Petition for Writ of Certiorari — James Ben Feinman, Petitioner v. Volkswagen Group of America, Inc.
Supreme Court briefFeb 22, 2021
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No. 20In the
Supreme Court of the United States
In re: VOLKSWAGEN “CLEAN DIESEL” MARKETING,
SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION
––––––––––––––––––––––––––––––
JAMES BEN FEINMAN,
Petitioner,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.,
Respondent.
On Petition for Writ of Certiorari to the United States
Court of A ppeals for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
Norman A. Thomas
Counsel of Record
Norman A. Thomas, PLLC
1015 East Main Street
Lower Level
Richmond, VA 23219
(804) 303-9538
norman@normanthomaslaw.com
Counsel for Petitioner
302284
A
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
1.
Is one bound by a judgment in personam in a class action litigation in
which he or she is not designated as a party, is not a member of the class, and
to which he or she has not been made a party by service of process?
2.
Does judicial action enforcing a class action settlement purporting to
release the vested statutory property rights of one who is not a party, is not a
member of the class, and who was not served with process in the class action
meet the due process requirements of the Fifth (and Fourteenth)
Amendments?
3.
Can a class action settlement be applied to bar claims for State law
statutory attorney fee liens that accrue after the filing of the initial
Complaint, in violation of Lucky Brand Dungarees, Inc. v. Marcel Fashions
Group, Inc., 206 L.Ed. 2d 893 (May 14, 2020)?
4.
Can an injunction be enforced against one not named in the injunction
order, and who is not within the defined boundaries of FRCP 65(d)(2)?
5.
Can a federal district court use an earlier injunction order to later
impose an injunction on a non-party’s State court litigation when the four
corners of the earlier injunction order did not encompass the later State court
litigation?
6.
Can the “impermissible collateral attack doctrine” be used to affect
claim preclusion against one not named as a party in a class action suit, who
is not a member of the class, and who was not served with process?
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7.
Can a State court be enjoined by a federal district court from litigating
a claim without the district court articulating the basis of the injunction
under one of the specific exceptions to the Anti-Injunction Act, 28 U.S.C. §
2283?
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iii
LIST OF ALL PARTIES TO THE PROCEEDING IN THE COURT WHOSE
JUDGMENT IS SOUGHT TO BE REVIEWED
In the United States Court of Appeals for the Ninth Circuit, Case No. 1916074, In Re: Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products
Liability Litigation, there is one named Plaintiff and one named Defendant.
The Plaintiff is:
JAMES BEN FEINMAN
The Defendant is:
VOLKSWAGEN GROUP OF AMERICA, INC.
RELATED CASES
James Ben Feinman v. Volkswagen Group of America, Inc., No.: CL-2018-2712,
Circuit Court for the City of Roanoke. Case removed to Western District of Virginia
for the Fourth Circuit on January 28, 2019.
In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prods. Liab. Litig., 3:15md-02672-CRB (N. D. Cal., May 6, 2019).
In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prods. Liab. Litig., No.
2672 CRB (JSC); 3:15-md-02672-CRB (N.D. Cal. May 10, 2019)
Partl v. Volkswagen, AG (In re Volkswagen "Clean Diesel" Mktg., Sales Practices, &
Prods. Liab. Litig), No. 16-17157 (9th Cir. July 9, 2018).
Hill v. Volkswagen Grp. Of Am. Inc. (In re Volkswagen “Clean Diesel” Mktg., Sales
Practices, & Prods. Litig.), No. 17-16020 (9th Cir. Jan. 22, 2019).
Feinman v. Volkswagen Grp. of Am., Inc. (In re Volkswagen "Clean Diesel" Mktg.,
Sales Practices, & Prods. Liab. Litig.), No. 19-16074 (9th Cir. Aug 17, 2020).
Feinman v. Volkswagen Grp. of Am., Inc. (In re Volkswagen "Clean Diesel" Mktg.,
Sales Practices, & Prods. Liab. Litig.), No. 19-16074 (9th Cir. Sep. 24, 2020)
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iv
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................................................................... I
LIST OF ALL PARTIES TO THE PROCEEDING IN THE COURT WHOSE
JUDGMENT IS SOUGHT TO BE REVIEWED ................................................... III
RELATED CASES .................................................................................................... III
TABLE OF CONTENTS ........................................................................................... IV
APPENDIX TABLE OF CONTENTS ...................................................................... V
TABLE OF AUTHORITIES ..................................................................................... VI
OPINIONS BELOW .................................................................................................... 1
JURISDICTIONAL STATEMENT ........................................................................... 1
STATEMENT OF INVOLVED CONSTITUTIONAL PROVISIONS AND
STATUTES ................................................................................................................... 2
STATEMENT OF THE CASE .................................................................................... 3
REASONS FOR GRANTING THE PETITION FOR WRIT OF CERTIORARI
...................................................................................................................................... 26
I. Due Process of Law; Questions Presented 1 through 5 ............................ 26
II. The “Impermissible Collateral Attack” Doctrine and the AntiInjunction Act; Questions Presented 6 and 7 ................................................. 29
CONCLUSION ........................................................................................................... 32
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APPENDIX TABLE OF CONTENTS
Appendix A - Feinman v. Volkswagen Group of America, Inc., Case No. 19-16074
(9th Cir. 2020), Memorandum Opinion Filed 08/17/2020.
Appendix B - Order Granting Volkswagen’s Motion to Enforce the 2.0-Liter
Settlement Approval Order, Case No. 3:15-md-02672 (N.D.CA), Filed
05/06/19.
Appendix C - Transcript of Proceedings in United States District Court, Northern
District of California, before The Honorable Charles R. Breyer, Judge,
Date of Proceedings: April 23, 2019; Case No. 3:15-md-02672 (N.D.CA),
Filed 04/24/19.
Appendix D - In Re Volkswagen “Clean Diesel” Marketing, Sales Practices, and
Products Liability Litigation, 914 F.3d 623 (9th Cir. 2019)
(“Volkswagen II”)
Appendix E - In Re Volkswagen “Clean Diesel” Marketing, Sales Practices, and
Products Liability Litigation, 895 F.3d 597 (9th Cir. 2018)
(“Volkswagen I”)
Appendix F - Order Denying Non-Class Counsel’s Motions for Attorneys’ Fees, Case
No. 3:15-md-02672 (N.D.CA), Filed 04/24/17.
Appendix G - Order Granting Final Approval of the 2.0-Liter TDI Consumer and
Reseller Dealership Class Action Settlement, Case No. 3:15-md-02672
(N.D.CA), Filed 10/25/16.
Appendix H - Feinman v. Volkswagen Group of America, Inc., Case No. 19-16074
(9th Cir. 2020), Order Denying the Petition for Panel Rehearing and to
Deny the Petition for Rehearing en Banc, Filed 09/24/20.
Appendix I - United States Constitution, Amendment V; Virginia Code § 54.1-3932.
Appendix J - Objection Of Class Member John Labudde And Jing Labudde To Class
Action Settlement; Case No. 3:15-md-02672; Docket Number 1887.
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vi
TABLE OF AUTHORITIES
Cases
Atlantic Coast R.R. Co. v. Brotherhood of Engineers, 318 U.S. 281 (1976) ............. 21
Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281
(1970) .................................................................................................................... 5, 32
Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988) ......................................... 21, 26
Clapp v. Comm., 875 F.2d 1396 (9th Cir. 1989) ......................................................... 22
Claytor v. Volkswagen Group of America, Inc., 189 F. Supp. 3d 602
(W.D.Va. 2016) ...................................................................................................... 8, 15
Cook v. Food & Drug Adm., 733 F 3d 1 (D.C. Cir. 2013)............................................ 29
Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241 (1939) ................ 12, 22
Feinman v. Volkswagen Grp. of Am., Inc. (In re Volkswagen "Clean Diesel" Mktg.,
Sales Practices, & Prods. Liab. Litig.), 817 Fed. Appx. 447
(9th Cir. 2020) ............................................................................................ iii, 1, 20, 22
Feinman v. Volkswagen Grp. of Am., Inc. (In re Volkswagen "Clean Diesel" Mktg.,
Sales Practices, & Prods. Liab. Litig.), No. 19-16074, 2020 U.S. App. LEXIS 30566
(9th Cir. Sep. 24, 2020) .............................................................................................. iii
Gulf Trading & Transp. Co. v. M V Jento, 694 F.2d 1191 (9th Cir. 1982) ................ 22
Hansberry v. Lee, 311 U.S. 32 (1940) ..................................................................... 4, 19
Hill v. Volkswagen Grp. Of Am. Inc. (In re Volkswagen “Clean Diesel” Mktg., Sales
Practices, & Prods. Litig.), 914 F.3d 623 (9th Cir., 2019)
("Volkswagen II”) ........................................................................................... iii, 17, 23
Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75 (9th Cir.1987) ............... 25
In Re Schimmels, 127 F.3d 875 (9th Cir. 1997) .................................................... 22, 30
In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prods. Liab. Litig.,
2019 U.S. Dist. LEXIS 76353 (N. D. Cal., May 6, 2019) .................................... iii, 20
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In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prods. Liab. Litig., No.
2672 CRB (JSC), 2019 U.S. Dist. LEXIS 79679 (N.D. Cal. May 10, 2019) ............. iii
In Re Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability
Litigation,” 894 F.3d 1030 (2018) ............................................................................ 11
In re: United States Fin. Sec. Litig., 729 F.2d 628 (9th Cir. 1984)............................ 25
In Re: Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products
Liability Litigation, 895 F. 3d 597 (9th Cir. 2018) .................................................... 5
James Ben Feinman v. Volkswagen Group of America, Inc., No.: CL-2018-2712 ..... iii
Jeff D. v. Andrus, 899 F.2d 753 (9th Cir. 1989). ......................................................... 25
Keith v. Volpe, 784 F.2d 1457 (9th Cir.1986) ............................................................. 25
Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 626 F.2d 95 (9th
Cir.1980) ................................................................................................................... 25
Lexecon, Inc. v. Milberg Weiss, 523 U.S. 26 (1998) .................................................... 15
Lindheimer v. Illinois Bell Tel. Co., 292 U.S. 151 (1934) ........................................... 12
Local No. 93, Int’l Assoc. of Firefighters v. Cleveland, 478 U.S. 501 (1986) ......... 4, 23
Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc., 140 S.Ct. 1589
(2020) .................................................................................................................. 24, 28
Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc., 206 L.Ed. 2d 893
(May 14, 2020) ....................................................................................................... i, 24
Martin v. Wilks, 490 U.S. 755 (1989) .................................................................. passim
Massachusetts Delivery Ass’n v. Coakley, 671 F.3d 33 (1st Cir. 2012) ..................... 29
Montavon v. U. S., 864 F. Supp. 519 (E.D.Va. 1994) ................................................. 25
National Super Spuds, Inc. v. N.Y. Mercantile Exchange, 660 F.2d 9
(2d Cir. 1981) ............................................................................................................ 21
Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612
(6th Cir. 2016) ........................................................................................................... 29
Old Wayne Mutual L. Ass’n v. McDonough, 204 U.S. 8 (1907) ................................... 4
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viii
Pace v. Timmermann’s Ranch and Saddle Shop, Inc., 795 F.3d 748 (7th Cir. 2015) 29
Partl v. Volkswagen, AG (In re Volkswagen "Clean Diesel" Mktg., Sales Practices, &
Prods. Liab. Litig), 895 F.3d 597 (9th Cir. 2018) (“Volkswagen I”) ......................... iii
Pennoyer v. Neff, 95 U.S. 714 (1877) ............................................................................ 4
Postal Telegraph Cable Co. v. Newport, 247 U.S. 464 (1918) ...................................... 4
Public Serv. Comm’r v. Brasher Freight Lines, Inc., 306 U.S. 204 (1939) ................ 22
Taylor v. Sturgell, 553 U.S. 880 (2008) ....................................................................... 27
U.S. v. Brennan, 650 F.3d 65 (2d Cir. 2011) ............................................................... 29
U.S. v. Good Samaritan Church, 29 F.3d 487 (9th Cir. 1994) ................................... 12
U.S. v. ITT Continental Baking Co., 420 U.S. 223 (1975).......................................... 30
United States v. Armour, 402 U.S. 673 (1971) ........................................................... 25
Vertex Distr. Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885 (9th Cir.1982).......... 25
Wilkins v. Peninsula Motor Cars, Inc., 266 Va. 558 (2003) ....................................... 27
Younger v. Harris, 401 U.S. 37 (1971) .......................................................................... 5
Zenith Radio Corp. v. Hazeltine Research Inc, 395 U.S. 100 (1969) ................... 23, 24
Statutes
28 U.S.C. § 2283 ......................................................................................................... ii, 2
28 U.S.C. § 1254 ............................................................................................................. 1
Va. Code §8.01-267.1 ..................................................................................................... 8
Va. Code §54.1-3932 ............................................................................................ passim
Constitutional Provisions
United States Constitution, Amendment V.................................................................. 2
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ix
Rules
Fed. R. Civ. P 65 …………………………………………………………………..i, 13, 24, 31
Supreme Court Rule 10……………………………………………………………………….3
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1
IN THE
SUPREME COURT OF THE UNITED STATES
_________________________________
PETITION FOR A WRIT OF CERTIORARI
_________________________________
Petitioner, James Ben Feinman (“Feinman” or “Mr. Feinman”), by counsel,
respectfully prays that a writ of certiorari issue to review the judgements below:
OPINIONS BELOW
The decision by the Ninth Circuit Court of Appeals denying James B.
Feinman’s direct repeal is reported as In re Volkswagen “Clean Diesel” Marketing,
Sales Practices, and Products Liability Litigation, 817 Fed. Appx. 447 (9th Cir.
2020). That opinion is attached as Appendix A. The Ninth Circuit denied Mr.
Feinman’s petition for rehearing on September 24 ,2020. That order is attached as
Appendix H. The May 6, 2019, United States District Court for the Northern
District of California’s Order Granting Volkswagen’s Motion to Enforce the 2.0-Liter
Settlement Approval Order has been provided as Appendix B.
JURISDICTIONAL STATEMENT
The Court possesses appellate jurisdiction over this case pursuant to 28
U.S.C.S. § 1254(1). The Ninth Circuit issued its decision on August 20, 2020 and
denied Feinman’s Combined Petition for Rehearing on September 24, 2020.
Pursuant to this Court’s pandemic-related Order of March 19, 2020, Feinman files
this petition on February 22, 2021.
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2
STATEMENT OF INVOLVED CONSTITUTIONAL PROVISIONS AND
STATUTES
Constitutional Provisions Involved:
United States Constitution, Amendment V:
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 in time of
War or public danger; nor shall any person be subject for
the same offence 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.
Federal Statutes Involved:
28 U.S.C. § 2283:
A court of the United States may not grant an injunction to
stay proceedings in a State court except as expressly
authorized by Act of Congress, or where necessary in aid of
its jurisdiction, or to protect or effectuate its judgments.
Virginia Statute Involved:
Virginia Code §54.1-3932:
A. Any person having or claiming a right of action sounding
in tort, or for liquidated or unliquidated damages on
contract or for a cause of action for annulment or divorce,
may contract with any attorney to prosecute the same, and
the attorney shall have a lien upon the cause of action as
security for his fees for any services rendered in relation to
the cause of action or claim. When any such contract is
made, and written notice of the claim of such lien is given
to the opposite party, his attorney or agent, any settlement
or adjustment of the cause of action shall be void against
the lien so created, except as proof of liability on such cause
of action. Nothing in this section shall affect the existing
law in respect to champertous contracts. In causes of action
for annulment or divorce an attorney may not exercise his
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claim until the divorce judgment is final and all residual
disputes regarding marital property are concluded.
Nothing in this section shall affect the existing law in
respect to exemptions from creditor process under federal
or state law.
B. Notwithstanding the provisions in subsection A, a court
in a case of annulment or divorce may, in its discretion,
exclude spousal support and child support from the scope
of the attorney's lien.
STATEMENT OF THE CASE
In the thousands of class actions certified and settled in the United States,
our law has not allowed a class action settlement to release the valuable, vested
property rights of one who is not a party, is not a class member, and who was not
served with process in that litigation. Yet in this case, the United States Court of
Appeals for the Ninth Circuit (“Ninth Circuit” or “Court of Appeals”) held that a
class action settlement released the valuable property rights of a non-party and
non-class member who was not served with process. That holding is such a
departure from this Court’s precedent on universally accepted principles of due
process of law that it calls for the exercise of the Court’s supervisory power.
Supreme Court Rule 10.
The United States District Court for the Northern District of California
(“district court”), as affirmed by the Ninth Circuit, impermissibly crossed two
boundaries by holding that: (1) a class action released valuable statutory property
rights belonging to one who is neither a party to the case, nor a member of the class,
nor served with process in that case; and (2) a federal court may interfere with and
enjoin proceedings in a State court in violation of long-standing Federalism
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principles. The district court ignored the most fundamental principles of due process
of law:
(a) “one is not bound by a judgment in personam in a litigation in
which he is not designated as a party or to which he has not
been made a party by service of process.” Hansberry v. Lee,
311 U.S. 32, 40 (1940), (citing Pennoyer v. Neff, 95 U.S. 714
(1877));
(b) “[J]udicial action enforcing [a judgment rendered in such
circumstances] against the person or property of the absent
party is not that due process which the Fifth and Fourteenth
Amendments require.” Hansberry at p. 41, (citing Postal
Telegraph Cable Co. v. Newport, 247 U.S. 464 (1918), Old
Wayne Mutual L. Ass’n v. McDonough, 204 U.S. 8, (1907)
[clarification added]; and
(c) “[A] judgment or decree among parties to a lawsuit resolves
issues as among them, but it does not conclude the rights of
strangers to those proceedings.” Martin v. Wilks, 490 U.S. 755,
761-762 (1989).1
The Court has articulated controlling due process principles in a number of
past decisions, such as in the following:
Of course, parties who choose to resolve litigation through
settlement may not dispose of the claims of a third party,
and a fortiori, may not impose duties or obligations on a
third party, without that party’s agreement. A court’s
approval of a consent decree between some of the parties
therefore cannot dispose of the valid claim of nonconsenting
[individuals]…and, of course, a Court may not enter a
consent decree that imposes obligations on a party that did
not consent to the decree.
Local No. 93, Int’l Assoc. of Firefighters v. Cleveland, 478 U.S. 501, 529
(1986). [clarification added].
1 In quoting caselaw and other materials, Feinman herein will use both quotation marks and
italicized text. He will use emboldened text to express emphasis.
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Proceedings in state courts should normally be allowed to
continue unimpaired by intervention of the lower federal
courts, with relief from error, if any, through the state
appellate courts and ultimately this Court.
Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Engineers,
398 U.S. 281, 287 (1970);
[O]ur cases…repeat time and time again that the normal
thing to do when federal courts are asked to enjoin pending
proceedings in state courts is not to issue such injunctions.
Younger v. Harris, 401 U.S. 37, 45 (1971).
The underlying facts and procedural history of this case are not in dispute, as
described by the Ninth Circuit:
In September 2015, Volkswagen (or VW) admitted that it
installed ‘defeat devices’ in certain of its 2009-2015 model
year 2.0-liter diesel cars. These devices – bits of software in
the cars – were at the center of a massive scheme by VW to
cheat on U.S. emissions tests. The clever software could
detect that a car was undergoing government-mandated
testing and activate emissions-control mechanisms. Those
mechanisms ensured that car emitted permissible levels of
atmospheric pollutants when the test was in progress.
During normal road use, however, the emission-control
system was dialed down considerably. As a result, the
affected cars usually emitted on the road between 10 and 40
times the permissible level of nitrogen oxide, a gas that
reacts with other gases to create ozone and smog. This was
no small-time con: over 475,000 vehicles in the United
States alone contained a defeat device.
See, In Re: Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products
Liability Litigation, 895 F. 3d 597, 603 (9th Circuit 2018).
Mr. Feinman is a practicing attorney in Lynchburg, Virginia. Part of his
practice consists of representing consumers across Virginia against motor vehicle
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manufacturers pursuing remedies under the Virginia Motor Vehicle Warranty
Enforcement Act, and the Virginia Consumer Protection Act. Feinman:
undertook the representation of approximately 674 Virginia
citizens who were victims of [Volkswagen’s] fraudulent
scheme. In each and every individual representation,
attorney Feinman perfected his lien for attorney fees
pursuant to Va. Code 54.1-3932 by giving individual
written notice pertaining to each individual client of
the lien for attorney fees to Volkswagen Group of
America, Inc.’s legal counsel.
The legal services
rendered included representation before the Supreme Court
of Virginia pursuant to the Virginia Multiple Claimant
Litigation Act, before a special three-Judge panel appointed
by the Supreme Court of Virginia, before the Circuit Court
of Fairfax County [Virginia] where all ‘Clean Diesel’ cases
filed in Virginia were transferred for coordinated hearings,
in the United States District Court for the Western District
of Virginia, in the United States District Court for the
Northern District of California, San Francisco Division,
and in the United States Court of Appeals for the Ninth
Circuit. Additionally, multiple suits were filed on behalf of
these clients in Circuit Courts throughout Virginia.” (ER
163)2. (Emphasis added (to demonstrate that Feinman
perfected the attorney’s fee lien for each client’s case before
the district court approved the relevant class action
settlement)).
While Feinman represented individual Virginia clients and pursued
individual claims (not class claims) under Virginia law against Volkswagen Group
of America, Inc. (“VW”), (whose corporation’s principal place of business is in
Fairfax County, Virginia), a multidistrict litigation styled “In Re: Volkswagen ‘Clean
Diesel’ Marketing, Sales Practices, and Products Liability Litigation” was formed on
2 Citations to the Excerpts of Records and the page number thereof are shown as (ER __). Citations
to Supplemental Excerpt of Records are shown as (SER __). Citations to the Appendix are shown as
(APP_).
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December 8, 2015, to be litigated in the district court, the Honorable Charles R.
Breyer, Senior District Court Judge presiding, D.C. No. 3:15-md-02672-CRB (“MDL
2672”).
On January 21, 2016, the District Court entered PTO #7, appointing a
Plaintiffs’ Steering Committee (“PSC”) of 22 attorneys asserting 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, [that] pretrial proceedings shall [be]
conducted by and through the PSC.” DKT #1084. Significantly, the district court
acknowledged the “independent fiduciary obligations” of non-class counsel. Id. On
February 22, 2016, the original Consolidated Consumer Class Action Complaint
was filed by the PSC. DKT #1230.
On February 25, 2016, the district court entered PTO No. 11, outlining the
protocol for recovery of attorney’s fees for “Common Benefit Work”. (3:15-md-02672;
DKT #1254). Recovery of such fees would be limited to the PSC and “any other
counsel authorized” by the PSC “to perform work that may be considered for common
benefit attorneys’ fees and costs”. Id. The district court recognized that all other
counsel are performing work “for their own benefit and that of their respective
clients” and such work “will not be considered Common Benefit Work.” Id.
While the PSC engaged in the work they deemed necessary, Mr. Feinman
fully exercised his “independent fiduciary obligations” to his clients in Virginia.
Hundreds of Virginians asked Feinman to represent them and he engaged in
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considerable work consisting of gathering information on each individual client’s
vehicle, including the Vehicle Identification Number (VIN), the purchase date, the
place of purchase, the purchase amount, the vehicle’s current mileage, the extent of
and cost of any aftermarket parts or accessories installed, and the vehicle’s current
condition. Many lawsuits were drafted, filed, and served. Feinman filed briefing in
the Supreme Court of Virginia, and appeared before a three-judge panel appointed
by the Supreme Court of Virginia for the purpose of forming and conducting a
coordinated proceeding under the Virginia Multiple Claimant Litigation Act, Va.
Code §8.01-267.1. (ER 350-354).
On April 26, 2016, VW attempted to remove to federal court the cases filed by
Mr. Feinman in Virginia Circuit (i.e., trial) Courts. Feinman litigated the propriety
of that attempted removal culminating in a decision by the U.S. District Court for
the Western District of Virginia, holding that there was no federal question or
diversity jurisdiction to allow federal court jurisdiction over the claims of Virginia
citizens asserting Virginia law claims against VW. See, Claytor v. Volkswagen
Group of America, Inc., 189 F. Supp. 3d 602 (W.D.Va. 2016). The ruling established
that the many hundreds of cases filed in Virginia courts could not be removed to
federal court and then transferred to the district court. It thus permitted a separate
litigation in which individual claimant’s cases were coordinated by one Virginia
court for discovery, pre-trial motions, and eventually sent back to the Virginia
Circuit Court of original filing for trial. (ER 351).
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Each time a new client engaged Mr. Feinman to litigate respecting an illegal
VW diesel engine, he sent VW’s counsel of record in Virginia a letter establishing
his lien for attorney fees and costs pursuant to Virginia Code §54.1-3932. (See,
Appendix I, pg. 2).
On July 26, 2016, the PSC and VW defendants filed an 111-page “Consumer
Class Action Settlement Agreement and Release (Amended).” (“Settlement
Agreement”) (ER 1924-2034) The district court preliminarily approved the proposed
settlement on that same date. (ER 1892-1923)3. The Settlement Agreement
established September 16, 2016, as the date that a member of the proposed class
could opt-out of the settlement and pursue their individual claims. A member of the
proposed class who failed to opt-out by that date was enjoined from individually
litigating against VW.
The Settlement Class was defined as:
[A]ll persons (including individuals and entities) who, on
September 18, 2015, were registered owners or lessees of, or,
in the case of Non-Volkswagen Dealers, held title to or held
by bill of sale dated on or before September 18, 2015, a
Volkswagen or Audi 2.0-liter TDI vehicle in the United
States or its territories (an “Eligible Vehicle”), or who,
between September 18, 2015, and the end of the Claim
Period, become a registered owner of, or, in the case of NonVolkswagen Dealers, hold title to or hold by bill of sale
dated after September 18, 2015, but before the end of the
Claims Period, an Eligible Vehicle in the United States or
its territories. (ER 760)
3 An earlier version of the Consumer Class Action Settlement Agreement and Release was filed June
28, 2016.
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10
At no time was Mr. Feinman a registered owner or lessee of any Eligible
Vehicle or any Volkswagen or Audi car; he thus was not a Class member. As of the
opt-out date, Feinman represented 674 Class members. After Feinman counseled
his clients about the proposed settlement’s benefits in comparison to the potential
benefits of pursuing their individual claims, 403 of Feinman’s clients chose in favor
of Class membership and 271 chose to opt-out of it and pursue individual claims.
After the opt-out date, Feinman dismissed all pending lawsuits for the 403 former
clients who chose to remain in the Class. At that point, per the district court’s
orders, the PSC became the exclusive counsel for those remaining in the Class, and
Feinman was discharged as counsel for the 403 now-former clients. See, 3:15-md02672, DKT #1084.
The Settlement Agreement contained a provision whereby all Class Members
released:
[A]ny and all claims, demands, actions, or causes of action
of any kind or nature whatsoever, whether in law or in
equity, known or unknown, direct, indirect or
consequential, liquidated or unliquidated, past, present or
future, foreseen or unforeseen, developed or undeveloped,
contingent or noncontingent, suspected or unsuspected,
whether or not concealed or hidden, arising from or in any
way related to the 2.0-liter TDI Matter, including without
limitation (1) any claims that were or could have been
asserted in the Action; and (2) any claims for fines,
penalties, criminal assessments, economic damages,
punitive damages, exemplary damages, liens, injunctive
relief, attorneys’, expert, consultant, or other litigation fees
or costs other than fees and costs awarded by the Court in
connection with this Settlement, or any other liabilities,
that were or could have been asserted in any civil, criminal,
administrative, or other proceeding, including arbitration.”
(ER 763)
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11
The district court held a hearing on October 18, 2016, to consider approval of
the Class Action Settlement. At that time, Feinman still represented one Class
member vis-à-vis the Settlement Agreement, Ronald Clark Fleshman, in an effort to
intervene in the United States’ suit to enforce the Clean Air Act. See, In Re
Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability
Litigation, 894 F.3d 1030 (2018) (App. E). Mr. Feinman appeared at the October 18,
2016, hearing for Mr. Fleshman to object to the proposed settlement because it
allowed continued unlawful use of Volkswagen diesel vehicles. Id. at 1036-1037.
Other Class member objectors opposed the Settlement Agreement’s approval
because it did not address payment of attorneys other than the PSC and their
designees. See, e.g., “Objection of Class Members John Labudde and Jing Labudde
to Class Action Settlement.” (App. J) ( “Labudde Objection”). The Labudde Objection
cited law applicable to attorney’s fee liens and asserted to the district court that the
proposed settlement was “inequitable because it fails to deal with liens created by
agreement or operation of law.” (App J, p. 11 of 12).
On October 25, 2016, the district court issued its “Order Granting Final
Approval of the 2.0-Liter TDI Consumer and Reseller Dealership Class Action
Settlement” (“Settlement Approval Order”). (ER 756-803). It expressly ruled on
objections based on the proposed agreement’s failure to address payment to nonclass counsel. The district court’s ruling agreed with the factual premise of the
Labudde Objection and those of other similarly objecting Class members. It held:
{2821 / 017}
12
Some objectors argue the Settlement is unfair because it
does not compensate Class Members for fees for their private
attorneys, in other words, those attorneys not appointed to
the PSC. The Settlement is silent as to Volkswagen’s
obligations to pay the fees and costs for attorneys
other than Class Counsel or attorneys Class Counsel
designated to perform work in connection with this
litigation. However, the Settlement is not unfair simply
because it does not require Volkswagen to pay the private
attorneys’ fees of those Class Members who chose to retain
an attorney. (Emphasis added) (App. G, p. 39 of 48); and
see, (DKT #168).
VW did not appeal this ruling respecting the Settlement Agreement’s silence
regarding payment of non-class counsel. Mr. Feinman did not appeal the ruling, as
he was not a Class member or a party to the litigation, and further, the district
court did not rule adversely to the enforcement of his Virginia statutory attorney’s
fee liens. To the contrary, the Settlement Agreement was “silent” on the subject of
non-class counsel’s fee payment and the enforcement against VW of any perfected
liens regarding such payment. (ER 213) The Class Action Settlement thus did not
affect Feinman’s vested rights under his liens as non-class counsel, and the
Settlement Approval Order left him free to enforce them. Cf., Electrical Fittings
Corporation v. Thomas & Betts Co., 307 U.S. 241 (1939). (“A party may not appeal
from a judgement or decree in his favor,” citing Lindheimer v. Illinois Bell Tel. Co.,
292 U.S. 151 (1934)). See also, U.S. v. Good Samaritan Church, 29 F.3d 487, 488
(9th Cir. 1994).
The district court’s October 25, 2016 “Order Granting Final Approval of the
2.0-Liter TDI Consumer and Reseller Dealership Class Action Settlement” enjoined
Class Members who had not opted out from participating in any State court
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13
litigation: “Accordingly, the Court enjoins Class Members who have not opted
out from participating in any state court litigation relating to the Released Claims.
This injunction, however, does not prevent Class Members from dismissing or
staying his or her Released Claims.” (ER 801); (emphasis added).
The district court’s final order approving the Class Settlement further
enjoined Class members, as follows:
VI. CONCLUSION
For the foregoing reasons, the Court ORDERS the
following:
9. Class Members who have not properly opted out and any
person purportedly acting on behalf of any Class Member(s)
are ENJOINED from commencing, filing, initiating,
instituting,
pursuing,
maintaining,
enforcing
or
prosecuting, either directly or indirectly, any Released
Claims in any judicial, administrative, regulatory, arbitral
or other proceeding, in any jurisdiction or forum, against
any of the Released Parties. Nothing herein shall prevent
any Class Member, or any person actually or purportedly
acting on behalf of any Class Member(s), from taking any
actions to dismiss his, her or its Released Claims. (ER 801802)
Significantly, as of the September 16, 2016, opt-out date, the PSC became the
exclusive counsel to Mr. Feinman’s former clients. In his later efforts to enforce his
attorney’s fee liens against VW, Feinman was not “purportedly acting on behalf of
any Class member(s).”4
4 FRCP 65(d)(2) provides that injunctions only bind “(A) the parties; (B) the parties’ officers, agents,
servants, employees, and attorneys, and (C) other persons who are in active concert or participation”
with anyone described in (A) or (B). When the injunction was entered on October 25, 2016, Mr.
Feinman was no longer the attorney for his former clients, nor in active concert or participation with
them.
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14
The issue of attorneys’ fee liens soon arose. On November 22, 2016, the
district court entered an “ORDER RE: ATTORNEYS’ LIENS.” (ER 750) It sua
sponte ruled that VW had informed it “that certain attorneys have placed liens on
several Class Members’ settlement proceeds.” (ER 750-755) The district court found
that “attorneys’ liens on Class Members’ recovery frustrates” the purpose of the
settlement. “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 these funds.” (ER 753).
The district court held further:
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.
(ER 754)
The district court established a procedure for attorneys to apply for
compensation for performing services that benefited the Class and required that
applications be submitted by November 29, 2016. (ER 750)
Mr. Feinman sought additional time to file his application and, with the
district court’s leave, on January 6, 2017, filed “James B. Feinman’s Objection to
Adjudication of Issue of Attorney Fee Lien for Lack of Jurisdiction; Motion to Lift
Injunction; and, In The Alternative, Application for Attorney’s Fees in Regard to
Representation of [403 named former clients].” (ER 473-500); [clarification added].
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15
Mr. Feinman maintained the district court lacked jurisdiction to adjudicate
the statutory attorney fee lien claims of a Virginia lawyer representing that state’s
citizens and asserting perfected statutory lien and common law claims against VW,
with its principal place of business in Virginia. Feinman contended the All Writs
Act does not confer jurisdiction where subject matter jurisdiction did not exist.
With the finding that there was no federal question jurisdiction established in
Claytor v. Volkswagen, 189 F. Supp 3d 602 (W.D.Va. 2016), and no diversity,
Feinman challenged the district court’s jurisdiction to enjoin him from pursuing his
claims in State court. (ER 478-480)
Mr. Feinman also asserted no injunction was appropriate because his
attorney fee lien claim would not reduce the Class members’ recovery. He moved
the district court to remand adjudication of his attorney’s fee lien claim pursuant to
Lexecon, Inc. v. Milberg Weiss, 523 U.S. 26 (1998) as this was not a “pretrial
proceeding”. (ER 473-487) Finally, in the alternative, Feinman sought recovery for
his time and expense in representing 403 former clients. Id. He asserted that he
never performed any “Common Benefit Work” and had not sought payment under
the class action settlement, which was “silent” as to non-class counsel. Id.
On April 24, 2017, the district court entered its “Order Denying Non-Class
Counsel’s Motions for Attorneys’ Fees.” (ER 411-420). The district court ruled that
none of the non-class counsel seeking fees performed any “Common Benefit Work.”
Id. Indeed, Mr. Feinman never asserted that he did so. The district court therefore
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16
declined to award attorney’s fees to non-class counsel. Id. However, the district
court did lift its injunction:
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 #2428 at 2.) (ER 418); (emphasis
added).
After the district court lifted the injunction, Mr. Feinman informed VW
counsel that he would enforce his statutory attorney’s fee lien in Virginia’s State
courts. VW counsel denied that the injunction had been lifted and threatened legal
action. Out of an abundance of caution, Feinman appealed the April 24, 2017,
“Order Denying Non-Class Counsel’s Motions for Attorneys’ Fees.”
The briefing, oral argument, and ruling of the Ninth Circuit regarding the
appeal of the April 24, 2017, Order demonstrate that Mr. Feinman did not appeal
the district court’s denial of attorney fees, but sought confirmation that the Order
did not enjoin him from pursuing enforcement of his attorney’s fee liens in a
Virginia court. (ER 389) (“Appellant Mr. Feinman moves this Honorable Court to
hold that the District Court’s injunction does not prohibit Mr. Feinman from
pursuing his attorney fee lien claim against Volkswagen in Virginia State courts”).
VW conceded in its Ninth Circuit oral argument that the Order did not so enjoin
{2821 / 017}
17
Feinman. (ER 138). Upon receiving VW’s concession, the Panel acknowledged it to
Feinman:
Judge Smith: It looks like you can be a happy man today,
because apparently there is no lien that stops you from
doing what you want to do.
Mr. Feinman: Well, I don’t know what - - pardon me, I
don’t understand when you say no lien - - no injunction?
Judge Smith: No injunction. I apologize. No injunction
stopping you - Mr. Feinman: Very happy man.
Judge Smith: We like people to be happy.
Mr. Feinman: Thank you, sir. (ER 138).
The Ninth Circuit’s subsequent published opinion made it clear that it did
not decide whether Feinman had a valid lien claim against VW. See, 914 F.3d 623,
647 (2019):
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. (Emphasis added).
On December 28, 2018, Mr. Feinman filed a Complaint in the Circuit Court of
the City of Roanoke, Virginia. (ER 162-165). He sought to enforce his statutory lien
claims pursuant Virginia Code §54.1-3932. (ER 162-168). VW removed the case to
the Western District of Virginia, and then to the district court, where it filed
“Volkswagen Group of America, Inc.’s Motion to Enforce 2.0-Liter Settlement
Approval Order Enjoining Prohibited State Court Lawsuit Filed by Non-Class
Counsel.” (ER 333-345)
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18
VW asserted “pursuant to the injunction in Paragraph 9 of the Court’s 2.0L
Settlement Approval Order, the Court should enjoin non-class counsel, James B.
Feinman, from pursuing a state court action for attorney’s fees from VWGOA for his
individual representation of his Class-member clients who accepted the 2.0L class
action settlement.” (ER 336) Volkswagen asserted “the Court’s 2.0L Settlement
Approval Order permanently enjoined “Class members who have not properly opted
out and any person purportedly acting on behalf of any Class Member(s)… from
commenting, filing, initiating, instituting, pursuing, mentioning, enforcing, or
prosecuting, either directly or indirectly, any Released Claims.” (ER 336)
VW argued that Virginia Code §54.1-3932 could not “void” the Class Action
Settlement under the Supremacy Clause. (ER 344) In spite of the plain language
of Va. Code § 54.1-3932 stating “the attorney shall have a lien upon the cause of
action,” and numerous Virginia cases stating otherwise, VW incorrectly argued that
Virginia law would empower Feinman only to collect his fees from his former
clients. (ER 344)
Mr. Feinman opposed Volkswagen’s effort to enjoin his State court litigation.
(ER 286-330). He asserted that established law throughout the United States holds
an attorney’s lien is not defeated by settlement between a plaintiff and a defendant.
(ER 304-309; 325-327). He pointed out to the district court that its prior order
approving the Class settlement had expressly stated its contemporaneous
conclusion that:
The Settlement is silent as to Volkswagen’s obligations to
pay the fees and costs for attorneys other than Class
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19
Counsel or attorneys Class Counsel designated to perform
work in connection with this litigation. (ER 314)
Mr. Feinman asserted that Class Representatives can release only claims
possessed in common with the Class. (ER 315) He stressed that he was not a
member of the Class, had no opportunity to opt out of the class of which he was not
a member, and the Class Representatives and Class members possessed no
authority respecting his statutory lien, and therefore the Class Settlement and
Release had no preclusive effect on him. (ER 315-318) Feinman presented the
district court with precedent establishing that class settlements purporting to
resolve issues beyond the alleged misconduct in the underlying action violate due
process. (ER 317-320). Finally, he cited to Hansberry v. Lee, 311 U.S. 32 (1940),
providing that “the petitioners there were not bound by a prior judgment in an
earlier litigation to which they were not parties as to do so would violate due
process.” (ER 76-78)
On April 23, 2019, Mr. Feinman orally argued these matters in person to the
district court. (ER 14-69) On May 6, 2019, the district court issued an order
enjoining Mr. Feinman and the Virginia litigation:
“A substantial number of consumers who had retained their
own lawyers left those lawyers (and the cases they had filed)
and accepted the class settlements. The consumers who
accepted the settlements released “on behalf of themselves
and their . . . attorneys, . . . . any claims for . . . liens . . . [or]
attorneys’ . . . fees or costs other than fees and costs awarded
by the Court in connection with this Settlement.” (2.0-Liter
Settlement; ¶ 9.3, DKT #685) (ER 2) (App. B, p. 2)
“The lien claims that Feinman is currently pursuing
against VW in Virginia state court are released claims. In
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20
the 2.0-liter settlement approval order, this Court enjoined
releasing parties “from commencing, filing, initiating,
instituting,
pursuing,
maintaining,
enforcing
or
prosecuting, either directly or indirectly, any Released
Claims . . . in any jurisdiction or forum, against any of the
Released Parties.” (Approval Order at 47 ¶ 9.) Pursuant to
that Order, Feinman is enjoined from pursuing his lien
claims against VW.” (ER 5) See, In re Volkswagen “Clean
Diesel” Mktg., Sales Practices, & Prods, Liab. Litig., 2019
U.S. Dist. LEXIS 76353, **315-16 (N.D. Cal., May 6, 2019).
(App. B, p.5)
The district court additionally held:
[B]ecause Feinman had notice of 2.0-Liter settlement, the
Court construes his opposition to VW’s motion to enforce
the release as a belated attempt to object to the settlement;
a settlement that this Court approved over two years ago
and that the Ninth Circuit agreed was fair and
reasonable…The Court will not consider Feinman’s late
objection.” (ER 3-4)
It also ruled that the release of the claims of non-class members, and nonparties unserved with process, “was essential to the settlement’s success.” (ER 4) “It
was instrumental to the success of the settlement and, indeed, VW’s counsel has
represented that without it ‘a settlement [would] not have been achieved.’” (Apr. 23,
2019 Hr’g Tr. 46:3-4.) (ER 5)
Mr. Feinman appealed the district court’s injunctive order to the United
States Court of Appeals for the Ninth Circuit. See, Feinman v. Volkswagen Grp. Of
Am., Inc. (In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods. Liab.
Litig.), 817 Fed. Appx. 447 (9th Cir., 2020). In briefing to the Ninth Circuit, Mr.
Feinman again asserted:
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21
(1) that his statutory attorney’s fee lien under Virginia Code § 54.1-3932 was a
vested right and a protected property interest entitled to due process protection
(Case No. 19-16074, DKT #24, at pp. 1-2);
(2) that the “most fundamental principles underlying class actions limit the powers
of the representative parties to the claims they possess in common with other
members of the class.” National Super Spuds, Inc. v. N.Y. Mercantile Exchange,
660 F.2d 9, 16 (2d Cir, 1981 (emphasis added) (Case No. 19-16074, DKT 24 at 3-4);
(3) that he was not a member of the defined class and class representatives
possessed no right or lawful authority to effect claims of non-members of the class
and therefore he was not bound by their agreement (Case No. 19-16074, DKT 6 at
22, 26; DKT #24 at pp. 4-7, 11-12);
(4) that the injunction in the Settlement Approval Order was directed only to Class
Members, as found at ER p. 800, 801, 219, 220, 221 (Case No. 19-16074, DKT 6 at
pp. 22-23; DKT #24 at p. 6);
(5) that Mr. Feinman’s statutory lien claim was his alone, and not one possessed in
common with any member of the Class (Case No. 19-16074, DKT #6 at pp.2-23;
DKT #24 at pp.6);
(6) that the district court’s initial determination that the Settlement Agreement “is
silent as to Volkswagen’s obligation to pay the fees and costs for attorneys other than
Class Counsel” must be obeyed, because a district court cannot “render a post hoc
judgment as to what the order was intended to say” as held in Chick Kam Choo v.
Exxon Corp., 486 U.S. 140, 148, (1988) (citing Atlantic Coast R.R. Co. v.
{2821 / 017}
22
Brotherhood of Engineers, 318 U.S. 281, 290 (1976) (Case No. 19-16074, DKT #6 at
p. 25);
(7) that under Ninth Circuit precedent, a party (which Mr. Feinman was not) “may
not appeal from a judgment or decree in his favor” and the district court’s order held
the Class Settlement was “silent” in regard to payment of non-class counsel fees,
(Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242 (1939); Public
Serv. Comm’r v. Brasher Freight Lines, Inc., 306 U.S. 204, 206-7 (1939) (party may
not appeal favorable decision); Clapp v. Comm., 875 F.2d 1396, 1398 (9th Cir. 1989)
(Case No. 19-16074, DKT #24, at pp. 10-11);
(8) that Mr. Feinman and the Class Members were not in privity because the Class
Representatives did not represent “precisely the same right in respect to the subject
matter involved,” In Re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997) (Case No. 1916074, DKT #24 at pp. 13-14); and
(9) that it is “an obvious truism non-parties cannot be bound by an agreement,” Gulf
Trading & Transp. Co. v. M V Jento, 694 F.2d 1191 (9th Cir. 1982) (Case No. 1916074, DKT #24 at p. 16).
On August 17, 2020, the Ninth Circuit affirmed the district court. Feinman v.
Volkswagen Grp. Of Am., Inc. (In re Volkswagen “Clean Diesel” Mktg., Sales
Practices, & Prods. Liab. Litig.), 817 Fed. Appx. 447 (9th Cir., 2020). The Panel held
that “Feinman’s statutory lien claim under Virginia law was a released claim under
the settlement agreement.” (App A, p. 2) “Feinman’s arguments that he is not a
member of the class and that his clients had no authority to release his statutory
{2821 / 017}
23
claim are nothing more than a belated objection to the settlement.” (App A, pp. 2-3)
The Panel held “Feinman’s argument that the settlement did not release his
statutory lien claim is contrary to our ruling in Volkswagen II and the plain text of
the release provision in the agreement…”5 (App A, p. 2)
Mr. Feinman filed a “Combined Petition for Panel Rehearing and Rehearing
En Banc.” (9th Cir., DKT #36) He asserted that granting preclusive effect to a
judgment in a prior case in which Feinman was not a member of the Class, was not
made a party and was not served with process violates this Court’s precedents in
Martin v. Wilks, 490 U.S. 755, 761-762 (1989); Firefighters, 478 U.S. at 528-529;
and Zenith Radio Corp. v. Hazeltine Research Inc, 395 U.S. 100, 110 (1969).
In his combined petition, Mr. Feinman reiterated the holding of Firefighters,
478 U.S. at 529, that “Of course, parties who choose to resolve litigation through
settlement may not dispose of the claims of a third party, and a fortiori may not
impose duties or obligations on a third party, without that party's agreement...And,
5 Volkswagen II refers to the Ninth Circuit’s decision reported at Hill v. Volkswagen Grp. of Am. Inc.
(In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods. Litig.), 914 F.3d 623 (9th Cir.,
2019). Contrary to this Panel interpretation of Volkswagen II, in relevant part, at p. 647, the
Volkswagen II decision held that:
“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.” (Emphasis added).
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24
of course, a court may not enter a consent decree that imposes obligations on a party
that did not consent to the decree.” Continuing, Feinman argued that “[j]oinder as a
party, rather than knowledge of a lawsuit and an opportunity to intervene, is the
method by which potential parties are subjected to the jurisdiction of the court and
bound by a judgement or decree…The linchpin of the ‘impermissible collateral
attack’ doctrine—the attribution of preclusive effect to a failure to intervene—is
therefore quite inconsistent with [FRCP] Rule 17 and Rule 24.” Martin, 490 U.S. at
765; [clarification added]. As the Court has held “a non-party with notice cannot be
held in contempt until shown to be in active concert or participation [with the parties
defendant, or here, the Class members]. It was error to enter the injunction against
Hazeltine, without having made this determination in a proceeding to which
Hazeltine was a party.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S.
100, 112 (1969) (9th Cir., DKT #36); See also, FRCP 65(d)(2).
Mr. Feinman further argued the recent holding of Lucky Brand Dungarees,
Inc. v. Marcel Fashions Group, Inc., 140 S.Ct. 1589 (2020), reaffirmed precedent to
the effect that the “various claim preclusion” doctrines do “not bar claims that are
predicated on events that postdate the filing of the initial complaint.” Id, at 1596. As
Justice Sotomayor explained, “This is for good reason: Events that occur after the
plaintiff files suit often give rise to new ‘[m]aterial operative facts’ that ‘in
themselves, or taken in conjunction with the antecedent facts’ create a new claim for
relief.” Id, at 1597. The original class action suit against VW was filed on February
22, 2016. The opt-out date - after which date Feinman no longer represented the
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25
403 clients and his attorney fee lien claim became choate - was September 16,
2016.6 Feinman’s attorney fee lien claim could therefore not be the subject of claim
preclusion because it was “predicated on events that postdate the filing of the initial
complaint.” Id., at 1596.
Mr. Feinman argued to the Ninth Circuit the applicable law that any
command of a consent decree or order must be found within its four corners. See,
United States v. Armour, 402 U.S. 673, 682 (1971). And, that the interpretation of
class action settlement agreements are subject to de novo review:
Interpretation of settlement agreements, like interpretation
of contracts, are subject to de novo review. Hunt Wesson
Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th
Cir.1987) (if interpretation of a contract is based on
analysis of language and application of principles of
contract interpretation, review is de novo); In re: United
States Fin. Sec. Litig., 729 F.2d 628, 631–32 (9th Cir.1984)
(interpretation of settlement agreement when restricted to
language of the settlement, like contracts, is subject to de
novo review). A district court’s interpretation of a consent
judgment is a matter of law and freely reviewable on
appeal. Keith v. Volpe, 784 F.2d 1457, 1461 (9th Cir.1986);
Vertex Distr. Inc. v. Falcon Foam Plastics, Inc., 689 F.2d
885, 892 (9th Cir.1982); Kittitas Reclamation Dist. v.
Sunnyside Valley Irrigation Dist., 626 F.2d 95, 98 (9th
Cir.1980), cert. denied, 449 U.S. 1079, 101 S.Ct. 861, 66
L.Ed.2d 802 (1981). 899 F.2d 758.
Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir., 1989).
6 See, Montavon v. U. S., 864 F. Supp. 519, 522 (E.D.Va., 1994) (“Under Virginia law, such a lien
comes into existence on the making of the contract of employment between the client and attorney,
but then remains inchoate until judgment or recovery is obtained.”)
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26
Yet the Ninth Circuit applied an “abuse of discretion” standard of review,
sidestepping the de novo standard appropriate to review interpretations of judicial
orders. The Court had incorrectly ignored the command of Chick Kam Choo v.
Exxon Corp., 486 U.S. 140, 148 (1988), holding that a district court may not “render
a post hoc judgment as to what the order was intended to say.” Feinman stressed
the district court’s original interpretation of the Settlement Agreement,
contemporaneous with its approval of it, to resolve objections that the class
settlement “failed to deal with the liens created by agreement or operation of law,” by
holding the settlement was “silent as to Volkswagen’s obligations to pay the fees and
costs of attorneys other than Class Counsel.” (App. G, p. 39 of 48)
Finally, as noted, Mr. Feinman’s combined petition pointed out that
Volkswagen II expressly held that the Court therein did not purport to decide
Feinman’s lien-based rights against VW under Virginia law. 914 F.3d at 647. The
Panel’s opinion that Volkswagen II “release[d] his statutory lien claim” constitutes
an additional clear and prejudicial error.
REASONS FOR GRANTING THE PETITION FOR WRIT OF CERTIORARI
I. Due Process of Law; Questions Presented 1 through 5
The Ninth Circuit affirmed the district court’s decision that a settlement
reached between Class Members and VW extinguished Feinman’s vested property
rights. It thereby disregarded long-established, fundamental due process
principles. The Ninth Circuit’s holdings will not go unnoticed. They will establish a
{2821 / 017}
27
new precedent for untold yet predictable future deprivations of vested property
rights in class action cases.
In the setting of a massive class action, the extinguishment of Mr. Feinman’s
statutory attorney’s fee liens, those of an attorney who represented individual Class
members before a class was established, before it was certified, and before a
settlement was reached, will effectively annul State laws that encourage the
availability of consumer counsel. See, e.g., Wilkins v. Peninsula Motor Cars, Inc.,
266 Va. 558, 563 (2003) (“The fee shifting provisions of the Virginia Consumer
Protection Act are designed to encourage private enforcement of the provisions of the
statute.”) Massive consumer frauds by the world’s largest corporations, as
demonstrated here, require the services of attorneys for the hundreds of thousands
of consumers who sustain losses. Virginia law encourages these attorneys to come
forward, secure in the knowledge their work on a contingent basis is protected by
lien if they are discharged and the plaintiff and defendant reach a settlement. It is
well and good for the district court to appoint a 22-attorney PSC for a Class
exceeding 475,000 consumers. But due process of law forbids Class Representatives
and corporate defendants from extinguishing the vested rights arising from
statutory attorney’s fee liens. Those liens protect the property rights of attorneys
who serve the thousands of consumers before a class is established or a settlement
proposed.
The Ninth Circuit’s decision violates bedrock due process principles. As
Justice Ginsberg noted in Taylor v. Sturgell, 553 U.S. 880, 892 (2008):
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28
A person who was not a party to a suit generally has not
had a “full and fair opportunity to litigate” the claims and
issues settled in that suit. The application of claim and
issue preclusion to nonparties thus runs up against the
“deep-rooted historic tradition that everyone should have
his own day in court.” Richards, 517 U.S., at 798, 116 S.Ct.
1761…Indicating the strength of that tradition, we have
often repeated the general rule that “one is not bound by a
judgment in personam in a litigation which he has not
designated as a party or to which he has not been made a
party by service of process. (Internal citations omitted).
In Martin, 490 U.S. at 761-62, 768 (internal citations omitted), the Court
held:
All agree that [it] is a principle of general application in
Anglo-American jurisprudence that one is not bound by a
judgment in personam in a litigation in which he is not
designated as a party or to which he has not been made a
party by service of process…A judgment or decree among
parties to a lawsuit resolves issues as among them, but it
does not conclude the rights of strangers to those
proceedings.
***
“[P]arties who choose to resolve litigation through
settlement may not dispose of the claims of a third
party…without that party’s agreement. A court’s approval
of a consent decree between some of the parties therefore
cannot dispose of the valid claims of nonconsenting
[individuals].
Here, the Class Representatives and VW “dispose[d] of the claims of a third party.”
Martin, 490 U.S. at 768. Also, because Feinman’s attorney’s fee lien claim arose
after the amended Complaint’s filing, the Ninth Circuit’s decision contravenes the
holding of Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc., 140 S.Ct.
1589, 1596-97 (May 14, 2020) If this deprivation of Mr. Feinman’s due process
{2821 / 017}
29
rights is not reversed, he will lose valuable property, as will many others in the
future.
II. The “Impermissible Collateral Attack” Doctrine and
the Anti-Injunction Act; Questions Presented 6 and 7
The Ninth Circuit herein gave preclusive effect to Mr. Feinman’s “failure” to
intervene in the class action, or to appeal the Settlement Approval Order. Yet this
Court has rejected the so called “impermissible collateral attack” doctrine:
“Joinder as a party, rather than knowledge of a
lawsuit and an opportunity to intervene, is the method
by which potential parties are subjected to the jurisdiction
of the court and bound by a judgment or decree. The parties
to a lawsuit presumably know better than anyone else the
nature and scope of relief sought in the action, and at whose
expense such relief might be granted. It makes sense,
therefore, to place on them a burden of bringing in
additional parties where such a step is indicated,
rather than placing on potential additional parties
a duty to intervene when they acquire knowledge of
the lawsuit. The linchpin of the ‘impermissible collateral
attack’ doctrine—the attribution of preclusive effect to a
failure to intervene—is therefore quite inconsistent with [F.
R. App. P.] Rule 19 and Rule 24.
Martin, 490 U.S. at 765; (clarification and emphasis added).
After Martin, other federal circuit courts considering application of the
“impermissible collateral attack” doctrine have correctly rejected it. See, Northeast
Ohio Coalition for the Homeless v. Husted, 837 F.3d 612, 623 (6th Cir., 2016); Pace
v. Timmermann’s Ranch and Saddle Shop, Inc., 795 F. 3d 748, 755 (7th Cir., 2015);
Cook v. Food & Drug Adm., 733 F 3d 1, 11-12 (D.C. Cir. 2013); Massachusetts
Delivery Ass’n v. Coakley, 671 F. 3d 33, 46 n.10 (1st Cir. 2012); U.S. v. Brennan, 650
F.3d 65, 118 (2d Cir. 2011). If the Court does not correct the Ninth Circuit’s error, it
{2821 / 017}
30
and other federal courts undoubtedly will recommence use of the doctrine in ways
that conflict with this Court’s precedent and that deprive third-party rights.
VW’s argument below that Mr. Feinman was in “privity” with his former
clients in effort to justify this claim preclusion is without merit. When the district
court entered its October 25, 2016, injunction against Class members “and any
person purportedly acting on behalf of any Class Member,” Feinman represented no
such persons. He had not served as counsel to his 403 former clients since the
September 16, 2016, opt-out date. On that date, the PSC became the exclusive
counsel for Class members. Feinman and his former clients had no mutual or
common interest in the subject matter. Mr. Feinman’s only interest was to secure
his attorney’s fee lien. His former clients had no right or authority to affect his
vested interest in the liens. Those property rights were Feinman’s alone.
“Privity” – for the purposes of applying the doctrine of res judicata – is a legal
conclusion “designating a person so identified in interest with a party to former
litigation that he represents precisely the same right in respect to the subject
matter involved.” In re: Schimmels, 127 F. 3d 875, 881 (9th Cir. 1997). (Emphasis
added). Neither Mr. Feinman nor his former clients had “precisely the same right in
respect to the subject matter involved” and thus privity did not exist between them
so as to underpin claim preclusion.
Well-established precedent holds that any command of a consent decree or
order must be found “within its four corners…and not by reference to any ‘purposes’
of the parties or of the underlying statutes.” U.S. v. ITT Continental Baking Co., 420
{2821 / 017}
31
U.S. 223, 233 (1975). The injunction within the October 25, 2016, Settlement
Approval Order was clear and limited: “9. Class Members who have not properly
opted out and any person purportedly acting on behalf of any Class Member(s) are
ENJOINED from…pursuing…any Released Claims…” (ER 801-802) (App. G, p. 47
of 48). Pursuant to this Court’s precedent, the Settlement Approval Order simply
did not encompass Mr. Feinman or his property rights, either directly or through
application of FRCP 65(d)(2).7 The district court failed to interpret the Settlement
Approval order according to the four corners of its language, and erroneously
invoked the putative purposes of the parties to justify extinguishing Mr. Feinman’s
vested property rights.
The Ninth Circuit erred by condoning this forbidden
methodology to interpret the Settlement Approval Order’s language. See, App. C. at
pp. 4-5.
Finally, because the injunction of October 25, 2016, did not enjoin the
Virginia State court from proceeding to adjudicate Mr. Feinman’s State law claims,
the district court was obliged in its May 6, 2019, Order to articulate a specific
7 Moreover, the district court’s finding there would not have been a settlement without the sacrifice
of Feinman’s lien is speculative and not supported by any evidence. VW agreed to settle without
knowing what the fees of the PSC actually were, other than an agreement that their fees would be
“no more than $324 million in attorney fees, plus actual and reasonable out-of-pocket costs not to
exceed $8.5 million.” (See, District Court DKT #1730). VW ended up paying “only” $175 million in
fees. The difference in the possible maximum VW agreed to and what it actually paid leaves ample
funds to satisfy Feinman’s lien. Furthermore, VW did not appeal the ruling that the Class
Settlement was silent in regard to payment of non-class counsel, even after the Labudde Objection
informed VW the continued existence of “silent” statutory attorney’s fee liens. In short, the class
action settlement was not dependent on extinguishing Feinman’s lien. Feinman’s claim of
$1,500,000 for legal work on behalf of 403 former clients ($3,722 per former client) is but fifteen
thousandths of one percent (0.015%) of the $10 billion set aside for the settlement. See, (App. E, at
p. 8) As argued, consistent with due process, no class action settlement can be premised on a secret
agreement that non-class members and non-parties unknowingly must subsidize part of the
defendant’s settlement costs.
{2821 / 017}
32
exception to the Anti-Injunction Act. Atlantic Coast Line R. Co. v. Brotherhood of
Locomotive Engineers, 398 U.S. 281, 287 (1970) (Enjoining state court proceedings
“must be based on one of the specific statutory exceptions to [the Anti-Injunction Act]
if it is to be upheld” and “the prohibition of [the Anti-Injunction Act] cannot be
evaded by addressing the order to the parties or prohibiting utilization of the results
of a completed state proceeding.”).
The district court did not base the injunction of its May 6, 2019, Order on any
of the specific exceptions to the Anti-Injunction Act, and for this additional reason,
that Order’s injunction against Mr. Feinman and the Virginia court action should
be reversed on Federalism principles. Atlantic Coast Line, 398 U.S. at 287.
The Ninth Circuit’s holdings should be reversed, and the litigation concerning
Mr. Feinman’s enforcement of his statutory attorney’s fee liens remanded to the
Circuit Court for the City of Roanoke, Virginia, for adjudication.
CONCLUSION
Petitioner, James B. Feinman, by counsel, therefore respectfully requests
that the Court grant this Petition for Writ of Certiorari.
Respectfully submitted
NORMAN A. THOMAS
Counsel of Record
NORMAN A. THOMAS, PLLC
1015 East Main Street
Lower Level
Richmond, VA 23219
(804) 303-9538
norman@normanthomaslaw.com
Counsel for Petitioner
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APPENDIX A
(1 of 8)
Case: 19-16074, 08/17/2020, ID: 11790592, DktEntry: 35-1, Page 1 of 4
FILED
NOT FOR PUBLICATION
AUG 17 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT
In re: VOLKSWAGEN "CLEAN DIESEL"
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION,
______________________________
No.
JAMES BEN FEINMAN,
MEMORANDUM*
U.S. COURT OF APPEALS
19-16074
D.C. No. 3:15-md-02672-CRB
Plaintiff-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted August 11, 2020**
Anchorage, Alaska
Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges.
James B. Feinman appeals the district court’s order granting Volkswagen
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(2 of 8)
Case: 19-16074, 08/17/2020, ID: 11790592, DktEntry: 35-1, Page 2 of 4
Group of America, Inc. (“Volkswagen”)’s motion to enforce a class settlement
approval order. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.
Because the parties are familiar with the facts and procedural history, we recite
them only as necessary to resolve the issues on appeal.
We review the district court’s order enforcing the class settlement and final
approval order for an abuse of discretion. See Wilcox v. Arpaio, 753 F.3d 872, 875
(9th Cir. 2014); California Dep’t of Soc. Servs. v. Leavitt, 523 F.3d 1025, 1031
(9th Cir. 2008).
1.
Feinman’s statutory lien claim under Virginia law was a released
claim under the settlement agreement. We approved the settlement two years ago,
In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prod. Liab. Litig.
(“Volkswagen I”), 895 F.3d 597, 619 (9th Cir. 2018), and subsequently held that
Volkswagen did not agree to compensate non-class counsel such as Feinman under
the settlement agreement, In re Volkswagen “Clean Diesel” Mktg., Sales
Practices, & Prod. Liab. Litig. (“Volkswagen II”), 914 F.3d 623, 646 (9th Cir.
2019). Feinman’s argument that the settlement did not release his statutory lien
claim is contrary to our ruling in Volkswagen II and the plain text of the release
provision in the agreement, which explicitly releases “any claims for . . . liens, . . .
attorneys’ . . . or other litigation fees . . . .” Similarly, Feinman’s arguments that he
is not a member of the class and that his clients had no authority to release his
2
(3 of 8)
Case: 19-16074, 08/17/2020, ID: 11790592, DktEntry: 35-1, Page 3 of 4
statutory claim are nothing more than a belated objection to the settlement. See
Slaven v. Am. Trading Transp. Co., 146 F.3d 1066, 1069 (9th Cir. 1998) (holding
that failure “to raise an objection to an issue before judgment” amounts to waiver
(citing Gen. Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500, 1507 (9th Cir.
1995))).
2.
Feinman’s claim that the district court’s injunction does not comply
with the Anti-Injunction Act, 28 U.S.C. § 2283, is without merit and
misapprehends the order under review on appeal. Volkswagen moved to enforce
the district court’s order granting final approval of the settlement—a prior order
that enjoined class members and persons acting on their behalf from pursuing any
claims released under the settlement agreement against Volkswagen. Again, we
upheld that underlying final approval order two years ago in Volkswagen I, 895
F.3d at 619, and the district court explicitly retained jurisdiction to enforce the
settlement and order. Feinman’s challenge to the validity of an order already
affirmed on appeal has no merit, and the district court properly enforced its prior
order and injunction. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1025 (9th Cir.
1998) (“Although comity requires federal courts to exercise extreme caution in
interfering with state litigation, federal courts have the power to do so when their
jurisdiction is threatened”), overruled on other grounds by Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338 (2011); Arata v. Nu Skin Int’l, Inc., 96 F.3d 1265, 1269 (9th
3
(4 of 8)
Case: 19-16074, 08/17/2020, ID: 11790592, DktEntry: 35-1, Page 4 of 4
Cir. 1996) (concluding that district court had subject matter jurisdiction to enforce
the agreement where it “explicitly reserve[d] ‘continuing and exclusive
jurisdiction’ to enforce the settlement”).
3.
Feinman’s remaining arguments, including his claim that the
settlement voids Virginia’s public policy and violates the Supremacy Clause and
the Full Faith and Credit Clause of the United States Constitution, are unsupported
and also amount to belated attempts to collaterally attack the settlement and final
approval order. As the district court noted, Volkswagen has disbursed the
settlement funds to class members, and Feinman remains free to collect his fees
from his clients.
AFFIRMED.
4
APPENDIX B
Case 3:15-md-02672-CRB Document 6264 Filed 05/06/19 Page 1 of 5
1
2
UNITED STATES DISTRICT COURT
3
NORTHERN DISTRICT OF CALIFORNIA
4
5
6
7
8
9
IN RE: VOLKSWAGEN “CLEAN DIESEL”
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION
_____________________________________/
This Order Relates To:
Dkt. No. 5824
_____________________________________/
MDL No. 2672 CRB (JSC)
ORDER GRANTING VOLKSWAGEN’S
MOTION TO ENFORCE THE 2.0LITER SETTLEMENT APPROVAL
ORDER
United States District Court
Northern District of California
10
11
When a lawyer is hired to file a lawsuit, state law often provides the lawyer with a
12
charging lien. The charging lien attaches to any money awarded to the plaintiff in the case. If the
13
plaintiff, upon receiving an award, refuses to pay his attorney’s fees and costs, the attorney can
14
seek to enforce the lien in court. See generally 7 Am. Jur. 2d Attorneys at Law §§ 316–37 (2019)
15
(providing an overview on charging liens).
16
A charging lien can also protect a lawyer who is released and replaced. If the plaintiff
17
hires a new lawyer who later obtains a monetary award, the original lawyer may be able to rely on
18
the charging lien to get paid for work performed prior to the change in counsel. See, e.g., Artache
19
v. Goldin, 173 A.D.2d 667, 667 (N.Y. App. Div. 1991) (holding that a discharged lawyer was
20
“entitled to a charging lien for the reasonable value of services rendered prior to the date of
21
substitution of counsel”); Heinzman v. Fine, Fine, Legum & Fine, 234 S.E.2d 282, 286 (Va. 1977)
22
(holding that a “discharged attorney is entitled to a fee based upon quantum meruit for services
23
rendered prior to discharge”) (footnote omitted).
24
In some circumstances, a plaintiff’s attorney can also use a charging lien to recover fees
25
from the defendant. When the plaintiff’s lawyer provides the defendant with notice of the lien,
26
and the defendant later settles with the plaintiff without notifying the plaintiff’s lawyer, some
27
courts have required the defendant to pay the plaintiff’s lawyer’s fees. See, e.g., Watson v. Nosal
28
Realty, LLC, No. 4240/01, 2002 WL 1592603, at *2 (N.Y. Sup. Ct. July 2, 2002) (explaining that
United States District Court
Northern District of California
Case 3:15-md-02672-CRB Document 6264 Filed 05/06/19 Page 2 of 5
1
“a defendant who settles a cause of action with a plaintiff, without the plaintiff’s attorney’s
2
knowledge,” may be held liable “for the value of the services and disbursements of his opponent’s
3
attorney”) (internal quotation marks omitted); Katopodis v. Liberian S/T Olympic Sun, 282 F.
4
Supp. 369, 372 (E.D. Va. 1968) (explaining that the defendant, “in negotiating the settlement with
5
plaintiff ‘behind the back’ of plaintiff’s counsel . . . , [and knowing] of the plaintiff’s counsel’s
6
lien, . . . acted in bad faith” and “at his peril” and is therefore “liable” for the fee). To avoid this
7
outcome, it may be the defendant’s duty to determine the amount of money owed to the plaintiff’s
8
lawyer and to retain it for him. See Fischer-Hansen v. Brooklyn Heights R. Co., 66 N.E. 395, 398
9
(N.Y. 1903); Watson, 2002 WL 1592603, at *2.
10
With respect to the “clean diesel” litigation, when the public learned that Volkswagen (or
11
VW) had installed defeat devices in hundreds of thousands of its diesel cars, lawyers nationwide
12
raced to file lawsuits against the company on behalf of consumers who had bought or leased the
13
cars. Some of those lawyers gave VW notice that, pursuant to state law, they were placing
14
charging liens on their clients’ claims. (See, e.g., Dkt. No. 2159 (listing certain attorneys who
15
notified VW of charging liens).)
16
A different set of lawyers, which this Court appointed, thereafter negotiated class
17
settlements with VW on behalf of consumers who had bought or leased the affected cars. (One
18
settlement covered the 2.0-liter cars; the other covered the 3.0-liter models.) The EPA, the FTC,
19
and the California Air Resources Board, all of which were simultaneously negotiating consent
20
decrees with VW, participated in the negotiations and supported the settlements.
21
A substantial number of consumers who had retained their own lawyers left those lawyers
22
(and the cases they had filed) and accepted the class settlements. The consumers who accepted the
23
settlements released “on behalf of themselves and their . . . attorneys, . . . . any claims for . . . liens
24
. . . [or] attorneys’ . . . fees or costs other than fees and costs awarded by the Court in connection
25
with this Settlement.” (2.0-Liter Settlement ¶ 9.3, Dkt. No. 1685; accord 3.0-Liter Settlement
26
¶ 12.3, Dkt. No. 2894.)
27
Despite the release of lien claims, James Feinman, a lawyer who filed lawsuits against VW
28
on behalf of some consumers who later accepted the 2.0-liter settlement, filed an action in Virginia
2
Case 3:15-md-02672-CRB Document 6264 Filed 05/06/19 Page 3 of 5
1
state court, late last year, to enforce charging liens against VW. (See Monahan Decl., Ex. A, Dkt.
2
No. 5824-2.) He asserts that he gave VW notice of the liens before the settlement, and he argues
3
that the liens entitle him to recover reasonable fees and costs from VW for work that he did for his
4
clients before they accepted the settlement. In response to Feinman’s lien action, VW filed a
5
motion in this Court to enforce the settlement’s release of lien claims. That motion is at issue.
The 2.0-liter settlement’s release covers Feinman’s lien claims. It not only applies to class
United States District Court
Northern District of California
6
7
members, but also to their attorneys, and it releases “any claims” by class members or their
8
attorneys “for . . . liens . . . [or] attorneys’ . . . fees.” (2.0-Liter Settlement ¶ 9.3.)1 Feinman has
9
not offered any reading of the release that would leave his liens against VW intact. He urges,
10
though, that because the liens were his own, not his clients’, and because he was not a class
11
member—and was not represented by anyone whose interests were aligned with his—the release
12
cannot be construed as releasing his liens without violating his due process rights. (See Opp’n,
13
Dkt. No. 5882 at 16-20.)
14
Feinman had notice of the 2.0-liter settlement and its precise terms before the Court
15
approved it. In a motion for attorneys’ fees that he filed after settlement approval, he requested
16
fees for, among other things, time that he spent reviewing the settlement and advising his clients
17
on whether to accept it. (See Feinman’s Fees Mot., Dkt. No. 2643-6 at 13-15.) Indeed, before
18
settlement approval, Feinman even objected to the settlement on behalf of one of his clients. (See
19
Objection, Dkt. No. 1893.) But he never objected to paragraph 9.3 of the settlement, which is the
20
release.
21
Because Feinman had notice of the 2.0-liter settlement, the Court construes his opposition
22
to VW’s motion to enforce the release as a belated attempt to object to the settlement; a settlement
23
that this Court approved over two years ago and that the Ninth Circuit agreed was fair and
24
25
26
27
28
1
The settlement did leave open the possibility that this Court would award fees to non-class
counsel if they demonstrated that their work benefited the class. (See 2.0-Liter Settlement ¶ 9.3
(explaining that the release did not apply to “fees and costs awarded by the Court in connection
with this Settlement”).) Non-class counsel were not able to make such a showing. VW was thus
not required to pay their fees as part of the class action. See In re Volkswagen “Clean Diesel”
Mktg., Sales Practices, & Prod. Liab. Litig., No. MDL 2672 CRB (JSC), 2017 WL 1474312, at *5
(N.D. Cal. Apr. 24, 2017) (denying non-class counsel’s motions for attorneys’ fees), aff’d, 914
F.3d 623 (9th Cir. 2019).
3
Case 3:15-md-02672-CRB Document 6264 Filed 05/06/19 Page 4 of 5
1
reasonable. See In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prod. Liab. Litig.,
2
895 F.3d 597, 617 (9th Cir. 2018). The Court will not consider Feinman’s late objection. VW
3
reasonably relied on the release’s scope when it agreed to settle, and the Court will not modify the
4
release at this juncture. See also Schneider, Kleinick, Weitz, Damashek & Shoot v. City of New
5
York, 302 A.D.2d 183, 188 (N.Y. App. Div. 2002) (noting that a lawyer may waive or forfeit a
6
charging lien by neglect).
The Court also notes that the release of attorneys’ lien claims against VW was essential to
United States District Court
Northern District of California
7
8
the settlement’s success. When this MDL began there was an ongoing harm that needed to be
9
remedied: approximately 600,000 cars were emitting dangerous pollutants in the United States at
10
levels that greatly exceeded legal limits. (See Feb. 25, 2016 Hr’g Tr. 12:20-13:14 (explaining that
11
this ongoing environmental harm required urgent action by class counsel, VW, and the
12
government).) To incentivize consumers to stop driving the cars, VW offered to buy the cars back
13
at pre-scandal prices. The expectation was that consumers would then use those funds to buy or
14
lease replacement cars.
The incentive worked. Within four months of approval, VW had taken possession of
15
16
137,979 2.0-liter TDI cars, 28 percent of the total number. (See Feb. 27, 2017 Claims
17
Supervisor’s Report, Dkt. No. 2979 at 56.) And within 24 months of approval, VW had removed
18
from commerce or modified 455,394 2.0-liter TDI cars, approximately 94 percent of the total
19
number. (See Nov. 26, 2018 Claims Supervisor’s Report, Dkt. No. 5585 at 36.)2
If class members had not released their lawyers’ lien claims, it is unlikely that these results
20
21
would have been achieved. Without the release, VW likely would have been unable to disburse
22
the settlement funds directly to consumers. If it had nonetheless done so, it would have risked
23
later court orders requiring it to pay additional money (above what it had paid class members) to
24
satisfy the liens. Without VW disbursing the settlement funds directly to consumers, it is probable
25
26
27
28
2
Consumers had the option to return their cars to VW or to keep their cars but to have them
modified. Both options included financial incentives, as VW agreed to make restitution payments
to participating class members in either scenario. (See Approval Order, Dkt. No. 2102 at 6-7.)
The buyback has been the preferred option. As of November 18, 2018, 85 percent of class
members who selected a remedy had chosen the buyback over the modification. (See Nov. 26,
2018 Claims Supervisor’s Report, Dkt. No. 5585 at 11.)
4
United States District Court
Northern District of California
Case 3:15-md-02672-CRB Document 6264 Filed 05/06/19 Page 5 of 5
1
that consumers would have hesitated to return their polluting cars, which would have left the cars
2
on the road and their emissions in the air.
3
Even if VW had made partial payments to class members, but held back the remaining
4
funds until it knew for certain whether it would be required to satisfy charging liens, harmful
5
ripple effects could have resulted. In such a scenario, consumers wouldn’t have known the exact
6
amounts that they stood to gain by participating in the settlement. And with that uncertainty, they
7
may have refused to participate in the settlement and may have kept driving their VW cars.
8
VW’s prompt payment of the settlement funds directly to affected consumers was needed
9
to quickly remove the polluting cars from the road. The release gave VW assurances that it could
10
distribute the funds to consumers without penalty. It was instrumental to the success of the
11
settlement and, indeed, VW’s counsel has represented that without it “a settlement [would] not
12
have been achieved.” (Apr. 23, 2019 Hr’g Tr. 46:3-4.)
13
While the 2.0-liter settlement released Feinman’s liens against VW, the Court notes that
14
his liens against the res itself were not affected by the settlement. VW has disbursed the
15
settlement funds to class members, and if Feinman believes he has a right to a portion of those
16
funds, he may seek to recover against his clients. Whether such a recovery is warranted is a matter
17
that is not before this Court.
18
The lien claims that Feinman is currently pursuing against VW in Virginia state court are
19
released claims. In the 2.0-liter settlement approval order, this Court enjoined releasing parties
20
“from commencing, filing, initiating, instituting, pursuing, maintaining, enforcing or prosecuting,
21
either directly or indirectly, any Released Claims . . . in any jurisdiction or forum, against any of
22
the Released Parties.” (Approval Order at 47 ¶ 9.) Pursuant to that Order, Feinman is enjoined
23
from pursuing his lien claims against VW.
24
25
IT IS SO ORDERED.
Dated: May 6, 2019
26
CHARLES R. BREYER
United States District Judge
27
28
5
APPENDIX C
Pages 1 - 56
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Before The Honorable Charles R. Breyer, Judge
In Re: Volkswagen "Clean
Diesel" Marketing, Sales
Practices, and Products
Liability Litigation,
)
)
)
)
)
)
)
San Francisco, California
Tuesday, April 23, 2019
TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
For Plaintiffs:
Law Office of James B. Feinman
1003 Church Street
Lynchburg, VA
24504
BY:
For Defendant
Volkswagen:
Sullivan & Cromwell, LLP
125 Broad Street
New York, NY
10004
BY:
Reported By:
JAMES B. FEINMAN, ESQ.
SHARON L. NELLES, ESQ.
Vicki Eastvold, RMR, CRR
Official Reporter
D14
2
1
Tuesday - April 23, 2019
9:51 a.m.
2
P R O C E E D I N G S
3
---000---
4
THE CLERK:
Calling Civil Action C15-2672, In Re:
5
Volkswagen "Clean Diesel" Marketing, Sales Practices, and
6
Products Liability Litigation.
7
8
Counsel, please step forward or state your appearances
using the microphones.
9
Thank you.
Good morning, Your Honor.
MS. NELLES:
Sharon Nelles
10
from Sullivan & Cromwell on behalf of Volkswagen Group of
11
America.
12
13
MR. FEINMAN:
Good morning, Your Honor, James B.
Feinman, Lynchburg, Virginia, on behalf of myself.
14
THE COURT:
So this matter is on in response to a
15
motion filed by Volkswagen to seek an interpretation of the
16
settlement agreement in which the class action, consumer class
17
action matter, was resolved.
18
And the plaintiff, Mr. Feinman, is here in opposition to that
19
motion.
20
MR. FEINMAN:
21
THE COURT:
Correct, Your Honor.
I assume -- so I have a number of
22
questions.
23
everybody can hear on the --
24
25
Is that a fair way of saying it?
Why don't you come forward, Mr. Feinman, so
You are -- first, you are representing yourself in this
matter, is that correct?
D15
3
1
MR. FEINMAN:
2
THE COURT:
That's correct, Your Honor.
So this is on your behalf, not on behalf
3
of the clients whom you've represented in connection with the
4
settlement -- or, in connection with the claims against
5
Volkswagen.
6
MR. FEINMAN:
Yes, sir.
7
questions Your Honor wants.
8
presentation --
9
THE COURT:
Yes, sir.
I'll answer any
Or if you want me to make a
I want to ask questions.
But I want to
10
make sure in doing so I am accurate in what the -- in what
11
we're --
12
MR. FEINMAN:
13
THE COURT:
14
Yes, certainly.
-- adjudicating at this point.
Since it -- now, this may be collateral to this particular
15
issue.
16
in Virginia seeking certain relief against Volkswagen for
17
certain claims against Volkswagen.
18
federal court, and that matter is awaiting a decision by the
19
multi-district litigation panel as to whether it should be
20
related to the Volkswagen class action in my court.
21
Collateral, in some sense.
MR. FEINMAN:
Yes, sir.
Is that you filed an action
That matter was removed to
To be precise and accurate, I
22
filed a lawsuit in Virginia state court in Roanoke, Virginia,
23
seeking to enforce an attorney's fee lien provided by the
24
General Assembly of Virginia in the statute giving lawyers a
25
lien.
This was done after we had been to the Ninth Circuit.
D16
4
1
When Your Honor entered the order on April 24, 2017, it
2
was my understanding of that order that I was free to proceed
3
to assert my attorney's fee lien granted by the Commonwealth of
4
Virginia.
5
6
As -- I think I should back up just a second to make sure
the Court understands the facts.
7
Every client that I had, as well as every other client
8
I've ever had for the last 33 years, in Virginia when we get --
9
when a plaintiff's lawyer gets a client, we send a letter to
10
the defendant or the defendant's counsel asserting the statute
11
and putting them on notice of the lien.
12
lien, under Virginia law.
13
matter of course that we do.
14
That perfects the
Then we go forward.
It's just a
There's very few cases where the defendants don't honor
15
the lien.
It's kind of rare that that happens.
16
what happened --
But that's
Very few cases in which what?
17
THE COURT:
18
MR. FEINMAN:
The defendant does not honor the lien.
19
It doesn't happen very often, but it does happen.
20
follow what I'm --
21
THE COURT:
Do you
I understand what you're saying, but I'm
22
not here to develop a record as to what is the procedure in
23
Virginia.
24
light on your position.
25
I find what you've said - you know, it may shed some
But what I'm here to adjudicate is not the fairness of the
D17
5
1
Virginia statute; that is, to say the procedure and so forth
2
and so on.
3
valid claim, right, interpretation, whatever we want to say, in
4
the relief that they're seeking.
5
don't feel I need to interpret Virginia law.
6
issue.
7
required to do.
8
I'm here to adjudicate whether Volkswagen has a
That's what's before me.
I
So that's another
I mean, that's something that I don't think I'm
But let me ask you some basic questions because I think
9
that I am interested and it may shed some light on what is the
10
procedure that you follow.
11
you follow is you represent a client -- in this case, let's
12
talk about approximately 400 clients --
13
MR. FEINMAN:
14
THE COURT:
15
16
403.
And as I understand the procedure
Yes, sir.
-- 403 clients who actually are members of
the class and who did not opt out of the class in front of me.
MR. FEINMAN:
Correct.
When I started my
17
representation there was no class certified.
18
settlement.
19
representation, it was all prior to any certification of a
20
class and prior to any class settlement.
21
There was no
This was all prior -- when I undertook
THE COURT:
Well, then I don't think it was prior to
22
any notice of the MDL.
You're not telling me that the 400
23
people you represented were all on board in your collection of
24
cases prior to December of -- is it '15 or '16?
25
years confused.
What year was the disclosure?
D18
I get the
6
1
MS. NELLES:
2016.
2
THE COURT:
2016.
3
MR. FEINMAN:
2015.
4
MS. NELLES:
Oh.
5
MR. FEINMAN:
It was September 18, 2015, was when the
6
EPA Notice of Violation --
7
THE COURT:
8
2015, Your Honor.
That's right.
Nobody knew about it before
-- when I say "nobody" I'm saying --
9
MR. FEINMAN:
10
THE COURT:
11
So in other words, the --
I didn't.
Nor did I.
None of my clients did.
Okay.
So we're now talking
about subsequent to September of 2015.
Yes, sir.
12
MR. FEINMAN:
13
THE COURT:
14
entered in December of 2015.
15
may have had a number of clients, but you're not representing
16
to me you had all 400 clients before December of 2015, in two
17
months?
18
19
20
The MDL order was, by the MDL panel, was
MR. FEINMAN:
happened.
I don't think -- I understand you
I can tell you the exact date that that
I mean, because we have letters, you know, where --
THE COURT:
I'm not asking you for your proof.
I'm
21
just asking you are you representing to me -- not that -- I
22
don't think it's going to make any difference at all but I just
23
-- I'm just curious because I want to go through the process
24
with you for a few minutes.
25
people came on board -- that is, into your -- seeking legal
Curious as to whether or not 400
D19
7
1
2
services from you -- in that two-month period.
MR. FEINMAN:
3
the exact date.
4
relying on memory.
5
THE COURT:
6
MR. FEINMAN:
Your Honor, I'm capable of determining
I don't have that in front of me so I'm only
Yes.
Yes.
Which is -- that's all I can tell you at
7
this point.
8
that the vast bulk of them I think I undertook representation
9
between September 18, 2015, and the end of that year.
10
that's just from memory, Your Honor.
11
determination.
12
I can give you the exact dates.
But my memory is
But
It's capable of accurate
I just don't have that in front of me.
THE COURT:
In December of that year, however, the MDL
13
panel entered its order.
14
December, thereabouts, creating the MDL.
15
MR. FEINMAN:
16
THE COURT:
I think it was the first week of
Putting that aside --
Yes, sir.
-- I just want to put a context of it.
So
17
you -- I think it's fair to say to you -- a number of clients
18
came in before that date but possibly not all 400.
19
20
MR. FEINMAN:
from memory.
I think that's accurate.
I'm just going
That could -Let me move forward.
21
THE COURT:
22
MR. FEINMAN:
23
THE COURT:
Yes, sir.
I need you to tell me -- the claim says --
24
what is the letter that you send to Volkswagen?
25
Volkswagen -- or, to a putative defendant --
D20
Do you say to
8
1
MR. FEINMAN:
2
THE COURT:
3
Yes, sir.
Do you say:
This is to advise you that I
represent X.
4
MR. FEINMAN:
5
THE COURT:
Yes, sir.
X has a claim against Volkswagen.
I am
6
hereby, and according to the laws of the Commonwealth of
7
Virginia, asserting an attorney's lien.
8
And then does it say, for example -- maybe it's in the
9
record.
10
amount of X as a percentage X?
11
attorney's lien.
12
I don't know.
MR. FEINMAN:
Does it say:
Attorneys lien in the
Or, does it simply say:
It simply says attorney's fee.
13
doesn't assert the amount.
14
THE COURT:
It doesn't assert the amount.
An
It
So it
15
simply says:
We have a lien on -- and I have to believe it
16
uses the word something like a claim, a settlement, a
17
reimbursement, a disbursement, something related to a payment
18
by Volkswagen of some compensation in connection with the
19
claim.
Yes, sir.
20
MR. FEINMAN:
21
Virginia have held and ruled --
And the federal courts in
I -- I just really -- wait, Mr. Feinman.
22
THE COURT:
23
MR. FEINMAN:
24
THE COURT:
25
MR. FEINMAN:
I'm sorry.
I just want to know the facts.
Yes, sir.
D21
9
1
THE COURT:
I don't want -- at this point -- we'll
2
talk about the law in a minute but I need to know the facts
3
because the facts give rise to whatever interpretation the law
4
is going to permit.
5
Okay.
So --
6
MR. FEINMAN:
7
THE COURT:
8
No, no, no.
You got to listen to my
questions.
9
MR. FEINMAN:
10
THE COURT:
11
So --
Yes, sir.
All right.
Okay.
So you then send that
letter.
12
MR. FEINMAN:
13
THE COURT:
Yes.
Now I'd like to talk about the ordinary
14
course.
That is, your expectation of the procedure that you
15
would follow.
16
Virginia as it is in California.
17
Virginia.
And I don't know whether it's the same in
I've never practiced in
Of course, I've practiced in California.
18
California, the procedure would be that -- we'll use
19
Volkswagen as an example, that is the defendant, would resolve
20
the claim through settlement or otherwise, and be required by
21
virtue of the resolution of the claim to pay something.
22
a settlement, or a disbursement, or however it's characterized.
23
And that -- then my question is -- and we'll use an
24
example, theoretical example, that one of your clients of the
25
403 was entitled to $20,000.
Called
That was what the resolution of
D22
10
1
2
the claim would be.
According to your expectation and your understanding of
3
Virginia law, what, then, would happen?
4
$20,000.
5
happens next?
6
Volkswagen has
Your client is entitled to $20,000.
MR. FEINMAN:
Okay.
What then
Your Honor, the way I have to
7
answer that, based on my 33 years practice, is that when we're
8
pursuing a case that allows for fee shifting, if we go to court
9
and we win, we become the prevailing party, then our fees are
10
determined by the court.
11
so that's the only way I've ever seen it.
I've never had it done any other way
On fee shifting.
12
THE COURT:
13
MR. FEINMAN:
In a fee shifting case, which is what
14
this was.
Under Virginia law, under our Consumer Protection
15
Act and our fraud, there is fee shifting which allows the
16
prevailing party, if they're the plaintiff, to recover fees.
17
And that was the type of action that I was pursuing on behalf
18
of these 403 people, as well as -Let's take the two cases and then we'll
19
THE COURT:
20
decide what this is.
21
MR. FEINMAN:
22
THE COURT:
Okay.
Let's take the non-fee-shifting case.
You
23
represent people in which attorney's lien applies absent a fee
24
shifting case.
25
MR. FEINMAN:
Yes.
Right.
D23
11
1
THE COURT:
Let's take those first.
What then happens
2
in the case where your client gets $20,000 -- is entitled to
3
$20,000 --
4
MR. FEINMAN:
5
THE COURT:
-- you have a lien, and it's a
6
non-fee-shifting case.
7
MR. FEINMAN:
8
that the client --
9
THE COURT:
Right.
What happens?
Correct.
Well, the law of Virginia says
I actually want to -- just remember,
10
remember, Mr. Feinman, all I want you to tell me is what -- is
11
what you expect next.
12
requires.
13
I assume you expect whatever the law
Okay.
MR. FEINMAN:
But what I'm trying to tell you, Your
14
Honor, there's two different answers depending on the facts.
15
If the client discharges the plaintiff's attorney, there's one
16
thing that happens.
17
attorney, it's a different thing that happens.
18
19
20
THE COURT:
If the client doesn't discharge the
Let's assume further that you have not
been discharged.
MR. FEINMAN:
That I have not been discharged.
If I
21
have not been discharged, then what happens is, you know, in
22
the normal course the -- let's just say it's a car accident
23
case -- the insurance company will send me the agreed amount
24
that was settled and I will, with my client's approval, deposit
25
it in my client's trust account and disburse it according to my
D24
12
1
fee agreement with my client.
2
THE COURT:
3
MR. FEINMAN:
4
THE COURT:
That's what usually happens.
When you say they send you the check -Yes, sir.
-- are you saying that they make the check
5
payable to you?
6
Payable to your trust account?
7
to whom do they make the check payable?
8
Payable to you or your -- and your client?
MR. FEINMAN:
What do they make the check --
I would say in the vast majority of
9
cases it's payable to James B. Feinman and my client.
10
are a few cases where -- I had one last week where because that
11
particular client was very badly injured and he's going to need
12
a special needs trust, they sent the check to me, James B.
13
Feinman, for the benefit of that particular client.
14
15
THE COURT:
There
So --
You've answered that question now.
I have
another question.
16
MR. FEINMAN:
17
THE COURT:
Yes, sir.
Okay.
If the case (sic) goes to James B.
18
Feinman, payable to James B. Feinman, your procedure is, as I
19
understand it, you would, with your client's consent, deposit
20
-- and I assume the client's consent is something that's
21
achieved by the fee agreement that you have with your client.
22
Or, maybe subsequent.
23
MR. FEINMAN:
24
25
Or sometimes it's -Well, it starts with our agreement,
yeah, when the client retains me.
THE COURT:
It starts then.
Yeah, but doesn't the agreement provide --
D25
13
1
maybe it doesn't -- I'm now telling you what my agreements
2
provided -- that the client consents that any funds that you
3
receive in connection with the claim be deposited in the
4
attorney/client trust account.
5
MR. FEINMAN:
Well, my typical fee agreements don't
6
say that.
What typically happens in my case, if we agree on a
7
settlement, the client gives me permission to accept a proposed
8
-- an offer.
9
tell them:
10
my client trust account for five banking days before we can
11
disburse and then we can disburse.
12
and sign the check, you can do that.
13
permission over the phone to just sign it for you, I'd do that.
14
And that's what I do.
15
don't want to sign.
16
THE COURT:
And then when the money comes in, I call them.
The check's payable to you and me.
It has to go in
If you want to come up here
Or if you give me
That's what I do.
Fair enough.
I
98 percent of them
That's fine.
They don't
17
want to -- why drive down to the attorney's office, especially
18
in a defective Volkswagen, and sign.
19
account for so many days to make sure it clears, and then you
20
make a disbursement.
21
Now, question.
It goes into the trust
Got it.
Your fee, is that fee taken out of the
22
funds that Volkswagen has provided to you in terms of a
23
settlement?
24
MR. FEINMAN:
25
THE COURT:
Yes, sir.
Okay.
And did you have in these cases,
D26
14
1
these 400 cases, a standard fee?
2
MR. FEINMAN:
3
answer this truthfully.
In my arrangement --
Well, that's a good idea.
4
THE COURT:
5
MR. FEINMAN:
6
THE COURT:
7
Well, what my -- what my -- I can only
Right.
And my arrangement was --
Unless you want to spend a lot of time in
San Francisco, it's a good idea that you answer truthfully.
8
Go right ahead.
I'm being facetious.
9
MR. FEINMAN:
Go right ahead.
My agreement was that it was a
10
contingency fee agreement.
11
Volkswagen would pay my fees because of the fee shifting
12
statutes that we were proceeding under.
13
that I have had countless times.
14
THE COURT:
And if we were successful in court,
So that's a situation
I don't understand your answer.
Are you
15
saying that your fee agreement with your client, under the
16
terms and conditions of this particular type of representation,
17
was that your client -- you received $20,000 in my
18
hypothetical.
19
is:
20
not?
You put it in your trust account.
My question
Would you take your fees out of the $20,000, or would you
21
MR. FEINMAN:
22
THE COURT:
Yes, I would.
Okay, fine.
Now my next question is:
23
What -- you must have -- since it's a contingency case, I
24
assume it was -- I assume there was a percentage.
25
the typical percentage that you were entitled to under your fee
D27
And what was
15
1
agreement?
2
MR. FEINMAN:
Okay.
The typical arrangement was,
3
which is been approved by the Supreme Court of Virginia in
4
other cases -- I know you don't want to hear that but this was
5
the typical arrangement --
6
THE COURT:
No.
I'm delighted.
I'm not suggesting
7
you're doing anything unethical.
8
you're doing anything that's somehow contrary to some law out
9
there.
10
MR. FEINMAN:
I'm not suggesting that
The typical arrangement is one-third of
11
whatever is recovered, or my hourly rate times the hours
12
incurred, whichever of the two is greater.
13
I have that structure is because I --
14
15
THE COURT:
I understand.
And the reason why
You don't have to give me a
reason.
16
MR. FEINMAN:
17
THE COURT:
18
MR. FEINMAN:
19
THE COURT:
Okay, good.
Okay.
So in these cases --
Yes, sir.
-- is it your -- for the most part -- I'm
20
not talking about every single case of the 403 cases -- was it
21
your expectation at the time of the settlement that your fee
22
would be one-third of the recovery given to your client?
23
other words, that's another way of asking:
24
run-of-the-mill 403 cases, wouldn't the vast majority of those
25
cases entitle you, under law, to the fee of 33 and-a-third
D28
In
In the
16
1
percent of the recovery?
2
MR. FEINMAN:
I don't think so, and I can tell you
3
why.
It's because under Virginia law when a client, in effect,
4
discharges the lawyer and accepts a settlement outside of that
5
arrangement, then the fee is determined on what's called, as
6
you know, quantum meruit basis.
7
which is what happened here --
8
THE COURT:
9
MR. FEINMAN:
10
THE COURT:
11
MR. FEINMAN:
12
THE COURT:
So we go -- in that situation,
Oh, so tell me -Yes, sir.
That's helpful.
Yes, sir.
So it is your understanding of the 403
13
clients that you had, that you were discharged prior to the
14
settlement?
15
MR. FEINMAN:
I think that's fair.
I think that when
16
they elected to accept a settlement and not opt out, I think
17
that the essence of that is that I was discharged and they were
18
accepting the settlement that was offered, in effect, by the
19
plaintiffs' steering committee or by Volkswagen through the
20
plaintiffs' steering committee.
21
I mean, I think that's the only way I could characterize
22
it is that I was discharged.
23
THE COURT:
So your entitlement to your fees, then,
24
would not necessarily be a third of the recovery.
25
whatever your hourly rate was times the number of hours you
D29
It would be
17
1
devoted to that representation.
2
MR. FEINMAN:
I think that -- it would be on a quantum
3
meruit basis, which would include what Your Honor just said.
4
The evidence on determining what would be reasonable under a
5
quantum meruit basis would include what Your Honor just
6
described.
7
THE COURT:
And was that -- okay.
First of all, may I
8
ask, inquire, what is your hourly -- what was your hourly rate
9
that you negotiated with your client as of 2016?
10
11
MR. FEINMAN:
hour.
2015.
I believe it was $400 to $450 an
I'd have to look at it, just to be honest with you.
And was it --
12
THE COURT:
13
MR. FEINMAN:
14
THE COURT:
15
MR. FEINMAN:
16
THE COURT:
But it's right in there.
With 400 clients -Yes, sir.
-- was there sort of an average number of
17
hours that you spent with respect to one client?
18
we talking about ten hours?
19
the average.
20
21
24
25
We talking about 100 hours?
On
On the average.
MR. FEINMAN:
Well, you know, some of them talked a
lot.
22
23
I mean, are
THE COURT:
I understand.
You have to give me an
average.
MR. FEINMAN:
Well, Your Honor, I submitted that, and
it's all --
D30
18
I know it's all in the record, but I just
1
THE COURT:
2
don't have it in front of me.
You can refresh my recollection.
3
Maybe defense counsel knows.
I don't know.
4
MR. FEINMAN:
It was, you know -- a lot of the work
5
that I did was collective work which applied to all of them.
6
And then, obviously, I had individual work for individuals.
7
So, you know, I think it came out to somewhere between -- you
8
know, this is off the stop of my head -- somewhere between
9
$2,500 and $3,500 per client, something like that, on an hourly
10
basis.
That's, again, off the top of my head.
Okay.
11
THE COURT:
12
MR. FEINMAN:
13
14
Fair enough.
Which is considerably less than a
one-third of $20,000, if we're using that example.
THE COURT:
Right.
Right.
Now, I think that takes care of
15
the case of the non-fee-shifting -- non-fee-shifting claim.
16
And it may very well take care of the entirety of the case.
17
my question to you is:
18
maintain there was a fee shifting provision, would it be your
19
practice, or would it have been your practice, to nevertheless
20
take the quantum meruit basis of your entitlement from the
21
settlement?
22
So
Even in those cases in which you
I think the answer is "yes," but --
MR. FEINMAN:
What happens in that situation -- if we
23
don't go to court and go all the way through the process,
24
there's -- the defendant offers a settlement before that
25
happens -- what I do is I talk to my client and we reach an
D31
19
1
2
3
agreement on a fee.
If -- and in many cases what happens -- and I don't -- I'm
trying not to anger Your Honor --
4
5
THE COURT:
No, no, no.
You're not going to anger me.
Don't worry about that.
6
MR. FEINMAN:
Well, there's a case in Virginia that
7
says that on this type of arrangement, a fee-shifting
8
arrangement, it's the Lambert versus Sea Oats case, the Supreme
9
Court of Virginia held that no defendant can ask the
10
plaintiff's attorney the amount of their attorney's fees before
11
the case on the merits is resolved for the client.
12
do we determine the amount of the fees in a fee-shifting
13
situation.
14
15
16
Only then
So, you know, that's if we go all the way through the
court.
THE COURT:
No, but I'm not sure this answers my
17
question.
18
client, by the way, in this case, in these cases, would have a
19
different entitlement.
20
would be part of a group that we get 8,000, part of a group
21
that gets 5,000, part of a group that gets 20,000, depending on
22
how long they owned the product.
23
because damages are individualized.
24
25
You're -- in my hypothetical, client X -- each
Not necessarily different, but they
But that's not unusual
So you have 403 clients -- and more, actually -- but we're
only talking about the 403 clients.
D32
They come in.
You meet
20
1
with them.
2
$20,000.
And they discuss it with you.
And you advise them, I
3
assume.
That's what you're there for.
And they -- whatever
4
your advice was, and I'm not discussing that at this point --
5
whatever your advice was, they then discharged you because they
6
said:
Volkswagen has offered me in my case
I am taking the $20,000 from the class settlement.
You are discharged.
7
8
And they say:
That's the way you interpreted it.
Is that correct?
9
MR. FEINMAN:
Yeah.
What it boiled down to, with all
10
my clients -- I think I had 674 all together -- they either had
11
to opt -- as Your Honor knows, they either had to opt out and
12
remain my clients, or they didn't and they would be part of the
13
class and represented by the class counsel.
14
it was at that decision I was discharged.
15
to opt out, I was discharged.
Oh, certainly.
17
THE COURT:
18
MR. FEINMAN:
20
21
Thank you.
I'm sorry.
My mouth is just
-THE COURT:
No, no.
That's all right.
(Pause.)
Thank you.
22
MR. FEINMAN:
23
THE COURT:
24
only thing on my calendar.
25
If they decided not
Your Honor, may I get a cup of water, please?
16
19
So the way I saw
Sure.
MR. FEINMAN:
Thank you very much.
And take your time.
I love being here.
D33
You're the
It's fine, Your
21
1
2
3
Honor.
THE COURT:
We're all surprised, it's so nice.
Because it's been awfully wet in California --
4
MR. FEINMAN:
5
THE COURT:
6
7
That's good.
-- until now.
appreciate your coming out here.
But this is good.
And I
That's very nice of you.
So I think my question -- I have to go back because I'm
8
sort of losing my train of thought.
9
there is a, quote, "fee shifting --
10
MR. FEINMAN:
11
THE COURT:
But in those cases where
Yes, sir.
-- arrangement," in your view, did you
12
have any -- would you approach the payout from the settlement
13
any differently from those cases in which there was no fee
14
shifting?
15
You've described the fee-shifting arrangement.
Or you've
16
described the non-fee-shifting arrangement.
17
I understand how you would treat the $20,000 settlement any
18
differently.
19
same type of calculation in, quote, a "fee shifting case" --
Or putting it in another way, would you do the
20
MR. FEINMAN:
21
THE COURT:
22
But I don't think
Right.
-- in determining to what extent you would
pay some portion of the settlement --
23
MR. FEINMAN:
24
THE COURT:
25
MR. FEINMAN:
Right.
-- to you.
We're talking about a non-fee-shifting
D34
22
1
2
3
case now.
THE COURT:
No, no, no.
I've talked about the
non-fee-shifting.
4
MR. FEINMAN:
5
THE COURT:
Okay.
The non-fee-shifting case, my
6
understanding in simple terms --
7
MR. FEINMAN:
8
THE COURT:
9
MR. FEINMAN:
10
THE COURT:
Okay.
-- is that $20,000 comes in.
Right.
You have been -- quote, you have viewed
11
yourself as being constructively or actually discharged.
And
12
you would get the $20,000 under the normal procedure that you
13
anticipated.
14
number of hours you devoted for that client's representation.
You then would apply your hourly rate against the
15
MR. FEINMAN:
16
THE COURT:
Right.
And let's say it's -- in the typical case
17
you said it's sometimes between 2,500 and 3,500.
18
call it 3,000.
19
MR. FEINMAN:
20
THE COURT:
21
MR. FEINMAN:
22
THE COURT:
Let's just
In this case, Yes, sir.
Theoretical case.
Yes, sir.
Theoretical case.
Yes, in this case --
23
not theoretical in terms of what you believe your clients owed
24
you, but theoretical as to any particular client as on the
25
average -- you take $3,000 from 20,000.
D35
The client would get
23
1
17,000, you would get 3,000.
2
the non-fee-shifting case.
3
work the same way in the fee shifting case?
4
5
6
7
MR. FEINMAN:
And my question to you is:
I just have to back up because I got to
In the case that you just described, I was discharged.
that correct?
In the case I just described --
9
MR. FEINMAN:
10
THE COURT:
Yes, sir.
-- the client opted to remain as a member
of the class, which you interpreted to be a discharge --
12
MR. FEINMAN:
13
THE COURT:
14
MR. FEINMAN:
Discharge.
-- of you.
Of counsel.
All right.
In that case, what happens
15
in Virginia is that, you know, I make a demand on the
16
defendant.
Say, Hey, look you settled this case -Wait.
17
THE COURT:
18
MR. FEINMAN:
20
discharged.
$20,000 has been sent to you.
Oh, it wouldn't be sent to me if I was
That's what I'm saying.
THE COURT:
Well, wait a minute.
21
talking about the theoretical case.
22
it didn't happen this way.
23
MR. FEINMAN:
24
THE COURT:
25
Is
Or I was not?
THE COURT:
19
Does it
make sure I understand.
8
11
That's the way it would work in
that way.
Wait.
I'm now
The theoretical -- I know
Okay?
Okay.
Because of my orders, it didn't happen
But I'm asking you in your -- in the normal course
D36
24
1
of your -- of the type of representation you spent 33 years
2
doing --
3
MR. FEINMAN:
4
THE COURT:
Right.
Yes, sir.
-- the check for $20,000 goes to James B.
5
Feinman, Attorney at Law, and it may or may not include the
6
name of the client, and/or whatever it says.
But that's it.
7
Now I'm talking about in the theoretical case, would you
8
then take out the $3,000 from the $20,000 in both cases where
9
there is not only a non-fee-shifting arrangement, but there is
10
a fee shifting -- I mean, when I say "arrangement" --
11
non-fee-shifting statute versus a fee-shifting statute.
12
there be any difference?
13
14
And I've been discharged, is that
MR. FEINMAN:
correct?
Yeah.
You have been --
15
THE COURT:
16
MR. FEINMAN:
17
never get the check.
18
been discharged, the money's not coming to me.
19
represent that client.
20
discharged.
21
--
22
Okay.
I've been discharged.
If I've
I no longer
That doesn't happen, okay?
It doesn't come to me.
THE COURT:
I would
They would never send it to me.
I've been
What's left for me to do
Let's take the case -- I'll take it --
23
okay, fine.
24
haven't been discharged.
25
Would
That's fine.
MR. FEINMAN:
Let me take the case where you
All right.
D37
25
1
2
THE COURT:
You haven't been discharged.
comes to you.
3
MR. FEINMAN:
4
THE COURT:
5
MR. FEINMAN:
6
THE COURT:
Yes, sir.
And you put it in your trust account.
Yes, sir.
Is there any -- is there any calculation
7
as to -- oh.
8
I'm wrong here.
9
you haven't been discharged --
10
MR. FEINMAN:
11
THE COURT:
12
you're entitled to one-third.
13
MR. FEINMAN:
14
$20,000
Well, you take the less of -- well, wait.
This is helpful.
I am wrong.
Okay.
Maybe
So where
Right.
-- your view is under your fee agreement
Well, what happens -- I'll tell you what
happens.
My real question is --
15
THE COURT:
16
MR. FEINMAN:
17
THE COURT:
Yes, sir.
-- is there a difference between the two
18
cases where there's a fee shifting statute and where there's
19
not a fee shifting statute?
20
MR. FEINMAN:
21
THE COURT:
22
Yes.
And you haven't been discharged and you
got the $20,000.
23
MR. FEINMAN:
24
THE COURT:
25
your fee agreement.
Yes.
And you're entitled to the greater, under
Of the greater of the --
D38
26
1
MR. FEINMAN:
There's not a fee shifting statute, then
2
my contract calls for a percentage.
3
cases, primarily.
4
5
I do --
THE COURT:
the fee shifting.
And I do three different
Okay.
Wait.
I got that.
Now let's have
There's a fee shifting --
6
MR. FEINMAN:
7
THE COURT:
8
MR. FEINMAN:
Yes, sir.
-- statute.
I'll tell you how that works.
But let
9
me just talk about in the case where there's no fee shifting
10
statute, I have a percentage, and we reach a settlement.
11
haven't been discharged.
I
12
Then when I explain the offer to my client, I make sure
13
that they again understand, you know, the offer is 20,000, my
14
fee will be -- I'm pretty good at calculating these -- I think
15
it's $6,666.66.
16
calculator.
17
money comes in, I disburse that and that's all agreed.
18
that situation.
19
But I would have to check that with a
According to our fee agreement.
Then when the
That's
Now in the same situation, I haven't been discharged, and
20
there's a fee-shifting statute, and the defendant offers a
21
settlement before we complete -- you know, I go all the way
22
through the process.
23
There's two different avenues that can happen, you know.
24
25
There are two things that happen.
Sometimes I tell the defendant that, Okay, my client will
accept $20,000, but they have a fee shifting agreement, you
D39
27
1
have to pay my fees in addition to that.
And after we resolve
2
the client's case, I will submit my bill.
You have to
3
stipulate that my client's the prevailing party.
4
agree on my bill, then we'll agree on it.
5
submit it to the court for a resolution.
And if we can
If we can't, we
6
That's what happens.
7
So then sometimes -- in most cases -- like, I do a whole
8
lot of lemon law cases.
9
we work it out.
10
the court to resolve that.
11
have several cases like that over 33 years.
12
opinions.
13
Ford, Chrysler, they agree to that and
Very rarely do we have to go to court to get
Although we have, and it's -- I
Anyway, sometimes the defendant will say, Look, we don't
14
want to do that.
15
out how to resolve it.
16
client and see if we can work out something.
17
agree to that, then it's worked out.
18
agree to that, there's no settlement.
19
They're written
It's one number.
You and your client figure
So then in that situation, I talk to my
If my client will
If my client doesn't
Remember, I haven't been discharged.
I'm still
20
representing.
So that's all in the process of negotiation.
So
21
if we can't work out either one of those scenarios, then the
22
case doesn't settle.
23
scenarios, then the case settles.
24
knows what everybody's doing and we're all on the same page and
25
that happens on a weekly basis.
But if we can work out one of those two
D40
And we're all -- everybody
28
1
2
THE COURT:
page.
I'm not quite sure you're all on the same
But at least you're on the same page as your client.
Right.
And with the defendant.
3
MR. FEINMAN:
4
know how much they're paying --
5
6
THE COURT:
No, they don't.
In other
words -- well, in the last case that you mentioned --
7
MR. FEINMAN:
8
THE COURT:
9
They don't.
They
Yes, sir.
-- the one in which you and your client
are unable to agree as to a split --
10
MR. FEINMAN:
11
THE COURT:
Right.
-- Volkswagen -- we'll use Volkswagen as
12
an example.
Says, Look, I'm going to pay $20,000.
It's up to
13
you and your client to decide how to spend that, how to
14
allocate that.
15
an agreement.
And you and your client are unable to arrive at
16
MR. FEINMAN:
17
THE COURT:
18
MR. FEINMAN:
19
THE COURT:
Right.
That case doesn't settle.
In that case, there is no settlement.
Right.
We keep fighting.
All right.
But, you see, Volkswagen in
20
that particular case has offered $20,000, and not $22,000, or
21
not some other sum.
22
according to the way you want to do it or the way your client
23
wants to do it.
And in that case, there is no settlement.
24
understand that.
That's accurate, right?
25
Or not offered to split the $20,000 either
MR. FEINMAN:
Yes, sir.
D41
I
29
Let me just think a minute.
1
THE COURT:
2
MR. FEINMAN:
3
THE COURT:
Sure.
Okay.
I think that covers that category
4
of questions.
5
now relates to what you did.
6
MR. FEINMAN:
7
THE COURT:
8
MR. FEINMAN:
9
THE COURT:
10
say the beginning.
11
litigation.
12
through the final approval of the settlement.
13
action settlement.
14
15
I have a different category of questions which
Okay?
Yes, sir.
I'm out of the theoretical.
Okay.
Now I'm going back to -- I don't want to
I'm going back to the course of the
Up to the -- well, at least I want to cover
MR. FEINMAN:
Okay?
The class
I think that's October of 2016.
Is that
right?
16
THE COURT:
Yes.
Okay.
And you seem to have the facts very
17
well in hand.
As I understand it -- now at this point,
18
you're representing 600 or 700 -- roughly six-plus clients.
19
MR. FEINMAN:
20
THE COURT:
Yes, sir.
Okay.
And you have -- and there is a
21
class action.
22
action.
23
to get into this.
24
court, federal court, so forth.
25
And you have received notice of the class
I don't know to what extent -- and I'm not sure I need
You filed lawsuits, you know, in state
But let's assume -- I assume you did file some actions.
D42
30
1
MR. FEINMAN:
2
THE COURT:
3
A lot.
Yes, sir.
You filed a lot of actions.
And they were
filed -- were they filed exclusively in state court?
4
MR. FEINMAN:
Exclusively in state court.
5
know, my clients are Virginians, and Volkswagen is
6
headquartered in Fairfax, Virginia.
7
did litigate on behalf of all these people -THE COURT:
9
just saying where you filed.
10
Virginia.
11
12
MR. FEINMAN:
15
I'm not there yet.
We
I'm
You filed in state court in
Right.
And they were removed to federal
court.
13
14
There's no diversity.
Wait, wait, wait.
8
As you
THE COURT:
And Volkswagen removed them to federal
court.
MR. FEINMAN:
And I made a motion to remand and was
16
successful in front of Judge Conrad in the Western District of
17
Virginia.
Okay.
18
THE COURT:
19
MR. FEINMAN:
20
THE COURT:
21
MR. FEINMAN:
22
THE COURT:
23
MR. FEINMAN:
24
25
And --
May of 2016.
May of 2016 -Yes, sir.
-- they were remanded.
All of them?
Well, Your Honor, what happened was it
was kind of like -- let's see how to explain this.
I think if my memory's correct, I think I had three
D43
31
1
separate suits that they removed.
And each one of those suits
2
contained a number of plaintiffs that had been joined together.
3
And they removed those three, and so I made my motion to
4
remand.
5
And what we did was we made -- I don't know what you call
6
it -- an agreement or an understanding that we would get Judge
7
Conrad's ruling and that would be -- that would, you know, they
8
didn't remove any more, and all the ones that had been removed
9
were sent back.
10
ruled.
11
think Your Honor made, not too long ago, the same ruling.
12
13
So no more were removed after Judge Conrad
There was no federal question jurisdiction.
THE COURT:
And I
Okay, now -- well, let's leave my rulings
aside just for a minute.
14
MR. FEINMAN:
15
THE COURT:
Yes, sir.
So notwithstanding whether the case was
16
pending in state court in Virginia or federal court in
17
Virginia, your clients were designated as a member of a class.
18
19
MR. FEINMAN:
Well, not at that point in time.
sir.
Well, I'm now talking about when -- you
20
THE COURT:
21
received notice of the MDL.
22
I'm sorry.
You received --
When was the notice sent to -- I'm now asking Volkswagen.
23
When was notice sent to the putative members of a class?
24
it sent before the class certification?
25
No,
MS. NELLES:
Right.
It was --
D44
Was
How does that work?
32
It was afterwards.
1
MR. FEINMAN:
2
THE COURT:
Let me ask Volkswagen.
3
MS. NELLES:
Your Honor, notice was sent after
4
preliminary approval but before final approval.
5
summer of 2016.
So in the
So we have the summer of 2016.
6
THE COURT:
7
MR. FEINMAN:
8
THE COURT:
Yes, sir.
And in the summer of 2016 your clients, or
9
you, received notice of that -- a preliminary approval of a
10
settlement which could impact your clients was approved by this
11
court.
12
MR. FEINMAN:
It was -- I believe -- of course, we
13
have to go back and check the record.
14
here, I believe it was late June there was --
15
16
THE COURT:
Late June.
But going from memory
Would be early summer.
Okay.
At any rate, that was the notice that went out.
17
MR. FEINMAN:
I think the proposed settlement became a
18
matter of public record because it was filed in the court.
19
don't think any notice on that went out until well after that.
20
I mean, I'm going to say August, but we would have to check the
21
record.
22
The notice to my client -THE COURT:
Volkswagen -- and I'm not sure dates are
23
critical here, but --
24
MR. FEINMAN:
25
I
I knew somewhere in the middle -- mid
summer of 2016 -- that there was a proposed settlement.
D45
There
33
1
was an opt-out deadline.
2
September 18 or 12, or something.
3
THE COURT:
I'm going to try to say it was
That does sound right.
But the proposed
4
settlement that went out that you received notice, however, you
5
know, that there was a preliminary approval of a settlement --
6
MR. FEINMAN:
7
THE COURT:
8
MR. FEINMAN:
Yes.
-- and you received -That didn't happen until September, I
9
don't think.
10
approval of the settlement until September, is my memory.
11
is all a matter of record.
12
THE COURT:
I understand.
13
MS. NELLES:
I believe it was July of 2016 was
14
I don't think Your Honor made a preliminary
preliminarily approved.
You're quite right.
15
THE COURT:
16
MR. FEINMAN:
17
THE COURT:
18
MR. FEINMAN:
19
THE COURT:
Okay.
It's all a matter of record.
Yes.
I'm not going to recreate a record.
20
just assume Volkswagen's recollection is correct.
21
consistent with your --
22
MR. FEINMAN:
23
September, obviously.
24
25
This
THE COURT:
Let's
And that's
It's sometime between June and
Yeah, I'll agree.
And in that notice of preliminary approval
there was, in fact, a disclosure of the terms and conditions of
D46
34
1
the settlement.
Is that correct?
2
MR. FEINMAN:
3
THE COURT:
4
And my question to you is once you
received notice of the terms of the settlement --
5
MR. FEINMAN:
6
THE COURT:
7
I think so.
Yes, Your Honor.
-- did you take any action on your
client's behalf with respect to that proposed settlement?
Yes.
8
MR. FEINMAN:
9
THE COURT:
10
MR. FEINMAN:
11
with countless numbers of them.
12
back and see all this.
13
wrote them and explained to them what the situation was.
14
talked to countless numbers of them explaining, you know, what
15
they would receive under the proposed settlement and what they
16
wouldn't.
17
they could make a rational decision about what they wanted to
18
do.
19
settlement.
20
as well.
21
22
Okay.
I did several things.
I discussed it
I wrote them.
I have to go
It's all a matter of record.
I think I
We
You know, what we thought we could accomplish so
And I did that.
I also filed objections to the proposed
And we did that.
THE COURT:
Okay.
That's all a matter of record,
So your objections to the proposed
settlement were filed with this Court, is that correct?
23
MR. FEINMAN:
24
THE COURT:
25
What did you do?
Yes, sir.
Certainly.
In the -- and I don't have them right in
front of me right now, but you can refresh my recollection.
D47
35
1
Did your objections to the proposed settlement address the
2
question of the release?
3
4
5
6
MR. FEINMAN:
In some ways it did.
In some ways it
didn't.
THE COURT:
Tell me -- I don't want to know about the
ways it didn't.
7
MR. FEINMAN:
8
THE COURT:
Okay.
But I want you to identify for me your
9
objections that you filed that dealt with the question of the
10
terms of the release.
11
MR. FEINMAN:
It primarily focused on our position,
12
which is still our position today, that the vehicles are
13
illegal -- illegally imported, illegal to sell, and illegal to
14
drive, and that the release was going to terminate Volkswagen's
15
liability while the settlement called for all laws to be
16
enforced.
17
So that put my clients, as well as other clients, in the
18
position of the laws would be enforced against them at some
19
later time because the settlement did not require the vehicles
20
to be removed from use.
21
against them, Volkswagen's liability would already be
22
terminated and that would be an unjust proposition.
23
was the focus of our objection to the release.
24
THE COURT:
25
specific questions.
And that when the law was enforced
Okay.
And that
Now I'd like to ask you more
D48
36
1
MR. FEINMAN:
2
THE COURT:
Yes, sir.
Paragraph 9.3 of the settlement agreement
3
includes the following release of claims.
4
before you?
5
MR. FEINMAN:
6
THE COURT:
7
MR. FEINMAN:
8
Do you have it
I will.
Okay.
Let's see.
I'm getting there.
Yes, sir.
I have it in front of me.
And it says:
In consideration for the
(Pause.)
9
MR. FEINMAN:
10
THE COURT:
11
settlement class members -- and I'm going to skip words because
12
it's just too long -- on behalf of themselves and attorneys who
13
may claim through or under them any and all claims that have
14
arisen out of the 2.0-liter TDI matter, without limitation, any
15
claims for liens, injunctive relief, attorneys, litigation fees
16
or costs, other than fees and costs awarded by the Court in
17
connection with this settlement.
18
It's a release of those claims.
19
My question to you is:
In your objection that you filed
20
with the Court, did you object to any of the language that is
21
found in 9.3 of the class release?
22
23
MR. FEINMAN:
you want me to take awhile, I will.
24
25
The simple answer to that is "no."
THE COURT:
No.
But the answer is "no."
I'm not going to ask you why you
didn't.
D49
If
37
1
MR. FEINMAN:
2
THE COURT:
3
MR. FEINMAN:
4
THE COURT:
Okay.
I'm just going to ask you whether you did.
No, I didn't.
Okay.
All right.
Now, that release was
5
included in your understanding, was it not, in the final
6
approval of the class settlement?
7
MR. FEINMAN:
8
THE COURT:
That's -- yes.
Okay.
That's my understanding.
And prior to -- or, going to --
9
coincidental with this period of time, your clients decided to
10
remain members of the class.
11
MR. FEINMAN:
12
opt-out date, that's correct.
13
THE COURT:
14
MR. FEINMAN:
15
THE COURT:
16
MR. FEINMAN:
17
THE COURT:
18
Well, if they didn't opt out by the
My memory --
And they did so after consulting with you.
Most did.
Some did not.
I can't say 100 percent of the 403 did.
Fair enough.
Sure.
But a number of them
did.
19
MR. FEINMAN:
20
THE COURT:
Many, many.
Many, many.
And I don't know -- I don't
21
know that I need to get into the advice as to whether or not
22
you told them "take it," "don't take it," but 400 took it and
23
200 didn't.
Or, 300 didn't.
24
MR. FEINMAN:
25
THE COURT:
Or whatever that number is.
I think I had 274 that did not.
Okay.
So you had roughly two-thirds -- 60
D50
38
1
percent, 55 percent, 60 percent of your clients decided to take
2
it.
3
MR. FEINMAN:
4
THE COURT:
5
6
That's correct.
All right.
As to the clients that took
it, they have been compensated, is that correct, by Volkswagen?
MR. FEINMAN:
You know, after the opt out, after they
7
did not opt out, I considered myself discharged.
8
appointed the plaintiffs' steering committee to represent them.
9
I considered myself discharged.
Okay.
10
THE COURT:
11
MR. FEINMAN:
12
really know.
The Court had
And what happened after that, I don't
I mean -Okay.
13
THE COURT:
14
MR. FEINMAN:
15
THE COURT:
Now my next question is --
Yes, sir.
-- did you advise Volkswagen subsequent to
16
the period of time that the clients either opted in -- I mean,
17
either opted out or didn't, that Volkswagen would owe you some
18
percentage or some amount of money under your agreement and the
19
laws of the state of Virginia with respect to the claim?
20
you advise Volkswagen of that fact?
21
22
23
24
25
MR. FEINMAN:
Did
I had written them before putting them
on notice, which is what the law of Virginia requires.
THE COURT:
That was before the settlement had been
achieved.
MR. FEINMAN:
That's correct.
D51
39
1
THE COURT:
Now I'm asking you, at any time during the
2
point of time that there was preliminary approval of the class,
3
to final approval of the class, did you advise Volkswagen that
4
notwithstanding that fee settlement agreement you would be
5
looking to Volkswagen to compensate them for -- to satisfy the
6
lien that you had perfected?
7
in that period of time?
8
MR. FEINMAN:
9
THE COURT:
10
MR. FEINMAN:
Did you advise them of that fact
I don't believe so.
Okay.
At that period of time, I don't believe
11
I was really having, you know -- I got to think back on this.
12
I think the only communication that I had with Volkswagen
13
counsel at that time were local Virginia counsel.
14
think I had started any communication or correspondence with
15
their New York counsel at that time that I can remember.
16
But to answer your question, no, I don't think I did.
17
18
THE COURT:
Okay.
All right.
Let me see what else I
have.
19
20
I don't
MR. FEINMAN:
May I step to get some more water, Your
Honor?
21
THE COURT:
Yes.
You know what I'm going to do?
22
going to take a five-minute recess then I'll come back.
23
minutes.
24
(Recess taken at 10:46 a.m.)
25
(Proceedings resumed at 10:52 a.m.).
D52
I'm
Five
40
1
THE COURT:
2
parties are present.
Okay.
Let me -- let the record show
3
Let me come back to some earlier questions that I asked.
4
As I understand your position, is that it was your view
5
that when the client took the position that they wanted to
6
remain a member of the class, you were effectively -- you
7
viewed it as an effective discharge against you.
8
MR. FEINMAN:
My understanding was that, Your Honor,
9
this Court, had appointed the plaintiffs' steering committee to
10
represent the class.
11
to either continue in the class and be represented by the
12
plaintiffs' steering committee, or to opt out and be
13
represented by me.
14
THE COURT:
15
MR. FEINMAN:
And the people in the class had a choice
Right.
In my case.
In my clients' case.
So
16
when those 403 clients that we're here on today in September of
17
2016 did not exercise their right to opt out, they were
18
exercising their right to remain in the class and be
19
represented by the plaintiffs' steering committee which Your
20
Honor had appointed to do.
21
point, I was no longer -- I considered myself discharged at
22
that point in those 403 cases.
23
THE COURT:
To represent them.
So at that
And as such, you would not accept or
24
receive -- maybe it's "receive," I don't know whether "accept"
25
-- accept or receive the funds of your clients' entitlement to
D53
41
1
the settlement.
2
MR. FEINMAN:
I did not anticipate doing that, no.
3
didn't think that was going to happen.
4
to have to enforce my lien, the way we do it in Virginia, in
5
those circumstances.
6
THE COURT:
7
MR. FEINMAN:
I
I thought I was going
Which is what I've done.
Now you have a lien against the recovery.
The lien is, the way the statute's
8
worded, is on the cause of action.
9
that occurs after the defendant is put on notice in the form
10
required by the statute, that any settlement after that is not
11
effective against that cause of action.
12
collect their lien from the defendant on a quantum meruit basis
13
after he's been discharged.
14
California, I think it's the same law in New York.
15
THE COURT:
And that any settlement
The attorney may still
And I think that's the same law in
And as I understand it historically, or in
16
this case, you have actually asserted a claim against -- you
17
asserted a claim against Volkswagen for -- we'll say for your
18
quantum meruit representation of a consumer, or a member of the
19
class.
20
MR. FEINMAN:
21
THE COURT:
22
MR. FEINMAN:
23
24
25
That's the lawsuit that I filed --
In Virginia.
-- in late December in Virginia state
court.
THE COURT:
And in connection with that lawsuit who
were the parties, other than Volkswagen?
D54
42
1
MR. FEINMAN:
2
THE COURT:
3
MR. FEINMAN:
4
THE COURT:
5
I mean, other than yourself, obviously.
That was it.
That was it.
My question is, have you sued your
clients?
6
MR. FEINMAN:
7
THE COURT:
8
Well, I was the plaintiff.
Negative.
No, sir.
I have not.
So you haven't asserted any claim against
your clients.
9
MR. FEINMAN:
10
THE COURT:
Correct.
But it is your view, or is it, that your
11
clients owe you some portion of -- that they owe you for the
12
quantum meruit of your claim?
13
MR. FEINMAN:
No.
No.
That is not my view.
14
believe that's the law of Virginia.
15
owes me my fee.
I believe that Volkswagen
Do your clients owe you the fee?
16
THE COURT:
17
MR. FEINMAN:
No.
I don't believe in this situation
18
my clients owe me a fee in this situation.
19
of Virginia, sir.
20
THE COURT:
I don't
I'm just asking you.
That's not the law
So they don't owe
21
you the fee; the fee is exclusively the responsibility of
22
Volkswagen under the laws of Virginia.
23
MR. FEINMAN:
24
THE COURT:
25
In this factual situation, yes, sir.
And so a client who has been discharged
who accepts the fee --
D55
43
1
2
MR. FEINMAN:
Client has been
discharged.
3
4
I don't follow you.
THE COURT:
Your client who has discharged you.
Sorry.
Right.
5
MR. FEINMAN:
6
THE COURT:
7
MR. FEINMAN:
Yes, sir.
8
THE WITNESS:
Thereby obviates his -- his or her --
9
10
11
By remaining a member of the class.
responsibility to pay you any funds.
MR. FEINMAN:
Well, I think at that point in time it's
up in the air because the settlement hasn't been approved.
No.
12
THE COURT:
13
MR. FEINMAN:
After approval.
Yeah.
After approval.
The way I see
14
it, a settlement has been reached between the defendant,
15
Volkswagen, and my former client who's now represented by the
16
plaintiffs' steering committee.
17
18
19
THE COURT:
And that former client does not owe you
any money.
MR. FEINMAN:
At that point in time when the
20
settlement funds are paid directly to my client, the way I
21
understand it under Virginia law, that the defendant does so at
22
their own peril.
23
24
25
THE COURT:
No.
My question is, does your client owe
you any money?
MR. FEINMAN:
Well, Your Honor, I don't know the exact
D56
44
1
answer to that because we never go against the client.
2
always go against the defendant who has, under the law, the
3
duty to protect the lien.
4
of any case in Virginia where the lien was enforced against a
5
client.
6
not aware of those.
7
enforced against the defendant.
8
9
A former client.
THE COURT:
against the client for any of these funds.
11
THE COURT:
12
MR. FEINMAN:
13
THE COURT:
16
17
18
There may have been a case, but I'm
And it was not your intention to go
MR. FEINMAN:
15
I'm not aware
I'm aware of many cases where it's
10
14
So that's what we do.
We
That's correct.
Okay.
I don't think the law requires me to.
Okay, Mr. Feinman.
I do want -- we've been going for an hour.
I do want to
hear briefly from Volkswagen as to what their position is.
MR. FEINMAN:
your questions.
All right.
Your Honor.
I just answered
I did want to present --
THE COURT:
You've also filed your motion and briefs.
19
So it's not like I'm unaware of your position.
20
haven't talked about your position as you wanted perhaps to
21
talk about your position, but I read through your position.
22
read through Volkswagen's opposition.
23
number of questions.
And it took an hour to get -- I mean, you
24
were very responsive.
Please, don't think that I don't
25
think -- you were unprofessional.
D57
I know we
I
I had, as a result, a
You were responsive.
You
45
1
enlightened -- you indicated to the Court what your responses
2
were.
3
Volkswagen.
I appreciate it.
4
MR. FEINMAN:
I want to hear briefly from
Yes, sir, Your Honor.
And if I may,
5
given that it is their motion, I would like the opportunity to
6
respond.
7
THE COURT:
Sure.
Okay.
Briefly.
8
MS. NELLES:
Thank you, Your Honor.
Sharon Nelles
9
from Sullivan & Cromwell on behalf of Volkswagen Group of
10
America.
11
It's clear the Court has read the papers on both sides and
12
has an appreciation for what the issues are here today.
I'm
13
happy to stand on those papers or answer any questions or
14
anything I can do that would be helpful.
15
THE COURT:
I have one question.
16
MS. NELLES:
Sure.
17
THE COURT:
Was it, in your opinion --
18
MS. NELLES:
Yes.
19
THE COURT:
-- having negotiated for many months, in
20
intensive negotiations in order to achieve a settlement, would
21
a settlement have been achieved if in fact Volkswagen found
22
itself liable for attorney's fees in addition to those that
23
were given to class counsel in connection with this matter?
24
both class counsel and to counsel who contributed to the common
25
benefit.
Would a settlement have been achieved?
D58
To
46
1
Yes.
MS. NELLES:
Your Honor, I think if it had been
2
understood or if it had been such that the release that
3
prohibited such claims was unenforceable, not only would a
4
settlement not have been achieved, any potential settlement, if
5
it was turned out to be wrong in the interpretation, it would
6
be frankly utter chaos.
7
court order which prohibits pursuing individualized claims for
8
fees against a defendant after a settlement where fees are
9
limited to those that are authorized by this Court would put
10
not only this particular settlement in jeopardy, but I think
11
clearly any national federal settlement in jeopardy.
12
13
14
THE COURT:
To have a situation where a federal
Okay.
Thank you, Ms. Nelles.
Now invite Mr. Feinman to respond to that argument.
MR. FEINMAN:
Well, Your Honor, I would respond
15
respectfully by saying that that question and that answer is
16
speculative at this point.
17
you know, a settlement in these circumstances does not have the
18
power or the authority to destroy a property right of mine.
19
Like I said, when the opt-out date passed, and 403 of my
20
clients did not exercise the right to opt out, which is the
21
same thing as exercising the right to stay in and to be
22
represented by the plaintiffs' steering committee, I was
23
discharged at that point.
And I would further assert that,
That was in September.
24
When Your Honor approved this release in October, I was no
25
longer their attorney because you had appointed the plaintiffs'
D59
47
1
steering committee to be their attorney, not me.
2
chosen to go with that.
And they had
Then you approved the settlement, and then the settlement
3
4
happened according to however the money changed hands after
5
that.
6
7
THE COURT:
You know, I have a recollection.
Let me
just -- you said something that triggered a recollection.
8
My recollection is -- and I could be wrong because a lot
9
has happened -- that somehow I extended the time for the opt
10
outs so that the opt outs or opt ins, or however you want to
11
call it --
12
MR. FEINMAN:
13
THE COURT:
I understand.
-- were aware of the proposed fee
14
arrangement and how it would be paid.
15
-- I did so, and I did so in an order, I did so because my
16
concern was that while the fees would not be paid out of the
17
settlement, in order to determine over what Volkswagen's
18
overall exposure was -- that is, they said, We would be willing
19
to pay X amount of dollars, I don't know, or fees, or however
20
it was characterized -- a class member should know that in
21
order to make an informed decision as to whether or not to opt
22
out.
23
I did so -- let me just
So I think I extended the opt-out period.
24
Ms. Nelles if my recollection as --
25
You're shaking your head.
Now I'm asking
But let me just -- the record
D60
48
1
is the record.
2
MR. FEINMAN:
3
THE COURT:
4
5
6
me I'm off base.
Right.
But if I'm off base, Ms. Nelles will tell
Go ahead.
MR. FEINMAN:
I'll just say.
My shaking my head means
I don't remember what Your Honor's talking about.
Well, okay.
I do.
7
THE COURT:
8
MR. FEINMAN:
9
THE COURT:
But I could be wrong.
10
MS. NELLES:
Yes, Your Honor.
I don't.
You're not wrong.
You
11
did extend the opt-out period by, I believe, a matter of ten
12
days to maybe two weeks.
13
opportunity for objections was going to expire you required
14
Volkswagen to put a statement -- both the PSC and Volkswagen to
15
put a statement on the record regarding how they were going to
16
determine fees.
17
the maximum amount they would be seeking.
And during that period and before the
And initially the PSC did put in the record
Right.
18
THE COURT:
19
MR. FEINMAN:
I remember that.
And that had to do
20
with the fees of the plaintiffs' steering committee.
21
remember that.
22
regarding non-plaintiff steering committee lawyers.
I do
But I don't remember anything about fees
23
THE COURT:
I'm not saying that I did.
24
MS. NELLES:
Your Honor?
25
MR. FEINMAN:
That's what I thought you were referring
D61
49
1
to.
And I don't remember that.
2
referred to.
3
committee.
I do remember what she just
That dealt with the plaintiffs' steering
THE COURT:
Counsel referred to extending the opt-out
6
MS. NELLES:
Your Honor, if I may.
7
THE COURT:
Yes.
8
MS. NELLES:
There was a course of events --
9
Let me come up.
10
THE COURT:
Sure.
11
MS. NELLES:
Course of events which I think might be
4
5
period.
Thank you.
12
coming a little bit confused because of so much that happened
13
so quickly.
14
Is that you may recall that after that -- after the
15
request for fees came in, several attorneys did in fact file
16
notices of liens against any proceeds to class members.
17
what happened then is the Court entered a temporary order --
18
entered an order temporarily enjoining payment.
No, I recall that.
I recall that.
And
I'm
19
THE COURT:
20
sure everybody recalls that.
21
MS. NELLES:
Yes.
22
THE COURT:
But that was after final approval.
23
MR. FEINMAN:
I think so.
24
MS. NELLES:
It was following final approval and prior
25
to the award of fees.
D62
50
1
2
3
4
THE COURT:
Right.
Okay.
Anything else, Mr. Feinman?
MR. FEINMAN:
Well, yes, Your Honor.
I think there
was an objection made prior to final approval.
Really?
5
THE COURT:
6
MR. FEINMAN:
That -- I think it's in your order that
7
you discussed it that there was objection made that said this
8
makes no provision for payment of private attorneys.
9
Honor wrote at that time that -- if I can -- this quote:
10
settlement is silent as to Volkswagen's obligations to pay the
11
fees and costs for attorneys other than class counsel or
12
attorneys class counsel designate to perform work in connection
13
with this litigation."
14
And Your
"The
Close quote.
I think that the Court got it right then that the
15
settlement was silent as to that, and it's still silent today.
16
Now they want to make the settlement speak volumes as to
17
Volkswagen's obligations to pay the fees and costs, but the
18
contemporaneous ruling and construction that Your Honor made at
19
that time was correct.
20
21
22
THE COURT:
And then --
It depends on what's meant by "is silent."
But go ahead.
MR. FEINMAN:
Okay.
What I'm saying, Your Honor, is
23
that Volkswagen's position is incorrect.
Because my attorney's
24
fee lien was a perfected property right.
And by its very
25
nature, a settlement between the defendant and the plaintiff
D63
51
1
who discharges his former lawyer does not release the lien.
2
The plaintiff cannot release the attorney's lien.
3
time Your Honor approved the settlement and the release that
4
went with it, I was no longer the people in the class's
5
attorney.
6
had no common interest at that point in time.
7
have released my fees.
I had been discharged.
At the
They had no interest -- we
They could not
8
The class representatives and the class got a great
9
benefit out of approving that class action settlement, and I
10
got nothing out of it.
11
they didn't own my claim.
12
law of Virginia.
13
They did not -- at that point in time,
I owned my claim, according to the
They had no right to resolve it.
I think that's what the Hansberry case says.
I think it's
14
a fundamental principle of class action litigation that class
15
representatives can only release claims they possess in common
16
with the class.
17
We provide you Supreme Court citation on that.
My state law attorney fee lien is my claim, and only my
18
claim.
19
release it.
20
all together when compared to the factual predicate that the
21
class claims are based on.
22
No class representative had authority or power to
My claim is based on different factual predicate
To do what Volkswagen wants this Court to do would be to
23
destroy a very valuable property right given to me by state law
24
in a manner contrary to well-settled law.
25
There's nothing about my attorney fee lien that affects
D64
52
1
the settlement in any way.
The settlement says Volkswagen is
2
not entitled to any credit for the amounts it paid the class
3
and cannot recover from the class any attorney's fees that they
4
have to pay.
5
court to enjoin the proceedings in the Virginia state court,
6
which is in essence what's happening.
There's no legitimate reason for this federal
7
Congress has not authorized such an injunction.
I don't
8
believe it's necessary in aid of this Court's jurisdiction.
9
don't believe it's necessary to protect or effectuate this
10
Court's judgment.
11
an injunction.
I
All doubts are resolved by not issuing such
12
There's no strong and unequivocal showing here that this
13
Court's already ruled the settlement is silent regard paying
14
nonclass counsel.
15
believe that's a correct and clear ruling.
16
I don't believe that's even equivocal.
I
The Hansberry case that we provided to the Court provided
17
to the Court states, quote, "One is not bound by judgment in
18
personam in a litigation in which he is not designated as a
19
party or to which he has not been made a party by service of
20
process.
21
entitled to the full faith and credit which the Constitution
22
and statutes of the United States prescribe."
23
A judgment rendered in such circumstances is not
Close quote.
It goes on to say that to allow such release to be made by
24
representatives, quote, "whose substantial interests are not
25
necessarily or probably the same as those they are deemed to
D65
53
1
represent, does not afford that protection to absent parties
2
which due process requires.
3
more satisfies the requirements of due process than a trial by
4
a judicial officer who is in such situation that he may have an
5
interest in the outcome of the litigation and conflict in the
6
litigants."
The representation in this case no
Close quote.
7
What the Supreme Court was saying is that to let a class
8
representative release claims they do not possess or own when
9
they get something in return is just a conflict of interest
10
that we will not allow.
11
I think that the record here shows Volkswagen has put me
12
through years and years of delay and expense to prevent me from
13
recovering the pay the public policy of Virginia says I'm
14
entitled to recover.
15
I beg this Honorable Court to end this today and deny
16
Volkswagen's motion to enforce a settlement agreement against
17
me for the reasons stated in the written submissions and stated
18
today.
19
Your Honor, they have -- no class had any authority to
20
destroy my property right given to me by state law.
21
entitled to collect it, and that's what I've tried to do.
22
been respectful of this Court in every way that I know how.
23
I'm not interested -- not interested -- I'll do everything I
24
can not to violate any order of this Court or any other court.
25
But, you know, I'm entitled under Virginia law to do what I'm
D66
And I'm
I've
54
1
doing.
And I ask that this Court deny their motion which is
2
geared solely to stop that.
3
THE COURT:
4
MR. FEINMAN:
5
THE COURT:
I don't.
6
MS. NELLES:
Certainly, Your Honor.
7
THE COURT:
Okay.
Okay.
Submitted?
Unless Your Honor has other questions.
Submitted?
So it's the ruling of this Court
8
that Volkswagen has been released from the claim submitted by
9
Mr. Feinman.
10
That, for several reasons.
Number one is that I believe that the release is valid and
11
it applies to Mr. Feinman's claim.
And number two, it's
12
abundantly clear that this settlement would not have been
13
achieved but for a release of these claims that you assert and
14
perhaps others would assert as well.
15
It is my intention, Mr. Feinman, to write an order setting
16
forth my reasons for the opinion, but I wanted to rule today so
17
that any other court which is concerned about the settlement
18
agreement entered into by Volkswagen and your clients -- and
19
your clients -- be interpreted in the way that the Court feels
20
is the appropriate interpretation of that claim.
21
And so I wanted to rule that way today.
I expect shortly
22
within the next two weeks to get a -- what I hope is a reasoned
23
opinion out of this court.
24
with it, the remedies are available to you to seek review.
25
And, obviously, while you disagree
I also want to point out that I think you've been entirely
D67
55
1
professional.
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I appreciate your courtesy, I appreciate your directness, I
3
appreciate your candor.
4
against you, I h
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