May 2, 2008  

Contacts: John Zippert 205 652 9676
Heather Gray 404 765 0991

Challenges in the Black Farmer Lawsuit Now Addressed in Congress
Alabama Civil Rights Attorney Rose Sanders Explores issues in the Legislation

ATLANTA…. Passage of the 2007 US Farm Bill is pending and is presently in a Congressional conference. There are provisions in versions of both the Senate and House Farm Bill that passed prior to the conference that might assist thousands of Black farmers who filed a "petition" for a late claim in the class action lawsuit (Pigford v Schafer) against the USDA. These individuals were denied the opportunity to actually file a claim and the legislation is meant to provide an opportunity for them to participate. There is, however, uncertainty about what the final version of the Farm Bill might contain.
Since the inception of the Pigford Lawsuit in the 1990’s against the USDA the Federation of Southern Cooperatives/Land Assistance Fund (Federation/LAF) has assisted some 2,000 farmers throughout the South at every level of this case to ensure that they receive justice. We have also assisted farmers who were turned down at the first level to file an appeal.  Many have been successful. We have also helped farmers to secure “injunctive relief” and secure new loans from USDA on a priority basis, although this has been a difficult process and reflecting that that USDA has resisted systemic changes that were at the heart of this litigation. We have also advocated in Congress for farmers who have been denied an opportunity for their claims of discrimination to be addressed.
PART  I of this release will include recommendations on what should be included in the Pigford provisions of the Farm Bill. PART II will be a transcription of comments by Attorney Rose Sanders from Selma, Alabama who has been central to the class action lawsuit.
PART I - Recommendations for the Black Farmer Lawsuit Provisions in the Farm Bill

(1) $100 Million Cap Should be Lifted: We hope that the conference committee reconciles the House and Senate versions of the legislation and will support the Senate version which provides for additional appropriations if the $100 million limit is reached and more claimants are petitioning for funds.
(2) Filing Deadline: There should be a deadline of no more than two years from the time the Pigford provision in the Bill is enacted, so that this case is not open ended.
(3) Lawsuit Court Proceedings:  We support the Senate provision which would mean that all of the litigation would be conducted in U.S. District Court for the District of Columbia which has the most experience with this case. Having the proceedings in one court would also prevent many different filings throughout the country as well as prevent additional court costs.
(4) Notice to Late Filers: The legislation should include wording that an official notice be sent to each of the eligible late claim filers regarding the new opportunities available for them in the Farm Bill provisions. The class action facilitator* already has these names as late filers have been given a tracking number.
(5) Others to be Included in the Pigford Lawsuit:

  • We want to see included in this legislation the approximately 7,000 people who filed a late claim petition within 30 days of the September 15, 2000 deadline - most of whom received a tracking number.
  • We want to see included the approximately 300 people who filed a claim in the case who were turned down but were not able to file their appeals on timely bases for reasons beyond their control.

    (6) Attorney Fees should be Offered: Everyone in the case should have access to an attorney and the advantage of the Pigford case was that farmers who prevailed were able to keep the $50,000 they received because the attorneys were paid by the government, as authorized under federal law. Under current law, in civil rights cases the government pays the fees of those who win. We think that because of the unique nature of this case that the Congressional legislation should provide for reasonable fees to be paid to attorneys who assist the late filers whether they win or lose.
    PART II: Alabama Civil Rights Attorney Rose Sanders Explores Issues in the Pigford Legislation

    NOTE: As a prelude to Attorney Rose Sanders comments, here is some background of the case and challenges faced in the present Congressional legislation on Pigford. Included is the (1) Pigford Black Farmer Class Action Lawsuit (2) Challenges for Farmers in the New Legislation (3) How Much Money will be Available for Black Farmers? (4) Attorneys and Their Fees

    Pigford Black Farmer Class Action Lawsuit
    Black farmers filed the lawsuit against the USDA because they suffered discrimination from the USDA in terms of credit opportunities, as well as lack of information and access to USDA farm programs. The farmers prevailed in the lawsuit, which was settled on April 14, 1999.
    Due to any number of reasons such as lack of notification, health and weather problems, many likely class members were not able to file claims at the initial deadline of October 12, 1999. Due to this, the U.S. District Court provided an opportunity for them. The court ruled that by September 15, 2000 farmers could attempt to explain why the deadline was missed and if approved they could then file a claim in the Pigford lawsuit.
    There were 22,709 eligible class members who filed by the October 12, 1999 deadline. An additional 65,989 farmers filed an application to explain the “extraordinary” circumstances as to why the October 12 deadline was missed. Of the 65,989 farmers only 2,119 were approved and given the opportunity to file a claim. A staggering 63,865 Black farmers were not able to do so.
    It is the lack of opportunity for the 63,865 farmers that now concerns many in Congress. To address this concern, a provision to assist these thousands of farmers has been inserted in the recent Farm Bill.
    Challenges for Farmers in the New Legislation
    The Congressional Legislation presents challenges and difficulties for farmers that were not present in the original lawsuit.. In fact, there are two choices for class members who file an action under the new legislation.

    First, they could file a normal lawsuit in federal court. The burden of proof for the class member would be the same as in most civil cases: “a preponderance of evidence.” Such lawsuits can be difficult to win and very expensive. If the class member wins, damages awarded by the courts might be very low or very high. It is also possible that the government would attempt to settle the case instead of taking it to trial.
    Second, both bills allow late-filing class members another choice. They could file for what the legislation calls an “expedited” resolution in federal court. In an expedited case, the class member would seek what are called “liquidated damages” of $50,000, possible discharge of some farm loan debt owed to USDA, and a tax payment to the IRS on behalf of the class member of 25 percent of the liquidated damages and principal debt discharged.
    In the expedited resolution, the class member would prevail if he or she was able to show discrimination by “substantial evidence.” The Senate bill defines substantial evidence from the definition found in Pigford,**, and this definition is favorable for class members. The House version leaves the substantial evidence undefined.
    In an expedited case, the Judge would decide the case based on a review of documents submitted by the class member and the government, and would not hold a trial or listen to testimony in court.
    The expedited case provisions are somewhat similar to those found in Track A of Pigford. Unlike Track A in Pigford, however, in this legislation only credit claims are possible. Noncredit claims, such as for disaster benefits, or conservation payments, are not allowed. In addition, there is no Injunctive Relief for class members, as was provided for in Pigford. Priority consideration for a new loan, and increased rights to technical assistance, therefore, would not be available for prevailing class members.
    In other words, the class member would have to choose between, on one hand, a normal lawsuit with the possibility of winning unlimited damages using a tougher burden of proof, and, on the other hand, an expedited process in which the burden of proof for the class member would be much lower, but the possible damages would be set in advance.
    How Much Money will be Available for Black Farmers?
    In the original Pigford case farmers who prevailed in Track A, which did not require a preponderance of evidence, received $50,000 plus $12,500 to the IRS for tax purposes for a total of $62,500 per farmer. At present both bills in Congress are touting $100 million as the amount of money to be devoted for the additional farmers in the class action suit. With that figure only 1,600 farmers could be assisted.
    The funding discussion in the bills is confusing. In the original Pigford case, there was no cap on the total amount that prevailing claimants could receive.
    The House version appears to set a cap of $100 million for the bill for fiscal year 2008. The money is to come from the Commodity Credit Corporation, and may not come from the Judgment Fund. Judgment Fund spending, which was the source of money paid to claimants in Pigford, does not come from the USDA and does not affect other farm program spending.
    The Senate version also includes the House language that provides that $100 million come from the Commodity Credit Corporation for fiscal year 2008. The Senate bill, however, also authorizes that additional funds may be appropriated as are necessary to carry out the Pigford provisions.
    A strict cap of $100 million would seem to be in conflict with the remaining parts of the Pigford provisions. If, as seems possible, the awards to class members go beyond $100 million, class members would have a cause of action, but the government might not have the means to pay if a considerable number of the class members win.
    Attorneys and Their Fees
    Neither version of the Farm Bill addresses attorney fees. In Pigford, lawyers were not allowed to charge claimants for assistance in filling out Claim Sheets and Election Forms. Class counsel were also not allowed to charge claimants for work done to implement the settlement. Instead, attorneys could seek fees and costs under the federal fee shifting statutes (Equal Access to Justice Act and the Equal Credit Opportunity Act). While these fee arrangements have created conflicts between the government and class counsel, in the end attorneys have received several million dollars in fees from the government that did not come out of the award provided to class members.
    None of this type of arrangement is included in the Farm Bill language. As a result, attorneys seeking to represent class members in the new litigation may seek money from the class members themselves. Unfortunately, agreements that give lawyers a third or more of the class member award are already circulating, and would require the class member to pay the expenses of the attorney even if the class member loses his or her case.

To better understand the Pigford case along with the time-lines please go to:

Transcribed Presentation of Attorney Rose Sanders
February 9, 2008

ALBANY, GA….Attorney Rose Sanders shared the comments below with farmers attending the Federation of Southern Cooperatives/Land Assistance Fund’s “Farmers Conference” in Albany, Georgia in February 2008. She addresses the challenges of the Pigford legislation in Congress now attached to the Farm Bill.
Corrections to Lawsuit Proposed in 2007 Farm Bill
In the Pigford lawsuit some 65,000 farmers got left out. Let me tell you what’s going to happen if this legislation on the Pigford case passes Congress.
This legislation hasn’t passed yet. The leadership of the Federation has done a lot – but it will take more than the leadership. It needs to take the people along with the Federation to make sure this legislation is right. We need to make sure there is some pressure to make this right.
For one, some of those who will be left out of Pigford are dead, but their families still suffer from the discrimination. It will be almost impossible to win claims under this new lawsuit if you are dead. Under Pigford we could win these cases because the standard was such that if you were dead your wife or somebody could fill out an affidavit for you…give the proper information. You could still win. If you have a dead parent or spouse (who was discriminated against) now it will be very hard under this new legislation to win.
Let me tell you another reason why I’m concerned. This new litigation has a lot of flaws, but I really do believe our Congressmen did the best they could under the circumstances. It’s so easy to attack and say they could have done more. But I think given the conservative Congress and the budget cuts; I really think they did their best without your help. However, it could have been better if the masses had raised their voices.
One of the reasons it might be hard for us – the attorneys - to be a part of this litigation is that our people turn on us what they get upset. It amazed me that during the Pigford case the farmers turned on the lawyers. They didn’t turn on the people at the USDA who had the authority to do something. They turned on us and they’ll do it again.
But you should know up front what the flaws are. There’s a 100 million dollar cap. If in Pigford it took 1 billion dollars to pay 14,000 people, what will it take to deal with 65,000? You do the math. Somebody’s going to left out and who do you think they’re going to blame? We need the Federation and folks like you explain the limitations of this lawsuit?
Another problem is that there’s no time limitation. It’s absolutely ridiculous not to have a time limitation. The new legislation doesn’t say this has to be filed in one year or two years. There’s a limited amount of money. A fair judge would not distribute this money until everyone who can apply will apply. So with no time limitation it could take 5 or 6 years. I think they’ll change that. That’s crazy – there is a limited amount of money and the judge is not likely to distribute money until all the people who can, have filed in the lawsuit.
The good news is that if the Senate bill passes we’re not going to have to look for the white farmer. That’s what took the most work – looking for the (similarly situated) white farmer. Under that part of the bill they’ll have to give us the white farmer (information). That’s good news. That means the lawyers don’t have to do that much of the work. So why should the lawyers be asking farmers to sign a contract giving the lawyer one third when a lot of the work has to be done by the government?
That’s why it’s up to you to tell your constituency “Do not sign these contracts (with lawyers)!” Not only are clients asked to pay a third, they are being asked to pay expenses no matter what those expenses might be whether the client wins or loses in the case.
What is an expense? It’s not explained in the contract. Expenses could be a 41-cent stamp to flying all over the world trying to recruit clients, all the telephone calls trying to get information. It is possible people could be charged up to $500 or $1,000.
Now in order to qualify for this new legislation, you will have to have a tracking number  - the 65,000 people have a tracking number (because they are on record for attempting to file late). There might have been some mistakes made by Poorman-Douglas** on not providing some farmers a tracking number and that would be a technical problem.
A lot of people won’t qualify. If they don’t have a tracking number they should not pay an attorney a fee to participate in this case and then perhaps also have to pay attorney expenses.
Who is going to protect the people from themselves? The Federation. You in the Federation have to take the responsibility to protect the people.
I tried to explain to farmers about the problems with these attorneys asking for money upfront and expenses, but since I didn’t give them a contract I think they felt they weren’t protected. So when you try to be an honest lawyer they don’t trust you. So they have to trust people like you.
Some farmers who have got their money are being told that if they pay the attorneys another $500 that they can get in the lawsuit again. With this legislation they need to know that anyone who filed something after September 15, 2000 is out.
If you’re not one of the persons who filed a late claim you should not pay an attorney now to get you in the case.
Let me say this, if the lawsuit stays at $100 million nobody’s going to get $50,000. Let’s say out of 65,000 people 20,000 you can’t find, so maybe you’re left with 30,000 people. At most, people would receive $15,000 so if you agreed to give the lawyer 1/3 you would get 10,000 and the lawyer would get 5,000.
Now, the legislation does talk about additional appropriations. It may happen. It may not happen. We know if McCain gets into office it will not happen. Even if a Democrat gets into office it may not happen.
Under this new bill there are two ways you can file. The Senate bill says you have to file in Washington, DC and the other bill says you can file anywhere. That’s a terrible problem. Because normally to file you have to pay filing fees that can sometimes be $500, then there would be subpoena fees….
Of those 65,000 filers do you know how many would have attorneys who are going to pay those fees?
What the lawyers plan to do is to file a class action for everybody. Whether or not a court will certify a class action some say is doubtful. That’s not going to happen – in the women’s, Hispanic and the Native American lawsuits the court refused to certify a class. So you’re talking about major problems.
People can’t think they’ll get a quick fix even it the legislation passes tomorrow. I also doubt seriously that unless the cap is removed that people will get $50,000. For $50,000 plus taxes there will simply not be enough money and people are going to get mad.
The Federation should get the word out. People are going to feel cheated and they’ll turn on the people who are trying to help them. You can’t stop it but you can minimize it.
The first strategy session should be on “can we use any influence in the Congressional conference?” The House has passed a version and the Senate was passed a version and it’s in conference where they come up with something of mutual satisfaction. We can use pressure at this point. It will take a commitment. But if you don’t have that at least you need to let the people know that this is not enough. People need to know that they might need to share the pot and that it is the government, not the Federation, it is the Government, not the lawyers, that are responsible here.
We (class counsel) are still reluctant to get into this because people are just not going to be satisfied. And if they’re not properly informed they’re going to think that the people who are trying to help them are the ones who cheated them.
This new case is federal/specific legislation. What it does is give you a cause of action. You have to file a lawsuit. It’s not a claim process. They have created a cause of action for 65,000 people only.
Some people lost this lawsuit because they didn’t have attorneys. They were living in places where they didn’t have the Federation or attorneys. We think that every person should have a right to an attorney.
It is our position that we do represent the class of late filers. We filled late claims. We did things for people. But the lawyers outside of us are saying “Oh no, those are 65,000 individual cases and we’ve go the right to file a class action law suit on their behalf!”
It’s our position that the 65,000 late filers are part of the Pigford class. If we were successful in arguing to a judge that these 65,000 are already part of the class then the class has been certified and that’s one strategy we are considering.
Some people lost in the lawsuit because they didn’t have an attorney. And now you’ve got 65,000 people. People have to have access to attorneys. What I’m concerned about is that when we put in the Pigford case that attorneys couldn’t charge, what it did was that a lot of people couldn’t get help. Now, I don’t think there’s anything wrong with the attorneys charging a percentage, but I think a third is too much. A lot of the cases will be lost and those people won’t  get paid anything so the attorneys do have to even it out.
What would be good is for the advocates like the Federation to come up with a formula to recommend to people and the lawyers. We think that every person should have a right to an attorney.
* 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.

** (As defined in the PIgford Consent Decree) 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.

Note: The Federation/LAF, now in its 40th year,  assists Black family farmers across the South with farm management, debt restructuring, alternative crop suggestions, marketing expertise and a whole range of services to ensure family farm survivability. 
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