

13

The criteria used by the Claims Administrator in making this determination are described in

Section III.C.3 infra.

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Subject to this Court’s approval, Plaintiffs have selected Epiq Systems, Inc. (“Epiq”) (formerly known as Poorman-Douglas Corporation), which previously served as the Facilitator in Pigford, to serve as the Claims Administrator. To adjudicate the claims submitted by Class Members under the Settlement Agreement, Plaintiffs have selected The McCammon Group to serve as the Track A Neutral, and Michael Lewis of JAMS to serve as the Track B Neutral. Attached as Exhibits 7, 8, and 9 are the qualifications of Epiq, The McCammon Group, and Michael Lewis respectively, reflecting their experience and suitability for these roles.
To ensure fairness and prevent fraud in the claims process, Congress has required, and the parties have adopted, language in the Settlement Agreement providing that the Neutrals be approved by the Secretary of Agriculture and Attorney General, as well as by the Court. See CRA § 201(g)(1)(B)(ii); Agreement §§ II.JJ, II.RR. Plaintiffs have advised the Secretary and the Attorney General that Plaintiffs are proposing The McCammon Group and Mr. Lewis as Neutrals. The Secretary and the Attorney General are in the process of reviewing the qualifications of both proposed Neutrals, but have not yet determined whether to approve their appointments as Track A Neutral and Track B Neutral respectively. If appointed, each Neutral, as contemplated by Section 201(g)(2) of the Claims Resolution Act, will take “an oath administered by the Court that he or she will determine each claim faithfully, fairly, and to the best of his or her ability.” Agreement §§ II.JJ, II.RR.
2. Submission of Claims to the Non-Judicial Claims Process To participate in the Claims Process under the Settlement Agreement, claimants must prepare and submit a Complete Claim Package by the Claim Deadline, which is 180 days from Final Approval of the Settlement. Agreement §§ II.D, V.A.1. A Complete Claim Package includes the following:
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(1) A completed Claim Form . . . , including the claimant’s declaration, under penalty of perjury, that each of the statements provided by the claimant is true and correct;
(2) For a Track A claimant who seeks a Track A Loan Award, a statement that the claimant seeks such an award and an executed Authorization to Disclose Debt Information Form;
(3) A declaration by the claimant’s counsel, whether Class Counsel or Individual Counsel, made under penalty of perjury, that to the best of the attorney’s knowledge, information, and belief formed after an inquiry reasonable under the circumstances, the claim is supported by existing law and the factual contentions have evidentiary support. For claimants proceeding without counsel, the declaration on the Claim Form . . . is sufficient to satisfy this requirement;
(4) For a claimant who is deceased: (a) a death certificate and (b) either (i) proof of legal representation, or (ii) a sworn statement describing why the submitting individual believes he or she will be appointed the legal representative of the claimant’s estate; and
(5) For a claimant unable to submit a claim on his or her own behalf due to a physical or mental limitation: (a) proof of legal representation or (b) a sworn statement describing why the claimant is unable to submit a claim on his or her own behalf and why the submitting individual asserts a right to do so on the claimant’s behalf.
Agreement § V.A.1.
Upon receipt, the Claims Administrator will review each Claim Package for
“completeness” and “timeliness.” If the Claims Administrator determines the submission to be
incomplete, it promptly will notify the claimant of the deficiencies and provide 30 days in which
to cure; if the Claims Administrator determines the submission to be untimely, it will promptly
notify the claimant that his or her claim is denied because it was filed after the Claim Deadline.
Id. §§ V.B.1, V.B.2, V.B.3.
3. Class Membership Determination
Once determined to be timely and complete, each Claim Package will be reviewed by the
Claims Administrator to determine whether the claimant is a Class Member. Id. § V.B.4. To 13
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qualify as a Class Member, a claimant must demonstrate that he or she meets both prongs of the Class definition by a “preponderance of the evidence” standard. Id. To satisfy the first prong, a claimant must show that he or she filed a “late-filing request,” seeking to participate in the Pigford claims process, on or after October 13, 1999 and on or before June 18, 2008. A “latefiling request” is defined by the Agreement as “a written request to the Court, the Pigford Facilitator,14 the Pigford Monitor,15 the Pigford Adjudicator,16 or the Pigford Arbitrator17 seeking to participate in the claims resolution processes in the Pigford Consent Decree.” Agreement § II.T. Claimants whose names are listed on the Pigford Timely 5(g) List, a list maintained by the Pigford Facilitator that identifies “Late Filers” – i.e., those claimants who petitioned to file Pigford claims on or after October 13, 1999 and on or before September 15, 2000 – are presumed to satisfy this first prong. Id. §§ II.BB, V.B.4.a. Claimants whose names do not appear on the Facilitator’s “Pigford Timely 5(g) List” must satisfy the Claims Administrator, through independent documentary evidence, that he or she submitted a late-filing request on or after October 13, 1999 and on or before June 18, 2008. Id. § V.B.4.a.
The second requirement for Class Membership – that the claimant did not obtain a determination on the merits of his or her Pigford claim – is satisfied if the Claims Administrator determines that the claimant is not on either of two lists maintained by the Pigford Facilitator:

14

The “Pigford Facilitator” is Epiq Systems, Inc., formerly known as Poorman-Douglas

Corporation.

15

The “Pigford Monitor” is Randi I. Roth, the independent Monitor appointed by the Court

pursuant to Section 12 of the Pigford Consent Decree.

16

The “Pigford Adjudicator” is the Adjudicator referenced in Section 1(a) of the Pigford Consent

Decree.

17

The “Pigford Arbitrator” is the Arbitrator referenced in Section 1(b) of the Pigford Consent

Decree.

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(1) the Pigford Participants List, which identifies both those individuals who filed timely Pigford claims and those whose late-filing requests to participate were granted in Pigford; or (2) the Pigford Opt-Out List, which identifies those individuals who opted out of the Pigford settlement and the remedial process set out in the Consent Decree. Id. §§ II.Z, II.AA, V.B.4.b. Also excluded from the Class under this prong would be any claimant who “has obtained a judgment from a judicial or administrative forum on the basis of the race discrimination claim that provides the basis of the [c]laimant’s discrimination complaint.” Id. § V.B.4.b.18
Claimants that the Claims Administrator determines not to be Class Members will be informed by the Claims Administrator of that determination, which the Agreement provides will be final and unreviewable. Id. § V.B.5. Claimants who meet the requirements for Class Membership will have their claims forwarded by the Claims Administrator to an appropriate Neutral for consideration on the merits. Id. §§ V.B.8, V.B.9.
4. Merits Determination Claimants under this Settlement must elect on their Claim Form to proceed under either Track A or Track B. A claimant’s election to proceed under Track A is final and irreversible; claimants who elect Track B may change to Track A up to 30 days after notice by the Claims Administrator of the total number of Track B claimants, which will be provided shortly after the Claim Deadline.19 Id. §§ V.A.6, V.B.7. Under the terms of the Agreement, USDA will not oppose the claims. Id. § V.A.9.

18

Upon request by a claimant, or any individual counsel retained by a claimant, Class Counsel will

verify a Claimant’s presence on the Pigford Timely 5(g) List, the Pigford Participants List, or the Pigford

Opt-Out List. Id. § VIII.A.4.

19

Track B claimants are offered the opportunity to change from Track B to Track A because the

aggregate sum of Track B Awards is capped at $100 million. Id. § II.PP. Because of this Track B Cap,

there is the possibility that a successful Track B claimant’s award would be reduced if the total aggregate

of Track B awards exceeds $100 million. Id. § V.E.5.a.; Appx. 1, § I.A.1. The opportunity to change to

Track A once the total number of Track B claimants is known will allow a Track B claimant to make an

(continued . . .)

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Track A claims will be reviewed by the Track A Neutral to determine whether the
claimant has established, by substantial evidence, that:
(1) The Class Member is an African American who farmed, or attempted to farm, between January 1, 1981, and December 31, 1996;
(2) The Class Member owned or leased, or attempted to own or lease, farm land;
(3) The Class Member applied, or constructively applied, for a specific farm credit transaction(s) or non-credit benefit(s) at a USDA office between January 1, 1981, and December 31, 1996;
(4) For claimants who applied – i.e., not constructively applied – for a specific farm credit transaction(s) or non-credit benefit(s), the farm loan(s) or noncredit benefit(s) for which the Class Member applied was denied, provided late, approved for a lesser amount than requested, encumbered by a restrictive condition(s), or USDA failed to provide an appropriate loan service(s);
(5) USDA’s treatment of the loan or non-credit benefit application(s) or constructive application(s) led to economic damage to the Class Member; and
(6) The Class Member complained of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of him or her in response to the application(s).
Id. § V.C.1.20 Successful claimants are entitled to a Track A Award, which, for credit claims,
includes (a) up to a $50,000 liquidated damages award, (b) a payment in recognition of the debt
outstanding on USDA loans that form the basis of the Pigford claim,21 and (c) a tax payment
worth 25% of the liquidated damages award and 25% of the principal amount of the loan award.

(continued)

informed choice about whether and to what extent the $100 million limitation could affect his or her award.

20

Under the Agreement, claimants may meet this burden with their sworn statements in the Claim

Form if, upon full review by the Track A Neutral of the supporting details, such statements are

determined to be credible.

21

To facilitate this calculation, USDA is required, upon authorization by the claimant, to provide

information regarding the payoff amounts and balances for each Claimant’s outstanding loans owed to

USDA. Agreement § V.B.6.

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Id. §§ II.KK, II.LL, II.MM, II.NN. For non-credit claims, a Track A Award is up to a $3,000 liquidated damages award. Id. § II.LL.
Track B claimants, who may proceed only on credit claims that involve actual, not constructive, application for USDA loans, must establish the same facts as Track A claimants, but by the higher “preponderance of the evidence” standard of proof. Id. § V.D.1. In addition, Track B claimants must demonstrate that “the treatment of [the claimant’s] loan application(s) by USDA was less favorable than [that provided to] a specifically identified, similarly situated white farmer(s).” Id. § V.D.1.e. Another important distinction between Track B claims and Track A claims is that, with the exception of the “similarly-situated white farmer” requirement (Section V.D.1.e) and the “complain[t] . . . to an official of the United States Government” requirement (Section V.D.1.g), both of which may be proven through non-familial sworn statements, the elements of a Track B claim must be proved through “independent documentary evidence admissible under the Federal Rules of Evidence.”22 Id. § V.D.2. This higher evidentiary standard is intended to impose greater rigor on a process that could result in a monetary award of up to $250,000. Id. § II.OO. Track B claimants may retain, at their own expense, economic experts to assist them in establishing their actual damages through written reports submitted to the Track B Neutral. Id. § V.D.2.c. Individual Track B awards are capped at $250,000, and the aggregate of all Track B Awards is capped at $100 million, so that the available Settlement funds are not disproportionately diluted by the Track B claimants. Id. § II.PP.23

22

Section V.D.2.b of the Agreement identifies certain documents that are deemed admissible even

if they do not meet all of the requirements of the Federal Rules of Evidence.

23

Because of this cap, individual Track B Awards will be proportionately reduced if the total of all

Track B Awards exceeds $100 million. Id. § V.E.5.a; Appx. 1 § I.A.1.

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Two other aspects of the claims determination process also warrant emphasis: (1) to avoid the cost and delay of protracted litigation, the Settlement provides that the determinations of both the Claims Administrator and the Neutrals are final and non-appealable, id. §§ V.A.8, V.B.2, V.B.3, V.B.5; and (2) so that claimants do not have to wait until the completion of the entire claims process to learn the status of their claim, each claimant will be notified regarding the decision on his or her claim within 30 days of either: (a) the Claims Administrator’s determination for claimants found not to be eligible to participate in the claims process; or (b) the Claims Administrator’s receipt of a claim determination by either the Track A or the Track B Neutral. Id. §§ V.B.3, V.B.5, V.E.1, V.E.2. However, because the exact amount of each successful Class Member’s award will not be known until all claim determinations are completed, the “rolling notification” that Class Members with prevailing claims will receive will be an interim notification without any award figure, see id. § V.E.2, which will be followed by a later notification of the amount of the Class Member’s award after all claim determinations have been completed. Id. § V.E.8.
D. Payments to Class Members Once all of the Track A and Track B Awards have been determined by the Neutrals, the
actual payments to successful Class Members will be calculated by the Claims Administrator based on the total amount of funds available. The funds “available” to pay meritorious claims are the $1.25 billion appropriated by Congress (in 2008 and 2010 collectively), less the amounts necessary to implement the Settlement,24 the amounts approved by the Court for Ombudsman

24

The Implementation Costs payable from the Settlement funds are “the Court-approved

administrative costs associated with implementing this Agreement, including the fees and costs of the

Track A and Track B Neutrals, the Claims Administrator, costs incurred under Section VIII.A.3, and the

costs necessary to provide notice of this Agreement to the Class,” and are capped at $35 million.

Agreement §§ II.I, II.R. The Agreement also authorizes the payment from the Settlement funds, upon

application to the Court, of “$3,500,000 . . . in reasonable additional fees and costs above the Cost Cap

(continued . . .)

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Costs, and the amount approved by the Court for Common Benefit Fees to compensate Class Counsel. Id. Appx. 1 § I.A.2.
If the amount available to pay meritorious claims is sufficient to pay all Track A and Track B Awards as determined by the Neutrals (after application of the $100 million cap on aggregate Track B Awards),25 all claims will be paid in full. Id. Appx. 1 § I.A.3. If, however, the amount available to pay meritorious claims is not sufficient to pay all Track A and Track B Awards in full (after application of the $100 million cap on aggregate Track B Awards), the Agreement calls for an initial 30% reduction in the awards made to the “Late-Late Filers” – those claimants whose late-filing requests to participate in the Pigford process were filed after September 15, 2000. See id. § V.E.5.b, Appx. 1 § I.A.4.a. This potential reduction in the awards for “Late-Late Filers” represents a compromise negotiated between counsel for “Late Filers” and counsel for “Late-Late Filers” as a result of the ambiguity of Section 14012 of the Farm Bill with respect to whether Congress intended Late-Late Filers to be included within the scope of “latefiling plaintiffs” granted a cause of action by that provision. Both groups of claimants recognized that this ambiguity gave rise to a significant litigation risk borne by each – i.e., if this Court were to construe Section 14012 to include Late-Late Filers on the same terms as Late Filers, the pool of available funds for Late Filers would be significantly reduced; by contrast, if this Court were to construe Section 14012 to exclude Late-Late Filers altogether, these claimants would receive no awards at all.

(continued)

incurred by the Track A Neutrals, the Track B Neutrals, and/or the Claims Administrator arising out of the reporting requirements and/or the audit provisions of Section 201(h) of [the Claims Resolution Act].” Id. at § II.I.

25

Id. §§ II.PP, V.E.5.a., Appx. 1 § I.A.1.

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Finally, if there is still not enough money to pay all successful claimants after a 30% reduction for Late-Late Filers, the Agreement provides for proportional reductions of the awards to all successful claimants by the Claims Administrator. Id. § V.E.5.c, Appx. 1 § I.A.4.a.(1). If there is enough money to pay all successful Late Filers in full after the Late-Late Filer reduction, any leftover funds would be reallocated, proportionally, back to the Late-Late Filers with meritorious claims. Id. Appx. 1 § I.A.4.a.(2). These payment calculation provisions ensure that all similarly-situated claimants – Late Filers and Late-Late Filers – will be treated equally.
Once the Claims Administrator has calculated the final awards for all claimants taking into account the amount of available funds, the Secretary is required to direct the U.S. Treasury to transfer funds to a Designated Account at a Court-approved Designated Bank identified by Class Counsel. Id. §§ IV.C, IV.H. Only as much of the Settlement funds as are necessary to pay successful claims in full – plus Implementation Costs, Ombudsman Costs, and Common Benefit Fees – will be transferred into the Designated Account. Id. § IV.H. In other words, any of the $1.25 billion not needed to pay successful claimants, or to pay for implementation of the Settlement and related costs and fees, will remain in the U.S. Treasury.
Once the funds are deposited into the Designated Account for payment of successful claims, the Claims Administrator will send to each successful claimant a check in the amount of his or her final Track A liquidated damages award or final Track B Award. Id. § V.E.8.a. All payments to Track A claimants in recognition of outstanding debt or Track A tax payments will be made to the USDA and the IRS, respectively, on the claimant’s behalf. Id. § V.E.8.b. Any awards to estate claimants or to claimants who are unable to file claims on their own behalf due to physical or mental incapacity will be held in escrow by Class Counsel for up to one year after notification of the award, until a legal representative of the claimant can be appointed by a court to receive the award. Id. §§ V.A.3, V.A.4, V.E.12. Any check that is sent to a claimant and
20
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remains uncashed 181 days after its issuance will be voided. After all funds have been disbursed, any funds remaining in the Designated Account, on motion by Class Counsel, will be distributed to cy pres beneficiaries designated by this Court under the terms of the Settlement. Id. §§ V.E.11, V.E.13.
E. Representation by Counsel in the Claims Process and Fees As is standard in class action settlements, this Settlement contemplates that the Court will
appoint Class Counsel to oversee the administration of the Settlement and represent Class Members in prosecuting their claims. In particular, given the complexity of this case and the potential for widespread misinformation regarding this Settlement, the Parties believe it essential to provide claimants with access to experienced and informed counsel to assist them in completing and submitting their Claim Packages within the 180-day time period established by the Settlement Agreement. Accordingly, under the Settlement, Class Counsel would be available to assist all claimants proceeding under Track A, at no additional charge. Id. § VIII.A.2. Class Counsel would be compensated for these services exclusively through the Court’s award of Common Benefit Fees. Recognizing that some claimants may not want to utilize the services of Class Counsel and may prefer to proceed pro se, or with counsel of their own choosing, the Agreement also provides a mechanism for any individual lawyer, not Class Counsel, to present a claim on behalf of a claimant and to be paid a reasonable fee for that service. Specifically, an attorney retained to represent a claimant in presenting a Track A claim would be entitled to receive a contingent fee of up to 2% of the Track A claimant’s final award. Counsel retained to represent Track B claimants – whether Class Counsel or otherwise – may receive up to 8% of the successful claimant’s Track B Award, in recognition of additional risk and effort involved in preparing Track B claims for submission.
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For all work performed by Class Counsel both before and after the Settlement, and for their preparation and submission of Track A claims for Class Members, the Settlement contemplates compensation through Common Benefit Fees of between 4.1% to 7.4% of the Fee Base,26 minus the aggregate amount of any Track B Fees paid to non-Class Counsel. The actual amount of these Common Benefit Fees will be determined by the Court upon submission of a fee petition by Class Counsel, which will be filed no later than 60 days after the Claim Deadline. Id. § X.B, X.E. Common Benefit Fees will be distributed to certain Class Counsel pursuant to a Counsel Participation Agreement for signatories to that Agreement, and to non-signatory attorneys who may be appointed as Class Counsel for their “reasonable and compensable work on behalf of the Class.” Id. § X.E.
F. Transparency in the Claims Process This Court, throughout this litigation, has emphasized the importance of transparency in
the claims process regarding potential recoveries available to putative Class Members. The fact that more than 40,000 Plaintiffs already have filed claims in this case, the expected success rate for their claims, and the limited funding available to pay successful claims all make it highly likely that the $1.25 billion appropriated by Congress will be insufficient to pay all meritorious claims at the full funding levels contemplated by the Farm Bill. Based on the payment process described above, it is therefore likely that awards to successful claimants will be proportionally reduced.
To minimize the risks of misunderstanding and disappointment on the part of Class Members, Plaintiffs have taken steps in the Settlement Agreement and related Notice materials to make clear that successful claimants are unlikely to receive the full amount of the awards they

26

The Fee Base is calculated as the total amount of appropriated funds ($1.25 billion) minus a good

faith estimate of Implementation Costs to implement the Settlement ($22.5 million). Id. § II.O.

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would have received in the Pigford settlement. In no fewer than six places in the Settlement

Agreement, and everywhere the amount of awards is mentioned, Plaintiffs have been careful to

highlight in italics the following phrase, or some variation thereof: “[a]wards are subject to

reduction based on the amount of available funds and the number of meritorious claims.”

Agreement §§ II.KK, II.LL, II.MM, II.NN, II.OO, V. A plain-English summary of the payment

calculation subsection of the Settlement also has been provided to explain potential reductions in

an easily readable and understandable format. Id. § V.E.5. Additionally, an Appendix with

“examples of claim calculations,” designed to illustrate the likely payouts per claimant based on

varying estimates of the number of successful claimants, has been attached to the Agreement.

See id. Appx. 1a. Finally, Plaintiffs have included the following language in the proposed Long

Form Notice under the section entitled “How Much Will I Be Paid?”:

It is important to note that Congress has approved a limited amount of money for this Settlement. Additionally, there is an overall limit of $100 million to pay Track B claims. Therefore, the cash payments that Class Members will receive could be significantly less than $50,000 for successful Track A claims, and significantly less than $250,000 for successful Track B claims.

See Ex. 5, Att. 3, Appx. NP-5, Long Form Notice at 6. Plaintiffs believe that this repeated message

will go a long way toward minimizing the risk of Class Members relying on the receipt of payments

higher than they actually receive.

G. Implementation Costs

The Agreement provides for the payment of up to $35 million in Implementation Costs

from the $1.25 billion Settlement fund. These costs are defined as:

The Court-approved administrative costs associated with implementing this
Agreement, including the fees and costs of the Track A and Track B Neutrals, the
Claims Administrator, costs incurred under Section VIII.A.3, and the costs necessary to provide notice of this Agreement to the Class.27

27

The definition of Implementation Costs expressly excludes “(1) attorneys’ fees, costs, and

expenses, (2) the costs and expenses associated with preparing and/or submitting claims on behalf of

(continued . . .)

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Agreement § II.R. Mindful of the critical importance of providing effective notice to putative Class Members and putting in place a claims process that is both fair and efficient and also has appropriate procedural safeguards to ensure the integrity of the Settlement funds, the Parties sought to balance the costs of such notice and process with the goal of preserving as much of the funds as possible for the payment of successful claims. Unlike the Pigford Settlement, where there were not capped appropriations and where the costs of the settlement implementation were paid by USDA in addition to the funds paid to successful claimants, all costs of implementing this Settlement will be paid from the same limited fund appropriated by Congress to pay meritorious claims. Thus, any money paid for Implementation Costs necessarily will reduce the amount available to pay awards to successful claimants. To ensure that the costs of implementing this Settlement do not have an unanticipated adverse effect on the amount of funds available to pay claimants, the Parties agreed to a Cost Cap for Implementation Costs of $35 million.28 Id. § II.I. Plaintiffs are confident that $35 million will be sufficient to provide sufficient notice to the putative Class and allow the retention of a qualified Claims Administrator and Neutrals, while at the same time protecting claimants with meritorious claims against the risk of uncontrolled Implementation Costs.29

(continued)

individual Claimants, (3) the fees, expenses, and costs of the Ombudsman (“Ombudsman Costs”), and (4) costs and expenses incurred by Class Counsel in the performance of their duties under this Agreement.” Agreement § II.R.

28

Class Counsel are permitted to seek payment of up to $3.5 million beyond this Cost Cap, if

necessary, to pay the Claims Administrator’s and the Track A and B Neutrals’ reasonable fees and costs

associated with compliance with the reporting requirements and/or audit provisions contained in Section

201(h) of the Claims Resolution Act. Id. § II.I.

29

To ensure that the Implementation Costs will not exceed $35 million, the undersigned counsel are

negotiating agreements with the Notice Provider, the Claims Administrator, the Track A Neutral, and the

Track B Neutral that will contain “not to exceed” cost caps. The total of these costs caps is expected to be

less than $16 million.

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The Settlement provides that up to $20 million of these Implementation Costs – $10 million or less after preliminary approval, and up to an additional $10 million after final approval – will be available, upon approval of the Court, to Class Counsel before the remaining Settlement funds are disbursed to pay interim Implementation Costs. This provision will allow Class Counsel to pay for the Notice necessary under the Settlement Agreement and for the retention of the Claims Administrator and Neutrals as the services are provided. 30 Id. §§ IV.C-F.
H. Continuing Role of the Court and Ombudsman Under the terms of the Settlement, the Court retains continuing jurisdiction “to oversee
and enforce [the Settlement Agreement] until 200 days after the date of the Final Accounting” – i.e., after all claim determinations and payments have been completed. Id. § XVI; see also id. § IV.A. In exercise of this authority, the Court is expressly tasked with approving all of the key players who are necessary for the implementation of the Settlement – including Class Counsel, the Claims Administrator, the Neutrals, and the Ombudsman – as well as with approving of all payments made under the Settlement, whether to claimants, vendors, or counsel. See Id. §§ II.F, II.JJ, II.RR, IV.C-H, VI.A, IX.A.3, IX.A.4, IX.A.7. The Parties contemplate the active involvement of the Court to ensure that the Settlement is administered fairly, and that the claims determination process operates fairly, efficiently and with integrity.
To assist in this oversight, the Agreement provides for the appointment by this Court of an independent Ombudsman, to serve as the Court’s “eyes and ears” throughout the implementation of the Settlement.31 Agreement § VI.A. The Ombudsman’s role is to:

30

To the extent that this full $20 million authorized for initial Implementation Costs is not required

for this purpose, the Settlement authorizes Class Counsel to move the Court for an interim payment of

attorneys’ fees, provided that the amount requested, together with the initial Implementation Costs, do not

exceed $20 million. Id. §§ IV.E, IV.F.

31

Federal courts have “inherent equitable power to appoint a person, whatever be his title, to assist

[them] in administering a remedy,” Ruiz v. Estelle, 679 F.2d 1115, 1161 (5th Cir. 1982) amended in part,

(continued . . .)

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1. Be available to Class Members and the public through a toll-free telephone number in order to address concerns about implementation of this Settlement Agreement;
2. Attempt to address any concerns or questions that any Class Member may have with respect to the implementation of this Settlement Agreement;
3. Make periodic written reports (not less than every six months) to the Court, the Secretary, and Class Counsel on the good faith implementation of this Settlement Agreement;
4. Have access to the records maintained by the Claims Administrator and the Neutrals involved in the claims process; and
5. Make recommendations to the Court relating to the implementation of this Settlement Agreement.
Id. § VI.B. 32 The Ombudsman will report directly to the Court and serve for as long as the Court has continuing jurisdiction to enforce the Settlement. Id. § VI.A. Unlike the Pigford Monitor, however, the Ombudsman here will not have the power to alter in any way substantive claims decisions made by the Neutrals or the Claims Administrator; rather the Ombudsman will serve to monitor the claims process, and propose changes to assist the process where appropriate. Id. § VI.C. Fees, costs, and expenses of the Ombudsman will be paid out of the Settlement funds separately from Implementation Costs and are not subject to the Cost Cap; all such expenditures by the Ombudsman will be subject to approval by the Court. Id. §§ II.V, IV.G.

(continued)

reh’g denied in part on other ground, 688 F.2d 266 (5th Cir. 1982); see also Schwimmer v. United States, 232 F.2d 855, 865 (8th Cir. 1956) (quoting In re Peterson, 253 U.S. 300, 312 (1920)). Regardless of the title, courts have sanctioned the use of court-appointed agents to monitor and report on compliance with a settlement agreement, particularly when the appointment has been agreed to by the parties. Ruiz, 679 F.2d at 1161 n.240; Cullen v. Whitman Medical Corp., 197 F.R.D. 136, 143 (E.D. Pa. 2000); Berry v. Sch. Dist. of the City of Benton Harbor, 184 F.R.D. 93, 101-03 (W.D. Mich. 1998).

32

Included as Exhibits 10 and 11 are a draft Order appointing the Ombudsman and a draft Order of

Reference detailing the Ombudsman’s authority and duties.

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I. Accelerations and Foreclosures With limited exceptions, the Settlement prohibits the Secretary from foreclosing on any
loans originating between January 1, 1981 and December 31, 1996 that are held by putative Class Members who have filed claims until the earlier of: (1) the date the Claims Administrator determines that the claimant is not a Class Member or submitted his or her Claim Package after the Claim Deadline; or (2) the Track A Neutral or Track B Neutral determines the claimant’s claim is not meritorious. Id. § VII. IV. ARGUMENT
A. The Proposed Settlement is Fair, Reasonable, and Adequate and Should be Preliminarily Approved by the Court Under Rule 23.
The Settlement presented to the Court today is the product of nearly three years of litigation and intensive negotiation between Plaintiffs and the USDA, begun shortly after passage of the 2008 Farm Bill. As this Court is well aware, however, the issues resolved by this Settlement extend much farther back than 2008. The Settlement proposed here seeks to address the sense of injustice felt by the tens of thousands of African Americans who, over the last decade, were barred from participation in the Pigford remedial process merely because their petitions to file claims were submitted late under the Pigford Consent Decree. If approved, this Settlement will provide an opportunity for Pigford claimants who, in many cases, have waited nearly 30 years for relief, to finally have their discrimination claims determined on the merits.
In its ruling in Pigford, this Court rightly noted that “[n]othing can completely undo the discrimination of the past or restore lost land or lost opportunities to . . . all of the . . . African American farmers” who suffered discrimination. 185 F.R.D. at 112. “The [Pigford] Consent Decree represent[ed] a significant first step.” Id. at 113. The present Settlement provides the final step in remedying the alleged discrimination suffered by these farmers. The proposed Agreement would provide relief for all such farmers and prospective farmers denied participation
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in the Pigford process due to “late-filed” petitions, and ensure that they are compensated for the discrimination they suffered.
As demonstrated below, the Settlement that is the subject of this Motion is fair, reasonable, and adequate and should be preliminarily approved by the Court. Indeed, Congress itself recognized this fact when it expressly conditioned the appropriation of $1.15 billion of the $1.25 billion total funding for Section 14012 claims on the approval of this Settlement. Plaintiffs therefore urge the Court to preliminarily approve the Settlement so that putative members of the Settlement Class may be notified of, and comment upon, the proposed Settlement, and so that a hearing date can promptly be set for the Settlement to be finally approved and implemented.
1. Legal Standard for Preliminary Approval Judicial approval of a class settlement under Rule 23(e) involves a two-step process. Manual for Complex Litigation (Fourth), §§ 13.14, 21.6632 (2004). First, “the proposal [is reviewed] preliminarily to determine whether it is sufficient to warrant public notice and a hearing.” Id. If the court finds that a proposed class settlement is “the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, . . . and falls within the range of possible [judicial] approval,” the court should grant preliminary approval and schedule a formal fairness hearing and direct notice to the class. In re Vitamins Antitrust Litig., Misc. No. 99-197, 1999 U.S. Dist. LEXIS 21963, at *29 (D.D.C. Nov. 23, 1999) (citing In re Shell Oil Refinery, 155 F.R.D. 552, 555 (E.D. La. 1993)); Blackman v. Dist. of Columbia, 454 F. Supp. 2d 1, 8 (D.D.C. 2006) (“A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm's length negotiations between experienced, capable counsel after meaningful discovery.”) (internal citations omitted); Manual for Complex Litigation (Fourth), at § 21.633.
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The second step of the approval process follows preliminary approval and notice to the putative class with an opportunity for comment and objection. It is during this second stage that the court is required to undertake a probing analysis of the factors set out in Rule 23(e) governing the approval of class action settlements and to evaluate the actual merits of the settlement. Equal Rights Center v. Wash. Metro. Area Transit Auth., 573 F. Supp. 2d 205, 211 (D.D.C. 2008); Manual for Complex Litigation (Fourth), §§ 21.634-635.33
Although the present Motion seeks only preliminary approval of the Settlement, Plaintiffs respectfully submit that the Settlement is manifestly fair and reasonable and adequate to the class as a whole and therefore merits approval at this time, even were the Court at this stage to apply the more probing Rule 23(e) test for final approval.34 Accordingly, this Settlement should be preliminarily approved, public notice issued, and a hearing scheduled so that the Agreement negotiated by the Parties regarding these Section 14012 claims can be implemented.
2. The Settlement Reflects a Fair and Reasonable Compromise of the Parties’ Positions.
As this Court observed in Blackman, “[b]y far the most important factor [in assessing the fairness of a settlement] is a comparison of the terms of the proposed settlement with the likely

33

Under Rule 23(e), final approval of a class settlement is guided by consideration of the following

factors:

a) the terms of the settlement in relation to the strength of plaintiffs’ and defendants’ arguments; b) the existence of arms’ length negotiations; c) the status of the litigation at the time of the [proposed settlement agreement]; d) the representations of experienced counsel; and e) the class reaction to the [proposed settlement agreement].

Equal Rights Center, 573 F. Supp. 2d at 211; Vista Healthplan, Inc. v. Warner Holdings Co. III, Ltd., 246 F.R.D. 349, 360 (D.D.C. 2007); In re Vitamins Antitrust Litig., 305 F. Supp. 2d 100, 104 (D.D.C. 2004).

34

Even at the final approval stage, the Court’s “discretion . . . to reject a settlement is restrained by

the ‘principle of preference’ that encourages settlements.” Pigford, 185 F.R.D. at 103; see also Osher v.

SCA Realty, 945 F. Supp. 298, 304 (D.D.C. 1996) (“[C]ourts assume a limited role when reviewing a

proposed class action settlement, . . . [and] should not substitute their judgment for that of counsel who

negotiated the settlement.”) (internal citations omitted).

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recovery that plaintiffs would realize if they were successful at trial.” Blackman, 454 F. Supp. 2d at 8. Even though the Settlement before the Court is the product of compromise by both Parties, it is indisputable here that the Class Members, as a group, will receive larger awards under the Settlement – and, through a more efficient and expeditious process – than had they pursued their claims individually at trial. This is due largely to the structure, and funding limitations, of Section 14012 of the Farm Bill.
First, absent the Settlement, Plaintiffs would face years of individual adjudications by this Court – and the attendant delay in recovering awards where successful – since no funds were allocated by Congress for resolving individual claims through an alternative or other extrajudicial claims determination process. The Settlement establishes a far more efficient and expeditious means of resolving the claims of the members of the putative Class.
Second, unlike the Pigford case, where successful claims were paid without limitation from the Judgment Fund, Congress, in Section 14012 of the 2008 Farm Bill, designated just $100 million in the Commodity Credit Corporation as the sole source of funding to pay successful claims under that provision. In enacting the Claims Resolution Act of 2010 last year, Congress appropriated an additional $1.15 billion for Section 14012 claims, but it expressly conditioned the access to these funds on the Court’s approval of the Settlement Agreement currently before the Court.35 See CRA § 201(b) (“[i]f th[is] Settlement Agreement is not approved . . . , the $100,000,000 of funds of the Commodity Credit Corporation made available by Section 14012(i) of the [Farm Bill] shall be the sole funding available for Pigford claims.”) (emphasis added). Thus, absent this Settlement (and its approval by the Court), there will be only $100,000,000

35

Congress expressly defined “Settlement Agreement” in the Claims Resolution Act as “the

settlement dated February 18, 2010 (including any modifications agreed to by the parties and approved by

the court under that agreement) between certain plaintiffs, by and through their counsel, and the Secretary

of Agriculture . . . .” CRA § 201(a)(1).

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available for the payment of Section 14012 claims. And, if that were the case, there would only be enough funds to pay approximately 1,600 of the more than 40,000 claimants who already have filed Section 14012 claims in this Court the minimum award provided in Pigford ($50,000 liquidated damages payment, plus $12,500 tax award). Or, stated differently, if only half of the 40,000 current claimants (i.e., 20,000) are successful Track A claimants, absent the Settlement, these successful claimants would receive $5,000 or less each.36 Simply put, absent approval of this Settlement, only 8% of the total funds authorized by Congress for the payment of Section 14012 claims would be available to members of the putative Class.
Third, Plaintiffs would face significant practical and evidentiary hurdles in proving their claims at trial in the absence of this Settlement. Most significantly, the claims at issue in this case date back as many as 30 years. The passage of so much time, combined with inconsistent record-keeping by Class Members during the Class Period, will give rise to significant issues of evidentiary staleness, and a high potential risk of unavailability of documents needed to prove individual claims. The Settlement mitigates these issues substantially by providing for streamlined non-judicial claims determination processes, one of which (Track A) would permit Plaintiffs to prevail on the basis of sworn attestations in the Claim Form, without the requirement of supporting documentation. Moreover, unlike in a judicial process, the Department will not file any responses to the claims presented in the non-judicial claims processes proposed in the Settlement Agreement.

36

Both of these calculations exclude any recovery for debt forgiveness which is contemplated by

Section 14012 and would be available under the Settlement.

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Fourth, among the Plaintiffs, the Settlement effects a fair and reasonable compromise of the potentially conflicting interests of the “Late Filers”37 and the “Late-Late Filers”38 with respect to their rights, or lack thereof, under Section 14012. While it is clear that Late Filers fall within the scope of Section 14012, there is, as noted above, uncertainty as to whether Congress intended Late-Late Filers to have a comparable right to relief under Section 14012.39 With due regard for the possibility that Late-Late Filers would be found to have no right at all to relief under Section 14012, counsel for Late Filers and counsel for Late-Late Filers negotiated a level of participation in the Settlement for Late-Late Filers that compensates meritorious claims filed by Late-Late Filers at a potentially discounted rate (depending on the amount of available funds) from those filed by Late Filers. This is a reasonable compromise that fairly accounts for the risk that the Court could find that Late-Late Filers’ claims are outside the scope of Section 14012.

37

Late Filers are those claimants who (1) filed a late-filing request to participate in Pigford after the

October 12, 1999 filing deadline but on or before the September 15, 2000 late-filing deadline, and (2)

were denied participation under the Pigford Consent Decree because they could not demonstrate that their

late filing was due to “extraordinary circumstances beyond [their] control.” Consent Decree, 5(g).

38

Late-Late Filers are claimants who filed late-filing requests in Pigford after the September 15,

2000 deadline, but on or before the June 18, 2008 passage of the Farm Bill.

39

Section 14012(b) of the Farm Bill states that “[a]ny Pigford claimant who has not previously

obtained a determination on the merits of a Pigford claim may” bring a civil action in the United States

District Court for the District of Columbia. A “Pigford claimant” is defined by Section 14012(a)(4) of

the Farm Bill as “an individual who previously submitted a late-filing request under section 5(g) of the

[C]onsent [D]ecree.” Section 5(g) of the Pigford Consent Decree, dated April 14, 1999, permit Claimants

who missed the October 12, 1999 deadline for participation in the Pigford remedial process to “petition

the Court” for late consideration of their claim, but provided that such petitions would be granted “only

where the claimant demonstrate[d] that his failure to submit a timely claim was due to extraordinary

circumstances beyond his control.” While Paragraph 5(g) itself contained no deadline for submitting a

late-filing petition, this Court subsequently set a September 15, 2000 deadline (see Ex. 6, Order of July

14, 2000, ¶ 2). Thus, there is an open question as to whether the “previously submitted a late-filing

request under Section 5(g) of the consent decree” language in Section 14012 was intended to reference

the September 15, 2000 deadline for Section 5(g) late-filing requests set by this Court or “previous[ ]” to

the date of the enactment of Section 14012. If the former, only Late Filers would be entitled to seek relief

under Section 14012; if the latter, then both Late Filers and Late-Late Filers would be covered by Section

14012.

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Fifth, absent this Settlement and the additional funding it would bring, Plaintiffs would be required to pay counsel who assist them in filing Section 14012 claims out of their individual recoveries or out of their own funds. Unlike the Pigford litigation, where the claims were brought pursuant to the Equal Credit Opportunity Act, 15 U.S.C. § 1691(e), and prevailing plaintiffs were entitled to recover attorneys’ fees, Section 14012 contains no comparable feeshifting provision. Instead, Section 14012 claimants would have to pay counsel according to individually negotiated fee agreements.40 If this Settlement is approved, however, all Class Members will be provided the services of Class Counsel without the need for any out-of-pocket payment. The Settlement, and the additional funding afforded by Congress upon approval by this Court, makes possible the Common Benefit Fees set aside by the Parties to pay attorneys who provide legal assistance to Plaintiff Class Members – a clear benefit to Plaintiffs which they would not “realize [even] if they were successful at trial” in this case. Blackman, 454 F. Supp. 2d at 8.
Absent the Settlement, the Defendant also would face significant costs and administrative burdens – namely the cost and time associated with defending Plaintiffs’ claims and the burden of producing USDA loan and non-credit benefit files to tens of thousands of claimants.41 The proposed Settlement benefits the Defendant by avoiding these costs and burdens, by capping the

40

Although this Court made clear that it would review all contingency agreements in an effort to

protect the integrity of the Section 14012 process and prevent exploitation of vulnerable farmers, even the

20% contingency to which all counsel subsequently agreed as a fee cap is substantially higher than the 4.1

to 7.4% Common Benefit Fee range to which the parties have agreed in the proposed Settlement.

Agreement § X.B.

41

Although Congress, in the Claims Resolution Act, eliminated the requirement in § 14012(e) of

the Farm Bill that USDA provide certain data on similarly situated white farmers to Section 14012

Claimants, absent settlement, Plaintiffs nevertheless could have sought this information through

discovery.

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Defendant’s potential liability, and by providing finality to the process of resolving claims arising out of the Department’s discriminatory farm credit policies and practices.
Recognizing the competing goals and priorities of all stakeholders in this litigation, the Settlement strikes a careful balance that provides meaningful relief to those members of the Class with meritorious claims, incorporates appropriate rigor in the claims process, minimizes the costly administrative burden on the USDA, and provides finality with respect to the remaining Pigford claims. Plaintiffs submit that this Settlement reflects a fair resolution of the Parties’ respective litigation positions, and represents the best – and, likely, only – opportunity for the Class to obtain meaningful relief.
3. The Settlement Safeguards Against the Risk of Fraud in the Claims Process.
The provisions of the Settlement Agreement that seek to safeguard against the risk of fraud in the claims process also demonstrate the fairness and reasonableness of this Settlement. These safeguards in the claims process are intended to ensure that awards are provided only to those claimants who are Class Members and who present claims that satisfy the requisite standards of proof. Plaintiffs are well aware of the intense public scrutiny regarding this Settlement and the appropriation of $1.25 billion in public funding to implement it. A chief aim in crafting the Settlement, therefore, was to establish a claims process that would compensate meritorious claims, while also deterring both the filing of frivolous or fraudulent claims and potential abuses by unscrupulous individuals acting on behalf of claimants. Accordingly, this Agreement contains numerous provisions designed to protect the integrity of the claims process and to serve as checks on both individual claims and the process as a whole. These negotiated measures in the Agreement were strengthened by the addition of provisions, mandated in the passage of the Claims Resolution Act, to increase public oversight and reduce the risk of fraud in the claims process. See §§ 201(g),(h).
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These provisions include:
● A non-judicial claims process administered by a set of highly-qualified Neutrals, approved by the Court, the Secretary of Agriculture, and the Attorney General, who are sworn by the Court to “determine each claim faithfully, fairly, and to the best of his or her ability.”42 Agreement §§ II.JJ, II.RR; cf. CRA § 201(g)(2). If any Neutral believes additional documentation is necessary or would be helpful to a decision on the merits of a claim, or suspects that a claim is fraudulent, he or she is authorized to request that additional documentation as a means of ensuring, as much as possible, accurate claim determinations. Agreement §§ V.C.4, V.D.4; cf. CRA § 201(g)(3);
● A requirement that claimants and their counsel make certain declarations, “under penalty of perjury,” regarding the factual representations made in support of each claim submitted for determination. As part of the Complete Claim Package, a prerequisite for proceeding through the non-judicial claims process, claimants must “declar[e], under penalty of perjury, that each of the statements provided by the claimant is true and correct.” Agreement V.A.1.a. In addition, counsel submitting a claim on behalf of a claimant also must include with the Complete Claim Package “[a] declaration . . . , under penalty of perjury, that to the best of the attorney’s knowledge, information, and belief formed after an inquiry reasonable under the circumstances, the claim is supported by existing law and the factual contentions have evidentiary support.”43 Agreement § V.A.1.c; cf. Claims Resolution Act § 201(g)(5);
● An Ombudsman, appointed, approved, and directed by the Court, to be available to Class Members and the public to address concerns regarding the implementation of the Settlement and to serve as the “eyes and ears” of the Court throughout this period of the Court’s oversight. Agreement § VI;
● Transparency in the claims determination process, allowing oversight by Congress, the Secretary of USDA, the Attorney General, and the Court, including regular reports from the Claims Administrator and Class Counsel regarding progress and payments in the claims process. Agreement §§ IV.C.5, IV.F.5, IV.H.3, VI.B.3; see also Claims Resolution Act § 201(g)(6).44

42

A full description of the qualifications of the Claims Administrator (Epiq Systems, Inc.), the

Track A Neutral (The McCammon Group, Ltd.), and the Track B Neutral (Michael Lewis, Esq.), are

described in Exhibits 7, 8, and 9.

43

This is a more rigorous standard than the standard imposed by Federal Rule of Civil Procedure 11

for civil claims, in that it requires counsel to attest to their reasonable belief in the bona fides of their

clients’ claims “under penalty of perjury.”

44

See CRA §§ 201(h)(1)-(2) (Comptroller General of the Government Accountability Office is to

“evaluate the internal controls . . . created to carry out the terms of the Settlement Agreement, and report

to the Congress at least 2 times through the duration of the claims adjudication process on the results of

(continued . . .)

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In short, the Parties have worked diligently to develop a rigorous process that will effectively limit awards to those claimants who present meritorious claims, ensure fairness and confidence in the claim determinations that are rendered, and provide appropriate transparency so that the public can have confidence that the appropriated funds are being used for their intended purposes. Plaintiffs believe that the Settlement Agreement before the Court accomplishes these goals.
4. The Settlement was the Product of Extensive Arms-Length Negotiations by Experienced Counsel.
The fairness, reasonableness, and adequacy of the Settlement is also demonstrated by the fact that the Agreement was “‘reached in arm’s length negotiations between experienced, capable counsel . . . .’” Equal Rights Center, 573 F. Supp. 2d at 212 (quoting Blackman, 454 F. Supp. 2d at 8); Vista Healthplan, Inc., 246 F.R.D. at 360; In re Vitamins, 305 F. Supp. 2d at 104.
As detailed in the attached affidavit of Andrew H. Marks (Ex. 12), one of the lead negotiators on behalf of the Plaintiffs, the Settlement Agreement in this case was the product of arms-length negotiations that extended more than two years. Over the course of this extended period, the Parties exchanged at least 20 comprehensive settlement drafts, held numerous faceto-face negotiation sessions, and participated in many more conference calls to hammer out the terms of the Settlement Agreement now before the Court. These negotiations were carried out by “experienced, capable counsel,” including more than 20 law firms on the Plaintiffs’ side and a highly experienced team of Department of Justice and USDA lawyers on the other side. In light
(continued) this evaluation;” USDA Inspector General is to undertake a performance audit “within 180 days of the initial adjudication of claims . . . , based on a statistical sampling of adjudicated claims”).
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of these facts, there is every reason for the Court to conclude that the Settlement is fair, adequate, and reasonable. See Equal Rights Center, 573 F. Supp. 2d at 212 (settlements resulting from vigorous arms-length negotiations are presumptively fair, adequate, and reasonable); accord In re Vitamins, 305 F. Supp. 2d at 104.
5. The Settlement Provides for Sufficient Funds to Ensure Effective Implementation of the Settlement, While Also Protecting Against Overspending to the Detriment of the Class.
The provisions of the Settlement Agreement governing Implementation Costs and Ombudsman Costs are fair and reasonable. The Settlement recognizes the importance of ensuring adequate funds to pay for broad and effective notice to potential Class Members, retaining experienced Neutrals for the non-judicial claims process, and securing the services of a Claims Administrator and an Ombudsman, while at the same time ensuring that unnecessary costs are not incurred that would reduce the amount of the Settlement funds available to pay the claims of successful Class Members.
Thus, the Parties have agreed that the Implementation Costs will not exceed $35 million, with Class Counsel taking responsibility to keep the costs under this Cost Cap. Agreement § II.I (definition of “Cost Cap”). This Cost Cap – along with the required Court approval of all Implementation Cost expenditures – provides assurance to the Class that the Settlement funds will not be depleted as a result of unnecessary expenditures in the implementation of the Agreement.45
Plaintiffs are confident that $35 million will be a sufficient amount to implement this Settlement and, indeed, provides a substantial cushion in the event costs exceed Plaintiffs’ initial

45

The Agreement provides for up to $3.5 million in additional Implementation Costs, subject to

Court approval, if such costs are necessary to compensate the Claims Administrator and/or the Neutrals

for their efforts in responding to GAO and USDA requests for information and audits pursuant to the

Section 201(h) of the Claims Resolution Act. See Agreement §§ II.I, II.R, IV.H.

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projections. To ensure that Implementation Costs are controlled, Plaintiffs have negotiated a fixed price agreement with the Notice Provider and are negotiating “not to exceed” agreements with the Track A and Track B Neutrals and the Claims Administrator.
In sum, Plaintiffs believe that the Implementation Cost and Ombudsman Cost provisions in the Settlement Agreement provide the appropriate balance between providing the funds necessary to establish an adequate notice process and a fair and efficient claims process, while protecting the Class against unnecessary costs that could diminish the recovery of successful claimants.
6. The Proposed Notice Program is Reasonably Designed to Protect the Interests of Absent Parties.
The proposed Notice Program (Ex. 5, Att. 3) accompanying this Motion is reasonable and appropriately designed to alert prospective Class Members and potential objectors to the terms of the Settlement. Rule 23(e)(1) requires the Court, as part of the settlement approval process, to “direct notice in a reasonable manner to all class members who would be bound by the proposal.” For Rule 23(b)(1) “limited fund” classes, such notice need only be “appropriate” for the class and ensure that the interests of absent parties are protected. Fed. R. Civ. P. 23(c)(2)(A); see also Larionoff v. United States, 533 F.2d 1167, 1186 (D.C. Cir. 1976) aff’d, 431 U.S. 864 (1977) (holding that due process is satisfied if the procedure adopted “‘fairly insures the protection of the interests of absent parties who are bound by it’”) (internal citations omitted). For Rule 23(b)(3) classes, the standard is a higher one: notice must be “the best . . . practicable under the circumstances.” Fed. R. Civ. P. 23(c)(2)(B). Notwithstanding the fact that Plaintiffs are proposing a Rule 23(b)(1) class, the Notice Program proposed here is designed to satisfy the higher standard of “best practicable under the circumstances.” For this reason, Plaintiffs submit that the proposed Notice Program readily provides the due process demanded for Rule 23(b)(1) classes and should be approved by this Court.
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Appropriate notice of a class settlement under Rule 23 should contain “a plain-English explanation of the Settlement and the Class members’ rights and options.” In re Baan Co. Sec. Litig., 284 F. Supp. 2d 62, 67 (D.D.C. 2003); see also Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 114 (2d Cir. 2005), cert. denied, 544 U.S. 1044 (2005). To satisfy this standard, Class Counsel are proposing Kinsella Media, LLC (“Kinsella”), a respected expert in “plain language” class notice, to serve as the Notice Provider in this case. A statement of Kinsella’s qualifications and experience is provided with Exhibit 5 to this Motion.
With Kinsella’s assistance, Class Counsel have developed a Notice Program (Ex. 5, Att. 3) designed to ensure, to the greatest extent possible, that clear, direct Notice reaches the maximum number of potential Class Members. Cf. Fed. R. Civ. P. 23(c)(2)(B) (a notice program in a 23(b)(3) class should “includ[e] individual notice to all [class] members who can be identified through reasonable effort”). To achieve this goal, the Notice Program utilizes three forms of Notice: (1) a Postcard Notice (Ex. 5, Att. 3, Appx. NP-4), sent to all known potential claimants; (2) a Publication Notice (Ex. 5, Att. 3, Appx. NP-6), published broadly in various media; and (3) a Long Form Notice (Ex. 5, Att. 3, Appx. NP-5), a comprehensive description of the Settlement posted on a publicly accessible website (www.blackfarmercase.com) and available in hard copy upon request to Class Counsel or the Claims Administrator.
Together, these forms of Notice provide: (1) a clear, plain-English explanation of the rights and options of prospective Class Members under the Settlement; (2) information regarding the criteria claimants must meet to be eligible for relief, and the amounts of awards for successful claimants; (3) information on how to submit a claim, how to obtain a lawyer for assistance, and how the lawyer is compensated for his or her services; (4) instructions on how to object if a prospective Class Member objects to all or part of the Settlement; (5) information
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regarding the consequences of taking no action; and (6) contact information for prospective Class Members seeking more information.
a. Postcard Notice and Long Form Notice Because of the unique posture of this case, the Pigford Facilitator already has available a “Timely 5(g) List” containing the vast majority of all “Late Filers” eligible to participate under the Settlement. The Pigford Facilitator also has contact information for individuals who sent communications to the Facilitator or another specified Pigford official after September 15, 2000 that arguably could be considered to be a Pigford “late-filing” request. The Notice Program (Ex. 5, Att. 3) calls for the Claims Administrator, in conjunction with the Notice Provider, to mail a Postcard Notice (Ex. 5, Att. 3, Appx. NP-4) to each person for whom it has record of a “late-filing” request – either through presence on the Timely 5(g) List or other communication. This form of Notice provides basic information regarding this Settlement, eligibility for relief, potential awards, and the right to object, and also provides a toll free number and website where the recipient can call or link to seek more information or to obtain a copy of the Long Form Notice. The Long Form Notice (Ex. 5, Att. 3, Appx. NP-5) contains a comprehensive discussion of the Settlement terms, the claims process, and the requirements for Class Members who wish to object to part or all of the Settlement. This Notice will be available on the website to be administered by the Claims Administrator (www.blackfarmercase.com), and will also be sent by the Claims Administrator to anyone who requests a copy. Should any of these mailed Postcard Notices be returned as “undeliverable,” the Claims Administrator, in conjunction with the Notice Provider, will search for updated addresses for the recipients and will resend the Notices to any new addresses identified. Ex. 5, Att. 3, Notice Program at 9-10. Also, after a reasonable period, to ensure that Notice recipients are aware of their rights under the Settlement, the Claims Administrator will mail a second Postcard Notice
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and place a follow-up phone call to any potential Class Members to whom a Postcard Notice was sent (and not returned), and who have not yet filed a claim. Id. at 10. Plaintiffs believe that this direct mailing effort should provide effective Notice to more than 90% of the individuals eligible to participate in the claims process outlined in the proposed Settlement.
b. Publication Notice and Other Paid and Earned Media In addition to this direct outreach, the Notice Provider will saturate media outlets in African American communities with information about the Settlement. This will include “paid media” – e.g., print advertisements in leading farm trade publications and more than 400 daily and community newspapers in areas with high concentrations of African American farmers (Ex. 5, Att. 3, Appx. NP-6); 60-second national and local radio spots in areas with large numbers of African-America farmers (Ex. 5, Att. 3, Appx. NP-7, Radio Advertisement Script); 60-second, 30-second, and 20-second public service announcements regarding the rights of potential Class Members under the Settlement (Ex. 5, Att. 3, Appx. NP-8, Public Service Announcement Script); and banner ads on websites frequented by the African American community. See Ex. 5, Att. 3, Notice Program at 13-33. It will also include “earned media” – i.e., coverage of the Settlement in print and broadcast media generated by engaging African American opinion leaders, community organizations, Historically Black Colleges and Universities, and others to talk about the Settlement and generate press interest. Id. at 41-44.
c. Additional Outreach Additional outreach contemplated by the proposed Notice Program includes outreach by the Notice Provider to third-party organizations in regular contact with potential Class Members – including African American churches, civil rights organizations, non-profit organizations focused on African American farmers, non-profit organizations focused on farming and agriculture generally, and agricultural trade associations – to obtain their help in disseminating
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Notice materials. Id. at 43-44. Finally, as noted above, the Notice Provider will work with the Claims Administrator to establish a publicly available website on which updated information about the Settlement and claims process, as well as the Long Form Notice (Ex. 5, Att. 3, Appx. NP-5), will be posted. Ex. 5, Att. 3, Notice Program at 31. Finally, the Claims Administrator will operate a toll-free call center to answer Class Member questions. Id. at 45.
Plaintiffs submit that this sophisticated and comprehensive outreach effort readily meets, and indeed exceeds, the requirements of Rule 23. Accordingly, the Court should approve the proposed Notice Program.
7. The Range of Attorneys’ Fees to Compensate Class Counsel is Reasonable.
The Agreement here contemplates that Class Counsel will petition the Court for a Fee Award in the range of 4.1% to 7.4% of the total funds appropriated for the Settlement (minus $22.5 million for estimated costs of implementing the Agreement). The Agreement further provides that this amount will be reduced by the contingency fees negotiated and paid by successful Track B claimants from their respective recoveries. The amount of fees approved by the Court would be paid into a Common Benefit Fund that would compensate Class Counsel for: (a) their work on behalf of all Class Members prior to, and through, the Court’s approval of the Settlement; (b) their work on behalf of all individual Track A claimants through the claims process set forth in the Settlement Agreement (other than those Track A claimants who elect to file pro se or to engage their own counsel); and (c) any work they perform on behalf of the Class as a whole following the Court’s approval of the Settlement.
The Settlement provides that the Common Benefit Fund will be allocated among Class Counsel by the Plaintiffs’ Steering Committee, a subgroup of Class Counsel, under the guidance of Lead Class Counsel, according to the terms of a Participation Agreement among certain
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Plaintiffs’ counsel.46 The Participation Agreement, inter alia, apportions the anticipated claims preparation and submission work among all signatory counsel in these cases, and provides that compensation to counsel be based upon the work performed both before and after the Settlement on behalf of potential Class Members. In the event any counsel who are not parties to the Participation Agreement are approved by the Court as additional Class Counsel, such counsel would also be compensated from the Common Benefit Fund based on the work they have performed on behalf of the Class.
The Settlement further provides that fees paid to lawyers who assist Track B claimants with their claims would be paid by the Track B claimants from their awards, and that the fees will be limited to 8% of any Track B Award. Under the Settlement, both Class Counsel and nonClass Counsel may represent Track B claimants and be compensated through such contingency fees, which, subject to the 8% cap, will be negotiated by each individual claimant and his or her counsel. Agreement § II.QQ. The purpose of this separate provision for the compensation of counsel representing Track B claimants is to compensate them fairly, but not excessively, for the significant additional effort involved in preparing and submitting Track B claims.
Finally, the Settlement proposes a cap on the contingency fee for non-Class Counsel representing Track A claimants at 2% of any amounts awarded. Id. § II.II. Because all Track A claimants are entitled to the assistance of Class Counsel, without charge beyond the awarded Common Benefit Fees, the Parties expect that most claimants will utilize Class Counsel to assist them with their claims. Agreement § VIII.A.2. However, in recognition that some claimants may nevertheless prefer to engage their own counsel, the Settlement preserves this right, but

46

This disclosure is made pursuant to Fed. R. Civ. P. 23(e)(3) (“The parties seeking approval [of a

settlement] must file a statement identifying any agreement made in connection with the proposal.”). The

Participation Agreement will be submitted to the Court along with Class Counsel’s fee petition.

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requires such claimants to bear the cost of non-Class Counsel themselves rather than tax the Common Benefit Fund. The 2% Track A Individual Counsel Fee Cap, on the other hand, ensures that Track A claimants who elect to engage non-Class Counsel will be charged no more than 2% of their recovery.
Counsel will file with the Court, following preliminary approval, a detailed motion and memorandum in support of the attorneys’ fees provisions of the Agreement and request a specific fee award within the 4.1% to 7.4% range set forth in the Agreement. For purposes of preliminary approval, however, the Parties submit that the range of the Common Benefit Fund agreed to by the parties is well within (indeed, well below) the range of common benefit awards the courts in this Circuit have approved in other class actions. See, e.g., In Re Vitamins Antitrust Litig., Misc. No. 99-197, 2001 U.S. Dist. LEXIS 25067, at *58, 65 (D.D.C. July 16, 2001) (noting that “fee awards in common fund cases range from fifteen to forty-five percent,” but for cases with large recoveries, “some courts have accounted for economies of scale by awarding fees in the lower percentage range of eleven to nineteen percent”); In re Baan Co. Sec. Litig., 288 F. Supp. 2d 14, 16 (D.D.C. 2003) (awarding 28% of the common fund for attorneys’ fees in a securities class action); In re Lorazepam & Clorazepate Antitrust Litig., Civ. No. 99-0790, 2003 U.S. Dist. LEXIS 12344, at *30-31 (D.D.C. June 16, 2003) (approving attorneys’ fees worth 30% of the common fund based on attorneys’ experience and extensive work on the case).
** * * The Settlement proposed by the Parties represents the product of more than two years of negotiations conducted by highly-experienced counsel on both sides. While neither side secured all that it sought, the Settlement before the Court is fair, reasonable, and adequate for all parties. It establishes a thoughtful and comprehensive remedial process under Section 14012 to ensure that all those with meritorious Pigford claims once and for all obtain justice for the
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discrimination they suffered. Moreover, in view of the limitations imposed by Congress in Section 14012 of the Farm Bill and Section 201 of the Claims Resolution Act, approval of this Settlement is the only way to ensure funding in an amount that is even potentially adequate to afford meaningful relief to all successful claimants. Accordingly, Plaintiffs urge the Court to preliminarily approve the Settlement so that Notice may be appropriately issued to the Class.
B. Certification of the Proposed Settlement Class is Appropriate Under Rules 23(a) and 23(b)(1)(B).
Certification of the limited fund Class before the Court represents the best, and perhaps only, means of managing the above-captioned case efficiently and equitably. Indeed, the global finality and equitable treatment that all parties seek can only be assured through class certification.
In this Motion, the Parties seek certification of a Rule 23(b)(1)(B) Settlement Class, defined as follows:
All individuals: (1) who submitted late-filing requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree. Agreement § III.A. This proposed Class, and the Class Representatives and Class Counsel proposed to represent it, readily meet the requirements for certification under Rule 23(a), as well as the requirements for certification under Rule 23(b)(1)(B) articulated by the Supreme Court in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). In this case, certification of the proposed Class is essential to the effectuation of this Settlement, and will serve the interests of justice by fairly and equitably protecting both those putative Class Members whose claims have already been filed, and those whose claims are not yet filed in this case.
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1. The Proposed Class is Sufficiently Definite to Permit Identification of Individual Class Members.
"It is axiomatic that for a class action to be certified a 'class' must exist." Simer v. Rios,

661 F.2d 655, 669 (7th Cir. 1981); see also Pigford v. Glickmann, 182 F.R.D. 341, 346 (D.D.C.

1998) (although Rule 23 “does not specifically require plaintiffs to establish that a class exists,

this is a common sense requirement and courts routinely require it.”). This is meant to “help the

trial court manage the class,” as it must be “administratively feasible for the court to determine

whether a particular individual is a [class] member.” Bynum v. Dist. of Columbia, 214 F.R.D.

27, 31 (D.D.C. 2003). The Settlement Class proposed here is easily ascertainable under this

standard.

The proposed Class definition sets out two clear criteria for Class Membership: first, an

individual must have “submitted [a] late-filing request[] under Section 5(g) of the Pigford

Consent Decree on or after October 13, 1999, and on or before June 18, 2008,” and second, he or

she must “not [have] obtained a determination on the merits of [his or her] discrimination

complaint[], as defined by Section 1(h) of the Consent Decree.” Agreement § III.A. The first

prong is easily ascertainable, in most instances, by reference to the Pigford Timely 5(g) List, a

list of those claimants who requested to participate in the Pigford remedial process on or between October 13, 1999 and September 15, 2000.47 The proposed Settlement provides that

individuals whose names appear on the Timely 5(g) List, have presumptively met this first

prong. Agreement § V.B.4.a.

47

As discussed above, the Pigford Facilitator maintained largely complete records of those

claimants who requested to participate in Pigford on or between October 13, 1999 and September 15,

2000. Ex. 3, Consent Decree § 5(g). For case management purposes, each such claimant was recorded in

a database maintained by the Pigford Facilitator and given a unique Pigford tracking number. A total of

58,431 claimants recorded in this database were denied the opportunity to participate in Pigford because

they did not meet the “extraordinary circumstances” standard, but the database with their information and

tracking numbers is still available. Ex. 4, Bithell Decl. at ¶ 6. For purposes of the Settlement, this

database is now known as the Pigford Timely 5(g) List. Agreement § II.BB.

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Individuals whose names do not appear on the Pigford Timely 5(g) List may establish the first prong of Class Membership through independent documentary evidence of a late-filing request in Pigford. Agreement § V.B.4.a. The determination of whether a particular document constitutes a “late-filing request” under this Settlement will be made by the Claims Administrator, an independent evaluator who will be approved by the Court and trained to identify valid requests based on a “preponderance of the evidence” standard. Id. The Pigford Facilitator has maintained documentation received from at least 7,911 Late-Late Filers48 which will be provided to the Claims Administrator and potentially could be found to constitute “latefiling” requests by those individuals.49 Agreement §§ VIII.A.3, VIII.A.4. Plaintiffs believe that this documentation in the possession of the Pigford Facilitator, together with any documentation claimants may have in their own possession, will enable the Claims Administrator to identify claimants who satisfy the first prong of Class Membership under this Settlement.
Once a claimant has satisfied the first prong of Class Membership, that claimant must also satisfy the second prong, by showing there has been no determination on the merits of his or her Pigford claim. This, too, is a straight forward determination. The Pigford Facilitator maintains both a complete list of those claimants who received a determination on the merits of their Pigford claim under the Consent Decree (the “Pigford Participants List”) and a list of those

48

See Ex. 4, Bithell Decl. ¶ 7.

49

The Pigford Facilitator has informed undersigned counsel that its recordkeeping after September

16, 2000 may not be complete, and that it does not know whether the documentation it saved was the full

scope of late-filing requests filed after that date. Moreover, in addition to the 7,911 apparent Late-Late

Filers, the Pigford Facilitator has informed counsel that it has also received correspondence from an

additional 17,515 individuals who submitted “form letters discussing the Consent Decree which could be

construed as late filing requests.” Ex. 4, Bithell Decl. ¶ 7. Because the Facilitator’s records for late-filing

requests filed on or after September 16, 2000 are not complete, and because of the “form letter” issue

identified by the Facilitator, the Settlement provides that all late-filing requests filed on or after

September 16, 2000 will be subject to review by the Claims Administrator, rather than automatically

treating such correspondence as a valid 5(g) request.

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claimants who opted out of Pigford and chose to pursue their discrimination claims through alternate means (the “Pigford Opt-Out List”). Agreement §§ II.Z, II.AA. These two lists together constitute a complete set of those claimants who received a “determination on the merits” of their Pigford claims, as defined in the Settlement Agreement. Agreement § V.B.4.b. In other words, whether a claimant satisfies the second prong of Class Membership can be determined simply by checking the claimant’s name against these two existing lists maintained by the Pigford Facilitator.
The existence of “already-created” lists for the vast majority of the Class, combined with clearly delineated mechanisms to determine Class eligibility for those claimants not on these lists, makes the Class in this case readily ascertainable.
2. The Proposed Class and Class Representatives Satisfy the Requirements of Rule 23(a).
Under Rule 23(a), a class may be certified if the following prerequisites are met: (1) the class is so numerous that joinder of all members is impracticable [(“numerosity”)]; (2) there are questions of law or fact common to the class [(“commonality”)]; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [(“typicality”)]; and (4) the representative parties will fairly and adequately protect the interests of the class [(“adequacy of representation”)]. Plaintiffs respectfully submit that the proposed Settlement Class satisfies each of these requirements.
a. Numerosity Under Rule 23(a), a Court must first determine that a proposed class is “so numerous that joinder of all members is impracticable.” Rule 23(a)(1). There are already more than 40,000 claimants who have joined as plaintiffs in this consolidated action, and tens of thousands more are expected to file claims after Notice is distributed. The size of this Settlement Class plainly would make joinder of all members impracticable. For this reason, the numerosity requirement
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of Rule 23(a) is readily met here. See, e.g., Lindsay v. Gov’t Employees Ins. Co., 251 F.R.D. 51, 55 (D.D.C. 2008) (“Typically, a class in excess of 40 members is sufficiently numerous to satisfy [the numerosity] requirement.”); accord Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 239 F.R.D. 9, 25 (D.D.C. 2006); Bynum, 214 F.R.D. at 32.
b. Commonality To satisfy the commonality requirement under Rule 23(a)(2), there must be “questions of law or fact common to the class.” Rule 23(a)(2). Commonality, however, need not be complete. See Bynum, 214 F.R.D. at 33 (“[I]t is not necessary that every issue of law or fact be the same for each class member”)(citing Forbush v. J.C. Penney, Inc., 994 F.2d 1101, 1106 (5th Cir. 1993)). Rather, if “there is some aspect or feature of the claims which is common to all,” the commonality requirement is met. Pendleton v. Schlesinger, 73 F.R.D. 506, 509 (D.D.C. 1977), aff'd, Pendleton v. Rumsfeld, 628 F.2d 102 (D.C. Cir. 1980). The members of the proposed Settlement Class share a common interest in ensuring that all successful claimants have an equal opportunity to receive compensation for the discrimination they have suffered. Cf. In re Joint E. & S. Districts Asbestos Litig. 878 F. Supp. 473, 563 (E.D.N.Y. 1995) (finding commonality where beneficiaries to a trust “shared a common interest in . . . assuring an equitable distribution of [limited] funds”). Here, as noted above, only $1.25 billion (minus Implementation Costs, Ombudsman Costs, and attorneys’ fees) is available to pay meritorious claims. Because it is likely that this limited Settlement fund will not be sufficient to pay all meritorious claims the full amounts of their awards, this case, absent approval of the proposed Settlement, creates a substantial risk of a “race to the courthouse” scenario, whereby those Section 14012 Plaintiffs whose claims are resolved first would potentially exhaust the limited funds available to the detriment of later filing Plaintiffs. All Class Members share a
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common interest in not being denied a recovery by virtue of where in the sequence of adjudications their claim happens to fall.
All members of the Settlement Class also share a common interest in ensuring that the funds available to pay successful claimants are not limited to the $100 million appropriated by the 2008 Farm Bill. Because the additional $1.15 billion appropriated by Congress in the 2010 Claims Resolution Act is conditioned on the approval by the Court of the Settlement that is now before the Court, all members of the Settlement Class share a common interest in the approval of this Agreement.
In addition, all members of the Settlement Class share a common interest in minimizing the evidentiary burdens and costs, as well as the delays that a judicial claims process will entail. Thus, all Settlement Class members share a common interest in the implementation of the nonjudicial claims process that the Settlement Agreement would establish.
In sum, there are a number of issues common to the proposed Settlement Class. For this reason, the Court should find that the requirements of Rule 23(a)(2) are met.
c. Typicality and Adequacy The third and fourth prongs of Rule 23(a) require that the claims and defenses of the named plaintiffs be “typical of the claims and defenses of the class,” and that the named plaintiffs and proposed class counsel “fairly and adequately represent the interests of the class.” Rule 23(a)(3)-(4). Plaintiffs readily satisfy both of these requirements. The typicality requirement of Rule 23(a) is meant to “ensure[] that the claims of the representative and absent class members are sufficiently similar so that the representatives’ acts are also acts on behalf of, and safeguard the interests of, the class.” Littlewolf v. Hodel, 681 F. Supp. 929, 935 (D.D.C. 1988) aff’d sub nom. Littlewolf v. Lujan, 877 F.2d 1058 (D.C. Cir. 1989); see also In re Vitamins Antitrust Litig., 209 F.R.D. 251, 260 (D.D.C. 2002). The
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adequacy of representation requirement of Rule 23(a) is intended to ensure that the class representatives identified can “adequately represent the interests of the class,” Lindsay, 251 F.R.D. at 55 (internal citation omitted), as measured by the absence of a “conflict of interest between the legal interests of the named plaintiffs and those of the proposed class.” Johnson v. Dist. of Columbia, 248 F.R.D. 46, 53-54 (D.D.C. 2008). Because both of these Rule 23(a) requirements deal with the qualifications of named plaintiffs and their role representing the class, courts have recognized that these requirements “tend[] to merge.’” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997) (quoting Gen. Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982)). For purposes of this analysis, therefore, Plaintiffs address the typicality and adequacy together.
i. Named Plaintiffs The claims of the named plaintiffs in this case are collectively typical of the claims that are likely to be presented by members of the proposed Class, and their advocacy will adequately match the interests of unnamed Class Members. A description of the named plaintiffs and the discrimination they suffered illustrates the extent of their typicality and adequacy to serve as Class Representatives. James Copeland is an African American from Harris County, Georgia who grew up farming 37.6 acres of corn, collard greens, turnips, and okra and raising livestock with his grandfather. The land was originally owned by Mr. Copeland’s grandfather, but ultimately passed to Mr. Copeland when his grandfather and mother passed. Between 1990 and 1992, Mr. Copeland went to a USDA office in Talbot County, Georgia to apply for a loan to buy farm equipment. Mr. Copeland believed that with a modest loan, he could increase production on his farm to the point where he could begin farming full time, and even hire several family members to help him with the business. At the Talbot County USDA office, Mr. Copeland was told by the
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USDA loan officer “not to look [him] in the eye” when filling out his loan paperwork, and when Mr. Copeland returned three weeks later to check on his application status, the USDA staff told him that his loan paperwork had been lost. Several weeks later, Mr. Copeland again applied for the same loan, and again his paperwork was “lost.” Mr. Copeland complained to an official at the USDA office that he suspected USDA kept “losing” his application because he was black. As a result of his inability to obtain a loan, Mr. Copeland had to sell his family’s farmland and leave farming altogether. He submitted a late-filing request to participate in Pigford on September 1, 2000,50 – i.e., he is a Late Filer – but he was not given a determination on the merits of his discrimination claim.
Earl Moorer is the son and heir of John Moorer, a now-deceased African American farmer from White Hall, Alabama who grew primarily soybeans and cotton and raised cattle on 25-30 acres of owned land and on 300 acres of leased land from 1981-1984. Each year, from 1981 through 1984, John Moorer went to the Farmers Home Administration (“FmHA”)51 office in Lowndes County, Alabama to seek loans of approximately $25,000 to $30,000 to hire farm help and combat insect infestations that were affecting his crops. Earl Moorer, on several of these occasions, accompanied his father to the FmHA office in Lowndes County and helped him fill out the loan applications, as John Moorer was illiterate. Each year, Mr. Moorer’s loan applications were granted for half or less than half of what was requested, or were denied altogether. John Moorer verbally complained to the FmHA official about this treatment, citing white farmers in the area who received better treatment than he did, and believed that his denial or reduced loan was due to race discrimination. As a result of an inability to access farm credit,

50

Mr. Copeland’s name is on the Timely 5(g) List.

51

The Farmers Home Administration is a predecessor of the current Farm Services Agency (FSA)

within USDA.

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John Moorer had to file bankruptcy, and lost all but two acres of his family farm. Earl Moorer, on behalf of John Moorer, filed a late-filing request in Pigford on September 5, 2000,52 – i.e., he is a Late Filer – but he has not yet received a determination on the merits of his discrimination complaint.
Marshallene McNeil is an African American who farmed approximately 10 acres of family land on a 90-acre plot in Camden, Alabama. The land was originally owned by her great uncle and great aunt, and then maintained by her father. Ms. McNeil has maintained and paid taxes on the land since their passing. She farmed primarily vegetables, including okra, corn, green beans, and cucumbers, maintained some livestock, and at times attempted to grow cotton. In 1982, Ms. McNeil went to the FmHA office in Camden, Alabama to request a loan to buy seeds and fertilizer for her crops, and to pay the workers on her farm. She was told by the administrator of the office that there was no money available for her, and her loan application was denied. Ms. McNeil complained to the same FmHA official that she thought her denial was due to racial discrimination, as she knew white farmers in the area who had received loans from the office. As a result of her inability to get a loan, Ms. McNeil lost several acres of crops as well as some livestock. Several years after her loan was denied, financial hardship forced Ms. McNeil to leave farming altogether. Ms. McNeil submitted a late-filing request to participate in Pigford on September 16, 2000 – i.e., she is a Late-Late Filer. She has not received a determination on the merits of her discrimination claim.
These claims are typical of the Class in this case, and these named plaintiffs are adequate representatives of the absent members of the Class proposed in the Settlement Agreement. With regard to the Class Representatives, the Rules 23(a)(3) and 23(a)(4) requirements are clearly met.

52

Mr. Moorer’s name is on the Timely 5(g) List.

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ii. Class Counsel The Rule 23(a)(4) adequacy test is also intended to ensure that “counsel for the class is competent to represent the class.” Johnson, 248 F.R.D. at 54. This inquiry echoes a similar inquiry encapsulated in Rule 23(g)(4), which provides that the duty of class counsel is to “fairly and adequately represent the interests of the class.” Rule 23(g)(1) delineates the criteria for making that determination, stating that “[i]n appointing class counsel, the court must consider:
(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. In addition, the Court “may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class . . . .” Id. Here, proposed Class Counsel readily meet the requirements of Rule 23(a)(4) and Rule 23(g). Class Counsel collectively have already spent thousands of hours responding to questions from potential claimants regarding their rights under Section 14012 and preparing their cases for individual litigation prior to the commencement of settlement negotiations. In addition, Class Counsel, as a whole, have spent significant time and money in creating administrative systems to handle the volume of individuals seeking representation in Section 14012 claims and to answer the high volume of inquiries by potential claimants as this case has continued. Class Counsel also have created websites and other informational materials for Class Members to inform them of their rights under Section 14012. See Case Management Order No. 1 (Dec. 15, 2008) (Docket No. 31).
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Beyond the work and resources that Class Counsel already have dedicated to this consolidated action, Class Counsel also have the knowledge and expertise necessary to represent the interests of the Class. Plaintiffs have proposed as Lead Counsel three highly experienced attorneys: Andrew H. Marks of Crowell & Moring LLP in Washington, D.C., Henry Sanders of Chestnut, Sanders, Sanders, Pettaway & Campbell, L.L.C. in Selma, Alabama, and Gregorio A. Francis of Morgan & Morgan, P.A. in Orlando, Florida. These proposed lead counsel combine considerable class action and large case management experience, as well as, in the case of Mr. Sanders, invaluable experience as one of the principal counsel in the Pigford case. Both individually and collectively, Messrs. Marks, Sanders, and Francis are well qualified to represent the proposed Settlement Class. In addition to the proposed lead Class Counsel, Plaintiffs propose that the Court approve as additional Class Counsel the individuals identified in Exhibit 13 to this Motion. These counsel have significant experience with national class actions and/or significant litigation experience and will be able to advocate effectively for Class Members in the claims process outlined by the Agreement. For these reasons, the Court should find that proposed Class Counsel are both “adequate” and “competent” to represent the Class.
3. The Proposed Class Meets the Rule 23(b)(1)(B) Requirements of a “Limited Fund.”
In addition to satisfying the requirements of Rule 23(a), the proposed Settlement Class satisfies the requirements of Rule 23(b)(1)(B), which allows for certification where “prosecuting separate actions by or against individual class members would create a risk of . . . adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.” Certification of a “limited fund” class is appropriate “where the judgment in a nonclass action by or against an individual member of the
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class, while not technically concluding the other members, might do so as a practical matter.” Rule 23(b)(1) Advisory Committee Note (1966).
In the landmark case of Ortiz v. Fibreboard Corp., the Supreme Court identified three prerequisites for certification of a “limited fund class” under Rule 23(b)(1)(B):
(1) The “totals of the aggregated liquidated claims and the fund available for satisfying them, set definitely at their maximums, [must] demonstrate the inadequacy of the fund to pay all the claims;”
(2) “The whole of the inadequate fund [must] be devoted to the overwhelming claims;” and
(3) “The claimants identified by a common theory of recovery [must be] treated equitably among themselves.”
527 U.S. at 838-39. The proposed Settlement satisfies each of these criteria. The first prong of the Ortiz test includes two requirements – first, the court must
determine that the fund is “set at [its] maximum;” and second, the court must determine that the fund is inadequate to pay all claims. Here, Congress made clear in the Claims Resolution Act that the $1.25 billion which will become available for payment of Section 14012 claims upon approval of this Settlement is the maximum that will be provided for this purpose. The 2008 Farm Bill included a provision authorizing “appropriat[ion] [of] such sums [beyond the $100 million provided] as [we]re necessary to carry out [Section 14012],” § 14012(i)(2), and further required the Secretary to provide a “depletion of funds report” to Congress when 75 percent of the first $100 million had been depleted. § 14012(j)(2). The Claims Resolution Act expressly repealed these provisions, thus making clear that $1.25 billion is the full extent of funding that will be available for Section 14012 claims. Thus, the $1.25 billion Settlement fund is now “set at [its] maximum.” Ortiz, 527 U.S. at 838-39.
The second requirement of the first prong of the Ortiz test is also met here because the $1.25 billion fund will almost certainly be “inadequa[te] . . . to pay all the claims.” Id. Certainty
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of such inadequacy, however, is not required by Rule 23(b)(1)(B); rather, to warrant class certification, there need only be a “substantial probability – that is, less than a preponderance but more than a mere possibility – that if damages are awarded, the claims of earlier litigants would exhaust the defendants’ assets.” In re Agent Orange Prod. Liab. Litig., 100 F.R.D. 718, 726 (E.D.N.Y. 1983). In this case, the 2008 Farm Bill establishes that the award for a meritorious Track A claim is at least $62,500 – $50,000 in liquidated damages and $12,500 (25%) to offset tax liability on that award.53 See Agreement §§ II.KK, II.LL, II.NN. Even if no Track A claimants were entitled to debt relief and there were no successful Track B claimants, the Fund would be sufficient to compensate only 20,000 Track A claimants. More than 40,000 people already have filed claims in this case, and thousands more are expected to file claims after Notice is issued. Even if only 55,000 additional claimants come forward and only 50% of the total claimants prevail on their claims (a percentage significantly lower than the 69% success rate in Pigford),54 27,500 Class Members would have meritorious claims entitling them to, at least, the minimum Track A Award – well more than the 20,000 the $1.25 billion fund could pay in full. This calculation demonstrates that there is a “substantial probability” that the limited fund here will be “inadequa[te] to pay all the claims.” See In re Agent Orange, 100 F.R.D. at 726; Ortiz, 527 U.S. at 838-39. Accordingly, the first prong of Ortiz is met.
The second prong of the Ortiz test also is satisfied here because “the whole of the inadequate fund [minus a modest payment for Implementation Costs, Ombudsman Costs, and attorneys’ fees, is] devoted to the overwhelming claims.” Id. Here, as noted above, the claim awards are very likely to exceed the $1.25 billion, resulting in claim reductions until the sum

53

If a Track A claimant is entitled to debt relief, then the award would be even higher.

54

See www.pigfordmonitor.org/stats.

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total of all awards is $1.25 billion (minus Implementation Costs, Ombudsman costs, and attorneys’ fees) – the full amount of the inadequate fund.
Finally, as required by the third prong of Ortiz, the proposed Settlement establishes a fair system of distributing award payments among all successful claimants, such that the Class Members will be “treated equitably among themselves.” Ortiz, 527 U.S. at 838-39. The award calculation process under the Settlement for the different categories of claimants is explained in Section IV.A, supra. Plaintiffs submit that this process will ensure that similarly-situated claimants are provided with the same awards through the same payment mechanisms, while being subject to the same requirements of proof. This identical treatment of similarly-situated claimants is the hallmark of fairness and equity and, therefore, satisfies the third prong of Ortiz.
In short, the Settlement Class before the Court is readily ascertainable and manifestly satisfies the requirement of both Rule 23(a) and Rule 23(b)(1)(B) for certification as a limited fund class. The Court should therefore conditionally certify the proposed Class.
C. The Proposed Procedures for Objectors are Fair and Reasonable. Consistent with the safeguards provided by Rule 23(e), the proposed procedure for the
consideration of objections by Class Members, if any, to the Settlement Agreement is fair and reasonable and promotes the Parties’ overall goal of finally resolving these long-standing Pigford claims in a timely and efficient manner.
The proposed procedure requires any Class Member wishing to object to the Settlement to file his or her objection with the Court, and serve all counsel of record, at least 45 days prior to the Final Approval Hearing Date. Proposed Order (Exhibit 1) ¶ 28. The requirement for filing and service substantially in advance of the Final Approval Hearing will ensure that Class Counsel and objectors have the opportunity to meet and confer about specific objections in advance of the hearing, in the hope that such objections can be resolved without the Court’s
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intervention. In this Circuit as well as others, courts have found it fair and reasonable to require that objections to a settlement be filed within a short period after notice is distributed. See, e.g., Murthy v. Schafer, 579 F. Supp. 2d 110, 111 (D.D.C. 2008) (plaintiffs given 30 days to object to a settlement agreement); Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993) (31 days afforded between mailing of notice and deadline to opt out or object). Here, the proposed procedure provides between five and six weeks for objectors to develop their arguments, stating that such objections need not be filed and served until 45 days before the Final Approval Hearing. Assuming that Notice will be disseminated promptly after preliminary approval of this Settlement, and that the Final Approval Hearing will not be scheduled for at least 90 days after the Court grants preliminary approval of the Settlement, the procedures proposed here provide ample time for objectors to develop and state any concerns about the Settlement.
Finally, the proposed procedure for objections allows Class Members – or their counsel – to appear and be heard at the Fairness Hearing, provided they serve the Court, Class Counsel, and Defendant’s Counsel, with written notice of their intention to do so at least 30 days prior to the Final Approval Hearing Date. Ex. 1, Proposed Order at ¶ 28. See Bynum v. Govt. of Dist. of Columbia, 384 F. Supp. 2d 342, 347 (D.D.C. 2005) (objectors required to file an appearance with Court and all Counsel, a notice to appear, statement of objections, and all documentation, papers, or briefs at least two weeks before the Fairness Hearing). These procedures are designed to provide the parties supporting the Settlement with reasonable notice that allows for a prepared, thoughtful response to any proposed objections at the Fairness Hearing, and potentially to resolve such issues prior to their presentation before the Court.
In sum, the proposed procedure for objections will ensure that Class Members are afforded a fair, reasonable, and adequate opportunity to object to the terms of the Settlement
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Agreement, while providing the Parties the opportunity to address and thoughtfully respond to
any concerns that may be raised about the Settlement.
D. The Court Should Enter a Protective Order to Manage the Privacy and Use of the Pigford Timely 5(g) List, the Pigford Participants List, the Pigford Opt-Out List, and Other Materials Disclosed to Class Counsel Under Sections VIII.A.3 and VIII.A.4 of the Settlement Agreement.
On December 23, 2008, this Court entered a protective Order to govern disclosure and
use of the so-called “5(g) list,” a list containing names, addresses, home phone numbers, and
tracking numbers assigned by the Pigford Facilitator to individuals who, pursuant to Section 5(g)
of the Consent Decree, sought participation in the original Pigford action after the initial
deadline for filing claims had passed and whose “late-filing” petitions were denied by the
Pigford Arbitrator. Order of December 23, 2008 (Docket No. 34). Since its issuance, the Parties
to this action have complied fully with the terms of the December 23, 2008 Order.
Within the Settlement Agreement before the Court, the Parties have proposed that Lead
Class Counsel undertake the following duties:
(1) Obtain from the Pigford Facilitator (a) a current version of the Pigford Timely 5(g) List, (b) copies of all late-filing requests, (c) all other available information and correspondence regarding the late-filing status of Class Members, including any lists prepared by the Pigford Facilitator reflecting such status, (d) the Pigford Participants List, and (e) the Pigford Opt-Out List. Lead Class Counsel shall make these materials available to the Claims Administrator and the Track A and B Neutrals. This information shall be subject to any existing or future protective orders of the Court;
(2) Upon request by a claimant or Individual Counsel representing a claimant and after proof of compliance with any existing or future protective orders of the Court, provide to such Individual Counsel or claimant verification of the claimant’s presence on the most recent Pigford Timely 5(g) List, Pigford Participants List, and Pigford Opt-Out List in Class Counsel’s possession as well as copies of any of the communications or information in Class Counsel’s possession that refer or relate to the claimant on whose behalf the request is made.
Agreement §§ VIII.A.3, VIII.A.4. Plaintiffs recognize that the Pigford Timely 5(g) List, the
Pigford Participants List, the Pigford Opt-Out List, and the communications Class Counsel will
receive from the Pigford Facilitator under Section VIII.A.3 of the Settlement Agreement contain 60
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the same type of personal and/or confidential information that prompted the December 23, 2008 Order. Plaintiffs therefore believe that a similar Protective Order governing all of these lists and materials should be issued at this time.
The Protective Order provisions proposed by Plaintiffs are set forth in paragraphs 30-34 of the draft Order presented with this Motion (Ex. 1). This proposed Order, which is modeled after this Court’s December 23, 2008 Order, tracks the Settlement Agreement and provides Class Counsel with access to all lists and materials received from the Pigford Facilitator, subject to reasonable privacy protections and limitations on use for new client solicitation. This should provide all Class Counsel with the ability to determine whether the clients they already individually represent are eligible for relief under the Settlement. If a claimant is not already individually represented by Class Counsel, that claimant and any non-Class Counsel they may engage would be able to verify with Lead Class Counsel whether the claimant’s name appears on the Timely 5(g) List, the Pigford Opt-Out List, or the Pigford Participants List. This will afford non-Class Counsel and pro se claimants the same access as Class Counsel to the necessary information on these lists.
In addition, the proposed Protective Order would require Lead Class Counsel to make available to each claimant and his or her counsel, whether Class Counsel or Individual Counsel, copies of all materials relating to a late-filing request provided by the Pigford Facilitator. This will allow all claimants the same ability to demonstrate that they submitted a late-filing request, regardless of whether they choose to be represented by Class Counsel or Individual Counsel, or to proceed pro se.
In sum, the proposed Protective Order would provide Class Counsel, Individual Counsel, and pro se claimants the same access to information necessary to prove individual eligibility under the Settlement, while at the same time protecting individual privacy and confidentiality by
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imposing reasonable limits on the dissemination of that information. For these reasons, Plaintiffs ask that the Court, pursuant to Rule 26(c), enter the proposed Protective Order.55
V. CONCLUSION AND REQUEST FOR HEARING The Settlement before the Court is a landmark achievement in the struggle for civil rights
in the United States. If approved by the Court, it will resolve once and for all the claims of Pigford claimants who were denied relief on their discrimination claims in Pigford merely because they filed their claims late. While modest cash awards cannot right the wrong for a farmer who lost his or her farm because he or she did not have access to farm credit, the payments under the Settlement are an unquestionably important step toward justice. More than 40,000 claimants already have come forward seeking relief under Section 14012 of the Farm Bill. Thousands more will make themselves known after the proposed Notice is distributed. Under this Settlement, these claimants will have a new opportunity to present and prove their discrimination claims, under standards similar to what they would have been required to satisfy in Pigford.
The Settlement before the Court is a fair, reasonable, and adequate resolution of Section 14012 claims for the proposed Class. Accordingly, Plaintiffs move this Court to preliminarily approve the Settlement, conditionally certify a Rule 23(b)(1) Class, schedule a Fairness Hearing to consider Final Approval of the Settlement after the Notice has been distributed, and to enter the proposed Preliminary Approval Order attached to this Motion (Ex. 1).

55

The distribution of 5(g) information agreed upon in the Settlement Agreement would effectively

supersede the December 23, 2008 Order governing the same topics. Accordingly, as part of the proposed

Protective Order in Exhibit 1, the December 23, 2008 Order should be rescinded.

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Respectfully submitted,

/s/ Henry Sanders, Esq. Fayarose Sanders, Esq. CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL, L.L.C. One Union Street Selma, AL 36701 Tel: (334) 875-9264 Fax: (334) 875-9853
/s/ Gregorio A. Francis, Esq. Alphonso Michael Espy, Esq. Scott W. Weinstein, Esq. J. Andrew Meyer, Esq. MORGAN & MORGAN, P.A. 20 North Orange Avenue, Suite 1600 Orlando, FL 32801 Tel: (407) 420-1414
/s/ Marc Boutwell, Esq. Charles Edwards, Esq. THE LAW OFFICES OF MARC BOUTWELL, PLLC P.O. Box 956 Lexington, MS 39095 Tel: (662) 834-9029 Fax: (662) 834-3117
/s/ Jimmy S. Calton, Jr., Esq. Jimmy S. Calton, Sr., Esq. LAW OFFICES OF CALTON & CALTON 226 East Broad Street Eufaula, AL 36027 Tel: (334) 687-3563 Fax: (334) 687-3564

/s/ Andrew H. Marks, Esq., D.C. Bar No. 932269 Laurel Pyke Malson, Esq. D.C. Bar No. 317776 Michael W. Lieberman Esq. D.C. Bar No. 988835 CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004 Tel: (202) 624-2920 Fax: (202) 628-5116
/s/ Don O. Gleason, Jr., Esq. Michael McHenry, Esq. GLEASON & MCHENRY P.O. Box 7316 Tupelo, MS 38802 Tel: (662) 690-9824 Fax: (662) 690-9826
/s/ Stephen Gowan, Esq. GOWAN LAW OFFICE, PLLC P.O. Box 38 McAdams, MS 39107 Tel: (662) 290-0042 Fax: (662) 290-0042
/s/ Donald McEachin, Esq. MCEACHIN & GEE LLP 4719 Nine Mile Road Henrico, VA 23223 Tel: (804) 226-4111 Fax: (804) 226-8888

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/s/ Walter B. Calton, Esq. Attorney at Law 312 East Broad Street Eufaula, AL 36027 Tel: (334) 687-2407 Fax: (334) 687-2466
/s/ Reed Colfax, Esq., D.C. Bar No. 471430 John P. Relman, Esq. Jennifer Klar, Esq. RELMAN & DANE, PLLC 1225 – 19th Street N.W., Suite 600 Washington, DC 20036-2456 Tel: (202) 728-1888 Fax: (202) 728-0848
/s/ Othello C. Cross, Esq. Jesse L. Kearney, Esq. CROSS & KEARNEY, PLLC 1022 W. 6th Avenue Pine Bluff, AR 71601 Tel: (870) 536-4056 Fax: (870) 536-0216
/s/ James Scott Farrin, Esq. Eric Haase, Esq. LAW OFFICES OF JAMES SCOTT FARRIN 280 South Mangum Street, Suite 400 Durham, NC 27701 Tel: (919) 688-4991 Fax: (919) 688-4468
/s/ Phillip L. Fraas, Esq., D.C. Bar No. 211219 STINSON MORRISON HECKER LLP 1150 – 18th Street, N.W., Suite 800 Washington, DC 20036-3816 Tel: (202) 572-9904 Fax: (202) 572-9982
DCACTIVE-14694910.10

/s/ Harris L Pogust, Esq. Tobias L. Millrood, Esq. POGUST, BRASLOW & MILLROOD, LLC 161 Washington Street, Suite 1520 Conshohocken, PA 19428 Tel: (610) 941-4204 Fax: (610) 941-4245
/s/ Michael A. Rutland, Esq. RUTLAND & JANKIEWICZ LLC 128 N. Orange Ave. Eufaula, AL 36027 Tel: (334) 687-9899
/s/ Kindaka Sanders, Esq. Attorney at Law 209 Broad St. Selma, AL 36701 Tel: (334) 327-1993 Fax: (334) 460-6611
/s/ Joseph P. Strom, Jr., Esq. Mario A. Pacella, Esq. Bakari Sellers, Esq. STROM LAW FIRM, LLC 2110 N. Beltline Blvd., Suite A Columbia, SC 29204 Tel: (803) 252-4800 Fax: (803) 252-4801
/s/ Anurag Varma, Esq., D.C. Bar No. 471615 Benjamin G. Chew, Esq. Jude Kearney, Esq. Ramona Quillet, Esq. PATTON BOGGS, LLP 2550 M Street, N.W. Washington, DC 20037 Tel: (202) 457-6490 Fax: (202) 457-6315
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/s/ David J. Frantz, Esq., D.C. Bar No. 202853 Brian P. Phelan, Esq. CONLON, FRANTZ & PHELAN, LLP 1818 N Street, N.W., Suite 400 Washington, DC 20036 Tel: (202) 331-7050 Fax: (202) 331-9306
/s/ William Lewis Garrison, Esq. William L. Bross, Esq. Gayle L. Douglas, Esq. HENINGER, GARRISON & DAVIS LLC Post Office Box 11310 2224 – 1st Avenue North Birmingham, AL 35202 Tel: (205) 326-3336 Fax: (205) 326-3332
Dated: March 30, 2011

/s/ Timothy K. Lewis, Esq. Ralph G. Wellington, Esq. Bruce P. Merenstein, Esq. SCHNADER HARRISON SEGAL & LEWIS, LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Tel: (202) 419-4216 Fax: (202) 419-3454

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EXHIBIT 1
to the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of a Rule 23(b)(1)(B) Class, And for Other Purposes
In re Black Farmers Discrimination Litigation Case No. 08-mc-0511-PLF (D.D.C.)
Proposed Preliminary Approval Order

Case 1:08-mc-00511-PLF Document 161-2 Filed 03/30/11 Page 2 of 18

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

)

This document relates to:

)

)

ALL CASES

)

)

Misc. No. 08-mc-0511 (PLF)

PLAINTIFFS’ PROPOSED ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, CERTIFYING A RULE 23(b)(1)(B) SETTLEMENT CLASS, AND FOR OTHER PURPOSES The Court has reviewed and considered Plaintiffs’ Motion for Preliminary Approval of Settlement Agreement, Certification of a Rule 23(b)(1)(B) Settlement Class, and for Other Purposes (“Motion”), including the exhibits thereto, and has reviewed and considered the terms and conditions of the Settlement Agreement dated February 18, 2010, revised as of March 23, 2011 (the “Settlement Agreement”). Upon consideration of these submissions and the entire record herein, with good cause for this Order having been shown, it is hereby ORDERED that the terms of the Settlement Agreement are preliminarily approved, subject to further consideration thereof at the Final Approval Hearing provided for below. The Court finds that the proposed Settlement Agreement is within the range of reasonableness so that Notice of the proposed Settlement should be sent to the Class as provided in Paragraphs 16-18 of this Order.

Case 1:08-mc-00511-PLF Document 161-2 Filed 03/30/11 Page 3 of 18
CERTIFICATION OF THE SETTLEMENT CLASS 1. For purposes of settlement only, and pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(1)(B), the action styled as In re Black Farmers Discrimination Litig., Misc. No. 08-mc-0511 (PLF) (D.D.C.), is conditionally certified as a class action on behalf of the following persons (collectively, the “Class” and each member of the Class as a “Class Member”), effective upon Final Approval of the Settlement Agreement: All individuals: (1) who submitted late-filing requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree. Based on the Court’s review of the Motion and supporting materials, the Court finds that the proposed Class satisfies Rules 23(a) and 23(b)(1)(B). 2. The Court finds that the following Representative Plaintiffs will fairly and adequately protect the interests of the Class and therefore conditionally appoints them as representatives of the Class, pursuant to Federal Rule of Civil Procedure 23(a)(4):
James Copeland 3 Effingham Court Columbus, GA 31909 Earl Moorer, on behalf of the Estate of John Moorer 292 Benton Rd. Lowndesboro, AL 36752 Marshallene McNeil 472 Hwy 41 North Camden, AL 36726
2

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3. For purposes of effectuating the Settlement Agreement, the following individuals
are conditionally appointed Lead Class Counsel:
Andrew H. Marks, Esq. CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (T): 202-624-2500 (F): 202-628-5116
Henry Sanders, Esq. CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL, LLC One Union Street Selma, AL 36701 (T): 334-875-9264 (F): 334-875-9853
Gregorio A. Francis, Esq. MORGAN & MORGAN, P.A. 20 North Orange Avenue, Suite 1600 Orlando, FL 32801 (T): 407-420-1414
These Lead Class Counsel are responsible for carrying out the duties of Lead Class Counsel set
forth in the Settlement Agreement.
4. Pursuant to Federal Rule of Civil Procedure 23(g), for purposes of effectuating
the Settlement Agreement, the following individuals are conditionally appointed as Class
Counsel:
Henry Sanders, Esq.** Fayarose Sanders, Esq.** CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL, LLC One Union Street Selma, AL 36701 (T): 334-875-9264 (F): 334-875-9853
3

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David Frantz, Esq.** Brian P. Phelan, Esq. CONLON, FRANTZ & PHELAN, LLP 1818 N Street, N.W., Suite 400 Washington, DC 20036 (T): 202-331-7050 (F): 202-331-9306
** Indicates membership on Plaintiffs’ Steering Committee
Othello C. Cross, Esq.** Jesse L. Kearney, Esq. CROSS & KEARNEY, PLLC 1022 W. 6th Avenue Pine Bluff, AR 71601 (T): 870-536-4056 (F): 870-536-0216
Andrew H. Marks, Esq.** Laurel Pyke Malson, Esq.** Michael W. Lieberman, Esq. CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004 (T): 202-624-2500 (F): 202-628-5116
Don O. Gleason, Jr., Esq. Michael McHenry, Esq. GLEASON & MCHENRY P.O. Box 7316 Tupelo, MS 38802 (T): 662-690-9824 (F): 662-690-9826
Stephen Gowan, Esq. GOWAN LAW OFFICE, PLLC P.O. Box 38 McAdams, MS 39107 (T): 662-290-0042 (F): 662-290-0042
4

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William Lewis Garrison, Esq. William L. Bross, Esq. Gayle L. Douglas, Esq. HENINGER, GARRISON & DAVIS LLC P.O. Box 11310 2224 – 1st Avenue North Birmingham, AL 35202 (T): 205-326-3336 (F): 205-326-3332
Kindaka Sanders, Esq. Attorney at Law 209 Broad Street Selma, AL 36701 (T): 334-327-1993 (F): 334-460-6611
Jimmy S. Calton, Jr., Esq. Jimmy S. Calton, Sr., Esq. LAW OFFICES OF CALTON & CALTON 226 East Broad Street Eufaula, AL 36027 (T): 334-687-3563 (F): 334-687-3564
James Scott Farrin, Esq.** Eric Haase, Esq. LAW OFFICES OF JAMES SCOTT FARRIN 280 South Mangum Street, Suite 400 Durham, NC 27701 (T): 919-688-4991 (F): 919-688-4468
Marc Boutwell, Esq. Charles Edwards, Esq. THE LAW OFFICES OF MARC BOUTWELL, PLLC P.O. Box 956 Lexington, MS 39095 (T): 662-834-9029 (F): 662-834-3117
5

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Donald McEachin, Esq. MCEACHIN & GEE LLP 4719 Nine Mile Road Henrico, VA 23223 (T): 804-226-4111 (F): 804-226-8888
Gregorio A. Francis, Esq.** Scott W. Weinstein, Esq.** Alphonso Michael Espy, Esq. J. Andrew Meyer, Esq. MORGAN & MORGAN, P.A. 20 North Orange Avenue, Suite 1600 Orlando, FL 32801 (T): 407-420-1414
Anurag Varma, Esq. Benjamin G. Chew, Esq. Jude Kearney, Esq. Ramona Quillet, Esq. PATTON BOGGS, LLP 2550 M Street, N.W. Washington, DC 20037 (T): 202-457-6490 (F): 202-457-6315
Harris L. Pogust, Esq.** Tobias L. Millrood, Esq. POGUST, BRASLOW & MILLROOD 161 Washington Street, Suite 1520 Conshohocken, PA 19428 (T): 610-941-4204 (F): 610-941-4245
Reed Colfax, Esq. John P. Relman, Esq. Jennifer Klar, Esq. RELMAN & DANE, PLLC 1225 – 19th Street N.W., Suite 600 Washington, DC 20036-2456 (T): 202-728-1888 (F): 202-728-0848
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Michael A. Rutland, Esq. RUTLAND & JANKIEWICZ, LLC 128 N. Orange Ave. Eufaula, AL 36027 (T): 334-687-9899
Phillip L. Fraas, Esq.** STINSON MORRISON HECKER LLP 1150 – 18th Street N.W. #800 Washington, DC 20036 (T): 202-572-9904 (F): 202-572-9982
Joseph P. Strom, Jr., Esq.** Mario A. Pacella, Esq. Bakari Sellers, Esq. STROM LAW FIRM, LLC 2110 N. Beltline Blvd., Suite A Columbia, SC 29204 (T): 803-252-4800 (F): 803-252-4801
Walter B. Calton, Esq. Attorney at Law 312 East Broad Street Eufaula, AL 36027 (T): 334-687-2407 (F): 334-687-2466
These Class Counsel are responsible for carrying out the duties of Class Counsel as set forth in
the Settlement Agreement.
5. The certification of the Class, appointment of Representative Plaintiffs as
representatives of the Class, and appointment of Class Counsel, Lead Class Counsel, and the
Plaintiffs’ Steering Committee are solely for the purposes of effectuating the Settlement
Agreement. If the Settlement Agreement is terminated or is not consummated for any reason,
the foregoing certification of the Class, appointment of the Representative Plaintiffs as
representatives of the Class, and appointment and designation of Class Counsel, Lead Class
Counsel, and the Plaintiffs’ Steering Committee, shall be void and of no effect and both
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Plaintiffs and the Secretary of the United States Department of Agriculture (the “Defendant”) (collectively “the Parties”) shall be returned to the status each occupied before entry of this Order without prejudice to any legal argument that any of the Parties to the Settlement Agreement might have asserted but for the Settlement Agreement.
INJUNCTION AGAINST FILING OF NEW AND AMENDED ACTIONS 6. All members of the prospective Class, and any other person, representative, or entity, are hereby barred and enjoined from: (i) filing, commencing, or intervening in any claim, lawsuit, arbitration, administrative, regulatory or other proceeding arising out of Section 14012 of the Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-234 and/or 110-246, (“Section 14012”), and (ii) organizing or soliciting the participation of any members of the Settlement Class into a separate class for the purposes of pursuing a purported class action arising out of Section 14012 (including by seeking to amend a pending complaint to include class allegations, or by seeking class certification in a pending action). The Court finds that the issuance of this injunction is necessary and appropriate in aid of the Court's jurisdiction over the action and to protect and effectuate the Court's review of the Settlement. 7. All proceedings in the above-captioned Consolidated Action, other than that such as may be necessary to carry out the terms and conditions of the Settlement Agreement or the responsibilities thereto, are stayed and suspended until further Order of this Court.
APPROVAL OF THE COST CAP FOR IMPLEMENTATION COSTS 8. The “Cost Cap,” as defined in Section II.I of the Settlement Agreement, is set at $35,000,000. 9. Class Counsel may move for the payment of up to an additional $3,500,000 from 2008 Funds to pay for reasonable additional fees and costs above the Cost Cap incurred by the
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Track A Neutrals, the Track B Neutrals, and/or the Claims Administrator arising out of the reporting requirements and/or the audit provisions of Section 201(h) of Pub. L. 111-291, 124 Stat. 3064 (Dec. 8, 2010).
APPROVAL OF CLAIMS ADMINISTRATOR AND NEUTRALS 10. Epiq Systems, Inc. is approved to serve as Claims Administrator for purposes of effectuating the Settlement Agreement and shall fulfill the roles designated for the Claims Administrator in the Settlement Agreement. 11. The McCammon Group is approved to serve as the Track A Neutral for purposes of effectuating the Settlement Agreement and to fulfill the role designated for the Track A Neutral in the Settlement Agreement. 12. Michael L. Lewis, Esq., of JAMS Mediation, Arbitration, and ADR Services, is approved to serve as the Track B Neutral for purposes of effectuating the Settlement Agreement and to fulfill the role designated for the Track B Neutral in the Settlement Agreement. 13. Each individual designated by The McCammon Group or Michael L. Lewis to serve as a Track A Neutral or Track B Neutral must notify Lead Class Counsel of their designation. Within ten (10) days of such notification, Lead Class Counsel shall inform the Court of the names of any individuals so designated so that the Court may administer an oath to each individual that he or she will fulfill his or her respective role faithfully, fairly, and to the best of his or her ability. No individual designated as a Track A or Track B Neutral may take any action in that role before taking the aforementioned oath administered by the Court. 14. The Claims Administrator, Track A Neutral, and Track B Neutral shall have no liability to any claimants, including both Class Members and other individuals seeking to participate in the claims program provided for in the Settlement Agreement and approved by this
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Court. Accordingly, these entities, as well as their officers, employers, employees, independent contractors, vendors, subcontractors, shareholders, and agents, shall not be subject to any suits, claims, actions, or liabilities that may be asserted by any such claimants.
15. Payments to the Claims Administrator, the Track A Neutral, and the Track B Neutral are Implementation Costs that shall be paid in accordance with Sections IV.C, IV.D, IV.E, IV.F, and IV.H of the Settlement Agreement upon application of Class Counsel and approval by this Court. Such payments shall not, in total, exceed the Cost Cap.
FORM AND TIMING OF NOTICE 16. The Court finds the proposed Notice Program (Ex. 5, Att. 3 to Motion) to be appropriate for the Class, practicable under the circumstances, and designed to fairly ensure the protection of the interests of absent parties who are to be bound by it. When completed, it shall constitute due and sufficient notice of the Settlement Agreement and the Final Approval Hearing to all persons affected by and/or eligible to participate in the remedial processes set forth in the Settlement Agreement or the Final Approval Hearing, and therefore will satisfy the requirements of due process and the Federal Rules of Civil Procedure. 17. Pursuant to Federal Rule of Civil Procedure 23(e)(1), no later than thirty (30) days after entry of this Order, the Plaintiffs shall cause copies of the forms of Notice proposed in the Notice Program to be disseminated in the manner delineated in the Notice Program. 18. The costs of implementing the Notice Program shall be paid out of the “interim Implementation Costs” authorized in Sections IV.C and IV.D of the Settlement Agreement. 19. No later than twenty (20) days prior to the Final Approval Hearing, the Notice Provider shall file with the Court a declaration confirming compliance with the Notice procedures approved by this Court.
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CONTINGENT ATTORNEYS’ FEES 20. For purposes of effectuating the Settlement Agreement, a “Track A Individual Counsel Fee” (as defined in the Settlement Agreement) may not exceed 2% of a Class Member’s Final Track A Award. 21. For purposes of effectuating the Settlement Agreement, a “Track B Fee” (as defined in the Settlement Agreement) may not exceed 8% of a Class Member’s Final Track B Award.
PRELIMINARY APPROVAL OF THE FEE AWARD 22. The Court finds that a Fee Award (as defined in the Settlement Agreement) of between 4.1% and 7.4% of the Fee Base (as defined in the Settlement Agreement) appears to be a fair, reasonable, and adequate range for a Fee Award in this action, and this range therefore is preliminarily approved for purposes of providing Notice to the Class.
EXISTING RETAINER AGREEMENTS 23. No counsel who is designated as Class Counsel by this Order shall seek to enforce the terms of any existing contingency fee arrangements with Class Members. 24. Any counsel who is not designated as Class Counsel and who is retained by a member of the Class to represent such an individual for a Track A claim under the Settlement Agreement shall be limited to a 2% contingency fee. 25. Any counsel who is retained by a member of the Class to represent such an individual for a Track B claim under the Settlement Agreement shall be limited to an 8% contingency fee.
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FINAL APPROVAL HEARING: RIGHT TO APPEAR AND OBJECT 26. A Final Approval Hearing shall take place before the Court on ___________, 2011, at ____ a.m. [p.m.] before the Honorable Paul L. Friedman, at the United States District Court for the District of Columbia, 333 Constitution Avenue, N.W., Washington, D.C. 20001 to determine whether the Settlement Agreement should be finally approved by this Court as fair, reasonable, and adequate. 27. The Court may finally approve the Settlement Agreement at or after the Final Approval Hearing with any appropriate modifications agreed to by the Parties and without further notice to the Class Members. 28. Any Class Member wishing to raise objections to the Settlement Agreement that the Court may consider before Final Approval of the Settlement Agreement must adhere to the following process for submitting such objections:
a. Any member of the Class may present written objections explaining why the Settlement Agreement should not be approved as fair, reasonable, and adequate, or why attorneys’ fees and expenses to Class Counsel should not be awarded in the amounts requested. Any Class Member who wishes to object to any aspect of the Settlement Agreement must, no later than _____, 2011 (45 days prior to Final Approval Hearing), file a written statement of the objection(s) with the Court and serve such objection(s) on Lead Class Counsel and Defendant’s Counsel either by (a) ECF filing with the Court or (b) first-class mail plus fax and/or electronic mail. The written statement of the objection(s) must include (1) a statement explaining the basis for the objector’s belief that he or she is a Class
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Member and eligible for relief under the Settlement Agreement; (2) a detailed statement of the Class Member’s objection(s), as well as the specific reasons, if any, for each objection, including any evidence and legal authority the Class Member wishes to bring to the Court’s attention and any evidence the Class Member wishes to introduce in support of his or her objection(s); (3) the Class Member’s name, address, and telephone number; and (4) any other supporting papers, materials, or briefs the Class Member wishes the Court to consider when reviewing the objection. b. Class Members may raise an objection either on their own or through an attorney hired at their own expense. If a Class Member hires an attorney to represent him or her for purposes of filing an objection, the attorney must: (1) file a notice of appearance with the Clerk of Court no later than thirty (30) days prior to the Final Approval Hearing Date; (2) include with the notice of appearance a statement identifying all other class action cases in which the attorney has appeared either as counsel on behalf of an objecting class member or as lead counsel on behalf of a class, including the case style, case number, and court; (3) include with the notice of appearance, a statement detailing the ultimate disposition of any objection filed by the attorney in any class action case and describe whether the objection was resolved for a payment of fees with no alteration to the underlying class action settlement agreement or, in the event the objection was resolved with an enhancement to the underlying class action settlement agreement, describe those enhancements and how the class
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action settlement was modified; and (4) serve a copy of the notice and statements on Lead Class Counsel and Defendant’s Counsel by (a) ECF filing with the Court or (b) first-class mail plus either fax and/or electronic mail at least thirty (30) days prior to the Final Approval Hearing Date. c. Class Members, or their attorneys, who wish to appear at the Fairness Hearing must file with the Court and serve on Lead Class Counsel and Defendant’s Counsel, by (1) ECF filing with the Court or (2) first-class mail plus either fax and/or electronic mail, at least thirty (30) days prior to the Final Approval Hearing Date a notice of their intention to appear at the Fairness Hearing. d. Any Class Member who fails to comply with the provisions of the preceding subsections shall waive and forfeit any and all rights he or she may have to object to the Settlement Agreement, and shall be bound by all the terms of this Settlement Agreement and by all proceedings, orders, and judgments in the litigation. 29. The Court may adjourn the Final Approval Hearing, or any subsequent hearings, including the consideration of the application for attorneys’ fees, costs, and expenses, without any additional notice to putative Class Members other than an announcement in open court. ORDER REGARDING LISTS AND MATERIAL RECEIVED FROM THE PIGFORD FACILITATOR 30. For the purpose of allowing Lead Class Counsel to fulfill its duties under Sections VIII.A.3 and VIII.A.4 of the Settlement Agreement, the Pigford Facilitator is hereby directed to provide to Lead Class Counsel a current version of the Pigford Timely 5(g) List, the Pigford Participants List, and the Pigford Opt-Out List (collectively, the “Pigford Lists”), and copies of
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all late-filing requests and all other available information and correspondence regarding the late-

filing status of Class Members, including any lists prepared by the Pigford Facilitator reflecting

such status (collectively, “5(g) Communications”).

31.

The Pigford Lists and 5(g) Communications may be used by Class Counsel or

other counsel only for the purposes set forth in the Settlement Agreement. Accordingly,

a. Counsel other than Class Counsel may not use the Pigford Lists and/or

5(g) Communications to communicate with individuals unless such

individuals were represented by the contacting counsel prior to disclosure

of the list;

b. Class Counsel or other counsel may use the Pigford Lists and/or 5(g)

Communications to determine whether a particular individual is eligible to

pursue a claim in the non-judicial claims process delineated in Section V

of the Settlement Agreement;

c. Upon request, Lead Class Counsel shall provide verification to a claimant

under the Settlement Agreement and, if applicable, his or her counsel, that

the claimant’s name appears on the Pigford Lists;

d. Upon request, Lead Class Counsel shall transmit to each claimant and his

or her counsel within thirty (30) days of such request all 5(g)

Communications regarding that claimant, provided that the claimant or his

or her counsel has provided written certification in writing that he or she

will comply with the terms of this Order and other protective orders

entered by this Court;

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e. No information in the Pigford Lists and/or 5(g) Communications will be disclosed by Class Counsel or other counsel to any other person or entity, including any farmers’ advocacy organizations, for recruitment, recruitment-related, or any other purposes;
f. Lead Class Counsel shall transmit an electronic copy of the Pigford Lists to all Class Counsel within ten (10) days of receipt of such lists from the Pigford Facilitator;
g. Each copy of the Pigford Lists provided to Class Counsel shall be stamped “PRODUCED SUBJECT TO PROTECTIVE ORDER;”
32. Nothing in this Order shall restrict in any way the ability of Class Counsel in Pigford v. Glickman to fulfill their duties as Class Counsel in that action; and
33. Nothing in this Order shall restrict in any way the Defendant’s use of the Pigford Lists or 5(g) Communications.
34. This Court’s Order on December 23, 2008, entitled “Protective Order Regarding ‘5(g) List’” (Docket No. 34) is hereby withdrawn.
OTHER PROVISIONS 35. The Parties are authorized to communicate with putative Class Members regarding the provisions of the Settlement Agreement so long as such communications are not inconsistent with the Settlement Agreement. The Secretary shall refer to the toll-free telephone number operated by the Claims Administrator any inquiries from putative Class Members about claims to be filed under the Settlement Agreement. 36. Neither the fact of settlement, nor the Settlement Agreement, nor any provision therein, nor any negotiations, statements, or proceedings in connection therewith, shall be
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Case 1:08-mc-00511-PLF Document 161-2 Filed 03/30/11 Page 18 of 18 construed as, or be deemed to be evidence of, an admission or concession on the part of any of the Representative Plaintiffs, Class Counsel, any putative Class Members, the Secretary, or the United States of any liability or wrongdoing by them, or that the claims and defenses that have been, or could have been, asserted in In re Black Farmers Discrimination Litigation were or were not meritorious.
SO ORDERED. ______________________________________ PAUL L. FRIEDMAN United States District Judge
DATE: ____________, 2011
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EXHIBIT 2
to the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of a Rule 23(b)(1)(B) Class, And for Other Purposes
In re Black Farmers Discrimination Litigation Case No. 08-mc-0511-PLF (D.D.C.)
Settlement Agreement

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 2 of 119

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

Misc. No. 08-mc-0511 (PLF)

SETTLEMENT AGREEMENT
February 18, 2010 (Revised and Executed as of March 23, 2011)

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 3 of 119
TABLE OF CONTENTS
I. RECITALS........................................................................................................................ 1 II. DEFINITIONS.................................................................................................................. 3 III. THE SETTLEMENT CLASS ......................................................................................... 9 IV. DISMISSAL AND FUNDING ......................................................................................... 9 V. NON-JUDICIAL CLAIMS PROCESS ........................................................................ 15
A. GENERAL REQUIREMENTS ............................................................................ 15 B. REVIEW OF THE CLAIM SUBMISSION AND THE CLASS MEMBERSHIP
DETERMINATION ............................................................................................. 19 C. TRACK A ............................................................................................................. 22 D. TRACK B ............................................................................................................. 24 E. DISTRIBUTION OF CLAIM DETERMINATIONS AND SETTLEMENT
FUNDS ................................................................................................................. 27 VI. OMBUDSMAN ............................................................................................................... 31 VII. ACCELERATIONS AND FORECLOSURES ............................................................ 32 VIII. THE DUTIES OF CLASS COUNSEL ......................................................................... 33 IX. PROCEDURES GOVERNING APPROVAL OF THIS AGREEMENT ................. 36 X. ATTORNEYS’ FEES, EXPENSES, AND COSTS...................................................... 38 XI. CONDITIONS THAT RENDER AGREEMENT VOID OR VOIDABLE .............. 39 XII. EFFECT OF AGREEMENT IF VOIDED................................................................... 40 XIII. RELEASES ..................................................................................................................... 41 XIV. NO ADMISSION OF LIABILITY ............................................................................... 42 XV. CONTACT INFORMATION FOR THE SECRETARY AND FSA......................... 43 XVI. CONTINUING JURISDICTION.................................................................................. 43 XVII. INTEGRATION ............................................................................................................. 43 XVIII. MODIFICATION ........................................................................................................... 43 XIX. DUTIES CONSISTENT WITH LAW AND REGULATIONS ................................. 44 XX. DUTY TO DEFEND....................................................................................................... 44 XXI. HEADINGS ..................................................................................................................... 44 XXII. SEVERABILITY ............................................................................................................ 44 XXIII. COUNTERPARTS ......................................................................................................... 44
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EXHIBITS
EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G EXHIBIT H EXHIBIT I EXHIBIT J

"TRACK A" CLAIM DETERMINATION FORM "TRACK B" CLAIM DETERMINATION FORM CLAIM FORM AUTHORIZATION TO DISCLOSE DEBT INFORMATION FORM QUARTERLY DISBURSEMENT REPORTING FORM YOUR CLAIM PACKAGE IS NOT COMPLETE YOU HAVE NOT SUBMITTED YOUR CLAIM ON TIME YOU ARE NOT A CLASS MEMBER QUARTERLY CLAIM DETERMINATION REPORTING FORM INTERIM LETTER TO APPROVED CLAIMANTS

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SETTLEMENT AGREEMENT
This Settlement Agreement (“Agreement”) is entered into between the Signatory Plaintiffs, by and through Signatory Plaintiffs’ Counsel, and the Secretary of the U.S. Department of Agriculture (“the Secretary” or “USDA”), by and through the Secretary’s Counsel, to resolve, fully and forever, the claims raised or that could have been raised in the cases consolidated in In re Black Farmers Discrimination Litigation, No. 08-mc-511 (D.D.C.), including, but not limited to, the claims asserted under Public Law No. 110-234 and/or 110-246, § 14012 (2008).
I. RECITALS
A. In 1997, a putative class of African-American farmers brought suit against USDA under, inter alia, the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-1691f, for alleged discriminatory actions in the acquisition of farm credit, credit servicing, and non-credit farm benefits. This case was called Pigford v. Glickman, No. 97-1978 (D.D.C.) (“Pigford ”).
B. On January 5, 1999, the Court in Pigford certified the following Class pursuant to Federal Rule of Civil Procedure 23(b)(3):
All African American farmers who (1) farmed, or attempted to farm, between January 1, 1981 and December 31, 1996; (2) applied to [USDA] during that time period for participation in a federal farm credit or benefit program and who believed that they were discriminated against on the basis of race in USDA’s response to that application; and (3) filed a discrimination complaint on or before July 1, 1997, regarding USDA’s treatment of such farm credit or benefit application.
C. After notice and an opportunity to be heard by all Pigford Class Members, on April 14, 1999, the Court approved the terms of a Consent Decree which provided the Class Members with a choice of non-judicial processes (i.e., “Track A” or “Track B”) for resolving their discrimination claims.
D. The Pigford Consent Decree directed that Pigford Class Members who did not opt out of the Class would have 180 days from entry of the Decree in which to submit completed claim packages. An extension of this deadline until September 15, 2000, was available under Section 5(g) of the Consent Decree (“Section 5(g)”), but only where a Class Member could show that his or her late filing was due to “extraordinary circumstances” beyond the Class Member’s control.
E. Approximately 20,000 individuals filed claims under the Pigford Consent Decree within the 180-day deadline, which was October 12, 1999. On or after October 1

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13, 1999, and on or before September 15, 2000, approximately 61,000 additional individuals sought to participate in the Decree’s claim resolution processes pursuant to Section 5(g). Approximately 2,700 of these individuals were deemed to satisfy the “extraordinary circumstances” test and were permitted to participate in the claim resolution processes. Between September 16, 2000, and June 18, 2008, thousands of additional individuals unsuccessfully sought to participate.
F. Notwithstanding that more than 60,000 individuals were denied participation under the Pigford Consent Decree, and if Pigford Class Members, were bound by the Decree and deemed to have waived and released all claims against USDA that were or could have been raised in Pigford, on May 22, 2008, and again on June 18, 2008, Congress created a new cause of action in Section 14012 of the Food, Conservation, and Energy Act of 2008 for such individuals.
G. Section 14012(i)(1) designates $100,000,000 to pay meritorious Section 14012 claims.
H. Section 14012(d) provides that “[i]t is the intent of Congress that [Section 14012] be liberally construed so as to effectuate its remedial purpose of giving a full determination on the merits for each Pigford claim previously denied that determination.”
I. Section 14012(f) further provides for “expedited resolutions” whereby a person filing a complaint under Section 14012 “may seek liquidated damages of $50,000, discharge of the debt that was incurred under, or affected by, the 1 or more programs that were the subject of the 1 or more discrimination claims that are the subject of the person’s complaint, and a tax payment in the amount equal to 25 percent of the liquidated damages and loan principal discharged[;]” while Section 14012(g) provides an action whereby a plaintiff may seek “actual damages sustained.”
J. On November 30, 2010 and December 8, 2010 respectively, Congress passed and the President signed into law Pub. L. 111-291, which provided an additional $1,150,000,000 “to carry out the terms of [this] Settlement Agreement.”
K. As of January 1, 2011, more than 40,000 plaintiffs had filed individual claims under § 14012 in 23 complaints in the U.S. District Court for the District of Columbia, which have been consolidated under this caption in the Consolidated Case.
L. In order to bring the Consolidated Case to a close FOREVER and FINALLY, the Parties have determined to settle the Consolidated Case, including all claims that the proposed Class and Class Members have brought or could have brought in the 2

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Consolidated Case, and including all claims that have been or could have been brought under Section 14012.
M. The Signatory Plaintiffs believe that the terms of this Agreement are fair, reasonable, and adequate; that this Agreement provides substantial benefits to the proposed Class and the Class Members; and that settlement of the Consolidated Case on the terms set forth in this Agreement is in the best interests of the proposed Class and the Class Members. Signatory Plaintiffs recognize that the amount of the funding for the Settlement may not be sufficient to provide recovery in the full amount contemplated for successful Claimants by Section 14012, and that the amount actually recovered by each successful Claimant will depend on the amount of funding appropriated and the number of successful Class Members.
N. The Secretary expressly denies any wrongdoing, as alleged in the Consolidated Case or otherwise, and does not admit or concede any actual or potential fault, wrongdoing or liability in connection with any facts or claims that have been or could have been alleged in the Consolidated Case. Nonetheless, the Secretary considers it desirable to settle the Consolidated Case on the terms set forth in this Agreement because it will avoid disruption to USDA due to the pendency and defense of the Consolidated Case, and it will avoid the substantial expense, burdens, and uncertainties associated with litigation of the Consolidated Case.
O. Accordingly, the purpose of this Agreement is to make a full, complete, and final resolution of all claims and causes of action that have been or could have been asserted against the Secretary by the proposed Class and the Class Members in the Consolidated Case arising out of the conduct alleged therein.
P. NOW, THEREFORE, in reliance on the mutual promises, covenants, releases, and obligations as set out in this Agreement, and for good and valuable consideration, the Parties hereby stipulate and agree to resolve all claims that were or could have been at issue in this matter.
II. DEFINITIONS
Unless otherwise noted, as used in this Agreement:
A. “2008 Funds” are the funds ($100,000,000) designated by Congress in Public Law No. 110-234 and/or 110-246, § 14012(i)(1) (2008).
B. “2010 Funds” are the funds ($1,150,000,000) designated by Congress in Public Law No. 111-291, § 201 (2010).
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C. A “Claimant” is any individual who submits a claim and/or seeks an award under this Agreement.
D. The “Claim Deadline” is 180 calendar days from the Final Approval Date.
E. A “Claim Determination” is the binding and final result of Track A and Track B and represents whether, and what amount, a Class Member is eligible to receive as a result of the Non-Judicial Claims Process.
F. The “Claims Administrator” is an administrator approved by the Court and hired by Lead Class Counsel to determine whether individual claimants are members of the Class, to make payments to meritorious Class Members and counsel in accordance with this Agreement, and to conduct other duties as assigned to the Claims Administrator under this Agreement.
G. “Common Benefit Fees” are reasonable attorneys’ fees, expenses, and costs for the work Class Counsel perform on behalf of the Class as a whole both before and after execution of this Agreement, including negotiation of this Agreement, and the work Class Counsel agrees to perform on behalf of the Class as a whole as set forth in this Agreement. Common Benefit Fees do not include Track A Individual Counsel Fees, Track B Fees, or fees for work performed on behalf of individual Class Members who prevail under Track B.
H. “Consolidated Case” refers to the complaints consolidated in In re Black Farmers Discrimination Litigation, No. 08-mc-511 (D.D.C.).
I. The “Cost Cap” is $35,000,000, and represents the maximum amount of Implementation Costs that Class Counsel may pay out of the funds provided by the Secretary under this Agreement; provided, however, that upon application of Class Counsel, the Court may approve the payment of up to $3,500,000 out of the 2008 Funds in reasonable additional fees and costs above the Cost Cap incurred by the Track A Neutrals, the Track B Neutrals, and/or the Claims Administrator arising out of the reporting requirements and/or the audit provisions of Section 201(h) of Pub. L. No. 111-291.
J. “Designated Account” means a bank account, set up by Class Counsel and held for the benefit of the Class, at a Designated Bank that is (1) insured by the Federal Deposit Insurance Corporation up to the applicable limits, (2) a segregated trust account that is not subject to claims of a bank’s creditors, or (3) invested in U.S. Treasury securities.
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K. “Designated Bank” means a bank that has a Veribanc (www.veribanc.com) rating of Green with three stars and one for which neither the bank nor any of its senior officers appear in the Excluded Parties List System (www.epls.gov), which is a list of entities and individuals suspended or debarred from doing business with the federal government.
L. “Effective Date” is the date upon which, if the Agreement is not voided under Section XI, an order providing final approval of this Agreement under Federal Rule of Civil Procedure 23(e) becomes non-appealable, or, in the event of any appeals, upon the date of final resolution of said appeals. When this Agreement refers to the date on which the Agreement became “Effective,” such date is the Effective Date.
M. “Execution Date” is March 23, 2011.
N. “Fee Award” is the total amount approved by the Court for the payment of Common Benefit Fees and Track B Fees.
O. “Fee Base” is the sum of the 2008 Funds plus any 2010 Funds minus $22,500,000.
P. “FSA” is the Farm Service Agency, an agency of USDA.
Q. “Final Approval Date” is the date on which the Court enters an order providing final approval of this Agreement under Federal Rule of Civil Procedure 23(e).
R. “Implementation Costs” are the Court-approved administrative costs associated with implementing this Agreement, including the fees and costs of the Track A and Track B Neutrals, the Claims Administrator, costs incurred under Section VIII.A.3, and the costs necessary to provide notice of this Agreement to the Class. With the exception of the costs incurred under Section VIII.A.3, Implementation Costs do not include (1) attorneys’ fees, costs, and expenses, (2) the costs and expenses associated with preparing and/or submitting claims on behalf of individual Claimants, (3) the fees, expenses, and costs of the Ombudsman (“Ombudsman Costs”), and (4) costs and expenses incurred by Class Counsel in the performance of their duties under this Agreement.
S. “Individual Counsel” are counsel, other than Class Counsel, retained by Claimants to represent them in the Non-Judicial Claims Process.
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T. “Late-Filing Request” is a written request to the Court, the Pigford Facilitator, the Pigford Monitor, the Pigford Adjudicator, or the Pigford Arbitrator seeking to participate in the claims resolution processes in the Pigford Consent Decree.
U. “Multiple Claimants” are partners, shareholders, or family members operating a single farming operation.
V. “Ombudsman Costs” are fees, costs, and expenses paid to the Ombudsman out of the 2008 Funds, subject to approval by the Court, for performance of his or her duties under this Agreement.
W. “Parties” means the Signatory Plaintiffs and the Secretary.
X. “Pigford” means Pigford v. Glickman, Nos. 97-1978, 98-1693 (D.D.C.).
Y. “Pigford Consent Decree” is the April 14, 1999 Consent Decree entered in Pigford.
Z. “Pigford Opt-Out List” is a list maintained or prepared by the Pigford Facilitator that identifies those individuals who the Pigford Facilitator has determined opted out of the Pigford Consent Decree pursuant to Section 2(b) of the Decree.
AA. “Pigford Participants List” is a list maintained or prepared by the Pigford Facilitator that identifies those individuals who the Pigford Facilitator has determined (1) submitted a claim under the Pigford Consent Decree on or before October 12, 1999, or (2) submitted a Late-Filing Request under 5(g) of the Pigford Consent Decree after October 12, 1999, which was determined by the Pigford Arbitrator to satisfy the “extraordinary circumstances” requirement.
BB. “Pigford Timely 5(g) List” is a list maintained or prepared by the Pigford Facilitator that identifies those individuals who the Pigford Facilitator has determined submitted Late-Filing Requests under Section 5(g) of the Pigford Consent Decree after October 12, 1999, and on or before September 15, 2000.
CC. “Preliminary Approval Date” is the date on which the Court enters a Preliminary Approval Order.
DD. “Preliminary Final Accounting Date” is the date that the Secretary receives the Preliminary Final Accounting provided for in Section V.E.7.
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EE. The “Secretary” is, individually and collectively, Thomas Vilsack, in his official capacity as Secretary of USDA, his successors as Secretary of USDA, USDA, its agencies, instrumentalities, agents, officers, and employees.
FF. The “Secretary’s Counsel” is the U.S. Department of Justice.
GG. “Section [or §] 14012” means Public Law No. 110-234 and/or 110-246, § 14012 (2008).
HH. “Signatory Plaintiffs” are the individuals who have filed claims in any of the complaints consolidated into the Consolidated Case as of February 18, 2010 with the exception of the complaints captioned Beckley v. Vilsack, No. 09-1019 (D.D.C.); Edwards v. Vilsack, No. 10-465 (D.D.C.); Latham v. Vilsack, No. 10737 (D.D.C.); Andrews v. Vilsack, No. 10-801 (D.D.C.); and Johnson v. Vilsack, No. 10-839 (D.D.C.).
II. “Track A Individual Counsel Fee” is a fee negotiated between a Claimant and his or her Individual Counsel, subject to a cap set by the Court, which the Claimant agrees to pay to Individual Counsel if he or she obtains a Track A Award and which Individual Counsel agrees to accept in full satisfaction for the fees, expenses, or costs associated with work performed on behalf of the Claimant in obtaining that Award.
JJ. “Track A Neutral” is an adjudicator hired by Lead Class Counsel and approved by the Court, the Secretary, and the Attorney General to determine the merits of the claims submitted under Track A and conduct other duties as assigned under this Agreement. Prior to determining any claims, each Track A Neutral must take an oath administered by the Court that he or she will determine each claim faithfully, fairly, and to the best of his or her ability.
KK. “Track A Award” is a combination of a Track A Liquidated Award, a Track A Tax Award, and a Track A Loan Award, if applicable. A “Provisional” Track A Award refers to the amount specified in Part V of a Track A Determination Form. A “Final” Track A Award refers to the amount specified in Part III of a Track A Determination Form. Track A Awards are subject to reduction based on the amount of available funds and the number of meritorious claims.
LL. “Track A Liquidated Award” is $50,000 per Class Member for credit claims, regardless of the number of the Class Member’s prevailing claims, and $3,000 per Class Member for non-credit claims, regardless of the number of the Class Member’s prevailing claims. A “Provisional” Track A Liquidated Award refers to the amount specified in Part V of a Track A Determination Form. A “Final” Track A Liquidated Award refers to the amount specified in Part III of a Track A 7

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Determination Form. Track A Liquidated Awards are subject to reduction based on the amount of available funds and number of meritorious claims.
MM. “Track A Loan Award” is the amount of a Class Member’s outstanding debt as of the date certain specified in Section V.B.6 incurred under the following FSA Farm Loan Program loans:
1. Those that form the basis of a Class Member’s prevailing credit claim (“Prevailing Loan”);
2. Those that: (a) were part of the same loan program as the Prevailing Loan; (b) originated at the same time or subsequent to the Prevailing Loan but prior to January 1, 1997; and (c) are not the subject of an adverse administrative decision that has become final or an adverse federal or state court judgment that has become final (collectively “Related Loan”); and
3. Those that have been consolidated with or restructured into a new loan that includes either a Prevailing Loan or a Related Loan.
A “Provisional” Track A Loan Award refers to the amount specified in Part V of a Track A Determination Form. A “Final” Track A Loan Award refers to the amount specified in Part III of a Track A Determination Form. Track A Loan Awards are subject to reduction based on the amount of available funds and number of meritorious claims.
NN. “Track A Tax Award” is an award made in recognition of a Class Member’s expected tax liability in an amount equal to 25% of the Class Member’s Track A Liquidated Award and 25% of the principal amount of the Class Member’s Track A Loan Award, if applicable. A “Provisional” Track A Tax Award refers to the amount specified in Part V of a Track A Determination Form. A “Final” Track A Tax Award refers to the amount specified in Part III of a Track A Determination Form. Track A Tax Awards are subject to reduction based on the amount of available funds and number of meritorious claims.
OO. “Track B Award” is the amount of actual damages, up to $250,000, for which the Track B Neutral determines that a Class Member is eligible under the applicable standards for Track B. A “Provisional” Track B Award refers to the amount specified in Part V of a Track B Determination Form. A “Final” Track B Award refers to the amount specified in Part III of a Track B Determination Form. Track B Awards are subject to reductions based on the amount of available funds and number of meritorious claims.
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PP. “Track B Cap” is $100,000,000.
QQ. “Track B Fee” is a fee negotiated between a Claimant and his or her Counsel, whether Class Counsel or Individual Counsel, subject to a cap set by the Court, which the Claimant agrees to pay if he or she obtains a Track B Award and which Counsel agrees to accept in full satisfaction for the fees, expenses, or costs associated with work performed on behalf of the individual Claimant in obtaining that Award.
RR. “Track B Neutral” is an adjudicator hired by Lead Class Counsel and approved by the Court, the Secretary, and the Attorney General to determine the merits of the claims submitted under Track B. Prior to determining any claims, each Track B Neutral must take an oath administered by the Court that he or she will determine each claim faithfully, fairly, and to the best of his or her ability.
SS. The “United States” is, individually and collectively, the Executive Branch of the United States, its agencies, instrumentalities, agents, officers, and employees.
III. THE SETTLEMENT CLASS
A. The Parties agree, for purposes of this Agreement only, to the following Federal Rule of Civil Procedure 23(b)(1), non-opt-out class:
All individuals: (1) who submitted Late-Filing Requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree.
Where used in this Agreement, the “Class” refers, individually and collectively, to the Class Representatives, the Class, and each Member of the Class as well as their heirs, administrators, personal representatives, successors, and/or assigns.
B. In accordance with the terms of this Agreement, the Signatory Plaintiffs will move for certification of this Settlement Class, for appointment of some of the Signatory Plaintiffs as the Class Representatives, for appointment of Class Counsel, and for designation of specific counsel from among Class Counsel to serve as Lead Class Counsel and members of the Plaintiffs’ Steering Committee.
IV. DISMISSAL AND FUNDING
A. The Class agrees to the dismissal of all actions pending in the Consolidated Case with prejudice under Federal Rules of Civil Procedure 41(a)(1) and 23(e). In 9

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accordance with the terms of this Agreement, the Signatory Plaintiffs will move for dismissal, with prejudice, of all actions pending in the Consolidated Case, to be effective on the Final Approval Date. Notwithstanding such dismissal, the Court shall retain continuing jurisdiction to oversee and enforce this Agreement.
B. Class Counsel shall, within seven (7) calendar days of the Preliminary Approval Date, notify the Secretary and the Court in writing of the identities of the Designated Account and Designated Bank.
C. Within thirty (30) calendar days of the Preliminary Approval Date, Class Counsel shall seek approval from the Court for a disbursal of up to $5,000,000 from the Designated Account for payment of Court-approved interim Implementation Costs provided for in this Agreement. Upon Court approval of this request and in accordance with the Court’s Order, the Secretary shall, within twenty (20) days of such approval, provide the U.S. Department of the Treasury with all necessary forms and documentation to direct a payment for the benefit of the Class in accordance with and subject to the following conditions:
1. The Secretary shall make this payment from the 2008 Funds;
2. The payment shall be in an amount ordered by the Court, not to exceed $5,000,000;
3. The Secretary shall direct the deposit of these funds into the Designated Account. Class Counsel shall provide the Secretary in writing with the information necessary to direct the deposit;
4. Class Counsel shall use these funds solely for Court-approved interim Implementation Costs provided for in this Agreement; and
5. Class Counsel shall provide the Secretary and the Court with quarterly written reports related to the expenditure of the funds provided in this Subsection. The quarterly reports, which may be submitted on the Quarterly Disbursement Reporting Form (Ex. E), shall identify (a) to whom Class Counsel has paid the funds, (b) the amount of such payment, (c) when the funds were paid, and (d) for what purpose the payment has been made, with reference to this Agreement.
D. If, prior to the Final Approval Date, Class Counsel determines that the amount provided in IV.C is insufficient to cover the Court-approved interim Implementation Costs, Class Counsel may submit additional written requests to the Court for up to $5,000,000 to be used for interim Implementation Costs,
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except that Class Counsel may not request more than $10,000,000 in aggregate Implementation Costs prior to the Final Approval Date. Upon Court approval of any such request and in accordance with any related Court Order, the Secretary shall, within twenty (20) days of such approval, provide the U.S. Treasury with all necessary forms and documentation to direct a payment for the benefit of the Class in accordance with and subject to the conditions in Section IV.C.
E. After the Final Approval Date, Class Counsel may submit additional written requests to the Court for additional Court-approved interim Implementation Costs and for Court-approved interim Common Benefit Fees, subject to the following conditions:
1. Class Counsel shall not make more than four requests per calendar year, shall not seek more than $5,000,000 per request, and must submit, with each request, evidence that the Designated Account has been or will be depleted; and
2. Class Counsel shall make no request that would cause the sum of interim Implementation Costs and interim Common Benefit Fees paid by the Secretary under this Agreement to exceed $20,000,000.
F. Upon Court approval of any request in Section IV.E and in accordance with any related Court Order, the Secretary shall, within twenty (20) days of such approval, provide the U.S. Department of the Treasury with all necessary forms and documentation to direct the payment of the requested funds, for the benefit of the Class, in accordance with and subject to the following conditions:
1. The Secretary shall make these payments from the 2008 Funds;
2. The total of all interim Implementation Costs and interim Common Benefit Fees under Sections IV.C, IV.D, and IV.F shall not exceed $20,000,000;
3. The Secretary shall direct the deposit of these funds into the Designated Account. Class Counsel shall provide the Secretary in writing with the information necessary to direct the deposit;
4. These funds shall be used solely for Court-approved interim Implementation Costs and Court-approved interim Common Benefit Fees provided for in this Agreement. Any Court-approved Common Benefit Fees may be paid only to those counsel who have incurred fees to date for
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work performed on behalf of the Class as a whole, including negotiation of this Agreement; and
5. Class Counsel shall provide the Secretary and the Court with quarterly written reports related to the expenditure of the funds provided in this Subsection. The quarterly reports, which may be submitted on the Quarterly Disbursement Reporting Form (Ex. E), shall identify (a) to whom Class Counsel has paid the funds, (b) the amount of such payment, (c) when the funds were paid, and (d) for what purpose the payment has been made, with reference to this Agreement. For the expenditure of interim Common Benefit Fees, the report must also identify the specific work performed to merit the payment of interim fees.
G. At any point after Preliminary Approval of the Settlement Agreement, the Court may order payment of Ombudsman Costs, as defined in Section VI.A of this Agreement. Within twenty (20) days of any such Court Order, the Secretary shall provide the U.S. Department of the Treasury with all necessary forms and documentation to direct a payment to the Designated Account for the fees and expenses of the Ombudsman, subject to the following conditions:
1. Any payment to the Ombudsman made before the Preliminary Final Accounting Date shall be paid from the 2008 Funds;
2. Any payment to the Ombudsman shall be for fees and expenses incurred or expected to be incurred in the performance of the Ombudsman’s duties under Section VI of this Agreement;
3. The Ombudsman shall provide Class Counsel, the Secretary, and the Court with quarterly written reports identifying his or her fees and expenses, as related to the expenditure of the funds provided in this Subsection.
H. Within thirty (30) days of the Preliminary Final Accounting Date or the Effective Date, whichever is later, Class Counsel shall seek approval from the Court for a payment for the benefit of the Class equal to the lesser of (1) the 2010 Funds plus any remaining 2008 Funds, or (2) the sum, as set forth in the Preliminary Final Accounting in Section V.E.7, of (a) all Final Track A Liquidated Awards, Final Track A Loan Awards, and Final Track A Tax Awards, (b) all Final Track B Awards, (c) the incurred and estimated final Implementation Costs up to the Cost Cap as approved by the Court, (d) the incurred and estimated final Ombudsman Costs approved by the Court, and (e) the Fee Award approved by the Court minus the sum of Track B Fees incurred by Track B Class Members, minus any amounts the Secretary has already paid under Sections IV.C, IV.D, IV.F, and IV.G. Within twenty (20) days of Court approval of this request and in accordance with 12

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the Court’s Order, the Secretary shall provide the U.S. Department of the Treasury with all necessary forms and documentation to direct a payment in the amount the Court approves in accordance with and subject to the following conditions:
1. The Secretary shall direct the deposit of these funds into the Designated Account. Class Counsel shall provide the Secretary in writing with the information necessary to direct the deposit;
2. These funds shall be used solely to pay (a) Final Track A Liquidated Awards, Final Track A Loan Awards, Final Track A Tax Awards, and Final Track B Awards to or on behalf of Class Members pursuant to the Non-Judicial Claims Process (Section V); (b) Common Benefit Fees approved by the Court; (c) Track B Fees; (d) reasonable and compensable Court-approved Implementation Costs; (e) reasonable and compensable Court-approved Ombudsman Costs; and (f) if applicable, any leftover funds to Cy Pres Beneficiaries, as specified in Section V.E.13 and approved by the Court; and
3. Class Counsel shall provide the Secretary and the Court with written quarterly reports related to the expenditure of the funds provided in this Subsection. The quarterly reports, which may be submitted on the Quarterly Disbursement Reporting Form (Ex. E), shall identify (a) to whom Class Counsel has paid the funds, (b) the amount of such payment, (c) when the funds were paid, and (d) for what purpose the payment has been made, with reference to this Agreement. If Class Counsel has expended funds to pay Final Track A Liquidated Awards, Final Track A Loan Awards, Final Track A Tax Awards, and Final Track B Awards during the reporting period, Class Counsel shall also identify the number of such awards.
I. Any funds other than 2008 Funds or 2010 Funds are outside the scope of this Agreement and the scope of the payment obligations of the Secretary and/or the United States under this Agreement and shall not be paid by the Secretary and/or the United States to the Class or Class Counsel under this Agreement.
J. Once the funds paid by the Secretary under this Agreement are deposited into the Designated Account, the Secretary has no liability whatsoever for the protection or safeguard of the deposited funds, regardless of bank failure, fraudulent transfers, or any other fraud or misuse of the funds.
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K. Nothing in this Agreement shall limit in any way the duties owed by Class Counsel to the Class under any applicable law, including any law governing counsel’s management or handling of client funds.
L. The funds that the Secretary pays pursuant to this Agreement are inclusive of damages and other monetary relief, attorneys’ fees, expenses, costs, tax payments, payments in recognition of outstanding FSA Farm Loan Program debt, interest, and costs, and are the only funds that will be paid by the Secretary under this Agreement.
M. Other than the funds specified in this Agreement, no other funds, including those from the Judgment Fund, 31 U.S.C. § 1304, the Commodity Credit Corporation, or from the Salaries and Expenses Account of USDA or any of its agencies shall be available for any purpose related to this Agreement, except by the Secretary for purposes of satisfying his duties under this Agreement.
N. The binding effect and implementation of this Agreement is not contingent in any way upon the provision by Congress of any funds. The Class Representatives and the Class acknowledge that Congress is not obligated to appropriate any additional funds.
O. The limitations on funding in this Agreement apply notwithstanding a determination by the Class Representatives, the Class, or Class Counsel that the funds made available under this Agreement are inadequate to pay claims submitted pursuant to the Non-Judicial Claims Process (Section V), attorneys’ fees, expenses, and costs incurred under this Agreement, and/or Implementation Costs incurred under this Agreement.
P. The Secretary and/or the United States shall not be liable to pay the Claims Administrator, the Pigford Facilitator, the Track A Neutral, the Track B Neutral, the Ombudsman, or any of their employees and agents. Subject to the Cost Cap, all fees, costs, and expenses incurred by the Claims Administrator, the Neutrals and their employees and agents shall be paid from the Designated Account as Implementation Costs. All fees, costs, and expenses incurred by the Ombudsman shall be paid from the Designated Account as Ombudsman Costs.
Q. The Class Representatives, the Class, and/or Class Counsel may not terminate this Agreement because the Class Representatives, the Class, and/or Class Counsel assert that the Cost Cap is inadequate, and neither the Class Representatives nor Class Counsel shall be permitted to amend, alter, or reduce their obligations and duties under this Agreement in any manner. The Class Representatives and Class Counsel agree to continue with implementation of this Agreement notwithstanding the amount of Implementation Costs incurred under this 14

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Agreement. The Secretary shall have no responsibility for Implementation Costs above the Cost Cap.
R. Nothing in this Agreement shall preclude the Class, the Secretary and/or the United States from seeking additional funds from Congress for purposes of this Agreement. The Secretary and/or the United States, however, are not obligated to seek any additional funds, support any legislation, or refrain from opposing any additional funds or legislation. The binding effect and implementation of this Agreement are not contingent in any way upon the interactions between the Secretary and/or the United States and Congress.
S. The Class Members will have sole responsibility to comply with their own applicable federal, state, and local tax requirements that arise as a result of this Agreement. Class Counsel will have sole responsibility to comply with their own applicable federal, state, and local tax requirements that arise as a result of this Agreement.
V. NON-JUDICIAL CLAIMS PROCESS
To obtain relief under this Settlement, Claimants must be Class Members and have their claims determined to be meritorious under one of two tracks – (1) Track A, which tests claims against a lower “substantial evidence” standard of proof, and awards successful claimants with a liquidated payment of up to $50,000 for credit claims and/or up to $3,000 for non-credit claims, a payment in recognition of outstanding debt owed to USDA/FSA, and a payment to offset tax liability from these awards; or (2) Track B, which tests claims against a higher “preponderance of the evidence” standard of proof, and provides awards to successful Claimants in the amount of their actual damages up to $250,000, subject to the Track B Cap.
Each of these awards is subject to reduction based on the amount of available funds and the number of meritorious claims.
A. GENERAL REQUIREMENTS
1. To obtain a Claim Determination under this Agreement, a Claimant must be a Class Member and must submit a Complete Claim Package to the Claims Administrator by the Claim Deadline (180 days from the Final Approval Date). A “Complete Claim Package” must include:
a. A completed Claim Form (Ex. C), including the Claimant’s declaration, under penalty of perjury, that each of the statements provided by the Claimant is true and correct;
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b. For a Track A Claimant who seeks a Track A Loan Award, a statement that the Claimant seeks such an award and an executed Authorization to Disclose Debt Information Form (Ex. D);
c. A declaration by the Claimant’s Counsel, whether Class Counsel or Individual Counsel, made under penalty of perjury, that to the best of the attorney’s knowledge, information, and belief formed after an inquiry reasonable under the circumstances, the claim is supported by existing law and the factual contentions have evidentiary support. For Claimants proceeding without counsel, the declaration on the Claim Form (Ex. C) is sufficient to satisfy this requirement;
d. For a Claimant who is deceased, (a) a death certificate and (b) either (i) proof of legal representation, or (ii) a sworn statement describing why the submitting individual believes he or she will be appointed the legal representative of the Claimant’s estate; and
e. For a Claimant unable to submit a claim on his or her own behalf due to a physical or mental limitation, (a) proof of legal representation or (b) a sworn statement describing why the Claimant is unable to submit a claim on his or her own behalf and why the submitting individual asserts a right to do so on the Claimant’s behalf.
The submission date of the Claim Package shall be the date of postmark if the Claim Package is sent via first-class mail, the date of deposit if sent by courier or overnight delivery, and the date of transmission if sent electronically.
2. A Claimant may be represented in this Claims Process by Class Counsel or Individual Counsel, or the Claimant may submit a claim without counsel. A Track A Claimant shall be represented at no additional charge by Class Counsel, unless that Claimant elects to be represented by Individual Counsel or elects to submit a claim without counsel. For Track A, if a Claimant elects to be represented by Individual Counsel, the Claimant must make separate arrangements to pay Individual Counsel, subject to the terms of this Agreement and the cap on Track A Individual Counsel Fees set by the Court. For Track B, if a Claimant elects to be represented by either Class Counsel or Individual Counsel, the Claimant must make separate arrangements to pay Class Counsel or Individual Counsel, subject to the terms of this Agreement and the cap on Track B Fees set by the Court. An attorney who serves as Individual Counsel 16

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consents to the terms of this Agreement and agrees to abide by all orders of the Court in the Consolidated Case.
3. In the case of a Claimant who is deceased, the legal representative of the Claimant’s estate may submit a claim on the Claimant’s behalf. If there is no legal representative, any other individual who asserts a right to be the legal representative of the Claimant’s estate may submit a claim on the Claimant’s behalf. If there is no legal representative and more than one individual submits a claim on behalf of the Claimant, a Track A Neutral or Track B Neutral designated by the Claims Administrator shall decide which of the individuals is entitled to pursue the claim on the Claimant’s behalf. If the Claimant prevails, and a legal representative for the Claimant’s estate has not yet been appointed, the Claimant’s award shall be held for up to one year in a separate account established by Class Counsel for the benefit of the estate until a legal representative to whom the funds may be disbursed is appointed. The Claims Administrator may extend this period upon receipt of proof that a probate petition is pending in the appropriate Court.
4. In the case of a Claimant who is unable to submit a claim on his or her own behalf due to a physical or mental limitation, the Claimant’s legal representative may submit a claim on the Claimant’s behalf. If there is no legal representative, any other individual who asserts a right to be the legal representative may submit a claim on the Claimant’s behalf. If there is no legal representative and more than one individual submits a claim on behalf of an individual who is unable to submit a claim on his or her own behalf, a Track A Neutral or Track B Neutral designated by the Claims Administrator shall decide which of the individuals is entitled to pursue the claim on the Claimant’s behalf. If the Claimant prevails, and a legal representative for the Claimant has not yet been appointed, the Claimant’s award shall be held for up to one year in a separate account established by Class Counsel for the benefit of the Claimant until a legal representative for the Claimant to whom the funds may be disbursed is appointed. The Claims Administrator may extend this period upon receipt of proof that a petition for appointment of a legal representative for the Claimant is pending in the appropriate Court.
5. Multiple Claimants operating a single farming operation are limited to one claim per farming operation. If Multiple Claimants file more than one claim, the Track A or Track B Neutral, as appropriate, will determine which claimant is entitled to proceed. Only one Track A Liquidated Award, Track A Tax Award, and if applicable, Track A Loan Award or Track B Award will be paid per farming operation.
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6. A Claimant’s election of Track A is irrevocable and exclusive. A Claimant’s election of Track B is irrevocable and exclusive, except as provided in Section V.B.7.
7. Claimants whose claims arise under non-credit benefit programs are required to proceed under Track A.
8. The Class Membership Determinations, Claim Determinations, and any other determinations made under this Section are final and are not reviewable by the Claims Administrator, the Track A Neutral, the Track B Neutral, the Court, or any other party or body, judicial or otherwise. The Class Representatives and the Class agree to forever and finally waive any right to seek review of the Class Membership Determinations, the Claim Determinations, and any other determinations made under this Section.
9. Except as specified in Section V.B.6, the Secretary and/or the United States shall have no role in the non-judicial claims process provided in this Section.
10. The Secretary and/or the United States shall not be liable to pay any Claim Determinations, any Track A Liquidated Awards, Track A Loan Awards, Track A Tax Awards, Track B Awards, or discharge or otherwise satisfy any debt except as provided in Section V.A.12. All Track A Liquidated Awards, Track A Loan Awards, Track A Tax Awards, and Track B Awards shall be paid from the Designated Account.
11. The Secretary and/or the United States shall have no obligation to provide any information, documents, or discovery to the Class, Class Members, or Class Counsel, except as provided in Section V.B.6.
12. The Claims Administrator will make Track A Loan Awards and Track A Tax Awards directly to FSA (for Track A Loan Awards) and the Internal Revenue Service (for Track A Tax Awards) on each prevailing Class Member’s behalf and not to the prevailing Class Member. If a Track A Loan Award provided by the Claims Administrator to FSA to reduce or discharge outstanding Farm Loan Program loans held by a prevailing Class Member does not discharge or otherwise satisfy the Class Member’s debt in full, interest will continue to accrue unless and until the Class Member repays the loan in full. Subject to the limitations in Section VII, FSA will maintain all available options for servicing and recovering all Farm Loan Program debt from the Class Member, including, but not limited to, acceleration and foreclosure in accordance with the governing regulations. 18

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13. The Claims Administrator shall send all correspondence and all payments to Claimants, Class Members, and/or their Counsel by first-class mail, postage prepaid.
14. Class Counsel, the Claims Administrator, the Ombudsman, and the Neutrals shall take reasonable steps to protect private personal and financial information submitted to them under this Agreement.
15. The Claims Administrator and the Track A and B Neutrals shall report periodically to Lead Class Counsel and the Ombudsman any issues of concern that arise in the course of the execution of their duties.
B. REVIEW OF THE CLAIM SUBMISSION AND THE CLASS MEMBERSHIP DETERMINATION
1. Upon receipt of a claim, the Claims Administrator shall first assign the claim a unique Claim Identification Number and then determine whether the Claimant’s submission satisfies the Claim Deadline and whether the submission is a Complete Claim Package. The Claims Administrator shall make every reasonable effort to complete this determination within ten (10) days of receipt of the claim.
2. For each Claimant who has submitted an incomplete Claim Package or for each Claim Package that the Claims Administrator is unable to determine whether it is complete or timely, the Claims Administrator shall send to the Claimant and his or her Counsel a completed Your Claim Package is Not Complete Form (Ex. F). A Claimant shall have thirty (30) calendar days from the date of postmark of such a Form to submit, either by firstclass mail, postage prepaid, or electronically, a Complete Claim Package. There shall be no exceptions to or extensions of the time frames set forth in this paragraph, and the failure of a Claimant to provide any requested materials within the specified time frames will result in that Claimant obtaining a final and unreviewable adverse determination.
3. For each Claimant whose claim is untimely submitted, the Claims Administrator shall return the Claim Package to the Claimant and his or her Counsel with a completed You Have Not Submitted Your Claim On Time Form (Ex. G). This determination is final and not reviewable by the Claims Administrator, the Track A Neutral, the Track B Neutral, the Court, or any other party or body, judicial or otherwise.
4. For each Claimant determined by the Claims Administrator to have submitted a timely and Complete Claim Package, the Claims 19

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Administrator shall determine whether the Claimant is a Class Member. To make this determination, the Claims Administrator shall determine whether the Class Member has established, by a preponderance of the evidence, that:
a. The Claimant submitted a Late-Filing Request under Section 5(g) of the Pigford Consent Decree on or after October 13, 1999, and on or before June 18, 2008. For purposes of this determination, the Claims Administrator shall review the Pigford Timely 5(g) List. If a Claimant appears on the Pigford Timely 5(g) List, the Claimant will be deemed to have submitted a Late-Filing Request. If the Claimant is not on the Pigford Timely 5(g) List, the Claimant must establish with independent documentary evidence that he or she submitted a Late-Filing Request. A tracking number given to a Claimant in Pigford or a list maintained by the Pigford Facilitator other than the Timely 5(g) List are insufficient, on their own, to constitute independent documentary evidence for this purpose. The Claims Administrator shall make this determination by examining the documents, if any, provided by Class Counsel and the documents submitted by the Claimant as part of his or her claim; and
b. The Claimant has not obtained a determination on the merits of his or her discrimination complaint, as defined by Section 1(h) of the Pigford Consent Decree. For purposes of this determination, the Claims Administrator shall review the Pigford Participants List and the Pigford Opt-Out List. If a Claimant (a) appears on either of these Lists, or (b) has obtained a judgment from a judicial or administrative forum on the basis of the race discrimination claim that provides the basis of the Claimant’s discrimination complaint, that Claimant will be deemed to have obtained a determination on the merits of his or her discrimination claim. If the Claims Administrator determines, at any time prior to paying a Claimant under this Agreement, that the Claimant already has obtained a determination on the merits of his or her discrimination complaint, the Claims Administrator shall not make any payments to the Claimant.
5. For each Claimant who the Claims Administrator determines is not a Class Member, the Claims Administrator shall complete a You Are Not a Class Member Form (Ex. H) and send the Form to the Claimant and his or her counsel. This determination is final and not reviewable by the Claims
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Administrator, the Track A Neutral, the Track B Neutral, the Court, or any other party or body, judicial or otherwise.
6. For each Claimant who the Claims Administrator determines to be a Class Member and who elects Track A, the Claims Administrator shall complete Parts I and VI of a Track A Claim Determination Form (Ex. A) and send the Form and the Class Member’s claim electronically to the Track A Neutral. If the Class Member seeks a Track A Loan Award and has submitted an Authorization to Disclose Debt Information Form (Ex. D), the Claims Administrator shall request that FSA confirm whether the Class Member has an outstanding Farm Loan Program loan(s) and provide the applicable loan(s) balance(s) and loan payoff amount(s). In order to make this request, the Claims Administrator must complete the Authorization to Disclose Debt Information Form received from the Class Member and send it, along with the Class Member’s completed Claim Form, to FSA. Within sixty (60) calendar days of receipt of the request or as soon thereafter as is practicable, FSA will return the Authorization to Disclose Debt Information Form to the Claims Administrator with the requested information. The payoff amount will be as of a date certain with a daily interest accrual note. Interest will continue to accrue until the account is paid in full. The Claims Administrator shall submit the completed Authorization to Disclose Debt Information Form to the Track A Neutral reviewing the Class Member’s Claim, the Class Member, and the Class Member’s Counsel.
7. Within ten (10) days after the Claim Deadline, for each Claimant who the Claims Administrator determines to be a Class Member and who elects Track B, the Claims Administrator shall send the Class Member a notice in writing informing the Class Member of the total number of Class Members who submitted Complete Claims Packages under Track B by the Claim Deadline. Such notification shall also remind each Class Member of: (a) the definition of Track B Awards; (b) the Track B Cap; and (c) the possibility that a Class Member’s Track B Award will be reduced if the total of all Track B Awards exceeds the Track B Cap. Such notification shall inform the Class Member that the Class Member may change his or her election to Track A by so notifying the Claims Administrator in writing within thirty (30) days of the postmark of the notification. If a Track B Class Member does not so notify the Claims Administrator, his or her claim shall be treated as a Track B claim.
8. For each Claimant who the Claims Administrator determines to be a Class Member and who elects Track B under Section V.B.7, the Claims Administrator shall complete Parts I and VI of a Track B Claim
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Determination Form (Ex. B) and send the Form and the Class Member’s claim electronically to the Track B Neutral.
9. For each Claimant who the Claims Administrator determines to be a Class Member and who elects Track A under Section V.B.7, the Claims Administrator shall follow the procedure in Section V.B.6.
10. The Claims Administrator shall make every reasonable effort to complete the Class Membership Determination and complete his or her other duties under this Section within sixty (60) days of receipt of a Complete Claim Package.
C. TRACK A
1. For each Class Member asserting a claim under Track A, the Track A Neutral shall determine whether the Class Member has established, by substantial evidence, each of the following elements:
a. The Class Member is an African-American who farmed, or attempted to farm, between January 1, 1981, and December 31, 1996;
b. The Class Member owned or leased, or attempted to own or lease, farm land;
c. The Class Member applied, or constructively applied, for a specific farm credit transaction(s) or non-credit benefit(s) at a USDA office between January 1, 1981, and December 31, 1996;
d. For claimants who applied -- i.e., not constructively applied -- for a specific farm credit transaction(s) or non-credit benefit(s), the farm loan(s) or non-credit benefit(s) for which the Class Member applied was denied, provided late, approved for a lesser amount than requested, encumbered by a restrictive condition(s), or USDA failed to provide an appropriate loan service(s);
e. USDA’s treatment of the loan or non-credit benefit application(s) or constructive application(s) led to economic damage to the Class Member; and
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f. The Class Member complained of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of him or her in response to the application(s).
“Substantial evidence” is such evidence that a reasonable person might accept as adequate to support a conclusion after taking into account other evidence in the record that fairly detracts from that conclusion. Substantial evidence is a lower standard of proof than a preponderance of the evidence.
2. For each Class Member who asserts that he or she “constructively applied” for a loan or non-credit benefit in order to satisfy Section V.C.1.c, the Track A Neutral must make an additional determination that the Class Member has established, by substantial evidence, that:
a. The Class Member made a bona fide effort to apply for a loan or non-credit benefit. Such bona fide effort may be established by evidence of:
(1) the year in which the Class Member attempted to apply and the general time period within that year (e.g., late fall, early spring, sometime in January, February, or March);
(2) the type and amount of loan or non-credit benefit for which the Class Member attempted to apply;
(3) how the Class Member planned to use the funds (i.e., identification of crops, equipment, acreage, etc.); and
(4) how the Class Member’s plans for a farm operation were consistent with farming operations in that county/area in that year; and
b. USDA actively discouraged the application. Active discouragement may be established by evidence of:
(1) statements by a USDA official that, at the time the Class Member wanted to apply, there were no funds available and therefore no application would be provided;
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(2) statements by a USDA official that, at the time the Class Member wanted to apply, there were no application forms available; or
(3) statements by a USDA official that, at the time the Class Member wanted to apply, USDA was not accepting or processing applications.
3. The Track A Neutral’s determination shall be based solely on the materials submitted by the Class Member and, if applicable, the information provided by FSA in response to a completed Authorization to Disclose Debt Information Form.
4. If, in the Track A Neutral’s judgment, additional documentation and evidence would be necessary or helpful in deciding the merits of a particular claim, or if the adjudicator suspects fraud regarding a particular claim, the Track A Neutral may require that the Class Member provide additional documentation and evidence. A Class Member’s inability to provide the requested additional documentation or evidence shall not require a rejection of that Class Member’s claim.
5. If the Track A Neutral determines that the Class Member has satisfied the elements listed above in Sections V.C.1 and V.C.2 for a credit or noncredit claim, the Neutral shall complete Part V on the Class Member’s Track A Claim Determination Form (Ex. A). If the Track A Neutral determines that the Class Member has not satisfied the elements listed above, the Neutral shall complete Part IV of the Track A Claim Determination Form. The Neutral shall make every reasonable effort to complete this determination and send the Track A Claim Determination Form electronically to the Claims Administrator within thirty (30) calendar days of receipt of the claim or within ten (10) calendar days of receipt of the Authorization to Disclose Debt Information Form, whichever is later.
D. TRACK B
1. For each Class Member asserting a credit claim under Track B, the Track B Neutral shall determine whether the Class Member has established, by a preponderance of the evidence and through independent documentary evidence admissible under the Federal Rules of Evidence, each of the following elements:
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a. The Class Member is an African-American who farmed, or attempted to farm, between January 1, 1981, and December 31, 1996;
b. The Class Member owned or leased, or attempted to own or lease, farm land;
c. The Class Member applied for a specific farm credit transaction(s) at a USDA office between January 1, 1981, and December 31, 1996. Constructive application is insufficient;
d. The farm loan(s) for which the Class Member applied was denied, provided late, approved for a lesser amount than requested, encumbered by a restrictive condition(s), or USDA failed to provide an appropriate loan service(s);
e. The treatment of the Class Member’s loan application(s) by USDA was less favorable than that accorded a specifically identified, similarly situated white farmer(s);
f. USDA’s treatment of the loan application(s) led to economic damage to the Class Member; and
g. The Class Member complained of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of him or her in response to the application(s).
A “preponderance of the evidence” is such relevant evidence as is necessary to prove something is more likely true than not true.
2. Notwithstanding the requirement that each element in Track B be established by a preponderance of the evidence and with independent documentary evidence admissible under the Federal Rules of Evidence,
a. Sections V.D.1.e and V.D.1.g may be established by a preponderance of the evidence and with a sworn statement based on personal knowledge by an individual who is not a member of the Class Member’s family;
b. The Class Member’s loan application and supporting documents forming the basis of the Class Member’s claim are deemed admissible under the Federal Rules of Evidence upon a sworn
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statement by the Class Member that the loan application and supporting documents were submitted to FSA contemporaneously to the date of the complete application. FSA documents that were provided to the Class Member in response to the Class Member’s loan application are also deemed admissible under the Federal Rules of Evidence upon a sworn statement by the Class Member that the Class Member received the FSA documents in response to the Class Member’s loan application contemporaneously to the date of the response; and
c. Nothing in this Section precludes a Class Member from submitting expert testimony to explain the independent documentary evidence submitted by the Class Member with respect to Section V.D.1.f.
3. Once the Class Member has submitted independent documentary evidence admissible under the Federal Rules of Evidence or evidence as provided for above in Section V.D.2 on each element, the Track B Neutral may consider the materials submitted by the Class Member and any other information or material deemed appropriate for consideration by the Track B Neutral.
4. If, in the Track B Neutral’s judgment, additional documentation and evidence would be necessary or helpful in deciding the merits of a particular claim, or if the adjudicator suspects fraud regarding a particular claim, the Track B Neutral may require that the Class Member provide additional documentation and evidence. A Class Member’s inability to provide the requested additional documentation or evidence shall not require a rejection of that Class Member’s claim.
5. If the Track B Neutral determines that the Class Member has satisfied the elements listed in Section V.D.1 above, the Neutral shall complete Part V on the Class Member’s Track B Claim Determination Form (Ex. B). If the Track B Neutral determines that the Class Member has not satisfied the elements listed above, the Neutral shall complete Part IV of the Track B Claim Determination Form. The Neutral shall make every reasonable effort to complete this determination and send the Track B Claim Determination Form electronically to the Claims Administrator within sixty (60) calendar days of receipt of the claim.
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E. DISTRIBUTION OF CLAIM DETERMINATIONS AND SETTLEMENT FUNDS
1. Within thirty (30) days of the Claims Administrator’s receipt of a Track A or Track B Claim Determination Form (Exs. A or B) for a denied claim, the Claims Administrator shall complete Parts I, II, and IV of the applicable Claim Determination Form and send the completed Claim Determination Form to the non-prevailing Class Member and his or her counsel, and to Lead Class Counsel.
2. Within thirty (30) days of the Claims Administrator’s receipt of a Track A or Track B Claim Determination Form (Exs. A or B) for a prevailing claim, the Claims Administrator shall send a letter in the form of Exhibit J to the prevailing Class Member and his or her counsel, and to the Lead Class Counsel.
3. On a quarterly basis, the Claims Administrator shall provide to the Secretary and Lead Class Counsel a written report, which may be provided on the USDA Quarterly Payment Reporting Form (Ex. I), that includes: (a) the name, address, and Social Security or Taxpayer Identification Number of each Class Member who has completed the claims process; (b) the Class Member’s FSA Account Number, if applicable, and (c) the status of the Class Member’s claim.
4. Within thirty (30) calendar days of receipt of all Track A and Track B Claim Determination Forms (Exs. A and B), the Claims Administrator shall calculate: (a) the sum of all Provisional Track A Liquidated Awards, Provisional Track A Loan Awards, and Provisional Track A Tax Awards, as shown on Part V of the Track A Claim Determination Forms (Ex. A); (b) the sum of all Provisional Track B Awards, as shown on Part V of the Track B Claim Determination Forms (Ex. B); (c) the sum of all Final Track A Liquidated Awards, Final Track A Loan Awards, Final Track A Tax Awards, and Final Track B Awards, as calculated in Appendix 1; (d) the Implementation Costs incurred to date; (e) a good faith estimate of Implementation Costs necessary for the Claims Administrator to perform its final duties under this Agreement; (f) the Ombudsman Costs incurred to date; (g) a good faith estimate of the Ombudsman Costs necessary for the Ombudsman to perform his or her final duties under this Agreement; (h) the amount of the Fee Award; (i) the sum of Track B Fees incurred by Track B Class Members, as calculated in Appendix 1.
5. CALCULATION OF AWARDS – Final Awards for each Claimant shall be calculated in accordance with the procedure delineated in Appendix 1. 27

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The following is a summary of Appendix 1: To calculate a Claimant’s Final Award, each Claimant’s Provisional Award may be subject to the following reductions:
a. The first reduction involves Track B Awards. If the total amount of Track B Awards exceeds the Track B Cap, all Track B Awards are reduced proportionately until their sum equals the Track B Cap. If the sum of all Track B Awards is under the Track B Cap, no reduction is applied.
b. The next reduction involves Class Members who submitted LateFiling Requests in Pigford after September 15, 2000. If, after making the reduction in subsection (a), the amount of the funds available to pay the prevailing Class Members is insufficient to fully pay Track A Awards and Track B Awards, the awards for those claimants who submitted Late-Filing Requests in Pigford after September 15, 2000 will be reduced by up to 30%. If, after making the reduction in subsection (a), the amount of the funds available to pay the prevailing Class members is sufficient to fully pay Track A Awards and Track B Awards, no reduction is applied.
c. The final reduction involves all Class Members. If, after making the reductions in subsections (a) and (b), the amount of the funds available to pay the prevailing Class Members is still insufficient to fully pay Track A Awards and Track B Awards, all Class Members will have their awards proportionally reduced until the total of all awards equals the amount of funds available.
6. The Claims Administrator shall record the Final Awards and the Final Track B Fees in Parts II and III of the prevailing Class Members’ Track A and Track B Claim Determination Forms (Exs. A and B). The Claims Administrator shall then remove Parts V and VI from the Determination Forms.
7. Within thirty (30) calendar days of receipt of all Track A and Track B Claim Determination Forms (Exs. A and B), the Claims Administrator shall prepare the Preliminary Final Accounting and submit it to Lead Class Counsel, the Secretary and the Court. The Preliminary Final Accounting shall identify: (1) the number and amount of all Final Track A Liquidated Awards, Final Track A Loan Awards, Final Track A Tax Awards, and Final Track B Awards (shown in Part III of the completed Track A and Track B Determination Forms); (2) the Implementation Costs incurred to date; (3) a good faith estimate of Implementation Costs necessary for the 28

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Claims Administrator to perform its final duties under this Agreement; (4) the Ombudsman Costs incurred to date; (5) a good faith estimate of Ombudsman Costs necessary for the Ombudsman to perform its final duties under this Agreement; (6) the amount of the Fee Award; (7) the sum of Track B Fees incurred by Track B Class Members, and (8) the amounts that the Secretary already has paid for interim Implementation Costs, interim Common Benefit Fees, and Ombudsman Costs, and the status of these funds.
8. Within thirty (30) calendar days of the date that the Secretary makes the payment specified in Section IV.H, the Claims Administrator shall:
a. Send to each prevailing Track A Class Member who retained Class Counsel or proceeded without counsel the Class Member’s Track A Claim Determination Form (Ex. A) (without Parts V and VI) and a check payable to the Class Member in the amount of the Class Member’s Final Track A Liquidated Award. The Claims Administrator shall also send to the Individual Counsel for each Track A Class Member who retained Individual Counsel the Class Member’s Track A Claim Determination Form (Ex. A) (without Parts V and VI) and a check jointly payable to the Class Member and his or her Individual Counsel in the amount of the Final Track A Liquidated Award. The Claims Administrator shall also send to each prevailing Track B Class Member the Class Member’s Track B Claim Determination Form (Ex. B) (without Parts V and VI) and a check payable to the Class Member in the amount of the Final Track B Award, minus the Class Member’s Final Track B Fee.
b. Send, on behalf of each prevailing Track A Class Member: (a) to the Internal Revenue Service (IRS), the amount of the Class Member’s Final Track A Tax Award; and (b) to FSA, the amount of the Class Member’s Final Track A Loan Award. The Claims Administrator shall provide the Class Member’s counsel, or the Class Member directly if the Class Member has no counsel, notice that such payment(s) has been made. When transmitting payments for Track A Loan Awards to FSA, the Claims Administrator shall provide FSA with the name, address, and Social Security or Taxpayer Identification Number of the Class Member on whose behalf the payment is being made as well as the FSA Account Number of the loan to which the credit should be made.
c. Send a check to the counsel for each prevailing Track B Class Member in the amount of that Class Member’s Final Track B Fee. 29

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9. Within thirty (30) calendar days of the date that the Secretary makes the payment specified in Section IV.H, the Claims Administrator shall cause to be paid from the Designated Account any outstanding Implementation Costs and Ombudsman Costs approved by the Court.
10. Within thirty (30) calendar days of the date that the Secretary makes the payment specified in Section IV.H and upon approval by the Court, the Claims Administrator shall pay Common Benefit Fees to Class Counsel equal to the Fee Award minus the sum of Track B Fees the Claims Administrator caused to be paid and minus any interim Common Benefit Fees already paid.
11. All checks distributed under this Section will be valid for 180 calendar days from the date of issue. The funds corresponding to any check that remains uncashed 181 calendar days from its date of issue shall remain in the Designated Account if Appendix 1 Section I.A.3 applies, shall be distributed pro rata to all prevailing Class Members if Appendix 1 Section I.A.4.a.(1) applies, or shall be distributed pro rata to the prevailing Class Members subject to the 30% reduction if Appendix 1 Section I.A.4.a.(2) applies. The Claims Administrator shall send a check made payable to the Class Member in the amount of the pro rata distribution, if applicable. These checks will be valid for 180 calendar days from the date of issue. Notwithstanding any other provision, no Class Member shall receive a total of more than his or her Provisional Track A Award or Track B Award.
12. If a Class Member who is deceased or was unable to submit a claim on his or her own behalf due to a physical or mental limitation prevails, and a legal representative has not yet been appointed for the Class Member, the funds payable to the Class Member shall be held for up to one year in a separate account established by Class Counsel for the benefit of the Class Member until a legal representative for the Class Member to whom the funds may be disbursed is appointed. The Claims Administrator may extend this period upon receipt of proof that a petition for appointment of a legal representative for the Class Member is pending in the appropriate court.
13. In the event there is a balance remaining in the Designated Account after the last check has been cashed, the last check has been invalidated due to passage of time, and after the passage of time set forth in Section V.E.12, Class Counsel may then move the Court to designate “Cy Pres Beneficiaries.” A “Cy Pres Beneficiary” must be a non-profit organization, other than a law firm, legal services entity, or educational 30

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institution that has provided agricultural, business assistance, or advocacy services, including assistance under Pigford and the Consolidated Case, to African American farmers between 1981 and the Execution Date. Each Cy Pres Beneficiary designated by the Court shall receive equal shares of the balance remaining in the Designated Account. The Claims Administrator shall send to each Cy Pres Beneficiary, via first class mail, postage prepaid, a check in the amount of the Beneficiary’s share.
F. Within 200 calendar days of making all payments set forth in this Section, the Claims Administrator shall prepare the “Final Accounting” and submit it to Lead Class Counsel, the Secretary, the Attorney General, and the Inspector General of the Department of Agriculture. The “Final Accounting” is an accounting prepared and signed by the Claims Administrator after all funds in the Designated Account have been disbursed. The Final Accounting shall identify: (1) the number and amount of all awards the Claims Administrator has caused to be paid to Class Members, to FSA, and to the Internal Revenue Service; (2) the Implementation Costs incurred under the Agreement; (3) the Ombudsman Costs incurred under the Agreement; (4) the amount the Claims Administrator caused to be paid in Common Benefit Fees; (5) the sum of Track B Fees the Claims Administrator caused to be paid; and (6) the amount of any leftover funds paid to Cy Pres Beneficiaries. The Final Accounting shall also identify the total amount of funds the Secretary has provided under this Agreement and the status of these funds.
G. For purposes of conducting the performance audit prescribed in Section 201(h)(2) of Pub. L. 111-291 based on a statistical sampling of adjudicated claims relating to this Agreement, the Inspector General of the Department of Agriculture shall have access, upon request, to the Claims Administrator, the Track A Neutral, and the Track B Neutral, and to any information and records generated, used, or received by them, including but not limited to names and addresses.
VI. OMBUDSMAN
A. The Court may appoint an independent Ombudsman, who shall report directly to the Court. The Ombudsman shall not be removed except for good cause and shall serve for as long as the Court has continuing jurisdiction to enforce the Settlement Agreement. The Ombudsman's fees, costs, and expenses (“Ombudsman Costs”) shall be paid separately from Implementation Costs, from the Designated Account, upon Court approval.
B. The Ombudsman shall:
1. Be available to Class Members and the public through a toll-free 31

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telephone number in order to address concerns about implementation of this Settlement Agreement;
2. Attempt to address any concerns or questions that any Class Member may have with respect to the implementation of this Settlement Agreement;
3. Make periodic written reports (not less than every six months) to the Court, the Secretary, and Class Counsel on the good faith implementation of this Settlement Agreement;
4. Have access to the records maintained by the Claims Administrator and the Neutrals involved in the claims process; and
5. Make recommendations to the Court relating to the implementation of this Settlement Agreement.
C. The Ombudsman shall not have the power to alter in any way substantive claims decisions made by the Neutrals or the Claims Administrator, nor shall the Ombudsman have the power to direct the Secretary and/or the United States to take any actions pursuant to this Settlement Agreement.
VII. ACCELERATIONS AND FORECLOSURES
A. The Secretary agrees to refrain from accelerating or foreclosing any FSA Farm Loan Program loan held by a Class Member that originated between January 1, 1981, and December 31, 1996, until the quarterly report provided in Section V.E.3 reports that the Class Member is not eligible for a Track A Award or a Track B Award under Section V.C.5 or V.D.5.
B. This Section does not:
1. Prohibit the Secretary from taking any action up to, but not including, acceleration or foreclosure that is necessary to protect his interests or service a loan under applicable law; or
2. Apply to a loan that is the subject of:
a. a judicial proceeding in which the United States is a party pending as of the Execution Date, or
b. a non-judicial foreclosure proceeding initiated under state law by or on behalf of the United States pending as of the Execution Date. 32

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VIII. THE DUTIES OF CLASS COUNSEL
A. Class Counsel, under the direction of Lead Class Counsel, shall:
1. Perform all duties set forth in Federal Rule of Civil Procedure 23, those ordered by the Court, and those provided for in this Agreement;
2. Provide representation without additional charge to Claimants who elect to submit claims under Track A;
3. Obtain from the Pigford Facilitator (a) a current version of the Pigford Timely 5(g) List, (b) copies of all late-filing requests, (c) all other available information and correspondence regarding the late-filing status of Class Members, including any lists prepared by the Pigford Facilitator reflecting such status, (d) the Pigford Participants List, and (e) the Pigford Opt-Out List. Lead Class Counsel shall make these materials available to the Claims Administrator and the Track A and B Neutrals. This information shall be subject to any existing or future protective orders of the Court;
4. Upon request by a Claimant or Individual Counsel representing a Claimant and after proof of compliance with any existing or future protective orders of the Court, provide to such Individual Counsel or Claimant verification of the Claimant’s presence on the most recent Pigford Timely 5(g) List, Pigford Participants List, and Pigford Opt-Out List in Class Counsel’s possession as well as copies of any of the communications or information in Class Counsel’s possession that refer or relate to the Claimant on whose behalf the request is made;
5. Provide the Court-approved Notice of this Agreement to Class Members;
6. Answer Class Member questions and respond to issues raised by the Ombudsman;
7. Provide information to Class Members regarding the status of claims processing or the distribution of the funds provided under this Agreement; and
8. Perform other such duties as may be incidental to proper coordination of this Agreement. Class Counsel shall have no obligation to perform any legal work for any Class Member related to the probate of a Class
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Member’s estate, including the appointment of executors or legal representatives.
B. Lead Class Counsel shall be responsible for general coordination and direction of the activities of all other Class Counsel. In performing this responsibility, Lead Class Counsel shall:
1. Determine and present the position of the Class on any matters arising during Court proceedings, including any proceedings relating to class certification and the approval and implementation of this Agreement;
2. Coordinate and direct the efforts of all counsel acting on behalf of Class Members so as to assist Class Members with completing claims, provide accurate and timely information to Class Members, allocate work load to Class Counsel, and ensure that all Class Counsel assigned to represent Class Members are performing the work allocated to them. (In this regard, certain counsel who are signatories to this Settlement Agreement have agreed to share responsibility for work performed on behalf of Class Members in the percentages set forth in a Counsel Participation Agreement that will be provided to the Court with Class Counsel’s fee petition.);
3. Develop and enforce time reporting requirements for all other counsel acting on behalf of the Class and maintain a database of all reported time and expenses by counsel acting on behalf of the Class;
4. Prepare and file a fee petition with the Court;
5. Subject to approval by the Court, retain and dismiss the Claims Administrator and the Track A and B Neutrals, and ensure that these administrators do not incur costs that would cause the Implementation Costs to exceed the Cost Cap;
6. Retain and dismiss other vendors and providers as appropriate to assist in the implementation of the Agreement;
7. Direct and oversee the implementation and dissemination of notice of this Agreement to Class Members, and control or direct all communications with Class Members subject to approval and oversight by the Court if required by Federal Rule of Civil Procedure 23;
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8. Develop the content of a Settlement Website (to be approved by the Court) and ensure its proper use and administration;
9. Plan, develop and conduct meetings or seminars designed to provide notice or assistance to Class Members regarding this Agreement;
10. Conduct additional or supplemental negotiations on behalf of the Class (in consultation with the Plaintiffs’ Steering Committee), if necessary;
11. Delegate specific tasks to other counsel or committees of counsel in a manner to ensure the Agreement is effectuated and adequate notice and assistance with the submission of claims is provided to Class Members;
12. Work with the Secretary’s Counsel as necessary for the conduct of this Agreement and its approval and implementation under Federal Rule of Civil Procedure 23;
13. Prepare and distribute periodic status reports and any accountings required by this Agreement to Class Members, the Court, or the Secretary as appropriate;
14. Maintain adequate time and disbursement records covering services as Lead Class Counsel and develop and enforce time reporting requirements for all other counsel acting on behalf of the Class;
15. Monitor and redirect the activities of Class Counsel to ensure that schedules are met and unnecessary expenditures of time and funds are avoided;
16. Develop procedures and methods to provide Class Members with answers to frequently asked questions, to respond to issues raised by the Ombudsman, to assist with the claims process and the distribution of funds provided under this Agreement, and to wind up the administration of this Agreement when appropriate; and
17. Coordinate all communications among counsel working on behalf of individual Class Members (both Class Counsel and Individual Counsel), and all communications among Class Counsel acting on behalf of the Class
18. Perform other such duties as may be incidental to proper coordination of this Agreement.
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C. Under the direction of Lead Class Counsel, the Plaintiffs’ Steering Committee shall assist Lead Class Counsel in the performance of their duties, including:
1. Overseeing the quality and allocation of work among Class Counsel; and
2. Performing other such duties as may be incidental to proper coordination of this Agreement.
IX. PROCEDURES GOVERNING APPROVAL OF THIS AGREEMENT
A. Within twenty (20) business days of the Execution Date, the Signatory Plaintiffs shall submit this Agreement and its Exhibits and a Motion for Preliminary Approval to the Court. The Motion shall specifically request that the Court set a hearing on the Motion and be accompanied by a proposed Preliminary Approval Order, a proposed Settlement Notice, and a proposed Settlement Notice Plan. The Motion shall specifically request that the Court:
1. Certify, for settlement purposes only, a Federal Rule of Civil Procedure 23(b)(1) limited fund, non-opt-out class as defined by this Agreement;
2. Appoint some of the Signatory Plaintiffs as Representatives for the Class pursuant to Federal Rule of Civil Procedure 23(a)(4);
3. Appoint Class Counsel pursuant to Federal Rule of Civil Procedure 23(g) and order that Class Counsel perform the duties set forth in this Agreement. Signatory Plaintiffs, in their Motion, will propose specific individuals as Class Counsel;
4. Designate Lead Class Counsel and the Plaintiffs’ Steering Committee. Signatory Plaintiffs, in their Motion, will propose specific individuals for these designations;
5. Preliminarily approve this Agreement;
6. Approve the Signatory Plaintiffs’ selection of a Claims Administrator and Neutrals to perform the duties set forth in this Agreement within the cost controls set out in this Agreement. The Claims Administrator and the Neutrals will be designated by Signatory Plaintiffs’ Counsel prior to the date of the requested hearing on the Preliminary Approval Motion;
7. Approve the Signatory Plaintiffs’ plan for dissemination of notice of this Agreement pursuant to Federal Rule of Civil Procedure 23(e)(1); 36

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8. For purposes of the notice to be provided to members of the Class, preliminarily determine the cap on Track A Individual Counsel Fees and the Track B Fees;
9. For purposes of the notice to be provided to members of the Class, preliminarily approve a range of Common Benefit Fees between 4.1% and 7.4% of the Fee Base;
10. Set a date and procedure by which objections from Class Members must be filed;
11. Set a date for a hearing (the “Fairness Hearing”) to consider whether the Agreement should be approved under Federal Rule of Civil Procedure 23(e);
12. Enter a Federal Rule of Civil Procedure 26(c) protective order regarding the dissemination of the personal information contained in the Pigford Participants List, the Pigford Opt-Out List, the Pigford Timely 5(g) List, and the information and correspondence maintained by the Pigford Facilitator regarding the late-filing status of Claimants; and
13. Authorize the Secretary to pay into the Designated Account the funds specified in Sections IV.C, IV.D, IV.F, and IV.G and order that the expenditure of such funds for purposes of this Agreement are a proper and consistent use of the funds, and that the Secretary shall not be liable in any other context or proceeding for these funds in the event that the Agreement becomes void or is voided.
B. The Signatory Plaintiffs shall provide the Secretary with a draft of the Motion for Preliminary Approval and accompanying exhibits ten (10) business days prior to filing such papers. .
C. No later than three (3) business days before the Fairness Hearing, Lead Class Counsel shall file with the Court a declaration confirming compliance with the Notice procedures approved by the Court.
D. At the Fairness Hearing, the Parties will each request that the Court finally approve this Agreement pursuant to Federal Rule of Civil Procedure 23(e), order all existing retainer agreements for Section 14012 claims between prospective Class Members and their attorneys be modified to conform to the fee provisions of this Agreement; finally approve the Track A Fee Cap and Track B Fee Cap; and finally approve the distribution of any remaining funds pursuant to Section IV
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of this Agreement. The Parties agree to take all actions necessary to obtain approval of this Agreement.
X. ATTORNEYS’ FEES, EXPENSES, AND COSTS
A. As part of the Motion for Preliminary Approval of this Agreement, Signatory Plaintiffs will move the Court to preliminarily approve a cap on Track B Fees of 8% of a Track B Claimant’s Final Award and a cap on Track A Individual Counsel Fees of 2% of a Track A Claimant’s Final Award. As part of the Motion for Final Approval of this Agreement, Signatory Plaintiffs will move the Court to finally approve a cap on Track B Fees of 8% of a Track B Claimant’s Final Award and a cap on Track A Individual Counsel Fees of 2% of a Track A Claimant’s Final Award.
B. As part of the Motion for Preliminary Approval, Signatory Plaintiffs will move the court to preliminarily approve the range of the Fee Award, for purposes of notice to the Class, between 4.1% and 7.4% of the Fee Base. No later than sixty (60) days after the Claim Deadline, Class Counsel will move the Court to set the amount of the Fee Award, except that the amount of the Fee Award shall be at least 4.1% and not more than 7.4% of the Fee Base. Lead Class Counsel shall have sole responsibility to prepare and file a petition with the Court seeking approval of, and setting the amount for, the Fee Award prior to receiving any fees under this Agreement.
C. The Secretary reserves the right to respond to the fee petition in full and reserves the right to argue that the Fee Award should be limited to 4.1% of the Fee Base.
D. The Court’s determination of the Fee Award, the cap on Track A Individual Counsel Fees, and the cap on Track B Fees shall be conclusive, and neither the Class, nor Class Counsel, nor the Secretary shall appeal the decision.
E. Class Counsel shall be paid Common Benefit Fees for their reasonable and compensable work on behalf of the Class. The total amount of Common Benefit Fees shall equal the Fee Award minus the sum of Track B Fees the Claims Administrator caused to be paid. Class Counsel may accept interim payments of Common Benefit Fees, costs, and expenses from funds designated in Section IV.F. Certain Signatory Plaintiffs’ Counsel have entered into a Counsel Participation Agreement which reflects their agreement regarding allocation of work and distribution of fees. This Counsel Participation Agreement will be submitted to the Court with Class Counsel’s fee petition.
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F. Except for the payments to the Designated Account required under Section IV, the Secretary shall not be liable to pay Class Counsel, Signatory Plaintiffs’ Counsel, or Individual Counsel any attorneys’ fees, expenses, or costs.
G. The Class Representatives, the Class, and/or Class Counsel may not terminate this Agreement because the Class Representatives, the Class, and/or Class Counsel assert that the amount of the Fee Award, the cap on Track A Individual Counsel Fees, or the cap on Track B Fees is inadequate.
H. The Class Representatives, the Class, Class Counsel, and Individual Counsel release, acquit, and forever discharge any claim that they may have against the Secretary for attorneys’ fees, expenses, or costs associated with their representation of the Signatory Plaintiffs, the Class, or any Member of the Class in the Consolidated Case or under this Agreement.
I. If a person preparing a claim on a Claimant’s behalf seeks the Claimant’s award as a representative of the Claimant’s estate, Class Counsel and Individual Counsel may, but are not required to, represent that Claimant in any probate proceedings. The fee for such probate work is outside the scope of this Agreement and is not subject to any limitation on attorneys’ fees, expenses, or costs contained within this Agreement.
XI. CONDITIONS THAT RENDER AGREEMENT VOID OR VOIDABLE
A. With the exception of Section XII,
1. This Agreement shall be voidable by the Secretary if, at any time prior to the Effective Date or the Preliminary Final Accounting Date, whichever is later, Congress appropriates additional funds such that the total of all funds appropriated for Section 14012 claims exceeds $1,250,000,000. The Secretary shall have sixty (60) calendar days from the date that this Agreement becomes voidable to notify Class Counsel that he is exercising the option to void this Agreement.
2. This Agreement shall be void if, at any time prior to the Effective Date or Preliminary Final Accounting Date, whichever is later, Congress appropriates additional funds, from the Judgment Fund, 31 U.S.C. § 1304, or any other source, or otherwise legislates to cause the 2010 Funds to be unlimited or without a maximum cap.
3. This Agreement shall be voidable by the Secretary if, prior to the Effective Date, Congress alters or amends Section 14012 to (a) expand or contract
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the cause of action set forth in Section 14012(b); (b) expand or contract the group of individuals eligible to file claims under Section 14012; and/or (c) impose new burdens or obligations under Section 14012 on the Secretary and/or the United States beyond those set forth in Section 14012 as of June 18, 2008. The Secretary shall have sixty (60) calendar days from the date that this Agreement becomes voidable to notify Class Counsel that it is exercising the option to void this Agreement.
4. This Agreement shall be voidable by the Secretary or the Class if the Court does not approve this Agreement in full, including the amount of the Fee Award, or if the Court’s order granting final approval of this Agreement is reversed on appeal. The Secretary and/or the Class shall have sixty (60) calendar days from the date of such decision to notify the other party that it is exercising its option to void this Agreement.
XII. EFFECT OF AGREEMENT IF VOIDED
A. Should this Agreement become void or be voided as set forth in Section XI,
1. The Secretary will not object to reinstatement of the individual complaints dismissed under this Agreement.
2. All negotiations in connection herewith, and all statements made by the Parties at or submitted to the Court during the Fairness Hearing shall be without prejudice to the Parties to this Agreement and shall not be deemed or construed to be an admission by a Party of any fact, matter, or proposition.
3. The Secretary retains all defenses, arguments, and motions as to all claims that have been or might later be asserted in the Consolidated Case, and nothing in this Agreement shall be raised or construed by any Signatory Plaintiff, Claimant, Class Representative, Class, or Class Counsel, to defeat or limit any defenses, arguments, or motions asserted by the Secretary. Neither this Agreement, nor the fact of its having been made, nor any exhibit or other document prepared in connection with this Agreement, shall be admissible, entered into evidence, or used in any form or manner in discovery, over the objection of the Secretary in the Consolidated Case or in any other action or proceeding for any purpose whatsoever.
4. With the exception of the Release provided in Section XII.A.5 below, Signatory Plaintiffs, Claimants, and Class Members shall retain all rights, claims, causes of action, arguments, and motions as to all claims that have 40

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been or might later be asserted in the Consolidated Case, and nothing in this Agreement shall be raised by the Secretary or the Secretary’s Counsel to defeat or limit any rights, claims, causes of action, arguments, or motions asserted by any Claimants and/or the Class. With the exception of the Release provided in Section XII.A.5 below, neither this Agreement, nor the fact of its having been made, nor any exhibit or other document prepared in connection with this Agreement, shall be admissible, entered into evidence, or used in any form or manner in discovery, over the objection of any Signatory Plaintiffs, Claimants, and/or the Class in the Consolidated Case or in any other action or proceeding for any purpose whatsoever.
5. The Signatory Plaintiffs hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE the United States and the Secretary from, and are hereby FOREVER BARRED and PRECLUDED from prosecuting, any and all claims, causes of action, or requests for any monetary relief, including, but not limited to, damages, tax payments, debt relief, costs, attorneys’ fees, expenses, and/or interest that, whether presently known or unknown, related to the funds that the Secretary has paid pursuant to Sections IV.C, IV.D, IV.F, and/or IV.G. Neither the Signatory Plaintiffs nor Signatory Plaintiffs’ Counsel shall be obligated to repay any interim Implementation Costs, interim Common Benefit Fees, and/or Ombudsman Costs paid by the Secretary under Sections IV.C, IV.D, IV.F, and/or IV.G, but Signatory Plaintiffs’ Counsel who have received interim Common Benefit Fees under this Agreement agree not to seek from the United States, the Secretary, or any other source any additional fees for the work compensated by the interim fees.
XIII. RELEASES
A. The Class Representatives, the Class, and its Members and their heirs, administrators, successors, and assigns (the “Class Releasors”) hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE the United States and the Secretary (the “Government Releasees”) from, and are hereby FOREVER BARRED and PRECLUDED from prosecuting, any and all claims, causes of action, or requests for any monetary relief, including, but not limited to, damages, tax payments, debt relief, costs, attorneys’ fees, expenses, and/or interest, whether presently known or unknown, that have been or could have been asserted in the Consolidated Case by reason of, with respect to, in connection with, or which arise out of, any matters alleged in the Consolidated Case that the Class Releasors, or any of them, have against the Government Releasees, or any of them.
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B. The Class Releasors hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE any and all rights they have or may have under Public Law No. 110-234 and/or 110-246, § 14012 (2008) and each of its provisions.
C. The Class Releasors hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE any and all rights they have or may have to request or obtain any information, documents, testimony, or discovery in the Consolidated Case or under § 14012 from the Government Releasees.
XIV. NO ADMISSION OF LIABILITY
A. Neither this Agreement nor any order approving it is or shall be construed as an admission by the Secretary and/or the United States of the truth of any allegation or the validity of any claim asserted in the Consolidated Case, or of the liability of the Secretary and/or the United States, nor as a concession or an admission of any fault or omission of any act or failure to act, or of any statement, written document, or report heretofore issued, filed or made by the Secretary and/or the United States, nor shall this Agreement nor any confidential papers related hereto and created for settlement purposes only, nor any of the terms of either, be offered or received as evidence of discrimination in any civil, criminal, or administrative action or proceeding, nor shall they be the subject of any discovery or construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of the Secretary and/or the United States, nor as an admission by any Party to this Agreement that the consideration to be given hereunder represents the relief which could have been recovered after trial.
B. The Secretary and the United States deny liability and damages as to each of the claims and requests for damages that were or could have been raised in the Consolidated Case, and this Agreement does not constitute, and may not be construed as, a determination or an admission of a violation of any law, rule, regulation, policy, or contract by the Secretary and/or the United States, the truth of any allegation made in the Consolidated Case, or the validity of any claim asserted in the Consolidated Case. This Agreement does not constitute, and may not be construed as, a determination or an admission that the Secretary and/or the United States is liable in this matter, that the Class or any Member is a prevailing party, that the Class or any Member was substantially justified in any claim or position, or that any claim, defense, or position of the United States was substantially unjustified.
C. Neither the determination to pay money nor the payment of money under the Non-Judicial Claims Process (Section V) shall be deemed to be a finding of fact, conclusion of law, or an admission of liability or damages by the Secretary and/or the United States, and any such determination to pay money or the payment of 42

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money under the Non-Judicial Claims Process (Section V) shall not be admissible in any civil, criminal, or administrative action or proceeding, nor shall it be construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of the Secretary and/or the United States, nor as an admission by any Party to this Agreement that the consideration to be given hereunder represents the relief which could have been recovered after trial.
D. Nothing herein shall be construed to preclude the use of this Agreement to enforce the terms thereof.
XV. CONTACT INFORMATION FOR THE SECRETARY AND FSA
A. The reports, forms, transmissions, accountings, and documentation that must or may be provided to the Secretary under this Agreement shall be sent via electronic transmission or overnight delivery to (1) Counsel of Record for the Secretary in the Consolidated Case, and (2) General Counsel, U.S. Department of Agriculture, 1400 Independence Avenue SW, Washington, DC 20250.
B. The reports, forms, transmissions, accountings, documentation, and checks that must or may be provided to FSA under this Agreement shall be sent via electronic transmission or overnight delivery to Deputy Administrator, Farm Loan Programs U.S. Department of Agriculture, Farm Service Agency, 1400 Independence Avenue SW, Washington, DC 20250, STOP 0520.
XVI. CONTINUING JURISDICTION
Notwithstanding the dismissal of claims on the Final Approval Date under Section IV.A, the Court shall retain continuing jurisdiction to oversee and enforce this Agreement until two-hundred (200) days after the date the Final Accounting in Section V.F is completed.
XVII. INTEGRATION This Agreement and its Exhibits constitute the entire agreement of the Parties, and no prior statement, representation, agreement, or understanding, oral or written, that is not contained herein, will have any force or effect.
XVIII. MODIFICATION
A. Before the Preliminary Approval Date, this Agreement, including the attached exhibits, may be modified upon written agreement of the Parties.
B. After the Preliminary Approval Date, this Agreement, including the attached exhibits, may be modified only with the written agreement of the Parties and with
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the approval of the Court, upon such notice to the Class, if any, as the Court may require. XIX. DUTIES CONSISTENT WITH LAW AND REGULATIONS Nothing contained in this Agreement shall impose on the Secretary any duty, obligation, or requirement, the performance of which would be inconsistent with federal statutes or federal regulations in effect at the time of such performance. XX. DUTY TO DEFEND The Parties to this Agreement shall defend against any challenges to it in any forum. XXI. HEADINGS The headings in this Agreement are for the convenience of the Parties only and shall not limit, expand, modify, or aid in the interpretation or construction of this Agreement. XXII. SEVERABILITY Should any non-material provision of this Agreement be found by a court to be invalid or unenforceable, then (A) the validity of other provisions of this Agreement shall not be affected or impaired, and (B) such provisions shall be enforced to the maximum extent possible. XXIII. COUNTERPARTS This Agreement may be executed in counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument. IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement:
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Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 53 of 119 For the Signatory Plaintiffs:

Henry Sanders, Esq. CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL, L.L.C. One Union Street Selma, AL 36701 Tel: (334) 875-9264 Fax (334) 875-9853
Dated:

David J. Frantz, Esq. CONLON, FRANTZ & PHELAN, LLP 1818 N Street, N.W., Suite 400 Washington, DC 20036 Tel: (202) 331-7050 Fax: (202) 331-9306
Dated:

Phillip L. Fr s, Esq. STINSON MORRISON HECKER LLP 1150 18th Street, N.W., Suite 800 Washington, DC 20036-3816 Tel: (202) 572-9904 Fax: (202) 572-9982

Dated:

2 3 - /1

Andrew H. Marks, Esq. CR0 WELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004 Tel: (202) 624-2920 Fax: (202) 628-5116
Dated:
James Scott Farrin, Esq. LAW OFFICES OF JAMES SCOTT FARRIN 280 South Mangum Street, Suite 400 Durham, NC 27701 Tel: (919) 688-4991 Fax: (919) 688-4468
Dated:
Donald McEachin, Esq. MCEACHIN & GEE LLP 4719 Nine Mile Road Henrico, VA 23223 Tel: (804) 226-4111 Fax: (804) 226-8888
Dated:

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APPENDIX 1
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Calculation of Final Awards
I. Pursuant to Section V.E.5 of the Settlement Agreement, individual Track A Awards and Track B Awards are calculated as follows:
A. In order to calculate each Class Member’s Final Award(s), the Claims Administrator shall do as follows:
1. First, if the sum total of all Track B Awards exceeds the Track B Cap,
a. The Claims Administrator shall divide each Class Member’s Track B Award by the sum total of all Track B Awards to obtain that Class Member’s “Track B Percentage.”
b. Then, the Claims Administrator shall multiply each Class Member’s Track B Percentage by the Track B Cap to obtain the Class Member’s “Modified Track B Award.” The Claims Administrator shall then replace the Track B Award indicated in Part V of the Class Member’s Track B Determination Form with his or her Modified Track B Award. This Modified Track B Award shall serve as the Class Member’s “Track B Award” or “Provisional Track B Award” for purposes of this Section.
2. Next, the Claims Administrator shall calculate the Sum of Available Funds and the Sum of Awards. The Sum of Available Funds is the lesser of (a) the sum of the 2010 Funds plus the 2008 Funds, minus the difference between the Fee Award and the product of the cap on Track B Fees set by the Court in Settlement Agreement Section X.A multiplied by the Sum of Provisional Track B Awards (as modified by Appx. Section I.A.1), minus the incurred and anticipated final Implementation Costs, minus the incurred and anticipated Ombudsman Costs; or (b) the sum of all Provisional Track A Liquidated Awards, Provisional Track A Loan Awards, Provisional Track A Tax Awards, and Provisional Track B Awards, as shown on Part V of the Track A Claim Determination Forms (Ex. A). The Sum of Awards is the sum of all Provisional Track A Liquidated Awards, Provisional Track A Loan Awards, Provisional Track A Tax Awards, and Provisional Track B Awards, as shown on Part V of the Track A and Track B Claim Determination Forms (Exs. A and B).
3. If the Sum of Available Funds is equal to or exceeds the Sum of Awards, each prevailing Track A Class Member’s Final Track A Liquidated Award, if applicable, shall be equal to the Provisional Track A Liquidated Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A). Each prevailing Track A Class Member’s Final Track A Loan Award, if applicable, shall be equal to the Provisional Track A Loan Award in Part V of that Class Member’s Track A Claim Determination Form. Each prevailing Track A Class Member’s Final Track A Tax Award, if applicable, shall be equal to the Provisional Track A Tax Award in Part V of that Class Member’s Track A Claim Determination Form. Each prevailing Track B Class Member’s Final Track B
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Award, if applicable, shall be equal to the Provisional Track B Award in Part V of that Class Member’s Track B Claim Determination Form (Ex. B).
4. If the Sum of Available Funds is less than the Sum of Awards:
a. For each prevailing Class Member whose Late-Filing Request was submitted after September 15, 2000, the Claims Administrator shall reduce by 30% the Class Member’s Provisional Track A Liquidated Award, Provisional Track A Loan Award, Provisional Track A Tax Award, and Provisional Track B Award, and so modify Part V of the Class Member’s Track A or Track B Claim Determination Form. The Claims Administrator shall then recalculate the total of all Provisional Track A Awards and Provisional Track B Awards to obtain a Revised Sum of Awards.
(1) If the Revised Sum of Awards is more than the Sum of Available Funds,
(a) The Claims Administrator shall divide the Sum of Available Funds by the Revised Sum of Awards to obtain a percentage. This percentage shall be called the “Second Percentage.”
(b) Each prevailing Track A Class Member’s Revised Track A Liquidated Award, if applicable, shall be equal to the Second Percentage multiplied by the Provisional Track A Liquidated Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A). Each prevailing Track A Class Member’s Revised Track A Loan Award, if applicable, shall be equal to the Second Percentage multiplied by the Provisional Track A Loan Award in Part V of that Class Member’s Track A Claim Determination Form. Each prevailing Track A Class Member’s Revised Track A Tax Award, if applicable, shall be equal to the Second Percentage multiplied by the Provisional Track A Tax Award in Part V of that Class Member’s Track A Claim Determination Form multiplied by the Second Percentage. Each prevailing Track B Class Member’s Revised Track B Award, if applicable, shall be equal to the Second Percentage multiplied by the Provisional Track B Award in Part V of that Class Member’s Track B Claim Determination Form (Ex. B).
(2) If the Revised Sum of Awards is less than the Sum of Available Funds,
(a) First, the Claims Administrator shall subtract the Revised Sum of Awards from the Sum of Available Funds to
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determine the “Leftover Interim Reduced Funds.”
(b) Second, for each Class Member subject to the 30% reduction, the Claims Administrator shall calculate that Class Member’s “Percentage of Leftover Reduced Funds” by dividing the Class Member’s Provisional Track A or Track B Award (reduced by 30%) by the sum of all Provisional Awards subject to the 30% reduction.
(c) Third, for each Class Member subject to the 30% reduction, the Claims Administrator shall multiply the Class Member’s Percentage of Leftover Reduced Funds times the Leftover Interim Reduced Awards to obtain that Class Member’s “Leftover Funds Enhancement.”
(d) Fourth, for each Class Member subject to the 30% reduction, the Claims Administrator shall (a) divide the Class Member’s Provisional Track A Liquidated Award by the Class Member’s Provisional Track A Award to obtain the Class Member’s “Liquidated Award Percentage,” (b) divide the Class Member’s Provisional Track A Loan Award by the Class Member’s Provisional Track A Award to obtain the Class Member’s “Loan Award Percentage,” and (c) divide the Class Member’s Provisional Track A Tax Award by the Class Member’s Provisional Track A Award to obtain the Class Member’s “Tax Award Percentage.”
(e) For each Class Member subject to the 30% reduction,
(i) The Class Member’s Revised Track A Liquidated Award, if applicable, shall be equal to the sum of (1) the Class Member’s Liquidated Award Percentage multiplied by the Leftover Funds Enhancement, and (2) 70% of the Provisional Track A Liquidated Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(ii) The Class Member’s Revised Track A Loan Award, if applicable, shall be equal to the sum of (1) the Class Member’s Loan Award Percentage multiplied by the Leftover Funds Enhancement, and (2) 70% of the Provisional Track A Loan Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(iii) The Class Member’s Revised Track A Tax Award, if applicable, shall be equal to the sum of (1) the
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Class Member’s Tax Award Percentage multiplied by the Leftover Funds Enhancement, and (2) 70% of the Provisional Track A Tax Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(iv) The Class Member’s Revised Track B Award, if applicable, shall be equal to the sum of (1) the Class Member’s Leftover Funds Enhancement, and (2) 70% of the Provisional Track B Award in Part V of that Class Member’s Track B Claim Determination Form (Ex. B).
(f) For each Class Member not subject to the 30% reduction,
(i) The Class Member’s Revised Track A Liquidated Award, if applicable, shall be equal to the Provisional Track A Liquidated Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(ii) The Class Member’s Revised Track A Loan Award, if applicable, shall be equal to the Provisional Track A Loan Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(iii) The Class Member’s Revised Track A Tax Award, if applicable, shall be equal to the Provisional Track A Tax Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(iv) The Class Member’s Revised Track B Award, if applicable, shall be equal to the Provisional Track B Award in Part V of that Class Member’s Track B Claim Determination Form (Ex. B).
B. Next, the Claims Administrator shall calculate the Provisional Track B Fee for each Class Member by multiplying each Class Member’s Revised Track B Award by the fee percentage indicated by the Class Member in Part IX of the Class Member’s Claim Form. The Claims Administrator shall then calculate the sum of all Provisional Track B Fees.
C. If the Claims Administrator determined that the Sum of Available Funds was less than the Sum of Awards (i.e., Revised Awards were calculated under Appx. Section I.A.4), then the Claims Administrator shall calculate the Class Member’s Final Awards as follows:
1. If the Sum of Available Funds was calculated using Appx. Section I.A.2.(a), the Claims Administrator shall divide (1) the Sum of Available Funds minus (a) the 5

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 75 of 119 difference between (i) the cap on Track B Fees set by the Court in Settlement Agreement Section X.A multiplied by the Sum of Provisional Track B Awards and (ii) all Track B Fees calculated in Appx. Section I.B by (2) the Sum of Available Funds, to obtain the “Available Funds Multiplier.” The Claims Administrator shall then calculate each Class Member’s Final Track A Liquidated Award, Final Track A Loan Award, Final Track A Tax Award, Final Track B Award, and Final Track B Fee by multiplying each Revised Award by the Available Funds Multiplier.
2. If the Sum of Available Funds was calculated using Section I.A.2.(b), the Revised Awards calculated in Appx. Section I.A.4 are the Class Members’ Final Awards, and the Provisional Track B Fee calculated in Section I.B, if applicable, is the Class Member’s Final Track B Fee.
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Appendix 1a

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SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)
EXAMPLES OF CLAIM CALCULATIONS
The following provides illustrative examples to demonstrate how variations in the number of successful Claimants may affect the amount of the payments made to successful Class Members, as determined by the procedures set forth in Appendix 1 of the Settlement Agreement. Calculation of Final Awards under the Settlement is a two-step process. First, the Claims Administrator must apply the aggregate Track B Cap to the Track B Awards. After that is done, the Claims Administrator must determine whether reductions apply to each award based on the number of successful Class Members and the availability of funds. These types of calculations are illustrated below.
I. Application of Track B Cap
Under the terms of the Settlement Agreement, successful Track B Class Members are entitled to an award equal to “the amount of [their] actual damages, up to $250,000.” However, Track B Awards, in the aggregate, are capped at $100 million. Thus, assuming the total funding appropriated by Congress for black farmer claims is $1.25 billion, the total of all Track B Awards would be capped at $100 million.
The following chart illustrates the application of the Track B Cap, as prescribed by Section I.A.1 of Appendix 1. For illustrative purposes, we assume a $100 million Track B Cap applies, and that only two uniform groups of successful Track B Claimants are entitled to awards – (1) Group B1, each member of which is eligible for a $250,000 Track B Award (based on proof of actual damages of $250,000 or more); and (2) Group B2, each member of which is eligible for a $100,000 Track B Award (based on proof of actual damages of $100,000).

Number of Successful Track B Claimants
Group B1 – 100 Claimants ($250,000 per claim) Group B2 – 500 Claimants ($100,000 per claim)

Total Amount of
Proven Claims
$75 million

Percent of Track B Award Provided After Application of Track B Cap

Adjusted Track B Award after Application of the
Track B Cap

100%

Group B1 – $250,000 per claim Group B2 – $100,000 per claim

Group B1 – 500 Claimants ($250,000 per claim) $200 million
Group B2 – 750 Claimants ($100,000 per claim)

Group B1 – $125,000 per claim 50%
Group B2 – $50,000 per claim

Group B1 – 1,000 Claimants ($250,000 per claim) $400 million
Group B2 – 1,500 Claimants ($100,000 per claim)

Group B1 – $62,500 per claim 25%
Group B2 – $25,000 per claim

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II. Calculation of Awards After Application of the Track B Cap
After application of the Track B Cap to Track B Awards, the Claims Administrator is required to calculate the Final Award for each successful Class Member based on the number of successful Class Members and the overall availability of funds. Under the Settlement, Track A Class Members are eligible to recover three categories of damages: (1) liquidated damages of $50,000 for credit claims and/or $3,000 for non-credit claims; (2) a loan award equal to the amount of outstanding debt the Class Member owes to USDA/FSA; and (3) a tax award equal to 25% of the sum of the liquidated damages award and the loan award. The Settlement makes a distinction between “Late Filers” – i.e., those Class Members who filed Late-Filing Requests in Pigford on or between October 13, 1999 and September 15, 2000 – and “Late-Late Filers” – i.e., those Class Members who filed Late-Filing Requests in Pigford on or between September 16, 2000 and June 18, 2008. To the extent that Congress does not appropriate sufficient funds to pay all Track A and Track B Class Members in full, the Settlement Agreement provides for a reduction of up to 30% in the awards for LateLate Filers. If a 30% reduction for Late-Late Filers is insufficient to bring total awards within the amount of available funds, all awards to successful Class Members – both Late Filers and Late-Late Filers – will be subject to reduction to conform the awards to the amount of available funds. The following chart illustrates the calculations prescribed by Section I.A.2-4, I.B, and I.C. of Appendix 1, based on variation in the number of successful Class Members.
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Final Awards for Track A and Track B Class Members

Number of Successful Class Members by Type
Group A1 (“Late Filers”) = 6,000 Claimants Group A2 (“Late-Late Filers”) = 1,500 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

Total Number of Successful
Class Members

Track A Late Filers
(A1) (per claim)

Amount of Awards

(With “Lower Costs”/With “Higher Costs”)

Track A

Track B

Track B

Late-Late Filers

Late Filers

Late-Late Filers

(A2)

(B1)

(B2)

(per claim)

(per claim)

(per claim)

7,800

$75,000 / $75,000 $75,000 / $75,000 $250,000 / $250,000 $250,000 / $250,000

#1

#2

#3

Scenario Scenario Scenario Scenario Scenario

Group A1 (“Late Filers”) = 9,600 Claimants Group A2 (“Late-Late Filers”) = 2,400 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

12,300

$75,000 / $75,000 $75,000 / $75,000 $250,000 / $250,000 $250,000 / $250,000

Group A1 (“Late Filers”) = 12,000 Claimants Group A2 (“Late-Late Filers”) = 3,000 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

15,300

$75,000 / $74,847 $70,410 / $52,393 $250,000 / $249,490 $234,700 / $174,643

#4

Group A1 (“Late Filers”) = 20,000 Claimants Group A2 (“Late-Late Filers”) = 5,000 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

25,300

$48,555 / $46,012 $33,989 / $32,208 $161,850 / $153,375 $113,295 / $107,363

#5

Group A1 (“Late Filers”) = 40,000 Claimants Group A2 (“Late-Late Filers”) = 10,000 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

50,300

$24,735 / $23,438 $17,315 / $16,406 $82,450 / $78,125 $57,715 / $54,688

The numbers used in this chart are for illustrative purposes only. The sole purpose of this chart is to show how the array of variables might affect the actual recovery of a successful claimant. Even if Congress appropriates the full $1.25 billion that has been sought to fund this settlement, the figures used in this chart should not be relied on as a predictor of how much a successful Track A Claimant will recover because that figure cannot be computed until the total number of successful claimants is established and the actual amounts of Implementation Costs, Ombudsman Costs, and attorneys’ fees are determined.
Accordingly, for illustrative purposes only, this chart assumes that (1) Congress appropriates $1.25 billion to pay successful Section 14012 Claimants; (2) all successful Track A claimants receive a total award of $75,000 (including liquidated damages, debt relief, and tax relief); and (3) all successful Track B claimants receive a total award of $250,000. From there, this chart computes a range of recoveries using different assumptions regarding the number of successful claimants and estimates for the total of Implementation Costs, Ombudsman Costs, and attorneys’ fees that would be deducted from the available settlement funds prior to the calculation and distribution of awards. For purposes of this illustrative chart, the “Lower Costs” figure assumes $15 million for Implementation Costs and Ombudsman Costs, and attorneys’ fees of 4.1%. The “Higher Costs” figure assumes $35 million for Implementation Costs and Ombudsman Costs, and attorneys’ fees of 7.4%.
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EXHIBIT A

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SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

“TRACK A” CLAIM DETERMINATION FORM

PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

PART II. SUMMARY OF CLAIM DETERMINATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)
Your Claim is APPROVED. Your Total Award is $_______. From this amount, a payment of $______ has been made on your behalf to the IRS to reduce your expected tax liability associated with this award, and a payment of $______ has been made on your behalf to USDA/FSA to reduce your outstanding Farm Loan Program debt. Enclosed with this Form is a check for the remaining $______. (See Part III)
Your Claim is DENIED. (See Part IV)

Track A Claim Determination Form – Page 1

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART III. EXPLANATION OF APPROVED CLAIM (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

Several months ago, you submitted a Track A claim to the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-0511 (D.D.C.). Since that time, a Neutral has determined that your claim is APPROVED. Enclosed with this Form is a check containing your award. A payment to the Internal Revenue Service (IRS) to reduce your expected tax liability associated with this award has been made on your behalf. If you obtained a Track A Loan Award, a payment to U.S. Department of Agriculture, Farm Service Agency (USDA/FSA) to reduce outstanding Farm Loan Program debt has also been made on your behalf.

Based on the materials you submitted, the following claims were APPROVED:

Track A Credit Claim

Track A Non-Credit Claim

AWARD YOU RECEIVE

TRACK A CREDIT CLAIM

Track A Liquidated Award:

$_________________

Track A Loan Award:

$_________________

Subtotal (Liquidated Award + Loan Award):

$_________________

Track A Tax Award (25% multiplied by the subtotal):

$_________________

TOTAL TRACK A CREDIT CLAIM AWARD:

$_________________

TRACK A NON-CREDIT CLAIM. TOTAL TRACK A NON-CREDIT CLAIM AWARD:

$_________________

TOTAL AWARD:

$_________________________________________

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PAYMENTS MADE AND MONEY YOU RECEIVE
If you received a Loan Award or a Tax Award on a Track A Credit Claim, those payments have already been made by the Claims Administrator to USDA/FSA and the IRS respectively on your behalf. The check contained herein is the remainder of your total award.
$_________________________ (Total Award)
– $_________________________ (Total Track A Loan Award Made to USDA/FSA)
– $_________________________ (Total Track A Tax Award Made to IRS)

CHECK YOU RECEIVE: $_____________________________________________

NOTE: You are responsible for compliance with all applicable federal, state, and local tax requirements that arise as a result of this award. You are encouraged to consult a tax professional if you have any questions about these requirements.
NOTE: If you received a Loan Award (debt payment) as part of your Track A Award, it is possible that the payment did not satisfy the entire amount outstanding on your USDA/FSA loan. In that event, you are responsible for paying the remainder of your outstanding debt. Interest on your debt will continue to accrue unless and until you pay your debt in full, and USDA/FSA maintains any and all options for servicing and recovering outstanding debt, including but not limited to acceleration and foreclosure.
QUESTIONS
If you have any questions, you may contact Class Counsel at [Phone]

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART IV. EXPLANATION OF DENIED CLAIM (TO BE COMPLETED BY THE TRACK A NEUTRAL)

Several months ago, you submitted a Track A claim to the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-0511 (D.D.C.). Since that time, a Neutral has determined that your claim is DENIED.

Your claim is DENIED because (check all that apply):

You failed to prove that you are an African-American farmer.

You failed to prove that you farmed, or attempted to farm, between January 1, 1981, and December 31, 1996.

You failed to prove that you owned or leased, or attempted to own or lease, farm land.

You failed to prove that you applied, or constructively applied, for a specific farm credit transaction or non-credit benefit at a USDA office between January 1, 1981, and December 31, 1996.

You failed to prove that the farm loan or non-credit benefit for which you applied was denied, provided late, approved for a lesser amount than requested, encumbered by a restrictive condition, or that USDA failed to provide an appropriate loan service.

You failed to prove that USDA’s treatment of your loan or non-credit benefit application led to economic damage to you.

You failed to prove that you complained of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of you in response to your application.

THIS DECISION IS FINAL. IT IS NOT REVIEWABLE BY THE CLAIMS ADMINISTRATOR, THE TRACK A NEUTRAL,
THE TRACK B NEUTRAL, THE COURT, OR ANY OTHER PARTY OR BODY, JUDICIAL OR OTHERWISE.

IMPACT ON OUTSTANDING LOAN OBLIGATIONS: Please note that if you are not current on loan payments you owe the USDA, the Secretary of Agriculture may, in view of the denial of your claim, proceed immediately with any loan acceleration or foreclosure proceedings he believes are appropriate.

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART V. PROVISIONAL AWARD FOR APPROVED CLAIMS (TO BE COMPLETED BY THE TRACK A NEUTRAL)
The Claimant is eligible for the following Track A award(s), subject to reduction:
TRACK A CREDIT CLAIM. The Track A Credit Claim is APPROVED. The Claimant is eligible for an award, subject to reduction, as follows:

Track A Liquidated Award ($50,000):
Track A Loan Award: _____________________ FSA Account Number
_____________________ FSA Account Number
_____________________ FSA Account Number
Subtotal (Liquidated Award + Loan Award):
Track A Tax Award (25% multiplied by the subtotal):

$_________________ $_________________ $_________________ $_________________ $_________________ $_________________

TOTAL TRACK A CREDIT CLAIM AWARD:

$_________________

TRACK A NON-CREDIT CLAIM. The Track A Non-Credit Claim is APPROVED. The Claimant is eligible for an award, subject to reduction, as follows:

TOTAL TRACK A NON-CREDIT CLAIM AWARD ($3,000):

$________________

TOTAL AWARD:

$_____________________________________________

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART VI. DATE OF LATE-FILING REQUEST (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)
The Class Member submitted a Late-Filing Request in Pigford on or before September 15, 2000.
The Class Member submitted a Late-Filing Request in Pigford after September 15, 2000.

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EXHIBIT B

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SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

“TRACK B” CLAIM DETERMINATION FORM
PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

PART II. SUMMARY OF CLAIM DETERMINATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)
Your Claim is APPROVED. Your Award is $_______. From this amount, a payment of $_______ has been made on your behalf to your attorney to pay his or her fees, costs, and expenses. Enclosed with this Form is a check for the remaining $_______. (See Part III)
Your Claim is DENIED. (See Part IV)
Track B Claim Determination Form – Page 1

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART III. EXPLANATION OF APPROVED CLAIM (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

Several months ago, you submitted a Track B claim to the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-511 (D.D.C.). Since that time, a Neutral has determined that your claim is APPROVED.

AWARD YOU RECEIVE

TOTAL AWARD: $__________________________________________________________
PAYMENTS MADE AND MONEY YOU RECEIVE Payments to your attorney are made automatically from your award. On your Claim Form, you
indicated that you and your attorney have negotiated a Track B Fee of ______% of your Track B Award. $_________________________ (Total Award)
– $_________________________ (Attorney’s Fees, Costs, and Expenses)

CHECK YOU RECEIVE: $______________________________________________________
NOTE: You are responsible for compliance with all applicable federal, state, and local tax requirements that arise as a result of this award. You are encouraged to consult a tax professional if you have any questions about these requirements.
QUESTIONS
If you have any questions, you may contact Class Counsel at [Phone].

Track B Claim Determination Form – Page 2

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART IV. EXPLANATION OF DENIED CLAIM (TO BE COMPLETED BY THE TRACK B NEUTRAL)

Several months ago, you submitted a Track B claim to the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-511 (D.D.C.). Since that time, a Neutral has determined that your claim is DENIED.
Your claim is DENIED because (check all that apply):

You failed to prove that you are an African-American farmer.

You failed to prove that you farmed, or attempted to farm, between January 1, 1981, and December 31, 1996.

You failed to prove that you owned or leased, or attempted to own or lease, farm land.

You failed to prove that you applied for a specific farm credit transaction at a USDA office between January 1, 1981, and December 31, 1996.

You failed to prove that the farm loan for which you applied was denied, provided late, approved for a lesser amount than requested, encumbered by a restrictive condition, or that USDA failed to provide an appropriate loan service.

You failed to prove that USDA’s treatment of your loan application was less favorable than that accorded a specifically identified similarly situated white farmer.

You failed to prove that USDA’s treatment of your loan application led to economic damage to you.

You failed to prove that you complained of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of you in response to your application.

THIS DECISION IS FINAL. IT IS NOT REVIEWABLE BY THE CLAIMS ADMINISTRATOR, THE TRACK A NEUTRAL,
THE TRACK B NEUTRAL, THE COURT, OR ANY OTHER PARTY OR BODY, JUDICIAL OR OTHERWISE.

IMPACT ON OUTSTANDING LOAN OBLIGATIONS: Please note that if you are not current on loan payments you owe the USDA, the Secretary of Agriculture may, in view of the denial of your claim, proceed immediately with any loan acceleration or foreclosure proceedings he believes are appropriate.

Track B Claim Determination Form – Page 3

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_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART V. PROVISIONAL AWARD FOR APPROVED CLAIM (TO BE COMPLETED BY THE TRACK B NEUTRAL)

The Claimant is eligible for the following Track B Award, subject to reduction:

Track B Award (actual damages up to $250,000):

$_________________ (This award may not exceed $250,000)

The Claimant’s Claim Form indicated that the Claimant negotiated the following Track B Fee with his or her counsel:

Track B Fee (%):

_________________%

PART VI. DATE OF LATE-FILING REQUEST (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

The Class Member submitted a Late-Filing Request in Pigford on or before September 15, 2000.
The Class Member submitted a Late-Filing Request in Pigford after September 15, 2000.

Track B Claim Determination Form – Page 4

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EXHIBIT C

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CLAIM FORM In re Black Farmers Discrimination Litigation Civil Action No. 1:08-mc-0511 (PLF)

For help in completing this Form call us toll-free at 1-877-810-8110 or email questions@blackfarmerscase.com

Please print or type clearly in the spaces provided below. Do not use pencil, red ink or staples.

1. CLAIMANT INFORMATION If you are filing a

claim on behalf of a

deceased Claimant or a Claimant who

First Name				

Middle		

Last Name

is unable to submit

a claim for himself or herself due to

Business Name, if applicable					

Email Address

physical or mental

limitation, you must complete Section 4

Mailing Address, including apartment, unit or box number

of this Claim Form on

the following page. City				

State Zip		

Primary Phone Number

SSN or Taxpayer ID Number		

Date of Birth		

Additional Phone Number

Pigford Tracking Number, if known

2. CO-CLAIMANT INFORMATION If applicable, list all First Co-Claimant

individuals who were,

or would have been,

co-applicants to the First Name				

Middle		

loan application

which is the subject

of this claim

SSN or Taxypayer ID Number

Date of Birth		

of unfavorable

treatment.

Relationship to Claimant					 Enclose extra sheets Second Co-Claimant
if you need to list

more than two

co-applicants.

First Name				

Middle		

Last Name Phone Number Email Address
Last Name

SSN or Taxypayer ID Number

Date of Birth		

Phone Number

Relationship to Claimant					

3. CLAIMANT’S COUNSEL INFORMATION

If applicable,

provide information

about the lawyer representing the

First Name				

Middle		

claimant.

Business Name, if applicable					

Email Address
Last Name Email Address

Mailing Address, including apartment, unit or box number

City				

State Zip		

Primary Phone Number

www.blackfarmerscase.com

Epiq Systems (Claims Administrator), PO Box 4028, Portland, OR 97208-4028

Page 1 of 8

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CLAIM FORM In re Black Farmers Discrimination Litigation Civil Action No. 1:08-mc-0511 (PLF)

For help in completing this Form call us toll-free at 1-877-810-8110 or email questions@blackfarmerscase.com

Section 4 Instructions: If you are submitting a claim on behalf of a deceased claimant or a claimant who is unable to submit his or her claim due to physical or mental limitation, list that claimant in Part 1 and complete this section with YOUR information.

4. FOR DECEASED CLAIMANTS OR THOSE WITH MENTAL OR PHYSICAL LIMITATIONS

If you are filing a

claim on behalf of a The claimant is

Deceased

Unable to submit a claim due to mental or physical limitation

deceased Claimant

or a Claimant who

is unable to submit Preparer’s First Name			 a claim for himself

Middle		

Last Name

or herself due to

physical or mental Mailing Address, including apartment, unit or box number limitation, you must

complete one of the

sections below, as City				 applicable, withYOUR

State Zip		

Primary Phone Number

information, not the

Claimant’s.

SSN or Taxpayer ID Number		

Date of Birth		

Additional Phone Number

Email Address						

Relationship to Claimant

FOR DECEASED CLAIMANTS

If you are submitting

a claim on behalf

of a deceased

If an estate for the claimant exists, provide the estate’s Taxpayer ID Number

claimant, you must

submit a copy of Is the claimant’s death certificate included with this Claim Form?		

Yes		

No

a death certificate

with this Claim Form and answer these

Are you the claimant’s Legal Representative?					

Yes		

No

questions.

If Yes, you must submit proof of legal representation with this Claim Form.

NOTE: “Legal

If No, explain why you believe you will be appointed the legal representative of the claimant’s estate below.

Representative” is the

person filing a claim

on the claimant’s

behalf, not the

claimant’s lawyer.

THOSE UNABLE TO SUBMIT A CLAIM DUE TO PHYSICAL OR MENTAL LIMITATIONS

If you are submitting

a claim on behalf Are you the claimant’s Legal Representative?					

Yes		

No

of a claimant who

is unable to do

If Yes, you must submit proof of legal representation with this Claim Form.

so because of a disability, complete this section.

If No, you must explain below why the claimant is unable to submit a claim on his or her own behalf and why you assert a right to do so on the claimant’s behalf.

NOTE: “Legal Representative” is the person filing a claim on the claimant’s behalf, not the claimant’s lawyer.

www.blackfarmerscase.com

Epiq Systems (Claims Administrator), PO Box 4028, Portland, OR 97208-4028

Page 2 of 8

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CLAIM FORM

For help in completing this Form

In re Black Farmers Discrimination Litigation

call us toll-free at 1-877-810-8110

Civil Action No. 1:08-mc-0511 (PLF)

or email questions@blackfarmerscase.com

Section 5 Instructions: Complete this Section with information about the Claimant identified in Part 1.
5. CLASS MEMBERSHIP

You are required to answer both questions in this section to verify your eligibility for Class Membership.

A. Did you submit a late-filing request under Section 5(g) of the Pigford Consent Decree after October 12, 1999, and before June 19, 2008?

Yes			

No

Section 5(g) of the Pigford Consent Decree permitted a black farmer who missed the Pigford claim deadline (October 12, 1999) to file a request to participate in the Pigford claims process late. To answer Yes above, your late-filing request must have been submitted to the Pigford Facilitator, Pigford Monitor, a Pigford Adjudicator, the Pigford Arbitrator, or the Court.

If Yes, you may need to submit independent documentary evidence of your late-filing request along with this Claim

Form to the Claims Administrator If your name appears on the Pigford Timely 5(g) List, a list maintained by the Claims

Administrator with records of claimants who filed late-filing requests after October 12, 1999 and on or before September

15, 2000, then you have met this requirement and do not need to submit additional documentation of your late-filing

request. Call the Claims Administrator at 1-877-810-8110 to find out if you are on the Pigford Timely 5(g) List.

If your name does not appear on the Pigford Timely 5(g) List, you must submit independent documentary evidence that establishes, by a preponderance of the evidence, that you submitted a late-filing request after October 12, 1999 and before June 19, 2008. Without this independent documentary evidence -- which must be submitted with this Claim Form -- you will not be able to participate in this case.

B. Have you already obtained a determination on the merits of your discrimination complaint?

Yes			

No

You will be deemed to have a determination on the merits of your discrimination complaint and ineligible for relief if:

• Your name appears on the Pigford Participants List, a list of all claimants whose claims were heard in Pigford v. Glickman, or the Pigford Opt-Out List, a list of those claimants who opted out of Pigford v. Glickman. Call the Claims Administrator at 1-877-810-8110 to find out if you are on either of these lists.

• You have obtained a judgment from a judicial or administrative forum on the basis of the race discrimination claim that provides the basis of your discrimination complaint; or

• The Claims Administrator otherwise determines that you already have obtained a determination on the merits of your discrimination complaint.

6. CLAIMANT ACKNOWLEDGEMENTS Before your claim can A. You acknowledge that you will be bound by the Neutral’s ruling on your claim, and that

be considered, you

the Neutral’s determination will be the final determination on your claims. You forever

must acknowledge

and finally waive the right to seek review of this determination in any court or before any Acknowledged

that you have read

tribunal and forever and finally release USDA from any and all claims raised that have been

and understood

or could have been raised in In re Black Farmers Discrimination Litigation.

several requirements B. If you submit a claim under Track A and it is determined to be meritorious by the Claims

of the claims process. Administrator, you may receive a payment to reduce or discharge eligible outstanding

Please indicate your

United States Department of Agriculture (USDA)/Farm Service Agency (FSA) debt. This

acknowledgement by

payment will be made directly to USDA/FSA on your behalf. You acknowledge this payment

checking the boxes

may not fully discharge your outstanding debts to USDA/FSA. You further acknowledge

at the right of each

neither USDA/FSA nor the United States will forgive any debt(s) as the result of the

statement.

determination in your favor. Interest on your debt will continue to accrue unless and until

Acknowledged

you fully pay your debt. USDA/FSA maintains any and all options for servicing and recovering

outstanding debt, including, but not limited to, acceleration and foreclosure, except that any

acceleration and foreclosure action is stayed during the pendency of this claim.

C. If you submit a claim under Track A and your claim is approved, you will receive a payment to reduce a portion of the tax liability you may incur from receipt of an award. This payment will be made directly to the Internal Revenue Service on your behalf. This may not pay all your tax liability. Notwithstanding this payment, you acknowledge that you are responsible for compliance with all applicable federal, state, and local tax requirements that arise as a result of any payment you receive on your claim. This includes payment of taxes for any cash payments, debt payments, or tax payments you may be awarded.

Acknowledged

D. Your failure to complete this Claim Form and/or provide any necessary documentation will

result in denial of your claim.

Acknowledged

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Page 3 of 8

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 96 of 119

CLAIM FORM

For help in completing this Form

In re Black Farmers Discrimination Litigation

call us toll-free at 1-877-810-8110

Civil Action No. 1:08-mc-0511 (PLF)

or email questions@blackfarmerscase.com

Sections 7, 8 & 9 Instructions: Complete Parts 7, 8, and 9 with information about the Claimant identified in Part 1.

7. ELECTION OF TRACK A OR TRACK B

YOU MUST SELECT EITHER TRACK A OR TRACK B. After reviewing the descriptions of Track A and Track B, check

one box to select the Track you wish to pursue. Your selection is final and cannot be changed, except that persons selecting Track

B may switch to Track A within thirty (30) days of being notified by the Claims Administrator of the number of Track B elections.

Because this decision has important consequences, you may wish to discuss your

TRACK A					

TRACK B

Complete Sections 8 & 10; Skip Section 9.		

Complete Sections 8, 9 & 10.

DESCRIPTION OF TRACK A: To be eligible for relief, you must establish the elements of

Track A by substantial evidence (a lower burden of proof than required for Track B). If you satisfy the

requirements for Track A (Section 8 below), you are eligible for a cash payment of up to $50,000 for credit

claims, regardless of the number of credit claims you have, and/or up to $3,000 for non-credit claims,

regardless of the number of non-credit claims you have; an additional payment in recognition of outstanding

options with a lawyer.

USDA Farm Service Agency (USDA/FSA) Farm Loan Program debt (a Track A Loan Award), which will be paid directly to the USDA on your behalf; and a tax payment worth 25% of the total of the cash payment and 25% of the total of the principal amount of the debt extinguished by the Track A Loan Award you receive

(a Track A Tax Award), which will be paid directly to the IRS on your behalf. These amounts are subject to

reduction, depending on the amount of funding available and the number of prevailing claims. No payments

will be made until all claims have been evaluated.

DESCRIPTION OF TRACK B: To be eligible for relief, you must establish the elements of

Track B by a preponderance of the evidence (a higher burden of proof than required for Track A), largely

through independent documentary evidence admissible under the Federal Rules of Evidence. If you satisfy

the requirements for Track B, you are eligible for a cash payment equal to the actual damages you suffered

up to $250,000. This amount is subject to reduction, depending on the amount of funding available and the

number of prevailing claims. No payments will be made until all claims have been evaluated. Under Track B,

you are not eligible for a loan award or tax award.

Section 8 Instructions: For claimants selecting TRACK A or TRACK B.

8. CLAIM INFORMATION FOR TRACK A & TRACK B To be eligible for relief, A. Are you an African-American who farmed, or attempted to farm,

you must complete

between January 1, 1981, and December 31, 1996?

Yes			

No

each and every question in this section, If Yes, describe your farming operation or how you attempted to farm by answering the following questions:

including the narrative

answers.

i. How many acres did you farm or attempt to farm?

ii. Describe the type and amount of crops or livestock you farmed or attempted to farm.

Attach additional sheets if needed.

Attach additional sheets if needed.

B. Did you own or lease, or attempt to own or lease, farm land?

Yes			

No

i. If Yes to Question B, identify the location (i.e., full address, cross street intersection, and/or legal description) of the farm land you owned or leased or attempted to own or lease which is the subject of this claim.

ii. If Yes to Question B, and the acreage you owned or leased or attempted to own or lease is different from the acreage described in Question A, describe the farm land that you owned or leased or attempted to own or lease, including the type of land, acreage, and how it is different from the farm land described in Question A.
If the acreage is the same as the acreage described in Question A, write “Same.”

www.blackfarmerscase.com

Epiq Systems (Claims Administrator), PO Box 4028, Portland, OR 97208-4028

Page 4 of 8

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 97 of 119

CLAIM FORM In re Black Farmers Discrimination Litigation Civil Action No. 1:08-mc-0511 (PLF)

For help in completing this Form call us toll-free at 1-877-810-8110 or email questions@blackfarmerscase.com

Section 8 Instructions: For claimants selecting TRACK A or TRACK B.

8. CLAIM INFORMATION FOR TRACK A & TRACK B, CONTINUED

To be eligible for C.i. Did you apply for a specific farm credit transaction(s) or a

relief, you must complete each and

non-credit benefit(s) at a USDA office between January 1, 1981, and December 31, 1996?

Yes			

No

every question in this

section, including

ii. FOR TRACK A CLAIMANTS ONLY: if you answered No to

the narrative

question C.i, did you constructively apply, i.e., attempt to apply,

Yes			

No

answers.

for a specific farm credit transaction(s) or non-credit benefit(s)

between January 1, 1981 and December 31, 1996?

If you answered Yes to either question C.i or C.ii above, identify the type of specific farm credit transaction(s) or noncredit benefit(s) for which you applied or constructively applied:

Operating Loan			

Farm Ownership Loan		

Emergency Loan

Identify

Identify

Other Credit Program			

Other Non-Credit Program

If you answered Yes to question C.ii above, provide any information that supports your claim that you attempted to apply. The type of information that would be helpful includes:

• The year you attempted to apply and the general time period within that year (e.g., late fall, March, etc.). • The type and amount of loan(s) or non-credit benefit(s) for which you attempted to apply. • How you planned to use the funds (i.e., identification of crops, equipment, acreage, etc.). • How your plans for a farm operation were consistent with farming operations in that county/area in that year.

Attach additional sheets if needed.

If you answered Yes to question C.ii, did USDA actively discourage your application(s)?

Yes			

No

Active discouragement includes statements by a USDA official that, at the time you wanted to apply, (a) there were no funds available and therefore no application would be provided; (b) there were no application forms available; or (c) USDA was not accepting or processing applications.

D. FOR CLAIMANTS WHO ANSWERED YES TO QUESTION C.i ABOVE:

Was the farm loan(s) or non-credit benefit(s) for which you applied denied,

Yes			

No

provided late, approved for a lesser amount than requested, did it include a

restrictive condition(s), or did USDA fail to provide appropriate loan service(s)?

If Yes, explain the reasons for your answer, including the type, amount and purpose of the loan or non-credit benefit applied for, the year of the application, and USDA’s response to your application.

Attach additional sheets if needed.

E. Did USDA’s treatment of your loan or non-credit benefit application(s) lead to economic loss for you?
If Yes, explain the type and amount of economic loss you suffered.
Attach additional sheets if needed.

Yes			

No

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Epiq Systems (Claims Administrator), PO Box 4028, Portland, OR 97208-4028

Page 5 of 8

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 98 of 119

CLAIM FORM

For help in completing this Form

In re Black Farmers Discrimination Litigation

call us toll-free at 1-877-810-8110

Civil Action No. 1:08-mc-0511 (PLF)

or email questions@blackfarmerscase.com

Section 8 Instructions: For claimants selecting TRACK A or TRACK B.

8. CLAIM INFORMATION FOR TRACK A & TRACK B, CONTINUED

To be eligible for relief, you must complete each and every question in this

F. Did you complain of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of you in response to your application(s)?

Yes			

No

section, including the narrative

If Yes, describe when and how you complained.

answers.

Attach additional sheets if needed.

G. FOR TRACK A CLAIMANTS ONLY: Do you have eligible outstanding USDA/FSA Farm Loan Program debt?

Yes			

No

Eligible outstanding USDA / FSA Farm Loan Program debt is debt from a loan that: (1) forms the basis of your claim; (2) was part of the same loan program as the loan that forms the basis of your claim, originated at the same time or subsequent to the loan that forms the basis of your claim but prior to January 1, 1997, and has not been the subject of an adverse administrative decision that has become final or an adverse federal or state court judgment that has become final; OR (3) has been consolidated with or restructured into a new loan.

H. FOR TRACK A CLAIMANTS ONLY: Are you seeking an additional payment to reduce eligible USDA/FSA Farm Loan Program debt?

Yes			

No

If Yes, provide as much of the following information as possible about each eligible outstanding USDA / FSA Farm Loan Program loan.

USDA / FSA Account Number

Loan Program

Loan Number

Year Loan USDA or FSA County Office Outstanding Obtained Where Loan Obtained Loan Balance

You must also complete an Authorization to Disclose Debt Information Form, which can be obtained from the Claims Administrator at 1-877-810-8110.

You may also

I.

include any other

evidence you would

like the Neutral to

consider in support

of your claim.

Provide any additional information that you believe is relevant to your claim; attach additional sheets, if needed.

Please do not send original documents. Submit photocopies, unless originals are expressly required.

Mark attachments with your name and Social Security Number (or TIN).

www.blackfarmerscase.com

Epiq Systems (Claims Administrator), PO Box 4028, Portland, OR 97208-4028

Page 6 of 8

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 99 of 119

CLAIM FORM

For help in completing this Form

In re Black Farmers Discrimination Litigation

call us toll-free at 1-877-810-8110

Civil Action No. 1:08-mc-0511 (PLF)

or email questions@blackfarmerscase.com

Section 9 Instructions:For claimants selectingTRACK B only. Do not complete this section if you selectedTRACKA;continue to section 10.

9. TRACK B
It is recommended

ADDITIONAL INSTRUCTIONS FOR TRACK B CLAIMANTS

you consult To obtain relief under Track B:

an attorney

to ensure

• You must respond to Questions A and B, below.

your evidence supporting

• For Question 8.E on page 5, you may submit expert testimony in the form of a sworn statement to support your claim of economic loss.

your claim • You must submit independent, documentary evidence admissible under the Federal

satisfies these Rules of Evidence for every Question in Sections 8 and 9 of this Claim Form, except

requirements. that for Question 8.F (complaint) and Question 9.B (similarly-situated white farmer),

you may provide a sworn written statement based on personal knowledge by an

individual who is not a member of your family.

The USDA or FSA loan application(s) and any supporting documents that form the basis of your claim are deemed admissible under the Federal Rules of Evidence when accompanied by a sworn statement that the loan application(s) and supporting documents were submitted to USDA or FSA on or about the date of the application(s). USDA or FSA documents that were provided to you in response to your loan application(s) are also deemed admissible under the Federal Rules of Evidence when accompanied by a sworn statement that you received the USDA or FSA documents in response to your loan application(s).

These questions are required for Track B.

A. Was the USDA’s treatment of you less favorable than that of a similarly situated white farmer(s)?

Yes			

No

If Yes: 1) identify the similarly situated white farmer(s); 2) explain how you are similarly situated with respect to your farm or ranch operations; and 3) how he or she was treated more favorably by USDA.

B. If your claim under Track B is approved, attorney’s fees, costs, and expenses will be paid automatically to your attorney as a percentage of your award. The amount of this percentage is negotiated between you and your attorney, but may not exceed [Track B Fee Cap]. The payment of a fee under Track B is contingent upon the success of your claim.

Indicate the fee percentage that you have negotiated with your attorney that will be paid to your attorney if your claim is successful.

%

www.blackfarmerscase.com

Epiq Systems (Claims Administrator), PO Box 4028, Portland, OR 97208-4028

Page 7 of 8

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 100 of 119

CLAIM FORM

For help in completing this Form

In re Black Farmers Discrimination Litigation

call us toll-free at 1-877-810-8110

Civil Action No. 1:08-mc-0511 (PLF)

or email questions@blackfarmerscase.com

Section 10 Instructions:This section is required for all claimants.

10. CLAIMANT DECLARATION & SUBSTITUTE W-9

Review the

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that

Declaration & (please check all applicable boxes): Substitute W-9,

then sign and

The answers made in this Claim Form are true and correct and all enclosures are

date below in the

true and correct copies.

space provided.

The number provided in Section 1: Claimant Information is the correct Social

If your claim

Security Number or Taxpayer Identification Number for this claimant.

is meritorious but you fail to complete the Substitute W-9, your award may

The claimant is NOT subject to backup withholding because: (a) the claimant is exempt from backup withholding, or (b) the claimant has not been notified by the Internal Revenue Service (IRS) that the claimant is subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified the claimant that he or she is no longer subject to backup withholding.

be subject to backup withholding.

The claimant is a U.S. citizen or other U.S. person.
The Internal Revenue Service does not require your consent to any provision of this document other than the certifications required to

avoid backup withholding.

Signature of Claimant or Submitter						

Date Signed

Declaration of submitting attorney, if applicable.

I swear, under penalty of perjury, that to the best of my knowledge, information, and belief formed after an inquiry reasonable under the circumstances, this claim is supported by existing law and the factual contentions have evidentiary support.

Signature of Attorney							

Date Signed

Reminder Checklist

For Track A, complete Sections 1 – 8 and 10. For Track B, complete Sections 1 – 10.

Depending on your answers, include these documents:

Section 4: Proof of Legal Representation (for deceased claimants or those unable to submit a claim due

to mental or physical limitation);

Section 4: Copy of Death Certificate for Deceased Claimant;

Section 8, Question H: Completed Authorization to Disclose Debt Information Form; and/or

Section 9,Track B Only: Independent, documentary evidence and, where permitted, sworn statements.

Submit this form by [Claim Deadline] to:

For Office Use Only

Claims Administrator PO Box 4028 Portland, OR 97208-4028

You may enclose additional sheets with any information or evidence you believe is relevant and would like the Neutral to consider in support of your claim.

Claim Identification Number

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Epiq Systems (Claims Administrator), PO Box 4028, Portland, OR 97208-4028

Page 8 of 8

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 101 of 119
EXHIBIT D

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 102 of 119
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

AUTHORIZATION TO DISCLOSE DEBT INFORMATION FORM

PART I. REQUEST TO UNITED STATES DEPARTMENT OF AGRICULTURE, FARM SERVICE AGENCY (USDA/FSA)

Claimant’s Last Name:

Claimant’s First Name:

Claimant’s Middle Name:

Claimant’s Suffix:

Claimant’s Full Address (including zip code):

Claimant’s Social Security/Taxpayer I.D. Number:

Address or Other Description of Farm Property that is the Subject of the Claim

Claimant’s USDA/FSA Account Number(s):

I hereby request and authorize USDA/FSA to provide the information about my outstanding USDA/FSA Farm Loan Program loans to the Claims Administrator in In re Black Farmers Discrimination Litigation. I acknowledge and understand that USDA/FSA will not reduce, discharge, or forgive my debt and that interest on my debt will continue to accrue unless and until I have paid the debt in full.

Claimant’s Signature: _____________________________________________________________ Date: ____________________________

PART II. USDA/FSA RESPONSE TO CLAIMS ADMINISTRATOR

This Response is as of: ________________

PRINCIPAL

LOAN #

BALANCE

INTEREST BALANCE

TOTAL

DAILY INTEREST ACCRUAL

USDA/FSA Authorizing Official Signature:_____________________________________

Date Prepared: __________ Page ___ of ____

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 103 of 119
EXHIBIT E

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 104 of 119
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

Amount Paid

QUARTERLY DISBURSEMENT REPORTING FORM
For Q___ of 20____ Page ___ of _____

Date Paid

Payee Name & Address

Purpose of Payment

Track A/Track B (if applicable)

(Attach additional pages as necessary)

Quarterly Disbursement Reporting Form – Page 1

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 105 of 119

Total number of payments made during current reporting quarter:
Total amount of payments made during current reporting quarter:
Total number of payments made to date: (inclusive of current and all prior reporting quarters)
Total amount of payments made to date: (inclusive of current and all prior reporting quarters)
Total number of Track A Awards made during current reporting quarter:
Total amount of Track A Awards made during current reporting quarter:
Total number of Track A Awards made to date: (inclusive of current and all prior reporting quarters)
Total amount of Track A Awards made to date: (inclusive of current and all prior reporting quarters)
Total number of Track B Awards during current reporting quarter:
Total amount of Track B Awards made during current reporting quarter:
Total number of Track B Awards made to date: (inclusive of current and all prior reporting quarters)
Total amount of Track B Awards made to date: (inclusive of current and all prior reporting quarters)

__________________________ $_________________________ __________________________
$_________________________
__________________________ $_________________________ __________________________
$_________________________
__________________________ $_________________________ __________________________
$_________________________

I, _____________________________, certify that the above content is true, complete, and accurate.

____________________________ Signature of Class Counsel

_____________ Date

Quarterly Disbursement Reporting Form – Page 2

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 106 of 119
EXHIBIT F

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 107 of 119
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

YOUR CLAIM PACKAGE IS NOT COMPLETE
YOU MUST RESPOND WITHIN 30 DAYS OF THE POSTMARK ON THIS MAILING

PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

YOU ARE RECEIVING THIS NOTICE BECAUSE THE CLAIM PACKAGE YOU SUBMITTED IS NOT COMPLETE
AND WE NEED ADDITIONAL INFORMATION
(SEE PARTS II, III, IV, and V)

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 108 of 119

_______________________________ ______________________ ____________________________________

Claimant’s Name (First, Middle, Last) Claimant ID #

Claimant’s Social Security/Taxpayer I.D. #

PART II. ELEMENTS OF A COMPLETE CLAIM PACKAGE

To be eligible for relief, a Claimant must submit:
1) A completed Claim Form.
2) For a Claimant who selects Track A and seeks a payment in recognition of outstanding USDA/FSA Farm Loan Program debt, a completed Authorization to Disclose Debt Information Form.
3) For a Claimant with an attorney, a declaration by the Claimant’s attorney attesting to the attorney’s good faith belief in the truth of the factual basis for the claim.
4) For a Claimant who is deceased, (a) a death certificate and (b) either (i) proof of legal representation, or (ii) a sworn statement describing why the submitting individual believes he or she will be appointed the legal representative of the Claimant’s estate.
5) For a Claimant unable to submit a claim on his or her own behalf due to a physical or mental limitation, (a) proof of legal representation or (b) a sworn statement describing why the Claimant is unable to submit a claim on his or her own behalf and why the submitting individual asserts a right to do so on the Claimant’s behalf.

PART III. DEADLINE FOR SUBMISSION OF A COMPLETE CLAIM PACKAGE
To be eligible for relief, a Claimant must submit a Complete Claim Package by [Claims Deadline]. The submission date is the date of postmark if the Claim Package is sent via first-class mail, the date of deposit if sent by courier or overnight delivery, and the date of transmission if sent electronically.
PART IV. PROBLEM(S) WITH YOUR CLAIM PACKAGE (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)
We have identified the following problem(s) with your claim package (check all that apply):
You did not submit a Claim Form.
You did not sign your Claim Form.
You did not answer the following questions on the Claim Form: __________________________
You are a Track A Claimant seeking a payment in recognition of outstanding USDA/FSA Farm Loan Program debt, and you did not submit a completed Authorization to Disclose Debt Information Form.

Your Claim Package Is Not Complete Form – Page 2

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 109 of 119

_______________________________ ______________________ ____________________________________

Claimant’s Name (First, Middle, Last) Claimant ID #

Claimant’s Social Security/Taxpayer I.D. #

You have an attorney but your submission did not include a declaration by your attorney attesting to the attorney’s good faith belief in the truth of the factual basis for your claim.
You are submitting a claim on behalf of a Claimant who is deceased, and you did not submit a death certificate.
You are submitting a claim on behalf of a Claimant who is deceased, and you did not submit proof of legal representation or a sworn statement describing why you believe you will be appointed the legal representative of the Claimant’s estate.
You are submitting a claim on behalf of a Claimant who is unable to submit a claim on his or her own behalf due to a physical or mental limitation, and you did not submit (a) proof of legal representation or (b) a sworn statement describing why the Claimant is unable to submit a claim on his or her own behalf and why you assert a right to do so on the Claimant’s behalf.
Based on the information included in your Claim Package, we were unable to determine whether your claim was submitted before the Claims Deadline. Please submit additional evidence that shows:
____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________
Based on the information included in your Claim Package, we were unable to determine whether your Claim Package is complete. Please submit additional evidence that shows:
_____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________
PART V. DEADLINE TO RE-SUBMIT YOUR CLAIM PACKAGE
From the date on the postmark of this Form, you have 30 days to re-submit your claim package. Your resubmission must be postmarked no later than 30 days after the postmark on this Form. Your failure to submit a Complete Claims Package within 30 days will result in denial of your claim. You are encouraged to consult an attorney to assist you in re-submitting your claim.
QUESTIONS
If you have any questions, you may contact Class Counsel at [Phone].
Your Claim Package Is Not Complete Form – Page 3

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EXHIBIT G

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 111 of 119
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

YOU HAVE NOT SUBMITTED YOUR CLAIM ON TIME

PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

YOUR CLAIM IS DENIED. (SEE PART II)
THIS DECISION IS FINAL. IT IS NOT REVIEWABLE BY THE CLAIMS ADMINISTRATOR, THE TRACK A NEUTRAL, THE TRACK B NEUTRAL, THE COURT, OR ANY OTHER PARTY OR
BODY, JUDICIAL OR OTHERWISE.

Your Have Not Submitted Your Claim On Time Form – Page 1

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 112 of 119

_______________________________ ______________________ ____________________________________

Claimant’s Name (First, Middle, Last) Claimant ID #

Claimant’s Social Security/Taxpayer I.D. #

PART II. EXPLANATION OF DENIED CLAIMS (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

Your claim is DENIED because you failed to submit your claim on time. Your claim was submitted on ___________________________. All claims had to be submitted by [Claims Deadline] to be eligible for relief. The date of submission is the date of postmark if the Claim Package is sent via first-class mail, the date of deposit if sent by courier or overnight delivery, and the date of transmission if sent electronically.

IMPACT ON OUTSTANDING LOAN OBLIGATIONS: Please note that if you are not current on loan payments you owe the USDA, the Secretary of Agriculture may, in view of the denial of your claim, proceed immediately with any loan acceleration or foreclosure proceedings he believes are appropriate.

QUESTIONS
If you have any questions, you may contact Class Counsel at [Phone]

Your Have Not Submitted Your Claim On Time Form – Page 2

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EXHIBIT H

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SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

YOU ARE NOT A CLASS MEMBER

PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

YOUR CLAIM IS DENIED. (SEE PART II)
THIS DECISION IS FINAL. IT IS NOT REVIEWABLE BY THE CLAIMS ADMINISTRATOR, THE TRACK A NEUTRAL, THE TRACK B NEUTRAL, THE COURT, OR ANY OTHER PARTY OR
BODY, JUDICIAL OR OTHERWISE.

You Are Not A Class Member Form – Page 1

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 115 of 119

_______________________________ ______________________ ____________________________________

Claimant’s Name (First, Middle, Last) Claimant ID #

Claimant’s Social Security/Taxpayer I.D. #

PART II. EXPLANATION OF DENIED CLAIMS (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

Your claim is DENIED because (check all that apply):
You failed to prove that you submitted a Late-Filing Request pursuant to Section 5(g) of the Pigford Consent Decree before June 19, 2008.
You failed to prove that you have not already obtained a determination on the merits of your discrimination complaint.
IMPACT ON OUTSTANDING LOAN OBLIGATIONS: Please note that if you are not current on loan payments you owe the USDA, the Secretary of Agriculture may, in view of the denial of your claim, proceed immediately with any loan acceleration or foreclosure proceedings he believes are appropriate.

QUESTIONS

If you have any questions, you may contact Class Counsel at [Phone].

You Are Not A Class Member Form – Page 2

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EXHIBIT I

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 117 of 119
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

QUARTERLY CLAIM DETERMINATION REPORTING FORM

Claimant’s Name (Last, First, Middle, Suffix)

Claimant’s Mailing Address (Street, City, Claimant’s Social

State, Zip)

Security/Taxpayer I.D. Number

Claimant’s USDA/FSA Did Claimant Prevail? Account Number(s), if (Yes/No) applicable

Signature of Claims Administrator: ______________________________

Date Prepared:

Page __ of __

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EXHIBIT J

Case 1:08-mc-00511-PLF Document 161-3 Filed 03/30/11 Page 119 of 119
Claims Administrator, In re Black Farmers Discrimination Litigation
[Date] [Claimant’s Name] [Claimant’s ID Number] [Claimant’s Address] RE: In re Black Farmers Discrimination Litigation: Claim Status Dear [Mr./Mrs.] [Claimant’s Last Name]:
Some time ago, you submitted a Track [A/B] claim to participate in the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-0511 (D.D.C.). A neutral party has reviewed your claim materials and determined that your claim is APPROVED.
You are eligible to receive a payment for your successful claim. However, at this time we do not know the amount of the payment you will receive, and we will not know that information until all claims in this case have been determined and final award amounts for all claims have been calculated. No payments will be made under the Settlement Agreement until all claims have been decided.
Please be patient. We will be back in touch with you when the claims process has ended and we are ready to issue payments.
If you have any questions, please feel free to contact us at 1-877-810-8110.
Sincerely,
_______________________ Claims Administrator
Epiq Systems (Claims Administrator), PO Box 4028, Portland, OR 97208-4028 www.websiteurl.com

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 1 of 31
EXHIBIT 3
to the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of a Rule 23(b)(1)(B) Class, And for Other Purposes
In re Black Farmers Discrimination Litigation Case No. 08-mc-0511-PLF (D.D.C.)
Pigford Consent Decree

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 2 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TIMOTHY C. PIGFORD, et al.,
Plaintiffs,
v.
DAN GLICKMAN, SECRETARY, THE UNITED STATES DEPARTMENT OF AGRICULTURE,
Defendant.

) Civil Action No. ) 97-1978 (PLF)
)
1.

CECIL BREWINGTON, et al., Plaintiffs,
v. DANIEL R. GLICKMAN,
Defendant.

1 1
) Civil Action No. ) 98-1693 (PLF)
) )

CONSENT DECREE WHEREAS the parties desire to resolve amicably all the claims raised in these suits, including the plaintiffsf claims under the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691, et seq.,
and the Administrative Procedure Act ("APA"), 5 U.S .C. 5 551, et
seq.; and WHEREAS the parties have agreed upon mutually satisfactory
terms for the complete resolution of all the claims that have, or could have, been asserted by the plaintiffs in this litigation; and

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 3 of 31
WHEREAS, in light of the remedial purposes of this Consent Decree, the parties intend that it be liberally construed to effectuate those purposes in a manner that is consistent with law; and
WHEREAS the parties have entered into this Consent Decree for the purpose of ensuring that in their dealings with USDA, all class members receive full and fair treatment that is the same as the treatment accorded to similarly situated white persons;
NOW THEREFORE, the plaintiffs and the defendant, Dan Glickman, Secretary of the United States Department of Agriculture ("USDA"), hereby consent to the entry of this decree with the following terms:
1. Definitions The following terms shall have the following meanings for purposes of this Consent Decree. (a) The term "adjudicator" shall mean (i) the person or persons who is/are assigned by the facilitator to undertake the initial review of, and where appropriate make recommended decision on Track A claims under ¶ 9, below; and (ii) JAMS-Endispute, Inc., which shall make the final decision in all Track A claims and resolve issues of tolling under ¶ 6, below. (b) The term "arbitrator" shall mean Michael K. Lewis of ADR Associates, and the other person or persons selected by Mr. Lewis who meet qualifications agreed upon by the parties and by

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 4 of 31
Mr. Lewis and whom Mr. Lewis assigns to decide Track B claims under ¶ 10, below.
(c) The term "claimant" shall mean any person who submits a claim package for relief under the terms of this Consent Decree.
(d) The term 'claim package" shall mean the materials sent to claimants who request them in connection with submitting a claim for relief under the provisions of this Consent Decree. The claim package will include (i) a claim sheet and election form and a Track A Adjudication claim affidavit, copies of which are attached hereto as Exhibit A; and (ii) associated documentation and instructions.
(e) The term "class counsel" shall mean Alexander J. Pires, Jr. and Phillip L. Fraas, Lead Counsel for members of the class defined in ¶ 2(a), infra. In addition, the following counsel and law firms have been acting, and will continue to act, as Of Counsel in this case: J.L. Chestnut, of Chestnut, Sanders, Sanders & Pettaway, P.C., Selma, AL. ; T. Roe Frazer of Langston, Frazer, Sweet & Freese, P.A., Jackson, MS.; Hubbard Saunders, IV, of The Terney Firm, Jackson, MS.; Othello Cross, of Cross, Kearney & McKissic, Pine Bluff, AR., Gerard Lear of Speiser Krause, Arlington, VA.; and William J. Smith, Fresno, CA.
(f) The term "credit" shall mean the right granted by a creditor to a debtor to defer payment of debt or to incur debt and

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 5 of 31

defer its payment or to purchase property or services and defer

payment therefor.

(g) The term "defendant's counsel" shall mean the United

States Department of Justice.

(h) The term "discrimination complaint" shall mean a

communication from a class member directly to USDA, or to a member

of Congress, the White House, or a state, local or federal

official who forwarded the class member's communication to USDA,

asserting that USDA had discriminated against the class member on

the basis of race in connection with a federal farm credit

transaction or benefit application.

(i) The term "facilitator" shall mean the Poorman-Douglas

Corporation, which shall receive claims pursuant to this Consent

Decree and assign claims to adjudicators and arbitrators for final

resolution. The parties may, by agreement and without the Court Is

approval, assign to the facilitator such additional tasks related

to the implementation of this Consent Decree as they deem

appropriate.

( j1

The term "preponderance of the evidence" shall mean

such relevant evidence as is necessary to prove that something is

more likely true than not true.

(k) The term "priority consideration" means that an

application will be given first priority in processing, and with

respect to the availability of funds for the type of loan at issue

among all similar applications filed at the same time; provided,
4

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 6 of 31
however, that all applications to be given priority consideration will be of equal status.
(1) The term 'substantial evidence" shall mean such relevant evidence as appears in the record before the adjudicator that a reasonable person might accept as adequate to support a conclusion after taking into account other evidence in the record that fairly detracts from that conclusion. Substantial evidence is a lower standard of proof than preponderance of the evidence.
(m) The term "USDA" shall include the United States Department of Agriculture and all of its agencies, instrumentalities, agents, officers, and employees, including, but not limited to the state and county committees which administer USDA credit programs, and their staffs.
(n) The term "USDA listening session" shall mean one of the meetings of farmers and USDAfs representatives conducted by USDAfs Civil Rights Action Team between January 6, 1997 and January 24, 1997.
2. Class Definition (a) Pursuant to Fed. R. Civ. P. 23 (b)(3) the Court hereby certifies a class defined as follows: All African American farmers who (1) farmed, or attempted to farm, between January 1, 1981 and December 31, 1396; (2) applied to the united States Department of Agriculture (USDA) during that time period for participation in a federal farm credit or benefit program and who believed that they were discriminated against on the basis of race in USDA's response to that application; and (3) filed a discrimination complaint on

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 7 of 31
or before July 1, 1997, regarding USDA's treatment of such farm credit or benefit application. (b) Any putative class member who does not wish to have his claims adjudicated through the procedure established by this Consent Decree may, pursuant to Federal Rule of Civil Procedure 23(c) ( 2 ) , request to be excluded from the class. To be effective, the request must be in writing and filed with the facilitator within 120 days of the date on which this Consent Decree is entered. 3. Duties of Facilitator (a) Poorman-Douglas Corporation shall serve as the facilitator and shall perform the following functions: (i) publish the Notice of Class Settlement in the manner prescribed in ¶ 4, below; (ii) mail claim packages to claimants who request them; (iii) process completed claim packages as they are received; (iv) determine, pursuant to the terms of this Consent Decree, which claimants satisfy the class definition as contained in ¶ 2 (a); (v) transmit to adjudicators claim packages submitted by claimants who contend that they are entitled to participate in the claims process due to equitable tolling of ECOA1s statute of limitations under the particular circumstances of their claim; (vi) transmit to the adjudicator the claims packages of class members with ECOA claims who elect to proceed under Track A;

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 8 of 31
(vii) transmit to the arbitrator the claims packages of class members with ECOA claims who elect to proceed under Track B;
(viii) transmit to the adjudicator the claims packages of class members who assert only non-credit benefit claims; and
(ix) maintain and operate a toll-free telephone number to provide information to interested persons about the procedure for filing claims under this Consent Decree.
(b) The facilitator's fees and expenses shall be paid by USDA.
4. Class Notice Procedure (a) Within 10 days after the entry of the Order granting preliminary approval of this Consent Decree the facilitator shall mail a copy of the Notice of Class Certification and Proposed Class Settlement (a copy of which is attached hereto as Exhibit B) to all then-known members of the class. (b) As soon as possible after entry of the Order granting preliminary approval of this Consent Decree the facilitator shall take the following steps: (i) arrange to have 44 commercials announcing the preliminary approval of the Consent Decree and the time and place of the fairness hearing aired on the Black Entertainment Network, and 18 similar commercials on Cable News Network, during a two-week period; (ii) arrange to have one-quarter page advertisements announcing the preliminary approval of the Consent Decree and the
7

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 9 of 31
time and place of the fairness hearing placed in 27 general circulation newspapers, and 115 African-American newspapers, in an 18-state region during a two-week period; and
(iii) arrange to have a full page advertisement announcing the preliminary approval of the Consent Decree and the time and place of the fairness hearing placed in the editions of TV Guide that are distributed in an 18-state region, and a half page advertisement in the national edition of Jet Magazine.
(c) USDA shall use its best efforts to obtain the assistance of community based organizations, including those organizations that focus on African-American and/or agricultural issues, in communicating to class members and potential class members the fact that the Court has preliminarily approved this Consent Decree and the time and place of the fairness hearing.
5. Class Membership Screenins; Election by Claimant; Processinq.
(a) The facilitator shall send claim packages to claimants who request them.
(b) To be eligible to obtain relief pursuant to this Consent Decree, a claimant must complete the claim sheet and return it and any supporting documentation to the facilitator. The claimant must also provide to the facilitator evidence, in the form described below, that he filed a discrimination complaint between January 1, 1981 and July 1, 1997:

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 10 of 31
(i) a copy of the discrimination complaint the claimant filed with USDA, or a copy of a USDA document referencing the discrimination complaint; or
(ii) a declaration executed pursuant to 28 U.S.C. § 1746 by a person who is not a member of the claimantfs family and which (1) states that the declarant has first-hand knowledge that the claimant filed a discrimination complaint with USDA; and (2) describes the manner in which the discrimination complaint was filed; or
(iii) a copy of correspondence from the claimant to a member of Congress, the White House, or a state, local, or federal official averring that the claimant has been discriminated against, except that, in the event that USDA does not possess a copy of the correspondence, the claimant also shall be required to submit a declaration executed pursuant to 28 U.S.C. § 1746 by the claimant stating that he sent the correspondence to the person to whom it was addressed; or
(iv) a declaration executed pursuant to 28 U.S .C. § 1746 by a non-familial witness stating that the witness has first-hand ,knowledgethat, while attending a USDA listening session, or other meeting with a USDA official or officials, the claimant was explicitly told by a USDA official that the official would investigate that specific claimantfs oral complaint of discrimination.

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 11 of 31
(c) In order to be eligible for relief under ¶ ¶ 9 or 10, below, a claimant must submit his completed claim package to the facilitator postmarked within 180 days of the date of entry of this Consent Decree, except that a claimant whose claim is otherwise timely shall have not less than 30 days to submit a declaration pursuant to subparagraph (b)(iii), above, after being directed to do so without regard to the 180-day period.
(d) At the time a claimant who asserts an ECOA claim submits his completed claim package, he must elect whether to proceed
under Track A, see ¶ 9, below, or Track B see ¶ 10, below, except
that claimants whose claims arise exclusively under non-credit benefit programs shall be required to proceed under Track A. A class member's election under this subparagraph shall be irrevocable and exclusive.
(e) Each completed claim package must be accompanied by a certification executed by an attorney stating that the attorney has a good faith belief in the truth of the factual basis of the claim, and that the attorney has not and will not require the claimant to compensate the attorney for assisting him.
(f) Within 20 days of receiving a completed claim package the facilitator shall determine, pursuant to subparagraph (b), above, whether the claimant is a member of the class as defined by ¶ 2(a). If a claimant is determined to be a class member, the facilitator shall assign the class member a consent decree case number, refer the claim package to an adjudicator or an
10

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 12 of 31
arbitrator, as appropriate, and send a copy of the entire claim package to the class counsel and defendant's counsel along with a notice that includes the class member's name, address, telephone number, social security number, consent decree case number, and that identifies the track under which the class member is proceeding. If a claimant is found not to be a class member, the facilitator shall notify the claimant and the parties' counsel of that finding.
(g) A claimant who satisfies the definition of the class in ¶ 2 (a), above, but who fails to submit a completed claim package within 180 days of entry of this Consent Decree may petition the Court to permit him to nonetheless participate in the claims resolution procedures provided in ¶ ¶ 9 & 10, below. The Court shall grant such a petition only where the claimant demonstrates that his failure to submit a timely claim was due to extraordinary circumstances beyond his control.
6. Tollins of ECOArs Statute of Limitations. (a) In addition to the class defined herein, a person who otherwise satisfies the criteria for membership in the class defined in ¶ 2 (a), above, but who did not file a discrimination complaint until after July 1, 1997, shall be entitled to relief under this Consent Decree by demonstrating, consistent with Irwin v. United States, 498 U.S. 89 (1990), that:

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 13 of 31
(i) he has actively pursued.his judicial remedies by filing a defective pleading during the applicable statute of limitations period;
(ii) he was induced or tricked by USDArs misconduct into allowing the filing deadline for the applicable statute of limitations period to pass; or
(iii) he was prevented by other extraordinary circumstances beyond his control from filing a complaint in a timely manner, provided that excusable neglect shall not qualify as extraordinary circumstances.
(b) Within 10 days of a receiving a completed claim package from a person who did not file a discrimination claim until after July 1, 1997, the facilitator shall forward the claim to an adjudicator. The adjudicator shall then determine whether the claim is timely pursuant to subparagraphs (a)(i), (ii), or (iii), above. If the claim is found to be qualified under subparagraph (a), above, the adjudicator shall return the claim package to the facilitator, along with a written determination to that effect. The facilitator shall then process the claim pursuant to ¶ 5(f), above, and the claimant shall be eligible for the relief provided herein for class members. If the claim is found by the adjudicator to be untimely, the adjudicator shall return the claim package to the facilitator with a written determination to that effect. The facilitator shall promptly notify the claimant of the adjudicatorfs decision.
12

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7. Interim Administrative Relief Upon being advised by the facilitator that a claimant satisfies the class definition in ¶ 2(a), above, or that a claimant has met the criteria for equitable tolling under ¶ 6, above, USDA shall immediately cease all efforts to dispose of any foreclosed real property formerly owned by such person. USDA also will refrain from foreclosing on real property owned by the claimant or accelerating the claimant's loan account; however, USDA may take such action up to but not including foreclosure or acceleration that is necessary to protect its interests. USDA may resume its efforts to dispose of any such real property after a final decision in USDA's favor on the class memberfs claim pursuant to ¶ ¶ 9 or 10, below. 8. Response bv USDA to a Track A Referral Notice In any Track A case USDA may, within 60 days after receipt of the materials and notice the facilitator 1s required, pursuant to ¶ 5(f), above, to furnish to USDA with respect to persons who are determined to be class members, provide to the adjudicator assigned to the claim, and to class counsel, any information or materials that are relevant to the issues of liability and/or damages. 9. Track A - Decision bv Adjudicator (a) In cases in which a class member asserts an ECOA violation and has elected to proceed under Track A:

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(i) the adjudicator shall, within 30 days of receiving the material required to be submitted by the class member under ¶ 5, along with any material submitted by defendant pursuant to ¶ 8, above, determine on the basis of those materials whether the class member has demonstrated by substantial evidence that he was the victim of race discrimination. To satisfy this requirement, the class member must show that:
(A) he owned or leased, or attempted to own or lease, farm land;
(B) he applied for a specific credit transaction at a USDA county office during the period identified in ¶ 2(a), above;
(C) the loan was denied, provided late, approved for a lesser amount than requested, encumbered by restrictive conditions, or USDA failed to provide appropriate loan service, and such treatment was less favorable than that accorded specifically identified, similarly situated white farmers; and
(D) USDArs treatment of the loan application led to economic damage to the class member.
(ii) The adjudicator's decision shall be in a format to be agreed upon by the class counsel and defendant's counsel, and shall include a statement of the reasons upon which the decision is based.
(iii) In any case in which the adjudicator decides in a class member's favor, the following relief shall be provided to the class member:
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(A) USDA shall discharge all of the class member's outstanding debt to USDA that was incurred under, or affected by, the program(s) that was/were the subject of the ECOA claim(s) resolved in the class member's favor by the adjudicator. The discharge of such outstanding debt shall not adversely affect the claimant's eligibility for future participation in any USDA loan or loan servicing program;
(B) The class member shall receive a cash payment of $50,000 that shall be paid from the fund described in 31 U.S.C. § 1304 ( "the Judgment Fund") ;
(C) an additional payment equal to 25% of the sum of the payment made under subparagraph (B), above, and the principal amount of the debt forgiven under subparagraph (A), above, shall be made by electronic means directly from the Judgment Fund to the Internal Revenue Service as partial payment of the taxes owed by the class member on the amounts paid or forgiven pursuant to those provisions;
(D) The injunctive relief made available pursuant to ¶ 11, below; and
(E) The immediate termination of any foreclosure proceedings that USDA has initiated against any of the class member's real property in connection with the ECOA claim(s) resolved in the class member's favor by the adjudicator; and the return of any USDA inventory property that formerly was owned by the class

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member but which was foreclosed in connection with the ECOA claim(s) resolved in the class member's favor by the adjudicator.
(iv) If the adjudicator determines that a class member's claim is not supported by substantial evidence, the class member shall receive no relief under this Consent Decree.
(v) The decision of the adjudicator shall be final, except as provided by ¶ 12 (b)(iii), below. The parties hereby agree to forever waive their right to seek review in any court or before any tribunal of the decision of the adjudicator with respect to any claim that is, or could have been decided by the adjudicator.
(b) In cases in which a class member asserts only non-credit claims under a USDA benefit program: '
(i) the adjudicator shall, within 30 days of receiving the material required to be submitted by the class member under ¶ 5, along with any material submitted by defendant pursuant to ¶ 8, above, determine on the basis of those materials whether the class member has demonstrated by substantial evidence that he was the victim of race discrimination. To satisfy this requirement, the class member must show that:
(A) he applied for a specific non-credit benefit program at a USDA county office during the period identified in ¶ 2(a), above; and
(B) his application was denied or approved for a lesser amount than requested, and that such treatment was different than the treatment received by specifically identified, similarly
16

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situated white farmers who applied for the same non-credit benefit. *
(ii) The adjudicator's decision shall be in a format to be agreed upon by the parties, and shall include a statement of the reasons upon which the decision is based.
(iii) In any case in which the adjudicator decides in a class member's favor, the following relief shall be provided to the class members:
(A) USDA shall pay to the class member the amount of the benefit wrongly denied, but only to the extent that funds that may lawfully be used for that purpose are then available; and
(B) The injunctive relief made available pursuant to
It11(c)- (d), below.
(iv) If the adjudicator determines that a class member's claim is not supported by substantial evidence, the class member shall receive no relief under this Consent Decree.
(v) The decision of the adjudicator shall be final, except
as provided by YI 12(b)(iii), below. The parties hereby agree to
forever waive their right to seek review in any court or before any tribunal of the decision of the adjudicator with respect to any claim that is, or could have been decided by the adjudicator.
(c) The adjudicator's fees and expenses shall be paid by USDA.

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10. Track B - Arbitration (a) Within 10 days of receiving the completed claim package of a class member who has elected to proceed under Track B, the arbitrator shall notify the class member and defendant of the date on which an evidentiary hearing on the class member's claim will be held. The hearing shall be scheduled for a date that is not less than 120 days, nor more than 150 days, from the date on which the hearing notice is sent. (b) At least 90 days prior to the hearing described in subparagraph (a), above, USDA and the class member shall file with the arbitrator and serve on each other a list of the witnesses they intend to call at the hearing along with a statement describing in detail the testimony that each witness is expected to provide, and a copy of all exhibits that each side intends to introduce at such hearing. The parties shall be required to produce for a deposition, and for cross examination at the arbitration hearing, any person they identify as a witness pursuant to subparagraph (a), above. (c) Each side shall be entitled to depose any person listed as a witness by his opponent pursuant to subparagraph (b), above. (d) Discovery shall be completed not later than 45 days before the date of the hearing described in subparagraph (a), above. (e) Not less than 21 days prior to commencement of the hearing described in subparagraph (a), above, each side shall (i)
18

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notify the other of the names of those witnesses whom they intend to cross-examine at the hearing; and (ii) file with the arbitrator memoranda addressing the legal and factual issues presented by the class member's claim.
(f) The hearing shall be conducted in accordance with the . Federal Rules of Evidence. All direct testimony shall be introduced in writing and shall be filed with the arbitrator and served on the opposing side at least 30 days in advance of the hearing. The hearing shall be limited in duration to eight hours, with each side to have up to four hours within which to cross examine his opponent's witnesses, and to present his legal arguments.
(g) The arbitrator shall issue a written decision 30-60 days after the date of the hearing. If the arbitrator determines that the class member has demonstrated by a preponderance of the evidence that he was the victim of racial discrimination and that he suffered damages therefrom, the class member shall be provided the following relief:
(i) actual damages as provided by ECOA, 15 U.S.C. § 1691e(a) to be paid from the Judgment Fund;
(ii) USDA shall discharge all of the class member's outstanding debt to the Farm Service Agency that was incurred under, or affected by, the program(s) that were the subject of the claim(s) resolved in the class member's favor by the arbitrator. The discharge of such outstanding debt shall not adversely affect
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the claimant's eligibility for future participation in any USDA loan or loan servicing program;
(iii) The injunctive relief made available pursuant to ¶ 11, below; and
(iv) The immediate termination of any foreclosure proceedings that have been initiated against any of the class member's real property in connection with the ECOA claim(s) resolved in the class member's favor by the arbitrator, and the return of any USDA inventory property that was formerly owned by the class member but which was foreclosed in connection with the ECOA claim(s) resolved in the class member's favor by the arbitrator.
(h) If the arbitrator rules in the defendantfs favor, the class member shall receive no relief under this Consent Decree.
(i) The decision of the arbitrator shall be final, except as provided by ¶ 12 (b)(iii), below. The parties hereby agree to forever waive their right to seek review in any court or before any tribunal of the decision of the arbitrator with respect to any claim that is, or could have been decided, by the arbitrator.
(k). The arbitrator's fees and expenses shall be paid by
USDA. 11. Class-Wide Iniunctive Relief (a) USDA will provide each class member who prevails under
¶ ¶ 9(a) or 10 with priority consideration, on a one-time basis, for the purchase, lease, or other acquisition of inventory property to the extent permitted by law. A class member must
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exercise his right to the relief provided in the preceding sentence in writing and within 5 years of the date this order.
(b) USDA will provide each class member who prevails under ¶ ¶ 9(a) or 10 with priority consideration for one direct farm ownership loan and one farm operating loan at any time up to five years after the date of this Order. A class member must notify USDA in writing that he is exercising his right under this agreement to priority consideration in order to receive such consideration.
(c) Any application for a farm ownership or operating loan, or for inventory property submitted within five years of the date of this Consent Decree by any class member who prevails under ¶ ¶ 9 or 10, will be viewed in a light most favorable to the class member, and the amount and terms of any loan will be the most favorable permitted by law and USDA regulations. Nothing in the preceding sentence shall be construed to affect in any way the eligibility criteria for participation in any USDA loan program, except that outstanding debt discharged pursuant to
¶ ¶ 9 (a)(iii)(A) or 10 (g)(ii), above, shall not adversely affect
the claimant's eligibility for future participation in any USDA loan or loan servicing program.
(d) In conjunction with any application for a farm ownership or operating loan or for inventory property submitted by a class member who prevails under ¶ ¶ 9 or 10, above, USDA shall, at the request of such class member provide the class member with
21

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reasonable technical assistance and service, including the assistance of qualified USDA employees who are acceptable to the class member, in connection with the class member's preparation and submission of any such application.
12. Monitor (a) From a list of three persons submitted to it jointly by the parties, or, if after good faith negotiations they cannot agree, two persons submitted by plaintiffs and two persons submitted by defendant, the Court shall appoint an independent Monitor who shall report directly to the Secretary of Agriculture. The Monitor shall remain in existence for a period of 5 years and shall not be removed except upon good cause. The Monitor's fees and expenses shall be paid by USDA. (b) The Monitor shall: (i) Make periodic written reports (not less than every six months) to the Court, the Secretary, class counsel, and defendant's counsel on the good faith implementation of this Consent Decree; (ii) Attempt to resolve any problems that any class member may have with respect to any aspect of this Consent Decree; (iii) Direct the facilitator, adjudicator, or arbitrator to reexamine a claim where the Monitor determines that a clear and manifest error has occurred in the screening, adjudication, or arbitration of the claim and has resulted or is likely to result in a fundamental miscarriage of justice; and
22

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(iv) Be available to class members and the public through a toll-free telephone number in order to facilitate the lodging of any consent decree complaints and to expedite their resolution.
(c) If the Monitor is unable within 30 days to resolve a
problem brought to his attention pursuant to subparagraph (ii),
above, he may file a report with the parties' counsel who may, in turn, seek enforcement of this Consent Decree pursuant to ¶ 13, below.
13. Enforcement Procedures Before seeking any order by the Court concerning the alleged violation of any provision of this Consent Decree, the parties must comply with the following procedures: (a) The person seeking enforcement of a provision of this Consent Decree shall serve on his opponent a written notice that describes with particularity the term(s) of the Consent Decree that are alleged to have been violated, the specific errors or omissions upon which the alleged violation is based, and the corrective action sought. The person alleging the violation shall not inform the Court of his allegation at that time. (b) The parties shall make their best efforts to resolve the matter in dispute without the Courtrs involvement. If requested to do so, the movant shall provide to his opponent any information and materials available to the movant that support the violation alleged in the notice.

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(c) The person who served the notice of violation pursuant to subparagraph (a), above, may not move for enforcement of this Consent Decree until at least 45 days after the date on which he served the notice.
14. Attorney's Fees (a) Class counsel (for themselves and all Of-Counsel) shall be entitled to reasonable attorney's fees and costs under ECOA, 15 U.S.C. § 1691e(d), and to reasonable attorney's fees, costs, and expenses under the APA, 28 U.S.C. § 2412 (d) (as appropriate), that are generated in connection with the filing of this action and the implementation of this Consent Decree. Defendant reserves the right to challenge any and all aspects of class counsel's application for fees, costs, and/or expenses. (b) Recognizing the fees, costs, and/or expenses already incurred, and given the anticipated fees, costs, and/or expenses to be incurred by class counsel in the implementation of this Consent Decree, defendant will make a one-time payment to class counsel of $1,000,000 as a credit toward class counsel's application for attorney's fees, costs, and/or expenses. The payment shall be made to class counsel and of counsel (payable to Alexander J. Pires, Jr. and Phillip L. Fraas) within 20 days of the date on which this Consent Decree is entered by the Court. This one-time payment shall be credited against any ultimate award or negotiated settlement of fees, costs, and expenses, and to the extent any such ultimate award or settlement is less than this
24

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one-time payment, class counsel shall refund to defendant the entire amount by which this one-time payment exceeds the award or settlement amount.
(c) The provision of attorney's fees, costs, and/or expenses in this Consent Decree is by agreement of the parties and shall not be cited a precedent in any other case.
15. Partiesf Respective Responsibilities No party to this Consent Decree is responsible for the performance, actions, or obligations of any other party to this Consent Decree. 16. Fairness Hearinq (a) Upon the parties' execution of this Consent Decree, the parties shall transmit the Decree to the Court for preliminary approval; request that the Court schedule a fairness hearing on the Consent Decree; and request that the Court, upon issuance of an order granting preliminary approval of this Decree, issue an order setting aside the dates currently scheduled for trial and staying this litigation. (b) Within 5 days of the execution of this Consent Decree by class counsel and defendant's counsel, the Notice of Class settlement provided for in ¶ 4, above, containing, inter alia, a notice of the fairness hearing on this Consent Decree shall be sent to all known, potential members of the class. The fairness hearing will be held at 10:OO AM on March 2, 1999, in Courtroom 20 of the E. Barrett Pettyman United States Courthouse at 3rd St. and
25

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Constitution Ave., N.W., Washington, D.C. Any objections to the entry of this Consent Decree shall be filed not later than February 15, 1999.
17. Final Judqment If, after the fairness hearing, the Court approves this Consent Decree as fair, reasonable, and adequate, a Final Judgment, the entry of which shall be a condition precedent to any obligation of any party under this Consent Decree, shall be entered dismissing with prejudice, pursuant to the terms of this Consent Decree and Rule 41 (a)(1)(ii) of the Federal Rules of Civil Procedure, all claims in the litigation. 18. Releases As provided by the ordinary standards governing the preclusive effects of consent decrees entered in class actions, all members of the class who do not opt out of this Consent Decree pursuant to ¶ 2(b), above, and their heirs, administrators,
successors, or assigns (together, the "Releasers"), hereby release
and forever discharge the defendant and his administrators or successors, and any department, agency, or establishment of the defendant, and any officers, employees, agents, or successors of any such department, agency, or establishment (together, the "Releasees") from -- and are hereby themselves forever barred and
precluded from prosecuting -- any and all claims and/or causes of
action which have been asserted in the Seventh Amended Complaint, or could have been asserted in that complaint at the time it was
2 6

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filed, on behalf of this class, by reason of, or with respect to, or in connection with, or which arise out of, any matters alleged in the complaint which the Releasors, or any of them, have against the Releasees, or any of them. It also is expressly understood that any class-wide claims of race-based discrimination in USDArs credit programs by members of the class defined in ¶ 2(a), above are barred unless the operative facts giving rise thereto did not occur prior to the entry of this Decree.
19. Defendant's Dutv Consistent With Law and Resulations Nothing contained in this Consent Decree or in the Final Judgment shall impose on the defendant any duty, obligation or requirement, the performance of which would be inconsistent with federal statutes or federal regulations in effect at the time of such performance. 20. No Admission of Liabilitv Neither this Consent Decree nor any order approving this Consent Decree is or shall be construed as an admission by the defendant of the truth of any allegation or the validity of any claim asserted in the complaint, or of the defendant's liability therefor, nor as a concession or an admission of any fault or omission of any act or failure to act, or of any statement, written document, or report heretofore issued, filed or made by the defendant, nor shall this Consent Decree nor any confidential papers related hereto and created for settlement purposes only, nor any of the terms of either, be offered or received as evidence
27

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of discrimination in any civil, criminal, or administrative action or proceeding, nor shall they be construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of the defendant, nor as an admission by any party to this Consent Decree that the consideration to be given hereunder represents the relief which could be recovered after trial. However, nothing herein shall be construed to preclude the use of this Consent Decree in order to effectuate the consummation, enforcement, or modification of its terms.
21. No Effect if Default Subject to the terms of ¶ 17, above, and following entry by the Court of Final Judgment, no default by any person or party to this Consent Decree in the performance of any of the covenants or obligations under this Consent Decree, or any judgment or order entered in connection therewith, shall affect the dismissal of the complaint, the preclusion of prosecution of actions, the discharge and release of the defendant, or the judgment entered approving these provisions. Nothing in the preceding sentence shall be construed to affect the Court's jurisdiction to enforce the Consent Decree on a motion for contempt filed in accordance with ¶ 13. 22. Effect of Consent Decree if Not Approved This Consent Decree shall not become binding if it fails to be approved by the Court or if for any reason it is rendered

Case 1:08-mc-00511-PLF Document 161-4 Filed 03/30/11 Page 30 of 31
ineffective in any judicial proceeding before initially taking effect. Should it fail to become binding, this Consent Decree shall become null and void and shall have no further force and effect, except for the obligations of the parties under this paragraph. Further, in that event: this Consent Decree; all negotiations in connection herewith; all internal, private discussions among the Department of Justice and/or USDA conducted in furtherance of the settlement process to determine the advisability of approving this Consent Decree; and all statements made by the parties at, or submitted to the Court during, the fairness hearing shall be without prejudice to any person or party to this Consent Decree, and shall not be deemed or construed to be an admission by any party to this Consent Decree of any fact, matter, or proposition.
23. Entire Terms of Asreement The terms of this Consent Decree constitute the entire agreement of the parties, and no statement, remark, agreement, or understanding, oral or written, which is not contained herein, shall be recognized or enforced. 24. Authoritv of Class Counsel Class counsel who are signatories hereto hereby represent, warrant, and guarantee that such counsel are duly authorized to execute this Consent Decree on behalf of the plaintiffs, the members of the plaintiff class, and all Of-Counsel for the plaintiffs.
2 9

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25. Dutv to Defend Decree

The parties to this Consent Decree shall employ their best

efforts to defend this Consent Decree against any challenges to

this Consent Decree, in any forum.

Consented to:

ALEXANDER J. PIRES, Jr.
Conlon, Frantz, Phelan, Pires & Leavy
1818 N. St., N.W. Washington, D.C. 20036 (202) 331-7050

DAVID W. OGDEN Acting Assistant Attorney General
PHILIP D. BARTZ Deputy Assistant Attorney
General
DENNIS G. LINDER Civil Division

PHILLIP L. FRAAS Tuttle, Taylor & Heron 1025 Thomas Jefferson St., N.W. Washington, D.C. 20007 (202) 342-1300
Of Counsel: J.L. Chestnut Othello Cross T. Roe Frazer Gerald R. Lear Hubbard I Sanders, IV Willie Smith

MICHAEL SITCOV CAROLINE LEWIS WOLVERTON DANIEL E. BENSING CARLOTTA WELLS Department of Justice Civil Division 901 E Street, N.W. Washington, D.C. 20004 (202)514-1944

SO ORDERED.

DATE :

PAUL L. FRIEDMAN United States District Judge

Case 1:08-mc-00511-PLF Document 161-5 Filed 03/30/11 Page 1 of 3
EXHIBIT 4
to the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of a Rule 23(b)(1)(B) Class, And for Other Purposes
In re Black Farmers Discrimination Litigation Case No. 08-mc-0511-PLF (D.D.C.)
Declaration of Richard Bithell

Case 1:08-mc-00511-PLF Document 161-5 Filed 03/30/11 Page 2 of 3

Case 1:08-mc-00511-PLF Document 161-5 Filed 03/30/11 Page 3 of 3

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 1 of 151
EXHIBIT 5
to the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of a Rule 23(b)(1)(B) Class, And for Other Purposes
In re Black Farmers Discrimination Litigation Case No. 08-mc-0511-PLF (D.D.C.)
Declaration of Katherine Kinsella (Proposed Notice
Provider) and Notice Materials

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 2 of 151

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

)

This document relates to:

)

)

ALL CASES

)

)

Misc. No. 08-mc-0511 (PLF)

DECLARATION OF KATHERINE KINSELLA I, Katherine Kinsella hereby declare as follows:

1. I am President of Kinsella Media, LLC (“KM”), an advertising and legal notification firm in

Washington, D.C. specializing in the design and implementation of class action and

bankruptcy notification programs to reach unidentified putative class members primarily in

consumer and mass tort litigation. My business address is 2120 L Street, NW, Suite 860,

Washington, D.C. 20037. My telephone number is (202) 686-4111.

2. I submit this declaration at the request of Plaintiffs’ Counsel in connection with In re Black

Famers Discrimination Litigation pending in the U.S. District Court for the District of

Columbia.

3. This declaration is based upon my personal knowledge and upon information provided by

Plaintiffs’ Counsel, my associates, and staff. The information is of a type reasonably relied

upon in the fields of advertising, media and communications.

4. KM has developed and directed some of the largest and most complex national notification

programs in the country. The scope of the firm’s work includes notification programs in

antitrust, bankruptcy, consumer fraud, mass tort, and product liability litigation. Specific

cases have involved, among others, asbestos, breast implants, home siding and roofing

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 3 of 151

products, infant formula, pharmaceuticals, polybutylene plumbing, tobacco, and Holocaust

claims. The firm has developed or consulted on over 700 notification programs and has

placed over $240 million in media notice. Selected cases are attached as Attachment 1.

5. Courts have admitted expert testimony from KM on our firm’s quantitative and qualitative

evaluations of notice programs. Many Courts have commented favorably, on the record,

regarding the effectiveness of notice plans prepared by KM. Selected judicial comments are

attached as Attachment 2.

6. I have testified as an expert at trial and in a deposition in Engle v. R. J. Reynolds Tobacco,

No. 94-08273 (Fla. Cir. Ct., Dade County). I have been deposed as an expert in In re

NASDAQ Market-Makers Antitrust Litigation, M21-68 RWS), 94-CIV. 3994 (RWS), M.D.L.

No. 123 (S.D.N.Y.), In re Dow Corning, No. 95-20512 (Bankr. E.D. Mich.), Georgine v.

Amchem, Inc. et al., C.A. No. 93-CV-0215 (E.D. Pa.), In re W. R. Grace & Co., Chapter 11,

No. 01-01139 (JJF) (Bankr. D. Del.) and Gross v. Chrysler Corp., No. 061170 (Md. Cir. Ct.,

Montgomery County). I have testified in court in In re Swan Transportation Company,

Chapter 11, Case No. 01-11690, Cox v. Shell Oil Co., No. 18,844 (Tenn. Ch. Ct., Obion

County), Ahearn v. Fibreboard Corporation, C.A. No. 6:93cv526 (E.D. Tex.) and

Continental Casualty Co. v. Rudd, C.A. No. 6:94cv458 (E.D. Tex.).

7. I am the author of Reality Check: The State of New Media Options for Class Notice, published in 2010 in A Practitioner’s Guide to Class Actions;1 the co-author of Class Action

Notice and Claims Administration, published in December 2010 in The International Handbook on Private Enforcement Of Competition Law;2 the author of The Plain Language

Tool Kit for Class Action Notice, published in the October 25, 2002 issue of Class Action

1

Published by the Tort Trial & Insurance Practice Section of the American Bar Association.

2

Published by Edward Elgar Publishing, Inc.

DECLARATION OF KATHERINE KINSELLA 2

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 4 of 151

Litigation Report;3 and the author of Quantifying Notice Results in Class Actions – the Daubert/Kumho Mandate, published in the July 27, 2001 issue of Class Action Litigation Report4 and the August 7, 2001 issue of The United States Law Week.5 In addition, I am author of The Ten Commandments of Class Action Notice, published in the September 24, 1997 issue of the Toxics Law Reporter,6 and co-author of How Viable Is the Internet for Class Action Notice, published in the March 25, 2005 issue of Class Action Litigation Report.7 8. KM was retained to design and implement the Proposed Class Action Settlement Notice Program (Attachment 3) in this litigation. We have helped prepare the following Notice materials for use in accordance with this Notice Program:
a. A Long-Form Notice; b. A Postcard Notice; c. A Publication Notice; d. A script for Radio Advertisements about the Settlement; and e. A script for Public Service Announcements about the Settlement. We will also be participating in the development and dissemination of Notice through other means outlined in the Notice Program, including, but not limited to, a website and toll-free phone line, earned media efforts, and outreach to organizations that regularly interact with prospective Class Members.

3

Published by The Bureau of National Affairs (BNA).

4

Ibid. BNA.

5

Ibid. BNA.

6

Ibid. BNA.

7

Ibid. BNA.

DECLARATION OF KATHERINE KINSELLA 3

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 5 of 151

9. Fed. R. Civ. P. 23(c)(2)(B) requires that class action notices be written in "plain, easily understood language." As in all cases in which KM is asked to prepare and opine to notice materials for class actions, KM has endeavored to use plain and easily understood language in all of the Notice materials it has prepared for this case.
10. Based on my experience in developing notice plans and preparing notice materials for numerous class actions, it is my opinion that the attached Notice Program, consisting of direct notice and a multi-faceted program of targeted media and third party outreach, is the best notice practicable under the circumstances to reach potential members of the proposed Class in this case, and it is consistent with the standards employed by KM in other notification programs designed to reach members of settlement groups or classes. It is my opinion, therefore, that the Notice Program a proposed for this case will afford due process to members of the proposed Class and satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure. * * * * * I declare that the foregoing declaration is true and correct to the best of my personal
knowledge, information, and belief.

__________________________________ Katherine Kinsella

March 23, 2011 ________________________ Date

DECLARATION OF KATHERINE KINSELLA 4

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ATTACHMENT 1: SELECTED KM CASES

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SELECTED KM CASES
ANTITRUST Big Valley Milling, Inc. v. Archer Daniels Midland Co., No. 65-C2-96-000215 (Minn. Dist. Ct. Renville County) (lysine). Carlson v. Abbott Laboratories, No. 94-CV-002608 (Wis. Cir. Ct. Milwaukee County) (infant formula). Comes v. Microsoft Corp., No. CL8231 (Iowa Dist. Ct. Polk County Connecticut v. Mylan Laboratories, Inc., No. 99-276, MDL No. 1290 (D.D.C.) (pharmaceutical). Conroy v. 3M Corp., No. C-00-2810 CW (N.D. Cal.) (invisible tape). Copper Antitrust Litigation, MDL 1303 (W.D. Wis.) (physical copper). Cox v. Microsoft Corp., No. 105193/00 (N.Y. Sup. Ct. N.Y. County) (software). D.C. 37 Health & Security Plan v. Medi-Span, No. 07-cv-10988 (D.Mass.); New England Carpenters Health Benefits Fund v. First DataBank, Inc., No. 1:05-CV-11148 (D. Mass.) (pharmaceutical). Giral v. Hoffman-LaRoche Ltd., C.A. No. 98 CA 7467 (W. Va. Cir. Ct., Kanawha County) (vitamins). In re Buspirone Antitrust Litigation, MDL No. 1413 (S.D.N.Y.) (pharmaceutical). In re Cardizem Antitrust Litigation, 200 F.R.D. 326 (E.D. Mich.) (pharmaceutical). In re Compact Disc Minimum Price Antitrust Litigation, MDL No. 1361 (D. Me.) (compact discs). In re Insurance Brokerage Antitrust Litig., MDL No. 1663 Civil No. 04-5184 (FSH) (D.N.J.) (insurance). In re International Air Transportation Surcharge Antitrust Litigation, No. M 06-1793, MDL No. 1793 (N.D. Cal.) (airline fuel surcharges).

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 8 of 151
In re Monosodium Glutamate Antitrust Litig., D-0202-CV-0200306168, D-202-CV-200306168 (N.M. Dist. Ct., Bernalillo County) (MSG). In re Motorsports Merchandise Antitrust Litigation, No. 1:97-CV-2314-TWT (N.D. Ga.) (merchandise). In re Nasdaq Market-Makers Antitrust Litigation, MDL No. 1023 (S.D.N.Y.) (securities). In re Pharmaceutical Industry Average Wholesale Price Litigation, No. CA:01-CV-12257, MDL No. 1456 (D. Mass.) (pharmaceutical). In re Toys “R” Us Antitrust Litigation, No. CV-97-5750, MDL No. 1211, (E.D.N.Y.) (toys and other products). In re Western States Wholesale Natural Gas Antitrust Litigation, No. CV-03-1431, MDL No. 1566, (D. Nev) (natural gas). Kelley Supply, Inc. v. Eastman Chemical Co., No. 99CV001528 (Wis. Cir. Ct., Dane County) (Sorbates). Ohio vs. Bristol-Myers Squibb, Co., No. 1:02-cv-01080 (D.D.C.) (pharmaceutical). Raz v. Archer Daniels Midland Co., Inc., No. 96-CV-009729 (Wis. Cir. Ct. Milwaukee County) (citric acid). CONSUMER AND PRODUCT LIABILITY Azizian v. Federated Department Stores, Inc., No. 4:03 CV-03359 (N.D. Cal.) (cosmetics). Baird v. Thomson Consumer Elecs., No. 00-L-000761 (Ill. Cir. Ct., Madison County) (television). Bonilla v. Trebol Motors Corp., No. 92-1795 (D.P.R.) (automobiles). Burch v. American Home Products Corp., No. 97-C-204 (1-11) (W. Va. Cir. Ct., Brooke County) (Fen Phen). Cosby v. Masonite Corp., No. CV-97-3408 (Ala. Cir. Ct. Mobile County) (siding product); Quin v. Masonite Corp., No. CV-97-3313 (Ala. Cir. Ct. Mobile County) (roofing product).

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 9 of 151
Cox v. Shell Oil Co., No. 18,844 (Tenn. Ch. Ct. Obion County) (polybutylene pipe). Daniel v. AON Corp., No. 99 CH 11893 (Ill. Cir. Ct. Cook County) (insurance). Fettke v. McDonald’s Corp., No. 044109 (Cal. Super Ct. Marin County) (trans fatty acids). Florida v. Nine West Group, Inc., No. 00 CIV 1707 (S.D.N.Y.) (shoes). Foothill/De Anza Community College Dist. v. Northwest Pipe Co., No. 00-20749-JF(N.D. Cal.) (fire sprinklers). Galanti v. The Goodyear Tire & Rubber Company, No. 03-209 (D.N.J.) (radiant heating) (2002). Garza v. Sporting Goods Properties, Inc., No. SA 93-CA-1082 (W.D. Tex.) (gun ammunition). Hoorman v. GlaxoSmithKline, No. 04-L-715 (Ill. Cir. Ct., Madison Cty.) (Paxil pharmaceutical). In re Louisiana Pacific Corp. Inner Seal OSB Trade Practices Litigation, MDL No. 1114 (N.D. Cal.) (oriented strand board). In re Tri-State Crematory Litig, MDL 1467 (N.D. Ga.) (improper burial). Lebrilla v. Farmers Group Inc., No. 00-CC-07185 (Cal. Super. Ct., Orange County) (auto insurance). Lovelis v. Titflex, No. 04-211 (Ak. Cir. Ct., Clark County) (gas transmission pipe). Naef v. Masonite Corp., No. CV-94-4033 (Ala. Cir. Ct. Mobile County) (hardboard siding product). Peterson v. BASF Corp., No. C2-97-295 (D. Minn.) (herbicide). Posey v. Dryvit Sys., Inc. No. 17,715-IV (Tenn. Cir. Ct., Jefferson County) (EIFS stucco). Reiff v. Epson America, Inc. and Latham v. Epson Am., Inc., J.C.C.P. No. 4347 (Cal. Super. Ct., L.A. County) (ink jet printers).

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 10 of 151
Richison v. Weyerhaeuser Company Limited, No. 05532 (Cal. Super. Ct. San Joaquin County) (roofing product). Ruff v. Parex, Inc., No. 96-CvS 0059 (N.C. Super. Ct. Hanover County) (synthetic stucco product). Shah v. Re-Con Building Products, Inc., No. C99-02919 (Cal. Super. Ct. Contra Costa County) (roofing product). Shields vs. Bridgestone/Firestone, Inc., Bridgestone Corp., No. E-167.637 (D. Tex.) (tires). Smith v. Behr Process Corp., No. 98-2-00635 (Wash. Super. Ct., Gray Harbor County) (stain product). Weiner v. Cal-Shake, Inc., J.C.C.P. No. 4208 (Cal. Super. Ct., Contra Costa County) (roofing product). Wholesale Elec. Antitrust Cases I & II, J.C.C.P. Nos. 4204 & 4205 (Cal. Super. Ct., San Diego County) (energy). Woosley v. State of California, No. CA 000499 (Cal. Super. Ct., Los Angeles County) (automobiles). MASS TORT Ahearn v. Fibreboard Corp., No. 6:93cv526 (E.D. Tex); Continental Casualty Co. v. Rudd, No. 6:94cv458 (E.D. Tex) (asbestos injury). Backstrom v. The Methodist Hospital, No. H.-94-1877 (S.D. Tex.) (TMJ injury). Engle v. RJ Reynolds Tobacco Co., No. 94-08273 (Fla. Cir. Ct. Dade County) (tobacco injury). Georgine v. Amchem, Inc., No. 93-CV-0215 (E.D. Pa.) (asbestos injury). BANKRUPTCIES In re Armstrong World Industries, Inc., No. 00-4471 (Bankr. D. Del.).

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 11 of 151
In re Dow Corning, No. 95-20512 (Bankr. E.D. Mich.) (breast implants). In re Johns-Manville Corp., 68 B.R. 618, 626 (Bankr. S.D.N.Y.) (asbestos). In re Kaiser Aluminum Corp., No. 02-10429 (JFK) (D. Del). In re Owens Corning, No. 00-03837 (Bankr. D. Del.). In re Raytech Corp., No. 5-89-00293 (Bankr. D. Conn.) (asbestos). In re The Celotex Corp., Nos. 90-10016-8B1 and 90-10017-8B1 (Bankr. M.D. Fla.) (asbestos). In re U.S. Brass Corp., No.94-40823S (Bankr. E.D. Tex.) (polybutylene). In re USG Corp., Nos. 01-2094 - 01-2104 (Bankr. D. Del.). In re W.R. Grace & Co., No. 01-01139 (Bankr. D. Del.). INSURANCE McNeil v. American General Life and Accident Insurance Co., No. 8-99-1157 (M.D. Tenn.) (insurance). Nealy v. Woodmen of the World Life Insurance Co., No. 3:93 CV-536 (S.D. Miss.) (insurance). HOLOCAUST VICTIMS REPARATIONS In re Holocaust Victim Assets Litigation, Nos. CV 96-4849, CV-5161 and CV 97-461 (E.D.N.Y.) (Holocaust). The International Commission on Holocaust Era Insurance Claims Outreach PENSION BENEFITS Collins v. Pension Benefit Guarantee Corp., No. 88-3406 (D.D.C.); Page v. Pension Benefit Guarantee Corp., No. 89-2997 (D.D.C.).

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Forbush v. J. C. Penney Co., Inc., Nos. 3:90-2719 and 3:92-0109 (N.D. Tex.). INTERNATIONAL Ahearn v. Fiberboard Corporation, No. 6:93cv526 (E.D. Tex) and Continental Casualty Co. v. Rudd, No. 6:94cv458 (E.D. Tex.) (asbestos injury) (1993). Galanti v. The Goodyear Tire & Rubber Company, No. 03-209 (D.N.J.) (radiant heating) (2002). In re Holocaust Victims Assets Litigation, No. CV 96-4849 (ERK) (MDG) (Consolidated with CV5161 and CV 97461) (E.D.N.Y.) (2003). In re Owens Corning, Chapter 11, No. 00-03837 (MFW) (Bankr. D. Del.) (2006). In re The Celotex Corporation, Chapter 11, Nos. 90-10016-8B1 and 90-10017-8B1 (Bankr. M.D. Fla.) (1996). In re USG Corporation, Chapter 11, Nos. 01-2094 (RJN) through 01-2104(RJN) (Bankr. D. Del.) (2006). In re Western Union Money Transfer Litigation, No. 01 0335 (CPS) (VVP) (E.D.N.Y.) (wire transactions) (2004). In re W.R. Grace & Co., Chapter 11, No. 01-01139 (Bankr. D. Del.) (bankruptcy) (2001). International Committee on Holocaust Era Insurance Claims (1999). PRODUCT RECALL Central Sprinkler Voluntary Omega Sprinkler Replacement Program Hart v. Central Sprinkler Corp., No. BC17627 (Cal. Super. Ct. Los Angeles County) & County of Santa Clara v. Central Sprinkler Corp., No. CV 17710119 (Cal. Super. Ct. Santa Clara County) TELECOM Bidner, et al. v. LCI International Telecom Corp d/b/a Qwest Communications.

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Community Health Association v. Lucent Technologies, Inc., No. 99-C-237, (W.Va. Cir. Ct., Kanawha County). Cundiff et al. v. Verizon California, Inc., No. 237806 (Cal. Super Ct., Los Angeles County). Kushner v. AT&T Corporation, No. GIC 795315 (Cal. Super. Ct., San Diego County). Rish Enterprise v. Verizon New Jersey, No. MID-L-8946-02 (N.J. Super. Ct.). Sonnier, et. al. v. Radiofone, Inc., No. 44-844, (L.A. Jud. Dist. Ct., Plaqueimes Parish County). State of Louisiana v. Sprint Communications Company L.P., No. 26,334 (Jud. Dis. Ct., Parish of West Baton Rouge) and State of Louisiana v. WilTel, Inc., No. 26,304 (Jud. Dis. Ct., Parish of West Baton Rouge).

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ATTACHMENT 2: JUDICIAL COMMENTS

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JUDICIAL COMMENTS
Ahearn v. Fibreboard Corp., No. 6:93 cv526 (E.D. Tex.); Continental Casualty Co. v. Rudd, No. 6:94cv458 (E.D. Tex.). In approving the notice plan for implementation in the Ahearn and Rudd class actions in 1994, Judge Parker stated, "I have reviewed the plan of dissemination, and I have compared them to my knowledge at least of similar cases, the notices that Judge Weinstein has worked with [Agent Orange] and Judge Pointer [Silicon Gel Breast Implants], and it appears to be clearly superior." - Chief Judge Robert M. Parker (1994)
Azizian v. Federated Department Stores, Inc., No. 3:03 CV-03359 (N.D. Cal.). “The notice was reasonable and the best notice practicable under the circumstances; was due, adequate and sufficient notice to all class members; and complied fully with the laws of the United States and of the Federal Rules for Civil Procedure, due process and any other applicable rules of court.” - Hon. Sandra Brown Armstrong (2004)
Collins v. Pension Benefit Guarantee Corp., No. 88-3406 (D.D.C.). "The notice provided was the best notice practicable under the circumstances. Indeed, the record shows that the notice given was consistent with the highest standards of compliance with Rule 23(e)." (1996)
Cox v. Microsoft Corporation, No. 105193/00 (N.Y. Sup. Ct. N.Y. County). “The court finds that the combination of individual mailing, e-mail, website and publication notice in this action is the most effective and best notice practicable under all the circumstances, constitutes due, adequate and reasonable notice to all Class members and otherwise satisfies the requirements of CPLR 904, 908 and other applicable rules. The Settlement meets the due process requirement for class actions by providing Class members an opportunity either to be heard and participate in the litigation or to remove themselves from the Class.” - Hon. Karla Moskowitz (2006)
Cox v. Shell Oil Co., No. 95-CV-2 (Tenn. Ch. Ct. Obion County). In the order approving the settlement of the polybutylene pipe class action, Judge Maloan stated, “The Court finds the notice program is excellent. As specified in the findings below, the evidence supports the conclusion that the notice program is one of the most comprehensive class notice campaigns ever undertaken.” (1995)

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Foothill/De Anza Community College District v. Northwest Pipe Co., No. CV-00-20749 (N.D. Cal.). “The Court finds that the settling parties undertook a thorough and extensive notice campaign designed by Kinsella/Novak Communications, Ltd., a nationally-recognized expert in this specialized field. The Court finds and concludes that the Notice Program as designed and implemented provides the best practicable notice to the Class, and satisfied requirements of due process.” - Hon. Jeremy Fogel (2004)
Galanti v. The Goodyear Tire & Rubber Co., No. 03-209 (D.N.J.). “The published notice, direct notice and Internet posting constituted the best practicable notice of the Fairness Hearing, the proposed Amended Agreement, Class Counsels’ application for fees, expenses and costs, and other matters set forth in the Class Notice and the Summary Notice. The notice constituted valid, due and sufficient notice to all members of the Settlement Classes, and complied fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the Constitution of the United States, the laws of New Jersey and any other applicable law.” – Hon. Stanley R. Chesler (2004)
Georgine v. Amchem, 158 F.R.D. 314, 326 (E.D. Pa.). Judge Reed explained that the notice program developed by Kinsella “goes beyond that provided in [previous cases]” and “the efforts here are more than adequate to meet the requirements of Rule 23(c)(2).” (1993)
Higgins v. Archer-Daniels Midland Co., Second Judicial District Court, County of Bernalillo C-202CV-200306168 (N.M. 2d Jud. Dist. Bernalillo County). “The Court finds that the form and method of notice given to the Settlement Class, including both mailed notice to persons and firms for whom such notice was practical and extensive notice by publication through multiple national and specialized publications, complied with the requirements of Rule 1-023 NMRA 2006, satisfied the requirements of due process, was the best notice practicable under the circumstances, and constituted due and sufficient notice of the Settlement Agreements and their Final Approval Hearing, and other matters referred to in the Notice. The notice given to the Settlement Class was reasonably calculated under the circumstances to inform them of the pendency of the actions involved in this case, of all material elements of the proposed Settlements, and of their opportunity to exclude themselves from, object to, or comment on the Settlements and to appear at the Final Approval Hearing.” -Hon. William F. Lang (2006)
In re Compact Disc Minimum Advertised Price Antitrust Litigation, MDL No. 1361 (D. Me.). In approving the notice plan for implementation in the Compact Disc Minimum Advertised Price Antitrust Litigation, Judge D. Brock Hornby stated, “(the plan) provided the best practicable notice under the circumstances and complied with the requirements of both 15 U.S.C. 15c(b) (1) . . . the

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notice distribution was excellently designed, reasonably calculated to reach potential class members, and ultimately highly successful in doing so.” - Hon. D. Brock Hornby (2002/2003)
In re International Air Transportation Surcharge Antitrust Litigation, No. M 06-1793, MDL No. 1793 (N.D. Cal.). In approving the notice plan in this litigation that involved a proposed settlement of more than $200 million for U.S. and U.K. class members, U.S. District Judge Charles Breyer repeatedly praised KNC: “I think the notice is remarkable in this case. . . . This is brilliant. This is the best notice I've seen since I've been on the bench. . . . Turning back to the settlement, again I want to applaud the parties for the notice. I mean it's amazing. You know, it really is good. And I don't know where this person practices, I don't even know that she's a lawyer. But she really did a good job on this announcement, this notice. So thank you very much. . . . And I once again want to express my sincere appreciation of the notice. I mean, I was just extraordinarily impressed. Extraordinarily impressed.” – Hon. Charles Breyer (2008)
In re The Celotex Corporation, Nos. 90-10016-8B1 and 90-10017-8B1 (Bankr. M.D. Fla.). “...all counsel should be complimented on the fact that they have gone to every possible conceivable method of giving notice from putting it on TV and advertising it in papers..... the record should also reflect the Court’s appreciation to Ms. Kinsella for all the work she’s done, not only in pure noticing, but ensuring that what noticing we did was done correctly and professionally.” - Hon. Thomas E. Baynes, Jr.
In re Western States Wholesale Natural Gas Antitrust Litigation, No. CV-03-1431, MDL No. 1566, (D. Nev) (natural gas).
“This notice program fully complied with Federal Rule of Civil Procedure 23 and the requirements of due process. It provided to the MDL Class the best notice practicable under the circumstances.” Hon. Philip M. Pro (2007)
Johns-Manville Corp. 68 B.R. 618, 626 (Bankr. S.D.N.Y. 1986), aff'd, 78 B.R. 407 (S.D.N.Y. 1987), aff'd sub nom. Kane v. Johns-Manville Corp. 843 F.2d. 636 (2d Cir. 1988). In approving the notification plan in the Johns-Manville Bankruptcy Reorganization, the court referred to it as "an extensive campaign designed to provide the maximum amount of publicity ... that was reasonable to expect of man and media." - Hon. Burton Lifland (1996/1998)
Lovelis v. Titeflex Corp., No. CIV-2004-211 (Ark. 9th Cir. Ct. Clark Co.). “Accordingly, the Notice as disseminated is finally approved as fair, reasonable, and adequate notice under the circumstances. The Court finds and concludes that due and adequate notice of the pendency

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of this Action, the Stipulation, and the Final Settlement Hearing has been provided to members of the Settlement Class, and the Court further finds and concludes that the Notice campaign described in the Preliminary Approval Order and completed by the Parties complied fully with the requirements of Arkansas Rule of Civil Procedure 23 and the requirements of due process under the Arkansas and United States Constitutions. The Court further finds that the Notice campaign undertaken concisely and clearly states in plain, easily understood language:
(a.) the nature of the action; (b.) the definition of the class certified; (c.) the class claims, issues or defenses; (d.) that a Class Member may enter an appearance and participate in person or through
counsel if the member so desires; (e.) that the Court will exclude from the class any member who requests exclusion, stating
when and how members may elect to be excluded; and (f.) the binding effect of the Final Order and Judgment on Class Members.
- Hon. John A. Thomas
Naef v. Masonite Corp., No. CV-94-4033 (Ala. Cir. Ct. Mobile County). “In November, 1997, the Court approved a massive Notice Program to apprise class members of the class action Settlement, including the individually mailed, notices, publication notice and notification by way of other avenues nationally and locally. This Notice Program was designed by recognized experts, approved by the mediator and the Court, and implemented diligently by the parties, at defendants’ cost. It provided the best notice practicable to the Class, comports with due process, and was clearly adequate under Alabama Rule of Civil Procedure 23(e), the United States Constitution, and other applicable law.” - Hon. Robert G. Kendall (1997)

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ATTACHMENT 3: NOTICE PROGRAM

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NOTICE PROGRAM In re Black Farmers Discrimination Litigation
No. 08-mc-511 U.S. District Court for the District of Columbia

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TABLE OF CONTENTS
FIRM OVERVIEW CASE BACKGROUND
Situation Analysis Class Definition
NOTICE PROGRAM OVERVIEW
Program Components Direct Notice Paid Media Placements Summary
PAID MEDIA PLACEMENTS
Target Audience Media Weight Local Newspapers Radio Farming/Ranching Trade Publications Newspaper Supplement Consumer Magazine Internet Advertising
NOTICE DESIGN
Postcard Notice Long Form Notice Publication Notice Radio Ad Website and Internet Ads
ADDITIONAL NOTICE PROGRAM COMPONENTS
Earned Media Program Additional Outreach Opportunities

PAGE
2
4 5
7 9 11
14 15 18 19 23 29 30 31
35 36 37 38 39
41 43

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Toll-Free Telephone Support

45

APPENDICES

NP Appendix 1 – Newspapers by Designated Market Area (DMA)

NP Appendix 2 – Radio Stations

NP Appendix 3 – Newspapers Carrying American Profile Supplement

NP Appendix 4 – Postcard Notice

NP Appendix 5 – Long Form Notice

NP Appendix 6 – Publication Notice

NP Appendix 7 – Radio Ad

NP Appendix 8 – Public Service Announcements

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In re Black Farmers Discrimination Litigation
FIRM OVERVIEW
Kinsella Media, LLC (“KM”) is a nationally recognized advertising and legal notification firm specializing in the design and implementation of class action and bankruptcy notification programs to reach unidentified putative class members. KM has developed and directed some of the largest and most complex national notification programs, primarily in antitrust, bankruptcy, consumer fraud, mass tort, and product liability litigation. Specific cases have spanned a broad spectrum of issues, including asbestos, breast implants, home siding and roofing products, infant formula, pharmaceuticals, polybutylene plumbing, tobacco, and Holocaust claims. The firm has developed or consulted on over 700 notification programs and has placed over $240 million in paid media notice. KM develops advertisements, press materials, websites, and other notice materials that bridge the gap between litigation complexities and the need for a clear and simple explanation of legal rights. The firm employs industry-recognized tools of media measurement to quantify the adequacy of the notice for the court, and ensures all notice materials are in “plain language” and are fully compliant with Rule 23 of the Federal Rules of Civil Procedure (“Rule 23”) and comparable state guidelines.
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In re Black Farmers Discrimination Litigation
CASE BACKGROUND
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In re Black Farmers Discrimination Litigation
CASE BACKGROUND:
SITUATION ANALYSIS
In 1999, the U.S. Department of Agriculture (“USDA”) and a class of African American farmers settled claims in the case of Pigford v. Glickman (“Pigford”) that the USDA, because of race discrimination, had wrongfully denied the farmers loans and other benefits between 1981 and 1996. The terms of this settlement, including a claims resolution process whereby Class Members could petition to have their individual claims of discrimination adjudicated by Court-appointed neutrals, were incorporated into a Consent Decree. Many Class Members who may have been entitled to benefits under that settlement did not file claims before the deadline set by the Court under the Consent Decree, and therefore never received a determination on the merits of their Pigford claims. In 2008, Congress passed a law entitling certain African American farmers who sought to file Pigford claims under the Pigford Consent Decree, but were precluded from doing so because their requests were untimely, to bring new claims for relief if they would have been eligible for relief under the Pigford Consent Decree. In February 2010, a Settlement was reached in In re Black Farmers Discrimination Litigation, Case No. 08-mc-0511 (D.D.C.), on behalf of a putative Class of such African American farmers who may be entitled to the remedies provided by the 2008 law. In December 2010, the President signed into law a measure appropriating funds for the Settlement. The Pigford Facilitator has retained mailing addresses for many late-filing Pigford claimants, some of whom are now putative Class Members in In re Black Farmers Discrimination Litigation, and has sent mailings to most of those farmers at least once. However, due to the passage of time, not all the addresses are current, and of those that are not current, it is quite possible that even with research, a current address will not be located. Because direct notice in this case will not reach all potential Class Members, and because of the importance of ensuring that all Class Members have an opportunity to timely file a claim, a targeted paid media notice program is strongly recommended.
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In re Black Farmers Discrimination Litigation
CASE BACKGROUND:
CLASS DEFINITION
The Class is defined as “all individuals: (1) who submitted late-filing requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999 and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree.”
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In re Black Farmers Discrimination Litigation
NOTICE PROGRAM OVERVIEW
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In re Black Farmers Discrimination Litigation
NOTICE PROGRAM OVERVIEW:
PROGRAM COMPONENTS
This Notice Program outlines procedures to provide notice of the Settlement of In re Black Farmers Discrimination Litigation as a class action, consistent with the requirements set forth in Rule 23 of the Federal Rules of Civil Procedure.
Based upon information provided by Class Counsel, the results of research on Class Members and their response to media and the media habits of the target audience, KM recommends the following fourcomponent Notice Program:
➢ DIRECT NOTICE:
§ The Postcard Notice (see page 35) will be sent via first-class mail to all individuals with identifiable addresses on file with the Facilitator in the original Pigford litigation.
§ The Long Form Notice (see page 36) will be: ➢ Sent via first-class mail to: ➢ All individuals who request the Notice as a result of seeing the Publication Notice (see page 37). ➢ All putative Class Members who request a copy via the toll-free information line or the PO Box detailed in the Publication Notice. ➢ Available on the informational website as a PDF file.
➢ PAID MEDIA NOTICE: After careful research of the demographics of Class Members, KM
recommends broad paid media notice comprised of radio, print, and Internet vehicles that will reach those Class Members, including: § National African American network radio, agricultural radio networks throughout the
southeast and other areas where a significant number of putative Class Members reside, and local radio placements in areas with the highest concentrations of putative Class Members. (Location of putative Class Members was based on zip code data received from the Pigford Facilitator. The data was sorted into gross numbers by zip code, county, and state and did not contain any personal information about filers.) § Print placements in African American focused newspapers, community newspapers, and the largest circulating Sunday newspaper in areas with the highest concentration of putative Class Members as well as a targeted national consumer magazine and a national newspaper supplement. § Print placements in farming/ranching trade publications. § Internet banner ads on African American-focused online networks and websites.
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In re Black Farmers Discrimination Litigation
➢ THIRD-PARTY OUTREACH: There are numerous organizations that have worked
extensively with putative Class Members in connection with the original Pigford case and the current litigation. These organizations may have ongoing interactions with putative Class Members. These groups and other entities, such as churches, civil rights groups, and general agriculture organizations may be willing to distribute information during the claims-filing period by sending the Publication Notice or other summary information to their members, displaying flyers, or otherwise helping to share information via “word of mouth.” This assistance would be especially helpful because the organizations are already trusted as reliable information sources by putative Class Members. KM will execute a third-party outreach program after the final approval hearing to a variety of organizations to help remind Class Members about the impending claims deadline.
➢ EARNED MEDIA: KM recommends supporting the paid media notice efforts with earned
media outreach, through: § A traditional press release sent to major media outlets. § A radio public service announcement (PSA), distributed to radio outlets in areas with high
concentrations of putative Class Members. § Targeted “pitch” calls to media outlets in areas with high concentrations of putative Class
Members, to encourage the outlets to report on the Settlement and how putative Class Members may file a claim. Pitch calls would also ask targeted broadcast stations to carry the PSA. In addition, during the claims-filing period, KM recommends distribution of a video B-roll package to television outlets nationwide. These earned media components are explained in more detail on pages 41 and 42.
To ensure putative Class Members’ easy access to updated information, KM also recommends a dedicated Settlement website, and Internet search engine sponsorships through keyword/phrase searches to facilitate putative Class Members’ access to the site.
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In re Black Farmers Discrimination Litigation
NOTICE PROGRAM OVERVIEW:
DIRECT NOTICE
The vast majority of putative Class Members in this case are identified, but the parties do not have current contact information for a portion of the Class. The direct notice program will therefore begin with intensive research to maximize the accuracy of the existing list of putative Class Member contact information. The direct notice program would then involve:
➢ Initial mailing of the Postcard Notice to the existing list of putative Class Members, followed by additional research based on returned mail.
➢ After a period of time agreed upon by the parties, the Claims Administrator will re-contact with an additional postcard all putative Class Members on the existing list who are not represented by counsel and have not yet filed a Claim Form.
➢ After an additional period of time agreed upon by the parties, the Administrator will recontact by phone all putative Class Members on the existing list who are not represented by counsel and have not yet filed a Claim Form.
The Long Form Notice will be mailed to anyone who requests more information, and will be available on the informational website.
EFFICACY OF POSTCARD NOTICE
In some cases, KM believes that initial notice in the form of a postcard is the most effective means of conveying information to Class Members. This is especially true when education levels and understanding of the legal system vary across the Class. In this case, taking into consideration Class demographics, the amount and complexity of information in the Long Form Notice, and that this is not the first time Class Members are hearing about the case, postcard notice provides the best means of communicating with Class Members.
The Postcard Notice has been carefully designed to alert the recipient to the importance of the information and is written in plain language at a reasonable reading level.
Numerous courts have approved the use of postcard notice,1 and research has shown that a summary notice is more likely to be read by recipients than a longer form notice. Based on extensive research including focus groups, the Federal Judicial Center (“FJC”) believes that summary notices should be mailed in many class action cases.
1 See, e.g., Lockwood v. Certegy Check Services, Inc., No. 8:07-cv-01434 (M.D. Fla.); Hillis v. Equifax Consumer Services, No. 1:04-cv-3440 (N.D. Ga.); Larson v. Sprint Nextel Corp., 2010 U.S. Dist. LEXIS 3270 (D. N.J.); In re Countrywide Fin. Corp. Consumer Data Sec. Breach Litigation, 2009 U.S. Dist. LEXIS 119870 (W.D. Ky.); Ambrogi, et al. v. Verizon Internet Services, Inc., No. BC-328283 (Cal. Super. Ct.); Benney v. Sprint Spectrum, L.P., No. 05-CV-1422 (Kan. Dist. Ct.); Campbell v. AirTouch Cellular, No. D-044759, 2006 WL 754005 (Cal. Super. Ct.); In re Antibiotic Antitrust Actions, 333 F. Supp. 278 (S.D.N.Y.); Parker v. Berkeley Premium Nutraceuticals, Inc., No. 04-CV-1903 (Ohio Ct. C.P.); Perez v. Asurion, 501 F.Supp.2d 1360 (S.D. Fla. 2007); Schwartz v. GE Capital Consumer Card, No. 06-CV-0394 (E.D.N.Y.); Snow v. Lenscrafters, Inc., No. CGC-02-405544 (Cal. Super. Ct.).
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In re Black Farmers Discrimination Litigation
Furthermore, U.S. Postal Service research shows that in 2008, 79% of recipients either “read” or “scan[ned]” the advertising mail (the category into which legal notices fall) sent to their households. In 2006 and 2007, that percentage was 81%. In order to decide to read or toss advertising mail, the recipient must look at the envelope or mailer. Both sides of the Postcard Notice in this case will be designed to capture the attention of Class Members, who are particularly aware of this case and its importance given that most filed a claim in the original Pigford case.
SECOND POSTCARD NOTICE
The purpose of the second postcard notice is to provide a reminder to Class Members who have not yet filed a claim and who the Administrator’s records show are not represented by counsel about the opportunity to file a claim, with ample time remaining to file a claim.
PHONE CONTACT CAMPAIGN
The goal of the phone contact campaign will be to make sure that as many Class Members as possible receive sufficient information about the Settlement to decide whether to pursue a claim.
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In re Black Farmers Discrimination Litigation
NOTICE PROGRAM OVERVIEW:
PAID MEDIA PLACEMENTS SUMMARY
To reach Class Members for whom the Administrator does not have current contact information, and to provide Class Members with additional exposure to the notice message in an effort to encourage claims-filing, KM recommends the use of targeted paid media. Paid media advertising is guaranteed to appear, allowing for control of the content, timing, and positioning of the message. Newspapers, consumer magazines, television, radio, and the Internet, among other sources, offer paid media opportunities.
The following list provides a brief summary of KM’s recommended media placements in this case. More detailed information about each publication and its applicability to the target audience in this case appears in the Paid Media Placements section of this plan.
PRINT
Newspapers § Approximately 50 Sunday newspapers in markets with the highest concentration of putative Class Members § Approximately 161 African American-focused newspapers in markets with a significant number of putative Class Members § Approximately 211 community newspapers in counties with a significant number of putative Class Members
Newspaper Supplement § American Profile
Consumer Magazine § Jet
Farming/Ranching Trade Publications § Approximately 20 farming and ranching trade publications in regions with significant numbers of putative Class Members as well as selected national trade publications
BROADCAST
Radio § National radio networks whose programming is targeted primarily to African Americans § Local radio stations with high African American listenership in markets with high concentrations of putative Class Members § State/regional agriculture radio networks in markets where both a high number of putative Class Members reside and in which agriculture is a significant industry
ONLINE
Internet Banner Ads (on websites focused on African American community and issues) § theGrio.com
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In re Black Farmers Discrimination Litigation
§ AOL Black Voices § Interactive One Network Keyword Search § Google § Yahoo! § Bing
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In re Black Farmers Discrimination Litigation
PAID MEDIA PLACEMENTS
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In re Black Farmers Discrimination Litigation
PAID MEDIA PLACEMENTS:
TARGET AUDIENCE
Given the lack of available, reliable, subscription-based consumer data about the media habits of African Americans who work in agriculture, KM conducted additional research in order to identify those habits and choose media placements accordingly. Based on research in the 2002 and 2007 Census of Agriculture, as well as information obtained from Plaintiffs’ Counsel (including information they obtained from feedback from putative Class Members) and organizations that routinely interact with or provide services to African American farmers, KM determined that farmers affected by this case in general:
➢ Are overwhelmingly male;
➢ Have an average age of over 60; and
➢ Live and work primarily in the southern and southeastern U.S. (Specifically, according to data from the Pigford Facilitator, the top ten states in which putative Class Members reside are, in descending order: Mississippi, Alabama, South Carolina, North Carolina, Tennessee, Georgia, Illinois, Louisiana, Oklahoma, and Florida.).
In addition, KM analyzed subscription-based consumer data from GfK MRI2 – a resource widely used in the advertising industry – about the media habits of Class Members. KM initially researched the demographics of African Americans working in agriculture, but due to the relatively small size of that statistical group, the data was not stable and is therefore not reliable for purposes of identifying a target audience and measuring media penetration against it. Instead, KM researched the media habits of two broader demographics: African Americans generally, and people who work in agriculture generally. Based on that analysis, KM reached the following conclusions based on the data:
➢ Radio is likely to be an effective way to reach many potential Class Members and their heirs; and
➢ TV does not does not provide a cost-effective method to reach potential Class Members and their heirs.
KM used the information obtained from all the above sources to select media placements most likely to reach Class Members.
2 KM analyzed syndicated data available from GfK Mediamark Research & Intelligence (“GfK MRI“). GfK MRI, formerly known as MRI, is a nationally accredited media and marketing research firm that provides syndicated data on audience size, composition, and other relevant factors pertaining to major media including broadcast, magazines, newspapers, and outdoor advertising. GfK MRI surveys a large sample of U.S. adults about the media they see and hear and about the products they use. Participants in the survey are identified by age, race, occupation, income, education, and by where they live, among other things. They are asked what magazines and newspapers they read, what TV shows and cable channels they watch, and are asked questions about Internet access and radio formats. In addition, respondents indicate the consumer products and brands they use from among 500 categories and 6000 consumer brands. The data from this survey is used by media practitioners industry-wide to characterize media and product users by demographics and to account for and compare the size and make-up of media audiences.
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PAID MEDIA PLACEMENTS:
MEDIA WEIGHT
KM received detailed data about putative Class Members from Plaintiffs’ Counsel and the Pigford Facilitator, including city and county locations along with undeliverable mail statistics by county. (KM did not receive any data that personally identified individual putative Class Members or included any other personal information.) KM sorted and analyzed this data in order to design the paid media program.
Putative Class Members in this case are distributed among hundreds of counties, primarily in the southern and southeastern U.S. KM’s research indicated that local media, particularly radio and newspapers, presented the best opportunities to reach Class Members. However, it is not cost-effective or advisable from an advertising perspective to place paid media in every county in which putative Class Members reside, especially those with small numbers of putative Class Members. Conversely, some counties contain a significant share of the putative Class and should be targeted more heavily. KM categorized regions in order to determine the relative weight of media placements.
U.S. counties are grouped into 210 Designated Market Areas (DMAs).3 DMAs are non-overlapping (a particular area is in only one DMA). KM sorted putative Class Member data provided by Plaintiffs’ Counsel and the Administrator into DMAs in order to help determine media placements.
The following chart summarizes how media will be distributed among the DMAs in which putative Class Members reside:

NATIONAL AND REGIONAL MEDIA

SUMMARY
National and regional media will reach Class Members including heirs not only in key markets but in markets across the U.S.

MEDIA ELEMENTS
• Network radio • Agricultural radio (across
South and Midwest) • Newspaper supplement,
American Profile (one time) • Consumer magazine, Jet
(one time) • Internet

MARKET
National South and Midwest (for agricultural radio)

3 A DMA is a group of counties that form an exclusive geographic area in which the home market television stations hold a dominant share of total hours viewed. “DMA” is a trademark of The Nielsen Company and is used for planning, buying, and evaluating media audiences across various markets.
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SUMMARY These markets contain approximately 81% of putative Class Members.
SUMMARY These markets contain approximately 13% of putative Class Members.

PRIMARY MARKETS

MEDIA ELEMENTS
• Highest circulating Sunday newspaper in the DMA (one time)
• Local radio – targeted to African Americans
• African American newspapers where available (two times)
• General market community newspapers (one or two time(s), depending on concentration of putative Class Members and coverage of market)
• Additional coverage will be provided by national print, radio, and Internet elements (outlined above)

MARKET/DMA
Albany, GA Atlanta, GA Birmingham (Tuscaloosa), AL Charlotte, NC Chicago, IL Columbia, SC Columbus-Tupelo, MS Columbus, GA Dothan, AL Greenville-New Bern, NC Hattiesburg-Laurel, MS Huntsville-Decatur, AL Jackson, MS Little Rock-Pine Bluff, AR Los Angeles, CA4 Memphis, TN Meridian, MS Mobile-Pensacola, AL/FL Montgomery-Selma, AL Myrtle Beach-Florence, SC New Orleans, LA New York, NY Oklahoma City, OK Raleigh-Durham, NC

SECONDARY MARKETS

MEDIA ELEMENTS
• African American newspapers where available (two times)
• General market community newspapers (up to one time in communities within a DMA where significant Class Members may reside) unless the market has

MARKET/DMA
Baton Rouge, LA Beaumont-Port Arthur, TX Biloxi-Gulfport, MS Charleston, SC Cleveland-Akron, OH Dallas-Ft. Worth, TX Detroit, MI Flint-Saginaw, MI Greensboro-High Point, NC

4 While the Los Angeles and New York markets have substantial numbers of putative Class Members, due to the large population and varying demographics in each market, general market daily newspapers do not provide a cost-effective, properly targeted notice vehicle in these areas. Therefore, media levels and spending will be adjusted to ensure that media is more focused to the African American population and not widely dispersed to the entire metropolitan area.
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SUMMARY
These markets contain approximately 6% of putative Class Members. Each market contains fewer than 200 putative Class Members.

multiple African American newspapers, in which cases general market community newspapers are not used • Additional coverage will be provided by national print, radio, and Internet elements (outlined above)
NON-TARGETED MARKETS MEDIA ELEMENTS
• Some coverage will be provided by national print, radio, and Internet elements (outlined above)

Greenwood-Greenville, MS Houston, TX Jacksonville, FL Lafayette, LA Macon, GA Miami-Ft. Lauderdale, FL Milwaukee, WI Monroe-El Dorado, LA Philadelphia, PA San Francisco-Oakland, CA Savannah, GA Sherman-Ada, OK/TX St Louis, MO Tallahassee-Thomasville, FL Tampa-St. Petersburg, FL Tulsa, OK Washington, DC Wilmington, NC
MARKET/DMA Remaining 159 DMAs

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MEDIA PLACEMENTS:
NEWSPAPERS
Newspapers serve as a widely read, timely, and credible information source that allow for geographic targeting of notice. Insertions in daily, African American focused, and community newspapers in this case will provide a portion of the Class with additional opportunities to see the Publication Notice. These insertions will include:
➢ A quarter-page ad (approximately 5.75” x 10.5”) one time in the Sunday edition of the highest circulating 50 daily newspapers in each Primary Market. (Exceptions include New York and Los Angeles, where placing the ad in the highest circulation paper in the region is unlikely to provide significant reach of the target audience and is not cost-effective. In those areas, radio and African American focused newspapers are the primary media vehicles.)
➢ A quarter-page ad (approximately 5.75” x 10.5”) two times in approximately 161 African American-focused newspapers in Primary and Secondary Markets.
➢ A quarter-page ad (approximately 5.75” x 10.5”) one or two time(s) in approximately 211 community newspapers in selected counties (based on Class Member address data) in Primary and Secondary Markets.
In communities with particularly high concentrations of putative Class Members, both an African American focused newspaper and a general market community paper may be used. Otherwise, if one is available, an African American focused newspaper will be used, and broader community newspapers may be used where available to supplement African American newspapers in counties where 50 or more putative Class Members reside. A list of these newspapers, sorted by DMA, is attached as NP Appendix 1.
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PAID MEDIA PLACEMENTS:
RADIO
NATIONAL NETWORK RADIO – GENERAL INTEREST
National radio is bought in the form of network programming and buys can therefore be tailored for a specific group of people based on the typical listeners to a network. For this Notice Program, network radio is being purchased primarily to reach African Americans. National radio is an effective way to gain additional reach and frequency of the target audience. The following radio networks will be considered at time of placement to provide the most cost-efficient and effective national radio program to reach African Americans. These radio networks reach nearly every market where identified putative Class Members live and provide additional coverage in markets across the U.S. that have significant African American populations. This provides opportunities to further distribute the message to those Class Members who cannot be located.
American Urban Radio Networks (AURN) is the only African American-owned network radio company in the country. Privately held for over 35 years, it is the largest network reaching Urban America. AURN reaches an estimated 20 million listeners each week. Programming across the networks includes programming such as: “Russ Par Weekend Show,” “Bobby Jones Gospel Countdown,” “The Bev Smith Show,” and “Dr. Ian Smith,” among others. KM does not recommend running ads on the entire AURN network; rather, placements on the following sub-networks are planned:
Sheridan Gospel Network is the nation’s first African American-owned and operated 24-hour nationally syndicated inspirational music format targeted to African American adults ages 25-54.5 Sheridan Gospel Network delivers the nation’s best mix of traditional and contemporary inspirational music.
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The American Urban Renaissance Network consists of over 200 stations with formats ranging from urban adult contemporary, oldies, news, and inspirational. The Network also delivers an estimated 11 million listeners weekly through news, sports, information, and lifestyle programming designed to meet the needs of the African American community.
The American Urban Pinnacle Network consists of more than 215 stations airing on various formats ranging from urban mainstream, adult contemporary, oldies, news, and inspirational. The network airs on such top ranked urban stations as: WRKS-FM, New York; WBLS/WLIB-New York; KDAY-FM, Los Angeles; WVAZ/WGCI, Chicago; and WDAS-FM, Philadelphia.
Radio One, Inc. is one of the nation's largest radio broadcasting companies and the largest radio broadcasting company that targets primarily African American and urban listeners. Radio One owns and/or operates 54 radio stations located in 17 urban markets in the U.S. Radio One owns and broadcasts “The Tom Joyner Morning Show” as well as many others.
LOCAL RADIO - GENERAL INTEREST PROGRAMMING
Local radio will also be used to supplement the national buy to target the Primary DMAs with the highest concentrations of putative Class Members (900 or more). Radio is able to provide a higher message frequency than other media, such as print, and will provide Class Members with opportunities to hear information regarding the Settlement on multiple stations within the market as they listen to various formats of interest. Stations that appeal to a predominantly African American audience will be used in each market. These formats may include (but are not limited to):
➢ Black Gospel: Upbeat religious music typically heard in predominately black churches, with some preaching and instructional programming.
➢ Southern Gospel: Country and soft-rock-based religious music, with some preaching and instructional programming.
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➢ Urban Contemporary: Listed simply as "urban" and also known as R&B (rhythm and blues), the urban contemporary musical genre reflects a large number of black recording artists with music such as rap, hip-hop, house, soul, and new artists.
➢ Urban Adult Contemporary: Urban adult contemporary stations are aimed at an older audience. Playlists of these stations are more soul and ballads and less rap and hip-hop music.
➢ Urban Oldies: This genre features Motown hits and black recording artists from the 50s, 60s, and 70s.
➢ Rhythmic Adult Contemporary: Rhythmic adult contemporary radio stations target adults with a rhythmic mix of dance, pop, R&B, old school, and classic disco tracks.
➢ Urban Talk: Urban talk radio stations focus on discussion about topical issues of interest in the African American community by broadcasting live conversations between the host and listeners who call in to the show.
A list of the stations included in the AURN Networks, the Radio One Network and local radio buys is attached as NP Appendix 2.
REGIONAL NETWORK RADIO – AGRICULTURE
The following farm radio networks, as available, will deliver the message directly to the farming community. Spots will be targeted to states and/or individual markets with high concentrations of putative Class Members and in which agriculture is a significant industry.
Southern Farm Network is the leading farm radio network in the Carolinas. It is distributed among 21 affiliates in both North and South Carolina and is the main source of farming news within the states.
Southeast AgNet is the only agricultural radio network covering Florida, Georgia, and Alabama, with 58 affiliates across the three states.
AgWatch Network blankets Arkansas and provides additional coverage in Kentucky, Western Tennessee, and Southern Missouri.
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Louisiana Farm Bureau Radio Network is the number one radio network in Louisiana overall and for cattle coverage. Mississippi AgriNews Network is the leading Ag Network in the state and covers all commodities. Radio Oklahoma Network is the only in-state radio network and is the leading agriculture network in the state, with coverage throughout the state particularly of cattle, cotton, and wheat topics.
The Texas Farm Bureau Radio Network is the network for the largest farm organization in Texas, providing the most full-day agriculture programming and the most remote broadcasts in the state.
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PAID MEDIA PLACEMENTS:
FARMING/RANCHING TRADE PUBLICATIONS
An important component of the Notice Program is advertising in farming trade publications that are likely to be read by Class Members. While the reach of these publications is not measured, they are targeted directly to the target audience and often have a high pass-along rate. In order to select the trade publications most appropriate for the Class in this case, KM identified farming and ranching publications primarily targeted to the southern and southeastern U.S. (where the majority of putative Class Members are located), with special attention to state-specific publications that are most likely to reach Class Members based on geography. KM also selected publications targeted to the sub-industries in which African Americans were most likely to be employed, based on 2007 Census of Agriculture data. KM recommends the following 20 farming trade publication placements:
➢ A full-page ad (7” x 9.875”) one time in American Cattlemen with an estimated circulation of 14,725.
➢ American Cattlemen contains information and equipment for successful cattle operation. Editorial focus of American Cattlemen is on national issues and events that shape and impact producers along with helpful "how to" articles and reviews designed to help American cattlemen make informed buying decisions when it comes to products and equipment. American Cattlemen is distributed in the top 25 cattle producing states and also publishes their magazine online monthly.
➢ A full-page ad (9.25” x 12.25”) one time in Carolina-Virginia Farmer with an estimated circulation of 20,903.
➢ Carolina-Virginia Farmer is published monthly by the Farm Progress group. Issues feature locally written articles supplemented by regional and national content edited to be useful for
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producers of tobacco, cotton corn, hogs, beef, and greenhouse/nursery in North Carolina, South Carolina, Virginia, and West Virginia. Its editors emphasize coverage of production, management, marketing, public policy, and rural lifestyles.
➢ The Cattle Connection is a group of 25 individually edited magazines each serving cattlemen in a single state. Content is primarily local news and information, focusing on people, special events (meetings, cattle shows, and sales), legislation, and management information including animal health, nutrition, breeding, feeding, grazing practices, and hay production.
➢ KM selected the following state editions of The Cattle Connection: § A full-page ad (7.25” x 10”) one time in Alabama Cattleman with an estimated circulation of 12,500. § A full-page ad (7.25” x 10”) one time in Arkansas Cattle Business with an estimated circulation of 9,200. § A full-page ad (7.25” x 10”) one time in Carolina Connection with an estimated circulation of 6,000. § A full-page ad (7.25” x 10”) one time in Florida Cattleman with an estimated circulation of 4,800. § A full-page ad (7.25” x 10”) one time in Georgia Cattleman with an estimated circulation of 5,500. § A full-page ad (7.25” x 10”) one time in Louisiana Cattleman with an estimated circulation of 4,000. § A full-page ad (7.25” x 10”) one time in Mississippi Cattle Business with an estimated circulation of 4,000. § A full-page ad (7.25” x 10”) one time in Oklahoma Cowman with an estimated circulation of 4,874. § A full-page ad (7.25” x 10”) one time in Virginia Cattleman with an estimated circulation of 8,500.
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➢ A full-page ad (7” x 10”) one time in The Cattleman Magazine with an estimated circulation of 16,615.
➢ The Cattleman Magazine is a monthly business publication for producers of beef cattle, dedicated to providing articles that help ranchers make sound, informed business decisions. Articles explain how to manage cattle and land to save time, reduce labor, cut costs, and improve profits. Major attention is given to animal health, Beef Quality Assurance, and management of range and pasture. News sections focus on trends, legislation, and technology issues that impact the way ranchers do business.
➢ A full-page ad (7” x 10”) one time in Cotton Farming with an estimated circulation of 28,500. ➢ Cotton Farming is published monthly and edited regionally for commercial cotton growers
across the U.S. Cotton Belt. Staff-written articles discuss profitable cotton farming, outline better business methods, and analyze successful grower operations. Subjects include advances in equipment, chemicals and techniques used in production, marketing, and farm policy. Cotton Farming provides profitable production and business strategies, as well as market and industry information to cotton producers. The magazine is distributed in Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Virginia.
➢ A full-page ad (9.5” x 13.5”) one time in The Farmer-Stockman with an estimated circulation of 25,008.
➢ The Farmer-Stockman is published monthly by the Farm Progress group. Issues feature locally written articles supplemented by regional and national content edited to be useful for producers of beef, wheat, milk, cotton, peanuts, and hogs in Oklahoma, Texas, and New Mexico. Its
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editors emphasize coverage of production, management, marketing, public policy, and rural lifestyles.
➢ Farm Progress is comprised of 18 local/regional farming publications that serve commercial farmers and ranchers across the nation. Each issue features locally written articles supplemented by regional and national content. Its editors emphasize coverage of production, management, marketing, public policy, and rural lifestyles. Specifically KM selected the following state/regional editions: Mid-South Farmer, Carolina-Virginia Farmer, Southern Farmer, and The Farmer-Stockman.
➢ A full-page ad (7.375” x 9.625”) one time in Growing with an estimated circulation of 22,020. ➢ Growing covers all segments of the fruit, nut and vegetable production industry, including
operations, new products, and food safety. Growing is published monthly and distributed across the U.S.
➢ A full-page ad (9.25” x 12.25”) one time in Mid-South Farmer with an estimated circulation of 21,145.
➢ Mid-South Farmer is published monthly by the Farm Progress group. Issues feature locally written articles supplemented by regional and national content edited to be useful for producers of cotton, soybeans, corn, wheat, cattle, rice, and calves in the sections of Arkansas, Louisiana, Mississippi, western Tennessee, and Missouri boot heel. Its editors emphasize coverage of production, management, marketing, public policy, and rural lifestyles.
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➢ A full-page ad (7” x 10”) one time in The Peanut Grower with an estimated circulation of 10,333.
➢ The Peanut Grower is edited for U.S. peanut farmers and is published eight times a year. The Peanut Grower delivers profitable production and marketing strategies to peanut producers. It provides farmers with a single source of information and news on all aspects of the peanut farming business. Features cover peanut production practices, new research, money-making marketing strategies, farm chemicals, legislation, crop outlook, and industry news. Productionrelated features and departments cover such topics as new pesticides; insect, weed, and disease control; rotational and planting practices; new equipment; and peanut research. The magazine is distributed in Alabama, Florida, Georgia, Mississippi, New Mexico, North Carolina, Oklahoma, South Carolina, Texas, and Virginia.
➢ A full-page ad (7” x 10”) one time in the Southern Edition of The Progressive Farmer with an estimated circulation of 305,000.
➢ The Progressive Farmer, the nation's largest farming publication, is dedicated to helping farmers grow their business by providing beneficial, useful information to help them make money and save money. Editorial content includes articles on crop and livestock production to estate and tax planning to land ownership issues. The Southern edition is distributed in Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia. The magazine is published 11 times a year.
➢ A full-page ad (9.5” x 13.5”) one time in Southern Farmer with an estimated circulation of 20,770.
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➢ Southern Farmer is published monthly by the Farm Progress group. Issues feature locally written articles supplemented by regional and national content edited to be useful for producers of cotton, peanuts, tobacco, wheat, cattle, and calves in Georgia, Alabama, Florida, Kentucky, and eastern Tennessee. Its editors emphasize coverage of production, management, marketing, public policy, and rural lifestyles.
➢ A full-page ad (9.8125” x 10.5”) one time in Texas Agriculture with an estimated circulation of 81,965.
➢ Texas Agriculture is published monthly for members of the Texas Farm Bureau who have identified income in one or more agricultural commodities. Editorial content is directed to guide the producer-members to a greater net farm income by covering those issues which directly affect business, including farm policy, regulations, legislation, new research, and production ideas.
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PAID MEDIA PLACEMENTS:
NEWSPAPER SUPPLEMENT
American Profile, a publication known as a newspaper supplement (other examples include Parade and USA Weekend), is inserted into weekend or Sunday editions of 1,316 newspapers, reaching primarily mid-size to smaller media markets across the country. This magazine, printed on newsprint, contains articles written for broad, general appeal and encourage readership through brevity. Issues are typically fewer than 30 pages. For this Notice Program, KM recommends a newspaper supplement because of its cost-effective reach capability. KM recommends the following newspaper supplement placement:
➢ A half-page ad (4.1875” x 9.25”) one time in American Profile with an estimated circulation of 10,250,000.
➢ American Profile is currently carried in 1,316 weekly and daily newspapers that are published primarily in rural counties nationwide. Editorial content is designed to appeal to small-town Americans and their interests and activities.
➢ 62% of American Profile readers are found in C/D counties6, providing increased opportunity to provide notice to those Class Members who live in rural areas as well as those who work in agriculture.
➢ A list and locations of the newspapers that carry American Profile is attached as NP Appendix 3.
6 “A Counties”, as defined by A.C. Nielsen Company (“Nielsen”), are all counties belonging to the 25 largest metropolitan areas. These metro areas correspond to the Metropolitan Statistical Area (“MSA”) and include the largest cities and consolidated areas in the U.S. “B Counties”, as defined by Nielsen, are all counties not included under A that are either over 150,000 population or in a metro area over 150,000 population according to the latest census. “C Counties”, as defined by Nielsen, are all counties not included under A or B that either have over 40,000 population or are in a metropolitan area of over 40,000 population according to the latest census. “D Counties” are, essentially, rural counties in the Nielsen classification system of A, B, C, and D counties.
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PAID MEDIA PLACEMENTS:
CONSUMER MAGAZINE
Most adults read one or more magazines during an average month and nearly three out of five adults read or look at a magazine daily. Heavy readers read 16 or more magazines per month. Weekly magazines quickly accumulate readership and provide timely and efficient notice to readers. KM chose the consumer magazine Jet because it is among the highest ranking in coverage of African American adults. Within the Notice Program, Jet is primarily intended to reach heirs. KM recommends:
➢ A full-page spread ad (9.75” x 6.875”) one time in Jet with an estimated circulation of 900,000. ➢ Jet is published monthly and is the leading newsweekly for the African-American community,
covering national and global news with the goal of being the most reliable and credible go-tosource offering a unique Black perspective on the latest news and entertainment.
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PAID MEDIA PLACEMENTS:
INTERNET ADVERTISING
KM recommends incorporating Internet advertising into the Notice Program in order to provide potential Class Members with additional national notice opportunities beyond the comprehensive print and radio program. Internet advertising delivers an immediate message and allows the viewer of an advertisement to instantly link to a website for further information. While many putative Class Members are not likely to be heavy Internet users, the medium can provide cost-efficient opportunities to those unidentified Class Members who do use the Internet as an information and entertainment source.
WEBSITE ADVERTISING
KM recommends placing ads on websites that are specifically targeted to the interests of Class Members, both African American interest websites as well as editorially focused farming websites, enabling maximum exposure opportunities to reach the diverse interests of the Class. (Delivery of Internet impressions to specific sites and categories within sites are subject to availability at the time of the media buy.) Banner ads will appear on the following websites:
TheGrio.com is the first video-centric news community site devoted to providing African Americans with stories and perspectives that appeal to them and are underrepresented in existing national news outlets. TheGrio.com features original and aggregated video packages, news articles, slideshows, and commentary.
BlackVoices has 4.3 million visitors to the site each month, making it the top destination for African Americans online. The site offers users a robust and comprehensive look at the issues of the African American community through insightful editorial. Users come to BlackVoices for the latest Entertainment and News stories, cultural voices and opinions, and varied social networking experiences.
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Interactive One was founded to connect, inform, entertain, and inspire the entire Black community by providing online products, programming, and services. Interactive One created a series of vertical websites that cover news, entertainment, lifestyle and faith. Online properties in the Interactive One Network include BlackPlanet.com, HelloBeautiful.com, NewsOne.com, TheUrbanDaily.com, and GIANTLife.com.
KEYWORD SEARCH ADS
Search engines are among the Internet’s most frequently used sites. In order to help search engine users locate the informational website about this case – both those specifically looking for it and those looking for related topics – KM will purchase sponsored links to appear when searchers enter certain terms. KM will contract with Google AdWords, Yahoo! Search Marketing and Bing Microsoft Advertising to have sponsored links appear on the results page of keyword/phrase searches that could include:
➢ Pigford ➢ Pigford v. Glickman ➢ Pigford case ➢ Pigford notice ➢ Black farmers ➢ Black farmers lawsuit ➢ Black farmers case ➢ Black farmers settlement ➢ African American farmers lawsuit ➢ African American farmers case ➢ African American farmers settlement ➢ African American farm loans ➢ Black farmers farm loans
The following is a sample screen shot that details the current results provided on Google’s search engine when a visitor enters the phrase “black farmers settlement” as a search term:
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After KM contracts with Google AdWords, Yahoo! Search Marketing and Bing Microsoft Advertising for sponsored links of the relevant and available keyword/phrases, a visitor entering an applicable keyword/phrase will see the following (or substantially similar) sample ad listed in the right-hand column under the Sponsored Links section:
Black Farmer Settlement Proposed settlement of a class action may affect black farmers and their heirs. http://www.BlackFarmerCase.com
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NOTICE DESIGN
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NOTICE DESIGN:
POSTCARD NOTICE
The plain language Postcard Notice (NP Appendix 4) is designed to alert Class Members to the Settlement by using a bold headline. Plain language text provides important information regarding the subject of the litigation, the Class definition, and the legal rights available to Class Members. The Postcard Notice includes all the substantive information required by Rule 23. Each postcard will prominently feature a toll-free number and website address for Class Members to obtain the Long Form Notice and other information.
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NOTICE DESIGN:
LONG FORM NOTICE
The Long Form Notice (NP Appendix 5) will be compliant with Rule 23 and consistent with the Federal Judicial Center’s “illustrative” class action notices. Specifically, the Notice will clearly and concisely state in plain, easily understood language:
➢ The nature of the action; ➢ The definition of the Class certified; ➢ The Class claims; ➢ That a Class Member may file a claim through an attorney other than Class Counsel if the
member so desires; and ➢ The binding effect of a class judgment on members under Rule 23(c)(3). The Long Form Notice will prominently feature a toll-free number and website address for Class Members to obtain more information and file a claim.
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NOTICE DESIGN:
PUBLICATION NOTICE
Rule 23(c)(2) of the Federal Rules of Civil Procedure requires class action notices to be written in “plain, easily understood language.” KM applies the plain language requirement in drafting notices in federal and state class actions. The firm maintains a strong commitment to adhering to the plain language requirement, while drawing on its experience and expertise to draft notices that effectively convey the necessary information to Class Members. The plain language Publication Notice (NP Appendix 6) is designed to alert Class Members to the litigation by using a bold headline. This headline will enable Class Members to quickly determine if they are potentially affected by the litigation. Plain language text provides important information regarding the subject of the litigation, the Class definition and the legal rights available to Class Members. Each advertisement will prominently feature a toll-free number, website, and address for the Claims Administrator so that Class Members may obtain the Long Form Notice and other information.
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In re Black Farmers Discrimination Litigation
NOTICE DESIGN:
RADIO AD
The 60-second radio advertisement (NP Appendix 7) will be designed to appeal specifically to Class Members. The radio spot will quickly alert listeners to the subject matter of the litigation and will help listeners to determine whether they may be potential Class Members, as well as inform them that they can file claims. The radio ad will prominently feature the toll-free telephone number and website address for Class Members to obtain more information and a Claim Form.
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In re Black Farmers Discrimination Litigation
NOTICE DESIGN:
WEBSITE AND INTERNET ADS
An informational interactive website is a critical component of the Notice Program. A website is a constant information source instantly accessible to millions. The site will utilize the Internet’s ability to serve as a key distribution channel and customer service bureau. Internet banner ads will help direct Class Members to the website.
WEBSITE DESIGN
Combining clean site design, consistent site navigation cues and search engine optimization, the website will provide Class Members with easy access to the details of the litigation.
➢ CLEAN DESIGN: The site will be designed for ease of navigation and comprehension, with user-friendly words and icons. A directory, located in a column on the left side of the page, will provide links to the website’s content. These links may include “Court Documents,” “Long Form Notice,” and “Questions/Links.” The website may also feature a “Frequently Asked Questions” section to answer commonly asked questions. It will also provide a toll-free number for individuals seeking additional information.
➢ CONSISTENT NAVIGATION CUES: Whenever a user goes from the homepage to another part of the site, links to the homepage and subsections remain on the left side of all pages, while the case title remains fixed at the top of each page.
INTERNET BANNER AD DESIGN
KM will design Internet banner advertisements to alert Class Members to the Proposed Settlement by using a bold headline. The headline will enable Class Members to quickly determine if they may be affected by the Settlement. When users click on the banner advertisement, they will be connected automatically to the informational website that contains complete information about their legal rights.
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In re Black Farmers Discrimination Litigation
ADDITIONAL NOTICE PROGRAM COMPONENTS
© 2011 KINSELLA MEDIA, LLC 40

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In re Black Farmers Discrimination Litigation
EARNED MEDIA PROGRAM
Earned media provides additional notice to Class Members, amplifying the paid media program. Earned media, as opposed to paid media, occurs by disseminating a message about the Settlement to the media without a guarantee that it will appear. KM will distribute the message to media outlets (newspapers, websites, and television and radio stations) hoping to spark press interest and generate coverage. The earned media outreach for this program will focus primarily on key daily newspapers, websites, wire services, national newspaper bureaus, and major television and radio outlets.
TRADITIONAL PRESS RELEASE
KM will distribute a press release on PR Newswire’s US1 national wire, reaching approximately 5,815 print and broadcast outlets and 5,500 online media outlets. The press release will highlight the toll-free telephone number and Settlement website address so that Class Members can obtain complete information. In addition, KM will distribute the press release to:
➢ PR Newswire’s “National Black Media Newsline – Opinion Leaders” wire, which reaches more than 800 Black opinion leaders, journalists, and community and social organizations nationwide.
➢ All daily and community newspapers in which KM places a Publication Notice for this case. ➢ All media outlets nationwide (as listed in the widely used subscription media outlet
database to which KM subscribes) with “Black interest” and/or “Agriculture” as one of its Outlet Subjects – print, broadcast, and online. This distribution will be by email from a KM staffer. ➢ All broadcast media outlets (as listed in the widely used subscription media outlet database to which KM subscribes) in the top 20 DMAs in which putative Class Members reside. This distribution will be by email from a KM staffer.
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In re Black Farmers Discrimination Litigation
ELECTRONIC OUTREACH
VIDEO B-ROLL PACKAGE A B-roll package consists of all of the video content a television station would need to produce their own on-air news story such as interviews, B-roll (stock) footage, and details about the Settlement and how to file a claim. The video B-roll package will be produced after the final fairness hearing. Once produced, the video B-roll package will be distributed to over 900 television stations nationwide. A network of trained bookers will personally pitch over 100 hand-selected television outlets with direct pitch calls to encourage them to use the B-roll story. In addition, a media advisory will be emailed to thousands of contacts, faxed to nearly 900 contacts covering the top 210 markets, delivered into newsroom computer terminals, released on a national press wire to 4,000 media contacts and 3,600 websites, and posted on an online press page at PR Newswire for Journalists, an exclusive journalistonly website that has over 90,000 members. In addition to any voluntary news stories produced as a result of the B-roll package distribution, there is also a guaranteed placement element via NewsUpdate. NewsUpdate is syndicated via the ION network feed in a “mini-news magazine” format program that airs on 150 affiliates nationwide. These affiliates will air the B-roll package in its entirety, reaching an audience of three million viewers.
PUBLIC SERVICE ANNOUNCEMENT
KM will produce and distribute 30- and 60-second radio Public Service Announcements (PSAs) (NP Appendix 8) to radio stations in the DMAs most likely to contain Class Members.
MESSAGE DEVELOPMENT
All earned media outreach materials will be un-biased and informative, designed to provide potential Class Members with a basic overview of the Settlement and how they can obtain further information about their rights, including how to file a claim.
FOLLOW-UP
KM and PR Newswire will place follow-up calls to encourage media outlets to participate in notice efforts.
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In re Black Farmers Discrimination Litigation
ADDITIONAL OUTREACH OPPORTUNITIES
To supplement the direct notice, paid media, and earned media in this case, KM will contact third parties whose memberships may include Class Members to encourage them to share information about the Settlement with their members. This outreach will reach some Class Members to remind them of the impending claims deadline during the claims-filing period.
KM’s third-party outreach will include contacting:
§ African-American churches § Civil rights organizations § Nonprofit organizations focused on African-American farmers § Nonprofit organizations focused on farming and agriculture generally § Farming trade associations § Educational institutions
KM has contacted key outreach targets already, in advance of preliminary approval of the Settlement, in order to receive input about notice distribution to the organizations’ members and to ascertain what materials are likely to be necessary. A layered outreach approach consisting of intensive telephone outreach to key organizations combined with a broader mailed outreach to the organizations listed above will extend the scope of the outreach efforts and help ensure the consistency of information being distributed.
All outreach materials will prominently feature a toll-free number and website address for Class Members to obtain the Long Form Notice and other information.
TELEPHONE OUTREACH
Beginning in January 2011, KM has conducted telephone outreach to contact dozens of key organizations and groups to attempt to secure their participation in the notice distribution process. Callers knowledgeable about the Notice Program are using neutral talking points about the Settlement and notice process that have been approved by Plaintiffs’ Counsel. The main goal of the calls is to encourage these organizations to share Settlement details during the claims-filing period with their affiliates on the local level in areas with high concentrations of potential Class Members. Reinforcing the notice message through a variety of channels, and encouraging accurate “word of mouth” about the Settlement and claims-filing process will help support the robust Direct Notice and Paid Media components of this Notice Program.
The groups that will primarily receive telephone outreach calls are:
§ National nonprofit organizations focused on African-American farmers; § National civil rights organizations; § National churches/religious institutions; and § Key regional agricultural organizations.
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In re Black Farmers Discrimination Litigation
MAILED OUTREACH
In addition to the intensive telephone outreach, KM has developed a database of over 6,000 potential outreach entities:
§ 4,600 African-American churches (including the Baptist, AME, AMEZ, CME, and various other churches)
§ 700 civil rights organizations (NAACP) § 8 nonprofit organizations focused on African-American farmers § 581 nonprofit organizations focused on farming and agriculture generally (including
state and county farm bureaus and agricultural extension offices) § 200 farming trade associations (including cooperatives and other organizations) § 90 Historically Black Colleges and Universities (HBCUs) Based on these lists provided by KM, the Administrator will send the outreach package to the entities on this list most likely to have contact with Class Members. The outreach package will provide basic information about the Settlement and will contain a: § Cover letter requesting that the organization share Settlement details, § Flyer suitable for posting in an office, and § Summary suitable for use in a newsletter or posting on a website.
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In re Black Farmers Discrimination Litigation
TOLL-FREE TELEPHONE SUPPORT
The Claims Administrator will establish a toll-free phone number to respond to inquiries about the Settlement as a result of Class Members seeing the media notice or receiving direct notice. The toll-free number will be prominently included in all media notices. In addition, the toll-free number will be included with any information sent to third party organizations asked to assist with outreach. The phone number will be used to answer any questions concerning the Settlement and the Notice Program. During regular business hours, the call center will be staffed by live operators to respond to calls from Class Members. After hours, a toll-free interactive voice response system (IVR) will be established to service Class Members. Callers will also be able to request assistance with claims and to leave messages for follow-up calls.
© 2011 KINSELLA MEDIA, LLC 45

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NP APPENDIX 1:
NEWSPAPERS BY DESIGNATED MARKET AREA (DMA)

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 68 of 151

NEWSPAPER DISTRIBUTION BY DESIGNATED MARKET AREA (DMA)

Type of Newspaper
Sunday Sunday Sunday Sunday Sunday African American African American Community Community Community Community Community Community Community
Community Community Community Community Community Community Community Community Community Community
Sunday Sunday African American African American African American Community Community Community Community

PRIMARY MARKETS Publication Name
Jackson, MS DMA Brookhaven Daily Leader Jackson Clarion-Ledger McComb Enterprise-Journal Natchez Democrat Vicksburg Post Jackson Advocate Mississippi Link Tylertown Times Prentiss Headlight Natchez Sun Northside Sun Lawrence County Press Fayette Chronicle Magnolia Gazette
Magee Courier / Simpson County News Copiah County Courier Port Gibson Reveille Holmes County Herald Scott County Times Northeast Ledger Rankin Ledger Madison County Herald Belzoni Banner Yazoo Herald
Memphis, TN DMA Jackson Sun Memphis Commercial Appeal Memphis Silver Star News Rolling Out Memphis Tri-State Defender Shelby Sun Times North Shelby Times East Shelby Review Fayette County Review

Circulation (if available)
6,445 83,948 10,829 10,500 13,641 8,000 16,404 3,248 2,267 7,000 11,500 2,900 1,700 1,400
6,600 6,000 2,293 2,800 5,600 13,050 47,606 14,042 1,800 3,900
36,463 177,483 28,000 41,080 26,000 16,250 50,000 2,500 5,110

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 69 of 151

Community Community Community Community Community Community Community Community Community Community Community Community Community Community Community Community Community
Sunday Sunday Sunday African American African American Community Community Community Community Community Community Community Community Community
Sunday Sunday African American Community Community Community Community Community

Fayette Falcon Batesville Advantage The Panolian Sardis Southern Reporter Bulletin-Times Democrat Extra Desoto Times Desoto County Tribune Oxford Eagle Helena Daily World Covington Leader Southern Advocate Southern Sentinel Brownsville States-Graphic Evening Times Quitman County Democrat Forrest City Times-Herald
Myrtle Beach, SC DMA Florence Morning News Myrtle Beach Sun News The Robesonian (Lumberton) Community Times Times Upstate Darlington News & Press Hartsville Messenger Florence Community Times Marlboro Herald Advocate Laurinburg Exchange Dillon Herald Marion County News Journal Horry Independent Loris Scene
Montgomery, AL DMA Montgomery Advertiser Selma Times-Journal Montgomery-Tuskegee Times Wilcox Progressive Era Maxwell-Gunter Dispatch News Record Montgomery Marion Times-Standard Troy Messenger

3,850 5,992 6,000 2,300 4,238 11,100 8,438 19,747 6,000 11,500 6,553 1,500 4,000 4,600 7,385 2,084 4,500
28,738 59,697 16,029 35,000 22,000 6,200 6,400 35,877 6,800 9,189 7,995 1,500 6,541 2,000
47,059 8,363 5,000 3,061 12,500 43,312 2,000 4,000

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 70 of 151

Community Community Community Community Community Community Community Community Community
Sunday Sunday Community Community Community Community Community Community Community
Sunday Sunday African American African American African American Community Community Community
Sunday Sunday African American African American African American Community Community Community Community Community Community Community

Demopolis Times Union Springs Herald Lowndes Signal Prattville Progress Tuskegee News Tallassee Tribune Eclectic Observer Wetumpka Herald Andalusia Star News
Hattiesburg, MS DMA Hattiesburg American Laurel Leader-Call Columbian-Progress News-Commercial Lamar Times Petal News Jasper County News Richton Dispatch Wayne County News
Charlotte, NC DMA Charlotte Observer Richmond County Daily Journal Charlotte Post Rolling Out Charlotte Savoir Faire News Cheraw Chronicle Pageland Progressive- Journal Anson Record
Birmingham, AL DMA Birmingham News Tuscaloosa News Birmingham Times Rolling Out Birmingham The Green County Democrat Greensboro Watchman Northport Gazette Western Star Chilton County News Clanton Advertiser Clanton Extra Centreville Press

2,700 2,900 1,300 8,200 4,200 4,054 1,100 4,437 3,296
19,748 7,200 5,500 3,711 4,800 2,800 2,807 1,796 4,600
231,231 8,058 23,000 52,560 30,000 6,950 4,271 6,562
164,405 34,493 16,500 44,380 3,650 2,670 4,400 10,200 2,000 4,100 8,050 4,200

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 71 of 151

Community
Sunday Sunday Sunday Sunday Sunday Sunday Sunday Sunday African American African American African American African American African American African American African American African American African American African American African American African American African American African American African American African American African American African American
Sunday Sunday Sunday Community Community Community Community Community Community Community
Sunday

St. Clair Times Chicago, IL DMA
Chicago Sun-Times Merrillville Post-Tribune (IN) Aurora Beacon-News Joliet Herald-News Elgin Courier-News Naperville Sun Lake County News-Sun The Southtown Star Austin Voice Garfield/Lawndale Voice Chicago Citizen Weekend South Suburban Citizen South End Citizen Chatham Citizen Hyde Park Citizen Chicago Defender Chicago Independent Bulletin Chicago Standard News South Suburban Standard Hyde Park Herald N’digo The North Lawndale Community News Rolling Out Chicago The People’s Voice Times Weekly Windy City Word
Columbus, MS DMA Columbus Commercial Dispatch Northeast Mississippi Daily Journal Starkville Daily News Columbus Packet Starkville Crossroads West Point Times-Leader Winston County Journal Monroe County Journal North Mississippi Herald Chickasaw Journal & Times-Post
Oklahoma City, OK DMA Oklahoma City Oklahoman

36,718
255,144 60,101 28,092 41,461 11,896 15,239 18,130 56,111 16,000 16,000 23,150 21,425 27,850 29,280 21,550 50,000 65,000 16,000 15,250 28,000 149,991 15,000 79,968 12,000 28,000 20,000
14,081 35,635 7,467 7,500 9,950 4,000 3,200 7,315 2,900 12,482
216,000

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 72 of 151

African American Community Community Community Community
Sunday Community Community Community Community Community Community
Sunday African American Community Community Community Community Community
Sunday Sunday Sunday African American Community Community Community Community Community Community
Sunday Sunday African American African American African American African American Community Community

Black Chronicle The Sun Capitol Hill Beacon Oklahoma City Friday Countywide & Sun
Meridian, MS DMA Meridian Star Sumter County Record-Journal Kemper County Messenger Neshoba Democrat Clarke County Tribune Choctaw Sun-Advocate Newton Record
Columbus, GA DMA Columbus Ledger-Enquirer Columbus Times Clayton Record Eufaula Tribune River Rambler East Alabama News Opelika-Auburn News
Huntsville, AL DMA Decatur Daily Florence Times Daily Huntsville Times Speakin’ Out News Colbert County Reporter Madison County Record Hartselle Enquirer Florence Courier Journal East Lauderdale News Athens News-Courier
Mobile, AL DMA Mobile Press-Register Pensacola News Journal Mobile Beacon New American Press Pensacola Times Pensacola Voice Citronelle Call News Clarke County Democrat

31,088 3,300 46,400 8,282 1,965
15,131 5,125 2,050 7,496 3,100 5,100 3,300
39,841 10,240 2,500 5,500 6,750 21,493 16,241
23,547 28,416 67,670 25,700 3,600 4,000 7,366 67,464 4,500 7,639
111,652 60,040 7,000 34,985 44,569 38,000 12,500 4,500

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 73 of 151

Community Community Community Community
Sunday African American African American African American Community Community Community
Sunday Community Community Community Community Community
Sunday African American African American Community Community Community Community
Sunday Sunday African American African American Community Community Community
African American African American African American African American African American

Thomasville Times Evergreen Courant Monroe Journal Greene County Herald
New Orleans, LA DMA New Orleans Times-Picayune Data News Weekly Louisiana Weekly New Orleans Tribune The Era-Leader Ponchatoula Times St. Tammany News
Dothan, AL DMA Dothan Eagle Geneva County Reaper Abbeville Herald Southern Star Elba Clipper Enterprise Ledger
Albany, GA DMA
Albany Herald Albany Southwest Georgian South Georgia Journal Douglas Enterprise Atkinson County Citizen Ocilla Star Herald-Leader
Columbia, SC DMA Sumter Item The State Black News Carolina Panorama Northeast News Manning Times Lee County Observer
New York, NY DMA African American Observer Afro Times Black Star News The Community Journal The Culvert Chronicles

3,400 3,831 7,900 2,900
189,682 25,000 6,500 20,000 4,200 7,300 35,000
35,040 2,531 2,350 4,500 3,181 10,000
21,430 16,000 89,200 7,794 1,425 2,200 5,395
18,679 125,149 50,000 15,000 10,000 4,000 3,147
69,000 57,004 30,000 10,000 60,000

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 74 of 151

African American African American African American African American African American African American African American African American African American African American African American African American African American African American African American
Sunday Sunday African American African American African American Community Community Community Community
African American African American African American African American African American African American African American African American African American African American African American African American African American African American African American

Daily Challenge Harlem News Group Hudson Valley Black Press New American New York Amsterdam News New York Beacon The New York Journal New York Page New York Trend Our Time Point Of View Positive Community Rolling Out New York Rolling Out Newark Westchester County Press
Greenville, NC DMA Greenville Daily Reflector New Bern Sun Journal Carolina Today Daily Drum Greenville Times Duplin Times & Duplin Today Wallace Enterprise Warsaw-Faison News Jacksonville Daily News
Los Angeles, CA DMA Black Business News Black Voice News California Crusader News Compton Bulletin Healthier You Inglewood Today Inland Valley News L.A Bay Observer Bakersfield Observer San Fernando & Antelope Valley Observer L.A. Scoop L.A. Watts Times Weekender Long Beach Times Los Angeles Sentinel Metropolis

81,000 50,000 42,000 60,137 17,477 54,000 65,000 40,000 42,000 20,000 10,000 50,000 92,841 55,205 10,000
20,551 15,261 10,000 10,000 7,000 13,600 7,376 4,297 19,723
35,000 10,000 20,000 26,533 15,000 25,000 18,500 30,000 2,800 44,000 50,000 50,000 15,000 25,000 35,000

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 75 of 151

African American African American African American African American African American African American African American African American African American African American African American African American African American African American
Sunday African American African American African American African American African American African American Community Community Community Community Community Community Community Community Community Community Community
Sunday Sunday Sunday Sunday African American African American African American

Our Weekly Precinct Reporter Tri-County Bulletin Long Beach Leader Rolling Out Los Angeles San Bernardino American The Pasadena Journal West Wave Northeast Wave Herald American The Press Lynwood Press East Wave Westside Story
Atlanta, GA DMA Atlanta Journal Constitution Atlanta Daily World Atlanta Inquirer Atlanta Tribune Atlanta Voice Cross Roads News Rolling Out Atlanta Dunwoody Crier Champion Newspaper Doraville / Chamblee Neighbor Alpharetta/Milton Neighbor Atlanta News Leader Gwinnett Daily Post Clayton Neighbor North Cobb Neighbor East Cobb Neighbor South Cobb Neighbor Smyrna Neighbor
Raleigh, NC DMA Clinton Sampson Independent Durham Herald Sun Fayetteville Observer Raleigh News & Observer The Carolina Times The Carolinian The Fayetteville Press

50,000 35,000 20,000 20,000 78,710 10,000 10,000 102,500 8,000 7,000 4,600 3,900 14,000 10,000
435,819 10,000 40,000 35,000 27,882 26,000 69,531 23,500 23,313 10,050 11,700 14,015 64,197 37,534 22,770 44,123 23,700 9,100
7,703 29,251 60,151 194,933 6,000 15,250 7,000

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 76 of 151

African American Community Community Community Community Community
Sunday African American Community Community Community Community Community Community Community Community Community
African American African American African American Community Community Community Community Community Community Community
African American
African American African American
African American Community Community

Triangle Tribune Durham News Eastern Wake News Goldsboro News-Argus Mount Olive Tribune Hoke County News Journal
Little Rock, AR DMA Arkansas Democrat-Gazette Lincoln Echo North Little Rock Times Pine Bluff Commercial Dumas Clarion McGehee Dermott Times-News Brinkley Argus Monroe County Sun Woodruff County Monitor-Leader-Advocate De Witt Era-Enterprise Stuttgart Daily Leader
SECONDARY MARKETS Detroit, MI DMA
B.L.A.C. Magazine Michigan Chronicle Rolling Out Detroit Belleville Enterprise Canton Observer Dearborn Times-Herald Sunday Times Berkley & Huntington Woods Mirror Birmingham Eccentric Birmingham-Bloomfield Eagle
Houston, TX DMA
African American News & Issues (Greater Houston Gulf Coast, Southeast Texas) African American News And Issues Metroplex Texas Edition Rolling Out Houston
Tulsa, OK DMA Oklahoma Eagle Okmulgee Daily Times Muskogee Daily Phoenix
Baton Rouge, LA DMA

20,000 70,500 17,000 21,471 4,069 4,100
270,179 13,387 5,328 19,022 3,250 3,400 2,200 1,440 2,294 3,125 2,581
30,000 28,314 70,151 2,263 11,906 26,267 7,807 9,172 16,703 34,072
250,000
150,000 67,660
5,000 8,200 15,002

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 77 of 151

African American Community
Community Community Community Community Community
African American African American Community Community
African American African American Community Community Community
African American African American African American African American
African American Community Community
African American African American African American Community Community
Community Community Community Community

Baton Rouge Weekly Press Woodville Republican
Greenwood, MS DMA Delta Democrat-Times Greenwood Commonwealth Bolivar Commercial Enterprise Tocsin Grenada Daily Star
Monroe, LA DMA Monroe Dispatch Monroe Free Press Smackover Journal Concordia Sentinel
Wilmington, NC DMA Greater Diversity News Wilmington Journal Whiteville News Reporter Pender Chronicle Bladen Journal
Washington, DC DMA Metro Herald Rolling Out Washington D.C. Washington Afro-American Baltimore Afro-American
Charleston, SC DMA Charleston Chronicle Hemingway Weekly Observer Kingstree News
Dallas, TX DMA African-American News & Issues Metroplex-North, Texas Edition Rolling Out Dallas Elite News Weekly Livestock Reporter Paris News
Flint, MI DMA Tri-County Citizen Tri-County Times Mt. Morris / Clio Herald Flint Township News
Macon, GA DMA

7,500 2,675
10,360 7,407 6,299 6,124 5,900
12,000 14,400 1,086 4,500
5,000 10,000 11,235 5,536 4,400
42,000 61,638 7,211 7,179
6,000 2,336 4,800
150,000 63,768 50,000 10,000 10,000
19,686 13,875 25,821 12,342

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 78 of 151

African American African American Community Community
African American African American African American
African American
Community
African American African American Community
Community Community
African American African American African American
African American Community
African American African American African American African American African American African American African American Community Community Community Community Community
African American

Georgia Informer Macon Courier Houston Daily Journal Citizen Georgian
Miami, FL DMA Community Voice Rolling Out Miami Westside Gazette South Florida Times (formerly Broward Times)
Beaumont-Port Arthur, TX DMA Port Arthur News
Milwaukee, WI DMA Milwaukee Community Journal Milwaukee Courier Milwaukee Post
Biloxi-Gulfport, MS DMA Biloxi Sun Herald
Ocean Springs Record - Gautier Independent Philadelphia, PA DMA
Rolling Out Philadelphia Philadelphia Tribune - Metro Edition Scoop USA
Tallahassee, FL DMA Capital Outlook Valdosta Daily Times
San Francisco, CA DMA Rolling Out San Francisco Bay Area Oakland Post Berkeley Tri-City Post Richmond Post San Francisco Post South County Post Marin County Alameda Sun Castro Valley Forum Alameda Journal The Montclarion Pleasanton Weekly
Cleveland, OH DMA Rolling Out Cleveland

20,000 17,300 13,000 3,300
12,000 65,928 30,000
26,000
15,554
39,000 40,000 26,492
49,000 3,200
70,203 68,873 32,000
15,000 20,800
65,350 30,000 6,000 6,000 6,000 6,000 6,000 20,000 22,500 24,500 30,000 18,000
55,818

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 79 of 151

African American
African American African American
African American African American Community Community Community
African American African American Community
African American African American Community Community
Community Community Community
African American Community Community
African American African American

City News St. Louis, MO DMA
St. Louis American Rolling Out St. Louis
Greensboro, NC DMA The Carolina Peacemaker The Chronicle Charlotte Post Kernersville News Winston-Salem Chronicle
Tampa, FL DMA Tempo News Florida Sentinel Bulletin Farm & Ranch News
Jacksonville, FL DMA Florida Star Jacksonville Free Press Mayport Mirror Blackshear Times
Sherman, OK DMA Choctaw County Times Hugo Daily News Daily Ardmoreite
Lafayette, LA DMA Gumbeaux Magazine Breaux Bridge Marketplace Teche News
Savannah, GA DMA Savannah Herald Savannah Tribune

50,000
70,000 64,736
6,056 7,642 20,378 6,000 10,500
40,000 23,000 17,964
8,500 38,500 10,000 3,620
1,729 2,899 9,800
10,000 12,185 5,500
12,000 15,000

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 80 of 151
NP APPENDIX 2:
RADIO STATIONS

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 81 of 151

Station
WELZ-AM WEMX-FM WGNG-FM WKXI-FM WKXI-FM WMIS-AM WOAD-AM WOAD-AM WONG-AM WTYJ-FM
KAKJ-FM KCLT-FM KJMS-FM WAID-FM WDIA-AM WDIA-AM WKRA-AM WLOK-AM WNEV-FM WRBO-FM WZAZ-AM
WBZF-FM WCCG-FM WCMG-FM WDAI-FM WDSC-AM WJAY-AM WJNI-FM WPJS-AM WWDM-FM WWRK-AM

RADIO BY DESIGNATED MARKET AREA (DMA)

Format

Network or Local Programming Placement

PRIMARY MARKETS Jackson, MS DMA

Blues

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Rhythmic-Contemporary Radio Hits Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Blues

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Local Programming

Black Gospel

Network Programming (AURN)

Blues

Network Programming (AURN)

Memphis, TN DMA

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Black Gospel

Network Programming (AURN)

Black Gospel

Local Programming

Urban Adult Contemporary

Network Programming (AURN)

R&B Oldies

Local Programming

Black Gospel

Network Programming (AURN)

Myrtle Beach, SC DMA

Black Gospel Urban Contemporary

Network Programming (AURN) Network Programming (AURN)

Rock

Network Programming (AURN)

Urban Contemporary

Local Programming

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Local Programming

Urban Adult Contemporary

Local Programming

Black Gospel

Network Programming (AURN)

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 82 of 151

WZFX-FM WZTF-FM
WAPZ-AM WAPZ-AM WJAM-AM WJUS-AM WJWZ-FM WMRK-FM WTHB-FM WTUG-FM WWMG-FM WWMG-FM WXVI-AM WZNJ-FM
WGDQ-FM WGOK-AM WJKX-FM WJKX-FM WJMG-FM WKXI-FM WKXI-FM WORV-AM
WFXC-FM WGIV-AM WPZS-FM WPZS-FM WQNC-FM WQNC-FM
WAGG-AM WAGG-AM WATV-AM WBHK-FM WJLD-AM WMGJ-AM WMXB-AM

Urban Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Montgomery, AL DMA

R&B Oldies

Network Programming (AURN)

R&B Oldies

Local Programming

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

News/Talk

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Gospel Music

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Hattiesburg-Laurel, MS DMA

R&B Oldies

Local Programming

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Urban Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Black Gospel

Network Programming (AURN)

Charlotte, NC DMA

Urban Adult Contemporary

Local Programming

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (Radio One)

Black Gospel

Local Programming

R&B Oldies

Network Programming (Radio One)

R&B Oldies

Local Programming

Birmingham, AL DMA

Black Gospel

Network Programming (AURN)

Black Gospel

Local Programming

R&B Oldies

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Blues

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 83 of 151

WPJM-AM WTUG-FM WWPG-FM
WGCI-FM WGRB-AM WKKV-FM WSRB-FM WSRB-FM WVAZ-FM WVON-AM WVON-AM
WACR-FM WACR-FM WAJV-FM WAJV-FM WESE-FM WGNG-FM WKMQ-AM WMSU-FM WMXU-FM WTUG-FM WTUP-AM WTWG-AM WWKZ-FM WWZD-FM WZKS-FM
KACO-FM KRMP-AM KRMP-AM KVSP-FM KVSP-FM
WHTU-FM WJDQ-FM WJKX-FM WKXI-FM

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Chicago, IL DMA

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Urban Adult Contemporary

Network Programming (AURN)

Talk

Network Programming (AURN)

Talk

Local Programming

Columbus, MS DMA

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Black Gospel

Network Programming (AURN)

Black Gospel

Local Programming

Urban Contemporary

Network Programming (AURN)

Rhythmic-Contemporary Radio Hits Network Programming (AURN)

Talk

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Sports

Network Programming (AURN)

Talk

Network Programming (AURN)

Contemporary Radio Hits

Network Programming (AURN)

Country

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Oklahoma City, OK DMA

Classic Country

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Local Programming

Meridian, MS DMA

Rhythmic-Contemporary Radio Hits Network Programming (AURN)

Hot Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 84 of 151

WKXI-FM WMSO-FM WNBN-AM WNBN-AM WSLY-FM WTUG-FM WYHL-AM WZKS-FM WZKS-FM WZNJ-FM
WAGH-FM WALR-FM WEAM-FM WFXE-FM WJIZ-FM WKZJ-FM WLEL-FM WMRZ-FM
WEUP-AM WEUP-AM WEUP-FM WEUP-FM WHRP-FM WLAY-AM WLAY-FM WMSR-FM WMXV-FM WVNA-AM WZZA-AM
WDLT-FM WDLT-FM WFTH-AM WGOK-AM WGOK-AM WRNE-AM WXQW-AM

Urban Adult Contemporary

Local Programming

Country

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Local Programming

Sports

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Urban Adult Contemporary

Network Programming (AURN)

Columbus, GA DMA

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Local Programming

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Huntsville-Decatur, AL DMA

Black Gospel

Network Programming (AURN)

Black Gospel

Local Programming

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Local Programming

Urban Adult Contemporary

Local Programming

Rock/Blues/Local Sounds

Network Programming (AURN)

Country

Network Programming (AURN)

Contemporary Radio Hits

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

News/Talk

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Mobile, AL DMA

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Local Programming

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 85 of 151

KMEZ-FM WBOK-AM WBOK-AM WEMX-FM WPRF-FM WYLD-AM
WAGF-AM WAGF-FM WAGF-FM WJIZ-FM WJJN-FM WORV-AM
WHLJ-FM WJIZ-FM WJYZ-AM WJYZ-AM WMRZ-FM WMRZ-FM WQVE-FM WSTI-FM WWIL-AM WZBN-FM
WBZF-FM WFMV-FM WFMV-FM WGCV-AM WGCV-AM WHXT-FM WJBS-AM WLJI-FM WWDM-FM WXBT-FM
WBLS-FM WBLS-FM

New Orleans, LA DMA

Urban Adult Contemporary

Local Programming

Talk

Network Programming (AURN)

Talk

Local Programming

Urban Contemporary

Network Programming (AURN)

Black Gospel

Local Programming

Black Gospel

Network Programming (AURN)

Dothan, AL DMA

Talk

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Albany, GA DMA

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Local Programming

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Columbia, SC DMA

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Local Programming

Black Gospel

Network Programming (AURN)

Black Gospel

Local Programming

Urban Contemporary

Network Programming (AURN)

Gospel Music

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Urban Contemporary

Network Programming (AURN)

New York, NY DMA

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 86 of 151

WLIB-AM WLIB-AM WRKS-FM WWRL-AM
WANS-AM WELS-FM WFGN-AM WFXC-FM WIKS-FM WJPI-AM WOOW-AM WPJM-AM WVOT-AM WZFX-FM
KDAY-FM KDAY-FM KJLH-FM
KDYA-AM WALR-FM WAMJ-FM WAMJ-FM WAOK-AM WGJK-AM WHAT-FM WIGO-AM WPZE-FM WPZE-FM WTJH-AM WXAG-AM
WAUG-AM WBOB-FM WCCG-FM WFMC-AM WFXC-FM WFXC-FM

Black Gospel

Network Programming (AURN)

Black Gospel

Local Programming

Urban Adult Contemporary

Network Programming (AURN)

Talk

Network Programming (AURN)

Greenville-New Bern, NC DMA

Talk

Network Programming (AURN)

Black Gospel

Local Programming

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Urban Adult Contemporary

Local Programming

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Los Angeles, CA DMA

R&B Oldies

Network Programming (AURN)

R&B Oldies

Local Programming

Urban Adult Contemporary

Local Programming

Atlanta, GA DMA

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (Radio One)

Urban Adult Contemporary

Local Programming

News/Talk

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Mainstream/Urban

Network Programming (Radio One)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (Radio One)

Black Gospel

Local Programming

Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Raleigh-Durham, NC DMA

Talk

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (Radio One)

Urban Adult Contemporary

Local Programming

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 87 of 151

WFXK-FM WGTM-AM WIKS-FM WJTB-AM WNNL-FM WNNL-FM WPZS-FM WQOK-FM WSSG-AM WZFX-FM
KOKY-FM KRKD-FM KPZK-FM KVDW-AM
WCHB-AM WDMK-FM WHTD-FM
KANI-AM KBXX-FM KMJQ-FM KROI-FM KWWJ-AM
KEOR-AM KGTO-AM KJMM-FM
KBZE-FM KCLF-AM WEMX-FM WYLD-AM
WAID-FM WBAD-FM WCLD-FM

Urban Adult Contemporary

Network Programming (Radio One)

Religious

Network Programming (AURN)

Urban Adult Contemporary

Local Programming

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (Radio One)

Black Gospel

Local Programming

Black Gospel

Local Programming

Mainstream/Urban

Network Programming (Radio One)

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Little Rock, AR DMA

Urban Adult Contemporary

Local Programming

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Local Programming

Southern Gospel

Network Programming (AURN)

SECONDARY MARKETS

Detroit, MI DMA

News Talk

Network Programming (Radio One)

Urban Adult Contemporary

Network Programming (Radio One)

Hip-Hop

Network Programming (Radio One)

Houston, TX DMA

Religious Teaching

Network Programming (AURN)

Urban

Network Programming (Radio One)

Urban Adult Contemporary

Network Programming (Radio One)

Contemporary Inspiration

Network Programming (Radio One)

Black Gospel

Network Programming (AURN)

Tulsa, OK DMA

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Baton Rouge, LA DMA

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Greenwood, MS DMA

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 88 of 151

WDIA-AM WESY-AM WGNG-FM WGNL-FM
KMLK-FM
WLEL-FM WVOE-AM WWIL-AM WZFX-FM
WHUR-HD WKYS-FM WMMJ-FM WOL-AM WPRS-FM WYCB-AM
KRMY-AM WIIZ-FM WJNI-FM WLMC-AM WSCC-FM
KBFB-FM KSOC-FM
WDZZ-FM WFLT-AM WOWE-FM WWCK-FM
WALR-FM WDDO-AM WEAS-FM WIBB-AM WJIZ-FM WLEL-FM

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Rhythmic-Contemporary Radio Hits Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Monroe, LA-El Dorado, TX DMA

Urban Adult Contemporary

Network Programming (AURN)

Wilmington, NC DMA

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Washington, DC DMA

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary.

Network Programming (Radio One)

Urban Adult Contemporary

Network Programming (Radio One)

Talk

Network Programming (Radio One)

Black Gospel

Network Programming (Radio One)

Gospel

Network Programming (Radio One)

Charleston, SC DMA

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Talk

Network Programming (AURN)

Dallas, TX DMA

Mainstream/Urban

Network Programming (Radio One)

Urban Adult Contemporary

Network Programming (Radio One)

Flint, MI DMA

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

R&B Oldies

Network Programming (AURN)

Contemporary Radio Hits

Network Programming (AURN)

Macon, GA DMA

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Talk

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 89 of 151

WQMJ-FM WTHB-FM WXVI-AM
WMIA-FM
KTCX-FM KIKR-AM
WKKV-FM WMCS-AM
WDLT-FM WGOK-AM WJZD-FM WTMN-AM WYLD-AM WILD-AM
WDAS-FM WJKS-FM WPHI-FM WPPZ-FM WRNB-FM WUBA-AM WURD-AM
WDSC-AM WGOV-AM WHBT-AM WHLJ-FM WJIZ-FM WSTI-FM WWLD-FM WWSD-AM
KBLX-FM KDYA-AM

R&B Oldies

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Gospel Music

Network Programming (AURN)

Miami, FL DMA

Rhythmic AC

Network Programming (AURN)

Beaumont, TX DMA

Urban Contemporary

Network Programming (AURN)

Regional Mexican

Network Programming (AURN)

Milwaukee, WI DMA

Urban Contemporary

Network Programming (AURN)

Talk

Network Programming (AURN)

Biloxi-Gulfport, MS DMA

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Talk

Network Programming (Radio One)

Philadelphia, PA DMA

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Hip-Hop/R&B

Network Programming (Radio One)

Inspiration

Network Programming (Radio One)

R&B

Network Programming (Radio One)

Tropical

Network Programming (AURN)

Talk

Network Programming (AURN)

Tallahassee-Thomasville, FL DMA

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Gospel

Network Programming (AURN)

San Francisco, CA DMA

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Cleveland, OH DMA

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 90 of 151

WENZ-FM WERE-AM WJMO-AM WJMO-AM WJTB-AM WSIR-AM WZAK-FM
KATZ-AM KMJM-FM WFUN-FM WHHL-FM WQQX-AM
WKEW-AM WLQM-AM WPOL-AM
WSIR-AM WTMP-AM WZHR-AM
WKEW-AM WZAZ-AM
KBZE-FM KJCB-AM KKST-FM KRRQ-FM KVTZ-FM WEMX-FM
WEAS-FM WLVH-FM WQBT-FM WSOK-AM WVGB-AM

Hip-Hop/R&B

Network Programming (Radio One)

Talk

Network Programming (Radio One)

Inspiration

Network Programming (Radio One)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

R&B

Network Programming (Radio One)

St Louis, MO DMA

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (Radio One)

Mainstream/Urban

Network Programming (Radio One)

Adult Standards

Network Programming (AURN)

Greensboro, NC DMA

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Tampa-St. Petersburg, FL DMA

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Southern Gospel

Network Programming (AURN)

Jacksonville, FL DMA

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Lafayette, LA DMA

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Variety

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Savannah, GA DMA

Urban Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

NON-TARGETED MARKETS

Alexandria, LA DMA

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 91 of 151

KBCE-FM KKST-FM KMXH-FM KRRQ-FM
WAAW-FM WAEG-FM WAKB-FM WFMV-FM WFXA-FM WHXT-FM WIIZ-FM WKZK-AM WTHB-AM WTHB-FM
WERQ-FM WHUR-HD WKYS-FM WOLB-AM WPRS-FM WWIN-AM WWIN-FM
WAGF-FM WPRT-HD
WBLK-FM WKRA-AM WUFO-AM
KBBG-FM
WBCP-AM
WPZZ-FM
WMPZ-FM WNOO-AM

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Augusta, GA DMA

Black Gospel

Network Programming (AURN)

Smooth Jazz

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Baltimore, MD DMA

Urban

Network Programming (Radio One)

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Black Talk

Network Programming (Radio One)

Black Gospel

Network Programming (AURN)

Gospel

Network Programming (Radio One)

Urban Adult Contemporary

Network Programming (Radio One)

Bowling Green, KY DMA

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Buffalo, NY DMA

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Cedar Rapids, IA DMA

Variety

Network Programming (AURN)

Champaign, IL DMA

Urban Adult Contemporary

Network Programming (AURN)

Charlottesville DMA

Black Gospel

Network Programming (AURN)

Chattanooga, TN DMA

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Cincinnati, OH DMA

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 92 of 151

WDBZ-AM WDHT-FM WIZF-FM WMOJ-FM
WCKX-FM WDHT-FM WJYD-FM WXMG-FM
KNDA-FM
WDHT-FM
KJMC-FM
WBLK-FM
WEOA-AM
WAGF-FM WTMN-AM
WVHF-AM
WNNK-HD
WHHH-FM WNOU-FM WTLC-AM WTLC-FM
WFKX-FM WLCD-FM WOJG-FM
KJMS-FM
KGGN-AM

Talk

Network Programming (Radio One)

Rhythmic-Contemporary Radio Hits Network Programming (AURN)

Rhythmic-Contemporary Radio Hits Network Programming (Radio One)

Rhythmic-Contemporary Radio Hits Network Programming (Radio One)

Columbus, OH DMA

Mainstream Urban

Network Programming (Radio One)

Rhythmic-Contemporary Radio Hits Network Programming (AURN)

Gospel

Network Programming (Radio One)

R&B Oldies

Network Programming (Radio One)

Corpus Christi, TX DMA

Rhythmic-Contemporary Radio Hits Network Programming (AURN)

Dayton, OH DMA

Rhythmic-Contemporary Radio Hits Network Programming (AURN)

Des Moines, IA DMA

Urban Contemporary

Network Programming (AURN)

Erie, PA DMA

Urban Contemporary

Network Programming (AURN)

Evansville, IN DMA

Urban Adult Contemporary

Network Programming (AURN)

Gainesville, FL DMA

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Grand Rapids, MI DMA

Religious

Network Programming (AURN)

Harrisburg, PA DMA

Hot AC

Network Programming (AURN)

Indianapolis, IN DMA

Rhythmic-Contemporary Radio Hits Network Programming (Radio One)

Contemporary Radio Hits

Network Programming (Radio One)

Contemporary Gospel

Network Programming (Radio One)

Urban Adult Contemporary

Network Programming (Radio One)

Jackson, TN DMA

Urban Contemporary

Network Programming (AURN)

College

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Jonesboro, AR DMA

Urban Adult Contemporary

Network Programming (AURN)

Kansas City, KS DMA

Black Gospel

Network Programming (AURN)

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 93 of 151

KPRS-FM KPRT-AM
KJCB-AM KKST-FM KRRQ-FM KTCX-FM
WQHH-FM WWSJ-AM
WKVO-FM
WDHT-FM
WGZB-FM
KBTE-FM
KMOJ-FM
KRML-AM
WBOB-FM WPRT-HD WQQK-FM
WCPK-AM WGPL-AM WLQM-AM WMXB-AM
WOKB-AM WPUL-AM
WAGF-FM WHLJ-FM WJJN-FM

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Lake Charles, LA DMA

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Lansing, MI DMA

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Lexington, KY DMA

Contemporary Christian

Network Programming (AURN)

Lima, OH DMA

Rhythmic-Contemporary Radio Hits Network Programming (AURN)

Louisville, KY DMA

Urban Contemporary

Network Programming (AURN)

Lubbock, TX DMA

Rhythmic-Contemporary Radio Hits Network Programming (AURN)

Minneapolis, MN DMA

Urban Contemporary

Network Programming (AURN)

Monterey-Salinas, CA DMA

Jazz

Network Programming (AURN)

Nashville, TN DMA

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Norfolk, VA DMA

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Orlando, FL DMA

Black Gospel

Network Programming (AURN)

Talk

Network Programming (AURN)

Panama City, FL DMA

Urban Adult Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Pittsburgh, PA DMA

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 94 of 151

WGBN-AM
KBMS-AM
WCDX-FM WFTH-AM WKJM-FM WKJS-FM WPZZ-FM WTPS-AM WUFO-AM WYTT-FM
WKBY-AM WPZZ-FM WQOK-FM WTOY-AM WXQW-AM
WGCI-FM
KBLX-FM
KRIZ-AM KZIZ-AM
KBEF-FM KBTT-FM KDKS-FM KMJJ-FM KOKA-AM KVMA-FM KZRB-FM
WUBS-FM WUBU-FM
WIMX-FM WJZE-FM

Black Gospel

Network Programming (AURN)

Portland, OR DMA

Urban Adult Contemporary

Network Programming (AURN)

Richmond, VA DMA

Urban Contemporary

Network Programming (Radio One)

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (Radio One)

Urban Adult Contemporary

Network Programming (Radio One)

Black Gospel

Network Programming (Radio One)

Talk

Network Programming (Radio One)

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Roanoke, VA DMA

Black Gospel

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Rockford, IL DMA

Urban Contemporary

Network Programming (AURN)

Sacramento, CA DMA

Urban Adult Contemporary

Network Programming (AURN)

Seattle, WA DMA

Talk

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Shreveport, LA DMA

Contemporary Christian

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Black Gospel

Network Programming (AURN)

R&B Oldies

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

South Bend, IN DMA

Black Gospel

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Toledo, OH DMA

Urban Adult Contemporary

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Topeka, KS DMA

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 95 of 151

KPRS-FM
KGLD-AM
KBEF-FM KBXT-FM KRMY-AM KWBT-FM
KACO-FM KDDQ-FM KJMZ-FM KKEN-FM KKRX-AM KPNS-AM KVSP-FM KXCA-AM
WASN-AM WENZ-FM

Urban Contemporary

Network Programming (AURN)

Tyler-Longview, TX DMA

Black Gospel

Network Programming (AURN)

Waco, TX DMA

Contemporary Christian

Network Programming (AURN)

Rhythmic-Contemporary Radio Hits Network Programming (AURN)

Black Gospel

Network Programming (AURN)

Rhythmic-Contemporary Radio Hits Network Programming (AURN)

Wichita Falls, OK DMA

Classic Country

Network Programming (AURN)

Classic Rock

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Classic Country

Network Programming (AURN)

Urban Adult Contemporary

Network Programming (AURN)

Talk

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Sports

Network Programming (AURN)

Youngstown, OH DMA

Black Gospel

Network Programming (AURN)

Urban Contemporary

Network Programming (AURN)

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 96 of 151
NP APPENDIX 3:
NEWSPAPERS CARRYING AMERICAN PROFILE SUPPLEMENT

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 97 of 151

NEWSPAPERS CARRYING AMERICAN PROFILE SUPPLEMENT

NEWSPAPERS CARRYING AMERICAN PROFILE SUPPLEMENT

State AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AL AR AR AR

Primary Market Albertville
Alexander City Alexander City
Andalusia Athens Atmore
Bay Minette Brewton Centre Cullman Daphne Demopolis Dothan Eufaula Fairhope Fayette Fayette Foley Foley Fort Payne
Gardendale Gulf Shores
Jasper Leeds Opelika Ozark Pell City Robertsdale Scottsboro Tallassee Troy Wetumpka Wetumpka Ashdown Atkins Atkins

Newspaper Name The Sand Mountain Reporter
The Dadeville Times The Outlook
The Andalusia Star-News The Athens News Courier
The Atmore Advance The Baldwin Times The Brewton Standard Cherokee County Herald The Cullman Times
The Bulletin The Demopolis Times
The Dothan Eagle The Eufaula Tribune
Fairhope Courier The Times-Record Pickens County Herald Elberta-Lillian Ledger The Foley Onlooker The Times-Journal North Jefferson News
The Islander Daily Mountain Eagle
The Leeds News Opelika-Auburn News
The Southern Star St. Clair News-Aegis
The Independent The Daily Sentinel The Tallassee Tribune
The Messenger The Eclectic Observer The Wetumpka Herald
Little River News Atkins Chronicle The Dover Times

Circulation 10,000 1,583 4,100 4,431 7,300 3,200 1,150 3,000 2,437 11,000 1,150 6,000 35,700 5,582 1,150 5,000 5,000 1,125 1,150 6,467 3,482 1,125 11,044 2,288 14,800 4,060 2,786 1,150 5,074 3,000 3,349 2,000 4,600 3,045 2,000 1,948

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 98 of 151

AR

Batesville

AR

Benton

AR

Bentonville

AR

Berryville

AR

Booneville

AR

Charleston

AR

Cherokee Village

AR

Conway

AR

Danville

AR

Greenwood

AR

Harrison

AR

Heber Springs

AR

Helena

AR

Hope

AR

Hope

AR

Malvern

AR

Manila

AR

Mountain View

AR

Nashville

AR

Newport

AR

Osceola

AR

Paris

AR

Piggott

AR

Rector

AR

Salem

AR

Salem

AR

Stuttgart

AR

Trumann

AR

Van Buren

AR

West Memphis

AR

White Hall

AZ

Benson

AZ

Bullhead City

AZ

Cottonwood

AZ

Cottonwood

AZ

Douglas

AZ

Globe

AZ

Green Valley

AZ

Green Valley

AZ

Holbrook

AZ

Kingman

Batesville Daily Guard The Benton Courier The Weekly Vista Carroll County News Booneville Democrat Charleston Express The Villager Journal Log Cabin Democrat Yell County Record Greenwood Democrat
Newton County Times Cleburne County Sun-Times Helena-West Helena Daily World
Hope Star The Daily Siftings Herald
Malvern Daily Record Northeast Arkansas Town Crier
Stone County Leader Nashville News
Newport Independent The Osceola Times Paris Express Piggott Times
Clay County Democrat Alma Journal The News Daily Leader
Poinsett County Democrat Tribune Van Buren Press Argus-Courier Evening Times The White Hall Journal San Pedro Valley News-Sun Mohave Valley Daily News The Bugle The Verde Independent The Daily Dispatch Arizona Silver Belt Green Valley News & Sun The Sahuarita News and Sun Holbrook Tribune-News The Kingman Daily Miner

10,149 8,119 4,466 3,100 2,874 1,916 2,985 11,164 3,552 1,421 1,500 4,975 4,050 3,045 3,045 4,377 2,100 4,263 3,000 2,239 2,537 2,792 2,100 1,400 750 3,349 2,985 1,800 3,000 8,627 2,350 3,045 9,134 2,500 2,574 4,080 3,500 10,200 6,630 2,290 8,525

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 99 of 151

AZ

Lake Havasu City

Lake Havasu Today's News-Herald

11,000

AZ

Mesa

Chandler Tribune/East Valley Tribune

98,000

AZ

Parker

Parker Pioneer

5,000

AZ

Phoenix

Ahwatukee Foothills News

28,280

AZ

Prescott

The Prescott Daily Courier

15,750

AZ

Safford

Eastern Arizona Courier

6,900

AZ

Sedona

Sedona Red Rock News

6,000

AZ

Show Low

White Mountain Independent

10,000

AZ

Sierra Vista

Sierra Vista Herald

10,710

AZ

Sun City

Sun City News-Sun

12,444

AZ

Sun City

Glendale-Peoria Today

34,170

AZ

Sun City

Surprise Today

40,290

AZ

Wickenburg

Wickenburg Sun

2,537

AZ

Willcox

Arizona Range News

3,146

AZ

Williams

Williams-Grand Canyon News

3,482

CA

Altaville

The Sierra Sentinel

1,000

CA

Blythe

Palo Verde Valley Times/Quartzsite Times

4,060

CA

Burney

Intermountain News

1,050

CA

Chester

Chester Progressive

2,440

CA

Chico

Chico Enterprise-Record

28,000

CA

El Centro

Imperial Valley Press

11,500

CA

Escalon

Escalon Times

1,800

CA

Eureka

Eureka Times Standard

19,500

CA

Exeter

The Exeter Sun/The Foothills Sun Gazette

3,000

CA

Fairfield

Daily Republic

18,805

CA

Fort Bragg

Fort Bragg Advocate News

5,074

CA

Gilroy

The Dispatch

4,432

CA

Grass Valley

The Union

17,000

CA

Greenville

Indian Valley Record

1,498

CA

Gridley

The Gridley Herald

2,500

CA

Hollister

Free Lance

3,542

CA

Holtville

Holtville Tribune

3,045

CA

Holtville

Calexico Chronicle

1,287

CA

Holtville

Imperial Valley Weekly

1,250

CA

Inyo

Inyo Register

4,872

CA

Jackson

Amador Ledger-Dispatch

7,600

CA

Kingsburg

Kingsburg Recorder

2,500

CA

Lakeport

Lake County Record Bee

9,134

CA

Manteca

The Manteca Bulletin

6,716

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 100 of 151

CA

Monterey

CA

Monterey

CA

Morgan Hill

CA

Mount Shasta

CA

Napa

CA

Oakdale

CA

Palmdale

CA

Paradise

CA

Placerville

CA

Porterville

CA

Portola

CA

Quincy

CA

Red Bluff

CA

Ridgecrest

CA

Riverbank

CA

San Diego

CA

Santa Clarita

CA

Selma

CA

Shasta Lake

CA

Sonora

CA

South Lake Tahoe

CA

Susanville

CA

Susanville

CA

Taft

CA

Truckee

CA

Turlock

CA

Twentynine Palms

CA

Ukiah

CA

Vacaville

CA

Vallejo

CA

Valley Springs

CA

Victorville

The Monterey County Herald Salinas Valley Weekly Morgan Hill Times Mount Shasta Herald
The Napa Valley Register Oakdale Leader
Palmdale Antelope Valley Press Paradise Post
Mountain Democrat The Porterville Recorder
Portola Reporter Feather River Bulletin Red Bluff Daily News The Daily Independent The Riverbank News The San Diego Union-Tribune
The Signal Selma Enterprise Shasta Lake Bulletin The Union Democrat Tahoe Daily Tribune Lassen County Times Westwood Pinepress Daily Midway Driller
Sierra Sun Turlock Journal The Desert Trail Ukiah Daily Journal Vacaville Reporter Vallejo Times Herald The Valley Springs News Press-Dispatch

29,250 35,700 3,266 4,872 14,300 5,074 23,460 8,119 14,527 10,149 2,475 3,330 8,119 8,119 1,284 254,900 13,194 3,000 1,050 12,800 8,119 8,600 1,245 3,045 7,720 3,980 3,500 7,815 20,298 22,328 1,000 38,566

CA

Visalia

Visalia Times-Delta/Tulare Advance-Register 24,000

CA

Willits

The Willits News

2,842

CA

Woodland

Woodland Daily Democrat

10,352

CA

Yreka

Siskiyou Daily News

5,886

CA

Yucca Valley

Hi-Desert Star

7,000

CO

Akron

Akron News-Reporter

1,450

CO

Brush

Brush News-Tribune

900

CO

Canon City

Canon City Daily Record

8,000

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 101 of 151

CO

Craig

CO

Estes Park

CO

Fort Morgan

CO

Fowler

CO

Greeley

CO

Julesburg

CO

La Junta

CO

Lafayette

CO

Las Animas

CO

Longmont

CO

Louisville

CO

Loveland

CO

Steamboat Springs

CO

Steamboat Springs

CO

Sterling

CT

Manchester

CT

Norwalk

CT

Willimantic

DE

Newark

FL

Bartow

FL

Brooksville

FL

Charlotte Harbor

FL

Chiefland

FL

Crawfordville

FL

Crescent City

FL

Cross City

FL

Dunnellon

FL

Fort Meade

FL

Frostproof

FL

Jacksonville

FL

Kissimmee

FL

Lake Placid

FL

Lake Wales

FL

Live Oak

FL

Madison

FL

Marianna

FL

Quincy

FL

Sebring

FL

St. Augustine

FL

The Villages

FL

Venice

Craig Daily Press Estes Park Trail-Gazette
Fort Morgan Times The Fowler Tribune The Greeley Tribune Julesburg Advocate La Junta Tribune Democrat
Lafayette News Bent County Democrat Longmont Times-Call
Louisville Times Loveland Reporter-Herald
Steamboat Pilot Steamboat Today Journal Advocate Manchester Journal Inquirer
The Hour The Chronicle Newark Post The Polk County Democrat Hernando Today Sun Newspapers Chiefland Citizen The Wakulla News Courier Journal Dixie County Advocate Riverland News The Fort Meade Leader Frostproof News The Florida Times-Union Osceola News-Gazette Lake Placid Journal Lake Wales News Suwanne Democrat The Madison Enterprise-Recorder Jackson County Floridan Gadsden County Times Highlands Today The St. Augustine Record The Villages Sun Hardee Sun

9,200 3,900 3,360 1,000 21,000 1,343 3,000 2,000 1,500 21,500 2,000 18,500 3,500 3,500 4,500 45,000 16,746 7,000 4,000 3,500 13,500 11,000 4,378 6,000 2,700 4,570 2,800 2,500 3,000 140,000 40,000 3,000 4,500 6,350 3,451 7,307 6,000 25,372 21,560 50,000 3,000

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 102 of 151

FL

Venice

Venice Gondolier Sun

8,500

FL

Wauchula

The Herald Advocate

4,567

GA

Athens

Athens Banner Herald

22,000

GA

Augusta

The Augusta Chronicle

50,000

GA

Augusta

North Augusta Today

12,000

GA

Bainbridge

The Post Searchlight

7,650

GA

Blakely

Early County News

2,786

GA

Brunswick

The Brunswick News

16,200

GA

Cairo

The Cairo Messenger

4,973

GA

Calhoun

Calhoun Times

7,021

GA

Cartersville

The Daily Tribune News

7,200

GA

Clayton

The Clayton Tribune

7,900

GA

Covington

The Covington News

6,089

GA

Cumming

Forsyth County News

15,300

GA

Dalton

The Daily Citizen

12,250

GA

Dawsonville

Dawson Community News

4,000

GA

Eatonton

The Eatonton Messenger

4,905

GA

Forsyth

The Monroe County Reporter

4,477

GA

Gray

The Jones County News

4,060

GA

Griffin

Griffin Daily News

8,500

GA

Hawkinsville

Hawkinsville Dispatch & News

2,800

GA

Jesup

The Press-Sentinel

6,500

GA

Lafayette

Walker County & Catoosa County News

6,160

GA

LaGrange

LaGrange Daily News

9,743

GA

Louisville

The News & Farmer

4,200

GA

Milledgeville

The Baldwin Bulletin

3,248

GA

Monroe

The Walton Tribune

6,089

GA

Reidsville

The Tattnall Journal

2,487

GA

Rockmart

Rockmart Journal and Cedartown Standard

5,553

GA

Rome

Rome News Tribune

17,271

GA

Savannah

Savannah Morning News

43,000

GA

Statesboro

The Statesboro Herald

8,000

GA

Sylvania

The Sylvania Telephone

4,375

GA

Thomaston

The Thomaston Times

4,000

GA

Thomson

McDuffie Mirror

2,400

GA

Winder

The Barrow County News

7,700

IA

Adel

Dallas County News

1,100

IA

Adel

Northeast Dallas County Record

700

IA

Algona

The Algona Upper Des Moines

3,250

IA

Allison

Butler County Tribune Journal

1,400

IA

Atlantic

Atlantic News-Telegraph

3,552

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 103 of 151

IA

Audubon

IA

Bedford

IA

Boone

IA

Britt

IA

Burlington

IA

Carroll

IA

Cascade

IA

Centerville

IA

Cherokee

IA

Clarinda

IA

Clarksville

IA

Clinton

IA

Corwith

IA

Council Bluffs

IA

Creston

IA

Denison

IA

Dows

IA

Dyersville

IA

Eagle Grove

IA

Fairfield

IA

Forest City

IA

Fort Madison

IA

Freemont

IA

Garner

IA

Grundy Grove

IA

Hamburg

IA

Hampton

IA

Hampton

IA

Hampton

IA

Harlan

IA

Hawarden

IA

Hull

IA

Ida Grove

IA

Inwood

IA

Kalona

IA

Kalona

IA

Keokuk

IA

Keota

IA

Knoxville

IA

Lake City

IA

Le Mars

Audubon County Advocate Journal The Bedford Times-Press Boone News-Republican The Britt News Tribune The Hawk Eye Daily Times Herald Cascade Pioneer Daily Iowegian Chronicle Times Clarinda Herald-Journal Clarksville Star Clinton Herald CWL Times The Daily Nonpareil Creston News Advertiser Denison Review Dows Advocate Dyersville Commercial Eagle Grove Eagle The Fairfield Daily Ledger Forest City Summit
Fort Madison Daily Democrat Village Vine
Garner Leader & Signal The Grundy Register Hamburg Reporter
Calhoun County Advocate Hampton Chronicle Pioneer Enterprise
Harlan News-Advertiser The Independent/Examiner Sioux County Index-Reporter
Ida County Courier West Lyon Herald The Kalona News The Lone Tree Reporter Daily Gate City
Keota Eagle Journal Express Lake City Graphic Le Mars Daily Sentinel

1,940 1,000 2,850 1,542 21,313 5,700 1,475 3,146 2,579 1,200 1,150 11,900 1,000 17,000 4,600 1,000 1,000 3,383 1,670 3,298 2,898 5,000 500 1,500 2,200 1,244 1,200 2,930 700 3,000 1,045 1,029 2,842 1,031 2,000 1,000 5,000 1,000 2,139 1,000 2,800

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 104 of 151

IA

Logan

Logan Herald-Observer

1,000

IA

Mason City

Mason City Globe Gazette

18,500

IA

Mount Pleasant

Mt. Pleasant News

2,994

IA

New Sharon

New Sharon Sun

950

IA

Newton

Newton Daily News

5,100

IA

Osage

Mitchell County Press News

3,045

IA

Osceola

Osceola Sentinel-Tribune

3,200

IA

Oskaloosa

Oskaloosa Herald

3,200

IA

Ottumwa

The Ottumwa Courier

14,900

IA

Pella

The Chronicle

2,139

IA

Rock Rapids

Lyon County Reporter

1,929

IA

Sheffield

Sheffield Press

900

IA

Shenandoah

Valley News Today

2,000

IA

Sigourney

Sigourney News Review

2,000

IA

Sioux City

Sioux City Journal

45,670

IA

Spencer

The Daily Reporter

3,781

IA

Spirit Lake

Dickinson County News

3,084

IA

Storm Lake

Pilot Tribune

2,786

IA

Story City

The Story City Herald

1,800

IA

Tipton

The Tipton Conservative and Advertiser

4,000

IA

Washington

The Washington Evening Journal

3,820

IA

West Branch

West Branch Times

1,500

IA

West Liberty

The West Liberty Index

1,037

IA

What Cheer

What Cheer Paper

1,300

IA

Woodbine

The Woodbine Twiner

900

ID

Aberdeen

The Aberdeen Times

900

ID

American Falls

Power County Press

1,900

ID

Blackfoot

The Morning News

3,980

ID

Coeur d'Alene

Coeur d'Alene Press

21,800

ID

Driggs

Teton Valley News

2,700

ID

Grangeville

Idaho County Free Press

2,400

ID

Kellogg

Shoshone News-Press

4,200

ID

Moscow

The Moscow-Pullman Daily News

7,104

ID

Mt. Home

Mountain Home News

4,060

ID

Payette

Independent Enterprise

1,700

ID

Preston

The Preston Citizen

2,288

ID

Priest River

Priest River Times

2,800

ID

Rexburg

Rexburg Standard Journal

5,472

ID

Sandpoint

Bonner County Daily Bee

5,200

ID

Sandpoint

Bonners Ferry Herald

3,551

IL

Aledo

The Times Record

3,451

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 105 of 151

IL

Alton

IL

Benton

IL

Canton

IL

Carbondale

IL

Chester

IL

Christopher

IL

Crystal Lake

IL

Crystal Lake

IL

DeKalb

IL

Du Quoin

IL

Effingham

IL

Fairbury

IL

Flora

IL

Freeport

IL

Galesburg

IL

Geneseo

IL

Geneva

IL

Harrisburg

IL

Herrin

IL

Hillsboro

IL

Jacksonville

IL

Kankakee

IL

Kewanee

IL

La Salle

IL

Lena

IL

Lincoln

IL

Loves Park

IL

Machesney Park

IL

Macomb

IL

Marion

IL

Metamora

IL

Metropolis

IL

Moline

IL

Monmouth

IL

Morris

IL

Mount Carmel

IL

Murphysboro

IL

Newton

IL

Olney

IL

Oquawka

IL

Ottawa

The Alton Telegraph Benton Evening News
The Daily Ledger The Carbondale Southern Illinoisan Randolph County Herald-Tribune
The Progress The Northwest Herald Lake County Journals The Daily Chronicle Du Quoin Evening Call Effingham Daily News
The Blade The Clay County Advocate-Press The Freeport Journal-Standard
The Paper Geneseo Republic Kane County Chronicle The Daily Register The Spokesman The Journal News Jacksonville Journal Courier The Daily Journal Kewanee Star Courier La Salle News Tribune Northwestern Illinois Farmers
The Courier Rock Valley Publishing Elmhurst Independent The Macomb Journal The Marion Daily Republican
Metamora Herald Metropolis Planet
The Dispatch Monmouth Review Atlas
Morris Daily Herald Daily Republican-Register Murphysboro American
Newton Press-Mentor Olney Daily Mail Oquawka Current The Ottawa Times

22,200 2,500 5,582 28,925 2,487 1,000 32,000 8,150 8,300 3,857 11,500 2,139 2,139 14,209 18,268 5,920 8,100 6,191 2,040 5,900 14,925 26,340 5,988 19,000 1,600 7,003 1,600 6,400 4,179 3,045 1,000 4,872 42,000 1,537 7,600 4,060 1,841 2,239 4,060 1,000 15,000

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 106 of 151

IL

Palos Heights

IL

Paris

IL

Pekin

IL

Peoria

IL

Peoria

IL

Peoria

IL

Peoria

IL

Pontiac

IL

Rockford

IL

Rushville

IL

Salem

IL

Shawneetown

IL

Shelbyville

IL

Sterling

IL

Taylorville

IL

Vandalia

IL

West Frankfort

IL

Zion

IN

Batesville

IN

Bedford

IN

Bloomington

IN

Boonville

IN

Brazil

IN

Bremen

IN

Columbia City

IN

Culver

IN

Decatur

IN

French Lick

IN

Greencastle

IN

Greensburg

IN

Hope

IN

Kendallville

IN

Knox

IN

La Porte

IN

Lawrenceburg

IN

Lebanon

IN

Linton

IN

Madison

IN

Martinsville

IN

Mooresville

IN

Nappanee

The Regional News Paris - Beacon News Pekin Daily Times Chillicothe Times-Bulletin East Peoria Times-Courier Morton Times-News Washington Times-Reporter The Daily Leader Rockford Register Star The Rushville Times Salem Times Commoner The Gallatin Democrat Shelbyville Daily Union Sauk Valley Newspaper
Breeze Courier Leader-Union The Daily American Zion Benton News/Bargaineer The Herald Tribune The Bedford Times Mail The Herald Times Boonville Standard Brazil Times The Bremen Enquirer The Post & Mail The Culver Citizen Decatur Daily Democrat Springs Valley Herald Banner-Graphic Greensburg Daily News The Hope Star-Journal The News-Sun The Leader The La Porte Herald Argus Journal Press The Lebanon Reporter The Daily World The Madison Courier The Reporter-Times The Mooresville-Decatur Times Nappanee Advance News

3,300 5,582 10,000 2,400 2,300 3,000 7,207 4,466 46,750 3,045 4,060 2,239 2,800 21,730 6,000 5,176 3,045 22,000 3,150 11,300 23,600 4,060 4,179 800 3,500 500 5,650 2,842 5,572 5,200 1,000 20,300 430 13,930 6,368 5,100 5,582 9,300 5,500 5,000 500

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 107 of 151

IN

North Vernon

North Vernon Plain Dealer

6,169

IN

Paoli

Paoli Republican

3,248

IN

Plymouth

Pilot News

5,870

IN

Plymouth

Bourbon News-Mirror

900

IN

Portland

The Commercial Review

4,480

IN

Princeton

Princeton Daily Clarion

6,544

IN

Rochester

The Rochester Sentinel

4,100

IN

Rushville

Rushville Republican

3,050

IN

Seymour

The Seymour Tribune

8,000

IN

Shoals

The Shoals News

2,438

IN

Versailles

The Versailles Republican

4,567

IN

Washington

The Washington Times-Herald

7,000

IN

Winchester

The News-Gazette

3,146

KS

Atchison

Atchison Daily Globe

3,800

KS

Augusta

Augusta Daily Gazette

2,288

KS

Baxter Springs

Baxter Springs News

1,600

KS

Belleville

The Belleville Telescope

2,500

KS

Chanute

The Chanute Tribune

3,880

KS

Columbus

The Columbus Advocate

2,200

KS

El Dorado

The El Dorado Times

3,482

KS

Ellsworth

Ellsworth County Independent-Reporter

2,736

KS

Eureka

The Eureka Herald

2,040

KS

Goodland

The Goodland Daily News

1,950

KS

Hays

The Hays Daily News

10,400

KS

Herington

The Herington Times

2,089

KS

Hiawatha

Hiawatha World

2,500

KS

Holton

The Holton Recorder

3,700

KS

Hutchinson

The Hutchinson News

30,750

KS

Junction City

The Daily Union

4,400

KS

Lawrence

Lawrence Journal-World

21,000

KS

Liberal

Southwest Daily Times

5,000

KS

Louisburg

Louisburg Herald

1,700

KS

McPherson

McPherson Sentinel

4,577

KS

Norton

The Norton Telegram

1,900

KS

Oberlin

Bird City Times

551

KS

Oberlin

Colby Free Press

1,950

KS

Oberlin

The Oberlin Herald

1,850

KS

Oberlin

The St. Francis Herald

1,250

KS

Osawatomie

Osawatomie Graphic

1,975

KS

Oskaloosa

The Oskaloosa Independent

2,338

KS

Ottawa

The Ottawa Herald

5,587

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 108 of 151

KS

Overland Park

KS

Overland Park

KS

Paola

KS

Parsons

KS

Pittsburgh

KS

Pratt

KS

Salina

KS

Shawnee

KS

Stockton

KS

Topeka

KS

Valley Falls

KS

Wellington

KY

Bardstown

KY

Benton

KY

Bowling Green

KY

Brownsville

KY

Cadiz

KY

Corbin

KY

Danville

KY

Eddyville

KY

Falmouth

KY

Flemingsburg

KY

Frankfort

KY

Fulton

KY

Georgetown

KY

Greenup

KY

Hazard

KY

Hopkinsville

KY

Hopkinsville

KY

Leitchfield

KY

Liberty

KY

London

KY

Middlesboro

KY

Monticello

KY

Morganfield

KY

New Castle

KY

Nicholasville

KY

Oak Grove

KY

Pikeville

KY

Prestonsburg

KY

Princeton

Johnson County Sun Wednesday Sun
The Miami County Republic Parsons Sun
Pittsburg Morning Sun The Pratt Tribune The Salina Journal
The Shawnee Dispatch Stockton Sentinel
The Topeka Capital-Journal The Vindicator
Wellington Daily News Kentucky Standard The Tribune Courier Daily News Edmonson News The Cadiz Record
Corbin Times-Tribune The Advocate Messenger Lyon County Herald-Ledger The Falmouth Outlook Flemingsburg Gazette
The State Journal The Fulton Leader Georgetown News Graphic Greenup County News-Times
Hazard Herald Kentucky New Era Fort Campbell Courier Grayson County News-Gazette Casey County News The London Sentinel-Echo Middlesboro Daily News The Wayne County Outlook Union County Advocate Henry County Local The Jessamine Journal
The Eagle Post Appalachian News Express The Floyd County Times
The Times-Leader

27,000 20,000 3,550 4,800 8,000 2,040 30,000 21,000 1,443 42,000 2,740 2,600 9,700 4,700 19,100 4,079 4,060 8,119 9,000 2,040 4,060 2,500 9,000 1,800 4,200 2,537 5,300 10,500 18,000 3,000 4,776 7,960 6,597 6,089 4,000 4,975 7,263 5,400 6,766 6,574 5,100

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 109 of 151

KY

Russellville

KY

Shepherdsville

KY

Taylorsville

KY

Whitley City

KY

Winchester

LA

Bastrop

LA

Belle Chasse

LA

Bogalusa

LA

Bossier City

LA

Covington

LA

DeRidder

LA

Gonzales

LA

Jena

LA

La Place

LA

Leesville

LA

Minden

LA

Sulphur

MA

Attleboro

MA

Greenfield

MA

North Adams

MA

North Reading

MA

North Reading

MD

Annapolis

MD

Cambridge

MD

Centreville

MD

Chestertown

MD

Denton

MD

Easton

MD

Elkton

MD

Essex

MD

Frederick

MD

Stevensville

MD

Westminster

ME

Bangor

ME

Lewiston

ME

Portland

MI

Big Rapids

MI

Cadillac

MI

Caro

MI

Cheboygan

MI

Coldwater

News Democrat & Leader The Pioneer News
Taylorsville Spencer Magnet The McCreary County Record
The Winchester Sun Bastrop Daily Enterprise The Plaquemines Watchman
Daily News Bossier Press-Tribune St. Tammany News Beauregard Daily News
Ascension Citizen The Jena-Times L'Observateur Leesville News Leader Minden Press-Herald Southwest Daily News The Sun Chronicle
The Recorder North Adams Transcript The Lynnfield Villager North Reading Transcript
The Capital Dorchester Star The Record-Observer Kent County News The Times Record The Star Democrat
Cecil Whig The Avenue News The Frederick News-Post
The Bay Times Carroll County Times
Bangor Daily News Sun Journal
Portland Press Herald Big Rapids Pioneer Cadillac News
Tuscola County Advertiser Cheboygan Daily Tribune
The Daily Reporter

3,000 8,789 3,654 3,645 5,800 4,567 5,700 3,383 4,770 9,950 3,500 7,164 4,975 5,100 3,500 5,074 4,000 25,372 15,422 8,627 1,600 4,500 30,845 10,000 3,349 7,000 3,349 19,791 15,000 25,000 37,000 5,074 24,000 56,000 36,500 76,500 6,000 8,000 6,467 4,364 5,937

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 110 of 151

MI

Hart

MI

Hillsdale

MI

Holland

MI

Howell

MI

Ionia

MI

Ironwood

MI

Lapeer

MI

Livonia

MI

Livonia

MI

Livonia

MI

Livonia

MI

Livonia

MI

Livonia

MI

Ludington

MI

Manistee

MI

Milford

MI

Munising

MI

Northville

MI

Northville

MI

Rogers City

MI

Rogers City

MI

Sault Ste. Marie

MI

South Lyon

MI

Sturgis

MI

Tecumseh

MI

Three Rivers

MI

Whitehall

MI

Ypsilanti

MI

Zeeland

MN

Aitkin

MN

Bagley

MN

Baudette

MN

Brainerd

MN

Canby

MN

Clarissa

MN

Cloquet

MN

Cloquet

MN

Cottonwood

MN

Crookston

MN

Elbow Lake

MN

Faribault

Oceana's Herald-Journal The Hillsdale Daily News
The Holland Sentinel Livingston County Daily Press & Argus
Sentinel-Standard Daily Globe
The Lapeer County Press Canton Observer
Garden City Observer Livonia Observer Plymouth Observer Rochester Eccentric Westland Observer
Ludington Daily News Manistee News-Advocate
Milford Times The Munising News Northville Record
Novi News Onaway Outlook Presque Isle County Advance The Evening News South Lyon Herald Sturgis Journal The Tecumseh Herald Three Rivers Commercial News White Lake Beacon Ypsilanti Courier The Zeeland Record Aitkin Independent Age Farmers Independent The Baudette Region Brainerd Daily Dispatch
Canby News Independent News Herald
The Pine Journal The Pine Knot Tri-County News Crookston Daily Times Grant County Herald Faribault Daily News

6,800 6,500 18,400 15,500 3,146 6,597 9,600 11,000 11,000 8,500 9,500 9,640 8,500 9,500 5,000 5,074 1,900 5,074 4,872 2,537 4,161 7,612 5,785 6,800 4,800 3,552 4,600 2,537 1,542 4,350 2,040 1,393 13,803 1,642 2,000 3,300 1,450 1,343 2,040 1,600 6,467

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 111 of 151

MN

Grand Rapids

MN

Granite Falls

MN

Hibbing

MN

Isle

MN

Montevideo

MN

Montgomery

MN

New Prague

MN

Owatonna

MN

Paynesville

MN

Redwood Falls

MN

Rochester

MN

Sleepy Eye

MN

St. James

MN

St. Peter

MN

Staples

MN

Thief River Falls

MN

Virginia

MN

Waseca

MN

Westbrook

MN

Winona

MO

Aurora

MO

Bloomfield

MO

Bolivar

MO

Boonville

MO

Buffalo

MO

Camdenton

MO

Carthage

MO

Caruthersville

MO

Concordia

MO

Dexter

MO

Edina

MO

Fulton

MO

Gladstone

MO

Hannibal

MO

Hermitage

MO

Independence

MO

Kahoka

MO

Kearney

MO

Kennett

MO

Kirksville

MO

Lebanon

Grand Rapids Herald-Review Granite Falls Advocate-Tribune
The Hibbing Daily Tribune Mille Lacs Messenger
Montevideo American News Montgomery Messenger The New Prague Times Owatonna People's Press The Paynesville Press
The Redwood Falls Gazette Post-Bulletin
Sleepy Eye Herald-Dispatch St. James Plaindealer St. Peter Herald Staples World Thief River Falls Times
The Mesabi Daily News Waseca County News Westbrook Sentinel-Tribune Winona Daily News
Aurora Advertiser The North Stoddard Countian
Bolivar Herald-Free Press Boonville Daily News Buffalo Reflex Lake Sun Leader The Carthage Press Democrat-Argus The Concordian
The Dexter Daily Statesman The Edina Sentinel The Fulton Sun Liberty Tribune
Hannibal Courier-Post The Index
The Examiner The Media
The Kearney Courier The Kennett Daily Dunklin Democrat
Kirksville Daily Express The Lebanon Daily Record

7,624 2,689 6,597 4,450 3,654 1,900 4,250 6,467 2,040 3,958 47,700 2,000 2,338 2,322 2,100 4,477 9,642 3,371 1,339 11,000 3,045 2,040 5,500 2,537 5,950 4,975 4,161 2,040 2,835 3,045 1,741 4,770 10,500 8,457 4,427 10,000 2,100 3,000 3,654 6,368 5,772

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 112 of 151

MO

Malden

MO

Marble Hill

MO

Marshfield

MO

Maryville

MO

Mexico

MO

Moberly

MO

Moberly

MO

Monett

MO

Neosho

MO

New Madrid

MO

Ozark

MO

Palmyra

MO

Perrysville

MO

Portageville

MO

Republic

MO

Rogersville

MO

Rolla

MO

Sedalia

MO

Smithville

MO

St. Joseph

MO

Steele

MO

Stockton

MO

Thayer

MO

Warrensburg

MO

Warrenton

MO

Washington

MO

West Plains

MS

Aberdeen

MS

Batesville

MS

Batesville

MS

Brandon

MS

Clarksdale

MS

Cleveland

MS

Crystal Springs

MS

Fulton

MS

Grenada

MS

Hazelhurst

MS

Holly Springs

MS

Kosciusko

MS

Laurel

MS

Meridian

Delta News Citizen The Banner Press The Marshfield Mall Maryville Daily Forum
Mexico Ledger Evening Democrat Moberly Monitor-Index The Monett Times Neosho Daily News The Weekly Record Christian County Headliner Palmyra Spectator Perry County Republic-Monitor Missourian-News Republic Monitor South County Mail Rolla Daily News The Sedalia Democrat The Smithville Lake Herald St. Joseph News-Press The Steele Enterprise Cedar County Republican South Missourian-News The Daily Star-Journal Warren County Record Washington Missourian West Plains Daily Quill The Monroe County Journal Panola Partnership
The Panolian Rankin County News The Clarksdale Press Register Bolivar Commercial
The Meteor The Itawamba County Times
The Daily Star Copiah County Courier
The South Reporter The Star-Herald
Laurel Leader-Call The Meridian Star

3,045 4,263 5,100 2,600 5,500 3,000 2,970 4,100 4,466 1,045 5,300 2,842 5,400 1,741 2,750 1,625 6,300 13,104 2,350 30,000 1,542 3,700 1,642 5,304 3,775 16,525 7,600 6,350 2,000 4,500 8,119 3,150 6,000 2,600 3,250 5,671 3,045 5,200 5,074 9,134 14,000

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 113 of 151

MS

Monticello

MS

Morton

MS

New Albany

MS

Oxford

MS

Pontotoc

MS

Senatobia

MS

Starkville

MS

Tylertown

MS

Vicksburg

MS

West Point

MT

Big Timber

MT

Billings

MT

Chinook

MT

Columbus

MT

Cut Bank

MT

Dillon

MT

Forsyth

MT

Glendive

MT

Hardin

MT

Havre

MT

Helena

MT

Kalispell

MT

Lewistown

MT

Libby

MT

Livingston

MT

Miles City

MT

Red Lodge

MT

Shelby

MT

Townsend

MT

Valier

NC

Ahoskie

NC

Albemarle

NC

Asheboro

NC

Burgaw

NC

Burlington

NC

Clemmons

NC

Clinton

NC

Dunn

NC

Durham

NC

Forest City

NC

Franklin

Lawrence County Press Spirit of Morton
New Albany Gazette The Oxford Eagle
The Pontotoc Progress The Democrat
Starkville Daily News The Tylertown Times The Vicksburg Post Daily Times Leader The Big Timber Pioneer
Billings Gazette The Journal News-Opinion
Stillwater County News Cut Bank Pioneer
Dillon Tribune Examiner The Independent Press Ranger Review Big Horn County New Havre Daily News
Helena Independent Record Kalispell Daily Inter Lake
Lewistown News-Argus The Western News
The Livingston Enterprise Miles City Star
Carbon County News Shelby Promoter
The Townsend Star The Valierian
Roanoke-Chowan News Herald Albemarle Stanley News & Press
The Randolph Guide The Pender Chronicle Burlington Times-News The Clemmons Courier The Sampson Independent
The Daily Record The Herald Sun The Daily Courier The Franklin Press

1,300 1,045 4,200 5,582 5,250 4,500 5,970 2,388 14,500 3,980 1,400 43,000 1,500 1,841 1,200 2,438 1,343 3,060 1,741 4,263 14,716 17,609 3,333 3,248 3,259 3,408 2,288 1,800 2,040 300 10,352 9,000 3,200 2,985 27,352 2,200 7,000 9,500 27,000 8,000 8,600

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 114 of 151

NC

Fremont

NC

Fuquay-Varina

NC

Garner

NC

Gastonia

NC

Hayesville

NC

Henderson

NC

High Point

NC

Highlands

NC

Jacksonville

NC

Kannapolis

NC

Kinston

NC

LaGrange

NC

Laurinburg

NC

Lenoir

NC

Lumberton

NC

Marion

NC

Marshville

NC

Mocksville

NC

Monroe

NC

Morganton

NC

Mount Airy

NC

Mount Olive

NC

Mt. Airy

NC

Murphy

NC

Nashville

NC

New Bern

NC

Newton

NC

Princeton

NC

Robbinsville

NC

Rockingham

NC

Roxboro

NC

Sanford

NC

Shelby

NC

Southern Pines

NC

Spring Hope

NC

Statesville

NC

Tarboro

NC

Taylorsville

NC

Whiteville

NC

Wilson

ND

Beulah

Wayne-Wilson News Leader Holly Springs Sun Cleveland Post
The Gastonia Gaston Gazette Clay County Progress The Daily Dispatch
The High Point Enterprise The Highlander
The Jacksonville Daily News Independent Tribune The Kinston Free Press Weekly Gazette
The Laurinburg Exchange News-Topic
The Robesonian The McDowell News
The Home News Davie County Enterprise-Record
The Enquirer-Journal The News Herald The Stokes News
Mount Olive Tribune Mt. Airy News Cherokee Scout
The Nashville Graphic The New Bern Sun Journal The Observer-News-Enterprise
Princeton News-Leader Graham Star
Richmond County Daily Journal The Courier-Times The Sanford Herald The Shelby Star
The Southern Pines Pilot Spring Hope Enterprise Statesville Record & Landmark The Daily Southerner The Taylorsville Times
The News Reporter The Wilson Daily Times
Beulah Beacon

1,600 8,800 6,500 33,492 4,000 8,000 21,800 2,800 20,646 20,000 11,641 1,492 4,700 8,800 13,000 7,200 1,800 9,529 7,500 11,400 6,169 3,600 10,961 5,000 3,482 16,119 2,000 1,600 4,000 9,751 7,800 9,000 16,615 16,915 2,537 16,000 4,060 6,300 11,164 16,238 863

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 115 of 151

ND

Devils Lake

ND

Garrison

ND

Garrison

ND

Garrison

ND

Garrison

ND

Garrison

ND

Hankinson

ND

Hazen

ND

New Town

ND

Parshall

ND

Stanley

ND

Turtle Lake

ND

Valley City

ND

Velva

ND

Wahpeton

NE

Ashland

NE

Beatrice

NE

Broken Bow

NE

Chadron

NE

Columbus

NE

David City

NE

Fairbury

NE

Fremont

NE

Gordon

NE

Gothenburg

NE

Grand Island

NE

Hebron

NE

Kearney

NE

Lexington

NE

McCook

NE

Minden

NE

Nebraska City

NE

North Platte

NE

Ord

NE

Papillion

NE

Papillion

NE

Ponca

NE

Schuyler

NE

Scottsbluff

NE

Sidney

NE

Syracuse

Devils Lake Journal Center Republican McLean County Independent McClusky Gazette The Leader-News Underwood News Richland County News-Monitor
Hazen Star New Town News Mountrail County Record Mountrail County Promoter McLean County Journal Valley City Times-Record
Velva Voice The Daily News Ashland Gazette Beatrice Daily Sun Custer County Chief The Chadron Record The Columbus Telegram
Banner Press Fairbury Journal-News
Fremont Tribune Gordon Journal Gothenburg Times The Grand Island Independent Journal-Register Kearney Hub Lexington Clipper-Herald McCook Daily Gazette The Minden Courier Nebraska City News-Press The North Platte Telegraph The Ord Quiz Papillion Times Ralston Recorder Nebraska Journal Leader The Schuyler Sun Scottsbluff Star-Herald Sun - Telegraph Syracuse Journal-Democrat

3,400 866 866 866 866 866 1,400 866 866 866 866 866 2,650 866 2,945 3,000 7,000 3,781 2,000 10,000 2,300 3,500 7,900 1,500 2,338 20,000 1,700 13,000 2,985 5,000 2,239 2,164 12,500 2,388 3,600 1,773 1,045 2,189 15,300 2,740 2,200

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 116 of 151

NE

Wahoo

NE

Waverly

NH

Hudson

NJ

Newton

NM

Albuquerque

NM

Angel Fire

NM

Belen

NM

Clovis

NM

Gallup

NM

Hobbs

NM

Las Alamos

NM

Las Vegas

NM

Lovington

NM

Portales

NM

Roswell

NM

Socorro

NM

Tucumcari

NV

Battle Mountain

NV

Carson City

NV

Ely

NV

Fallon

NV

Gardnerville

NV

Incline Village

NV

Pahrump

NV

Tonopah

NV

Winnemucca

NY

Batavia

NY

Callicoon

NY

Catskill

NY

Dansville

NY

Geneseo

NY

Herkimer

NY

Hudson

NY

Little Falls

NY

Lockport

NY

Medina

NY

Niagara Falls

NY

North Tonawanda

NY

Oneonta

NY

Oneonta

Wahoo Newspaper Waverly News The Telegraph
Newton New Jersey Herald The Albuquerque Journal Sangre De Cristo Chronicle Valencia County News-Bulletin
Clovis News Journal The Gallup Independent
Hobbs News Sun Los Alamos Monitor
Las Vegas Optic The Lovington Daily Leader
Portales News Tribune Roswell Daily Record El Defensor Chieftain
Quay County Sun The Battle Mountain Bugle Carson City Nevada Appeal
Ely Times Lahontan Valley News & Fallon Eagle
Standard The Record Courier North Lake Tahoe Bonanza Pahrump Valley Times Tonopah Times-Bonanza The Humboldt Sun
The Daily News Sullivan County Democrat
Catskill Daily Mail Genesee Country Express Livingston County News The Evening Telegram
Hudson Register-Star The Evening Times Lockport Journal The Journal Register Niagara Gazette Sunday Tonawanda News The Oneonta Daily Star Cooperstown Crier

3,000 2,119 23,000 13,000 102,000 2,800 23,000 5,600 22,000 10,656 5,582 5,074 2,040 3,200 10,940 3,500 3,200 3,000 20,480 3,045
4,466 7,252 1,542 7,960 1,542 3,576 12,500 7,000 6,500 2,537 7,500 4,000 6,000 2,500 10,000 2,000 17,000 6,000 15,922 1,811

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 117 of 151

NY

Oswego

NY

Penn Yan

NY

Plattsburgh

NY

Wappingers Falls

NY

Watertown

OH

Ada

OH

Akron

OH

Alliance

OH

Ashland

OH

Ashtabula

OH

Athens

OH

Athens

OH

Batavia

OH

Bellevue

OH

Bryan

OH

Carey

OH

Carey

OH

Circleville

OH

Defiance

OH

Delaware

OH

Delphos

OH

Eaton

OH

Elyria

OH

Galion

OH

Georgetown

OH

Greenville

OH

Hillsboro

OH

Jackson

OH

Kenton

OH

Logan

OH

London

OH

Marysville

OH

Marysville

OH

Massillon

OH

Medina

OH

Millersburg

OH

Mount Gilead

OH

Napoleon

OH

New Lexington

OH

Norwalk

OH

Piqua

The Palladium-Times The Chronicle-Express Plattsburgh Press-Republican Southern Dutchess News Watertown Daily Times
Ada Herald The Suburbanite
Review Ashland County Times Ashtabula Star Beacon The Athens Messenger Vinton County Courier
Clermont Sun Gazette Publishing Company
The Bryan Times Mohawk Leader The Progressor Times Circleville Herald The Defiance Crescent-News Brown Publishing Company-Marysville The Daily Herald The Register-Herald The Elyria Chronicle-Telegram The Galion Inquirer Georgetown News Democrat The Daily Advocate Hillsboro Times-Gazette The Jackson County Times-Journal The Kenton Times The Logan Daily News Brown Publishing Company-London Marysville Journal-Tribune Richwood Gazette The Independent The Medina County Gazette The Holmes County Hub The Mount Gilead Weeklies Northwest Signal Perry County Tribune Norwalk Reflector Piqua Daily Call

6,322 3,857 22,328 8,310 23,800 1,700 33,800 12,000 14,209 16,200 11,729 2,500 1,542 5,472 10,547 1,681 2,000 6,500 18,000 8,119 3,400 6,700 25,372 3,045 3,885 6,500 5,000 6,000 6,698 5,000 5,074 6,000 2,000 13,700 16,238 2,338 8,221 4,567 4,000 9,743 6,300

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 118 of 151

OH

Sandusky

Sandusky Register

OH

Sidney

The Sidney Daily News

OH

Troy

Troy Daily News

OH

Upper Sandusky

The Daily Chief-Union (Upper Sandusky)

OH

Urbana

Urbana Daily Citizen

OH

Van Wert

Putnam County Sentinel

OH

Van Wert

The Times-Bulletin

OH

Wapakoneta

Wapakoneta Daily News

OH Washington Court House

Record Herald

OH

Wauseon

Fulton County Expositor

OH

Waverly

The News Watchman

OH

West Union

People's Defender

OH

Wilmington

Wilmington News Journal

OH

Wooster

The Wooster Daily Record

OH

Xenia

Beavercreek News Current

OH

Xenia

Fairborn Daily Herald

OH

Xenia

The Xenia Daily Gazette

OK

Altus

Altus Times

OK

Ardmore

The Daily Ardmoreite

OK

Bartlesville

Bartlesville Examiner-Enterprise

OK

Blackwell

Blackwell Journal Tribune

OK

Checotah

McIntosh County Democrat

OK

Chickasha

The Express-Star

OK

Claremore

Daily Progress

OK

Cleveland

Cleveland American

OK

Duncan

The Duncan Banner

OK

Durant

Durant Daily Democrat

OK

Edmond

The Edmond Sun

OK

Eufaula

Indian Journal

OK

Fairland

The American

OK

Fort Gibson

Fort Gibson Times

OK

Frederick

Frederick Leader

OK

Grove

The Grove Sun

OK

Guthrie

Guthrie News Leader

OK

Guymon

Guymon Daily Herald

OK

Idabel

McCurtain Daily Gazette

OK

Jay

Delaware County Journal

OK

Miami

Miami News-Record

OK

Mustang

Mustang Times

OK

Nowata

The Nowata Star

OK

Pauls Valley

Pauls Valley Daily Democrat

24,358 12,937 10,000 4,466 6,400 5,500 5,000 3,000 6,000 4,750 4,300 8,400 7,000 22,328 1,000 3,300 6,000 4,000 10,149 10,447 2,000 1,841 5,785 7,104 2,537 8,150 6,800 4,200 2,639 1,700 1,045 1,045 2,800 2,400 2,537 7,450 2,000 4,200 8,000 2,500 4,060

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 119 of 151

OK

Perkins

OK

Poteau

OK

Pryor

OK

Sapulpa

OK

Shawnee

OK

Stilwell

OK

Tahlequah

OK

Vinita

OK

Westville

OK

Woodward

OR

Baker City

OR

Brookings

OR

Burns

OR

Enterprise

OR

Hermiston

OR

Hood River

OR

John Day

OR

Keizer

OR

Klamath Falls

OR

La Grande

OR

Madras

OR

Medford

OR

Medford

OR

Newberg

OR

Pendleton

OR

Prineville

OR

Roseburg

OR

The Dalles

OR

Woodburn

PA

Allentown

PA

Allentown

PA

Allentown

PA

Allentown

PA

Bedford

PA

Bloomsburg

PA

Carlisle

PA

Corry

PA

Greencastle

PA

Greenville

PA

Hazleton

PA

Hellertown

The Perkins Journal Poteau Daily News The Pryor Daily Times Sapulpa Daily Herald The Shawnee News-Star Stilwell Democrat Journal Tahlequah Daily Press Vinita Daily Journal Westville Reporter Woodward News Baker City Herald Curry Coastal Pilot Burns Times-Herald Wallowa County Chieftain The Hermiston Herald Hood River News Blue Mountain Eagle
Keizertimes Klamath Falls Herald and News
The Observer The Madras Pioneer Ashland Daily Tidings Medford Mail Tribune
The Graphic Pendleton East Oregonian
Central Oregonian The Roseburg News-Review The Dalles Daily Chronicle Woodburn Independent/Canby
East Penn Press Northwestern Press
Parkland Press Whitehall-Coplay Press
Bedford Gazette Press Enterprise The Carlisle Sentinel Corry Evening Journal The Echo-Pilot The Record-Argus Hazleton Standard-Speaker The Valley Voice

3,451 5,000 3,200 5,970 10,352 4,500 5,472 3,000 1,589 4,975 3,650 7,000 3,045 2,842 3,880 5,074 3,045 3,248 17,253 6,400 4,179 3,000 24,000 4,060 9,134 4,428 18,905 5,886 7,800 6,500 4,000 5,000 5,000 9,421 23,850 16,847 3,755 2,537 4,669 22,000 1,443

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 120 of 151

PA

Honesdale

The Wayne Independent

4,060

PA

Huntingdon

The Daily News

10,000

PA

Kane

The Kane Republican

2,040

PA

Latrobe

The Latrobe Bulletin

7,510

PA

Lehighton

Salisbury Press

4,000

PA

Lehighton

Times News

16,500

PA

Milton

Lewisburg Daily Journal

1,000

PA

Milton

The Standard Journal

2,600

PA

Montrose

(The Susquehanna County) Independent

3,755

PA

Newville

Valley Times-Star

3,349

PA

Oil City

Derrick Publishing Co.

23,880

PA

Pittsburgh

Trib Total Media

226,500

PA

Pottsville

Pottsville Republican Herald

40,000

PA

Punxsutawney

The Spirit

5,200

PA

Ridgway

The Ridgway Record

3,146

PA

Sayre

Sayre Morning Times

6,100

PA

Scranton

Scranton Times-Tribune

54,000

PA

Shippensburg

The News-Chronicle

4,770

PA

St. Marys

The Daily Press

4,973

PA

Stroudsburg

Stroudsburg Pocono Record

20,805

PA

Sunbury

The Sunbury Daily Item

23,000

PA

Towanda

The Daily Review

9,540

PA

Tunkhannock

The New Age-Examiner

5,886

PA

Tyrone

The Daily Herald

2,000

PA

Washington

Observer-Reporter

36,500

PA

Waynesboro

The Record Herald

9,642

PA

White Haven

The Journal-Herald

1,000

PA

Wilkes-Barre

The Citizens' Voice

36,536

PA

Wyalusing

Rocket-Courier

4,060

RI

Warwick

Cranston Herald

4,060

RI

Warwick

Warwick Beacon

10,859

RI

Westerly

The Westerly Sun

10,149

SC

Barnwell

The People-Sentinel

6,000

SC

Bennettsville

Marlboro Herald-Advocate

7,104

SC

Bluffton

Bluffton Today

5,500

SC

Edgefield

The Citizen News

1,900

SC

Hampton

Hampton County Guardian

4,990

SC

Hartsville

The Messenger

4,500

SC

Lancaster

The Lancaster News

13,930

SC

Newberry

The Newberry Observer

5,000

SC

Orangeburg

The Orangeburg Times and Democrat

16,089

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 121 of 151

SC

Pickens

SC

Ridgeland

SC

Seneca

SC

Seneca

SC

Sumter

SC

Union

SC

Winnsboro

SD

Aberdeen

SD

Armour

SD

Belle Fourche

SD

Brookings

SD

Chamberlain

SD

Corsica

SD

Corsica

SD

Elk Point

SD

Hot Sprints

SD

Newell

SD

Parker

SD

Sturgis

SD

White Lake

SD

White Lake

SD

Yankton

TN

Bolivar

TN

Brownsville

TN

Camden

TN

Camden

TN

Cleveland

TN

Collierville

TN

Covington

TN

Crossville

TN

Dayton

TN

Dyer

TN

Dyersburg

TN

Elizabethton

TN

Erwin

TN

Fayetteville

TN

Fayetteville

TN

Franklin

TN

Greeneville

TN

Henderson

TN

Humboldt

The Pickens Sentinel Jasper County Sun Times
The Daily Journal The Daily Messenger
Clarendon Sun The Union Daily Times The Herald Independent Aberdeen American News
Armour Chronicle Belle Fourche Butte County Post
Brookings Register Central Dakota Times
Corsica Globe The Delmont Record
Leader-Courier Hot Springs Star Butte County Valley Irrigator
The New Era Meade County Times Tribune
Aurora County Standard The Stickney Argus
Yankton Daily Press & Dakotan Bolivar Bulletin-Times
Brownsville States-Graphic Carroll County News-Leader
The Camden Chronicle Cleveland Daily Banner The Collierville Herald
The Leader Crossville Chronicle The Herald-News The Tri-City Reporter The Dyersburg State Gazette Elizabethton Star The Erwin Record
Elk Valley Times Observer & News The Williamson Herald The Greeneville Sun Chester County Independent Humboldt Chronicle

4,600 1,324 7,060 1,940 10,000 6,495 3,000 16,250 865 1,600 5,074 2,438 895 230 1,200 1,200 1,800 1,121 2,000 873 872 8,557 1,878 3,300 4,300 4,000 16,238 4,600 5,500 7,242 5,683 2,000 6,089 9,000 5,074 6,950 6,950 8,500 13,300 4,567 2,771

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 122 of 151

TN

Jamestown

TN

Jefferson City

TN

Jonesborough

TN

Lafayette

TN

Lebanon

TN

Lenoir City

TN

Maryville

TN

McMinnville

TN

Mt. Juliet

TN

Oak Ridge

TN

Oneida

TN

Parsons

TN

Pulaski

TN

Selmer

TN

Sevierville

TN

Shelbyville

TN

Smithville

TN

Sweetwater

TN

Tazewell

TN

Tullahoma

TN

Waynesboro

TN

Woodbury

TX

Alice

TX

Alvin

TX

Andrews

TX

Athens

TX

Austin

TX

Austin

TX

Bastrop

TX

Bay City

TX

Baytown

TX

Big Spring

TX

Borger

TX

Breckenridge

TX

Brenham

TX

Brownfield

TX

Brownwood

TX

Bryan

TX

Burleson

TX

Burleson

TX

Burleson

Fentress Courier The Standard Banner
Herald & Tribune Macon County Times
The Wilson Post The News-Herald The Daily Times Southern Standard The Mt. Juliet News The Oak Ridger Independent Herald The News Leader The Pulaski Citizen Independent Appeal The Mountain Press Shelbyville Times Gazette Smithville Review The Advocate & Democrat Claiborne Progress The Tullahoma Sunday News The Wayne County News Cannon Courier Alice Echo News-Journal
Alvin Sun Andrews County News Athens Daily Review
Lake Travis View Westlake Picayune Bastrop Advertiser The Bay City Tribune The Baytown Sun Big Spring Herald Borger News-Herald Breckenridge American The Banner-Press Brownfield News Brownwood Bulletin Bryan-College Station Eagle
Alvarado Star Burleson Star Crowley Star

5,074 6,965 4,400 4,400 9,134 5,836 20,500 9,950 2,786 8,119 5,074 3,552 7,500 7,104 9,300 10,945 3,500 5,300 5,000 10,356 5,000 3,600 4,567 1,000 2,842 5,200 4,050 3,400 5,700 5,074 9,384 5,174 5,074 1,990 6,597 2,700 7,500 25,372 308 3,272 745

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 123 of 151

TX

Burleson

TX

Burleson

TX

Burleson

TX

Canyon

TX

Center

TX

Childress

TX

Clarksville

TX

Cleburne

TX

Clifton

TX

Comfort

TX

Corrigan

TX

Crockett

TX

Cuero

TX

Cuero

TX

Decatur

TX

Denton

TX

Edinburg

TX

Edna

TX

El Campo

TX

Eldorado

TX

Emory

TX

Floresville

TX

Fredericksburg

TX

Freer

TX

Gainesville

TX

Galveston

TX

Gatesville

TX

Gatesville

TX

Gilmer

TX

Glen Rose

TX

Graford

TX

Graham

TX

Granbury

TX

Greenville

TX

Groveton

TX

Hearne

TX

Hearne

TX

Hearne

TX

Hemphill

TX

Henderson

TX

Hereford

Everman Star Joshua Star Kenne Star The Canyon News Light and Champion The Childress Index Clarksville Times Cleburne Times-Review Clifton Record The Comfort News Corrigan Times Houston County Courier Cuero Record Yorktown News Wise County Messenger Denton Record-Chronicle Edinburg Review Jackson County Herald Tribune El Campo Leader-News The Eldorado Success Rains County Leader Wilson County News Fredericksburg Standard-Radio Post The Freer Press Gainesville Daily Register The Galveston County Daily News Star-Forum The Gatesville Messenger The Gilmer Mirror Glen Rose Reporter Lake Country Sun The Graham Leader Hood County News Greenville Herald-Banner Groveton News Calvert Tribune Franklin Advocate Hearne Democrat Sabine County Reporter Henderson Daily News Hereford Brand

289 687 569 4,000 4,060 2,100 3,248 5,000 2,900 1,244 1,194 5,176 3,200 1,900 6,000 14,280 20,000 3,600 5,200 2,288 3,146 11,000 9,600 1,542 6,300 24,500 1,060 3,000 5,074 2,000 1,100 4,336 10,149 7,800 1,940 1,300 1,300 2,000 3,045 6,219 2,639

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 124 of 151

TX

Huntsville

TX

Ingram

TX

Iowa Park

TX

Jacksboro

TX

Jacksonville

TX

Jefferson

TX

Jonestown

TX

Jonestown

TX

Junction

TX

Karnes

TX

Katy

TX

Kaufman

TX

Kerrville

TX

Kilgore

TX

Kingsville

TX

Lamesa

TX

Laredo

The Huntsville Item West Kerr Current Iowa Park Leader Jack County Herald Jacksonville Daily Progress The Jefferson Jimplecute Cedar Park Citizen
Leander Ledger The Junction Eagle The Countywide
The Katy Times Kaufman Herald Kerrville Daily Times Kilgore News Herald Kingsville Record Lamesa Press-Reporter Laredo Morning Times

6,089 1,940 2,400 1,050 3,800 2,000 14,350 8,700 1,800 3,100 6,000 4,364 9,540 3,400 6,089 3,383 19,500

TX

Levelland

Levelland And Hockley County News-Press

4,900

TX

Littlefield

The Lamb County Leader News

2,800

TX

Livingston

Polk County Enterprise

8,322

TX

Longview

Longview News Journal

30,090

TX

Lubbock

Lubbock Avalanche-Journal

33,250

TX

Lufkin

The Lufkin Daily News

13,668

TX

Lytle

Leader News

2,686

TX

Mabank

The Monitor-Lake Area Leader

4,060

TX

Marshall

Marshall News Messenger

7,650

TX

McAllen

Original Winter Texan

5,000

TX

Menard

Menard News & Messenger

1,443

TX

Meridian

Meridian Tribune

2,400

TX

Mexia

Hubbard City News

1,100

TX

Mexia

The Mexia Daily News

2,100

TX

Midland

Midland Reporter-Telegram

21,313

TX

Mineral Wells

The Mineral Wells Index

3,000

TX

Mount Vernon

Mount Vernon Optic-Herald

3,045

TX

Mt. Pleasant

Mount Pleasant Daily Tribune

5,273

TX

Muleshoe

Muleshoe Journal

2,000

TX

New Braunfels

New Braunfels Herald-Zeitung

10,700

TX

Nacogdoches

The Daily Sentinel

8,772

TX

Olney

The Olney Enterprise

1,000

TX

Orange

The Orange Leader

5,000

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 125 of 151

TX

Palestine

TX

Plainview

TX

Port Arthur

TX

Port Lavaca

TX

Post

TX

Raymondville

TX

Raymondville

TX

Robstown

TX

Rockport

TX

Rosenberg

TX

Round Rock

TX

Round Rock

TX

San Marcos

TX

Seagoville

TX

Seguin

TX

Seminole

TX

Shepherd

TX

Smithville

TX

Snyder

TX

Stephenville

TX

Sweetwater

TX

Teague

TX

Terrell

TX

Trinity

TX

Uvalde

TX

Vernon

TX

Vidor

TX

Waco

TX

Waxahachie

TX

Weatherford

TX

Wellington

TX

Weslaco

TX

Wharton

TX

Wills Point

TX

Woodville

TX

Zapata

UT

Bountiful

UT

Cedar City

UT

Heber City

UT

Moab

UT

Ogden

Palestine Herald-Press Plainview Daily Herald
Port Arthur News The Port Lavaca Wave
The Post Dispatch Raymondville Chronicle Willacy County News Nueces County Record Star
Rockport Pilot The Fort Bend Herald
Pflugerville Pflag Round Rock Leader San Marcos Daily Record The Suburbia News Seguin Gazette-Enterprise Seminole Sentinel San Jacinto News-Times
Smithville Times The Snyder Daily News Stephenville Empire-Tribune
Sweetwater Reporter The Teague Chronicle
Terrell Tribune Trinity Standard The Uvalde Leader-News The Vernon Daily Record
The Vidorian Waco Tribune-Herald Waxahachie Daily Light The Weatherford Democrat
Wellington Leader Weslaco Mid-Valley Town Crier
Wharton Journal-Spectator Van Zandt News
Tyler County Booster Zapata County News Davis County Clipper Iron County Today
Wasatch Wave The Times Independent
Standard-Examiner

7,500 6,800 13,500 4,567 1,691 2,200 1,149 4,000 4,975 8,880 7,200 7,500 5,750 1,600 6,597 1,240 2,239 3,100 5,582 4,726 3,755 2,537 4,060 2,388 4,975 4,669 1,200 37,000 5,480 4,000 1,700 18,268 4,200 8,119 3,857 2,300 10,000 10,000 4,263 3,300 63,939

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 126 of 151

UT

Price

UT

Richfield

UT

Salt Lake City

UT

Tooele

VA

Ashland

VA

Bedford

VA

Big Stone Gap

VA

Farmville

VA

Floyd

VA

Front Royal

VA

Galax

VA

Goochland

VA

Harrisonburg

VA

Harrisonburg

VA

Harrisonburg

VA

Hillsville

VA

Hopewell

VA

Lexington

VA

Louisa

VA

Marion

VA

Norton

VA

Norton

VA

Petersburg

VA

Richlands

VA

South Boston

VA

Strasburg

VA

Suffolk

VA

Tazewell

VA

Wytheville

VA

Wytheville

VT

Bennington

VT

Brattleboro

VT

Newport

VT

St. Albans

VT

St. Johnsbury

VT

West Dover

WA

Camas

WA

Colville

WA

Deer Park

WA

Eatonville

WA

Ellensburg

Sun-Advocate Richfield Reaper The Salt Lake Tribune/Deseret News Tooele Transcript Bulletin Herald Progress Bedford Bulletin
The Post The Farmville Herald
The Floyd Press The Warren Sentinel
The Gazette The Goochland Gazette Page News and Courier Shenandoah Valley-Herald
Valley Banner The Carroll News The Hopewell News The News-Gazette The Central Virginian Smyth County News & Messenger The Coalfield Progress Dickenson Star/Cumberland Times The Petersburg Progress-Index Richlands News-Press The Gazette-Virginian Northern Virginia Daily Suffolk News-Herald Clinch Valley News The Bland Messenger Wytheville Enterprise Bennington Banner Brattleboro Reformer The Newport Daily Express St. Albans Messenger The Caledonian-Record Deerfield Valley News Camas-Washougal Post-Record Statesman-Examiner
Tribune The Dispatch Ellensburg Daily Record

6,428 5,683 150,000 7,409 5,500 8,018 3,000 8,322 5,000 3,400 8,424 5,500 7,815 3,700 3,900 6,766 3,000 8,627 5,000 6,100 6,000 3,500 15,223 3,798 10,500 15,800 4,263 3,300 2,500 2,400 8,119 10,656 3,969 6,089 10,000 3,045 4,100 4,060 1,194 4,750 6,268

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 127 of 151

WA

Grandview

Grandview Herald

2,040

WA

Omak

The (Omak-Okanogan County) Chronicle

5,771

WA

Prosser

Record Bulletin

3,045

WA

Quincy

The Quincy Valley Post-Register

2,040

WA

Sequim

Sequim Gazette

8,627

WA

Spokane

The Spokane Spokesman-Review

109,251

WA

Sunnyside

Daily Sun News

3,755

WA

Yakima

Yakima Herald-Republic

32,200

WI

Amery

Amery Free Press

5,100

WI

Antigo

Antigo Buyers Guide

11,276

WI

Ashland

The Daily Press

6,000

WI

Baldwin

The Baldwin Bulletin

1,900

WI

Baraboo

Baraboo News Republic

4,950

WI

Barron

Barron News-Shield

4,000

WI

Beaver Dam

Daily Citizen

10,550

WI

Black River Falls

Jackson County Chronicle

2,139

WI

Burlington

Burlington Standard Press

5,000

WI

Cedarburg

Ozaukee County News Graphic

8,080

WI

Chetek

The Chetek Alert

2,900

WI

Clintonville

Clintonville Tribune Gazette

2,500

WI

Clintonville

Clintonville Buyers Guide

14,000

WI

Cumberland

Cumberland Advocate

2,139

WI

Delavan

The Delavan Enterprise

2,500

WI

Eagle River

Vilas County News-Review

6,120

WI

East Troy

The East Troy News

750

WI

Elkhorn

The Elkhorn Independent

2,000

WI

Fort Atkinson

Daily Jefferson County Union

8,728

WI

Hayward

Sawyer County Record

4,776

WI

Iola

Manawa Advocate

500

WI

Iola

The Iola Herald

1,000

WI

Lake Geneva

Lake Geneva Times

2,500

WI

Lancaster

Grant County Herald Independent

3,552

WI

Marinette

Eagle Herald

9,000

WI

Marshfield

Marshfield Buyers Guide

21,513

WI

Mauston

Juneau County Star-Times

3,097

WI

Merrill

Foto News

16,400

WI

Milwaukee

Milwaukee Journal Sentinel

260,000

WI

Monroe

The Monroe Times

5,074

WI

New London

New London Buyers Guide

15,151

WI

Osceola

Osceola Sun

2,139

WI

Oshkosh

Berlin/Ripon Ad Pack

12,700

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 128 of 151

WI

Oshkosh

WI

Park Falls

WI

Platteville

WI

Portage

WI

Racine

WI

Reedsburg

WI

Rhinelander

WI

Sauk City

WI

Shawano

WI

Spooner

WI

Stevens Point

Wi

Twin Lakes

WI

Union Grove

WI

Walworth

WI

Washburn

WI

Waterford

WI

Watertown

WI

Waukesha

WI

Waupaca

WI

Wausau

WI

Wautoma

WI

West Bend

WI

Weyauwega

WI

Whitewater

WI

Wisconsin Dells

WI

Wisconsin Rapids

WV

Gilbert

WV

Hamlin

WV

Harrisville

WV

Keyser

WV

Lewisburg

WV

Montgomery

WV

Oak Hill

WV

Petersburg

WV

Pineville

WV

Princeton

WV

Ravenswood

WV

Romney

WV

Sutton

WV

Wayne

WY

Afton

Oshkosh Buyers Guide The Park Falls Herald The Platteville Journal
Daily Register The Racine Journal Times
Reedsburg Times Press Star Journal
The Sauk Prairie Eagle Shawano Leader Spooner Advocate
Stevens Point Buyers Guide Westosha Report Westine Report
The Times Walworth The County Journal
Waterford Post Times Publishing Company
Waukesha Freeman Waupaca County Post Wausau Buyers Guide The Waushara Argus West Bend Daily News
The Chronicle Whitewater Register Wisconsin Dells Events Wisconsin Rapids Buyers Guide
Gilbert Times Lincoln Journal Ritchie Gazette Mineral Daily News Tribune Mountain Messenger Montgomery Herald The Fayette Tribune Grant County Press Independent Herald Princeton Times The Star Herald Hampshire Review Braxton Democrat-Central Wayne County News Star Valley Independent

25,000 2,800 4,263 5,555 31,000 1,059 16,000 2,218 7,800 4,229 21,097 800 950 500 1,900 1,600 9,900 12,726 7,300 33,800 5,897 9,343 2,500 1,000 2,288 22,040 1,700 3,000 3,857 4,200 3,045 1,300 2,000 4,060 2,000 1,700 12,179 7,150 3,552 3,045 3,184

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 129 of 151

WY

Casper

WY

Cody

WY

Douglas

WY

Gillette

WY

Landers

WY

Powell

WY

Rawlins

WY

Riverton

WY

Rock Sprints

WY

Sheridan

WY

Sundance

WY

Worland

Casper Star-Tribune The Cody Enterprise
Douglas Budget The News-Record
The Journal The Powell Tribune Rawlins Daily Times
The Ranger Daily Rocket-Miner
Sheridan Press The Sundance Times Northern Wyoming Daily News

31,000 6,089 5,500 9,950 4,191 3,045 3,755 5,400 9,452 7,104 1,642 4,060

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 130 of 151
NP APPENDIX 4:
POSTCARD NOTICE

CaPsleease1r:e0a8d-tmhecb-a0ck0o5f 11-PCLouFrt-OrDdeorecduLemgael Nnottic1e61-6

this card carefully for more information about

Administrator PO Box 0000

your options.

City, State 0000-0000

Filed 03/30/11

Page 131 of 151
PRESORTED
FIRST-CLASS MAIL
U.S. POSTAGE
PAID

If you have questions or need more information, call 1-800-000-0000.

Legal notice about the Black Farmer Settlement

NAME ADDRESS CITY STATE ZIP CODE

CaIsfeY1o:u08a-rmecA-0fr0i5c1a1n-PALmFerDicoacnumanedntS1u6f1f-e6redFiFleadrm03L/3o0a/n11DisPcargime 1in3a2toiof n151 By the USDA between 1981 and 1996,
You may be eligible for money from a $1.25 billion class action Settlement Fund
There is a proposed class action Settlement with the U.S. Department of Agriculture (USDA) involving discrimination against African American farmers from 1981 to 1996. This Settlement is only for certain people who tried to file a late claim in the original Pigford case, or their heirs. The current Settlement (sometimes called Pigford II) provides benefits to some of those late filers. Records from the original Black Farmers settlement in the Pigford lawsuit show that you may be included in this new Settlement.
Am I included? You may be included if you were eligible for a payment in Pigford and filed a claim package or late-filing request that was denied or never considered because it was late. If you are the heir or kin of someone who died who fits this description, you may file a claim for a payment that would become part of the deceased person’s estate. If you are not sure if you or a relative are included, please call 1-800-000-0000.
What can I get from the Settlement? You may be eligible for a substantial cash payment and/or USDA loan forgiveness from the Settlement. You will need to file a claim to be eligible for these benefits. The claims deadline may be as early Month 00, 2012.
What are my other options? If you want to object/comment on the Settlement or appear at the hearing, you need to send a letter to the Court by Month 00, 2011. The Court will hold a hearing on Month 00, 2011 to consider whether to approve the Settlement and a request for attorneys’ fees and expenses between $__ and $__. You or your own lawyer may ask to appear and speak at the hearing at your own cost. Even if you do not file a claim you will not be able to sue the USDA about the issues in this lawsuit.
For more information: 1-800-000-0000 www.BlackFarmerCase.com

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 133 of 151
NP APPENDIX 5:
LONG FORM NOTICE

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 134 of 151
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
	
   If You Are African American and Experienced Farm Loan Discrimination by the USDA between 1981 and 1996,
Or Are the	
  Heir, Kin, or Legal Representative of Someone Who Experienced That Discrimination,
You Could Receive Money From a $1.25 Billion Settlement.

A federal court authorized this notice. You are not being sued.
§ There is a proposed Settlement in a class action lawsuit that claims the U.S. Department of Agriculture (USDA) discriminated against African Americans who applied for farm loans and other benefits between 1981 and 1996.
§ This Settlement is only for certain people who tried to file a late claim in Pigford v. Glickman (“Pigford”), an earlier farm loan discrimination lawsuit by black farmers against the USDA.
§ Your legal rights are affected whether you act or don’t act, so please read this notice carefully.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT

File a Claim

If you qualify, file a claim for a cash payment and in some cases, reduction or forgiveness of outstanding USDA loans. See Questions 6-17.

Object/Comment on Settlement

Tell the Court what you think about the Settlement. See Question 25.

Go to a Hearing

Ask to speak in Court about the Settlement. See Question 28.

Do Nothing

You will not receive an award under the Settlement, and you will give up your rights to sue the USDA about the discrimination claims in this lawsuit in the future. See Questions 24 and 29.

§ These rights and options—and the deadlines to exercise them—are explained in this notice.
§ The Court in charge of this case still has to decide whether to approve the Settlement. Payments will not be made until after the Court approves the Settlement, any appeals are resolved, and all eligible claims have been decided. Please be patient.

Case 1:08-mc-00511-PLF Document 161-6 Filed 03/30/11 Page 135 of 151
WHAT THIS NOTICE CONTAINS
	
  
BASIC INFORMATION……………………………………………………………..……………PAGE X 1. Why is there a notice? 2. What is the Pigford case and how does it relate to this Settlement? 3. What is the current Settlement about? 4. Why is this a Class Action? 5. Why is there a Settlement?
WHO IS INCLUDED IN THE SETTLEMENT………………….…………………………………..PAGE X 6. Am I a Class Member? 7. How do I know if I am a Late Filer or a Late-Late Filer? 8. How do I know if I already received a determination on the merits of my Pigford claim? 9. If I am a Class Member, am I eligible for an award under the Settlement?
AWARDS UNDER THE SETTLEMENT …………………........……….…...……………………PAGE X 10. What does the Settlement provide? 11. How much will I be paid? 12. What is the difference between the Track A and Track B claims processes? 13. Who will decide whether I am eligible for an award? 14. What USDA loans are eligible for reduction or forgiveness? 15. Can I get another farm loan if I get my loan reduced or forgiven? 16. What happens if the Court does not approve the Settlement?
THE LAWYERS REPRESENTING YOU AND HOW TO FILE A CLAIM……….……………………PAGE X 17. How do I become eligible to receive a payment? 18. Do I have to hire a lawyer to help me fill out the Claim Form? 19. Do I have a lawyer in the case? 20. May I talk to Class Counsel in person about the Settlement and my claim? 21. How will Class Counsel be paid? 22. May I hire my own lawyer? 23. When will I get my payment? 24. Am I giving up any rights under the Settlement?
OBJECTING TO THE SETTLEMENT.….…………………………………………………….….PAGE X 25. How do I tell the Court if I don’t like the Settlement?
THE COURT’S FAIRNESS HEARING.…………………..………………………………………PAGE X 26. When and where will the Court decide whether to approve the Settlement? 27. Do I have to come to the hearing? 28. May I speak at the hearing?
IF YOU DO NOTHING……………….…………………..……………………………………...PAGE X 29. What happens if I do nothing at all?
GETTING MORE INFORMATION…………………….…………...……………………………..PAGE X 30. How do I get more information?

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BASIC INFORMATION
1. Why is there a notice?
A class action Settlement has been reached between certain African American farmers and the United States Department of Agriculture (USDA). If you are eligible for benefits from this Settlement, you have a right to know about it and about all of your options before the Court decides whether to approve the Settlement. This Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for those benefits, and how to get them.
Judge Paul Friedman of the United States District Court for the District of Columbia is overseeing this class action. The case is known as In re Black Farmers Discrimination Litigation, and the case number is 08-mc-0511 (D.D.C.). The people who sued are called Plaintiffs and the person they sued, the Secretary of the USDA, is called the Defendant.
2. What is the Pigford case about and how does it relate to this Settlement?
In 1999, a lawsuit called Pigford v. Glickman (“Pigford”) was settled. The lawsuit involved claims by African American farmers that the USDA had discriminated against them between 1981 and 1996 based on race, wrongfully denying them farm loans, loan servicing, and other benefits, or giving them loans with unfair terms. Many people who may have been entitled to benefits under that settlement did not file timely claims.
The Court in Pigford allowed people to file a petition (“Late-Filing Request”) to request that their claims be considered after the original claims deadline (October 12, 1999). The Late-Filing Request had to be submitted by September 15, 2000. If those people could not demonstrate that that their late filing was due to “extraordinary circumstances beyond their control,” their claim in Pigford was denied. For purposes of this notice, these denied people are called “Late Filers.”
Many additional people filed Late–Filing Requests on or after September 16, 2000 and on or before June 18, 2008, and were also denied participation in Pigford due to the lateness of their claim. For purposes of this notice, these people are called “Late-Late Filers.”
Late Filers and Late-late Filers from the Pigford case may be eligible to file claims under this new Settlement.
3. What is the current Settlement about?
This new Settlement involves the same type of claims that were the subject of the Pigford settlement. Specifically, it involves claims by African American farmers that the USDA discriminated against them between 1981 and 1996 based on race, wrongfully denying them farm loans, loan servicing, and other benefits, or giving them loans with unfair terms. The current Settlement will only provide cash payments and debt relief to Late Filers and Late-Late Filers in Pigford who did not have their Pigford claims determined on the merits. (See Question 8 for an explanation of “determined on the merits.”). Congress has approved $1.25 billion to pay claims and other expenses under this Settlement.
4. Why is this a Class Action?
In a class action lawsuit, one or more people called “Class Representatives” sue on behalf of other people who have similar claims. All these people together are a “Class” or “Class Members.” One court decides all the issues in the lawsuit for all the Class Members.

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5. Why is there a Settlement?
The Court has not decided in favor of the Class or the USDA. Instead, both sides have agreed to a Settlement, which is an agreement between the Class and the USDA. That way, both sides avoid the cost and risk of continuing the case, and Class Members who prove they experienced discrimination will receive money without having to go through with individual lawsuits. The Class Representatives and the lawyers representing them think this Settlement is best for all Class Members.
WHO IS INCLUDED IN THE SETTLEMENT?
The Settlement Agreement provides relief to individuals who are both Class Members and who, in addition, are able to meet a series of specific requirements for receiving an award. How to determine if you are a Class Member and the additional requirements for receiving an award are described below.
6. Am I a Class Member?
To know if you may receive money from this Settlement, you first have to know if you are a Class Member. To be a Class Member, you must:
1. Be a Late Filer or Late-Late Filer; and 2. Have not already received a determination on the merits of your discrimination claim in Pigford.
7. How do I know if I am a Late Filer or a Late-Late Filer?
A neutral company appointed by the Court to serve as Claims Administrator has information on people who filed Late-Filing Requests in the Pigford case. This information will help them determine if you filed a Late-Filing Request and whether you are a Late Filer or a Late-Late Filer.
§ Late Filers are people who submitted Late-Filing Requests on or between October 13, 1999 and September 15, 2000.
§ Late-Late filers are people who submitted Late-Filing Requests on or between September 16, 2000 and June 18, 2008.
You may submit any additional documents to the Claims Administrator that help prove you are a Late Filer or Late-Late Filer.
To find out if the Claims Administrator has you listed as a Late Filer, or has documentation indicating you may be a Late-Late Filer, call 1-800-xxx-xxxx.
8. How do I know if I already received a determination on the merits of my Pigford claim?
Only a Late Filer or Late-Late Filer who has not previously received a determination on the merits of his or her Pigford claim is a Class Member. You received a determination on the merits if:
1) Your Pigford claim was approved or denied, 2) Your Pigford claim was determined to be defective by the Pigford Facilitator, or 3) Your Pigford Late-Filing Request was approved and you then failed to file a claim on time.

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The Claims Administrator has a list of everyone who received a determination on the merits of their claims in Pigford. To see if your name is on this list, call the Claims Administrator at 1-800-xxx-xxxx.
9. If I am a Class Member, am I eligible for an award under the Settlement?
If you are a Class Member (you are a Late Filer or a Late-Late Filer and did not receive a determination on the merits of your Pigford claim), the Court has said you may be eligible for an award under the Settlement if you, or the person on whose behalf you are filing a claim, can meet ALL of the following criteria:
a) You are an African American;
b) You farmed or attempted to farm between January 1, 1981 and December 31, 1996;
c) You owned or leased, or attempted to own or lease, farm land between January 1, 1981 and December 31, 1996;
d) Between January 1, 1981 and December 31, 1996, you applied or tried to apply to the USDA for participation in a federal farm credit or benefit program(s) and believe that you were discriminated against on the basis of race in the USDA’s response;
e) You experienced one of the following :
§ Were denied participation in a federal farm credit or benefit program(s); or § Participation was provided late, approved for a lesser amount than you requested, or
burdened by restrictive conditions; § Received a loan with unfair terms; or § Did not receive appropriate loan service from the USDA;
f) You suffered economic loss as a result of the USDA’s treatment of your application(s) for participation in a federal farm credit or benefit program(s) or as a result of inappropriate loan service by USDA; and
g) You complained of discrimination to an official of the United States Government on or before July 1, 1997 regarding USDA’s treatment of you.
If you are the heir or legal representative of someone who died who fits this description, you may file a claim for payment that would become part of the deceased person’s estate.
AWARDS UNDER THE SETTLEMENT
10. What does the Settlement provide?
Congress has provided $1.25 billion to settle this lawsuit. This money is called the Settlement Fund. After deducting certain amounts, including the costs of administering this Settlement and attorneys’ fees and expenses (see Questions 21 and 22), the remaining Settlement Fund will be distributed to Class Members whose claims are approved by a Court-appointed Neutral (see Questions 13). In addition to cash payments, the Settlement will also provide reductions or forgiveness of USDA loans for certain Class Members who qualify.

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A complete description of what the Settlement provides is in the Settlement Agreement. You can get a copy of the Settlement Agreement by visiting www.BlackFarmerCase.com, or by calling toll-free, 1-800xxx-xxxx.

11. How much will I be paid?

The actual payments for successful claims cannot be determined yet. The amount of money people who file successful claims are eligible to receive will depend on whether they file a claim under Track A or Track B. The actual amount any Class Member will receive will also depend on how many successful claims there are.

Track A – Establishes an expedited claims process that will provide people who file successful claims with a cash payment of up to $50,000, plus a payment to be applied to debt owed (if any) to USDA, plus a tax payment worth 25% of that person’s cash and loan awards (see Question 12).

Track B – Establishes a more rigorous claims process that will allow people who file successful claims an opportunity to receive actual damages up to $250,000 (see Question 12).

It is important to note that Congress has approved a limited amount of money for this Settlement. Additionally, there is an overall limit of $100 million to pay Track B claims. Therefore, the cash payments that Class Members will receive could be significantly less than $50,000 for successful Track A claims and significantly less than $250,000 for successful Track B claims.

This chart summarizes what benefits are available for claims under Track A and Track B:

BENEFIT Cash payment
Payment to IRS for taxes owed on cash payment
Loan reduction or forgiveness payment to USDA for outstanding farm loans Payment to IRS for taxes owed as a result of USDA loan reduction or forgiveness payment

TRACK A Up to $50,000
(although your actual amount could be significantly lower)
Up to $12,500
(although your actual amount could be significantly lower)
Depends on your claim and what loans you still owe money on
25% of your loan reduction or forgiveness payment

TRACK B Up to $250,000
(although your actual amount could be significantly lower)
Not available
Not available
Not available

Money to reduce or discharge outstanding USDA loans will be sent directly to the USDA.
Late-Late Filers could receive lower payments than Late Filers. Late-Late Filers may receive only 70% of what Late Filers receive unless there is enough money in the Settlement to pay all Late-Filers in full. If there is enough money to pay all Late Filers in full, then Late-Late Filers could receive more than 70% of what Late Filers receive.

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12. What is the difference between the Track A and Track B claims processes?
If you believe you suffered economic loss greater than $50,000 you may choose to submit your claim under “Track B.” In order to be successful under Track B, you will be required to show, with supporting documents, that:
§ You experienced discrimination in a USDA loan or benefit program at any time between January 1, 1981 and December 31, 1996 (meaning you meet all the criteria listed in Question 9 above);
§ The treatment of your loan application(s) by USDA was less favorable than application(s) filed by a white farmer under similar circumstances (for this element, your supporting document may be a statement signed under oath by a non-family member who has personal knowledge of that less favorable treatment); and
§ You complained between January 1, 1981 and July 1, 1997 to the USDA or other U.S. Government official about the discrimination (for this element, your supporting document may be a statement signed under oath by a non-family member who has personal knowledge that you complained).
The standard of proof for Track B claims is a higher standard than the one that will be applied to Track A claims. This standard requires that you submit documents to support your claim. If you choose to submit a Track B claim and are not successful, you will not be able to receive a Track A payment or loan reduction or forgiveness.
13. Who will decide whether I am eligible for an award?
After you have submitted a Claim Form, it will be reviewed by the Court-approved Claims Administrator to determine if you are a Class Member and whether all of the required information has been provided. If the Claims Administrator determines that the Claim Form is complete and you are a Class Member, the Claim Form will be sent to a Court-appointed neutral person (“Neutral”). That Neutral will review your Claim Form and other evidence you submit and decide whether you have met the requirements for an award under the Settlement. The decision of the Neutral will be final and binding. You cannot appeal the Neutral’s decisions.
14. What USDA loans are eligible for reduction or forgiveness?
You will be eligible for loan reductions or forgiveness only if the Neutral determines that you are eligible for a Track A cash payment. Only those loans in programs that form the basis for your successful Track A claim are eligible for reduction or forgiveness. More information about what USDA loans are eligible can be found in Section X of the Settlement Agreement. Your lawyer will help you determine which of your loans are eligible, if any.
People who file Track B claims are not eligible for any loan reductions or forgiveness (see Question 11).
15. Can I get another farm loan if I get a loan reduced or forgiven?
Yes. Even if you have loans reduced or forgiven, you will be eligible to be considered for new loans from the USDA.
16. What happens if the Court does not approve the Settlement?
If the Court does not approve the Settlement, then it will not become effective and the lawsuit will not move forward as a class action. Instead, you will have to proceed with your own claim separately in the

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federal court in Washington, DC. If that happens, the amount available to pay all successful claims will be limited to $100 million. The Court will announce its decision approving or rejecting the proposed Settlement after the Fairness Hearing (see Question 26).

THE LAWYERS REPRESENTING YOU AND HOW TO FILE A CLAIM

17. How do I become eligible to receive a payment?

In order to be eligible to receive an award under the Settlement, you will need to file a Claim Form with the Claims Administrator within 180 days after the Court finally approves the Settlement. That date is not yet set, but could be as early as Month 00, 2012. If your Claim Form is received after that date, it will not be reviewed and you will not receive any award. You should start the process of filing a claim as soon as possible.

In order to begin the claims process, you should call the Claims Administrator at 1-800-xxx-xxxx. A representative will take certain information from you and provide you with information about speaking with a lawyer (Class Counsel, as described in Question 19) for help with completing the Claim Form. If you choose to do so, you may get a Claim Form on your own and complete it by yourself or with the help of your own attorney. You can get a Claim Form by:
§ Calling: 1-800-xxx-xxxx (or any of the attorneys listed in Question 19) § Visiting: www.BlackFarmerCase.com § Writing: [P.O. Box info]

18. Do I have to hire a lawyer to help me fill out the Claim Form?

No, but it is strongly recommended that you consult a lawyer to help you complete your Claim Form. The Court has appointed lawyers to be available to assist you, at no “out-of-pocket” cost to you (see Question 19). You may also hire your own lawyer (see Question 20). If a lawyer helps you complete your Claim Form, he or she will need to sign the Claim Form before it is submitted to the Claims Administrator.

19. Do I have a lawyer in the case?

Yes. The Court has appointed the following lawyers to represent you and other Class Members as “Class Counsel”:

[counsel]

[counsel]

You do not need to pay any of your own money, or any part of money you receive from the Settlement, to have Class Counsel represent you. Class Counsel will be paid for their work on your behalf from the funds being provided in this Settlement (see Question 21). Class Counsel will assist you in filling out and filing the Claim Form with the Claims Administrator at no out-of-pocket charge to you, as well as answer any questions you may have about the Settlement.

You are encouraged to contact Class Counsel directly, or call the Claims Administrator at 1-800-xxx-xxxx to find out which Class Counsel you should contact.

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Do not be pressured into paying money for help in completing a Claim Form! The Court has already appointed Class Counsel to assist you at no out-of-pocket cost to you. If you do not want Class Counsel to assist you, you may hire your own lawyer, but that lawyer must agree to be paid a limited amount from the Settlement money you receive (see Question 22).
20. May I talk to Class Counsel in person about the Settlement and my claim?
Yes. The Claims Administrator will provide your contact information to Class Counsel, who will contact you. You also may contact Class Counsel on your own at 1-8XX-XXX-XXXX. Additionally, Class Counsel will hold numerous meetings throughout the country to help Class Members fill out Claim Forms. If you are unable to attend one of these meetings and meet with Class Counsel, you are encouraged to contact Class Counsel for help in completing the Claim Form.
21. How will Class Counsel be paid?
Class Counsel will ask the Court for attorneys’ fees and expenses of between 4.1% and 7.4% of the Settlement Fund. The request for attorneys’ fees and expenses will be submitted to the Court by no later than Month 00, 2011. The Court must approve any requests for fees and expenses.
22. May I use my own lawyer instead of Class Counsel?
Yes. However, the Court has decided that prior fee agreements or contracts you may have signed are no longer binding. If you still want to be represented by your own lawyer, you may hire one at your own expense. That lawyer must agree in writing to follow the Court’s orders in this case.
If you hire your own lawyer, that lawyer’s fee will be subtracted by the Claims Administrator from the amount you receive from the Settlement. There are limits on what that fee may be:
§ If you hire your own lawyer to file a Track A claim, the lawyer may not require you to pay him or her more than 2% of the money you receive under the Settlement as the lawyer’s fee.
§ If you hire your own lawyer to file a Track B claim, the lawyer may not require you to pay more than 8% of the money you receive under the Settlement as the lawyer’s fee.
23. When will I get my payment?
No payments will be made until all claims have been decided. That means that it could be two years or perhaps even longer before Class Members who submit valid claims will receive any payments.
24. Am I giving up any rights under the Settlement?
Yes. If the Court gives final approval to the Settlement, whether or not you file a claim, you will not be able to sue or continue to sue the USDA for the discrimination claims being resolved by this Settlement.
The specific claims you are giving up are described in Section X of the Settlement Agreement. The Settlement Agreement specifically describes the released claims, so read it carefully. If you have any questions you can talk to the law firms listed in Question 19 for free or you can talk to your own lawyer at your own expense.

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OBJECTING TO THE SETTLEMENT

25. How do I tell the Court if I don’t like the Settlement?

If you are a Class Member you can tell the Court that you do not like the Settlement or some part of it. This is called “objecting to the Settlement.” For example, you can say that you don’t think the Settlement is fair or adequate, or that you object to the amount of the attorneys’ fees and expenses. The Court will consider your views, but may approve the Settlement anyway.
To object, you or your lawyer must send a letter that contains all of the following:
§ The name and title of the lawsuit, In re Black Farmers Discrimination Litigation, No. 08-mc0511;
§ A statement explaining the basis for your belief that you are a Class Member and eligible for an award under the Settlement;
§ A statement of each objection you have and the basis for those objections; § A description of any law or case supporting the objections; § A statement of whether you or your lawyer wish to appear at the Fairness Hearing to talk about
your objections, and, if so, how long you will need to present your objections; and § Copies of any documents you or your lawyer will present at the Fairness Hearing.
Your objection letter must be postmarked by Month 00, 2011 and mailed to all three of these addresses:

CLERK OF THE COURT
Clerk of the Court United States District Court District of Columbia [address]

LEAD CLASS COUNSEL
Lead Class Counsel [address]

DEPARTMENT OF JUSTICE (COUNSEL FOR USDA)
DOJ [address]

Your lawyer may obtain a copy of the Order containing these additional requirements at www.BlackFarmerCase.com or by calling 1-800-xxx-xxxx.
Any objection that does not meet these requirements may be rejected by the Court.

THE COURT’S FAIRNESS HEARING

26. When and where will the Court decide whether to approve the Settlement?
The Court will hold a Fairness Hearing at X p.m. on Month 00, 2011 at the United States District Court for the District of Columbia, United States Courthouse, [ADDRESS]. At the Fairness Hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. The Court also will consider any objections and Class Counsel’s request for attorneys’ fees and expenses. After the Fairness Hearing, the Court will decide whether to approve the Settlement and the range of fees and expenses it will award to Class Counsel out of the Settlement Fund.

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27. Do I have to come to the hearing?
No. Class Counsel will answer any questions the Court may have. However, you are welcome to attend the hearing at your own expense. If you send in a written objection, you do not have to come to the Fairness Hearing to talk about it. As long as your objection meets the requirements discussed above, the Court will consider it. You also may pay your own lawyer to attend the Fairness Hearing, but that is not necessary.
28. May I speak at the hearing?
Yes. You may ask the Court for permission to speak at the Fairness Hearing. You may also hire an attorney to speak for you. If you (or your lawyer) want to speak at the hearing you must give the Court a paper that is called a “Notice of Appearance.” The Notice of Appearance should say that you intend to speak at the hearing in In re Black Farmers Discrimination Litigation, No. 08-mc-0511. Your Notice of Appearance must be mailed by Month 00, 2012 to the three addresses listed in Question 25.
IF YOU DO NOTHING
29. What happens if I do nothing at all?
If you do nothing, you will not get any money or loan forgiveness from the Settlement. You must submit a Claim Form to get a payment. If the Court approves the Settlement, you will give up your right to sue the USDA about the discrimination claims being resolved by this Settlement.
GETTING MORE INFORMATION
30. How do I get more information about the Settlement?
This Notice summarizes the Settlement. More details are in the Settlement Agreement. You can get a copy of the Settlement Agreement at www.BlackFarmerCase.com or by contacting the Claims Administrator.
Claims Administrator Contact Information
Call: [toll-free #]
Visit: www.BlackFarmerCase.com
Write: [P.O. Box Info]

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NP APPENDIX 6:
PUBLICATION NOTICE

Legal Notice
mc-00511-PLF Document 161-6 Filed 03/30/11 Page
If You are African American and Suffered Farm Loan Discrimination by the USDA
between 1981 and 1996,
You may be eligible for money from a $1.25 billion class action Settlement Fund
(Heirs/Kin may be included)
There is a proposed class action Settlement with the U.S. Department ofAgriculture (USDA) involving racial discrimination againstAfrican American farmers between 1981 and 1996. This Settlement is only for certain people who tried to file a late claim in the original Pigford case, or their heirs (kin) and legal representatives. The current Settlement (sometimes called Pigford II) provides benefits to some of those late filers.
Am I included?
You may be included if you: • Between 1981 and 1996, were discouraged or prevented from
applying for or were denied a USDA farm loan or other benefit, or you were given a loan with unfair terms because of racial discrimination, • Were eligible for a payment in the original Pigford case, and • Submitted a late-filing request that was denied or never considered because it was late. If you are the heir or kin of someone who died who fits this description, you may file a claim for a payment that would become part of the deceased person’s estate. If you are not sure if you (or someone for whom you are the legal representative) are included, please call 1-800-000-0000.  You are not included if you received a payment in the original Pigford case.
What does the Settlement provide?
You may be eligible for a substantial cash payment and USDA loan forgiveness from the Settlement. You will need to file a claim to be eligible for these benefits. The claims deadline may be as early Month 00, 2012. The Court has appointed lawyers to help you file a claim under the Settlement. You do not have to pay them or anyone else to help you with the claims process. These attorneys will ask the Court for fees and expenses of between 4.1% and 7.4% of the Settlement Fund, and the Court will decide how much they are paid. You may hire your own lawyer, if you wish, at your own expense. If you have questions or need more information, call 1-800-000-0000.  
What else should I know? The Court will hold a hearing on Month 00, 2011 to consider whether to approve the Settlement and a request for attorneys’ fees and expenses. If you want to object to or comment on the Settlement or appear at the hearing, you need to send a letter to the Court by Month 00, 2011. If the Court approves the Settlement, you will not be able to sue the USDA about your farm loan discrimination claims in the future.
For more information or to begin the claims filing process:
Call: 1-8XX-XXX-XXXX Visit: www.BlackFarmerCase.com

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NP APPENDIX 7:
RADIO AD

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RADIO AD SCRIPT
:60 second This is a Court-ordered legal notice. A 1.25 billion-dollar proposed settlement has been reached with the federal government about claims of racial discrimination by the U.S. Department of Agriculture. If you are African American and were denied a farm loan or other benefit or received a loan with unfair terms from the USDA between 1981 and 1996, you could be eligible for a cash payment and USDA loan forgiveness. To qualify, you must have tried to file a claim that was considered late in the original Pigford black farmers discrimination case. If you fit this description or you are the heir or kin of someone who did, you should learn about the settlement, your legal rights, and how to file a claim. Deadlines will pass soon and this is your final chance for a payment. For more information, go to Black Farmer Case dot com or call 1-800-000-0000. That’s 1-800-000-0000.

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NP APPENDIX 8:
PUBLIC SERVICE ANNOUNCEMENTS

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PUBLIC SERVICE ANNOUNCEMENT SCRIPTS
:60 second This is a Court ordered notice. Thousands of black farmers who were discriminated against by the USDA may be eligible to get a cash payment and USDA loan forgiveness from a $1.25 billion Settlement. You may be included in the Settlement if you are African American and were denied a farm loan or other benefit or received a loan with unfair terms from the USDA between 1981 and 1996. To qualify, you must have tried to file a claim that was considered late in the original Pigford black farmers discrimination case. If you fit this description or you are the heir of someone who did, you should learn about the settlement, your legal rights, and how to file a claim. The earliest deadline to act on your rights is Month 00, 2011. For more information, go to Black Farmer Case dot com or call 1-800-XXX-XXXX. That’s 1-800-XXX-XXXX.
:30 second This is a Court ordered notice. Thousands of black farmers who were discriminated against by the USDA may be eligible to get a cash payment and USDA loan forgiveness from a $1.25 billion Settlement. If you are African American farmers who tried to get a farm loan or other benefit from the USDA between 1981 and 1996, you may be included in this Settlement. To learn more about the Settlement go to Black Farmer Case dot com or call 1-800-XXX-XXXX. That’s 1-800-XXX-XXXX.
:20 second Thousands of black farmers who were discriminated against by the USDA may be eligible to receive a cash payment and USDA loan forgiveness from a $1.25 billion Settlement. To learn more go to Black Farmer Class dot com or call 1-800-XXX-XXXX.

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:20 second (alternate – script for live reads only if required by station) Today's program is sponsored by the Black Farmers Discrimination Settlement - Informing African Americans who tried to get a farm loan or other benefits from the USDA between 1981 and 1996, that they may get benefits from a proposed settlement of discrimination claims. To learn more go to Black Farmer Case dot com or call 1-800-XXX-XXXX.

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EXHIBIT 6
to the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of a Rule 23(b)(1)(B) Class, And for Other Purposes
In re Black Farmers Discrimination Litigation Case No. 08-mc-0511-PLF (D.D.C.)
Order of July 14, 2000

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EXHIBIT 7
to the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of a Rule 23(b)(1)(B) Class, And for Other Purposes
In re Black Farmers Discrimination Litigation Case No. 08-mc-0511-PLF (D.D.C.)
Qualifications of Epiq Systems, Inc.
(Proposed Claims Administrator)

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Epiq Systems Inc.
Class Action & Claims Solutions March 16, 2011
Submitted by: Epiq Systems, Inc. Class Action & Claims Solutions 10300 SW Allen Blvd Beaverton, OR 97005

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1.0 Introduction and Overview
Epiq Systems, Inc. is a leading provider of integrated technology products and services for the legal profession. Our software applications and Web-based platforms offer case management and document management solutions for legal notification, claims administration, and controlled disbursement.
Top law firms, corporate legal departments, bankruptcy trustees, and other legal professionals rely on Epiq Systems for full lifecycle support of administratively complex matters spanning bankruptcy, class action, settlements, financial transactions, litigation and regulatory compliance. We offers clients extensive professional services based on deep subject matter expertise and years of firsthand experience working on many of the largest, most high profile and complex client engagements.
Epiq Systems, Inc. has nine locations in the United States and United Kingdom and trades on the NASDAQ national market under the symbol EPIQ.
Epiq Systems offers a comprehensive solution from case startup and noticing, through the disbursement and closeout phases of a project. Utilizing proven project management methodologies, Epiq’s skilled team of Project Managers and Client Services professionals ensure accuracy, timeliness, and cost efficiency for clients.
1.1 Company Information
Epiq Class Action & Claims Solutions, Inc. (Epiq) is an industry leader in class action and mass tort claims administration, especially in matters with specialized implementation requirements. While Epiq administers cases of all sizes and scope, we are recognized as the leader in large and complex case administration. Epiq’s Portland facility is a 98,000 square foot building with on-site call center, ondemand printing, and mail center.
Our success stems from our development and repeated enhancement of case management tools and project management methodology targeted to the legal administration market, backed by the power of our proprietary software application - ClaimsMatrixTM. Our experts pioneered the class action claims administration process and designed our approach based on unmatched depth of experience, identifying best practices, putting controls in place, and then replicating and refining this process for decades, across hundreds of cases. Our process provides an unmatched, end-to-end class action approach to claims administration.
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Worldwide, Epiq employs over 600 subject-matter experts, paraprofessionals, software engineers, project managers and claims specialists. Of these 600, more than 175 are employed in our dedicated processing facility in Oregon.
1.2 Project Management Plan and Implementation
After a project is awarded to Epiq, a project team is assembled to work with the client to document eligibility rules for the matter, coordinate data transfer, and begin the initial process. The Project Manager assigned to a project develops a comprehensive Project Management Plan, focusing on meeting all key deliverables, milestones, and ensure quality and accurate execution of all tasks.
Clients have direct access to a Project Manager at Epiq who handles day-to-day communication and coordinates the various administrative tasks. All case activity and status updates will be available through the Project team.
To implement the project successfully, Epiq leverages its capabilities from startup to closeout to complete all services within the scope of the contract. These areas are described in the section below, along with details relevant to each section.
1.2.1 Claims Support & Contact Center
Epiq has a full service, in-house contact center in its Portland, Oregon facility with a 200-seat for call center agents and 24x7 flexibility for caller support, depending on a project’s needs. The call center is nimble and flexible with real-time monitoring and alerts to managerial staff. Because the technology is 100% hosted in-house, call flow, message recording, and system changes are managed internally with the benefit of faster turn-around and lower costs. The contact center also provides real-time chat solutions and email support. The system employs VOIP (Voice-Over Internet Protocol) technology that has many benefits over more traditional call center solutions. Managers are more aptly served through the use of this technology, because they can maximize the use of call center staff while ensuring a pleasant and timesensitive experience for the caller. Epiq employs seasoned agents who have interacted with callers on hundreds of settlements Epiq has administered. With that experience, there is an unparalleled expertise we pass on to our callers. Interaction with the call center is one of speaking with coherent, courteous and knowledgeable agents who help you to navigate the often complex and multi-phased components usually inherent in a settlement claim. To further ensure the quality of the experience and the accuracy of the information disseminated, calls are anonymously monitored both real-time and after-the-fact through digital call recordings.
Agents have multiple tools available to assist in the delivery of information to callers. Ready Reference® is an intranet-based tool that “scripts” information about the relevant settlement through questions and answers of the most commonly discussed topics. Ready Reference® is an organic, interactive knowledge management tool that is updated as the settlement progresses. Call Center Agents also see available information about the incoming call – including the incoming phone number, length of time in queue and total length of the call. This
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can be helpful to the agent in understanding the caller’s immediate experience and better informs their interaction with the caller. While the capacity to expand is not always a critical factor, distinction with Epiq comes with the quality of agents, depth of relevant experience and access to the tools that maximize the callers’ experience. With our prior case experience and already-trained call center agents, clients can rest assured that the callers’ experiences will be accurate, pleasant and efficient. With real-time monitoring, Epiq is also able to allocate staff as needed to a particular program – all dependent on the amount of incoming calls, number of calls in queue and average hold time. Staffing projections and budget monitoring are also better informed given the detailed, historical information routinely available. 1.2.2 Administrative Services Communication between Clients and the Epiq team will be primarily conducted through the Project Manager at Epiq. Occasionally, additional team members may be responsible for delivery of required reports, data transmittals, and draft communication with claimants. One or more Project Coordinators reporting to the Project Manager over see key functional activities such as notice mailing fulfillment, correspondence handling, weekly activity reporting, contact center quality assurance, and website updates. Claims administration projects are supported by case services departments, including Document Control, Data Capture, and Claims Operations. Support staff in Document Control are responsible for the receipt, opening, intake, tracking and routing of all incoming mail. All mail pieces are tracked using unique document numbers or mail identification numbers for quality assurance, SLA monitoring, and proper workflow assignment. After intake and logging, documents are moved to OCR/Scanning for data capture and imaging. Depending on process flow for a project, images are then routed for further review and processing by Claims Operations or the Client Services case team managing the project. Key statistics about Epiq’s internal processes and activities are available to clients via a secure, near-real-time reporting portal called Dashboard. The Dashboard is linked to production databases in ClaimsMatrixTM and provide for secure access to At-a-Glance counts, search functionality, reporting, and access to the images of documents received.
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1.2.3 Claims Review and Eligibility Determination
Epiq reviews submitted claims forms and any accompanying documentation under strict service level timelines to determine the timeliness, completeness and eligibility. At project launch, business rules and processing workflows are created based on the terms of the Settlement Agreement and in consultation with the parties. Experienced analysts in the Claims Operations group, ranging from document review specialists to lawyers, review the claims forms and conduct quality assurance sampling and audit. Depending on the claim form requirements and established evidentiary review, Epiq will also route the claim and documentation to other neutrals and the parties, as needed, and track response deadlines and responses. In the Pigford Settlement, Epiq, as Facilitator, is the records custodian and responsible for screening the Claim Sheet and Election Forms for class membership eligibility, as well as the entity that routes claims and claim responses to USDA, the Adjudicator, the Arbitrator, and the Monitor. Epiq sends letters to claimants on a rolling basis to notify of any deficiencies with a submission. The incomplete claim notices include specific details and explanations on how to remedy any deficiencies and a clear, plain language statement about the deadline by which a response is required to be deemed accepted. Epiq uses internal case management tools to track and monitor processing timelines and ensure any such claimant communications are mailed in a reasonable timeframe and with adequate time to respond, adhering to any settlement terms.
1.2.4 Distribution Services
Following the completion of all required steps for claims review and final determinations, Epiq coordinates the payment of settlement awards through distribution of checks, or other forms of award or compensation, to prevailing claimants. All checks are printed in-house by Epiq, ensuring quick and accurate payment to all eligible claimants once payment amounts have been approved.
Epiq has breadth of experience in the distribution of awards on qualifying claims. Fund management and disbursement services are handled on-site by accounting and tax professionals. Rigorous controls are followed that exceed banking and federal governmentsector security and audit standards.
Checks are printed on-site with MICR encoding and secure check stock. All financial instruments are handled with dual custody and in areas secured by access keys and recorded digital camera monitoring. Daily account reviews are conducted and positive pay presentments escalated to the business unit. Monthly reconciliations and account reporting will be made available for review.
The following are services that Epiq can provide to aid in meeting tax requirements for a Qualified Settlement Fund if relevant:
• Complete Form SS4 to establish TIN for fund. • Summarize activity in Settlement Fund for preparation of U.S. Income Tax Return.
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• Estimate and make quarterly payments to qualified depository in timely manner. • Prepare Form 1120-SF for qualified settlement fund and file with necessary payments. • Respond to any communication from the IRS and provide representation at any
meetings and/or examinations concerning the settlement funds by the IRS.
2.0 Infrastructure Use and Data Security
Epiq offers comprehensive technical capabilities to deliver a complete solution for a project. Our technical services group has vast experience handling the most sensitive and complex data and applications for clients across a range of industries, from financial and healthcare to manufacturing and services. Our infrastructure, processes, and procedures have passed the rigorous, independent audits of bank and insurance clients. We conduct independent third-party control audits and have current SAS 70 audit reports available.
Epiq has extensive experience and has led the way technically in the administration of large and complex legal matters. We have had numerous cases in which we have demonstrated performance in on-line claims filing, electronic noticing and interactive claims administration where multiple parties participate in a multi-step adjudication process. Our applications can be engineered to integrate all phases of administration including the tracking and escalation of claimant phone calls and inquiries.
Epiq has also been a pioneer in on-line claims filing. We understand the unique care this area requires, and we have experience with a variety of approaches, depending on the class member demographic, the settlement terms, and business rules. For example, solutions for on-line claims filing can be as simple as providing a Claim Form that can be filled out on-line, tracked in the database, printed, signed and mailed by the client for processing and adjudication. It can also be a completely on-line experience where claimant authentication is required and access to claimant specific data is used to help the claimant file the claim electronically.
Epiq Systems maintains hundreds of millions of rows of data across a wide range of classifications. For sensitive data, including Personally Identifiable Information (PII), Epiq’s data management systems not only meet, but exceed, information security and data management regulations as specified by SAS-70, FISMA, HIPAA, DIACAP, and PCI-DSS. Additionally, Epiq Systems’ approaches to meet various information security requirements also meet Secret and Below Interoperability (SABI) compliance requirements.
Epiq utilizes pre-existing management processes, years of operations and maintenance experience with complex systems, and proven infrastructure to deliver the most value to the client. The systems that we utilize support 24/7 operations, are architected for redundancy (i.e., no critical single points of failure), and have a business continuity management strategy in place.
Epiq takes the protection of personal information very seriously. Epiq will receive encrypted data files from clients using SSH File Transfer Protocol or SFTP. The data elements sent by the client may vary from case to case and may include personally identifiable information (PII) such as: full name, address, telephone numbers, date of birth, and social security number.
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Once Epiq has retrieved the data, it will be processed and stored in Epiq’s secure network. Epiq uses a Microsoft SQL Server 2008 platform for data storage, and our database and application solution includes the SAS 70 certification and Sarbanes-Oxley coverage. Epiq staff, including processing and technical support personnel, will have access to the ClaimsMatrix™ Database. IT specialists and Epiq technical and operational program managers will access ClaimsMatrix™ and the ClaimsMatrix™ Database to ensure system performance and to audit the use of the system. All of these users and other authorized users, whose identity and need for access have been validated, will have varying levels of access to ClaimsMatrix™.
Epiq maintains access levels at the physical, software, and database levels. In addition to the many layers of data security, Epiq data processing facilities are physically secured – at the perimeter and within datacenters – through the use of electronic key cards and monitoring equipment. All employees must display badges at all times. Anyone visiting our facility must sign in and out, and be accompanied by an employee at all times.
3.0 Key Personnel
Several factors distinguish Epiq Systems as the provider of choice. In addition to our qualifications and proven past performance, Epiq employs a team of skilled and qualified industry experts in the legal noticing and claims administration fields, as well as an array of professionals with years of contact center, application development, and data analysis experience. Combined with the resources available to Epiq as an industry leading provider of claims administration and legal noticing services, this team’s strengths will ensure timely, accurate, and successful execution.
To support the Black Farmers Discrimination Litigation, Nicole Hamann, Vice President of Client Services, will oversee the project. Richard Bithell, Esq., will be the assigned Project Manager. Richard managed the day-to-day activities on the Pigford matter for many years and has a multitude of experience on discrimination cases, as well as other matters. He is a licensed attorney and will oversee all aspects of case administration, including design and implementation of the business rules, budgeting, personnel management, and quality assurance.
4.0 Past Performance
Epiq is a neutral claims administrator that facilitates the claims administration process under the terms of a negotiated settlement and with direction from the parties. Epiq’s depth of case experience, claimant support services, and understanding of the practical implications of the terms of a negotiated Settlement Agreement provide for expert consultation and recommendations to achieve your goals.
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With over 40 years of experience in data management and claims administration, and a highly qualified team of subject matter experts, choosing Epiq ensures timely, accurate, efficient and cost effective administration of class action settlements. Epiq has handled hundreds of complex administration matters and currently hosts more than
400 class action cases on the ClaimsMatrixTM platform. Annually, Epiq mails over 50 million pieces of first-class mail directly from our Portland facility, processes hundreds of thousands of documents, prints more than 15 million checks, and manages nearly $2 billion in fund deposits.
Below are several highlights of relevant past projects administered by Epiq.
COURT-APPOINTED PIGFORD FACILITATOR Epiq, formerly Poorman-Douglas Corporation (founded in 1968), was appointed as the Facilitator in 1999 for Pigford v Glickman and continues to serve in the role during the winddown activities of the Settlement. Epiq processed and reviewed over 22,700 eligible claims and has maintained communications and documents for tens of thousands other members of the public. Epiq has paid over a billion dollars to prevailing claimants and coordinates with the IRS to facilitate appropriate tax deposit payments.
NTIA DTV CONVERTER BOX COUPON PROGRAM When the United States transitioned to fully-digital television broadcasts, the National Telecommunications Information Administration (NTIA) was tasked with overseeing a legislative program to assist the consumer public with understanding the transition and to inform them of benefits, in the form of $40 coupons, used to subsidize the purchase of a converter box should a US Household need them. Epiq was selected as the Consumer Support and Coupon Distribution lead and provided several critical components in this national program, managing all consumer-facing activities, including
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the program website and call center, the database and systems that supported application processing and coupon fulfillment, and the financial system of record.
As part of the solution, we deployed a Section 508 compliant and SSL-secure website capable of accepting applications for coupons, fetching coupon or application status or performing a localized retailer search. We also managed the toll-free hotline and supporting call center, running 24/7 operations during the nineteen months the program accepted requests for coupons. Finally, the program was in-part a success because we provided credit-card like coupon fulfillment with a fourteen day SLA – from intake of a coupon application to the coupons arriving in the mailbox of the US household, assuming eligibility and availability of funds.
Epiq processed over 43 million coupon applications received by web, phone, fax and mail, and mailed over 64 million coupon cards.
The contract was awarded on August 14, 2007 and the program launched on January 1, 2008. The entire program was designed, tested and implemented in less than 120 days.
HARTMAN CLASS ACTION SEX DISCRIMINATION CASE The Hartman v Albright Settlement provided a $508 million settlement fund to resolve claims against the United States Information Agency (USIA), including the Voice of America. It is a class action that was originally filed in 1977 on behalf of woman who had been denied employment in certain professional and technical positions at the former USIA. The case alleged that women had been denied entry into certain positions because of their sex, in violation of Title VII of the Civil Rights Act of 1964.
Epiq was selected as the Claims Administrator in 2000 and managed all aspects of class member support and complex multi‐year awards, involving back pay and non‐wage income. The payments required complex tax reporting and handling of awards and reporting for claimants domiciled outside the United States. The back pay under a statue required detailed communication and reporting with the Social Security Administration and behalf of payees, as well as handling many Estate claims due to the length of the litigation.
The final distribution was in 2004; however, Epiq remains in position as Claims Administrator to resolve IRS and SSA inquiries.
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EXHIBIT 8
to the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of a Rule 23(b)(1)(B) Class, And for Other Purposes
In re Black Farmers Discrimination Litigation Case No. 08-mc-0511-PLF (D.D.C.)
Qualifications of The McCammon Group (Proposed Track A
Neutral)

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The McCammon Group, Ltd.

Since 1995 The McCammon Group, Ltd. (TMG) has been a leader in providing quality mediation, arbitration and related ADR services to disputing parties and their counsel throughout the Mid-Atlantic and the entire country.
TMG now consists of over seventy ADR Professionals, including retired judges and practicing attorneys. Selectively recruited and rigorously trained, these professionals are committed to helping parties and their counsel resolve disputes with better results, less cost, less time, and less acrimony.
Relying on the skills fundamental to ADR, TMG has developed services that go beyond individual case resolution. Specifically, it has been called upon to serve in significant court programs. For example, TMG’s professionals have served as the sole source of neutrals involving claims in the bankruptcy proceedings of Best Products, Hechinger’s, and Heilig Meyers. In 2009 TMG provided both mediation and arbitration services in resolving all the claims (excluding two) arising out of the Virginia Tech Massacre.
In related efforts, TMG has developed a Facilitation, Training, and Consulting Division that provides training, dispute resolution systems design, and related consulting services to corporations, non-profit organizations as well as federal, state, and local governments.
The cornerstone of all these services is TMG’s commitment to quality in the selection and training of its professionals. Throughout their careers these professionals have stood as leaders of the legal profession and now as leaders in the field of ADR. More detailed information is available at www.mccammongroup.com.

Leading Professionals

The McCammon Group proposes that eight of its leading professionals serve in adjudicating the claims in this program. All of them have had exemplary legal careers and bring experience, judgment and integrity to this program. Their full resumes are attached.

Robert J. Grey, Jr. The Honorable Rufus G. King The Honorable Elizabeth B. Lacy The Honorable Paul R. Michel The Honorable Barry R. Poretz The Honorable William C. Pryor Pauline A. Schneider Robert P. Watkins

former President, ABA former Chief, Superior Court of DC former Justice, Supreme Court of Virginia former Chief, Federal Circuit, U.S. Court of Appeals former U.S. Magistrate Judge, Alexandria Div., E.D. VA former Chief, DC Court of Appeals Partner, Orrick, Hennington & Sutcliffe LLP Senior Counsel, Williams & Connolly

These professionals will make all the hard decisions. In so doing, they will be supported by the human and technological resources of TMG. Also assisting will be BrownGreer PLC, a national leader in claims processing. Under the leadership of these eight TMG professionals, BrownGreer’s specially trained lawyers will address the more routine aspects of the claims process. (Please see page 10 for a profile of BrownGreer PLC.)

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ROBERT J. GREY, JR., ESQUIRE
Areas of Experience
Administrative litigation involving franchising, licensing, and disciplinary matters before state agencies; legislative representation of trade associations and corporate interests before the Virginia General Assembly. Mediation experience includes personal injury, labor and employment, construction, public policy, and commercial disputes.
Credentials
• Partner, Hunton & Williams, Richmond and District of Columbia. • Former President, American Bar Association, 2004-2005. • Member, Council of the Section of Dispute Resolution, American Bar
Association. • Certified Mediator, Supreme Court of Virginia. • Board Member, Legal Services Corp. • Executive Director, Council of Legal Diversity. • Chairman of the Board, Central and East European Law Initiative
(CEELI), American Bar Association. • Former Chair, Virginia Alcoholic Beverage Control Board. • Former Member, Board of Directors, Virginia Biotechnology Research Park. • Former Member, Board of Directors, Greater Richmond Partnership. • Former Chair, Greater Richmond Chamber of Commerce. • Former President, Young Lawyers Conference, Virginia State Bar. • Member, Board of Trustees, Washington & Lee University. • Former Member, Board of Visitors, Virginia Polytechnic Institute and
State University. • Former Member, VCU and William & Mary Business Councils. • Washington & Lee University School of Law, J.D.
Virginia Commonwealth University, B.A.
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HONORABLE RUFUS G. KING, III (RET.)
Areas of Experience
Personal Injury, medical malpractice, product liability, family law, employment, contracts, construction, real estate, condemnation, and trusts & estates.
Credentials
• Chief Judge, Superior Court of the District of Columbia, 2000-2008. • Chair, Civil Division of the Superior Court of the District of Columbia,
1997-1998. • Deputy Presiding Judge, Civil Division of the Superior Court of the District
of Columbia, 1994-1996. • Associate Judge, Superior Court of the District of Columbia, 1984-2000. • Former Chair, Superior Court Child Support Guidelines Committee. • Former Chair, Committee on Technology and Automation. • Founding Member, District of Columbia Criminal Justice Coordinating
Council. • Chair, the National Conference on Metropolitan Courts. • Member, Board, National Center for State Courts. • Member, Bar Association of the District of Columbia. • Member, Washington Bar Association. • Member, American Law Institute. • Georgetown University Law Center, J.D.
Princeton University, B.A.
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HONORABLE ELIZABETH B. LACY (RET.)
Areas of Experience
Regulatory and administrative law, personal injury, medical malpractice, product liability, contracts, general commercial, antitrust, employment, trusts and estates, consumer, construction, real estate, professional liability, condemnation, and environmental law.
Credentials
• Senior Justice, Supreme Court of Virginia, 2007-present. • Justice, Supreme Court of Virginia, 1989-2007. • Judge, Virginia State Corporation Commission, 1985-1989. • Former Deputy Attorney General, Office of the Attorney General of
Virginia. • Former Assistant Chief, Office of the Attorney General of Texas. • Former Staff Attorney, Texas Legislative Council. • Professor, T.C. Williams School of Law, University of Richmond. • Certified Mediator, Supreme Court of Virginia. • Recipient, Distinguished Service Award, Virginia Trial Lawyers
Association. • Recipient, Gerald L. Baliles Distinguished Service Award, Virginia Bar
Association. • Recipient, Robert R. Merhige, Jr., Outstanding Achievement Award, John
Marshall American Inn of Court, 2002. • Chair, Board of Governors, Administrative Law Section, Virginia State Bar. • Former Chair, Education of Lawyers Section, Virginia State Bar. • Chair, Section of Legal Education and Admissions to the Bar responsible for
law school accreditation, American Bar Association. • Member, Advisory Board, Central and East European Law Initiative
(CEELI), American Bar Association. • University of Virginia School of Law, LL.M.
University of Texas Law School, J.D. Saint Mary’s College, B.A.
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HONORABLE PAUL REDMOND MICHEL (RET.)
Areas of Experience
All forms of federal law disputes with a specialty in intellectual property matters as well as international trade, government contracts, federal employment, veteran affairs, class actions, and appellate and commercial matters generally.
Credentials
• Chief Judge, United States Court of Appeals, Federal Circuit, 2004-2010. • Judge, United State Court of Appeals, Federal Circuit, 1988-2004. • Appointed to the Judicial Conference of the United States, 2005. • Former Legislative Assistant, Counsel, and Chief of Staff for Senator
Arlen Spector. • Former Acting Deputy Attorney General and Acting Attorney General. • Former co-chair, Inter-agency Committee to Combat Terrorism. • Former Associate Deputy Attorney General. • Former Deputy Chief, Justice Department’s Public Integrity Section. • Former Assistant Counsel, United States Senate Select Committee on
Intelligence. • Former Assistant Watergate Special Prosecutor. • Recognized for countless prizes and awards, including, Judicial Honoree
Award, Bar Association of the District of Columbia, 2008; Honorary Doctor of Laws Degree, Catholic University, May 2010. • Author of numerous articles, including, “The Court of Appeals for the Federal Circuit must Evolve to Meet the Challenges Ahead.” The American University Law Review, August 1989; “A View from the Bench: Achieving Efficiency and Consistency,” Temple Environmental Law and Technology Journal, Fall 2000. • University of Virginia, J.D. Williams College, B.A.
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HONORABLE BARRY R. PORETZ (RET.)
Areas of Experience
Extensive federal court experience including but not limited to employment, intellectual property, complex business torts, contracts, and personal injury. State court experience including but not limited to medical malpractice and product liability.
Credentials
• US Magistrate Judge, Eastern District of Virginia, 1992-2008. • Former Resident Partner, DC and Fairfax offices, Jordan, Coyne, Savits and
Lopata. • Former Partner, Lainof, Cohen, Weinstein and Poretz. • Former Assistant Commonwealth’s Attorney, Alexandria, VA. • Certified Mediator, Supreme Court of Virginia. • Former Master, George Mason Inn of Court. • Former Executive Board Member, Alexandria Bar Association. • Past Director, Foundation of the Alexandria Bar Association. • Former Member, Fairfax Bar Association. • Former Member, District of Columbia Bar Association. • Federal Bar Association, Northern Virginia Chapter (Judicial Member). • Federal Magistrate Judges Association. • Former Member, Virginia Trial Lawyers Association. • Former Faculty Member, Professionalism Course, Virginia State Bar. • Former Member, Board of Directors, Alexandria Hospital. • Columbus School of Law, Catholic University, J.D.
University of Virginia, B.A.
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HONORABLE WILLIAM C. PRYOR (RET.)
Areas of Experience
Personal injury, product liability, medical malpractice, employment, contracts, construction, real estate, governmental issues, professional liability, and defamation.
Credentials
• Has served as a Senior Judge, District of Columbia Court of Appeals. • Former Chief Judge, District of Columbia Court of Appeals. Former Associate
Judge, District of Columbia Court of Appeals. • Former Associate Judge, District of Columbia Court of General Sessions
(later, the Superior Court). • Former Assistant United States Attorney for the District of Columbia. • Former Corporate Counsel: Chesapeake & Potomac Telephone Co.; Ohio
Bell Telephone Co. • Former Attorney, Department of Justice Attorney General’s Honor Program,
Civil Division. • Past or current Member of the Board of Directors: Christ Lutheran Church,
Opportunities Industrialization Center; St. Albans School; Washington Athletic Club; American Cancer Society (D.C.). • Inductee, Washington Bar Association Hall of Fame, 2010. • Adjunct Professor, George Washington University Law School. Professor, District of Columbia School of Law. • University of Virginia Law School, Master of Laws. Georgetown University Law School. Dartmouth College.
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PAULINE A. SCHNEIDER, ESQUIRE
Areas of Experience
Broad involvement in financial and corporate transactions including general obligation bonds, health care financing, higher education and student loan financing, investment bank representation, and financing for state and local governments, airports, utilities, housing, hospitals, convention centers, sports arenas, and nonprofit activities.
Credentials
• Partner - Orrick, Herrington & Sutcliffe LLP, Washington, DC. • Head of the Public Finance Group (DC) - Orrick, Herrington & Sutcliffe • Former Partner, Hunton & Williams, Washington, DC. • Office of Intergovernmental Affairs/Secretary to the Cabinet, White
House. • Former Director, Office of Intergovernmental Relations, District of
Columbia Government. • Listed in Best Lawyers in America, 2005-2009. • Listed in Who’s Who in the United States, 2005-2009. • Listed in Washington, DC SuperLawyers. • Recipient, Woman of Achievement Award, Anti-Defamation League. • Recipient, Woman of Genius Award, Trinity College. • Recipient, Margaret Brent Women of Achievement Award, ABA, 1999. • Recipient, President’s Award, National Association of Women Lawyers. • Recipient, Woman of the Year, Women’s Bar Association of the District
of Columbia. • Yale Law School, J.D.
Howard University, M.U.S. Glassboro State College, B.A. (now Rowan University)
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ROBERT P. WATKINS, ESQ.
Areas of Experience
Medical malpractice, personal injury, general commercial, and employment including class action race, gender, and age discrimination matters.
Credentials
• Associate, Partner and Of Counsel, Williams & Connolly, LLP, 1972-Current. • Presidential Appointee and Former Member, DC Control Board. • Fellow, American College of Trial Lawyers. • Former Member, Board of Governors, DC Bar. • Named one of DC’s Top Lawyers by Washingtonian magazine, 2004. • Former Assistant U.S. Attorney, District of Columbia. • Former Trial Attorney, Federal Maritime Commission. • Former Trial Attorney, Civil Rights Division, US Department of Justice. • Former Law Clerk, Hon. William B. Bryant, US District Court for DC. • Vice Chancellor, Episcopal Diocese of Washington. • Former Member, Standing Committee on the Federal Judiciary. • Cambridge University, Diploma in Criminology
Columbia University School of Law, J.D. Harvard College, A.B.
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BrownGreer PLC
BrownGreer PLC, a national leader in claims processing, will provide specially trained attorneys, technology professionals, and process experts who will act under the supervision and direction of The McCammon Group. BrownGreer has extensive and exemplary experience in claims review and the design and administration of complicated claims processes, beginning with the roles of the BrownGreer founders in the Dalkon Shield Claimants Trust in 1990 (300,000 claimants). Their work continued with the “Fen-Phen” diet drug nationwide class action settlement and opt-out litigation settlement programs (600,000 claimants), the $1 billion Sulzer Settlement Trust created in the Sulzer national class action settlement (27,000 claimants), and many other personal injury and financial resolution programs. BrownGreer also served as the Claims Administrator in the $4.85 billion national Vioxx Resolution Program (60,000 claimants), steering that program to conclusion far ahead of the schedule normally required in settlements of that magnitude. Most recently, BrownGreer was chosen by Ken Feinberg, the Administrator of the $20 billion fund created by BP to handle claims arising from the Deepwater Horizon oil spill in the Gulf of Mexico, to assist in the design and implementation of the process for review of those claims. More information is available at www.BrownGreer.com.
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EXHIBIT 9
to the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of a Rule 23(b)(1)(B) Class, And for Other Purposes
In re Black Farmers Discrimination Litigation Case No. 08-mc-0511-PLF (D.D.C.)
Qualifications of Michael Lewis (Proposed Track B
Neutral)

Case 1:08-mc-00511-PLF Document 161-10 Filed 03/30/11 Page 2 of 4
Biographical Statement for
Michael K. Lewis
For more than 30 years, Mr. Lewis has mediated, facilitated, and served as special master and discovery referee in a significant number of government-related cases involving contract, energy, environmental, land, natural resources, transportation, class actions, civil rights, and public policy issues.
A nationally recognized neutral, Mr. Lewis trains and lectures on the use of dispute resolution before Fortune 500 companies, leading law firms, private organizations, bar associations, and government agencies and groups he has worked with are: U.S. Department of Justice, Department of Energy, Department of Health and Human Services, General Accounting Office, Federal Trade Commission, U.S. Marshals Service, Federal Deposit Insurance Corp., Federal Communications Commission, Environmental Protection Agency, Federal Reserve Board, U.S. Air Force, U.S. Army and the Interagency ADR Working Group.
From his decades of experience, Mr. Lewis is familiar and knowledgeable about the issues private and governmental parties face in disputes involving local, state, or federal governments. He served on a panel that resolves complaints against Members of Congress and others under the Congressional Accountability Act of 1995; is on the U.S. Institute for Environmental Conflict Resolution Roster and on a roster maintained to provide neutrals for environmental and public policy disputes primarily involving the U.S. EPA; and spent 3 years overseas as a Foreign Service Officer in Thailand.
Representative Mediations
Pigford v. Glickman, a case in which a class of approximately 20,000 African-American farmers alleged that the U.S. Department of Agriculture had discriminated against them. Following the settlement, the parties asked Mr. Lewis to manage the Track B (arbitration) process for resolving individual farmers’ claims. He has done so for the past twelve years Sokaogon v. Babbitt, a mediation regarding the treatment of a petition to take land into trust for Indian tribes Mediation in which federal and state agencies questioned whether a utility had fulfilled its responsibilities under the Clean Air Act Mediation involving a dispute between the elected school board and the federally appointed D.C. Financial Control Authority Mediation of a dispute involving conditions in a large, publically supported apartment complex and damages to municipal buildings alleged to have been caused by faulty architectural design and construction Mediation of a series of whistle-blower cases involving federal employees or contractors

Case 1:08-mc-00511-PLF Document 161-10 Filed 03/30/11 Page 3 of 4
Mediation of the use of a fund for the benefit of prisoners in the Bedford Hills Correctional Institution in New York State Mediations for a variety of federal government agencies involving employment issues Mediations or co-mediations of numerous environmental cases involving Superfund sites including: the HOD landfill in Illinois; the Kramer Landfill and BROS sites in New Jersey; the McKin Site in Maine; and the Old Southington Landfill, Hamden Middle School, and Bryden and Morse Sites in Connecticut. Among the issues dealt with in those mediations were the allocation of responsibility for clean-up costs, recovery of past and future costs by governments and responsible parties, and remedy selection and site remediation
Special Master/Discovery Referee, Representative Matters
Special Master in, Inmates of the Rhode Island Training School v. Martinez, a case involving the care and treatment of juvenile delinquents Monitor and Special Master for the District of Columbia Superior Court in Jerry M. v. D.C., a case involving the care and treatment of juvenile delinquents Special Master for implementations of a consent decree involving the Washington State Penitentiary in Walla, Walla, Washington
Supplementary Matters
Among agencies for which Mr. Lewis has provided training are: U.S. Department of Justice, Department of Health and Human Services, Federal Deposit and Insurance Corporation, U.S. Army Material Command, U.S. Air Force, New York State Department of Corrections, New York City Department of Corrections, National Institute of Corrections, Government Accountability Office, U.S. Department of Interior, U.S. EPA, and Federal Trade Commission
Honors, Memberships, and Professional Activities
Outstanding Achievement for ADR Education/Training, American College of Civil Trial Mediators, 2001 Member: JAMS Board of Directors, 2004- 2010; JAMS Employment Practice Group, 2004-Present Board of Directors: Frederick B. Abramson Memorial Foundation, 1998-2008; Westtown Friends School, 1995-2005; Consensus Building Institute, 1993-Present; Search for Common Ground, 1997-present Member, American Bar Association Section on Dispute Resolution Featured on a television show produced by the American Law Institute and the American Bar Association and on numerous instructional videotapes Adjunct faculty member of law schools of Georgetown (1983-2007), American University, George Washington University, University of New Mexico; Harvard Program of Instruction for Lawyers Mediation Workshop (1984-present); trainer for CPR Institute for Dispute Resolution
Background and Education

Case 1:08-mc-00511-PLF Document 161-10 Filed 03/30/11 Page 4 of 4
JAMS, 2004-Present; ADR Associates, 1990-2003; Private mediation practice, 1983-1990 Center for Community Justice (now Center for Dispute Settlement), Deputy Director, 1972-1983 National Institute for Dispute Resolution, Deputy Director, 1983-1988 U.S. Information Agency, Foreign Service Information Officer, 1967-1972 J.D., Georgetown University Law Center, 1975 B.A., Dartmouth College, 1967; Studied at U.S. Department of State’s Foreign Service Institute

Case 1:08-mc-00511-PLF Document 161-11 Filed 03/30/11 Page 1 of 4
EXHIBIT 10
to the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of a Rule 23(b)(1)(B) Class, And for Other Purposes
In re Black Farmers Discrimination Litigation Case No. 08-mc-0511-PLF (D.D.C.)
Proposed Ombudsman Order of
Appointment

Case 1:08-mc-00511-PLF Document 161-11 Filed 03/30/11 Page 2 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

This document relates to:

)

)

ALL CASES

)

)

Misc. No. 08-mc-0511 (PLF)

ORDER APPOINTING OMBUDSMAN On March __, 2011, this Court issued an Order preliminarily approving a Settlement Agreement entered into by the Plaintiffs in certain of these consolidated cases and the Secretary of the United States Department of Agriculture (“USDA”) (collectively, the “Parties”) to fully and finally resolve, on a classwide basis, all claims under Public Law No. 110-234 and/or Public Law 110-246, §14012 (2008). As part of the Settlement Agreement, the Parties agreed that the Court may appoint an independent Ombudsman to monitor the good faith implementation of the Settlement Agreement. The Ombudsman’s fees, costs and expenses (“Ombudsman Costs”) will be paid, upon Court approval, from the Settlement funds appropriated by Congress, separately from Implementation Costs under the Agreement. See Settlement Agreement, Section VI.A. Under the Agreement, the Ombudsman is to (a) report directly to the Court, with periodic written reports (not less than every six months) to the Court, the Secretary of Agriculture, and Lead Class Counsel regarding the good faith implementation of the Agreement; (b) be available to Class Members and the public through a toll-free telephone number to address concerns
1

Case 1:08-mc-00511-PLF Document 161-11 Filed 03/30/11 Page 3 of 4

regarding the implementation of the Agreement; (c) attempt to address concerns or questions raised by Class Members with respect to the implementation of the Agreement; (d) have access to the records maintained by the Claims Administrator and the Neutrals involved in the claims process; and (e) make recommendations to the Court relating to the implementation of the Agreement. The Ombudsman does not have the power to alter, in any way, substantive claims decisions made by the Neutrals or the Claims Administrator, nor may he [she] direct the Secretary and/or the United States to take any actions pursuant to the Settlement Agreement. See Section VI.B.
The Ombudsman shall not be removed except for good cause, and shall serve for as long as this Court has continuing jurisdiction to enforce the Settlement Agreement.
Taking into consideration these duties and the requirements of the Settlement Agreement, the Court has determined that __________________ is the person best qualified to perform the role of Ombudsman in this case. This decision is based on [experience]. Accordingly, it is hereby
ORDERED, pursuant to Section VI of the Settlement Agreement and this Court’s exercise under Section XVII of the Settlement Agreement of its continuing jurisdiction over the Settlement, and the inherent equitable power of the Court,1 that __________________________ is appointed to serve as Ombudsman under the Settlement Agreement, effective _________________, with all the responsibilities and obligations required under the letter and spirit of the Settlement Agreement.

1

See Ruiz v. Estelle, 679 F.2d 1115, 1161 (5th Cir. 1982), amended in part, reh’g denied in part on

other ground, 688 F.2d 266 (5th Cir. 1982); see also Reed v. Cleveland Bd. of Educ., 607 F.2d 737, 746

(6th Cir. 1979); Schwimmer v. United States, 232 F.2d 855, 865 (8th Cir. 1956) (citing In re Paterson, 253

U.S. 300, 311 (1920).

2

Case 1:08-mc-00511-PLF Document 161-11 Filed 03/30/11 Page 4 of 4
The Court understands that ____________________ intends to commence operations on or about _______________, 2011. Once the Ombudsman has commenced operations, notice of the Ombudsman’s availability to address concerns raised with respect to the implementation of the Agreement, and the toll-free number through which the Ombudsman may be reached, shall be posted on the www.blackfarmercase.com website. Additionally, Class Counsel and the Claims Administrator should refer calls to the Ombudsman, as appropriate.
The Court understands that the Ombudsman may hire additional staff to assist in the performance of his [her] duties, and that the Ombudsman and staff will need to be reasonably compensated for their time and reasonable expenses. Pursuant to Section VI.A of the Settlement Agreement, all Ombudsman’s Costs shall be paid, upon Court approval, from the Settlement funds, separately from Implementation Costs, and the Court will remain available to assure that adequate compensation is provided with a minimum of delay and administrative difficulties. The Ombudsman will provide Lead Class Counsel, the Secretary of the USDA and the Court with quarterly written statements reporting his [her] fees and expenses.
SO ORDERED.

DATE: ___________________, 2011

PAUL L. FRIEDMAN United States District Judge

3

Case 1:08-mc-00511-PLF Document 161-12 Filed 03/30/11 Page 1 of 5
EXHIBIT 11
to the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of a Rule 23(b)(1)(B) Class, And for Other Purposes
In re Black Farmers Discrimination Litigation Case No. 08-mc-0511-PLF (D.D.C.)
Proposed Ombudsman Order of
Reference

Case 1:08-mc-00511-PLF Document 161-12 Filed 03/30/11 Page 2 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

This document relates to:

)

)

ALL CASES

)

)

Misc. No. 08-mc-0511 (PLF)

ORDER OF REFERENCE The Settlement Agreement preliminarily approved by this Court on _______________, 2011 provides for the appointment of an Ombudsman to carry out certain enumerated duties. Those duties are listed in Section VI.B of the Settlement Agreement, with respect to which the Ombudsman shall report directly to the Court. The Settlement Agreement, as negotiated by the Parties and [preliminarily] approved by this Court, limits and clearly defines the role of the Ombudsman, as set forth in Section VI.B. On ____________, 2011, this Court issued an Order appointing __________________ as the independent Ombudsman in this case to assist the Court in overseeing implementation of the Settlement Agreement. In accordance with the terms of the Settlement Agreement and this Court’s exercise of its continuing jurisdiction under Section XVII to oversee and enforce the Settlement Agreement, this Court’s Order of _______________, 2011 preliminarily approving the Settlement Agreement, the Court’s Order of __________, 2011 appointing _____________ as the Ombudsman, and pursuant to the Court’s inherent equitable power, it is hereby

1

Case 1:08-mc-00511-PLF Document 161-12 Filed 03/30/11 Page 3 of 5
ORDERED that the Ombudsman, as an agent and officer of the Court, shall have the responsibilities, powers, and protections set forth in the Settlement Agreement and in this Order of Reference; and it is
FURTHER ORDERED that the Ombudsman shall be available to Class Members and the public through a toll-free telephone number in order to address concerns about implementation of the Settlement Agreement; and it is
FURTHER ORDERED that the Ombudsman shall not have the power to alter in any way the substantive claims determinations made by the Neutrals or the Claims Administrator, nor shall the Ombudsman have the power to direct either of the Parties to take any action pursuant to the Settlement Agreement ; and it is
FURTHER ORDERED that, subject to the Section VI.C Limitations of the Settlement Agreement, the Ombudsman shall have the full cooperation of the Parties and their counsel, the Claims Administrator, and the Neutrals in carrying out his [her] duties under the Settlement Agreement. Further, the Claims Administrator and Neutrals shall promptly provide any and all information regarding the claims process, including access to records maintained by their offices, that may be requested by the Ombudsman for purposes of addressing concerns raised by Class Members and making recommendations to the Court regarding implementation of the Settlement Agreement; and it is
FURTHER ORDERED that the Ombudsman shall report directly to the Court and shall not be removed except for good cause, and shall serve for so long as this Court has continuing jurisdiction to enforce the Settlement Agreement; and it is
FURTHER ORDERED that:
2

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1. The Ombudsman shall establish and maintain a toll-free telephone number which shall be posted on the www.blackfarmercase.com website and otherwise made publicly available so that Class Members and potential Class Members may raise concerns or questions regarding implementation of the Settlement Agreement;
2. The Ombudsman shall attempt to address any concerns or questions raised by Class Members, and, subject to the Section VI.C Limitations of the Settlement Agreement, the Ombudsman shall have authority to make informal suggestions to the Parties in order to facilitate and aid implementation of the Settlement Agreement and shall make recommendations to the Court relating to the implementation of the Settlement Agreement;
3. Subject to the Section VI.C Limitations of the Settlement Agreement, the Ombudsman shall have the right to confer informally and on an ex parte basis with the Parties’ counsel with respect to matters affecting the discharge of the Ombudsman’s duties and the implementation of the Settlement Agreement;
4. The Ombudsman shall make periodic written reports (not less than every six months) to the Court, the Secretary of Agriculture, and Lead Class Counsel regarding the implementation of the Settlement Agreement;
5. As an agent of the Court, the Ombudsman shall enjoy the same protections from being compelled to give testimony and from liability for damages as those enjoyed by other federal judicial agents performing similar functions;
6. Subject to Court approval, the Ombudsman shall have the authority to employ additional staff;
3

Case 1:08-mc-00511-PLF Document 161-12 Filed 03/30/11 Page 5 of 5 7. The Ombudsman’s reasonable fees, costs and expenses shall be paid by the Secretary
upon Court approval from funds appropriated for the Settlement. Within 20 days of the entry of such an order approving the Ombudsman’s fees, costs, and expenses, the Secretary of the USDA shall provide the U.S. Department of the Treasury with all necessary forms to direct a payment to the Designated Account established under the Settlement Agreement for such approved fees, costs, and expenses. 8. The Ombudsman shall provide Lead Class Counsel, the Secretary of USDA and the Court with quarterly written statements reporting his [her] fees and expenses. SO ORDERED.
PAUL L. FRIEDMAN United States District Judge DATE: ________________________, 2011
4

Case 1:08-mc-00511-PLF Document 161-13 Filed 03/30/11 Page 1 of 3
EXHIBIT 12
to the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of a Rule 23(b)(1)(B) Class, And for Other Purposes
In re Black Farmers Discrimination Litigation Case No. 08-mc-0511-PLF (D.D.C.)
Declaration of Andrew H. Marks

Case 1:08-mc-00511-PLF Document 161-13 Filed 03/30/11 Page 2 of 3

Case 1:08-mc-00511-PLF Document 161-13 Filed 03/30/11 Page 3 of 3

Case 1:08-mc-00511-PLF Document 161-14 Filed 03/30/11 Page 1 of 30
EXHIBIT 13
to the Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Approval of Settlement,
Certification of a Rule 23(b)(1)(B) Class, And for Other Purposes
In re Black Farmers Discrimination Litigation Case No. 08-mc-0511-PLF (D.D.C.)
Qualifications of Proposed Class Counsel

Case 1:08-mc-00511-PLF Document 161-14 Filed 03/30/11 Page 2 of 30
Class Counsel Qualifications In re Black Farmers Discrimination Litig.
Case No. 08-mc-0511 (D.D.C.)
TABLE OF CONTENTS Chestnut, Sanders, Sanders, Pettaway & Campbell, LLC Henry Sanders..........................................................................................................1 Faya Rose Toure ......................................................................................................2-3
Crowell & Moring LLP Andrew H. Marks.....................................................................................................3 Laurel Pyke Malson .................................................................................................3-4 Michael W. Lieberman ............................................................................................4-5
Morgan & Morgan, P.A. Gregorio Francis ......................................................................................................5-6 Alphonso Michael Espy...........................................................................................6 Scott Wm. Weinstein ...............................................................................................7 J. Andrew Meyer......................................................................................................7-8
Law Offices of James Scott Farrin James Scott Farrin....................................................................................................8 Eric P. Haase............................................................................................................8-9
Pogust, Braslow & Millrood, LLC Harris Pogust............................................................................................................9 Tobias (Tobi) L. Millrood......................................................................................10
Conlon, Frantz & Phelan, LLP David J. Frantz .......................................................................................................10-11 Brian P. Phelan.......................................................................................................11
Stinson Morrison Hecker LLP Phillip Fraas ...........................................................................................................11-12
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Case 1:08-mc-00511-PLF Document 161-14 Filed 03/30/11 Page 3 of 30
The Law Offices of Marc Boutwell, PLLC Marc Boutwell .......................................................................................................12-13 Charles Edwards ....................................................................................................12
Law Offices of Calton & Calton Jimmy S. Calton, Jr................................................................................................13-14 Jimmy S. Calton, Sr. ..............................................................................................14
Walter B. Calton, Esq. Walter B. Calton, Esq. ...........................................................................................14
Cross & Kearney, PLLC Othello C. Cross.....................................................................................................14-15 Jesse L. Kearney ....................................................................................................15-16
Gleason & McHenry Don O. Gleason......................................................................................................16 Michael McHenry ..................................................................................................16
Gowan Law Office, PLLC Stephen L. Gowan..................................................................................................16
Heninger Garrison Davis, LLC William Lewis Garrison, Jr. ..................................................................................17-18 William L. Bross....................................................................................................18 Gayle L. Douglas ...................................................................................................18-19
McEachin & Gee LLP Donald McEachin ..................................................................................................19
Patton Boggs, LLP Anurag Varma........................................................................................................19-20 Benjamin G. Chew.................................................................................................20-21 Jude Kearney..........................................................................................................21 Ramona L. Quillet..................................................................................................21-22
ii

Case 1:08-mc-00511-PLF Document 161-14 Filed 03/30/11 Page 4 of 30 Relman & Dane, PLLC
John P. Relman ......................................................................................................22 Reed Colfax ...........................................................................................................23 Jennifer Klar...........................................................................................................23-24
Rutland & Jankiewicz, LLC Michael A. Rutland................................................................................................24 Kindaka Sanders, Esq. ...........................................................................................24-25
Strom Law Firm, LLC Joseph P. Strom, Jr. ...............................................................................................25 Mario A. Pacella ....................................................................................................26 Bakari Sellers .........................................................................................................26
iii

Case 1:08-mc-00511-PLF Document 161-14 Filed 03/30/11 Page 5 of 30
Class Counsel Qualifications In re Black Farmers Discrimination Litig.
Case No. 08-mc-0511 (D.D.C.)
Chestnut, Sanders, Sanders, Pettaway & Campbell, LLC
Henry Sanders
Henry Sanders is the Managing Partner of Chestnut, Sanders, Sanders, Pettaway & Campbell, LLC, at one time the largest Black law firm in Alabama and one of the largest black law firms in the country. His law practice has been one of service by helping poor and Black people save their lands, protecting the Constitutional rights of all citizens, incorporating new towns, and building strong, sensitive governmental institutions. He was deeply involved in the original Pigford class action case and other class action cases.
As a community leader, Mr. Sanders has helped found or build many organizations such as the Alabama New South Coalition, a powerful statewide political organization for which he currently serves as President Emeritus, and the 21st Century Youth Leadership Movement, which has chapters across America and in Africa. Mr. Sanders is also a member of the Campaign for a New South, the National Conference of Black Lawyers, the Alabama Lawyers Association, the National Bar Association, the American Bar Association, the Black Belt Human Resources Center, the National Voting Rights Museum and Institute, C.A.R.E. (Coalition of Alabamians Reforming Education), and the Selma Collaborative.
In 1983, Mr. Sanders was elected to the Alabama State Senate and has championed issues pertaining to education, children, health, women’s issues, and removing sales taxes from food purchases. Mr. Sanders was the first African American State Senator from the Alabama Black Belt. He is currently serving his eighth term in the Alabama State Senate, where he serves on the following committees: Banking and Insurance, Education, Energy and Natural Resources, Finance and Taxation, and Local Legislation. In addition to numerous other awards, he was selected as Outstanding Legislator by the Alabama Legislative Black Caucus, voted a finalist in the Legislator of the Year Award by his fellow senators, and honored with a 1999 Nation Builder Award from the National Caucus of Black State Legislators.
Mr. Sanders is a graduate of Talladega College (B.A.) and Harvard University School of Law (J.D.). He attended Harvard Law School on a Felix Frankfurter Scholarship “for poor young men who show great promise,” and served as President of Harvard Black Law Students Association. He is a member of the Alabama State Bar, as well as the Northern, Southern, and Middle Districts of Alabama, and U.S. Court of Appeals, Eleventh Circuit. He is also licensed to practice in the United States Supreme Court.

Case 1:08-mc-00511-PLF Document 161-14 Filed 03/30/11 Page 6 of 30
Faya Rose Toure
Faya Rose Toure (a.k.a. Rose M. Sanders) is a Harvard-educated Civil Rights activist and litigation attorney who has worked on some of the highest-profile civil rights cases to come before the courts, including the original Pigford class action case.
Mrs. Sanders received her undergraduate degree from Johnson C. Smith University (summa cum laude) and her law degree from Harvard. While at Harvard, she was awarded the Herbert Smith Fellowship. That led to an assignment the following year at the National Welfare Rights Organization and the Columbia Center on Social Welfare Policy and Law. In 1971, she worked briefly for the Legal Services Corporation. In addition, Mrs. Sanders is founder of the National Voting Rights Museum in Selma, Alabama, and a founding partner in the law firm of Chestnut, Sanders, Sanders, Pettaway & Campbell, LLC.
In 1973, Mrs. Sanders became the first African-American female judge in Alabama, serving as municipal judge until 1977. In 1982, Mrs. Sanders was hired by the Emergency Land Fund for the Department of the Agriculture to conduct a study of black land tenure and document land loss by African Americans.
Mrs. Sanders has also founded or co-founded a number of organizations aimed at community betterment, including the following:
 The Black Belt Arts and Cultural Center, an arts-based community organizing group;
 The National Voting Rights Museum in 1993 to tell the story of the Voting Rights Movement;
 The Bridge Crossing Jubilee, to commemorate the Selma-to-Montgomery Civil Rights march across the Edmund Pettus Bridge;
 Mothers of Many (MOMS), a group Mrs. Sanders founded for low-income women, which has opened three businesses under Mrs. Sanders’ direction;
 The Africans in America Renaissance Project, which provides land for purchase and development by African Americans in South Africa;
 MAAT Leadership High, an all-male school;  The Coalition of Alabamians Reforming Education (C.A.R.E.), which in
the 1990s spearheaded a movement against the practice of "tracking" in Selma public schools;  The Replacing Inequities in School with Excellence Network (R.I.S.E.), whose mission is to fight the practice of tracking and work for better education nationwide; and  The 21st Century Youth Leadership Movement, a group that educates young people about the political process and encourages their involvement through chapters around the United States and in Mali and Senegal, West Africa.
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Overall, Ms. Sanders has been involved in learning and cultural centers, political and legal organizations, and community initiatives that have benefited Alabamians for three decades.
Crowell & Moring LLP
Andrew H. Marks
Andrew H. Marks is a partner at Crowell & Moring, in both the firm's Litigation Group and Insurance/Reinsurance Group. Following graduation from Michigan Law School, Mr. Marks clerked on the U.S. District Court for the District of Columbia for the Honorable Charles R. Richey. Between 1979 and 1981, he served as Executive Assistant to Ambassador Sol M. Linowitz, the President's Personal Representative to the Middle East Peace Negotiations.
Mr. Marks has a broad-based complex litigation, class action, and arbitration practice. Among the wide range of matters he has handled in recent years are civil rights, defamation, contract disputes, business fraud, fiduciary duty, and insurance coverage cases. Mr. Marks regularly handles matters at both the trial and appellate levels in federal as well as state courts throughout the country. In addition, he has extensive experience, both as a neutral and as counsel, in arbitration and mediation proceedings. In addition, Mr. Marks was selected by his peers to be included in The Best Lawyers in America 2011 as a "Best Lawyer" in the practice areas of commercial litigation, First Amendment law, and alternative dispute resolution.
Mr. Marks is a past president of the District of Columbia Bar, the nation's second largest state bar association. He is currently a member of the District of Columbia Access to Justice Commission and is on the board of the D.C. Circuit Historical Society and the D.C. School of Law Foundation. He is a member of the District of Columbia, Maryland, and Florida bars.
In 2005, Mr. Marks received the Judge Learned Hand Award from the American Jewish Committee in recognition of his "dedication to the highest principles of the legal profession and his outstanding contributions to the enrichment of our community." He was also awarded the 2005 Servant of Justice Award by the Legal Aid Society of the District of Columbia.
Mr. Marks is a 1973 cum laude graduate of Harvard College and a 1976 magna cum laude graduate of the University of Michigan Law School.
Laurel Pyke Malson
Laurel Pyke Malson is a partner in Crowell & Moring's Litigation Group, specializing in international and governmental litigation, mediation and arbitration, and complex commercial, class action, and administrative litigation. She has litigated numerous class-actions, including cases involving consumer fraud claims, the Individuals
3

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with Disabilities in Education Act, cases alleging scientific misconduct, and other business and individual torts, including civil rights and constitutional violations. Ms. Malson also routinely counsels foreign and domestic clients regarding litigation risk management in the U.S. federal and state courts, and has litigated extensively under the Foreign Sovereign Immunities Act, Alien Tort Statute, Federal Tort Claims Act, and other "public law" provisions where foreign and U.S. government and related entities are involved. She also has counseled and litigated on behalf of a variety of public and private commercial entities, including public school systems and universities, academic medical centers and other health care providers and professional and trade associations.
Ms. Malson’s recent representations include defending the District of Columbia Public Schools in a major class action under the Individuals with Disabilities in Education Act, and defending the American Psychiatric Association in the Ritalin and ECT class action litigations in multiple state and federal jurisdictions. She also is a key member of the team that secured a $6 billion judgment on behalf of the estates and family members of seven U.S. nationals that perished, and the U.S. owner of the aircraft that was destroyed, in the 1989 bombing of UTA Flight 772 over the Sahara Desert. (Pugh v. Libya, Case No. 02-2026 (D.D.C.)).
Ms. Malson is a Mediator for the U.S. District Court for the District of Columbia, and she chaired the Committee on Grievances for the U.S. District Court for the District of Columbia from 2001 to 2004. She currently serves on the National Panel of Distinguished Neutrals for the International Institute for Conflict Prevention and Resolution ("CPR"), as well as CPR's HealthCare and Life Sciences Panel.
Before entering private practice in 1985, Ms. Malson served in the Office of Legal Counsel of the U.S. Department of Justice for four years, where she was responsible for a broad range of constitutional and federal statutory matters. She served as a member of the D.C. Circuit Advisory Committee on Procedures from 1986 to 1991. Ms. Malson clerked for the Honorable Damon J. Keith on the United States Court of Appeals for the Sixth Circuit (1979-1980) and the Honorable Harry T. Edwards on the United States Court of Appeals for the DC Circuit (1980-1981).
Ms. Malson is a 1976 graduate from Wesleyan University (B.A.) and a 1979 graduate from Harvard Law School (J.D.).
Michael W. Lieberman
Michael W. Lieberman is an associate in Crowell & Moring's Litigation and White Collar & Regulatory Enforcement Groups. He represents clients on a broad range of civil and criminal matters, including civil rights, contracts, torts, antitrust, and other complex commercial and class action litigation.
Prior to joining Crowell & Moring, from 2001-2007, he worked as Military Legislative Assistant to Congressman John M. Spratt, Jr., a senior member of the House
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Armed Services Committee, and worked as a law clerk in the Federal Major Crimes Division of United States Attorney's Office for the District of Columbia.
Mr. Lieberman graduated from Duke University in 2001 (B.A.), and graduated magna cum laude from Georgetown University in 2008 (J.D.). He is a member of the Virginia Bar, the D.C. Bar, and is a member of the Virginia Trial Lawyers Association.
Morgan & Morgan, P.A.
Gregorio Francis
Mr. Francis practices in the Orlando, Florida and Jackson, Mississippi offices of Morgan & Morgan. He is an equity shareholder and serves on the firm’s executive management committee. Mr. Francis began his legal career with a defense firm specializing in medical malpractice, nursing home, and municipal defense. He joined Morgan & Morgan in 2001, focusing his practice on medical negligence, police misconduct, wrongful death, and catastrophic personal injuries. Because of Mr. Francis’ extensive trial experience, famed trial attorney Johnnie Cochran tapped him to open and serve as the co-managing partner of the “Cochran Firm” in Miami from 2004 to 2006. Mr. Francis currently serves as the managing partner for Morgan & Morgan’s Mississippi office.
Mr. Francis earned a Bachelor of Arts in Criminology from the University of Florida in 1991. He then earned a Juris Doctorate from the University of Florida School of Law as a Virgil Hawkins Fellow. He also received writing and oral honors in Appellate Advocacy and was on the Dean’s List. While pursuing his Juris Doctorate, Mr. Francis was inducted into the prestigious Florida Blue Key Leadership Honorary. Also while in Law school, he was appointed and served as a Justice on the University of Florida Board of Masters (the highest Appellate Court for student disciplinary matters) rising to the level of senior presiding justice in 1994. Additionally, he was a member of the Fredrick Douglas Moot Court Team and Publishing Editor for the Umoja Law Journal.
Mr. Francis is very active at the state and local level of the National Bar Association. He served as president of the Paul C. Perkins Bar Association from 2001 through 2003 and on the Executive Board of the Florida Chapter of the NBA. He is currently a member of the Judicial Nominating Commission for the Ninth Circuit Court of Florida, a committee responsible for interviewing and making recommendations to Florida’s Governor regarding judicial appointments in the Ninth Circuit. Mr. Francis is also a member of the Florida Supreme Court’s Committee on Standard Jury Instructions.
In the community, Mr. Francis volunteers his time to a number of local non-profit associations in Central Florida. Namely, he is a board member of the Nehemiah Educational and Economic Development Board, 100 Blackmen of America-Orlando Chapter, Chairman of the Lake Apopka Investigatory Commission, St Mark AME Church Board of Trustees, and the Nap Ford Charter School Board of Directors. Mr.
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Francis serves as General Counsel for the Connectional Lay Ministry of the African Methodist Episcopal Church, where he provides legal advice and counsel to their three million non-ministerial members. Most recently, Mr. Francis was honored to be named an Honorary Tuskegee Airman as a result of his commitment to community and professional accomplishments.
Alphonso Michael Espy
Alphonso Michael Espy was the 25th Secretary of the United States Department of Agriculture, having served in the Administration of President Bill Clinton. He has also served as a Member of the United States House of Representatives from the State of Mississippi, having the distinction of being the first African-American elected to that body from the State of Mississippi since the Reconstruction-era. During his entire six year term in the U.S. Congress, Mike Espy served on the House Budget and Agriculture Committees, assigned to subcommittees that provided oversight to the U.S. Department of Agriculture and other agencies that create federal policy for national agricultural commodities and farm crops. He also served as Chairman of the House Select Committee on Hunger’s Subcommittee on Domestic Hunger, and was national ViceChairman of the Democratic Leadership Council (DLC). As a member of the Congressional Black Caucus (CBC) Mr. Espy convened numerous hearings focusing on the treatment of African American farmers and on development and wealth creation within impoverished rural communities.
Mr. Espy has also served as Assistant Attorney General for the State of Mississippi, Director of the Attorney General’s Office of Consumer Protection, and as a former Mississippi Assistant Secretary of State in charge of the Office of Public Lands. He has worked in the litigation divisions of defense firms, and as a regional Manager of Central Mississippi Legal Services. He is a board member of the Farm Foundation, a national agricultural “think tank,” and a member of the Chicago Council on Global Affairs’ panel on the Future of U.S. Agriculture and Food Policy.
Currently, Mike Espy works as an attorney shareholder in Morgan & Morgan PA, and as a principal of Mike Espy PLLC, and AE Agritrade, Inc., an agricultural consulting firm specializing in rural development, food and nutrition, and international agricultural development issues. He has served as principal advisor to foreign governments on matters of agricultural development, finance, and multilateral food aid. His law practice concentrates on general plaintiff’s law, mass tort, bond and governmental finance, and international relations. He was appointed as a member of the Plaintiff’s Steering Committee in In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL 2179.
Mr. Espy received his undergraduate degree from Howard University in 1975 and his law degree from Santa Clara University in 1978.
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Scott Wm. Weinstein
Scott Wm. Weinstein practices in Morgan & Morgan's Fort Myers, Florida office. Mr. Weinstein serves as the Managing Partner of the firm’s National Consumer Class Action and Mass Tort Department, handling mass tort litigation, consumer class action litigation and complex commercial litigation nationwide. Mr. Weinstein has broad experience and is nationally known in the areas of consumer protection, pharmaceutical and medical device litigation, and cases involving food-borne illnesses. He has served in leadership positions in many consumer class actions in State and Federal Courts around the country as well as in Multi-District Litigation where he was appointed Co-Lead and Liaison Counsel in the case In re: Denture Cream Products Liability Litigation, MDL No. 2051 (Southern District of Florida) and to Plaintiffs’ Steering Committees in several cases, including In re: Heparin Products Liability Litigation, MDL No. 1953 (Northern District of Ohio); In re: Digitek Products Liability Litigation, MDL No 1968 (Southern District of West Virginia); In re: Total Body Formula Products Liability Litigation, MDL No. 1985 (Northern District of Alabama); In re: Bayer Corp. Combination Aspirin Products Marketing and Sales Practices Litigation, MDL No. 2023 (Eastern District of New York); and In re: Chinese-Manufactured Drywall Products Liability Litigation, MDL No. 2047 (Eastern District of Louisiana).
Mr. Weinstein currently serves as a member of the Florida Bar Board of Governors. He is Past President of the Lee County (Florida) Bar Association, Past Chair of The Florida Bar Grievance Committee “A” Twentieth Judicial Circuit, a member of the Twentieth Judicial Circuit Peer Review Committee, and Past President of the Naples/Fort Myers Chapter of the American Board of Trial Advocates (“ABOTA”). He is “AV” rated by Martindale-Hubbell and in 2009 and 2010 was selected as a member of the “Florida Legal Elite.”
Mr. Weinstein was educated at the University of Florida, earning a B.S. degree in 1982 and a Juris Doctorate degree in 1985. While at the University of Florida, Mr. Weinstein was inducted into Florida Blue Key.
J. Andrew Meyer
J. Andrew Meyer is located in Morgan & Morgan's office in Tampa, Florida. Mr. Meyer focuses his practice on consumer class action litigation. Prior to his joining Morgan & Morgan in 2009, Mr. Meyer was a partner at James, Hoyer, Newcomer & Smiljanich, a firm specializing in nationwide consumer class action cases. Prior to his association with the James Hoyer firm, Mr. Meyer was a partner with the law firm of Carlton Fields. Mr. Meyer also served as a law clerk to the Honorable Chris W. Altenbernd of the Florida Second District Court of Appeal.
Mr. Meyer served as Editor of the Corporate Counsel Newsletter, American Bar Association Section of Litigation, Corporate Counsel Committee from 2002 to 2004. He is Past Chair of the Florida Bar Unlicensed Practice of Law Committee “A” Sixth Judicial Circuit. Mr. Meyer has published several legal articles including co-authoring
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Petitions for Extraordinary Relief, Chapter 17, A Defense Lawyer’s Guide to Appellate Practice (DRI) (2004); Extraordinary Writs, Florida Civil Practice Before Trial, Chapter 25, published by the Florida Bar (7th Ed. 2004); and When It’s Your Last Chance: Tips on Obtaining Discretionary Review, Vol. 27 No. 4, Litigation, 11 (Summer 2001).
Mr. Meyer has prosecuted a number of putative nationwide class action cases on behalf of minorities, including cases alleging racial discrimination in the pricing of insurance and in the provision of mortgage loans in violation of the Fair Housing Act, as well as cases alleging discrimination in the employment context in violation of Title VII. Mr. Meyer been appointed by the court as counsel for plaintiffs in several nationwide consumer class action cases, including DeHoyos v. Allstate Insurance Company, Civil Action No. 5:01-1010 (Western District of Texas), Healey v. Allianz Life Insurance Company, Civil Action No. 2:05-8908 (Central District of California), and Hill v. Countrywide, Case No. A-0178441 (Texas 58th District Court, Jefferson County). Most recently, he has been appointed to the Plaintiffs’ Steering Committee in the case of In Re: Apple iPhone 3G and 3GS “MMS” Marketing and Sales Practices Litigation, MDL No. 2116 (Eastern District of Louisiana).
Mr. Meyer was educated at the University of Florida, graduating in 1991 with a degree in Economics awarded with High Honors, and with a Juris Doctorate degree in 1995. While at the University of Florida, Mr. Meyer was inducted into Florida Blue Key and Phi Beta Kappa.
Law Offices of James Scott Farrin
James Scott Farrin
Mr. Farrin founded the Law Offices of James Scott Farrin, and serves as its President and CEO.
Mr. Farrin is a member of the American Association for Justice’s Leaders Forum, the President’s Club of the North Carolina Advocates for Justice, and The North Carolina Bar Association. Mr. Farrin also contributes to and serves on the Lawyer’s Image and Marketing Committee for the North Carolina Advocates for Justice, and is a member of the Million Dollar Advocates Forum.
Mr. Farrin received his J.D., with honors, from Duke University School of Law. He received his B.A., Phi Beta Kappa, in Philosophy from Trinity College in Hartford, Connecticut.
Eric P. Haase
Eric P. Haase is a shareholder at the Law Offices of James Scott Farrin. His practice areas include a variety of serious injury claims.
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Mr. Haase is admitted to practice before the Supreme Court of the United States. In addition, Mr. Haase is a member of the American Association for Justice, the North Carolina Advocates for Justice, the North Carolina Bar Association, the 14th Judicial District Bar Association, the Durham Bar Association and the State Bar of Georgia. He is the incoming Secretary for the North Carolina Advocates for Justice Products Liability Section.
Mr. Haase received his J.D. from the University at Buffalo Law School (State University of New York). He received his B.S. in Business Administration from the University of North Carolina at Chapel Hill.
Pogust, Braslow & Millrood, LLC
Harris Pogust
Harris L. Pogust is a founding partner of Pogust Braslow & Millrood LLC.
For twenty years, Mr. Pogust has been litigating, bringing to trial, and settling claims on behalf of his injured clients, and has over a decade of experience in working as lead counsel in class action suits, state court mass tort programs, and federal, multidistrict litigation programs. Currently, Mr. Pogust is serving as lead counsel in In re Celexa and Lexapro Products Liability Litigation, E.D. Mo., MDL No. 1736, and liaison counsel in In re Paxil, Philadelphia Court of Common Pleas, No. 1503.
Mr. Pogust is admitted to practice law in the Supreme Court of Pennsylvania (1988), the Supreme Court of New Jersey (1989), the United States District Court, Eastern District of Pennsylvania (1989), the United States District Court, District of New Jersey (1994), the United States District Court, Eastern District of New York (2005), the United States District Court, Eastern and Western Districts of Arkansas (2006), the United States District Court, District of Columbia (2007), the United States Court of Appeals, Third Circuit (2002), and the United States Court of Appeals, Fourth Circuit (1995).
Mr. Pogust is a member of the Pennsylvania Association of Justice and the American Association for Justice. He was selected by the New Jersey Law Journal as one of the "Top 40 lawyers Under the Age of 40." He has also been quoted in the Wall Street Journal and other national publications, and has testified before the United States Senate regarding Y2K and technology related legal issues. He is Chairman of American Association for Justice's Neurontin Litigation Group and SSRI Litigation Group and has served as a guest lecturer at numerous legal conferences across the country. He has also served as lead counsel in the several class actions, including Courtney v. Medical Manager (software defect), Harman v. Rohm & Haas (environmental injury from landfill waste), and Kiser v. PalmOne, Inc. (defective cell phones).
Mr. Pogust graduated from Rutgers University in 1985 (B.A.) and from Widener University School of Law in 1988 (J.D.).
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Tobias (Tobi) L. Millrood
Tobi Millrood is a partner of Pogust, Braslow & Millrood. Prior to joining Pogust, Braslow & Millrood, Tobi managed the mass tort department at Schiffrin Barroway Topaz & Kessler, LLP.
Mr. Millrood has been actively involved in mass tort litigation involving Prempro (Hormone Therapy), Guidant Cardiac Devices, Medtronic Cardiac Devices, Vioxx, FenPhen, Gadolinium, Baycol, Meridia, Thimerosal, Ephedra and Zyprexa. Mr. Millrood has dedicated his career to holding corporate wrongdoers accountable to victims of negligence and reckless conduct, especially in the pharmaceutical and medical device litigation arena. Mr. Millrood speaks frequently at various seminars, on the topics of Mass Tort Litigation, Hormone Therapy, Cardiac Device Litigation, Meridia, the Ethics of Settling Mass Tort Cases and Electronic Discovery. To date, Mr. Millrood has helped his clients to receive millions of dollars in settlement of their product liability claims.
Earlier in his career, Mr. Millrood practiced at Anapol Schwartz. While at Anapol Schwartz, Mr. Millrood garnered several notable achievements, including serving as co-counsel in a $22 million medical malpractice verdict in Wallace v. Fraider (Phila. CCP Mar. 2001), one of the highest in state history.
Mr. Millrood was appointed Plaintiffs’ Liaison Counsel in In Re Hormone Therapy Litigation, Philadelphia Court of Common Pleas. He also served on the Plaintiffs’ Steering Committees in In re Prempro Products Liability Litigation, MDL 1507 and In re Guidant Corporation Implantable Defibrillators Products Liability Litigation, MDL 1708. In addition, he served on the Executive Committee for the Omnibus Autism Proceeding, United States Court of Federal Claims.
Mr. Millrood is Chairman of American Association for Justice for both the Hormone Therapy Litigation Group and the Meridia Litigation Group. He was also recognized as a 2010 Pennsylvania Super Lawyer.
Mr. Milrood received his Bachelor of Arts from Tulane University in 1992 and his law degree from University of Tulsa College of Law in 1995.
Conlon, Frantz & Phelan, LLP
David J. Frantz
David Frantz is one of the founding partners of Conlon, Frantz and Phelan, LLP, which originated with a predecessor firm in 1985. His practice focuses on complex civil litigation and representation of farmers and ranchers. He is class counsel in Pigford v. Vilsack, C.A. No. 97-1978 PLF (D.D.C), a discrimination case against USDA that resulted in payment of compensation and debt relief of over $1 billion to African American farmer claimants. He is also co-counsel for the Plaintiffs in Keepseagle v. Vilsack, C.A. No. 1:00-cv-03119-EGS (D.D.C), a class case brought on behalf of Native
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American farmers and ranchers for discrimination by USDA in the administration of farm loan programs.
Mr. Frantz also has an active administrative law practice before USDA, representing farmers and ranchers in their disputes with the Department involving farm loan programs and non-credit benefit programs. He is a frequent speaker and panelist in programs sponsored by non-profit organizations that provide assistance to socially disadvantaged farmers and ranchers throughout the rural South.
Mr. Frantz is a graduate of Georgetown University (B.S.,B.A. 1970) and Georgetown University Law Center (J.D. 1974). He is admitted to practice in Virginia and the District of Columbia.
Brian P. Phelan
Brian Phelan received his undergraduate and J.D. degrees from Georgetown University. He specializes in real estate financing for lenders and borrowers and practices in the land title area, conducting commercial and residential settlements, and acts as an agent for the writing of title insurance. Mr. Phelan also engages in estate planning and probate of decedents’ estates. In addition, he has experience in civil litigation in state and federal courts, with an emphasis on commercial and contract litigation.
Stinson Morrison Hecker LLP
Phillip Fraas
Phillip Fraas focuses his practice on agriculture law and lobbying on behalf of farmers, ranchers, food and agriculture businesses, and agriculture associations. For nearly 20 years, he has represented companies, individuals and trade associations on matters involving the USDA. For 13 years, Mr. Fraas served as counsel to the Senate and House of Representatives Agriculture Committees, including four years as Chief Counsel to the House Committee. During that time, he was responsible for supervising the drafting of legislation, policy development, and analysis for the Committee’s Chairman, as well as working extensively in the drafting of legislation that governs USDA programs.
In addition to representing clients in court and before administrative law tribunals, Mr. Fraas’ scope of practice includes analysis of regulations, drafting of legislation, and lobbying before Congress and executive branch agencies.
Mr. Fraas’ representative experience includes the following: USDA administrative law cases, including successfully preventing sugar beet processors from losing sugar marketing allotments worth $400 million; federal litigation, including serving as co-lead counsel for black farmers suing USDA in the Pigford class action, through which the USDA agreed to pay the farmers the largest civil rights damages
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award ever made by the federal government; and legislation and regulations, including drafting legislative proposals and analyzing USDA regulations for a wide range of agricultural clients. In addition, Mr. Fraas organized and has managed The DEIP Coalition, an export trade business group that included all the major dairy exporting and milk powder manufacturing companies in the United States.
Mr. Fraas graduated from Rockhurst College in 1965 and from University of Missouri-Kansas City School of Law in 1969. Mr. Fraas is a Member of the Missouri Bar, the District of Columbia Bar Association, and the American Agricultural Law Association.
The Law Offices of Marc Boutwell, PLLC
Marc Boutwell
Marc began practicing law in April of 1992. Prior to that, he attended the University of Mississippi, in Oxford, Mississippi, where he received a Juris Doctor in December 1991, and the University of Southern Mississippi in Hattiesburg, Mississippi, where he received a Bachelor of Science in Business Administration in December 1988. Mr. Boutwell started his law practice working with the Barrett Law Firm in Lexington, Mississippi in January of 1992. He has tried numerous civil and criminal, jury and bench trials over the last 19 years, as well as numerous non-jury trials.
Mr. Boutwell’s law practice, almost immediately, involved complex mass tort and class claims action litigation. From 1993 to 1995, he was part of a team that prosecuted mass tort and class action civil rights and discrimination lawsuits on behalf of African Americans against Woodmen of the World Life Insurance Company (Lorene Nealy v. Woodmen of the World Life Insurance Company, U.S. District Ct S.D. of Miss. 3:93CV536 (b)(n)). That case was settled on a state and national level.
In 1996, Mr. Boutwell was part of a team that received a $217 million verdict against Rockwell International for pollution of the Mud River in Kentucky (Houchens v. Rockwell International, Logan Co Circuit Ct, No 93-cl-158). As part of this team, Mr. Boutwell traveled to Kentucky for months before trial taking depositions and coordinating testimony for the numerous plaintiffs in this case. This verdict was awarded after the six week long trial.
Mr. Boutwell has also litigated other class actions, including one on behalf of African American Game and Fish Officers against the State of Mississippi for civil rights violations and discrimination claims (Felton, Carter, Lee and Brown v. MS Dept of Wildlife, U.S. Dist Ct SD of Miss 5:99CV200(L)(N)).
In March of 1997, Mr. Boutwell started his own firm in Lexington, Mississippi. The firm has had as many as five attorneys and a number of support staff over the last 14 years. This firm has been lead counsel on numerous cases, including several mass tort cases and class action cases. Currently this law office is focused on consumer claims
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against credit card companies and mortgage companies, both in mass tort and class actions.
Mr. Boutwell is currently a member of the Mississippi Bar Association, on the Mississippi Board of Bar Commissions (term begins July 2011) and on the Board of the Mississippi Prosecutors Association. He is authorized to practice law in all state and federal courts in Mississippi, as well as the Fifth Circuit Court of Appeals. He has been authorized by various federal and state courts to practice Pro Hac Vice, including the Commonweath of Kentucky, the U.S. District Court of Tennessee, and the U.S. District Court of Massachusetts, to name a few.
Charles Edwards
Charles Edwards focuses his practice on general civil trial practice, emphasizing personal injury, consumer finance fraud, credit card fraud, mortgage fraud and other consumer legal issues. He represents clients in all levels of state and federal court and before federal, state and local administrative agencies, including class action litigation.
Prior to joining The Law Offices of Marc Boutwell, PLLC, Mr. Edwards served as a Law Clerk to Judge Gray Evans, Circuit Judge for District Four in Mississippi. He also served as Law Clerk to Judge Jon Barnwell, Chancery Judge for District Seven in Mississippi.
Mr. Edwards is a member of the Mississippi State Bar, the U.S. District Court for the Northern District of Mississippi, the U.S. District Court for the Southern District of Mississippi, and the U.S. Court of Appeals for the Fifth Circuit. He is also a member of the Mississippi Bar Association, the Mississippi Association for Justice, and the American Trial Lawyers Association.
Mr. Edwards received his undergraduate and graduate degrees from Millsaps College (B.B.A. and M.B.A.) and his law degree from the University of Mississippi (J.D.).
Law Offices of Calton & Calton
Jimmy S. Calton, Jr.
Jimmy S. Calton, Jr. is a partner at the Law Offices of Calton and Calton. His current practice areas include civil trial, personal injury, automobile accidents and injuries, family law, divorce, domestic relations, commercial real estate, residential real estate, social security disability, criminal defense, driving while intoxicated, drugs and narcotics, and juvenile law.
Mr. Calton, Jr., is a member of the State Bar of Alabama and the U.S. District Court for Middle District of Alabama.
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Mr. Calton, Jr. received his undergraduate and law degrees from the University of Alabama (B.A. and J.D., respectively).
Jimmy S. Calton, Sr.
Jimmy S. Calton, Sr. is a partner at the Law Offices of Calton & Calton. Mr. Calton, Sr., is a member of the State Bar of Alabama. Mr. Calton, Sr. received his undergraduate degree from Birmingham-Southern College (B.A.) and his law degree from Vanderbilt University (J.D.).
Walter B. Calton, Esq.
Walter B. Calton is a current Municipal Judge for the Eufaula Municipal Court in Alabama and, serves as a Court-Appointed Special Master for large class action lawsuits. He is a former Assistant District Attorney, City Prosecutor, and Assistant Attorney General.
Mr. Calton practices in the areas of class actions, domestic relations, property law, fraud, and personal injury.
Mr. Calton received his undergraduate degree from Birmingham–Southern College and his law degree from Faulkner University, Jones School of Law. He was admitted to practice in the State Bar of Alabama in 1991.
Cross & Kearney, PLLC
Othello C. Cross
Othello Cross is a founding partner of Cross & Kearney, PLLC. He primarily practices in the areas of criminal law, personal injury litigation, probate, and real property. Mr. Cross served as counsel in the Pigford class action, the landmark case in which the USDA agreed to pay black farmers the largest civil rights damages award ever provided by the federal government – approximately $1 billion.
Mr. Cross is a member of the Arkansas Bar Association, Arkansas Trial Lawyers Association, Jefferson County Arkansas Bar Association, W. Harold Flowers Law Society, American Bar Association, American Trial Lawyers Association, and National Bar Association. He also served on the Arkansas State Claims Commission, presiding over claims of all natures against the State of Arkansas and its agents and departments, who are immune from civil suit.
Mr. Cross is admitted to practice in all courts in the State of Arkansas, in the U.S. District Courts for the Eastern and Western Districts of Arkansas, and in the U.S. Court of Appeals for the Eighth Circuit.
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Mr. Cross received his undergraduate degree from the University of Arkansas at Pine Bluff (B.S., Biology) and his law degree from the University of Arkansas, Fayetteville School of Law (J.D.). He was admitted to the Arkansas State Bar in 1979.
Jesse L. Kearney
Jesse Kearney is a partner with Cross & Kearney, PLLC. He was among the Court-recognized counsel in the Pigford class action case beginning in 1999, in the course of which he handled adjudication and arbitration and sought monitor review of Track A and Track B claims, prevailing on 70% of them. In addition, as part of this process, his firm obtained one of the largest Track B awards made in the Pigford arbitration process.
Except for periods of government service, Mr. Kearney has practiced Title VII law, general civil rights law, and maintained a general practice for the past 34 years. In addition, he acted as general counsel for State Labor and Local Service Departments and for the Arkansas State Police. He also represented these agencies in all State and Federal Courts in and for Arkansas, and in the U.S. Supreme Court. Further, he represented the State in all criminal appeals, to the Arkansas Court of Appeals, Arkansas Supreme Court, and U.S. Supreme Court.
Mr. Kearney served as Assistant Arkansas Attorney General from 1977 through 1979. From 1979 through 1981, he served as Special Assistant to Governor Bill Clinton, including as the Governor’s liaison to the State Labor Department, State Local Government Services Department, Employment Security Department and Federal Government Programs. In 1981, he served as Arkansas State Claims Commissioner. This quasi judicial commission, composed of three commissioners, exercised limited subject matter jurisdiction with unlimited jurisdictional amounts, over claims of all nature against the State of Arkansas or its agents and departments, including injunctive and monetary relief, enforcement of property, contract, and civil rights against agents and officers of the state. From 1989 through 1991, he served as Circuit Judge for the 11th District, State of Arkansas, a State Constitutional Court with general jurisdiction over State and Federal Constitutional, criminal, civil, and equitable jurisdiction, in which he handled over 5,000 cases. From 1989 through 2000, he served as Magistrate in Probate and Chancery Court, 11th District West, State of Arkansas, excluding his time as Circuit Judge. From 1992 to 2000, he served as Special County Judge, Jefferson County, State of Arkansas, with presiding judicial functions to the County Judge, covering limited subject matter jurisdiction applying state law and county ordinances, where assigned by statute.
Mr. Kearney received his undergraduate and law degrees from the University of Arkansas in 1973 and 1976, respectively. He was admitted to the Arkansas State Bar in 1976. He is also admitted to practice in all courts in Arkansas, and in the U.S. District Court for the Eastern and Western Districts in Arkansas, the U.S. Circuit Court of Appeals for the Eighth Circuit, and the U.S. Supreme Court. In addition, he is a member of the American Bar Association, American Trial Lawyers Association, National Bar
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Association, Arkansas Bar Association, Arkansas Trial Lawyers Association, Jefferson County Arkansas Bar Association, and the W. Harold Flowers Law Society.
Gleason & McHenry
Don O. Gleason, Jr.
Mr. Gleason lives in Tupelo, MS and is a founding partner in the law firm of Gleason & McHenry, PLLC. Since its inception in 2001, the law firm of Gleason & McHenry has focused on helping individuals in all aspects of civil and criminal litigation, both on the state and federal level. Mr. Gleason focuses his practice primarily on civil litigation on behalf of consumers both large and small. He has successfully represented hundreds of victims in mortgage fraud, and mortgage servicing fraud cases. Presently, Mr. Gleason represents numerous corporate victims in the Polyurethane Anti-Trust Litigation. Locally, Mr. Gleason represents individuals in a wide range of cases that includes personal injury, workers’ compensation, and criminal defense.
Mr. Gleason received his B.A. from the University of Mississippi in 1993 and his Juris Doctorate in 1999, also from the University of Mississippi. He is a member of the Mississippi Bar Association, the American Association of Justice, the National Association of Consumer Advocates, and is a Board Member and member of the Leader’s Forum of the Mississippi Association of Justice.
Michael B. McHenry
Michael B. McHenry is a founding partner in the firm of Gleason and McHenry, PLLC. Gleason and McHenry was founded in 2001 in Tupelo, MS. Since its inception Gleason & McHenry has focused on helping individuals in all aspects of civil and criminal litigation both on a state and federal level. Mr. McHenry has successfully represented hundreds of victims in mortgage fraud and mortgage servicing fraud cases. Aside from his mass tort practice, Mr. McHenry also handles claims for damages associated with violations of the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, workers’ compensation, personal injury, social security benefits, as well as helping individuals with estate planning issues.
Michael B. McHenry is licensed to practice law in Mississippi and Alabama and is a Certified Estate Planner. He is a 1999 graduate of the University of Mississippi School of Law. Prior to enrolling in law school, Mr. McHenry attended Mississippi State University where he graduated with a B.A. in Banking and Finance in 1996. Immediately following law school and prior to founding Gleason & McHenry, Mr. McHenry worked for one of the largest insurance defense firms in Mississippi, defending various insurance companies and corporations in both state and federal court.
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Gowan Law Office, PLLC
Stephen L. Gowan
Stephen L. Gowan is a partner in Gowan Law Office, PLLC. Mr. Gowan is a graduate of Mississippi State University in 1986 with a B.S. in Business Administration, and of University of Mississippi School of Law in December of 1990. Mr. Gowan has been admitted to practice in State and Federal Courts in Mississippi since 1991.
In 1995, he became a partner in Moore and Jones in Hattiesburg, Mississippi where he handled commercial litigation for financial institutions. Since founding Gowan Law Office, PLLC in 1998, he has represented financial institutions, as well as individuals with lender-related claims, as well as personal injury and mass tort claims.
In addition, Mr. Gowan has extensive experience in the agricultural field, having operated cotton, grain, and timber farms since 1990. He is currently general counsel for AgSaver, LLC and Hampton Pugh Company in McGeehee, Arkansas.
Heninger Garrison Davis, LLC
William Lewis Garrison, Jr.
William Lewis Garrison, Jr. is one of the founding members of Heninger Garrison Davis, LLC. His practice focuses primarily on pharmaceutical product liability. Mr. Garrison also represents clients in a variety of matters involving complex civil litigation.
Mr. Garrison has significant experience with class actions and mass torts. He has served as Lead or Co-Counsel in numerous toxic tort, consumer protection, and product liability class action suits, including In re Cheerios Marketing & Sales Practices Litigation, MDL No. 2094; In re Apple iPhone 3G Products Liability Litigation, MDL No. 2045; In re Bayer Corp. Combination Aspirin Products Marketing and Sales Practices Litigation; Cusick v. Southwest Airlines Co., Inc., Case No. 3-09-CV-137-F; In re MasterCard International, Inc. Internet Gambling Litigation, and Visa International Service Association Internet Gambling Litigation, MDL Nos. 1321 and 1322; In re Welding Fume Products Liability Litigation, MDL No. 1535; In re Zyprexa Litigation, MDL No. 1596; In re Seroquel Litigation, MDL No. 1769; In re Vioxx Marketing, Sales Practices and Products Liability Litigation, MDL No. 1657; In re Diet Drug Litigation, MDL No. 1203; In re Kugel Mesh Hernia Patch Litigation, MDL No. 1842; In re Levaquin Products Liability Litigation, MDL No. 1943; In re Ortho Evra Litigation, MDL No. 1742; In re Guidant Corp. Litigation, MDL No. 1708; and In re Medtronic, Inc. Implantable Defibrillators Products Liability Litigation, MDL No. 1726.
Mr. Garrison is a member of the Alabama State Bar, as well as the State Bar of Georgia. He is also a member of the American Bar Association, the U.S. Supreme Court Historical Society, the Alabama State Bar Association, the Association of Trial Lawyers of America, the Alabama Trial Lawyers' Association, and the Birmingham Bar
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Association, where he has served on the grievance, public relations, and special assignments committees. Mr. Garrison is also a frequent speaker at continuing legal education seminars.
Mr. Garrison graduated from the University of Alabama in 1977 (B.S.) and from the Cumberland School of Law of Samford University in 1983 (J.D.). He is admitted to practice in the U.S. Supreme Court, the U.S. Court of Appeals for the Fourth and Eleventh Circuits, and the U.S. District Courts for the Northern, Middle and Southern Districts of Alabama, the Eastern District of Arkansas, and the Middle and the Northern District of Georgia.
William L. Bross
William L. Bross focuses his practice in the areas of pharmaceutical and medical device litigation, where he has been actively involved in settlements for thousands of persons injured by defective drugs and medical devices. Mr. Bross’ practice also includes nursing home, personal injury, and real estate litigation. Additionally, he has experience in numerous MDL cases, including Medtronic Devices, Guidant Devices, Kugel Hernia Mesh, Diet Drugs, Levaquin, Vioxx, Neurontin, and the Ortho Evra Birth Control Patch.
Mr. Bross was admitted to the Alabama Bar in 1999. He is also a member of the U.S. District Court for the Northern, Middle and Southern Districts of Alabama. Mr. Bross is a member of the Birmingham Bar Association, Alabama Trial Lawyers Association, American Association for Justice and the American Health Lawyers Association. Prior to practicing law, Mr. Bross, also a registered nurse, served in a variety of settings in the healthcare industry in management at various levels.
Mr. Bross received his undergraduate degree in Psychology and Classics from the University of Alabama, Tuscaloosa in 1982. He also received a Bachelor of Science in Nursing in 1987 and his M.B.A. in 1990 from University of Alabama, Birmingham. Mr. Bross earned his law degree from Birmingham School of Law in 1999. In addition to his law degree, Mr. Bross holds Nursing and Real Estate licenses in Alabama.
Gayle L. Douglas
Gayle L. Douglas focuses her practice areas on consumer fraud, pharmaceutical liability and personal injury. She has experience in numerous mass tort and class action cases including Kugel Hernia Mesh, Apple iPhone 3g, and Bayer Corporation Combination Aspirin Products. Ms. Douglas has also been appointed to the Plaintiffs’ Executive Committee in the Multi-District Litigation In re Cheerios Marketing and Sales Practices.
Ms. Douglas was admitted to the Alabama Bar in 2002 and the Florida Bar in 2003. She is a member of the U.S. District Court for the Northern, Middle and Southern Districts of Alabama, and the U.S. Court of Appeals for the Eleventh Circuit.
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Ms. Douglas received her undergraduate degrees at Florida State University. She received her Juris Doctor from the University of Alabama School of Law, where she was a member of the John A. Campbell Moot Court Board and the Jessup International Moot Court Team.
In addition to regular pro bono work, Ms. Douglas currently serves as co-chair for the Teen Court of Jefferson County. She has also received an award for Distinguished Service from the Women’s Section of the Birmingham Bar Association. Ms. Douglas was named an Alabama Rising Star for 2011 by Super Lawyers.
McEachin & Gee LLP
Donald McEachin
Senator Donald McEachin was first elected to the Virginia State Senate in 2007, where he continues to serve, after having been first elected to the Virginia House of Delegates in 1996.
After practicing with Browder, Russell, Morris and Butcher and Morris and Morris in Richmond, Mr. McEachin opened a law firm with the Gee brothers, called McEachin and Gee. In 2001, Senator McEachin went out on his own, founding the McEachin Law Firm on Broad Street in Richmond, before rejoining with his partner, Donald Gee, in 2006.
Senator McEachin is very active in the community, and is a lifetime member of Kappa Alpha Psi fraternity, the NAACP, the Virginia State Bar, and the Virginia Trial Lawyers Association.
Donald McEachin is a graduate of American University (B.S.) and of the University Of Virginia School Of Law (J.D.).
Patton Boggs, LLP
Anurag Varma
Anurag Varma joined Patton Boggs LLP as Of Counsel in September 2007, and serves in the firm's civil litigation and international public policy practices. Prior to joining Patton Boggs, from 1997 to 2007, Mr. Varma was a partner at Conlon, Frantz, Phelan & Varma, LLP, and an associate at its predecessor firm, Conlon, Frantz, Phelan and Pires, LLP.
Mr. Varma has served as counsel in Keepseagle v. Vilsack, the Native American farmers and ranchers’ lawsuit against the USDA, from the inception of the case to the present. During this time, Mr. Varma has served on the litigation strategy team, drafted Court filings, taken depositions, prepared and responded to document discovery, and maintained contact with class representatives and other class members, tribal
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governments and other tribal agricultural leaders, Native American and agricultural media, and interested Members of Congress.
From 1997-2007, Mr. Varma also worked with lead plaintiffs' counsel in the Pigford class action case against the USDA, which was settled by the parties in January 1999. In Pigford, Mr. Varma led Class Counsel's successful efforts in assisting over 20,000 class members, across 29 states, in completing the forms necessary to participate in the settlement.
On December 14, 2010, Mr. Varma testified before the United Nations Forum on Minority Issues, hosted by the U.N. High Commission on Human Rights, on the topic of "Achieving Justice for Minority Farmers through Litigation." Outside of civil litigation, Mr. Varma co-chairs Patton Boggs' India Practice. This work involves representing U.S. interests in connection with market entry and other public policy concerns in India, as well as Indian companies and the Government of India in resolving issues related to U.S. Congressional and regulatory activities. In that capacity, among other things, Mr. Varma served as lead public policy counsel for U.S. industry in the successful Congressional approval of the historic U.S.-India Civil Nuclear Agreement.
Mr. Varma received a J.D. from the University of Denver College of Law (1997), where he served as Articles Editor for the Denver Journal of International Law and Policy, and an L.L.M. (International) from the Georgetown University Law Center (1999). Mr. Varma also received a Bachelor of Commerce (B.Comm.) degree from the University of Alberta, Canada (1994).
Benjamin G. Chew
Benjamin G. Chew represents clients involved in commercial litigation and arbitration throughout the United States and internationally. He handles a wide variety of disputes, involving breach of contract, Uniform Commercial Code, products liability, lease and other real estate transactions, personal injury, insurance law, trade association liability, and fraud. He also has substantial experience in arbitration, mediation, and other forms of alternative dispute resolution. In addition, he serves as the firm’s primary litigator in Virginia state and federal cases.
Mr. Chew practices before myriad state and federal courts, including bankruptcy, where he has prosecuted and defended several adversary complaints, preference actions and related matters. In recent years, he has successfully defended manufacturers and a major trade association in products liability cases across the nation, and has won defense verdicts for an oil services company in two cases which preserved the company’s core intellectual property. He successfully represented the Governments of Dubai, Ecuador, and Honduras in U.S.-based litigation. Currently, he is representing the world’s largest manufacturer of industrial batteries in complex litigation in Delaware, prosecuting a major products liability case for a cosmetics company in federal court in New Jersey, defending a pharmaceutical company in a multi-district class action, and pursuing a
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major RICO case in the Eastern District of Virginia and a large products liability case in federal court in New Jersey.
Mr. Chew serves as the co-chair of Patton Boggs’ Pro Bono Committee. Mr. Chew received his undergraduate degree from Princeton University in 1984 and his law degree from University of Virginia in 1988.
Jude Kearney
Jude Kearney serves chair of Patton Boggs’ International Business practice group. Mr. Kearney is an international project finance specialist, counseling clients on the structure and terms of their relationship with others involved in project developments in foreign markets. In his current practice, Mr. Kearney also has significant experience in securities law, mergers and acquisitions, complex litigation, and general corporate matters. In addition, he has substantive experience in all major international markets, and specializes in projects in Africa, Asia, especially China, and other emerging markets. Within this project specialty, Mr. Kearney concentrates heavily in the areas of energy, telecommunications, infrastructure projects, and financial service industries. His clientele includes major U.S. and foreign companies as well as public sector clients, including governments and their relevant agencies, as well as state-owned commercial enterprises.
In the course of developing his renowned project finance and development experiences, Mr. Kearney lived and practiced in Johannesburg, South Africa for five years, culminating in his recognition as one of the top international project finance lawyers and recognition as a top international lawyer in Chambers Global 's list of top lawyers.
Mr. Kearney previously served as Deputy Assistant Secretary for Service Industries and Finance at the U.S. Department of Commerce. During his time at the Department, he oversaw the trade offices responsible for government-wide promotional efforts on behalf of the service industry. In particular, these efforts covered the areas of trade policy and export promotion. Mr. Kearney also served as former Lecturer in the Economics Department at the University of Lagos in Nigeria.
Mr. Kearney received his undergraduate degree from Harvard University, with honors, in 1980. He received his law degree from Stanford Law School in 1984. Mr. Kearney served as Co-Chairman of the Black American Law Students Association and was awarded the Michael C. Rockefeller Traveling Fellowship recipient during his academic years.
Ramona L. Quillet
Ramona Quillet counsels clients on a range of issues, primarily in the areas of civil litigation and appellate procedure.
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Previously, Ms. Quillet served as a research assistant for Professor Mildred Robinson at the University of Virginia, where she focused on estate taxation and trusts law. During law school, Ms. Quillet actively participated in the Black Law Students Association’s Thurgood Marshall Mock Trial competition. As an undergraduate, she volunteered her time writing press releases and tracking bills through various committees for Florida Rep. Arthenia L. Joyner.
Ms. Quillet received a Bachelor of Science in Economics and Political Science, magna cum laude, in 2004 and her law degree from the University of Virginia in 2008.
Relman & Dane, PLLC
John P. Relman
John P. Relman is the founder and director of Relman, Dane & Colfax PLLC. Since 1986, Mr. Relman has represented scores of plaintiffs and public interest organizations in individual and class action discrimination cases in federal court. From 1989 to 1999, Mr. Relman served as project director of the Fair Housing Project at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. Under his leadership the project achieved national recognition, winning some of the largest housing, lending, and public accommodations discrimination jury verdicts and settlements obtained in the country.
From 1986 to 1989, Mr. Relman worked as a staff attorney at the National Office of the Lawyers’ Committee. Prior to joining the Committee, he clerked for the Honorable Sam J. Ervin III of the U.S. Court of Appeals for the Fourth Circuit and the Honorable Joyce Hens Green of the U.S. District Court for the District of Columbia. Mr. Relman’s better-known cases include Timus v. William J. Davis, Inc. ($2.4 million jury verdict for housing discrimination against families with children); Dyson v. Denny’s Restaurants ($17.725 million class settlement for racial discrimination against customers); Pugh v. Avis Rent-A-Car ($5.4 class settlement for racial discrimination in the rental of cars); Gilliam v. Adam’s Mark Hotels ($2.1 million class settlement for racial discrimination against guests); and Kennedy v. City of Zanesville ($10.8 million race discrimination jury verdict). Mr. Relman has written and lectured extensively in the areas of fair housing and fair lending law and practice and has provided numerous training classes and seminars for plaintiffs’ lawyers, fair housing organizations, the real estate industry, and lending institutions. He is the author of Housing Discrimination Practice Manual, published by the West Group.
Mr. Relman teaches public interest law at Georgetown University Law Center, where he serves as an adjunct professor. He received his law degree from the University of Michigan in 1979 and undergraduate degree from Harvard in 1983.
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Reed Colfax
Reed Colfax is a partner at Relman, Dane & Colfax PLLC, where he represents individuals and organizations in cases under the Fair Housing Act and other federal and state anti-discrimination laws.
Mr. Colfax was lead counsel in Kennedy v. City of Zanesville, a sixty-seven plaintiff challenge to the City of Zanesville, Ohio and Muskingum County’s refusal to provide water services to a predominately African-American community. The case culminated in a $10.8 million verdict. Mr. Colfax was also lead counsel in a Fair Housing Act case asserting that zoning policies used by the City of Saratoga Springs, New York had a discriminatory disparate impact on African Americans and families with children, which resulted in a $1 million verdict to The Anderson Group, an Albany, New York builder that sought to construct a mixed-income housing development in the virtually all-white city.
Prior to joining Relman, Dane & Colfax, Mr. Colfax was the project director of the Fair Housing Project at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs from 2000 to 2004 and a Skadden Fellow with the NAACP Legal Defense and Education Fund, Inc., from 1997 to 1999. While with the Washington Lawyers’ Committee, Mr. Colfax coordinated and litigated numerous legal challenges to discrimination by restaurants and hotels against African-American motorcyclists attending Black Bike Week in Myrtle Beach, South Carolina. Mr. Colfax was also lead counsel in 2922 Sherman Ave. v. District of Columbia, a Fair Housing Act case against the District of Columbia for its condemnation of multi-family apartment buildings in predominately Latino neighborhoods of the city. Mr. Colfax has been a frequent lecturer on a variety of issues related to housing and public accommodations discrimination before numerous national, state, and local groups including the NAACP, National Legal Aid and Defenders Association, and the National Fair Housing Alliance.
Mr. Colfax received his undergraduate degree, graduating magna cum laude, from Harvard University in 1992 and received his law degree from Yale Law School in 1996.
Jennifer Klar
Jennifer Klar is a partner at Relman, Dane & Colfax. Ms. Klar has extensive experience litigating federal discrimination cases, including in areas of employment, housing, and police misconduct. As a result of her work in race discrimination cases, Ms. Klar has twice been a Finalist for the “Trial Lawyer of the Year” awarded by Trial Lawyers for Public Justice.
Ms. Klar currently represents a putative nationwide class of all African-American Special Agents of the United States Secret Service claiming racial discrimination in promotions by the Secret Service. Moore, et al. v. Napolitano, Civ. Case No. 00-953 (D.D.C.). In 2010, Ms. Klar was lead counsel in a two-week federal jury trial in which the jury returned a $900,000 verdict on behalf of five African-American officers of the
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Washington, D.C. Metropolitan Police Department. Caudle, et al. v. District of Columbia, Civ. Case No. 08-205 (D.D.C.).
In 2009, Ms. Klar led a trial team that won a $250,000 verdict on behalf of an African-American couple whose landlord removed and burned all their belongings while they were out of town. Johns v. Stillwell, Civ. Case No. 07-063 (W.D. Va.). Ms. Klar was a vital part of the litigation team from Relman, Dane & Colfax that secured a federal jury verdict of approximately $10.8 million for residents of a predominately AfricanAmerican community who were denied water service on the basis of race for nearly fifty years. Kennedy, et al. v. City of Zanesville, et al., Civ. Case No. 03-1047 (S.D. Ohio).
Ms. Klar served on the investigation and habeas corpus hearing team in the landmark Tulia, Texas case, which resulted in the release from prison of 12 individuals and full pardons for 35 individuals who were wrongfully convicted based solely on the testimony of an unreliable and racist undercover narcotics task force agent. Ms. Klar represented plaintiffs in a federal civil rights action resulting from a similar round-up of African-American individuals in Hearne, Texas. Kelly, et al. v. Paschall, et al., Civ. Case No. 03-179 (W.D. Tex.).
Ms. Klar graduated magna cum laude from Harvard Law School in 2002 and received her undergraduate degree magna cum laude from Brown University in 1998. Prior to joining Relman, Dane & Colfax, Ms. Klar worked in the Community Services Department at Hogan & Hartson and at the American Civil Liberties Union.
Rutland & Jankiewicz, LLC
Michael A. Rutland
Michael A. Rutland received his undergraduate degree from Troy State University in 1979 (B.S. Psychology), his graduate degree from Troy State University in 1982 (M.S. Psychology), and his law degree from Faulkner University, Thomas Goode Jones School of Law, in 1996 (J.D.).
Mr. Rutland’s primary practice areas include family law, juvenile and adult criminal defense, probate, and personal injury. He was admitted to the Alabama State Bar in 1997, and is authorized to practice in both state and federal courts.
Kindaka Sanders, Esq.
Kindaka Sanders is a Tennessee Board of Regents Access & Diversity Assistant Professor at the University of Memphis Cecil C. Humphrey’s School of Law. Prior to this position, Mr. Sanders was an Attorney and an Administrator at the law firm of Chestnut, Sanders, Sanders, Pettaway, Campbell & Albright, where he litigated claims involving civil matters, personal injury, employment discrimination, property, intellectual property, family law, entertainment law, wrongful death, and various constitutional issues.
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Mr. Sanders is admitted to practice law before the Alabama Supreme Court. He received his undergraduate degree from Morehouse College in 1997 and his law degree from Harvard Law School in 2000.
Strom Law Firm, LLC
Joseph P. Strom, Jr.
Mr. Strom founded the Strom Law Firm in 1996. He currently practices in the areas of complex litigation and class actions, and also defends criminal cases in State and Federal courts in South Carolina. He represents individuals in class actions, personal injury – including traumatic injury, defective products, defective drugs, and nursing home neglect – professional license defense, and predatory lending.
After graduating from law school, Mr. Strom served as law clerk to the Honorable Frank Eppes, Thirteenth Judicial Circuit. In 1985, Mr. Strom joined the Fifth Judicial Circuit Solicitor’s Office as an Assistant Solicitor. While serving as Assistant Solicitor, Mr. Strom handled over 200 drug cases, prosecuting the largest heroin trafficking case in South Carolina at that time, a case involving over 100 grams of heroin. In 1986, Mr. Strom became a partner at Leventis, Strom and Wicker. In 1988, he formed the Law Offices of J.P. Strom, Jr. In 1990, he became a partner at Bolt, Popowski, McCullouch & Strom.
In 1993, Mr. Strom became a United States Attorney for the District of South Carolina, appointed by President Clinton, becoming the youngest United States Attorney in the country. As the United States Attorney for the District of South Carolina, Mr. Strom created the Violent Crimes Task Force in South Carolina, which Attorney General Reno referred to as “a national model for the country through a provocative violent crime initiative.” While serving as United States Attorney, Mr. Strom also served on Justice Department committees relating to organized crime, white collar crime, sentencing guidelines, and juvenile justice.
. Mr. Strom is a member of the South Carolina Bar, the South Carolina Association for Justice (past President), the American Association for Justice, the Southern Bar Association, the South Carolina Criminal Defense Lawyer’s Association, the Fourth Circuit Judicial Conference, the National Association of Former United States Attorneys and the National Crime Victim Bar Association.
Mr. Strom is admitted to practice in the United States District Court, District of South Carolina and the United States Court of Appeals, Fourth Circuit.
Mr. Strom graduated from the University of South Carolina in 1981 (B.A.) and from the University of South Carolina School of Law in 1984 (J.D.). Mr. Strom also attended the Harvard University Program for Senior Executives in State and Local Government.
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Mario A. Pacella
Mr. Pacella is a partner in the Strom Law Firm. He represents individuals in a wide array of civil cases, including class actions, civil rights, social security disability, administrative law, personal injury – including traumatic injury, defective products, defective drugs, nursing home neglect – and predatory lending. Mr. Pacella has also been named as class counsel in numerous class actions in South Carolina and nationwide. He has also represented numerous clients in criminal matters, including individuals and corporations accused of mail fraud, wire fraud, securities fraud, drug distribution, check kiting, and numerous other crimes. In addition, Mr. Pacella has litigated appeals in state and federal courts in South Carolina and Georgia and has appealed cases to the U.S. Supreme Court.
Mr. Pacella graduated from the College of William and Mary in 1994 with degrees in Government and History. While at the College of William and Mary, he was a member of Omicron Delta Kappa, an honorary society for leadership and academic achievement. In 1997, he graduated from the William and Mary School of Law, ranking in the top ten percent of his class.
Immediately following law school, Mr. Pacella clerked for U.S. Magistrate Judge James E. Graham in Brunswick, Georgia. Following his clerkship and prior to joining the Strom Law Firm, Mr. Pacella served as an Assistant Public Defender in DeKalb County, Georgia. He also served as special counsel to the Center for Prisoners’ Legal Assistance in Georgia and assisted inmates with habeas corpus petitions and wrote the litigation manual for inmate litigation under 42 U.S.C. Sec. 1983.
Mr. Pacella is a member of the South Carolina, Georgia, and New York State Bars and is admitted to practice law in the Southern, Northern and Middle Districts of Georgia; the U.S. District Court of South Carolina; the U.S. Court of Appeals, Fourth Circuit; and, the U.S. Supreme Court. He is also a member of the South Carolina Association for Justice and the American Association for Justice.
Bakari Sellers
Bakari T. Sellers has worked with the Strom Law Firm, LLC since 2007 and currently serves as a member of the South Carolina House of Representatives, where he has represented the 90th District since 2006.
Mr. Sellers graduated from the South Carolina public school system, and then proceeded to Morehouse College, where he earned a Bachelor of Arts degree in 2005. After graduating from Morehouse College, Mr. Sellers attended the University of South Carolina School of Law where he graduated in 2008.
Mr. Sellers is a member of the South Carolina Bar, the South Carolina Association for Justice, and the National Association of Bond Lawyers.
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In re BLACK FARMERS DISCRIMINATION LITIGATION, Docket No. 1:08-mc-00511 (D.D.C. Aug 07, 2008), Court Docket
General Information

Case Name Docket Number Court Nature of Suit Related Opinion(s)

In re BLACK FARMERS DISCRIMINATION LITIGATION 1:08-mc-00511 United States District Court for the District of Columbia Civil Rights: Other 820 F. Supp. 2d 78 2012 BL 33396

© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6L0JC3GO2?documentName=188.xml

 </s> Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 2 of 110

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

Misc. No. 08-mc-0511 (PLF)

SETTLEMENT AGREEMENT
February 18, 2010 (Revised and Executed as of May 13, 2011)

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 3 of 110
TABLE OF CONTENTS
I. RECITALS........................................................................................................................ 1 II. DEFINITIONS.................................................................................................................. 3 III. THE SETTLEMENT CLASS ......................................................................................... 9 IV. DISMISSAL AND FUNDING ......................................................................................... 9 V. NON-JUDICIAL CLAIMS PROCESS ........................................................................ 15
A. GENERAL REQUIREMENTS ............................................................................ 15 B. REVIEW OF THE CLAIM SUBMISSION AND THE CLASS MEMBERSHIP
DETERMINATION ............................................................................................. 19 C. TRACK A ............................................................................................................. 22 D. TRACK B ............................................................................................................. 25 E. DISTRIBUTION OF CLAIM DETERMINATIONS AND SETTLEMENT
FUNDS ................................................................................................................. 27 VI. OMBUDSMAN ............................................................................................................... 32 VII. ACCELERATIONS AND FORECLOSURES ............................................................ 32 VIII. THE DUTIES OF CLASS COUNSEL ......................................................................... 33 IX. PROCEDURES GOVERNING APPROVAL OF THIS AGREEMENT ................. 36 X. ATTORNEYS’ FEES, EXPENSES, AND COSTS...................................................... 38 XI. CONDITIONS THAT RENDER AGREEMENT VOID OR VOIDABLE .............. 39 XII. EFFECT OF AGREEMENT IF VOIDED................................................................... 40 XIII. RELEASES ..................................................................................................................... 41 XIV. NO ADMISSION OF LIABILITY ............................................................................... 42 XV. CONTACT INFORMATION FOR THE SECRETARY AND FSA......................... 43 XVI. CONTINUING JURISDICTION.................................................................................. 43 XVII. INTEGRATION ............................................................................................................. 43 XVIII. MODIFICATION ........................................................................................................... 44 XIX. DUTIES CONSISTENT WITH LAW AND REGULATIONS ................................. 44 XX. DUTY TO DEFEND....................................................................................................... 44 XXI. HEADINGS ..................................................................................................................... 44 XXII. SEVERABILITY ............................................................................................................ 44 XXIII. COUNTERPARTS ......................................................................................................... 44
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EXHIBITS
EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G EXHIBIT H EXHIBIT I EXHIBIT J

"TRACK A" CLAIM DETERMINATION FORM "TRACK B" CLAIM DETERMINATION FORM CLAIM FORM AUTHORIZATION TO DISCLOSE DEBT INFORMATION FORM QUARTERLY DISBURSEMENT REPORTING FORM YOUR CLAIM PACKAGE IS NOT COMPLETE YOU HAVE NOT SUBMITTED YOUR CLAIM ON TIME YOU ARE NOT A CLASS MEMBER QUARTERLY CLAIM DETERMINATION REPORTING FORM INTERIM LETTER TO APPROVED CLAIMANTS

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SETTLEMENT AGREEMENT
This Settlement Agreement (“Agreement”) is entered into between the Signatory Plaintiffs, by and through Signatory Plaintiffs’ Counsel, and the Secretary of the U.S. Department of Agriculture (“the Secretary” or “USDA”), by and through the Secretary’s Counsel, to resolve, fully and forever, the claims raised or that could have been raised in the cases consolidated in In re Black Farmers Discrimination Litigation, No. 08-mc-511 (D.D.C.), including, but not limited to, the claims asserted under Public Law No. 110-234 and/or 110-246, § 14012 (2008).
I. RECITALS
A. In 1997, a putative class of African-American farmers brought suit against USDA under, inter alia, the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-1691f, for alleged discriminatory actions in the acquisition of farm credit, credit servicing, and non-credit farm benefits. This case was called Pigford v. Glickman, No. 97-1978 (D.D.C.) (“Pigford ”).
B. On January 5, 1999, the Court in Pigford certified the following Class pursuant to Federal Rule of Civil Procedure 23(b)(3):
All African American farmers who (1) farmed, or attempted to farm, between January 1, 1981 and December 31, 1996; (2) applied to [USDA] during that time period for participation in a federal farm credit or benefit program and who believed that they were discriminated against on the basis of race in USDA’s response to that application; and (3) filed a discrimination complaint on or before July 1, 1997, regarding USDA’s treatment of such farm credit or benefit application.
C. After notice and an opportunity to be heard by all Pigford Class Members, on April 14, 1999, the Court approved the terms of a Consent Decree which provided the Class Members with a choice of non-judicial processes (i.e., “Track A” or “Track B”) for resolving their discrimination claims.
D. The Pigford Consent Decree directed that Pigford Class Members who did not opt out of the Class would have 180 days from entry of the Decree in which to submit completed claim packages. An extension of this deadline until September 15, 2000, was available under Section 5(g) of the Consent Decree (“Section 5(g)”), but only where a Class Member could show that his or her late filing was due to “extraordinary circumstances” beyond the Class Member’s control.
E. Approximately 20,000 individuals filed claims under the Pigford Consent Decree within the 180-day deadline, which was October 12, 1999. On or after October 1

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13, 1999, and on or before September 15, 2000, approximately 61,000 additional individuals sought to participate in the Decree’s claim resolution processes pursuant to Section 5(g). Approximately 2,700 of these individuals were deemed to satisfy the “extraordinary circumstances” test and were permitted to participate in the claim resolution processes. Between September 16, 2000, and June 18, 2008, thousands of additional individuals unsuccessfully sought to participate.
F. Notwithstanding that more than 60,000 individuals were denied participation under the Pigford Consent Decree, and if Pigford Class Members, were bound by the Decree and deemed to have waived and released all claims against USDA that were or could have been raised in Pigford, on May 22, 2008, and again on June 18, 2008, Congress created a new cause of action in Section 14012 of the Food, Conservation, and Energy Act of 2008 for such individuals.
G. Section 14012(i)(1) designates $100,000,000 to pay meritorious Section 14012 claims.
H. Section 14012(d) provides that “[i]t is the intent of Congress that [Section 14012] be liberally construed so as to effectuate its remedial purpose of giving a full determination on the merits for each Pigford claim previously denied that determination.”
I. Section 14012(f) further provides for “expedited resolutions” whereby a person filing a complaint under Section 14012 “may seek liquidated damages of $50,000, discharge of the debt that was incurred under, or affected by, the 1 or more programs that were the subject of the 1 or more discrimination claims that are the subject of the person’s complaint, and a tax payment in the amount equal to 25 percent of the liquidated damages and loan principal discharged[;]” while Section 14012(g) provides an action whereby a plaintiff may seek “actual damages sustained.”
J. On November 30, 2010 and December 8, 2010 respectively, Congress passed and the President signed into law Pub. L. 111-291, which provided an additional $1,150,000,000 “to carry out the terms of [this] Settlement Agreement.”
K. As of January 1, 2011, more than 40,000 plaintiffs had filed individual claims under § 14012 in 23 complaints in the U.S. District Court for the District of Columbia, which have been consolidated under this caption in the Consolidated Case.
L. In order to bring the Consolidated Case to a close FOREVER and FINALLY, the Parties have determined to settle the Consolidated Case, including all claims that the proposed Class and Class Members have brought or could have brought in the 2

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Consolidated Case, and including all claims that have been or could have been brought under Section 14012.
M. The Signatory Plaintiffs believe that the terms of this Agreement are fair, reasonable, and adequate; that this Agreement provides substantial benefits to the proposed Class and the Class Members; and that settlement of the Consolidated Case on the terms set forth in this Agreement is in the best interests of the proposed Class and the Class Members. Signatory Plaintiffs recognize that the amount of the funding for the Settlement may not be sufficient to provide recovery in the full amount contemplated for successful Claimants by Section 14012, and that the amount actually recovered by each successful Claimant will depend on the amount of funding appropriated and the number of successful Class Members.
N. The Secretary expressly denies any wrongdoing, as alleged in the Consolidated Case or otherwise, and does not admit or concede any actual or potential fault, wrongdoing or liability in connection with any facts or claims that have been or could have been alleged in the Consolidated Case. Nonetheless, the Secretary considers it desirable to settle the Consolidated Case on the terms set forth in this Agreement because it will avoid disruption to USDA due to the pendency and defense of the Consolidated Case, and it will avoid the substantial expense, burdens, and uncertainties associated with litigation of the Consolidated Case.
O. Accordingly, the purpose of this Agreement is to make a full, complete, and final resolution of all claims and causes of action that have been or could have been asserted against the Secretary by the proposed Class and the Class Members in the Consolidated Case arising out of the conduct alleged therein.
P. NOW, THEREFORE, in reliance on the mutual promises, covenants, releases, and obligations as set out in this Agreement, and for good and valuable consideration, the Parties hereby stipulate and agree to resolve all claims that were or could have been at issue in this matter.
II. DEFINITIONS
Unless otherwise noted, as used in this Agreement:
A. “2008 Funds” are the funds ($100,000,000) designated by Congress in Public Law No. 110-234 and/or 110-246, § 14012(i)(1) (2008).
B. “2010 Funds” are the funds ($1,150,000,000) designated by Congress in Public Law No. 111-291, § 201 (2010).
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C. A “Claimant” is any individual who submits a claim and/or seeks an award under this Agreement.
D. The “Claim Deadline” is 180 calendar days from the Final Approval Date.
E. A “Claim Determination” is the binding and final result of Track A and Track B and represents whether, and what amount, a Class Member is eligible to receive as a result of the Non-Judicial Claims Process.
F. The “Claims Administrator” is an administrator approved by the Court and hired by Lead Class Counsel to determine whether individual claimants are members of the Class, to make payments to meritorious Class Members and counsel in accordance with this Agreement, and to conduct other duties as assigned to the Claims Administrator under this Agreement.
G. “Common Benefit Fees” are reasonable attorneys’ fees, expenses, and costs for the work Class Counsel perform on behalf of the Class as a whole both before and after execution of this Agreement, including negotiation of this Agreement, and the work Class Counsel agrees to perform on behalf of the Class as a whole as set forth in this Agreement. Common Benefit Fees do not include Track A Individual Counsel Fees, Track B Fees, or fees for work performed on behalf of individual Class Members who prevail under Track B.
H. “Consolidated Case” refers to the complaints consolidated in In re Black Farmers Discrimination Litigation, No. 08-mc-511 (D.D.C.).
I. The “Cost Cap” is $35,000,000, and represents the maximum amount of Implementation Costs that Class Counsel may pay out of the funds provided by the Secretary under this Agreement; provided, however, that upon application of Class Counsel, the Court may approve the payment of up to $3,500,000 out of the 2008 Funds in reasonable additional fees and costs above the Cost Cap incurred by the Track A Neutrals, the Track B Neutrals, and/or the Claims Administrator arising out of the reporting requirements and/or the audit provisions of Section 201(h) of Pub. L. No. 111-291.
J. “Designated Account” means a bank account, set up by Class Counsel and held for the benefit of the Class, at a Designated Bank that is (1) insured by the Federal Deposit Insurance Corporation up to the applicable limits, (2) a segregated trust account that is not subject to claims of a bank’s creditors, or (3) invested in U.S. Treasury securities.
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K. “Designated Bank” means a bank that has a Veribanc (www.veribanc.com) rating of Green with three stars and one for which neither the bank nor any of its senior officers appear in the Excluded Parties List System (www.epls.gov), which is a list of entities and individuals suspended or debarred from doing business with the federal government.
L. “Effective Date” is the date upon which, if the Agreement is not voided under Section XI, an order providing final approval of this Agreement under Federal Rule of Civil Procedure 23(e) becomes non-appealable, or, in the event of any appeals, upon the date of final resolution of said appeals. When this Agreement refers to the date on which the Agreement became “Effective,” such date is the Effective Date.
M. “Execution Date” is March 23, 2011.
N. “Fee Award” is the total amount approved by the Court for the payment of Common Benefit Fees and Track B Fees.
O. “Fee Base” is the sum of the 2008 Funds plus any 2010 Funds minus $22,500,000.
P. “FSA” is the Farm Service Agency, an agency of USDA.
Q. “Final Approval Date” is the date on which the Court enters an order providing final approval of this Agreement under Federal Rule of Civil Procedure 23(e).
R. “Implementation Costs” are the Court-approved administrative costs associated with implementing this Agreement, including the fees and costs of the Track A and Track B Neutrals, the Claims Administrator, costs incurred under Section VIII.A.3, and the costs necessary to provide notice of this Agreement to the Class. With the exception of the costs incurred under Section VIII.A.3, Implementation Costs do not include (1) attorneys’ fees, costs, and expenses, (2) the costs and expenses associated with preparing and/or submitting claims on behalf of individual Claimants, (3) the fees, expenses, and costs of the Ombudsman (“Ombudsman Costs”), and (4) costs and expenses incurred by Class Counsel in the performance of their duties under this Agreement.
S. “Individual Counsel” are counsel, other than Class Counsel, retained by Claimants to represent them in the Non-Judicial Claims Process.
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T. “Late-Filing Request” is a written request to the Court, the Pigford Facilitator, the Pigford Monitor, the Pigford Adjudicator, or the Pigford Arbitrator seeking to participate in the claims resolution processes in the Pigford Consent Decree.
U. “Multiple Claimants” are partners, shareholders, or family members operating a single farming operation.
V. “Ombudsman Costs” are fees, costs, and expenses paid to the Ombudsman out of the 2008 Funds, subject to approval by the Court, for performance of his or her duties under this Agreement.
W. “Parties” means the Signatory Plaintiffs and the Secretary.
X. “Pigford” means Pigford v. Glickman, Nos. 97-1978, 98-1693 (D.D.C.).
Y. “Pigford Consent Decree” is the April 14, 1999 Consent Decree entered in Pigford.
Z. “Pigford Opt-Out List” is a list maintained or prepared by the Pigford Facilitator that identifies those individuals who the Pigford Facilitator has determined opted out of the Pigford Consent Decree pursuant to Section 2(b) of the Decree.
AA. “Pigford Participants List” is a list maintained or prepared by the Pigford Facilitator that identifies those individuals who the Pigford Facilitator has determined (1) submitted a claim under the Pigford Consent Decree on or before October 12, 1999, or (2) submitted a Late-Filing Request under 5(g) of the Pigford Consent Decree after October 12, 1999, which was determined by the Pigford Arbitrator to satisfy the “extraordinary circumstances” requirement.
BB. “Pigford Timely 5(g) List” is a list maintained or prepared by the Pigford Facilitator that identifies those individuals who the Pigford Facilitator has determined submitted Late-Filing Requests under Section 5(g) of the Pigford Consent Decree after October 12, 1999, and on or before September 15, 2000.
CC. “Preliminary Approval Date” is the date on which the Court enters a Preliminary Approval Order.
DD. “Preliminary Final Accounting Date” is the date that the Secretary receives the Preliminary Final Accounting provided for in Section V.E.7.
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EE. The “Secretary” is, individually and collectively, Thomas Vilsack, in his official capacity as Secretary of USDA, his successors as Secretary of USDA, USDA, its agencies, instrumentalities, agents, officers, and employees.
FF. The “Secretary’s Counsel” is the U.S. Department of Justice.
GG. “Section [or §] 14012” means Public Law No. 110-234 and/or 110-246, § 14012 (2008).
HH. “Signatory Plaintiffs” are the individuals who have filed claims in any of the complaints consolidated into the Consolidated Case as of February 18, 2010 with the exception of the complaints captioned Beckley v. Vilsack, No. 09-1019 (D.D.C.); Edwards v. Vilsack, No. 10-465 (D.D.C.); Latham v. Vilsack, No. 10737 (D.D.C.); Andrews v. Vilsack, No. 10-801 (D.D.C.); and Johnson v. Vilsack, No. 10-839 (D.D.C.).
II. “Track A Individual Counsel Fee” is a fee negotiated between a Claimant and his or her Individual Counsel, subject to a cap set by the Court, which the Claimant agrees to pay to Individual Counsel if he or she obtains a Track A Award and which Individual Counsel agrees to accept in full satisfaction for the fees, expenses, or costs associated with work performed on behalf of the Claimant in obtaining that Award.
JJ. “Track A Neutral” is an adjudicator hired by Lead Class Counsel and approved by the Court, the Secretary, and the Attorney General to determine the merits of the claims submitted under Track A and conduct other duties as assigned under this Agreement. Prior to determining any claims, each Track A Neutral must take an oath administered by the Court that he or she will determine each claim faithfully, fairly, and to the best of his or her ability.
KK. “Track A Award” is a combination of a Track A Liquidated Award, a Track A Tax Award, and a Track A Loan Award, if applicable. A “Provisional” Track A Award refers to the amount specified in Part V of a Track A Determination Form. A “Final” Track A Award refers to the amount specified in Part III of a Track A Determination Form. Track A Awards are subject to reduction based on the amount of available funds and the number of meritorious claims.
LL. “Track A Liquidated Award” is $50,000 per Class Member for credit claims, regardless of the number of the Class Member’s prevailing claims, and $3,000 per Class Member for non-credit claims, regardless of the number of the Class Member’s prevailing claims. A “Provisional” Track A Liquidated Award refers to the amount specified in Part V of a Track A Determination Form. A “Final” Track A Liquidated Award refers to the amount specified in Part III of a Track A 7

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Determination Form. Track A Liquidated Awards are subject to reduction based on the amount of available funds and number of meritorious claims.
MM. “Track A Loan Award” is the amount of a Class Member’s outstanding debt as of the date certain specified in Section V.B.6 incurred under the following FSA Farm Loan Program loans:
1. Those that form the basis of a Class Member’s prevailing credit claim (“Prevailing Loan”);
2. Those that: (a) were part of the same loan program as the Prevailing Loan; (b) originated at the same time or subsequent to the Prevailing Loan but prior to January 1, 1997; and (c) are not the subject of an adverse administrative decision that has become final or an adverse federal or state court judgment that has become final (collectively “Related Loan”); and
3. Those that have been consolidated with or restructured into a new loan that includes either a Prevailing Loan or a Related Loan.
A “Provisional” Track A Loan Award refers to the amount specified in Part V of a Track A Determination Form. A “Final” Track A Loan Award refers to the amount specified in Part III of a Track A Determination Form. Track A Loan Awards are subject to reduction based on the amount of available funds and number of meritorious claims.
NN. “Track A Tax Award” is an award made in recognition of a Class Member’s expected tax liability in an amount equal to 25% of the Class Member’s Track A Liquidated Award and 25% of the principal amount of the Class Member’s Track A Loan Award, if applicable. A “Provisional” Track A Tax Award refers to the amount specified in Part V of a Track A Determination Form. A “Final” Track A Tax Award refers to the amount specified in Part III of a Track A Determination Form. Track A Tax Awards are subject to reduction based on the amount of available funds and number of meritorious claims.
OO. “Track B Award” is the amount of actual damages, up to $250,000, for which the Track B Neutral determines that a Class Member is eligible under the applicable standards for Track B. A “Provisional” Track B Award refers to the amount specified in Part V of a Track B Determination Form. A “Final” Track B Award refers to the amount specified in Part III of a Track B Determination Form. Track B Awards are subject to reductions based on the amount of available funds and number of meritorious claims.
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PP. “Track B Cap” is $100,000,000.
QQ. “Track B Fee” is a fee negotiated between a Claimant and his or her Counsel, whether Class Counsel or Individual Counsel, subject to a cap set by the Court, which the Claimant agrees to pay if he or she obtains a Track B Award and which Counsel agrees to accept in full satisfaction for the fees, expenses, or costs associated with work performed on behalf of the individual Claimant in obtaining that Award.
RR. “Track B Neutral” is an adjudicator hired by Lead Class Counsel and approved by the Court, the Secretary, and the Attorney General to determine the merits of the claims submitted under Track B. Prior to determining any claims, each Track B Neutral must take an oath administered by the Court that he or she will determine each claim faithfully, fairly, and to the best of his or her ability.
SS. The “United States” is, individually and collectively, the Executive Branch of the United States, its agencies, instrumentalities, agents, officers, and employees.
III. THE SETTLEMENT CLASS
A. The Parties agree, for purposes of this Agreement only, to the following Federal Rule of Civil Procedure 23(b)(1), non-opt-out class:
All individuals: (1) who submitted Late-Filing Requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree.
Where used in this Agreement, the “Class” refers, individually and collectively, to the Class Representatives, the Class, and each Member of the Class as well as their heirs, administrators, personal representatives, successors, and/or assigns.
B. In accordance with the terms of this Agreement, the Signatory Plaintiffs will move for certification of this Settlement Class, for appointment of some of the Signatory Plaintiffs as the Class Representatives, for appointment of Class Counsel, and for designation of specific counsel from among Class Counsel to serve as Lead Class Counsel and members of the Plaintiffs’ Steering Committee.
IV. DISMISSAL AND FUNDING
A. The Class agrees to the dismissal of all actions pending in the Consolidated Case with prejudice under Federal Rules of Civil Procedure 41(a)(1) and 23(e). In 9

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accordance with the terms of this Agreement, the Signatory Plaintiffs will move for dismissal, with prejudice, of all actions pending in the Consolidated Case, to be effective on the Final Approval Date. Notwithstanding such dismissal, the Court shall retain continuing jurisdiction to oversee and enforce this Agreement.
B. Class Counsel shall, within seven (7) calendar days of the Preliminary Approval Date, notify the Secretary and the Court in writing of the identities of the Designated Account and Designated Bank.
C. Within thirty (30) calendar days of the Preliminary Approval Date, Class Counsel shall seek approval from the Court for a disbursal of up to $5,000,000 from the Designated Account for payment of Court-approved interim Implementation Costs provided for in this Agreement. Upon Court approval of this request and in accordance with the Court’s Order, the Secretary shall, within twenty (20) days of such approval, provide the U.S. Department of the Treasury with all necessary forms and documentation to direct a payment for the benefit of the Class in accordance with and subject to the following conditions:
1. The Secretary shall make this payment from the 2008 Funds;
2. The payment shall be in an amount ordered by the Court, not to exceed $5,000,000;
3. The Secretary shall direct the deposit of these funds into the Designated Account. Class Counsel shall provide the Secretary in writing with the information necessary to direct the deposit;
4. Class Counsel shall use these funds solely for Court-approved interim Implementation Costs provided for in this Agreement; and
5. Class Counsel shall provide the Secretary and the Court with quarterly written reports related to the expenditure of the funds provided in this Subsection. The quarterly reports, which may be submitted on the Quarterly Disbursement Reporting Form (Ex. E), shall identify (a) to whom Class Counsel has paid the funds, (b) the amount of such payment, (c) when the funds were paid, and (d) for what purpose the payment has been made, with reference to this Agreement.
D. If, prior to the Final Approval Date, Class Counsel determines that the amount provided in IV.C is insufficient to cover the Court-approved interim Implementation Costs, Class Counsel may submit additional written requests to the Court for up to $5,000,000 to be used for interim Implementation Costs,
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except that Class Counsel may not request more than $10,000,000 in aggregate Implementation Costs prior to the Final Approval Date. Upon Court approval of any such request and in accordance with any related Court Order, the Secretary shall, within twenty (20) days of such approval, provide the U.S. Treasury with all necessary forms and documentation to direct a payment for the benefit of the Class in accordance with and subject to the conditions in Section IV.C.
E. After the Final Approval Date, Class Counsel may submit additional written requests to the Court for additional Court-approved interim Implementation Costs and for Court-approved interim Common Benefit Fees, subject to the following conditions:
1. Class Counsel shall not make more than four requests per calendar year, shall not seek more than $5,000,000 per request, and must submit, with each request, evidence that the Designated Account has been or will be depleted; and
2. Class Counsel shall make no request that would cause the sum of interim Implementation Costs and interim Common Benefit Fees paid by the Secretary under this Agreement to exceed $20,000,000.
F. Upon Court approval of any request in Section IV.E and in accordance with any related Court Order, the Secretary shall, within twenty (20) days of such approval, provide the U.S. Department of the Treasury with all necessary forms and documentation to direct the payment of the requested funds, for the benefit of the Class, in accordance with and subject to the following conditions:
1. The Secretary shall make these payments from the 2008 Funds;
2. The total of all interim Implementation Costs and interim Common Benefit Fees under Sections IV.C, IV.D, and IV.F shall not exceed $20,000,000;
3. The Secretary shall direct the deposit of these funds into the Designated Account. Class Counsel shall provide the Secretary in writing with the information necessary to direct the deposit;
4. These funds shall be used solely for Court-approved interim Implementation Costs and Court-approved interim Common Benefit Fees provided for in this Agreement. Any Court-approved Common Benefit Fees may be paid only to those counsel who have incurred fees to date for
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work performed on behalf of the Class as a whole, including negotiation of this Agreement; and
5. Class Counsel shall provide the Secretary and the Court with quarterly written reports related to the expenditure of the funds provided in this Subsection. The quarterly reports, which may be submitted on the Quarterly Disbursement Reporting Form (Ex. E), shall identify (a) to whom Class Counsel has paid the funds, (b) the amount of such payment, (c) when the funds were paid, and (d) for what purpose the payment has been made, with reference to this Agreement. For the expenditure of interim Common Benefit Fees, the report must also identify the specific work performed to merit the payment of interim fees.
G. At any point after Preliminary Approval of the Settlement Agreement, the Court may order payment of Ombudsman Costs, as defined in Section VI.A of this Agreement. Within twenty (20) days of any such Court Order, the Secretary shall provide the U.S. Department of the Treasury with all necessary forms and documentation to direct a payment to the Designated Account for the fees and expenses of the Ombudsman, subject to the following conditions:
1. Any payment to the Ombudsman made before the Preliminary Final Accounting Date shall be paid from the 2008 Funds;
2. Any payment to the Ombudsman shall be for fees and expenses incurred or expected to be incurred in the performance of the Ombudsman’s duties under Section VI of this Agreement;
3. The Ombudsman shall provide Class Counsel, the Secretary, and the Court with quarterly written reports identifying his or her fees and expenses, as related to the expenditure of the funds provided in this Subsection.
H. Within thirty (30) days of the Preliminary Final Accounting Date or the Effective Date, whichever is later, Class Counsel shall seek approval from the Court for a payment for the benefit of the Class equal to the lesser of (1) the 2010 Funds plus any remaining 2008 Funds, or (2) the sum, as set forth in the Preliminary Final Accounting in Section V.E.7, of (a) all Final Track A Liquidated Awards, Final Track A Loan Awards, and Final Track A Tax Awards, (b) all Final Track B Awards, (c) the incurred and estimated final Implementation Costs up to the Cost Cap as approved by the Court, (d) the incurred and estimated final Ombudsman Costs approved by the Court, and (e) the Fee Award approved by the Court minus the sum of Track B Fees incurred by Track B Class Members, minus any amounts the Secretary has already paid under Sections IV.C, IV.D, IV.F, and IV.G. Within twenty (20) days of Court approval of this request and in accordance with 12

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the Court’s Order, the Secretary shall provide the U.S. Department of the Treasury with all necessary forms and documentation to direct a payment in the amount the Court approves in accordance with and subject to the following conditions:
1. The Secretary shall direct the deposit of these funds into the Designated Account. Class Counsel shall provide the Secretary in writing with the information necessary to direct the deposit;
2. These funds shall be used solely to pay (a) Final Track A Liquidated Awards, Final Track A Loan Awards, Final Track A Tax Awards, and Final Track B Awards to or on behalf of Class Members pursuant to the Non-Judicial Claims Process (Section V); (b) Common Benefit Fees approved by the Court; (c) Track B Fees; (d) reasonable and compensable Court-approved Implementation Costs; (e) reasonable and compensable Court-approved Ombudsman Costs; and (f) if applicable, any leftover funds to Cy Pres Beneficiaries, as specified in Section V.E.13 and approved by the Court; and
3. Class Counsel shall provide the Secretary and the Court with written quarterly reports related to the expenditure of the funds provided in this Subsection. The quarterly reports, which may be submitted on the Quarterly Disbursement Reporting Form (Ex. E), shall identify (a) to whom Class Counsel has paid the funds, (b) the amount of such payment, (c) when the funds were paid, and (d) for what purpose the payment has been made, with reference to this Agreement. If Class Counsel has expended funds to pay Final Track A Liquidated Awards, Final Track A Loan Awards, Final Track A Tax Awards, and Final Track B Awards during the reporting period, Class Counsel shall also identify the number of such awards.
I. Any funds other than 2008 Funds or 2010 Funds are outside the scope of this Agreement and the scope of the payment obligations of the Secretary and/or the United States under this Agreement and shall not be paid by the Secretary and/or the United States to the Class or Class Counsel under this Agreement.
J. Once the funds paid by the Secretary under this Agreement are deposited into the Designated Account, the Secretary has no liability whatsoever for the protection or safeguard of the deposited funds, regardless of bank failure, fraudulent transfers, or any other fraud or misuse of the funds.
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K. Nothing in this Agreement shall limit in any way the duties owed by Class Counsel to the Class under any applicable law, including any law governing counsel’s management or handling of client funds.
L. The funds that the Secretary pays pursuant to this Agreement are inclusive of damages and other monetary relief, attorneys’ fees, expenses, costs, tax payments, payments in recognition of outstanding FSA Farm Loan Program debt, interest, and costs, and are the only funds that will be paid by the Secretary under this Agreement.
M. Other than the funds specified in this Agreement, no other funds, including those from the Judgment Fund, 31 U.S.C. § 1304, the Commodity Credit Corporation, or from the Salaries and Expenses Account of USDA or any of its agencies shall be available for any purpose related to this Agreement, except by the Secretary for purposes of satisfying his duties under this Agreement.
N. The binding effect and implementation of this Agreement is not contingent in any way upon the provision by Congress of any funds. The Class Representatives and the Class acknowledge that Congress is not obligated to appropriate any additional funds.
O. The limitations on funding in this Agreement apply notwithstanding a determination by the Class Representatives, the Class, or Class Counsel that the funds made available under this Agreement are inadequate to pay claims submitted pursuant to the Non-Judicial Claims Process (Section V), attorneys’ fees, expenses, and costs incurred under this Agreement, and/or Implementation Costs incurred under this Agreement.
P. The Secretary and/or the United States shall not be liable to pay the Claims Administrator, the Pigford Facilitator, the Track A Neutral, the Track B Neutral, the Ombudsman, or any of their employees and agents. Subject to the Cost Cap, all fees, costs, and expenses incurred by the Claims Administrator, the Neutrals and their employees and agents shall be paid from the Designated Account as Implementation Costs. All fees, costs, and expenses incurred by the Ombudsman shall be paid from the Designated Account as Ombudsman Costs.
Q. The Class Representatives, the Class, and/or Class Counsel may not terminate this Agreement because the Class Representatives, the Class, and/or Class Counsel assert that the Cost Cap is inadequate, and neither the Class Representatives nor Class Counsel shall be permitted to amend, alter, or reduce their obligations and duties under this Agreement in any manner. The Class Representatives and Class Counsel agree to continue with implementation of this Agreement notwithstanding the amount of Implementation Costs incurred under this 14

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Agreement. The Secretary shall have no responsibility for Implementation Costs above the Cost Cap.
R. Nothing in this Agreement shall preclude the Class, the Secretary and/or the United States from seeking additional funds from Congress for purposes of this Agreement. The Secretary and/or the United States, however, are not obligated to seek any additional funds, support any legislation, or refrain from opposing any additional funds or legislation. The binding effect and implementation of this Agreement are not contingent in any way upon the interactions between the Secretary and/or the United States and Congress.
S. The Class Members will have sole responsibility to comply with their own applicable federal, state, and local tax requirements that arise as a result of this Agreement. Class Counsel will have sole responsibility to comply with their own applicable federal, state, and local tax requirements that arise as a result of this Agreement.
V. NON-JUDICIAL CLAIMS PROCESS
To obtain relief under this Settlement, Claimants must be Class Members and have their claims determined to be meritorious under one of two tracks – (1) Track A, which tests claims against a lower “substantial evidence” standard of proof, and awards successful claimants with a liquidated payment of up to $50,000 for credit claims and/or up to $3,000 for non-credit claims, a payment in recognition of outstanding debt owed to USDA/FSA, and a payment to offset tax liability from these awards; or (2) Track B, which tests claims against a higher “preponderance of the evidence” standard of proof, and provides awards to successful Claimants in the amount of their actual damages up to $250,000, subject to the Track B Cap.
Each of these awards is subject to reduction based on the amount of available funds and the number of meritorious claims.
A. GENERAL REQUIREMENTS
1. To obtain a Claim Determination under this Agreement, a Claimant must be a Class Member and must submit a Complete Claim Package to the Claims Administrator by the Claim Deadline (180 days from the Final Approval Date). A “Complete Claim Package” must include:
a. A completed Claim Form (Ex. C), including the Claimant’s declaration, under penalty of perjury, that each of the statements provided by the Claimant is true and correct;
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b. For a Track A Claimant who seeks a Track A Loan Award, a statement that the Claimant seeks such an award and an executed Authorization to Disclose Debt Information Form (Ex. D);
c. A declaration by the Claimant’s Counsel, whether Class Counsel or Individual Counsel, made under penalty of perjury, that to the best of the attorney’s knowledge, information, and belief formed after an inquiry reasonable under the circumstances, the claim is supported by existing law and the factual contentions have evidentiary support. For Claimants proceeding without counsel, the declaration on the Claim Form (Ex. C) is sufficient to satisfy this requirement;
d. For a Claimant who is deceased, (a) a death certificate and (b) either (i) proof of legal representation, or (ii) a sworn statement describing why the submitting individual believes he or she will be appointed the legal representative of the Claimant’s estate; and
e. For a Claimant unable to submit a claim on his or her own behalf due to a physical or mental limitation, (a) proof of legal representation or (b) a sworn statement describing why the Claimant is unable to submit a claim on his or her own behalf and why the submitting individual asserts a right to do so on the Claimant’s behalf.
The submission date of the Claim Package shall be the date of postmark if the Claim Package is sent via first-class mail, the date of deposit if sent by courier or overnight delivery, and the date of transmission if sent electronically.
2. A Claimant may be represented in this Claims Process by Class Counsel or Individual Counsel, or the Claimant may submit a claim without counsel. A Track A Claimant shall be represented at no additional charge by Class Counsel, unless that Claimant elects to be represented by Individual Counsel or elects to submit a claim without counsel. For Track A, if a Claimant elects to be represented by Individual Counsel, the Claimant must make separate arrangements to pay Individual Counsel, subject to the terms of this Agreement and the cap on Track A Individual Counsel Fees set by the Court. For Track B, if a Claimant elects to be represented by either Class Counsel or Individual Counsel, the Claimant must make separate arrangements to pay Class Counsel or Individual Counsel, subject to the terms of this Agreement and the cap on Track B Fees set by the Court. An attorney who serves as Individual Counsel 16

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consents to the terms of this Agreement and agrees to abide by all orders of the Court in the Consolidated Case.
3. In the case of a Claimant who is deceased, the legal representative of the Claimant’s estate may submit a claim on the Claimant’s behalf. If there is no legal representative, any other individual who asserts a right to be the legal representative of the Claimant’s estate may submit a claim on the Claimant’s behalf. If there is no legal representative and more than one individual submits a claim on behalf of the Claimant, a Track A Neutral or Track B Neutral designated by the Claims Administrator shall decide which of the individuals is entitled to pursue the claim on the Claimant’s behalf. If the Claimant prevails, and a legal representative for the Claimant’s estate has not yet been appointed, the Claimant’s award shall be held for up to one year in a separate account established by Class Counsel for the benefit of the estate until a legal representative to whom the funds may be disbursed is appointed. The Claims Administrator may extend this period upon receipt of proof that a probate petition is pending in the appropriate Court.
4. In the case of a Claimant who is unable to submit a claim on his or her own behalf due to a physical or mental limitation, the Claimant’s legal representative may submit a claim on the Claimant’s behalf. If there is no legal representative, any other individual who asserts a right to be the legal representative may submit a claim on the Claimant’s behalf. If there is no legal representative and more than one individual submits a claim on behalf of an individual who is unable to submit a claim on his or her own behalf, a Track A Neutral or Track B Neutral designated by the Claims Administrator shall decide which of the individuals is entitled to pursue the claim on the Claimant’s behalf. If the Claimant prevails, and a legal representative for the Claimant has not yet been appointed, the Claimant’s award shall be held for up to one year in a separate account established by Class Counsel for the benefit of the Claimant until a legal representative for the Claimant to whom the funds may be disbursed is appointed. The Claims Administrator may extend this period upon receipt of proof that a petition for appointment of a legal representative for the Claimant is pending in the appropriate Court.
5. A Claimant who has an interest in more than one farming operation may file a claim on behalf of more than one farming operation. However, in such a situation, the Claims Administrator will not distribute to the Claimant more than the maximum liquidated damages recovery established by Section II.LL above regardless of the number of farming operations in which discrimination is found to have occurred. To the
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extent that Multiple Claimants operating a single farming operation file separate claims, the Neutral shall consider all such claims together and shall make no more than one Track A Liquidated Award or Track B Award per farming operation. Any award made for a farming operation for which Multiple Claimants have filed multiple claims shall be distributed pro rata to each of the claimants the Neutral determines to be legitimate, provided that the Neutral may allocate such an award on a basis other than pro rata if one or more of such multiple claimants presents compelling evidence to justify an alternative allocation. Loan Awards may be made to Multiple Claimants for a single farming operation if the Neutral determines that such claimants have loans that are eligible for such an award.
6. A Claimant’s election of Track A is irrevocable and exclusive. A Claimant’s election of Track B is irrevocable and exclusive, except as provided in Section V.B.7.
7. Claimants whose claims arise under non-credit benefit programs are required to proceed under Track A.
8. The Class Membership Determinations, Claim Determinations, and any other determinations made under this Section are final and are not reviewable by the Claims Administrator, the Track A Neutral, the Track B Neutral, the Court, or any other party or body, judicial or otherwise. The Class Representatives and the Class agree to forever and finally waive any right to seek review of the Class Membership Determinations, the Claim Determinations, and any other determinations made under this Section.
9. Except as specified in Section V.B.6, the Secretary and/or the United States shall have no role in the non-judicial claims process provided in this Section.
10. The Secretary and/or the United States shall not be liable to pay any Claim Determinations, any Track A Liquidated Awards, Track A Loan Awards, Track A Tax Awards, Track B Awards, or discharge or otherwise satisfy any debt except as provided in Section V.A.12. All Track A Liquidated Awards, Track A Loan Awards, Track A Tax Awards, and Track B Awards shall be paid from the Designated Account.
11. The Secretary and/or the United States shall have no obligation to provide any information, documents, or discovery to the Class, Class Members, or Class Counsel, except as provided in Section V.B.6.
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12. The Claims Administrator will make Track A Loan Awards and Track A Tax Awards directly to FSA (for Track A Loan Awards) and the Internal Revenue Service (for Track A Tax Awards) on each prevailing Class Member’s behalf and not to the prevailing Class Member. If a Track A Loan Award provided by the Claims Administrator to FSA to reduce or discharge outstanding Farm Loan Program loans held by a prevailing Class Member does not discharge or otherwise satisfy the Class Member’s debt in full, interest will continue to accrue unless and until the Class Member repays the loan in full. Subject to the limitations in Section VII, FSA will maintain all available options for servicing and recovering all Farm Loan Program debt from the Class Member, including, but not limited to, acceleration and foreclosure in accordance with the governing regulations.
13. The Claims Administrator shall send all correspondence and all payments to Claimants, Class Members, and/or their Counsel by first-class mail, postage prepaid.
14. Class Counsel, the Claims Administrator, the Ombudsman, and the Neutrals shall take reasonable steps to protect private personal and financial information submitted to them under this Agreement.
15. The Claims Administrator and the Track A and B Neutrals shall report periodically to Lead Class Counsel and the Ombudsman any issues of concern that arise in the course of the execution of their duties.
B. REVIEW OF THE CLAIM SUBMISSION AND THE CLASS MEMBERSHIP DETERMINATION
1. Upon receipt of a claim, the Claims Administrator shall first assign the claim a unique Claim Identification Number and then determine whether the Claimant’s submission satisfies the Claim Deadline and whether the submission is a Complete Claim Package. The Claims Administrator shall make every reasonable effort to complete this determination within ten (10) days of receipt of the claim.
2. For each Claimant who has submitted an incomplete Claim Package or for each Claim Package that the Claims Administrator is unable to determine whether it is complete or timely, the Claims Administrator shall send to the Claimant and his or her Counsel a completed Your Claim Package is Not Complete Form (Ex. F). A Claimant shall have thirty (30) calendar days from the date of postmark of such a Form to submit, either by firstclass mail, postage prepaid, or electronically, a Complete Claim Package. 19

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There shall be no exceptions to or extensions of the time frames set forth in this paragraph, and the failure of a Claimant to provide any requested materials within the specified time frames will result in that Claimant obtaining a final and unreviewable adverse determination.
3. For each Claimant whose claim is untimely submitted, the Claims Administrator shall return the Claim Package to the Claimant and his or her Counsel with a completed You Have Not Submitted Your Claim On Time Form (Ex. G). This determination is final and not reviewable by the Claims Administrator, the Track A Neutral, the Track B Neutral, the Court, or any other party or body, judicial or otherwise.
4. For each Claimant determined by the Claims Administrator to have submitted a timely and Complete Claim Package, the Claims Administrator shall determine whether the Claimant is a Class Member. To make this determination, the Claims Administrator shall determine whether the Class Member has established, by a preponderance of the evidence, that:
a. The Claimant submitted a Late-Filing Request under Section 5(g) of the Pigford Consent Decree on or after October 13, 1999, and on or before June 18, 2008. For purposes of this determination, the Claims Administrator shall review the Pigford Timely 5(g) List. If a Claimant appears on the Pigford Timely 5(g) List, the Claimant will be deemed to have submitted a Late-Filing Request. If the Claimant is not on the Pigford Timely 5(g) List, the Claimant must establish with independent documentary evidence that he or she submitted a Late-Filing Request. A tracking number given to a Claimant in Pigford or a list maintained by the Pigford Facilitator other than the Timely 5(g) List are insufficient, on their own, to constitute independent documentary evidence for this purpose. The Claims Administrator shall make this determination by examining the documents, if any, provided by Class Counsel and the documents submitted by the Claimant as part of his or her claim; and
b. The Claimant has not obtained a determination on the merits of his or her discrimination complaint, as defined by Section 1(h) of the Pigford Consent Decree. For purposes of this determination, the Claims Administrator shall review the Pigford Participants List and the Pigford Opt-Out List. If a Claimant (a) appears on either of these Lists, or (b) has obtained a judgment from a judicial or administrative forum on the basis of the race discrimination claim 20

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that provides the basis of the Claimant’s discrimination complaint, that Claimant will be deemed to have obtained a determination on the merits of his or her discrimination claim. If the Claims Administrator determines, at any time prior to paying a Claimant under this Agreement, that the Claimant already has obtained a determination on the merits of his or her discrimination complaint, the Claims Administrator shall not make any payments to the Claimant.
5. For each Claimant who the Claims Administrator determines is not a Class Member, the Claims Administrator shall complete a You Are Not a Class Member Form (Ex. H) and send the Form to the Claimant and his or her counsel. This determination is final and not reviewable by the Claims Administrator, the Track A Neutral, the Track B Neutral, the Court, or any other party or body, judicial or otherwise.
6. For each Claimant who the Claims Administrator determines to be a Class Member and who elects Track A, the Claims Administrator shall complete Parts I and VI of a Track A Claim Determination Form (Ex. A) and send the Form and the Class Member’s claim electronically to the Track A Neutral. If the Class Member seeks a Track A Loan Award and has submitted an Authorization to Disclose Debt Information Form (Ex. D), the Claims Administrator shall request that FSA confirm whether the Class Member has an outstanding Farm Loan Program loan(s) and provide the applicable loan(s) balance(s) and loan payoff amount(s). In order to make this request, the Claims Administrator must complete the Authorization to Disclose Debt Information Form received from the Class Member and send it, along with the Class Member’s completed Claim Form, to FSA. Within sixty (60) calendar days of receipt of the request or as soon thereafter as is practicable, FSA will return the Authorization to Disclose Debt Information Form to the Claims Administrator with the requested information. The payoff amount will be as of a date certain with a daily interest accrual note. Interest will continue to accrue until the account is paid in full. The Claims Administrator shall submit the completed Authorization to Disclose Debt Information Form to the Track A Neutral reviewing the Class Member’s Claim, the Class Member, and the Class Member’s Counsel.
7. Within ten (10) days after the Claim Deadline, for each Claimant who the Claims Administrator determines to be a Class Member and who elects Track B, the Claims Administrator shall send the Class Member a notice in writing informing the Class Member of the total number of Class Members who submitted Complete Claims Packages under Track B by the
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Claim Deadline. Such notification shall also remind each Class Member of: (a) the definition of Track B Awards; (b) the Track B Cap; and (c) the possibility that a Class Member’s Track B Award will be reduced if the total of all Track B Awards exceeds the Track B Cap. Such notification shall inform the Class Member that the Class Member may change his or her election to Track A by so notifying the Claims Administrator in writing within thirty (30) days of the postmark of the notification. If a Track B Class Member does not so notify the Claims Administrator, his or her claim shall be treated as a Track B claim.
8. For each Claimant who the Claims Administrator determines to be a Class Member and who elects Track B under Section V.B.7, the Claims Administrator shall complete Parts I and VI of a Track B Claim Determination Form (Ex. B) and send the Form and the Class Member’s claim electronically to the Track B Neutral.
9. For each Claimant who the Claims Administrator determines to be a Class Member and who elects Track A under Section V.B.7, the Claims Administrator shall follow the procedure in Section V.B.6.
10. The Claims Administrator shall make every reasonable effort to complete the Class Membership Determination and complete his or her other duties under this Section within sixty (60) days of receipt of a Complete Claim Package.
C. TRACK A
1. For each Class Member asserting a claim under Track A, the Track A Neutral shall determine whether the Class Member has established, by substantial evidence, each of the following elements:
a. The Class Member is an African-American who farmed, or attempted to farm, between January 1, 1981, and December 31, 1996;
b. The Class Member owned or leased, or attempted to own or lease, farm land;
c. The Class Member applied, or constructively applied, for a specific farm credit transaction(s) or non-credit benefit(s) at a USDA office between January 1, 1981, and December 31, 1996;
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d. For claimants who applied -- i.e., not constructively applied -- for a specific farm credit transaction(s) or non-credit benefit(s), the farm loan(s) or non-credit benefit(s) for which the Class Member applied was denied, provided late, approved for a lesser amount than requested, encumbered by a restrictive condition(s), or USDA failed to provide an appropriate loan service(s);
e. USDA’s treatment of the loan or non-credit benefit application(s) or constructive application(s) led to economic damage to the Class Member; and
f. The Class Member complained of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of him or her in response to the application(s).
“Substantial evidence” is such evidence that a reasonable person might accept as adequate to support a conclusion after taking into account other evidence in the record that fairly detracts from that conclusion. Substantial evidence is a lower standard of proof than a preponderance of the evidence.
2. For each Class Member who asserts that he or she “constructively applied” for a loan or non-credit benefit in order to satisfy Section V.C.1.c, the Track A Neutral must make an additional determination that the Class Member has established, by substantial evidence, that:
a. The Class Member made a bona fide effort to apply for a loan or non-credit benefit. Such bona fide effort may be established by evidence of:
(1) the year in which the Class Member attempted to apply and the general time period within that year (e.g., late fall, early spring, sometime in January, February, or March);
(2) the type and amount of loan or non-credit benefit for which the Class Member attempted to apply;
(3) how the Class Member planned to use the funds (i.e., identification of crops, equipment, acreage, etc.); and
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(4) how the Class Member’s plans for a farm operation were consistent with farming operations in that county/area in that year; and
b. USDA actively discouraged the application. Active discouragement may be established by evidence of:
(1) statements by a USDA official that, at the time the Class Member wanted to apply, there were no funds available and therefore no application would be provided;
(2) statements by a USDA official that, at the time the Class Member wanted to apply, there were no application forms available; or
(3) statements by a USDA official that, at the time the Class Member wanted to apply, USDA was not accepting or processing applications.
3. The Track A Neutral’s determination shall be based solely on the materials submitted by the Class Member and, if applicable, the information provided by FSA in response to a completed Authorization to Disclose Debt Information Form.
4. If, in the Track A Neutral’s judgment, additional documentation and evidence would be necessary or helpful in deciding the merits of a particular claim, or if the adjudicator suspects fraud regarding a particular claim, the Track A Neutral may require that the Class Member provide additional documentation and evidence. A Class Member’s inability to provide the requested additional documentation or evidence shall not require a rejection of that Class Member’s claim.
5. If the Track A Neutral determines that the Class Member has satisfied the elements listed above in Sections V.C.1 and V.C.2 for a credit or noncredit claim, the Neutral shall complete Part V on the Class Member’s Track A Claim Determination Form (Ex. A). If the Track A Neutral determines that the Class Member has not satisfied the elements listed above, the Neutral shall complete Part IV of the Track A Claim Determination Form. The Neutral shall make every reasonable effort to complete this determination and send the Track A Claim Determination Form electronically to the Claims Administrator within thirty (30) calendar days of receipt of the claim or within ten (10) calendar days of
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receipt of the Authorization to Disclose Debt Information Form, whichever is later.
D. TRACK B
1. For each Class Member asserting a credit claim under Track B, the Track B Neutral shall determine whether the Class Member has established, by a preponderance of the evidence and through independent documentary evidence admissible under the Federal Rules of Evidence, each of the following elements:
a. The Class Member is an African-American who farmed, or attempted to farm, between January 1, 1981, and December 31, 1996;
b. The Class Member owned or leased, or attempted to own or lease, farm land;
c. The Class Member applied for a specific farm credit transaction(s) at a USDA office between January 1, 1981, and December 31, 1996. Constructive application is insufficient;
d. The farm loan(s) for which the Class Member applied was denied, provided late, approved for a lesser amount than requested, encumbered by a restrictive condition(s), or USDA failed to provide an appropriate loan service(s);
e. The treatment of the Class Member’s loan application(s) by USDA was less favorable than that accorded a specifically identified, similarly situated white farmer(s);
f. USDA’s treatment of the loan application(s) led to economic damage to the Class Member; and
g. The Class Member complained of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of him or her in response to the application(s).
A “preponderance of the evidence” is such relevant evidence as is necessary to prove something is more likely true than not true.
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2. Notwithstanding the requirement that each element in Track B be established by a preponderance of the evidence and with independent documentary evidence admissible under the Federal Rules of Evidence,
a. Sections V.D.1.e and V.D.1.g may be established by a preponderance of the evidence and with a sworn statement based on personal knowledge by an individual who is not a member of the Class Member’s family;
b. The Class Member’s loan application and supporting documents forming the basis of the Class Member’s claim are deemed admissible under the Federal Rules of Evidence upon a sworn statement by the Class Member that the loan application and supporting documents were submitted to FSA contemporaneously to the date of the complete application. FSA documents that were provided to the Class Member in response to the Class Member’s loan application are also deemed admissible under the Federal Rules of Evidence upon a sworn statement by the Class Member that the Class Member received the FSA documents in response to the Class Member’s loan application contemporaneously to the date of the response; and
c. Nothing in this Section precludes a Class Member from submitting expert testimony to explain the independent documentary evidence submitted by the Class Member with respect to Section V.D.1.f.
3. Once the Class Member has submitted independent documentary evidence admissible under the Federal Rules of Evidence or evidence as provided for above in Section V.D.2 on each element, the Track B Neutral may consider the materials submitted by the Class Member and any other information or material deemed appropriate for consideration by the Track B Neutral.
4. If, in the Track B Neutral’s judgment, additional documentation and evidence would be necessary or helpful in deciding the merits of a particular claim, or if the adjudicator suspects fraud regarding a particular claim, the Track B Neutral may require that the Class Member provide additional documentation and evidence. A Class Member’s inability to provide the requested additional documentation or evidence shall not require a rejection of that Class Member’s claim.
5. If the Track B Neutral determines that the Class Member has satisfied the elements listed in Section V.D.1 above, the Neutral shall complete Part V 26

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on the Class Member’s Track B Claim Determination Form (Ex. B). If the Track B Neutral determines that the Class Member has not satisfied the elements listed above, the Neutral shall complete Part IV of the Track B Claim Determination Form. The Neutral shall make every reasonable effort to complete this determination and send the Track B Claim Determination Form electronically to the Claims Administrator within sixty (60) calendar days of receipt of the claim.
E. DISTRIBUTION OF CLAIM DETERMINATIONS AND SETTLEMENT FUNDS
1. Within thirty (30) days of the Claims Administrator’s receipt of a Track A or Track B Claim Determination Form (Exs. A or B) for a denied claim, the Claims Administrator shall complete Parts I, II, and IV of the applicable Claim Determination Form and send the completed Claim Determination Form to the non-prevailing Class Member and his or her counsel, and to Lead Class Counsel.
2. Within thirty (30) days of the Claims Administrator’s receipt of a Track A or Track B Claim Determination Form (Exs. A or B) for a prevailing claim, the Claims Administrator shall send a letter in the form of Exhibit J to the prevailing Class Member and his or her counsel, and to the Lead Class Counsel.
3. On a quarterly basis, the Claims Administrator shall provide to the Secretary and Lead Class Counsel a written report, which may be provided on the USDA Quarterly Payment Reporting Form (Ex. I), that includes: (a) the name, address, and Social Security or Taxpayer Identification Number of each Class Member who has completed the claims process; (b) the Class Member’s FSA Account Number, if applicable, and (c) the status of the Class Member’s claim.
4. Within thirty (30) calendar days of receipt of all Track A and Track B Claim Determination Forms (Exs. A and B), the Claims Administrator shall calculate: (a) the sum of all Provisional Track A Liquidated Awards, Provisional Track A Loan Awards, and Provisional Track A Tax Awards, as shown on Part V of the Track A Claim Determination Forms (Ex. A); (b) the sum of all Provisional Track B Awards, as shown on Part V of the Track B Claim Determination Forms (Ex. B); (c) the sum of all Final Track A Liquidated Awards, Final Track A Loan Awards, Final Track A Tax Awards, and Final Track B Awards, as calculated in Appendix 1; (d) the Implementation Costs incurred to date; (e) a good faith estimate of Implementation Costs necessary for the Claims Administrator to perform 27

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its final duties under this Agreement; (f) the Ombudsman Costs incurred to date; (g) a good faith estimate of the Ombudsman Costs necessary for the Ombudsman to perform his or her final duties under this Agreement; (h) the amount of the Fee Award; (i) the sum of Track B Fees incurred by Track B Class Members, as calculated in Appendix 1.
5. CALCULATION OF AWARDS – Final Awards for each Claimant shall be calculated in accordance with the procedure delineated in Appendix 1. The following is a summary of Appendix 1: To calculate a Claimant’s Final Award, each Claimant’s Provisional Award may be subject to the following reductions:
a. The first reduction involves Track B Awards. If the total amount of Track B Awards exceeds the Track B Cap, all Track B Awards are reduced proportionately until their sum equals the Track B Cap. If the sum of all Track B Awards is under the Track B Cap, no reduction is applied.
b. The next reduction involves Class Members who submitted LateFiling Requests in Pigford after September 15, 2000. If, after making the reduction in subsection (a), the amount of the funds available to pay the prevailing Class Members is insufficient to fully pay Track A Awards and Track B Awards, the awards for those claimants who submitted Late-Filing Requests in Pigford after September 15, 2000 will be reduced by up to 30%. If, after making the reduction in subsection (a), the amount of the funds available to pay the prevailing Class members is sufficient to fully pay Track A Awards and Track B Awards, no reduction is applied.
c. The final reduction involves all Class Members. If, after making the reductions in subsections (a) and (b), the amount of the funds available to pay the prevailing Class Members is still insufficient to fully pay Track A Awards and Track B Awards, all Class Members will have their awards proportionally reduced until the total of all awards equals the amount of funds available.
6. The Claims Administrator shall record the Final Awards and the Final Track B Fees in Parts II and III of the prevailing Class Members’ Track A and Track B Claim Determination Forms (Exs. A and B). The Claims Administrator shall then remove Parts V and VI from the Determination Forms.
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7. Within thirty (30) calendar days of receipt of all Track A and Track B Claim Determination Forms (Exs. A and B), the Claims Administrator shall prepare the Preliminary Final Accounting and submit it to Lead Class Counsel, the Secretary and the Court. The Preliminary Final Accounting shall identify: (1) the number and amount of all Final Track A Liquidated Awards, Final Track A Loan Awards, Final Track A Tax Awards, and Final Track B Awards (shown in Part III of the completed Track A and Track B Determination Forms); (2) the Implementation Costs incurred to date; (3) a good faith estimate of Implementation Costs necessary for the Claims Administrator to perform its final duties under this Agreement; (4) the Ombudsman Costs incurred to date; (5) a good faith estimate of Ombudsman Costs necessary for the Ombudsman to perform its final duties under this Agreement; (6) the amount of the Fee Award; (7) the sum of Track B Fees incurred by Track B Class Members, and (8) the amounts that the Secretary already has paid for interim Implementation Costs, interim Common Benefit Fees, and Ombudsman Costs, and the status of these funds.
8. Within thirty (30) calendar days of the date that the Secretary makes the payment specified in Section IV.H, the Claims Administrator shall:
a. Send to each prevailing Track A Class Member who retained Class Counsel or proceeded without counsel the Class Member’s Track A Claim Determination Form (Ex. A) (without Parts V and VI) and a check payable to the Class Member in the amount of the Class Member’s Final Track A Liquidated Award. The Claims Administrator shall also send to the Individual Counsel for each Track A Class Member who retained Individual Counsel the Class Member’s Track A Claim Determination Form (Ex. A) (without Parts V and VI) and a check jointly payable to the Class Member and his or her Individual Counsel in the amount of the Final Track A Liquidated Award. The Claims Administrator shall also send to each prevailing Track B Class Member the Class Member’s Track B Claim Determination Form (Ex. B) (without Parts V and VI) and a check payable to the Class Member in the amount of the Final Track B Award, minus the Class Member’s Final Track B Fee.
b. Send, on behalf of each prevailing Track A Class Member: (a) to the Internal Revenue Service (IRS), the amount of the Class Member’s Final Track A Tax Award; and (b) to FSA, the amount of the Class Member’s Final Track A Loan Award. The Claims Administrator shall provide the Class Member’s counsel, or the Class Member directly if the Class Member has no counsel, notice
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that such payment(s) has been made. When transmitting payments for Track A Loan Awards to FSA, the Claims Administrator shall provide FSA with the name, address, and Social Security or Taxpayer Identification Number of the Class Member on whose behalf the payment is being made as well as the FSA Account Number of the loan to which the credit should be made.
c. Send a check to the counsel for each prevailing Track B Class Member in the amount of that Class Member’s Final Track B Fee.
9. Within thirty (30) calendar days of the date that the Secretary makes the payment specified in Section IV.H, the Claims Administrator shall cause to be paid from the Designated Account any outstanding Implementation Costs and Ombudsman Costs approved by the Court.
10. Within thirty (30) calendar days of the date that the Secretary makes the payment specified in Section IV.H and upon approval by the Court, the Claims Administrator shall pay Common Benefit Fees to Class Counsel equal to the Fee Award minus the sum of Track B Fees the Claims Administrator caused to be paid and minus any interim Common Benefit Fees already paid.
11. All checks distributed under this Section will be valid for 180 calendar days from the date of issue. The funds corresponding to any check that remains uncashed 181 calendar days from its date of issue shall remain in the Designated Account if Appendix 1 Section I.A.3 applies, shall be distributed pro rata to all prevailing Class Members if Appendix 1 Section I.A.4.a.(1) applies, or shall be distributed pro rata to the prevailing Class Members subject to the 30% reduction if Appendix 1 Section I.A.4.a.(2) applies. The Claims Administrator shall send a check made payable to the Class Member in the amount of the pro rata distribution, if applicable. These checks will be valid for 180 calendar days from the date of issue. Notwithstanding any other provision, no Class Member shall receive a total of more than his or her Provisional Track A Award or Track B Award.
12. If a Class Member who is deceased or was unable to submit a claim on his or her own behalf due to a physical or mental limitation prevails, and a legal representative has not yet been appointed for the Class Member, the funds payable to the Class Member shall be held for up to one year in a separate account established by Class Counsel for the benefit of the Class Member until a legal representative for the Class Member to whom the funds may be disbursed is appointed. The Claims Administrator may 30

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extend this period upon receipt of proof that a petition for appointment of a legal representative for the Class Member is pending in the appropriate court.
13. In the event there is a balance remaining in the Designated Account after the last check has been cashed, the last check has been invalidated due to passage of time, and after the passage of time set forth in Section V.E.12, Class Counsel may then move the Court to designate “Cy Pres Beneficiaries.” A “Cy Pres Beneficiary” must be a non-profit organization, other than a law firm, legal services entity, or educational institution that has provided agricultural, business assistance, or advocacy services, including assistance under Pigford and the Consolidated Case, to African American farmers between 1981 and the Execution Date. Each Cy Pres Beneficiary designated by the Court shall receive equal shares of the balance remaining in the Designated Account. The Claims Administrator shall send to each Cy Pres Beneficiary, via first class mail, postage prepaid, a check in the amount of the Beneficiary’s share.
F. Within 200 calendar days of making all payments set forth in this Section, the Claims Administrator shall prepare the “Final Accounting” and submit it to Lead Class Counsel, the Secretary, the Attorney General, and the Inspector General of the Department of Agriculture. The “Final Accounting” is an accounting prepared and signed by the Claims Administrator after all funds in the Designated Account have been disbursed. The Final Accounting shall identify: (1) the number and amount of all awards the Claims Administrator has caused to be paid to Class Members, to FSA, and to the Internal Revenue Service; (2) the Implementation Costs incurred under the Agreement; (3) the Ombudsman Costs incurred under the Agreement; (4) the amount the Claims Administrator caused to be paid in Common Benefit Fees; (5) the sum of Track B Fees the Claims Administrator caused to be paid; and (6) the amount of any leftover funds paid to Cy Pres Beneficiaries. The Final Accounting shall also identify the total amount of funds the Secretary has provided under this Agreement and the status of these funds.
G. For purposes of conducting the performance audit prescribed in Section 201(h)(2) of Pub. L. 111-291 based on a statistical sampling of adjudicated claims relating to this Agreement, the Inspector General of the Department of Agriculture shall have access, upon request, to the Claims Administrator, the Track A Neutral, and the Track B Neutral, and to any information and records generated, used, or received by them, including but not limited to names and addresses.
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VI. OMBUDSMAN
A. The Court may appoint an independent Ombudsman, who shall report directly to the Court. The Ombudsman shall not be removed except for good cause and shall serve for as long as the Court has continuing jurisdiction to enforce the Settlement Agreement. The Ombudsman's fees, costs, and expenses (“Ombudsman Costs”) shall be paid separately from Implementation Costs, from the Designated Account, upon Court approval.
B. The Ombudsman shall:
1. Be available to Class Members and the public through a toll-free telephone number in order to address concerns about implementation of this Settlement Agreement;
2. Attempt to address any concerns or questions that any Class Member may have with respect to the implementation of this Settlement Agreement;
3. Make periodic written reports (not less than every six months) to the Court, the Secretary, and Class Counsel on the good faith implementation of this Settlement Agreement;
4. Have access to the records maintained by the Claims Administrator and the Neutrals involved in the claims process; and
5. Make recommendations to the Court relating to the implementation of this Settlement Agreement.
C. The Ombudsman shall not have the power to alter in any way substantive claims decisions made by the Neutrals or the Claims Administrator, nor shall the Ombudsman have the power to direct the Secretary and/or the United States to take any actions pursuant to this Settlement Agreement.
VII. ACCELERATIONS AND FORECLOSURES
A. The Secretary agrees to refrain from accelerating or foreclosing any FSA Farm Loan Program loan held by a Class Member that originated between January 1, 1981, and December 31, 1996, until the quarterly report provided in Section V.E.3 reports that the Class Member is not eligible for a Track A Award or a Track B Award under Section V.C.5 or V.D.5.
B. This Section does not: 32

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1. Prohibit the Secretary from taking any action up to, but not including, acceleration or foreclosure that is necessary to protect his interests or service a loan under applicable law; or
2. Apply to a loan that is the subject of:
a. a judicial proceeding in which the United States is a party pending as of the Execution Date, or
b. a non-judicial foreclosure proceeding initiated under state law by or on behalf of the United States pending as of the Execution Date.
VIII. THE DUTIES OF CLASS COUNSEL
A. Class Counsel, under the direction of Lead Class Counsel, shall:
1. Perform all duties set forth in Federal Rule of Civil Procedure 23, those ordered by the Court, and those provided for in this Agreement;
2. Provide representation without additional charge to Claimants who elect to submit claims under Track A;
3. Obtain from the Pigford Facilitator (a) a current version of the Pigford Timely 5(g) List, (b) copies of all late-filing requests, (c) all other available information and correspondence regarding the late-filing status of Class Members, including any lists prepared by the Pigford Facilitator reflecting such status, (d) the Pigford Participants List, and (e) the Pigford Opt-Out List. Lead Class Counsel shall make these materials available to the Claims Administrator and the Track A and B Neutrals. This information shall be subject to any existing or future protective orders of the Court;
4. Upon request by a Claimant or Individual Counsel representing a Claimant and after proof of compliance with any existing or future protective orders of the Court, provide to such Individual Counsel or Claimant verification of the Claimant’s presence on the most recent Pigford Timely 5(g) List, Pigford Participants List, and Pigford Opt-Out List in Class Counsel’s possession as well as copies of any of the communications or information in Class Counsel’s possession that refer or relate to the Claimant on whose behalf the request is made;
5. Provide the Court-approved Notice of this Agreement to Class Members;
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6. Answer Class Member questions and respond to issues raised by the Ombudsman;
7. Provide information to Class Members regarding the status of claims processing or the distribution of the funds provided under this Agreement; and
8. Perform other such duties as may be incidental to proper coordination of this Agreement. Class Counsel shall have no obligation to perform any legal work for any Class Member related to the probate of a Class Member’s estate, including the appointment of executors or legal representatives.
B. Lead Class Counsel shall be responsible for general coordination and direction of the activities of all other Class Counsel. In performing this responsibility, Lead Class Counsel shall:
1. Determine and present the position of the Class on any matters arising during Court proceedings, including any proceedings relating to class certification and the approval and implementation of this Agreement;
2. Coordinate and direct the efforts of all counsel acting on behalf of Class Members so as to assist Class Members with completing claims, provide accurate and timely information to Class Members, allocate work load to Class Counsel, and ensure that all Class Counsel assigned to represent Class Members are performing the work allocated to them. (In this regard, certain counsel who are signatories to this Settlement Agreement have agreed to share responsibility for work performed on behalf of Class Members in the percentages set forth in a Counsel Participation Agreement that will be provided to the Court with Class Counsel’s fee petition.);
3. Develop and enforce time reporting requirements for all other counsel acting on behalf of the Class and maintain a database of all reported time and expenses by counsel acting on behalf of the Class;
4. Prepare and file a fee petition with the Court;
5. Subject to approval by the Court, retain and dismiss the Claims Administrator and the Track A and B Neutrals, and ensure that these administrators do not incur costs that would cause the Implementation Costs to exceed the Cost Cap;
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6. Retain and dismiss other vendors and providers as appropriate to assist in the implementation of the Agreement;
7. Direct and oversee the implementation and dissemination of notice of this Agreement to Class Members, and control or direct all communications with Class Members subject to approval and oversight by the Court if required by Federal Rule of Civil Procedure 23;
8. Develop the content of a Settlement Website (to be approved by the Court) and ensure its proper use and administration;
9. Plan, develop and conduct meetings or seminars designed to provide notice or assistance to Class Members regarding this Agreement;
10. Conduct additional or supplemental negotiations on behalf of the Class (in consultation with the Plaintiffs’ Steering Committee), if necessary;
11. Delegate specific tasks to other counsel or committees of counsel in a manner to ensure the Agreement is effectuated and adequate notice and assistance with the submission of claims is provided to Class Members;
12. Work with the Secretary’s Counsel as necessary for the conduct of this Agreement and its approval and implementation under Federal Rule of Civil Procedure 23;
13. Prepare and distribute periodic status reports and any accountings required by this Agreement to Class Members, the Court, or the Secretary as appropriate;
14. Maintain adequate time and disbursement records covering services as Lead Class Counsel and develop and enforce time reporting requirements for all other counsel acting on behalf of the Class;
15. Monitor and redirect the activities of Class Counsel to ensure that schedules are met and unnecessary expenditures of time and funds are avoided;
16. Develop procedures and methods to provide Class Members with answers to frequently asked questions, to respond to issues raised by the Ombudsman, to assist with the claims process and the distribution of funds provided under this Agreement, and to wind up the administration of this Agreement when appropriate; and
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17. Coordinate all communications among counsel working on behalf of individual Class Members (both Class Counsel and Individual Counsel), and all communications among Class Counsel acting on behalf of the Class
18. Perform other such duties as may be incidental to proper coordination of this Agreement.
C. Under the direction of Lead Class Counsel, the Plaintiffs’ Steering Committee shall assist Lead Class Counsel in the performance of their duties, including:
1. Overseeing the quality and allocation of work among Class Counsel; and
2. Performing other such duties as may be incidental to proper coordination of this Agreement.
IX. PROCEDURES GOVERNING APPROVAL OF THIS AGREEMENT
A. Within twenty (20) business days of the Execution Date, the Signatory Plaintiffs shall submit this Agreement and its Exhibits and a Motion for Preliminary Approval to the Court. The Motion shall specifically request that the Court set a hearing on the Motion and be accompanied by a proposed Preliminary Approval Order, a proposed Settlement Notice, and a proposed Settlement Notice Plan. The Motion shall specifically request that the Court:
1. Certify, for settlement purposes only, a Federal Rule of Civil Procedure 23(b)(1) limited fund, non-opt-out class as defined by this Agreement;
2. Appoint some of the Signatory Plaintiffs as Representatives for the Class pursuant to Federal Rule of Civil Procedure 23(a)(4);
3. Appoint Class Counsel pursuant to Federal Rule of Civil Procedure 23(g) and order that Class Counsel perform the duties set forth in this Agreement. Signatory Plaintiffs, in their Motion, will propose specific individuals as Class Counsel;
4. Designate Lead Class Counsel and the Plaintiffs’ Steering Committee. Signatory Plaintiffs, in their Motion, will propose specific individuals for these designations;
5. Preliminarily approve this Agreement;
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6. Approve the Signatory Plaintiffs’ selection of a Claims Administrator and Neutrals to perform the duties set forth in this Agreement within the cost controls set out in this Agreement. The Claims Administrator and the Neutrals will be designated by Signatory Plaintiffs’ Counsel prior to the date of the requested hearing on the Preliminary Approval Motion;
7. Approve the Signatory Plaintiffs’ plan for dissemination of notice of this Agreement pursuant to Federal Rule of Civil Procedure 23(e)(1);
8. For purposes of the notice to be provided to members of the Class, preliminarily determine the cap on Track A Individual Counsel Fees and the Track B Fees;
9. For purposes of the notice to be provided to members of the Class, preliminarily approve a range of Common Benefit Fees between 4.1% and 7.4% of the Fee Base;
10. Set a date and procedure by which objections from Class Members must be filed;
11. Set a date for a hearing (the “Fairness Hearing”) to consider whether the Agreement should be approved under Federal Rule of Civil Procedure 23(e);
12. Enter a Federal Rule of Civil Procedure 26(c) protective order regarding the dissemination of the personal information contained in the Pigford Participants List, the Pigford Opt-Out List, the Pigford Timely 5(g) List, and the information and correspondence maintained by the Pigford Facilitator regarding the late-filing status of Claimants; and
13. Authorize the Secretary to pay into the Designated Account the funds specified in Sections IV.C, IV.D, IV.F, and IV.G and order that the expenditure of such funds for purposes of this Agreement are a proper and consistent use of the funds, and that the Secretary shall not be liable in any other context or proceeding for these funds in the event that the Agreement becomes void or is voided.
B. The Signatory Plaintiffs shall provide the Secretary with a draft of the Motion for Preliminary Approval and accompanying exhibits ten (10) business days prior to filing such papers. .
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C. No later than three (3) business days before the Fairness Hearing, Lead Class Counsel shall file with the Court a declaration confirming compliance with the Notice procedures approved by the Court.
D. At the Fairness Hearing, the Parties will each request that the Court finally approve this Agreement pursuant to Federal Rule of Civil Procedure 23(e), order all existing retainer agreements for Section 14012 claims between prospective Class Members and their attorneys be modified to conform to the fee provisions of this Agreement; finally approve the Track A Fee Cap and Track B Fee Cap; and finally approve the distribution of any remaining funds pursuant to Section IV of this Agreement. The Parties agree to take all actions necessary to obtain approval of this Agreement.
X. ATTORNEYS’ FEES, EXPENSES, AND COSTS
A. As part of the Motion for Preliminary Approval of this Agreement, Signatory Plaintiffs will move the Court to preliminarily approve a cap on Track B Fees of 8% of a Track B Claimant’s Final Award and a cap on Track A Individual Counsel Fees of 2% of a Track A Claimant’s Final Award. As part of the Motion for Final Approval of this Agreement, Signatory Plaintiffs will move the Court to finally approve a cap on Track B Fees of 8% of a Track B Claimant’s Final Award and a cap on Track A Individual Counsel Fees of 2% of a Track A Claimant’s Final Award.
B. As part of the Motion for Preliminary Approval, Signatory Plaintiffs will move the court to preliminarily approve the range of the Fee Award, for purposes of notice to the Class, between 4.1% and 7.4% of the Fee Base. No later than sixty (60) days after the Claim Deadline, Class Counsel will move the Court to set the amount of the Fee Award, except that the amount of the Fee Award shall be at least 4.1% and not more than 7.4% of the Fee Base. Lead Class Counsel shall have sole responsibility to prepare and file a petition with the Court seeking approval of, and setting the amount for, the Fee Award prior to receiving any fees under this Agreement.
C. The Secretary reserves the right to respond to the fee petition in full and reserves the right to argue that the Fee Award should be limited to 4.1% of the Fee Base.
D. The Court’s determination of the Fee Award, the cap on Track A Individual Counsel Fees, and the cap on Track B Fees shall be conclusive, and neither the Class, nor Class Counsel, nor the Secretary shall appeal the decision.
E. Class Counsel shall be paid Common Benefit Fees for their reasonable and compensable work on behalf of the Class. The total amount of Common Benefit 38

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Fees shall equal the Fee Award minus the sum of Track B Fees the Claims Administrator caused to be paid. Class Counsel may accept interim payments of Common Benefit Fees, costs, and expenses from funds designated in Section IV.F. Certain Signatory Plaintiffs’ Counsel have entered into a Counsel Participation Agreement which reflects their agreement regarding allocation of work and distribution of fees. This Counsel Participation Agreement will be submitted to the Court with Class Counsel’s fee petition.
F. Except for the payments to the Designated Account required under Section IV, the Secretary shall not be liable to pay Class Counsel, Signatory Plaintiffs’ Counsel, or Individual Counsel any attorneys’ fees, expenses, or costs.
G. The Class Representatives, the Class, and/or Class Counsel may not terminate this Agreement because the Class Representatives, the Class, and/or Class Counsel assert that the amount of the Fee Award, the cap on Track A Individual Counsel Fees, or the cap on Track B Fees is inadequate.
H. The Class Representatives, the Class, Class Counsel, and Individual Counsel release, acquit, and forever discharge any claim that they may have against the Secretary for attorneys’ fees, expenses, or costs associated with their representation of the Signatory Plaintiffs, the Class, or any Member of the Class in the Consolidated Case or under this Agreement.
I. If a person preparing a claim on a Claimant’s behalf seeks the Claimant’s award as a representative of the Claimant’s estate, Class Counsel and Individual Counsel may, but are not required to, represent that Claimant in any probate proceedings. The fee for such probate work is outside the scope of this Agreement and is not subject to any limitation on attorneys’ fees, expenses, or costs contained within this Agreement.
XI. CONDITIONS THAT RENDER AGREEMENT VOID OR VOIDABLE
A. With the exception of Section XII,
1. This Agreement shall be voidable by the Secretary if, at any time prior to the Effective Date or the Preliminary Final Accounting Date, whichever is later, Congress appropriates additional funds such that the total of all funds appropriated for Section 14012 claims exceeds $1,250,000,000. The Secretary shall have sixty (60) calendar days from the date that this Agreement becomes voidable to notify Class Counsel that he is exercising the option to void this Agreement.
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2. This Agreement shall be void if, at any time prior to the Effective Date or Preliminary Final Accounting Date, whichever is later, Congress appropriates additional funds, from the Judgment Fund, 31 U.S.C. § 1304, or any other source, or otherwise legislates to cause the 2010 Funds to be unlimited or without a maximum cap.
3. This Agreement shall be voidable by the Secretary if, prior to the Effective Date, Congress alters or amends Section 14012 to (a) expand or contract the cause of action set forth in Section 14012(b); (b) expand or contract the group of individuals eligible to file claims under Section 14012; and/or (c) impose new burdens or obligations under Section 14012 on the Secretary and/or the United States beyond those set forth in Section 14012 as of June 18, 2008. The Secretary shall have sixty (60) calendar days from the date that this Agreement becomes voidable to notify Class Counsel that it is exercising the option to void this Agreement.
4. This Agreement shall be voidable by the Secretary or the Class if the Court does not approve this Agreement in full, including the amount of the Fee Award, or if the Court’s order granting final approval of this Agreement is reversed on appeal. The Secretary and/or the Class shall have sixty (60) calendar days from the date of such decision to notify the other party that it is exercising its option to void this Agreement.
XII. EFFECT OF AGREEMENT IF VOIDED
A. Should this Agreement become void or be voided as set forth in Section XI,
1. The Secretary will not object to reinstatement of the individual complaints dismissed under this Agreement.
2. All negotiations in connection herewith, and all statements made by the Parties at or submitted to the Court during the Fairness Hearing shall be without prejudice to the Parties to this Agreement and shall not be deemed or construed to be an admission by a Party of any fact, matter, or proposition.
3. The Secretary retains all defenses, arguments, and motions as to all claims that have been or might later be asserted in the Consolidated Case, and nothing in this Agreement shall be raised or construed by any Signatory Plaintiff, Claimant, Class Representative, Class, or Class Counsel, to defeat or limit any defenses, arguments, or motions asserted by the Secretary. Neither this Agreement, nor the fact of its having been made, nor any exhibit or other document prepared in connection with this 40

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Agreement, shall be admissible, entered into evidence, or used in any form or manner in discovery, over the objection of the Secretary in the Consolidated Case or in any other action or proceeding for any purpose whatsoever.
4. With the exception of the Release provided in Section XII.A.5 below, Signatory Plaintiffs, Claimants, and Class Members shall retain all rights, claims, causes of action, arguments, and motions as to all claims that have been or might later be asserted in the Consolidated Case, and nothing in this Agreement shall be raised by the Secretary or the Secretary’s Counsel to defeat or limit any rights, claims, causes of action, arguments, or motions asserted by any Claimants and/or the Class. With the exception of the Release provided in Section XII.A.5 below, neither this Agreement, nor the fact of its having been made, nor any exhibit or other document prepared in connection with this Agreement, shall be admissible, entered into evidence, or used in any form or manner in discovery, over the objection of any Signatory Plaintiffs, Claimants, and/or the Class in the Consolidated Case or in any other action or proceeding for any purpose whatsoever.
5. The Signatory Plaintiffs hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE the United States and the Secretary from, and are hereby FOREVER BARRED and PRECLUDED from prosecuting, any and all claims, causes of action, or requests for any monetary relief, including, but not limited to, damages, tax payments, debt relief, costs, attorneys’ fees, expenses, and/or interest that, whether presently known or unknown, related to the funds that the Secretary has paid pursuant to Sections IV.C, IV.D, IV.F, and/or IV.G. Neither the Signatory Plaintiffs nor Signatory Plaintiffs’ Counsel shall be obligated to repay any interim Implementation Costs, interim Common Benefit Fees, and/or Ombudsman Costs paid by the Secretary under Sections IV.C, IV.D, IV.F, and/or IV.G, but Signatory Plaintiffs’ Counsel who have received interim Common Benefit Fees under this Agreement agree not to seek from the United States, the Secretary, or any other source any additional fees for the work compensated by the interim fees.
XIII. RELEASES
A. The Class Representatives, the Class, and its Members and their heirs, administrators, successors, and assigns (the “Class Releasors”) hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE the United States and the Secretary (the “Government Releasees”) from, and are hereby FOREVER BARRED and PRECLUDED from prosecuting, any and all claims, causes of 41

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action, or requests for any monetary relief, including, but not limited to, damages, tax payments, debt relief, costs, attorneys’ fees, expenses, and/or interest, whether presently known or unknown, that have been or could have been asserted in the Consolidated Case by reason of, with respect to, in connection with, or which arise out of, any matters alleged in the Consolidated Case that the Class Releasors, or any of them, have against the Government Releasees, or any of them.
B. The Class Releasors hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE any and all rights they have or may have under Public Law No. 110-234 and/or 110-246, § 14012 (2008) and each of its provisions.
C. The Class Releasors hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE any and all rights they have or may have to request or obtain any information, documents, testimony, or discovery in the Consolidated Case or under § 14012 from the Government Releasees.
XIV. NO ADMISSION OF LIABILITY
A. Neither this Agreement nor any order approving it is or shall be construed as an admission by the Secretary and/or the United States of the truth of any allegation or the validity of any claim asserted in the Consolidated Case, or of the liability of the Secretary and/or the United States, nor as a concession or an admission of any fault or omission of any act or failure to act, or of any statement, written document, or report heretofore issued, filed or made by the Secretary and/or the United States, nor shall this Agreement nor any confidential papers related hereto and created for settlement purposes only, nor any of the terms of either, be offered or received as evidence of discrimination in any civil, criminal, or administrative action or proceeding, nor shall they be the subject of any discovery or construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of the Secretary and/or the United States, nor as an admission by any Party to this Agreement that the consideration to be given hereunder represents the relief which could have been recovered after trial.
B. The Secretary and the United States deny liability and damages as to each of the claims and requests for damages that were or could have been raised in the Consolidated Case, and this Agreement does not constitute, and may not be construed as, a determination or an admission of a violation of any law, rule, regulation, policy, or contract by the Secretary and/or the United States, the truth of any allegation made in the Consolidated Case, or the validity of any claim asserted in the Consolidated Case. This Agreement does not constitute, and may not be construed as, a determination or an admission that the Secretary and/or the United States is liable in this matter, that the Class or any Member is a prevailing 42

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party, that the Class or any Member was substantially justified in any claim or position, or that any claim, defense, or position of the United States was substantially unjustified.
C. Neither the determination to pay money nor the payment of money under the Non-Judicial Claims Process (Section V) shall be deemed to be a finding of fact, conclusion of law, or an admission of liability or damages by the Secretary and/or the United States, and any such determination to pay money or the payment of money under the Non-Judicial Claims Process (Section V) shall not be admissible in any civil, criminal, or administrative action or proceeding, nor shall it be construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of the Secretary and/or the United States, nor as an admission by any Party to this Agreement that the consideration to be given hereunder represents the relief which could have been recovered after trial.
D. Nothing herein shall be construed to preclude the use of this Agreement to enforce the terms thereof.
XV. CONTACT INFORMATION FOR THE SECRETARY AND FSA
A. The reports, forms, transmissions, accountings, and documentation that must or may be provided to the Secretary under this Agreement shall be sent via electronic transmission or overnight delivery to (1) Counsel of Record for the Secretary in the Consolidated Case, and (2) General Counsel, U.S. Department of Agriculture, 1400 Independence Avenue SW, Washington, DC 20250.
B. The reports, forms, transmissions, accountings, documentation, and checks that must or may be provided to FSA under this Agreement shall be sent via electronic transmission or overnight delivery to Deputy Administrator, Farm Loan Programs U.S. Department of Agriculture, Farm Service Agency, 1400 Independence Avenue SW, Washington, DC 20250, STOP 0520.
XVI. CONTINUING JURISDICTION
Notwithstanding the dismissal of claims on the Final Approval Date under Section IV.A, the Court shall retain continuing jurisdiction to oversee and enforce this Agreement until two-hundred (200) days after the date the Final Accounting in Section V.F is completed.
XVII. INTEGRATION This Agreement and its Exhibits constitute the entire agreement of the Parties, and no prior statement, representation, agreement, or understanding, oral or written, that is not contained herein, will have any force or effect.
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XVIII. MODIFICATION A. Before the Preliminary Approval Date, this Agreement, including the attached exhibits, may be modified upon written agreement of the Parties. B. After the Preliminary Approval Date, this Agreement, including the attached exhibits, may be modified only with the written agreement of the Parties and with the approval of the Court, upon such notice to the Class, if any, as the Court may require.
XIX. DUTIES CONSISTENT WITH LAW AND REGULATIONS Nothing contained in this Agreement shall impose on the Secretary any duty, obligation, or requirement, the performance of which would be inconsistent with federal statutes or federal regulations in effect at the time of such performance.
XX. DUTY TO DEFEND The Parties to this Agreement shall defend against any challenges to it in any forum.
XXI. HEADINGS The headings in this Agreement are for the convenience of the Parties only and shall not limit, expand, modify, or aid in the interpretation or construction of this Agreement.
XXII. SEVERABILITY Should any non-material provision of this Agreement be found by a court to be invalid or unenforceable, then (A) the validity of other provisions of this Agreement shall not be affected or impaired, and (B) such provisions shall be enforced to the maximum extent possible.
XXIII. COUNTERPARTS This Agreement may be executed in counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement:
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APPENDIX 1
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Calculation of Final Awards
I. Pursuant to Section V.E.5 of the Settlement Agreement, individual Track A Awards and Track B Awards are calculated as follows:
A. In order to calculate each Class Member’s Final Award(s), the Claims Administrator shall do as follows:
1. First, if the sum total of all Track B Awards exceeds the Track B Cap,
a. The Claims Administrator shall divide each Class Member’s Track B Award by the sum total of all Track B Awards to obtain that Class Member’s “Track B Percentage.”
b. Then, the Claims Administrator shall multiply each Class Member’s Track B Percentage by the Track B Cap to obtain the Class Member’s “Modified Track B Award.” The Claims Administrator shall then replace the Track B Award indicated in Part V of the Class Member’s Track B Determination Form with his or her Modified Track B Award. This Modified Track B Award shall serve as the Class Member’s “Track B Award” or “Provisional Track B Award” for purposes of this Section.
2. Next, the Claims Administrator shall calculate the Sum of Available Funds and the Sum of Awards. The Sum of Available Funds is the lesser of (a) the sum of the 2010 Funds plus the 2008 Funds, minus the difference between the Fee Award and the product of the cap on Track B Fees set by the Court in Settlement Agreement Section X.A multiplied by the Sum of Provisional Track B Awards (as modified by Appx. Section I.A.1), minus the incurred and anticipated final Implementation Costs, minus the incurred and anticipated Ombudsman Costs; or (b) the sum of all Provisional Track A Liquidated Awards, Provisional Track A Loan Awards, Provisional Track A Tax Awards, and Provisional Track B Awards, as shown on Part V of the Track A Claim Determination Forms (Ex. A). The Sum of Awards is the sum of all Provisional Track A Liquidated Awards, Provisional Track A Loan Awards, Provisional Track A Tax Awards, and Provisional Track B Awards, as shown on Part V of the Track A and Track B Claim Determination Forms (Exs. A and B).
3. If the Sum of Available Funds is equal to or exceeds the Sum of Awards, each prevailing Track A Class Member’s Final Track A Liquidated Award, if applicable, shall be equal to the Provisional Track A Liquidated Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A). Each prevailing Track A Class Member’s Final Track A Loan Award, if applicable, shall be equal to the Provisional Track A Loan Award in Part V of that Class Member’s Track A Claim Determination Form. Each prevailing Track A Class Member’s Final Track A Tax Award, if applicable, shall be equal to the Provisional Track A Tax Award in Part V of that Class Member’s Track A Claim Determination Form. Each prevailing Track B Class Member’s Final Track B
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Award, if applicable, shall be equal to the Provisional Track B Award in Part V of that Class Member’s Track B Claim Determination Form (Ex. B).
4. If the Sum of Available Funds is less than the Sum of Awards:
a. For each prevailing Class Member whose Late-Filing Request was submitted after September 15, 2000, the Claims Administrator shall reduce by 30% the Class Member’s Provisional Track A Liquidated Award, Provisional Track A Loan Award, Provisional Track A Tax Award, and Provisional Track B Award, and so modify Part V of the Class Member’s Track A or Track B Claim Determination Form. The Claims Administrator shall then recalculate the total of all Provisional Track A Awards and Provisional Track B Awards to obtain a Revised Sum of Awards.
(1) If the Revised Sum of Awards is more than the Sum of Available Funds,
(a) The Claims Administrator shall divide the Sum of Available Funds by the Revised Sum of Awards to obtain a percentage. This percentage shall be called the “Second Percentage.”
(b) Each prevailing Track A Class Member’s Revised Track A Liquidated Award, if applicable, shall be equal to the Second Percentage multiplied by the Provisional Track A Liquidated Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A). Each prevailing Track A Class Member’s Revised Track A Loan Award, if applicable, shall be equal to the Second Percentage multiplied by the Provisional Track A Loan Award in Part V of that Class Member’s Track A Claim Determination Form. Each prevailing Track A Class Member’s Revised Track A Tax Award, if applicable, shall be equal to the Second Percentage multiplied by the Provisional Track A Tax Award in Part V of that Class Member’s Track A Claim Determination Form multiplied by the Second Percentage. Each prevailing Track B Class Member’s Revised Track B Award, if applicable, shall be equal to the Second Percentage multiplied by the Provisional Track B Award in Part V of that Class Member’s Track B Claim Determination Form (Ex. B).
(2) If the Revised Sum of Awards is less than the Sum of Available Funds,
(a) First, the Claims Administrator shall subtract the Revised Sum of Awards from the Sum of Available Funds to
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determine the “Leftover Interim Reduced Funds.”
(b) Second, for each Class Member subject to the 30% reduction, the Claims Administrator shall calculate that Class Member’s “Percentage of Leftover Reduced Funds” by dividing the Class Member’s Provisional Track A or Track B Award (reduced by 30%) by the sum of all Provisional Awards subject to the 30% reduction.
(c) Third, for each Class Member subject to the 30% reduction, the Claims Administrator shall multiply the Class Member’s Percentage of Leftover Reduced Funds times the Leftover Interim Reduced Awards to obtain that Class Member’s “Leftover Funds Enhancement.”
(d) Fourth, for each Class Member subject to the 30% reduction, the Claims Administrator shall (a) divide the Class Member’s Provisional Track A Liquidated Award by the Class Member’s Provisional Track A Award to obtain the Class Member’s “Liquidated Award Percentage,” (b) divide the Class Member’s Provisional Track A Loan Award by the Class Member’s Provisional Track A Award to obtain the Class Member’s “Loan Award Percentage,” and (c) divide the Class Member’s Provisional Track A Tax Award by the Class Member’s Provisional Track A Award to obtain the Class Member’s “Tax Award Percentage.”
(e) For each Class Member subject to the 30% reduction,
(i) The Class Member’s Revised Track A Liquidated Award, if applicable, shall be equal to the sum of (1) the Class Member’s Liquidated Award Percentage multiplied by the Leftover Funds Enhancement, and (2) 70% of the Provisional Track A Liquidated Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(ii) The Class Member’s Revised Track A Loan Award, if applicable, shall be equal to the sum of (1) the Class Member’s Loan Award Percentage multiplied by the Leftover Funds Enhancement, and (2) 70% of the Provisional Track A Loan Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(iii) The Class Member’s Revised Track A Tax Award, if applicable, shall be equal to the sum of (1) the
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Class Member’s Tax Award Percentage multiplied by the Leftover Funds Enhancement, and (2) 70% of the Provisional Track A Tax Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(iv) The Class Member’s Revised Track B Award, if applicable, shall be equal to the sum of (1) the Class Member’s Leftover Funds Enhancement, and (2) 70% of the Provisional Track B Award in Part V of that Class Member’s Track B Claim Determination Form (Ex. B).
(f) For each Class Member not subject to the 30% reduction,
(i) The Class Member’s Revised Track A Liquidated Award, if applicable, shall be equal to the Provisional Track A Liquidated Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(ii) The Class Member’s Revised Track A Loan Award, if applicable, shall be equal to the Provisional Track A Loan Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(iii) The Class Member’s Revised Track A Tax Award, if applicable, shall be equal to the Provisional Track A Tax Award in Part V of that Class Member’s Track A Claim Determination Form (Ex. A).
(iv) The Class Member’s Revised Track B Award, if applicable, shall be equal to the Provisional Track B Award in Part V of that Class Member’s Track B Claim Determination Form (Ex. B).
B. Next, the Claims Administrator shall calculate the Provisional Track B Fee for each Class Member by multiplying each Class Member’s Revised Track B Award by the fee percentage indicated by the Class Member in Part IX of the Class Member’s Claim Form. The Claims Administrator shall then calculate the sum of all Provisional Track B Fees.
C. If the Claims Administrator determined that the Sum of Available Funds was less than the Sum of Awards (i.e., Revised Awards were calculated under Appx. Section I.A.4), then the Claims Administrator shall calculate the Class Member’s Final Awards as follows:
1. If the Sum of Available Funds was calculated using Appx. Section I.A.2.(a), the Claims Administrator shall divide (1) the Sum of Available Funds minus (a) the 5

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 73 of 110 difference between (i) the cap on Track B Fees set by the Court in Settlement Agreement Section X.A multiplied by the Sum of Provisional Track B Awards and (ii) all Track B Fees calculated in Appx. Section I.B by (2) the Sum of Available Funds, to obtain the “Available Funds Multiplier.” The Claims Administrator shall then calculate each Class Member’s Final Track A Liquidated Award, Final Track A Loan Award, Final Track A Tax Award, Final Track B Award, and Final Track B Fee by multiplying each Revised Award by the Available Funds Multiplier.
2. If the Sum of Available Funds was calculated using Section I.A.2.(b), the Revised Awards calculated in Appx. Section I.A.4 are the Class Members’ Final Awards, and the Provisional Track B Fee calculated in Section I.B, if applicable, is the Class Member’s Final Track B Fee.
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Appendix 1a

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SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)
EXAMPLES OF CLAIM CALCULATIONS
The following provides illustrative examples to demonstrate how variations in the number of successful Claimants may affect the amount of the payments made to successful Class Members, as determined by the procedures set forth in Appendix 1 of the Settlement Agreement. Calculation of Final Awards under the Settlement is a two-step process. First, the Claims Administrator must apply the aggregate Track B Cap to the Track B Awards. After that is done, the Claims Administrator must determine whether reductions apply to each award based on the number of successful Class Members and the availability of funds. These types of calculations are illustrated below.
I. Application of Track B Cap
Under the terms of the Settlement Agreement, successful Track B Class Members are entitled to an award equal to “the amount of [their] actual damages, up to $250,000.” However, Track B Awards, in the aggregate, are capped at $100 million. Thus, assuming the total funding appropriated by Congress for black farmer claims is $1.25 billion, the total of all Track B Awards would be capped at $100 million.
The following chart illustrates the application of the Track B Cap, as prescribed by Section I.A.1 of Appendix 1. For illustrative purposes, we assume a $100 million Track B Cap applies, and that only two uniform groups of successful Track B Claimants are entitled to awards – (1) Group B1, each member of which is eligible for a $250,000 Track B Award (based on proof of actual damages of $250,000 or more); and (2) Group B2, each member of which is eligible for a $100,000 Track B Award (based on proof of actual damages of $100,000).

Number of Successful Track B Claimants
Group B1 – 100 Claimants ($250,000 per claim) Group B2 – 500 Claimants ($100,000 per claim)

Total Amount of
Proven Claims
$75 million

Percent of Track B Award Provided After Application of Track B Cap

Adjusted Track B Award after Application of the
Track B Cap

100%

Group B1 – $250,000 per claim Group B2 – $100,000 per claim

Group B1 – 500 Claimants ($250,000 per claim) $200 million
Group B2 – 750 Claimants ($100,000 per claim)

Group B1 – $125,000 per claim 50%
Group B2 – $50,000 per claim

Group B1 – 1,000 Claimants ($250,000 per claim) $400 million
Group B2 – 1,500 Claimants ($100,000 per claim)

Group B1 – $62,500 per claim 25%
Group B2 – $25,000 per claim

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II. Calculation of Awards After Application of the Track B Cap
After application of the Track B Cap to Track B Awards, the Claims Administrator is required to calculate the Final Award for each successful Class Member based on the number of successful Class Members and the overall availability of funds. Under the Settlement, Track A Class Members are eligible to recover three categories of damages: (1) liquidated damages of $50,000 for credit claims and/or $3,000 for non-credit claims; (2) a loan award equal to the amount of outstanding debt the Class Member owes to USDA/FSA; and (3) a tax award equal to 25% of the sum of the liquidated damages award and the loan award. The Settlement makes a distinction between “Late Filers” – i.e., those Class Members who filed Late-Filing Requests in Pigford on or between October 13, 1999 and September 15, 2000 – and “Late-Late Filers” – i.e., those Class Members who filed Late-Filing Requests in Pigford on or between September 16, 2000 and June 18, 2008. To the extent that Congress does not appropriate sufficient funds to pay all Track A and Track B Class Members in full, the Settlement Agreement provides for a reduction of up to 30% in the awards for LateLate Filers. If a 30% reduction for Late-Late Filers is insufficient to bring total awards within the amount of available funds, all awards to successful Class Members – both Late Filers and Late-Late Filers – will be subject to reduction to conform the awards to the amount of available funds. The following chart illustrates the calculations prescribed by Section I.A.2-4, I.B, and I.C. of Appendix 1, based on variation in the number of successful Class Members.
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Final Awards for Track A and Track B Class Members

Number of Successful Class Members by Type
Group A1 (“Late Filers”) = 6,000 Claimants Group A2 (“Late-Late Filers”) = 1,500 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

Total Number of Successful
Class Members

Track A Late Filers
(A1) (per claim)

Amount of Awards

(With “Lower Costs”/With “Higher Costs”)

Track A

Track B

Track B

Late-Late Filers

Late Filers

Late-Late Filers

(A2)

(B1)

(B2)

(per claim)

(per claim)

(per claim)

7,800

$75,000 / $75,000 $75,000 / $75,000 $250,000 / $250,000 $250,000 / $250,000

#1

#2

#3

Scenario Scenario Scenario Scenario Scenario

Group A1 (“Late Filers”) = 9,600 Claimants Group A2 (“Late-Late Filers”) = 2,400 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

12,300

$75,000 / $75,000 $75,000 / $75,000 $250,000 / $250,000 $250,000 / $250,000

Group A1 (“Late Filers”) = 12,000 Claimants Group A2 (“Late-Late Filers”) = 3,000 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

15,300

$75,000 / $74,847 $70,410 / $52,393 $250,000 / $249,490 $234,700 / $174,643

#4

Group A1 (“Late Filers”) = 20,000 Claimants Group A2 (“Late-Late Filers”) = 5,000 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

25,300

$48,555 / $46,012 $33,989 / $32,208 $161,850 / $153,375 $113,295 / $107,363

#5

Group A1 (“Late Filers”) = 40,000 Claimants Group A2 (“Late-Late Filers”) = 10,000 Claimants Group B1 (“Late Filers”) = 200 Claimants Group B2 (“Late-Late Filers”) = 100 Claimants

50,300

$24,735 / $23,438 $17,315 / $16,406 $82,450 / $78,125 $57,715 / $54,688

The numbers used in this chart are for illustrative purposes only. The sole purpose of this chart is to show how the array of variables might affect the actual recovery of a successful claimant. Even if Congress appropriates the full $1.25 billion that has been sought to fund this settlement, the figures used in this chart should not be relied on as a predictor of how much a successful Track A Claimant will recover because that figure cannot be computed until the total number of successful claimants is established and the actual amounts of Implementation Costs, Ombudsman Costs, and attorneys’ fees are determined.
Accordingly, for illustrative purposes only, this chart assumes that (1) Congress appropriates $1.25 billion to pay successful Section 14012 Claimants; (2) all successful Track A claimants receive a total award of $75,000 (including liquidated damages, debt relief, and tax relief); and (3) all successful Track B claimants receive a total award of $250,000. From there, this chart computes a range of recoveries using different assumptions regarding the number of successful claimants and estimates for the total of Implementation Costs, Ombudsman Costs, and attorneys’ fees that would be deducted from the available settlement funds prior to the calculation and distribution of awards. For purposes of this illustrative chart, the “Lower Costs” figure assumes $15 million for Implementation Costs and Ombudsman Costs, and attorneys’ fees of 4.1%. The “Higher Costs” figure assumes $35 million for Implementation Costs and Ombudsman Costs, and attorneys’ fees of 7.4%.
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EXHIBIT A

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SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

“TRACK A” CLAIM DETERMINATION FORM

PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

PART II. SUMMARY OF CLAIM DETERMINATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)
Your Claim is APPROVED. Your Total Award is $_______. From this amount, a payment of $______ has been made on your behalf to the IRS to reduce your expected tax liability associated with this award, and a payment of $______ has been made on your behalf to USDA/FSA to reduce your outstanding Farm Loan Program debt. Enclosed with this Form is a check for the remaining $______. (See Part III)
Your Claim is DENIED. (See Part IV)

Track A Claim Determination Form – Page 1

Case 1:08-mc-00511-PLF Document 170-2
_______________________________ ______________________ Claimant’s Name (First, Middle, Last) Claimant ID Number

Filed 05/13/11 Page 80 of 110
________________________________________ Claimant’s Social Security/Taxpayer I.D. Number

PART III. EXPLANATION OF APPROVED CLAIM (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

Several months ago, you submitted a Track A claim to the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-0511 (D.D.C.). Since that time, a Neutral has determined that your claim is APPROVED. Enclosed with this Form is a check containing your award. A payment to the Internal Revenue Service (IRS) to reduce your expected tax liability associated with this award has been made on your behalf. If you obtained a Track A Loan Award, a payment to U.S. Department of Agriculture, Farm Service Agency (USDA/FSA) to reduce outstanding Farm Loan Program debt has also been made on your behalf.

Based on the materials you submitted, the following claims were APPROVED:

Track A Credit Claim

Track A Non-Credit Claim

AWARD YOU RECEIVE

TRACK A CREDIT CLAIM

Track A Liquidated Award:

$_________________

Track A Loan Award:

$_________________

Subtotal (Liquidated Award + Loan Award):

$_________________

Track A Tax Award (25% multiplied by the subtotal):

$_________________

TOTAL TRACK A CREDIT CLAIM AWARD:

$_________________

TRACK A NON-CREDIT CLAIM. TOTAL TRACK A NON-CREDIT CLAIM AWARD:

$_________________

TOTAL AWARD:

$_________________________________________

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Case 1:08-mc-00511-PLF Document 170-2
_______________________________ ______________________ Claimant’s Name (First, Middle, Last) Claimant ID Number

Filed 05/13/11 Page 81 of 110
________________________________________ Claimant’s Social Security/Taxpayer I.D. Number

PAYMENTS MADE AND MONEY YOU RECEIVE
If you received a Loan Award or a Tax Award on a Track A Credit Claim, those payments have already been made by the Claims Administrator to USDA/FSA and the IRS respectively on your behalf. The check contained herein is the remainder of your total award.
$_________________________ (Total Award)
– $_________________________ (Total Track A Loan Award Made to USDA/FSA)
– $_________________________ (Total Track A Tax Award Made to IRS)

CHECK YOU RECEIVE: $_____________________________________________

NOTE: You are responsible for compliance with all applicable federal, state, and local tax requirements that arise as a result of this award. You are encouraged to consult a tax professional if you have any questions about these requirements.
NOTE: If you received a Loan Award (debt payment) as part of your Track A Award, it is possible that the payment did not satisfy the entire amount outstanding on your USDA/FSA loan. In that event, you are responsible for paying the remainder of your outstanding debt. Interest on your debt will continue to accrue unless and until you pay your debt in full, and USDA/FSA maintains any and all options for servicing and recovering outstanding debt, including but not limited to acceleration and foreclosure.
QUESTIONS
If you have any questions, you may contact Class Counsel at [Phone]

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Case 1:08-mc-00511-PLF Document 170-2
_______________________________ ______________________ Claimant’s Name (First, Middle, Last) Claimant ID Number

Filed 05/13/11 Page 82 of 110
________________________________________ Claimant’s Social Security/Taxpayer I.D. Number

PART IV. EXPLANATION OF DENIED CLAIM (TO BE COMPLETED BY THE TRACK A NEUTRAL)

Several months ago, you submitted a Track A claim to the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-0511 (D.D.C.). Since that time, a Neutral has determined that your claim is DENIED.

Your claim is DENIED because (check all that apply):

You failed to prove that you are an African-American farmer.

You failed to prove that you farmed, or attempted to farm, between January 1, 1981, and December 31, 1996.

You failed to prove that you owned or leased, or attempted to own or lease, farm land.

You failed to prove that you applied, or constructively applied, for a specific farm credit transaction or non-credit benefit at a USDA office between January 1, 1981, and December 31, 1996.

You failed to prove that the farm loan or non-credit benefit for which you applied was denied, provided late, approved for a lesser amount than requested, encumbered by a restrictive condition, or that USDA failed to provide an appropriate loan service.

You failed to prove that USDA’s treatment of your loan or non-credit benefit application led to economic damage to you.

You failed to prove that you complained of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of you in response to your application.

THIS DECISION IS FINAL. IT IS NOT REVIEWABLE BY THE CLAIMS ADMINISTRATOR, THE TRACK A NEUTRAL,
THE TRACK B NEUTRAL, THE COURT, OR ANY OTHER PARTY OR BODY, JUDICIAL OR OTHERWISE.

IMPACT ON OUTSTANDING LOAN OBLIGATIONS: Please note that if you are not current on loan payments you owe the USDA, the Secretary of Agriculture may, in view of the denial of your claim, proceed immediately with any loan acceleration or foreclosure proceedings he believes are appropriate.

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Case 1:08-mc-00511-PLF Document 170-2
_______________________________ ______________________ Claimant’s Name (First, Middle, Last) Claimant ID Number

Filed 05/13/11 Page 83 of 110
________________________________________ Claimant’s Social Security/Taxpayer I.D. Number

PART V. PROVISIONAL AWARD FOR APPROVED CLAIMS (TO BE COMPLETED BY THE TRACK A NEUTRAL)
The Claimant is eligible for the following Track A award(s), subject to reduction:
TRACK A CREDIT CLAIM. The Track A Credit Claim is APPROVED. The Claimant is eligible for an award, subject to reduction, as follows:

Track A Liquidated Award ($50,000):
Track A Loan Award: _____________________ FSA Account Number
_____________________ FSA Account Number
_____________________ FSA Account Number
Subtotal (Liquidated Award + Loan Award):
Track A Tax Award (25% multiplied by the subtotal):

$_________________ $_________________ $_________________ $_________________ $_________________ $_________________

TOTAL TRACK A CREDIT CLAIM AWARD:

$_________________

TRACK A NON-CREDIT CLAIM. The Track A Non-Credit Claim is APPROVED. The Claimant is eligible for an award, subject to reduction, as follows:

TOTAL TRACK A NON-CREDIT CLAIM AWARD ($3,000):

$________________

TOTAL AWARD:

$_____________________________________________

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Case 1:08-mc-00511-PLF Document 170-2
_______________________________ ______________________ Claimant’s Name (First, Middle, Last) Claimant ID Number

Filed 05/13/11 Page 84 of 110
________________________________________ Claimant’s Social Security/Taxpayer I.D. Number

PART VI. DATE OF LATE-FILING REQUEST (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)
The Class Member submitted a Late-Filing Request in Pigford on or before September 15, 2000.
The Class Member submitted a Late-Filing Request in Pigford after September 15, 2000.

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EXHIBIT B

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 86 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

“TRACK B” CLAIM DETERMINATION FORM
PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

PART II. SUMMARY OF CLAIM DETERMINATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)
Your Claim is APPROVED. Your Award is $_______. From this amount, a payment of $_______ has been made on your behalf to your attorney to pay his or her fees, costs, and expenses. Enclosed with this Form is a check for the remaining $_______. (See Part III)
Your Claim is DENIED. (See Part IV)
Track B Claim Determination Form – Page 1

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 87 of 110

_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART III. EXPLANATION OF APPROVED CLAIM (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

Several months ago, you submitted a Track B claim to the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-511 (D.D.C.). Since that time, a Neutral has determined that your claim is APPROVED.

AWARD YOU RECEIVE

TOTAL AWARD: $__________________________________________________________
PAYMENTS MADE AND MONEY YOU RECEIVE Payments to your attorney are made automatically from your award. On your Claim Form, you
indicated that you and your attorney have negotiated a Track B Fee of ______% of your Track B Award. $_________________________ (Total Award)
– $_________________________ (Attorney’s Fees, Costs, and Expenses)

CHECK YOU RECEIVE: $______________________________________________________
NOTE: You are responsible for compliance with all applicable federal, state, and local tax requirements that arise as a result of this award. You are encouraged to consult a tax professional if you have any questions about these requirements.
QUESTIONS
If you have any questions, you may contact Class Counsel at [Phone].

Track B Claim Determination Form – Page 2

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 88 of 110

_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART IV. EXPLANATION OF DENIED CLAIM (TO BE COMPLETED BY THE TRACK B NEUTRAL)

Several months ago, you submitted a Track B claim to the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-511 (D.D.C.). Since that time, a Neutral has determined that your claim is DENIED.
Your claim is DENIED because (check all that apply):

You failed to prove that you are an African-American farmer.

You failed to prove that you farmed, or attempted to farm, between January 1, 1981, and December 31, 1996.

You failed to prove that you owned or leased, or attempted to own or lease, farm land.

You failed to prove that you applied for a specific farm credit transaction at a USDA office between January 1, 1981, and December 31, 1996.

You failed to prove that the farm loan for which you applied was denied, provided late, approved for a lesser amount than requested, encumbered by a restrictive condition, or that USDA failed to provide an appropriate loan service.

You failed to prove that USDA’s treatment of your loan application was less favorable than that accorded a specifically identified similarly situated white farmer.

You failed to prove that USDA’s treatment of your loan application led to economic damage to you.

You failed to prove that you complained of discrimination to an official of the United States Government on or before July 1, 1997, regarding USDA’s treatment of you in response to your application.

THIS DECISION IS FINAL. IT IS NOT REVIEWABLE BY THE CLAIMS ADMINISTRATOR, THE TRACK A NEUTRAL,
THE TRACK B NEUTRAL, THE COURT, OR ANY OTHER PARTY OR BODY, JUDICIAL OR OTHERWISE.

IMPACT ON OUTSTANDING LOAN OBLIGATIONS: Please note that if you are not current on loan payments you owe the USDA, the Secretary of Agriculture may, in view of the denial of your claim, proceed immediately with any loan acceleration or foreclosure proceedings he believes are appropriate.

Track B Claim Determination Form – Page 3

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 89 of 110

_______________________________ ______________________ ________________________________________

Claimant’s Name (First, Middle, Last) Claimant ID Number

Claimant’s Social Security/Taxpayer I.D. Number

PART V. PROVISIONAL AWARD FOR APPROVED CLAIM (TO BE COMPLETED BY THE TRACK B NEUTRAL)

The Claimant is eligible for the following Track B Award, subject to reduction:

Track B Award (actual damages up to $250,000):

$_________________ (This award may not exceed $250,000)

The Claimant’s Claim Form indicated that the Claimant negotiated the following Track B Fee with his or her counsel:

Track B Fee (%):

_________________%

PART VI. DATE OF LATE-FILING REQUEST (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

The Class Member submitted a Late-Filing Request in Pigford on or before September 15, 2000.
The Class Member submitted a Late-Filing Request in Pigford after September 15, 2000.

Track B Claim Determination Form – Page 4

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EXHIBIT C

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 91 of 110
Claim Form – Page 1 of 8

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EXHIBIT D

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 93 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

AUTHORIZATION TO DISCLOSE DEBT INFORMATION FORM

PART I. REQUEST TO UNITED STATES DEPARTMENT OF AGRICULTURE, FARM SERVICE AGENCY (USDA/FSA)

Claimant’s Last Name:

Claimant’s First Name:

Claimant’s Middle Name:

Claimant’s Suffix:

Claimant’s Full Address (including zip code):

Claimant’s Social Security/Taxpayer I.D. Number:

Address or Other Description of Farm Property that is the Subject of the Claim

Claimant’s USDA/FSA Account Number(s):

I hereby request and authorize USDA/FSA to provide the information about my outstanding USDA/FSA Farm Loan Program loans to the Claims Administrator in In re Black Farmers Discrimination Litigation. I acknowledge and understand that USDA/FSA will not reduce, discharge, or forgive my debt and that interest on my debt will continue to accrue unless and until I have paid the debt in full.

Claimant’s Signature: _____________________________________________________________ Date: ____________________________

PART II. USDA/FSA RESPONSE TO CLAIMS ADMINISTRATOR

This Response is as of: ________________

PRINCIPAL

LOAN #

BALANCE

INTEREST BALANCE

TOTAL

DAILY INTEREST ACCRUAL

USDA/FSA Authorizing Official Signature:_____________________________________

Date Prepared: __________ Page ___ of ____

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 94 of 110
EXHIBIT E

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 95 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

Amount Paid

QUARTERLY DISBURSEMENT REPORTING FORM
For Q___ of 20____ Page ___ of _____

Date Paid

Payee Name & Address

Purpose of Payment

Track A/Track B (if applicable)

(Attach additional pages as necessary)

Quarterly Disbursement Reporting Form – Page 1

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 96 of 110

Total number of payments made during current reporting quarter:
Total amount of payments made during current reporting quarter:
Total number of payments made to date: (inclusive of current and all prior reporting quarters)
Total amount of payments made to date: (inclusive of current and all prior reporting quarters)
Total number of Track A Awards made during current reporting quarter:
Total amount of Track A Awards made during current reporting quarter:
Total number of Track A Awards made to date: (inclusive of current and all prior reporting quarters)
Total amount of Track A Awards made to date: (inclusive of current and all prior reporting quarters)
Total number of Track B Awards during current reporting quarter:
Total amount of Track B Awards made during current reporting quarter:
Total number of Track B Awards made to date: (inclusive of current and all prior reporting quarters)
Total amount of Track B Awards made to date: (inclusive of current and all prior reporting quarters)

__________________________ $_________________________ __________________________
$_________________________
__________________________ $_________________________ __________________________
$_________________________
__________________________ $_________________________ __________________________
$_________________________

I, _____________________________, certify that the above content is true, complete, and accurate.

____________________________ Signature of Class Counsel

_____________ Date

Quarterly Disbursement Reporting Form – Page 2

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 97 of 110
EXHIBIT F

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 98 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

YOUR CLAIM PACKAGE IS NOT COMPLETE
YOU MUST RESPOND WITHIN 30 DAYS OF THE POSTMARK ON THIS MAILING

PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

YOU ARE RECEIVING THIS NOTICE BECAUSE THE CLAIM PACKAGE YOU SUBMITTED IS NOT COMPLETE
AND WE NEED ADDITIONAL INFORMATION
(SEE PARTS II, III, IV, and V)

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 99 of 110

_______________________________ ______________________ ____________________________________

Claimant’s Name (First, Middle, Last) Claimant ID #

Claimant’s Social Security/Taxpayer I.D. #

PART II. ELEMENTS OF A COMPLETE CLAIM PACKAGE

To be eligible for relief, a Claimant must submit:
1) A completed Claim Form.
2) For a Claimant who selects Track A and seeks a payment in recognition of outstanding USDA/FSA Farm Loan Program debt, a completed Authorization to Disclose Debt Information Form.
3) For a Claimant with an attorney, a declaration by the Claimant’s attorney attesting to the attorney’s good faith belief in the truth of the factual basis for the claim.
4) For a Claimant who is deceased, (a) a death certificate and (b) either (i) proof of legal representation, or (ii) a sworn statement describing why the submitting individual believes he or she will be appointed the legal representative of the Claimant’s estate.
5) For a Claimant unable to submit a claim on his or her own behalf due to a physical or mental limitation, (a) proof of legal representation or (b) a sworn statement describing why the Claimant is unable to submit a claim on his or her own behalf and why the submitting individual asserts a right to do so on the Claimant’s behalf.

PART III. DEADLINE FOR SUBMISSION OF A COMPLETE CLAIM PACKAGE
To be eligible for relief, a Claimant must submit a Complete Claim Package by [Claims Deadline]. The submission date is the date of postmark if the Claim Package is sent via first-class mail, the date of deposit if sent by courier or overnight delivery, and the date of transmission if sent electronically.
PART IV. PROBLEM(S) WITH YOUR CLAIM PACKAGE (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)
We have identified the following problem(s) with your claim package (check all that apply):
You did not submit a Claim Form.
You did not sign your Claim Form.
You did not answer the following questions on the Claim Form: __________________________
You are a Track A Claimant seeking a payment in recognition of outstanding USDA/FSA Farm Loan Program debt, and you did not submit a completed Authorization to Disclose Debt Information Form.

Your Claim Package Is Not Complete Form – Page 2

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 100 of 110

_______________________________ ______________________ ____________________________________

Claimant’s Name (First, Middle, Last) Claimant ID #

Claimant’s Social Security/Taxpayer I.D. #

You have an attorney but your submission did not include a declaration by your attorney attesting to the attorney’s good faith belief in the truth of the factual basis for your claim.
You are submitting a claim on behalf of a Claimant who is deceased, and you did not submit a death certificate.
You are submitting a claim on behalf of a Claimant who is deceased, and you did not submit proof of legal representation or a sworn statement describing why you believe you will be appointed the legal representative of the Claimant’s estate.
You are submitting a claim on behalf of a Claimant who is unable to submit a claim on his or her own behalf due to a physical or mental limitation, and you did not submit (a) proof of legal representation or (b) a sworn statement describing why the Claimant is unable to submit a claim on his or her own behalf and why you assert a right to do so on the Claimant’s behalf.
Based on the information included in your Claim Package, we were unable to determine whether your claim was submitted before the Claims Deadline. Please submit additional evidence that shows:
____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________
Based on the information included in your Claim Package, we were unable to determine whether your Claim Package is complete. Please submit additional evidence that shows:
_____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________
PART V. DEADLINE TO RE-SUBMIT YOUR CLAIM PACKAGE
From the date on the postmark of this Form, you have 30 days to re-submit your claim package. Your resubmission must be postmarked no later than 30 days after the postmark on this Form. Your failure to submit a Complete Claims Package within 30 days will result in denial of your claim. You are encouraged to consult an attorney to assist you in re-submitting your claim.
QUESTIONS
If you have any questions, you may contact Class Counsel at [Phone].
Your Claim Package Is Not Complete Form – Page 3

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 101 of 110
EXHIBIT G

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 102 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

YOU HAVE NOT SUBMITTED YOUR CLAIM ON TIME

PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

YOUR CLAIM IS DENIED. (SEE PART II)
THIS DECISION IS FINAL. IT IS NOT REVIEWABLE BY THE CLAIMS ADMINISTRATOR, THE TRACK A NEUTRAL, THE TRACK B NEUTRAL, THE COURT, OR ANY OTHER PARTY OR
BODY, JUDICIAL OR OTHERWISE.

Your Have Not Submitted Your Claim On Time Form – Page 1

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 103 of 110

_______________________________ ______________________ ____________________________________

Claimant’s Name (First, Middle, Last) Claimant ID #

Claimant’s Social Security/Taxpayer I.D. #

PART II. EXPLANATION OF DENIED CLAIMS (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

Your claim is DENIED because you failed to submit your claim on time. Your claim was submitted on ___________________________. All claims had to be submitted by [Claims Deadline] to be eligible for relief. The date of submission is the date of postmark if the Claim Package is sent via first-class mail, the date of deposit if sent by courier or overnight delivery, and the date of transmission if sent electronically.

IMPACT ON OUTSTANDING LOAN OBLIGATIONS: Please note that if you are not current on loan payments you owe the USDA, the Secretary of Agriculture may, in view of the denial of your claim, proceed immediately with any loan acceleration or foreclosure proceedings he believes are appropriate.

QUESTIONS
If you have any questions, you may contact Class Counsel at [Phone]

Your Have Not Submitted Your Claim On Time Form – Page 2

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 104 of 110
EXHIBIT H

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 105 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

YOU ARE NOT A CLASS MEMBER

PART I. CLAIMANT INFORMATION (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Claimant’s Name (First, Middle, Last)

Claimant’s Social Security/Taxpayer

I.D. Number

_________________________________________________________________ _______________________________

Claimant’s Mailing Address/City/State/Zip

Claimant Identification Number

__________________________________ ______________________________ __ __ / __ __ / __ __ __ __

Claimant’s Phone Number

Claimant’s Alternate Phone Number Claimant’s Date of Birth

___________________________________________________________________ Attorney’s Name (First, Middle, Last), if applicable

____________________________________________________________________________________________________ Attorney’s Mailing Address/City/State/Zip

__________________________________ Attorney’s Phone Number

___________________________________________________________________ __ __ __ - __ __ - __ __ __ __

Submitter’s Name (First, Middle, Last), if applicable

Submitter’s Social Security/Taxpayer

I.D. Number

____________________________________________________________________________________________________ Submitter’s Mailing Address/City/State/Zip

___________________________________ Submitter’s Phone Number

YOUR CLAIM IS DENIED. (SEE PART II)
THIS DECISION IS FINAL. IT IS NOT REVIEWABLE BY THE CLAIMS ADMINISTRATOR, THE TRACK A NEUTRAL, THE TRACK B NEUTRAL, THE COURT, OR ANY OTHER PARTY OR
BODY, JUDICIAL OR OTHERWISE.

You Are Not A Class Member Form – Page 1

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 106 of 110

_______________________________ ______________________ ____________________________________

Claimant’s Name (First, Middle, Last) Claimant ID #

Claimant’s Social Security/Taxpayer I.D. #

PART II. EXPLANATION OF DENIED CLAIMS (TO BE COMPLETED BY THE CLAIMS ADMINISTRATOR)

Your claim is DENIED because (check all that apply):
You failed to prove that you submitted a Late-Filing Request pursuant to Section 5(g) of the Pigford Consent Decree before June 19, 2008.
You failed to prove that you have not already obtained a determination on the merits of your discrimination complaint.
IMPACT ON OUTSTANDING LOAN OBLIGATIONS: Please note that if you are not current on loan payments you owe the USDA, the Secretary of Agriculture may, in view of the denial of your claim, proceed immediately with any loan acceleration or foreclosure proceedings he believes are appropriate.

QUESTIONS

If you have any questions, you may contact Class Counsel at [Phone].

You Are Not A Class Member Form – Page 2

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 107 of 110
EXHIBIT I

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 108 of 110
SETTLEMENT AGREEMENT in In re Black Farmers Discrimination Litigation, Civil Action No. 1:08-mc-0511 (PLF)

QUARTERLY CLAIM DETERMINATION REPORTING FORM

Claimant’s Name (Last, First, Middle, Suffix)

Claimant’s Mailing Address (Street, City, Claimant’s Social

State, Zip)

Security/Taxpayer I.D. Number

Claimant’s USDA/FSA Did Claimant Prevail? Account Number(s), if (Yes/No) applicable

Signature of Claims Administrator: ______________________________

Date Prepared:

Page __ of __

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 109 of 110
EXHIBIT J

Case 1:08-mc-00511-PLF Document 170-2 Filed 05/13/11 Page 110 of 110
Claims Administrator, In re Black Farmers Discrimination Litigation
[Date] [Claimant’s Name] [Claimant’s ID Number] [Claimant’s Address] RE: In re Black Farmers Discrimination Litigation: Claim Status Dear [Mr./Mrs.] [Claimant’s Last Name]:
Some time ago, you submitted a Track [A/B] claim to participate in the Non-Judicial Claims Process under the Settlement Agreement in In re Black Farmers Discrimination Litigation, Civ. No. 1:08-mc-0511 (D.D.C.). A neutral party has reviewed your claim materials and determined that your claim is APPROVED.
You are eligible to receive a payment for your successful claim. However, at this time we do not know the amount of the payment you will receive, and we will not know that information until all claims in this case have been determined and final award amounts for all claims have been calculated. No payments will be made under the Settlement Agreement until all claims have been decided.
Please be patient. We will be back in touch with you when the claims process has ended and we are ready to issue payments.
If you have any questions, please feel free to contact us at 1-877-810-8110.
Sincerely,
_______________________ Claims Administrator
Epiq Systems (Claims Administrator), PO Box 4028, Portland, OR 97208-4028 www.websiteurl.com

 </s> Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 1 of 23

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

__________________________________________)

Misc. No. 08-0511 (PLF)

OPINION AND ORDER This matter is before the Court on a Motion for Reconsideration as to the Exclusion of BFAA (“Mot.”) [Dkt. No. 239], filed by the Black Farmers and Agriculturalists Association, Inc. (“BFAA”). For the reasons stated below, the Court will deny the motion.

I. BACKGROUND After Congress passed the Food, Conservation, and Energy Act of 2008 (“2008 Farm Bill”), Pub. L. No. 110-246, 122 Stat. 1651, 2209 (2008), nearly two dozen lawsuits were filed in this Court seeking relief under Section 14012 of that Act, which created a new cause of action for individuals who — due to late filing — were unable to obtain a determination on the merits of discrimination claims submitted pursuant to the Consent Decree in Pigford v. Glickman, Civil Action No. 97-1978 (D.D.C.). The BFAA, along with several individuals, was named as a plaintiff in one of these lawsuits, a suit filed on its behalf by the law firm of Morgan & Morgan, P.A. See Complaint, BFAA v. Schafer, Civil Action No. 08-1188 (D.D.C. July 9, 2008) [Dkt. No. 1]. In August 2008, the Court consolidated all Section 14012 lawsuits into one miscellaneous action. See Order, In re Black Farmers Discr. Litig., Misc. No. 08-0511 (D.D.C. Aug. 8, 2011) [Dkt. No. 1]. The Court subsequently granted preliminary approval of a settlement agreement that was reached between the plaintiffs and the defendant, the Secretary of

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 2 of 23

Agriculture, after extensive negotiations, see Order, Misc. No. 08-0511 (May 13, 2011) [Dkt. No. 172], and on October 27, 2011, the Court gave final approval to the settlement agreement after entertaining objections and conducting a fairness hearing. See In re Black Farmers Discr. Litig., --- F. Supp. 2d ----, 2011 WL 5114830 (D.D.C. Oct. 27, 2011) (Order and Judgment); In re Black Farmers Discr. Litig., --- F. Supp. 2d ----, 2011 WL 5117058 (D.D.C. Oct. 27, 2011, as amended Nov. 10, 2011) (Opinion).
On November 7, 2011, the BFAA filed a motion for reconsideration of its exclusion as a party. The BFAA contends that it was wrongly removed as a plaintiff in this action by Morgan & Morgan without its knowledge or consent. See Mot. at 1-2. In April of 2011, the attorneys who had represented the plaintiffs in Civil Action No. 08-1188 did indeed file an amended complaint that no longer included the BFAA as a party to the action. See Amended Class Action Complaint, Copeland v. Vilsack, Civil Action No. 08-1188 (D.D.C. Apr. 5, 2011) [Dkt. No. 20]. By that point, however, the BFAA was no longer represented by Morgan & Morgan — the firm and the BFAA having had a parting of the ways — and the organization claims that it was never consulted about its removal as a plaintiff in the lawsuit, a fact that the BFAA says it only discovered five months later. Mot. at 1-2. The BFAA now asks the Court to “[s]trike the portion of the Amended Complaint which removes BFAA from this litigation,” to “[f]ully resinstate BFAA as a party Plaintiff in this matter,” and to “fully include BFAA in the terms of the Court’s Order of October 27, 2011.” Id. at 4.1

1

On November 7, 2011, the BFAA also filed a separate “Motion to Reconsider

Order as to Terms of Settlement Agreement,” in which the BFAA argued — as it has before —

that relief is still available to certain class members under Section 741 of the Agricultural, Rural

Development, Food and Drug Administration, and Related Agencies Appropriations Act of 1999,

Pub. L. No. 105-277, 112 Stat. 2681, 2681-30 (1998). See Motion to Reconsider Order as to

2

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 3 of 23
The Court ordered the attorneys who had previously represented the BFAA and who filed the amended complaint that removed the organization as a plaintiff, Morgan & Morgan, to respond to the BFAA’s motion to reconsider its exclusion. See Minute Order, Misc. No. 08-0511 (Dec. 2, 2011). The Court also ordered a response from the attorney who represented the BFAA at the time the amended complaint was filed. See id.
Having considered the BFAA’s motion for reconsideration, the responses to that motion, and the BFAA’s reply, and having carefully reviewed the dockets in Civil Action No. 08-1188 and Misc. No. 08-0511, the Court will deny the BFAA’s motion. Although the motion for reconsideration does not specify the provision of the Federal Rules of Civil Procedure under which the BFAA seeks relief, the Court will analyze the motion as a request under Rule 59(e) to alter or amend the judgment. See Piper v. U.S. Dep’t of Justice, 312 F. Supp. 2d 17, 20 (D.D.C. 2004) (“[M]otions to reconsider are routinely construed as motions to clarify or alter or amend judgment under Rule 59(e).”) (citing Emory v. Sec’y of the Navy, 819 F.2d 291, 293 (D.C. Cir. 1987)); accord Nyman v. Fed’l Deposit Ins. Corp., 967 F. Supp. 1562, 1569 (D.D.C. 1997) (“Regardless of the way a party characterizes a motion, a post-judgment filing challenging the correctness of the judgment falls within the perimeter of Rule 59(e).”). The BFAA asks the Court to “reconsider its Order entered herein on October 27, 2011.” Mot. at 1. The motion for reconsideration was filed within twenty-eight days after the entry of that Judgment, as required by Rule 59, and it asks the Court to reconsider the terms of that Judgment; thus the motion
Terms of Settlement Agreement, Misc. No. 08-0511 (D.D.C. Nov. 7, 2011) [Dkt. No. 238]. The Court denied that motion, concluding that it merely advanced an argument that the Court had already considered and rejected. See Memorandum Opinion and Order, Misc. No. 08-0511 (Dec. 14, 2011) [Dkt. No. 243]. The Court noted that any uncertainty about the BFAA’s status as a plaintiff did not affect its disposition of the motion because the motion lacked merit. Id. at 1 n.1.
3

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 4 of 23

properly is considered under Rule 59(e). Moreover, the BFAA acknowledges in its reply that it seeks relief under Rule 59(e). See Sur Reply to Response in Opposition to Motion for Reconsideration as to the Exclusion of BFAA, Misc. No. 08-0511 (Dec. 23, 2011) (“Reply”) [Dkt. No. 255], at 2.
Irrespective of the conduct of the BFAA’s former attorneys in removing the organization as a plaintiff from this action without consulting with it and obtaining its consent, but see infra at 15-16, the BFAA nevertheless has failed to demonstrate that reconsideration of the Court’s Order and Judgment approving the settlement agreement is warranted. Specifically, the BFAA has not identified any harm that it or its members have suffered or will suffer as a result of its termination from the litigation. Furthermore, the record indicates that the BFAA itself is at least partly to blame for the fact that this issue was not brought to the Court’s attention before the entry of Judgment. As explained below, these considerations compel the conclusion that the BFAA has not demonstrated its entitlement to relief under Rule 59(e).2

A. The BFAA’s Participation in this Litigation In July of 2008, the BFAA and three individual plaintiffs, through counsel, filed an action against the Secretary of Agriculture pursuant to Section 14012 of the newly enacted 2008 Farm Bill. See Complaint, BFAA v. Schafer, Civil Action No. 08-1188 (D.D.C. July 9, 2008) [Dkt. No. 1]. The BFAA purported to appear in the action “in its representational capacity

2

The only plausible alternative would be to treat the BFAA’s filing as a motion

under Rule 60(b) for relief from a judgment or order. “‘[T]he standards that govern Rule 60(b)

are even more restrictive.’” Duma v. Unum Provident, 770 F. Supp. 2d 308, 315 n.6 (D.D.C.

2011) (quoting Taitz v. Obama, 754 F. Supp. 2d 57, 58 (D.D.C. Dec. 9, 2010)). Thus, the

BFAA’s motion “would similarly fail if analyzed under the more restrictive standard of Rule

60(b).” Id.

4

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 5 of 23
on behalf of its members who are Pigford claimants entitled under the 2008 Farm Bill to seek a determination on the merits of their claims.” Id. ¶ 5. The complaint sought three forms of relief: (1) a “declaration that [the BFAA’s] members who are eligible ‘Pigford claimants’ under the 2008 Farm Bill are entitled to receive a determination on the merits of their discrimination claims”; (2) a determination that each of the three named individual plaintiffs was the subject of unlawful discrimination by the U.S. Department of Agriculture (“USDA”); and (3) damages and discharge of debt for the three individual plaintiffs, along with judicial supervision and equitable distribution of the fund that had been appropriated by Congress for the payment of successful Section 14012 claimants. Id. ¶¶ 16, 18, 20-21. The BFAA and the individual plaintiffs were represented by attorneys employed by or associated with the law firm Morgan & Morgan, P.A. (“the Morgan & Morgan attorneys”).
In August of 2008, a month after the complaint in BFAA v. Schafer was filed, the Court consolidated all Section 14012 lawsuits into one miscellaneous action for all purposes. See Order, Misc. No. 08-0511 (Aug. 8, 2008) [Dkt. No. 1].
In April of 2009, the Morgan & Morgan attorneys filed a “First Amended Complaint” in Civil Action No. 08-1188. See First Amended Complaint, BFAA v. Vilsack, Civil Action No. 08-1188 (Apr. 17, 2009) [Dkt. No. 16]. Under Rule 25(d) of the Federal Rules of Civil Procedure, Secretary of Agriculture Thomas J. Vilsack had been substituted for former Secretary of Agriculture Ed Schafer. The amended complaint contained the same allegations and sought the same relief as did the original complaint, but it added four new individual plaintiffs in addition to the three original individual plaintiffs and the BFAA, which was still listed as the lead plaintiff in the case. The amended complaint sought certification of a class under Rule
5

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 6 of 23
23(b)(1)(B) of the Federal Rules of Civil Procedure, see id. ¶¶ 4-35, and now sought damages and a determination on the merits not only for the individual plaintiffs but also for all putative class members. See id. ¶¶ 32, 34.
In March of 2010, the USDA notified the Court that it had signed a settlement agreement with the plaintiffs in the consolidated cases. See Defendant’s Unopposed Motion to Withdraw His Motion to Certify a Rule 23(b)(1) Class, Misc. No. 08-0511 (Mar. 1, 2010) [Dkt. No. 137].
On May 19, 2010, attorney Dedrick Brittenum, acting as counsel for the BFAA, filed a motion to intervene in both the original Pigford case, Civil Action Nos. 97-1978 and 98-2693, and in the current litigation. See Motion to Intervene, Misc. No. 08-0511 (May 19, 2010) [Dkt. No. 146]. This motion was perplexing because the original Pigford case had been closed in 1999, and the BFAA was already a party to the present litigation. The motion referred to the recently signed settlement agreement and appears to have been designed to seek an opportunity for the BFAA to be heard on behalf of its members regarding that proposed agreement. See id. at 2.
The Morgan & Morgan attorneys report that upon learning of the BFAA’s motion to intervene they “contacted Mr. Brittenum to discuss BFAA’s status in the litigation and his role in representing them.” Response in Opposition to Motion for Reconsideration, Misc. No. 08-0511 (Dec. 19, 2011) (“Opp.”) [Dkt. No. 245], at 5. The attorneys state that they “provided Mr. Brittenum with some of the materials from the consolidated case and discussed the logistics of [their] withdrawing from representation of BFAA and Mr. Brittenum becoming counsel of record.” Id. The attorneys further state that they “also discussed [with Mr. Brittenum] that
6

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 7 of 23
BFAA would need to file a separate complaint or otherwise appear in the action once BFAA was formally represented by Mr. Brittenum.” Id.
In July of 2010, Mr. Brittenum entered an appearance on behalf of the BFAA. See Plaintiff’s Notice of Appearance, Misc. No. 08-0511 (July 9, 2010) [Dkt. No. 155]. The Morgan & Morgan attorneys report that they then “provided a motion to withdraw to BFAA for its signature so that [they] could file a notice of withdrawal with the Court.” Opp. at 6. The attorneys state that they “did not receive anything back from BFAA or Mr. Brittenum.” Id.
For its part, the BFAA similarly reports that “in the summer of 2010, BFAA elected to retain other representation,” Mot. at 3, and the organization has furnished copies of the attorneys’ notices of withdrawal signed by Mr. Burrell and dated July 14, 2010. See id., Ex. G. By July 2010, therefore, all parties understood that the Morgan & Morgan attorneys were no longer representing the BFAA, which was now represented instead by Mr. Brittenum. On December 13, 2010, the Morgan & Morgan attorneys filed a formal motion to withdraw as counsel for the BFAA, see Motion to Withdraw Appearance for the Black Farmers and Agriculturalists Association, Inc., Civil Action No. 08-1188 (Dec. 13, 2010) [Dkt. No. 17], and the Court granted that motion the following day. See Minute Order, Civil Action No. 08-1188 (Dec. 14, 2010).
On March 30, 2011, nearly all the plaintiffs in the consolidated cases moved for preliminary approval of the proposed settlement agreement. See Motion for Preliminary Approval of Settlement, Misc. No. 08-0511 (Mar. 30, 2011) [Dkt. No. 161]. That motion was brought on behalf of three individually named plaintiffs — James Copeland, Earl Moorer, and Marshallene McNeil — who sought to be named as representatives of a proposed class. Id. at 2.
7

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 8 of 23
Two days later, on April 1, 2011, the Morgan & Morgan attorneys moved for permission to file a second amended complaint in Civil Action No. 08-1188. This motion was filed in both the individual action and the miscellaneous action. See Certain Plaintiffs’ Motion and Memorandum in Support Requesting Leave to File a Second Amended Complaint, Civil Action No. 08-1188 (Apr. 1, 2011) [Dkt. No. 19]; id., Misc. No. 08-0511 (Apr. 1, 2011) [Dkt. No. 162]. The motion explained that the revised complaint substituted the three named plaintiffs from the preliminary approval motion (plaintiffs Copeland, Moorer, and McNeil) for the individual plaintiffs previously named in Civil Action No. 08-1188. Id. at 1. It also explained that the revised complaint “sets forth factual and legal allegations that are the subject of the Motion for Preliminary Approval[.]” Id.
The proposed complaint filed by Morgan & Morgan, titled “Amended Class Action Complaint,” was attached as an exhibit to the motion to amend. See Docket No. 19-1, Civil Action No. 08-1188; Docket No. 162-1, Misc. No. 08-0511. The Court granted the motion to amend on April 5, 2011, see Minute Order, Civil Action No. 08-1188 (Apr. 5, 2011); id., Misc. No. 08-0511 (Apr. 5, 2011), and the new complaint was filed on the docket that day. See Amended Class Action Complaint, Civil Action No. 08-1188 (Apr. 5, 2011) [Dkt. No. 20]; id., Misc. No. 08-0511 (Apr. 5, 2011) [Dkt. No. 163] (“Amended Class Action Complaint”).
The April 1, 2011 amended class action complaint — which contains the case number only of Civil Action No. 08-1188 but was filed on the dockets of that case and the miscellaneous action — was signed by forty-five attorneys, representing nearly all counsel who represented clients in the consolidated cases, including the Morgan & Morgan attorneys. See Amended Class Action Complaint at 13-15. In place of the BFAA and the seven previously
8

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 9 of 23
named individual plaintiffs, the complaint’s heading names as plaintiffs the three individuals on whose behalf the motion for preliminary approval was filed. A footnote appears after the word “Plaintiffs” in the heading of the complaint, stating: “This amended complaint removes the Black Farmers and Agriculturalists Association, Inc. (“BFAA”) as a plaintiff in this action. Previously named Plaintiffs Tommy Davis, Virginia Flynn Factor, and Ludora Valentine remain plaintiffs eligible for relief as putative members of the proposed Class.” Id. at 1 n.1.3
The amended complaint sought certification of a class under Rule 23(b)(1)(B) of the Federal Rules of Civil Procedure, a determination on the merits of Pigford claims for all class members, and damages for all class members. See id. ¶¶ 29-38.
In response to the Court’s Order of December 2, 2011, directing them to respond to the BFAA’s motion for reconsideration, the Morgan & Morgan attorneys write that “[t]he purpose of this amended complaint was to replace the plaintiffs originally named in the Individual Action [i.e., Civil Action No. 08-1188] with the three individuals who had moved the Court for preliminary approval of the class action settlement as well as to conform the operative complaint to the terms of that settlement agreement.” Opp. at 6. The attorneys state that they “attempted to reach attorney Brittenum to discuss the filing of the motion for leave to file an amended complaint and the fact that the proposed Amended Class Action Complaint would not include the BFAA as a party. Counsel was unable to reach attorney Brittenum.” Id. at 7.

3

The three “previously named” plaintiffs listed in the footnote are the three named

plaintiffs who appeared in the original complaint in Civil Action No. 08-1188 along with the

BFAA. The document makes no reference to the four named individuals who were added as

plaintiffs in the first amended complaint.

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At the time that the Morgan & Morgan attorneys attempted to reach Mr. Brittenum, however, it appears that he was no longer actively representing the BFAA, although he had not filed a notice of withdrawal and consequently still appeared on the docket as counsel for the BFAA. Mr. Brittenum reports that “[b]y letter dated 2 October 2010, The Black Farmers & Agriculturalists Association, Inc., notified counsel that his representation was no longer needed in the above matter.” Response to Motion for Reconsideration as to the Exclusion of BFFA [sic] and Motion to Withdraw Appearance, Misc. No. 08-0511 (Dec. 20, 2011) [Dkt. No. 246].4 By the Spring of 2011, therefore, the BFAA was no longer represented either by the Morgan & Morgan attorneys or by Mr. Brittenum. No other attorney filed a notice of appearance on the BFAA’s behalf until two weeks ago. See Notice of Appearance by Paul A. Robinson Jr., Misc. No. 08-0511 (Dec. 29, 2011) [Dkt. No. 254].
Despite the confused state of its legal representation or lack thereof, the BFAA nevertheless was afforded, and took advantage of, the opportunity to express its views regarding the proposed class action settlement agreement. After granting preliminary approval of the settlement, the Court set a deadline for interested parties to submit objections to the settlement

4

In fact, Mr. Brittenum remained listed as counsel on the docket for well over a

year after the BFAA relieved him of his services. Not until December 2011, when the Court

ordered him to respond to the BFAA’s motion for reconsideration, did Mr. Brittenum belatedly

move to withdraw his appearance. In explanation for his failure to provide notice of his

withdrawal, Mr. Brittenum states that he “hoped to notify the Court that we remained in the case

representing individual clients and not the Black Farmers & Agriculturalists Association, Inc.,”

that “[t]o date counsel has not secured any of the aforementioned black farmers as clients,” that

“[c]ounsel has not secured the signature of the Black Farmers & Agriculturalists Association,

Inc. on a Notice of Withdrawal of Appearance,” and that “[c]ounsel apologizes for not giving

notice of withdrawal earlier.” Response to Motion for Reconsideration, Misc. No. 08-0511 (Dec.

20, 2011) [Dkt. No. 246], at 1. Whether Mr. Brittenum “hoped” to secure other clients has

nothing to do with his obligation to the BFAA, the other parties in this case, and the Court to

give prompt notice of his withdrawal as counsel.

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and a date for a final fairness hearing. See Order Granting Preliminary Approval of Settlement Agreement, Misc. No. 08-0511 (May 13, 2011) [Dkt. No. 172], at 12-13; Order, Misc. No. 08-0511 (May 20, 2011) [Dkt. No. 174]. Mr. Burrell submitted a twenty-eight page document that articulated a number of objections to the settlement agreement. See Notice of Appearance — Fairness Hearing, Misc. No. 08-0511 (Aug. 26, 2011) [Dkt. No. 208]. Mr. Burrell later appeared at the hearing, held on September 1, 2011, and spoke at length on behalf of the BFAA’s members. The Court considered Mr. Burrell’s written and oral objections and discussed them in its Opinion approving the settlement agreement, repeatedly citing the BFAA and Mr. Burrell by name. See In re Black Farmers Discr. Litig., --- F. Supp. 2d ----, 2011 WL 5117058, at *25-26, *30, *32, *36 n.1 & n.5 (D.D.C. Oct. 27, 2011, as amended Nov. 10, 2011).
B. The BFAA’s Motion for Reconsideration The Court approved the settlement agreement on October 27, 2011. See In re Black Farmers Discr. Litig., --- F. Supp. 2d ----, 2011 WL 5114830 (D.D.C. Oct. 27, 2011). On November 7, 2011, now represented by attorney Paul A. Robinson Jr., the BFAA filed its motion for reconsideration. In this motion, the BFAA states that not until September 7, 2011, did it discover that it was no longer a plaintiff in Civil Action No. 08-1188 and that it had been removed by the amended class action complaint filed in April of 2011. Mot. at 1-2. The BFAA states: “No principal of BFAA, nor any of its officers or directors had any knowledge of the effort to exclude or remove BFAA from this litigation. Moreover, no principal or Officer of BFAA ever consented to nor authorized anyone to remove BFAA from this litigation.” Id. at 2; see also id., Ex. A (Affidavit of Thomas Burrell) (“Neither I, as President, BFAA, nor any other
11

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 12 of 23
officer or director of the BFAA had any knowledge of the motion for removal of BFAA from this litigation.”). The BFAA argues that the Morgan & Morgan attorneys “had no authority to remove BFAA from this litigation as Morgan and Morgan was not representing BFAA in April of 2011” when the amended complaint was filed. Mot. at 3-4. The BFAA therefore asks the Court to “[s]trike the portion of the Amended Complaint which removes BFAA from this litigation,” to “[f]ully reinstate BFAA as a party Plaintiff in this matter,” and to “include BFAA in the terms of the courts [sic] Order of October 27, 2011.” Id. at 4.
II. LEGAL STANDARD “A motion to alter or amend judgment under Rule 59(e) is discretionary with the court and need not be granted unless the Court finds that there is ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’” MDB Communications, Inc. v. Hartford Cas. Ins. Co., 531 F. Supp. 2d 75, 79 (D.D.C. 2008) (quoting Ciralsky v. Central Intelligence Agency, 355 F.3d 661, 671 (D.C. Cir. 2004)). “New evidence, as that term is used in Rule 59(e), means evidence which ‘is newly discovered or previously unavailable despite the exercise of due diligence.’” Int’l Painters and Allied Trades Indus. Pension Fund v. Design Technologies, 254 F.R.D. 13, 19 (D.D.C. 2008) (quoting Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23, 29 (D.D.C. 2001)). Although “courts have not precisely defined what constitutes ‘manifest injustice,’” Piper v. U.S. Dep’t of Justice, 312 F. Supp. 2d at 22, the D.C. Circuit has indicated that it does not exist where “‘a party could have easily avoided the outcome, but instead elected not to act until after a final order had been entered.’” Id. at 23 (quoting Ciralsky v. Central Intelligence Agency, 355 F.3d at 671).
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Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 13 of 23
Rule 59(e) motions are “‘disfavored and relief from judgment is granted only when the moving party establishes extraordinary circumstances.’” Duma v. Unum Provident, 770 F. Supp. 2d at 312 (quoting MDB Communications, Inc. v. Hartford Cas. Ins. Co., 531 F. Supp. 2d at 79). Parties “may not use a Rule 59 motion to raise new issues that could have been raised previously.” Kattan by Thomas v. District of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993).
III. DISCUSSION Of the grounds for relief available under Rule 59(e), only two are potentially implicated by the BFAA’s motion for reconsideration: “the availability of new evidence” and “the need to . . . prevent manifest injustice.” MDB Communications, Inc. v. Hartford Cas. Ins. Co., 531 F. Supp. 2d at 79.
A. New Evidence The BFAA brings to the Court’s attention the circumstances of its removal as a plaintiff, stating that it was unaware of the removal until September 2011. The Court finds that this information does not constitute “new evidence” as that term is used in Rule 59(e). The information was known by the BFAA before the Court issued its Order and Judgment on October 27, 2011, and was available to the BFAA long before that date. The Morgan & Morgan attorneys moved for leave to file the amended class action complaint on April 1, 2011, and the complaint was filed on April 5, 2011. The first page of this complaint, which was attached as an exhibit to the April 1 motion, clearly indicates that the BFAA had been removed as a plaintiff. See Amended Class Action Complaint at 1. Electronic
13

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 14 of 23
notice of the motion was sent to Mr. Brittenum, who was still listed as the BFAA’s counsel and had a professional obligation to keep his client advised of developments in the case. See Opp., Ex. D. Moreover, the motion and the complaint were publicly available and could be accessed on the internet by anyone with a PACER account. In addition, from the date that the amended complaint was filed on April 5, 2011, the docket for Civil Action No. 08-1188 would clearly have indicated “TERMINATED: 04/05/2011” beneath the BFAA’s name at the top of the docket, as it does now.
Furthermore, the BFAA by its own admission was aware of its termination no later than September 7, 2011 — more than seven weeks before the Court’s October 27, 2011 Order and Judgment was entered. See Mot. at 1-2. But the BFAA did not move the Court for reinstatement until two months later, after the Court had already approved the settlement agreement.
The evidence that the BFAA presents to the Court, therefore, is not “newly discovered.” Int’l Painters and Allied Trades Indus. Pension Fund v. Design Technologies, 254 F.R.D. at 18. Nor was it “previously unavailable despite the exercise of due diligence.” Id. With proper diligence, the BFAA could have presented its grievance to the Court at any time between April and October 2011; it certainly could have done so after September 7, 2011, at which point it unequivocally was aware of its termination. Issues that “could have been raised previously” cannot form the basis of post-judgment relief under Rule 59. Kattan by Thomas v. District of Columbia, 995 F.2d at 276; see id. at 277 (finding that defendant waived issue “by not raising it in a timely manner” before judgment); Int’l Painters and Allied Trades Indus. Pension Fund v. Design Technologies, 254 F.R.D. at 18, 19 (observing that Rule 59 motions are not
14

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 15 of 23
granted where “the moving party is using the motion to assert arguments that could have been raised prior to final judgment,” and finding that “all of Plaintiff’s allegedly new evidence was previously available to Plaintiff and could have been timely submitted to the Court if Plaintiff had exercised due diligence”).
B. Manifest Injustice The Court finds that no manifest injustice has occurred. This does not mean that the Court condones the method through which the BFAA was terminated from this case without its knowledge or consent. It is undisputed that by April of 2011 the Morgan & Morgan attorneys no longer represented the BFAA, having formally withdrawn their representation of the organization the previous December. It also is undisputed that the attorneys never obtained the consent of the BFAA or its counsel of record before moving to file the amended complaint that ended the BFAA’s party status on April 1, 2011. The Morgan & Morgan attorneys cite no authority that permits an attorney to drop a plaintiff from a civil action when the attorney neither represents that plaintiff nor has obtained the plaintiff’s consent to be removed. The attorneys explain that they “attempted” to reach Mr. Brittenum (who was listed on the docket as the BFAA’s counsel) to discuss the matter but were “unable” to do so. Opp. at 7. Having failed to obtain consent from the BFAA, a party they no longer represented, or its counsel of record, the attorneys lacked authority to unilaterally remove the BFAA from the action. Nor do the attorneys explain why they did not bring these matters to the Court’s attention at the time that they sought leave to amend the complaint.
15

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 16 of 23

Although the Court cannot approve of the way in which the BFAA was removed as a party, it also finds, for the reasons explained below, that no manifest injustice has occurred requiring the Court to amend its Order and Judgment. The BFAA has not identified any harm that it or its members suffered or will suffer from the organization’s removal as a plaintiff. And to the extent that any adverse ramifications accrue from the BFAA’s removal, the organization is partly responsible for those consequences through its own lack of diligence.
As explained, the BFAA purported to appear in this action exclusively “in its representational capacity on behalf of its members who are Pigford claimants entitled under the 2008 Farm Bill to seek a determination on the merits of their claims.” First Amended Complaint, Civil Action No. 08-1188 (Apr. 17, 2009) [Dkt. No. 16], at 6.5 The BFAA sought certification of a class of all individuals who are entitled to relief under the 2008 Farm Bill, id. ¶¶ 21-26, along with a declaration that class members are entitled to receive a determination on the merits of their discrimination claims, a determination on the merits for each class member, and damages and discharge of debt for each successful class member. Id. ¶¶ 27-35. The settlement agreement approved by the Court certified just such a class and established a process, which is now being implemented, for all class members to obtain the relief sought. See In re Black Farmers Discr. Litig., --- F. Supp. 2d ----, 2011 WL 5117058 (D.D.C. Oct. 27, 2011); Settlement Agreement, Misc. No. 08-0511 (Mar. 30, 2011) [Dkt No. 161-3]. Thus, all members of the BFAA who are entitled to relief under the 2008 Farm Bill are members of the settlement class. Little surprise, then, that nowhere in the BFAA’s motion or reply does it point to any

5

The BFAA may or may not have had representational standing to appear as a

plaintiff in this action; its standing was never tested by the defendant, and the Court had no

occasion to analyze it.

16

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 17 of 23
injury that either it or its members have suffered or will suffer as a result of its termination from the litigation. The organization protests the manner of its removal — rightly, in the view of the Court — but it never explains what injustice is in need of correction, and the Court perceives none.
To the extent that the BFAA objects to any particular aspects of the settlement agreement, the organization and Mr. Burrell presented those objections to the Court through written submissions and oral presentation at the fairness hearing. As explained above, the Court considered those objections and specifically addressed them in its Opinion approving the settlement. “For all practical purposes,” as the Morgan & Morgan attorneys accurately note, “the Court treated BFAA and Mr. Burrell as though they were parties or class members and provided them ample opportunity to be heard even after BFAA had been removed from the operative complaint.” Opp. at 11-12. The BFAA’s removal as a plaintiff thus had no effect on the organization’s ability to influence the Court as it considered the proposed settlement agreement.
Moreover, when the Court issued its Order and Judgment approving the settlement, all of the individual actions that were consolidated into the miscellaneous case — including Civil Action No. 08-1188 — were dismissed, and the claims process established by the settlement agreement went into effect. See In re Black Farmers Discr. Litig., --- F. Supp. 2d ----, 2011 WL 5114830, at *4-5 (D.D.C. Oct. 27, 2011). Had the BFAA remained a plaintiff on this date, the result would have been identical: the case in which the BFAA was a party, No. 08-1188, would have been dismissed along with all the other cases and the miscellaneous action. Cf. id. at *4 (listing, among the dismissed cases, another action in which an advocacy organization appeared as a plaintiff, National Black Farmers Association v. Schafer, Civil Action
17

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 18 of 23
No. 08-0940). The settlement agreement — which the Court was tasked with either accepting or rejecting — simply includes no role for private advocacy organizations like the BFAA. Notably, Mr. Burrell in his written or oral submission never objected to the lack of an institutional role for the BFAA or other advocacy organizations in the settlement agreement, although he objected to many of its other facets. See Notice of Appearance — Fairness Hearing, Misc. No. 08-0511 (Aug. 26, 2011) [Dkt. No. 208]. Accordingly, the BFAA’s current request to “include BFAA in the terms of the courts [sic] Order of October 27, 2011” rings hollow. The BFAA never asked to be “included” within the terms of the Order before it issued, and the organization fails to explain what it would mean to “include” the BFAA now.
To the extent that the BFAA suffers any adverse consequences from its lack of party status at the time of Judgment, these consequences do not amount to a manifest injustice because the BFAA’s own conduct contributed to them. As described above, the BFAA admits that it was aware of its removal no later than September 7, 2011. See Mot. at 1-2. Instead of immediately moving for reinstatement, the BFAA waited two months, until after the Court had issued its Order and Judgment, before belatedly seeking post-judgment relief. “[M]anifest injustice does not exist where, as here, a party could have easily avoided the outcome, but instead elected not to act until after a final order had been entered.” Piper v. U.S. Dep’t of Justice, 312 F. Supp. at 23 (quoting Ciralsky v. Central Intelligence Agency, 355 F.3d at 671).
Moreover, with proper diligence, the BFAA could have discovered its termination in April 2011 and taken remedial action at any point thereafter. The organization’s failure to keep apprised of its own case — or to retain counsel who would at the very least perform this function — fatally undermines any claim of manifest injustice resulting from that failure. See
18

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Fox v. American Airlines, Inc., 389 F.3d 1291, 1293, 1296 (D.C. Cir. 2004) (finding that adverse judgment and dismissal of case resulting from counsel’s failure to monitor the court’s docket did not constitute “manifest injustice”); Kattan by Thomas v. District of Columbia, 995 F.2d at 276 (finding that party “waived its argument . . . by not raising it before judgment” and noting that a party “may not use a Rule 59 motion to raise new issues that could have been raised previously”). The Court therefore concludes that no manifest injustice has occurred and that the BFAA has failed to establish the “extraordinary circumstances” that would warrant relief under Rule 59(e).

C. Misleading Representations by the BFAA Finally, the Court feels compelled to remark that even if the BFAA had remained a plaintiff at the time of the Court’s Order approving the settlement agreement, and even if that agreement had included some mechanism by which private advocacy organizations like the BFAA could play an institutional role in the case, the Court would not likely have approved any agreement in which the BFAA were granted an official role carrying the imprimatur of the Court. In part, this is because the BFAA and Mr. Burrell have consistently failed to demonstrate that they have a sound grasp of the legal issues surrounding the rights of Pigford claimants eligible for relief under the 2008 Farm Bill. Even more important, the Court is deeply concerned that some of the BFAA’s and Mr. Burrell’s conduct and representations have created a serious risk of misleading and in fact harming the interests of the very individuals on whose behalf they purport to advocate.6

6

Such conduct by Mr. Burrell is not a new development, and this is not the first

time that the Court has taken him and the BFAA to task for misleading would-be claimants. In

2005, the Court explained that Mr. Burrell had “given false hope to thousands of African

American farmers” by claiming publicly that the Consent Decree from the original Pigford case

19

Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 20 of 23
For example, at the same time that the BFAA filed its motion to be reinstated as a
plaintiff, it also filed a separate motion to reconsider the terms of the settlement agreement, in
which it argued that many Pigford claimants retain the right to sue under a 1998 statute, a clearly
meritless argument that was flatly rejected by this Court in approving the settlement. See In re
Black Farmers Discr. Litig., --- F. Supp. 2d ----, 2011 WL 5117058, at *25-*26 (D.D.C. Oct. 27,
2011, as amended Nov. 10, 2011); supra, note 1. Shortly after filing this motion, the BFAA
disseminated the following message to its members:
Dear BFAA, Inc. Member:
On Monday, November 7, 2011, the Black Farmers And Agriculturalists Association, Incorporated (BFAA, Inc) filed, by and through its legal representative, an objection to the Pigford II lawsuit (In re BLACK FARMERS DISCRIMINATION LITIGATION, Misc. No. 08-0511 (PLF)).
In sum, this appeal will preserve BFAA, Inc.’s (members) constitutional right to argue (case or controversy) , before the Court of Appeals and/or the US Supreme Court, if necessary, to correct any Due Process and/or Equal Protection Violations that it believes might work to deprive its MEMBERS of their rights in the Settlement Agreement; including that which was approved by Federal District Court, Judge Friedman on October 28, 2011.
However, this appeal will only effect BFAA, Inc. MEMBERS.
If you are not a “current (dues paying) member,” this appeal and its legal implications may not affect or protect your participation in this lawsuit.
would be reopened and modified, a patently unfounded prediction. See Pigford v. Veneman, 355 F. Supp. 2d 148, 169 (D.D.C. 2005); see also Pigford v. Veneman, 225 F.R.D. 54 (D.D.C. 2005) (criticizing Mr. Burrell and his former attorney James Myart for misusing the Court’s docket, improperly purporting to speak on behalf of all plaintiffs, and lodging baseless claims of misconduct against defendant’s counsel).
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Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 21 of 23

To check your standing with BFAA, Inc., please call 901.522.8880. Thank you!
Regards, Thomas Burrell President
BFAA, Inc. Files Objection to Pigford II (Nov. 11, 2011), http://www.mybfaa.org/?p=1516 (last
visited Jan. 13, 2012) (emphasis added). The BFAA’s claim that its motion “will only effect
BFAA, Inc. MEMBERS” and that the appeal “may not affect or protect [its members’]
participation in this lawsuit” unless the members pay dues to the BFAA has no legal foundation,
is misleading, and almost resembles an act of extortion.
It also appears that the BFAA has misrepresented the meaning of the Court’s
orders and its own status in the litigation. For instance, in February 2011 the BFAA allegedly
promulgated notice of a workshop for would-be claimants in which it stated:
The Black Farmers and Agriculturalists Association, Inc. (BFAA, Inc.) has associational standing[1] in the herein above referenced lawsuit. This standing was ORDERED by the court on August 8, 2008 (THE BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION et. al., v. TOM VILSACK, Civil Action No. 08-1188 (PLF), IN re BLACK FARMERS DISCRIMINATION LITIGATION, Civil Action No. 08-mc-0511 (PLF)).
Dkt. No. 158-2, Misc. No. 08-0511 (Feb. 11, 2011).7 In fact, the Order to which this notice
refers merely consolidated the many lawsuits filed under Section 14012 of the 2008 Farm Bill

7

This notice and workshop were brought to the Court’s attention when other

plaintiffs in the consolidated cases moved for a temporary restraining order to prevent the BFAA

from disseminating “highly misleading and inaccurate information to black farmers who may be

attempting to determine if they are eligible to seek relief under Section 14012 of the 2008 Farm

Bill.” Certain Plaintiffs’ Motion for a Temporary Restraining Order, Misc. No. 08-0511 (Feb. 2,

2011) [Dkt. No. 158], at 1. The Court denied that motion because the requirements for issuance

of a temporary restraining order were lacking in several respects. See Memorandum Opinion and

Order, Misc. No. 08-0511 (Feb. 11, 2011) [Dkt. No. 160].

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Case 1:08-mc-00511-PLF Document 259 Filed 01/13/12 Page 22 of 23

into this miscellaneous action. See Order, Misc. No. 08-0511 (Aug. 8, 2011) [Dkt. No. 1]. It did not rule that the BFAA or any other organization had associational standing in the action.
More recently, the media has reported that Mr. Burrell has “said he would like to ask black farmers, including 10,000 his group represents in Mississippi, Alabama and Tennessee, to weigh the consequences of waiving their right to appeal before they sign the agreement” to pursue a claim under the settlement agreement in this case. Sara Patterson, Local Advocate Asks for Timeout on Black Farmers Settlement, COMMERCIAL APPEAL (Dec. 30, 2011).8 In fact, individuals eligible for relief under the 2008 Farm Bill do not waive any right to appeal by filing a claim; this right was relinquished by the plaintiffs in this action in exchange for the benefits of the settlement agreement. See In re Black Farmers Discr. Litig., 2011 WL 5117058, at *17, *30. Because the terms of the settlement agreement are binding on all class members whether or not they file claims, see In re Black Farmers Discr. Litig., 2011 WL 5114830, at ¶ 19, individuals cannot preserve a right to appeal by choosing not to submit a claim. In fact, if potential claimants do not file a claim during the claims period which ends on May 11, 2012, they will lose forever their right to share proportionately in the $1.25 billion appropriated by Congress for this limitedfund settlement.
Mr. Burrell can object, and has objected, to the lack of a right to appeal claim determinations under the settlement agreement. See In re Black Farmers Discr. Litig., 2011 WL 5117058, at *30 (describing objections by Mr. Burrell and others and explaining why this feature does not render the settlement agreement unfair). But it is one thing for Mr. Burrell and the

8

Available at http://www.commercialappeal.com/news/2011/dec/30/black-farmers-

plan-rally-against-discrimination-se/=1 (last visited Jan. 13, 2012).

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BFAA to persist in their particular beliefs about the legal rights of Pigford claimants and to advance those beliefs through litigation and appeal. It is quite another thing to direct statements toward potential claimants that may induce them to forgo tens of thousands of dollars to which they may be legally entitled, based solely on views that have not been accepted by any court.
While the Court finds it important to remark on these matters out of concern for the integrity of the claims process and the ability of eligible individuals to obtain determinations on their discrimination claims, these matters do not bear on the legal question presented by the BFAA’s motion for reconsideration. That motion will be denied because, as explained above, the BFAA has not demonstrated “the availability of new evidence,” “the need to . . . prevent manifest injustice,” or any of the other criteria that would compel the Court to take the unusual step of amending its Order and Judgment.

IV. CONCLUSION For reasons stated in this Opinion, the BFAA’s motion for reconsideration will be denied. Accordingly, it is hereby ORDERED that the Motion for Reconsideration as to the Exclusion of BFAA [Dkt. No. 239] is DENIED. SO ORDERED.

DATE: January 13, 2012

/s/________________________ PAUL L. FRIEDMAN United States District Judge
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 </s> Case 1:08-mc-00511-PLF Document 306-1 Filed 09/24/12 Page 1 of 47

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

_________________________________________ )

)

This document relates to

)

)

ALL CASES

)

_________________________________________ )

Misc. No. 08-mc-0511 (PLF)

MEMORANDUM OF LAW IN SUPPORT OF CLASS COUNSEL’S UPDATED MOTION FOR AWARD OF ATTORNEYS’ FEES AND EXPENSES

Case 1:08-mc-00511-PLF Document 306-1 Filed 09/24/12 Page 2 of 47
TABLE OF CONTENTS I. INTRODUCTION AND BACKGROUND ....................................................................... 1 II. THE LITIGATION AND SETTLEMENT AGREEMENT............................................... 4
A. Pigford v. Glickman................................................................................................ 4 B. Section 14012 of the 2008 Farm Bill...................................................................... 5 C. Litigation of Section 14012 Claims ........................................................................ 8 D. February 18, 2010 Settlement Agreement ............................................................ 10 E. The Claims Resolution Act of 2010...................................................................... 12 F. This Court’s Approval of the Settlement Agreement ........................................... 14 G. The Claims Process Approved by This Court....................................................... 15 H. Class Counsel’s Additional Implementation Efforts ............................................ 18 I. The Efforts of Class Counsel ................................................................................ 19 J. Class Counsel’s Out-of-Pocket Expenses............................................................. 19 III. ARGUMENT.................................................................................................................... 20 A. The Court Should Use the “Percentage-of-the-Fund” Method to
Determine Fees in This Case. ............................................................................... 20 B. A Fee Award of 7.4% Is Reasonable and Justified Under the Percentage-of-the-
Fund Method in Light of the Efforts and Risks Undertaken by Class Counsel and the Results Achieved in this Case......................................................................... 22 1. Class Counsel Have Obtained Substantial Benefits for the Class. ........... 23 2. Class Counsel Have Demonstrated Considerable Skill and Efficiency.... 26 3. The Complexity and Duration of this Case Support Class Counsel’s Fee
Request...................................................................................................... 29 4. Class Counsel Have Faced a Significant Risk of Non-Payment............... 32 5. The Objections to the Settlement Have Been Minimal. ........................... 35 6. Class Counsel Are Committed to Devoting Significantly More Time and
Effort in the Implementation of the Settlement for as Long as the Process Takes. ........................................................................................................ 36
i

Case 1:08-mc-00511-PLF Document 306-1 Filed 09/24/12 Page 3 of 47 7. The Award Sought in this Case Is Reasonable When Compared to Fee Awards in Similar Cases. ................................................................... 37 8. The Award Sought in this Case Is Also Reasonable When Cross-Checked Against Lodestar. ...................................................................................... 39
C. A 7.4% Award Is More Favorable for Class Members Than the Rate Successful Claimants Would Have Been Obligated to Pay Under the Retention Agreements They Executed and Signed With Their Individual Counsel. ................................ 41
D. The Award of Fees to Class Counsel Should Be Directed to Lead Class Counsel to Allocate Among All Class Counsel in Accordance With the Terms of the Counsel Participation Agreement. ........................................................................ 42
IV. CONCLUSION................................................................................................................. 44
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I. INTRODUCTION AND BACKGROUND On October 27, 2011, this Court approved a second historic settlement between African-
American farmers and the Secretary of the United States Department of Agriculture (“USDA”). See Order and Judgment (Docket No. 231) (hereinafter “Final Approval Order”); In re Black Farmers Discrimination Litig., Misc. No. 08-0511 (PLF), 2011 U.S. Dist. LEXIS 124471 (D.D.C. Oct. 27, 2011) (“Final Approval Opinion”). The first settlement was approved by this Court on April 14, 1999 in the case of Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999) (“Pigford”).1 The Consent Decree approved by this Court in Pigford brought a measure of justice to thousands of farmers who suffered racial discrimination at the hands of their own government. The saga of trying to obtain justice for black farmers harmed by this racial discrimination did not end with Pigford, however. As the Court well knows, tens of thousands of individuals who requested to participate in Pigford did so after the claim filing deadline established in the Consent Decree had passed. In the end, over 60,000 potential Pigford claimants – nearly three times the number of claimants actually adjudicated – did not have their individual discrimination claims heard on the merits and were denied the opportunity to participate in the Pigford non-judicial claims process.
The present case arises from the remedial statute passed by Congress in 2008 to provide certain of those Pigford late filers an opportunity to have their claims adjudicated on the merits. Specifically, in 2008, Congress passed Section 14012 of the Food, Conservation, and Energy Act (“Farm Bill”),2 which created a new cause of action designed to “giv[e] a full determination on the merits for each Pigford claim previously denied that determination.” Farm Bill § 14012(d).

1

Pigford involved two consolidated cases, Pigford v. Glickman, Case No. 97-1978, and

Brewington v. Glickman, Case No. 98-1693.

2

Pub. L. No. 110-246, 112 Stat. 1651 (June 18, 2008).

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After several years of litigation and negotiation, Class Counsel and counsel for the Defendant entered into a Settlement Agreement in February 2010 to resolve, on a class basis, all claims under Section 14012.3 The Settlement Agreement created an orderly and just non-judicial claims process to adjudicate the claims filed under Section 14012, and to allocate the $1.25 billion appropriated by Congress to pay those claims.4
This Court’s October 27, 2011 Final Approval Order marked the beginning of that claims process, which ran over the course of six months from November 14, 2011 to May 11, 2012. See Docket No. 233 (establishing claims period). During those six months, Class Counsel conducted more than 380 unique claims preparation meetings in 66 cities across the United States (spanning 23 states and the District of Columbia), and provided phone assistance to any putative Class Members who were not able attend an in-person meeting. Through these in-person meetings and phone consultations, Class Counsel provided claims assistance to more than 25,000 individual claimants between November 14, 2011 and May 11, 2012, and Class Counsel are continuing to provide claims assistance to additional Class Members at this time. Indeed, because of the volume and careful planning of the locations of meetings, more than 94% of all claimants under the Settlement Agreement had access to in-person meetings with Class Counsel within 50 miles of their homes to assist with claims preparation, and more than 97% had access to such in-person claims meetings within 75 miles of their homes. At the same time, Class Counsel have actively engaged with the Government, the Court, the Ombudsman, and others to ensure that issues of

3

The Settlement Agreement has been amended several times since February 2010. The version

finally approved by the Court, dated May 13, 2011, was filed as Exhibit 2 to Docket No. 170.

4

When this case commenced in 2008, the Farm Bill limited relief to Section 14012 claimants to

$100 million. See § 14012(c). The remaining $1.15 billion to fund Section 14012 was provided in

November 2010 as part of the Claims Resolution Act, which conditioned appropriation of these additional

funds on the approval of the Settlement Agreement negotiated by Class Counsel and the Government.

Pub. L. No. 111-291, § 201, 124 Stat. 3064, 3070 (2010).

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notice and process were efficiently and fairly addressed throughout the claims period, the adjudication of claims has proceeded smoothly, all reporting requirements in the Settlement Agreement have been met, and the litigation interests of the Class have been fully represented before this Court and the Court of Appeals for the District of Columbia Circuit.5
Class Counsel respectfully submit that the claims process prescribed by the Settlement Agreement has been a model of fairness, efficiency, and integrity, and an extraordinary culmination of the years of work Class Counsel have devoted to obtaining meaningful relief for the members of the Class. This includes, but is certainly not limited to, litigating this case, negotiating and implementing the Settlement Agreement, assisting in securing the funds necessary to effectuate the Settlement,6 overseeing the claims process, and providing in-person and/or telephone claims assistance to more than 25,000 Class Members. By this Motion, Class Counsel request the Court to award attorneys’ fees in the amount of 7.4% of the Settlement Fund Fee Base.7 Such an award is expressly within the range authorized by the Settlement Agreement and is fair and appropriate compensation for the enormous amount of work Class Counsel have performed for the benefit of the Class and the exceptional results they have achieved.

5

Class Counsel successfully defended the Settlement Agreement against three appeals filed before

the D.C. Circuit in Case Nos. 11-5326, 11-5334, and 12-5019. These appeals were dismissed in a per

curiam order on July 26, 2012. See Docket No. 299.

6

While the National Black Farmers Association (spearheaded by John Boyd), the Federation of

Southern Cooperatives, and other farm advocacy groups played key roles in advocating for the creation of

the cause of action ultimately embodied in the 2008 Farm Bill as well as for passage of the 2010 Claims

Resolution Act, Class Counsel provided substantial assistance in support of the efforts to enact the 2010

Act, which expressly conditioned the additional $1.15 billion in funding on Court approval of the

Settlement Agreement.

7

For purposes of this Motion, the term “Settlement Fund Fee Base” means the $1.25 billion in total

funds appropriated by Congress for the payment of successful Section 14012 claims, less the $22.5

million in settlement implementation costs that the Settlement Agreement specifies shall be subtracted

from the $1.25 billion to yield the “Fee Base.” See Settlement Agreement, § II.O.

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II. THE LITIGATION AND SETTLEMENT AGREEMENT Plaintiffs will not repeat here the full history of Pigford and the present case, which is
detailed in their Memorandum of Law in Support of Motion for Preliminary Approval, and catalogued in detail in the Court’s Final Approval Opinion. See Docket No. 161; In re Black Farmers Discrimination Litig., 2011 U.S. Dist. LEXIS 124471, at *8-31. Plaintiffs will highlight, however, some of the more important facts that bear on the present request for an award of 7.4% of the Settlement Fund Fee Base for attorneys’ fees.
A. Pigford v. Glickman In 1997, African-American farmers initiated the Pigford case as a class action against the Secretary of the USDA alleging discrimination by USDA in the administration of farm loan programs, in violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691(a), and the Administrative Procedure Act, 5 U.S.C. §§ 551, et seq. Pigford ultimately was settled, a class was certified, and on April 14, 1999, this Court entered a Consent Decree establishing a claims adjudication process by which class members could seek resolution of their discrimination claims. 185 F.R.D. 82. The Pigford claims adjudication process provided for two “tracks.” Under “Track A,” a claimant who provided “substantial evidence” of discrimination by the USDA could obtain a liquidated damages award of $50,000, the discharge of all outstanding debt to USDA incurred in the loan program that formed the basis of the discrimination claim, and an additional 25% payment to offset federal income taxes on this award. Under “Track B,” a claimant could recover actual damages in an arbitration hearing process by proving by a preponderance of the evidence that he/she had been discriminated against by the USDA and had suffered actual economic losses in the amounts claimed.
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Under the terms of the Consent Decree, Pigford class members were required to file their

claims by October 12, 1999. Docket No. 161, Ex. 3. That deadline could be extended, but only

upon a showing by the claimant that the failure to submit a timely claim was due to

“extraordinary circumstances beyond [the claimant’s] control.” Id. By Court Order, the deadline

for all such “late-filing” requests was set at September 15, 2000. See Order of July 14, 2000

(Docket No. 161, Ex. 6).

More than 60,000 “Late Filers” submitted a request to participate in the Pigford claims

resolution process after the October 12, 1999 deadline set by the Consent Decree but on or

before the September 15, 2000 “late-filing” deadline. More than 58,000 of these late-filing

petitioners were determined not to have satisfied the “extraordinary circumstances” test set by

the Court. In addition, thousands of additional individuals (so-called “Late-Late Filers”) filed

their “late-filing” request to participate in the Pigford claims resolution process after the September 15, 2000 deadline, but before passage of the Farm Bill on June 18, 2008.8 Thus,

altogether, more than 60,000 Pigford claimants with potentially meritorious claims did not have

their individual claims heard on the merits in Pigford.

B. Section 14012 of the 2008 Farm Bill The tens of thousands of unresolved late claims gave rise to significant dissatisfaction in

the African-American farming community concerning the outcome of the Pigford case. Several

of the lawyers who had served as class counsel in Pigford devoted substantial amounts of time to

advocating on behalf of these late-filers. Their effort, in conjunction with the efforts of an array

8

The Facilitator in the Pigford case, Epiq Systems, Inc. (formerly Poorman-Douglas Corporation),

has records of more than 25,000 written communications relating to the Pigford settlement that were

received after the September 15, 2000 late-filing deadline in Pigford but before the enactment of the Farm

Bill in 2008. Epiq has made these records available for use during the claims process in the instant case

to assist claimants in satisfying the “request to participate” requirement of the Settlement Agreement. See

Settlement Agreement, § II.T (defining “Late-Filing Request” as a “written request . . . seeking to

participate in the claims resolution processes in the Pigford Consent Decree”).

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of farm advocacy organizations and activists, together with the strong support of a number of the members of the Congressional Black Caucus and others, led to the passage of Section 14012 of the 2008 Farm Bill. This portion of the Farm Bill, signed into law by President Bush on June 18, 2008, created a new cause of action for “any Pigford claimant who ha[d] not previously obtained a determination on the merits of a Pigford claim” to “obtain that determination . . . in a civil action brought in the United States District Court for the District of Columbia . . . .” Farm Bill § 14012(b). The term “Pigford claimant” was defined as “an individual who submitted a latefiling request under section 5(g) of the [Pigford] [C]onsent [D]ecree.” Farm Bill § 14012(a)(4).
As with the Pigford Consent Decree, Section 14012 provides for two “tracks” by which claimants may obtain a determination of the merits of their discrimination claims: (1) an “expedited resolution[]” process, similar to Track A in the Pigford case, wherein claimants who prove the merits of their claims by “substantial evidence” are entitled to liquidated damages of $50,000, a payment in recognition of outstanding USDA debt, and a 25% tax payment to offset the additional income, Farm Bill § 14012(e);9 and (2) a process similar to Track B in the Pigford case, wherein claimants who satisfy the higher “preponderance of the evidence” standard of proof for their claims are entitled to recover their actual damages. Farm Bill § 14012(f). And, as in the Pigford Consent Decree, Section 14012(g) limits loan acceleration and foreclosures during the pendency of a Section 14012 claim.
There are, however, significant differences between the remedial process established by the Pigford Consent Decree and that provided for by Section 14012. First, and most significant, is the limitation on funds available for “payments and debt relief” under Section 14012. While

9

The 2010 Claims Resolution Act, Pub. L. No. 111-291, § 201, 124 Stat. 3064, 3070 (2010),

deleted Subsection 14012(e) and renumbered all subsequent subsections of Section 14012. Thus, for

example, Subsection 14012(f) is now codified as Subsection 14012(e). For purposes of consistency, we

have used the current codification to refer to these provisions of the Farm Bill.

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the Pigford claims resolved under the Consent Decree were paid from the Judgment Fund,10 and thus were not subject to a funding limitation, claims resolved pursuant to Section 14012 are to be paid solely from funds appropriated to the Secretary of Agriculture, or made available from the Commodity Credit Corporation, for this specific purpose. Under the Farm Bill as passed in 2008, this fund was limited to a total of $100 million, an amount that would have permitted fewer than 1,600 Pigford late filers to obtain the full relief authorized by Section 14012. The Farm Bill anticipated, however, the possibility that additional funds could be appropriated to pay Section 14012 claims by “authorizing to be appropriated such [additional] sums as are necessary to carry out [Section 14012].” Farm Bill § 14012(h)(2). However, prior to the Settlement Agreement in this case, no such additional funds had been appropriated for this purpose.
Second, the Pigford Consent Decree required USDA to pay the substantial costs of implementing the Decree (including the costs of the Pigford Facilitator, neutral adjudicators, and Class Notice), the cost of the Pigford Monitor, and attorneys’ fees from funds separate from those paid out from the Judgment Fund as awards to claimants. Section 14012 of the Farm Bill, by contrast, fails to provide any funding for Class Notice, Neutrals, an Ombudsman, or any other components of an extrajudicial claims process. Likewise, Section 14012 provides no funding for attorneys’ fees or costs, with the result that the only source of funds available to compensate Class Counsel is the Settlement Fund itself. See Farm Bill §§ 14012(c), 14012(h).
Finally, the Pigford Consent Decree required claimants to show that they had received less favorable treatment from USDA than a “specifically identified, similarly situated white farmer,” in order to obtain relief. See Consent Decree § 9(a)(i)(C). This requirement, a leading cause of claim denials in the Pigford claims process, was likewise imposed by Section 14012,

10

31 U.S.C. § 1304.

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although the burden of adducing such evidence was made easier by the requirement in the original Section 14012(e) that USDA provide claimants with information “on farm credit loans and noncredit benefits, as appropriate, made within the claimant’s county” during the relevant time period of the claim.11
C. Litigation of Section 14012 Claims Even before Section 14012 of the 2008 Farm Bill became law, many of the lawyers and law firms involved in Pigford were fielding inquiries and being retained by late-filing claimants to assist them in pursuing some kind of remedy to obtain an adjudication of their Pigford claims. After the passage of Section 14012, these lawyers and firms, who now are among Class Counsel appointed in this case, began to hold workshops, meetings, and otherwise communicate with late-filing Pigford claimants that Congress had provided a vehicle for many of them to obtain an adjudication of their late-filed Pigford claims. Other lawyers and law firms in addition to those involved in Pigford also began to receive inquiries about the new remedy provided by Section 14012, and these firms likewise undertook substantial outreach and educational efforts aimed at late filers. As a result of these outreach and educational efforts, tens of thousands of potential claimants who claimed that they had made a request to participate in the Pigford claims process after the Court-imposed cutoff date individually retained the various lawyers and law firms that now comprise Class Counsel in this case to assist them with pursuing a remedy under Section 14012. Consistent with the standard contingency fee agreements most of these firms were using, many of these retention agreements provided that the contracting lawyer or law firm would be entitled to 33% of any recovery a late-filing claimant might receive by virtue of a claim filed

11

As noted above, in accordance with the Settlement Agreement, the Claims Resolution Act deleted

Subsection 14012(e).

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under Section 14102. On the basis of these signed retention agreements, the lawyers and law firms that now make up Class Counsel began to file suit in this Court as provided by Section 14012.
Between May 2008 and February 2010, more than 28,000 African-American farmers, represented by 25 different law firms, and in 17 separate Complaints, filed suit in this Court under Section 14012.12 These complaints were consolidated by this Court into the abovecaptioned case, In re Black Farmers Discrimination Litigation, Misc. No. 08-mc-0511 (D.D.C.).13

12

The seventeen complaints, in order of filing, are:

a. Agee v. Schafer, C.A. No. 08-0882;

b. Kimbrough v. Schafer, C.A. No. 08-0901;

c. Adams v. Schafer, C.A. No. 08-0919;

d. National Black Farmers Association v. Schafer, C.A. No. 08-00940;

e. Bennett v. Schafer, C.A. No. 08-00962;

f.

McKinney v. Schafer, C.A. No. 08-1062;

g. Bolton v. Schafer, C.A. No. 08-1070;

h. Black Farmers and Agriculturists Association, Inc v. Schafer, C.A. No. 08-1188 (this

case has been amended and renamed Copeland v. Vilsack);

i.

Hampton v. Schafer, C.A. No. 08-1381;

j.

Robinson v. Schafer, C.A. No. 08-1513;

k. James v. Schafer, C.A. No. 08-2220;

l.

Beckley v. Vilsack, C.A. No. 09-1019;

m. Sanders v. Vilsack, C.A. No. 09-1318 (dismissed for lack of service);

n. Russell v. Vilsack, C.A. No. 09-1323;

o. Bridgeforth v. Vilsack, C.A. No. 09-1401;

p. Allen v. Vilsack, C.A. No. 09-1422; and

q. Anderson, v. Vilsack, C.A. No. 09-1507.

13

After the execution of the initial form of the Settlement Agreement on February 18, 2010, the

following six additional complaints were filed:

a. Edwards v. Vilsack, C.A. No. 10-0465;

b. Latham v. Vilsack, C.A. No. 10-0737;

c. Andrews v. Vilsack, C.A. No. 10-0801;

d. Sanders v. Vilsack, C.A. No. 10-1053;

e. Johnson v. Vilsack, C.A. No. 10-0839; and

f.

Abney v. Vilsack, C.A. No. 10-1026.

Together with amendments to the 17 earlier filed complaints, these complaints added more than 19,000 additional claimants to this case.

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When these individual cases were first filed, many of the lawyers filing Section 14012 actions sought to have the Court administer the cases on a consolidated basis, much like a mass tort. Certain of Class Counsel obtained Court authorization to provide information to potential claimants through a Court-sanctioned website, a toll-free number, and other methods of communication. See Case Management Order No. 1 (Dec. 15, 2008) (Docket No. 31). These counsel also agreed to modify their contingency fee contracts with potential Section 14012 claimants to cap the amount of any attorneys’ fee recovered at 20%.
D. February 18, 2010 Settlement Agreement For the better part of two years, counsel for the Plaintiffs in the consolidated actions vigorously pursued the claims of the thousands of individual clients on whose behalf they had filed suit, including researching the array of legal issues relating to Section 14012 and developing an appropriate strategy to secure relief for their clients, extensive briefing on class certification, coordination of case management efforts, and many months of intensive, armslength settlement negotiations with USDA counsel. These efforts culminated in the execution of a comprehensive Settlement Agreement on February 18, 2010, which provided for a non-judicial claims process to resolve finally and globally all Section 14012 cases through certification of a Federal Rule of Civil Procedure 23(b)(1)(B) “limited fund” settlement class. Subject to Court approval, the Settlement Agreement also provided for a fee award in the range of 4.1% to 7.4% of the total funds appropriated for the Settlement (minus $22.5 million specified for costs of implementing the Agreement). Settlement Agreement, § VIII.B. The Settlement Agreement provided that this fee award would be paid into a Common Benefit Fund to compensate Class Counsel for: (a) their work on behalf of all Class Members prior to, and through, final approval of the Settlement by this Court; (b) their work on behalf of individual Track A Claimants through
10

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the claims process set forth in the Settlement Agreement; and (c) any work performed on behalf of the overall Class following the Settlement. Settlement Agreement, § II.N.
The Settlement Agreement also provides that fees approved by this Court as part of a Common Benefit Fund be administered by Lead Class Counsel according to the terms of a Counsel Participation Agreement (“Participation Agreement”) among Class Counsel.14 A copy of this Participation Agreement is attached hereto as Exhibit A.15
Under the Settlement Agreement, both Class Counsel and non-Class Counsel may represent Track B Claimants and be compensated through these contingency fees, which will be negotiated by each individual Claimant and his or her counsel. Settlement Agreement § II.QQ. The Parties agreed, as part of the Settlement, that counsel representing Track B Claimants should be permitted to seek an award that is sufficient to compensate them meaningfully for the additional effort involved in preparing and submitting Track B claims, but is not so great as to diminish significantly a successful Track B Claimant's award. To balance these factors, the Settlement Agreement limits the contingency fee for Track B claims to 8% of an individual claimant's Track B recovery. Settlement Agreement, § X.A.16

14

Two firms that the Court approved as Class Counsel firms are not signatories to the Participation

Agreement: Relman, Dane & Colfax and Kindaka Sanders. Both of these firms made contributions to the

overall effort of Class Counsel to date and participated in some of the claims preparation work under the

Settlement Agreement. Lead Class Counsel have signed an agreement with Kindaka Sanders to

compensate him and his team, at Laffey rates, from a Common Benefit Fee award for the work they

performed for the benefit of the Class, and have proposed a comparable agreement to Relman, Dane &

Colfax.

15

The fee-sharing agreement among Class Counsel consists of three documents, the Counsel

Participation Agreement and two other agreements, which are exhibits to the Participation Agreement.

All three documents are attached hereto as Exhibit A. For ease of reference, these documents are

collectively referred to herein as the “Participation Agreement.”

16

Under the Settlement Agreement, counsel representing Track B claimants are entitled to negotiate

contingency agreements with their clients, at a fee of not more than an 8% contingency. Settlement

Agreement § II.QQ. Contingency fees earned by counsel for their successful work on Track B claims,

while paid from the successful claimants’ awards, will reduce the amount of the Common Benefit Fee for

Class Counsel. Settlement Agreement §§ II.N, V.E.10. Thus, if the Court makes an award of $90.8

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Track A Claimants, by contrast, are entitled to the assistance of Class Counsel in preparing and submitting their claims, without any charge beyond the “percentage-of-the-fund” awarded as a Common Benefit Fee. However, the Settlement Agreement recognized that there would likely be some Class Members who would want to engage individual counsel other than Class Counsel to assist them with the preparation of claims. The Settlement Agreement permits such involvement by lawyers other than Class Counsel in the claims process, but requires that the Class Member pay for such individual representation out of his or her own funds. To protect Class Members from paying excessive fees for assistance in the claims process, the Settlement Agreement imposes a 2% cap on contingency fees charged by such non-Class Counsel. Settlement Agreement, § X.A.
E. The Claims Resolution Act of 2010 Following the execution of the initial version of the Settlement Agreement on February 18, 2010, Class Counsel engaged in substantial efforts advocating for Congress to satisfy the funding requirement of the Settlement and thus provide the necessary additional funding to afford meaningful relief for farmers with meritorious claims (even if it did not provide sufficient funding to pay all successful claimants the full amount of relief authorized by Section 14012). These advocacy efforts involved more than 1,000 hours of attorney time and included numerous briefings and discussions over many months with Members of Congress and their staffs. After several attempts to appropriate additional funds fell short, Congress, on November 30, 2010, finally passed the Claims Resolution Act of 2010 (“CRA”),17 which provided an

million for fees and expenses (i.e., 7.4% of the Settlement Fund Fee Base) and the total amount of contingency fees paid by successful Track B claimants totals $100,000, then the Common Benefit Fee that would be allocated among Class Counsel would be reduced by $100,000 to $90.7 million. That said, the number of complete Track B claims submitted during the claims period is relatively low, and Class Counsel do not presently expect the reduction for Track B fees to be substantial.

17

Pub. L. No. 111-291, 124 Stat. 3064, 3070 (2010).

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additional $1.15 billion to fund the Settlement that the Parties had negotiated. This Act, which the President signed into law on December 8, 2010, specifically provided that these additional funds are intended “to carry out the terms of the Settlement Agreement,” and expressly conditioned the availability of these funds on the “[S]ettlement [A]greement dated February 18, 2010 (including any modifications agreed to by the parties) [being] approved by a court order that is or becomes final and nonappealable.” CRA §§ 201(a), 201(b).
The language of the CRA also made clear that the additional $1.15 billion that was appropriated is the maximum amount of funds that would be appropriated for the payment of Section 14012 claims. Specifically, the Act deleted two sections of the Farm Bill: original Section 14012(i)(2), which had “authorized to be appropriated such [additional] sums as are necessary to carry out [Section 14012],” and original Section 14012(j), which required reports on the depletion of the first $100 million, presumably so that Congress could determine whether additional appropriations were warranted. CRA §§ 201(f)(4)(B), 201(f)(5).
The CRA also included several provisions aimed at promoting the integrity of the claims process and deterring potential fraud in the process. For example, the Act required that: (1) the Neutrals be approved by the Secretary of Agriculture, the Attorney General, and the Court, and be administered “oaths of office” by the Court before adjudicating claims; (2) the Neutrals be authorized under certain conditions to require claimants to provide additional documentation; (3) attorneys filing claims on behalf of claimants certify that, to the best of their knowledge, information, and belief, the claims they submit “are supported by existing law and the factual contentions have evidentiary support”; and (4) the General Accounting Office and the USDA Inspector General undertake certain reviews and/or audits relating to the claims process. CRA §§ 201(g), 201(h).
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F. This Court’s Approval of the Settlement Agreement With the $1.25 billion contemplated in the Settlement Agreement secured, on March 30, 2011, Class Counsel moved this Court to grant preliminary approval of the Settlement Agreement and to certify a Settlement Class. See Docket No. 161. This filing detailed the history underlying the Pigford case, Section 14012, and the Settlement Agreement, the mechanics of the Settlement Agreement and the proposed claims process, and how the Settlement Agreement met Congress’s “remedial purpose of giving a full determination on the merits for each Pigford claim previously denied that determination.” § 14012(d). After the Parties’ made several modifications to the Settlement Agreement to address issues raised by the Court (see Docket Nos. 170, 171), the Court preliminarily approved the Settlement Agreement on May 13, 2011. See Docket No. 172. Pursuant to Federal Rule of Civil Procedure 23(c)(2), Class Counsel subsequently drafted notice materials for the putative Class, and distributed this notice through an extensive and coordinated notice program that combined direct mailings to putative Class members, television and radio advertising, print media, earned media, and online outreach. See Docket No. 187, Ex. 3 (detailing notice program). As required under Federal Rule of Civil Procedure 23, this notice provided the opportunity for putative Class members to object to the Settlement and to appear at the Fairness Hearing convened by the Court on September 1, 2011. Twenty-five individuals or entities filed “objections” to the Settlement.18 Class Counsel responded to each in turn, both in writing and at the Fairness Hearing. See Docket No. 191. Class Counsel also filed a motion seeking final approval of the Settlement Agreement notwithstanding the objections that were submitted. See Docket No. 187. Ultimately, after consideration of Class Counsel’s motion and the arguments of

18

Many of the “objections” were not really objections at all, but rather were requests to participate in the non-

judicial claims process created by the Settlement Agreement.

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objectors, this Court, on October 27, 2011, issued a Final Approval Order and Opinion approving the Settlement Agreement in full.
G. The Claims Process Approved by This Court Under the Court’s Final Approval Order, Class Counsel’s post-settlement obligations are both extensive and manifold. Most significantly, Class Counsel agreed to provide individual and in-person assistance, without additional charge, to all Class Members electing to submit claims under Track A who requested the assistance of counsel. Settlement Agreement § VIII.A.2. Even before this Court approved the Settlement Agreement, Class Counsel had devoted substantial time to planning for the proposed claims process, including designing and testing a claims preparation and submission process to enable Class Counsel to provide personalized assistance to tens of thousands of Class Members located across the country. To help ensure that all lawyers involved in the claims assistance process had the necessary expertise, Class Counsel conducted a number of training sessions for the lawyers and paralegals participating in the claims review and submission process. These training sessions included a live presentation to more than 50 lawyers and paralegals held in Washington, D.C., and several subsequent webinars and group telephone conferences designed not only to instruct those participating about the substantive law and underlying USDA farm loan programs at issue in the case, but also to develop and refine the procedures to be used during the claims assistance process. Class Counsel enlisted the assistance of the Farmers Legal Action Group (“FLAG”) to prepare training materials and assist in educating the lawyers who were to participate in the claims assistance process. FLAG made a live presentation to Class Counsel and also videotaped their training session so that lawyers who were unable to attend the live training session would have the benefit of that training. Class Counsel’s training efforts commenced even before the Court approved the Settlement and continued throughout the claims submission period.
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On November 10, 2011, following the entry of the Final Approval Order, this Court

issued an Order establishing a claims submission period under the Settlement Agreement from

November 14, 2011 to May 11, 2012. Docket No. 233. In order to be able to provide in-person

assistance to the more than 84,000 potential Class Members who had been mailed Claim Forms

by the Claims Administrator, Class Counsel conducted 384 group meetings in 23 states and the District of Columbia during this 180-day claims period.19 Through these meetings, more than

94% of putative class members had the opportunity to meet in-person with Class Counsel within

50 miles of their homes, and more than 97% of putative Class Members had the opportunity to

meet in-person with Class Counsel within 75 miles of their homes. These group meetings were

staffed by multiple attorneys (sometime as many as 10) to ensure that each and every Class

Member who attended such a meeting would have the opportunity to meet individually and in-

person with an attorney for the purpose of preparing a Claim Form. In addition, to ensure that

each of these group meetings was run efficiently, Class Counsel provided paralegals and

substantial support staff at all of these meetings to provide logistical assistance to the claimants

and Class Counsel.

Class Counsel also provided in-office assistance in Jackson, Mississippi, Birmingham

and Selma, Alabama, Durham, North Carolina, and Columbia, South Carolina, and established a

toll-free line that enabled any Class Members who were unable to attend the in-person meetings

to obtain claims assistance by telephone.

All told, during the 180-day Claim Period, Class Counsel met in person or by phone with

more than 25,000 claimants, and signed Claim Forms for more than 13,000 of these claimants.

In addition, during this same period, Class Counsel provided substantive claims assistance by

19

Class Counsel are continuing to conduct meetings and provide claims assistance at the present

time to the categories of additional claimants that the Court has authorized to submit claims after May 11,

2012. See Settlement Order (Sept. 14, 2012) (Docket No. 304).

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telephone to more than 3,400 additional Class Members, of which more than 2,700 submitted Claim Forms. Of course, in addition to the tens of thousands of hours spent in providing this claims assistance to Class Members, Class Counsel have also spent substantial time responding to questions from Class Members and others who seek to participate in the claims process regarding the overall claims process, the status of their individual claims, and the distribution of funds.
In addition to the considerable efforts undertaken by Class Counsel to ensure that all Class Members could, if they wished, meet personally with Class Counsel at locations reasonably close to Class Members’ homes, Class Counsel also worked tirelessly to ensure that such meetings were run smoothly and efficiently and provided Class Members with a meaningful opportunity to receive advice of counsel. Class Counsel continuously monitored the claims assistance process throughout the claims period, taking feedback from participants, farm advocacy groups, and the Court-appointed Ombudsman, and using that information to make adjustments to improve the claims assistance processes and procedures as necessary.
In considering the benefit to the Class provided by Class Counsel, it is important to emphasize that Class Counsel’s contribution extends beyond a quantitative assessment of the hours worked. Among other things, Class Counsel are required by the Claims Resolution Act of 2010 (“CRA”) to fulfill the “integrity” requirements of the claims process imposed by Congress in the CRA, the requirements of which have been incorporated into the Settlement Agreement. Under these provisions, Class Counsel were (and are) required to verify that, to the best of their knowledge, information, and belief, any claim they submit on behalf of a claimant “[is] supported by existing law and the factual contentions have evidentiary support” – a determination that has required careful preparation and detailed discussion with each claimant.
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Settlement Agreement § V.A.1.c; CRA § 201(g)(5). In addition, Class Counsel have been required to ensure that the processes and procedures of the claims process were robust enough to meet the standards of the General Accounting Office and the USDA Inspector General, who, pursuant to the Claims Resolution Act, are obligated to undertake certain reviews and audits relating to the claims process. CRA § 201(h). Despite the large volume of claims processed and number of meetings conducted, Class Counsel respectfully submit that the claims process in this case has satisfied these standards.
H. Class Counsel’s Additional Implementation Efforts Class Counsel also have continued to spend substantial time since the conclusion of the claims submission process addressing a wide range of settlement implementation issues. These issues include working with the Ombudsman’s Office to address particular claims-related issues, addressing numerous issues raised by the Claims Administrator, meeting with the Court, preparing a Motion to Modify the Court’s October 27, 2011 Order to enable certain categories of claimants who did not submit claims prior to the May 11, 2012 Claim Deadline to have their claims adjudicated (Docket No. 300), responding to requests from the General Accounting Office and the USDA Inspector General’s Office, coordinating the payment and reporting of interim settlement implementation costs to the Claims Administrator, the Track A Neutral, and others, and responding to inquiries from Class Members. In addition, Class Counsel litigated, and ultimately successfully obtained dismissal of, three appeals before the D.C. Circuit challenging the Court’s Final Approval Order and Opinion. See D.C. Circuit Case Nos. 11-5326, 11-5334, 12-5019. Finally, Class Counsel continues to be actively engaged in ensuring the fairness, integrity, and efficiency of the claims process and the overall settlement implementation, and
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anticipates continuing this work until all meritorious claimants are successfully paid and the settlement implementation is completed.
I. The Efforts of Class Counsel The work effort of Class Counsel in this case leading to the Court’s approval of the Settlement Agreement was enormous by any standard. The firms comprising Class Counsel reported to Lead Class Counsel in excess of 40,000 attorney hours and 60,000 paralegal hours spent prior to the Court’s October 27, 2011 Final Approval Order. Since Final Approval, Class Counsel have reported to Lead Class Counsel that they have devoted more than 40,000 additional attorney hours and more than 100,000 additional paralegal hours in assisting Class Members with their claims and otherwise implementing the claims process approved by this Court.20 As noted above, this work remains ongoing, and therefore these numbers will continue to increase. J. Class Counsel’s Out-of-Pocket Expenses In addition to the tens of thousands of lawyer and paralegal hours for which Class Counsel have received no compensation to date, Class Counsel have also incurred and advanced substantial out-of-pocket costs over this period of time (including transporting attorneys, paralegals, and support staff to attend claims preparation meetings across the country, renting facilities, operating a call center to answer questions from Class members, and an array of other costs). Two firms in particular, the Law Offices of James Scott Farrin (the “Farrin firm”) and Morgan and Morgan, P.A. the “Morgan firm”) together have expended and/or incurred payment obligations of several million dollars in support of this litigation. Under the Settlement

20

Should the Court want more detailed information regarding the hours worked by Class Counsel

both leading up to the Court’s Final Approval Order and in the implementation of that Order, Class

Counsel will provide such information in such form as the Court may direct.

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Agreement, Class Counsel will not be able to recoup these considerable costs and expenses until the entire claims process is completed and all claimants are paid.21
In light of the enormous effort expended, the risk assumed, and the extraordinary results obtained for the Class in this case, Class Counsel respectfully submit that they have earned the full 7.4% of the Settlement Fee Base requested in this Motion, and request that the Court award attorneys’ fees accordingly. III. ARGUMENT
A. The Court Should Use the “Percentage-of-the-Fund” Method to Determine Fees in This Case.
Unlike in Pigford and most other civil rights class actions, there is no statutory basis for an award of attorneys’ fees in this case. Thus, the only basis for compensating Class Counsel in this case is by means of a common fund. See Swedish Hospital Corp. v. Shalala, 1 F.3d 1261, 1265 (D.C. Cir. 1993) (citing Sprague v. Ticonic Nat’l Bank, 307 U.S. 161 (1939)). The Common Fund doctrine, which has long been recognized in equity, allows “a litigant or lawyer who recovers a common fund for the benefit of persons other than himself or his client” to recover “a reasonable attorney’s fee from the fund as a whole,” rather than having all fees borne by the representative plaintiff or his counsel. Id. (citing Boeing Co. v. Van Gemert, 444 U.S. 472 (1980)). The rationale for this doctrine is that beneficiaries of the fund will be unjustly enriched by the attorneys’ efforts unless the costs of litigation are spread among them all. Boeing Co.,

21

The Settlement Agreement provides that Class Counsel will not receive the fees awarded by the

Court until after the claims of successful Class Members have been paid. See Settlement Agreement

§ V.E.10. While the Settlement Agreement allowed for a potential interim fee award to Class Counsel of

a portion of the $20 million authorized for Interim Implementation Costs, Class Counsel did not request

such an interim fee award so that the full $20 million would be available to pay the third parties (e.g.,

Epiq and JAMS) who were providing services critical to the implementation of the Settlement

Agreement.

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444 U.S. at 478; Swedish Hospital Corp., 1 F.3d at 1265; Bebchick v. Wash. Metro. Area Transit Comm’n, 805 F.2d 396, 402 (D.C. Cir. 1986).
The rule in this Circuit, established by the Court of Appeals in the Swedish Hospital case and consistently followed since then,22 is that a percentage-of-the-fund approach, rather than a lodestar approach, is the appropriate method for determining a reasonable attorneys’ fee award in common fund cases. Swedish Hospital, 1 F.3d at 1271. As the court of appeals explained in Swedish Hospital, the common fund and lodestar methods for awarding fees serve different purposes and have different rationales: the common fund method approximates the contingent fee arrangements that compensate attorneys in the market and aligns the interests of the class and counsel in achieving success, while the lodestar method used in fee-shifting cases is meant to ensure that compensation, paid by the opposing party, is available to attorneys who offer private enforcement of certain statutes even where the results obtained are modest or non-monetary. Swedish Hospital Corp., 1 F.3d at 1268-70.
The court of appeals in Swedish Hospital further reasoned that using a lodestar approach in common fund cases is undesirable because it fails to align class counsel’s interest with that of the class; encourages inefficiency (as class counsel may be incentivized to prolong litigation and bloat their hours with the understanding that their reported hours would not be challenged in a

22

See, e.g., Democratic Cent. Committee of Dist. of Columbia v. Washington Metropolitan Area

Transit Com'n, 3 F.3d 1568 (D.C. Cir. 1993); Trombly v. Nat’l City Bank, 826 F. Supp. 2d 179 (D.D.C.

2011); Radosti v. Envision EMI, LLC, 760 F. Supp. 2d 73 (D.D.C. 2011); In re Dept. of Veterans Affairs

(VA) Data Theft Litig., 653 F. Supp. 2d 58 (D.D.C. 2009); Wells v. Allstate Ins. Co., 557 F. Supp. 2d 1

(D.D.C. 2008); Vista Healthplan, Inc. v. Warner Holdings Co. III, Ltd., 246 F.R.D. 349 (D.D.C. 2007);

Cohen v. Chilcott, 522 F. Supp. 2d 105 (D.D.C. 2007); Freeport Partners, L.L.C. v. Allbritton, Civ. No.

04-2030(GK), 2006 WL 627140 (D.D.C. March 13, 2006); Fresh Kist Produce, L.L.C. v. Choi Corp.,

Inc., 362 F. Supp. 2d 118 (D.D.C. 2005); In re Lorazepam & Clorazepate Antitrust Litig., MDL No.

1290, 2003 WL 22037741 (D.D.C. June 16, 2003); In re Lorazepam & Clorazepate Antitrust Litig., 205

F.R.D. 369 (D.D.C. 2002); In re First Databank Antitrust Litig., 209 F. Supp. 2d 96 (D.D.C. 2002); In re

Newbridge Networks Sec. Litig., Civ. No. 94-1678-LFO, 1998 WL 765724 (D.D.C. Oct. 23, 1998).

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truly adversarial context); and imposes greater demands on scarce judicial resources. Id. at 1268-69. By contrast, use of the percentage-of-the-fund approach in common fund cases more accurately reflects the economics of law practice, leads to better use of scarce judicial resources, and avoids substantial delay in making fee awards. Id. at 1268-70.
Finally, the court of appeals noted that a percentage-of-the-fund approach is less subjective than the lodestar approach, stating that “under the [percentage-of-the-fund approach], the court need not second-guess the judgment of counsel as to whether a task was reasonably undertaken or hours devoted to it reasonably expended.” Id. at 1270; see also Democratic Cent. Comm. of Dist. of Columbia, 3 F.3d at 1573 (noting that the percentage of the fund method was the best way to achieve the goals in common fund cases of fair and reasonable compensation, predictability, simplification, the discouragement of abuses, and fairness to the parties). Under the law of this Circuit, therefore, the percentage-of-the-fund approach is the appropriate method for setting the attorneys’ fees in this action.
The percentage-of-the fund approach in this case is also consistent with the Parties’ intent, as reflected in the Settlement Agreement. In the Settlement Agreement, the Parties agreed that “Class Counsel shall be paid Common Benefit Fees for their reasonable and compensable work on behalf of the Class” and that that amount “shall be at least 4.1% and not more than 7.4% of the Fee Base.” Settlement Agreement §§ X.B and E. Thus, a percentage-of-the-fund method in this case is warranted both by the Parties’ Agreement and by the governing law of this Circuit.
B. A Fee Award of 7.4% Is Reasonable and Justified Under the Percentage-ofthe-Fund Method in Light of the Efforts and Risks Undertaken by Class Counsel and the Results Achieved in this Case.
When determining the appropriate percentage for an award of attorneys’ fees in a percentage-of-the-fund case, courts have a duty to ensure that the overall fee award is reasonable. Swedish Hospital, 1 F.3d at 1265. In assessing the reasonableness of a fee request, the courts in
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this Circuit have generally considered the following factors: (1) the size of the fund created and the number of persons benefitted; (2) the skill and efficiency of the attorneys involved; (3) the complexity and duration of the litigation; (4) the risk of nonpayment; (5) the amount of time devoted to the case by plaintiffs’ counsel; (6) the awards in similar cases; and (7) the presence or absence of substantial objections by members of the class to the settlement terms and/or to the attorneys’ fees requested. See, e.g., Trombly, 826 F. Supp. 2d at 204; Wells, 557 F. Supp. 2d at 6-7; In re Lorazepam, 2003 WL 22037741, at *8 (citing Gunter, 223 F.3d at 195 n.1); In re Baan Co. Sec. Litig., 288 F. Supp. 2d 14, 17 (D.D.C. 2003). A review of these factors demonstrates that the 7.4% fee award Class Counsel seeks in this case is reasonable, appropriate, and warranted.
1. Class Counsel Have Obtained Substantial Benefits for the Class. As this Court has recognized, the terms of the Settlement Agreement negotiated by Class Counsel provide “enormous benefits to the [C]lass.” In re Black Farmers Discrimination Litig., 2011 U.S. Dist. LEXIS 124471, at *103. These benefits were the direct result of the intense and sustained efforts of Class Counsel in this action over the duration of the case and of Class Counsel’s effective advocacy that, together with the efforts of others, led to the $1.15 billion in additional funding for this Settlement provided by the Claims Resolution Act. The terms of the Settlement Agreement therefore confer exceptional benefits on the class and manifestly justify the fee award requested in this case. First, because the Settlement Agreement establishes a non-judicial claims process for determining the validity of claims of Class Members, the Agreement enables successful Class Members to receive their awards far more quickly than if their claims were required to be individually adjudicated by this Court, as would have been the case absent the Settlement. Indeed, but for the establishment of the non-judicial claims process, each Class Member would
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have been required to litigate his/her individual claim before a judicial officer under the formalities imposed by the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Even if this Court somehow could have found sufficient judicial resources to adjudicate the individual claims of the tens of thousands of Class Members, there can be no doubt that the process would have taken years to complete. Thus, the relative speed of the claims resolution process established by the Settlement Agreement provides a very important benefit for the Class. The importance of this benefit is particularly significant because so many of the Class Members are in the late stages of life.
Second, the Settlement Agreement significantly reduces the evidentiary burden for Class Members, as compared with the evidentiary burden they would have confronted in the absence of the Settlement Agreement. For example, while Section 14012 requires a claimant to demonstrate that a specific similarly situated white farmer had been given preferential treatment by the USDA, under the Settlement Agreement negotiated by Class Counsel, Class Members need not adduce “similarly situated white farmer” evidence in order to prevail on a Track A claim. As the Court knows, the “similarly situated white farmer” requirement presented a significant hurdle to claimants in Pigford and resulted in many members of the Pigford class being denied an award.
Class Counsel also were able to obtain, through the Settlement Agreement, the agreement of the USDA to hold off foreclosures on any loans that form the basis of the Class Members’ claims during the time Class Members’ claims are under review in the claims process. Settlement Agreement, § VI. Under Section 14012(g) of the Farm Bill, and absent the Settlement Agreement, USDA would have been required to postpone foreclosures on loans only if the claimant could make “a prima facie case in an appropriate administrative proceeding that
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the acceleration or foreclosure is related to a Pigford claim.” Under the Settlement Agreement negotiated by Class Counsel this forbearance happens automatically, without claimants having to seek foreclosure-relief in an administrative proceeding.
Beyond the substantive terms of the Settlement Agreement, the very achievement of the Settlement Agreement was critical to the 2010 appropriation by Congress of the additional $1.15 billion for the payment of claims under Section 14012. The role of the Settlement Agreement as a precondition to additional funding is made clear by the Claims Resolution Act, which expressly provided that the additional monies appropriated were conditioned upon Court approval of the Settlement Agreement in this case. CRA §§ 201(a), (b). Moreover, Section 201(c) of the CRA provides that use of the additional funds “shall be subject to the express terms of the Settlement Agreement.” Thus, but for the Settlement Agreement negotiated by Class Counsel, it is likely that only the $100 million appropriated in the 2008 Farm Bill would now be available to pay Class Members’ claims. See In re Black Farmers Discrimination Litig., 2011 U.S. Dist. LEXIS 124471, at *102 (“As the Claims Resolution Act's specific references to the settlement agreement make clear, the execution of an agreement between class counsel and defendant's counsel was a necessary catalyst leading to the appropriation of a great deal of additional funding for this litigation.”). In other words, but for Class Counsel’s successful negotiation of the Settlement Agreement, the funds available to compensate Class Members for the discrimination they suffered likely would be less than 10% of the $1.25 billion that now constitutes the Settlement Fund. Put another way, the additional funding provided by Congress as a result of Class Counsel’s successful negotiation of the Settlement Agreement will make it possible for more than ten (10) times as many Class Members to receive the full amount of the remedy established by Section 14012. Id. (“In the absence of the services of class counsel, the members
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of the plaintiffs' class would not be in a position to divide up $1.25 billion (less implementation costs); they would be engaged in a chaotic struggle to win a portion of the $100 million appropriated by the 2008 Farm Bill before those funds ran out.”).
Beyond successfully negotiating the Settlement Agreement that was the predicate for the $1.15 billion in additional Congressional funding, Class Counsel also played an active role in advocating to Congress regarding the significance of the Settlement and the need for Congress to provide the additional funding made available under the CRA. Specifically, Class Counsel engaged in numerous meetings with both House and Senate staff throughout the period following the execution of the February 18, 2010 Settlement Agreement, particularly in the weeks leading up to the passage of the CRA. Class Counsel also played an active role in developing statutory language that ultimately was included in the CRA.
In all, the Settlement negotiated by Class Counsel and the funds Class Counsel helped secure to effectuate the Settlement provide Class Members with an array of substantial benefits that will enable Class Members with meritorious Section 14012 claims to obtain relief much more quickly, and to do so with a significantly reduced evidentiary burden and a far greater chance at meaningful recovery on meritorious claims. These substantial benefits fully support Class Counsel’s request for a fee of 7.4% of the Settlement Fund Fee Base.
2. Class Counsel Have Demonstrated Considerable Skill and Efficiency. As this Court has noted, this case [i]nvolve[d] a wide range of complicating factors [beyond what is typically seen in a civil rights case]. In re Black Farmers Discrimination Litig., 2011 U.S. Dist. LEXIS 124471, at *107. These factors include “an enormous, geographically dispersed plaintiffs' class numbering in the tens of thousands; a multitude of individual claims predicated at least in part upon unique facts and upon events that may have occurred as much as 30 years ago; an authorizing statute never interpreted by a court; a dizzying array of relevant
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statutory and regulatory provisions affecting the validity of claims as to both liability and damages; a large number of potential class members who are highly suspicious of both attorneys and the government; and intense scrutiny by Congress, the executive branch, and the press.” Id. To meet these challenges, navigate these obstacles, and manage this complex process has required considerable skill and efficiency from a team of Class Counsel possessing diverse backgrounds and skill sets.
First, the Court appointed as Lead Class Counsel three highly experienced attorneys: Andrew H. Marks of Crowell & Moring LLP in Washington, D.C., Henry Sanders of Chestnut, Sanders, Sanders, Pettaway & Campbell, L.L.C. in Selma, Alabama; and Gregorio A. Francis of Morgan & Morgan, P.A. in Orlando, Florida. These lead counsel combine considerable experience in class actions and large case management, as well as, in the case of Mr. Sanders, invaluable experience from his work in the Pigford case.
In addition to Lead Class Counsel, the Court appointed as Class Counsel a number of other attorneys who have significant experience with national class actions and/or significant trial experience and who have been able to advocate effectively for Class Members in the claims process contemplated by the Settlement Agreement. Included among this group are four additional counsel, David J. Frantz, Phillip A. Fraas, Faya Rose Toure (Sanders), and Anurag Varma, who were extensively involved in Pigford and who have brought to the present case both considerable knowledge of USDA farm loan programs and their institutional knowledge of the Pigford case.
Without the experience and expertise of Class Counsel, Plaintiffs would not be in the favorable position that they are today. The institutional knowledge of the Pigford case held by several of Class Counsel was necessary for Counsel to be able to understand the unique issues
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presented in this case, to identify potential pitfalls, and to develop strategies to resolve those issues in light of the lessons learned from Pigford. Andrew H. Marks, Laurel Pyke Malson, and other lawyers with Crowell & Moring have provided significant experience litigating with the Department of Justice, knowledge regarding this Court and its procedures, and the legal acumen to tackle many of the complex legal and ethical issues presented by this case. Mr. Marks, Ms. Malson, and J. Andrew Meyer of Morgan & Morgan, P.A. have also brought to bear extensive appellate experience, particularly within the D.C. Circuit, which was used in successfully defending against three appeals of the Final Approval Order. In addition, having experienced class action specialists as a part of the group has ensured that Class Members have had full knowledge and protection of their rights under of Federal Rule of Civil Procedure 23, and made sure that a process is in place to ensure that the funds allocated to pay Section 14012 claims will be distributed fairly.
The Law Offices of James Scott Farrin has provided significant sophistication and expertise in designing, implementing, and ensuring the proper execution of the claims assistance process that has served so many Class Members throughout the nation in locations within a reasonable distance of where they live.23 The Farrin firm has been instrumental in developing procedures and training support personnel to handle the enormous volume of work required during the claims assistance process in an efficient and fair manner. In addition, the Farrin firm has been largely responsible for communicating with the tens of thousands of Class Members and others seeking information about the status of the case, the Settlement, Congressional

23

Eric J. Sanchez with the Farrin firm analyzed the longitude and latitude of the claimants’

residential zip codes and imported this data into a database that he programmed from scratch. From this

database, he was able to develop a comprehensive meeting schedule that was adjusted throughout the

claims process based on information received from the Claims Administrator. This database also allowed

for detailed reporting by Class Counsel to the Court and the Ombudsman on the progress and

effectiveness of the claims process.

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funding, and the claims process, as well as assisting many individual claimants. Finally, as noted above, Class Counsel’s advocacy skills also played a significant role in generating the additional $1.15 billion in settlement funding provided by the Claims Resolution Act.
In short, without the experience and expertise of all of the Class Counsel firms working together on the various facets of this case, Class Members would not be in the position to finally receive the adjudication of their Pigford claims that they have sought for so long. Moreover, a high degree of coordination and cooperation among the various firms appointed as Class Counsel was required to plan and implement such a large claims assistance process. Such coordination and cooperation is a testament to the skill and professionalism of Class Counsel. This factor, therefore, also supports the request for a 7.4% fee award in this case.
3. The Complexity and Duration of this Case Support Class Counsel’s Fee Request.
The approval by the Court of the Settlement was the culmination of nearly three years of litigation and intensive negotiations between the Parties, and many more years of advocacy to Congress and the Executive Branch by some of the lawyers who are Class Counsel, and by black farmer organizations and others. The complexity of the Settlement Agreement that was reached demonstrates the skill level required by counsel to establish terms that would ensure that the claims of the Class Members are resolved fairly, efficiently, and with integrity.
For the better part of two years, counsel for the Plaintiffs in the array of cases consolidated by this Court in In re Black Farmers Discrimination Litigation vigorously pursued the claims of the tens of thousands of their individual clients who had retained them to pursue claims under Section 14012. These efforts included extensive briefing on class certification, coordination of case management, and intensive, arms-length settlement negotiations. Over the course of this extended period, the Parties exchanged 20 or more comprehensive settlement
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drafts, held numerous face-to-face negotiation sessions, and participated in many more conference calls to hammer out the terms of the initial Settlement Agreement that was executed by the Parties on February 18, 2010. These negotiations were carried out by experienced, capable counsel, including more than 20 law firms on the Plaintiffs’ side and a highly experienced team of Department of Justice and USDA lawyers on the other side.
Even after the parties reached that initial Settlement Agreement, Class Counsel were required to continue to negotiate changes to the Agreement, first in response to suggestions from the Court, and second in response to requirements imposed by Congress in the Claims Resolution Act. These additional negotiations, which resulted in a number of significant changes to the Settlement Agreement, also required a high level of skill by Class Counsel in order to accommodate new requirements into the existing structure of the Agreement.
In addition, as noted earlier, following execution of the initial version of the Settlement Agreement on February 18, 2010, Class Counsel turned their efforts toward advocating for Congress to satisfy the funding contingency of the Settlement, and helped secure $1.15 billion in additional funding to afford meaningful relief for Pigford claimants with meritorious claims.
Class Counsel also devoted substantial efforts to developing a claims assistance process that was able to fairly and efficiently provide claims assistance to more than 25,000 Class Members (and had the capacity to handle thousands more) and ensure that the claims of these Class Members were processed and submitted within the 180-day Claims Period established by the Court. To meet this challenge, Class Counsel were required to assemble a large team of lawyers, paralegals, and administrative staff to assist claimants in preparing and submitting claims. It required considerable skill to marshal these resources and develop practices and
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procedures in order to implement a fair and efficient claims process that also addressed the claim integrity issues raised by Congress in the CRA.
The geographic dispersion of potential claimants across the United States also added considerable complexity to the task Class Counsel faced in the claims assistance process. Initial client outreach and case screening in this case required substantial time and expense by Class Counsel because claimants are located in dozens of states and in hundreds of communities throughout these states. Ongoing communications with clients and claimants during the litigation and settlement phases of the case were also more difficult because of this fact. This geographic dispersion of Class Members posed significant challenges to Class Counsel throughout the Claim Period. In order to provide the tens of thousands of Class Members around the country with a reasonable opportunity to obtain in-person claim assistance from Class Counsel, Class Counsel conducted more than 380 group meetings in 66 cities across 23 states and the District of Columbia. See https://www.blackfarmercase.com//Meetings.aspx (last visited Sept. 24, 2012) (containing a full list of meetings held and their locations). To schedule all of these meetings during the 180-day Claim Period, Class Counsel often conducted group meetings simultaneously in multiple locations. The logistics involved in coordinating and staffing these planned meetings presented enormous challenges. Only through Class Counsel’s expertise and efficiency were they able to meet this challenge.
Moreover, the USDA farm loan programs that underlie Class Members’ discrimination claims are complicated. Class Counsel needed significant expertise in this area in order to effectively and efficiently advise Class Members of their rights, and to assist them in preparing tens of thousands of Claim Forms. This expertise was particularly necessary for Class Counsel in light of Congress’s requirement that attorneys submitting a claim under the Settlement sign
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that Claim Form under penalty of perjury attesting that to the best of counsel’s knowledge, information, and belief, the claim is “supported by existing law and the factual contentions have evidentiary support.” CRA § 201(g)(5). To help ensure that all lawyers involved in the claims preparation process had the necessary expertise, Class Counsel conducted training sessions for all of the lawyers and paralegals participating in the claims review and submission process to educate them about, among other things, the USDA farm loan programs that are at issue in this case. The complexity of this case therefore manifestly supports the 7.4% fee award requested.
The duration of this case further supports the fee requested by Class Counsel in this case. Class Counsel have reported more than 80,000 attorney hours and more than 160,000 paralegal hours over a period of more than five years in litigating these cases and implementing the Claims Process. As noted above, Class Counsel have also expended and/or incurred obligations of millions of dollars in support of these efforts, with no compensation to date for any of this work or any reimbursement of any of these costs and expenses. Indeed, Class Counsel will not receive any compensation at all until the entire claims process is completed and all successful Class Members receive their awards. See Settlement Agreement § V.E.10.
4. Class Counsel Have Faced a Significant Risk of Non-Payment. As this Court recognized in its Final Approval Opinion, “[w]hen they became involved in this litigation, class counsel . . . assumed a substantial risk that their efforts would never yield much in the way of fees.” In re Black Farmers Discrimination Litig., 2011 U.S. Dist. LEXIS 124471, at *109. When the various lawyers who are now Class Counsel first accepted clients with Section 14012 claims, they did so under traditional contingency fee contracts that would have provided compensation to the attorneys only in the event of a successful recovery. A recovery in any particular case was far from guaranteed at that time, however, as several significant obstacles potentially stood in the way of success. First, most lawyers retained
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by individual claimants could not be certain whether, at the end of the day, such claimants would qualify as a “Pigford claimant” under Section 14012. Thus, the filing lawyer faced a significant risk that any work performed on behalf of a particular claimant would be uncompensated. Next, without the Settlement Agreement, each individual claimant likely would be required by Section 14012 to present “similarly situated white farmer” evidence. While Section 14012, as originally enacted, required the USDA to provide such information to the claimant, there was no guarantee that the USDA had retained such information so that it could be made available, and no guarantee even if such information were available that it would establish a valid claim. Other evidentiary difficulties made recovery for the lawyers uncertain, as well. For instance, the USDA often did not retain information regarding loan denials prior to 1999, thereby potentially requiring claimants to rely upon the testimony of witnesses who might now be deceased or unable to remember the events of so long ago. In light of these difficulties, there was significant risk to counsel in any individual case that the claimant would be unsuccessful on the merits and that counsel therefore would receive no compensation for their work on behalf of such claimants.
Even if counsel had been able to present a meritorious case on behalf of an individual claimant, in the absence of the Settlement Agreement there was significant risk that there would not be sufficient funds available to pay the claimant and hence to pay counsel. As discussed above, at the time Class Counsel filed these cases, Congress had appropriated only $100 million to fund the payment of all successful Section 14012 claims. This $100 million fund would have been woefully inadequate to pay all expected claims and thus presented the significant risk that either all successful claimants would receive only a small award, or that thousands of successful claimants would receive no award at all. Accordingly, prior to Class Counsel’s work in negotiating the settlement and advocating to Congress for additional funding, there was
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significant risk to counsel that there would be little or no money available from the initial $100 million fund to pay any recovery to a particular claimant or to that claimant’s lawyer. As this Court noted in its Final Approval Opinion:
There has never been any guarantee that Congress would appropriate additional funding for the adjudication and payment of Section 14012 claims. . . . If available funding had remained capped at $100 million, the more than forty attorneys now acting as class counsel would have been left to scramble for any fees that could be eked out of a fund vastly insufficient to pay all claims against it, and the payment of any fees that were forthcoming may have been delayed for years. This litigation was no sure bet for plaintiffs' lawyers. In re Black Farmers Discrimination Litig., 2011 U.S. Dist. LEXIS 124471, at *109-110. Absent settlement, Class Counsel also faced the considerable risk that the Court may have denied Plaintiffs’ motion to certify a class and required individual litigation of each claim. Indeed, in several other cases alleging discrimination by USDA brought by other protected classes, the courts involved have refused to certify a class. See, e.g., Love v. Veneman, 224 F.R.D. 240 (D.D.C. 2004), aff’d sub nom Love v. Johanns, 439 F.3d 723 (D.C. Cir. 2006) (denying class certification for women farmers); Garcia v. Veneman, 224 F.R.D. 8 (D.D.C. 2004), aff’d sub nom Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006) (denying class certification for Hispanic farmers). In the absence of class certification, any particular claimant would have faced substantial risk of non-recovery for the reasons discussed above, and that claimant’s lawyer, therefore, would have faced a corollary risk. Finally, even after entry into the Settlement Agreement, Class Counsel faced the risk that the Court would not approve the Settlement Agreement, or that an approval by this Court might be overturned on appeal. Indeed, before preliminary approval of the Settlement by the Court, Class Counsel had to make modifications to the Settlement to assure the Court that the Settlement was fair, reasonable, and adequate, and that sufficient safeguards were in place to
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protect Class Members during the non-judicial claims process. See Docket Nos. 170, 171.

Before final approval, Class Counsel also needed to address and allay any concerns of the Court

regarding an array of objections submitted for consideration at the Fairness Hearing. See Docket

No. 191. Since final approval, Class Counsel have had to defend and successfully obtain the

dismissal of three appeals of the Final Approval Order before the D.C. Circuit. See D.C. Circuit

Case Nos. 11-5326, 11-5334, and 12-5019.

In short, Class Counsel have faced a significant threat of non-payment throughout this

case, and yet have persevered and devoted tens of thousands of hours and expended millions of

dollars to obtain for the Class a demonstrably beneficial outcome. This factor, too, favors

awarding attorney’s fees equal to 7.4% of the Settlement Fund Fee Base.

5. The Objections to the Settlement Have Been Minimal. In light of the tens of thousands of potential claimants who were mailed Claim Forms by

the Claims Administrator in this case, the complexity of the Settlement Agreement, and the

amount of money involved, the fact that only 25 “objections” to the Settlement were filed confirms that Class Counsel have obtained a substantial benefit for the Class.24 The fact that

Class Counsel received fewer than 25 individual responses to their Motion for Preliminary

Approval of the Settlement Agreement (counting collectively the Thedford Rowser-Bey form

letters discussed in Docket No. 191, at 5 n.14) – only a handful of which contain actual

objections – from a putative class of more than 60,000 black farmers is a strong indication that

the Class is strongly supportive of the Settlement Agreement. See In re Cardizem CD Antitrust

Litig., 218 F.R.D. 508, 527 (E.D. Mich. 2003) (“That the overwhelming majority of Class

Members have elected to remain in the Settlement Class, without objection, constitutes the

24

Indeed, at least 11 of these “objections” were not really objections at all but rather were either

requests to participate in the Fairness Hearing or requests to participate in the claims process., See

Plaintiffs’ Response to Objections to the Settlement, Docket No. 191, at 6.

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‘reaction of the class,’ as a whole . . . .”). This support and validation of Class Counsel’s efforts provides additional support for a fee award of 7.4% of the Settlement Fund Fee Base for Class Counsel in this case.
6. Class Counsel Are Committed to Devoting Significantly More Time and Effort in the Implementation of the Settlement for as Long as the Process Takes.
Although Class Counsel already have reported more than 80,000 attorney hours and 160,000 paralegal hours worked on this case already, Class Counsel’s efforts on behalf of the Class are not over. Even in the last several weeks, Class Counsel prepared and filed a motion to modify the Court’s Final Approval Order to permit limited categories of claimants with exceptional circumstances, who would have otherwise been denied the opportunity, to participate in the claims process (Docket No. 300). Now that the Court has granted that motion (Docket No. 304), Class Counsel are providing claims assistance to the additional Class Members whom the Court has allowed to file and/or supplement their previously-filed claims. Class Counsel are also actively engaged with the GAO and the USDA Office of the Inspector General to ensure they have the materials and information they need to fulfill their reporting and auditing obligations under Section 201(h) of the Claims Resolution Act. Class Counsel also continue to work with the Claims Administrator to keep Section 14012 claimants apprised of progress in the case, and they continue to engage with the Ombudsman to ensure that the adjudication process is proceeding fairly and efficiently. Finally, Class Counsel are working to support the payment process that will come shortly for meritorious claimants, including preparing a request for proposal and evaluating submissions received for designated banks, coordinating with the Claims Administrator on the logistics of payment, and ensuring that sufficient communications mechanisms are in place so that claimants understand the claim determinations they will be receiving. Class Counsel recognize that the Settlement Agreement, while an historic
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achievement, is not an ultimate success until meritorious claimants receive the compensation they are owed on their claims, and Class Counsel are committed to devoting whatever additional time and effort is necessary going forward to bring the claims and payment process to a successful conclusion.
7. The Award Sought in this Case Is Reasonable When Compared to Fee Awards in Similar Cases.
The 7.4% fee award Class Counsel seek in this case is demonstrably reasonable and, in fact, falls below the range typically awarded in common fund cases. The majority of fee awards in common fund cases in the D.C. Circuit, as well as nationally, fall within a 20% to 30% range, with 25% often used as a benchmark. See Swedish Hospital Corp., 1 F.3d at 1263, 1272 (affirming an award of 20% of the common fund and noting that “a majority of common fund class action fee awards fall between twenty and thirty percent”); In re Dep’t of Veterans Affairs (VA) Data Theft Litig., 653 F. Supp. 2d at 61 (“[t]he majority of fee awards nationally appear to fall in a range of 20 percent to 30 percent of the common fund”); Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047-1048, 1050 n.4 (9th Cir. 2002) (summarizing fees awarded in 34 common fund settlements from 1996-2001 and noting that the benchmark award in the Ninth Circuit is 25%); 4 Alba Conte and Herbert Newberg, Newberg on Class Actions § 14.6 at 568 (4th ed. 2002) (noting that many courts apply a benchmark of 25% of the award); see also Trombly, 826 F. Supp. 2d at 204-07 (25% fee award); Radosti, 760 F. Supp. 2d at 78-79 (33% fee award); In re Lorazepam, 2003 WL 22037741, at *7-8 (30% fee award); In re Baan Co. Sec. Litig., 288 F. Supp. 2d at 17-21 (28% fee award); In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., 851 F. Supp. 2d 1040, 1080-81, 1086 (S.D. Tex. 2012) (20% fee award); In re Puerto Rican Cabotage Antitrust Litig., 815 F. Supp. 2d 448, 461, 464 (D.P.R. 2011) (23% fee award). Indeed, the Court in one case in this Circuit awarded fees of 45% of the common fund.
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See Wells, 557 F. Supp. 2d at 6-8. In view of these typical benchmarks, Class Counsel’s request of an award totaling 7.4% of the Settlement Fund Fee Base is manifestly reasonable.
While the courts in some larger recovery cases have awarded common fund fees below the 20-30% range, even in these so-called “mega-fund” cases the fees awarded are commonly in the range of 15% or more. See In re Lorazepam, 2003 WL 22037741, at *7 (citing Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942, 989 (E.D. Tex. 2000) (surveying cases)); see also Silverman v. Motorola, Inc., No. 07-C-4507, 2012 WL 1597388, at *4 (N.D. Ill. May 7, 2012) (27.5% fee award from settlement fund of $200 million); In re Lease Oil Antitrust Litig., 186 F.R.D. 403, 443-448 (S.D. Tex. 1999) (25% fee award from fund of more than $190 million); In re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465, 470 (S.D.N.Y. 1998) (14% fee award from fund of $1 billion); In re Combustion, Inc., 968 F. Supp. 1116, 1136-40 (W.D. La. 1997) (36% fee award from fund of $127 million); In re Enron Corp. Sec., Derivative, and ERISA Litig., 586 F. Supp. 2d 732, 740, 828 (S.D. Tex. 2008) (approving award equal to 9.52% of $7.2 billion fund).
It is also noteworthy that the 7.4% fee Class Counsel are requesting in this case is less than the 8% percentage fee awarded to Class Counsel by Judge Sullivan last year in Keepseagle v. Vilsack, Case No. 99-cv-3119, which involved a settlement fund of $760 million dollars, and a claims process which resulted in approximately 3,700 claims filed by Class Counsel, as compared to the more than 13,000 claims filed by Class Counsel here. As this Court is aware, Keepseagle involved discrimination claims by Native American farmers much like the discrimination claims asserted by black farmers in the current case. Indeed, the Keepseagle settlement agreement approved by Judge Sullivan was modeled on the Settlement Agreement
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now before the Court in this case. The similarity of Keepseagle to the current case makes the 8% fee percentage awarded in that case particularly relevant here.
8. The Award Sought in this Case Is Also Reasonable When CrossChecked Against Lodestar.
While Swedish Hospital makes clear that this Court need not and should not engage in a traditional lodestar analysis when determining a reasonable fee in this case, a lodestar “crosscheck” confirms that a 7.4% fee award is wholly reasonable and appropriate in this case. Class Counsel’s fee request is for 7.4% of the Settlement Fund Fee Base (see n.4, supra). This translates to a fee request of approximately $90 million. As noted above, Class Counsel have already reported more than 80,000 attorney hours and more than 160,000 paralegal hours in connection with the cases that are the subject of the Settlement Agreement. If the Court were to apply rates from the “Laffey Matrix” to the hours of work already performed by Class Counsel, the result would be a lodestar of approximately $50 million. Thus, an award of 7.4% of the Settlement Fund in this case would equate to a multiplier of less than 2 times the total lodestar Class Counsel already have devoted to this case. Moreover, this multiplier does not take into account the millions of dollars of expenditures that Class Counsel have made both before and during the Claims Process.
The 7.4% fee request in this case is wholly reasonable in light of this lodestar multiplier analysis. Fees awarded pursuant to the common fund doctrine frequently represent multiples of up to 4 times the lodestar. See In re Lorazepam, 2003 WL 22037741, at *9 (observing that “multiples ranging up to four are frequently awarded in common fund cases”) (citing In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 341 (3d Cir. 1998)); Wal-Mart Stores, Inc. v. VISA USA, Inc., 396 F.3d 96, 123 (2d Cir. 2005) (noting that “multipliers of between 3 and 4.5 have become common” and approving a multiplier of 3.5 in mega-fund case)
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(quotation marks omitted) (citing In re NASDAQ, 187 F.R.D. at 489); Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 & n.6 (9th Cir. 2002) (approving a multiplier of 3.65 and noting that it fell within the typical range in common fund cases). Indeed, in Swedish Hospital, the D.C. Circuit approved a fee award equating to a 3.2 lodestar multiplier, substantially greater than the lodestar multiplier of less than 2 that a 7.4% fee would represent in this case. See Swedish Hospital Corp., 1 F.3d at 1263, 1272. Other courts have approved significantly higher multipliers in cases that resulted in recoveries similar to that obtained here. See, e.g., In re UnitedHealth Group Inc. PLSRA Litig., 643 F. Supp. 2d 1094, 1106 (D. Minn. 2009) (approving multiplier of 6.5 times lodestar in mega-fund settlement of $925 million); In re Enron Corp. Sec. Litig., 586 F. Supp. 2d 732, 791-803 (S.D. Tex. 2008) (approving multiplier of 5.2 times lodestar in mega-fund settlement of $7.2 billion); In re Cardinal Health, Inc. Sec. Litig., 528 F. Supp. 2d 752, 768 (S.D. Ohio 2007) (awarding multiplier of 6 times lodestar in mega-fund settlement of $600 million); In re WorldCom, Inc. Sec. Litig., 388 F. Supp. 2d 319, 358-359 (S.D.N.Y. 2005) (approving multiplier of 4 times lodestar in $6.1 billion mega-fund settlement); In re NASDAQ, 187 F.R.D. at 488-89 (S.D.N.Y. 1998) (approving lodestar multiple of 3.97 in mega-fund settlement of $1.027 billion).
A multiplier of approximately 2 in this case, therefore, falls well within – actually, significantly below – the typical range of such awards. Accordingly, when the lodestar approach is considered as a “check” on the percentage award sought herein, the reasonable multiplier that a 7.4% fee would represent, as demonstrated by the multipliers approved in other cases, further confirms the reasonableness of the fees sought by Class Counsel.
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C. A 7.4% Award Is More Favorable for Class Members Than the Rate Successful Claimants Would Have Been Obligated to Pay Under the Retention Agreements They Executed and Signed With Their Individual Counsel.
In adopting a percentage-of-the-fund analysis for common fund cases, the D.C. Circuit reasoned that such a method “more accurately reflects the economics of litigation practice.” Swedish Hospital, 1 F.3d at 1269. The court further noted that “‘[p]laintiffs’ litigation practice, given the uncertainties and hazards of litigation, must necessarily be result-oriented. It matters little to the class how much the attorney spends in time or money to reach a successful result.’” Id. (quoting Howes v. Atkins, 668 F. Supp. 1021, 1025 (E.D. Ky. 1987)). The court also noted Seventh Circuit Judge Posner’s assessment that a percentage-of-the-fund approach most closely approximates the manner in which attorneys are compensated in the marketplace for these kinds of cases. Id. As Judge Posner reasoned:
The judicial task might be simplified if the judge and the lawyers spent their efforts on finding out what the market in fact pays not for individual hours but for the ensemble of services rendered in a case of this character . . . . The class counsel are entitled to the fee they would have received had they handled a similar suit on a contingent fee basis with a similar outcome. Matter of Continental Illinois Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992). The instant case is unusual in that the Court has direct evidence of the “market” price for counsel’s services in a case of this nature. That is because, in contrast to most class action cases, we know that soon after Section 14012 was enacted into law, tens of thousands of individuals signed retention agreements with various counsel which provided for the attorneys to be compensated for their work at a 33% contingency rate. Later, at the urging of this Court, all of the lawyers who have now been appointed as Class Counsel agreed to accept a lowered percentage of 20%. Based on the 20% rate urged by the Court, it is clear that the 7.4% fee that
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Class Counsel are seeking is far more favorable for Class Members than any contingency rate they could have bargained for outside the context of this Settlement.
D. The Award of Fees to Class Counsel Should Be Directed to Lead Class Counsel to Allocate Among All Class Counsel in Accordance With the Terms of the Counsel Participation Agreement.
Class Counsel ask the Court to direct that the fees approved by this Court as part of a Common Benefit Fund be directed to the three Lead Class Counsel. As noted above, with two exceptions, the lawyers and law firms comprising Class Counsel have entered the detailed Counsel Participation Agreement that is attached hereto as Exhibit A.25
The Participation Agreement provides that any fees awarded by the Court to these firms for their work in connection with this case will be administered by Lead Class Counsel according to the terms of the Participation Agreement. The Agreement also makes Lead Class Counsel responsible for apportioning the claims preparation and submission work among all Class Counsel, and provides that the fees to be paid to each Class Counsel should be in close proportion to the overall work effort each Class Counsel will have undertaken for the benefit of the Class. The Participation Agreement also provides a mechanism for Class Counsel to seek reimbursement of certain costs associated with implementing the claims process under the Settlement Agreement for the benefit of the Class. Finally, the Participation Agreement includes a dispute resolution clause that will require any disputes regarding the allocation of fees among Class Counsel to be submitted to binding arbitration.
As Magistrate Judge Facciola noted in In re Vitamins Antitrust Litigation, in numerous class actions, courts have “directed lead counsel to apportion the attorneys’ fees awards as they deem appropriate, based on their assessments of class counsel’s relative contributions.” 398 F.

25

See supra n.14 for discussion of Lead Class Counsel’s proposal regarding the two firms that have

not joined in the Counsel Participation Agreement.

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Supp. 2d 209, 224 (D.D.C. 2005) (citations omitted).26 In adopting this approach, “these courts noted that, because lead counsel had led the cases from their inception, they were ‘better able to describe the weight and merit of each [counsel’s] contribution.’” Id. (quoting In re Linerboard Antitrust Litig., MDL No. 1261, 2004 WL 1221350, at *18 (E.D. Pa. June 2, 2004)). Such an approach makes sense “from the standpoint of judicial economy” “because it relieves the [c]ourt of the ‘difficult task of assessing counsel’s relative contributions.’” In re Linerboard Antitrust Litig., 2004 WL 1221350, at *18 (quoting In re Prudential, 148 F.3d at 329 n.96).
The Participation Agreement represents an agreement among Class Counsel that includes the relative amount of work and risk each Class Counsel firm has taken on.27 The guiding principle underlying this agreement is that the allocation of fees among counsel will be based on the work that has been performed and that will be performed for the benefit of the Class. The Participation Agreement charges Lead Class Counsel with the responsibility to ensure that work is allocated to the various firms appointed as Class Counsel to correlate with each firm’s ultimate share of any fee award. To effectuate this agreement, the Participation Agreement requires all signatory firms to maintain contemporaneous time records and to report periodically their time to Lead Class Counsel so that Lead Class Counsel can ensure each firm is contributing the agreedupon percentage of work.

26

In In re Vitamins, Chief Judge Hogan made an overall attorneys’ fee award of $123,188,032, but

initially did not rule regarding the allocation of the fee award. 398 F. Supp. 2d at 222. Subsequently,

Judge Hogan ordered class counsel to “allocate the attorneys’ fees award and expense award in a manner

which, in the opinion of [class counsel], fairly compensates respective counsel in view of their

contributions to the prosecution of Plaintiffs’ claims.” Id.

27

Following the execution of the Counsel Participation Agreement, as a result of the unique

expense burden carried in this case by the Law Offices of James Scott Farrin, the Farrin firm entered into

an agreement with the Morgan firm to reallocate 10% of the fee that was to be paid to the Farrin firm to

the Morgan firm, in exchange for the Morgan firm’s agreement to increase its workload and to assist in

the financing of certain costs that the Farrin firm previously had paid during the prosecution of the

consolidated cases.

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The Participation Agreement also empowers Lead Class Counsel to allocate attorneys’ fees to any lawyers or law firms not parties to the Participation Agreement if Lead Class Counsel believes such lawyers or firms have provided services benefiting the class. Again, the guiding principle for the allocation of any fee award to such lawyers or law firms is the amount of work that such lawyer or law firm has provided for the benefit of the Class.
Because the Participation Agreement embodies a fair and appropriate process for the allocation of the fees awarded by the Court, Class Counsel request that this Court approve its provisions and direct any fee award made to Class Counsel generally to Lead Class Counsel for them to distribute in accordance with Class Counsel’s fee sharing agreement. IV. CONCLUSION
For the reasons set forth herein, Class Counsel ask that the Court approve a Fee Award of 7.4% of the Settlement Fund Fee Base. Class Counsel further ask that Common Benefit Fees be directed to Lead Class Counsel for allocation among Class Counsel in accordance with the Counsel Participation Agreement submitted to the Court.

Respectfully submitted,

/s/ Henry Sanders, Esq. CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL, L.L.C. One Union Street Selma, AL 36701 Tel: (334) 875-9264 Fax: (334) 875-9853
/s/ Gregorio A. Francis, Esq. MORGAN & MORGAN, P.A. 20 North Orange Avenue, Suite 1600 Orlando, FL 32801 Tel: (407) 420-1414
Dated: September 24, 2011

/s/ Andrew H. Marks, Esq. D.C. Bar No. 932269 CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004 Tel: (202) 624-2920 Fax: (202) 628-5116

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 </s> Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 1 of 70

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

This document relates to:

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)

ALL CASES

)

)

Misc. No. 08-05 I I (PLF)

OPINION This matter is before the Court on the motion of named plaintiffs James Copeland, Earl Moorer, and Marshallene McNeil ("the Moving Plaintiffs") for final certification of a plaintiffs' class and approval ofa settlement agreement that would resolve the pending claims of approximately 40,000 plaintiffs and compensate thousands of victims of face discrimination whose complaints have gone unanswered for decades. The defendant, the United States Department of Agriculture, supports the motion, After careful consideration of the arguments made by the Moving Plaintiffs and the defendant, the comments and objections offered by interested parties, the statements made by interested persons at the Fairness Hearing on September I, 2011, and the long history of this case and that of its predecessor, Pigford v. Glickman, Civil Action No. 97-1978 (D.D.C.), the Court will grant the motion, certify a class pursuant to Rule 23(b)(1 )(B) of the Federal Rules of Civil Procedure, and approve the settlement. [ Although, like any compromise, the settlement
The papers considered by the Court in connection with this matter include the following: Amended Class Action Complaint to Detennine Merits and Damages Pursuant to Section 14012 ofthe Food, Conservation and Energy Act 0[2008, as Amended, Docket No. 163 ("Am. Compl."); Certain Plaintiffs' Motion to Stay the Class Certification Proceedings, Docket

Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 2 of 70
agreement before the Court will not satisfy everyone, it offers class members their best option for
obtaining meaningful redress of longstanding injuries.
No. 66 ("Mot. to Stay"); Motion for Leave to Withdraw the July 6, 2009 Reply in Support of the Motion to Stay Class Certification Proceedings, Docket No.1 08 ("Mot. to Withdraw"); Motion for Preliminary Approval of SenIement, Certification ofa Rule 23(b)(I)(B) Senlement Class, and for Other Purposes, Docket No. 161 ("Mot. for Prelim. Approval"); Class Counsel's Motion for an Award of Attorneys' Fees and Expenses, Docket No. 180 ("Mot. For Fees"); Plaintiffs' Motion for Final Approval of Settlement, Docket No. 187 ("'Mot. for Final Approval"); Supplemental Memorandum in Support of Consent Motion to Approve Appointment of Track A and Track B Neutral, Docket No. 192 ("Supp. Mem."); Notice of Revision of Proposed Claim Form, Docket No. 226; Letter from Dewayne L. Goldmon on behalf of the National Black Agricultural Alliance, Docket No. 211 ("NBAA Lener"); Lener from Eddie Lee Gray, Docket No. 206 ("Gray Lener"); Lener from Ralph Paige on behalf of the Federation of Southern Cooperatives Land Assistance Fund, Docket No. 204 ("Federation Letter"); Notice of Appearance on behalf of the Black Farmers and Agriculturalists Association, Docket No. 208 ("Burrell Notice"); Notice of Appearance, Docket No. 212 ("Price Notice"); Notice of Objection to Senlement, Docket No. 183 ("Martin Obj."); Objection, Docket No. 215 ("Bates Obj."). The Court also reviewed the following materials: Motion by Jolm W. Boyd for Leave to Appear and Speak at Fairness Hearing of September 1,2011, Docket No. 203; Letter from William V. Paramore requesting permission to participate in September 1, 2011 fairness hearing, Docket No. 205; Letter to the Court from Joyce A. Smith requesting permission to participate in September 1, 2011 fairness hearing, Docket No. 207; Letter to the Court from Gloria Davis Gilmore requesting permission to participate in September 1,2011 fairness hearing, Docket No. 209; Letter to the Court from Bernice C. Atchison requesting permission to participate in September 1,2011 fairness hearing, Docket No. 210; Objection to Proposed Settlement Agreement by Henry Barris Muhammad Robbalaa, Docket No. 214; Objection to Proposed Settlement Agreement by Ada C. Bates, Ava L. Bates, Brad E. Bates, Kerry F. Bates, Theodore B. Bates, Jr., Karla K. Bates-Adams, Terrie L. Bates-Best, Docket No. 215; Objection to Proposed Settlement Agreement by Lillie M. Wingard, Docket No. 216; Objection to Proposed Settlement Agreement by Doris Gray, Docket No. 217; Objection to Proposed Settlement Agreement by Robert E. Walker, Docket No. 218; Objection to Proposed Settlement Agreement by Errol Von Hart, Docket No. 219; Objection to Proposed Settlement Agreement by Diahann C. Stevens, Docket No. 220; Objection to Proposed Settlement Agreement by Booker T. Woodard, Docket No. 221; Objection to Proposed Settlement Agreement by Justin G. Fouts and Willa G. Fouts, Docket No. 222; Defendant's Response to Objection to Settlement Agreement Based on Propriety of Class Cenification Under Rule 23(b)(I), Docket No. 190 ("Def.'s Certification Resp."); and Reply to Plaintiffs' Response to Objection II to the Settlement Agreement, Docket No. 213 ("Martin Reply"). The Court also reviewed the transcript of the September 1,2011 Fairness Hearing ("Sept. 1 Tr.").
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I. BACKGROUND A. Pigford v. Glickmon ("Pigford /") I. Claims of Pigford 1Plaintiffs and Their Resolution by Consent Decree In 1997, a group of African-American fanners brought suit in thi s Court against Dan Glickman. at that time the Secretary of the United States Department of Agriculture ("USDA"). Their final amended complaint alleged that. from January 1983 through January 1997, the USDA discriminated on the basis of race in allocating benefits under various federal agricultural programs, denying African-American fanners loans and other benefits that were freely granted to similarly situated white farmers. See Pigford v. Glickman, Civil Action No.
97-1978. Seventh Amended Complaint at 4 (D.D.C. Oct. 26. 1998) ("Pigford I Compl."). The Pigford plaintiffs further alleged that, when they attempted to protest that discrimination by filing complaints with the USDA, the Department failed to investigate those complaints, flouting its responsibilities under federal civil rights laws, including the Civil Rights Act of 1964 and the
Equal Credit Opportunity Act ("ECOA"). Pigford I Compl. at 4. According to the complaint. that history of discrimination in the administration of USDA farm programs, combined with the agency's long-standing refusa1 to investigate and remedy specific instances ofdiscrimination, deprived countless fanners of desperately needed credit and payments under various aid program s, with the result that many farmers suffered severe financial losses and even, in many cases, lost title to their fanns. See, M., id. at 7-34 (summarizing the damages claimed by the named plaintiffs); see generally Pigford v. Glickman. 185 F.R.D. 82. 86-89 (D.D.C. 1999).
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The plaintiffs thus alleged that the USDA had committed and then exacerbated a vast array of civil rights violations over a period spanning nearly twenty years. Their claims, though broad in scope, were no exaggeration. The USDA itself, in a report commissioned by Secretary Glickman at the behest of then-President Clinton, noted that the "USDA's painful history of individual and class action lawsuits, court orders, media exposes, numerous Congressional hearings, and reports depicts the Department as a stubborn bureaucracy that refuses to provide equal opportunity for all as the law requires." USDA CIVIL RIGHTS ACTION TEAM, CIVIL RIGHTS AT THE UNITED STATES DEPARTMENT OF AGRICULTURE 6 (1997).
Congress acknowledged the scope of the civil rights problems plaguing the USDA by giving new life to thousands of claims of past discrimination by the agency. Claims alleging violations of ECOA typically have a short life; they must be brought within two years of the
occurrence of the statutory violations in question. See 15 U.S.c. § 1691 e(f). In 1998 Congress
eliminated that restriction on ECOA claims against the USDA, creating a new statute of limitations for complaints alleging ECOA violations in the administration of various farm-related benefit programs. See PUB. L. No. 105-277, § 741,112 STAT. 2681, 2681-3-1 (1998). Such complaints could be brought at any time within two years of Congress' enactment of the new statute of limitations, so long as (I) the allegations underlying those complaints had previously been presented to the USDA before July I, 1997, and (2) the ECOA violations alleged had
occurred between January I, 1981, and December 31, 1996. Id. § 741(e). Congress' action thus
had the effect of opening the courthouse doors to large numbers of old claims, including many subsequently brought in Pigford L
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In light of Congress' 1998 amendments to the statute of limitations applicable to ECOA claims, this Court ultimately certified a plaintiffs' class in Pigford under Rule 23(b)(3) of the Federal Rules of Civil Procedure that was composed of
[a]1I African American farmers who (1) farmed, or attempted to farm, between January I, 1981 and December 31, 1996; (2) applied to the (USDA) during that time period for participation in a federal fann credit or benefit program and who believed that they were discriminated against on the basis ofrace in USDA's response to that application; and (3) filed a discrimination complaint on or before July I, 1997, regarding USDA's treatment of such farm credit or benefit application.
Pigford v. Glickman, t85 F.R.D. at 92. Rather than proceeding to trial on the claims of the plaintiffs' class members, class counsel and the USDA negotiated a settlement, which was approved by the Court and memorial ized in a consent decree filed on April 14, 1999. That consent decree did not provide for the automatic payment of damages to any plaintiff. Instead, it established a non-judicial mechanism by which each class member would have an opportunity to demonstrate that he or she had been the victim of past discrimination by the USDA and therefore was entitled to compensatory damages. Potential class members were not required to participate in that alternative claims resolution process, however; those African-American fanners who wished to pursue their ECOA claims against the USDA in court were pennitted to opt out of the Pigford plaintiffs' class by submitting an opt-out request within 120 days of the entry of the
consent decree. Pigford v. Glickman, Civil Action No. 97-1978, Consent Decree ~ 5(b)-(f) (D.D.C. Apr. 14, 1999) ("Consent Decree"); ~ also Pigfo rd v. Glickman, 185 F.R.D. at 95-96.
For those who did not opt out of the plaintiffs' class, the Pigford consent decree created a distinctive process for resolving class members' claims against the USDA. First, any
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individual seeking an award under the consent decree was required to submit to a neutral "Facilitator," the Poorman-Douglas Corporation (now Epiq Systems, Inc.), evidence that he or she was in fact a member ofthe class. See Consent Decree ~ 2(b). Next, if the Facilitator determined that a given claimant was a member of the class, the claimant was permitted, at his or her election, to proceed along one of two "tracks" for determining the merits of the claim. Id. ~ 5(f). "Track A" allowed a claimant to prevail by presenting "substantial evidence" of discrimination to a neutral, third-party "Adjudicator." Id. 9. The requirement of "substantial evidence" - defined as "such relevant evidence as ... a reasonable person might accept as adequate to support a conclusion after taking into accOlmt other evidence ... that fairly detracts
from that conclusion," id. 1 1(l) - represents a less stringent evidentiary standard than the more
common preponderance of the evidence standard. Still, prevailing on a Track A claim in Pigford was not easy, largely because the claimant was required to demonstrate that he or she had made a request for USDA program benefits that yielded a less favorable result than a request or requests made by "specifically identified, similarly situated white farmers." ld. ~ 9(a)(i)(C); see Pigford v. Glickman, 127 F. Supp. 2d 35, 39 (D.D.C. 2001) (discussing the difficulty of satisfying this requirement). Nevertheless, because claimants proceeding along this track were not required to prove their claims by a preponderance of the evidence, their potential recovery was limited: with respect to monetary compensation, a successful Track A claimant was entitled only to liquidated damages in the amount of $50,000, plus forgiveness of certain types of debt owed to the USDA and a payment to offset federal taxes owed on other portions of the award. See Pigford v. Glickman, 185 F.R.D. at 97.
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The second form of claim resolution created by the consent decree. known as "Track B," also involved a streamlined process of dispute resolution. Track B claims were to be heard by another third-party neutral , the "Arbitrator," who could receive written testimony and documentation as evidence but would conduct only a one-day mini-trial of each plaintiff' s claims. See Pigford v. Glickman, 185 F.R.D. at 97. Claimants choosing Track B, unlike those proceeding along Track A, were required to prove their claims by a preponderance of the evidence, rather than the more lenient substantial evidence standard, but, if successful, they were awarded the full amount of damages necessary to compensate them for their losses. ld.
Pigford class members were not given an unlimited amount of time in which to submit their claims and supporting documentation to the Facilitator. Under the terms of the consent decree, all claims packages had to be postmarked on or before October 12, 1999. Consent Decree 5(c). Paragraph 5(g) of the consent decree provided that if a claims package was not postmarked within that period of time, the claimant could pursue relief under the decree only by receiving permission from the Arbitrator. Consent Decree 5(g).1 The claimant could
receive such permiss ion, however, only if he or she demonstrated that "his failure to submit a timely claim was due to extraordinary circumstances beyond his control." lQ. Furthermore, there
was also a time limit on the period during which late claimants could submit petitions under Paragraph 5(g); by order of the Court, those petitions we re to be postmarked no later than
, The consent decree originally provided that the Court would render decisions on petitions for pennission to submit a late claims package lUlder Paragraph 5(g), but the Court subsequently delegated that authority to the Arbitrator. ~ Pigford v, Glickman, Civil Action No. 97-1978, Order, at 2 (D.D.C. Dec. 20,1999).
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January 30, 2000. Pigford v. Glickman, Civil Action No. 97-1978, Order, at 2 (D.D.C. Dec. 20, 1999).
Implementation of all of these provisions of the consent decree was to be overseen by the "Monitor," another independent, neutral third party whose responsibilities were delineated by the decree itself. See Consent Decree ~ 12. The Monitor was responsible for (1) making periodic written reports on the good faith implementation of the consent decree; (2) attempting to resolve any problems that any class member may have with the consent decree; and (3) being available to class members and the public through a toll-free number to provide information about the consent decree and the claims process and to facilitate the lodging of any consent decree complaints and to expedite their resolution. Id. ~ 12(b). While there was no appellate review of the decisions of the Arbitrator, the Adjudicator, and the Facilitator, the Monitor was authorized to examine them for "clear and manifest error" in the screening, adjudication, or arbitration of the claim that has resulted or is likely to result in "a fundamental miscarriage of justice." Id. ~ 12(b)(iii). On a petition for review ofa decision granting or denying a claim submitted in Track A, the Monitor was pennitted within her discretion to consider new evidence - documentation not previously submitted to the Adjudicator - if she found that "such materials address[ed] a potential flaw or mistake in the claims process that in the Monitor's opinion would result in a fundamental miscarriage ofjustice if left unaddressed." Pigford v. Glickman, Civil Action No. 97-1978, Order of Reference ~ 8(e)(i) (D.D.C. Apr. 4, 2000).
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2. Results of the Consent Decree's Claim Resolution Process As of December 31, 2010, more than 22,700 completed claim packages had been submit1ed by individuals eligible to pursue relief under the terms of the consent decree. Pigford v. Glickman. Civil Action No. 97-1978. Monitor's Report Regarding Implementation of the Consent Decree for the Period of January I, 2010, through December 31, 2010, at 7 (D. D.C. May 27, 201\) (''20 I0 Monitor Report"). Of those eligible claimants, approximately 99% elected to pursue Track A relief, while 170 claimants proceeded to Track 8 arbitration. Id. at 10. Over one billion dollars has been awarded to the approximately 16,000 successful claimants in the form of direct payments, loan forgiveness, and tax relief. Id. at 10, 19-20. Although the number of eligible claimants who submit1ed timely claims under the consent decree may seem staggering, that figure is dwarfed by the num.ber of individuals who have sought to submit late claims. As of September 15, 2000, the court-set deadline by which late claimants were to request permission to file late claims under Paragraph 5(g) of the consent decree, more than 61,000 individuals had petitioned the Arbitrator for leave to submit untimely claim packages. 2010 Monitor Report at 5. These "late filers" were later joined by an as-yet uncertain number of "late-late filers" - individuals who filed Paragraph 5(g) petitions with the Arbitrator after September 15,2000. See Mot. to Stay at 1-2 (suggesting that the number of late-late filers may be as high as 25,000). In light of this Court's order that such petitions should be postmarked by September 15, 2000, the Arbitrator did not consider any petitions postmarked after that date. See 2010 Monitor Report at 4-5. Instead, in accordance with the dictates of Paragraph 5(g), he reviewed the 61,252 timely petitions to determine whether each petitioner'S failure to file a claim
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package within the prescribed timeframe resulted from "extraordinary circumstances beyond [the petitioner's] control." ld. Those petitioners who ascribed their failure to submit timely claims to such uncontrollable circumstances as ill health or the ravages of Hurricane Floyd were given permission to complete late-claim packages. Id . at 4. That pennission was denied to all those who explained that they had failed to complete timely claim packages because they had only recently learned of the Pigford lawsuit or the consent decree. !Q. Ultimately, only 2,585 late filers - 4% of the total number - were permitted to pursue relief under the consent decree. IQ. at 5.
B. The 2008 Farm Bill In 2008, after extensive hearings on the Pigford case and the consent decree. see, ~, "Notice" Provision in the PigfOrd v. Glickman Consent Decree: Hearing Before the Subcomm. on the Constitution ofthe H. Comm. on the Judiciary, I I8th Congo (2004), Congress resurrected the claims of those who had unsuccessfully petitioned the Arbitrator for permission to submit late claim packages. Under the Food, Conservation, and Energy Act of2008 ("2008 Fann Bill"), "[a1ny Pigford claimant who has not previously obtained a determination on the merits of a Pigford claim may. in a civil action brought in the United States District Court for the
District of Columbia, obtain that detennination." PUB. L. 110-234, § 14012(b), 122 STAT. 923, 1448 (2008). A "Pigford claim" is "a discrimination complaint" as defined by the Pigford
consent decree, ill. § 14012(a)(3):
a commun ication from a class member directly to USDA, or to a member of Congress, the White House, or a state, local or federal official who forwarded the class member's communication to USDA, asserting that USDA had discriminated against the class
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member on the basis of race in connection with a federaJ fann credit transaction or benefit application. Consent Decree I(h). To be a "Pigford claim" for the purposes of the statute, such a discrimination complaint must be "documented under section 5(b) of the consent decree" - the portion of the decree that li sts the required elements ofa complete claim package. 2008 Fann Bill § 1401 2(a)(3). An individual qualifies as a "Pigford claimant" wi thin the meaning of the 2008 Fann Bill only if that person "previously submitted a late-filing request under section 5(g) of the consent decree." 2008 Fann Bill § 14012(a)(4). Notably, the statute does not specify the time during which, to qualify as a "Pigford claimant," an individual must have submitted a 5(g) late-filing request, although the phrasing of the statute makes clear that the request must have
been made prior to the effective date of the 2008 Fann Bill. See ill. (late-filing request must have
been "previously submitted"). For those individuals who meet its eligibility requirements, the 2008 Fann Bill
provides for fonns of adjudication and relief that are similar, but not identical, to those created by the Pigford I consent decree. Claimants under the 2008 Fann Bill may elect to pursue "expedited resolution" of their claims by means ofa process that mirrors Track A. ~ PUB. L. 110-234, § 1401 2(1). If claimants choose to participate in that expedited process, they are entitled to "liquidated damages of $50,000," loan forgiveness, and tax reHefso long as they can prove their
claims by substantial evidence, "as defmed in section 1(1) of the consent decree." IQ. Under the
2008 Fann Bill, however, "the court" is to "decide the case based on a review of documents"
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submitted by the claimant and the USDA; the statute makes no mention of any third-party neutral
that would be analogous to the consent decree's Adjudicator. k!. § 14012(I)(I)(B).
In addition, the 2008 Farm Bill, like the consent decree, allows claimants to pursue a more complete adjudication of their claims and provides for the payment of "actual damages" to claimants who prevail in such an adjudication by proving their claims by a preponderance of the evidence. PUB. L. 110-234, § 14012(g). But again, the court is authorized to preside over those adjudications, and no mention is made of an Arbitrator. See id. § 14012(b), (g). Furthermore, the 2008 Farm Bill does not streamline those adjudications in the way that the consent decree did for Track B proceedings. While the consent decree limited Track B hearings to one day and permitted only limited discovery, the 2008 Farm Bill contains no such express restrictions.
In contrast to the consent decree, which did not set a cap on the amount of damages recoverable by the Pigford class, the Farm Bill originally provided that "[t]he total amount of payments and debt relief pursuant to actions commenced under [this section] shall not exceed $100,000,000." 2008 Farm Bill § 14012(c)(2). When 75% of that $100 million had been "depleted," the Secretary of the USDA was to notify the House and Senate Judiciary Committees. Id. § 140120)(2). The Secretary was also directed to report on the "status of available funds" under the statute every six months. Id. § 1401 20)(1).
The Farm Bill does not purport to create an open-ended right for individuals to bring late Pigford claims. The right to file a complaint under the statute "terminate[dJ" two years after the law's enactment, on June 18,20 10. PUB. L. 110-234, § 14012(k). All complaints based
on Section 1401 2 of the Farm Bill were to be filed in this Court. ~ ill. § 14012(b).
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C. The Current Lawsuit and the Claims Resolution Act 0/2010
Approximately 40,000 individuals have filed complaints in this Court pursuant to Section 14012 of the 2008 Farm Bill. Mot. for Prelim. Approval at 48. They did not file individual complaints. Instead, plaintiffs brought suit in groups, with large numbers of individuals aggregating their claims and summarizing them all in a single complaint. See,~, Agee v. Schafer, Civil Action No. 08-0882, Complaint at 1-24 (D. D.C. May 23, 2008) (listing plaintiffs). Twenty-three such complaints alleging claims under the 2008 Farm Bill (hereinafter "Pigford II" actions or cases), most of them aggregating large numbers of plaintiffs in the manner described, were filed in this Court between May of2008 and June of2010 by plaintiffs represented by a wide array of counsel. Recognizing the substantial case management difficulties posed by the Pigford II actions, the Court stayed each individual lawsuit and consolidated all 23 actions into one miscellaneous case in order to permit the various parties, their counsel, and the Court to determine the best way to proceed in this matter. See,~, In re Black Farmers Discrimination Litig., Misc. No. 08-0511, Order (D.D.C. Aug. 8, 2008) (consolidating the first eight cases brought pursuant to Section 14012).
Beginning in the spring of 2009, counsel for the plaintiffs named in several Pigford II complaints initiated settlement negotiations with counsel for the USDA and the United States Department of Justice. See Mot. for Prelim. Approval, Ex. 13 (Declaration of Andrew H. Marks) ("Marks Decl.") 1/2. In February 2010, after extensive negotiations, the defendant and certain plaintiffs executed the first version of a settlement agreement that has since been signed by counsel for every plaintiff named in a pending Pigford II complaint except for those in five
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cases, Civil Action Nos. 09-1019,10-0465,10-0737,10-0801, and 10-0839. See Mot. for Prelim. Approval, Ex. 2 (Settlement Agreement) ("SA") , II.HH. Secretary of Agriculture Thomas Vilsack and Attorney General Eric Holder announced the settlement on February 18, 20 I O. See Press Release, USDA, USDA and Department of Justice Announce Historic Settlement in Lawsuit by Black Farmers Claiming Discrimination by USDA (Feb. 18,2010), available at http://www.usda,gov/wpsfportaUusdaiusdahome?contentidonly= true&contentid=201O/02/0072.xml. As the Attorney General explained, the settlement provided that a total of $1.25 billion would be made available for the resolution of claims brought pursuant to Section 14012 of the 2008 Farm BilI- but at the time the settlement was executed, the only funds appropriated by Congress for that purpose were the $100 million set aside by the Fann Bill itself. See id. The settlement's continuing validity was contingent upon the appropriation by Congress of an additional $1.15 billion. Id.
Beginning in March of2010, members of Congress introduced legislation intended to fimd the settlement agreement reached by the USDA and the Moving Plaintiffs. See S. Amend. 3407 to H.R. 4213, III th Congo (20 I0) (failed proposed amendment that would have appropriated $1.15 billion "to the Department of Agriculture ... to carry out the tenns of a Settlement Agreement ... executed in In re Black Fanners Discrimination Litigation"), reprinted in 156 Congo Rec. SI189 (daily ed. Mar. 4, 2010). Several such attempts to fund the settlement agreement were defeated in the Senate during the spring, summer, and fall of 20 IO. See TADLOCK COWAN AND JODY FEDER, CONGo RESEARCH SERV., RS 20430, THE PIGFORD CASES: USDA SETTLEMENT OF DISCRIMINATION SUITS BY BLACK FARMERS 12 (2011).
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On November 30, 2010, Congress passed the Claims Resolution Act of201 0, which was signed into law by President Barack Obama on December 8, 2010. See PUB. L. 111-291,124 STAT. 3064. The Act "appropriated to the Secretary of Agriculture $1,150,000,000, to remain available until expended, to carry out the terms of the Settlement Agreement [in In re Black Farmers Discrimination Litigation 1 if the Settlement Agreement is approved by a court order that is or becomes final and nonappealable[,]" Claims Resolution Act § 20 I(b). "Settlement Agreement" is specifically defined by the statute to refer to "the settlement agreement dated February 18,2010 (including any modifications agreed to by the parties and approved by the court under that agreement) between certain plaintiffs ... and the [USDA] ... in In re Black Farmers Discrimination Litigation, Misc. No. 08-mc-0511." Id. § 201 (a)(1).
In addition to funding the settlement agreement reached by the defendant and the Moving Plaintiffs, the Claims Resolution Act amended Section 14012 of the 2008 Farm Bill. Those amendments included the removal of two provisions of Section 14012 that would have required the USDA to (1) supply each Pigford II plaintiff with reports on USDA loans and other benefits awarded in the plaintiff's county of residence, and (2) make progress reports to Congress regarding the depletion of the $100 million made available by Section 14012 for the payment of awards in Pigford II. See Claims Resolution Act § 201(1)(2), (5) (striking subsections 14012(e) and G) of the 2008 Farm Bill), It also makes clear that the claims under the settlement agreement should be resolved by a Neutral Adjudicator rather than by the Court itself. See Claims Resolution Act § 201 (b), (g)(1).
On March 30, 20 II, the Moving Plaintiffs requested preliminary certification of a plaintiffs' class and approval of the settlement agreement first executed on February 18,2010,
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See Mot. for Prelim. Approval. On April 25, 2011, the Court sent counsel for the Moving Plaintiffs a letter in which it communicated several questions and concerns raised by the proposed settlement agreement. See Docket No. 168. Those questions and concerns were addressed by the Moving Plaintiffs in a written response dated May II, 2011. See Docket No. l71-1. The Court granted preliminary class certification and preliminary approval of the settlement on May 13, 20 II, set a deadline for the filing of written objections to the settlement, and scheduled a Fairness Hearing for September I, 2011.
After preliminary approval of the settlement agreement, the Moving Plaintiffs initiated a comprehensive program intended to provide notice of the proposed settlement to putative class members. See Mot. for Final Approval, Ex. A (Declaration of Katherine Kinsella). Kinsella Media, LLC, the finn engaged by the Moving Plaintiffs to effect notice, arranged for the mailing of packets describing the settlement agreement in detail directly to all individuals who, according to the records of the Pigford I Facilitator, made any written request to participate in the Pigford I claims resolution process between October of 1999 and June 18, 2008. See id. ~ 7. Notice was also broadly disseminated through radio, television, print, and online advertising, A 60-second advertisement announcing the proposed settlement aired on two national radio stations with large African-American audiences and 52 local radio stations located in areas with high concentrations of African-American farmers. See id. 13. Written announcements appeared once in American Profile, a newspaper supplement available in many rural counties; once in Jet magazine; once in 46 daily newspapers that circulate in areas where high concentrations of putative class members reside; twice in numerous newspapers targeting African-Americans; once or twice in almost 200 community newspapers; and at least once in 20 trade publications geared
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toward fanners and ranchers. See id. ~~ 17,23-24. Online announcements appeared on a variety
of websites with large numbers of African-American visitors, see id. 1 22, and directed Internet
users to a website, www.blackfarmercase.com. providing detailed information about this case and the proposed settlement. See id. , 21. Press releases announcing details of the settlement were circulated and widely reported on by various media outlets. See id. ~~ 27-29.
After that notice program was implemented, as of August 5, 2011, interested persons had made more than 62,000 requests for the claim packages that must be completed by any individual wishing to participate in the claims resolution process that would be created by the proposed settlement agreement. Mot. for Final Approval, Ex. A, 32. Nearly 150,000 calls had been placed to a toll-free telephone number established to provide information about the settlement agreement. Id. Almost 70,000 visitors have viewed the website announcing the settlement. Id. In spite of the overwhelming degree of interest indicated by these numbers, however, the Court received only a handful of written objections from parties who may be members of the putative plaintiffs' class. The Court also received several written comments or objections from organizations or individuals that either do not appear to be or to represent potential class members, or have made no attempt to establish that they are class members. See In re Black Fanners Discrimination Litig.• Misc. No. 08-0511, Memorandum Opinion and Order Regarding Fairness Hearing (D.D.C. Aug. 26, 2011) (listing objections).
The Court held an all-day Fairness Hearing on September I, 2011. Because so few objections by putative class members had been received, and because the Court is aware that this litigation is a subject of intense interest among many African-American farmers and fanning organizations, the Court allowed any individua1 who had experience with or an established
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interest in Pigford I or communities of African-American farmers to offer comments at the hearing. Although few of those who spoke demonstrated that they are putative plaintiffs' class members and so have standing to object to the settlement agreement, the Court appreciates and has considered their comments.
II. CLASS CERTIFICATION The Moving Plaintiffs seek final certification of a settlement class consisting of: All individuals: (1) who submitted Late-Filing Requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree.
SA 11 lIlA. A "Late-Filing Request" is dermed as "a written request to the Court, the Pigford
Facilitator, the Pigford Monitor, the Pigford Adjudicator, or the Pigford Arbitrator seeking to participate in the claims resolution processes in the Pigford Consent Decree," Id. 11 IlT. The dates specified in the class definition - October 13, 1999, and June 18,2008 - correspond, respectively, to (I) the day after the deadline for the filing of a timely claim under the Pigford I consent decree, and (2) the effective date of the 2008 Fann Bill. The remainder of the class
definition tracks the language of Section 14012. See 2008 Farm Bill § 140 I2(a)-(b).
As the parties seeking class certification, the Moving Plaintiffs bear the burden of demonstrating that the proposed class meets the requirements of Rule 23 of the Federal Rules of Civil Procedure. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). The parties must show that all four prerequisites of Rule 23(a) have been met and that the proposed class falls within at least one of the three categories delineated by Rule 23(b). See FED. R. CIV. P. 23(b);
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Richards v. Pelta Air Lines. Inc., 453 FJd 525, 529 (D.C. Cir. 2006). If the Moving Plaintiffs
are able to satisfy those requirements, then the Court may decide, in its discretion, whether a class should be certified. ~ Garcia v. Johanns, 444 FJd 625, 631 (P.C. Cir. 2006) (citing
McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (P.c. Cir. 1984» .
The Moving Plaintiffs' request for class certification is supported by the defendant. ~ Def. 's Certification Resp. The only real opposition to the request comes from a group of ten potential class members represented by attorney Precious Martin ('"the Martin
Objectors"). ~ Martin Obj. at I-2. According to those plaintiffs, the assets available for the
payment of awards in this case do not truly qualify as a "limited fund," and therefore certification
ofa class pursuant to Rule 23(bXIXB) of the Federal Rules of Civil Procedure is improper. Id. at 14- I 7. Furthermore, the Martin Objectors assert that the class proposed by the Moving Plaintiffs does not meet the commonality requirement of Rule 23(a)(2). ~ Martin Reply at 2-3.
Because the matters in dispute all relate to Rule 23(b)(I)(B) and Rule 23(a)(2), the Court first addresses those provisions together before moving on to consider the requirements of Rule
23(a)(I), (3), and (4).
A. ReqUirements/or a Limited Fund Class Action Under Rule 23(bXI)(B) of the Federal Rules of Civil Procedure, a plaintiffs' class meeting the requirements of Rule 23(a) may be certified if prosecuting separate actions by or against individual class members would create a ri sk of . .. adjudications with respect to individual class members that, as a practical matter. would be disposi tive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.
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FED. R. C1v. P. 23(b)(l)(B). The Moving Plaintiffs request certification under Rule 23(b)(1)(B) on the ground that this case involves the aggregation of "'claims . . . made by numerous persons
u.s. against a fund insuffic ient to satisfy all claims.'" Ortiz v. Fibreboard Com" 527 8 15, 834
(1999) (citation omitted). In such a case every award made to one claimant reduces the amount of funds avai lable to other claimants until. in the absence of equitable management of the fund, some claimants are able to obtain full satisfaction of their claims, while others are left with no recovery at all . Thus are "adjudications with respect to individual class members . .. dispositive of the interests of the other members" in such a case. FED. R. CIV. P. 23(b)(I)(B); see generally
u.s. Ortiz v. Fibreboard Com., 527 at 834-37.
To qualify for class certification on such a limited fund rationale, the Moving Plaintiffs must show that the fund and the proposed class in question meet three criteria. See
u.s. Ortiz v. Fibreboard Com., 527 at 838. First, "the totals of the aggregated liquidated claims
and the fund avai lable for satisfying them, set definitely at their maximums, demonstrate the inadequacy of the fund to pay al l the claims." Id. Next, " the whole of the inadequate fund" must be dedicated " to the overwhelming claims." Id. at 839. Final ly, al l claimants to the fund who are "identified by a common theory of recovery [must be] treated equitably among themselves." Id . All three requirements are met in this case.
I. Inadequacy of the Fund The 2008 Fann Bill initially limited the amount of money avai lable for the
payment of damages to Pigford II plaintiffs to $ 100 million. PUB. L. 110-234, § 140 12(c)(2). The Claims Reso lution Act of2010 increased that pool of assets by S1.15 billion, to a total of
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$1.25 billion, on Ihe condition thai the proposed settlemenl agreemenl be approved. ~ PUB. L. 111-291, § 201(b). Taken oul of coniexI, thai fund mighl seem vas!. When considered in lighl of the Pigford I proceedings, however, it appears woefully insufficient to fund the judgments or to sati sfy the meritorious claims likely to result from this litigation. Of the roughly 22,700 individuals who pursued claims under the Consent Decree, 99"10 elected to proceed along Track A and receive liquidated damages if they prevailed on their claims. 2010 Monitor Report at 10. Roughly 69% of those Track A claimants, or 15,645, succeeded in proving their entitlement to relief. Id . Even Ihough each of lhose successful Track A claimanls was enlilled only 10 $50,000 plus debl and lax relief (amounling 10 $ 12,500), Ihe aggregale amounl of damages paid 10 Ihose claimants amounted to morc than 51 billion. lQ. at 19.
More than 40,000 plaintiffs have already filed complaints in this case. Tens of thousands more may be entitled to participate in the litigation. ~ ~ at 17. The SI.25
billion approprialed by Congress in Ihe 2008 Farm Bill and Ihe Claims Resolulion Acl would
cover Track A cash damages and tax relief - a payment amounting to $62,500, see Pub. L. No. 11 0-234, § 140 12(e), as amended by Pub. L. 111-29 1, § 20 1(f) ("Am. 2008 Farm Bill") - for only 20,000 successful claimants. That simple calcul ation does not take into account the facts that some claimant'S will also win debt relief, that others will pursue the more generous monetary reliefafforded upon success in Track B. and that the costs ofadministering the claims resolution process will inevitably run into the tens of millions of dollars, further reducing the funds available for awards. Even if Pigford IT class members prevail on their cl aims at far lower rates than their Pigford I predecessors - and there is no reason to believe that they would - it is
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apparent that the avai lable $ 1.25 billion fund is inadequate to pay for the awards of all successful claimants.
No party to this litigation - and none of those who fil ed objections or sJX>ke at the Fairness Hearing - disputes that the funds made available by Congress in the 2008 Fann Bill and the Claims Resolution Act are insufficient to compensate the Pigford Il plaintiffs. Instead, the Martin Obj ectors contend that the fund established by the 2008 Fartn Bill and the Claims Resolution Act is not "set definitely at [its] maximum." ~ Martin Obj. at 14-17; Martin Reply at 6-7. All of the arguments marshaled by the Martin Obj ectors in support of thi s assertion, however, are unpersuasive.
The Martin Objectors claim first that no limited fund can exist in this case because the defendant has engineered the limitation on the fund, in contravention of the Supreme Court ' s ruling in Ortiz that a fund does not qualify as "limited" for the purposes of a Rule 23(b)( 1)(B) analysis if it is capped only "by the agreement of the parties." Ortiz v. Fibreboard ~,527 U.S. at 848. This argwnent lacks merit for two reasons. First, the defendant in this case is the USDA. As the text of the 2008 Fann Bill and the Claims Resolution Act makes clear, the USDA did not impose the limitation on the fund at issue here - Congress did. Second, even if one we re to ignore the fact that the USDA is a separate juridical entity from Congress, and so to imagine that the defendant here is simply equivalent to the United States government, the Martin Objectors ignore the fact that the government is that unique defendant which has the legal authority to define the extent of its own liability, unlike the private defendants in Ortiz. See id. at 850 (limited fund would compri se defendant corporation' s entire equity and insurance assets). There is nothing improper or illegal about Congress' limitation of the plaintiffs' possible
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recovery in this case to $1.25 billion, if the proposed settlement is approved, or to $100 million, if it is not.
Next, the Martin Objectors contend that there is no limited fund in this case because the Claims Resolution Act is unconstitutional, or because it "does not apply retroactively." Martin Reply at 6~8. While creative, these arguments are bizarre and frivolous. According to the Martin Objectors, the Claims Resolution Act violates the separation of powers between branches of government because it represents an attempt by Congress "to coerce the class and the Court into accepting th[e] proposed settlement." Id. at 6. Congress has not overstepped its bounds with respect to this case. Although Congress may lack authority to direct a court to reach a particular result in a given case without amending substantive law, see Robertson v. Seattle Audubon Soc'y. 503 U.S. 429, 436, 441 (I 992), Congress certainly has not done so here. Indeed, the Claims Resolution Act makes clear that Congress has funded the proposed settlement agreement only if this Court approves the settlement in a final order. But nothing in the statute presumes to instruct the Court how or whether to decide if the settlement should be approved.
Nor is the Claims Resolution Act impermissibly retroactive. The Martin Objectors contend that the Act "is a conditional attempt to limit the funds of this case retroactively, contingent upon the class and this Court's acceptance of the settlement." Martin Reply at 213. That contention is silly. There is nothing retroactive about the limitation on funds in this case; the 2008 Fann Bill limited the available funds first, and it did so to a much lower number, $100 million, than the Claims Resolution Act. Furthermore, contrary to the conclusory assertions of the Martin Objectors, the Claims Resolution Act did not "'attach[] new legal
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Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 24 of 70
consequences to events completed before its enactment.'" Id. at 8 (quoting Landgrafv. US! Film Prods., 511 U.S. 244, 270 (1994)). The Act is a valid statute, one that makes available for the payment of claims in this case limited funds that may be combined with the even more limited funds appropriated by the 2008 Fann Bill. Since there is no reason to believe that any further funds are or will be available for the payment of Pigford II claims, and since the available funds are inadequate to pay all claims fully, the first Ortiz requirement is satisfied.
2. Dedication of the Fund to Class Claims To qualifY as a limited fund justifYing the certification of a plaintiffs' class, "the whole of the inadequate fund" available for the payment ofjudgments must be dedicated "to the overwhelming claims." Ortiz v. Fibreboard Com., 527 U.S. at 839. That criterion is easily met in this case. The 2008 Fann Bill and the Claims Resolution Act appropriate the total of $1.25 billion specifically for use in the resolution and payment of Pigford II claims. See Claims Resolution Act § 201(b); Am. 2008 Farm Bill § 201(1).
3. Equitable Distribution of the Fund In order for a class to be certified on a limited fund theory, "the class [must] comprise everyone who might state a claim on a single or repeated set of facts, invoking a common theory ofrecovery, to be satisfied from the limited fund as the source of payment." Ortiz v. Fibreboard Corn., 527 U.S. at 839. Every plaintiff in this case proceeds on the theory of recovery spelled out in the 2008 Fann Bill, and every prevailing plaintiff will be paid out of the limited fund created by Congress. Furthermore, the proposed class would include every person who could potentially be eligible for relief under Section 14012, encompassing every individual
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Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 25 of 70
who unsuccessfully petitioned for leave to file a late Pigford claim under Paragraph 5(g) of the consent decree. With all potential plaintiffs gathered into one class, the Court will be able to ensure that, even given an available fund insufficient to pay the full amount of all judgments, similarly situated plaintiffs will ultimately receive the same awards, thus satisfying the requirement that all claimants to the fund who are "identified by a common theory of recovery [will be] treated equitably among themselves." Ortiz v. Fibreboard Com., 527 U.S. at 839. As explained below, see infra at 48-49, the proposed settlement agreement provides for an equitable division of the common fund among members of the plaintiffs' class.
4. Commonality As the foregoing analysis indicates, the proposed plaintiffs' class meets the requirements identified in Ortiz as prerequisites for the formation of a Rule 23(b)(l )(B) class. For similar reasons, the proposed class also meets the requirement of Rule 23(a) of the Federal Rules of Civil Procedure that there be "questions of law or fact common to the class." FED. R. Cry. P. 23(a)(2). '''What matters to class certification,'" however, "'is not the raising of common "questions" - even in droves - but, rather the capacity of a c1asswide proceeding to generate common answers apt to drive the resolution of the litigation.'" Wal-Mart Stores. Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REv. 97,132 (2009)) (emphasis in original). In other words, the determination of a disputed question or questions that are common to the various class members will "resolve an issue that is central to the validity of each one of the claims in one stroke." Id.
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"Implicit in a finding that an action satisfi es the requirements of Rule 23(b)( 1) is the decision that there are questions oflaw or fact shared by the persons affected." 1 WILLIAM B. R UBENSTEIN, ALBA CONTE & H ERBERT B. NEWBERG, NEWBERG ON C LASS ACTIONS § 3:10 (4th ed. 2002). The logic of that principle is evident upon a brief examination of the factual questions that must be answered before the common fund may be divided equitably among similarly situated plainti ffs: How many plaintiffs will prevail? What amount of damages will each prevailing class member be entitled to recover? And how, in the likely event that total recoverable damages exceed available funds, will each award be reduced? These questions are "central to the validity" of every single claim that could be brought in thi s matter because they will determine the extent to which any prevailing claimant is entitled to relief.
The Martin Objectors dismiss these common questions as " related solely to the issue of how potential class members, and consequently, class counsel, might get paid." Martin Reply at 3. But they fail to explain why that distinction matters. The sole function of the 2008 Farm Bill is to allow those farmers who were the subject of discrimination by the US DA and who meet other eligibility requirements to "get paid" - i.e., be compensated fo r their injuries. Determining the amount of compensation that a given plaintiff may receive is central to the claims made in this lawsuit, and that determination cannot be made without answering the "common questions" identified above. The Martin Objectors have identified no way in which those questions could be answered in the absence ofa Rule 23(b)(1 )(B) class, Certification ofa class to permit the proper determination of common questions is thus not only appropri ate, but necessary in this case.
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B. Other Requirements ojRule 23(0) In addition to the commonality requirement, Rule 23(a) conditions class certification upon a showing that the proposed class "is so numerous that joinder of all members is impracticable," FED. R. CIv. P. 23(a)( I); that "the claims ... of the representative parties are
typical of the claims ... of the class," ill. 23(a)(3); and that the named plaintiffs "will fairly and
adequately protect the interests of the class." ld . 23(a)(4). No party or objector has claimed that
the proposed class fails to meet any oftbose three requirements, and the Court finds that each is satisfied here.
l. Numerosity "Courts in this District have generally found that the numerosity requirement is satisfied and that joinder is impracticable where a proposed class has at least forty members."
Vista Healthplan, Inc, v. Warner Holdings Co, m, Ltd., 246 F.R.D. 349, 357 (D. D.C. 2007)
(listing cases); ~ also Cohen v, Chilcott, 522 F. Supp. 2d 105, 114 (D.D.C. 2007) (sarne). Roughly 40,000 plaintiffs have filed claims at this point in the Pigford II litigation, and thousands
more may follow. Those thousands of plaintiffs and potential class members are scattered throughout the country. ~ 2010 Monitor Report, App. 5 (showing the successful Pigford I claimants came from morc than forty states). Joining such a vast number of dispersed parties is
not practicable. See Pigford v, Glickman, 182 F.R.D. 341, 347-48 (D.D.C. 1998). The
numerosity requirement is satisfied.
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2. Typicality
The remaining requirements of Rule 23(a) identify "the desired qua1ifications of the representative parties" to a class action, FED. R. elV. P. 23, advisory committee's note (1966 amendment), that the "claims or defenses" of the representative parties be "typical" of the claims of the class, and that the representative parties "fairly and adequately protect the interests of the
class." FED. R. CIV. P. 23(a)(3)-(4). The typicality requirement " is ' intended to assess whether
the action can be efficiently maintained as a class action and whether the named plaintiffs have incentives that align with those of the absent class members SO as to assure that the absentees'
interests will be fairly represented. ", Pigford v. Glickman, 182 F.R.D. at 349 (quoting Baby Neal
for and by Kanter v. Casey. 43 F.3d 48, 57 (3d Cir. 1994)). In other words, " [t]he typicality prerequisite assures that the class representative[s] share[] the issues common to other class members." I RUBENSTEIN, CONTE & NEWBERG, NEWBERG ON CLASS ACTIONS § 3:13.
The three named plaintiffs proposed by the Moving Plaintiffs all share the classwide need for and interest in an equitable distribution of the limited fund available for damage awards. Taken together, the allegations advanced by these plaintiffs are appropriately representative of the fact patterns underlying the claims of other putative class members. Proposed named plaintiffs James Copeland and Marshallene McNeil both allege that they were denied USDA program benefits between January I , 1981, and December 31, 1996, as a result of
racial discrimination. See Am. Compi. 22 (alleging that " [b]etween 1990 and 1992, Mr. Copeland attempted to apply to USDA for an operating loan, but was told repeatedly that the USDA office had lost his applications'); id. ~ 26 (claiming that " [i]n 1982, Ms. McNeil went to
the [Fanners Home Administration] office in Camden, Alabama to request an operating loan, but
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Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 29 of 70
· .. her loan application was denied" based on racial discrimination). The third named plaintiff proposed by the Moving Plaintiffs, Earl Moorer, proceeds not on his own behalf, but, like nwnerous other plaintiffs, as the heir of a family member - in his case, his father, JOM Moorer - who applied for and was denied USDA loan benefits repeatedly between 1981 and 1984 even as local white fanners received the benefits he was denied. See id. 24.
Mr. Copeland, Ms. McNeil, and John Moorer each complained to the USDA about racial discrimination at least once between January I, 1981 , and July I, 1997, but their complaints went unanswered. See Am. Compl. ,22,24, 26. Mr. Copeland and Earl Moorer, on behalf of the Estate of JOM Moorer, were both "late filers" in Pigford I; between October 13, 1999, and September 15, 2000, they petitioned under Paragraph 5(g) of the consent decree for the right to submit late claims, but their petitions were denied, and their claims went unadjudicated. See id. 123, 35. Ms. McNeil, on the other hand, is a "late-late filer." She submitted a 5(g) petition prior to the effective date of the 2008 Farm Bill, but after the deadline established by this Court for the timely submission of such petitions. See id. ~ 27.
Each of these proposed representative plaintiffs alleges the same core facts as all other potential class members: injury resulting from racia1 discrimination by the USDA, followed by complaints about that di scrimination that went unaddressed, and ultimately an unsuccessful and untimely anempt to join the claim resolution process establi shed in Pigford I. Since each of these plaintiffs has the same interest in ensuring equitable division of the available limited fund as do other putative class members, the Court finds the typicality requirement satisfied.
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3. Adequacy of Representation "The final element of Rule 23(a) necessitates an inquiry into the adequacy of representation, including the quality of class counsel, any disparity of interest between class representatives and members of the class, communication between class counsel and the class and the overall context of the litigation." Pigford v. Glickman, 182 F.R.D. at 350 (citing Twelve John Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997». The Court has already found the interests of the representative plaintiffs to be in alignment with those of other putative class members. It also finds that the representation afforded by class counsel is more than adequate. Counsel for the proposed plaintiffs' class are 42 attorneys associated with 20 different law finns. See Mot. for Final Approval, Ex. 2 ([Proposed] Final Approval Order and Judgment) 10. These attorneys serve a wide variety of geographical areas in which likely claimants reside, including Alabama, Arkansas, Florida, Mississippi, North Carolina, Pennsylvania, South Carolina, and Virginia. See id. Among them are several attorneys ~ including Henry Sanders, Fayarose Sanders, David Frantz, and Phillip L. Fraas ~ who were deeply involved in the litigation of class claims in Pigford I and are familiar with the sorts of factual, legal, and administrative issues that may arise in this case. Several members of class counsel have extensive experience in complex litigation in general and in class action litigation in particular. See, ~, Mot. for Prelim. Approval, Ex. 13 at 3 (professional accomplishments of co-lead counsel Andrew H. Marks). In short, the members of this group of counsel collectively offer class members highly relevant legal skill and experience.
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The overall context of this litigation confirms the Court's belief that class counsel

.,I

will provide adequate representation. Although this case, involving many separate legal

complaints and scores of attorneys, could have devolved into an endless series of squabbles

between rival attorneys, class counsel, representing the vast majority of plaintiffs who have filed

complaints under the 2008 Farm Bill, have managed to band together and to negotiate with the

defendant a single comprehensive settlement. Perceiving that late filers and late·late filers might

have adverse interests, see infra at 6 1·62, several class cOlmsel sought to ensure that the two

groups were represented by separate and independent attorneys. See Mot. to Withdraw at 3-4.

Despite the large number of attorneys designated as class counsel, the responses of counsel to the

Orders of this Court have been prompt, efficient, and well-coordinated. Based on the procedural

hi story of this matter, the Court concludes that proposed class counsel will provide more than

adequate representation to class members.

C. The Court's Conclusion on Certification
The Court is satisfied that the requirements of Rule 23 of the Federal Rules of Civil Procedure are fulfilled by the proposed plaintiffs' class. Furthermore, the Court cannot imagine how the claims of the thousands of putative class members could be resolved efficiently and fairly in the absence of class treatment. Accordingly, the Court will certify a plaintiffs' class pursuant to Rule 23(b)(l)(B) of the Federal Rules.

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III. PROVISIONS OF PROPOSED SETILEMENT AGREEMENT A. Overview o/the Claim Resolution Process
The proposed sett lement agreement maintains the two-track claim resolution process created in Pigford I and replicated in Section 14012 of the 2008 Farm Bill, but modifies some aspects of that process in light of the strictly limited funds available for the resolution and payment of cl aims. As in Pigford I, the agreement provides for the creation of two alternative form s of claim resolution, designated Track A and Track B. See SA V. Under Track A,
claimants must prove their claims by substantial evidence. the same evidentiary standard that was
mandated for Track A claims in the Pigford I consent decree. and the standard that is prescribed by Section 14012 of the 200S Fann Bill. Id. Those who prevail in Track A on a claim of discrimination in a credit program are entitled to a maximum of $50,000 in cash, forgiveness of certain categories of debt to the USDA. and tax relief equal to one-quarter of the combined value of awarded cash and debt relief. Id. Il.LL-NN.'
Those claimants who proceed along Track B must. as in Pigford I, prove their claims by a preponderance of the evidence. SA V. If they prevail, those Track B claimants are entitled to a maximum of their proven actual damages or $250,000, whichever is less. Id. Claim detenninations in both Track A and Track B will be made by a neutral third party, the "Track A Neutral" or the "Track B Neutral," and the detenninations of both neutrals are final and not subject to appeal. Id. V.A.S.
, Track A claimants who prevail on a claim of discrimination in a non-credit program are eligible for debt relief, tax relief, and maximum cash payments of $3,000. SA ~ V.
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No award will be paid to any claimant until after detenninations have been rendered on all claims - a process expected to last for approximately a year. Once all claims have been resolved, the cash value of awards payable to successful claimants will be compared to the value of available funds, consisting of the appropriated $1.25 billion, less administrative and
implementation costs and attorneys' fees. See SA 1i1i Y.E.4-5. If payable awards exceed
available funds, awards will be reduced ratably according to a predetennined procedure. First, if the total of Track 8 awards exceeds $100 million, those awards will be proportionately reduced until their total falls below the $100 million cap. Id.' V.E.5.a. [fthe total value of Track A and Track B awards still exceeds available funds, then the awards of late-late filers will be reduced, again on apro rata basis, by up to 30% of their value. Id.' V.E.5.b. If the total value of awards still, even after those reductions, exceeds available funds, then all awards will be proportionately reduced until their aggregate value is equal to or less than the amount of available funds. Id. , V.E.5.c. Awards will then be paid out to successful claimants. [d.~' V.E.8.
B. Method ofDetermining Claims The agreement' s provisions become operational only if this Court's final order
approving the settlement is either upheld on appeal or ceases to be subject to appeal. SA 1i II.L.
Once either of those two conditions is met, members of the plaintiffs' class will have 180 daysroughly six months - to submit their claims for resolution. Id.' 11.0. To do so, each claimant must submit to Epiq Systems, Inc. (the "Claims Administrator") a "Claim Package" that includes. among other docwnentation, the following: (1) a sworn declaration by the claimant in which he or she states, among other things, whether he or she submitted a late-filing request
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under Paragraph 5(g) of the Pigford I consent decree during the relevant time period, and whether he or she has received a determination on the merits of a claim in Pigford I, see id., Ex. C at 3; and (2) a sworn declaration by the claimant's counsel that "the claim is supported by existing law and the factual contentions have evidentiary support." Id. V.A. The claimant must also indicate at that time whether the claim is to be evaluated under Track A or Track B of the claim resolution structure. See id., Ex. C at 4. For those who choose Track A, that choice is finaL See id. Class counsel have committed to providing direct assistance to would-be claimants as they prepare their claim packages and decide whether to proceed along Track A or Track B. See Mot. for Prelim. Approval at 21.4
Once the claimant has submitted a timely and complete Claim Package to the Claims Administrator, the Claims Administrator will determine whether the claimant has established by a preponderance of the evidence that he or she is a member of the plaintiffs' class. SA ~ V.B.4. The Claims Administrator' s determination regarding class membership is final and not subject to review. Id. ~ V.B.s. If the Claims Administrator determines that a claimant has established class membership, and that claimant has elected to proceed along Track A, the Claim Package will be forwarded to the Track A Neutral for review and determination of the claim, Id. ~ V.B.6, The Claims Administrator will retain Track B Claim Packages until the close of the 180-day claim submission period. At that point, the Claims Administrator will notify all claimants who have elected to proceed along Track B of the number of other claimants who have

4

Exhibit C to the Settlement Agreement was the Claim Form claimants were to

submit. Following the Fairness Hearing, the Claim Form was revised and the revised form was

submitted to the Court on October 7, 2011. See Notice of Revision of Proposed Claim Form,

Docket No. 226. At the request oflead class counsel, with the consent of the defendant, the

Court will approve the revised Claim Form in the accompanying Order and Judgment.

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Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 35 of 70
chosen to do the same. Id. ~ V.B.7. At that point, claimants who have selected Track B may opt instead for Track A if they choose to do so and noti fy the Claims Administrator. Id. If they do not so notify the Claims Administrator within a speci fied period of time, their selection of Track B becomes final and irrevocable. Id.
To prevail on a Track A claim, a plaintiffs' class member must show by substantial evidence that the class member (1) "is an African-American who farmed, or attempted to farm, between January I, 1981, and December 31, 1996"; (2) "owned or leased, or attempted to own or lease, farm lands"; (3) "applied, or constructively applied, for a specific farm credit transaction(s) or non-credit benefit(s) at a USDA office between January I, 1981 , and December 3 1, 1996"; (4) was denied the requested loan or benefits. or was provided a loan or benefits late, on tenns less favo rable than those requested, or subject to " restrictive condition[s]"; (5) sustained economic damages as a result of USDA' s handling of the application for a loan or benefits; and (6) "complained of discrimination to an official of the United States Government on or before July I, 1997, regarding USDA's treatment of him or her in response to the application." SA ~ V.C.I. Notably. class members proceeding on Track A under the settlement will not be required, as they would have been under the Pigford I consent decree, to identify a specific "similarly situated white farmer" who received better treatment from the USDA during the relevant time period. The USDA will not participate in the claim detennination process, except to provide infonnation about debt owed by the claimant that may be e li gible for forgiveness if the
claimant prevails. Id. 1 V.C.3. All documentation before the Track A NeutraJ, then. will come
from materials "submitted by the Class Member." U!.
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A class member proceeding under Track B must establish, "by a preponderance of the evidence and through independent documentary evidence admissible under the Federal Rules of Evidence," the same elements that a Track A claimant must, with the additional requirement that a Track B claimant must also show that the "treatment of the [claimant's] loan application(s)
by [theJUSDA was less favorable than that accorded a specifically identified, similarly situated
white farmer." SA ~ V.D.I. As with Track A, the USDA will not participate in the Track B claim determination process, nor are Track B claimants entitled to any discovery from the USDA. Id. V.A.9, II . Unlike the Track B process created by the Pigford I consent decree, the Track B resolution of claims under the settlement agreement involves only documentary evidence and does not require or allow a "mini-trial." See Mot. for Prelim. Approval at 17.
C. Ombudsman
At the request of the Court, the Moving Plaintiffs and the defendant have provided in the settlement agreement for the appointment by the Court ofa neutral third party, known as the "Ombudsman," to serve as the arm of the Court during the implementation of the claim resolution process. See SA VI. It will be the responsibility of the Ombudsman to ( 1) serve as a neutral party to whom complaints or concerns about the claim resolution process may be
presented; (2) work with the parties' counsel and, if necessary. the Court to address any serious
concerns or problems that arise during the implementation of the settlement agreement; and (3) report in writing to the Court, the defendant, and class counsel regarding "the good faith implementation" of the settlement agreeme nt. See id. Unlike the Monitor appointed tmder the consent decree in Pigford I, the Ombudsman will not have any power to reexamine the merits of
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any claim, nor will he or she have the authority to require the defendant to take any particular actions. rd. Vl.C.
D. Implementation Costs, Allorneys' Fees, and Legal Representationfor Class Members Ofthe $1.25 billion made available by the 2008 Farm Bill and the Claims
Resolution Act, a maximum of $38.5 million may be allocated for "implementation costs" "Court-approved admini strative costs associated with implementing" the claims resolution process created by the settlement agreement. SA II.I, R. The costs of the Ombudsman, which should be far less than those associated with other aspects of the settlement agreement, are not included in the $38.5 million reserved for implementation costs, and must be drawn from the $100 million appropriated by the 2008 Farm Bill. rd. ~ II.R, U.
The amount of attorneys' fees payable to class counsel is to be determined as a percentage of$1.25 billion minus $22.5 million ($1,227,500,000) - a calculation presumably intended to remove expected implementation costs from the fund, the size of which determines class counsel's fees. After the completion of the claims resolution process, the Court will approve a lump-sum fee for class counsel that will not exceed 7.4% of$I,227,500,000 ($90,835,000) or be less than 4.1 % of$I ,227,500,000 ($50,327,500). SA II.O. That fee will be divided among class counsel pursuant to the terms of the settlement agreement and a separate
contract executed between and among class counsel. See id. 1 X.E; Mot. for Fees, Ex. A.
As required by the settlement agreement, class counsel will represent any Track A claimant during the claims resolution process without seeking or receiving any additional fee from the claimant. SA, VIlI.A.2. Or if they choose, Track A claimants may retain non-class
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Case 1:08-mc-00511-PLF Document 232 Filed 10/27/11 Page 38 of 70
counsel to represent them; such counsel may seek a fee of up to 2% of any award ultimately
made to a Track A claimant that he or she represents. ld. ~ x.A. Track B claimants, regardless
of whether they are represented by class counsel or another attorney, may be required to pay up to 8% of any award they receive in exchange for legal representation. Id. No class counsel designated by the accompanying Order and Judgment may seek to enforce the tenns of any existing contingency fee agreements with class members.
E. Provisions Required by the Claims Resolution Act The Court notes that the funds appropriated by the Claims Resolution Act become available to finance the settlement only upon a finding by the Court that "the Settlement Agreement [has been] modified to incorporate the additional tenns contained in subsection (g)" of the statute. Claims Resolution Act § 201 (b). The Court finds that this requirement of the statute has been satisfied. In particular, the settlement agreement has been modified to provide that (1) the Track A and B neutrals will be approved by the Court, the USDA, and the United States Attorney General, see SA ,~ II.JJ, RR; (2) all Track A and B neutrals must take an oath administered by this Court that "he or she will detennine each claim faithfully, fairly, and to the best of his or her ability," see id.; (3) counsel representing any claimant in the claims resolution process must produce a sworn statement to the effect that "to the best of the attorney's knowledge, information, and belief fonned after an inquiry reasonable under the circumstances, the claim is supported by existing law and the factual contentions have evidentiary support," id. ~ V.A.l.c.; (4) any Track A or Track B neutral may request more documentation or evidence from a claimant "if, in the [neutral's] judgment, additional documentation and evidence would he
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necessary or helpful in deciding the merits of a particular claim, or if the [neutral] suspects fraud regarding a particular claim," id. ~~ V.C.4, D.4; and (5) the Claims Administrator will prepare and provide to the USDA, the USDA's Inspector General, the Attorney General, and lead class counsel a report accounting for the use of all funds disbursed pursuant to the settlement agreement. See id. ~ V.F.
IV. FAIRNESS OF PROPOSED SETTLEMENT AGREEMENT Under Rule 23 of the Federal Rules of Civil Procedure, no class action may be dismissed, settled, or compromised without the approval of the Court. FED. R. CIV. P. 23(e). Before giving its approval, the Court must direct the provision of adequate notice to all members of the class, id., conduct a "fairness hearing," and find, after notice and a hearing, that the "settlement is fair, adequate and reasonable and is not the product of collusion between the parties." Thomas v. Albright, 139 F.3d 227, 231 (D.C. Cir. 1998). In performing this task, the Court must protect the interests of those unnamed class members whose rights may be affected by the settlement of the action. In this circuit there is " no obligatory test" that the Court must use to determine whether a settlement is fair, adequate, and reasonable. Osher v. SCA Realty I, Inc., 945 F. Supp. 298,303-04 (D.D.C.1996); see also Radosti v. Envision EM!, LLC, 717 F. Supp. 2d 37, 54 (D.D.C.2010). Instead, the Court must consider the facts and circumstances of the case, ascertain what factors are most relevant in the circumstances, and exercise its discretion in deciding whether approval of the proposed settlement is fair. By far the most important factor is a comparison of the terms of the compromise or settlement with the likely recovery that plaintiffs
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would realize if the case went to trial. ~ Pigford v. Glickman, 185 F.R.D. at 98 (collecting cases). In addition, courts frequently find the following factors relevant in assessing the fairness of a proposed settlement: (I) "whether the settlement is the result of ann' s-length negotiations" ; (2) "the status of the litigation at the time afthe settlement"; (3) "the reaction of the class"; and (4) "the opinion of experienced counseL" Radosti v. Envjsion EM!. LLC, 717 F. Supp. 2d at 55. Having carefully considered all afthe objections that have been filed with the Court or expressed at the Fairness Hearing, the Court concludes that the settlement is fair, adeq uate, and reasonable.s

S

The following individuals andlor organizations submitted written or oral

comments or objections: the Martin Objectors (Lany Morgan, M.e. Moore, Willie Parker, Sr.,

Vernon Ross, Sr., Blanche Ross, Lewis Walker, Thomas Walker, lnez Washington, Steven

Bailey, and O.C. Anthony); Thomas Burrell, President of the Black Fanners and Agriculturalists

Association; Ralph Paige. Executive Director of the Federation of Southern Cooperatives Land

Assistance Fund; Dr. Dewayne L. Goldmon, Chainnan of the National Black Agricu1tural

Alliance; Tracy Lloyd McCurty, representing the Rural Coalition; John Zippert, representing the

Federation of Southem Cooperatives; John W. Boyd, Jr" President of the National Black Farmers
Association; Bernice Atchison, President of the Black Fanners of emiton County, Alabama;

Justin and Willa Fouts; Booker T. Woodard; Diahann C. Stevens; Errol Von Hart; Eddie Lee

Gray; Muhommad Rabbalaa and Henry Bunis; Karla K. Adams and Tenie L., Theodore B., Brad

E., Kerry F., and Ava L. Bates; Lillie M. Wingard; Robert E. Walker; M. Murline Price; Joyce A.

Smith; Doris Gray; James Coleman; William Paramore; Gloria Davis Gi lmore; Carl Ulyssess

Eggleston; Jonathan Grant; Melvin Bishop; Obie Beal; and Pauline and Johnny Hughes.

Although the Court instructed potential objectors in its Preliminary Approval Order that they must include in their objections a "statement explaining the basis for the objector's belief that he or she is a Class Member," most objectors failed to do so. In re: Black Fanners Discrimination Litig.. Misc. No. 08-0511, Order Granting Preliminary Approval of Settlement Agreement 28(a) (D. D.C. May 13,2011). Based on the record before the Court, it appears that only the following individuals may have standing to make objections: Bernice Atchison, Larry Morgan, Blanche Ross, Thomas Walker, inez Washington, Errol Von Hart, Eddie Lee Gray, Doris Gray, William V. Paramore, Lille M. Wingard, M. Murline Price, Karla K. Bates, Terrie L. Bates, Bred E. Bates, and Kerry F. Bates. ~ Pigford v, Glickman, 185 F.R.D. at 103 n.17 (citing Mayfield v. Barr, 985 F.2d 1090 (D.C. Cir. 1993))(in general, only putative class members have standing to object to proposed settlement agreement). Nevertheless, the Court has carefully considered all comments or objections submitted, and discusses them where appropriate.
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A. The Process a/Settlement and Context a/the Litigation 1. Timing and Negotiation of Settlement
The Court has received very few substantive objections concerning the manner and context in which the settlement was negotiated - an unsurprising state of affairs given the natwe of this litigation and of most of the counsel involved with it. As the text of Section 14012 of the 2008 Farm Bill makes clear, that statute is intended to provide certain African-American farmers who were unable to pwsue relief under the Pigford I consent decree a second chance of sorts, an opportunity to gain relief similar to that afforded by the consent decree by engaging in a dispute resolution process similar to the one created by the decree. See Am. 2008 Farm Bill § 14012(d)-(f). As a result, when counsel in this case initiated settlement negotiations, they already had a template for their efforts, one that had been field-tested for roughly ten years: the Pigford I consent decree. Unlike in many class actions, here both plaintiffs' counsel, among whom are a number ofattomeys who participated in Pigford I, and defendant' s counsel, at least one of whom participated in Pigford I, were in a position from the outset of this case to gauge the defendant's liability, the sort of proof that would be required to establish plaintiffs' claims, the types of legal and factual questions that might arise during the adjudication process, and the range of problems that would arise in the management of the litigation. Class counsel and defendant's counsel thus were ideally situated to assess the strength of their litigating positions and to negotiate accordingly.
At the same time, despite the wealth of knowledge made available to counsel in this matter by the litigation in Pigford I, there was no rush to settlement in this case. Class counsel, led by Andrew H. Marks of Crowell & Moring, and defendant's counsel, led by Michael
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Sitcov of the Department of Justice, negotiated the tenns of the agreement currently before the Court for almost two years, exchanging more than 20 drafts of the settlement during the process.
Mot. for Prelim. Approval, Ex. 13~' 2, S; Sept. I Tr. at 26 (statement of Mr. Marks). From all
accounts, the negotiations were "vigorous" and at "ann's length." Id. There is no hint in the record, and no suggestion by any objector, that the attorneys who negotiated the tenns of the proposed agreement were anything other than professional and zealous in the defense of their respective clients' interests during the negotiation process.
The Martin Objectors have suggested, in a conclusory manner, that plaintiffs' counsel fai led to engage in sufficient discovery before accepting the settlement agreement that has been proposed. According to the Martin Objectors, "[t]here is no evidence. absent di scovery, to determine the strength of the Plaintiffs' cases, or, therefore, what a proper settlement amount might be." Martin Obj. at 5. While insufficient discovery is a charge frequent ly rai sed by those objecting to a proposed class settlement, the claim that class counsel were not sufficiently familiar with the factual underpinnings of this case is simply not credible. This case rests upon the same factual predicates as Pigford I, in which "'a literal mountain of discovery [was] provided and reviewed.... Pigford v. Glickman, ISS F.R.D. at 99 (citation omitted). USDA's liability fo r widespread discrimination against African-American fanners in the relevant time period is not in di spute. See supra at 4. In addition, the 12 years of proceedings that have taken place under the Pigford I consent decree have provided counsel in this case with a huge amount of data - including the detailed annual Monitor's Reports - from which to extrapolate the likely success rate of Pigford II plaintiffs. Against this backdrop, the assertion that "[t]here is no
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evidence" from which class counsel might estimate the strength of the plaintiffs' case is profoundly unpersuasive.
As the foregoing analysis indicates, the proposed settlement agreement was the result of ann' s-Iength negotiations by experienced counsel who had extensive knowledge about the factual basis of the case. As a result, the settlement is entitled to "[a] presumption of fairness, adequacy, and reasonableness." Radosti v. Envision EMI. LLC., 717 F. Supp. 2d at 56.
2. Adequacy of Notice "When a class is certified and a settlement is proposed, the parties are required to provide class members with the <best notice practicable under the circumstances. '" Pigford v. Glickman, 185 F.R.D. at 101 (quoting FED. R. Clv. P. 23(c)(2)). In this case, class members have received more than adequate notice and have had sufficient opportunity to be heard on the fairness of the proposed settlement. Notice of the proposed settlement was provided promptly, allowing potential class members ample time to lodge objections, and was disseminated in a manner calculated to reach as many of those putative class members as was practicable. The best possible source of the names and addresses of potential class members, the Pigford I Facilitator's list of 5(g) petitioners, was put to good use; postcard notice of the proposed settlement was mailed directly to almost 90,000 possible class members on June 3, 2011 , some ten weeks before the deadline for filing a written objection. See Mot. for Final Approval, Ex. B ~ 6. Class counsel also retained a finn specializing in the provision of class action notice, which developed and
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implemented a comprehensive scheme for reaching a vast array of potential class members by use of radio, television, print, and Internet campaigns. See supra at 16-17.
Although the content of the notice provided by class counsel varied somewhat depending on the format in which it was presented, every form of notice was carefully designed to give any potential class member easy access to detailed information regarding ""the terms of the proposed settlement and ... the options that are open to [class members] in connection with
[the1proceedings'" in this Court. Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072,
1078 (2d Cir. 1995) (citation omitted). And, unlike in some class action cases, despite the complexity of the case, the notices were written in easy-to-understand plain English.
Short-form notices gave possible class members an overview of the subject matter of this litigation, the major forms of relief that might be available to them under the proposed settlement, and their right to submit objections. See,~, Mot. for Prelim. Approval, Ex. 5, Attach. 3, App. 4 (postcard notice). Those short-form notices also directed potential class members to both a toll-free telephone number and a website through which an individual could obtain long-form notice. See id. Long-form notices provided detailed but accessible summaries of the nature of this litigation, the requirements for class membership, the terms of the proposed settlement, the date, location, and purpose of the Fairness Hearing, and the manner in which objections could be submitted. See id., App. 5 (long-form notice). Putative class members were also instructed on how to file a claim in the event that the settlement is approved. See id. at 8. The notice provided a toll-free number that could be used to contact class counsel. See id. at 9. In short, class counsel's notice program was exceptionally well-designed by Kinsella Media,
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LLC to reach as many potential class members as was practicable and to provide in a comprehensible way exactly the information that such class members might want and need.
3. Responses of Class Members Potential class members were given a lengthy period in which to file objections to the settlement, and the Court has given careful consideration to all objections, even those that were filed late, that did not meet the substantive or procedural requirements outlined in the Court's Preliminary Approval Order, or that were submitted by individuals who did not attempt or otherwise failed to establish that they are members of the proposed settlement class. As the Court has already discussed, see supra at 17, the proposed plaintiffs' class in this matter could encompass tens of thousands of individuals. In light of that fact, it is significant that only approximately 15 likely class members have made objections to the settlement. ~ Pigford v. Glickman , 185 F.R.D. at 102 (noting as a factor weighing in favor of settlement approval that "there are relatively few objections to the settlement in comparison with the size of the class"). By contrast, there is powerful evidence that the vast majority of possible class members are enthusiastic about the settlement and welcome the opportunity to pursue reliefWlder its provisions. According to the Claims Administrator, 62,7]5 individuals have already requested a Claims Package so that they may participate in the claim resolution process once the settlement is approved and implemented. Mot. for Final Approval, Ex. B ]3. Given the overwhelming indications of support for and interest in the settlement and the comparatively minuscule number of objections to it, the Court easily concludes that the mere fact that some potential class
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members dislike aspects of the settlement is not sufficient to demonstrate that the settlement is not fair and adequate. See Pigford v. Glickman, 185 F.R.D. at 102.
B. Substantive Fairness oJthe Settlement As our court of appeals has said, in considering a proposed class action settlement, the Court first must compare the benefits afforded to class members under the settlement with the likely recovery that plaintiffs would have realized if they pursued the resolution of their claims through litigation in court. See Thomas v. Albright, 139 F.3d at 231. The Court must look at the settlement as a whole and should not reject a settlement merely because individual class members claim that they would have received more by litigating rather than settling. The Court should scrutinize the tenns of the settlement carefully, but the discretion of the Court to reject a settlement is restrained by the "principle of preference" that encourages settlements. See Durrett v. Rous. Auth. of City of Providence, 896 F.2d 600, 604 (I st Cir. 1990); Radosti v. Envison EM!, LLC, 717 F. Supp. 2d at 51; In re Vitamins Antitrust Litig., 305 F. Supp. 2d 100, 103 (D.D.C. 2004); Pigford v. Glickman, 185 F.R.D. at 103. Furthermore, '~he Court [should not] make the proponents of the agreement justify each tenn of settlement against a hypothetical measure of what concessions might have been gained." Stewart v. Rubin, 948 F. Supp. 1077, 1087 (D.D.C. 1996). The relevant question is whether the structure of the settlement and the substantive relief, including the amount of money provided, are fair and reasonable when compared with the recovery that plaintiffs likely would have realized if their claims were decided through the judicial process. In this case, the benefits offered to plaintiffs by the settlement agreement are so substantial, and the likely outcome of this case to individual plaintiffs if it were
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to proceed to a final resolution in court is so dismal, that the Court is firmly convinced that the

,

settlement is fair, adequate, and reasonable.

I

I. Likely Results of Settlement Contrasted with In-Court Adjudication

In the absence of the proposed settlement, the plaintiffs' prospects for recovery are

sobering. The $1 .15 billion appropriated by Congress in the Claims Resolution Act is

specifically earmarked for the funding of the proposed settlement agreement and its availability is

contingent on the approval of a settlement. Indeed, the statute precisely identifies the agreement

funded as the one executed by class counsel and the defendant on February 18,2010, as

subsequently revised, if at all, by agreement of the parties. See Claims Resolution Act

§ 20 l(a)(I). Without that additional $l.l5 billion - i.e., in the absence of an approved

settlement agreement - the only funds available for prevailing plaintiffs in this matter are the

$100 million appropriated by Section 14012 of the 2008 Farm Bill. See Am. 2008 Farm Bill

§ 14012(c)(2). Although the Farm Bill originally suggested that more funds might be available

for the payment ofclaims in this case as the initial $100 million fund was depleted, see 2008

Farm Bill § 14012(i)(2), j(2), the Claims Resolution Act amended the Farm Bill to remove that

possibility and explicitly provided: "If the Settlement Agreement is not approved as provided in

this subsection, the $100,000,000 of funds ... made available by section 14012(i) of the [2008

Farm Bill] shall be the sole funding available for Pigford claims." Claims Resolution Act

§ 20 I(b) (emphasis added). At $50,000 per claim, see supra at 32, that $100 million would cover

Track A cash damages - excluding damages paid in the form of loan forgiveness and tax relief

- for only 2,000 of the tens of thousands of plaintiffs in this case.

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If the plaintiffs were to pursue relief solely through litigation in this Court and not through the claim determination process created by the settlement agreement, the fonnidable obstacles to a reasonable recovery for prevailing plaintiffs would derive not only from the grossly insufficient funds available for the payment of claims, but also from staggering, perhaps insunnountable, case management problems. The 23 complaints filed in this Court under
Section 14012 of the 2008 Fann Bill name 40,000 individual plaintiffs. Section 14012 provides that the claim of every plaintiff should be determined by this Court. See Am. 2008 Fann Bill § 14012(b), (e)(I)(B). Adjudication of individual claims on such a massive scale would take decades. ~ Pigford v. Glickman, 185 F.R.D. at 94. Indeed, any judicial adjudication of the
claims authorized by Section 14012 would be so "wunanageable," id., that it is almost impossible not to conclude that Congress expected and intended this matter to be resolved by a class action settlement.
Furthermore, in the absence of settlement, it is unclear that the severely limited fund available for the payment ofawards could be distributed equitably among prevailing plaintiffs. Under the proposed settlement, the equitable division of available funds is ensured because individual adjudications will occur swiftly, in approximately a year, and payments from the fund will be made to prevailing claimants only once the amount of all awards is determined.
In contrast, in the absence of the settlement and the certification ofa Rule 23(b)(I)(B) limited
fund class, it might not be possible for the Court to delay the payment of awards pending the adjudication of all claims - meaning that available funds would be exhausted by payments to prevailing claimants long before all claims were decided. Even if payments could be delayed, adjudication of all claims would be so time-consuming that payments to claimants might not be
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made for many years. Such a result is undesirable in a case where the injuries to be redressed are already decades old and many of those likely entitled to relief are elderly or already deceased. It is also contrary to the intent of Congress, which expressed its wish in the 2008 Farm Bill that the claims of plaintiffs in this case "be resolved in an expeditious and just manner." Am. 2008 Farm Bill§ 14011.
Some of the individuals who have objected to the proposed settlement appear to be proceeding under the misapprehension that African-American fanners who were unable to present their claims in Pigford I may obtain resolution of those claims by filing a complaint under a statute other than Section 14012 of the 2008 Fann Bill. For example, Mr. Thomas Burrell, president of the Black Fanners and Agriculturalists Association, asserted at the fairness hearing and in a written submission, ~ Burrell Notice ~~ 27-28, that "the 66,000 or soD claimants who were denied entry into Pigford I" may still file complaints in court under Section 741 of Public Law No. 105-277, the 1998 statute that revived certain stale ECOA claims by permitting them to be filed at any time within two years of the statute's enactment. See PUB. L. No. 105-277, § 741; supra at 4. Mr. Burrell is simply wrong. The Pigford I consent decree by its terms extinguished the ECOA claims against the USDA of all members of the Pigford I plaintiffs' class who did not opt out of the consent decree by August 30, 1999. ~ Consent Decree ~ 18; Pigford v.
Veneman, 208 F.R.D. 21, 23 (D.D.C. 2002). Thus, no Pigford claimant who did not opt out of
the class by August 30, 1999, could pursue his or her Pigford claim in court, whether under Section 741 or otherwise.
Those individuals who fit the definition of the plaintiffs' class in Pigford and who filed a timely opt-out notice were permitted to pursue their claims under ECOA and Section 741
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in court rather than under the consent decree; but to do so, they had to file in court a complaint setting out their claims prior to the end of the statute of limitations period established by Section 741 - that is, on or before October 21, 2000. Thus, none of the "66,000 orso[] claimants," by Mr. Burrell's calculation, "who were denied entry into Pigford J" can, at this late date, pursue their Pigford claims under Section 741 and/or ECOA. Their only avenue of relief is Section 14012 of the 2008 Farm Bill.
As the Court has made clear, those with claims under Section 14012 are faced with two drastically different possibilities for resolution of those claims: a decades-long process of in-court adjudication that may end by providing little or no recovery for most claimants, or the alternative, out-of-court claims process created by the proposed settlement agreement, which would provide claimants with a much larger potential recovery and permit the payment of awards in one to two years. The merits of these options are not similar; the settlement agreement affords the far better result. Furthermore, in light of various statutory and financial constraints, the settlement agreement strikes a fair, reasonable, and adequate balance between the competing concerns of all affected parties.
2. Breadth of Plaintiffs' Class Various objectors have complained that the plaintiffs' class contemplated by the settlement agreement is either too narrow or too broad. A number of objectors, most prominently those represented by attorney Precious Martin, argue that the class is too broad because it does not permit any individual falling within its definition to opt out of the class and, by extension, out
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ofthe settlement agreement. See Martin Obj. at 12-13. Indeed, the Martin Objectors assert that
any class settlement that does not pennit opt-outs is unconstitutional. ~ iQ. The Court is aware
of no authority establishing such a rule. On the contrary, "courts shouJd not pennit opt-outs when doing so would undermine the policies behind (b)(I) ... certification[.J" Eubanks v. Billington, 110 F.3d 87,94-95 (D.C. Cir. 1997); see also Keeps..gle v.lohanns, 236 F.R.D. I,
3-4 (D. D.C. 2006) (same). In this case, permitting opt-outs would destroy the fairness of the proposed
settlement and defeat the purpose of certification of a Rule 23(b)(I)(B) class. The settlement
agreement addresses the problem of insufficient available funding by providing for delayed payment of awards and, if necessary. the pro rata reduction of awards to ensure that similarly situated claimants receive the same recovery. See gmm at 33. If class members were permitted
to opt out of the claim resolution process created by the settlement agreement, they could pursue their claims in court and avoid both delayed payment of awards and any equitable reductions in the amount of their recovery, destroying the safeguards intended to provide for the fair di stribution of limited fund s. Furthennore, if presented with the opportunity to escape from the restrictions imposed by the settlement agreement, plaintiffs would likely opt out in large numbers, rendering the agreement a dead letter. Opt-outs are thus contrary to the interests of the plaintiffs' class as a whole and caMot be pennitted.
Other objectors have suggested that the proposed plaintiffs' class is too exclusive. They argue that this litigation should afford relief to "the large number ofactive fanners who were outright denied or denied proper debt relief in the first Pigford settlement," NBAA Letter at 5, or individuals who filed late or incomplete claim packages or petitions for Monitor review
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in Pigford I. See Federation Letter at 2. The definition of the plaintiffs' class contained within the settlement agreement, however, tracks the language of the 2008 Farm Bill, see supra at 18, and encompasses every individual authorized by the statute to pursue relief under its provisions. Pigford I claimants whose claims under the consent decree were presented to and denied by the Adjudicator or the Arbitrator are not eligible for any relief under the statute, See Am. 2008 Farm Bill § 14012(b), The settlement agreement cannot provide relief to those with no legal entitlement to it.
3. Adjudication Process Perhaps the most difficult problem confronted by the negotiators of the settlement agreement was the need to balance, on one side, the interests of all parties and the United States itself in the accurate determination of claims, and on the other, the practical reality that most class members, because of the passage of time and the failure of the USDA to investigate civil rights complaints during the relevant time period, cannot meet the stringent evidentiary standards required in traditional litigation to prove their claims. It was widely felt by all parties in Pigford I that drastic remedial action was required in light of the USDA's history of discrimination, and that "class members' lack of docwnentation [oftheir claims] [was] at least in part attributable to the passage of time which hard] been exacerbated by the USDA's failure to timely process complaints of discrimination." Pigford v, Glickman, 185 F.R.D. at 94. Therefore, Track A, with its lowered burden of proof, was designed to provide 'virtually automatic" relief to those who had " little or no documentary evidence," Id. at 95. Yet, because of the similarly situated white farmer requirement, that turned out not to be the case; only 69010 of Track A claimants prevailed,
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even after Monitor review of the Adjudicator's claim decisions. See 2010 Monitor Report at 10. In light of that fact, some commenters have suggested that the Track A adjudication process should be less rigorous than the settlement agreement proposes. See,~, NBAA Letter at 5 ("[O]nce a Black farmer proves that he is an eligible party, the evidence of discrimination should include information that could easily be provided by the complainant or USDA. ").
Set against any impulse to ease the requirements of the Track A adjudication process is the need to ensure that relief goes to those who truly are entitled to redress - those who were victims of USDA discrimination during the relevant time period. This interest is particularly strong in a limited fimd case, where any erroneous award reduces the total pool of money available for plaintiffs with meritorious complaints. At the same time, the existence of a limited fund of available assets that must be used both to pay awards and to cover implementation costs increases the pressure to keep those implementation costs - including the costs of adjUdication - low.6
Finally, the congressionally established limitation on the liability of the government in this case removes the defendant's financial incentive to contest claims, for the amount that may be paid to claimants, regardless of how many claimants are successful, is fixed, while the government incurs more and more costs every time the Department of Justice or the Department of Agriculture becomes involved in the adjudication process. And in fact, the settlement agreement provides that neither agency will oppose claims made in the adjudication

6

Furthennore, it would be difficult to imagine a less rigorous standard than the

"substantial evidence" burden as defined in the settlement agreement, SA, V.C, in combination

with the elimination of the requirement in Track A to show that a similarly situated white farmer

was treated more favorably by USDA. Compare SA, V.C, with Consent Decree ~ 9(a)(i)(C).

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process; nor may any claimant obtain discovery from the USDA, with the exception of info nnation about the claimant's own debts. See SA V.A.9. Those provisions of the agreement will dramatically reduce the defendant' s costs and accelerate the rate at which claim determinations may be made; they will also, on balance and in combination with the elimination of the requirement that Track A claimants identify a "similarly situated white fanner," see supra at 35, likely lead to an increase in the number of Track A claimants who are able to prevail on their claims. At the same time, however, the non-participation of the USDA in the adjudication process removes one means of ensuring accurate claim determinations. In the absence of infonnation supplied by the USDA, plaintiffs' claims will succeed or fail based solely on the strength of the claimants' submissions - their level of detail and coherence, their consistency, and their credibil ity.
It is clear from the filings of class counsel and from the settlement agreement itself that both the Moving Plaintiffs and the defendant are sensitive to the competing concerns at play in the claim determination process and have structured that process accordingly. While the defendant has little if any financial incentive to be concerned about the structure of the adjudication process, it does, as a goverrunent agency, have a fiduciary duty to ensure that public fund s are disbursed responsibly and with a reasonable likelihood of reaching their intended recipients.7 In the Court's view, it has fulfilled that duty. Working within the constraints

7

That fiduciary duty includes the responsibility to investigate any fraudulent claims

by claimants, as well as scams on and misrepresentations made to claimants. As was made clear

at the Fairness Hearing, there is evidence that such scams and misrepresentations have taken

place in the past and continue to be of concern to claimants and their attorneys today. See Sept. 1

Tr. at 160-64 (statement of Ms. Rose Sanders). In add ition, class counsel and the neutrals shall

promptly bring to the attention of the Inspector General of the Department of Agriculture, to the

United States Department of Justice, and to the Ombudsman appointed by the Court pursuant to

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imposed by Congress' limitation of available funding, class counsel and defendant's counsel have proposed a system of adjudication that would subject each claim to careful and rigorous review while keeping costs in check.
Track A claims, subject to a lower standard of proof, will each be assessed at least twice, by two separate reviewers. First, one of the attorneys at BrownGreer, "a litigation support and claims management firm devoted to mass claims resolution, litigation management, and claims administration," will review each claim and issue a recommended decision on its merits.
Supp. Mem. at 2-3. Then an attorney working for the Track A Neutral, JAMS , with
BrownGreer's recommendation in hand, will review the claim de novo and render a decision. Id. at 4. If that decision is a denial of the claim, the claim determination will be reviewed again by another JAMS adjudicator, one with experience in the adjudication of Pigford I claims. Id. at 7. This iterative review process will reduce errors in claim determinations and subject each claim to thorough examination.8
Because Track A claim determinations will be based largely on the quality of the claimant's submissions, it is essential that the Track A Neutral have established protocols for assessing the credibility of factual assertions and for drawing the line between persuasive and unpersuasive claims. The Court is convinced that class counsel are aware of this necessity and

the settlement agreement information that they receive relating to potential scams on claimants and/or misrepresentations being made to claimants relating to the claims process or the relief available to claimants under the settlement agreement.

•

BrownGreer thus assists JAMS by, as class counsel puts it, "serv{ing] as an

additional quality control check on the process, providing a second set of eyes for each claim,

and [providing] an additional review for detecting potential fraud in the process." Supp. Mem.

at4.

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have taken appropriate steps to ensure that the necessary protocols are in place. First, the Court notes that the team from JAMS that will review Track A claims consists of very experienced attorneys/arbitrators and will be led by Lester Levy and Nancy Warren, both of whom have extensive knowledge of the types of claims at issue in this case because they adjudicated Track A claims in Pigford I. See Supp. Mem. at 2, 9. Indeed, 10 of the 16 adjudicators from JAMS were involved in the detennination of claims in Pigford LId. at 2.
Second, Track A neutrals from JAMS, as well as claims reviewers from BrownGreer, will undergo initial and continuing training on such crucial matters as fann loans, applicable legal standards, and USDA procedures. See Supp. Mem. at 5-6. The form of continuing training will be detennined by a quality control process whereby random samples of claim detenninations are reviewed by a JAMS team led by Lester Levy. Id. at 7. If that review of randomly selected claims demonstrates weaknesses or inconsistencies in the claim detennination process, neutrals will be retrained accordingly. See id. BrownGreer will subject its claims review process to similar quality controls and will also retrain its attorneys as necessary. Id. at 7.
Finally, the Track A neutrals have already begun a process intended to generate specific guidelines for the review and detennination of claims presenting various types of factual allegations. JAMS and BrownGreer are currently testing the Track A adjudication process by deciding 300 "'mock' claims prepared by Class Counsel after interviewing 300+ putative class Members and assisting them in completing draft Claim Fonns," See Supp. Mem. at 5~6. This test run will pennit the development of consistent approaches to various factual patterns and will pennit training of neutrals to be tailored to clarify concepts and standards that have proven
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difficult to apply or understand. See id. at 6. The Court is satisfied that this extensive plan for the preparation and continuing training of Track A neutrals, combined with the iterative claim determination process described above, will yield fair results for Track A claimants.
The Track B adjudication process, as in the past, is relatively demanding, requiring that claimants prove their claims by a preponderance of the evidence and by supplying "independent documentary evidence." SA ~ V.D.I. The results of Track B claims will be similarly fair, since those claims will be assessed by Michael Lewis, the Pigford I Arbitrator, who has immense experience in and knowledge of the factual and legal issues likely to arise in the claim determination process. See Supp. Mem. at 6 n.6.
A number of individuals have objected that the proposed settlement agreement does not permit claimants to appeal adverse decisions by the Track A or Track B NeutraL See, ~. Federation Letter at 2; Burrell Obj. ~ 45. The Court concludes that the absence of such an
appeal option or a court-appointed Monitor (as in Pigford Ddoes not render the settlement
agreement unfair, unreasonable, or inadequate. As the Court has explained, class counsel have set in place numerous safeguards against erroneous claim determinations, including an additional layer of review for every adverse determination by a JAMS neutraL See Supp. Mem. at 7. These safeguards lessen the benefit to be gained by an appeals process. Furthermore, under the settlement agreement - unlike the consent decree in Pigford I - Track A claimants need not prove they were treated less favorably than a similarly situated white farmer, and no government counsel will be opposing adequately documented claims. Therefore, there is much less need for an appeals process or Monitor review. Finally, an appeal option would significantly increase the cost of the claim determination process - reducing the funds available for the payment of
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awards - as well as slow that process considerably, delaying the distribution of any awards to successful claimants. Given the costs and benefits of an appeal process or even a Monitor oversight and review, the Court concludes that the decision of the Moving Plaintiffs and the defendant not to offer such a process under the settlement agreement does not make the agreement or the process it established unfair or unreasonable.
One commenter has suggested that unsuccessful Track B claimants should be allowed subsequently to pursue Track A relief. See NBAA Letter at 5. That suggestion is not feasible. "If there were a fallback mechanism to provide relief for claimants who failed in their Track B claims, every class member would choose Track B and the settlement structure would collapse under its own weight." Pigford v. Glickman, 185 F.R.D. at 107 (responding to the same suggestion).
As the foregoing analysis indicates, structuring the claim determination process in this matter required the careful balancing of many competing factors. The balance ultimately reached by the Moving Plaintiffs and the defendant is fair, adequate, and reasonable.
4. 180 Days for Submission of Claims The settlement agreement requires completed Claim Packages to be submitted to the Claims Administrator within 180 days of the date the agreement becomes effective. See supra at 33. Any class members who fail to submit a complete Claim Package within that window of time will be unable to receive any relief under the agreement or the 2008 Farm Bill. Some objectors assert that 180 days is an insufficient amount of time for the preparation and submission of claims. See, ~, Federation Letter at 2. None of these objectors, however,
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suggests a preferable length of time, or supplies any specific reasons to believe that 180 days will

I

be insufficient. As the Court has already found, the notice program instituted by class counsel is

more than adequate, see supra at 43-45, and class counsel have represented that after the approval

of the settlement they will continue to provide notice; within the l80-day claim submission

period, postcard reminders will be sent by mail to potential class members on the Facilitator's

5(g) list who have not yet filed a claim. See Mot. for Prelim. App., Ex. 5, Att. 3 at 9. Then, at a

second. later point during the submission period, the Claims Administrator will contact by phone

those potential class members on the Facilitator's list who have not filed a claim. Id. Finally,

once the settlement is approved, class counsel will work with community and trade organizations

to disseminate news of the settlement by word of mouth. Id. at 8. In addition to this extensive

continuing notice program, class counsel will be working during the 180-day window to provide

class members with direct assistance in the preparation of Claim Packages. See Mot. for Prelim.

Approval at 21. In light of this extensive plan for outreach to potential claimants, it is not unreasonable to require class members to file their claims within a 180-day period.9

5. Fonns of Relief The forms of relief offered to class members through the settlement agreement are reasonably chosen and structured in light of the financial constraints imposed by Congress. One commenter suggested that debt relief should be emphasized in the settlement agreement. See NBAA Letter at 4. In fact, the settlement agreement has always provided for significant debt relief. Track A claimants who prevail on a credit claim are entitled to forgiveness of certain

9

As provided in the accompanying Order and Judgment, the 180-day period will

commence on November 14,2011 and end on May 11 ,2012.

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outstanding loans if those loans are related in specified ways to the claim on which the class
member prevailed. See SA n.MM. Acknowledging that claims for debt relief are "highly
technical /' class counsel have arranged for all such claims to be detennined by a group of neutrals "who have extensive experience reviewing and analyzing USDA debt records and all relevant comrmmications from the Pigford Monitor' s office." Supp. Mem. at 8. JAMS will also secure the services of a debt relief expert to assist in the detennination of claims for debt relief.
See id. at 8-9. Finally, the settlement agreement provides that the USDA will not "accelerat[e] or
foreclos[eJ any FSA Farm Loan Program Loan held by a Class Member that originated between
January 1, 1981, and December 31, 1996," unless and until the class member in question is
reported not to be entitled to relief under the settlement. SA ~ VII.A. One individual has objected to the $250,000 cap imposed on Track B awards by
the settlement agreement. See Gray Letter at I. That cap represents a reasonable compromise reached by balancing conflicting interests and in light of the restricted funding that is available for awards to class members. First, the cap serves the purpose of preventing a small number of claimants from receiving a highly disproportionate amount of the limited fund. In Pigford I, 101 Track B claimants - just 0.6% of the claimants who prevailed under the consent decree received 4% of total monetary relief awarded. See 20 I0 Monitor Report at 10, 12, 20. Given the strong possibility that Track B claimants might in this case be awarded a recovery significantly disproportionate to their numbers and thus divert a disproportionate percentage of the limited
available funds away from other class members, it was not unreasonable to impose a cap on
Track B awards.
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Second, the Track B cap is reasonable in light of the fact that the defendant will not oppose any claims made under the settlement agreement. ~.mm at 53-54. As a result, the risk of failing to prove a Track B claim is reduced. Given the reduced risk faced by Track B claimants under the settlement agreement, it is reasonable that the ultimate recovery pennitted should also be reduced.
Finally, the aggregate cap on Track B awards of$100 million is reasonable. The aggregate cap serves the purpose of preventing the disproportionate reduction of the limited fund by Track B claimants. Because Track B claimants will be given the opportunity to switch to Track A once they are notified of the total number of class members pursuing Track B claims, they will not be unfairly surprised if aggregate Track B awards exceed the $100 million cap and
have to be reduced on a pro rata basis. The limits on Track B awards thus reflect a careful and
reasonable balancing of the interests of all class members. Some individuals have objected that late-late file rs are subject to a greater
reduction of their awards than are late filers. See Bates Obj. "i/6; see ~ gmm at 33. But late filers and late-late filers are differently situated. The 2008 Fann Bill does not specify whether, to qualify for relief under the statute, a plaintiff must have submitted a timely 5(g) request. See supra at 11. The statute could be reasonably construed both to grant relief to late-late filers and to deny it. In light of that fact, both sets of plaintiffs would run the risk of an unfavorable detennination if the Court were forced to identify the correct interpretation of the statute. Instead of running that risk, the late filers and late-late filers among the Moving Plaintiffs, represented by separate and independent counsel, ~.s..!:!Il.@ at 31, reached a fair and reasonable compromise of their competing interests by agreeing that late-late filers would be pennitted to pursue relief
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under the settlement agreement, but would be forced to accept a greater reduction in their awards if the available fund proved too limited to pay all awards in full.
Finally, some have objected to the lack of injunctive relief afforded by the settlement. See. ~ Burrell Obj. at 25-26. The answer to this complaint is simple: Section 1401 2 does not authorize injunctive relief. The defendant cannot be expected to agree to any settlement that would involve the granting of a form of relief that could not be awarded if the case were to proceed in court.
The relief available under the settlement agreement is carefully calibrated in light of the limited funds available and the sometimes competing interests of different groups of class members. It is fair, reasonable, and adequate.
6. Attorneys' Fees The only major objection remaining to be addressed is perhaps the most frequently voiced: attorneys' fees are too large. See,~, Price Obj. at 3; Burrell Obj. at 27. As the Court has already explained, the settlement agreement provides that the Court will choose an appropriate aggregate award of attorneys' fees for class counsel that is between 4.1 and 7.4% of
$1,227,500,000, i.e., between $50,327,500 and $90,835,000. SA, 11.0. Because Congress has
appropriated a fixed sum of money for the payment of all expenses and awards associated with claims under Section 1401 2 of the 2008 Farm Bill, and because Section 14012, unlike ECOA, contains no fee-shifting provision, attorneys' fees must be drawn from the $1.25 billion appropriated by the 2008 Farm Bill and the Claims Resolution Act. Of necessity, this means that a larger award of attorneys' fees leads to a smaller available fund for the payment of awards. But
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to pennit only a minimal award of attorneys' fees, as some objectors have proposed, is not a realistic or desirable response to that problem.
In the absence of the services of class counsel, the members of the plaintiffs' class would not be in a position to divide up $ 1.25 billion (less implementation costs); they would be engaged in a chaotic struggle to win a portion of the $ 100 million appropriated by the 2008 Farm Bill before those funds ran out. As the Claims Resolution Act's specific references to the settlement agreement make clear, the execution of an agreement between class counsel and defendant's counsel was a necessary catalyst leading to the appropriation of a great deal of additional funding for this litigation. See Claims Resolution Act § 20I(a), (b). Just as importantly, the settlement agreement negotiated by class counsel makes the funding appropriated by Congress far more accessible to class members than it othefVolise would have been. As has already been explained, litigation of the claims of the plaintiffs in this or any court would have resulted in likely disastrous outcomes: the full compensation of some prevailing plaintiffs at the cost of depriving others of any recovery and/or a years-long delay in the resolution of claims. Class counsel's intensive efforts over nearly two years to arrive at a settlement have thus yielded enonnous benefits to the class already.
Without the services of class counsel, then, there would be no recovery for most class members. In such a situation, where class counsel's efforts have "create[d], preserve[d], or increase[d] the value of a fund" whose proceeds will be distributed to class members, "[i]t is ... well established that ... [counsel] is entitled to a reasonable attorney's fee from the fund as a whole." Swedish Hosp. Cow. v. Shalala, I F.3d 1261, 1265 (D,C. Cir. 1993). If the rule were
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otherwise, "the beneficiaries of the fund [would] be unjustly enriched by the attorney's efforts." Id.
In this circuit, courts typically detennine the appropriate amount of fees to be apportioned to attorneys in a "common fund" case such as this one by approving a specified percentage of the fund that will be eannarked for attorneys' fees. See Swedish Hosp. COW. v. Shalala, I F.3d at 1266, 1271.
Courts have looked to several factors in assessing the reasonableness of a fee request, including: (1) the size of the fund created and the number of persons benefitted; (2) the presence or absence of substantial objections by members of the class to the settlement tenns and/or fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the amount of time devoted to the case by plaintiffs' counsel; and (7) the awards in similar cases. In re Saan Co. Securities Litig., 288 F. Supp. 2d 14, 17 (D.D.C. 2003). To set a benchmark against which the reasonableness of class counsel's fee request may be measured, the Court will address first the last of those factors, awards in similar cases. In "a majority of common fund class action[sl," attorneys' fee "awards fall between twenty and thirty percent" of the fund. Swedish Hosp. COW. v. Shalala, 1 F.3d at 1272; see also In re Dep' t ofVeteraos Affairs (VA) Data Theft Litig., 653 F. Supp. 2d 58, 61 (D.D.C. 2009) ("The majority of fee awards nationally appear to fall in a range of20 percent to 30 percent of the common fund."); 4 RUBENSTEIN, CONTE & NEWBERG, NEWBERG ON CLASS ACTIONS § 14:6. Larger common funds are typically associated with smaller percentage awards, however, because even a small percentage ofa very large fund yields "a very large fee award." Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96,122 (2d Cir. 2005). Where the common fund is
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I worth many millions or even billions of dollars ~ in so-called "megafund" cases ~ an
I appropriate fee may be considerably less than twenty percent of the fund. See id.; In re AT&T
j Mobility Wireless Data Servs. Sales Tax Litig., No. 10-2278, 2011 WL 2173746, at '3-'4 (N.D. Ill. June 2, 20 II) (surveying studies of awards in megafund cases). Nevertheless, even in cases where. as here, the common fund is over one billion dollars, the range of percentages pennitted by the settlement agreement in this case ~ 4.1 to 7.4% ~ is unexceptional. According to one study, in cases involving common funds "from $500 million to $1 billion" in 2006 and 2007. "the mean and median awards were both 12.9%" of the fund. In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 2011 WL 2173746, at '4 (citing Brian T. Fitzpatrick, An Empirical Study ole/ass Action Settlements and Their Fee Awards, 7 J. EMPIRICAL LEGAL STUD. 811, 839 (2010)). In other cases, where the class recovery exceed $1 billion, courts have approved awards in the 5 to 10% range. See,~, Wal-Mart Stores. Inc. v. Visa U.S.A.. Inc. , 396 F.3d at 122 (approving district court's award of 6.5% of$3 billion fund); In re Ernon Com. Securities, Derivative & "ERISA" Litig., 586 F. Supp. 2d 732, 740, 828 (S.D. Tex. 2008) (approving award equal to 9.52% of $7.2 billion fund). The Court also notes that in Keepseagle v. Vilsack, another class action involving allegations of discrimination by the defendant USDA, Judge Emmet G. Sullivan approved a fee award equal to 8% ofa $760 million fund. See Keepseagle v. Vilsack, Civil Action No. 99-3119, Order on Plaintiffs' Motion for Final Approval of Settlement , 8 (D. D.C. Apr. 28,2011). In this context, an award in the range of 4.1 to 7.4% of the $1 .25 billion fund in this case would be a reasonable one, neither unusually high nor extremely low.
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The complexity of this action, the time already devoted by class counsel to this case, and the skill of the many attorneys working on behalf of the plaintiffs' class also justify the approval of a substantial fee award in this case. Although civil rights litigation is not typically considered as complex as, for example, sprawling commercial class actions, this case involves a wide range of complicating factors: an enormous, geographically dispersed plaintiffs' class that may number more than 60,000; a multitude of individual claims predicated at least in part upon unique facts and upon events that may have occurred as much as 30 years ago; an authorizing statute never interpreted by a court; a dizzying array of relevant statutory and regulatory provisions affecting the validity of claims as to both liability and damages; a large number of potential class members who are highly suspicious of both attorneys and the govenunent~ and intense scrutiny by Congress, the executive branch, and the press. The prospect of such litigation is daunting, and many attorneys would not have undertaken it.
Class counsel, however, have embraced the challenges associated with the litigation of this matter, and assert that they already have devoted more than "40,000 attorney hours and 60,000 paralegal hours to this case." Mot. for Fees at 30. The considerable labor already devoted by counsel to the litigation of this matter, and the skill brought to the cases by class counsel, are evident in the comprehensive settlement and case management plan that they have presented to the Court. In attempting to settle this case, class counsel confronted the task not only of securing a much larger amount of funding for distribution to successful plaintiffs, but also of developing and implementing an efficient, reliable, and cost-effective claim detennination process. As the Court's analysis throughout this Opinion should make clear, class counsel, along with counsel for the United States, have succeeded admirably at that task.
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The time and effort invested by class counsel will increase exponentially in the weeks and months to come. After the approval of the settlement agreement, class counsel will be responsible for overseeing the implementation of the claim detennination process and for guiding tens of thousands of claimants through that process. To fulfill those responsibilities, counsel will have to engage in extensive communication with class members, planning and holding "scores of meetings throughout the country" with potential claimants. Mot. for Fees at 29. They will offer legal representation during the claim detennination process,jor no additional jee, to any Track A claimant who requests it. SA, V.A.2. They will coordinate the efforts of the neutrals and respond to any problems that arise during the resolution of claims. And they will respond to any inquiries from the Ombudsman or the Court. All of these activities will require great skill and effort, as well as substantial time.
When they became involved in this litigation, class counsel also assumed a substantial risk that their efforts would never yield much in the way of fees. There has never been any guarantee that Congress would appropriate additional funding for the adjudication and payment of Section 14012 claims. Even after the settlement agreement was executed and legislation to fund it was introduced in Congress, the path to passage and approval of the funding required by the settlement was not easy. See supra at 14. If available funding had remained capped at $100 million, the more than forty attorneys now acting as class counsel would have been left to scramble for any fees that could be eked out of a fund vastly insufficient to pay all claims against it, and the payment of any fees that were forthcoming may have been delayed for years. This litigation was no sure bet for plaintiffs' lawyers.
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In light of the skill and dedication exhibited by class counsel, the enormous amount of time that they have devoted and will continue to devote to this case, the complexity of this litigation, the risks assumed by counsel, and the very substantial benefits secured by counsel for the class, the Court concludes that a fee within the range of 4.1 to 7.4% of the common fund is fair and reasonable. This conclusion is reinforced by the lack of substantial objections to the fee range set by the settlement agreement. Although numerous individuals have objected to the prospect ofa $90 million award of attorneys' fees, at the high end of the proposed range, none of those individuals has proposed a reasonable alternative measure of fees. Nor have they provided specific reasons that the proposed range is unfair or unreasonable, aside from the fact that the fee award will inevitably reduce the fund available for payments to the class - a necessary and unavoidable result. All of these considerations lead the Court to conclude that the proposed fee range should be approved.
The Court also approves the very modest contingency fees authorized for non-class counsel who, at a claimant's request, wiII represent class members in Track A, and for all attorneys who represent claimants in Track B. See SA ~ X.A. Set at 2% and 8% of the claimant's recovery, respectively. these fees are modest and reflect the necessary balance between compensating attorneys for the services they provide and preserving awards for class members to the extent feasible .
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v. CONCLUSION
Forty acres and a mule. That was the promise made by the government to those fonner slaves who wanted to farm land in the South after the Civil War. As detailed in this Court's opinion in Pigford I, for most AfricanRAmericans the promise of forty acres and a mule was never kept, and the United States Department of Agriculture and the county commissioners to whom it delegated so much power bear much of the responsibility for the broken promise to those African-American farmers and their descendants. Pigford v. Glickman, 185 F.R.D. at 85. In the early 1900's, there were 925,000 African-American farmers in the United States farming 16 million acres of farmland. By the time the Court approved the Pigford I consent decree, there were fewer than 18,000 African-American farms in the United States and African-American fanners owned less than three million acres of land. Id. As the Court said 12 years ago in approving the consent decree,"[n]othing can completely undo the discrimination of the past or restore lost land or lost opportunities" to the many AfricanMAmerican farmers who were part of the Pigford I class. Id. at 112. Historical discrimination cannot be undone, but the Pigford I consent decree was a significant first step, a step that had been a long time coming. And, as described earlier in this Opinion, supra at 9, nearly 16,000 AfricanMAmerican farmers received a total of more than $1 billion through the claims process created by the settlement of that historic case.
Today, because of a Congress that was willing to once again waive the statute of limitations and to appropriate $1.25 billion to help further redress the historic discrimination against African-American farmers, the Court is pleased to approve the settlement agreement proposed by the Moving Plaintiffs, and endorsed by the United States, as fair, reasonable, and
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adequate. It will also approve the appointment of the neutrals who will participate in the implementation of the agreement. This settlement is the product of extraordinary efforts by private litigants and their counsel, by the Congress, and by the Executive Branch. The Court joins all of those parties in hoping that it wiJ] bring class members the relief to which they are entitled.
An Order and Judgment consistent with this Opinion shall issue this same day. SO ORDERED.

DATE: / 0 / ~ 1011'

Vo-L ;;z'&J .... "'
PAUL L. FRIEDMAN United States District Judge

70

 </s> Case 1:08-mc-00511-PLF Document 234 Filed 11/11/11 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

This document relates to:

)

)

ALL CASES

)

)

Misc. No. 08-mc-0511 (PLF)

UNOPPOSED SECOND MOTION FOR APPROVAL OF CERTAIN INTERIM SETTLEMENT IMPLEMENTATION COSTS AND
DISBURSAL OF FUNDS FOR THE PAYMENT OF SUCH COSTS AND POINTS AND AUTHORITIES IN SUPPORT THEREOF
Pursuant to Section IV.E of the Settlement Agreement dated February 18, 2010 (Revised
and Executed as of May 13, 2011), Class Counsel respectfully move this Court to approve the
payment of additional interim Implementation Costs as provided for in the Settlement Agreement
and to approve the disbursal of Five Million Dollars ($5,000,000.00) from the Designated Account at Liberty Bank & Trust for such payments.1 The requested disbursal is necessary at
this time to pay interim Implementation Costs that have already been incurred and that are
expected to be incurred over the next few months for the following purposes:
(1) Payments to the Court-Approved Claims Administrator (Epiq Systems, Inc.):
This funding will be used to pay the Court-approved Claims Administrator for work that has
been performed since July 1, and that will be performed in the coming months, in staffing a toll-

1

Pursuant to Section IV.B of the Settlement Agreement, Class Counsel previously notified the

Secretary and the Court that they had selected Liberty Bank & Trust of New Orleans as the “Designated

Bank” for purposes of the deposit of Interim Implementation Costs under the Settlement Agreement. The

“Designated Account” at Liberty Bank & Trust is Account No. 2408503, which is held in the name

“Black Farmers Discrimination Litigation Settlement Implementation Costs DC IOLTA.”

Case 1:08-mc-00511-PLF Document 234 Filed 11/11/11 Page 2 of 5

free telephone number to provide information to and to assist potential Class Members in participating in the Settlement process, working with Class Counsel in the development of a revised Claim Form, establishing an infrastructure to efficiently and effectively process claims received, training personnel on proper claims handling, mailing claim forms to Class Members, reviewing claim forms that are received and transmitting completed claims form to the Courtapproved Neutrals, processing determinations received from the Neutrals, and discharging the array of other claims administrative tasks described in the Settlement Agreement. Class Counsel have received invoices from Epiq totaling $1,646,027.44 for the months of July-October, and of this amount, $1,303,693.66 remains to be paid. See Exhibit A.2 In addition, Epiq estimates that its costs will be between $1,250,000 and $1,750,000 for the period November 2011-January 2012 (although these costs, of course, will be driven largely by the number of claims received during that time period).
(2) Payments to the Court-Approved Neutrals (JAMS): This funding will be used to compensate the Court-approved Neutrals for their start up efforts prior to the Court’s October 27 Order and Judgment approving the Settlement (and approving JAMS as the Track A and Track B Neutrals) and the work JAMS will be performing in the next several months, including the training of the Neutrals and support personnel, the establishment of the infrastructure necessary to efficiently intake and process the claims received from the Claims Administrator, and the commencement of the claims determinations process. JAMS’s invoices to date total $80,597.67

2

Class Counsel recognize that these costs are substantially higher than were projected at the time

of Class Counsel’s first Motion for Approval of Certain Interim Settlement Implementation Costs. While

a number of factors have contributed to this increase in claims administration costs, the most significant

factors have been a sustained high level of telephone and written inquiries from potential claimants,

which already has generated more than 180,000 calls to the toll-free information line and more than

80,000 requests for claim packages.

2

Case 1:08-mc-00511-PLF Document 234 Filed 11/11/11 Page 3 of 5
(see Exhibit B), and they project that their costs for the period November 2011- January 2012 will be between $2,000,000 and $2,400,000 (although, as with the claims administration costs, these costs will be driven largely by the number of claims received during that time period).
(3) Payments for Additional Notice and Outreach Efforts: Although the payments already made to Kinsella Media include funds for certain additional notice activities during the Claims Period, Class Counsel believe that some additional outreach and notice activities may be necessary in view of the fact that to date less than 35% of the individuals whose names are on the “5(g) list” maintained by Epiq have requested claims forms. In this regard, Class Counsel are currently discussing with Kinsella, as well as with the Federation of Southern Cooperatives/Land Assistance Fund, certain additional notice and outreach activities that could be undertaken during the Claim Period. Subject to approving specific additional outreach and notice activities over the next three months, Class Counsel seek $200,000 for the funding of such activities.
Class Counsel requests the Court’s approval for the foregoing categories of costs for implementing the Settlement Agreement in an amount up to $5,000,0000, subject to Lead Class Counsel’s review and approval of the actual invoices received from the Claims Administrator, Neutrals, and notice providers.
Pursuant to Section IV.E of the Settlement Agreement, Class Counsel submits as Exhibit C bank statements from the Designated Account confirming the depletion of the $3 million in Interim Implementation Costs previously approved by this Court on June 15, 2011. See Docket No. 177.
Class Counsel have conferred with counsel for the Defendant and are authorized to state that the Defendant does not oppose the entry of the attached Order.
3

Case 1:08-mc-00511-PLF Document 234 Filed 11/11/11 Page 4 of 5

Respectfully submitted,

/s/ Henry Sanders, Esq. CHESTNUT, SANDERS, SANDERS, PETTAWAY & CAMPBELL, L.L.C. One Union Street Selma, AL 36701 Tel: (334) 875-9264 Fax: (334) 875-9853
/s/ Gregorio A. Francis, Esq. MORGAN & MORGAN, P.A. 20 North Orange Avenue, Suite 1600 Orlando, FL 32801 Tel: (407) 420-1414
Dated: November 11, 2011

/s/ Andrew H. Marks, Esq. D.C. Bar No. 932269 CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004 Tel: (202) 624-2920 Fax: (202) 628-5116

4

Case 1:08-mc-00511-PLF Document 234 Filed 11/11/11 Page 5 of 5
CERTIFICATE OF SERVICE
I certify that on November 11, 2011, I served this Motion on counsel of record by filing a copy via the ECF system.
/s/ Michael W. Lieberman

Case 1:08-mc-00511-PLF Document 234-1 Filed 11/11/11 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

)

)

This document relates to:

)

)

ALL CASES

)

)

Misc. No. 08-mc-0511 (PLF)

PROPOSED ORDER Upon consideration of the Unopposed Second Motion for Approval of Certain Interim Settlement Implementation Costs and Disbursal of Funds for the Payment of Such Costs, and the entire record herein, it is hereby

ORDERED that, subject to review and approval of actual invoices by Lead Class Counsel, the payment by Class Counsel of up to Five Million Dollars ($5,000,000.00) to Epiq System, Inc., JAMS, and notice providers for purposes of implementing the Settlement Agreement is hereby approved; and it is

FURTHER ORDERED that, pursuant to Section IV.F of the Settlement Agreement, the Defendant shall within twenty (20) days of the date of this Order provide the U.S. Department of the Treasury with all necessary forms and documentation to direct a payment in the amount of Five Million Dollars ($5,000,000.00) to Account No. 2408503 (“Designated Account”) in the name of Black Farmers Discrimination Litigation Settlement Implementation Costs DC IOLTA Account at Liberty Bank & Trust in New Orleans.

1

Case 1:08-mc-00511-PLF Document 234-1 Filed 11/11/11 Page 2 of 2

SO ORDERED. DATE:

__________________________________ PAUL L. FRIEDMAN United States District Judge

2

 </s> Case 1:08-mc-00511-PLF Document 366 Filed 06/21/13 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

_________________________________________ )

Misc. No. 08-0511 (PLF)

MEMORANDUM OPINION AND ORDER Plaintiffs have moved to modify the final Order and Judgment that was entered by the Court when it approved the Settlement Agreement negotiated by the parties to this case. See In re Black Farmers Discr. Litig., 820 F. Supp. 2d 78 (D.D.C. 2011). The plaintiffs request that the Order and Judgment be supplemented to adjust two aspects of the Settlement Agreement that govern the claims resolution process now being implemented by the court-appointed neutrals. This request stems from concerns that the claim forms submitted by two groups of claimants may have been unfairly deemed incomplete — and thus ineligible for adjudication on the merits — as a result of certain procedures adopted by the Claims Administrator. The government opposes the plaintiffs’ motion.1 The two groups of claimants whose claim forms are at issue can be described briefly as follows. One group submitted incomplete claim forms to the Claims Administrator and, pursuant to the Settlement Agreement, were sent letters in response informing them of this problem and giving them thirty days in which to supplement their forms with the missing information. Subsequently, however, the same claimants received correspondence from the Claims Administrator that was intended simply to confirm its initial receipt of their claim forms,

1

The papers filed in connection with this matter include the following: plaintiffs’

motion to further modify the Order and Judgment (“Mot.”) [Dkt. No. 360]; defendant’s

opposition (“Opp.”) [Dkt. No. 361]; plaintiffs’ reply (“Reply”) [Dkt. No. 362]; and defendant’s

surreply (“Surreply”) [Dkt. No. 365].

Case 1:08-mc-00511-PLF Document 366 Filed 06/21/13 Page 2 of 8

but which may have confused the claimants about the necessity of further action on their part. These letters, in the course of acknowledging receipt of a claim form, explained that the letter “does not require any action on your part” or that the Claims Administrator “will contact you if additional information is needed to evaluate your claim.” Mot. at 2-3. Because the claimants received letters advising them that no further action was needed, after having earlier been informed of deficiencies in their claim forms needing correction, their failure to cure those deficiencies may have resulted from understandable confusion about the Claims Administrator’s instructions. The plaintiffs therefore believe that an order is warranted allowing these potentially misled claimants an additional time period in which to resubmit their (completed) claim forms.2
The second group of claimants submitted claim forms that also were deemed incomplete by the Claims Administrator but that, further examination revealed, arguably should have been regarded as complete. These forms were designated incomplete because blanks were left in certain places where answers were required. Later review, however, prompted in part by questions raised by the Ombudsman, revealed that the claimants in this group had provided all of the necessary information — but not always in the correct places on the claim form. These claimants were sent notice of the perceived deficiencies in their forms but failed to correct them within thirty days. Because the procedures adopted by the Claims Administrator focused only on whether each individual question was answered in the corresponding space, and not on whether the claim form as a whole supplied all the necessary information, the plaintiffs request permission for these claim forms to be adjudicated on the merits. They argue that claimants who

2

To expedite the process in case the Court were to grant the requested relief, the

Claims Administrator already has contacted these claimants, informing them that the Court

might permit their claims to be adjudicated on the merits if the claimants were to submit

completed claim forms within the designated time period. A number of claimants did so. See

Mot. at 4 n.2.

2

Case 1:08-mc-00511-PLF Document 366 Filed 06/21/13 Page 3 of 8
did in fact provide all the required information should not be deemed ineligible simply because they included some of this information in the wrong places on the forms.
In all, 264 individuals whose claim forms have been deemed incomplete by the Claims Administrator would be permitted to have their claims adjudicated on the merits if the Court were to grant the relief being requested for both groups of claimants. See Mot. at 2 & n.1.
As plaintiffs acknowledge, to grant their motion would be to adjust the terms of the Settlement Agreement negotiated by the parties. Section V.B.2 of that agreement, which governs the thirty-day window in which claimants who submitted incomplete claim forms may cure the deficiency, states that “the failure of a Claimant to provide any requested materials within the specified time frames will result in that Claimant obtaining a final and unreviewable adverse determination.” Settlement Agreement (Revised and Executed as of May 13, 2011) § V.B.2 [Dkt. No. 170-2]. The same provision leaves no ambiguity about the absolute nature of these deadlines: “There shall be no exceptions to or extensions of the time frames set forth in this paragraph.” Id. Under Section V.A.8 of the Settlement Agreement, “[t]he Class Membership Determinations, Claim Determinations, and any other determinations made under this Section are final and are not reviewable by the Claims Administrator, the Track A Neutral, the Track B Neutral, the Court, or any other party or body, judicial or otherwise.” Id. § V.A.8 (emphasis added). Furthermore, by entering into the Settlement Agreement, the plaintiffs and their representatives agreed “to forever and finally waive any right to seek review of the Class Membership Determinations, the Claim Determinations, and any other determinations made under this Section.” Id. (emphasis added). Finally, the Settlement Agreement provides that it “may be modified only with the written agreement of the Parties and with the approval of the Court[.]” Id. § XVIII.B.
3

Case 1:08-mc-00511-PLF Document 366 Filed 06/21/13 Page 4 of 8
The plaintiffs concede that their request necessarily entails altering the Settlement Agreement. See Mot. at 3 (“To permit these claims to be considered now, after the 30-day period for completing such claims has expired, requires an amendment to Section V.B.2 of the Settlement Agreement.”); id. (“To permit these claims to be adjudicated on the merits now however, following their denial by the Claims Administrator as incomplete, will require an amendment to Section V.A.8 of the Settlement Agreement.”); Reply at 1-2 (noting that plaintiffs “seek . . . to have the Settlement Agreement modified” and referencing “the proposed modifications to the Settlement Agreement”). Consistent with this understanding, the proposed order submitted by the plaintiffs, amending the Court’s Order and Judgment, would permit the claim forms discussed above to be adjudicated on the merits “notwithstanding” the two contrary provisions in the Settlement Agreement. See Mot. at 6-8.
The Court previously has granted two similar motions filed by the plaintiffs in response to unforeseen logistical developments in the claims resolution process that threatened to unfairly prevent select groups of claimants from having their claims adjudicated. See Order (Sept. 14, 2012); Order (Feb. 14, 2013). Granting those motions arguably permitted variance from the strict terms of the Settlement Agreement. The plaintiffs aver that “the same considerations of fairness and equity” that supported the earlier two Orders justify granting the relief requested in their current motion. Mot. at 1.
Critically, however, the government did not oppose the two previous motions to modify the Order and Judgment. See Docket No. 302 at 1; Docket No. 341 at 3. At the time it acceded to the first motion, the government took no position on whether the relief being sought contradicted the Settlement Agreement, but it emphasized that the motion “d[id] not seek to amend the settlement agreement itself,” that “the Government has not agreed to any amendment
4

Case 1:08-mc-00511-PLF Document 366 Filed 06/21/13 Page 5 of 8
of the Revised Settlement Agreement,” and that “[i]f the Court were to somehow construe plaintiffs’ motion as seeking amendment of the settlement agreement . . . the Government would then oppose the motion.” Docket No. 302 at 1 n.1. The government adopted the same stance with respect to the plaintiffs’ second motion to modify the Order and Judgment. See Docket No. 341 at 3. By contrast, the government views the proposed modifications to the Order and Judgment that are presently on the table as inconsistent with the Settlement Agreement, and it opposes the modifications on that basis. See Opp. at 1-2; Surreply at 1-3.
The plaintiffs invoke Rule 60(b) of the Federal Rules of Civil Procedure as the source of authority for the relief they seek. That Rule allows courts to modify an order approving a settlement agreement or a consent decree, by providing that on “just terms,” a court “may relieve a party or its legal representative from a final judgment, order, or proceeding” if, among other things, “applying it prospectively is no longer equitable” or for “any other reason that justifies relief.” FED. R. CIV. P. 60(b)(5), (6); see Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378-79 (1992) (applying Rule 60(b) to modification of consent decrees); Pigford v. Veneman, 292 F.3d 918, 925-28 (D.C. Cir. 2002) (same). Apart from Rule 60(b), “district courts enjoy no free-ranging ‘ancillary’ jurisdiction to enforce consent decrees, but are instead constrained by the terms of the decree and related order.” Pigford v. Veneman, 292 F.3d at 924 (citing Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 381 (1994)). As our court of appeals has rhetorically asked: “Who would sign a consent decree if district courts had free-ranging interpretive or enforcement authority untethered from the decree’s negotiated terms?” Id. at 925. The same can be said about a carefully negotiated settlement agreement whose terms were approved in a final order and judgment.
5

Case 1:08-mc-00511-PLF Document 366 Filed 06/21/13 Page 6 of 8
Here, the government notes that “the terms of the Revised Settlement Agreement, including those that govern the finality of the non-judicial claims process it established, were bargained over by the parties,” and that the government “is entitled to the benefit of that bargain.” Surreply at 2. The finality of the claims resolution process, and the non-reviewability of all determinations made by the neutrals during that process, were important factors in the government’s settlement with the plaintiffs, as evidenced by the strict terms of the Settlement Agreement regarding those matters. The question is whether in the absence of the defendant’s consent and over its objection, Rule 60(b) permits the Court to direct the Claims Administrator to revisit its earlier determinations, because of either the confusion it created by its conflicting instructions to claimants or its failure to consider information provided by claimants in the wrong places on the claim forms.
Under Rule 60(b)(5), a party seeking modification of a consent decree bears the burden of demonstrating “a significant change either in factual conditions or in law” that warrants revision of the decree. Rufo v. Inmates of Suffolk County Jail, 502 U.S. at 383-84; see Pigford v. Johanns, 416 F.3d 12, 23 (D.C. Cir. 2005) (“A movant under Rule 60(b)(5) must demonstrate ‘changed circumstances’ since the entry of the judgment from which relief is sought.”). Modification may be warranted when changed factual conditions make compliance “substantially more onerous,” when an agreement “proves to be unworkable because of unforeseen obstacles,” or when enforcement of the agreement without modification “would be detrimental to the public interest.” Rufo v. Inmates of Suffolk County Jail, 502 U.S. at 384-85.
The plaintiffs here do not cite any changed factual conditions that make compliance with the Settlement Agreement more onerous. Nor do they allege any detriment to the public interest if the agreement remains unmodified. Cf. Rufo v. Inmates of Suffolk County
6

Case 1:08-mc-00511-PLF Document 366 Filed 06/21/13 Page 7 of 8
Jail, 502 U.S. at 384-85 (citing example in which modification based on public interest was allowed “to avoid pretrial release of accused violent felons”). Nor have the plaintiffs shown the emergence of any unforeseen obstacles making the Settlement Agreement unworkable.
To be sure, there is no indication that the parties specifically expected the Claims Administrator to assess the completeness of claim forms by reviewing each question in isolation rather than with reference to the claim form as a whole, or to send confirmation-of-receipt letters that potentially misled some claimants into believing that no further action was necessary on their part. But the parties clearly anticipated, and bargained for, the condition that the Claims Administrator would be responsible for designing and implementing procedures to determine whether claim forms were complete, as well as the condition that all decisions made by the Claims Administrator would be final and unreviewable. See Settlement Agreement §§ V.A.1, V.A.8, V.B.1, V.B.2. As the terms of the Settlement Agreement illustrate, it was anticipated by the parties that plaintiffs might object to certain determinations made by the Claims Administrator during the claims resolution process. The parties prepared for that contingency by agreeing that such determinations would be unreviewable. “Ordinarily . . . modification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree.” Pigford v. Johanns, 416 F.3d at 23 (quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. at 385). Such is the case here.
Where no significantly changed circumstances have been shown, disregarding the terms of the carefully negotiated Settlement Agreement in a manner that benefits the plaintiffs, over the defendant’s objections, would be inconsistent with Rule 60(b), with Rufo, and with the “contractual character” of the Settlement Agreement as approved by the related Order and Judgment. See Pigford v. Veneman, 292 F.3d at 924; see also Memorandum Order, Keepseagle
7

Case 1:08-mc-00511-PLF Document 366 Filed 06/21/13 Page 8 of 8

v. Vilsack, No. 99-3119, at 6-7 (D.D.C. Dec. 28, 2012) (denying Rule 60(b) motion to review determinations made by neutrals, including “determinations that incomplete or defective claims were not timely cured,” where such review was expressly prohibited by settlement agreement, despite certain plaintiffs having “allegedly not receiv[ed] correspondence from the Claims Administrator, confusion about the requirements for submission, [and alleged] errors by the Administrator or Class Counsel”). Because the plaintiffs are seeking to alter terms that were bargained for by the parties and inscribed in the Settlement Agreement, in the absence of significantly changed circumstances, their motion cannot be granted without the consent of the defendant.
Accordingly, it is hereby ORDERED that the Motion to Further Modify Final Order and Judgment [Dkt. No. 360] is DENIED. SO ORDERED.

DATE: June 21, 2013

/s/___________________________ PAUL L. FRIEDMAN United States District Judge

8

 </s> UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

In re BLACK FARMERS DISCRIMINATION )

LITIGATION

)

-------------)

Misc. No. 08-0511 (PLF)

OPINION This matter is before the Comt on class counsel's updated motion for an award of attorneys' fees and expenses. The Settlement Agreement that was approved by the Court following a Fairness Hearing provides that class counsel will receive an award equal to at least 4.1% but no more than 7.4% of the common fund that has been established for the payment of successful claims in this action. Class counsel, who have devoted an immense number of hours to this case while incurring many millions of dollars in mrreimbursed out-of-pocket expenses, have moved for an award set at 7.4% of the fund, or $90,835,000. Having carefully considered the matter, and for the reasons explained below, the Court will grant class counsel's motion for an award of attorneys' fees and expenses set at 7.4% of the common fund. Pursuant to the Settlement Agreement, class counsel will receive their fee award at the same time that successful claimants are paid on their claims. 1

The papers considered by the Court in connection with this matter include the following: Updated Motion by Class Counsel for Award of Attorneys' Fees and Expenses ("Mot.") [Dkt. No. 306]; Memorandum of Law in Support of Class Counsel's Updated Motion for Award of Attorneys' Fees and Expenses ("Mem.") [Dkt. No. 306-1]; Defendant's Response to Class Counsel's Updated Motion for an Award of Attorneys' Fees and Expenses ("Opp.") [Dkt. No. 321]; Reply Brief in Support of Class Counsel's Updated Motion for Award of Attorneys' Fees and Expenses ("Reply") [Dkt. No. 325]; and Supplemental Filing in Support of Class Counsel's Motion for an Award of Attorneys' Fees and Expenses ("Supp. Filing") [Dkt. No. 368].
The term "common fund," as used here with reference to the fund established in this case, refers specifically to the "Fee Base" as defined in the Settlement Agreement, which

I. BACKGROUND On Aprill4, 1999, this Court entered a Consent Decree in Pigford v. Glickman, Civil Action No. 97-1978, establishing a non-judicial claims resolution process for a class of African American fanners who alleged that they had been discriminated against on the basis of their race by the United States Department of Agriculture ("USDA") in the provision of farm loans and subsidies and other federal agricultural benefits, and who further alleged that complaints they lodged about this discrimination were ignored by the USDA. See Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999); see also In re Black Farmers Discr. Litig., 856 F. Supp. 2d I, 7-11 (D.D.C. 2011) (recounting history of the Pigford litigation). The Pigford Consent Decree represented an important step toward ameliorating a long legacy of discrimination acknowledged by the USDA itself. But tens of thousands of prospective claimants were not permitted to participate in the claims resolution process that was set in motion by the Consent Decree because their claim forms were not timely filed. Under the terms of the Consent Decree, any claim form that was not postmarked within 180 days of the entry of the Consent Decree could not be considered on the merits unless the claimant petitioned for permission to file a late claim and demonstrated that "his failure to submit a timely claim was due to extraordinary circumstances beyond his control." Pigford v. Glickman, Civil Action No.
,I 97-1978, Consent Decree 5(g) (D.D.C. Apr. 14, 1999). More than 61,000 individuals
petitioned to submit untimely claim packages. Ultimately, only 4% of these "late filers" were deemed to have shown "extraordinary circumstances" beyond the individual's control and had their claims considered on the merits. The remaining "late filers"- over 58,000 in all- were
comprises the $1.25 billion appropriated by Congress for this litigation minus $22.5 million in implementation costs. See Settlement Agreement (Revised and Executed as of May 13, 2011) § II.O [Dkt. No. 170-2].
2

unable to pursue relief under the Pigford Consent Decree. See In re Black Farmers Discr. Litig., 856 F. Supp. 2d at II. Moreover, thousands of additional would-be claimants (the so-called "late-late filers") submitted petitions to file untimely claims after the deadline for such petitions, and they, too, were denied the opportunity to have their claims adjudicated under the Pigford Consent Decree. Id.
In 2008, after years oflobbying and publicity efforts by advocates for late-filing Pigford claimants, Congress enacted Section 14012 of the Food, Conservation, and Energy Act of 2008 (the "Farm Bill"), which provided that"[a]ny Pigford claimant who has not previously obtained a determination on the merits of a Pigford claim may, in a civil action brought in the United States District Coutt for the District of Columbia, obtain that determination." PUB. L. No. 110-246, § 14012(b), 122 Stat. 1651 (2008). Section 14012 authorized forms of adjudication that were "similar, but not identical," to the two-track adjudication system established under the Pigford Consent Decree. In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 12. Among the most notew01thy differences, Section 14012 made no provision for a nonjudicial claims resolution process but instead directed that "the court shall decide the case" of each individual claimant. Farm Bill§ 14012(f)(l)(B).2 In addition, the Farm Bill appropriated only $100 million for the payment of successful claims, id. § 14012(c)(2) -far too little to satisfy the number of successful claims that could reasonably be anticipated, although the statute contemplated the possibility of future additional appropriations. See id. § 140 12(i)(2), G).
After the enactment of the 2008 Farm Bill, numerous complaints were filed in this Court under Section 14012 on behalf of thousands of plaintiffs. All of the Section 14012 actions

2

Cettain paragraphs in Section 14012 of the Farm Bill were renumbered by

subsequent legislation. Citations in this Opinion refer to the original numbering used in the 2008

statute.

3

were consolidated in August of 2008 into this miscellaneous case. The case was then stayed to enable settlement negotiations to proceed, except for the limited purpose of allowing the parties to brief the question of whether the case should be certified as a class action. See Order (Aug. 8, 2008); Minute Order (Oct. I, 2008); Order (Dec. 23, 2008). While briefing on class ce1tification was underway, the parties continued their settlement discussions. In February 2010, they reached a settlement agreement that delineated a comprehensive, non-judicial claims resolution process for plaintiffs seeking recovery under Section 14012 of the Farm Bill. See Defendant's Unopposed Motion to Withdraw His Motion to Certify a Rule 23(b)(1) Class, ,[3 [Dkt. No. 137].
In late 2010, Congress appropriated an additional $1.15 billion to carry out the terms of the Settlement Agreement, but conditioned this appropriation of additional funds on the Court's approval of that agreement, including any modifications agreed to by the parties and accepted by the Court. In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 13, 39. This conditional commitment is found in Section 201 of the Claims Resolution Act ("CRA"). See PUB. L. No. 111-291, § 201(b), 124 Stat. 3064 (2010). To promote the integrity of the claims process it endorsed in the CRA, Congress imposed additional requirements on the attorneys and the prospective appointed neutrals as they carried out the terms of the Settlement Agreement; it also mandated certain government audits and oversight reports. Id. §§ 201(g), (h).
Although the funding provided by the Claims Resolution Act was substantial adding up to $1.25 billion when combined with the funds appropriated by the Farm Bill- the existence of an upper limit on the total funds available for the payment of successful claimants created a situation markedly different from that in Pigford. While the Pigford Consent Decree capped the individual amounts that could be awarded for certain types of successful claims, there was no limit on the total available funds, and thus no prospect that awards would have to be
4

divided among successful claimants from a limited common fund. And like the Farm Bill, the Claims Resolution Act included no fee-shifting provision, meaning that any payment of attorneys' fees and expenses would inevitably have to be drawn from the same (limited) common fund.
The Court granted preliminary approval of the Settlement Agreement and certified a Rule 23(b)(I )(B) settlement class in May 2011. See Order (May 13, 2011 ); Order (May 20, 2011 ). A Fairness Hearing on final approval of the Settlement Agreement was scheduled, and class counsel undertook the execution of a multifaceted notice program designed to apprise potential class members of the proposal to certify a class and approve the Settlement Agreement. The notice program involved direct mailings to tens of thousands of known potential class members, along with radio, television, print, and online publicity. Written notices about the proposed settlement informed the class that counsel would be seeking an award of attorneys' fees equaling as much as 7.4% of the settlement fund, the date of the Fairness Hearing, and the fact that class members could file written objections to the Settlement Agreement and potential fee award as well as speak at the Fairness Hearing individually or through counsel. See Plaintiffs' Motion for Final Approval of Settlement, Ex. A [Dkt. No. 187-3] (detailing notice program); id. at 19 (example of direct notice mailed to known potential class members). Class counsel also filed a motion for an award of attorneys' fees, seeking an award set at 7.4% of the common fund- the maximum amount permitted under the Settlement Agreement. See Class Counsel's Motion for an Award of Attorneys' Fees and Expenses [Dkt. No. 180].
The Fairness Hearing was held on September 1, 2011, and the Court entered an Order and Judgment on October 27,2011, certifying a settlement class, approving the terms of
5

the settlement, and dismissing the case, while retaining jurisdiction to enforce the Settlement Agreement and resolve ancillary matters. See In re Black Farmers Discr. Litig., 856 F. Supp. 2d I (D.D.C. 2011) (Opinion); In re Black Farmers Discr. Litig., 820 F. Supp. 2d 78 (D.D.C. 2011) (Order and Judgment).
In its Opinion approving the Settlement Agreement, the Court indicated that it would approve an award of attorneys' fees to class counsel only after the completion of the claims resolution process. In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 25. The lump sum payment is to be divided among class counsel pursuant to the terms of the Settlement Agreement and the separate, negotiated Counsel Participation Agreement. !d. The Court also appointed an Ombudsman and Deputy Ombudsman to, among other things, serve as the Court's eyes and ears during the claims process and offer an independent perspective on the implementation of that process. They have communicated extensively with claimants, attorneys, farmer advocacy organizations, the Court-appointed neutrals, class counsel, and the Court during the claims process. See,~. Ombudsman Report Regarding the Implementation of the Settlement Agreement through September 30,2012 ("Ombudsman Report") [Dkt. No. 319]. The Ombudsman and Deputy Ombudsman have performed admirably and have helped to ensure that the process has run both efficiently and fairly.
In September 2012, class counsel submitted an updated motion for an award of attorneys' fees and expenses. The updated motion- still seeking an award set at 7.4% of the common fund -omits an expert declaration included with the original motion that the government had moved to strike, and it also reflects class counsel's efforts on behalf of the class since the approval of the Settlement Agreement and during the claims process.
6

The government, recognizing that class counsel's fees will be drawn from the public fisc, in the form of the funds appropriated by Congress for this case, and that the government shares an obligation "to ensure that the funds that Congress appropriated ... are responsibly disbursed to those for whom Congress and the United States Department of Agriculture intended the money," has opposed class counsel's motion in part, arguing that counsel's work in this case merits compensation at a rate of 4.1% of the common fund, at the bottom ofthe permissible range set forth in the Settlement Agreement. Opp. at 2.
II. LEGAL STANDARD "In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement." FED. R. CIV. P. 23(h). "Courts have a duty to ensure that claims for attorneys' fees are reasonable," Trombley v. Nat' I City Bank, 826 F. Supp. 2d 179, 204 (D.D.C. 2011), "in light of the results obtained." In re Dep't of Veterans Affairs (VA) Data Theft Litig., 653 F. Supp. 2d 58, 60 (D.D.C. 2009) (citing Hensley v. Eckerhart, 461 U.S. 424,440 (1983)). While the commonly used "lodestar" method represents one way of calculating reasonable attorneys' fees, this circuit has indicated that in cases involving a common fund that has been established for the benefit of the plaintiffs, the "percentage of the fund" method "is the appropriate mechanism for determining the attorney fees award." !d. (quoting Swedish Hosp. Corp. v. Shalala, I F.3d 1261, 1271 (D.C. Cir. 1993)). "The common fund doctrine allows an attorney whose efforts created, increased or preserved a fund to recover from the fund the costs of his litigation, including attorneys' fees." In re Baan Co. Sec. Litig., 288 F. Supp. 2d 14, 16 (D.D.C. 2003) (quotations omitted). This percentage-of-the-fund approach "helps to align more closely the interests of the attorneys with the interests ofthe parties," Democratic Cent. Comm. ofDist. of Columbia v. Washington
7

Metro. Area Transit Comm'n, 3 F.3d 1568, 1573 (D.C. Cir. 1993), by discouraging inflation of attorney hours and promoting "efficient prosecution and early resolution of litigation, which clearly benefits both litigants and the judicial system." Trombley v. Nat'! City Bank, 826 F. Supp. 2d at 205 (quoting In re Lorazepam & Clorazepate Antitrust Litig., 205 F.R.D. 369, 383 (D.D.C. 2002)); see Swedish Hosp. Corp. v. Shalala, I F.3d at 1268-69.
"Once it is determined that the attorneys are entitled to be paid from the common fund, it is the duty of the court to determine the appropriate amount," based on "reasonableness under the circumstances of a particular case." Democratic Cent. Comm. ofDist. of Columbia v. Washington Metro. Area Transit Comm'n, 3 F.3d at 1573. The Court's independent scrutiny of an award's reasonableness is particularly important in common fund cases, because "the conflict between a class and its attorneys may be most stark where a common fund is created and the fee award comes out of, and thus directly reduces, the class recovery." Id. (quotation omitted); see Swedish Hosp. Corp. v. Shalala, I F.3d at 1265. "(W)here the settlement agreement creates a common fund against which individual plaintiffs may make claims," the Court must "'act as fiduciary for the beneficiaries"' of the fund '"because few, if any, of the action's beneficiaries actually are before the court at the time the fees are set"' and because '"there is no adversary process that can be relied upon in the setting of a reasonable fee."' In re Dep't of Veterans Affairs (VA) Data Theft Litig., 653 F. Supp. 2d at 60 (quoting COURT AWARDED ATTORNEY FEES: REPORT OF THE THIRD CIRCUIT TASK FORCE, 108 F.R.D. 237, 251 (1985)).
"While this Circuit has not yet developed a formal list of factors to be considered in evaluating fee requests under the percentage-of-recovery method, other jurisdictions have delineated factors that courts should consider in evaluating fee requests." In re Lorazeoam &
8

Clorazepate Antitrust Litig., Misc. No. 99-276,2003 WL 22037741, at *8 (D.D.C. June 16, 2003). Courts typically consider seven factors to guide their inquiries:
(I) the size of the fund created and the number of persons benefitted, (2) the presence or absence of substantial objections by class members to the settlement terms or fees requested by counsel, (3) the skill and efficiency of the attorneys involved, (4) the complexity and duration of litigation, (5) the risk of nonpayment, (6) the time devoted to the case by plaintiffs' counsel, and (7) awards in similar cases. Trombley v. Nat'! City Bank, 826 F. Supp. 2d at 204; see also Wells v. Allstate Ins. Co., 557 F. Supp. 2d I, 6 (D.D.C. 2008); In re Baan Co. Sec. Litig., 288 F. Supp. 2d at 17.
III. DISCUSSION
With respect to the seven factors cited above, the government does not question
the skill and efficiency of class counsel or the fact that class counsel faced the risk of nonpayment when they agreed to represent class members in this litigation. See Opp. at 4. It does argue, however, that class counsel is not entitled to a 7.4% fee award in light of the amount of time they devoted to this case and because this litigation was neither long in duration nor particularly complex. !d. at 4-8. The government also maintains that the fee awards in similar common fund cases do not provide an apt comparison on which the Court can base a 7.4% fee award. !d. at 8-10. Finally, the government notes that because there are likely to be insufficient funds to pay the awards of all potentially successful claimants, "every dollar that is awarded to Class Counsel in fees is one less dollar that is available to pay successful class members." !d. at 1; see also id. at 7-8. 3 For these reasons, the government urges the Court to exercise its discretion to limit the award to class counsel to 4.1% of the common fund. See id. at 11-12.

3

This final argument advanced by the government has since lost all force: the

status report filed by class counsel on July 8, 2013 demonstrates that even after the payment of

9

In approving the Settlement Agreement, the Court explained why consideration of the seven factors may justify, as fair and reasonable, an award of attorneys' fees and expenses equaling as much as 7.4% ofthe common fund. In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 38-41. Many of the observations made then support the Court's conclusion today regarding the specific percentage of the fund at which, in its discretion, the Court has concluded the award should be set. In addition, the Court now is in a position to assess, in view of the government's arguments, the effectiveness of class counsel's performance over the course of more than twenty months since the settlement was approved, including counsel's implementation of the claims process and the other tasks associated with the performance of their responsibilities under the Settlement Agreement.
A. Percentage-ofthe-Fund Analysis I. The Size of the Fund and the Number of Persons Benefitted As the Court already has observed: "In the absence of the services of class counsel, the members of the plaintiffs' class would not be in a position to divide up $1.25 billion (less implementation costs); they would be engaged in a chaotic struggle to win a portion of the $100 million appropriated by the 2008 Farm Bill before those funds ran out." In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 38-39. Class counsel do not attempt to take all the credit for the appropriation by Congress of an additional $1.15 billion to fund successful claims in this action, as that credit must be shared with other groups and individuals who advocated before Congress and the public about the cause of Pigford late-filers and the critical need for
attorneys' fees in the full amount requested and of all implementation costs, there will be sufficient settlement funds to pay all prevailing class members the full amount of the award authorized by the Settlement Agreement and the Farm Bill. See Status Report Regarding Projected Timeline for Completion of Claims Process ("Status Report") [Dkt. No. 367]; infra at 29-30.
10

additional funding. 4 Yet "[a]s the Claims Resolution Act's specific references to the settlement agreement make clear, the execution of an agreement between class counsel and defendant's counsel was a necessary catalyst leading to the appropriation of a great deal of additional funding for this litigation." In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 39 (citing CRA §§ 201(a), (b)). By reaching a comprehensive settlement with the government that encouraged confidence within the legislative and executive branches about the wisdom of supplying additional funding, class counsel's efforts undoubtedly "increased" and "preserved" the common fund benefitting the plaintiffs in this action. In re Baan Co. Sec. Litig., 288 F. Supp. 2d at 16. As the Court has recognized, "[w]ithout the services of class counsel, there would be no recovery for most class members." In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 39.
Beyond helping to secure additional funding through the Claims Resolution Act, class counsel's success in negotiating the Settlement Agreement has increased the number of persons benefitted by this case in other ways. The Settlement Agreement enables plaintiffs to pursue their claims in an expedited, non-judicial forum- a development that, as a matter of practical reality, is essential to making the adjudication of claims and the payment of successful plaintiffs attainable. By contrast, if each of the tens of thousands of individual plaintiffs were required to present his or her case directly to the Court for a decision, as the Farm Bill originally specified, see§ 14012(f)(I)(B), given the unprecedented amount ofjudicial resources that would have been required, recovery for most class members would have been postponed into the far

4

See Mem. at 3 n.6 (noting that "the National Black Farmers Association

(spearheaded by John Boyd), the Federation of Southern Cooperatives, and other farm advocacy

groups played key roles in advocating for ... passage of the 2010 Claims Resolution Act"); id. at

23 (stating that it was as a result of"the intense and sustained efforts of Class Counsel in this

action over the duration of the case and of Class Counsel's effective advocacy that, together with

the efforts ofothers, led to the $1.15 billion in additional funding for this Settlement provided by

the Claims Resolution Act") (emphasis added).

II

distant future- even assuming that sufficient funds were available to pay all successful claims. For a class that includes many elderly individuals seeking redress for acts of discrimination that in some instances stretch back to the 1980s, the establishment of a streamlined claims resolution process is an achievement that confers significant benefit on the plaintiffs. In addition, their prospects for success were enhanced by class counsel's negotiated elimination of the imposing evidentiary requirement that a claimant identify two specific and "similarly situated white farmers" who obtained more favorable results from the USDA, In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 9 (quoting Consent Decree, 9(a)(i)(C))- a legacy of the Pigford claims resolution process that was replicated in the Farm Bill.
The Settlement Agreement negotiated by class counsel also has benefitted plaintiffs by imposing a categorical prohibition on the acceleration or foreclosure of any USDA loans that form the basis of a plaintiffs claim, during the pendency of that claim. Settlement Agreement § VILA. In contrast, the Farm Bill required plaintiffs seeking such deferral to make "a prima facie case in an appropriate administrative proceeding that the acceleration or foreclosure is related to a Pigford claim." Farm Bill§ 14012(h)(2).
All told, class counsel's adept negotiation of the Settlement Agreement dramatically benefitted the class by ensuring that a greater number of plaintiffs likely will prevail on their claims than otherwise, that these claims will be resolved and payments issued in a timely manner, and that adequate funding will exist to provide meaningtul compensation to each successful plaintiff.
By the same token, Congress' appropriation of the additional $1.15 billion that forms the bulk of the common fund was a legislative decision, informed in part by policy considerations independent of class counsel's efforts. Moreover, the precise amount
12

appropriated by Congress bears no direct relationship to those efforts, instead seemingly
reflecting a choice to fix a sum that approximates the total funds paid out by the government in
the Pigford case. Therefore, although the negotiation of the Settlement Agreement by class
counsel clearly was a "necessary catalyst" without which additional funding for this action may
well not have materialized, In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 39, the
relationship between the amount of the common fund and counsel's efforts may be more
attenuated than in some common fund cases, and the credit for the expansion of the fund does not rest entirely with class counsel. 5
2. The Presence or Absence of Substantial Objections by Class Members to the Settlement Terms or Fees Requested by Counsel
Objections by class members to the award of attorneys' fees sought by class
counsel have been few in number. Indeed, the Court emphasized "the lack of substantial
objections to the fee range set by the settlement agreement" in concluding at the settlement stage
that a fee award between 4.1% and 7.4% of the common fund was fair and reasonable. The
Court further observed that even the few objections that were voiced generally lacked substance:
Although numerous individuals have objected to the prospect of a $90 million award of attorneys' fees, at the high end of the proposed range, none of those individuals has proposed a reasonable alternative measure of fees. Nor have they provided specific reasons that the proposed range is unfair or unreasonable, aside from the fact that the fee award will inevitably reduce the fund available for payments to the class - a necessary and unavoidable result.

5

In addition, the government apparently was as desirous as the plaintiffs of

securing an expedited, non-judicial claims resolution process requiring minimal participation by

government lawyers, and with avoiding the administrative burdens on the USDA contemplated

by the 2008 Farm Bill, which required the agency to supply each claimant with certain loan data

from the claimant's county- a requirement clearly aimed at helping claimants satisfy the

"similarly situated white farmer" requirement for successful claims. See Farm Bill§ 14012(e).

13

In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 41; but see supra note 3; infra at 29-30. Out of a class comprising tens of thousands of plaintiffs- each holding a
potential stake of $50,000 or more in this litigation (that being the minimum payment to which successful Pigford plaintiffs were entitled)- only 25 individuals filed objections to the proposed Settlement Agreement (including its range of 4.1% to 7.4% in attorneys' fees) or to class counsel's request for a 7.4% fee award. And among this relatively small group, many of the ostensible objections actually expressed no real disagreement with the terms of the Settlement Agreement (including the attorneys' fees provision), while others were submitted by individuals who were not class members and therefore had no right to object to either the Settlement Agreement or class counsel's motion for a fee award. See FED. R. CJV. P. 23(e)(5) (providing that only a "class member" may object to a proposed class action settlement); FED. R. CIV. P. 23(h)(2) (providing that only a "class member, or a party from whom payment is sought" may object to a motion for attorneys' fees by class counsel). As noted, some individuals who spoke at the Fairness Hearing expressed the view that the attorneys' fees sought by class counsel were excessive, but none of those who balked at the 7.4% rate presented a tangible basis for the objection, aside from the sheer size of the award and the assumption, now proven unfounded, that it would reduce plaintiffs' recovery.
3. The Skill and Efficiency of the Attorneys Involved There is little question about the skill and efficiency demonstrated by class counsel in this action. Indeed, even as they challenge other aspects of the fee motion, the exemplary team of lawyers from the Department of Justice and the USDA involved in this case for the government state that there is not "any dispute regarding Class Counsel's skill." Opp. at 4.
14

The prosecution of this case entailed a diverse anay of challenges. Surmounting these difficulties called for a host of skills by class counsel, including the ability to craft a complex settlement agreement delineating a process for the expedited resolution of plaintiffs' claims, to successfully negotiate with the government concerning the terms of this agreement and later secure the Court's approval, to orchestrate a vast claims resolution process that maximized counsel's assistance to an enormous class of plaintiffs spread across the country, to supervise the eff01is of a large team of lawyers providing assistance to these plaintiffs and ensure that they be sufficiently versed in the governmental credit programs underlying the plaintiffs' claims to provide useful assistance in completing and submitting claim forms, and to resolve bedeviling logistical glitches that arose with respect to particular groups of plaintiffs during the claims process.
Successfully coordinating the efforts of over twenty law firms, class counsel have demonstrated the sophistication necessary to effectively brief complex class certification issues before this Court and to defend the Settlement Agreement on appeal before the D. C. Circuit, the skill to negotiate with the government's experienced legal team and obtain advantageous terms for the plaintiffs, and the logistical wherewithal to help implement the massive claims processa task that demanded making myriad strategic adjustments as the process unfolded in response to a host of pragmatic difficulties.
"The sign-up period of the settlement, in which tens of thousands of class members needed to submit complete claim packages, required significant expertise and commitment." Ombudsman Rep01i at 31. While there were indications that some meetings held by class counsel to assist claimants may have been insufficiently staffed at the very beginning of the claims process, and that some claimants had to travel significant distances to attend meetings,
15

class counsel promptly responded to these concerns by adding meetings in areas of the country where there had been significant turnouts. The problem of staffing and organization at meetings appears to have been resolved quickly. Id. at 26; see Reply, Ex. C ~~ 4-7 (describing the challenge of organizing meetings and improvements made by class counsel during the process). Furthermore, while some individuals reported that it was difficult to arrange to talk directly with class counsel by telephone, perhaps as a result of the call-back system that class counsel utilized, ultimately people "who continued to try to speak with Class Counsel ... were able to do so." Ombudsman Report at 26. In sum: "Although there were some logistical difficulties in the process, a reasonably diligent person had ample opportunity to receive assistance from Class Counsel in filing a claim." Id. at 30.
With respect to the overall design and implementation of the claims resolution process, class counsel rightly contend that "the absence of any significant administrative difficulties or delays in the claims process attests to the detailed and skillful work performed by Class Counsel throughout all phases of this case." Reply at 8. While some limited delay was caused by class counsel's failure to anticipate certain logistical problems in the processing of claims- requiring class counsel to submit a motion to provide particular classes of claimants more time to return their claims packages, see Motion to Modify Final Order and Judgment [Dkt. No. 300] -the delay was not unreasonable given the number of potential claimants and the logistical challenges presented, and class counsel worked hard to correct the problems they identified as promptly as possible. In view of the complexity and intricacy of the situation with which they were faced, there is no doubt that class counsel's skill and efficiency resulted in a claims resolution process that, now proceeding apace, is on track to provide full remedial awards to successful claimants that have eluded these African American farmers for so many years.
16

4. The Complexity and Duration of the Litigation
This action posed unique challenges for class counsel, many of which the Court
already has acknowledged:
Although civil rights litigation is not typically considered as complex as, for example, sprawling commercial class actions, this case involves a wide range of complicating factors: an enormous, geographically dispersed plaintiffs' class that may number more than 60,000; a multitude of individual claims predicated at least in part upon unique facts and upon events that may have occurred as much as 30 years ago; an authorizing statute never interpreted by a court; a dizzying array of relevant statutory and regulatory provisions affecting the validity of claims as to both liability and damages; a large number of potential class members who are highly suspicious of both attorneys and the government; and intense scrutiny by Congress, the executive branch, and the press. The prospect of such litigation is daunting, and many attorneys would not have undertaken it.
In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 40. On the other hand, as the government
points out, the case involved no discovery or dispositive motions, no pretrial preparation, and no
trial. The proceedings were stayed for the purpose of settlement negotiations almost
immediately after the first complaints were filed. In less than two years a settlement agreement
was reached that, like the claims resolution process it established, was modeled in large part on
the Consent Decree in Pigford v. Glickman. Briefing oflegal issnes was largely confined to the
matters surrounding class certification and approval of the Settlement Agreement. And none of
the parties who appealed the Settlement Agreement to the D.C. Circuit had standing to do so,
enabling class counsel to obtain dismissal of the appeals in a short~ curiam order.
Emphasizing these points, the government maintains that this case "was not
particularly complex" and that "it did not require the parties to engage in original research, nor
did it require them to reinvent the wheel to devise the non-judicial claims process by which all
17

the class members' claims will be resolved." Opp. at 1-2. The government also portrays the parties' negotiation of the settlement agreement as characterized by "intermittent settlement discussions," during which "there was virtually no actual litigation." Opp. at 4. These considerations arguably may warrant some reduction of class counsel's fee in comparison with awards granted in more complex cases involving common funds of a comparable size. But in light of the genuine challenges faced by class counsel in this action, they surely would not justify lowering the award to 4.1% of the common fund or anywhere near the low end of the agreedupon range.
It is true that the prosecution of this action lacked many of the typical hallmarks of complex litigation, and that the work of crafting the settlement agreement was greatly facilitated by the template established in the Pigford case. See Swedish Hosp. Com. v. Shalala, I F.3d at 1272 (where counsel's efforts ride "piggyback" on those from an earlier case, courts are within their discretion to reduce the fee award accordingly). But a side-by-side comparison of the Settlement Agreement with the Pigford Consent Decree belies the claim that little original work was required here on behalf of the plaintiffs. "Although the duration of litigation was relatively sho1t," and "there were no dispositive motions filed," "the issues to be resolved in this case were complex." Trombley v. Nat' I City Bank, 826 F. Supp. 2d at 205; see Radosti v. Envision EM!, LLC, 760 F. Supp. 2d 73, 78 (D.D.C. 2011) ("While there was no lengthy litigation, counsel should not be penalized tor achieving an effective and efficient settlement." (quoting In re Vitamins Antitrust Litig., Misc. No. 99-197,2001 WL 34312839, at *II (D.D.C. July 16, 2001))).
Among many other novel challenges they faced, class counsel had to devise a fair and efficacious manner of resolving a potentially very large number of claims with funds drawn
18

from a limited pool. At least twenty drafts of the Settlement Agreement were exchanged between the parties in an effort to achieve this shared goal.
While the government depicts this negotiation process as merely "fine-tuning the agreement in principle reached early on in the litigation," Opp. at 5, in a case of such magnitude and complexity it is precisely this process of "fine-tuning" that leads to the creation of an effective non-judicial claims forum rather than one that might become bogged down in unforeseen hitches or unintended omissions, resulting in adverse consequences for claimants. Indeed, this attention to precision and detail may ultimately spell the difference between success or failure for thousands of claimants. Furthermore, even after reaching an accord with the government on a proposed settlement, class counsel were required to further revise this agreement in response to concerns expressed by the Court, see Dkt. Nos. 168, 170, 171, and requirements imposed by Congress under the Claims Resolution Act.
An exclusive focus on the lack of discovery, merits briefing, and trial gives short shrift to the unenviable logistical challenges that confronted class counsel in designing and implementing the claims resolution process in this case- "a complicated and formidable undertaking" that "called for the evaluation and sign-up of tens of thousands of claimants." Ombudsman Report at 1. Given the intricate requirements for class membership and the often dated information available about the individuals who unsuccessfully sought to participate in Pidord, even the initial process of properly identifying and communicating with class members was no easy task. Class counsel, working together with the Claims Administrator, "devoted considerable effort, expertise, and resources to the task of distributing Claim Forms to potential claimants," and as a result of their efforts over 96,000 claim forms were sent to potential class members. !d. at 18-19.
19

This was only the tip of the iceberg for class counsel, who committed to providing assistance to all class members in the completion and submission of their claim forms. Carrying out this task entailed developing a systematic program of meetings held across the country, a program that strategically located and scheduled meetings to maximize counsel's efforts and reach the largest possible number of claimants. Class counsel report that during the claims period they held 384 group meetings in 66 cities and 23 states and in Washington, D.C., which allowed counsel to assist nearly 22,000 potential claimants in person. Ombudsman Report at 26. These group meetings were staffed by multiple attorneys and paralegals to assure that putative class members had access to in-person assistance from legal professionals. And the in-person meetings were supplemented by a system of toll-free telephone assistance, through which class counsel spoke with over 3,600 claimants. !d. at 25.
Providing these services demanded that the meetings be designed with sufficient care to run smoothly and ensure that all potential claimants received attention. It also required that the attorneys assisting these thousands of claimants be sufficiently knowledgeable about the underlying USDA farm loan programs to offer effective assistance. Making such assistance available to this large and disparate class was indeed an arduous undertaking. See generally Reply, Ex. B (Declaration of Stephen M. Coe); id., Ex. C (Declaration of Eric J. Sanchez) (recounting diverse challenges of designing and implementing strategy for claimant assistance meetings).
In addition, as class counsel have accurately explained on their own behalf, they have devoted thousands of hours over the past year and a half to, among other things, "working with the Claims Administrator to refine the claims process and to address difficult issues as they arose," "interfacing with the Track A and B Neutrals to ensure that the claims adjudication
20

process was proceeding smoothly," "working with the Ombudsman and Deputy Ombudsman to address issues and to implement suggestions raised by them," "cooperating with the General Accounting Office and the Office of the Inspector General of the U.S. Department of Agriculture as they have implemented their audit responsibilities under the Claims Resolution Act of2010," "responding to questions raised by thousands of non-Class Members who sought to determine their eligibility to participate in the Settlement," and "coordinating with farm advocacy groups and enlisting their support to disseminate information about the claims process and to combat fraudulent schemes designed to prey on unsuspecting black farmers." Reply at 2.
Although this case required less in the way of discovery, motions practice, and in-court activity than many class actions, therefore, and although class counsel benefitted from the work performed in Pigford, the manifold complications inherent in crafting and negotiating the Settlement Agreement, and in implementing the enormous claims resolution process, undermine the government's assertion that an ostensible lack of complexity in this case warrants setting counsel's fee award at the very bottom of the range negotiated by the parties.
5. The Risk of Nonpayment The risk of nonpayment is a factor that weighs heavily in favor of a considerable award in this case. Some of the lawyers now denominated as class counsel originally brought Section 14012 complaints to this Court on a contingency fee basis, with no guarantee that their clients' cases would be certified as part of a class action and successfully resolved through settlement or that this result would be achieved at all expeditiously. Counsel instead faced the real prospect of presenting the claims of individual plaintiffs to the CoUtt for determination on a case-by-case basis (probably over many years, given the judicial resources that would be required), as contemplated by the Farm Bill. Given the difficulty of determining with certainty
21

whether particular individuals truly qualified for relief under Section 14012, counsel also ran the risk that many of their clients would be found ineligible even before their claims were adjudicated on the merits.
As for those prospective merits-based adjudications, the litigation contemplated by Section 14012 of the Farm Bill itself promised uncertain results. And even if counsel's clients were to prevail, it was unlikely that enough money would be available to pay the successful litigants (and their attorneys), as the Farm Bill appropriated only $100 million for Section 14012 claims. Finally, even after a Settlement Agreement was reached to resolve the plaintiffs' claims in a non-judicial forum, had funding remained capped at $100 million, "class counsel would have been left to scramble for any fees that could be eked out of a fund vastly insufficient to pay all claims against it, and the payment of any fees that were forthcoming may have been delayed for years." In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 41.
Moreover, during the course of this litigation, as class counsel have faced the uncertainty of not knowing what amount of compensation they ultimately will receive, they have also incurred significant out-of-pocket expenses, largely associated with pre-settlement outreach and advocacy efforts and with assisting claimants during the extensive post-settlement claims process. Class counsel have reported that, by September of last year, the outlays incurred by one firm alone exceeded ten million dollars. See Reply at 7-8; id., Ex. A (Declaration of James S. Farrin) (describing firm's payments and obligations as exceeding $10 million, leading to maxedout credit lines, the laying off of staff members, and the necessity of signing personal guarantees on loans). And as of earlier this week, two firms- the Law Offices of James Scott Fan·in and Morgan & Morgan, P.A.- reported that they have collectively incurred in excess of$18 million in out-of-pocket expenses and obligations in connection with this case. See Supp. Filing at I.
22

To date, the Farrin firm has incurred over $13 million in expenses for client communications, legislative activities, public relations eff01ts, legal fees for outside counsel not working on a contingent basis, expenses related to the claims administration process, and finance charges. See id., Ex. I (Supplemental Declaration of James S. Fan·in). Morgan & Morgan has incun·ed over $5 million in out-of-pocket expenses with respect to similar activities. See id., Ex. 2 (Declaration of Gregorio A. Francis). Other firms have also advanced significant costs throughout the life of this case. Id. at 2.
Yet, to date, these law firms have received no reimbursement for these out-ofpocket expenses which, as characterized by Mr. Fan·in, have "been carried at risk for over five years." Supp. FatTin Dec!.~ 2; see also Francis Dec!.~ 2 (same characterization, "for over four years"). Absent the settlement of this case, they might never have been reimbursed for many of these costs and expenses. And under the terms of the Settlement Agreement, the law firms involved in this litigation agreed that they would not be reimbursed for any of their out-of-pocket expenses or paid any attorneys' fees until the smne time that successful claimants receive their award payments, after the claims process has run its course. See Settlement Agreement §§ V.E.8, V.E.IO. In light of these considerations, the Court's previous observation that this litigation "was no sure bet for plaintiffs' lawyers" was, if anything, an understatement. In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 41.
6. The Amount of Time Devoted to the Case by Plaintiffs' Counsel Class counsel have reported spending an immense amount of time on this action. They say they have assisted over 25,000 class members during the claims process and have submitted approximately 13,000 claim forms, see Mem. at 16- each of which required counsel to attest under penalty of pe1jury that, to the best of counsel's knowledge, the claim was
23

supported by the law and the evidence. See CRA § 201(g)(5). More specifically, according to the updated fee motion, the firms appointed as class counsel have reported to lead class counsel in excess of 40,000 attorney hours and 60,000 paralegal hours spent during the period preceding the Court's approval of the Settlement Agreement and, as the claims process has unfolded, more than 40,000 additional attorney hours and over 100,000 additional paralegal hours between approval ofthe Settlement Agreement and the submission of class counsel's motion. Mem.

Class counsel's work is ongoing: since the filing of their fee motion they have, among other things, worked with the Claims Administrator and the Ombudsman to ensure that the various steps involved in the final stages of the claims process can proceed smoothly, helped to resolve logistical problems regarding the processing of certain categories of claims, cooperated with auditors from the General Accounting Office and the USDA conducting the oversight investigations mandated by the Claims Resolution Act, and coordinated with various parties to finalize preparations for the notification of plaintiffs about the results of their claims and the payment of successful claims. See Mem. at 18-19. Furthermore, class counsel profess themselves "committed to devoting whatever additional time and effort is necessary going forward to bring the claims and payment process to a successful conclusion." Id. at 37. Indeed, class counsel "will continue to incur expenses in connection with this case, and will continue to devote substantial time on behalf of the Class, until all of the Settlement Funds have been distributed in accordance with this Court's orders." Supp. Filing at 1.
The government acknowledges that class counsel "have devoted substantial time and effort to implement the non-judicial claims process established under the Settlement

6

See infi·a note 8 for a discussion regarding documentation for the hours class

counsel have reported expending.

24

Agreement, and to provide legal advice and assistance to class members." Opp. at 6-7. But, the government suggests, class counsel's reported hours must be "grossly inflated, given that there was very little original work to perform in this case." Id. at 7. As the Court already has indicated, it does not agree that this case involved little original work, see supra at 14-21, and it accepts the representations of class counsel as to the number of hours spent by attorneys and paralegals in this case. It believes that the large number of hours expended by class counsel is a product of the complexity of the tasks they undertook and their adherence to the professional obligations owed to the class- not to mention their likely expectation that the Court would base its fee determination in part on an assessment of how good a job they did for their clients.
7. Awards in SimilaT Cases To award the full fee requested by class counsel-7.4% of the common fundwould be consistent with the awards approved in comparable common fund cases, if anything falling at the low end of the range for such awards. As a general matter, "a majority of common fund class action fee awards fall between twenty and thirty percent." In re Baan Co. Sec. Litig., 288 F. Supp. 2d at 17 (quoting Swedish Hosp. Com. v. Shalala, I F.3d at 1272); see Democratic Cent. Comm. ofDist. of Columbia v. Washington Metro. Area Transit Comm'n, 3 FJd at 1575 (finding that 23.3% fee "falls well within the range usually awarded in common fund cases"); see also Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 n.4 (9th Cir. 2002) (describing survey of fee awards in 34 common fund settlements from 1996 to 2001 and finding a majority clustered in the 20% to 30% range). Fees awarded in this circuit "mirror the nationwide numbers." In re Dep't of Veterans Affairs (VA) Data Theft Litig., 653 F. Supp. 2d at 61; see Swedish Hosp. Corp. v. Shalala, 1 F.3d at 1272 (approving 20% award); Trombley v. Nat' I City Bank, 826 F. Supp. 2d at
25

206 (approving 22% to 25% award); In re Baan Co. Sec. Litig., 288 F. Supp. 2d at 17 (approving 28% award); In re Lorazepam & Clorazepate Antitrust Litig., 2003 WL 22037741, at *8-9 (approving 30% award). "In some cases, the percentage has been even greater." Trombley v. Nat' I City Bank, 826 F. Supp. 2d at 206; see Radosti v. Envision EM!, LLC, 760 F. Supp. 2d at 78 (approving 33% award); In re Vitamins Antitrust Litig., 2001 WL 34312839, at *10 (approving 34% award); Wells v. Allstate Ins. Co., 557 F. Supp. 2d at 7 (approving 45% award in "unique" case).
"Larger common funds are typically associated with smaller percentage awards, however, because even a small percentage of a very large fund yields 'a very large fee award."' In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 39 (quoting Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 122 (2d Cir. 2005)). "Where the common fund is wmth many millions or even billions of dollars- in so-called 'megafund' cases- an appropriate fee may be considerably less than twenty percent of the fund," id., and it is here that "courts most stringently weigh the economics of scale inherent in class actions in fixing an appropriate per cent recovery for reasonable fees." In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297, 351 (N.D. Ga. 1993); see AT&T Mobility Wireless Data Servs. Sales Tax Litig., 792 F. Supp. 2d 1028, 1033 (N.D. Ill. 2011) (surveying studies of awards in megafund cases). Still, even in megafund cases involving recoveries of $100 million or more, "fees of fifteen percent are common." In re Lorazepam & Clorazepate Antitrust Litig., 2003 WL 22037741, at *7; see Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942, 989-90 (E.D. Tex. 2000) (surveying cases decided between 1993 and 1999). And "even in cases where, as here, the common fund is over one billion dollars," an award of 7.4% would be "unexceptional." In re Black Farmers Discr. Litig., 856 F. Supp. 2d at 40. As the Court has explained:
26

According to one study, in cases involving common funds "from $500 million to $1 billion" in 2006 and 2007, "the mean and median awards were both 12.9%" of the fund. In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 792 F. Supp. 2d at 1033 (citing BRIAN T. FITZPATRICK, AN EMPIRICAL STUDY OF CLASS ACTION SETTLEMENTS AND THEIR FEE AWARDS, 7 J. EMPIRICAL LEGAL STUD. 811, 839 (2010)). In other cases, where the class recovery exceed $1 billion, courts have approved awards in the 5 to 10% range. See, ~. Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d at 122 (approving district court's award of 6.5% of $3 billion fund); In re Enron Corp. Securities, Derivative & "ERISA" Litig., 586 F. Supp. 2d 732, 740, 828 (S.D. Tex. 2008) (approving award equal to 9.52% of$7.2 billion fund).
!d.
The awards approved in similar cases, therefore, do not in themselves suggest that
counsel's fee should be reduced below the 7.4% of the common fund that they have requested.
Any such reduction must instead be founded on considerations- such as the complexity and
duration of the case- that reveal this case to be dissimilar to typical megafund cases, in which,
as just discussed, an award of 7.4% clearly would be reasonable.
To that end, class counsel and the government dispute the significance of the fee
award granted in perhaps the most similar case available, Keepseagle v. Vilsack, Civil Action
No. 99-3119 (D.D.C.). In that case- a class action against the USDA involving discrimination
against Native American farmers- Judge Sullivan approved an award equal to 8% of a $760
million common fund. See Order on Plaintiffs' Motion for Final Approval of Settlement,~ 8,
Keepseagle v. Vilsack, Civil Action No. 99-3119, (D.D.C. Apr. 28, 2011). According to the
government, however, Keepseagle does not provide an apt comparison:
[T]he parties vigorously litigated that case for 10 years, which included producing millions of pages of documents during discovery; taking approximately 100 depositions in 13 states, including those of expert witnesses; and briefing class ce1tification twice, including an appeal of class certification pursuant to Federal Rule of Civil Procedure 23(f), before initiating settlement
27

negotiations in 2009. In contrast, in this case, the parties, promptly and without any discovery, reached a settlement agreement, and with briefing only on class certification that required Class Counsel to file only one 25-page brief. Opp. at 7-8 (citation omitted). Notwithstanding these points, the Court tends to agree with class counsel that a comparison with the Keepseagle award supports, rather than undermines, the fee request here. Although Keepseagle was litigated over a much longer period of time and involved extensive discovery, unique complications are present in this case that were absent in Keepseagle, including- to cite just one example- more intricate requirements for entitlement to relief, predicated in part on an unsuccessful attempt to participate in an earlier lawsuit. In addition, only approximately 5,000 claim forms were submitted in Keepseagle, see Status Report on the Claims Process, at I, Keepseagle v. Vilsack, Civil Action No. 99-3119 (D.D.C. Mar. 9, 2012), compared with well over 30,000 claim forms that were submitted in this case, approximately 13,000 of which were prepared and signed by class counsel. See Ombudsman Report at 30. Furthermore, while the government emphasizes the extensive discovery and briefing that took place in Keepseagle prior to the commencement of settlement negotiations, it overlooks the fact that the settlement agreement ultimately approved in that case was closely patterned on the settlement agreement negotiated by class counsel and the government here. See Motion for Preliminary Approval of Settlement Agreement, Ex. I, Keepseagle v. Vilsack, Civil Action No. 99-31 I 9 (D.D.C. Oct. 22, 201 0). Thus, the Keepseagle precedent supports an award of the full 7.4% that class counsel are requesting in this case. It also is worth noting that thousands of plaintiffs who retained the law firms later appointed as class counsel to represent them in their Section 14012 claims signed traditional contingency fee agreements entitling the attorneys to be compensated at a rate of 33% of any
28

recovery. If this serves as any indication of the market value for class counsel's services, it certainly supports a fee award of up to 7.4% of the common fund. See Swedish Hosp. Corp. v. Shalala, I F.3d at 1269 (noting that "a percentage-of-the-fund approach more accurately reflects the economics oflitigation practice" and suggesting that fee agreements with class members can indicate the marketplace value of services); Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 198 (3d Cir. 2000) ("'[O]ne purpose of the percentage method' of awarding fees- rather than the lodestar method, which arguably encourages lawyers to run up their billable hours- 'is to encourage early settlements by not penalizing efficient counsel."' (quoting MANUAL FOR COMPLEX LITIGATION (THIRD)§ 24.121, at 207 (1997))).
Finally, in urging the Court to exercise its discretion to provide class counsel with only a 4.1% fee award, the government anticipated that there would be insufficient funds to pay all successful claims in full. On that premise, it noted that "every dollar that is awarded to Class Counsel in fees is one less dollar that is available to pay successful class members," Opp. at l, and that, in such circumstances, it is even more important for the Court "to act as a fiduciary for the benefit of the class members." !d. at 7. This argument has since completely lost its force, as it is now at least "highly likely" that in fact there will be sufficient funds to pay all prevailing class members the full amounts of their awards. See Status Report at I.
The Claims Administrator has advised class counsel that a total of 17,525 claimants have had their Track A claims provisionally approved for payment of the full Track A liquidated award of $50,000 plus a corresponding tax award of $12,500. Status Report at 2. This is the full amount permitted by the Settlement Agreement and the Farm Bill. See Settlement Agreement§§ Il.KK-NN; Farm Bill§ 14012(f)(l). Furthermore, according to the Claims Administrator, an additional 369 Track A liquidated award payments and tax awards
29

have been provisionally approved in the full amounts, which will be shared among 800 claimants engaged with others in single farming operations. See Status Report at 2. It is anticipated that no Track B awards will be made. Id. at 3. Based on these and other determinations reported by the Claims Administrator, class counsel project that the total amount of Track A liquidated awards, Track A loan awards, and Track A tax awards for prevailing class members will not exceed $1,120,425,000. See id. Thus, even ifthe full $35 million authorized by the Settlement Agreement for implementation costs is utilized, the Ombudsman is paid no more than the amount now anticipated, and the Court were to grant the full 7.4% requested in attorneys' fees and costs, there still would be sufficient settlement funds to pay all prevailing class members the full amounts of the award authorized by the Settlement Agreement- with money remaining from the $1.25 billion appropriated by Congress. See id. at 3-4. Therefore, it no longer can be said that every dollar awarded to class counsel in attorneys' fees is "one less dollar that is available to pay successful class members."7

7

Apart from the seven factors discussed above, a number of courts have concluded

that the benefit to the public conferred by class counsel's efforts "is also worth serious

consideration," even though "the public interest is not always named as a separate factor in the

fee-award determination." Wells v. Allstate Ins. Co., 557 F. Supp. 2d at 8; cf. Burka v. U.S.

Dep't ofl-lealth and Human Servs., 142 F.3d 1286, 1292 (D.C. Cir. 1998) (Wald, J., concurring)

(noting that courts evaluate the public benefit under fee-shifting statutes "all the time"). Class

counsel's success in resolving the Pigford claims that were brought back to life by Congress in

the Farm Bill has served the public interest in at least two significant ways. First, it allowed tens

of thousands of African American farmers who failed to timely file claims in Pigford to have

their grievances adjudicated on the merits, providing long-sought redress with as little further

delay as possible. Second, by resolving these pending claims comprehensively, through a

relatively swift claims process, the Settlement Agreement allows the government to finally turn

the page on this particular chapter in the USDA's history, avoiding the prospect of another

decade or more spent litigating against individual plaintiffs' claims of discrimination. In sum,

class counsel's efforts have garnered a substantial measure ofjustice for a group to which it has

long been denied, in a manner that will allow the government to refocus its limited legal

resources elsewhere.

30

B. Lodestar Cross-Check Some circuits that employ the "percentage of the fund" method to calculate attorneys' fees in common fund class actions have suggested that district courts cross-check the percentage award at which they arrive against the results of the "lodestar" award method, "to determine whether the percentage award roughly reflects the time and expertise the attorneys invested in the case." In re Dep't of Veterans Affairs CVA) Data Theft Litig., 653 F. Supp. 2d at 61 (citing Gunter v. Ridgewood Energy Corp., 223 F.3d at 195 n.l ). In this circuit, such a lodestar cross-check is not required, Trombley v. Nat' I City Bank, 826 F. Supp. 2d at 205 (citing Swedish Hosp. Corp. v. Shalala, I F.3d at 1266-67), although district courts are free to employ such a cross-check at their discretion to confirm the reasonableness of an award. See, 5h&, Wells v. Allstate Ins. Co., 557 F. Supp. 2d at 7; In re Baan Co. Sec. Litig., 288 F. Supp. 2d at 19-20. Class counsel report that a lodestar calculation of the hours they expended as of the date they submitted their updated fee motion in September 2012, using rates from the "Laffey Matrix," yields an amount of approximately $50 million. Mem. at 39.8 This figure does not include the considerable hours spent by class counsel since the filing of the updated fee motion

8

The government questions the accuracy of class counsel's lodestar analysis,

pointing out that class counsel have not provided time records or affidavits delineating the hours

they have expended or the specific tasks for which they seek payment, nor have they identified

the billing rates they applied or each attorney's years of experience. Opp. at 7-8 n.4. Requiring

the Court to examine and evaluate the detailed submissions that the government contemplates,

however, would defeat one of the primary benefits of the "percentage of the fund" method.

Indeed, the advantage of this method over the lodestar approach is that the latter "makes

considerable demands upon judicial resources since it can be exceptionally difficult for a court to

review attorney billing information over the life of a complex litigation and make a

determination about whether the time devoted to the litigation was necessary or reasonable."

Swedish Hosp. Corp. v. Shalala, I F.3d at 1269-70. In the context of a large class action

involving tens of thousands of attomey hours, particularly one- as here- where the awards to

the successful claimants cannot be calculated or distributed until the amount designated for

attorneys' fees has been set, such an undertaking would likely result "in a substantial delay in

distribution of the common fund to the class." !d.

31

last September, or the additional hours they will have to devote on behalf of the class "until all of the Settlement Funds have been distributed in accordance with this Court's orders." Supp. Filing at I. It also does not take into account class counsel's out-of-pocket expenditures, which they now report to be over$ I 8 million. !d.
A fee award set at 7.4% ofthe common fund (i.e., $90,835,000) would come to less than twice the $50 million lodestar figure supplied by class counsel - a figure that itself is incomplete because it does not include any of class counsel's work over the past nine months. Such a multiplier -less than two times the lodestar- is unremarkable in common fund cases. In fact, "multiples ranging up to 'four are frequently awarded in common fund cases when the lodestar method is applied."' Lorazepam & Clorazepate Antitrust Litig., 2003 WL 2203774I, at *9 (quoting In re Prudential Ins. Co. of Am. Sales Practices Litig., I48 F.3d 283, 34I (3d Cir. I998)); see In re Baan Co. Sec. Litig., 288 F. Supp. 2d at I9-20 (reviewing counsel's reported lodestar and finding "that a multiplier of 2.0 or less falls well within a range that is fair and reasonable"); see also Swedish Hosp. Corp. v. Shalala, I F.3d at I263, I272 (approving fee award approximately 3.3 times the lodestar amount). Applying a lodestar cross-check, therefore, confirms that the award sought by class counsel is neither unusual nor unreasonable, in light of the considerable time and expertise devoted to this case by class counsel.
IV. CONCLUSION Class counsel have undertaken the immense challenge presented by this action with the utmost professionalism and integrity, exhibiting skill, diligence, and efficiency in all aspects of their duties. As noted earlier, they also have committed themselves to devoting "whatever additional time and effort is necessary going forward to bring the claims and payment process to a successful conclusion." Mem. at 37; see also Supp. Filing at I (noting that class
32

counsel "will continue to devote substantial time on behalf of the Class, until all of the

Settlement Funds have been distributed in accordance with this Court's orders"). For the reasons

stated above, class counsel's updated motion for an award of attorneys' fees and expenses will be

granted in the full amount requested. An Order consistent with this Opinion will issue this same

day.

SO ORDERED.
DATE:-1- '\\ )\ 3

crz~ z&·.~.... ,
PAUL L. FRIEDMAN United States District Judge

33

 </s> Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 1 of 57
APPEAL,CLOSED,CONSOL,PCLAIM,REGISTRY,STAYED
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:08−mc−00511−PLF

In re BLACK FARMERS DISCRIMINATION LITIGATION Assigned to: Judge Paul L. Friedman Case: 1:12−cv−01893−RJL
Case in other court: USCA, 11−05334
12−05019 Cause: Civil Miscellaneous Case
In Re

Date Filed: 08/07/2008 Date Terminated: 10/27/2011 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

BLACK FARMERS DISCRIMINATION LITIGATION

represented by Andrew H. Marks COFFEY BURLINGTON 2601South Bayshore Drive, PH Miami, FL 33133 (305) 858−2900 Fax: (305) 858−5261 Email: amarks@markslawoffices.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Joseph Frantz CONLON, FRANTZ & PHELAN, LLP 1740 N. Street, NW Suite One Washington, DC 20036 (202) 331−7050 Fax: (202) 331−9306 Email: dfrantz@conlonfrantz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dedrick Brittenum , Jr. 6465 Quail Hollow Road Suite 401C Memphis, TN 38120 (901) 751−7932 Email: db@brittenumbruce.com TERMINATED: 03/01/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Faya R. Toure P.O. Box 1290 Selma, AL 36702 (334) 875−9264 Fax: (334) 875−9853 Email: fayarose@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Precious T. Martin , Sr. PRECIOUS MARTIN, SR & ASSOCIATES, PLLC Post Office Box 373 821 North Congress Street Jackson, MS 39205−0373 (601) 944−1447 Fax: (601) 944−1448 Email: pmartin@ptmandassoc.com

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 2 of 57

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott William Weinstein MORGAN & MORGAN, P.A. 12800 University Drive Suite 600 Fort Myers, FL 33907−5337 (239) 433−6880 Email: sweinstein@forthepeople.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Non−Party Respondent
NICOLE F.J. HAMANN Claims Administrator

Plaintiff ALL PLAINTIFFS

represented by Alphonso Michael Espy MIKE ESPY, PLLC Lamar Life Building 317 East Capital Street Suite 101 Jackson, MS 39201 (601) 355−9101 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Andrew H. Marks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anurag Varma AKIN GUMP STRAUSS HAUER & FELD LLP Robert S. Strauss Tower 2001 K Street, NW Washington, DC 20006 (202) 887−4222 Fax: (202) 887−4288 Email: avarma@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin G. Chew BROWN RUDNICK LLP 601 Thirteenth Street, NW Suite 600S Washington, DC 20005 (202) 536−1785 Fax: (202) 536−1701 Email: bchew@brownrudnick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian P. Phelan CONLON, FRANTZ & PHELAN LLP 1818 N Street, NW Suite 400 Washington, DC 20036 (202) 331−7050 Fax: 202−331−9306

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 3 of 57
Email: bphelan@conlonfrantz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Joseph Frantz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C. Silver SILVER MILLER 11780 W. Sample Road Coral Springs, FL 33065 (954) 516−6000 Email: DSilver@SilverMillerLaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary Edward Mason WHITFIELD BRYSON & MASON LLP 5101 Wisconsin Avenue, NW Suite 305 Washington, DC 20016 (202) 429−2290 Fax: (202) 429−2294 Email: gmason@wbmllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregorio Francis MORGAN & MORGAN, P.A. 20 North Orange Avenue Suite 1600 Orlando, FL 32801 (407) 420−1414 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Harris L. Pogust POGUST & BRASLOW, LLC Eight Tower Bridge 161 Washington Street Suite 940 Conshohocken, PA 19428 (610) 941−4204 Fax: (610) 941−4245 Email: hpogust@pbmattorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Henry Sanders CHESTNUT, SANDERS AND SANDERS, LLC P.O. Box 1290 One Union Street Selma, AL 36702 (334) 526−4531 Fax: (334) 875−9853 Email: hank23sanders@gmail.com

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 4 of 57
LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
J Andrew Meyer MORGAN & MORGAN, P.A. 12800 University Drive Suite 600 Fort Myers, FL 33907−5337 (813) 223−5505 Email: andrew@jandrewmeyer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Strom STROM LAW FIRM, LLC 2110 North Beltline Boulevard Columbia, SC 29204 (803) 252−4800 Fax: (803) 252−4801 Email: petestrom@stromlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laurel Pyke Malson CROWELL & MORING LLP 1001 Pennsylvania Avenue, NW Suite 1100 Washington, DC 20004−2595 (202) 624−2576 Fax: (202) 628−5116 Email: lmalson@crowell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip L. Fraas LAW OFFICE OF PHILLIP L. FRAAS 1455 Pennsylvania Avenue, NW Suite 400 Washington, DC 20004 (202) 280−2411 Fax: (202) 355−1799 Email: phil@phillipfraaslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rose M. Sanders P.O. Box 1290 Selma, AL 36702−1290 (334) 875−9264 Fax: (334) 875−9853 Email: fayarose@gmail.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott William Weinstein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
April England−Albright P.O. Box 312293 Atlanta, GA 31131

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 5 of 57

(334) 327−0451 Fax: (866−276−1131 ATTORNEY TO BE NOTICED

David E. Bell CROWELL & MORING LLP 1001 Pennsylvania Avenue, NW Suite 1100 Washington, DC 20004−2595 (202) 624−2508 Fax: (202) 628−5116 Email: dbell@crowell.com TERMINATED: 03/29/2012

Kindaka J. Sanders SANDERS LAW P.O. Box 1290 Selma, AL 36701 (334) 327−1993 Fax: (334) 460−6611 Email: docksanders@gmail.com ATTORNEY TO BE NOTICED

Michael Wyld Lieberman CROWELL & MORING LLP 1001 Pennsylvania Avenue, NW Suite 1100 Washington, DC 20004−2595 (202) 624−2776 Fax: (202) 628−5116 Email: mlieberman@crowell.com ATTORNEY TO BE NOTICED

Plaintiff LINDA BURKES

represented by Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer I. Klar RELMAN, DANE & COLFAX, PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 (202) 728−1888 x111 Fax: (202) 728−0848 Email: jklar@relmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Peter Relman RELMAN, DANE & COLFAX, PLLC 1225 19th Street, N.W. Suite 600 Washington, DC 20036−2456 (202) 728−1888 Fax: (202) 728−0848 Email: jrelman@relmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reed Colfax RELMAN, DANE & COLFAX PLLC 1225 Nineteenth Street, NW

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 6 of 57

Suite 600 Washington, DC 20036−2456 (202) 728−1888 Fax: (202) 728−0848 Email: RColfax@relmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harris L. Pogust (See above for address) TERMINATED: 08/06/2009

Plaintiff BOBBIE PACE

represented by Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Peter Relman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reed Colfax (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harris L. Pogust (See above for address) TERMINATED: 08/06/2009

Plaintiff WALLACE GRAHAM

represented by Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harris L. Pogust (See above for address) TERMINATED: 08/06/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Peter Relman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reed Colfax (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 7 of 57

Plaintiff CHARLES E. LEE
Plaintiff IRIS L. MIZELL CA−08−1070
Plaintiff ANNIE LEE THOMAS CA−08−940

represented by Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Peter Relman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reed Colfax (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Peter Relman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reed Colfax (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Peter Relman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reed Colfax (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 8 of 57

Plaintiff ANITTA MCINNIS CA−08−940
Plaintiff CHARLES RODGERS CA−08−940
Plaintiff YVONNE GREEN CA−08−940 Plaintiff GERTRUDE RANKIN
Plaintiff

represented by Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Peter Relman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reed Colfax (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Peter Relman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reed Colfax (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert C. Hilliard HILLIARD MUNOZ GONZALES, LLP 719 S. Shoreline Suite 500 Corpus Christi, TX 78401 (361) 882−1612 Fax: (361) 882−3015 Email: dee@hmglawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 9 of 57

EDWARD T. MILLER

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff DOTTY A. RODGER

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff TONIA W. JONES

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff SABRINA MICHELLE HOWZE

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MARY RUTH HOWZE

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff PHYLLIS A. MCFARLAND

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff FRANK S. EVERETT

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JOHN J. JONES

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff FLORIDA NEWELL

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff RICHARD MCCARTY

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 10 of 57

Plaintiff LOUIS NOBLES

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff RANNIE WOULARD

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff PATRICIA EVERETT

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff TERRY D. EVERETT

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MAXINE DEAR

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff MILDRED A. EVERETT

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff EDNA HOLLEY

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ARTHUR HOWZE, JR.

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff VELMA HUSBAND

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff RITA PEEBLES MCCARTY

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 11 of 57

Plaintiff JEANIE S. MCDONALD
Plaintiff CLEVELAND THOMAS
Plaintiff ELLA R. TURNER
Plaintiff CAROLYN L. WALLACE
Plaintiff GENELL BROWN
Plaintiff JOYCE JEAN JURY
Plaintiff ANNIE M. TURNER

represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert C. Hilliard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Ombudsman
ALVA Y. WALLER 240 Tuckerman Street, NW Washington, DC 20011 (202) 680−830
Ombudsman
STEPHEN CARPENTER 6 West Fifth Street Suite 700D St. Paul, MN 55102 (651) 485−6897

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 12 of 57

V. 2255 PHILLIP L. FRAAS
Defendant EDWARD T. SCHAFER Secretary, U.S. Department of Agriculture TERMINATED: 01/20/2009

represented by Doris Denise Coles−Huff U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2557 Fax: (202) 252−2599 Email: doris.coles@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Sitcov U.S. DEPARTMENT OF JUSTICE Federal Programs Branch, Civil Division 20 Massachusetts Avenue, NW Washington, DC 20001 (202) 514−1944 Fax: (202) 616−8187 Email: michael.sitcov@usdoj.gov TERMINATED: 03/21/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel J. Hines 10685−B Hazelhurst Drive # 17131 Houston, TX 77043 Email: publicrach@yahoo.com TERMINATED: 07/06/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rudolph Contreras US ATTORNEYS OFFICE Judiciary Center Building 555 Fourth Street, NW Room E−4226 Washington, DC 20530 (202) 514−7151 Fax: (202) 514−8780 Email: rudolph.contreras@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamra Tyree Moore U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005 (202) 305−8628 Fax: (202) 616−8460 Email: tamra.moore@usdoj.gov

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 13 of 57

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tamara Lynn Ulrich U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 305−1432 Fax: (202) 616−8470 Email: tamara.ulrich@usdoj.gov TERMINATED: 07/06/2012

Defendant
THOMAS J. VILSACK Secretary, U.S. Department of Agriculture

represented by Megan Anne Crowley COVINGTON & BURLING LLP 850 Tenth Street, NW One City Center Washington, DC 20001 (202) 662−5544 Fax: (202) 778−5544 Email: mcrowley@cov.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Tamara Lynn Ulrich (See above for address) TERMINATED: 07/06/2012 ATTORNEY TO BE NOTICED

Tamra Tyree Moore (See above for address) TERMINATED: 09/30/2015

Defendant LILLIE M. WINGARD

represented by LILLIE M. WINGARD PO Box 974 Kasciusko, MS 39090−0974 PRO SE

Defendant ROBERT E. WALKER

represented by ROBERT E. WALKER 312 19th Avenue Apt. 615 Tuscaloosa, AL 35401 PRO SE

V. Interested Party HENRY BARRIS
Interested Party MUHAMMAD ROBBALAA

represented by HENRY BARRIS PRO SE
Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 14 of 57

MUHAMMAD ROBBALAA PRO SE

Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party KARLA K. BATES−ADAMS

represented by KARLA K. BATES−ADAMS 524 W. McFarland Hill City, KS 67642 PRO SE

Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party TERRIE L. BATES−BEST

represented by TERRIE L. BATES−BEST 524 W. McFarland Hill City, KS 67642 PRO SE

Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party THEODORE B. BATES, Jr.

represented by THEODORE B. BATES, Jr. 524 McFarland Hill City, KS 67642 PRO SE

Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party BRAD E. BATES

represented by BRAD E. BATES 524 W. McFarland Hill City, KS 67642 PRO SE

Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party AVA L. BATES

represented by AVA L. BATES 524 W. McFarland Hill City, KS 67642 PRO SE

Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 15 of 57

Interested Party KERRY F. BATES
Interested Party ADA C. BATES
Interested Party DORIS GRAY
Interested Party ERROL VON HART
Interested Party DIAHANN C. STEVENS
Interested Party BOOKER T. WOODARD

represented by KERRY F. BATES 524 W. McFarland Hill City, KS 67642 PRO SE
Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ADA C. BATES 524 W. McFarland Hill City, KS 67642 PRO SE
Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DORIS GRAY PRO SE
Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ERROL VON HART 903 James Cross Ave Albany, NY 31721 PRO SE
Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DIAHANN C. STEVENS 380 East Lake Blvd. SE Apt. 316 Atlanta, GA 30317 PRO SE
Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BOOKER T. WOODARD 157 Isaac Newsome Road Pinola, MS 39149 PRO SE
Faya R. Toure

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 16 of 57

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party JUSTIN G. FOUTS

represented by JUSTIN G. FOUTS PRO SE

Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party WILLA G. FOUTS

represented by WILLA G. FOUTS PRO SE

Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party THOMAS BURRELL

represented by Paul A. Robinson , Jr. LAW OFFICE OF PAUL ROBINSON 3749 Marty Street Memphis, TN 38109 901−649−4053 Fax: 601−328−1803 Email: problaw937@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party ARTIS MARK, JR

represented by ARTIS MARK, JR 110 Tuscan Avenue Hattiesburg, MS 39401 601−584−0843 PRO SE

Interested Party LEON PIERRE

represented by LEON PIERRE 2350 Cleveland Pl Unit 707 Denver, CO 80205 PRO SE

Interested Party HERB BASSIER

Interested Party GERARD PIERRE

Movant
GREGORY K. CHESTNUT Adinistrator of the Estate of J.L. Chestnut, Jr. TERMINATED: 07/11/2012

represented by Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald Otto Gaiser , Jr.

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 17 of 57

GAISER & JOHNSTON 36B Church Street Birmingham, AL 35213 (205) 870−1088 Email: ron@gaiserandjohnston.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
JOHN BOYD President of the National Black Farmers' Association

represented by Faya R. Toure (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander John Pires , Jr. PIRES COOLEY 4401 Q Street, NW Washington, DC 20007 (202) 905−6706 Fax: (202) 333−1134 Email: farmerslawyer@aol.com ATTORNEY TO BE NOTICED

Movant
BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC.

represented by Paul A. Robinson , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant ADAM J. SEGAL

represented by Jesse Strauss STRAUSS LAW PLLC 305 Broadway 9th Floor New York, NY 10007 (212) 822−1496 Email: jesse@strausslawpllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant BLACK BELT JUSTICE CENTER

represented by Tracy Lloyd McCurty BLACK BELT JUSTICE CENTER 4323 F Street, SE Washington, DC 20019 (202) 486−9857 Email: tmccurty@blackbeltjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
COMPETITIVE ENTERPRISE INSTITUTE'S CENTER FOR CLASS ACTION FARINESS

represented by Adam Schulman COMPETITIVE ENTERPRISE INSTITUTE Center for Class Action Fairness 1310 L Street NW 7th Floor Suite 7th Floor Washington, DC 20005 (610) 457−0856 Email: adam.schulman@hlli.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 18 of 57

Date Filed 08/08/2008 08/12/2008 08/15/2008
08/15/2008 08/19/2008 08/19/2008 08/19/2008 08/22/2008 08/22/2008
09/02/2008 09/04/2008 09/05/2008 09/05/2008
09/05/2008 09/08/2008 10/01/2008
10/16/2008

# Docket Text
1 ORDER consolidating cases for all purposes. Signed by Judge Paul L. Friedman on 8/8/08. (lcplf2) (Entered: 08/08/2008)
2 MOTION for Extension of Time to File Further Response to Proposed Case Management Order No. 1 by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Malson, Laurel) (Entered: 08/12/2008)
MINUTE ORDER granting 2 plaintiffs' motion for extension of time up to and including August 22, 2008 for further response to proposed case management order no. 1. Signed by Judge Paul L. Friedman on August 15, 2008. (MA) (Entered: 08/15/2008)
Set/Reset Deadlines: Further response to proposed case management order no. 1 due by 8/22/2008 (mm) (Entered: 08/18/2008)
3 ORDER re management of newly−filed case Civil Action No. 08−1381. Signed by Judge Paul L. Friedman on August 15, 2008. (MA) (Entered: 08/19/2008)
4 ORDER that Civil Action No. 08−1381 is stayed in its entirety for a period of 90 days from June 27, 2008 for the purpose of settlement negotiations. Signed by Judge Paul L. Friedman on August 15, 2008. (MA) (Entered: 08/19/2008)
Set/Reset Deadlines: Status Report due by 9/8/2008. (mm) (Entered: 08/19/2008)
5 REPLY by The Morgan Group to Proposed CMO 1 filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Weinstein, Scott) (Entered: 08/22/2008)
6 MOTION for Order Entering the Modified Proposed Case Management Order No. 1 by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Revised Proposed Case Management Order No. 1, # 2 Red−Line Comparison Between New Proposed CMO 1 and the Original Proposed CMO 1)(Malson, Laurel) (Entered: 08/22/2008)
7 REPLY to the Morgan Group's Comments to Proposed Case Management Order No. 1 filed by ALL PLAINTIFFS, BLACK FARMERS DISCRIMINATION LITIGATION. (Frantz, David) (Entered: 09/02/2008)
8 RESPONSE re 5 Reply to Document filed by the Morgan Group filed by EDWARD T. SCHAFER. (Moore, Tamra) (Entered: 09/04/2008)
9 Initial ORDER re Civil Action No. 08−1513. Signed by Judge Paul L. Friedman on September 5, 2008. (MA) (Entered: 09/05/2008)
10 ORDER that Civil Action No. 08−1513 is stayed in its entirety for a period of 90 days from June 27, 2008 (that is, until September 29, 2008) for the purpose of settlement negotiations. Signed by Judge Paul L. Friedman on September 5, 2008. (MA) (Entered: 09/05/2008)
11 REPLY re 8 Response to Document Morgan Group's Reply filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Weinstein, Scott) (Entered: 09/05/2008)
12 STATUS REPORT by EDWARD T. SCHAFER, ALL PLAINTIFFS. (Malson, Laurel) (Entered: 09/08/2008)
MINUTE ORDER that, upon consideration of the Joint Request for a Stay set forth in the Joint Status Report dated 9/8/08, the lawsuits are stayed in their entirety (including but not limited to defendant's responses to the complaints, the parties' discovery, and defendant's disclosure requirements under Section 14012(e)), for a period of 120 days (until January 26, 2009) for purposes of settlement negotiations. Signed by Judge Paul L. Friedman on October 1, 2008. (MA) (Entered: 10/01/2008)
13 Supplemental MOTION for Order Entering the Modified Proposed Case Management Order No. 1 by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Proposed Case Management Order No. 1)(Malson, Laurel) (Entered: 10/16/2008)

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10/20/2008 10/28/2008 10/28/2008 10/29/2008 11/04/2008 11/07/2008
11/07/2008 11/10/2008
11/10/2008 11/13/2008 11/14/2008 11/14/2008 11/14/2008
11/14/2008 11/17/2008 11/18/2008

14 REPLY to opposition to motion re 13 Supplemental MOTION for Order Entering the Modified Proposed Case Management Order No. 1 filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Weinstein, Scott) (Entered: 10/20/2008)
15 NOTICE of Service for Case No. 08−cv−940 (PLF) by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Affidavit of Service and Exhibits in Support)(Malson, Laurel) (Entered: 10/28/2008)
16 NOTICE of Service for Case No. 08−cv−1062 (PLF) by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Affidavit of Service and Exhibits in Support)(Malson, Laurel) (Entered: 10/28/2008)
17 NOTICE of Service for Case No. 08−cv−1381 (PLF) by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Affidavit of Service and Exhibits in Support)(Malson, Laurel) (Entered: 10/29/2008)
18 MOTION for Hearing and Immediate Status Conference by ALL PLAINTIFFS (Malson, Laurel) (Entered: 11/04/2008)
19 MEMORANDUM OPINION AND ORDER denying as moot Plaintiffs' Motion to Modify Proposed Case Management Order No. 1 and Memorandum in Support 6 ; denying Supplemental Motion of Certain Plaintiffs to Modify Proposed Case Management Order No. 1 13 ; granting Plaintiffs' Motion for Immediate Status Conference 18 . A status conference is hereby scheduled for November 14, 2008 at 10:00 a.m. Signed by Judge Paul L. Friedman on 11/7/08. (lcplf2) (Entered: 11/07/2008)
Set/Reset Hearings: Status Conference set for 11/14/2008 10:00 AM in Courtroom 28A before Judge Paul L. Friedman. (mm) (Entered: 11/10/2008)
20 MOTION for Leave to File Second Amended Complaint and Exhibit 1 Thereto by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Text of Proposed Order, # 2 Second Amended Complaint, # 3 Appendix A to the Second Amended Complaint, # 4 Appendix B to the Second Amended Complaint, # 5 Appendix C to the Second Amended Complaint)(Malson, Laurel) (Entered: 11/10/2008)
21 Memorandum in opposition to re 18 MOTION for Hearing and Immediate Status Conference and in Response to the Court's November 7, 2008 Opinion and Order filed by EDWARD T. SCHAFER. (Hines, Rachel) (Entered: 11/10/2008)
22 RESPONSE TO ORDER OF THE COURT re 19 Memorandum & Opinion, and Reply to Defendant's Response to Plaintiffs' Motion For Immediate Status Conference filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Malson, Laurel) (Entered: 11/13/2008)
Minute Entry for proceedings held before Judge Paul L. Friedman: Status Conference held on 11/14/2008. Parties to submit case management order by 11/17/2008. (Court Reporter Linda Russo) (mm) (Entered: 11/14/2008)
23 NOTICE by EDWARD T. SCHAFER (Sitcov, Michael) (Entered: 11/14/2008)
MINUTE ORDER granting Certain Plaintiffs' Motion for Leave to File a Second Amended Complaint 20 . Plaintiffs in Civil Action No. 08−1381 shall deliver to the Court a courtesy copy of the Second Amended Complaint and all relevant appendices thereto. Signed by Judge Paul L. Friedman on November 14, 2008.(MA) (Entered: 11/14/2008)
24 AMENDED COMPLAINT against EDWARD T. SCHAFER filed by ALL PLAINTIFFS. (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C)(td, ) (Entered: 11/17/2008)
25 MOTION for Order Entering Proposed CMO No. 1 Regarding Informational Website and Phone Bank by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Malson, Laurel) (Entered: 11/17/2008)
26 RESPONSE re 23 Notice (Other) of Defendant filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Frantz, David) (Entered: 11/18/2008)

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11/18/2008 11/21/2008 11/25/2008 12/09/2008 12/09/2008 12/15/2008
12/15/2008 12/19/2008 12/23/2008
12/23/2008 12/23/2008 12/23/2008
12/29/2008 12/31/2008 12/31/2008 01/05/2009

27 Memorandum in opposition to re 25 MOTION for Order Entering Proposed CMO No. 1 Regarding Informational Website and Phone Bank filed by EDWARD T. SCHAFER. (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 11/18/2008)
28 NOTICE of Change of Address by Phillip L. Fraas (Fraas, Phillip) (Entered: 11/21/2008)
29 NOTICE of Service for Cases 08−cv−0882 (PLF), 08−cv−0919 (PLF), 08−cv−0962 (PLF) and 08−cv−1070 (PLF) by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Affidavit Affidavit of Service and Exhibits in Support)(Pogust, Harris) (Entered: 11/25/2008)
30 ORDER re management of consolidated cases. Signed by Judge Paul L. Friedman on December 9, 2008. (MA) (Entered: 12/09/2008)
Set/Reset Deadlines: On or before 12/19/2008, all of the parties to these consolidated cases shall meet, confer and submit to the Court a proposed protective order to govern disclosure and use of the 5(g) list going forward. (mm) (Entered: 12/09/2008)
MINUTE ORDER: Plaintiffs' Motion Requesting Entry of Case Management Order No. 1 Regarding Informational Website and Phone Bank 25 is hereby DENIED for the reasons stated in defendant's opposition to that motion. The Court concludes that defendant's proposed order, attached to defendant's opposition to plaintiffs' motion, is more appropriate under the circumstances of these consolidated cases. The Court therefore shall sign defendant's proposed order this same day. Signed by Judge Paul L. Friedman on December 15, 2008. (MA) (Entered: 12/15/2008)
31 CASE MANAGEMENT ORDER NO. 1 Signed by Judge Paul L. Friedman on 12/15/2008. (mm) (Entered: 12/16/2008)
32 Consent MOTION for Protective Order Regarding "5(g) List" by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 − Statement of Agreement to Conditions for Access to "5(g) List")(Malson, Laurel) (Entered: 12/19/2008)
33 ORDER lifting the stay in this case to permit the parties to submit briefs as to whether this Court should certify these consolidated cases as a limited fund class action. All other aspects of this case will remain stayed while the parties brief the class certification issue. Signed by Judge Paul L. Friedman on 12/23/2008. (lcplf2) (Entered: 12/23/2008)
Set/Reset Deadlines: Parties' Joint Report due by 1/16/2009. (zmm) (Entered: 12/23/2008)
34 PROTECTIVE ORDER regarding "5(g) list". Signed by Judge Paul L. Friedman on 12/23/2008. (mm) (Entered: 12/23/2008)
35 Consent MOTION for Leave to File Third Amended Complaint and Exhibit 1 Thereto by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Text of Proposed Order, # 2 Third Amended Complaint, # 3 Appendix A to the Third Amended Complaint, # 4 Appendix B to the Third Amended Complaint, # 5 Appendix C to the Third Amended Complaint, # 6 Appendix D to the Third Amended Complaint)(Malson, Laurel) (Entered: 12/23/2008)
36 ORDER granting 35 Certain Plaintiffs' Motion for Leave to File Third Amended Complaint. The Third Amended Complaint in Case No. 08−CV−1381 may be filed. Signed by Judge Paul L. Friedman on 12/29/2008. (mm) (Entered: 12/29/2008)
37 STIPULATION of Agreement to Conditions for use of "5(g) Information" by ALL PLAINTIFFS. (Kearney, Jesse) (Entered: 12/31/2008)
38 STIPULATION of Agreement to Conditions for Use of "5(g) Information" by ALL PLAINTIFFS. (Kearney, Jesse) (Entered: 12/31/2008)
39 STIPULATION re 34 Order Statement of Agreement to Conditions for Use of 5(g) Information by BLACK FARMERS DISCRIMINATION LITIGATION. (Weinstein, Scott) (Entered: 01/05/2009)

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01/12/2009 01/14/2009 01/14/2009 01/16/2009 01/16/2009 02/04/2009 02/04/2009 02/04/2009 02/05/2009
02/18/2009 02/19/2009
02/19/2009 02/20/2009 02/20/2009
02/20/2009 03/02/2009

40 Unopposed MOTION for Leave to File Retainer and Website Information For In Camera Review by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Malson, Laurel) (Entered: 01/12/2009)
41 ORDER that Civil Action No. 08−2220 is consolidated with and will be coordinated with all other cases consolidated under Misc. No. 08−0511. Signed by Judge Paul L. Friedman on January 14, 2009. (MA) (Entered: 01/14/2009)
42 ORDER that Civil Action No. 08−2220 is stayed to the same extent and for the same duration as the other cases consolidated under Misc. No. 08−0511. Signed by Judge Paul L. Friedman on January 14, 2009. (MA) (Entered: 01/14/2009)
43 ORDER granting 40 Plaintiffs' Unopposed Motion for Leave to Submit Retainer and Website Information for In Camera Review. Signed by Judge Paul L. Friedman on 1/15/2009. (mm) (Entered: 01/16/2009)
44 STATUS REPORT (Joint) by EDWARD T. SCHAFER. (Attachments: # 1 Text of Proposed Order)(Hines, Rachel) (Entered: 01/16/2009)
45 ORDER re briefing schedule. Signed by Judge Paul L. Friedman on February 3, 2009. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(MA) (Entered: 02/04/2009)
46 MOTION for Order Entering Proposed Case Management Order No. 2 by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Text of Proposed Order)(Malson, Laurel) (Entered: 02/04/2009)
Set/Reset Deadlines: Motion for class certification due by 2/20/2009. Response due by 4/14/2009. Reply due by 5/15/2009. (mm) (Entered: 02/09/2009)
47 NOTICE Of Objection and Intent to File Memorandum in Opposition by BLACK FARMERS DISCRIMINATION LITIGATION re (46 in 1:08−mc−00511−PLF) MOTION for Order Entering Proposed Case Management Order No. 2 Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Weinstein, Scott) (Entered: 02/05/2009)
48 Memorandum in opposition to re 46 MOTION for Order Entering Proposed Case Management Order No. 2 filed by EDWARD T. SCHAFER. (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 02/18/2009)
49 Memorandum in opposition to re (46 in 1:08−mc−00511−PLF) MOTION for Order Entering Proposed Case Management Order No. 2 and Motion For Court to Inquire into Use of "5(g)" List filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Weinstein, Scott) (Entered: 02/19/2009)
57 MOTION for court to inquire into the consortium's use of "5(g) list by BLACK FARMERS DISCRIMINATION LITIGATION; (See Docket Entry no. 49 to view document) (td, ) (Entered: 03/06/2009)
50 NOTICE of Appearance by Tamara Lynn Ulrich on behalf of all defendants Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Ulrich, Tamara) (Entered: 02/20/2009)
51 WITHDRAWN PER MINUTE ORDER FILED 1/28/2010..... MOTION to Certify Class by EDWARD T. SCHAFER, ED SCHAFER (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Ulrich, Tamara) Modified on 9/2/2010 (zmm, ). (Entered: 02/20/2009)
52 ERRATA by EDWARD T. SCHAFER, ED SCHAFER (9 in 1:08−cv−02220−PLF) MOTION to Certify Class filed by ED SCHAFER, EDWARD T. SCHAFER. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Ulrich, Tamara) (Entered: 02/20/2009)
53 Unopposed MOTION for Extension of Time to File Response/Reply as to 46 MOTION for Order Entering Proposed Case Management Order No. 2 by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Text of Proposed

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03/03/2009 03/04/2009
03/05/2009 03/05/2009 03/05/2009 03/05/2009 04/07/2009 04/07/2009 04/13/2009 04/13/2009 04/17/2009
04/17/2009 04/30/2009 04/30/2009 05/20/2009 06/09/2009

Order)(Malson, Laurel) (Entered: 03/02/2009)
54 REPLY to opposition to motion re 46 MOTION for Order Entering Proposed Case Management Order No. 2 filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Malson, Laurel) (Entered: 03/03/2009)
55 REPLY re (49 in 1:08−mc−00511−PLF, 7 in 1:08−cv−02220−PLF) Memorandum in Opposition, to "The Morgan Group's" Motion for Court to Inquire into the Use of the 5(G) List filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Frantz, David) (Entered: 03/04/2009)
56 ENTERED IN ERROR.....NOTICE by EDWARD T. SCHAFER re 49 Memorandum in Opposition, (Moore, Tamra) Modified on 3/6/2009 (td, ). (Entered: 03/05/2009)
58 RESPONSE re 57 , 49 MOTION for court to inquire into the consortium's use of "5(g) list filed by EDWARD T. SCHAFER. (td, ) (Entered: 03/06/2009)
NOTICE OF CORRECTED DOCKET ENTRY: re 56 Notice (Other) was entered in error and redocketed as docket entry no. 58 . (td, ) (Entered: 03/06/2009)
59 ORDER granting 53 Certain Plaintiffs' Motion for Extension of Time to File Reply to Defendant's Objection to Plaintiffs' Proposed Case Management Order No. 2. Ordered that Plaintiffs have until 3/3/2009 to file their reply. Signed by Judge Paul L. Friedman on 3/5/2009. (mm) (Entered: 03/06/2009)
60 ENTERED IN ERROR.....NOTICE of Appearance by Scott William Weinstein on behalf of BLACK FARMERS DISCRIMINATION LITIGATION Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Weinstein, Scott) Modified on 4/8/2009 (td, ). (Entered: 04/07/2009)
NOTICE OF CORRECTED DOCKET ENTRY: re 60 Notice of Appearance was entered in error and counsel J. Andrew Meyer shall apply for an ECF password. (td, ) (Entered: 04/08/2009)
61 Unopposed MOTION for Order Modifying the Class Certification Briefing Schedule by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Malson, Laurel) (Entered: 04/13/2009)
62 NOTICE of Appearance by J A Meyer on behalf of ALL PLAINTIFFS (Meyer, J) (Entered: 04/13/2009)
63 RESPONSE re (9 in 1:08−cv−02220−PLF, 51 in 1:08−mc−00511−PLF) MOTION to Certify Class by Morgan Group including Motion to Certify Class and Appoint Class Counsel and Class Representatives filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Attachments: # 1 Declaration Exhibit A Declarations of Class Representatives)Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Weinstein, Scott) (Entered: 04/17/2009)
64 Memorandum in opposition to re 51 MOTION to Certify Class filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Malson, Laurel) (Entered: 04/17/2009)
MINUTE ORDER granting (61) Plaintiffs' Unopposed Motion to Modify Class Certification Briefing Schedule. The defendant shall file its reply on or before May 20, 2009. Signed by Judge Paul L. Friedman on April 30, 2009. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(MA) (Entered: 04/30/2009)
Set/Reset Deadlines: Defendant's Reply due by 5/20/2009. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(zmm) (Entered: 05/01/2009)
65 REPLY to opposition to motion re (9 in 1:08−cv−02220−PLF, 51 in 1:08−mc−00511−PLF) MOTION to Certify Class filed by EDWARD T. SCHAFER, ED SCHAFER. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Ulrich, Tamara) (Entered: 05/20/2009)
66 MOTION to Stay the Class Certification Proceedings by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Malson, Laurel) (Entered: 06/09/2009)

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06/23/2009 06/23/2009
07/06/2009
07/20/2009 07/31/2009 07/31/2009 07/31/2009 07/31/2009 07/31/2009 07/31/2009 07/31/2009 07/31/2009 07/31/2009 08/03/2009 08/03/2009 08/03/2009 08/03/2009

67 Memorandum in opposition to re 66 MOTION to Stay the Class Certification Proceedings filed by ALL PLAINTIFFS. (Attachments: # 1 Text of Proposed Order Denying Motion for Stay)(Meyer, J) (Entered: 06/23/2009)
68 Memorandum in opposition to re (66 in 1:08−mc−00511−PLF) MOTION to Stay the Class Certification Proceedings filed by EDWARD T. SCHAFER, ED SCHAFER. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Ulrich, Tamara) (Entered: 06/23/2009)
69 WITHDRAWN PER MINUTE ORDER FILED 1/28/2010.....REPLY to opposition to motion re 66 MOTION to Stay the Class Certification Proceedings filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Malson, Laurel) Modified on 1/29/2010 (zmm, ). (Entered: 07/06/2009)
70 Memorandum in opposition to re 66 MOTION to Stay the Class Certification Proceedings and in opposition to request for relief contained in Reply Memorandum (Docket No. 69) filed by ALL PLAINTIFFS. (Meyer, J) (Entered: 07/20/2009)
71 NOTICE of Appearance by Reed Colfax on behalf of LINDA BURKES Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Colfax, Reed) (Entered: 07/31/2009)
72 NOTICE of Appearance by Reed Colfax on behalf of WALLACE GRAHAM Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Colfax, Reed) (Entered: 07/31/2009)
73 NOTICE of Appearance by Reed Colfax on behalf of BOBBIE PACE Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Colfax, Reed) (Entered: 07/31/2009)
74 NOTICE of Appearance by Jennifer I. Klar on behalf of LINDA BURKES Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Klar, Jennifer) (Entered: 07/31/2009)
75 NOTICE of Appearance by Jennifer I. Klar on behalf of WALLACE GRAHAM Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Klar, Jennifer) (Entered: 07/31/2009)
76 NOTICE of Appearance by Jennifer I. Klar on behalf of BOBBIE PACE Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Klar, Jennifer) (Entered: 07/31/2009)
77 NOTICE of Appearance by John Peter Relman on behalf of LINDA BURKES Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Relman, John) (Entered: 07/31/2009)
78 NOTICE of Appearance by John Peter Relman on behalf of WALLACE GRAHAM Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Relman, John) (Entered: 07/31/2009)
79 NOTICE of Appearance by John Peter Relman on behalf of BOBBIE PACE Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Relman, John) (Entered: 07/31/2009)
80 NOTICE of Appearance by Jennifer I. Klar on behalf of CHARLES E. LEE Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Klar, Jennifer) (Entered: 08/03/2009)
81 NOTICE of Appearance by John Peter Relman on behalf of CHARLES E. LEE Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Relman, John) (Entered: 08/03/2009)
82 NOTICE of Appearance by Reed Colfax on behalf of CHARLES E. LEE Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF(Colfax, Reed) (Entered: 08/03/2009)
83 NOTICE of Appearance by Benjamin G. Chew on behalf of ALL PLAINTIFFS (Chew, Benjamin) (Entered: 08/03/2009)

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08/03/2009 08/03/2009 08/04/2009
08/04/2009 08/04/2009
08/04/2009 08/04/2009
08/04/2009 08/04/2009
08/04/2009 08/06/2009 08/06/2009 08/06/2009 08/06/2009 08/06/2009 08/06/2009

84 NOTICE of Appearance by David C. Silver on behalf of ALL PLAINTIFFS (Silver, David) (Entered: 08/03/2009)
85 NOTICE of Appearance by Anurag Varma on behalf of ALL PLAINTIFFS (Varma, Anurag) (Entered: 08/03/2009)
86 ORDER: Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, Civil Action No. 09−1422 is consolidated with and will be coordinated with all other cases consolidated under Misc. No. 09−0511, In re Black Farmers Discrimination Litigation. See Order for specifics. Signed by Judge Paul L. Friedman on 8/4/2009. Associated Cases: 1:08−mc−00511−PLF, 1:09−cv−01422−PLF(mm) (Entered: 08/05/2009)
87 ORDER: Civil Action No. 09−1422 is stayed to the same extent and for the same duration as the other cases consolidated under Misc. No. 08−0511. See Order for specifics. Signed by Judge Paul L. Friedman on 8/4/2009. Associated Cases: 1:08−mc−00511−PLF, 1:09−cv−01422−PLF(mm) (Entered: 08/05/2009)
88 ORDER: Pursuant to 42(a) of the Federal Rules of Civil Procedure, Civil Action No. 09−1401 is consolidated with and will be coordinated with all other cases consolidated under Misc. No. 08−0511, In re Black Farmers Discrimination Litigation. See Order for specifics. Signed by Judge Paul L. Friedman on 8/4/2009. Associated Cases: 1:08−mc−00511−PLF, 1:09−cv−01401−PLF(mm) (Entered: 08/05/2009)
89 ORDER: Ordered that Civil Action No. 09−1401 is stayed to the same extent and for the same duration as the other cases consolidated under Misc. No. 08−0511. See Order for specifics. Signed by Judge Paul L. Friedman on 8/4/2009. Associated Cases: 1:08−mc−00511−PLF, 1:09−cv−01401−PLF(mm) (Entered: 08/05/2009)
90 ORDER: Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, Civil Action No. 09−1323 is consolidated with and will be coordinated with all other cases consolidated under Misc. No. 08−0511, In re Black Farmers Discrimination Litigation. See Order for specifics. Signed by Judge Paul L. Friedman on 8/4/2009. Associated Cases: 1:08−mc−00511−PLF, 1:09−cv−01323−PLF(mm) (Entered: 08/05/2009)
91 ORDER: Civil Action No. 09−1323 is stayed to the same extent and for the same duration as the other cases consolidated under Misc. No. 08−0511. See Order for specifics. Signed by Judge Paul L. Friedman on 8/4/2009. Associated Cases: 1:08−mc−00511−PLF, 1:09−cv−01323−PLF(mm) (Entered: 08/05/2009)
92 ORDER: Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, Civil Action No. 09−1019 is consolidated with and will be coordinated with all other cases consolidated under Misc. No. 08−0511, In re Black Farmers Discrimination Litigation. See Order for specifics. Signed by Judge Paul L. Friedman on 8/4/2009. Associated Cases: 1:08−mc−00511−PLF, 1:09−cv−01019−PLF(mm) (Entered: 08/05/2009)
93 ORDER: Civil Action No. 09−1019 is stayed to the same extent and for the same duration as the other cases consolidated under Misc. No. 08−0511. See Order for specifics. Signed by Judge Paul L. Friedman on 8/4/2009. Associated Cases: 1:08−mc−00511−PLF, 1:09−cv−01019−PLF(mm) (Entered: 08/05/2009)
94 NOTICE OF WITHDRAWAL OF APPEARANCE as to CHARLES E. LEE. Attorney Harris L. Pogust terminated. (Pogust, Harris) (Entered: 08/06/2009)
95 NOTICE OF WITHDRAWAL OF APPEARANCE as to BOBBIE PACE. Attorney Harris L. Pogust terminated. (Pogust, Harris) (Entered: 08/06/2009)
96 NOTICE OF WITHDRAWAL OF APPEARANCE as to WALLACE GRAHAM. Attorney Harris L. Pogust terminated. (Pogust, Harris) (Entered: 08/06/2009)
97 NOTICE OF WITHDRAWAL OF APPEARANCE as to LINDA BURKES. Attorney Harris L. Pogust terminated. (Pogust, Harris) (Entered: 08/06/2009)
98 NOTICE of Appearance by Rachel J. Hines on behalf of EDWARD T. SCHAFER (Hines, Rachel) (Entered: 08/06/2009)
99 STIPULATION of Agreement to Conditions for Use of 5(g) Information by ALL PLAINTIFFS. (Varma, Anurag) (Entered: 08/06/2009)

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08/06/2009 08/06/2009 08/07/2009 08/12/2009 08/21/2009 08/21/2009 08/21/2009 09/04/2009 09/04/2009 09/15/2009
09/15/2009
09/15/2009 09/25/2009 10/07/2009 11/12/2009
11/12/2009

100 STIPULATION of Agreement to Conditions for Use of 5(g) Information by ALL PLAINTIFFS. (Chew, Benjamin) (Entered: 08/06/2009)
101 STIPULATION of Agreement to Conditions for Use of 5(g) Information by ALL PLAINTIFFS. (Silver, David) (Entered: 08/06/2009)
102 STIPULATION of Agreement to Conditions for Use of 5(g) Information by BEATRICE BECKLEY. Associated Cases: 1:08−mc−00511−PLF, 1:09−cv−01019−PLF(Hilliard, Robert) (Entered: 08/07/2009)
103 NOTICE of Service for Case No. 09−1019 by BEATRICE BECKLEY (Attachments: # 1 Affidavit of Service)Associated Cases: 1:08−mc−00511−PLF, 1:09−cv−01019−PLF(Hilliard, Robert) (Entered: 08/12/2009)
104 STIPULATION of Agreement to Conditions for Use of 5(g) Information (Kevin W. Grillo) by BEATRICE BECKLEY. Associated Cases: 1:08−mc−00511−PLF, 1:09−cv−01019−PLF(Hilliard, Robert) (Entered: 08/21/2009)
105 STIPULATION of Agreement to Conditions for Use of 5(g) Information (Mikal C. Watts) by BEATRICE BECKLEY. Associated Cases: 1:08−mc−00511−PLF, 1:09−cv−01019−PLF(Hilliard, Robert) (Entered: 08/21/2009)
106 STIPULATION of Agreement to Conditions for Access to "5(g) List" by LINDA BURKES, BOBBIE PACE, WALLACE GRAHAM, CHARLES E. LEE. (Colfax, Reed) (Entered: 08/21/2009)
107 NOTICE of Change of Firm Name and Address by BLACK FARMERS DISCRIMINATION LITIGATION Associated Cases: 1:08−mc−00511−PLF et al.(Mason, Gary) (Entered: 09/04/2009)
108 MOTION to Withdraw (69 in 1:08−mc−00511−PLF) Reply to opposition to Motion to Stay Class Certification Proceedings by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order Proposed Order − Motion for Leave to Withdraw Reply)Associated Cases: 1:08−mc−00511−PLF et al.(Malson, Laurel) (Entered: 09/04/2009)
109 ORDER that plaintiffs' counsel and counsel for the government shall investigate the possibility that this Court's December 23, 2008 protective order has been violated; parties shall file a joint report containing their respective views no later than November 6, 2009. Signed by Judge Paul L. Friedman on September 14, 2009. Associated Cases: 1:08−mc−00511−PLF et al.(MA) (Entered: 09/15/2009)
MINUTE ORDER amending the Court's September 14, 2009 Order [#109]. Footnote 1 should read as follows: The Court was notified of this matter by a letter sent by Bernice C. Atchison, president of an Alabama organization called Black Farmers of Chilton County. Those involved in this litigation who wish to view the letter may contact Barbara Thomas, law clerk to the Hon. Paul L. Friedman, at 202−354−3490. Signed by Judge Paul L. Friedman on September 15, 2009. Associated Cases: 1:08−mc−00511−PLF et al.(MA) (Entered: 09/15/2009)
Set/Reset Deadlines: Joint Report due by 11/6/2009. (zmm, ) (Entered: 09/16/2009)
110 STATUS REPORT in Response to the Court's September 14, 2009 Order Regarding Potential Violations of the Court's Protective Order Regarding the 5(g) List by ALL PLAINTIFFS. (Attachments: # 1 Exhibit Affidavit of Dean Lipson and associated exhibit)(Malson, Laurel) (Entered: 09/25/2009)
111 MOTION Relief from Court's September 15, 2009 Order re 109 Order, by TOM VILSACK (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 10/07/2009)
112 ORDER granting (111) defendant's motion for relief in case 1:08−mc−00511−PLF. Signed by Judge Paul L. Friedman on November 12, 2009. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01401−PLF, 1:09−cv−01422−PLF(MA) (Entered: 11/12/2009)
113 ORDER that Mr. Weinstein shall file a report in which he describes Morgan & Morgan's knowledge of and/or involvement with Mr. Gilbert's recruitment activities. Signed by Judge Paul L. Friedman on November 12, 2009. Associated Cases:

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11/12/2009 11/12/2009
11/12/2009 11/12/2009
11/12/2009 11/12/2009
11/18/2009 11/18/2009 11/18/2009 12/01/2009 12/18/2009 12/18/2009 12/18/2009 12/18/2009 12/18/2009 12/18/2009 12/18/2009 12/18/2009 12/18/2009

1:08−mc−00511−PLF et al.(MA) (Entered: 11/12/2009)
114 Initial ORDER re management of Civil Action No. 09−1507. Signed by Judge Paul L. Friedman on November 12, 2009. Associated Cases: 1:08−mc−00511−PLF et al.(MA) (Entered: 11/12/2009)
115 ORDER that Civil Action No. 09−1507 is stayed to the same extent and for the same duration as the other cases consolidated under Misc. No. 08−0511. Signed by Judge Paul L. Friedman on November 12, 2009.Associated Cases: 1:08−mc−00511−PLF et al.(MA) (Entered: 11/12/2009)
116 Initial ORDER re management of Civil Action No. 09−1318. Signed by Judge Paul L. Friedman on November 12, 2009. Associated Cases: 1:08−mc−00511−PLF et al.(MA) (Entered: 11/12/2009)
117 ORDER that Civil Action No. 09−1318 is stayed to the same extent and for the same duration as the other cases consolidated under Misc. No. 08−0511. Signed by Judge Paul L. Friedman on November 12, 2009. Associated Cases: 1:08−mc−00511−PLF et al.(MA) (Entered: 11/12/2009)
Set/Reset Deadlines: Report of Morgan & Morgan's knowledge of and/or involvement with Mr. Gilbert's recruitment activities due by 11/25/2009. Associated Cases: 1:08−mc−00511−PLF et al.(mm, ) (Entered: 11/12/2009)
118 RESPONSE TO ORDER OF THE COURT re (26 in 1:09−cv−01422−PLF) Order, (Doc 113) filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Attachments: # 1 Exhibit 11/2/09 Fax to Court (letter and Declaration), # 2 Exhibit Email to cousnel re: Re Response to Strom letter)Associated Cases: 1:08−mc−00511−PLF et al.(Weinstein, Scott) (Entered: 11/12/2009)
119 NOTICE of Appearance by Jennifer I. Klar on behalf of IRIS L. MIZELL (Klar, Jennifer) (Entered: 11/18/2009)
120 NOTICE of Appearance by Reed Colfax on behalf of IRIS L. MIZELL (Colfax, Reed) (Entered: 11/18/2009)
121 NOTICE of Appearance by John Peter Relman on behalf of IRIS L. MIZELL (Relman, John) (Entered: 11/18/2009)
122 NOTICE of Appearance by Kindaka J. Sanders on behalf of ALL PLAINTIFFS (ks) (Entered: 12/01/2009)
123 NOTICE of Appearance by John Peter Relman on behalf of ANITTA MCINNIS (Relman, John) (Entered: 12/18/2009)
124 NOTICE of Appearance by John Peter Relman on behalf of CHARLES RODGERS (Relman, John) (Entered: 12/18/2009)
125 NOTICE of Appearance by John Peter Relman on behalf of ANNIE LEE THOMAS (Relman, John) (Entered: 12/18/2009)
126 NOTICE of Appearance by Jennifer I. Klar on behalf of ANITTA MCINNIS (Klar, Jennifer) (Entered: 12/18/2009)
127 NOTICE of Appearance by Jennifer I. Klar on behalf of CHARLES RODGERS (Klar, Jennifer) (Entered: 12/18/2009)
128 NOTICE of Appearance by Jennifer I. Klar on behalf of ANNIE LEE THOMAS (Klar, Jennifer) (Entered: 12/18/2009)
129 NOTICE of Appearance by Reed Colfax on behalf of ANITTA MCINNIS (Colfax, Reed) (Entered: 12/18/2009)
130 NOTICE of Appearance by Reed Colfax on behalf of CHARLES RODGERS (Colfax, Reed) (Entered: 12/18/2009)
131 NOTICE of Appearance by Reed Colfax on behalf of ANNIE LEE THOMAS (Colfax, Reed) (Entered: 12/18/2009)

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12/31/2009 12/31/2009 12/31/2009 01/28/2010 02/12/2010
02/12/2010 02/16/2010 03/01/2010 03/02/2010
03/18/2010
03/18/2010 03/25/2010 03/26/2010

132 NOTICE OF WITHDRAWAL OF APPEARANCE as to ANITTA MCINNIS, ANITTA MCINNIS. Attorney Andrew H. Marks; David E. Bell and Laurel Pyke Malson terminated. (Malson, Laurel) (Entered: 12/31/2009)
133 NOTICE OF WITHDRAWAL OF APPEARANCE as to CHARLES RODGERS. (Malson, Laurel) (Entered: 12/31/2009)
134 NOTICE OF WITHDRAWAL OF APPEARANCE as to ANNIE LEE THOMAS. (Malson, Laurel) (Entered: 12/31/2009)
MINUTE ORDER granting 108 certain plaintiffs' motion to withdraw their reply to the USDA's opposition to their motion to stay the class certification proceedings. Signed by Judge Paul L. Friedman on January 28, 2010. (MA) (Entered: 01/28/2010)
135 ORDER that the specified parties/counsel shall file supplemental briefs regarding defendant's motion to certify a class on or before March 5, 2010. The specified counsel shall appear before the Court for oral argument on the motion on March 9, 2010, at 2 p.m. Signed by Judge Paul L. Friedman on February 12, 2010. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01401−PLF, 1:09−cv−01422−PLF. (lcplf2) (Entered: 02/12/2010)
Set/Reset Deadlines/Hearings: Supplemental Briefs due by 3/5/2010. Motion Hearing set for 3/9/2010 02:00 PM in Courtroom 29A before Judge Paul L. Friedman. Associated Cases: 1:08−mc−00511−PLF et al.(zmm, ) (Entered: 02/16/2010)
136 RESPONSE TO ORDER OF THE COURT re Order on Motion to Withdraw filed by ALL PLAINTIFFS. (znmw, ) (Entered: 02/16/2010)
137 MOTION to Withdraw (51 in 1:08−mc−00511−PLF) MOTION to Certify Class by TOM VILSACK (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF(Ulrich, Tamara) (Entered: 03/01/2010)
MINUTE ORDER granting (137) Motion to Withdraw in case 1:08−mc−00511−PLF; granting (40) Motion to Withdraw in case 1:08−cv−02220−PLF; granting (21) Motion to Withdraw in case 1:09−cv−01019−PLF; granting (17) Motion to Withdraw in case 1:09−cv−01323−PLF; granting (33) Motion to Withdraw in case 1:09−cv−01422−PLF. The hearing scheduled for March 9, 2010 is CANCELLED. Signed by Judge Paul L. Friedman on March 2, 2010. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF(MA) (Entered: 03/02/2010)
MINUTE ORDER: Counsel for the plaintiffs and the defendant shall participate in a telephone conference with the Court at 2:30 p.m. on March 25, 2010. Andrew Marks, for the plaintiffs, and Michael Sitcov, for the defendant, will determine which members of counsel for the respective parties will participate in the conference. Mr. Marks and Mr. Sitcov will arrange for the conferencing−in of the various participants and will provide the Court with instructions on how to join the call. Signed by Judge Paul L. Friedman on March 18, 2010.Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF (MA) (Entered: 03/18/2010)
Set/Reset Hearings: Telephone Conference set for 3/25/2010 02:30 PM in Chambers before Judge Paul L. Friedman. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF(zmm, ) (Entered: 03/19/2010)
Minute Entry for proceedings held before Judge Paul L. Friedman: Telephone Conference held in chambers on teh record on 3/25/2010. (Court Reporter Linda Russo) Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF(zmm, ) (Entered: 03/26/2010)
138 Initial Order re Civil Action No. 10−0465. Signed by Judge Paul L. Friedman on March 26, 2010. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF (MA) (Entered: 03/26/2010)

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03/26/2010 04/13/2010
05/19/2010 05/21/2010 05/21/2010 05/21/2010 05/25/2010 05/25/2010 06/04/2010 06/04/2010

139 ORDER that this case is stayed to the same extent and for the same duration as the other cases consolidated under Misc. No. 08−0511. Signed by Judge Paul L. Friedman on March 26, 2010. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF (MA) (Entered: 03/26/2010)
140 TRANSCRIPT OF PROCEEDINGS before Judge Paul L. Friedman held on 3/25/10; Page Numbers: 1−15. Date of Issuance:4/13/10. Court Reporter/Transcriber Linda L Russo, Telephone number 202.354.3244, Court Reporter Email Address : lindalrusso@gmail.com.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 5/4/2010. Redacted Transcript Deadline set for 5/14/2010. Release of Transcript Restriction set for 7/12/2010.(Russo, Linda) (Entered: 04/13/2010)
146 MOTION to Intervene by BLACK FARMERS & AGRICULTURALISTS ASSOCIATION INCORPORATED (td, ) (Entered: 06/01/2010)
141 ORDER that Civil Action No. 10−0801 is consolidated with and will be coordinated with all other cases consolidated under Misc. No. 08−0511, In re Black Farmers Discrimination Litigation. Signed by Judge Paul L. Friedman on May 21, 2010.Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF(MA) (Entered: 05/21/2010)
142 ORDER that Civil Action No. 10−0801 is stayed to the same extent and for the same duration as the other cases consolidated under Misc. No. 08−0511. Signed by Judge Paul L. Friedman on May 21, 2010. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF(MA) (Entered: 05/21/2010)
143 NOTICE of Statement of Agreement to Conditions for Access to "5(g) List" by BLACK FARMERS DISCRIMINATION LITIGATION re 34 Order (Lott, Casey) (Entered: 05/21/2010)
144 ORDER that Civil Action No. 10−0839 is stayed to the same extent and for the same duration as the other cases consolidated under Misc. No. 08−0511. Signed by Judge Paul L. Friedman on May 25, 2010.Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00801−PLF(MA) (Entered: 05/25/2010)
145 ORDER that Civil Action No. 10−0839 is consolidated with and will be coordinated with all other cases consolidated under Misc. No. 08−0511. Signed by Judge Paul L. Friedman on May 25, 2010.Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00801−PLF(MA) (Entered: 05/25/2010)
147 ORDER that Civil Action No. 10−0737 is consolidated with and will be coordinated with all other cases consolidated under this Misc. No. 08−0511. Signed by Judge Paul L. Friedman on June 4, 2010. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00801−PLF(MA) (Entered: 06/04/2010)
148 ORDER that Civil Action No. 10−0737 is stayed to the same extent and for the same duration as the other cases consolidated under this Misc. No. 08−0511. Signed by Judge Paul L. Friedman on June 4, 2010. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00801−PLF(MA) (Entered: 06/04/2010)

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06/07/2010 06/11/2010 06/23/2010
06/23/2010
06/30/2010
06/30/2010
07/09/2010 07/29/2010
07/29/2010 08/02/2010
08/06/2010
08/17/2010

149 Memorandum in opposition to re 146 MOTION to Intervene filed by ALL PLAINTIFFS. (Lieberman, Michael) (Entered: 06/07/2010)
150 Memorandum in opposition to re 146 MOTION to Intervene filed by TOM VILSACK. (Ulrich, Tamara) (Entered: 06/11/2010)
151 ORDER that Civil Action No. 10−1026 is consolidated with and will be coordinated with all other cases consolidated under Misc. No. 08−0511. Signed by Judge Paul L. Friedman on June 22, 2010. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF(MA) (Entered: 06/23/2010)
152 ORDER that Civil Action No. 10−1026 is stayed to the same extent and for the same duration as the other cases consolidated under Misc. No. 08−0511. Signed by Judge Paul L. Friedman on June 22, 2010. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF(MA) (Entered: 06/23/2010)
153 ORDER that Civil Action No. 10−1053 is consolidated with and will be coordinated with all other cases consolidated under Misc. No. 08−0511. Signed by Judge Paul L. Friedman on June 30, 2010. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF(MA) (Entered: 06/30/2010)
154 ORDER that Civil Action No. 10−1053 is stayed to the same extent and for the same duration as the other cases consolidated under Misc. No. 08−0511. Signed by Judge Paul L. Friedman on June 30, 2010. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF(MA) (Entered: 06/30/2010)
155 NOTICE of Appearance by Dedrick Brittenum, Jr on behalf of BLACK FARMERS DISCRIMINATION LITIGATION Associated Cases: 1:08−mc−00511−PLF et al.(Brittenum, Dedrick) (Entered: 07/09/2010)
MINUTE ORDER: Counsel for the plaintiffs and for the defendant shall appear before the Court for a status conference on August 9, 2010, at 10 a.m. Signed by Judge Paul L. Friedman on July 29, 2010. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF. (lcplf2) (Entered: 07/29/2010)
Set/Reset Hearings: Status Conference set for 8/9/2010 10:00 AM in Courtroom 29A before Judge Paul L. Friedman. Associated Cases: 1:08−mc−00511−PLF et al.(zmm, ) (Entered: 07/30/2010)
MINUTE ORDER: The status conference scheduled for August 9, 2010, at 10 a.m. is hereby CANCELLED. Signed by Judge Paul L. Friedman on August 2, 2010. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF. (lcplf2) (Entered: 08/02/2010)
156 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 7/15/10., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TOM VILSACK served on 7/6/2010, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. TOM VILSACK served on 7/6/2010 (Attachments: # 1 Affidavit)(Hilliard, Robert) (Entered: 08/06/2010)
157 NOTICE of Statement of Agreement to Conditions for Access to "5(g) List" filed by Yaser Masood. (znmw, ) (Entered: 08/18/2010)

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02/11/2011 02/11/2011 02/11/2011
03/30/2011
04/01/2011 04/05/2011 04/05/2011 04/08/2011
04/13/2011

158 MOTION for Temporary Restraining Order by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support of Motion for Temporary Restraining Order, # 2 Exhibit A − BFAA Workshop Notice, # 3 Text of Proposed Order)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 02/11/2011)
159 NOTICE of Service by ALL PLAINTIFFS re (158 in 1:08−mc−00511−PLF) MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A − E−mail Exchange with Mr. Brittenum)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 02/11/2011)
160 MEMORANDUM OPINION AND ORDER denying Certain Plaintiffs' Motion for a Temporary Restraining Order, Docket No. 158 in Misc. No. 08−0511. Signed by Judge Paul L. Friedman on February 11, 2011. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF. (lcplf2) (Entered: 02/11/2011)
161 Unopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other Purposes by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support of Motion for Preliminary Approval, # 2 Exhibit 1 − Proposed Preliminary Approval Order, # 3 Exhibit 2 − Settlement Agreement, # 4 Exhibit 3 − Pigford Consent Decree, # 5 Exhibit 4 − Declaration of Richard Bithell, # 6 Exhibit 5 − Declaration of Katherine Kinsella and Associated Notice Materials, # 7 Exhibit 6 − Order of July 14, 2000, # 8 Exhibit 7 − Qualifications of Epiq Systems, Inc., # 9 Exhibit 8 − Qualifications of The McCammon Group, # 10 Exhibit 9 − Qualifications of Michael Lewis, # 11 Exhibit 10 − Proposed Ombudsman Order of Appointment, # 12 Exhibit 11 − Proposed Ombudsman Order of Reference, # 13 Exhibit 12 − Declaration of Andrew H. Marks, # 14 Exhibit 13 − Qualifications of Proposed Class Counsel)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 03/30/2011)
162 MOTION & Memorandum in Support by Certain Plaintiffs for Leave to File Second Amended Complaint (zmm, ) (Additional attachment(s) added on 4/5/2011: # 1 Exhibit, # 2 Text of Proposed Order) (zmm, ). (Entered: 04/05/2011)
MINUTE ORDER granting 162 Motion for Leave to File Second Amended Complaint Signed by Judge Paul L. Friedman on 4/5/2011. (zmm, ) (Entered: 04/05/2011)
163 AMENDED COMPLAINT against TOM VILSACK filed by ALL PLAINTIFFS.(td, ) (Entered: 04/05/2011)
164 REPLY re 161 Unopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other PurposesUnopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other PurposesUnopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other PurposesUnopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other PurposesUnopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other Purposes filed by EDWARD T. SCHAFER, TOM VILSACK. (Moore, Tamra) (Entered: 04/08/2011)
165 First MOTION for Extension of Time to File Response/Reply as to (19 in 1:10−cv−00737−PLF, 17 in 1:10−cv−00801−PLF, 50 in 1:09−cv−01422−PLF, 11 in 1:10−cv−01053−PLF, 57 in 1:08−cv−02220−PLF, 11 in 1:10−cv−01026−PLF, 161 in 1:08−mc−00511−PLF, 34 in 1:09−cv−01323−PLF, 38 in 1:09−cv−01019−PLF) Unopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other PurposesUnopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other PurposesUnopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other PurposesUnopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other PurposesUnopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other Purposes by CHARLIE EDWARD LATHAM (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:08−mc−00511−PLF et

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04/15/2011 04/15/2011 04/19/2011 04/29/2011 05/05/2011 05/13/2011
05/13/2011 05/13/2011 05/19/2011

al.(Martin, Precious) (Entered: 04/13/2011)
166 Memorandum in opposition to 165 Motion for Extension of Time filed by ALL PLAINTIFFS. Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) Modified to add link on 4/18/2011 (td, ). (Entered: 04/15/2011)
167 Memorandum in opposition to 165 motion for extension of timefiled by EDWARD T. SCHAFER, TOM VILSACK. (Moore, Tamra) Modified on 4/18/2011 (td, ). (Entered: 04/15/2011)
MINUTE ORDER denying Docket No. 165 in Misc. No. 08−0511, plaintiff Charles Latham's motion for an extension of time in which to respond to the pending motion for preliminary approval of a proposed class settlement. Signed by Judge Paul L. Friedman on April 19, 2011. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF (lcplf2). (Entered: 04/19/2011)
168 LETTER dated April 25, 2011, from Judge Paul L. Friedman to Andrew H. Marks, Esq., and Michael Sitcov, Esq., in re: proposed class settlement. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF. (lcplf2) (Entered: 04/29/2011)
169 Unopposed MOTION to Appoint Counsel as Interim Class Counsel by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support of Motion for Appointment of Interim Class Counsel, # 2 Text of Proposed Order Appointing Interim Class Counsel)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 05/05/2011)
170 NOTICE of Amendment of Exhibits by ALL PLAINTIFFS re (19 in 1:10−cv−00737−PLF, 17 in 1:10−cv−00801−PLF, 50 in 1:09−cv−01422−PLF, 11 in 1:10−cv−01053−PLF, 57 in 1:08−cv−02220−PLF, 11 in 1:10−cv−01026−PLF, 161 in 1:08−mc−00511−PLF, 10 in 1:08−cv−01513−PLF, 34 in 1:09−cv−01323−PLF, 38 in 1:09−cv−01019−PLF) Unopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other PurposesUnopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other PurposesUnopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other PurposesUnopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other PurposesUnopposed MOTION for Settlement and Preliminary Approval Thereof, Certification of a Rule 23(b)(1)(B) Class, and for Other Purposes (Attachments: # 1 Exhibit 1 (Revised), # 2 Exhibit 2 (Revised))Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 05/13/2011)
171 NOTICE by ALL PLAINTIFFS re (41 in 1:09−cv−01019−PLF, 60 in 1:08−cv−02220−PLF, 22 in 1:10−cv−00737−PLF, 168 in 1:08−mc−00511−PLF, 14 in 1:10−cv−01053−PLF, 53 in 1:09−cv−01422−PLF, 37 in 1:09−cv−01323−PLF, 14 in 1:10−cv−01026−PLF, 20 in 1:10−cv−00801−PLF, 13 in 1:08−cv−01513−PLF) Order, (Attachments: # 1 Exhibit − Response to April 25, 2011 Letter of Judge Paul L. Friedman)Associated Cases: 1:08−mc−00511−PLF et al.(Marks, Andrew) (Entered: 05/13/2011)
172 ORDER granting preliminary approval of settlement agreement, certifying a Rule 23(b)(1)(B) settlement class, and for other purposes. Final Approval Hearing set for 9/1/2011 @ 9:30 a.m. in Ceremonial Courtroom before Judge Paul L. Friedman. See Order for specifics. Signed by Judge Paul L. Friedman on 5/13/2011. (zmm, ) (Entered: 05/13/2011)
173 Joint MOTION for Order Revising Preliminary Approval Order and Memorandum in Support by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Text of Proposed Order)Associated Cases: 1:08−mc−00511−PLF et al.(Malson, Laurel) (Entered: 05/19/2011)

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05/20/2011 05/20/2011 05/23/2011 06/09/2011 06/15/2011 06/16/2011
06/17/2011
06/17/2011
08/01/2011

174 ORDER granting 173 Joint Motion to Revise Preliminary Approval Order. Signed by Judge Paul L. Friedman on 5/20/2011. (zmm, ) (Entered: 05/20/2011)
Set/Reset Deadlines: Written statements of objections to the proposed settlement agreement due by 8/12/2011. Any written response to a statement of objections due by 8/25/2011. (zmm, ) (Entered: 05/20/2011)
175 NOTICE of Class Counsel's Designation of Bank for Deposit of Interim Implementation Costs by ALL PLAINTIFFS Associated Cases: 1:08−mc−00511−PLF et al.(Marks, Andrew) (Entered: 05/23/2011)
176 Unopposed MOTION for Disbursement of Funds , Approve Certain Implementation Costs, and Approve Disbursal of Funds by ALL PLAINTIFFS (Attachments: # 1 Exhibit A − Notice Estimate, # 2 Exhibit B − Claims Administration Estimate, # 3 Text of Proposed Order Approving Payment of Interim Implementation Costs)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) Modified event title on 6/10/2011 (znmw, ). (Entered: 06/09/2011)
177 ORDER in case 1:08−mc−00511−PLF; granting 176 Motion for Approval of Certain Interim Settlement Implementation Costs and Disbursal of Funds. Signed by Judge Paul L. Friedman on 6/15/11. Relating to ALL CASES. Modified on 10/17/2011 to correct document number of motion granted in docket text (zmm, ). (Entered: 06/15/2011)
178 Unopposed MOTION to Amend/Correct (43 in 1:09−cv−01019−PLF, 39 in 1:09−cv−01323−PLF, 24 in 1:10−cv−00737−PLF, 170 in 1:08−mc−00511−PLF, 16 in 1:10−cv−01053−PLF, 15 in 1:08−cv−01513−PLF, 22 in 1:10−cv−00801−PLF, 62 in 1:08−cv−02220−PLF, 55 in 1:09−cv−01422−PLF, 16 in 1:10−cv−01026−PLF) Notice (Other), Notice (Other), Notice (Other), Notice (Other), Notice (Other) Claim Form, and Seek Preliminary Approval Thereof by ALL PLAINTIFFS (Attachments: # 1 Exhibit A − Amended Claim Form, # 2 Text of Proposed Order Preliminarily Approving Amended Claim Form)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 06/16/2011)
ORDER granting (178) class counsel's unopposed motion for preliminary approval of revised claim form. The Claim Form attached to the motion is preliminarily apparoved as part of the Settlement Agreement to which this Court has previously given its preliminary approval; granting (21) in case 1:08−cv−01513−PLF; granting (68) in case 1:08−cv−02220−PLF; granting (49) in case 1:09−cv−01019−PLF; granting (45) in case 1:09−cv−01323−PLF; granting (61) in case 1:09−cv−01422−PLF; granting (30) in case 1:10−cv−00737−PLF; granting (28) in case 1:10−cv−00801−PLF; granting (22) in case 1:10−cv−01026−PLF; granting (22) in case 1:10−cv−01053−PLF. Signed by Judge Paul L. Friedman on June 17, 2011. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF(MA) (Entered: 06/17/2011)
MINUTE ORDER denying as moot 46 motion for entry of proposed case management order, 57 motion for inquiry into use of 5(g) list, and 169 motion to appoint interim class counsel; denying as moot (14) Motion to Appoint Counsel in case 1:08−cv−01513−PLF; denying as moot (61) Motion to Appoint Counsel in case 1:08−cv−02220−PLF; denying as moot (42) Motion to Appoint Counsel in case 1:09−cv−01019−PLF; denying as moot (38) Motion to Appoint Counsel in case 1:09−cv−01323−PLF; denying as moot (54) Motion to Appoint Counsel in case 1:09−cv−01422−PLF; denying as moot (23) Motion to Appoint Counsel in case 1:10−cv−00737−PLF; denying as moot (21) Motion to Appoint Counsel in case 1:10−cv−00801−PLF; denying as moot (15) Motion to Appoint Counsel in case 1:10−cv−01026−PLF; denying as moot (15) Motion to Appoint Counsel in case 1:10−cv−01053−PLF Signed by Judge Paul L. Friedman on June 17, 2011. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF (MA) (Entered: 06/17/2011)
179 Consent MOTION for Order Approving the Appointment of Track A and B Neutrals by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A −

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08/08/2011
08/10/2011 08/10/2011 08/11/2011 08/12/2011 08/17/2011
08/17/2011 08/18/2011 08/18/2011
08/19/2011 08/23/2011
08/23/2011 08/24/2011 08/25/2011

Curricula Vitae for Neutrals)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 08/01/2011)
180 MOTION for Attorney Fees by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support of Motion for Award of Attorneys' Fees, # 2 Text of Proposed Order, # 3 Exhibit A − Counsel Participation Agreement, # 4 Exhibit B − Declaration of Professor Theodore Eisenberg)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 08/08/2011)
181 MOTION to Intervene by GREGORY K. CHESTNUT (znmw, ) (Entered: 08/11/2011)
182 NOTICE of Intent to Appear and Speak at Fairness Hearing by GREGORY K. CHESTNUT (znmw, ) (Entered: 08/11/2011)
183 NOTICE of Objection to Settlement by CHARLIE EDWARD LATHAM Associated Cases: 1:08−mc−00511−PLF et al.(Martin, Precious) (Entered: 08/11/2011)
184 MOTION to Appoint Counsel by BLACK FARMERS DISCRIMINATION LITIGATION (Toure, Faya) (Entered: 08/12/2011)
185 MEMORANDUM OPINION AND ORDER directing class counsel to file on or before August 25, 2011 a supplemental memorandum before the court can resolve the consent motion to approve the appointment of Track A and Track B neutrals. Signed by Judge Paul L. Friedman on August 17, 2011. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF (MA) (Entered: 08/17/2011)
Set/Reset Deadlines: Supplemental Brief by class counsel due by 8/25/2011. Associated Cases: 1:08−mc−00511−PLF et al.(zmm, ) (Entered: 08/18/2011)
186 MOTION to Stay re 180 MOTION for Attorney Fees Pending Defendant's Motion to Strike by TOM VILSACK (Attachments: # 1 Text of Proposed Order)(Ulrich, Tamara) (Entered: 08/18/2011)
187 Unopposed MOTION for Settlement and Final Approval Thereof by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support of Motion for Final Approval, # 2 Text of Proposed Order of Final Approval and Judgment, # 3 Exhibit A − Declaration of Katherine Kinsella, # 4 Exhibit B − Declaration of Nicole Hamann)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 08/18/2011)
188 REPLY re 187 Unopposed MOTION for Settlement and Final Approval Thereof filed by TOM VILSACK. (Moore, Tamra) (Entered: 08/19/2011)
MINUTE ORDER granting (186) defendant's Motion to Stay briefing on plaintiffs' motion for attorneys' fees pending defendant's motion to strike; defendant shall have until September 30, 2011 to file its motion to strike the declaration of of Theodore Eisenberg −− in case 1:08−mc−00511−PLF. Signed by Judge Paul L. Friedman on August 23, 2011. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF (MA) (Entered: 08/23/2011)
Set/Reset Deadlines: Defendant to file motion to strike declaration of Theodore Eisenberg by 9/30/2011. Associated Cases: 1:08−mc−00511−PLF et al.(zmm, ) (Entered: 08/23/2011)
189 Memorandum in opposition to re (181 in 1:08−mc−00511−PLF) MOTION to Intervene filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A − Chestnut Alabama State Court Complaint)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 08/24/2011)
190 RESPONSE to Objection to Settlement Agreement filed by TOM VILSACK. (Moore, Tamra) (Entered: 08/25/2011)

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08/25/2011
08/25/2011 08/25/2011 08/25/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011

191 REPLY to Objections filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1 − Atchison Objection, # 2 Exhibit 2 − Fouts Objection, # 3 Exhibit 3 − Howard−Taite Objection, # 4 Exhibit 4 − Jones Objection, # 5 Exhibit 5 − Woodard Objection, # 6 Exhibit 6 − Chestnut Objection, # 7 Exhibit 7 − Buckley Objection, # 8 Exhibit 8 − Stevens Objection, # 9 Exhibit 9 − Gilmore Objection, # 10 Exhibit 10 − Burrell Objection, # 11 Exhibit 11 − Morgan Objection, # 12 Exhibit 12 − Von Hart Objection, # 13 Exhibit 13 − Smith Objection, # 14 Exhibit 14 − Walker Objection, # 15 Exhibit 15 − Eddie Gray Objection, # 16 Exhibit 16 − Doris Gray Objection, # 17 Exhibit 17 − Paramore Objection, # 18 Exhibit 18 − Paige Objection, # 19 Exhibit 19 − Bryant Objection, # 20 Exhibit 20 − Boyd Objection, # 21 Exhibit 21 − Wingard Objection, # 22 Exhibit 22 − Robbalaa Objection, # 23 Exhibit 23 − Price Objection, # 24 Exhibit 24 − Bates Objection, # 25 Exhibit 25 − Rowser−Bey Objections, # 26 Exhibit 26 − Chart of Rowser−Bey Objections, # 27 Exhibit 27 − Marks E−mail to USDA IG (Aug. 16, 2011), # 28 Exhibit 28 − Matrix of Objector Procedural Deficiencies)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 08/25/2011)
192 SUPPLEMENTAL MEMORANDUM to re (25 in 1:08−cv−01513−PLF) Order, in Support of Consent Motion to Approve Appointment of Track A and Track B Neutral filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A − Curricula Vitae for BrownGreer Reviewers)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 08/25/2011)
193 NOTICE of Appearance by Alexander John Pires, Jr on behalf of JOHN BOYD (znmw, ) (Entered: 08/26/2011)
194 ENTERED IN ERROR (DUPLICATE OF 203 IN WHICH LEAVE TO FILE DOCUMENT WAS GRANTED BY JUDGE PAUL L. FRIEDMAN).....MOTION for Leave to Appear and Speak at Fairness Hearing by JOHN BOYD (Attachments: # 1 Text of Proposed Order)(znmw, ) Modified on 10/17/2011 (zmm, ). (Entered: 08/26/2011)
195 Memorandum in opposition to re 194 MOTION for Leave to Appear filed by TOM VILSACK. (Moore, Tamra) (Entered: 08/26/2011)
196 Memorandum in opposition to re (184 in 1:08−mc−00511−PLF) MOTION to Appoint Counsel filed by ALL PLAINTIFFS. Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 08/26/2011)
197 MEMORANDUM OPINION AND ORDER REGARDING FAIRNESS HEARING Signed by Judge Paul L. Friedman on 8/26/2011. (zmm, ) (Entered: 08/26/2011)
198 Memorandum in opposition to re (194 in 1:08−mc−00511−PLF) MOTION for Leave to Appear and Motion to Strike filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A − Declaration of James S. Farrin)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 08/26/2011)
203 Motion by John W. Boyd for Leave to Appear and Speak at Fairness Hearing of September 1, 2011. "Let this be filed." by Judge Paul L. Friedman (zmm, ) (Entered: 08/31/2011)
204 Letter to the Court from Ralph Paige requesting permission to speak at September 1, 2011 fairness hearing. "Let this be filed." by Judge Paul L. Friedman (zmm, ) (Entered: 08/31/2011)
205 Letter from William V. Paromore requesting permission to participate in September 1, 2011 fairness hearing. "Let this be filed." by Judge Paul L. Friedman (zmm, ) (Entered: 08/31/2011)
206 Letter to the Court from Eddie Lee Gray requesting permission to participate in September 1, 2011 fairness hearing. "Let this be filed." by Judge Paul L. Friedman (zmm, ) (Entered: 08/31/2011)
207 Letter to the Court from Joyce A. Smith requesting permission to participate in the September 1, 2011 fairness hearing. "Let this be filed." by Judge Paul L. Friedman (zmm, ) (Entered: 08/31/2011)

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08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/29/2011 08/29/2011
08/29/2011

208 Letter to the Court from Thomas Burrell requesting permission to participate in the September 1, 2011 fairness hearing. "Let this be filed." by Judge Paul L. Friedman (zmm, ) (Entered: 08/31/2011)
209 Letter from Gloria Davis Gilmore to lead class counsel regarding interest in participating in September 1, 2011 fairness hearing. "Let this be filed." by Judge Paul L. Friedman (zmm, ) (Entered: 08/31/2011)
210 Letter to the Court from Bernice C. Atchison requesting participation in September 1, 2011 fairness hearing. "Let this be filed." by Judge Paul L. Friedman (zmm, ) (Entered: 08/31/2011)
211 Letter to the Court from Dr. Dewayne L. Goldmon requesting permission to participate in September 1, 2011 fairness hearing. "Let this be filed." by Judge Paul L. Friedman (zmm, ) (Entered: 08/31/2011)
212 Letter from M. Murline Price to the Court requesting permission to participate in September 1, 2011 fairness hearing. "Let this be filed." by Judge Paul L. Friedman (zmm, ) (Entered: 08/31/2011)
214 Objection to Proposed Settlement Agreement by HENRY BARRIS, MUHAMMAD ROBBALAA. (zalg, ) (Entered: 09/01/2011)
215 Objection to Proposed Settlement Agreement by ADA C. BATES, AVA L. BATES, BRAD E. BATES, KERRY F. BATES, THEODORE B. BATES, Jr, KARLA K. BATES−ADAMS, TERRIE L. BATES−BEST. (zalg, ) (Entered: 09/01/2011)
216 Objection to Proposed Settlement Agreement by LILLIE M. WINGARD. (zalg, ) (Entered: 09/01/2011)
217 Objection to Proposed Settlement Agreement by DORIS GRAY. (zalg, ) (Entered: 09/01/2011)
218 Objection to Proposed Settlement Agreement by ROBERT E. WALKER. (zalg, ) (Entered: 09/01/2011)
219 Objection to Proposed Settlement Agreement by ERROL VON HART. (zalg, ) (Entered: 09/01/2011)
220 Objection to Proposed Settlement Agreement by DIAHANN C. STEVENS. (zalg, ) (Entered: 09/01/2011)
221 Objection to Proposed Settlement Agreement by BOOKER T. WOODARD. (zalg, ) (Entered: 09/01/2011)
222 Objection to Proposed Settlement Agreement by JUSTIN G. FOUTS, WILLA G. FOUTS. (zalg, ) (Entered: 09/01/2011)
199 SUPPLEMENTAL MEMORANDUM to re 181 MOTION to Intervene filed by GREGORY K. CHESTNUT. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Gaiser, Ronald) (Entered: 08/29/2011)
200 REPLY to opposition to motion re (194 in 1:08−mc−00511−PLF) MOTION for Leave to Appear and Speak at Fairness Hearing filed by JOHN BOYD. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)Associated Cases: 1:08−mc−00511−PLF et al.(Pires, Alexander) (Entered: 08/29/2011)
MINUTE ORDER: The Court wishes to clarify that the only issue that will be discussed at the upcoming hearing on September 1, 2011, is whether the terms of the proposed settlement agreement are fair, reasonable, and adequate for class members. That means, with respect to attorneys' fees, that the Court will hear argument only on whether the range of fees proposed in the agreement −− between 4.1% and 7.4% of a fixed dollar amount, as described in the agreement −− is fair and reasonable to class members. The Court will not hear argument on which amount of fees within that range is most appropriate, nor will it hear argument on how those fees might be divided among various attorneys or other individuals that are or have been involved in this litigation. For that reason, neither Gregory K. Chestnut nor his attorney will be permitted to raise Mr. Chestnut's concerns over the division of attorneys' fees at the hearing. Signed by Judge Paul L. Friedman on August 29, 2011. Associated Cases:

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 36 of 57

08/30/2011 08/30/2011 08/30/2011 08/31/2011
08/31/2011 09/01/2011 09/01/2011 09/20/2011
09/30/2011 10/07/2011 10/13/2011

1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF (lcplf2) (Entered: 08/29/2011)
201 ENTERED IN ERROR.....NOTICE of Appearance by Precious T. Martin, Sr on behalf of All Plaintiffs Associated Cases: 1:08−mc−00511−PLF et al.(Martin, Precious) Modified on 8/30/2011 (kb). (Entered: 08/30/2011)
NOTICE OF CORRECTED DOCKET ENTRY: re (34 in 1:10−cv−01053−PLF) Notice of Appearance was entered in error and counsel was instructed to refile said pleading. Document signature and filer not the same. Associated Cases: 1:08−mc−00511−PLF et al.(kb) (Entered: 08/30/2011)
202 RESPONSE to Submission by National Black Agricultural Alliance filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A − NBAA Submission)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 08/30/2011)
MINUTE ORDER: As the Court explained in its Minute Order of August 29, 2011, the only issue related to attorneys' fees that will be discussed at tomorrow's hearing is whether the proposed range of possible fees is fair and reasonable to class members. The matters raised by John Boyd in his motion for leave to speak at the hearing are not relevant to that issue. As a result, Mr. Boyd's motion for leave to appear and speak at the fairness hearing 194 is DENIED. Signed by Judge Paul L. Friedman on August 31, 2011. (lcplf2) (Entered: 08/31/2011)
213 REPLY to Response to Objection filed by BLACK FARMERS DISCRIMINATION LITIGATION. Associated Cases: 1:08−mc−00511−PLF et al.(Martin, Precious) (Entered: 08/31/2011)
223 NOTICE of Appearance by Faya R. Toure on behalf of All Plaintiffs Associated Cases: 1:08−mc−00511−PLF et al.(Toure, Faya) Modified filer on 9/2/2011. (ztnr, ) (Entered: 09/01/2011)
Minute Entry for proceedings held before Judge Paul L. Friedman: Fairness Hearing held on 9/1/2011. (Court Reporter Rebecca Stonestreet.) (zmm, ) (Entered: 09/01/2011)
224 TRANSCRIPT OF PROCEEDINGS before Judge Paul L. Friedman held on September 1, 2011; Page Numbers: 1 − 179. Date of Issuance:September 20, 2011. Court Reporter/Transcriber Rebecca Stonestreet, Telephone number 202−354−3249, Court Reporter Email Address : kingreporter2@verizon.net.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 10/11/2011. Redacted Transcript Deadline set for 10/21/2011. Release of Transcript Restriction set for 12/19/2011.(Stonestreet, Rebecca) (Entered: 09/20/2011)
225 MOTION to Strike 180 MOTION for Attorney Fees by TOM VILSACK (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Moore, Tamra) (Entered: 09/30/2011)
226 NOTICE of Revision of Proposed Claim Form by ALL PLAINTIFFS (Attachments: # 1 Exhibit A − Revised Claim Form)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 10/07/2011)
227 WITHDRAWN PER STIPULATION FILED 1/18/2012.....Second MOTION for Order Establish Distribution of Cases, Fees, and Appointment of Class Counsel by BLACK FARMERS DISCRIMINATION LITIGATION Associated Cases: 1:08−mc−00511−PLF et al.(Toure, Faya) Modified on 1/20/2012 (zmm, ). (Entered:

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 37 of 57

10/17/2011 10/25/2011 10/27/2011 10/27/2011
10/27/2011
11/10/2011 11/11/2011 11/15/2011

10/13/2011)
228 Memorandum in opposition to re (225 in 1:08−mc−00511−PLF) MOTION to Strike (180) MOTION for Attorney Fees filed by ALL PLAINTIFFS. Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) (Entered: 10/17/2011)
229 STATUS REPORT − First Quarterly Disbursement Report (Q3 2011) by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1 − Quarterly Disbursement Report Form (Q3 2011))Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF(Lieberman, Michael) (Entered: 10/25/2011)
230 REPLY to opposition to motion re 225 MOTION to Strike 180 MOTION for Attorney Fees filed by TOM VILSACK. (Moore, Tamra) (Entered: 10/27/2011)
231 ORDER and JUDGMENT granting (179) consent motion to approve appointment of the Track A and Track B neutral; granting (187) motion for final approval of the proposed class settlement in case 1:08−mc−00511−PLF; granting (22) Motion for Order; granting (26) Motion for Settlement in case 1:08−cv−01513−PLF; granting (69) Motion for Order; granting (73) Motion for Settlement in case 1:08−cv−02220−PLF; granting (50) Motion for Order; granting (54) Motion for Settlement in case 1:09−cv−01019−PLF; granting (46) Motion for Order; granting (50) Motion for Settlement in case 1:09−cv−01323−PLF; granting (62) Motion for Order; granting (66) Motion for Settlement in case 1:09−cv−01422−PLF; granting (31) Motion for Order; granting (36) Motion for Settlement in case 1:10−cv−00737−PLF; granting (33) Motion for Settlement; granting (29) Motion for Order in case 1:10−cv−00801−PLF; granting (27) Motion for Settlement; granting (23) Motion for Order in case 1:10−cv−01026−PLF; granting (23) Motion for Order; granting (27) Motion for Settlement in case 1:10−cv−01053−PLF. Signed by Judge Paul L. Friedman on October 27, 2011.Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF (MA) (Entered: 10/27/2011)
232 OPINION granting the motion for final approval of the proposed class settlement, granting the consent motion to approve appointment of the Track A and Track B neutral, and approving the revised Claim Form filed on October 7, 2011. An Order and Judgment consistent with this opinion shall issue this same day. Signed by Judge Paul L. Friedman on October 27, 2011. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF (MA) (Entered: 10/27/2011)
233 ORDER amending (232) Opinion approving the proposed class action settlement, to conform with (231) Order and Judgment. Signed by Judge Paul L. Friedman on November 10, 2011. Associated Cases: 1:08−mc−00511−PLF, 1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF (lcplf2) (Entered: 11/10/2011)
234 Unopposed Second MOTION for Order Approving Certain Interim Settlement Implementation Costs by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A − Epiq Invoice, # 3 Exhibit B − JAMS Invoice, # 4 Exhibit C − Liberty Bank Statement)Associated Cases: 1:08−mc−00511−PLF et al.(Lieberman, Michael) Modified on 11/14/2011 (td, ). (Entered: 11/11/2011)
235 ORDER granting (234) Unopposed Second Motion for Approval of Certain Interim Settlement Implementation Costsand Disbursal of Funds for the Payment of Such Costs in case 1:08−mc−00511−PLF, (44) in case 1:08−cv−01513−PLF; (91) in case 1:08−cv−02220−PLF; (72) in case 1:09−cv−01019−PLF; (68) in case 1:09−cv−01323−PLF; (84) in case 1:09−cv−01422−PLF; (54) in case 1:10−cv−00737−PLF;(51) in case 1:10−cv−00801−PLF; (45) in case 1:10−cv−01026−PLF; (45) in case 1:10−cv−01053−PLF. Signed by Judge Paul L. Friedman on 11/15/2011. Associated Cases: 1:08−mc−00511−PLF,

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 38 of 57

11/15/2011 11/15/2011 11/22/2011 11/23/2011 11/23/2011 11/23/2011 11/23/2011 12/02/2011
12/02/2011 12/06/2011 12/08/2011 12/09/2011 12/12/2011 12/13/2011

1:08−cv−01513−PLF, 1:08−cv−02220−PLF, 1:09−cv−01019−PLF, 1:09−cv−01323−PLF, 1:09−cv−01422−PLF, 1:10−cv−00737−PLF, 1:10−cv−00801−PLF, 1:10−cv−01026−PLF, 1:10−cv−01053−PLF(zmm, ) (Entered: 11/16/2011)
238 MOTION for Reconsideration re 231 Order on Motion for Order, Order on Motion for Settlement,,,,,,,,,, 232 Memorandum & Opinion,, by BLACK FARMERS DISCRIMINATION LITIGATION; "Let this be filed" by Judge Paul L. Friedman (td, ) (Entered: 11/23/2011)
239 MOTION for Reconsideration re 231 Order on Motion for Order, Order on Motion for Settlement,,,,,,,,,, 232 Memorandum & Opinion,, by BLACK FARMERS DISCRIMINATION LITIGATION; "Let this be filed" by Judge Paul L. Friedman (td, ) (Entered: 11/23/2011)
236 NOTICE OF APPEAL as to 231 Order on Motion for Order, Order on Motion for Settlement,,,,,,,,,, by BLACK FARMERS DISCRIMINATION LITIGATION. Filing fee $ 455. Fee Status: Fee Paid. Parties have been notified. (Martin, Precious) (Entered: 11/22/2011)
MINUTE ORDER. On or before December 12, 2011, lead class counsel Andrew H. Marks and Gregorio Francis shall respond to the motion to establish distribution of cases, fees, and appointment of class counsel (Docket No. 227). Signed by Judge Paul L. Friedman on November 23, 2011. (lcplf2) (Entered: 11/23/2011)
237 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date 11/22/11 re 236 Notice of Appeal. (td, ) (Entered: 11/23/2011)
240 WITHDRAWN PER STIPULATION FILED 1/18/2012.....MOTION to Clarify To Determine The Allocation Of Work And Payment Of Counsel by BLACK FARMERS DISCRIMINATION LITIGATION (Toure, Faya) Modified on 1/20/2012 (zmm, ). (Entered: 11/23/2011)
Set/Reset Deadlines: Response by lead class counsel to motion to establish distribution of cases, fees, and appointment of class counsel 227 due by 12/12/2011. (zmm, ) (Entered: 11/28/2011)
MINUTE ORDER. On or before December 19, 2011, the following attorneys shall respond to the Motion for Reconsideration as to the Exclusion of the BFAA (Docket No. 239): Gregorio A. Francis, Scott W. Weinstein, J. Andrew Meyer, A. Michael Espy, and Gary E. Mason. In addition, attorney Dedrick Brittenum Jr. shall separately respond to this motion; his response shall indicate whether he currently represents the BFAA and, if not, when his representation of the organization terminated and why he has not noted his withdrawal of termination on the docket. Counsel not listed in this Order need not respond. Signed by Judge Paul L. Friedman on December 2, 2011. (lcplf2) (Entered: 12/02/2011)
USCA Case Number 11−5334 for 236 Notice of Appeal filed by BLACK FARMERS DISCRIMINATION LITIGATION. (ls, ) (Entered: 12/02/2011)
Set/Reset Deadlines: Response to 239 Motion for Reconsideration due by 12/19/2011. (zmm, ) (Entered: 12/06/2011)
Minute Entry for proceedings held before Judge Paul L. Friedman: In Chambers Telephone Conference (off the record) held on 12/8/2011. (zmm, ) (Entered: 12/09/2011)
241 NOTICE Transcript Status Report by ALL PLAINTIFFS re 236 Notice of Appeal (Martin, Precious) (Entered: 12/09/2011)
242 Unopposed MOTION for Extension of Time to File Response/Reply as to 227 Second MOTION for Order Establish Distribution of Cases, Fees, and Appointment of Class Counsel by ALL PLAINTIFFS (Lieberman, Michael) (Entered: 12/12/2011)
MINUTE ORDER granting 242 lead class counsel's unopposed Motion for Extension of Time up to and including December 19, 2011 to respond to motion to establish distribution of cases, fees, and appointment of class counsel. Signed by Judge Paul L.

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12/14/2011 12/15/2011 12/15/2011
12/19/2011 12/20/2011 12/20/2011 12/28/2011
12/28/2011
12/28/2011
12/28/2011
12/29/2011 12/29/2011

Friedman on 12/13/11. (MA) (Entered: 12/13/2011)
243 MEMORANDUM OPINION AND ORDER denying 238 the BFAA's Motion for Reconsideration. Signed by Judge Paul L. Friedman on December 13, 2011. (MA) (Entered: 12/14/2011)
Set/Reset Deadlines: Response to motion to establish distribution of cases, fees, and appointment of class counsel due by 12/19/2011. (zmm, ) (Entered: 12/15/2011)
244 MEMORANDUM OPINION AND ORDER directing that copies of the "Notice of Appeal" prepared by Ms. Thedford Rowser−Bey and mailed to this Court and the Court of Appeals will not be accepted for filing, and that no further papers prepared or submitted by Ms. Rowser−Bey will be accepted for filing without prior leave of this Court. Signed by Judge Paul L. Friedman on December 14, 2011. (Attachments: # 1 Exhibit "Notice of Appeal", # 2 Exhibit "Pro Se Petition/Objection") (lcplf2) (Entered: 12/15/2011)
245 Memorandum in opposition to re 239 MOTION for Reconsideration re 231 Order on Motion for Order, Order on Motion for Settlement,,,,,,,,,, 232 Memorandum & Opinion,, filed by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A − Original Complaint, # 2 Exhibit B − Amended Complaint, # 3 Exhibit C − Second Amended Complaint, # 4 Exhibit D − ECF Service Notice)(Meyer, J) (Entered: 12/19/2011)
246 RESPONSE re 239 MOTION for Reconsideration as to Exclusion of BFFA re 231 Order on Motion for Order, Order on Motion for Settlement, 232 Memorandum & Opinion. (znmw, ) (Entered: 12/20/2011)
247 MOTION to Withdraw as Attorney filed by Dedrick Brittenum, Jr. (See Docket Entry 246 to view document). (znmw, ) (Entered: 12/20/2011)
248 ORDER ON ADMINISTRATION OF OATH TO TRACK A AND TRACK B NEUTRALS: Ordered that Marvin Johnson, Esq.; Homer LaRue, Esq; Hon. Richard Levie; and Charlotte Oman have fulfilled the oath requirement of § 201(g)(2) of the Claims Resolution Act, and may undertake the determination of claims in accordance with the Settlement Agreement and the applicable orders of this Court. Signed by Judge Paul L. Friedman on 12/28/2011. (zmm, ) (Entered: 12/28/2011)
249 ORDER ON ADMINISTRATION OF OATH TO TRACK A AND TRACK B NEUTRALS: Ordered that Hon. Bernetta Bush and Deborah Haude, Esq. have fulfilled the oath requirement of § 201(g)(2) of the Claims Resolution Act, and may undertake the determination of claims in accordance with the Settlement Agreement and the applicable orders of this Court. Signed by Judge Ruben Castillo for Judge Paul L. Friedman on 12/28/2011. (zmm, ) (Entered: 12/28/2011)
250 ORDER ON ADMINISTRATION OF OATH TO TRACK A AND TRACK B NEUTRALS: Ordered that Jay Folberg, Esq. and Lester Levy, Esq. have fulfilled the oath requirement of § 201(g)(2) of the Claims Resolution Act, and may undertake the determination of claims in accordance with the Settlement Agreement and the applicable orders of this Court. Signed by Judge Edward M. Chen for Judge Paul L. Friedman on 12/28/2011. (zmm, ) (Entered: 12/28/2011)
251 ORDER ON ADMINISTRATION OF OATH TO TRACK A AND TRACK B NEUTRALS: Ordered that Joan Grafstein, Esq. has fulfilled the oath requirement of § 201(g)(2) of the Claims Resolution Act, and may undertake the determination of claims in accordance with the Settlement Agreement and the applicable orders of this Court. Signed by Judge Steve C. Jones for Judge Paul L. Friedman on 12/22/2011. (zmm, ) (Entered: 12/28/2011)
254 NOTICE of Appearance by Paul A. Robinson, Jr on behalf of BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC., THOMAS BURRELL; "Let this be filed" by Judge Paul L. Friedman (td, ) Modified spelling on 1/10/2012 (td, ). (Entered: 01/09/2012)
255 SURREPLY to re 239 MOTION for Reconsideration re 231 Order on Motion for Order, Order on Motion for Settlement,,,,,,,,,, 232 Memorandum & Opinion,, filed by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC., THOMAS BURRELL; "Let this be filed" by Judge Paul L. Friedman (td, ) Modified spelling on 1/10/2012 (td, ). (Entered: 01/09/2012)

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 40 of 57

12/29/2011
12/30/2011
01/04/2012 01/06/2012
01/09/2012 01/10/2012 01/12/2012
01/13/2012 01/17/2012 01/17/2012 01/18/2012 01/20/2012 01/25/2012 01/30/2012

256 NOTICE OF APPEAL as to 231 Order on Motion for Order, Order on Motion for Settlement,,,,,,,,,, 232 Memorandum & Opinion,, 243 Order on Motion for Reconsideration by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC., THOMAS BURRELL. Fee Status: No Fee Paid. Parties have been notified; "Let this be filed" by Judge Paul L. Friedman (td, ) Modified spelling on 1/10/2012 (td, ). (Entered: 01/09/2012)
252 ORDER ON ADMINISTRATION OF OATH TO TRACK A AND TRACK B NEUTRALS: Ordered that Hon. Candace Cooper; Hon. June Lehrman; Hon. Sherman Smith; Hon. Greer Stroud; and Nancy Warren, Esq. have fulfilled the oath requirement of § 201(g)(2) of the Claims Resolution Act, and may undertake the determination of claims in accordance with the Settlement Agreement and the applicable orders of this Court. Signed by Judge S. James Otero for Judge Paul L. Friedman on 12/28/2011. (zmm, ) (Entered: 12/30/2011)
Minute Entry for proceedings held before Judge Paul L. Friedman: In−Chambers Telephone Conference held off the record on 1/4/2012 with lead class counsel and Ombudsman. (zmm, ) (Entered: 01/06/2012)
253 ORDER ON ADMINISTRATION OF OATH TO TRACK A AND TRACK B NEUTRALS: Ordered that Stacey Harrison, Esq.; Michael Lewis, Esq.; and Kahlill Palmer, Esq., have fulfilled the oath requirement of § 201(g)(2) of the Claims Resolution Act, and may undertake the determination of claims in accordance with the Settlement Agreement and the applicable orders of this Court. Signed by Judge Paul L. Friedman on 1/6/2012. (zmm, ) (Entered: 01/06/2012)
257 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Fee remains to be paid and another notice will be transmitted when the fee has been paid in the District Court USCA CASE NO: 11−5334 re 256 Notice of Appeal,. (td, ) (Entered: 01/09/2012)
DEPOSIT of Funds into registry of the Court in the amount of $1500.00, Receipt Number 4616045094. (represents the appeal bond) (dr) (Entered: 01/11/2012)
258 ORDER ON ADMINISTRATION OF OATH TO TRACK A AND TRACK B NEUTRALS: Ordered that the Hon. David Coar has fulfilled the oath requirement of § 201(g)(2) of the Claims Resolution Act, and may undertake the determination of claims in accordance with the Settlement Agreement and the applicable orders of this Court. Signed by Judge Ruben Castillo for Judge Paul L. Friedman on 1/11/2012. (zmm, ) (Entered: 01/12/2012)
259 OPINION AND ORDER denying 239 Motion for Reconsideration as to the exclusion of BFAA. Signed by Judge Paul L. Friedman on January 13, 2012. (MA) (Entered: 01/13/2012)
260 DESIGNATION of Record on Appeal by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. re 256 Notice of Appeal,USCA Case no. 11−5334; "Let this be filed" by Judge Paul L. Friedman (td, ) (Entered: 01/18/2012)
261 NOTICE of Statement of Issues on Appeal by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC.; "Let this be filed" by Judge Paul L. Friedman (td, ) (Entered: 01/18/2012)
262 STIPULATION to Withdraw Certain Motions by ALL PLAINTIFFS. (Toure, Faya) (Entered: 01/18/2012)
MINUTE ORDER: In view of 262 the stipulation filed on January 18, 2012 to withdraw the motions docketed as No. 227 and No. 240, the Court finds that the motion docketed as No. 184 is now moot. Signed by Judge Paul L. Friedman on January 20, 2012. (lcplf2) (Entered: 01/20/2012)
USCA Case Number 12−5019 for 256 Notice of Appeal, filed by THOMAS BURRELL, BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC.. (td, ) (Entered: 01/25/2012)
263 NOTICE of Filing of Supplemental Declaration of Katherine Kinsella Related to Court−Approved Notice Program by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1

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02/01/2012 02/03/2012 02/06/2012 02/06/2012
02/07/2012 02/10/2012 02/10/2012 02/10/2012 02/15/2012 02/28/2012
03/01/2012 03/05/2012 03/15/2012 03/16/2012 03/29/2012

− Kinsella Declaration)(Lieberman, Michael) (Entered: 01/30/2012)
264 STATUS REPORT − Second Quarterly Disbursement Report (Q4 2011) by ALL PLAINTIFFS. (Lieberman, Michael) (Entered: 02/01/2012)
265 MOTION for Reconsideration of Court's 1/13/2012 Order by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. "Let this be filed." Signed by Judge Paul L. Friedman on 2/3/2012. (zmm, ) Modified on 2/6/2012 (zmm, ). (Entered: 02/06/2012)
NOTICE OF CORRECTED DOCKET ENTRY: Text of 265 docket entry modified to reflect that Judge Paul L. Friedman signed the motion "Let this be filed." on 2/3/2012.(zmm, ) (Entered: 02/06/2012)
266 ORDER OF REFERENCE: APPOINTMENT OF OMBUDSMAN: Ordered that Stephen Carpenter is appointed as independent Ombudsman under the Settlement Agreement, effective February 6, 2012, and that Alva Waller is appointed Deputy Ombudsman, effective February 6, 2012, each of whom shall have all of the responsibilities and obligations required under the Settlement Agreement and the October 27, 2011 Order and Judgment of this Court. See Order for further specifics. Signed by Judge Paul L. Friedman on 2/6/2012. (zmm, ) (Entered: 02/06/2012)
267 NOTICE of Change of Firm Name for Gary E. Mason of Whitfield Bryson & Mason LLP by BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. (Mason, Gary) (Entered: 02/07/2012)
268 ENTERED IN ERROR.....MEMORANDUM OPINION AND ORDER denying 265 BFAA's Motion for Reconsideration. Signed by Judge Paul L. Friedman on February 10, 2011. (MA) Modified on 2/13/2012 (ztnr, ). (Entered: 02/10/2012)
DOCKET #268 ENTERED IN ERROR. PLEASE DISREGARD. (MA) (Entered: 02/10/2012)
269 MEMORANDUM OPINION AND ORDER denying 265 BFAA's Motion for Reconsideration. Signed by Judge Paul L. Friedman on February 10, 2012. (MA) (Entered: 02/10/2012)
270 Unopposed MOTION for Disbursement of Funds to Pay Implementation Costs to Federation of Southern Cooperatives/Land Assistance Fund by ALL PLAINTIFFS (Attachments: # 1 Exhibit − Federation Agreement)(Lieberman, Michael) (Entered: 02/15/2012)
271 ORDER granting 270 Unopposed Motion for Approval of Payment of Interim Settlement Implementation Costs to Federation of Southern Cooperatives/Land Assistance Fund. Ordered that, subject to review and approval of actual invoices by Lead Class Counsel, the payment by Class Counsel of up to $200,000.00 to the Federation of Southern Cooperatives/Land Assistance Fund ("Federation")for the purposes and in the manner set forth in the Agreement between the Federation and Lead Class Counsel dated as of January 9, 2012 is approved. Signed by Judge Paul L. Friedman on 2/24/2012. (zmm, ) (Entered: 02/28/2012)
MINUTE ORDER granting 247 motion to withdraw as attorney for the Black Farmers and Agriculturalists Association, Inc., filed by Dedrick Brittenum, Jr. Signed by Judge Paul L. Friedman on March 1, 2012. (lcplf2) (Entered: 03/01/2012)
272 ORDER denying 146 BFAA's Motion to Intervene Signed by Judge Paul L. Friedman on 3/5/2012. (zmm, ) (Entered: 03/05/2012)
273 MOTION for Extension of Time to supplement its motion to reconsider by THOMAS BURRELL; ("Let this be filed" by Judge Paul L. Friedman) (td, ) (Entered: 03/15/2012)
MINUTE ORDER denying as moot 273 the BFAA's motion for extension of time to file. See Docket No. 269. Signed by Judge Paul L. Friedman on March 16, 2012. (lcplf2) (Entered: 03/16/2012)
274 NOTICE OF WITHDRAWAL OF APPEARANCE as to ALL PLAINTIFFS. Attorney David E. Bell terminated. (Bell, David) (Entered: 03/29/2012)

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04/12/2012
04/20/2012 04/23/2012
04/24/2012
04/26/2012
04/26/2012 05/01/2012 05/04/2012 05/11/2012 05/11/2012 05/11/2012 05/24/2012 05/24/2012 05/24/2012 05/31/2012 06/05/2012

275 Unopposed MOTION for Release of Funds for Implementation Costs and Approval Thereof by ALL PLAINTIFFS (Attachments: # 1 Exhibit A − Statement of Epiq, # 2 Exhibit B − Statement of JAMS, # 3 Exhibit C − Liberty Bank Statement)(Lieberman, Michael) (Entered: 04/12/2012)
276 STATUS REPORT −− Class Counsel's Quarterly Disbursement Report (First Quarter 2012) by ALL PLAINTIFFS. (Marks, Andrew) (Entered: 04/20/2012)
277 ORDER ON ADMINISTRATION OF OATH TO TRACK A AND TRACK B NEUTRALS: Ordered that Barbara A. Reeves Neal, Esq., has fulfilled the oath requirement of § 201(g)(2) of the Claims Resolution Act, and may undertake the determination of claims in accordance with the Settlement Agreement and the applicable orders of this Court. Signed by Judge S. James Otero for Judge Paul L. Friedman on 04/17/2012. (lcplf2) (Entered: 04/23/2012)
278 ORDER granting 275 third unopposed motion for approval of certain interim settlement implementation costs and disbursal of funds for the payment of such costs. Signed by Judge Paul L. Friedman on April 24, 2012. (MA) Modified on 4/24/2012 to eliminate the extra header on the order. (jeb, ). (Entered: 04/24/2012)
279 ORDER ON ADMINISTRATION OF OATH TO TRACK A AND TRACK B NEUTRALS: Ordered that Michael G. Ornstil, Esq., has fulfilled the oath requirement of § 201(g)(2) of the Claims Resolution Act, and may undertake the determination of claims in accordance with the Settlement Agreement and the applicable orders of this Court. Signed by Judge Edward M. Chen for Judge Paul L. Friedman on 04/25/2012. (lcplf2) (Entered: 04/26/2012)
280 ORDER approving the Ombudsman's budget for the period of February 6, 2012 through May 31, 2012. Signed by Judge Paul L. Friedman on April 26, 2012. (lcplf2) (Entered: 04/26/2012)
282 MOTION for Leave to File Pigford Monitor Decision on Claim of Charlie Latham by ALL PLAINTIFFS (Lieberman, Michael) (Entered: 05/01/2012)
283 ORDER granting 282 Motion for Leave to File Pigford Monitor Decision on Claim of Charlie Latham. Signed by Judge Paul L. Friedman on May 4, 2012. (lcplf2) (Entered: 05/04/2012)
284 Letter from Judge Paul L. Friedman to the Network of Black Farm Groups and Advocates, dated April 30, 2012. (MA) (Entered: 05/11/2012)
285 Letter from Judge Paul L. Friedman to the Network of Black Farm Groups and Advocates, dated May 4, 2012. (MA) (Entered: 05/11/2012)
286 Letter from Judge Paul L. Friedman to the Rural Coalition, dated May 8, 2012. (MA) (Entered: 05/11/2012)
287 ORDER approving the Ombudsman's invoice for the period of February 2012. Signed by Judge Paul L. Friedman on May 24, 2012. (MA) (Entered: 05/24/2012)
288 ORDER approving the Ombudsman's invoice for the period of March 2012. Signed by Judge Paul L. Friedman on May 24, 2012. (MA) (Entered: 05/24/2012)
MINUTE ORDER: The funds deposited with the Court by Class Counsel pursuant to Docket No. 280 shall be maintained in the Court Registry. Signed by Judge Paul L. Friedman on May 24, 2012. (lcplf2) (Entered: 05/24/2012)
289 NOTICE OF SUPPLEMENTAL AUTHORITY by ALL PLAINTIFFS (Lieberman, Michael) (Entered: 05/31/2012)
290 MOTION in Support of Objection to Treatment and Petition to the Court for Arbitrator Review by Gertrude Rankin, Edward T. Miller, Dotty A. Rodgers, Tonia W. Jones, Sabrina Michelle Howze, Mary Ruth Howze, Phyllis A. McFarland, Frank S. Everett, John J. Jones, Florida Newell, Richard McCarty, Louis Nobles, Rannie Woulard, Patricia Everett, Terry D. Everett, Maxine Dear, Mildred A. Everett, Edna Holley, Arthur Jr. Howze, Velma Husband, Rita Peebles McCarty, Jeanie S. McDonald, Cleveland Thomas, Ella R. Turner, Carolyn L. Wallace, Genell Brown, Joyce Jean Jury, Annie M. Turner (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B)(Hilliard, Robert) (Entered: 06/05/2012)

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06/05/2012
06/25/2012 06/26/2012 07/03/2012 07/06/2012 07/06/2012 07/11/2012
07/11/2012 07/26/2012 08/17/2012 08/17/2012 08/31/2012 08/31/2012

291 MOTION to the court for arbitrator review by Genell Brown, Maxine Dear, Frank S. Everett, Mildred A. Everett, Patricia Everett, Terry D. Everett, Edna Holley, Arthur Jr. Howze, Mary Ruth Howze, Sabrina Michelle Howze, Velma Husband, John J. Jones, Tonia W. Jones, Joyce Jean Jury, Richard McCarty, Rita Peebles McCarty, Jeanie S. McDonald, Phyllis A. McFarland, Edward T. Miller, Florida Newell, Louis Nobles, Gertrude Rankin, Dotty A. Rodgers, Cleveland Thomas, Annie M. Turner, Ella R. Turner, Carolyn L. Wallace, Rannie Woulard; (See docket entry no. 290 to view document) (td, ) (Entered: 06/06/2012)
292 MOTION for Temporary Injunction Order, MOTION for Temporary Restraining Order by ARTIS MARK, JR; ("Let this be filed" by Judge Paul L. Friedman signed 6/21/12) (td, ) (Entered: 06/26/2012)
293 ORDER that the Ombudsman's invoice for the period of April 2012 is approved. Signed by Judge Paul L. Friedman on June 26, 2012. (MA) (Entered: 06/26/2012)
294 ORDER approving the Ombudsman's budget for the period of June 1, 2012 through August 31, 2012. Signed by Judge Paul L. Friedman on July 3, 2012. (lcplf2) (Entered: 07/03/2012)
295 NOTICE OF WITHDRAWAL OF APPEARANCE as to TOM J. VILSACK. Attorney Rachel J. Hines and Tamara Lynn Ulrich terminated. (Ulrich, Tamara) (Entered: 07/06/2012)
296 Unopposed MOTION for Release of Funds for Interim Implementation Costs by ALL PLAINTIFFS (Attachments: # 1 Exhibit A − Epiq Invoice, # 2 Exhibit B − JAMS Invoice, # 3 Exhibit C − Liberty Bank Statement)(Lieberman, Michael) (Entered: 07/06/2012)
297 ORDER granting 296 Unopposed Fourth Motion for Approval of Certain Interim Settlement Implementation Costs and Disbursal of Funds for the Payment of Such Costs. Ordered that subject to review and approval of actual invoices by Lead Class Counsel, the payment by Class Counsel of up to Five Million Dollars ($5,000,000.00) to Epiq System, Inc. and JAMS for purposes of implementing the Settlement Agreement is hereby approved; and it is further ordered that pursuant to Section IV.F of the Settlement Agreement, the Defendant shall within twenty (20) days of the date of this Order provide the U. S. Department of the Treasury with all necessary forms and documentation to direct a payment in the amount of Five Million Dollars ($5,000,000.00) to Account No. 2408503 ("Designated Account") in the name of Black Farmers Discrimination Litigation Settlement Implementation Costs DC IOLTA Account at Liberty Bank & Trust in New Orleans.. Signed by Judge Paul L. Friedman on 7/11/2012. (zmm, ) (Entered: 07/11/2012)
298 MEMORANDUM OPINION AND ORDER denying 181 Motion to Intervene by Gregory K. Chestnut. Signed by Judge Paul L. Friedman on July 11, 2012. (lcplf2) (Entered: 07/11/2012)
299 ORDER of USCA as to 236 Notice of Appeal to DC Circuit Court filed by BLACK FARMERS DISCRIMINATION LITIGATION ; USCA ORDER on the motion to dismiss consolidated appeals be granted; The appeal of the Black Farmers and Agriculturalists Association, Inc. is also dismissed. USCA Case Number 11−5326. (md, ) (Entered: 07/27/2012)
300 MOTION to Alter Judgment as to 231 Order on Motion for Order, Order on Motion for Settlement,,,,,,,,,, by ALL PLAINTIFFS (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Lieberman, Michael) (Entered: 08/17/2012)
301 RESPONSE re 300 MOTION to Alter Judgment as to 231 Order on Motion for Order, Order on Motion for Settlement,,,,,,,,,, filed by TOM J. VILSACK. (Moore, Tamra) (Entered: 08/17/2012)
302 RESPONSE re 300 MOTION to Alter Judgment as to 231 Order on Motion for Order, Order on Motion for Settlement,,,,,,,,,, filed by TOM J. VILSACK. (Moore, Tamra) (Entered: 08/31/2012)
303 STATUS REPORT − Quarterly Disbursement Report for 2nd Quarter of 2012 by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1 − Quarterly Disbursement Reporting Form (Q2 2012))(Lieberman, Michael) (Entered: 08/31/2012)

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09/14/2012 09/24/2012 09/24/2012 10/02/2012 10/05/2012 10/05/2012 10/08/2012 10/08/2012 10/09/2012 10/15/2012
10/15/2012
10/16/2012 10/22/2012 10/23/2012 10/26/2012
10/29/2012

304 SETTLEMENT ORDER granting 300 Unopposed Motion to Amend Final Order and Judgment; amending 231 Order and Judgment entered 10/27/2011. Signed by Judge Paul L. Friedman on 9/14/2012. (zmm, ) (Entered: 09/14/2012)
305 NOTICE of Superseding Motion by ALL PLAINTIFFS re 180 MOTION for Attorney Fees (Lieberman, Michael) (Entered: 09/24/2012)
306 MOTION for Attorney Fees (Updated) by ALL PLAINTIFFS (Attachments: # 1 Memorandum in Support of Updated Motion for Attorneys' Fees, # 2 Text of Proposed Order, # 3 Exhibit A − Counsel Participation Agreement)(Lieberman, Michael) (Entered: 09/24/2012)
307 ORDER that the Ombudman's invoice for the period of May 2012 is approved. Signed by Judge Paul L. Friedman on October 2, 2012. (MA) (Entered: 10/02/2012)
308 MOTION for Extension of Time to File Response/Reply as to 306 MOTION for Attorney Fees (Updated) by TOM J. VILSACK (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 10/05/2012)
309 MOTION for Leave to File Response to Class Counsel's Updated and Original Motions for Award of Attorneys' Fees and For Evidentiary Hearing by JOHN BOYD (Pires, Alexander). Added MOTION for Hearing on 10/9/2012 (td, ). (Entered: 10/05/2012)
310 Memorandum in opposition to re 308 MOTION for Extension of Time to File Response/Reply as to 306 MOTION for Attorney Fees (Updated) filed by ALL PLAINTIFFS. (Lieberman, Michael) (Entered: 10/08/2012)
312 MOTION for immediate scheduling conference by ALL PLAINTIFFS; (See docket entry no. 310 to view document) (td, ) (Entered: 10/09/2012)
311 RESPONSE re 308 MOTION for Extension of Time to File Response/Reply as to 306 MOTION for Attorney Fees (Updated) filed by TOM J. VILSACK. (Moore, Tamra) (Entered: 10/09/2012)
MINUTE ORDER: Having considered defendant's motion and class counsels' opposition, and finding good cause for the request for an extension of time, the Court grants 308 defendant's motion for extension of time up to and including november 9, 2012 to respond to plaintiffs' updated motion for attorneys' fees and expenses. Signed by Judge Paul L. Friedman on October 15, 2012. (MA) (Entered: 10/15/2012)
313 MANDATE of USCA (certified copy) as to 236 Notice of Appeal to DC Circuit Court filed by BLACK FARMERS DISCRIMINATION LITIGATION, 256 Notice of Appeal, filed by THOMAS BURRELL, BLACK FARMERS AND AGRICULTURALISTS ASSOCIATION, INC. ; ORDERED that the amended motion to exceed the page limits be granted; FURTHER ORDERED that the motion to dismiss be granted. USCA Case Number 11−5326. (md, ) (Entered: 10/17/2012)
Set/Reset Deadlines: Defendant's response to updated motion for attorneys' fees and expenses due by 11/9/2012. (zmm, ) (Entered: 10/16/2012)
314 Memorandum in opposition to re 309 MOTION for Leave to File Response to Class Counsel's Updated and Original Motions for Award of Attorneys' Fees and For Evidentiary Hearing MOTION for Hearing filed by ALL PLAINTIFFS. (Lieberman, Michael) (Entered: 10/22/2012)
NOTICE OF ERROR re 314 Memorandum in Opposition; emailed to mlieberman@crowell.com, cc'd 51 associated attorneys −− The PDF file you docketed contained errors: 1. For future filings, your electronic signature should be on any document that you electronically file (td, ) (Entered: 10/23/2012)
315 REPLY to opposition to motion re 309 MOTION for Leave to File Response to Class Counsel's Updated and Original Motions for Award of Attorneys' Fees and For Evidentiary Hearing MOTION for Hearing filed by JOHN BOYD. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F)(Pires, Alexander) (Entered: 10/26/2012)
316 NOTICE to the Court Regarding Document #315 by JOHN BOYD re 315 Reply to opposition to Motion, 314 Memorandum in Opposition, (Pires, Alexander) (Entered:

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11/01/2012 11/02/2012 11/07/2012 11/07/2012 11/08/2012 11/09/2012 11/19/2012 11/19/2012
11/26/2012 11/26/2012
12/04/2012 12/04/2012 12/07/2012
12/14/2012
12/20/2012 12/21/2012

10/29/2012)
317 ENTERED IN ERROR.....NOTICE of Appearance by Jesse Strauss on behalf of Adam J Segal (Strauss, Jesse) Modified on 11/2/2012 (ztnr, ). (Entered: 11/01/2012)
NOTICE OF CORRECTED DOCKET ENTRY: 317 Notice of Appearance was entered in error as no such party. Motion to Intervene and Notice of Appearance should be emailed to dcd_cmecf@dcd.uscourts.gov. (ztnr, ) (Entered: 11/02/2012)
318 MOTION to Take Judicial Notice of Order of Circuit Court of Dallas County, Alabama by GREGORY K. CHESTNUT (Attachments: # 1 Exhibit Exhibit A)(Gaiser, Ronald) (Entered: 11/07/2012)
319 OMBUDSMAN REPORT regarding the implementation of the settlement agreement through September 30, 2012. (zmm, ) (Entered: 11/07/2012)
320 MOTION to Intervene by ADAM J. SEGAL (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(td, ) (Entered: 11/08/2012)
321 RESPONSE re 306 MOTION for Attorney Fees (Updated) filed by TOM J. VILSACK. (Moore, Tamra) (Entered: 11/09/2012)
322 Unopposed MOTION for Extension of Time to File Response/Reply to Defendant's Response to Class Counsel's Updated Motion for an Award of Attorneys' Fees and Expenses by ALL PLAINTIFFS (Lieberman, Michael) (Entered: 11/19/2012)
323 ORDER granting 322 Class Counsel's Unopposed Motion for Extension of Time to File Reply. Ordered that Class Counsel shall have until Monday, November 26, 2012 to file their reply to Defendant's response to Class Counsel's Updated Motion for an Award of Attorneys' Fees and Expenses (Docket No. 321). Signed by Judge Paul L. Friedman on 11/19/2012. (zmm, ) (Entered: 11/20/2012)
324 Memorandum in opposition to re 320 MOTION to Intervene of Adam J. Segal filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Marks, Andrew) (Entered: 11/26/2012)
325 RESPONSE re 306 MOTION for Attorney Fees (Updated) for Award of Attorneys' Fees and Expenses filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Attachments: # 1 Exhibit A (Farrin Declaration), # 2 Exhibit B (Coe Declaration), # 3 Exhibit C (Sanchez Declaration))(Marks, Andrew) (Entered: 11/26/2012)
326 ORDER approving the Ombudsman's budget for the period of September 1, 2012 through February 28, 2013. Signed by Judge Paul L. Friedman on December 4, 2012. (lcplf2) (Entered: 12/04/2012)
327 REPLY to opposition to motion re 320 MOTION to Intervene filed by ADAM J. SEGAL. (Strauss, Jesse) (Entered: 12/04/2012)
328 MEMORANDUM OPINION that the Court will decide the Motion for Award of Attorneys' Fees and Expenses based on the papers that have been filed and intends to issue a decision in January 2013. Signed by Judge Paul L. Friedman on December 7, 2012. (MA) (Entered: 12/07/2012)
329 Unopposed MOTION for Release of Funds for Interim Implementation Costs by ALL PLAINTIFFS (Attachments: # 1 Exhibit A − Epiq Invoices, # 2 Exhibit B − JAMS Invoices, # 3 Exhibit C − Liberty Bank Statement)(Lieberman, Michael) (Entered: 12/14/2012)
330 ORDER approving the Ombudsman's invoice for the period of June 2012. Signed by Judge Paul L. Friedman on December 20, 2012. (MA) (Entered: 12/20/2012)
331 ORDER granting 329 Unopposed Fifth Motion for Approval of Certain Interim Settlement Implementation Costs and Disbursal of Funds for the Payment of Such Costs. Ordered that, subject to review and approval of actual invoices by Lead Class Counsel, the payment by Class Counsel of up to Two Million Dollars (2,000,000.00) to Epiq System, Inc. and JAMS for purposes of implementing the Settlement Agreement is hereby approved. See Order for further specifics. Signed by Judge Paul L. Friedman on 12/20/2012. (zmm, ) (Entered: 12/21/2012)

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12/21/2012 12/27/2012 12/27/2012 01/10/2013
01/22/2013 01/22/2013 01/22/2013 01/22/2013 01/23/2013 01/25/2013
01/28/2013 01/29/2013
01/29/2013 01/29/2013 02/12/2013 02/14/2013 02/25/2013

332 MOTION for Leave to File Surreply To Segal Motion To Intervene by ALL PLAINTIFFS (Attachments: # 1 Exhibit − Proposed Surreply To Segal Motion To Intervene, # 2 Text of Proposed Order)(Malson, Laurel) (Entered: 12/21/2012)
MINUTE ORDER granting 332 plaintiffs' motion for leave to file surreply. The Clerk is directed to enter the proposed surreply attached to 332 . Signed by Judge Paul L. Friedman on December 27, 2012. (lcplf1) (Entered: 12/27/2012)
333 SURREPLY to re 320 MOTION to Intervene filed by ALL PLAINTIFFS. (td, ) (Entered: 12/28/2012)
334 LEAVE TO FILE DENIED as to Motion for Interpleader filed by Patricia Robinson. Signed by Judge Paul L. Friedman on 1/10/13. This document is unavailable as the Court denied its filing. (Forwarding address is not available) (td, ) (Entered: 01/11/2013)
335 STATUS REPORT containing Amended Q2 2012 Quarterly Disbursement Report by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A − Q2 2012 Quarterly Disbursement Reporting Form (Amended))(Lieberman, Michael) (Entered: 01/22/2013)
336 STATUS REPORT containing Q3 2012 Quarterly Disbursement Report by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A − Q3 2012 Quarterly Disbursement Report)(Lieberman, Michael) (Entered: 01/22/2013)
337 STATUS REPORT containing Q4 2012 Quarterly Disbursement Report by ALL PLAINTIFFS. (Attachments: # 1 Exhibit A − Q4 2012 Quarterly Disbursement Reporting Form)(Lieberman, Michael) (Entered: 01/22/2013)
339 LEAVE TO FILE DENIED as to Motion for Interpleader by Roosevelt W. Lewis. Signed by Judge Paul L. Friedman on 1/22/13. This document is unavailable as the Court denied its filing. (td, ) (Entered: 01/24/2013)
338 Unopposed MOTION for Order Designating Settlement Fund as a Qualified Settlement Fund Pursuant to 26 U.S.C. 468B by ALL PLAINTIFFS (Attachments: # 1 Text of Proposed Order)(Lieberman, Michael) (Entered: 01/23/2013)
340 ORDER approving qualified settlement fund; granting 338 Unopposed Motion for Order Designating Settlement Fund as a Qualified Settlement Fund Pursuant to 26 U.S.C. § 468B. Signed by Judge Paul L. Friedman on 1/25/2013. (zmm, ) (Entered: 01/25/2013)
341 MOTION to Modify Final Order and Judgment by ALL PLAINTIFFS (Attachments: # 1 Declaration of Jennifer Hong, # 2 Text of Proposed Order)(Lieberman, Michael) Modified on 1/29/2013 to correct event (jf, ). (Entered: 01/28/2013)
342 OPINION AND ORDER denying 309 John W. Boyd's motion for leave to file a response; denying 309 John W. Boyd's Motion for evidentiary hearing; denying 320 Adam J. Segal's Motion to Intervene. Signed by Judge Paul L. Friedman on January 29, 2013. (MA) (Entered: 01/29/2013)
343 MEMORANDUM OPINION AND ORDER denying 290 291 Motion to participate in the claims resolution process established by the settlement agreement. Signed by Judge Paul L. Friedman on January 29, 2013. (MA) (Entered: 01/29/2013)
344 MEMORANDUM OPINION AND ORDER denying 292 Motion for temporary injunction and/or restraining order. Signed by Judge Paul L. Friedman on January 29, 2013. (MA) (Entered: 01/29/2013)
345 NOTICE of Change of Address by Andrew H. Marks (Marks, Andrew) (Entered: 02/12/2013)
346 ORDER granting 341 Motion for Further Modification of Final Order and Judgment. See Order for specifics. Signed by Judge Paul L. Friedman on 2/14/2013. (zmm, ) (Entered: 02/14/2013)
347 ORDER approving the Ombudsman's invoice for the perod of July 2012. Signed by Judge Paul L. Friedman on February 25, 2013. (MA). (Entered: 02/25/2013)

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03/19/2013
03/19/2013
03/27/2013 03/27/2013 04/02/2013 04/03/2013 04/17/2013 05/01/2013 05/07/2013 05/07/2013 05/24/2013 05/24/2013 05/24/2013 05/24/2013 05/24/2013 05/24/2013 05/28/2013
05/29/2013 05/31/2013

MINUTE ORDER denying without prejudice 318 Motion to Take Judicial Notice of Order. There is no matter pending before the Court necessitating judicial notice of this Order. Signed by Judge Paul L. Friedman on March 19, 2013. (MA) (Entered: 03/19/2013)
MINUTE ORDER denying as moot Docket Nos. 180, 225, and 312. Docket No. 180 has been superseded by an updated motion. Docket No. 225 relates to an exhibit not included in that updated motion and therefore is no longer relevant. Docket No. 312 relates to a scheduling dispute that has been resolved. Signed by Judge Paul L. Friedman on March 19, 2013. (MA) (Entered: 03/19/2013)
DEPOSIT of Funds in the amount of $ 577,420.00, Receipt Number 4616055245 from Crowell Morning LLP. (rdj) (Entered: 03/28/2013)
DEPOSIT of Funds in the amount of $ 374,700.00, Receipt Number 4616055246 from Crowell Morning LLP. (rdj) (Entered: 03/28/2013)
348 ORDER approving the Ombudsman's invoice for the period of August 2012. Signed by Judge Paul L. Friedman on April 2, 2013. (MA) (Entered: 04/02/2013)
349 MOTION to Participate in Claims Process filed by Leon Pierre "Let this be Filed" Signed by Judge Paul L. Friedman on 4/3/2013. (Attachments: # 1 Exhibit)(zmm, ) (Entered: 04/05/2013)
350 ORDER approving the Ombudsman's invoice for the period of September 2012. Signed by Judge Paul L. Friedman on April 17, 2013. (lcplf2) (Entered: 04/17/2013)
352 STATUS REPORT Containing Quarterly Disbursement Report for Q1 2013 by ALL PLAINTIFFS. (Attachments: # 1 Exhibit 1 − Quarterly Disbursement Reporting Form for Q1 2013)(Lieberman, Michael) (Entered: 05/01/2013)
353 MEMORANDUM OPINION AND ORDER denying 349 Mr. Pierre's motion to participate in the claims resolution process. Signed by Judge Paul L. Friedman on May 7, 2013. (MA) (Entered: 05/07/2013)
354 ORDER approving the Ombudsman's invoice for the period of October 2012. Signed by Judge Paul L. Friedman on May 7, 2013. (MA) (Entered: 05/07/2013)
355 ORDER approving the Ombudsman's invoice for the period of November 2012. Signed by Judge Paul L. Friedman on May 24, 2013. (MA) (Entered: 05/24/2013)
356 ORDER approving the Ombudsman's invoice for the period December 2012. Signed by Judge Paul L. Friedman on May 24, 2013. (MA) (Entered: 05/24/2013)
357 ORDER approving the Ombudsman's invoice for the period of January 2013. Signed by Judge Paul L. Friedman on May 24, 2013. (MA) (Entered: 05/24/2013)
358 ORDER approving the Ombudsman's invoice for the period of February 2013. Signed by Judge Paul L. Friedman on May 24, 2013. (MA) (Entered: 05/24/2013)
359 ORDER approving the Ombudsman's proposed budget for the period of March 1, 2013 through August 31, 2013. Signed by Judge Paul L. Friedman on May 24, 2013. (MA) (Entered: 05/24/2013)
360 MOTION for Order Modifying Final Order and Judgment by ALL PLAINTIFFS (Lieberman, Michael) (Entered: 05/24/2013)
NOTICE OF ERROR re 360 Motion for Order; emailed to mlieberman@crowell.com, cc'd 53 associated attorneys −− The PDF file you docketed contained errors: 1. As an FYI, the electronic signature must also be one of signing signatures on the document(s). (td, ) (Entered: 05/28/2013)
361 Memorandum in opposition to re 360 MOTION for Order Modifying Final Order and Judgment filed by THOMAS JAMES VILSACK. (Moore, Tamra) (Entered: 05/29/2013)
362 REPLY to opposition to motion re 360 MOTION for Order Modifying Final Order and Judgment filed by ALL PLAINTIFFS. (Marks, Andrew) (Entered: 05/31/2013)

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06/06/2013 06/06/2013 06/07/2013 06/21/2013 07/08/2013 07/08/2013 07/11/2013 07/11/2013 07/24/2013 07/31/2013
08/05/2013 08/05/2013 08/06/2013 08/12/2013 08/13/2013
08/15/2013
08/19/2013 08/23/2013

363 ORDER approving the Ombudsman's invoice for the period of March 2013. Signed by Judge Paul L. Friedman on June 6, 2013. (MA) (Entered: 06/06/2013)
364 ORDER approving the Ombudsman's invoice for the period of April 2013. Signed by Judge Paul L. Friedman on June 6, 2013. (MA) (Entered: 06/06/2013)
365 SURREPLY to re 360 MOTION for Order Modifying Final Order and Judgment filed by THOMAS JAMES VILSACK. (Moore, Tamra) (Entered: 06/07/2013)
366 MEMORANDUM OPINION AND ORDER denying 360 motion to further modify final order and judgment. Signed by Judge Paul L. Friedman on June 21, 2013. (MA) (Entered: 06/21/2013)
367 STATUS REPORT Regarding Projected Timeline for Completion of Claims Process by ALL PLAINTIFFS. (Marks, Andrew) (Entered: 07/08/2013)
368 SUPPLEMENTAL MEMORANDUM to re 306 MOTION for Attorney Fees (Updated) filed by ALL PLAINTIFFS. (Attachments: # 1 Declaration of James Scott Farrin, # 2 Declaration of Gregorio A. Francis)(Marks, Andrew) (Entered: 07/08/2013)
369 ORDER granting 306 class counsel's updated motion for an award of attorneys' fees and expenses. Signed by Judge Paul L. Friedman on July 11, 2013. (MA) (Entered: 07/11/2013)
370 OPINION granting class counsel's updated motion for an award of attorneys' fees and expenses. An order consistent with this opinion will issue this same day. Signed by Judge Paul L. Friedman on July 11, 2013. (MA) (Entered: 07/11/2013)
371 STATUS REPORT Containing Quarterly Disbursement Report for Q2 2013 by ALL PLAINTIFFS. (Attachments: # 1 Exhibit − Quarterly Disbursement Reporting Form for Q2 2013)(Marks, Andrew) (Entered: 07/24/2013)
372 ORDER directing the Claims Administrator to file an affidavit explaining the circumstances of the claimants who were recently notified about their lack of membership in the settlement class. Signed by Judge Paul L. Friedman on July 31, 2013. (lcplf2) (Entered: 07/31/2013)
373 ORDER approving the Ombudsman's invoice for the period of May 2013. Signed by Judge Paul L. Friedman on August 5, 2013. (MA) (Entered: 08/05/2013)
374 RESPONSE TO ORDER OF THE COURT (Affidavit of Claims Administrator) re 372 Order filed by NICOLE F.J. HAMANN. (td, ) (Entered: 08/06/2013)
375 Unopposed MOTION for Order Approving Distribution of Funds by ALL PLAINTIFFS (Attachments: # 1 Exhibit A − Preliminary Final Accounting)(Marks, Andrew) (Entered: 08/06/2013)
377 Letter from Network of Black Farm Groups and Advocates 'Let This Be Filed' signed by Judge Paul L. Friedman on 8/9/2013. (zmm, ) (Entered: 08/13/2013)
376 NOTICE of Revised Preliminary Final Accounting by ALL PLAINTIFFS re 375 Unopposed MOTION for Order Approving Distribution of Funds (Attachments: # 1 Exhibit A − Revised Preliminary Final Accounting)(Marks, Andrew) (Entered: 08/13/2013)
378 NOTICE of Corrected Preliminary Final Accounting by ALL PLAINTIFFS re 376 Notice (Other), 375 Unopposed MOTION for Order Approving Distribution of Funds (Attachments: # 1 Exhibit A − Corrected Preliminary Final Accounting, # 2 Text of Proposed Order)(Marks, Andrew) (Entered: 08/15/2013)
379 Unopposed MOTION to Modify Final Order and Judgment by ALL PLAINTIFFS (Attachments: # 1 Exhibit A − Track A Claim Determination Letters, # 2 Exhibit B − Track B Claim Determination Letter)(Marks, Andrew) (Entered: 08/19/2013)
380 ORDER granting 375 Lead Class Counsel's unopposed motion for approval of distribution of funds, and the payments detailed in the Corrected Preliminary Final Accounting (dated August 15, 2013) prepared by the Claims Administrator and attached as Exhibit A to the Notice of filing submitted by Lead Class Counsel on August 15, 2013 are approved. Signed by Judge Paul L. Friedman on August 23, 2013. (MA) (Entered: 08/23/2013)

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 49 of 57

08/27/2013 08/29/2013
08/30/2013 09/03/2013 09/10/2013 09/18/2013 10/08/2013
10/15/2013
10/15/2013 10/23/2013 11/14/2013 12/27/2013 12/27/2013 12/27/2013 12/27/2013 12/27/2013 12/30/2013 12/31/2013 12/31/2013 01/30/2014

381 ORDER granting 379 consent motion to amend final order and judgment. Signed by Judge Paul L. Friedman on August 27, 2013. (MA) (Entered: 08/27/2013)
382 Letter to Judge Friedman from Lead Class Counsel dated August 14, 2013 in response to letter from Network of Black Farm Groups and Advocates dated August 9, 2013 regarding the decision by the Claims Administrator to reject the claims submitted by 461 claimants. Signed by Judge Paul L. Friedman on August 29, 2013. (MA) (Entered: 08/29/2013)
383 Letter from Judge Friedman to the Network of Black Farm Groups and Advocates. Signed by Judge Paul L. Friedman on August 29, 2013. (MA) (Entered: 08/30/2013)
DEPOSIT of Funds in the amount of $ 399,690.00, RECEIVED FROM Crowell & Moring, Receipt Number CQ13461600096. (rdj) (Entered: 09/04/2013)
384 ORDER approving the Ombudsman's invoice for the period of June 2013. Signed by Judge Paul L. Friedman on September 10, 2013. (MA) (Entered: 09/10/2013)
385 ORDER approving the Ombudsman's invoice for the period of July 2013. Signed by Judge Paul L. Friedman on September 18, 2013. (MA) (Entered: 09/18/2013)
386 VACATED PER MINUTE ORDER FILED 10/15/2013.....ORDER approving the Ombudsman's proposed budget for the period of September 1, 2013 through February 28, 2014. Signed by Judge Paul L. Friedman on October 9, 2013. (MA) Modified on 10/16/2013 (zmm, ). (Entered: 10/08/2013)
MINUTE ORDER. The Courts Order issued on October 8, 2013 [Dkt. No. 386], approving the Ombudsmans proposed budget for the period of September 1, 2013 through February 28, 2014, is hereby VACATED. A substitute Order will be issued promptly. Signed by Judge Paul L. Friedman on October 15, 2013. (MA) (Entered: 10/15/2013)
387 ORDER approving the Ombudsman's proposed budget for the period of September 1, 2013 through February 28, 2014. Signed by Judge Paul L. Friedman on October 15, 2013. (MA) (Entered: 10/15/2013)
388 ORDER approving the Ombudsman's invoice for the period of August 2013. Signed by Judge Paul L. Friedman on October 23, 2013. (MA) (Entered: 10/23/2013)
389 ORDER approving the Ombudsman's invoice for the period of September 2013. Signed by Judge Paul L. Friedman on November 14, 2013. (MA) (Entered: 11/14/2013)
390 MOTION for Reconsideration by Clifford Daniels. 'Let this be filed.' Signed by Judge Paul L. Friedman on 12/23/2013. (zmm, ) (Entered: 12/27/2013)
391 MOTION for Reconsideration by Bernice C. Atchison 'Let this be filed.' Signed by Judge Paul L. Friedman on 12/23/2013. (zmm, ) (Entered: 12/27/2013)
392 MOTION for Reconsideration by Brenda M. Gray. 'Let this be filed.' Signed by Judge Paul L. Friedman on 12/23/2013. (zmm, ) (Entered: 12/27/2013)
393 MOTION for Reconsideration by Evelyn Irene Dillard 'Let this be filed.' Signed by Judge Paul L. Friedman on 12/23/2013. (zmm, ) (Entered: 12/27/2013)
394 MOTION for Reconsideration by LeRoy McKeller 'Let this be filed.' Signed by Judge Paul L. Friedman on 12/23/2013. (zmm, ) (Entered: 12/27/2013)
395 ORDER approving the Ombudsman's invoice for the period of October 2013. Signed by Judge Paul L. Friedman on December 30, 2013. (lcplf2) (Entered: 12/30/2013)
Set/Reset Deadlines: Response to pro se motions and letters [390, 391, 392, 393, 394] due by 1/30/2014. (zmm, ) (Entered: 12/31/2013)
396 MEMORANDUM OPINION AND ORDER Signed by Judge Paul L. Friedman on 12/31/2013. (zmm, ) (Entered: 12/31/2013)
397 RESPONSE TO ORDER OF THE COURT re 396 Memorandum & Opinion filed by THOMAS J. VILSACK. (Moore, Tamra) (Entered: 01/30/2014)

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01/31/2014 02/27/2014
02/28/2014 03/05/2014
03/21/2014 04/02/2014 04/03/2014 04/07/2014 05/19/2014 05/27/2014 07/02/2014
07/11/2014 08/27/2014 09/09/2014 09/15/2014
09/17/2014
09/22/2014 09/29/2014 10/21/2014 10/30/2014
12/04/2014 12/18/2014

398 RESPONSE TO ORDER OF THE COURT re 396 Memorandum & Opinion filed by ALL PLAINTIFFS. (Marks, Andrew) (Entered: 01/31/2014)
399 ORDER approving the Ombudsman's invoice for the period of November 2013. Signed by Judge Paul L. Friedman on February 27, 2014. (lcplf2) (Entered: 02/27/2014)
400 NOTICE of Change in Firm Status by PHILLIP L. FRAAS (Fraas, Phillip) (Entered: 02/28/2014)
401 MEMORANDUM OPINION AND ORDER denying [390, 391, 392, 393, 394] claimants' pro se motions seeking reconsideration of their claim determinations. Signed by Judge Paul L. Friedman on March 5, 2014. (MA) (Entered: 03/05/2014)
402 NOTICE OF WITHDRAWAL OF APPEARANCE as to THOMAS J. VILSACK. Attorney Michael Sitcov terminated. (Moore, Tamra) (Entered: 03/21/2014)
403 ORDER approving the Ombudsman's invoice for the period of December 2013. Signed by Judge Paul L. Friedman on April 2, 2014. (MA) (Entered: 04/02/2014)
404 MOTION to Modify Final Order and Judgment by ALL PLAINTIFFS (Marks, Andrew) (Entered: 04/03/2014)
405 ORDER granting 404 plaintiffs' motion to further modify Final Order and Judgment. Signed by Judge Paul L. Friedman on April 7, 2014. (MA) (Entered: 04/07/2014)
406 ORDER approving the Ombudsman's invoice for the period of January 2014. Signed by Judge Paul L. Friedman on May 19, 2014. (MA) (Entered: 05/19/2014)
407 ORDER approving the Ombudsman's invoice for the period of February 2014. Signed by Judge Paul L. Friedman on May 27, 2014. (MA) (Entered: 05/27/2014)
408 ORDER approving the Ombudsman's proposed budget for the period of March 1, 2014, through August 31, 2014. Signed by Judge Paul L. Friedman on July 2, 2014. (lcplf2) (Entered: 07/02/2014)
409 ORDER approving the Ombudsman's invoice for the period of March 2014. Signed by Judge Paul L. Friedman on July 11, 2014. (MA) (Entered: 07/11/2014)
410 ORDER approving the Ombudsman's invoice for the period of April 2014. Signed by Judge Paul L. Friedman on August 27, 2014. (MA) (Entered: 08/27/2014)
411 ORDER approving the Ombudsman's invoice for the period of May 2014. Signed by Judge Paul L. Friedman on September 9, 2014. (MA) (Entered: 09/09/2014)
412 Unopposed MOTION to Modify Final Order and Judgment and Memorandum in Support by BLACK FARMERS DISCRIMINATION LITIGATION (Marks, Andrew) (Entered: 09/15/2014)
413 ORDER granting 412 unopposed motion to further modify Final Order and Judgment. Signed by Judge Paul L. Friedman on September 17, 2014. (MA) (Entered: 09/17/2014)
414 ORDER approving the Ombudsman's invoice for the period of June 2014. Signed by Judge Paul L. Friedman on September 22, 2014. (MA) (Entered: 09/22/2014)
415 ORDER approving the Ombudsman's invoice for the period of July 2014. Signed by Judge Paul L. Friedman on September 29, 2014. (lcplf2) (Entered: 09/29/2014)
416 ORDER approving the Ombudsman's invoice for the period of August 2014. Signed by Judge Paul L. Friedman on October 21, 2014. (MA) (Entered: 10/21/2014)
417 ORDER approving the Ombudsman's proposed budget for the period September 1, 2014 through February 28, 2015. Signed by Judge Paul L. Friedman on October 30, 2014. (MA) (Entered: 10/30/2014)
418 ORDER approving the Ombudsman's invoice for the period of September 2014. Signed by Judge Paul L. Friedman on December 4, 2014. (MA) (Entered: 12/04/2014)
419 ORDER approving the Ombudsman's invoice for the period of October 2014. Signed by Judge Paul L. Friedman on December 18, 2014. (MA) (Entered: 12/18/2014)

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 51 of 57

01/27/2015 03/02/2015 04/10/2015 05/05/2015 05/12/2015 06/17/2015 08/06/2015 08/12/2015 08/20/2015 08/24/2015 09/03/2015
09/03/2015 09/30/2015 09/30/2015 10/01/2015
10/02/2015 10/06/2015 10/07/2015
10/07/2015 10/09/2015

420 ORDER approving the Ombudsman's invoice for the period of November 2014. Signed by Judge Paul L. Friedman on January 27, 2015. (MA) (Entered: 01/27/2015)
421 ORDER approving the Ombudsman's invoice for the period of December 2014. Signed by Judge Paul L. Friedman on March 2, 2015. (MA) (Entered: 03/02/2015)
422 ORDER approving the Ombudsman's invoice for the period of January 2015. Signed by Judge Paul L. Friedman on April 10, 2015. (MA) (Entered: 04/10/2015)
423 ORDER approving the Ombudsman's invoice for the period of February 2015. Signed by Judge Paul L. Friedman on May 5, 2015. (MA) (Entered: 05/05/2015)
424 ORDER approving the Ombudsman's proposed budget for the period of March 1, 2015 through August 31, 2015. Signed by Judge Paul L. Friedman on May 12, 2015. (MA) (Entered: 05/12/2015)
425 ORDER approving the Ombudsman's invoice for the period of March 2015. Signed by Judge Paul L. Friedman on June 17, 2015. (MA) (Entered: 06/17/2015)
426 NOTICE OF CHANGE OF ADDRESS OF CONLON, FRANTZ & PHELAN, LLP by ALL PLAINTIFFS (Frantz, David) (Entered: 08/06/2015)
427 ORDER approving the Ombudsman's invoice for the period of April 2015. Signed by Judge Paul L. Friedman on August 12, 2015. (MA) (Entered: 08/12/2015)
428 NOTICE of Change of Address by Phillip L. Fraas (Fraas, Phillip) (Entered: 08/20/2015)
429 ORDER approving the Ombudsman's invoice for the period of May 2015. Signed by Judge Paul L. Friedman on August 24, 2015. (MA) (Entered: 08/24/2015)
430 MEMORANDUM OPINION AND ORDER that the parties shall submit memoranda addressing the issues outlined in this memorandum opinion and order on or before October 9, 2015. Signed by Judge Paul L. Friedman on September 3, 2015.(MA) (Entered: 09/03/2015)
Set/Reset Deadlines: Parties to submit memoranda addressing the issues outlined in 430 Memorandum Opinion and Order due by 10/9/2015. (zmm) (Entered: 09/03/2015)
431 NOTICE OF SUBSTITUTION OF COUNSEL by Megan Anne Crowley on behalf of THOMAS J. VILSACK Substituting for attorney Tamra Moore (Crowley, Megan) (Entered: 09/30/2015)
432 MOTION for Extension of Time to File Response/Reply to Court's Order by THOMAS J. VILSACK (Attachments: # 1 Text of Proposed Order)(Crowley, Megan) (Entered: 09/30/2015)
433 ORDER granting 432 Defendant's Unopposed Motion For Extension of Time up to and including October 30, 2015 in order to Respond to 430 the Court's Memorandum Opinion and Order. Signed by Judge Paul L. Friedman on October 1, 2015. (lcplf2) (Main Document 433 replaced on 10/2/2015 to eliminate double header.) (zmm). (Entered: 10/01/2015)
Set/Reset Deadlines: Response to Court's 430 Memorandum Opinion due by 10/30/2015. (zmm) (Entered: 10/02/2015)
434 Consent MOTION for Extension of Time to File Response/Reply to the Court's Memorandum Opinion and Order by BLACK FARMERS DISCRIMINATION LITIGATION (Marks, Andrew) (Entered: 10/06/2015)
MINUTE ORDER granting 434 Class Counsel's Unopposed Motion For Extension of Time up to and including October 30, 2015 in order to respond to the Court's 430 Memorandum Opinion and Order. Signed by Judge Paul L. Friedman on October 7, 2015. (lcplf2) (Entered: 10/07/2015)
435 ORDER approving the Ombudsman's invoice for the period of June 2015. Signed by Judge Paul L. Friedman on October 7, 2015. (lcplf2) (Entered: 10/07/2015)
Set/Reset Deadlines: Response to 430 Memorandum Opinion and Order due by 10/30/2015. (zmm) (Entered: 10/09/2015)

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 52 of 57

10/21/2015
10/21/2015 10/28/2015 10/29/2015 11/19/2015
11/19/2015 11/19/2015 11/30/2015 12/01/2015
12/04/2015 12/14/2015 12/14/2015 12/18/2015
12/31/2015 12/31/2015 01/04/2016

MINUTE ORDER vacating the deadline of October 30, 2015 for both defendant and class counsel to respond to 430 the Court's Memorandum Opinion and Order pending the conference call to be held at 4:15 p.m. on October 29, 2015. Signed by Judge Paul L. Friedman on October 21, 2015. (MA) (Entered: 10/21/2015)
Set/Reset Deadlines/Hearings: Telephone Conference set for 10/29/2015 at 4:15 PM before Judge Paul L. Friedman. (cdw) (Entered: 10/21/2015)
436 WITHDRAWN PURSUANT TO ORDER 441 . . . . .MEMORANDUM by BLACK FARMERS DISCRIMINATION LITIGATION. (Marks, Andrew) Modified on 12/1/2015 (td). (Entered: 10/28/2015)
437 ORDER approving the Ombudsman's invoice for the period of July 2015. Signed by Judge Paul L. Friedman on October 29, 2015. (MA) (Entered: 10/29/2015)
438 MEMORANDUM OPINION AND ORDER regarding cy pres issues. The government shall file its memorandum of law on or before December 4, 2015; class counsel shall file its memorandum of law on or before December 18, 2015; any amicus brief shall be filed on or before December 31, 2015; the government's reply shall be due on or before January 15, 2016; and class counsel's reply shall be due on or before January 15, 2016. Signed by Judge Paul L. Friedman on November 19, 2015. (MA) (Entered: 11/19/2015)
439 ORDER approving the Ombudsman's invoice for the period of August 2015. Signed by Judge Paul L. Friedman on November 19, 2015. (MA) (Entered: 11/19/2015)
Set/Reset Deadlines: Government's Memorandum of Law due by 12/4/2015. Class counsel's memorandum of law due by 12/18/2015. (zmm) (Entered: 11/19/2015)
440 Unopposed MOTION to Withdraw 436 Memorandum, 430 Memorandum & Opinion by BLACK FARMERS DISCRIMINATION LITIGATION (Marks, Andrew) (Entered: 11/30/2015)
441 ORDER granting 440 lead counsel's unopposed motion for leave to withdraw memorandum of class counsel filed on October 28, 2015 regarding cy pres provisions of the Settlement Agreement and Order. Signed by Judge Paul L. Friedman on December 1, 2015. (MA) (Entered: 12/01/2015)
442 RESPONSE TO ORDER OF THE COURT re 438 Memorandum & Opinion, 430 Memorandum & Opinion filed by THOMAS J. VILSACK. (Crowley, Megan) (Entered: 12/04/2015)
443 ORDER approving the Ombudsman's invoice for the period of September 2015. Signed by Judge Paul L. Friedman on December 14, 2015. (MA) (Main Document 443 replaced on 12/14/2015) (zmm). (Entered: 12/14/2015)
NOTICE OF CORRECTED DOCKET ENTRY: Docket entry 443 image replaced. Incorrect image. (zmm) (Entered: 12/14/2015)
444 MEMORANDUM re 231 Order on Motion for Order, Order on Motion for Settlement,,,,,,,,,, 405 Order on Motion to Modify, 430 Memorandum & Opinion by BLACK FARMERS DISCRIMINATION LITIGATION. (Marks, Andrew) (Entered: 12/18/2015)
445 NOTICE of Appearance by Adam Schulman on behalf of Competitive Enterprise Institute's Center for Class Action Fairness (Schulman, Adam) (Entered: 12/31/2015)
446 MOTION for Leave to File Amicus Curiae Brief by Competitive Enterprise Institute's Center for Class Action Fairness (Attachments: # 1 Brief)(Schulman, Adam) (Entered: 12/31/2015)
MINUTE ORDER granting 446 The Competitive Enterprise Institute's Center for Class Action Fairness' Motion for Leave to File Amicus Curiae Brief in Support of Returning Unclaimed Settlement Funds to Class Members, and the Clerk of the Court is directed to docket [446−1] Brief of Amicus Curiae Competitive Enterprise Institute's Center for Class Action Fairness. Signed by Judge Paul L. Friedman on January 4, 2016. (MA) (Entered: 01/04/2016)

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 53 of 57

01/04/2016 01/15/2016 02/02/2016 02/26/2016 03/01/2016
03/03/2016
03/03/2016
03/03/2016 03/03/2016 03/08/2016 03/09/2016 03/30/2016 03/31/2016 04/08/2016 05/19/2016 06/08/2016 06/22/2016

447 AMICUS BRIEF by COMPETITIVE ENTERPRISE INSTITUTE'S CENTER FOR CLASS ACTION FARINESS. (td) (Entered: 01/04/2016)
448 REPLY filed by THOMAS J. VILSACK. (Crowley, Megan) (Entered: 01/15/2016)
449 ORDER approving the Ombudsman's invoice for the period of October 2015. Signed by Judge Paul L. Friedman on February 2, 2016. (MA) (Entered: 02/02/2016)
450 NOTICE of Change of Address by Phillip L. Fraas (Fraas, Phillip) (Entered: 02/26/2016)
451 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by BLACK FARMERS DISCRIMINATION LITIGATION (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Supplement Motion to Modify Final Order, # 2 Supplement REDACTED Motion to Modify Final Order, # 3 Text of Proposed Order Proposed Order)(Marks, Andrew) (Entered: 03/01/2016)
ENTERED IN ERROR.....MINUTE ORDER granting 451 plaintiffs' unopposed motion to file under seal its motion to modify final order and judgment and memorandum in support thereof and to file publicly the redacted version of the motion to modify. Signed by Judge Paul L. Friedman on March 3, 2016. (MA) Modified on 3/3/2016; corrected version already refiled.(ztnr) (Entered: 03/03/2016)
MINUTE ORDER granting 451 Plaintiffs' Unopposed Motion to File Under Seal. The Clerk of the Court is directed to docket under seal [451−1] Plaintiffs' Unopposed Motion to Modify Final Order and Judgment and Memorandum in Support Thereof. The Clerk of the Court is directed to docket on the public docket [451−2] Plaintiffs' Redacted Unopposed Motion to Modify Final Order and Judgment and Memorandum in Support Thereof. Signed by Judge Paul L. Friedman on March 3, 2016. (MA) (Entered: 03/03/2016)
452 SEALED MOTION filed by BLACK FARMERS DISCRIMINATION LITIGATION. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 03/04/2016)
453 Redacted Unopposed MOTION to Modify Final Order and Judgment by BLACK FARMERS DISCRIMINATION LITIGATION (td) (Main Document 453 replaced on 3/9/2016) (ztd). (Entered: 03/04/2016)
454 ENTERED IN ERROR.....ORDER approving the Ombudsman's invoice for the period of November 2015. Signed by Judge Paul L. Friedman on March 8, 2016. (MA) Modified on 3/9/2016; corrected version refiled. (ztnr) (Entered: 03/08/2016)
455 ORDER approving the Ombudsman's invoice for the period of November 2015. Signed by Judge Paul L. Friedman on March 9, 2016. (MA) (Entered: 03/09/2016)
456 Unopposed MOTION to Modify FINAL ORDER (REVISED) (#453) by BLACK FARMERS DISCRIMINATION LITIGATION (Marks, Andrew) (Entered: 03/30/2016)
457 ORDER granting 452 Sealed Motion; and granting 456 revised redacted unopposed motion to modify final order and judgment and memorandum in support thereof. Signed by Judge Paul L. Friedman on March 31, 2016. (MA) (Entered: 03/31/2016)
458 MEMORANDUM OPINION AND ORDER. The Court will enforce the cy pres provision of the Settlement Agreement as modified, Section V.E.13 405 . Signed by Judge Paul L. Friedman on April 8, 2016. (MA) (Entered: 04/08/2016)
459 ORDER approving the Ombudsman's invoice for the period of December 2015. Signed by Judge Paul L. Friedman on May 19, 2016. (MA) (Entered: 05/19/2016)
460 MEMORANDUM OPINION AND ORDER re JAMS' final invoice for Track A and Track B Neutral services provided in implementing the Settlement Agreement. Signed by Judge Paul L. Friedman on June 8, 2016. (MA) (Entered: 06/08/2016)
461 ORDER approving the Ombudsman's invoice for the period of January 2016. Signed by Judge Paul L. Friedman on June 22, 2016. (MA) (Entered: 06/22/2016)

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07/06/2016 08/09/2016 08/16/2016
08/31/2016 08/31/2016
08/31/2016 08/31/2016 08/31/2016 10/06/2016 11/03/2016 11/21/2016
11/22/2016
11/22/2016 11/22/2016 11/23/2016 11/29/2016

462 ORDER approving the Ombudsman's invoice for the period of February 2016. Signed by Judge Paul L. Friedman on July 6, 2016. (MA) (Entered: 07/06/2016)
463 ORDER approving the Ombudsman's invoice for the period of March 2016. Signed by Judge Paul L. Friedman on August 9, 2016. (MA) (Entered: 08/09/2016)
464 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by BLACK FARMERS DISCRIMINATION LITIGATION (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A − Public Version − Unopposed Motion to Modify Final Order and Judgment and Memorandum in Support Thereof, # 2 Exhibit B − Redacted Version − Unopposed Motion to Modify Final Oder and Judgment and Memorandum in Support Thereof, # 3 Text of Proposed Order Proposed Order)(Marks, Andrew) (Entered: 08/16/2016)
465 ORDER approving the Ombudsman's invoice for the period of April 2016. Signed by Judge Paul L. Friedman on August 31, 2016. (lcplf2) (Entered: 08/31/2016)
MINUTE ORDER granting 464 plaintiffs' Unopposed Sealed Motion for Leave to File Under Seal [464−1] their Unopposed Motion to Modify Final Order and Judgment and Memorandum in Support Thereof. The Clerk of the Court is directed to docket [464−1] under seal and to docket [464−2] the redacted version thereof on the public docket. Signed by Judge Paul L. Friedman on August 31, 2016. (lcplf2) (Entered: 08/31/2016)
466 SEALED MOTION filed by BLACK FARMERS DISCRIMINATION LITIGATION. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 08/31/2016)
467 (Public) MOTION to Modify Final Order and Judgment by BLACK FARMERS DISCRIMINATION LITIGATION (td) (Entered: 08/31/2016)
469 ORDER granting 467 Unopposed Motion to Amend Final Order and Judgment. Signed by Judge Paul L. Friedman on August 31, 2016. (lcplf2) (Entered: 08/31/2016)
470 ORDER approving the Ombudsman's invoice for the period of May 2016. Signed by Judge Paul L. Friedman on October 6, 2016. (MA) (Entered: 10/06/2016)
471 ORDER approving the Ombudsman's invoice for the period of June 2016. Signed by Judge Paul L. Friedman on November 3, 2016. (MA) (Entered: 11/03/2016)
472 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by BLACK FARMERS DISCRIMINATION LITIGATION (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit A − UNREDACTED Unopposed Motion, # 2 Exhibit B − REDACTED Unopposed Motion, # 3 Text of Proposed Order Proposed Order)(Marks, Andrew) (Entered: 11/21/2016)
MINUTE ORDER granting 472 plaintiffs' Unopposed Motion for Leave to File Under Seal their [472−1] Unopposed Motion to Modify Final Order and Judgment. The motion may be filed under seal and the Clerk of the Court is directed to docket it under seal. The Clerk of the Court is also directed to docket [472−2], the redacted version of plaintiffs motion that plaintiffs have already filed. Signed by Judge Paul L. Friedman on November 22, 2016. (MA) (Entered: 11/22/2016)
474 SEALED MOTION filed by BLACK FARMERS DISCRIMINATION LITIGATION. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 11/28/2016)
475 REDACTED DOCUMENT− Unopposed Motion to Modify Final Order and Judgment to 231 Order on Motion for Order,,,,,, Order on Motion for Settlement,,,,, by BLACK FARMERS DISCRIMINATION LITIGATION (td) (Entered: 11/28/2016)
473 ORDER approving the Ombudsman's invoice for the period of July 2016. Signed by Judge Paul L. Friedman on November 23, 2016. (MA) (Entered: 11/23/2016)
476 SEALED ORDER directing the settlement administrator to reissue a settlement check to the estate of A Bowen (This document is SEALED and only available to authorized persons.)(Signed by Judge Paul L. Friedman on 11/22/16).(ztj) (Entered: 11/29/2016)

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11/29/2016 12/02/2016 12/16/2016
12/16/2016 12/20/2016 01/06/2017 01/09/2017 01/23/2017 02/24/2017 03/01/2017 03/20/2017 03/28/2017 06/01/2017 08/11/2017
08/17/2017 09/15/2017 09/18/2017 09/19/2017 10/26/2017

477 ORDER 475 directing the claims administrator to reissue a settlement check, and setting the deadline of 12/4/16 to negotiate the reissued settlement check. (Signed by Judge Paul L. Friedman on 11/22/16). (tj) (Entered: 11/29/2016)
478 Letter from Leon Pierre regarding Memorandum Opinion; ("Let this be filed" by Judge Paul L. Friedman) (td) (Entered: 12/05/2016)
MINUTE ORDER directing defendant Thomas J. Vilsack, in his official capacity as Secretary of the United States Department of Agriculture, to respond to 478 Leon Pierre's letter on or before January 6, 2017. Signed by Judge Paul L. Friedman on December 16, 2016. (lcplf2) (Entered: 12/16/2016)
Set/Reset Deadlines: Responses due by 1/6/2017 (tj) (Entered: 12/16/2016)
479 ORDER approving the Ombudsman's invoice for the period of August 2016. Signed by Judge Paul L. Friedman on December 20, 2016. (lcplf2) (Entered: 12/20/2016)
480 RESPONSE re 478 Letter submitted by Leon Pierre filed by THOMAS J. VILSACK. (Moore, Tamra) (Entered: 01/06/2017)
481 ORDER approving the Ombudsman's invoice for the period of September 2016. Signed by Judge Paul L. Friedman on January 9, 2017. (MA) (Entered: 01/09/2017)
482 Letter from Leon Pierre ("Let this be filed" by Judge Paul L. Friedman) (td) (Entered: 01/26/2017)
483 ORDER approving the Ombudsman's invoice for the period of October 2016. Signed by Judge Paul L. Friedman on February 24, 2017. (MA) (Entered: 02/24/2017)
484 MEMORANDUM OPINION AND ORDER denying 478 Leon Pierre's letter motion. Signed by Judge Paul L. Friedman on March 1, 2017. (lcplf2) (Entered: 03/01/2017)
485 MOTION to Modify Final Order and Judgment and Memorandum in Support by BLACK FARMERS DISCRIMINATION LITIGATION (Marks, Andrew) (Entered: 03/20/2017)
486 ORDER granting 485 plaintiffs' motion to further modify Final Order and Judgment entered on October 27, 2011 231 . Signed by Judge Paul L. Friedman on March 28, 2017. (MA) (Entered: 03/28/2017)
487 ORDER approving the Ombudsman's invoice for the period of November 2016. Signed by Judge Paul L. Friedman on June 1, 2017. (MA) (Entered: 06/01/2017)
488 MOTION to Approve Payment of Cy Pres Implementation Costs re 231 Order on Motion for Order,,,,,, Order on Motion for Settlement,,,,, 170 Notice (Other),,,, 486 Order on Motion to Modify by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Exhibit Farm Aid Invoice #17−008)(Marks, Andrew) (Entered: 08/11/2017)
489 ORDER granting 488 plaintiffs' motion to approve payment of cy pres implementation costs. Signed by Judge Paul L. Friedman on August 17, 2017. (lcplf2) (Entered: 08/17/2017)
490 ORDER approving the Ombudsman's invoice for the period of December 2016. Signed by Judge Paul L. Friedman on September 15, 2017. (MA) (Entered: 09/15/2017)
491 MOTION for Order to Approve Payment of Cy Pres Implementation Costs by BLACK FARMERS DISCRIMINATION LITIGATION (Marks, Andrew) (Entered: 09/18/2017)
492 ORDER granting 491 the motion to approve payment of cy pres implementation costs. Signed by Judge Paul L. Friedman on September 19, 2017. (MA) (Entered: 09/19/2017)
493 MOTION for Order to Approve Payment of Cy Pres Implementation Costs by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Exhibit 1− FA Invoice to Lead Class Counsel Inv 17−019)(Marks, Andrew) (Entered: 10/26/2017)

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10/27/2017 11/01/2017 12/08/2017
12/21/2017
12/21/2017
12/22/2017 01/09/2018 01/10/2018
01/10/2018
01/25/2018 01/30/2018 02/13/2018
03/19/2018 03/30/2018 03/30/2018 04/13/2018 04/27/2018

494 ORDER granting 493 motion to approve payment of cy pres implementation costs. Signed by Judge Paul L. Friedman on October 27, 2017. (MA) (Entered: 10/27/2017)
495 NOTICE of Change of Address by Phillip L. Fraas (Fraas, Phillip) (Entered: 11/01/2017)
496 MOTION for Release of Funds to Designate Cy Pres Beneficiaries and Approve Partial Distribution of Funds Pursuant to Settlement Agreement by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Exhibit RFP − Grant Application Form, # 2 Exhibit Organizations Table)(Marks, Andrew) (Entered: 12/08/2017)
497 Consent MOTION for Extension of Time to File Response/Reply as to 496 MOTION for Release of Funds to Designate Cy Pres Beneficiaries and Approve Partial Distribution of Funds Pursuant to Settlement Agreement by THOMAS J. VILSACK (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 12/21/2017)
498 ORDER granting 497 defendant's consent Motion for Extension of Time up to and including January 9, 2018 within which to file a response to plaintiffs' motion to designate cy pres beneficiaries and approve partial distribution of cy pres funds pursuant to settlement agreement. Signed by Judge Paul L. Friedman on December 21, 2017. (MA) (Entered: 12/21/2017)
Set/Reset Deadlines: Responses due by 1/9/2018 (tj) (Entered: 12/22/2017)
499 RESPONSE re 496 MOTION for Release of Funds to Designate Cy Pres Beneficiaries and Approve Partial Distribution of Funds Pursuant to Settlement Agreement filed by THOMAS J. VILSACK. (Moore, Tamra) (Entered: 01/09/2018)
500 ORDER granting 496 Lead Class Counsel's motion to designate cy pres beneficiaries and approve partial distribution of cy pres funds pursuant to the settlement agreement. The Claims Administrator shall distribute from the remaining settlement funds designated amounts to designated organizations. Signed by Judge Paul L. Friedman on January 10, 2018. (MA) (Entered: 01/10/2018)
501 MEMORANDUM OPINION granting 496 Lead Class Counsel's motion to designate the cy pres beneficiaries recommended by class counsel and approve the proposed distribution of funds. An Order consistent with this Memorandum Opinion shall issue this same day. Signed by Judge Paul L. Friedman on January 10, 2018. (MA) (Entered: 01/10/2018)
502 ORDER approving the Ombudsman's invoice for the period of January 2017. Signed by Judge Paul L. Friedman on January 25, 2018. (MA) (Entered: 01/25/2018)
503 ORDER approving the Ombudsman's invoice for the period of February 2017. Signed by Judge Paul L. Friedman on January 30, 2018. (MA) (Entered: 01/30/2018)
504 RESPONSE TO ORDER OF THE COURT re 500 Memorandum & Opinion,, Order, regarding Cy Pres Application of The Black Belt Justice Center filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Marks, Andrew) (Entered: 02/13/2018)
505 NOTICE (Appeal of Class Counsel's Second Review Recommendation of the Black Belt Justice Center's Cy Pres Application by BLACK BELT JUSTICE CENTER; "Let this be filed" signed 3/19/18 by Judge Paul L. Friedman (td) (Entered: 03/20/2018)
506 ORDER directing the parties to respond to the Black Belt Justice Center's notice 505 appealing class counsel's second review of the organization's application for cy pres funds. Signed by Judge Paul L. Friedman on 3/30/18. (lcplf2) (Entered: 03/30/2018)
Set/Reset Deadlines: Responses due by 4/13/2018 Replies due by 5/11/2018. (tj) (Entered: 03/30/2018)
507 RESPONSE re 506 Order re Black Belt Justice Center Appeal filed by BLACK FARMERS DISCRIMINATION LITIGATION. (Marks, Andrew) Modified text to read "response" on 4/16/2018 (td). (Entered: 04/13/2018)
508 RESPONSE TO ORDER OF THE COURT re 506 Order filed by THOMAS J. VILSACK. (Moore, Tamra) (Entered: 04/27/2018)

Case: 1:08-mc-511 As of: 06/10/2019 08:24 PM EDT 57 of 57

05/17/2018
05/29/2018 07/10/2018 08/30/2018 09/05/2018 09/11/2018 09/11/2018 09/24/2018 09/24/2018 11/19/2018 12/07/2018 01/04/2019 04/08/2019

509 REPLY re 505 Notice (Appeal of Class Counsel's Second Review Recommendation of the Black Belt Justice Center's Cy Pres Application by BLACK BELT JUSTICE CENTER; "Let this be filed" signed 5/17/18 by Judge Paul L. Friedman. (tth) (Entered: 05/18/2018)
510 ORDER approving the Ombudsman's invoice for the period of March 2017. Signed by Judge Paul L. Friedman on 5/29/18. (lcplf2) (Entered: 05/29/2018)
511 ORDER approving the Ombudsman's invoice for the period of April 2017. Signed by Judge Paul L. Friedman on July 10, 2018. (MA) (Entered: 07/10/2018)
512 MOTION for Release of Funds Cy Pres Implementation Costs by BLACK FARMERS DISCRIMINATION LITIGATION (Attachments: # 1 Exhibit Farm Aid Cy Pres Invoice)(Marks, Andrew) (Entered: 08/30/2018)
513 ORDER granting 512 unopposed motion to approve payment of cy pres implementation costs. Signed by Judge Paul L. Friedman on Septemnber 5, 2018. (MA) (Entered: 09/05/2018)
514 ORDER approving the Ombudsman's invoice for the period of May 2017. Signed by Judge Paul L. Friedman on September 11, 2018. (MA) (Entered: 09/11/2018)
515 ORDER approving the Ombudsman's invoice for the period of June 2017. Signed by Judge Paul L. Friedman on September 11, 2018. (MA) (Entered: 09/11/2018)
516 ORDER approving the Ombudsman's invoice for the period of July 2017. Signed by Judge Paul L. Friedman on September 24, 2018. (MA) (Entered: 09/24/2018)
517 ORDER approving the Ombudsman's invoice for the period of August 2017. Signed by Judge Paul L. Friedman on September 24, 2018. (MA) (Entered: 09/24/2018)
518 ORDER approving the Ombudsman's invoice for the period of September 2017. Signed by Judge Paul L. Friedman on November 19, 2018. (MA) (Entered: 11/19/2018)
519 MEMORANDUM OPINION AND ORDER denying the Black Belt Justice Center's appeal 505 of Class Counsel's second review recommendation. Signed by Judge Paul L. Friedman on December 7, 2018. (lcplf2) (Entered: 12/07/2018)
520 ORDER approving the Ombudsman's invoice for the period of October 2017. Signed by Judge Paul L. Friedman on January 4, 2019. (lcplf2) (Entered: 01/04/2019)
521 ORDER approving the Ombudsman's invoice for the period of November 2017. Signed by Judge Paul L. Friedman on April 8, 2019. (MA) (Entered: 04/08/2019)


[CONTENT] April 14, 1999 | Pigford ||| Clearinghouse | thousands | African American | the U.S. Department of Agriculture ||| 185 ||| two | up to $50,000 | 3,000 | Track B | up to $250,000 ||| October 12, 1999 ||| October 12 | a later date | September 15, 2000 ||| 61,000 | fewer than 3,000 ||| May 22, 2008 | the Food, Conservation and Energy Act |||  ||| L. 110-234 | 122 ||| 923 ||| Section 14012 | the U.S. District Court |||  ||| August 8, 2008 | Paul L. Friedman | the U.S. District Court | 17 | Section 14012 ||| Agee v. Schafer | C.A |||  ||| Kimbrough v. Schafer | 08-0901 | Adams v. Schafer | 08-0919 | National Black Farmers Association | Schafer | 08-0940 | Bennet v. Schafer | 08-0962 | McKinney | Schafer | 08-1062 | Bolton | Schafer | 08-1070 | Copland | 08-1188 | Hampton | Schafer | 08-1381 ||| Robinson | 08-1513 | James v. Schafer | 08-2220 | Beckley | Vilsack | 09-1019 | Sanders | Vilsack | 09-1318 | Russell v. Vilsack | 09-1323 | Bridgeforth | 09-1401 | Allen v. Vilsack | 09-1422 | Anderson | Vilsack | 09-1507 ||| Black Farmers' Litigation | 08 ||| November 14, 2008 | 1 | section 5(g | Pigford ||| October 13, 1999 | June 18, 2008 | 2 | Section 1(h | the Consent Decree ||| February 18, 2010 |||  ||| two |||  ||| six | Edwards v. Vilsack | 10-0456 | Latham | Vilsack | 10-0737 | Andrews | Vilsack | 10-0801 ||| Sanders v. Vilsack (10-1053 | Johnson | Vilsack | 10-0839 | Abney v. Vilsack | 10-1026 ||| December 8, 2010 | Congress | the "Claims Resolution Act | $1.15 billion |||  ||| 111 | § | 201 | 124 ||| 3064, 3070 | 2010 ||| February 11, 2011 | Friedman ||| November 14, 2011 | May 11, 2012 ||| March 30, 2011 ||| Friedman | May 13, 2011 ||| October 27, 2011 | Friedman ||| 820 ||| 2d 78 ||| November 15, 2011 | one | the Black Farmers and Agriculturalist Association ||| BFAA | Section 741 of the 1999 | Farm Bill ||| January 13, 2012 | Friedman ||| 2012 | WL 8007271 ||| BFAA | Charlie Latham | the U.S. Court of Appeals ||| July 25, 2012 | the Court of Appeals | BFAA | BFAA ||| the Court of Appeals | Latham ||| February 26, 2013 | the Supreme Court | the United States | BFAA | Latham ||| February 6, 2012 | Stephen Carpenter ||| 842 | F. Supp ||| 2d 190 ||| May 11, 2012 ||| August 17, 2012 ||| September 14, 2012 | Friedman | May 11 | May 1, 2012 | 30 days ||| May 24, 2013 ||| 384 ||| June 21, 2013 | Friedman ||| Friedman | August 27, 2013, | April 7, 2014 | September 17, 2014 | August 31, 2016, March 28, 2017 ||| August 2020 | Ombudsman [SUMMARY] On April 14, 1999, a consent decree was approved in <i>Pigford v. Glickman</i> (FH-DC-0006 in this Clearinghouse; see "related cases", below), involving a class of thousands of African American farmers who had sued the U.S. Department of Agriculture over racially discriminatory farm loan denials. 185 F.R.D. 82 (D.D.C. 1999). In the settlement, two "claim tracks" were created: Track A, which had a lower standard of proof of discrimination (paying up to $50,000 for credit claims and $3,000 for non-credit claims), and Track B, which required a preponderance of the evidence (paying up to $250,000).  The deadline for claims under this settlement was October 12, 1999.  The Consent Decree allowed claimants who could show "extraordinary circumstances" for missing the October 12 deadline to file at a later date, until the final deadline of September 15, 2000.  In total 61,000 claims were brought late, but fewer than 3,000 were adjudicated based on the merits.

On May 22, 2008, the Food, Conservation and Energy Act (a/k/a "2008 Farm Bill") was enacted, providing claimants a right to pursue discrimination claims if they had petitioned to participate but did not get their petitions considered on the merits because they were filed late. Pub. L. 110-234, 122 Stat. 923. Section 14012 of the bill created a completely new cause of action for these "late-filers," which could be brought in the U.S. District Court for the District of Columbia. Subsequently, a large number of suits were filed under this new cause of action.

On August 8, 2008, Judge Paul L. Friedman of the U.S. District Court for the District of Columbia consolidated 17 cases resulting from Section 14012 that were currently pending in the district court: Agee v. Schafer (C.A.. No. 08-0882); Kimbrough v. Schafer (08-0901); Adams v. Schafer (08-0919); National Black Farmers Association v. Schafer (08-0940); Bennet v. Schafer (08-0962); McKinney v. Schafer (08-1062); Bolton v. Schafer (08-1070); Copland v. Vilsack (08-1188); Hampton v. Schafer (08-1381); Robinson v. Schafer (08-1513); James v. Schafer (08-2220); Beckley v. Vilsack (09-1019); Sanders v. Vilsack (09-1318); Russell v. Vilsack (09-1323); Bridgeforth v. Vilsack (09-1401); Allen v. Vilsack (09-1422); and Anderson v. Vilsack (09-1507).  All together, these matters were captioned In re Black Farmers' Litigation, and given the docket number 08-mc-0511.

On November 14, 2008, the plaintiffs filed an amended complaint, including a request to certify a putative class of "All individuals: (1) who submitted late-filing requests under section 5(g) of the <i>Pigford v. Glickman</i> Consent Decree on or after October 13, 1999, and on or before June 18, 2008; but (2) who have not obtained a determination on the merits of their discrimination complaints, as defined by Section 1(h) of the Consent Decree."

On February 18, 2010, the parties came to a settlement agreement, which was submitted to the court. The settlement agreement created a class with the description language from the amended complaint (see above). This settlement maintained the two tracks of claims, established "neutrals" who were assigned to adjudicate the settlement claims, and created an ombudsman position, which was to act as the liaison between the claimants and the court. In return for the re-evaluation of late-filing claims, the plaintiffs agreed to move for dismissal of all pending consolidated cases with prejudice, to be effective upon the court's final approval. After the execution of the initial form of the settlement agreement, six additional complaints were filed and consolidated with this case: Edwards v. Vilsack (10-0456); Latham v. Vilsack (10-0737); Andrews v. Vilsack (10-0801); Sanders v. Vilsack (10-1053); Johnson v. Vilsack (10-0839); and Abney v. Vilsack (10-1026).

On December 8, 2010, Congress passed the "Claims Resolution Act," which appropriated $1.15 billion to fund this settlement agreement.  Pub. L. No. 111-291, §201, 124 Stat. 3064, 3070 (2010). On February 11, 2011, Judge Friedman approved this settlement agreement. The order fixed the claim period between November 14, 2011, and May 11, 2012.

On March 30, 2011, the plaintiffs filed an unopposed motion for certification of the settlement class, described above. Judge Friedman approved certified the settlement class on May 13, 2011.  On October 27, 2011, Judge Friedman approved the final proposed class settlement. 820 F. Supp. 2d 78 (D.D.C. 2011).

On November 15, 2011, one of the plaintiffs in the consolidated case, the Black Farmers and Agriculturalist Association (BFAA), moved for reconsideration of the settlement approval.  The BFAA argued that the settlement should not have been approved because it unfairly prevented plaintiffs from pursuing substantive relief under the Section 741 of the 1999 Farm Bill.  This motion was denied on January 13, 2012, by Judge Friedman.  2012 WL 8007271 (D.D.C. 2012).  The BFAA and another class member, Charlie Latham, appealed this denial to the U.S. Court of Appeals for the District of Columbia Circuit.  On July 25, 2012, the Court of Appeals, in a per curiam order, denied the reconsideration appeal for the BFAA because the BFAA is not an "individual" under the class settlement, thereby not a part of the settlement.  In the same order, the Court of Appeals also denied Latham's appeal because he had already received a determination on his <i>Pigford</i> claim.  On February 26, 2013, the Supreme Court of the United States denied BFAA and Latham's petition for a writ of certiorari.

On February 6, 2012, Stephen Carpenter was appointed the independent ombudsman per the settlement agreement.  842 F. Supp. 2d 190 (D.D.C. 2012).

On May 11, 2012, the claim process ended.  The parties in this case moved on August 17, 2012 to alter the settlement to provide relief for claimants who missed the deadline for certain circumstances.  On September 14, 2012, Judge Friedman approved this alteration of the settlement, which allowed claimants who made a claim before the May 11 deadline and made a prima facie showing of class membership but was not sent a claim form before May 1, 2012 to have their claim considered "timely" if resubmitted within 30 days of the approved alteration.

On May 24, 2013, the plaintiff filed a motion to further modify the settlement agreement to allow certain claims previously denied as “incomplete” to be considered for adjudication on the merits. There are potentially 384 claims under the subject of this motion. On June 21, 2013, Judge Friedman denied this motion. 

Judge Friedman granted many more motions to amend the settlement agreement on the following dates: August 27, 2013, April 7, 2014, September 17, 2014, August 31, 2016, March 28, 2017. 

As of August 2020, the court is still reviewing invoices submitted by the Ombudsman’s office; the case is ongoing.