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holding that the district court should have used the lodestar to calculate attorney's fees where injunctive relief was sought and no common fund was created
Summary of this case from Moreno v. S.F. Bay Area Rapid Transit Dist.Opinion
No. 08-15378.
Argued and Submitted' February 8, 2010.
Filed February 22, 2010.
Gail Killefer, Esquire, San Francisco, CA, Douglas Bowdoin, Esquire, Orlando, FL, Jill Bowman, Esquire, Tamra Carsten Givens, Esquire, Kathleen C. Knight, Esquire, Terry A. Smiljanich, James Hoyer Newcomer Smiljanich, Tampa, FL, for Plaintiff-Appellant.
Michael Jan Steiner, Esquire, Mark Lonergan, Esquire, Lindsay J. Nichols, Esquire, Severson Werson, San Francisco, CA, for Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding. D.C. No. CV-05-03403-CRB.
Before: GOODWIN, TROTT and IKUTA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
This court may review a contested award of attorneys' fees despite settlement of the underlying dispute; the prevailing party has no obligation to make an express reservation of the right to appeal the award of attorneys' fees. See, e.g., Lobatz v. U.S. W. Cellular of Cal., Inc., 222 F.3d 1142, 1146-47 (9th Cir. 2000). Nor does the language of the Settlement Agreement provide any bar to Yeagley's pursuit of this appeal. The Settlement Agreement does not specify an agreed-upon attorneys' fee, but rather reflects that Yeagley will limit the amount of his demand to $1.5 million or less in exchange for Wells Fargo's agreement not to challenge an award in that amount. The Settlement Agreement contains no waiver of an appeal of the award of attorneys' fees applicable to Yeagley.
Under a fee-shifting statute such as the FCRA, see 15 U.S.C. § 1681n(a)(3), the lodestar method is generally the correct method for calculating attorneys' fees. Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003). Although parties can request in their settlement agreement that the district court award attorneys' fees using common-fund principles, id. at 969, 972, the Settlement Agreement here includes no such agreement. Nor does the Settlement Agreement otherwise create a common fund: the settlement did not award any monetary relief to the class, see Zucker v. Occidental Petroleum Corp., 192 F.3d 1323, 1326 (9th Cir. 1999), and this was not "the unusual instance where the value to individual class members of benefits deriving from injunctive relief can be accurately ascertained," Staton, 327 F.3d at 974. Therefore, despite Yeagley's arguments to the district court, the attorneys' fees should have been calculated using the lodestar method, and Yeagley's claim that the district court erred in calculating the amount of the common fund is not germane. Accordingly, we remand for the district court to exercise its broad discretion under the lodestar method to recalculate a reasonable attorneys' fee. See Hensley v. Eckerhart, 461 U.S. 424, 436-37, 103 S.Cc. 1933, 76 L.Ed.2d 40 (1983), abrogated on other grounds by Tex. State Teachers Assoc. v. Garland Indep. Sch. Dist., 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); Passantino v. Johnson Johnson Consumer Prods., Inc., 212 F.3d 493, 518 (9th Cir. 2000).