FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS J. CAMPION, on behalf of No. 12-56784
himself and all others similarly
situated, D.C. No.
Plaintiff-Appellant, 3:09-cv-00748-
JMA-NLS
v.
OLD REPUBLIC PROTECTION OPINION
COMPANY, INC., a California
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Jan M. Adler, Magistrate Judge, Presiding
Argued and Submitted
October 10, 2014—Pasadena, California
Filed December 31, 2014
Before: Andrew J. Kleinfeld, Susan P. Graber, and
John B. Owens, Circuit Judges.
Per Curiam Opinion;
Dissent by Judge Owens
2 CAMPION V. OLD REPUBLIC PROTECTION CO.
SUMMARY*
Mootness / Class Certification
The panel dismissed, as moot, Douglas Campion’s appeal
from the district court’s order denying his motions for class
certification and leave to amend the judgment, and granting
Old Republic Protection Company, Inc.’s motion for partial
summary judgment in a diversity insurance coverage action.
After the district court granted partial summary judgment
in Old Republic’s favor, Campion and Old Republic reached
a settlement agreement, and the district court granted the
parties’ joint motion and stipulation for dismissal.
The panel applied the framework in Narouz v. Charter
Commc’ns, LLC, 591 F.3d 1261, 1264 (9th Cir. 2010), and
held that the appeal was moot because Campion, the putative
class representative, had no financial interest or other
personal interest whatsoever in class certification, and he
lacked a personal stake where he had voluntarily settled his
individual claims. The panel held that although Campion
expressly retained his right to appeal the putative class
claims, that fact made no difference.
Judge Owens dissented from the majority’s holding that
the appeal was moot, and he would hold that Campion’s
appeal remained viable, even though he voluntarily settled his
individual claims, because he retained a personal stake in the
outcome – litigating like a private attorney general on behalf
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CAMPION V. OLD REPUBLIC PROTECTION CO. 3
of the proposed class. Judge Owens would reach the merits
and hold that Campion lacked standing to pursue injunctive
relief, and that the district court correctly denied class
certification.
COUNSEL
Yury A. Kolesnikov (argued) and Francis A. Bottini, Jr.
(briefed), Bottini & Bottini, Inc., La Jolla, California, for
Plaintiff-Appellant.
Jay N. Varon (argued), Foley & Lardner LLP, Washington,
D.C.; Tammy H. Boggs (briefed), Foley & Lardner LLP, San
Diego, California, for Defendant-Appellee.
OPINION
PER CURIAM:
Douglas J. Campion appeals the district court’s orders
denying his motion for class certification, denying his motion
for leave to amend his complaint, and granting Defendant Old
Republic’s motion for partial summary judgment. For the
reasons that follow, we dismiss Campion’s appeal as moot.
Campion brought a class action against Old Republic,
alleging several causes of action, including breach of
contract, breach of the implied covenant of good faith and fair
dealing, violations of the California Consumers Legal
Remedies Act, and violations of the California Unfair
Competition Law. In essence, Campion alleges that Old
Republic, a company that sells home warranty plans,
4 CAMPION V. OLD REPUBLIC PROTECTION CO.
arbitrarily denied claims made by him and a putative class of
similarly situated policyholders of Old Republic plans, or
otherwise cheated him and this class out of benefits owed
under their policies.
Following the filing of this action and several years of
motion practice, the district court denied Campion’s motion
to certify a class of Old Republic policyholders and later
granted Old Republic’s motion for partial summary judgment
on Campion’s claims under the California Consumers Legal
Remedies Act. Those orders, as well as the district court’s
order denying Campion leave to amend his complaint after
the deadline, are now being appealed by Campion. But those
orders are not being appealed because there was a trial on the
merits or some dispositive motion filed. Nor is the case up on
appeal because Campion sought an interlocutory appeal.
Rather, after the district court granted partial summary
judgment in Old Republic’s favor, Campion and Old
Republic reached a settlement agreement and filed a joint
motion and stipulation for dismissal with the district court.
In that motion and stipulation for dismissal, Campion and Old
Republic agreed to dismiss with prejudice Campion’s
individual claims in exchange for the full amount of those
claims. The parties also agreed to dismiss without prejudice
“any class action claims and representative claims” under the
Unfair Competition Law, one of several sets of claims alleged
in Campion’s complaint.
Campion agreed to dismiss the putative class claims
without prejudice but reserved whatever right to appeal it that
he had. The joint motion and stipulation for dismissal reads,
in part, “Plaintiff expressly reserves the right to appeal the
Court’s order denying class certification, the order precluding
CAMPION V. OLD REPUBLIC PROTECTION CO. 5
Plaintiff from pursuing injunctive relief under the [Unfair
Competition Law] claim . . . and any other order in the case.”
The district court granted the joint motion and stipulation for
dismissal, and Campion brought this appeal to seek review of
the district court’s various orders.
We do not reach the merits of any of the district court’s
orders, because the appeal is moot. After the rulings in Old
Republic’s favor and before Campion’s appeal, the parties
settled all of Campion’s individual claims. Campion
expressly released all of his claims against Old Republic.
Although Campion expressly retained his right to appeal the
putative class claims, that fact makes no difference.
The test for whether an appeal is moot after the putative
class representative voluntarily settles his individual claims
is whether the class representative retains a personal stake in
the case. Narouz v. Charter Commc’ns, LLC, 591 F.3d 1261,
1264 (9th Cir. 2010). Campion argues that he has a personal
stake in getting the class certified because he maintains an
interest in the matter as a private attorney general. Our case
law, however, requires a more concrete interest. We have
found jurisdiction over an appeal of a denial of class
certification, after the putative class representative settled his
individual claims, only where the putative class representative
maintained a financial interest in class certification.
In Narouz, our leading case on this issue, we held that an
appeal is not rendered moot after the putative class
representative voluntarily settles his individual claims if the
class representative retains a personal stake that is financial
in nature. In Narouz, the putative class representative signed
a “Confidential Settlement Agreement and Release,”
providing for the full settlement and release of his claims.
6 CAMPION V. OLD REPUBLIC PROTECTION CO.
591 F.3d at 1263. Later, the putative class representative
sought class certification for settlement purposes only, but the
district court denied the motion for class certification. Id. at
1263–64. Following the district court’s denial of that motion,
the class representative filed a stipulation and request for
dismissal with prejudice as to all of his individual claims,
pursuant to the settlement agreement. Id. at 1264. The
district court entered an order terminating the case the next
day, and the class representative appealed the denial of class
certification. Id.
In analyzing whether the appeal was moot in Narouz, we
considered whether the putative class representative had a
concrete personal stake. Id. at 1265. We specifically noted
the class representative’s “obvious financial interest in
obtaining a reversal of the district court’s decision.” Id. The
class representative “retain[ed] a continued financial interest
in the advancement of the class claims, because [he] [was] to
receive an award enhancement fee ($20,000) were the court
to approve the settlement.” Id. That is to say, if Narouz won
for the class on appeal, he would get $20,000 on top of what
he already had been paid.
We applied Narouz in Evon v. Law Offices of Sidney
Mickell, 688 F.3d 1015 (9th Cir. 2012). In Evon, 688 F.3d at
1020, the plaintiff settled her substantive claim, but not the
amount of her attorney’s fees award. She had claimed more
than $90,000, obtained only $2,301.95 in district court, and
won a remand on appeal on the attorney’s fees issue. Id. at
1020, 1032–34. Her personal stake was indicated by our
remand for a recalculation, which might have been worth
almost $100,000 to her. Id. at 1032–34.
CAMPION V. OLD REPUBLIC PROTECTION CO. 7
In considering whether the plaintiff retained a “personal
stake” in the class claim sufficient to defeat the defendant’s
argument that the appeal was moot, we held that the issue
“turns on the language of her settlement agreement.” Id. at
1021. We then block-quoted the settlement agreement. Id. at
1021–22. The second of the two provisions in the settlement
agreement set forth the plaintiff’s right to recover attorney’s
fees which, as noted, were disputed on appeal. Id. Because
the plaintiff retained a financial interest on appeal, we had no
occasion to address a situation where, as here, the plaintiff
lacked a financial interest.
Applying the Narouz framework here, the appeal is moot
because Campion has no financial interest or other personal
interest whatsoever in class certification. The papers and oral
argument make it clear that, no matter what happens on
appeal, Campion would not get a penny more. Campion does
not stand to gain compensation for his claims because, under
the terms of the settlement, he received their full value. He
settled attorney’s fees and costs as well as his damages.
Campion cites Pitts v. Terrible Herbst, Inc., 653 F.3d
1081 (9th Cir. 2011), and U.S. Parole Comm’n v. Geraghty,
445 U.S. 388 (1980), for support, but those cases are
consistent with our analysis. In each of those cases, the
plaintiff’s individual claims expired involuntarily. When that
happens, the theoretical interest akin to a private attorney
general may, in some circumstances, suffice to meet Article
III requirements. But when the plaintiff voluntarily settles his
or her individual claims, we have found no case that has held
that the “private attorney general” interest suffices; all cases
look to whether the plaintiff has the requisite financial, or
otherwise personal, stake in the outcome of the class claims.
Indeed, we noted this same distinction between voluntary and
8 CAMPION V. OLD REPUBLIC PROTECTION CO.
involuntary expiration of individual claims in Evon, 688 F.3d
at 1021. We referred to “whether a named plaintiff retained
jurisdiction to appeal a denial of class certification after his
or her claims involuntarily expired” as a “related question” to
what happens when a plaintiff voluntarily settles the
individual claims. Id.
Campion concedes that he has no financial or other
personal interest in class certification. Because he settled his
individual claims, Campion lacks a personal stake in this
appeal. His appeal, therefore, must be dismissed as moot.
Appeal DISMISSED as moot.
OWENS, Circuit Judge, dissenting:
While I agree with the ultimate result in this case—
Campion loses—I dissent from the majority’s holding that
the appeal is moot. Under our current precedent, Campion’s
appeal remains viable, even if he has voluntarily settled his
individual claims, as he retained a personal stake in the
outcome—litigating like a private attorney general on behalf
of the proposed class.
The majority holds that when a named plaintiff
voluntarily settles his claim and no longer has a personal
financial stake in the litigation, he lacks Article III standing
to act on behalf of the class. But, according to the majority,
a plaintiff whose financial interest expires involuntarily
retains Article III standing. See Majority at 5–8.
CAMPION V. OLD REPUBLIC PROTECTION CO. 9
In Narouz v. Charter Communications, LLC, we held
“that when a class representative voluntarily settles his or her
individual claims, but specifically retains a personal stake as
identified by [United States Parole Commission v. Geraghty,
445 U.S. 388 (1980)], and [Deposit Guaranty National Bank
v. Roper, 445 U.S. 326 (1980)], he or she retains jurisdiction
to appeal the denial of class certification.” 591 F.3d 1261,
1264 (9th Cir. 2010). As I understand the settlement in this
case, that is what Campion did—he reserved the right to
appeal the order denying class certification to act like a
private attorney general. The majority reads a “financial-in-
nature” limitation on the personal stake language in Narouz.
While a personal stake can be and usually is financial in
nature, nothing in Narouz or any other Ninth Circuit case that
the majority cites requires the personal stake to be financial.
Courts have recognized a personal stake as including the
vindication of the class’s interests, the procedural right to
represent a class, and the right to pursue class-wide injunctive
relief. See, e.g., Geraghty, 445 U.S. at 403–05; Cameron-
Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240,
1246–47 (11th Cir. 2003); Rosetti v. Shalala, 12 F.3d 1216,
1226–27 (3d Cir. 1993); Love v. Turlington, 733 F.2d 1562,
1564–65 (11th Cir. 1984); McLaughlin v. Hoffman, 547 F.2d
918, 920–21 (5th Cir. 1977). We have held that a plaintiff
whose individual claims become moot may appeal the denial
of class certification so long as he retains “either an
individual economic interest . . . or a private-attorney-
general-like interest in having a class certified if the
requirements of Rule 23 are met . . . .” Pitts v. Terrible
Herbst, Inc., 653 F.3d 1081, 1090 (9th Cir. 2011) (emphases
added).
10 CAMPION V. OLD REPUBLIC PROTECTION CO.
Nor does our case law suggest that Article III standing to
appeal class claims turns on the voluntariness of the dismissal
of the individual claims. In Evon v. Law Offices of Sidney
Mickell, which the majority cites to support its distinction
between voluntary and involuntary dismissals, we actually
declined to adopt that distinction, reasoning instead that when
a plaintiff settles and voluntarily dismisses his or her
individual claims after the denial of class certification, we
retain jurisdiction to consider the class certification decision
so long as the language of the settlement agreement cannot
“be read to release [the] class claims.” 688 F.3d 1015, 1022
(9th Cir. 2012). Because the settlement agreement here
expressly reserved Campion’s class claims, Evon rejected the
result the majority adopts.
The majority reasons that the appeal in Evon was not
moot because we remanded that case for a recalculation of the
plaintiff’s attorney’s fees award. See Majority at 6.
However, we did not suggest in Evon that our jurisdiction
turned on the potential for an increased fee award, and such
a holding would not have made sense when attorney’s fees
“are but an ancillary matter” for which jurisdiction exists
“even when the underlying case is moot.” Zucker v.
Occidental Petroleum Corp., 192 F.3d 1323, 1329 (9th Cir.
1999). Moreover, the fees awarded in Evon pertained to the
plaintiff’s “individual claim,” 688 F.3d at 1020 (emphasis
added), and therefore could not have constituted “a financial
interest in class certification.” Majority at 5.
I read Article III’s evolution since 1980 to suggest that the
Supreme Court someday will hold that a plaintiff who
voluntarily settles his claim must retain a financial stake in
the litigation to serve as a class representative—the “private-
attorney-general-like” interest will not be enough. See, e.g.,
CAMPION V. OLD REPUBLIC PROTECTION CO. 11
Gollust v. Mendell, 501 U.S. 115, 125–26 (1991)
(recognizing that “if a security holder were allowed to
maintain a § 16(b) action after he had lost any financial
interest in its outcome, there would be serious constitutional
doubt whether that plaintiff could demonstrate the standing
required by Article III’s case-or-controversy limitation on
federal court jurisdiction”). In my view, the Supreme Court
should answer the question left open in Geraghty, 445 U.S. at
404 n.10. See, e.g., Rhodes v. E.I. du Pont de Nemours &
Co., 636 F.3d 88, 100 (4th Cir. 2011) (recognizing circuit
split on issue). But unless and until it does, I read our
precedent differently than my colleagues do.
This discussion is more academic than meaningful to
Campion, as I still think he loses. Unlike the majority, I
would reach the merits and hold that (1) Campion lacks
standing to pursue injunctive relief because his contract with
Old Republic expired before he filed suit, see Hangarter v.
Provident Life & Accident Ins. Co., 373 F.3d 998, 1021–22
(9th Cir. 2004), and (2) the district court correctly denied
class certification because Campion cannot represent an
injunctive-relief class when he lacks standing to pursue an
injunction, see Hodgers-Durgin v. de la Vina, 199 F.3d 1037,
1045 (9th Cir. 1999) (en banc).