[ PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 22

- 13051

____________________

IN RE : BLUE CROSS BLUE SHIELD ANTITRUST LITIGATION MDL 2406

_____________________________________________ 2:13

- cv

- 20000

- RDP GALACTIC FUNK TOURING, INC., AMERICAN ELECTRIC MOTOR SERVICES, INC., CB ROOFING, LLC, PEARCE, BEVILL, LEESBURG, MOORE, P.C., PETTUS PLUMBING & PIPING, INC., et al.,
Plaintiffs

- Appellees, TOPOGRAPHIC, INC., EMPLOYEE SERVICES INC., HOME DEPOT U.S.A., INC., JENNIFER COCHRAN, USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 1 of 452 Opinion of the Court 22

- 13051

AARON CRAKER, DAVID G. BEHENNA,
Interested Parties

- Appellants,

versus ANTHEM, INC., EXCELLUS HEALTH PLAN, INC., d.b.a. Excellus BlueCrossBlueShield, PREMERA BLUE CROSS, BLUE CROSSBLUE SHIELD OF ARIZONA, HEALTH CARE SERVICE CORPORATION, et al.,

Defendants

- Appellees.

____________________ Appeal s from the United States District Court f or the Northern District of Alabama D.C. Docket No. 2:13

- cv

- 20000

- RDP

____________________ Before W ILLIAM P RYOR , Chief Judge, A BUDU , Circuit Judge, and
B ARBER , * District Judge.

* Honorable Thomas P. Barber , United States District Judge for the Middle District of Florida , sitting by designation. USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 2 of 4522

- 13051 Opinion of the Court 3

W ILLIAM P RYOR , Chief Judge : This appeal requires us to determine whether the district court abused its discretion in approving a settlement agreement for a multi

- district antitrust class action against the Blue Cross Blue Shield Association and its member plans. One objector
, Home Depot U.S.A., Inc. , contends that the settlement violates public policy by releas ing prospective antitrust claims and violates due process and class

- action rules by allowing the same counsel and class representatives to represent both an i njunctive c lass and a d amages

c lass

. Another objector, Topographic
, Inc., argues that the district

court misapplied the law and clearly err ed in its factual findings in allocat ing the settle ment fund between different groups of claimants. A third objector, David Behenna
, contends that the district court erred in determin ing that the class counsels’ fee s were reasonable. And the final objectors, Jennifer Cochran and Aaron Craker
, argue that th e district court erred in allowing the settlement to treat the unclaimed settlement funds of employers differently than the unclaimed funds of employees and in approving a plan of distribution that fails to address the employers’ disbursement obligations under the Employe e Retirement Income Security Act of 1974 ( ERISA)

. Because the district court did not abuse its discretion, we affirm

. I. BACKGROUND
The Blue Cross Blue Shield Association is a national health insurance company that owns and lic enses its federal trademarks to local member plans and affiliated entities. The A ssociation, its USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 3 of 454 Opinion of the Court 22

- 13051 member plans, and the affiliated entities together make up what is known colloquially as Blue Cross

. Over a decade ago, subscribers who bought health insurance filed a class action against Blue Cross, alleging that it violated the Sherman Antitrust Act
, 15 U.S.C. §§ 1

– 3, by restricting the member plans’ ability to compete

. The initial complaint sought to certify a class action and was the first of many filed across the country. See Complaint, Cerven v. Blue Cross & Blue Shield of North Carolina , No

. 5 :12

- cv

- 17 (W.D.N.C. Feb. 7 , 2012). Healthcare providers also filed antitrust claims against Blue Cross

. T he actions against Blue Cross were consolidated in multi

district litigation in the Northern District of Alabama and split into two tracks: one for subscribers and another for providers. This appeal concerns the subscriber

- track litigation. In the ir consolidated complaint, t he subscribers alleged that Blue Cross allocated geographic territories
, limited member plans’ competition by mandating a minimum percentage of business under the Blue Cross brand for each member doing business inside and outside their territor ies , restricted the right of member plan s to be sold to companies outside the Association
, and agreed to other ancillary restraints on competition. The subscribers sought money damages, treble damages , restitution, and injunctive relief.

In 2018 , the district court granted partial summary judgment for the subscribers
, rul ing that, under s ection 1 of the Sherman Act
, a per se standard applied to Blue Cross’s alleged “ aggregation of competitive restraints. ” In re Blue Cross Blue Shield Antitrust Litig.
, USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 4 of 4522

- 13051 Opinion of the Court 5 308 F. Supp. 3d 1241, 1267 (N.D. Ala. 2018). This ruling treated the challenged aggregated restraints as “necessarily illegal

. ” Id. at 1259 ( quot ing Leegin Creative Leather Prods., Inc. v. PSKS, Inc. , 551 U.S. 877, 88 6 (2007)). The district court did not rule on the standard that would govern individual restraints if considered separately. Id. at 1258. Amid the ongoing litigation , the subscriber

- track plaintiffs and Blue Cross began settlement discussions. Starting in 2017, a
court

- appointed special master assisted with the negotiations and h e ld dozens of meetings and conference calls. The parties reached a settlement agreement after years of negotiations. The settlement agreement divided the subscriber

- track plaintiffs into two groups: a damages class under Federal Rule of Civil Procedure 23(b)(3) and a n injunctive relief class under R ule 23(b)(2). The d amages c lass includes “All Individual Members (excluding dependents and beneficiaries), Insured Groups (including employees, but excluding non

- employee Members), and Self

Funded Accounts (including employees, but excluding non

- employee M embers) that purchased, were covered by, or were enrolled in a Blue

- Branded Commercial Health Benefit Product.” The i njunctive c lass includes “all Individual Members, Insured Groups, Self

- Funded Accounts, and Members that purchased, were covered by, or wer e enrolled in a Blue

- Branded Commercial Health Benefit Product sold, underwritten, insured, administered, or issued byany Settling Individual Blue Plan during the Settlement Class Period.” The two classes almost complete ly overlap in membership

. USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 5 of 456 Opinion of the Court 22

- 13051

The main difference is that the i njunctive c lass includes beneficiaries and dependents of employees, and the d amages c lass does not.
The d amages c lass and the i njunctive c lass include both “fully insured accounts” and “self

- funded accounts .” Fully insured

accounts buy health insurance from Blue Cross , which as the insurer pay s enrollees’ medical costs, bear s the risk that enrollees’ claims will exceed premiums, control s the benefits structure, make s coverage decisions, and provide s administrative services. The settlement class period for the f ully i nsured c laimants is February 7, 2008, through October 16, 2020.
Self

- funded accounts do not buy health insurance. T hey instead purchase administrative services and unbundled products lik e vision, dental, and stop

- loss insurance from Blue Cross. Self

- funded accounts self

- insure for healthcare costs, so the employer , not Blue Cross, pays for its employees’ healthcare costs at Blue Cross rates

. The self

- funded account employees might contrib ute t o their premiums or to the cost of the product s purchased by their employer. The parties and the district court refer to the s elf

- f

unded c laimants as “self

- funded,” “self

- insured,” and “ASOs” interchangeably. In July 2019, s elf

- f

unded counsel and a se lf

- fu nded c laimants ’ class representative were appointed to represent separately the s elf

- f

unded

c laimants during the settlement negotiations. The settlement class period for the s elf

- f

unded c laimants is September 1, 2015, through October 16, 2020.
The parties first negotiated injunctive relief t hat requires Blue Cross to make structural reforms to increase competition USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 6 of 4522

- 13051 Opinion of the Court 7 between its members. The structural changes include eliminating the “National Best Efforts Requirement,” which restricted the member pla ns’ ability to market under other brands; allowing member plans to submit competing bids that were previously prohibited; restricting the application of the “Local Best Efforts R equirement ,” which required each member plan to generate a certain percentage of its revenue within its geographic service area using the Blue Cross brand; restricting the conditions that Blue Cross may place on acquisitions of member plans; eliminating several restrictions that Blue Cross had placed on contracts between self

funded accounts and healthcare providers; and restricting Blue Cross’s ability to include “Most Favored Nation

- Differential” clauses in contracts with providers. Other features of Blue Cross’sstructure, like the Exclusive Service Area policy, are allowed to rem ain in place post

- settlement

. The settlement agreement also establishes a monitoring committee to oversee compliance with the structural changes dictated by the agreement. The monitoringcommittee is charged with mediating certain disputes and reviewing ce rtain rule changes that Blue Cross may make during the five

year monitoring period following approval of the settlement. The parties next negotiated relief for the d amages c lass that

creat es a common fund of $2.67 billion to pay damages, provide for notice and administration, and pay attorney s’ fees and costs. The subscribers engaged Kenneth Feinberg, a respected mediator in the field of settlement allocations, to help determine an appropriat e allocation of the settlement fund between the f ully i nsured c laimants and the s elf

- f

unded c laimants. The settlement provides a plan of USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 7 of 458 Opinion of the Court 22

- 13051

distribution that allocates 93.5 percent of the net settlement fund to the f ully i nsured c laimants and 6.5 percent to t he s elf

- f

unded

c laimants. This allocation is based on several factors
, including the relative volume of payments by the fu lly i nsured c laimants and the

se lf

- f

unded c laimants, the strength of their respective claims, the shorter s elf

- f

unded damages period, and the premiums paid for fully insured coverage in contrast with the administrative fees charged for self

- funded accounts.
T he plan of distribution provides a method for calculating damages for each kind of claimant. For f ully i nsured c laimants, t he actual premiums paid by individual members and insured groups will be used to determine the pro

- rata share of the f ully i nsured

c laimant s ’ net settlement fund for each member and group. I ndividuals collect all their pro

- rata share. The damages for fully insured groups, which include employers and employees, require further calculations. For fully insured groups in which the employer makes a claim and no employees do so, the employer will receive that group’s entire pro

- rata distribution. If any employee makes a claim, the group’s pro

- rata share must be allocated between the employer and any claiming employees. The settlement agreement does not relieve employers of any ERISA obligations, including any fiduciary obligation to distribute claims proc eeds to their employees

. Because both fully insured employers and employees can bear a portion of the burden of the premiums paid, the plan of distribution includes a default option for apportioning premiums USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 8 of 4522

- 13051 Opinion of the Court 9 between fully insured employers and employees. E mployees maydecline to consent to the default option if they paid a higher contribution percentage than the default option and can provide proof supporting that higher percentage to the settlement administrator for approval. If an employee files a claim b ut his employer does not, the employee will receive credit for only his portion of the premium. Any money not claimed by employees is reallocated back to the employer

. Any money not claimed by an employer is reallocated back to the f ully i nsured c laimants’ net settlement fund.

For s elf

- f

unded c laimants , disbursements are allocated between employers and employee s based on the estimated share of the administrative fees paid by each . The plan of distribution also creates a default option for self

- funded accoun ts from which employees may opt out b y present ing proof that they paid more money than the default option provides . The settlement agreement does not relieve self

- funded employers from any ERISA obligations they have when distributing settlement funds to e mployees. In addition to paying damages, t he settlement fund pay s attorneys ’ fees and costs. The parties agreed that the subscribers’counsel could seek a combined fee and expense award up to 25 percent of the $2.67 billion settlement fund. Counsel filed a petition seeking that full amount, with the attorneys ’ fee s accounting for 23.47 percent and incurred expenses accounting for the remainder

. This request was supported by a declaration of counsel, a USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 9 of 4510 Opinion of the Court 22

- 13051 declaration by the special master , and two expert reports that attest ed that the requested award was reasonable. In exchange for the relief described above, the subscribers
, on the effective date
, release all claims “based upon, arising from,or relating in any way to” (i) the “factual predicates of the Subscriber Actions” as described in the relevant subscriber

- track complaints from t he beginning of time through the effective date; (ii) “any issue raised in any of the Subscriber Actions by pleading or motion ; ” or (iii) “mechanisms, rules, or regulations” adopted by Blue Cross that are “within the scope” of the settlement’s structural

r elief provisions and “approved through the Monitoring Committee Process during the Monitoring Period.”

Post

- settlement
, s ubscribers may still sue Blue Cross, depending on the claim and whether the subscriber opted out of the agreement. Subscribers retain their right to pursue claims relating to coverage, benefits, and administration of claims that are not “based in whole or in part o n the factual predicates of the Subscriber Actions or any other component” of the released claims. Those opting out of the settlement may bring claims for individual injunctive or declarat ory relief, except that i njunctive cl ass opt

- outs may not seek indivisible injunctive relief. A self

- funded claimant who opts out retains the rig ht to seek some individual injunctive or declaratory relief as defined by the settlement agreement.
After t he subscribers moved for final approval of the settlement agreement , t he district court conducted a two

- day fairness hearing and heard arguments in s upport of the agreement and USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 10 of 4522

- 13051 Opinion of the Court 11
from objectors. Home Depot, a s elf

- f

unded c laimant and an opt

out from the d amages c lass, objected to the scope of the release on the ground that it permit s illegal conduct and violates public policy

. Topographic, a s elf

- f

unded c laimant, objected to the allocation percentages between the f ully i nsured c laimants and the s elf

- f

unded

c laimants as well as the s elf

- f

unded c laimants’ shorter class period of five years.
T he district court hel d a nother heari ng to consider the Topographic objection to the allocation and allow ed expert testimony and cross

- examination. Before that hearing, Topographic sought to discover communications between the f ully i nsured

c laimants’ counsel and the s elf

- f

unded c laimants’ economic expert witness, Dr. Joseph R. Mason. The district court denied the discovery request based on the common

- interest privilege. Individual class members also raised objections. Behenna, a n individual class member, objected to the attorneys ’ fees request and argued that the settlement required the district court to use the lodestar methodology to determine the reasonableness of the attorneys ’ fees because the subscribers ’ claims arose under a fee

- shifting statute and because the cas e was not a common fund case. Cochran and Craker, employees of f ully i nsured employers, objected to the plan of distribution allocating unclaimed employee funds to their employer

. Finally, the Department of Labor, a non party, filed a statement of interest in response to the proposed settlement agreement. The Department did not object to the settlement, but i t expressed USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 11 of 4512 Opinion of the Court 22

- 13051 concerns that the settlement agreement might affect employers’ and plan fiduciaries’ obligations under ERISA. Specifically, the Department was concerned that the settlement did not account for ERISA at all.
The district court overruled all objections
, reje cted the concern raised by the Department of Labor
, and approv ed the settlement agreement

. In a separate order , it approv ed the subscriber counsel’s attorneys ’ fees and expenses request . The district court also determined that there was “no just reason for delay in the entry of [the] Final Order and Judgment” and severed the subscriber action from unrelated, still

- pending claims in the provider track litigation . Th e district court certified its order for appeal under Federal Rule of Civil Procedure 54(b). See Jenkins v. Prime Ins. , 32 F.4th 1343, 1345 (11th Cir. 2022) (permitting appealable judgment as to fewer than all claims)

. II. STANDARD OF REVIEW We review the approval of a class action settlemen t agreement for abuse of discretion. Day v. Persels & Assocs. , 729 F.3d 1309
,1316 (11th Cir. 2013). Because “determining the fairness of the settlement is left to the sound discretion of the trial court, we will not overturn its decision absent a clear sh owing of abuse of that discretion.” In re Equifax Inc. Customer Data Sec. Breach Litig. , 999 F.3d 1247, 1273 (11th Cir. 2021) ( alteration adopted) ( citations and internal quotation mark s omitted). “A district court abuses its discretion if it applies an in correct legal standard, follows improper procedures in making the determination, or makes findings of fact that USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 12 of 4522

- 13051 Opinion of the Court 13 are clearly erroneous.” Chi. Trib. Co. v. Bridgestone/Firestone, Inc.
, 263 F.3d 1304, 1309 (11th Cir. 2001).
III. DISCUSSION We divide our discussion in to four parts. First, we address the issues raised by Home Depot. Second, we address the issues raised by Topographic. Third, we address Behenna’s appeal. And last, we address the issues raised by Cochran and Craker.
A. Home Depot Home Depot mak es three arguments on appeal

. It first argues that release of prospective claims violat es public policy, perpetuates clearly illegal conduct, and exceeds the identical

- factual

predicate doctrine. It next argues that allowing the injunctive class and the da mages class to be represented by the same counsel and class representatives violat es Federal Rule of Civil Procedure 23(a) and the Due Process Clause of the Fifth Amendment

. And i t finally contend s that intraclass conflicts within the i njunctive c lass violate Rule 23(a). None of these arguments persuade us that the district court abused its discretion.

1. The District Court Did Not Err by Approving the Release of the Injunctive Class Members’ Claims

. We reject Home Depot ’s arguments that the district cour t abused its discretion when it approved the release provision of the settlement agreement. First, no public policy prohibit s prospective releases in antitrust c ases . Second, the release does not perpetuate clearly illegal conduct. Third, the release provi sion permissibly USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 13 of 4514 Opinion of the Court 22

- 13051 releases only claims based on an identical factual predicate to the underlying litigation.

a. The Release Does N ot Violate Public Policy

.Home Depot argues that the release provision violates public policy because the antitrust laws depend on private enforcement, and prospective releases undermine that regime. But r eleases of future claims are an important par t of many settlement agreements. See, e.g. , Adams v. S

. Farm Bureau Life Ins. , 493 F.3d 1276, 1286 (11th. Cir. 2007) ; In re Lit erary Works in Elec. Databases Copyright Litig. , 654 F.3d 242, 247

– 48 (2d Cir. 2011); Oswald v. McGarr , 620 F.2d 1190, 1198 (7th Cir. 1980). And r eleases are commonly approved and enforced in class action s. See Fager v. Century Li nk Comm c ’ns., LLC , 854 F.3d 1167, 1176 (10th Cir. 2016) (“[I] nherent in the nature of a class

- action settlement is the release of the claims of every class member (except those who opt out) .”). The antitrust context is no different

. We have approved prospective releases of antitrust claims. For example, in In re Managed Care
, 756 F.3d 1222, 1235

– 37 (11th Cir. 2014) , we affirmed the approval of a settlement agreement that included a release of future antitrust claims arising from the same conduct

. We have also revers ed a refusal to enforce a “broad” release that extended to “ any and all causes of action

. . . of whatever kind, source, or character that are related to matters addressed in the class action, including antitrust and other stat utory and common law claims .” Thomas v. Blue Cross and Blue Shield Ass ’n , 594 F.3d 814, 822 (11th Cir. 2010) (internal quotation marks omitted). And USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 14 of 4522

- 13051 Opinion of the Court 15 our predecessor court upheld the approval of an antitrust settlement that included a release of future claims. In re Chicken Antitrust Litig. Am. Poultry
, 669 F.2d 228, 234 (5th Cir. Unit B 1982). It mention ed the importance of “total peace” for defendants in any settlement an d stated that the release of future claims was important for the antitrust settlement at issue specifically. Id. at 23 8

. Our sister circuits have approved and enforced prospective releases in antitrust c ases too. T he Second Circuit has approved broad rele ases in antitrust settlement agreements and explainedthat “[b]road class action settlements are common, since defendants and their cohorts would otherwise face nearly limitless liability from related lawsuits in jurisdictions throughout the country.” Wal

- mart Stores, Inc. v. Visa U.S

. A., Inc. , 396 F.3d 96, 106 (2d Cir. 2005). The Seventh Circuit has also approved releases in antitrust settlements when the release involved claims based on conduct central to the underlying litigation , even if they were o ngoing after the effective date of the settlement agreement

. See, e.g. , MCM Partners, Inc. v. Andrews

- Bartlett & Assocs. , 161 F.3d 443, 448

– 49 (7th Cir. 1998). Public policy does not categorically prohibit releases of future antitrust claims. Home Depot ci tes authorities that rejected release s for overbreadth , but those authorities are inapposite

. F or example, in one decision
, the Supreme Court rejected a release in an international commercial arbitrat ion agreement that completely barred the application of the Sherman Act. Mitsubishi Motors Corp. v. Soler Chrysler

- Plymouth, Inc.
, 473 U.S. 614 , 616 (1985)

. The Court said that if USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 15 of 4516 Opinion of the Court 22

- 13051

the choice

- of

- law clause in the arbitration agreement worked in tandem with the choice

- of

- forum clause to require all antitrust claims to be decided under Swiss law instead of the Sherman Act,it would constitute “a prospective waiver of a party’s right to pursue statutory remedies for antitrust violations ” that would be

“ against public policy.” Id. at 637 n.19. The Court was c oncern ed about the complete absence of a statutory remedy for any antitrust violation : it was possible that
, under the arbitration agreement
, the Sherman Act would never apply, no matter what the antitrust claims were or when they accrued. The Court did not hold that every prospective release of antitrust claims would violate public policy ; it stated only that categorically barr ing parties from seeking relief under the Sherman Act regardless of the underlying claim

w ould violat e public policy. Similar ly, i n Redel’s Inc. v. General Elec. Co. , our predecessor court held that a general release in a franchise agreement could not bar antitrust claims arising after the effective date of the agreement because of public policy concerns. 498 F.2d
95 , 99

– 100 (5th Cir. 1974). T he release in Redel’s was broad

— it released “all claims, demands, contracts
, and liabilities

. ” Id. at 98 (internal quotation marks omitted)

. And t he court held that if it were to bar claims arising from later antitrust violations w ithout any factual or temporal limitation
, the release would violate public policy. Id. at 99. The release in this appeal is limited and affects the rights of only some private individuals to sue Blue Cross, and i t does not affect public enforcement of the antitrust laws

. Private enforcement is only one mechanism by which federal antitrust laws may USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 16 of 4522

- 13051 Opinion of the Court 17 be vindicated. The government may also enforce the antitrust laws against companies like Blue Cross

. 15 U.S.C. §§ 15a, 15c, 15f. And th e settlement agreement does not bar the Department of Justice

or state attorneys general from pursuing civil claims or criminal charges against Blue Cross. Home Depot’s concern that the release will undermine the enforcement of the antitrust laws is overstated.
b

. The Release Does N ot Perpetuate Clearly Illegal Conduct. Home Depot argue s that the settlement should not have been approved b ecause it perpetuates “clearly illegal conduct” by allowing the continuation of the Exclusive Service Area policy . I n the antitrust context, a settlement agreement may perpetuate conduct when its illegality is un certain. Bennett v. Behring Corp. , 737 F.2d 982, 987 (11th Cir. 1984). The classification of the conduct is crucial.
Under s ection 1 of the Sherman Act, two standards govern the review of challenged conduct: the per se rule and the rule of

reason. F ed. Trade Comm’n v. Ind. Fed’n of Dentists , 476 U.S. 447, 457

– 58 (1986) . C onduct governed by the per se rule “unequivocally” violates the Sherman Act. Consultants & Designers, Inc. v. Butler Serv. Grp

. , Inc. , 720 F.2d 1553, 1562 (11th Cir. 1983)

. P er se violation s clearly restr ain comp etition. Id. at 15 61

. The “rule of reason,” in contrast, governs c onduct that does not per se violate the Act. Ind. Fed’n of Dentists , 476 U.S. at 457

– 58

. “ Under the rule of reason, the test of legality is whether the restraint imposed is such as merely

re gulates and perhaps thereby promotes competition or whether it USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 17 of 4518 Opinion of the Court 22

- 13051 is such as may suppress or even destroy competition.” Levine v. Cent. Fla. Med

. Affiliates, Inc. , 72 F.3d 1538, 1551 (11th Cir. 1996) ( quoting Chi

. Bd. o f Trade v. United States , 246 U.S. 231, 238 (1918) (internal quotation marks omitted) ). Conduct subject to the rule of reason does not necessarily violate the Sherman Act: a plaintiff

must prove its anticompetitive effect. Id. S o long as the conduct perpetuated under a settlement agreement doe s not per se violat eantitrust law, the settlement may be approved, even if the perpetuated conduct might not withstand scrutiny under the rule of reason

. Bennett , 737 F.2d at 987

. The district court did not abuse its discretion

. Home Depot offers no ev idence that the Exclusive Service Area policy is a per se violation of the Sherman Act . It instead argues that the district

court already ruled that the Exclusive Service Area policy i s subject to the per se rule. But t he district court never made that rul ing. It ruled only that the a ggreg ation of all the challenged restraints constituted a per se violation of antitrust law ; it did not rul e that any individual restraint constituted a per se violation

. Because Blue Cross mat erially changed its s ystem by adding procompetitive features and eliminating some anticompetitive features, the district court concluded that the post

- settlement system , which included the Exclusive Service Area policy, would not be clearly illegal. I ts pe rpetuation wa s “no bar to approval.” Id. USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 18 of 4522

- 13051 Opinion of the Court 19

c

. The Release Covers Only Claims Based on an Identical Factual Predicate. Home Depot argues that the settlement exceeds the limits of the identical -factual- predicate doctrine because it releases claims arising from “any issue raised in any of the Subscriber Actions by pleading or motion” and from “mechanisms, rules, or regulations ” by the individual plans and the Association, within the scope of the settlement agreement as approved by the monitori ng committee. Home Depot argues that this language exceeds the identical factual predicate because it requires only some overlap with a fact or issue raised in the litigation

. In its review of a settlement, “a court may permit the release of a claim based on the identical factual predicate as that underlying the claims in the settled class action.” Matsushita Elec. Indus. Co. v. Epstein , 516 U.S. 367, 377 (1996) (citation and internal quotation marks omitted) . Under the identical -factual- predicate doctrine, asettlement agreement may release claims that share a common nucleus of operative fact with the claims in the underlying litigation. See Adams , 493 F.3d at 1289. In practice, the doctrine mirrors res judicata : a release may lawfully bar later action s arising from the

same cause as the settled litigation

. TVPX ARS, Inc. v. Genworth Life and Ann u ity Ins. , 959 F.3d 1318, 1325 (11th Cir. 2020). We have recognized that res judicata applies not only to the precise legal theory presented in the previous litig ation but to all legal theories and claims arising out of a c ommon nucleus of fact. Trustmark Ins. v. ESLU, Inc. , 299 F.3d 126 5 , 1270 n.3 (11th Cir. 2002)

. USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 19 of 4520 Opinion of the Court 22

- 13051

The district court did not abuse its discretion. The release it approved is no broader than other re lease s we have approved. W e have approved settlement agreements releasing claims “ in any way related ” to the factual predicate of the underlying litigation. Thomas
, 594 F.3d at 817 ( requiring the district court to enforce a release provision that “released and forever discharged” “ all causes of action ,” including antitrust claims, “ that are, were or could havebeen asserted against any of the Released Parties by reason of, arising out of, or in any way related to any of th e facts, acts, events, transactions, occurrences, courses of conduct, business practices,representations, omissions, circumstances or other matters referenced in the Action ” ) ; see also In re Managed Care , 756 F.3d at 1226 (holding that the district court did not abuse its discretion in enforcing a release that discharged all claims “ based on ” the releasing party’s prior conduct ). So too here.
T he settlement agreement limits the release to claims arising from the factual predicates of the subscriber action. It defines released claims as those “ based upon, arising from, or relating in any way to: (i) the factual predicates of the Subscriber Actions

. . . (ii) any issue raised in any of the Subscriber Actions by pleading or motion ; or (iii) mechanisms, rules, or regulations by the Settling Individual Blue Plans and [the Association] within the scope of ” the relief awarded to the injunctive class. Th is language cab ins the scope of the release

. The release does not extend beyond claims arising from the common nucleus of operative fact: all the released claims either were raised or could have been raised during the litigation that preceded the settlement

. The release does not bar any USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 20 of 4522

- 13051 Opinion of the Court 21

claims that c ould not have been litigated before settlement or any claims related to conduct that was not challeng ed in the underlying lawsuit.

2. The District Court Did Not Err by Approv ing a Settlement in Which the Same Named Plaintiffs and Counsel Represented Both th e Injunctive Class and the Damages Class. Home Depot next argues that the settlement violates Rule 23 and the Due Process Clause because the same named plaintiffs and counsel represented the i njunctive c lass and the d amages c lass when the classes had competing settlement priorities

. See F ED

. R. C IV

. P . 23(a)(4); U.S. C ONST

. amend. V. Rule 23(a)(4) and the Due Process Clause require adequate representation of settlement class members by the named representatives and counsel. Home Depot

a rgues that the representation of the i njunctive c lass was inherently inadequate because of the shared representation

. We disagree.
O ur precedents do not categorically prohibit the same plaintiffs and counsel from representing an injunctive relief class and a damages class. Minor conflicts are not enough to render representation inadequate: the conflict must be “substantial” and “fundamental” to the specific issues in controversy. Valley Drug Co. v. Geneva Pharm s
. , Inc. , 350 F.3d 1181, 1189 (11th Cir. 2003) (citation and internal quotation marks omitted)

. “ A fundamental conflict exists where some party members claim to have been harmed by the same conduct that benefitted other members of the class. ” Id. Home Depot fails to identify any substantial conf lict between the settlement classes . It points out that the Rule 23(b)(2) USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 21 of 4522 Opinion of the Court 22

- 13051
class would receive injunctive relief and the Rule 23(b)(3) class would receive distributions from the settlement fund. But it never explain s why this difference is “fundamental.” Id

. Unlike the two subclasses in In re Payment Card Interchange Fee and Merch. Disc. Antitrust Litig. , 827 F.3d 223 , 233

– 34 (2d Cir. 2016), on which Home Depot relies, the classes’ memberships here are virtually identical

. Considering that most of the class members were eligible for bothinjunctive and monetary relief, it does not follow that the class representatives and counsel had an y incentive to trade away injunctive relief in favor of damages. Compare In re Checking Acct

. Overdraft Litig. , No. 20

- 13367 , 2022 WL 472057, at *4

– 5 (11th Cir. Feb. 16, 2022) ( holding that common representation was adequate whe n different classes of plaintiffs were injured in the same way by the same conduct)
, with In re Payment Card , 827 F.3d at 235 ( hold ing that representati on was inadequate when there was little overlap between the Rule 23(b)(2) class and the Rule 23(b)(3) class). Given the near

- complete overlap in class membership , Home Depot also does not offer any evidence that one class was harmed by conduct that benefit ted the other. Because there was no fundamental conflict of interest between the representatives and the class es , the district court did not abuse its discretion

.

3. Home Depot Forfeited Arguments about Intra c lass Conflict. Home Depot also argues that intra class conflicts with in the i njunctive c lass violated Rule 23 . T he subscriber

- proponents

move d to strike those arguments because the y were not made in the opening brief. We will not consider issues that a party fails to USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 22 of 4522

- 13051 Opinion of the Court 23 brief adequately. “A party fails to adequately brief a claim when he does not plainly and prominently raise it, for instance by devoting a discrete section of his argument to those claims.” Sapuppo v. Allstate Floridian Ins. , 739 F.3d 678, 681 (11th Cir. 2014) ( citation and internal quotation mark s omitted) . If a party makes only passing references to a n issue in its statement of the case or its summary of the argument in the opening brief, the issue is conside red abandoned. Id. at 681

– 82. We will not consider arguments advanced by appellants for the first time in a reply brief. I d. at 6 83. We agree that Home Depot abandoned these argument s by only briefly referenc ing potential intraclass conflicts in the summary of the argument in its opening brief

. Home Depot did not devote a discrete section of its opening brief to developing th e argument s . Each section Home Depot devote d to the adequacy of representation in its opening brief addresses only conflicts between the two cl asses, not conflicts within the classes. Yet Home Depot’s reply brief devotes nine pages to potential intraclass conflicts. Because those arguments were not developed in its opening brief, we will not consider them. We grant the subscriber

- proponents’ motion to strike.
B. Topographic Topographic challenges the allocation of the settlement funds

. It argues that the district court mis applied Rule 23(e)(2)(D) and ma de erroneous findings in approving the allocation
, and it contends that the district court abuse d its discretion when it approved a shorter damages period for the s elf

- f

unded c laimants. It USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 23 of 4524 Opinion of the Court 22

- 13051 challenges the approval of the fund percentage allocated to the s el ff unded claimants. And it argues that the settlement fund should have be en allocated to all claimants on the same basis. None ofthese arguments persuade us that the district court abused its discretion.

1. The District Court Applied the Correct Scrutiny to the Settlement Allocation

. Topographic conten ds that the district court failed to apply the correct scrutiny to the settlement allocation. It argues that the district court mis appl ied Rule 23(e)(2)(D) as amended because it approved a facially unequal allocation. It also contends that the district court based its approval of the allocation on inadequate evidence and erred in rel ying on Dr. Mason’s expert report. Topographic contends that
, in approving the allocation, the district court also erro neous ly found that s elf -f

unded c laimants purchased only administrative services from Blue Cross. And Topographic argues that the district court erred when it denied discovery of emails between Dr. Mason and the f ully i nsured c laimants’ counsel. We address each argument in turn.

a. The District Court Adhered to Rule 23 (e)(2).Topographic argues that the facially unequal allocation between the f ully i nsured c laimants and the s elf -f

unded claimants establishes that the district court mis appl ied Rule 23(e)(2)(D) , which requires class members to be treated equitably

. See F ED

. R. C IV

. P. 23(e)(2)(D) (“If the proposal would bind class members, the court may approve it only after a hearing and only on finding that USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 24 of 4522

- 13051 Opinion of the Court 25 it is fair, reasonable, and adequate after considering whether

. . . the proposal treats class members equitably relative to each other.”). But the text of the amended rule requires equity, not equality, and treating class members equitably does not necessarily mean treating them all equally

. Topographic highlight s that some of our sister circuits have explaine d that since Rule 23(e)(2) was amended, a settlement should not be given a presumption of reasonableness whenever it is the product of an arm ’ s

- length negotiation. See, e.g. , Moses v. N.Y. Times Co. , 79 F.4th 235 , 243 (2d Cir. 2023); Roes, 1

- 2 v. SFBSC Mgmt. , LLC , 944 F.3d 1035, 1049 n.12 (9th Cir. 2019). Although we have

not interpreted the 2018 amendment, we have recognized that “the district court should consider the impact of Congress’ 2018 amendments” to Rule 23(e) when applying it. Williams v. Reckitt Benckiser LLC , 65 F.4th 1243, 1261 (11th Cir. 2023)

. But the district court did

not presume that the allocation was reasonable because it was negotiated at arm ’ s length.
Th e district court i nstead review ed the allocation under each subpart of Rule 23(e)(2). It found that the class members were adequately represented in the light of counsel’s experience, vigorous advocacy over the course of the litigation, and diligent effort s to obtain discovery and engage expert witnesses

. See F ED

. R. C IV

. P . 23(e)(2)( A )

. It determined that the settlement was negotiated at arm’s length because there was no evidence of collusion and counsel worked diligently through multiple impasses with the special master and mediators to achieve resolution. See id. at 23(e)(2)( B )

. USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 25 of 4526 Opinion of the Court 22

- 13051

The district court then a nalyzed the adequacy of relief, considering th e costs, risks, and potential delay of trial and appeal, the effectiveness of distributing relief to the class, and the reasonableness of the requested attorney s’ fees. See id. at 23(e)(2)( C )

. It consider ed the length and expense of continued litigation, t he efficacy of the plan of distribution, the opportunity for claimants to participate, and the retention of an outside firm to process claims. And t he district court foun d that no collateral agreements needed to be identified for Rule 23(e)(2)(C)(iv). Fina lly, the district court rule d that the proposal treats class members equitably relative to each other, as required by Rule 23(e)(2)(D). It considered the differences between the s elf

- f

unded c laimants and the f ully i nsured c laimants like differing litigation risks, incurred costs, and claim strengths before concluding that the two were treated equitably. T he district court did

not pre sume that the settlement was reasonable because it was negotiated at arm’s length

. Topographic a rgue s that the distr ict court abused its discretion because our precedent requires settlement proponents to meet a heightened evidentiary burden under Holmes v. Cont ’ l Can Co

. , 706 F.2d 1144 (11th Cir. 1983). B ut Topographic misunderstands that precedent. Although we have sta ted that “a disparate distribution favoring the named plaintiffs requires careful judicial scrutiny into whether the settlement allocation is fair to the absent members of the class,” i d. at 1148, we have not extended this rule to all unequal distributions of settlement allocations. We impos e a heightened burden only when named plaintiffs receive a benefit at the expense of the absent class members

. Id. at 1147

– 48. USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 26 of 4522

- 13051 Opinion of the Court 27

There is no Holmes issue here : the s elf

- fu nded c laimants were represented by their own counsel and class representatives in the settlement negotiations and received some compensation from the settlement. Although the settlement agreement’s allocation is facially unequal, it is not facially unfair. T he district court did not abuse its discret ion.
b

. The District Court Had Evidentiary Support for the Settlement Allocation. Topographic next argues that the district court approved the settlement allocation based on inadequate evidence and erroneous factual findings. It contends that the allocation could not be approved without a separate a nalysis of damages for the s elf -f

unded

c laimants. But “when there are subclasses, each independently represented, an allocation formula may be negotiated without each subclass undertaking extensive analysis of it s relative damages if the available evidence is, at the time of the negotiations, insufficient to indicate a need for it.” In re Corrugated Container Antitrust Litig. , 643 F.2d 195, 219 (5th Cir. 1981). T he s elf -f

unded c laimants were represented by separate counsel during the settlement negotiations, and Topographic offer s no evidence of a need for a separate analysis

. Topographic also point s to no caselaw suggest ing that a separate analysis for the s elf -f

unded claimants was necessary

. Topographic a rgue s that the district court abused its discretion in approving the settlement allocation without evidentiary support

. In approving a settlement agreement, the district court

must undertake an analysis of the facts and the law relevant to the USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 27 of 4528 Opinion of the Court 22

- 13051 proposed compromise and support its conclusions “ by memorandum opinion or otherwise in the record. ” Cotton v. Hinton , 559 F.2d 1326, 1330 (5th Cir. 1977). The district court must provide us a basis for review ing the exercise of its discretion. Holmes , 706 F.2d at 1147. Topographic accuses the district court of adopting the representation s of class counsel and the m edia tor without evidentiary support. But the district court cited extensive evidence to supportits finding that the allocation was reasonable because of the comparative strengths of each class’s antitrust claims and relative competitiveness of the fully insur ed market. For example, the district court cited several exhibits establish ing that fully insured accounts are four to ten times more profitable tha n self

- funded accounts. It also pointed to evidence that self

- funded accounts were often loss

leaders for Blue Cross. It relied on expert testimony that the self

funded market was significantly more competitive, more price sensitive, and less capable of sustaining overcharges than the fully insured market. These facts supported the comparative strength of the fu lly i nsured c laimants’ underlying antitrust claims. T he district

court based its decision on more than the assurances of counsel and the mediator.

c. The District Court Did Not Abuse its Discretion in Relying on Dr. Mason’s Expert Report.Topographic argues that the district court abused its discretion in relying on the expert report of Dr. Joseph Mason , an economist, in its approval of the settlement allocation

. Topographic contends that Dr. Mason’s report lacks evidentiary support and USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 28 of 4522

- 13051 Opinion of the Court 29

tha t the district court needed to justify its reliance on Dr. Mason’s report over the other experts. We disagree. Dr. Mason’s report has an evidentiary basis. The record
, including evidence from Blue Cross about the differences between the fully insured marke t and the self

- funded market , supports Dr. Mason’s conclusions

. For example, the record contains documents from Blue Cross that establish differences in profitability between fully insured accounts and self

- funded accounts
, as well as documents that establ ish differences between the fully insured market and the self

- funded market. And contrary to Topographic’s argument, Dr. Mason’s report was not based on the assumption that self

- funded accounts purchase only administrative services from Blue Cross. In his report, Dr. Mason used four proxy methods to analyze the relative costs borne by the two classes of claimants

. In addition to directly compar ing fully insured accounts ’ premiums with self

- funded accounts’ administrative fees
, the analysis compared the relative net revenue
, overcharge differentials
, operating gain differential s, and revenue

- per

- member growth differences between fully insured and self

- funded accounts. The record belies any assertion that Dr. Mason’s report depended solely on comparing administrative fees with fully insured premiums

. T he district court also explained why it credited Dr. Mason’s testimony

. It recount ed Dr. Mason’s credentials and experience and cited evide nce supporting hi s expert opin ions. Topographic argues that the district court failed to discuss the Topographic expert’s report , and that the failure to do so led to USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 29 of 4530 Opinion of the Court 22

- 13051 a series of errors. But choosing to credit one expert opinion over another is within the sound discretion of the district court

. Battle v. United States , 419 F.3d 1292, 1299 (11th Cir. 2005) (“[A] d istrict court does not clearly err simply by crediting one opinion over another where other record evidence exists to su pport the conclusion .” (citation omitted)). T he district court cited evidence that supported its decision to credit Dr. Mason’s report, which is all our precedent require d it to do. See In re Corrugated Container , 643 F.2d at 215.
d

. The District Court Did N ot Erroneously Find that Self

- Funded Claimants Pay Only Administrative Fees. Topographic argues next that the district court erroneously found that s elf -f

unded c laimants pay only administrative fees. Topographic asserts that some s elf -f

unded c laimants also purchase other unbundled services like dental, vision, or stop

- loss insurance from Blue Cross. It contends that this factual error was central to the approval of the settlement agreement. Several state insurance department s a s amic i curiae ec ho this concern. The y worry that the district court’s opinion could be misconstrued as rul ing that stop

loss insurance is not insurance, which could cast doubt on the states’ authority to regulate stop

- loss insurance products.
T he district court made no error when it described the differences between the two groups of claimants. I t did not rule that

s elf -f

unded c laimants pay only claims processing fees or that stop

loss insurance is not insurance. Instead, it describe d the distinction between the f ully i nsured c laimants and the s elf -f

unded c laimants: USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 30 of 4522

- 13051 Opinion of the Court 31 one buys full

- service health insurance, and the other does not. S elf

funded accounts are often called “administrative services only” or “ASOs”

— in fact , the s elf

- f

unded c laimants are sometimes referred to as “the ASOs” in the briefing.
Even if the district court’s statement were a factual finding
, it is not clear how the “finding that [ the ] Self

- Funded [Claimants] ‘purchased administrative services only,’ not ‘insurance’ or other ancillary ser vices , ” was central to the approval of the settlement. Nothing in the record suggests that the district court’s analysis would have changed even if it had defined self

- funded accounts as those that purchase d administrative services, stop

- loss insurance, de ntal insurance, vision insurance, and other unbundled products. What matters is whether the re is a difference between the markets in which the f ully i nsured c laimants and s elf

- f

unded c laimants participated. Because the f ully i nsured c laimants purchased ful l

- service health insurance from Blue Cross, they paid premiums and o ther charges that the s elf

- f

unded c laimants did not. That some s elf

f unded c laimants purchased additional unbundled products does not change that reality. So even if the statement that the s elf

- f

unded

c laimants “purchased administrative services only” were a finding, it was not central to the approval of the settlement and was not reversible error. USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 31 of 4532 Opinion of the Court 22

- 13051

e

. The District Court Correctly Denied the Self

Funded Objecto rs’ Discovery Request under the Common

- Interest Privilege.
The district court al so did not abuse its discretion when it denied the s elf -f

unded objectors’ request to discover communications between the f ully i nsured c laimants’ counsel and Dr. Mason under th e common

- interest privilege , which applies when “multiple clients share a common interest about a legal matter.” United States v. Almeida , 341 F.3d 1318, 1324 (11th Cir. 2003) (citations and internal quotation marks omitted). T he privilege “serves to protect the confidentiality of communications passing from one party tothe attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel. ” United States v. Schwimmer , 8 92 F.2d 237, 243 (2d Cir. 1989). “ T he need to protect the free flow of information from client to attorney logically exists whenever multiple clients share a common interest about a legal matter.” Almeida , 341 F.3d at 1324 ( citations and internal quotations omitted). The common

interest privilege requires only “a substantially similar legal interest,” In re Teleglobe Commc’ns Corp. , 493 F.3d 345, 365 (3d Cir. 2007), not a “complete unity of interests among the participants
, ” United States v. Bergonzi , 216 F .R.D. 487, 495 (N.D. Cal. 2003)

. And “it mayapply where the parties’ interests are adverse in substantial respects.” Id.
The district court did not abuse its discretion when it denied the s elf -f

unded o bjectors’ discovery request based on the common

USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 32 of 4522

- 13051 Opinion of the Court 33

intere st privilege

. The s elf

- f

unded o bjectors sought to discover communications between their expert, Dr. Mason, and the f ully i nsured c laimants’ counsel to determine “Fully Insured [Claimants’] counsel’s input into the Mason Report.” The s elf

- f

unded c laimants and the f ully i nsured c laimants had a substantially similar interest in the litigation against Blue Cross and in the settlement negotiations. That the details of the settlement put them in adverse positions does not undermine their broader mutual interest.
Even if the district court mis appl ied the common

- interest privilege, we would not overturn its decision without any proof that the application harmed the self

- funded objectors

. “[ W ] e will not overturn discovery rulings unless

. . . [the] ruling resulted in substantial harm to the appellant’s case.” Harrison v. Culliver , 746 F.3d 1288, 1297 (11th Cir. 2014) (citation and internal quotation marks omitted)

. On appeal, Topographic ma kes no showing of ha rm. It instead s uggest s that there could have b een collusion between Dr. Mason and the f ully i nsured c laimants’ counsel and that discovery could have unearthed it. But Topographic admitted to the district court that there was no evidence of collusion and that it did not believe collusion tainted the se ttlement. T he district court did not abuse its discretion when it denied the objectors’ discovery request. USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 33 of 4534 Opinion of the Court 22

- 13051

2. The District Court Did Not Abuse its Discretion when It Approved the Self

- Funded Claimants’ Shorter Damages Period. Topographic a rgue s that the district court abused its discretion in approving the s elf

- f

unded c laimants ’ five

- year damages period while also approving the f ully i nsured c laimants’ 12.5

- year damages period

. The shorter damages period, Topographic contends, is based on the err oneous determination that the s elf

- f

unded

c laimants did not join the litigation until September 1, 2015. Topographic argues that the original subscriber complaint notified Blue Cross of the s elf

- f

unded c laimants’ damages claims, and so the s elf

f unded c laimants are entitled to a damages period dating to 2008

— the same starting date as the f ully i nsured c laimants. And e ven if self

- funded accounts were not included in the Cerven damages class, Topographic argues that because the Cerven complaint included cl aims for injunctive relief brought on behalf of the self

- funded accounts , the rul ing that the s elf

- f

unded c laimants’ later request for damages did not relate back under Federal Rule of Civil Procedure
15 (c) was erroneous. Whether the s elf

- fu nded c laimants’ damages period dates to 2008 depends on whether the self

- funded claimants were included in the Cerven complaint. Under Rule 15 (c) , the original complaint must put the defendants on notice of the claims being asserted. Makro Cap

. o f Am. , Inc. v. UBS AG , 543 F.3d 1254, 1260 (11th Cir. 2008); F ED

. R. C IV

. P

. 15 (c) . Topographic cites record evidence that could be read to suggest that Blue Cross had notice of the s elf

USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 34 of 4522

- 13051 Opinion of the Court 35

f unded c laimants’ damages claims, and the proponents of the settlement agreement offer co ntrary evidence. But what matters is whether a ny pleading gave Blue Cross notice of the s elf

- f

unded

c laimants’ request for damages.
The Cerven complaint does not include self

- funded accounts in its definition of the damages class. I t defines the d amages class as

“ [ a ] ll persons or entities who

. . . have paid health insurance premiums to [Blue Cross North Carolina] for individual or small group full

- service commercial health insurance.” See Complaint, Cerven , No. 5 :12

- cv

- 17

. Self

- funded accounts do not buy “full

- service commercial health insurance” from Blue Cross and do not pay health insurance premiums . The damages class
, as defined in the complaint
, did not include self

- funded claimants, and it did not give Blue Cross noti ce of the s elf

- f

unded c laimants’ potential claims for damages. Topographic argues that even if self

- funded accounts were not included in the damages class of the Cerven complaint , self

funded accounts were included in the injunctive class, which should ha ve put Blue Cross on notice that self

- funded accounts could later seek damages. But the injunctive class definition also does not clearly include self

- funded accounts. The complaint defines the injunctive class as “[a]ll persons or entities

. . . who are

c urrently insured by any health insurance plan that is currently a party to a license agreement with [Blue Cross] that restricts the ability of that health insurance plan to do business outside of any geographically defined area.” Although some self

- funded account s USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 35 of 4536 Opinion of the Court 22

- 13051 purchase insurance products like stop

- loss insurance from Blue Cross, they are not “insured” for healthcar e . Self

- funded accounts pay their own costs for employee health care

. I n other words, instead of having Blue Cross pay for healthcare costs, self

- funded accounts pay for administrative services and to obtain insurer rates with healthcare providers . The self

- funded employers pay their employee s’ healthcare costs

. I t is not clear from the Cerven complaint’s definition of the injunctive class that self

- funded accounts

are included because they are not necessarily “insured by [a] health insurance plan.” Other parts of the Cerven complaint confirm that self

- funded accounts were not included in the damages or injunctive class es. The complaint defines self

- funded accounts as those that purchase only administrative services , highlighting the differen ce between self

- funded and fully insured accounts. In its description of the anticompetitive structure that it attacks, the complai nt never mention s stop

- loss insurance or other unbundled products. That the Cerven complaint attacks “the Blue structure” is not enough for the

s elf

- f

unded c laimants’ damages claims to relate back. The complaint did not put Blue Cross on notice that the self

- funded claimants would seek damages, and the complaint d id not challenge anticompetitive conduct in the self

- funded market. See Caron v. N CL (Bahamas), Lt d. , 910 F.3d 1359, 1368 (11th Cir. 2018) (finding that the plaintiffs ’ new claim did not relate back because the original complaint “did not put [the defendant] on notice ” that the new claim “ could be relevant to the case”) . The district court did not abus e its discretion in rul ing that the s elf

- f

unded c laimants’ request USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 36 of 4522

- 13051 Opinion of the Court 37

for damages did not relate back to the Cerven complaint and in approving a settlement allocation with a shorter damages period for the m

. 3. The District Court Did Not Abuse its Discretion in Approving the 6.5 Percent Allocation for the Self

- Funded Claimants. Topographic also argues that the 6.5 percent settlement allocation for the s elf

- f

unded c laimants was based on “an arbitrary, retrospective 50 % discount on top of the truncated class period.” A

pproving the 6.5 percent allocation on top of a shorter damages period , according to Topographic, “halv [ed] the Self

- Funded[Claimants’] damages allocation a second time.” Topographic argues that the distri ct court made three errors in approving the allocation : (1) its approval was based on the clearly erroneous finding that self

- funded plans arrived late to the litigation, (2) it approved the application of the 50 percent discount factor without legal or fa ctual support, and (3) it failed to scrutinize the unequal treatment of the s elf

- f

unded cl aimants compared with the f ully i nsured c laimants. Topographic is wrong on all three point s. First, as we have explained , the district court did not err when it rule d that the s elf

f unded c laimants “arrived late to the litigation” because they were not included in either class in the Cerven complaint. Second, the argument that there is no “ legal or factual support” for the discount is a gross misstatement. The discoun t, which Dr. Mason applied in his expert report, reflects that the s elf

- f

unded c laimants, had they USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 37 of 4538 Opinion of the Court 22

- 13051 been forced to litigate independently without the benefit of the work done by the f ully i nsured c laimants, would have faced many years of uncertain and expensive litigation. A nd the s elf

- f

unded

c laimants had comparatively weaker antitrust claims because of the relative competitiveness of the self

- funded market

. T hese facts support the approval of the allocatio n. See, e.g. , In re Corrugated Container , 643 F.2d at 220; In re Holocaust Victim Assets Litig. , 413 F.3d 183, 186 (2d Cir. 2005); In re Agent Orange Prod. Liab. Litig. MDL No.
381 , 818 F.2d 1 79 , 183 (2d Cir. 1987). The district court did not abuse its dis cretion.

4. The District Court Did Not Abuse Its Discretion when It Allocated the Settlement Fund Between the Claimants

. Finally, Topographic argues that instead of dividing the claimants into classes and allocating the settlement fund between them, the set tlement should have been distributed to all subscribers on the same basis. Topographic contend s that the district court created a “ fundamental intra

- class conflict” by creating two subclasses. See Dewey v. Volkswagen Aktiengesellschaft , 681 F.3d 170, 188

– 89 (3d Cir. 2012 ).
But the inverse is true. T here m ight have been a fundamental intraclass conflict had the district court not created a subclass for self

- funded accounts . The s elf

- f

unded c laimants and the f ully i nsured c laimants incurred different cos ts during the litigation, and their respective antitrust claims involved different markets. Had the district court not divided the m into two subclasses, the potentially adverse interests of the self

- funded accounts and the fully USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 38 of 4522

- 13051 Opinion of the Court 39

insured accounts could have led to a conflict of interest. See i d. at 189

– 90. In any event , d ividing a class with potentially adverse interests into subclasses is within the sound discretion of the trial court

. S ee Califano v. Yamasaki , 442 U.S. 682, 703 (1979); Clark Equip

. Co. v. Int ’ l Union, Allied Indus

. Workers of Am

. , AFL

- CIO , 803 F.2d 878, 880 (6th Cir. 1986) . And the record support s the conclusion that the

s elf

- f

unded c laimants and the f ully i nsured c laimants had at least potent ially adverse interests

. T he district court did not abuse its discretion in dividing the m into subclasses.
C. Behenna Behenna, a pro se class member, argues that the district court erred in not applying a bifurcated analysis when determining the reasonableness of the attorneys ’ fees award. Because Behenna failed to raise this issue before the district court, it is forfeited. And even if the issue were not forfeited, the district court did no t abuse its discretion

. 1. Behenna Forfeited the Bifurcated Analysis Issue.
Behenna contends that the district court erred in failing to analyze separately attorneys ’ fees for billings related to injunctive relief and billings related to damages when approvin g the attorney s’ fees in the settlement agreement

. He argues that the district court should have used the lodestar methodology to assess appropriate fees for work related to the injunctive relief and then used the common fund doctrine to assess appropriate fees for work USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 39 of 4540 Opinion of the Court 22

- 13051 related to the monetary relief. B ut Behenna forfeited that issue by failing to raise it in the district court. If a party tries to raise an issue for the first time on appeal, we ordinarily will not consider it. Access Now, Inc. v. Sw. Airlines Co.
, 385 F.3d 1324, 1331 (11th Cir. 2004). Behenna made two objections in the district court : first, that the lodestar method ology should be used to determine the s ubscriber c ounsel’s fee, and second, that th e case is not a common fund action . Nei ther objection hint ed at the bifurcated analysis that Behenna now requests . In deed
, hi s objection that the settlement is not a common fund case directly contradicts his a rgument on appeal that the district court should have applied a common fund analysis t o the damages

- related attorney s’ fee s.
2. Alternatively , the District Court Did Not Abuse its Discretion.
Even if the bifurcated analysis issue were not forfeited, the district court did not abuse its discretion. Behenna contends that a bifurcated analysis was necessary because fee

- shifting statut ory awards are subject to the lodestar methodology , and Section 16 of the Clayton Act , which governs the i njunctive c lass’s claims, is a fee

shifting statute

. But whether the claim arose under a fee

- shifting statute “is of no consequence

. ” In re Equifax , 999 F.3d at 1279 n.24. What matters is the kind of fund that the settlement agreement
creates. See In re Home Depot Inc. , 931 F.3d 1065, 1082 (11th Cir. 2019) (“Where there has been a settlement, the basis for the statutory fee has been discharged, and it is only the fund that remains.” (citation and internal quotation marks omitted) )

. T he settlement agre ement USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 40 of 4522

- 13051 Opinion of the Court 41

create d a common fund. And, in this context, our precedent s make clear that the percentage

- of

- the

- fund method ology should be used to determine the reasonableness of attorney s ’ fees. See In re Equifax
, 99 9 F.3d at 12 80 ; see also Camden I Condo. Ass’n v. Dunkle , 946 F.2d768, 774 (11th Cir. 1991). The district court did not abuse its discretion in us ing the percentage

- of

- the

- fund analysis
, not the lodestar methodology or some combination of the two.
T he district court also correctly applied the percentage

- of

the

- fund doctrine. In a common fund settlement, attorneys ’ fees“shall be based upon a reasonable percentage of the fund established for the benefit of the class.” Camden I , 946 F.2d at 774

. Courts typically award fees o f 20 to 30 percent of the common fund
, s ee In

re Home Depot , 931 F.3d at 1 076 , and view t he mean of th at range

— 25 percent

— as a rough benchmark
, Camden I , 946 F.2d at 775 . If a fee award falls between 20 and 25 percent, it is presumptively reasonable. See Faught v. Am. Home Shield Corp. , 668 F.3d 1233, 1242 (11th Cir. 2011) . If the fee exceeds 25 percent, the district court must assess the reasonableness of the percentage using the 12 Johnson factors

. See Johnson v. G a. Highway Exp ress , Inc. , 488 F.2d 714
, 717

– 19 ( 5th Cir. 1974) , abrogated on other grounds by Blanchard v. Bergeron , 489 U.S. 87 (1989)

. T he actual fee sought by the subscribers’ counsel was 23.47 percent of the common fund. Even though this fee f ell within the range of reasonableness, Faught , 668 F.3d at 1242
, the district court review ed the percentage under the Johnson factors. As a cross

- check , the district court then used the lodestar to confirm the reasonable ness of the percentage. The Johnson factors and the lodestar cross

- check confirmed that a fee award of 23.47 USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 41 of 4542 Opinion of the Court 22

- 13051 percent was reasonable. Th at thorough analysis followed our precedents and was not an abuse of discretion.
D. Cochran and Craker
Cochran and Craker m ake two arguments on appeal. First, they argue that the plan of distribution violat es Rule 23(e)(2)(D) because the unequal distribution of unclaimed funds suggests inadequacy of representation for the employees of fully insured employers. Second, they argue that the district court abused its discretion in failing to address ERISA concerns raised by the settlement agreement. We address these arguments in turn

. 1. The Plan of Distribution Does Not Violate Rule 23(e)(2)(D).
The district court did not abuse its discretion in approving adistribution of unclaimed funds that differently allocates the unclaimed funds of the fully insured employers and the unclaimed funds of those employers’ employees. Cochran and Craker argue that the settlement agreement’s plan of distribution is fundamentally unfair because it reallocates the unclaimed funds of fully insured employers back into the settlement fund to be distributed on a pro

- rata basis to other f ully i nsured c laimants but reallocates theunclaimed funds of the employees to the employers. This distribution scheme, Cochran and Craker argue, suggests an adequacy of representation issue under Rule 23(e). The premise of Cochran and Craker’s critique of the plan of distribution

— that it is fundamentally unfair

— is false. Cochran and Craker argue that the district court abused its discretion in approving the plan of distribution despite Rule 23(e)(2)(D)’s requi rement USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 42 of 4522

- 13051 Opinion of the Court 43 that all class members be treated equitably relative to each other. That some class members’ unclaimed funds are treated differently than others, they argue, is inherently inequitable and shows that the employees of fully insured employers were not adequately represented. But like Topographic, Cochran and Craker conflate the

terms “equitably” and “equally.” The plan of distribution undoubtedly treats funds unclaimed by employers differently than the funds unclaimed by the ir employees , but the record shows that the plan of distribution was fair and reasonable. The fully insured employers bore a heavier monetary burden than their employees because most employers paid a portion of their employees’ premiums. And some employees of fully insured employers did not pay any portion of the premiums for their health insurance coverage

. T he plan of distribution might be unequal, but it is not inequitable.
Cochran and Craker also fail to show that the employees of the fully insured employers were not adequately represented or that the district court abused its discretion in not creating a separate subclass for the employees. A conflict of interest must be based on differences in the economic in terests of class representatives andunnamed class members, and the conflict must be so clear and substantial that it is “fundamental” to the issues in controversy. Valley Drug Co. , 350 F.3d at 1189 (citation and internal quotation marks omitted) . Neither requirement is satisfied here. The alleged inequity is not between class representatives and absent class members. It is between fully insured employers

— USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 43 of 4544 Opinion of the Court 22

- 13051 only some of whom are class representatives

— and their employees. There is no fundamental conflict betw een these two groups. Dividing the m into subclasses would be necessary only if the y had divergent interests. See In re Ins. Brokerage Antitrust Litig. , 579 F.3d 241, 272 (3d Cir. 2009). But the district court made clear that the

s ubscriber c lass representa tives share the same interests as absent class members, assert the same or substantially similar claims stemming from a common event, and share the same kinds of injuries. Because fully insured employers made more payments to Blue Cross on behalf of their employees and b oth employers and employees were subject to the same Blue Cross health insurance plans, it is hard to see how th ese two groups would have divergent interests requiring separate representation.

2. ERISA Is No Impediment to Approving the Settlement Agreement.
Cochran and Craker also echo the concern of the Department of Labor that the settlement agreement may affect the duties that employers and plan fiduciaries have under ERISA. They argue that because the plan of distribution does not exp ress ly instruct employers to comply with ERISA, its silence could lead to violations when the settlement proceeds are disbursed

. But as the district

court explaine d, nothing in the settlement agreement changes ERISA rights: the order approving the settlement states that “all ERISA duties still apply” and that “all ERISA fiduciaries must comply with those duties.” P lan s an d employee s retain their righ t s to USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 44 of 4522

- 13051 Opinion of the Court 45

sue under ERISA. T he fear of a speculative violation is no reason to reject the settlement.
IV. CONCLUSION
We AFFIRM the judgment approving the settlement agreement

. USCA11 Case: 22-13051 Document: 228-1 Date Filed: 10/25/2023 Page: 45 of 45