                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                )
MARILYN KEEPSEAGLE, et al.,     )
                                )
               Plaintiffs,      )
                                )
          v.                    ) Civil Action No. 99-3119 (EGS)
                                )
TOM VILSACK, Secretary, U.S.    )
Department of Agriculture,      )
                                )
               Defendant.       )
________________________________)

                       MEMORANDUM OPINION

  Pending before the Court is a motion filed by Class Counsel to

modify the Settlement Agreement that was entered in this case in

2011. The Settlement Agreement created a $680,000,000 fund and

included precise terms regarding the distribution of that fund

to individual class members who could prove their claims in a

non-Judicial Claims Process. In 2013, after the entire

distribution process had been completed, Class Counsel notified

the Court that approximately $380,000,000 remained in the fund.

The Settlement Agreement mandates that this excess be

distributed pursuant to a cy pres remedy.

  Many involved in this case would like to modify those

provisions of the Settlement Agreement. Some prefer a

modification that would direct that the $380,000,000 be

distributed as supplemental payments to class members who

succeeded under the non-Judicial Claims Process. Others have
suggested reopening the Claims Process to new or previously

unsuccessful claimants. Still others believe that opposition

from the Department of Agriculture has made it impossible to

obtain a modification that would alter the cy pres status of the

funds, and have proposed modifications that would create cy pres

distribution procedures to better handle the massive amount of

money to be distributed.

  Class Counsel’s pending motion falls into the latter category.

As this Court’s recent Opinions demonstrate, there is

significant controversy over Class Counsel’s motion. See

Keepseagle v. Vilsack (“Keepseagle I”), No. 99-3119, 2014 WL

5796751 (D.D.C. Nov. 7, 2014) (denying requests by two different

groups to intervene in the case to oppose Class Counsel’s

motion); Keepseagle v. Vilsack (“Keepseagle II”), No. 99-3119,

2015 WL 1851093 (D.D.C. Apr. 23, 2015) (adjudicating preliminary

motions filed by a class representative who intends to move

under Federal Rule of Civil Procedure 60(b) for a different

modification of the Settlement Agreement). A handful of issues

remain to be decided by the Court, including the ultimate

disposition of Class Counsel’s motion.

  This Opinion addresses only a narrow issue: Whether Federal

Rule of Civil Procedure 23(e) applies to Class Counsel’s motion

for modification and, if not, whether the Court may nonetheless

order Class Counsel to provide notice of their motion to the


                                2
Class and permit class members to speak during the June 29, 2015

hearing on Class Counsel’s motion for modification. Upon

consideration of the parties’ pleadings, the amicus curiae brief

filed on behalf of many class members, the applicable law, and

the entire record, the Court finds that Rule 23(e) does not

apply to Class Counsel’s motion, but that it is appropriate to

direct that Class Counsel provide notice to the Class and to

permit class members to speak at the June 29, 2015 hearing or to

submit written comments in advance of that hearing.

I.     Background

     The complete background of this case and its current posture

is set forth more fully in the Court’s recent Opinions. See

Keepseagle I, 2014 WL 5796751; Keepseagle II, 2015 WL 1851093.

In summary:

       Following over a decade of litigation, the parties to
       this class action reached a Settlement Agreement. See
       Agreement, ECF No. 621–2. The Agreement created a
       Compensation Fund (“the Fund”) of $680,000,000 “for the
       benefit of the Class.” Id. ¶ VII.F (p. 7). The Fund was
       to be used in part to cover the attorney-fee award and
       individual awards to those who served as class
       representatives. See id. Primarily, however, the Fund
       would “pay Final Track A Liquidated Awards, Final Track
       A Liquidated Tax Awards, Final Track B Awards, and Debt
       Relief Tax Awards, to, or on behalf of, Class Members
       pursuant to the Non-Judicial Claims Process.” Id.

       The Agreement described how leftover funds, if any,
       would be disbursed: “In the event there is a balance
       remaining . . . the Claims Administrator shall direct
       any leftover funds to the Cy Pres Fund.” Agreement ¶
       IX.F.9 (p. 37). “Class Counsel may then designate Cy
       Pres Beneficiaries to receive equal shares of the Cy


                                  3
     Pres Fund.” Id. These designations “shall be for the
     benefit of Native American farmers and ranchers.” Id.
     The Agreement made eligibility as a recipient contingent
     upon being “recommend[ed] by Class Counsel and
     approv[ed] by the Court.” Id. Potential recipients were
     also only “non-profit organization[s], other than a law
     firm, legal services entity, or educational institution,
     that has provided agricultural, business assistance, or
     advocacy services to Native American farmers between
     1981 and [November 1, 2010].” Id. ¶ II.I (pp. 6–7).

Keepseagle I, 2014 WL 5796751, at *2 (alterations in original).

As this Court has emphasized, the provisions of the Settlement

Agreement regarding leftover funds “mandated that all excess

funds be distributed pursuant to a cy pres remedy.” Keepseagle

II, 2015 WL 1851093, at *5 (emphasis in original).

  The Class also received notice of these provisions:

     The Claim Form also notified Track A claimants that they
     would be “eligible for . . . [a] cash award up to
     $50,000.” Ex. C to Agreement, ECF No. 576–1 at 63. The
     Notice that was sent to the Class similarly described
     the $50,000 maximum under Track A and the fact that
     participation would result in a resolution of the
     individual’s legal claim, and stated that “[i]f any
     money remains in the Settlement Fund after all payments
     to class members and expenses have been paid, then it
     will be donated to one or more organizations that have
     provided agricultural, business assistance, or advocacy
     services to Native Americans.” See Ex. I to Agreement,
     ECF No. 576–1 at 87, 88, 92.

Keepseagle I, 2014 WL 5796751, at *2 (alterations in original).

  The Settlement Agreement was presented to the Court in late

2010. See id. at *3. The Court preliminarily approved it, and

“also approved the parties’ proposed notice to the Class,

directed that any objections to the Agreement be postmarked by



                                4
no later than February 28, 2011, and scheduled a fairness

hearing for April 28, 2011.” Id. (citing Order, ECF No. 577 at

3). “After hearing from all who attended the fairness hearing,

the Court found that the Agreement was fair and reasonable and

approved it pursuant to Federal Rule of Civil Procedure 23(e).

No appeal was filed from the Court’s approval of the Agreement.”

Id.

  The parties then commenced the non-Judicial Claims Process. On

August 30, 2013, after this process had come to a close, Class

Counsel filed a status report, notifying the Court that

approximately $380,000,000 remained leftover. See Status Report,

ECF No. 646 at 3. Class Counsel asserted that this “render[ed]

some of the conditions for cy pres distribution impractical.”

Id. at 5. Class Counsel and the Department of Agriculture could

not agree on how to proceed, Response to Status Report, ECF No.

649, so the Court held periodic status hearings and allowed the

parties additional time to come to an agreement.

  On September 24, 2014, Class Counsel filed an unopposed motion

to modify the Settlement Agreement:

      The modification proposes that 10% of the Cy Pres Fund
      be distributed immediately to non-profit organizations
      “proposed by Class Counsel and approved by the Court”
      that must also meet the following criteria: (1) they
      must have “provided business assistance, agricultural
      education, technical support, or advocacy services to
      Native American farmers or ranchers between 1981 and
      November 1, 2010 to support and promote their continued
      engagement in agriculture”; and (2) they must be “either


                                 5
     a tax-exempt organization described in Section 501(c)(3)
     of the Internal Revenue Code . . . educational
     organization described in Section 170(b)(1)(A)(ii) of
     the Code; or an instrumentality of a state or federally
     recognized tribe, including a non-profit organization
     chartered under the tribal law of a state or federally
     recognized tribe, that furnishes assistance designed to
     further Native American farming or ranching activities.”
     Proposed Addendum to Agreement, ECF No. 709–2 ¶ II.A.

     The modification utilizes the remainder of the Cy Pres
     Fund to create a trust “for the purpose of distributing
     the cy pres funds” which “shall seek recognition as a
     non-profit organization under § 501(c)(3).” Id. ¶ II.B.
     The trust would be required “to distribute the funds
     over a period not to exceed 20 years” and would be
     charged with disbursing the funds to “not-for-profit
     organizations that have served or will serve Native
     American farmers and ranchers.” Mot. to Modify, ECF No.
     709–1 at 1. The Trust would be authorized to make grants
     subject to the following restrictions: (i) “grants must
     be to a tax-exempt organization described in Section
     501(c)(3)   of   the  Code;   educational   organization
     described in Section 170(b)(1)(A)(ii) of the Code; or an
     instrumentality of a state or federally recognized
     tribe, including a non-profit organization chartered
     under the tribal law of a state or federally recognized
     tribe, that furnishes assistance designed to further
     Native American farming or ranching activities”; and
     (ii) “the organization must use the funds to provide
     business assistance, agricultural education, technical
     support, and advocacy services to Native American
     farmers and ranchers, including those seeking to become
     farmers or ranchers, to support and promote their
     continued engagement in agriculture.” Proposed Addendum
     to Agreement, ECF No. 709–2 ¶ II.B.

Keepseagle I, 2014 WL 5796751, at *3–4.

  In October 2014, the Court raised three questions for the

parties in connection with Class Counsel’s proposal:

     (1) whether the Court must direct notice to the Class
     and hold a fairness hearing pursuant to Federal Rule of
     Civil Procedure 23(e); (2) whether, if Rule 23 does not
     permit the Court to require such notice and a hearing,


                                6
     the Court may nonetheless exercise discretion to direct
     notice to the class and to permit class members to give
     their thoughts on . . . the proposed modification during
     a status hearing or motion hearing; and (3) what content
     and form any notice . . . should take.

Minute Order of October 20, 2014. The government and Class

Counsel assert that Rule 23(e) does not apply, but that the

Court may in its discretion direct notice and hold a status

hearing at which class members may speak. See Gov’t’s Br., ECF

No. 730; Class Counsel’s Br., ECF No. 731. The Great Plains

Claimants—a group of class members who succeeded under the non-

Judicial Claims Process—filed an amici curiae brief, in which

they argue that Rule 23(e) applies. See Great Plains Amicus, ECF

No. 741. The government and Class Counsel responded to that

brief. See Class Counsel Reply, ECF No. 742; Gov’t Reply, ECF

No. 743.

  During a December 2, 2014 status hearing, the Court heard from

Marilyn Keepseagle, a class representative who had expressed

written opposition to Class Counsel’s motion. See Keepseagle II,

2015 WL 1851093, at *2. Ms. Keepseagle “discussed her opposition

to Class Counsel’s proposed modification and her support for a

proposal under which the cy pres funds would instead be

distributed to members of the class.” Id. “Accordingly, the

Court held further proceedings in abeyance, and granted Ms.

Keepseagle time to secure legal representation.” Id. After

securing counsel, Ms. Keepseagle and her husband, George


                                7
Keepseagle, filed two preliminary motions—for removal of certain

class representatives and to compel production of certain

materials by Class Counsel—on which they requested a decision

before beginning to brief their own motion for modification of

the Settlement Agreement. See id. The Court denied those motions

on April 23, 2015. See id. That same day, the Court set a

briefing schedule for both Class Counsel’s motion for

modification and the Keepseagles’s motion. See Order, ECF No.

771 at 1–2. The Court will now address the Rule 23(e) issues.

II.    Rule 23(e) Does Not Apply to Class Counsel’s Proposed
       Modification.

  Both Class Counsel and the government assert that Federal Rule

of Civil Procedure 23(e) does not apply to Class Counsel’s

motion for modification of the Settlement Agreement because the

modification would not materially alter the legal rights of any

class member. Although the amici curiae disagree, the Court

finds that the parties are correct: Rule 23(e) applies only when

a modification materially hinders a class member’s legal right,

and this proposed modification would not do so.

  A.     Rule 23(e) Applies Only When a Modification Would
         Materially Hinder a Class Member’s Legal Rights.

  The underlying purpose of Rule 23’s procedural protections is

to protect the rights of absent class members whose legal claims

will be resolved by adjudication of the class’s claims:




                                  8
     Class actions are a form of representative litigation.
     One or more class representatives litigate on behalf of
     many absent class members, and those class members are
     bound by the outcome of the representative’s litigation.
     Ordinarily, such vicarious representation would violate
     the due process principle that “one is not bound by a
     judgment in personam in a litigation in which he has not
     been made a party by service of process.” However, the
     class action serves as an exception to this maxim so
     long as the procedural rules regulating class actions
     afford absent class members sufficient protection.

Newberg on Class Actions § 1:1 (5th ed. 2014); see also id. §

1:5 (“Rule 23 is constructed to ensure that the representative

nature of class action litigation safeguards these absent class

members’ due process rights.”). Subsections of Rule 23 create

procedures to ensure that absent class members are given such

protection in various ways. See, e.g., Wal-Mart Stores, Inc. v.

Dukes, 131 S. Ct. 2541, 2550 (2011) (“Rule 23(a) ensures that

the named plaintiffs are appropriate representatives of the

class whose claims they wish to litigate.”).

  The settlement of class actions is governed by Federal Rule of

Civil Procedure 23(e), which provides that “[t]he claims,

issues, or defenses of a certified class may be settled,

voluntarily dismissed, or compromised only with the court’s

approval.” The Rule further requires that, when faced with any

“proposed settlement, voluntary dismissal, or compromise,” the

Court: (1) “must direct notice in a reasonable manner to all

class members who would be bound by the proposal”; and (2) “may

approve it only after a hearing and on finding that it is fair,


                                9
reasonable, and adequate,” if “the proposal would bind class

members.” Fed. R. Civ. P. 23(e). Consistent with Rule 23’s

concern for the legal rights of absent class members, then, the

touchstone for Rule 23(e) is whether the proposal would bind

class members.

  Entry of a traditional settlement of a class’s legal claims

clearly implicates this rule. “‘An agreement between the parties

dismissing all claims is the equivalent of a decision on the

merits and thus claims settled by agreement are barred by res

judicata.’” Keepseagle I, 2014 WL 5796751, at *12 (quoting

Chandler v. Bernanke, 531 F. Supp. 2d 193, 197 (D.D.C. 2008)).

Absent class members who have not opted out of the class

therefore have their legal claims extinguished when a class-

action settlement is approved.

  Modifications to a previously approved settlement may present

a more difficult issue. By definition, the class’s underlying

legal claims have already been extinguished by the original

settlement. A modification of that agreement, then, would not

necessarily have a further res judicata effect—the claim, after

all, has already been extinguished. Accordingly, courts

generally find that Rule 23(e) applies to a modification of a

previously approved settlement only when the settlement will be

“materially alter[ed].” In re Baby Prods. Antitrust Litig., 708

F.3d 163, 175 n.10, 182 (3d Cir. 2013). Phrased more


                                 10
specifically, an amendment requires supplemental notice only

when it “would have a material adverse effect on the rights of

class members.” In re Diet Drugs Prods. Liability Litig., No.

99-20593, 2010 WL 2735414, at *6 (E.D. Pa. July 2, 2010); see

also Harris v. Graddick, 615 F. Supp. 239, 244 (M.D. Ala. 1985)

(“Under these limited circumstances where the amendment is

narrow and it is clearly apparent that the interests of the

classes are not substantially impaired, the court is of the

opinion that the notice already given is adequate and that

additional notice is not required pursuant to Rule 23(e).”); cf.

Manual for Complex Litigation § 21.61 (4th ed.) (“If the

fairness hearing leads to substantial changes adversely

affecting some members of the class, additional notice, followed

by an opportunity to be heard, might be necessary.”).

  Courts have applied this principle in a handful of

circumstances. Where an amendment would merely “provide[] many

additional benefits, including additional funding for research

relating to [a medical condition connected to the class’s

injury] and a guarantee . . . regarding [defendant’s] continued

payment obligations,” no legal right was adversely affected and

Rule 23(e) did not apply. In re Diet Drugs, 2010 WL 2735414, at

*6; see also Shaffer v. Continental Cas. Co., 362 F. App’x 627,

631 (9th Cir. 2010) (“Although changes were made to the release

after potential class members received the notice, the changes


                               11
did not render the notice inadequate because they narrowed the

scope of the release.”); In re Integra Realty Resources, Inc.,

262 F.3d 1089, 1111 (10th Cir. 2001) (supplemental notice not

required where a proposed amendment merely “expand[s] the rights

of class members”); In re Prudential Ins. Co. Sales Practices

Litig., 962 F. Supp. 450, 473 n.10 (D.N.J. 1997) (“Class members

need not be informed of the Final Enhancements to the settlement

because the Proposed Settlement is only more valuable with these

changes.”), aff’d, 148 F.3d 283 (3d Cir. 1998). Even if a

modification does not provide additional benefits, Rule 23(e)

has been found not to apply to a modification that made only

“minor modifications . . . [, which] did not impair class

members’ rights even indirectly.” Jones v. Gusman, 296 F.R.D.

416, 467 (E.D. La. 2013).1

    That is not to say that a modification can never hinder a

class member’s legal rights. Rule 23(e) would apply to a




1 Where a modification would materially affect the legal rights
of only some class members, notice to unaffected class members
is unnecessary, but affected class members must be notified. See
Nilsen v. York Cnty., 382 F. Supp. 2d 206, 221 n.9 (D. Me. 2005)
(“Because the class-wide settlement notice in this case already
satisfied the requirements of Rule 23(e)(1)(B), as I discussed
above, I would require notice of the amendment and the opt-out
right only to female class members who have already filed
claims, because they are the only class members who would be
negatively affected by such an amendment.”); White v. Nat’l
Football League, 836 F. Supp. 1458, 1468–69 (D. Minn. 1993)
(directing supplemental notice of amendments only to class
members that would be affected by the amendments).


                                 12
modification that provided for lesser recovery to certain class

members than was available under the original agreement. See,

e.g., In re Diet Drugs Prods. Liability Litig., 226 F.R.D. 498,

518 (E.D. Pa. 2005). It would also cover a modification that

altered class member’s rights by “extinguish[ing] certain opt-

out rights.” Id. Even if these losses are exchanged for

“valuable benefits to class members,” the fact remains that

class members’s legal rights under the settlement would be

hindered, making Rule 23(e) applicable. See id. As the D.C.

Circuit has implicitly recognized in a related context, a class

member’s legal rights may be implicated when class counsel seeks

to bargain away the right to enforce portions of a previously

entered settlement. See Twelve John Does v. District of

Columbia, 117 F.3d 571 (D.C. Cir. 1997) (applying Rule

23(a)(4)’s adequacy-of-representation requirement, which is

similarly concerned with whether a class member’s legal rights

will be bound).

  Where no legal right would be hindered, however, Rule 23(e)’s

procedural protections do not apply for the simple reason that

there is no risk that an absent class member will be legally

harmed by approval of the modification. Accordingly, an

amendment that neither adds to the res judicata effect of a

judgment by expanding the scope of covered claims nor otherwise




                               13
limits any legal right held by a class member need not be

subject to a renewed Rule 23(e) process.

    B.   Class Counsel’s Proposed Modification Does Not Alter the
         Legal Rights of Class Members.

    The Court directed extensive notice to the Class of the

Settlement Agreement in 2011, and the adequacy of that notice is

not challenged here. Nor did anyone appeal the Court’s approval

of that Settlement Agreement in 2011. There is thus no challenge

to the fact that the final Settlement Agreement extinguished the

legal claims of those who participated and mandated that all

leftover funds be used for cy pres purposes.2 The question, then,

is not whether choosing to utilize a cy pres remedy in the first

instance would alter the class’s legal rights if the Settlement

Agreement were silent on the disposition of excess funds (that

ship sailed in 2011); rather, it is whether the proposed

alternative procedures for distribution of those cy pres funds

would alter the legal rights of any class member.

    Those who participated in the Settlement Agreement’s process

assented to the extinction of their legal claims through their

participation. Those who did not participate but failed to opt




2 It is on this point that the amici err. Their argument presumes
that individual class members retain a legal right to possession
of the excess funds, even though the Settlement Agreement
required that all excess funds be transferred to a Cy Pres Fund
and distributed pursuant to a cy pres remedy. See Keepseagle II,
2015 WL 1851093 at *5.


                                 14
out similarly had their legal claims extinguished. See

Keepseagle I, 2014 WL 5796751, at *12 (“Once the Agreement was

approved and no appeal was filed, the claims of class members

who did not opt out were extinguished, in accordance with the

Agreement’s terms.”) (citing Agreement ¶¶ VI.A (p. 15), X (pp.

51–52)). Accordingly, no member of the Class retains a live

legal claim.

  Nor does any individual class member have a property interest

in the unclaimed funds, as this Court previously held:

     “In approaching the question of the appropriate
     distribution of such funds, various courts have
     determined that ‘neither the class members nor the
     settling defendants have any legal right to unclaimed or
     excess funds.’” Diamond Chem. Co. v. Akzo Nobel Chems.
     B.V., 517 F. Supp. 2d 212, 217 (D.D.C. 2007) (quoting
     Powell[ v. Georgia-Pacific Corp.], 843 F. Supp. [491,
     ]495 [(W.D. Ark. 1994)], aff’d, 119 F.3d 703, 706 (8th
     Cir. 1997) (“neither party has a legal right to the
     unclaimed funds”)); see also Wilson v. Southwest
     Airlines, 880 F.2d 807, 811 (5th Cir. 1989) (“We agree
     with the district court that . . . none of the parties
     in this case has a legal right to the balance of the
     fund.”); In re Folding Carton Antitrust Litig., 744 F.2d
     1252, 1254 (7th Cir. 1984) (“we agree that neither the
     plaintiff class nor the settling defendants have any
     right to the reserve fund”); In re Motorsports
     Merchandise Antitrust Litig., 160 F. Supp. 2d 1392, 1393
     (N.D. Ga. 2001) (“Neither the class members nor the
     settling defendants have any legal right to unclaimed or
     excess   funds.”)   (alteration  and   quotation   marks
     omitted). Once a settlement agreement is final, “all
     class members who presented their claims received the
     full payment due them, and those who did not present
     claims have waived their legal right to do so. Thus, the
     class has no further legal rights in the fund.” Wilson,
     880 F.2d at 811–12.




                               15
     Professor Rubenstein echoes this position in the most
     recent edition of Newberg on Class Actions. Although
     there is some dispute over the property status of
     unclaimed funds, “most courts start from the proposition
     that neither the plaintiff class nor the settling
     defendants have any right to the unclaimed or excess
     funds.” Newberg on Class Actions § 12:28 (5th ed. 2014)
     (quotation marks omitted). The argument that unclaimed
     settlement funds are property of the class is
     problematic, he posits:

          The premise that the recovery fund is the
          property of the plaintiff class is not quite
          right because the settlement fund does not
          truly belong to the class as a whole, but
          rather to the class members individually. When
          a class member does not claim her share of the
          fund, it is not at all obvious that her share
          therefore belongs to the other class members.
          If, for example, the government distributed a
          tax refund to a group of taxpayers but some
          did not cash their checks, no one would
          seriously propose that the unclaimed funds are
          the property of, and should be distributed pro
          rata to, those other citizens who received tax
          refunds . . . . Additionally, an individual’s
          presence as a class member in a class action
          hardly expands her property rights to include
          the property of the other class members. Even
          if it is the case that the claiming class
          members have received less than the full value
          of their claims by the settlement, that fact
          does not magically make the nonclaimaints’
          property theirs.

     Id. § 12:30.

Keepseagle I, 2014 WL 5796751, at *12–13.

  Because all class members have settled their legal claims and

retain no property interest in the unclaimed funds, a

modification of the procedures for distributing the unclaimed

funds as cy pres would not alter the legal rights of any class



                               16
member. The class members are affected to the extent that they

would like the Settlement Agreement to be modified to permit

additional payments directly to class members. But that is not a

harm caused by the proposed modification; rather, it stems from

the plain language of the Settlement Agreement. The

modifications to the cy pres distribution scheme therefore do

not have a material impact on the legal rights of any class

member, making Rule 23(e)’s procedural requirements

inapplicable.

III. The Court Will Order Notice to the Class and Hold a Hearing
     at Which Class Members May Speak.

  Although Rule 23(e) does not apply to Class Counsel’s pending

motion, the Court finds that it has the authority to require

Class Counsel to provide notice to the Class of the pending

motion, and that the Court may permit class members to speak

during the June 29, 2015 motion hearing or to submit written

comments in advance of that hearing.

  A.   The Court Has Authority to Order Class Counsel to Provide
       Notice to the Class and to Solicit Written and Oral
       Comments from the Class.

  Although Rule 23(e) does not apply to the pending motion, the

Court has the authority to follow similar procedures in

connection with Class Counsel’s motion.

  As to notice, this authority rests on two sources: First,

Federal Rule of Civil Procedure 23(d)(1)(B) permits the Court to




                               17
“require—to protect class members and fairly conduct the action—

giving appropriate notice to some or all class members of: (i)

any step in the action.” Second, the Settlement Agreement

provides that it “may be modified only with the written

agreement of the Parties and with the approval of the District

Court, upon such notice to the Class, if any, as the District

Court may require.” Agreement, ECF No. 621-2 ¶ XIV (p. 53)

(emphasis added).

  As Class Counsel and the government concede, the Court has

ample authority to order that notice be provided to the Class.

See Class Counsel’s Br., ECF No. 731 at 6–7; Gov’t’s Br., ECF

No. 730 at 3–4. Pursuant to Rule 23(d)(1)(B), the Court finds

that, to “fairly conduct the action” at this stage, class

members must be informed fully about the pending proceedings.

Even in the absence of Rule 23(d), the Court would exercise the

discretion granted to it by the Settlement Agreement because the

extensive interest in these proceedings, as evidenced by the

volume of correspondence the Court has received and the

significant attendance at status hearings the Court has held,

makes clear that it is appropriate and necessary to ensure that

the Class is as informed as possible about upcoming proceedings.

  Although the Court is not empowered to hold a Rule 23(e)

fairness hearing, the Court retains the authority to hear from

any class member who wishes to speak during the June 29, 2015


                               18
motion hearing. Cf. Landis v. N. Am. Co., 299 U.S. 248, 254

(1936) (describing the “power inherent in every court to control

the disposition of the causes on its docket with economy of time

and effort for itself, for counsel, and for litigants”). Hearing

these comments—or receiving written comments from those who

cannot attend—will be useful to the Court’s consideration of the

pending motions. See Keepseagle II, 2015 WL 1851093, at *11.

Class Counsel and the government, moreover, do not oppose this

approach. See Class Counsel’s Br., ECF No. 731 at 6–7; Gov’t’s

Br., ECF No. 730 at 4.

  B.   Class Counsel Shall Provide Notice of the Posture of this
       Case and the Class’s Ability to Provide Comment.

  The final question briefed by the parties and the amici is the

appropriate content and form of any notice ordered by the Court.

Three issues arise from these pleadings: (1) the content of the

notice; (2) the manner of its distribution; and (3) who should

bear the cost of providing the notice.

  Content of the Notice: The government, Class Counsel, and the

amici agree that the notice should be tailored to the

modification proposal pending before the Court. They do not

dispute that the notice should describe: (a) the class and its

claims; (b) the history of this case and the fact that the

notice relates to a proposed modification of a preexisting

Settlement Agreement and that no claims process is yet being




                               19
reopened; (c) the proposed modification and the trustee

nominations that have been made; (d) the hearing that the Court

has scheduled, including a discussion of a class member’s right

to file written comments or to speak in Court; and (e) a link to

the IndianFarmClass.com website. See Class Counsel’s Br., ECF

No. 731 at 7–8; Gov’t Br., ECF No. 730 at 4; Great Plains Br.,

ECF No. 741 at 10. The Court will direct Class Counsel to file

for Court approval a proposed Notice to conform with these

requirements.

  The Great Plains amici request that the notice also include a

copy of the motion for modification of the Settlement Agreement

and copies of two declarations that were submitted regarding the

investment of the leftover settlement funds. See Great Plains

Br., ECF No. 741 at 10. The Court agrees with Class Counsel that

this is unnecessary—even the original settlement notice did not

include a copy of the full Settlement Agreement. See Class

Counsel Reply, ECF No. 742 at 4–5. The purpose of the notice is

to provide a summary of relevant information, so complete copies

of documents need not be included.

  Distribution of the Notice: Class Counsel and the government

emphasize that notice should be distributed to all class

members. See Class Counsel Reply, ECF No. 742 at 3–4; Gov’t

Reply, ECF No. 743 at 2–3. The Great Plains amici appear to

suggest that notice be limited to “all claimants,” implying that


                               20
it should go only to those who filed claims under the Settlement

Agreement. See Great Plains Br., ECF No. 741 at 10. The Class,

however, includes members who did not file claims, so it would

be improper to limit the notice in that manner.

  As for the method of distribution, the Court will direct that

a more limited version of the distribution conducted in

connection with the original settlement notice be undertaken.

Publication notice is appropriate, but need only occur for one

day rather than for multiple days. The Court agrees with Class

Counsel that “notice can be sent by mail to all persons who

filed claims, as well as addresses obtained for the original

2010 mailing” and that “notice would also be posted on the

website IndianFarmClass.com.” Class Counsel Br., ECF No. 731 at

9. The Court also agrees with the suggestion of the amici that

notice be mailed and e-mailed “to tribal offices for those

tribes whose members filed claims, with a request that such

information be made available for inspection and posted to

tribal websites.” Great Plains Br., ECF No. 741 at 11.

  Cost: Class Counsel and the government appear to dispute who

should bear the cost of providing the notice. Class Counsel rely

on the Settlement Agreement, which provided government-funded

“Implementation Costs” of up to four payments of $5,000,000

each. See Agreement, ECF No. 621-2 ¶¶ VII.B–C (pp. 16–17); Class

Counsel Br., ECF No. 731 at 10. According to Class Counsel, one


                               21
of these $5,000,000 payments is not yet exhausted, leaving

$1,500,000 to be used. See Class Counsel Br., ECF No. 731 at 10.

The government appears to disagree, noting that the Agreement

defined “Implementation Costs” as “the administrative costs

associated with implementing this Settlement Agreement,

including the fees and costs of the Track A and Track B

Neutrals, the Track B Expert, the Claims Administrator, costs

incurred under Section IX, and the costs necessary to provide

notice of this Settlement Agreement to the Class.” Id. ¶ II.Y

(p. 8); see Gov’t Br., ECF No. 730 at 5 n.2. It is not clear,

however, whether the government opposes Class Counsel’s proposed

use of the $1,500,000 leftover from earlier implementation

payments. Accordingly, the Court declines to address the cost

issue unless and until it becomes necessary—either because the

government disputes Class Counsel’s ability to utilize the

remaining $1,500,000, or if the costs of providing the

supplemental notice exceed $1,500,000.

IV.   Conclusion

  For the foregoing reasons, the Court finds that Federal Rule

of Civil Procedure 23(e) does not apply, but that the Settlement

Agreement and the Court’s supervisory authority over this case

permit the Court to direct that Class Counsel provide notice to

the Class, and to allow class members to submit written comments

or to speak during the hearing to be held on June 29, 2015 at


                               22
9:00 a.m. An appropriate Order accompanies this Memorandum

Opinion.

  SO ORDERED.

Signed:    Emmet G. Sullivan
           United States District Judge
           May 4, 2015




                                23
