                                                                                  FILED
                                                                      United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                      Tenth Circuit

                                 FOR THE TENTH CIRCUIT                       August 14, 2018
                             _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
MILTON HARPER; RONNIE
STEVENSON; JONATHAN MITCHELL,
individuals, on behalf of themselves, and
on behalf of all persons similarly situated,

       Plaintiffs - Appellees,

v.                                                         No.  17-4008
                                                   (D.C. No.  2:16-CV-00906-DB)
C.R. ENGLAND, INC.,  a corporation,                           (D. Utah)

       Defendant - Appellee. 

------------------------------

WILLIAM H. GRADIE; SANG KIM;
WILLIAM BORSCHOWA; TONY RUIZ;
ROMI FRANCESCU,

       Objectors - Appellants. 
                        _________________________________

                                 ORDER AND JUDGMENT*
                             _________________________________

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. 
                  _________________________________

        A group of current and former truck drivers brought this wage-and-hour class

action against C.R. England, Inc. (CRE)––a national provider of transportation

services—contesting the legality of its piece-rate payment system and training

        *
         This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel.  It may be cited, however, for
its persuasive value consistent with Fed.  R. App.  P. 32.1 and 10th Cir.  R. 32.1. 
programs.  The parties reached a settlement agreement, which the district court (after

certifying the class) approved over some class members’ objections.  Those class

members appealed, contesting class certification and challenging the settlement’s

contents.  Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the district

court’s class certification and remand for further proceedings.  Having no certified

class, we don’t reach the merits of the settlement. 

                                   BACKGROUND

      This case involves two class actions.  We lay out the procedural history of each

before turning to the underlying claims.  Then we address the settlement agreement

and the facts that brought the case to us. 

I. Procedural History

      A. Harper v. CRE

      In February 2016, Milton Harper sued CRE in California state court on behalf

of himself and a putative class.  In April 2016, Harper filed a First Amended

Complaint, adding Ronnie Stevenson and Jonathan Mitchell as named plaintiffs

(collectively, the Plaintiffs), and adding a claim.  After this, CRE and the Plaintiffs

agreed to enter into mediation. 

      In July 2016, the Plaintiffs filed a Second Amended Complaint, adding ten

claims.  This final complaint included fourteen claims: (1) unlawful, unfair, and

deceptive business practices; (2) failure to pay minimum wages; (3) failure to pay

overtime wages; (4) failure to provide accurate, itemized wage statements; (5) failure

to maintain copies of accurate, itemized wage statements; (6) failure to reimburse for

                                             2
business expenses; (7) unlawful deductions; (8) failure to provide off-duty meal

periods or to pay meal-period premiums; (9) failure to provide off-duty rest periods

or to pay rest-period premiums; (10) failure to pay wages on time; (11) failure to pay

wages on regularly scheduled paydays; (12) misrepresentation; (13) usury; and (14)

violation of the Private Attorneys General Act, Cal.  Lab.  Code § 2698 (West 2018). 

Claim three and claims five through thirteen weren’t pleaded in the First Amended

Complaint. 

       On August 24, 2016, CRE removed the action from state court to the United

States District Court for the Central District of California under the Class Action

Fairness Act.  CRE filed a Notice of Pendency of Other Actions, informing the

Central District of California that the case involved the same subject matter as four

later-filed wage-and-hour class actions then pending in various other courts. 

       Next, the Plaintiffs and CRE stipulated to transfer the case to the United States

District Court for the District of Utah (the district court). 

       Preparing for mediation, the parties engaged in informal discovery; CRE

provided documents and information related to the Plaintiffs’ claims. 

       On August 19, 2016, CRE and the Plaintiffs engaged in mediation with an

experienced mediator, Gig Kyraciou.  The parties negotiated all day.  And after

Kyraciou made a mediator’s proposal, the parties reached agreement.  On August 30,

2016, the parties notified the court that they planned to settle.  They incorporated the

details in a Joint Stipulation for Preliminary Approval of Class Action Settlement,

filed October 3, 2016. 

                                             3
       The settlement would resolve all the claims asserted in the Harper action, as

well as any other claims arising out of the same facts, allegations, transactions, or

occurrences during the class period.1 This settlement would thus end another action

brought by an unnamed class member, whose claims’ procedural history we turn to

now. 

       B. Gradie v. CRE

       On April 20, 2016 William H. Gradie filed suit against CRE in California state

court on behalf of himself and a putative class.  The complaint alleged ten claims, all

stemming from CRE’s employment practices.  The ten claims were: (1) unlawful

deductions from wages; (2) unpaid minimum and overtime wages; (3)

misrepresentation; (4) failure to provide off-duty meal breaks or premium pay; (5)

failure to provide off-duty rest breaks or premium pay; (6) failure to provide

accurate, itemized wage statements; (7) failure to provide timely wage payments; (8)

usury; (9) unlawful and unfair business practices; and (10) violation of the Private

Attorneys General Act of 2004, Cal.  Lab.  Code § 2698 (West 2018). 

       CRE removed this case to the United States District Court for the Central

District of California; it too was then transferred to the United States District Court

for the District of Utah.  See Gradie v. C.R. England, Inc., No.  2:16-CV-001015-DN,

2017 WL 325201, at *1 (D. Utah Jan. 23, 2017).  On October 11, 2016, after having

reached agreement with the Harper plaintiffs, CRE moved to stay all proceedings in

       1
           The class period ran from March 12, 2014 through October 6, 2016. 


                                            4
the Gradie action.  The district court agreed, staying the case pending the exhaustion

of all appellate rights in Harper. 

II.  The Class Claims

       By the time of the settlement, the Harper and Gradie claims mostly

overlapped.  The claims belong to two categories: the wage claims and the contract

claims.  We briefly discuss each in turn. 

       A. The Wage Claims

       Both the Harper and Gradie complaints contest the legality of CRE’s piece-

rate compensation method.  Under this system, drivers were paid a per-mile rate.  But,

naturally, drivers did things other than just drive: “class members were also required

to spend a substantial number of hours engaged in non-driving tasks such as

completing paperwork, pre and post trip inspections, and waiting to pick up trucks or

to load and unload freight.”  Objectors’ Opening Br.  at 8.  So, the Harper and Gradie

actions claim, the drivers weren’t paid for non-driving time, which allegedly violated

a number of California labor codes requiring the payment of minimum and overtime

wages, the provision of accurate, timely wage statements, and the provision of meal

and rest periods.  The drivers demanded compensation for the unpaid time, premiums

for unpaid meal and rest periods, and applicable penalties under various California

statutes. 

       B. The Contract Claims

       The original Harper complaint and the First Amended Complaint didn’t

include the contract-claim allegations.  But the Second Amended Complaint, filed on

                                           5
July 11, 2016, did.  The Gradie complaint, filed April 20, 2016, contained these

claims from the beginning. 

         This second set of claims arose from the Education and Employment Contract

that the Harper and Gradie plaintiffs claim some drivers signed.  The drivers alleged

that CRE forced some drivers to sign the contract, which, they argued, illegally

charged them for training costs and had an illegal liquidated-damages clause and a

usurious interest rate.  The drivers sought compensation for the illegally charged

business expenses. 

III.      The Settlement

         Under the proposed settlement agreement, CRE agreed to make a payment of

$2,350,000 to resolve all of the claims asserted in the Harper action, as well as any

other claims arising out of the same facts, allegations, transactions, or occurrences

during the class period.  This covered the Gradie claims.  The joint stipulation for

preliminary approval also included the option for CRE to make a payment to class

members under Cal.  Lab.  Code § 226.2(b), which gave violators of California’s

minimum-wage and rest-period obligations the option of making payments to those

impacted in return for an affirmative defense against liability.  Under the statute, the

defense had to be perfected by December 15, 2016.  Cal.  Lab.  Code § 226.2(b) (West

2018). 

         As part of the proposed settlement agreement, the Plaintiffs and CRE provided

the district court with (1) a proposed Class Notice; (2) a proposed Order Granting

Preliminary Approval of Class Settlement; and (3) a proposed Order Confirming

                                           6
Certification of the Class Action for Settlement Purposes, Granting Final Approval of

the Class Action Settlement, and Entering Final Judgment. 

       On October 6, 2016, the district court issued a preliminary approval order

certifying the class for purposes of settlement under Rule 23(b)(3).  See Fed.  R. Civ. 

P. 23(b)(3) (allowing class certification when questions of law or fact common to

class members predominate and a class action is superior to other available methods). 

The order also established requirements for objection.  It expressly provided that “[a]

Class Member who does not serve a written objection in the manner and by the

deadline specified above will be deemed to have waived any objection and will be

precluded from making any objection to the Settlement.”  Appellants’ App.  vol.  2 at

479. 

       On October 14, 2016, the settlement administrator mailed a class notice to

known class members.  The notice informed class members about their settlement

options.  They could choose to (1) “[d]o nothing” and stay in the class, (2) “[s]ubmit a

written request for exclusion from the Settlement” (and therefore retain the right to

act individually), (3) “[o]bject” and “[w]rite to the Court and explain any concerns,”

or (4) attend the court’s planned fairness hearing to “[r]equest to speak to the Court

about the fairness of the Settlement.”  Appellants’ App.  vol.  4 at 780.  Under the

header “CRITICAL DATES,” the notice informed potential class members that

November 14, 2016 was “[t]he last date to submit a written request to opt out of the

Settlement and retain your rights to bring your own claim” as well as “[t]he last date

to mail any written objections to the Settlement.”  Id. It further notified them that

                                            7
November 29, 2016, was “[t]he date of the Court hearing [(the fairness hearing)] to

determine whether the proposed Settlement is fair, reasonable and adequate and

should be approved by the Court.”  Id. The notice also briefly described the

background of the case, summarized the proposed settlement, described the class

members’ rights, and discussed the settlement’s effect. 

      Some class members, including Gradie, timely opted out of the settlement.  On

November 14, 2016, Gradie, Sang Kim, William Borschowa, Tony Ruiz, and Romi

Francescu (collectively, the Objectors) filed a motion to intervene in the case.2 The

next day—one day past the deadline to do so—the Objectors filed their objections to

the proposed settlement. 

      As planned, on November 29, the court held the fairness hearing.  The

Plaintiffs, the Objectors, and CRE were all represented.  The court heard the

Objectors’ concerns about the settlement’s fairness, and also heard CRE’s and the

Plaintiffs’ defense of the settlement. 

      On December 12, 2016, the district court issued a memorandum and order

overruling the Objectors’ objections, granting approval of the class settlement, and

awarding attorney’s fees.  Harper v. C.R. England, Inc., No.  2:16-CV-906-DB, 2016

WL 7190560, at *4 (D. Utah Dec. 12, 2016).  In that order, the district court


      2
       The district court later denied that motion for failing “to meet the
requirements of either intervention as of right or permissive intervention.”  Harper v.
C.R. England, Inc., No.  2:16-CV-906-DB, 2016 WL 7190560, at *2 (D. Utah Dec.
12, 2016).  The failed intervention isn’t at issue on appeal. 


                                           8
determined that the objections weren’t timely.  Id. As it noted, “[n]evertheless, the

court heard argument from the [Objectors] at the November 29th hearing” and

“considered each of the[ir] arguments.”  Id. Analyzing those objections, the district

court found them meritless, determining that the settlement was fair, reasonable, and

adequate.  Id. at *3–4.  In doing so, the court considered (1) whether the settlement

was fairly and honestly negotiated; (2) whether serious questions of law and fact

existed that would place the outcome of the litigation in doubt; (3) whether the value

of an immediate recovery outweighed the possibility of future relief after protracted

and expensive litigation; and (4) whether the parties adjudged that the settlement is

fair and reasonable.  See id. at *3; Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322,

324 (10th Cir.  1984) (laying out the four-factor test).  The court concluded that each

factor was met.  Harper, 2016 WL 7190560, at *3.  The court also awarded attorney’s

fees to the class counsel.  Id. at *4. 

       In a later order, the district court confirmed the certification of the class for

settlement purposes, granted final approval of the class-action settlement, and entered

final judgment.3 In its order, the court concluded that, for settlement purposes only,

the class had satisfied Rules 23(a) and 23(b)(3).  And the district court noted that, for

classes certified solely to effectuate a settlement, the court needn’t address Rule




       3
        By this time, CRE could no longer take advantage of the safe-harbor
affirmative defense. 


                                             9
23(b)(3)’s manageability requirement.  The Objectors timely appealed, challenging

the class certification and the settlement’s fairness. 

                                     DISCUSSION

       We first address CRE’s and the Plaintiffs’ arguments that Gradie specifically,

and the Objectors generally, lack standing to bring this appeal.  Then we turn to the

Objectors’ challenges to class certification. 

I. Standing

       We have an independent obligation to examine our own jurisdiction, and

“standing ‘is perhaps the most important of [the jurisdictional] doctrines.’”  Integra

Realty Res.,  Inc. v. Fidelity Capital Appreciation Fund, 262 F.3d 1089, 1101 (10th

Cir.  2001) (Integra I) (alteration in original) (quoting FW/PBS, Inc. v. City of Dallas,

493 U.S. 215, 231 (1990)).  We review standing de novo.  Colorado Cross-Disability

Coal.  v. Abercrombie & Fitch Co., 765 F.3d 1205, 1210 (10th Cir.  2014). 

       A. Gradie’s Standing

       CRE and the Plaintiffs claim that because Gradie opted out of the settlement,

he lacks standing to object to it. 

       They’re right.  Opted-out class members lack standing to object to a settlement. 

Integra I, 262 F.3d at 1102 (“[N]on-settling defendants generally have no standing to

complain about a settlement, since they are not members of the settling class.” 

(alteration in original) (quoting Transamerican Refining Corp. v. Dravo Corp., 952

F.2d 898, 900 (5th Cir.  1992))).  We do recognize an exception to this general rule

when a nonsettling party demonstrates that it will be prejudiced by a settlement.  Id.

                                            10
But Gradie hasn’t alleged prejudice, and so we won’t address it.  Gradie’s lack of

standing doesn’t impact the remaining Objectors (Kim, Borschowa, Ruiz, and

Francescu), whose appellate rights we turn to next.4

II.  The Objectors’ Right to Appeal

      CRE and the Plaintiffs argue that because the Objectors filed their objections

one-day late, they can’t appeal the settlement agreement. 

      “[O]nly parties to a lawsuit, or those that properly become parties, may appeal

an adverse judgment.”  Devlin v. Scardelletti, 536 U.S. 1, 7 (2002) (quoting Marino v.

Ortiz, 484 U.S. 301, 304 (1988) (per curiam)).  And as the Supreme Court explained

in Devlin, nonnamed class members who objected to the approval of a class-action

settlement at the fairness hearing are parties for purposes of appeal without

intervening in the case.  Id. at 14.  In Integra Realty Resources, Inc. v. Fidelity Capital

Appreciation Fund, 354 F.3d 1246, 1257–58 (10th Cir.  2004) (Integra Realty II), we

determined that objectors who file untimely or procedurally deficient objections

haven’t properly objected at the fairness hearing, and so don’t qualify for appellate

rights under Devlin. 

      Arguing that the Objectors have no right to bring this appeal, CRE and the

Plaintiffs rely on Integra Realty II for the proposition that a late objection defeats the

delinquent Objectors’ standing.  True, in Integra Realty II, we denied appellate rights


      4
       We will continue to use “Objectors” to refer to Kim, Borschowa, Ruiz, and
Francescu. 


                                            11
to an individual who hadn’t complied with the district court’s objection requirements. 

354 F.3d at 1257–58 (concluding that objector who did “not meet the district court’s

stated requirements for objecting at the fairness hearing” didn’t have a right to

appeal); see also In re: Motor Fuel Temperature Sales Practices Litig.,  872 F.3d

1094, 1112 (10th Cir.  2017) (declining to address objections to settlement agreement

when the objecting party “failed to comply with the district court’s notice

requirements”). 

       But CRE and the Plaintiffs ignore an important part of Integra Realty II: We

separated the question of whether an untimely objector can appeal from that

objector’s Article III standing to proceed.  354 F.3d at 1256 (“[W]hether a class

member can appeal from a district court’s approval of a class settlement is not [a

question] of Article III jurisdiction or of prudential standing . . . .”).  So, despite the

labeling by the parties, we see no standing concern here—the issue is better described

“in terms of ‘the right to appeal.’”  Id. (quoting Devlin, 536 U.S. at 7). 

       “Rather, the issue is ‘whether [the appellants] should be considered a “party”

for the purposes of appealing the approval of the settlement.’”  Id. (alteration in

original) (quoting Devlin, 536 U.S. at 7). “ The label ‘party’ does not indicate an

absolute characteristic, but rather a conclusion about the applicability of various

procedural rules that may differ based on context.”  Id. (quoting Devlin, 536 U.S. at

10).  So whether the Objectors are properly a party to the settlement is an issue of

discretion—not jurisdiction. 



                                             12
         We decline to exercise that discretion against the Objectors when they filed

their objection only one day late,5 and when the district court (despite concluding that

the Objectors had filed out of time) considered and addressed the Objectors’ claims,

creating a clear appellate record.  Harper, 2016 WL 7190560, at *4; see also Tennille

v. W. Union Co., 785 F.3d 422, 429–30 (10th Cir.  2015) (exercising discretion to

consider arguments on appeal that “were before the district court in some form”). 

         Having concluded that the Objectors have the right to appeal, we now turn to

the question of class certification. 

III.      Class Certification

         We review de novo whether a district court has applied the correct standard in

making its Rule 23 determination and we review for an abuse of discretion the merits

of that determination.  DG ex rel.  Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th

Cir.  2010) (quoting Vallario v. Vandehey, 554 F.3d 1259, 1264 (10th Cir.  2009)). 

“[A]t the class certification stage a district court must generally accept the

substantive, non-conclusory allegations of the complaint as true.”  Vallario, 554 F.3d

at 1265. 

         The Objectors claim that the district court erred in certifying the settlement

class. 

         5
        The Class Action Notice identified November 14, 2016 as the last day to mail
any written objection.  The Objectors electronically filed their objections the next day,
November 15.  So, practically speaking, it’s likely the court had access to the
document earlier than it would have had the Objectors timely mailed it.  We see no
need to deny court access on such a razor-thin difference. 


                                             13
       Rules 23(a) and 23(b) “set forth clear, stringent guidelines for certification of a

class action.”  Rex v. Owens ex rel.  Okla., 585 F.2d 432, 435 (10th Cir.  1978). 

“[C]ertification is proper only if ‘the trial court is satisfied, after a rigorous analysis,

that the prerequisites of Rule 23(a) have been satisfied.’”  Comcast Corp. v. Behrend,

569 U.S. 27, 33 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–

51 (2011)); Shook v. El Paso County, 386 F.3d 963, 971 (10th Cir.  2004) (The court

must “carefully apply the requirements of Rule 23(a).” ( quoting Gen. Tel.  Co. of the

S.W. v. Falcon, 457 U.S. 147, 160 (1982))). 

       Under Rule 23(a), “[o]ne or more members of a class may sue or be sued as

representative parties on behalf of all members only if”:

       (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).  These requirements are more succinctly dubbed numerosity,

commonality, typicality, and fair and adequate representation. 

       When the court determines that a potential class meets the threshold

requirements, “it must then examine whether the action falls within one of three

categories of suits set forth in Rule 23(b).”  Adamson v. Bowen, 855 F.2d 668, 675

(10th Cir.  1988); Fed.  R. Civ.  P. 23(b).  The third category, a Rule 23(b)(3) class––

used here––can be certified only when “the questions of law or fact common to class

members predominate over any questions affecting only individual members” and

                                             14
when “a class action is superior to other available methods for fairly and efficiently

adjudicating the controversy.”  Fed.  R. Civ.  P. 23(b)(3).  Rule 23(b)(3) then lays out

four matters to consider before certifying such a class:

      (A) the class members’ interests in individually controlling the
          prosecution or defense of separate actions;
      (B) the extent and nature of any litigation concerning the controversy
          already begun by or against class members;
      (C) the desirability or undesirability of concentrating the litigation of the
          claims in the particular forum; and
      (D) the likely difficulties in managing a class action. 

Id.

      As the district court noted, when certifying a class for settlement purposes,

Rule 23(b)(3)(D)––whether the proposed class would present intractable management

problems—is irrelevant.  See Amchem Prods.,  Inc. v. Windsor, 521 U.S. 591, 620

(1997). “ But other specifications of [Rules 23(a) and (b)] . . .  demand undiluted, even

heightened, attention in the settlement context.  Such attention is of vital importance,

for a court asked to certify a settlement class will lack the opportunity, present when

a case is litigated, to adjust the class, informed by the proceedings as they unfold.” 

Id.; see also id. at 621 (“The safeguards provided by the Rule 23(a) and (b) class-

qualifying criteria, we emphasize, are not impractical impediments—checks shorn of

utility—in the settlement-class context.”). 

      So, we ask, did the district court abuse its discretion by determining that the

proposed class satisfied Rule 23?  The Objectors argue that it did, focusing on Rule

23(a)(3)’s typicality requirement.  They claim that the Plaintiffs weren’t party to any

of the contract claims—those arising out of the Education and Employment

                                           15
Agreement.  The Objectors claim that Rule 23(a)’s typicality requirement isn’t met

because the Plaintiffs “did not assert any claims arising out of this Education and

Employment Agreement in their original or First Amended Complaint.”  Objectors’

Opening Br.  at 47.  Instead, the Objectors argue that the Plaintiffs added these claims

“by joint agreement of the parties in preparation for their settlement.”  Id.. And they

claim that the Plaintiffs never submitted any “declaration or other admissible

evidence” to show that the Plaintiffs actually “had viable claims” under the contract

theories of liability.  Id.

       The Objectors also point out that “the district court made no finding whatever

as to whether the Harper Plaintiffs met the[] requirements of Rule 23.”  Id. at 49. 

Thus, the Objectors argue, “the court erred in certifying a settlement class which fails

to comply with” Rule 23’s requirements.  Id.

       But the district court left little analysis by which we can review its

determination of the appropriateness of the proposed class.  In its preliminary order

certifying the class, the district court briefly outlined the contours of the potential

class but had only this to say about class certification: “The Court finds, for

settlement purposes only, that the requirements of Federal Rules of Civil Procedure

23(a) and 23(b)(3) are satisfied, with the exception of the manageability requirement

of Rule 23(b)(3), which the Court need not address for purposes of settlement. ”6


       6
        The language in the district court’s preliminary order on class-certification is
identical to the language provided by the Plaintiffs and CRE in their proposed order. 
That proposed language read: “The Court finds, for settlement purposes only, that the

                                            16
Appellants’ App.  vol.  2 at 477.  And its discussion of the appropriateness of class

certification in the final order wasn’t much longer, stating:

      The Court finds, for settlement purposes only, that the Class satisfies
      the applicable standards for certification under Federal Rules 23(a) and
      23(b)(3).  Accordingly, solely for purposes of effectuating this
      Settlement, this Court has certified a class of all Class Members. 
      Because the Rule 23 class is being certified here for settlement purposes
      only, the Court need not (and does not) address the manageability
      requirement of Rule 23(b)(3).  See Amchem Products, Inc. v. Windsor,
      521 U.S. 591 (1997).7

Appellants’ App.  vol.  7 at 1648.  In its analysis, the district court didn’t discuss

Rule 23(a)’s requirements of numerosity, commonality, typicality, or fair and




requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3) are satisfied,
with the exception of the manageability requirement of Rule 23(b)(3), which the
Court need not address for purposes of settlement.”  Appellants’ App.  vol.  2 at 456. 
      7
         The language in the district court’s class-certification order mirrors the
language provided by the Plaintiffs and CRE in their proposed order.  That language
reads:
       The Court finds, for settlement purposes only, that the Class satisfies
       the applicable standards for certification under Federal Rules 23(a) and
       23(b)(3).  Accordingly, solely for purposes of effectuating this
       Settlement, this Court has certified a class of all Class Members. 
       Because the Rule 23 class is being certified here for settlement purposes
       only, the Court need not (and does not) address the manageability
       requirement of Rule 23(b)(3).  See Amchem Products, Inc. v. Windsor,
       521 U.S. 591 (1997). 
Appellants’ App.  vol.  2 at 462. 
       The district court’s language is identical––containing the same “(and does
not)” parenthetical and the Amchem citation without a pincite.  Compare id. (proposed
order confirming certification of class action for settlement purposes), with
Appellants’ App.  vol.  7 at 1648 (district court order confirming certification of class
action for settlement purposes). 


                                           17
adequate representation.  Indeed the only mention of any Rule 23 classification

comes when the district court explains what criterion it didn’t consider. 

       Brevity may be the soul of wit, but it isn’t the soul of rigorous analysis.  Such a

short discussion of class certification is incompatible with the district court’s

obligation for thorough examination.  See Shook, 386 F.3d at 972 (reversing a denial

of class certification when “[t]he district court erred by not specifically addressing

the traditional Rule 23 factors in denying class certification”).  And it leaves us

without a sufficient record to review.  We can’t determine whether the district court

abused its discretion when the district court didn’t explain how or why it exercised its

discretion.  Cf.  Vallario, 554 F.3d at 1264 (“As long as the district court applies the

proper Rule 23 standard, [the Court of Appeals] will defer to its class certification

ruling . . . .” ( emphasis added)). 

       As we have cautioned, “the appropriateness of class certification lies at the

heart of” class actions.  Integra Realty II, 354 F.3d at 1261. “ Class action settlements

are premised upon the validity of the underlying class certification.”  Id.; see also

Falcon, 457 U.S. at 161 (Class actions “may only be certified if the trial court is

satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been

satisfied.”).  Thus we vacate and remand for the district court to more meaningfully

explain its bases for class certification.8



       8
         Because we conclude that the district court’s analysis regarding class
certification was insufficient, we needn’t address the Objectors’ other challenges to

                                              18
      In doing so, we note that we have taken no position on the appropriateness of

the suggested class or the settlement agreement.  Rather, we hold only that the district

court fell short of its obligation to analyze, independently and rigorously, the

proposed class’s suitability.  See Shook, 386 F.3d at 973–74 (remanding when “the

district court’s order has yet to apply fully the Rule 23 framework” but noting that

“[o]n remand, it may well be that the factual and legal concerns” that led to the

court’s initial decision could again warrant that same decision when analyzed with

the correct legal standards); Mukhia v. Holder, 507 F. App’x 824, 830 (10th Cir. 

2013) (remanding for “further explanation” but “tak[ing] no position” on whether the

district court’s conclusion was correct). 

                                   CONCLUSION

      For the above reasons, we vacate and remand for further proceedings

consistent with this order. 


                                             Entered for the Court


                                             Gregory A. Phillips
                                             Circuit Judge




the settlement.  Without a class to reference, we can’t review whether the settlement
is fair. 

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