concurring:
I concur in Judge Jacobs’s thoughtful opinion. I write separately, however, to note another, perhaps deeper, problem with the settlement. Under its terms, one class of Plaintiffs accepts substantial payments from the Defendants, in return for which they compel Plaintiffs in another class, who receive no part of the Defendants’ payments, to give up forever their potentially valid claims, without ever having an opportunity to reject the settlement by opting out of the class. Opinions of the Supreme Court directly hold that this arrangement violates the due process rights of those compelled to surrender their claims for money damages.
Representatives brought this class action on behalf of approximately 12 million merchants against Visa and MasterCard, alleging that a number of the Defendants’ practices violate the antitrust laws, and seeking both damages for past injury and an injunction barring future violations. Eventually, the Defendants reached a proposed settlement with the Representatives. The settlement provides that the Defendants would pay approximately $ 7.25 billion to compensate merchants for damages suffered up to November 28, 2012 (when *241the district court granted preliminary approval of the settlement). The settlement also entails a commitment by the Defendants, enforced by injunction, to abandon some (not all) of their challenged practices for nine years — until July 20, 2021. The Defendants would be free after that date' to resume the practices they temporarily abandoned and would also be free from the outset to continue forever the challenged practices they did not agree to abandon. In return for what the Defendants gave up, a class consisting of all merchants that would ever in the future accept Visa and MasterCard is compelled to release forever the Defendants from any and all claims for past or future conduct (other than the conduct enjoined) that relate in any way to any of Defendants’ practices that are alleged or could have been alleged in the suit. While I do not speculate on the merits of the Plaintiffs’ claims, the fact that the Defendants were willing to pay $7.25 billion, apparently the largest antitrust cash settlement in history, suggests that the claims were not entirely devoid of merit.
What is particularly troublesome is that the broad release of the Defendants binds not only members of the Plaintiff class who receive compensation as part of the deal, but also binds in perpetuity, without opportunity to reject the settlement, all merchants who in the future will accept Visa and MasterCard, including those not yet in existence, who will never receive any part of the money. This is not a settlement; it is a confiscation. No merchants operating from November 28, 2012, until the end of time will ever be allowed to sue the Defendants, either for damages or for an injunction, complaining of any conduct (other than that enjoined) that could have been alleged in the present suit. The future merchants are barred by the court’s adoption of the terms of the settlement from suing for relief from allegedly illegal conduct, although they have no ability to elect not to be bound by it. One class of Plaintiffs receives money as compensation for the Defendants’ arguable past violations, and in return gives up the future rights of others. The Supreme Court has addressed such circumstances and ruled that an adjudication coming to this result is impermissible.
In Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985), the Supreme Court reasoned that a claim for money damages — a “chose in action” — is “a constitutionally recognized property interest possessed by each of the plaintiffs” whose claims are represented in a class action. Id. at 807, 105 S.Ct. 2965. In order for a court “to bind an absent plaintiff concerning a claim for money damages or similar relief at law, it must provide minimal procedural due process protection .... [D]ue process requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the class....” Id. at 811-12, 105 S.Ct. 2965. That opportunity was lacking here.
Following Shutts, the Court unanimously held in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2557, 180 L.Ed.2d 374 (2011), that claims for monetary relief cannot be certified under Rule 23(b)(2), as here, because of the possibility that “individual class members’ compensatory-damages claims would be precluded by litigation they had no power to hold themselves apart from.” Id. at 2559 (emphasis added). Dukes did not involve a settlement agreement, but that does not make its precedent any less applicable to this case. If a class may not even be certified because of the risk that adjudication of its rights might violate the due process rights of its members by forcibly depriving them of claims, then necessarily an adjudication of a class’s rights that in *242fact forcibly deprives the members of their claims is also unacceptable. Because the terms of this settlement preclude all future merchants that will accept the Defendants’ cards (the (b)(2) class) from bringing claims without their having had an opportunity to opt out (or even object), the Supreme Court’s rulings in Shutts and Dukes make clear that a court cannot accept it.
The practical effects of this settlement underscore why this is so. Although no court will ever have ruled that the Defendants’ practices are lawful, no person or entity will ever have the legal right to sue to challenge those practices, and no person or entity, past, present, or future has had or will have the opportunity to refuse to be a part of the class so bound. For this reason, as well as those noted in Judge Jacobs’s opinion, we must reject the settlement.