Filed: Jul. 20, 2020
Latest Update: Jul. 20, 2020
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SHAHRIAR JABBARI; KAYLEE No. 18-16213 HEFFELFINGER, on behalf of themselves and all others similarly situated, D.C. No. 3:15-cv-02159-VC Plaintiffs-Appellees, MEMORANDUM* v. CHAD MICHAEL FARMER, Objector-Appellant, v. WELLS FARGO & COMPANY; WELLS FARGO BANK, N.A., Defendants-Appellees. SHAHRIAR JABBARI; KAYLEE No. 18-16223 HEFFELFINGER, on behalf of themselves an
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SHAHRIAR JABBARI; KAYLEE No. 18-16213 HEFFELFINGER, on behalf of themselves and all others similarly situated, D.C. No. 3:15-cv-02159-VC Plaintiffs-Appellees, MEMORANDUM* v. CHAD MICHAEL FARMER, Objector-Appellant, v. WELLS FARGO & COMPANY; WELLS FARGO BANK, N.A., Defendants-Appellees. SHAHRIAR JABBARI; KAYLEE No. 18-16223 HEFFELFINGER, on behalf of themselves and..
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAHRIAR JABBARI; KAYLEE No. 18-16213
HEFFELFINGER, on behalf of themselves
and all others similarly situated, D.C. No. 3:15-cv-02159-VC
Plaintiffs-Appellees,
MEMORANDUM*
v.
CHAD MICHAEL FARMER,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
SHAHRIAR JABBARI; KAYLEE No. 18-16223
HEFFELFINGER, on behalf of themselves
and all others similarly situated, D.C. No. 3:15-cv-02159-VC
Plaintiffs-Appellees,
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
BARBARA COCHRAN,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
SHAHRIAR JABBARI; KAYLEE No. 18-16236
HEFFELFINGER, on behalf of themselves
and all others similarly situated, D.C. No. 3:15-cv-02159-VC
Plaintiffs-Appellees,
v.
LYDIA LABELLE DE RIOS,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
SHAHRIAR JABBARI; KAYLEE No. 18-16284
HEFFELFINGER, on behalf of themselves
and all others similarly situated, D.C. No. 3:15-cv-02159-VC
Plaintiffs-Appellees,
2
v.
MIKE MURPHY,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
SHAHRIAR JABBARI; KAYLEE No. 18-16285
HEFFELFINGER, on behalf of themselves
and all others similarly situated, D.C. No. 3:15-cv-02159-VC
Plaintiffs-Appellees,
v.
CHARLES DARBYSHIRE, Guardian of
Roy Geiersbach,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
3
SHAHRIAR JABBARI; KAYLEE No. 18-16315
HEFFELFINGER, on behalf of themselves
and all others similarly situated, D.C. No. 3:15-cv-02159-VC
Plaintiffs-Appellees,
JILL PIAZZA,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
SHAHRIAR JABBARI; KAYLEE No. 18-16317
HEFFELFINGER, on behalf of themselves
and all others similarly situated, D.C. No. 3:15-cv-02159-VC
Plaintiffs-Appellees,
v.
SCOTT JOHNSTON,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
4
Appeal from the United States District Court
for the Northern District of California
Vince Chhabria, District Judge, Presiding
Argued and Submitted February 13, 2020
San Francisco, California
Before: GOULD and MURGUIA, Circuit Judges, and FEINERMAN,** District
Judge.
Objectors Chad Michael Farmer, Barbara Cochran, Lydia LaBelle de Rios,
Mike Murphy, Charles Darbyshire, Jill Piazza, and Scott Johnston appeal the district
court’s certification of the settlement class, approval of the settlement, award of
attorney’s fees, and approval of notice. We have jurisdiction under 28 U.S.C.
§ 1291. Reviewing certification, settlement approval, and attorney’s fees for an
abuse of discretion, In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 942 (9th
Cir. 2015), and notice de novo, Roes, 1–2 v. SFBSC Mgmt., LLC,
944 F.3d 1035,
1043 (9th Cir. 2019), we affirm.1
The district court did not abuse its discretion in certifying the class. First,
Plaintiffs’ claim under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, et
**
The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
1
We affirm the district court’s holding that the class satisfied Rule 23(b)(3)’s
predominance requirement in a separate opinion. Because the parties are familiar
with the facts and procedural history of the case, we recite only those facts necessary
to decide this appeal.
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seq., satisfied commonality, Fed. R. Civ. P. 23(a)(2), because Plaintiffs could prove
the claim on an institutional level. Compare Wal–Mart Stores, Inc. v. Dukes, 564
U.S. 338, 350–52 (2011), with Vaquero v. Ashley Furniture Indus., Inc.,
824 F.3d
1150, 1153–54 (9th Cir. 2016). Second, the class representatives and their counsel
satisfied adequacy. Fed. R. Civ. P. 23(a)(4). The district court did not abuse its
discretion in determining that class counsel’s representation was competent,
vigorous, and strategically sound despite foregoing state-law claims because the
FCRA claim had distinct certification and recovery advantages. Class counsel’s
decision was a reasonable strategic choice. Nor did the existence of potential state-
law claims create conflicts of interest necessitating subclasses. The structure of the
settlement, under which class members are reimbursed for their out-of-pocket costs
and any remaining funds are distributed pro rata, ensured that any potential intraclass
competition was avoided.
The district court did not abuse its discretion in determining that the settlement
was “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). The settlement
exhibited none of the telltale signs of collusion. See Allen v. Bedolla, 787 F.3d 1218,
1224 (9th Cir. 2015) (noting that signs of collusion include disproportionate
distribution of settlement funds, clear-sailing arrangements, and reversion of
unclaimed fees to the defendant). None of the Objectors’ arguments regarding
collusion merit reversal. For example, that the settlement was announced
6
contemporaneously with Wells Fargo’s settlement with the City of Los Angeles and
the Consumer Financial Protection Bureau does not compel a finding of collusion.
Moreover, the district court did not abuse its discretion in assessing the
general reasonableness of the settlement. See Rodriguez v. West Publ’g Corp., 563
F.3d 948, 963 (9th Cir. 2009) (listing factors that the district court may consider
when assessing reasonableness). This case involved novel legal issues, especially
regarding the credit damages, and class counsel’s efforts led to a recovery well above
the estimated actual damages that Wells Fargo caused the class. Objectors’
arguments about the size of other settlements beyond this case, about potential
recovery under state-law claims, and about the need for formal discovery do not
demonstrate that the district court abused its discretion in approving the settlement.
Notice was reasonable. See Fed. R. Civ. P. 23(e)(1)(B). Only “the best notice
that [wa]s practicable under the circumstances” was required. SFBSC Mgmt., 944
F.3d at 1045 (quoting Fed. R. Civ. P. 23(c)(2)(B)). Here, the Notice Plan included
advertisements to the general public, messages to millions of current and former
customers, messages to potential class members identified by an independent
consultant, and social media campaigns. No notice plan is perfect, but perfection is
not required. See Briseno v. ConAgra Foods, Inc.,
844 F.3d 1121, 1128–29 (9th Cir.
2017).
7
Finally, the district court did not abuse its discretion in determining that the
attorney’s fees were reasonable. District courts may use either the fund-percentage
method or the lodestar method to assess attorney’s fees. In re Hyundai & Kia Fuel
Econ. Litig., 926 F.3d 539, 570–71 (9th Cir. 2019) (en banc). The court properly
awarded fees well below the 25% benchmark, finding, among other things, that class
counsel achieved substantial results, including a recovery well above actual
damages, that the arbitration and certification issues presented risk, and that the fees
were comparable to awards made in similar cases. See
id. None of the Objectors’
arguments compel a holding that the district court abused its wide discretion in
awarding fees. See Vizcaino v. Microsoft Corp.,
290 F.3d 1043, 1048–50 (9th Cir.
2002).
AFFIRMED.
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