PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ THE ANDERSON LIVING TRUST, f/k/a The James H. Anderson Living Trust; ROBERT WESTFALL; MINNIE PATTON SCHOLARSHIP FOUNDATION TRUST, Plaintiffs - Appellants, and THE PRITCHETT LIVING TRUST; CYNTHIA W. SADLER; LEE WILEY MONCRIEF 1988 TRUST; KELLY COX TESTAMENTARY TRUST 7/1238401; SWMF PROPERTIES, INC., Plaintiffs,

v. WPX ENERGY PRODUCTION, LLC, f/k/a WPX Energy San Juan, LLC and Williams Production Company, LLC; WPX ENERGY ROCKY MOUNTAIN, LLC, f/k/a Williams Production RMT Company, LLC, Defendants - Appellees. No. 17-2029

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:12-CV-00040-JB-WPL)

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### September 21, 2018
Elisabeth A. Shumaker Clerk of Court2 Bradley Brickell, Brickell & A ssociates, P.C., Norman, Oklahoma , for PlaintiffsAppellants. Mark F. Sheridan, Holland & Hart LLP, Santa Fe , NM, (Stephen G. Masciocchi, Denver, CO, and Robert J. Sutphin, Jr., with him on the briefs), for De fendants-Appellees.

________________ _________________ Before BRISCOE , HARTZ , and PHILLIPS , Circuit Judges.

________________ _________________ PHILLIPS , Circuit Judge.

________________ _________________ In this case, we addres s the immediate app ealability of a distr ict court’s denial of class certification. The nam ed plaintiffs are the Anderson L iving Trust (formerly known as the James H. Anderson Li ving Trust), Robert Westfall, and the Minnie Patton Scholarship Foundation Trus t (collectively, the Trusts), 1 and the defendants are WPX Energy, Inc., and two of its subsidiaries (collectively , WPX). Two years after the district c ourt denied class certification, the parties settled the Trusts’ individua l claims. After settl ing, the parties join tly asked the court to enter a stipulated judgment dism issing with prejudice the Trust s’ individual claims, and the court did so. In the j udgment, the Trusts reserved any right they may have to appeal the district court’s clas s-certification denial. The Tru sts now appeal that denial, contending that the class -certification order merged wi th the stipulated judgment dismissing their indivi dual claims, resulting in a fin al, appealable order under 28 U.S.C. § 1291.

1 The Pritchett Living Trust, Cyn thia W. Sadler, the Lee Wiley M oncrief 1988 Trust, the Kelly Cox Testamenta ry Trust 7/1238401, and SWMF Pro perties, Inc. were also named plaintiffs. But t hey haven’t joined this appeal

.3 Relying on Microsoft Corp. v. Baker , 137 S. Ct. 1702 (2017), we hold that we lack statutory appellate jurisdict ion to review the district co urt’s order denying class certification. Voluntarily dismiss ing the Trusts’ individual cl aims with prejudice after settling them doesn’t convert the class-certification denial—an inherently interlocutory order—into a fin al decision under 28 U.S.C. § 129 1. We dismiss this appeal. 2
BACKGROUND The Trusts and more t han 1,000 putative cl ass members (as lesso rs), and WPX (as lessee), are signatories to 50 7 separate gas leases coverin g 3,157 gas wells in the San Juan Basin—2,889 in New Mexi co and 268 in Colorado. WPX hol ds the working interests in these leases, en titling it to develop and produce the hydrocarbons beneath the leased land. For their part , the Trusts and putative class members retain royalty interests, overriding royalty int erests, or both , in the hydroc arbons produced. 3 On December 5, 2011, the Trusts filed a putative class action a gainst WPX in New Mexico state court, alleging s even claims: (1) that WPX und erpaid royalties and

2 We deny the Trusts’ motion to certify to the New Mexico Suprem e Court the question “whether the marketabl e condition rule applies to priv ate royalty leases and overriding royalty instruments in New Mexico.” Appellants’ Mot. to Certify at 4; see also Anaconda Minerals Co . v. Stoller Chemical Co. , 990 F.2d 1175, 1177 (10th Cir. 1993) (“The Court will certify only questions whi ch are both un settled and dispositive.”).

3 A royalty interest in a gas lease is a real-property interest that vests when the developer extracts the gas. An overriding royalty interest is d ifferent. It is created by an assignment of the lessee’s interest and bears no relationshi p to the lessor’s royalty interest.4 overriding royalties; (2) that WP X committed fraud, misstated t he value of the hydrocarbons, and wrongly partic ipated in affiliate sales; 4 (3) that WPX breached its duty to market the hydrocarbons d eveloped from the leases; (4) that WPX violated the New Mexico Oil and Gas Pro ceeds Payment Act; (5) that WPX b reached the lease contracts by acting in bad faith; (6) that WPX unjustly e nriched itself; and (7) that WPX converted the Trusts’ a nd putative class members’ roya lties and overriding royalties. WPX removed the case to the United States District C ourt for the District of New Mexico. Two years into the litigation, t he Trusts moved to certify thei r claims as a class action. Among the issues the Tru sts sought to certify were thes e two: (1) whether WPX, under the terms of the lea ses, should be paying royalties and overriding royalties to the Trusts and puta tive class members based on “th e price WPX and its affiliates received in the first arm’s length sale . . . from t he hydrocarbons produced and sold from their wells” and (2 ) whether WPX, under the terms of the leases, could pay royalties to the Trusts and putative class members based on an index value “when WPX and its affiliates receive[d ] a higher value for said hydro carbons.” 5 Appellants’ App. vol. 3 at 657 ¶¶ 5, 7. WPX op posed the motion. On March 19 , 2015, the district

4 WPX allegedly transfers title to the hydrocarbons it produces on the leased land to two of its affiliate comp anies for a contracted “price” (though no money ever changes hands)—an alleged affili ate “sale”—before selling the h ydrocarbons to unaffiliated companies (arms-length sales).

5 The industry considers the index value to be the “market value ” for the hydrocarbons at the time and loca tion of delivery. Appellants’ App. vol. 7 at 1629:24–1630:2.5 court declined to certify the c lass. The Trusts filed a Motion to Reconsider, which the court also denied. Four months later, the Trusts file d a Fifth Amended Complaint, alleging an additional class claim: that WP X had breached its duty to sell the Trusts’ and putative class members’ hydrocarbons at th e highest obtainable price and to pay them royalties and overriding royaltie s based on that price. Citing Fed. R. Civ. P. 23(d)(1)(D), WPX moved to strike the Fifth Amended Complaint’s class allegations bearing on the new claim—the dut y to sell the hydrocarbons at t he highest obtainable price—arguing that the court had already denied class certifica tion. But, noting that the Trusts hadn’t asserted this highest-obtainable-price claim in their first certification motion, the court re fused to strike the class all egations based on this additional claim. The district co urt said the Trusts could move to certify the new claim. 6 Instead of moving to certify thi s additional class claim, the T rusts settled with WPX. The parties jointly moved to enter a stipulated judgment d ismissing the Trusts’ individual claims, advising that “ [a]ll Plaintiffs’ claims for relief alleged in this Action are hereby dismissed with prejudice pursuant to the sett lement between the parties.” Appellants’ App. vol. 11 at 2836 ¶ 1. In the judgment , the Trusts reserved “any rights [they] may have to appeal the Court’s Order . . . d enying their motion for class certification, i ncluding the Court’s denial of Plaintiffs ’ motion for

6 The Trusts never moved to certi fy the highest-obtainable-price claim, and that claim is not par t of this appeal.6 reconsideration thereof.” Id. at 2836–37 ¶ 2. A month late r, the Trusts appealed the orders denying class certificat ion and reconsideration. After oral argument in the Tru sts’ appeal, we ordered supplemen tal briefing on whether we have jurisdiction to decide the appeal. In our order , we observed that “[i]n Microsoft Corp. v. Baker , 137 S. Ct. 1702, 1711 ( 2017), the majority opinion identified some of the options the Baker plaintiffs had other than voluntarily dismissing their claims with pre judice.” Suppl. Br. Order at 1. As one option, the
Baker majority listed the settlement o f the named plaintiffs’ indivi dual claims—the option that the Trusts chose here. Baker , 137 S. Ct. at 1711. So we asked each party to file a brief answering the following questions:
1. Did the plaintiffs in the present case settle their individual claims for full and fair value? 2. If so, how does that affect this court’s jurisdiction under 28 U.S.C. § 1291 to hear the present appeal under Baker ? 3. Even if fully and fairly settli ng their individual claims would give this court jurisdiction under 28 U.S.C. § 1291, would this court sti ll lack jurisdiction under Article III of the United States Constitutio n’s case-orcontroversy requirement? Suppl. Br. Order at 1–2. The parties timely submitted thei r briefs. The Trusts contend ( 1) that the parties settled for full and fair value; (2) that we have jurisdiction under 28 U.S.C. § 1291 to review their appeal without transgressing Baker ; and (3) that we have Article III jurisdiction to review their appe al. WPX disputes the Trusts’ c laims, arguing (1) that whether the settlement figure co nstituted full and fair value f or the Trusts’ individual7 claims can’t be determined; (2) that Baker establishes that we have no statutory appellate jurisdiction under § 1291; and (3) that we lack Article III jur isdiction over the Trusts’ appeal.
DISCUSSION We first consider the options a vailable to named plaintiffs see king appellate review of orders denying class certification. Next, we examine the Supreme Court’s
Baker decision. Finally, we apply Baker ’s framework to the Tr usts’ attempted § 1291 appeal to determine whethe r we have jurisdiction.
A. Options to Appeal Adverse Cl ass-Certification Orders Named plaintiffs seeking appella te review of an order denying c lass certification have three options. See Baker , 137 S. Ct. at 1709, 171 1. First, they may litigate “their individual claims on the merits to final judgme nt,” and then appeal the order denying class certific ation under 28 U.S.C. § 1291. Id. at 1706. Section 1291 provides appellate jur isdiction from “fina l decisions of the di strict courts.” 28 U.S.C. § 1291. “A ‘final decision’ is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States , 324 U.S. 229, 233 (1945) (citing St. Louis, I.M. & S. Ry. Co. v. S. Express Co. , 108 U.S. 24, 28 (1883)). This finality principle precludes immediate review of interlocu tory orders, such as class-cer tification orders, unles s Congress provides ot herwise. See Mohawk Indus., Inc., v. Carpenter , 558 U.S. 100, 106 (2009) (noti ng that, to preserve § 1291’s finality principle, only a small class of collateral rulings ar e immediately appealable);8 see also Vallario v. Vandehey , 554 F.3d 1259, 1261 (10th Cir. 2009) (noting that no appeal of right exists for an adve rse class-certification order ). The principle thus guards against “piecemeal, prej udgment appeals,” which “undermi ne[] ‘efficient judicial administration’ and en croach[] upon the prerogatives o f district court judges, who play a ‘special role’ in managing ongoing litigation.” Mohawk Indus. , 558 U.S. at 106 (quoting Firestone Tire & Rubber Co. v. Risjord , 449 U.S. 368, 374 (1981)). Preventing such appeals thus prese rves “a healthy legal system. ” Baker , 137 S. Ct. at 1715 (quoting Cobbledick v. United States , 309 U.S. 323, 326 (19 40)). And § 1291’s general prohibition of interlocu tory appeals of class-certifica tion orders aligns with this goal. See id. at 1712, 1715. Second, named plaintiffs may pur sue an interlocutory appeal und er 28 U.S.C. § 1292(b)’s two-step process. Id. at 1711. Section 1292(b) permits interlocutory appeals (1) if the district-cour t judge certifies that the inte rlocutory order involves “a controlling question of law as to which there is substantial gr ound for difference of opinion and that an immediate a ppeal . . . may materially advan ce the ultimate termination of the litigation” and (2) if the court of appeals “permit[s] [th e] appeal to be taken.” 28 U.S.C. § 1292(b). Third, they may petition the cour t of appeals for review under Fed. R. Civ. P. 23(f). Baker , 137 S. Ct. at 1709. Rule 23(f) gi ves courts of appeals unfett ered discretion to “permit an appeal f rom an order granting or denyi ng class-action certification.” Fed. R. Civ. P. 23(f). And a court of appeals m ay grant an appeal “on the basis of any consideration th at [it] finds persuasive.” Fed . R. Civ. P. 23(f)9 advisory committee’s note to 1998 amendment. The advisory commi ttee anticipated that “[t]he courts of appeals w[ould] develop standards for gra nting review.” Id. It also predicted that appellate c ourts would “most likely” grant permission in two instances: “when the certificat ion decision turns on a novel or unsettled question of law, or when, as a practical mat ter, the decision on certificat ion is likely dispositive of the litigation.” Id. The rules committee adopted Rule 23(f) after the Supreme Court, in Coopers & Lybrand v. Livesay , 7 struck down the “‘d eath-knell’ doctrine.” Baker , 137 S. Ct. at 1707, 1709. The death-knell doctrin e had allowed a named plaint iff to appeal an order denying class certificati on under § 1291 if the denial wa s “likely to sound the ‘death knell’ of the litigation.” Coopers & Lybrand , 437 U.S. at 469. But the Supreme Court determined that orders appealed under the doctrin e don’t satisfy § 1291’s finality requirement. Id. at 477. “After Coopers & Lybrand , a party seeking immediat e review of an adverse class-certification order had no easy recourse.” Baker , 137 S. Ct. at 1708. So the civil rules advisory committe e drafted, and the Supreme Court approve d, Rule 23(f). Id. at 1709. Noting that “[a] grant or d enial of [class] certification can ‘make or break’ the litigation, and the need for revie w at times will be greatest i n situations that are least likely to lead to district-court certification,” the rule’s dra fters gave the courts of appeals broad discretion, indepe ndent of the district courts, t o entertain class-

7 437 U.S. 463, 476 (1978), superseded by rule as stated in Baker , 137 S. Ct. at 1708–09.10 certification appeals. Judicial C onference of the U.S., Advisor y Comm. on Civil Rules, Minutes of Nov. 9–10, 19 95. But because an absolute righ t to appeal classcertification orders “would lead t o abuse,” the drafters gave n o such right. Id. After all, they reasoned, “[a]ppeals in such cases are likely to do l ittle more than increase delay and expense.” Id. The drafters anticipated “t hat permission to appeal, although discretionary in the court of app eals, [would] rarely be given. ” Id.
B. Microsoft Corp. v. Baker Forty years after Coopers & Lybrand , the Supreme Court decided Baker . In
Baker , the named plaintiffs had filed a putative class action agains t Microsoft alleging that its videogame cons ole, the Xbox 360, scratched ga me discs during play. 137 S. Ct. at 1710. The named p laintiffs sought class certifica tion, but the district court struck their class allegations. Id. As a matter of comity , the district court concluded that a previous certifi cation denial by the same fede ral district court in a separate case concerning the same putative class controlled its certification decision.
Id. The named plaintiffs attempted t o secure immediate appellate r eview of the district court’s decision to st rike their class allegations by petitioning the Ninth Circuit under Rule 23(f). Id. at 1711. But that court re fused to hear their appeal. Id. Returning to their menu of appell ate options, the named plainti ffs attempted to obtain a final judgment under 28 U.S.C. § 1291. Id. But they took a novel approach. Rather than incurring the expens e and delay of litigating the c ase on the merits to final judgment, they moved volunt arily to dismiss their individ ual claims with prejudice. Id. But they reserved what they cont ended was their right to appeal the11 order striking their class allegations. Id. Microsoft stipulated to the dismissal but maintained that the named plaint iffs couldn’t appeal the distri ct-court order striking their class allegations. Id. After considering the named pl aintiffs’ request, the district court entered a final judgment d ismissing their individual clai ms. Id. The named plaintiffs then appealed from that final judgment under § 1291, contesting only the district court’s striking of thei r class allegations—not the fi nal order dismissing their individual claims. See id. On appeal, the Ninth Circuit held that it had Article III jurisdiction over the named plain tiffs’ class-certification app eal because, absent a settlement, the partie s remained adverse. Baker v. Microsoft Corp. , 797 F.3d 607, 612 (9th Cir. 2015), rev’d , 137 S. Ct. 1702. The Supreme Court granted certiorari in Baker to resolve this question: “Do federal courts of appeals have j urisdiction unde r § 1291 and Ar ticle III of the Constitution to review an order d enying class certification (or , as here, an order striking class allegations) afte r the named plaintiffs have vol untarily dismissed their claims with prejudice?” Baker , 137 S. Ct. at 1712. Avoiding t he constitutional issue, the Court answered no under § 1291. 8 Id. The Supreme Court identified three drawbacks to what it characterized as the named plaintiffs’ “vo luntary-dismissal tactic.” Id. at 1713.

8 A three-justice minority conclude d that the named plaintiffs’ appeal qualified as a final decision under 28 U.S. C. § 1291 but that the Court l acked Article III jurisdiction to hear the appeal. Baker , 137 S. Ct. at 1715–16 (Thomas, J. concurring, joined by Roberts, C .J., and Alito, J.).12 First, the Court said the volun tary-dismissal tactic would invi te “protracted litigation and piecemeal appeals.” Id. The Court rejected the named plaintiffs’ contention that the voluntary-di smissal tactic would promote ef ficiency. Id. at 1713– 14. The Court warned that because “class certification often le ads to a hefty settlement,” “plaintiffs with wea k merits claims may readily as sume [the] risk” of “losing their claims for good” t o appeal as of right the distri ct court’s refusal to certify a proposed class. Id. at 1713 (quoting Br. for R esp’ts at 35–36) (citing Coopers & Lybrand , 437 U.S. at 476). And named plai ntiffs employing the tactic may “exercise that option more than once, stopping and starting the district court proceedings with repeated i nterlocutory appeals.” Id. (citing Coopers & Lybrand , 437 U.S. at 474). Second, the Court said that the tactic would “undercut[] Rule 2 3(f)’s discretionary regime” by creati ng a means to obtain an appeal a s of right for classcertification denials. Id. at 1714. The tactic would a llow named plaintiffs to “altogether bypass Rule 23(f) [and] force an appeal by dismissi ng their claims with prejudice.” Id. The rule’s drafters “studied the data on class-certification r ulings and appeals, weighed various proposa ls, received public comment, an d refined the draft rule.” Id. (citing Michael E. Solimine & Christine Oliver Hines, Deciding to Decide: Class Action Certification and Interlocutory Review by the United States Courts of Appeals Under Rule 23(f) , 41 Wm. & Mary L. Rev. 153 1, 1564–66 & nn. 178–89, and Fed. Judicial Ctr., T. Willg ing, L. Hooper, & R. Niemic, Empirical Study of
Class Actions in Four Federal District Courts: Final Report to the Advisory13 Committee on Civil Rules 86, 80–87 (1996)). Their s tudy yielded “a ‘measured, practical solutio[n]’”: Rule 23(f). Id. (alteration in original) (quoting Mohawk Indus. , 558 U.S. at 114). Allowing named plaintiffs to bypass Rule 23(f ) would run contrary to the intent of the rule drafte rs, who settled when courts may permit interlocutory appeals of adverse cer tification orders. Id . So the Court reject ed any runarounds of Rule 23(f), observing that “[i]t is not the prerogative of liti gants or federal courts to disturb [the rule draf ters’] settlement.” Id. at 1715. Third, the tactic’s “one-sidedness ” would give the named plaint iffs an unfair advantage, “permit[ting] p laintiffs only, never defendan ts, to force an immediate appeal of an adve rse certification ruling.” Id. And “[y]et the ‘class issue’ may be just as important t o defendants, for ‘[a]n order granting certification . . . may force a de fendant to settle rather than . . . run the risk of potentially ruinous liability.’” Id. (second alteration in o riginal) (citation omitted) (quoting Coopers & Lybrand , 437 U.S. at 476, and Fed. R. Civ. P. 23(f) advisory committee’s note to 1998 amendment). Because of these drawbacks to the voluntary-dismissal tactic, t he Court determined that a judgment obtai ned through this sleight of han d doesn’t “qualify as a ‘final decision’ within the compass of § 1291.” Id. at 1707. So though the Baker named plaintiffs created a final judgment under § 1291 in a “te chnical” sense by voluntarily dismissing their i ndividual claims with prejudice, the Court determined that “practical” considerations —namely, § 1291’s finality princ iple and preserving14 Rule 23(f)’s balanced solution—pr ecluded appellate jurisdiction

. Id. at 1712 (quoting Eisen v. Carlisle & Jacquelin , 417 U.S. 156, 171 (1974)). C. Application of Baker Like the named plaintiffs in Baker , the Trusts seek a ppellate review under § 1291 of an order de nying class certification. But unlike the named plaintiffs in
Baker , the Trusts didn’t act unilatera lly—they first settled their i ndividual claims against WPX for consideration, and then voluntarily dismissed t heir claims with prejudice. Emphasizing this disti nction, the Trusts contend tha t Baker doesn’t control this case. The settlement, they claim, puts them “in no differe nt posture than had they litigated their claims to a pos itive, final judgment by jury tr ial.” Appellants’ Suppl. Br. at 7. Guided by Baker ’s three-drawback framework, we disagree. 9
1. Protracted Litigation and Piecemeal Appeals First, as in Baker , the danger of protracted litigation and piecemeal appeals remains even when named plain tiffs have settled their individua l claims. If we sanction the settlement approach , named plainti ffs who settle t heir individual claims would have a right to appeal ear lier denials of class certifica tion under § 1291. If those named plaintiffs so appeal , and the appeals court then re verses and remands the district court’s orde r denying class certific ation, the distric t court might decline to

9 Because 28 U.S.C. § 1291 does n’t “countenance jurisdiction by these means, we do not reach the constitutional question”—whether we have Ar ticle III jurisdiction to review an order denying class certification aft er the named plaintiffs settle their individual claims a nd then voluntarily dismiss the m with prejudice. Baker , 137 S. Ct. at 1712.15 certify the class “on a different ground.” See Baker , 137 S. Ct. at 1713. The named plaintiffs could then seek a s econd piecemeal appeal. The settl ement approach would thus bring with it the “stopping and starting [of] the district court proceedings with repeated” piecemeal interlocuto ry appeals, as does the voluntar y-dismissal tactic. See
id.
2. Rule 23(f)’s Discretionary A ppellate-Review Regime Second, like the Baker named plaintiffs’ voluntary-di smissal tactic , the Trusts’ settlement approach would disturb Rule 23(f)’s dis cretionary appellate-review regime. Baker , 137 S. Ct. at 1714. In Baker , the Supreme Court warned that sanctioning the voluntary-dismiss al tactic by granting jurisdic tion would let plaintiffs “altogether bypass Rule 23(f).” Id. Here, the Trusts tried to do just that, and they did so purposefully, admitting in the ir reply brief t hat “[g]iven t he uncertain and tenuous nature of a request for permiss ive appeal under [Rule] 23(f), t he only absolute right to seek this Court’s review of the denial of cl ass certificatio n [was] following a final judgment under 28 U.S.C. § 1291.” Appellants’ Reply Br. at 8 (e mphasis removed). But Rule 23(f)’s drafters intende d appellate review to be discr etionary with the courts of appeals. Judicial Conference of the U.S., Advisory Comm. on Civil Rules, Minutes of Nov. 9–10, 1995. Nevertheless, the Trusts conte nd that Rule 23(f) is irrelevant to their classcertification appeal because the post-settlement stipulated jud gment dismissing their individual claims “fulfills the requirements of a final decisio n under 28 U.S.C. § 1291.” Appellants’ S uppl. Br. at 6. The Baker named plaintiffs made a similar16 claim. They argued that their a ppeal technically complied with § 1291 because it involved “an actual final judgment,” not an interloc utory order from which they could petition a court of a ppeals under Rule 23(f). Baker , 137 S. Ct. at 1714 (quoting Br. for Resp’ts at 26, 28). So, the Baker named plaintiffs reasoned, Rule 23(f) didn’t apply and the Ninth Ci rcuit had jurisdicti on over their appeal under § 1291. Id. But the Supreme Court rejected the Baker named plaintiffs’ “technical[ly]” compliant § 1291 appeal. Id. at 1712 (quoting Eisen , 417 U.S. at 171). It did so because there, appellate review would have sanc tioned the volun tary-dismissal tactic, and that tactic wouldn’t furth er a healthy legal system. Id. at 1714–15. So, too, have the Trusts presented us a techni cally compliant final judgment under § 1291 that fails to preserve Rule 23(f)’s discre tionary-review regime and thus d oesn’t further a healthy legal system. By contra st, a hypothetical plaintiff who litigates her claims on the merits to final judgment isn’ t circumventing Rule 23(f) wit h a low-risk, highreward strategy that taxes § 12 91’s finality requirement, so ou r jurisdiction follows.
3. One-Sidedness Third, the Trusts’ settlement approach, like the voluntary-dism issal tactic, gives plaintiffs the advantage. See id. at 1715. Defendants enjoy no symmetrical right to settle named plaintiffs’ indi vidual claims and then appeal a class-certification grant. 10 Once the district court grants c ertification, “the entire clas s is the actual

10 Coopers & Lybrand explained the need for symmetrical opportunities for plaintiffs and defendants to appeal adverse class-certifica tion orders:17 plaintiff.” Erwin Chemerinsky, F ederal Jurisdiction 155 (7th ed . 2016). But “[c]lass members that have already settle d their claims prior to [a] cla ss action settlement are . . . no longer clas s members . . . .” 4 William B. Rubenstein, Newberg on Class Actions § 13:23 (5th ed. 2018). So when named plaintiffs settle their individual claims before a class settlement, they forego their class-membe r status and their interests become “divor ce[d]” from the class. Muro v. Target Corp. , 580 F.3d 485, 491 (7th Cir. 2009). And that divor ce means that an interlocuto ry order granting class certification wouldn’t merge into a stipulated final judgment d isposing of the formerly named plain tiffs’, now non-class members’, individuall y settled claims. Cf. West v. Capitol Fed. Sav. and Loan Assoc. , 558 F.2d 977, 980 (10th Cir. 1977) (noting that an order denying cla ss certification merges into a final judgment, The class issue—whether to certify, and if so, how large the cl ass should be—will often be of critical importance to defendants as well [as plaintiffs]. Certification of a large class may so increase the defendant’s potential damages liability and litigation costs that he may fi nd it economically prudent to settle a nd to abandon a meritorious def ense. Yet the Courts of Appeals have c orrectly concluded that orders granting class certification ar e interlocutory. 437 U.S. at 476 (emphases added); see also Baker , 137 S. Ct. at 1715 (“Respondents’ theory permits plainti ffs only, never defendants, to force an i mmediate appeal of an adverse certification ruling.” (emphasi s added)); Tr. of Oral Arg. at 23:16–20, Microsoft Corp. v. Baker , 137 S. Ct. 1702 (2017) (No. 15- 457) (“[D]efendants [are] being forced to undergo a tactic that it [sic] does not have wh en the converse is the case. In other words, where there ’s a grant of class certificat ion, defendants have no way to manufacture an automatic r ight to appeal.” (emphasis add ed)); Br. for Pet’rs at 28–29, Microsoft Corp. v. Baker , 137 S. Ct. 1702 (2017) ( No. 15-457) (“‘[T]he class issue . . . w ill often be of critical importance to defen dants . . . .’ Yet just like the death-knell doctrine, the vol untary dismissal tactic ignore s the symmetrical impacts of class certification decisions . . . . This one-way r atchet distorts litigation and settlement incentives in th ese high-stakes cases.” (emphasi s added) (citations omitted) (quoting Coopers & Lybrand , 437 U.S. at 476)).18 rendering the class-certificati on denial reviewable) (citing Monarch Asphalt Sales Co. v. Wilshire Oil Co. of Tex. , 511 F.2d 1073, 1077 (1975 )). So the asymmetry of the Trusts’ settlement approach reinforces our conclusion that it doesn’t support appellate jurisdiction under § 1291. See Baker , 137 S. Ct. at 1715 (quoting Coopers & Lybrand , 437 U.S. at 476). Litigation on the merits to fina l judgment, though, doesn’t cre ate the same lopsided opportunities as the Baker named plaintiffs’ volunta ry-dismissal tactic and the Trusts’ settlement approach . Unlike settling, litigating on the merits to final judgment and then appealing unde r § 1291 provides symmetrical o pportunities to plaintiffs and defendants. Then , dissatisfied nam ed plaintiffs or dissatisfied defendants can appeal an adve rse certification order. Similarly, Rule 23(f) provides symmetrical appeal opportunities for thwarted named plaintiffs and thwarted defendants. We have f ound it “generally appropriate” to grant a Rule 23(f) petition from a class-certification grant when “a defendant’s potential liability [is] so enorm ous that settlement ‘becomes t he only prudent
course.’” Vallario , 554 F.3d at 1263 (quoting Carpenter v. Boeing Co. , 456 F.3d 1183, 1189 (10th Cir. 2006)). L ikewise, we have found it “gener ally appropriate” to grant Rule 23(f) petitions of clas s-certification denials “wher e the high costs of litigation grossly exceed an indi vidual plaintiff’s potential d amages, [and] the denial of class certification sounds t he death knell of that plaintiff ’s claims.” Id. So plaintiffs and defendants can bot h seek relief from an adverse class certification order under Rule 23(f).19 And whatever differen ces may exist between permitting a plainti ff to force an immediate appeal of an adverse ce rtification order versus permi tting a defendant to do the same, balancing those diffe rences is a “question[] of po licy for Congress.”
Baker , 137 S. Ct. at 1715 (quoting Coopers & Lybrand , 437 U.S. at 476). For now, Congress has chosen “the rulema king process to settle the matte r, and the rulemakers did so by adopting Rule 23(f)’ s evenhanded prescription.” Id. We won’t disturb that settlement.
D. Options Available to the Trusts Post- Baker The Trusts argue that “no altern ative existed” to dismissing th eir claims with prejudice once the district court denied their class-certificat ion motion. Appellants’ Reply Br. at 8. This is untrue . They had four options—though on ly three created a path to appellate review. Their choices included: (1) “settl[in g] their individual claims;” (2) seeking district-cour t certification of the interl ocutory class-certification order and then this court’s pe rmission to appeal that order und er 28 U.S.C. § 1292(b); (3) petitioning for interlocutory review of the class-certifica tion order under Rule 23(f); or (4) litigating on the me rits to final judgment and th en appealing under 28 U.S.C. § 1291. Baker , 137 S. Ct. at 1709, 1711. They c hose option one, which create s no path to appellate review. We can’t widen the scope of § 1291 ’s final-judgment rule and extend “appellate review of interlocutory orders not c overed by statute” to include the Trusts’ settlement approach. Id. at 1714. Any changes must “come from rulemaking, . . . not judicial dec isions in particular controve rsies or inventive20 litigation ploys.” Id. (citing Swint v. Chambers Cty. Comm’n , 514 U.S. 35, 48 (1995)). Finding daylight between the Baker named plaintiffs’ voluntary-dismissal tactic and the Trusts’ settleme nt approach requires splitting h airs. Voluntary dismissal is functionally a settle ment for nothing. That the Tr usts managed to procure a price for the dismissal of the ir individual claims is simply a new take on the old voluntary-dismissal tactic. The T rusts can’t turn the district court’s class-certification denial, an “inherently interlocu tory” order, into a final, appe alable order within the compass of 28 U.S.C. § 1291 by settling their individual claims

. Id. at 1707 (quoting Coopers & Lybrand , 437 U.S. at 470). To hold oth erwise would disrupt Rule 23(f)’ s careful calibration. 11
CONCLUSION For the reasons above, we dismi ss this appeal for lack of juris diction. We deny the Trusts’ motion to certify. We gr ant WPX’s motion for leave to f ile the settlement agreement in support of their re sponse to the Trusts’ motion to certify, deny WPX’s

11 We acknowledge that the Ninth Ci rcuit has reached a different conclusion in an analogous case, Brown v. Cinemark USA, Inc. , 876 F.3d 1199, 1201 (9th Cir. 2017). In Brown , after the district court denied class certificat ion, the name d plaintiffs, like the Trusts here , sought to appeal the class-ce rtification denial as of right under 28 U.S.C. § 1291. 876 F.3d at 1200–01. The Ninth Ci rcuit permitted this. Id. at 1201. That court distinguished Baker from Brown based on the difference between settling claims for cons ideration and voluntarily dismi ssing them. Id. Unlike the Brown court, we apply Baker ’s three-drawback framewo rk to decide our appeal. For us, this leads to a different outcome.21 motion to file a sur-reply to t he Trusts’ reply brief, and we d eny the Trusts’ motion for leave to file a reply to WPX’s re sponse to the Trusts’ Rule 28( j) letter.