Shahriar Jabbari v. Wells Fargo & Company ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAHRIAR JABBARI; KAYLEE No. 18-16213
HEFFELFINGER, on behalf of
themselves and all others similarly D.C. No.
situated, 3:15-cv-02159-
Plaintiffs-Appellees, VC
v.
CHAD MICHAEL FARMER,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
2 JABBARI V. FARMER
SHAHRIAR JABBARI; KAYLEE No. 18-16223
HEFFELFINGER, on behalf of
themselves and all others similarly D.C. No.
situated, 3:15-cv-02159-
Plaintiffs-Appellees, VC
v.
BARBARA COCHRAN,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
SHAHRIAR JABBARI; KAYLEE No. 18-16236
HEFFELFINGER, on behalf of
themselves and all others similarly D.C. No.
situated, 3:15-cv-02159-
Plaintiffs-Appellees, VC
v.
LYDIA LABELLE DE RIOS,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
JABBARI V. FARMER 3
SHAHRIAR JABBARI; KAYLEE No. 18-16284
HEFFELFINGER, on behalf of
themselves and all others similarly D.C. No.
situated, 3:15-cv-02159-
Plaintiffs-Appellees, VC
v.
MIKE MURPHY,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
4 JABBARI V. FARMER
SHAHRIAR JABBARI; KAYLEE No. 18-16285
HEFFELFINGER, on behalf of
themselves and all others similarly D.C. No.
situated, 3:15-cv-02159-
Plaintiffs-Appellees, VC
v.
CHARLES DARBYSHIRE, Guardian of
Roy Geiersbach,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
SHAHRIAR JABBARI; KAYLEE No. 18-16315
HEFFELFINGER, on behalf of
themselves and all others similarly D.C. No.
situated, 3:15-cv-02159-
Plaintiffs-Appellees, VC
JILL PIAZZA,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
JABBARI V. FARMER 5
SHAHRIAR JABBARI; KAYLEE No. 18-16317
HEFFELFINGER, on behalf of
themselves and all others similarly D.C. No.
situated, 3:15-cv-02159-
Plaintiffs-Appellees, VC
v.
OPINION
SCOTT JOHNSTON,
Objector-Appellant,
v.
WELLS FARGO & COMPANY; WELLS
FARGO BANK, N.A.,
Defendants-Appellees.
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
Filed July 20, 2020
Before: Ronald M. Gould and Mary H. Murguia, Circuit
Judges, and Gary Feinerman, * District Judge.
Opinion by Judge Gould
*
The Honorable Gary Feinerman, United States District Judge for
the Northern District of Illinois, sitting by designation.
6 JABBARI V. FARMER
SUMMARY **
Class Action
The panel affirmed the district court’s holding that a
nationwide class satisfied Fed. R. Civ. P. 23(b)(3)’s
predominance requirement set forth in In re Hyundai & Kia
Fuel Economy Litigation, 926 F.3d 539 (9th Cir. 2019) (en
banc).
This appeal presented objections to the settlement of a
nationwide class action against Wells Fargo. Fed. R. Civ. P.
23(b)(3) requires that “the questions of law or fact common
to class members predominate over any questions affecting
only individual members.”
The panel held that the district court did not abuse its
discretion in holding that common questions predominated.
Specifically, the panel held that Hyundai made clear that it
generally was not legal error to forego a choice-of-law
analysis in a settlement-class predominance inquiry; and this
principle applied with even greater force here, where the
class was unified by a claim under federal law. The panel
further held that the class’s federal Fair Credit Reporting Act
(“FCRA”) claim unified the class because the plaintiffs
could show that the FCRA’s elements were proven by a
common course of conduct, and the existence of potential
state-law claims did not outweigh the FCRA claim’s
importance.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
JABBARI V. FARMER 7
In a separately filed memorandum disposition, the panel
affirmed the district court’s certification of the settlement
class, approval of the settlement, award of attorneys’ fees,
and approval of notice.
COUNSEL
Robert Clore (argued) and Christopher A. Bandas, Bandas
Law Firm P.C., Corpus Christi, Texas, for Objector-
Appellant Chad Michael Farmer.
N. Albert Bacharach Jr. (argued) and Charles Darbyshire, N.
Albert Bacharach Jr. P.A., Gainesville, Florida, for
Objector-Appellant Charles Darbyshire.
John J. Pentz (argued), Law Offices of John J. Pentz,
Sudbury, Massachusetts, for Objector-Appellant Jill Piazza.
Cameron S. Christensen (argued) and Steven Alden
Christensen, Christensen Young & Associates PLLC,
Sandy, Utah, for Objector-Appellant Scott Johnston.
George W. Cochran, Streetsboro, Ohio, for Objector-
Appellant Barbara Cochran.
Steve Scow, Koch & Scow, Henderson, Nevada, for
Objector-Appellant Mike Murphy.
Annette Borzakian, Los Angeles, California, for Objector-
Appellant Lydia LaBelle de Rios.
Benjamin J. Horwich (argued), David H. Fry, and Nick M.
Axelrod, Munger Tolles & Olson LLP, San Francisco,
California; Erin J. Cox, Munger Tolles & Olson LLP, Los
Angeles, California; for Defendants-Appellees.
8 JABBARI V. FARMER
Derek W. Loeser (argued), Gretchen Freeman Cappio, and
Benjamin Gould, Keller Rohrback LLP, Seattle,
Washington; for Plaintiffs-Appellees.
OPINION
GOULD, Circuit Judge:
This appeal presents objections to the settlement of a
nationwide class action against Wells Fargo. We have
jurisdiction pursuant to 28 U.S.C. § 1291. In a separately
filed memorandum disposition, we affirm the district court.
Here, we specifically affirm the district court’s holding that
the class satisfied Rule 23(b)(3)’s predominance
requirement under the precedent set by our recent en banc
decision in In re Hyundai & Kia Fuel Economy Litigation,
926 F.3d 539 (9th Cir. 2019).
I
The class action complaint alleged that Wells Fargo &
Company and Wells Fargo Bank, N.A. (Wells Fargo),
pressured their employees to meet arbitrary and unrealistic
sales quotas unrelated to true consumer demand. This
allegedly resulted in Wells Fargo’s systematic exploitation
of its customers for profit. The crux of the alleged scheme
was that Wells Fargo employees would open multiple
accounts in a customer’s name without the customer’s
consent.
According to the complaint, Wells Fargo directly harmed
its customers to benefit itself. Once Wells Fargo opened an
unauthorized account, it charged fees to the customers.
Customers soon fielded the calls of debt collectors seeking
payment of debts of which the customers were unaware. The
JABBARI V. FARMER 9
outstanding debts and unmonitored bank accounts also
harmed the customers’ credit. Wells Fargo then offered to
sell its credit-protection products to the customers whose
credit it was harming.
Plaintiffs Shahriar Jabbari and Kaylee Heffelfinger sued
Wells Fargo in a putative class action. The complaint
alleged violations of the Fair Credit Reporting Act (FCRA),
15 U.S.C. § 1681, et seq.; the Electronic Fund Transfer Act,
15 U.S.C. § 1693, et seq.; California and Arizona statutory
law; and common law.
After proceedings in the district court, the parties
reached a settlement. The district court certified a settlement
class and approved the settlement. The settlement class
included
[a]ll Persons for whom Wells Fargo or Wells
Fargo’s current or former subsidiaries,
affiliates, principals, officers, directors, or
employees opened an Unauthorized Account
or submitted an Unauthorized Application, or
who obtained Identity Theft Protection
Services from Wells Fargo during the period
from May 1, 2002 to April 20, 2017.
In addressing the objections to the certification and the
settlement, the district court held that “[d]ifferences among
state laws do not bar certification of the class here, as
Plaintiffs have asserted a claim under a federal statute (the
Fair Credit Reporting Act) that is equally applicable in all
states.”
Some Objectors appealed. Among the objections is that
the class did not satisfy Rule 23(b)(3)’s predominance
requirement because the district court did not do a choice-
10 JABBARI V. FARMER
of-law analysis. As support, Objectors cited our opinions
Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir.
2012), and the later-reversed three-judge panel’s opinion in
In re Hyundai & Kia Fuel Economy Litigation, 881 F.3d 679(9th Cir. 2018), rev’d en banc, 926 F.3d 539 (9th Cir. 2019).
We now address this case’s position in that line of cases.
II
“We review for abuse of discretion the district court’s
decision to certify a class for settlement purposes, limiting
our review ‘to whether the district court correctly selected
and applied Rule 23’s criteria.’” In re Hyundai & Kia Fuel
Econ. Litig., 926 F.3d 539, 556 (9th Cir. 2019) (en banc)
(quoting Parra v. Bashas’, Inc., 536 F.3d 975, 977 (9th Cir.
2008)). “When reviewing an order granting class
certification, ‘we accord the district court noticeably more
deference than when we review a denial.’” Torres v. Mercer
Canyons Inc., 835 F.3d 1125, 1132 (9th Cir. 2016) (quoting
Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 956 (9th
Cir. 2013)).
III
Federal Rule of Civil Procedure 23(b)(3) requires “that
the questions of law or fact common to class members
predominate over any questions affecting only individual
members.” To determine whether a class satisfies the
requirement, a court pragmatically compares the quality and
import of common questions to that of individual questions.
See Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045
(2016); see also 2 William B. Rubenstein, Newberg on Class
Actions § 4:50 (5th ed. 2018) (“[A] court must first
characterize the issues in the case as common or individual
and then weigh which predominate.” (emphasis omitted)).
JABBARI V. FARMER 11
This task is not an exact science. Rather, a court must
determine which questions are likely “to drive the resolution
of the litigation.” Torres v. Mercer Canyons Inc., 835 F.3d
1125, 1134 (9th Cir. 2016). If a common question will drive
the resolution, even if there are important questions affecting
only individual members, then the class is “sufficiently
cohesive to warrant adjudication by representation.”
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623–24
(1997); see also Tyson Foods, 136 S. Ct. at 1045.
Also relevant is whether a district court certifies a class
for settlement or for trial. In re Hyundai & Kia Fuel Econ.
Litig. (Hyundai II), 926 F.3d 539, 558 (9th Cir. 2019) (en
banc). Settlement may “obviate[] the need to litigate
individualized issues that would make a trial
unmanageable,” id., making common questions more
important in the relative analysis.
The potential applicability of variations in state law can
complicate the predominance determination. See Senne v.
Kansas City Royals Baseball Corp., 934 F.3d 918, 928 (9th
Cir. 2019) (“[P]otentially varying state laws may defeat
predominance in certain circumstances.”), petition for cert.
filed, (U.S. June 4, 2020) (No. 19-1339); see also Mazza v.
Am. Honda Motor Co., 666 F.3d 581, 591–94 (9th Cir.
2012); Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180,
1189 (9th Cir. 2001), amended on denial of reh’g, 273 F.3d
1266 (9th Cir.)). When the relevant state laws differ in
material ways, a court may have to decide which state’s or
states’ law applies before it can determine whether common
questions of law or fact predominate. See Zinser, 253 F.3d
at 1189.
In our prior decisions, we have outlined the contours of
the predominance determination in the context of variations
in state law. In Hanlon v. Chrysler Corp., we affirmed the
12 JABBARI V. FARMER
district court’s certification of a settlement class asserting
various consumer protection causes of action without
requiring a choice-of-law analysis. 150 F.3d 1011, 1023–24
(9th Cir. 1998), overruled on other grounds by Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338 (2011). We held that
variations in “products liability, breaches of express and
implied warranties, and ‘lemon laws’” across the states did
not defeat predominance because “there were still sufficient
common issues to warrant a class action, particularly
questions of Chrysler’s prior knowledge of the latch
deficiency, the design defect, and a damages remedy.” Id.at 1022–23. A conclusion as to which state’s law applied
was not necessary to the predominance determination in that
case because the law of each state at issue shared common
questions that were central to the resolution of the claims and
capable of resolution in one fell swoop.
In Mazza, which involved a class certification for trial,
we came to the opposite conclusion. There, we held that the
district court abused its discretion by certifying a nationwide
class because the district court erroneously applied
California law to the entire class. Mazza, 666 F.3d at 589–
90. In applying California’s governmental-interest test, we
identified material differences in the relevant state laws,
such as differing scienter and reliance requirements. Id.at 590–91. We did not hold that no class could exist,
especially given the possibility of subclasses, but only that
the class as certified was the result of an erroneous choice-
of-law analysis. Id. at 594. Our predominance holding, if
any, was thus implicit. See In re Hyundai & Kia Fuel Econ.
Litig. (Hyundai I), 881 F.3d 679, 692–93 (9th Cir. 2018),
rev’d en banc, 926 F.3d 539 (9th Cir. 2019).
Hanlon affirmed a settlement class’s certification
whereas Mazza reversed a certification for trial. Those cases
JABBARI V. FARMER 13
align with the general rule that predominance is easier to
satisfy in the settlement context. Hyundai II, 926 F.3d
at 558. But the imprecise line between Hanlon and Mazza
nevertheless blurred.
The three-judge panel’s and en banc panel’s decisions in
Hyundai are illustrative. In that case, a putative class of
consumers who sued the automaker Hyundai under
California consumer-protection law, among other claims,
alleging that Hyundai “misled consumers throughout the
United States by advertising inflated fuel economy
standards” in particular vehicles. Id. at 553.
The district court at first indicated that it was likely to
deny class certification for trial. Hyundai I, 881 F.3d at 696
(citing Mazza, 666 F.3d at 590–92). But later, when asked
to certify a class for settlement, the district court determined
that “such an [extensive choice-of-law] analysis,” as Mazza
required, “was not warranted in the settlement context.” Id.
at 700. Instead, consistent with Hanlon, the district court
held that common questions, such as “[w]hether the fuel
economy statements were in fact accurate” and “whether
defendants knew that their fuel economy statements were
false or misleading,” predominated. Id. at 708 (Nguyen, J.,
dissenting) (alteration in original).
The three-judge panel relied on Mazza to reverse on
appeal. Id. at 702–03 (majority opinion). The panel
reasoned that, “[i]n failing to apply California choice of law
rules, the district court committed a legal error” because,
“[a]s explained in Mazza, the district court was required to
apply California’s choice of law rules.” Id. at 702. The
distinction between certifying a class for trial or settlement,
the panel concluded, was immaterial. Id. at 702–03.
14 JABBARI V. FARMER
The en banc panel reversed on rehearing. Speaking
generally, the en banc panel clarified that “[t]he criteria for
class certification are applied differently in litigation classes
and settlement classes.” Hyundai II, 926 F.3d at 556. In the
settlement context, a district court assessing predominance
“need not inquire whether the case, if tried, would present
intractable management problems.” Id. at 558 (quoting
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997)).
Reaffirming Hanlon, the en banc panel explained that
common issues like whether the fuel economy statements
were inaccurate and whether the automakers knew about the
inaccuracy were the sort of “common course of conduct by
[a] defendant” that can establish predominance. Id. at 559.
Hyundai thus dictates that, as a general rule, a district
court does not commit legal error by not conducting a
choice-of-law analysis, despite variations in state law, before
determining that common issues predominate for a
settlement class. Id. at 562–63 & n.6. 1 For purposes of a
settlement class, differences in state law do not necessarily,
or even often, make a class unmanageable.
IV
Applying Hyundai, we affirm. The district court did not
abuse its discretion in holding that common questions
predominate. Hyundai made clear that it generally is not
legal error to forego a choice-of-law analysis in a settlement-
class predominance inquiry. This principle applies with
1
This is particularly true where, as here, none of the Objectors
presented an adequate choice-of-law analysis to the district court. See
Hyundai II, 926 F.3d at 561–62.
JABBARI V. FARMER 15
even greater force here, where the class is unified by a claim
under federal law.
The district court held that “[d]ifferences among state
laws do not bar certification of the class here, as Plaintiffs
have asserted a claim under a federal statute (the Fair Credit
Reporting Act) that is equally applicable in all states.”
Before we decided Hyundai en banc, Objectors argued that
the district court’s predominance holding was legal error
simply because the court did not conduct a choice-of-law
analysis. As detailed in Section III, Hyundai forecloses that
argument. In re Hyundai & Kia Fuel Econ. Litig. (Hyundai
II), 926 F.3d 539, 561–62 (9th Cir. 2019) (en banc).
This case presents a stronger case than Hyundai for
predominance because Plaintiffs asserted a federal claim
common to all class members. In cases like Hyundai and
Hanlon, a district court must generally assess whether
variations in state law are not so wide as to render the
commonalities insufficient. When a class asserts a federal
claim for all members, the issue is simpler: Is the federal
claim provable collectively and important enough to the
litigation’s resolution to bind the class together? With
Hyundai in hand, this is an easy case.
The FCRA claim is provable collectively. To succeed
on the FCRA claim, Plaintiffs would have to prove that
Wells Fargo willfully used or obtained “consumer reports”
in a statutorily impermissible manner. 15 U.S.C. §§ 1681a,
1681b(f), 1681n(a). Plaintiffs alleged that Wells Fargo did
so in a systematic, institutional manner. The class could
prove that Wells Fargo’s corporate policies constituted a
16 JABBARI V. FARMER
willful 2 act, just as the class in Hanlon could prove that the
defendant knew that the latch design was defective.
150 F.3d 1011, 1023 (9th Cir. 1998); see also Edwards v.
First Am. Corp., 798 F.3d 1172, 1183 (9th Cir. 2015) (“This
common scheme, if true, presents a significant aspect of [the
defendant’s] transactions that warrant class adjudication
. . . .”). This case is thus analogous to consumer fraud cases
where predominance is easier to prove because “[t]his
cohesive group of individuals suffered the same harm in the
same way because of [Wells Fargo’s] alleged conduct.”
Hyundai II, 926 F.3d at 559.
The FCRA claim is important enough bind the class
together. The district court permissibly found that the FCRA
claim gave the best route to certification and recovery, thus
driving the resolution. Nothing in the record indicates to us
that the district court assessed improper factors or erred in
judgment. See Stearns v. Ticketmaster Corp., 655 F.3d
1013, 1018 (9th Cir. 2011), abrogated on other grounds by
Comcast Corp. v. Behrend, 569 U.S. 27 (2013).
Objectors asserted that potential claims under state-law
identity-theft statutes; the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. §§ 1961, et seq.; and
the Stored Communications Act, 18 U.S.C. §§ 2701, et seq.,
surpassed the FCRA claim in importance. But the district
court’s rejection of that argument was not a clear error in
judgment. The court noted that it was “conceivable that
certain state-law identity-theft claims could result in
recovery separate from that available under FCRA,” but
concluded that the FCRA claim, standing alone, provided the
2
Under the FCRA, a “willful” violation includes both knowing and
reckless violations. Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708,
711 n.1 (9th Cir. 2010).
JABBARI V. FARMER 17
class with a reasonable recovery given the feasibility of all
legal options that Plaintiffs and Objectors presented.
Only rarely will a class assert every possible claim that
might offer relief. As a general rule, a court need not assess
the importance of every claim a class might make before
holding that a class satisfies Rule 23(b)(3)’s predominance
requirement.
V
It is generally not legal error for a district court to hold
that a settlement class satisfies predominance, particularly
for a class asserting a unifying federal claim, without first
performing a choice-of-law analysis.
The district court here made no legal error. Nor did the
court abuse its discretion by holding that the class satisfied
Rule 23(b)(3)’s predominance requirement with the FCRA
claim. The FCRA claim unified the class because Plaintiffs
could show that the FCRA’s elements were proven by a
common course of conduct, and the existence of potential
state-law claims did not outweigh the FCRA claim’s
importance.
AFFIRMED.