No. 18-16285

No. 18-16285Consolidated with 18-16213, 18-16223, 18-16236, 18-16284, 18-16315,

and 18-16317__________________________________________________________________

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

__________________________________________________________________

CHARLES DARBYSHIRE, GUARDIAN OF ROY GEIRSBACH,Objector-Appellant,

SHAHRIARI JABBARI and KAYLEE HEFFELFINGER, on behalf of themselvesand all others similarly situated,

Plaintiffs-Appellees,vs.

WELLS FARGO & COMPANY and WELLS FARGO BANK, N.A.,Defendants-Appellees.

On Appeal from the United States District for the Northern District ofCalifornia, The Honorable Vince Chhabria Presiding

No. 15-cv-02159-VC

OPENING BRIEF OF CHARLES DARBYSHIRE,

GUARDIAN OF ROY GEIRSBACH, OBJECTOR-APPELLANT

N. Albert Bacharach, Jr.Attorney for Objector-Appellant Charles Darbyshire, Florida Bar No.: 209783N. ALBERT BACHARACH, JR., P.A.4128 NW 13th StreetGainesville, FL 32609-1807(352)[email protected]@nabjr.com

Case: 18-16317, 11/05/2018, ID: 11074307, DktEntry: 42, Page 1 of 41

TABLE OF CONTENTS

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Statement of District Court Subject-Matter Jurisdiction and This Court’s AppellateJurisdiction pursuant to Circuit Rule 28-2.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Issues and the Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Summary of the Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Argument

I. COMMON ISSUES DO NOT PREDOMINATE IN THE PROPOSEDCLASS ACTION SETTLEMENT BECAUSE OF THE WIDE VARIATIONIN STATE CONSUMER PROTECTION LAWS GOVERNING APPELLEEWELLS FARGO’S MISCONDUCT. THUS, AS A MATTER OF LAW, THEDISTRICT COURT’S APPROVAL OF THE PROPOSED CLASS ACTIONSETTLEMENT WAS IN ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Statement of Related Cases Under Circuit Rule 28-2.6. . . . . . . . . . . . . . . . . . . . . 34

Certificate of Compliance with 9th Circuit Rule 32-1(a), pursuant to 9th Circuit

Rule 32-1(e) for Case Number 18-16285 . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 35

Proof of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

i


TABLE OF AUTHORITIES

CASES

American Tobacco Company., 84 F.3d 734 (5th Cir. 1996) . . . . . . . . . . . . . . . . . 26

Amchem Prods, Incorporated v. Windsor, 521 U.S. 591 (1997) . . 18, 21, 27, 29, 30

In re Bluetooth Headset Production Liability Litig., 654 F.3d 935 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 17, 30

Bolin v. Sears, Roebuck and Company, 231 F.3d 970 (5th Cir. 2000) . . . . . . . . . 16

Casey v. Albertson’s Incorporated, 362 F.3d 1254 (9th Cir. 2004) . . . . . . . . . 6, 26

Creative Montessori Learning Ctrs. v. Ashford Gear LLC, 662 F.3d 913 (7th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Devlin v. Scardelletti, 536 U.S. 1 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Espinosa v. Ahearn (In re Hyundai and Kia Fuel Econ. Litig.), 881 F.3d 679 (9th Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 31

In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig. ("Gen. Motors Pickup Litig."), 55 F.3d 768, 820 (3d Cir. 1995) . . . . . . . . . . . 17

Greenberg v. Procter and Gamble Company (In re Dry Max Pampers Litig.),724 F.3d 713 (6th Cir. 2013) . . . . . . . . . . 16, 18

Harman v. Apfel, 211 F.3d 1172 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Hesse v. Sprint Corp., 598 F.3d 581 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . 22

ii


In re Joint Eastern and Southern District Asbestos Litig., 982 F.2d 721 (2d Cir. 1992), modified on reh’g, 993 F.2d 7 (2d Cir. 1993). . . . . . . . . . . . . . 28

Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . 20

In re Literary Works in Electronic Databases Copyright Litigation, 654 F.3d 242 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Mazza v. American Honda Motor Company, 666 F.3d 581 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 24, 25, 29, 30

In re Mexico Money Transfer Litigation, 267 F.3d 743 (7th Cir. 2001) . . . . . 23, 31

Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) . . . . . . . . . . . . . . . . . . . . . . . 21, 27

Perras v. H and R Block, 789 F.3d 914 (8th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 29

Pilgrim v. Universal Health Card, LLC, 660 F.3d 943 (6th Cir. 2011) . . . . . . . . 29

In re Prudential Insurance Company American Sales, 278 F.3d 175 (3d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Reynolds v. Beneficial National Bank, 288 F.3d 277 (7th Cir. 2002) . . . . . . . . . . 19

Staton v. Boeing, 327 F.3d 938 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Strong v. BellSouth Telecomms., Inc., 137 F.3d 844 (5th Cir. 1998) . . . . . . . . . . 17

Synfuel Techs., Incorporated v. DHL Express (USA), Inc., 463 F.3d 646 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Tyson Foods, Incorporated v. Bouaphakeo, 136 S. Ct. 1036, 194 L. Ed. 2d 124 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Universal Health Card, LLC, 660 F.3d 943 (6th Cir. 2011) . . . . . . . . . . . . . . . . . 26

iii


STATUTES, RULES AND REGULATIONS

15 U.S.C. § 1693, et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

15 U.S.C. § 1681, et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

28 U.S.C. § 1332. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

28 U.S.C. § 1332(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

28 U.S.C. § 1332(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Cal. Bus. & Prof. Code §§ 17200, et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Fed. R. App. P. 4(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Fed. R. App. P. 32(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Fed. R. Civ. P. 23(c)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Fed. R. Civ. P. 23(e)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

iv


STATEMENT OF DISTRICT COURT SUBJECT-MATTERJURISDICTION AND THIS COURT’S APPELLATE

JURISDICTION PURSUANT TO CIRCUIT RULE 28-2.2

The district court had jurisdiction under the Class Action Fairness Act of

2005, 28 U.S.C. § 1332(d)(2), because at least one Class member was of diverse

citizenship from one defendant, there were 100 or more Class members

nationwide, and the aggregate amount in controversy exceeded $5,000,000. (ER

161).

This Court has appellate jurisdiction under 28 U.S.C. § 1291.

On June 14, 2018, the district court entered final judgment under Fed. R.

Civ. Proc. 54(b) with respect to all claims against the Wells Fargo Defendants-

Appellees (ER 3) Objector-Appellant Charles Darbyshire filed a Notice of Appeal

on July 9, 2018 (ER 130); the Notice of Appeal was timely under Fed. R. App. P.

(FRAP) 4(a)(1)(A).

Objector - Appellant Darbyshire, as guardian of class member Roy

Geirsbach, timely objected to the district court’s approval of the proposed

settlement and has standing to appeal the district court’s final approval of a class

action settlement without the need to intervene formally in the case. Devlin v.

Scardelletti, 536 U.S. 1 (2002).

1


BACKGROUND

Defendants Wells Fargo & Company and Wells Fargo Bank, N.A. (Wells

Fargo) provide(s) diversified financial services - principally in the United States -

that include retail, commercial and corporate banking services. Wells Fargo is the

largest U.S. bank as measured by market capitalization. Wells Fargo is a Delaware

corporation with its headquarters located in San Francisco, California. Wells

Fargo has three reportable operating segments, Community Banking, Wholesale

Banking, and Wealth and Investment Management.

At all relevant times, as part of Wells Fargo’s business strategy,

management

emphasized to employees that “cross-selling” was a key part of its strategy to

increase the number of retail products that each of its customers, used. “Cross-

selling is the practice of selling existing customers multiple products. The idea is

that having a greater share of a customer's wallet means it will be tougher for him

to leave the bank. For instance, if your mortgage and checking account are from

the same bank then you're more likely to open up a credit card there too--resulting

in more revenue for the bank1.” Wells Fargo’s cross-selling business model was

1https://www.forbes.com/sites/halahtouryalai/2016/09/13/despite-wells-fargos-fak

2


designed to drive growth by selling new products to existing customers versus

relying on new client growth. Wells Fargo’s stated goal was to sell each customer

at least eight consumer products, a selling motto called “Gr-eight.”

It is now common knowledge that Wells Fargo’s cross-selling strategy was

not focused on or designed to benefit customers, but was instead designed to fulfill

sales quotas or otherwise advance the interests of Wells Fargo and its employees

and increase sources of profitability, while simultaneously burdening customers

with financial products that they did not authorize, need and, in many cases, even

know about. Wells Fargo’s cross-selling strategy was fueled by a business culture

designed to incentivize and reward employees for pushing unneeded products on

customers in order to increase the banks economic growth, without regard for the

financial impact on customers. It is also common knowledge that in order to meet

cross-selling goals set by management, Wells Fargo employees illegally opened

millions of deposit accounts, credit card accounts, credit line accounts, online

banking services accounts, and the like; and in so doing the employees forged

customer signatures, created phoney documents and used various other fraudulent

means to create new product accounts for existing customers without the

knowledge or consent of millions of Wells Fargo’s customers.

e-accounts-fiasco-cross-selling-remains-key-strategy/#179237127cc5

3


In December 2013, the Los Angles Times reported on the sales pressure at

Wells Fargo branches across the country. The newspaper article relied on

interviews with about three dozen former and current Wells Fargo employees,

along with the reporter’s review of both internal Wells Fargo documents and

copies of various lawsuits that had been filed against Wells Fargo. The employees

described how they, fearing retribution from managers, begged friends and family

members to open ghost accounts; opened accounts that they knew customers didn't

want; forged signatures on account paperwork; and falsified phone numbers of

angry customers so they couldn't be reached for customer satisfaction surveys.

About a year and a half later, on May 4, 2015, the Los Angeles Times

reported2 that earlier that day Los Angeles City Attorney, Mike Feuer, had filed a

civil complaint against Wells Fargo under an unfair- business-practices law that

permits attorneys representing large California cities to seek redress for customers

throughout the state. According to the Los Angeles Times the complaint

contended that Wells Fargo employees violated state and federal laws by misusing

confidential information and by failing to notify customers when their personal

data were breached. The lawsuit sought a court order shutting down the alleged

2 http://www.latimes.com/business/la-fi-wells-fargo-suit-20150505-story.html

4


wrongdoing, along with penalties of up to $2,500 for every violation and

restitution for customers who were harmed. [subsequently, it was learned that

approximately 3.5 million3 customers were injured.]

Nine days after the City of Los Angeles filed a civil complaint against Wells

Fargo, as reported by the May 4, 2015 Los Angeles Times news article; on May

13, 2015, Shahriar Jabbari filed a putative class action complaint styled Shahriar

Jabbari v. Wells Fargo & Co., et al., Case No. 3:15-cv-02159-VC (N.D. Cal.),

asserting various statutory claims, including claims for violation of the Fair Credit

Reporting Act, 15 U.S.C. § 1681 (“FCRA”), consumer fraud, and unjust

enrichment against Wells Fargo. (ER 213)

Subsequently, on June 24, 2015, Kaylee Heffelfinger filed a putative class

action complaint styled Kaylee Heffelfinger v. Wells Fargo & Co., et al., Case No.

3:15-cv-02942 (N.D. Cal.), also asserting various statutory claims, including

claims for violation of FCRA, consumer fraud, and unjust enrichment.

STATEMENT OF THE ISSUE AND THE STANDARD OF REVIEW

Whether common issues do not predominate in the proposed class action

settlement because of the wide variation in state consumer protection laws

3 The district court was originally told there were 2.1 million accountsopened without authorization. Subsequently, the district court was informed thatthere are at least 3.5 million such accounts.

5


governing Defendants -Appellees Wells Fargo’s misconduct.

As a matter of law, the district court’s approval of the proposed class action

settlement was in error. The issue of predominance was raised in Objector-

Appellant Darbyshire’s Objection (ER 69). The Objection was overruled by the

district court in its Revised [Proposed] Order Granting Final Approval of Class

Action Settlement, Approving Service Awards, and Awarding Attorneys’ Fees and

Expenses (ER 39).

A district court’s decision to approve a class-action settlement is reviewed

for abuse of discretion. In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935,

940 (9th Cir. 2011). And, a district court’s failure to apply the correct standard of

law is an abuse of discretion. Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th

Cir. 2004).

Questions of law are reviewed by this Court de novo. Harman v. Apfel, 211

F.3d 1172, 1174 (9th Cir. 2000). With respect to class certification, “[w]hen the

trial court’s application of the facts to the law requires reference to the values that

animate legal principles [this Court] review[s] that application de novo.” Mazza v.

Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 2012)

STATEMENT OF THE CASE

On May 13, 2015, Shahriari Jabbari filed a putative class action complaint

6


styled Shahriari Jabbari v. Wells Fargo & Co., et al., Case No. 3:15-cv-

02159-VC (N.D. Cal.), asserting various statutory claims, including claims for

violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 (“FCRA”), consumer

fraud, and unjust enrichment against Wells Fargo. (ER 213)

Subsequently, on June 24, 2015, Kaylee Heffelfinger filed a putative class

action complaint styled Kaylee Heffelfinger v. Wells Fargo & Co., et al., Case No.

3:15-cv-02942 (N.D. Cal.), also asserting various statutory claims, including

claims for violation of FCRA, consumer fraud, and unjust enrichment.

On July 9, 2015, Wells Fargo filed a Motion to Dismiss

Plaintiff’s First, Third, Fourth and Fifth Causes of Action and to Stay the Case

requesting “Wells Fargo seeks an order dismissing Plaintiff’s claims under

California’s Consumer Legal Remedies Act (first cause of action), the federal Fair

Credit Reporting Act (third cause of action), and California’s Customer Records

Act (fifth cause of action) for lack of standing and failure to state a claim for

relief; dismissing Plaintiff’s claim for unjust enrichment (fourth cause of action) as

duplicative of Plaintiff’s second cause of action; and staying the case as to

Plaintiff’s remaining claim under California’s Unfair Competition Law (second

cause of action) pending resolution of the Los Angeles City Attorney’s action,

styled People of the State of California v. Wells Fargo & Co., et al., No.

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2:15-cv-04181-GW-FFM (C.D. Cal.), which asserts the same claim against Wells

Fargo and seeks the same remedies on behalf of the same class of consumers.” (ER

193)

On July 30, 2015, Plaintiff Heffelfinger voluntarily dismissed Heffelfinger

v. Wells Fargo & Co., et al., Case No. 3:15-cv-02942. That same day, Plaintiffs

Jabbari and Heffelfinger consolidated their claims against Wells Fargo and, on

behalf of themselves and all others similarly situated, filed a Consolidated

Amended Class Action Complaint (“Consolidated Complaint”) styled Jabbari, et

al. v. Wells Fargo & Co. et al., 3:15-cv-02159-VC (N.D. Cal.) (ER 161). The

Consolidated Complaint alleged violation of California’s Unfair Competition Law

Cal. Bus. & Prof. Code §§ 17200, et seq.; Violation of the California Customer

Records Act California Civil Code Section 1798.80, et seq.; Violations of the

Arizona Consumer Fraud Act; Violations of Fair Credit Reporting Act, 15 U.S.C.

§ 1681, et seq.; Violations of Electronic Funds Transfer Act, 15 U.S.C. § 1693, et

seq.; Unjust Enrichment; Conversion; and, requested Declaratory Relief.

On September 1, 2015, Wells Fargo filed both a Motion to Compel

Arbitration of Plaintiff Shahriar Jabbari’s Claims. (ER 14) and a Motion to

Compel Arbitration of Plaintiff Kaylee Heffelfingers Claims. (ER 127)

On September 23, 2015, the district court entered an Order Granting

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Defendants' Motions to Compel Arbitration. (ER 124) On October 20, 2015,

Plaintiffs filed a Notice of Appeal, giving notice “that Plaintiffs Shahriar Jabbari

and Kaylee Heffelfinger hereby appeal to the United States Court of Appeals for

the Ninth Circuit from the September 23, 2015, Order Granting

Defendants’ Motions to Compel Arbitration (ECF No. 69).” (ER 118)

As set forth in the recitals section of the Stipulation and Agreement of Class

Action Settlement and Release paragraphs 1.15 through paragraph 1.23 (ER 75):

While the appeal was pending, the parties commenced settlement discussions.

Under the direction of Ninth Circuit mediator Ann Julius, the Parties exchanged

extensive mediation briefing, and met directly with Ms. Julius. Thereafter, the

Parties retained the Honorable Layn Phillips (Ret.) to engage in further mediation.

On September 6, 2016, the parties reached an agreement in principle. On

September 8, 2016, Wells Fargo announced that it had reached settlements with

the Consumer Financial Protection Bureau (“CFPB”), the Office of the

Comptroller of the Currency (“OCC”), and the Los Angeles City Attorney.

Pursuant to the September 8, 2016 Consent Order issued by the CFPB, Wells

Fargo was required to set aside $5 million for refunding fees paid by customers

who had accounts opened or were enrolled in services without authorization.

Pursuant to the September 13, 2016 Stipulated Judgment in People of the State of

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California v. Wells Fargo & Co., Case No. BC580778 (Los Angeles County

Superior Court), Wells Fargo was required to reimburse certain fees to customers

identified by a third-party consultant, retained by Wells Fargo, as having

potentially unauthorized accounts opened between May 2011 and July 2015 (or

September 2015, in the case of credit cards). The September 6, 2016 Consent

Order issued by the OCC also required Wells Fargo to create a plan for submission

to the OCC to identify potentially harmed customers and calculate an amount of

reimbursement to be paid to each customer. Under the terms of the CFPB Consent

Order, the OCC Consent Order, and the Stipulated Judgment, Wells Fargo was

required to pay $100 million to the CFPB’s Civil Penalty Fund, pay a $35 million

civil penalty to the OCC, and a $50 million civil penalty to the City and County of

Los Angeles. Pursuant to the CFPB Consent order, the scope of the analysis

conducted by the Consultant to identify customers having potentially unauthorized

accounts was expanded to cover accounts opened between January 1, 2011, and

September 8, 2016. Wells Fargo committed to expand the scope of their

consultant’s analysis further, to cover accounts opened between January 1, 2009,

and September 30, 2016. Wells Fargo issued payments to reimburse the identified

persons for certain fees associated with the potentially unauthorized accounts,

including payment of monthly or annual fees, payment of overdraft fees due to the

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potentially unauthorized movement of funds, foregone interest payments on

checking and savings accounts, and interest charges on credit card accounts. As of

April 14, 2017, Wells Fargo had issued $3.26 million in remediation payments to

those persons with potentially unauthorized checking or savings accounts,

unsecured credit cards, or unsecured lines of credit.

On September 8, 2016, the Consumer Financial Protection Bureau fined

Wells Fargo $185 million, including a $100 million penalty, as a result of Wells

Fargo employees opening roughly 1.5 million bank accounts and applying for

565,000 credit cards that were not authorized by customers. The next week, on

September 13, 2016, this Court granted the parties’ stipulated motion to dismiss

the appeal without prejudice so that the parties could seek district court approval

of their proposed class action settlement. Thereafter, the parties continued to

negotiate the terms of their settlement. When the parties were unable to agree on

the amount of the settlement. Judge Phillips provided a mediator’s

recommendation of $110 million that was accepted by the parties on March 25,

2017. After the district court balked at the proposed $110 million Wells Fargo

agreed to increase the settlement res to $142 million.

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SUMMARY OF THE ARGUMENT

Although courts often speak of collusion with regard to class action

settlements, it is important to note that the issue - as Adam Smith would have seen

it- is that both class counsel and the defendant, are each working in their own

self-interest. Those interests are: for class counsel to maximize and insure their

profit; and for the defendant to minimize their expenses and costs. The problem

for a district court is that class counsels maximum profit and defendants

minimized cost comes at the expense of the class members. This is true even when

the defendant agrees to pay $142 million and class counsel only seeks 15% of that

$142 million - $21.3 million- as fees. FRAP places the district court in a

supervisory fiduciary role wherein the court must scrutinize any proposed

settlement agreement so as to protect unnamed class members from unjust or

unfair settlements affecting their rights. Thus, the district court's review of a

proposed settlement agreement must be both exacting and thorough. The task is

demanding because the adversariness of litigation is often lost after the defendant

and class counsel have reached an agreement to settle; and agreed to make a joint

presentation to the district court of the manifest benefits of the proposed

settlement without presenting, or acknowledging any significant information about

drawbacks.

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By mandating judicial scrutiny of proposed settlements, Rule 23 relies on

the judiciary to cast a skeptical eye on the self interest of both class counsel and

the defendant in proposing a settlement. Thus, in the Rule 23 fairness process,

objectors such as Mr. Darbyshire play a highly important role by rasing issues that

the settling parties have ignored.

The Supreme Court instructs: that scrutiny is necessary for class

certification in a settlement context because the court has not had the opportunity

to observe the case unfold during trial; and that when a class is divided between

holders of disparate claims, the differing claims requires division of the class into

homogeneous subclasses with separate representation to eliminate conflicts of

interest.

This settlement releases the claims of 50 different inchoate subclasses with

claims under state law arising out of the differences in the 50 states consumer and

identity theft laws. The district court dealt with the differences in the 50 state

consumer law and identity theft claims issue, raised by Mr. Darbyshire’s objection,

by holding in paragraph 28 of the Revised [Proposed] Order Granting Final

Approval of Class Action Settlement, Approving Service Awards, and Awarding

Attorneys’ Fees and Expenses (ER 49) that “Differences among state laws do not

bar certification of the class here, as Plaintiffs have asserted a claim under a

13


federal statute (the Fair Credit Reporting Act) that is equally applicable in all

states.” The district court’s response is error as a matter of law for two reasons.

First, in its response, the district court ignored its obligation to perform a Rule

23(b)(3) predominance analysis. Secondly, it should be obvious that many class

members have no FCRA claim because they had sufficient funds to pay Wells

Fargo for all the additional charges and costs associated with the fraudulent Wells

Fargo accounts and services.

In this matter, there is no evidence that class members are not distributed

throughout the 50 states in direct proportion to the varying populations of the 50

states. Those states, as this Circuit acknowledges, have laws that are materially

different from the laws of California. As a result, California's consumer protection

statutes may not be applied to a nationwide class with members in 44 jurisdictions.

Under Rule 23(b)(3) the variation in state law consumer protection statutes

governing the Wells Fargo Defendants -Appellees misconduct underlying this

class action, should have precluded the district court’s approval of the proposed

class action settlement; because common issues do not predominate in the

proposed class action settlement.

Variations in State law may far outweigh common issues and defeat

predominance. Therefore, a district court must analyze whether the consumer

14


protection laws (and in this matter identity theft laws) of the affected states vary in

material ways. To assist the district court with this analysis, the proponents of a

national settlement must submit a choice of law analysis to the district court to

facilitate the court’s required preponderance analysis. In this matter, Mr.

Darbyshire is unaware of any such filing in the district court record; and believes

that no one was taxed with maximizing the compensation for the class members

from states with statutory damages for violation of state consumer protection laws

and state identity theft laws. Thus, class members from those states were

inadequately represented, and Rule 23(a)(4) was violated as a matter of law.

Because the district court erred by not conducting the required choice of law

analysis, before certifying a nationwide class; the district court never determined

whether the Rule 23(b)(3)’s predominance requirement was satisfied. In this

circuit a district court abuses its discretion when it fails to conduct a choice of law

analysis or rigorously analyze potential differences in state consumer protection

laws before certifying a single nationwide settlement class under Rule 23(b)(3).

15


ARGUMENT

COMMON ISSUES DO NOT PREDOMINATE IN THE PROPOSED

CLASS ACTION SETTLEMENT BECAUSE OF THE WIDE VARIATIONIN STATE CONSUMER PROTECTION LAWS GOVERNING APPELLEEWELLS FARGO’S MISCONDUCT. THUS, AS A MATTER OF LAW, THEDISTRICT COURT’S APPROVAL OF THE PROPOSED CLASS ACTION

SETTLEMENT WAS IN ERROR.

Unlike typical civil litigators, class-action lawyers have no relationship

with, and thus cannot be monitored by, absent class member who may, at all

relevant times prior to receiving a class action notice, be totally unaware of the

pending class action. As a result, class action settlements create “the danger that

the parties and counsel will bargain away the interests of unnamed class members

in order to maximize their own,” Greenberg v. Procter & Gamble Co. (In re Dry

Max Pampers Litig.), 724 F.3d 713 (6th Cir. 2013). Additionally, class actions

always pose the additional danger that the defendant, especially when the

defendant is a publicly traded corporation, will use the class action mechanism to

achieve closure regarding numerous -in this matter millions- of damage claims;

will be more than willing to settle the claims for a fraction of their value and

thereby reach unjust settlements at the expense of the multitude of class members’

substantive rights. see Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 976 (5th Cir.

16


2000).

Both of these dangers are amplified when, as in this matter, class

certification is not contested in open court, but instead occurs as part of the district

court’s approval of a proposed settlement. In re Bluetooth Headset Prod. Liab.

Litig., 654 F.3d 935, 946 (9th Cir. 2011).

As Judge Kethledge noted “In class-action settlements, the adversarial

process - or what the parties here refer to as their ‘hard-fought’ negotiations -

extends only to the amount the defendant will pay, not the manner in which that

amount is allocated between the class representatives, class counsel, and unnamed

class members. For ‘the economic reality [is] that a settling defendant is concerned

only with its total liability[,]’ Strong v. BellSouth Telecomms., Inc., 137 F.3d 844,

849 (5th Cir. 1998); and thus a settlement's ‘allocation between the class payment

and the attorneys' fees is of little or no interest to the defense.” In re Gen. Motors

Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig. ("Gen. Motors Pickup Litig."),

55 F.3d 768, 820 (3d Cir. 1995). Hence - unlike in virtually every other kind of

case - in class-action settlements the district court cannot rely on the adversarial

process to protect the interests of the persons most affected by the litigation, -

namely, the class. Instead, the law relies upon the ‘fiduciary obligation[s]’ of the

class representatives and, especially, class counsel, to protect those interests.

17


Creative Montessori Learning Ctrs. v. Ashford Gear LLC, 662 F.3d 913, 917-918

(7th Cir. 2011). And that means the courts must carefully scrutinize whether those

fiduciary obligations have been met.” In re Dry Max Pampers Litig. 724 F.3d 713,

717; see also Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 621-22 (1997).

Although court’s often speak of collusion with regard to class action

settlements, it is important to note that the issue - as Adam Smith would have seen

it- is that both class counsel and the defendant, are each working in their own

self-interest. Those interests are: for class counsel to maximize and insure their

profit; and for the defendant to minimize their expenses and costs. The problem

for a district court is that class counsels maximum profit and defendants

minimized cost comes at the expense of the class members. This is true even

when the defendant agrees to pay $142 million and class counsel only seeks 15%

of that $142 million - $21.3 million- as fees.

As Lenin wrote “What is to be Done? (Что делать?)”. The answer in class

actions is FRAP 23. Rule 23 places the district court in a supervisory fiduciary

role wherein the court must scrutinize any proposed settlement agreement so as to

"protect unnamed class members from unjust or unfair settlements affecting their

rights” Amchem, 521 U.S. at 623. Thus, the district court's review of a proposed

settlement agreement “must be exacting and thorough. The task is demanding

18


because the adversariness of litigation is often lost after the agreement to settle.

The settling parties frequently make a joint presentation of the benefits of the

settlement without [presenting] significant information about any drawbacks. If

objectors do not emerge, there may be no lawyers or litigants criticizing the

settlement or seeking to expose flaws or abuses.” Manual for Complex Litigation

§ 21.61 at page 309.

As Judge Wood wrote “we insist that district courts ‘exercise the highest

degree of vigilance in scrutinizing proposed settlements of class actions.’

Reynolds v. Beneficial Nat'l Bank, 288 F.3d 277, 279 (7th Cir. 2002). In the past,

we have gone so far as to characterize the court's role as akin ‘to the high duty of

care that the law requires of fiduciaries.’ Id. at 280.” Synfuel Techs., Inc. v. DHL

Express (USA), Inc., 463 F.3d 646 (7th Cir. 2006); see also 4 Newberg on Class

Actions § 13:40 ("[T]he court is said to have a 'fiduciary duty' toward absent class

members during the settlement of a class suit."). “Because there is typically no

client with the motivation, knowledge, and resources to protect its own interests,

the judge must adopt the role of a skeptical client and critically examine the class

certification elements, the proposed settlement terms, and procedures for

implementation.” Manual for Complex Litigation § 21.61 (4th ed. 2004).

Under Rule 23 “the court plays the important role of protector of the

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absentees’ interests, in a sort of fiduciary capacity” In re GMC Pick-Up Truck

Fuel Tank Prods., 55 F.3d at 784.

By mandating judicial scrutiny of proposed settlements, Rule 23 relies on

the judiciary to cast a skeptical eye on the self interest of both class counsel and

the defendant in proposing a proposal. In the Rule 23 fairness process objectors

such as Mr. Darbyshire “play a highly important role for the class and the court

because he or she raises challenges free from the burden of conflicting baggage

that Class Counsel carries.” In re Prudential Ins. Co. Am. Sales, 278 F.3d 175, 202

(3d Cir. 2002); see also Lane v. Facebook, Inc., 696 F.3d 811, 830 (9th Cir. 2012).

In this matter, the district court wrote: “The Court confirms its previous

certification of the Settlement Class, for settlement purposes only, pursuant to

Federal Rule of Civil Procedure 23(b)(3). The Settlement Class is defined as

follows: All Persons for whom Wells Fargo or Wells Fargo ’s current or former

subsidiaries, affiliates, principals, officers, directors, or employees opened an

Unauthorized Account or submitted an Unauthorized Application, or who

obtained Identity Theft Protection Services from Wells Fargo during the period

from May 1, 2002 to April 20, 2017, inclusive, with the exception o f (i)

Defendants’ officers, directors and employees; (ii) the judicial officers and

associated court staff assigned to this case, and the immediate family members o f

20


such officers and staff; and (iii) Persons who timely and properly opt-out of the

Settlement Class pursuant to the procedures set out in Paragraph 12 of the

Settlement Agreement. The Court confirms its previous determination in the

Preliminary Approval Order that, for settlement purposes only, the Action meets

all the prerequisites of Rule 23(a) and the requirements of Rule 23(b)(3).” (ER 41)

The Supreme Court instructs that “undiluted, even heightened” scrutiny is

necessary for class certification in a settlement context because “a court asked to

certify a settlement class will lack the opportunity … [to later] adjust the class,

informed by the proceedings as they unfold.” Amchem Prods, 521 U.S. at 620.

Rule 23(e) “was designed to function as an additional requirement, not a

superseding direction, for the ‘class action’ to which Rule 23(e) refers is one

qualified for certification under Rule 23(a) and (b);” and, “The safeguards

provided by the Rule 23(a) and (b) class-qualifying criteria, we emphasize, are not

impractical impediments—checks shorn of utility—in the settlement class

context.” Id. at 621.

In Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), the Supreme Court

instructed that “a class divided between holders of [disparate] claims … requires

division into homogeneous subclasses with separate representation to eliminate

conflicting interests of counsel.” Id. at 856. In Ortiz, the proposed class combined

21


claimants exposed to asbestos products before 1959, whose claims were covered

pursuant to an insurance policy then in effect, and claimants first exposed after

1959 whose claims arose after the expiration of the said insurance policy. Because

the pre 1959 claimants obviously had more valuable claims than class members

who were exposed to asbestos products after the expiration of the insurance

policy; the two subclasses had “disparate interests” which precluded adequacy. see

Hesse v. Sprint Corp., 598 F.3d 581, 589 (9th Cir. 2010) (concluding that

representative plaintiff had an “insurmountable conflict of interest” when “one

group within a larger class possesse[d] a claim” “no[t] shared by the class

representative”).

In this matter arising out of diversity4, the settlement only certification by

the district court violates Rule 23(a)(4)’s adequacy requirement because the

settlement includes and releases the claims of 50 different inchoate subclasses

with claims under state law.

Plaintiffs - Appellees and Defendants - Appellees will no doubt argue that

4 In this matter Plaintiff alleged jurisdiction in the district court by alleging“This Court has subject matter jurisdiction pursuant to the Class Action FairnessAct of 2005, 28 U.S.C. § 1332(d), because at least one Class member is of diversecitizenship from one defendant, there are 100 or more Class members nationwide,and the aggregate amount in controversy exceeds $5,000,000.” CAFA supercedestraditional diversity jurisdiction under 28 U.S.C. § 1332 or federal questionjurisdiction under 28 U.S.C. § 1331.

22


the differences in the 50 state consumer law and identity theft claims are de

minimis and relatively immaterial; thus permitting efficiency concerns to override

“fine lines.” In re Mexico Money Transfer Litig., 267 F.3d 743, 747 (7th Cir.

2001). The problem with that argument is twofold: there is no uniform law of

consumer protection or identity theft that has been adopted by the 50 individual

states; and the proponents of the settlement failed to present the district court with

any analysis of the differing laws, and differing damages provided by, each of the

50 states with regard to consumer protection and identity theft.

The district court dealt with the differences in the 50 state consumer law and

identity theft claims issue, raised by Mr. Darbyshire’s objection, by holding in

paragraph 28 of the Revised [Proposed] Order Granting Final Approval of Class

Action Settlement, Approving Service Awards, and Awarding Attorneys’ Fees and

Expenses (ER 49) that “Differences among state laws do not bar certification of

the class here, as Plaintiffs have asserted a claim under a federal statute (the Fair

Credit Reporting Act) that is equally applicable in all states.” The district court’s

response is error as a matter of law for two reasons. First, in its response, the

district court ignored its obligation to perform a Rule 23(b)(3) predominance

analysis. Secondly, it should be obvious that many class members have no FCRA

claim because they had sufficient funds to pay Wells Fargo for all the additional

23


charges and costs associated with the fraudulent Wells Fargo accounts and

services

It is axiomatic that Wells Fargo is a national bank with offices in each of the

50 states. There is no evidence that class members are not distributed throughout

the 50 states in direct proportion to the varying populations of the 50 states.

Those states, as this Circuit acknowledges, have laws that are materially different

from the laws of California."California's consumer protection statutes may not be

applied to a nationwide class with members in 44 jurisdictions." Mazza v. Am.

Honda Motor Co., 666 F.3d 581, 589 (9th Cir. 2012). Under Rule 23(b)(3) the

variation in state law consumer protection statutes governing the Wells Fargo

Defendants -Appellees misconduct underlying this class action, should have

precluded the district court’s approval of the proposed class action settlement;

because common issues do not predominate in the proposed class action

settlement.

In Mazza this Court noted that each of the 44 different states where the car

sales took place "has a strong interest in applying its own consumer protection

laws to those transactions." Id. at 592. This Court also determined that "if

California law were applied to the entire class, foreign states would be impaired in

their ability to calibrate liability to foster commerce" and that "each class

24


member's consumer protection claim should be governed by the consumer

protection laws of the jurisdiction in which the transaction took place." Id. at 593,

594.

Earlier this year this Court established in Espinosa v. Ahearn (In re Hyundai

& Kia Fuel Econ. Litig.), 881 F.3d 679 (9th Cir. 2018) that before certifying a

class, a district court must conduct a “rigorous analysis” to determine whether the

party seeking certification has met the prerequisites of Rule 23, including a

demanding predominance inquiry.

When, as in this matter, a district court certifies a class action for settlement

only, that certification requires “heightened” attention by the district court. Thus,

even when reviewing certification in a settlement context, a district court has a

“duty” to take a close look at whether common questions of law predominate over

individual ones, and ensure that individual questions of law - such as the consumer

protection and identity theft laws of the 50 states - do not overwhelm questions of

Federal law. That analysis would have clearly shown that the state consumer

protection and identity theft laws clearly overwhelm federal law expressed through

the Fair Credit Reporting Act, which only applies to that unknown (though

undoubtedly small) percentage of class members who claims include one or more

credit reporting violations by Wells Fargo.

25


In this matter, as in In re Hyundai “the court erred by failing to make a final

ruling as to whether the material variations in state law defeated predominance

under Rule 23(b)(3)”.

“Because ‘variations in state law may swamp any common issues and defeat

predominance,’ Castano [Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir.

1996)] 84 F.3d at 741, a court must analyze whether ‘the consumer-protection

laws of the affected States vary in material ways,’ Pilgrim [Pilgrim v. Universal

Health Card, LLC, 660 F.3d 943 (6th Cir. 2011)], 660 F.3d at 947, even if the

court ultimately determines that ‘the common, aggregation-enabling, issues in the

case are more prevalent or important than the non-common, aggregation-defeating,

individual issues,’ Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045, 194

L. Ed. 2d 124 (2016) (citation omitted).”

Furthermore, Hyundai, requires that the proponents of a national settlement

submit a choice of law analysis to the district court to facilitate the court’s

required preponderance analysis. Mr. Darbyshire is unaware of any such filing in

the district court record.

The requirement that a district court must conduct a rigorous predominance

inquiry when it considers certification of a settlement class, is nothing new. Zinser

v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001).

26


In this matter, class counsel conceded that “classwide proof of whether

accounts were unauthorized,” necessary for class certification, would be difficult.

(ER 75) In the same document class counsel acknowledged: that “Wells Fargo

could argue that adjudicating whether a particular account was unauthorized raises

inherently individualized factual issues;” and, that twenty states that allow private

civil actions for identify theft and ten allow statutory damages, but require proof of

purpose or intent, which “could also stymie class certification.”

The solution for resolving the intraclass conflict arising from varying sate

consumer and identity theft laws is to create subclasses under Fed. R. Civ. P.

23(c)(5) and to assign each discrete subclass “separate representation.” Ortiz, 527

U.S. at 840.

In re Literary Works in Electronic Databases Copyright Litigation, 654

F.3d 242 (2d Cir. 2011), is instructive of the intraclass conflict problem. In

Literary Works, the Second Circuit reversed the district court because of its failure

to require subclasses and provide separate representation in a settlement involving

authors whose copyrighted works had been electronically published without their

authorization. Id. at 246. As in this case, each class representative “served

generally as a representative for the whole, not for a separate constituency.” Id. at

251 (quoting Amchem, 521 U.S. at 627). Although some named plaintiffs and class

27


members had a mix of claims; other named plaintiffs and class members did not

have multiple claims. Nevertheless, the district court did not require subclasses.

On appeal, the objectors pointed out that no named class member could adequately

represent single claim class members. The Second Circuit accepted the reasoning

that a class member with only a single type of claim would be interested in

“maximizing the compensation for that one category of claim.” Moreover without

subclasses, even a named plaintiff who only had a single claim could not

adequately protect the interests of single claim class members because that named

plaintiff was also “obligated to advance the collective interests of the class, rather

than those of the subset of class members whose claims mirrored their own. Only

the creation of subclasses, and the advocacy of an attorney representing each

subclass, can ensure that the interests of that particular subgroup are in fact

adequately represented. ‘[W]here differences among members of a class are such

that subclasses must be established, we know of no authority that permits a court

to approve a settlement . . . on the basis of consents by members of a unitary class,

some of whom happen to be members of . . . distinct subgroups,’ without creating

subclasses. In re Joint E. & S. Dist. Asbestos Litig., 982 F.2d 721, 743 (2d Cir.

1992), modified on reh'g, 993 F.2d 7 (2d Cir. 1993).” Literary Works at 252.

In this matter it is obvious that no one was taxed with maximizing the

28


compensation for the class members from states with statutory damages for

violation of consumer protection and identity theft state laws. Thus, class members

from those states were inadequately represented, and Rule 23(a)(4) was violated as

a matter of law.

Applying Amchem, this Court in Mazza v. American Honda Motor, Inc.,

decertified a class of Honda purchasers encompassing members from jurisdictions

with materially divergent consumer-protection laws, holding that the “variances in

state law overwhelm[ed] common issues and preclude[d] predominance.” 666 F.3d

at 596. In Mazza the plaintiff class alleged that Honda’s advertisements

misrepresented information regarding its cars’ braking systems. Id. at 585.

Nevertheless, predominance was not satisfied, despite the underlying common

claim, because, California’s consumer-protection laws required plaintiffs to

demonstrate reliance, while some other states have consumer protection laws

which do not require proof of reliance. Id. at 591; see also Perras v. H & R Block,

789 F.3d 914, 916-19 (8th Cir. 2015) (nationwide class only based on Missouri

state law does not satisfy Rule 23(b)(3)); Pilgrim v. Universal Health Card, LLC,

660 F.3d 943, 947 (6th Cir. 2011) (“laws of the affected States vary in material

ways, no common legal issues favor a class-action approach to resolving [the]

dispute”).

29


It may be argued that all class members share the common experience of

being damaged by the illegal and unethical actions of the Wells Fargo Defendants-

Appellees. In fact, it is conceded that all class members share having a Wells

Fargo inflicted injury in common. But, even so, it must be remembered that

“[e]ven if Rule 23(a)’s commonality requirement may be satisfied by that shared

experience, the predominance criterion is [a] far more demanding [analysis].”

Amchem, 521 U.S. at 623-24. Thus, while Plaintiffs could satisfy their “limited

burden” to show a Rule 23(a)(2) common question, they cannot show Rule 23

(b)(3) predominance of either legal or factual questions. Mazza, 666 F.3d at 589.

Settlements may be approved only if they are “fair, reasonable, and

adequate.” Fed. R. Civ. P. 23(e)(2). Thus, district courts “must be particularly

vigilant not only for explicit collusion, but also for more subtle signs that class

counsel have allowed pursuit of their own self-interests and that of certain class

members to infect the negotiations.” In re Bluetooth Headset Prods. Liab. Litig.,

654 F.3d 935, 947 (9th Cir. 2011). Furthermore, although oft repeated, it is worth

remembering that “a defendant is interested only in disposing of the total claim

asserted against it” and that the allocation of a settlement res between class

members or between the class members and the attorneys’ fees “is of little or no

interest to the defense.” Bluetooth, 654 F.3d at 949 (quoting Staton v. Boeing, 327

30


F.3d 938, 964 (9th Cir. 2003).

The district court clearly erred by not conducting the required choice of law

analysis before certifying a nationwide class. In this Circuit a district court abuses

its discretion when it fails to conduct “a choice of law analysis or rigorously

analyze potential differences in state consumer protection laws before certifying a

single nationwide settlement class under Rule 23(b)(3).” In re Hyundai, 881 F.3d

679, 701-02 (9th Cir. 2018). Hyundai requires district courts, in both the

settlement or litigation context, to “determine whether [one state’s] law could

apply to all plaintiffs in [a] nationwide class, or whether the court had to apply the

law of each state, and if so, whether variations in state law defeated

predominance.” Id. at 702. In certifying the settlement class, the district court

failed to do so. Thus, the district court never determined whether Rule 23(b)(3)’s

predominance requirement was satisfied before approving the proposed

settlement. The grounds for reversal here are much stronger than the grounds for

reversal in Hyundai.

In this Circuit, based on Hyundai, it is the proponents of a settlement, not

the objectors, who are tasked with the production of evidence establishing the

differences in the various states consumer protection laws. Hyundai 881 F.3d at

710. In this Circuit Hyundai is the controlling law. The old Seventh Circuit case In

31


re Mexico Money Transfer Litig., 267 F.3d 743, 747 (7th Cir. 2001), which placed

the burden on objectors to produce evidence establishing the differences in the

various states consumer protection laws for the district court, is clearly wrong

because if no one provides the needed evidence to the district court, there can be

no Rule 23(b)(3) analysis.

In this matter, Mr. Darbyshire specifically raised the predominance problem

in his objection; and the district court thereafter failed to conduct a Rule 23(b)(3)

analysis.

32


CONCLUSION

Based on the forgoing this Court should decertify the class, reverse the

district court’s settlement approval, and remand for further proceedings.

Respectfully submitted,

/s/ N. Albert Bacharach, Jr. N. Albert Bacharach, Jr.Attorney for Objector-Appellant CharlesDarbyshire, Guardian of Roy Geirsbach,Appeal No.: 18-16285Florida Bar No.: 209783N. ALBERT BACHARACH, JR., P.A.4128 NW 13th StreetGainesville, FL 32609-1807(352)378-9859; FAX (352)[email protected]@nabjr.com

33


STATEMENT OF RELATED CASES UNDER CIRCUIT RULE 28-2.6

On September 6, 2018 this Court consolidated this appeal by Appellant-

Objector Charles Darbyshire (18-16285) with appeals Nos. 18-16213(Appellant-

Objector Chad Michael Farmer), 18-16223 (Appellant-Objector Barbara Cochran),

18-16236 (Appellant-Objector Lydia LaBelle de Rios), 18-16284 (Appellant-

Objector Mike Murphy), 18-16315 (Appellant-Objector Appellant Jill Piazza), and

18-16317 (18-16213(Appellant-Objector Scott Johnston).

Related non-consolidated Appeal No. 18-16316 (Objectors-Appellants:

Alex Chernavsky; and William Castro) is an appeal of the district court’s denial of

Objectors-Appellants’ Motion for attorneys’ fees and costs.

Dated November 5, 2018. /s/ N. Albert Bacharach, Jr. N. Albert Bacharach, Jr.

34


CERTIFICATE OF COMPLIANCE PURSUANT TO 9TH CIRCUIT RULE32-1 FOR CASE NUMBER 18-16285

I certify that: This brief complies with the length limits permitted by Ninth

Circuit Rule 32-1. The brief is 7,977 words, excluding the portions exempted by

Fed. R. App. P. 32(f), if applicable. The brief’s type size and type face comply

with Fed. R. App. P. 32(a)(5) and (6).

Dated November 5, 2018. /s/ N. Albert Bacharach, Jr. N. Albert Bacharach, Jr.

35


PROOF OF SERVICE

I HEREBY certify that on November 5, 2018, I electronically filed the

foregoing with the Clerk of the United States Court of Appeals for the Ninth

Circuit using the CM/ECF system, which will provide both notification and

service of this filing to all CM/ECF registered filers.

/s/ N. Albert Bacharach, Jr. N. Albert Bacharach, Jr.

36


Documents

No. 18-16285