PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JAMES P. TENNILLE; ROBERT SMET; ADELAIDA DELEON; YAMILET RODRIGUEZ, individually and on behalf of all others similarly situated, Plaintiffs - Appellees,

v. THE WESTERN UNION COMPANY; WESTERN UNION FINANCIAL SERVICES, INC., Defendants - Appellants. No. 14-1432

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:09-CV-00938-JLK-KMT)

________________ _________________ Charles G. Cole, Steptoe & Johnson, Washin gton, D.C. (Thomas M. Barba, Steptoe & Johnson, Washington, D.C.; Jason A. Yura sek, Perkins Coie LLP, San Francisco, California; and Jess A. Dance, Perkins Coie LLP, Denver, Colora do, with him on the briefs), for Defendants-Appellants. Richard J. Burke, Quantum Legal LLC, St. Louis, Missouri (Jeffrey A. Leon, Jamie E. Weiss, Grant Y. Lee, Quantum Legal LLC, Hi ghland Park, Illinois; Diogenes P. Kekatos and Stephen A. Weiss, Seeger Weiss LLP, Ne w York, New York; Jonathan Shub, Seeger Weiss LLP, Philadelphia, Pennsylvania; Seth A. Katz, Burg Simpso n Eldredge Hersh & Jardine, PC, Englewood, Colorado; Jim S. Calton, Jr., Calton Legal Services, SP, Eufaula, Alabama; James E. Cecchi, Carella , Byrne, Cecchi, Olstein, Brody & Agnello, P.C., Roseland, New Jersey; Mitchell Baker, De nver, Colorado, with him on the briefs), for Plaintiffs-Appellees. FILED United States Court of Appeals Tenth Circuit 

### November 17, 2015
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Before HOLMES , McHUGH , and MORITZ , Circuit Judges.

________________ _________________ McHUGH , Circuit Judge.

________________ _________________

I. INTRODUCTION Western Union Company and its subs idiary, Western Union Financial Services, Inc. (collectively, Western Union) , appeal the district court’s award of $40 million in attorney fees to class counsel after the settlem ent of a putative class action against Western Union. Because Western Union lacks standing to challenge the attorney-fee award, we do not have subject -matter jurisdiction an d must dismiss the appeal.

II. BACKGROUND A. Factual History Western Union facilitates money transfers between customers in geographically distant locati ons. A small number of thes e transfers fail, usually because the sender provides invalid contact information for the r ecipient or because the recipient does not redeem the money. At any given time, Western Union holds approximately $100 million in unredeemed customer pro ceeds. Although the money remains the property of the sender, We stern Union retains the funds until the customer requests a refund or until the money is subject to escheat under the relevant State’s laws. During the time these amounts remain in Western Union’s possession,3 Western Union collects interest and charge s a small monthly admi nistrative fee, and it retains both of these amounts after the pr incipal is refunded or escheated. Western Union’s practice was to notif y customers that their tran sfer had failed and that Western Union had possession of the unredeem ed sums shortly be fore the money was to escheat to the States, of ten three years after the failu re of the original money transfer. Historically, approximately 15% of Western Union cust omers responded to these notices and obtained a refund.
B. Procedural History Plaintiffs filed this puta tive class action to challenge Western Union’s practice of failing to timely notify customers of failed money transfers and of holding customer money for years wh ile accruing interest and ch arging administrative fees. While litigation over procedural hurdles to class certificat ion was ongoing, the parties agreed to a settlement of th e class claims against Western Union. Under the settlement ag reement, Western Union agreed to place all unredeemed customer money currently in its possession, less administrative fees, into a class settlement fund (the CSF) from wh ich class members whose money had not yet escheated to the States could receive a refund of thei r remaining principal. The settlement agreement further provides fo r all customers whose money was held by Western Union during the relevant time to receive a payment roughly equal to the interest that accrued on their money while held by Western Union. These interest payments are to be paid from the CSF or a separate fund es tablished by Western Union depending on whether the particular claimant’s prin cipal had escheated at the4 time of settlement. The settlement agreem ent also establishe s other forms of nonmonetary relief for class me mbers, including a requirement that Western Union alter its business practices to no tify customers of failed tran sfers within 60–90 days. The district court approved the settlement, and a panel of this court a ffirmed the district court’s decision. Tennille v. Western Union Co. , 785 F.3d 422 (10th Cir. 2015). Counsel for the plaintiff class (Class Counsel) then sought an award of attorney fees, requesting 30% of the $135 mi llion to be deposited in the CSF as the basis for the award. Western Union objected, and the district court referred the matter to a magistrate judge. The magistrate judge determined Western Union had no right to object to the attorney-fee award but neve rtheless considered many of the issues raised by Western Union in independently assessing the reasonableness of the attorney-fee award. 1 Notably, the magistrate judge agreed with Western Union’s central contention—that the $135 million in the CSF did not represent the benefit Class Counsel had obtained for the class members because the CSF consisted of funds that Western Union always acknowle dged belonged to the individual class members. The magistrate judge calculate d the actual benef it to the class as

1 The magistrate judge concluded West ern Union’s objection was barred by Rule 23(h) of the Federal Rules of Civ il Procedure, which provides, “A class member, or a party from whom payment is sought, may object to the motion [for attorney fees].” The magistra te judge ruled Western Unio n is not “a party from whom payment is sought” because Western Union’s obligation to pay into the CSF “is not in any way contingent on the amount of attorney’s fees awarded.” Because we conclude Western Union lacks standing under Article III to challenge the attorney fee award, we need not decide whether Wester n Union’s challenge w ould also be barred by Rule 23(h).5 approximately $65 million in interest payments and nonmonetary relief and recommended an award of 35% of this “common fund.” The parties objected to the magistrate judge’s recommenda tion. Although the district court also had do ubts about Western Union’s st anding to object to the attorney-fee award, it permitted Western Union to participate in the objection hearing. The district court u ltimately concluded the best m easure of the benefit to the class was the value of the C SF. The district court reas oned that the placement of customer money in the CSF “puts the bird in the hand rather than in the bush” because, absent the creation of the CSF an d the refund mechanis m of the settlement, “return of these funds is highly speculative,” involving a “detailed requirement for refund,” “anticipated delays in recei ving payment,” and “a dditional, probably preclusive, cost and effort.” The distri ct court therefore awarded Class Counsel attorney fees of just over $40 million, a pproximately 30% of th e $135 million value
of the CSF. Wester n Union appeals.

III. DISCUSSION Class Counsel argues we cannot reach th e merits of this appeal because Western Union lacks standing to challenge the attorney-f ee award. A challenge to standing presents the “threshold jurisdic tional question of whether a court may consider the merits of a dispute.” S. Utah Wilderness All. v. Palma , 707 F.3d 1143, 1152 (10th Cir. 2013). If we c onclude a party lacks standing to appeal from a district court’s order, we lack jurisdiction over the appeal and must dismiss it. See Hollingsworth v. Perry , 133 S. Ct. 2652, 2668 (2013).6 “We review the question of standing de novo.” Roe No. 2 v. Ogden , 253 F.3d 1225, 1228 (10th Ci r. 2001). Standing is a “core component” of the case-orcontroversy requirement of Article III necessary to in voke federal jurisdiction. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61 (1992). “The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in cour ts of first instance.” Arizonans for Official Engl. v. Arizona , 520 U.S. 43, 64 (1997). To satisfy Article III’s standing requirement, the aggrieved party must make three showings: (1) it has suffered an “injury in fact” th at is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely sp eculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. La idlaw Envtl. Serv s. (TOC), Inc. , 528 U.S. 167, 180–81 (2000). The party invoking th is court’s jurisdiction bear s the burden of establishing these elements. Lujan , 504 U.S. at 561. Generally, a settling defendant in a clas s action has no interest in the amount of attorney fees awarded when those fees ar e to be paid from the class recovery rather than the defendant’s coffers. See Boeing Co. v. Van Gemert , 444 U.S. 472, 481 n.7 (1980) (recognizing the defendant “had no cognizable interest in further litigation between the class and its lawyers over the amount of the fees ultimately awarded from money belonging to the class”); Copeland v. Marshall , 641 F.2d 880, 905 n.57 (D.C. Cir. 1980) (“In ‘common fund’ cases , the losing party no longer continues to have an interest in the fund; the cont est becomes one betw een the successful7 plaintiffs and their attorneys over division of the bounty.”); cf. Uselton v. Commercial Lovelace Motor Freight, Inc. , 9 F.3d 849, 855 (10th Cir. 1993) (concluding where “the fee awarded to objecting counsel came out of the common fund remaining after payment of class counsel’s fee,” only “the plaintiff class . . . could be considered aggrieved by that aw ard”). Nevertheless, Western Union argues it has standing to challenge th e attorney-fee award in this case becau se it claims it will be injured by a diminution of the CSF if Class Counsel is awarded an excessive attorney-fee award. Western Union’s argument is based on what it terms a “reversionary interest” in the CSF. Per the terms of the settlement agreement, Western Union will deposit approximately $135 million in unclaimed money belonging to its customers into the CSF. Those funds will be used to pay clai ms of class members whose funds have not yet escheated to the States , settlement administration f ees, incentive payments to class representatives, and a ttorney fees. Any money rema ining in the CSF will then be placed in a cy pres fund 2 under the district court’s cont rol, and the district court will release that money in pro rata shares to individual States upon receipt of a release of Western Union’s liability under th at State’s unclaimed-property laws. If any State declines to releas e Western Union or asserts a claim against Western Union

2 “The cy pres doctrine allows a court to dist ribute unclaimed or nondistributable portions of a cl ass action settlement fund to the ‘next best’ class of beneficiaries.” Nachshin v. AOL, LLC , 663 F.3d 1034, 1036 (9th Cir. 2011). The district court appears to have concluded th e States are the “next best” beneficiary of the class settlement fund b ecause any unclaimed money w ould have escheated to the States in the absence of th e settlement agreement.8 under the State’s unclaimed-p roperty laws, that State’s pro rata share will be deposited into yet a third fund, from wh ich Western Union can seek payment “to satisfy any claims or judgment s, or any costs or fees as sociated with any claim or judgment against Western Union,” with the district court’s approval. Western Union argues its interest in this third “indemnity” fund—and the potential effect of the attorney-fee award on the size of that fund—establishes its standing to challenge an award of attorney fees paid from the CSF. We disagree. Rather, we conclude any potential injury to Western Union is too attenuated from the award of attorney fees to Class Counsel to support Western Union’s standing. A. Injury In Fact “To qualify as a party with standing to litigate, a person must show, first and foremost, an invasion of a legally prot ected interest that is concrete and particularized and actual or imminent.” Arizonans for Official English , 520 U.S. at 64 (internal quotation marks omitte d). Where an injury is thre atened rather than actual, “[a]llegations of possible future injury are not sufficient” to establish standing. Clapper v. Amnesty Int’l USA , 133 S. Ct. 1138, 1147 (2013) . But “[a]n allegation of future injury may suffice if the threatened injury is certainly impendi ng, or there is a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus , 134 S. Ct. 2334, 2341 (2014) (inter nal quotation marks omitted) . Western Union contends it will suffer an injury from the attorney-fee aw ard “because the aw ard will deplete the funds available to indemnify Western Uni on against enforcement actions brought by unhappy states.” In support of its claim of injury , Western Union has identified9 record evidence tending to demonstrate that several States do not intend to accept payment from the cy pres fund and will in stead pursue enforcement actions against Western Union. Western Union argues this “credible threat of enforcement” is adequate to demonstrate a “substantia l risk that the harm will occur.” Cf. Susan B. Anthony List , 134 S. Ct. at 2341, 2342 (“When an i ndividual is subject to such a threat, an actual arrest , prosecution, or other enforceme nt action is not a prerequisite to challenging the law.”). Western Union’s Interest in the Funds 1. We first consider whether We stern Union has a legally pr otected interest in the CSF or the separate indemnity fund that wi ll be injured if an excessive attorney-fee award is paid from the CSF. Western Union has never disputed that the unclaimed transfer money it will deposit into the CSF belongs to the class members alone. As Western Union explains in its opening brief on appeal, class members who file claims “are merely getting their own, undisputed funds returned to them.” The CSF is thus composed entirely of custom er funds to which Western Union has disclaimed any present interest. And, in a ny event, the district court’ s approval of the settlement agreement “stripped [Western Union] of any present interest in the fund.” See Boeing , 444 U.S. at 481 n.7. Instead “[t]he me mbers of the class, whether or not they assert their rights, are at le ast the equitable owners of their respective shares in the recovery.” Id. at 481–82. Thus, Western Union has no interest in the CSF itself that would be invaded by dimi nution of that fund.10 What Western Union terms it s “reversionary” interest in the CSF is, in fact, an interest in reimbursement or indemnificat ion payments from a se parate fund that is created and funded only after all claims and fees are paid from the CSF. The settlement agreement provides “if there are remaining moni es in the Class Settlement Fund after payment of all valid claims, administration fees, Class Representative incentive awards, and attorneys’ fees and e xpenses, then the Parties agree that any remaining monies and accumulated interest will be put into a cy pres fund pursuant to the Court’s Order.” Per the district court’s order, the money in the cy pres fund will be first offered to the Stat es and, if refused, will be placed in the separate “indemnity” fund from which Western Union can seek reimbursement for costs and judgments incurred in future litigation by the objecting States. Thus, by the terms of the settlement agreement, West ern Union’s interest is in payments from this separate indemnity fund, not from the CSF, and no t from the intervenin g cy pres fund. Importantly, this separate indemnity f und is created only after class claims, attorney fees, and other cost s of the settlement have been paid from the CSF, a new cy pres fund has been created, and one or more States have refused payment or initiated litigation against Western Union. The settlement agre ement and district court’s order therefore contemplate a f und contingent upon the outcome of these intermediate steps and limited to the excess available to cr eate the indemnity fund; no provisions guarantee an indemn ity fund of a particular si ze or proscribe the payment of fees beyond a certain point. Western Uni on’s interest in paym ents from that fund is thus likewise contingent and limited. Under these f acts, we cannot agree the11 settlement agreement or the district court’s order confer s on Western Union a legally protectable interest in a larger indemnity fund. Western Union relies on Boeing Company v. Van Gemert , 444 U.S. 472 (1980), to argue it has standing by virtue of its interest in payments from the indemnity fund. Boeing involved a class action brought by holders of registered debentures to recover losses resulting from Boeing’s failure to provide proper notice that those debentures could be redeemed on favorable term s. 444 U.S. at 474. The district court entered a j udgment assessing damages agai nst Boeing with respect to the class as a whole and ordered Boeing to deposit that amount into escrow at a commercial bank. Id. at 476. Class members could then recover their individual share of the award through a special master appointed by the court. Id. Boeing claimed an interest in the return of any unclaimed funds. Id. at 477. The Supreme Court entertained Boeing’s challenge to the scope of an attorney-fee aw ard paid from the settlement fund, observing th at Boeing had “an interest, arising from its colorable claim for the return of excess money, in wh ether attorney’s fees could be assessed against the entire fund” as opposed to onl y that portion of th e settlement fund actually claimed by class members. Id. at 481 n.7. Western Union claims it ha s “much more than the ‘col orable claim’ asserted by Boeing” because the district court’s orde r provides for indemnification of Western Union’s costs of defense. But the district court’s order here gives Western Union no right to the return of excess funds in the CSF, the cy pres fund, or the indemnity fund. Instead the settlement provides a much more limited right to reimbursement of12 costs and judgments actually incurred, well after amounts have been expended to satisfy class claims, attorney fees, settlement expenses, class representative fees, and payments to settling States. And unlike in Boeing , the settlement fund here was comprised of amounts belonging to the cla ss members, not to Western Union. We therefore do not agree that Western Union is in the same position as the defendant in Boeing , and Boeing does not alter our conclusion th at Western Union’s interest in payments from the indemnity fund is insuffic ient to give it standing to challenge the award of fees from the CSF. Western Union’s Injury 2. Next, even if we were to agree that Western Union’s interests were implicated by a diminution in the value of the CSF or indemnity fund, we would still conclude Western Union has failed to demonstrate a substantial risk of actual injury. As discussed above, Western Union’s inte rest is only in reimbursement or indemnification payments from the separa te indemnity fund, not a return of the remainder of the fund itself. The district court’s order au thorizes Western Union to seek payment of judgments or reimburseme nt for costs and fees incurred in defending against the claims of non-se ttling States. Thus, it is not enough for Western Union to show a diminution of the indemnity fund; it must show that diminution would result in a deficiency in the f und’s capacity to reimburse We stern Union for its incurred costs and judgments. We conclude there is insuffi cient record evidence to support such a claim of injury without resort to sp eculation. Even given the threat s of enforcement identified13 by Western Union, at this point in time there are no judgments against Western Union, and the likelihood of a State obtai ning a judgment agains t Western Union is unclear. Indeed, the parties ag ree the States are unlikely to prevail against Western Union on claims for escheat of money that wa s paid into the CSF. And, in any event, “[i]t is just not possible for a litigant to prove in advance th at the judicial system will lead to any particular result in his case.” Whitmore v. Arkansas , 495 U.S. 149, 159– 60 (1990). Thus, Western Union has not de monstrated a substantial risk that a judgment meriting payment from the indemnity fund will be entered against it, or in what amount. And while Wester n Union will certainly incur some costs in defending against even unsuccessful suit s by the States, there is nothing in the record from which to estimate what those costs will be or to conclude they will exceed the amounts available to reimburse and indemnify Western Uni on. Given the uncertainty both in the amount of liability and costs We stern Union will incur and in the amount of money ultimately available to indemn ify Western Union, we cannot with any certainty conclude there is a substantial risk the indemnity fund will be insufficient to make Western Union whole. While West ern Union need not demonstrate any particular magnitude of deficiency to s how it will be injured by the payment of the attorney-fee award from the CSF, Western Un ion must demonstrate that a deficiency will result. On this record , it has failed to do so.
B. Traceability Western Union also suggests it will su ffer injury from an excessive attorneyfee award because “[t]he large (30%) bite out of the fund will increase the likelihood14 that states will be unhappy w ith their shares and seek relief from Western Union.” “[T]he traceability component of the standing test contem plates a causal relationship between the injury and the defendants’ challenged acts.” United States v. Ramos , 695 F.3d 1035, 1046 (10th Cir. 2012) (interna l quotation marks omitted). Western Union has directed us to no support for its claim that the size of the attorney-fee award may alter the likelihood of enforcement actions by the States. Rather, for the limited number of States where the record indicat es intent to bring enforcement actions against Western Union, the “t rigger” for those actions is Western Union’s deposit of money into the CSF that would have escheate d to the States. There is accordingly no evidence that any State would refrain from pursuing an enforcement action but for the reduction in its pro rata share by virt ue of the attorney-fee award to Class Counsel. We share the Supreme Court’s “rel uctance to endorse standing theories that rest on speculation about the deci sions of independent actors.” Clapper , 133 S. Ct. at 1150. We therefore cannot conclude th e attorney-fee award will cause additional States to bring enforcement actions, a nd Western Union has thus failed to demonstrate this alleged in jury is fairly tr aceable to the a ttorney-fee award. Because Western Union has not establishe d a nonspeculative inju ry in fact that is fairly traceable to the attorney-fee award, we concl ude Western Union has failed to establish standing. Accordingl y, we need not consider whether any alleged injury would likely be redressed by a favorable decision.15 IV. CONCLUSION Western Union lacks a legally protectable interest in the CSF that would be injured by the award of attorney fees to Class Counsel. West ern Union’s purported “reversionary” interest is merely a right to reimburseme nt of the expenses it actually incurs from litigation that may or may not be brought by third parties. And the reimbursement of those expens es will come from a separate indemnity fund that is to be created from a cy pres f und that will be established with excess pr oceeds in the CSF. In turn, the balance of the CSF is dependent on a va riety of factors other than the amount of attorney fees, including the number of clas s members who seek relief. Accordingly, Western Union has not demons trated any concrete and particularized and actual or imminent injury it will suffer as a result of the district court’s approval of the attorney-fee award to Class Counsel. We therefor e conclude Western Union lacks standing to challenge th e attorney-fee award to Clas s Counsel, and we dismiss this appeal for lack of jurisdiction.