* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 25, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40735

Summary Calendar

MICHAEL FEDER, Individually and On Behalf of all others similarly

situated; SECURITIES, Class Plaintiffs

Plaintiffs-Appellees

v.

ELECTRONIC DATA SYSTEMS CORPORATION

Defendant-Appellee

v.

BERNARD STANLEY URBANIK

Appellant

Appeal from the United States District Court

For the Eastern District of Texas

6:03-MD-1512

Before WIENER, GARZA, and BENAVIDES, Circuit Judges

PER CURIAM:*

Bernard Urbanik (“Urbanik”),the appellant, challenges the district court’s

decision to disregard his objections to a settlement reached in a securities class

action between the plaintiff class and Electronic Data Systems Corporation
No. 06-40735

1 Any class member may object to a proposed settlement, voluntary dismissal, or

compromise that requires court approval under Rule 23(e)(1)(A). FED. R. CIV. P.

2

(“EDS”). Urbanik argues on appeal that the settlement is not “fair, reasonable,

and adequate” as required by FED. R. CIV. P. 23(e)(1)(C). Because Urbanik did

not prove his membership in the class, he lacks standing to object. We dismiss

without reaching the merits of his claim. See Steel Co. v. Citizens for Better

Env’t, 523 U.S. 83, 93-94 (1998) (holding that federal courts should not assume

jurisdiction over a claim and then reject it on the merits, but should decide

jurisdiction first).

After briefing and a hearing on the matter, the district court granted

preliminary approval of a $137.5 million settlement between the plaintiff class

and EDS. Based on this preliminary approval, the claims administrator mailed

proof of claim and release forms to 594,000 potential class members giving notice

of the settlement. These forms, approved by the district court as providing

requisite notice, stated that class members were to submit genuine and

sufficient documentation for all of their transactions in each eligible security

during the class period, and that any objection to the settlement must include

the number and type of EDS securities purchased, acquired, and sold during the

class period. Urbanik submitted a written objection to the settlement which

included, among his objections, a statement that he purchased or otherwise

acquired securities of EDS during the class period. Urbanik included no further

information regarding EDS securities. The district court then held its fairness

hearing to determine whether to approve the settlement. During the hearing,

Urbanik’s counsel stated that his client bought and sold shares of EDS stock in

the requisite time frame. Urbanik produced no other proof of his class

membership

The text of FED. R. CIV. P. 23(e) is clear in its grant to class members of

the ability to object to a proposed settlement.1 But only class members have an
No. 06-40735

23(e)(4)(A).

The district court certified a class, with certification affirmed by this court, to include:

All persons and entities who purchased or otherwise acquired the securities of

Electronic Data Systems Click for Enhanced Coverage Linking SearchesCorp.

("EDS") between February 7, 2001 through and including September 18, 2002

(the "Class Period"), and who were damaged thereby. Excluded from the Class

are defendants, members ofthe families of each the Individual Defendants, any

parent, subsidiary, affiliated, partner, officer, executive, director of any

defendant, any entity in which any such excluded person has a controlling

interest, and the legal representatives, heirs, successors, andassigns of any such

excluded person or entity. In re Elec. Data Sys. Corp. Securities Litig., 226

F.R.D. 559, 572 (E.D. Tex. 2005)

3

interest in the settlement funds, and therefore only class members have

standing to objectto a settlement. Anyone else lacks the requisite proof of injury

necessary to establish the “irreducible minimum” of standing. See Patterson v.

Texas, 308 F.3d 448, 451 (5th Cir. 2002) (holding that the state of Texas lacked

standing to object to class action settlement because it had not suffered an

injury); Gould v. Alleco, Inc., 883 F.2d 281, 284 (4th Cir. 1989) (noting that “[t]he

plain language of Rule 23(e) clearly contemplates allowing only class members

to object to settlement proposals”); 4 Newberg on Class Actions § 11:55 (4th Ed.)

(“[A]s a general rule, only class members have standing to object to a proposed

settlement.”). The issue in this case is whether Urbanik has provided enough

evidence to show that he is a class member with standing to object.

Urbanik, as the party seeking to establish jurisdiction, bears the burden

of proving standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

The elements of standing must be supported as any other matter on which the

plaintiff bears the burden of proof at the corresponding stage of litigation. Id.

The necessary elements of Urbanik’s standing to object could be established by

proof of his class membership. See Shaw v. Toshiba Am. Info. Sys., 91 F.Supp.2d

942, 974-75 (E.D. Tex. 2000) (noting that objector who failed to substantiate his
No. 06-40735

4

membership in the class did not have “proper standing” to object to class action

settlement).

Aside from Urbanik’s unsupported claim of ownership in his objection

letter, and the statements made by his attorney at the settlement hearing,

Urbanik produced no evidence substantiating his membership in the class. In

this case, where the proof of claims period has closed and the settlement has

been finally approved by the district court, the burden of proving class

membership cannot be satisfied by the appellant’s unsupported assertions of

class membership. Urbanik did not submit a proof of claim form. Nor did he

provide the documentary evidence required by the claim form to support his

contention that he bought or sold EDS stocks during the class period. His

objection did not include the required information as to the number or type of

EDS securities that Urbanik alleges to have dealtin during the period. Allowing

someone to object to settlement in a class action based on this sort of weak,

unsubstantiated evidence would inject a great deal of unjustified uncertainty

into the settlement process.

We do not, in this opinion, venture to set a bar for the quantum of proof

necessary to establish class membership for the purpose of objecting to a

settlement. Rather, we simply note that the right to object to settlement in a

securities class action must rest on something more than the sort of bare

assertions of stock-ownership made by Urbanik. Because Urbanik lacked

standing to object to the settlement, he cannot now appeal the district court’s

ruling on his objection.

Standing being jurisdictional, we DISMISS.