Yeagley v. Wells Fargo & Company et al

Filing 208

USCA MEMORANDUM re 176 Notice of Appeal filed by Stephen C. Yeagley. The decision of the district court is Reversed and Remanded. (mcl, COURT STAFF) (Filed on 2/25/2010)

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F IL E D
N O T FOR PUBLICATION U N IT E D STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
FEB 22 2010
MOLLY C. DWYER, CLERK
U . S . C O U R T OF APPE A L S

STEPHEN C. YEAGLEY, on behalf of h im self and those similarly situated, Plaintiff - Appellant, v. W E L L S FARGO & COMPANY; WELLS F A R G O BANK, N.A., Defendants - Appellees.

N o . 08-15378 D .C . No. CV-05-03403-CRB

M EM O RA ND UM *

A p p e al from the United States District Court fo r the Northern District of California C h arles R. Breyer, District Judge, Presiding A rg u ed and Submitted February 8, 2010 S an Francisco, California B efo re: GOODWIN, TROTT and IKUTA, Circuit Judges.

T h is court may review a contested award of attorneys' fees despite settlem en t of the underlying dispute; the prevailing party has no obligation to make an express reservation of the right to appeal the award of attorneys' fees. See, e.g.,

This disposition is not appropriate for publication and is not precedent ex cep t as provided by 9th Cir. R. 36-3.

*

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Lobatz v. U.S. W. Cellular of Cal., Inc., 222 F.3d 1142, 1146­47 (9th Cir. 2000). Nor does the language of the Settlement Agreement provide any bar to Yeagley's p u rsu it of this appeal. The Settlement Agreement does not specify an agreed-upon atto rn eys' fee, but rather reflects that Yeagley will limit the amount of his demand to $1.5 million or less in exchange for Wells Fargo's agreement not to challenge an a w a rd in that amount. The Settlement Agreement contains no waiver of an appeal o f the award of attorneys' fees applicable to Yeagley. U n d er a fee-shifting statute such as the FCRA, see 15 U.S.C. § 1681n(a)(3), th e lodestar method is generally the correct method for calculating attorneys' fees. Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003). Although parties can r eq u e st in their settlement agreement that the district court award attorneys' fees u sin g common-fund principles, id. at 969, 972, the Settlement Agreement here in clu d es no such agreement. Nor does the Settlement Agreement otherwise create a common fund: the settlement did not award any monetary relief to the class, see Z u cker v. Occidental Petroleum Corp., 192 F.3d 1323, 1326 (9th Cir. 1999), and th is was not "the unusual instance where the value to individual class members of b e n e f its deriving from injunctive relief can be accurately ascertained," Staton, 327 F .3 d at 974. Therefore, despite Yeagley's arguments to the district court, the atto rn eys' fees should have been calculated using the lodestar method, and Y eag ley's claim that the district court erred in calculating the amount of the

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common fund is not germane. Accordingly, we remand for the district court to ex ercise its broad discretion under the lodestar method to recalculate a reasonable atto rn eys' fee. See Hensley v. Eckerhart, 461 U.S. 424, 436­37 (1983), abrogated o n other grounds by Tex. State Teachers Assoc. v. Garland Indep. Sch. Dist., 489 U .S . 782 (1989); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F .3 d 493, 518 (9th Cir. 2000). R E V E R S E D AND REMANDED.