In Re: Deepwater Horizon ( 2014 )


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  •      Case: 13-30095       Document: 00512496788         Page: 1     Date Filed: 01/10/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    January 10, 2014
    No. 13-30095                        Lyle W. Cayce
    Clerk
    IN RE: DEEPWATER HORIZON — APPEALS OF THE ECONOMIC AND
    PROPERTY DAMAGE CLASS ACTION SETTLEMENT
    Appeals from the United States District Court
    for the Eastern District of Louisiana
    Before DAVIS, GARZA, and DENNIS, Circuit Judges.
    W. EUGENE DAVIS, Circuit Judge:
    This is an interlocutory appeal from the district court’s order certifying
    a class action and approving a settlement under Rule 23 of the Federal Rules
    of Civil Procedure. 1         The ongoing litigation before the district court
    encompasses claims against British Petroleum Exploration & Production, Inc.
    (“BP”) and numerous other entities. All these claims are related to the 2010
    explosion aboard the Deepwater Horizon, an offshore drilling rig, and the
    consequent discharge of oil into the Gulf of Mexico.
    Several of the original appellants in this case have moved to dismiss
    their appeals voluntarily, and we have granted those motions. We accordingly
    do not consider the arguments unique to those appellants. The three groups
    of appellants remaining before us—the “Allpar Objectors,” the “Cobb
    Objectors,” and the “BCA Objectors”—all filed objections with the district court
    opposing class certification and settlement approval based on various
    1See In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, on April 20, 2010,
    
    910 F. Supp. 2d 891
    (E.D. La. 2012).
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    provisions of Rule 23. The Objectors’ arguments were each addressed and
    rejected by the district court in its order of December 21, 2012. The Objectors
    have now appealed the district court’s order and ask this court to remand with
    instructions to decertify the class and withdraw approval from the Settlement
    Agreement.
    BP also now asks this court to vacate the district court’s order, although
    BP is not formally an appellant and, in fact, BP originally supported both class
    certification and settlement approval before the district court. In addition to
    its own set of new arguments under Rule 23, BP also raises additional
    arguments regarding the Article III standing of certain class members to make
    claims under the Settlement Agreement. Unlike the Objectors, however, BP
    argues that the Settlement Agreement can be salvaged if “properly construed
    and implemented.” In BP’s view, all of the problems that invalidate the class
    settlement under Article III and Rule 23 result from two Policy
    Announcements issued by the Claims Administrator, Patrick Juneau, who was
    appointed under the Settlement Agreement by the district court.
    As set forth below, we cannot agree with the arguments raised by the
    Objectors or BP. The district court was correct to conclude that the applicable
    requirements of Rule 23 are satisfied in this case. Additionally, whether or not
    BP’s arguments regarding Exhibits 4B and 4C are correct as a matter of
    contract interpretation, neither class certification nor settlement approval are
    contrary to Article III in this case. Accordingly, the district court’s order is
    affirmed.
    I.
    The factual background of this case is described in more extensive detail
    in the district court’s opinion, In re Oil Spill by Oil Rig Deepwater Horizon in
    Gulf of Mexico, on April 20, 2010, 
    910 F. Supp. 2d 891
    (E.D. La. 2012), and in
    a previous decision by a different panel of this court, In re Deepwater Horizon,
    2
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    732 F.3d 326
    (5th Cir. 2013) (“Deepwater Horizon I”).           As explained in
    Deepwater Horizon I, BP leased the Deepwater Horizon drilling vessel to drill
    its Macondo prospect off the Louisiana coast. On April 20, 2010, an exploratory
    well associated with the drilling vessel blew out. After the initial explosion
    and during the ensuing fire, the vessel sank, causing millions of barrels of oil
    to spill into the Gulf of Mexico. Numerous lawsuits were filed against a variety
    of entities, and many of these lawsuits were transferred by the Judicial Panel
    on Multidistrict Litigation to the United States District Court for the Eastern
    District of Louisiana pursuant to 28 U.S.C. § 1407.
    To satisfy its obligations under the Oil Pollution Act (“OPA”), BP initially
    established its own claims process and later funded the claims process
    administered by the Gulf Coast Claims Facility (“GCCF”) in order to begin
    paying out claims immediately rather than at the conclusion of litigation. BP
    then began negotiating a class settlement in February 2011 and jointly worked
    with the Plaintiffs’ Steering Committee (“PSC”) to transfer claims from the
    GCCF to a program supervised directly by the district court.
    On April 16, 2012, the PSC filed an Amended Class Action Complaint
    and a proposed Settlement Agreement for the district court’s preliminary
    approval. In accordance with the terms of the Settlement Agreement, the
    district court appointed Patrick Juneau as Claims Administrator of the
    settlement program. Although the Settlement Agreement had not yet received
    the district court’s final approval under Rule 23 of the Federal Rules of Civil
    Procedure, the Claims Administrator began reviewing claims left unresolved
    by the GCCF and processing new claims in June 2012 as provided for in Section
    4 of the parties’ Settlement Agreement, entitled “Implementation of the
    Settlement.”
    On August 13, 2012, after a preliminary hearing and the distribution of
    notifications to the absent members of the proposed class, BP and the PSC
    3
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    moved for final approval of the Settlement Agreement and certification of the
    class defined at paragraph 306 of the Amended Class Action Complaint. The
    Allpar Objectors, Cobb Objectors, and BCA Objectors all filed objections with
    the district court opposing class certification and settlement approval based on
    various provisions of Rule 23.      After conducting a fairness hearing on
    November 8, 2012, to consider the views of these Objectors and numerous
    others in accordance with Rule 23(e), the district court issued a final order
    certifying the class and approving the parties’ Settlement Agreement on
    December 21, 2012. The district court emphasized in particular that the
    “uncapped compensation” available under the Settlement Agreement would
    “ensure that a benefit paid to one member of the class will in no way reduce or
    interfere with a benefit obtained by another member.” 2          The Objectors
    appealed.
    BP supported the Settlement Agreement during the proceedings leading
    up to and including the district court’s order of December 21, 2012. BP now
    argues that two Policy Announcements issued by the Claims Administrator
    regarding the interpretation and application of the Settlement Agreement—
    both of which were adopted in orders by the district court—have subsequently
    brought the Settlement Agreement into violation of Rule 23, the Rules
    Enabling Act, and Article III of the U.S. Constitution.
    One of these two Policy Announcements by the Claims Administrator
    addresses the interpretation and application of the Settlement Agreement’s
    Exhibit 4C, entitled “Compensation Framework for Business Economic Loss
    Claims.” The Policy Announcement was endorsed on March 5, 2013, by the
    district court in an order that became the subject of the appeal heard by Judges
    Dennis, Clement, and Southwick in Deepwater Horizon I. The Settlement
    2   
    Id. at 918.
                                           4
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    Agreement’s Exhibit 4C establishes a formula for measuring the payments
    made to class members as compensation for business-related economic loss.
    The text of Exhibit 4C, however, does not explicitly identify the accounting
    methodology that the Claims Administrator should apply when interpreting
    this payment formula. BP argued before the other panel that the Claims
    Administrator’s interpretation of Exhibit 4C fails to reflect the parties’ intent
    to apply the accrual method of accounting, rather than the cash method, when
    evaluating the financial records of all prospective claimants.              The PSC
    disagreed and argued that the cash method of accounting could also be used by
    the Claims Administrator if a prospective claimant ordinarily used the cash
    method in its own business accounting and bookkeeping.
    After considering the parties’ arguments, a majority of the panel in
    Deepwater Horizon I remanded the case for further proceedings to reexamine
    the contractual interpretation questions arising under Exhibit 4C. 3              The
    district court issued an additional ruling on December 24, 2013, 4 which BP has
    appealed once again. 5
    The second Policy Announcement by the Claims Administrator
    addresses the interpretation and application of Exhibit 4B of the Settlement
    Agreement, entitled “Causation Requirements for Businesses [sic] Economic
    Loss Claims.” Whereas the Settlement Agreement’s Exhibit 4C established a
    formula for the measurement of economic loss, Exhibit 4B set forth criteria for
    prospective claimants to demonstrate to the Claims Administrator that their
    losses were caused by the Deepwater Horizon oil spill.                In the Policy
    Announcement, the Claims Administrator explained:
    3 Deepwater Horizon 
    I, 732 F.3d at 346
    .
    4 Order of December 24, 2013 (Rec. Doc. 12055) (“Responding to Remand of Business
    Economic Loss Issues”).
    5 BP’s Notice of Appeal (Rec. Doc. 12066).
    5
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    The Settlement Agreement does not contemplate that
    the Claims Administrator will undertake additional
    analysis of causation issues beyond those criteria that
    are specifically set out in the Settlement Agreement.
    Both Class Counsel and BP have in response to the
    Claims Administrator’s inquiry confirmed that this is
    in fact a correct statement of their intent and of the
    terms of the Settlement Agreement. The Claims
    Administrator will thus compensate eligible Business
    Economic Loss and Individual Economic Loss
    claimants for all losses payable under the terms of the
    Economic Loss frameworks in the Settlement
    Agreement, without regard to whether such losses
    resulted or may have resulted from a cause other than
    the Deepwater Horizon oil spill provided such
    claimants have satisfied the specific causation
    requirements set out in the Settlement Agreement. 6
    The record reflects that no party ever formally objected to this second Policy
    Announcement, and the district court adopted this Policy Announcement in an
    order docketed on April 9, 2013. That order was never independently appealed
    to this court. In the initial brief that BP filed in this appeal on August 30,
    2013, BP took “no position on the relevance vel non” of the second Policy
    Announcement with respect to the lawfulness of class certification and
    settlement approval in this case.
    BP also has never suggested that the Claims Administrator was
    incorrect to state that “[b]oth Class Counsel and BP have . . . confirmed that
    [the second Policy Announcement] is in fact a correct statement of their intent
    and of the terms of the Settlement Agreement.” In fact, the record contains an
    e-mail message from Judge Barbier to a number of participants in this
    litigation documenting a “discussion” on December 12, 2012, during which it
    6   See Declaration of Andrew T. Karron, Ex. 19-R, at 2 (Rec. Doc. 8963-71).
    6
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    was confirmed that “Counsel for BP and the PSC agree with the Claims
    Administrator’s objective analysis of causation with respect to his evaluation
    of economic damage claims,” as set forth in the second Policy Announcement. 7
    The record reflects no declared objection or disagreement with the district
    court’s e-mail. This e-mail was later cited in the district court’s order adopting
    the Policy Announcement on April 9, 2013.
    In the supplemental brief that BP filed in this appeal on October 11,
    2013, however, BP argued that the lawfulness of the Settlement Agreement
    was equally threatened by both Policy Announcements’ effects on the
    interpretation and application of Exhibits 4B and 4C. According to BP, both
    of these Policy Announcements by the Claims Administrator permit claimants
    without any actual injuries caused by the oil spill to participate in the class
    settlement and receive payments. According to BP, this result brings the class
    settlement into violation of Rule 23, the Rules Enabling Act, and Article III.
    II.
    Before we reach the questions regarding class certification and
    settlement approval under Rule 23, we must resolve the Article III question as
    a threshold matter of jurisdiction. 8 Questions of law relating to constitutional
    standing are reviewed de novo. 9 “Facts expressly or impliedly found by the
    district court in the course of determining jurisdiction are reviewed for clear
    error.” 10 “An appellate court may not consider new evidence furnished for the
    first time on appeal and may not consider facts which were not before the
    7 See 
    id., Ex. 19-V
    (Rec. Doc. 8963-75).
    8 Rivera v. Wyeth–Ayerst Labs., 
    283 F.3d 315
    , 319 (5th Cir. 2002).
    9 Bonds v. Tandy, 
    457 F.3d 409
    , 411 (5th Cir. 2006).
    10 Cole v. Gen. Motors Corp., 
    484 F.3d 717
    , 721 (5th Cir. 2007).
    7
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    district court at the time of the challenged ruling.” 11
    The abuse-of-discretion standard governs this court’s review of both the
    district court’s certification of the class and its approval of the settlement under
    Rule 23. 12 This court exercises de novo review as to whether the district court
    applied the correct legal standard. 13 Importantly, “Rule 23 grants courts no
    license to engage in free-ranging merits inquiries at the certification stage.
    Merits questions may be considered to the extent—but only to the extent—that
    they are relevant to determining whether the Rule 23 prerequisites for class
    certification are satisfied.” 14
    III.
    As explained in its supplemental brief, the crux of BP’s standing
    argument is that Article III “preclude[s] certification of a settlement class that
    includes members that have suffered no injury” or “who suffered no harm
    caused by the Deepwater Horizon incident.”                  In BP’s view, because an
    unidentified number of such individuals have received and may continue to
    receive payments under the class settlement, Article III requires this court to
    reverse the district court’s order of December 21, 2012.
    In two respects, BP is correct. First, the elements of Article III standing
    do indeed include both an injury in fact and a causal connection to the
    defendant’s conduct. 15 Second, under the previous decisions of this circuit,
    both of these elements must be present as a threshold matter of jurisdiction
    11 Quesada v. Napolitano, 
    701 F.3d 1080
    , 1084 n.9 (5th Cir. 2012); Ramchandani v.
    Gonzales, 
    434 F.3d 337
    , 339 n.1 (5th Cir. 2005); Theriot v. Parish of Jefferson, 
    185 F.3d 477
    ,
    491 n.26 (5th Cir. 1999).
    12 
    Cole, 484 F.3d at 723
    ; see Spence v. Glock, Ges.m.b.H., 
    227 F.3d 308
    , 310 (5th Cir.
    2000); In re Chicken Antitrust Litig. Am. Poultry, 
    669 F.2d 228
    , 238 (5th Cir. 1982).
    13 Mims v. Stewart Title Guar. Co., 
    590 F.3d 298
    , 304 (5th Cir. 2009).
    14 Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 
    133 S. Ct. 1184
    , 1194-95 (2013).
    15 See Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560-61 (1992).
    8
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    whenever a district court certifies a class under Rule 23. 16
    It is striking, however, that BP makes no attempt to identify a standard
    that we should apply to determine whether these elements are satisfied in this
    case. The frequent references in BP’s briefs to the “vast numbers of members
    who suffered no Article III injury” are disconnected from any discussion of
    pleading requirements, competent evidence, or the standards of proof by which
    the parties’ contentions are evaluated during different stages of litigation. In
    particular, BP’s arguments fail to explain how this court or the district court
    should identify or even discern the existence of “claimants that have suffered
    no cognizable injury” for purposes of the standing inquiry during class
    certification and settlement approval.
    In the following sections, therefore, we review the law governing the
    standard applicable to Article III questions in the specific context of Rule 23,
    and then turn to examine the facts of the present case. As explained below,
    although the relevant authorities suggest two possible approaches to Article
    III questions at the class certification stage, both of these approaches require
    us to reject BP’s standing argument. Whichever test is applied, therefore,
    Article III does not mandate reversal in this case.
    A.
    As the Supreme Court explained in Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560-61 (1992), the elements of Article III standing are constant
    throughout litigation: injury in fact, the injury’s traceability to the defendant’s
    conduct, and the potential for the injury to be redressed by the relief requested.
    As Lujan emphasized, however, the standard used to establish these three
    elements is not constant but becomes gradually stricter as the parties proceed
    through “the successive stages of the litigation.” In Lewis v. Casey, 
    518 U.S. 16
      See 
    Cole, 484 F.3d at 721-22
    ; 
    Rivera, 283 F.3d at 318-19
    .
    9
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    343, 358 (1996), the Supreme Court reaffirmed this formulation:
    Since they are not mere pleading requirements, but
    rather an indispensable part of the plaintiff’s case,
    each element of standing must be supported in the
    same way as any other matter on which the plaintiff
    bears the burden of proof, i.e., with the manner and
    degree of evidence required at the successive stages of
    the litigation. At the pleading stage, general factual
    allegations of injury resulting from the defendant’s
    conduct may suffice, for on a motion to dismiss we
    presume that general allegations embrace those
    specific facts that are necessary to support the claim.
    In response to a summary judgment motion, however,
    the plaintiff can no longer rest on such mere
    allegations, but must set forth by affidavit or other
    evidence specific facts, which for purposes of the
    summary judgment motion will be taken to be true.
    And at the final stage, those facts (if controverted)
    must be supported adequately by the evidence
    adduced at trial. 17
    Lujan and Lewis provide a useful blueprint, therefore, but do not
    comprehensively address all conceivable stages of litigation in which Article
    III standing may need to be addressed. This quoted passage does not explain,
    in particular, how courts are to evaluate standing for the purposes of class
    certification and settlement approval under Rule 23.
    In attempting to answer this question, courts have followed two
    analytical approaches. According to one approach, which has been endorsed
    by three Justices concurring in Lewis, 18 several circuits, and an influential
    17 
    Lewis, 518 U.S. at 358
    (quoting 
    Lujan, 504 U.S. at 561
    ) (alterations and internal
    quotation marks omitted).
    18 
    Id. at 395-96
    (Souter, J., concurring in part, dissenting in part, and concurring in
    the judgment; joined by Ginsburg, J., and Breyer, J.).
    10
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    treatise, 19 the inquiry hinges exclusively on the Article III standing of the
    “named plaintiffs” or “class representatives.”               This test requires courts to
    ignore the absent class members entirely:
    Unnamed plaintiffs need not make any individual
    showing of standing in order to obtain relief, because
    the standing issue focuses on whether the plaintiff is
    properly before the court, not whether represented
    parties or absent class members are properly before
    the court. Whether or not the named plaintiff who
    meets individual standing requirements may assert
    the rights of absent class members is neither a
    standing issue nor an Article III case or controversy
    issue but depends rather on meeting the prerequisites
    of Rule 23 governing class actions. 20
    In the years since Lewis, this approach to the standing inquiry during class
    certification has been followed by the Seventh, 21 Ninth, 22 and Third Circuits. 23
    Additionally, the Tenth Circuit has adopted this test at least in “class action[s]
    seeking prospective injunctive relief” and arguably also in class actions for
    damages as well. 24 As stated in a frequently cited decision by the Seventh
    19  W. RUBENSTEIN, A. CONTE & H. NEWBERG, NEWBERG ON CLASS ACTIONS § 2:3 (5TH
    ED.  2011) (“These passive members need not make any individual showing of standing
    because the standing issue focuses on whether the named plaintiff is properly before the
    court, not whether represented parties or absent class members are properly before the
    court.”).
    20 
    Lewis, 518 U.S. at 395-96
    (Souter, J., concurring in part, dissenting in part, and
    concurring in the judgment) (alterations and internal quotation marks omitted).
    21 Kohen v. Pac. Inv. Mgmt. Co. LLC, 
    571 F.3d 672
    , 676-78 (7th Cir. 2009).
    22 Stearns v. Ticketmaster Corp., 
    655 F.3d 1013
    , 1020-21 (9th Cir. 2011) (“On the
    contrary, our law keys on the representative party, not all of the class members, and has done
    so for many years . . . . In a class action, standing is satisfied if at least one named plaintiff
    meets the requirements . . . .” (internal quotation marks and citations omitted)).
    23 In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 
    148 F.3d 283
    , 306-
    07 (3d Cir. 1998) (“There is also ample evidence that each named party has suffered an ‘injury
    in fact’ . . . . Thus, the named plaintiffs satisfy Article III. The absentee class members are
    not required to make a similar showing . . . .”).
    24 DG ex rel. Stricklin v. Devaughn, 
    594 F.3d 1188
    , 1197-98 (10th Cir. 2010) (“First,
    only named plaintiffs in a class action seeking prospective injunctive relief must demonstrate
    11
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    Circuit, Kohen v. Pacific Investment Management Co. LLC, 
    571 F.3d 672
    , 677
    (7th Cir. 2009), it is “almost inevitable” that “a class will . . . include persons
    who have not been injured by the defendant’s conduct[] . . . because at the
    outset of the case many of the members of the class may be unknown, or if they
    are known still the facts bearing on their claims may be unknown.” According
    to Kohen, however, even this “inevitability” does not preclude Article III
    standing during the Rule 23 stage. 25
    Other circuit decisions have not necessarily ignored absent class
    members. According to these decisions, courts must ensure that absent class
    members possess Article III standing by examining the class definition.
    Importantly, however, this approach does not contemplate scrutinizing or
    weighing any evidence of absent class members’ standing or lack of standing
    during the Rule 23 stage. The most frequently cited formulation of this test is
    found in the Second Circuit’s decision in Denney v. Deutsche Bank AG, 
    443 F.3d 253
    , 263-64 (2d Cir. 2006): “We do not require that each member of a class
    submit evidence of personal standing. At the same time, no class may be
    certified that contains members lacking Article III standing. The class must
    therefore be defined in such a way that anyone within it would have
    standing.” 26    The Eighth Circuit has also applied this test, 27 as have the
    standing by establishing they are suffering a continuing injury or are under an imminent
    threat of being injured in the future. . . . ‘[A] class will often include persons who have not
    been injured by the defendant’s conduct. . . . Such a possibility or indeed inevitability does
    not preclude class certification.’” (quoting 
    Kohen, 571 F.3d at 677
    )).
    25 
    Kohen, 571 F.3d at 677
    .
    26 
    Denney, 443 F.3d at 263-64
    (citations omitted).
    27 Avritt v. Reliastar Life Ins. Co., 
    615 F.3d 1023
    , 1034 (8th Cir. 2010) (citing 
    Denney, 443 F.3d at 263-64
    ).
    12
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    Seventh 28 and Ninth Circuits, 29 despite both these latter circuits’ statements
    in other decisions that absent class members are irrelevant to the Article III
    inquiry. 30
    If this case actually required us to do so, it might not be a simple task to
    choose between the Kohen test and the Denney test based on this roughly even
    split of circuit authority. 31 It is also perhaps unclear whether our circuit has
    already adopted the Kohen test in Mims v. Stewart Title Guaranty Co., 
    590 F.3d 298
    (5th Cir. 2009).          Citing Kohen, we stated in Mims that “[c]lass
    certification is not precluded simply because a class may include persons who
    have not been injured by the defendant’s conduct.” 32 Although this particular
    statement was made in the context of analyzing Rule 23 rather than Article
    III, we elsewhere concluded in Mims that “[t]here is no serious question that
    the plaintiffs have standing” after explicitly analyzing only “the named
    plaintiffs.” 33
    28  Adashunas v. Negley, 
    626 F.2d 600
    , 603 (7th Cir. 1980) (“In order to state a class
    action claim upon which relief can be granted, there must be alleged at the minimum (1) a
    reasonably defined class of plaintiffs, (2) all of whom have suffered a constitutional or
    statutory violation (3) inflicted by the defendants.”).
    29 Mazza v. Am. Honda Motor Co., Inc., 
    666 F.3d 581
    , 594 (9th Cir. 2012) (citing
    
    Denney, 443 F.3d at 263-64
    ).
    30 See 
    Kohen, 571 F.3d at 677
    ; 
    Stearns, 655 F.3d at 1020-21
    .
    31 No clear guidance is provided by the Supreme Court’s decision with the greatest
    relevance to Article III questions arising due to a class settlement, Amchem Products, Inc. v.
    Windsor, 
    521 U.S. 591
    , 612-13 (1997). The Supreme Court implied in that case that a district
    court could not approve a class settlement containing class members who had not yet
    manifested any health problems from their past exposures to asbestos. If these “exposure-
    only” plaintiffs’ claims were not yet ripe, the Supreme Court suggested, then their inclusion
    in a class action would not be “in keeping with Article III constraints.” 
    Amchem, 521 U.S. at 612-13
    . The Supreme Court did not ultimately reach the ripeness question, however, because
    the asbestos-litigation class failed under a Rule 23 inquiry that the Supreme Court
    considered “logically antecedent to the existence of any Article III issues.” 
    Id. It is
    therefore
    unclear how the Supreme Court would eventually have approached its ripeness
    determination.
    32 See 
    Mims, 590 F.3d at 308
    .
    33 See 
    id. at 302.
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    Judge Clement’s opinion in Deepwater Horizon I, however, did not
    mention Mims, distinguished Kohen on its facts, and instead applied the
    Denney test. 34 In Part II of her opinion, which Judge Southwick did not join
    and from which Judge Dennis dissented, Judge Clement explained that absent
    class members’ standing is indeed relevant to jurisdiction over a class action.
    She also agreed with Denney that absent class members’ standing should be
    evaluated based on how a class is “defined” and on whether the absent class
    members are “alleged” to have colorable claims. 35                   As Judge Clement
    emphasized several times, when an absent class member is “unable to plead
    the causation element,” the absent class member’s “non-colorable claims do not
    constitute Article III cases or controversies.” 36 In Judge Clement’s view, if
    absent class members include persons who “concede” that they have no
    “causally related injury,” then a district court lacks jurisdiction to certify the
    class. 37 Judge Clement also agreed with Denney that Article III does not
    require a showing that an absent class member “can prove his case” at the Rule
    23 stage, so long as the absent class member “can allege standing.” 38
    This case is not a vehicle, however, for us to choose whether Kohen or
    Denney articulated the correct test. Nor does this case require us to decide
    whether Mims has already adopted the Kohen test as a matter of Fifth Circuit
    law.   For the purposes of the present case, these questions are entirely
    34 See Deepwater Horizon 
    I, 732 F.3d at 340-42
    , 344 & n.12 (describing the “judicial
    role to ensure that class definitions comply with statutory and constitutional strictures”
    (emphasis added)).
    35 
    Id. at 340-42
    (quoting 
    Adashunas, 626 F.2d at 603
    , and 
    Denney, 443 F.3d at 263
    -
    64). Judge Clement also cited frequently to Judge Jordan’s dissent in Sullivan v. DB
    Investments, Inc., 
    667 F.3d 273
    , 346 (3d Cir. 2011) (en banc) (Jordan, J., dissenting), which
    proposed a test that could be applied to “a class complaint requesting relief” without looking
    to any additional items of proof.
    36 Deepwater Horizon 
    I, 732 F.3d at 340-42
    .
    37 See 
    id. at 343.
           38 
    Id. at 340-42
    .
    14
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    academic because BP’s standing argument fails under both the Kohen test and
    the Denney test. As explained in the next section, both the named plaintiffs
    and the absent class members contemplated by the class definition include only
    persons and entities who can allege causation and injury in accordance with
    Article III.
    B.
    Looking first to the Kohen test for standing, it is clear that the class
    action in this case survives Article III because the named plaintiffs have each
    alleged injury in fact, traceability to the defendant’s conduct, and
    redressability by the relief requested. 39 The named plaintiffs set forth their
    allegations in the operative pleading in this case, the Amended Class Action
    Complaint for Private Economic Losses and Property Damages, which was
    filed with the district court on May 2, 2012. 40 The Amended Class Action
    Complaint explains that “Plaintiffs are individuals and/or entities who have
    suffered economic and property damages as a result of the Deepwater Horizon
    Incident.” 41 This document thereafter identifies each of the fifteen named
    plaintiffs individually and explains in detail how each has suffered economic
    damages due to the “lack of adequate supplies of seafood to process and sell,”
    a “severe reduction in tourist-related bookings,” a drop in “demand for marine
    tourism,” “a loss on the sale of . . . residential property,” and numerous other
    types of economic injury and property damage. 42
    Each one of these named plaintiffs satisfies the elements of standing by
    identifying an injury in fact that is traceable to the oil spill and susceptible to
    redress by an award of monetary damages. Under the Kohen test, that is the
    39 See 
    Kohen, 571 F.3d at 677
    .
    40 See In re Oil 
    Spill, 910 F. Supp. 2d at 902
    (citing Amended Class Action Complaint
    (Rec. Doc. 6412)).
    41 Amended Class Action Complaint 6-13 (Rec. Doc. 6412) (emphasis added).
    42 
    Id. 15 Case:
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    No. 13-30095
    end of the inquiry. As explained in Cole v. General Motors Corp., 
    484 F.3d 717
    (5th Cir. 2007), which addressed the Article III standing of named plaintiffs
    during class certification under Rule 23, we found it “sufficient for standing
    purposes that the plaintiffs seek recovery for an economic harm that they
    allege they have suffered.” 43 At the Rule 23 stage, Cole provides that “a federal
    court must assume arguendo the merits of [each named plaintiff’s] legal
    claim.” 44 Indeed, BP has never argued that any of the named plaintiffs lack
    Article III standing. Accordingly, there is no question that the Kohen test is
    satisfied in this case. 45
    Applying the Denney test to the definition of the class proposed for
    certification, we come to the same conclusion. The Class Definition is set forth
    in paragraph 306 of the Amended Class Action Complaint and is reproduced
    in its entirety in Appendix B of the district court’s order. Under the plain terms
    of the Class Definition, a “person or entity” is included “in the Economic Class
    only if their Claims meet the descriptions of one or more of the Damage
    Categories described” in Section 1.3.1 of the Class Definition.               Of these
    “Damage Categories,” the only category that BP has identified as giving rise to
    Article III difficulties is the “Economic Damage Category” under Section
    1.3.1.2. 46 This section of the Settlement Agreement, however, explicitly limits
    claims to those based on “[l]oss of income, earnings or profits suffered by
    Natural Persons or Entities as a result of the DEEPWATER HORIZON
    INCIDENT,” subject to exclusions for participants in certain industries. 47 As
    contemplated by the Class Definition, therefore, the class contains only
    43  
    Cole, 484 F.3d at 723
    (emphasis added).
    44  
    Id. (quoting Parker
    v. District of Columbia, 
    478 F.3d 370
    , 377 (D.C. Cir. 2007)
    (internal quotation marks omitted)).
    45 See 
    Kohen, 571 F.3d at 677
    .
    46 See In re Oil 
    Spill, 910 F. Supp. 2d at 965-67
    .
    47 
    Id. (emphasis added).
    16
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    No. 13-30095
    persons and entities that possess Article III standing.
    Even if the “definition” of the class were interpreted for the purposes of
    the Denney test to include the entire Amended Class Action Complaint, rather
    than just the provisions set forth in paragraph 306, the result would be no
    different.   The Amended Class Action Complaint includes numerous
    allegations of injuries to the absent class members caused by the oil spill. For
    example, the sections of the Amended Class Action Complaint directed toward
    the satisfaction of the Rule 23(a) requirements for numerosity, commonality,
    and typicality each emphasize causation and actual damages with respect to
    each member of the class:
    The Class consists of tens of thousands of individuals
    and businesses that have been economically damaged
    by the spill . . . . Each Class member’s claim arises
    from the same course of planning, decisions, and
    events, and each Class member will make similar legal
    and factual arguments to prove Defendants’
    outrageous, willful, reckless, wanton, and deplorable
    conduct and liability . . . . The claims in this Second
    Amended Master Class Action Complaint are typical
    of the claims of the E&PD Class in that they represent
    the various types of non-governmental economic losses
    and property damage caused by the Deepwater
    Horizon Incident. 48
    Accordingly, using Judge Clement’s formulation of the standard, the class in
    this case does not include any members who “concede” that they lack any
    “causally related injury.” 49 This ends the Article III inquiry under the Denney
    test, which does “not require that each member of a class submit evidence of
    personal standing” 50 so long as every class member contemplated by the class
    48 Amended Class Action Complaint 108-10 (Rec. Doc. 6412).
    49 Deepwater Horizon 
    I, 732 F.3d at 343
    .
    50 
    Denney, 443 F.3d at 263
    .
    17
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    No. 13-30095
    definition “can allege standing.” 51
    Our decision in Cole confirms that “it is sufficient for standing purposes
    that the plaintiffs seek recovery for an economic harm that they allege they
    have suffered” because for each class member we “must assume arguendo the
    merits of his or her legal claim” at the Rule 23 stage. 52                      Although Cole
    addressed the standing of named plaintiffs rather than absent class members,
    it would make no sense to apply a higher evidentiary standard to absent class
    members than to named plaintiffs. We also stated in In re Rodriguez, 
    695 F.3d 360
    , 370 (5th Cir. 2012), that even the absent class members are “linked” under
    Rule 23 to the “common complaint, and the possibility that some may fail to
    prevail on their individual claims will not defeat class membership.” Whether
    the Kohen test or the Denney test is applied, therefore, we find that Article III
    and the Rules Enabling Act 53 are satisfied in this case.
    51  Deepwater Horizon 
    I, 732 F.3d at 340-42
    .
    52  
    Cole, 484 F.3d at 721-23
    (emphasis added) (quoting 
    Parker, 478 F.3d at 377
    (internal
    quotation marks omitted)).
    53 Under the Rules Enabling Act, 28 U.S.C. § 2072(b), “[t]he Federal Rules of Civil
    Procedure cannot work as substantive law.” Klier v. Elf Atochem N. Am., Inc., 
    658 F.3d 468
    ,
    474 (5th Cir. 2011). In this case, the substantive law is neither Rule 23 nor any other Federal
    Rule of Civil Procedure, but the OPA and federal maritime law, under which the named
    plaintiffs raised a variety of different claims in the Amended Class Action Complaint.
    Despite making several references to the Rules Enabling Act in their supplemental briefs,
    neither BP nor the Objectors have contested this basic point. The Rules Enabling Act
    therefore is not violated. See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 
    559 U.S. 393
    , 406-08 (2010) (plurality opinion) (“A class action, no less than traditional joinder
    (of which it is a species), merely enables a federal court to adjudicate claims of multiple
    parties at once, instead of in separate suits. And like traditional joinder, it leaves the parties’
    legal rights and duties intact and the rules of decision unchanged.”); 
    id. at 431-36
    (Stevens,
    J., concurring in part and concurring in the judgment) (agreeing that Rule 23 does not violate
    the Rules Enabling Act so long as no substantive state law is displaced in a diversity case);
    Sullivan v. DB Invs., Inc., 
    667 F.3d 273
    , 312-13 (3d Cir. 2011) (en banc) (concluding that a
    district court’s “approval of the parties’ settlement should not be considered a recognition or
    expansion of substantive rights” under the Rules Enabling Act).
    18
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    C.
    In concluding this analysis, we note the possibility that the application
    of a stricter evidentiary standard might reveal persons or entities who have
    received payments under Exhibits 4B and 4C and yet have suffered no loss
    resulting from the oil spill. But courts are not authorized to apply such a
    standard for this purpose at the Rule 23 stage. Under Lujan and Lewis, of
    course, this is precisely what the district judge must do at summary judgment
    and what the finder of fact must do at trial. 54 Without ever saying so explicitly,
    BP implies that we should also resolve Article III questions at the Rule 23 stage
    by looking to evidence of certain prospective claimants’ standing. That is, BP
    cites to items of evidence—in particular, a series of declarations by economists,
    Henry H. Fishkind, A. Mitchell Polinsky, J. Richard Dietrich, and Hal Sider.
    These economists’ declarations, in BP’s view, demonstrate that the Claims
    Administrator has awarded payments under his interpretations of Exhibits 4B
    and 4C to persons and entities that likely were not injured by the Deepwater
    Horizon incident. It is unclear from BP’s submissions during this appeal
    whether BP asks us to evaluate this proof by applying a summary-judgment
    standard or a preponderance-of-the-evidence standard. Ultimately, we can do
    neither in this case.
    With respect to the evidence cited by BP regarding these claimant’s
    standing, we emphasize two points. First, and most obviously, none of this
    evidence was ever considered by the district court prior to December 21, 2012,
    the date when the district court certified the class and approved the
    settlement. 55 The cited versions of these economists’ declarations were filed
    54 Lewis v. 
    Casey, 518 U.S. at 358
    (citing 
    Lujan, 504 U.S. at 560-61
    ).
    55  The record contains an e-mail message from Judge Barbier documenting a
    “discussion” on December 12, 2012, during which it was confirmed that “Counsel for BP and
    19
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    No. 13-30095
    with the district court on March 20, 2013, and none of them is dated earlier
    than January 15, 2013. Even though standing is a jurisdictional matter, any
    “facts expressly or impliedly found by the district court” in the course of
    “making its jurisdictional findings” must be accepted on appeal unless they are
    clearly erroneous. 56 Additionally, under the settled law of this circuit, “an
    appellate court may not consider new evidence furnished for the first time on
    appeal and may not consider facts which were not before the district court at
    the time of the challenged ruling.” 57              We therefore cannot consider the
    economists’ declarations cited by BP or draw any conclusions from them.
    Second, BP has cited no authority—and we are aware of none—that
    would permit an evidentiary inquiry into the Article III standing of absent
    class members during class certification and settlement approval under Rule
    23. It is true that a district court may “probe behind the pleadings” when
    examining whether a specific case meets the requirements of Rule 23, such as
    numerosity, commonality, typicality, and adequacy. 58 But the Supreme Court
    cautioned in Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 
    133 S. Ct. 1184
    , 1194-95 (2013), that “Rule 23 grants courts no license to engage in
    free-ranging merits inquiries at the certification stage. Merits questions may
    the PSC agree with the Claims Administrator’s objective analysis of causation with respect
    to his evaluation of economic damage claims,” as set forth in the second Policy
    Announcement. See Declaration of Andrew T. Karron, Ex. 19-V (Rec. Doc. 8963-75). But no
    party has suggested that any of the expert declarations that have been presented to this court
    were considered by Judge Barbier either during this “discussion” or at any time previously.
    In fact, given that BP and the named plaintiffs were both still in agreement with the Claims
    Administrator on that date, it seems more likely that the expert declarations were not shared
    with Judge Barbier.
    56 
    Cole, 484 F.3d at 721
    ; Pederson v. La. State Univ., 
    213 F.3d 858
    , 869 (5th Cir. 2000).
    57 
    Quesada, 701 F.3d at 1084
    n.9; 
    Ramchandani, 434 F.3d at 339
    n.1; 
    Theriot, 185 F.3d at 491
    n.26.
    58 Wal-Mart Stores, Inc. v. Dukes, 
    131 S. Ct. 2541
    , 2551 (2011) (quoting Gen. Tel. Co.
    of Sw. v. Falcon, 
    457 U.S. 147
    , 160 (1982)).
    20
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    be considered to the extent—but only to the extent—that they are relevant to
    determining whether the Rule 23 prerequisites for class certification are
    satisfied.”
    Relevant circuit authority confirms the inappropriateness of reviewing
    evidence of absent class members’ standing at the Rule 23 stage. Mims and
    Kohen suggest that such evidence is simply irrelevant, inasmuch as “[c]lass
    certification is not precluded simply because a class may include persons who
    have not been injured by the defendant’s conduct.” 59             Denney and Judge
    Clement’s opinion in Deepwater Horizon I, for their part, also “do not require
    that each member of a class submit evidence of personal standing” 60 so long as
    the class is defined so that every absent class member “can allege standing.” 61
    Our older decision in Cole confirms that it would be improper to look for proof
    of injuries beyond what the claimants identified in the class definition can
    “allege they have suffered” at this stage. 62 Despite BP’s urging, therefore, even
    a district court could not consider the evidence regarding absent class
    members’ standing at the Rule 23 stage.
    Of course, had the class in this case been certified under Rule 23 for
    further proceedings on the merits rather than for settlement, the district court
    might ultimately have had occasion to apply a stricter evidentiary standard.
    As the district court said explicitly, “certain causation issues . . . would have to
    be decided on an individual basis were the cases not being settled,” including
    “for example, the extent to which the Deepwater Horizon incident versus other
    59  See 
    Mims, 590 F.3d at 302
    , 308.
    60  
    Denney, 443 F.3d at 263-64
    .
    61 Deepwater Horizon 
    I, 732 F.3d at 340-42
    .
    62 See 
    Cole, 484 F.3d at 721-23
    (emphasis added) (quoting 
    Parker, 478 F.3d at 377
    (internal quotation marks omitted)).
    21
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    factors caused a decline in the income of an individual or business.” 63 As early
    as October 6, 2010, the district court anticipated that “issues relating to
    damages” could and would be “severed and tried separately” from other issues
    relating to liability, 64 in accordance with this court’s previous case law 65 and
    Rule 23(c)(4). 66 In its submissions to the district court, BP also contemplated
    the possibility of “a trial of an economic damage test case” and “presentations
    of proof and comparative responsibility.” 67             Such proceedings would have
    provided opportunities for BP to inquire more deeply into individual claimants’
    evidence of Article III standing under the applicable evidentiary standards
    described in Lujan and Lewis. 68 In the absence of any motion for summary
    judgment or trial predicated upon the Article III standing of those absent class
    members, however, it would be premature and improper for a court to apply
    evidentiary standards corresponding to those later stages of litigation.
    Indeed, it would make no practical sense for a court to require evidence
    of a party’s claims when the parties themselves seek settlement under Rule
    23(e). Logically, requiring absent class members to prove their claims prior to
    settlement under Rule 23(e) would eliminate class settlement because there
    would be no need to settle a claim that was already proven. Such a rule would
    63  In re Oil 
    Spill, 910 F. Supp. 2d at 924
    .
    64  Scheduling Order of October 6, 2010, at 3 (Rec. Doc. 473).
    65 This court has previously “approved mass tort or mass accident class actions when
    the district court was able to rely on a manageable trial plan—including bifurcation” of “class-
    wide liability issues” and issues of individual damages. Steering Comm. v. Exxon Mobil
    Corp., 
    461 F.3d 598
    , 603 (5th Cir. 2006) (analyzing Watson v. Shell Oil Co., 
    979 F.2d 1014
    ,
    1017-18, 1024 & n.9 (5th Cir. 1992)).
    66 See Butler v. Sears, Roebuck & Co., 
    727 F.3d 796
    , 800 (7th Cir. 2013) (“[A] class
    action limited to determining liability on a class-wide basis, with separate hearings to
    determine—if liability is established—the damages of individual class members, or
    homogeneous groups of class members, is permitted by Rule 23(c)(4) and will often be the
    sensible way to proceed.”).
    67 Defs.’ Memorandum of October 6, 2010, at 6, 8 (Rec. Doc. 488).
    68 
    Lewis, 518 U.S. at 358
    (citing 
    Lujan, 504 U.S. at 560-61
    ).
    22
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    No. 13-30095
    thwart the “overriding public interest in favor of settlement” that we have
    recognized “[p]articularly in class action suits.” 69           The legitimacy of class
    settlements is reflected not only in Rule 23(e) but also in the special regime
    that Congress has created to govern class settlements under 28 U.S.C. §§ 1711-
    15. Through the procedural mechanism of a class settlement, defendants “are
    entitled to settle claims pending against them on a class-wide basis even if a
    court believes that those claims may be meritless, provided that the class is
    properly certified under Rules 23(a) and (b) and the settlement is fair under
    Rule 23(e).” 70 By entering into class-wide settlements, defendants “obtain[]
    releases from all those who might wish to assert claims, meritorious or not”
    and protect themselves from even those “plaintiffs with non-viable claims
    [who] do nonetheless commence legal action.” 71
    This is certainly not to say, on the other hand, that the Claims
    Administrator must afford the same deference to the absent class members’
    allegations that we apply when addressing Article III issues at the Rule 23
    stage. Naturally, the Claims Administrator is not bound to apply the Denney
    test or the Kohen test but must follow whatever instructions are set forth in
    Exhibit 4B, Exhibit 4C, and the other provisions of the parties’ detailed
    Settlement Agreement. In his concurrence to Deepwater Horizon I, Judge
    Southwick succinctly observed that Exhibits 4B and 4C created an evidentiary
    framework intended to “simplif[y] the claims process by making proof of loss a
    69 Kincade v. Gen. Tire & Rubber Co., 
    635 F.2d 501
    , 507 (5th Cir. 1981) (quoting Cotton
    v. Hinton, 
    559 F.2d 1326
    , 1331 (5th Cir. 1977)); see also Smith v. Crystian, 91 F. App’x 952,
    955 (5th Cir. 2004) (acknowledging the “strong judicial policy favoring the resolution of
    disputes through settlement” and affirming both class certification and settlement approval
    (internal citation and quotation marks omitted)).
    70 In re Am. Int’l Grp., Inc. Sec. Litig., 
    689 F.3d 229
    , 243-44 (2d Cir. 2012).
    71 
    Sullivan, 667 F.3d at 310
    .
    23
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    substitute for proof of factual causation.” 72 The parties now vigorously dispute
    how this evidentiary framework was intended to work. For its part, BP has
    argued in its subsequent submissions to the Deepwater Horizon I panel that
    “the Claims Administrator must make a threshold determination whether the
    claimant has suffered loss as a result of the spill” and that under footnote 1 of
    Exhibit 4B this “threshold determination must be made before applying the
    causation criteria outlined in Exhibit 4B.”            The named plaintiffs hold a
    different view.
    The evidentiary standard to be applied by the Claims Administrator,
    however, is not a matter of Article III standing. It is a question of interpreting
    the Settlement Agreement and applying it to each individual claim, and we are
    not called upon to address those issues in this appeal.
    IV.
    We turn now to examine the Rule 23 arguments raised by BP, the Allpar
    Objectors, the Cobb Objectors, and the BCA Objectors. In addressing Rule 23,
    BP and the Allpar Objectors have made nearly identical arguments. They
    challenge class certification and settlement approval under a variety of
    provisions of Rule 23 based on the same central premise discussed above in the
    context of Article III—that a class cannot be certified when it includes persons
    who have not actually been injured. The Cobb Objectors also expressly adopt
    BP’s arguments by reference and add only a single additional argument.
    According to the Cobb Objectors, the named plaintiffs did not adequately
    represent the class under Rule 23(a)(4) because there were no subclasses
    formed to represent residents of different states, particularly residents of
    Texas, and no subclass formed to represent those potential claimants who
    72Deepwater Horizon 
    I, 732 F.3d at 346
    (Southwick, J., concurring in Parts I and III
    of the majority opinion).
    24
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    No. 13-30095
    would have been “better off under the GCCF claims process.” As explained
    below, the objections of the Allpar Objectors, the Cobb Objectors, and BP have
    no merit.
    For their part, the BCA Objectors—who refer to themselves in this way
    because they are represented by Brent Coon & Associates—were among the
    12,970 objectors who “failed to comply with the requirements of the
    Preliminary Approval Order in that they failed to provide written proof of class
    membership and, therefore, forfeited and waived their objections.” 73                    The
    district court’s Preliminary Approval Order provided that any class member
    who wished to object to the Settlement Agreement must do so in writing by
    August 31, 2012, and include “written proof of class membership” with his or
    her objection, “such as proof of residency, ownership of property and the
    location thereof, and/or business operation and the location thereof.” 74 As the
    record shows, the BCA Objectors’ objection was filed timely but was
    incomplete. This submission included thousands of claimants’ names listed in
    a chart spanning more than 150 pages but lacked even a single claimant’s proof
    of residency, property ownership, or business operation. 75
    On November 7, 2012, the night before the fairness hearing and two
    months after the deadline for filing written objections, the BCA Objectors filed
    a Motion for Leave to File Reply Memorandum Late and in Excess of Ordinary
    73 See In re Oil 
    Spill, 910 F. Supp. 2d at 936
    (citing Report on Objections to and Opt-
    Outs from the Economic and Property Damages Settlement as Amended on May 2, 2012 (Rec.
    Doc. 8001)).
    74 
    Id. at 935-36
    (internal quotation marks omitted).
    75 See 
    id. (citing Report
    on Objections to and Opt-Outs from the Economic and Property
    Damages Settlement as Amended on May 2, 2012 (Rec. Doc. 8001)); see also Report on
    Objections to and Opt-Outs from the Economic and Property Damages Settlement as
    Amended on May 2, 2012, Ex. L, at 3-538 (Rec. Doc. 8001-18) (identifying each one of the
    11,245 objectors represented by Brent Coon & Associates as lacking “Standing Proof”);
    Plaintiffs Represented by Brent Coon & Associates’ Motion in Opposition and Objections to
    the Economic Class Settlement, Ex. 1 (Rec. Doc. 7224-2).
    25
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    Page Limitations.         On November 8, 2012—the morning of the fairness
    hearing—the district court issued an order striking this filing for untimeliness.
    The result of this, according to the district court’s order of December 21, 2012,
    was that the BCA Objectors’ challenges to class certification and settlement
    approval were therefore forfeited and waived. In the notice of appeal filed with
    this court, the BCA Objectors have once again appended a lengthy list
    including thousands of names listed alphabetically on a chart, but no written
    proof of residency, property ownership, or business operation.
    The district court’s instruction to provide proof of class membership was
    a legitimate exercise of its discretion under Rule 23(d)(1)(A) and Rule
    23(d)(1)(C) to “issue orders that[] . . . determine the course of proceedings” and
    “impose conditions . . . on intervenors” in a class action. As the Supreme Court
    recognized in Gulf Oil Co. v. Bernard, 
    452 U.S. 89
    (1981), a district court
    presiding over a class action “has both the duty and the broad authority” to
    enter such orders to minimize “the potential for abuse” during such
    proceedings. 76 Although a district court’s discretion under Rule 23(d) is “not
    unlimited,” 77 the district court plainly acted within its discretion in finding
    that the BCA Objectors forfeited and waived their objections by disobeying the
    reasonable requirements of the Preliminary Approval Order. Moreover, in an
    unpublished case with equivalent facts, Feder v. Electronic Data Systems
    Corp., 248 F. App’x 579, 580 (5th Cir. 2007), we dismissed an appeal from a
    district court’s order on class certification and settlement approval based on
    76 Gulf Oil 
    Co., 452 U.S. at 100
    ; see also Moulton v. U.S. Steel Corp., 
    581 F.3d 344
    , 353
    (6th Cir. 2009) (“Rule 23 gives the district court broad discretion in handling class actions,
    authorizing ‘orders that . . . impose conditions on the representative parties or on
    intervenors.’”) (alteration in original); Williams v. Chartwell Fin. Servs., Ltd., 
    204 F.3d 748
    ,
    759 (7th Cir. 2000).
    77 Gulf Oil 
    Co., 452 U.S. at 100
    .
    26
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    No. 13-30095
    the objector’s failure to “prove his membership in the class” in accordance with
    the district court’s reasonable documentation requirements.                     We see no
    meaningful difference between the present case and the facts of Feder. As we
    explained in Feder, “the right to object to settlement in a . . . class action must
    rest on something more than the sort of bare assertions” now offered by the
    BCA Objectors. 78
    Accordingly, because the BCA Objectors did not substantiate their
    membership in this class, the district court did not abuse its discretion under
    Rule 23(d)(1)(A) and Rule 23(d)(1)(C) in finding that the BCA Objectors
    “forfeited and waived” their objections to the class certification and settlement
    approval. 79 We therefore will not consider the merits of their objections.
    In the remaining sections, we address the arguments raised by BP, the
    Allpar Objectors, and the Cobb Objectors in relation to the individual
    provisions of Rule 23.
    A.
    BP, the Allpar Objectors, and (by reference) the Cobb Objectors have all
    challenged certification of the class under Rule 23(a)(2), which requires a
    demonstration that “there are questions of law or fact common to the class.”
    These arguments rest entirely on a selective quotation from Wal-Mart Stores,
    Inc. v. Dukes, 
    131 S. Ct. 2541
    (2011), and must be rejected. As the Supreme
    Court stated in Wal-Mart, “[c]ommonality requires the plaintiff to demonstrate
    that the class members ‘have suffered the same injury.’” 80 Based on this single
    sentence, it is now suggested that either the diversity of the class members’
    78  See Feder, 248 F. App’x at 581; see also Union Asset Mgmt. Holding A.G. v. Dell,
    Inc., 
    669 F.3d 632
    , 639 (5th Cir. 2012) (holding that objectors had standing to object
    specifically because they had “complied” with the requirements of the settlement notice).
    79 See In re Oil 
    Spill, 910 F. Supp. 2d at 936
    .
    80 
    Wal-Mart, 131 S. Ct. at 2551
    (quoting Gen. Tel. Co. of Sw. v. Falcon, 
    457 U.S. 147
    ,
    157 (1982)).
    27
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    No. 13-30095
    economic injuries or the inclusion of members who “have suffered no injury at
    all” might preclude class certification.
    When quoted in its entirety, however, the relevant passage from Wal-
    Mart demonstrates why both of these arguments are meritless:
    Commonality requires the plaintiff to demonstrate
    that the class members “have suffered the same
    injury.” This does not mean merely that they have all
    suffered a violation of the same provision of law. Title
    VII, for example, can be violated in many ways—by
    intentional discrimination, or by hiring and promotion
    criteria that result in disparate impact, and by the use
    of these practices on the part of many different
    superiors in a single company. Quite obviously, the
    mere claim by employees of the same company that
    they have suffered a Title VII injury, or even a
    disparate-impact Title VII injury, gives no cause to
    believe that all their claims can productively be
    litigated at once. Their claims must depend upon a
    common contention—for example, the assertion of
    discriminatory bias on the part of the same supervisor.
    That common contention, moreover, must be of such a
    nature that it is capable of classwide resolution—
    which means that determination of its truth or falsity
    will resolve an issue that is central to the validity of
    each one of the claims in one stroke. 81
    As this passage shows, the Supreme Court’s use of the phrase, “the same
    injury,” in Wal-Mart (and decades previously in General Telephone Co. of
    Southwest v. Falcon, 
    457 U.S. 147
    , 157 (1982)) does not support BP’s argument.
    To satisfy the commonality requirement under Rule 23(a)(2), class members
    must raise at least one contention that is central to the validity of each class
    member’s claims.         But this contention need not relate specifically to the
    damages component of the class members’ claims.                      Even an instance of
    81   
    Wal-Mart, 131 S. Ct. at 2551
    (citation omitted) (quoting 
    Falcon, 457 U.S. at 157
    ).
    28
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    No. 13-30095
    injurious conduct, which would usually relate more directly to the defendant’s
    liability than to the claimant’s damages, may constitute “the same injury.”
    This is confirmed by the example given by the Supreme Court in the above
    passage from Wal-Mart, “discriminatory bias on the part of the same
    supervisor,” which is itself not a type of damages, but an instance of injurious
    conduct that violates Title VII. Later in the same decision, the Supreme Court
    stated that another type of injurious conduct on the part of the defendant, “a
    companywide discriminatory pay and promotion policy,” would also have
    satisfied the “same injury” test for commonality under Rule 23(a)(2). 82
    Accordingly, as these two examples from Wal-Mart demonstrate, the
    legal requirement that class members have all “suffered the same injury” can
    be satisfied by an instance of the defendant’s injurious conduct, even when the
    resulting injurious effects—the damages—are diverse. This aspect of the law
    is therefore unchanged since our decision in Bertulli v. Independent Association
    of Continental Pilots, 
    242 F.3d 290
    , 298 (5th Cir. 2001), in which we upheld
    certification of a class action because “virtually every issue prior to damages
    [wa]s a common issue.” As we indicated in M.D. ex rel. Stukenberg v. Perry,
    
    675 F.3d 832
    , 840 (5th Cir. 2012), the principal requirement of Wal-Mart is
    merely a single common contention that enables the class action “to generate
    common answers apt to drive the resolution of the litigation.” These “common
    answers” may indeed relate to the injurious effects experienced by the class
    members, but they may also relate to the defendant’s injurious conduct.
    “[E]ven a single common question will do.” 83
    The above passage from Wal-Mart also demonstrates that district courts
    do not err by failing to ascertain at the Rule 23 stage whether the class
    82   
    Id. at 2556.
          83   
    Id. (alterations and
    internal quotation marks omitted).
    29
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    No. 13-30095
    members include persons and entities who have suffered “no injury at all.” As
    the Supreme Court explained, a “contention” regarding the class members’
    injury is sufficient to satisfy Rule 23, so long as the party seeking certification
    can show that this contention is “common” to all the class members, is “central”
    to the validity of their claims, and is “capable” of classwide resolution. There
    is no need to resolve the merits of the common contention at the Rule 23 stage
    or to attempt prematurely the “determination of its truth or falsity.” 84
    Although Rule 23 “does not set forth a mere pleading standard” and a court
    may need to “probe behind the pleadings before coming to rest on the
    certification,” 85 Rule 23 does not therefore become a dress rehearsal for the
    merits. 86   As the Supreme Court repeated last term in Amgen, “[m]erits
    questions may be considered to the extent—but only to the extent—that they
    are relevant to determining whether the Rule 23 prerequisites for class
    certification are satisfied.” 87      In other words, to satisfy the commonality
    requirement under Rule 23(a)(2), the parties may potentially need to provide
    evidence to demonstrate that a particular contention is common, but not that
    it is correct.
    The district court’s certification of this class, therefore, did not violate
    Rule 23(a)(2). After reviewing expert evidence, the district court found that
    numerous factual and legal issues were central to the validity of all the class
    members’ claims. These included “[w]hether BP had a valid superseding cause
    defense,” “[w]hether BP used an improper well design that unreasonably
    heightened the risk,” “[w]hether the cement mixture was unstable, and, if so,
    whether BP should have prevented its use,” “[w]hether BP took appropriate
    84 See 
    id. at 2551.
           85 See 
    id. (quoting Falcon,
    457 U.S. at 160).
    86 In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 
    722 F.3d 838
    , 851-
    52 (6th Cir. 2013); Messner v. Northshore Univ. HealthSys., 
    669 F.3d 802
    , 811 (7th Cir. 2012).
    87 
    Amgen, 133 S. Ct. at 1195
    .
    30
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    and timely steps to stop the release of hydrocarbons from the well,” “whether
    these decisions (individually or collectively) constitute negligence, gross
    negligence, or willful misconduct,” “[w]hether BP is a responsible party under
    OPA,” “[w]hether BP could limit its liability under § 2704 of OPA,” “[w]hether
    punitive damages are available as a matter of law,” and whether BP “failed to
    mitigate the damages of the class.” 88 Neither BP nor the remaining Objectors
    find fault with any of the items on the district court’s long list of common
    issues. Because “even a single common question will do” under Wal-Mart, this
    list was more than sufficient. 89
    Accordingly, the commonality arguments raised by BP, the Allpar
    Objectors, and the Cobb Objectors do not require decertification of the class.
    Although all of the factual and legal questions identified by the district court
    are more closely related to BP’s injurious conduct than to the injurious effects
    experienced by the class members, they nonetheless demonstrate that the class
    members claim to have suffered the “same injury” in the sense that Wal-Mart
    used this phrase. 90 Additionally, the district court did not err by failing to
    determine whether the class contained individuals who have not actually
    suffered any injury, because this would have amounted to a determination of
    the truth or falsity of the parties’ contentions, rather than an evaluation of
    those contentions’ commonality. This was not required by Wal-Mart, and was
    expressly ruled out in Amgen. 91 We therefore reject the challenges raised by
    BP, the Allpar Objectors, and the Cobb Objectors under Rule 23(a)(2). 92
    88 In re Oil 
    Spill, 910 F. Supp. 2d at 922-23
    .
    89 See 
    Wal-Mart, 131 S. Ct. at 2556
    (alterations and internal quotation marks omitted).
    90 
    Id. at 2551
    (quoting 
    Falcon, 457 U.S. at 157
    ).
    91 
    Amgen, 133 S. Ct. at 1194-95
    .
    92 In a one-sentence footnote in its initial brief, BP adds that “the claims of the
    representative parties are no longer typical of the claims of the class” in light of the Claims
    Administrator’s interpretations and directs our attention to the Supreme Court’s statement
    31
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    B.
    BP and the Objectors also challenge class certification and settlement
    approval under Rule 23(a)(4), which requires a demonstration that “the
    representative parties will fairly and adequately protect the interests of the
    class.” According to this argument, an impermissible “intraclass conflict” is
    created by the Claims Administrator’s interpretation of Exhibits 4B and 4C
    because the claimants now include some persons and entities that have
    suffered injuries, and other persons and entities that allegedly have not. As it
    has been interpreted, BP argues, the Settlement Agreement “would almost
    necessarily make injured members worse off than they might have been had
    non-injured members been excluded from the class.” According to BP, had the
    injured class members been represented by named plaintiffs negotiating
    exclusively on their behalf, they could have used their increased bargaining
    power during settlement negotiations to demand a more favorable formula for
    awarding payments.
    The district court must be upheld, however, unless its decision
    constituted an abuse of discretion. In this case, the district court found that
    the named plaintiffs were “clearly adequate” to protect the interests of the class
    as they included “individuals and businesses asserting each category of loss”
    that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” See Wal-
    
    Mart, 131 S. Ct. at 2551
    n.5 (alteration in original) (internal quotation marks omitted). The
    Allpar Objectors also have not differentiated in any way between their commonality
    argument under Rule 23(a)(2) and their typicality argument under Rule 23(a)(3). To the
    extent that the references to “typicality” by BP and the Allpar Objectors constitute a separate
    argument under Rule 23(a)(3), that argument is rejected. For the same reasons given with
    respect to their commonality argument, neither BP nor the Allpar Objectors have
    demonstrated that the district court abused its discretion in finding that “[t]ypicality is
    satisfied here, as the class representatives—like all class members—allege economic and/or
    property damage stemming directly from the Deepwater Horizon spill.” In re Oil 
    Spill, 910 F. Supp. 2d at 915
    .
    32
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    and were assisted by adequate counsel. 93 After reviewing declarations by each
    of the named plaintiffs, the district court found that they had “participated in
    the settlement negotiations” and taken “an active role in the prosecution of this
    class action.” 94 After reviewing expert testimony, the district court also found
    that the class action was structured to assure adequate representation of all
    interests within the class and to prevent intraclass conflict.                        Finally, the
    district court concluded that the “uncapped compensation” available under the
    Settlement Agreement would “ensure that a benefit paid to one member of the
    class will in no way reduce or interfere with a benefit obtained by another
    member.” 95
    Although BP made no objection to the district court’s order certifying the
    class and approving the Settlement Agreement, BP asks this court to find an
    intraclass conflict of interest because the claimants allegedly include persons
    and entities that have suffered no injury. In support of this allegation, BP
    presents us with a series of economists’ declarations that had not been
    provided to the district court when the class was certified. But our previous
    decisions prevent us from considering this evidence for the first time on
    appeal. 96 Moreover, even if we were to accept BP’s contention that the class
    does include uninjured persons, Mims and Rodriguez would foreclose
    decertification of the class on this basis. As we stated in Mims in the context
    of the Rule 23 requirements, “[c]lass certification is not precluded simply
    because a class may include persons who have not been injured by the
    93   In re Oil 
    Spill, 910 F. Supp. 2d at 916-17
    .
    94   
    Id. at 916
    (quoting Stott v. Capital Fin. Servs., Inc., 
    277 F.R.D. 316
    , 325 (N.D. Tex.
    2011)).
    
    Id. at 918.
              95
    
    Quesada, 701 F.3d at 1084
    n.9; 
    Ramchandani, 434 F.3d at 339
    n.1; Theriot, 
    185 96 F.3d at 491
    n.26.
    33
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    defendant’s conduct.” 97 As we stated in Rodriguez, “the possibility that some
    [absent class members] may fail to prevail on their individual claims will not
    defeat class membership.” 98
    By contrast, we can consider the argument that the Cobb Objectors have
    raised under Rule 23(a)(4), which was passed upon by the district court. The
    Cobb Objectors argue that “class members from Texas, Louisiana, Alabama,
    Florida and Mississippi” should have been divided into their own subclasses,
    as should those class members who “were better off under the GCCF claims
    process.”
    Although the creation of subclasses is sometimes necessary under Rule
    23(a)(4) to avoid a “fundamental conflict,” there is no need to create subclasses
    to accommodate every instance of “differently weighted interests.” 99 In this
    case, because the class members’ claims arise under federal law rather than
    state law, we are not persuaded that there is any fundamental conflict between
    the “differently weighted interests” of class members from different
    geographical regions. Although geographical criteria were indeed incorporated
    into the Settlement Agreement, the reason for this is both obvious and
    acknowledged in the Cobb Objectors’ brief. That is, “causation becomes more
    97  
    Mims, 590 F.3d at 308
    .
    98  
    Rodriguez, 695 F.3d at 370
    (internal quotation marks omitted).
    99 Dewey v. Volkswagen Aktiengesellschaft, 
    681 F.3d 170
    , 186 (3d Cir. 2012) (quoting
    Gooch v. Life Investors Ins. Co. of Am., 
    672 F.3d 402
    , 429 (6th Cir. 2012)); see also In re
    Literary Works in Elec. Databases Copyright Litig., 
    654 F.3d 242
    , 249 (2d Cir. 2011); Ward v.
    Dixie Nat’l Life Ins. Co., 
    595 F.3d 164
    , 180 (4th Cir. 2010) (“For a conflict of interest to defeat
    the adequacy requirement, that conflict must be fundamental.” (internal quotation marks
    omitted)); Rodriguez v. W. Publ’g Corp., 
    563 F.3d 948
    , 959 (9th Cir. 2009) (“An absence of
    material conflicts of interest between the named plaintiffs and their counsel with other class
    members is central to adequacy . . . .” (emphasis added)); Valley Drug Co. v. Geneva Pharms.,
    Inc., 
    350 F.3d 1181
    , 1189 (11th Cir. 2003) (“Significantly, the existence of minor conflicts
    alone will not defeat a party’s claim to class certification: the conflict must be a ‘fundamental’
    one going to the specific issues in controversy.”).
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    difficult” for a claimant to establish “the further one moves from the coast” and,
    in particular, the further one moves from the Macondo reservoir where the
    Deepwater Horizon incident occurred.
    As the district court expressly found, the differences between the
    formulas applicable in the different geographic zones were “rationally related
    to the relative strengths and merits of similarly situated claims.” 100                 The
    identification of objective, geographically-based criteria therefore easily
    distinguishes this case from In re Katrina Canal Breaches Litigation, 
    628 F.3d 185
    , 194 (5th Cir. 2010), in which the district court improperly approved a class
    settlement that sought simply to “punt[] the difficult question of equitable
    distribution from the court to the special master, without providing any more
    clarity as to how fairness will be achieved.”                 The district court’s rigorous
    consideration of the expert evidence demonstrates that it did not abuse its
    discretion in declining to require subclasses for claimants based in Texas,
    Louisiana, Alabama, Florida, and Mississippi.
    We also must reject the Cobb Objectors’ argument that an intraclass
    conflict exists between class members who were “better off under the GCCF
    claims process” and those who were not. Most critically, the Cobb Objectors
    have failed to provide any details about the cause of these claimants’ current
    disadvantage. In their brief, the Cobb Objectors repeat several times that some
    number of claimants are now “forced to meet arbitrary loss and recovery
    benchmarks” under the Settlement Agreement, whereas these same claimants
    apparently could have recovered under the GCCF without doing so. After
    considering substantial expert testimony, however, the district court found
    explicitly that the Settlement Agreement’s compensation criteria were not
    100   See In re Oil 
    Spill, 910 F. Supp. 2d at 917-18
    .
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    arbitrary, but “detailed” and “objective.” 101 Nothing in the Cobb Objectors’
    arguments demonstrates that the district court’s conclusions on this question
    constituted an abuse of discretion.         Finally, even if some claimants were
    practically disadvantaged by the procedures of the court-administered claims
    process in comparison to the procedures of the GCCF, this mechanical
    discrepancy is only another example of “differently weighted interests” rather
    than a “fundamental conflict” of interests. 102 As the Sixth and Third Circuits
    have held, “each class member naturally derives different amounts of utility
    from any class-wide settlement” based on his or her unique circumstances, but
    this does not put all such class members in fundamental conflict with one
    another. 103   Without a more detailed description of the disadvantage
    experienced by the group that was supposedly “better off” under the GCCF, we
    cannot agree with the Cobb Objectors that the district court’s certification of
    this class was an abuse of discretion.
    C.
    BP and the Objectors also argue that class certification was improper
    under Rule 23(b)(3), which requires that “the questions of law or fact common
    to class members predominate over any questions affecting only individual
    members.” According to BP and the Objectors, the Supreme Court’s recent
    decision in Comcast Corp. v. Behrend, 
    133 S. Ct. 1426
    (2013)—which was
    decided three months after the district court certified the class—precludes
    certification under Rule 23(b)(3) in any case where the class members’ damages
    are not susceptible to a formula for classwide measurement.
    This is a misreading of Comcast, however, which has already been
    101 
    Id. 102 Dewey,
    681 F.3d at 186 (quoting 
    Gooch, 672 F.3d at 429
    ).
    103 See 
    id. 36 Case:
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    No. 13-30095
    rejected by three other circuits. 104          As explained in greater detail below,
    Comcast held that a district court errs by premising its Rule 23(b)(3) decision
    on a formula for classwide measurement of damages whenever the damages
    measured by that formula are incompatible with the class action’s theory of
    liability. As the court explained, “[t]he first step in a damages study is the
    translation of the legal theory of the harmful event into an analysis of the
    economic impact of that event.” 105 This rule may reveal an important defect in
    many formulas for classwide measurement of damages.                         But nothing in
    Comcast mandates a formula for classwide measurement of damages in all
    cases. Even after Comcast, therefore, this holding has no impact on cases such
    as the present one, in which predominance was based not on common issues of
    damages but on the numerous common issues of liability. In the present case,
    the district court did not include a formula for classwide measurement of
    damages among its extensive listing of the “common issues” that weighed in
    favor of certification.      The district court always recognized that the class
    members’ damages “would have to be decided on an individual basis were the
    cases not being settled,” as would “the extent to which the Deepwater Horizon
    incident versus other factors caused a decline in the income of an individual or
    business.” 106 The holding of Comcast cited by BP and the Objectors, therefore,
    is simply inapplicable here.
    As recalled above, the district court set forth a considerable list of issues
    that were common to all the class members’ claims. Nearly all of these issues
    related to either the complicated factual questions surrounding BP’s
    involvement in the well design, explosion, discharge of oil, and cleanup efforts
    104 See 
    Butler, 727 F.3d at 800
    ; In re Whirlpool 
    Corp., 722 F.3d at 860
    ; Leyva v. Medline
    Indus. Inc., 
    716 F.3d 510
    , 514 (9th Cir. 2013).
    105 Comcast Corp. v. Behrend, 
    133 S. Ct. 1426
    , 1435 (2013) (quoting FED. JUDICIAL
    CTR., REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 432 (3D ED. 2011) (emphasis omitted)).
    106 In re Oil 
    Spill, 910 F. Supp. 2d at 924
    .
    37
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    or the uncertain legal questions surrounding interpretation and application of
    the OPA. Accordingly, BP and the Objectors are quite correct to suggest that,
    although the analysis of BP’s injurious conduct gives rise to numerous common
    questions, the class members’ damage calculations give rise primarily to
    individual questions that are not capable of classwide resolution.
    But this is not fatal to class certification. As we stated in Bell Atlantic
    Corp. v. AT&T Corp., 
    339 F.3d 294
    , 306 (5th Cir. 2003), “[e]ven wide disparity
    among class members as to the amount of damages” does not preclude class
    certification “and courts, therefore, have certified classes even in light of the
    need for individualized calculations of damages.”                 Accordingly, as we
    recognized in Steering Committee v. Exxon Mobil Corp., 
    461 F.3d 598
    , 603 (5th
    Cir. 2006), it is indeed “possible to satisfy the predominance . . . requirements
    of Rule 23(b)(3) in a mass tort or mass accident class action” despite the
    particular need in such cases for individualized damages calculations. On this
    basis, therefore, we have previously affirmed class certification in mass
    accident cases, 107 as in other cases in which “virtually every issue prior to
    damages is a common issue.” 108
    In particular, as we explained in Madison v. Chalmette Refining, L.L.C.,
    
    637 F.3d 551
    , 556 (5th Cir. 2011), predominance may be ensured in a mass
    accident case when a district court performs a sufficiently “rigorous analysis”
    of the means by which common and individual issues will be divided and tried.
    In many circuits, this has been accomplished by means of multi-phase trials
    under Rule 23(c)(4), which permits district courts to limit class treatment to
    107 See Steering 
    Comm., 461 F.3d at 603
    (analyzing Watson v. Shell Oil Co., 
    979 F.2d 1014
    , 1022-23 (5th Cir. 1992)).
    108 
    Bertulli, 242 F.3d at 298
    .
    38
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    “particular issues” and reserve other issues for individual determination. 109
    Accordingly, Chalmette Refining instructed district courts to consider
    rigorously how they plan to “adjudicate common class issues in the first phase
    and then later adjudicate individualized issues in other phases” of the multi-
    phase trial before the final decision is made to certify a class. 110
    Heeding our instruction in Chalmette Refining, therefore, the district
    court planned “to manage such litigation by breaking it down into separate
    phases, as the [district court] was prepared to do prior to the parties’ reaching
    a settlement.” 111 From the beginning of the litigation, the district court had
    anticipated that “issues relating to damages” would be “severed and tried
    separately” from other issues relating to liability. 112 The initial phases of this
    litigation would therefore have focused on common questions, including which
    defendants bore responsibility for the well blowout, how much oil escaped from
    the Macondo reservoir, who bore responsibility for the inability of the
    defendants to contain the flow earlier, where the oil finally came to rest, and
    how the efforts to disperse the oil were conducted. 113                          “[A]bsent the
    Settlement,” the district court would then have been obliged to determine in
    later phases how “responsible party status would translate into compensation”
    under the OPA. 114
    The district court was well aware, therefore, that the class members’
    damages “would have to be decided on an individual basis were the cases not
    being settled,” as would “the extent to which the Deepwater Horizon incident
    109   
    Butler, 727 F.3d at 800
    ; In re Whirlpool 
    Corp., 722 F.3d at 860
    ; 
    Leyva, 716 F.3d at 514
    .
    110 Chalmette 
    Ref., 637 F.3d at 556
    .
    111 In re Oil 
    Spill, 910 F. Supp. 2d at 932
    .
    112 Scheduling Order of October 6, 2010, at 3 (Rec. Doc. 473).
    113 In re Oil 
    Spill, 910 F. Supp. 2d at 921-23
    .
    114 
    Id. at 924.
    39
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    versus other factors caused a decline in the income of an individual or
    business.” 115 Accordingly, the district court did not list the calculation of the
    claimants’ damages either in its list of “common questions of fact” or in its list
    of “common questions of law.” 116          But even without a common means of
    measuring damages, in the district court’s view, these common issues
    nonetheless predominated over the issues unique to individual claimants. As
    the district court explained, “[t]he phased trial structure selected by the Court
    prior to the parties’ arrival at a settlement agreement reflected the central
    importance of common issues to this case.” 117
    In rendering this conclusion, the district court did not abuse its
    discretion. The phased trial of common issues in this case would undoubtedly
    prevent the repetitious re-litigation of these common issues by each individual
    claimant in thousands of separate lawsuits. In accordance with our directive
    in Chalmette Refining, the district court also rigorously analyzed how it would
    adjudicate “common class issues in the first phase” and “individualized issues
    in other phases.” 118 As required by Amchem Products, Inc. v. Windsor, 
    521 U.S. 591
    , 615 (1997), this class action would indeed “achieve economies of time,
    effort, and expense, and promote . . . uniformity of decision as to persons
    similarly situated, without sacrificing procedural fairness or bringing about
    other undesirable results.” This class action therefore satisfies Rule 23(b)(3).
    This analysis is not changed by the Supreme Court’s recent decision in
    Comcast. BP and the Objectors suggest that, three months after the district
    court certified the class and approved the settlement, Comcast brought about
    a revolution in the application of Rule 23(b)(3). According to this argument,
    115 
    Id. 116 Id.
    at 921-23.
    117 
    Id. at 921.
          118 See Chalmette 
    Ref., 637 F.3d at 556
    .
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    Comcast declared “that certification under Rule 23(b)(3) requires a reliable,
    common methodology for measuring classwide damages.” This reading is a
    significant distortion of Comcast, and has already been considered and rejected
    by the Seventh Circuit, the Sixth Circuit, and the Ninth Circuit in the months
    since Comcast was decided. 119
    The principal holding of Comcast was that a “model purporting to serve
    as evidence of damages . . . must measure only those damages attributable to
    th[e] theory” of liability on which the class action is premised. 120 “If the model
    does not even attempt to do that, it cannot possibly establish that damages are
    susceptible of measurement across the entire class for purposes of Rule
    23(b)(3).” 121          In this case, however, the district court’s inquiry into
    predominance was never premised on such a formula. As our three fellow
    circuits have already concluded, we agree that the rule of Comcast is largely
    irrelevant “[w]here determinations on liability and damages have been
    bifurcated” in accordance with Rule 23(c)(4) and the district court has
    “reserved all issues concerning damages for individual determination.” 122
    Even after Comcast, the predominance inquiry can still be satisfied under Rule
    23(b)(3) if the proceedings are structured to establish “liability on a class-wide
    basis, with separate hearings to determine—if liability is established—the
    damages of individual class members.” 123 As explained above, this is precisely
    how the district court planned to calculate the claimants’ damages, which
    119   See 
    Butler, 727 F.3d at 800
    ; In re Whirlpool 
    Corp., 722 F.3d at 860
    ; 
    Leyva, 716 F.3d at 514
    .
    Comcast 
    Corp., 133 S. Ct. at 1433
    .
    120
    
    Id. 121 122
    In re Whirlpool 
    Corp., 722 F.3d at 860
    ; see also 
    Butler, 727 F.3d at 800
    ; 
    Leyva, 716 F.3d at 514
    .
    123 
    Butler, 727 F.3d at 800
    ; see also In re Whirlpool 
    Corp., 722 F.3d at 860
    ; 
    Leyva, 716 F.3d at 514
    .
    41
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    “would have to be decided on an individual basis were the cases not being
    settled.” 124 The principal holding of Comcast therefore has no application here.
    As an additional matter relating to the predominance inquiry, we also
    address BP’s suggestion that Comcast prohibits class certification in the
    present case because payments are made under the Settlement Agreement’s
    Exhibits 4B and 4C to claimants “who have suffered no injury.” In BP’s view,
    payments made under such a formula are not “attributable” to the class
    action’s theory of liability and therefore violate Comcast. In support of this
    argument, BP also has cited our decision in Bell Atlantic, which stated (very
    similarly to Comcast) that the predominance inquiry under Rule 23(b)(3)
    cannot be satisfied when it is premised on a formula for classwide
    measurement of damages that “is clearly inadequate.” 125
    This argument must also be rejected. Neither Comcast nor Bell Atlantic,
    nor any other decision that BP has identified, has suggested that
    predominance under Rule 23(b)(3) can be defeated by a formula for making
    voluntary payments under a settlement agreement. Both Comcast and Bell
    Atlantic addressed formulas for measuring damages in class actions that had
    been certified for further proceedings on the merits, and neither made any
    mention of a settlement agreement. The Amchem decision, moreover, which
    did involve a settlement class proposed for certification under Rule 23(b)(3),
    explained that the predominance inquiry “trains on the legal or factual
    questions that qualify each class member’s case as a genuine controversy,
    questions that preexist any settlement.” 126      Indeed, as stated elsewhere in
    Amchem, the existence of a settlement agreement allows the district court to
    dispense altogether with considering at least one of the Rule 23(b)(3) concerns:
    124 In re Oil 
    Spill, 910 F. Supp. 2d at 924
    .
    125 Bell 
    Atl., 339 F.3d at 307
    .
    126 
    Amchem, 521 U.S. at 623
    (emphasis added).
    42
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    “the likely difficulties in managing a class action.” Under Amchem, when
    “[c]onfronted with a request for settlement-only class certification, a district
    court need not inquire whether the case, if tried, would present intractable
    management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is
    that there be no trial.” 127
    We cannot therefore conceive of why or how a formula for making
    voluntary payments under a settlement agreement could threaten the
    predominance of common questions over individual questions in litigation.
    Indeed, the reason that BP has identified no authority for this proposition is
    that it is nonsensical. A question of law or fact that is “common” under Rule
    23 is one that enables the class action “to generate common answers apt to
    drive the resolution of the litigation.” 128 But after a class action has been
    settled, by definition the litigation has been resolved and the questions have
    been answered. For the commonality and predominance inquiries to have any
    meaning at all, therefore, they must be considered independently from the
    resolution provided in a settlement—which is precisely what Amchem
    instructs. 129 The arguments raised by BP and the Objectors regarding Rule
    23(b)(3) must therefore be rejected. 130
    127  
    Id. at 620.
           128  
    Wal-Mart, 131 S. Ct. at 2551
    (emphasis omitted); 
    M.D., 675 F.3d at 840
    .
    129 
    Amchem, 521 U.S. at 623
    (explaining that the predominance inquiry “trains on the
    legal or factual questions that qualify each class member’s case as a genuine controversy,
    questions that preexist any settlement.”). It is worth recalling here that even though the
    settlement class in Amchem failed the predominance inquiry, this was not due to any feature
    of the settlement. This was because, rather, the district court had impermissibly taken into
    consideration factors such as the class members’ “interest in receiving prompt and fair
    compensation,” which was a factor unrelated to the case or controversy that they
    hypothetically would have litigated had the class action not been settled. Such factors are
    external to the predominance inquiry. See 
    id. 130 Neither
    the Cobb Objectors nor the Allpar Objectors have made any arguments
    under the second requirement of Rule 23(b)(3), that “a class action is superior to other
    available methods for fairly and efficiently adjudicating the controversy.” BP has raised this
    43
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    D.
    BP and the Objectors have also argued that, by virtue of the Class
    Administrator’s interpretations of Exhibits 4B and 4C, the class notice
    distributed to absent class members has been rendered deficient. Under Rule
    23(c)(2)(B), “[t]he notice must clearly and concisely state in plain, easily
    understood language . . . the nature of the action,” “the definition of the class
    certified,” “the class claims, issues, or defenses,” and other items of information
    relating to opting out, making objections, and the consequences of the
    judgment. Without tying their argument to any particular provision of Rule
    23(c)(2)(B), BP and the Objectors contend that class members should have been
    informed of the likelihood that the prospective claimants would include
    uninjured persons and entities.
    In our circuit, however, “[i]t is not required[] . . . that class members be
    made cognizant of every material fact that has taken place prior to the
    notice.” 131   Moreover, as we held in In re Nissan Motor Corp. Antitrust
    Litigation, 
    552 F.2d 1088
    , 1104 (5th Cir. 1977), and as at least four of our fellow
    circuits have agreed, the class notice must describe the proceedings in
    argument but has not differentiated in any meaningful way between its “predominance”
    argument and “superiority” argument. Citing Amchem, BP argues essentially that the class
    action would not be superior to individual lawsuits because a class action only satisfies Rule
    23(b)(3) when it “would achieve economies of time, effort, and expense, and promote
    uniformity of decision as to persons similarly situated, without sacrificing procedural fairness
    or bringing about other undesirable results.” 
    Amchem, 521 U.S. at 615
    . As we already have
    decided in the context of the predominance inquiry, however, the district court did not abuse
    its discretion in finding that this requirement was met in this case. See In re Oil 
    Spill, 910 F. Supp. 2d at 928
    . Accordingly, BP’s argument as to superiority under Rule 23(b)(3) is also
    rejected.
    131 In re Corrugated Container Antitrust Litig., 
    611 F.2d 86
    , 88 (5th Cir. 1980) (quoting
    In re Nissan Motor Corp. Antitrust Litig., 
    552 F.2d 1088
    , 1104 (5th Cir. 1977)) (original
    alterations, quotation marks, and parentheses omitted).
    44
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    “objective, neutral terms.” 132 The contention that BP and the Objectors now
    suggest should have been incorporated into the class notice is neither
    “objective” nor “neutral” but is an adversarial position that would have been
    inappropriate for inclusion in a class notice.
    Additionally, in Katrina Canal Breaches, in which we found a statement
    in a class notice to be “slightly misleading” regarding a point of Louisiana law,
    we held that the notice was not rendered deficient because “the statement as
    written [wa]s accurate in its essential point.” 133 Here, the class definition was
    explained in the notice to include persons and entities with economic loss and
    property damage “arising out of the ‘Deepwater Horizon Incident.’”
    Accordingly, even if we were to accept that the class notice could have been
    improved by adding the word, “allegedly,” this minor legal ambiguity would
    not be enough to render the class notice deficient. The district court therefore
    did not abuse its discretion in finding the class notice sufficient under Rule
    23(c)(2)(B).
    E.
    BP and the Objectors also argue that the Claims Administrator’s
    interpretations of Exhibits 4B and 4C preclude approval of the Settlement
    Agreement under Rule 23(e), which requires a district court to ensure that all
    class settlements are “fair, reasonable, and adequate.” Even the cases cited by
    BP, however, emphasize that the purpose of Rule 23(e) is “to protect the
    132  See Int’l Union, United Auto., Aerospace, & Agric. Implement Workers of Am. v.
    Gen. Motors Corp., 
    497 F.3d 615
    , 630 (6th Cir. 2007) (“Rule 23(e) does not require the notice
    to set forth every ground on which class members might object to the settlement . . . .”); see
    also Rodriguez v. W. Publ’g Corp., 
    563 F.3d 948
    , 962-63 & n.7 (9th Cir. 2009) (requiring the
    class notice to be “scrupulously neutral”); In re Traffic Exec. Ass’n E. R.R., 
    627 F.2d 631
    , 634
    (2d Cir. 1980) (same); Grunin v. Int’l House of Pancakes, 
    513 F.2d 114
    , 122 (8th Cir. 1975)
    (same).
    133 See In re Katrina Canal Breaches Litig., 
    628 F.3d 185
    , 199 (5th Cir. 2010).
    45
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    nonparty members of the class.” 134 No case cited by BP or the Objectors
    suggests that a district court must also safeguard the interests of the
    defendant, which in most settlements can protect its own interests at the
    negotiating table. As we stated in Newby v. Enron Corp., 
    394 F.3d 296
    , 301
    (5th Cir. 2004), “[t]he gravamen of an approvable proposed settlement is that
    it be fair, adequate, and reasonable and is not the product of collusion between
    the parties.” 135      As is abundantly clear from the current controversy
    surrounding the proper interpretation of Exhibits 4B and 4C, and as the
    district court expressly found, 136 the Settlement Agreement was concluded in
    an arms-length negotiation that was free of collusion.
    BP also makes a novel argument regarding our decision in Reed v.
    General Motors Corp., 
    703 F.2d 170
    (5th Cir. 1983), in which we explained that
    the application of Rule 23(e) should hinge on the analysis of six factors. These
    factors are: (1) the existence of fraud or collusion behind the settlement; (2) the
    complexity, expense, and likely duration of the litigation; (3) the stage of the
    proceedings and the amount of discovery completed; (4) the probability of
    plaintiffs’ success on the merits; (5) the range of possible recovery; and (6) the
    opinions of the class counsel, class representatives, and absent class
    members. 137 In the present case, the district court conducted a lengthy and
    detailed analysis of the proposed settlement under each of the six Reed
    factors. 138 In the district court’s view, none of the Reed factors counseled
    
    134 Wilson v
    . Sw. Airlines, Inc., 
    880 F.2d 807
    , 818 (5th Cir. 1989) (quoting Piambino v.
    Bailey, 
    610 F.2d 1306
    , 1327 (5th Cir. 1980)); see also All Plaintiffs v. All Defendants, 
    645 F.3d 329
    , 334 (5th Cir. 2011) (citing Strong v. BellSouth Telecomm’cns, Inc., 
    137 F.3d 844
    , 849 (5th
    Cir. 1998)).
    135 
    Newby, 394 F.3d at 301
    (internal quotation marks omitted).
    136 In re Oil 
    Spill, 910 F. Supp. 2d at 931
    .
    137 
    Reed, 703 F.2d at 172
    .
    138 In re Oil 
    Spill, 910 F. Supp. 2d at 931
    -39.
    46
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    against approving the settlement.
    BP’s argument ignores the six Reed factors altogether. Rather, BP relies
    on a short quotation from Reed to suggest that district courts should also
    ensure that settlement agreements are based on a “fair approximation of [class
    members’] relative entitlement.”            This quotation is clearly taken out of
    context. 139 No other decision by our court or by any district court has ever cited
    Reed for such a proposition. Nor can any of the six Reed factors be easily
    related to the “fair approximation” analysis that BP proposes.                         Even
    attempting to analyze BP’s argument under the fifth factor discussed in Reed,
    “the range of possible recovery,” BP has identified no reason to believe that the
    payments made under the Settlement Agreement fall outside the class
    members’ range of “possible” recovery in litigation.
    F.
    Last of all, BP and the Objectors have argued that, by virtue of the Class
    Administrator’s interpretations of Exhibits 4B and 4C, Rule 23’s implicit
    “ascertainability” requirement is not satisfied. As we held in Union Asset
    Management Holding A.G. v. Dell, Inc., 
    669 F.3d 632
    (5th Cir. 2012): “[I]n order
    to maintain a class action, the class sought to be represented must be
    adequately defined and clearly ascertainable.” 140 According to this argument,
    the Claims Administrator’s two Policy Announcements render the class
    definition irrational and therefore violate the ascertainability requirement.
    However, as we found in Rodriguez, “the possibility that some [claimants] may
    fail to prevail on their individual claims will not defeat class membership” on
    the basis of the ascertainability requirement. 141               Accordingly, this final
    139 See 
    Reed, 703 F.2d at 175
    .
    140 
    Dell, 669 F.3d at 639
    (5th Cir. 2012) (quoting DeBremaecker v. Short, 
    433 F.2d 733
    ,
    734 (5th Cir. 1970) (per curiam)).
    141 
    Rodriguez, 695 F.3d at 370
    (internal quotation marks omitted).
    47
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    argument by BP and the Objectors is rejected. In the absence of any other
    arguments addressing this implicit component of Rule 23, we find that the
    district court did not abuse its discretion in finding that the settlement class
    satisfies the ascertainability requirement.
    V.
    To conclude, the numerous arguments that BP and the Objectors have
    raised with respect to each of the provisions of Rule 23 are variants, for the
    most part, of a single argument. Based on our previous decisions, we would
    reject this argument even if we could consider BP’s evidence and accept its
    factual premise, which we cannot.              Under Mims and Rodriguez, “[c]lass
    certification is not precluded simply because a class may include persons who
    have not been injured by the defendant’s conduct.” 142 The result is no different,
    moreover, under Article III. As we wrote in Cole, “it is sufficient for standing
    purposes that the plaintiffs seek recovery for an economic harm that they
    allege they have suffered,” because we “assume arguendo the merits” of their
    claims at the Rule 23 stage. 143
    For the foregoing reasons, therefore, we AFFIRM the district court’s
    order of December 21, 2012.
    AFFIRMED.
    142 
    Mims, 590 F.3d at 308
    ; see 
    Rodriguez, 695 F.3d at 370
    (“[T]he possibility that some
    [absent class members] may fail to prevail on their individual claims will not defeat class
    membership.”).
    143 
    Cole, 484 F.3d at 723
    (emphasis added) (quoting 
    Parker, 478 F.3d at 377
    (internal
    quotation marks omitted)).
    48
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    EMILIO M. GARZA, Circuit Judge, dissenting:
    The majority finds Article III causation satisfied by language in the
    complaint     and    Settlement   Agreement,     notwithstanding    the    Claims
    Administrator’s controlling interpretation rendering this language void,
    eliminating all causation requirements for a broad swath of the class and
    allowing individuals or entities to participate in the settlement even though
    they lack a justiciable claim. “Rule 23’s requirements must be interpreted in
    keeping with Article III . . . .” Amchem Products, Inc., v. Windsor, 
    521 U.S. 591
    ,
    613 (1997).    Standing is an essential component of Article III’s case-or-
    controversy requirement, and it mandates that “there must be a causal
    connection between the injury and the conduct complained of.”             Lujan v.
    Defenders of Wildlife, 
    504 U.S. 555
    , 560 (1992). That is, whether a class
    member was economically injured is immaterial if that loss was not caused by
    the oil spill. Absent an actual causation requirement for all class members,
    Rule 23 is not being used to simply aggregate similar cases and controversies,
    but rather to impermissibly extend the judicial power of the United States into
    administering a private handout program. Because Article III does not permit
    this, I respectfully dissent.
    I
    While the three elements of Article III standing—injury, causation, and
    redressability—remain constant throughout the litigation, the standard of
    proof necessary to demonstrate these elements becomes progressively more
    demanding through “the successive stages of the litigation.” 
    Lujan, 504 U.S. at 560
    ; ante, at 9. I agree with the majority we must evaluate standing according
    to the standard of proof for the Rule 23 class certification and settlement
    approval stage. I disagree with the majority, however, that Article III standing
    is satisfied in this case under the Denney test. I also disagree that Kohen,
    49
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    which by its facts addresses only pre-trial certification of a litigation class,
    applies to the certification of a settlement class.
    A
    In Denney v. Deutsche Bank AG, 
    443 F.3d 253
    , 264 (2d Cir. 2006), a class
    action settlement case like ours, the Second Circuit determined that “[n]o class
    may be certified that contains members lacking Article III standing. The class
    must therefore be defined in such a way that anyone within it would have
    standing.” 
    Id. (internal citations
    omitted) (emphasis added). The Denney test
    fundamentally recognizes that a class certification decision opens the doors of
    federal court to all members of that class. The federal courts are only open to
    justiciable cases. 1     Thus, Denney correctly appreciates that, at the end of
    litigation, settlement class certification stage, courts should verify that the
    class definition is limited to those with justiciable cases, that is, to those that
    would have standing. As the majority notes, the touchstone of this test is
    whether the class definition encompasses only persons and entities that
    possess Article III Standing. Ante at 16.
    The majority holds that the extant settlement class is necessarily limited
    to those class members with claims causally connected to the oil spill, that is,
    to those with standing. 
    Id. It bases
    this holding exclusively upon Section
    1.3.1.2 of the Class Definition, which is contained in both the Amended
    Complaint and the Settlement Agreement. It totally, and erroneously, ignores
    language in other documents, including Exhibit 4B and the Claims
    Administrator’s Policy Announcement, which materially affects the status of
    the causation requirement. Section 1.3.1.2 summarizes an economic damage
    1 See, e.g., Warth v. Seldin, 
    422 U.S. 490
    , 498 (1975) (“[Standing] is founded in concern
    about the proper—and properly limited—role of the courts in a democratic society. [It] is the
    threshold question in every federal case, determining the power of the court to entertain the
    suit.”).
    50
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    category for “[l]oss of income, earnings or profits suffered by Natural Persons
    or Entities as a result of the DEEPWATER HORIZON INCIDENT.” (emphasis
    added). Certainly, this language encompasses a causation requirement. 2
    However, the inquiry does not end there. Other documents with significant
    bearing on the Class Definition’s treatment of causation must also be
    examined.
    Section 1.3.1 of the Class Definition incorporates by reference Exhibit
    4B: “Causation Requirements for Business Economic Loss Claims.” Section 1
    of Exhibit 4B establishes that certain individuals and entities, based on their
    location or the nature of their enterprise, “are not required to provide any
    evidence of causation.” 3         These groups are entitled to a presumption of
    causation. 4 Construed together, Section 1.3.1.2 of the Class Definition and
    Section 1 of Exhibit 4B establish that individuals and entities alleging a loss
    caused by the oil spill need not submit evidence of that causation when making
    a claim for payment. 5 Such a construction seemingly preserves a threshold
    2Under the Oil Pollution Act, 33 U.S.C. § 2702(a), liability extends to removal costs
    and specified damages categories “that result” from an oil discharge incident.
    3For example, Section I.1 states, “If you are a business in Zone A, you are not required
    to provide any evidence of causation unless you fall into one of the exceptions agreed to by
    the parties, and listed in footnote (1).” Section I.5 states, “If you are in Zone A, B, or C, and
    you meet the “Charter Fishing Definition” you are not required to provide any evidence of
    causation.” See infra Part II (explaining why geographic and enterprise-based requirements
    alone do not comply with the cause-in-fact requirement of Article III and the substantive law
    governing the class claims).
    4These groups are in contrast to other groups of claimants that must provide evidence
    of causation according to the requirements of one of several revenue loss models defined in
    the Settlement Agreement—e.g., the “Modified V-Shaped Revenue Pattern,” or “Proof of
    Spill-Related Cancellations.”
    5Exhibit 4B’s presumption of causation substitutes a claimant’s geographical location,
    or the nature of a claimant’s enterprise, for proof of causation. There is an open question as
    to whether this substitution, even in conjunction with Section 1.3.1.2, would satisfy Article
    51
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    causation requirement while simply eliminating the need for specific evidence
    to prove it when making a settlement claim.                In other words, causation
    ostensibly remains an element of a claim even though proof is not a central
    feature of the claims process. Significantly, Section 1.3.1.2 and Section I of
    Exhibit 4B does not end our inquiry: The Claims Administrator has issued a
    controlling interpretation of the Class Definition’s causation requirements.
    The Claims Administrator is specifically charged with implementing and
    administering the Settlement in Section 4.3.1 of the Settlement Agreement.
    Pursuant to this charge he issued an interpretive decision about causation for
    economic losses, in which he explained that he would:
    “compensate eligible Business Economic Loss and Individual
    Economic Loss claimants for all losses payable under the terms of
    the Economic Loss frameworks in the Settlement Agreement,
    without regard to whether such losses resulted or may have resulted
    from a cause other than the Deepwater Horizon oil spill provided
    such claimants have satisfied the specific causation requirements
    set out in the Settlement Agreement.” (emphasis added).
    The Claims Administrator further determined that “the Settlement Agreement
    does not contemplate that the Claims Administrator will undertake additional
    analysis of causation issues beyond those criteria that are specifically set out
    in the Settlement Agreement.” In short, the Claims Administrator established
    that the Settlement Agreement requires no proof of causation, beyond the
    specific requirements of Exhibit 4B. And, the district court has repeatedly
    affirmed this determination. 6 Essentially, this interpretation renders Section
    III’s cause-in-fact element. However, on the facts before us, the Claims Administrator’s
    interpretation has effectively eliminated Section 1.3.1.2’s “as a result of” language.
    6The Claims Administrator issued the Policy Announcement on October 10, 2012, just
    over two months before the District Court entered the final class certification order. On
    December 12, 2012, the district court acknowledged awareness of the interpretation in an
    email to the parties. And, on April 9, 2013, the district court issued an order adopting the
    52
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    1.3.1.2’s causation language nugatory—all that matters is Exhibit 4B. There
    is no longer a threshold requirement that the economic losses stand “as a result
    of” the Deepwater Horizon incident, and at least five groups 7 of Business
    Economic Loss claimants will never be required to provide any proof of
    causation. That is, there is no causation requirement in the Settlement
    Agreement—as actually implemented—for a significant segment of the class.
    Surely, the words “as a result of” remain in the text of the Class Definition, the
    Amended Complaint, and the Settlement Agreement, but, in truth, they have
    no significance to determining who is eligible to participate in the settlement.
    Consequently, this class can encompass individuals or entities who could
    never truthfully allege or establish standing, at any stage of the litigation.
    Thus, it fails under Denney.          As explained in Lujan, Article III standing
    irreducibly requires that the injury be “fairly traceable to the challenged action
    of the defendant, and not the result of the independent action of some third
    party not before the 
    court.” 504 U.S. at 660
    (internal quotations and alterations
    omitted).     The elimination of a causation requirement for these Business
    Economic Loss claimants renders the Settlement Agreement unconstitutional
    in this respect.
    At the settlement class certification stage, Denney does “not require that
    each member of a class submit evidence of personal standing.” 
    Denney 443 F.3d at 263
    . The test is whether each member contemplated by the definition can
    allege standing. Ante at 21. And for the purposes of standing allegations, we
    interpretation. On December 24, 2013, responding to the remand in No. 13-30315 (Before
    Judges Dennis, Clement, and Southwick), the district court issued an order finding “that
    whether a business economic loss is “as a result of” the Deepwater Horizon incident for
    purposes of the Settlement is determined exclusively and conclusively by Exhibit 4B.” See
    Order and Reasons [Responding to Remand of Business Economic Loss issues], 2:10-MD-
    2179, ECF No. 12055, at 18.
    7   See Exhibit 4B, §§ I.1–5.
    53
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    “assume arguendo the merits of [the] legal claim.” Cole v. General Motors
    Corp., 484 f.3d 717, 723 (5th Cir. 2007). But here, at the settlement class
    certification stage, these standards are not met. Because the interpretation
    has nullified the causation language of Section 1.3.1.2 of the complaint, there
    is no guarantee that each member of the class meets the standing
    requirements of Article III. Thus, it is quite possible that claimants eligible
    for Exhibit 4B’s presumption of causation can fully participate in the
    settlement even though their injuries, if any, are not fairly traceable to the
    Deepwater Horizon incident. Cf. 
    Lujan, 504 U.S. at 560
    . Denney requires that
    the class must “be defined in such a way that anyone within it would have
    standing.” 
    Denney, 443 F.3d at 264
    (emphasis added). Absent a causation
    requirement for certain segments of Business Economic Loss claimants, this
    Class Definition includes those who would not. 8
    The majority avoids the fatal impact of the Policy Announcement by
    concluding that “the evidentiary standard to be applied by the Claims
    Administrator [ ] is not a matter of Article III standing,” but rather “a question
    of interpreting the Settlement Agreement and applying it to each individual
    claim . . . .” Ante at 24. If this case involved only a question of degree—say,
    what evidence is sufficient to establish causation—I might agree with this
    8 On appeal, BP has presented particular evidence that the Administrator has made
    awards to persons and entities that “likely were not injured” by the oil spill. Ante, at 19. The
    majority holds that this evidence cannot be considered on appeal because it was not presented
    to the district court. 
    Id. Taking this
    as true, there is no need to evaluate specific evidence to
    determine that the class definition, as currently interpreted, can include individuals or
    entities that cannot trace their injury to the oil spill. Looking at the totality of the relevant
    documents, it is clear that the Class Definition is overbroad. Exhibit 4B creates a
    presumption of causation for those that work in a specific area or occupation, and the “as a
    result of” language, stripped of meaning by the Claims Administrator, no longer bounds these
    individuals or entities. Thus, the class definition directly includes business claimants for
    which there is no causation requirement. Geographic and enterprise-based factors alone, all
    that are required under Section I of Exhibit 4B, are insufficient to satisfy the causal
    connection required by Article III. See infra Part II.
    54
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    No. 13-30095
    conclusion. In that case, some form of causation would remain intact. However,
    the issue here is not what evidence is sufficient, but rather whether causation
    has been entirely written out of the settlement. Certainly, this is within the
    bounds of an Article III inquiry. See 
    Lujan, 504 U.S. at 560
    (holding that a
    causal connection is in irreducible component of Article III standing).
    Furthermore,         the    majority      strongly      suggests      that    the     Claims
    Administrator’s interpretation is not before us in this appeal. Ante at 23. While
    the policy interpretation is not literally part of the district court’s December
    21, 2012 certification order, the document directly before us, it is clearly an
    integral aspect of how the Class Definition and the Settlement Agreement
    operate.          The Denney test for verifying Article III standing at the class
    settlement stage of litigation requires the reviewing court to analyze the class
    definition. It is not possible to perform a true and accurate analysis while
    ignoring the controlling interpretation of this definition. 9
    The Claims Administrator’s interpretation must be treated as part and
    parcel of the Settlement Agreement and Class Definition for several reasons.
    First, the very district court that certified the class and oversees the
    settlement’s implementation has repeatedly affirmed this interpretation. 10
    Second, the interpretation issued before the district court entered the final
    certification order and the record demonstrates the district court was aware of
    this. 11 Third, the         Settlement        Agreement        provides that         the     Claims
    9 The majority further suggests that the Claims Administrator’s interpretation of
    causation in the class definition has been waived on appeal because “no party ever formally
    objected” to it, and because BP initially took “no position on the relevance vel non” of the
    policy interpretation. Ante at 6–7. Be this as it may, “we are certainly free ourselves to raise
    an issue of standing as going to Article III jurisdiction . . . .” Lewis v. Casey, 
    518 U.S. 343
    , 394
    (1996) (quoting Mount Healthy City Bd. of Ed. v. Doyle, 
    429 U.S. 274
    , 278, (1977)).
    10   
    See supra
    note 6.
    11   
    Id. 55 Case:
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    Administrator will have authority to make policy decisions and to issue
    guidance. It is illogical to disregard a pronouncement on the meaning of the
    Settlement issuing from the very entity the Settlement established for this
    purpose.
    Lastly, Article III cannot be so easily duped by sleight of hand. Here, the
    district court certified a class based on the written Class Definition in the
    Amended Complaint and Settlement Agreement. This definition initially
    included “as a result of”—a clear causation requirement.           Because of the
    Claims Administrator’s interpretation, it no longer does. The district court
    certified a class settlement agreement that, in pertinent part, no longer exists.
    And now, on appeal, the majority limits its standing analysis to the defunct
    text of Section 1.3.1.2. In essence, this analysis finds Article III satisfied by
    what has been transformed into an empty pleading allegation. But Article III
    demands more. A key function of the standing requirement is to “identify those
    disputes which are appropriately resolved through the judicial process.”
    Whitmore v. Arkansas, 
    496 U.S. 149
    , 155 (1990). Claims for damages that are
    not “fairly traceable to the defendant’s conduct,” 
    Lujan, 504 U.S. at 660
    , are
    not such disputes. Today’s opinion improperly welcomes them into federal
    court.
    B
    The majority further determines that this settlement class certification
    satisfies Article III standing under the Kohen test, which requires that the
    named plaintiffs—as opposed to absent class members—can satisfy Article
    III’s standing requirements. 
    Kohen, 571 F.3d at 676
    ; ante at 15. While I agree
    that the named plaintiffs’ standing is uncontested in this case, Kohen does not
    apply. As also observed by Judge Clement in Deepwater Horizon 
    I, 732 F.3d at 344
    n.12, Kohen does not concern an end of litigation settlement class
    certification. This distinguishing factor is crucial.
    56
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    In Kohen, the court determined that the “possibility or indeed
    inevitability” that the defined class will “often include persons who have not
    been injured by the defendant’s conduct” does not preclude class certification.
    Thus, the court looked only to the named plaintiffs to satisfy Article III
    standing. However, Kohen concerns a pre-trial litigation class certification,
    not a final settlement class certification, and in this presupposes that there
    will be a further stage where the Article III standing requirements will be
    proven up. 
    Kohen, 571 F.3d at 677
    (“If the case goes to trial, this plaintiff may
    fail to prove injury.”). The Kohen opinion relies on the fact that jurisdiction
    alleged at the pleading stage of a class action litigation must eventually be
    substantiated. 
    Id. But, in
    a settlement class certification, like that at bar,
    there will be no additional stages for substantiating standing. The settlement
    ends the litigation. Accordingly, the Kohen “named plaintiffs only” formula for
    evaluating Article III standing is inapplicable here.
    Additionally, the Kohen court actually embraces Denney’s focus on the
    class definition for verifying Article III standing. Kohen specifically rejected
    defendant-appellant’ PIMCO’s argument that the district court needed to
    verify each class members’ individual standing before certifying the class—
    that is, absent class members needed to prove standing before certification. 
    Id. at 676.
    According to the Kohen court, the burden of proving standing at the
    pre-trial class certification stage lies with the named plaintiffs alone. But
    Kohen simultaneously recognizes that a “class should not be certified if it is
    apparent that it contains a great many persons who have suffered no injury at
    the hands of the defendant . . . .” 
    Id. at 677.
    (emphasis added). The court
    specifically noted that “if the class definition clearly were overbroad, this would
    be a compelling reason to require that it be narrowed.” 
    Id. at 678.
    So, without
    concern for proof of standing, Kohen recognizes that, even at the pre-trial class
    certification stage, a certification does not comply with Article III if it embraces
    57
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    a swath of claimants who cannot claim injury-in-fact, causation, or
    redressability.   Here, in light of the controlling interpretation, the class
    definition does exactly that for certain groups of Business Economic Loss
    claimants. 
    See supra
    Part I.A.
    C
    In conclusion, this interpretation creates an overbroad class definition,
    which “includes people who have no legal claim whatsoever.” Sullivan v. DB
    Investments, Inc., 
    667 F.3d 273
    , 340 (3d Cir. 2011) (Jordan, J. dissenting).
    Under its terms, a segment of claimants could enter federal court and receive
    redress for injuries that need not have been caused by the defendant’s conduct.
    Without a causation requirement for class membership, this Settlement
    Agreement encompasses individuals and entities that do not possess the
    requisite justiciable case or controversy. From an administrative perspective
    the elimination of causation may be more efficient, but it is also violates Article
    III, which does not permit the federal courts to administer private handout
    programs. Accordingly, the district court’s Rule 23 certification is not in
    keeping with Article III constraints. See 
    Amchem, 521 U.S. at 613
    .
    II
    In addition to straying beyond Article III jurisdictional constraints, the
    Claims   Administrator’s     interpretation,   by   eliminating   the   causation
    requirement, violates at least two aspects of Rule 23, and runs afoul of the
    Rules Enabling Act, 28 U.S.C. § 2702(b).
    A
    Rule 23(a)(2) requires, as a necessary prerequisite to class certification,
    that “there are questions of law or fact common to the class.” In Wal-Mart
    Stores, Inc. v. Dukes, 
    131 S. Ct. 2541
    , 2551 (2011), the Supreme Court
    interpreted this provision to require that the members of the class have
    “suffered the same injury.” This requires that the class members’ claims
    58
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    No. 13-30095
    “depend upon a common contention,” the “truth or falsity [of which] will resolve
    an issue that is central to the validity of each one of the claims in one stroke.”
    
    Id. (emphasis added).
    The majority asserts that the commonality requirement
    is satisfied by myriad questions of law and fact about BP’s injurious conduct.
    See ante, at 30–31 (listing common questions). Certainly, these contentions are
    central to many class member’s claims.         But Rule 23(a)(2) and Wal-Mart
    require more—the common contentions must go to the validity of each one of
    the claims. Because this class includes a segment of claimants whose injuries
    need not have been caused by the oil spill, this cannot be so. For example,
    “[w]hether BP used an improper well design that unreasonably heightened the
    risk [of an incident]” says nothing about the validity of a claim for economic
    injuries caused by factors other than the oil spill.         As long as the class
    impermissibly aggregates those whose injuries were purportedly caused by the
    oil spill with those without any arguable claim of such causation, questions
    concerning BP’s liability are insufficient to satisfy Rule 23(a) commonality.
    The same argument applies with full force to the Rule 23(a)(3)
    requirement that “the claims or defenses of the representative parties are
    typical of the claims or defenses of the class.” Cf. ante, at 31 n.92. The Supreme
    Court has observed that the “commonality and typicality requirements of Rule
    23(a) tend to merge.” 
    Wal-Mart, 131 S. Ct. at 2550
    –51 n.5. The majority holds
    that typicality is satisfied because “the class representatives—like all class
    members—allege economic and/or property damage stemming directly from
    the Deepwater Horizon spill.” Ante, at 31 n.92. (quoting In re Oil Spill by Oil
    Rig Deepwater Horizon in Gulf of Mexico, on April 20, 2010, 
    910 F. Supp. 2d 891
    , 915 (E.D. La. 2012)). This disregards the unavoidable fact that causation,
    initially alleged in Section 1.3.1.2, has been effectively written out by the
    Claims   Administrator.    Given    the    Claims   Administrator’s     controlling
    59
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    No. 13-30095
    interpretation, all class members do not allege injury “stemming directly” from
    the oil spill. Cf. 
    id. Rule 23
    certification requires that the proposed class meets all the
    prerequisite requirements of Rule 23(a). See W. RUBENSTEIN, A. CONTE & H.
    NEWBERG, NEWBERG ON CLASS ACTIONS § 3:1 (5th ed. 2011). Commonality and
    typicality are absent here.
    B
    The Rules Enabling Act requires that that the rules of procedure “shall
    not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2702(b). The
    class action rules must be applied in keeping with this mandate. See 
    Amchem, 521 U.S. at 613
    . It follows that Rule 23’s aggregation function cannot be used
    to “create new rights and then settle claims brought under them.” Deepwater
    Horizon 
    I, 732 F.3d at 342
    ; see 
    Sullivan, 667 F.3d at 343
    (Jordan, J. dissenting)
    (“Rule 23 [serves] to efficiently handle claims recognized by law, not to create
    new claims.”).
    This Settlement Agreement resolves claims arising under General
    Maritime Law (tort principles of federal common law) and the Oil Pollution
    Act, 33 U.S.C. § 2702(a). Each of these claims contains some sort of causation
    element. In order to prevail in a negligence action, a plaintiff must establish
    that the defendant’s breach of duty is the but-for and proximate cause of the
    injury complained of. 12 Under the Oil Pollution Act, a plaintiff must
    demonstrate that the costs and damages sought “result from” an oil spill
    incident. Thus, under the controlling substantive law, there is no right to
    recover damages for injuries not caused by the defendant’s breach. This
    12The Amended Class Action complaint asserts claims for negligence, gross negligence
    and willful misconduct, and breach of contract under general maritime law. The breach of
    contract claims pertain only to Vessels of Opportunity (“VoO”) claimants.
    60
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    settlement, however, allows individuals and entities whose injuries were not
    caused by the oil spill to claim and receive damage payments. 
    See supra
    , Part
    I.A. That is, the set of eligible claimants is not congruent with the set of actual
    (those injured by the spill) claimants, the latter being merely a subset of the
    former. Thus, the settlement eliminates an essential component of the
    underlying cause of action, creating a legal right for some class members where
    none exists at law. This violates the Rules Enabling Act—by bringing
    claimants without causally related injuries into the class, Rule 23’s
    aggregation function has been improperly used to expand substantive rights. 13
    III
    What makes this case unique, perhaps, is that causation is contemplated
    on the face of the core documents—the Amended Complaint, Class Definition,
    and the Settlement Agreement—but eliminated in application by the Claims
    Administrator’s interpretation. In evaluating whether Article III’s causation
    requirement for standing has been properly demonstrated at the settlement
    class certification stage, I would look to the class definition as it has been
    authoritatively interpreted, not simply as it is ostensibly written. Today, the
    majority takes another path, turning a blind eye to the Claims Administrator’s
    interpretation.
    The concerns identified in this dissent each stem from a common
    problem:     causation has been eliminated for a broad swath of Business
    Economic Loss claimants. For the foregoing reasons, this requires that the
    class be decertified. However, this does not necessarily mean that a Settlement
    Agreement, writ large, is entirely unworkable or that Rule 23 is inapplicable.
    I simply observe that this attempted global settlement fails in a narrow, but
    13 See Deepwater Horizon 
    I, 732 F.3d at 339
    –44 (offering additional insights into the
    impact of the causation policy on Article III, Rule 23 and the Rules Enabling Act).
    61
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    significant, regard. I would vacate the class certification and Settlement
    Agreement, and remand to allow the parties and the district court to design a
    solution that complies with Article III, Rule 23, and the Rules Enabling Act.
    Respectfully, I dissent.
    62
    

Document Info

Docket Number: 13-30095

Filed Date: 1/10/2014

Precedential Status: Precedential

Modified Date: 3/3/2016

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