Williams v. Wells Fargo Bank, N.A. et al

Filing 102

ORDER RE CONSOLIDATION AND INTERIM LEAD COUNSEL. Signed by Judge James Donato on 1/18/2023. (jdlc3, COURT STAFF) (Filed on 1/18/2023)

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Case 3:22-cv-00990-JD Document 102 Filed 01/18/23 Page 1 of 6 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 IN RE WELLS FARGO MORTGAGE DISCRIMINATION LITIGATION Master File No. 3:22-cv-00990-JD ORDER RE CONSOLIDATION AND INTERIM LEAD COUNSEL 10 United States District Court Northern District of California 11 12 Plaintiffs in six putative class actions have sued defendants Wells Fargo Bank, N.A., Wells 13 Fargo & Co., and Wells Fargo Home Mortgage, Inc. (Wells Fargo) on allegations of 14 discrimination with respect to residential mortgage and refinance practices. Each putative class 15 action brings claims against Wells Fargo for violations of the Equal Credit Opportunity Act, 15 16 U.S.C. § 1691 et seq., and the Fair Housing Act, 42 U.S.C. § 3601 et seq., among other related 17 federal and state law claims that vary by complaint. See Williams v. Wells Fargo Bank, N.A., No. 18 3:22-cv-00990-JD, Dkt. No. 22; Braxton v. Wells Fargo Bank, N.A., No. 3:22-cv-01748-JD, Dkt. 19 No. 14; Pope v. Wells Fargo Bank, N.A., No. 3:22-cv-01793-JD, Dkt. No. 6; Thomas v. Wells 20 Fargo & Co., No. 3:22-cv-01931-JD, Dkt. No. 1; Ebo v. Wells Fargo Bank, N.A., No. 3:22-cv- 21 02535-JD, Dkt. No. 42; Perkins v. Wells Fargo, N.A., No. 3:22-cv-03455-JD, Dkt. No. 1. 22 The first case to be filed, Williams, seeks to represent a class of “Black and/or African 23 American applicants or borrowers who applied for, received, or maintained credit from [Wells 24 Fargo] related to residential real estate and who were subjected to discrimination by [Wells Fargo] 25 due to their race.” Williams, Dkt. No. 22 ¶ 44. The second case, Braxton, focuses on 26 discrimination in refinance transactions. See Braxton, Dkt. No. 14 ¶ 146. The other cases also 27 allege discriminatory practices against racial minorities for home loan origination and/or 28 refinance. See, e.g., Pope, Dkt. No. 6 ¶ 34; Perkins, Dkt. No. 1 ¶ 56. Case 3:22-cv-00990-JD Document 102 Filed 01/18/23 Page 2 of 6 1 2 on the same basic common questions of law and fact: namely, whether plaintiffs can prove 3 disparate treatment . . . or disparate impact . . . and if they can, whether that conduct violates 4 federal or California law.” Williams, Dkt. No. 63 at 1. Some plaintiffs opposed Wells Fargo’s 5 motion to consolidate, see Williams, Dkt. Nos. 70, 82, some indicated their support for Wells 6 Fargo’s motion, see Perkins, Dkt. No. 38, and others made their own proposals for consolidation, 7 see, e.g., Pope, Dkt. No. 28. The Court held a hearing to discuss the matter, which confirmed that 8 consolidation would serve judicial efficiency and promote a fair resolution of this litigation. 9 Williams, Dkt. No. 93. Plaintiffs were directed “to meet and confer with each other, and then with 10 11 United States District Court Northern District of California Wells Fargo proposed a consolidation of the cases on the grounds that they are “predicated Wells Fargo, to discuss how to consolidate these cases.” Id. at 2. Plaintiffs now jointly propose filing two complaints. The first would be “on behalf of a 12 class of Black applicants and borrowers, including origination and refinance mortgages.” 13 Williams, Dkt. No. 101 at 7. The second would be “on behalf of a class of non-Black protected 14 minorities, including both loan origination and refinance applicants.” Id. They justify this two- 15 complaint approach by pointing to “the extent of discrimination suffered by Black applicants and 16 the bias specific to Black applicants.” Id. at 8. Wells Fargo opposes plaintiffs’ proposal, and 17 suggests that there be one consolidated complaint “with subclasses for the various groups as 18 Plaintiffs see fit to allege,” as well as “consolidated discovery” and “consolidated motion 19 practice.” Id. at 13. 20 The cases will be consolidated into a single action with one amended complaint. The 21 reasons for this are straightforward. All of the complaints allege the same theory, namely that 22 Wells Fargo discriminated against non-white customers with respect to residential mortgages and 23 refinances. It may be, as plaintiffs suggest, that some plaintiffs experienced more discriminatory 24 conduct and impacts than others, but that is a difference of degree and not substance. The record 25 indicates that the documentary evidence and witnesses will likely be the same for all plaintiffs. 26 The legal claims are basically the same. Differences among plaintiffs in treatment and impact can 27 be readily managed in a variety of ways at class certification and other proceedings. If it turns out 28 that the interests between plaintiff groups diverge so much that “independent representation” is 2 Case 3:22-cv-00990-JD Document 102 Filed 01/18/23 Page 3 of 6 1 warranted, Ortiz v. Fibreboard Corp., 527 U.S. 815, 855 (1999), the matter may be raised with the 2 Court as appropriate. 3 Consequently, these cases are ordered to be consolidated into a single action as follows. CONSOLIDATION OF RELATED CASES 4 United States District Court Northern District of California 5 1. This order applies to these cases: 6 a. 3:22-cv-00990-JD 7 b. 3:22-cv-01748-JD 8 c. 3:22-cv-01793-JD 9 d. 3:22-cv-01931-JD 10 e. 3:22-cv-02535-JD 11 f. 3:22-cv-03455-JD 12 2. Pursuant to Federal Rule of Civil Procedure 42(a), these cases are consolidated into 13 Civil Action No. 22-990 for all pretrial proceedings before this Court. All filings and submissions 14 from here on will be captioned: “In re Wells Fargo Mortgage Discrimination Litigation” under 15 the 3:22-cv-00990-JD case number. Plaintiffs will file one amended, consolidated complaint. 16 3. All other underlying cases will be administratively closed by the Clerk of Court. 17 4. If a related action is subsequently filed in or transferred to this District, it will be 18 consolidated into this action for all pretrial purposes. This order will apply to every new related 19 action, without further order of the Court. A party that objects to consolidation, or to any other 20 provision of this order, may file an application for relief within 14 days after an order relating 21 cases is filed. 22 23 24 5. This order is entered without prejudice to the rights of any party to apply for severance of any claim or action, for good cause shown. 6. Pretrial consolidation does not mean that the actions will necessarily be 25 consolidated for trial. That issue will be decided later in the case. It also does not have the effect 26 of making any entity a party in any action in which he, she, or it has not been named, served, or 27 added in accordance with the Federal Rules of Civil Procedure. 28 3 Case 3:22-cv-00990-JD Document 102 Filed 01/18/23 Page 4 of 6 MASTER DOCKET 1 7. 2 3 file in that action will be the master file for every action in the consolidated action. 8. 4 When a pleading applies to some, but not all, of the member actions, the document 5 must list the case number for each individual action to which the document applies immediately 6 under the master caption. Any document not identified in that way will be presumed to apply to 7 all member cases. 8 9. 9 10 United States District Court Northern District of California The docket in Civil Action No. 22-990 will constitute the master docket, and the The parties must promptly file a motion to relate pursuant to Civil Local Rule 3-12 whenever a case that should be consolidated into this action is filed in, or transferred to, this District. If the Court determines that the case is related, the Clerk of the Court is requested to: 11 a. file a copy of this order in the separate file for such action; 12 b. serve on plaintiff’s counsel in the new case a copy of this order; 13 c. direct that this order be served upon defendants in the new case; and 14 d. make the appropriate entry in the master docket sheet (No. 3:22-cv-00990-JD). 10. 15 If there are any disputes about whether a new action should be related to this 16 consolidated action, they must promptly be brought to the Court’s attention or any objection may 17 be deemed waived. INTERIM LEAD COUNSEL 18 11. 19 Pursuant to Federal Rule of Civil Procedure 23(g)(3), several law firms have 20 separately requested appointment as interim lead counsel to represent the putative class of 21 plaintiffs. Williams, Dkt. No. 78; Braxton, Dkt. No. 45; Pope, Dkt. No. 29; Perkins, Dkt. No. 39. 22 Wells Fargo filed an opposition to the appointment of interim lead counsel. Williams, Dkt. No. 80 23 at 1. 24 12. The Court declines to appoint interim lead counsel pending further proceedings. 25 Interim counsel is warranted for this consolidated action, but the current applications did not have 26 an opportunity to address who that should be now that consolidation will be into a single case. 27 Plaintiffs may file a renewed proposal. 28 4 Case 3:22-cv-00990-JD Document 102 Filed 01/18/23 Page 5 of 6 1 The renewed proposal should incorporate the following guidelines. The Court’s 2 goal is that any party seeking fees at the end of this litigation will be able to present to the Court 3 clear and definitive records that were prepared as the fees and costs were incurred. A prolonged 4 forensic accounting exercise or mini-trial on fees and costs is to be avoided. To that end: 5 United States District Court Northern District of California 13. a. At the close of each calendar month, interim lead counsel will make sure that 6 all time has been entered by all timekeepers in final form. By 14 days after 7 each month’s end, interim lead counsel will ensure that a bill for the prior 8 month is finalized, reflecting lead counsel’s review of the billing records and 9 any write-downs or write-offs by interim lead counsel for inefficiencies, 10 duplication of effort, misjudgments in staffing, and the like. These final bills 11 will be kept by lead counsel for each month, and may not be altered. Only 12 these records, prepared contemporaneously with the expenditures, may be used 13 for a fees and costs motion. 14 b. Time will be recorded in one-tenths of an hour. 15 c. Block-billing time records are not permitted. Time must instead be recorded by 16 task. For example, an attorney may not record “7.8 hours” for “work on motion 17 to dismiss opposition.” Instead, the attorney must break out the 7.8 hours 18 specifying the amount of time spent for each specific task performed, e.g., 19 “review and analyze motion to dismiss brief (1.3); team meeting regarding 20 arguments for opposition (.8); legal research re X argument (3.3); draft X 21 section of opposition brief (2.4).” 22 d. Interim lead counsel are free to make staffing decisions as they deem 23 appropriate, but the Court will not permit fees to be recovered for multiple 24 attorneys performing duplicative work. For example, barring an unusual 25 circumstance, only one lawyer should attend a deposition when defending it, 26 and no more than two lawyers should attend when taking a deposition. The 27 Court will not permit the recovery of fees for every attorney from every firm to 28 review each discovery request and response, motion, letter, e-mail, etc. in the 5 Case 3:22-cv-00990-JD Document 102 Filed 01/18/23 Page 6 of 6 1 case. While each attorney should stay informed about the litigation, only the 2 attorneys designated by interim lead counsel to review or summarize pleadings, 3 orders, and communications are working for the common benefit of the putative 4 class, and only their time will be considered for possible payment at the 5 conclusion of this case. e. The Court rarely finds that designation of multiple committees, e.g., separate 6 7 discovery, “liaison,” “executive” committees, and so on, is useful or in the best 8 interests of the putative class. A proposed committee or similar structure 9 should be supported by good reasons. f. Air travel of less than six hours should be in coach class. Travel exceeding six United States District Court Northern District of California 10 11 hours of flight time may be booked in business class. In all cases, flights 12 should be booked at the lowest available fare. g. When overnight travel is necessary, counsel should be mindful in selecting 13 14 reasonable hotel accommodations and restaurants. Per diem expenses for travel 15 days should not exceed $125 per person exclusive of lodging and 16 transportation. h. Failure to adhere to these guidelines -- or the spirit animating them -- will result 17 in the exclusion of consideration for the relevant fee or cost request. 18 19 14. A renewed application for appointment of interim lead counsel must be filed by 20 February 13, 2023. Wells Fargo may file a response by February 20, 2023. No other party may 21 file an opposition without the Court’s prior approval. The Court will set a date for the filing of the 22 consolidated complaint after the appointment of interim lead counsel. 23 24 IT IS SO ORDERED. Dated: January 18, 2023 25 26 JAMES DONATO United States District Judge 27 28 6

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