         11-3272-cv(L)
         Oneida Indian Nation of N.Y. State v. Cnty. of Oneida

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20th day of November, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                DENNY CHIN,
 8                         Circuit Judges,
 9                DAVID G. LARIMER,
10                         District Judge.*
11
12
13       ONEIDA INDIAN NATION OF NEW YORK STATE,
14       AKA ONEIDA INDIAN NATION OF NEW YORK,
15       AKA ONEIDA INDIANS OF NEW YORK, ONEIDA
16       INDIAN NATION OF WISCONSIN, AKA ONEIDA
17       TRIBE OF INDIANS OF WISCONSIN,
18
19                             Plaintiffs-Appellees,
20
21       ONEIDA OF THE THAMES COUNCIL,
22
23                             Plaintiff,
24
25       THAMES BAND OF CANADA (ONEIDA),
26
27                             Plaintiff-Counter Defendant,
28
29       UNITED STATES OF AMERICA, NEW YORK

                *
                The Honorable David G. Larimer, of the United States
         District Court for the Western District of New York, sitting by
         designation.
 1   BROTHERTOWN INDIAN NATION, BY MAURICE
 2   "STORM" CHAMPLAIN, VICE CHIEF,
 3
 4                      Intervenor Plaintiffs,
 5
 6               -v.-                              11-3272-cv (Lead)
 7                                                 11-3275-cv (Con)
 8   BOND SCHOENECK & KING, PLLC,
 9
10                      Appellant,
11
12   COUNTY OF ONEIDA, NEW YORK, COUNTY OF
13   MADISON, NEW YORK,
14
15                      Defendants-Third-Party Plaintiffs,
16
17   STATE OF NEW YORK,
18
19                      Defendants-Counter Claimants.
20
21
22   FOR APPELLANT:                  Hermes Fernandez, Arthur J.
23                                   Siegel, Clifford G. Tsan, Bond,
24                                   Schoeneck & King, PLLC, Albany,
25                                   NY.
26
27   FOR PLAINTIFFS-APPELLEES:       Michael R. Smith, David A.
28                                   Reiser, Zuckerman Spaeder LLP,
29                                   Washington, DC; Arlinda F.
30                                   Locklear, Washington, DC.
31
32        Appeal from the United States District Court for the
33   Northern District of New York (Kahn, J.; Treece, M.J.).
34
35       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

36   AND DECREED that the decision and order of the United States

37   District Court for the Northern District of New York is

38   AFFIRMED.

39


                                       2
1        Appellant Bond, Schoeneck & King, PLLC (“BSK”) appeals

2    from a decision and order of the United States District

3    Court for the Northern District of New York (Kahn, J.;

4    Treece, M.J.), granting BSK’s motion to have the court

5    recognize its fee pursuant to a retainer agreement with

6    Plaintiffs-Appellees Oneida Indian Nation of New York and

7    Oneida Indian Nation of Wisconsin (“Oneidas”).       The district

8    court adopted Magistrate Judge Treece’s report-

9    recommendation and order in its entirety and awarded BSK

10   $5,174 for its twelve-year representation of the Oneidas.

11   The panel has reviewed the briefs and the record in this

12   appeal and agrees unanimously that oral argument is

13   unnecessary because “the facts and legal arguments [have

14   been] adequately presented in the briefs and record, and the

15   decisional process would not be significantly aided by oral

16   argument.”    Fed. R. App. P. 34(a)(2)(C).     We assume the

17   parties’ familiarity with the underlying facts, the

18   procedural history, and the issues presented for review.

19       This Court reviews a district court’s decision as to

20   the amount of an attorneys’ fee award for abuse of

21   discretion.    See Louis Vuitton Malletier S.A. v. LY USA,

22   Inc., 676 F.3d 83, 105 (2d Cir. 2012).       On appeal, BSK


                                    3
1    principally argues that the district court erred by

2    calculating its fee as a percentage of the Oneidas’ final

3    damages award instead of assessing the fee via principles of

4    quantum meruit.1   In the alternative, BSK argues that any

5    percentage-based fee should be applied to the Oneidas’ total

6    “amounts recovered,” including the Oneidas’ successful

7    ventures that followed from BSK’s Supreme Court victory

8    establishing federal jurisdiction over the Oneidas’ land

9    claims.   See Oneida Indian Nation of N.Y. State v. Cnty. of

10   Oneida, 414 U.S. 661 (1974).    We affirm for reasons given by

11   the district court.

12        In 1966, BSK agreed to represent the Oneidas in pursuit

13   of their land claims against New York State and its

14   political subdivisions.    BSK drafted a retainer agreement to

15   that effect.   As approved by the Secretary of the Interior

16   (pursuant to 25 U.S.C. § 81), the amended agreement provides

17   BSK a fee of twenty per cent of the first million dollars in

18   “amounts recovered” by the Oneidas and ten per cent of any

19   additional recovery.   In the event that the representation

20   terminated prematurely, the amended agreement entitles BSK

          1
            BSK waived its argument that the firm is entitled to
     prejudgment interest by failing to object to Magistrate Judge
     Treece’s report-recommendation on this ground. See Small v.
     Sec’y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).

                                    4
1    to “such share in the attorney fee as the court or tribunal

2    finally determining the Oneidas’ claim may determine to be

3    equitable.”    BSK successfully represented the Oneidas

4    through 1978, at which time the firm withdrew due to a

5    conflict of interest:    the Oneidas sought to commence

6    actions for ejectment against private landowners, a group

7    which included some BSK attorneys, their families and their

8    clients.

9        Prior to the conclusion of the Oneidas’ litigation over

10   its land claims in January 2011, BSK moved for the court to

11   recognize its right to a fee pursuant to the retainer

12   agreement.    Magistrate Judge Treece determined that the

13   retainer agreement controlled and that BSK was entitled to

14   an “equitable share in the attorney fee” the firm would have

15   received had it stayed with the representation through 2011

16   – the contingency fee.    The court reduced BSK’s fee by fifty

17   per cent in light of the firm’s withdrawal from the

18   representation in 1978, more than thirty years before its

19   conclusion, and further reduced the remaining share by ten

20   per cent due to BSK’s improper representation of conflicting

21   interests with respect to its former client post-1978.      The

22   court awarded BSK $5,174, equivalent to nine per cent of the


                                    5
1    Oneidas’ $57,494 recovery from the two cases BSK brought on

2    the Oneidas’ behalf.

3        Magistrate Judge Treece correctly determined that the

4    retainer agreement entitles BSK to an equitable share in the

5    contingency fee the firm would have received absent

6    withdrawing from the representation.   Even if we were to

7    read this language as ambiguous, both extrinsic evidence and

8    public policy considerations compel the same result.     See,

9    e.g., Shaw v. Mfrs. Hanover Trust Co., 499 N.E.2d 864, 866

10   (N.Y. 1986) (placing the burden on attorneys to ensure

11   clarity in contingent fee arrangements).   This is

12   particularly so in light of the fact that it was apparently

13   BSK that drafted the Retainer Agreement.   See RLS Assocs.,

14   LLC v. United Bank of Kuwait PLC, 380 F.3d 704, 712 (2d Cir.

15   2004).

16       For similar reasons, we reject BSK’s alternative

17   argument that the “amounts recovered” from which it derives

18   its share include more than monetary damages.    See Matter of

19   Seigel, 754 N.Y.S.2d 300, 301 (2d Dep’t 2002).   The retainer

20   agreement provides for BSK to recover a percentage of

21   “amounts recovered by the Nation from the State of New York”

22   or other governmental bodies, “on account of [a] claim” in


                                  6
1    connection with which BSK represented the Oneidas or

2    rendered them advice.   There is no suggestion in that

3    language that BSK’s fee could be based on the Oneidas’

4    business revenues, simply because those revenues arguably

5    have some attenuated relationship with BSK’s prior

6    representation.   This conclusion is buttressed by the fact

7    that BSK’s representation of the Oneidas could not have

8    extended to seeking restoration of title to Indian lands

9    because of the firm’s underlying ethical conflict.     The

10   court did not abuse its discretion in calculating BSK’s fee

11   pursuant to the retainer agreement; an evidentiary hearing

12   was not necessary for the court to interpret the plain

13   language of the agreement.

14       For the foregoing reasons, the decision and order of

15   the district court is hereby AFFIRMED.

16
17
18                                FOR THE COURT:
19                                Catherine O’Hagan Wolfe, Clerk
20
21




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