PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

 

JAMES P. TENNILLE; ADELAIDA 

DELEON; YAMILET RODRIGUEZ; 

ROBERT P. SMET, individually and on 

behalf of all others similarly situated, 

 Plaintiffs - Appellees, 

v. 

THE WESTERN UNION COMPANY; 

WESTERN UNION FINANCIAL 

SERVICES, INC., 

Defendants - Appellees. 

SIKORA NELSON; PAUL DORSEY, 

 Objectors – Appellants. 

 Nos. 13-1310, 13-1317 

 

Appeal from the United States District Court 

 for the District of Colorado 

(D.C. No. 1:09-CV-00938-JLK-KMT)

 

John E. Anding (Theodore J. Westbrook with him on the briefs), Drew, Cooper & 

Anding, Grand Rapids, Michigan, for Objector-Appellant Sikora Nelson. 

Paul Dorsey, pro se.*

 

*After examining the briefs and appellate record, this panel has determined unanimously 

that oral argument would not materially assist the determination of Paul Dorsey’s appeal, 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 1, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Jeffrey A. Leon, Quantum Legal LLC, Highland Park, Illinois (Jamie E. Weiss, Quantum 

Legal LLC, Highland Park, Illinois, Richard J. Burke, Quantum Legal, LLC, St. Louis, 

Missouri, Jonathan Shub, Seeger Weiss LLP, Philadelphia, Pennsylvania, Seth A. Katz, 

Burg Simpson Eddredge Hersh & Jardine P.C., 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, and Mitchell Baker, Denver, 

Colorado, for Plaintiffs – Appellees; Charles G. Cole and Thomas M. Barba, Steptoe & 

Johnson, LLP, Washington, D.C., Jason A Yurasek, Perkins Coie LLP, San Francisco, 

California, and Jess A. Dance, Perkins Coie LLP, Denver, Colorado, with him on the 

brief, for Defendants-Appellees. 

 

Before LUCERO, EBEL, and HOLMES, Circuit Judges. 

EBEL, Circuit Judge. 

 

 These appeals stem from the settlement of a class action. Two unnamed class 

members challenge the district court’s decision to certify the class and approve the 

settlement. They argue, among other things, that the class representatives cannot 

adequately represent all of the class members; the settlement is unfair because it uses 

primarily the money belonging to the class to fund the settlement; and the district court 

did not adequately notify absent class members of the class action and the settlement. 

We conclude that their objections lack merit. Therefore, having jurisdiction under 28 

U.S.C. § 1291, we AFFIRM the district court’s decisions. 

 

No. 13-1317. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). That appeal is 

therefore ordered submitted without oral argument. 

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BACKGROUND 

I. Factual background

 At any given time, Defendants Western Union Company and Western Union 

Financial Services, Inc. (“Western Union”) holds over $100 million that belongs to its 

customers. These funds are comprised of money transfers that customers attempted to 

send through Western Union which failed to be delivered for some reason. The funds 

belong to Western Union’s customers. After deducting its administrative fees, Western 

Union would return these funds any time that a customer requested a refund. But, while 

Western Union usually knows within minutes if a wire transfer fails, the sending 

customer is often unaware that his wire transfer failed and so does not know to ask 

Western Union to return his money. And Western Union, although possessing its 

customer’s contact information, does not notify the customer that his wire transfer failed. 

Instead, Western Union holds the unclaimed money and earns interest on it. Eventually, 

after several years, the law of the state where the customer initiated the wire transfer 

requires Western Union to notify the customer that the unclaimed funds will soon escheat 

to the state. At that time, Western Union uses the contact information that it has had all 

along to give the customer this required notice. But often Western Union’s contact 

information is no longer accurate. Thus, historically Western Union’s customers reclaim 

only about 15% of the escheating funds. The rest of the unclaimed funds (minus Western 

Union’s administrative fees) eventually escheat to the relevant state, which will continue 

to hold these unclaimed funds for any customer who later claims them. In the meantime, 

the state earns interest on the funds for itself. 

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II. This litigation

 Four Western Union customers whose wire transfers failed (“Plaintiffs” or “named 

Plaintiffs”) sued Western Union, alleging state-law claims for, among other things, 

conversion, unjust enrichment, and breach of fiduciary duty. As remedies, Plaintiffs 

sought declaratory and injunctive relief and damages. 

Named Plaintiffs initiated this litigation as a class action on behalf of all Western 

Union customers whose wire transfers failed.1

 This class included three groups: 1) those 

customers who, like the named Plaintiffs, had already reclaimed their funds from Western 

Union; 2) those customers whose funds had already escheated to a state; and 3) those 

customers whose funds Western Union was currently holding. Named Plaintiffs asserted 

this class action under, e.g., Fed. R. Civ. P. 23(b)(3), seeking “damages designed to 

secure judgments binding all class members save those who affirmatively elected to be 

excluded,” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614-15 (1997). 

 The district court, before deciding whether to certify the class, made several 

preliminary rulings, including denying Western Union’s motion to compel the named 

Plaintiffs to arbitrate their claims against Western Union individually. Western Union 

took an interlocutory appeal from that decision. See 9 U.S.C. § 16(a)(1)(A).2

 

 

1 The district court had jurisdiction over this case under the Class Action Fairness Act 

(“CAFA”) because there is more that $5 million at issue and at least one member of the 

class of plaintiffs is a citizen of a State different from the defendants. See 28 U.S.C. 

§ 1332(d)(2)(A). 

2

 That appeal, No. 11-1531, remains in the Tenth Circuit on abated status. Once the 

opinion in this case is issued, the parties are requested promptly to contact the Clerk of 

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III. Settlement agreement

 While the interlocutory appeal was pending, Western Union and the named 

Plaintiffs, aided by the Tenth Circuit’s mediator, negotiated a settlement of the class 

action. Summarizing, that settlement provides for the following: First, Western Union 

will change its business practices to notify its customers when their wire transfers failed. 

In addition, Western Union will help customers whose unclaimed funds have already 

escheated to a state reclaim their money from the relevant state and Western Union will 

pay these customers interest for the time Western Union held their funds before 

escheatment. 

The rest of the settlement will be funded using approximately $135 million in 

unclaimed funds belonging to Western Union customers that Western Union continues to 

hold. From that fund, a neutral administrator will pay (1) an incentive award of $7,500 to 

each of the four named Plaintiffs; (2) interest to customers who, like the named Plaintiffs, 

have already reclaimed their money from Western Union, for the time that Western 

Union held their money after their wire transfers failed; (3) to customers whose money 

Western Union still holds, the unclaimed funds plus interest for the time Western Union 

held their money, minus Western Union’s administrative fees; and (4) the costs of 

administering the settlement. In addition, the district court awarded 30% of this 

settlement fund, or more than $40.57 million, to class counsel as attorneys’ fees.3

 

 

the Court to determine how that pending appeal should thereafter proceed or be 

dismissed. 

3 Western Union has challenged that fee award in another appeal, No. 14-1432. We 

express no opinion as to the propriety of the fee award in this opinion.

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The settlement administrator will disburse money from the settlement fund only to 

class members who file claims with the administrator. The settlement obviously 

contemplates that many class members will not file claims because the settlement fund is 

comprised only of the funds from the failed wire transfers that already belong to class 

members. Yet the settlement uses this fund, not only to refund money from the failed 

wire transfers, but also to pay (1) interest to all class members, (2) the costs of 

implementing the settlement, and (3) attorneys’ fees to class counsel. If too many class 

members file claims, the administrator will not be able to pay class members the full 

amount to which they are entitled under the settlement agreement. The record, however, 

indicates that this is unlikely because historically only 15% of customers reclaim money 

from Western Union once Western Union notifies the customers, prior to escheatment, 

that it is holding their unclaimed funds. If more class members file claims than the 

settlement fund can pay, the settlement administrator will pay class members only a pro 

rata share of the amount to which they are entitled. In return for these payments, either in 

full or pro rata, class members who do not opt out of the settlement will release Western 

Union from any liability stemming from its retention and use of class members’ money 

from the failed wire transfers. 

If there is any of the settlement fund remaining after paying all the claims class 

members file, then the administrator will place that remaining money in a cy pres fund to 

be distributed by the district court at its discretion. The parties suggest that the court 

disburse the cy pres fund among the states to which the unclaimed funds would have 

escheated. The settlement does not take effect until after all appeals have been resolved. 

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IV. Remand for class certification and approval of the settlement 

Because the parties reached their settlement while Western Union’s interlocutory 

appeal was pending, this court remanded the case to permit the district court to consider 

whether to certify the class and approve the class settlement. On remand, the district 

court preliminarily certified the class, defined as 

[a]ll persons (a) who initiated any Western Union Transaction in the United 

States on or after January 1, 2001 and on or before the date of Preliminary 

Approval [January 3, 2013], whose Western Union Transaction was not 

redeemed within 60 calendar days; and (b) who either (i) have not claimed 

their money transfer funds (nor had that money claimed on their behalf) 

from Western Union; or (ii) were informed by written communication that 

their money was about to escheat to the state, district, territory, or U.S. 

jurisdiction in which their money transfers were initiated, and who sought 

and received a refund of their money but did not receive a payment for 

interest Western Union earned on that money. 

(Nelson App. at 451-52 ¶ 3.) The district court also preliminarily approved the 

settlement, directed that notice of the class action and the proposed settlement be sent to 

approximately 1.3 million putative class members, gave class members the opportunity to 

opt out, and gave those choosing to remain in the class an opportunity to object to the 

terms of the settlement. Unnamed class members Sikora Nelson, represented by counsel, 

and Paul Dorsey, acting pro se (“Objectors”), were among one dozen class members who 

objected to the settlement. After conducting a “fairness hearing,” see Fed. R. Civ. P. 

23(e)(2), the district court overruled all of the objections; finally certified the class; 

approved the settlement as fair, reasonable and adequate; and entered final judgment. 

Nelson and Dorsey each appeal. Although the district court required Nelson and Dorsey 

each to post an appeal bond of over $1 million in order to pursue their appeals, this court 

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reduced the amount of the bond to $5,000. See Tennille v. W. Union, 774 F.3d 1249, 

1251, 1258 (10th Cir. 2014). Nelson and Dorsey each posted that bond. 

STANDING 

As a threshold matter, the named Plaintiffs suggest that Objectors lack standing to 

raise some of their appellate arguments. As members of the class, however, each 

Objector has Article III and prudential standing to participate in this litigation. See 

Devlin v. Scardelletti, 536 U.S. 1, 6-7 (2002). 

The named Plaintiffs’ real complaint is that Objectors are raising new arguments 

for the first time on appeal that they failed to preserve in the district court. Although we 

“generally will not consider new arguments on appeal,” DG ex rel. Stricklin v. 

Devaughn, 594 F.3d 1188, 1195 (10th Cir. 2010), we have discretion to do so, see United 

States v. Jarvis, 499 F.3d 1196, 1202-03 (10th Cir. 2007). We exercise that discretion 

here because we are satisfied that the arguments Objectors now raise on appeal were 

before the district court in some form. 

DISCUSSION 

 Objectors Nelson’s and Dorsey’s appellate arguments fall into three general 

categories: objections to 1) certification of the class, 2) approval of the settlement, and 

3) the procedures the district court used to reach these determinations.4

 

 

4

 Nelson, represented by counsel, challenges class certification, the fairness of the 

settlement, the adequacy of notice sent to the class, and the district court’s independent 

exercise of its discretion. Dorsey, proceeding pro se, adopts Nelson’s argument 

challenging the district court’s independent exercise of its discretion and offers several 

additional challenges to the notice sent to class members. 

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I. The district court did not abuse its discretion in certifying the class 

We review the district court’s decision to certify the class for an abuse of 

discretion. See In re Urethane Antitrust Litig., 768 F.3d 1245, 1253 (10th Cir. 2014), 

petition for cert. filed, (U.S. Mar. 9, 2015) (No. 14-1091, 14A665). Nelson contends that 

the district court should not have certified the class because the named Plaintiffs, as the 

class’s representatives, could not fairly and adequately protect the interests of the class as 

a whole, see Fed. R. Civ. P. 23(a).5

 

The inquiry into whether a class representative can protect the class’s interest 

“serves to uncover conflicts of interest between named parties and the class they seek to 

represent.” Amchem Prods., 521 U.S. at 625. In order to protect the class’s interest 

adequately and fairly, “a class representative must be part of the class and possess the 

same interest and suffer the same injury as the class members.” Id. at 625-26 (internal 

quotation marks, alterations omitted). Thus, the class representatives’ interest must be 

 

5 Named Plaintiffs, as the parties seeking certification of the class, had to demonstrate to 

the district court that: “(1) the class is so numerous that joinder of all members is 

impracticable; (2) there are questions of law or fact common to the class; (3) the claims 

or defenses of the representative parties are typical of the claims or defenses of the class; 

and (4) the representative parties will fairly and adequately protect the interests of the 

class.” Fed. R .Civ. P. 23(a) (emphasis added); see also Tabor v. Hilti, Inc., 703 F.3d 

1206, 1228 (10th Cir. 2013). In addition to meeting these four requirements, a class 

action must also be maintainable under one of the three categories of class actions set 

forth in Rule 23(b). See Amchem Prods., 521 U.S. at 614. The district court determined 

that this class action was maintainable under Rule 23(b)(3), which includes “class actions 

for damages designed to secure judgments binding all class members save those who 

affirmatively elected to be excluded,” Amchem Prods., 521 U.S. at 614-15. There are a 

number of requirements Plaintiffs must meet before a court will certify a Rule 23(b)(3) 

class. Of these Rule 23(a) and (b)(3) requirements, Nelson, on appeal, contends only that 

named Plaintiffs failed to establish that they could fairly and adequately protect the 

interest of the class as a whole. 

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“coextensive” with the interest of the class; but this does not mean that the class 

representatives’ “positions have to be identical” with the positions of the absent class 

members. 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice 

& Procedure § 1769, pp. 434-35 (3d ed. 2005). “Rather . . . the representatives and the 

class members must share common objectives and legal or factual positions . . . .” Id. 

“[O]nly a conflict that goes to the very subject matter of the litigation will defeat a party’s 

claim of representative status.” Id. § 1768, pp. 390. 

If there is a conflict preventing named class representatives from protecting the 

interest of the entire class adequately, the district court has discretion to order subclasses, 

each with their own named representative. See id. § 1759, pp. 133-34; see also Fed. R. 

Civ. P. 23(c)(5). This is Nelson’s argument on appeal, that the district court, before 

certifying the class, should have created several subclasses because the named Plaintiffs 

could not adequately protect the interests of all class members, for three reasons. 

A. The named Plaintiffs, but not all class members, had contractually agreed 

with Western Union to arbitrate their disputes 

 The four named Plaintiffs’ contracts with Western Union required those Plaintiffs 

to arbitrate any disputes they had with Western Union and to do so individually and not 

as a class. Not all class members had such arbitration clauses in their contracts with 

Western Union. Objector Nelson, for example, had no such arbitration agreement. In 

light of that, she contends that the named Plaintiffs cannot adequately protect her interest, 

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and the interest of similarly situated class members.6 

At the time the district court certified the class, that court had already ruled that 

the arbitration provisions in the named Plaintiffs’ contracts with Western Union were 

unenforceable. See Charron v. Wiener, 731 F.3d 241, 249-54 & 253 n.9 (2d Cir. 2013) 

(addressing adequacy of class representatives in light of district court’s prior rulings, 

regardless of whether prior rulings were legally correct), cert. denied, 134 S. Ct. 1941 

(2014); 1 Newberg on Class Actions § 3:58 (noting that, in order to prevent class 

representative from adequately representing class’s interest, a conflict of interest “must 

be manifest at the time of certification”). 

It is true that the named parties settled the class’s claims during the pendency of 

Western Union’s interlocutory appeal challenging the district court’s decision not to 

enforce the arbitration provisions. Had Western Union won that appeal, the named 

Plaintiffs could not have participated in this class action. In light of that, Nelson further 

argues that she, and other class members without arbitration provisions, could have 

negotiated a much better settlement than the named Plaintiffs. 

Under the circumstances presented here, we cannot agree. The named parties 

acknowledge that they negotiated the settlement “in the shadow of the district court’s 

 

6

 Nelson raised this argument briefly during the fairness hearing before the district court. 

In doing so, however, Nelson argued, not that the arbitration clauses prevented the named 

Plaintiffs from adequately protecting the interests of the entire class, but instead that the 

fact that only some class members had arbitration provisions made the class settlement 

unfair and not reasonable. Nelson, therefore, never asked the district court specifically to 

certify a subclass for class members like her who had not agreed with Western Union to 

arbitrate disputes. 

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earlier ruling[]” declining to enforce the arbitration provisions, Charron, 731 F.3d at 253 

n.9. But Nelson, too, had her own obstacle that might have prevented her from 

participating in this class action. While she had not agreed with Western Union to 

arbitrate disputes, Nelson had agreed not to assert any class-action claims against 

Western Union. Like the named Plaintiffs, then, Nelson (and class members similarly 

situated to her), also had an incentive to settle the class claims in order to avoid the 

possible enforcement of a procedural obstacle that would have prevented her from 

participating in this class litigation. In light of that, the named Plaintiffs’ interests were 

sufficiently coextensive with Nelson’s interests, and the interests of those class members 

like her, who had class-action waivers.7

 

B. Michigan class members like Nelson can recover treble damages on their 

conversion claims, but the four named Plaintiffs cannot 

 None of the named Plaintiffs were Michigan residents. But Objector Nelson is. 

She argues that a 2005 Michigan statute, Mich. Comp. Laws § 600.2919a, permits her, 

and class members like her who initiated failed wire transactions in Michigan after 2005, 

to recover treble damages from Western Union, in addition to actual damages, for 

conversion.8

 Nelson thus contends that, because she could have recovered much more 

 

7

 Nelson asserts that her class-action waiver is “void as a matter of law.” (Nelson Br. at 

21 n.13.) But cf. Am. Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304, 2307, 

2309-10 (2013) (upholding contractual waiver of class arbitration). But Nelson cites no 

persuasive authority to support that conclusion. The enforceability of her class-action 

waiver, then, like the enforceability of the named Plaintiffs’ arbitration provisions, 

remained a contested, or at least potentially contested, issue prior to the settlement. 

8

 Michigan Compiled Laws § 600.2919a specifically provides, in pertinent part, that 

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from Western Union than the named Plaintiffs could on their conversion claims, the 

named Plaintiffs could not adequately represent her interests and the interests of similarly 

situated Michigan class members. 

 At the time that the district court decided that the named Plaintiffs could 

adequately protect the class’s interest as a whole, however, the district court had already 

ruled that Colorado law governed all of the class members’ conversion claims. Nelson 

never challenged, or even acknowledged, that prior ruling when she argued to the district 

court that she could obtain a greater conversion recovery than the named Plaintiffs.9

 In 

light of that, there was no manifest conflict of interest between Nelson and the named 

Plaintiffs at the time the district court determined that those named Plaintiffs could 

 

(1) A person damaged as a result of either or both of the following may 

recover 3 times the amount of actual damages sustained, plus costs and 

reasonable attorney fees: 

(a) Another person’s stealing or embezzling property or converting 

property to the other person’s own use. 

. . . . 

(2) The remedy provided by this section is in addition to any other right or 

remedy the person may have at law or otherwise. 

An award of treble damages is discretionary under § 600.2919a, and it is left to the trier 

of fact to determine whether treble damages are warranted in any given case. See Aroma 

Wines & Equip., Inc. v. Columbia Distrib. Servs., Inc., 844 N.W.2d 727, 732 (Mich. Ct. 

App. 2013) (per curiam), appeal granted on other grounds, 852 N.W.2d 901 (Mich. 

2014). 

9

 When Nelson raised this argument in the district court, she did so, not to challenge the 

adequacy of the class representatives, but instead to challenge the fairness of the 

settlement. Nelson does not reassert that specific fairness argument on appeal.

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adequately represent the class as a whole. See 1 Newberg on Class Actions § 3:58. 

 It was not until her reply brief filed with this court that Nelson first argued that the 

district court erred when it determined that Colorado law governed all of the class’s 

conversion claims. Because Nelson waited so long to make this argument, she has 

waived it. See Martin K. Eby. Constr. Co. v. OneBeacon Ins. Co., 777 F.3d 1132, 1142 

(10th Cir. 2015).10 

But even if Michigan, rather than Colorado, law applied to Nelson’s conversion 

claim, an award of treble damages is only discretionary under Michigan law. For these 

reasons, the district court did not abuse its discretion in determining that the named 

Plaintiffs could adequately protect the interests of Michigan class members. 

C. Although the named Plaintiffs already reclaimed their money from 

Western Union, Western Union still holds funds belonging to Nelson and 

other similarly situated class members 

 

 Nelson next argues that the four named Plaintiffs could not adequately protect the 

interest of the entire class because the named Plaintiffs had already reclaimed their 

 

10 The parties agree that Colorado choice-of-law rules apply to the question of which 

state’s law governs class members’ conversion claims. The parties further agree that the 

relevant question, in making that choice-of-law determination, is which state had the 

closest relationship to the conversion claims. The district court determined that Colorado 

had the closest connection because Colorado is where Western Union decided, as a 

policy, to retain its customers’ money without notifying them of failed wire transfers. In 

her reply brief on appeal, Nelson argues instead that the law where a class member 

initiated a failed transfer has a closer connection to the conversion because that is where 

the class member suffered the loss of the use of her money during the time Western 

Union kept the funds. We do not need to rule on that choice-of-law issue because it was 

not preserved for us on appeal. But certainly the position taken by the district court is a 

defensible position that would need to be considered in evaluating the parties’ similar or 

disparate interests. 

 

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money from Western Union.11 Therefore, in this action, the named Plaintiffs seek to 

recover only the interest that Western Union earned while it retained those Plaintiffs’ 

money and the administrative fees that Western Union charged the named Plaintiffs for 

holding their money. On the other hand, because Western Union continues to hold 

money belonging to Nelson and those class members similarly situated to her, they seek 

to reclaim their money, plus interest and fees.12 

This difference in circumstances between class members is not, by itself, sufficient 

to preclude the named Plaintiffs from adequately and fairly representing the entire class 

of customers whose money Western Union retained after their wire transfers failed. 

Western Union’s challenged conduct was the same toward all class members. See 7A 

Wright, Miller & Kane, Federal Practice & Procedure § 1769, pp. 434-35 (class 

representatives’ interests must be “coextensive” with the class members’ interests, but 

need not “be identical. Rather . . . the representatives and the class members must share 

 

11 Nelson did not make this argument in the district court. Nor did Nelson ask the district 

court to create a subclass on this basis. Attorneys general from several states did raise 

this argument to the district court, but they did so to challenge the fairness of the class 

settlement, not the adequacy of the class representatives. 

12 On appeal, the named Plaintiffs try to bolster their ability to represent the entire class 

by asserting that Western Union actually continues to hold money belonging to two of the 

four of named Plaintiffs. But in their second amended complaint, the named Plaintiffs 

alleged that all four of them had already reclaimed their money from Western Union. 

And the named Plaintiffs do not cite to any evidence that they later presented to the 

district court, in response to the attorneys general’s argument, that established that 

Western Union continued to hold funds belonging to some of the named Plaintiffs. See 

generally Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (holding party 

seeking class certification must be prepared to prove he meets all of Rule 23’s class 

certification requirements). 

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common objectives and legal or factual positions . . . .”). 

Nelson’s additional argument, that the named Plaintiffs negotiated a settlement 

that might result in Nelson and those class members who still need to reclaim their 

money from Western Union not recovering all of the money that Western Union is 

holding for them, is a challenge to the fairness of the settlement rather than to the 

adequacy of the named Plaintiffs’ representation. See Wal-Mart Stores, Inc. v. Visa 

U.S.A., Inc., 396 F.3d 96, 113 (2d Cir. 2005). We address that fairness argument next. 

II. The district court did not abuse its discretion in approving the settlement as fair, 

adequate, and reasonable 

 When, as here, the proposed settlement will “bind class members, the court may 

approve it only after a hearing and on finding that it is fair, reasonable, and adequate.” 

Fed. R .Civ. P. 23(e)(2). We review the district court’s decision to approve a class 

settlement for an abuse of discretion. See N. Eng. Health Care Employees Pension Fund 

v. Woodruff, 512 F.3d 1283, 1290 (10th Cir. 2008). In deciding whether to approve a 

class settlement, a district court considers whether “(1) the settlement was fairly and 

honestly negotiated, (2) serious legal and factual questions placed the litigation’s 

outcome in doubt, (3) the immediate recovery was more valuable than the mere 

possibility of a more favorable outcome after further litigation, and (4) [the parties] 

believed the settlement was fair and reasonable.” Weinman v. Fid. Capital Appreciation 

Fund (In re Integra Realty Res., Inc.), 354 F.3d 1246, 1266 (10th Cir. 2004). 

Focusing on the second and third factors, Nelson contends that the settlement is 

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unfair because absent class members like her, who have not yet reclaimed their money 

from Western Union, will finance most of the settlement for the entire class, including 

paying class counsel’s attorneys’ fees, the administrative costs of the settlement, the 

incentive awards to the four named Plaintiffs, and interest to those class members who 

have already reclaimed their money from Western Union. Yet, depending on how many 

class members file claims, Nelson and similarly situated class members may not be able 

to reclaim the full amount of money Western Union is holding for them, money that they 

could have recovered simply by asking Western Union for a refund. Nelson further 

suggests that the settlement is unfair because Western Union gets off easy; that is, 

Western Union, as the alleged wrongdoer, should be funding the settlement to a greater 

extent than it is.13 

We are not unsympathetic to Nelson’s argument. The settlement is primarily 

funded by money that everyone agrees belongs to some of the absent class members like 

Nelson. The named Plaintiffs, who do not own any of this money, negotiated a 

settlement that gives almost one-third of this fund to their attorneys and further uses this 

money to pay themselves incentive awards, all class administrative costs, and interest to 

themselves and class members like them for the time Western Union held their funds. 

Western Union uses this fund, which it does not own, to negotiate a release of all class 

members’ claims against it stemming from its retention of their money without telling the 

 

13 As previously mentioned, although Nelson did not raise this argument in the district 

court, several states’ attorneys general challenged the fairness of the settlement on this 

basis in an amicus brief filed with the district court. The district court, therefore, did 

consider this argument before approving the settlement.

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class members that their wire transfers failed. Western Union also gets to keep all of the 

administrative fees it charged its customers for holding their money, approximately $29 

million, and most of the $19 million in interest it earned using its customers’ unclaimed 

money. Western Union itself only has to pay interest to those class members whose 

property has already escheated to a state. 

Nonetheless, Nelson’s claim of unfairness is ultimately unpersuasive. First, even 

though all Nelson had to do to reclaim her money from Western Union was to ask for a 

refund, it is likely that, without notice of this class action, Nelson and most other 

similarly situated class members would not have known that Western Union was holding 

their money. And through the settlement, class members will recover interest for the time 

during which Western Union held these funds, something they would not have received 

simply by asking Western Union to return their money. Further, without this class action, 

Western Union would have had no incentive to change its business practices. 

Absent the class settlement, the parties would have had to litigate a number of 

serious legal issues, including: 1) procedural obstacles to this class action, such as 

customers’ agreements with Western Union to arbitrate disputes individually and to 

waive class-action claims; 2) Western Union’s defenses, including the fact that the 

contracts with its customers did not require Western Union to notify them that their 

money transfers failed, but did require customers to pay Western Union administrative 

fees, and 3) the possibility of a variety of other defenses that might apply to individual 

customer’s claims. In light of those serious disputed legal issues, the outcome of this 

litigation was uncertain and further litigation would have been costly. 

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It is true that, through the settlement, class members who do not opt out of the 

class will have to release all claims they might have against Western Union stemming 

from its retention of its customers’ unclaimed money, including claims for conversion, 

unjust enrichment and breach of fiduciary duty. But in return class members will recover 

almost all of the direct damages that they would have recovered if they had succeeded at 

trial, their unclaimed money plus interest and a change in Western Union’s business 

practices. The class members did not obtain, through the settlement, the return of the 

administrative fees that Western Union charged class members to hold their unclaimed 

money and damages on their claims of conversion, unjust enrichment, and breach of 

fiduciary duty. But that is the nature of a settlement. We cannot say that it was 

unreasonable for the class to agree to forego recovering those administrative fees, which 

were provided for in the contracts customers had with Western Union, and damages on 

the conversion, unjust enrichment and breach-of-fiduciary-duty claims, instead of 

deciding to undertake expensive litigation, with an uncertain outcome, in order to try to 

obtain these additional recoveries. 

Moreover, the settlement provides that Nelson will have the same recovery as all 

other class members: her money (minus administrative fees) plus interest, and Western 

Union’s agreement to stop this practice. This assumes, of course, that the settlement fund 

will be sufficient to pay all those class members who file claims. As previously 

mentioned, there is the possibility that, depending on the number of claims filed against 

the settlement fund, Nelson and other class members may not be able to recover fully. 

But the likelihood of that happening is not very great, given the fact that, historically, 

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only 15% of customers reclaim money from Western Union after Western Union notifies 

them that it is holding these funds. Nelson presents no evidence to the contrary. But 

even if class members like Nelson recoup only a pro rata portion of the money that 

belongs to them, it may be more than these class members would have ever reclaimed 

had Western Union’s retention of these funds remained unknown to them until the funds 

were about to escheat to a state. 

For these reasons, we cannot say that the district court, having considered the 

serious legal questions that placed the litigation’s outcome in doubt and the value of the 

immediate recovery provided by this settlement with only the possibility of a more 

favorable outcome after further litigation, see In re Integra Realty Res., 354 F.3d at 1266, 

abused its discretion in approving the settlement as fair, reasonable, and adequate.

III. Procedure 

A. Notice to class members 

 Rule 23(c)(2), Fed. R. Civ. P., “provides that, in any class action maintained under 

subdivision (b)(3), each class member shall be advised that he has the right to exclude 

himself from the action on request or to enter an appearance through counsel, and further 

that the judgment, whether favorable or not, will bind all class members not requesting 

exclusion.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). “To this end, the 

[district] court is required to direct to class members ‘the best notice practicable under the 

circumstances including individual notice to all members who can be identified through 

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reasonable effort.’” Id. (quoting Rule 23(c)(2)).14 Rule 23’s notice requirements are 

designed to satisfy due process by providing unnamed class members the right to notice 

of certification and settlement, and a right to be heard. See id. at 173-74. Notice, 

therefore, “must be reasonably calculated, under all the circumstances, to apprise 

interested parties of the pendency of the action and afford them an opportunity to present 

their objections.” Id. at 174 (internal quotation marks omitted). 

We review de novo questions of notice that implicate due process. See DeJulius v. 

N. Eng. Health Care Employees Pension Fund, 429 F.3d 935, 942-43 (10th Cir. 2005). 

Then, “[w]ithin the bounds of due process, . . . the form that such notice is to take is left 

to the discretion of the district court.” Weinman v. Fid. Capital Appreciation Fund (In re 

Integra Realty Res., Inc.), 262 F.3d 1089, 1109 (10th Cir. 2001). 

 1. Nelson’s challenge to notice 

 Nelson argues that the settlement notice the district court sent to class members 

did not fairly apprise them that, if they did not opt out of the settlement, class members 

would be releasing any conversion claim they might have against Western Union 

stemming from its retention of class members’ funds from failed wire transfers. 

Reviewing this argument de novo, because it implicates due process, see DeJulius, 429 

F.3d at 942-43, we reject it. 

The notice sent to putative class members informed them generally that, if they did 

 

14 Rule 23(c)(2)(B) requires the district court to give class members notice of the class 

action, including the claims and issues involved and the fact that the judgment will bind 

class members who do not opt out. In addition, Rule 23(e)(1) requires the district court to 

give class members notice of a proposed class settlement “in a reasonable manner.” 

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not opt out, they would “give up [their] right to sue Western Union for the claims that this 

settlement resolves” and they “won’t be able to start a lawsuit, continue with a lawsuit, or 

be part of any other lawsuit against Western Union about the legal issues in this case ever 

again.” (Nelson App. at 466, 469.) The notice further explained that this “lawsuit claims 

that Western Union did not timely notify its customers that their Western Union 

Transactions were not redeemed by the receivers to whom Western Union Transactions 

were sent, and as a result caused harm to their customers.” (Id. at 462; see also id. at 461 

(“This settlement involves a lawsuit over whether Western Union . . . timely notified its 

customers of unredeemed Western Union Transactions in the United States using 

Western Union’s money transfer services.”).) The notice, thus, adequately apprised 

putative class members of the nature of the claims at issue. See Gooch v. Life Investors 

Ins. Co. of Am., 672 F.3d 402, 423 (6th Cir. 2012) (stating that, in order to satisfy due 

process, “[a]ll that the notice must do is fairly apprise prospective members of the class 

of the terms of the proposed settlement so that class members may come to their own 

conclusions about whether the settlement serves their interests”) (internal quotation 

marks, alterations omitted); see also 7AA Wright, Miller & Kane, Federal Practice & 

Procedure § 1787, pp. 511-12 (stating that Rule 23’s notice requirements are satisfied if 

the notice gives Rule 23(b)(3) class members “sufficient information about the specific 

lawsuit to allow a class member to assess whether to exercise the right either to appear or 

to opt out”).15 

 

15 Nelson’s argument to the contrary is that this language failed to tell class members that 

the litigation involved, not only untimely notice, but also conversion; that is, Western 

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Moreover, the notice informed putative class members how to obtain more 

information about the settlement, directing them to the class settlement website, where 

they could get a copy of the Settlement Agreement, which explained that, if class 

members did not opt out of the settlement, they would release Western Union from 

liability for any claim that class members could have asserted based on the subject matter 

of the class litigation and settlement. The notice also told class members that, if they had 

“questions about the Released Claims and what they mean,” they could call and speak to 

class counsel for free, or they could speak to their own attorney at the class member’s 

expense. (Nelson App. at 470.) This notice satisfied due process by informing class 

members of several ways they could obtain additional information about the claims that 

they would be releasing if they joined the settlement. See Gooch, 672 F.3d at 424 

(holding that notice “met the due-process baseline” by providing “potential class 

members an address, phone number, and website with which to obtain more information 

about the proposed settlement”) (internal quotation marks, alterations omitted). 

 2. Dorsey’s challenges to notice 

 Dorsey’s objections to the class settlement involve challenges to how notice was 

 

Union’s improper use of these funds for its own gain. In support of his argument, Nelson 

relies upon Twigg v. Sears, Roebuck & Co., 153 F.3d 1222 (11th Cir. 1998). But that 

case is inapposite. There, the notice informed putative class members—described as 

those who had bought automotive repair services from Sears during a specified time 

period—that the class action involved “unnecessary and/or improper repairs” that 

violated state and federal law. Id. at 1228 (emphasis omitted). The Eleventh Circuit held 

that such notice was ineffective to inform class members that any claim for Sears billing 

them for services never performed was also included in the settlement, especially because 

the proposed class settlement did not provide any relief for such billing claims. Id. There 

is no analogous problem with notice in this case. 

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sent to putative class members.16 The district court directed that notice be sent to putative 

class members in several ways: 1) mailed to class members using updated addresses 

obtained from Western Union or class counsel; 2) emailed to those class members whose 

email address the settlement administrator had; and 3) published in several magazines. In 

addition, as previously mentioned, the settlement administrator established a website 

dedicated to the class settlement, from which class members could gain information and 

have their questions answered. The class administrator estimated that, after executing 

this notice plan, “[i]ndividual [n]otice reached 89.5% of the Settlement Class,” and notice 

in some form “reached approximately 92.9% of all Western Union customers (and 

therefore the Class), an estimated average of 1.4 times.”17 (Dorsey App. at 1213.) 

Nevertheless, Dorsey argues that the manner in which notice was sent to class members 

was inadequate, for the following reasons: 

a. Mailed notice was inadequate 

 The district court ordered notices to “be mailed via first-class mail to the last-

 

16 As part of his arguments about notice, Dorsey also contends that class counsel 

inadequately represented absent class members by not providing better notice to more 

class members and by not responding to Dorsey’s objections to the manner in which 

notice was sent to the class. 

17 Dorsey complains that he was never able to review a copy of the “Notice Plan.” While 

the settlement agreement required the named parties to provide the district court with a 

“Notice Plan” at the time they asked the court preliminarily to certify the class and 

approve the class settlement, it does not appear that the named parties in fact provided the 

district court with a specific notice plan. After notice was sent and after the deadline by 

which Dorsey had to file his objections, the named Plaintiffs reported to the district court 

how the administrator actually sent notice to class members. The question we address 

here is whether the notice actually sent to class members was adequate. 

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known mailing addresses of the putative Class members . . . for whom Western Union 

has contact information in their own databases.” (Nelson App. at 409 ¶ 3.D.3.) Class 

counsel reported to the court that notices were actually mailed “to all addresses 

associated with transactions included in the Class definition.” (Dorsey App. at 1217 

¶ 22; 1215 ¶ 18.) Dorsey contends that mailing notice only to addresses “associated 

with” the failed wire transactions was inadequate; rather, Dorsey argues that the district 

court’s order to mail notice to the last known address of class members required Western 

Union to cross-check all of its databases to determine if it had a more recent address for 

each class member than the address “associated with” the failed wire transfer. 

The named Plaintiffs suggest, as a factual matter, that Western Union did crosscheck its databases before turning the addresses over to the class administrator. But even 

assuming Western Union did not cross-check its databases, the class administrator 

updated the addresses it received from Western Union using the post office’s change-ofaddress database. Dorsey has not shown that updating the addresses in this manner 

provided less notice than had Western Union cross-checked its databases. Cf. In re 

Integra Realty Res., 354 F.3d at 1261 (upholding previous determination that mailed 

notice was adequate, in light of appellants’ failure to show that “another reasonable 

method of supplementing the . . . mailing list would have significantly increased the 

number of notices actually received”). Ultimately, Rule 23(c)(2) mandates that “the court 

must direct to class members the best notice that is practicable under the circumstances, 

including individual notice to all members who can be identified through reasonable 

effort.” See Eisen, 417 U.S. at 176. We are satisfied that the notice mailed to class 

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members in this manner did not violate Rule 23 nor deprive the absent class of due 

process. 

b. Notice may not have been sent to class members whose funds 

held by Western Union were “zeroed out” by the administrative 

fees Western Union charged 

 Dorsey next speculates, without specifics, that notice may not have been sent to 

putative class members whose administrative fees exceeded the amount of money 

Western Union was holding for them. But the district court preliminarily certified the 

class to include 

[a]ll persons (a) who initiated any Western Union Transaction in the United 

States on or after January 1, 2001 and on or before the date of the 

Preliminary Approval [January 3, 2013], whose Western Union Transaction 

was not redeemed within 60 calendar days; and (b) who . . . (i) have not 

claimed their money transfer funds (nor had that money claimed on their 

behalf) from Western Union . . . . 

(Dorsey App. at 144 ¶ 3.) The court further directed that notice be sent to all such class 

members “who can be identified with reasonable effort.” (Id. at 147 ¶ 9.b.) That order 

included the “zeroed out” class members. Further, class counsel presented evidence that 

notice in this regard was sent out as the district court ordered. And, in finally certifying 

the class and approving the settlement, the district court found “that notice has been given 

to the Class in the manner approved by the Court in its Preliminary Approval.” (Id. at 

1563 ¶ 7.) On that basis, it appears that notice was sent to the “zeroed out” class 

members. Dorsey offers no evidence to the contrary. 

c. Defective notice chilled class members’ objections to the 

settlement 

 The district court ordered that the notice to class members state, in pertinent part, 

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that an “objecting Class member must . . . agree to sit for deposition, within the County in 

which he, she, or it resides, within 14 calendar days after serving such objection.” 

(Nelson App. at 422 ¶ 8.a, 456 (emphasis added).) But the notice actually sent to 

individual class members told them, instead, that objectors “must be willing to agree to 

sit for a deposition, within the county or state in which you reside.” (Id. at 468 (emphasis 

added).) Dorsey contends that this error in the notice kept class members from large 

states from objecting to the settlement because those class members would have been 

concerned that they might have to sit for a deposition at a greater distance (and expense) 

from their home.18 

 Dorsey brought this error in the mailed notice to class counsel’s attention, after 

which the named Plaintiffs and Western Union agreed that an objector’s deposition could 

be taken “anywhere within the state in which the putative Class member resides, at the 

objector’s option” (Dorsey App. at 172-73 (emphasis added)). Because the notice mailed 

to individual class members did not tell them this, however, Western Union and the 

named Plaintiffs further agreed to provide this information on the settlement website 

under the heading “Frequently Asked Questions” and to inform all call center agents to 

clarify this information for putative class members who called with questions. Dorsey 

claims, however, that class counsel dawdled, failing to post this correction on the website 

 

18 Neither Rule 23(c)(2) nor 23(e) expressly requires notice to class members regarding 

how and when they can object to a class settlement. Nevertheless, failure to tell class 

members of their right to object could arguably deprive them of the due process 

requirements of notice and an opportunity to be heard. See Rutter & Wilbanks Corp. v. 

Shell Oil Co., 314 F.3d 1180, 1187 (10th Cir. 2002) (noting, in class action, that “[t]he 

fundamental requirement of due process is the opportunity to be heard at a meaningful 

time and in a meaningful manner”) (internal quotation marks omitted).

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in a timely manner and never correcting the Spanish-language version of the website. 

Even so, we cannot conclude that this notice problem materially affected class members’ 

exercise of their right to file objections. We are satisfied that the notices mailed to class 

members “were sufficient to flush out any objections that might arise to the fairness of 

the settlement.” DeJulius, 429 F.3d at 946. And there is no evidence suggesting that 

anyone who wanted to object was chilled from doing so. Dorsey’s argument, therefore, 

is too speculative. 

 d. Email notice was inadequate 

 Dorsey received mailed notice of the class action and proposed settlement, but he 

claims that he also should have received this notice by email because he gave Western 

Union his email address at the time he sent his failed wire transfer. Yet Dorsey claims 

that he did not receive any email notice of the class action and settlement. This, Dorsey 

suggests, means there was something wrong with the email notice that the class 

administrator sent to the entire class. But the fact that one class member—Dorsey—did 

not receive one version of the notice that the plan was designed to give does not, by itself, 

establish that the entire notice plan was inadequate. See DeJulius, 429 F.3d at 946-47. 

And even if there were deficiencies in sending notice via emails, those emails only 

supplemented the mailed notice. And the mailed notice was sufficient to provide “the 

best notice that is practicable under the circumstances,” Fed. R. Civ. P. 23(b)(2)(B). Cf. 

In re Integra Res., 262 F.3d at 1109 (holding in that case that mailing notice to “all class 

members whose names were then known or could be identified through reasonable 

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effort” satisfied due process). 

B. District court’s exercise of its independent judgment 

 Finally, both Nelson and Dorsey argue that the district court failed to exercise its 

independent judgment when it certified the class and approved the settlement. In support 

of their argument, Nelson and Dorsey first point to the fact that the district court, in 

preliminarily and finally certifying the class and approving the settlement, adopted 

verbatim orders drafted by the named Plaintiffs and Western Union. This practice is not 

favored; it can result in an overly- or underly-inclusive ruling and can create the 

perception of a lack of judicial independence which harms the judiciary. Nonetheless, 

the fact that the district court adopted the order drafted by the parties, alone, does not 

establish that the district court failed to exercise its judgment independently. See 

Anderson v. Bessemer City, 470 U.S. 564, 572 (1985). When, as here, the district court 

adopts verbatim a proposed order resolving matters left to the court’s discretion, this 

court must satisfy itself that the district judge actually “exercised his discretion” by 

considering the factors relevant to “that exercise.” N. Eng. Health Care Employees 

Pension Fund, 512 F.3d at 1290. We are satisfied that the district court, in certifying the 

class and approving the class settlement, considered the relevant factors and actually 

exercised its discretion independently. See id. 

Nelson and Dorsey next contend that the district court failed to exercise its 

independent judgment in denying their objections to the class settlement. The order 

approving the settlement, which was proposed and drafted by the named parties, stated 

only that “[t]he Court has considered the objections to the Settlement and hereby 

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overrules them.” (Dorsey App. at 1594 ¶ 10.) But at the fairness hearing, after hearing 

argument from the named Plaintiffs, Western Union and Objector Nelson, the district 

court briefly addressed and rejected Nelson’s objections. That is sufficient for this court 

to conclude that the district court independently exercised its judgment in denying 

Nelson’s objections.19

Unlike Nelson, whose attorney appeared at the fairness hearing, Dorsey, acting pro 

se, submitted only written objections. The district court, at the fairness hearing, 

acknowledged receiving Dorsey’s written objections, “overruled” written objections 

raised by several other objectors “for the reasons stated in the plaintiffs’ memoranda,” 

and then overruled Dorsey’s objections without further comment. (Dorsey App. at 689, 

706-07, 709.) This practice is also not favored. Nevertheless, we upheld a similar 

disposition of objections to a class settlement in In re Integra Realty Resources, Inc., 

noting that, “while more extensive explanation by the district court may have been 

helpful to our review, we will not overturn the district court’s decision on the basis of a 

‘merely formal’ deficiency as long as the decision finds support in the record.” 354 F.3d 

at 1268. In Integra Realty, the district court had before it the settling parties’ memoranda 

supporting the settlement and the written objections to the settlement, and the court heard 

argument before rejecting the objections; “[t]he record thus indicates that the district 

 

19 The district court, in rejecting Nelson’s objections, mistakenly stated that it had 

previously dismissed the class’s conversion claims. That does not prevent us from 

concluding that the district court independently exercised its discretion in denying 

Nelson’s objection. Nor can we conclude that that mistake adversely affected the district 

court’s certification of the class and approval of the class settlement. 

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court was aware of all the issues that appellants now argue should have been considered 

when determining the settlement’s fairness.” Id. at 1268-69. For similar reasons, we 

conclude that the district court exercised its independent judgment in this case when it 

denied Dorsey’s written objections.20 

CONCLUSION

 For the foregoing reasons, we AFFIRM the district court’s decisions to certify the 

class and approve the class settlement. 

 

20 In reaching this conclusion, we distinguish New England Health Care Employees 

Pension Fund v. Woodruff, 512 F.3d 1283 (10th Cir. 2008). In that case, the district 

court overruled objections to a class settlement “based on the reasons stated, arguments 

advanced, and authorities cited by [the defendant] in its reply.” Id. at 1290 (internal 

quotation marks, alteration omitted). In that case, this court concluded that the district 

court’s ruling was “insufficient,” holding that, “[w]hen it comes to page after page of 

complex legal argument, we need to know what path the district court followed.” Id. In 

that case, the defendant’s reply to which the district court referred was twenty-one pages 

long with 139 pages of exhibits and was only “argument . . . not intended to represent any 

findings or conclusions for an appellate court to review.” Id. Here, on the other hand, 

the named Plaintiffs’ memoranda opposing all of the objections to the settlement 

dedicated five discrete pages to Dorsey’s objections, so we can much more easily 

determine the reasons the district court rejected Dorsey’s objections. 

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