New Englad Health Care Employees Pension Fund v. Woodruff

PAUL KELLY, JR., Circuit Judge. Defendants-Appellants Joseph P. Nac-chio and Robert S. Woodruff, the former Chief Executive Officer and Chief Financial Officer of Qwest Communications International, Inc. (“Qwest”), respectively, appeal the district court’s approval of a class action settlement in a securities fraud case. The settlement was negotiated between the Plaintiff-Appellee class, including lead plaintiffs New England Health Care Employees’ Pension Fund, Clifford Mosher, Tejinder Singh, and Sotpal Singh (collectively “Plaintiffs”), and Defendant Appellee Qwest, including eleven of its officers. Mr. Nacchio and Mr. Woodruff were not included in the approved settlement. Our jurisdiction arises under 28 U.S.C. § 1291 and we remand to the district court so that it might make appropriate findings and conclusions with respect to Mr. Nac-chio and Mr. Woodruffs objections to the settlement. Background This ease began on July 27, 2001 with a class action complaint alleging various federal securities laws violations by employees of Qwest. Aplt. App. at 41. Several other complaints were subsequently filed, and the operative complaint is Plaintiffs’ fifth amended complaint filed on February 6, 2004 which includes fourteen former Qwest employees and Arthur Andersen accountants as defendants (Arthur Anderson LLP joins Qwest’s brief and contributed to the settlement). Id. at 87, 179-385; Aplt. Br. at 4; Aplee. Br. at 2 n. 1. After “difficult” and “arms’ length” negotiations with mediators, Aplt.App. at 710, Qwest and eleven of its officers came to a settlement agreement with the Plaintiff class, and Plaintiffs filed an unopposed motion for preliminary approval of a stipulation for partial settlement on November 23, 2005. Id. at 153, 1057-1109; Pl. Br. at 3-4. Mr. Nacchio and Mr. Woodruff were not included in the settlement negotiations but were informed that they would be included if they would pay personally into any settlement fund. Aplt.App. at 880-81. Plaintiffs believed that Mr. Nacchio and Mr. Woodruff were especially culpable and should not be allowed to join a settlement in which only Qwest would pay. Id. Mr. Nacchio and Mr. Woodruff were not so inclined and therefore were not included in the final settlement. Id. at 881. Both Mr. Nacchio and Mr. Woodruff have agreements with Qwest that require Qwest to indemnify them for any reasonable amounts they might pay in settlement of a lawsuit against them as former directors or officers. Id. at 554, 655-56; Aplt. Br. at 7. The settlement includes three provisions that are at issue in this appeal. Aplt. Br. at 7-8. The first, as required by Section 21D of the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4, bars contribution claims between and among the Released Persons and Non-Settling Defendants (defined to include Mr. Nacchio and Mr. Woodruff) “based on, relating to, or arising out of the Released Claims.” Aplt.App. at 1009. This is the Reform Act Bar.1 See id. [1287] The second states, in relevant part, that “the Non-Settling Defendants .. . are ... permanently barred, enjoined, and restrained from commencing, prosecuting, or asserting any claim, if any, however styled, whether for indemnification, contribution, or otherwise and whether arising under state, federal, or common law, against the Released Persons based on, arising out of, or relating to the Released Claims.” Id. This is the Complete Bar. See id. at 1010. The third provision includes two separate provisions that are grouped and addressed together as the Contractual Provisions. Id. at 1010-11; Aplee Br. at 12. The first states that “the Class will not settle any claim or judgment against a Non-Settling Defendant without obtaining from the Non-Settling Defendant the release of any and all claims the Non-Settling Defendant may have against any of the Released Persons based on, arising out of, relating to, or in connection with the Released Claims or the subject matter thereof.” Aplt.App. at 1011. The second orders that “to the extent (but only to the extent) not covered by the Reform Act Bar Order and/or the Complete Bar Order, the Lead Plaintiffs, on behalf of themselves and the Class, further agree that they will reduce or credit any settlement or judgment (up to the amount of such settlement or judgment) they may obtain against a Non-Settling Defendant by an amount equal to the amount of any settlement or final, non-appealable judgment that a Non-Settling Defendant may obtain against any of the Released Persons based on, arising out of, relating to, or in connection with the Released Claims or the subject matter thereof.” Id. at 1010. The district court preliminarily approved the partial settlement on January 5, 2006, id. at 156, and, after a motion by Plaintiffs and briefing by the parties, a hearing on final approval of the settlement was held on May 19, 2006. Aplt.App. at 934-94. Mr. Nacchio and Mr. Woodruff objected to the settlement on several grounds. Id. at 952-58. All parties were heard at this hearing. Id. at 934-94. On September 29, 2006, the district court entered its Partial Final Judgment and Order of Partial Dismissal with Prejudice (“PFJ”), overruling Mr. Nacchio and Mr. Woodruffs objections “[bjased on the reasons stated, arguments advanced, and authorities cited by Qwest in its reply.” Id. at 173, 1004. The district court held that the settlement was “fair, reasonable, and adequate” to the extent Fed.R.Civ.P. 23(e)(1)(C) applies to Mr. Nacchio and Mr. Woodruff. Id. at 1005. The district court entered its final Judgment on October 2, 2006. Aplt.App. at 174, 1044.2 Mr. Nac-chio and Mr. Woodruffs appeal followed. Id. at 178, 1051. Discussion Mr. Nacchio and Mr. Woodruff attack the district court’s approval of the settlement on several grounds, but we need only address whether they have standing to challenge the settlement and whether the district court provided sufficient findings and conclusions pursuant to the PFJ for appellate review. We hold that Mr. Nac-chio and Mr. Woodruff have standing and remand the case for the district court to provide a more extensive explanation for its decision. [1288] I. Standing It is well established that any party, including the court sua sponte, can raise the issue of standing for the first time at any stage of the litigation, including on appeal. Rector v. City and County of Denver, 348 F.3d 935, 942 (10th Cir.2003). Qwest did not object to Mr. Nac-chio and Mr. Woodruffs standing in the district court but now challenge it. Aplee. Br. at 25 n. 11. “Whether a plaintiff has standing is a legal question, which we review de novo.” Lippoldt v. Cole, 468 F.3d 1204, 1216 (10th Cir.2006). Federal courts may only hear actual “Cases” or “Controversies,” U.S. Const, art. Ill, § 2, cl.l, and a plaintiff bears the burden of proving standing. See Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir.2007). A plaintiff must prove (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. In order to have standing to challenge a settlement, non-settling parties must demonstrate that they have been prejudiced by the settlement. In re Integra Realty Res., Inc. (In re Integra I), 262 F.3d 1089, 1102 (10th Cir.2001). “Plain legal prejudice sufficient to confer standing upon a non-settling litigant in a class action has been found to include any interference with a party’s contract rights or a party’s ability to seek contribution or indemnification.” Id. (quoting Agretti v. ANR Freight Sys., 982 F.2d 242, 247 (7th Cir.1992)) (internal brackets omitted). “A party also suffers plain legal prejudice if the settlement strips the party of a legal claim or cause of action, such as a cross claim or the right to present relevant evidence at trial.” Id. at 1102-03. Qwest argues that Mr. Nacchio and Mr. Woodruff do not have standing to challenge the Contractual Provisions, the Complete Bar, or the Reform Act Bar. See Aplee. Br. at 25-30. First, it argues that the Contractual Provisions simply reflect an agreement in which Plaintiffs will not collect money from Mr. Nacchio and Mr. Woodruff for which Qwest and the other Released Persons are ultimately liable, and that Mr. Nacchio and Mr. Woodruff are not deprived of any claims or legal rights. Id. at 25. Thus, Mr. Nacchio and Mr. Woodruff cannot show they have suffered an “injury in fact.” Id. at 26-27. Similarly, Mr. Nacchio and Mr. Woodruff cannot show an “injury in fact” with respect to “independent claims” (claims related to the same factual situation as the settlement but not based upon liability to Plaintiffs) and claims by “non-parties who were not before the court” that are barred by the Complete Bar and the Reform Act Bar. Id. at 28. Mr. Nacchio and Mr. Woodruff, Qwest argues, have not identified any particular “independent claims” or “non-parties,” the claims of non-parties that would be barred, or how they have standing to represent any non-parties’ interests. Id. Qwest suggests that any “independent claims” could be brought once they actually develop. Id. at 29-30. We disagree. As to the Complete Bar and the Reform Act Bar, clearly, Mr. Nac-chio and Mr. Woodruff have standing to challenge these provisions: both Bar Orders strip Mr. Nacchio and Mr. Woodruff of their contribution and indemnification rights, in addition to certain independent claims. Further, in this case, the Contractual Provisions clearly impact Mr. Nacchio and Mr. Woodruffs contribution and indemnification rights by requiring them to release their claims against Qwest and [1289] then lose the benefit of any possible indemnification in a settlement with Plaintiffs. As fail-safe protection for Qwest, Plaintiffs, in addition to obtaining a release from Mr. Nacchio and Mr. Woodruff, must lower any agreed settlement amount by the indemnity amount Mr. Nacchio and Mr. Woodruff could receive from Qwest, making it impossible for Mr. Nacchio and Mr. Woodruff to receive any indemnification from a settlement with Plaintiffs. Such an arrangement, in addition to the Bar Orders that eliminate certain independent claims and claims against non-parties, essentially strip, and, in any event, palpably interfere with, Mr. Nacchio and Mr. Woodruffs preexisting rights and potential legal claims. They have therefore suffered the requisite plain legal prejudice sufficient to confer standing with respect to both the Contractual Provisions and the Bar Orders. See id:, see also TBG, Inc. v. Bendis, 36 F.3d 916, 929 (10th Cir.1994) (holding that “the court should not purport to bar claims it has no power to bar, even if it thinks that there really are no such claims”). The dissent argues that Mr. Nacchio and Mr. Woodruff do not have standing to challenge the Contractual Provisions because the Contractual Provisions represent “a private contractual agreement” between Plaintiffs and Qwest that does not divest Mr. Nacchio and Mr. Woodruff of any preexisting rights or legal claims. As noted, the Contractual Provisions interfere with Mr. Nacchio and Mr. Woodruffs indemnification claims against Qwest. Our precedent in this regard, upon which the dissent relies, clearly held that “ ‘plain legal prejudice ... has been found to include any interference with a party’s contract rights or a party’s ability to seek contribution or indemnification.’ ” In re Integra I, 262 F.3d at 1102 (quoting Agretti, 982 F.2d at 247) (emphasis added). In In re Integra I, the opt-out parties lacked standing on a claim that immediate payment of settlement amounts would make it more difficult for the opt-out parties to defend their cases. In contrast, the Contractual Provisions here interfere with Mr. Nacchio and Mr. Woodruffs ability to seek indemnification and therefore come within the terms of our precedent.3 [1290] II. The District Court’s Analysis The district court’s approval of a class action settlement is reviewed for an abuse of discretion. Shoels v. Klebold, 375 F.3d 1054, 1060 (10th Cir.2004). “[W]hen-ever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise.” United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005). Mr. Nac-chio and Mr. Woodruff argue that, because the district court approved the challenged provisions merely on the basis of “the reasons stated, arguments advanced, and authorities cited by Qwest in it reply,” without any independent reasoning or analysis, the case must be remanded for an explanation with more particularity. Aplt. Br. at 19. For a slightly different reason, we agree. We recognize that findings of fact and conclusions of law supplied by a party and adopted verbatim by a district court will not automatically render a decision reversible and are held to the normal appellate standards. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 571-72, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). This case, however, is different. The district court in Anderson provided a clear listing of its findings of fact and conclusions of law for appellate review. 557 F.Supp. 412 (D.N.C.1983). The district court here, after summarizing Mr. Nacchio and Mr. Woodruffs contentions and explaining the challenged provisions, simply “overrule[d]” Mr. Nacchio and Mr. Wood-ruffs objections, noting only that the provisions were “either legally required, or [were] legally appropriate” in the case “[b]ased on the reasons stated, arguments advanced, and authorities cited by Qwest in its reply.” Moreover, the district court’s order did not address a supplemental brief filed by Mr. Nacchio and Mr. Woodruff (apparently filed without objection) responding to that reply. Aplt.App. 924-933; Aplt. Reply Br. at 7-8. This is insufficient. When it comes to page after page of complex legal argument, we need to know what path the district court followed. Qwest’s reply contains twenty-one pages of text and eight exhibits spanning one hundred thirty-three pages. ApltApp. at 681-840. The reply is argument to the district court and was not intended to represent any findings or conclusions for an appellate court to review. “We prefer to assess the justification [for a bar order] in the first instance on the basis of concrete facts found by the district court, and with the assistance of the district court’s full consideration and discussion of all of the relevant facts of the instant case and a full discussion of the relevant persuasive authorities and the underlying reasons and policies justifying whatever order the district court ultimate [1291] ly approves.” AAL High Yield Bond Fund v. Deloitte & Touche LLP, 361 F.3d 1305, 1312 (11th Cir.2004). On remand, the district court should illuminate its overruling of Mr. Nacchio and Mr. Wood-ruffs objections. The dissent relies upon In re Integra Realty Res. (Integra II), 354 F.3d 1246, 1268-69 (10th Cir.2004) to suggest that we should decide the case on the current record. Just as we are unwilling to exercise the discretion of the district court, we are unwilling to guess at the path the district court followed in resolving serious legal issues, as opposed to factual matters. We need something to show how, and on what basis, the court analyzed Mr. Nacchio and Mr. Woodruffs objections, in a form other than Qwest’s argument. A remand of this case is the only way to ensure that we get it. The district court here, in addition to addressing any matters it might find appropriate, should determine whether the contribution bar order mandated by the PSLRA is exclusive. Deloitte, 361 F.3d at 1312 n. 14. If the district court determines that the PSLRA bar order is not exclusive, then it should address the persuasive authorities, reasons, and policies for and against the imposition of a broader bar order that would bar claims arising from liability to plaintiffs other than the instant plaintiffs or would bar truly independent claims. Id. The district court should address any particular fact or circumstance relevant to its resolution and state why it is relevant, id., keeping in mind that “the court should not purport to bar claims it has no power to bar, even if it thinks that there really are no such claims.” Bendis, 36 F.3d at 929. Finally, after engaging in this analysis, the district court should determine whether the settlement is “fair, reasonable, and adequate” under Fed.R.Civ.P. 23(e)(2). See Deloitte, 361 F.3d at 1312 n. 14. REMANDED. Footnotes [1] In the Reform Act Bar and the Complete Bar described below, the definitions of the terms “Non-Settling Defendants” and "Released Persons” include parties who were not [1287] before the district court. Aplt.App. at 10 ("Non-Settling Defendant” defined to explicitly include Mr. Nacchio and Mr. Woodruff); id. at 11-12 (definition of "Related Parties”). [2] An Order Granting Qwest's Unopposed Motion 'Seeking Relief from Judgment under Fed.R.Civ.P. 60(a) followed on January 8, 2007, correcting an error in the PFJ that is not being appealed. Aplt.App. at 177, 1052. [3] Notably, the instant matter is readily distinguishable from cases in which courts have held that non-settling defendants failed to demonstrate that the settlement agreements they sought to challenge "legality] prejudice[d]” them. See In re Integra I, 262 F.3d at 1102. Unlike those non-settling defendants whose interests were found to be "merely the loss of some practical or strategic advantage in litigating their case[s],” here the Contractual Provisions effectively vitiate and — at minimum, palpably interfere with — Mr. Nacchio and Mr. Woodruffs legal rights. See id. at 1103 (no legal prejudice demonstrated by non-settling defendants who objected to settlement by alleging, "[a]t most,” that the settlement "placed them at a tactical disadvantage” in the litigation); Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1234 (10th Cir.2004) (narrowly construing the facts in In re Integra I, 262 F.3d at 1101-03); see also Agretti, 982 F.2d at 246 (no legal prejudice demonstrated by non-settling defendant who objected to settlement under which the non-settling defendant: (1) "still ha[d] all of its rights under the contract and may protect those rights through any contractual provisions or legal action”; and (2) was not "precluded in any manner from enforcing its rights”), Mayfield v. Barr, 985 F.2d 1090, 1093 (D.C.Cir.1993) (no legal prejudice demonstrated by non-settling defendant who chose to opt out and, thus, "did not involuntarily lose his individual claim”), and Waller v. Fin. Corp. of Am., 828 F.2d 579, 583-84 (9th Cir.1987) (no legal prejudice demonstrated by non-settling defendant who objected to settlement that did "not cut off or in anyway affect any” of the non-settling defendant's claims), all cited in In re Integra I, 262 F.3d at 1102. The dissent contends that Agretti actually supports a lack of standing and the absence of legal prejudice in this case. We disagree. It bears noting that Agretti did not analyze standing in terms of a loss of indemnification or contribution rights. Rather, the employer [1290] argued that the settlement invalidated its contract with the union, violated its due process rights, was unlawful and against public policy. The court rejected these grounds because the contract was unaffected by the settlement agreement and the employer retained all of its contractual and legal rights because the union only was required to make some “unilateral declarations.” 982 F.2d at 247-48. The settlement here requires Plaintiffs to do more than simply make unilateral declarations. The Contractual Provisions mandate that Plaintiffs must obtain a release of any indemnification claims Mr. Nacchio and Mr. Woodruff have against Qwest in a settlement with them and must reduce the settlement amount by any amount Mr. Nacchio and Mr. Woodruff might still receive as an indemnity from Qwest. This is not a “declaration” but rather an agreement requiring Plaintiffs to interfere with Mr. Nacchio and Mr. Wood-ruff’s ability to seek indemnification from a settlement. See In re Integra I, 262 F.3d at 1102.