James Feinman v. Volkswagen Group of America

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 17, 2020
• Docket: 19-16074
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: VOLKSWAGEN "CLEAN DIESEL" No. 19-16074 MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, D.C. No. 3:15-md-02672-CRB ______________________________

JAMES BEN FEINMAN, MEMORANDUM*

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). 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 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 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.