New Englad Health Care Employees Pension Fund v. Woodruff

BRISCOE, Circuit Judge,

dissenting:

Because the majority errs (1) in its determination that Joseph Nacchio and Robert Woodruff (“Non-Settling Defendants”) have standing to contest the two Contractual Provisions, and (2) in its decision to remand to the district court for a more detailed analysis of Non-Settling Defendants’ objections, I respectfully dissent.

I.

I agree with the majority that Non-Settling Defendants have standing to contest the Complete Bar Order and the Reform Act Bar Order. I disagree, however, that they have standing to contest the two Contractual Provisions.

The Contractual Provisions protect the Settling Defendants and other Released Persons in the event that the Bar Orders fail to do so. The first of the Contractual Provisions is an indemnification clause. It provides, in essence, that if Plaintiffs obtain a settlement or judgment against Non-Settling Defendants, and Non-Settling Defendants successfully recover some of that liability from any of the Released Persons, then Plaintiffs will subtract that amount from the settlement or judgment against Non-Settling Defendants.1 Simi*1292larly, the second of the Contractual Provisions contains an agreement by Plaintiffs not to settle any claim or judgment against Non-Settling Defendants without obtaining a release of any claims Non-Settling Defendants may have against the Released Persons.2

Non-Settling Defendants do not have standing to challenge these provisions. To have standing under Article III, Non-Settling Defendants “must demonstrate standing for each claim that [they] seek[ ] to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 126 S.Ct. 1854, 1867, 164 L.Ed.2d 589 (2006). In a closely analogous situation, we recently explained:

Non-settling defendants generally have no standing to complain about a settlement, since they are not members of the settling class....
Courts have recognized a limited exception to this rule where nonsettling parties can demonstrate they are “prejudiced” by a settlement. However, it is not sufficient for [the non-settling defendants] to show merely the loss of some practical or strategic advantage in litigating their case. “Prejudice” in this context means “plain legal prejudice,” as when the settlement strips the party of a legal claim or cause of action.

In re Integra Realty Res., Inc. (In re Integra I), 262 F.3d 1089, 1102 (10th Cir.2001) (citations, alterations, and some internal quotation marks omitted).

Contrary to the majority’s misreading of the Contractual Provisions, they do not “essentially strip” or “palpably interfere with” Non-Settling Defendants’ “preexisting rights and potential legal claims.” (Majority Op. at 1289.) Rather, the Contractual Provisions simply provide for a private contractual agreement between Plaintiffs and the Released Persons, whereby Plaintiffs agree not to negotiate a settlement with Non-Settling Defendants that prejudices the Released Persons — and to indemnify the Released Persons if they do. Even if the practical effect of the Contractual Provisions is to decrease Plaintiffs’ incentive to settle with the Non-Settling Defendants, this “show[s] merely the loss of some practical or strategic advantage in litigating their case,” rather than any “plain legal prejudice.” In re Integra I, 262 F.3d at 1102.

*1293By paraphrasing the terms of the second Contractual Provision as “mandat[ing] that Plaintiffs must obtain a release,” (Majority Op. at 1289-90 n. 3), the majority omits the simple fact that Non-Settling Defendants remain in control of whether they will, or will not, enter into a settlement with Plaintiffs in the first place. Non-Settling Defendants have choices. Unless and until Non-Settling Defendants agree to a settlement with Plaintiffs, the question of a release does not arise. As for the first Contractual Provision, which the majority describes as “mandat[ing] that Plaintiffs ... must reduce the settlement amount by any amount [Non-Settling Defendants] might still receive as an indemnity from Qwest,” (Majority Op. at 1289-90 n. 3), this provision merely guarantees that Plaintiffs will not indirectly recover additional amounts from the Released Persons, over and above the $400 million that the Released Persons have already agreed to pay under the Settlement. This provision ensures that, if Plaintiffs recover $X from Non-Settling Defendants, and Non-Settling Defendants later recover that amount ($X) from the Released Persons (via, for instance, an action for indemnification), then Plaintiffs will reduce their recovery against Non-Settling Defendants to nothing. This agreement is solely between Plaintiffs and the Released Persons. It guarantees the Released Persons that their total liability will be $400 million — no more, no less — and provides them with the peace of mind that settling parties both expect and require. Non-Settling Defendants are not prejudiced by either Contractual Provision.

The majority’s standing analysis, moreover, is infinitely open-ended, and its perfunctory attempt to reconcile its holding with In re Integra I is unpersuasive. (Majority Op. at 1289.) The majority relies upon an isolated statement from In re Integra I that “ ‘[pjlain legal prejudice ... has been found to include any interference with a party’s contract rights or a party’s ability to seek contribution or indemnification.’ ” In re Integra I, 262 F.3d at 1102 (quoting Agretti v. ANR Freight Sys., Inc., 982 F.2d 242, 247-48 (7th Cir.1992)). However, the Seventh Circuit’s decision in Agretti — from which the above-quoted language was lifted verbatim — shows exactly why Non-Settling Defendants do not have standing to contest the Contractual Provisions in this case. In Agretti, 982 F.2d at 244, two defendants — ANR and Local Union No. 710 — had previously agreed upon a labor contract, and a majority of the members of Local 710 had ratified the contract. Several members of Local 710, though, brought a class action against ANR and Local 710, arguing, among other things, that the ratification process was improper. Id. at 244-45. Eventually, the plaintiff class reached a settlement with Local 710, which “required Local 710 to declare the ... ratification vote and ANR’s implementation of the profit sharing plan void; ... and required Local 710 to assist the plaintiffs and cooperate with them for the rest of the litigation against ANR.” Id. at 245. The non-settling defendant, ANR, objected to the settlement, arguing that “it suffered] plain legal prejudice because the settlement invalidate^] its contracts with Local 710 and violate[d] its due process rights,” and that its “contract rights [were] invalidated by the settlement ... because the settlement require[d] a repudiation of the contract between Local 710 and ANR.” Id. at 247. The Seventh Circuit flatly rejected this argument:

We do not believe that ANR’s rights are legally prejudiced by this provision or any other one in the settlement. Local 710 is not repudiating the contract, the settlement simply requires it to make some unilateral declarations. ANR still has all of its rights under the contract and may protect those rights through any contractual provisions or legal ac*1294tion. Nor is ANR precluded in any manner from enforcing its rights under the contract with Local 710. While Local 710 is required under the settlement to declare the ratification vote and implementation of the profit sharing plan void, ANR may continue to assert its position that the vote and profit sharing plan are valid and enforceable.

Id. at 247-48.

Like ANR, Non-Settling Defendants here are not “legally prejudiced” by the Contractual Provisions. Id. at 247. The Contractual Provisions “simply require[] ... some unilateral declarations” by parties other than Non-Settling Defendants. Id. at 247-48. Non-Settling Defendants “still ha[ve] all of [their] rights under the[ir indemnification] contracts] and may protect those rights through any contractual provisions or legal action.” Id. at 248. “Nor [are Non-Settling Defendants] precluded in any manner from enforcing [their] rights under the[ir] contract[s] with [Qwest].” Id. Even with the Contractual Provisions in force, Non-Settling Defendants “may continue to assert [their] position that [their indemnification rights are] valid and enforceable.” Id. Thus, under the Seventh Circuit’s decision in Agretti, which we relied upon verbatim in In re Integra I, 262 F.3d at 1102, the majority’s standing analysis fails, and Non-Settling Defendants lack standing to challenge the Contractual Provisions here.3 See also In re Sch. Asbestos Litig., 921 F.2d 1330, 1333 (3d Cir.1990) (holding that non-settling defendants lacked standing to challenge a similar provision).

In their briefs, Non-Settling Defendants appear to recognize that their standing argument is weak as to the Contractual Provisions, and they assert a scattershot of alleged injuries resulting from the Contractual Provisions. None of the alleged injuries, however, is sufficient to confer standing. For instance, Non-Settling Defendants contend, in passing, that the provisions were a breach of Qwest’s “Bylaws, contracts with Non-Settling Defendants and obligations of good faith and fair dealing,” as well as a tortious interference with their indemnification rights. Non-Settling Defendants’ Reply Br. at 24-25. Non-Settling Defendants, though, provide no legal authority for such claims and do not explain how the Contractual Provisions rise to such a level. See Am. Airlines v. Christensen, 967 F.2d 410, 415 n. 8 (10th Cir.1992) (“It is insufficient merely to state in one’s brief that one is appealing an adverse ruling below without advancing reasoned argument as to the grounds for the appeal.”).

II.

The majority also errs in vacating the district court’s order and remanding for more detailed analysis by the district court.

The district court’s consideration and analysis, while not perfect, were more than adequate in this case. In a recent case, we addressed an almost identical situation as the one we face here, where objectors “arguefd] that the district court did not adequately support its approval of the Settlement by explaining the reasons for its approval and for its rejection of the objections that were raised.” In re Integra Realty Res., Inc. (In re Integra II), 354 F.3d 1246, 1268 (10th Cir.2004) (citations *1295and internal quotation marks omitted). We explained:

To be sure, “ ‘a reviewing court [must] have some basis for distinguishing between well-reasoned conclusions arrived at after a comprehensive consideration of all relevant factors, and mere boilerplate approval phrased in appropriate language but unsupported by evaluation of the facts or analysis of the law.’” Newman v. Stein, 464 F.2d 689, 692 (2d Cir.1972) (quoting Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 434, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968)). However, while more extensive explanation by the district court may have been helpful to our review, we will not overturn the district court’s decision on the basis of a “merely formal” deficiency as long as the decision finds support in the record. Protective Comm., 390 U.S. at 437, 88 S.Ct. 1157.

Id. (alteration in original). Because the district court in that case (1) “considered all prior proceedings in the case and all objections and submissions that were made in connection with the proposed settlement,” (2) reviewed “materials [that] ... included all written objections to the settlement,” (3) “heard objections” at the settlement fairness hearing, and (4) “was aware of all the issues that appellants now argue should have been considered when determining the settlement’s fairness,” we held that “the district court did not abuse its discretion by approving the settlement.” Id. at 1268-69.

Here, as in In re Integra II, the district court reviewed and considered all of the submissions and materials. See Hearing Transcript, ROA, Vol. III, at 939 (explaining that the “reasons stated, arguments advanced and authorities already cited” have been “carefully read and considered by the court, and its most competent and able staff’); Dist. Ct. Order, ROA, Vol. III, at 1004 (“I have reviewed carefully the Stipulation, Nacchio and Woodruffs objections, Qwest’s reply to the objections of Nacchio and Woodruff, and the applicable law.”).4 Here, as in In re Integra II, the district court entertained objections at a fairness hearing. As Appellee Qwest notes, “[c]ounsel for both Nacchio and Woodruff attended the hearing, and counsel for Nacchio presented argument on behalf of both of them.” Appellee Qwest’s Br. at 21; see Hearing Transcript, ROA, Vol. III, at 934-35, 952-58. Here, as in In re Integra II, 354 F.3d at 1269, the district court was “aware of all the issues that Non-Settling Defendants now argue should have been considered when determining the settlement’s fairness,” particularly in light of the parties’ extensive briefing on those issues.

Given the district court’s obligation to analyze the settlement and ensure its fairness towards all parties involved — not just Non-Settling Defendants — the district court’s analysis of Non-Settling Defendants’ objections in two-and-a-half pages of a twelve-page opinion was reasonable. See Linney v. Cellular Alaska P'ship, 151 F.3d 1234, 1243 (9th Cir.1998) (holding that the district court appropriately “outlined ... objections, gave his responses, and stated why he believed the settlement to be fair, *1296reasonable, and adequate in a 16-page Order and a 7-page Judgment”). Even if the district court’s adoption of Qwest’s Reply-Brief for its “reasons stated, arguments advanced, and authorities cited,” Dist. Ct. Order, ROA, Vol. Ill, at 1004, was more cursory than we might prefer, the referenced Reply Brief nevertheless contained appropriate legal and factual support for the district court’s conclusions and analysis, and we can adequately discern the basis for the district court’s decision. See Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 437, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968) (“If, indeed, the record contained adequate facts to support the decision of the trial court to approve the proposed compromises, a reviewing court would be properly reluctant to attack that action solely because the court failed adequately to set forth its reasons or the evidence on which they were based.”).

Moreover, the record on appeal contains all of the briefs that the parties submitted to the district court, as well as the transcript of the hearing in front of the district court and the decision of the district court — not to mention a fresh set of briefs totaling almost 200 pages. Given the detail of this record and the district court’s specific adoption of the reasoning and authorities cited in Qwest’s Reply Brief as its ruling, we have very little difficulty in framing the issues at hand or in discerning the district court’s rulings on those issues. Vacating and remanding, simply to force the district court to combine all of its reasoning and support into one document, would create needless delay in a case that is already over six years old.

The majority relies almost entirely on the Eleventh Circuit’s decision in AAL High Yield Bond Fund v. Deloitte & Touche LLP, 361 F.3d 1305, 1312 (11th Cir.2004), in which the court vacated a bar order in a securities litigation settlement and remanded for “the assistance of the district court’s full consideration and discussion of all of the relevant facts of the instant case and a full discussion of the relevant persuasive authorities and the underlying reasons and policies justifying whatever order the district court ultimately approves.” Admittedly, AAL High Yield Bond Fund provides support for vacating and remanding to the district court. However, the district court in AAL High Yield Bond Fund appears to have undertaken less analysis than the district court did here, and the issues in the instant case are appropriately framed and defined for appeal. Moreover, as explained supra, our own decision in In re Integra II is controlling here and strongly favors our accepting the district court’s ruling for review without requiring further explication, the Eleventh Circuit’s decision notwithstanding.

. The first Contractual Provision provides, in relevant part:

To the extent (but only to the extent) not covered by the Reform Act Bar Order and/or the Complete Bar Order, the Lead Plaintiffs, on behalf of themselves and the Class, further agree that they will reduce or credit any settlement or judgment (up to the amount of such settlement or judgment) they may obtain against a Non-Settling Defendant by an amount equal to the amount of any settlement or final, non-appealable judgment that a Non-Settling Defendant may obtain against any of the Released Persons based upon, arising out of, relating to, or in connection with the Released Claims or the subject matter thereof. In the event that a settlement is *1292reached between Lead Plaintiffs or the Class and a Non-Settling Defendant, or final judgment is entered in favor of Lead Plaintiffs or the Class against a Non-Settling Defendant before the resolution of that Non-Settling Defendant's potential claims against any Released Person, any funds collected on account of such settlement or judgment shall not be distributed, but shall be retained by the Escrow Agent pending the resolution of any potential claim by the Non-Settling Defendant ... against such Released Person(s) as provided in Paragraphs 11.3 and 11.4 of this Stipulation.... Inclusion of this Paragraph 11.3 in the Judgment is material to Settling Defendants' decision to participate in this Stipulation.

Stip. of Partial Settlement, ROA, Vol. III, at 1091-92, ¶ 11.3.

. The full language of the second Contractual Provision reads:

The Class will not settle any claim or judgment against a Non-Settling Defendant without obtaining from the Non-Settling Defendant the release of any and all claims the Non-Settling Defendant may have against any of the Released Persons based upon, arising out of, relating to or in connection with the Released Claims or the subject matter thereof, provided that each Settling Defendant shall execute and provide to the Non-Settling Defendant a release in a form that is satisfactory both to the Settling Defendants and the Non-Settling Defendant. Inclusion of this Paragraph 11.4 in the Judgment is material to Settling Defendants’ decision to participate in this Stipulation.

Stip. of Partial Settlement, ROA, Vol. Ill, at 1092, ¶ 11.4.

. Indeed, it is ironic that the majority has to go through such lengths to distinguish the facts of Agretti, (Majority Op. at 1289-90 n. 3), considering that the majority relies upon Agretti verbatim for its legal standard. Compounding the error, the majority’s attempt to distinguish Agretti ends up being nothing more than "a distinction without a difference.”

. The majority is incorrect that the district court never read or considered Non-Settling Defendants’ Supplemental Brief. At the fairness hearing, which occurred after Non-Settling Defendants submitted their Supplemental Brief, the district court instructed the parties that their "papers” had been “carefully read and considered by the court, and its most competent and able staff.” Hearing Transcript, ROA, Vol. Ill, at 939. To be fair, the district court did not say, "I have read your Supplemental Brief,” but we usually do not require a district court to provide such an explicit acknowledgment of a party’s submission to the court.