dissenting in part; concurring in part.
While agreeing that the appeal of Hab-shey (section IIB) must be dismissed, I respectfully dissent from the denial of the motion to dismiss the Shores appeal (section IIA). Love v. Turlington, 733 F.2d 1562 (11th Cir.1984), simply does not say or stand for the proposition set forth by the majority.
In the settlement of Love’s individual claim, the parties discussed the fact that the ruling denying class certification would be appealed and the defendants agreed not to contest such. Id. at 1564. As the text of the opinion explains, Love had two claims: (1) one on behalf of herself individually and (2) one on behalf of an alleged class. She settled the first but not the second.
Dorse v. Armstrong World Industries, Inc. 798 F.2d 1372 (11th Cir.1986), likewise offers no guidance or controlling authority since our court specifically found that “[t]he stipulation for judgment ... expressly recognized Eagle-Picher’s intent to appeal ... [as to] the government contract defense ...” 798 F.2d at 1376. Although the majority cites Roper, no mention is made of the fact that in that case the judgment appealed was entered over the objection of the plaintiff/appellant. As noted by the majority, Geraghty does not address the question.
*1496In this matter the defendants made an offer of judgment to Shores. Shores accepted the offer and judgment was entered. There was no attempt made by Shores to reserve any rights whatsoever concerning the alleged class action. Unlike Roper, Shores voluntarily accepted the offer of judgment. The case was over and closed!
As stated in Dorse, 798 F.2d at 1375: Where the parties have agreed to entry of an order or judgment without any reservation relevant to the issue sought to be appealed, one party may not later seek to upset the judgment, unless lack of “actual consent” or a failure of subject matter jurisdiction is alleged, (citations omitted)
In my opinion the ruling by the majority is directly contrary to the language and spirit of Fed.R.Civ.P. 68 and renders it a nullity.
Although I would not reach the other issues presented, I continue to be concerned about the “fraud on the market” theory, see Ross v. Bank South, N.A., 837 F.2d 980, 1009 (11th Cir.1988) (Fay, J., concurring), and hope our court will consider it en banc.
I would dismiss both appeals.