Buckingham v. Gannon , 563 F.3d 903 ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: TOUCH AMERICA HOLDINGS, 
INC. ERISA LITIGATION,
ROSS BUCKINGHAM; KIM MORAN;
CHARLES A. PORTER,
Plaintiffs-Appellants,
v.
ROBERT GANNON; JERROLD P. No. 08-35059
PEDERSON; PAMELA K. MERRELL;
ELLEN M. SENECHAL; R. W. COPE;  D.C. No.
CV-02-00106-SEH
TUCKER HART ADAMS; ALAN F.
CAIN; JOHN G. CONNORS; R. D.
CORVETTE; KAY FOSTER; JOHN R.
JESTER; CARL LEHRKIND, III;
DEBORAH D. MCWHINNEY; NOBLE
E. VOSBURG,
Defendants,
and
THE NORTHERN TRUST COMPANY,
Defendant-Appellee.

4713
4714 IN RE TOUCH AMERICA HOLDINGS
In re: TOUCH AMERICA HOLDINGS, 
INC. ERISA LITIGATION,
ROSS BUCKINGHAM; KIM MORAN;
CHARLES A. PORTER,
Plaintiffs,
v.
ROBERT GANNON; JERROLD P. No. 08-35060
PEDERSON; PAMELA K. MERRELL;
ELLEN M. SENECHAL; R. W. COPE;  D.C. No.
CV-02-00106-SEH
TUCKER HART ADAMS; ALAN F. OPINION
CAIN; JOHN G. CONNORS; R. D.
CORVETTE; KAY FOSTER; JOHN R.
JESTER; CARL LEHRKIND, III;
DEBORAH D. MCWHINNEY; NOBLE
E. VOSBURG,
Defendants-Appellants,
THE NORTHERN TRUST COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
November 17, 2008—Seattle, Washington
Filed April 22, 2009
Before: Alex Kozinski, Chief Judge, Betty B. Fletcher and
Johnnie B. Rawlinson, Circuit Judges.
Per Curiam Opinion
4716 IN RE TOUCH AMERICA HOLDINGS
COUNSEL
Steve Berman and Andrew M. Volk, Hagens Berman Sobol
Shapiro LLP, Seattle, Washington; Douglas A. Buxbaum and
John M. Fitzpatrick, Buxbaum Daue & Fitzpatrick, Missoula,
Montana; Andrew D. Huppert, Missoula, Montana; Thomas
M. Peterson, Morgan Lewis & Bockius, LLP, San Francisco,
California; and J. Gerard Stranch, IV, James G. Stranch, III
IN RE TOUCH AMERICA HOLDINGS 4717
and Jane B. Stranch, Branstetter Stranch & Jennings PLLC,
Nashville, Tennessee, for the plaintiffs-appellants.
J. David Jackson and Frederick Matthew Ralph, Dorsey &
Whitney, LLP, Minneapolis, Minnesota; Nicole A. Diller and
Lisa S. Serebin, Morgan Lewis & Bockius, LLP, San Fran-
cisco, California; Patrick T. Fleming, Fleming & O’Leary,
Butte, Montana, for the defendants-appellants.
John A. Litwinski and Nancy G. Ross, McDermott Will &
Emery, LLP, Chicago, Illinois; and Chris C. Scheithauer,
McDermott Will & Emery, LLP, Irvine, California, for the
defendant-appellee.
OPINION
PER CURIAM:
We consider whether we have jurisdiction over an interloc-
utory appeal from an order disapproving a class settlement.
Facts
Plaintiffs were employees of the Montana Power Company
and participated in its retirement plan. Defendants were the
plan’s trustee and directors of Montana Power. Plaintiffs
allege that defendants mismanaged the plan, in breach of their
fiduciary duty. Plaintiffs and the directors negotiated a class
settlement, the core of which was a cash payment of nearly all
the funds remaining in the directors’ fiduciary liability insur-
ance policy. The settlement also included two conditions:
First, the directors agreed to cooperate in the ongoing suit
against the plan trustee; second, the district court had to bar
suits for contribution or indemnity against the directors. The
court disapproved the settlement and the parties seek to
appeal.
4718 IN RE TOUCH AMERICA HOLDINGS
Analysis
[1] 1. We normally review only “final decisions of the dis-
trict courts of the United States.” 28 U.S.C. § 1291. This
reflects a preference against piecemeal appeals as old as the
first Judiciary Act. Baltimore Contractors, Inc. v. Bodinger,
348 U.S. 176, 178 (1955), rev’d on other grounds, Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 282-83
(1988). The parties agree that disapproving a class settlement
isn’t a final decision.
[2] However, we also have jurisdiction to review
“[i]nterlocutory orders of the district courts . . . granting, con-
tinuing, modifying, refusing or dissolving injunctions.” 28
U.S.C. § 1292(a)(1). “Because § 1292(a)(1) was intended to
carve out only a limited exception to the final-judgment rule,
we have construed the statute narrowly,” but some disapprov-
als of class settlements are appealable under the section as
orders refusing an injunction. Carson v. American Brands,
Inc., 450 U.S. 79, 84 (1981). To be immediately appealable,
orders disapproving class settlements must satisfy three
requirements: “First, the interlocutory order must have the
practical effect of denying an injunction. Second, the order
must have ‘serious, perhaps irreparable, consequence[s].’
Finally, the order must be one that can be ‘effectively chal-
lenged’ only by immediate appeal.” EEOC v. Pan Am World
Airways, Inc., 796 F.2d 314, 316 (9th Cir. 1986) (citing Car-
son, 450 U.S. at 83-84).
[3] The order here fails to meet the second requirement, so
we need not consider the first or the third. The parties offer
two reasons why they believe the order’s consequences are
“serious, perhaps irreparable.” First, quoting Carson, they
contend that the order has “the ‘serious, perhaps irreparable,
consequence’ of denying the parties their right to compromise
their dispute on mutually agreeable terms.” 450 U.S. at 88. It
is of course true that the parties were not permitted to settle
the case on terms they found mutually agreeable; that’s true
IN RE TOUCH AMERICA HOLDINGS 4719
of every order disapproving a proposed settlement. But it’s
not by itself sufficient to meet the second Carson require-
ment.
[4] As EEOC explained, Carson’s conclusion that the order
would have serious and potentially irreparable consequences
relied on its further finding that the order “completely fore-
closed any further settlement negotiations short of outright
admission of [liability] . . . and complete restructuring of the
class relief.” EEOC, 796 F.2d at 317. If the parties are “not
being denied the right to settle the case on any mutually
agreeable terms,” but “merely being denied the right to settle
the case on the particular terms of the current proposed con-
sent decree, which the district court found unreasonable,” this
is not a sufficiently serious consequence for the order to be
appealable. Id.[5] Here, the district court did not indicate that it would dis-
approve of any possible settlement, or even that it absolutely
disapproved of any term of the proposed settlement. Rather,
the district court found that the particular combination of
terms that the parties had agreed upon was unfair to the class.
As in EEOC, the court’s objections to the proposed agreement
“focuse[d] primarily on the inadequacy of the monetary settle-
ment.” 796 F.2d at 317. The court here explained that “the
real . . . significant issue of this proposed settlement is the
amount of money to be paid.” It characterized the proposed
settlement as “three cents on the dollar . . . that’s not good in
terms of recovery. It’s a pittance . . . of the total amount of
loss.”
[6] While the district court also had reservations about the
bar order and cooperation provision, it might have been will-
ing to approve those provisions if the monetary settlement had
been larger, or to approve the monetary settlement if the other
provisions had been absent. The order left the parties free to
negotiate a settlement agreement more favorable to the class.
See Grant v. Local 638, 373 F.3d 104, 109 (2d Cir. 2004) (the
4720 IN RE TOUCH AMERICA HOLDINGS
parties “may be deprived of [their] opportunity to settle this
case . . . on terms as favorable as those contained in the settle-
ment agreement. However . . . more is required in order to
find irreparable harm” under Carson).
[7] The parties’ second argument is that the “wasting insur-
ance policy” which was to pay for the settlement will be
depleted by further litigation. This is not adequate to show
that the order will have serious, perhaps irreparable conse-
quences; the parties have not shown that the insurance fund
is the only source for a settlement or recovery. Indeed, one of
the district court’s principal objections to the agreement was
that it limited the monetary settlement to the insurance fund,
allowing the defendants to “walk away from this lawsuit with
no personal liability.” In Carson, the refused injunctive relief
would have led to an “immediate restructuring of [the
employer’s] transfer and promotional policies,” so the
employees were harmed by the continuing effect of the alleg-
edly discriminatory policies. 450 U.S. at 89. Here, the parties
simply point to the cost of further litigation; this is not a seri-
ous or irreparable consequence. We lack jurisdiction over this
appeal.
[8] 2. In the alternative, the parties ask us to treat their
appeal as a petition for a writ of mandamus. Mandamus is not
appropriate here; the district court’s order did not constitute
“usurpation of judicial power or a clear abuse of discretion.”
Cordoza v. Pacific States Steel Corp., 320 F.3d 989, 998 (9th
Cir. 2003).
DISMISSED.