PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1630
1988 TRUST FOR ALLEN CHILDREN DATED 8/8/88 - MARIANNE E. &
LAURIE L. ALLEN AND NORA V. GITZ, AS TRUSTEES,
Third Party Plaintiff – Appellant,
v.
BANNER LIFE INSURANCE COMPANY; WILLIAM PENN LIFE INSURANCE
COMPANY OF NEW YORK,
Defendants – Appellees,
and
RICHARD DICKMAN; KENT ALDERSON,
Plaintiffs – Appellees,
and
LEGAL & GENERAL AMERICA, INC.; LEGAL & GENERAL GROUP, PLC,
Defendants.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, Senior District Judge. (1:16-cv-00192-RDB; 1:17-cv-02026-GLR)
Argued: December 7, 2021 Decided: March 15, 2022
1
Before MOTZ and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by published opinion. Judge Motz wrote the opinion, in which Senior Judge
Floyd joined. Judge Rushing wrote an opinion, concurring in part and concurring in the
judgment.
ARGUED: Jeven Robinson Sloan, LOEWINSOHN FLEGLE DEARY SIMON LLP,
Dallas, Texas, for Appellant. George Walton Walker, III, BOLES HOLMES WHITE
LLC, Auburn, Alabama; Timothy J. O’Driscoll, FAEGRE DRINKER BIDDLE & REATH
LLP, Philadelphia, Pennsylvania, for Appellees. ON BRIEF: W. Ralph Canada, Jr.,
David R. Deary, LOEWINSOHN FLEGLE DEARY SIMON LLP, Dallas, Texas; Michael
J. Baxter, BAXTER, BAKER, SIDLE, CONN & JONES, P.A., Baltimore, Maryland, for
Appellant. W. Daniel “Dee” Miles, III, Rachel N. Boyd, Paul W. Evans, BEASLEY,
ALLEN, CROW, METHVIN, PORTIS & MILES, P.C., Montgomery, Alabama; Geoffrey
R. McDonald, Frank H. Hupfl, III, GEOFF MCDONALD & ASSOCIATES, P.C.,
Richmond, Virginia; Christopher T. Nace, PAULSON AND NACE, PLLC, Washington,
D.C., for Appellees Richard Dickman and Kent Alderson. Christopher F. Petillo,
Philadelphia, Pennsylvania, Justin O. Kay, Chicago, Illinois, Brian A. Coleman, FAEGRE
DRINKER BIDDLE & REATH LLP, Washington, D.C., for Appellees Banner Life
Insurance Company and William Penn Life Insurance Company of New York.
2
DIANA GRIBBON MOTZ, Circuit Judge:
After the district court preliminarily approved a settlement of a years-long class
action suit, one class member objected. The court delayed approval of the settlement and
permitted the objector substantial discovery. Upon completion of that discovery, the court
overruled the objection and approved the settlement. The sole objector now appeals.
Because the district court did not abuse its discretion either in certifying the class or
approving the settlement, we affirm.
I.
A.
In 2016, a proposed class of life insurance policyholders (the Dickman class) sued
Banner Life Insurance Company and the William Penn Life Insurance Company of New
York (together, “Banner”) in the District of Maryland. The Dickman class representatives
are former policyholders who allege that they paid “an excess premium . . . to accrue a
higher cash value” in their account. Dickman Compl at 6–7. The Dickman plaintiffs allege
that “Banner is cash strapped” because its parent company has been squeezing dividends
out of the insurer for years. Id. at 50. Faced with these liquidity problems, they claim,
“Banner has decided to take that cash from policyholders through a fraudulent COI
increase.” Id. Specifically, they assert that Banner “dramatically” increased their cost-of-
insurance (“COI”) charges to prompt policyholders to move more money into their
accounts, then “raid[ed the policyholders’] policies’ cash values and attempt[ed] to force
them to surrender their policies.” Id. at 8.
3
After years of contentious litigation involving protracted discovery, the Dickman
parties agreed to a settlement in October 2019. The settlement agreement requires Banner
to refund to class members a portion of the money they had paid, with a minimum of $100
per class member, and provides some nonmonetary benefits, with a total value of roughly
$40 million. The settlement agreement releases Banner from liability for
[a]ny and all claims . . . arising out of or relating to the implemented or not
implemented COI Rate Increases or any claims or causes of action that were
or could have been alleged in the Consolidated Actions Complaints based on
the same factual predicate, including . . . any alleged false, misleading, and/or
fraudulent statements or omissions made in Policy Statements, Policy
communications, marketing materials, Corporate Reports, and websites
relating to the Class Policies’ COI charges, [or] account value.
After a hearing, the district court preliminarily certified the class for settlement
purposes and preliminarily approved the settlement agreement on October 17, 2019. The
parties then sent notices of the proposed settlement and the upcoming final fairness hearing
to class members.
In response, eighty-nine policyholders (less than one percent of the class) opted out.
Only one policyholder, the 1988 Trust for Allen Children Dated 8/8/88 (“the Allen Trust”)
filed an objection to the proposed settlement. 1
1
In August 2019, the Allen Trust had filed its own proposed class action against
Banner (and other defendants not involved in this case) in the Northern District of
California. Banner moved to transfer the Allen Trust’s suit to the District of Maryland,
arguing that the Northern District of California was not as well-positioned to consider its
argument that the Dickman settlement agreement precludes the Allen Trust’s claims. The
Northern District of California granted that motion on January 14, 2020. The Allen Trust’s
suit, No. 1:20-cv-00175-RDB, remains pending in the District of Maryland.
4
B.
The Allen Trust alleged that it bought the same kind of life insurance policy as the
Dickman plaintiffs. According to the Allen Trust, Banner marketed these policies as
“universal,” that is, policies that would “keep the death benefit . . . in place for the
remainder of the Insured’s life.” Under these policies, the policyholder could pay a
constant minimum “guaranteed” premium for twenty years — in the Allen Trust’s case,
$24,220 annually — regardless of how much it cost Banner to provide that insurance. Allen
Compl. at 2. And so, unlike the Dickman plaintiffs who had paid Banner’s allegedly
unlawful COI charges on a rolling basis, the Allen Trust paid only this minimum
guaranteed premium.
Under the terms of the policies that Banner sold both to the Dickman plaintiffs and
the Allen Trust, the policyholder could keep the policy in force after those twenty
guaranteed years by paying additional premiums until the insured’s 100th birthday, at
which point the death benefit would be “lock[ed] in . . . for the remainder of the insured’s
life.” Allen Compl. at 3. The policy provided that post-year-20 premiums could vary with
COI, so that if the cost of providing insurance went up, the policyholder would have to pay
more to keep the policy in force until the insured reached 100 or passed away.
Nevertheless, the Allen Trust apparently did not expect the year-21 payment to increase
over the years. This is so, the Allen Trust contends, because each year Banner sent the
Allen Trust an account statement showing no negative balance on its account, suggesting
that COI had not increased enough to render the $24,220 yearly premium insufficient to
cover Banner’s costs. Id. at 4.
5
But the Allen Trust alleges that in reality, Banner kept “a separate, undisclosed set
of books” carrying a “Deficit Account” that would become due as a massive payment in
year 21 if the insured chose to continue the policy. Id. When the Allen Trust discovered
this discrepancy, Banner told the Trust that it would need to pay upwards of $5.8 million
when the twenty-year guarantee period ended, all to preserve a death benefit of only $1
million. 2 Id. at 5. This balloon payment would thus make it irrational, if not impossible,
for a policyholder to keep a policy in force after the twenty-year guarantee period. In short,
according to the Allen Trust, this supposedly “universal” life insurance policy was a
mirage: as the policyholder approaches year 21, the lifetime benefit shimmers and
disappears, leaving only a twenty-year term policy in its place. The gist of the Allen Trust’s
objection is that the Dickman parties did not give sufficient weight to its claim in
negotiating the Dickman settlement agreement.
C.
The district court held a final fairness hearing in February 2020, where it considered
the Allen Trust’s objection to the proposed Dickman settlement agreement. The court
decided to continue the final hearing, “grant[ing] discovery to determine whether the
parties’ settlement contemplated a deficit account harm” as a “courtesy [] extended to the
Allen Trust.” This, we note, was an extremely unusual occurrence. Objectors “do not have
an ‘absolute right’ to discovery,” and courts are especially likely to deny such discovery
2
Later, when pressed on the source of this $5.8 million charge, Banner reversed its
response, telling the Allen Trust that its balloon payment would actually be only $2.4
million.
6
when, as here, “there is extensive prior discovery” available from the underlying litigation.
4 Newberg on Class Actions § 13:32 (5th ed. 2014) (hereinafter “Newberg”) (collecting
cases). Nevertheless, the district court granted that extraordinary relief, which it
recognized “literally stopped the music” to permit the Allen Trust to take depositions and
serve interrogatories. The court also granted the Dickman parties some reciprocal
discovery.
During this interim discovery, the Allen Trust served four interrogatories and
deposed a Banner employee. Banner served seven interrogatories on the Allen Trust and
deposed a trustee. The district court also permitted the Allen Trust to present a videotaped
deposition of its expert witness, William Mountain, an insurance specialist who had
previously worked with the Allen Trust.
At the conclusion of the second part of the final fairness hearing in May 2020, the
district court overruled the Allen Trust’s objection, certified the Dickman class for purposes
of settlement, and approved the Dickman settlement agreement as fair, reasonable, and
adequate.
The Allen Trust appeals. The Trust argues that the district court abused its
discretion in two ways: first, by holding that the Dickman class met the Rule 23(a)
requirements for class certification; and second, by approving the Dickman settlement as
fair, reasonable, and adequate under Rule 23(e)(2). After careful review of the voluminous
record, we cannot agree.
7
II.
We first address the burden of proof, or lack thereof, on a Rule 23(e)(5) objector.
The Allen Trust strenuously argues that the district court erred in requiring that it carry that
burden as the objector to the class action settlement. See Allen Tr. Br. at 28–33. According
to the Allen Trust, because the Dickman parties bore the burden of demonstrating that class
certification was appropriate and that the settlement agreement was fair, reasonable, and
adequate, the district court abused its discretion in shifting that burden to the Trust. The
Allen Trust correctly notes that we have never clearly described who bears what burdens
when a class member objects to a proposed settlement. We do so now.
Rule 23(e)(5)(a) provides, in relevant part, that an “objection must state whether it
applies only to the objector, to a specific subset of the class, or to the entire class, and also
state with specificity the grounds for the objection.” The Advisory Committee Notes
further explain:
objections must provide sufficient specifics to enable the parties to respond
to them and the court to evaluate them. One feature required of objections is
specification whether the objection asserts interests of only the objector, or
of some subset of the class, or of all class members. Beyond that, the rule
directs that the objection state its grounds “with specificity.” Failure to
provide needed specificity may be a basis for rejecting an objection. Courts
should take care, however, to avoid unduly burdening class members who
wish to object, and to recognize that a class member who is not represented
by counsel may present objections that do not adhere to technical legal
standards.
Fed. R. Civ. P. 23(e)(5)(A) advisory committee’s note to 2018 amendment.
Of course, insofar as the decision to certify the class is at issue, the “burden [lies]
upon the parties seeking class certification.” Gunnells v. Health Plan Servs., Inc., 348 F.3d
8
417, 458 (4th Cir. 2003). The principle behind this rule is that “a class action is ‘an
exception to the usual rule that litigation is conducted by and on behalf of the individual
named parties only.’” Id. (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)).
And because that rationale applies equally to a class settlement releasing claims beyond
those of the named plaintiffs, we think it uncontroversial that in the context of a Rule
23(e)(5) objection, the parties seeking approval of a class settlement also bear the burden
of demonstrating fairness, reasonableness, and adequacy.
In addition, the court “act[s] as a fiduciary of the class.” Sharp Farms v. Speaks,
917 F.3d 276, 293 (4th Cir. 2019). In this role, “the district court has a fiduciary
responsibility to ensure that the settlement is fair and not a product of collusion, and that
the class members’ interests were represented adequately.” Id. at 294 (quoting Maywalt v.
Parker & Parsley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir. 1995) (cleaned up)).
We can synthesize all this as follows:
First, an objector to a class settlement must state the basis for its objection with
enough specificity to allow the parties to respond and the court to evaluate the issues at
hand. This requirement is somewhat analogous, though not necessarily identical, to the
notice pleading required for complaints. See Fed. R. Civ. P. 8(a) (“[A] claim for relief
must contain: . . . a short and plain statement of the claim showing that the pleader is
entitled to relief.”).
Second, the parties propounding the settlement, in addition to bearing the initial
burden to show that the proposed class meets the Rule 23(a) requirements for certification
and that a proposed settlement is fair, reasonable, and adequate, must show that the
9
objection does not demonstrate that the proposed settlement fails one of those
requirements. The showing necessary to prevent an objection from derailing a settlement
will, of course, vary with the strength of the objection itself; frivolous objections may need
very little to overcome them, while weightier objections will require more.
Third, the district court, at all times, remains a fiduciary of the class. Sharp Farms,
917 F.3d at 293–94. The district court must protect the class’s interests from parties and
counsel overeager to settle (who may deny absent class members relief that they would
otherwise receive) and frivolous objectors (who may impede or delay valuable
compensation to others). The district court may, in its discretion, grant an objector
discovery to assist the court in determining an objection’s merit. See Newberg § 13:32
(“The touchstone for [granting an objector discovery] is that it will ultimately assist the
court in determining the fairness of the settlement.”).
Upon a review of the record, we do not understand the district court to have done
anything different than what we have just outlined. The court required the Allen Trust to
specify and support its objection, while keeping the ultimate burden on the proponents of
the settlement to demonstrate its fairness. Thus, the Allen Trust’s argument that the court
improperly placed upon it the burden of overcoming the settlement provides no basis for
reversal.
III.
We next address whether the district court erred in certifying the Dickman class.
We review for abuse of discretion. In re Zetia (Ezetimibe) Antitrust Litig., 7 F.4th 227,
233 (4th Cir. 2021). The proponents of “class certification must affirmatively demonstrate
10
[their] compliance with” the requirements of Federal Rule of Civil Procedure 23. Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). These requirements are: (1)
numerosity (which no one disputes the Dickman class meets); (2) commonality; (3)
typicality; and (4) adequacy. See In re Zetia, 7 F.4th. at 233–34; Fed. R. Civ. P. 23(a).
A.
We initially turn to commonality. 3 In a Rule 23(b)(3) class action like this one, “the
‘commonality’ requirement of Rule 23(a)(2) is ‘subsumed under, or superseded by, the
more stringent Rule 23(b)(3) requirement that questions common to the class predominate
over’ other questions.” Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 n.4 (4th Cir. 2001)
(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 509 (1997)). So “the mere fact
that the defendants engage in uniform conduct is not, by itself, sufficient to satisfy” the
commonality requirement here. EQT Prod. Co. v. Adair, 764 F.3d 347, 366 (4th Cir. 2014).
Rather, in a Rule 23(b)(3) case, “[t]he predominance inquiry focuses not only on the
existence of common questions, but also on how those questions relate to the controversy
at the heart of the litigation.” Id.
3
The Dickman parties claim that the Allen Trust waived its commonality and
adequacy arguments by not presenting them to the district court. Banner Life Br. at 32;
Dickman Br. at 18. But the record is exceedingly clear that the Allen Trust did not waive
these arguments. Although the Allen Trust’s objection does not contain a separate section
for commonality, it does contain a lengthy discussion of typicality and adequacy, and these
requirements “tend[] to merge.” Amchem Prods., 521 U.S. at 626 n.20. For this very
reason, we have previously refused to hold that a party waived arguments about one of
these class certification requirements where, “[a]lthough more explicit separation of the . .
. commonality inquir[y] would no doubt have been wise,” the party’s arguments “directly”
raised the same points. Brown v. Nucor Corp., 785 F.3d 895, 918 (4th Cir. 2015). So too
here.
11
At the preliminary certification hearing, the district court explained that the class
included “policyholders whose standardized form policy included a uniform contractual
provision that was allegedly breached by Defendants’ common course of conduct in
increasing these COI rates.” Moreover, in examining “Plaintiffs’ fraud claims, [to]
determin[e] whether Defendants misrepresented the performance of the policies . . . would
certainly involve resolution of an issue central to the settlement class members’ claims in
one fell swoop.” Id. Therefore, pursuant to Rule 23(b)(3), the court found that these
common questions “clearly . . . predominate . . . because the central question to be decided
here is whether Banner and William Penn’s implementation of the COI rate increases
breached the standardized policy language.” The court memorialized these preliminary
findings in a subsequent written order.
After the Allen Trust objected to these preliminary findings, the district court took
the unusual step of permitting discovery. The Allen Trust’s expert, William Mountain,
testified in his deposition that the year-21 balloon payment at issue in the Allen Trust’s
case appeared to consist of the unpaid COI charges at the heart of the Dickman litigation. 4
Similarly, in a response to the Allen Trust’s interrogatories, Banner stated that the balloon
payment “is comprised of unpaid COI (and expense) charges during the [20-year]
4
To the extent that the Allen Trust argues that the Dickman parties never proved
that the so-called “deficit account” consisted only of COI charges, we note that the
magistrate judge who oversaw discovery gave the Allen Trust the opportunity to ask for
such proof by rewording an interrogatory. The Allen Trust, apparently, did not do so.
Moreover, the crucial evidence before the district court was the testimony of the Allen
Trust’s own expert that the year-21 balloon payment was “consistent with the amount of
unpaid COI charges” at issue in Dickman and Banner’s above-quoted response to the Allen
Trust’s (unreworded) interrogatory.
12
Guarantee Period (as defined in the policy) and the COI (and expense) charges due in Year
21 of the policy.” After reviewing the information revealed in discovery, the district court
stated at the final approval hearing: “it’s clear to me that the Allen Trust is within the ambit
of the class,” and that “questions of law, in fact, are common to the class.” Moreover, “the
common questions predominate over any questions affecting only individual members.”
The court entered a subsequent order expressly incorporating its findings from the
preliminary approval into the final approval.
This finding, made after the grant of discovery to the Allen Trust, did not constitute
an abuse of discretion. The Trust vigorously argues that its asserted “deficit account harm”
is totally different from the “negative account value” that the Dickman parties considered
in negotiating the settlement agreement. But upon closer examination, the Allen Trust’s
and Dickman plaintiffs’ claims are two sides of the same coin. The difference, such as it
is, turns on when the plaintiffs would have to pay the allegedly unlawful charges. The
Dickman plaintiffs had been paying them on a rolling basis, going above and beyond the
guaranteed minimum payment during the first twenty years. The Allen Trust may have to
pay these charges all at once, in year 21. But the COI charges themselves are the same.
Based upon the record, and in light of our deference to the district court in the
trenches of fact-intensive class action litigation, we cannot say that the court abused its
13
discretion in holding that this temporal distinction was not substantial enough to defeat
commonality, or — as we shall see — any other aspect of the Dickman settlement. 5
B.
As to typicality, “[t]he commonality and typicality requirements of Rule 23(a) tend
to merge[,]” and so we need not tarry for long. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 157
n.13 (1982). At the preliminary approval hearing, the district court held “that the Plaintiffs’
fraud claims are typical of [the] settlement class because their claims arise from the
Defendants’ same conduct.” And the court reiterated that holding at the final approval
hearing, concluding that the Allen Trust’s claim did not defeat typicality because its
asserted harm, the year-21 balloon payment, turned on unlawful COI charges — just like
the Dickman class’s claims. The district court did not abuse its discretion in doing so.
C.
We turn to adequacy. As an initial matter, we agree with the Allen Trust insofar as
it argues that the district court at the final approval hearing did not perfectly describe the
requirements of the Rule 23(a)(4) adequacy standard.
At the final approval hearing, the court stated: “[I]n terms of adequacy of
representation, this has been ably presented by counsel, and obviously the lawyers here,
the quality of the briefing is such that there’s no question in terms of adequacy of
5
Parties seeking Rule 23(b)(3) class certification, in addition to demonstrating that
“questions of law or fact common to class members predominate over any questions
affecting only individual members,” must also show that “proceeding as a class is superior
to other available methods of litigation.” In re Zetia, 7 F.4th. at 234 (emphasis added).
The Allen Trust does not contend that this superiority requirement has not been met.
14
representation.” Although we too have little doubt about the competency of any of the
counsel involved in this case, the world’s greatest lawyers cannot adequately represent you
if they are busy advocating for someone else. As the Supreme Court explained in Amchem
Prods., Inc. v. Windsor, “[t]he adequacy inquiry under Rule 23(a)(4) serves [in part] to
uncover conflicts of interest between named parties and the class they seek to represent.”
521 U.S. 591, 625 (1997).
Thus, although an incompetent lawyer is not adequate, class counsel’s competence
is merely necessary, not sufficient, for Rule 23(a)(4) adequacy. At the preliminary
approval hearing, however, the district court expressly recognized that “in terms of
adequacy of representation, there are two requirements,” lack of conflicts and class
counsel’s competency. In its final approval order, the district court incorporated its
findings from the preliminary approval hearing, which included this correct statement of
the law. Although the district court could perhaps have described the legal standard with
more clarity, the record is quite clear that it understood that standard perfectly.
Moreover, counsel in Dickman were quite clearly “adequate” for Rule 23(a)(4)
purposes. That is so because a conflict of interest “will not defeat the adequacy requirement
if it is ‘merely speculative or hypothetical.’” Ward v. Dixie Nat’l Life Ins. Co., 595 F.3d
164, 180 (4th Cir. 2010) (quoting Gunnells, 348 F.3d at 430). Here, the Allen Trust asserts
that a conflict arises from the fact that, in the future, it may need to make a year-21 balloon
payment if it wants to prolong its policy. But as the Dickman parties argue and as the
district court found, this is entirely speculative. Before being faced with the year-21
balloon payment, Allen Trust’s insured will need to survive to the age of 96 and the Allen
15
Trust will need to choose to keep the policy in effect until that time. That may happen, or
it may not. 6 (We of course hope that the insured enjoys a long life.)
The Allen Trust’s contention is comparable to the arguments we rejected in Ward.
That case involved insurance policyholders suing to force insurance companies to cover
the “actual charges” of their cancer treatment. Id. at 169. The insurers asserted that the
class violated Rule 23(a)(4) adequacy because the lawsuit’s success “will cause premiums
to increase enough to adversely affect some members of the class.” Id. at 180. We affirmed
the district court’s rejection of that argument, holding that a possible future increase in
insurance rates was an “uncertain prediction” that was too speculative to establish an
adequacy-busting conflict. Id. Similarly here, because the notion that the Allen Trust does
(or will ever) have a distinct claim is “merely speculative or hypothetical,” it cannot defeat
adequacy. Gunnells, 348 F.3d at 430.
6
The Allen Trust also argued to the district court that in addition to a possible year-
21 balloon payment, it has already suffered an injury because Banner’s acts made it
impossible for the Allen Trust to sell the policy on the secondary market. Certainly, acts
that prevent a plaintiff from buying or selling certain products may give rise to a claim. Cf.
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214 (2021) (holding that plaintiff alleged
sufficient injury for standing purposes where he asserted that defendant’s misleading credit
report caused car dealership to refuse to sell him a car). But the Allen Trust’s only
reference to this theory of harm in its opening brief before us is an oblique mention of
“diminution of value.” Allen Tr. Br. at 39. Thus, the Allen Trust has waived any argument
that it has a claim based on this theory of injury. See Grayson O Co. v. Agadir Int’l LLC,
856 F.3d 307, 316 (4th Cir. 2017) (“A party waives an argument by failing to present it in
its opening brief or by failing to ‘develop its argument — even if its brief takes a passing
shot at the issue.” (quoting Brown, 785 F.3d at 923 (cleaned up)).
16
D.
“Because a district court possesses greater familiarity and expertise than a court of
appeals in managing the practical problems of a class action, its certification decision is
entitled to ‘substantial deference,’ especially when the court makes ‘well-supported factual
findings supporting its decision.’” Ward, 595 F.3d at 179 (quoting Gunnells, 348 F.3d at
434, 421). This case, chock-full of the most esoteric principles of life insurance accounting
imaginable, could be the poster child for that rule. The district court did a commendably
careful job in evaluating the Allen Trust’s arguments and determining that they did not
justify refusing to certify the class. It did not abuse its discretion in doing so.
IV.
In addition to its challenge to the district court’s decision to certify the Dickman
class under Rule 23(a), the Allen Trust also argues that the court erred in approving the
settlement under Rule 23(e)(2). On this second issue, our review is once again for abuse
of discretion. In re Lumber Liquidators Chinese-Manufactured Flooring Prods. Mktg.,
Sales Practices & Prods. Liab. Litig., 952 F.3d 471, 483 (4th Cir. 2020). “When the court
reviews a proposed class-action settlement, it acts as a fiduciary for the class.” Id. at 483–
84 (citing Sharp Farms, 917 F.3d at 293–94). In fulfilling this role, the district court must
conclude that a proposed settlement is “fair, reasonable, and adequate.” Fed. R. Civ. P.
23(e)(2).
A.
Under Rule 23(e)(2), “[t]he fairness analysis is intended primarily to ensure that a
‘settlement is reached as a result of good-faith bargaining at arm’s length, without
17
collusion.’” Berry v. Schulman, 807 F.3d 600, 614 (4th Cir. 2015) (alteration omitted)
(quoting In re Jiffy Lube Sec. Litig., 927 F.2d 155, 159 (4th Cir. 1991)). “[W]e have
identified four factors for determining a settlement’s fairness, which are: (1) the posture
of the case at the time settlement was proposed; (2) the extent of discovery that had been
conducted; (3) the circumstances surrounding the negotiations; and (4) the experience of
counsel in the area of the class action litigation.” Lumber Liquidators, 952 F.3d at 484
(citing Jiffy Lube, 927 F.2d at 159).
As the district court summarized at the preliminary approval hearing, “[t]he
settlement was reached after an extensive motions practice, extensive discovery and
investigation of Banner and William Penn policies by Plaintiffs’ counsel and multiple
settlement discussions and negotiations.” At the final approval hearing, after considering
the arguments of the Allen Trust, the district court reiterated: “the settlement resulted from
noncollusive arm’s-length negotiations conducted in good faith by counsel. Collectively,
co-lead counsel have over 55 years of experience in complex litigation and class actions.”
Paying particularly close attention to the protracted litigation preceding the settlement, the
court noted that the “plaintiffs here litigated the claims against defendants, [through]
motions practice, discovery, dispositive motions, and protracted mediation which was not
successful.” And “discovery, not even counting the discovery since February when I
delayed my final approval of this settlement [for the Allen Trust to conduct its own
discovery], has included some 7,500 documents consisting of countless pages.”
The district court’s analysis is functionally identical to previous cases in which we
have upheld a class settlement approval as fair. See, e.g., Lumber Liquidators, 952 F.3d at
18
484–85 (upholding settlement as fair where parties had litigated dispositive motions,
“conducted significant discovery by deposing thirteen witnesses and reviewing vast
quantities of documents,” “engaged in arm’s length negotiations and participated in several
mediations,” and were represented by counsel with “extensive experience in complex civil
litigation.”). Under these circumstances, we simply cannot say that the district court
abused its discretion.
B.
The Allen Trust’s arguments challenging the settlement sound mostly in adequacy. 7
This court has “specified the following factors for assessing” a class settlement’s
“adequacy”:
(1) the relative strength of the plaintiffs’ case on the merits; (2) the existence
of any difficulties of proof or strong defenses the plaintiffs are likely to
encounter if the case goes to trial; (3) the anticipated duration and expense
of additional litigation; (4) the solvency of the defendant and the likelihood
of recovery on a litigated judgment; and (5) the degree of opposition to the
settlement.
Id. at 484.
Banner’s solvency is not at issue here. As to the other factors, the district court
comprehensively addressed the prongs involving the costs and risks of litigation and the
opposition to the settlement. For example, the court noted the existence of “defenses . . .
7
We note that “adequacy” for Rule 23(e)(2) settlement approval purposes is not
identical to “adequacy” in the Rule 23(a)(4) class certification context, although (as we
shall see) the two can overlap in some respects. The former addresses whether a settlement
is good enough to justify extinguishing the claims of absent individual class members; the
latter addresses whether the class representatives will do a good enough job to justify
allowing the plaintiffs to proceed as a class at all.
19
which raised obstacles to recovery, including without limitation . . . whether the plaintiffs
satisfied Rule 23 by demonstrating liability and whether damages can be established by
classwide proof.” Given these defenses and the potential costs of litigating the case —
even if successful — the court found that “[a]pproving this settlement now avoids
protracted litigation costs and risks to the settlement class and provides them with
immediate recovery.” Because the district court had been “on the firing line” for years of
motions practice and discovery, id. (quoting Joel A. v. Giuliani, 218 F.3d 132, 139 (2d Cir.
2000)), we will not easily disregard this assessment.
But that does not alone answer the thrust of the Allen Trust’s objection — that the
settlement agreement is inadequate as to it because under the agreement the Trust must
give up something for nothing. 8 As a general matter, a settlement agreement may be
8
It is not clear that the settlement actually does release any of the Allen Trust’s
claims against Banner. As the Dickman plaintiffs note, the settlement agreement only
releases claims “based on the same factual predicate” as the Dickman complaint. Dickman
Br. at 24–25; see also Berry, 807 F.3d at 616 (noting that class action settlement may
release only “claims arising out of the ‘identical factual predicate’” as class representatives’
allegations (citation omitted)). The crux of the Dickman complaint is that the plaintiffs
paid more than the minimum guaranteed premium. Indeed, their complaint asserts that
they could have avoided many of the alleged harms if they had been able to “reduce[] their
premium payments to the minimum required premium[,]” Dickman Compl. at 57 — that
is, if they had done exactly what the Allen Trust did. Of course, this is not the Allen Trust’s
lawsuit, and so whether the settlement in this case dooms the Allen Trust’s separate action
(or a future action if it ever does need to make the year-21 balloon payment) is not at issue
here. See McAdams v. Robinson, No. 21-1087, slip op. at 18 (4th Cir. Feb. 10, 2022)
(explaining that “[w]hether the release covers claims not alleged in [a] class action
complaint is for a court enforcing the release to decide” and that to opine on whether a
release bars another case “would be advisory.”). We note this issue only to emphasize that
the Allen Trust’s arguments about the release’s breadth overlook an obvious limiting
principle — that if its claim arises from distinct facts, then the Dickman settlement does
not bar that claim.
20
inadequate if it forces class members to release valuable claims for nothing in return. See
Newberg § 13:60 (noting that “‘red flags’ [for settlement approval include] . . .
compromising class members’ claims without providing compensation in return.”).
However, the district court found that at this time, the Allen Trust did not have much
of a claim at all, and so was not really giving up very much. See Newberg § 13:60 (“It is
fine to release a claim without compensation if the value of the claim is zero.”).
Specifically, the district court held: “there is literally no negative account value to date
which has ever been paid by the Allen Trust, and it remains totally subjective and
speculative that there ever would be such damages.” We noted earlier that the distinction
between the Allen Trust’s theory and that of the Dickman plaintiffs is basically temporal;
because the Allen Trust has not paid, and may never pay, the allegedly unlawful COI
charges, the district court held that its asserted harm is too speculative to render the
settlement inadequate. As in our discussion of Rule 23(a)(4) adequacy, we cannot say that
this evaluation of the Allen Trust’s theory of the case constituted an abuse of discretion.
Moreover, the ferocity of the Allen Trust’s objection is not the only thing to be
considered. The district court also properly noted that the Allen Trust’s concerns, however
strongly held, were apparently not widespread. See Lumber Liquidators, 952 F.3d at 484
(noting that courts considering adequacy of class settlement should consider “the degree of
opposition to the settlement”). Indeed, the Allen Trust was the only class member to object
to the settlement (although it did not opt out of the class). See Berry, 807 F.3d at 618
(“[T]he fact that only one of the approximately 200 million members of the . . . Class
21
objects . . . is relevant to our decision [upholding the settlement as fair, reasonable, and
adequate].”).
C.
Finally, “[a]lthough we have not enumerated factors for assessing a settlement’s
reasonableness,” Lumber Liquidators, 952 F.3d at 484, we have suggested that assessing
whether a class settlement is “reasonable” involves examining the amount of the
settlement. See, e.g., Sharp Farms, 917 F.3d at 303–04. To the extent that reasonableness
does any work not already performed by one of the other Rule 23(e)(2) requirements, we
think it at least ensures that the amount on offer is commensurate with the scale of the
litigation and the plaintiffs’ chances of success at trial. See Newberg § 13:49 (“In
evaluating the value of the class members’ claims, the court need not decide the merits of
the case nor substitute its judgment of what the case might be worth for that of class
counsel; however, ‘the court must at least satisfy itself that the class settlement is within
the “ballpark” of reasonableness.’” (citation omitted)).
The Allen Trust does not complain that the size of the Dickman settlement — valued
at roughly $40 million — is itself too small. And although the Allen Trust contends that
the $100 minimum settlement benefit that it would receive is wildly out of proportion to
the harms it has suffered, that argument falls more under the adequacy inquiry, discussed
above.
The record makes clear that the district court carefully weighed the size of the
proposed settlement against the claims at issue and found that this settlement compares
favorably to other similar settlements. The court did not abuse its discretion.
22
V.
In sum, the district court did not abuse its discretion either in certifying the Dickman
class or in approving the settlement as fair, reasonable, and adequate. Therefore, the
judgment of the district court is
AFFIRMED.
23
RUSHING, Circuit Judge, concurring in part and concurring in the judgment:
I agree with the majority that the district court did not abuse its discretion in
certifying the Dickman class or in approving the settlement. Regarding the adequacy of
the class representatives, however, I reach that conclusion by a different route.
As a condition of certification, Rule 23(a)(4) requires that class representatives “will
fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). To be
adequate, the named representatives “must be part of the class and possess the same interest
and suffer the same injury as the class members.” Amchem Prods., Inc. v. Windsor, 521
U.S. 591, 625–626 (1997) (internal quotation marks omitted).
On appeal, the Allen Trust argues that the Dickman plaintiffs, as former
policyholders, cannot adequately represent the interests of current policyholders like the
Allen Trust because their remedial goals are not aligned. Former policyholders seek to
maximize repayments from Banner for charges already collected, whereas current
policyholders’ interests are largely prospective. We have held that analogous conflicts of
interest can destroy adequacy. See Broussard v. Meineke Disc. Muffler Shops, Inc., 155
F.3d 331, 339 (4th Cir. 1998); Sharp Farms v. Speaks, 917 F.3d 276, 307–308 (4th Cir.
2019) (Quattlebaum, J., concurring); see also Ortiz v. Fibreboard Corp., 527 U.S. 815, 856
(1999) (“[I]t is obvious after Amchem that a class divided between holders of present and
future claims . . . [creates] conflicting interests of counsel.”).
But the Allen Trust did not advance this argument in the district court. There, the
Allen Trust contended that the class representatives were inadequate because they suffered
only “COI harm” while the Allen Trust asserted an allegedly distinct injury it called “deficit
24
account harm.” As the majority correctly explains, the district court did not abuse its
discretion in rejecting that argument. See supra, at 12–14 & n.4. It is materially different,
however, from the argument the Allen Trust pursues on appeal. Nor can the Allen Trust
salvage its new argument by claiming that it merely repackages its old argument about the
types of harm with new temporal labels. Current policyholders may have suffered COI
harm, deficit account harm, or both, just like former policyholders. The two groups’
divergent remedial interests—as the Allen Trust characterizes them on appeal—raise a
distinct legal issue from the supposedly different harms on which the Allen Trust based its
argument below.
We ordinarily do not consider arguments raised for the first time on appeal. See
Campbell v. Bos. Sci. Corp., 882 F.3d 70, 80 (4th Cir. 2018); First Va. Banks, Inc. v. BP
Expl. & Oil Inc., 206 F.3d 404, 407 n.1 (4th Cir. 2000). And “[a]n objection in the district
court on one ground does not preserve for appeal objections on different grounds.” United
States v. Green, 996 F.3d 176, 187 (4th Cir. 2021) (Rushing, J., concurring) (citing United
States v. Massenburg, 564 F.3d 337, 342 n.2 (4th Cir. 2009)). Finding no reason to deviate
from our usual practice here, I would hold the Allen Trust’s adequacy challenge forfeited
and would not address its merits. Thus, with the exception of Part III-C concerning the
adequacy of the class representatives, I am pleased to join the majority’s opinion.
25