Wilber

MEMORANDUM *

On March 2, 1999, Curtis and Debra Wilber entered into a retainer with appellants Sullivan, Tabaracci & Rhoades, P.C. and the Snavely Law Firm (“the attorneys”) for representation of claims against a real estate lending company. The retainer provided that the “claims are being asserted in a class action” and described the Wilbers as the class representatives. The retainer provided, “As attorneys for the class, [the attorneys] will be entitled to a portion of any settlement or judgment proceeds.” The retainer did not specify what fees, if any, the attorneys would be owed if the class action were unsuccessful or if a court denied class certification.

During the class action proceedings, the Wilbers filed for bankruptcy. The Bankruptcy Trustee, Appellee Gary Deschenes, substituted for the Wilbers in the class action. The district court denied certification to the proposed class. The district court stated that even if there were a class, the Wilbers could not have served as the class representatives because they did not qualify as members of the putative class. See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir.2003). The Bankruptcy Trustee then…