Petition for Writ of Certiorari — Nagel Rice, LLP, et al., Petitioners v. Volkswagen Group of America, Inc., et al.
Supreme Court briefMay 29, 2019
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No. 18In the
Supreme Court of the United States
IN RE VOLKSWAGEN “CLEAN DIESEL”
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION.
––––––––––––––––––––––––––––––
NAGEL RICE, LLP, et al.,
Petitioners,
v.
VOLKSWAGEN GROUP OF AMERICA, INC., et al.,
Respondents.
On Petition for a Writ of Certiorari to the United
States Court of A ppeals for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
Bruce H. Nagel
Counsel of Record
Diane E. Sammons
Nagel Rice, LLP
103 Eisenhower Parkway
Roseland, NJ 07068
(973) 618-0400
bnagel@nagelrice.com
Counsel for Petitioners
288798
A
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
This Court has never addressed two important
questions in class action litigation. First, whether nonclass counsel is entitled to an award of counsel fees and
costs pursuant to Fed. R. Civ. P. 23(h) for work performed
prior to the appointment of lead counsel where that work
is identical to the pre-appointment work performed
by appointed counsel. Second, whether a class action
settlement agreement which only provided fees and costs
to class counsel for pre-appointment work creates two
unequal plaintiff classes.
A fter a public announcement that Volkswagen
companies used emissions defeat devices, 451 class actions
were filed in approximately sixty districts around the
country. Within months of the filings, the MDL court
appointed lead counsel and 22 firms to serve on the
plaintiffs’ steering committee (“class counsel”) and five
months later, a $10 billion dollar settlement was reached
that ultimately resulted in the payment of $175 million in
attorneys’ fees and costs to only the leadership structure.
The District Court approved a multiplier of 2.63 to the
total lodestar of the select firms for both pre and postappointment work performed deeming the work to be
valuable to the class. Months later the District Court
denied every single fee application from non-class counsel
for identical pre-appointment work. Because the motion for
attorneys’ fees and costs by non-class counsel was decided
after final approval, class members represented by nonclass counsel could not exercise their rights to object
to the settlement. The Ninth Circuit Court of Appeals
affirmance has raised issues for review:
A. Does denying fees and costs to non-class counsel
for pre-appointment work while awarding fees
ii
and costs to class counsel for identical work create
a conflict among the Circuits warranting this
Court’s review based upon Gottlieb v. Barry, 43
F.3d 474, 489 (10 th Cir. 1994) and In re Cendant
Corp. Securities Litigation, 404 F.3d 173, 179 (3rd
Cir. 2005)?
B. Does the award of attorneys’ fees and costs only
to class counsel for pre-appointment work run
afoul of this court’s decision in Boeing Co. v. Van
Gemert, 444 U.S. 472, 478 (1980) and Amchem
Products Inc. v. Windsor, 521 U.S. 591, 627 (1997)
by creating two unequal plaintiff classes: one
whose recovery is reduced by attorneys’ fees and
costs and another, represented by select counsel,
who get the full benefit of the recovery with no
reduction for fees and costs?
C. Does this decision create a conflict of interest
for class counsel resulting in a constitutional
infirmity as articulated in Amchem, 521 U.S. at
626, n.20 and Ortiz v. Fibreboard Corp., 527 U.S.
815, 856 (1999) by denying non-class counsels’
clients their due process right to adequate
representation?
D. Does the denial of a fee award and costs to nonclass counsel where the court fails to articulate
an objective basis for its denial run afoul of this
Court’s decision in Perdue v. Kenny A. ex rel.
Winn., 559 U.S. 542, 558 (2010)?
iii
LIST OF PARTIES
The following list provides the names of all the parties
to the proceedings below:
Petitioner Nagel Rice, LLP was counsel for the
plaintiffs A ri Levin, et als. in the District Court
proceedings below and plaintiffs in the motion for legal
fees and costs in the court proceeding below and ObjectorAppellant in the Court of Appeals proceedings.
Petitioner Hyde & Swigart was counsel for the
plaintiffs Charles Hise, et als. in the District Court
proceedings below and plaintiff in the motion for legal
fees and costs below and Objector-Appellant in the Court
of Appeals proceedings.
Petitioner, Paul S. Rothstein, Esq. was counsel for
plaintiff Scott Siewert in the District Court proceedings
below and plaintiff in the motion for legal fees and costs
below and Objector-Appellant in the Court of Appeals
proceedings.
Petitioner, The Driscoll Firm, P.C. was counsel for
the plaintiffs Aaron Fries, et als. in the District Court
proceedings below and plaintiff in the motion for legal
fees and costs below and Objector-Appellant in the Court
of Appeals proceedings.
Petitioner, Law Offices of Maloney & Campolo was
counsel for the plaintiffs John Adams, et als. in the District
Court proceedings below and movants in the motion for
legal fees and costs below and Objector-Appellant in the
Court of Appeals proceedings.
iv
Petitioners, Law Office of Samuel W. Bearman;
Sellers, Skievaski Kuder, LLP and Artice L. McGraw, PA
were counsel for the plaintiffs/movants Jeremy Adams, et
als. in the District Court proceedings below and plaintiffs
in the motion for legal fees and costs below and ObjectorAppellant in the Court of Appeals proceedings.
Petitioner, Strong Law Offices was counsel for the
class members Harry Andrianos, et als. in the District
Court proceedings below and plaintiffs in the motion for
legal fees and costs below and Objector-Appellant in the
Court of Appeals proceedings.
Petitioners, Habush & Rottier, S.C. and Hawks
Quindel, S.C. were counsel for the plaintiffs LaBudda, et
als. in the District Court proceedings below and plaintiffs
in the motion for legal fees and costs below and ObjectorAppellant in the Court of Appeals proceedings.
Petitioner, Makarem & Associates was counsel for
the plaintiffs Jujila Gelazis, et als. in the District Court
proceedings below and plaintiffs in the motion for legal
fees and costs below and Objector-Appellant in the Court
of Appeals proceedings.
Petitioner, Holton Law Firm was counsel for the
plaintiffs Patricia Epperson, et als. in the District Court
proceedings below and plaintiffs in the motion for legal
fees and costs below and Objector-Appellant in the Court
of Appeals proceedings.
Respondents, Jason Hill, Ray Preciado, Susan
Tarrence, Steven R. Thornton, Anne Duncan Argento,
Simon W. Beaven, Juliet Brodie, Sarah Burt, Aimee
v
Epstein, George Farquar, Mark Houle, Rebecca Kaplan,
Helen Koisk-Westly, Raymond Krein, Stephen Verner, Leo
Winternitz, Marcus Alexander Doege, Leslie MacliseKane, Timothy Watson, Farrah P. Bell, Jerry Lawhon,
Michael R. Cruise, John C. Dufurrena, Scott Bahr, Karl
Fry, Cesar Olmos, Britney Lynne Schnathorst, Carla
Berg, Aaron Joy, Eric Davidson White, Floyd Beck
Warren, Thomas J. Buchberger, Russell Evans, Carmel
Rubin, Daniel Sullivan, Matthew Cure, Denise DeFiesta,
Mark Rovner, Wolfgang Steudel, Anne Mahle, David
McCarthy; Scott Moen, Ryan Joseph Schuette, Megan
Walawender, Joseph Morrey, Michael Lorenz, Nancy L.
Stirek, Rebecca Perlmutter, Addison Minott, Richard
Grogan, Alan Bandics, Melani Buchanan Farmer, Kevin
Bedard, Elizabeth Bedard, Cynthia R. Kirtland, Michael
Charles Krimmelbein, Will Harlan, Heather Greenfield,
Thomas W. Ayala, Herbert Yussim, Nicholas Bond, Brian
J. Bialecki, Katherine Mehls, Whitney Powers, Roy
McNeal, Brett Alters, Kelly R. King, Rachel Otto,William
Andrew Wilson, David Ebenstein, Mark Schumacher,
Chad Dial, Joseph Herr, Kurt Mallery, Marion B.
Moore, Laura Swenson and Brian Nicholas Mills were
representative plaintiffs in the District Court proceedings
below and opponents in the motion for legal fees and costs
below and Plaintiffs-Appellees in the Court of Appeals
proceedings Nos. 17-16020; 17-16065; 17-16067; 17-16068;
17-16082; 17-16083; 17-16089; 17-16092; 17-16099; 17-16123;
17-16124; 17-16130; 17-16132; 17-16156; 17-16158; 17-16172;
and 17-16180.
Respondent, Bishop, Heenan & Davies, was counsel for
plaintiff class members in the District Court proceedings
below and Objector-Appellant in the Court of Appeals
proceedings No. 17-16020.
vi
Respondent, James Ben Feinman and Ronald Clark
Fleshman, Jr. were counsel for plaintiff class members
in the District Court proceedings below and ObjectorAppellants in the Court of Appeals proceeding No. 1716067.
Respondent, Lemberg Law, LLC was counsel for
Michael E. Curth, et. als in the District Court proceedings
below and plaintiffs in the motion for legal fees and costs
below and Objector-Appellant in the Court of Appeals
proceeding No. 17-16068.
Respondent, Viles and Beckman, LLC was counsel
for Tamie Smith, et. als in the District Court proceedings
below and plaintiffs in the motion for legal fees and costs
below and Objector-Appellant in the Court of Appeals
proceeding No. 17-16099.
Respondent, Harrell & Nowak, LLC was counsel
for Charles Kert LeBlanc et. als in the District Court
proceedings below and plaintiffs in the motion for legal
fees and costs below and Objector-Appellant in the Court
of Appeals proceeding No. 17-16132.
Respondent, Egolf Ferlic Harwood, LLC was counsel
for Rannae Ross, et.als in the District Court proceedings
below and plaintiffs in the motion for legal fees and costs
below and Objector-Appellant in the Court of Appeals
proceeding No. 17-16156.
Respondent, Ryder Law Firm, P.C. was counsel for
Larry Walls, et. als in the District Court proceedings
below and plaintiffs in the motion for legal fees and costs
below and Objector-Appellant in the Court of Appeals
proceeding No. 17-16158.
vii
Respondent, Volkswagen Group of America, Inc. was
a defendant in the District Court proceedings below and
opponents in the motion for legal fees and costs below and
Plaintiffs-Appellees in the Court of Appeals proceedings
in Nos. 17-16020; 17-16065; 17-16067; 17-16068; 17-16082;
17-16083; 17-16089; 17-16092; 17-16099; 17-16123; 17-16124;
17-16130; 17-16132; 17-16156; 17-16158; 17-16172; and 1716180.
Respondent, Volkswagen, A.G. was a defendant in the
District Court proceedings below and Plaintiffs-Appellees
in the Court Appeal Proceedings Nos. 17-16020; 17-16065;
17-16067; 17-16068; 17-16082; 17-16083; 17-16089; 17-16092;
17-16099; 17-16123; 17-16124; 17-16130; 17-16132; 17-16156;
17-16158; 17-16172; and 17-16180.
Respondent, Audi, A.G. was a defendant in the District
Court proceedings below and Plaintiffs-Appellees in the
Court Appeal proceedings Nos. 17-16020; 17-16065; 1716067; 17-16068; 17-16082; 17-16083; 17-16089; 17-16092;
17-16099; 17-16123; 17-16124; 17-16130; 17-16132; 17-16156;
17-16158; 17-16172; and 17-16180.
Respondent, Audi of America, LLC was a defendant
in the District Court proceedings below and PlaintiffsAppellees in the Court Appeal proceedings Nos. 17-16020;
17-16065; 17-16067; 17-16068; 17-16082; 17-16083; 17-16089;
17-16092; 17-16099; 17-16123; 17-16124; 17-16130; 17-16132;
17-16156; 17-16158; 17-16172; and 17-16180.
Respondent, Porsche Cars North America, Inc. was
a defendant in the District Court proceedings below and
Plaintiffs-Appellees in the Court Appeal proceedings Nos.
17-16020; 17-16065; 17-16067; 17-16068; 17-16082; 17-16083;
viii
17-16089; 17-16092; 17-16099; 17-16123; 17-16124; 17-16130;
17-16132; 17-16156; 17-16158; 17-16172; and 17-16180.
Respondent, Robert Bosch GMBH was a defendant
in the District Court proceedings below and PlaintiffsAppellees in the Court Appeal proceedings Nos. 17-16020;
17-16065; 17-16067; 17-16068; 17-16082; 17-16083; 17-16089;
17-16092; 17-16099; 17-16123; 17-16124; 17-16130; 17-16132;
17-16156; 17-16158; 17-16172; and 17-16180.
Respondent, Robert Bosch, LLC was a defendant
in the District Court proceedings below and PlaintiffsAppellees in the Court Appeal proceedings Nos. 17-16020;
17-16065; 17-16067; 17-16068; 17-16082; 17-16083; 17-16089;
17-16092; 17-16099; 17-16123; 17-16124; 17-16130; 17-16132;
17-16156; 17-16158; 17-16172; and 17-16180.
As to Rule 29.6 compliance, none of petitioners have
parent corporations, nor does any holding company that
is publicly traded own 10 per cent or more of petitioners’
stock.
ix
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . ix
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . xi
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . xii
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . 1
CONSTITUTIONAL PROVISIONS INVOLVED . . . . 1
STATUTORY PROVISIONS OR
PROCEDURAL RULES INVOLVED . . . . . . . . . . . 2
STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . 3
REASONS FOR GRANTING THE PETITION . . . . . 7
I.
R E V I E W I S WA R R A N T E D
W H E R E FA I LU R E T O AWA R D
PRE -A PPOIN T M EN T FEES A ND
COSTS TO NON-CLASS COUNSEL
CREAT ES A CON FLICT A MONG
CIRCUIT COURTS OF APPEAL . . . . . . . . . . . 8
x
Table of Contents
Page
II. REV IEW SHOULD BE GR A NTED
WHERE THE DECISION ACTS TO
CREATE TWO UNEQUAL CLASSES
OF PL A INTIFFS IN V IOL ATION
OF THIS COURT’S PRECEDENT . . . . . . . . . 11
III. T H E R E S U LT OF T H E N I N T H
C I R C U I T ’ S DE C I S ION, W H IC H
LIMITS PAYMENT OF FEES AND
COSTS TO ONLY CLASS COUNSEL,
CR E AT E S A GR O S S C ON F L IC T
OF I N T E R E S T I N V IOL A T ION
OF AMCHEM AND ORTIZ . . . . . . . . . . . . . . . 12
IV. THE DECISION BELOW FAILS TO
OBJECTIVELY EXPLAIN THE BASIS
FOR THE DENIAL OF APPLICATIONS
BY NON- CL A S S C OU NSEL FOR
AN AWARD OF FEES AND COSTS . . . . . . . 15
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
xi
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED JANUARY 22, 2019 . . 1a
APPENDIX B — ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA,
FILED APRIL 24, 2017 . . . . . . . . . . . . . . . . . . . . . . 60a
APPENDIX C — ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA,
FILED NOVEMBER 22, 2016 . . . . . . . . . . . . . . . . 73a
A PPEN DI X D — OR DER OF T H E
UNITED STATES COURT OF APPEALS
FOR T HE NIN T H CIRCU I T, FILED
FEBRUARY 28, 2019 . . . . . . . . . . . . . . . . . . . . . . . . 81a
xii
TABLE OF CITED AUTHORITIES
Page
CASES
Amchem Prod. Inc. v. Windsor,
521 U.S. 591 (1997) . . . . . . . . . . . . . . . . . . . 7, 12, 13, 14
Boeing Co. v. Van Gemert,
444 U.S. 472 (1980) . . . . . . . . . . . . . . . . . . . . . . . 7, 11-12
General Telephone Co. of Southwest v. Falcon,
457 U.S. 147 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Gilbert v. Nat’l Corp. for Hous. Partnerships,
71 Cal. App. 4th 1240 (Cal. Ct. App. 1999) . . . . . . . . 14
Gottlieb v. Barry,
43 F.3d 474 (10th Cir. 1994) . . . . . . . . . . . . . . . . 7, 8, 11
Hansberry v. Lee,
311 U.S. 32 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Hesse v. Sprint Corp.,
598 F.3d 581 (9th Cir. 2010), cert. denied,
562 U.S. 1003 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 14
In re Cendant Corp. Litigation,
404 F.3d 173 (3d Cir. 2005) . . . . . . . . . . . . . . . 6, 7, 8, 11
In re Dry Max Pampers Litigation,
724 F.3d 713 (6th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 12
xiii
Cited Authorities
Page
In re Motor Fuel Temperature
Sales Practices Litig.,
271 F.R.D. 263 (D. Kan. 2010) . . . . . . . . . . . . . . . . . . 12
Larson v. AT&T Mobility LLC,
687 F.3d 109 (3d Cir. 2012) . . . . . . . . . . . . . . . . . . . . . 12
Loughney v. Hickey,
635 F.2d 1063 (3d Cir. 1980) . . . . . . . . . . . . . . . . . . . . 15
Matsubshita Elec. Indus. Co., Ltd. v. Epstein,
516 U.S. 367 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
N.L.R.B. v.
Amalgamated Clothing Workers of America,
430 F.2d 966 (5th Cir. 1970) . . . . . . . . . . . . . . . . . . . . 15
Ortiz v. Fibreboard Corp.,
527 U.S. 615 (1999) . . . . . . . . . . . . . . . . . . . 7, 12, 13, 14
Perdue v. Kenny A. ex rel. Winn.,
559 U.S. 542 (2010) . . . . . . . . . . . . . . . . . . . 8, 16, 17, 18
Phillips Petroleum Co. v. Shutts,
472 U.S. 797 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Radcliffe v. Experian Info. Sols. Inc.,
715 F.3d 1157 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . 14
Rodriguez v. Disner,
688 F.3d 645 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 14
xiv
Cited Authorities
Page
Stetson v. Grissom,
824 F.3d 1157 (9th Cir. 2016) . . . . . . . . . . . . . . . . . . . . 9
United States v. Fisher,
55 F.3d 481 (10th Cir. 1995) . . . . . . . . . . . . . . . . . . . . 15
Zucker v. Occidental Petroleum Corp.,
192 F.3d 1323 (9th Cir. 2000), cert. denied,
529 U.S. 1066 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CONSTITUTION, RULES AND STATUTES
U.S. Const. Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
U.S. Const. Amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Fed. R. Civ. P. 23(h). . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 8
Fed. R. Civ. P. 52(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Fed. R. Civ. P. 54(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Fed. R. Civ. P. 54(d)(2)(D) . . . . . . . . . . . . . . . . . . . . . . . . . 3
OTHER AUTHORITIES
Michael J. Kaufman, Issues with Non-Lead Counsel,
26A Sec. Lit. Damages § 25:4-40 (2018) . . . . . . . . . . . 8
xv
Cited Authorities
Page
Moore et al., 5 Moore’s Federal Practice - Civil
§ 23.25[5][e], (Matthew Bender 3d. ed. 1998) . . . . . 13
1
OPINIONS BELOW
The order of the United States Court of Appeals for
the Ninth Circuit, denying Petitioners’ en banc petition
is reproduced at App. 81a-83a. The opinion of the United
States Court of Appeals for the Ninth Circuit, In re
Volkswagen “Clean Diesel” Marketing, Sales Practice, and
Products Liability Litigation, Lead Case No. 17-16020, is
reported at 914 F.3d 623 (9 th Cir. 2019) and is reproduced
at App. 1a-59a. The opinion of the District Court in In re
Volkswagen “Clean Diesel” Marketing, Sales Practice,
and Products Liability Litigation, Docket No. MDL No.
2672, denying Petitioners’ motion for attorneys’ fees and
costs is unreported is reproduced at App. 60a-72a. The
order of the District Court allowing non-class counsel to
file motions for attorneys’ fees and costs is reproduced at
App. 73a-80a.
STATEMENT OF JURISDICTION
The judgment of the Ninth Circuit was rendered on
January 22, 2019. The Petition for rehearing en banc was
denied on February 28, 2019. The Court has jurisdiction
under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
The Fifth Amendment of the U.S. Constitution
provides:
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a
presentment or indictment of a grand jury,
except in cases arising in the land or naval
forces, or in the militia, when in actual service
2
in time of war or public danger; nor shall any
person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty,
or property, without due process of law; nor
shall private property be taken for public use,
without just compensation.
The Fourteenth Amendment of the U.S. Constitution
provides:
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and the State
wherein they reside. No state shall make
or enforce any law which shall abridge the
privileges or immunities or citizens of the
United States, nor shall any state deprive any
person of life, liberty or property, without due
process or law; nor deny to any person within
its jurisdiction the equal protection of the laws.
STATUTORY PROVISIONS OR
PROCEDURAL RULES INVOLVED
Paragraph h of Rule 23 of Federal Rules of Civil
Procedure provides:
Attorney’s Fees and Nontaxable Costs. 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. The following procedures apply:
3
(1) A claim for an award must be made by
motion under Rule 54(d)(2), subject to the
provisions of this subdivision (h), at a time the
court sets. Notice of the motion must be served
on all parties and, for motions by class counsel,
directed to class members in a reasonable
manner.
(2) A class member, or a party from whom
payment is sought, may object to the motion.
(3) The court may hold a hearing and must find
the facts and state its legal conclusions under
Rule 52(a).
(4) The court may refer issues related to the
amount of the award to a special master or a
magistrate judge, as provided in Rule 54(d)(2)
(D).
STATEMENT OF CASE
Petitioners Nagel Rice, LLP and other law firms
(“Nagel Rice Petitioners”) seek review of a portion of the
decision of the United States Court of Appeals for the
Ninth Circuit, which affirmed the ruling of the District
Court denying petitioners’ motion for pre-appointment
legal fees and costs under Federal Rules of Civil
Procedure 23(h). Starting on or about September 21,
2015, consumers around the country commenced actions
alleging fraud and other claims against Volkswagen Group
of America, Inc., Volkswagen, AG, and AUDI AG (“VW”)
for their utilization of “defeat devices” in certain diesel
vehicles. Nagel Rice Petitioners, representing hundreds
of class members, spearheaded early efforts to litigate
the case. For four months, preceding the appointment
4
of lead counsel and class counsel (collectively, “class
counsel”) Nagel Rice Petitioners and other non-class
counsel were deeply involved in defining legal theories,
drafting and filing complaints, appearing before the
Judicial Panel on Multidistrict Litigation to argue
venue; creating a massive offensive across the country
resulting in upwards of 451 possible related filings in
some sixty districts; participating in attorneys’ continuing
education conferences to weigh and collaborate with other
attorneys to construct the most successful legal theories;
interviewing and advising clients who were immediately
impacted by VW’s actions as they unfolded; initiating and
creating media opportunities for clients to reveal their
individual experiences of deception and harm to the public;
engaging in motion practice to preserve evidence; working
with other attorneys to promote lead attorneys skilled in
class action litigation to best represent the interests of the
class as a whole; moving to consolidate the cases before one
court to promote efficiency in an effort to move towards
a prompt and early resolution; researching possible
international jurisdictional experts; and competing, via
written submissions and oral argument, with hundreds of
attorneys from around the country to be appointed by the
court for a leadership position in the case. On January 21,
2015, the court appointed class counsel and provided for an
order (PTO 7) elaborating that pretrial proceedings would
be conducted “by and through the PSC.” [ER 000164-167].
Shortly, thereafter, the Court entered a second order
(PTO 11) on February 25, 2015, which outlined a protocol
for receiving fees and costs and limiting fees and costs to
“Participating Counsel” who were approved by the court
“prior to incurring any such cost or expense.” [ER 000115116] (emphasis added).
5
The 2.0 liter portion of the case received final approval
on October 25, 2016. The settlement established a funding
pool of slightly more than $10 billion. After class counsel
submitted an application for fees and costs, on March 17,
2017, the District Court granted class counsels’ application
for $175 million in fees and costs. [ER 000011-19]. This
application was granted absent any submission of back up
time records for lead counsel’s fee award and the absence
of any rationale for an award of a multiple of 2.63 of class
counsel’s lodestar with associate attorneys with limited
class experience receiving as much as $2,077 per hour
and paralegals receiving as much as $1,288 per hour.
On November 22, 2016, the District Court, upon receipt
of notice of the filing of attorney fee liens and upon the
filing of attorneys’ fee motions, by non-class counsel
entered an Order enjoining state court proceedings
relative to asserted attorneys’ liens, but also created a
mechanism and procedure for non-class counsel to collect
attorneys’ fees and costs. App 73a-80a. The District
Court acknowledged in that Order that “some attorneys
may have provided Class Members with compensable
services.” App. 60a-72a. Despite the receipt of over 244
motions from non-class counsel with over 13,000 pages
of documentation, on April 24, 2017, the District Court
rendered a blanket order denying all the fee applications
submitted by non-class counsel. App. 80a. As to preappointment time, the District Court, absent any reference
to the tens of thousands of pages of supportive billing,
concluded that there “was little to any pretrial activity
in the cases filed by Non-class Counsel, and the filings
alone did not materially drive the settlement negotiations
with Volkswagen.” App. 67a. The District Court concluded
that the filing of individual and class complaints in the
three month period between the public disclosure and
consolidation in the MDL “did not benefit the class.” App.
6
65a, 67a. The District Court further dismissed non-class
counsels’ diligent early efforts finding that these efforts,
at most, benefitted “individual class members, not the
class as a whole.” App. 68a. Between May 23, 2017 and
June 6, 2017, Nagel Rice Petitioners and others filed
notices of appeal and on January 22, 2019, the Ninth
Circuit agreed with the District Court, noting that it was
appellants who were required, under In re Cendant, 404
F.3d 173 (3rd Cir. 2005), to establish their work benefited
the class, as opposed to their individual clients, and that
one “cannot manufacture fees” by filing a complaint, but
rather, attorneys “who alone discover grounds for a suit
based upon their own investigation rather than on public
reports legitimately create a benefit for the class” even if
they are not chosen to represent the class. App. 47a-48a,
citing In re Cendant, 404 F.3d at 196-97. In support of the
District Court’s ruling, the Ninth Circuit agreed there
was “no indication, either in the voluminous record they
provided or in their briefs, that this work contributed to
the negotiations or crafting of the Settlement or otherwise
benefited the class in any meaningful way.” App. 48a. The
Ninth Circuit noted the appellants failed to show “they
engaged in serious settlement efforts, much less that any
such efforts contributed to the class settlement framework
that was ultimately reached, approved, and successfully
implemented.” App. 48a, citing Appellee Br.1
1. The District Court and the Appellate Court further
supported the denial of fees and costs, noting the Appellants had
failed to abide by the Court’s procedural requirement as evinced
by Pretrial Order No. 11 [ER 000115-126] (entered at the time of
appointment of class counsel on January 21, 2017), which required
pre-authorization by Lead Counsel prior to the performance of
any legal service. [ER 000115-16]. By its very terms, however,
PTO-11 only related to post-appointment fees and costs as there
was no mechanism or order to secure time that had already been
incurred at the time of appointment of class counsel.
7
On February 5, 2019, Nagel Rice Petitioners timely
moved for rehearing en banc. That request was denied on
February 28, 2019. App. 81a-83a.
REASONS FOR GRANTING THE PETITION
First, by finding the identical efforts of non-class
counsel valueless, this Court can address the conflict this
Ninth Circuit decision creates with the Tenth Circuit case
of Gottlieb, 43 F.3d at 489 (“we fail to see why the work
of counsel later designated as class counsel should be
fully compensated while other work of counsel who were
not later designated class counsel. . . should be wholly
uncompensated.”) and the Third Circuit case of In re
Cendant, 404 F.3d at 197 (creating the expectation that
Lead Counsel who make use of earlier attorneys’ legal or
investigative work will “request compensation for such
attorneys,” and warned against the appropriation of such
work without compensation).
Second, the decision presents the Court with the
opportunity to determine whether a decision to treat
non-class counsel differently by denying fees and costs
for the identical work of class counsel has the consequence
of violating Boeing, 444 U.S. at 478 and Amchem, 521
U.S. at 627 by creating two distinct unequal classes of
plaintiffs: those whose fees and costs are fully covered
by the settlement and those whose fees and costs are not
covered avoiding due process protections.
Third, similarly, the decision warrants review where
it runs afoul of due process protections by placing class
counsel in a conflict of interest position as prohibited by
Amchem, 621 U.S. at 626, n.20 and Ortiz, 527 U.S at 819
by favoring some class members over others, an objection
that could not be voiced by class members as the denial
8
of fees and costs did not come until after the settlement
approval process was complete.
Finally, this Court should grant certiorari to address
the District Court’s obligations to articulate an objective
and reviewable basis for rendering attorneys’ fees and
costs awards. Moreover, this Court has already articulated
the standards to be applied when awarding reasonable
attorneys’ fees and costs under a fee-shifting statute,
Perdue, 559 U.S. at 558, and should ensure uniformity
by applying the same standards in all class action cases.
I.
REVIEW IS WARRANTED WHERE FAILURE
TO AWARD PRE-APPOINTMENT FEES AND
COSTS TO NON-CLASS COUNSEL CREATES
A CONFLICT AMONG CIRCUIT COURTS OF
APPEAL.
Rule 23(h) allows a court to award reasonable
attorneys’ fees and non-taxable costs that are authorized
by law. Fed. R. Civ. P. 23(h). This is true even if the
applicant seeking fees and costs is not designated class
counsel. See Committee Note to subsection (h); Gottlieb,
43 F.3d at 489 (“we fail to see why the work of counsel later
designated as class counsel should be fully compensated
while the work of counsel who were not later designated
class counsel . . . should be wholly uncompensated.”); M.
Kaufman, Issues with Non-lead Counsel, 26A Sec. Lit.
Damages § 25:4.40 (2018) (“Work completed by non-lead
counsel before the court appoints a lead attorney can
confer substantial benefits on the class, and thus nonlead counsel should be reasonably compensated.”); In re
Cendant, 404 F.3d at 179 (creating the expectation that
Lead Counsel who makes use of earlier attorneys’ legal
or investigative work will “request compensation for such
9
attorneys,” and warned against the appropriation of such
work without compensation). See e.g. Stetson v. Grissom,
821 F.3d 1157, 1163-65 (9th Cir. 2016) (stating that even an
objector can be entitled to attorneys’ fees in a class action).
Neither class counsel nor the panel specifically dispute
the nature of the work performed by non-class counsel
prior to the appointment of class counsel on January 21,
2016:
-
Filing some 451 potentially related cases across
the nation in some sixty federal districts before
the first NOV and the advent of the MDL;
-
Filing of motions, including at least four to
preserve evidence and at least three for interim
lead counsel;
-
Conducting preliminary discovery;
-
Conducting early settlement efforts prior to
consolidation;
-
Presenting at least eight conferences for
attorneys across the country to analyze, discuss,
and refine approaches to bringing the cases;
-
Securing the appointment of two mediators in
several New Jersey actions prior to consolidation;
-
Researching potential causes of action;
-
Fielding and vetting hundreds of phone calls from
prospective clients;
10
-
Communicating and coordinating with other
attorneys filing similar cases;
-
Communicating with prospective German legal
counsel regarding potential jurisdictional issues
and possible efforts to secure key evidence from
a foreign country;
-
Filing documents and appearing in New Orleans
with a group of other local law firms to argue
in support of the transfer and consolidation of
all the cases to the State of New Jersey, where
VW is incorporated and where it maintains key
management offices; and
-
Filing papers and appearing in the Northern
District of California District Court to be
selected as Lead Counsel or as a counsel on
Plaintiffs’ Steering Committee.
App. 45a-47a.
In addition to the above, Nagel Rice Petitioners’
efforts further included:
-
Amending complaints;
-
Fielding press and media questions and appearing
on multiple news sources both domestically and
abroad, as part of a strategy to bring VW to the
table; and
[ER 000271].
11
The District Court and Ninth Circuit never addressed
the glaring paradox in determining that only the selected
firms would be awarded fees and costs for pre-appointment
work. Hence, how could the drafting and filing of 19 class
counsels’ complaints (including lead counsel’s complaint),
all filed after the Nagel Rice’s Complaint, be deemed
worthy of a huge multiplier and, at the same time, be
deemed worthless if filed by a firm not selected to be in
a leadership role? It is this stark anomaly that lies at the
heart of this case and stands in conflict with the decisions
of two other Circuits in Gottlieb, 43 F.3d 474 and In re
Cendent, 404 F.3d 173 both of which hold that the work of
non-class counsel should not be deemed valueless merely
because it was not done by class counsel. The efforts of
non-class counsel in the pre-appointment stage of the case
had the exact same benefit for the class as the efforts and
work product of those firms that were later appointed to
lead the litigation.
II. REVIEW SHOULD BE GRANTED WHERE THE
DECISION ACTS TO CREATE TWO UNEQUAL
CLASSES OF PLAINTIFFS IN VIOLATION OF
THIS COURT’S PRECEDENT.
In affirming the District Court, the Ninth Circuit’s
decision stands in direct contradiction to the decisions of
the Tenth and Third Circuits, by creating two classes of
plaintiffs: those whose settlement awards are subject to
reduction by non-class counsel’s fees and costs and those
represented by selected counsel whose recoveries are not
subject to the payment of their attorneys’ fees and costs.
Preferring one group of class plaintiffs over another
relative to the payment of fees and costs is precisely the
predicament this Court has sought to prevent in assessing
attorneys’ fees and costs against a fund. Boeing, 444 U.S.
12
at 478 (Courts prevent inequity in fund cases, where one
might benefit from a successful litigation at the expense
of the efforts of a successful litigant, by spreading fees
proportionately among all those who benefit); see also
In re Dry Max Pampers Litigation, 724 F.3d 713, 718
(6th Cir. 2013) (vacating class action settlement approval
that resulted in unnamed plaintiffs receiving more
favorable treatment than other class members who
received “nearly worthless” injunctive relief); Larson
v. AT&T Mobility LLC, 687 F.3d 109, 133 (3d Cir. 2012)
(treating class of similarly-situated claimants differently
in a settlement class required remand). Due process
requires that “structural assurance[s] of fair and adequate
representation for diverse groups and individuals” within
the class exist. Amchem, 521 U.S. at 591. The method of
creating subclasses is designed to ensure that similarlysituated claims are treated equally. See, e.g. In re Motor
Fuel Temperature Sales Practices Litigation, 271 F.R.D.
263, 284 (D. Kan. 2010) (holding that variations of state
law suggest that parties restrict proposed settlement to
include subclasses for representation in various states).
Allowing this decision to stand violates fundamental
due process and fairness to the plaintiffs represented by
non-class counsel and this petition should be granted to
address this issue of paramount importance in class action
jurisprudence.
III. THE RESULT OF THE NINTH CIRCUIT’S
DECISION, WHICH LIMITS PAYMENT OF
FEES AND COSTS TO ONLY CLASS COUNSEL,
CREATES A GROSS CONFLICT OF INTEREST
IN VIOLATION OF AMCHEM AND ORTIZ.
Allowing two differing results for plaintiffs in the class
creates a legal conflict for lead counsel and class counsel,
13
who cannot, in a settlement, prefer their own clients
over non-class counsels’ clients. Because the motions for
attorneys’ fees and costs by non-class counsel did not
occur prior to final approval of the class, class members
represented by non-class counsel could not assert their
rights to object to the settlement. The constitutional
infirmity in denying non-class counsel pre-appointment
fees and costs for the identical work of class counsel is
patently obvious; it deprives those members of the class
who did not have their counsel selected as class counsel
their due process right to adequate representation.
This Court has repeatedly affirmed that adequacy of
representation is a basic element of due process. Cf.
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (“the
Due Process Clause of course requires that the named
plaintiff at all times adequately represent the interests
of the absent class members” (citing Hansberry v. Lee,
311 U.S. 32, 42-43, 45 (1940)); see also Matsushita Elec.
Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 388 (1996)
(“adequate representation is among the due process
ingredients that must be supplied if the judgment is to
bind absent class members.”) (Ginsburg, J., concurring).
This Court emphasized the importance of the adequacy of
representation requirement in a case that sought to settle
the claims of both present and future asbestos victims.
Amchem, 521 U.S. at 625 (1997). In Amchem, this court
recognized the adequacy of representation inquiry “also
factors in competency and conflicts of class counsel.”
Amchem, 521 U.S. at 626, n.20 (citing General Telephone
Co. of Southwest v. Falcon, 457 U.S. 147, 157, n.13 (1962)).
In Ortiz, 527 U.S. at 856, this Court again, connected due
process rights arising from the adequacy of representation
issue (when certifying a class) as a means “to eliminate
conflicting interests of counsel.” (citing cf. 5 J. Moore, T.
Chorvat, D. Feinberg, R. Marmer & J. Solovy, Moore’s
Federal Practice § 23.25[5][e], p. 23-149 (3d ed. 1998) (an
14
attorney who represents another class against the same
defendant may not serve as class counsel); see also, Ortiz,
527 U.S. at 856, n. 31 (“In Amchem, we concentrated on
the adequacy of named plaintiff but recognized that the
adequacy of representation inquiry is also concerned
‘with competency and conflicts of class counsel’.”) (citing,
Amchem, 521 U.S. at 626, n. 20)
Allowing two different results for class members, as
a result of a decision rendered after approval and after
the time to object to the settlement had run, created a
legal conflict for class counsel who cannot prefer their
own clients over those represented by non-class counsel.
See Radcliffe v. Experian Info. Sols. Inc., 715 F.3d 1157,
1167 (9th Cir. 2013) (explaining counsel in nationwide class
action has fiduciary duty to all class members); Zucker v.
Occidental Petroleum Corp., 192 F.3d 1323, 1328 (9th Cir.
2000), cert. denied, 529 U.S. 1066 (2000) (class counsel is
fiduciary to the class).
Class representation is inadequate if plaintiff
representatives fail to prosecute the action vigorously
on behalf of the entire class or have an insurmountable
conflict of interest with other class members. Hesse
v. Sprint Corp., 598 F.3d 581, 589 (9th Cir. 2000), cert.
denied, 562 U.S. 1003 (2010). “The interests of clients
‘actually conflict’ for purposes of [California Professional
Ethics] Rule 3-310 ‘whenever a lawyer’s representation of
one of two clients is rendered less effective because of his
representation of the other.’” See Rodriguez v. Disner, 688
F.3d 645, 656 (9th Cir. 2012) (citing Gilbert v. Nat’l Corp.
for Hous. Partnerships, 71 Cal. App. 4th 1240, 1253 (Cal.
Ct. App. 1999)).
15
Review is intended to address this glaring conflict of
interest of class counsel and the due process violations to
class members who are represented by non-class counsel.
IV. T H E D E C I S I O N B E L O W FA I L S T O
OBJECTIVELY EXPLAIN THE BASIS FOR THE
DENIAL OF APPLICATIONS BY NON-CLASS
COUNSEL FOR AN AWARD OF FEES AND
COSTS.
As one esteemed jurist w rote in Loughney v.
Hickey, 635 F.2d 1063, 1068 (3d Cir. 1980) (Aldisert, J.,
concurring):
In all cases of institutional or precedential
consequence, the courts have a duty of reasoned
elaboration...
Similarly, in United States v. Fisher, 55 F.3d 481, 487 (10th
Cir. 1995), the appellate tribunal criticized the lower court
for its failure to elaborate on the reasons for a decision:
In failing to state his reasons, the judge has,
once again, left us in an unwelcome zone of
speculation. Judicial action is not an exercise
in ipse dixit -- the bare assertion of any
individual resting not on expressed reason,
but merely on the authority vested in an office.
According, when a judge takes action, it is
fundamental that a basis grounded in law is
articulated.
See also, N.L.R.B. v. Amalgamated Clothing Workers of
America, 430 F.2d 966, 972 (5th Cir. 1970) (an articulated
discussion of factors which lead court to one rather
16
than to another result gives strength to the system and
reduces, if not eliminates, easy temptation or tendency
to ill-considered or even arbitrary action by those having
awesome power of almost final review; rule permitting
disposition without opinion must be used sparingly and
must never be used to avoid difficult or troublesome
decision or to conceal divisive or disturbing issues).
In the context of fee awards under a fee-shifting
statute, this Court explained that reliance on subjective
rather than objective factors “place[s] unlimited discretion
in trial judges and [can] produce[] disparate results.”
Perdue, 559 U.S. at 542, 551 (reversing fee award). As
such, district courts awarding fees and costs under a fee
shifting statute must provide objective factual and legal
bases on which the award was granted or risk widely
disparate results and the potential or appearance of bias:
It i s e s sent i a l t hat t he judge pr ov ide
a reasonably specific explanation for all
aspects of a fee determination, including
any award of an enhancement. Unless such
an explanation is given, adequate appellate
review is not feasible, and without such review,
widely disparate awards may be made, and
awards may be influenced (or at least, may
appear to be influenced) by a judge’s subjective
opinion regarding particular attorneys or the
importance of the case.
Perdue, 559 U.S. at 558.
Such a requirement of providing of objective factual
and legal bases for an award of attorneys’ fees and costs
should extend equally absent a fee shifting statute.
Protecting against disparate results and an appearance
17
of bias is particularly crucial here, where the District
Court entered a fee award to class counsel that included
a multiplier to counsel’s lodestar while denying any fee
award for the identical pre- appointment work product
of non-class counsel. 2 See Perdue, 559 U.S. at 558
(“But when a trial judge awards an enhancement on an
impressionistic basis, a major purpose of the lodestar
method - providing an objective and reviewable basis for
fees - is undermined.”) (internal citations omitted).
Here, the Ninth Circuit affirmed the denial of a fee
award and costs to non-class counsel based on the District
Court’s conclusory statements -- absent any reference
to the tens of thousands of supportive documents -- that
as to pre-appointment time: (1) there “was little to any
pretrial activity in the cases filed by non-class counsel, and
the filings alone did not materially drive the settlement
negotiations with Volkswagen” [App. 67a]; (2) the filing
of individual and class complaints in the three month
period between the public disclosure and consolidation
in the MDL “did not benefit the class” [App. 65a, 67a];
and (3) these efforts, at most, benefitted “individual class
members, not the class as a whole.” [App. 68a]. Such
unsupported conclusions are insufficient bases to award
fees and costs under a fee-shifting statute, especially
when the award considers a possible lodestar multiplier.
Perdue, 559 U.S. at 551-57. More incongruent is the
District Court’s fee and costs award to class counsel for
the identical pre-appointment efforts of non-class counsel.
On its face, the District Court’s fee and cost denial cannot
withstand a “reasonableness” test. Hence, the subjective
2. More unsettling still was the failure of class counsel to
provide even time sheets as back up for their fee application while
non-class counsel provided some 13,000 pages of back up for their
combined 244 fee applications.
18
statements without more, should provide a basis to reverse
any denial of attorneys’ fees and costs in a class action.
The same analysis should apply regarding reasonableness
of fees and costs to non-class counsel as applied to class
counsel.
Indeed, because the Ninth Circuit affirmed the
District Court’s denial of non-class counsel’s fees and
costs absent any reference to the contemporaneous time
records of non-class counsel, such action evinces the
absence of an objective basis for the denial of an award
by the District Court.
As such, this Court should grant certiorari to
determine whether the standards recently set forth in
Perdue apply: (a) in a non-fee shifting class action; and
(b) when there is a denial of fees and costs to non-class
counsel when the work of class counsel and non-class
counsel is identical.
19
CONCLUSION
Nagel Rice Petitioners respectfully request that this
Court grant their Petition for a Writ of Certiorari.
Respectfully submitted,
Bruce H. Nagel
Counsel of Record
Diane E. Sammons
Nagel Rice, LLP
103 Eisenhower Parkway
Roseland, NJ 07068
(973) 618-0400
bnagel@nagelrice.com
Counsel for Petitioners
Nagel Rice, LLP
Hyde & Swigart
Attorney Paul S. Rothstein
The Driscoll Law Firm PC
Law Offices of Maloney & Campolo
Law Offices of Samuel W. Bearman
Sellers, Skievaski Kuder, LLP
Artice L. McGraw, PA
Strong Law Offices
Habush Habush & Rottier S.C.
Hawks Quindel , S.C.
Makarem & Associates
Holton Law Firm
APPENDIX
1a
APPENDIX A — Appendix
OPINIONAOF THE UNITED
STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT, FILED JANUARY 22, 2019
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 17-16020
D.C. No. 3:15-md-02672-CRB
IN RE VOLKSWAGEN “CLEAN DIESEL”
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION,
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
DAVID MCCARTHY; SCOTT MOEN; RYAN
2a
Appendix A
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
BISHOP, HEENAN &DAVIES,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
3a
Appendix A
No. 17-16065
D.C. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
DAVID MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
4a
Appendix A
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
LAW OFFICE OF MALONEY & CAMPOLO, LLP,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
No. 17-16067
D.C. No. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
5a
Appendix A
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
DAVID MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
6a
Appendix A
JAMES BEN FEINMAN; RONALD CLARK
FLESHMAN, JR.,
Objectors-Appellants,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
No. 17-16068
D.C. No. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
7a
Appendix A
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
DAVID MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
LEMBERG LAW, LLC,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
8a
Appendix A
No. 17-16082
D.C. No. 3:15-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
DAVID MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
9a
Appendix A
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
NAGEL RICE, LLP,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
No. 17-16083
D.C. No. 3:15-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
10a
Appendix A
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
DAVID MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
11a
Appendix A
STRONG LAW OFFICES,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
No. 17-16089
D.C. No. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
12a
Appendix A
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
DAVID MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
HYDE & SWIGART,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
13a
Appendix A
No. 17-16092
D.C. No. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
DAVID MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
14a
Appendix A
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
THE DRISCOLL FIRM, P.C.,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
No. 17-16099
D.C. No. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
15a
Appendix A
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
DAVID MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
16a
Appendix A
VILES AND BECKMAN, LLC,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
No. 17-16123
D.C. No. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
17a
Appendix A
DAVID MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
HOLTON LAW FIRM, PLLC,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
18a
Appendix A
No. 17-16124
D.C. No. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
DAVID MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
19a
Appendix A
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
MAKAREM & ASSOCIATES, APLC,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
No. 17-16130
D.C. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
20a
Appendix A
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE
MAHLE; DAVID MCCARTHY; RYAN JOSEPH
SCHUETTE; MEGAN WALAWENDER; JOSEPH
MORREY; MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
21a
Appendix A
LAW OFFICE OF SAMUEL W. BEARMAN, LLC;
SELLERS SKIEVASKI KUDER LLP; ARTICE
MCGRAW, PA,
Objectors-Appellants,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
No. 17-16132
D.C. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
22a
Appendix A
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
DAVID MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
HARRELL & NOWAK, LLC,
Objector-Appellant,
v.
23a
Appendix A
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
No. 17-16156
D.C. No. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE
MAHLE; DAVID MCCARTHY; RYAN JOSEPH
SCHUETTE; MEGAN WALAWENDER; JOSEPH
MORREY; MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER; ADDISON
24a
Appendix A
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
EGOLF FERLIC HARWOOD, LLC,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
25a
Appendix A
No. 17-16158
D.C. No. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE
MAHLE; DAVID MCCARTHY; RYAN JOSEPH
SCHUETTE; MEGAN WALAWENDER; JOSEPH
MORREY; MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
26a
Appendix A
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
RYDER LAW FIRM, P.C.,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
No. 17-16172
D.C. No. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
27a
Appendix A
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
DAVID MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
28a
Appendix A
PAUL S. ROTHSTEIN,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
No. 17-16180
D.C. No. 3:15-md-02672-CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
29a
Appendix A
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE
MAHLE; DAVID MCCARTHY; RYAN JOSEPH
SCHUETTE; MEGAN WALAWENDER; JOSEPH
MORREY; MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER; ADDISON
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
HAWKS QUINDEL, S.C.; HABUSH HABUSH
& ROTTIER, S.C.,
Objectors-Appellants,
v.
30a
Appendix A
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California.
Charles R. Breyer, District Judge, Presiding.
December 19, 2018, Argued and Submitted
San Francisco, California
January 22, 2019, Filed
Before: MILAN D. SMITH, JR. and JACQUELINE H.
NGUYEN, Circuit Judges, and JANE A. RESTANI,*
Judge.
Opinion by M. SMITH, JR.
***
OPINION
M. SMITH, Circuit Judge:
Appellants are lawyers and law firms that represented
class members in an underlying class action that secured a
settlement of more than $10 billion and an additional award
The Honorable Jane A. Restani, Judge for the United States
Court of International Trade, sitting by designation.
*
31a
Appendix A
of $175 million in fees for class counsel. Non-class counsel
filed 244 motions for attorneys’ fees. In a single order,
the district court denied all of the motions, determining
that the lawyers neither performed common benefit work
nor followed the proper procedures for compensation. We
affirm.1
FACTUAL AND PROCEDURAL BACKGROUND
I.
Factual Background
On September 18, 2015, the Environmental Protection
Agency (EPA) issued a Notice of Violation (NOV) in which
it alleged that Defendants-Appellees Volkswagen Group of
America, Inc., Volkswagen, AG, and Audi, AG (collectively,
Volkswagen) used “defeat devices” in 500,000 Volkswagenand Audi-branded TDI “clean diesel” vehicles. As the
district court later explained,
[T]he defeat device produces regulationcompliant results when it senses the vehicle is
undergoing testing, but operates a less effective
1. Various appellants filed eighteen separate notices of appeal
from the district court’s order, seventeen of which are consolidated
here. (The eighteenth appeal—Autoport, LLC v. Volkswagen
Group of America, Inc., No. 17-16066—was later severed from the
consolidation and is addressed in a concurrently filed memorandum
disposition.) The law firms represented in fifteen of the seventeen
consolidated appeals signed on to the brief prepared by Appellants
Nagel Rice, LLP and Hyde & Swigart, while Appellants James Ben
Feinman and Ronald Clark Fleshman, Jr. submitted their own,
separate brief. Appellant Bishop, Heenan & Davies LLC did not
sign either of these briefs, and did not submit its own.
32a
Appendix A
emissions control system when the vehicle is
driven under normal circumstances. It was only
by using the defeat device that Volkswagen was
able to obtain Certificates of Conformity from
EPA and Executive Orders from [the California
Air Resources Board] for its TDI diesel engine
vehicles. In reality, these vehicles emit nitrogen
oxides (“NOx”) at a factor of up to 40 times over
the permitted limit.
Two months later, the EPA issued a second NOV to
Volkswagen and Defendant-Appellee Porsche Cars of
North America, Inc., which implicated the companies’
3.0-liter diesel engine vehicles.
II. Procedural Background
A.
Commencement of Lawsuits
Soon after the issuance of the NOVs, consumers
nationwide commenced hundreds of lawsuits. One such
action was spearheaded by Appellant Nagel Rice, LLP
(Nagel Rice), an illustrative law firm that represented
forty-three Volkswagen owners from various states. Nagel
Rice filed a complaint in New Jersey federal court on
September 21, 2015—three days after the issuance of the
first NOV and two months before the eventual consolidation
of all related cases. During this early representation,
Nagel Rice asserts that it performed various activities
related to the litigation, including conducting research,
fielding calls from prospective clients and the media, and
communicating with German legal counsel regarding
potential jurisdictional and evidentiary issues.
33a
Appendix A
Eventually, on December 8, 2015, the Judicial Panel on
Multidistrict Litigation consolidated the various lawsuits
and transferred them to the U.S. District Court for the
Northern District of California. Ultimately, the district
court received more than one thousand Volkswagen cases
as part of this multidistrict litigation (MDL), titled In re
Volkswagen “Clean Diesel” Marketing, Sales Practices,
& Products Liability Litigation, MDL 2672.
B. Pretrial Orders
On December 9, 2015—the day after the consolidation
and transfer—the district court issued its first pretrial
order (PTO), in which it announced its intent “to appoint
a Plaintiffs’ Steering Committee(s) to conduct and
coordinate the pretrial stage of this litigation with the
defendants’ representatives or committee.” Nagel Rice
was one of the firms that submitted papers to be selected
either as Lead Counsel or as a member of the Plaintiffs’
Steering Committee (PSC).
The district court selected a twenty-one-member PSC
following the application process, and appointed it and
Lead Counsel (together, Class Counsel) in its seventh PTO
(PTO No. 7). This PTO asserted that “as to all matters
common to the coordinated cases, and to the fullest extent
consistent with the independent fiduciary obligations owed
by any and all plaintiffs’ counsel to their clients and any
putative class, [] pretrial proceedings shall [be] conducted
by and through the PSC.”
34a
Appendix A
In its eleventh PTO (PTO No. 11), filed on February
25, 2016, the district court outlined its protocol for common
benefit work and expenses. The court explained that
“[t]he recovery of common benefit attorneys’ fees and
cost reimbursements will be limited to ‘Participating
Counsel,’” which it defined as
Lead Counsel and members of the Plaintiffs’
Steering Committee (along with members
and staff of their respective firms), any other
counsel authorized by Lead Counsel to perform
work that may be considered for common
benefit compensation, and/or counsel who have
been specifically approved by this Court as
Participating Counsel prior to incurring any
such cost or expense.
It further elaborated that “Participating Counsel shall
be eligible to receive common benefit attorneys’ fees and
reimbursement of costs and expenses only if the time
expended, costs incurred, and activity in question were (a)
for the common benefit of Plaintiffs; (b) timely submitted;
and (c) reasonable.” As to the first requirement—”for the
common benefit of Plaintiffs”—the district court explained
that
[o]nly Court-appointed Counsel and those
attorneys working on assignments therefrom
that require them to review, analyze, or
summarize those filings or Orders in connection
with their assignments are doing so for the
common benefit. All other counsel are reviewing
35a
Appendix A
those filings and Orders for their own benefit
and that of their respective clients and such
review will not be considered Common Benefit
Work.
(emphasis added). Class Counsel later reported that “Lead
Counsel took advantage of the authority granted in PTO
7 to enlist and authorize nearly 100 additional firms to
perform the necessary common benefit work, which was
then tracked pursuant to the protocol set forth in PTO
11.” 2
The PTOs’ guidance notwithstanding, Nagel Rice
claims that, although it was not selected to be Lead Counsel
or a member of the PSC, it “appeared telephonically in
almost every court appearance relative to the case
and provided continual updates to clients via email,”
and “fielded scores of telephone calls from clients and
other class members seeking information relative to the
settlement and the process for submitting objections and
claims.” Similarly, another lawyer, Appellant James Ben
Feinman, extensively litigated on behalf of 403 individual
clients in Virginia state and federal courts, in addition to
monitoring the MDL. There is no indication in the record
2. For example, PSC chair Elizabeth Cabraser attested that
“prior to the filing of the Consolidated Consumer Class Action
Complaint, [she] requested all firms who had submitted leadership
applications and other interested firms to submit information on
plaintiffs interested in serving as proposed class representatives.
Information on [] nearly 600 plaintiffs was submitted by dozens of
firms. All of these firms were asked to submit their time for this
effort under PTO 11.” (citation omitted).
36a
Appendix A
that Nagel Rice, Feinman, or any other Appellants fully
complied with the PTOs in performing these efforts.
C.
Settlement Process
Class Counsel, along with ninety-seven additional
plaintiffs’ firms that Lead Counsel enlisted pursuant
to PTO No. 11, embarked on an aggressive settlement
process that, in the words of Settlement Master Robert S.
Mueller III, “involved at least 40 meetings and in-person
conferences at various locations, including San Francisco,
New York City, and Washington, DC, over a five-month
period. A number of these sessions lasted many hours,
both early and late, and weekends were not excluded.” The
efforts undertaken by this group included drafting a 719page consolidated class action complaint, selecting class
representatives, requesting and reviewing more than 12
million pages of Volkswagen documents, and conducting
settlement negotiations.
The district court preliminarily approved the
resulting Consolidated Consumer Class Action Settlement
(the Settlement) on July 29, 2016. In their motion for
preliminary approval, the class action’s plaintiffs
(Plaintiffs) asserted that “[n]one of the settlement benefits
for Class Members will be reduced to pay attorneys’ fees
or to reimburse expenses of Class Counsel. Volkswagen
will pay attorneys’ fees and costs separately and in
addition to the Settlement benefits to Class Members.”
The court filed its final approval of the Settlement on
October 25, 2016. As of November 2017—one year before
37a
Appendix A
the end of the claims period—the claims of more than
300,000 class members had been submitted and finalized,
resulting in payments of nearly $7 billion.
D.
Recovery of Attorneys’ Fees
Notably, for purposes of these appeals, section 11.1 of
the Settlement read in part as follows:
Volkswagen agrees to pay reasonable attorneys’
fees and costs for work performed by Class
Counsel in connection with the Action as well
as the work performed by other attorneys
designated by Class Counsel to perform work
in connection with the Action in an amount to
be negotiated by the Parties and that must
be approved by the Court. . . . If the Parties
reach an agreement about the amount of
attorneys’ fees and costs, Class Counsel will
submit the negotiated amount to the Court for
approval. . . . The Parties shall have the right
to appeal the Court’s determination as to the
amount of attorneys’ fees and costs.
Volkswagen and Class Counsel eventually agreed to an
award of $175 million in attorneys’ fees and costs, which
the district court granted on March 17, 2017.
In November 2016, Volkswagen informed the
district court that it had begun receiving “notices of
representation from [attorneys] purporting to assert
attorneys’ fee liens on payments made to certain class
38a
Appendix A
members under” the Settlement. The district court also
began to receive motions for attorneys’ fees and costs. In
response, the court issued an order regarding attorneys’
liens (the Lien Order) on November 22, 2016. It noted
that a purpose of the Settlement was to “ensure[] Class
Members who participate in a Buyback have sufficient
cash to purchase a comparable replacement vehicle and
thus facilitate[] removal of the polluting vehicles from the
road.” The court continued,
An attorneys’ lien on a Class Member’s
recovery frustrates this goal. By diverting a
portion of Class Members’ compensation to
private counsel, a lien reduces Class Members’
compensation and places them in a position
where they must purchase another vehicle
but lack the funds to do so. Put another way,
attorneys—notably, attorneys who did not
have a hand in negotiating the Settlement—
stand to profit while their clients are left with
inadequate compensation.
Accordingly, pursuant to its power under the All Writs Act,
the district court “enjoin[ed] any state court proceeding
relating to an attorneys’ lien on any Class Member’s
recovery under the Settlement.”
However, acknowledging that “some attorneys may
have provided Class Members with compensable services,”
the court also established a procedure for recovery of
attorneys’ fees, requiring “a separate application for each
Class Member” that would include “the amount sought; the
39a
Appendix A
specific legal service(s) provided, including time records;
and the terms of the fee agreement that require such an
award.” The court ultimately received 244 applications,
including one from Nagel Rice.
Feinman, the Virg inia law yer who continued
his litigation activities even after consolidation and
appointment of Class Counsel, filed an objection to
the Lien Order injunction and requested more time to
comply with the procedure for fee applications. In his
objection, he explained the propriety of his attorney’s lien
in Virginia, and called into question the district court’s
federal question jurisdiction over the claims of his clients.
He concluded that “this Honorable Court has no right,
authority or power to annul or repeal Virginia law in
regard to statutorily-created liens for attorneys’ fees. To
do so violates the property rights of Mr. Feinman without
due process of law, and violates the Full Faith and Credit
Clause of the United States.”
A fter review ing the 244 fee applications, the
district court issued an order (the Fee Order) in which
it determined that “Volkswagen did not agree to pay
these fees and costs as part of the Settlement, and []
Non-Class Counsel have not offered evidence that their
services benefited the class, as opposed to their individual
clients,” and consequently denied the motions. The court
concluded that “Non-Class Counsel’s filing of individual
and class complaints prior to the MDL did not benefit the
class” because, due to the short time between the first
NOV and consolidation of the MDL, little pretrial activity
occurred that might have driven settlement negotiations.
40a
Appendix A
It also noted that although “Non-Class Counsel offer[ed]
evidence that . . . they fielded hundreds of phone calls
from prospective and actual clients,” these efforts “at
most benefited individual class members, not the class as
a whole.” As for work undertaken after appointment of
Class Counsel, the court determined that, due to its PTOs,
“Non-Class Counsel [] were on notice that they would not
receive common benefit compensation for these efforts,”
and had also been informed of the required compensation
procedure outlined in PTO No. 11. Finally, the district
court concluded that “the time Non-Class Counsel spent
advising class members on the terms of the Settlement”
was “duplicative of that undertaken by Class counsel, and
therefore did not ‘confer[] a benefit beyond that conferred
by lead counsel.’” (alteration in original) (quoting In re
Cendant Corp. Sec. Litig., 404 F.3d 173, 191 (3d Cir. 2005)).
Consequently, the court denied the 244 fee applications.
In denying the applications, the district court also
recognized that “[w]hile Non-Class Counsel are not
entitled to fees from Volkswagen as part of this class
action, Non-Class Counsel may be entitled to payment
of certain fees and costs pursuant to attorney-client fee
agreements.” Accordingly, the court vacated the Lien
Order and its accompanying injunction on state court
actions to facilitate such recovery.
These appeals followed.
41a
Appendix A
STANDARD OF REVIEW AND JURISDICTION
An order denying attorneys’ fees is reviewed for abuse
of discretion. Lane v. Residential Funding Corp., 323 F.3d
739, 742 (9th Cir. 2003). “Findings of fact are reviewed
for clear error; conclusions of law are reviewed de novo.”
Stetson v. Grissom, 821 F.3d 1157, 1163 (9th Cir. 2016). We
have jurisdiction pursuant to 28 U.S.C. § 1291.
ANALYSIS
Nagel Rice and the other Appellants that signed its
brief (collectively, Nagel Appellants) suggest that “[t]his
appeal presents an issue of first impression in the Ninth
Circuit: whether Independent Counsel who performed
services and incurred costs in a multi-district litigation
prior to the appointment of Lead Counsel are entitled
to an award of fees and costs, or are only the firms
appointed to leadership roles entitled to a fee award
for services performed prior to their appointment.” In
truth, however, the central issue before us is narrower:
whether the district court abused its discretion when it
denied Appellants’ motions for attorneys’ fees. Appellants’
challenges to the Fee Order raise various legal issues,
which we will address in turn.
I.
Standing
As a threshold matter, Volkswagen argues that
Appellants lack standing to appeal. It premises this
contention on our previous determination that “the right
to seek attorney’s fees [is vested] in the prevailing party,
42a
Appendix A
not her attorney, and [] attorneys therefore lack standing
to pursue them.” Pony v. County of Los Angeles, 433 F.3d
1138, 1142 (9th Cir. 2006). Because Appellants are law
firms and lawyers that appeal in their own names (with the
exception of Appellant Ronald Clark Fleshman, Jr., who is
one of Feinman’s clients and joins his attorney’s appeal),
Volkswagen contends that Appellants lack standing to
vindicate a right that is properly vested with their clients,
the underlying class members.
We disagree. Nagel Appellants correctly observe that
the cases on which Volkswagen relies, Pony included,
concerned statutory attorneys’ fees provisions. See Pony,
433 F.3d at 1142 (discussing fees authorized pursuant to
42 U.S.C. § 1988). Here, by contrast, Appellants did not
seek fees pursuant to statute, and so we cannot base our
conclusion on Pony or other similar cases.
Instead, we conclude that, as a matter of first
principles, Appellants have the most compelling case for
standing because they suffered an injury (deprivation of
attorneys’ fees) that was caused by the conduct complained
of (the Fee Order) and would be redressed by judicial
relief. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 56061, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992); cf. Glasser v.
Volkswagen of Am., Inc., 645 F.3d 1084, 1088-89 (9th Cir.
2011) (concluding that class plaintiffs in a non-common
fund case lacked standing to appeal an attorneys’ fee
award to class counsel because it did not affect class
plaintiffs’ recovery and so they were not “‘aggrieved’ by
the fee award” (quoting In re First Capital Holdings Corp.
Fin. Prods. Sec. Litig., 33 F.3d 29, 30 (9th Cir. 1994))).
43a
Appendix A
Here, Appellants were aggrieved by the district court’s
denial of their motions for attorneys’ fees. Therefore,
we conclude that Appellants properly have standing to
challenge the Fee Order. 3
II. The Fee Order
Federal Rule of Civil Procedure 23 permits a court to
“award reasonable attorney’s fees and nontaxable costs
that are authorized by law or by the parties’ agreement.”
3. We note that Nagel Appellants premise their standing
argument on cases involving common settlement funds, from
which both the Supreme Court and this court have acknowledged
that litigants and lawyers have a right to recover fees. See Boeing
Co. v. Van Gemert, 444 U.S. 472, 478, 100 S. Ct. 745, 62 L. Ed. 2d
676 (1980); Vincent v. Hughes Air W., Inc., 557 F.2d 759, 769 (9th
Cir. 1977). However, as the district court correctly noted, “[t]he
Settlement’s Funding Pool is not a traditional common fund from
which settlement proceeds are to be paid . . . . Volkswagen agreed to
pay Plaintiffs’ fees and costs in addition to the payments to the Class
rather than from the fund created for payments to the Class.” Cf. 5
William B. Rubenstein, Newberg on Class Actions § 15:53 (5th ed.
2018) (“[I]n common fund cases the prevailing litigants [pay] their
own attorney’s fees . . . . [T]he common fund doctrine allows a court
to distribute attorney’s fees from the common fund that is created
for the satisfaction of class members’ claims . . .” (emphasis added)).
Although Nagel Appellants invoked the common fund doctrine
in their brief, their counsel at oral argument clearly stated that
they sought fees not from the $10 billion-plus class settlement, but
instead from the separate $175 million fee recovery that Volkswagen
paid Class Counsel. Absent a traditional common fund from which
both class members and Class Counsel drew money, this is not a
traditional common fund case, and so Nagel Appellants cannot rely on
common fund precedent as controlling when different considerations
apply to standing in non-common fund cases.
44a
Appendix A
Fed. R. Civ. P. 23(h). Various courts, including our own,
have determined that even non-class counsel can be
entitled to attorneys’ fees. See, e.g., Stetson, 821 F.3d at
1163-65 (9th Cir. 2016) (indicating that an objector can be
entitled to attorneys’ fees in a class action); In re Cendant,
404 F.3d at 195 (concluding that an attorney who “creates
a substantial benefit for the class” can be “entitled to
compensation whether or not chosen as lead counsel”).
Although Rule 23 permits an award of fees when
authorized by law or the parties’ agreement, courts
have an independent obligation to ensure that the
award, like the settlement itself, is reasonable,
even if the parties have already agreed to an
amount. The reasonableness of any fee award
must be considered against the backdrop of the
“American Rule,” which provides that courts
generally are without discretion to award
attorneys’ fees to a prevailing plaintiff unless
(1) fee-shifting is expressly authorized by the
governing statute; (2) the opponents acted in
bad faith or willfully violated a court order;
or (3) “the successful litigants have created
a common fund for recovery or extended a
substantial benefit to a class.”
In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,
941 (9th Cir. 2011) (emphasis added) (citations omitted)
(quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,
421 U.S. 240, 275, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975)
(Marshall, J., dissenting)). Here, there is no dispute that
45a
Appendix A
neither the first nor the second scenario is applicable.
Therefore, Appellants would be entitled to attorneys’ fees
only if they contributed to the creation of a common fund
or otherwise benefited the class. Because the underlying
class action did not feature a traditional common fund
from which attorneys’ fees were procured,4 Appellants
could only have collected fees if they provided a substantial
benefit to the class, as the district court correctly
recognized. See Vizcaino v. Microsoft Corp., 290 F.3d
1043, 1051-52 (9th Cir. 2002) (“Because objectors did not
. . . substantially benefit the class members, they were
not entitled to fees.” (citing Bowles v. Wash. Dep’t of Ret.
Sys., 121 Wn.2d 52, 847 P.2d 440, 449-50 (Wash. 1993))).
This is the central issue across the consolidated
appeals: whether Appellants’ efforts meaningfully
benefited the class, and whether the district court abused
its discretion when it concluded that they did not and
denied their fee motions on that basis.
A.
Common Benefit Work
We ultimately conclude that the district court did not
abuse its discretion when it determined that the efforts
of non-Class Counsel for which they sought fees did
not benefit the class such that they would be entitled to
compensation.
In their reply brief, Nagel Appellants summarize the
efforts for which they sought reimbursement:
4. See supra note 3.
46a
Appendix A
• Commencing hundreds of lawsuits nationwide
after public disclosure of the first NOV and before
the advent of the MDL;
• Filing motions, including “at least four motions to
preserve evidence” and “at least three motions for
interim lead counsel positions”;
• Conducting early settlement efforts prior to
consolidation;
• Conducting preliminary discovery;
• Presenting “at least eight conferences for attorneys
across the country to analyze, discuss, and refine
approaches to bringing the cases”;
• Securing the appointment of two mediators in
several New Jersey actions prior to consolidation;
• Researching potential causes of action;
• “Fielding and vetting [] hundreds of phone
calls from prospective clients,” as well as press
inquiries;
• Communicating and coordinating with other
attorneys;
• “Communicating with prospective German legal
counsel regarding potential jurisdiction issues
and possible efforts to secure key evidence from
a foreign country”;
47a
Appendix A
• “[A]ppearing in New Orleans with a group of other
local law firms to argue in support of the transfer
and consolidation of all the cases to the State of
New Jersey, where [Volkswagen] is incorporated
and where it maintains key management offices”;
• Appearing telephonically in court appearances and
providing updates to clients after the appointment
of Class Counsel.
Our analysis will first consider those efforts undertaken
prior to the appointment of Class Counsel, before
addressing work performed subsequently.
i.
Work Before Appointment of Class
Counsel
As Plaintiffs correctly note, “[E]ven assuming these
activities are all attributable to the Appellants, [they] fail
to establish how, precisely, these activities benefitted the
Class. This shortcoming is fatal to Appellants’ appeals.”
In In re Cendant, a case on which Nagel Appellants
frequently rely, the court distinguished between work
that benefits a class and other, non-compensable work:
[W]e do not think that attorneys can simply
manufacture fees for themselves by filing
a complaint in a securities class action.
On the other hand, attorneys who alone
discover grounds for a suit, based on their own
investigation rather than on public reports,
legitimately create a benefit for the class, and
48a
Appendix A
comport with the purposes of the securities
laws. Such attorneys should generally be
compensated out of the class’s recovery, even
if the lead plaintiff does not choose them to
represent the class. More generally, attorneys
whose complaints contain factual research or
legal theories that lead counsel did not discover,
and upon which lead counsel later rely, will have
a claim on a share of the class’s recovery.
404 F.3d at 196-97 (footnote omitted). Undoubtedly,
Appellants undertook various pre-consolidation efforts
on behalf of their individual clients, but there is no
indication, either in the voluminous record they provided
or in the briefs, that this work contributed to the
negotiation or crafting of the Settlement or otherwise
benefited the class in any meaningful way. Appellants
may have filed complaints and conducted preliminary
discovery and settlement work on behalf of their clients
before consolidation of the MDL and appointment of
Class Counsel, but they do not appear to have discovered
grounds for suit outside of the information contained in the
widely publicized NOVs, or otherwise provided guidance
or insights that were later used in securing the Settlement.
In short, Appellants have not demonstrated that, in
Plaintiffs’ words, “they engaged in serious settlement
efforts, much less that any such efforts contributed to the
class settlement framework that was ultimately reached,
approved, and successfully implemented.” Therefore,
the district court did not abuse its discretion when it
concluded that there “was little to any pretrial activity
in the cases filed by Non-Class Counsel, and the filings
49a
Appendix A
alone did not materially drive settlement negotiations
with Volkswagen.”5
ii.
Work After Appointment of Class Counsel
Nagel Appellants indicate that most of their postappointment efforts consisted of fielding inquiries from
prospective clients, explaining the process and mechanics
of the Settlement, and “remain[ing] updated on the case.”
Such work was specifically mandated by PTO No. 11, which
also emphasized that “[o]nly Court-appointed Counsel
and those attorneys working on assignments therefrom
that require them to review, analyze, or summarize those
filings or Orders in connection with their assignments are
doing so for the common benefit. All other counsel are
reviewing those filings and Orders for their own benefit
and that of their respective clients and such review will
not be considered Common Benefit Work.” (emphasis
added). The district court applied similar restrictions to
attendance at status conferences (“Individual attorneys
are free to attend any status conference . . . but except
for Lead Counsel and members of the Plaintiffs’ Steering
Committee or their designees, attending and listening
5. Although Nagel Appellants claim that Class Counsel’s work
“consisted of combining/duplicating the work of others to file an
amended complaint followed by their negotiation of the terms of the
settlement and the preparation of settlement documents,” and thus
“was ipso facto the ongoing work by all counsel in the early months
following the September 2015 public disclosure of the cheat devices,”
this assertion is countered by Class Counsel’s motion for attorneys’
fees, which recounted their extensive, non-duplicative efforts on
behalf of the Settlement.
50a
Appendix A
to such conferences is not compensable Common Benefit
Work”), pleading and brief preparation (the court specified
that “factual and legal research and preparation of
consolidated class action complaints and related briefing”
would be compensable), and attendance at seminars
(“Except as approved by Lead Counsel, attendance at
seminars . . . shall not qualify as Common Benefit Work”).
(emphasis added). Therefore, under the PTOs issued
pursuant to the managerial authority possessed by the
district court, Appellants’ post-appointment work did not
benefit the class and hence was not compensable.
No Appellant challenges the PTOs or the district
court’s authority to issue them. Indeed, the Federal
Judicial Center has noted that a court will often “need to
institute procedures under which one or more attorneys
are selected and authorized to act on behalf of other
counsel and their clients with respect to specified
aspects of the litigation,” and further encouraged that
“[e]arly in [complex] litigation, the court should define
designated counsel’s functions, determine the method of
compensation, specify the records to be kept, and establish
the arrangements for their compensation, including
setting up a fund to which designated parties should
contribute in specified proportions.” Manual for Complex
Litigation §§ 10.22, 14.215 (4th ed. 2004); see also Ready
Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th
Cir. 2010) (“It is well established that ‘[d]istrict courts
have inherent power to control their docket.’” (alteration
in original) (quoting Atchison, Topeka & Santa Fe Ry.
Co. v. Hercules Inc., 146 F.3d 1071, 1074 (9th Cir. 1998)));
Kern Oil & Ref. Co. v. Tenneco Oil Co., 792 F.2d 1380, 1388
51a
Appendix A
(9th Cir. 1986) (permitting district court’s pretrial order
to govern recovery of attorneys’ fees). Accordingly, given
the district court’s inherent power to manage the MDL,
as well as its discretion in granting attorneys’ fees, there
is no dispute that Appellants were required to abide by
the PTOs, including PTO No. 11. We are told that nearly
100 other law firms followed the PTOs, and received
compensation accordingly. But there is no indication in
the record before us that Appellants fully adhered to the
PTOs’ guidance and procedures.
iii. Summation
Ultimately, we agree with Plaintiffs’ summary of the
work undertaken by Appellants and attested to by the
voluminous documentation provided to the district court:
Appellants chose to represent individual clients
who were Class Members in a consolidated
class action prosecuted by a leadership team
appointed by the District Court. In so choosing,
these attorneys knowingly undertook work
that the District Court had correctly concluded
would inure only to the benefit of their individual
clients, and not to the Class as a whole. In other
words, these lawyers knew that, although their
work might establish a right to recovery under
their respective attorney-client agreements and
subject to the ethical constraints on lawyers, it
would not be compensable through any petition
in the MDL.
52a
Appendix A
Appellants point to nothing in the 13,000-page record
that indicates that the work they performed on behalf of
their individual clients, either before or after appointment
of Class Counsel, informed the Settlement or otherwise
benefited the class. 6 Furthermore, the district court
explicitly precluded compensation for many of these
efforts in its PTOs.7
As the Third Circuit concluded in In re Cendant,
“The mere fact that a non-designated counsel worked
diligently and competently with the goal of benefiting
the class is not sufficient to merit compensation. Instead,
only attorneys ‘whose efforts create, discover, increase,
or preserve’ the class’s ultimate recovery will merit
compensation from that recovery.” 404 F.3d at 197 (quoting
In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods.
Liab. Litig., 55 F.3d 768, 820 n.39 (3d Cir. 1995)). Here,
the record clearly indicates that Appellants worked
diligently and presumably competently for their clients.
6. In their reply brief, Nagel Appellants suggest that one firm,
Appellant Ryder Law Firm, P.C. (Ryder), benefited the class by
“provid[ing] the Court with comments in relation to the proposed
settlement.” However, the excerpts of the record to which Nagel
Appellants point do not demonstrate that Ryder actually did this,
let alone that its contributions were utilized in any way by Class
Counsel, Volkswagen, or the district court.
7. Additionally, the district court expressly set forth a process
through which non-Class Counsel could receive reimbursement for
any work that was “for the common benefit of Plaintiffs,” was “timely
submitted,” and was “reasonable.” However, no Appellant argues
that it was authorized by Lead Counsel to perform work, of common
benefit or otherwise, and then submitted time records as required
by the district court’s protocol.
53a
Appendix A
But because there is no indication that any of these efforts
actually benefited the class and complied with the PTOs,
the district court did not abuse its discretion, by either
applying the wrong law or relying on erroneous factual
determinations, when it denied Appellants’ motions for
attorneys’ fees.
B. Additional Arguments
Nagel Appellants advance three additional arguments
as to how the district court abused its discretion when it
issued the Fee Order. 8 We will consider each in turn.
i.
Explanation of Denial
Nagel Appellants assert that “[t]he District Court
should have, but did not, support its denial with a clear
8. In the “Issues Presented” section of their opening brief,
Nagel Appellants identify a fourth additional issue: “whether the
District Court erred in the selection of the lead firms by requesting
that the firms indicate the support of other firms applying for the
appointment and considering this ‘popularity’ factor.” However, they
provide no substantive argument to accompany this issue, either
in that introductory section or anywhere else in the brief, and the
issue is not raised in the opposition briefs or in Nagel Appellants’
reply. We will therefore treat the issue as waived. See In re Worlds
of Wonder Sec. Litig., 35 F.3d 1407, 1424 (9th Cir. 1994) (“[L]ack of
argument waives an appeal of [an] issue.”). Incidentally, a district
court’s selection of class counsel is reviewed for abuse of discretion,
see Sali v. Corona Reg’l Med. Ctr., 889 F.3d 623, 634-35 (9th Cir.
2018), and we see no indication that the district court’s consideration
of this or any other factor when it selected Class Counsel constituted
such an abuse.
54a
Appendix A
explanation based upon an evaluation of the underlying fee
petitions. This was legal error.” We disagree. The district
court was required only to “articulate with sufficient
clarity the manner in which it ma[de] its determination.”
Carter v. Caleb Brett LLC, 757 F.3d 866, 869 (9th Cir.
2014) (quoting Quesada v. Thomason, 850 F.2d 537, 539
(9th Cir. 1988)); see also McGinnis v. Ky. Fried Chicken
of Cal., 51 F.3d 805, 809 (9th Cir. 1994) (determining
that “when ruling on the appropriate amount of fees,
no rote recitation [of factors] is necessary” where the
court’s “decision gives [] no basis for doubting that [it]
was familiar with controlling law” and there is no “factor
which the judge failed to consider”). Here, the district
court sufficiently explained its decision. It first set forth
the guidance provided by Rule 23 and relevant appellate
decisions, and then accurately described the various
work Appellants performed both before and after the
appointment of Class Counsel—none of which constituted
“evidence that their services benefited the class as a
whole.” This is all that we require: a description of the
applicable standard and an engagement with the facts as
illustrated by the fee motions. It would be unreasonable
to expect the court to undertake an extensive analysis
of each individual motion9 when all that is needed is
engagement with the controlling law and explanation of
the court’s reasoning. As Volkswagen notes, “The fact
that Appellants’ fee motions were all found deficient for
similar reasons does not make the District Court’s ruling
insufficiently reasoned.” Because the district court’s order
9. In the aggregate, these 244 motions included more than
13,000 pages of supporting documentation.
55a
Appendix A
supplied the necessary level of explanation for its decision,
it did not abuse its discretion in this regard.
ii.
Parties’ Agreement
Noting that Rule 23 permits recovery of fees “that are
authorized . . . by the parties’ agreement,” Fed. R. Civ.
P. 23(h), Nagel Appellants contend that the district court
incorrectly concluded that Volkswagen did not agree to
pay the fees at issue here as part of the Settlement. But
the Settlement clearly provided only that “Volkswagen
agrees to pay reasonable attorneys’ fees and costs for
work performed by Class Counsel in connection with
the Action as well as the work performed by other
attorneys designated by Class Counsel to perform work
in connection with the Action.” (emphases added). No
other document filed as part of the Settlement indicates
any additional commitment on Volkswagen’s part.
Although Nagel Appellants suggest that class members
were “led to believe—via the Settlement Agreement—
that their attorneys would be reasonably compensated
by Defendants,” 10 this proposition is belied by the
Settlement’s Long Form Notice, which read,
Class Counsel will represent you at no charge
to you, and any fees Class Counsel are paid
will not affect your compensation under this
10. This assertion is apparently based on language in the Long
Form Notice that indicated that “Volkswagen will pay attorneys’
fees and costs in addition to the benefits it is providing to the class
members in this Settlement.” However, on the previous page, the
Notice specified that only Class Counsel would receive those fees.
56a
Appendix A
Class Action Settlement. If you want to be
represented by your own lawyer, you may hire
one at your own expense. It is possible that you
will receive less money overall if you choose
to hire your own lawyer to litigate against
Volkswagen rather than receive compensation
from this Class Action Settlement.
(emphasis added).11 Accordingly, there was no agreement
between the parties, either explicit or implicit, that
Volkswagen would compensate Appellants for their
efforts.
iii. Quantum Meruit and Unjust Enrichment
Lastly, Nagel Appellants suggest that the district
court erred when it failed to consider the equitable
principles of quantum meruit and unjust enrichment.
However, although a court’s power to award attorneys’
fees might be derived from equity, the existence of
this power alone does not vitiate the long-recognized
requirement that the work of a lawyer in a case like this
must benefit the class. If, as the district court concluded,
Appellants did not provide a substantial benefit, then
11. Nagel Appellants note that this language appeared under
the heading “Do I need to hire my own attorney . . . ?” and therefore,
“[g]iven that Independent Counsel had already been retained prior
to the Notice, Class Members would assume the provision, expressed
in a future tense, did not apply.” But however misleading the Long
Form Notice might have been on this point, this ambiguity certainly
did not constitute an agreement that Volkswagen would pay nonClass Counsel’s fees.
57a
Appendix A
neither the class members nor Class Counsel would have
been unjustly enriched at Appellants’ expense. Nagel
Appellants’ invocation of quantum meruit therefore only
begs the original question of whether non-Class Counsel’s
efforts benefited the class. As they did not, no unjust
enrichment occurred.
III. The Lien Order
Feinman, in his separate brief, ostensibly appeals, like
the other Appellants, from the Fee Order. He indicates
that “[t]his is an appeal from the United States District
Court for the Northern District of California in which the
trial court determined Volkswagen is not required to pay
Non-Class Counsel attorney fees and costs.” However, the
main focus of his appeal, as evidenced by his preliminary
statement, is the “injunction issued by the District Court
for the Northern District of California in the Volkswagen
Clean Diesel litigation enjoining efforts to assert attorney
fee lien claims under State law”—the Lien Order. It is
that injunction, and not the Fee Order, that is the basis of
Feinman’s various arguments: that the injunction violated
the Anti-Injunction Act; that the district court did not
have subject matter jurisdiction to issue the injunction
as to his Virginia lien; that the injunction had the effect
of imposing the cost of removing polluting vehicles from
the roadway on him; that the injunction was premised on
an unfounded legal premise; that the injunction violated
his due process rights; and that the injunction violated
the Fifth Amendment. Indeed, Feinman’s conclusion and
request for relief references only the Lien Order and not
the Fee Order.
58a
Appendix A
The district court already vacated the Lien Order
and its injunction, and so they are no longer in effect.
Therefore, all of the issues contained in Feinman’s brief
were rendered moot, and we need not consider them. See
Berkeley Cmty. Health Project v. City of Berkeley, 119
F.3d 794, 795 (9th Cir. 1997) (“Because the district court
has vacated its preliminary injunction, this appeal is
dismissed as moot.”). Both Feinman’s opening brief and
his reply brief demonstrate that he is, in effect, asking us
for an advisory opinion: “What Feinman wants from this
appeal is a ruling that nothing the Northern District of
California Court ruled can prohibit Feinman from seeking
to enforce his attorney fee lien rights against Defendant
Volkswagen. . . . Feinman has no interest in violating a
Federal Court injunction and merely seeks to assert his
claim in Virginia State Courts free from jeopardy.” He
even concedes that “[i]f the concession of Volkswagen
and the Plaintiff-Appellees that the issue is moot makes
it so Feinman can have the relief requested, there is no
need to go further.” There is no doubt that the issues he
raised are indeed moot. Whether he “can have the relief
requested”—which is to say, a lien against Volkswagen
pursuant to Virginia law—is not an issue properly before
us.12
12. We might infer from Feinman’s opening brief that his
jurisdictional challenge applies to the Fee Order as well as the
vacated injunction. Such an argument would have no merit. We have
held that “[a] transferee judge exercises all the powers of a district
judge in the transferee district under the Federal Rules of Civil
Procedure,” which includes “authority to decide all pretrial motions,
including dispositive motions such as motions to dismiss, motions for
summary judgment, motions for involuntary dismissal under Rule
59a
Appendix A
CONCLUSION
We are sympathetic to Appellants, and have no
doubt that many of them dutifully and conscientiously
represented their clients. This is not necessarily a case
where latecomers attempt to divide spoils that they did
not procure.13 But Appellants’ efforts do not entitle them
to compensation from the MDL, when the record indicates
that they did not perform work that benefited the class,
and that they neglected to follow the protocol mandated
by the district court. We commend the district court’s
efforts to successfully manage a massive and potentially
ungainly MDL, and conclude that the court did not abuse
its discretion when it determined that Appellants were not
entitled to compensation.
Accordingly, we AFFIRM the district court’s denial
of Appellants’ motions for attorneys’ fees.
41(b), motions to strike an affirmative defense, and motions for
judgment pursuant to a settlement.” In re Phenylpropanolamine
(PPA) Prods. Liab. Litig., 460 F.3d 1217, 1230-31 (9th Cir. 2006)
(emphasis added); see also K.C. ex rel. Erica C. v. Torlakson, 762
F.3d 963, 968 (9th Cir. 2014) (“There is no debate that a federal
court properly may exercise ancillary jurisdiction ‘over attorney fee
disputes collateral to the underlying litigation.’” (quoting Fed. Sav.
& Loan Ins. Corp. v. Ferrante, 364 F.3d 1037, 1041 (9th Cir. 2004))).
Therefore, the district court had jurisdiction over the attorneys’
fees motions.
13. See generally Florence White Williams, The Little Red
Hen (1918).
60a
B THE UNITED
APPENDIX B —Appendix
ORDER OF
STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA, FILED
APRIL 24, 2017
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MDL No. 2672 CRB (JSC)
IN RE: VOLKSWAGEN “CLEAN DIESEL”
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION
ORDER DENYING NON-CLASS COUNSEL’S
MOTIONS FOR ATTORNEYS’ FEES
This Order Relates To: ALL ACTIONS (except the
securities action)
Six months ago, this Court approved a settlement
between Volkswagen and owners and lessees of certain
model Volkswagen and Audi 2.0-liter TDI diesel vehicles,
resolving claims predicated on Volkswagen’s use of a
“defeat device” in those vehicles—software designed to
cheat emissions tests. Shortly after final approval of the
2.0-liter Settlement, plaintiffs’ Lead Counsel, and the
21 other attorneys the Court appointed to the Plaintiffs’
Steering Committee (“PSC,” and together with Lead
Counsel, “Class Counsel”), filed a motion for $167 million
in attorneys’ fees and $8 million in costs on behalf of “all
counsel performing common benefit services under the
provisions of [Pretrial Order No.] 11” for work performed
in connection with the consolidated class action complaint
61a
Appendix B
and resulting settlement. (Dkt. No. 2175 at 5.) The Court
granted Class Counsel’s motion in March. (Dkt. No. 3053.)
Now before the Court are 244 motions for attorneys’
fees and costs filed by attorneys who did not serve as
Class Counsel, and who were not compensated out of the
$175 million ultimately awarded for common benefit work
(collectively referred to as “Non-Class Counsel”).1 NonClass Counsel, in many instances, filed complaints against
Volkswagen in courts throughout the United States prior
to consolidation of the litigation before this Court. Before
and after the Court appointed Class Counsel, Non-Class
Counsel also monitored the proceedings, and ultimately
advised their clients on the Settlement’s terms. For
these services, they seek attorneys’ fees and costs from
Volkswagen. Because Volkswagen did not agree to pay
these fees and costs as part of the Settlement, and because
Non-Class Counsel have not offered evidence that their
services benefited the class, as opposed to their individual
clients, the Court DENIES the motions. To the extent that
Non-Class Counsel seek to enforce their fee agreements
with individual clients, however, they may bring such
claims in an appropriate venue.
BACKGROUND
After the public learned in September 2015 that
Volkswagen had installed defeat devices in its “clean
diesel” 2.0-liter TDI vehicles, ligation quickly ensued.
Attorneys filed complaints against Volkswagen on behalf
1. A list of the docket entries for the 244 motions is attached
to this Order as an Appendix.
62a
Appendix B
of consumers across the country, and government entities
launched criminal and civil investigations. (See Dkt. No.
1609 at 11.) On December 8, 2015, the Judicial Panel on
Multidistrict Litigation transferred all related federal
actions to this Court, where more than 1,200 cases have
since been consolidated. (See Dkt. No. 2175-1 ¶ 3.)
In January 2016, the Court appointed Elizabeth J.
Cabraser of Lieff Cabraser Heimann & Bernstein, LLP as
Plaintiffs’ Lead Counsel and as Chair of the PSC, to which
the Court also named 21 other attorneys. (See Pretrial
Order No. 7, Dkt. No. 1084.) The Court tasked the PSC
with conducting and coordinating the MDL litigation, but
vested Lead Counsel with authority to retain the services
of other attorneys to perform work for the benefit of the
class. (See id. ¶ 2; Pretrial Order No. 11, Dkt. No. 1254
at 1-2.)
In the months that followed, Class Counsel prosecuted
the consumers’ civil cases and worked with Volkswagen,
federal and state agencies, and the Court appointed
Settlement Master, to try and resolve the claims asserted.
(See Dkt. No. 1609 at 11-12.) Class Counsel filed initial and
amended consolidated class action complaints, conducted
common discovery, and ultimately negotiated the 2.0-liter
Settlement with Volkswagen (Dkt. No. 1685), which the
Court approved on October 25, 2016. (Dkt. No. 2102.)
With regard to attorneys’ fees and costs, the Settlement
Agreement provides that Volkswagen will “pay reasonable
attorneys’ fees and costs for work performed by Class
Counsel in connection with the Action as well as work
performed by other attorneys designated by Class Counsel
63a
Appendix B
to perform work in connection with the Action . . . .” (Dkt.
No. 1685 ¶ 11.1.) The Settlement Agreement defines Class
Counsel as “Lead Counsel [i.e., Ms. Cabraser] and the
PSC.” (Id. ¶ 2.19.)
In early November 2016, Class Counsel filed a motion
seeking $167 million in attorneys’ fees and $8 million in
costs on behalf of “all counsel performing common benefit
services under the provisions of [Pretrial Order No.] 11.”
(Dkt. No. 2175 at 5.) In addition to seeking fees for work
performed by the PSC, the motion also sought fees for
the work of nearly 100 other law firms who Lead Counsel
authorized to perform common benefit work. (See Dkt.
No. 2175-1 ¶ 7.) The common benefit work included not
only time spent drafting pleadings and participating in
negotiations, but also time spent communicating with
class members, which includes 20,000 communications
between PSC attorneys and class members. (Id. ¶ 3.) Class
Counsel’s fees motion also included 21,287 hours of reserve
time to cover work necessary to “guide the hundreds
of thousands of Class Members through the remaining
26 months of the Settlement Claims Period.” (Id. ¶ 15.)
Recognizing that counsel had achieved an extraordinary
result for the class and the public as a whole, the Court
granted the fees motion in March of this year. (Dkt. No.
3053 at 3.)
At the time the Court awarded fees, it noted that
various class members’ private attorneys—i.e., Non-Class
Counsel—had also filed motions for fees and costs. (Id. at
2 n.1.) Some non-class attorneys began filing these motions
even before the Court approved the 2.0-liter Settlement
(see, e.g., Dkt. No. 2029, filed on October 13, 2016), while
64a
Appendix B
the bulk of the motions were filed in late December 2016
and early January 2017. Some non-class attorneys initially
took a different approach, placing liens on several class
members’ settlement proceeds. (See Dkt. No. 2159.) The
Court, in two related orders, enjoined any state court
action seeking to enforce feerelated liens, assignments,
trust-account agreements, or other means that could
diminish class members’ recovery under the Settlement.
(Dkt. Nos. 2247, 2428.) The Court also ordered Volkswagen
to pay class members the full amount to which they were
entitled under the terms of the Settlement. (Id.)
In total, Non-Class Counsel have now filed 244 motions
for attorneys’ fees and costs. The motions vary in length
and detail, but ultimately raise similar bases for relief. A
significant number of the motions seek fees for time spent
filing individual and class complaints against Volkswagen
prior to the centralization of proceedings before this
Court. 2 Many of the motions also seek fees for time spent
communicating with class members—both before and
after the Court appointed Class Counsel—monitoring
MDL proceedings, and ultimately advising clients on the
2.0-liter Settlement. 3
2. (See, e.g., Dkt. No. 2272 at 5 (“We were one of the first
filed complaints in the Commonwealth of Pennsylvania.”); Dkt. No.
2531 (filed putative class action complaint in the Central District
of Illinois); Dkt. No. 2588 (filed putative class action complaint in
the Eastern District of Virginia); Dkt. No. 2729 (filed complaints
in 14 district courts on behalf of 697 individuals who purchased
Volkswagen vehicles).)
3. (See, e.g., Dkt. No. 2696 (“Met and corresponded with
Plaintiff regarding his individual claims, settlement, and various
other issues arising during [the] course of this litigation.”); Dkt.
65a
Appendix B
On February 13, 2017, Volkswagen filed an omnibus
opposition to Non-Class Counsel’s motions for attorneys’
fees and costs. (Dkt. No. 2903.) Volkswagen argues that
it has no obligation to pay the fees of Non-Class Counsel
under the Settlement or governing law. Non-Class Counsel
responded by filings numerous reply briefs in support of
their motions.4
DISCUSSION
The question at issue is whether the Court should
require Volkswagen to pay Non-Class Counsel attorneys’
fees and costs as a result of the 2.0-liter Settlement.
Because Volkswagen did not agree to pay these fees, and
because Non-Class Counsel’s work did not benefit the class
as a whole, the answer is no.
No. 2532 (“Counsel[ed] and advise[d] the Class Member as to
developments in the [MDL]” and the “‘pros and cons’ of the
[Settlement].”); Dkt. No. 2648 at 6 (participated in “discussions
with class members after each hearing and regarding the
Settlement”).)
4. Many non-class attorneys argue in their reply briefs that
the Court should disregard Volkswagen’s opposition as untimely.
(See, e.g., Dkt. No. 2927 at 2-3; Dkt. No. 2952 at 2.) Volkswagen filed
its omnibus opposition on February 13, 2017, more than 14 days
after each nonclass attorney filed his or her motion. See Local Rule
7-3(a). Under the unique circumstances at issue, however, where
Volkswagen needed to respond to 244 separate motions, and where
these motions were filed on a rolling basis, the Court concludes that
Volkswagen filed its opposition within a reasonable period of time.
In the future, however, Volkswagen (and other parties seeking to
file pleadings outside of the time periods prescribed in the Local
Rules) should seek leave in advance to file late pleadings.
66a
Appendix B
Federal Rules of Civil Procedure 23(h) provides
that, “[i]n a certified class action, the court may award
reasonable attorneys’ fees and nontaxable costs that are
authorized by law or by the parties’ agreement.” Fed. R.
Civ. P. 23(h). The second of these two avenues clearly does
not apply here, because Volkswagen did not agree to pay
the fees at issue as part of the Settlement Agreement. The
Settlement Agreement provides that Volkswagen will “pay
reasonable attorneys’ fees and costs for work performed
by Class Counsel in connection with the Action as well as
work performed by other attorneys designated by Class
Counsel to perform work in connection with the Action.”
(Dkt. No. 1685 ¶ 11.1 (emphasis added).) Non-Class
Counsel are, by definition, not “Class Counsel,” nor do
they assert that the fees at issue are for work “designated
by Class Counsel.” Non-Class Counsel therefore cannot
demonstrate that an award of attorneys’ fees and costs is
“authorized . . . by the parties’ agreement.” Fed. R. Civ.
P. 23(h). 5
The first avenue under Rule 23(h)—that the Court
may award fees and costs that are authorized by law—
also does not apply. In “common fund” cases, a court may
5. At least one non-class law firm has offered evidence
that it provided substantive information to PSC counsel upon
request. (See Dkt. No. 2176-2 ¶ 8.) That law firm, however, does
not currently seek compensation for that work, for which it may
have already been compensated as part of the award of attorneys’
fees made to Class Counsel. Other non-class attorneys assert that
they made suggestions to the PSC regarding the language used in
the consolidated class action complaints. (See, e.g., Dkt. No. 2316.)
Those attorneys, however, have not submitted evidence that Lead
Counsel requested and authorized this work.
67a
Appendix B
award non-class counsel a reasonable attorney’s fee only if
counsel’s work conferred a benefit on the class, as opposed
to on an individual client. See In re Cendant Corp. Secs.
Litig, 404 F.3d 173, 191 (3d Cir. 2005) (“Non-lead counsel
will have to demonstrate that their work conferred a
benefit on the class beyond that conferred by lead counsel.”
(emphasis in original)); Gottlieb v. Barry, 43 F.3d 474,
489 (10th Cir. 1994) (holding that non-lead counsel should
receive compensation if “they have . . . conferred a benefit
on the class”); cf. Stetson v. Grissom, 821 F.3d 1157, 1164
(9th Cir. 2016) (holding that, to be entitled to an award
of attorneys’ fees, an objector “must increase the fund
or otherwise substantially benefit the class members”
(internal quotation marks omitted)). Non-Class Counsel
have not made such a showing here.
First, Non-Class Counsel’s filing of individual and
class complaints prior to the MDL did not benefit the class.
These cases were consolidated before this Court as part of
a multidistrict litigation less than three months after the
public disclosure of Volkswagen’s use of a defeat device.
And approximately four months after the disclosure,
the Court appointed Class Counsel to prosecute the
consolidated consumer class action. There consequently
was little to any pretrial activity in the cases filed by NonClass Counsel, and the filings alone did not materially
drive settlement negotiations with Volkswagen. See In
re Cendant, 404 F.3d at 191, 196, 204 (explaining that
non-class counsel should not normally be compensated
for “fil[ing] complaints and otherwise prosecut[ing] the
early stages of litigation,” which is best viewed as an
“entrepreneurial effort,” rather than as work that benefits
the class). The relatively short time period between the
68a
Appendix B
public disclosure of Volkswagen’s use of a defeat device
and the consolidation of proceedings also distinguishes
this case from Gottlieb, 43 F.3d at 488-89, where the Tenth
Circuit reversed a district court order that did not award
fees to non-class counsel who had “vigorously pursued
[numerous] cases for sixteen months before class counsel
was designated.” Id. at 488 (emphasis added). Here, by
contrast, Non-Class Counsel simply did not have the
time needed to materially impact the consolidated class
proceedings.
Second, Non-Class Counsel offers evidence that, before
the appointment of Class Counsel, they fielded hundreds
of phone calls from prospective and actual clients, and
consulted with prospective class members about their
potential legal claims. While undoubtedly requiring time
and effort, this work at most benefited individual class
members, not the class as a whole. See, e.g., In re Auction
Houses Antitrust Litig., No. 00-CIV-0648., 2001 WL
210697, at *4 (S.D.N.Y. Feb. 26, 2001) (finding no reason
“for the class as a whole to compensate large numbers of
lawyers for individual class members for keeping abreast
of the case on behalf of their individual clients”). Further,
the significant majority of 2.0-liter class members did
not retain private counsel. In the 244 motions at issue,
counsel seek fees for their work representing 3,642 class
members, which represents only 0.74 percent of the total
class of 490,000. (See Dkt. No. 1976 at 6.) That such a small
percentage of class members actually retained Non-Class
Counsel makes it even less likely that Non-Class Counsel’s
services benefited the class as a whole.
69a
Appendix B
Third, Non-Class Counsel seek fees and expenses for
services provided after the Court appointed Class Counsel,
including time spent monitoring class proceedings,
keeping class members informed, and ultimately advising
class members on the terms of the proposed Settlement.
Similar to Non-Class Counsel’s efforts prior to the
appointment of Class Counsel, the Court “cannot see
how the monitoring itself benefits the class as a whole, as
opposed to the attorney’s individual client.” In re Cendant
Corp., 404 F.3d at 201. Further, after this Court appointed
Class Counsel, it explained that only “Court-appointed
Counsel and those attorneys working on assignments
. . . that require them to review, analyze or summarize
. . . filings or Orders [in these proceedings] are doing so
for the common benefit.” (Dkt. No. 1253 at 4.) Non-Class
Counsel therefore were on notice that they would not
receive common benefit compensation for these efforts.
As for the time Non-Class Counsel spent advising
class members on the terms of the Settlement, this work
was duplicative of that undertaken by Class Counsel, and
therefore did not “confer[] a benefit beyond that conferred
by lead counsel.” In re Cendant Corp., 404 F.3d at 191.
As noted in Class Counsel’s motion for attorneys’ fees,
by the time the Court approved the 2.0-liter Settlement,
the law firms comprising the PSC had logged over 20,000
communications with class members, responding to
questions and requests for information. (See Dkt. No. 21751 ¶ 3.) Additionally, as part of an expansive Settlement
Notice Program, the parties established a Settlement
call center and website, which—as of the final Settlement
approval hearing on October 18, 2016—had respectively
received more than 130,000 calls and more than 1 million
visits. (See Dkt. No. 2102 at 26.) Lead Counsel’s fees award
70a
Appendix B
also included 21,287.4 hours of reserve time to cover
additional work necessary to, among other things, guide
the class members through the remaining Settlement
Claims Period. (See Dkt. No. 2175-1 ¶ 15.) Thus, even
without retaining Non-Class Counsel, class members
could, did, and continue to obtain legal advice from Lead
Counsel and the PSC.
Finally, Non-Class Counsel’s requests for fees and
costs for work performed after the Court appointed Class
Counsel are deficient in another—procedural—respect.
In Pretrial Order No. 11, this Court explained that all
plaintiffs’ attorneys needed to obtain Lead Counsel’s
authorization to perform compensable common benefit
work. (See Dkt. No. 1254 at 1-2 (noting that the recovery
of common benefit attorneys’ fees would be limited to
Lead Counsel, members of the PSC, and “any other
counsel authorized by Lead Counsel to perform work that
may be considered for common benefit compensation”).)
As noted above, Non-Class Counsel have not asserted
that they obtained authorization from Lead Counsel to
perform the common benefit work for which they now seek
compensation, as required.
In sum, because Volkswagen did not agree to pay
the fees and costs at issue as part of the Settlement, and
because Non-Class Counsel have not offered evidence that
their services benefited the class as a whole, Volkswagen
is not required to pay Non-Class Counsel’s attorneys’ fees
and costs as a result of the 2.0-liter Settlement.6
6. Certain non-class counsel argue that they are entitled to
attorneys’ fees because they filed complaints bringing claims under
statutes with fee-shifting provisions, providing that a “prevailing
71a
Appendix B
***
While Non-Class Counsel are not entitled to fees
from Volkswagen as part of this class action, Non-Class
Counsel may be entitled to payment of certain fees and
costs pursuant to attorney-client fee agreements. This is a
matter of contract law, subject to the codes of professional
conduct, and such disputes should be resolved in the
appropriate forum. To that end, the Court VACATES
the injunction on state court actions, to the extent
those actions are brought to enforce an attorney-client
fee agreement. Volkswagen, however, must continue to
“directly pay consumers the full amount to which they are
entitled under the Settlement” for all the reasons stated
in the Court’s previous Order. (Dkt. No. 2428 at 2.)
party” may recover attorneys’ fees and expenses. (See, e.g., Dkt.
No. 2356 at 2-3 (citing South Carolina Dealers Act, S.C. Code
§ 56-15-110); Dkt. No. 2243 at 2 (citing Magnuson-Moss Warranty
Act, 15 U.S.C. § 2310).) To the extent that class members are
prevailing parties as a result of the 2.0-liter Settlement, however,
they prevailed because of the work of Lead Counsel and the PSC,
not because of Non-Class Counsel’s efforts. As a result, awarding
fees to Non-Class Counsel under these provisions would be
inappropriate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)
(reasoning that a “prevailing party” should be awarded fees based
on the “value of a lawyer’s services”). Further, the Ninth Circuit
has held that, “[a]pplication of the common fund doctrine to class
action settlements does not compromise the purposes underlying
fee-shifting statutes,” and “common fund fees can be awarded
[even] where statutory fees are available.” Staton v. Boeing Co.,
327 F.3d 938, 968-69 (9th Cir. 2003).
72a
Appendix B
To the extent that a non-class attorney brings an
action against his or her client or makes a demand to
enforce a fee agreement, the Court orders that attorney
to first provide his or her client with a copy of this Order,
and to file a certificate of service with this Court.
IT IS SO ORDERED.
Dated: April 24, 2017
/s/
CHARLES R. BREYER
United States District Judge
73a
C the UNITED
Appendix c —Appendix
ORDER of
STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA, filed
November 22, 2016
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MDL No. 2672 CRB (JSC)
IN RE: VOLKSWAGEN “CLEAN DIESEL”
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION
This Order Relates To:
ALL ACTIONS (except the securities action)
November 22, 2016, Decided
November 22, 2016, Filed
ORDER RE: ATTORNEYS’ LIENS
Volkswagen has notified the Court that certain
attorneys have placed liens on several Class Members’
settlement proceeds. (See Dkt. No. 2159.) Specifically, The
Driscoll Firm, P.C.; Wayne Wright LLP; Lashley & Baer,
P.C.; the Davis Law Firm; and Aylstock, Witkin, Kreis &
Overholtz, PLLC have sent letters to Volkswagen Group
of America, Inc.; Volkswagen AG; Audi of America, LLC;
and/or Audi AG (collectively, “Volkswagen”) notifying
them that they have placed attorneys’ liens on their clients’
recovery under the Amended Consumer and Reseller
Dealership Class Action Settlement (“Settlement”).
74a
Appendix C
(Dkt. Nos. 2159-1, 2159-2, 2159-3, 2159-4, 2159-5, 2159-6;
see Dkt. No. 1685.) These five firms claim to represent
approximately 1,185 Class Members.1 (See Dkt. No. 2159
at 2.)
It is obvious that satisfaction of these liens would have
a substantial impact on Class Members. Not only does a
reduced payment fail to adequately compensate Class
Members, but it also negatively effects the environmental
benefits contemplated by the Settlement. With a smaller
cash payment, Class Members may have little incentive
to sell their vehicles back and, as a result, these vehicles
will remain in their current polluting state. For the
reasons set forth below, the Court ORDERS Volkswagen
to pay Class Members their Settlement compensation
directly and in full, notwithstanding any purported liens
on that compensation. Not only does recognizing these
liens require Volkswagen to violate the terms of the
Settlement, but ensuring that Class Members are made
whole, whether or not they retained counsel, must be the
highest priority.
DISCUSSION
When the Court granted final approval of the
Settlement, it “retain[ed] the exclusive jurisdiction to
enforce, administer, and ensure compliance with all terms
of the Settlement in accordance with the Settlement and
1. This figure takes into account any duplicate names listed
in The Driscoll Firm’s June 28, 2016 and August 17, 2016 letters.
(See Dkt. Nos. 2159-1, 2159-3.)
75a
Appendix C
this Order.” (Dkt. No. 2102 at 48.) As such, the Court
possesses ancillary jurisdiction to adjudicate any lien
disputes that arise from the Settlement. See Fed. Sav.
& Loan Ins. Corp. v. Ferrante, 364 F.3d 1037, 1041-42
(9th Cir. 2004) (explaining “ancillary jurisdiction exists
over attorney fee disputes collateral to the underlying
litigation” and noting “[h]ad [the firm] attempted to assert
its attorney liens for services performed in connection
with a particular action, it might have successfully invoked
ancillary jurisdiction”); Curry v. Del Priore, 941 F.2d 730,
731 (9th Cir. 1991) (“Courts have long recognized that fee
disputes arising from litigation pending before a district
court fall within that court’s ancillary jurisdiction.”); see
also Elusta v. City of Chicago, 696 F.3d 690, 694 (7th Cir.
2012) (“Attorney’s fee disputes are closely enough related
to the underlying litigation to be the basis for supplemental
jurisdiction, even if other attorney-client disputes, such as
malpractice actions, are not.”); Guy v. Lexington-Fayette
Urban Cty. Gov’t, 624 F. App’x 922 (6th Cir. 2015) (district
court had jurisdiction over motion to quash attorney’s lien
where lien was “’so related to claims in the action within .
. . original jurisdiction that they form[ed] part of the same
case’” (edits in Guy; quoting 28 U.S.C. § 1367(a)).
Among other things, the Settlement seeks to make
Class Members whole. (See Dkt. No. 1976 at 13, 15.) As
the Federal Trade Commission (“FTC”) explains, “[t]o be
made whole, consumers must receive full compensation
for their vehicles’ full retail value and all other losses
caused by Volkswagen’s deception. Full compensation
has to be sufficient for consumers to replace their
vehicle.” (Dkt. No. 1781 at 1.) To effectuate this goal, the
76a
Appendix C
Settlement requires Volkswagen to pay cash compensation
directly to Class Members. See, e.g., Dkt. No. 1685 ¶ 2.16
(“‘Lessee Restitution’ means monetary compensation that
Volkswagen will pay to Eligible Lessees . . . .” (emphasis
added)), ¶ 2.52 (“‘Owner Restitution’ means monetary
compensation that Volkswagen will pay to Eligible Owners
. . . .” (emphasis added)), ¶ 2.60 (“‘Seller Restitution’
means monetary compensation that Volkswagen will
pay to Eligible Sellers . . . .”) (emphasis added)). 2 The
compensation provided under the Settlement “restore[s]
Class members to the positions they would have occupied
if Defendants had never committed the frauds.” (Dkt. No.
1976 at 13.) In other words, the Settlement ensures Class
Members who participate in a Buyback have sufficient
cash to purchase a comparable replacement vehicle and
thus facilitates removal of the polluting vehicles from the
road.
2. The FTC’s Consent Order likewise states that payments
shall be made directly to consumers. See Dkt. No. 1607 ¶ H
(“‘Consumer Payment’ means any payment under the Settlement
Program made directly to an Eligible Consumer or to a lender
on behalf of an Eligible Owner for the purpose of satisfying an
outstanding Loan Obligation related to an Eligible Vehicle.”
(emphasis added)).
That said, Eligible Owners who are eligible for Loan
Forgiveness may have some or all of their compensation paid
directly to their lenders. (Dkt. No. 1685 ¶ 4.2.2; Dkt. No. 1685-1
¶ 14.) This still makes Eligible Owners whole; even if they do not
receive cash, it relieves them of their obligation to make payments
on a vehicle they no longer own.
77a
Appendix C
An attorneys’ lien on a Class Member’s recovery
frustrates this goal. By diverting a portion of Class
Members’ compensation to private counsel, a lien reduces
Class Members’ compensation and places them in a
position where they must purchase another vehicle but
lack the funds to do so. Put another way, attorneys—
notably, attorneys who did not have a hand in negotiating
the Settlement—stand to profit while their clients are left
with inadequate compensation. 3 This interferes with the
Settlement’s purpose and the Class Member’s decision
to participate. By electing to remain part of the Class,
consumers can and should expect to be compensated in
an amount determined by the Settlement terms, not by
attorneys who may have played no role in obtaining the
Settlement.
3. For instance, The Driscoll Firm’s “retainer agreements
with Claimants provides [sic] for a contingent attorney’s fee to the
Firm of forty percent (40%) of any amount paid in settlement or to
satisfy any judgment after suit is filed.” (Dkt. Nos. 2159-1 at ECF
p.1, 2159-3 at ECF p.1.) Assume, for argument’s sake, that each
of The Driscoll Firm’s clients is an Eligible Owner entitled to the
minimum restitution payment of $5,100. (See Dkt. No. 1685-3 at
8-9.) Of that, The Driscoll Firm would take $2,040, leaving each
client with only $3,060. Under these facts and with approximately
362 clients, The Driscoll Firm would be entitled to a total of
$736,480. This figure could also reasonably be expected to be
greater, as the $5,100 represents only the minimum, guaranteed
amount of Restitution and does not include compensation for
selling the vehicle back to Volkswagen in a Buyback. Indeed, if
The Driscoll Firm takes 40% of an Eligible Owner’s Buyback
package—the cash received in a Buyback plus Restitution—its
fees could easily run into the millions of dollars.
78a
Appendix C
Accordingly, the Court orders Volkswagen to pay
Class Members the full amount of compensation as
required by the terms of the Settlement, regardless
of whether an attorney purports to have placed a lien
on those funds. First, the Settlement does not allow
Volkswagen to make payments to Class Members’ private
attorneys. Should Volkswagen recognize these liens and
direct payment to counsel, Volkswagen risks violating the
Settlement. Second, complete payment to Class Members
is necessary to fulfill the Settlement’s purpose of making
Class Members whole; a Class Member’s ability to
purchase a comparable vehicle should not be hampered by
an attorneys’ lien. Finally, providing Class Members with
the funds effectuates another goal of the Settlement—to
ensure that polluting vehicles are removed from the
roads. (See Dkt. No. 1976 at 16.) If Class Members do not
receive sufficient monies to replace their vehicles, or if
their compensation is otherwise reduced, they have little
incentive to participate in the Settlement’s Buyback or Fix
programs. As a result, Class Members will likely continue
to use their vehicles in their current polluting state. For
these reasons, it is necessary that Volkswagen compensate
Class Members in strict compliance with the Settlement.
Even if Volkswagen provides Class Members their
full compensation, however, attorneys could seek to
litigate their liens in state court. This too frustrates the
administration and purpose of the Settlement. Given
that the Court retains jurisdiction to enforce and ensure
compliance with the Settlement, it now invokes its
authority under the All Writs Act to enjoin any state court
proceedings regarding attorneys’ lien on Class Members’
settlement compensation.
79a
Appendix C
The All Writs Act provides that “all courts established
by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” 28 U.S.C.
§ 1651. This broad grant of authority is limited by the
Anti-Injunction Act, which prohibits federal courts from
enjoining state court proceedings “except where expressly
authorized by Act of Congress, or where necessary in aid of
its jurisdiction, or to protect or effectuate its judgments.”
28 U.S.C. § 2283. Nonetheless, “[u]nder an appropriate set
of facts, a federal court entertaining complex litigation,
especially when it involves a substantial class of persons
from multiple states, or represents a consolidation of cases
from multiple districts, may appropriately enjoin state
court proceedings in order to protect its jurisdiction.”
In re Diet Drugs, 282 F.3d 220, 235 (3d Cir. 2002). An
injunction is appropriate here to preserve the Court’s
jurisdiction. If attorneys seek to enforce their liens in
state court, such proceedings will interfere with the
Court’s ability to enforce and ensure compliance with
the Settlement terms, such as Volkswagen’s obligation
to directly pay consumers the full amount to which they
are entitled under the Settlement. For that reason, the
Court enjoins any state court proceeding relating to an
attorneys’ lien on any Class Member’s recovery under
the Settlement.
CONCLUSION
Under the power conferred by the All Writs Act,
together with the Court’s retention of jurisdiction over
the enforcement and administration of the Settlement,
the Court ORDERS the following:
80a
Appendix C
1.
Volkswagen shall pay Class Members directly the
full amount to which they are entitled under the
terms of the Settlement, notwithstanding any lien
an attorney purports to impose on those funds.
2.
The Court ENJOINS any state court action
relating to attorneys’ liens on Class Members’
Settlement compensation.
3.
The Court understands that some attorneys may
have provided Class Members with compensable
services. As with Class Counsel, those attorneys
will not be paid out of the Settlement, and the
Court will determine the appropriate amount of
fees, if any. If an attorney seeks to recover fees
in accordance with his or her lien, he or she shall
file with the Court a separate application for each
Class Member supported by declaration. The
application shall set forth the amount sought; the
specific legal service(s) provided, including time
records; and the terms of the fee agreement that
require such an award, and shall include a signed
copy of the agreement. Any declarations shall be
filed by November 29, 2016.
IT IS SO ORDERED.
Dated: November 22, 2016
/s/ Charles R. Breyer
CHARLES R. BREYER
United States District Judge
81a
Appendix D —Appendix
ORDER D
of the united
states court of appeals FOR THE NINTH
CIRCUIT, FILed february 28, 2019
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: VOLKSWAGEN “CLEAN DIESEL”
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION,
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON; ANNE
DUNCAN ARGENTO; SIMON W. BEAVEN;
JULIET BRODIE; SARAH BURT; AIMEE
EPSTEIN; GEORGE FARQUAR; MARK HOULE;
REBECCA KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER; LEO
WINTERNITZ; MARCUS ALEXANDER DOEGE;
LESLIE MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON; MICHAEL
R. CRUISE; JOHN C. DUFURRENA; SCOTT
BAHR; KARL FRY; CESAR OLMOS; BRITNEY
LYNNE SCHNATHORST; CARLA BERG; AARON
JOY; ERIC DAVIDSON WHITE; FLOYD BECK
WARREN; THOMAS J. BUCHBERGER; RUSSELL
EVANS; CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA; MARK
ROVNER; WOLFGANG STEUDEL; ANNE MAHLE;
DAVID MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ; NANCY
L. STIREK; REBECCA PERLMUTTER; ADDISON
82a
Appendix D
MINOTT; RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN BEDARD;
ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;
MICHAEL CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD; THOMAS
W. AYALA; HERBERT YUSSIM; NICHOLAS
BOND; BRIAN J. BIALECKI; KATHERINE
MEHLS; WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING; RACHEL
OTTO; WILLIAM ANDREW WILSON; DAVID
EBENSTEIN; MARK SCHUMACHER; CHAD DIAL;
JOSEPH HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
BISHOP, HEENAN & DAVIES; et al.,
Objectors-Appellants,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.;
VOLKSWAGEN, AG; AUDI, AG; AUDI OF AMERICA,
LLC; PORSCHE CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT BOSCH, LLC,
Defendants-Appellees.
Nos. 17-16020, 17-16065, 17-16067, 17-16068, 17-16082, 1716083, 17-16089, 17-16092, 17-16099, 17-16123, 17-16124,
17-16130, 17-16132, 17-16156, 17-16158, 17-16172, 17-16180
83a
Appendix D
D.C. No. 3:15-md-02672-CRB Northern District
of California, San Francisco
ORDER
Before: M. SMITH and NGUYEN, Circuit Judges, and
RESTANI,* Judge.
Judges M. Smith and Nguyen have voted to deny the
petition for rehearing en banc, and Judge Restani has
so recommended. The full court has been advised of the
petition for rehearing en banc and no judge of the court has
requested a vote on it. Fed. R. App. P. 35. The petition for
rehearing en banc is DENIED.
* The Honorable Jane A. Restani, Judge for the United
States Court of International Trade, sitting by designation.
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