Hernandez v. Wells Fargo Bank, N.A.

• Court: District Court, N.D. California
• Decided: January 9, 2022
• Docket: 3:18-cv-07354
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6

8 ALICIA HERNANDEZ, et al., 9 Plaintiffs, No. C 18-07354 WHA

10 v.

11 WELLS FARGO BANK, N.A., ORDER GRANTING FINAL APPROVAL OF SUPPLEMENTAL 12 Defendant. CLASS ACTION SETTLEMENT AND MOTIONS FOR ATTORNEY’S FEES 13 AND EXPENSES

14 INTRODUCTION 15 In this long-running wrongful foreclosure class action, plaintiffs move for final approval 16 of a supplemental class settlement and for attorney’s fees and litigation expenses. Because the 17 settlement is fair, adequate, and reasonable, final approval is GRANTED. And because class 18 counsel has worked diligently and represented the class ably, and the request for fees is 19 reasonable, the request for attorney’s fees is GRANTED. The requests for administration and 20 litigation expenses are also GRANTED. 21 STATEMENT 22 “In response to the unfolding financial crisis of 2008, Congress passed the Emergency 23 Economic Stabilization Act, Pub. L. No. 110-343, 122 Stat. 3765. This law included the 24 Troubled Asset Relief Program, which required the Secretary of the Treasury, among many 25 other duties and powers, to implement a plan that seeks to maximize assistance for 26 homeowners and encourage the servicers of the underlying mortgages to take advantage of 27 1 Department in 2009 started the [Home Affordable Modification Program (HAMP)] program to 2 incentivize banks to refinance mortgages of distressed homeowners so they could stay in their 3 homes. Home loan servicers, including [defendant Wells Fargo Bank, N.A.], signed Servicer 4 Participation Agreements with Treasury that entitled them to $1,000 for each permanent 5 modification they made, but required them to follow Treasury guidelines and procedures.” 6 Corvello v. Wells Fargo Bank, NA, 728 F.3d 878, 880 (9th Cir. 2013) (per curiam). 7 In 2011, however, after “an examination of the residential real estate mortgage 8 foreclosure processes of Wells Fargo Bank, N.A.,” the Office of the Comptroller of the 9 Currency “identified certain deficiencies and unsafe or unsound practices in residential 10 mortgage servicing and in the Bank’s initiation and handling of foreclosure proceedings.” 11 Wells Fargo Bank, N.A., Sioux Falls, South Dakota, AA-EC-11-19, #2011-051 (Dep’t of 12 Treasury, Comptroller of Currency, Apr. 13, 2011) (consent order), 13 https://www.occ.gov/static/enforcement-actions/ea2011-051.pdf. The Comptroller and the 14 bank entered into a consent order, whereby Wells Fargo agreed, among other things, to 15 implement an “action plan” to “ensure compliance with . . . servicing guides of the 16 Government Sponsored Enterprises or investors, including those with the Federal Housing 17 Administration and those required by the Home Affordable Modification Program . . . .” Id. 18 In 2015, the Comptroller found that the bank had failed to meet its obligations under 19 those provisions (and many others) of the 2011 consent order. Wells Fargo Bank, N.A., Sioux 20 Falls, South Dakota, AA-EC-11-19, #2015-067 (Dep’t of Treasury, Comptroller of Currency, 21 June 16, 2015) (consent order amending 2011 consent order), 22 https://www.occ.gov/static/enforcement-actions/ea2015-067.pdf. The Comptroller ordered, 23 and the bank agreed, that the bank would not expand its residential mortgage servicing 24 business until termination of the consent order. Id. 25 Finally, in 2016, the Comptroller found: 26 Between March 2013 through October 2014, the Bank made escrow calculation errors in 76,720 accounts due to an error in a 27 proprietary loan decisioning software tool. . . . [¶] The escrow 1 Wells Fargo Bank, N.A., Sioux Falls, South Dakota, AA-EC-11-19, #2016-055 (Dep’t of 2 Treasury, Comptroller of Currency, May 24, 2016) (consent order for civil money penalty), 3 https://www.occ.gov/static/enforcement-actions/ea2016-055.pdf. The bank agreed to pay a 4 $70 million penalty and the consent order was terminated. Id.; Wells Fargo Bank, N.A., Sioux 5 Falls, South Dakota, AA-EC-11-19, #2016-056 (Dep’t of Treasury, Comptroller of Currency, 6 May 24, 2016) (termination order), https://www.occ.gov/static/enforcement-actions/ea2016- 7 056.pdf. 8 Plaintiff Alicia Hernandez owned a condominium in New Jersey purchased with a 9 mortgage loan serviced by defendant. In or around 2012 or 2013, Hernandez defaulted on the 10 loan. Defendant denied Hernandez a trial mortgage modification under HAMP and foreclosed 11 on the property in 2015. In 2018, defendant sent Hernandez a letter stating that she had been 12 denied a trial loan modification due to a miscalculation; the letter included a check for about 13 $15,000 as remediation. 14 Plaintiff Hernandez filed this action in 2018 as a putative nationwide class action 15 asserting several claims for relief. In February 2019, in response to a motion to dismiss, 16 plaintiff filed a first amended complaint adding fifteen new named plaintiffs and additional 17 claims for relief, including breach of contract. All plaintiffs had residential mortgage loans 18 serviced by defendant and were denied loan modifications. At all material times, plaintiffs 19 have alleged that an error in defendant’s software tool used to determine whether a borrower 20 qualified for a trial loan modification overstated the amount of attorney’s fees the bank used in 21 calculating borrowers’ eligibility for a trial loan modification under HAMP. Rather than limit 22 such fees to the maximum allowable under HAMP, plaintiffs allege, the bank added the limits 23 to fees actually incurred and consequently denied loan modifications to homeowners who 24 actually qualified under HAMP. In 2018, the bank disclosed the error and sent affected 25 borrowers a letter apologizing for its mistake along with remediation payments, usually 26 between $5,000 and $15,000. 27 For their breach of contract claims, plaintiffs relied on provisions in their loan contracts 1 foreclosure proceedings after default. The notice had to include “the action required to cure 2 the default.” Because they qualified for trial loan modifications under HAMP at the time of 3 their defaults, plaintiffs argued that “action required to cure the default” included acceptance of 4 a trial loan modification offer, which the bank was required to give under the guidelines and 5 procedures. Therefore, plaintiffs contended, defendant breached the agreements by foreclosing 6 without first offering them a trial loan modification. 7 A June 2019 order disagreed, finding (Dkt. No. 87): 8 Nothing in this provision (or any other provision in the contract) supports plaintiffs’ proposed interpretation. The secured-loan 9 instrument does not mention mortgage modification at all. Instead, it gives the bank the absolute right to foreclose in the event of an 10 uncured default. The alleged requirement to offer plaintiffs a loan modification comes only from “HAMP or related programs,” none 11 of which are referenced in the contract that Wells Fargo purportedly breached. 12 13 An August 2019 order then granted plaintiffs’ motion for leave to file a second amended 14 complaint, finding (Dkt. No. 136): 15 Plaintiffs have now alleged additional facts to demonstrate defendant bank knew loan modification was an action that could 16 cure default. For example, the complaint now alleges defendant sent a letter to plaintiff Troy Frye stating it was “considering a 17 program that may assist you in bringing your loan current . . . This program, known as a loan modification, would provide you with 18 the opportunity for a fresh start by adjusting the current terms of your loan.” Furthermore, the complaint also alleges the 19 instruments referenced loan modifications stating, “extensions of the time for payment or modification of amortization of the sums 20 secured by this Security instruments . . . shall not operate to release the liability of Borrowers.” 21 22 The parties then vigorously litigated two motions for class certification (the first was 23 denied without prejudice because of deficient briefing) and a motion to exclude plaintiffs’ 24 expert. A January 2020 order certified only the breach of contract claim under FRCP 23(b)(3) 25 for the following class (Dkt. No. 217): 26 All persons in the United States who between 2010 and 2018 (i) qualified for a home loan modification or repayment plan 27 pursuant to the requirements of government-sponsored enterprises Affordable Modification Program (HAMP); (ii) were not offered a 1 home loan modification or repayment plan by Wells Fargo due to excessive attorney’s fees being included in the loan modification 2 decisioning process; and (iii) whose home Wells Fargo sold in foreclosure. 3 4 The class certification order appointed plaintiffs Debora Granja (she had a 5 Fannie/Freddie contract) and Sandra Campos (she had an FHA contract) class representatives 6 and appointed Michael Schrag of Gibbs Law Group LLP and Richard Paul of Paul LLP as 7 class counsel. Notice of the class action was distributed using the bank’s records by way of 8 first-class mail. 9 The bank then filed a petition for an interlocutory appeal of the class certification order 10 under FRCP 23(f) and moved to stay proceedings here pending our court of appeals’ decision 11 on the petition. The motion to stay was denied. Around the same time, the bank moved for 12 partial summary judgment as to the certified claim. The bank’s partial summary judgment 13 motion relied on several district court decisions directly contrary to plaintiffs’ asserted 14 interpretation of the Fannie Mae/Freddie Mac contracts, upon which the cases of class 15 members with those instruments hinged. 16 The bank’s motion for partial summary judgment had been fully briefed in March 2020, 17 and the parties had conducted (and litigated) extensive discovery, when plaintiffs moved for 18 preliminary approval of the original class action settlement. The original settlement had been 19 reached under the supervision of Magistrate Judge Donna M. Ryu. The settlement agreement 20 that is the subject of the instant motion is an enlarged version of the original settlement; it 21 provides an identical amount of money per individual class member and uses the same plan of 22 allocation. Namely, the original settlement provided an economic damages payment for each 23 class member which, when added to the remediation payment already made by the bank to the 24 class member, equaled 38% of the unpaid principal balance on the loan at the time of loan 25 decision error, minus 5% for every six months of loan delinquency. The original gross 26 settlement totaled $18.5 million, of which $1 million was set aside for claims for severe 27 emotional distress, to be adjudicated by Special Master Cathy Yanni, a highly experienced 1 An April 2020 order granted preliminary approval of the original settlement, approved 2 the settlement notice and emotional distress claim form, and appointed JND Legal 3 Administration as settlement administrator and Cathy Yanni as special master for adjudicating 4 emotional distress claims. Notice of the proposed settlement proceeded via first-class mail. 5 An October 2020 order granted final approval to the original $18.5 million class settlement, 6 finding it to be fair, reasonable, and adequate, and the product of good faith, arms-length 7 negotiations between the parties. Class counsels’ requests for attorney’s fees and litigation 8 expenses were also approved in full. The original settlement resolved the claims of 505 class 9 members. 10 Shortly after final approval of the original class settlement, the bank identified 741 11 additional affected borrowers who fell within the class definition but who the bank did not 12 identify in connection with the original settlement. At a status conference in December 2020, 13 the undersigned judge ordered the parties to present a separate, supplemental settlement for the 14 newly identified class members. Distribution of the original settlement fund continued apace. 15 The parties then negotiated the supplemental class settlement that is the subject of the 16 instant motion. The proposed supplemental settlement class is defined identically as the class 17 certified in January 2020 except that it excludes the class members who were part of the 18 original settlement. The proposed settlement provides a total, net, non-reversionary fund of 19 $18,169,325 for economic damages and emotional distress. In July 2021, an order granted 20 preliminary approval of the supplemental settlement, approved the form of notice, the 21 emotional distress claim form, and appointed JND Legal Administration as class administrator 22 and Cathy Yanni as special master for the emotional distress fund. Plaintiffs now move for 23 final approval of the supplemental class settlement, and for attorney’s fees of $3,623,865, 24 settlement administration expenses of $70,000, and litigation expenses of $1,483. This order 25 follows full briefing and a telephonic hearing. 26 // 27 // 1 ANALYSIS 2 “The class action device, while capable of the fair and efficient adjudication of a large 3 number of claims, is also susceptible to abuse and carries with it certain inherent structural 4 risks.” Officers for Just. v. Civ. Serv. Comm’n of City & Cty. of San Francisco, 688 F.2d 615, 5 623 (9th Cir. 1982). 6 Rule 23(e)(2) provides that if a proposed class settlement “would bind class members, the 7 court may approve it only after a hearing and only on finding that it is fair, reasonable, and 8 adequate . . . .” “In this Circuit, a district court examining whether a proposed settlement 9 comports with Rule 23(e)(2) is guided by the eight Churchill factors, viz., (1) the strength of 10 the plaintiff’s case; (2) the risk, expense, complexity, and likely duration of further litigation; 11 (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in 12 settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the 13 experience and views of counsel; (7) the presence of a governmental participant; and (8) the 14 reaction of the class members of the proposed settlement.” Kim v. Allison, 8 F.4th 1170, 1178 15 (9th Cir. 2021) (cleaned up). 16 1. SUMMARY OF THE SETTLEMENT. 17 As noted, the supplemental class settlement provides the 740 supplemental class 18 members (one opted-out) with the same recovery as the original 505 class members; the 19 numbers are bigger because the supplemental class is bigger. Wells Fargo has agreed to pay a 20 total of $21,864,673 for the release of the supplemental class members’ claims. The bank will 21 pay the supplemental class a net, non-reversionary amount of $18,169,325 for economic 22 damages and severe emotional distress. Separate from the $18.2 million for class members, 23 the bank has agreed to pay $3,623,865 for attorney’s fees to class counsel, and $71,483 in 24 administration and litigation expenses. Crucially, the payment to class members is not affected 25 by the ruling on the request for attorney’s fees; under the parties’ agreement, any unawarded 26 fees revert to the bank. 27 $16,719,325 is for economic damages. Class members whose remediation payments 1 fund such additional amount that will bring their total remediation payment plus economic 2 damages fund payment to 38% of their unpaid principal balance. However, the payment will 3 be reduced by 5% for every six months the class member was delinquent on her loan but not 4 below $14,000. This formula was chosen based on using the unpaid principal balance on the 5 loan as a proxy for the value of the denied loan modification because, in general, class 6 members with larger unpaid principal balances more likely suffered more lost equity. Under 7 this formula, each class member will receive an economic damages payment of at least 8 $14,000 and at most $116,502. 9 $1,450,000 is for emotional distress. The emotional distress claim form, designed by 10 Special Master Yanni designed, asked class members for a narrative statement and, if 11 available, supporting documentation, such as medical records. 104 supplemental class 12 members have submitted claims for severe emotional distress. Yanni made her initial 13 decisions on November 15, and class members had until December 6 to request 14 reconsideration. Ten supplemental class members did so, and Ms. Yanni increased their initial 15 awards. In the end, each supplemental class member who applied for emotional distress funds 16 received a final allocation between $11,400 and $34,420, accounting for 100% of the 17 $1,450,000 emotional distress fund. 18 2. THE CHURCHILL FACTORS. 19 First, the relative strength of plaintiffs’ case supports the settlement. The bank’s motion 20 for summary judgment as to the breach of contract claim (the only certified claim) cited 21 several district court decisions whose reasoning, if applied here, would defeat the contract 22 claims of the class members who had Fannie Mae/Freddie Mac contracts. See, e.g., Davis v. 23 DRRF Tr. 2015-1, 2016 WL 8257126 (W.D. Tex. Jan. 6, 2016); see also Nolasco v. 24 CitiMortgage, Inc., 2012 WL 3648414 (S.D. Tex. Aug. 23, 2012). Moreover, relying in part 25 on the reasoning of the June 2019 order dismissing the breach of contract claim, the bank 26 argued forcefully that the language relied on by plaintiffs was unambiguous so resort to 27 extrinsic evidence to interpret it would be incorrect. 1 Second, the risk, expense, complexity, and likely duration of further litigation supports 2 the settlement. Wells Fargo has consistently maintained that the contract law of the state 3 where each class members’ property was located would need to be considered, not just federal 4 common law, to interpret the contracts. The bank argued this position in its summary 5 judgment motion and the judge has yet to definitely rule on the question. The prospect of 6 having to apply more than one body of contract law to a nationwide class complicates the 7 case. Proving classwide damages with common proof would also be difficult and complex. 8 Finally, even if the class survived summary judgment and prevailed at trial, the bank would 9 almost certainly appeal. 10 Third, the risk of maintaining class action status throughout the trial in this case does not 11 appear to present a particularly greater risk than a typical class action, so this factor is neutral. 12 Fourth, the amount of the settlement strongly favors approval. The settlement will 13 provide a net, total, non-reversionary fund of $18,169,325 for 740 class members. Plaintiffs 14 have not submitted a fresh damages analysis in support of the supplemental settlement, but 15 because the supplemental settlement provides the same level of relief, the expert analysis of 16 the original class’ damages demonstrates that the supplemental settlement represents a good 17 recovery for class members. 18 Plaintiffs’ damages expert opined that damages could be measured by combining the 19 value of the lost use and lost equity of the class members’ homes (Dkt. No. 192-12.) As for 20 lost use (id. at 19): 21 The proper calculation to measure the lost use of Plaintiffs’ homes lost to foreclosure is the difference between the cost of renting an 22 equivalent home and the cost of living in and maintaining their own homes. They lost the use of their home, which can be valued 23 at the cost of renting a roughly equivalent property. They also avoided the cost of living in and maintaining their homes, which I 24 therefore subtract to arrive at lost use damages. 25 As for lost equity: “Lost equity as of today can be calculated as the difference between 26 the current market value of the homes lost by Plaintiffs less the amount that would have been 27 owed under the loan modification that was wrongfully denied” (id. at 13.) 1 Plaintiffs’ damages expert estimated that the maximum total classwide economic 2 damages, a combination of lost use and lost equity, equaled $50 million (Dkt. No. 269-1 at 6.) 3 Thus, the original $18.5 million settlement represented a 37% recovery of the maximum 4 possible. 5 But the bank argued that under the following statement in the class certification order, 6 only lost equity damages were in play (Dkt. No. 217 at 7): 7 [T]he bank next argues causation and damages cannot be determined with common evidence. Defendant is correct that 8 calculating damages for each of the class members in a nationwide breach of contract class would require individualized inquiries . . . . 9 Under the new class definition, which limits the class only to those whose homes were foreclosed on, however, damages can be 10 calculated through common evidence based on the value of the equity lost by each homeowner through a foreclosure. 11 12 As for lost equity alone, the damages expert estimated that the total maximum 13 recoverable lost equity for the original class was $22.9 million (Dkt. No. 269-1 at 6–7.) So, if 14 the bank was right, and class damages were limited to lost equity, the original class settlement 15 ($18.5 million) equaled 80% of the maximum recoverable damages. 16 Again, the 37% and 80% were in connection with the original settlement but because the 17 supplemental settlement provides the same level of relief as the original settlement, we know 18 that the supplemental fund represents a similar percentage of recovery for supplemental class 19 members. This recovery is better than other settlements approved in similar wrongful loan 20 foreclosure class actions. See Chao v. Aurora Loan Servs., LLC, 2015 WL 294823 (N.D. Cal. 21 Jan. 21, 2015) (Judge Saundra B. Armstrong) (granting final approval of gross $5.25M 22 settlement for 15,000 class members); see also Gaudin v. Saxon Mortgage Servs. Inc., 2015 23 WL 7454183 (N.D. Cal. Nov. 23, 2015) (Judge Jon S. Tigar) (granting final approval to net 24 $4.5M settlement providing $1,100 for each class member on average, representing 13.6% of 25 maximum possible damages). 26 Fifth, the extent of discovery and stage of the litigation strongly support approval. This 27 supplemental settlement comes after final approval of a materially identical settlement which 1 several discovery motions, after class certification, and after a fully briefed motion for 2 summary judgment. 3 Sixth, the abilities and views of counsel support approval. The record readily 4 demonstrates that class counsel have litigated this case ably, and represented the class 5 diligently, including by following up on class members whose notices were returned 6 undeliverable to ensure as many class members as practically possible received actual notice 7 and by following up with original class members to ensure they cashed their checks. That 8 class counsel strongly support this settlement weighs in favor of approval. 9 Seventh, no governmental entity participated in this action so this factor is neutral. 10 Eighth, the reaction of the class members has been positive. Only one class member 11 opted out, and only because she was concerned her settlement award would disrupt 12 governmental benefits (Dkt. No. 328-2 at 9.) No class member objected. 13 3. THE NOTICE AND OTHER RELEVANT CONSIDERATIONS. 14 In addition to the Churchill factors, “Rule 23(e)(2) also requires the court to consider the 15 terms of any proposed award of attorney’s fees and scrutinize the settlement for evidence of 16 collusion or conflicts of interest before approving the settlement as fair.” Kim, 8 F.4th at 1179 17 (cleaned up). 18 A. ADEQUACY OF NOTICE. 19 The undersigned judge previously approved the form, content, and planned distribution 20 of the supplemental class notice under Rule 23(e)(1). 21 In August, after preliminary approval had been granted, the parties notified the Court that 22 JND had made an envelope-stuffing error. That is, the administrator placed notices, which 23 stated the remediation payment and expected economic damages payment specific to the class 24 member, in envelopes addressed to the wrong class member. The Court ordered: the 25 administrator to mail corrected notices; a new opt-out date 45 days after the corrected notice 26 date; the corrected notices to specifically call out the new opt out date, and to state that the new 27 notice superseded the prior notice. The Court also admonished class counsel that the Court 1 relied on counsel to avoid such errors and not to lay off their responsibilities onto the 2 administrator. 3 Declarations by Gretchen Eoff, senior vice president of operations at JND (Dkt. No. 328- 4 1 at 1), and class counsel (Dkt. No. 328-2), describe the thorough effort the administrator and 5 counsel undertook in the corrected notice mailing to ensure that the error did not repeat, and 6 that as many class members as practicable received notice. 7 The notice sent by first class mail to all 741 supplemental class members satisfied all of 8 the requirements of Rule 23(c)(2)(B) (see Dkt. No. 328-1 at 20.) The administrator, class 9 counsel, and the bank made diligent efforts to redeliver notice to class members whose notices 10 were returned undeliverable. After these efforts, 52 supplemental class members’ notices 11 remain undeliverable and it appears that at least 21 of those are deceased and no known next- 12 of-kin have been located, leaving no more than 31 living supplemental class members unfound. 13 The emotional distress claims of the 52 class members whose notices were returned as 14 undeliverable and who have not been located will not be released. 15 The notice program for the supplemental settlement was the same as the original 16 settlement and was executed by the same administrator. According to the status report on the 17 distribution of the original settlement fund, filed by class counsel in June 2021, 94% of the net 18 settlement fund had been cashed (Dkt. No. 314). Thus, the adequacy of the supplemental 19 notice program is further evidenced by the robust participation in the original settlement. 20 B. CLAIM PROCEDURE. 21 Unduly burdensome claims procedures are a red flag under Rule 23(e)(2)(C)(ii). The 22 bulk of the settlement fund ($16,719,325) will be distributed to class members automatically 23 with no claims process. Class members who felt they had suffered severe emotional distress 24 were required to submit a claim form to recover from the emotional distress fund ($1.45M). 25 Ordinarily, a claims process is disfavored, but given the simplicity and straightforwardness of 26 the claim form and process used here, which included the option to submit everything online 27 (see Dkt. No. 328-1 at 28), this part of the settlement was not unduly burdensome. C. ANY OTHER AGREEMENT. 1 The parties have no agreement in connection with the proposed settlement other than the 2 settlement itself. See FRCP 23(e)(2)(iv). 3 D. INCENTIVE PAYMENT. 4 Settlement agreements that provide incentive payments for representative plaintiffs are a 5 red flag because they do not “treat[] class members equitably relative to each other.” FRCP 6 23(e)(2)(D). Class representatives Debora Granja and Sandra Campos did not seek an 7 incentive payment in connection with the original settlement and do no seek one now. The 8 Court thanks Granja and Campos for their service to the class. 9 E. SCOPE OF RELEASE. 10 The proposed agreement, like the original class settlement, contains a release of claims 11 that exceeds the scope of the certified class claim. Specifically, although the class was 12 certified only as to the breach of contract claim, under the proposed settlement, supplemental 13 class members — as well as their spouses, children, heirs, devisees, and so forth — will release 14 the bank and its officers, directors, legal representatives, successors, subsidiaries, and assigns 15 of (Dkt. No. 312-2 at § II(A) ¶¶ 32, 47): 16 any and all claims, rights, causes of action, liabilities, 17 actions, suits, damages, or demands (including Unknown Claims as defined in Paragraph 47, herein), of any kind whatsoever that 18 arise out of or are based on the claims set forth in the Action, including claims based on the subject Loan Modification Denials, 19 damages based on any failure to modify the Loans and/or damages based on the foreclosures challenged in this Action. 20 * * * 21 “Unknown Claims” means any Released Claims that 22 Plaintiffs or any Settlement Class Member does not know or suspect to exist in his, her or its favor at the time of the release of 23 the Released Parties, and any Released Parties Claims that Wells Fargo does not know or suspect to exist in his, her or its favor, 24 which, if known by him, her or it, might have affected his, her or its settlement with and release of the Class Representatives, 25 Settlement Class Members, and Class Counsel, or might have affected his, her or its decisions with respect to the Settlement. 26 In turn, the bank will release supplemental class members from any claims related to this 27 litigation or Settlement. 1 The undersigned judge usually requires that a release of class claims be “limited only to 2 the claims certified for class treatment” and avoid “releasing claims that ‘could have been 3 brought’” (Dkt. No. 12.) Nonetheless, as with the original settlement, the release here is 4 anchored to claims set forth in this action, including claims based on the subject loan 5 modification denials. The scope of the release, therefore, is tailored to the conduct at issue in 6 this action — erroneous denials of loan modifications — as well as the harm alleged by 7 supplemental class members — damages stemming from the loss of their homes. That is, with 8 the exception of the intentional infliction of emotional distress claim, the damages plaintiffs 9 alleged for the remaining claims in the operative complaint were the same as the damages for 10 the breach of contract claim in that they each relate to damages for the loss of supplemental 11 class members’ homes. 12 As to the emotional distress damages plaintiffs sought for their intentional infliction of 13 emotional distress claims and as a component of their damages for wrongful foreclosure claims 14 in California and Georgia, this order, like the original final approval order, finds that the 15 $1,450,000 fund specifically allocated for this type of harm in the supplemental settlement 16 overcomes the undersigned’s admonishment that the scope of the release be limited to claims 17 certified for class treatment. 18 Further, the supplemental settlement provides that the emotional distress claims of the 52 19 class members whose notices were returned as undeliverable and who have not been located 20 will not be released. All supplemental class members’ economic damages claims will be 21 released and the emotional distress claims of all but 52 of the supplemental class members will 22 be released. The scope of the release is reasonable. 23 4. ATTORNEY’S FEES. 24 To avoid collusive settlements, the Court prefers that all settlements avoid any agreement 25 as to attorney’s fees and leave that to the judge. Our court of appeals has identified three signs 26 of collusive agreements, the so-called Bluetooth factors: 27 (1) when counsel receives a disproportionate distribution of the request for an agreed-upon attorney’s fee; and (3) when the 1 agreement contains a ‘kicker’ or ‘reverter’ clause that returns unawarded fees to the defendant, rather than the class. 2 Briseño v. Henderson, 998 F.3d 1014, 1023 (9th Cir. 2021) (quoting In re Bluetooth Headset 3 Products Liability Litigation, 654 F.3d 935, 947 (9th Cir. 2011)). 4 Here, Wells Fargo has agreed to pay $3,623,865 for attorney’s fees separate and apart 5 from the settlement fund. Under the supplemental settlement agreement, an award of a lesser 6 amount than requested does not affect the compensation to the class. Wells Fargo will keep 7 the difference between the fees agreed to and the fees awarded, i.e., if the fee award is less than 8 what the bank agreed to, the difference will “revert” to Wells Fargo, not to the class. 9 At first blush, this arrangement seems to raise the latter two signs of collusion identified 10 by Bluetooth. Namely, the parties have negotiated a clear-sailing arrangement whereby the 11 bank has agreed not to challenge the agreed-upon request for attorney’s fees, and any 12 unawarded fees revert to the bank, rather than the class. 13 In the unusual circumstances of this supplemental class settlement, however, this 14 arrangement is not problematic. An agreement as to a set amount of attorney’s fees to be paid 15 by the bank separate and apart from the class compensation was the only way for the parties to 16 agree to a specific number, i.e., for the bank to know how much it would have to pay, while 17 also ensuring that original and supplemental class members received the same compensation 18 for the same harm. If the settlement had settled the amount of compensation to the class but 19 left the amount of attorney’s fees open, the bank would not have agreed to an undetermined 20 amount of liability. On the other hand, if the settlement had provided that the bank agreed to 21 pay a specific amount of attorney’s fees but unawarded fees would go to the supplemental 22 class, original class members could rightly have challenged the supplemental settlement as 23 arbitrarily awarding supplemental class members more for the same harm. See FRCP 24 23(e)(2)(D). Thus, in the context of this supplemental class settlement, the agreement as to 25 attorney’s fees does not raise red flags under Bluetooth. 26 Moreover, the fee request is reasonable. “Where a settlement produces a common fund 27 for the benefit of the entire class, courts have discretion to employ either the lodestar method 1 or the percentage-of-recovery method.” In re Bluetooth, 654 F.3d at 942. Our court of appeals 2 has established 25% of the total, gross settlement fund as the benchmark for a reasonable 3 attorney’s fee. [bid.; In re Online DVD-Rental Antitrust Litigation, 779 F.3d 934, 953 (9th Cir. 4 2015). Here, the total, gross supplemental settlement fund is $21,864,673. The fee request of 5 $3,623,865 equals about 16.6% of the fund, well below the benchmark. 6 The original settlement created a total, gross settlement fund of $18.5M, and the original 7 attorney’s fee award was $4,525,000. So, the aggregate fee as a percentage of the aggregate, 8 gross settlement equals: 9 $4,525,000 + $3,623,865 + $18,500,000 + $21,864,673 = 20.2%. 10 Thus, the aggregate fees as a percentage of the aggregate, gross settlement amount is well 11 below the 25% benchmark, confirming that the current fee request is reasonable. 12 CONCLUSION 5 13 For the foregoing reasons, final approval of the supplemental class action settlement is 14 GRANTED. Notice has been implemented in accordance with the Court-approved notice plan 3 15 and FRCP 23(c)(2) and (e)(1). The motion for attorney’s fees is GRANTED. Class counsel a 16 Gibbs Law Group LLP and Paul LLP are awarded $3,623,865 FOR ATTORNEY’S FEES. Half of 3 17 this amount shall be paid after the “effective date,” as defined in the settlement agreement. 18 The other half shall be paid when class counsel certify that all supplemental settlement funds 19 have been properly distributed and the file can be completely closed. Settlement 20 administration expenses in the amount of $70,000 are APPROVED. Class counsels’ litigation 21 expenses in the amount of $1,483 are APPROVED. 22 23 IT IS SO ORDERED. 24 25 26 Dated: January 9, 2022 Pee 27 l WILLIAM ALSUP 28 UNITED STATES DISTRICT JUDGE