Ralph Shaffer v. Continental Casualty Company

FILED

NOT FOR PUBLICATION JAN 12 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

RALPH SHAFFER, individually and on No. 08-56124 behalf of all others similarly situated, D.C. No. 2:06-cv-02235-PSG-PJW Plaintiff - Appellee,

v. MEMORANDUM *

CONTINENTAL CASUALTY

COMPANY; CNA FINANCIAL

CORPORATION d/b/a CNA LTC;

VALLEY FORGE LIFE INSURANCE

COMPANY,

Defendants - Appellees,

and

ROBERT M. JOHNSON,

Appellant.

RALPH SHAFFER, individually and on No. 08-56125 behalf of all others similarly situated, D.C. No. 2:06-cv-02235-PSG-PJW Plaintiff - Appellee,

v.

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

CONTINENTAL CASUALTY

COMPANY; CNA FINANCIAL

CORPORATION d/b/a CNA LTC;

VALLEY FORGE LIFE INSURANCE

COMPANY,

Defendants - Appellees,

and

PHYLLIS LANDAU,,

Appellant.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted…

MEMORANDUM **

This dispute arises from the district court’s approval of a nationwide class action settlement between the plaintiffs — a class of long term care insurance policyholders — and the insurance company defendants (“CNA”). On appeal, plaintiff-objectors Phyllis Landau and Robert Johnson contend the district court made several errors when it approved the settlement. We affirm.

1. The district court did not abuse its discretion when it found the class action settlement was fundamentally fair, reasonable, and adequate. A district court may approve a class action settlement “only after a hearing and on finding that it is fair, reasonable, and adequate.” Fed. R.Civ.P. 28(e). A “higher standard of fairness” is required where, as here, settlement negotiations occurred before class certification. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.1998). The district court must “explore[ ] comprehensively” relevant factors, such as:

Id. We reverse a district court’s decision to approve a settlement “only upon a strong showing that the district court’s decision was a clear abuse of discretion.” Id. (citation omitted). Here, there was no such abuse of discretion.

The…

concurring.

I concur in the memorandum disposition. I write separately because I think we should have dismissed Phyllis Landau’s appeal for lack of jurisdiction. 1 Res judi-cata barred Landau from becoming a class member. Because Landau was precluded from becoming a class member, she was not injured by the settlement and lacks standing to appeal. See United States v. Chesnoff, 62 F.3d 1144, 1145 (9th Cir.1995) (holding that a party lacks standing to appeal a lower court’s order if that party is not injured by the order). Thus, we should have dismissed Landau’s appeal. Nevertheless, that would not change the outcome of this case: the district court’s approval of the class action settlement should be affirmed.

Landau, a Pennsylvania resident, brought a claim against CNA in Illinois state court under the Illinois Consumer Fraud Act. Landau v. CNA Fin. Corp., 381 Ill.App.3d 61 , 319 Ill.Dec. 642 , 886 N.E.2d 405, 407 (2008). She brought the claim on behalf of herself and a nationwide class and alleged CNA, “through uniform deceptive sales and marketing practices,” misled putative class members into purchasing long term care insurance. Id. The trial court dismissed Landau’s claim…