FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER W. HESSE; NATHANIEL 

OLSON,

Plaintiffs-Appellants,

v. No. 08-35235

SPRINT CORPORATION,

D.C. No. a foreign corporation,  2:-6-cv-00592-JCC Defendant,

OPINION and

SPRINT SPECTRUM LP,

doing business as Sprint PCS,

Defendant-Appellee. 

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, District Judge, Presiding

Argued and Submitted

November 5, 2009—Seattle, Washington

Filed March 10, 2010

Before: Arthur L. Alarcón, Andrew J. Kleinfeld and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

3845
COUNSEL

David Elliot Breskin and Daniel Foster Johnson (argued),

Breskin Johnson & Townsend PLLC, Seattle, Washington;

3848 HESSE v. SPRINT
and Bradley Jerome Moore, Stritmatter Kessler Whelan

Coluccio, Seattle, Washington, for the plaintiffs-appellants.

Gavin W. Skok and David Brenner, Riddell Williams, PS,

Seattle, Washington; Robert Bruce Allensworth, Brian M.

Forbes, Ryan M. Tosi, and Andrew Glass (argued), Kirkpatrick & Lockhart Preston Gates Ellis LLP, Boston, Massachusetts, for the defendant-appellee.

OPINION

CLIFTON, Circuit Judge: 

This case requires us to consider whether a broad release of

claims in a nationwide settlement agreement between Sprint

and its customers precludes the present class action involving

a Washington state tax that Sprint invoiced to its Washington

customers. That nationwide settlement arose out of a lawsuit

that challenged Sprint’s billing of customers for certain federal regulatory fees. Because we conclude that the Washington Plaintiffs’ interests were not adequately represented in the

prior action and that their claims are not “based on the identical factual predicate as that underlying the claims in the settled class action,” Williams v. Boeing Co., 517 F.3d 1120,

1133 (9th Cir. 2008), we hold that the prior settlement did not

release the claims at issue in this case, and we vacate the district court’s grant of summary judgment in favor of Sprint.

I. Background

The State of Washington imposes a business and occupation tax (“B&O tax”) on every person engaged in business

activities in the state. Wash. Rev. Code § 82.04.220. Washington law specifies that the B&O tax must be collected from

a business as part of its “operating overhead” rather than

imposed as a separate “tax[ ] upon the purchasers or customHESSE v. SPRINT 3849
ers.” Id. § 82.04.500 (the “B&O Tax Statute”). It is alleged

that Sprint passed the tax directly to its customers as a separate line item labeled “Washington State B&O Tax Surcharge” starting in April 2001.

Christopher Hesse and Nathaniel Olson (“the Washington

Plaintiffs”) filed separate class actions in Washington state

court alleging violations of the B&O Tax Statute and the

Washington Consumer Protection Act (“CPA”), Wash. Rev.

Code § 19.86.030, as well as common law breach of contract

and unjust enrichment. Sprint removed both cases to the

United States District Court for the Western District of Washington pursuant to 28 U.S.C. § 1441(a). 

The district court dismissed all claims predicated on the

B&O Tax Statute as preempted by the Federal Communications Act (“FCA”), 47 U.S.C. § 332(c)(3)(A), but denied

Sprint’s motion to dismiss insofar as it related to “Plaintiffs’

other contract and CPA claims.” The district court then certified a class of “all current and former Washington state wireless service customers of Sprint, who have been charged and

paid to Sprint a ‘Washington State B&O Tax Surcharge’ ”

with the Washington Plaintiffs as class representatives.

After filing its answer to the Washington Plaintiffs’ consolidated complaint, Sprint moved for summary judgment, arguing for the first time that the suit was barred by a class

settlement between Sprint and its customers approved by a

Kansas state court in 2006 (the “Benney Settlement”).

The Benney Settlement resulted from several class actions

filed in 2002 in various state courts and then dismissed and

refiled in Kansas state court in 2005 for purposes of settlement. One of those class actions was initiated in Missouri by

Greg Benney (the “Benney Class Plaintiff”), who alleged that

Sprint’s surcharges to recoup federal regulatory fees violated

consumer protection laws, represented a breach of contract,

and resulted in unjust enrichment. The relevant regulatory

3850 HESSE v. SPRINT
fees were defined in the settlement agreement to include only

specified fees imposed to recover the cost of compliance with

federally mandated programs.1 The Benney class was defined

to consist of “all current and former Sprint wireless customers

in the United States who were customers for any time during

the period December 1, 2000 to the Effective Date [of the settlement in late 2006] and who were charged Regulatory Fees

(as defined in [the Benney Settlement]).” It is not disputed

that the named plaintiffs in the case before us were members

of the Benney class and that they did not opt out.

Sprint settled with the nationwide plaintiff classes, including the Benney class, in February 2006. The settlement provided various benefits, including phone cards and invoice

credits on future bills, to members of the various subclasses

of the Benney class who submitted claim forms. Sprint

agreed, in a paragraph titled “Injunctive Relief as to Billing

and Advertising Practices Related to the Regulatory Fees,” to

disclose for at least two years that the regulatory fees and

other surcharges to recoup the cost of compliance with government programs are “not taxes or government mandated

charges.” The term of the Benney Settlement relevant to

Sprint’s defense in the present case is Paragraph 22(a)(1),

1The Benney Settlement specified that the “Regulatory Fees” at issue in

the Benney class action included only 

(i) the “USA Regulatory Obligations & Fees” fee or surcharge on

subscriber invoices that Sprint charged subscribers for the cost of

implementing federally mandated programs for Enhanced 911

(“E911”) emergency calling Phase II and federal Universal Service Fund contributions (“USF”); (ii) “Federal Telephone Number Pooling” fee or surcharge on subscriber invoices that Sprint

charged subscribers to recover costs of implementing the federally mandated program for wireless number portability; (iii)

“Federal USF,” “Federal E911” and “Federal Wireless Number

Pooling and Portability” fees or surcharges on subscriber invoices

that Sprint charged wireless subscribers to recover costs of implementing federally mandated programs for wireless number pooling and portability, federal Universal Service Fund contributions,

and Enhanced 911 emergency calling Phase II. 

HESSE v. SPRINT 3851
which purported to release Sprint from a set of potential

claims much broader than the surcharges for federal regulatory fees that were the subject of the Benney action:

any and all claims . . . that have been, could have

been, or in the future might be asserted in the [Benney] Action[ ] or in any other court or proceeding

which relate in any way to allegations that . . .

[Sprint] failed properly to disclose or otherwise

improperly charged for surcharges, regulatory fees

or excise taxes, including but not limited to the Regulatory Fees; and all other causes of action . . .

whether based on federal, state, or local statute . . .

that have been, could have been, may be, or could be

alleged or asserted by any Class member . . . against

[Sprint] relating to . . . the subject matter of any of

the claims alleged in the Benney Action.

The Kansas court granted final approval of the Benney Settlement in November 2006. That order incorporated the settlement’s release by reference and included its own expansive

release of liability.2

The district court granted Sprint’s motion for summary

judgment in the present case based on these broad releases of

liability.3

2The Kansas court’s order approving the Benney Settlement purported

to release Sprint 

from any liability to each and every Benney . . . Settlement Class

members [sic] . . . arising from or relating to any and all claims

that were or could have been alleged in the Benney matter,

including but not limited to claims which relate in any way to

allegations that . . . Sprint failed properly to disclose or otherwise

improperly charged for surcharges, regulatory fees or excise

taxes, including but not limited to Regulatory Fees . . . .

3Sprint also moved for summary judgment on the grounds that the voluntary payment doctrine bars the Washington Plaintiffs’ contract and

3852 HESSE v. SPRINT
II. Discussion

A. Federal Preemption

[1] We start with the district court’s dismissal of the claims

based on violations of the B&O Tax Statute. The district court

held that the Washington state law was preempted by a provision of the FCA decreeing that “no State or local government

shall have any authority to regulate the entry of or the rates

charged by any commercial mobile service or any private

mobile service.” 47 U.S.C. § 332(c)(3)(A)). Our court subsequently held, to the contrary, that the B&O Tax Statute does

not regulate “the rates charged” but only “the method of disclosure” and is thus not preempted by the FCA. Peck v.

Cingular Wireless, LLC, 535 F.3d 1053, 1058 (9th Cir. 2008).

We therefore vacate the district court’s Amended Order dated

February 13, 2007, which dismissed the Washington Plaintiffs’ claims for violations of the B&O Tax Statute.

B. The Benney Settlement

We turn next to the district court’s grant of summary judgment on the ground that the Washington Plaintiffs’ claims

were released by the Benney Settlement. We review the district court’s grant of summary judgment de novo. United

States v. Milner, 583 F.3d 1174, 1182 (9th Cir. 2009).

Sprint argues that the Washington Plaintiffs’ claims in this

case fall within the broad release of liability in the Benney

Settlement because they are “claims . . . that . . . could have

been . . . asserted . . . in [an]other court or proceeding which

unjust enrichment claims, that there was no breach of contract under its

interpretation of the contract, that a claim for unjust enrichment is inconsistent with a claim for breach of contract, and that CPA claims fail in the

absence of deception and causation. The district court did not reach these

alternative grounds. 

HESSE v. SPRINT 3853
relate . . . to allegations that . . . [Sprint] failed properly to disclose or otherwise improperly charged for surcharges, regulatory fees or excise taxes . . . .” If this release were to operate

according to that interpretation, the Washington Plaintiffs

would have no recourse for their surcharge-related claims in

federal court because “[c]laim preclusion in federal court can

be based on a state court settlement.” Howard v. America

Online, Inc., 208 F.3d 741, 748 (9th Cir. 2000). We conclude,

however, that the release cannot preclude the Washington

Plaintiffs’ claims because the Benney Class Plaintiff did not

adequately represent the Washington Plaintiffs and because

the Washington Plaintiffs’ claims are based on a set of facts

different from those underlying the claims settled in the Benney Settlement. For these two independent reasons, we vacate

the district court’s order granting summary judgment.

1. Collateral Review

[2] At the threshold, Sprint contends that we may not

inquire into the adequacy of representation in the Benney

action because such an inquiry is an impermissible collateral

attack on the Kansas court’s judgment. The Full Faith and

Credit Act generally requires us to afford the “judicial proceedings” of any State “the same full faith and credit . . . as

they have by law or usage in the courts of such State” as

determined by the rules of the State. 28 U.S.C. § 1738; see

Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 373

(1996). But a state court’s power to declare the preclusive

effect of its judgments is not without limit: “A State may not

grant preclusive effect in its own courts to a constitutionally

infirm judgment,” and we are “not required to accord full

faith and credit to such a judgment.” Kremer v. Chem. Constr.

Corp., 456 U.S. 461, 482 (1982), quoted in Epstein v. MCA,

Inc. (Epstein II), 179 F.3d 641, 645 (9th Cir. 1999).

In Matsushita, the Supreme Court reversed a decision of

our court that did not accord full faith and credit as required

by 28 U.S.C. § 1738 to a state court judgment approving a

3854 HESSE v. SPRINT
settlement that released exclusively federal claims. 516 U.S.

at 373, rev’g Epstein v. MCA, Inc. (Epstein I), 50 F.3d 644

(9th Cir. 1995). The Supreme Court held that we must look

to state law in determining the preclusive effect of a state

court judgment releasing such claims. Id. at 374. Our court’s

approach in Epstein I had failed to apply the Delaware

Supreme Court’s claim preclusion doctrine under which a settlement could release even exclusively federal claims.

On remand from the Supreme Court in Matsushita, the federal plaintiff class argued that the named plaintiffs of the settled state court class did not adequately represent their

interests as to the federal claims in state court. Epstein II, 179

F.3d at 644. We stated that while “broad collateral review of

the adequacy of representation . . . is not available” after Matsushita, “[l]imited collateral review would be appropriate . . .

to consider whether the procedures in the prior litigation

afforded the party against whom the earlier judgment is

asserted a ‘full and fair opportunity’ to litigate the claim or

issue.” Id. at 648-49 (quoting Kremer, 456 U.S. at 480); see

also Stephenson v. Dow Chem. Co., 273 F.3d 249, 258 & n.6

(2d Cir. 2001) (holding that under the Epstein II standard, collateral review is permissible where the court that approved the

settlement did not address the adequacy of representation as

to a specific subset of a class “whose injuries manifested after

depletion of the settlement funds”).

[3] Normally we will satisfy ourselves that the party

received the requisite notice, opportunity to be heard, and

adequate representation by referencing the state court’s findings. See Epstein II, 179 F.3d at 648. In Epstein II we found

no need to review collaterally the Delaware Chancery Court’s

decision because that court expressly found that class representation was adequate as to the relevant federal claims, id. at

643, 649-50,4 and the Supreme Court’s decision in Matsushita

4The case for adequate representation was much stronger in Epstein,

where the Delaware Chancery Court specifically released the federal

HESSE v. SPRINT 3855
was based on its own conclusion that the Delaware judgment

satisfied due process. See id. at 645 (citing Matsushita, 516

U.S. at 379). In this case, however, the Kansas court made no

finding that the Benney Class Plaintiff’s representation of the

class was adequate as to the B&O Tax Surcharge claims at

issue in this case, and we are faced with no Supreme Court

decision premised on the constitutional validity of the Kansas

judgment. 

The Kansas court’s findings are insufficient to demonstrate

that the Benney Class Plaintiff adequately represented the

Washington Plaintiffs. The Kansas court found that the Benney Class Plaintiff’s Sprint bills were typical of the other class

members’ bills, but only “in that each bill imposed the

[defined] Regulatory Fees.” The Kansas court also noted that

the Benney Class Plaintiff “paid the Regulatory Fees at issue

in this case” but did not make an explicit finding that the Benney Plaintiff was an adequate representative of the class,

much less that he was an adequate class representative as to

the B&O Tax Surcharge claims. Because that question was

not addressed with any specificity by the Kansas court, it is

a proper subject for collateral review. Cf. id. at 649 (relying

on the Delaware court’s express finding of “adequate representation” and “notice plus an opportunity to be heard and

participate in the litigation.” (quoting Phillips Petroleum Co.

v. Shutts, 472 U.S. 797, 812 (1985))).

[4] Consistent with Epstein II, we review the Benney Judgment only to determine whether, in the absence of a specific

finding by the Kansas court, its judgment satisfies due process

claims at issue in the objectors’ action, Matsushita, 516 U.S. 371-72, and

both identical classes of shareholders advanced claims “aris[ing] out of the

same transaction” — the tender offer by which their shares in a corporation were sold. Nothing distinguished the subsequent class from the identical settled class except that the subsequent class filed federal claims in

federal court and objected to the state court settlement, which had been

predicated on state law claims. Epstein I, 50 F.3d at 666; Epstein II, 179

F.3d at 643. 

3856 HESSE v. SPRINT
as to the claims at issue here, and whether, under Kansas law,

it precludes the Washington Plaintiffs’ claims. See id. at 645.

2. Inadequate Class Representation

The Benney Class Plaintiff was not an adequate representative for the claims asserted by the Washington Plaintiffs.

Without adequate representation, a court order approving a

claim-preclusive class action settlement agreement cannot satisfy due process as to all members of the class. See Shutts,

472 U.S. at 812 (“[T]he Due Process Clause . . . requires that

the named plaintiff at all times adequately represent the interests of the absent class members.”); Hanlon v. Chrysler

Corp., 150 F.3d 1011, 1020 (9th Cir. 1998) (“To satisfy constitutional due process concerns, absent class members must

be afforded adequate representation before entry of a judgment which binds them.”); Brown v. Ticor Title Ins. Co., 982

F.2d 386, 390 (9th Cir. 1992) (“[I]f the plaintiff was not adequately represented in the prior action, or there was a denial

of due process, then the prior decision has no preclusive

effect.”).

[5] Class representation is inadequate if the named plaintiff

fails to prosecute the action vigorously on behalf of the entire

class or has an insurmountable conflict of interest with other

class members. See Hanlon v. Chrysler Corp., 150 F.3d 1011,

1020 (9th Cir. 1998). The Benney Class Plaintiff’s representation of the Washington Plaintiffs was inadequate for both reasons.

[6] First, the Benney Class Plaintiff did not share the

Washington Plaintiffs’ B&O Tax Surcharge claims, or even

pretend to prosecute those claims on their behalf. The Benney

Class Plaintiff was a resident of Missouri who never paid the

Washington B&O Tax Surcharge. It is evident that the Benney

Class Plaintiff did not vigorously prosecute the claims relevant to this case. His petition, the settlement agreement it

induced, and the judgment approving that settlement agreeHESSE v. SPRINT 3857
ment all confirm that the Benney class action was brought to

remedy a different set of injuries: Sprint’s nationwide surcharges that shifted to its customers certain costs imposed by

the federal government. 

[7] Second, as a result of not possessing the same type of

claim as the Washington Plaintiffs, the Benney Class Plaintiff

had an insurmountable conflict of interest with those members

of the class. Conflicts of interest may arise when one group

within a larger class possesses a claim that is neither typical

of the rest of the class nor shared by the class representative.

See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-27

(1997) (holding class representation inadequate because of the

conflict of interest between class members manifesting asbestos injuries and those with yet undiagnosed injuries). In this

case, the Benney Class Plaintiff’s interest in settling his federal Regulatory Fee claims, even at the cost of a broad release

of other claims he did not possess, was in conflict with the

Washington Plaintiffs’ unrepresented interest in prosecuting

their B&O Tax Surcharge claims. The Benney Class Plaintiff’s representation of the Washington Plaintiffs was therefore inadequate as to those claims.

[8] The Benney Judgment would be constitutionally infirm

if it were interpreted, as Sprint contends it should be, to preclude the B&O Tax Surcharge claims at issue in this case,

because the Benney Class Plaintiff’s representation of the

Washington Plaintiffs failed to satisfy due process as to those

claims.5 Thus, even if Kansas law — contrary to our interpretation of it below — did allow the Benney Judgment to

release the Washington Plaintiffs’ claims related to the B&O

5We do not set aside the Kansas court’s approval of the settlement.

Indeed, we accord that judgment full faith and credit and presume that it

is binding on all claims that it properly released under Kansas law, including any claims of the Washington Plaintiffs pertaining to the federal regulatory fees at issue in Benney. We hold only that any release of the B&O

Tax Surcharge claims at issue in this case by the judgment approving the

Benney Settlement would violate due process. 

3858 HESSE v. SPRINT
Tax Surcharge, we would not be bound to give the Benney

Judgment that effect.

3. Identical Factual Predicate

Even apart from due process concerns, a settlement agreement’s bare assertion that a party will not be liable for a broad

swath of potential claims does not necessarily make it so. See

Williams, 517 F.3d at 1134 (“While Boeing may have drafted

the settlement agreement to include as broad a release as possible, the release would have only been enforceable as to subsequent claims . . . depending upon the same set of facts.”

(internal quotations marks omitted)).

As a threshold matter, Sprint contends that we may not

consider the Washington Plaintiffs’ argument that their claims

have a different factual predicate from the claims involved in

the Benney Settlement because they raised that argument for

the first time in a motion for reconsideration after the district

court granted Sprint’s motion for summary judgment, and the

Washington Plaintiffs did not amend their notice of appeal

after the district court denied their motion for reconsideration.

See Intercontinental Travel Mktg. v. FDIC, 45 F.3d 1278,

1286 (9th Cir. 1994) (“Raising an issue for the first time in

a motion to reconsider is not considered adequate preservation

of the issue at a summary judgment stage.”). 

We have discretion to consider an issue raised for the first

time on appeal “(1) where review is necessary to prevent a

miscarriage of justice or to preserve the integrity of the judicial process; (2) where there is a change in the law creating

a new issue; or (3) when the issue presented is purely one of

law and either does not depend on the factual record developed below, or the pertinent record has been fully developed.”

Comedy Club, Inc. v. Improv West Assocs., 553 F.3d 1277,

n.11 (9th Cir. 2009) (internal quotation marks omitted). We

exercise that discretion here. The Washington Plaintiffs’

“identical factual predicate” argument is a mixed question of

HESSE v. SPRINT 3859
law and fact. They argue both that a settlement must be based

on the “identical factual predicate” as a subsequent claim to

preclude that claim, and that the Benney claims and the B&O

Tax Surcharge claims do not share an identical factual predicate. We are persuaded to consider this argument because it

is conceptually related to the arguments raised in response to

Sprint’s motion for summary judgment in which Sprint first

put forward the theory that the Benney Settlement released the

Washington Plaintiffs’ claims, and the pertinent factual record

regarding the basis for the claims in both cases is fully developed.

[9] A settlement agreement may preclude a party from

bringing a related claim in the future “even though the claim

was not presented and might not have been presentable in the

class action,” but only where the released claim is “based on

the identical factual predicate as that underlying the claims in

the settled class action.” Williams v. Boeing Co., 517 F.3d

1120, 1133 (9th Cir. 2008); Class Plaintiffs v. City of Seattle,

955 F.2d 1268, 1287 (9th Cir. 1992), quoted in Howard, 208

F.3d at 747. Thus, we have held that federal district courts

properly released claims not alleged in the underlying complaint where those claims depended on the same set of facts

as the claims that gave rise to the settlement. See Reyn’s Pasta

Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 749 (9th Cir.

2006) (affirming dismissal of a class action against credit card

companies predicated on the same price-fixing predicate and

injury as claims settled in an earlier class action, even though

the subsequent suit “posit[ed] a different theory of anticompetitive conduct”); Class Plaintiffs, 955 F.2d at 1286-91

(affirming approval of a settlement relating to certain bond

defaults that released claims by an identical class of plaintiffs

in a pending case that related to the same bond defaults).

We applied the same reasoning to hold that a state court’s

approval of a settlement agreement could release not only the

state law fraudulent billing claims before it, but also federal

RICO claims arising from the same billing practices. Howard,

3860 HESSE v. SPRINT
208 F.3d at 746-48; see also Epstein II, 179 F.3d at 644-45

(discussing the Supreme Court’s holding that members of a

settlement class were bound by the Delaware Court of Chancery’s release of federal claims) (citing Matsushita, 516 U.S.

at 377, 379); Class Plaintiffs, 955 F.2d at 1288 (noting with

approval that “other circuits have held that a state court was

within its power to approve the release of a federal claim,

which could not have been brought in the state court”).

Because the Benney Settlement was approved by order of

a Kansas state court, we apply Kansas law in determining its

preclusive effect. See Howard, 208 F.3d at 748 (“The preclusive effect of a state court judgment in federal court is based

on state preclusion law.”). Kansas courts have not explicitly

applied the identical factual predicate doctrine to determine

the effect of releases of liability in court-approved settlement

agreements, but claim preclusion doctrine in Kansas does not

appear to us to be substantially different from the California

and federal law applied in Howard and Reyn’s Pasta Bella. In

Kansas, “[a] voluntary dismissal of a case with prejudice,

based on a settlement agreement that is approved by the court

and journalized, is a final judgment on the merits.” Honeycutt

v. City of Wichita, 836 P.2d 1128, 1133 (Kan. 1992). Such a

dismissal “is res judicata and bars a later lawsuit on the same

transaction or occurrence.” Id. at 1134; see also Anderson v.

Employers Mut. Cas. Ins. Co., 6 P.3d 918, 923-24 (Kan. Ct.

App. 2000) (holding that a general release does not bar claims

against tortfeasors who are not specifically named in the

release). It appears to us that claim preclusion in Kansas is

guided by the same general principles as in this circuit.

[10] Unlike the claims in Reyn’s Pasta Bella, Howard,

Epstein II, and Class Plaintiffs, which were held to have been

validly released by earlier settlements of related claims, the

Washington Plaintiffs’ claims do not share an identical factual

predicate with the claims resolved in the Benney Settlement.

The claims underlying the Benney Settlement dealt exclusively with specific nationwide surcharges to recoup the costs

HESSE v. SPRINT 3861
of compliance with federal programs, whereas the claims at

issue in the present case involve Sprint’s statewide surcharge

to recoup the cost of the Washington B&O Tax allegedly in

violation of a Washington statute. The superficial similarity

between the two class actions is insufficient to justify the

release of the later claims by the settlement of the former.

Both involve claims that Sprint improperly billed government

taxes or fees to its customers, but they deal with different surcharges, imposed to recoup different costs, that were alleged

to be improper for different reasons. 

[11] Especially relevant to our determination that the

claims lack an identical factual predicate is our observation,

noted above, that the Benney Class Plaintiff did not adequately represent the Washington Plaintiffs as to their B&O

Tax Surcharge claims. The Kansas class action statute, like

Federal Rule 23, requires that a class representative possess

claims “typical of the claims . . . of the class” and that he

“fairly and adequately protect the interests of the class.” Kan.

Stat. Ann. § 60-223(a)(3)-(4); Fed. R. Civ. P. 23(a)(3)-(4).

Under Kansas law, a plaintiff “cannot represent a class in

which she is not a member.” Chamberlain v. Farm Bureau

Mut. Ins. Co., 137 P.3d 1081, 1088 (Kan. Ct. App. 2006). As

a resident of Missouri, Benney’s injury was not typical of the

Washington Plaintiffs’ injury, and, as a result, he failed to

vigorously prosecute their claims or avoid the conflict

between their legal interests. See supra at 3857-59. It seems

to us unlikely that a plaintiff class’s claims would ever be

based on the identical factual predicate as the claims of a third

party who did not adequately represent the class’s interests.

We conclude that the claims raised by the Washington Plaintiffs in this case are not derived from the same “transaction or

occurrence” as the claims of the Benney Class Plaintiff,

Honeycutt, 836 P.2d at 1134, and therefore were not released

by the Benney Settlement.

III. Conclusion

[12] In light of the failure of the Benney Class Plaintiff to

adequately represent the Washington Plaintiffs and the

3862 HESSE v. SPRINT
absence of an identical factual predicate between their respective claims, the Kansas court’s judgment approving the Benney Settlement cannot preclude the Washington Plaintiffs’

unique causes of action, regardless of the expansive release

contained in that judgment. On both grounds, therefore, we

vacate the district court’s order granting summary judgment.

Sprint raises other grounds for summary judgment that the

district court did not have occasion to consider. We do not

reach them now. On remand, the district court should address

Sprint’s alternate grounds for summary judgment.

VACATED and REMANDED.

HESSE v. SPRINT 3863