FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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 

No. 17-16020

D.C. No.

3:15-md-02672-

CRB
2 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

MCCARTHY; SCOTT MOEN; RYAN 

JOSEPH SCHUETTE; MEGAN 

WALAWENDER; JOSEPH MORREY;

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,

Plaintiffs-Appellees,

BISHOP, HEENAN & DAVIES,

Objector-Appellant,

v.

VOLKSWAGEN GROUP OF AMERICA,

INC.; VOLKSWAGEN, AG; AUDI, AG;

AUDI OF AMERICA, LLC; PORSCHE 

CARS NORTH AMERICA, INC.;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 3

ROBERT BOSCH GMBH; ROBERT 

BOSCH, LLC,

Defendants-Appellees.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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 

No. 17-16065

D.C. No.

3:15-md-02672-

CRB
4 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

MCCARTHY; SCOTT MOEN; RYAN 

JOSEPH SCHUETTE; MEGAN 

WALAWENDER; JOSEPH MORREY;

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,

Plaintiffs-Appellees,

LAW OFFICE OF MALONEY &

CAMPOLO, LLP,

Objector-Appellant,

v.

VOLKSWAGEN GROUP OF AMERICA,

INC.; VOLKSWAGEN, AG; AUDI, AG;

AUDI OF AMERICA, LLC; PORSCHE 
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 5

CARS NORTH AMERICA, INC.;

ROBERT BOSCH GMBH; ROBERT 

BOSCH, LLC,

Defendants-Appellees.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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 

No. 17-16067

D.C. No.

3:15-md-02672-

CRB
6 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

STEUDEL; ANNE MAHLE; DAVID 

MCCARTHY; SCOTT MOEN; RYAN 

JOSEPH SCHUETTE; MEGAN 

WALAWENDER; JOSEPH MORREY;

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,

Plaintiffs-Appellees,

JAMES BEN FEINMAN; RONALD 

CLARK FLESHMAN, JR.,

Objectors-Appellants,

v.

VOLKSWAGEN GROUP OF AMERICA,

INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 7

AUDI OF AMERICA, LLC; PORSCHE 

CARS NORTH AMERICA, INC.;

ROBERT BOSCH GMBH; ROBERT 

BOSCH, LLC,

Defendants-Appellees.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16068

D.C. No.

3:15-md-02672-

CRB
8 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

MARK ROVNER; WOLFGANG 

STEUDEL; ANNE MAHLE; DAVID 

MCCARTHY; SCOTT MOEN; RYAN 

JOSEPH SCHUETTE; MEGAN 

WALAWENDER; JOSEPH MORREY;

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,

Plaintiffs-Appellees,

LEMBERG LAW, LLC,

Objector-Appellant,

v.

VOLKSWAGEN GROUP OF AMERICA,

INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 9

AUDI OF AMERICA, LLC; PORSCHE 

CARS NORTH AMERICA, INC.;

ROBERT BOSCH GMBH; ROBERT 

BOSCH, LLC,

Defendants-Appellees.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16082

D.C. No.

3:15-md-02672-

CRB
10 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

MARK ROVNER; WOLFGANG 

STEUDEL; ANNE MAHLE; DAVID 

MCCARTHY; SCOTT MOEN; RYAN 

JOSEPH SCHUETTE; MEGAN 

WALAWENDER; JOSEPH MORREY;

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,

Plaintiffs-Appellees,

NAGEL RICE, LLP,

Objector-Appellant,

v.

VOLKSWAGEN GROUP OF AMERICA,

INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 11

AUDI OF AMERICA, LLC; PORSCHE 

CARS NORTH AMERICA, INC.;

ROBERT BOSCH GMBH; ROBERT 

BOSCH, LLC,

Defendants-Appellees.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16083

D.C. No.

3:15-md-02672-

CRB
12 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

MARK ROVNER; WOLFGANG 

STEUDEL; ANNE MAHLE; DAVID 

MCCARTHY; SCOTT MOEN; RYAN 

JOSEPH SCHUETTE; MEGAN 

WALAWENDER; JOSEPH MORREY;

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,

Plaintiffs-Appellees,

STRONG LAW OFFICES,

Objector-Appellant,

v.

VOLKSWAGEN GROUP OF AMERICA,

INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 13

AUDI OF AMERICA, LLC; PORSCHE 

CARS NORTH AMERICA, INC.;

ROBERT BOSCH GMBH; ROBERT 

BOSCH, LLC,

Defendants-Appellees.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16089

D.C. No.

3:15-md-02672-

CRB
14 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

MARK ROVNER; WOLFGANG 

STEUDEL; ANNE MAHLE; DAVID 

MCCARTHY; SCOTT MOEN; RYAN 

JOSEPH SCHUETTE; MEGAN 

WALAWENDER; JOSEPH MORREY;

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,

Plaintiffs-Appellees,

HYDE & SWIGART,

Objector-Appellant,

v.

VOLKSWAGEN GROUP OF AMERICA,

INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 15

AUDI OF AMERICA, LLC; PORSCHE 

CARS NORTH AMERICA, INC.;

ROBERT BOSCH GMBH; ROBERT 

BOSCH, LLC,

Defendants-Appellees.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16092

D.C. No.

3:15-md-02672-

CRB
16 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

MARK ROVNER; WOLFGANG 

STEUDEL; ANNE MAHLE; DAVID 

MCCARTHY; SCOTT MOEN; RYAN 

JOSEPH SCHUETTE; MEGAN 

WALAWENDER; JOSEPH MORREY;

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,

Plaintiffs-Appellees,

THE DRISCOLL FIRM, P.C.,

Objector-Appellant,

v.

VOLKSWAGEN GROUP OF AMERICA,

INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 17

AUDI OF AMERICA, LLC; PORSCHE 

CARS NORTH AMERICA, INC.;

ROBERT BOSCH GMBH; ROBERT 

BOSCH, LLC,

Defendants-Appellees.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16099

D.C. No.

3:15-md-02672-

CRB
18 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

MARK ROVNER; WOLFGANG 

STEUDEL; ANNE MAHLE; DAVID 

MCCARTHY; SCOTT MOEN; RYAN 

JOSEPH SCHUETTE; MEGAN 

WALAWENDER; JOSEPH MORREY;

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,

Plaintiffs-Appellees,

VILES AND BECKMAN, LLC,

Objector-Appellant,

v.

VOLKSWAGEN GROUP OF AMERICA,

INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 19

AUDI OF AMERICA, LLC; PORSCHE 

CARS NORTH AMERICA, INC.;

ROBERT BOSCH GMBH; ROBERT 

BOSCH, LLC,

Defendants-Appellees.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16123

D.C. No.

3:15-md-02672-

CRB
20 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

MARK ROVNER; WOLFGANG 

STEUDEL; ANNE MAHLE; DAVID 

MCCARTHY; SCOTT MOEN; RYAN 

JOSEPH SCHUETTE; MEGAN 

WALAWENDER; JOSEPH MORREY;

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,

Plaintiffs-Appellees,

HOLTON LAW FIRM, PLLC,

Objector-Appellant,

v.

VOLKSWAGEN GROUP OF AMERICA,

INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 21

AUDI OF AMERICA, LLC; PORSCHE 

CARS NORTH AMERICA, INC.;

ROBERT BOSCH GMBH; ROBERT 

BOSCH, LLC,

Defendants-Appellees.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16124

D.C. No.

3:15-md-02672-

CRB
22 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

MARK ROVNER; WOLFGANG 

STEUDEL; ANNE MAHLE; DAVID 

MCCARTHY; SCOTT MOEN; RYAN 

JOSEPH SCHUETTE; MEGAN 

WALAWENDER; JOSEPH MORREY;

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,

Plaintiffs-Appellees,

MAKAREM & ASSOCIATES, APLC,

Objector-Appellant,

v.

VOLKSWAGEN GROUP OF AMERICA,

INC.; VOLKSWAGEN, AG; AUDI, AG;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 23

AUDI OF AMERICA, LLC; PORSCHE 

CARS NORTH AMERICA, INC.;

ROBERT BOSCH GMBH; ROBERT 

BOSCH, LLC,

Defendants-Appellees.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16130

D.C. No.

3:15-md-02672-

CRB
24 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

MARK ROVNER; WOLFGANG 

STEUDEL; ANNE MAHLE; DAVID 

MCCARTHY; RYAN JOSEPH 

SCHUETTE; MEGAN WALAWENDER;

JOSEPH MORREY; 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,

Plaintiffs-Appellees,

LAW OFFICE OF SAMUEL W.

BEARMAN, LLC; SELLERS SKIEVASKI 

KUDER LLP; ARTICE MCGRAW, PA,

Objectors-Appellants,

v.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 25

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.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16132

D.C. No.

3:15-md-02672-

CRB
26 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

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;

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,

Plaintiffs-Appellees,

HARRELL & NOWAK, LLC,

Objector-Appellant,

v.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 27

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.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16156

D.C. No.

3:15-md-02672-

CRB
28 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

CARMEL RUBIN; DANIEL SULLIVAN;

MATTHEW CURE; DENISE DE FIESTA;

MARK ROVNER; WOLFGANG 

STEUDEL; ANNE MAHLE; DAVID 

MCCARTHY; RYAN JOSEPH 

SCHUETTE; MEGAN WALAWENDER;

JOSEPH MORREY; 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,

Plaintiffs-Appellees,

EGOLF FERLIC HARWOOD, LLC,

Objector-Appellant,

v.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 29

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.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16158

D.C. No.

3:15-md-02672-

CRB
30 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

CARMEL RUBIN; DANIEL SULLIVAN;

MATTHEW CURE; DENISE DE FIESTA;

MARK ROVNER; WOLFGANG 

STEUDEL; ANNE MAHLE; DAVID 

MCCARTHY; RYAN JOSEPH 

SCHUETTE; MEGAN WALAWENDER;

JOSEPH MORREY; 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,

Plaintiffs-Appellees,

RYDER LAW FIRM, P.C.,

Objector-Appellant,

v.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 31

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.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16172

D.C. No.

3:15-md-02672-

CRB
32 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

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;

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,

Plaintiffs-Appellees,

PAUL S. ROTHSTEIN,

Objector-Appellant,

v.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 33

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.

IN RE VOLKSWAGEN “CLEAN DIESEL”

MARKETING, SALES PRACTICES, AND 

PRODUCTS LIABILITY LITIGATION,

JASON HILL; RAY PRECIADO; SUSAN 

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; STEPHEN VERNER;

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;

No. 17-16180

D.C. No.

3:15-md-02672-

CRB

OPINION
34 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

CARMEL RUBIN; DANIEL SULLIVAN;

MATTHEW CURE; DENISE DE FIESTA;

MARK ROVNER; WOLFGANG 

STEUDEL; ANNE MAHLE; DAVID 

MCCARTHY; RYAN JOSEPH 

SCHUETTE; MEGAN WALAWENDER;

JOSEPH MORREY; 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,

Plaintiffs-Appellees,

HAWKS QUINDEL, S.C.; HABUSH

HABUSH & ROTTIER, S.C.,

Objectors-Appellants,

v.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 35

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

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted December 19, 2018

San Francisco, California

Filed January 22, 2019

Before: MILAN D. SMITH, JR. and JACQUELINE H. 

NGUYEN, Circuit Judges, and JANE A. RESTANI,*

Judge.

Opinion by Judge Milan D. Smith, Jr.

 * The Honorable Jane A. Restani, Judge for the United States Court 

of International Trade, sitting by designation.
36 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

SUMMARY**

Attorneys’ Fees / Class Action

The panel affirmed the district court’s order denying the 

244 motions for attorneys’ fees filed by non-class counsel, 

arising from an underlying class action that secured a 

settlement of more than $10 billion and an additional award 

of $175 million in fees for class counsel, in a multi-district 

litigation concerning claims predicated on Volkswagen’s 

use of defeat devices in certain VW and Audi diesel vehicles.

The panel held that appellants, who were law firms and 

lawyers that appealed in their own names (with the exception 

of appellant Roald Clark Fleishman, Jr. who joined his 

attorney’s appeal), had standing to challenge the fee order. 

The panel concluded, as a matter of first impression, that 

appellants had standing because they suffered an injury 

(deprivation of attorneys’ fees) that was caused by the 

conduct complained of (the fee order) and would be 

redressed by judicial relief.

Federal Rule of Civil Procedure 23 permits an award of 

fees when authorized by law or the parties’ agreement, and 

courts have an independent obligation to ensure that the 

award, like the settlement itself, is reasonable. Because the 

underlying class action did not feature a traditional common 

fund from which attorneys’ fees were procured, appellants 

could only have collected fees if they provided a substantial 

benefit to the class. The panel concluded that the district 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 37

court did not abuse its discretion when it determined that the 

efforts of non-class counsel for which they sought fees did 

not benefit the class such that they would be entitled to 

compensation.

The panel rejected three additional arguments advanced 

by Nagel Rice LLP and others (the Nagel Appellants). The 

panel held that the district court’s order supplied the 

necessary level of explanation for its decision. The panel 

also held that there was no agreement between the parties, 

either explicit or implicit, that Volkswagen would 

compensate the Nagel Appellants for their efforts. Finally, 

the panel held that the Nagel Appellants improperly invoked 

quantum meruit where non-class counsel did not 

substantially benefit the class; and no unjust enrichment 

occurred.

Appellant James Ben Feinman’s separate brief 

challenged the district court’s injunction enjoining efforts to 

assert attorney fee lien claims under State law. The panel 

held that because the district court vacated the lien order and 

its injunction, all of the issues contained in Feinman’s brief 

were rendered moot, and the panel need not consider them.

COUNSEL

Bruce H. Nagel (argued) and Diane E. Sammons, Nagel 

Rice, LLP, Roseland, New Jersey; James B. Feinman 

(argued), James B. Feinman & Associates, Lynchburg, 

California; Sara Khosroabadi and Joshua B. Swigart, Hyde 

& Swigart, San Diego, California; for Objectors-Appellants.

Samuel Issacharoff (argued), New York, New York; Kevin 

R. Budner, David S. Stellings, and Elizabeth J. Cabraser, 
38 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

Lieff Cabraser Heimann & Bernstein LLP, San Francisco, 

California; Robin L. Greenwald, Weitz & Luxenberg P.C., 

New York, New York; Christopher A. Seeger, Seeger Weiss 

LLP, New York, New York; Paul J. Geller, Robbins Geller 

Rudman & Dowd LLP, Boca Raton, Florida; Lynn Lincoln 

Sarko, Keller Rohrback L.L.P., Seattle, Washington; 

Michael D. Hausfeld, Hausfeld LLP, Washington, D.C.; 

Jayne Conroy, Simmons Hanly Conroy LLC, New York, 

New York; Roxanne Barton Conlin, Roxanne Conlin & 

Associates P.C., Des Moines, Iowa; Joseph F. Rice, Motley 

Rice LLC, Mount Pleasant, South Carolina; Michael Everett 

Heygood, Heygood Orr & Pearson, Irving, Texas; Adam J. 

Levitt, Dicello Levitt & Casey LLC, Chicago, Illinois; Frank 

Mario Pitre, Cotchett Pitre & McCarthy LLP, Burlingame, 

California; James E. Cecchi and Carella, Byrne, Cecchi

Olstein Brody & Agnello P.C., Roseland, New Jersey; David 

Boies, Boies Schiller & Flexner LLP, Armonk, New York; 

W. Daniel “Dee” Miles III, Beasley Allen Law Firm, 

Montgomery, Alabama; Benjamin L. Bailey, Bailey Glasser 

LLP, Charleston, West Virginia; Steve W. Berman, Hagens 

Berman, Seattle, Washington; Rosemary M. Rivas, Levi & 

Korsinsky LLP, San Francisco, California; David Seabold 

Casey Jr., Casey Gerry Schenk Franca Villa Blatt & Penfield 

LLP, San Diego, California; J. Gerard Stranch IV, 

Branstetter Stranch & Jennings, PLLC, Nashville, 

Tennessee; Lesley E. Weaver, Bleichmar Fonti & Auld LLP, 

Oakland, California; Roland K. Tellis, Baron & Budd P.C., 

Encino, California; for Plaintiffs-Appellees.

Sharon Nelles (argued), Andrew J. Finn, William B. 

Monahan, and Robert J. Giuffra, Jr., Sullivan & Cromwell 

LLP, New York, New York, for Defendants-Appellees.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 39

OPINION

M. SMITH, Circuit Judge:

Appellants are lawyers and law firms that represented 

class members in an underlying class action that secured a 

settlement of more than $10 billion and an additional award 

of $175 million in fees for class counsel. Non-class counsel 

filed 244 motions for attorneys’ fees. In a single order, the 

district court denied all of the motions, determining that the 

lawyers neither performed common benefit work nor 

followed the proper procedures for compensation. We 

affirm.1

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

On September 18, 2015, the Environmental Protection 

Agency (EPA) issued a Notice of Violation (NOV) in which 

it alleged that Defendants-Appellees Volkswagen Group of 

America, Inc., Volkswagen, AG, and Audi, AG 

(collectively, Volkswagen) used “defeat devices” in 500,000 

 1 Various appellants filed eighteen separate notices of appeal from 

the district court’s order, seventeen of which are consolidated here. (The 

eighteenth appeal—Autoport, LLC v. Volkswagen Group of America, 

Inc., No. 17-16066—was later severed from the consolidation and is 

addressed in a concurrently filed memorandum disposition.) The law 

firms represented in fifteen of the seventeen consolidated appeals signed 

on to the brief prepared by Appellants Nagel Rice, LLP and Hyde & 

Swigart, while Appellants James Ben Feinman and Ronald Clark 

Fleshman, Jr. submitted their own, separate brief. Appellant Bishop, 

Heenan & Davies LLC did not sign either of these briefs, and did not 

submit its own.
40 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

Volkswagen- and Audi-branded TDI “clean diesel” vehicles. 

As the district court later explained,

[T]he defeat device produces regulationcompliant results when it senses the vehicle 

is undergoing testing, but operates a less 

effective emissions control system when the 

vehicle is driven under normal 

circumstances. It was only by using the 

defeat device that Volkswagen was able to 

obtain Certificates of Conformity from EPA 

and Executive Orders from [the California 

Air Resources Board] for its TDI diesel 

engine vehicles. In reality, these vehicles 

emit nitrogen oxides (“NOx”) at a factor of 

up to 40 times over the permitted limit.

Two months later, the EPA issued a second NOV to 

Volkswagen and Defendant-Appellee Porsche Cars of North 

America, Inc., which implicated the companies’ 3.0-liter 

diesel engine vehicles.

II. Procedural Background

A. Commencement of Lawsuits

Soon after the issuance of the NOVs, consumers 

nationwide commenced hundreds of lawsuits. One such 

action was spearheaded by Appellant Nagel Rice, LLP 

(Nagel Rice), an illustrative law firm that represented fortythree Volkswagen owners from various states. Nagel Rice 

filed a complaint in New Jersey federal court on September 

21, 2015—three days after the issuance of the first NOV and 

two months before the eventual consolidation of all related 

cases. During this early representation, Nagel Rice asserts 

that it performed various activities related to the litigation, 
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 41

including conducting research, fielding calls from 

prospective clients and the media, and communicating with 

German legal counsel regarding potential jurisdictional and 

evidentiary issues.

Eventually, on December 8, 2015, the Judicial Panel on 

Multidistrict Litigation consolidated the various lawsuits 

and transferred them to the U.S. District Court for the 

Northern District of California. Ultimately, the district court 

received more than one thousand Volkswagen cases as part 

of this multidistrict litigation (MDL), titled In re Volkswagen 

“Clean Diesel” Marketing, Sales Practices, & Product 

Liability Litigation, MDL 2672.

B. Pretrial Orders

On December 9, 2015—the day after the consolidation 

and transfer—the district court issued its first pretrial order 

(PTO), in which it announced its intent “to appoint a 

Plaintiffs’ Steering Committee(s) to conduct and coordinate 

the pretrial stage of this litigation with the defendants’ 

representatives or committee.” Nagel Rice was one of the 

firms that submitted papers to be selected either as Lead 

Counsel or as a member of the Plaintiffs’ Steering 

Committee (PSC).

The district court selected a twenty-one-member PSC 

following the application process, and appointed it and Lead 

Counsel (together, Class Counsel) in its seventh PTO (PTO 

No. 7). This PTO asserted that “as to all matters common to 

the coordinated cases, and to the fullest extent consistent 

with the independent fiduciary obligations owed by any and 

all plaintiffs’ counsel to their clients and any putative class, 

[] pretrial proceedings shall [be] conducted by and through 

the PSC.”
42 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

In its eleventh PTO (PTO No. 11), filed on February 25, 

2016, the district court outlined its protocol for common 

benefit work and expenses. The court explained that “[t]he 

recovery of common benefit attorneys’ fees and cost 

reimbursements will be limited to ‘Participating Counsel,’” 

which it defined as

Lead Counsel and members of the Plaintiffs’ 

Steering Committee (along with members 

and staff of their respective firms), 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.

It further elaborated that “Participating Counsel shall be 

eligible to receive common benefit attorneys’ fees and 

reimbursement of costs and expenses only if the time 

expended, costs incurred, and activity in question were (a) 

for the common benefit of Plaintiffs; (b) timely submitted; 

and (c) reasonable.” As to the first requirement—“for the 

common benefit of Plaintiffs”—the district court explained 

that

[o]nly Court-appointed Counsel and those 

attorneys working on assignments therefrom 

that require them to review, analyze, or 

summarize those filings or Orders in 

connection with their assignments are doing 

so for the common benefit. All other counsel 

are reviewing those filings and Orders for 

their own benefit and that of their respective 
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 43

clients and such review will not be 

considered Common Benefit Work.

(emphasis added). Class Counsel later reported that “Lead 

Counsel took advantage of the authority granted in PTO 7 to 

enlist and authorize nearly 100 additional firms to perform 

the necessary common benefit work, which was then tracked 

pursuant to the protocol set forth in PTO 11.”2

The PTOs’ guidance notwithstanding, Nagel Rice claims 

that, although it was not selected to be Lead Counsel or a 

member of the PSC, it “appeared telephonically in almost 

every court appearance relative to the case and provided 

continual updates to clients via email,” and “fielded scores 

of telephone calls from clients and other class members 

seeking information relative to the settlement and the 

process for submitting objections and claims.” Similarly, 

another lawyer, Appellant James Ben Feinman, extensively 

litigated on behalf of 403 individual clients in Virginia state 

and federal courts, in addition to monitoring the MDL. 

There is no indication in the record that Nagel Rice, 

Feinman, or any other Appellants fully complied with the 

PTOs in performing these efforts.

C. Settlement Process

Class Counsel, along with ninety-seven additional 

plaintiffs’ firms that Lead Counsel enlisted pursuant to PTO 

 2 For example, PSC chair Elizabeth Cabraser attested that “prior to 

the filing of the Consolidated Consumer Class Action Complaint, [she] 

requested all firms who had submitted leadership applications and other 

interested firms to submit information on plaintiffs interested in serving 

as proposed class representatives. Information on [] nearly 600 plaintiffs 

was submitted by dozens of firms. All of these firms were asked to 

submit their time for this effort under PTO 11.” (citation omitted).
44 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

No. 11, embarked on an aggressive settlement process that, 

in the words of Settlement Master Robert S. Mueller III, 

“involved at least 40 meetings and in-person conferences at 

various locations, including San Francisco, New York City, 

and Washington, DC, over a five-month period. A number 

of these sessions lasted many hours, both early and late, and 

weekends were not excluded.” The efforts undertaken by 

this group included drafting a 719-page consolidated class 

action complaint, selecting class representatives, requesting 

and reviewing more than 12 million pages of Volkswagen 

documents, and conducting settlement negotiations.

The district court preliminarily approved the resulting 

Consolidated Consumer Class Action Settlement (the 

Settlement) on July 29, 2016. In their motion for preliminary 

approval, the class action’s plaintiffs (Plaintiffs) asserted 

that “[n]one of the settlement benefits for Class Members 

will be reduced to pay attorneys’ fees or to reimburse 

expenses of Class Counsel. Volkswagen will pay attorneys’ 

fees and costs separately and in addition to the Settlement 

benefits to Class Members.”

The court filed its final approval of the Settlement on 

October 25, 2016. As of November 2017—one year before 

the end of the claims period—the claims of more than 

300,000 class members had been submitted and finalized, 

resulting in payments of nearly $7 billion.

D. Recovery of Attorneys’ Fees

Notably, for purposes of these appeals, section 11.1 of 

the Settlement read in part as follows:

Volkswagen agrees to pay reasonable 

attorneys’ fees and costs for work performed 

by Class Counsel in connection with the 
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 45

Action as well as the work performed by 

other attorneys designated by Class Counsel 

to perform work in connection with the 

Action in an amount to be negotiated by the 

Parties and that must be approved by the 

Court. . . . If the Parties reach an agreement 

about the amount of attorneys’ fees and costs, 

Class Counsel will submit the negotiated 

amount to the Court for approval. . . . The 

Parties shall have the right to appeal the 

Court’s determination as to the amount of 

attorneys’ fees and costs.

Volkswagen and Class Counsel eventually agreed to an 

award of $175 million in attorneys’ fees and costs, which the 

district court granted on March 17, 2017.

In November 2016, Volkswagen informed the district 

court that it had begun receiving “notices of representation 

from [attorneys] purporting to assert attorneys’ fee liens on 

payments made to certain class members under” the 

Settlement. The district court also began to receive motions 

for attorneys’ fees and costs. In response, the court issued 

an order regarding attorneys’ liens (the Lien Order) on 

November 22, 2016. It noted that a purpose of the 

Settlement was to “ensure[] Class Members who participate 

in a Buyback have sufficient cash to purchase a comparable 

replacement vehicle and thus facilitate[] removal of the

polluting vehicles from the road.” The court continued,

An attorneys’ lien on a Class Member’s 

recovery frustrates this goal. By diverting a 

portion of Class Members’ compensation to 

private counsel, a lien reduces Class 

Members’ compensation and places them in 
46 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

a position where they must purchase another 

vehicle but lack the funds to do so. Put 

another way, attorneys—notably, attorneys 

who did not have a hand in negotiating the 

Settlement—stand to profit while their clients 

are left with inadequate compensation.

Accordingly, pursuant to its power under the All Writs Act, 

the district court “enjoin[ed] any state court proceeding 

relating to an attorneys’ lien on any Class Member’s 

recovery under the Settlement.”

However, acknowledging that “some attorneys may have 

provided Class Members with compensable services,” the 

court also established a procedure for recovery of attorneys’ 

fees, requiring “a separate application for each Class 

Member” that would include “the amount sought; the 

specific legal service(s) provided, including time records; 

and the terms of the fee agreement that require such an 

award.” The court ultimately received 244 applications, 

including one from Nagel Rice.

Feinman, the Virginia lawyer who continued his 

litigation activities even after consolidation and appointment 

of Class Counsel, filed an objection to the Lien Order 

injunction and requested more time to comply with the 

procedure for fee applications. In his objection, he explained 

the propriety of his attorney’s lien in Virginia, and called 

into question the district court’s federal question jurisdiction 

over the claims of his clients. He concluded that “this 

Honorable Court has no right, authority or power to annul or 

repeal Virginia law in regard to statutorily-created liens for 

attorneys’ fees. To do so violates the property rights of Mr. 

Feinman without due process of law, and violates the Full 

Faith and Credit Clause of the United States.”
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 47

After reviewing the 244 fee applications, the district 

court issued an order (the Fee Order) in which it determined 

that “Volkswagen did not agree to pay these fees and costs 

as part of the Settlement, and [] Non-Class Counsel have not 

offered evidence that their services benefited the class, as 

opposed to their individual clients,” and consequently 

denied the motions. The court concluded that “Non-Class 

Counsel’s filing of individual and class complaints prior to 

the MDL did not benefit the class” because, due to the short 

time between the first NOV and consolidation of the MDL, 

little pretrial activity occurred that might have driven 

settlement negotiations. It also noted that although “NonClass Counsel offer[ed] evidence that . . . they fielded 

hundreds of phone calls from prospective and actual clients,” 

these efforts “at most benefited individual class members, 

not the class as a whole.” As for work undertaken after 

appointment of Class Counsel, the court determined that, due 

to its PTOs, “Non-Class Counsel [] were on notice that they 

would not receive common benefit compensation for these 

efforts,” and had also been informed of the required 

compensation procedure outlined in PTO No. 11. Finally, 

the district court concluded that “the time Non-Class 

Counsel spent advising class members on the terms of the 

Settlement” was “duplicative of that undertaken by Class 

counsel, and therefore did not ‘confer[] a benefit beyond that 

conferred by lead counsel.’” (alteration in original) (quoting 

In re Cendant Corp. Sec. Litig., 404 F.3d 173, 191 (3d Cir. 

2005)). Consequently, the court denied the 244 fee 

applications.

In denying the applications, the district court also 

recognized that “[w]hile Non-Class Counsel are not entitled 

to fees from Volkswagen as part of this class action, NonClass Counsel may be entitled to payment of certain fees and 

costs pursuant to attorney-client fee agreements.” 
48 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

Accordingly, the court vacated the Lien Order and its 

accompanying injunction on state court actions to facilitate 

such recovery.

These appeals followed.

STANDARD OF REVIEW AND JURISDICTION

An order denying attorneys’ fees is reviewed for abuse 

of discretion. Lane v. Residential Funding Corp., 323 F.3d 

739, 742 (9th Cir. 2003). “Findings of fact are reviewed for 

clear error; conclusions of law are reviewed de novo.” 

Stetson v. Grissom, 821 F.3d 1157, 1163 (9th Cir. 2016). We 

have jurisdiction pursuant to 28 U.S.C. § 1291.

ANALYSIS

Nagel Rice and the other Appellants that signed its brief 

(collectively, Nagel Appellants) suggest that “[t]his appeal 

presents an issue of first impression in the Ninth Circuit: 

whether Independent Counsel who performed services and 

incurred costs in a multi-district litigation prior to the 

appointment of Lead Counsel are entitled to an award of fees 

and costs, or are only the firms appointed to leadership roles 

entitled to a fee award for services performed prior to their 

appointment.” In truth, however, the central issue before us 

is narrower: whether the district court abused its discretion 

when it denied Appellants’ motions for attorneys’ fees. 

Appellants’ challenges to the Fee Order raise various legal 

issues, which we will address in turn.

I. Standing

As a threshold matter, Volkswagen argues that 

Appellants lack standing to appeal. It premises this 

contention on our previous determination that “the right to 
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 49

seek attorney’s fees [is vested] in the prevailing party, not 

her attorney, and [] attorneys therefore lack standing to 

pursue them.” Pony v. County of Los Angeles, 433 F.3d 

1138, 1142 (9th Cir. 2006). Because Appellants are law 

firms and lawyers that appeal in their own names (with the 

exception of Appellant Ronald Clark Fleshman, Jr., who is 

one of Feinman’s clients and joins his attorney’s appeal), 

Volkswagen contends that Appellants lack standing to 

vindicate a right that is properly vested with their clients, the 

underlying class members.

We disagree. Nagel Appellants correctly observe that 

the cases on which Volkswagen relies, Pony included, 

concerned statutory attorneys’ fees provisions. See Pony, 

433 F.3d at 1142 (discussing fees authorized pursuant to 

42 U.S.C. § 1988). Here, by contrast, Appellants did not 

seek fees pursuant to statute, and so we cannot base our 

conclusion on Pony or other similar cases.

Instead, we conclude that, as a matter of first principles, 

Appellants have the most compelling case for standing 

because they suffered an injury (deprivation of attorneys’ 

fees) that was caused by the conduct complained of (the Fee 

Order) and would be redressed by judicial relief. See Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); cf. Glasser 

v. Volkswagen of Am., Inc., 645 F.3d 1084, 1088–89 (9th Cir. 

2011) (concluding that class plaintiffs in a non-common 

fund case lacked standing to appeal an attorneys’ fee award 

to class counsel because it did not affect class plaintiffs’ 

recovery and so they were not “‘aggrieved’ by the fee 

award” (quoting In re First Capital Holdings Corp. Fin. 

Prods. Sec. Litig., 33 F.3d 29, 30 (9th Cir. 1994))). Here, 

Appellants were aggrieved by the district court’s denial of 

their motions for attorneys’ fees. Therefore, we conclude 
50 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

that Appellants properly have standing to challenge the Fee 

Order.3

II. The Fee Order

Federal Rule of Civil Procedure 23 permits a court to 

“award reasonable attorney’s fees and nontaxable costs that 

are authorized by law or by the parties’ agreement.” Fed. R. 

Civ. P. 23(h). Various courts, including our own, have 

determined that even non-class counsel can be entitled to 

attorneys’ fees. See, e.g., Stetson, 821 F.3d at 1163–65 (9th 

Cir. 2016) (indicating that an objector can be entitled to 

attorneys’ fees in a class action); In re Cendant, 404 F.3d at 

195 (concluding that an attorney who “creates a substantial 

 3 We note that Nagel Appellants premise their standing argument on 

cases involving common settlement funds, from which both the Supreme 

Court and this court have acknowledged that litigants and lawyers have 

a right to recover fees. See Boeing Co. v. Van Gemert, 444 U.S. 472, 

478 (1980); Vincent v. Hughes Air W., Inc., 557 F.2d 759, 769 (9th Cir. 

1977). However, as the district court correctly noted, “[t]he Settlement’s 

Funding Pool is not a traditional common fund from which settlement 

proceeds are to be paid . . . . Volkswagen agreed to pay Plaintiffs’ fees 

and costs in addition to the payments to the Class rather than from the 

fund created for payments to the Class.” Cf. 5 William B. Rubenstein, 

Newberg on Class Actions § 15:53 (5th ed. 2018) (“[I]n common fund 

cases the prevailing litigants [pay] their own attorney’s fees . . . . [T]he 

common fund doctrine allows a court to distribute attorney’s fees from 

the common fund that is created for the satisfaction of class members’ 

claims . . .” (emphasis added)). Although Nagel Appellants invoked the 

common fund doctrine in their brief, their counsel at oral argument 

clearly stated that they sought fees not from the $10 billion-plus class 

settlement, but instead from the separate $175 million fee recovery that 

Volkswagen paid Class Counsel. Absent a traditional common fund 

from which both class members and Class Counsel drew money, this is 

not a traditional common fund case, and so Nagel Appellants cannot rely 

on common fund precedent as controlling when different considerations 

apply to standing in non-common fund cases.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 51

benefit for the class” can be “entitled to compensation 

whether or not chosen as lead counsel”).

Although Rule 23 permits an award of fees when 

authorized by law or the parties’ agreement, courts

have an independent obligation to ensure that 

the award, like the settlement itself, is 

reasonable, even if the parties have already 

agreed to an amount. The reasonableness of 

any fee award must be considered against the 

backdrop of the “American Rule,” which 

provides that courts generally are without 

discretion to award attorneys’ fees to a 

prevailing plaintiff unless (1) fee-shifting is 

expressly authorized by the governing 

statute; (2) the opponents acted in bad faith or 

willfully violated a court order; or (3) “the 

successful litigants have created a common 

fund for recovery or extended a substantial 

benefit to a class.”

In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 

941 (9th Cir. 2011) (emphasis added) (citations omitted) 

(quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 

421 U.S. 240, 275 (1975) (Marshall, J., dissenting)). Here, 

there is no dispute that neither the first nor the second 

scenario is applicable. Therefore, Appellants would be 

entitled to attorneys’ fees only if they contributed to the 

creation of a common fund or otherwise benefited the class. 

Because the underlying class action did not feature a 

traditional common fund from which attorneys’ fees were 

procured,4 Appellants could only have collected fees if they 

 4 See supra note 3.
52 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

provided a substantial benefit to the class, as the district 

court correctly recognized. See Vizcaino v. Microsoft Corp., 

290 F.3d 1043, 1051–52 (9th Cir. 2002) (“Because objectors 

did not . . . substantially benefit the class members, they 

were not entitled to fees.” (citing Bowles v. Wash. Dep’t of 

Ret. Sys., 847 P.2d 440, 449–50 (Wash. 1993))).

This is the central issue across the consolidated appeals: 

whether Appellants’ efforts meaningfully benefited the 

class, and whether the district court abused its discretion 

when it concluded that they did not and denied their fee 

motions on that basis.

A. Common Benefit Work

We ultimately conclude that the district court did not 

abuse its discretion when it determined that the efforts of 

non-Class Counsel for which they sought fees did not benefit 

the class such that they would be entitled to compensation.

In their reply brief, Nagel Appellants summarize the 

efforts for which they sought reimbursement:

Commencing hundreds of lawsuits nationwide after 

public disclosure of the first NOV and before the 

advent of the MDL;

Filing motions, including “at least four motions to 

preserve evidence” and “at least three motions for 

interim lead counsel positions”;

Conducting early settlement efforts prior to 

consolidation;

Conducting preliminary discovery;
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 53

Presenting “at least eight conferences for attorneys 

across the country to analyze, discuss, and refine 

approaches to bringing the cases”;

Securing the appointment of two mediators in several 

New Jersey actions prior to consolidation;

Researching potential causes of action;

“Fielding and vetting [] hundreds of phone calls from 

prospective clients,” as well as press inquiries;

Communicating and coordinating with other

attorneys;

“Communicating with prospective German legal 

counsel regarding potential jurisdiction issues and 

possible efforts to secure key evidence from a foreign 

country”;

“[A]ppearing in New Orleans with a group of other 

local law firms to argue in support of the transfer and 

consolidation of all the cases to the State of New 

Jersey, where [Volkswagen] is incorporated and 

where it maintains key management offices”;

Appearing telephonically in court appearances and 

providing updates to clients after the appointment of 

Class Counsel.

Our analysis will first consider those efforts undertaken prior 

to the appointment of Class Counsel, before addressing work 

performed subsequently.

i. Work Before Appointment of Class Counsel
54 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

As Plaintiffs correctly note, “[E]ven assuming these 

activities are all attributable to the Appellants, [they] fail to 

establish how, precisely, these activities benefitted the Class. 

This shortcoming is fatal to Appellants’ appeals.” In In re 

Cendant, a case on which Nagel Appellants frequently rely, 

the court distinguished between work that benefits a class 

and other, non-compensable work:

[W]e do not think that attorneys can simply 

manufacture fees for themselves by filing a 

complaint in a securities class action. On the 

other hand, attorneys who alone discover 

grounds for a suit, based on their own 

investigation rather than on public reports, 

legitimately create a benefit for the class, and 

comport with the purposes of the securities 

laws. Such attorneys should generally be 

compensated out of the class’s recovery, even 

if the lead plaintiff does not choose them to 

represent the class. More generally, 

attorneys whose complaints contain factual 

research or legal theories that lead counsel 

did not discover, and upon which lead 

counsel later rely, will have a claim on a share 

of the class’s recovery.

404 F.3d at 196–97 (footnote omitted). Undoubtedly, 

Appellants undertook various pre-consolidation efforts on 

behalf of their individual clients, but there is no indication, 

either in the voluminous record they provided or in the 

briefs, that this work contributed to the negotiation or 

crafting of the Settlement or otherwise benefited the class in 

any meaningful way. Appellants may have filed complaints 

and conducted preliminary discovery and settlement work 

on behalf of their clients before consolidation of the MDL 
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 55

and appointment of Class Counsel, but they do not appear to 

have discovered grounds for suit outside of the information 

contained in the widely publicized NOVs, or otherwise 

provided guidance or insights that were later used in 

securing the Settlement. In short, Appellants have not 

demonstrated that, in Plaintiffs’ words, “they engaged in 

serious settlement efforts, much less that any such efforts 

contributed to the class settlement framework that was 

ultimately reached, approved, and successfully 

implemented.” Therefore, the district court did not abuse its 

discretion when it concluded that there “was little to any 

pretrial activity in the cases filed by Non-Class Counsel, and 

the filings alone did not materially drive settlement 

negotiations with Volkswagen.”5

ii. Work After Appointment of Class Counsel

Nagel Appellants indicate that most of their postappointment efforts consisted of fielding inquiries from 

prospective clients, explaining the process and mechanics of 

the Settlement, and “remain[ing] updated on the case.” Such 

work was specifically mandated by PTO No. 11, which also 

emphasized that “[o]nly Court-appointed Counsel and those 

attorneys working on assignments therefrom that require 

them to review, analyze, or summarize those filings or 

Orders in connection with their assignments are doing so for 

 5 Although Nagel Appellants claim that Class Counsel’s work 

“consisted of combining/duplicating the work of others to file an 

amended complaint followed by their negotiation of the terms of the 

settlement and the preparation of settlement documents,” and thus “was 

ipso facto the ongoing work by all counsel in the early months following 

the September 2015 public disclosure of the cheat devices,” this assertion 

is countered by Class Counsel’s motion for attorneys’ fees, which 

recounted their extensive, non-duplicative efforts on behalf of the 

Settlement.
56 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

the common benefit. All other counsel are reviewing those 

filings and Orders for their own benefit and that of their 

respective clients and such review will not be considered 

Common Benefit Work.” (emphasis added). The district 

court applied similar restrictions to attendance at status 

conferences (“Individual attorneys are free to attend any 

status conference . . . but except for Lead Counsel and 

members of the Plaintiffs’ Steering Committee or their 

designees, attending and listening to such conferences is not 

compensable Common Benefit Work”), pleading and brief 

preparation (the court specified that “factual and legal 

research and preparation of consolidated class action 

complaints and related briefing” would be compensable), 

and attendance at seminars (“Except as approved by Lead 

Counsel, attendance at seminars . . . shall not qualify as 

Common Benefit Work”). (emphasis added). Therefore, 

under the PTOs issued pursuant to the managerial authority 

possessed by the district court, Appellants’ postappointment work did not benefit the class and hence was 

not compensable.

No Appellant challenges the PTOs or the district court’s 

authority to issue them. Indeed, the Federal Judicial Center 

has noted that a court will often “need to institute procedures 

under which one or more attorneys are selected and 

authorized to act on behalf of other counsel and their clients 

with respect to specified aspects of the litigation,” and 

further encouraged that “[e]arly in [complex] litigation, the 

court should define designated counsel’s functions, 

determine the method of compensation, specify the records 

to be kept, and establish the arrangements for their 

compensation, including setting up a fund to which 

designated parties should contribute in specified 

proportions.” Manual for Complex Litigation §§ 10.22, 

14.215 (4th ed. 2004); see also Ready Transp., Inc. v. AAR 
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 57

Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (“It is well 

established that ‘[d]istrict courts have inherent power to 

control their docket.’” (alteration in original) (quoting 

Atchison, Topeka & Santa Fe Ry. Co. v. Hercules Inc., 

146 F.3d 1071, 1074 (9th Cir. 1998))); Kern Oil & Ref. Co. 

v. Tenneco Oil Co., 792 F.2d 1380, 1388 (9th Cir. 1986) 

(permitting district court’s pretrial order to govern recovery 

of attorneys’ fees). Accordingly, given the district court’s 

inherent power to manage the MDL, as well as its discretion 

in granting attorneys’ fees, there is no dispute that 

Appellants were required to abide by the PTOs, including 

PTO No. 11. We are told that nearly 100 other law firms 

followed the PTOs, and received compensation accordingly. 

But there is no indication in the record before us that 

Appellants fully adhered to the PTOs’ guidance and 

procedures.

iii. Summation

Ultimately, we agree with Plaintiffs’ summary of the 

work undertaken by Appellants and attested to by the 

voluminous documentation provided to the district court:

Appellants chose to represent individual 

clients who were Class Members in a 

consolidated class action prosecuted by a 

leadership team appointed by the District 

Court. In so choosing, these attorneys 

knowingly undertook work that the District 

Court had correctly concluded would inure 

only to the benefit of their individual clients, 

and not to the Class as a whole. In other 

words, these lawyers knew that, although 

their work might establish a right to recovery 

under their respective attorney-client 

agreements and subject to the ethical 
58 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

constraints on lawyers, it would not be 

compensable through any petition in the 

MDL.

Appellants point to nothing in the 13,000-page record that 

indicates that the work they performed on behalf of their 

individual clients, either before or after appointment of Class 

Counsel, informed the Settlement or otherwise benefited the 

class.6 Furthermore, the district court explicitly precluded 

compensation for many of these efforts in its PTOs.7

As the Third Circuit concluded in In re Cendant, “The 

mere fact that a non-designated counsel worked diligently 

and competently with the goal of benefiting the class is not

sufficient to merit compensation. Instead, only attorneys 

‘whose efforts create, discover, increase, or preserve’ the 

class’s ultimate recovery will merit compensation from that 

recovery.” 404 F.3d at 197 (quoting In re Gen. Motors Corp. 

Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 

820 n.39 (3d Cir. 1995)). Here, the record clearly indicates 

that Appellants worked diligently and presumably 

 6 In their reply brief, Nagel Appellants suggest that one firm, 

Appellant Ryder Law Firm, P.C. (Ryder), benefited the class by 

“provid[ing] the Court with comments in relation to the proposed 

settlement.” However, the excerpts of the record to which Nagel 

Appellants point do not demonstrate that Ryder actually did this, let 

alone that its contributions were utilized in any way by Class Counsel, 

Volkswagen, or the district court.

7 Additionally, the district court expressly set forth a process through 

which non-Class Counsel could receive reimbursement for any work that 

was “for the common benefit of Plaintiffs,” was “timely submitted,” and 

was “reasonable.” However, no Appellant argues that it was authorized 

by Lead Counsel to perform work, of common benefit or otherwise, and 

then submitted time records as required by the district court’s protocol.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 59

competently for their clients. But because there is no 

indication that any of these efforts actually benefited the 

class and complied with the PTOs, the district court did not 

abuse its discretion, by either applying the wrong law or 

relying on erroneous factual determinations, when it denied 

Appellants’ motions for attorneys’ fees.

B. Additional Arguments

Nagel Appellants advance three additional arguments as 

to how the district court abused its discretion when it issued 

the Fee Order.8 We will consider each in turn.

i. Explanation of Denial

Nagel Appellants assert that “[t]he District Court should 

have, but did not, support its denial with a clear explanation 

based upon an evaluation of the underlying fee petitions. 

This was legal error.” We disagree. The district court was 

required only to “articulate with sufficient clarity the manner 

in which it ma[de] its determination.” Carter v. Caleb Brett 

 8 In the “Issues Presented” section of their opening brief, Nagel 

Appellants identify a fourth additional issue: “whether the District Court 

erred in the selection of the lead firms by requesting that the firms 

indicate the support of other firms applying for the appointment and 

considering this ‘popularity’ factor.” However, they provide no 

substantive argument to accompany this issue, either in that introductory 

section or anywhere else in the brief, and the issue is not raised in the 

opposition briefs or in Nagel Appellants’ reply. We will therefore treat 

the issue as waived. See In re Worlds of Wonder Sec. Litig., 35 F.3d 

1407, 1424 (9th Cir. 1994) (“[L]ack of argument waives an appeal of 

[an] issue.”). Incidentally, a district court’s selection of class counsel is 

reviewed for abuse of discretion, see Sali v. Corona Reg’l Med. Ctr., 

889 F.3d 623, 634–35 (9th Cir. 2018), and we see no indication that the 

district court’s consideration of this or any other factor when it selected 

Class Counsel constituted such an abuse.
60 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

LLC, 757 F.3d 866, 869 (9th Cir. 2014) (quoting Quesada v. 

Thomason, 850 F.2d 537, 539 (9th Cir. 1988)); see also

McGinnis v. Ky. Fried Chicken of Cal., 51 F.3d 805, 809 (9th 

Cir. 1994) (determining that “when ruling on the appropriate 

amount of fees, no rote recitation [of factors] is necessary” 

where the court’s “decision gives [] no basis for doubting 

that [it] was familiar with controlling law” and there is no 

“factor which the judge failed to consider”). Here, the 

district court sufficiently explained its decision. It first set 

forth the guidance provided by Rule 23 and relevant 

appellate decisions, and then accurately described the 

various work Appellants performed both before and after the 

appointment of Class Counsel—none of which constituted 

“evidence that their services benefited the class as a whole.” 

This is all that we require: a description of the applicable 

standard and an engagement with the facts as illustrated by 

the fee motions. It would be unreasonable to expect the court 

to undertake an extensive analysis of each individual 

motion9 when all that is needed is engagement with the 

controlling law and explanation of the court’s reasoning. As 

Volkswagen notes, “The fact that Appellants’ fee motions 

were all found deficient for similar reasons does not make 

the District Court’s ruling insufficiently reasoned.” Because 

the district court’s order supplied the necessary level of 

explanation for its decision, it did not abuse its discretion in 

this regard.

ii. Parties’ Agreement

Noting that Rule 23 permits recovery of fees “that are 

authorized . . . by the parties’ agreement,” Fed. R. Civ. P. 

23(h), Nagel Appellants contend that the district court 

 9 In the aggregate, these 244 motions included more than 13,000 

pages of supporting documentation.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 61

incorrectly concluded that Volkswagen did not agree to pay 

the fees at issue here as part of the Settlement. But the 

Settlement clearly provided only that “Volkswagen agrees to 

pay reasonable attorneys’ fees and costs for work performed 

by Class Counsel in connection with the Action as well as 

the work performed by other attorneys designated by Class 

Counsel to perform work in connection with the Action.” 

(emphases added). No other document filed as part of the 

Settlement indicates any additional commitment on 

Volkswagen’s part. Although Nagel Appellants suggest that 

class members were “led to believe—via the Settlement 

Agreement—that their attorneys would be reasonably 

compensated by Defendants,”10 this proposition is belied by 

the Settlement’s Long Form Notice, which read,

Class Counsel will represent you at no charge 

to you, and any fees Class Counsel are paid 

will not affect your compensation under this 

Class Action Settlement. If you want to be 

represented by your own lawyer, you may 

hire one at your own expense. It is possible 

that you will receive less money overall if 

you choose to hire your own lawyer to litigate 

against Volkswagen rather than receive 

compensation from this Class Action 

Settlement.

 10 This assertion is apparently based on language in the Long Form 

Notice that indicated that “Volkswagen will pay attorneys’ fees and costs 

in addition to the benefits it is providing to the class members in this 

Settlement.” However, on the previous page, the Notice specified that 

only Class Counsel would receive those fees.
62 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

(emphasis added).11 Accordingly, there was no agreement 

between the parties, either explicit or implicit, that 

Volkswagen would compensate Appellants for their efforts.

iii. Quantum Meruit and Unjust Enrichment

Lastly, Nagel Appellants suggest that the district court 

erred when it failed to consider the equitable principles of 

quantum meruit and unjust enrichment. However, although 

a court’s power to award attorneys’ fees might be derived 

from equity, the existence of this power alone does not 

vitiate the long-recognized requirement that the work of a 

lawyer in a case like this must benefit the class. If, as the 

district court concluded, Appellants did not provide a 

substantial benefit, then neither the class members nor Class 

Counsel would have been unjustly enriched at Appellants’ 

expense. Nagel Appellants’ invocation of quantum meruit 

therefore only begs the original question of whether nonClass Counsel’s efforts benefited the class. As they did not, 

no unjust enrichment occurred.

III. The Lien Order

Feinman, in his separate brief, ostensibly appeals, like 

the other Appellants, from the Fee Order. He indicates that 

“[t]his is an appeal from the United States District Court for 

the Northern District of California in which the trial court 

 11 Nagel Appellants note that this language appeared under the 

heading “Do I need to hire my own attorney . . . ?” and therefore, 

“[g]iven that Independent Counsel had already been retained prior to the 

Notice, Class Members would assume the provision, expressed in a 

future tense, did not apply.” But however misleading the Long Form 

Notice might have been on this point, this ambiguity certainly did not 

constitute an agreement that Volkswagen would pay non-Class 

Counsel’s fees.
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 63

determined Volkswagen is not required to pay Non-Class 

Counsel attorney fees and costs.” However, the main focus 

of his appeal, as evidenced by his preliminary statement, is 

the “injunction issued by the District Court for the Northern 

District of California in the Volkswagen Clean Diesel 

litigation enjoining efforts to assert attorney fee lien claims 

under State law”—the Lien Order. It is that injunction, and 

not the Fee Order, that is the basis of Feinman’s various 

arguments: that the injunction violated the Anti-Injunction 

Act; that the district court did not have subject matter 

jurisdiction to issue the injunction as to his Virginia lien; that 

the injunction had the effect of imposing the cost of 

removing polluting vehicles from the roadway on him; that 

the injunction was premised on an unfounded legal premise; 

that the injunction violated his due process rights; and that 

the injunction violated the Fifth Amendment. Indeed, 

Feinman’s conclusion and request for relief references only 

the Lien Order and not the Fee Order.

The district court already vacated the Lien Order and its 

injunction, and so they are no longer in effect. Therefore, all 

of the issues contained in Feinman’s brief were rendered 

moot, and we need not consider them. See Berkeley Cmty. 

Health Project v. City of Berkeley, 119 F.3d 794, 795 (9th 

Cir. 1997) (“Because the district court has vacated its 

preliminary injunction, this appeal is dismissed as moot.”). 

Both Feinman’s opening brief and his reply brief 

demonstrate that he is, in effect, asking us for an advisory 

opinion: “What Feinman wants from this appeal is a ruling 

that nothing the Northern District of California Court ruled 

can prohibit Feinman from seeking to enforce his attorney 

fee lien rights against Defendant Volkswagen. . . . Feinman 

has no interest in violating a Federal Court injunction and 

merely seeks to assert his claim in Virginia State Courts free 

from jeopardy.” He even concedes that “[i]f the concession 
64 IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION

of Volkswagen and the Plaintiff-Appellees that the issue is 

moot makes it so Feinman can have the relief requested, 

there is no need to go further.” There is no doubt that the 

issues he raised are indeed moot. Whether he “can have the 

relief requested”—which is to say, a lien against 

Volkswagen pursuant to Virginia law—is not an issue 

properly before us.12

CONCLUSION

We are sympathetic to Appellants, and have no doubt 

that many of them dutifully and conscientiously represented 

their clients. This is not necessarily a case where latecomers 

attempt to divide spoils that they did not procure.13 But 

Appellants’ efforts do not entitle them to compensation from 

the MDL, when the record indicates that they did not 

perform work that benefited the class, and that they 

 12 We might infer from Feinman’s opening brief that his 

jurisdictional challenge applies to the Fee Order as well as the vacated 

injunction. Such an argument would have no merit. We have held that 

“[a] transferee judge exercises all the powers of a district judge in the 

transferee district under the Federal Rules of Civil Procedure,” which 

includes “authority to decide all pretrial motions, including dispositive 

motions such as motions to dismiss, motions for summary judgment, 

motions for involuntary dismissal under Rule 41(b), motions to strike an 

affirmative defense, and motions for judgment pursuant to a settlement.” 

In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 

1230–31 (9th Cir. 2006) (emphasis added); see also K.C. ex rel. Erica C. 

v. Torlakson, 762 F.3d 963, 968 (9th Cir. 2014) (“There is no debate that 

a federal court properly may exercise ancillary jurisdiction ‘over attorney 

fee disputes collateral to the underlying litigation.’” (quoting Fed. Sav. 

& Loan Ins. Corp. v. Ferrante, 364 F.3d 1037, 1041 (9th Cir. 2004))). 

Therefore, the district court had jurisdiction over the attorneys’ fees 

motions.

13 See generally Florence White Williams, The Little Red Hen

(1918).
IN RE VOLKSWAGEN “CLEAN DIESEL” LITIGATION 65

neglected to follow the protocol mandated by the district 

court. We commend the district court’s efforts to 

successfully manage a massive and potentially ungainly 

MDL, and conclude that the court did not abuse its discretion 

when it determined that Appellants were not entitled to 

compensation.

Accordingly, we AFFIRM the district court’s denial of 

Appellants’ motions for attorneys’ fees.