In Re: Deepwater Horizon

Case: 15-30597 Document: 00513454596 Page: 1 Date Filed: 04/06/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 15-30597
Fifth Circuit

FILED
April 6, 2016

IN RE: DEEPWATER HORIZON Lyle W. Cayce
Clerk
------------------------------------------

SEACOR HOLDINGS, INCORPORATED; SEACOR OFFSHORE, L.L.C.;
SEACOR MARINE, L.L.C., As Beneficial Owner, Registered Owner, And
Managing Owner of the M/V Seacor Vanguard Petitioning for Exoneration
From or Limitation of Liability,

Petitioners - Appellees

v.

DUWAYNE MASON,

Claimant - Appellant

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, p.l.c.,

Appellees

************************************************************************

No. 15-30598

IN RE: DEEPWATER HORIZON

------------------------------------------

DUWAYNE MASON,

Plaintiff - Appellant
 Case: 15-30597 Document: 00513454596 Page: 2 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598

v.

SEACOR MARINE, L.L.C.,

Defendant - Appellee

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, p.l.c.,

Appellees

Appeals from the United States District Court
for the Eastern District of Louisiana

Before KING, SOUTHWICK, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge.
Duwayne Mason appeals the district court’s grant of summary judgment
in favor of Seacor Holdings, Inc., Seacor Offshore, L.L.C., and Seacor Marine,
L.L.C. (collectively, “Seacor”), as well as the denial of Mason’s motion to be
recognized as a plaintiff who opted out of the class action settlement at issue
in this case. For the reasons that follow, we AFFIRM.
I.
This is one of the many cases to arise from the Deepwater Horizon oil
spill, the facts of which are well known and need not be recited at great length.
Suffice it to say, Seacor owned and operated the M/V SEACOR VANGUARD,
a vessel that assisted in putting out the fire after the explosion in the Gulf of
Mexico and that subsequently took part in the cleanup efforts.

2
 Case: 15-30597 Document: 00513454596 Page: 3 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598
In response to a class action filed against it relating to damages
stemming from the Deepwater Horizon incident, Seacor filed a limitation of
liability action under 46 U.S.C. § 30505 (“Limitation Action”). Duwayne
Mason, an employee of Seacor and a member of the crew aboard the M/V
SEACOR VANGUARD, filed a claim in the Limitation Action, alleging that
while assisting in the firefighting efforts aboard the M/V SEACOR
VANGUARD, he was “subjected to intense, prolonged exposure to chemicals,
smoke, heat[,] and other noxious by-products of the rig fire resulting in severe
and permanent damage to . . . claimant’s lungs and other parts of his body.” In
a separate lawsuit against Seacor, Mason further alleged that “[w]hile engaged
in collecting the oil and dispersant, plaintiff was exposed to crude oil, chemical
components of the crude oil, chemical dispersant[,] and other noxious by-
products of the rig fire and oil spill, resulting in severe and permanent damage
to his lungs and other parts of his body.” These two claims were consolidated
with the Deepwater Horizon multidistrict litigation (“MDL”).
“In order to manage this complex litigation, the district court issued
Pretrial Order No. 11 establishing several ‘pleading bundles’ into each of which
claims of similar nature would be placed for the purpose of filing a master
complaint, answers, and any Rule 12 motions.” Ctr. for Biological Diversity,
Inc. v. BP Am. Prod. Co., 704 F.3d 413, 419 (5th Cir. 2013). Relevant to this
appeal are bundles: B3, which included claims related to cleanup efforts and
personal injury or medical monitoring claims for exposure or other injuries;
and B4, which included claims against owners and operators of response
vessels. After the district court ruled on motions to dismiss related to pleading
bundle B3, BP American Production Co., BP Exploration & Production Inc.,
and BP P.L.C. (collectively, “BP”) negotiated the Medical Benefits Settlement
Agreement (the “Agreement”), which addresses the claims in the B3 pleading
bundle. The Agreement was filed with the district court on April 18, 2012, and
3
 Case: 15-30597 Document: 00513454596 Page: 4 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598
subsequently amended on May 1, 2012. This Agreement applied to the
“Medical Benefits Settlement Class,” which was defined as natural persons
who worked as clean-up workers between April 20, 2010, and April 16, 2012.
The agreement further defined “clean-up workers” as natural persons who
performed response activities, which in turn was defined as “the clean-up,
remediation efforts, and all other responsive actions (including the use and
handling of dispersants) relating to the release of oil, other hydrocarbons, and
other substances from the MC252 WELL and/or the Deepwater Horizon and its
appurtenances . . . .”
Under the Agreement, all released claims of the class members against
all released parties would be dismissed once the Agreement became effective,
including those for personal and bodily injuries related to the Deepwater
Horizon incident. The Agreement specifically identifies the released parties as
including, among others, Seacor. The district court preliminarily approved the
Agreement and set forth procedures for individuals to opt out from the Medical
Benefits Settlement Class. 1 The initial opt-out deadline was ultimately
extended to November 1, 2012. The court granted final approval of the
Agreement on January 11, 2013, and the effective date of the Agreement was
February 12, 2014.
After the Agreement had been filed with the court, but several months
before the opt-out period had expired, Mason moved to sever his claims from

1 The court ordered that “any Medical Benefits Settlement Class Member wishing to
exclude himself or herself from the Medical Benefits Settlement Class must submit a written
request stating ‘I wish to exclude myself from the Medical Benefits Settlement Class’ (or
substantially similar clear and unambiguous language), and also containing that Medical
Benefits Settlement Class Member’s printed name, address, phone number, and date of birth,
and enclosing a copy of his or her driver’s license or other government-issued identification.
The written request to Opt Out must be signed by the Medical Benefits Settlement Class
Member seeking to exclude himself or herself from the Medical Benefits Settlement
Class . . . .” The Agreement also describes this opt-out procedure.
4
 Case: 15-30597 Document: 00513454596 Page: 5 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598
the MDL. This motion provided that “Mason hereby certifies that he has filed
no claim in connection with the BP oil spill nor have any claims been submitted
in connection with the [Agreement].” Furthermore, it stated that
“[u]ndersigned counsel has thoroughly investigated the nature of the
[Agreement] and is satisfied that an adequate remedy is not available for his
client within the ambit of that settlement. Undersigned counsel’s investigation
has been confirmed through detailed discussions with members of the
Plaintiffs’ Steering Committee handling the MDL.”
In its opposition to the motion to sever—filed over a month before the
opt-out period expired—Seacor noted that Mason’s claims appeared to fall
within the ambit of the B3 pleading bundle and the Agreement. Seacor also
opposed the motion to sever because it claimed it would “necessarily have to
implead others who may have caused” the oil spill at the heart of the class
action if “compelled to defend itself in a proceeding that raises the very same
issues as those common to the B3 and B4 pleading bundles.” On March 5,
2013—after the opt-out deadline—the court denied the motion to sever. 2 Three
weeks later, Mason contacted the claims administrator of the Agreement,
maintaining that he was not a member of the Medical Benefits Settlement
Class, and stating that if he were a member, he wished to be excluded. The

2 After the opt-out deadline, in response to the denial of the motion to sever, Mason’s
counsel filed an affidavit seeking to clarify that he did not view Mason’s claims as falling
within the Agreement or as relating to the oil spill because they were filed against Seacor,
not BP, and because Mason did not personally collect dispersant or participate in recovery
and cleanup efforts, except as an engineer in the engine room of the M/V SEACOR
VANGUARD while other crew members helped with those efforts. As discussed herein,
Mason does not appeal his status as a member of the Medical Benefits Settlement Class.
Therefore, we need not and do not address whether the district court properly concluded that
Mason is a member of the Medical Benefits Settlement Class whose claims constitute
“Released Claims” under the Agreement.
5
 Case: 15-30597 Document: 00513454596 Page: 6 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598
court denied Mason’s subsequent motion to reconsider or in the alternative to
extend the opt-out deadline. 3
After the Agreement became effective, Seacor moved for summary
judgment on Mason’s claims against it, citing the release provision of the
Agreement. The district court granted the motion and entered final judgment
in favor of Seacor, holding that Mason “is a member of the Medical Class”
covered by the Agreement and that his claims against Seacor had been
released by the Agreement. Additionally, in accordance with its denial of
Mason’s motion to sever, the district court concluded that Mason’s motion to
sever was not an effective opt out of the Agreement and that Mason’s counsel
received sufficient actual notice of that Agreement, and the court declined to
extend the opt-out deadline for Mason. Mason timely appealed.
II.
We have jurisdiction over this appeal from an order of final judgment
under 28 U.S.C. § 1291. As a preliminary matter, Mason does not appeal his
status as a member of the Medical Benefits Settlement Class. Moreover, there
is no dispute that Mason did not follow the opt-out procedure set forth by the
district court. Rather, Mason’s appeal is best understood as raising two issues:
1. Whether the district court abused its discretion in
failing to determine that Mason had opted out through
informal means; and

3 Mason moved for the district court to extend the deadline to opt out, and his
appellate briefs include vague language concerning the district court’s refusal to extend the
opt-out deadline. Yet, Mason does not now appear to challenge the district court’s refusal to
extend the opt-out deadline. Even if he meant to pursue this issue on appeal, Mason’s
briefing is vague and entirely unsupported by any citations to authority. We thus do not
consider whether the district court should have extended the time for Mason to opt out, as
we find any argument on this issue abandoned through inadequate briefing. See, e.g., Young
v. Repine (In re Repine), 536 F.3d 512, 518 n.5 (5th Cir. 2008); see also FED. R. APP. P. 28(a)(8).
6
 Case: 15-30597 Document: 00513454596 Page: 7 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598
2. Whether the district court erroneously determined
that Mason had received sufficient notice of the
Medical Benefits Settlement Agreement.
We address each issue in turn.
A. Informal Opt Out
As a threshold issue, Mason contends it is unclear what standard of
review applies to whether a “non-formal” attempt to opt out should be
recognized in these circumstances. To the extent we have not spoken on the
proper standard of review for a district court’s determination of whether a
member of a class action proposed for settlement under Rule 23(b)(3) &
(c)(2)(B) has opted out of that class, we hold that review is for an abuse of
discretion. See In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1096
(5th Cir. 1977) (“In the management of class actions, Federal Rule Civil
Procedure 23 necessarily vests the district courts with a broad discretion to
enable efficacious administration of the course of the proceedings . . . .”); see
also Sanders v. John Nuveen & Co., 524 F.2d 1064, 1075 (7th Cir. 1975),
vacated on other grounds, 425 U.S. 929 (1976); cf. Silvercreek Mgmt., Inc. v.
Banc of Am. Sec., LLC, 534 F.3d 469, 473 (5th Cir. 2008) (reviewing a district
court’s decision whether to extend the opt-out period for an abuse of discretion).
We have consistently applied the abuse of discretion standard in
analogous contexts. Cf. Ayers v. Thompson, 358 F.3d 356, 368 (5th Cir. 2004)
(“[A] district court’s denial of a motion to opt out of a class certified under Rule
23(b)(2) is reviewed for abuse of discretion.”); Nichols v. Mobile Bd. of Realtors,
Inc., 675 F.2d 671, 679 (5th Cir. Unit B 1982) (“A district court’s decision on
class certification is reviewable only for abuse of discretion.”). Other federal
courts of appeals have also applied the abuse of discretion standard in similar
circumstances. See, e.g., In re Managed Care Litig., 605 F.3d 1146, 1150 (11th
Cir. 2010) (reviewing “denials of requests for extensions of time to opt out and
denials of assertions of judicial estoppel under the abuse-of-discretion
7
 Case: 15-30597 Document: 00513454596 Page: 8 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598
standard”); In re Painewebber Ltd. Partnerships Litig., 147 F.3d 132, 135 (2d
Cir. 1998) (similar); cf. In re Vitamins Antitrust Class Actions, 327 F.3d 1207,
1208–10 (D.C. Cir. 2003) (reviewing for an abuse of discretion the district
court’s decision to allow an untimely opt out); Silber v. Mabon, 18 F.3d 1449,
1453 (9th Cir. 1994) (reviewing the denial of a motion to opt out for an abuse
of discretion).
Having established the proper standard of review, we turn to Mason’s
arguments on the merits. In his first issue on appeal, Mason maintains that
his conduct was sufficient to opt out of the Medical Benefits Settlement
Agreement by informal means. In so arguing, he points to four actions: (1) the
motion to sever; (2) the motion for reconsideration; (3) communication with the
claims center; and (4) the request for an extension of the opt-out deadline. The
latter three all occurred after the opt-out deadline, so we do not consider them.
We consider only Mason’s argument that the motion to sever should be deemed
an effective “informal” opt out. Cf. In re Four Seasons Securities Laws
Litigation, 493 F.2d 1288, 1289–91 (10th Cir. 1974) (holding that conduct prior
to the opt-out deadline was sufficient to constitute an opt out); Council on Soc.
Work Educ., Inc. v. Tex. Instruments Inc., 105 F.R.D. 68, 71 (N.D. Tex. 1985)
(similar).
We have not directly addressed the degree to which an effort to opt out
that does not conform to the designated procedures can be treated as an
effective opt out. Case law from other circuits and from the district courts
suggests that an opt out request need not perfectly conform to the format
chosen by the district court or the proposed settlement agreement to effectively
express a desire to opt out of a class action settlement. For example, in In re
Four Seasons Securities Laws Litigation, the Tenth Circuit concluded that
notice of an intent to opt out was communicated by a letter sent to a trustee
and the plaintiffs’ attorneys from a class-member bank, inquiring whether the
8
 Case: 15-30597 Document: 00513454596 Page: 9 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598
bank could submit a modified form so that it could remain a member of the
class and still pursue a separate suit previously filed in state court. 493 F.2d
at 1289–91; see also Self v. Ill. Cent. R.R., No. CIV. A. 96-4141, 1999 WL
262099, at *1–2 (E.D. La. Apr. 29, 1999) (construing a motion to remand a case
to state court as sufficiently expressing an intent to opt out when 586
individual plaintiffs “vigorously opposed” removal and inclusion with the class
action and following remand, proceeded in state court without notice of the
need to opt out of the federal action); Bonner v. Tex. City Indep. Sch. Dist. of
Tex., 305 F. Supp. 600, 617 (S.D. Tex. 1969) (declining to certify a class action
and relying on the trial testimony of three potential class members that they
did not wish to be involved in the action in any way as evincing a desire to opt
out of the potential class).
These decisions logically follow from the desire not to require class
members “to retain counsel and prepare a formal legal document” in order to
opt out while preventing excessive informal opt outs that “might pose problems
of authenticity and ambiguity.” 7AA CHARLES ALAN WRIGHT, ET AL., FEDERAL
PRACTICE AND PROCEDURE § 1787 (3d ed. 2005). In cases often involving
hundreds of unrepresented and potentially unsophisticated parties, some
courts have concluded that “considerable flexibility is desirable in determining
what constitutes an effective expression of a class member’s desire to be
excluded.” Id. Although we have not addressed the precise requirements for
allowing class members to informally opt out of class settlements, other courts
have concluded that reasonableness is key. Cf. In re Four Seasons, 493 F.2d
at 1291 (“A reasonable indication of a desire to opt out ought to be sufficient.”
(emphasis added)); Plummer v. Chem. Bank, 668 F.2d 654, 657 n.2 (2d Cir.
1982) (“Any reasonable indication of a desire to opt out should suffice.”
(emphasis added)); Johnson v. Hercules Inc., No. CV298-102, 1999 WL
35648160, at *5 (S.D. Ga. Apr. 28, 1999) (“The Court requires nothing more,
9
 Case: 15-30597 Document: 00513454596 Page: 10 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598
and nothing less, than an unequivocal, explicit, reasonable, and timely request
for exclusion.” (emphasis added)).
We need not decide whether to adopt the approach of these other courts
because, even assuming arguendo that we did so, we are presented with vastly
different circumstances in this case from those in these other cases. Rather
than an informal but unequivocal expression of a desire to opt out or the
submission of an imperfect opt out request, the conduct of Mason and his
attorneys more closely resembles an after-the-fact attempt to depict completely
distinct litigation conduct in another sphere as expressing a desire to opt out.
The district court provided sound reasons for refusing to treat the motion
to sever as an opt out. Mason’s attorney made clear in an affidavit filed with
the district court that he had not discussed the need to opt out with his client
before the opt-out date. Additionally, Mason did not sign the motion to sever.
These facts show that the motion to sever could not have been interpreted as
an informal but effective opt out in this case, to the extent that we would even
recognize such an opt out. As the district court noted, the Agreement required
that an opt out be signed by the class member, not the attorney, in order to
“ensure that the exclusion was with the client’s express consent.” The district
court noted that it “consistently enforced” this “common and practical
requirement” throughout the MDL. Since Mason’s attorney failed to discuss
the need to opt out with his client before the opt-out deadline and Mason did
not sign the motion to sever, the district court reasonably concluded the motion
to sever could not have been interpreted as an effective opt out of the
Agreement. Additional factors supporting the district court’s decision include
that the motion to sever itself was not “unequivocal” in evincing a desire to opt
out, particularly in the event that it was denied. The district court also found
relevant that Mason’s attorney had actual notice of the settlement and said he

10
 Case: 15-30597 Document: 00513454596 Page: 11 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598
had “thoroughly investigated” the Agreement, 4 and that Mason’s attorney had
not followed a court-ordered procedure that would have given him additional
information about the Agreement.
Additionally, the district court expressed concern about setting
precedent for similar requests in the MDL. That concern has particular
relevance in this litigation. Although a concern for encouraging clarity in opt
out requests is relevant in many class actions, this case is no ordinary class
action. It is particularly complex, even epic, given the number of plaintiffs and
defendants, the different types of claims involved (represented by the various
pleading bundles), and the thousands of filings before the district court.
Indeed, the docket sheet for this case spans over 1,300 pages of the appellate
record, representing almost 15,000 docket entries.
The gargantuan size and extraordinary complexity of this litigation
therefore supports the district court’s decision. This multidistrict litigation
“consists of hundreds of cases, with over 100,000 individual claimants . . . .”
Ctr. for Biological Diversity, 704 F.3d at 419. When the district court approved
the Agreement, it noted the class had potentially 200,000 members and that
over 1,700 individuals sent opt-out requests to the claims administrator. Given
the size and complexity of this MDL proceeding, the court and parties should
not have to intuit an opt out from vague statements made in one of thousands
of filings before the court. To hold otherwise would allow class members to
make ambiguous statements and motions while waiting to see if the outcome
of the class action is favorable. The 1966 amendments to Rule 23 sought to

4 As we discuss infra, notice to Mason’s attorney is imputed to Mason. See Link v.
Wabash R.R. Co., 370 U.S. 626, 633–34 & n.10 (1962); Resendiz v. Dretke, 452 F.3d 356, 362
(5th Cir. 2006); Wilson v. Sec’y, Dep’t of Veterans Affairs on Behalf of Veterans Canteen Servs.,
65 F.3d 402, 405 (5th Cir. 1995), as amended on denial of reh’g (Nov. 1, 1995); cf. New York
v. Hill, 528 U.S. 110, 115 (2000).

11
 Case: 15-30597 Document: 00513454596 Page: 12 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598
prevent exactly this type of gamesmanship. See In re Nissan Motor, 552 F.2d
at 1104; Amati v. City of Woodstock, 176 F.3d 952, 957 (7th Cir. 1999). 5
The district court has “especially strong and flexible” managerial power
in this highly complex MDL. Ctr. for Biological Diversity, 704 F.3d at 432. We
will not disturb the eminently reasonable use of that discretion in this
circumstance, which does not involve an unrepresented class member, an
imperfect opt out request, or an unequivocal but informal expression of an
intent to opt out. Accordingly, even assuming arguendo that a reasonable
indication of a desire to opt out would suffice, we conclude that the district
court did not abuse its discretion in determining that Mason’s conduct did not
reasonably indicate a desire to opt out of the Medical Benefits Settlement
Class.
B. Notice of the Medical Benefits Settlement Agreement
In his second issue on appeal, Mason maintains that the notice of the
Agreement was constitutionally deficient in both delivery and content. These
objections seek to challenge the sufficiency of the notice given regarding the
Medical Benefits Settlement Agreement, although this court has already
affirmed the district court’s order approving the Agreement and the attendant
notice procedures. See In re Deepwater Horizon, 739 F.3d 790, 819–21 (5th Cir.
2014). In fact, BP and others challenged the sufficiency of the notice given to
absent class members as part of that appeal, and a panel of this court

5 Mason asserts that the district court erroneously failed to consider the complexity
and confusing nature of his claim vis-à-vis the pleading bundles in determining whether he
informally opted out. First, Mason has not identified any authority that this consideration
is relevant under the law. Second, there is no indication that the district court failed to
consider this fact. Third, even assuming this consideration is relevant to the informal opt-
out analysis, the remaining facts still overwhelmingly support the district court’s decision
determining that Mason did not informally opt out, particularly since Mason was represented
by counsel to aid him in any complexities.
12
 Case: 15-30597 Document: 00513454596 Page: 13 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598
concluded the district court did not abuse its discretion in finding notice of the
Agreement was sufficient. See id. at 819.
“As a general rule, a judgment in a class action will bind the members of
the class.” Kemp v. Birmingham News Co., 608 F.2d 1049, 1054 (5th Cir. 1979),
abrogated in part on other grounds by Nilsen v. City of Moss Point, Miss., 701
F.2d 556, 560 (5th Cir. 1983). Since Mason does not appeal his status as a
member of the Medical Benefits Settlement Class or whether his claims are
now “Released Claims” under the Agreement, the judgment affirming approval
of the Agreement would typically bar his challenge to notice given about the
Agreement.
However, there is an “exception to this rule[,] grounded in due process.”
Kemp, 608 F.2d at 1054. For example, the Eleventh Circuit has held that
“[a]bsent class members can collaterally challenge the res judicata effect of a
prior class judgment . . . because there was not adequate notice . . . .” Juris v.
Inamed Corp., 685 F.3d 1294, 1312–13 (11th Cir. 2012). We held similarly in
an unpublished opinion, ultimately concluding that a class member who was
not truly absent and who received the required notice was precluded from
challenging the prior class action judgment. See Hunter v. Transamerica Life
Ins. Co., 498 F. App’x 430, 435 (5th Cir. 2012) 6; cf. Gonzales v. Cassidy, 474
F.2d 67, 74 (5th Cir. 1973).
The facts of this case indicate that Mason may not collaterally attack the
class action judgment. Mason argues he was deprived of due process because
Mason’s attorney did not realize Mason would be considered a member of the
Medical Benefits Settlement Class, did not receive any of the electronic filing
notifications from the MDL, did not receive the Class Action Settlement

6 Although Hunter is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
13
 Case: 15-30597 Document: 00513454596 Page: 14 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598
Notification, and paid no attention to published notifications regarding the
Agreement. While absent class members may collaterally attack a class action
judgment for a lack of notice and due process, Mason was arguably not absent
because his counsel had actual notice of the Agreement. See Hunter, 498 F.
App’x at 435; Kemp, 608 F.2d at 1054. Mason’s attorney represented to the
district court that he discussed the Agreement with the “Plaintiffs’ Steering
Committee handling the MDL” and that he “thoroughly investigated the
nature of the [Agreement].” Even if he elected not to sign up to receive
electronic notifications of filings in the MDL, in contravention of the district
court’s orders, Mason’s attorney clearly had notice of the Agreement itself. 7
These circumstances are inconsistent with the usual context in which we
allow collateral attacks by an absent class member who lacked notice and any
opportunity to object to a proposed settlement agreement. Cf. Juris, 685 F.3d
at 1312–14. It is well established that notice to Mason’s attorney is imputed
to Mason. See Link v. Wabash R.R. Co., 370 U.S. 626, 633–34 & n.10 (1962);
Resendiz v. Dretke, 452 F.3d 356, 362 (5th Cir. 2006); Wilson v. Sec’y, Dep’t of
Veterans Affairs on Behalf of Veterans Canteen Servs., 65 F.3d 402, 405 (5th
Cir. 1995), as amended on denial of reh’g (Nov. 1, 1995). “Thus, this is not a
case where an absent class member did not receive notice at all.” Hunter, 498
F. App’x at 435. Mason had actual notice through his counsel, which satisfies
due process. 8 See United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,

7 Because we determine that Mason’s counsel received actual notice, we do not
address BP and Seacor’s arguments that constructive notice given in this case also satisfies
due process requirements.
8 Although we conclude Mason is precluded from collaterally attacking the judgment
approving the Agreement, even if we assumed arguendo that Mason could attack the notice
related to the Agreement, we would find his challenge meritless. Mason claims, inter alia,
that the notice was deficient because “nothing in the notice would have alerted Mason that
his Jones Act claims against Seacor, his employer, were subsumed in the settlement . . . .”
Yet, the notice explicitly stated that “BP and all of the ‘Released Parties’ (identified in Section
II.MMMM of the Medical Benefits Settlement Agreement)” would be released by the
14
 Case: 15-30597 Document: 00513454596 Page: 15 Date Filed: 04/06/2016

Nos. 15-30597 cons w/ No. 15-30598
272 (2010) (holding that the receipt of actual notice regarding the contents of
a Chapter 13 plan satisfied the creditor’s due process rights); Kemp, 608 F.2d
at 1054. 9
For these reasons, the judgment of the district court is AFFIRMED.

Agreement for class members who did not opt out. Seacor is identified in the Agreement as
a Released Party, an Agreement Mason’s counsel claimed to have “thoroughly investigated.”
Even if Seacor was not specifically named in the notice sent to class members, other courts
have found such notice sufficient. See, e.g., Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396
F.3d 96, 104–05, 109, 114 (2d Cir. 2005); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d
741, 748 (9th Cir. 2006).
9 See also Nunley v. Dep’t of Justice, 425 F.3d 1132, 1139 (8th Cir. 2005) (noting in
the context of a forfeiture notice that “a person cannot complain about the constitutionality
of the method used to provide notice when he or she has received actual notice (assuming it
is timely), for he or she has suffered no harm”); see, e.g., Diaz v. Romer, 9 F.3d 116, 1993 WL
425143, at *1 (10th Cir. 1993) (unpublished) (“Because [the class member] had actual notice
of the settlement agreement, he was not denied due process.”).
15