Bishop, Heenan & Davies v. Volkswagen Group of America ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16020
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
2 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN
WALAWENDER; JOSEPH MORREY;
MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER;
ADDISON MINOTT; RICHARD
GROGAN; ALAN BANDICS; MELANI
BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
BISHOP, HEENAN & DAVIES,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 3
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16065
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
4 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN
WALAWENDER; JOSEPH MORREY;
MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER;
ADDISON MINOTT; RICHARD
GROGAN; ALAN BANDICS; MELANI
BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
LAW OFFICE OF MALONEY &
CAMPOLO, LLP,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
AUDI OF AMERICA, LLC; PORSCHE
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 5
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16067
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
MARK ROVNER; WOLFGANG
6 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN
WALAWENDER; JOSEPH MORREY;
MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER;
ADDISON MINOTT; RICHARD
GROGAN; ALAN BANDICS; MELANI
BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
JAMES BEN FEINMAN; RONALD
CLARK FLESHMAN, JR.,
Objectors-Appellants,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 7
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16068
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
8 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN
WALAWENDER; JOSEPH MORREY;
MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER;
ADDISON MINOTT; RICHARD
GROGAN; ALAN BANDICS; MELANI
BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
LEMBERG LAW, LLC,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 9
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16082
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
10 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN
WALAWENDER; JOSEPH MORREY;
MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER;
ADDISON MINOTT; RICHARD
GROGAN; ALAN BANDICS; MELANI
BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
NAGEL RICE, LLP,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 11
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16083
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
12 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN
WALAWENDER; JOSEPH MORREY;
MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER;
ADDISON MINOTT; RICHARD
GROGAN; ALAN BANDICS; MELANI
BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
STRONG LAW OFFICES,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 13
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16089
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
14 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN
WALAWENDER; JOSEPH MORREY;
MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER;
ADDISON MINOTT; RICHARD
GROGAN; ALAN BANDICS; MELANI
BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
HYDE & SWIGART,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 15
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16092
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
16 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN
WALAWENDER; JOSEPH MORREY;
MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER;
ADDISON MINOTT; RICHARD
GROGAN; ALAN BANDICS; MELANI
BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
THE DRISCOLL FIRM, P.C.,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 17
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16099
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
18 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN
WALAWENDER; JOSEPH MORREY;
MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER;
ADDISON MINOTT; RICHARD
GROGAN; ALAN BANDICS; MELANI
BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
VILES AND BECKMAN, LLC,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 19
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16123
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
20 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN
WALAWENDER; JOSEPH MORREY;
MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER;
ADDISON MINOTT; RICHARD
GROGAN; ALAN BANDICS; MELANI
BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
HOLTON LAW FIRM, PLLC,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 21
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16124
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
22 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN
WALAWENDER; JOSEPH MORREY;
MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER;
ADDISON MINOTT; RICHARD
GROGAN; ALAN BANDICS; MELANI
BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
MAKAREM & ASSOCIATES, APLC,
Objector-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 23
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16130
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
24 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; RYAN JOSEPH
SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ;
NANCY L. STIREK; REBECCA
PERLMUTTER; ADDISON MINOTT;
RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
LAW OFFICE OF SAMUEL W.
BEARMAN, LLC; SELLERS SKIEVASKI
KUDER LLP; ARTICE MCGRAW, PA,
Objectors-Appellants,
v.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 25
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16132
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
26 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN
WALAWENDER; JOSEPH MORREY;
MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER;
ADDISON MINOTT; RICHARD
GROGAN; ALAN BANDICS; MELANI
BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
HARRELL & NOWAK, LLC,
Objector-Appellant,
v.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 27
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16156
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
28 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; RYAN JOSEPH
SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ;
NANCY L. STIREK; REBECCA
PERLMUTTER; ADDISON MINOTT;
RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
EGOLF FERLIC HARWOOD, LLC,
Objector-Appellant,
v.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 29
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16158
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
30 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; RYAN JOSEPH
SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ;
NANCY L. STIREK; REBECCA
PERLMUTTER; ADDISON MINOTT;
RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
RYDER LAW FIRM, P.C.,
Objector-Appellant,
v.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 31
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16172
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W.
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
32 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; SCOTT MOEN; RYAN
JOSEPH SCHUETTE; MEGAN
WALAWENDER; JOSEPH MORREY;
MICHAEL LORENZ; NANCY L.
STIREK; REBECCA PERLMUTTER;
ADDISON MINOTT; RICHARD
GROGAN; ALAN BANDICS; MELANI
BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
PAUL S. ROTHSTEIN,
Objector-Appellant,
v.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 33
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” No. 17-16180
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No.
3:15-md-02672-
CRB
JASON HILL; RAY PRECIADO; SUSAN
TARRENCE; STEVEN R. THORNTON;
ANNE DUNCAN ARGENTO; SIMON W. OPINION
BEAVEN; JULIET BRODIE; SARAH
BURT; AIMEE EPSTEIN; GEORGE
FARQUAR; MARK HOULE; REBECCA
KAPLAN; HELEN KOISK-WESTLY;
RAYMOND KREIN; STEPHEN VERNER;
LEO WINTERNITZ; MARCUS
ALEXANDER DOEGE; LESLIE
MACLISE-KANE; TIMOTHY WATSON;
FARRAH P. BELL; JERRY LAWHON;
MICHAEL R. CRUISE; JOHN C.
DUFURRENA; SCOTT BAHR; KARL
FRY; CESAR OLMOS; BRITNEY LYNNE
SCHNATHORST; CARLA BERG;
AARON JOY; ERIC DAVIDSON WHITE;
FLOYD BECK WARREN; THOMAS J.
BUCHBERGER; RUSSELL EVANS;
34 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
CARMEL RUBIN; DANIEL SULLIVAN;
MATTHEW CURE; DENISE DE FIESTA;
MARK ROVNER; WOLFGANG
STEUDEL; ANNE MAHLE; DAVID
MCCARTHY; RYAN JOSEPH
SCHUETTE; MEGAN WALAWENDER;
JOSEPH MORREY; MICHAEL LORENZ;
NANCY L. STIREK; REBECCA
PERLMUTTER; ADDISON MINOTT;
RICHARD GROGAN; ALAN BANDICS;
MELANI BUCHANAN FARMER; KEVIN
BEDARD; ELIZABETH BEDARD;
CYNTHIA R. KIRTLAND; MICHAEL
CHARLES KRIMMELBEIN; WILL
HARLAN; HEATHER GREENFIELD;
THOMAS W. AYALA; HERBERT
YUSSIM; NICHOLAS BOND; BRIAN J.
BIALECKI; KATHERINE MEHLS;
WHITNEY POWERS; ROY MCNEAL;
BRETT ALTERS; KELLY R. KING;
RACHEL OTTO; WILLIAM ANDREW
WILSON; DAVID EBENSTEIN; MARK
SCHUMACHER; CHAD DIAL; JOSEPH
HERR; KURT MALLERY; MARION B.
MOORE; LAURA SWENSON; BRIAN
NICHOLAS MILLS,
Plaintiffs-Appellees,
HAWKS QUINDEL, S.C.; HABUSH
HABUSH & ROTTIER, S.C.,
Objectors-Appellants,
v.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 35
VOLKSWAGEN GROUP OF AMERICA,
INC.; VOLKSWAGEN, AG; AUDI, AG;
AUDI OF AMERICA, LLC; PORSCHE
CARS NORTH AMERICA, INC.;
ROBERT BOSCH GMBH; ROBERT
BOSCH, LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted December 19, 2018
San Francisco, California
Filed January 22, 2019
Before: MILAN D. SMITH, JR. and JACQUELINE H.
NGUYEN, Circuit Judges, and JANE A. RESTANI, *
Judge.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
36 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
SUMMARY **
Attorneys’ Fees / Class Action
The panel affirmed the district court’s order denying the
244 motions for attorneys’ fees filed by non-class counsel,
arising from an underlying class action that secured a
settlement of more than $10 billion and an additional award
of $175 million in fees for class counsel, in a multi-district
litigation concerning claims predicated on Volkswagen’s
use of defeat devices in certain VW and Audi diesel vehicles.
The panel held that appellants, who were law firms and
lawyers that appealed in their own names (with the exception
of appellant Ronald Clark Fleshman, Jr. who joined his
attorney’s appeal), had standing to challenge the fee order.
The panel concluded, as a matter of first impression, that
appellants had standing because they suffered an injury
(deprivation of attorneys’ fees) that was caused by the
conduct complained of (the fee order) and would be
redressed by judicial relief.
Federal Rule of Civil Procedure 23 permits an award of
fees when authorized by law or the parties’ agreement, and
courts have an independent obligation to ensure that the
award, like the settlement itself, is reasonable. Because the
underlying class action did not feature a traditional common
fund from which attorneys’ fees were procured, appellants
could only have collected fees if they provided a substantial
benefit to the class. The panel concluded that the district
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 37
court did not abuse its discretion when it determined that the
efforts of non-class counsel for which they sought fees did
not benefit the class such that they would be entitled to
compensation.
The panel rejected three additional arguments advanced
by Nagel Rice LLP and others (the Nagel Appellants). The
panel held that the district court’s order supplied the
necessary level of explanation for its decision. The panel
also held that there was no agreement between the parties,
either explicit or implicit, that Volkswagen would
compensate the Nagel Appellants for their efforts. Finally,
the panel held that the Nagel Appellants improperly invoked
quantum meruit where non-class counsel did not
substantially benefit the class; and no unjust enrichment
occurred.
Appellant James Ben Feinman’s separate brief
challenged the district court’s injunction enjoining efforts to
assert attorney fee lien claims under State law. The panel
held that because the district court vacated the lien order and
its injunction, all of the issues contained in Feinman’s brief
were rendered moot, and the panel need not consider them.
COUNSEL
Bruce H. Nagel (argued) and Diane E. Sammons, Nagel
Rice, LLP, Roseland, New Jersey; James B. Feinman
(argued), James B. Feinman & Associates, Lynchburg,
California; Sara Khosroabadi and Joshua B. Swigart, Hyde
& Swigart, San Diego, California; for Objectors-Appellants.
Samuel Issacharoff (argued), New York, New York; Kevin
R. Budner, David S. Stellings, and Elizabeth J. Cabraser,
38 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
Lieff Cabraser Heimann & Bernstein LLP, San Francisco,
California; Robin L. Greenwald, Weitz & Luxenberg P.C.,
New York, New York; Christopher A. Seeger, Seeger Weiss
LLP, New York, New York; Paul J. Geller, Robbins Geller
Rudman & Dowd LLP, Boca Raton, Florida; Lynn Lincoln
Sarko, Keller Rohrback L.L.P., Seattle, Washington;
Michael D. Hausfeld, Hausfeld LLP, Washington, D.C.;
Jayne Conroy, Simmons Hanly Conroy LLC, New York,
New York; Roxanne Barton Conlin, Roxanne Conlin &
Associates P.C., Des Moines, Iowa; Joseph F. Rice, Motley
Rice LLC, Mount Pleasant, South Carolina; Michael Everett
Heygood, Heygood Orr & Pearson, Irving, Texas; Adam J.
Levitt, Dicello Levitt & Casey LLC, Chicago, Illinois; Frank
Mario Pitre, Cotchett Pitre & McCarthy LLP, Burlingame,
California; James E. Cecchi and Carella, Byrne, Cecchi
Olstein Brody & Agnello P.C., Roseland, New Jersey; David
Boies, Boies Schiller & Flexner LLP, Armonk, New York;
W. Daniel “Dee” Miles III, Beasley Allen Law Firm,
Montgomery, Alabama; Benjamin L. Bailey, Bailey Glasser
LLP, Charleston, West Virginia; Steve W. Berman, Hagens
Berman, Seattle, Washington; Rosemary M. Rivas, Levi &
Korsinsky LLP, San Francisco, California; David Seabold
Casey Jr., Casey Gerry Schenk Franca Villa Blatt & Penfield
LLP, San Diego, California; J. Gerard Stranch IV,
Branstetter Stranch & Jennings, PLLC, Nashville,
Tennessee; Lesley E. Weaver, Bleichmar Fonti & Auld LLP,
Oakland, California; Roland K. Tellis, Baron & Budd P.C.,
Encino, California; for Plaintiffs-Appellees.
Sharon Nelles (argued), Andrew J. Finn, William B.
Monahan, and Robert J. Giuffra, Jr., Sullivan & Cromwell
LLP, New York, New York, for Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 39
OPINION
M. SMITH, Circuit Judge:
Appellants are lawyers and law firms that represented
class members in an underlying class action that secured a
settlement of more than $10 billion and an additional award
of $175 million in fees for class counsel. Non-class counsel
filed 244 motions for attorneys’ fees. In a single order, the
district court denied all of the motions, determining that the
lawyers neither performed common benefit work nor
followed the proper procedures for compensation. We
affirm. 1
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Background
On September 18, 2015, the Environmental Protection
Agency (EPA) issued a Notice of Violation (NOV) in which
it alleged that Defendants-Appellees Volkswagen Group of
America, Inc., Volkswagen, AG, and Audi, AG
(collectively, Volkswagen) used “defeat devices” in 500,000
1
Various appellants filed eighteen separate notices of appeal from
the district court’s order, seventeen of which are consolidated here. (The
eighteenth appeal—Autoport, LLC v. Volkswagen Group of America,
Inc., No. 17-16066—was later severed from the consolidation and is
addressed in a concurrently filed memorandum disposition.) The law
firms represented in fifteen of the seventeen consolidated appeals signed
on to the brief prepared by Appellants Nagel Rice, LLP and Hyde &
Swigart, while Appellants James Ben Feinman and Ronald Clark
Fleshman, Jr. submitted their own, separate brief. Appellant Bishop,
Heenan & Davies LLC did not sign either of these briefs, and did not
submit its own.
40 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
Volkswagen- and Audi-branded TDI “clean diesel” vehicles.
As the district court later explained,
[T]he defeat device produces regulation-
compliant results when it senses the vehicle
is undergoing testing, but operates a less
effective emissions control system when the
vehicle is driven under normal
circumstances. It was only by using the
defeat device that Volkswagen was able to
obtain Certificates of Conformity from EPA
and Executive Orders from [the California
Air Resources Board] for its TDI diesel
engine vehicles. In reality, these vehicles
emit nitrogen oxides (“NOx”) at a factor of
up to 40 times over the permitted limit.
Two months later, the EPA issued a second NOV to
Volkswagen and Defendant-Appellee Porsche Cars of North
America, Inc., which implicated the companies’ 3.0-liter
diesel engine vehicles.
II. Procedural Background
A. Commencement of Lawsuits
Soon after the issuance of the NOVs, consumers
nationwide commenced hundreds of lawsuits. One such
action was spearheaded by Appellant Nagel Rice, LLP
(Nagel Rice), an illustrative law firm that represented forty-
three Volkswagen owners from various states. Nagel Rice
filed a complaint in New Jersey federal court on September
21, 2015—three days after the issuance of the first NOV and
two months before the eventual consolidation of all related
cases. During this early representation, Nagel Rice asserts
that it performed various activities related to the litigation,
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 41
including conducting research, fielding calls from
prospective clients and the media, and communicating with
German legal counsel regarding potential jurisdictional and
evidentiary issues.
Eventually, on December 8, 2015, the Judicial Panel on
Multidistrict Litigation consolidated the various lawsuits
and transferred them to the U.S. District Court for the
Northern District of California. Ultimately, the district court
received more than one thousand Volkswagen cases as part
of this multidistrict litigation (MDL), titled In re Volkswagen
“Clean Diesel” Marketing, Sales Practices, & Products
Liability Litigation, MDL 2672.
B. Pretrial Orders
On December 9, 2015—the day after the consolidation
and transfer—the district court issued its first pretrial order
(PTO), in which it announced its intent “to appoint a
Plaintiffs’ Steering Committee(s) to conduct and coordinate
the pretrial stage of this litigation with the defendants’
representatives or committee.” Nagel Rice was one of the
firms that submitted papers to be selected either as Lead
Counsel or as a member of the Plaintiffs’ Steering
Committee (PSC).
The district court selected a twenty-one-member PSC
following the application process, and appointed it and Lead
Counsel (together, Class Counsel) in its seventh PTO (PTO
No. 7). This PTO asserted 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,
[] pretrial proceedings shall [be] conducted by and through
the PSC.”
42 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
In its eleventh PTO (PTO No. 11), filed on February 25,
2016, the district court outlined its protocol for common
benefit work and expenses. The court explained that “[t]he
recovery of common benefit attorneys’ fees and cost
reimbursements will be limited to ‘Participating Counsel,’”
which it defined as
Lead Counsel and members of the Plaintiffs’
Steering Committee (along with members
and staff of their respective firms), any other
counsel authorized by Lead Counsel to
perform work that may be considered for
common benefit compensation, and/or
counsel who have been specifically approved
by this Court as Participating Counsel prior
to incurring any such cost or expense.
It further elaborated that “Participating Counsel shall be
eligible to receive common benefit attorneys’ fees and
reimbursement of costs and expenses only if the time
expended, costs incurred, and activity in question were (a)
for the common benefit of Plaintiffs; (b) timely submitted;
and (c) reasonable.” As to the first requirement—“for the
common benefit of Plaintiffs”—the district court explained
that
[o]nly Court-appointed Counsel and those
attorneys working on assignments therefrom
that require them to review, analyze, or
summarize those filings or Orders in
connection with their assignments are doing
so for the common benefit. All other counsel
are reviewing those filings and Orders for
their own benefit and that of their respective
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 43
clients and such review will not be
considered Common Benefit Work.
(emphasis added). Class Counsel later reported that “Lead
Counsel took advantage of the authority granted in PTO 7 to
enlist and authorize nearly 100 additional firms to perform
the necessary common benefit work, which was then tracked
pursuant to the protocol set forth in PTO 11.” 2
The PTOs’ guidance notwithstanding, Nagel Rice claims
that, although it was not selected to be Lead Counsel or a
member of the PSC, it “appeared telephonically in almost
every court appearance relative to the case and provided
continual updates to clients via email,” and “fielded scores
of telephone calls from clients and other class members
seeking information relative to the settlement and the
process for submitting objections and claims.” Similarly,
another lawyer, Appellant James Ben Feinman, extensively
litigated on behalf of 403 individual clients in Virginia state
and federal courts, in addition to monitoring the MDL.
There is no indication in the record that Nagel Rice,
Feinman, or any other Appellants fully complied with the
PTOs in performing these efforts.
C. Settlement Process
Class Counsel, along with ninety-seven additional
plaintiffs’ firms that Lead Counsel enlisted pursuant to PTO
2
For example, PSC chair Elizabeth Cabraser attested that “prior to
the filing of the Consolidated Consumer Class Action Complaint, [she]
requested all firms who had submitted leadership applications and other
interested firms to submit information on plaintiffs interested in serving
as proposed class representatives. Information on [] nearly 600 plaintiffs
was submitted by dozens of firms. All of these firms were asked to
submit their time for this effort under PTO 11.” (citation omitted).
44 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
No. 11, embarked on an aggressive settlement process that,
in the words of Settlement Master Robert S. Mueller III,
“involved at least 40 meetings and in-person conferences at
various locations, including San Francisco, New York City,
and Washington, DC, over a five-month period. A number
of these sessions lasted many hours, both early and late, and
weekends were not excluded.” The efforts undertaken by
this group included drafting a 719-page consolidated class
action complaint, selecting class representatives, requesting
and reviewing more than 12 million pages of Volkswagen
documents, and conducting settlement negotiations.
The district court preliminarily approved the resulting
Consolidated Consumer Class Action Settlement (the
Settlement) on July 29, 2016. In their motion for preliminary
approval, the class action’s plaintiffs (Plaintiffs) asserted
that “[n]one of the settlement benefits for Class Members
will be reduced to pay attorneys’ fees or to reimburse
expenses of Class Counsel. Volkswagen will pay attorneys’
fees and costs separately and in addition to the Settlement
benefits to Class Members.”
The court filed its final approval of the Settlement on
October 25, 2016. As of November 2017—one year before
the end of the claims period—the claims of more than
300,000 class members had been submitted and finalized,
resulting in payments of nearly $7 billion.
D. Recovery of Attorneys’ Fees
Notably, for purposes of these appeals, section 11.1 of
the Settlement read in part as follows:
Volkswagen agrees to pay reasonable
attorneys’ fees and costs for work performed
by Class Counsel in connection with the
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 45
Action as well as the work performed by
other attorneys designated by Class Counsel
to perform work in connection with the
Action in an amount to be negotiated by the
Parties and that must be approved by the
Court. . . . If the Parties reach an agreement
about the amount of attorneys’ fees and costs,
Class Counsel will submit the negotiated
amount to the Court for approval. . . . The
Parties shall have the right to appeal the
Court’s determination as to the amount of
attorneys’ fees and costs.
Volkswagen and Class Counsel eventually agreed to an
award of $175 million in attorneys’ fees and costs, which the
district court granted on March 17, 2017.
In November 2016, Volkswagen informed the district
court that it had begun receiving “notices of representation
from [attorneys] purporting to assert attorneys’ fee liens on
payments made to certain class members under” the
Settlement. The district court also began to receive motions
for attorneys’ fees and costs. In response, the court issued
an order regarding attorneys’ liens (the Lien Order) on
November 22, 2016. It noted that a purpose of the
Settlement was to “ensure[] Class Members who participate
in a Buyback have sufficient cash to purchase a comparable
replacement vehicle and thus facilitate[] removal of the
polluting vehicles from the road.” The court continued,
An attorneys’ lien on a Class Member’s
recovery frustrates this goal. By diverting a
portion of Class Members’ compensation to
private counsel, a lien reduces Class
Members’ compensation and places them in
46 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
a position where they must purchase another
vehicle but lack the funds to do so. Put
another way, attorneys—notably, attorneys
who did not have a hand in negotiating the
Settlement—stand to profit while their clients
are left with inadequate compensation.
Accordingly, pursuant to its power under the All Writs Act,
the district court “enjoin[ed] any state court proceeding
relating to an attorneys’ lien on any Class Member’s
recovery under the Settlement.”
However, acknowledging that “some attorneys may have
provided Class Members with compensable services,” the
court also established a procedure for recovery of attorneys’
fees, requiring “a separate application for each Class
Member” that would include “the amount sought; the
specific legal service(s) provided, including time records;
and the terms of the fee agreement that require such an
award.” The court ultimately received 244 applications,
including one from Nagel Rice.
Feinman, the Virginia lawyer who continued his
litigation activities even after consolidation and appointment
of Class Counsel, filed an objection to the Lien Order
injunction and requested more time to comply with the
procedure for fee applications. In his objection, he explained
the propriety of his attorney’s lien in Virginia, and called
into question the district court’s federal question jurisdiction
over the claims of his clients. He concluded that “this
Honorable Court has no right, authority or power to annul or
repeal Virginia law in regard to statutorily-created liens for
attorneys’ fees. To do so violates the property rights of Mr.
Feinman without due process of law, and violates the Full
Faith and Credit Clause of the United States.”
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 47
After reviewing the 244 fee applications, the district
court issued an order (the Fee Order) in which it determined
that “Volkswagen did not agree to pay these fees and costs
as part of the Settlement, and [] Non-Class Counsel have not
offered evidence that their services benefited the class, as
opposed to their individual clients,” and consequently
denied the motions. The court concluded that “Non-Class
Counsel’s filing of individual and class complaints prior to
the MDL did not benefit the class” because, due to the short
time between the first NOV and consolidation of the MDL,
little pretrial activity occurred that might have driven
settlement negotiations. It also noted that although “Non-
Class Counsel offer[ed] evidence that . . . they fielded
hundreds of phone calls from prospective and actual clients,”
these efforts “at most benefited individual class members,
not the class as a whole.” As for work undertaken after
appointment of Class Counsel, the court determined that, due
to its PTOs, “Non-Class Counsel [] were on notice that they
would not receive common benefit compensation for these
efforts,” and had also been informed of the required
compensation procedure outlined in PTO No. 11. Finally,
the district court concluded that “the time Non-Class
Counsel spent advising class members on the terms of the
Settlement” was “duplicative of that undertaken by Class
counsel, and therefore did not ‘confer[] a benefit beyond that
conferred by lead counsel.’” (alteration in original) (quoting
In re Cendant Corp. Sec. Litig., 404 F.3d 173, 191 (3d Cir.
2005)). Consequently, the court denied the 244 fee
applications.
In denying the applications, the district court also
recognized that “[w]hile 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.”
48 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
Accordingly, the court vacated the Lien Order and its
accompanying injunction on state court actions to facilitate
such recovery.
These appeals followed.
STANDARD OF REVIEW AND JURISDICTION
An order denying attorneys’ fees is reviewed for abuse
of discretion. Lane v. Residential Funding Corp., 323 F.3d
739, 742 (9th Cir. 2003). “Findings of fact are reviewed for
clear error; conclusions of law are reviewed de novo.”
Stetson v. Grissom, 821 F.3d 1157, 1163 (9th Cir. 2016). We
have jurisdiction pursuant to 28 U.S.C. § 1291.
ANALYSIS
Nagel Rice and the other Appellants that signed its brief
(collectively, Nagel Appellants) suggest that “[t]his appeal
presents an issue of first impression in the Ninth Circuit:
whether Independent Counsel who performed services and
incurred costs in a multi-district litigation prior to the
appointment of Lead Counsel are entitled to an award of fees
and costs, or are only the firms appointed to leadership roles
entitled to a fee award for services performed prior to their
appointment.” In truth, however, the central issue before us
is narrower: whether the district court abused its discretion
when it denied Appellants’ motions for attorneys’ fees.
Appellants’ challenges to the Fee Order raise various legal
issues, which we will address in turn.
I. Standing
As a threshold matter, Volkswagen argues that
Appellants lack standing to appeal. It premises this
contention on our previous determination that “the right to
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 49
seek attorney’s fees [is vested] in the prevailing party, not
her attorney, and [] attorneys therefore lack standing to
pursue them.” Pony v. County of Los Angeles, 433 F.3d
1138, 1142 (9th Cir. 2006). Because Appellants are law
firms and lawyers that appeal in their own names (with the
exception of Appellant Ronald Clark Fleshman, Jr., who is
one of Feinman’s clients and joins his attorney’s appeal),
Volkswagen contends that Appellants lack standing to
vindicate a right that is properly vested with their clients, the
underlying class members.
We disagree. Nagel Appellants correctly observe that
the cases on which Volkswagen relies, Pony included,
concerned statutory attorneys’ fees provisions. See Pony,
433 F.3d at 1142 (discussing fees authorized pursuant to
42 U.S.C. § 1988). Here, by contrast, Appellants did not
seek fees pursuant to statute, and so we cannot base our
conclusion on Pony or other similar cases.
Instead, we conclude that, as a matter of first principles,
Appellants have the most compelling case for standing
because they suffered an injury (deprivation of attorneys’
fees) that was caused by the conduct complained of (the Fee
Order) and would be redressed by judicial relief. See Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); cf. Glasser
v. Volkswagen of Am., Inc., 645 F.3d 1084, 1088–89 (9th Cir.
2011) (concluding that class plaintiffs in a non-common
fund case lacked standing to appeal an attorneys’ fee award
to class counsel because it did not affect class plaintiffs’
recovery and so they were not “‘aggrieved’ by the fee
award” (quoting In re First Capital Holdings Corp. Fin.
Prods. Sec. Litig., 33 F.3d 29, 30 (9th Cir. 1994))). Here,
Appellants were aggrieved by the district court’s denial of
their motions for attorneys’ fees. Therefore, we conclude
50 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
that Appellants properly have standing to challenge the Fee
Order. 3
II. The Fee Order
Federal Rule of Civil Procedure 23 permits a court to
“award reasonable attorney’s fees and nontaxable costs that
are authorized by law or by the parties’ agreement.” Fed. R.
Civ. P. 23(h). Various courts, including our own, have
determined that even non-class counsel can be entitled to
attorneys’ fees. See, e.g., Stetson, 821 F.3d at 1163–65 (9th
Cir. 2016) (indicating that an objector can be entitled to
attorneys’ fees in a class action); In re Cendant, 404 F.3d at
195 (concluding that an attorney who “creates a substantial
3
We note that Nagel Appellants premise their standing argument on
cases involving common settlement funds, from which both the Supreme
Court and this court have acknowledged that litigants and lawyers have
a right to recover fees. See Boeing Co. v. Van Gemert, 444 U.S. 472,
478 (1980); Vincent v. Hughes Air W., Inc., 557 F.2d 759, 769 (9th Cir.
1977). However, as the district court correctly noted, “[t]he Settlement’s
Funding Pool is not a traditional common fund from which settlement
proceeds are to be paid . . . . Volkswagen agreed to pay Plaintiffs’ fees
and costs in addition to the payments to the Class rather than from the
fund created for payments to the Class.” Cf. 5 William B. Rubenstein,
Newberg on Class Actions § 15:53 (5th ed. 2018) (“[I]n common fund
cases the prevailing litigants [pay] their own attorney’s fees . . . . [T]he
common fund doctrine allows a court to distribute attorney’s fees from
the common fund that is created for the satisfaction of class members’
claims . . .” (emphasis added)). Although Nagel Appellants invoked the
common fund doctrine in their brief, their counsel at oral argument
clearly stated that they sought fees not from the $10 billion-plus class
settlement, but instead from the separate $175 million fee recovery that
Volkswagen paid Class Counsel. Absent a traditional common fund
from which both class members and Class Counsel drew money, this is
not a traditional common fund case, and so Nagel Appellants cannot rely
on common fund precedent as controlling when different considerations
apply to standing in non-common fund cases.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 51
benefit for the class” can be “entitled to compensation
whether or not chosen as lead counsel”).
Although Rule 23 permits an award of fees when
authorized by law or the parties’ agreement, courts
have an independent obligation to ensure that
the award, like the settlement itself, is
reasonable, even if the parties have already
agreed to an amount. The reasonableness of
any fee award must be considered against the
backdrop of the “American Rule,” which
provides that courts generally are without
discretion to award attorneys’ fees to a
prevailing plaintiff unless (1) fee-shifting is
expressly authorized by the governing
statute; (2) the opponents acted in bad faith or
willfully violated a court order; or (3) “the
successful litigants have created a common
fund for recovery or extended a substantial
benefit to a class.”
In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935,
941 (9th Cir. 2011) (emphasis added) (citations omitted)
(quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,
421 U.S. 240, 275 (1975) (Marshall, J., dissenting)). Here,
there is no dispute that neither the first nor the second
scenario is applicable. Therefore, Appellants would be
entitled to attorneys’ fees only if they contributed to the
creation of a common fund or otherwise benefited the class.
Because the underlying class action did not feature a
traditional common fund from which attorneys’ fees were
procured, 4 Appellants could only have collected fees if they
4
See supra note 3.
52 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
provided a substantial benefit to the class, as the district
court correctly recognized. See Vizcaino v. Microsoft Corp.,
290 F.3d 1043, 1051–52 (9th Cir. 2002) (“Because objectors
did not . . . substantially benefit the class members, they
were not entitled to fees.” (citing Bowles v. Wash. Dep’t of
Ret. Sys., 847 P.2d 440, 449–50 (Wash. 1993))).
This is the central issue across the consolidated appeals:
whether Appellants’ efforts meaningfully benefited the
class, and whether the district court abused its discretion
when it concluded that they did not and denied their fee
motions on that basis.
A. Common Benefit Work
We ultimately conclude that the district court did not
abuse its discretion when it determined that the efforts of
non-Class Counsel for which they sought fees did not benefit
the class such that they would be entitled to compensation.
In their reply brief, Nagel Appellants summarize the
efforts for which they sought reimbursement:
Commencing hundreds of lawsuits nationwide after
public disclosure of the first NOV and before the
advent of the MDL;
Filing motions, including “at least four motions to
preserve evidence” and “at least three motions for
interim lead counsel positions”;
Conducting early settlement efforts prior to
consolidation;
Conducting preliminary discovery;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 53
Presenting “at least eight conferences for attorneys
across the country to analyze, discuss, and refine
approaches to bringing the cases”;
Securing the appointment of two mediators in several
New Jersey actions prior to consolidation;
Researching potential causes of action;
“Fielding and vetting [] hundreds of phone calls from
prospective clients,” as well as press inquiries;
Communicating and coordinating with other
attorneys;
“Communicating with prospective German legal
counsel regarding potential jurisdiction issues and
possible efforts to secure key evidence from a foreign
country”;
“[A]ppearing in New Orleans with a group of other
local law firms to argue in support of the transfer and
consolidation of all the cases to the State of New
Jersey, where [Volkswagen] is incorporated and
where it maintains key management offices”;
Appearing telephonically in court appearances and
providing updates to clients after the appointment of
Class Counsel.
Our analysis will first consider those efforts undertaken prior
to the appointment of Class Counsel, before addressing work
performed subsequently.
54 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
i. Work Before Appointment of Class Counsel
As Plaintiffs correctly note, “[E]ven assuming these
activities are all attributable to the Appellants, [they] fail to
establish how, precisely, these activities benefitted the Class.
This shortcoming is fatal to Appellants’ appeals.” In In re
Cendant, a case on which Nagel Appellants frequently rely,
the court distinguished between work that benefits a class
and other, non-compensable work:
[W]e do not think that attorneys can simply
manufacture fees for themselves by filing a
complaint in a securities class action. On the
other hand, attorneys who alone discover
grounds for a suit, based on their own
investigation rather than on public reports,
legitimately create a benefit for the class, and
comport with the purposes of the securities
laws. Such attorneys should generally be
compensated out of the class’s recovery, even
if the lead plaintiff does not choose them to
represent the class. More generally,
attorneys whose complaints contain factual
research or legal theories that lead counsel
did not discover, and upon which lead
counsel later rely, will have a claim on a share
of the class’s recovery.
404 F.3d at 196–97 (footnote omitted). Undoubtedly,
Appellants undertook various pre-consolidation efforts on
behalf of their individual clients, but there is no indication,
either in the voluminous record they provided or in the
briefs, that this work contributed to the negotiation or
crafting of the Settlement or otherwise benefited the class in
any meaningful way. Appellants may have filed complaints
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 55
and conducted preliminary discovery and settlement work
on behalf of their clients before consolidation of the MDL
and appointment of Class Counsel, but they do not appear to
have discovered grounds for suit outside of the information
contained in the widely publicized NOVs, or otherwise
provided guidance or insights that were later used in
securing the Settlement. In short, Appellants have not
demonstrated that, in Plaintiffs’ words, “they engaged in
serious settlement efforts, much less that any such efforts
contributed to the class settlement framework that was
ultimately reached, approved, and successfully
implemented.” Therefore, the district court did not abuse its
discretion when it concluded that there “was little to any
pretrial activity in the cases filed by Non-Class Counsel, and
the filings alone did not materially drive settlement
negotiations with Volkswagen.” 5
ii. Work After Appointment of Class Counsel
Nagel Appellants indicate that most of their post-
appointment efforts consisted of fielding inquiries from
prospective clients, explaining the process and mechanics of
the Settlement, and “remain[ing] updated on the case.” Such
work was specifically mandated by PTO No. 11, which also
emphasized that “[o]nly Court-appointed Counsel and those
attorneys working on assignments therefrom that require
5
Although Nagel Appellants claim that Class Counsel’s work
“consisted of combining/duplicating the work of others to file an
amended complaint followed by their negotiation of the terms of the
settlement and the preparation of settlement documents,” and thus “was
ipso facto the ongoing work by all counsel in the early months following
the September 2015 public disclosure of the cheat devices,” this assertion
is countered by Class Counsel’s motion for attorneys’ fees, which
recounted their extensive, non-duplicative efforts on behalf of the
Settlement.
56 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
them to review, analyze, or summarize those filings or
Orders in connection with their assignments are doing so for
the common benefit. All other counsel are reviewing those
filings and Orders for their own benefit and that of their
respective clients and such review will not be considered
Common Benefit Work.” (emphasis added). The district
court applied similar restrictions to attendance at status
conferences (“Individual attorneys are free to attend any
status conference . . . but except for Lead Counsel and
members of the Plaintiffs’ Steering Committee or their
designees, attending and listening to such conferences is not
compensable Common Benefit Work”), pleading and brief
preparation (the court specified that “factual and legal
research and preparation of consolidated class action
complaints and related briefing” would be compensable),
and attendance at seminars (“Except as approved by Lead
Counsel, attendance at seminars . . . shall not qualify as
Common Benefit Work”). (emphasis added). Therefore,
under the PTOs issued pursuant to the managerial authority
possessed by the district court, Appellants’ post-
appointment work did not benefit the class and hence was
not compensable.
No Appellant challenges the PTOs or the district court’s
authority to issue them. Indeed, the Federal Judicial Center
has noted that a court will often “need to institute procedures
under which one or more attorneys are selected and
authorized to act on behalf of other counsel and their clients
with respect to specified aspects of the litigation,” and
further encouraged that “[e]arly in [complex] litigation, the
court should define designated counsel’s functions,
determine the method of compensation, specify the records
to be kept, and establish the arrangements for their
compensation, including setting up a fund to which
designated parties should contribute in specified
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 57
proportions.” Manual for Complex Litigation §§ 10.22,
14.215 (4th ed. 2004); see also Ready Transp., Inc. v. AAR
Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (“It is well
established that ‘[d]istrict courts have inherent power to
control their docket.’” (alteration in original) (quoting
Atchison, Topeka & Santa Fe Ry. Co. v. Hercules Inc.,
146 F.3d 1071, 1074 (9th Cir. 1998))); Kern Oil & Ref. Co.
v. Tenneco Oil Co., 792 F.2d 1380, 1388 (9th Cir. 1986)
(permitting district court’s pretrial order to govern recovery
of attorneys’ fees). Accordingly, given the district court’s
inherent power to manage the MDL, as well as its discretion
in granting attorneys’ fees, there is no dispute that
Appellants were required to abide by the PTOs, including
PTO No. 11. We are told that nearly 100 other law firms
followed the PTOs, and received compensation accordingly.
But there is no indication in the record before us that
Appellants fully adhered to the PTOs’ guidance and
procedures.
iii. Summation
Ultimately, we agree with Plaintiffs’ summary of the
work undertaken by Appellants and attested to by the
voluminous documentation provided to the district court:
Appellants chose to represent individual
clients who were Class Members in a
consolidated class action prosecuted by a
leadership team appointed by the District
Court. In so choosing, these attorneys
knowingly undertook work that the District
Court had correctly concluded would inure
only to the benefit of their individual clients,
and not to the Class as a whole. In other
words, these lawyers knew that, although
their work might establish a right to recovery
58 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
under their respective attorney-client
agreements and subject to the ethical
constraints on lawyers, it would not be
compensable through any petition in the
MDL.
Appellants point to nothing in the 13,000-page record that
indicates that the work they performed on behalf of their
individual clients, either before or after appointment of Class
Counsel, informed the Settlement or otherwise benefited the
class. 6 Furthermore, the district court explicitly precluded
compensation for many of these efforts in its PTOs. 7
As the Third Circuit concluded in In re Cendant, “The
mere fact that a non-designated counsel worked diligently
and competently with the goal of benefiting the class is not
sufficient to merit compensation. Instead, only attorneys
‘whose efforts create, discover, increase, or preserve’ the
class’s ultimate recovery will merit compensation from that
recovery.” 404 F.3d at 197 (quoting In re Gen. Motors Corp.
Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768,
6
In their reply brief, Nagel Appellants suggest that one firm,
Appellant Ryder Law Firm, P.C. (Ryder), benefited the class by
“provid[ing] the Court with comments in relation to the proposed
settlement.” However, the excerpts of the record to which Nagel
Appellants point do not demonstrate that Ryder actually did this, let
alone that its contributions were utilized in any way by Class Counsel,
Volkswagen, or the district court.
7
Additionally, the district court expressly set forth a process through
which non-Class Counsel could receive reimbursement for any work that
was “for the common benefit of Plaintiffs,” was “timely submitted,” and
was “reasonable.” However, no Appellant argues that it was authorized
by Lead Counsel to perform work, of common benefit or otherwise, and
then submitted time records as required by the district court’s protocol.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 59
820 n.39 (3d Cir. 1995)). Here, the record clearly indicates
that Appellants worked diligently and presumably
competently for their clients. But because there is no
indication that any of these efforts actually benefited the
class and complied with the PTOs, the district court did not
abuse its discretion, by either applying the wrong law or
relying on erroneous factual determinations, when it denied
Appellants’ motions for attorneys’ fees.
B. Additional Arguments
Nagel Appellants advance three additional arguments as
to how the district court abused its discretion when it issued
the Fee Order. 8 We will consider each in turn.
i. Explanation of Denial
Nagel Appellants assert that “[t]he District Court should
have, but did not, support its denial with a clear explanation
based upon an evaluation of the underlying fee petitions.
This was legal error.” We disagree. The district court was
8
In the “Issues Presented” section of their opening brief, Nagel
Appellants identify a fourth additional issue: “whether the District Court
erred in the selection of the lead firms by requesting that the firms
indicate the support of other firms applying for the appointment and
considering this ‘popularity’ factor.” However, they provide no
substantive argument to accompany this issue, either in that introductory
section or anywhere else in the brief, and the issue is not raised in the
opposition briefs or in Nagel Appellants’ reply. We will therefore treat
the issue as waived. See In re Worlds of Wonder Sec. Litig., 35 F.3d
1407, 1424 (9th Cir. 1994) (“[L]ack of argument waives an appeal of
[an] issue.”). Incidentally, a district court’s selection of class counsel is
reviewed for abuse of discretion, see Sali v. Corona Reg’l Med. Ctr.,
889 F.3d 623, 634–35 (9th Cir. 2018), and we see no indication that the
district court’s consideration of this or any other factor when it selected
Class Counsel constituted such an abuse.
60 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
required only to “articulate with sufficient clarity the manner
in which it ma[de] its determination.” Carter v. Caleb Brett
LLC, 757 F.3d 866, 869 (9th Cir. 2014) (quoting Quesada v.
Thomason, 850 F.2d 537, 539 (9th Cir. 1988)); see also
McGinnis v. Ky. Fried Chicken of Cal., 51 F.3d 805, 809 (9th
Cir. 1994) (determining that “when ruling on the appropriate
amount of fees, no rote recitation [of factors] is necessary”
where the court’s “decision gives [] no basis for doubting
that [it] was familiar with controlling law” and there is no
“factor which the judge failed to consider”). Here, the
district court sufficiently explained its decision. It first set
forth the guidance provided by Rule 23 and relevant
appellate decisions, and then accurately described the
various work Appellants performed both before and after the
appointment of Class Counsel—none of which constituted
“evidence that their services benefited the class as a whole.”
This is all that we require: a description of the applicable
standard and an engagement with the facts as illustrated by
the fee motions. It would be unreasonable to expect the court
to undertake an extensive analysis of each individual
motion 9 when all that is needed is engagement with the
controlling law and explanation of the court’s reasoning. As
Volkswagen notes, “The fact that Appellants’ fee motions
were all found deficient for similar reasons does not make
the District Court’s ruling insufficiently reasoned.” Because
the district court’s order supplied the necessary level of
explanation for its decision, it did not abuse its discretion in
this regard.
9
In the aggregate, these 244 motions included more than 13,000
pages of supporting documentation.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 61
ii. Parties’ Agreement
Noting that Rule 23 permits recovery of fees “that are
authorized . . . by the parties’ agreement,” Fed. R. Civ. P.
23(h), Nagel Appellants contend that the district court
incorrectly concluded that Volkswagen did not agree to pay
the fees at issue here as part of the Settlement. But the
Settlement clearly provided only that “Volkswagen agrees to
pay reasonable attorneys’ fees and costs for work performed
by Class Counsel in connection with the Action as well as
the work performed by other attorneys designated by Class
Counsel to perform work in connection with the Action.”
(emphases added). No other document filed as part of the
Settlement indicates any additional commitment on
Volkswagen’s part. Although Nagel Appellants suggest that
class members were “led to believe—via the Settlement
Agreement—that their attorneys would be reasonably
compensated by Defendants,” 10 this proposition is belied by
the Settlement’s Long Form Notice, which read,
Class Counsel will represent you at no charge
to you, and any fees Class Counsel are paid
will not affect your compensation under this
Class Action Settlement. If you want to be
represented by your own lawyer, you may
hire one at your own expense. It is possible
that you will receive less money overall if
you choose to hire your own lawyer to litigate
10
This assertion is apparently based on language in the Long Form
Notice that indicated that “Volkswagen will pay attorneys’ fees and costs
in addition to the benefits it is providing to the class members in this
Settlement.” However, on the previous page, the Notice specified that
only Class Counsel would receive those fees.
62 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
against Volkswagen rather than receive
compensation from this Class Action
Settlement.
(emphasis added). 11 Accordingly, there was no agreement
between the parties, either explicit or implicit, that
Volkswagen would compensate Appellants for their efforts.
iii. Quantum Meruit and Unjust Enrichment
Lastly, Nagel Appellants suggest that the district court
erred when it failed to consider the equitable principles of
quantum meruit and unjust enrichment. However, although
a court’s power to award attorneys’ fees might be derived
from equity, the existence of this power alone does not
vitiate the long-recognized requirement that the work of a
lawyer in a case like this must benefit the class. If, as the
district court concluded, Appellants did not provide a
substantial benefit, then neither the class members nor Class
Counsel would have been unjustly enriched at Appellants’
expense. Nagel Appellants’ invocation of quantum meruit
therefore only begs the original question of whether non-
Class Counsel’s efforts benefited the class. As they did not,
no unjust enrichment occurred.
11
Nagel Appellants note that this language appeared under the
heading “Do I need to hire my own attorney . . . ?” and therefore,
“[g]iven that Independent Counsel had already been retained prior to the
Notice, Class Members would assume the provision, expressed in a
future tense, did not apply.” But however misleading the Long Form
Notice might have been on this point, this ambiguity certainly did not
constitute an agreement that Volkswagen would pay non-Class
Counsel’s fees.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 63
III. The Lien Order
Feinman, in his separate brief, ostensibly appeals, like
the other Appellants, from the Fee Order. He indicates that
“[t]his is an appeal from the United States District Court for
the Northern District of California in which the trial court
determined Volkswagen is not required to pay Non-Class
Counsel attorney fees and costs.” However, the main focus
of his appeal, as evidenced by his preliminary statement, is
the “injunction issued by the District Court for the Northern
District of California in the Volkswagen Clean Diesel
litigation enjoining efforts to assert attorney fee lien claims
under State law”—the Lien Order. It is that injunction, and
not the Fee Order, that is the basis of Feinman’s various
arguments: that the injunction violated the Anti-Injunction
Act; that the district court did not have subject matter
jurisdiction to issue the injunction as to his Virginia lien; that
the injunction had the effect of imposing the cost of
removing polluting vehicles from the roadway on him; that
the injunction was premised on an unfounded legal premise;
that the injunction violated his due process rights; and that
the injunction violated the Fifth Amendment. Indeed,
Feinman’s conclusion and request for relief references only
the Lien Order and not the Fee Order.
The district court already vacated the Lien Order and its
injunction, and so they are no longer in effect. Therefore, all
of the issues contained in Feinman’s brief were rendered
moot, and we need not consider them. See Berkeley Cmty.
Health Project v. City of Berkeley, 119 F.3d 794, 795 (9th
Cir. 1997) (“Because the district court has vacated its
preliminary injunction, this appeal is dismissed as moot.”).
Both Feinman’s opening brief and his reply brief
demonstrate that he is, in effect, asking us for an advisory
opinion: “What Feinman wants from this appeal is a ruling
64 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION
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. 12
CONCLUSION
We are sympathetic to Appellants, and have no doubt
that many of them dutifully and conscientiously represented
12
We might infer from Feinman’s opening brief that his
jurisdictional challenge applies to the Fee Order as well as the vacated
injunction. Such an argument would have no merit. We have held that
“[a] transferee judge exercises all the powers of a district judge in the
transferee district under the Federal Rules of Civil Procedure,” which
includes “authority to decide all pretrial motions, including dispositive
motions such as motions to dismiss, motions for summary judgment,
motions for involuntary dismissal under Rule 41(b), motions to strike an
affirmative defense, and motions for judgment pursuant to a settlement.”
In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217,
1230–31 (9th Cir. 2006) (emphasis added); see also K.C. ex rel. Erica C.
v. Torlakson, 762 F.3d 963, 968 (9th Cir. 2014) (“There is no debate that
a federal court properly may exercise ancillary jurisdiction ‘over attorney
fee disputes collateral to the underlying litigation.’” (quoting Fed. Sav.
& Loan Ins. Corp. v. Ferrante, 364 F.3d 1037, 1041 (9th Cir. 2004))).
Therefore, the district court had jurisdiction over the attorneys’ fees
motions.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 65
their clients. This is not necessarily a case where latecomers
attempt to divide spoils that they did not procure. 13 But
Appellants’ efforts do not entitle them to compensation from
the MDL, when the record indicates that they did not
perform work that benefited the class, and that they
neglected to follow the protocol mandated by the district
court. We commend the district court’s efforts to
successfully manage a massive and potentially ungainly
MDL, and conclude that the court did not abuse its discretion
when it determined that Appellants were not entitled to
compensation.
Accordingly, we AFFIRM the district court’s denial of
Appellants’ motions for attorneys’ fees.
13
See generally Florence White Williams, The Little Red Hen
(1918).