Nicholas Tchikovani v. Citicorp Investment Services I

FILED
NOT FOR PUBLICATION APR 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHAD THRONE, individually, and on No. 09-55114
behalf of other members of the general
public similarly situated, D.C. No. 2:07-cv-00113-ABC-RZ
Plaintiff - Movant,
MEMORANDUM *
and
NICHOLAS TCHIKOVANI,
Plaintiff - Appellant,
v.
CITICORP INVESTMENT SERVICES
INC.,
Defendant - Appellee.
CHAD THRONE, individually, and on No. 09-55253
behalf of other members of the general
public similarly situated, D.C. No. 2:07-cv-00113-ABC-RZ
Plaintiff - Movant,
and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NICHOLAS TCHIKOVANI,
Plaintiff - Appellant,
v.
CITICORP INVESTMENT SERVICES
INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Argued and Submitted April 6, 2010
Pasadena, California
Before: PREGERSON and THOMPSON, Circuit Judges, and GRAHAM, Senior
District Judge.**
Plaintiff-Appellant, Nicholas Tchikovani (“Tchikovani”) appeals the district
court’s denial of his motion for attorneys’ fees.
Tchikovani and Chad Throne (“Throne”) were both named plaintiffs in
separate class actions against Citicorp. At Throne’s request, the district court
consolidated the Tchikovani and Throne actions. Throne’s attorneys became lead
counsel, and Tchikovani’s attorneys became non-lead counsel in that consolidated
action.
**
The Honorable James L. Graham, Senior United States District Judge
for the Southern District of Ohio, sitting by designation.
Before the Tchikovani and Throne actions were consolidated, Throne’s
attorneys reached a stipulated settlement agreement with Citicorp. Tchikovani’s
attorneys were not involved in the negotiations that resulted in that stipulated
settlement agreement. After Throne and Citicorp agreed to a pre-final draft of the
settlement, Throne sent a copy of the draft to Tchikovani’s attorneys. Tchikovani’s
attorneys suggested some minor changes to the settlement. Tchikovani’s attorneys
were not otherwise involved in negotiating the settlement, and the settlement fund
amount did not change after Tchikovani’s attorneys reviewed the settlement
agreement.
The district court found that Tchikovani was not entitled to recover
attorneys’ fees because Tchikovani’s attorneys were not actively involved in
reaching the settlement and their work did not substantially benefit the class. See
Fischel v. Equitable Life Assurance Soc’y of the U.S., 307 F.3d 997, 1006 (9th Cir.
2002); In re FPI/Agretech Sec. Litig., 105 F.3d 469, 475 (9th Cir. 1997); Chem.
Bank v. Jaffe & Schlesinger, P.A., 19 F.3d 1306, 1308 (9th Cir. 1994). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm for the reasons stated by the
district court.
We note there is also an additional independent basis for affirming the
district court. The settlement agreement in this case contained an express waiver
of the right to appeal: “With the exception of a right to appeal the reduction of any
award of attorneys’ fees and costs, as provided herein, the Named Plaintiffs and
[Citigroup] hereby waive their right to appeal or seek other judicial review of any
order that is materially consistent with the terms of this Agreement.” See Guseinov
v. Burns, 51 Cal. Rptr. 3d 903, 909-10 (Cal. Ct. App. 2006); Pratt v. Gursey,
Schneider & Co., 95 Cal. Rptr. 2d 695, 698-99 (Cal. Ct. App. 2000).1 Thus, by
agreeing to the settlement, Tchikovani waived his right to appeal the district
court’s denial of his motion for attorneys’ fees unless the district court reduced the
total award of attorneys’ fees below the amount provided for in the settlement. Cf.
Guseinov, 51 Cal. Rptr. at 910 (explaining that language waiving right to appeal an
award and “any order” pertaining to the award is an express waiver of the right to
appeal judicial action enforcing the award).
The settlement provided that lead class counsel would move for up to
$1,437,500 in attorneys’ fees. Throne’s attorneys, lead class counsel, did move for
$1,437,500 in attorneys’ fees. The district court granted that motion, and the
district court did not reduce that award. Thus, there had been no reduction to the
award of attorneys’ fees as provided for in the settlement agreement.
1
Interpretation of the settlement agreement is governed by California law.
Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989) (“The construction and
enforcement of settlement agreements are governed by principles of local law
which apply to interpretation of contracts generally.”); see, e.g., Navarro v.
Mukasey, 518 F.3d 729, 733 (9th Cir. 2008) (applying California contract law to
interpret a class action settlement agreement negotiated in California)
Consequently, Tchikovani waived his right to pursue this appeal. For this reason
too, we affirm the district court.
Finally, Throne requests sanctions against Tchikovani for filing a frivolous
appeal. We may award damages and costs for an appeal “when the results are
obvious or the arguments are wholly without merit.” NLRB v. Unbelievable, Inc.,
71 F.3d 1434, 1441 (9th Cir. 1995); see also Fed. R. App. P. 38. Because
Tchikovani’s contentions on appeal are wholly without merit, we award Throne
full attorneys’ fees and costs for this appeal and refer the calculation of the amount
of those fees and costs to the Appellate Commissioner, who is authorized to enter
judgment thereon. See 9th Cir. R. 39-1.9.
Judgment of the district court AFFIRMED. Throne’s request for
attorneys’ fees and costs associated with this appeal GRANTED.