Wells Fargo - Prospective Intervenor’s Notice of …...on Wells Fargo’s Board of Directors,...

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GREENFIELD & GOODMAN, LLCRichard D. GreenfieldMarguerite R. GoodmanAnn M. Caidwell Ilene F. Bookler (SBN 269422) [email protected] 250 Hudson Street, 8th Floor New York, NY 10013 Telephone: (917) 495-4446

ELECTRONICALLY

F I LE DSuperior Court of California,

County of San Francisco

05/01/2019Clerk of the Court

BY:VANESSA WUDeputy Clerk

WOLF HALDENSTEIN ADLERFREEMAN & HERZ LLPBetsy C. Manifold (SBN 182450)[email protected] N. DeJong (SBN 258766) [email protected] Towers750 B Street, Suite 1820San Diego, CA 92101Telephone: (619) 239-4599Fax: (619) 234-4599

Attorneys for Prospective Intervenor R.A. Feuer

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

IN RE WELLS FARGO & COMPANY ) Lead Case No. CGC-17-561118AUTO INSURANCE DERIVATIVE )LITIGATION ) PROSPECTIVE INTERVENOR’S

) NOTICE OF MOTION AND MOTION) TO INTERVENE AND MEMORANDUM

This Document Relates To: ) OF LAW IN SUPPORT; [PROPOSED]ALL ACTIONS ) ORDERWELLS FARGO & COMPANY, )

) JUDGE: Hon. Teri JacksonNominal Defendant, ) DEPT: 613

) PETITION FILED: April 29, 2019) HEARING DATE: May 31, 2019

R.A. FEUER, )))) )

TIME: 9:30 A.M.

Plaintiff/Intervenor.

PROSPECTIVE INTERVENOR’S NTC OF MTN AND MTN TO INTERVENE

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NOTICE OF MOTION TO INTERVENE

PLEASE TAKE NOTICE that on May 31, 2019, at 9:30 am, or as soon thereafter as the

matter may be heard, in Department 613 of the Superior Court of the State of California, County of

San Francisco, located at 400 McAllister St., San Francisco, CA 94102, Prospective Intervenor

R.A. Feuer (“Mr. Feuer”) will move to intervene in this action under Code of Civil Procedure

(“Code Civ. Proc.”) section 387 and seek leave to file his proposed Complaint in Intervention.

Mr. Feuer seeks leave to intervene in this action to oppose plaintiffs’ motion for

preliminary approval of the parties’ proposed settlement (currently noticed for May 10, 2019), to

request a schedule for submission of objections to the motion for preliminary approval, and

formally object, at the appropriate time set by the Court, to final approval of the proposed

settlement should it eventually receive preliminary approval.

This is a case where plaintiffs, whose complaint has been twice dismissed at the demurrer

stage and teeters on the brink of a likely third (and final) dismissal, and the individual defendants,

facing claims for losses to Wells Fargo in excess of $1 billion from widespread alleged

wrongdoing, negotiated a proposed settlement to release those valuable claims for no monetary

consideration whatsoever to Wells Fargo and its shareholders, purported corporate therapeutic

relief that is largely illusory and superfluous, in exchange for a $2.5 million payment of attorneys’

fees to plaintiffs’ counsel. Mr. Feuer submits that this Court should press the pause button with

respect to any decision on preliminary approval to permit him to intervene and object to

preliminary approval, and, if necessary, final approval of the proposed settlement.

Mr. Feuer is entitled to intervene as of right under Code Civ. Proc. § 387(d)(1)(B) because,

as a shareholder of Wells Fargo & Co. and the named plaintiff in a related shareholder derivative

action pending in the United States District Court for the Northern District of California,1 he has a

real, immediate and concrete interest in the claims that are the subject of this action and the parties’

proposed settlement thereof. He seeks to intervene for purposes of opposing preliminary approval 1 1

1 Mr. Feuer’s Federal Action is styled R.A. Feuer, derivatively on behalf of Wells Fargo & Co. v. John D. Baker, et al., No. 3:18-cv-02866-JST (“the Federal CPI Action”).

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and objecting, if necessary, to final approval of the proposed settlement, and conducting

appropriate discovery regarding its negotiation and purported benefits, including communications

with federal regulators related thereto; as well as discovery appropriate to determine the

entitlement of plaintiffs’ counsel to attorneys’ fees and the basis for any such award.

The proponents of the settlement before this Court have advised the Judge in the Federal

CPI Action of this proposed settlement and have moved to continue currently pending case

management and other deadlines in that action, which Mr. Feuer has opposed. See Feuer Dkt. 105

and 106. They have further told the federal Judge that they will seek dismissal of the Federal CPI

Action on res judicata grounds if this proposed settlement is approved. Id. Mr. Feuer intends to

vigorously oppose any stay or dismissal of the Federal CPI Action.

The motion is based on the following memorandum of points and authorities in support of

the motion, the proposed complaint in intervention filed herewith, all papers and records filed in

this case and the arguments presented at the hearing.

Respectfully submitted,Dated: May 1,2019 WOLF HALDENSTEIN ADLER

FREEMAN & HERTZ LLP

By: /s/Brittany N. De Jong_______BRITTANY N. DEJONG

Betsy C. Manifold (SBN 182450) [email protected] Brittany N. DeJong (SBN 258766) [email protected] Symphony Towers 750 B Street, Suite 1820 San Diego, CA 92101 Telephone: (619) 239-4599 Fax: (619) 234-4599

GREENFIELD & GOODMAN, LLC Richard D. Greenfield Marguerite R. Goodman Ann M. Caldwell Ilene F. Brookler (SBN 269422) [email protected] 250 Hudson Street, 8th Floor New York, NY 10013 Telephone: (917) 495-4446

Attorneys for Plaintiff/Intervenor R.A. Feuer


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TABLE OF CONTENTS

Page No.I. INTRODUCTION.................................................................................................................. 1II. STATEMENT OF FACTS.................................................................................................... 4

A. The Federal CPI Action.............................................................................................. 4B. The Proposed Settlement of this Action.................................................................... 5

III. ARGUMENT ...........................................................................................................................7A. Mr. Feuer is Entitled to Intervene to Protect His Interests....................................... 7B. Alternatively, the Court Should Permit Mr. Feuer to Intervene...............................9

1. Mr. Feuer’s Has a Direct and Immediate Interestin this Case.....................................................................................................9

2. Mr. Feuer’s Intervention Will Not Enlarge the Issuesin this Case..................................................................................................... 10

3. Mr. Feuer’s Reasons for Intervention Outweigh anyPossible Opposition...................................................................................... 10

4. Mr. Feuer Has Followed the Proper Procedures........................................11IV. CONCLUSION .........................................................................................................................11

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TABLE OF AUTHORITIES

Page No.

CasesCal. Physicians’ Service v. Super. Ct. of L.A. Cnty.,

102 Cal. App. 3d 91 (1980).................................. 7

City and Cnty. of San Francisco v. State of California,128 Cal. App. 4th 1030 (2005)........... . ...........................................................................................' 9

Clark v. American Residential Services LLC,175 Cal. App. 4th 785 (2009).......................................................................................................... 2

Continental Vinyl Products Corp. v. Mead Corp.,27 Cal. App. 3d 543 (1972)............................................................................................................. 9

Deutschmann v. Sears, Roebuck & Co.,132 Cal. App. 3d 912 (1982)........................................................................................................... 7

Eggert v. Pac. States S & L. Co.,20 Cal. 2d 199(1942).......................................................................................................................7

Gray v. Begley,182 Cal. App. 4th 1509 (2010)..................................................................................................... 11

Hernandez v. Restoration Hardware, Inc.,4 Cal. 5th 260 (2018).......................................................................................................................7

In re Consumer Privacy Cases,175 Cal. App. 4th 545 (2009)............................................................................................................ 3

In Re Wells Fargo & Company Auto Insurance Derivative Litigation, Case No. CGC-17-561118, Order Sustaining In Part With Leave and In Part Without Leave Demurrers To Consolidated Complaint (S.F. Cnty. Super. Ct. May 8, 2018)................................................................................................5

In Re Wells Fargo & Company Auto Insurance Derivative Litigation, Case No. CGC-17-561118, Order Sustaining With LeaveTo Amend Demurrers (S.F. Cnty. Super. Ct. Sept. 25, 2018).......................................................5

In re Wells Fargo & Company Shareholder Derivative Litigation, Lead Case No. 16-cv-05541-JST.....................................................................................................2

Kennedy v. Kennedy,235 Cal. App. 4th 1474 (2015)..................................................................................................... 10

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Kullar v. Foot Locker Retail, Inc.,168 Cal. App. 4th 116 (2008).......................................................................................................... 2

Lincoln v. National Life Ins. Co. v. State Bd. of Equalization,30 Cal. App. 4th 1411 (1994).......................................................................................................... 9

Lindelli v. Town of San Anselmo,139 Cal. App. 4th 1499 (2006)........................................................................................................9

Olson v. Hopkins,269 Cal. App. 2d 638 (1969)(1969))...............................................................................................................................................9

Reliance Ins. Co. v. Super. Ct. of Santa Clara Only..84 Cal. App. 4th 383 (2000)......................................................................................................... 10

Robbins v. Alibrandi,127 Cal. App. 4th 438 (2005)..........................................................................................................4

Royal Indemnity Co., v. United Enterprises, Inc.,162 Cal. App. 4th 194 (2008)....................................................................................................... 10

Simpson v. Redwood Co. v. Cal.,196 Cal. App. 3d 1192 (1987)......................................................................................................... 9

StatutesCode Civ. Proc.

§ 387................................................................................................................................................ 11§ 387 (d)(1)(B).................................................................................................................................7§ 387 (d)(2)...................................................................................................................................... 9§ 902...................................................................................................................................................7


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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO INTERVENE

I. INTRODUCTION

Prospective Intervenor R.A. Feuer (“Mr. Feuer”) has a right to intervene in this case to

protect his interests and the interests of other Wells Fargo & Co. (“Wells Fargo” or “the

Company”) shareholders. Alternatively, Mr. Feuer should be permitted to intervene.

Mr. Feuer has an immediate and pressing stake in the outcome of this case. He is the

named plaintiff in a shareholder derivative action pending in federal court in the Northern

District of California asserting substantively similar claims, captioned R.A. Feuer, derivatively

on behalf of Wells Fargo & Co. v. John D. Baker, et al., No. 3:18-cv-02866-JST (“the Federal

CPI Action”). As required by applicable Delaware and federal law, he made a pre-suit demand

on Wells Fargo’s Board of Directors, which, as this Court has recognized, is the basis for twice

dismissing this case because no plaintiff made a pre-suit demand here.

The CPI-related claims alleged by plaintiffs in this action overlap substantively with the

claims alleged by Mr. Feuer in the Federal CPI Action. Wells Fargo has advised the Judge in the

Federal CPI Action that if the proposed settlement is finally approved, it and the Defendants will

seek dismissal of the Federal CPI Action on res judicata grounds. Feuer Dkt. 105. Mr. Feuer

vigorously opposes any attempt to stay or dismiss the Federal CPI Action, and seeks to intervene

here for the purpose of opposing and objecting to preliminary approval of the proposed2

settlement, as reflected in plaintiffs’ motion for preliminary approval filed on April 16, 2019.

When appropriate, and on such schedule as this Court may set, he also seeks to object to final

Although the case docket reflects that the motion for preliminary approval and supporting memorandum of points and authorities was electronically filed on April 16, 2019, these documents did not appear on the publicly available docket until April 22, 2019. Additionally, the Declaration of Mark C. Molumphy in support, which contains as Exhibits the Stipulation of Settlement and proposed corporate governance reforms comprising the totality of the proposed settlement consideration, either were not electronically filed as represented or, if filed, have not been posted to the public docket and are not publicly available online. Mr. Feuer’s counsel, Richard D. Greenfield, made numerous and repeated requests to Wells Fargo’s counsel for complete copies of the settlement papers, including the non-publicly available Stipulation and proposed corporate governance reforms; these requests were ignored until a set of complete settlement papers was finally provided to him after business hours on April 23, 2019.

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approval of the proposed settlement. Intervention is also necessary to preserve Mr. Feuer’s

appellate rights with respect thereto.

As an initial matter, the preliminary approval papers are inadequate for this Court to

make a reasoned determination regarding whether the proposed settlement is within the range of

possible final approval (i.e. may be fundamentally fair, adequate, reasonable and non-collusive),

and thus entitled to preliminary approval, or not. The parties have submitted no information

whatsoever as to the purported value of the corporate governance changes for which plaintiffs

claim credit; or any information regarding the value of the claims being released. As California

appellate courts have recognized, “an informed evaluation of a proposed settlement cannot be

made without an understanding of the amount that is in controversy and the realistic range of

outcomes of the litigation.” See Kullar v. Foot Locker Retail, Inc., 168 Cal. App. 4th 116, 120,

129-130 (2008) (vacating settlement approval because record did not contain information

sufficient for the court to intelligently evaluate the adequacy of the settlement); Clark v.

American Residential Services LLC, 175 Cal. App. 4th 785, 799-800 (2009) (vacating settlement

approval because court lacked sufficient information to make an informed evaluation of the

fairness of the settlement; it lacked a sufficient basis to satisfy itself that the class settlement was

within the ballpark of reasonableness).* * * 4

As Mr. Feuer will set forth fully in his formal objections, many, if not most, of the alleged corporate governance “reforms” do little more than suggest that the Company’s directors follow the law and exercise steps of ordinary prudence, pre-date either the filing this action, the commencement of settlement negotiations and/or driven by consent decrees entered into with federal banking regulators in the wake of the various scandals, including the CPI scandal.

4 The parties hereto and their counsel were, or should have been, aware of this requirement before the motion for preliminary approval was filed. The proposed settlement contemplates, as a condition to its effectiveness, the contemporaneous (but unrelated) resolution of claims pending in federal court related to Wells Fargo’s unauthorized sales practices in the matter captioned In re Wells Fargo & Company Shareholder Derivative Litigation, Lead Case No. 16-CV-05541-JST (the “Federal Sales Practices Litigation”). See Stipulation of Settlement, ¶¶ 12, 37(c). In the Federal Sales Practices Litigation, plaintiffs moved for preliminary approval on February 28, 2019 (Dkt. 270), and the federal district court entered an Order on March 20, 2019 finding that it could not rule on the pending motion for preliminary approval “because Plaintiffs’ motion does not provide the Court with any information regarding the value of the claims being released.” Dkt. 271 at 1. Plaintiffs therein filed a supplemental brief in support of preliminary approval on April 2, 2019, valuing the unauthorized sales practices claims to be worth as much as $3.5 billion (with a low end value of at least $2.5 billion. Dkt. 272 at 2-3. A decision on preliminary approval in the Federal Sales Practices Litigation remains pending. Here, in

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Trial judges function as fiduciaries for absent class members in representative actions

such as this. In re Consumer Privacy Cases, 175 Cal. App. 4th 545, 555 (2009). In that regard,

this Court’s Complex Litigation - Class Action Materials, provides a checklist for preliminary

approval, which includes submission of a “[r]easonable estimate of the nature and amount of

recovery that each class member could have obtained if plaintiffs prevailed at trial,” as well as

“[c]itations of the documents . . . used to value the settlement.” Id. at 2. Citing Kullar, this

Court’s class action guidelines stress that the parties should “[p]rovide sufficient detail to allow

[the] court to make independent evaluation of the strengths and weaknesses of the case.” Id.

(emphasis in original).5

seeking preliminary approval, Plaintiffs submitted no information regarding the value of the CPI and other claims being released.

5 Mr. Feuer also believes the proposed notice is inadequate and will fully articulate his concerns related to the proposed notice if permitted to intervene.

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Further, as the proposed complaint in intervention reflects, and as will be outlined fully if

he is permitted to intervene and object, Mr. Feuer believes the consideration offered in the

proposed settlement is illusory and grossly inadequate, and arises from the natural outcome of

disabling conflicts of interest involving counsel for the individual defendants, Shearman &

Sterling (“S&S”), the same law firm that was engaged to consider and advise, and ultimately

recommend the rejection of, Mr. Feuer’s pre-suit litigation demands involving the same alleged

wrongdoing in the Federal CPI Action. See proposed Complaint in Intervention, ^[ 7-10. In

addition to opposing preliminary approval, Mr. Feuer seeks to intervene for purposes of

objecting to the proposed settlement in the event it ultimately receives preliminary approval and

formal notice is provided to Wells Fargo shareholders. Mr. Feuer will fully articulate all of the

bases upon which he objects to the proposed settlement in such manner and on such schedule as

the Court may direct.

The current parties will not be prejudiced in any way by Mr. Feuer’s participation.

Rather, his participation will assist the Court in discharging its duty “to review the settlement as

a whole ... to ensure that it was fairly and honestly negotiated, is not collusive and adequately


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protects the interest of the corporation and of the shareholders.” Robbins v. Alibrandi. 127 Cal.

App. 4th 438, 444 (2005). The Court should therefore grant this motion.

II. STATEMENT OF FACTS

A. The Federal CPI Action

Mr. Feuer is the named plaintiff in the Federal CPI Action, which was filed on May 16,

2018 following the rejection of his pre-suit demands pursuant to Federal Rule of Civil Procedure

23.1. The Federal CPI Action seeks to hold the named defendants, officers and directors of

Wells Fargo and National General Insurance Company and National General Holdings Corp.,

(the “Insurer Defendants”) (collectively “Defendants”) responsible for the massive losses and

damages resulting from the forced-placed collateral insurance scandal (the “CPI scandal”), as

fully described in Mr. Feuer’s pending amended complaint. Feuer Dkt. 19. Currently pending

before the federal court are motions to dismiss filed by Wells Fargo and the Insurer Defendants

(Feuer Dkt. 54 and 55) which are limited by stipulation to a determination of the threshold

pleading issue of whether Mr. Feuer adequately alleged that his demands were wrongfully

refused, as required by Rule 23.1.

Mr. Feuer filed an extensive opposition to the motions to dismiss, asserting that he has

adequately alleged that his demands were wrongfully refused and detailing the disabling

conflicts of interest that permeated consideration of his demands by Wells Fargo’s Board of

Directors, its appointed Demand Review Committee (“DRC”) and its counsel, S&S. Feuer Dkt.

61. Additionally, Plaintiff filed a separate Request for Judicial Notice (“RJN”) (Feuer Dkt. 62

and 66), which Wells Fargo opposed, in part. Feuer Dkt. 65. The hearing on Defendants’

motions to dismiss and Plaintiffs related RJN took place on March 7, 2019, after having been

previously postponed at Defendants’ request.6

In connection with that previous postponement, the federal court held that to the extent Mr. Feuer objects to the proposed settlement of this action and the release of his CPI claims, the appropriate place to express his objections is before this Court. See Order entered January 29, 2019. Feuer Dkt. 76.

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B. The Proposed Settlement of this Action

Meanwhile, with the motion to dismiss briefing and conflict issues pending and

unresolved in the Federal CPI Action, the parties in this case, which has been twice dismissed,7

have been engaged in settlement negotiations that began long after Mr. Feuer’s Federal CPI

Action was filed, ultimately resulting in the proposed settlement. In that regard, Wells Fargo and

its counsel, and the individual defendants and their counsel, had a choice if they were interested

in a fully transparent, non-conflicted settlement of the CPI-related claims. They could have

engaged Mr. Feuer’s counsel in the Federal CPI Action, and counsel in this action, jointly and

simultaneously in a good faith and fully transparent effort to settle the CPI-related derivative

claims. That would have assured that the relative strengths and weaknesses of each case could

have simultaneously been taken into account in arriving at a fair, reasonable and adequate

settlement.

See In Re Wells Fargo & Company Auto Insurance Derivative Litigation, Case No. CGC- 17-561118, Order Sustaining In Part With Leave and In Part Without Leave Demurrers To Consolidated Complaint (S.F. Cnty. Super. Ct. May 8, 2018) and In Re Wells Fargo & Company Auto Insurance Derivative Litigation, Case No. CGC-17-561118, Order Sustaining With Leave To Amend Demurrers (S.F. Cnty. Super. Ct. Sept. 25, 2018). The September 25, 2018 Order states that the Court is “unlikely to grant further leave to amend.” Id. at 2.

8Indeed, in response to an Order entered in the Federal Sales Practices Litigation (see note 4,

supra; Dkt. 272 at 2) plaintiffs divulged that Director and Officer (“D&O”) liability insurance policies “available to satisfy a derivative judgment against Defendants in this case” (i.e. the same officer and director defendants sued here and in the Federal CPI Action), is $500 million.

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But that is not what Wells Fargo and the individual defendants did. Instead, they appear

to have reached out to counsel in this action at or about the same time as the complaint herein

had been dismissed for the second time and was teetering on a third dismissal, this time with

prejudice. They kept the fact of these discussions a secret from Mr. Feuer’s counsel until months

later, after they had already reached an agreement in principle to settle this action, in exchange

for a promise to pay plaintiffs’ counsel herein $2.5 million, for a proposed settlement devoid of

any monetary component or other accountability for the officer and director defendants

(notwithstanding the fact that such defendants are substantial individuals and notwithstanding the

apparent existence of substantial officers’ and directors’ liability insurance).8 For all practical


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purposes, the proposed “settlement” herein was presented to Mr. Feuer’s counsel as a take-it-or-

leave-it fait accompli. 9

9 Due to the overlapping nature of the principal claims alleged in this action and the Federal CPI Action, the parties in this case invited Mr. Feuer’s lead counsel, Richard D. Greenfield, Esquire, after the fact, to “bless” their settlement negotiations in exchange for a portion of the counsel fee to be paid. He declined to do so.

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As Mr. Feuer will specify in greater detail in his objections to both preliminary and final

approval, at the appropriate times if permitted to intervene, this sequence of events was the

ultimate manifestation and realization of the perverse conflicts of interest that have been

identified in Mr. Feuer’s Federal CPI Action - a win-win situation for all interested parties (the

officer and director defendants who would be released from liability for no discernible

consideration paid by them, their counsel, whose blatant conflicts of interest were exposed in the

motion to dismiss briefing and oral argument in the Federal CPI Action, and plaintiffs and their

counsel in this Action, who were plainly motivated by their zeal to salvage a substantial

attorneys’ fee from a floundering and likely soon-to-be-finally-dismissed lawsuit).

As discussed in detail in Plaintiffs proposed complaint in intervention, filed herewith, the

proposed settlement was negotiated by, among others, S&S, while those same attorneys were

simultaneously representing the individual director defendants in this action and advising and

assisting the Board in responding to Mr. Feuer’s litigation demands in the Federal CPI Action.

Indeed, S&S carried out the so-called “investigation” of Mr. Feuer’s pre-suit demands (that he

made but which plaintiffs herein failed to do), and advocated for the rejection of them, all the

while purporting to act on behalf of Wells Fargo and its shareholders, rather than the individual

director defendants, without disclosing its dual (and conflicting) representation of the directors in

this case to the court in the Federal CPI Action.

The reasonable doubt cast upon the independence and bona, tides of the response to Mr.

Feuer’s CPI demands in the Federal CPI Action (as set forth in his pending opposition to the

motions to dismiss) is borne out by S&S’s concurrent representation of the director defendants in

this action and the recently submitted proposed settlement - a proposed settlement that would

release the very valuable breach of fiduciary duty claims against the director defendants related


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to the CPI scandal (and other wrongdoing) for no monetary consideration, no contribution

whatsoever from the Insurer Defendants (who would be improperly released for no

consideration), and window-dressing corporate governance “reforms” that provide no

meaningful compensation for the massive losses suffered by Wells Fargo.

III. ARGUMENT

A. Mr. Feuer is Entitled to Intervene to Protect His Interests

A person is entitled to intervene as of right in litigation if he or she “claims an interest

relating to the property or transaction that is the subject of the action and that person is so

situated that the disposition of the action may as a practical matter impair or impede that person’s

ability to protect that interest, unless that person’s interest is adequately represented by one or

more of the existing parties.” Code Civ. Proc. § 387 (d)(1)(B). See also Deutschmann v. Sears,

Roebuck & Co., 132 Cal. App. 3d 912, 915 (1982); Cal. Physicians’ Service v. Super. Ct. of L.A.

Cnty., 102 Cal. App. 3d 91, 96 (1980). Mr. Feuer meets this standard and therefore is entitled to

intervene as of right.

Mr. Feuer, as a shareholder of Wells Fargo and the named plaintiff in the Federal CPI

Action involving, in part, the same alleged wrongdoing, undoubtedly has an interest in the

outcome of this action, including the fairness and adequacy of any proposed settlement.

Moreover, Mr. Feuer’s ability to protect his interests through appellate review of this Court’s

decision with respect to the fairness and adequacy of the proposed settlement (should it

ultimately receive final approval) will be foreclosed if his request to intervene is denied. The

California Supreme Court recently held, in Hernandez v. Restoration Hardware, Inc., 4 Cal. 5th

260 (2018), that Code Civ. Proc., § 902 (governing the right to appeal) requires that an objector

must be a “party” of record to a class action to gain the right to appeal the trial court’s judgment.

See also Eggert v. Pac. States S & L. Co., 20 Cal. 2d 199, 201 (1942) (unnamed class members

do not become parties of record under section 902 with the right to appeal the class settlement,

judgment or attorney fee award unless they formally intervene before the action is final).10

Although this is a shareholder derivative action, rather than a class action, it is representative in nature and thus the holding in Hernandez would appear to be equally applicable in the context of unnamed shareholders and derivative actions.

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Mr. Feuer’s interests (and, he alleges, the interests of the other shareholders of Wells

Fargo) are not being adequately protected by the parties in this action or by their counsel. The

proposed settlement was negotiated only after the plaintiffs’ operative complaint had been twice-

dismissed and when plaintiffs’ counsel had little apparent leverage to extract a meaningful

settlement. That fact is borne out in the proposed settlement. Despite the massive damages

inflicted on Wells Fargo and its shareholders as a result of the CPI scandal (to date in the range

of at least $1 billion), as well as the other valuable claims to be released, the proposed settlement

provides no monetary compensation to Wells Fargo or its shareholders; the only money that

would be paid is to plaintiffs’ counsel in the form of attorneys’ fees.

By contrast, the defendants in the Federal Action faced a robust opposition to their

motions to dismiss, which have not yet been decided, wherein the disabling conflicts of interest

of S&S, counsel for the director defendants, were disclosed by Mr. Feuer. See Feuer Dkt. 61, 62,

66. These conflicts include S&S’s simultaneous representation of the director defendants in this

action, where they filed motions advocating for the directors’ innocence with respect to the

alleged wrongdoing, and their simultaneous role as purportedly “independent” counsel assisting

and advising the same directors (i.e. Wells Fargo’s board) and the Demand Review Committee (a

subset of the directors) with respect to the investigation, evaluation, and ultimate rejection of Mr.

Feuer’s litigation demands. S&S did not disclose to the federal court its simultaneous

representation of the director defendants in this action, but begrudgingly admitted this fact after

Mr. Feuer pointed it out to the federal court in connection with his Request for Judicial Notice in

opposition to the motions to dismiss. See Feuer Dkt. 65 at 3 (“The fact of S&S’s representation

of certain Directors in that demand-futility derivative action is not in dispute . .. .”).

Clearly S&S had its own questionable motives at the time the proposed settlement was

negotiated, choosing to negotiate the proposed settlement with a substantially weakened plaintiff

and before Mr. Feuer’s allegations of conflict and lack of candor in connection with the rejection

of his litigation demands could be resolved in the Federal CPI Action. The motives of plaintiffs’

counsel were likewise suspect, as plaintiffs faced the prospect of dismissal for a third (and likely

final) time and thus the specter of receiving no attorney's fees. For these reasons, Mr. Feuer’s

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interests, and those of the other shareholders of Wells Fargo, are not adequately represented by

the existing parties or their counsel.

B. Alternatively, the Court Should Permit Mr. Feuer to Intervene

If the Court does not grant intervention as of right, it should grant permissive intervention

pursuant to Code Civ. Proc. § 387 (d)(2), which provides that “[t]he court may, upon timely

application, permit a nonparty to intervene in the action or proceeding if the person has an

interest in the matter in litigation, or in the success of either of the parties, or an interest against

both.” This provision is liberally construed in favor of intervention. Lindelli v. Town of San

Anselmo, 139 Cal. App. 4th 1499, 1505 (2006); Simpson v. Redwood Co. v. Cal., 196 Cal. App.

3d 1192, 1200(1987).

Trial courts have discretion to allow a party to intervene under Code Civ. Proc. § 387

(d)(2) where the following factors are met: (1) the proper procedures have been followed; (2) the

nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge

the issues in the litigation; and (4) the reasons for intervention outweigh any opposition by the

parties presently in the action. City and Cnty. of San Francisco v. State of California, 128 Cal.

App. 4th 1030, 1036 (2005). In weighing the various factors, the court should keep in mind the

purpose behind intervention, which is to promote fairness by involving all parties potentially

affected by the judgment to participate in the litigation. Lincoln v. National Life Ins. Co. v. State

Bd. of Equalization, 30 Cal. App. 4th 1411, 1423 (1994).

Mr. Feuer satisfies each element of this test.

1. Mr. Feuer’s Has a Direct and Immediate Interest in this Case

For purposes of permissive intervention, a “direct and immediate interest” exists when

“the moving party will either gain or lose by the direct legal operation and effect of the

judgment.” City and Cnty. of San Francisco, 128 Cal. App. 4th at 1037. “A person has a direct

interest justifying intervention in litigation where the judgment in the action of itself adds to or

detracts from his legal rights without reference to rights and duties not involved in the litigation.”

Continental Vinyl Products Corp. v. Mead Corp., 27 Cal. App. 3d 543, 549 (1972) (citing Olson

v. Hopkins, 269 Cal. App. 2d 638, 643 (1969)). Clearly, as the named plaintiff in the Federal

CPI Action and a Wells Fargo shareholder, Mr. Feuer meets this requirement.

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2. Mr. Feuer’s Intervention Will Not Enlarge the Issues in this Case

Mr. Feuer seeks to intervene for purposes of opposing preliminary approval on the

current record, formally objecting to preliminary and final approval of the parties’ proposed

settlement and conducting appropriate discovery regarding the circumstances surrounding the

settlement in support thereof. He seeks no affirmative relief in this action from any of the

parties, and will not add any new legal issues to the proceedings. Here, this Court is required to

approve the dismissal of this derivative action and the parties to the proposed settlement

contemplate notice and an opportunity for any Wells Fargo shareholder to submit objections.

See, e.g., Kennedy v. Kennedy, 235 Cal. App. 4th 1474, 1485 (2015) (dismissal of a derivative

claim requires court approval). Thus, intervention will not enlarge the issues already before the

Court.3. Mr. Feuer’s Reasons for Intervention Outweigh any Possible

Opposition

It is presently unknown whether any of the parties will oppose Mr. Feuer’s motion to

intervene. However, based on the factors outlined herein, any objections, should they occur, are

substantially outweighed by Mr. Feuer’s reasons for intervening. Before the parties’ settlement

can receive final approval, Mr. Feuer and other Wells Fargo shareholders will be given an

opportunity to present any objections. Although parties are generally free to control the scope of

the litigation they initiate, and thus courts weigh the parties’ opposition when deciding

permissive intervention, see Royal Indemnity Co., v. United Enterprises, Inc., 162 Cal. App. 4th

194, 212 (2008), this does not give the parties the power to deny Mr. Feuer the opportunity to

intervene to fully present his objections and preserve his appellate rights with respect thereto.

All Mr. Feuer seeks to do by intervening is to make sure all necessary information is

before the court so the fairness and adequacy of the settlement can be independently evaluated

with respect to both preliminary and final approval, conduct appropriate discovery and present

his objections to the proposed settlement and preserve his appellate rights with respect to this

Court’s decision on preliminary approval and possible eventual decision finally approving or

denying the proposed settlement. Courts do not elevate the parties’ opposition to intervention

over such a direct and immediate interest necessitating intervention. See, e.g., Reliance Ins. Co.

v. Super. Ct. of Santa Clara Cnty., 84 Cal. App. 4th 383, 387-88 (2000) (reversing trial court’s

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denial of permissive intervention due to opposition of party where intervening insurer had a real

stake in the controversy); Gray v. Begley, 182 Cal. App. 4th 1509, 1523 (2010) (permissive

intervention upheld over objections of parties because insured defendant attempted to settle with

the plaintiff “to the potential detriment of the insurer.”). These cases reflect the commonsense

principle that a direct and immediate interest (such as Mr. Feuer’s here) outweighs the opposition

of the parties when fairness to the intervenor requires it. Mr. Feuer’s interest in the outcome of

this litigation and potential approval of the proposed settlement outweighs any objections the

parties may have to his participation and objections to the settlement.

4. Mr. Feuer Has Followed the Proper Procedures

Code Civ. Proc. § 387 established the procedures for intervention. An intervenor must:

(1) seek leave of court; (2) submit a proposed complaint in intervention; and (3) state the grounds

upon which the intervention rests. Mr. Feuer has followed each of these procedures and,

accordingly, the Court should grant him permissive intervention.

IV. CONCLUSION

For the reasons stated herein, and based on the authority cited, the Court should grant

Prospective Intervenor R.A. Feuer leave to intervene and grant him leave to file is proposed

complaint in intervention.Respectfully submitted,

Dated: May 1,2019 WOLF HALDENSTEIN ADLERFREEMAN & HERZ LLP

By: /s/ Brittany N. DeJong_______BRITTANY N. DEJONG

Betsy C. Manifold (SBN 182450) [email protected] N. DeJong (SBN 258766) [email protected] Towers750 B Street, Suite 1820San Diego, CA 92101 Telephone: (619) 239-4599Fax: (619) 234-4599

GREENFIELD & GOODMAN, LLC Richard D. GreenfieldMarguerite R. GoodmanAnn M. Caldwell

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Hone F. Brookler (SBN 269422) [email protected] Hudson Street, 8th Floor New York, NY 10013 Telephone: (917) 495-4446


WELLS.FARGO:25591

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EXHIBIT A

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GREENFIELD & GOODMAN, LLCRichard D. GreenfieldMarguerite R. GoodmanAnn M. Caldwellllene F. Bookier (SBN 269422) [email protected] 250 Hudson Street, 8th FloorNew York, NY 10013Telephone: (917) 495-4446

WOLF HALDENSTEIN ADLERFREEMAN & HERZ LLPBetsy C. Manifold (SBN 182450) [email protected] N. DeJong (SBN 258766) [email protected] Towers750 B Street, Suite 1820San Diego, CA 92101Telephone: (619) 239-4599Fax: (619) 234-4599

Attorneys for Prospective Intervenor R.A. Feuer

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

IN RE WELLS FARGO & COMPANY ) Lead Case No. CGC-17-561118AUTO INSURANCE DERIVATIVE )LITIGATION ) [PROPOSED] COMPLAINT IN

) INTERVENTION

This Document Relates To:)) JUDGE: Hon. Teri L. Jackson

ALL ACTIONS ) DEPT: 613WELLS FARGO & COMPANY, )

)))

PETITION FILED: April 29, 2019

Nominal Defendant,

R.A. FEUER,) )))) )

Plaintiff/Intervenor.

[PROPOSED] COMPLAINT IN INTERVENTION

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R.A. Feuer (“Plaintiff/Intervenor”), for his Complaint in Intervention, alleges as follows:

A. Background re Plaintiff/Intervenor’s Interest and His Pending Federal Lawsuit

1. Plaintiff/Intervenor brings this Complaint in Intervention pursuant to section 387

of the California Code of Civil Procedure.

2. Plaintiff/Intervenor is a shareholder of Wells Fargo & Company (“Wells Fargo”

or “the Company”) and has been continuously since May of 2010.

3. Plaintiff/Intervenor brings this Complaint in Intervention in his individual

capacity as a shareholder of Wells Fargo, and as the named plaintiff in a shareholder derivative

action brought derivatively on behalf Wells Fargo, in an action styled R.A. Feuer, derivatively on

behalf of Wells Fargo & Co. v. John D. Baker, et al., No. 3:18-cv-02866-JST (“the Federal CPI

Action”), pending in the United States District Court for the Northern District of California. The

operative complaint in the Federal CPI Action is the Amended Complaint dated June 20, 2018

(“Federal CPI Complaint”). Feuer Dkt. 19.

4. The Federal CPI Action is a shareholder derivative lawsuit, filed on behalf of and

for the benefit of nominal defendant, Wells Fargo, against the individual defendants named

therein, who are current and former officers and directors of the Company, and two insurance

companies (National General Holdings Corp, and National General Insurance Company,

collectively, “National General”) who are alleged to have aided and abetted the breaches of duty

complained of in the Federal CPI Complaint. The gravamen of the Federal CPI Action is that

the defendants breached their fiduciary duties in connection with the unauthorized and forced

placement of unneeded and undisclosed collateral protection insurance (“CPI”) on hundreds of

thousands of the Bank’s automobile financing customers, hereinafter referred to as “the CPI

Scandal” and described in greater detail at 111-142 of the Federal CPI Complaint, and that

National General aided and abetted such breaches. Id.

5. The defendants in the Federal CPI Action are present and former members of the

Company’s Board of Directors (the “Board”) (Federal CPI Complaint, 19- 36), and/or present

and former members of senior management of the Company and/or its wholly-owned subsidiary,

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Wells Fargo Bank, N.A. (the “Bank”) (id., fl 36-49) (collectively, the “Individual Defendants”),

as well as defendants National General Holdings Corp, and National General Insurance

Company, who provided and administered the forced placed automobile collateral protection

insurance that is at issue with respect to certain of plaintiffs’ claims in this action. Id., fl 50-53.

6. On behalf of Plaintiff/Intervenor, his counsel sent two separate pre-suit written

demand letters to the Board pursuant to Federal Rule of Civil Procedure 23.1: an initial

demand dated December 12, 2016 (“Initial Demand” or “Initial Demand Letter”), and a

supplemental demand dated October 30, 2017 (“Supplemental Demand” or “Supplemental

Demand Letter”). Feuer Dkt. 1-2, 1-3. The Supplemental Demand is the one that is relevant

here. It requests that the Board investigate and take appropriate legal action against persons and

entities responsible for Wells Fargo’s losses and damages resulting from the CPI Scandal. Id.

7. In response to each such Demand, the Board appointed, from among its members,

a committee of purportedly “independent” directors (the “Demand Review Committee” or

“DRC”) who were charged, purportedly, with investigating Plaintiff/Intervenor’s pre-suit

demands and recommending a response by the full Board. Federal CPI Complaint, 6.

8. The DRC, in turn, retained the law firm of Shearman & Sterling, LLP (“S&S”),

purportedly as “independent” counsel to advise and assist the DRC in investigating the alleged

wrongdoing as outlined in the demand letters and to advise and assist the DRC and the Board in

determining whether to pursue litigation against the alleged wrongdoers, as demanded by

Plaintiff/Intervenor, or recommend the rejection of his demands. Federal CPI Complaint, 51 7.

9. Predictably, the Board’s members, upon direction of their heavily conflicted legal

counsel, S&S, rejected Plaintiff/Intervenor’s Demands for, inter alia, independent

investigations of the subject matter of the Demands and for the institution of legal action to

recover damages from responsible parties. Federal CPI Complaint, fl 175-218.

10. In opposing defendants’ motions to dismiss the Federal CPI Action, Plaintiff/

Intervenor demonstrated that: (a) the purportedly “independent” directors, designated by the

Board to investigate matters in which their own suspect conduct and potential liability to the

Company would hang in the balance, orchestrated investigations that were controlled and

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supervised by S&S, the very same law firm that was simultaneously representing these and

other non-employee (or “outside”) directors in this related shareholder lawsuit involving the

same alleged misconduct, and other related shareholder lawsuits involving related corporate

wrongdoing by the same individuals; and (b) that the Board did not act reasonably and in good

faith in rejecting his demands because S&S was seriously conflicted and not capable of

objectively and fairly addressing Plaintiff/Intervenor’s demands or conducting the

investigations independently and in good faith. Plaintiff/Intervenor’s memorandum identifies

the many conflicts of interest and other breaches of duty that characterize the Wells Fargo

Board’s response to Plaintiff/Intervenor’s pre-suit demands, conflicts that also drive

Plaintiff/Intervenor’s concerns with respect to the proposed settlement that has been presented

to this Court for preliminary approval. See Opposition to Motion to Dismiss the Amended

Complaint for Failure to Adequately Plead Wrongful Demand Refusal (Feuer Dkt. 61 filed

October 8, 2018) and Supplemental Brief relating thereto (Feuer Dkt. 66, filed November 5,

2018).

11. The defendants’ motions to dismiss Plaintiff/Intervenor’s “demand refused”

Federal CPI Action are fully briefed, and oral argument was held on March 7, 2019. A decision

from the federal court on these motions remains pending.

B. Relationship of Plaintiff’s Federal Action With This Action

12. Like the Federal CPI Action, this State Court Action asserts claims arising from

the CPI Scandal. The State Court Action also asserts claims based on other serious wrongdoing

by Wells Fargo’s Board of Directors and management relating to the CPI, as well as other

unrelated scandals.

13. However, no pre-suit demand was made by the plaintiffs in this State Court

Action, who have alleged, contrary to applicable law, that pre-suit demand upon the Wells Fargo

Board is excused and would be futile. The failure of the State Court Action plaintiffs to make a

pre-suit demand resulted in the dismissal of the State Court Action plaintiffs’ initial Complaint

(by Memorandum and Order Dated May 8, 2018) and their First Amended Complaint (by

Memorandum and Order Dated September 25, 2018). A Second Amended Complaint was filed

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on November 26, 2018. By Order dated December 21, 2018, this Court stayed this State Court

Action pending the Court’s consideration of the potential settlement that is presently before the

Court.

C. Plain fifths Interest Justifying Intervention

14. The Wells Fargo Board’s response to the troubling evidence presented by Feuer in

October of 2018, then unbeknownst to Plaintiff Intervenor Feuer and his counsel, was to seek out

a cheap and illusory “settlement” from the State Court Action plaintiffs (who unlike Feuer had

not made a pre-suit demand upon the Wells Fargo Board), whose case had already been

dismissed twice, whose final amended complaint was teetering in response to a fresh set of

demurrers, and who were on the brink of being out of Court.

15. Counsel for Mr. Feuer was not informed about this settlement initiative until after

material terms were reached with the California State Court Action plaintiffs. Counsel for Mr.

Feuer learned that the proposed “settlement” purported to dispose of claims that seek to recover

losses to Wells Fargo approaching or exceeding $1 billion (see Federal CPI Complaint, | 239),1

with a “settlement” in exchange for: (a) no monetary recovery for Wells Fargo-, (b) so called

“therapeutic” relief and “corporate reforms” (the institution of which would presumably be paid

for by Wells Fargo) that is largely illusory and/or essentially duplicative of the Board of

Directors’ self-evident obligations under applicable law or prior regulatory sanctions directed to

the Company and the Board; and (c) a payment of attorneys’ fees of $2.5 million to plaintiffs’

counsel for their efforts in achieving this dubious result.

16. Feuer’s counsel was advised that, if Feuer did not join in the “settlement,” the

settling parties would, if their proposed settlement is approved, take the position that

Plaintiff/Intenenor's claims in the Federal CPI Action would be extinguished under principles of

res judicata (a position that Feuer and his counsel vigorously dispute and will oppose). Feuer and

1 In addition to the substantial harm and financial loss the CPI scandal has caused Wells Fargo, the losses continue to escalate, as Wells Fargo recently announced that it has agreed to pay States Attorneys General an additional $575 million relating to the CPI and other scandals. See https://portal.ct.gOv/-/media/ AG/Prcss Releases/2018/20181228_Wel lsFargo_MultistateSett lement .pdf?la==en.

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his counsel declined to join in the settlement, which they view as fundamentally inadequate

because of the absence of a meaningful cash recovery from the officer and director defendants

and their insurance carrier, and the two insurance companies who were part of the CPI scheme,

and because the so called therapeutic relief as described is largely illusory.

17. Plaintiff/Intervenor has a strong and compelling interest in the proposed

settlement pending for preliminary approval before this Court. While Plaintiff/Intervenor will

articulate each and every reason he objects to the proposed settlement at such time and in such

manner as may be set by the Court for objections, Plaintiff/Intervenor believes that the settlement

is borne of the same conflicts of interest that led to Wells Fargo and the Wells Fargo Board

shutting down Plaintiff/Intervenor’s demands for an independent investigation of the CPI

Scandal. Plaintiff/Intervenor believes that an independent investigation was rejected in order to

suppress the facts and circumstances surrounding the CPI Scandal so that those defendants

responsible for the Scandal would not be held to account, all contrary to Wells Fargo’s interests.

16. Plaintiff/Intervenor believes that because the conflicts surrounding S&S’s dual

and conflicting roles as counsel for the director defendants in this action and purportedly

independent counsel acting for the benefit of Wells Fargo and its shareholders in connection with

the so-called “investigation” of Plaintiff/Intervenor’s demands were identified in the Federal

Action, defendants sought to avoid trying to justify these conflicts in the Federal Action and

instead chose to settle valuable claims belonging to Wells Fargo with plaintiffs in this State

Court Action, who were in a weakened bargaining position since their claims have already been

dismissed twice and are teetering on the brink of final dismissal with prejudice. The result is

what one would expect under the circumstances: a non-cash settlement, based exclusively on so-

called “corporate therapeutics” to be provided by Wells Fargo that are of questionable value in

view of the layers of meaningful therapeutic relief previously ordered by the Federal Reserve, as

outlined in the Federal Complaint, and no accountability for the officer and director defendants

or the insurer defendants who aided and abetted their breaches of fiduciary duty.

17. At such time as the Court may direct for objections, Plaintiff/Intervenor will

further elaborate as to why the proposed “corporate therapeutics” are little more than “window

-5-[PROPOSED] COMPLAINT IN INTERVENTION

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dressing” designed to: (a) whitewash defendants’ misconduct relative to the CPI Scandal; (b)

allow conflicted directors to walk away without being held accountable for their significant

breaches of duty that cost Wells Fargo nearly $1 billion in regulatory sanctions and incalculable

reputation damage; and (c) justify a payoff to plaintiffs’ counsel herein in the form of a $ 2.5

million attorneys fee for their role in accommodating and facilitating this charade. At such time,

Plaintiff Intervenor will also address infirmities in the proposed notice of the settlement to be

provided to Wells Fargo shareholders.

18. Wells Fargo has already advised the Court in the Federal CPI Action that if the

proposed settlement is approved by this Court, it will seek to use such approval to try (over

Feuer’s objection) to have the Federal Action dismissed on grounds of res judicata. See Wells

Fargo’s Joinder in Request to Continue or Adjourn Hearing (Feuer Dkt. 73 at 2) (“[t]he State

Consolidated Plaintiffs, Wells Fargo and defendants (but not Mr. Feuer) have reached an

agreement in principle to settle the State Court Action [i.e. this action] and are in the process of

finalizing settlement papers for submission and court approval. This settlement will extinguish

the overlapping claims in the Feuer Action, which comprise all remaining operative claims

following Mr. Feuer’s prior stipulation limiting the scope of this action.”); see also Feuer Dkt.

105.

19. Plaintiff/Intervenor Feuer will vigorously dispute and contest any effort by

defendants: (a) to squander and compromise valuable claims belonging to Wells Fargo for

basically no value, all in exchange for the payment of a $2.5 million payment to the State Court

Action plaintiffs’ counsel who, but for the proposed settlement, were facing the third dismissal of

their case, this time with prejudice, and who will have suppressed and white-washed a bona fide,

independent investigation of the facts that would have assigned real accountability for the CPI

Scandal. By virtue of their actions in orchestrating the illusory proposed settlement,

Plaintiff/Intervenor will face significant obstacles, risk and potential prejudice in seeking to

preserve and vindicate Wells Fargo’s valuable claims that this illusory proposed settlement is

designed to compromise and squander.

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20. Plaintiff/lntervenor is entitled to intervene as of right under Code of Civil

Procedure section 387(d)(1)(B) because, as a shareholder of Wells Fargo & Co. and the named

plaintiff in a related shareholder derivative action, he has standing to object to the proposed

settlement and seek appropriate relief with respect hereto and has a real, immediate and concrete

interest in the claims that are the subject of this consolidated litigation. Wells Fargo has taken

the position that if the proposed settlement is approved, it will be res judicata as to the claims

asserted in the Federal CPI Action, resulting in the suppression of facts, loss of accountability,

and the extinguishment of valuable claims owned by Wells Fargo’s shareholders for negligible

consideration.

21. Alternatively, Plaintiff/lntervenor is entitled to permissive intervention under

Code of Civil Procedure section 387(d)(2), which is liberally construed in favor of intervention,

because he has a direct and immediate interest in the proposed settlement of this action and he

intends to object to the proposed settlement and approval thereof, which would extinguish claims

he is litigating in federal court. Plaintiff thus has an interest antagonistic to all parties.

22. The current parties will not be prejudiced in any way by Plaintiff/Intervenor’s

participation. Rather, his participation will assist the Court in discharging its duty “to review the

settlement as a whole ... to ensure that it was fairly and honestly negotiated, is not collusive and

adequately protects the interest of the corporation and of the shareholders.” Robbins v.

Alibrandi, 127 Cal. App. 4th 438, 444 (2005).

23. The Federal Court presiding over the Federal Action has held that the proper

forum for Plaintiff/lntervenor to express his objections to the proposed settlement is in this

Court, where the settlement is pending, and not in federal court, where his case is pending. See

Order Granting Motion to Continue (Feuer Dkt. 76 at 2) (“this Court is not the appropriate place

to express objections regarding a settlement pending elsewhere. The appropriate place is the

court where the settlement is pending.”).

24. Plaintiff/Intervenor’s ability to protect his interests through appellate review of

this Court’s decision with respect to the fairness and adequacy of the proposed settlement

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(should it ultimately receive final approval) will be foreclosed if his request to intervene is

denied. See Hernandez v. Restoration Hardware, Inc., 4 Cal. 5th 260; 228 (2018).

Dated: May 1,2019

Respectfully submitted,

WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP

By: /s/ Brittany N. DeJong_______BRITTANY N. DEJONG

Betsy C. Manifold (SBN 182450) [email protected] N. DeJong (SBN 258766) [email protected] Towers750 B Street, Suite 1820San Diego, CA 92101 Telephone: (619) 239-4599Fax: (619) 234-4599

GREENFIELD & GOODMAN, LLC Richard D. GreenfieldMarguerite R. GoodmanAnn M. Caldwell Ilene F. Brookler (SBN 269422) [email protected] Hudson Street, 8th FloorNew York, NY 10013 Telephone: (917) 495-4446


WELLS.FARGO:25590

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