NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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No. 19-1538 ____________

JAIME GONZALEZ; PATRICIA WRIGHT; KEVIN WEST; GERALD BOEHM; EDWARD MAAG; DIANE MAAG, on behalf of themselves and all others similarly situated, Appellants v.

OWENS CORNING; OWENS CORNING SALES, LLC

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On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-13-cv-01378) District Judge: Honorable Joy Flowers Conti ____________

Submitted under Third Circuit LAR 34.1(a) April 21, 2020

Before: HARDIMAN, RENDELL, and FISHER, Circuit Judges.

(Filed: May 1, 2020)

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OPINION * ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

This appeal is the final skirmish in a long legal battle over allegedly defective

Owens Corning shingles purchased by Plaintiffs. The District Court initially granted

Owens Corning summary judgment, but we reversed, and the parties later settled.

Plaintiffs then requested attorneys’ fees, arguing their appeal of the Court’s summary

judgment benefitted the putative class. The Court denied Plaintiffs’ motion, and they

appealed again. We will affirm.

I

In 2006, the United States Bankruptcy Court for the District of Delaware

confirmed Owens Corning’s Chapter 11 plan. See Gonzalez v. Corning,

(3d Cir. 2018). Under the confirmation order and

, all “claims”

against Owens Corning as of that date were discharged.

At the time, our decision in Avellino & Bienes v. M. Frenville Co. (In re M.

Frenville Co.),

(3d Cir. 1984) (“Frenville”) supplied the legal standard for

determining whether a plaintiff held a “claim” in bankruptcy. Under Frenville, courts

looked to the underlying state limitations law to determine when a claim arose. See

Gonzalez,

(citation omitted). “Thus, for example, a claim brought under

2 the law of a state in which the discovery rule applies arises when the claimant discovers

the injury.”

In 2009 and 2010, Plaintiffs Patricia Wright and Kevin West sued in the United

States District Court for the Western District of Pennsylvania, claiming Owens Corning

manufactured defective shingles. See

; App. 177. They purported to represent a

class of individuals who owned structures on which the shingles were installed. Gonzalez,

(citing Gonzalez v. Owens Corning,

(W.D. Pa.

2016)). Both Wright and West asserted state-law causes of action, and Wright—a

Pennsylvania resident—asserted a cause of action under the Pennsylvania Unfair Trade

Practices and Consumer Protection Law (PUTPCPL), 73 Pa. Stat. Ann. § 201-1 et seq.;

App. 99–110. Although Wright and West both installed their shingles before Owens

Corning’s reorganization plan was confirmed in 2006, they did not discover the shingles’

alleged defects until 2009. See Wright v. Owens Corning,

(3d Cir.

2012). Because they both resided in states in which the discovery rule applies, under

Frenville they did not hold “claims” in 2006. See

at 104 & n. 5.

In 2010, we overturned Frenville. See JELD-WEN, Inc. v. Van Brunt (In re

Grossman’s Inc.),

(3d Cir. 2010) (en banc) (“Grossman’s”). Under

Grossman’s, a claim arises when the claimant is exposed to the debtor’s product or

conduct, no matter when the claimant discovers the injury. See id. at 125. Applying

Grossman’s, the District Court granted Owens Corning summary judgment. It reasoned

3 that Wright and West had claims in 2006 and their claims had been discharged when the

District Court confirmed Owens Corning’s reorganization plan. See Wright v. Owens

Corning,

(W.D. Pa. 2011).

Wright and West appealed, and we reversed. Citing due process concerns, we held

the Frenville rule applies to cases in which courts confirmed reorganization plans before

we decided Grossman’s. See Wright,

. Thus, we held Wright and West’s

claims were not discharged. See

On remand, the District Court consolidated Wright and West’s case with three

others, and Plaintiffs moved to certify a class. See Gonzalez,

. The Court

denied the motion, see Gonzalez,

, and we affirmed, see Gonzalez,

. The parties then settled. See Gonzalez v. Owens Corning Sales, LLC,

(W.D. Pa. 2019).

Following the settlement, Plaintiffs moved for attorneys’ fees. See

. They

argued that, under any of three theories—(1) the common fund doctrine; (2) the common

benefit doctrine; and (3) the catalyst theory—they deserve “compensat[ion] for lifting the

federal bankruptcy bar and voiding the bankruptcy injunction thereby creating a common

benefit for millions of shingle owners.”

The District Court denied the motion, and this

appeal followed.

.

4 II 1

We review the standards and procedures the District Court applied in determining

attorneys’ fees de novo and the facts it found for clear error. See Planned Parenthood of

Cent. N.J. v. Att’y Gen. of N.J.,

(3d Cir. 2002). We also pay a “great

deal of deference to a district court’s decision to set fees.” Gunter v. Ridgewood Energy

Corp.,

(3d Cir. 2000) (citations omitted).

The District Court did not err in holding the common fund and common benefit

doctrines do not apply. Both doctrines give courts discretion to award fees to attorneys

whose work substantially benefits an ascertainable class of beneficiaries. See Polonski v.

Trump Taj Mahal Assocs.,

(3d Cir. 1998); In re Diet Drugs,

, 546 n. 44 (3d Cir. 2009) (explaining the common benefit doctrine derives from the

common fund doctrine). Plaintiffs suggest that our decision in Wright “reviv[ed] millions

of warranties” and “prohibited [Owens Corning] from asserting the bankruptcy bar ab

initio to avoid warranty claims.” Opening Br. 1; Reply Br. 4. But this description of

Wright is unfounded. In Wright, we merely held that the Frenville rule applies to cases in

which courts confirmed reorganization plans before Grossman’s. See Wright,

. So Wright benefitted only plaintiffs whose claims would have been discharged

under Grossman’s but not Frenville. That class of plaintiffs is not ascertainable, because

1 The District Court had jurisdiction under

. We have jurisdiction under

.

5 the Frenville analysis is so fact intensive. See Polonski,

. Even if we could

ascertain these plaintiffs, however, Wright benefitted them only by removing one

obstacle to overcoming summary judgment—not by helping them prove their shingles

were defective. Such a “minimal” benefit cannot support an award of fees under either

the common fund or common benefit doctrine. Gonzalez, 367 F. Supp. 3d at 385–86; see

also Sprague v. Ticonic Nat. Bank,

(1939) (holding common fund

doctrine applies “only in exceptional cases and for dominating reasons of justice”);

Polonski, 137 F.3d at 145–147 (citing Mills v. Electric Auto-Lite Co.,

(1970)) (explaining common benefit doctrine requires plaintiff to render a “substantial

service” to an ascertainable class of beneficiaries).

Nor did the District Court err in holding the catalyst theory inapplicable. That

theory gives courts discretion to award attorneys’ fees if a plaintiff’s litigation activity

“pressured a defendant to settle or render to a plaintiff the requested relief.” Templin v.

Indep. Blue Cross,

(3d Cir. 2015). But see Buckhannon Bd. and Care

Home, Inc. v. W. Va. Dep’t of Health & Human Res.,

(2001) (holding

catalyst theory unavailable if statute has “prevailing party” requirement). In Templin, we

held a plaintiff asserting claims under the Employee Retirement Income Security Act

(ERISA) could pursue a catalyst theory, in part because ERISA's fee-shifting provision

lacks a “prevailing party” requirement. See 785 F.3d at 864–66 (citing Hardt v. Reliance

Standard Life Ins.,

(2010)). Plaintiffs argue that because the PUTPCPL’s

6 fee-shifting provision also lacks a prevailing party requirement, they too should be able to

pursue a catalyst theory. Even if the catalyst theory applies to the PUTPCPL, it cannot

support an award of fees here. The catalyst theory requires “some degree of success on

the merits.” Templin,

(citing Hardt, 560 U.S. at 254). But as the District

Court concluded, Plaintiffs’ victory in Wright was purely procedural; it shed no light on

the merits of any putative plaintiff’s claim. See Gonzalez,

.

* * *

For the reasons stated, we will affirm the District Court’s order denying the

motion for attorneys’ fees.

7