IN THE SUPREME COURT OF IOWA

No. 15–1922

Filed February 17, 2017

Amended April 27, 2017

WELLMARK, INC. d/b/a WELLMARK BLUE CROSS AND BLUE 

SHIELD OF IOWA, an Iowa Corporation, and WELLMARK HEALTH 

PLAN OF IOWA, INC., an Iowa Corporation,

Plaintiffs,

vs.

IOWA DISTRICT COURT FOR POLK COUNTY,

Defendant. 

Certiorari to the Iowa District Court for Polk County, Arthur E. 

Gamble, Chief Judge. 

Defendant health insurer petitioned for writ of certiorari 

challenging district court rulings allowing chiropractors to proceed with 

an antitrust rule-of-reason claim after procedendo issued from decision 

affirming summary judgment dismissing this civil action with prejudice. 

WRIT SUSTAINED. 

Ryan G. Koopmans, Hayward L. Draper, and John T. Clendenin 

(until withdrawal) of Nyemaster Goode, P.C., Des Moines, for plaintiffs. 

Glenn L. Norris of Hawkins & Norris, P.C., Des Moines, Steven P. 

Wandro of Wandro & Associates, P.C., Des Moines, and Harley C. Erbe of 

Erbe Law Firm, Des Moines, for defendant. 
2

WATERMAN, Justice.

When is a case over? We have decided two prior appeals in this 

civil action: Mueller v. Wellmark, Inc., 818 N.W.2d 244, 267 (Iowa 2012) 

(reversing summary judgment in part) (Mueller I), and Mueller v. 

Wellmark, Inc., 861 N.W.2d 563, 575 (Iowa 2015) (affirming summary 

judgment dismissing the fourth amended petition) (Mueller II). After

procedendo issued in Mueller II, the plaintiffs persuaded the district court 

to proceed with an antitrust claim they had previously stipulated was not 

included in their fourth amended petition. We granted the defendant’s 

petition for a writ of certiorari and now clarify what we thought was clear 

before—that Mueller II ended this civil action. 

I. Background Facts and Proceedings. 

A. Procedural History Through Mueller II. This civil action 

commenced in December 2007 when Steven A. Mueller, a doctor of 

chiropractic, filed a breach-of-contract claim against Wellmark over a 

$17,376 billing dispute. Mueller I, 818 N.W.2d at 247–48. In May 2008, 

Mueller, joined by Bradley J. Brown, D.C.; Mark A. Kruse, D.C.; Kevin D. 

Miller, D.C.; and Larry E. Phipps, D.C., filed an amended petition 

asserting claims on behalf of a putative “class of Iowa-licensed doctors of 

chiropractic” who “have billed for services provided to patients enrolled in 

Wellmark health insurance plans.” Id. at 248. Plaintiffs alleged 

Wellmark discriminatorily fixed prices for services performed by 

chiropractors at rates lower than those paid to medical doctors and 

doctors of osteopathic medicine. Id. at 247. Their amended petition 

alleged violations of Iowa insurance regulatory statutes, the Iowa 

Competition Law (Iowa Code chapter 553), and a national class-action 

settlement. See id. at 249–50. The district court, without certifying this 
3

case as a class action, granted Wellmark’s motions to dismiss and for 

summary judgment. Id. at 250, 252. 

Plaintiffs appealed. Id. at 253. We affirmed the dismissal of claims 

brought under the insurance statutes, holding they created no private 

right to sue. Id. at 258. We also affirmed summary judgment dismissing 

claims that Wellmark breached the national settlement in Love v. 

Blue Cross Blue Shield Ass’n, No. 03–21296–CIV (S.D. Fla. Apr. 19, 

2008). Id. at 264–65. But we reversed the district court’s summary 

judgment dismissing antitrust claims against Wellmark based on the 

state-action exemption in Iowa Code section 553.6(4) (2009). Id. at 263–

64. We remanded the case for further proceedings on plaintiffs’ claims 

under the Iowa Competition Act. Id. at 264, 267. Meanwhile, plaintiffs, 

joined by other doctors of chiropractic, commenced an administrative 

action in the Iowa Insurance Division to litigate the violations of the 

insurance regulatory statutes.1 

District court proceedings resumed in this civil action after our 

remand in Mueller I. See Mueller II, 861 N.W.2d at 566. On 

December 31, 2012, Wellmark moved to dismiss or stay this civil action

pending the insurance commissioner’s decision in the related

administrative action. Wellmark argued the commissioner had primary 

jurisdiction because the regulator was better suited to analyze the 

complex antitrust allegations and effects on insurance markets. 

Wellmark contended the commissioner’s decision may “moot” or “narrow” 

the issues. Plaintiffs resisted, arguing there was no need to await the 

1The insurance commissioner ultimately decided that case in Wellmark’s favor, 

and the district court affirmed on the plaintiffs’ petition for judicial review. Abbas v. 

Iowa Ins. Div., No. CVCV048885 (Iowa Dist. Ct. for Polk Cty. June 24, 2015). Plaintiffs’ 

appeal was submitted to our court on January 18, 2017. Abbas v. Iowa Ins. Div., 

No. 15–1248 (Iowa filed Jan. 18, 2017). 

 
4

commissioner’s decision because their amended petition alleged “per se” 

violations of the Iowa Competition Act that did not require the regulator’s 

expert analysis of the Iowa health insurance market. 

Under a per se violation, an agreement is “so plainly 

anticompetitive that no elaborate study of the industry is needed to 

establish . . . illegality.” Id. at 568 (quoting Texaco Inc. v. Dagher, 547 

U.S. 1, 5, 126 S. Ct. 1276, 1279, 164 L. Ed. 2d 1, 7 (2006)). By contrast, 

a rule-of-reason claim “requires plaintiffs to demonstrate that a 

particular arrangement ‘is in fact unreasonable and anticompetitive 

before it will be found unlawful.’ ” Id. (quoting Dagher, 547 U.S. at 5, 

126 S. Ct. at 1279, 164 L. Ed. 2d at 7). In a rule-of-reason analysis, 

the finder of fact must decide whether the questioned 

practice imposes an unreasonable restraint on competition, 

taking into account a variety of factors, including specific 

information about the relevant business, its condition before 

and after the restraint was imposed, and the restraint’s 

history, nature, and effect [on the market.] 

State Oil Co. v. Khan, 522 U.S. 3, 10, 118 S. Ct. 275, 279, 139 L. Ed. 2d 

199, 206 (1997). Plaintiffs specifically argued that because their 

amended petition alleged per se violations, the commissioner was not 

better suited to resolve the dispute. 

Wellmark responded by inviting plaintiffs to stipulate that their 

pleadings included no rule-of-reason claim:

If Plaintiffs will indeed stipulate that their case be strictly 

limited to a claim of per se price fixing, that might indeed 

moot out this motion and we could go right to summary 

judgment. But the allegations contained in Plaintiffs’ Fourth 

Amended and Substituted Petition . . . are not so limited, 

and that’s the pleading now before this Court . . . .

Wellmark sought a stipulation stating,

a. Plaintiffs hereby dismiss, with prejudice, all claims 

except any price-fixing claims that rise to a per se violation of 

the Iowa Competition Act; and
5

b. Wellmark, in turn, withdraws its pending motion to 

dismiss or stay. 

At the hearing on Wellmark’s motion, the district court expressed an

inclination to stay the proceedings. Plaintiffs rejected Wellmark’s 

proposed stipulation but, to avoid the stay, agreed to limit their petition 

to per se violations. They stipulated accordingly,

Pursuant to discussions with the Court and Defendants’ 

counsel during the telephone hearing held on February 22, 

2013, on Defendant[s’] Motion to Dismiss or Stay and 

Defendants’ Supplement to Motion to Dismiss, Plaintiffs 

hereby agree and stipulate that the only violation[s] of Iowa 

Code § 553.4 alleged in the Fourth Amended and 

Substituted Petition for Damages . . . constitute per se 

violations of the Iowa Competition Act. Plaintiffs’ allegations 

exclude a contention that a rule of reason analysis is 

applicable to the violation of Iowa Code § 553.4 alleged in the 

Fourth Amended and Substituted Petition. 

(Emphasis added.) No party asked the court to notify putative class 

members of this stipulation. No class had been certified, and no motion 

for class certification had been filed. On March 4, the district court 

noted that based on plaintiffs’ stipulation, “Defendants have advised the 

Court . . . the motions to dismiss or stay do not need a ruling” and “the 

Court considers the motions withdrawn without prejudice.” 

Wellmark moved for summary judgment on plaintiffs’ “remaining 

claims.” Plaintiffs resisted based in part on rule-of-reason arguments. 

At the hearing on the motion for summary judgment, the district court 

sought clarification whether the rule-of-reason claim was in or out of this 

case:

THE COURT: Mr. Norris, the one thing I wanted to ask 

you about is: In your resistance you’ve got a fairly long 

section that talks about rule of reason. I don’t understand 

that with the stipulation. 

MR. NORRIS: All right. I was talking about the idea 

that this disposes of the entire case. All I was showing is 

that we could establish the elements of a rule of reason. 
6

THE COURT: But you stipulated that this is not a rule 

of reason case. 

MR. NORRIS: Well, but I can certainly ask to amend. 

THE COURT: Well, I don’t think you can after your 

stipulation. That was the whole point of the stipulation and 

why we didn’t rule on the motion to dismiss. 

. . . . 

MR. NORRIS: By the stipulation I made was that we 

believed that what we were talking about was a per se 

violation of the antitrust laws. 

THE COURT: And that’s the only claim that I have at 

this point. 

MR. NORRIS: Well, yeah. 

Plaintiffs did not move to amend the petition, and no other party moved 

to intervene. 

On November 5, the district court ruled that Wellmark committed 

no per se violation of the antitrust laws. The order concluded, “[T]he 

defendants’ Motion for Summary Judgement is GRANTED.” The order 

further provided,

While the plaintiffs stipulated they are not asserting the rule 

of reason here, they argue Wellmark’s price-fixing violates 

the Iowa Competition Law under a rule of reason analysis. 

Because the plaintiffs stipulated Wellmark only committed a 

per se antitrust violation, this Court does not consider the 

rule of reason here. This court offers no opinion on any 

potential future claim that Wellmark’s actions violate Iowa 

Competition Law under a rule of reason analysis. 

Plaintiffs filed a notice of appeal “on behalf of themselves and those like 

situated . . . from the final order entered in this case on November 5, 

2013 and from all adverse rulings and orders therein.” 

We unanimously affirmed the district court’s ruling granting 

summary judgment. Mueller II, 861 N.W.2d at 575. We carefully limited

the breadth of our holding for purposes of stare decisis:

We are not today foreclosing a rule of reason claim 

against Wellmark if it were shown that the anticompetitive 

consequences of its practices exceeded their procompetitive 
7

benefits. We simply uphold the district court’s ruling that 

Wellmark’s arrangements with self-insured employers and 

out-of-state BCBS licensees are not subject to the per se 

rule. Because the plaintiffs by stipulation limited themselves 

to a per se claim, we affirm the district court’s grant of 

summary judgment. 

Id. at 574–75 (footnote omitted). We meant that we were not foreclosing 

such a rule-of-reason claim by other plaintiffs in a new lawsuit.2 We did 

not remand this civil action for any purpose. Procedendo issued on 

April 22, 2015. 

B. Procedural History After Mueller II. On June 19, plaintiffs 

asked the district court to set a “pretrial scheduling conference to 

establish” whether “additional Iowa chiropractors who are or would be 

members of the proposed class . . . can or should be added” and “a 

schedule for determining Plaintiff’s Motion for Leave to File a Fifth 

Amended and Substituted Petition for Damages.” Wellmark resisted, 

asserting the summary judgment affirmed by our court “was the end of 

the case.” Wellmark argued, “Just as a plaintiff could not amend their 

pleading after a jury found against them and the Iowa Supreme Court 

affirmed that judgment, plaintiffs cannot file an amended complaint after 

the grant and affirmance of summary judgment.” On November 6, the 

district court, with a different judge presiding, granted plaintiffs’ request 

for a scheduling conference, ruling that “this case is not over.” The 

district court stated,

Both the district court’s summary judgment and the 

Supreme Court’s opinion preserved the plaintiffs’ rule-of2On October 5, 2015, another civil action was filed by these plaintiffs together 

with other Iowa chiropractors alleging rule-of-reason antitrust claims against Wellmark. 

Chicoine v. Wellmark, Inc., No. CVCV050638 (Iowa Dist. Ct. for Polk Cty. filed Oct. 5, 

2015). The district court stayed that case based on overlapping claims in pending 

federal multidistrict litigation, and the plaintiffs’ appeal of that stay (No. 16–0364) was 

submitted to our court on January 19, 2017. 

 
8

reason claim. Neither court ordered that plaintiffs’ rule-ofreason claim could not be filed as an amendment to their 

petition in this class action lawsuit. Neither court ordered

that plaintiffs’ rule-of-reason claim had to be filed in a new 

action with a lookback period under the statute of 

limitations. The district court’s summary judgment, which 

was affirmed by the Supreme Court, simply stated the Court 

offers no opinion on any potential future claim under the 

rule-of-reason analysis. 

The district court opined plaintiffs had not “dismissed” their rule-ofreason analysis, they had 

deferred filing their rule-of-reason claim due to the pendency 

of a contested case proceeding before the Insurance 

Commissioner. Plaintiffs merely stipulated that their Fourth 

Amended Petition only stated a per se claim so that the case 

could move forward. 

The district court found both that plaintiffs’ stipulation was not binding 

on the class and that the district court had not followed the class-action 

rules governing dismissals. This civil action, however, had never been 

certified as a class action. 

On November 16, Wellmark filed a petition for a writ of certiorari. 

Meanwhile, the district court issued an order requiring plaintiffs to 

“immediately file their Motion for Leave to File a Fifth Amended and 

Substituted petition for damages.” On December 9, plaintiffs filed their

motion for leave to file the fifth amended petition. The same day, we 

granted certiorari and stayed further proceedings at the district court. 

II. Standard of Review. 

Under a writ of certiorari, we review a district court’s order for 

correction of errors at law. State Pub. Def. v. Iowa Dist. Ct., 886 N.W.2d 

595, 598 (Iowa 2016). A writ of certiorari lies when a lower court “has 

exceeded its jurisdiction or otherwise has acted illegally.” Id. (quoting 

State Pub. Def. v. Iowa Dist. Ct., 747 N.W.2d 218, 220 (Iowa 2008)). 

“Illegality exists when the court’s findings lack substantial evidentiary 
9

support, or when the court has not properly applied the law.” Id. 

(quoting State Pub. Def., 747 N.W. 2d at 220). 

III. Analysis. 

We must decide whether the district court’s summary judgment,

and our subsequent decision affirming that judgment, ended this civil 

action such that a rule-of-reason claim against Wellmark can only be

pursued in a separate lawsuit. These chiropractors argue, and the 

district court agreed, that a rule-of-reason analysis survived summary 

judgment and may now be litigated in this action. They point to 

language in the summary judgment ruling and Mueller II disclaiming 

adjudication of a rule-of-reason claim and rely on restrictions for 

dismissing a class action without notice to putative class members. See 

Iowa R. Civ. P. 1.271. We hold no precertification notice to putative class 

members was required for plaintiffs to stipulate that their fourth 

amended petition omitted a rule-of-reason claim, and the summary 

judgment affirmed on appeal ended this civil action. Accordingly, the 

district court erred by allowing this case to proceed. 

A basic rule of finality is dispositive here: “In the absence of a 

remand or procedendo directing further proceedings in the trial court, 

the jurisdiction of the district court terminates both as to the parties and 

the subject matter when a district court judgment has been affirmed.” 

Franzen v. Deere & Co., 409 N.W.2d 672, 674 (Iowa 1987). Eligius 

Franzen filed a product-liability action against Deere & Company for

personal injuries he suffered while using a forage wagon it 

manufactured. Id. at 673. The district court granted Deere’s motion to 

dismiss based on the statute of limitations. Id. We reversed and 

remanded the case to allow the Franzens to litigate the discovery rule 

exception. Id. Following remand and discovery, the district court 
10

granted Deere’s motion for summary judgment, and we affirmed. Id. 

More than a month later, Deere filed an application for attorney fees. Id. 

In the third appeal, we concluded the district court was “without 

authority to consider the application, because it lost jurisdiction of this 

particular case once the final judgment had been affirmed without 

remand in Franzen [v. Deere & Co., 377 N.W.2d 660 (Iowa 1985)].” Id. 

We explained, 

Ordinarily the authority of the district court to decide 

substantive issues in a particular case terminates when a 

final judgment is entered and postjudgment motions have 

been resolved. A final judgment, one that conclusively 

determines the rights of the parties and finally decides the 

controversy, creates a right of appeal and also removes from 

the district court the power or authority to return the parties 

to their original positions. 

Id. at 674. 

Although the district court “retains jurisdiction during and after 

appeal from its final judgment to enforce the judgment itself,” it “does not 

have the authority to revisit and decide differently issues already 

concluded by that judgment.” Id.; see also Reis v. Iowa Dist. Ct., 787 

N.W.2d 61, 66 (Iowa 2010) (noting the general rule that “a district court’s 

jurisdiction ends with dismissal of the pending case” except to enforce 

orders remaining in effect); Shedlock v. Iowa Dist. Ct., 534 N.W.2d 656, 

658 (Iowa 1995) (“[O]ur rules of appellate procedure provide for 

restoration of jurisdiction to the district court in only two circumstances: 

upon the . . . dismissal [of the appeal] or upon the appellate court’s order 

for limited remand.”); Hearity v. Bd. of Supervisors, 437 N.W.2d 907, 

908–09 (1989) (“[O]nce an appellate court had rendered its decision and 

docketed its mandate affirming the district court’s judgment the district 

court is without jurisdiction to consider motions for sanctions . . . .”);

Dunton v. McCook, 120 Iowa 444, 447, 94 N.W. 942, 943 (1903) 
11

(“[Judgment] was affirmed in this court . . . , and petition for rehearing 

denied . . . . That ended the suit. Thereafter it was pending in neither 

court.”). As we have long recognized, this rule of finality avoids endless 

litigation:

The judgment of the lower court had been entered of record, 

and, when affirmed, was in full force and effect, without 

further action thereon. Not a thing remained for the trial 

court to do; nor was he directed to take further action in the 

matter. The original action was, therefore, at an end, so far, 

at least, as the district court was concerned, and the 

defendants had no right to then file a cross petition. If the 

position contended for by appellants were tenable, there 

would be no end to a cause of action. If a cross petition may 

be filed and new parties brought in one week after final 

determination by decree, it might, under some 

circumstances, be permitted one, two, or three years 

thereafter. 

Steel v. Long, 84 N.W. 677, 678 (Iowa 1900) (emphasis added). 

In Mueller II, we affirmed the district court’s summary judgment

without any remand. 861 N.W.2d at 575. That summary judgment 

dismissed plaintiffs’ fourth amended petition with prejudice. See id.

After procedendo issued, the district court lacked the power to consider 

plaintiffs’ motion to set a pretrial conference or to allow the fifth amended 

petition. Our statement in Mueller II declining to foreclose the possibility 

of a rule-of-reason claim merely defined the breadth of our holding for 

purposes of stare decisis as to claims filed by different plaintiffs in a 

separate lawsuit. See id. at 574–75. Neither the district court nor our 

court effectively reserved the rule-of-reason analysis for further litigation 

by these plaintiffs within this civil action. 

Our class-action rules do not permit these chiropractors to evade 

the finality of the summary judgment in Mueller II. This civil action was 

filed as a putative class action but had not been certified. See Iowa R. 

Civ. P. 1.262(1) (directing court to “determine whether or not the action 
12

is to be maintained as a class action and by order certify or refuse to 

certify it as a class action”). It is well-settled that a summary judgment 

dismissing the claims of the named plaintiffs terminates the civil action 

and renders moot the question whether to certify the case as a class 

action. See Barnhill v. Iowa Dist. Ct., 765 N.W.2d 267, 278 n.5 (Iowa 

2009) (noting that if the district court had entered summary judgment 

“before class certification proceedings,” the defendants “would have been 

out of th[e] case before [incurring] the cost of the class certification 

proceedings”); Neb. Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345 

N.W.2d 124, 130–31 (Iowa 1984) (affirming summary judgment on claims 

by named plaintiffs without class certification); see also William B. 

Rubenstein, Newberg on Class Actions § 7:10 (5th ed.), Westlaw 

(database updated Dec. 2016) (“If the defendant prevails on the summary 

judgment motion, in most circumstances, the court will be relieved of the 

need to rule on the issue of class certification.”); cf. Hammond v. Fla. 

Asset Fin. Corp., 695 N.W.2d 1, 8 (Iowa 2005) (affirming dismissal of

defendant for lack of personal jurisdiction and rejecting named plaintiffs’ 

argument jurisdiction was supported by claims of putative class 

members, noting “there has been no determination that a class exists or 

that the action may proceed as a class action”).3 

3Because of similarities between the Iowa and federal class-action rules, we may 

look to federal decisions for guidance. See Lucas v. Pioneer, Inc., 256 N.W.2d 167, 172 

(Iowa 1977). It is well established under federal law that the district court may grant a 

dispositive motion against the named plaintiffs without deciding class certification. See,

e.g., J & R Mktg., SEP v. Gen. Motors Corp., 549 F.3d 384, 390 (6th Cir. 2008) (“If it is 

found, prior to class certification, that the named plaintiffs’ individual claims are 

without merit, then dismissal is proper.”); Greenlee County v. United States, 487 F.3d 

871, 880 (Fed. Cir. 2007) (“[W]e have repeatedly found on appeal that issues related to 

class certification were moot in light of our resolution against the plaintiff of a motion to 

dismiss or for summary judgment.”); McNulty v. Fed. Hous. Fin. Agency, 954 

F. Supp. 2d 294, 303 (M.D. Pa. 2013) (“The court’s finding that the plaintiff’s complaint 

fails to state a claim upon which [relief] can be granted . . . effectively moots the 

 
13

Because no class had been certified, Wellmark acknowledges

putative class members in this civil action are not bound by the 

summary judgment under principles of res judicata. See Neb. 

Innkeepers, Inc., 345 N.W.2d at 130–31 (“Our holding, however, only 

applies to the named plaintiffs because the record does not show the 

court had yet certified this as a class action . . . .”).4

Plaintiffs, represented by experienced counsel, stipulated they were 

only pursuing a per se action. “Stipulations must be binding.” Standard 

Fire Ins. Co. v. Knowles, 568 U.S. ___, ___, 133 S. Ct. 1345, 1348, 185 

L. Ed. 2d 439, 443 (2013).5 A named plaintiff’s stipulation made before 

class certification, however, does not “speak for those he purports to 

question of whether to certify the action as a class action.”); Coal. to Defend Affirmative 

Action v. Regents of Univ. of Mich., 539 F. Supp. 2d 960, 974 (E.D. Mich. 2008) (stating 

summary judgment had effect of mooting class certification), rev’d on other grounds 

sub nom. Schuette v. Coal. to Defend Affirmative Action, 572 U.S. ___, 134 S. Ct. 1623, 

188 L. Ed. 2d 613 (2014. 

4See also Schwarzschild v. Tse, 69 F.3d 293, 297 (9th Cir. 1995) (holding that 

when defendants moved for summary judgment prior to certification, they “waived their 

right to have [class] notice given and to obtain a judgment that was binding upon the 

class”); Postow v. OBA Fed. Sav. & Loan Ass’n, 627 F.2d 1370, 1382 (D.C. Cir. 1980) 

(noting when defendants move for summary judgment prior to certification they 

“assume the risk that a judgment in their favor will not protect them from subsequent 

suits by other potential class members” (quoting Haas v. Pittsburgh Nat’l Bank, 381 

F. Supp. 801, 806 (W.D. Pa. 1974), aff’d in part and rev’d in part, 526 F.2d 1083 (3d 

Cir. 1975)). 

5Plaintiffs’ stipulation that their pleadings included no rule-of-reason claim had 

its intended effect of inducing Wellmark to withdraw its motion to stay, thereby allowing 

plaintiffs to avoid a possible stay order. We will not second-guess that strategic 

decision by experienced lawyers. But it would be unfair to allow plaintiffs to retract 

their stipulation after they got what they wanted from it. And it would prejudice 

Wellmark to allow plaintiffs to prolong this case by belatedly adding the rule-of-reason 

claim they stipulated out of the case. We have applied the doctrine of judicial estoppel 

to prevent a party from taking inconsistent positions in litigation. See Winnebago 

Indus., Inc. v. Haverly, 727 N.W.2d 567, 573–75 (Iowa 2006) (concluding employer 

estopped from denying liability in workers’ compensation claim when it admitted 

liability in a prior proceeding to control the care provided); Wilson v. Liberty Mut. Grp., 

666 N.W.2d 163, 167 (Iowa 2003) (employee who alleged “a bona fide dispute” to obtain 

approval of workers’ compensation claim was estopped from pursing bad-faith claim 

against insurer). 

___________________________
14

represent.” Id. at ___, 133 S. Ct. at 1349, 185 L. Ed. 2d at 444. In 

Knowles, the named plaintiff, to keep his claim in state court by avoiding 

federal subject matter jurisdiction under the Class Action Fairness Act, 

stipulated before class certification that he, and the class he sought to 

represent, would not seek aggregate damages exceeding $5 million. Id. at 

___, 133 S. Ct. at 1347, 185 L. Ed. 2d at 442. The Court concluded his 

stipulation did not bind putative class members because “a plaintiff who 

files a proposed class action cannot legally bind members of the proposed 

class before the class is certified.” Id. at ___, 133 S. Ct. at 1349, 185 

L. Ed. 2d at 444; see also Smith v. Bayer Corp., 564 U.S. 299, 315, 131 

S. Ct. 2368, 2380, 180 L. Ed. 2d 341, 354 (2011) (“Neither a proposed 

class action nor a rejected class action may bind nonparties.”). A 

“nonnamed class member is [not] a party to the class-action litigation 

before the class is certified.” Smith, 564 U.S. at 313, 131 S. Ct. at 2379, 

180 L. Ed. 2d at 353 (emphasis added). The Knowles Court held, 

“Because his precertification stipulation does not bind anyone but 

himself, Knowles has not reduced the value of the putative class 

members’ claims.” Knowles, 568 U.S. at ___, 133 S. Ct. at 1349, 185 

L. Ed. 2d at 444 (emphasis added). 

Similarly, the precertification stipulation by the named-plaintiff 

chiropractors withdrawing their rule-of-reason claim did not bind anyone 

but themselves. See id. The district court properly relied on the 

stipulation in granting summary judgment dismissing the named 

plaintiffs’ civil action. The stipulation was not binding on putative class 

members who could and did file a separate lawsuit to pursue a rule-ofreason claim. 
15

We conclude the district court could properly enter summary 

judgment without notifying putative class members. Our governing rule 

provides,

1.271(1) Unless certification has been refused under 

rule 1.262, a class action, without the approval of the court 

after hearing, may not be:

a. Dismissed voluntarily.

b. Dismissed involuntarily without an adjudication on 

the merits. 

c. Compromised.

1.271(2) If the court has certified the action under 

rule 1.262, notice of hearing on the proposed dismissal or 

compromise shall be given to all members of the class in a 

manner the court directs. If the court has not ruled on 

certification, notice of hearing on the proposed dismissal or 

compromise may be ordered by the court which shall specify 

the persons to be notified and the manner in which notice is 

to be given. 

Iowa R. Civ. P. 1.271(1)–(2) (emphasis added). Rule 1.271(2) makes clear 

that precertification notice was not required here—rather, the court 

“may” give notice. Id. The word “may” is permissive when juxtaposed 

with the directory word “shall” in the immediately preceding sentence.

See State v. Klawonn, 609 N.W.2d 515, 521 (Iowa 2000) (stating “may” 

can be interpreted as “shall” only when context evinces that intent). 

Under the circumstances of this case, we hold that the district court had 

no obligation to notify putative class members of the pending motion for 

summary judgment or the named plaintiffs’ stipulation abandoning a 

rule-of-reason claim. Neither due process nor rule 1.271(2) required

notice to other chiropractors who are not bound by the summary 

judgment. The district court erred in concluding otherwise.6 

6Our conclusion is consistent with federal class-action law. “Federal rule of civil 

procedure 23(e) concerning approval of class action settlements is somewhat analogous 

to Iowa rule of civil procedure [1.271].” City of Dubuque v. Iowa Trust, 587 N.W.2d 216, 

 
16

This case is over. Litigation between Iowa chiropractors and 

Wellmark continues in other civil actions. We express no opinion on the 

merits of the other cases. 

221 (Iowa 1998). We have looked to federal authority for guidance in the dismissal and 

settlement of certified class actions. Id. at 220, 222 (approving settlement of certified 

class action). Federal rule 23(e) was amended in 2003 to limit mandatory notice of 

dismissals to certified class actions: 

(e) Settlement, Voluntary Dismissal, or Compromise. The 

claims, issues, or defenses of a certified class may be settled, voluntarily 

dismissed, or compromised only with the court’s approval. The following 

procedures apply to a proposed settlement, voluntary dismissal, or 

compromise: 

(1) The court must direct notice in a reasonable manner 

to all class members who would be bound by the proposal. 

Fed. R. Civ. P. 23(e)(1) (emphasis added). As the drafters explained, the purpose of the 

2003 amendment was to remove the requirement of precertification notice to putative 

class members: 

Rule 23(e)(1)(A) resolves the ambiguity in former Rule 23(e)’s 

reference to dismissal or compromise of “a class action.” That language 

could be—and at times was—read to require court approval of 

settlements with putative class representatives that resolved only 

individual claims. See Manual for Complex Litigation Third, § 30.41. 

The new rule requires approval only if the claims, issues, or defenses of a 

certified class are resolved by a settlement, voluntary dismissal, or 

compromise. 

Fed. R. Civ. P. 23(e)(1) advisory committee’s note to 2003 amendments. Some federal 

courts have continued to favor notifying putative class members of proposed dismissals 

without class certification under circumstances not presented here. “Case law 

addressing pre-certification notice generally takes a flexible approach framed by two 

guiding principles: (1) the lack of collusion or bad faith, and (2) the existence of any 

reasonable reliance [of] putative class members.” Griffith v. Javitch, Block & Rathbone, 

LLP, 241 F.R.D. 600, 602 (S.D. Ohio 2007); see also In re Conagra Foods, Inc., 

CV 11–05379 MMM (AGRx), 2014 WL 12579572, at *6 (C.D. Cal. 2014) (allowing 

voluntary dismissal without notice to putative class members and stating, “[a]bsent any 

indication that these plaintiffs actually appended class allegations in an attempt to get 

favorable individual settlements, there is no reason to require notice . . . as a deterrent 

to hypothetical abusive plaintiffs” (emphasis omitted) (quoting Diaz v. Trust Territory of 

Pac. Islands, 876 F.2d 1401, 1408 (9th Cir. 1989))). Plaintiffs’ counsel vigorously 

litigated this case without any settlement or hint of collusion with Wellmark. And any 

concern that putative class members relied on this civil action is ameliorated by the fact 

the same plaintiffs’ counsel have already filed Chicoine, another pending putative class 

action of Iowa chiropractors asserting rule-of-reason claims against Wellmark. See

Iowa R. Civ. P. 1.277 (“The statute of limitations is tolled for all class members upon the 

commencement of an action asserting a class action.”). Any dispute over tolling or res 

judicata would be addressed in that case. 

___________________________
17

IV. Disposition. 

For the reasons explained above, the district court had no power to 

proceed with a rule-of-reason claim after procedendo issued in Mueller II.

This civil action between the named parties had ended. Accordingly, we 

sustain the writ of certiorari. 

WRIT SUSTAINED. 

All justices concur except Appel, J., who takes no part.