### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 1868

J ASON D OUGLAS

, Plaintiff

‐ Appellee

,

v.

T HE W ESTERN U NION C OMPANY

, Defendant

‐ Appellee

,

v.

B ETHANY C. P RICE

, Objector

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 14 C 1741

— Gary Feinerman

, Judge

.

____________________

A RGUED J ANUARY 30, 2020

— D ECIDED A PRIL 13, 2020

____________________

Before B AUER

, K ANNE

, and S YKES

, Circuit Judges

.

S YKES

, Circuit Judge

. Appellant Bethany Price objected to

a proposed class

‐ action settlement, but the district judge

ruled that she was not a class member and she did not

contest that ruling. Price then sought attorney’s fees and an2 No. 19

‐ 1868

incentive award for objecting. The judge denied her requests

because as a nonclass member, she had no standing to object

or to receive fees or an award. Price appeals the denial of her

fee and award requests, arguing that nonclass members can

be compensated for objecting. Because Price does not chal

‐ lenge the ruling that she is not a class member, we conclude

that she is not a party and lacks standing to appeal. Thus we

dismiss the appeal for lack of appellate jurisdiction.

I. Background

Price objected to the proposed settlement of a class action

filed by Jason Douglas (the class representative) against The

Western Union Company. The class complaint alleged that

Western Union violated the Telephone Consumer Protection

Act of 1934 by sending unsolicited text messages. The Act

prohibits using any “automatic telephone dialing system” to

make any call “to any telephone number assigned to a

... cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii); see

Campbell

‐ Ewald Co. v. Gomez

, 136 S. Ct. 663, 667 (2016) (“A

text message to a cellular telephone, it is undisputed, quali

‐

fies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).”). A

year into the suit, the parties agreed to settle for $8.5 million.

The proposed settlement defined the class as: “All Persons in

the United States who received one or more unsolicited text

messages sent by or on behalf of Western Union between

March 12, 2010 and November 10, 2015.”

After the parties notified the class of the proposed set

‐

tlement, four people objected, including Price. She thought

she was a class member because she had received two text

messages from Western Union. Price objected to the settle

‐

ment on several grounds: it inadequately compensated the

class; class counsel’s fee request was too high; the plaintiff’sNo. 19

‐ 1868 3

incentive award was too high; the class definition was

imprecise because it did not include her; and the list of class

members had errors.

The class representative and Western Union contested

whether Price had standing to object. They argued that she

could not be a class member because she had “filled out a

form in which she expressly consented to receiving text

messages for the exact purpose for which she received one.”

Western Union said that before sending text messages to

customers, it generally obtained consent twice. Customers

would consent when they first registered and again after an

opt

‐ in text message asked them to confirm that they wished

to receive additional text messages.

During settlement negotiations, the parties agreed that

two groups might have received “unsolicited” text messag

‐

es: (1) those who entered transactions on Western Union’s

website but did not sign up for its loyalty program, and

(2) those who transferred money via its website without

consenting to receive text messages about their transfer and

then received such a text. The parties maintained that Price

did not fall into either class group because Western Union’s

records confirmed that she had enrolled in its loyalty pro

‐

gram. To enroll, Price had to check a disclaimer box consent

‐ ing to receive text messages and had to consent to the loyalty

program’s terms, which stated that by providing her cell

‐ phone number to Western Union, she consented to receive

text messages. Thus, Western Union concluded, the two text

messages that Price received were not “unsolicited,” so she

was not a class member.

After the class representative moved for final approval of

the settlement, the judge held a fairness hearing. Price4 No. 19

‐ 1868

participated despite the ongoing dispute over her status as a

class member. The judge questioned class counsel about

whether the class was properly limited to the two customer

groups, voiced concerns about counsel’s billing records

(some of which were also raised by Price), and requested

more information about counsel’s time records. Class coun

‐

sel could not provide the information—he had no “detailed

time records”—so time sheets were “reconstructed” from

calendars, emails, and research records. Echoing the judge’s

concerns, Price continued to argue that the court should

reject the settlement and reduce class counsel’s fees.

With minor changes to the class definition, the judge cer

‐

tified the class, ruled that Price was not a member, approved

the settlement, and reduced class counsel’s fees. He amend

‐

ed the class definition to clarify that recipients of “unsolicit

‐

ed” text messages were in the class if they initiated

transactions online but did not sign up for the loyalty pro

‐

gram or initiated money transfers online without consenting

to text messages about the transfer. Price, the judge ex

‐ plained, did not fall into either category. The judge also cut

class counsel’s requested fees from $2.8 million to $425,000,

explaining that counsel’s “reconstructed” timesheets lacked

adequate support, were misleading, and reported “grossly

excessive” hours. Price moved for reconsideration, asking

the court to find that she was “a member of the Class as

originally defined” and to redefine the class to include all

customers who received text messages, even with consent.

The judge denied the motion.

Price did not appeal her exclusion from the class and did

not seek to intervene. Instead, she sought attorney’s fees and

an incentive award. The judge invited her to addressNo. 19

‐ 1868 5

“whether a person who never fell within the class definition

(original or modified) may move for fees and an incentive

award under Rule 23.” Price responded that no law barred

her request, so she was entitled to fees and an incentive

award for her success in reducing attorney’s fees and im

‐ proving the class definition. The motion was denied because

Price had cited “no authority for the highly questionable

proposition that a non

‐ class member can recover fees and an

incentive award under Rule 23.” Price appealed. The parties

then sought approval of a proposed settlement of her appeal

under Rules 23(e)(5)(C) and 62.1 of the Federal Rules of Civil

Procedure; the judge refused to approve it.

II. Discussion

On appeal Price does not challenge the finding that she

was not a class member. Instead, she contends that as a

nonparty she may nonetheless seek fees and an award if she

benefited the class. But her argument ignores a threshold

question: whether a nonparty to proceedings in the district

court has standing to appeal a decision that the nonparty

does not like. The Supreme Court has held that “only parties

to a lawsuit, or those that properly become parties, may

appeal an adverse judgment.” Marino v. Ortiz

, 484 U.S. 301,

304 (1988). A nonparty who is dissatisfied with a ruling in

the district court must seek to intervene for purposes of

appeal (and a denial of a request to intervene is itself ap

‐ pealable). Id. Price did not appeal the ruling that she was not

a class member, and after the court ruled that she was a

nonparty, she did not ask to intervene for purposes of

appealing any unwelcome rulings. Accordingly, under

Marino she lacks standing

.6 No. 19

‐ 1868

In Devlin v. Scardelletti

, the Supreme Court clarified that it

has never “restricted the right to appeal to named parties to

the litigation.” 536 U.S. 1, 7 (2002) (emphasis added). But

Devlin does not undermine the application of Marino to this

case. The Devlin appellant was an unnamed member of a

class certified under Rule 23. As a class member, the appel

‐

lant had standing to appeal from the district court. Id. at 6–7,

9. The Court emphasized that in class actions, unnamed class

members may be parties for purposes of appeal when they

have properly objected in the district court. Id. at 10. But

here, Price acquiesced to the court’s decision that she was not

an unnamed class member. And under Rule 23(e)(5)(A) only

a “class member” may object to a class settlement, so the rule

does not create standing for nonclass members like Price. See

Mayfield v. Barr

, 985 F.2d 1090, 1092–93 (D.C. Cir. 1993);

Gould v. Alleco, Inc.

, 883 F.2d 281, 284 (4th Cir. 1989).

At times we have allowed nonparties to appeal, but only

when the district court has ordered them to do something

(as with a contempt citation issued to nonparty witnesses) or

when they are agents of parties to the suit (as with attorneys

seeking fees). See Reynolds v. Beneficial Nat’l Bank

, 288 F.3d

277, 287–88 (7th Cir. 2002). Those circumstances do not

apply here. Citing Reynolds ’s discussion of common funds in

class actions, Price nonetheless argues that “[w]hen a lawyer

lays claim to a portion of the kitty, he becomes a real party in

interest.” Id. at 288. But that situation is distinguishable from

Price’s because those attorneys represented named or un

‐

named class members, both of whom (unlike Price) would

have standing in the district court

. See, e.g.

, In re Trans Union

Corp. Privacy Litig.

, 664 F.3d 1081, 1083–84 (7th Cir. 2011)

(concluding that the attorney who represented class mem

‐

bers who filed individual claims could participate in theNo. 19

‐ 1868 7

appeal filed by class counsel where the appeal would direct

‐ ly impact that attorney’s fees); Reynolds

, 288 F.3d at 287.

Price insists that we must have appellate jurisdiction be

‐

cause her appeal is “taken from an order denying [her]

motion for attorney’s fees, making [her] an aggrieved party.”

But by acquiescing to the ruling that she was not a class

member, she had no standing after that decision and could

not be “aggrieved” by any of the later rulings. If Price

thought she had a legal interest, she should have appealed

the decision that she was not a class member or sought to

intervene to become a party. See Marino

, 484 U.S. at 304

(noting that if a nonparty “has an interest that is affected by”

a district

‐ court ruling, “the better practice is for such a

nonparty to seek intervention for purposes of appeal,” with

denials of such motions being appealable); see also Devlin

,

536 U.S. at 12–13 (opining that the possibility of an objector

who is “not actually a member of the settlement class” is

likely a rare situation and could be resolved “by a standing

inquiry at the appellate level”). She did neither.

D ISMISSED