Robert Radcliffe v. Experian Info. Solutions
818 F.3d 537
| 9th Cir. | 2016Background
- Consolidated consumer class actions alleged Experian, TransUnion, and Equifax misreported debts discharged in bankruptcy in violation of FCRA and California law; consolidated plaintiffs split into two lawyer teams (White Counsel and Hernandez Counsel).
- Parties reached a monetary settlement including conditional $5,000 incentive awards to named plaintiffs conditioned on their support of the settlement; district court preliminarily approved the settlement in 2009.
- In Radcliffe I, this Court held the conditional incentive awards created a simultaneous conflict of interest between named plaintiffs and the absent class and reversed the settlement and fee awards.
- On remand White Counsel moved to disqualify Hernandez Counsel, arguing California law mandates automatic disqualification for any simultaneous conflict of interest; Hernandez Counsel opposed and sought reappointment.
- The district court denied disqualification, reappointed Hernandez Counsel, and White Counsel appealed under 28 U.S.C. § 1292(b); the Ninth Circuit affirms, holding California does not require automatic disqualification in class actions and the district court did not abuse its discretion.
Issues
| Issue | Plaintiff's Argument (White) | Defendant's Argument (Hernandez) | Held |
|---|---|---|---|
| Whether California’s per se automatic-disqualification rule for simultaneous conflicts applies to class actions | Flatt and progeny require automatic disqualification for any simultaneous conflict; rule applies regardless of context | Automatic disqualification is inappropriate in class actions; courts should apply flexible, case-specific balancing given class-action realities | California does not require automatic disqualification in class actions; district court did not abuse discretion |
| Whether Hernandez Counsel remained adequate under Rule 23(g) after prior conflict | The prior conflict (and potential civil liability) renders Hernandez Counsel inadequate to represent the class | The conflict was temporary, cured, and does not make counsel inadequate; experience and resources weigh in favor | Hernandez Counsel are adequate under Rule 23(g); prior conflict cured and did not mandate inadequacy |
| Whether White Counsel should be appointed "best able" under Rule 23(g)(2) | White Counsel better protect absent class interests and lack the prior conflict | Hernandez Counsel are more experienced in FCRA/class-action work and better able; White Counsel overvalue damages | District court did not abuse discretion in finding Hernandez Counsel "best able" to represent the class |
| Whether the conflict required denial of fees or other remedies beyond remand instructions from Radcliffe I | Automatic remedies/disqualification should follow from conflict | Disqualification and fee sanctions are discretionary; prior opinion contemplated remand for district court to decide fees | Court reaffirms prior instruction: district court may exercise discretion on fees; disqualification not mandatory |
Key Cases Cited
- Flatt v. Superior Court, 9 Cal.4th 275 (Cal. 1994) (establishes per se disqualification rule for simultaneous representation conflicts)
- People ex rel. Dep’t of Corps v. SpeeDee Oil Change Sys., Inc., 20 Cal.4th 1135 (Cal. 1999) (reaffirms Flatt’s per se rule)
- In re Charlisse C., 45 Cal.4th 145 (Cal. 2008) (discusses automatic disqualification in simultaneous representation)
- Cal Pak Delivery, Inc. v. United States Parcel Service, Inc., 52 Cal. App. 4th 1 (Cal. Ct. App. 1997) (applies balancing test rather than invoking automatic rule in class-action disqualification context)
- Apple Computer, Inc. v. Superior Court, 126 Cal. App. 4th 1253 (Cal. Ct. App. 2005) (disqualified counsel for divided loyalties in class-action context without citing automatic rule)
- Radcliffe v. Experian Info. Sols., Inc., 715 F.3d 1157 (9th Cir. 2013) (Radcliffe I) (held conditional incentive awards created a conflict and reversed settlement)
- Rodriguez v. West Publ’g Corp., 563 F.3d 948 (9th Cir. 2009) (addressed conflicts from incentive arrangements and guided remedial discretion)
- Rodriguez v. Disner, 688 F.3d 645 (9th Cir. 2012) (held rejection of incentive awards can cure conflicts and permit fee awards thereafter)
- In re "Agent Orange" Prod. Liab. Litig., 800 F.2d 14 (2d Cir. 1986) (warns against mechanically applying non-class disqualification rules to class actions)
- Lazy Oil Co. v. Witco Corp., 166 F.3d 581 (3d Cir. 1999) (rejects automatic disqualification in class actions due to practical harms)