PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________ _________________ IN RE: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION

------------------------------ ZACHARY WILSON; MATHEW COOK; BRENT DONALDSON; SAMANTHA BAYLARD; CRAIG MASSEY; RICHARD GALAUSKI; WILLIAM BOYD; LISA MCBRIDE; TAMARA MILLER; HEARTL AND LANDSCAPE GROUP LLC; TEAM TRUCKING; JAMES ANLIKER; DENNIS K. MANN; PHYLLIS LERNER ; HERB GLASER; STEVEN RUBIN; MAX CANDIOTTY; FRED AGUIRRE; JAMES JARVAIS; MARA REDSTONE; RAPHAEL SAGALYN; J.C. WASH; JEAN W. NEESE; CECIL R. WILKINS; WAYNE BYRAM; GARY KOHUT; DEBRA BERG; TIA GOMEZ; SHONNA S. BUTLER; BEN DOZIER; MARK SCIVNER; BARBARA CUMBO; JAMES GRAHAM; KENNEDY G. KRAATZ; MELISSA D. MURR AY; MICHAEL A. WARNER; CLINTON J. DAVIS; STEVEN R. RUTHERFORD; LISA ANN LEE; BRENT CRAWFORD; DIXCEE MILLSAP; CARL RITTERHOUSE; SAMUEL ELY; VICTOR RUYBALID; HADLEY BOWER; KRISTY DEANN MOTT; CHARLES COCKRELL, JR.; WILLIAM RUTTHERFORD; JAN RUTHERFORD; MARK WYATT; DAWN LALOR; GERALD PANTO, JR.; EDGER PAZ; CHARLES D. JONES; No. 15-3221 FILED United States Court of Appeals Tenth Circuit 

### September 21, 2017

Elisabeth A. Shumaker Clerk of Court2 MICHAEL GAUTHREAUX; JOANN KORLESKI; JEFF JENKINS; SARA TERRY; JACOB STEED; MARVIN BRYAN; JOHN TELLES; CHRISTOPHER PAYNE; SCOTT CAMPBELL; JONATHAN CHARLES CONLIN; PRISCILLA CRAFT; ROBERT HICKS; RICHARD PATRICK; JESSICA HONIGBERG; RAYS HAUN GLANTON; GARLAND WILLIAMS; ANNIE SMITH; BOBBY ROBERSON; SAM HOTCHKISS; ANNA LEGATES; ANDREA FRAYSER; MELVIN ELLISON; CECIL WILKINS; BETTY CHERRY; JOY HOWELL; ALLEN RAY KLEIN, Plaintiffs - Appellees,

v. CIRCLE K STORES, INC.; PILOT TRAVEL CENTERS, LLC; KUM&GO, L.C.; QUICKTRIP CORPORATION; MURPHY OIL USA, INC.; RACE TRAC PETROLEUM, INC.; MARATHON PETROLEUM COMPANY, LLC; THE PANTRY, INC.; SPEEDWAY SUPERAMERICA, LLC; SHEETZ, INC.; WAWA, INC.; FLYING J INC.; 7- ELEVEN, INC.; PT CAA TEXAS, LP; Defendants - Appellants,

v. CHEVRON USA, INC.; CASEY’S GENERAL STORE, INC.; SINCLAIR OIL CORPORATION; EXXON MOBIL CORPORATION; ESSO VIRGIN ISLANDS, INC. MOBIL OIL GUAM, INC.; BP PRODUCTS NORTH AMERICA INC.,3 Defendants - Appellees, and BP CORPORATION NORTH AMERICA, INC.; CITGO PETROLEUM CORPORATION; CONOCO PHILLIPS COMPANY; VALERO MARKETING AND SUPPLY COMPANY; SUNOCO CORPORATION; EQUILON ENTERPRISES, LLC, d/b/a SHELL OIL PRODUCTS COMPANY, LLC; MOTIVA ENTERPRISES, LLC; TESORO REFINING AND MARKETING COMPANY; SAM’S CLUB; LOVE’S TRAVEL STOP & COUNTRY STORES, INC.; G AND M OIL COMPANY, INC.; UNITED EL SEGUNDO, INC.; WORLD OIL CORPORATION; M.M. FOLWER, INC.; DANSK INVESTMENT GROUP, INC.; B-B OIL COMPANY, INC.; PORT CITIES OIL LLC; FLASH MARKET, INC; J&P FLASH, INC.; MAGNESS OIL COMPANY; COULSON OIL COMPANY, INC.; DIAMOND STATE OIL, LLC; EZ MART STORES, INC.; THORNTONS, INC.,

Defendants.

––––––––––––––––––– –––––––––––––––– IN RE: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION

------------------------------ ZACHARY WILSON; MATHEW COOK; BRENT DONALDSON; SAMANTHA BAYLARD; CRAIG MASSEY; RICHARD GALAUSKI; WILLIAM BOYD; LISA MCBRIDE; TAMARA MILLER; HEARTL AND LANDSCAPE No. 15-32274 GROUP LLC; TEAM TRUCKING; JAMES ANLIKER; DENNIS K. MANN; PHYLLIS LERNER ; HERB GLASER; STEVEN RUBIN; MAX CANDIOTTY; FRED AGUIRRE; JAMES JARVAIS; MARA REDSTONE; RAPHAEL SAGALYN; J.C. WASH; JEAN W. NEESE; CECIL R. WILKINS; WAYNE BYRAM; GARY KOHUT; DEBRA BERG; TIA GOMEZ; SHONNA S. BUTLER; BEN DOZIER; MARK SCIVNER; BARBARA CUMBO; JAMES GRAHAM; KENNEDY G. KRAATZ; MELISSA D. MURR AY; MICHAEL A. WARNER; CLINTON J. DAVIS; STEVEN R. RUTHERFORD; LISA ANN LEE; BRENT CRAWFORD; DIXCEE MILLSAP; CARL RITTERHOUSE; SAMUEL ELY; VICTOR RUYBALID; HADLEY BOWER; KRISTY DEANN MOTT; CHARLES COCKRELL, JR.; WILLIAM RUTTHERFORD; JAN RUTHERFORD; MARK WYATT; DAWN LALOR; GERALD PANTO, JR.; EDGER PAZ; CHARLES D. JONES; MICHAEL GAUTHREAUX; JOANN KORLESKI; JEFF JENKINS; SARA TERRY; JACOB STEED; MARVIN BRYAN; JOHN TELLES; CHRISTOPHER PAYNE; SCOTT CAMPBELL; JONATHAN CHARLES CONLIN; PRISCILLA CRAFT; ROBERT HICKS; RICHARD PATRICK; JESSICA HONIGBERG; RAYS HAUN GLANTON; GARLAND WILLIAMS; ANNIE SMITH; BOBBY ROBERSON; SAM HOTCHKISS; ANNA LEGATES; ANDREA FRAYSER; MELVIN ELLISON; CECIL WILKINS; BETTY CHERRY; JOY HOWELL; ALLEN RAY KLEIN, Plaintiffs - Appellees,5 v. CIRCLE K STORES, INC; PILOT TRAVEL CENTERS, LLC; KUM&GO, L.C.; QUICKTRIP CORPORATION; MURPHY OIL USA, INC.; RACE TRAC PETROLEUM, INC.; MARATHON PETROLEUM COMPANY, LLC; THE PANTRY, INC.; SPEEDWAY SUPERAMERICA, LLC; SHEETZ, INC.; WAWA, INC.; FLYING J INC.; 7- ELEVEN, INC.; PTCAA TEXAS, LP, Defendants - Appellants, CHEVRON USA, INC.; CASEY’S GENERAL STORE, INC.; SINCLAIR OIL CORPORATION; EXXON MOBIL CORPORATION; ESSO VIRGIN ISLANDS, INC.; MOBIL OIL GUAM, INC.; BP PRODUCTS NORTH AMERICA INC., Defendants - Appellees,

and BP CORPORATION NORTH AMERICA, INC.; CITGO PETROLEUM CORPORATION; CONOCO PHILLIPS COMPANY; VALERO MARKETING AND SUPPLY COMPANY; SUNOCO CORPORATION; EQUILON ENTERPRISES, LLC, d/b/a SHELL OIL PRODUCTS COMPANY, LLC; MOTIVA ENTERPRISES, LLC; TESORO REFINING AND MARKETING COMPANY; SAM’S CLUB; LOVE'S TRAVEL STOP & COUNTRY STORES, INC.; G AND M OIL COMPANY, INC.; UNITED EL SEGUNDO, INC.; WORLD OIL CORPORATION; M.M. FOLWER,6 INC.; DANSK INVESTMENT GROUP, INC.; B-B OIL COMPANY, INC.; PORT CITIES OIL LLC; FLASH MARKET, INC; J&P FLASH, INC.; MAGNESS OIL COMPANY; COULSON OIL COMPANY, INC.; DIAMOND STATE OIL, LLC; EZ MART STORES, INC.; THORNTONS, INC.,

Defendants.

––––––––––––––––––– –––––––––––––––– IN RE: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION

------------------------------ ZACHARY WILSON; MATHEW COOK; BRENT DONALDSON; SAMANTHA BAYLARD; CRAIG MASSEY; RICHARD GALAUSKI; WILLIAM BOYD; LISA MCBRIDE; TAMARA MILLER; HEARTL AND LANDSCAPE GROUP LLC; TEAM TRUCKING; JAMES ANLIKER; DENNIS K. MANN; PHYLLIS LERNER ; HERB GLASER; STEVEN RUBIN; MAX CANDIOTTY; FRED AGUIRRE; JAMES JARVAIS; MARA REDSTONE; RAPHAEL SAGALYN; J.C. WASH; JEAN W. NEESE; CECIL R. WILKINS; WAYNE BYRAM; GARY KOHUT; DEBRA BERG; TIA GOMEZ; SHONNA S. BUTLER; BEN DOZIER; MARK SCIVNER; BARBARA CUMBO; JAMES GRAHAM; KENNEDY G. KRAATZ; MELISSA D. MURR AY; MICHAEL A. WARNER; CLINTON J. DAVIS; STEVEN R. RUTHERFORD; LISA ANN LEE; BRENT CRAWFORD; DIXCEE MILLSAP; CARL RITTERHOUSE; SAMUEL ELY; VICTOR RUYBALID; No. 15-32287 HADLEY BOWER; KRISTY DEANN MOTT; CHARLES COCKRELL, JR.; WILLIAM RUTTHERFORD; JAN RUTHERFORD; MARK WYATT; DAWN LALOR; GERALD PANTO, JR.; EDGER PAZ; CHARLES D. JONES; MICHAEL GAUTHREAUX; JOANN KORLESKI; JEFF JENKINS; SARA TERRY; JACOB STEED; MARVIN BRYAN; JOHN TELLES; CHRISTOPHER PAYNE; SCOTT CAMPBELL; JONATHAN CHARLES CONLIN; PRISCILLA CRAFT; ROBERT HICKS; RICHARD PATRICK; JESSICA HONIGBERG; RAYS HAUN GLANTON; GARLAND WILLIAMS; ANNIE SMITH; BOBBY ROBERSON; SAM HOTCHKISS; ANNA LEGATES; ANDREA FRAYSER; MELVIN ELLISON; CECIL WILKINS; BETTY CHERRY; JOY HOWELL; ALLEN RAY KLEIN, Plaintiffs - Appellees,

v. BP CORPORATION NORTH AMERICA, INC.; CITGO PETROLEUM CORPORATION; CONOCO PHILLIPS COMPANY; COSTCO WHOLESALE CORPORATION; EXXON MOBIL CORPORATION; SINCLAIR OIL CORPORATION; VALERO MARKETING AND SUPPLY COMPANY; SUNOCO CORPORATION; EQUILON ENTERPRISES, LLC., d/b/a SHELL OIL PRODUCTS COMPANY, LLC; MOTIVA ENTE RPRISES, LLC; TESORO REFINI NG AND MARKETING COMPANY; SAM’S CLUB; LOVE’S TRAVEL STOP & COUNTRY STORES, INC.; G AND M OIL COMPANY, INC.;8 UNITED EL SEGUNDO, INC.; WORLD OIL CORPORATION; M.M. FOLWER, INC.; J&P FLASH, INC.; DANSK INVESTMENT GROUP, INC.; CIRCLE K STORES, INC; KUM&GO, L.C.; MURPHY OIL USA, INC.; MARATHON PETROLEUM COMPANY, LLC; FLYING J INC.; 7-ELEVEN, INC.; PTCAA TEXAS, LP; PILOT TRAVEL CENTERS, LLC; QUICKTRIP CORPORATION; RACE TRAC PETROLEUM, INC.; THE PANTRY, INC.; SPEEDWAY SUPERAMERICA, LLC; SHEETZ, INC.; WAWA, INC.; B-B OIL COMPANY, INC.; COULSON OIL COMPANY, INC.; PORT CITIES OIL LLC; FLASH MARKET, INC.; J&P FLASH, INC.; DIAM OND STATE OIL, LLC; MAGNESS OIL COMPANY; THORNTON'S, INC., Defendants,

and CHEVRON USA, INC.; EZ MART STORES, INC.; CASEY’S GENERAL STORE, INC., Defendants- Appellees,

v. MELISSA HOLYOAK; ADAM SCHULMAN; AMY AL KON; NICOLAS S. MARTIN; THEODORE H. FRANK, Objectors - Appellants.

––––––––––––––––––– –––––––––––––––– IN RE: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION9 ------------------------------ ANNIE SMITH; CHRISTOPHER PAYNE; PHYLLIS LERNER; HERB GLAZER; MARA REDSTONE; BRENT CRAWFORD; VICTOR RUYBALD; ZACH WILSON; LISA MCBRIDE; RAPHAEL SAGALYN; BRENT DONALDSON; GARY KOHUT; RICHARD GAULAUSKI; CHARLES BYRAM; JEAN NEESE; SHONNA BUTLER; GERALD PANTO, JR.; JOANN KORLESKI; TAMARA MILLER; PRISCILLA CRAFT; JEFF JENKINS; JAMES GRAHAM, Class Representatives, Plaintiffs - Appellees,

v. COSTCO WHOLESALE CORPORATION, Defendant - Appellant,

and

BP PRODUCTS NORTH AMERICA INC.; BP WEST COAST PRODUCTS, LLC; CASEY’S GENERAL STORES, INC.; CITGO PETROLEUM CORPORATION; CONOCOPHILLIPS COMPANY; EQUILON ENTERPRISES LLC, d/b/a Shell Oil Products US; MOTIVA ENTERPRISE S LLC; EXXON MOBIL CORPORATION; MOBIL OIL GUAM, INC.; ESSO VIRGIN ISLANDS, INC.; SAM'S EAST, INC.; SAM’S WEST, INC.; WAL-MART STORES, INC.; WAL-MART STORES EAST, LP; SINCLAIR OIL CORPORATION; No. 15-325410 VALERO MARKETING AND SUPPLY COMPANY; CHEVRON U.S.A., INC.; SUNOCO, INC. (R&M); B-B OIL COMPANY, INC.; COULSON OIL COMPANY, INC.; DIAMOND STATE OIL, LLC; FLASH MARKET, INC.; J&P FLASH, INC.; MAGNESS OILCOMPANY; PORT CITIES OIL, LLC; EZ MART STORES, INC.; LOVE'S TRAVEL STOP & COUNTRY STORES, INC.; WR HESS COMPANY; M.M. FOWLER, INC., d/b/a Family Fare; DANSK INVESTMENT GROUP, INC., f/k/a USA Petroleum Corporation; TESORO REFINI NG AND MARKETING COMPANY; THORNTONS, INC.; G&M OIL COMPANY, INC.; G&M OIL CO., LLC; UNITED EL SEGUNDO, INC.; WORLD OIL CORPORATION, Defendants,

v. SPEEDWAY LLC; 7-ELEVEN, INC.; CIRCLE K STORES, INC; KUM & GO, L.C.; MARATHON PETROLEUM COMPANY LP; MURPHY OIL USA, INC.; PILOT TRAVEL CENTERS, LLC; FLYING J INC.; PTCAA TEXAS, LP; RACETRAC PETROLEUM, INC.; QUIKTRIP CORPORATION; SHEETZ, INC.; THE PANTRY, INC.; WAWA, INC., Objectors.

________________ _________________ ORDER

________________ _________________ Before LUCERO , PHILLIPS , and MORITZ , Circuit Judges.

________________ _________________11 These matters are before the court on the Petition for Panel Rehearing and Rehearing En Banc filed by appellants Alkon, Frank, Holyoak, Martin, and Schulman in number 15-3228. Upon consideration, the panel gr ants in part, and only to the extent of

the modifications contained in the attached revised Opinion, that part of the request seeking panel rehearing. The Opinion filed on August 23, 2 017, is hereby withdrawn, and shall be replaced by the attached revised Opin ion effective the date of this order. The

Clerk is directed to file the a ttached revised Opinion forthwith. That part of this Petition seeking rehearing en banc, as well as the Petition for Rehearing En Banc filed by the Speedway Objector s in numbers 15-3221 and 15-3327, remain pending.

Entered for the Court

ELISABETH A. SHUMAKER, ClerkPUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________ _________________ IN RE: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION

------------------------------ ZACHARY WILSON; MATHEW COOK; BRENT DONALDSON; SAMANTHA BAYLARD; CRAIG MASSEY; RICHARD GALAUSKI; WILLIAM BOYD; LISA MCBRIDE; TAMARA MILLER; HEARTL AND LANDSCAPE GROUP LLC; TEAM TRUCKING; JAMES ANLIKER; DENNIS K. MANN; PHYLLIS LERNER ; HERB GLASER; STEVEN RUBIN; MAX CANDIOTTY; FRED AGUIRRE; JAMES JARVAIS; MARA REDSTONE; RAPHAEL SAGALYN; J.C. WASH; JEAN W. NEESE; CECIL R. WILKINS; WAYNE BYRAM; GARY KOHUT; DEBRA BERG; TIA GOMEZ; SHONNA S. BUTLER; BEN DOZIER; MARK SCIVNER; BARBARA CUMBO; JAMES GRAHAM; KENNEDY G. KRAATZ; MELISSA D. MURR AY; MICHAEL A. WARNER; CLINTON J. DAVIS; STEVEN R. RUTHERFORD; LISA ANN LEE; BRENT CRAWFORD; DIXCEE MILLSAP; CARL RITTERHOUSE; SAMUEL ELY; VICTOR RUYBALID; HADLEY BOWER; KRISTY DEANN MOTT; CHARLES COCKRELL, JR.; WILLIAM RUTTHERFORD; JAN RUTHERFORD; MARK WYATT; DAWN LALOR; GERALD PANTO, JR.; EDGER PAZ; CHARLES D. JONES; No. 15-3221 FILED United States Court of Appeals Tenth Circuit 

### September 21, 2017

Elisabeth A. Shumaker Clerk of Court2 MICHAEL GAUTHREAUX; JOANN KORLESKI; JEFF JENKINS; SARA TERRY; JACOB STEED; MARVIN BRYAN; JOHN TELLES; CHRISTOPHER PAYNE; SCOTT CAMPBELL; JONATHAN CHARLES CONLIN; PRISCILLA CRAFT; ROBERT HICKS; RICHARD PATRICK; JESSICA HONIGBERG; RAYS HAUN GLANTON; GARLAND WILLIAMS; ANNIE SMITH; BOBBY ROBERSON; SAM HOTCHKISS; ANNA LEGATES; ANDREA FRAYSER; MELVIN ELLISON; CECIL WILKINS; BETTY CHERRY; JOY HOWELL; ALLEN RAY KLEIN, Plaintiffs - Appellees,

v. CIRCLE K STORES, INC.; PILOT TRAVEL CENTERS, LLC; KUM&GO, L.C.; QUICKTRIP CORPORATION; MURPHY OIL USA, INC.; RACE TRAC PETROLEUM, INC.; MARATHON PETROLEUM COMPANY, LLC; THE PANTRY, INC.; SPEEDWAY SUPERAMERICA, LLC; SHEETZ, INC.; WAWA, INC.; FLYING J INC.; 7- ELEVEN, INC.; PT CAA TEXAS, LP; Defendants - Appellants,

v. CHEVRON USA, INC.; CASEY’S GENERAL STORE, INC.; SINCLAIR OIL CORPORATION; EXXON MOBIL CORPORATION; ESSO VIRGIN ISLANDS, INC. MOBIL OIL GUAM, INC.; BP PRODUCTS NORTH AMERICA INC.,3 Defendants - Appellees, and BP CORPORATION NORTH AMERICA, INC.; CITGO PETROLEUM CORPORATION; CONOCO PHILLIPS COMPANY; VALERO MARKETING AND SUPPLY COMPANY; SUNOCO CORPORATION; EQUILON ENTERPRISES, LLC, d/b/a SHELL OIL PRODUCTS COMPANY, LLC; MOTIVA ENTERPRISES, LLC; TESORO REFINING AND MARKETING COMPANY; SAM’S CLUB; LOVE’S TRAVEL STOP & COUNTRY STORES, INC.; G AND M OIL COMPANY, INC.; UNITED EL SEGUNDO, INC.; WORLD OIL CORPORATION; M.M. FOLWER, INC.; DANSK INVESTMENT GROUP, INC.; B-B OIL COMPANY, INC.; PORT CITIES OIL LLC; FLASH MARKET, INC; J&P FLASH, INC.; MAGNESS OIL COMPANY; COULSON OIL COMPANY, INC.; DIAMOND STATE OIL, LLC; EZ MART STORES, INC.; THORNTONS, INC.,

Defendants.

––––––––––––––––––– –––––––––––––––– IN RE: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION

------------------------------ ZACHARY WILSON; MATHEW COOK; BRENT DONALDSON; SAMANTHA BAYLARD; CRAIG MASSEY; RICHARD GALAUSKI; WILLIAM BOYD; LISA MCBRIDE; TAMARA MILLER; HEARTL AND LANDSCAPE No. 15-32274 GROUP LLC; TEAM TRUCKING; JAMES ANLIKER; DENNIS K. MANN; PHYLLIS LERNER ; HERB GLASER; STEVEN RUBIN; MAX CANDIOTTY; FRED AGUIRRE; JAMES JARVAIS; MARA REDSTONE; RAPHAEL SAGALYN; J.C. WASH; JEAN W. NEESE; CECIL R. WILKINS; WAYNE BYRAM; GARY KOHUT; DEBRA BERG; TIA GOMEZ; SHONNA S. BUTLER; BEN DOZIER; MARK SCIVNER; BARBARA CUMBO; JAMES GRAHAM; KENNEDY G. KRAATZ; MELISSA D. MURR AY; MICHAEL A. WARNER; CLINTON J. DAVIS; STEVEN R. RUTHERFORD; LISA ANN LEE; BRENT CRAWFORD; DIXCEE MILLSAP; CARL RITTERHOUSE; SAMUEL ELY; VICTOR RUYBALID; HADLEY BOWER; KRISTY DEANN MOTT; CHARLES COCKRELL, JR.; WILLIAM RUTTHERFORD; JAN RUTHERFORD; MARK WYATT; DAWN LALOR; GERALD PANTO, JR.; EDGER PAZ; CHARLES D. JONES; MICHAEL GAUTHREAUX; JOANN KORLESKI; JEFF JENKINS; SARA TERRY; JACOB STEED; MARVIN BRYAN; JOHN TELLES; CHRISTOPHER PAYNE; SCOTT CAMPBELL; JONATHAN CHARLES CONLIN; PRISCILLA CRAFT; ROBERT HICKS; RICHARD PATRICK; JESSICA HONIGBERG; RAYS HAUN GLANTON; GARLAND WILLIAMS; ANNIE SMITH; BOBBY ROBERSON; SAM HOTCHKISS; ANNA LEGATES; ANDREA FRAYSER; MELVIN ELLISON; CECIL WILKINS; BETTY CHERRY; JOY HOWELL; ALLEN RAY KLEIN, Plaintiffs - Appellees,5 v. CIRCLE K STORES, INC; PILOT TRAVEL CENTERS, LLC; KUM&GO, L.C.; QUICKTRIP CORPORATION; MURPHY OIL USA, INC.; RACE TRAC PETROLEUM, INC.; MARATHON PETROLEUM COMPANY, LLC; THE PANTRY, INC.; SPEEDWAY SUPERAMERICA, LLC; SHEETZ, INC.; WAWA, INC.; FLYING J INC.; 7- ELEVEN, INC.; PTCAA TEXAS, LP, Defendants - Appellants, CHEVRON USA, INC.; CASEY’S GENERAL STORE, INC.; SINCLAIR OIL CORPORATION; EXXON MOBIL CORPORATION; ESSO VIRGIN ISLANDS, INC.; MOBIL OIL GUAM, INC.; BP PRODUCTS NORTH AMERICA INC., Defendants - Appellees,

and BP CORPORATION NORTH AMERICA, INC.; CITGO PETROLEUM CORPORATION; CONOCO PHILLIPS COMPANY; VALERO MARKETING AND SUPPLY COMPANY; SUNOCO CORPORATION; EQUILON ENTERPRISES, LLC, d/b/a SHELL OIL PRODUCTS COMPANY, LLC; MOTIVA ENTERPRISES, LLC; TESORO REFINING AND MARKETING COMPANY; SAM’S CLUB; LOVE'S TRAVEL STOP & COUNTRY STORES, INC.; G AND M OIL COMPANY, INC.; UNITED EL SEGUNDO, INC.; WORLD OIL CORPORATION; M.M. FOLWER,6 INC.; DANSK INVESTMENT GROUP, INC.; B-B OIL COMPANY, INC.; PORT CITIES OIL LLC; FLASH MARKET, INC; J&P FLASH, INC.; MAGNESS OIL COMPANY; COULSON OIL COMPANY, INC.; DIAMOND STATE OIL, LLC; EZ MART STORES, INC.; THORNTONS, INC.,

Defendants.

––––––––––––––––––– –––––––––––––––– IN RE: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION

------------------------------ ZACHARY WILSON; MATHEW COOK; BRENT DONALDSON; SAMANTHA BAYLARD; CRAIG MASSEY; RICHARD GALAUSKI; WILLIAM BOYD; LISA MCBRIDE; TAMARA MILLER; HEARTL AND LANDSCAPE GROUP LLC; TEAM TRUCKING; JAMES ANLIKER; DENNIS K. MANN; PHYLLIS LERNER ; HERB GLASER; STEVEN RUBIN; MAX CANDIOTTY; FRED AGUIRRE; JAMES JARVAIS; MARA REDSTONE; RAPHAEL SAGALYN; J.C. WASH; JEAN W. NEESE; CECIL R. WILKINS; WAYNE BYRAM; GARY KOHUT; DEBRA BERG; TIA GOMEZ; SHONNA S. BUTLER; BEN DOZIER; MARK SCIVNER; BARBARA CUMBO; JAMES GRAHAM; KENNEDY G. KRAATZ; MELISSA D. MURR AY; MICHAEL A. WARNER; CLINTON J. DAVIS; STEVEN R. RUTHERFORD; LISA ANN LEE; BRENT CRAWFORD; DIXCEE MILLSAP; CARL RITTERHOUSE; SAMUEL ELY; VICTOR RUYBALID; No. 15-32287 HADLEY BOWER; KRISTY DEANN MOTT; CHARLES COCKRELL, JR.; WILLIAM RUTTHERFORD; JAN RUTHERFORD; MARK WYATT; DAWN LALOR; GERALD PANTO, JR.; EDGER PAZ; CHARLES D. JONES; MICHAEL GAUTHREAUX; JOANN KORLESKI; JEFF JENKINS; SARA TERRY; JACOB STEED; MARVIN BRYAN; JOHN TELLES; CHRISTOPHER PAYNE; SCOTT CAMPBELL; JONATHAN CHARLES CONLIN; PRISCILLA CRAFT; ROBERT HICKS; RICHARD PATRICK; JESSICA HONIGBERG; RAYS HAUN GLANTON; GARLAND WILLIAMS; ANNIE SMITH; BOBBY ROBERSON; SAM HOTCHKISS; ANNA LEGATES; ANDREA FRAYSER; MELVIN ELLISON; CECIL WILKINS; BETTY CHERRY; JOY HOWELL; ALLEN RAY KLEIN, Plaintiffs - Appellees,

v. BP CORPORATION NORTH AMERICA, INC.; CITGO PETROLEUM CORPORATION; CONOCO PHILLIPS COMPANY; COSTCO WHOLESALE CORPORATION; EXXON MOBIL CORPORATION; SINCLAIR OIL CORPORATION; VALERO MARKETING AND SUPPLY COMPANY; SUNOCO CORPORATION; EQUILON ENTERPRISES, LLC., d/b/a SHELL OIL PRODUCTS COMPANY, LLC; MOTIVA ENTE RPRISES, LLC; TESORO REFINI NG AND MARKETING COMPANY; SAM’S CLUB; LOVE’S TRAVEL STOP & COUNTRY STORES, INC.; G AND M OIL COMPANY, INC.;8 UNITED EL SEGUNDO, INC.; WORLD OIL CORPORATION; M.M. FOLWER, INC.; J&P FLASH, INC.; DANSK INVESTMENT GROUP, INC.; CIRCLE K STORES, INC; KUM&GO, L.C.; MURPHY OIL USA, INC.; MARATHON PETROLEUM COMPANY, LLC; FLYING J INC.; 7-ELEVEN, INC.; PTCAA TEXAS, LP; PILOT TRAVEL CENTERS, LLC; QUICKTRIP CORPORATION; RACE TRAC PETROLEUM, INC.; THE PANTRY, INC.; SPEEDWAY SUPERAMERICA, LLC; SHEETZ, INC.; WAWA, INC.; B-B OIL COMPANY, INC.; COULSON OIL COMPANY, INC.; PORT CITIES OIL LLC; FLASH MARKET, INC.; J&P FLASH, INC.; DIAM OND STATE OIL, LLC; MAGNESS OIL COMPANY; THORNTON'S, INC., Defendants,

and CHEVRON USA, INC.; EZ MART STORES, INC.; CASEY’S GENERAL STORE, INC., Defendants- Appellees,

v. MELISSA HOLYOAK; ADAM SCHULMAN; AMY AL KON; NICOLAS S. MARTIN; THEODORE H. FRANK, Objectors - Appellants.

––––––––––––––––––– –––––––––––––––– IN RE: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION9 ------------------------------ ANNIE SMITH; CHRISTOPHER PAYNE; PHYLLIS LERNER; HERB GLAZER; MARA REDSTONE; BRENT CRAWFORD; VICTOR RUYBALD; ZACH WILSON; LISA MCBRIDE; RAPHAEL SAGALYN; BRENT DONALDSON; GARY KOHUT; RICHARD GAULAUSKI; CHARLES BYRAM; JEAN NEESE; SHONNA BUTLER; GERALD PANTO, JR.; JOANN KORLESKI; TAMARA MILLER; PRISCILLA CRAFT; JEFF JENKINS; JAMES GRAHAM, Class Representatives, Plaintiffs - Appellees,

v. COSTCO WHOLESALE CORPORATION, Defendant - Appellant,

and

BP PRODUCTS NORTH AMERICA INC.; BP WEST COAST PRODUCTS, LLC; CASEY’S GENERAL STORES, INC.; CITGO PETROLEUM CORPORATION; CONOCOPHILLIPS COMPANY; EQUILON ENTERPRISES LLC, d/b/a Shell Oil Products US; MOTIVA ENTERPRISE S LLC; EXXON MOBIL CORPORATION; MOBIL OIL GUAM, INC.; ESSO VIRGIN ISLANDS, INC.; SAM'S EAST, INC.; SAM’S WEST, INC.; WAL-MART STORES, INC.; WAL-MART STORES EAST, LP; SINCLAIR OIL CORPORATION; No. 15-325410 VALERO MARKETING AND SUPPLY COMPANY; CHEVRON U.S.A., INC.; SUNOCO, INC. (R&M); B-B OIL COMPANY, INC.; COULSON OIL COMPANY, INC.; DIAMOND STATE OIL, LLC; FLASH MARKET, INC.; J&P FLASH, INC.; MAGNESS OILCOMPANY; PORT CITIES OIL, LLC; EZ MART STORES, INC.; LOVE'S TRAVEL STOP & COUNTRY STORES, INC.; WR HESS COMPANY; M.M. FOWLER, INC., d/b/a Family Fare; DANSK INVESTMENT GROUP, INC., f/k/a USA Petroleum Corporation; TESORO REFINI NG AND MARKETING COMPANY; THORNTONS, INC.; G&M OIL COMPANY, INC.; G&M OIL CO., LLC; UNITED EL SEGUNDO, INC.; WORLD OIL CORPORATION, Defendants,

v. SPEEDWAY LLC; 7-ELEVEN, INC.; CIRCLE K STORES, INC; KUM & GO, L.C.; MARATHON PETROLEUM COMPANY LP; MURPHY OIL USA, INC.; PILOT TRAVEL CENTERS, LLC; FLYING J INC.; PTCAA TEXAS, LP; RACETRAC PETROLEUM, INC.; QUIKTRIP CORPORATION; SHEETZ, INC.; THE PANTRY, INC.; WAWA, INC., Objectors.

________________ _________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 2:07-MD-01840-KHV)

________________ _________________11 Tristan L. Duncan, Shook, Hardy & Bacon, L.L.P., Kansas City, Missouri, (William F. Northrip and Sarah Lynn Baltzell, Shoo k, Hardy & Bacon, L.L.P., Kansas City, Missouri, Stephen R. McA llister, Thompson Ramsdell Qualseth & Warner, P.A., Lawrence, Kansas, and Jonath an S. Massey, Massey & Ga il, LLP, Washington, D.C., with her on the briefs) for Speedway LLC, 7- Eleven, Inc., Circle K Stores, Inc., Kum & Go, L.C., Marathon Petroleum Company LLC , Murphy Oil USA, Inc., Pilot Travel Centers LLC, Flying J, Inc., The Pantry, Inc., QuikTrip Corporation, RaceTrac, Petroleum, Inc., Sheetz , Inc., and Wawa, Inc., Defendant-Appellants. Theodore H. Frank, Competitive Enterpri se Institute Center for Class Action Fairness, Washington, D.C., (Anna St. John and Adam E. Schulman, Competitive Enterprise Institute Center for Class Acti on Fairness, Washington, D.C., with him on the brief) for Amy Alkon, Theodore H. Fra nk, Melissa Holyoak, Nicolas S. Martin, and Adam Schulman, Objector-Appellants. Joseph R. Palmore, Morrison & Foerster , LLP, Washington, D.C., (David F. McDowell, and Purvi G. Pate l, Morrison & Foerster, LLP, Los Angeles, California, and Bryan J. Leitch, Morris on & Foerster, LLP, Washington, D.C., with them on the briefs) for Costco Wholesale Co rporation, Defendant-Appellant. Daniel V. Dorris, Kellogg, Huber, Ha nsen, Todd, Evans & Figel, P.L.L.C., Washington, D.C., and Robert A. Horn, Ho rn Aylward & Bandy, LLC, Kansas City, Missouri, (Thomas V. Bende r, Walters Bender Strohbe hn & Vaughn, P.C., Kansas City, Missouri, Joseph A. Kronawitter, Horn, Aylward & Bandy, LLC, Kansas City, Missouri, David C. Frederic k and Amelia I.P. Frenkel, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washingt on, D.C., with them on the briefs) for Plaintiff-Appellees

________________ _________________ Before LUCERO , PHILLIPS , and MORITZ , Circuit Judges.

________________ _________________ MORITZ , Circuit Judge.

________________ _________________ Consumers purchase gasoline by the gall on. But gas expands as it heats up.

And that means the number of molecules— and, accordingly, the amount of energy— in a gallon of gas will vary based on the temperature at which it’s dispensed. Yet

retailers don’t control for the e ffects of temperature when th ey sell gas to consumers.12 So consumers who purchase gas dispensed at higher temperatures may be getting less energy than they expect. These simple laws of physics gave ri se to complex litigation. Several individuals in multiple st ates (collectively, the pl aintiffs) brought class action lawsuits against various fuel retailers (collectively, the defendants) based on the

defendants’ failure to control for, or at least disclose, the effects of temperature on fuel. In 2007, the Judicial Panel on Multidis trict Litigation conso lidated these cases and designated the District of Kans as as the transferee district. After years of legal wrangling, several of the parties entere d into settlement agreements, which the district court ultim ately approved. These appeals arise from (1) the district court’s approval of t hose settlement agreem ents and (2) its interpretation of one of them. We consolid ated the appeals for procedural purposes

and now affirm.

B ACKGROUND I. The Costco Settlement Agreement

The first defendant to settle was Cost co Wholesale Corporation (Costco).

Under Sections 4.2 and 4.3 of the Cost co settlement agreement (the Costco Agreement), Costco agreed to convert pumps at its existing gas stations in certain states to Automatic Temperature Control (A TC) pumps, and to install ATC pumps at its new gas stations in certain states. A nd under Section 4.4, Costco agreed to a specific “[i]mplementation [p]eriod”: it would “complete the conversion and13 installation of ATC set forth in sections 4.2 and 4.3 . . . with in five years” at a certain yearly rate. Costco App. 178. But these requirements were n’t absolute. Section 4.7 of the Costco Agreement contains the following language: Other Agreements. If at any time prior to the completion of conversion and installation of ATC, Class Coun sel and Class Representatives agree to enter into any agreement with a ny person or company to resolve any action or any other pending or threat ened claim concerning ATC that is materially more favorable to that person or company than this Amended Settlement Agreement is to Costco (including, without limitation, calling for a lower conversion percenta ge, slower rate of conversion to ATC or for completion of conversi on to ATC at a later date than required by Section 4.4), Class Counse l and Class Representatives agree to notify Costco promptly of the term s of such agreement. At Costco’s sole discretion, it may adopt the mate rially more favorable terms in any such agreement in place of its obligations under Section 4.4. Costco agrees to notify Class Counsel and Cl ass Representatives in writing of any such election. The Parties agr ee that any change in Costco’s obligations under Section 4.4 as a resu lt of any such election that is not a change that is materially adve rse to the Settlement Class does not require additional notice to the class.

Id. at 180. The district court approved the Costco Agreement on April 24, 2012. Nearly two years later, several of the plai ntiffs agreed, via a “STIPULATION OF DISMISSAL WITH PREJUDICE” (the Stipul ation), to dismi ss their individual claims against several othe r defendants. App. vol. 16, 4538. And unlike the Costco Agreement, the Stipulation didn’t require a ny of those other defendants to implement ATC at all, let alone to do so by a certain date and on a certain schedule. Understandably viewing this result as more fa vorable than the one it obtained, Costco

filed notice of its intent to invoke its rights under Secti on 4.7. It then asked the14 district court to grant Cost co leave to adopt the “terms” of the Stipulation and to dismiss the plaintiffs’ clai ms against Costco with pr ejudice. Costco. App. 250. The district court denied both request s. In doing so, it concluded that (1) Section 4.7 only applies to agreemen ts that “concern the implementation of ATC”—e.g., agreements that “ call[] for a lower conversion percentage, a slower rate of conversion to ATC[,] or completion of conversion to ATC at a later date than required by Section 4.4” of the Costco Agreement, id. at 255; and (2) because the Stipulation didn’t require the dismissed defendants to implement ATC at all, it necessarily didn’t “concern th e implementation of ATC,” id. at 254-55. Accordingly,

the district court refused to let Costco adopt the “t erms” in the Stipulation, id. at 250, or to dismiss the claims ag ainst Costco with prejudice. II. The Remaining Se ttlement Agreements In the meantime, the plaintiffs negotia ted settlement agreem ents with 28 other

defendants. For reasons we set forth in Discussion Section II, infra , only nine of those settlement agreements (plus the Costco Agreement) are at issue here: the plaintiffs’ settlement agreements w ith defendants BP, Chevron, Citgo, ConocoPhillips, ExxonMobil, Shell, Sinclair, Sunoco, and Valero. These ten settlement agreements fall into two general categorie s, which we refer to as

conversion settlements a nd fund settlements.

The Costco and Valero settlements ar e conversion settlements. Much like Costco, Valero agreed to convert existing pumps in certain states to ATC and to install ATC pumps at new stat ions in certain states.15 The remaining settlement ag reements are fund settle ments. They require BP, Chevron, Citgo, ConocoPhillip s, ExxonMobil, Shell, Sinc lair, and Sunoco each to pay a certain sum—ranging from $61,000 to $5,000,000—into a common fund.

Under the terms of the settlem ent agreements, portions of that fund may be used to (1) reimburse fuel retailers for expenses they incur if they convert to ATC; and (2) defray costs that state agen cies incur if those states agree to permit or require

ATC at resale. Neither the conversion se ttlements nor the fund settlements provide any money to clas s members. As relevant here, two groups of objectors lodged objecti ons to some or all of the relevant settlement agreements. We refer to the first group of objectors, comprising class members Amy Alkon, Nicolas Martin, Theodore H. Frank, Melissa Holyoak, and Adam Schulman, collectively as “Alkon.” We refer to the second group of objectors, comprising non-settling defe ndants QuikTrip Corporation, 7-Eleven, Inc., Circle K Stores, Inc., Kum & Go, L.C., Marathon Petroleum Company LP, Murphy Oil USA, Inc., Pilot Travel Center s, LLC, Flying J, Inc., PTCAA Texas, LP, RaceTrac Petroleum, Inc., Sh eetz, Inc., Speedway LLC, Th e Pantry, Inc., and Wawa, Inc., collectively as “Speedway.” Alkon objected to the settlement ag reements on numerous grounds, arguing that (1) approval of the settlement ag reements violates the First Amendment; (2) approval of the settlement agreements violates sepa ration-of-powers principles; (3) ATC conversion harms so me class members and conf ers no benefit on others; (4) the settlement agreements afford preferential treatment to class counsel by paving16 the way for excessive attorney ’s fees; and (5) Fed. R. Ci v. P. 23(b)(3)’s superiority requirement precludes class certification. Speedway advanced similar objections, arguing that approval of the settlement agre ements (1) violates the First Amendment; (2) violates Article III of the United Stat es Constitution; and (3 ) poses separation-ofpowers problems. The district court addr essed and rejected these objections and ultimately approved the se ttlement agreements. Costco now appeals the district court’s or der refusing to allow it to exercise its rights under Section 4.7 of the Costco Ag reement. Alkon and Speedway both appeal the district court’s order approving the remaining settlement ag reements, and Alkon additionally appeals the district court’s order approving the Costco Agreement.

D ISCUSSION I. Costco isn’t entitled to invok e its rights under Section 4.7.

Costco asserts that the district court erre d in refusing to allow it to exercise its rights under Section 4.7 of the Costco Agr eement. Because this argument presents a question of contract interpreta tion, our review is de novo. In re Universal Serv. Fund Tel. Billing Practice Litig. , 619 F.3d 1188, 1211 (10th Cir. 2010). In denying Costco’s motion, the district court relied in part on the fact that Section 4.7 applies only if “C lass Counsel and Class Repr esentatives agree to enter into any agreement with any person or co mpany to resolve any action or any other pending or threatened claim concerning ATC .” Costco App. 180 (emphasis added). Specifically, the district c ourt concluded that the phras e “concerning ATC” modifies17 the term “agreement,” and thus that only agreements “concerning ATC” can trigger Costco’s rights under Section 4.7. Costco argues this was erro r. Citing the last-antecedent rule, it maintains that the phrase “concerning ATC” modifies its nearest ant ecedents—i.e., “claim” and “action”—and not, as the district court f ound, the more remote term “agreement.” See Caughey v. Emp’t Sec. Dep’t , 503 P.2d 460, 463 (Wash. 1972) 1 (explaining that “qualifying words and phrases ” typically “refer to the last antecedent”). But as the plaintiffs corr ectly point out, the last-ant ecedent rule only operates if “no contrary intention appears” in the contract. Id. And here, the district court implicitly concluded that Se ction 4.7’s parenthetical list of examples evinces just such a “contrary intention.” Id. We agree. By giving a parenthetical li st of examples of agreements that concern ATC—i.e., agreements that “call[] for a lower conversion percentage, slower rate of conversion to ATC, or for comple tion of conversion to ATC at a later date”— rather than examples of “clai ms” or “actions” concerning ATC, Costco App. 180, Section 4.7 expresses an “intention” that is “contrary” to the general rule that “qualifying words and phrases refe r to the last antecedent,” Caughey , 503 P.2d at 463. Specifically, Section 4.7’s parenthetical list indicates that rather than modifying its nearest antecedents, th e phrase “concerning ATC” in stead modifies the term “agreement.” Costco App. 180.

1 The Costco Agreement speci fies that it “is intended to and shall be governed by the laws of the State of Wa shington.” Costco App. 134.18 Costco resists this conclusion. It points out that Section 4.7’s parenthetical list of examples is preceded by the phra se “including, w ithout limitation.” Id. Thus, Costco concludes, the district court erred in using Section 4.7’s parenthetical list of specific examples to limit th e general phrase “any agreement” to agreements that are

similar to those in Section 4.7’s parenthetical list—i.e., agreements that concern

ATC. 2 Id. In support, Costco cites United States v. West , 671 F.3d 1195 (10th Cir. 2012). There, we acknowledged that the principle of ejusdem generis “[o]rd inarily . . . limits general terms which follow specific ones to matters similar to those specified.” Id. at

1200 (alterations in original) (quoting Gooch v. United States , 297 U.S. 124, 128 (1936)). But we declined to apply that in terpretive canon to the statute at issue in

West , in part because Congress prefaced that statute’s li st of examples with the phrase “including, but not limited to.” Id. at 1200 (emphasis omitted) (quoting 21 U.S.C. § 860(e)(1)); see also id. at 1201-02.

Much like the stat ute at issue in West , Section 4.7 prefaces it s list of examples with the phrase “including, without limitation.” Costco App. 180; see 671 F.3d at

1200. But unlike our task in West —which was to discern “Congress’ intent in

2 In its reply brief, Costco advances a different, albeit re lated, argument: it asserts that the district cour t erred in relying on Section 4.7’s parenthetical list of examples because “allowing a ‘parenthetical to drive the interpretation of the whole provision’ would impermissibly permit the ‘t ail to wag the dog.’” Costco Rep. Br. 9 (quoting Cabell Huntington Hosp., Inc. v. Shalala , 101 F.3d 984, 9 90 (4th Cir. 1996)). Because Costco didn’t advance this argument in its opening brief, we decline to consider it. See Reedy v. Werholtz , 660 F.3d 1270, 1274 (10th Cir. 2 011) (“[A] party waives issues and arguments raised for the first time in a reply brief.” (quoting M.D. Mark, Inc. v. KerrMcGee Corp. , 565 F.3d 753, 768 n. 7 (10th Cir. 2009))).19 enacting” the relevant statute, 671 F.3d at 1200—our task here is to determine how the Supreme Court of Washington would interpret Section 4.7, cf. Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd. , 616 F.3d 1086, 10 93 (10th Cir. 2010) (“[O]ur task in diversity case s is to predict how the state supreme court would rule.”). And that court recently applied ejusdem ge neris to a statutory list despite the presence of a similar introductory phrase. See State v. Larson , 365 P.3d 740 (Wash. 2015).

In Larson , the court examined a statute that prohibited, in relevant part, the “possession of an item, arti cle, implement, or device de signed to overcome security systems including, but not limited to , lined bags or tag removers.” Id. at 741 (emphasis added) (quoting Wash. Re v. Code § 9A.56.360(1)(b)). The court agreed with the State that “[t]he st atutory language ‘including, but not limited to’” indicated that “lined bags and tag removers” were “illustrative examples rather than an

exhaustive list.” Id. at 743 (quoting § 9A.56.360(1)(b)). But “contrary to the State’s assertions,” the court also concluded that those “illustr ative examples were intended to limit the scope of the statute” to similar items. Id. (emphasis omitted). And in reaching that conclusion, the court applie d the limiting canon of ejusdem generis. See

id.

Under Larson , we conclude that Section 4.7’ s use of the phrase “including, without limitation” indicates that agr eements “calling for a lower conversion percentage, slower rate of conversion to ATC, or for completion of conversion to ATC at a later date,” Costco App. 180, ar e “illustrative examples ” of the types of20 agreements that will trigger Section 4.7, “rather than an e xhaustive list” of the agreements that will do so, 365 P.3d at 743. But, under Larson , we likewise conclude

that Section 4.7’s list of “illustrative examples” neve rtheless demonstrates an “inten[t] to limit the scope of ” Section 4.7 to agreements that are “similar” to those examples. 365 P.3d at 743. And, under Larson , we reach that c onclusion despite the fact that Section 4.7 preface s its list of illustrative examples with the phrase “including, without limitation.” 3 Costco App. 180; see Larson , 365 P.3d at 743. Alternatively, even assuming that ejusde m generis applies, Costco argues that “the most general quality shar ed by Section 4.7’s [examples] is . . . that they all minimize or eliminate Costco’s obligations under the settlement,” not that they all concern the implementation of ATC. Co stco Rep. Br. 11. And because the Stipulation—if Costco were allowed to adopt it—would share this general quality, Costco asserts that the Stipulation tri ggered Costco’s right s under Section 4.7. We find this argument foreclosed by S ection 4.7’s plain language, which only allows Costco to “adopt the ma terially more favorable term s in any . . . agreement in

3 As Costco points out, “courts have hi storically employed the principle of ejusdem generis to limit general terms following specific terms.” West , 671 F.3d at 1200 (emphasis omitted). But Washingt on applies the canon more broadly. See Larson , 365 P.3d at 743 (applying ejusdem generis where li st of specific terms followed more general ones); Sw. Wash. Chapter, Nat. El ec. Contractors Ass’n v. Pierce Cty. , 667 P.2d 1092, 1096 (Wash. 1983) (explaining that ejusdem generis applies to “pattern su ch as ‘[specific], [spe cific], or [general]’ or ‘[general], including [specific] and [specific]’” (alte rations in original) (emphasis added)). Accordingly, the fact that Section 4.7’s pare nthetical list of spec ific examples follows the general term “any agreemen t,” Costco. App. 180, rather than vice versa, doesn’t alter our analysis.21 place of its obligations under Section 4.4 .” Costco App. 180 (emphasis added). Section 4.4 requires Costco to “complete the conversion and inst allation of ATC set

forth in sections 4.2 and 4. 3 above within five years of the Effective Date in accordance with the following schedule.” Id. at 178. Sections 4.4.1 through 4.4.5

then set out the schedule under which Costco must implement ATC. In comparison,

Section 4.2 states that Cost co will convert pumps at ex isting stations to ATC. And

Section 4.3 states that Costco will in stall ATC pumps at any new stations. By specifying that Costco may only re place its obligations under Section 4.4— rather than its obligations under Sections 4.2 and 4.3—S ection 4.7 operates to allow Costco to adopt from other ag reements only those more fa vorable terms that govern how quickly and thoroughly it must implement ATC un der Section 4.4, not to

substitute more favorable te rms governing whether or not it must implement ATC at

all under Sections 4.2 and 4.3. Costco disagrees with this analysis. It insists that Section 4.7 allows it to replace not only its “obligations under Section 4.4, but also those listed in Sections 4.2 and 4.3.” Costco Aplt. Br. 34. In support , it points out that Sec tions 4.2, 4.3, and 4.4 are all explicitly “subject to” one another and to Section 4.7. Id. at 35 (quoting Costco App. 177-78). The plaintiffs argue that Costco forfeit ed this argument by failing to raise it

before the district court. In response, Costco’s reply brie f directs our attention to a single sentence in its briefing below. There, Costco pointed out that Sections 4.2 and 4.3 “expressly provide that Costco’s obliga tion to install ATC is ‘[s]ubject to the22 other provisions in this Agreement,’” including Section 4.7. Costco App. 220 (alternation in original) ( quoting Costco App. 177). But even assuming we could characteri ze this single sentence as “argument,” Costco “failed to identify in its opening brief where it raised this argument before the

district court.” Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc. , 82 F.3d 1533, 1540 n.3 (10th Cir. 1996) (emphasi s added) (declining to cons ider appellant’s argument where appellant failed to provide record citation in opening brief establishing it raised argument below); see also 10th Cir. R. 28.2(C)(2) (“For each issue raised on appeal, all briefs must cite the precise reference in th e record where the issue was raised and ruled on.”). Moreover, on appeal, Costco doesn’t mere ly argue that Sections 4.2 and 4.3 are subject to Section 4.7, as it (at least cursorily) suggest ed below. Instead, Costco argues on appeal that Sections 4.2, 4.3, and 4.4 ar e all subject to each other , and that

all three sections are theref ore “interdependent” and “sta nd or fall together.” Costco Aplt. Br. 35. Because the plai ntiffs are correct that Co stco (1) didn’t raise this specific argument below and (2) doesn’t atte mpt to establish plain error on appeal, we decline to consider this argument. See Schrock v. Wyeth, Inc. , 727 F.3d 1273, 1284 (10th Cir. 2013) (explaining that forfeiture rule applies to ne w theory presented on appeal, even if that theory falls under same general category as argument presented below); Richison v. Ernest Grp., Inc ., 634 F.3d 1123, 1131 (10th Cir. 2011) (noting that failure to argue for plain e rror on appeal “surely marks the end of the

road” for forfeit ed argument).23 Further, we reject the suggestion Cost co did make below—i.e., that simply

because Sections 4.2 and 4. 3 are “[s]ubject to” Section 4.7 means that Costco can replace its obligations under S ections 4.2 and 4.3, as oppos ed to its obligations under Section 4.4, with more favorable terms. Costco App. 177. First, if this were the case, the parties would have had no reason to specifically refer to Section 4.4 in Section 4.7; Section 4.4 is, like Sect ions 4.2 and 4.3, also “[s]ub ject to” Section 4.7. Costco App. 178. Second, when viewed together , Section 4.7’s list of representative examples—e.g., “calling for a lower conversi on percentage, slower rate of conversion to ATC, or for completion of conversion to ATC at a later date than required by Section 4.4”—and its explicit language allowing Costco to “adopt . . . materially

more favorable terms . . . in place of its obligations under Section 4.4 ,” Costco App. 180 (emphasis added), make clear that Se ction 4.7 is only tri ggered by agreements that contain more favorable terms concerning how to implement ATC under Section 4.4, not whether to implement ATC under Section 4.2 and 4.3. Costco again disagrees. It insists th at Section 4.7’s examples are actually consistent with applying Sec tion 4.7 to agreements that, like the Stipulation, don’t require any ATC implementation. “For exampl e,” Costco argues, “‘a lower conversion percentage’ is consistent with the [S]tipulation’s terms requiring a zero ‘conversion percentage.’” Costco Aplt. Br. 36 (quoting Costco App. 180). Likewise,

“a ‘slower rate of conversion to ATC’ is consistent with the [S]tipulation’s terms requiring no ‘rate of conversion to ATC.’” Id. (quoting Costco App. 180). And finally, “‘completion of convers ion to ATC at a later date ’ is consistent with the24 [S]tipulation’s terms requiring no ‘completion of conversion to ATC’ at any date.”

Id. (quoting Costco App. 180). We reject this argument. First, contra ry to Costco’s characterization, the Stipulation doesn’t actually cont ain any such express “terms.” Id. It simply states that

the individual defendants “are dismissed with prejudice from the separate civil actions.” App. Vol. 16, 4538. Second, even if we were inclined to trea t such “terms,” Cost co Aplt. Br. 36, as implicit in the Stipulation, the fact re mains that Washington law requires us to “impute [to the partie s] an intention corresponding to the reasonable meaning of the words [they] used” in draf ting the Costco Agreement. Hearst Commc’ns, Inc. v.

Seattle Times Co. , 115 P.3d 262, 267 (Wash. 2005); see id. (“We generally give words in a contract their ordinary, usual, and popular meaning unless the entirety of the agreement clearly demonstr ates a contrary intent.”). And rather than giving the words in Section 4.7’s examples their “reasonable,” “ordinary,” and “popular” meanings, id. , Costco’s argument gives them tort ured and unnatura l ones. We don’t ordinarily say a car is “moving zero miles per hour”; we say it isn’t moving. We don’t typically say a car is “ accelerating at a rate of zero miles per hour”; we say it isn’t accelerating. And we certainly don’t say that a car that’s never coming will “arrive at a later date”; we simply say it will never arrive. Thus, Section 4.7’s examples don’t support Costco’s position. Costco advances one final argument on ap peal. It asserts th at the district court’s conclusion that Section 4.7 only applies to agreements that concern how to25 implement ATC, as opposed to whether to do so, undermines Section 4.7’s purpose. In support, Costco points out that district court’s interpretation would allow Costco to assert its rights under Section 4.7 in res ponse to a later agreem ent that contains materially more favorable terms— “but only if such terms are not too ‘materially more favorable.’” Costco Aplt. Br. 33. In other words, while Costco could adopt later settlement terms that require a slower conversion to ATC, it couldn’t adopt later settlement terms that would require no conversion to ATC. Id. And according to Costco, this result is contrary to “the parties’ intent.” Id. at 34. But as the plaintiffs point out, this argument asks the panel to look beyond the plain language of Section 4.7 to the parties’ subjective intent in drafting that agreement. And under Washington law, “the subjective intent of the parties is generally irrelevant if

the intent can be determined from the actual words used.” Hearst , 115 P.3d at 267. Here, we can determine the parties’ intent “from the actual words [they] used.” Id. Specifically,

we can determine their intent from (1) Section 4.7’s language indicating that Section 4.7 only applies to agreements “concerning AT C,” Costco App. 180; (2) Section 4.7’s parenthetical list of examples, which all desc ribe how a party must implement ATC, as opposed to whether it must do so; and (3) Section 4.7’s repe ated references to Section 4.4, which likewise details how Costco must implement ATC, as opposed to Sections 4.2 and 4.3, which instead explai n whether it must do so. Taken together, these three aspects

of Section 4.7 demonstrate that the parties never intended to allow Costco to replace its obligations regarding whether to implement ATC under Sections 4.2 and 4.3 with more favorable terms. Instead, they only intended to allow Costco to replace its obligations26 regarding how to implement ATC under Section 4.4 with such terms. And because that intent is evident from “the actual words [the pa rties] used” in Sectio n 4.7, we decline to look beyond those wo rds to the parties’ subjective intent. Hearst , 115 P.3d at 267. Accordingly, we affirm the district court’ s order denying Costco’s motion to invoke its rights under Section 4.7.

II. The district court didn’t abuse its discretion in approving the settlement agreements. Both Speedway and Alkon appeal the di strict court’s order approving the remaining 28 settlement agreemen ts. And Alkon additionally ap peals the district court’s order approving the Costco Agreement. But be fore we may consider the merits of their challenges, we must first determine whethe r Speedway and Alkon have standing to

advance them. A. Although Speedway lacks standing to object to any of the settlement agreements, Alkon has standing to challenge 10 of them. Speedway asserts that it obj ected to all of the settleme nt agreements except the Costco agreement. But the district court conc luded that Speedway failed to demonstrate it had Article III standing to ch allenge any of them. Speedway challenges this ruling on appeal, arguing that (1) it has standing under the plain-legal-prejudice doctrine; (2) it has standing under Bond v. United States , 564 U.S. 211 (2011); and (3) it has standing to challenge eight of the settlement agreements as a member of the underlying settlement

classes. “The doctrine of standing is ‘an essen tial and unchanging part of the case-orcontroversy requirement of Article III . . . .’” Ne. Fla. Chapter of Associated Gen.27 Contractors of Am. v. City of Jacksonville , 508 U.S. 656, 663 (1993) (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 560 (1992)). To esta blish standing, a party must demonstrate (among other thin gs) an “injury in fact,” id. (quoting Lujan , 504 U.S. at 560)—i.e., “an invasion of a legally protected interest,” id. Non-settling defendants like Speedway “gen erally have no standing to complain

about a settlement.” Weinman v. Fid. Cap ital Appreciation Fund ( In re Integra Realty Res., Inc. ), 262 F.3d 1089, 1102 ( 10th Cir. 2001) (quoting Transamerican Ref. Corp. v. Dravo Corp. , 952 F.2d 898, 900 (5th Cir. 1992)). Th at’s because they lack “a legally protected interest in the settlement” and ther efore can’t satisfy Artic le III’s injury-in-fact requirement. Id. But as Speedway points out, “[c]our ts have recognized a limited exception to this rule where nonsettling partie s can demonstrate they are ‘prejudiced’ by

a settlement.” Id. “‘[P]rejudice’ in this context means ‘plain legal prejudice,’ as when ‘the settlement strips the party of a legal claim or cause of action.’” Id. (alteration in original) (quoting Mayfield v. Barr , 985 F.2d 1090, 1093 (D.C. Cir. 1993)). Here, Speedway asserts it qua lifies for this exception be cause (1) “the settlements prejudice [its] legal right to co nduct business as [it has] histor ically done and as currently authorized by law,” Spdwy. Aplt. Br. 48; and (2) the settlements burden its speech. But as the plaintiffs suggest, these alleged injuries d on’t rise to the level of plain legal prejudice

as we have defined it. 4 See New England Health Care Em ps. Pension Fund v. Woodruff ,

4 Perhaps realizing as mu ch, Speedway argues for the first time in its reply brief that the settlement agre ements “risk depriving [it] of the defenses asserted in this litigation.” Spdwy. Rep. Br. 20. But Speedway conceded below that the settlement agreements didn’ t “place[]” Speedway “at a ‘t actical’ disadvantage in the28 512 F.3d 1283, 1288 (10th Cir. 2008) (explaining that plain legal prejudice “include[s] any interference with a party’s contract rights or a party’s ability to seek contribution or indemnification,” and that “[a] party also su ffers plain legal prejudice if the settlement strips the party of a legal claim or cause of ac tion, such as a cross[-]claim or the right to present relevant eviden ce at trial” (quoting Weinman , 262 F.3d at 1102 -03)). Thus, we agree with the district court that Speedwa y lacks standing to object to any of the

settlements on this basis. Alternatively, Speedway cites Bond , 564 U.S. 211, for th e proposition that “when a federal branch [of government] acts in excess of its delegated power[s],” then individuals who are “adversely affected . . . ha ve standing to object.” Spdwy. Aplt. Br. 52. Because Speedway alleges that (1) the dist rict court acted in excess of its delegated powers by approving the settlements, and (2) the settle ments adversely affect Speedway, it argues that it has standing to object to the settlements under Bond

. First, we question whethe r Speedway adequately preserved this argument for appeal; below, Speedway confined its analysis of Bond to a one-paragraph footnote. Cf.

United States v. Hardman , 297 F.3d 1116, 1131 (10th Cir. 2002) (“Arguments raised in a perfunctory manner, such as in a footnote, ar e waived.”). Perhaps that explains why the district court didn’t address it. And pe rhaps we need not address it either. See Singleton v.

underlying litigation.” App. vol. 20, 5510. And in any event, Speedway didn’t raise this argument in its opening brief. Accordingly, we d eem the argument waived and decline to consider it. See Reedy v. Werholtz , 660 F.3d 1270, 1274 (10th Cir. 2011) (“[T]he general rule in this ci rcuit is that a party waives i ssues and arguments raised for the first time in a reply brief.” (quoting M.D. Mark, Inc. v. Kerr–McGee Corp. , 565 F.3d 753, 768 n. 7 (10th Cir. 2009))).29 Wulff , 428 U.S. 106, 120 (1976) (“It is the genera l rule, of course, that a federal appellate

court does not consider an i ssue not passed upon below.”); Salt Lake Tribune Publ’g Co. v. Mgmt. Planning, Inc. , 454 F.3d 1128, 1142 (10th Cir. 2 006) (declining to address issue that district court didn’t rule on, even though parties fully briefed it below). In any event, even if we assume Speedw ay preserved this argument for appeal, it conflates Article III standing, which is at issue here, with prudential standing, which was

at issue in Bond

. See Sac & Fox Nation of Mo. v. Pierce , 213 F.3d 566, 573 (10th Cir. 2000) (distinguishing be tween Article III standing and pr udential standing and explaining that, under latter doctrine, “a plaintiff genera lly must assert its own rights, rather than those belonging to third parties”).

In Bond , there was no question that the defe ndant had Article III standing to challenge the criminal statute at issue; her conviction under that statute resulted in her incarceration, and her incarceration “cons titute[d] a concrete injury” that was “redressable by invalidation of the co nviction.” 564 U.S. at 217 (quoting Spencer v.

Kemna , 523 U.S. 1, 7 (1998)). Instead, the question in Bond was whether the defendant

had prudential standing to challenge the statute on certain grounds. Citing the Tenth Amendment, id. at 214, she attempted to challenge the statute on the basis that it “interfere[d] with the power s reserved to States,” id. at 216; see id. at 217, 220, 225. Citing “the prudential rule that a party ‘gen erally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties,’” Court-appointed amicus insisted this argument was one that the “States and

States alone” could make. Id. at 220 (quoting Warth v. Seldin , 422 U.S. 490, 499 (1975)).30 The Court disagreed, reasoning that “[t]he lim itations . . . federalism entails are not . . . a matter of rights belonging only to the States”; rather, “[f]ederalism also protects the liberty of all persons within a State.” Id. at 222. Accordingly, the Court held that there was “no basis in precedent or principle to deny [the defe ndant’s] standing to raise her

claims.” Id. at 226. But in doing so, the Court reiterated that “[a]n individual who challenges federal action on these grounds is, of course, subject to the Article III requirements.” Id. at 225. And it’s those very “Article III requirements” that pose a problem for Speedway here. Id. As discussed above, “[n]on-settli ng defendants generally have no [Article III] standing to complain about a settlement,” Weinman , 262 F.3d at 1102 (quoting Transamerican Ref. Corp ., 952 F.2d at 900), because th ey lack “a legally protected interest in the settlement” and therefore can’t satisfy Article III’s injury-in-fact requirement, id. And while there exists an exception to this general rule fo r parties that can demonstrate plain legal prejudice, see id. , Speedway fails to satisfy that exception for the reasons discussed

above. Finally, even assuming it lacks standi ng to challenge all of the settlement agreements as a non-settling defendant, Speed way asserts that it nevertheless has classmember standing to challenge eight of thos e settlement agreements : Valero, Chevron, CITGO, Sinclair, Shell, Co nocoPhillips, BP, and Exxon. See Tennille v. W. Union Co. , 785 F.3d 422, 429 (10th Cir. 2 015) (noting that objectors had standing because they were class members).31 The district court rejected Speedway’s cl ass-member argument be low. In doing so, it pointed out that the court’s Notice to Class Members ou tlined the following requirements for objecting to the settlements: “To object, you must send a letter via first class mail stating which Settlement(s) you obje ct to and why. Be sure to include your name, address, telephone number and signat ure. You must mail the objection to [the Clerk of the Court, class counsel and defe nse counsel] no later than March 23, 2015.” App. vol. 27, 7522 (quotin g App. vol. 27, 7547). On March 23, 2015, Speedway filed its initial objection. But according to the district court’s order, that objection “did not identify which se ttlement agreements [Speedway] objected to based on class membership .” App. vol. 27, 7523 (emphasis added). Instead, it merely asserted that (1) “[ s ] ome of the Objectors are members of the

settlement classes as defined in some of the . . . Settlements and have standing to object to

those settlements for that reason as well,” App. vol. 20, 5513 (em phases added), and (2) because “ some of objectors’ employees . . . bough t retail fuel while on business trips for which they were reimbursed by their respective companies . . . , they are members of

these settlement classes,” id. at 5514 (emphases added). And while Speedway appended a declaration to its objection in which a Mara thon employee attests to purchasing gas while on official business, the district court note d that the declaration doesn’t “identify from which retailers [the employee] purch ased fuel.” App. vol. 27, 7523. Based on these perceived deficiencies in Speedway’s objection, the district court ruled that Speedway “did not timely id entify who was objecting based on class membership and to which se ttlements they objected.” Id. Thus, it concluded, Speedway’s32 “objections based on class membership [wer e] untimely and not properly before the [c]ourt.” Id. at 7524. On appeal, Speedway challenges the district court’s ruling, arguing that “[c]lass membership need not be suppo rted with evidence at the time an objection is filed.” Spdwy. Aplt. Br. 47. But Speedway’s argumen t misconstrues the district court’s ruling. The district court didn’t find Speedway’s objec tion deficient because Speedway failed to

prove class membership, as Speedway alleges. Instead, the district court found Speedway’s objection deficient because Spee dway failed to “timely identify who was objecting based on class membership and to whic h settlements they objected.” App. vol. 27, 7523. In other words, the distri ct court didn’t require Speedway to prove membership in any particular class; it merely required Speedway to specifically allege (1) the class or classes of which it was a member, and (2) th e settlements it was objecting to on that basis. And it found that Speedway failed to timely do so. In short, the district court concluded th at Speedway’s “objections based on class membership” weren’t “properly before the [c]ourt” because Speedway failed to comply with the district court’s notice requirements. Id. at 7524. And Speedway makes no attempt in its opening brief to argue that such a decision was beyond the bounds of the

district court’s discretion. 5 See In re Deepwater Horizon , 739 F.3d 790, 808-09 (5th Cir. 2014) (concluding that “distric t court plainly acted within its discretion” in declining to

5 Speedway does attempt to address this issu e in its reply brief, arguing for the first time that it did, in fact, “[c]ompl[y] with” th e district court’s notice requirements. Spdwy. Rep. Br. 17. But arguments raised for the first time in a reply brief are waived. See Reedy , 660 F.3d at 1274.33 consider objections where objec tors failed to timely comply with requirements of court’s “Preliminary Approval Order”). Under these ci rcumstances, we won’t disturb the district court’s ruling that Speedway’s objec tions weren’t properly before it. See Reedy, 660 F.3d

at 1274 (declining to address propriety of distri ct court’s ruling beca use appellant failed to “challenge the court’s reasoning on th[at] point” (emphasis added)). Accordingly, we decline to consider Speedway’s objecti ons to the settlement agreements. That leaves Alkon. The plai ntiffs don’t dispute that Al kon is indeed a member of

10 of the settlement classes: Costco, BP, Chevron, Citgo, ConocoPhillips, ExxonMobil, Shell, Sinclair, Sunoco, and Valero. Accordin gly, Alkon has standing to challenge those 10 settlement agreements. See Tennille , 785 F.3d at 429 (noting that objectors had standing because they were class members).

But Alkon doesn’t assert it has standing to challenge th e remaining 19 settlement agreements, and has therefore waiv ed any argument that it does. See Colo. Outfitters Ass’n v. Hickenlooper , 823 F.3d 537, 544 (10th Cir. 2016 ). Accordingly, we confine our remaining analysis to Alkon’s challenges to the 10 settlement agreements listed above. 6 In doing so, we “review the [district] court’ s approval of the settleme nt agreement[s] for

an abuse of discretion.” Rutter & Wilbanks Corp . v. Shell Oil Co. , 314 F.3d 1180, 1186 (10th Cir. 2002) (quoting United States v. Hardage , 982 F.2d 1491, 1495 (10th Cir. 1993)). To the extent that several of Alkon’s arguments present constitutional questions,

6 In evaluating Alkon’s arguments, we consider those portions of Speedway’s opening brief that Alko n adopts by reference. See Fed. R. App. P. 28(i) (“In a case involving more than one appe llant or appellee, including c onsolidated cases, . . . any party may adopt by reference a part of anothe r’s brief.”).34 our review is de novo. See Citizens for Responsible Gov’ t State Political Action Comm. v.

Davidson , 236 F.3d 1174, 1199 (10th Cir. 2000). B. The district court’s approval of the fund settlements doesn’t violate the First Amendment. The fund settlements set aside money fo r state regulators to defray the costs associated with enacting and implementing ne w regulatory programs for conversion to ATC. Alkon argues this aspect of the ag reements requires absent class members to subsidize the plaintiffs’ lobbying efforts aime d at obtaining regulatory approval for ATC. And according to Alkon, this am ounts to the “compelled fundin g of speech” in violation of the First Amendment. Spdwy. Aplt. Br. 37; see Alk. Aplt. Br. 45. But as the plaintiffs point out, the Fi rst Amendment only limits state—as opposed to private—action. Dominion Video Satellite, Inc. v. Echostar Satellite L.L.C. , 430 F.3d 1269, 1276 (10th Cir. 2005). And the plaintiffs insist that neither the district court’s approval nor its potential enforcement of thes e private settlement agreements constitutes state action for purposes of the First Amendment. Cf. Davis v. Prudential Sec., Inc. , 59 F.3d 1186, 1192 (11th Cir. 1 995) (“[T]he mere confirmation of a private arbitration award by a district court is insufficient stat e action to trigger the application of the Due Process Clause.”). Citing Shelley v. Kraemer , 334 U.S. 1 (1948), Alkon disagrees. In Shelley , the

Court held that a state court’s enforcemen t of private covenants designed to prevent people of color from purchasing real estate constituted state action for purposes of the Equal Protection Clause. 33 4 U.S. at 18-20. Under Shelley , Alkon argues, “[t]he judicial35 imprimatur of the approval orders . . . demons trate[s]” that the settlement agreements at issue here “are more than merely pr ivate contracts.” Alk. Aplt. Br. 38. But as the plaintiffs note, courts have uniformly declined to extend Shelley beyond cases involving discrimination. See, e.g., Everett v. Paul Davis Restoration, Inc. , 771 F.3d 380, 386 n.1 (7th Cir. 2014) (“However, Shelley ’s holding has never been applied outside the context of race discrimination.”); Naoko Ohno v. Yuko Yasuma , 723 F.3d 984, 998 (9th Cir. 2013) (noting that “ Shelley ’s attribution of stat e action to judicial enforcement has generally been confined to the context of discrimination claims under the Equal Protection Clause”); Davis , 59 F.3d at 1191 (“The holding of Shelley , however, has not been extended beyond the c ontext of race discrimination.”); United Egg Producers v. Standard Brands, Inc. , 44 F.3d 940, 943 (11th Ci r. 1995) (“[T]he reach of Shelley remains undefined outside of the racial discrimination context.”). Alkon doesn’t suggest that the settlement agreemen ts implicate the Equal

Protection Clause. Nor does it cite any cases extending Shelley outside of that context or present a reasoned argument why we should do so here. 7 Accordingly, we conclude that the district court’s approval of the settlement agreements doesn’t constitute state action. And absent any state action, Alkon’s First Amendment argument fails. See Dominion Video Satellite, Inc. , 430 F.3d at 1276.

7 In its reply brief, Alkon argues, “[The p]laintiffs’ response that the settlements are purely private arrangeme nts devoid of any state action has no persuasive force as applied to the millions of absent class members compelled to donate funds to support a c ontroversial political cause.” Al k. Rep. Br. 25. But Alkon provides neither argument nor authority to s upport this assertion. Accordingly, we decline to consider it. Cf. Hardman , 297 F.3d at 1131 (“Ar guments raised in a perfunctory manner . . . are waived.”).36 C. The district court’s approval of the settlement agreements doesn’t violate Article III. Next, Alkon asserts that the settlemen t agreements violate Article III and separation of power principles for various reas ons. Before we address the merits of some of these arguments, we first explain why we de cline to address the merits of others. First, for the reasons discussed below, we decline to address Alkon’s assertion that

the district court lacked Article III author ity to approve the se ttlement agreements because (1) those settlement agreements don’t actually redress the plaintiffs’ alleged injuries; (2) whether the settl ement agreements will actually provide any redress for the plaintiffs’ alleged injuries is contingent upon the actions of third-party actors, e.g., state legislatures; and (3) the settlement agreements aim to change the law, rather than to redress an injury caused by a violation of existing law. We agree with Alkon that, to establish Article III standing, “a litigant must have suffered some actual injury that can be re dressed by a favorable judicial decision.” Iron Arrow Honor Soc’y v. Heckler , 464 U.S. 67, 70 (1983). The pr oblem is that Alkon makes no effort to explain how Article III’s redressability requirement operates in the context of a settlement agreement. Alkon appears to be suggesting that when the parties to a settlement agreement ultimately agree to a remedy that doesn’t actually and fully redress a plaintiff’s alleged injury, that factor so mehow operates to retr oactively dissolve the plaintiff’s Article III standing to bring—and thus a federal court’s jurisdiction to hear— that plaintiff’s claims in the first place. Bu t we know of no author ity that would support this argument. And Alkon cites none. Accordin gly, we find this argument inadequately37 briefed and decline to consider it. See Fed. R. App. P. 28(a)(8)(A) (requiring argument section of appellant’s brief to contain “contentions and the reasons for them, with

citations to the authorities . . . on which the appellant relies”); Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007 ) (“[W]e routinely have declined to consider arguments that are . . . inadequate ly presented[] in an ap pellant’s opening brief.”). Likewise, we decline to c onsider Alkon’s assertion that the conversion settlement agreements constitute advisory opinions and therefore run afoul of Article III. See FialkaFeldman v. Oakland Univ. Bd. of Trs. , 639 F.3d 711, 715 (6th Ci r. 2011) (“The ‘case or controversy’ requirement prohibits all advisory opinions . . . .”). Here, the Valero and Costco settlement agreements contain releas es enjoining class me mbers from suing based on “actions taken by [Valero and Costco] th at are authorized or required by” the agreements. Alk. Aplt. Br. 31. Alkon alleges that if the “plaintiffs tried to bring a lawsuit against Costco today contending that its gasoline sales practices in 2017 will violate consumer law, the complaint wo uld be dismissed as unripe.” Id. at 35. Yet “just because [the plaintiffs] changed the cover sheet to say ‘Proposed Settlement’ rather than ‘Complaint,’” Alkon laments, the parties were ab le to “induce[] the district court to issue an advisory opinion that no class member may proceed against Costco’s and Valero’s future practices.” Id. But again, Alkon doesn’t cite any authority suggesting that a district court’s approval of a private settlement agr eement containing a future-conduct release constitutes an advisory opinion. And again, its failure to do so waives this argument. Finally, we decline to consider Alkon’s re lated argument that the future-conduct releases in the conversion-settlement agreemen ts purport to release claims that aren’t38 “based on the identical factua l predicate as that underlying the claims in the settled class

action.” TBK Partners, Ltd. v. W. Union Corp. , 675 F.2d 456, 460 (2d Cir. 1982). Here, the underlying claims against Costco and Va lero are based on Costco and Valero’s failure to use ATC. Yet the settlemen t agreements purport to rel ease future claims against

Costco and Valero for using ATC, as the settlements re quire them to do. And Alkon makes a convincing argument that using ATC an d not using ATC aren’t identical factual predicates; rather, they’re opposite ones. But despite its obligation to do so, Alkon doesn’t provide a record citation establishing that it raised this iden tical-factual-predicate argument below. See 10th Cir. R. 28.2(C)(2); Harolds Stores, Inc , 82 F.3d at 1541 n.3. And our independent review of the record suggests it didn’t. Moreover, Alko n fails to argue for plain error on appeal. And that “surely marks the end of th e road for” this argument on appeal. Richison , 634

F.3d at 1131. Turning next to the arguments that Alkon has adequately preserved and briefed, it first argues that the district court abused its discretion in approving both the fund and conversion settlement agreemen ts because (1) regulators and policymakers have long debated requiring or authoriz ing ATC at retail but have ultimately “chosen not to,” Spdwy. Aplt. Br. 28; (2) selling gas by the gallon is lawful; (3) deciding whether to use ATC is a policy decision best left to the le gislature; (4) the district court made an impermissible policy judgment about ATC when it found that class members would

derive some benefit from the settlements to th e extent that the settlements will increase the odds of conversion to ATC; (5) what the plaintiffs actually seek here is a change in39 the existing law, which is a political remedy, not a judicial one; and (6) the district court lacked authority to pr ovide that political reme dy under Article III. But as the district court reasoned, the se ttlements don’t actually change the law. True, the fund settlement agreements remove one disincentive to implementing ATC by offering funds to reimburse state regulators fo r costs incurred as a result of conversion.

But the district court didn’t orde r states to require, or even allow, conversion to ATC; that

decision remains in the hands of state lawmaker s—a fact that Alkon concedes (and in fact relies on) in arguing that the plaintiffs can’t satisfy Articl e III’s redressability requirement. Thus, contrary to Alkon’s argu ment, the district court didn’t usurp the legislature’s role by “altering the method of sale cooperatively established by Congress and the States,” Spdwy. Aplt. Br. at 30; inst ead, policy decisions about whether to allow or require ATC remain with state policy makers. Second, Alkon says a court can’t “a pprove a class settlement based on an

unanchored belief that the settlement wo uld further the public interest.” Id. at 31. In support, it cites Amchem Prods., Inc. v. Windsor , 521 U.S. 591 (1997). But even assuming that Amchem supports this general assertion, th e district court in this case didn’t approve the settlements based on “an unanchored belief that th e settlement would further the public interest,” Spdwy. Aplt. Br. 31; it made a finding that the settlements would

benefit the class members. Third, Alkon argues that in approving th e settlements, the district court violated the Rules Enabling Act. See 28 U.S.C. § 2072(b) (explaining that Federal Rules “shall not abridge, enlarge or modify any substa ntive right”). In support, Alkon cites Authors Guild40 v. Google Inc. , 770 F. Supp. 2d 666 (S.D .N.Y. 2011). There, the dist rict court ruled that a settlement agreement ran afoul of the Rules Enabling Act because it “attempt[ed] to use

the class action mechanism to implement forward-looking business arrangements that [went] far beyond the dispute before the [c]ourt in th[at par ticular] litigation.” Id. at 677. But as the plaintiffs point out, at leas t two of our sister circuits have since concluded that the Rules Enabling Act ha s no application in this context. See Marshall v. Nat’l Football League , 787 F.3d 502, 511 n. 4 (8th Cir. 2015) (concluding that district court’s approval of settlement agreement “i s not a ‘substantive adjudication of the underlying causes of action,’ and therefore . . . does not implicate the Rules Enabling Act”) (quoting In re Baby Prods. Antitrust Litig. , 708 F.3d 163, 173 n.8 (3d Cir. 2013)),

cert. denied , 136 S. Ct. 1166 (2016); Sullivan v. DB Invs., Inc., 667 F.3d 273, 313 (3d Cir. 2011) (“In the absence of a finding that plaintiffs are actually entitled to relief under substantive state law, we reite rate that a court does not ‘abridge, enlarge, or modify any substantive right’ by approving a voluntarily -entered class set tlement agreement.” (quoting § 2072(b))); cf. Whitlock v. FSL Mgmt., LLC , 843 F.3d 1084, 1092-93 (6th Cir. 2016). We find these authorities persuasive. A ccordingly, we reject this argument. D. Attorney’s fees don’t render the district court’s approval of the settlement agreements an abuse of discretion. A district court may approve a settleme nt agreement “after a hearing and on finding that it is fair, reasona ble, and adequate.” Fed. R. Civ. P. 23(e)(2). We review a district court’s approval of a settlement agreement under Rule 23(e )(2) for an abuse of41 discretion. But we review any factual findings for clear error. Rutter & Wilbanks Corp. v.

Shell Oil Co. , 314 F.3d 1180, 1186- 87 (10th Cir. 2002).

This court has “noted four factors to be considered in assessing whether a proposed settlement is fair, reasonable and adequate,” id. at 1188: (1) whether the proposed settlement wa s fairly and honestly 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 immedi ate recovery outweighs the mere possibility of future relief after prot racted and expensive litigation; and (4) the judgment of the parties that th e settlement is fair and reasonable.

Id. (quoting Gottlieb v. Wiles , 11 F.3d 1004, 1014 (10th Cir. 1993), abrogated on other grounds by Devlin v. Scardelletti , 536 U.S. 1 (2002)). Here, Alkon argues that an additional fact or rendered the district court’s approval of the settlement agreements an abuse of discretion. Alkon points out that the settlement agreements contemplate awarding millions of do llars in attorney’s fees and argues that this aspect of the settleme nt agreements makes class counsel—rather than class members—the primary beneficiaries of those agreements. 8 According to Alkon, Rule 23(e) simply doesn’t permit such a result. 9

8 Alkon doesn’t challenge the district cour t’s ultimate award of attorney’s fees. Instead, it argues only that the amount of attorney’s fees th at the settlement agreements permitted class c ounsel to request is so high as to render the district court’s approval of those agreemen ts an abuse of discretion.

9 Alkon asserts that any refusal to cons ider this aspect of the settlement agreements in determining whether the di strict court abused its discretion would create a circuit split. But for purposes of this case, we need not affirmatively resolve42 We agree with Alkon that class action se ttlements pose obvious conflict-of-interest problems. “The defendant cares only about the size of the settlement, not how it is divided between attorneys’ fees and compensation for th e class. From the selfish standpoint of class counsel and the defendant, therefore, the optimal settlement is one modest in overall amount but heavily tilted toward attorneys’ fees.” Eubank v. Pella Corp. , 753 F.3d 718, 720 (7th Ci r. 2014). Thus, class counsel may be tempted “to sell out the class by agreeing with the defendant to recommend that the judge approve a settlement involving a meager recovery for the class but ge nerous compensation for the lawyers.” Id. Alkon suggests that’s what happened here . In support, it advances three general arguments: (1) the agreements don’t benefit th e class; (2) even a ssuming the agreements benefit the class, they prov ide the same benefit to the general public; and (3) even assuming the agreements provide unique benefits to the class, the primary beneficiaries of the agreements are class counsel, who stand to receive millions of dollars in attorney’s

fees. In challenging the district court’s c onclusion that the sett lement agreements benefit the class, Alkon first argues that the di strict court’s conclusion that the settlements

benefit the class members is based on clea rly erroneous factual findings. Specifically, Alkon asserts the district court clearly erred in finding that “reta ilers [who convert to

this issue; even assuming that we must incorporate this fa ctor into our analysis, we conclude that under the facts of this case, the district court didn’ t abuse its discretion in approving the settlement agreements.43 ATC] would not raise prices to reflect increases in marginal costs because of competition.” Alk. Aplt. Br. 24.

We’re not convinced that the district cour t ever made such an unequivocal finding. To the contrary, the court exp licitly recognized the possibility that retailers might pass the additional expenses associated with conversion along to th eir customers, and concluded not that competition would necessarily preven t retailers from raising prices altogether, but simply that competition woul d impact whether retailers raised their prices “and if so by how much.” App. vol. 27, 7513. Moreover, in approving the plaintiffs’ se ttlement agreements with BP, Chevron, Citgo, ConocoPhillips, ExxonMob il, Shell, Sinclair, Sunoco , and Valero, the district court incorporated by referen ce its earlier analysis in appr oving the Costco Agreement. And there, the district court again (1) explicitly acknowledged the possibility that retailers might raise prices in response to conversion; (2) concluded it was impossible to determine with any certainty the prices that retailers might charge for gas in the future; and (3) reasoned that, even assuming the price of fuel might rise slightly as a result of conversion, class members woul d still benefit simply from “ knowing that they can get accuracy and consistency of fu el measurement for their fuel dollar, regardless of fuel temperature at the time of pumping.” R. vol. 11, 3146. In other words, the district court didn’t necessarily find that retailers wouldn’t raise fuel prices; it concluded that even assuming fuel prices might rise slightly, conversion to ATC would still benefit class members. Thus, we conclude that the district court didn’t make a clearly erroneous fact finding, let alone rely on that findi ng to the objectors’ detriment.44 Next, in a related argument, Alkon assert s the district court “independently erred in refusing to consider” (1) the report of its expert w itness, David Henderson; and (2) evidence supporting Alkon’s cross-subsid ization theory. Alk. Aplt. Br. 25. That theory posits that “any temp erature differentials in volum etric gasoline sales simply mean[] that customers purchasing at above-ave rage temperatures [are] cross-subsidizing customers purchasing at below-average temper atures without any additional profit to the retailers,” and that while c onverting ATC will “end the cro ss-subsidization,” doing so will only benefit the former at the expense of the latter, “without an y net benefit to the

class as a whole.” Id. at 10-11. But Alkon fails to provide a citation to th e record demonstrating that the district court “refus[ed] to consider” either the Hend erson report or Alkon’s cross-subsidization theory. Id. at 25. To the contrary, the distri ct court explicitly acknowledged the Henderson report in approving the Costco se ttlement and then explained why it found it unnecessary to resolve whet her, as the Henderson report suggests, ATC conversion will increase consumer fuel costs. And in approv ing the remaining settlement agreements, the district court incorporated this analysis by reference. The fact that the district court ultimately found the Henderson report irrelevant doesn’t establish that the district court “refus[ed] to consider” that report, as Alkon alleges. Id

. Similarly, while the dist rict court didn’t explicitly address Alkon’s crosssubsidization theory, Alkon doesn’t provide a record citation that suggests the district court “refus[ed] to consider” it. Id. And in any event, Costco’s cross-subsidization theory simply posits that the class as a whole won’t reap any economic benefit from ATC45 conversion. Because the district court took that possibility into account and explained why it declined to find the potential lack of any econom ic benefit dispositive in determining whether the settlement agreements benefited the class, any error in the

district court’s failure to consider Alkon’ s cross-subsidization theory was harmless. Next, even assuming the settlement agreem ents benefit the class, Alkon argues those benefits aren’t unique to the class members. After all, it points out, non-members will receive the same supposed benefits from ATC conversion. And unlike class members, non-members won’t have to releas e their claims in order to obtain those benefits. Thus, Alkon asserts, the agreemen ts actually leave cl ass members worse off

than non-members. We reject this argument for two reasons. Fi rst, the district court found that the plaintiffs’ “overall prospects of ultimately prevailing in litiga tion” were slim. App. vol. 27, 7502. In other words, class members di dn’t give up much by releasing their claims. So even assuming that class members are now worse off than non-class members, any difference is marginal. Second, and more im portantly, Alkon cites no authority for the proposition that a district court abuses its discretion in approving a settlement agreement unless the agreement benefits class members more than it benefits non-members. Here, the class members gave up their claims—claims the district court said were unlikely to succeed—in exchange for an informational benefit. While non-class members might receive the same benefit, this isn’t a zero-s um game where that f act somehow detracts

from the informational benefit th at class members might receive. Likewise, the fact that class members may be marginally worse off than non-class members doesn’t change the46 fact that class members will still be better o ff than they were befo re the settlement. Under these circumstances, the district c ourt didn’t abuse its discretion. Finally, even assuming that class members will receive some marginal

informational benefit from the settlement agreement, Al kon argues that class counsel remain the primary beneficiaries of the settle ment agreements. And according to Alkon, that makes the settlement ag reements unreasonable. Under the Costco Agreement, Costco agreed to pay atto rney’s fees in whatever

amount the court awarded. Under the Vale ro Agreement, Valero agreed to pay $4,000,000 in attorney’s fees . Finally, under the remaining eight settlement agreements that Alkon has standing to challenge, the defe ndants agreed not to op pose attorney’s fees and litigation costs of up to 30% of the settle ment amounts. The following list illustrates that percentage for each of the rema ining relevant settlement agreements: BP: $ 1,500,000 CITGO: $ 270,000 ConocoPhillips: $ 1,500,000 ExxonMobil: $ 1,500,000 Shell: $ 1,500,000 Sinclair: $ 240,000 Chevron: $ 637,500 Sunoco: $ 18,300 In total, that means the defendants agreed not to object to a ttorney’s fees up to $11,165,800, plus any amount the court awarded for th e Costco Agreement. Alkon argues that this amount is “grossly disproportionate” to any benefit the class members might receive from the settlement agre ements. Alk. Aplt. B r. 27. But in making this argument, Alkon puts the attorney’s fees on one side of the ledger and the potential47 economic benefits to the class on the other—benef its that Alkon says will amount to, at most, one cent per consumer per year. While this comparison makes for compelling imager y, it also mischaracterizes the

district court’s decision. The district cour t didn’t base its approval of the settlement agreements on a finding that th ey might provide class members with an economic benefit. In fact, it readily acknowledged that (1) it’s impossible to accurately predict ATC’s potential impact on future fuel prices and (2) there exists a possibility that consumers will actually pay slightly more for gas under ATC. Instead, the district court found that the settlement agreements provide class members with an info rmational benefit: “accuracy and consistency of fuel measurement fo r their fuel dollar.” R. vol. 27, 7500; see also id. at 7502. To the extent that Alkon attempts to reduce the question before us to one of simple arithmetic, its arguments are unpersuasive.

So too is its citation to In re Dry Max Pampers Litigation , 724 F.3d 713 (6th Cir. 2013). There, a divided panel of the Sixth Circ uit concluded that the district court abused its discretion in approving a settlement agreement under whic h the class members received meaningless injunctive relief, while class counsel raked in $2.73 million—much less than defendants agreed to pay in attorney’s fees here. Id. at 721. But class counsel in In re Dry Max Pampers Litigation apparently also did much less work: counsel didn’t “take a single deposition, serve a single reques t for written discovery, or even file a response to [defendant’s] motion to dismiss.” Id. at 718. Alkon doesn’t suggest that’s the case here, and a mere glance at the district court’s docket—which contains almost 5,000 entries spanning more than nine years—confirms otherwise.48 More importantly, the district court’s or der approving the settlement agreement in In re Dry Max Pampers Litigation failed to address any of the objector’s objections. Id. at 717. When a district court “is required to ma ke a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the

factors relevant to that exercise.” New England Health Care Emps. Pension Fund v. Woodruff , 512 F.3d 1283, 1290 ( 10th Cir. 2008) (quoting United States v. Cunningham , 429 F.3d 673, 679 (7th Cir. 2005)). Wh ile that was impossible to do in In re Dry Max Pampers Litigation , it’s not impossible to do here; the district court provided thorough, well-reasoned responses to each objection—in cluding, critically, Alkon’s arguments that the settlement agreements (1) don’t benef it class members; and (2) allow excessive attorney’s fees. Because we are therefore conf ident that the district court in this case “considered the factors relevant” to its exercise of discretion, Woodruff , 512 F.3d at 1290 (quoting Cunningham , 429 F.3d at 679), we owe its exer cise of that discretion great deference, see Jones v. Nuclear Pharmacy, Inc. , 741 F.2d 322, 32 4 (10th Cir. 1984) (“The authority to approve a settlement of a class or derivative action is committed to the sound discretion of the trial court.”). We ther efore decline to rely on the Sixth Circuit’s opinion in In re Dry Max Pampers Litigation

. We likewise decline to rely on Pearson v. NBTY, Inc. , 772 F.3d 778 (7th Cir. 2014), which Alkon also cites. There, the Se venth Circuit held that the district court abused its discretion in approving a settlemen t agreement that set aside approximately $2 million for class counsel fees and attorney expenses and only $8 65,284 for the 30,24549 class members, concluding that the settlemen t amounted to “a selfish deal between class

counsel and the defendant” th at “disserve[d] the class.” 772 F.3d at 780-81, 787. In reaching that conclusion, the Se venth Circuit suggested that the “presumption should . . . be that attorneys’ fees awarded to class c ounsel should not exceed a third or at most a half of the total amount of money going to class members and their counsel.” Id. at 782. We disagree. As the Sixth Circuit has e xplained, “[c]onsumer class actions . . . have value to society more br oadly, both as deterrents to un lawful behavior—particularly when the individual injuries are too small to justify the time and expense of litigation— and as private law enforcement regime s that free public sector resources.” Gascho v. Glob. Fitness Holdings, LLC , 822 F.3d 269, 2 87 (6th Cir. 2016), cert. denied sub nom.

Blackman v. Gascho , No. 16-364, 2017 WL 6 70215 (Feb. 21, 2017), and sub nom. Zik v.

Gascho , No. 16-383, 2017 WL 67 0216 (Feb. 21, 2017). “If we are to encourage these positive societal effects, class counsel must be adequately compensated—even when significant compensation to cl ass members is out of reach (such as when contact information is unavailable, or when individual claims are very small).” Id. And “[a]n inflexible, categorical rule,” such as the one the Seventh Circuit espoused in Pearson , “neglects these additional considerations.” Id. In short, Alkon doesn’t cite a single cas e in which this court has disturbed a district court’s order approvin g a settlement agreement. And ou r research yields only one: Woodruff , 512 F.3d 1283. But in Woodruff , as in Pearson , the district court failed to provide “any independent reasoni ng or analysis” to support its decision to approve the settlement agreement. Id. at 1290. That’s not the case here. And while we may not agree50 with the decision the district court ultimatel y reached, we cannot say that decision is an

abuse of discretion. E. The district court didn’t abuse its discretion in certifying the class. Finally, Alkon asserts that because the district court found it “infeasible to distribute damages to class members if the li tigation were successful,” the district court erred in finding certification appropriate under Fed. R. Civ. P. 23(b)(3). Alk. Aplt. Br. 43;

see Fed. R. Civ. P. 23(b)(3) (requiring, in relevant part, finding that class action is “superior to other available methods for fairly and efficiently adjudicating the controversy”). The district court rejected this argument, concluding that (1) the settlements “provide value and benefit to class members”; and (2) Alkon failed to

establish that class members could feasibly pursue individua l claims given the cost of maintaining separate acti ons. App. vol. 27, 7508. “The decision to grant or deny certificati on of a class belongs within the discretion

of the trial court. We will not interfere w ith that discretion un less it is abused.” J.B. ex rel. Hart v. Valdez , 186 F.3d 1280, 1287 (10th Cir. 1999) (quoting Reed v. Bowen , 849 F.2d 1307, 1309 (10th Cir. 1988)). Here, Alkon appears to suggest that a district court necessarily abuses its discretion by certifying a class when a cla ss action “can provide no compensatory value to class members.” Alk. Aplt. Br. 43-44. But no ne of the cases that Alkon cites establish such a bright line rule. At best, one of them establishes that a district court may deny certification on similar ground s—not that a district court must to do. See Quinn v.

Nationwide Ins. Co. , 281 F. App’x 771, 778 (10th Ci r. 2008) (unpublished) (concluding51 that district court didn’t a buse its discretion in refusing to certify class under Rule 23(b)(3) where “class action proposed by plai ntiffs would be difficult to manage and would not be more efficient than having the claims of individual class members resolved independently”). The other cases Alkon cite s are distinguishable on factual and legal grounds. See In re Aqua Dots Prod. Liab. Litig. , 654 F.3d 748, 752 (7th Cir. 2011) (acknowledging that district c ourt erred in “departing from the text of Rule 23(b)(3)” in refusing to certify class, but nevertheless affi rming district court’s ultimate decision not to certify class under Rule 23(a)(4)); In re Hotel Tel. Charges , 500 F.2d 86, 89, 90-91 (9th Cir. 1974) (concluding that class acti on wasn’t superior method of adjudication under Rule 23(b)(3) where any monetary be nefit to class members would have been “entirely consumed by the costs of notice alone,” but never addressing whether nonmonetary benefits to class member s might satisfy Rule 23(b)(3)). Here, the district court found that “in light of the limited size of any potential financial recovery for any particular class member and the possibility of inconsistent results, a class action [was] a fa r superior method of resolv ing the claims compared to individual suits.” App. vol. 27, 7498-99. An d again, even assuming we might disagree with the district court on this point, Alkon fails to establish that the district court’s

decision is so unreasonable as to constitute an abuse of discretion. See Queen v. TA Operating, LLC , 734 F.3d 1081, 1086 (10th Cir. 2013) (explaining that district court abuses its discretion only if “it makes a clea r error of judgment, exceeds the bounds of permissible choice, or when its decision is arbitr ary, capricious or whimsical, or results in52 a manifestly unreasonable judgment” (quoting Eastman v. Union Pac. R. Co. , 493 F.3d 1151, 1156 (10th Cir. 2007))).

C ONCLUSION The settlement agreements at issue here are unusua l. But the decision to approve them rests with the sound discretion of the distri ct court. Under the unique facts of this case, we can’t say the district court abused that discretion. Accordingly,

we affirm the district court’ s approval of the 10 settlement agreements that Alkon has demonstrated standing to challenge. We like wise affirm the district court’s order refusing to allow Costco to adopt the terms of the Stipulation under Section 4.7 of the Costco Agreement.