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 Court
2 

Bradley Brickell, Brickell & Associates, 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 Defendants-Appellees. 

_________________________________ 

Before BRISCOE, HARTZ, and PHILLIPS, Circuit Judges. 

_________________________________ 

PHILLIPS, Circuit Judge. 

_________________________________ 

In this case, we address the immediate appealability of a district court’s denial 

of class certification. The named plaintiffs are the Anderson Living Trust (formerly 

known as the James H. Anderson Living Trust), Robert Westfall, and the Minnie 

Patton Scholarship Foundation Trust (collectively, the Trusts),1

 and the defendants 

are WPX Energy, Inc., and two of its subsidiaries (collectively, WPX). 

Two years after the district court denied class certification, the parties settled 

the Trusts’ individual claims. After settling, the parties jointly asked the court to 

enter a stipulated judgment dismissing with prejudice the Trusts’ individual claims, 

and the court did so. In the judgment, the Trusts reserved any right they may have to 

appeal the district court’s class-certification denial. The Trusts now appeal that 

denial, contending that the class-certification order merged with the stipulated 

judgment dismissing their individual claims, resulting in a final, appealable order 

under 28 U.S.C. § 1291. 

 1

 The Pritchett Living Trust, Cynthia W. Sadler, the Lee Wiley Moncrief 1988 

Trust, the Kelly Cox Testamentary Trust 7/1238401, and SWMF Properties, Inc. 

were also named plaintiffs. But they haven’t joined this appeal. 
3 

Relying on Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), we hold that we 

lack statutory appellate jurisdiction to review the district court’s order denying class 

certification. Voluntarily dismissing the Trusts’ individual claims with prejudice after 

settling them doesn’t convert the class-certification denial—an inherently 

interlocutory order—into a final decision under 28 U.S.C. § 1291. We dismiss this 

appeal.2

BACKGROUND

The Trusts and more than 1,000 putative class members (as lessors), and WPX 

(as lessee), are signatories to 507 separate gas leases covering 3,157 gas wells in the 

San Juan Basin—2,889 in New Mexico and 268 in Colorado. WPX holds the working 

interests in these leases, entitling 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 interests, or both, in the hydrocarbons produced.3

 

On December 5, 2011, the Trusts filed a putative class action against WPX in 

New Mexico state court, alleging seven claims: (1) that WPX underpaid royalties and 

 2

 We deny the Trusts’ motion to certify to the New Mexico Supreme Court the 

question “whether the marketable condition rule applies to private 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 which are both unsettled 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 different. It is created by 

an assignment of the lessee’s interest and bears no relationship to the lessor’s royalty 

interest. 
4 

overriding royalties; (2) that WPX committed fraud, misstated the value of the 

hydrocarbons, and wrongly participated in affiliate sales;4

 (3) that WPX breached its 

duty to market the hydrocarbons developed from the leases; (4) that WPX violated 

the New Mexico Oil and Gas Proceeds Payment Act; (5) that WPX breached the 

lease contracts by acting in bad faith; (6) that WPX unjustly enriched itself; and (7) 

that WPX converted the Trusts’ and putative class members’ royalties and overriding 

royalties. WPX removed the case to the United States District Court for the District 

of New Mexico.

Two years into the litigation, the Trusts moved to certify their claims as a class 

action. Among the issues the Trusts sought to certify were these two: (1) whether 

WPX, under the terms of the leases, should be paying royalties and overriding 

royalties to the Trusts and putative class members based on “the price WPX and its 

affiliates received in the first arm’s length sale . . . from the 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 hydrocarbons.”5

 Appellants’ 

App. vol. 3 at 657 ¶¶ 5, 7. WPX opposed 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 companies for a contracted “price” (though no money ever 

changes hands)—an alleged affiliate “sale”—before selling the hydrocarbons 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 location of delivery. Appellants’ App. vol. 7 at 

1629:24–1630:2. 
5 

court declined to certify the class. The Trusts filed a Motion to Reconsider, which the 

court also denied. 

Four months later, the Trusts filed a Fifth Amended Complaint, alleging an 

additional class claim: that WPX had breached its duty to sell the Trusts’ and putative 

class members’ hydrocarbons at the highest obtainable price and to pay them 

royalties and overriding royalties 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 duty to sell the hydrocarbons at the highest obtainable 

price—arguing that the court had already denied class certification. But, noting that 

the Trusts hadn’t asserted this highest-obtainable-price claim in their first 

certification motion, the court refused to strike the class allegations based on this 

additional claim. The district court said the Trusts could move to certify the new 

claim.6

 

Instead of moving to certify this additional class claim, the Trusts settled with 

WPX. The parties jointly moved to enter a stipulated judgment dismissing the Trusts’ 

individual claims, advising that “[a]ll Plaintiffs’ claims for relief alleged in this 

Action are hereby dismissed with prejudice pursuant to the settlement 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 . . . denying their motion for 

class certification, including the Court’s denial of Plaintiffs’ motion for 

 6

 The Trusts never moved to certify the highest-obtainable-price claim, and 

that claim is not part of this appeal. 
6 

reconsideration thereof.” Id. at 2836–37 ¶ 2. A month later, the Trusts appealed the 

orders denying class certification and reconsideration. 

After oral argument in the Trusts’ appeal, we ordered supplemental 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 prejudice.” Suppl. Br. Order at 1. As one option, the 

Baker majority listed the settlement of the named plaintiffs’ individual 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 settling their individual claims would give this 

court jurisdiction under 28 U.S.C. § 1291, would this court still lack 

jurisdiction under Article III of the United States Constitution’s case-orcontroversy requirement? 

Suppl. Br. Order at 1–2. 

The parties timely submitted their 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 appeal. WPX disputes the Trusts’ claims, arguing (1) that 

whether the settlement figure constituted full and fair value for the Trusts’ individual 
7 

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 jurisdiction over the Trusts’ 

appeal. 

DISCUSSION 

We first consider the options available to named plaintiffs seeking appellate 

review of orders denying class certification. Next, we examine the Supreme Court’s 

Baker decision. Finally, we apply Baker’s framework to the Trusts’ attempted § 1291 

appeal to determine whether we have jurisdiction. 

A. Options to Appeal Adverse Class-Certification Orders

Named plaintiffs seeking appellate review of an order denying class 

certification have three options. See Baker, 137 S. Ct. at 1709, 1711. First, they may 

litigate “their individual claims on the merits to final judgment,” and then appeal the 

order denying class certification under 28 U.S.C. § 1291. Id. at 1706. Section 1291 

provides appellate jurisdiction from “final decisions of the district 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 interlocutory orders, 

such as class-certification orders, unless Congress provides otherwise. See Mohawk 

Indus., Inc., v. Carpenter, 558 U.S. 100, 106 (2009) (noting that, to preserve § 1291’s 

finality principle, only a small class of collateral rulings are 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 adverse class-certification order). The principle thus 

guards against “piecemeal, prejudgment appeals,” which “undermine[] ‘efficient 

judicial administration’ and encroach[] upon the prerogatives of 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 preserves “a healthy legal system.” Baker, 137 S. Ct. at 

1715 (quoting Cobbledick v. United States, 309 U.S. 323, 326 (1940)). And § 1291’s 

general prohibition of interlocutory appeals of class-certification orders aligns with 

this goal. See id. at 1712, 1715. 

Second, named plaintiffs may pursue an interlocutory appeal under 28 U.S.C. 

§ 1292(b)’s two-step process. Id. at 1711. Section 1292(b) permits interlocutory 

appeals (1) if the district-court judge certifies that the interlocutory order involves “a 

controlling question of law as to which there is substantial ground for difference of 

opinion and that an immediate appeal . . . may materially advance the ultimate 

termination of the litigation” and (2) if the court of appeals “permit[s] [the] appeal to 

be taken.” 28 U.S.C. § 1292(b). 

Third, they may petition the court of appeals for review under Fed. R. Civ. P. 

23(f). Baker, 137 S. Ct. at 1709. Rule 23(f) gives courts of appeals unfettered 

discretion to “permit an appeal from an order granting or denying class-action 

certification.” Fed. R. Civ. P. 23(f). And a court of appeals may grant an appeal “on 

the basis of any consideration that [it] finds persuasive.” Fed. R. Civ. P. 23(f)
9 

advisory committee’s note to 1998 amendment. The advisory committee anticipated 

that “[t]he courts of appeals w[ould] develop standards for granting review.” Id. It 

also predicted that appellate courts would “most likely” grant permission in two 

instances: “when the certification decision turns on a novel or unsettled question of 

law, or when, as a practical matter, the decision on certification 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 “‘death-knell’ doctrine.” Baker, 137 S. Ct. at 

1707, 1709. The death-knell doctrine had allowed a named plaintiff to appeal an 

order denying class certification under § 1291 if the denial was “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 doctrine don’t satisfy 

§ 1291’s finality requirement. Id. at 477. 

“After Coopers & Lybrand, a party seeking immediate review of an adverse 

class-certification order had no easy recourse.” Baker, 137 S. Ct. at 1708. So the civil 

rules advisory committee drafted, and the Supreme Court approved, Rule 23(f). Id. at 

1709. Noting that “[a] grant or denial of [class] certification can ‘make or break’ the 

litigation, and the need for review at times will be greatest in situations that are least 

likely to lead to district-court certification,” the rule’s drafters gave the courts of 

appeals broad discretion, independent of the district courts, to 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 Conference of the U.S., Advisory Comm. on Civil 

Rules, Minutes of Nov. 9–10, 1995. But because an absolute right to appeal classcertification orders “would lead to abuse,” the drafters gave no such right. Id. After 

all, they reasoned, “[a]ppeals in such cases are likely to do little more than increase 

delay and expense.” Id. The drafters anticipated “that permission to appeal, although 

discretionary in the court of appeals, [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 against Microsoft 

alleging that its videogame console, the Xbox 360, scratched game discs during play. 

137 S. Ct. at 1710. The named plaintiffs sought class certification, but the district 

court struck their class allegations. Id. As a matter of comity, the district court 

concluded that a previous certification denial by the same federal district court in a 

separate case concerning the same putative class controlled its certification decision. 

Id. The named plaintiffs attempted to secure immediate appellate review of the 

district court’s decision to strike their class allegations by petitioning the Ninth 

Circuit under Rule 23(f). Id. at 1711. But that court refused to hear their appeal. Id. 

Returning to their menu of appellate options, the named plaintiffs attempted to 

obtain a final judgment under 28 U.S.C. § 1291. Id. But they took a novel approach. 

Rather than incurring the expense and delay of litigating the case on the merits to 

final judgment, they moved voluntarily to dismiss their individual claims with 

prejudice. Id. But they reserved what they contended was their right to appeal the 
11 

order striking their class allegations. Id. Microsoft stipulated to the dismissal but 

maintained that the named plaintiffs couldn’t appeal the district-court order striking 

their class allegations. Id. After considering the named plaintiffs’ request, the district 

court entered a final judgment dismissing their individual claims. Id. The named 

plaintiffs then appealed from that final judgment under § 1291, contesting only the 

district court’s striking of their class allegations—not the final order dismissing their 

individual claims. See id. On appeal, the Ninth Circuit held that it had Article III 

jurisdiction over the named plaintiffs’ class-certification appeal because, absent a 

settlement, the parties 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 jurisdiction under § 1291 and Article III of the 

Constitution to review an order denying class certification (or, as here, an order 

striking class allegations) after the named plaintiffs have voluntarily dismissed their 

claims with prejudice?” Baker, 137 S. Ct. at 1712. Avoiding the constitutional issue, 

the Court answered no under § 1291.8 Id. The Supreme Court identified three 

drawbacks to what it characterized as the named plaintiffs’ “voluntary-dismissal 

tactic.” Id. at 1713. 

 8

 A three-justice minority concluded that the named plaintiffs’ appeal qualified 

as a final decision under 28 U.S.C. § 1291 but that the Court lacked 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 voluntary-dismissal tactic would invite “protracted 

litigation and piecemeal appeals.” Id. The Court rejected the named plaintiffs’ 

contention that the voluntary-dismissal tactic would promote efficiency. Id. at 1713–

14. The Court warned that because “class certification often leads to a hefty 

settlement,” “plaintiffs with weak merits claims may readily assume [the] risk” of 

“losing their claims for good” to appeal as of right the district court’s refusal to 

certify a proposed class. Id. at 1713 (quoting Br. for Resp’ts at 35–36) (citing 

Coopers & Lybrand, 437 U.S. at 476). And named plaintiffs employing the tactic 

may “exercise that option more than once, stopping and starting the district court 

proceedings with repeated interlocutory appeals.” Id. (citing Coopers & Lybrand, 437 

U.S. at 474). 

Second, the Court said that the tactic would “undercut[] Rule 23(f)’s 

discretionary regime” by creating a means to obtain an appeal as of right for classcertification denials. Id. at 1714. The tactic would allow named plaintiffs to 

“altogether bypass Rule 23(f) [and] force an appeal by dismissing their claims with 

prejudice.” Id. The rule’s drafters “studied the data on class-certification rulings and 

appeals, weighed various proposals, received public comment, and 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. 1531, 1564–66 & nn. 178–89, 

and Fed. Judicial Ctr., T. Willging, L. Hooper, & R. Niemic, Empirical Study of 

Class Actions in Four Federal District Courts: Final Report to the Advisory 
13 

Committee on Civil Rules 86, 80–87 (1996)). Their study 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 drafters, who settled when courts may permit interlocutory 

appeals of adverse certification orders. Id. So the Court rejected any runarounds of 

Rule 23(f), observing that “[i]t is not the prerogative of litigants or federal courts to 

disturb [the rule drafters’] settlement.” Id. at 1715. 

Third, the tactic’s “one-sidedness” would give the named plaintiffs an 

unfair advantage, “permit[ting] plaintiffs only, never defendants, to force an 

immediate appeal of an adverse certification ruling.” Id. And “[y]et the ‘class 

issue’ may be just as important to defendants, for ‘[a]n order granting 

certification . . . may force a defendant to settle rather than . . . run the risk of 

potentially ruinous liability.’” Id. (second alteration in original) (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, the Court 

determined that a judgment obtained through this sleight of hand 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 “technical” sense by 

voluntarily dismissing their individual claims with prejudice, the Court determined 

that “practical” considerations—namely, § 1291’s finality principle and preserving 
14 

Rule 23(f)’s balanced solution—precluded 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 appellate review under 

§ 1291 of an order denying class certification. But unlike the named plaintiffs in 

Baker, the Trusts didn’t act unilaterally—they first settled their individual claims 

against WPX for consideration, and then voluntarily dismissed their claims with 

prejudice. Emphasizing this distinction, the Trusts contend that Baker doesn’t control 

this case. The settlement, they claim, puts them “in no different posture than had they 

litigated their claims to a positive, final judgment by jury trial.” 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 plaintiffs have settled their individual claims. If we 

sanction the settlement approach, named plaintiffs who settle their individual claims 

would have a right to appeal earlier denials of class certification under § 1291. If 

those named plaintiffs so appeal, and the appeals court then reverses and remands the 

district court’s order denying class certification, the district court might decline to 

 9

 Because 28 U.S.C. § 1291 doesn’t “countenance jurisdiction by these means, 

we do not reach the constitutional question”—whether we have Article III 

jurisdiction to review an order denying class certification after the named plaintiffs 

settle their individual claims and then voluntarily dismiss them 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 second piecemeal appeal. The settlement approach would 

thus bring with it the “stopping and starting [of] the district court proceedings with 

repeated” piecemeal interlocutory appeals, as does the voluntary-dismissal tactic. See 

id.

2. Rule 23(f)’s Discretionary Appellate-Review Regime 

Second, like the Baker named plaintiffs’ voluntary-dismissal tactic, the Trusts’ 

settlement approach would disturb Rule 23(f)’s discretionary appellate-review 

regime. Baker, 137 S. Ct. at 1714. In Baker, the Supreme Court warned that 

sanctioning the voluntary-dismissal tactic by granting jurisdiction would let plaintiffs 

“altogether bypass Rule 23(f).” Id. Here, the Trusts tried to do just that, and they did 

so purposefully, admitting in their reply brief that “[g]iven the uncertain and tenuous 

nature of a request for permissive appeal under [Rule] 23(f), the only absolute right 

to seek this Court’s review of the denial of class certification [was] following a final 

judgment under 28 U.S.C. § 1291.” Appellants’ Reply Br. at 8 (emphasis removed). 

But Rule 23(f)’s drafters intended appellate review to be discretionary 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 contend that Rule 23(f) is irrelevant to their classcertification appeal because the post-settlement stipulated judgment dismissing their 

individual claims “fulfills the requirements of a final decision under 28 U.S.C. 

§ 1291.” Appellants’ Suppl. Br. at 6. The Baker named plaintiffs made a similar 
16 

claim. They argued that their appeal technically complied with § 1291 because it 

involved “an actual final judgment,” not an interlocutory order from which they 

could petition a court of appeals 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 Circuit had jurisdiction 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 sanctioned the voluntary-dismissal tactic, 

and that tactic wouldn’t further a healthy legal system. Id. at 1714–15. So, too, have 

the Trusts presented us a technically compliant final judgment under § 1291 that fails 

to preserve Rule 23(f)’s discretionary-review regime and thus doesn’t further a 

healthy legal system. By contrast, a hypothetical plaintiff who litigates her claims on 

the merits to final judgment isn’t circumventing Rule 23(f) with a low-risk, highreward strategy that taxes § 1291’s finality requirement, so our jurisdiction follows. 

3. One-Sidedness 

Third, the Trusts’ settlement approach, like the voluntary-dismissal tactic, 

gives plaintiffs the advantage. See id. at 1715. Defendants enjoy no symmetrical right 

to settle named plaintiffs’ individual claims and then appeal a class-certification 

grant.10 Once the district court grants certification, “the entire class is the actual 

 10 Coopers & Lybrand explained the need for symmetrical opportunities 

for plaintiffs and defendants to appeal adverse class-certification orders: 
17 

plaintiff.” Erwin Chemerinsky, Federal Jurisdiction 155 (7th ed. 2016). But “[c]lass 

members that have already settled their claims prior to [a] class action settlement 

are . . . no longer class 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-member status and their 

interests become “divorce[d]” from the class. Muro v. Target Corp., 580 F.3d 485, 

491 (7th Cir. 2009). And that divorce means that an interlocutory order granting class 

certification wouldn’t merge into a stipulated final judgment disposing of the 

formerly named plaintiffs’, now non-class members’, individually settled claims. Cf. 

West v. Capitol Fed. Sav. and Loan Assoc., 558 F.2d 977, 980 (10th Cir. 1977) 

(noting that an order denying class certification merges into a final judgment, 

 

The class issue—whether to certify, and if so, how large the class 

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 find it 

economically prudent to settle and to abandon a meritorious defense. 

Yet the Courts of Appeals have correctly concluded that orders granting

class certification are interlocutory. 

437 U.S. at 476 (emphases added); see also Baker, 137 S. Ct. at 1715 (“Respondents’ 

theory permits plaintiffs only, never defendants, to force an immediate appeal of an 

adverse certification ruling.” (emphasis 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 when the converse is the 

case. In other words, where there’s a grant of class certification, defendants have no 

way to manufacture an automatic right to appeal.” (emphasis added)); Br. for Pet’rs 

at 28–29, Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017) (No. 15-457) (“‘[T]he 

class issue . . . will often be of critical importance to defendants . . . .’ Yet just like 

the death-knell doctrine, the voluntary dismissal tactic ignores the symmetrical

impacts of class certification decisions . . . . This one-way ratchet distorts litigation 

and settlement incentives in these high-stakes cases.” (emphasis added) (citations 

omitted) (quoting Coopers & Lybrand, 437 U.S. at 476)). 
18 

rendering the class-certification 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 final judgment, though, doesn’t create the same 

lopsided opportunities as the Baker named plaintiffs’ voluntary-dismissal tactic and 

the Trusts’ settlement approach. Unlike settling, litigating on the merits to final 

judgment and then appealing under § 1291 provides symmetrical opportunities to 

plaintiffs and defendants. Then, dissatisfied named plaintiffs or dissatisfied 

defendants can appeal an adverse certification order. 

Similarly, Rule 23(f) provides symmetrical appeal opportunities for thwarted 

named plaintiffs and thwarted defendants. We have found it “generally appropriate” 

to grant a Rule 23(f) petition from a class-certification grant when “a defendant’s 

potential liability [is] so enormous that settlement ‘becomes the only prudent 

course.’” Vallario, 554 F.3d at 1263 (quoting Carpenter v. Boeing Co., 456 F.3d 

1183, 1189 (10th Cir. 2006)). Likewise, we have found it “generally appropriate” to 

grant Rule 23(f) petitions of class-certification denials “where the high costs of 

litigation grossly exceed an individual plaintiff’s potential damages, [and] the denial 

of class certification sounds the death knell of that plaintiff’s claims.” Id. So 

plaintiffs and defendants can both seek relief from an adverse class certification order 

under Rule 23(f). 
19 

And whatever differences may exist between permitting a plaintiff to force an 

immediate appeal of an adverse certification order versus permitting a defendant to 

do the same, balancing those differences is a “question[] of policy for Congress.” 

Baker, 137 S. Ct. at 1715 (quoting Coopers & Lybrand, 437 U.S. at 476). For now, 

Congress has chosen “the rulemaking process to settle the matter, 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 alternative existed” to dismissing their claims with 

prejudice once the district court denied their class-certification motion. Appellants’ 

Reply Br. at 8. This is untrue. They had four options—though only three created a 

path to appellate review. Their choices included: (1) “settl[ing] their individual 

claims;” (2) seeking district-court certification of the interlocutory class-certification 

order and then this court’s permission to appeal that order under 28 U.S.C. § 1292(b); 

(3) petitioning for interlocutory review of the class-certification order under Rule 

23(f); or (4) litigating on the merits to final judgment and then appealing under 28 

U.S.C. § 1291. Baker, 137 S. Ct. at 1709, 1711. They chose option one, which creates 

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 covered by statute” to 

include the Trusts’ settlement approach. Id. at 1714. Any changes must “come from 

rulemaking, . . . not judicial decisions in particular controversies or inventive 
20 

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’ settlement approach requires splitting hairs. Voluntary 

dismissal is functionally a settlement for nothing. That the Trusts managed to procure 

a price for the dismissal of their individual claims is simply a new take on the old 

voluntary-dismissal tactic. The Trusts can’t turn the district court’s class-certification 

denial, an “inherently interlocutory” order, into a final, appealable 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 otherwise would disrupt Rule 23(f)’s 

careful calibration.11

CONCLUSION 

For the reasons above, we dismiss this appeal for lack of jurisdiction. We deny the 

Trusts’ motion to certify. We grant WPX’s motion for leave to file the settlement 

agreement in support of their response to the Trusts’ motion to certify, deny WPX’s 

 11 We acknowledge that the Ninth Circuit 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 certification, the named 

plaintiffs, like the Trusts here, sought to appeal the class-certification denial as of 

right under 28 U.S.C. § 1291. 876 F.3d at 1200–01. The Ninth Circuit permitted this. 

Id. at 1201. That court distinguished Baker from Brown based on the difference 

between settling claims for consideration and voluntarily dismissing them. Id. Unlike 

the Brown court, we apply Baker’s three-drawback framework to decide our appeal. 

For us, this leads to a different outcome. 
21 

motion to file a sur-reply to the Trusts’ reply brief, and we deny the Trusts’ motion for 

leave to file a reply to WPX’s response to the Trusts’ Rule 28(j) letter.