*

This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be

cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1

and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

April 20, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FLYING J INC., a Utah

corporation; TCH, LLC, a Utah

corporation; CFJ PROPERTIES, a

Utah partnership; TON SERVICES,

INC., a Utah corporation; and TFJ,

a Utah partnership,

Plaintiffs-Appellants, No. 07-4279

v. (D. Utah)

COMDATA NETWORK, INC., a

Maryland Corporation,

Defendant-Appellee.

 (D.C. No. 1:96-CV-00066-BSJ)

ORDER & JUDGMENT*

Before HENRY, Chief Judge, TACHA and MURPHY, Circuit Judges.

Appellants, Flying J Inc. and its affiliated entities, TCH, CFJ

Properties, TON Services, and TFJ, which we will collectively refer to as

“Flying J,” seek to enforce a settlement agreement with Comdata Network
-2-

Inc. Both Flying J and Comdata provide trucking companies with fuel cards

and maintain networks that process card transactions at various fuel

merchants. After Flying J sued Comdata for antitrust violations, Comdata

granted Flying J a license pursuant to a settlement agreement to use its fuel

card processing system; Comdata construed the license as applying where

merchants consented to the arrangement. Flying J disagreed with this

construction and filed a motion to enforce the settlement agreement,

essentially seeking access to the merchants who did not consent. Flying J

initially proposed two models for processing card transactions that would

accord with its view of the settlement agreement: the “primary model” and

the “dual-processing model.” Prior to the hearing on its motion, Flying J

asked the district court not to consider the primary model. The district court

ruled in Flying J’s favor and ordered Comdata to implement the dualprocessing model. We overturned this ruling. See Flying J Inc. v. Comdata

Network, Inc., 405 F.3d 821 (10th Cir. 2005) (“Flying J I”). On remand, the

district court declined Flying J’s renewed request to put into place the

primary model. Dismissing the suit and finding Comdata to be the

prevailing party, the district court awarded Comdata attorney’s fees in

accordance with the settlement agreement. 

Flying J now appeals this decision, arguing that the district court erred

when it refused to implement the primary model and when it refused to
-3-

reduce Comdata’s attorney’s fees award. Because the license at issue and

our precedent preclude implementation of the primary model, we hold that

the district court’s decision was correct. We also hold that its award of

attorney’s fees was well within its discretion. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm the decision of the district court. Pursuant to

the automatic stay provision of 11 U.S.C. § 362, judgment against Flying J

Inc. (but not TCH, CFJ Properties, TON Services, and TFJ) is stayed

pending further order of this court. 

I. BACKGROUND

Though we have previously stated the background for this case in

great detail, we will restate an abbreviated version of the facts and include

the procedural history relevant to this appeal. See Flying J I, 405 F.3d at

825-29. 

A. Factual Background

Flying J issues “TCH MasterCard” credit cards primarily to trucking

companies who then give the cards to truck drivers to purchase fuel and

other necessities. TCH MasterCards participate in the MasterCard network

and may therefore be used as payment anywhere MasterCard is accepted. 

Unlike regular MasterCards though, the TCH MasterCards are meant to
-4-

function as so-called proprietary cards–allowing trucking companies to

obtain instant information about the card’s use and control what truckers

purchase with the cards. However, the MasterCard network does not

process the card’s proprietary functions, requiring an additional card

processing network. Comdata is a rival proprietary card issuer. Comdata

operates the Trendar Network that can process both payments and

proprietary functions. This appeal concerns processing of TCH

MasterCards’ proprietary functions over Comdata’s Trendar Network. 

Pursuant to a settlement agreement, Comdata granted TCH, Flying J

Inc.’s affiliate, a license, the “Trendar License,” to use Comdata’s Trendar

Network to process Flying J’s TCH card transactions. Id. at 827 (“In short,

the Trendar License provides TCH access to the Trendar System, and it

enables TCH to effect data capture and purchase controls in transactions

involving the TCH MasterCard.”). Based on this license, Comdata

configured the Trendar Network to process TCH MasterCards as proprietary

cards, but only where merchants consented. Not surprisingly, “[m]any

Flying J competitors, such as Pilot, Petro, and Travel Centers of America”

choose not to accept the TCH MasterCard as a proprietary transaction. Id.

Flying J believes that the Trendar License gives it access to these

competitors, merchants that otherwise do not consent to accepting the

proprietary functions of the TCH MasterCard. 
-5-

B. Procedural Background

Flying J filed a motion to enforce the settlement agreement to require

Comdata to comply with its understanding of the Trendar License. Flying J

initially submitted two models to bring Comdata into compliance with its

view of the license. First, they argued for a “dual-processing model,” in

which the processing of the proprietary functions would occur on the

Comdata network and the payment processing would occur on the

MasterCard network. See Aplts’ Br. at 8. They also sought to effectuate a

“primary model,” in which the processing of the proprietary function and

payment occur completely on Comdata’s network, separate from

MasterCard’s network. See id. at 7. Comdata processes its own cards using

something similar to this primary model. 

Before the district court decided the motion, Flying J abandoned the

primary model because it failed to meet MasterCard requirements. The TCH

MasterCard is part of the MasterCard network and therefore must conform

to MasterCard regulations. MasterCard does not allow proprietary

transactions without prior consent of merchants. See Flying J I, 405 at 828. 

On the first day of the bench trial on the original motion to enforce the

settlement agreement, Flying J conceded that MasterCard had not consented

to the primary model and therefore stated that the primary model claims

were “moot.” Aplt’s App. vol. V, at 1413-14; (Hr’g on Motion to Enforce). 
-6-

1. The District Court Ruled in Flying J’s Favor.

Flying J nonetheless won in the district court. Aplt’s App. vol. I, at

230-62. The district court granted Flying J’s motion to enforce the

settlement agreement and ordered Comdata to implement the dualprocessing method. Comdata appealed. Comdata, faced with implementing

the district court’s order while its appeal was pending, filed a motion to

clarify with the district court. Comdata asked the court to clarify that

Comdata need not disguise “TCH MasterCard transactions” as “Comdata

transactions” for merchants. The district court clarified that it was not

asking Comdata to label TCH MasterCard transactions as Comdata

transactions. Aplt. App. vol. II, at 429.

2. The Tenth Circuit Overturned the District Court. 

Meanwhile, Comdata’s appeal to the Tenth Circuit progressed. 

Ultimately, we disagreed with the district court order requiring

implementation of the dual processing model. We held that the language in

the license was ambiguous. Consequently, we examined the expectations of

both parties and determined that both Flying J and Comdata intended TCH

MasterCards to be processed similar to the way Comdata processes its own

cards and that neither party contemplated dual processing of TCH card
2

Specifically, Flying J claimed the following issues remained :

A. Does TCH have the following contract rights for processing of

TCH MasterCard transactions using the Trendar System under the

Trendar License (subject to obtaining MasterCard Approval)?

1. The TCH MasterCard will be treated like a Comdata

MasterCard at truck stop merchants that use the

Trendar System or its successors.

-7-

transactions because the idea was not yet conceived. Flying J I, 405 F.3d at

839. Further, we held that Comdata had produced “substantial evidence

indicating that it did not contemplate or intend that the Trendar License

would lead to proprietary processing of TCH MasterCards at unaffiliated

merchants, much less that this would be accomplished through a dual

processing model.” Id. at 835. Finding that the district court clearly erred,

we reversed and remanded for proceedings consistent with our opinion. Id.

at 839. 

3. Upon Remand, the District Court Found in Favor of Comdata.

Upon remand, Flying J filed a “Statement of Remaining Issues to be

Decided in this Case on Remand.” In it, Flying J asked the district court to

determine that Comdata must treat TCH MasterCards like Comdata

MasterCards and requested that the district court prescribe steps for

Comdata to take to get approval from MasterCard for such a system.2
2. Comdata will configure the Trendar System to treat

TCH MasterCard transactions the same way that it

treats Comdata MasterCard transactions.

3. In treating TCH MasterCards the same ways as it

treats Comdata MasterCards, Comdata will construe

TCH MasterCards as having the same rights,

privileges, and responsibilities as a type of “CDN

Card” (as that term is used in the form of Comchek

Service Center Agreement marked as Exhibit 2 at the

deposition Michael Sheridan gave on December 19,

2002 and in similar service center or merchant

agreements). Thus, the TCH MasterCard will be

treated as a type of CDN Card for purposes of all of

Comdata’s current and future service center or

merchant agreements with travel plazas or truck stops

that participate in the Comchek Network and use the

Trendar System.

4. Comdata will route TCH MasterCard transactions

directly through TCH in the manner depicted on the

Exhibit labeled “TAB MasterCard transactions at

Trendar Locations; Settlement Through Comdata,”

[attached to May 3, 2003 letter in Exhibit A] with

authorization requests and confirmations and financial

settlement running from the Trendar System through

Comdata in the manner depicted in that diagram.

5. TCH MasterCard transactions will be processed

through the Trendar System as single transactions just

like Comdata MasterCard transactions.

B. What specific steps must Comdata take to help TCH obtain

approval from MasterCard for the “primary model” based on its

obligation under Article 4.2 of the Trendar License, which requires

Comdata to use its “best reasonable efforts to obtain any consents

required by third party network providers?”

Aplt’s App. vol. IV, at 976 (Flying J’s Statement of Remaining Issues). 

-8-

In asking the court for further consideration, Flying J sought to
-9-

effectuate the “primary model.” However, this model required

MasterCard’s consent, which MasterCard still withheld where merchants did

not consent. Flying J argued that it does not need individual merchants’

consent and should be allowed to piggyback on the consent given to

Comdata. The district court looked warily (and unfavorably) on this tactic,

saying it was “somewhat reminiscent of the fabled Trojan horse.” See

Flying J Inc. v. Comdata Network, Inc., No. 1:96-CV-066BSJ, 2007 WL

3550342, at *3 (D. Utah Nov. 15, 2007) (“Flying J II”).

The district court held that the Tenth Circuit rejected this “Trojan

horse model” when it decided that the settlement agreement did not require

Comdata to use “any feasible means” to force merchants to accept TCH

MasterCard proprietary transactions. Id. at *4 (citing Flying J I, 405 F.3d at

839). The district court similarly found that Flying J’s request for the court

to prescribe specific steps to help Flying J obtain third party consents was

raised for the first time after remand. Therefore, this issue was “a matter for

another day, and probably another lawsuit.” Id. Thus, the district court

held that the Tenth Circuit’s decision in Flying J foreclosed further

consideration of plaintiff’s arguments.

4. The District Court Awarded Attorney’s Fees.

After concluding that Comdata was the prevailing party, the district
-10-

court awarded attorney’s fees in accordance with the parties’ prior

settlement agreement. Comdata filed a detailed motion for attorney’s fees

with supporting declarations and exhibits. Flying J filed a Response

challenging Comdata’s attorney’s fee claim as excessive. After holding an

evidentiary hearing, the district court issued an order noting some concerns

but nonetheless granting almost all Comdata’s claimed attorney’s fees.

5. Flying J Now Appeals. 

Flying J filed this appeal arguing first that the district court should

have directed Comdata to comply with the primary model. Flying J argues

that the district court misinterpreted both the district court’s response to the

motion to clarify–a different district judge presided on remand–and the

Tenth Circuit opinion. Flying J asserts that it is still an open question

whether Comdata should be forced to implement the primary model.

Second, Flying J argues that the district court’s award of attorney’s

fees is excessive. Flying J argues that the award is unreasonable, especially

based on what it considers “evidence of inefficiency and overlawyering

based on the tasks undertaken and a comparison to [its own] total fees

during the same time.” Aplts’ Br. at 3. Flying J also argues the fee should

be reduced due to Comdata’s attorneys’ “extensive use of block billing.” Id.

According to Flying J, this court should hold as a matter of law that
-11-

extensive use of block billing requires a reduction in the fee. 

II. DISCUSSION

Reviewing the license at issue and our prior case law de novo, we hold

that Flying J is not entitled to implementation of the primary model. Such

an order would give Flying J access to merchants who do not consent to the

proprietary functions of the TCH MasterCard, contravening both the license

and the law of the case. Furthermore, Flying J’s previous explicit

abandonment of this argument at the district court level precludes its current

consideration.

Regarding the attorney’s fee award, we hold that there is no indication

that the district court abused its discretion. We also decline to establish a

rule of law requiring a reduction in fees where attorneys have “block

billed.” 

A. The District Court Did Not Err in Refusing to Implement the Primary

Model.

The district court’s conclusions about the scope of this Court’s

remand involve questions of law–interpreting previous rulings and the

underlying settlement agreement and license–that are reviewable de novo. 

See Scrivner v. Sonat Exploration Co., 242 F.3d 1288, 1291 (10th Cir.

2001); In re Gledhill, 76 F.3d 1070, 1079 (10th Cir. 1996).
-12-

Flying J is not currently entitled to access merchants who do not

consent to process the proprietary functions of the TCH MasterCard. The

portion of the license at issue states:

All TCH Card Transactions processed through the Trendar

System, including without limitation TCH Cards bearing a

MasterCard or Visa brand, shall be cleared directly through TCH

as opposed to any third party network, such as and without

limitation the MasterCard network or Visa network, to the fullest

extent permitted by the policies, rules, or regulations, as amended

from time to time (including their interpretations thereof) by third

party network providers.

Trendar License Art. 4.2. While we previously found this language to be

(partially) ambiguous, we determined that Comdata and Flying J intended

that the Trendar Network would process TCH MasterCards the same way it

processed Comdata’s proprietary card. See Flying J I, 405 F.3d at 836

(“[T]he Trendar License [provides] Flying J with data capture and purchase

control similar to the so-called ‘Comdata model.’”). Flying J argues that in

so holding “[the Tenth Circuit] construed the Trendar License as adopting

the ‘primary model’ and did not preclude further enforcement of the license

consistent with that construction.” Reply at 9. However, using the “same”

processing model as Comdata’s does not necessarily mean Flying J need not

obtain merchant consent. Comdata does not process proprietary functions

on its own cards without merchant consent. Flying J I, 405 F.3d at 837

(“[M]erchant consent was central to Comdata’s commercial arrangements
-13-

and therefore to the Comdata model.”). By dismissing the dual-processing

method, we did not endorse another method of circumventing merchant

consent. Id. at 835 (“[Comdata] did not contemplate or intend that the

Trendar License would lead to proprietary processing of TCH MasterCards

at unaffiliated merchants, much less that this would be accomplished

through a dual-processing model.”). 

Furthermore, the license requires that the processes be carried out in

accordance with third-party rules. MasterCard, the relevant third party,

currently requires merchant consent. Id. at 828. Comdata, in the license,

did not agree to violate MasterCard regulations nor assist Flying J in

violating MasterCard regulations by forcing merchants to accept the

proprietary functions of the TCH MasterCards. Flying J may not evade this

requirement simply by asking the court to make a ruling that is “subject to

obtaining MasterCard Approval,” where it is clear that no approval is

forthcoming. See Aplt’s App. vol. IV, at 976. Our understanding of the

license and our prior ruling accord with the district court’s determination:

Flying J did not bargain for access to merchants who refuse to consent to the

TCH MasterCard’s proprietary functions. 

Requiring implementation of the primary model would improperly

allow Flying J access to merchants who do not consent to accept Flying J’s

TCH MasterCard. In the settlement agreement, Flying J gained access to
-14-

Comdata’s Trendar processing system. Comdata configured the system to

carry out proprietary functions where merchants consented to accept those

functions of the TCH MasterCard. Flying J brought this suit arguing for a

certain processing model at all Trendar locations, including those that for

competitive reasons or otherwise refuse to consent to allow the proprietary

functions on the TCH MasterCard. Flying J II, 2007 WL 3550342, at *3 (“It

appears that plaintiffs thus propose to avail themselves of the existing

merchants’ consent to acceptance of Comdata proprietary cards by deeming

TCH proprietary cards to be Comdata proprietary cards, regardless of

whether those merchants would otherwise consent to accept TCH cards and

proprietary processing of TCH card transactions.”). As we alluded to in our

earlier opinion and now squarely hold, Flying J is not entitled to access to

these merchants; therefore, the district court properly refused to consider

implementing the primary model. 

Flying J also argues that the district court misunderstood its own

earlier ruling on the motion to clarify. Aplts’ Br. at 25-30. While the

district court referenced the motion to clarify, it was not central to the

district court’s decision, see Flying J II, 2007 WL 3550342 at *3, nor is it

central to ours. Regardless of the district court’s prior ruling clarifying its

later-overturned order and regardless of the district court’s possible

misinterpretation of that ruling, we remain convinced that Flying J is not
-15-

entitled to implement the primary model. 

Moreover, the district court properly refused to consider the request in

light of Flying J’s earlier repudiation of that model. On remand, parties may

not resurrect arguments that they explicitly abandoned during earlier phases

of the litigation where there is no evidence of a change in circumstances. 

See generally Copart, Inc. v. Admin. Rev. Bd., U.S. Dep’t of Labor, 495 F.3d

1197, 1200-01 (10th Cir. 2007) (explaining that law of the case and its

corollary, the mandate rule, limit which arguments parties may raise after

remand). Prior to the evidentiary hearing on the motion to enforce, Flying J

acknowledged that the primary model violated MasterCard regulations and

therefore consideration of the model was moot. See Flying J I, 405 F.3d at

829 (“Because MasterCard rejected its original proposal, Flying J relied

exclusively on the dual-processing model at the evidentiary hearing.”). 

Nothing in the record indicates that MasterCard has changed its stance on

the primary model. Because Flying J abandoned this argument during an

earlier phase of the litigation, it may not now, nor could it in the district

court argue for implementation of the primary model. 

B. The District Court Did Not Abuse its Discretion in Determining the

Amount of Attorney’s Fees. 

Though Flying J argues that we should consider de novo whether block
-16-

billing as a matter of law requires a reduction in attorney’s fees, we

generally review awards of fees for an abuse of discretion. Praseuth v.

Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir. 2005). 

The settlement agreement authorizes reasonable attorneys’ fees for the

prevailing party in connection with any lawsuit arising out of the settlement

agreement. Aplts’ App. vol. I, at 57 (Settlement Agreement at 11 ¶ 12). As

discussed above, the district court correctly determined Comdata was the

prevailing party and awarded fees. Comdata submitted its fees, and Flying J

made detailed objections. The court carefully considered the parties’

positions in a 51-page opinion, 44 pages of which addressed attorneys’ fees. 

The district court held that the team of lawyers for Comdata was not

overstaffed and inefficient, given the nature of the case and the significant

dollar amount involved for the defendants. Flying J II, 2007 WL 3550342,

at *16. The court did hold that Comdata’s counsel’s use of block-billing

made it more difficult for the court to determine the reasonableness of the

fee. Nonetheless, the court found the fee reasonable. Flying J could not

persuade the court otherwise by comparing what Flying J’s counsel billed

($488,505) with what Comdata’s counsel billed ($1,026,806), over the same

period. Perhaps recalling the Trojan Horse and the Ilium analogy, the court

noted that “[t]he fact that it cost more to win the day than it did to lose does

not indicate that ‘more’ was either unreasonable or excessive.” Id. at *20. 
-17-

In our view, such a large discrepancy between attorney’s fees might raise

the judicial eyebrow, especially when counsel on both sides have zealously

represented their clients. However, the district court’s failure to infer

unreasonableness in this case does not indicate that the fee should be

overturned. The district court had a better feel for the case, and it did not

abuse its wide discretion in its carefully reasoned opinion. For that reason,

we uphold the district court’s award.

Additionally, we decline Flying J’s invitation to craft a rule of law

requiring a reduction in fees when attorneys have block billed. So-called

block billing consists of attorneys recording large blocks of time for tasks

without separating the tasks into individual blocks or elaborating on the

amount of time each task took. Use of this rather imprecise practice may be

strong evidence that a claimed amount of fees is excessive. Robinson v. City

of Edmond, 160 F.3d 1275, 1284 (10th Cir. 1998) (“The use of billing

practices that camouflage the work a lawyer does naturally and quite

correctly raise suspicions about whether all the work claimed was actually

accomplished or whether it was necessary. This concern is particularly

important in a situation where a party is seeking to have his opponent pay

for his own lawyer’s work.”). Even so, we remain convinced that the

decision whether block billing indicates an unreasonable claim should

remain with the district court who should be allowed to exercise its
-18-

discretion accordingly. See Hamilton v. Boise Cascade Express, 519 F.3d

1197, 1207 (10th Cir. 2008) (“[M]atters concerning, for example, how much

time was properly spent carrying out a certain litigation task are far better

determined by the district court, which is intimately familiar with the

parties, the attorneys, and the complete course of the litigation, than by an

appellate court.”). Certainly if the court awards additional fees to Comdata

and if Comdata’s attorneys continue this practice, the district court should

again strongly consider it an indication that the claimed fees are excessive. 

C. Judgment in Favor of Comdata is Stayed as to Flying J Inc. but not as

to Co-Parties, TCH LLC, CFJ Properties, TON Services, and TFJ

While this appeal was pending, Flying J Inc. filed for Chapter 11

bankruptcy in the United States Bankruptcy Court for the District of

Delaware. See In re Flying J Inc., No. 08-13384 (Bankr. D. Del. Dec. 22,

2008). Under 11 U.S.C. § 362(a), actions “to recover a claim against”

Flying J Inc. are automatically stayed pending the bankruptcy proceedings. 

Flying J has asked that this court extend the automatic stay protections to

co-plaintiffs, TCH, CFJ Properties, TON Services, and TFJ. These entities

joined Flying J Inc.’s appeal and have not filed for bankruptcy. Automatic

stay provisions generally do not extend to solvent co-parties. See Mason v.

Okla. Turnpike Authority, 115 F.3d 1442, 1450 (10th Cir. 1997). Flying J
-19-

Inc. urges this court to extend the stay to protect its co-parties because

Flying J Inc. is a necessary party and the real party in interest to this case. 

See Flying J Inc.’s Notice of Chapter 11 Bankruptcy Filing at 3 (citing In re

Fernstrom Storage and Van Co., 938 F.2d 731, 736 (7th Cir. 1991)); see

also Okla. Federated Gold and Numismatics, Inc. v. Blodgett, 24 F.3d 136,

142 (10th Cir. 1994) (citing A.H. Robins Co. v. Piccinin, 788 F.2d 994, 999

(4th Cir. 1986)). Because nothing in the record suggests Flying J Inc.’s coparties would be entitled to this exception, we do not stay this case as to

TCH, CFJ Properties, TON Services, and TFJ.

III. CONCLUSION

Accordingly, we AFFIRM the decision of the district court. However,

judgment is stayed, as to appellant Flying J Inc. only, pursuant to the

automatic stay provisions of 11 U.S.C. § 362, pending further order of this

court. By separate order, counsel for Flying J Inc. will be directed to file

periodic reports advising this court of the status of Flying J Inc.’s

bankruptcy proceedings. 

 

Submitted for the Court

Robert H. Henry

Chief Circuit Judge