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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 11, 2024
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
SHIELDS LAW GROUP, LLC; PAUL
BYRD LAW FIRM, PLLC,
Attorneys - Appellants,
v. No. 21-3021
STUEVE SIEGEL HANSON LLP;
GUSTAFSON GLUEK, PLLC; WATTS
GUERRA LLP; HENINGER GARRISON
DAVIS, LLC; SEEGER WEISS LLP;
SHAMBERG JOHNSON & BERGMAN;
WEXLER WALLACE LLP; CARELLA
BYRNE CECCHI OLSTEIN BRODY &
AGNELLO, P.C.; CLARK, LOVE &
HUTSON, GP; HARE, WYNN, NEWELL
& NEWTON, LLP,
Attorneys - Appellees.
–––––––––––––––––––––––––––––––––––
HOSSLEY-EMBRY, LLP,
Attorney - Appellant,
v. No. 21-3022
STUEVE SIEGEL HANSON LLP;
GUSTAFSON GLUEK PLLC; WATTS
GUERRA LLP; HENINGER GARRISON
DAVIS, LLC; SEEGER WEISS LLP;
SHAMBERG JOHNSON & BERGMAN;
WEXLER WALLACE LLP; CARELLA
BYRNE CECCHI OLSTEIN BRODY &
AGNELLO, P.C.; CLARK, LOVE &
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HUTSON, GP; HARE, WYNN, NEWELL
& NEWTON, LLP,
Attorneys - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:14-MD-02591-JWL-JPO)
_________________________________
Submitted on the motions:*
Jeffrey A. Lamken and Eric R. Nitz, Mololamken LLP, Washington, D.C., on the motion
to dismiss for Watts Guerra, LLP.
Patrick J. Stueve and Bradley T. Wilders, Stueve Siegel Hanson LLP, Kansas City
Missouri, Christopher A. Seeger, Seeger Weiss LLP Ridgefield Park, New Jersey, Daniel
E. Gustafson, Gustafson Gluek PLLC, Minneapolis, Minnesota, on the motion to dismiss
for Settlement Class Counsel.
Christopher B. Hood, Heninger Garrison Davis, LLC, Birmingham, Alabama, on the
response in support of motions to dismiss for Heninger Garrison Davis, LLC.
Christina J. Nielsen, Nielsen Law Firm, Lorain, Ohio for Shields Law Group, LLC, and
Paul Byrd Law Firm, PLLC, and Daniel Allen Hossley, Tyler, Texas for Hossley-Embry,
LLP, on the Joint Suggestions in Opposition to Appellees’ Motions to Dismiss.
_________________________________
Before HOLMES, Chief Judge, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
HOLMES, Chief Judge.
_________________________________
*
After examining the motions to dismiss, the responses, and appellate
record, this panel has determined unanimously that oral argument would not
materially assist in the determination of this appeal. See FED. R. APP. P. 34(a)(2);
10TH CIR. R. 34.1(G). These cases are therefore ordered submitted without oral
argument.
2
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After Syngenta AG (“Syngenta”), an agricultural company, commercialized
and released genetically modified corn seeds without obtaining regulatory approval
for its seeds to be imported into China, thousands of corn producers (as well as others
in the corn industry) filed lawsuits against Syngenta. Ultimately, in 2018, Syngenta
settled with class action plaintiffs for $1.51 billion. Out of that $1.51 billion, one-
third of the total amount—$503,333,333.33—was set aside as attorneys’ fees. But
that was only the beginning of a different litigation saga that has now spanned years:
litigation over the apportionment and allocation of the $503 million in attorneys’
fees.
The district court, with the aid of a special master, crafted a two-stage
approach to allocating the $503 million. At the first stage, the $503 million was
divided into four pools: 49% for the common benefit pool for firms that litigated in
Kansas, 23.5% for the common benefit pool for firms that litigated in Minnesota,
15.5% for the common benefit pool for firms that litigated in Illinois, and 12% for
the pool for individually retained private attorneys (“IRPAs”). At the second stage,
the money was awarded to individual firms and attorneys within each pool. Through
a series of separate orders, the district court allocated most of these fees.
Participating law firms from a variety of states challenged this allocation
scheme on multiple levels, and various firms filed a tidal wave of appeals and cross-
appeals from the district court’s orders. On February 28, 2023, we resolved most of
the pending appeals related to the allocation of attorneys’ fees in In re Syngenta AG
MIR 162 Corn Litigation (“In re Syngenta I”), 61 F.4th 1126 (10th Cir. 2023).
3
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Specifically, we concluded that the district court acted within its discretion in
devising the four-pool allocation system, determining the amount to be allocated to
each pool, awarding money to firms in the three geographic common benefit pools,
and making an award of expenses. See id. at 1170. However, our opinion in In re
Syngenta I did not fully resolve every appeal related to the allocation of attorneys’
fees; some remain pending.
Among the appeals that remain pending are what we will refer to as the Watts
Guerra Settlement Appeals. In these appeals, two sets of firms challenge the district
court’s approval of a discrete settlement agreement (“the Watts Guerra Settlement
Agreement”) between Watts Guerra LLP—one of the firms that originally challenged
the district court’s fee allocation orders—and the firms who were not appealing the
district court’s fee allocation orders (“the Appellee Parties”).1
1
The terminology for the appellees in the Watts Guerra Settlement
Appeals can be confusing. In particular, differently named—but overlapping in
membership—groups of appellees have played distinct roles in these appeals and in
the proceedings before the district court. One group of appellees are the “Joint
Appellees,” which consist of several leadership firms and attorneys that defended the
district court’s decisions in the earlier In re Syngenta I fee allocation appeals. See 61
F.4th at 1138 n.1 (listing the Joint Appellees). And another subset of appellees is
“Settlement Class Counsel,” which includes attorneys Patrick Stueve, Daniel
Gustafson, and Christopher Seeger. See Settlement Class Counsel’s Mot. to Dismiss,
Nos. 21-3021 et al., at *1 (10th Cir., filed Feb. 17, 2021) (defining “Settlement Class
Counsel”). In the interest of precision, we use these terms as the appellees
themselves use them and remain faithful to their usage.
We also use the term “Appellee Parties.” For purposes of this opinion, that
term has the same meaning as that term is defined in the Watts Guerra Settlement
Agreement—to refer to Patrick Stueve and Daniel Gustafson on behalf of themselves
and all of the firms and attorneys who received money from the Kansas and
Minnesota Common Benefit Pools who did not appeal the district court’s fee
4
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The two sets of firms also challenge the district court’s disbursement of funds
in a manner that incorporated the terms of the Watts Guerra Settlement Agreement.
The first appeal, numbered 21-3021, is brought by Shields Law Group, LLC,
Plaintiffs’ Counsel, and Paul Byrd Law Firm, PLLC, Plaintiffs’ Counsel
(collectively, “Byrd/Shields”).2 The second appeal, numbered 21-3022, is brought by
Hossley-Embry LLP. The two appeals present identical legal issues, and we will
refer to Byrd/Shields and Hossley-Embry collectively as “the Objecting Firms.”
Watts Guerra and Settlement Class Counsel, see supra note 1, moved to
dismiss the Watts Guerra Settlement Appeals, arguing that we lack jurisdiction.
Shortly thereafter, we abated the Watts Guerra Settlement Appeals. After we issued
our opinion in In re Syngenta I, the Objecting Firms moved to lift the abatement and
enter a scheduling order. Watts Guerra and the Joint Appellees, see supra note 1,
oppose this request, arguing that while the abatement should be lifted, the appeals
should be summarily dismissed for the reasons stated in the earlier motions to
dismiss.
allocation orders, as well as Lew Garrison on behalf of himself and Heninger
Garrison Davis LLC. See Watts Guerra Settlement Agreement, Ex. A. to Jt. Mot. for
Indicative Ruling, No. 2:14-md-02591-JWL, ECF No. 4485-1, at *1–2 (D. Kan., filed
Nov. 3, 2020) (defining “Appellee Parties”). Again, there is substantial overlap
between the attorneys and firms who make up the Appellee Parties, the Joint
Appellees, and Settlement Class Counsel.
2
Paul Byrd Law Firm, PLLC Plaintiffs’ Counsel consists of Paul Byrd, of
the Paul Byrd Law Firm, PLLC; Clark W. Mason, of the Clark Mason Attorneys;
Jerry Kelly, of the Kelly Law Firm, P.A.; James J. Thompson, Jr.; and Nolan
Awbrey, of Awbrey Law.
5
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For the reasons that follow, we agree with the Joint Appellees and Watts
Guerra. We thus lift the abatement of the Watts Guerra Settlement Appeals (Nos.
21-3021 and 21-3022), grant Settlement Class Counsel’s and Watts Guerra’s
motions to dismiss these appeals for lack of subject-matter jurisdiction, and dismiss
the appeals.3
I. BACKGROUND
We described the long and complex background of the attorneys’ fees dispute
in In re Syngenta I. See 61 F.4th at 1138–70. We thus confine our discussion of the
background to only the broad strokes and the events necessary to understanding the
Watts Guerra Settlement Appeals.4
A. The Historic Settlement
Syngenta is an agricultural company that marketed and commercialized
genetically modified corn seed products, Agrisure Viptera and Agrisure Duracade,
3
As articulated in more detail below, see infra Part III, with respect to
the Objecting Firms’ motion to lift the abatement and enter a scheduling order, we
(1) grant it in part to the extent that it requests that we lift the abatement of the
Watts Guerra Settlement Appeals; (2) deny it in part (as moot) to the extent that it
requests that we enter a scheduling order in the Watts Guerra Settlement Appeals;
and (3) defer ruling on it in part insofar as it requests that we take any action on the
IRPA Pool Allocation Appeals (Nos. 21-3110 and 21-3111). We take no action on
any aspect of the IRPA Pool Allocation Appeals or the Contingent Cross-Appeal.
4
In addition to the discussion of the background in In re Syngenta I, 61
F.4th at 1138–70, we take judicial notice of documents appearing on the district
court’s docket and on our own docket. See FED. R. EVID. 201; Bunn v. Perdue, 966
F.3d 1094, 1096 n.4 (10th Cir. 2020); United States v. Mendoza, 698 F.3d 1303, 1307
(10th Cir. 2012); see also Griffin v. United States, 109 F.3d 1217, 1218 n.1 (7th Cir.
1997).
6
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and allowed them to be imported into China without obtaining China’s regulatory
approval to do so. When China discovered the genetically modified seeds in
American import shipments, China closed its markets to American corn, which led to
a fall in corn prices and financial injury to corn farmers and producers. As a result,
corn farmers and producers filed thousands of lawsuits against Syngenta in multiple
jurisdictions—including class actions, mass tort actions, and individual actions.5
The Judicial Panel on Multidistrict Litigation consolidated hundreds of these
suits into a multi-district litigation (“MDL”) in Kansas federal court; additionally,
thousands of suits were consolidated in a Minnesota state court, and other suits were
litigated in Illinois federal court. The Kansas district court (hereinafter referred to as
“the district court”) appointed several attorneys as co-lead counsel for the Kansas
MDL (“Kansas Co-Lead Counsel”); these attorneys would play a substantial role in
the development of the original litigation and the fees dispute.6 In Minnesota, the
5
Completely separate from the fee dispute at issue here, a number of corn
producers sued Watts Guerra—their lawyers—for failing to disclose the benefits of
participating as class members rather than as individual plaintiffs. See Kellogg v.
Watts Guerra LLP, 41 F.4th 1246, 1252 (10th Cir. 2022). The district court
dismissed all of the producers’ claims against Watts Guerra, concluding, among other
things, that the producers had not suffered an economic injury because they were
permitted to participate in the Syngenta settlement. See id. We affirmed the district
court’s judgment (and concluded that we lacked appellate jurisdiction over some of
the decisions that the producers purported to challenge). See id. at 1271.
6
These included attorneys from Stueve Siegel Hanson, LLP; Gray, Ritter,
& Graham, P.C.; Hare Wynn Newell & Newton L.L.P.; and Gray Reed & McGraw
P.C.
7
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firms involved in coordinating the litigation included Watts Guerra and the Paul Byrd
Law Firm, PLLC of Byrd/Shields.
After a jury trial in Kansas resulted in a substantial award for the Kansas class,
Syngenta expressed interest in pursuing a global settlement. In February 2018,
Syngenta and a class of corn producers reached a nationwide settlement agreement
that resolved the claims against Syngenta. As part of the settlement, Syngenta agreed
to pay $1.51 billion in exchange for the release of all claims arising out of the
debacle over the genetically modified seeds. The district court preliminarily
approved the settlement, and, in an order issued on December 7, 2018 (“the
December 2018 Aggregate Fee Order”), it finalized its approval of the settlement and
awarded one-third of the total settlement amount ($503,333,333.33) as attorneys’
fees. See Jt. App., Vol. XXII, at 5088–89 (Dist. Ct. Mem. & Order, filed Dec. 7,
2018). But the question of how to allocate that sum among the myriad firms involved
in the litigation remained.7
B. The Four Pool System for Allocation of Attorneys’ Fees
1. The December 2018 Fee Allocation Order
On November 21, 2018, the special master issued a report and
recommendation that, among other things, set forth a detailed recommendation for
7
A number of corn producers challenged the district court’s approval of
the Settlement Agreement and the division of the $503 million award between the
producers (who received two-thirds) and their attorneys (who received one-third).
However, the corn producers ultimately settled, and their appeals were dismissed.
8
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how to allocate the $503 million. Various firms, including the Objecting Firms, filed
objections to the report and recommendation.
On December 31, 2018, the district court issued a fee allocation order (“the
December 2018 Fee Allocation Order”) that largely accepted the special master’s
recommendation. See Jt. App., Vol. XXIII, at 5348–49 (Dist. Ct. Mem. & Order,
filed Dec. 31, 2018). Based on the recommendation of the special master, the district
court ultimately created a four-pool allocation scheme to divide the $503 million.8
This four-pool allocation system is critical to understanding the instant appeals.
To begin, three “common benefit pools” were created, corresponding with the
litigation in Kansas, Minnesota, and Illinois, which we refer to as the Kansas
Common Benefit Pool, the Minnesota Common Benefit Pool, and the Illinois
Common Benefit Pool, respectively. For these three pools, each attorney was placed
in the pool corresponding to the state in which they performed the bulk of their work.
Each attorney could seek a fee award from their designated pool for any work they
performed that benefited the settlement class as a whole or the settlement negotiation
process (referred to as common benefit work)—regardless of where that work was
actually performed.
The fourth pool, the IRPA Pool, was different. That pool was designed so that
attorneys could receive a portion of the $503 million for work that they performed
that did not benefit the class as a whole—in other words, for work that was done on
8
The district court also awarded $48,842,866.12 in expenses in addition
to the $503 million award of attorneys fees.
9
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behalf of individual clients. For the IRPA Pool, “attorneys’ recoveries would be
dictated by their clients’ claim recoveries from the Settlement” with Syngenta. In re
Syngenta I, 61 F.4th at 1141. Thus, the amount received by each attorney in the
IRPA pool would be proportionate to the amount that their corn producer clients
received as part of the Syngenta settlement. Attorneys could recover fees both from
one of the common benefit pools (for any work that benefitted the common good)
and from the IRPA pool (for any work that did not benefit the common good).
To effectuate this four-pool allocation scheme, the district court had to
confront the reality that existing fee agreements were already in place.
Consequently, the district court abrogated (1) existing contingent fee agreements
between corn producer clients and their attorneys and (2) joint prosecution
agreements between various attorneys.
In terms of apportionment between the pools, after weighing the contributions
of the attorneys in the various fora and the work done by the IRPAs, the district court
allocated (1) 49% of the total fee award to the Kansas Common Benefit Pool; (2)
23.5% to the Minnesota Common Benefit Pool; (3) 15.5% to the Illinois Common
Benefit Pool; and (4) 12% to the IRPA pool.9
9
These percentages were slightly different from those originally
recommended by the special master in her report and recommendation, to which a
number of firms objected. Specifically, the special master originally recommended
(1) 50% for the Kansas Common Benefit Pool; (2) 24% for the Minnesota Common
Benefit Pool; (3) 16% for the Illinois Common Benefit Pool; and (4) 10% for the
IRPA Pool. In recognition of the substantial time put in by the IRPAs, the district
court increased the portion of the total allocated to IRPAs and, by extension, slightly
decreased the portion allocated to the other pools.
10
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2. Allocation Within the Common Benefit Pools
After the issuance of the December 2018 Fee Allocation Order, the next
question was how to allocate each pool’s share of the $503 million within that pool.
For example, the 49% of the $503 million award—which totaled to
$246,633,333.33—had to be allocated among the various firms in the Kansas
Common Benefit Pool. To do this, the district court (which was located in Kansas)
would allocate the funds in the Kansas Common Benefit Pool. Courts in Minnesota
and Illinois would recommend how to allocate the funds in the Minnesota Common
Benefit Pool and the Illinois Common Benefit Pool, respectively, and the district
court would give great deference to those recommendations—though it retained the
official power to allocate fees in those pools.
As discussed below, the district court issued separate orders allocating
attorneys’ fees within the Kansas Common Benefit Pool, the Minnesota Common
Benefit Pool, and the Illinois Common Benefit Pool. Additionally, the district court
entered an order making awards of expenses. Importantly, though, the district court
did not actually disburse any of the funds it awarded in these orders; the awarded
funds remained in escrow after the awards were made.
With respect to the Kansas Common Benefit Pool, the district court issued an
order on March 20, 2019 (“the March 2019 Kansas Pool Order”) accepting a
recommended system of allocation prepared by Kansas Co-Lead Counsel. See Jt.
App., Vol. XXV, at 5859 (Dist. Ct. Order on Kan. Pool Allocation, filed Mar. 20,
2019). Two firms immediately filed notices of appeal of the March 2019 Kansas
11
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Pool Order. Specifically, Watts Guerra and another group of firms led by Weller,
Green, Toups & Terrell, LLP, and Richard L. Coffman, P.C. (“Toups/Coffman”) filed
notices of appeal with respect to this order.10 Additionally, a number of other firms,
including Hossley-Embry, named the March 2019 Kansas Pool Order as one of the
orders they were challenging in later-filed notices of appeal. Notably, some of these
firms recognized that these notices of appeal might be premature because a final
judgment had not yet been issued. For example, Watts Guerra noted that it
“recognize[d] that this notice of appeal may be premature . . . [because] the district
court’s fee allocation likely is not final for purposes of appeal, at least until the
district court has issued orders concerning the allocation of the Kansas, Illinois, and
Minnesota common-benefit pools.” Jt. App., Vol. XXVIII, at 6449–50 (Watts
Guerra’s Notice of Appeal, filed Apr. 19, 2019).
With respect to the Minnesota Common Benefit Pool, the Minnesota state
court issued an order on May 29, 2019, that recommended the adoption of (with some
modifications) the allocation methodology presented by Minnesota Co-Lead Counsel.
In an order dated July 16, 2019 (“the July 2019 Minnesota Pool Order”), the district
court adopted this approach over the objections of several firms, including
Byrd/Shields. See Jt. App., Vol. XXIX, at 6864–65 (Dist. Ct. Order on Minn. Pool
10
Both Toups/Coffman and Watts Guerra also raised challenges to the
earlier December 2018 Fee Allocation Order in their notices of appeal.
12
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Allocation, filed July 16, 2019). Byrd/Shields, among others, filed a notice of appeal
with respect to the July 2019 Minnesota Pool Order.11
With respect to the Illinois Common Benefit Pool, the federal court in Illinois
issued its recommended allocation in August 2019. In an order issued on November
19, 2019 (“the November 2019 Illinois Pool Order”), the district court adopted this
approach over the objections of multiple firms. See Jt. App., Vol. XXXII, at 7434–
35 (Dist. Ct. Order on Ill. Pool Allocation, filed Nov. 19, 2019). Several firms,
including Watts Guerra and Toups/Coffman, filed notices of appeal with respect to
this order.
In July 2019, the district court issued an order (“the July 2019 Expense
Order”) that—over the objection of Byrd/Shields—adopted the special master’s
report and recommendation concerning expense awards. See Jt. App., Vol. XXIX, at
6889 (Dist. Ct. Order on Expenses, filed July 19, 2019). Byrd/Shields filed a notice
of appeal challenging this order.12
11
Byrd/Shields’s notice of appeal also challenged the December 2018 Fee
Allocation Order and the March 2019 Kansas Pool Order.
12
Long after the relevant orders had issued, the Objecting Firms moved
for reconsideration of the district court’s December 2018 Fee Allocation Order and
its July 2019 Minnesota Pool Order. But the district court denied this request,
concluding that (1) it lacked jurisdiction to consider the motion for reconsideration
because the orders at issue had since been appealed, (2) even if the district court had
jurisdiction, it would deny the motions as untimely, and (3) the motions also failed
on their merits.
13
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We refer to the appeals taken from these orders—as well as appeals from the
district court’s December 2018 Fee Allocation Order and the December 2018
Aggregate Fee Order—as the “Fee Allocation Appeals.”13
3. Early History of the Fee Allocation Appeals
Initially, we abated the Fee Allocation Appeals. However, we lifted the
abatement on March 11, 2020—after expenses had been allocated and fees had been
allocated from the Kansas Common Benefit Pool, the Minnesota Common Benefit
Pool, and the Illinois Common Benefit Pool. After receiving copious briefs from the
parties, we held oral argument a year later, on March 10, 2021.
C. The Watts Guerra Settlement Agreement
As noted above, Watts Guerra, a Minnesota law firm that was heavily involved
in the litigation, was an appellant in the Fee Allocation Appeals. While these appeals
were pending, and after months of negotiations moderated by the Tenth Circuit Chief
Mediator, Watts Guerra and the Appellee Parties—the firms in the litigation who
were not appealing any orders (with the exception of contingent cross-appeals), see
supra note 1—reached an agreement to end the litigation over Watts Guerra’s fees.
See Jt. Mot. for Indicative Ruling, No. 2:14-md-02591-JWL, ECF No. 4485, at *4 (D.
Kan., filed Nov. 3, 2020). The settlement between the parties was memorialized in
the Watts Guerra Settlement Agreement. See Watts Guerra Settlement Agreement,
13
The Fee Allocation Appeals included Nos. 19-3008, 19-3022, 19-3032,
19-3079, 19-3174, 19-3175, 19-3176, 19-3178, 19-3279, 19-3280, 19-3284, and
20-3002.
14
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Ex. A. to Jt. Mot. for Indicative Ruling, No. 2:14-md-02591-JWL, ECF No. 4485-1,
at *1–2 (D. Kan., filed Nov. 3, 2020).
The Watts Guerra Settlement Agreement contemplated the modification of
some of the attorney fees’ apportionment that had been made in the December 2018
Fee Allocation Order, the March 2019 Kansas Pool Order, the July 2019 Minnesota
Pool Order, and the November 2019 Illinois Pool Order. Specifically, in exchange
for the release of its claims, Watts Guerra would receive an additional $7 million
“from the Appellee Parties’ share of the Aggregate Fee Award to be paid to Watts
[Guerra] from the Appellee Parties’ fees awarded from the Kansas, Minnesota, and
Illinois Common Benefit Pools.” Watts Guerra Settlement Agreement, ECF No.
4485-1, at *2.14
The Watts Guerra Settlement Agreement defined the “Appellee Parties” as (1)
Patrick Stueve on behalf of himself and all firms that were receiving fees from the
Kansas Common Benefit Pool, except those firms who were appealing the district
court’s fee allocation orders; (2) Daniel Gustafson on behalf of himself and all firms
that were receiving fees from the Minnesota Common Benefit Pool, except Watts
Guerra and those firms who were appealing the district court’s fee allocation orders;
and (3) Lew Garrison on behalf of himself and Henninger Garrison Davis LLC,
14
Originally, the Watts Guerra Settlement Agreement provided that Watts
Guerra would receive an additional $7.5 million from the Appellee Parties. The
settling parties later amended this amount to be $7,048,667, which is the $7 million
amount that we discuss here. The Watts Guerra Settlement Agreement also provided
that a sum from a separate settlement, the Mensik Settlement, would be transferred to
Watts Guerra.
15
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which received funds from the Illinois Common Benefit Pool. See id. at *1–2. Thus,
the additional $7 million to be added to Watts Guerra’s share of the $503 million
would be funded by decreases in the amount received by many other firms in the
common benefit pool except those firms that were appealing the district court’s fee
allocation orders—viz., Toups/Coffman, Hossley-Embry, and Byrd/Shields, among
others. With respect to the latter firms, their portions of the $503 million would be
unchanged.
Watts Guerra would be responsible for distributing the $7 million fee increase
to firms in the sub-group with which it had litigated. Moreover,
[f]or purposes of dividing the Fee Increase among members of the
Watts Guerra Group, Watts [Guerra] shall treat the Fee Increase as
if it were an award from the IRPA Pool; in other words, Watts
[Guerra] shall have the same rights and obligations to the Watts
Guerra Group with respect to the Fee Increase as Watts [Guerra]
already has with respect to its anticipated IRPA Pool award, for
which it petitioned on behalf of itself and the entire Watts Guerra
Group.
Id. at *3. Thus, although the $7 million would not actually become part of the IRPA
Pool, it would be treated as if it had been for purposes of distribution. In other
words, the $7 million reallocated to Watts Guerra would be distributed by Watts
Guerra to the other firms in the Watts Guerra Group in the same fashion that a lump
sum award from the IRPA Pool to Watts Guerra would be distributed.15
15
Distributing a lump sum award to their associated firms was one of the
responsibilities of the law firms, including Watts Guerra, who sought an award from
the IRPA Pool. In a report and recommendation issued by the special master—which
was later accepted by the district court—the special master observed that “many
IRPA Submissions were made by one IRPA Submitting Firm on behalf of itself and
16
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Several other aspects of the Watts Guerra Settlement Agreement bear
mentioning. First, the Watts Guerra Settlement Agreement provided that “Interested
Parties” would have the opportunity to object. See id. at *6. The Watts Guerra
Settlement Agreement defined “Interested Parties” as, in relevant part, “any . . .
person or entity with a purported interest in the Aggregate Fee Award [of $503
million], Expense Award, or Fee Allocation Orders.” Id. at *2. Thus, among others,
Toups/Coffman, Hossley-Embry, and Byrd/Shields qualify as “Interested Parties.”
Second, with respect to interest on the fee and expense awards, the Watts
Guerra Settlement Agreement provided:
The Settling Parties agree that any earned interest they believe they
are entitled to on their fee or expense awards under the [$503
million] Aggregate Fee Award may be used by the Appellee Parties
to resolve the appeals, and they agree that if any earned interest
remains after the Appellee Parties exhaust all settlement
discussions in connection with the Appeals, such earned interest
shall be allocated as determined by the MDL Court [i.e., the district
court] following briefing by the Parties.
other associated law firms,” so there were many instances in which one firm would
be responsible for distributing portions of their slice of the IRPA Pool to other firms.
See Suppl. Jt. App., Vol. I, at 54 (Special Master’s R&R on IRPA Pool Allocation,
filed May 14, 2021). The special master thus recommended requiring each group of
firms to certify in writing that they had reached agreement on how their portion of
the IRPA pool would be divided within that group. See id. (“Each IRPA Submitting
Firm and their co-counsel . . . must certify in writing . . . that they have reached
agreement regarding the appropriate allocation of the IRPA award with all co-counsel
and/or referring counsel on whose behalf the IRPA Submitting Firm made IRPA
Submissions.”). And in Watts Guerra’s revised petition for an award from the IRPA
pool, it noted that “the Court should calculate and make a single award to Watts
Guerra itself—with Watts Guerra responsible for dividing that award among itself
and its associate counsel consistent with fee-sharing provisions in the underlying fee
agreements.” Revised Pet. for IRPA Pool Award by Watts Guerra LLP, No. 2:14-
md-02591-JWL, ECF No. 4116, at *3 (D. Kan., filed Mar. 4, 2019).
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Id. at *2.
Third, the Watts Guerra Settlement Agreement included a “most favored
nation clause.” Pursuant to this clause, the Appellee Parties—which, again, did not
include Toups/Coffman, Hossley-Embry, or Byrd/Shields—agreed not to resolve any
of the other pending appeals for “an amount equal to or greater than the [$7 million]
Fee Increase, provided that, where multiple appeals were filed by the same
appellant(s), such appeals shall be treated as ‘one’ appeal.” Id. at *3. These pending
appeals included, inter alia, appeals of the December 2018 Fee Allocation Order, the
March 2019 Kansas Pool Order, the July 2019 Minnesota Pool Order, and the
November 2019 Illinois Pool Order filed by Toups/Coffman, Hossley-Embry, and
Byrd/Shields. See id. at *3 n.3.
Fourth, because the IRPA Pool allocation was still pending, the Watts Guerra
Settlement Agreement provided that “[a]ll Parties” would be “entitled to pursue their
pending petitions for an award from the IRPA Pool.” Id. at *3. This included the
right to appeal any IRPA Pool allocation orders, “provided that no Party is entitled to
argue that the aggregate IRPA Pool should be increased or reduced, or otherwise for
reversal or modification of the [District] Court’s prior Fee Allocation Orders.” Id.
The Watts Guerra Settlement Agreement was subject to several conditions
precedent, including that the Appellee Parties must receive authorization from their
own firms, Interested Parties must have an opportunity to object, and the district
court must agree to approve the agreement.
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D. The District Court’s Approval of the Watts Guerra Settlement Agreement
1. The Request for an Indicative Ruling
Recognizing that the district court lacked jurisdiction to modify its earlier fee
allocation orders because those orders had been appealed (and cross-appealed) by
various firms, Watts Guerra and the Appellee Parties moved for an indicative ruling
pursuant to Federal Rule of Civil Procedure 62.1.16 Specifically, they requested that
the district court make “an indicative ruling that the [District] Court would approve
the modifications to the fee allocation orders requested pursuant to the settlement,
upon remand from the Tenth Circuit for that purpose.” Jt. Mot. for an Indicative
Ruling, ECF No. 4485, at *2. According to the movants, they “request[ed] these
modifications to resolve their dispute, to avoid additional expense and delay, and in
furtherance of judicial economy.” Id. at *8.
Watts Guerra and the Joint Appellees requested that “the Fee Allocation
Orders be modified to increase the award of attorneys’ fees to Watts Guerra by a total
of $7,048,667.” Id. at *5. The motion described in detail how Watts Guerra’s fee
increase would be funded:
The Fee Increase shall be funded by a proposed reduction of the
Kansas Pool, the Minnesota Pool, and the [Heninger Garrison
Davis] fee award from the Illinois Pool in the following manner:
16
According to Federal Rule of Civil Procedure 62.1(a), “[i]f a timely
motion is made for relief that the court lacks authority to grant because of an appeal
that has been docketed and is pending, the court may” defer considering the motion,
deny the motion, or “state either that it would grant the motion if the court of appeals
remands for that purpose or that the motion raises a substantial issue.” And “[t]he
district court may decide the motion if the court of appeals remands for that
purpose.” FED. R. CIV. P. 62.1(c).
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(1) The Kansas Pool shall be reduced by $2,966,333.67, with
corresponding pro rata reductions to each of the Kansas Firms
(which by definition excludes the law firms awarded fees from the
Kansas Allocation that have appealed the Court’s Fee Allocation
Orders[] . . .). (2) The Minnesota Pool shall be reduced by
$1,582,333.33, with corresponding pro rata reductions to each of
the Minnesota Firms (which by definition excludes Watts Guerra
and the Watts Guerra Group as well as all other firms awarded fees
from the Minnesota Allocation that appealed the Court’s Fee
Allocation Orders[] . . .). And, (3) the [Heninger Garrison Davis]
fee award from the Illinois Pool shall be reduced by $2,500,00.00,
with the Illinois Pool reduced by that same amount to account for
this reduction in the [Heninger Garrison Davis] fee award.
Id. at *5–6. The movants repeatedly observed that the proposed modification would
not impact the share of the funds received by the firms who were otherwise appealing
the district court’s orders, including Toups/Coffman, Hossley-Embry, and
Byrd/Shields. See id. at *6 (“The Settling Parties propose no reductions to any firm
that has appealed the Fee Allocation Orders . . . .”); id. at *8–9 (“[T]he modification
would make no changes to the fee awards to the other firms who have appealed the
fee allocation. The Fee Increase thus does not impact the other law firms that have
appealed the Fee Allocation Orders.”).
Byrd/Shields and Hossley-Embry—which, again, we will at times refer to as
the Objecting Firms—filed a response in opposition to the motion for an indicative
ruling. See Byrd/Shields’s and Hossley-Embry’s Am. Objs. & Suggestions in Opp’n
to the Jt. Mot. for Indicative Ruling, No. 2:14-md-02591-JWL, ECF No. 4492, at *1
(D. Kan, filed Nov. 18, 2020). According to the Objecting Firms, Watts Guerra and
the Appellee Parties “reached a private settlement agreement to divvy up the
aggregate attorneys’ fee award and ask this Court to bless the private agreement by
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ordering money be shaved from each of the three jurisdictional pools and that money
handed over to Watts Guerra,” and the Objecting Firms urged the district court to
“decline this invitation.” Id. at *2. Primarily, the Objecting Firms argued that (1) the
Settlement Agreement would in fact generate additional litigation; (2) the request for
modification of the district court’s fee orders showed that the original four-pool
allocation was unreasonable; (3) the request for modification evinced backroom-
dealing that was a reason to set aside the earlier fee allocation orders; and (4) if it
approved the Watts Guerra Settlement Agreement, the district court would be
shirking its responsibility to closely scrutinize the fee award.
In reply, Watts Guerra and the Appellee Parties argued that the Watts Guerra
Settlement Agreement “has no financial impact on the fees [Byrd/Shields and
Hossley-Embry] will receive,” and that, as a result, those firms lacked standing to
object. Reply in Support of Jt. Mot. for Indicative Ruling, No. 2:14-md-02591-JWL,
ECF No. 4496, at *1–4 (D. Kan., filed Nov. 19, 2020) (citing Tennille v. W. Union
Co., 809 F.3d 555, 560 (10th Cir. 2015)). Additionally, Watts Guerra and the
Appellee Parties disputed the way that Byrd/Shields and Hossley-Embry had framed
the settlement, noting that the agreement “d[id] not request—and cannot support—
reconsideration of the entirety of . . . [the] award of attorneys’ fees.” Id. at *2. And
they argued that Byrd/Shields and Hossley-Embry had not provided adequate reasons
for the district court to reject the settlement.
The district court held a hearing on the motion for an indicative ruling on
December 11, 2020. See Minute Entry, No. 2:14-md-02591-JWL, ECF No. 4521 (D.
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Kan., entered Dec. 11, 2020). At the hearing, the district court noted its reluctance to
grant the motion for an indicative ruling, reasoning that if the settling parties were
requesting an actual reshuffling of the fee allocation award, the district court would
decline to do so because “the fee award was the result of a thorough and careful
process,” the award “was fair and reasonable,” and “[n]o basis has been presented . . .
by the movants here to find otherwise, and to modify the fee order that was
predicated on that finding.” Tr. of Mot. Hr’g, No. 2:14-md-02591-JWL, ECF No.
4526, at *5:6–10 (D. Kan., dated Dec. 11, 2020). But, on the other hand, the district
court noted, if this was simply a matter of “the parties want[ing] to resolve their
differences by a payment to Watts Guerra,” the district court did not object and
“nothing in the rules . . . would require court approval for such a settlement of the
appeal.” Id. at *5:11–15.
The district court then heard from the Appellee Parties, who noted that they
“[we]re not in any way seeking to modify the court’s prior finding[s]” regarding the
fee award. Id. at *5:19–20; see also id. at *6:16–17 (“[W]e tried to make clear in our
motion, we were not seeking in any way to call into question the appropriateness of
[the original fee allocation].”). But even though they were not seeking to actually
modify the prior fee allocation orders, the Appellee Parties and Watts Guerra wanted
to seek the district court’s approval of the Watts Guerra Settlement Agreement.
Although their reasons for doing so are not entirely pellucid, the reasons appeared to
be that (1) they believed it was required by Federal Rule of Civil Procedure 23(h); (2)
the Settlement Agreement involved the entire Watts Guerra group; (3) the standpoint
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of comity weighed in favor of it because some funds were being moved around; and
(4) the parties wanted an enforceable settlement agreement. When the district court
inquired as to whether it would be required to make findings of fact and conclusions
of law pursuant to Rule 23(h), the Appellee Parties responded that those findings
would be that “judicial efficiency” and “public policy” weighed in favor of resolving
Watts Guerra’s pending appeals by settlement. Id. at *7:14–25.
2. The December 2020 Indicative Ruling
On December 14, 2020, the district court entered an order (“the December
2020 Indicative Ruling”) overruling the Objecting Firms’ objections, granting the
motion for an indicative ruling, and noting that “[u]pon limited remand by the Tenth
Circuit, the Court will issue an order as proposed by movants.” Dist. Ct. Mem. &
Order, No. 2:14-md-02591-JWL, ECF No. 4524, at *1 (D. Kan., filed Dec. 14, 2020).
The district court reasoned that “[c]ourts always favor the settlement of disputes,”
and the Watts Guerra Settlement Agreement improves judicial economy because it
will “effectuate the resolution of all appeals involving Watts [Guerra].” Id. at *3. It
further noted that no party that would be actually affected opposed the Watts Guerra
Settlement Agreement.
The district court took pains to clarify, though, that it was not making a
substantive modification to its prior fee allocation orders:
The Court makes clear that, by this ruling and by its subsequent
order after remand, it is not modifying or reconsidering its findings
and conclusions regarding the reasonableness and propriety of the
method and amounts of [the] Court’s previous allocation of fees
among the four pools or its previous awards of fees from those
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pools. Movants have not challenged the reasonableness of the
prior allocation and awards, and the Court reaffirms those findings
and conclusions. By these present actions, the Court is only
intending to modify its prior orders to the extent necessary to
change the eventual distribution of money from the attorney fee
fund to particular law firms to give effect to the settlement
agreement between Watts [Guerra] and the other parties to the
contract. The Court is not intending to affect in any way its prior
awards to firms who are prosecuting appeals from the Court’s
allocation and award orders.
Id. at *3–4. The district court reiterated its doubt that it even needed to modify the
orders for the Watts Guerra Settlement Agreement to be consummated, because, after
all, “the other parties could simply agree to make payments to Watts [Guerra] after
they receive their fee awards from the common benefit pools.” Id. at *4. But the
district court noted that it was persuaded that “the requested rulings would serve the
interests of judicial economy” because “by altering at the front end the amounts
distributed by the appointed administrator overseeing the attorney fee fund, the Court
will allow the agreed redistribution of fees to be accomplished in the most efficient
manner, while decreasing the likelihood of later delays or disputes concerning the
payments.” Id.
The district court overruled Byrd/Shields’s and Hossley-Embry’s objections to
the Settlement Agreement. The district court first concluded that those firms “are not
included in the agreement . . . and their fee awards would not be affected in any way;
therefore, objectors have no interest in this issue, and thus they lack standing to
oppose the requested approval and modifications.” Id. at *2 (citing Tennille, 809
F.3d at 560). Additionally, the district court disagreed that the Watts Guerra
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Settlement Agreement called into question the reasonableness of the prior fee
allocation orders, observing that the “[m]ovants have not argued that the prior orders
were unreasonable or incorrect, and it is clear that the modifications to those orders
are requested only to effectuate the settlement with Watts [Guerra].” Id. at *2–3.
3. The January 2021 Settlement Order
In the wake of the December 2020 Indicative Ruling, Watts Guerra and the
Joint Appellees filed a motion in this Court requesting a limited remand so that the
district court could approve the settlement agreement.
The Objecting Firms and Toups/Coffman filed responses opposing the request
for a limited remand. The Objecting Firms also bootstrapped to their response a
request to resolve all of the pending Fee Allocation Appeals and vacate all of the
relevant fee allocation orders. In reply, the movants contended that the Objecting
Firms lacked standing to object and that they raised no actual argument against a
limited remand (or against approval of the Watts Guerra Settlement Agreement).
In a summary order, we granted the movants’ request and remanded all of
Watts Guerra’s pending appeals to the district court “for the limited purpose of
entering an order approving the settlement agreement between the Movants.” Order,
Nos. 19-3008 et al., at *1 (10th Cir., filed Jan. 4, 2021). We also denied the requests
made by the Objecting Firms to vacate all of the fee allocation orders.
On the following day, January 5, 2021, the district court issued an order (“the
January 2021 Settlement Order”) approving the Watts Guerra Settlement Agreement.
See Suppl. Jt. App., Vol. I, at 4 (Dist. Ct. Order Approving the Watts Guerra
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Settlement Agreement, filed Jan. 5, 2021). The district court’s order noted that it
“effects modification” of the December 2018 Fee Allocation Order, the March 2019
Kansas Pool Order, the July 2019 Minnesota Pool Order, and the November 2019
Illinois Pool Order in the limited manner set forth in the December 2020 Indicative
Ruling. Id. at 5.
Much of the January 2021 Settlement Order tracked the earlier December 2020
Indicative Ruling word-for-word. As an example, the district court again reiterated
that it was not substantively modifying its earlier fee allocation orders. See id. at 4
n.1 (“The Court reiterates that by this ruling it is not modifying or reconsidering its
findings and conclusions regarding the reasonableness and propriety of the method
and amounts of [the] Court’s previous allocation of fees among the four pools or its
previous awards of fees from those pools, and that the Court, for the sake of
efficiency, is only intending to modify its prior orders to the extent necessary to
change the eventual distribution of money from the attorney fee fund to particular
law firms to give effect to the settlement agreement.”).
D. The District Court’s Disbursement of Funds
1. The Request for Disbursement of Funds
While the motion for an indicative ruling was pending, Watts Guerra and
Settlement Class Counsel filed a motion requesting disbursement of most of the $503
million attorneys’ fees award. See Mot. for Disbursement of Funds, No. 2:14-md-
02591-JWL, ECF No. 4497, at *1, *5 (D. Kan., filed Nov. 20, 2020). Specifically,
the movants requested that the court disburse, minus a $30 million holdback, the
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amounts awarded to the recipient firms in the March 2019 Kansas Pool Order, the
July 2019 Minnesota Pool Order, and the November 2019 Illinois Pool Order. Under
the proposed disbursement, $30 million of the awards made in those orders would
remain held back in escrow. According to the movants, this $30 million holdback
was “more than any legitimate estimate of what” the parties challenging the various
fee allocation orders—including the Objecting Firms and Toups/Coffman—“[we]re
seeking through their appeals.” Id. at *4. This holdback seems to have been
proposed with the goal of streamlining the reallocation process in case any of those
parties prevailed on appeal. All of the law firms involved in the attorneys’ fees
dispute would receive the monies awarded to them by the fee allocation orders,
including the Objecting Firms. The requested disbursement also included the amount
awarded in the July 2019 Expense Order, though it did not include the funds
allocated to the IRPA Pool, which had not yet been awarded to specific firms.17
The disbursement request was contingent on approval of the Watts Guerra
Settlement Agreement and the resulting modifications to the earlier fee allocation
orders. See id. at *2 (“Subject to and provided the Court grants the requested
modifications pursuant to [the Watts Guerra] settlement agreement, Settlement Class
Counsel now seek an order for disbursement . . . .”). Thus, if the motion to disburse
was granted, the funds would be disbursed in a manner that comported with the Watts
17
The movants did request that when the IRPA pool was awarded, the
funds be disbursed within two weeks. Ultimately, the district court denied this
request without prejudice.
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Guerra Settlement Agreement. See id. at *5 (requesting that “the fees be distributed
in accordance with [the district court’s] Common Benefit Fee Awards, as modified
by the proposed order approving the settlement with Watts Guerra, reduced pro rata
to account for the $30 million holdback”). All told, the requested disbursement
amounted to $412,714,426.35—about eighty-two percent of the $503 million—along
with an additional $31 million in expenses.
2. The Objecting Firms’ Opposition
The Objecting Firms, as well as Toups/Coffman, opposed the distribution of
any funds while their appeals of the fee allocation orders were pending. Initially,
their briefing focused on the difficulty of clawing back the distributed funds if they
or the other firms were to prevail on their appeals of the fee allocation orders. After
the district court issued the December 2020 Indicative Ruling, the Objecting Firms
escalated their opposition to the request for disbursement. In addition to requesting
either supplemental briefing or a hearing on whether the district court lacked
jurisdiction, the Objecting Firms asked the district court to issue an order “staying
any ruling [on] the Motion for Disbursement of Funds . . . until the Tenth Circuit
Court of Appeals has issued a mandate in the appeals taken from this Court’s Orders
allocating attorneys’ fees and expenses.” Jt. Mot. to Stay, No. 2:14-md-02591-JWL,
ECF No. 4535, at *1 (D. Kan, filed Dec. 18, 2020).
In support of their motion to stay, the Objecting Firms argued that the
requested disbursement would include the changes to the fee allocation orders
implemented by the Watts Guerra Settlement Agreement and that these changes
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“reallocate $7 million by taking it away from the three common benefit pools and
putting it into the IRPA fund, but [the district court] will not allow all IRPAs to share
in the now $67 million IRPA pool.” Id. at *11; see also id. at *12 (“This
‘reshuffling’ of money among the four pools and giving Watts [Guerra] a dedicated
bonus of $7 million from the money shaved from the other three pools financially
harms [the Objecting Firms] because, if the IRPA fund was underfunded by $7
million, that money should be put into the IRPA fund for all IRPA to share pro rata,
including the Movants, and not for the exclusive benefit of Watts Guerra, particularly
where this Court has stated it will not make any findings or conclusions to justify
such a windfall to Watts Guerra.”). They further argued that the disbursement would
disburse funds that had been improperly reallocated between the various pools by the
Watts Guerra Settlement Agreement and that the district court had failed to make
findings of fact or conclusions of law.18
The district court denied the motion to stay—as well as the request for
supplemental briefing and a hearing—in an order issued on December 31, 2020. See
Dist. Ct. Mem. & Order, No. 2:14-md-02591-JWL, ECF No. 4546, at *1 (D. Kan.,
filed Dec. 31, 2020). It noted that there would be no utility in granting a stay because
the relief sought in the motion to stay was also what the Objecting Firms “s[ought] in
18
Additionally, Byrd/Shields and Hossley-Embry filed a motion in this
Court requesting that we enjoin the district court from granting the motion for
disbursement. See Mot. to Enjoin the Dist. Ct., Nos. 19-3008 et al., at *1 (10th Cir.,
filed Dec. 16, 2020). We denied that motion. See Order, Nos. 19-3008 et al., at *1
(10th Cir., filed Jan. 6, 2021).
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opposing the motion for disbursement,” and the district court would consider the
arguments made by the Objecting Firms in support of their motion to stay when it
ruled on the merits of the motion to disburse. Id. at *4.
3. The January 2021 Disbursement Orders
On January 12, 2021, the District Court issued a pair of orders (“the January
2021 Disbursement Orders”) granting the motion to disburse the funds and ordering
the funds to be immediately made available to the various firms. See Suppl. Jt. App.,
Vol. I, at 9–22 (Dist. Ct. Mem. & Order, filed Jan. 12, 2021); id. at 23–24 (Dist. Ct.
Order Granting Mot. for Disbursement of Funds, filed Jan. 12, 2021). In the more
substantive of the two orders, the district court—after concluding that it had
jurisdiction to disburse the funds—provided its reasons for granting the motion to
disburse. The district court rejected the Objecting Firms’ argument that the money
would be too difficult to claw back—largely because of the $30 million that was held
back in escrow—and noted that, as a matter of course, fees were often disbursed
when appeals of the fee awards were pending.
In the more substantive order, the district court also rejected the Objecting
Firms’ “many arguments relating to the Watts Guerra settlement and the Court’s
orders concerning that settlement.” Id. at 18. In particular, the district court
concluded that it did not violate Rule 23(h) in approving the Watts Guerra Settlement
Agreement because “the Court did not disturb its [prior] fee awards, but rather it
altered the eventual distribution of those awards by the administrator to effect the
Watts Guerra settlement, for the sake of efficiency,” so additional findings of fact
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and conclusions of law under Rule 23(h) were not required. Id. at 19; see also id.
(reiterating that “[t]he Court did not make any substantive modification of its prior
fee awards”).19 Additionally, the district court rejected the argument that the Watts
Guerra Settlement Agreement had added funds to the IRPA Pool that the Objecting
Firms would not be allowed to share in. Specifically, it concluded:
Shields argues that the agreement sanctioned by the Court adds $7
million to the IRPA pool, but that only Watts Guerra may receive
that amount, with other firms denied the opportunity to share in
that addition to the pool. That argument is frivolous, based on a
blatant misreading of the agreement. The agreement and the
Court’s orders make clear that the only modifications are to the
common benefit pools, not the IRPA pool, and the agreement
provides that Watts Guerra shall treat the additional funds as if they
had come from the IRPA pool for the purpose of distributing those
fund[s] to associated counsel.
Id at 19–20.20 In the second, summary order, the district court ordered the immediate
disbursement of the funds by Settlement Class Counsel.
19
In its earlier order denying the Objecting Firms’ request for a stay, the
district court foreshadowed this conclusion, noting that “Shields appears to have
willfully misrepresented what the Court did in the indicative ruling. The Court made
clear in that ruling that it was not disturbing its findings regarding the reasonable
allocations and awards of attorney fees . . . and that it was merely agreeing to alter
the distribution of fees . . . in accordance with the private settlement agreement for
the sake of efficiency.” Dist. Ct. Mem. & Order, ECF No. 4546, at *5 n.5.
20
The district court also rejected an argument advanced by the Objecting
Firms that a letter sent to one of their component firms showed that all firms were
being forced to fund the Watts Guerra Settlement Agreement, regardless of whether
they were a party to that agreement. Specifically, the district court noted that the
letter was concededly sent in error, and its sending did not indicate that non-parties to
the Watts Guerra Settlement Agreement would be financially impacted.
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Shortly thereafter, Byrd/Shields and Hossley-Embry filed amended notices of
appeal challenging the January 2021 Settlement Order and the January 2021
Disbursement Orders. Their appeals were docketed as No. 21-3021 and No. 21-3022,
respectively. Additionally, Toups/Coffman amended earlier notices of appeal to
include challenges to the January 2021 Settlement Order and the January 2021
Disbursement Orders. Their appeal was docketed as No. 21-3020.
E. Early History of the Watts Guerra Settlement Appeals
After the Watts Guerra Settlement Appeals were docketed, Watts Guerra and
Settlement Class Counsel moved to dismiss these appeals. See Watts Guerra’s Mot.
to Dismiss, Nos. 21-3021 et al., at *1 (10th Cir., filed Feb. 17, 2021); Settlement
Class Counsel’s Mot. to Dismiss, Nos. 21-3021 et al., at *1 (10th Cir., filed Feb. 17,
2021). These motions remain pending.
As explained in more detail below, Watts Guerra’s motion primarily argues
that the Objecting Firms lack standing to appeal the January 2021 Settlement Order
in which the district court approved the Watts Guerra Settlement Agreement. And in
their motion to dismiss, Settlement Class Counsel (1) joined Watts Guerra’s standing
argument; (2) argued that the Objecting Firms lack standing to object to the January
2021 Disbursement Orders; and (3) argued that even if the Objecting Firms had
standing, their challenge to the January 2021 Disbursement Orders would necessarily
be mooted by resolution of the Fee Allocation Appeals, so the Watts Guerra
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Settlement Appeals should be abated.21 Heninger Garrison Davis, LLC, one of the
leadership firms from Illinois and one of the Appellee Parties, filed a response in
support of the motions to dismiss.
The Objecting Firms opposed the motions to dismiss, arguing, inter alia, that
their “interest in the amount of attorneys’ fees they receive confer[s] Article III
standing to challenge the District Court’s fee-allocation process and its results,”
including the January 2021 Settlement Order and the January 2021 Disbursement
Orders. Jt. Suggestions in Opp’n to Aplees.’ Mots. to Dismiss, Nos. 21-3021 et al.,
at *9 (10th Cir., filed Mar. 3, 2021).
Without resolving the motions to dismiss, we abated the Watts Guerra
Settlement Appeals pending further order of this Court. See Order, Nos. 21-3021 et
al., at *2 (10th Cir., filed Mar. 5, 2021). We required that “[w]ithin 5 days of a
decision in the fee allocation appeals or any other development that affects the
abatement of these appeals, the appellants shall file a written report(s) addressing the
impact of the decision or other development on these appeals.” Id. (bold typeface
omitted).
F. The IRPA Pool Allocation Appeals and the Contingent Cross-Appeal
Not long after we abated the Watts Guerra Settlement Appeals, and while the
original Fee Allocation Appeals were still pending, the district court allocated the
21
Settlement Class Counsel also moved to dismiss Toups/Coffman’s
separate appeal, No. 21-3020, but that appeal has since been resolved. See infra note
24.
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funds within the IRPA pool. Specifically, the district court issued an order on June 4,
2021 (“the June 2021 IRPA Pool Allocation Order”) that adopted an earlier report
and recommendation filed by the special master and awarded $60 million within the
IRPA Pool. See Suppl. Jt. App., Vol. XIII, at 3561–3570 (Dist. Ct. Mem. & Order on
IRPA Pool Allocation, filed June 4, 2021).
A number of firms, including Byrd/Shields and Hossley-Embry, filed notices
of appeal challenging the June 2021 IRPA Pool Allocation Order. Their appeals
were docketed as No. 21-3111 and No. 21-3110, respectively, and we refer to these
as the IRPA Pool Allocation Appeals. Additionally, Kansas Co-Lead Counsel filed a
“conditional or contingent cross-appeal” of the June 2021 IRPA Pool Allocation
Order, which was docketed as No. 21-3121.
After the IRPA Pool Allocation Appeals were filed, Watts Guerra and
Settlement Class Counsel separately moved to dismiss the appeals filed by the
Objecting Firms.22 Before the Objecting Firms could respond to the motions to
dismiss, we issued an order procedurally consolidating the Watts Guerra Settlement
Appeals and the IRPA Pool Allocation Appeals and noting that any challenges to the
January 2021 Settlement Order or the January 2021 Disbursement Orders “shall
remain abated.” Order, Nos. 21-3111 et al., at *2 (10th Cir., filed July 1, 2021). We
subsequently issued an order providing that “[a]ny challenges to the district court’s
22
Settlement Class Counsel also sought to dismiss a separate appeal filed
by Toups/Coffman, No. 21-3106, but that appeal has since been resolved. See infra
note 24.
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allocation of the IRPA pool itself will be addressed in” the IRPA Pool Allocation
Appeals, and that “briefing as to the merits of the IRPA pool allocation is hereby
abated pending further order of this [C]ourt.” Order, Nos. 21-3111 et al., at *1–2
(10th Cir., filed July 12, 2021). We also procedurally consolidated the contingent
cross-appeal with the IRPA Pool Allocation Appeals and the Watts Guerra Settlement
Appeals.
Additionally, because the June 2021 IRPA Pool Allocation Order was issued
after we held oral argument on the Fee Allocation Appeals, we requested that the
parties file “supplemental briefing as to the effect of the district court’s June 4, 2021,
order allocating the IRPA pool on the substantive issues raised in the . . . [F]ee
[A]llocation [A]ppeals.” Order, Nos. 19-3008 et al., at *1 (10th Cir., filed July 12,
2021). We noted that the supplemental briefs “shall not raise any challenge to the
district court’s allocation of the IRPA pool itself”—instead, “the merits of the IRPA
pool allocation” would be separately addressed in the IRPA Pool Allocation Appeals.
Id.
The parties subsequently submitted their supplemental briefs: in particular,
Byrd/Shields’s briefing focused on the deleterious impacts of the Watts Guerra
Settlement and the “meager” twelve percent of the total attorneys’ fees award that
was allocated to the IRPA Pool. See Supp. Br. of Aplts. Shields Law Group, LLC
and Paul Byrd Law Firm, PLLC, Nos. 19-3008 et al., at *1–8 (10th Cir., filed July
26, 2021); accord Suppl. Br. of Aplt. Hossley-Embry, LLP, Nos. 19-3008 et al., at *2
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(10th Cir., filed July 26, 2021) (incorporating by reference the arguments made by
Byrd/Shields).
G. Resolution of the Fee Allocation Appeals by In re Syngenta I
On February 28, 2023, we issued In re Syngenta I, which affirmed the various
orders of the district court with respect to the Fee Allocation Appeals including,
notably, the district court’s December 2018 Fee Allocation Order, March 2019
Kansas Pool Order, July 2019 Minnesota Pool Order, November 2019 Illinois Pool
Order, and July 2019 Expense Order. See 61 F.4th at 1138.
1. Issues Decided in In re Syngenta I
After laying out the tortuous procedural history of the case, we had to decide
the issue of finality: specifically, given the fact that the district court did not
complete allocation of the $503 million until the June 2021 IRPA Pool Allocation
Order, did we lack jurisdiction over appeals that were filed before that date? We
concluded that “all proceedings after the Kansas district court’s Aggregate Fee Order
and corresponding Final Order and Judgment constitute one, post-judgment litigation
that only concluded with the filing of the June 2021 IRPA Pool Allocation Order,”
and, consequently, “all appeals challenging the Kansas district court’s various
allocation orders . . . before the June 2021 IRPA Pool Allocation Order were not
appeals from final orders as required for our jurisdictional purposes.” Id. at 1173–74.
However, we concluded that the appellants’ notices of appeal—though prematurely
filed—ripened when the June 2021 IRPA Pool Allocation Order was issued, so we
had jurisdiction over the Fee Allocation Appeals. See id. at 1176–77.
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Once assured of our own jurisdiction, we then addressed the various
challenges that the appellants—including the Objecting Firms—had made to the
district court’s fee allocation process. Ultimately, we rejected all challenges to the
district court’s decisions, concluding, among other things, that (1) the district court
acted within its discretion in modifying the appellants’ contingent-fee contracts; (2)
the district court acted within its discretion in devising the four-pool system and in
determining the appropriate percentages for each pool; (3) the district court acted
within its discretion in allocating the funds within the Kansas Common Benefit Pool
and the Minnesota Common Benefit Pool; (4) the district court did not err in
determining that the joint prosecution agreements did not govern the fee allocation
after the Syngenta settlement; (5) the district court acted within its discretion in
allotting twelve percent of the aggregate fee award to the IRPA pool; (6) the district
court’s July 2019 Expense Order was reasonable; and (7) the district court’s
deferential review of the allocation decisions made by the Illinois federal court did
not prejudice the appellants challenging the November 2019 Illinois Pool Order. We
also dismissed one of the cross-appeals raised by Kansas Co-Lead Counsel as moot.
Finally, we also rejected Byrd/Shields’s and Hossley-Embry’s attempts to file
additional briefing to challenge the district court’s denial of their motions for
reconsideration, see supra note 12. We concluded that Byrd/Shields and Hossley-
Embry had “effectively waived their arguments” on the motion for reconsideration by
failing to raise them in their opening briefs, and, in any event, their arguments were
“meritless and irrelevant to our review.” Id. at 1223–24.
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Accordingly, we affirmed the judgment of the district court in full.23
2. Issues Not Decided in In re Syngenta I
Although we resolved the vast majority of the outstanding issues in In re
Syngenta I, we did not purport to resolve all of the issues raised in connection with
the attorneys’ fees dispute.
First, with respect to the Watts Guerra Settlement Appeals, we acknowledged
the existence of the Watts Guerra Settlement Agreement and observed that “[b]y
design, the Watts Guerra Settlement would not affect the fee awards of firms that
were not party to the agreement.” Id. at 1169. But we declined to reach
Byrd/Shields’s argument that “the district court abused its discretion when, [in]
January 2021, it re-allocated the amounts awarded to the four pools ‘without
complying with [Federal Rule of Civil Procedure] 23(h).’” Id. at 1208 n.51 (second
alteration in original). In declining to reach this argument, we reasoned that “[a]fter
reviewing the record, we find Byrd and Shields’s Rule 23(h) argument better
described as a challenge to the Watts Guerra Settlement and, therefore, outside the
scope of our review in the instant appeal.” Id.; see also id. at 1208 n.52 (“Reflecting
the directions of our Supplemental Briefing Order, we confine our discussion of the
Kansas district court’s approval of the Watts Guerra Settlement to its implications for
the court’s alleged disregard of the [joint prosecution agreements].”).
23
Several parties, including Toups/Coffman, Hossley-Embry, and
Byrd/Shields, sought rehearing en banc. We denied these requests.
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Second, with respect to the IRPA Pool Allocation Appeals, we noted that we
had previously “prohibited the parties from ‘rais[ing] any challenge to the district
court’s allocation of the IRPA pool itself’ and limited the supplemental briefing ‘to
arguments regarding whether, and to what extent, the [June 2021 IRPA Pool
Allocation Order] . . . affect[ed] the fee allocation issues already briefed by the
parties.’” Id. at 1169 n.26 (alterations and omission in original). We further noted
that although the parties had properly filed separate notices of appeal with respect to
the June 2021 IRPA Pool Allocation Order—as they were required to do under our
precedent—“the merits issues in the appeals now before us focus exclusively on the
Kansas district court’s orders before June 2021, and we have abated the appeals filed
with respect to the court’s June 2021 IRPA Pool Allocation Order pending our
resolution of these appeals.” Id. at 1177 n.32.
Thus, we declined to decide either the Watts Guerra Settlement Appeals or the
IRPA Pool Allocation Appeals.
H. Subsequent Proceedings in the Pending Appeals
Notwithstanding their defeat in the Fee Allocation Appeals, on March 15,
2023, the Objecting Firms filed a “Motion to Lift Stay and to Enter a Scheduling
Order” in the Watts Guerra Settlement Appeals and the IRPA Pool Allocation
Appeals. See Mot. to Lift Stay & to Enter a Scheduling Order, Nos. 21-3021 et al., at
*1–2 (10th Cir., filed Mar. 15, 2023). According to the Objecting Firms, because we
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resolved the Fee Allocation Appeals, their remaining appeals are “ripe for
consideration.” Id. at *4–5.24
Both the Joint Appellees and Watts Guerra filed responses. In their response,
the Joint Appellees agree that the abatement should be lifted, but they “strongly
disagree[] . . . that these appeals warrant ‘full briefing.’” Jt. Aplees.’ Resp. to
Shields Aplts.’ Mot. to Lift Stay & Enter a Scheduling Order, Nos. 21-3021 et al., at
*2 (10th Cir., filed Mar. 27, 2023). They instead suggest that the remaining appeals
should be dismissed or summarily affirmed. With respect to the Watts Guerra
Settlement Appeals, they argue that the already-filed motions to dismiss should be
granted. And with respect to the IRPA Pool Allocation Appeals, they argue that the
district court’s judgment should be “summarily affirmed.” Id. at *16.
Watts Guerra opposes the Objecting Firms’ request in part, also agreeing that
the abatement should be lifted but arguing that its motion to dismiss the Watts Guerra
Settlement Appeals should be resolved before reaching the merits of those appeals.
See Watts Guerra’s Opp’n to Shields Aplts.’ Mot. to Enter a Scheduling Order, Nos.
21-3021 et al., at *2, *8 (10th Cir., filed Mar. 27, 2023). Watts Guerra also noted
that to the extent the IRPA Pool Allocation Appeals “challenge only the allocation
within the IRPA pool, Watts Guerra does not consider itself to be an appellee,” but
24
The Objecting Firms also sought to re-open Toups/Coffman’s appeals of
the Watts Guerra Settlement Order and the June 2021 IRPA Pool Allocation Order.
But Toups/Coffman themselves asserted that they “d[id] not believe that further
proceedings [were] necessary” in either of their remaining appeals. Resp. to May 9,
2023 Order, Nos. 21-3020 et al., at *2 (10th Cir., filed May 22, 2023). We
accordingly dismissed both of Toups/Coffman’s appeals.
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that it “agrees with Joint Appellees that those appeals should be resolved without
further briefing.” Id. at *6 n.3.25
We issued an order on May 9, 2023 (“the May 2023 Briefing Order”), that
took the Objecting Firms’ motion under advisement. See Order, Nos. 21-3021 et al.,
at *1 (10th Cir., filed May 9, 2023). In the May 2023 Briefing Order, we also, inter
alia, required the Objecting Firms to show cause as to why the Watts Guerra
Settlement Appeals should not be dismissed as moot. In response, Byrd/Shields and
Hossley-Embry filed identical memoranda asserting that the Watts Guerra Settlement
Appeals are not moot. See Aplts.’ Mem. Concerning Lack of Mootness filed by
Byrd/Shields, No. 21-3021, at *1 (10th Cir., filed May 22, 2023); Aplt.’s Mem.
Concerning Lack of Mootness filed by Hossley-Embry, No. 21-3022, at *1 (10th Cir.,
filed May 22, 2023).
25
Both the Joint Appellees and Watts Guerra also contend that the
Objecting Firms filed their motion to lift the stay without complying with 10TH CIR.
R. 27.1 or our earlier order requiring the appellants to file, within five days of a
decision on the Fee Allocation Appeals, a report explaining the impact of that
decision on the pending appeals. The Joint Appellees further suggest that the very
fact that the Objecting Firms seek to reopen the Watts Guerra Settlement Appeals and
the IRPA Pool Allocation Appeals “should subject [the Objecting Firms] to
sanctions.” Jt. Aplees.’ Resp. to Shields Aplts.’ Mot. to Lift Stay & Enter a
Scheduling Order, at *14. Because we dismiss the Watts Guerra Settlement Appeals
for lack of subject-matter jurisdiction, we decline to take action on—or opine on the
merits of—these perfunctory arguments and requests.
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I. The December 2023 Disbursement Order26
Finally, on November 9, 2023, Settlement Class Counsel, as well as a number
of other attorneys, filed a motion in the district court requesting that the district court
disburse most of the funds remaining in escrow. The movants asserted that almost
$93 million—consisting of the $30 million holdback from the common benefit pools,
the entire $60.2 million allocation to the IRPA pool, and over $2 million in funds
approved for disbursement but not yet claimed by firms—remained in escrow. The
movants contended that (1) the $30 million that was originally held back from the
common benefit pools should be disbursed in light of our resolution of the various
fee allocation appeals in In re Syngenta I; and (2) the $60 million in the IRPA Pool
should also be disbursed even though the IRPA Pool Allocation Appeals remained
pending.
26
Pursuant to FED. R. APP. P. 28(j), the Joint Appellees wrote to us on
December 15, 2023, to apprise us of these recent developments in the district court.
We have the discretion to take judicial notice of filings on the district court docket.
See, e.g., United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010). To be
clear, we recognize that “standing is determined at the time the action is brought.”
Mink v. Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007). We do not rely on the district
court’s December 2023 Disbursement Order—issued after these appeals were
brought—in our determination infra regarding whether the Objecting Firms have
standing. Rather, we notice the order merely to provide a more complete historical
picture of the Objecting Firms’ arguments concerning the Watts Guerra Settlement
Agreement and the court’s response to them. See, e.g., 21B Charles Alan Wright, et
al., FEDERAL PRACTICE AND PROCEDURE § 5106.4 (2d ed.), Westlaw (database
updated Apr. 2023) (noting that “[j]udicial records are a source of ‘reasonably
indisputable accuracy’ when they record some judicial action” and that “[j]udicial
records may sometimes be properly noticed to show the acts of the parties or other
actors in the litigation”).
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Byrd/Shields and Hossley-Embry filed a response in opposition to the motion
to disburse. With respect to the $30 million holdback, the Objecting Firms asserted
that those funds should not be disbursed because there were still remaining appeals
that implicated the four-pool allocation scheme and the $30 million could be used to
reach a settlement with the opposing parties. And with respect to the $60 million
allocation to the IRPA Pool, the Objecting Firms contended that those monies should
not be disbursed in light of their pending challenges on appeal to the IRPA Pool.
They also asserted—again—that an additional $7 million was added to that pool by
the Watts Guerra Settlement Agreement.
On December 13, 2023, the district court issued an order granting the motion
for disbursement (“the December 2023 Disbursement Order”). See Mem. & Order,
No. 2:14-md-02591-JWL, ECF No. 4713 (D. Kan., filed Dec. 13, 2023). After
concluding that it had jurisdiction to grant the movants’ request, the district court
concluded that the monies at issue should be disbursed. As to the $30 million
holdback, the district court noted that in In re Syngenta I, we affirmed the district
court’s fee allocation orders, so the awards from the common benefit pools have now
been affirmed and, consequently, there is no need for the holdback at this point. And
as to the over $60 million in the IRPA pool, the district court observed that the total
allocation to that pool was affirmed in In re Syngenta I, and the Objecting Firms had
little likelihood of success in the IRPA Pool Allocation Appeals.27
27
This conclusion was based in part on the district court’s conclusion that
Byrd/Shields and Hossley-Embry “did not preserve (by raising in [the district court])
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The district court also opined on the Objecting Firms’ likelihood of success in
the Watts Guerra Settlement Appeals, noting that it had rejected the Objecting Firms’
arguments “on multiple occasions and in the strongest terms.” December 2023
Disbursement Order, ECF No. 4713, at *7. The district court also stated that
“because objectors’ fee awards would not be affected (as the payment to Watts
Guerra was being made only by certain firms who agreed to the settlement), objectors
lacked standing to object to the settlement.” Id. at *8. The district court chastised
the Objecting Firms for their failure to address their lack of standing despite the issue
having been repeatedly raised.
II. DISCUSSION
In In re Syngenta I, we did not—and could not—resolve all of the myriad and
long-percolating disputes related to attorneys’ fees from the Syngenta class action
settlement. Nor do we bring those disputes to an end today. But we can close the
door on one aspect of this protracted litigation by resolving the Watts Guerra
Settlement Appeals, which challenge the district court’s January 2021 Settlement
Order and January 2021 Disbursement Orders.
Although the Watts Guerra Settlement Appeals—Nos. 21-3021 and 21-3022—
remain abated at this time, multiple sets of motions are now fully briefed and ready
for decision: Watts Guerra’s motion to dismiss, Settlement Class Counsel’s motion to
dismiss, and the Objecting Firms’ motion to lift the abatement and enter a scheduling
any specific objection to the IRPA award and recommendation that the Court
adopted.” December 2023 Disbursement Order, ECF No. 4713, at *7.
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order. For the following reasons, we grant in part, deny in part, and defer ruling
on in part the Objecting Firms’ motion to lift the abatement and enter a scheduling
order, and we lift the abatement. We grant Watts Guerra’s motion to dismiss,
grant Settlement Class Counsel’s motion to dismiss, and dismiss these appeals.
We will first discuss the general contours of Article III’s case-or-controversy
requirement, focusing on two doctrines particularly germane to this case: standing
and mootness. Next, we will lay out the various arguments made by the parties about
our subject-matter jurisdiction. Finally, we will explain how we lack subject-matter
jurisdiction over the Watts Guerra Settlement Appeals because (1) the Objecting
Firms lack standing to challenge the January 2021 Settlement Order and (2)
principles of mootness and standing make clear that we lack subject-matter
jurisdiction over any challenge to the January 2021 Disbursement Orders.
A. Article III’s Case-or-Controversy Requirement
Because federal courts—including appellate courts—are “courts of limited
subject-matter jurisdiction,” “we ‘may only hear cases when empowered to do so by
the Constitution and by act of Congress.’” Gad v. Kan. State Univ., 787 F.3d 1032,
1035 (10th Cir. 2015) (quoting Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220,
1225 (10th Cir. 2004)). “Our subject-matter jurisdiction is a constitutional
prerequisite to hearing a case,” and we have an obligation to ensure that we have
jurisdiction before reaching the merits of an appeal. Id.; see also Rio Grande Found.
v. Oliver, 57 F.4th 1147, 1165 (10th Cir. 2023) (“[W]e have an independent duty to
ensure ourselves of our own jurisdiction . . . .”).
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One fundamental principle of our subject-matter jurisdiction is the
“constitutional limitation of federal-court jurisdiction to actual cases or
controversies.” Brown v. Buhman, 822 F.3d 1151, 1163 (10th Cir. 2016) (quoting
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013)). “Two related doctrines,
standing and mootness, keep federal courts within their constitutional bounds.” Id.
The Watts Guerra Settlement Appeals implicate both doctrines.28
1. Standing
“Article III of the U.S. Constitution limits the jurisdiction of federal courts to
‘Cases’ and ‘Controversies.’” Defs. of Wildlife v. Everson, 984 F.3d 918, 944–45
(10th Cir. 2020) (quoting U.S. Const. art. III, § 2, cl. 1). As such, “[a] challenge to
standing presents the ‘threshold jurisdictional question of whether a court may
consider the merits of a dispute.’” Tennille, 809 F.3d at 559 (quoting S. Utah
28
Another aspect of our jurisdiction is the requirement that appeals be
taken from a final decision of the district court—an issue that we analyzed in depth in
In re Syngenta I. See 61 F.4th at 1171–77 (citing 28 U.S.C. § 1291). In that case, we
concluded that most of the appellants’ notices of appeal were prematurely filed
because a final decision was not present until the district court issued the June 2021
IRPA Pool Allocation Order. See id. at 1173–74. Nevertheless, we concluded that
we had jurisdiction over the various Fee Allocation Appeals because the premature
notices of appeal ripened when the June 2021 IRPA Pool Allocation Order was
issued. See id. at 1177.
Although no party raises the issue of finality with respect to the Watts Guerra
Settlement Appeals, we have an independent obligation to ensure our own appellate
jurisdiction. See Rio Grande Found., 57 F.4th at 1165. We conclude that—as with
the Fee Allocation Appeals—the Objecting Firms’ premature notices of appeal
challenging the district court’s January 2021 Settlement Order and January 2021
Disbursement Orders ripened when the district court issued its June 2021 IRPA Pool
Allocation Order. See In re Syngenta I, 61 F.4th at 1176–77.
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Wilderness All. v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013)). “The standing
Article III requires must be met by persons seeking appellate review, just as it must
be met by persons appearing in courts of first instance.” Id. (quoting Arizonans for
Off. English v. Arizona, 520 U.S. 43, 64 (1997)). Thus, “[i]f we conclude a party
lacks standing to appeal from a district court’s order, we lack jurisdiction over the
appeal and must dismiss it.” Id. We review the issue of standing de novo. See id.
“To establish the ‘irreducible constitutional minimum’ of standing,” a party
must make three showings: “‘(1) it has suffered an “injury in fact” that is (a) concrete
and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the defendant; and (3) it is likely,
as opposed to merely speculative, that the injury will be redressed by a favorable
decision.’” Everson, 984 F.3d at 945 (first quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992); then quoting New Eng. Health Care Emps. Pension Fund v.
Woodruff, 512 F.3d 1283, 1288 (10th Cir. 2008)). The party invoking federal
jurisdiction bears the burden of establishing these elements. See id.
For purposes of standing, “a party’s injury may be a procedural one ‘so long as
the procedures in question are designed to protect some threatened concrete interest
of [the party] that is the ultimate basis of [its] standing.’” New Mexico v. Dep’t of
Interior, 854 F.3d 1207, 1215 (10th Cir. 2017) (alterations in original) (quoting
Lujan, 504 U.S. at 573 n.8). “To establish standing in such circumstances, a plaintiff
‘need only show that compliance with the procedural requirements could have better
protected its concrete interests,’ and thus that the procedural violation created a ‘risk
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of real harm . . . .’” Id. (citations omitted) (first quoting WildEarth Guardians v.
EPA, 759 F.3d 1196, 1205 (10th Cir. 2014); then quoting Spokeo, Inc. v. Robins, 578
U.S. 330, 341 (2016)). But a party cannot “allege a bare procedural violation,
divorced from any concrete harm, and satisfy the injury-in-fact requirement of
Article III.” Spokeo, 578 U.S. at 341.
2. Mootness
Article III’s case-and-controversy requirement is also the basis for our
mootness doctrine. See Unified Sch. Dist. No. 259 v. Disability Rights Ctr. of Kan.,
491 F.3d 1143, 1147 (10th Cir. 2007). Mootness is essentially “standing set in a time
frame” and ensures that “[t]he requisite personal interest that must exist at the
commencement of the litigation . . . continue[s] throughout its existence.” Prison
Legal News v. Fed. Bureau of Prisons, 944 F.3d 868, 879 (10th Cir. 2019) (quoting
Brown, 822 F.3d at 1164).
“A ‘suit becomes moot when the issues presented are no longer “live” or the
parties lack a legally cognizable interest in the outcome.’” Brown, 822 F.3d at 1165
(quoting Chafin v. Chafin, 568 U.S. 165, 172 (2013)). “An action becomes moot ‘[i]f
an intervening circumstance deprives the plaintiff of a personal stake’” in the
outcome. Prison Legal News, 944 F.3d at 880 (alteration in original) (quoting
Brown, 822 F.3d at 1165). Thus, “[t]he crucial question is whether granting a present
determination of the issues offered will have some effect in the real world.” Brown,
822 F.3d at 1165–66 (quoting Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212
(10th Cir. 2005)). “Put another way, a case becomes moot when a plaintiff no longer
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suffers actual injury that can be redressed by a favorable judicial decision.” Id. at
1166 (quoting Ind v. Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015)).
“Mootness is a threshold issue because the existence of a live case or
controversy is a constitutional prerequisite to federal court jurisdiction.” Rio Grande
Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010)
(quoting Disability Law Ctr. v. Millcreek Health Ctr., 428 F.3d 992, 996 (10th Cir.
2005)). “Without a live, concrete controversy, we lack jurisdiction to consider
claims no matter how meritorious.” Id. (quoting Habecker v. Town of Estes Park,
518 F.3d 1217, 1223 (10th Cir. 2008)). And “[t]he controversy must exist not only at
the time the complaint is filed but at all stages of appellate review.” Lucero v.
Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1242 (10th Cir. 2011); see also
United States v. Fisher, 805 F.3d 982, 989 (10th Cir. 2015) (“Th[e] case-or-
controversy limitation requires that parties continue to have a personal stake in the
outcome of a lawsuit during all stages of litigation, including appellate review.”).
B. Parties’ Arguments
Because of the complexity of this case, and the fact that the parties’ discussion
of our subject-matter jurisdiction has proceeded in a nontraditional matter—viz.,
throughout a variety of different documents—it is helpful to expressly lay out the
parties’ various arguments. These arguments can be found in the briefing on the
motions to dismiss the Watts Guerra Settlement Appeals, in the responses in
opposition to the Objecting Firms’ motion to lift the stay, and in the Objecting Firms’
memoranda on mootness. We discuss the arguments in each set of filings in turn.
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1. The Motions to Dismiss
The most fulsome discussion of our subject-matter jurisdiction exists in the
briefing on Watts Guerra’s and Settlement Class Counsel’s motions to dismiss. But
there is a caveat to taking that briefing at face value: it pre-dates our decision in In re
Syngenta I, which resolved the related Fee Allocation Appeals. Thus, we must bear
in mind that the landscape of subject-matter jurisdiction—particularly with regard to
mootness—has shifted since the motions were briefed.
a. Watts Guerra’s Motion to Dismiss
Watts Guerra argues that the Objecting Firms “have no standing to challenge”
the Watts Guerra Settlement Agreement because “[t]hey were not required to
contribute to the settlement payment, their own attorneys’ fees were not reduced, and
their own appeals were not affected.” Watts Guerra’s Mot. to Dismiss at *2. Watts
Guerra repeatedly points to language in both the Watts Guerra Settlement Agreement
itself and the district court’s orders indicating that the attorneys’ fees received by the
Objecting Firms would be unaffected.
Watts Guerra cites the general rule that “a non-settling party does not have
standing to object to a settlement between other parties.” Id. at *12 (quoting Agretti
v. ANR Freight Sys., Inc., 982 F.2d 242, 246 (7th Cir. 1992)). They also compare
this situation to Tennille, arguing that, like the defendant in Tennille, the Objecting
Firms are not paying the attorneys’ fees at issue here—instead, all money will come
from the coffers of the settling parties.
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With respect to the January 2021 Disbursement orders, Watts Guerra observes
that resolving the Fee Allocation Appeals—which, again, at the time the motion to
dismiss was filed, had not yet been resolved—“could moot any challenge” to those
orders. Id. at *14 n.9.
b. Settlement Class Counsel’s Motion to Dismiss
In their motion to dismiss, Settlement Class Counsel expressly join Watts
Guerra’s motion to dismiss the Watts Guerra Settlement Appeals insofar as they
relate to the January 2021 Settlement Order. And with respect to the January 2021
Disbursement Orders,29 they raise two distinct arguments.
First, Settlement Class Counsel argue that the Objecting Firms lack standing to
challenge the January 2021 Disbursement Orders because they cannot show “any
concrete injury arising from” the January 2021 Disbursement Orders. Settlement
Class Counsel’s Mot. to Dismiss at *8. According to Settlement Class Counsel, the
Objecting Firms lack standing because they are “beneficiaries of [those] order[s],
which permit[] them to receive reimbursement of all their approved expenses and the
29
Settlement Class Counsel also apparently intended their arguments to
relate to any challenge to the district court’s December 31, 2020, denial of
Byrd/Shields’s motion to stay. See Settlement Class Counsel’s Mot. to Dismiss at *1
(“Settlement Class Counsel further move to dismiss the three appeals to the extent
that [appellants] seek review of the district court’s December 31, 2021 [sic] or
January 12, 2021 orders denying a motion to stay and granting in part Settlement
Class Counsel’s request for a partial distribution . . . .”). However, there is no
indication that Byrd/Shields or Hossley-Embry challenge that order, which was not
named in their notices of appeal. And to the extent that they originally intended to do
so, any challenge to that order would now be moot because the movants asked for
any ruling on disbursement to be stayed until after the Fee Allocation Appeals were
decided—a condition that has now occurred.
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same share of their presently awarded attorneys’ fees, from the common benefit
pools, as other recipients.” Id. Furthermore, they argue that the $30 million
holdback is sufficient to cover any amount that could possibly be shifted around as a
result of the Fee Allocation Appeals.
Second, Settlement Class Counsel argue that we should abate the appeals with
respect to the January 2021 Disbursement Orders because a decision on the Fee
Allocation Appeals would “almost certainly moot any challenge to the disbursement
orders.” Id. at *7. Given that we did, in fact, abate the Watts Guerra Settlement
Appeals and have since resolved the Fee Allocation Appeals, this argument is stale.
But it could still bear on the question of whether the appeals are now moot;
specifically, Settlement Class Counsel originally argued that the Watts Guerra
Settlement Appeals should be abated pending a final decision on the Fee Allocation
Appeals because “[o]ne way or another, the resolution of the fee allocation appeals
will moot the appeals to the” January 2021 Disbursement Orders. Id. at *11. On this
point, Settlement Class Counsel argue that if the Objecting Firms “lose their fee
allocation appeals, they could not articulate any basis to challenge the disbursement
order[s] because the district court’s allocation of attorneys’ fees [was] affirmed.” Id.
c. The Combined Response to the Motions to Dismiss
In response, the Objecting Firms argue that they have standing because
“standing emanates directly from the existence of the attorney fee fund, the District
Court’s allocation Orders, its reallocation Order, its rejection of Appellant’s Motion
to Reconsider the District Court’s allocations, and from the Watts Guerra settlement
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agreement which the District Court incorporated into the reallocation Order.” Jt.
Suggestions in Opp’n to Aplees.’ Mots. to Dismiss at *2. Although their specific
arguments as to why they have standing are overlapping and difficult to tease apart,
they appear to fall into six broad categories.30
First, they seemingly contend that the terms of the Watts Guerra Settlement
Agreement itself gives them standing because the Settlement Agreement denominates
them as “Interested Parties.” See id. at *8.
Second, they argue that their “interest in the amount of attorneys’ fees they
receive” confers Article III standing. Id. at *9. According to Byrd/Shields and
Hossley-Embry, they have a property interest in the $503 million, which suffices to
give them standing to challenge the Watts Guerra Settlement Agreement insofar as
that agreement changes the ultimate destination of some of those monies.
Third, they argue that the district court in fact reallocated money among the
pools. Specifically, they contend that despite its earlier findings of fact and
conclusions of law about the propriety of the carefully calculated four-pool allocation
(and despite its refusal to grant their motion for reconsideration), the district court
30
In a footnote, the Objecting Firms cite to a case from our sister circuit,
In re High Sulfur Gasoline Products Liability Litigation, 517 F.3d 220, 231 (5th Cir.
2008), noting that, in that case, an immediate disbursement order violated the
automatic stay provision of Federal Rule of Civil Procedure 62(a). But they do not
develop an argument that the automatic stay provision of Rule 62(a) has, in fact, been
violated here or describe how this argument relates to standing. As such, we treat
this argument as waived, and we do not count it as a seventh separate argument. See
United States v. Walker, 918 F.3d 1134, 1151 (10th Cir. 2019) (“[A]rguments may be
deemed waived when they are advanced . . . only ‘in a perfunctory manner.’”
(quoting United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004))).
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“[i]nexplicably . . . increased the IRPA [Pool] fund by $7 million and awarded that
increase to Watts Guerra.” Id. at *13.
Fourth, they argue that the provision of the Settlement Agreement requiring
that the Appellee Parties not settle for any amount equal to or greater than the $7
million received by Watts Guerra—a “most favored nation clause”—confers
standing.
Fifth, they very briefly mention that the $503 million, including the funds
shifted around by the Watts Guerra Settlement Agreement, were “in escrow earning
interest which would have been shared among plaintiffs’ counsel, including
Appellants.” Id. at *10. Watts Guerra and Settlement Class Counsel construe this
sentence as attempting to argue that the Objecting Firms’ entitlement to a share of the
interest on the funds shifted around by the Watts Guerra Settlement Agreement
suffices to give the Objecting Firms standing.
Sixth, the Objecting Firms argue that they have suffered a procedural injury
because the district court failed to comply with Federal Rules of Civil Procedure
23(h), 54(d)(2), and 52(a) when it reallocated $7 million to the IRPA Pool. They
contend that this procedural injury is sufficient to confer standing and, in particular,
to satisfy the requirement of causation.
d. Replies to the Motions to Dismiss
In reply, Watts Guerra observes that most of the Objecting Firms’ arguments
as to why they have standing are based on incorrect assertions about the Watts
Guerra Settlement Agreement—which did not affect the attorneys’ fees received by
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Byrd/Shields and Hossley-Embry and did not result in an additional $7 million being
added to the IRPA pool. And with respect to the arguments about a procedural
injury, Watts Guerra emphasizes that “[a]n appellant cannot ‘allege a bare procedural
violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement
of Article III.’” Watts Guerra’s Reply in Support of Mot. to Dismiss, Nos. 21-3021
et al., at *7 (10th Cir., filed Mar. 10, 2021) (quoting Spokeo, 578 U.S. at 341). Watts
Guerra also asserts that the district court complied with the required procedures.
In a separate reply, Settlement Class Counsel note, among other things, that
Byrd/Shields and Hossley-Embry did little—if anything—to rebut their arguments
that there is no standing to challenge the January 2021 Disbursement Orders. They
repeatedly argue that, particularly in light of the $30 million holdback, the Objecting
Firms had no legal interest in the monies disbursed by the January 2021
Disbursement Orders except for the monies disbursed to them.
2. The Motion to Lift Stay
In their motion to lift the stay on the abated appeals, the Objecting Firms again
characterize the Watts Guerra Settlement Agreement as an effort by the settling
parties to “in effect, change the District Court’s allocations to the four pools . . . and
to then divvy up among themselves the money reallocated to the four pools.” Mot. to
Lift Stay & Enter a Scheduling Order at *3. They also assert that the Watts Guerra
Settlement Appeals are “ripe for consideration.” Id. at *4–5.
In response, the Joint Appellees argue that the Watts Guerra Settlement
Appeals should be dismissed because “[m]otions to dismiss have already been fully
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briefed and show that Appellants[] lack Article III standing because they were not
injured by the orders they appealed.” Jt. Aplees.’ Resp. to Shields Aplts.’ Mot. to
Lift Stay & Enter a Scheduling Order at *3. They further argue that although we
should lift the abatement, we should also grant the motions and dismiss the appeals.
Similarly, Watts Guerra argues that we should not request additional briefing and
should resolve the Watts Guerra Settlement Appeals by granting the motions to
dismiss for lack of standing.
3. Mootness Memoranda
Finally, in response to our May 9, 2023, order, Byrd/Shields and Hossley-
Embry each filed near-identical memoranda as to why the Watts Guerra Settlement
Appeals were not moot in light of In re Syngenta I. In particular, they argue that we
expressly declined to resolve the challenges to the Watts Guerra Settlement
Agreement, and consequently, the Watts Guerra Settlement Appeals cannot be
considered moot. They further argue that the Watts Guerra Settlement Appeals are
not moot because our previous opinion in In re Syngenta I did not have any practical
effect. Specifically, they note:
In its February 28, 2023 Opinion, [this] Court further found that
the district court’s December 2018 allocation to the four pools
“reflected an extensive—and arguably exhaustive—fee allocation
process overseen by numerous courts and numerous individuals,
judges, and experts alike.” Until that is, January 2021 when the
district court abandoned that fee allocation and decreased three
pools (Minnesota, Kansas, and Illinois) and effectively increased
the IRPA pool so that it could award an additional $7 million to
one firm without providing any legal or factual justification for
doing so in violation of Rule 23(h).
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The pool allocation the Court upheld in its February 28, 2023
Opinion is not the present pool allocation . . . thereby effectively
rendering the February 28, 2023 Opinion an advisory one, but it
does not render the present appeal . . . moot.
Aplts.’ Mem. Concerning Lack of Mootness filed by Byrd/Shields at *3–4 (citations
omitted); Aplt.’s Mem. Concerning Lack of Mootness filed by Hossley-Embry at *3–
4. Finally, they argue that our opinion in In re Syngenta I did not address some of
their specific arguments raised in the Watts Guerra Settlement Appeals, including
issues of equal protection and due process.31
C. Lack of Subject-Matter Jurisdiction in this Case
After a review of the parties’ filings and the record from the district court, we
conclude that we lack subject-matter jurisdiction over the Watts Guerra Settlement
Appeals, so the appeals must be dismissed. Specifically, we conclude that (1) the
Objecting Firms lack standing to challenge the January 2021 Settlement Order and
(2) to the extent the Objecting Firms still challenge the January 2021 Disbursement
Orders, principles of standing and mootness make clear that we lack subject-matter
31
Although we did not ask Byrd/Shields or Hossley-Embry to discuss
whether the IRPA Pool Allocation Appeals were moot, they both asserted that the
IRPA Pool Allocation Appeals were not moot in part because, although the special
master relied on the original 12% allocation to the IRPA Pool, the district court
“effectively reallocated” additional funds to the IRPA Pool by approving the Watts
Guerra Settlement Agreement. See Aplts.’ Mem. Concerning Lack of Mootness filed
by Byrd/Shields at *2 n.1; Aplt.’s Mem. Concerning Lack of Mootness filed by
Hossley-Embry at *1 n.1. Accordingly, the Objecting Firms contend, the IRPA Pool
Allocation Appeals are not moot because “the June 04, 2021 Order awarding IRPA
fees cannot withstand scrutiny because it is based on pre-reallocation numbers.”
Aplts.’ Mem. Concerning Lack of Mootness filed by Byrd/Shields at *2 n.1; Aplt.’s
Mem. Concerning Lack of Mootness filed by Hossley-Embry at *2 n.1.
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jurisdiction over those challenges. Consequently, we lift the abatement of the
appeals and grant the motions to dismiss filed by Watts Guerra and Settlement Class
Counsel.
1. The January 2021 Settlement Order
The parties’ filings make clear that the core of the Objecting Firms’ challenge
is to the January 2021 Settlement Order, which—following the lines set out by the
district court’s earlier December 2020 Indicative Ruling—approved the Watts Guerra
Settlement Agreement and approved the transfer of approximately $7 million from
the Appellee Parties to Watts Guerra. However, despite their vigorous opposition to
the Watts Guerra Settlement Agreement, the Objecting Firms lack Article III standing
to appeal the district court’s approval of that agreement.32
We first explain why—in light of our standing precedents—the Objecting
Firms lack standing. We then explain why the Objecting Firms’ numerous arguments
to the contrary are unpersuasive. Notably, there is no suggestion in the parties’
filings that the standing analysis differs between Byrd/Shields and Hossley-Embry.
32
As discussed above, Article III’s case-or-controversy requirement also
requires that a case not be moot. But although we have previously expressed concern
that the Watts Guerra Settlement Appeals may have been mooted by In re Syngenta I,
because we conclude that the Objecting Firms lack standing, we need not decide
whether their challenges to the January 2021 Settlement Order are, in fact, moot. See
Valenzuela v. Silversmith, 699 F.3d 1199, 1205 (10th Cir. 2012) (“[A] federal court
has leeway to choose among threshold grounds for denying audience to a case on the
merits.” (quoting Sinochem Int’l Co. Ltd. v. Malay. Int’l Shipping Corp., 549 U.S.
422, 431 (2007))).
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Nor can we find any reason why it would. Consequently, we will discuss the
standing of the Objecting Firms together.
a. The Objecting Firms Lack Standing
The general principles of Article III standing discussed above apply with equal
force in the context of class action settlements and attorneys’ fees awards. Thus,
whether a party has standing to challenge an attorneys’ fees award (including in the
class action context) depends on whether they were actually aggrieved by the award.
See Tennille, 809 F.3d at 559; Glasser v. Volkswagen of Am., Inc., 645 F.3d 1084,
1088–89 (9th Cir. 2011).
For example, in Tennille, we recognized that, “[g]enerally, a settling defendant
in a class action has no interest in the amount of attorney fees awarded when those
fees are to be paid from the class recovery rather than the defendant’s coffers.” 809
F.3d at 559. Thus, in that case, we concluded that a defendant lacked standing to
challenge how the monies in a common settlement fund (that had already been
funded by the defendant) were allocated between class claimants and class counsel.
See id. at 557, 560; accord Lyngaas v. Curaden AG, 436 F. Supp. 3d 1019, 1027–28
(E.D. Mich. 2020) (noting that a defendant in a class action had no standing to object
to an “incentive award” that class counsel agreed to pay to a plaintiff).
In Tennille, we also rejected the defendant’s argument that it had a
“reversionary interest” in the funds because any amount of the common settlement
fund that remained after the awards of attorneys’ fees and the payments to the class
could—if it was not released to states who released the defendant from liability under
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their unclaimed-property laws—be used to satisfy outstanding claims or judgments
against the defendant. 809 F.3d at 560–61. We reasoned that any injury to this
purported reversionary interest would be “too attenuated from the award of attorney
fees” to support standing. Id. at 560.33
Further illustrating the proposition that the party asserting standing must
actually be aggrieved, it has been persuasively held that while class members have
standing to appeal an attorneys’ fees award if the class recovery and attorneys’ fees
are paid from a common fund, see Glasser, 645 F.3d at 1088; In re Synthroid Mktg.
Litig., 325 F.3d 974, 976 (7th Cir. 2003), they generally do not have standing to
appeal an attorneys’ fees award when the award comes from a separate fund, see
Glasser, 645 F.3d at 1088–89.34 As the Ninth Circuit explained in Glasser when
considering whether a class member had standing to appeal an attorneys’ fees award
paid directly by the class action defendant, “[i]f modifying the fee award would not
‘actually benefit the objecting class member,’ the class member lacks standing
because his challenge to the fee award cannot result in redressing any injury.” 645
33
In contrast, a panel of this Court concluded in an unpublished case that
the State of Utah had standing to appeal from the approval of a class action
settlement agreement when the agreement changed the beneficiary of a fund for
unclaimed monies from the State of Utah to the federal government. See Allred v.
ReconTrust Co., N.A., 787 F. App’x 994, 996 n.3 (10th Cir. 2019). We rely on this
decision and other unpublished decisions in our analysis only for their persuasive
value. See, e.g., United States v. Engles, 779 F.3d 1161, 1162 n.1 (10th Cir. 2015).
34
Although it is not relevant here, some courts have recognized a potential
exception to this general rule when it is alleged that class counsel obtained an
excessive fee in exchange for accepting an inadequate settlement for the class. See
Glasser, 645 F.3d at 1088 (describing the “constructive common fund” doctrine).
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F.3d at 1088 (quoting Knisley v. Network Assocs., Inc., 312 F.3d 1123, 1126 (9th Cir.
2002)). Along the same lines, those who object to a class action settlement have no
standing to challenge an attorneys’ fees award if, due to their status as objectors, they
would receive no pecuniary benefit from a decrease in the amount of attorneys’ fees
awarded. See Hill v. State Street Corp., 794 F.3d 227, 231 (1st Cir. 2015); Silverman
v. Motorola Sols., Inc., 739 F.3d 956, 957 (7th Cir. 2013).
Likewise—and as particularly relevant here—attorneys have standing to
challenge attorneys’ fees awards only if the fees that they would be entitled to would
be affected. To be sure, ordinarily the question of whether attorneys have standing to
challenge orders on attorneys’ fees is relatively straightforward. That is because the
district court’s decision on attorneys’ fees usually would directly impact the fees that
the appellant-attorneys are entitled to receive; consequently, they would have
standing. See In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prods.
Liability Litig., 914 F.3d 623, 640 (9th Cir. 2019) (concluding that law firms whose
requests for attorneys’ fees had been denied had “the most compelling case for
standing because they suffered an injury (deprivation of attorneys’ fees) that was
caused by the conduct complained of (the Fee Order) and would be redressed by
judicial relief”). In such cases—as in the challenge to the various fee allocation
orders in In re Syngenta I—the issue of standing is unlikely to come up.
But if, due to the unique circumstances of the case, an award of attorneys’ fees
would have no impact on the fees that a particular attorney could receive, that
attorney has no standing to challenge the award. For example, in Uselton v.
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Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 853 (10th Cir. 1993), the
district court awarded $507,500—29% of the common settlement fund—to class
counsel, and later awarded $14,427.49 to a separate counsel. Class counsel
challenged both decisions, and we concluded that they lacked standing to object to
the award to separate counsel. See id. at 854–55. We reasoned that the fee awarded
to the separate counsel “came out of the common fund remaining after payment of
class counsel’s fee. Only the plaintiff class, none of whose members is a party to this
appeal, could be considered aggrieved by that award.” Id. at 855.
The unifying strand throughout these cases is that an appellant—whether a
defendant, class member, objector, or attorney—must be actually aggrieved to
challenge an award of attorneys’ fees. In other words, they must receive a benefit if
the award would be vacated. Those principles control the outcome here. The
approximately $7 million “reallocated” by the Watts Guerra Settlement Agreement
went directly from the coffers of the Appellee Parties to the coffers of Watts Guerra.
As the Watts Guerra Settlement Agreement itself and the various orders of the
district court made clear, firms that had pending appeals and did not agree to the
Watts Guerra Settlement Agreement were not required to contribute to the fund at
all.35 See December 2020 Indicative Ruling, ECF No. 4524, at *2 (“[O]bjectors are
35
At times, the Objecting Firms’ briefing—whether intentionally or
carelessly—elides this critically important fact. For example, in their joint response
to the motions to dismiss, the Objecting Firms quote the district court’s January 2021
Settlement Order as: “[t]he Court reduces the awards to the Kansas Pool, the
Minnesota Pool, and Illinois Pool in the following amounts: . . . The Kansas Pool is
reduced by $2,966,333.67 . . . The Minnesota Pool is reduced by $1,582,333.33 . . [.]
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not included in the agreement . . ., and their fee awards would not be affected in any
way[] . . . .”); Suppl. Jt. App., Vol. I, at 5–6; see also Watts Guerra Settlement
Agreement, ECF No. 4485-1 at *1–2.36
the Illinois Pool is reduced by $2,500,000.” Jt. Suggestions in Opp’n to Aplees.’
Mots. to Dismiss at *6 (omissions in original). The omitted language, though, is
crucial. The relevant portion of the January 2021 Settlement Order actually reads:
(a) The Kansas Pool is reduced by $2,966,333.67, said reduction
to be shared pro rata according to awards from the Kansas Pool
among all firms awarded fees from the Pool except the law firms
of [Toups/Coffman] and Hossley-Embry LLP. (b) The Minnesota
Pool is reduced by $1,582,333.33, said reduction to be shared pro
rata according to awards from the Minnesota pool among all firms
awarded fees from the Minnesota Pool except the law firms of
Watts Guerra LLP; the Watts Guerra Group as that term is defined
in § 2 b.1 of the Agreement; the Shields Law Group; the Paul Byrd
Law Firm, PLLC; and Johnson Becker PLLC. And (c) the Illinois
Pool is reduced by $2,500,000, said reduction to be made from the
award to [Heninger Garrison Davis] . . . .
Suppl. Jt. App, Vol. I, at 5–6 (footnote omitted). The omitted language makes clear
that the fees received by Byrd/Shields and Hossley-Embry are entirely unchanged by
the Watts Guerra Settlement Agreement.
36
The district court emphasized this fact yet again in its recent December
2023 Disbursement Order, underscoring that because “the payment to Watts Guerra
was being made only by certain firms who agreed to the settlement,” the “objectors’
fee awards would not be affected” and they “lacked standing to object.” December
2023 Disbursement Order, ECF No. 4713, at *8. Again, although this order has not
been appealed, we may take judicial notice of it. See, e.g., United States v. Ahidley,
486 F.3d 1184, 1192 n.5 (10th Cir. 2007). And as we have underscored before, see
supra note 26, we are fully aware that “[s]tanding is determined as of the time the
action is brought.” Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir.
2005). As such, we do not rely on the district court’s December 2023 Disbursement
Order as proof—in whole or part—that the Objecting Firms lack standing. Rather,
we exercise our discretion to take judicial notice of this decision because it illustrates
(applying a broader historical lens) how the Objecting Firms’ arguments about the
Watts Guerra Settlement Agreement have been repeatedly rejected.
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Thus, although the Objecting Firms undoubtedly have an interest in their
shares of the $503 million award of attorneys’ fees, those shares remain unchanged
by the Watts Guerra Settlement Agreement. This puts the Objecting Firms in the
same position as the class counsel in Uselton, the defendant in Tennille, and the class
members in Glasser: rescinding the award of additional attorneys’ fees to Watts
Guerra would have no impact on their ultimate fee award.37 In other words, the
Objecting Firms have suffered no injury-in-fact and any redress that this Court could
offer by vacating the district court’s approval of the Watts Guerra Settlement
Agreement would have no impact whatsoever on the financial interests of
Byrd/Shields and Hossley-Embry.
This conclusion also accords with the general rule about standing to challenge
settlements, which is that “non-settling parties have no standing to challenge a
settlement.” New Mexico ex rel. State Eng’r v. Carson, 908 F.3d 659, 665 (10th Cir.
2018); see also In re Motor Fuel Temperature Sales Pracs. Litig., 872 F.3d 1094,
1110 (10th Cir. 2017) (noting that non-settling defendants generally lack standing to
challenge a settlement agreement because “they lack ‘a legally protected interest in
the settlement’ and therefore can’t satisfy Article III’s injury-in-fact requirement”
(quoting Weinman v. Fid. Cap. Appreciation Fund (In re Integra Realty Res., Inc.),
37
The Objecting Firms try to limit Tennille to its facts, observing that this
case involved an objecting defendant rather than an objecting attorney. See Jt.
Suggestions in Opp’n to Aplees.’ Mots. to Dismiss at *8. But the general principle of
Tennille—that a party whose financial interests are unaffected by an award of
attorneys’ fees has no standing to appeal that award—does not depend on the identity
of that party.
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262 F.3d 1089, 1102 (10th Cir. 2001))). Here, that is precisely what the Objecting
Firms are—non-settling parties.
And although there is a “limited exception” to this general rule “for non-
settling parties who can demonstrate that they will suffer ‘plain legal prejudice’ as a
result of the settlement,” Carson, 908 F.3d at 665 (quoting Weinman, 262 F.3d at
1102), that exception is irrelevant here. To fall within that exception, a party cannot
“show merely the loss of some practical or strategic advantage in litigating their
case”; they must instead show a more concrete prejudice, such as the loss of a legal
claim or cause of action. Weinman, 262 F.3d at 1102; see also In re Motor Fuel
Temperature Sales Pracs. Litig., 872 F.3d at 1110 (concluding that a non-party had
failed to show that it would suffer plain legal prejudice from a settlement agreement
when it averred only that the settlement agreement prejudiced its right to do business
as it historically had done and burdened its free-speech rights). Here, the Objecting
Firms have identified no concrete prejudice that they will suffer as a result of the
Watts Guerra Settlement Agreement. Nor do they suggest that they fall within this
limited exception to the general rule.
Thus, we conclude that the Objecting Firms lack standing to challenge the
district court’s approval of the Watts Guerra Settlement Agreement.
b. The Objecting Firms’ Counterarguments
As outlined above, the Objecting Firms have raised a number of overlapping
arguments as to why they do have standing to challenge the Watts Guerra Settlement
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Agreement and the district court’s January 2021 Settlement Order. We are
unpersuaded.
First, the Objecting Firms contend that they have standing because the Watts
Guerra Settlement Agreement denominates them as “Interested Parties.” But the
Watts Guerra Settlement Agreement merely gives Interested Parties the right to
object—it does not mean that approval of the agreement suffices as a concrete and
particularized injury to the Interested Parties for purposes of Article III. And the
Objecting Firms cite no authority supporting their argument that this provision could
give them standing.
Second, the Objecting Firms argue that they have an interest in the $503
million aggregate fee award, which suffices to give them standing. But any interest
that they have in the $503 million is necessarily limited to their share of the $503
million—which, as described above, would not be impacted by the Watts Guerra
Settlement Agreement. See Uselton, 9 F.3d at 854–55. They have no concrete
interest in funds that they are not entitled to receive. See id. And the Objecting
Firms’ reliance on In re Nineteen Appeals Arising Out of San Juan Dupont Plaza
Hotel Fire, 982 F.2d 603, 612 (1st Cir. 1992) is misplaced. Although the court in
that case noted that the appellant-attorneys had a “property interest in escrowed
funds,” that was because the appellant-attorneys would be “deprived . . . of money”
by the order at issue, which “invaded” the attorneys’ fees fund to make awards to the
steering committee. Id. Here, the approval of the Watts Guerra Settlement
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Agreement did not deprive the Objecting Firms of money in any way; they have no
claim to the diverted funds.
Third, the Objecting Firms argue that the district court’s January 2021
Settlement Order did more than just facilitate a settlement by diverting monies from
the Joint Appellees to Watts Guerra—they contend that it changed the district court’s
previous allocation among the four pools and resulted in an increase to the IRPA
Pool of $7 million that they could not share in. But, as the district court recognized,
this argument is based on a clear misreading of both the Watts Guerra Settlement
Agreement and the district court’s orders. The district court has repeatedly
emphasized that it was not modifying its earlier allocation among the pools, and that
it was not adding an additional $7 million to the IRPA pool; instead, the district
court—and the terms of the Watts Guerra Settlement Agreement—made clear that
certain firms’ awards from the geographic pools would be reduced and given to
Watts Guerra, which would treat its increase as if it had come from the IRPA Pool for
purposes of distribution. That is not the same as the district court adding an
additional $7 million to the IRPA pool or reworking the four-way split among the
pools.
On this point, the district court’s discussion of whether it even needed to
approve the Watts Guerra Settlement Agreement is illuminating. The district court
vacillated on whether it was necessary for it to weigh in on the settlement agreement,
before ultimately deciding that approving the Watts Guerra Settlement Agreement
was proper because “by altering at the front end the amounts distributed by the
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appointed administrator overseeing the attorney fee fund, the Court will be allowing
the agreed redistribution of fees to be accomplished in the most efficient manner,
while decreasing the likelihood of later delays or disputes concerning the payments.”
December 2020 Indicative Ruling, ECF No. 4524, at *4. This makes clear that all the
district court did in approving the Watts Guerra Settlement Agreement was to shift
money from the Appellee Parties to Watts Guerra for administrative purposes—not to
redraw the lines demarcated by the December 2018 Fee Allocation Order.
Fourth, the Objecting Firms seem to suggest that a “most favored nation
clause” in the Watts Guerra Settlement Agreement confers standing. The provision
at issue provides that the “Appellee Parties agree not to resolve any of the other
pending appeals for an amount equal to or greater than the” approximately seven
million received by Watts Guerra. Watts Guerra Settlement Agreement, ECF No.
4485-1, at *3 (footnote omitted). The “pending appeals” referred to in that provision
include, inter alia, the Fee Allocation Appeals numbered Nos. 19-3174 and 19-3178,
in which Byrd/Shields and Hossley-Embry, respectively, challenged various aspects
of the four-pool allocation system. See id. at *3 & n.3. According to the Objecting
Firms, the most favored nation clause “affects an interest [they] have in the
attorneys’ fee fund by limiting the amount they can recover in settlement” on those
appeals—in other words, the most favored nation clause effectively caps the amount
that they could receive in settlement on their Fee Allocation Appeals. Jt. Suggestions
in Opp’n to Aplees.’ Mots. to Dismiss at *12.
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There is, however, a substantial redressability problem with the Objecting
Firms’ argument. In particular, the relevant appeals are no longer “pending”—the
Objecting Firms lost the Fee Allocation Appeals mentioned in the most favored
nation clause (Nos. 19-3174 and 19-3178) in In re Syngenta I. Judgment in both of
those appeals has become final with the issuance of the mandate. Thus, even if the
most favored nation clause did theoretically impact the Objecting Firms’ ability to
settle those appeals when they were still ongoing, a decision at this stage reversing
the district court’s approval of the Watts Guerra Settlement Agreement could not
redress any of the alleged harm. Put differently, because it is now impossible for the
Objecting Firms to settle their Fee Allocation Appeals, any purported injury to their
ability to settle those appeals could not now confer standing on them—and thus could
not open the door (absent other jurisdictional hurdles) to our exercise of subject-
matter jurisdiction. See Brown, 822 F.3d at 1165–66.
Furthermore, we are doubtful in any event that the alleged injury—viz., the
effect that the most favored nation clause might have on a hypothetical settlement
agreement between the Objecting Firms and the Joint Appellees—could constitute
the necessary “concrete and imminent” injury-in-fact required to confer standing. It
is entirely speculative how an effective cap on the amount that the Objecting Firms
could receive in settlement could impact settlement negotiations. The speculative
nature of the injury is underscored in this case where, in fact, no settlement was
reached, and the Objecting Firms lost the appeals at issue.
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Although no circuit court has squarely addressed this question,38 a number of
district courts—albeit largely in unpublished opinions—have concluded that such a
clause is insufficient to confer constitutional standing. See Brown v. Esmor Corr.
Servs., No. Civ. 98-1282DRD, 2005 WL 1917869, at *10 (D.N.J. Aug. 10, 2005)
(unpublished); In re VMS Ltd. P’ship Secs. Litig., No. 90 C 2412, 1991 WL 134262,
at *4 (N.D. Ill. July 16, 1991) (unpublished); cf. In re Brand Name Prescription
Drugs Antitrust Litig., No. 94 C 897, 1996 WL 351180, at *2 (N.D. Ill. June 24,
1996) (unpublished) (suggesting, but not deciding, that a most favored nation clause
that purportedly made it more difficult to obtain a favorable settlement agreement
was insufficient to confer standing). Thus, even though we need not finally resolve
this issue in light of the redressability problem mentioned above, the conclusion
suggested by these courts—that the “injury” that such a clause inflicts on non-parties
to the agreement is too hypothetical and speculative to confer standing—is, at least at
first blush, persuasive. It also accords with our own precedents on when non-parties
can challenge settlement agreements, which require non-parties to show “plain legal
prejudice” from a settlement agreement. Weinman, 262 F.3d at 1102 (quoting
38
Watts Guerra cites a case from our sister circuit, In re Vitamins
Antitrust Class Actions, 215 F.3d 26, 29 (D.C. Cir. 2000), as rejecting the argument
that a most-favored nation clause can support standing. But the court in that case
concluded that the appellants lacked prudential standing—a distinct doctrine from
the constitutional standing issues present in this case. See In re Vitamins Antitrust
Class Actions, 215 F.3d at 29; see also Hill v. Warsewa, 947 F.3d 1305, 1309–10
(10th Cir. 2020) (discussing prudential standing). Prudential standing has not been
raised by any party in this appeal and, unlike constitutional standing, it is not
jurisdictional, see VR Acquisitions, LLC v. Wasatch Cnty., 853 F.3d 1142, 1146 n.4
(10th Cir. 2017), so we need not inquire into it sua sponte.
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Mayfield v. Barr, 985 F.2d 1090, 1093 (D.C. Cir. 1993)); In re Motor Fuel
Temperature Sales Pracs. Litig., 872 F.3d at 1110. That standard would seemingly
not be met by the speculative harm that the most favored nation clause purportedly
caused to the Objecting Firms.
Fifth, if the Objecting Firms intended to make an argument that they have
standing because of the impact that the Watts Guerra Settlement Agreement would
have on their entitlement to interest, they have waived that argument. Reading the
record generously, the Objecting Firms seemed to make this argument to the district
court. See Byrd/Shields’ and Hossley-Embry’s Am. Objs. & Suggestions in Opp’n to
the Jt. Mot. for Indicative Ruling, ECF No. 4492, at *8 (“[T]he Joint-Movants . . .
now have exerted authority to disburse the interest earned on the aggregate attorneys’
fee (interest which belongs to all law firms who were awarded common benefit,
including [Shields], [Byrd] and [Hossley-Embry]).”). But they do not develop—and
barely mention—that argument in their response to the motions to dismiss, only
briefly referencing the fact that the Watts Guerra Settlement Agreement affects the
$503 million, which was “in escrow earning interest.” Jt. Suggestions in Opp’n to
Aplees.’ Mots. to Dismiss at *10. Byrd/Shields and Hossley-Embry do not explain
how the Watts Guerra Settlement Agreement—which, on its face, only has the
potential to affect the earned interest to which the settling parties would be entitled—
could impact their share of the earned interest.
At bottom, the Objecting Firms bear the burden of showing that we have
jurisdiction over the appeals, and we are not obliged to take up their mantle. As
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such, we conclude that the issue is waived and decline to reach it. See Colo.
Outfitters Ass’n v. Hickenlooper, 823 F.3d 537, 552 (10th Cir. 2016) (“[T]he
plaintiffs don’t argue they satisfied the elements of constitutional standing. And we
decline to make that argument for them.”); Raley v. Hyundai Motor Co., Ltd., 642
F.3d 1271, 1275 (10th Cir. 2011) (“Where an appellant fails to lead, we have no duty
to follow. It is the appellant’s burden, not ours, to conjure up possible theories to
invoke our legal authority to hear her appeal.”); cf. United States v. Walker, 918 F.3d
1134, 1151 (10th Cir. 2019) (“[A]rguments may be deemed waived when they are
advanced . . . only ‘in a perfunctory manner.’” (quoting United States v. Wooten, 377
F.3d 1134, 1145 (10th Cir. 2004))).
Sixth, the Objecting Firms’ argument that they have suffered a procedural
injury that suffices to give them standing is unavailing. To begin, the very premise
of their argument is unsound: as explained above, the district court did not
contravene its earlier allocation system by reallocating $7 million to the IRPA Pool
or redrawing the lines of the four pools. Instead, it simply altered the ultimate
distribution of funds to effectuate the Watts Guerra Settlement Agreement. Thus,
there was no need for the district court to make additional findings as the Objecting
Firms contend were required under Rules 23(h), 52(a), and 54(d)(2). Nor, then, did
the district court violate its obligation to ensure that the attorneys’ fees award was
reasonable, as the Objecting Firms contend.
Moreover, even assuming that the procedural requirements of Rules 23(h),
52(a), and 54(d)(2) were violated, that alone is not enough to confer standing. A
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procedural injury must, in fact, be related to a concrete injury; “a bare procedural
violation, divorced from any concrete harm,” is insufficient. Spokeo, 578 U.S. at
341; see also id. at 342 (“Robins cannot satisfy the demands of Article III by alleging
a bare procedural violation. A violation of one of the [Fair Credit Reporting Act’s]
procedural requirements may result in no harm.”). But because the Objecting Firms’
share of the attorneys’ fees awards was entirely unaffected by the Watts Guerra
Settlement Agreement, a “bare procedural violation” is all the Objecting Firms can
allege.
Finally, despite bearing the burden to show standing, the Objecting Firms cite
no authority whatsoever for the assertion that bare violations of the procedural
requirements of Rules 23(h), 52(a), and 54(d)(2) are sufficient to give rise to standing
under a “procedural injury” theory even when an appellant is not actually impacted
by the district court’s ruling at issue.
For those reasons, we reject the Objecting Firms’ counterarguments and
conclude that the Objecting Firms lack standing to challenge the district court’s
January 2021 Settlement Order.
2. Challenge to the January 2021 Disbursement Orders
With the Objecting Firms’ challenge to the January 2021 Settlement Order
resolved, all that remains of the Watts Guerra Settlement Appeals is the Objecting
Firms’ challenge to the January 2021 Disbursement Orders.39 We must determine,
39
It is unclear whether the Objecting Firms intend in the Watts Guerra
Settlement Appeals to challenge the district court’s denial of their motions for
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then, if the latter challenge presents any justiciable issues. Although the parties have
focused on the approval of the Watts Guerra Settlement Agreement itself rather than
the disbursement of funds, logic as well as principles of standing and mootness
dictate that the answer is no.
This conclusion follows from the nature of the January 2021 Disbursement
Orders and the scope of the Objecting Firms’ challenge to them. Those orders simply
disbursed the funds previously allocated by the previous fee allocation orders—
specifically, the March 2019 Kansas Pool Allocation Order, the July 2019 Minnesota
Pool Allocation Order, the July 2019 Expense Order, and the November 2019 Illinois
Pool Allocation Order—as modified by the January 2021 Settlement Order approving
the Watts Guerra Settlement Agreement. In the district court, the Objecting Firms
had opposed this disbursement, arguing (1) the district court lacked jurisdiction to
reconsideration, see supra note 12. To the extent that they do so, we reject that
attempt. In In re Syngenta I, we concluded that (1) the Objecting Firms had
“effectively waived” their argument as to why the district court erred in denying their
motions for reconsideration by failing to include the issue in their opening briefs and
(2) noted that their arguments on the motion-for-reconsideration issue are “meritless
and irrelevant to our review, and they do nothing to cast doubt on the Kansas district
court’s fee allocation decisions.” 61 F.4th at 1223–24. The Objecting Firms have
not indicated that they believe their challenge to the denial of their motions for
reconsideration remains live after In re Syngenta I; they did not mention the issue at
all in any of their filings made after In re Syngenta I, including in their memoranda
on mootness. In fact, the only time that the Objecting Firms have mentioned the
motions for reconsideration at all in the Watts Guerra Settlement Appeals is when the
Objecting Firms mentioned the contrast between the denial of their motions for
reconsideration and the approval of the Watts Guerra Settlement Agreement. See Jt.
Suggestions in Opp’n to Aplees.’ Mots. to Dismiss at *3–5, *9. Particularly in light
of the fact that it is the Objecting Firms’ burden to assure us that we have
jurisdiction, we conclude that they may not raise a challenge to the denial of their
motions for reconsideration in the Watts Guerra Settlement Appeals.
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distribute the funds because there were pending appeals of the fee allocation orders;
(2) it would be difficult to claw back the distributed funds if the fee allocation
appeals were resolved in favor of the appellants; and (3) the disbursement was
predicated on approval of the improper Watts Guerra Settlement Agreement.
But since the Watts Guerra Settlement Appeals were filed, we affirmed all of
the fee allocation orders. See In re Syngenta I, 61 F.4th at 1170. As such, many of
the arguments that the Objecting Firms made against the January 2021 Disbursement
Orders—viz., that it would be difficult to claw back the distributed funds if the
Objecting Firms were successful in the Fee Allocation Appeals—are now stale. In
other words, we do not see how there can be a live controversy with respect to the
distribution of funds allocated by fee allocation orders when we have already
affirmed those orders. Any relief that we would grant in vacating the January 2021
Distribution Orders would thus not have any “effect in the real world” because those
orders merely effectuated the fee allocation orders which are final. Brown, 822 F.3d
at 1165–66 (quoting U.S. Dep’t of Agric., 414 F.3d at 1212). Therefore, the
challenge to the January 2021 Disbursement Orders is, at least in part, moot.
This conclusion is supported by the Objecting Firms’ memoranda concerning
mootness. Recall that we required Byrd/Shields and Hossley-Embry to explain why
the Watts Guerra Settlement Appeals were not moot in light of our resolution of the
Fee Allocation Appeals in In re Syngenta I. Their responsive memoranda explained
that the Watts Guerra Settlement Appeals were not moot because the challenge to the
reallocation of $7 million from the Appellee Parties to Watts Guerra was outside the
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scope of the Fee Allocation Appeals that we decided in In re Syngenta I. But even
though it is their burden to show that we have jurisdiction, the Objecting Firms did
not make any distinct argument that a live challenge remained to any other aspect of
the January 2021 Disbursement Orders. In fact, the only time that the Objecting
Firms’ mootness memoranda referred to the January 2021 Disbursement Orders at all
is when they were describing the orders being appealed from—and even there, those
orders were discussed only in the context of the Watts Guerra Settlement Agreement.
Specifically, the memoranda noted that the Objecting Firms appealed from the
District court’s Order/Judgment overruling the Shields/Byrd
Plaintiffs’ Counsel’s objections to the Motion for Disbursement
and Order/Judgment disbursing $444 million to pay attorney fees
and expenses where the disbursement occurred after the district
court rearranged money among the four pools, but without any
findings that its previous allocation among the four pools was
unreasonable and without any new findings as required by FED. R.
CIV. P. 23(h) that the reallocation (which awarded one law firm an
additional $7 million) was fair or equitable.
Aplts.’ Mem. Concerning Lack of Mootness filed by Byrd/Shields at *2; Aplt.’s
Mem. Concerning Lack of Mootness filed by Hossley-Embry at *2. Thus, the only
aspect of the January 2021 Disbursement Orders that the Objecting Firms themselves
mention is the fact that those orders incorporate the Watts Guerra Settlement
Agreement. They do not argue at all that any other aspect of their challenge to the
January 2021 Disbursement Orders is still viable.40 Again, we have no obligation to
follow where the appellants do not lead. See Raley, 642 F.3d at 1275.
40
One of the other arguments that the Objecting Firms originally made in
opposition to the disbursement of funds was that the district court lacked jurisdiction
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And as discussed above, Byrd/Shields and Hossley-Embry lack standing to
pursue their challenge to the underlying issue—the approval of the Watts Guerra
Settlement Agreement. Thus, to the extent that the appeal of the January 2021
Disbursement Orders challenges the disbursement of the $7 million shifted around by
the Watts Guerra Settlement Agreement, the Objecting Firms lack standing to bring
that challenge. When that reality is combined with the fact that there is no live
controversy about any other aspect of the January 2021 Disbursement Orders, it
becomes evident that the Objecting Firms’ challenge to those orders does not present
the current case or controversy that Article III requires. Thus, we lack subject-matter
jurisdiction.
because the fee allocation appeals were pending, so the district court should instead
have issued an indicative ruling under Federal Rule of Civil Procedure 62.1. The
district court rejected this argument, concluding that it had jurisdiction. Byrd/Shields
and Hossley-Embry do not mention this aspect of the district court’s order in the
memoranda they filed in response to our order to show cause as to why the Watts
Guerra Settlement Appeals were not moot—instead, they argue only that the Watts
Guerra Settlement Agreement was outside the scope of our review in In re Syngenta
I. Thus, Byrd/Shields and Hossley-Embry have failed to argue that the jurisdictional
issue they raised is still viable, and we will not make that argument for them. See
Raley, 642 F.3d at 1275 (“Where an appellant fails to lead, we have no duty to
follow. It is the appellant’s burden, not ours, to conjure up possible theories to
invoke our legal authority to hear her appeal.”); Patrick G. by and through Stephanie
G. v. Harrison Sch. Dist. No. 2, 40 F.4th 1186, 1214–15 (10th Cir. 2022) (“[The
plaintiffs] make no meaningful argument—supported by authority or even logic—for
why this claim is viable (i.e., not moot) . . . . At the end of the day, [the plaintiffs]
must convince us that jurisdiction is present, and we will not make arguments in this
respect for them.”).
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III. CONCLUSION
In sum, it is clear from the existing record that the Objecting Firms lack
standing to challenge the district court’s approval of the Watts Guerra Settlement
Agreement, which did not rework the attorneys’ fees allocation system and did not in
any way affect the Objecting Firms’ share of the funds. Moreover, there is no live
controversy with respect to any other aspect of the district court’s January 2021
Disbursement Orders. As such, we lack subject-matter jurisdiction over the entirety
of the Watts Guerra Settlement Appeals (Nos. 21-3021 and 21-3022).
In light of that conclusion, we agree with the Joint Appellees and Watts Guerra
that we must dismiss the Watts Guerra Settlement Appeals (Nos. 21-3021 and 21-
3022). We thus lift the abatement of the Watts Guerra Settlement Appeals, grant
the motions to dismiss filed by Watts Guerra and Settlement Class Counsel, and
dismiss these appeals.
More specifically, as to the Objecting Firms’ motion to lift the abatement and
enter a scheduling order, we grant it in part, deny it in part, and defer ruling on it
in part:
We grant the motion to the extent that it requests that we lift the abatement
of the Watts Guerra Settlement Appeals.
We deny (as moot) the motion insofar as it requests that we enter
scheduling orders in the Watts Guerra Settlement Appeals.
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And we defer ruling on the motion insofar as it requests that we lift the
abatement or take any other action in the IRPA Pool Allocation Appeals.41
41
To be clear, we do not today decide any aspect of the IRPA Pool
Allocation Appeals (Nos. 21-3110 and 21-3111) or the Contingent Cross-Appeal (No.
21-3121), including any pending motions in those appeals. Briefing in the IRPA
Pool Allocation Appeals and the Contingent Cross-Appeal remains abated, and the
Objecting Firms’ motion to lift the abatement and enter a scheduling order remains
under advisement with respect to the IRPA Pool Allocation Appeals. Nor do we
directly opine on the district court’s December 2023 Disbursement Order, which is
not the subject of any pending appeal.
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In re: Syngenta (Shields Law)
Combined Opinion