James Feinman v. Volkswagen Group of America

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: VOLKSWAGEN "CLEAN DIESEL" No. 19-16074
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, D.C. No. 3:15-md-02672-CRB
______________________________
JAMES BEN FEINMAN, MEMORANDUM*
Plaintiff-Appellant,
v.
VOLKSWAGEN GROUP OF AMERICA,
INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted August 11, 2020**
Anchorage, Alaska
Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges.
James B. Feinman appeals the district court’s order granting Volkswagen
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Group of America, Inc. (“Volkswagen”)’s motion to enforce a class settlement
approval order. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.
Because the parties are familiar with the facts and procedural history, we recite
them only as necessary to resolve the issues on appeal.
We review the district court’s order enforcing the class settlement and final
approval order for an abuse of discretion. See Wilcox v. Arpaio, 753 F.3d 872, 875
(9th Cir. 2014); California Dep’t of Soc. Servs. v. Leavitt, 523 F.3d 1025, 1031
(9th Cir. 2008).
1. Feinman’s statutory lien claim under Virginia law was a released
claim under the settlement agreement. We approved the settlement two years ago,
In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prod. Liab. Litig.
(“Volkswagen I”), 895 F.3d 597, 619 (9th Cir. 2018), and subsequently held that
Volkswagen did not agree to compensate non-class counsel such as Feinman under
the settlement agreement, In re Volkswagen “Clean Diesel” Mktg., Sales
Practices, & Prod. Liab. Litig. (“Volkswagen II”), 914 F.3d 623, 646 (9th Cir.
2019). Feinman’s argument that the settlement did not release his statutory lien
claim is contrary to our ruling in Volkswagen II and the plain text of the release
provision in the agreement, which explicitly releases “any claims for . . . liens, . . .
attorneys’ . . . or other litigation fees . . . .” Similarly, Feinman’s arguments that he
is not a member of the class and that his clients had no authority to release his
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statutory claim are nothing more than a belated objection to the settlement. See
Slaven v. Am. Trading Transp. Co., 146 F.3d 1066, 1069 (9th Cir. 1998) (holding
that failure “to raise an objection to an issue before judgment” amounts to waiver
(citing Gen. Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500, 1507 (9th Cir.
1995))).
2. Feinman’s claim that the district court’s injunction does not comply
with the Anti-Injunction Act, 28 U.S.C. § 2283, is without merit and
misapprehends the order under review on appeal. Volkswagen moved to enforce
the district court’s order granting final approval of the settlement—a prior order
that enjoined class members and persons acting on their behalf from pursuing any
claims released under the settlement agreement against Volkswagen. Again, we
upheld that underlying final approval order two years ago in Volkswagen I, 895
F.3d at 619, and the district court explicitly retained jurisdiction to enforce the
settlement and order. Feinman’s challenge to the validity of an order already
affirmed on appeal has no merit, and the district court properly enforced its prior
order and injunction. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1025 (9th Cir.
1998) (“Although comity requires federal courts to exercise extreme caution in
interfering with state litigation, federal courts have the power to do so when their
jurisdiction is threatened”), overruled on other grounds by Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338 (2011); Arata v. Nu Skin Int’l, Inc., 96 F.3d 1265, 1269 (9th
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Cir. 1996) (concluding that district court had subject matter jurisdiction to enforce
the agreement where it “explicitly reserve[d] ‘continuing and exclusive
jurisdiction’ to enforce the settlement”).
3. Feinman’s remaining arguments, including his claim that the
settlement voids Virginia’s public policy and violates the Supremacy Clause and
the Full Faith and Credit Clause of the United States Constitution, are unsupported
and also amount to belated attempts to collaterally attack the settlement and final
approval order. As the district court noted, Volkswagen has disbursed the
settlement funds to class members, and Feinman remains free to collect his fees
from his clients.
AFFIRMED.
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