IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30095

IN RE: DEEPWATER HORIZON — APPEALS OF THE ECONOMIC AND 

PROPERTY DAMAGE CLASS ACTION SETTLEMENT

Appeals from the United States District Court

for the Eastern District of Louisiana

Before DAVIS, GARZA, and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

This is an interlocutory appeal from the district court’s order certifying 

a class action and approving a settlement under Rule 23 of the Federal Rules 

of Civil Procedure.1 The ongoing litigation before the district court 

encompasses claims against British Petroleum Exploration & Production, Inc. 

(“BP”) and numerous other entities. All these claims are related to the 2010 

explosion aboard the Deepwater Horizon, an offshore drilling rig, and the 

consequent discharge of oil into the Gulf of Mexico.

Several of the original appellants in this case have moved to dismiss 

their appeals voluntarily, and we have granted those motions. We accordingly 

do not consider the arguments unique to those appellants. The three groups 

of appellants remaining before us—the “Allpar Objectors,” the “Cobb 

Objectors,” and the “BCA Objectors”—all filed objections with the district court

opposing class certification and settlement approval based on various 

1 See In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, on April 20, 2010, 

910 F. Supp. 2d 891 (E.D. La. 2012).

United States Court of Appeals

Fifth Circuit

FILED

January 10, 2014

Lyle W. Cayce

Clerk

 

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provisions of Rule 23. The Objectors’ arguments were each addressed and 

rejected by the district court in its order of December 21, 2012. The Objectors 

have now appealed the district court’s order and ask this court to remand with 

instructions to decertify the class and withdraw approval from the Settlement

Agreement.

BP also now asks this court to vacate the district court’s order, although 

BP is not formally an appellant and, in fact, BP originally supported both class 

certification and settlement approval before the district court. In addition to 

its own set of new arguments under Rule 23, BP also raises additional 

arguments regarding the Article III standing of certain class members to make 

claims under the Settlement Agreement. Unlike the Objectors, however, BP 

argues that the Settlement Agreement can be salvaged if “properly construed 

and implemented.” In BP’s view, all of the problems that invalidate the class 

settlement under Article III and Rule 23 result from two Policy 

Announcements issued by the Claims Administrator, Patrick Juneau, who was

appointed under the Settlement Agreement by the district court.

As set forth below, we cannot agree with the arguments raised by the 

Objectors or BP. The district court was correct to conclude that the applicable 

requirements of Rule 23 are satisfied in this case. Additionally, whether or not 

BP’s arguments regarding Exhibits 4B and 4C are correct as a matter of 

contract interpretation, neither class certification nor settlement approval are 

contrary to Article III in this case. Accordingly, the district court’s order is 

affirmed.

I.

The factual background of this case is described in more extensive detail

in the district court’s opinion, In re Oil Spill by Oil Rig Deepwater Horizon in 

Gulf of Mexico, on April 20, 2010, 910 F. Supp. 2d 891 (E.D. La. 2012), and in 

a previous decision by a different panel of this court, In re Deepwater Horizon, 

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732 F.3d 326 (5th Cir. 2013) (“Deepwater Horizon I”). As explained in 

Deepwater Horizon I, BP leased the Deepwater Horizon drilling vessel to drill 

its Macondo prospect off the Louisiana coast. On April 20, 2010, an exploratory 

well associated with the drilling vessel blew out. After the initial explosion 

and during the ensuing fire, the vessel sank, causing millions of barrels of oil 

to spill into the Gulf of Mexico. Numerous lawsuits were filed against a variety 

of entities, and many of these lawsuits were transferred by the Judicial Panel 

on Multidistrict Litigation to the United States District Court for the Eastern 

District of Louisiana pursuant to 28 U.S.C. § 1407.

To satisfy its obligations under the Oil Pollution Act (“OPA”), BP initially 

established its own claims process and later funded the claims process 

administered by the Gulf Coast Claims Facility (“GCCF”) in order to begin 

paying out claims immediately rather than at the conclusion of litigation. BP 

then began negotiating a class settlement in February 2011 and jointly worked 

with the Plaintiffs’ Steering Committee (“PSC”) to transfer claims from the 

GCCF to a program supervised directly by the district court.

On April 16, 2012, the PSC filed an Amended Class Action Complaint 

and a proposed Settlement Agreement for the district court’s preliminary 

approval. In accordance with the terms of the Settlement Agreement, the 

district court appointed Patrick Juneau as Claims Administrator of the 

settlement program. Although the Settlement Agreement had not yet received

the district court’s final approval under Rule 23 of the Federal Rules of Civil 

Procedure, the Claims Administrator began reviewing claims left unresolved 

by the GCCF and processing new claims in June 2012 as provided for in Section

4 of the parties’ Settlement Agreement, entitled “Implementation of the 

Settlement.”

On August 13, 2012, after a preliminary hearing and the distribution of 

notifications to the absent members of the proposed class, BP and the PSC

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moved for final approval of the Settlement Agreement and certification of the 

class defined at paragraph 306 of the Amended Class Action Complaint. The 

Allpar Objectors, Cobb Objectors, and BCA Objectors all filed objections with 

the district court opposing class certification and settlement approval based on 

various provisions of Rule 23. After conducting a fairness hearing on 

November 8, 2012, to consider the views of these Objectors and numerous 

others in accordance with Rule 23(e), the district court issued a final order 

certifying the class and approving the parties’ Settlement Agreement on 

December 21, 2012. The district court emphasized in particular that the 

“uncapped compensation” available under the Settlement Agreement would 

“ensure that a benefit paid to one member of the class will in no way reduce or 

interfere with a benefit obtained by another member.”2 The Objectors 

appealed. 

BP supported the Settlement Agreement during the proceedings leading 

up to and including the district court’s order of December 21, 2012. BP now 

argues that two Policy Announcements issued by the Claims Administrator 

regarding the interpretation and application of the Settlement Agreement—

both of which were adopted in orders by the district court—have subsequently 

brought the Settlement Agreement into violation of Rule 23, the Rules 

Enabling Act, and Article III of the U.S. Constitution.

One of these two Policy Announcements by the Claims Administrator

addresses the interpretation and application of the Settlement Agreement’s 

Exhibit 4C, entitled “Compensation Framework for Business Economic Loss 

Claims.” The Policy Announcement was endorsed on March 5, 2013, by the 

district court in an order that became the subject of the appeal heard by Judges 

Dennis, Clement, and Southwick in Deepwater Horizon I. The Settlement 

2 Id. at 918.

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Agreement’s Exhibit 4C establishes a formula for measuring the payments 

made to class members as compensation for business-related economic loss. 

The text of Exhibit 4C, however, does not explicitly identify the accounting 

methodology that the Claims Administrator should apply when interpreting 

this payment formula. BP argued before the other panel that the Claims 

Administrator’s interpretation of Exhibit 4C fails to reflect the parties’ intent

to apply the accrual method of accounting, rather than the cash method, when 

evaluating the financial records of all prospective claimants. The PSC 

disagreed and argued that the cash method of accounting could also be used by 

the Claims Administrator if a prospective claimant ordinarily used the cash 

method in its own business accounting and bookkeeping.

After considering the parties’ arguments, a majority of the panel in 

Deepwater Horizon I remanded the case for further proceedings to reexamine

the contractual interpretation questions arising under Exhibit 4C.3 The 

district court issued an additional ruling on December 24, 2013,4 which BP has 

appealed once again.5

The second Policy Announcement by the Claims Administrator 

addresses the interpretation and application of Exhibit 4B of the Settlement 

Agreement, entitled “Causation Requirements for Businesses [sic] Economic 

Loss Claims.” Whereas the Settlement Agreement’s Exhibit 4C established a 

formula for the measurement of economic loss, Exhibit 4B set forth criteria for 

prospective claimants to demonstrate to the Claims Administrator that their 

losses were caused by the Deepwater Horizon oil spill. In the Policy 

Announcement, the Claims Administrator explained:

3 Deepwater Horizon I, 732 F.3d at 346.

4 Order of December 24, 2013 (Rec. Doc. 12055) (“Responding to Remand of Business 

Economic Loss Issues”). 5 BP’s Notice of Appeal (Rec. Doc. 12066).

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The Settlement Agreement does not contemplate that 

the Claims Administrator will undertake additional 

analysis of causation issues beyond those criteria that 

are specifically set out in the Settlement Agreement. 

Both Class Counsel and BP have in response to the 

Claims Administrator’s inquiry confirmed that this is 

in fact a correct statement of their intent and of the 

terms of the Settlement Agreement. The Claims 

Administrator will thus compensate eligible Business 

Economic Loss and Individual Economic Loss 

claimants for all losses payable under the terms of the 

Economic Loss frameworks in the Settlement 

Agreement, without regard to whether such losses 

resulted or may have resulted from a cause other than 

the Deepwater Horizon oil spill provided such 

claimants have satisfied the specific causation

requirements set out in the Settlement Agreement.6

The record reflects that no party ever formally objected to this second Policy 

Announcement, and the district court adopted this Policy Announcement in an 

order docketed on April 9, 2013. That order was never independently appealed 

to this court. In the initial brief that BP filed in this appeal on August 30, 

2013, BP took “no position on the relevance vel non” of the second Policy 

Announcement with respect to the lawfulness of class certification and 

settlement approval in this case.

BP also has never suggested that the Claims Administrator was 

incorrect to state that “[b]oth Class Counsel and BP have . . . confirmed that 

[the second Policy Announcement] is in fact a correct statement of their intent

and of the terms of the Settlement Agreement.” In fact, the record contains an 

e-mail message from Judge Barbier to a number of participants in this 

litigation documenting a “discussion” on December 12, 2012, during which it 

6 See Declaration of Andrew T. Karron, Ex. 19-R, at 2 (Rec. Doc. 8963-71).

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was confirmed that “Counsel for BP and the PSC agree with the Claims 

Administrator’s objective analysis of causation with respect to his evaluation 

of economic damage claims,” as set forth in the second Policy Announcement.7 

The record reflects no declared objection or disagreement with the district 

court’s e-mail. This e-mail was later cited in the district court’s order adopting 

the Policy Announcement on April 9, 2013.

In the supplemental brief that BP filed in this appeal on October 11, 

2013, however, BP argued that the lawfulness of the Settlement Agreement 

was equally threatened by both Policy Announcements’ effects on the 

interpretation and application of Exhibits 4B and 4C. According to BP, both 

of these Policy Announcements by the Claims Administrator permit claimants 

without any actual injuries caused by the oil spill to participate in the class 

settlement and receive payments. According to BP, this result brings the class 

settlement into violation of Rule 23, the Rules Enabling Act, and Article III.

II.

Before we reach the questions regarding class certification and 

settlement approval under Rule 23, we must resolve the Article III question as 

a threshold matter of jurisdiction.8 Questions of law relating to constitutional

standing are reviewed de novo.9 “Facts expressly or impliedly found by the 

district court in the course of determining jurisdiction are reviewed for clear 

error.”10 “An appellate court may not consider new evidence furnished for the 

first time on appeal and may not consider facts which were not before the 

7 See id., Ex. 19-V (Rec. Doc. 8963-75).

8 Rivera v. Wyeth–Ayerst Labs., 283 F.3d 315, 319 (5th Cir. 2002).

9 Bonds v. Tandy, 457 F.3d 409, 411 (5th Cir. 2006).

10 Cole v. Gen. Motors Corp., 484 F.3d 717, 721 (5th Cir. 2007).

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district court at the time of the challenged ruling.”11

The abuse-of-discretion standard governs this court’s review of both the 

district court’s certification of the class and its approval of the settlement under 

Rule 23.12 This court exercises de novo review as to whether the district court 

applied the correct legal standard.13 Importantly, “Rule 23 grants courts no 

license to engage in free-ranging merits inquiries at the certification stage. 

Merits questions may be considered to the extent—but only to the extent—that 

they are relevant to determining whether the Rule 23 prerequisites for class 

certification are satisfied.”14

III.

As explained in its supplemental brief, the crux of BP’s standing 

argument is that Article III “preclude[s] certification of a settlement class that 

includes members that have suffered no injury” or “who suffered no harm 

caused by the Deepwater Horizon incident.” In BP’s view, because an 

unidentified number of such individuals have received and may continue to 

receive payments under the class settlement, Article III requires this court to 

reverse the district court’s order of December 21, 2012.

In two respects, BP is correct. First, the elements of Article III standing 

do indeed include both an injury in fact and a causal connection to the 

defendant’s conduct.15 Second, under the previous decisions of this circuit, 

both of these elements must be present as a threshold matter of jurisdiction

11 Quesada v. Napolitano, 701 F.3d 1080, 1084 n.9 (5th Cir. 2012); Ramchandani v. 

Gonzales, 434 F.3d 337, 339 n.1 (5th Cir. 2005); Theriot v. Parish of Jefferson, 185 F.3d 477, 

491 n.26 (5th Cir. 1999).

12 Cole, 484 F.3d at 723; see Spence v. Glock, Ges.m.b.H., 227 F.3d 308, 310 (5th Cir. 

2000); In re Chicken Antitrust Litig. Am. Poultry, 669 F.2d 228, 238 (5th Cir. 1982). 13 Mims v. Stewart Title Guar. Co., 590 F.3d 298, 304 (5th Cir. 2009).

14 Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194-95 (2013). 15 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

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whenever a district court certifies a class under Rule 23.16

It is striking, however, that BP makes no attempt to identify a standard 

that we should apply to determine whether these elements are satisfied in this 

case. The frequent references in BP’s briefs to the “vast numbers of members 

who suffered no Article III injury” are disconnected from any discussion of 

pleading requirements, competent evidence, or the standards of proof by which 

the parties’ contentions are evaluated during different stages of litigation. In 

particular, BP’s arguments fail to explain how this court or the district court 

should identify or even discern the existence of “claimants that have suffered 

no cognizable injury” for purposes of the standing inquiry during class 

certification and settlement approval.

In the following sections, therefore, we review the law governing the 

standard applicable to Article III questions in the specific context of Rule 23, 

and then turn to examine the facts of the present case. As explained below, 

although the relevant authorities suggest two possible approaches to Article 

III questions at the class certification stage, both of these approaches require 

us to reject BP’s standing argument. Whichever test is applied, therefore, 

Article III does not mandate reversal in this case.

A.

As the Supreme Court explained in Lujan v. Defenders of Wildlife, 504 

U.S. 555, 560-61 (1992), the elements of Article III standing are constant 

throughout litigation: injury in fact, the injury’s traceability to the defendant’s 

conduct, and the potential for the injury to be redressed by the relief requested. 

As Lujan emphasized, however, the standard used to establish these three 

elements is not constant but becomes gradually stricter as the parties proceed 

through “the successive stages of the litigation.” In Lewis v. Casey, 518 U.S. 

16 See Cole, 484 F.3d at 721-22; Rivera, 283 F.3d at 318-19.

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343, 358 (1996), the Supreme Court reaffirmed this formulation:

Since they are not mere pleading requirements, but 

rather an indispensable part of the plaintiff’s case, 

each element of standing must be supported in the 

same way as any other matter on which the plaintiff 

bears the burden of proof, i.e., with the manner and 

degree of evidence required at the successive stages of 

the litigation. At the pleading stage, general factual 

allegations of injury resulting from the defendant’s 

conduct may suffice, for on a motion to dismiss we 

presume that general allegations embrace those 

specific facts that are necessary to support the claim. 

In response to a summary judgment motion, however,

the plaintiff can no longer rest on such mere 

allegations, but must set forth by affidavit or other 

evidence specific facts, which for purposes of the 

summary judgment motion will be taken to be true. 

And at the final stage, those facts (if controverted) 

must be supported adequately by the evidence 

adduced at trial.17

Lujan and Lewis provide a useful blueprint, therefore, but do not 

comprehensively address all conceivable stages of litigation in which Article 

III standing may need to be addressed. This quoted passage does not explain, 

in particular, how courts are to evaluate standing for the purposes of class 

certification and settlement approval under Rule 23.

In attempting to answer this question, courts have followed two 

analytical approaches. According to one approach, which has been endorsed 

by three Justices concurring in Lewis,18 several circuits, and an influential 

17 Lewis, 518 U.S. at 358 (quoting Lujan, 504 U.S. at 561) (alterations and internal 

quotation marks omitted).

18 Id. at 395-96 (Souter, J., concurring in part, dissenting in part, and concurring in 

the judgment; joined by Ginsburg, J., and Breyer, J.).

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treatise,19 the inquiry hinges exclusively on the Article III standing of the 

“named plaintiffs” or “class representatives.” This test requires courts to

ignore the absent class members entirely:

Unnamed plaintiffs need not make any individual 

showing of standing in order to obtain relief, because 

the standing issue focuses on whether the plaintiff is 

properly before the court, not whether represented 

parties or absent class members are properly before 

the court. Whether or not the named plaintiff who 

meets individual standing requirements may assert 

the rights of absent class members is neither a 

standing issue nor an Article III case or controversy 

issue but depends rather on meeting the prerequisites 

of Rule 23 governing class actions.20

In the years since Lewis, this approach to the standing inquiry during class 

certification has been followed by the Seventh,21 Ninth,22 and Third Circuits.23 

Additionally, the Tenth Circuit has adopted this test at least in “class action[s]

seeking prospective injunctive relief” and arguably also in class actions for 

damages as well.24 As stated in a frequently cited decision by the Seventh 

19 W. RUBENSTEIN, A. CONTE & H. NEWBERG, NEWBERG ON CLASS ACTIONS § 2:3 (5TH 

ED. 2011) (“These passive members need not make any individual showing of standing 

because the standing issue focuses on whether the named plaintiff is properly before the 

court, not whether represented parties or absent class members are properly before the 

court.”).

20 Lewis, 518 U.S. at 395-96 (Souter, J., concurring in part, dissenting in part, and 

concurring in the judgment) (alterations and internal quotation marks omitted).

21 Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, 676-78 (7th Cir. 2009).

22 Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1020-21 (9th Cir. 2011) (“On the 

contrary, our law keys on the representative party, not all of the class members, and has done 

so for many years . . . . In a class action, standing is satisfied if at least one named plaintiff 

meets the requirements . . . .” (internal quotation marks and citations omitted)).

23 In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 306-

07 (3d Cir. 1998) (“There is also ample evidence that each named party has suffered an ‘injury 

in fact’ . . . . Thus, the named plaintiffs satisfy Article III. The absentee class members are 

not required to make a similar showing . . . .”).

24 DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1197-98 (10th Cir. 2010) (“First, 

only named plaintiffs in a class action seeking prospective injunctive relief must demonstrate 

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Circuit, Kohen v. Pacific Investment Management Co. LLC, 571 F.3d 672, 677 

(7th Cir. 2009), it is “almost inevitable” that “a class will . . . include persons 

who have not been injured by the defendant’s conduct[] . . . because at the 

outset of the case many of the members of the class may be unknown, or if they 

are known still the facts bearing on their claims may be unknown.” According 

to Kohen, however, even this “inevitability” does not preclude Article III 

standing during the Rule 23 stage.25

Other circuit decisions have not necessarily ignored absent class

members. According to these decisions, courts must ensure that absent class 

members possess Article III standing by examining the class definition. 

Importantly, however, this approach does not contemplate scrutinizing or 

weighing any evidence of absent class members’ standing or lack of standing 

during the Rule 23 stage. The most frequently cited formulation of this test is 

found in the Second Circuit’s decision in Denney v. Deutsche Bank AG, 443 F.3d 

253, 263-64 (2d Cir. 2006): “We do not require that each member of a class 

submit evidence of personal standing. At the same time, no class may be 

certified that contains members lacking Article III standing. The class must 

therefore be defined in such a way that anyone within it would have 

standing.”26 The Eighth Circuit has also applied this test,27 as have the 

standing by establishing they are suffering a continuing injury or are under an imminent 

threat of being injured in the future. . . . ‘[A] class will often include persons who have not 

been injured by the defendant’s conduct. . . . Such a possibility or indeed inevitability does 

not preclude class certification.’” (quoting Kohen, 571 F.3d at 677)). 25 Kohen, 571 F.3d at 677.

26 Denney, 443 F.3d at 263-64 (citations omitted).

27 Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1034 (8th Cir. 2010) (citing Denney, 

443 F.3d at 263-64).

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Seventh28 and Ninth Circuits,29 despite both these latter circuits’ statements 

in other decisions that absent class members are irrelevant to the Article III

inquiry.30

If this case actually required us to do so, it might not be a simple task to 

choose between the Kohen test and the Denney test based on this roughly even

split of circuit authority.31 It is also perhaps unclear whether our circuit has 

already adopted the Kohen test in Mims v. Stewart Title Guaranty Co., 590 

F.3d 298 (5th Cir. 2009). Citing Kohen, we stated in Mims that “[c]lass 

certification is not precluded simply because a class may include persons who 

have not been injured by the defendant’s conduct.”32 Although this particular 

statement was made in the context of analyzing Rule 23 rather than Article 

III, we elsewhere concluded in Mims that “[t]here is no serious question that 

the plaintiffs have standing” after explicitly analyzing only “the named 

plaintiffs.”33

28 Adashunas v. Negley, 626 F.2d 600, 603 (7th Cir. 1980) (“In order to state a class 

action claim upon which relief can be granted, there must be alleged at the minimum (1) a 

reasonably defined class of plaintiffs, (2) all of whom have suffered a constitutional or 

statutory violation (3) inflicted by the defendants.”).

29 Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 594 (9th Cir. 2012) (citing 

Denney, 443 F.3d at 263-64).

30 See Kohen, 571 F.3d at 677; Stearns, 655 F.3d at 1020-21. 31 No clear guidance is provided by the Supreme Court’s decision with the greatest 

relevance to Article III questions arising due to a class settlement, Amchem Products, Inc. v. 

Windsor, 521 U.S. 591, 612-13 (1997). The Supreme Court implied in that case that a district 

court could not approve a class settlement containing class members who had not yet 

manifested any health problems from their past exposures to asbestos. If these “exposureonly” plaintiffs’ claims were not yet ripe, the Supreme Court suggested, then their inclusion 

in a class action would not be “in keeping with Article III constraints.” Amchem, 521 U.S. at

612-13. The Supreme Court did not ultimately reach the ripeness question, however, because 

the asbestos-litigation class failed under a Rule 23 inquiry that the Supreme Court 

considered “logically antecedent to the existence of any Article III issues.” Id. It is therefore 

unclear how the Supreme Court would eventually have approached its ripeness 

determination.

32 See Mims, 590 F.3d at 308. 

33 See id. at 302.

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Judge Clement’s opinion in Deepwater Horizon I, however, did not 

mention Mims, distinguished Kohen on its facts, and instead applied the 

Denney test.34 In Part II of her opinion, which Judge Southwick did not join

and from which Judge Dennis dissented, Judge Clement explained that absent 

class members’ standing is indeed relevant to jurisdiction over a class action. 

She also agreed with Denney that absent class members’ standing should be 

evaluated based on how a class is “defined” and on whether the absent class 

members are “alleged” to have colorable claims.35 As Judge Clement 

emphasized several times, when an absent class member is “unable to plead

the causation element,” the absent class member’s “non-colorable claims do not 

constitute Article III cases or controversies.”36 In Judge Clement’s view, if 

absent class members include persons who “concede” that they have no 

“causally related injury,” then a district court lacks jurisdiction to certify the 

class.37 Judge Clement also agreed with Denney that Article III does not 

require a showing that an absent class member “can prove his case” at the Rule 

23 stage, so long as the absent class member “can allege standing.”38

This case is not a vehicle, however, for us to choose whether Kohen or 

Denney articulated the correct test. Nor does this case require us to decide 

whether Mims has already adopted the Kohen test as a matter of Fifth Circuit 

law. For the purposes of the present case, these questions are entirely 

34 See Deepwater Horizon I, 732 F.3d at 340-42, 344 & n.12 (describing the “judicial 

role to ensure that class definitions comply with statutory and constitutional strictures” 

(emphasis added)). 35 Id. at 340-42 (quoting Adashunas, 626 F.2d at 603, and Denney, 443 F.3d at 263-

64). Judge Clement also cited frequently to Judge Jordan’s dissent in Sullivan v. DB 

Investments, Inc., 667 F.3d 273, 346 (3d Cir. 2011) (en banc) (Jordan, J., dissenting), which 

proposed a test that could be applied to “a class complaint requesting relief” without looking 

to any additional items of proof.

36 Deepwater Horizon I, 732 F.3d at 340-42. 37 See id. at 343.

38 Id. at 340-42.

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academic because BP’s standing argument fails under both the Kohen test and 

the Denney test. As explained in the next section, both the named plaintiffs 

and the absent class members contemplated by the class definition include only 

persons and entities who can allege causation and injury in accordance with 

Article III.

B.

Looking first to the Kohen test for standing, it is clear that the class 

action in this case survives Article III because the named plaintiffs have each 

alleged injury in fact, traceability to the defendant’s conduct, and 

redressability by the relief requested.39 The named plaintiffs set forth their 

allegations in the operative pleading in this case, the Amended Class Action 

Complaint for Private Economic Losses and Property Damages, which was

filed with the district court on May 2, 2012.40 The Amended Class Action 

Complaint explains that “Plaintiffs are individuals and/or entities who have 

suffered economic and property damages as a result of the Deepwater Horizon 

Incident.”41 This document thereafter identifies each of the fifteen named 

plaintiffs individually and explains in detail how each has suffered economic 

damages due to the “lack of adequate supplies of seafood to process and sell,” 

a “severe reduction in tourist-related bookings,” a drop in “demand for marine 

tourism,” “a loss on the sale of . . . residential property,” and numerous other 

types of economic injury and property damage.42

Each one of these named plaintiffs satisfies the elements of standing by 

identifying an injury in fact that is traceable to the oil spill and susceptible to

redress by an award of monetary damages. Under the Kohen test, that is the 

39 See Kohen, 571 F.3d at 677.

40 See In re Oil Spill, 910 F. Supp. 2d at 902 (citing Amended Class Action Complaint 

(Rec. Doc. 6412)).

41 Amended Class Action Complaint 6-13 (Rec. Doc. 6412) (emphasis added).

42 Id.

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end of the inquiry. As explained in Cole v. General Motors Corp., 484 F.3d 717 

(5th Cir. 2007), which addressed the Article III standing of named plaintiffs 

during class certification under Rule 23, we found it “sufficient for standing 

purposes that the plaintiffs seek recovery for an economic harm that they 

allege they have suffered.”43 At the Rule 23 stage, Cole provides that “a federal 

court must assume arguendo the merits of [each named plaintiff’s] legal 

claim.”44 Indeed, BP has never argued that any of the named plaintiffs lack 

Article III standing. Accordingly, there is no question that the Kohen test is 

satisfied in this case.45

Applying the Denney test to the definition of the class proposed for 

certification, we come to the same conclusion. The Class Definition is set forth 

in paragraph 306 of the Amended Class Action Complaint and is reproduced 

in its entirety in Appendix B of the district court’s order. Under the plain terms 

of the Class Definition, a “person or entity” is included “in the Economic Class

only if their Claims meet the descriptions of one or more of the Damage 

Categories described” in Section 1.3.1 of the Class Definition. Of these 

“Damage Categories,” the only category that BP has identified as giving rise to 

Article III difficulties is the “Economic Damage Category” under Section 

1.3.1.2.46 This section of the Settlement Agreement, however, explicitly limits 

claims to those based on “[l]oss of income, earnings or profits suffered by 

Natural Persons or Entities as a result of the DEEPWATER HORIZON 

INCIDENT,” subject to exclusions for participants in certain industries.47 As 

contemplated by the Class Definition, therefore, the class contains only 

43 Cole, 484 F.3d at 723 (emphasis added).

44 Id. (quoting Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007)

(internal quotation marks omitted)).

45 See Kohen, 571 F.3d at 677.

46 See In re Oil Spill, 910 F. Supp. 2d at 965-67.

47 Id. (emphasis added).

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persons and entities that possess Article III standing.

Even if the “definition” of the class were interpreted for the purposes of 

the Denney test to include the entire Amended Class Action Complaint, rather 

than just the provisions set forth in paragraph 306, the result would be no 

different. The Amended Class Action Complaint includes numerous 

allegations of injuries to the absent class members caused by the oil spill. For 

example, the sections of the Amended Class Action Complaint directed toward 

the satisfaction of the Rule 23(a) requirements for numerosity, commonality, 

and typicality each emphasize causation and actual damages with respect to 

each member of the class:

The Class consists of tens of thousands of individuals 

and businesses that have been economically damaged 

by the spill . . . . Each Class member’s claim arises 

from the same course of planning, decisions, and 

events, and each Class member will make similar legal 

and factual arguments to prove Defendants’

outrageous, willful, reckless, wanton, and deplorable 

conduct and liability . . . . The claims in this Second 

Amended Master Class Action Complaint are typical 

of the claims of the E&PD Class in that they represent 

the various types of non-governmental economic losses 

and property damage caused by the Deepwater 

Horizon Incident.48

Accordingly, using Judge Clement’s formulation of the standard, the class in 

this case does not include any members who “concede” that they lack any

“causally related injury.”49 This ends the Article III inquiry under the Denney 

test, which does “not require that each member of a class submit evidence of 

personal standing”50 so long as every class member contemplated by the class 

48 Amended Class Action Complaint 108-10 (Rec. Doc. 6412).

49 Deepwater Horizon I, 732 F.3d at 343. 50 Denney, 443 F.3d at 263.

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definition “can allege standing.”51

Our decision in Cole confirms that “it is sufficient for standing purposes 

that the plaintiffs seek recovery for an economic harm that they allege they 

have suffered” because for each class member we “must assume arguendo the 

merits of his or her legal claim” at the Rule 23 stage.52 Although Cole 

addressed the standing of named plaintiffs rather than absent class members, 

it would make no sense to apply a higher evidentiary standard to absent class 

members than to named plaintiffs. We also stated in In re Rodriguez, 695 F.3d 

360, 370 (5th Cir. 2012), that even the absent class members are “linked” under 

Rule 23 to the “common complaint, and the possibility that some may fail to 

prevail on their individual claims will not defeat class membership.” Whether 

the Kohen test or the Denney test is applied, therefore, we find that Article III 

and the Rules Enabling Act53 are satisfied in this case.

51 Deepwater Horizon I, 732 F.3d at 340-42.

52 Cole, 484 F.3d at 721-23 (emphasis added) (quoting Parker, 478 F.3d at 377 (internal 

quotation marks omitted)).

53 Under the Rules Enabling Act, 28 U.S.C. § 2072(b), “[t]he Federal Rules of Civil 

Procedure cannot work as substantive law.” Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468, 

474 (5th Cir. 2011). In this case, the substantive law is neither Rule 23 nor any other Federal 

Rule of Civil Procedure, but the OPA and federal maritime law, under which the named 

plaintiffs raised a variety of different claims in the Amended Class Action Complaint. 

Despite making several references to the Rules Enabling Act in their supplemental briefs, 

neither BP nor the Objectors have contested this basic point. The Rules Enabling Act 

therefore is not violated. See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 

U.S. 393, 406-08 (2010) (plurality opinion) (“A class action, no less than traditional joinder 

(of which it is a species), merely enables a federal court to adjudicate claims of multiple 

parties at once, instead of in separate suits. And like traditional joinder, it leaves the parties’

legal rights and duties intact and the rules of decision unchanged.”); id. at 431-36 (Stevens, 

J., concurring in part and concurring in the judgment) (agreeing that Rule 23 does not violate 

the Rules Enabling Act so long as no substantive state law is displaced in a diversity case);

Sullivan v. DB Invs., Inc., 667 F.3d 273, 312-13 (3d Cir. 2011) (en banc) (concluding that a 

district court’s “approval of the parties’ settlement should not be considered a recognition or 

expansion of substantive rights” under the Rules Enabling Act).

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C.

In concluding this analysis, we note the possibility that the application 

of a stricter evidentiary standard might reveal persons or entities who have 

received payments under Exhibits 4B and 4C and yet have suffered no loss

resulting from the oil spill. But courts are not authorized to apply such a 

standard for this purpose at the Rule 23 stage. Under Lujan and Lewis, of 

course, this is precisely what the district judge must do at summary judgment

and what the finder of fact must do at trial.54 Without ever saying so explicitly, 

BP implies that we should also resolve Article III questions at the Rule 23 stage 

by looking to evidence of certain prospective claimants’ standing. That is, BP 

cites to items of evidence—in particular, a series of declarations by economists, 

Henry H. Fishkind, A. Mitchell Polinsky, J. Richard Dietrich, and Hal Sider. 

These economists’ declarations, in BP’s view, demonstrate that the Claims 

Administrator has awarded payments under his interpretations of Exhibits 4B 

and 4C to persons and entities that likely were not injured by the Deepwater 

Horizon incident. It is unclear from BP’s submissions during this appeal 

whether BP asks us to evaluate this proof by applying a summary-judgment 

standard or a preponderance-of-the-evidence standard. Ultimately, we can do 

neither in this case.

With respect to the evidence cited by BP regarding these claimant’s 

standing, we emphasize two points. First, and most obviously, none of this 

evidence was ever considered by the district court prior to December 21, 2012, 

the date when the district court certified the class and approved the 

settlement.55 The cited versions of these economists’ declarations were filed 

54 Lewis v. Casey, 518 U.S. at 358 (citing Lujan, 504 U.S. at 560-61).

55 The record contains an e-mail message from Judge Barbier documenting a 

“discussion” on December 12, 2012, during which it was confirmed that “Counsel for BP and 

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with the district court on March 20, 2013, and none of them is dated earlier 

than January 15, 2013. Even though standing is a jurisdictional matter, any 

“facts expressly or impliedly found by the district court” in the course of 

“making its jurisdictional findings” must be accepted on appeal unless they are 

clearly erroneous.56 Additionally, under the settled law of this circuit, “an 

appellate court may not consider new evidence furnished for the first time on 

appeal and may not consider facts which were not before the district court at 

the time of the challenged ruling.”57 We therefore cannot consider the 

economists’ declarations cited by BP or draw any conclusions from them.

Second, BP has cited no authority—and we are aware of none—that 

would permit an evidentiary inquiry into the Article III standing of absent 

class members during class certification and settlement approval under Rule 

23. It is true that a district court may “probe behind the pleadings” when 

examining whether a specific case meets the requirements of Rule 23, such as

numerosity, commonality, typicality, and adequacy.58 But the Supreme Court 

cautioned in Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 133 

S. Ct. 1184, 1194-95 (2013), that “Rule 23 grants courts no license to engage in 

free-ranging merits inquiries at the certification stage. Merits questions may 

the PSC agree with the Claims Administrator’s objective analysis of causation with respect 

to his evaluation of economic damage claims,” as set forth in the second Policy 

Announcement. See Declaration of Andrew T. Karron, Ex. 19-V (Rec. Doc. 8963-75). But no 

party has suggested that any of the expert declarations that have been presented to this court 

were considered by Judge Barbier either during this “discussion” or at any time previously. 

In fact, given that BP and the named plaintiffs were both still in agreement with the Claims 

Administrator on that date, it seems more likely that the expert declarations were not shared 

with Judge Barbier.

56 Cole, 484 F.3d at 721; Pederson v. La. State Univ., 213 F.3d 858, 869 (5th Cir. 2000). 57 Quesada, 701 F.3d at 1084 n.9; Ramchandani, 434 F.3d at 339 n.1; Theriot, 185 

F.3d at 491 n.26.

58 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting Gen. Tel. Co. 

of Sw. v. Falcon, 457 U.S. 147, 160 (1982)).

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be considered to the extent—but only to the extent—that they are relevant to 

determining whether the Rule 23 prerequisites for class certification are 

satisfied.”

Relevant circuit authority confirms the inappropriateness of reviewing 

evidence of absent class members’ standing at the Rule 23 stage. Mims and 

Kohen suggest that such evidence is simply irrelevant, inasmuch as “[c]lass 

certification is not precluded simply because a class may include persons who 

have not been injured by the defendant’s conduct.”59 Denney and Judge 

Clement’s opinion in Deepwater Horizon I, for their part, also “do not require 

that each member of a class submit evidence of personal standing”60 so long as 

the class is defined so that every absent class member “can allege standing.”61 

Our older decision in Cole confirms that it would be improper to look for proof 

of injuries beyond what the claimants identified in the class definition can 

“allege they have suffered” at this stage.62 Despite BP’s urging, therefore, even 

a district court could not consider the evidence regarding absent class 

members’ standing at the Rule 23 stage.

Of course, had the class in this case been certified under Rule 23 for 

further proceedings on the merits rather than for settlement, the district court 

might ultimately have had occasion to apply a stricter evidentiary standard. 

As the district court said explicitly, “certain causation issues . . . would have to 

be decided on an individual basis were the cases not being settled,” including 

“for example, the extent to which the Deepwater Horizon incident versus other 

59 See Mims, 590 F.3d at 302, 308. 

60 Denney, 443 F.3d at 263-64.

61 Deepwater Horizon I, 732 F.3d at 340-42.

62 See Cole, 484 F.3d at 721-23 (emphasis added) (quoting Parker, 478 F.3d at 377

(internal quotation marks omitted)).

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factors caused a decline in the income of an individual or business.”63 As early 

as October 6, 2010, the district court anticipated that “issues relating to 

damages” could and would be “severed and tried separately” from other issues 

relating to liability,64 in accordance with this court’s previous case law65 and 

Rule 23(c)(4).66 In its submissions to the district court, BP also contemplated 

the possibility of “a trial of an economic damage test case” and “presentations 

of proof and comparative responsibility.”67 Such proceedings would have 

provided opportunities for BP to inquire more deeply into individual claimants’

evidence of Article III standing under the applicable evidentiary standards

described in Lujan and Lewis.68 In the absence of any motion for summary 

judgment or trial predicated upon the Article III standing of those absent class 

members, however, it would be premature and improper for a court to apply 

evidentiary standards corresponding to those later stages of litigation.

Indeed, it would make no practical sense for a court to require evidence

of a party’s claims when the parties themselves seek settlement under Rule 

23(e). Logically, requiring absent class members to prove their claims prior to

settlement under Rule 23(e) would eliminate class settlement because there 

would be no need to settle a claim that was already proven. Such a rule would 

63 In re Oil Spill, 910 F. Supp. 2d at 924. 64 Scheduling Order of October 6, 2010, at 3 (Rec. Doc. 473).

65 This court has previously “approved mass tort or mass accident class actions when 

the district court was able to rely on a manageable trial plan—including bifurcation” of “classwide liability issues” and issues of individual damages. Steering Comm. v. Exxon Mobil 

Corp., 461 F.3d 598, 603 (5th Cir. 2006) (analyzing Watson v. Shell Oil Co., 979 F.2d 1014, 

1017-18, 1024 & n.9 (5th Cir. 1992)). 66 See Butler v. Sears, Roebuck & Co., 727 F.3d 796, 800 (7th Cir. 2013) (“[A] class 

action limited to determining liability on a class-wide basis, with separate hearings to 

determine—if liability is established—the damages of individual class members, or 

homogeneous groups of class members, is permitted by Rule 23(c)(4) and will often be the 

sensible way to proceed.”).

67 Defs.’ Memorandum of October 6, 2010, at 6, 8 (Rec. Doc. 488).

68 Lewis, 518 U.S. at 358 (citing Lujan, 504 U.S. at 560-61).

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thwart the “overriding public interest in favor of settlement” that we have 

recognized “[p]articularly in class action suits.”69 The legitimacy of class 

settlements is reflected not only in Rule 23(e) but also in the special regime 

that Congress has created to govern class settlements under 28 U.S.C. §§ 1711-

15. Through the procedural mechanism of a class settlement, defendants “are 

entitled to settle claims pending against them on a class-wide basis even if a 

court believes that those claims may be meritless, provided that the class is 

properly certified under Rules 23(a) and (b) and the settlement is fair under 

Rule 23(e).”70 By entering into class-wide settlements, defendants “obtain[] 

releases from all those who might wish to assert claims, meritorious or not” 

and protect themselves from even those “plaintiffs with non-viable claims 

[who] do nonetheless commence legal action.”71

This is certainly not to say, on the other hand, that the Claims 

Administrator must afford the same deference to the absent class members’

allegations that we apply when addressing Article III issues at the Rule 23

stage. Naturally, the Claims Administrator is not bound to apply the Denney 

test or the Kohen test but must follow whatever instructions are set forth in 

Exhibit 4B, Exhibit 4C, and the other provisions of the parties’ detailed 

Settlement Agreement. In his concurrence to Deepwater Horizon I, Judge 

Southwick succinctly observed that Exhibits 4B and 4C created an evidentiary 

framework intended to “simplif[y] the claims process by making proof of loss a 

69 Kincade v. Gen. Tire & Rubber Co., 635 F.2d 501, 507 (5th Cir. 1981) (quoting Cotton 

v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977)); see also Smith v. Crystian, 91 F. App’x 952, 

955 (5th Cir. 2004) (acknowledging the “strong judicial policy favoring the resolution of 

disputes through settlement” and affirming both class certification and settlement approval

(internal citation and quotation marks omitted)).

70 In re Am. Int’l Grp., Inc. Sec. Litig., 689 F.3d 229, 243-44 (2d Cir. 2012).

71 Sullivan, 667 F.3d at 310.

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substitute for proof of factual causation.”72 The parties now vigorously dispute 

how this evidentiary framework was intended to work. For its part, BP has 

argued in its subsequent submissions to the Deepwater Horizon I panel that 

“the Claims Administrator must make a threshold determination whether the 

claimant has suffered loss as a result of the spill” and that under footnote 1 of 

Exhibit 4B this “threshold determination must be made before applying the 

causation criteria outlined in Exhibit 4B.” The named plaintiffs hold a 

different view.

The evidentiary standard to be applied by the Claims Administrator, 

however, is not a matter of Article III standing. It is a question of interpreting 

the Settlement Agreement and applying it to each individual claim, and we are 

not called upon to address those issues in this appeal.

IV.

We turn now to examine the Rule 23 arguments raised by BP, the Allpar 

Objectors, the Cobb Objectors, and the BCA Objectors. In addressing Rule 23, 

BP and the Allpar Objectors have made nearly identical arguments. They 

challenge class certification and settlement approval under a variety of 

provisions of Rule 23 based on the same central premise discussed above in the 

context of Article III—that a class cannot be certified when it includes persons 

who have not actually been injured. The Cobb Objectors also expressly adopt 

BP’s arguments by reference and add only a single additional argument. 

According to the Cobb Objectors, the named plaintiffs did not adequately 

represent the class under Rule 23(a)(4) because there were no subclasses 

formed to represent residents of different states, particularly residents of 

Texas, and no subclass formed to represent those potential claimants who 

72 Deepwater Horizon I, 732 F.3d at 346 (Southwick, J., concurring in Parts I and III

of the majority opinion).

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would have been “better off under the GCCF claims process.” As explained 

below, the objections of the Allpar Objectors, the Cobb Objectors, and BP have 

no merit.

For their part, the BCA Objectors—who refer to themselves in this way 

because they are represented by Brent Coon & Associates—were among the 

12,970 objectors who “failed to comply with the requirements of the 

Preliminary Approval Order in that they failed to provide written proof of class 

membership and, therefore, forfeited and waived their objections.”73 The 

district court’s Preliminary Approval Order provided that any class member 

who wished to object to the Settlement Agreement must do so in writing by 

August 31, 2012, and include “written proof of class membership” with his or 

her objection, “such as proof of residency, ownership of property and the 

location thereof, and/or business operation and the location thereof.”74 As the 

record shows, the BCA Objectors’ objection was filed timely but was 

incomplete. This submission included thousands of claimants’ names listed in 

a chart spanning more than 150 pages but lacked even a single claimant’s proof 

of residency, property ownership, or business operation.75

On November 7, 2012, the night before the fairness hearing and two 

months after the deadline for filing written objections, the BCA Objectors filed 

a Motion for Leave to File Reply Memorandum Late and in Excess of Ordinary 

73 See In re Oil Spill, 910 F. Supp. 2d at 936 (citing Report on Objections to and OptOuts from the Economic and Property Damages Settlement as Amended on May 2, 2012 (Rec. 

Doc. 8001)). 74 Id. at 935-36 (internal quotation marks omitted). 75 See id. (citing Report on Objections to and Opt-Outs from the Economic and Property 

Damages Settlement as Amended on May 2, 2012 (Rec. Doc. 8001)); see also Report on 

Objections to and Opt-Outs from the Economic and Property Damages Settlement as 

Amended on May 2, 2012, Ex. L, at 3-538 (Rec. Doc. 8001-18) (identifying each one of the 

11,245 objectors represented by Brent Coon & Associates as lacking “Standing Proof”); 

Plaintiffs Represented by Brent Coon & Associates’ Motion in Opposition and Objections to 

the Economic Class Settlement, Ex. 1 (Rec. Doc. 7224-2). 

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Page Limitations. On November 8, 2012—the morning of the fairness 

hearing—the district court issued an order striking this filing for untimeliness. 

The result of this, according to the district court’s order of December 21, 2012,

was that the BCA Objectors’ challenges to class certification and settlement 

approval were therefore forfeited and waived. In the notice of appeal filed with 

this court, the BCA Objectors have once again appended a lengthy list 

including thousands of names listed alphabetically on a chart, but no written 

proof of residency, property ownership, or business operation.

The district court’s instruction to provide proof of class membership was 

a legitimate exercise of its discretion under Rule 23(d)(1)(A) and Rule 

23(d)(1)(C) to “issue orders that[] . . . determine the course of proceedings” and 

“impose conditions . . . on intervenors” in a class action. As the Supreme Court 

recognized in Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981), a district court 

presiding over a class action “has both the duty and the broad authority” to 

enter such orders to minimize “the potential for abuse” during such

proceedings.76 Although a district court’s discretion under Rule 23(d) is “not 

unlimited,”77 the district court plainly acted within its discretion in finding 

that the BCA Objectors forfeited and waived their objections by disobeying the 

reasonable requirements of the Preliminary Approval Order. Moreover, in an 

unpublished case with equivalent facts, Feder v. Electronic Data Systems

Corp., 248 F. App’x 579, 580 (5th Cir. 2007), we dismissed an appeal from a

district court’s order on class certification and settlement approval based on 

76 Gulf Oil Co., 452 U.S. at 100; see also Moulton v. U.S. Steel Corp., 581 F.3d 344, 353 

(6th Cir. 2009) (“Rule 23 gives the district court broad discretion in handling class actions, 

authorizing ‘orders that . . . impose conditions on the representative parties or on 

intervenors.’”) (alteration in original); Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 

759 (7th Cir. 2000).

77 Gulf Oil Co., 452 U.S. at 100.

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the objector’s failure to “prove his membership in the class” in accordance with 

the district court’s reasonable documentation requirements. We see no 

meaningful difference between the present case and the facts of Feder. As we 

explained in Feder, “the right to object to settlement in a . . . class action must 

rest on something more than the sort of bare assertions” now offered by the 

BCA Objectors.78

Accordingly, because the BCA Objectors did not substantiate their 

membership in this class, the district court did not abuse its discretion under 

Rule 23(d)(1)(A) and Rule 23(d)(1)(C) in finding that the BCA Objectors

“forfeited and waived” their objections to the class certification and settlement 

approval.79 We therefore will not consider the merits of their objections.

In the remaining sections, we address the arguments raised by BP, the 

Allpar Objectors, and the Cobb Objectors in relation to the individual 

provisions of Rule 23.

A.

BP, the Allpar Objectors, and (by reference) the Cobb Objectors have all 

challenged certification of the class under Rule 23(a)(2), which requires a 

demonstration that “there are questions of law or fact common to the class.” 

These arguments rest entirely on a selective quotation from Wal-Mart Stores, 

Inc. v. Dukes, 131 S. Ct. 2541 (2011), and must be rejected. As the Supreme 

Court stated in Wal-Mart, “[c]ommonality requires the plaintiff to demonstrate 

that the class members ‘have suffered the same injury.’”80 Based on this single 

sentence, it is now suggested that either the diversity of the class members’

78 See Feder, 248 F. App’x at 581; see also Union Asset Mgmt. Holding A.G. v. Dell, 

Inc., 669 F.3d 632, 639 (5th Cir. 2012) (holding that objectors had standing to object 

specifically because they had “complied” with the requirements of the settlement notice).

79 See In re Oil Spill, 910 F. Supp. 2d at 936.

80 Wal-Mart, 131 S. Ct. at 2551 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 

157 (1982)).

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economic injuries or the inclusion of members who “have suffered no injury at 

all” might preclude class certification.

When quoted in its entirety, however, the relevant passage from WalMart demonstrates why both of these arguments are meritless:

Commonality requires the plaintiff to demonstrate 

that the class members “have suffered the same 

injury.” This does not mean merely that they have all 

suffered a violation of the same provision of law. Title 

VII, for example, can be violated in many ways—by 

intentional discrimination, or by hiring and promotion 

criteria that result in disparate impact, and by the use 

of these practices on the part of many different 

superiors in a single company. Quite obviously, the 

mere claim by employees of the same company that 

they have suffered a Title VII injury, or even a 

disparate-impact Title VII injury, gives no cause to 

believe that all their claims can productively be 

litigated at once. Their claims must depend upon a 

common contention—for example, the assertion of 

discriminatory bias on the part of the same supervisor. 

That common contention, moreover, must be of such a 

nature that it is capable of classwide resolution—

which means that determination of its truth or falsity 

will resolve an issue that is central to the validity of 

each one of the claims in one stroke.81

As this passage shows, the Supreme Court’s use of the phrase, “the same 

injury,” in Wal-Mart (and decades previously in General Telephone Co. of 

Southwest v. Falcon, 457 U.S. 147, 157 (1982)) does not support BP’s argument. 

To satisfy the commonality requirement under Rule 23(a)(2), class members

must raise at least one contention that is central to the validity of each class 

member’s claims. But this contention need not relate specifically to the 

damages component of the class members’ claims. Even an instance of 

81 Wal-Mart, 131 S. Ct. at 2551 (citation omitted) (quoting Falcon, 457 U.S. at 157).

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injurious conduct, which would usually relate more directly to the defendant’s 

liability than to the claimant’s damages, may constitute “the same injury.” 

This is confirmed by the example given by the Supreme Court in the above 

passage from Wal-Mart, “discriminatory bias on the part of the same 

supervisor,” which is itself not a type of damages, but an instance of injurious 

conduct that violates Title VII. Later in the same decision, the Supreme Court 

stated that another type of injurious conduct on the part of the defendant, “a 

companywide discriminatory pay and promotion policy,” would also have 

satisfied the “same injury” test for commonality under Rule 23(a)(2).82

Accordingly, as these two examples from Wal-Mart demonstrate, the 

legal requirement that class members have all “suffered the same injury” can 

be satisfied by an instance of the defendant’s injurious conduct, even when the 

resulting injurious effects—the damages—are diverse. This aspect of the law 

is therefore unchanged since our decision in Bertulli v. Independent Association 

of Continental Pilots, 242 F.3d 290, 298 (5th Cir. 2001), in which we upheld 

certification of a class action because “virtually every issue prior to damages 

[wa]s a common issue.” As we indicated in M.D. ex rel. Stukenberg v. Perry, 

675 F.3d 832, 840 (5th Cir. 2012), the principal requirement of Wal-Mart is 

merely a single common contention that enables the class action “to generate 

common answers apt to drive the resolution of the litigation.” These “common 

answers” may indeed relate to the injurious effects experienced by the class 

members, but they may also relate to the defendant’s injurious conduct. 

“[E]ven a single common question will do.”83

The above passage from Wal-Mart also demonstrates that district courts

do not err by failing to ascertain at the Rule 23 stage whether the class 

82 Id. at 2556. 83 Id. (alterations and internal quotation marks omitted).

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members include persons and entities who have suffered “no injury at all.” As 

the Supreme Court explained, a “contention” regarding the class members’

injury is sufficient to satisfy Rule 23, so long as the party seeking certification 

can show that this contention is “common” to all the class members, is “central” 

to the validity of their claims, and is “capable” of classwide resolution. There 

is no need to resolve the merits of the common contention at the Rule 23 stage 

or to attempt prematurely the “determination of its truth or falsity.”84 

Although Rule 23 “does not set forth a mere pleading standard” and a court 

may need to “probe behind the pleadings before coming to rest on the 

certification,”85 Rule 23 does not therefore become a dress rehearsal for the 

merits.86 As the Supreme Court repeated last term in Amgen, “[m]erits 

questions may be considered to the extent—but only to the extent—that they 

are relevant to determining whether the Rule 23 prerequisites for class 

certification are satisfied.”87 In other words, to satisfy the commonality 

requirement under Rule 23(a)(2), the parties may potentially need to provide 

evidence to demonstrate that a particular contention is common, but not that 

it is correct.

The district court’s certification of this class, therefore, did not violate 

Rule 23(a)(2). After reviewing expert evidence, the district court found that 

numerous factual and legal issues were central to the validity of all the class 

members’ claims. These included “[w]hether BP had a valid superseding cause 

defense,” “[w]hether BP used an improper well design that unreasonably 

heightened the risk,” “[w]hether the cement mixture was unstable, and, if so, 

whether BP should have prevented its use,” “[w]hether BP took appropriate 

84 See id. at 2551.

85 See id. (quoting Falcon, 457 U.S. at 160).

86 In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 851-

52 (6th Cir. 2013); Messner v. Northshore Univ. HealthSys., 669 F.3d 802, 811 (7th Cir. 2012).

87 Amgen, 133 S. Ct. at 1195.

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and timely steps to stop the release of hydrocarbons from the well,” “whether 

these decisions (individually or collectively) constitute negligence, gross 

negligence, or willful misconduct,” “[w]hether BP is a responsible party under 

OPA,” “[w]hether BP could limit its liability under § 2704 of OPA,” “[w]hether 

punitive damages are available as a matter of law,” and whether BP “failed to 

mitigate the damages of the class.”88 Neither BP nor the remaining Objectors 

find fault with any of the items on the district court’s long list of common 

issues. Because “even a single common question will do” under Wal-Mart, this 

list was more than sufficient.89

Accordingly, the commonality arguments raised by BP, the Allpar 

Objectors, and the Cobb Objectors do not require decertification of the class. 

Although all of the factual and legal questions identified by the district court 

are more closely related to BP’s injurious conduct than to the injurious effects 

experienced by the class members, they nonetheless demonstrate that the class 

members claim to have suffered the “same injury” in the sense that Wal-Mart

used this phrase.90 Additionally, the district court did not err by failing to 

determine whether the class contained individuals who have not actually 

suffered any injury, because this would have amounted to a determination of 

the truth or falsity of the parties’ contentions, rather than an evaluation of

those contentions’ commonality. This was not required by Wal-Mart, and was 

expressly ruled out in Amgen.91 We therefore reject the challenges raised by 

BP, the Allpar Objectors, and the Cobb Objectors under Rule 23(a)(2).92

88 In re Oil Spill, 910 F. Supp. 2d at 922-23. 89 See Wal-Mart, 131 S. Ct. at 2556 (alterations and internal quotation marks omitted). 90 Id. at 2551 (quoting Falcon, 457 U.S. at 157). 91 Amgen, 133 S. Ct. at 1194-95. 92 In a one-sentence footnote in its initial brief, BP adds that “the claims of the 

representative parties are no longer typical of the claims of the class” in light of the Claims 

Administrator’s interpretations and directs our attention to the Supreme Court’s statement 

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B.

BP and the Objectors also challenge class certification and settlement 

approval under Rule 23(a)(4), which requires a demonstration that “the 

representative parties will fairly and adequately protect the interests of the 

class.” According to this argument, an impermissible “intraclass conflict” is 

created by the Claims Administrator’s interpretation of Exhibits 4B and 4C 

because the claimants now include some persons and entities that have 

suffered injuries, and other persons and entities that allegedly have not. As it 

has been interpreted, BP argues, the Settlement Agreement “would almost 

necessarily make injured members worse off than they might have been had 

non-injured members been excluded from the class.” According to BP, had the

injured class members been represented by named plaintiffs negotiating 

exclusively on their behalf, they could have used their increased bargaining 

power during settlement negotiations to demand a more favorable formula for

awarding payments.

The district court must be upheld, however, unless its decision 

constituted an abuse of discretion. In this case, the district court found that 

the named plaintiffs were “clearly adequate” to protect the interests of the class

as they included “individuals and businesses asserting each category of loss”

that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” See WalMart, 131 S. Ct. at 2551 n.5 (alteration in original) (internal quotation marks omitted). The 

Allpar Objectors also have not differentiated in any way between their commonality 

argument under Rule 23(a)(2) and their typicality argument under Rule 23(a)(3). To the 

extent that the references to “typicality” by BP and the Allpar Objectors constitute a separate 

argument under Rule 23(a)(3), that argument is rejected. For the same reasons given with 

respect to their commonality argument, neither BP nor the Allpar Objectors have 

demonstrated that the district court abused its discretion in finding that “[t]ypicality is 

satisfied here, as the class representatives—like all class members—allege economic and/or 

property damage stemming directly from the Deepwater Horizon spill.” In re Oil Spill, 910 

F. Supp. 2d at 915. 

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and were assisted by adequate counsel.93 After reviewing declarations by each 

of the named plaintiffs, the district court found that they had “participated in 

the settlement negotiations” and taken “an active role in the prosecution of this 

class action.”94 After reviewing expert testimony, the district court also found 

that the class action was structured to assure adequate representation of all 

interests within the class and to prevent intraclass conflict. Finally, the 

district court concluded that the “uncapped compensation” available under the 

Settlement Agreement would “ensure that a benefit paid to one member of the 

class will in no way reduce or interfere with a benefit obtained by another 

member.”95

Although BP made no objection to the district court’s order certifying the 

class and approving the Settlement Agreement, BP asks this court to find an 

intraclass conflict of interest because the claimants allegedly include persons 

and entities that have suffered no injury. In support of this allegation, BP 

presents us with a series of economists’ declarations that had not been 

provided to the district court when the class was certified. But our previous 

decisions prevent us from considering this evidence for the first time on 

appeal.96 Moreover, even if we were to accept BP’s contention that the class 

does include uninjured persons, Mims and Rodriguez would foreclose 

decertification of the class on this basis. As we stated in Mims in the context 

of the Rule 23 requirements, “[c]lass certification is not precluded simply 

because a class may include persons who have not been injured by the 

93 In re Oil Spill, 910 F. Supp. 2d at 916-17.

94 Id. at 916 (quoting Stott v. Capital Fin. Servs., Inc., 277 F.R.D. 316, 325 (N.D. Tex. 

2011)).

95 Id. at 918.

96 Quesada, 701 F.3d at 1084 n.9; Ramchandani, 434 F.3d at 339 n.1; Theriot, 185 

F.3d at 491 n.26.

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defendant’s conduct.”97 As we stated in Rodriguez, “the possibility that some 

[absent class members] may fail to prevail on their individual claims will not 

defeat class membership.”98

By contrast, we can consider the argument that the Cobb Objectors have 

raised under Rule 23(a)(4), which was passed upon by the district court. The 

Cobb Objectors argue that “class members from Texas, Louisiana, Alabama, 

Florida and Mississippi” should have been divided into their own subclasses, 

as should those class members who “were better off under the GCCF claims 

process.”

Although the creation of subclasses is sometimes necessary under Rule 

23(a)(4) to avoid a “fundamental conflict,” there is no need to create subclasses

to accommodate every instance of “differently weighted interests.”99 In this 

case, because the class members’ claims arise under federal law rather than 

state law, we are not persuaded that there is any fundamental conflict between 

the “differently weighted interests” of class members from different 

geographical regions. Although geographical criteria were indeed incorporated 

into the Settlement Agreement, the reason for this is both obvious and

acknowledged in the Cobb Objectors’ brief. That is, “causation becomes more 

97 Mims, 590 F.3d at 308.

98 Rodriguez, 695 F.3d at 370 (internal quotation marks omitted). 99 Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 186 (3d Cir. 2012) (quoting 

Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 429 (6th Cir. 2012)); see also In re 

Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242, 249 (2d Cir. 2011); Ward v. 

Dixie Nat’l Life Ins. Co., 595 F.3d 164, 180 (4th Cir. 2010) (“For a conflict of interest to defeat 

the adequacy requirement, that conflict must be fundamental.” (internal quotation marks 

omitted)); Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 959 (9th Cir. 2009) (“An absence of 

material conflicts of interest between the named plaintiffs and their counsel with other class 

members is central to adequacy . . . .” (emphasis added)); Valley Drug Co. v. Geneva Pharms., 

Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) (“Significantly, the existence of minor conflicts 

alone will not defeat a party’s claim to class certification: the conflict must be a ‘fundamental’

one going to the specific issues in controversy.”).

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difficult” for a claimant to establish “the further one moves from the coast” and, 

in particular, the further one moves from the Macondo reservoir where the 

Deepwater Horizon incident occurred.

As the district court expressly found, the differences between the 

formulas applicable in the different geographic zones were “rationally related 

to the relative strengths and merits of similarly situated claims.”100 The 

identification of objective, geographically-based criteria therefore easily 

distinguishes this case from In re Katrina Canal Breaches Litigation, 628 F.3d 

185, 194 (5th Cir. 2010), in which the district court improperly approved a class 

settlement that sought simply to “punt[] the difficult question of equitable 

distribution from the court to the special master, without providing any more 

clarity as to how fairness will be achieved.” The district court’s rigorous 

consideration of the expert evidence demonstrates that it did not abuse its 

discretion in declining to require subclasses for claimants based in Texas, 

Louisiana, Alabama, Florida, and Mississippi.

We also must reject the Cobb Objectors’ argument that an intraclass 

conflict exists between class members who were “better off under the GCCF 

claims process” and those who were not. Most critically, the Cobb Objectors 

have failed to provide any details about the cause of these claimants’ current 

disadvantage. In their brief, the Cobb Objectors repeat several times that some 

number of claimants are now “forced to meet arbitrary loss and recovery 

benchmarks” under the Settlement Agreement, whereas these same claimants 

apparently could have recovered under the GCCF without doing so. After 

considering substantial expert testimony, however, the district court found 

explicitly that the Settlement Agreement’s compensation criteria were not 

100 See In re Oil Spill, 910 F. Supp. 2d at 917-18.

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arbitrary, but “detailed” and “objective.”101 Nothing in the Cobb Objectors’

arguments demonstrates that the district court’s conclusions on this question 

constituted an abuse of discretion. Finally, even if some claimants were 

practically disadvantaged by the procedures of the court-administered claims 

process in comparison to the procedures of the GCCF, this mechanical 

discrepancy is only another example of “differently weighted interests” rather 

than a “fundamental conflict” of interests.102 As the Sixth and Third Circuits 

have held, “each class member naturally derives different amounts of utility

from any class-wide settlement” based on his or her unique circumstances, but 

this does not put all such class members in fundamental conflict with one 

another.103 Without a more detailed description of the disadvantage

experienced by the group that was supposedly “better off” under the GCCF, we 

cannot agree with the Cobb Objectors that the district court’s certification of 

this class was an abuse of discretion.

C.

BP and the Objectors also argue that class certification was improper 

under Rule 23(b)(3), which requires that “the questions of law or fact common 

to class members predominate over any questions affecting only individual 

members.” According to BP and the Objectors, the Supreme Court’s recent 

decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013)—which was 

decided three months after the district court certified the class—precludes 

certification under Rule 23(b)(3) in any case where the class members’ damages 

are not susceptible to a formula for classwide measurement.

This is a misreading of Comcast, however, which has already been 

101 Id. 102 Dewey, 681 F.3d at 186 (quoting Gooch, 672 F.3d at 429).

103 See id.

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rejected by three other circuits.104 As explained in greater detail below,

Comcast held that a district court errs by premising its Rule 23(b)(3) decision

on a formula for classwide measurement of damages whenever the damages 

measured by that formula are incompatible with the class action’s theory of 

liability. As the court explained, “[t]he first step in a damages study is the 

translation of the legal theory of the harmful event into an analysis of the 

economic impact of that event.”105 This rule may reveal an important defect in 

many formulas for classwide measurement of damages. But nothing in 

Comcast mandates a formula for classwide measurement of damages in all 

cases. Even after Comcast, therefore, this holding has no impact on cases such 

as the present one, in which predominance was based not on common issues of 

damages but on the numerous common issues of liability. In the present case,

the district court did not include a formula for classwide measurement of 

damages among its extensive listing of the “common issues” that weighed in 

favor of certification. The district court always recognized that the class 

members’ damages “would have to be decided on an individual basis were the 

cases not being settled,” as would “the extent to which the Deepwater Horizon

incident versus other factors caused a decline in the income of an individual or 

business.”106 The holding of Comcast cited by BP and the Objectors, therefore,

is simply inapplicable here.

As recalled above, the district court set forth a considerable list of issues 

that were common to all the class members’ claims. Nearly all of these issues 

related to either the complicated factual questions surrounding BP’s 

involvement in the well design, explosion, discharge of oil, and cleanup efforts

104 See Butler, 727 F.3d at 800; In re Whirlpool Corp., 722 F.3d at 860; Leyva v. Medline 

Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013). 105 Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1435 (2013) (quoting FED. JUDICIAL 

CTR., REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 432 (3D ED. 2011) (emphasis omitted)).

106 In re Oil Spill, 910 F. Supp. 2d at 924.

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or the uncertain legal questions surrounding interpretation and application of 

the OPA. Accordingly, BP and the Objectors are quite correct to suggest that, 

although the analysis of BP’s injurious conduct gives rise to numerous common 

questions, the class members’ damage calculations give rise primarily to 

individual questions that are not capable of classwide resolution.

But this is not fatal to class certification. As we stated in Bell Atlantic 

Corp. v. AT&T Corp., 339 F.3d 294, 306 (5th Cir. 2003), “[e]ven wide disparity 

among class members as to the amount of damages” does not preclude class 

certification “and courts, therefore, have certified classes even in light of the 

need for individualized calculations of damages.” Accordingly, as we

recognized in Steering Committee v. Exxon Mobil Corp., 461 F.3d 598, 603 (5th 

Cir. 2006), it is indeed “possible to satisfy the predominance . . . requirements 

of Rule 23(b)(3) in a mass tort or mass accident class action” despite the 

particular need in such cases for individualized damages calculations. On this 

basis, therefore, we have previously affirmed class certification in mass 

accident cases,107 as in other cases in which “virtually every issue prior to 

damages is a common issue.”108

In particular, as we explained in Madison v. Chalmette Refining, L.L.C., 

637 F.3d 551, 556 (5th Cir. 2011), predominance may be ensured in a mass 

accident case when a district court performs a sufficiently “rigorous analysis” 

of the means by which common and individual issues will be divided and tried. 

In many circuits, this has been accomplished by means of multi-phase trials 

under Rule 23(c)(4), which permits district courts to limit class treatment to 

107 See Steering Comm., 461 F.3d at 603 (analyzing Watson v. Shell Oil Co., 979 F.2d 

1014, 1022-23 (5th Cir. 1992)).

108 Bertulli, 242 F.3d at 298.

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“particular issues” and reserve other issues for individual determination.109 

Accordingly, Chalmette Refining instructed district courts to consider 

rigorously how they plan to “adjudicate common class issues in the first phase 

and then later adjudicate individualized issues in other phases” of the multiphase trial before the final decision is made to certify a class.110

Heeding our instruction in Chalmette Refining, therefore, the district 

court planned “to manage such litigation by breaking it down into separate 

phases, as the [district court] was prepared to do prior to the parties’ reaching 

a settlement.”111 From the beginning of the litigation, the district court had 

anticipated that “issues relating to damages” would be “severed and tried 

separately” from other issues relating to liability.112 The initial phases of this 

litigation would therefore have focused on common questions, including which 

defendants bore responsibility for the well blowout, how much oil escaped from 

the Macondo reservoir, who bore responsibility for the inability of the

defendants to contain the flow earlier, where the oil finally came to rest, and 

how the efforts to disperse the oil were conducted.113 “[A]bsent the 

Settlement,” the district court would then have been obliged to determine in 

later phases how “responsible party status would translate into compensation” 

under the OPA.114 

The district court was well aware, therefore, that the class members’

damages “would have to be decided on an individual basis were the cases not 

being settled,” as would “the extent to which the Deepwater Horizon incident 

109 Butler, 727 F.3d at 800; In re Whirlpool Corp., 722 F.3d at 860; Leyva, 716 F.3d at

514. 110 Chalmette Ref., 637 F.3d at 556. 111 In re Oil Spill, 910 F. Supp. 2d at 932. 112 Scheduling Order of October 6, 2010, at 3 (Rec. Doc. 473).

113 In re Oil Spill, 910 F. Supp. 2d at 921-23. 114 Id. at 924.

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versus other factors caused a decline in the income of an individual or 

business.”115 Accordingly, the district court did not list the calculation of the 

claimants’ damages either in its list of “common questions of fact” or in its list 

of “common questions of law.”116 But even without a common means of 

measuring damages, in the district court’s view, these common issues 

nonetheless predominated over the issues unique to individual claimants. As 

the district court explained, “[t]he phased trial structure selected by the Court 

prior to the parties’ arrival at a settlement agreement reflected the central 

importance of common issues to this case.”117

In rendering this conclusion, the district court did not abuse its 

discretion. The phased trial of common issues in this case would undoubtedly

prevent the repetitious re-litigation of these common issues by each individual

claimant in thousands of separate lawsuits. In accordance with our directive 

in Chalmette Refining, the district court also rigorously analyzed how it would 

adjudicate “common class issues in the first phase” and “individualized issues 

in other phases.”118 As required by Amchem Products, Inc. v. Windsor, 521 

U.S. 591, 615 (1997), this class action would indeed “achieve economies of time, 

effort, and expense, and promote . . . uniformity of decision as to persons 

similarly situated, without sacrificing procedural fairness or bringing about 

other undesirable results.” This class action therefore satisfies Rule 23(b)(3).

This analysis is not changed by the Supreme Court’s recent decision in 

Comcast. BP and the Objectors suggest that, three months after the district 

court certified the class and approved the settlement, Comcast brought about 

a revolution in the application of Rule 23(b)(3). According to this argument, 

115 Id.

116 Id. at 921-23.

117 Id. at 921.

118 See Chalmette Ref., 637 F.3d at 556.

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Comcast declared “that certification under Rule 23(b)(3) requires a reliable, 

common methodology for measuring classwide damages.” This reading is a

significant distortion of Comcast, and has already been considered and rejected 

by the Seventh Circuit, the Sixth Circuit, and the Ninth Circuit in the months 

since Comcast was decided.119

The principal holding of Comcast was that a “model purporting to serve 

as evidence of damages . . . must measure only those damages attributable to 

th[e] theory” of liability on which the class action is premised.120 “If the model 

does not even attempt to do that, it cannot possibly establish that damages are 

susceptible of measurement across the entire class for purposes of Rule 

23(b)(3).”121 In this case, however, the district court’s inquiry into 

predominance was never premised on such a formula. As our three fellow

circuits have already concluded, we agree that the rule of Comcast is largely 

irrelevant “[w]here determinations on liability and damages have been 

bifurcated” in accordance with Rule 23(c)(4) and the district court has 

“reserved all issues concerning damages for individual determination.”122 

Even after Comcast, the predominance inquiry can still be satisfied under Rule 

23(b)(3) if the proceedings are structured to establish “liability on a class-wide 

basis, with separate hearings to determine—if liability is established—the 

damages of individual class members.”123 As explained above, this is precisely 

how the district court planned to calculate the claimants’ damages, which 

119 See Butler, 727 F.3d at 800; In re Whirlpool Corp., 722 F.3d at 860; Leyva, 716 F.3d 

at 514.

120 Comcast Corp., 133 S. Ct. at 1433. 121 Id.

122 In re Whirlpool Corp., 722 F.3d at 860; see also Butler, 727 F.3d at 800; Leyva, 716 

F.3d at 514. 123 Butler, 727 F.3d at 800; see also In re Whirlpool Corp., 722 F.3d at 860; Leyva, 716 

F.3d at 514.

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“would have to be decided on an individual basis were the cases not being 

settled.”124 The principal holding of Comcast therefore has no application here. 

As an additional matter relating to the predominance inquiry, we also 

address BP’s suggestion that Comcast prohibits class certification in the 

present case because payments are made under the Settlement Agreement’s 

Exhibits 4B and 4C to claimants “who have suffered no injury.” In BP’s view, 

payments made under such a formula are not “attributable” to the class 

action’s theory of liability and therefore violate Comcast. In support of this 

argument, BP also has cited our decision in Bell Atlantic, which stated (very 

similarly to Comcast) that the predominance inquiry under Rule 23(b)(3)

cannot be satisfied when it is premised on a formula for classwide 

measurement of damages that “is clearly inadequate.”125

This argument must also be rejected. Neither Comcast nor Bell Atlantic, 

nor any other decision that BP has identified, has suggested that 

predominance under Rule 23(b)(3) can be defeated by a formula for making 

voluntary payments under a settlement agreement. Both Comcast and Bell 

Atlantic addressed formulas for measuring damages in class actions that had 

been certified for further proceedings on the merits, and neither made any 

mention of a settlement agreement. The Amchem decision, moreover, which 

did involve a settlement class proposed for certification under Rule 23(b)(3), 

explained that the predominance inquiry “trains on the legal or factual 

questions that qualify each class member’s case as a genuine controversy, 

questions that preexist any settlement.”126 Indeed, as stated elsewhere in 

Amchem, the existence of a settlement agreement allows the district court to 

dispense altogether with considering at least one of the Rule 23(b)(3) concerns: 

124 In re Oil Spill, 910 F. Supp. 2d at 924.

125 Bell Atl., 339 F.3d at 307. 126 Amchem, 521 U.S. at 623 (emphasis added).

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“the likely difficulties in managing a class action.” Under Amchem, when 

“[c]onfronted with a request for settlement-only class certification, a district 

court need not inquire whether the case, if tried, would present intractable 

management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is 

that there be no trial.”127

We cannot therefore conceive of why or how a formula for making 

voluntary payments under a settlement agreement could threaten the 

predominance of common questions over individual questions in litigation.

Indeed, the reason that BP has identified no authority for this proposition is 

that it is nonsensical. A question of law or fact that is “common” under Rule 

23 is one that enables the class action “to generate common answers apt to 

drive the resolution of the litigation.”128 But after a class action has been 

settled, by definition the litigation has been resolved and the questions have 

been answered. For the commonality and predominance inquiries to have any 

meaning at all, therefore, they must be considered independently from the 

resolution provided in a settlement—which is precisely what Amchem 

instructs.129 The arguments raised by BP and the Objectors regarding Rule 

23(b)(3) must therefore be rejected.130

127 Id. at 620.

128 Wal-Mart, 131 S. Ct. at 2551 (emphasis omitted); M.D., 675 F.3d at 840. 129 Amchem, 521 U.S. at 623 (explaining that the predominance inquiry “trains on the 

legal or factual questions that qualify each class member’s case as a genuine controversy, 

questions that preexist any settlement.”). It is worth recalling here that even though the 

settlement class in Amchem failed the predominance inquiry, this was not due to any feature 

of the settlement. This was because, rather, the district court had impermissibly taken into 

consideration factors such as the class members’ “interest in receiving prompt and fair 

compensation,” which was a factor unrelated to the case or controversy that they 

hypothetically would have litigated had the class action not been settled. Such factors are 

external to the predominance inquiry. See id. 130 Neither the Cobb Objectors nor the Allpar Objectors have made any arguments 

under the second requirement of Rule 23(b)(3), that “a class action is superior to other 

available methods for fairly and efficiently adjudicating the controversy.” BP has raised this 

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D.

BP and the Objectors have also argued that, by virtue of the Class 

Administrator’s interpretations of Exhibits 4B and 4C, the class notice 

distributed to absent class members has been rendered deficient. Under Rule 

23(c)(2)(B), “[t]he notice must clearly and concisely state in plain, easily 

understood language . . . the nature of the action,” “the definition of the class 

certified,” “the class claims, issues, or defenses,” and other items of information

relating to opting out, making objections, and the consequences of the 

judgment. Without tying their argument to any particular provision of Rule 

23(c)(2)(B), BP and the Objectors contend that class members should have been 

informed of the likelihood that the prospective claimants would include 

uninjured persons and entities. 

In our circuit, however, “[i]t is not required[] . . . that class members be 

made cognizant of every material fact that has taken place prior to the 

notice.”131 Moreover, as we held in In re Nissan Motor Corp. Antitrust 

Litigation, 552 F.2d 1088, 1104 (5th Cir. 1977), and as at least four of our fellow 

circuits have agreed, the class notice must describe the proceedings in 

argument but has not differentiated in any meaningful way between its “predominance” 

argument and “superiority” argument. Citing Amchem, BP argues essentially that the class 

action would not be superior to individual lawsuits because a class action only satisfies Rule 

23(b)(3) when it “would achieve economies of time, effort, and expense, and promote 

uniformity of decision as to persons similarly situated, without sacrificing procedural fairness 

or bringing about other undesirable results.” Amchem, 521 U.S. at 615. As we already have 

decided in the context of the predominance inquiry, however, the district court did not abuse 

its discretion in finding that this requirement was met in this case. See In re Oil Spill, 910 

F. Supp. 2d at 928. Accordingly, BP’s argument as to superiority under Rule 23(b)(3) is also 

rejected.

131 In re Corrugated Container Antitrust Litig., 611 F.2d 86, 88 (5th Cir. 1980) (quoting 

In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1104 (5th Cir. 1977)) (original 

alterations, quotation marks, and parentheses omitted).

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“objective, neutral terms.”132 The contention that BP and the Objectors now 

suggest should have been incorporated into the class notice is neither 

“objective” nor “neutral” but is an adversarial position that would have been

inappropriate for inclusion in a class notice.

Additionally, in Katrina Canal Breaches, in which we found a statement 

in a class notice to be “slightly misleading” regarding a point of Louisiana law, 

we held that the notice was not rendered deficient because “the statement as 

written [wa]s accurate in its essential point.”133 Here, the class definition was 

explained in the notice to include persons and entities with economic loss and 

property damage “arising out of the ‘Deepwater Horizon Incident.’” 

Accordingly, even if we were to accept that the class notice could have been 

improved by adding the word, “allegedly,” this minor legal ambiguity would

not be enough to render the class notice deficient. The district court therefore 

did not abuse its discretion in finding the class notice sufficient under Rule 

23(c)(2)(B).

E.

BP and the Objectors also argue that the Claims Administrator’s 

interpretations of Exhibits 4B and 4C preclude approval of the Settlement 

Agreement under Rule 23(e), which requires a district court to ensure that all 

class settlements are “fair, reasonable, and adequate.” Even the cases cited by 

BP, however, emphasize that the purpose of Rule 23(e) is “to protect the 

132 See Int’l Union, United Auto., Aerospace, & Agric. Implement Workers of Am. v. 

Gen. Motors Corp., 497 F.3d 615, 630 (6th Cir. 2007) (“Rule 23(e) does not require the notice 

to set forth every ground on which class members might object to the settlement . . . .”); see 

also Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 962-63 & n.7 (9th Cir. 2009) (requiring the 

class notice to be “scrupulously neutral”); In re Traffic Exec. Ass’n E. R.R., 627 F.2d 631, 634 

(2d Cir. 1980) (same); Grunin v. Int’l House of Pancakes, 513 F.2d 114, 122 (8th Cir. 1975) 

(same).

133 See In re Katrina Canal Breaches Litig., 628 F.3d 185, 199 (5th Cir. 2010).

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nonparty members of the class.”134 No case cited by BP or the Objectors 

suggests that a district court must also safeguard the interests of the 

defendant, which in most settlements can protect its own interests at the 

negotiating table. As we stated in Newby v. Enron Corp., 394 F.3d 296, 301 

(5th Cir. 2004), “[t]he gravamen of an approvable proposed settlement is that 

it be fair, adequate, and reasonable and is not the product of collusion between 

the parties.”135 As is abundantly clear from the current controversy 

surrounding the proper interpretation of Exhibits 4B and 4C, and as the 

district court expressly found,136 the Settlement Agreement was concluded in 

an arms-length negotiation that was free of collusion.

BP also makes a novel argument regarding our decision in Reed v. 

General Motors Corp., 703 F.2d 170 (5th Cir. 1983), in which we explained that

the application of Rule 23(e) should hinge on the analysis of six factors. These 

factors are: (1) the existence of fraud or collusion behind the settlement; (2) the 

complexity, expense, and likely duration of the litigation; (3) the stage of the 

proceedings and the amount of discovery completed; (4) the probability of 

plaintiffs’ success on the merits; (5) the range of possible recovery; and (6) the 

opinions of the class counsel, class representatives, and absent class 

members.137 In the present case, the district court conducted a lengthy and 

detailed analysis of the proposed settlement under each of the six Reed

factors.138 In the district court’s view, none of the Reed factors counseled 

134 Wilson v. Sw. Airlines, Inc., 880 F.2d 807, 818 (5th Cir. 1989) (quoting Piambino v.

Bailey, 610 F.2d 1306, 1327 (5th Cir. 1980)); see also All Plaintiffs v. All Defendants, 645 F.3d 

329, 334 (5th Cir. 2011) (citing Strong v. BellSouth Telecomm’cns, Inc., 137 F.3d 844, 849 (5th 

Cir. 1998)). 135 Newby, 394 F.3d at 301 (internal quotation marks omitted).

136 In re Oil Spill, 910 F. Supp. 2d at 931. 137 Reed, 703 F.2d at 172. 138 In re Oil Spill, 910 F. Supp. 2d at 931-39.

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against approving the settlement.

BP’s argument ignores the six Reed factors altogether. Rather, BP relies 

on a short quotation from Reed to suggest that district courts should also 

ensure that settlement agreements are based on a “fair approximation of [class 

members’] relative entitlement.” This quotation is clearly taken out of 

context.139 No other decision by our court or by any district court has ever cited 

Reed for such a proposition. Nor can any of the six Reed factors be easily 

related to the “fair approximation” analysis that BP proposes. Even 

attempting to analyze BP’s argument under the fifth factor discussed in Reed, 

“the range of possible recovery,” BP has identified no reason to believe that the 

payments made under the Settlement Agreement fall outside the class 

members’ range of “possible” recovery in litigation.

F. 

Last of all, BP and the Objectors have argued that, by virtue of the Class 

Administrator’s interpretations of Exhibits 4B and 4C, Rule 23’s implicit 

“ascertainability” requirement is not satisfied. As we held in Union Asset 

Management Holding A.G. v. Dell, Inc., 669 F.3d 632 (5th Cir. 2012): “[I]n order 

to maintain a class action, the class sought to be represented must be 

adequately defined and clearly ascertainable.”140 According to this argument,

the Claims Administrator’s two Policy Announcements render the class 

definition irrational and therefore violate the ascertainability requirement. 

However, as we found in Rodriguez, “the possibility that some [claimants] may 

fail to prevail on their individual claims will not defeat class membership” on 

the basis of the ascertainability requirement.141 Accordingly, this final 

139 See Reed, 703 F.2d at 175.

140 Dell, 669 F.3d at 639 (5th Cir. 2012) (quoting DeBremaecker v. Short, 433 F.2d 733, 

734 (5th Cir. 1970) (per curiam)).

141 Rodriguez, 695 F.3d at 370 (internal quotation marks omitted).

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argument by BP and the Objectors is rejected. In the absence of any other 

arguments addressing this implicit component of Rule 23, we find that the 

district court did not abuse its discretion in finding that the settlement class 

satisfies the ascertainability requirement.

V.

To conclude, the numerous arguments that BP and the Objectors have 

raised with respect to each of the provisions of Rule 23 are variants, for the 

most part, of a single argument. Based on our previous decisions, we would 

reject this argument even if we could consider BP’s evidence and accept its

factual premise, which we cannot. Under Mims and Rodriguez, “[c]lass 

certification is not precluded simply because a class may include persons who 

have not been injured by the defendant’s conduct.”142 The result is no different, 

moreover, under Article III. As we wrote in Cole, “it is sufficient for standing 

purposes that the plaintiffs seek recovery for an economic harm that they 

allege they have suffered,” because we “assume arguendo the merits” of their 

claims at the Rule 23 stage.143

For the foregoing reasons, therefore, we AFFIRM the district court’s 

order of December 21, 2012.

AFFIRMED.

142 Mims, 590 F.3d at 308; see Rodriguez, 695 F.3d at 370 (“[T]he possibility that some 

[absent class members] may fail to prevail on their individual claims will not defeat class 

membership.”).

143 Cole, 484 F.3d at 723 (emphasis added) (quoting Parker, 478 F.3d at 377 (internal 

quotation marks omitted)).

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EMILIO M. GARZA, Circuit Judge, dissenting:

The majority finds Article III causation satisfied by language in the 

complaint and Settlement Agreement, notwithstanding the Claims 

Administrator’s controlling interpretation rendering this language void,

eliminating all causation requirements for a broad swath of the class and 

allowing individuals or entities to participate in the settlement even though 

they lack a justiciable claim. “Rule 23’s requirements must be interpreted in 

keeping with Article III . . . .” Amchem Products, Inc., v. Windsor, 521 U.S. 591, 

613 (1997). Standing is an essential component of Article III’s case-orcontroversy requirement, and it mandates that “there must be a causal 

connection between the injury and the conduct complained of.” Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560 (1992). That is, whether a class 

member was economically injured is immaterial if that loss was not caused by 

the oil spill. Absent an actual causation requirement for all class members, 

Rule 23 is not being used to simply aggregate similar cases and controversies, 

but rather to impermissibly extend the judicial power of the United States into

administering a private handout program. Because Article III does not permit 

this, I respectfully dissent. 

I

While the three elements of Article III standing—injury, causation, and 

redressability—remain constant throughout the litigation, the standard of 

proof necessary to demonstrate these elements becomes progressively more 

demanding through “the successive stages of the litigation.” Lujan, 504 U.S. at 

560; ante, at 9. I agree with the majority we must evaluate standing according 

to the standard of proof for the Rule 23 class certification and settlement

approval stage. I disagree with the majority, however, that Article III standing 

is satisfied in this case under the Denney test. I also disagree that Kohen, 

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which by its facts addresses only pre-trial certification of a litigation class, 

applies to the certification of a settlement class.

A

In Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006), a class 

action settlement case like ours, the Second Circuit determined that “[n]o class 

may be certified that contains members lacking Article III standing. The class 

must therefore be defined in such a way that anyone within it would have 

standing.” Id. (internal citations omitted) (emphasis added). The Denney test

fundamentally recognizes that a class certification decision opens the doors of 

federal court to all members of that class. The federal courts are only open to 

justiciable cases.1 Thus, Denney correctly appreciates that, at the end of 

litigation, settlement class certification stage, courts should verify that the

class definition is limited to those with justiciable cases, that is, to those that 

would have standing. As the majority notes, the touchstone of this test is 

whether the class definition encompasses only persons and entities that 

possess Article III Standing. Ante at 16. 

The majority holds that the extant settlement class is necessarily limited 

to those class members with claims causally connected to the oil spill, that is, 

to those with standing. Id. It bases this holding exclusively upon Section 

1.3.1.2 of the Class Definition, which is contained in both the Amended 

Complaint and the Settlement Agreement. It totally, and erroneously, ignores 

language in other documents, including Exhibit 4B and the Claims 

Administrator’s Policy Announcement, which materially affects the status of 

the causation requirement. Section 1.3.1.2 summarizes an economic damage 

1 See, e.g., Warth v. Seldin, 422 U.S. 490, 498 (1975) (“[Standing] is founded in concern 

about the proper—and properly limited—role of the courts in a democratic society. [It] is the 

threshold question in every federal case, determining the power of the court to entertain the 

suit.”). 

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category for “[l]oss of income, earnings or profits suffered by Natural Persons 

or Entities as a result of the DEEPWATER HORIZON INCIDENT.” (emphasis 

added). Certainly, this language encompasses a causation requirement.2 

However, the inquiry does not end there. Other documents with significant 

bearing on the Class Definition’s treatment of causation must also be 

examined.

Section 1.3.1 of the Class Definition incorporates by reference Exhibit 

4B: “Causation Requirements for Business Economic Loss Claims.” Section 1 

of Exhibit 4B establishes that certain individuals and entities, based on their 

location or the nature of their enterprise, “are not required to provide any 

evidence of causation.”3 These groups are entitled to a presumption of 

causation.4 Construed together, Section 1.3.1.2 of the Class Definition and 

Section 1 of Exhibit 4B establish that individuals and entities alleging a loss 

caused by the oil spill need not submit evidence of that causation when making 

a claim for payment.5 Such a construction seemingly preserves a threshold

2 Under the Oil Pollution Act, 33 U.S.C. § 2702(a), liability extends to removal costs 

and specified damages categories “that result” from an oil discharge incident. 

3 For example, Section I.1 states, “If you are a business in Zone A, you are not required 

to provide any evidence of causation unless you fall into one of the exceptions agreed to by 

the parties, and listed in footnote (1).” Section I.5 states, “If you are in Zone A, B, or C, and 

you meet the “Charter Fishing Definition” you are not required to provide any evidence of 

causation.” See infra Part II (explaining why geographic and enterprise-based requirements 

alone do not comply with the cause-in-fact requirement of Article III and the substantive law 

governing the class claims). 

4 These groups are in contrast to other groups of claimants that must provide evidence 

of causation according to the requirements of one of several revenue loss models defined in 

the Settlement Agreement—e.g., the “Modified V-Shaped Revenue Pattern,” or “Proof of 

Spill-Related Cancellations.”

5 Exhibit 4B’s presumption of causation substitutes a claimant’s geographical location,

or the nature of a claimant’s enterprise, for proof of causation. There is an open question as 

to whether this substitution, even in conjunction with Section 1.3.1.2, would satisfy Article 

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causation requirement while simply eliminating the need for specific evidence 

to prove it when making a settlement claim. In other words, causation 

ostensibly remains an element of a claim even though proof is not a central 

feature of the claims process. Significantly, Section 1.3.1.2 and Section I of 

Exhibit 4B does not end our inquiry: The Claims Administrator has issued a 

controlling interpretation of the Class Definition’s causation requirements. 

The Claims Administrator is specifically charged with implementing and 

administering the Settlement in Section 4.3.1 of the Settlement Agreement.

Pursuant to this charge he issued an interpretive decision about causation for 

economic losses, in which he explained that he would:

“compensate eligible Business Economic Loss and Individual 

Economic Loss claimants for all losses payable under the terms of 

the Economic Loss frameworks in the Settlement Agreement, 

without regard to whether such losses resulted or may have resulted 

from a cause other than the Deepwater Horizon oil spill provided 

such claimants have satisfied the specific causation requirements 

set out in the Settlement Agreement.” (emphasis added).

The Claims Administrator further determined that “the Settlement Agreement 

does not contemplate that the Claims Administrator will undertake additional 

analysis of causation issues beyond those criteria that are specifically set out 

in the Settlement Agreement.” In short, the Claims Administrator established

that the Settlement Agreement requires no proof of causation, beyond the 

specific requirements of Exhibit 4B. And, the district court has repeatedly 

affirmed this determination.6 Essentially, this interpretation renders Section 

III’s cause-in-fact element. However, on the facts before us, the Claims Administrator’s 

interpretation has effectively eliminated Section 1.3.1.2’s “as a result of” language.

6 The Claims Administrator issued the Policy Announcement on October 10, 2012, just 

over two months before the District Court entered the final class certification order. On 

December 12, 2012, the district court acknowledged awareness of the interpretation in an 

email to the parties. And, on April 9, 2013, the district court issued an order adopting the 

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1.3.1.2’s causation language nugatory—all that matters is Exhibit 4B. There 

is no longer a threshold requirement that the economic losses stand “as a result 

of” the Deepwater Horizon incident, and at least five groups7 of Business 

Economic Loss claimants will never be required to provide any proof of 

causation. That is, there is no causation requirement in the Settlement 

Agreement—as actually implemented—for a significant segment of the class. 

Surely, the words “as a result of” remain in the text of the Class Definition, the 

Amended Complaint, and the Settlement Agreement, but, in truth, they have 

no significance to determining who is eligible to participate in the settlement. 

Consequently, this class can encompass individuals or entities who could 

never truthfully allege or establish standing, at any stage of the litigation. 

Thus, it fails under Denney. As explained in Lujan, Article III standing

irreducibly requires that the injury be “fairly traceable to the challenged action 

of the defendant, and not the result of the independent action of some third 

party not before the court.” 504 U.S. at 660 (internal quotations and alterations 

omitted). The elimination of a causation requirement for these Business 

Economic Loss claimants renders the Settlement Agreement unconstitutional 

in this respect. 

At the settlement class certification stage, Denney does “not require that 

each member of a class submit evidence of personal standing.” Denney 443 F.3d 

at 263. The test is whether each member contemplated by the definition can 

allege standing. Ante at 21. And for the purposes of standing allegations, we 

interpretation. On December 24, 2013, responding to the remand in No. 13-30315 (Before 

Judges Dennis, Clement, and Southwick), the district court issued an order finding “that 

whether a business economic loss is “as a result of” the Deepwater Horizon incident for 

purposes of the Settlement is determined exclusively and conclusively by Exhibit 4B.” See 

Order and Reasons [Responding to Remand of Business Economic Loss issues], 2:10-MD2179, ECF No. 12055, at 18. 

7 See Exhibit 4B, §§ I.1–5.

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“assume arguendo the merits of [the] legal claim.” Cole v. General Motors 

Corp., 484 f.3d 717, 723 (5th Cir. 2007). But here, at the settlement class

certification stage, these standards are not met. Because the interpretation 

has nullified the causation language of Section 1.3.1.2 of the complaint, there 

is no guarantee that each member of the class meets the standing 

requirements of Article III. Thus, it is quite possible that claimants eligible 

for Exhibit 4B’s presumption of causation can fully participate in the 

settlement even though their injuries, if any, are not fairly traceable to the 

Deepwater Horizon incident. Cf. Lujan, 504 U.S. at 560. Denney requires that 

the class must “be defined in such a way that anyone within it would have 

standing.” Denney, 443 F.3d at 264 (emphasis added). Absent a causation

requirement for certain segments of Business Economic Loss claimants, this

Class Definition includes those who would not.8

The majority avoids the fatal impact of the Policy Announcement by 

concluding that “the evidentiary standard to be applied by the Claims 

Administrator [ ] is not a matter of Article III standing,” but rather “a question 

of interpreting the Settlement Agreement and applying it to each individual 

claim . . . .” Ante at 24. If this case involved only a question of degree—say, 

what evidence is sufficient to establish causation—I might agree with this 

8 On appeal, BP has presented particular evidence that the Administrator has made 

awards to persons and entities that “likely were not injured” by the oil spill. Ante, at 19. The 

majority holds that this evidence cannot be considered on appeal because it was not presented 

to the district court. Id. Taking this as true, there is no need to evaluate specific evidence to 

determine that the class definition, as currently interpreted, can include individuals or 

entities that cannot trace their injury to the oil spill. Looking at the totality of the relevant 

documents, it is clear that the Class Definition is overbroad. Exhibit 4B creates a 

presumption of causation for those that work in a specific area or occupation, and the “as a 

result of” language, stripped of meaning by the Claims Administrator, no longer bounds these 

individuals or entities. Thus, the class definition directly includes business claimants for 

which there is no causation requirement. Geographic and enterprise-based factors alone, all 

that are required under Section I of Exhibit 4B, are insufficient to satisfy the causal 

connection required by Article III. See infra Part II. 

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conclusion. In that case, some form of causation would remain intact. However, 

the issue here is not what evidence is sufficient, but rather whether causation 

has been entirely written out of the settlement. Certainly, this is within the 

bounds of an Article III inquiry. See Lujan, 504 U.S. at 560 (holding that a 

causal connection is in irreducible component of Article III standing). 

Furthermore, the majority strongly suggests that the Claims 

Administrator’s interpretation is not before us in this appeal. Ante at 23. While

the policy interpretation is not literally part of the district court’s December 

21, 2012 certification order, the document directly before us, it is clearly an 

integral aspect of how the Class Definition and the Settlement Agreement 

operate. The Denney test for verifying Article III standing at the class 

settlement stage of litigation requires the reviewing court to analyze the class 

definition. It is not possible to perform a true and accurate analysis while 

ignoring the controlling interpretation of this definition.9

The Claims Administrator’s interpretation must be treated as part and 

parcel of the Settlement Agreement and Class Definition for several reasons. 

First, the very district court that certified the class and oversees the 

settlement’s implementation has repeatedly affirmed this interpretation.10

Second, the interpretation issued before the district court entered the final 

certification order and the record demonstrates the district court was aware of 

this.11 Third, the Settlement Agreement provides that the Claims 

9 The majority further suggests that the Claims Administrator’s interpretation of 

causation in the class definition has been waived on appeal because “no party ever formally 

objected” to it, and because BP initially took “no position on the relevance vel non” of the 

policy interpretation. Ante at 6–7. Be this as it may, “we are certainly free ourselves to raise 

an issue of standing as going to Article III jurisdiction . . . .” Lewis v. Casey, 518 U.S. 343, 394 

(1996) (quoting Mount Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 278, (1977)). 

10 See supra note 6.

11 Id.

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Administrator will have authority to make policy decisions and to issue 

guidance. It is illogical to disregard a pronouncement on the meaning of the 

Settlement issuing from the very entity the Settlement established for this 

purpose. 

Lastly, Article III cannot be so easily duped by sleight of hand. Here, the 

district court certified a class based on the written Class Definition in the 

Amended Complaint and Settlement Agreement. This definition initially

included “as a result of”—a clear causation requirement. Because of the 

Claims Administrator’s interpretation, it no longer does. The district court 

certified a class settlement agreement that, in pertinent part, no longer exists. 

And now, on appeal, the majority limits its standing analysis to the defunct 

text of Section 1.3.1.2. In essence, this analysis finds Article III satisfied by 

what has been transformed into an empty pleading allegation. But Article III 

demands more. A key function of the standing requirement is to “identify those 

disputes which are appropriately resolved through the judicial process.” 

Whitmore v. Arkansas, 496 U.S. 149, 155 (1990). Claims for damages that are 

not “fairly traceable to the defendant’s conduct,” Lujan, 504 U.S. at 660, are 

not such disputes. Today’s opinion improperly welcomes them into federal 

court.

B

The majority further determines that this settlement class certification 

satisfies Article III standing under the Kohen test, which requires that the 

named plaintiffs—as opposed to absent class members—can satisfy Article 

III’s standing requirements. Kohen, 571 F.3d at 676; ante at 15. While I agree 

that the named plaintiffs’ standing is uncontested in this case, Kohen does not 

apply. As also observed by Judge Clement in Deepwater Horizon I, 732 F.3d 

at 344 n.12, Kohen does not concern an end of litigation settlement class 

certification. This distinguishing factor is crucial. 

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In Kohen, the court determined that the “possibility or indeed 

inevitability” that the defined class will “often include persons who have not 

been injured by the defendant’s conduct” does not preclude class certification. 

Thus, the court looked only to the named plaintiffs to satisfy Article III 

standing. However, Kohen concerns a pre-trial litigation class certification, 

not a final settlement class certification, and in this presupposes that there 

will be a further stage where the Article III standing requirements will be 

proven up. Kohen, 571 F.3d at 677 (“If the case goes to trial, this plaintiff may 

fail to prove injury.”). The Kohen opinion relies on the fact that jurisdiction 

alleged at the pleading stage of a class action litigation must eventually be 

substantiated. Id. But, in a settlement class certification, like that at bar, 

there will be no additional stages for substantiating standing. The settlement 

ends the litigation. Accordingly, the Kohen “named plaintiffs only” formula for 

evaluating Article III standing is inapplicable here. 

Additionally, the Kohen court actually embraces Denney’s focus on the 

class definition for verifying Article III standing. Kohen specifically rejected 

defendant-appellant’ PIMCO’s argument that the district court needed to 

verify each class members’ individual standing before certifying the class—

that is, absent class members needed to prove standing before certification. Id. 

at 676. According to the Kohen court, the burden of proving standing at the 

pre-trial class certification stage lies with the named plaintiffs alone. But 

Kohen simultaneously recognizes that a “class should not be certified if it is 

apparent that it contains a great many persons who have suffered no injury at 

the hands of the defendant . . . .” Id. at 677. (emphasis added). The court 

specifically noted that “if the class definition clearly were overbroad, this would 

be a compelling reason to require that it be narrowed.” Id. at 678. So, without 

concern for proof of standing, Kohen recognizes that, even at the pre-trial class 

certification stage, a certification does not comply with Article III if it embraces 

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a swath of claimants who cannot claim injury-in-fact, causation, or 

redressability. Here, in light of the controlling interpretation, the class 

definition does exactly that for certain groups of Business Economic Loss 

claimants. See supra Part I.A.

C

In conclusion, this interpretation creates an overbroad class definition,

which “includes people who have no legal claim whatsoever.” Sullivan v. DB 

Investments, Inc., 667 F.3d 273, 340 (3d Cir. 2011) (Jordan, J. dissenting).

Under its terms, a segment of claimants could enter federal court and receive 

redress for injuries that need not have been caused by the defendant’s conduct. 

Without a causation requirement for class membership, this Settlement 

Agreement encompasses individuals and entities that do not possess the 

requisite justiciable case or controversy. From an administrative perspective

the elimination of causation may be more efficient, but it is also violates Article 

III, which does not permit the federal courts to administer private handout 

programs. Accordingly, the district court’s Rule 23 certification is not in 

keeping with Article III constraints. See Amchem, 521 U.S. at 613.

II

In addition to straying beyond Article III jurisdictional constraints, the 

Claims Administrator’s interpretation, by eliminating the causation

requirement, violates at least two aspects of Rule 23, and runs afoul of the 

Rules Enabling Act, 28 U.S.C. § 2702(b). 

A

Rule 23(a)(2) requires, as a necessary prerequisite to class certification, 

that “there are questions of law or fact common to the class.” In Wal-Mart 

Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011), the Supreme Court 

interpreted this provision to require that the members of the class have 

“suffered the same injury.” This requires that the class members’ claims 

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“depend upon a common contention,” the “truth or falsity [of which] will resolve 

an issue that is central to the validity of each one of the claims in one stroke.” 

Id. (emphasis added). The majority asserts that the commonality requirement 

is satisfied by myriad questions of law and fact about BP’s injurious conduct. 

See ante, at 30–31 (listing common questions). Certainly, these contentions are 

central to many class member’s claims. But Rule 23(a)(2) and Wal-Mart

require more—the common contentions must go to the validity of each one of 

the claims. Because this class includes a segment of claimants whose injuries 

need not have been caused by the oil spill, this cannot be so. For example, 

“[w]hether BP used an improper well design that unreasonably heightened the 

risk [of an incident]” says nothing about the validity of a claim for economic 

injuries caused by factors other than the oil spill. As long as the class 

impermissibly aggregates those whose injuries were purportedly caused by the 

oil spill with those without any arguable claim of such causation, questions 

concerning BP’s liability are insufficient to satisfy Rule 23(a) commonality. 

The same argument applies with full force to the Rule 23(a)(3) 

requirement that “the claims or defenses of the representative parties are 

typical of the claims or defenses of the class.” Cf. ante, at 31 n.92. The Supreme 

Court has observed that the “commonality and typicality requirements of Rule 

23(a) tend to merge.” Wal-Mart, 131 S. Ct. at 2550–51 n.5. The majority holds 

that typicality is satisfied because “the class representatives—like all class 

members—allege economic and/or property damage stemming directly from 

the Deepwater Horizon spill.” Ante, at 31 n.92. (quoting In re Oil Spill by Oil 

Rig Deepwater Horizon in Gulf of Mexico, on April 20, 2010, 910 F. Supp. 2d 

891, 915 (E.D. La. 2012)). This disregards the unavoidable fact that causation, 

initially alleged in Section 1.3.1.2, has been effectively written out by the 

Claims Administrator. Given the Claims Administrator’s controlling 

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interpretation, all class members do not allege injury “stemming directly” from 

the oil spill. Cf. id. 

Rule 23 certification requires that the proposed class meets all the 

prerequisite requirements of Rule 23(a). See W. RUBENSTEIN, A. CONTE & H.

NEWBERG, NEWBERG ON CLASS ACTIONS § 3:1 (5th ed. 2011). Commonality and 

typicality are absent here.

B

The Rules Enabling Act requires that that the rules of procedure “shall 

not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2702(b). The 

class action rules must be applied in keeping with this mandate. See Amchem, 

521 U.S. at 613. It follows that Rule 23’s aggregation function cannot be used 

to “create new rights and then settle claims brought under them.” Deepwater 

Horizon I, 732 F.3d at 342; see Sullivan, 667 F.3d at 343 (Jordan, J. dissenting)

(“Rule 23 [serves] to efficiently handle claims recognized by law, not to create 

new claims.”).

This Settlement Agreement resolves claims arising under General 

Maritime Law (tort principles of federal common law) and the Oil Pollution 

Act, 33 U.S.C. § 2702(a). Each of these claims contains some sort of causation

element. In order to prevail in a negligence action, a plaintiff must establish 

that the defendant’s breach of duty is the but-for and proximate cause of the 

injury complained of.12 Under the Oil Pollution Act, a plaintiff must 

demonstrate that the costs and damages sought “result from” an oil spill 

incident. Thus, under the controlling substantive law, there is no right to 

recover damages for injuries not caused by the defendant’s breach. This 

12 The Amended Class Action complaint asserts claims for negligence, gross negligence 

and willful misconduct, and breach of contract under general maritime law. The breach of 

contract claims pertain only to Vessels of Opportunity (“VoO”) claimants. 

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settlement, however, allows individuals and entities whose injuries were not

caused by the oil spill to claim and receive damage payments. See supra, Part 

I.A. That is, the set of eligible claimants is not congruent with the set of actual 

(those injured by the spill) claimants, the latter being merely a subset of the 

former. Thus, the settlement eliminates an essential component of the

underlying cause of action, creating a legal right for some class members where 

none exists at law. This violates the Rules Enabling Act—by bringing

claimants without causally related injuries into the class, Rule 23’s

aggregation function has been improperly used to expand substantive rights.13

III

What makes this case unique, perhaps, is that causation is contemplated 

on the face of the core documents—the Amended Complaint, Class Definition, 

and the Settlement Agreement—but eliminated in application by the Claims 

Administrator’s interpretation. In evaluating whether Article III’s causation 

requirement for standing has been properly demonstrated at the settlement 

class certification stage, I would look to the class definition as it has been 

authoritatively interpreted, not simply as it is ostensibly written. Today, the 

majority takes another path, turning a blind eye to the Claims Administrator’s 

interpretation. 

The concerns identified in this dissent each stem from a common 

problem: causation has been eliminated for a broad swath of Business 

Economic Loss claimants. For the foregoing reasons, this requires that the 

class be decertified. However, this does not necessarily mean that a Settlement 

Agreement, writ large, is entirely unworkable or that Rule 23 is inapplicable. 

I simply observe that this attempted global settlement fails in a narrow, but 

13 See Deepwater Horizon I, 732 F.3d at 339–44 (offering additional insights into the 

impact of the causation policy on Article III, Rule 23 and the Rules Enabling Act).

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significant, regard. I would vacate the class certification and Settlement 

Agreement, and remand to allow the parties and the district court to design a 

solution that complies with Article III, Rule 23, and the Rules Enabling Act.

Respectfully, I dissent. 

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