Tennille v. Western Union (Nelson)

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 1, 2015
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JAMES P. TENNILLE; ADELAIDA
DELEON; YAMILET RODRIGUEZ;
ROBERT P. SMET, individually and on
behalf of all others similarly situated,
Plaintiffs - Appellees,
v.
THE WESTERN UNION COMPANY; Nos. 13-1310, 13-1317
WESTERN UNION FINANCIAL
SERVICES, INC.,
Defendants - Appellees.
SIKORA NELSON; PAUL DORSEY,
Objectors – Appellants.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:09-CV-00938-JLK-KMT)
John E. Anding (Theodore J. Westbrook with him on the briefs), Drew, Cooper &
Anding, Grand Rapids, Michigan, for Objector-Appellant Sikora Nelson.
Paul Dorsey, pro se.*
*After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist the determination of Paul Dorsey’s appeal,
Jeffrey A. Leon, Complex Litigation Group LLC, Highland Park, Illinois (Jamie E.
Weiss, Complex Litigation Group LLC, Highland Park, Illinois, Richard J. Burke,
Complex Litigation Group, LLC, St. Louis, Missouri, Jonathan Shub, Seeger Weiss LLP,
Philadelphia, Pennsylvania, Seth A. Katz, Burg Simpson Eddredge Hersh & Jardine P.C.,
Englewood, Colorado, Jim S. Calton, Jr., Calton Legal Services, SP, Eufaula, Alabama,
James E. Cecchi, Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C., Roseland, New
Jersey, and Mitchell Baker, Denver, Colorado, for Plaintiffs – Appellees; Charles G. Cole
and Thomas M. Barba, Steptoe & Johnson, LLP, Washington, D.C., Jason A Yurasek,
Perkins Coie LLP, San Francisco, California, and Jess A. Dance, Perkins Coie LLP,
Denver, Colorado), with him on the brief, for Defendants-Appellees.
Before LUCERO, EBEL, and HOLMES, Circuit Judges.
EBEL, Circuit Judge.
These appeals stem from the settlement of a class action. Two unnamed class
members challenge the district court’s decision to certify the class and approve the
settlement. They argue, among other things, that the class representatives cannot
adequately represent all of the class members; the settlement is unfair because it uses
primarily the money belonging to the class to fund the settlement; and the district court
did not adequately notify absent class members of the class action and the settlement.
We conclude that their objections lack merit. Therefore, having jurisdiction under 28
U.S.C. § 1291, we AFFIRM the district court’s decisions.
No. 13-1317. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). That appeal is
therefore ordered submitted without oral argument.
2
BACKGROUND
I. Factual background
At any given time, Defendants Western Union Company and Western Union
Financial Services, Inc. (“Western Union”) holds over $100 million that belongs to its
customers. These funds are comprised of money transfers that customers attempted to
send through Western Union which failed to be delivered for some reason. The funds
belong to Western Union’s customers. After deducting its administrative fees, Western
Union would return these funds any time that a customer requested a refund. But, while
Western Union usually knows within minutes if a wire transfer fails, the sending
customer is often unaware that his wire transfer failed and so does not know to ask
Western Union to return his money. And Western Union, although possessing its
customer’s contact information, does not notify the customer that his wire transfer failed.
Instead, Western Union holds the unclaimed money and earns interest on it. Eventually,
after several years, the law of the state where the customer initiated the wire transfer
requires Western Union to notify the customer that the unclaimed funds will soon escheat
to the state. At that time, Western Union uses the contact information that it has had all
along to give the customer this required notice. But often Western Union’s contact
information is no longer accurate. Thus, historically Western Union’s customers reclaim
only about 15% of the escheating funds. The rest of the unclaimed funds (minus Western
Union’s administrative fees) eventually escheat to the relevant state, which will continue
to hold these unclaimed funds for any customer who later claims them. In the meantime,
the state earns interest on the funds for itself.
3
II. This litigation
Four Western Union customers whose wire transfers failed (“Plaintiffs” or “named
Plaintiffs”) sued Western Union, alleging state-law claims for, among other things,
conversion, unjust enrichment, and breach of fiduciary duty. As remedies, Plaintiffs
sought declaratory and injunctive relief and damages.
Named Plaintiffs initiated this litigation as a class action on behalf of all Western
Union customers whose wire transfers failed.1 This class included three groups: 1) those
customers who, like the named Plaintiffs, had already reclaimed their funds from Western
Union; 2) those customers whose funds had already escheated to a state; and 3) those
customers whose funds Western Union was currently holding. Named Plaintiffs asserted
this class action under, e.g., Fed. R. Civ. P. 23(b)(3), seeking “damages designed to
secure judgments binding all class members save those who affirmatively elected to be
excluded,” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614-15 (1997).
The district court, before deciding whether to certify the class, made several
preliminary rulings, including denying Western Union’s motion to compel the named
Plaintiffs to arbitrate their claims against Western Union individually. Western Union
took an interlocutory appeal from that decision. See 9 U.S.C. § 16(a)(1)(A).2
1
The district court had jurisdiction over this case under the Class Action Fairness Act
(“CAFA”) because there is more that $5 million at issue and at least one member of the
class of plaintiffs is a citizen of a State different from the defendants. See 28 U.S.C.
§ 1332(d)(2)(A).
2
That appeal, No. 11-1531, remains in the Tenth Circuit on abated status. Once the
opinion in this case is issued, the parties are requested promptly to contact the Clerk of
4
III. Settlement agreement
While the interlocutory appeal was pending, Western Union and the named
Plaintiffs, aided by the Tenth Circuit’s mediator, negotiated a settlement of the class
action. Summarizing, that settlement provides for the following: First, Western Union
will change its business practices to notify its customers when their wire transfers failed.
In addition, Western Union will help customers whose unclaimed funds have already
escheated to a state reclaim their money from the relevant state and Western Union will
pay these customers interest for the time Western Union held their funds before
escheatment.
The rest of the settlement will be funded using approximately $135 million in
unclaimed funds belonging to Western Union customers that Western Union continues to
hold. From that fund, a neutral administrator will pay (1) an incentive award of $7,500 to
each of the four named Plaintiffs; (2) interest to customers who, like the named Plaintiffs,
have already reclaimed their money from Western Union, for the time that Western
Union held their money after their wire transfers failed; (3) to customers whose money
Western Union still holds, the unclaimed funds plus interest for the time Western Union
held their money, minus Western Union’s administrative fees; and (4) the costs of
administering the settlement. In addition, the district court awarded 30% of this
settlement fund, or more than $40.57 million, to class counsel as attorneys’ fees.3
the Court to determine how that pending appeal should thereafter proceed or be
dismissed.
3
Western Union has challenged that fee award in another appeal, No. 14-1432. We
express no opinion as to the propriety of the fee award in this opinion.
5
The settlement administrator will disburse money from the settlement fund only to
class members who file claims with the administrator. The settlement obviously
contemplates that many class members will not file claims because the settlement fund is
comprised only of the funds from the failed wire transfers that already belong to class
members. Yet the settlement uses this fund, not only to refund money from the failed
wire transfers, but also to pay (1) interest to all class members, (2) the costs of
implementing the settlement, and (3) attorneys’ fees to class counsel. If too many class
members file claims, the administrator will not be able to pay class members the full
amount to which they are entitled under the settlement agreement. The record, however,
indicates that this is unlikely because historically only 15% of customers reclaim money
from Western Union once Western Union notifies the customers, prior to escheatment,
that it is holding their unclaimed funds. If more class members file claims than the
settlement fund can pay, the settlement administrator will pay class members only a pro
rata share of the amount to which they are entitled. In return for these payments, either in
full or pro rata, class members who do not opt out of the settlement will release Western
Union from any liability stemming from its retention and use of class members’ money
from the failed wire transfers.
If there is any of the settlement fund remaining after paying all the claims class
members file, then the administrator will place that remaining money in a cy pres fund to
be distributed by the district court at its discretion. The parties suggest that the court
disburse the cy pres fund among the states to which the unclaimed funds would have
escheated. The settlement does not take effect until after all appeals have been resolved.
6
IV. Remand for class certification and approval of the settlement
Because the parties reached their settlement while Western Union’s interlocutory
appeal was pending, this court remanded the case to permit the district court to consider
whether to certify the class and approve the class settlement. On remand, the district
court preliminarily certified the class, defined as
[a]ll persons (a) who initiated any Western Union Transaction in the United
States on or after January 1, 2001 and on or before the date of Preliminary
Approval [January 3, 2013], whose Western Union Transaction was not
redeemed within 60 calendar days; and (b) who either (i) have not claimed
their money transfer funds (nor had that money claimed on their behalf)
from Western Union; or (ii) were informed by written communication that
their money was about to escheat to the state, district, territory, or U.S.
jurisdiction in which their money transfers were initiated, and who sought
and received a refund of their money but did not receive a payment for
interest Western Union earned on that money.
(Nelson App. at 451-52 ¶ 3.) The district court also preliminarily approved the
settlement, directed that notice of the class action and the proposed settlement be sent to
approximately 1.3 million putative class members, gave class members the opportunity to
opt out, and gave those choosing to remain in the class an opportunity to object to the
terms of the settlement. Unnamed class members Sikora Nelson, represented by counsel,
and Paul Dorsey, acting pro se (“Objectors”), were among one dozen class members who
objected to the settlement. After conducting a “fairness hearing,” see Fed. R. Civ. P.
23(e)(2), the district court overruled all of the objections; finally certified the class;
approved the settlement as fair, reasonable and adequate; and entered final judgment.
Nelson and Dorsey each appeal. Although the district court required Nelson and Dorsey
each to post an appeal bond of over $1 million in order to pursue their appeals, this court
7
reduced the amount of the bond to $5,000. See Tennille v. W. Union, 774 F.3d 1249,
1251, 1258 (10th Cir. 2014). Nelson and Dorsey each posted that bond.
STANDING
As a threshold matter, the named Plaintiffs suggest that Objectors lack standing to
raise some of their appellate arguments. As members of the class, however, each
Objector has Article III and prudential standing to participate in this litigation. See
Devlin v. Scardelletti, 536 U.S. 1, 6-7 (2002).
The named Plaintiffs’ real complaint is that Objectors are raising new arguments
for the first time on appeal that they failed to preserve in the district court. Although we
“generally will not consider new arguments on appeal,” DG ex rel. Stricklin v.
Devaughn, 594 F.3d 1188, 1195 (10th Cir. 2010), we have discretion to do so, see United
States v. Jarvis, 499 F.3d 1196, 1202-03 (10th Cir. 2007). We exercise that discretion
here because we are satisfied that the arguments Objectors now raise on appeal were
before the district court in some form.
DISCUSSION
Objectors Nelson’s and Dorsey’s appellate arguments fall into three general
categories: objections to 1) certification of the class, 2) approval of the settlement, and
3) the procedures the district court used to reach these determinations.4
4
Nelson, represented by counsel, challenges class certification, the fairness of the
settlement, the adequacy of notice sent to the class, and the district court’s independent
exercise of its discretion. Dorsey, proceeding pro se, adopts Nelson’s argument
challenging the district court’s independent exercise of its discretion and offers several
additional challenges to the notice sent to class members.
8
I. The district court did not abuse its discretion in certifying the class
We review the district court’s decision to certify the class for an abuse of
discretion. See In re Urethane Antitrust Litig., 768 F.3d 1245, 1253 (10th Cir. 2014),
petition for cert. filed, (U.S. Mar. 9, 2015) (No. 14-1091, 14A665). Nelson contends that
the district court should not have certified the class because the named Plaintiffs, as the
class’s representatives, could not fairly and adequately protect the interests of the class as
a whole, see Fed. R. Civ. P. 23(a).5
The inquiry into whether a class representative can protect the class’s interest
“serves to uncover conflicts of interest between named parties and the class they seek to
represent.” Amchem Prods., 521 U.S. at 625. In order to protect the class’s interest
adequately and fairly, “a class representative must be part of the class and possess the
same interest and suffer the same injury as the class members.” Id. at 625-26 (internal
quotation marks, alterations omitted). Thus, the class representatives’ interest must be
5
Named Plaintiffs, as the parties seeking certification of the class, had to demonstrate to
the district court that: “(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the class; (3) the claims
or defenses of the representative parties are typical of the claims or defenses of the class;
and (4) the representative parties will fairly and adequately protect the interests of the
class.” Fed. R .Civ. P. 23(a) (emphasis added); see also Tabor v. Hilti, Inc., 703 F.3d
1206, 1228 (10th Cir. 2013). In addition to meeting these four requirements, a class
action must also be maintainable under one of the three categories of class actions set
forth in Rule 23(b). See Amchem Prods., 521 U.S. at 614. The district court determined
that this class action was maintainable under Rule 23(b)(3), which includes “class actions
for damages designed to secure judgments binding all class members save those who
affirmatively elected to be excluded,” Amchem Prods., 521 U.S. at 614-15. There are a
number of requirements Plaintiffs must meet before a court will certify a Rule 23(b)(3)
class. Of these Rule 23(a) and (b)(3) requirements, Nelson, on appeal, contends only that
named Plaintiffs failed to establish that they could fairly and adequately protect the
interest of the class as a whole.
9
“coextensive” with the interest of the class; but this does not mean that the class
representatives’ “positions have to be identical” with the positions of the absent class
members. 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
& Procedure § 1769, pp. 434-35 (3d ed. 2005). “Rather . . . the representatives and the
class members must share common objectives and legal or factual positions . . . .” Id.
“[O]nly a conflict that goes to the very subject matter of the litigation will defeat a party’s
claim of representative status.” Id. § 1768, pp. 390.
If there is a conflict preventing named class representatives from protecting the
interest of the entire class adequately, the district court has discretion to order subclasses,
each with their own named representative. See id. § 1759, pp. 133-34; see also Fed. R.
Civ. P. 23(c)(5). This is Nelson’s argument on appeal, that the district court, before
certifying the class, should have created several subclasses because the named Plaintiffs
could not adequately protect the interests of all class members, for three reasons.
A. The named Plaintiffs, but not all class members, had contractually agreed
with Western Union to arbitrate their disputes
The four named Plaintiffs’ contracts with Western Union required those Plaintiffs
to arbitrate any disputes they had with Western Union and to do so individually and not
as a class. Not all class members had such arbitration clauses in their contracts with
Western Union. Objector Nelson, for example, had no such arbitration agreement. In
light of that, she contends that the named Plaintiffs cannot adequately protect her interest,
10
and the interest of similarly situated class members.6
At the time the district court certified the class, that court had already ruled that
the arbitration provisions in the named Plaintiffs’ contracts with Western Union were
unenforceable. See Charron v. Wiener, 731 F.3d 241, 249-54 & 253 n.9 (2d Cir. 2013)
(addressing adequacy of class representatives in light of district court’s prior rulings,
regardless of whether prior rulings were legally correct), cert. denied, 134 S. Ct. 1941
(2014); 1 Newberg on Class Actions § 3:58 (noting that, in order to prevent class
representative from adequately representing class’s interest, a conflict of interest “must
be manifest at the time of certification”).
It is true that the named parties settled the class’s claims during the pendency of
Western Union’s interlocutory appeal challenging the district court’s decision not to
enforce the arbitration provisions. Had Western Union won that appeal, the named
Plaintiffs could not have participated in this class action. In light of that, Nelson further
argues that she, and other class members without arbitration provisions, could have
negotiated a much better settlement than the named Plaintiffs.
Under the circumstances presented here, we cannot agree. The named parties
acknowledge that they negotiated the settlement “in the shadow of the district court’s
6
Nelson raised this argument briefly during the fairness hearing before the district court.
In doing so, however, Nelson argued, not that the arbitration clauses prevented the named
Plaintiffs from adequately protecting the interests of the entire class, but instead that the
fact that only some class members had arbitration provisions made the class settlement
unfair and not reasonable. Nelson, therefore, never asked the district court specifically to
certify a subclass for class members like her who had not agreed with Western Union to
arbitrate disputes.
11
earlier ruling[]” declining to enforce the arbitration provisions, Charron, 731 F.3d at 253
n.9. But Nelson, too, had her own obstacle that might have prevented her from
participating in this class action. While she had not agreed with Western Union to
arbitrate disputes, Nelson had agreed not to assert any class-action claims against
Western Union. Like the named Plaintiffs, then, Nelson (and class members similarly
situated to her), also had an incentive to settle the class claims in order to avoid the
possible enforcement of a procedural obstacle that would have prevented her from
participating in this class litigation. In light of that, the named Plaintiffs’ interests were
sufficiently coextensive with Nelson’s interests, and the interests of those class members
like her, who had class-action waivers.7
B. Michigan class members like Nelson can recover treble damages on their
conversion claims, but the four named Plaintiffs cannot
None of the named Plaintiffs were Michigan residents. But Objector Nelson is.
She argues that a 2005 Michigan statute, Mich. Comp. Laws § 600.2919a, permits her,
and class members like her who initiated failed wire transactions in Michigan after 2005,
to recover treble damages from Western Union, in addition to actual damages, for
conversion.8 Nelson thus contends that, because she could have recovered much more
7
Nelson asserts that her class-action waiver is “void as a matter of law.” (Nelson Br. at
21 n.13.) But cf. Am. Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304, 2307,
2309-10 (2013) (upholding contractual waiver of class arbitration). But Nelson cites no
persuasive authority to support that conclusion. The enforceability of her class-action
waiver, then, like the enforceability of the named Plaintiffs’ arbitration provisions,
remained a contested, or at least potentially contested, issue prior to the settlement.
8
Michigan Compiled Laws § 600.2919a specifically provides, in pertinent part, that
12
from Western Union than the named Plaintiffs could on their conversion claims, the
named Plaintiffs could not adequately represent her interests and the interests of similarly
situated Michigan class members.
At the time that the district court decided that the named Plaintiffs could
adequately protect the class’s interest as a whole, however, the district court had already
ruled that Colorado law governed all of the class members’ conversion claims. Nelson
never challenged, or even acknowledged, that prior ruling when she argued to the district
court that she could obtain a greater conversion recovery than the named Plaintiffs.9 In
light of that, there was no manifest conflict of interest between Nelson and the named
Plaintiffs at the time the district court determined that those named Plaintiffs could
(1) A person damaged as a result of either or both of the following may
recover 3 times the amount of actual damages sustained, plus costs and
reasonable attorney fees:
(a) Another person’s stealing or embezzling property or converting
property to the other person’s own use.
....
(2) The remedy provided by this section is in addition to any other right or
remedy the person may have at law or otherwise.
An award of treble damages is discretionary under § 600.2919a, and it is left to the trier
of fact to determine whether treble damages are warranted in any given case. See Aroma
Wines & Equip., Inc. v. Columbia Distrib. Servs., Inc., 844 N.W.2d 727, 732 (Mich. Ct.
App. 2013) (per curiam), appeal granted on other grounds, 852 N.W.2d 901 (Mich.
2014).
9
When Nelson raised this argument in the district court, she did so, not to challenge the
adequacy of the class representatives, but instead to challenge the fairness of the
settlement. Nelson does not reassert that specific fairness argument on appeal.
13
adequately represent the class as a whole. See 1 Newberg on Class Actions § 3:58.
It was not until her reply brief filed with this court that Nelson first argued that the
district court erred when it determined that Colorado law governed all of the class’s
conversion claims. Because Nelson waited so long to make this argument, she has
waived it. See Martin K. Eby. Constr. Co. v. OneBeacon Ins. Co., 777 F.3d 1132, 1142
(10th Cir. 2015).10
But even if Michigan, rather than Colorado, law applied to Nelson’s conversion
claim, an award of treble damages is only discretionary under Michigan law. For these
reasons, the district court did not abuse its discretion in determining that the named
Plaintiffs could adequately protect the interests of Michigan class members.
C. Although the named Plaintiffs already reclaimed their money from
Western Union, Western Union still holds funds belonging to Nelson and
other similarly situated class members
Nelson next argues that the four named Plaintiffs could not adequately protect the
interest of the entire class because the named Plaintiffs had already reclaimed their
10
The parties agree that Colorado choice-of-law rules apply to the question of which
state’s law governs class members’ conversion claims. The parties further agree that the
relevant question, in making that choice-of-law determination, is which state had the
closest relationship to the conversion claims. The district court determined that Colorado
had the closest connection because Colorado is where Western Union decided, as a
policy, to retain its customers’ money without notifying them of failed wire transfers. In
her reply brief on appeal, Nelson argues instead that the law where a class member
initiated a failed transfer has a closer connection to the conversion because that is where
the class member suffered the loss of the use of her money during the time Western
Union kept the funds. We do not need to rule on that choice-of-law issue because it was
not preserved for us on appeal. But certainly the position taken by the district court is a
defensible position that would need to be considered in evaluating the parties’ similar or
disparate interests.
14
money from Western Union.11 Therefore, in this action, the named Plaintiffs seek to
recover only the interest that Western Union earned while it retained those Plaintiffs’
money and the administrative fees that Western Union charged the named Plaintiffs for
holding their money. On the other hand, because Western Union continues to hold
money belonging to Nelson and those class members similarly situated to her, they seek
to reclaim their money, plus interest and fees.12
This difference in circumstances between class members is not, by itself, sufficient
to preclude the named Plaintiffs from adequately and fairly representing the entire class
of customers whose money Western Union retained after their wire transfers failed.
Western Union’s challenged conduct was the same toward all class members. See 7A
Wright, Miller & Kane, Federal Practice & Procedure § 1769, pp. 434-35 (class
representatives’ interests must be “coextensive” with the class members’ interests, but
need not “be identical. Rather . . . the representatives and the class members must share
11
Nelson did not make this argument in the district court. Nor did Nelson ask the district
court to create a subclass on this basis. Attorneys general from several states did raise
this argument to the district court, but they did so to challenge the fairness of the class
settlement, not the adequacy of the class representatives.
12
On appeal, the named Plaintiffs try to bolster their ability to represent the entire class
by asserting that Western Union actually continues to hold money belonging to two of the
four of named Plaintiffs. But in their second amended complaint, the named Plaintiffs
alleged that all four of them had already reclaimed their money from Western Union.
And the named Plaintiffs do not cite to any evidence that they later presented to the
district court, in response to the attorneys general’s argument, that established that
Western Union continued to hold funds belonging to some of the named Plaintiffs. See
generally Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (holding party
seeking class certification must be prepared to prove he meets all of Rule 23’s class
certification requirements).
15
common objectives and legal or factual positions . . . .”).
Nelson’s additional argument, that the named Plaintiffs negotiated a settlement
that might result in Nelson and those class members who still need to reclaim their
money from Western Union not recovering all of the money that Western Union is
holding for them, is a challenge to the fairness of the settlement rather than to the
adequacy of the named Plaintiffs’ representation. See Wal-Mart Stores, Inc. v. Visa
U.S.A., Inc., 396 F.3d 96, 113 (2d Cir. 2005). We address that fairness argument next.
II. The district court did not abuse its discretion in approving the settlement as fair,
adequate, and reasonable
When, as here, the proposed settlement will “bind class members, the court may
approve it only after a hearing and on finding that it is fair, reasonable, and adequate.”
Fed. R .Civ. P. 23(e)(2). We review the district court’s decision to approve a class
settlement for an abuse of discretion. See N. Eng. Health Care Employees Pension Fund
v. Woodruff, 512 F.3d 1283, 1290 (10th Cir. 2008). In deciding whether to approve a
class settlement, a district court considers whether “(1) the settlement was fairly and
honestly negotiated, (2) serious legal and factual questions placed the litigation’s
outcome in doubt, (3) the immediate recovery was more valuable than the mere
possibility of a more favorable outcome after further litigation, and (4) [the parties]
believed the settlement was fair and reasonable.” Weinman v. Fid. Capital Appreciation
Fund (In re Integra Realty Res., Inc.), 354 F.3d 1246, 1266 (10th Cir. 2004).
Focusing on the second and third factors, Nelson contends that the settlement is
16
unfair because absent class members like her, who have not yet reclaimed their money
from Western Union, will finance most of the settlement for the entire class, including
paying class counsel’s attorneys’ fees, the administrative costs of the settlement, the
incentive awards to the four named Plaintiffs, and interest to those class members who
have already reclaimed their money from Western Union. Yet, depending on how many
class members file claims, Nelson and similarly situated class members may not be able
to reclaim the full amount of money Western Union is holding for them, money that they
could have recovered simply by asking Western Union for a refund. Nelson further
suggests that the settlement is unfair because Western Union gets off easy; that is,
Western Union, as the alleged wrongdoer, should be funding the settlement to a greater
extent than it is.13
We are not unsympathetic to Nelson’s argument. The settlement is primarily
funded by money that everyone agrees belongs to some of the absent class members like
Nelson. The named Plaintiffs, who do not own any of this money, negotiated a
settlement that gives almost one-third of this fund to their attorneys and further uses this
money to pay themselves incentive awards, all class administrative costs, and interest to
themselves and class members like them for the time Western Union held their funds.
Western Union uses this fund, which it does not own, to negotiate a release of all class
members’ claims against it stemming from its retention of their money without telling the
13
As previously mentioned, although Nelson did not raise this argument in the district
court, several states’ attorneys general challenged the fairness of the settlement on this
basis in an amicus brief filed with the district court. The district court, therefore, did
consider this argument before approving the settlement.
17
class members that their wire transfers failed. Western Union also gets to keep all of the
administrative fees it charged its customers for holding their money, approximately $29
million, and most of the $19 million in interest it earned using its customers’ unclaimed
money. Western Union itself only has to pay interest to those class members whose
property has already escheated to a state.
Nonetheless, Nelson’s claim of unfairness is ultimately unpersuasive. First, even
though all Nelson had to do to reclaim her money from Western Union was to ask for a
refund, it is likely that, without notice of this class action, Nelson and most other
similarly situated class members would not have known that Western Union was holding
their money. And through the settlement, class members will recover interest for the time
during which Western Union held these funds, something they would not have received
simply by asking Western Union to return their money. Further, without this class action,
Western Union would have had no incentive to change its business practices.
Absent the class settlement, the parties would have had to litigate a number of
serious legal issues, including: 1) procedural obstacles to this class action, such as
customers’ agreements with Western Union to arbitrate disputes individually and to
waive class-action claims; 2) Western Union’s defenses, including the fact that the
contracts with its customers did not require Western Union to notify them that their
money transfers failed, but did require customers to pay Western Union administrative
fees, and 3) the possibility of a variety of other defenses that might apply to individual
customer’s claims. In light of those serious disputed legal issues, the outcome of this
litigation was uncertain and further litigation would have been costly.
18
It is true that, through the settlement, class members who do not opt out of the
class will have to release all claims they might have against Western Union stemming
from its retention of its customers’ unclaimed money, including claims for conversion,
unjust enrichment and breach of fiduciary duty. But in return class members will recover
almost all of the direct damages that they would have recovered if they had succeeded at
trial, their unclaimed money plus interest and a change in Western Union’s business
practices. The class members did not obtain, through the settlement, the return of the
administrative fees that Western Union charged class members to hold their unclaimed
money and damages on their claims of conversion, unjust enrichment, and breach of
fiduciary duty. But that is the nature of a settlement. We cannot say that it was
unreasonable for the class to agree to forego recovering those administrative fees, which
were provided for in the contracts customers had with Western Union, and damages on
the conversion, unjust enrichment and breach-of-fiduciary-duty claims, instead of
deciding to undertake expensive litigation, with an uncertain outcome, in order to try to
obtain these additional recoveries.
Moreover, the settlement provides that Nelson will have the same recovery as all
other class members: her money (minus administrative fees) plus interest, and Western
Union’s agreement to stop this practice. This assumes, of course, that the settlement fund
will be sufficient to pay all those class members who file claims. As previously
mentioned, there is the possibility that, depending on the number of claims filed against
the settlement fund, Nelson and other class members may not be able to recover fully.
But the likelihood of that happening is not very great, given the fact that, historically,
19
only 15% of customers reclaim money from Western Union after Western Union notifies
them that it is holding these funds. Nelson presents no evidence to the contrary. But
even if class members like Nelson recoup only a pro rata portion of the money that
belongs to them, it may be more than these class members would have ever reclaimed
had Western Union’s retention of these funds remained unknown to them until the funds
were about to escheat to a state.
For these reasons, we cannot say that the district court, having considered the
serious legal questions that placed the litigation’s outcome in doubt and the value of the
immediate recovery provided by this settlement with only the possibility of a more
favorable outcome after further litigation, see In re Integra Realty Res., 354 F.3d at 1266,
abused its discretion in approving the settlement as fair, reasonable, and adequate.
III. Procedure
A. Notice to class members
Rule 23(c)(2), Fed. R. Civ. P., “provides that, in any class action maintained under
subdivision (b)(3), each class member shall be advised that he has the right to exclude
himself from the action on request or to enter an appearance through counsel, and further
that the judgment, whether favorable or not, will bind all class members not requesting
exclusion.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). “To this end, the
[district] court is required to direct to class members ‘the best notice practicable under the
circumstances including individual notice to all members who can be identified through
20
reasonable effort.’” Id. (quoting Rule 23(c)(2)).14 Rule 23’s notice requirements are
designed to satisfy due process by providing unnamed class members the right to notice
of certification and settlement, and a right to be heard. See id. at 173-74. Notice,
therefore, “must be reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present
their objections.” Id. at 174 (internal quotation marks omitted).
We review de novo questions of notice that implicate due process. See DeJulius v.
N. Eng. Health Care Employees Pension Fund, 429 F.3d 935, 942-43 (10th Cir. 2005).
Then, “[w]ithin the bounds of due process, . . . the form that such notice is to take is left
to the discretion of the district court.” Weinman v. Fid. Capital Appreciation Fund (In re
Integra Realty Res., Inc.), 262 F.3d 1089, 1109 (10th Cir. 2001).
1. Nelson’s challenge to notice
Nelson argues that the settlement notice the district court sent to class members
did not fairly apprise them that, if they did not opt out of the settlement, class members
would be releasing any conversion claim they might have against Western Union
stemming from its retention of class members’ funds from failed wire transfers.
Reviewing this argument de novo, because it implicates due process, see DeJulius, 429
F.3d at 942-43, we reject it.
The notice sent to putative class members informed them generally that, if they did
14
Rule 23(c)(2)(B) requires the district court to give class members notice of the class
action, including the claims and issues involved and the fact that the judgment will bind
class members who do not opt out. In addition, Rule 23(e)(1) requires the district court to
give class members notice of a proposed class settlement “in a reasonable manner.”
21
not opt out, they would “give up [their] right to sue Western Union for the claims that this
settlement resolves” and they “won’t be able to start a lawsuit, continue with a lawsuit, or
be part of any other lawsuit against Western Union about the legal issues in this case ever
again.” (Nelson App. at 466, 469.) The notice further explained that this “lawsuit claims
that Western Union did not timely notify its customers that their Western Union
Transactions were not redeemed by the receivers to whom Western Union Transactions
were sent, and as a result caused harm to their customers.” (Id. at 462; see also id. at 461
(“This settlement involves a lawsuit over whether Western Union . . . timely notified its
customers of unredeemed Western Union Transactions in the United States using
Western Union’s money transfer services.”).) The notice, thus, adequately apprised
putative class members of the nature of the claims at issue. See Gooch v. Life Investors
Ins. Co. of Am., 672 F.3d 402, 423 (6th Cir. 2012) (stating that, in order to satisfy due
process, “[a]ll that the notice must do is fairly apprise prospective members of the class
of the terms of the proposed settlement so that class members may come to their own
conclusions about whether the settlement serves their interests”) (internal quotation
marks, alterations omitted); see also 7AA Wright, Miller & Kane, Federal Practice &
Procedure § 1787, pp. 511-12 (stating that Rule 23’s notice requirements are satisfied if
the notice gives Rule 23(b)(3) class members “sufficient information about the specific
lawsuit to allow a class member to assess whether to exercise the right either to appear or
to opt out”).15
15
Nelson’s argument to the contrary is that this language failed to tell class members that
the litigation involved, not only untimely notice, but also conversion; that is, Western
22
Moreover, the notice informed putative class members how to obtain more
information about the settlement, directing them to the class settlement website, where
they could get a copy of the Settlement Agreement, which explained that, if class
members did not opt out of the settlement, they would release Western Union from
liability for any claim that class members could have asserted based on the subject matter
of the class litigation and settlement. The notice also told class members that, if they had
“questions about the Released Claims and what they mean,” they could call and speak to
class counsel for free, or they could speak to their own attorney at the class member’s
expense. (Nelson App. at 470.) This notice satisfied due process by informing class
members of several ways they could obtain additional information about the claims that
they would be releasing if they joined the settlement. See Gooch, 672 F.3d at 424
(holding that notice “met the due-process baseline” by providing “potential class
members an address, phone number, and website with which to obtain more information
about the proposed settlement”) (internal quotation marks, alterations omitted).
2. Dorsey’s challenges to notice
Dorsey’s objections to the class settlement involve challenges to how notice was
Union’s improper use of these funds for its own gain. In support of his argument, Nelson
relies upon Twigg v. Sears, Roebuck & Co., 153 F.3d 1222 (11th Cir. 1998). But that
case is inapposite. There, the notice informed putative class members—described as
those who had bought automotive repair services from Sears during a specified time
period—that the class action involved “unnecessary and/or improper repairs” that
violated state and federal law. Id. at 1228 (emphasis omitted). The Eleventh Circuit held
that such notice was ineffective to inform class members that any claim for Sears billing
them for services never performed was also included in the settlement, especially because
the proposed class settlement did not provide any relief for such billing claims. Id. There
is no analogous problem with notice in this case.
23
sent to putative class members.16 The district court directed that notice be sent to putative
class members in several ways: 1) mailed to class members using updated addresses
obtained from Western Union or class counsel; 2) emailed to those class members whose
email address the settlement administrator had; and 3) published in several magazines. In
addition, as previously mentioned, the settlement administrator established a website
dedicated to the class settlement, from which class members could gain information and
have their questions answered. The class administrator estimated that, after executing
this notice plan, “[i]ndividual [n]otice reached 89.5% of the Settlement Class,” and notice
in some form “reached approximately 92.9% of all Western Union customers (and
therefore the Class), an estimated average of 1.4 times.”17 (Dorsey App. at 1213.)
Nevertheless, Dorsey argues that the manner in which notice was sent to class members
was inadequate, for the following reasons:
a. Mailed notice was inadequate
The district court ordered notices to “be mailed via first-class mail to the last-
16
As part of his arguments about notice, Dorsey also contends that class counsel
inadequately represented absent class members by not providing better notice to more
class members and by not responding to Dorsey’s objections to the manner in which
notice was sent to the class.
17
Dorsey complains that he was never able to review a copy of the “Notice Plan.” While
the settlement agreement required the named parties to provide the district court with a
“Notice Plan” at the time they asked the court preliminarily to certify the class and
approve the class settlement, it does not appear that the named parties in fact provided the
district court with a specific notice plan. After notice was sent and after the deadline by
which Dorsey had to file his objections, the named Plaintiffs reported to the district court
how the administrator actually sent notice to class members. The question we address
here is whether the notice actually sent to class members was adequate.
24
known mailing addresses of the putative Class members . . . for whom Western Union
has contact information in their own databases.” (Nelson App. at 409 ¶ 3.D.3.) Class
counsel reported to the court that notices were actually mailed “to all addresses
associated with transactions included in the Class definition.” (Dorsey App. at 1217
¶ 22; 1215 ¶ 18.) Dorsey contends that mailing notice only to addresses “associated
with” the failed wire transactions was inadequate; rather, Dorsey argues that the district
court’s order to mail notice to the last known address of class members required Western
Union to cross-check all of its databases to determine if it had a more recent address for
each class member than the address “associated with” the failed wire transfer.
The named Plaintiffs suggest, as a factual matter, that Western Union did cross-
check its databases before turning the addresses over to the class administrator. But even
assuming Western Union did not cross-check its databases, the class administrator
updated the addresses it received from Western Union using the post office’s change-of-
address database. Dorsey has not shown that updating the addresses in this manner
provided less notice than had Western Union cross-checked its databases. Cf. In re
Integra Realty Res., 354 F.3d at 1261 (upholding previous determination that mailed
notice was adequate, in light of appellants’ failure to show that “another reasonable
method of supplementing the . . . mailing list would have significantly increased the
number of notices actually received”). Ultimately, Rule 23(c)(2) mandates that “the court
must direct to class members the best notice that is practicable under the circumstances,
including individual notice to all members who can be identified through reasonable
effort.” See Eisen, 417 U.S. at 176. We are satisfied that the notice mailed to class
25
members in this manner did not violate Rule 23 nor deprive the absent class of due
process.
b. Notice may not have been sent to class members whose funds
held by Western Union were “zeroed out” by the administrative
fees Western Union charged
Dorsey next speculates, without specifics, that notice may not have been sent to
putative class members whose administrative fees exceeded the amount of money
Western Union was holding for them. But the district court preliminarily certified the
class to include
[a]ll persons (a) who initiated any Western Union Transaction in the United
States on or after January 1, 2001 and on or before the date of the
Preliminary Approval [January 3, 2013], whose Western Union Transaction
was not redeemed within 60 calendar days; and (b) who . . . (i) have not
claimed their money transfer funds (nor had that money claimed on their
behalf) from Western Union . . . .
(Dorsey App. at 144 ¶ 3.) The court further directed that notice be sent to all such class
members “who can be identified with reasonable effort.” (Id. at 147 ¶ 9.b.) That order
included the “zeroed out” class members. Further, class counsel presented evidence that
notice in this regard was sent out as the district court ordered. And, in finally certifying
the class and approving the settlement, the district court found “that notice has been given
to the Class in the manner approved by the Court in its Preliminary Approval.” (Id. at
1563 ¶ 7.) On that basis, it appears that notice was sent to the “zeroed out” class
members. Dorsey offers no evidence to the contrary.
c. Defective notice chilled class members’ objections to the
settlement
The district court ordered that the notice to class members state, in pertinent part,
26
that an “objecting Class member must . . . agree to sit for deposition, within the County in
which he, she, or it resides, within 14 calendar days after serving such objection.”
(Nelson App. at 422 ¶ 8.a, 456 (emphasis added).) But the notice actually sent to
individual class members told them, instead, that objectors “must be willing to agree to
sit for a deposition, within the county or state in which you reside.” (Id. at 468 (emphasis
added).) Dorsey contends that this error in the notice kept class members from large
states from objecting to the settlement because those class members would have been
concerned that they might have to sit for a deposition at a greater distance (and expense)
from their home.18
Dorsey brought this error in the mailed notice to class counsel’s attention, after
which the named Plaintiffs and Western Union agreed that an objector’s deposition could
be taken “anywhere within the state in which the putative Class member resides, at the
objector’s option” (Dorsey App. at 172-73 (emphasis added)). Because the notice mailed
to individual class members did not tell them this, however, Western Union and the
named Plaintiffs further agreed to provide this information on the settlement website
under the heading “Frequently Asked Questions” and to inform all call center agents to
clarify this information for putative class members who called with questions. Dorsey
claims, however, that class counsel dawdled, failing to post this correction on the website
18
Neither Rule 23(c)(2) nor 23(e) expressly requires notice to class members regarding
how and when they can object to a class settlement. Nevertheless, failure to tell class
members of their right to object could arguably deprive them of the due process
requirements of notice and an opportunity to be heard. See Rutter & Wilbanks Corp. v.
Shell Oil Co., 314 F.3d 1180, 1187 (10th Cir. 2002) (noting, in class action, that “[t]he
fundamental requirement of due process is the opportunity to be heard at a meaningful
time and in a meaningful manner”) (internal quotation marks omitted).
27
in a timely manner and never correcting the Spanish-language version of the website.
Even so, we cannot conclude that this notice problem materially affected class members’
exercise of their right to file objections. We are satisfied that the notices mailed to class
members “were sufficient to flush out any objections that might arise to the fairness of
the settlement.” DeJulius, 429 F.3d at 946. And there is no evidence suggesting that
anyone who wanted to object was chilled from doing so. Dorsey’s argument, therefore,
is too speculative.
d. Email notice was inadequate
Dorsey received mailed notice of the class action and proposed settlement, but he
claims that he also should have received this notice by email because he gave Western
Union his email address at the time he sent his failed wire transfer. Yet Dorsey claims
that he did not receive any email notice of the class action and settlement. This, Dorsey
suggests, means there was something wrong with the email notice that the class
administrator sent to the entire class. But the fact that one class member—Dorsey—did
not receive one version of the notice that the plan was designed to give does not, by itself,
establish that the entire notice plan was inadequate. See DeJulius, 429 F.3d at 946-47.
And even if there were deficiencies in sending notice via emails, those emails only
supplemented the mailed notice. And the mailed notice was sufficient to provide “the
best notice that is practicable under the circumstances,” Fed. R. Civ. P. 23(b)(2)(B). Cf.
In re Integra Res., 262 F.3d at 1109 (holding in that case that mailing notice to “all class
members whose names were then known or could be identified through reasonable
28
effort” satisfied due process).
B. District court’s exercise of its independent judgment
Finally, both Nelson and Dorsey argue that the district court failed to exercise its
independent judgment when it certified the class and approved the settlement. In support
of their argument, Nelson and Dorsey first point to the fact that the district court, in
preliminarily and finally certifying the class and approving the settlement, adopted
verbatim orders drafted by the named Plaintiffs and Western Union. This practice is not
favored; it can result in an overly- or underly-inclusive ruling and can create the
perception of a lack of judicial independence which harms the judiciary. Nonetheless,
the fact that the district court adopted the order drafted by the parties, alone, does not
establish that the district court failed to exercise its judgment independently. See
Anderson v. Bessemer City, 470 U.S. 564, 572 (1985). When, as here, the district court
adopts verbatim a proposed order resolving matters left to the court’s discretion, this
court must satisfy itself that the district judge actually “exercised his discretion” by
considering the factors relevant to “that exercise.” N. Eng. Health Care Employees
Pension Fund, 512 F.3d at 1290. We are satisfied that the district court, in certifying the
class and approving the class settlement, considered the relevant factors and actually
exercised its discretion independently. See id.
Nelson and Dorsey next contend that the district court failed to exercise its
independent judgment in denying their objections to the class settlement. The order
approving the settlement, which was proposed and drafted by the named parties, stated
only that “[t]he Court has considered the objections to the Settlement and hereby
29
overrules them.” (Dorsey App. at 1594 ¶ 10.) But at the fairness hearing, after hearing
argument from the named Plaintiffs, Western Union and Objector Nelson, the district
court briefly addressed and rejected Nelson’s objections. That is sufficient for this court
to conclude that the district court independently exercised its judgment in denying
Nelson’s objections.19
Unlike Nelson, whose attorney appeared at the fairness hearing, Dorsey, acting pro
se, submitted only written objections. The district court, at the fairness hearing,
acknowledged receiving Dorsey’s written objections, “overruled” written objections
raised by several other objectors “for the reasons stated in the plaintiffs’ memoranda,”
and then overruled Dorsey’s objections without further comment. (Dorsey App. at 689,
706-07, 709.) This practice is also not favored. Nevertheless, we upheld a similar
disposition of objections to a class settlement in In re Integra Realty Resources, Inc.,
noting that, “while more extensive explanation by the district court may have been
helpful to our review, we will not overturn the district court’s decision on the basis of a
‘merely formal’ deficiency as long as the decision finds support in the record.” 354 F.3d
at 1268. In Integra Realty, the district court had before it the settling parties’ memoranda
supporting the settlement and the written objections to the settlement, and the court heard
argument before rejecting the objections; “[t]he record thus indicates that the district
19
The district court, in rejecting Nelson’s objections, mistakenly stated that it had
previously dismissed the class’s conversion claims. That does not prevent us from
concluding that the district court independently exercised its discretion in denying
Nelson’s objection. Nor can we conclude that that mistake adversely affected the district
court’s certification of the class and approval of the class settlement.
30
court was aware of all the issues that appellants now argue should have been considered
when determining the settlement’s fairness.” Id. at 1268-69. For similar reasons, we
conclude that the district court exercised its independent judgment in this case when it
denied Dorsey’s written objections.20
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s decisions to certify the
class and approve the class settlement.
20
In reaching this conclusion, we distinguish New England Health Care Employees
Pension Fund v. Woodruff, 512 F.3d 1283 (10th Cir. 2008). In that case, the district
court overruled objections to a class settlement “based on the reasons stated, arguments
advanced, and authorities cited by [the defendant] in its reply.” Id. at 1290 (internal
quotation marks, alteration omitted). In that case, this court concluded that the district
court’s ruling was “insufficient,” holding that, “[w]hen it comes to page after page of
complex legal argument, we need to know what path the district court followed.” Id. In
that case, the defendant’s reply to which the district court referred was twenty-one pages
long with 139 pages of exhibits and was only “argument . . . not intended to represent any
findings or conclusions for an appellate court to review.” Id. Here, on the other hand,
the named Plaintiffs’ memoranda opposing all of the objections to the settlement
dedicated five discrete pages to Dorsey’s objections, so we can much more easily
determine the reasons the district court rejected Dorsey’s objections.
31