## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 24 2002 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RUTTER & WILBANKS CORP.; ELLIOTT A. RIGGS; WILLIAM R. THURSTON, Trustee; GORDON TANNER; WALTER K. ARBUCKLE TRUST; ERIC B. WELLS; KEVIN C. WELLS; CHARLES R. WIGGINS; KEN KAMON,

Plaintiffs - Appellees,

v. No. 02-1220 SHELL OIL COMPANY; SHELL WESTERN E&P, INC.; MOBIL OIL CORPORATION; MOBIL PRODUCING TEXAS & NEW MEXICO, INC.; MOBIL EXPLORATION & PRODUCING, U.S., INC.; EXXON MOBIL, INC.; CORTEZ PIPELINE COMPANY, a partnership; SHELL CO 2 COMPANY, LTD., a Texas limited partnership; KINDER MORGAN CO 2 COMPANY, a Texas limited partnership,

Defendants - Appellees,

W. M. BRELSFORD; JUDITH WALKER FUNK; REED GILMORE and W. H. GILMORE, JR., in theirrepresentative capacities as coexecutors of the Estate of W. H. Gilmore, Sr. and Dorothy R. Gilmore;PEGGY B. STUART; ANTELOPE

ENERGY CO., LLC; ANTELOPE PRODUCTION CO.; WILLIAM G. KEMP and MARIE J. BENCH, in their representative capacities as co-trustees of the Bernard M. Bench Family Trust,

Objectors - Appellants.
MARGARET ANN AINSWORTH; CHARLES M. McAFEE & COMPANY; DOROTHY GAIL CHAPPELL; JOHN LARRY CLARK; NELDA LEE BARLOW; TROY M. OLIVER; SHORLENE OLIVER; POVERTY POINT PROPERTIES, L.P.; JOHN H. MILLER; DEE RENAY; HAZEL J. NEELY; INGRID JOANN HARTLEY; OLIVIA CARSON, LLC; INA F. GRAY; BARBARA E. GLAZNER; JOHN H. GLAZNER; CLARA CUNDIFF; ESTATE OF VELMA LOUISE HENDERSON; LOUIS M. GRAY; KIP E. MAKEEVER; EDITH DELIGHT JAMES; LAURA H. KENNEDY; CHARLES R. WIGGINS; ELVA GORSUCH; KEN KAMON; JERRY CHAFFIN; DOROTHY CHAFFIN; JOHNNIE E. DURAN; VICTOR DURAN; LeROY OLIVER; J. ELLEN OLIVER; WANDA HEATHMAN; IDENE MINCHIN; ERIC B. WELLS; KEVIN C. WELLS; WOOD OIL COMPANY,

Plaintiffs - Appellees, No. 02-1221

v.SHELL OIL COMPANY; SHELL

WESTERN E&P, INC.; MOBIL OIL CORPORATION; MOBIL PRODUCING TEXAS & NEW MEXICO, INC.; MOBIL EXPLORATION & PRODUCING U.S., INC.; EXXON MOBIL, INC.; CORTEZ PIPELINE COMPANY, a partnership; SHELL CO 2 COMPANY, LTD., a Texas limited partnership; KINDER MORGAN CO 2 COMPANY, a Texas limited partnership,

Defendants - Appellees,
BRUCE TEFFT; LUCINDA DAVIS; CHARLES BUTLER,

Objectors - Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. NOS. 00-Z-1854 and 00-Z-1856)

Gary J. Cruciani, McKool Smith, P.C., Dallas, Texas (Jean E. Dubofsky, Jean E. Dubofsky, P.C., Boulder, Colorado, and Dean Neuwirth, Burke & Neuwirth, P.C., with him on the briefs) for Objectors - Appellants. Marie Roach Yeates, Vinson & Elkins, L.L.P., Housto n, Texas (Andrew McCollam III, Gwen J. Samora, Vinson & Elkins, L.L. P., Houston, Texas; Kent Sullivan, Stinson Morrison Hecker LLP, Kansas City, Missouri; Phillip D. Barber, Phillip D. Barber P.C., Denver, Colorado; Shannon H . Ratliff, Akin Gump Strauss Hauer & Feld, LLP, Austin, Texas; Robert E. Youle, Brian G. Eberle, Sherman & Howard, L.L.C., Denver, Colorado; John F. Shepherd, Holland & Hart L.L.P., Denver, Colorado, with her on the briefs) for Defen dants - Appellees. John M. Cogswell, Buena Vista, Colorado and Michael J. Heaphy, Denver, Colorado, submitted a brief on behalf of Plaintiffs - Appellees.1 Objectors are members of only two of the three clas s actions involved in

this case and purport to appeal the settlement onlyas it relates to those two classes. Plaintiffs have filed a Motion to Partial ly Dismiss this appeal on the ground that Objectors are not class representatives , have made no effort to achieve that status, and therefore do not representthe class members in those two cases and can only object to the settlement as it a ffects their own individual interests. Plaintiffs seek dismissal of the appeal s as to all class members other than Objectors because, inasmuch as the settlement agreement provides that there shall be no distributions as long as there are appe als pending, the pendency of Objectors’ appeals prevents any distribution. While we are sympathetic to Plaintiffs’ plight, we can see no practical way to separate Objectors’ individual interests from th ose of the other class members without upsetting the entire settlement fund. More over, in Devlin v. Scardelletti , 122 S. Ct. 2005 (2002), in which the Supreme Court held that nonnamed nonintervening class members objecting to the approval of a settlement may appeal that approval even though they were not permitted t o intervene, the Court noted that such an objector “will only be allowed to appe al that aspect of the District (continued...) -4- Before TACHA , ANDERSON , andEBEL , Circuit Judges.

ANDERSON , Circuit Judge.

This appeal arises from the district court’s approv al of a $70 million class action settlement of four related cases involving t he production of carbon dioxide (CO 2 ) contained within the McElmo Dome Unit in Colorado . Appellants are eleven objectors (“Objectors”) who assert interests in several small royalty and overriding royalty interests in the McElmo Dome Uni t, and who object to the settlement. 11 (...continued)

Court’s order that affects him.” Id. at 2013, 2010. The Court described that “aspect,” however, as “the District Court’s decisio n to disregard his objections.” Id. at 2010. Objectors’ objections were directed at t he entire settlement. We therefore deny Plaintiffs’ motion to partially dism iss the appeals. -5- For the reasons that follow, we affirm the districtcourt’s approval of the settlement.

BACKGROUND The first of the four related actions was filed in October 1996 as a purported class action on behalf of a coalition (“C oalition”) of more than seventy McElmo Dome interest owners against various Shell O il Company and Mobil Oil Company entities and the Cortez Pipeline Company (c ollectively “Defendants”).
CO 2 Claims Coalition v. Shell Oil Co. , No. 96-Z-2451 (D. Colo. filed Oct. 22, 1996). The Coalition’s claims generally were for d amages and for future relief caused by the wrongful pricing by Defendants of CO 2 that was transferred through the Cortez Pipeline to oilfields in West Texas wher e Defendants used it to enhance oil production from older oilfields. Afterclass certification was denied on two separate occasions because the court determi ned that the alleged class members’ interests were too divergent to warrant cl ass certification, the Coalition case proceeded as an individual (non-class) action.-6-

Subsequently, in September 2000, three class action s were filed representing the three subgroups of interest holder s in the McElmo Dome Unit, royalty interest owners (“RIOs”), the overriding ro yalty interest owners (“ORIOs”), and the small share working interest own ers (“SSWIOs”). The three class actions are Ainsworth v. Shell Oil Co. , No. 00-Z-1856 (D. Colo. filed Sept. 22, 2000) (on behalf of the McElmo Dome RIOs; Rutte r & Wilbanks Corp. v. Shell Oil Co. , No. 00-Z-1854 (D. Colo. filed Sept. 22, 2000) (o n behalf of McElmo Dome ORIOs); and Watson v. Shell Oil Co. , No. 00-Z-1855 (D. Colo. filed Sept. 22, 2000) (on behalf of the SSWIOs). T he proposed class representative for each action was alleged to be a holder of the specific type of interest involved in the action, and represented si milarly situated unnamed class members. The claims asserted were largely identica l to those claims asserted in the CO 2 Claims Coalitionaction. Objectors’ counsel, Gary Cruciani, is the lead coun sel in two competing class actions against the Defendants filed on behal f of certain McElmo Dome ORIOs and RIOs in the probate court of Denton County, Texas: Shores v. Mobil Oil Corp. , No. GC-99-01184 (Denton County Prob. Ct. filed De c. 22, 1999) (on behalf of ORIOs); First State Bank of Denton v. Mob il Oil Corp. , No. 8552-01 (Denton County Prob. Ct. filed March 2001) (on beha lf of RIOs).-7-

By the summer of 2001, the CO 2 Claims case was nearing trial, after extensive discovery and other pretrial proceedings. After sporadic mediation efforts, at the encouragement of the district court , in August 2001, the Colorado parties pursued mediation under the guidance of former Colorado Supreme Court Justice Howard Kirshbaum. After more than seven we eks of negotiation, the parties agreed to and signed a settlement of all fo ur actions (The CO 2 Claims Coalitionaction and the three class actions) on September 2 4, 2001. They also filed a joint motion for preliminary approval of th e settlement. The basic terms of the settlement were as follows: defendants agreed to pay almost $52.9 million in cash, with 8% interest from August 21, 2001, until the final payment, the actual sum to be adjusted up or down based upon the number of actual subscribers to the settlement; def endants agreed to pay future relief of various sorts, which future relief the di strict court determined had a present value of $22.5 million; and the actual allo cation of the settlement funds was to be determined by the district court. As fin ally adjusted, the settlement fund was $50,430,308.00. The settlement essentiall y required a minimum of 90% participation. After opt-outs, the final subscript ion rate to the settlement was as follows: 99.7869% of the RIOs; 87.5882% of the ORI Os; and 99.9996% of the SSWIOs. In total, the subscription percentage was 96.0081%. Objectors have not opted out of the Colorado settlement.-8-

Meanwhile, on August 30, 2001, two of the Objectors (two of the Texas class representatives) acting on behalf of a named plaintiff in each of the two competing Texas actions, filed motions to intervene in the Colorado proceedings in order to object to the upcoming settlement. Aft er the Plaintiffs in the Colorado proceedings had filed various motions, including th e motion for preliminary approval of the class action settlement on behalf o f the three class actions (Rutter , Ainsworth , and Watson ) and a motion to appoint a fairness expert to revi ew the fairness of the overall settlement, including any a llocation as determined by the court, the district court held a status conference on October 1, 2001. After hearing from the two Objectors’ counsel at the Octo ber 1 status conference, the district court established a briefing schedule on O bjectors’ motion to intervene. Accordingly, Objectors appeared and argued at an Oc tober 26 hearing on their motion to intervene, at the conclusion of whi ch the district court denied the motions to intervene, “primarily . . . on timelines s.” App. Vol. XV, tab 134 at 5010. Then, a hearing on preliminary settlement ap proval took place on November 14. The court noted that although it was not permitting the Objectors to formally intervene, it would permit them to file amicus briefs. On December 6, the court signed the order conditionally certifying the class, preliminarily approving the settlement, and formally appointing J ames Lyons as the fairness expert. Mr. Lyons was specifically directed to add ress the following matters:2 As indicated, supra , the Supreme Court has recently ruled that a class

member who objects to a class settlement need not i ntervene in the district court in order to have standing to appeal the district co urt’s approval of the settlement. Devlin , 122 S. Ct. at 2013. We note that one court has h eld that Devlinonly applies to mandatory class settlements, where class members have no option to opt out. See Ballard v. Advance America , 79 S.W. 3d 835, 837 (Ark. 2002); see also In re: Gen. Am. Life Ins. Co. Sales Practice Litig ., Lewis & Ellis, Inc. v. Gen. Am. Life Ins. Co. , 302 F.3d 799, 800 (8th Cir. 2002) (noting Ballardand stating “we believe the limited reading of Devlin has considerable merit,” but avoiding deciding the issue). Were we to similarlynarrow Devlin ’s application, this entire appeal could be dismissed because Objec tors did have the right to opt out of the settlement. However, as Devlinmakes clear, the issue of whether a non-intervenin g unnamed class member may challenge the fairness of the settlement “does not (continued...) -9- (1) the fairness, reasonableness, and adequacy of the Settlement Agreement as to the class members; (2) the fairness of Plaintiffs’ proposed allocation of the Settlement Fund; (3) the fairness of Plaintiffs’ claims for payment of costs and attorne ys’ fees from the Settlement Fund; (4) the fairness of Plaintiffs’ pr oposed bonus allocation to the class representatives; and (5) ot her matters in the contemplation of the Court. Lyons Aff. at ¶ 1 n.1, App. Vol. XII, tab 35 at 412 5. On December 14, a hearing on preliminary allocation was held, at which Objectors’ counsel, Mr. Cruciani, presented his obj ections to the proposed allocation, and the court ensured that Mr. Cruciani was able to express his concerns to the fairness expert, Mr. Lyons. On January 25, 2002, Objectors filed a 57-page brie f objecting to the settlement, including affidavits and exhibits. The y also filed motions to intervene for the limited purpose of objecting to the propose d class settlement. 2 They2 (...continued)

implicate the jurisdiction of the courts under Arti cle III of the constitution,” nor does it “raise the sorts of concerns that are ordin arily addressed as a matter of prudential standing.” Devlin , 122 S. Ct. at 2009. We therefore elect to leave the scope of Devlinto another day, and proceed to the merits of this case, particularly in view of the fact that the parties do not discuss that argument and because the result of our decision is the same (unfavorable to Objectors).

3 In brief, the “no transportation” claim involved a dispute as to who should have borne the cost of transporting the CO 2 to its ultimate destination in West Texas. The Objectors assert that the claim, which they included among their claims in the Texas cases, is worth up to $200 mill ion. The Colorado cases did not include such a claim, and it is released by the settlement agreement. The fairness expert, along with Plaintiffs and Defendants, argue that because of many uncertainties regarding the viability of such a cla im, it would be worth, if anything, far less than $200 million. The “no tran sportation” claim, which is based on several different theories, has not thus f ar succeeded in the Texas cases. -10- objected on numerous grounds, including the total amount of the settlement, its resolution of the “no transportation” claim, 3 the allocation of the settlement, alleged conflicts of interest by Plaintiffs’ counse l, and alleged “collusion” in the settlement negotiations. In his Affidavit concerni ng the proposed class action settlement, Mr. Lyons stated that he “had various a nd extensive discussions with counsel for all parties, including counsel for Obje ctors.” Lyons Aff. ¶ 1, App. Vol. XII, tab 35 at 4125. In February 2002, Objectors moved to take expediteddiscovery and sought to depose everyone involved in the settlement, whic h was denied. They also requested a status conference to discuss whether th ey would be allowed to present live testimony at the final fairness hearing schedu led for April 8, 2002. There-11-

was apparently a status conference held on February11, 2002, which was not transcribed, and in which Objectors again requestedpermission to present live testimony at the final fairness hearing. The courtinvited briefs on the issue. Objectors then filed a motion to present live testi mony, which the district court denied, stating: The Court, having presided over this entire matter for almost six years, is familiar with the case, and all elements thereof. The objectors have been afforded procedural protections . They have received notice, despite initial inefficiencies, an d have alerted the Court to their concerns over this settlement via vo luminous written material, exhibits, and affidavits. They have part icipated in this case since their intervention motions were filed, and have had access to significant discovery in this matter and the Texas cases. Under these circumstances . . . objectors’ motion for live test imony will be denied. Order at 3, App. Vol. XI, tab 104 at 3772. However, the court did state that Objectors “may fi le additional written proffers and/or affidavits not to exceed five pages each, on or before April 3, 2002,” and it stated that they “may file with the C ourt suggested questions to be posed to Mr. Lyons at the Fairness Hearing, which the Court may or may not ask, on or before April 4, 2002.” Id. at 3772-3773. At Objectors’ request, those deadlines were extended to April 5, 2002, with written submissions not to exceed ten pages, although Objectors were directed they “m ay not file affidavits and/or proffers by persons who previously have filed simil ar papers with the Court.” Minute Order, App. Vol. XII, tab 108, 109. The cou rt also denied Objectors’-12-

motions to intervene for the limited purpose of obj ecting to the proposed settlement. On April 5, Objectors filed written proffers of the live testimony they had hoped to present, exhibits, written questions for M r. Lyons, and a motion for leave to reply to the parties’ responses to their o bjections. Additional materials Objectors proffered on the day of the hearing, Apri l 8, were not considered by the

court. At the April 8 final fairness hearing, counsel for Plaintiffs, Defendants, and Objectors were present and were allowed to argue. Additionally, Mr. Lyons testified as to his opinion of the fairness and rea sonableness of the settlement. The district court repeatedly reminded all present that it was familiar with the case and had carefully considered all arguments, sp ecifically including Objectors’ arguments. Indeed, the judge stated, “[i]n light o f the fact that the parties are settling or are attempting to settle this case, I a m benefitted by the objectors’ position in bringing a certain adversarial element back into the proceedings. This has caused an examination of the issues raised.” T ranscript of Settlement Hr’g, App. Vol. XVI, tab 139 at 5227. The district courtaccordingly gave final approval of the settlement at the conclusion of the April 8 hearing, and, on May 6, 2002, entered final judgments granting class certif ication, giving final approval of the settlement, and dismissing Plaintiffs’ claims w ith prejudice. It then entered-13-

findings of fact and conclusions of law which speci fically addressed Objectors’ arguments, ruling against them and concluding that the settlement was fair, reasonable, and adequate. Objectors brought this appeal, arguing: (1) the di strict court denied them due process by refusing to permit them to present l ive testimony in the final fairness hearing and denying them the right to file rebuttal affidavits and to crossexamine the fairness expert; (2) Plaintiffs’ counse l failed to adequately represent the class and had conflicts of interest which rende red the settlement unfair and unreasonable; (3) the settlement itself was not fai r and reasonable; and (4) the district court erred in failing to find that the en tire settlement agreement was a collusive “reverse auction.”

DISCUSSION “Due process issues, which call for legal conclusio ns, are subject to de

novo review.” United States v. Clark , 84 F.3d 378, 381 (10th Cir. 1996). By contrast, “[w]e review the court’s approval of the settlement agreement for an abuse of discretion.” United States v. Hardage , 982 F.2d 1491, 1495 (10th Cir. 1993); see also Hanlon v. Chrysler Corp. , 150 F.3d 1011, 1026 (9th Cir. 1998) (noting that the district court’s “decision to appr ove or reject a settlement is committed to the sound discretion of the trial judg e because he is exposed to the-14-

litigants, and their strategies, positions, and pro of”). Any factual findings we review under the clearly erroneous standard. Fed. R. Civ. P. 52(a). “In reviewing a court’s determination for abuse of discretion, we will not disturb the determination absent a distinct showing it was base d on a clearly erroneous finding of fact or an erroneous conclusion of law o r manifests a clear error of judgment.” Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995).

I. Due Process Claim Objectors argue their due process rights were violated by the district court’s refusal to let them present live testimony in suppo rt of their objections at the final fairness hearing. They further argue the district court compounded that error by not allowing Objectors to present rebuttal affidavi ts or cross-examine Mr. Lyons, the fairness expert. “‘The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful mann er.’” Kowalczyk v. INS , 245 F.3d 1143, 1147 (10th Cir. 2001) (quoting Mathe ws v. Eldridge , 424 U.S. 319, 333 (1976)); Jones v. Nuclear Pharm., Inc. , 741 F.2d 322, 325 (10th Cir. 1984) (“The essence of procedural due process is th at the parties be given notice and opportunity for a hearing.”). As we held in Jo nes , “[a]n objecting shareholder is not entitled, as a matter of right, to an evidentiary hearing during a4 As Plaintiffs and Defendants point out, Objectors h ad ample time to file

rebuttal affidavits. The refusal about which they complain involves the decision five days before the final fairness hearing to not permit Objectors to file affidavits from those who had previously filed “sim ilar” affidavits. -15- settlement hearing.” Jones , 741 F.2d at 325. Objectors attempt to distinguis h
Jones by arguing that the objector in that case “had complete access to discovery.” Id. Our review of the record in this case fully suppo rts the district court’s conclusion that Objectors in this case hadadequate discovery and opportunity to be heard: [Objectors] have received notice, despite initial i nefficiencies, and have alerted the Court to their concerns over this settlement via voluminous written materials, exhibits, and affidav its. They have participated in this case since their intervention motions were filed, and have had access to significant discovery in thi s matter and the Texas cases. Order at 3, App. Vol. XI, tab 104 at 3772. “The un iversal rule of due process is fairness; the trial court afforded all parties to t he settlement, including [objector], such fairness.” Jones , 741 F.2d at 325. Similarly, we perceive no additional due process vi olation because the district court, shortly before the final fairness h earing, refused to permit Objectors to file rebuttal affidavits by parties who had alre ady filed affidavits, and by its refusal to permit cross-examination of the fairness expert. 4 “Although the right to be heard is an integral part of due process, an ind ividual entitled to such process-16-

is not entitled to dictate to the court the precise manner in which he is to be heard.” Id. Objectors were afforded adequate due process.

II. Adequacy of Representation and Conflicts of In terest Rule 23(a) demands that “the representative parties will fairly and adequately protect the interests of the class.” Fe d. R. Civ. P. 23(a)(4). “Resolution of two questions determines legal adequ acy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and theircounsel prosecute the action vigorously on behalf of the class?” Hanson , 150 F.3d at 1020; see also Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 626 n.20 (1997) (“The adequacy head ing also factors in competency and conflicts of class c ounsel.”). Objectors argue the district court abused its discr etion in certifying the settlement classes, because the class representativ es, and Plaintiffs’ counsel, failed to adequately represent the classes and/or s uffered conflicts of interest. Objectors particularly focus on Plaintiffs’ counsel , alleging “numerous conflicts of interest.” Appellants’ Op. Br. at 28. The distr ict court carefully examined this argument, and concluded “the Court finds that Plain tiffs’ Counsel has vigorously and competently represented all class members.” Fi ndings of Fact and Conclusions of Law at 5-6, App. Vol. XV, tab 131 at4786-87. Indeed, as-17-

Plaintiffs point out, Objectors fail to demonstrate why, given the fact that the court, not the parties, determined the allocation o f the settlement between the various subgroups, any alleged conflict between tho se subgroups would be magnified or exacerbated by the fact that Plaintiff s’ counsel represented all the groups. Rather, that situation would motivate Plai ntiffs’ counsel to seek the largest overall award possible. Further, as Defendants point out, each subgroup hadits own class representative during settlement negotiations, and the fairness expert spent considerable time reviewing the details of the sett lement and the allocation, including recommending some modifications, which th e district court accepted.
See Amchem Prods., Inc. , 521 U.S. 591, 627 (1997) (noting that a settlement needs “structural assurance of fair and adequate re presentation for the diverse groups and individuals affected”). Additionally, O bjectors themselves and their counsel argued strenuously on behalf of the RIOs an d ORIOs, the two subgroups involved in the Texas cases. See Gottlieb v. Wiles , 11 F.3d 1004, 1008 n.4 (10th Cir. 1993), overruled in part on other grounds , Devlin v. Scardelletti , 122 S. Ct. 2005 (2002) (noting that any claim of inadequacy of representation “was cured by the [objectors’] active participation in the Rule 2 3(e) settlement approval hearing and by the district court’s explicit addressing of the [objectors’] objections in its order approving settlement.”). Given the district court’s familiarity with the case,5 For instance, they assert that, because Defendants defeated Plaintiffs’ two

prior motions for class certification in the CO 2 Claims Coalitioncase, but (continued...) -18- we perceive no abuse of discretion in its conclusio n that “the adequacy requirement of Rule 23(a)(1) is satisfied in every respect and that no disabling conflicts exist here.” Id. at 6.

III. Approval of Settlement as Fair and Reasonable We have noted four factors to be considered in asse ssing whether a proposed settlement is fair, reasonable and adequat e: (1) whether the proposed settlement was fairly and h onestly negotiated; (2) whether serious questions of law and fact exist , placing the ultimate outcome of the litigation in doubt; (3) whether the value of an immediate recovery outw eighs the mere possibility of future relief after protracted and expensive litigation; and (4) the judgment of the parties that the settlementis fair and reasonable. Gottlieb , 11 F.3d at 1014; see also Jones , 741 F.2d at 324. Objectors make a variety of arguments as to why the settlement was unfair and unreasonable. They particularly argue that the allocation of the settlement fund among the various subgroups is unfair. They a lso repeatedly allege that the settlement was the product of collusion, although t hey point to little concrete evidence in support of this allegation. 5 The district court carefully went through5 (...continued)

supported class certification in connection with th e settlement of that case plus the three class actions, an inference of collusion between Plaintiffs and Defendants is warranted. However, as Defendants as sert, it was not inconsistent to oppose class certification in the CO 2 Claims Coalitioncase, when all types of interests were involved with no differentiation between the different subgroups, but to support it when each subgroup was separated into its own class with its own class representative. -19- each of the four factors listed in Gottlieb and Jones and considered all of Objectors’ arguments. The court thoroughly conside red Objector’s allocation arguments, and their arguments concerning purportedcollusion, and solicited extensive input from the fairness expert. We concl ude that the district court did not abuse its discretion in determining that the se ttlement, from which an extremely small percentage of class members opted o ut, was fair, reasonable and adequate, for substantially the reasons stated in t he district court’s findings of fact and conclusions of law.

IV. Reverse Auction Argument Finally, Objectors argue the district court erred i n failing to find that the settlement agreement was a collusive “reverse aucti on” designed to undercut the competing Texas class actions. The district court found that there was no evidence of collusion, and nothing Objectors directus to in the record convinces us that the district court’s finding on that point was clearly erroneous. Moreover,6 In a short footnote in their brief, Objectors also assert that the district

court erred in awarding excessive attorney’s fees and in failing to follow the Johnson v. Georgia Highway Express, Inc. , 488 F.2d 714 (5th Cir. 1974) factors. They fail to further develop this argument, and we therefor do not address it. -20- Objectors have no response to the argument the sett ling parties make, and with which the district court agreed, that Objectors rev erse auction argument “would lead to the conclusion that no settlement could eve r occur in the circumstances of parallel or multiple class actions—none of the comp eting cases could settle without being accused by another of participating i n a ‘collusive reverse auction.’” Findings of Fact and Conclusions of Lawat 20, App. Vol. XV, tab 131 at 4801. Absent some more concrete evidence of col lusion than Objector’s conclusory allegations and inferences, we decline t o disturb the district court’s conclusion that the settlement was not a collusive reverse auction. 6

CONCLUSION We have carefully reviewed the lengthy record and b riefs in this case, and have fully considered all of Objectors’ arguments. For the foregoing reasons, we AFFIRM the district court’s judgment.