                                                                           FILED
                           NOT FOR PUBLICATION                              APR 30 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CHAD THRONE, individually, and on                No. 09-55114
behalf of other members of the general
public similarly situated,                       D.C. No. 2:07-cv-00113-ABC-RZ

             Plaintiff - Movant,
                                                 MEMORANDUM *
  and

NICHOLAS TCHIKOVANI,

             Plaintiff - Appellant,

  v.

CITICORP INVESTMENT SERVICES
INC.,

             Defendant - Appellee.



CHAD THRONE, individually, and on                No. 09-55253
behalf of other members of the general
public similarly situated,                       D.C. No. 2:07-cv-00113-ABC-RZ

             Plaintiff - Movant,

  and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NICHOLAS TCHIKOVANI,

               Plaintiff - Appellant,

  v.

CITICORP INVESTMENT SERVICES
INC.,

               Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                  Audrey B. Collins, Chief District Judge, Presiding

                         Argued and Submitted April 6, 2010
                                Pasadena, California

Before: PREGERSON and THOMPSON, Circuit Judges, and GRAHAM, Senior
District Judge.**

       Plaintiff-Appellant, Nicholas Tchikovani (“Tchikovani”) appeals the district

court’s denial of his motion for attorneys’ fees.

       Tchikovani and Chad Throne (“Throne”) were both named plaintiffs in

separate class actions against Citicorp. At Throne’s request, the district court

consolidated the Tchikovani and Throne actions. Throne’s attorneys became lead

counsel, and Tchikovani’s attorneys became non-lead counsel in that consolidated

action.


          **
             The Honorable James L. Graham, Senior United States District Judge
for the Southern District of Ohio, sitting by designation.
       Before the Tchikovani and Throne actions were consolidated, Throne’s

attorneys reached a stipulated settlement agreement with Citicorp. Tchikovani’s

attorneys were not involved in the negotiations that resulted in that stipulated

settlement agreement. After Throne and Citicorp agreed to a pre-final draft of the

settlement, Throne sent a copy of the draft to Tchikovani’s attorneys. Tchikovani’s

attorneys suggested some minor changes to the settlement. Tchikovani’s attorneys

were not otherwise involved in negotiating the settlement, and the settlement fund

amount did not change after Tchikovani’s attorneys reviewed the settlement

agreement.

       The district court found that Tchikovani was not entitled to recover

attorneys’ fees because Tchikovani’s attorneys were not actively involved in

reaching the settlement and their work did not substantially benefit the class. See

Fischel v. Equitable Life Assurance Soc’y of the U.S., 307 F.3d 997, 1006 (9th Cir.

2002); In re FPI/Agretech Sec. Litig., 105 F.3d 469, 475 (9th Cir. 1997); Chem.

Bank v. Jaffe & Schlesinger, P.A., 19 F.3d 1306, 1308 (9th Cir. 1994). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm for the reasons stated by the

district court.

       We note there is also an additional independent basis for affirming the

district court. The settlement agreement in this case contained an express waiver

of the right to appeal: “With the exception of a right to appeal the reduction of any
award of attorneys’ fees and costs, as provided herein, the Named Plaintiffs and

[Citigroup] hereby waive their right to appeal or seek other judicial review of any

order that is materially consistent with the terms of this Agreement.” See Guseinov

v. Burns, 51 Cal. Rptr. 3d 903, 909-10 (Cal. Ct. App. 2006); Pratt v. Gursey,

Schneider & Co., 95 Cal. Rptr. 2d 695, 698-99 (Cal. Ct. App. 2000).1 Thus, by

agreeing to the settlement, Tchikovani waived his right to appeal the district

court’s denial of his motion for attorneys’ fees unless the district court reduced the

total award of attorneys’ fees below the amount provided for in the settlement. Cf.

Guseinov, 51 Cal. Rptr. at 910 (explaining that language waiving right to appeal an

award and “any order” pertaining to the award is an express waiver of the right to

appeal judicial action enforcing the award).

      The settlement provided that lead class counsel would move for up to

$1,437,500 in attorneys’ fees. Throne’s attorneys, lead class counsel, did move for

$1,437,500 in attorneys’ fees. The district court granted that motion, and the

district court did not reduce that award. Thus, there had been no reduction to the

award of attorneys’ fees as provided for in the settlement agreement.


      1
         Interpretation of the settlement agreement is governed by California law.
Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989) (“The construction and
enforcement of settlement agreements are governed by principles of local law
which apply to interpretation of contracts generally.”); see, e.g., Navarro v.
Mukasey, 518 F.3d 729, 733 (9th Cir. 2008) (applying California contract law to
interpret a class action settlement agreement negotiated in California)
Consequently, Tchikovani waived his right to pursue this appeal. For this reason

too, we affirm the district court.

      Finally, Throne requests sanctions against Tchikovani for filing a frivolous

appeal. We may award damages and costs for an appeal “when the results are

obvious or the arguments are wholly without merit.” NLRB v. Unbelievable, Inc.,

71 F.3d 1434, 1441 (9th Cir. 1995); see also Fed. R. App. P. 38. Because

Tchikovani’s contentions on appeal are wholly without merit, we award Throne

full attorneys’ fees and costs for this appeal and refer the calculation of the amount

of those fees and costs to the Appellate Commissioner, who is authorized to enter

judgment thereon. See 9th Cir. R. 39-1.9.

      Judgment of the district court AFFIRMED. Throne’s request for

attorneys’ fees and costs associated with this appeal GRANTED.
