NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 16 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: VOLKSWAGEN “CLEAN DIESEL” No. 22-16898

MARKETING, SALES PRACTICES, AND

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

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MEMORANDUM*

SETTLEMENT CLASS

REPRESENTATIVES AND SETTLEMENT

CLASS COUNSEL,

Plaintiffs-Appellees,

v.

WESLEY VINCENT LOCHRIDGE, class member,

Objector-Appellant,

v.

VOLKSWAGEN GROUP OF AMERICA,

INC., et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted April 10, 2024** San Francisco, California

Before: TASHIMA, GRABER, and SUNG, Circuit Judges.

Objector Wesley Lochridge appeals the district court’s approval of the class

settlement entered into between Plaintiffs and Defendants. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and dismiss this appeal as moot.

When circumstances following an appeal may render a case moot, we

consider mootness in the first instance. See Bain v. Cal. Tchrs. Ass’n, 891 F.3d

1206, 1211–12 (9th Cir. 2018). “The party asserting mootness bears the burden of

establishing that there is no effective relief remaining that the court could provide.”

S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1134 (9th Cir. 2004). We

may consider evidence submitted on appeal to evaluate mootness. See Camreta v.

Greene, 563 U.S. 692, 710–11 (2011).

Plaintiffs have met their burden to show that Lochridge’s appeal is moot

because, while this appeal was pending, Lochridge released Defendants of any and

all claims he could bring against them. Undisputed evidence shows that Lochridge

received and cashed a check from Defendants in payment for his settlement claim.

Section 10.6 of the Settlement Agreement states that “[e]ach Class Member who

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 receives a Settlement Benefit . . . shall, as a precondition to receiving such

payment, be required to agree to an Individual Release of their claims.” Further,

the Settlement Agreement provides that “[t]he Individual Release will be effective

upon acceptance of the Settlement Benefit and shall remain effective even if the

Final Approval Order is reversed and/or vacated on appeal, or if this Class Action

Agreement is abrogated or otherwise voided in whole or in part.” See Edgar v.

Hitch, 294 P.2d 3, 5 (Cal. 1956) (stating that, under California law, which controls

the interpretation of the Settlement Agreement here, the cashing of a check suffices

to show agreement and acceptance of release). Thus, by accepting the settlement

payment, Lochridge effectuated the Individual Release. And, because the

Individual Release remains in effect even if the settlement approval is “reversed

and/or vacated on appeal,” there is no relief we can provide.

Lochridge raises several counter-arguments, but none is persuasive. First, he

argues that if he prevails on appeal, the Individual Release would be undone. He

claims that Low v. Trump University, LLC, 881 F.3d 1111 (9th Cir. 2018), dictates

that outcome. But Low is distinguishable. Although the Low objector “submitted a

settlement claim,” Id. at 1117 n.3, she did not receive and cash a check in

settlement of that claim, see id. at 1116–17. Accordingly, Low did not address the

mootness issue presented here. Relatedly, nothing in Low contemplated a release,

like the one at issue here, which explicitly states that the release remains effective

3 even if the related settlement agreement is vacated. Second, Lochridge repeatedly

insinuates that class counsel acted improperly by directing the Claims

Administrator to contact Lochridge directly, and not contacting Lochridge’s

counsel. But Lochridge presents no evidence to this effect, and an affidavit from

the Claims Administrator states that she processed Lochridge’s claim like any

other, and mailed Lochridge’s check to the address Lochridge provided on his

claims form. Without contrary evidence, we cannot credit Lochridge’s allegations.

Finally, Lochridge argues that he properly rescinded his Individual Release.

Although Lochridge appears to have followed the proper procedure for recission,

he does not show that he had a valid basis for recission. Under California law, a

party seeking recission must show that consent “was given by mistake, or obtained

through duress, menace, fraud, or undue influence.” Cal. Civ. Code § 1689(b)(1).

Lochridge does not argue that any of those grounds for recission exists, and the

evidence does not demonstrate otherwise.

DISMISSED.

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