Gottlieb v. Wiles

11 F.3d 1004, 27 Fed. R. Serv. 3d 904, 1993 U.S. App. LEXIS 32703
CourtCourt of Appeals for the Tenth Circuit
DecidedDecember 16, 1993
DocketNos. 92-1392, 93-1126 and 93-1205
StatusPublished
Cited by96 cases

This text of 11 F.3d 1004 (Gottlieb v. Wiles) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gottlieb v. Wiles, 11 F.3d 1004, 27 Fed. R. Serv. 3d 904, 1993 U.S. App. LEXIS 32703 (10th Cir. 1993).

Opinion

McKAY, Chief Judge.

In this case, we must decide whether, and under what circumstances, an unnamed plaintiff in a class action suit under Federal Rule of Civil Procedure 23 has standing to appeal the approval of a settlement when the named plaintiffs do not wish to pursue an appeal. This is a question of first impression in this circuit. We hold that standing is dependent upon a grant of intervention, a result which we believe to be consistent with the rule in all of the circuits that have directly addressed the issue, and which we believe best serves the policy underlying Rule 23 class actions.

I. FACTS

A brief statement of the facts underlying this matter is sufficient for our analysis. Timothy and Dorothy Welch, unnamed plaintiffs in a Rule 23(b)(3) class action suit, appealed the district court’s approval of a settlement of the suit. Feivel Gottlieb, one of the named plaintiffs in the class action and Q.T. Wiles, one of the defendants (“Appel-lees” herein), moved to dismiss the Welches’ appeal on the grounds that they lacked standing because they had not intervened in the district court proceedings. The Welches then filed a “Renewed Motion to Intervene” as plaintiffs in the district court, renewing a motion they had made earlier, upon which the district court had not ruled. The district court denied this motion on the ground that the Welches’ appeal of the approval of the settlement deprived it of jurisdiction. In an order filed on March 29, 1993, this court reserved judgment on the jurisdictional issues raised in the motion to dismiss. Appellants then appealed the district court’s denial of their Renewed Motion to Intervene. This court sua sponte consolidated the two appeals and remanded the district court’s denial of intervention for clarification as to whether it was a determination based on lack of jurisdiction or whether it was on the merits. The district court on remand issued an [1007]*1007order deciding on the merits to deny Appellant’s motion to intervene because, in that court’s view, it was not necessary for unnamed class members to intervene in order to appeal the approval of the settlement. Appellants then appealed this latter denial of their motion to intervene.

The class action suit charged that the Mini-Scribe Corporation, several of its officers and directors, its accountants, and others had engaged in securities fraud. The district court certified the class in October 1990. Notice of the pendency of the action was disseminated pursuant to Rule 23(c), according to procedures approved by the district court, to all persons who had purchased Mini-Scribe stock during the class period. Among those who received this notice were the Welches, who had owned 6,000 shares of Mini-Scribe stock for a period of eight days.1 After lengthy negotiations, a settlement was proposed and notice of the settlement was sent to the class members pursuant to a court-approved plan, as prescribed by Rule 23(e).

On September 10, 1992, the Welches filed three objections to the settlement. They argued that: (1) the settlement notice violated the due process rights of the class members by failing to inform them of the maximum per-share distribution; (2) the settlement proponents had failed to establish that the proposal was fair, reasonable and adequate, because the court had failed to consider “the ability of the defendants to withstand a greater judgment”; and (3) the requested attorney fees were excessive.2 The Welches appeared at the Rule 23(e) settlement approval hearing and presented their objections to the court. (See Appellant’s App. at 484, 518-528.) On November 27, 1992, the district court issued its final judgment and order, addressing the Welches’ objections and approving the proposed settlement. The Welches then appealed.

II. STANDING

In their Motion to Dismiss, Appellees argue that unnamed members of a class do not have standing to appeal approval of a settlement unless the district court has granted them intervenor status pursuant to Rule 24. The Welches respond that unnamed class members are parties for purposes of appeal, regardless of whether they have been granted intervenor status. Alternatively, the Welches argue that all that is required is that an unnamed class member attempt to intervene, which they did.3

Rule 23 was intended to promote the efficient resolution of claims in cases involving multiple parties with similar claims, to eliminate repetitious litigation, and to avoid inconsistent judgments. To that end, the Rule elaborates comprehensive procedures to be followed in class actions. These procedures represent a careful balancing of the need for efficiency with the need to ensure adequate protection for the individual members of the class, factors not present in non-class action contexts. Cases addressing standing in other contexts are therefore inapplicable. See, e.g., In re Grand Jury Proceedings, Vargas, 723 F.2d 1461 (10th Cir.1983), cert. denied, 469 U.S. 819, 105 S.Ct. 90, 83 L.Ed.2d 37 (1984) (holding that client had standing to appeal court’s order to client’s [1008]*1008attorney to appear before grand jury, since client fully participated in the hearing); Dietrich Corp. v. King Resources Co., 596 F.2d 422 (10th Cir.1979) (permitting attorney who was neither a party nor an attorney of record to appeal court’s order determining his compensation as a consultant, since the attorney’s property interests were at stake). We address the standing issue in light of this balancing of interests.

The Eleventh Circuit, in Guthrie v. Evans, 815 F.2d 626 (11th Cir.1987), set forth three reasons for requiring an unnamed class member to intervene formally in the action in order to gain standing to appeal approval of the settlement. First, unnamed class members cannot represent the class absent the procedures set forth in Rule 23 for the certification of class representatives. Guthrie, 815 F.2d at 628. Under Rule 23(a), the district court must make a preliminary, affirmative determination that the proposed class representatives’ claims are typical of those of the class as a whole, and that the representatives will fairly and adequately represent the interests of the class members. While the court has made that determination with regard to the named plaintiffs in this action, it has made no such determination with regard to the Welches. Nor have the Welches made any serious attempt to attack the adequacy of the representation afforded by the named plaintiffs in this suit. Rather, the entire focus of the Welches’ attack is on the district court’s determination that the settlement was fair.4 Permitting unnamed class members to pursue an appeal contrary to the wishes of the named class representatives would effectively substitute the unnamed members for the certified class representatives. Such a rule would undermine class action suits by allowing any and all unnamed class members to relitigate the suit without any indication that the named plaintiffs were improperly certified.

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Bluebook (online)
11 F.3d 1004, 27 Fed. R. Serv. 3d 904, 1993 U.S. App. LEXIS 32703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gottlieb-v-wiles-ca10-1993.