Shahriar Jabbari v. Wells Fargo & Company

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 20, 2020
• Docket: 18-16213
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. BARBARA COCHRAN,

SHAHRIAR JABBARI; KAYLEE No. 18-16236 HEFFELFINGER, on behalf of themselves and all others similarly situated, D.C. No. 3:15-cv-02159-VC

LYDIA LABELLE DE RIOS,

SHAHRIAR JABBARI; KAYLEE No. 18-16284 HEFFELFINGER, on behalf of themselves and all others similarly situated, D.C. No. 3:15-cv-02159-VC

2 v.

MIKE MURPHY,

SHAHRIAR JABBARI; KAYLEE No. 18-16285 HEFFELFINGER, on behalf of themselves and all others similarly situated, D.C. No. 3:15-cv-02159-VC

CHARLES DARBYSHIRE, Guardian of Roy Geiersbach,

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

JILL PIAZZA,

SHAHRIAR JABBARI; KAYLEE No. 18-16317 HEFFELFINGER, on behalf of themselves and all others similarly situated, D.C. No. 3:15-cv-02159-VC

SCOTT JOHNSTON,

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.

5 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.