NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 22 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: VOLKSWAGEN "CLEAN DIESEL" No. 17-16066

MARKETING, SALES PRACTICES, AND

PRODUCTS LIABILITY LITIGATION, D.C. No. 3:15-md-02672-CRB ______________________________

JASON HILL; RAY PRECIADO; SUSAN MEMORANDUM*

TARRENCE; STEVEN R. THORNTON;

ANNE DUNCAN ARGENTO; SIMON W.

BEAVEN; JULIET BRODIE; SARAH

BURT; AIMEE EPSTEIN; GEORGE

FARQUAR; MARK HOULE; REBECCA

KAPLAN; HELEN KOISK-WESTLY;

RAYMOND KREIN; LEO WINTERNITZ;

MARCUS ALEXANDER DOEGE;

LESLIE MACLISE-KANE; TIMOTHY

WATSON; FARRAH P. BELL; JERRY

LAWHON; MICHAEL R. CRUISE; JOHN

C. DUFURRENA; SCOTT BAHR; KARL

FRY; CESAR OLMOS; BRITNEY LYNNE

SCHNATHORST; CARLA BERG;

AARON JOY; ERIC DAVIDSON WHITE;

FLOYD BECK WARREN; THOMAS J.

BUCHBERGER; RUSSELL EVANS;

CARMEL RUBIN; DANIEL SULLIVAN;

MATTHEW CURE; DENISE DE FIESTA;

MARK ROVNER; WOLFGANG

STEUDEL; ANNE MAHLE; DAVID

MCCARTHY; SCOTT MOEN; RYAN

JOSEPH SCHUETTE; MEGAN

WALAWENDER; JOSEPH MORREY;

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

MICHAEL LORENZ; NANCY L. STIREK;

REBECCA PERLMUTTER; ADDISON

MINOTT; RICHARD GROGAN; ALAN

BANDICS; MELANI BUCHANAN

FARMER; KEVIN BEDARD;

ELIZABETH BEDARD; CYNTHIA R.

KIRTLAND; MICHAEL CHARLES

KRIMMELBEIN; WILL HARLAN;

HEATHER GREENFIELD; THOMAS W.

AYALA; HERBERT YUSSIM;

NICHOLAS BOND; BRIAN J. BIALECKI;

KATHERINE MEHLS; WHITNEY

POWERS; ROY MCNEAL; BRETT

ALTERS; KELLY R. KING; RACHEL

OTTO; WILLIAM ANDREW WILSON;

DAVID EBENSTEIN; MARK

SCHUMACHER; CHAD DIAL; JOSEPH

HERR; KURT MALLERY; MARION B.

MOORE; LAURA SWENSON; BRIAN

NICHOLAS MILLS; STEPHEN VERNER,

Plaintiffs-Appellees,

AUTOPORT, LLC,

Objector-Appellant,

v.

VOLKSWAGEN GROUP OF AMERICA,

INC.; VOLKSWAGEN, AG; AUDI, AG;

AUDI OF AMERICA, LLC; PORSCHE

CARS NORTH AMERICA, INC.;

ROBERT BOSCH GMBH; ROBERT

BOSCH, LLC,

Defendants-Appellees.

Appeal from the United States District Court

2 for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted December 19, 2018 San Francisco, California

Before: M. SMITH and NGUYEN, Circuit Judges, and RESTANI,** Judge.

Attorneys for Objector-Appellant Autoport, LLC (Autoport) represented it in

a state-court action against Volkswagen, and also provided guidance to class

counsel in this underlying multidistrict litigation (MDL). Autoport filed a motion

for attorneys’ fees to recover for these services, which the district court denied

along with 243 other fee motions. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

Much of the relevant factual background for this appeal is set forth in the

concurrently filed opinion in Bishop, Heenan & Davies v. Volkswagen Group of

America, Inc., Nos. 17-16020+. As part of the flurry of litigation that followed

public disclosure of Volkswagen’s use of “defeat devices” in its purportedly “clean

diesel” vehicles, Autoport and its lawyers represented non-Volkswagen dealers

(Non-VW Dealers) in Missouri state court.1 Upon reviewing the proposed MDL

settlement filed with the district court (the Settlement), one of Autoport’s lawyers,

** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. 1 Autoport’s Missouri litigation was not consolidated with the other Volkswagen cases or transferred to the district court.

3 Allen P. Press of the firm Jacobson Press & Fields P.C. (JPF), noted that its text

might have excluded Non-VW Dealers—an omission that, as confirmed by one of

Volkswagen’s lawyers, would have been inadvertent. Press proceeded to engage

with the MDL’s Plaintiffs’ Steering Committee (PSC), and after a “lengthy email

exchange with various PSC members,” the MDL’s “Lead Counsel stated that

dealers were included in the Settlement.” The final Settlement text remedied these

potential errors and included Non-VW Dealers. Autoport subsequently filed a

motion for attorneys’ fees with the district court, seeking compensation primarily

for JPF’s efforts in Missouri state court. The district court denied Autoport’s

motion, and this appeal followed.

1. As discussed at greater length in the Bishop, Heenan & Davies opinion, at

the commencement of the MDL, the district court issued a series of pretrial orders

(PTOs) to govern the litigation. PTO No. 11 mandated that “[t]he recovery of

common benefit attorneys’ fees and cost reimbursements will be limited to

‘Participating Counsel,’” meaning Lead Counsel, the PSC, and “any other counsel

authorized by Lead Counsel to perform work that may be considered for common

benefit compensation, and/or counsel who have been specifically approved by this

Court as Participating Counsel prior to incurring any such cost or expense.” PTO

No. 11 further explained that “Participating Counsel shall be eligible to receive

common benefit attorneys’ fees and reimbursement of costs and expenses only if

4 the time expended, costs incurred, and activity in question were (a) for the

common benefit of Plaintiffs; (b) timely submitted; and (c) reasonable.”

The $404,646.27 in fees that Autoport sought in its motion were not merely

compensation for Press’s work with the Settlement text, but were instead primarily

for the work JPF performed for Autoport in Missouri state court. That wholly

separate litigation was not consolidated as part of the MDL, and there is no

evidence that Lead Counsel requested and authorized the 287.3 hours spent

prosecuting that state-court action, as required by PTO No. 11.

As for the approximately thirteen hours of work that Press spent working on

the Settlement text, although his efforts arguably benefited the MDL class, it is not

clear from the record that Press qualified as “counsel authorized by Lead Counsel

to perform work that may be considered for common benefit compensation, and/or

counsel who have been specifically approved by this Court as Participating

Counsel prior to incurring any such cost or expense.” Press’s declaration,

uncontested though it may be, demonstrated only that a representative of the PSC

discussed the Settlement with him; it does not necessarily follow that the work was

sanctioned beforehand, or that Press or JPF qualified as counsel authorized by

Lead Counsel to perform work. “A district court abuses its discretion if its

decision is based on an erroneous conclusion of law or if the record contains no

evidence on which it rationally could have based its decision.” Stanger v. China

5 Elec. Motor, Inc., 812 F.3d 734, 738 (9th Cir. 2016) (quoting In re Mercury

Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010)). Here, the

evidence in the record supports the district court’s conclusion that Autoport did not

comply with PTO No. 11, as there is no evidence that Lead Counsel or the court

actually authorized Press’s work on the Settlement. Therefore, the district court

did not abuse its discretion when it concluded that none of the work for which

Autoport sought attorneys’ fees, even those efforts that arguably benefited the

class, could be compensated.2

2. Autoport also argues that the district court abused its discretion by “fail[ing]

to consider any of the facts on which the fee request was based” and “group[ing]

the lawyers’ request in with those of numerous other lawyers who did not create

any benefit for the Class.” However, as discussed in the Bishop, Heenan & Davies

opinion, the district court only needed to “articulate with sufficient clarity the

manner in which it ma[de] its determination.” Carter v. Caleb Brett LLC, 757 F.3d

866, 869 (9th Cir. 2014) (quoting Quesada v. Thomason, 850 F.2d 537, 539 (9th

Cir. 1988)). Here, the district court explained the applicable standard and then

concluded—correctly and specifically—that Autoport’s work was not “requested

2 Furthermore, although not explicitly addressed by the district court, there is no evidence that Autoport followed the compensation procedure required by PTO No. 11. This would be yet another ground for denying its fee motion, apart from whether Lead Counsel authorized Press to perform work on the Settlement.

6 and authorized” by Lead Counsel.3 Although brief, the district court’s explanation

sufficiently articulated the reason for its denial.

AFFIRMED.

3 We note a slight error in the district court’s order. In a footnote, the court explained that certain “non-class attorneys assert that they made suggestions to the PSC regarding the language used in the consolidated class action complaints,” and cited to the specific docket number of Autoport’s motion. The court concluded, “Those attorneys, however, have not submitted evidence that Lead Counsel requested and authorized this work.” This description is not entirely accurate; Autoport’s attorney made a suggestion to the PSC regarding the text of the Settlement, not the text of the MDL’s consolidated class action complaint. However, this minor error does not change the fact that, as the district court correctly noted, Autoport did “not submit[] evidence that Lead Counsel requested and authorized” Press’s work.

7