concurring:
I concur fully in Judge Smith’s opinion. I write separately to address Judge Rymer’s argument in dissent that under the terms of the Confidential Settlement Agreement and Release, Narouz agreed to release Charter from all claims arising out of Narouz’s employment if the “Court does not approve the terms of the representative and class action ... and does not enter an order approving the distribution of funds for the class ...” Consequently, she argues that Narouz lacks standing and that the appeal is moot.
Unlike Judge Rymer, I do not read this language as a waiver of Narouz’s right to appeal from a denial of the approval of the terms of the representative and class action settlement. Particularly apposite here is Bhattacharya v. Copple, 898 F.2d 766 (10th Cir.1990) (per curiam). The case involved a settlement of a medical malpractice action. The settlement agreement, which resolved the claims between the parties, included a provision for the award of attorneys’ fees in the amount of $450,000. The clause relating to the attorneys’ fees provided that the “determination of reasonableness of the fees will be made by the Court and the [Kansas Health Care Stabilization] Fund will be entitled to any reduction by the Court of the fee.” Id. at 768. This reflected the fact that, under Kansas law, the approval of the court was required for both the settlement agreement and the award of attorneys’ fees. Id. at 767.
The settlement agreement was submitted to the district court for approval. Ultimately, an order “designated Journal Entry of Dismissal with Prejudice and Approval of Settlement Agreement” was entered. The order “(1) approved the settlement agreement as to the benefits paid plaintiffs, (2) reserved for further ruling the ‘setting and approval’ of the attorneys’ fees to be paid pursuant to the agreement, and (3) dismissed the action with prejudice.” Id. at 768. After a hearing on the issue of attorneys’ fees, the district court awarded less than the $450,000 to which the parties agreed. The plaintiffs appealed. Relying on authority supporting the proposition that an order voluntarily dismissing an action pursuant to a settlement agreement is not appealable, the defendants moved to dismiss the appeal. In holding that the order awarding counsel fees was appealable, the Court of Appeals for the Tenth Circuit held that the settlement agreement had to be interpreted in light of Kansas law which empowers a court to approve or disapprove any attorneys’ fees paid by a litigant in a malpractice action. “Obviously,” it continued, “if a court disapproves ... of the amount of *1268attorneys’ fees to be paid by a litigant, that is an adverse determination which is reviewable.” Id. at 768-69.
We simply are not persuaded that the attorneys’ fees provision of the settlement agreement contains any expression of intent to convert the district court into an arbitrator or umpire whose determination with respect to attorneys’ fees was agreed to in advance by the parties. Instead, the settlement agreement recognized the independent determination the district court was required to make under § 7-121b. The determination ultimately made was adverse to plaintiffs’ attorneys. Under these circumstances, there is an appealable judgment, and the merits of the arguments raised by plaintiffs’ attorneys will be reached on appeal.
Id. at 769.
This reasoning is equally applicable here. Rule 23 requires that settlement of a class action be submitted to the district court for its approval. Fed.R.Civ.P. 23(e). The decision of the district court here was adverse to Narouz and to the class he represented. The language of the release clause at issue does not contain any expression of an intent to confer unreviewable discretion on the district court with respect to this issue. Nor do I see any reason of policy for holding that Narouz was required to “reserve any right to appeal an adverse determination of certification, the terms of the class, or class settlement.” Dissent at 1271. On the contrary, in the course of holding that an order denying class certification was not an appealable order, the Supreme Court observed that such an order “is subject to effective review after final judgment at the behest of the named plaintiff or intervening class members.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). The equivalent of a final judgment has been entered in this case. Majority at 1267 n.l. Under these circumstances, only an explicit waiver of the right to appeal would deny Narouz the opportunity to appeal the adverse judgment by the district court.