                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit

                                                           April 2, 2008
                                     PUBLISH           Elisabeth A. Shumaker
                                                           Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


NEW ENGLAND HEALTH CARE
EMPLOYEES PENSION FUND, on
behalf of itself and all others similarly
situated; CLIFFORD MOSHER, on                     No. 06-1482
behalf of himself and all others                (512 F.3d 1283)
similarly situated; TEJINDER SINGH,
on behalf of himself and all others
similarly situated; SOTPAL SINGH,
on behalf of himself and all others
similarly situated,

      Plaintiffs - Appellees,

v.

ROBERT S. WOODRUFF; JOSEPH P.
NACCHIO,

      Defendants - Appellants,

                 and

QWEST COMMUNICATIONS
INTERNATIONAL, INC.; DRAKE S
TEMPEST; JAMES A. SMITH;
ARTHUR ANDERSEN L.L.P.;
CRAIG D. SLATER; PHILIP F.
ANSCHUTZ,

       Defendants - Appellees.
       APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLORADO
(D.C. No. 01-cv-01451-REB-PAC, 02-cv-00333-REB-PAC, 02-cv-00507-REB-
  PAC, 02-cv–00374-REB-PAC, 02-cv-00755-REB-PAC, 02-cv-00798-REB-
  PAC, 02-cv-00658-REB-PAC, 01-cv-01799-REB-PAC, 01-cv-01472-REB-
  PAC, 01-cv-01527-REB-PAC, 01-cv-01930-REB-PAC, 01-cv-01616-REB-
                      PAC, 01-cv-02083-REB-PAC)


Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.


                                     ORDER


      Appellee Qwest Communications International Inc.’s petition 1 for panel

rehearing is denied by the panel. Judge Briscoe would grant panel rehearing for

the reasons stated in her dissent. Judge Baldock would grant panel rehearing to

hold that once appellants demonstrate plain legal prejudice as to one provision of

the settlement agreement, they have standing to object to all of the agreement’s

provisions. Judge Baldock continues to concur in the result of the panel opinion.

Because neither Judge Briscoe’s dissent, nor Judge Baldock’s view of standing

commands a panel majority, the petition for panel rehearing is denied.

      The suggestion for en banc rehearing was transmitted to all judges of the

court who are in regular active service. No poll on the suggestion was requested



      1
        Lead Plaintiffs-Appellees New England Health Care Employees Pension
Fund, et al. have joined in the petition for panel rehearing and the petition for
rehearing en banc.

                                       -2-
and the suggestion is therefore denied.

                                                Entered for the Court


                                                Paul J. Kelly, Jr.
                                                Circuit Judge




                                          -3-
06-1482, New England Health Care Employees Pension Fund v. Woodruff

BALDOCK, Circuit Judge, dissenting from the denial for panel rehearing.


      In their Response to Appellees’ Petition for Rehearing and Petition for

Rehearing En Banc, Appellants argue that they are not required to demonstrate

standing as to each provision of the partial settlement agreement in challenging

the district court’s Fed. R. Civ. P. 23(e) ruling. The Court’s opinion correctly

concludes Appellants have standing to challenge the district court’s approval of

the partial settlement agreement. In so doing, however, the Court considers

whether Appellants made this showing with respect to each provision of the

settlement Appellants object to on the merits (i.e., the Complete Bar Order, the

Reform Act Bar Order, and the so-called Contractual Provisions). See New

England Health Care Employees Pension Fund v. Woodruff, 512 F.3d 1283, 1288-

89 (10th Cir. Jan. 16, 2008). Because that portion of the opinion is susceptible to

misinterpretation, and because of standing’s fundamental importance, we should

grant the petition to clarify this portion of the Court’s opinion. The denial of the

Petition is otherwise well-taken.

      As Appellants aptly note in their Response to the Petition, once they

demonstrate “plain legal prejudice” under any provision of the partial settlement

agreement, they have standing to challenge the district court’s approval of that

settlement on any ground. By addressing whether the Contractual Provisions

prejudice Appellants, after concluding Appellants made the requisite showing of
plain legal prejudice as to the Complete Bar Order and the Reform Act Bar Order

provisions, I fear the Court’s decision — as presently written — risks muddying

our standing jurisprudence. 1 Lower courts and litigants could easily interpret the

majority opinion’s extended standing discussion to mean Appellants must

demonstrate “plain legal prejudice” as to each provision of the settlement

agreement they wish to challenge on the merits. This is incorrect.

      While no court of appeals has expressly addressed this precise issue —

indeed, few courts have addressed non-settling defendants’ standing to contest

partial settlement agreements at all — core tenets of our standing jurisprudence

demonstrate that Appellants need only demonstrate “plain legal prejudice” under

one provision of the partial settlement agreement to have standing to challenge

the district court’s approval of the agreement. 2 In re Integra Realty Res., Inc.,

      1
          The portion of the majority opinion that concerns me is as follows:

      As to the Complete Bar and the Reform Act Bar, clearly, Mr.
      Nacchio and Mr. Woodruff have standing to challenge these
      provisions . . . . Further, in this case, the Contractual Provisions
      clearly impact Mr. Nacchio and Mr. Woodruff's contribution and
      indemnification rights . . . . They have therefore suffered the
      requisite plain legal prejudice sufficient to confer standing with
      respect to both the Contractual Provisions and the Bar Orders.

New England Health Care Employees Pension Fund, 512 F.3d at 1288-89
(emphasis added).
      2
         See, e.g., Eichenholtz v. Brennan, 52 F.3d 478, 487 (3d Cir. 1995)
(holding that non-settling defendants had standing to challenge the district court’s
approval of the underlying partial settlement agreement after concluding that non-
settling defendants made the requisite “plain legal prejudice” showing as to one

                                         -2-
262 F.3d 1089, 1103 (10th Cir. 2001) (“‘Prejudice’ in this context means ‘plain

legal prejudice,’ as when ‘the settlement strips the party of a legal claim or cause

of action.’” (emphasis added) (quoting Agretti v. ANR Freight Sys., 982 F.2d

242, 246 (7th Cir. 1992)) (additional quotation omitted). Any doubt is dispelled

when we focus upon the “case-or-controversy” at bar. Here, Appellants appeal

the district court’s approval of the underlying settlement agreement as a whole,

rather than any particular provision. See Fed. R. Civ. P. 23(e) (“[T]he court may

approve [the proposed settlement] only after . . . finding that it is fair, reasonable,

and adequate.”).

      Admittedly, 4 Newberg on Class Action § 11:55 (4th ed. 2002) counsels

otherwise:

      [N]onsettling defendants in a multiple defendant litigation context
      have no standing to object to the fairness or adequacy of the
      settlement by other defendants, but they may object to any terms that
      preclude them from seeking indemnification from the settling
      defendants. Nonsettling defendants also have standing to object if
      they can show some formal legal prejudice to them, apart from loss
      of contribution or indemnity rights.



provision of the agreement); see also, e.g., Alumax Mill Prods., Inc. v. Congress
Fin. Corp., 912 F.2d 996, 1001-02 (8th Cir. 1990) (holding that a non-settling
defendant has standing “to object where it can demonstrate that it will sustain
some formal legal prejudice as a result of the settlement,” but declining to
expressly consider whether each objection to the partial settlement agreement
raised by the non-settling defendant met this standard (emphasis added)); Waller
v. Fin. Corp. of Am., 828 F.2d 579, 582 (9th Cir. 1987) (recognizing that “a non-
settling defendant [has standing] to object where it can demonstrate that it will
sustain some formal legal prejudice as a result of the settlement” (emphasis
added)).

                                          -3-
(emphasis added), cited with approval in In re Integra Realty Res., Inc., 262 F.3d

at 1103. The scant case law that exists on this subject cites this language

frequently. See, e.g., In re Integra Realty Res., Inc., 262 F.3d at 1103; In re

Viatron Computer Sys. Corp. Litig., 614 F.2d 11, 14 (1st Cir. 1979); In re Beef

Indus. Antitrust Litig., 607 F.2d 167, 172 (5th Cir. 1979). Notwithstanding

courts’ reliance on Newberg’s language, whether it deserves great weight is

entirely another matter.

      Tellingly, any substantive analysis demonstrating the merits of this position

is, at best, elusive. See, e.g., In re Rite Aid Corp. Sec. Litig., 146 F. Supp. 2d

706, 716 n.12 (E.D. Pa. 2001) (noting that whether nonsettling defendants, who

had standing to challenge a Bar Order, also had “the right to object to the

settlement as having been obtained by unfair conduct . . . is a . . . close[]

question,” but electing to “merely note th[e] issue and move on”). Indeed, tracing

this language to its origin in the first edition of Newberg on Class Actions, it

appears Newberg — without independent analysis — relies on several district

court cases for his conclusion. See 3 Newberg on Class Actions § 5660b at 564-

65 (1977). Review of the cases cited by Newberg also reveals no substantive

analysis of this issue. While presumably Newberg’s perspective is best

understood in light of “[p]ublic policy strongly favor[ing] the pretrial settlement

of class action lawsuits,” see In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th

Cir. 1992), Article III standing represents “the irreducible constitutional

                                          -4-
minimum” requirements for maintaining a “case-or-controversy.” See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). “At its core . . . constitutional

standing requires a court to ask not only whether an injury has occurred, but

whether the injury that has occurred may serve as the basis for a legal remedy in

the federal courts.” See Bd. of County Comm’rs. v. Geringer, 297 F.3d 1108,

1112 (10th Cir. 2002). Put simply, I believe Newberg’s view is mistaken because

it conflates the standing and merits analysis.

      Additionally, whether Appellants must demonstrate standing as to each

provision of the partial settlement agreement is also the point at which the

majority and dissent diverge. Clearly, the dissent to the Court’s opinion is correct

that “[t]o have standing under Article III, Non-Settling Defendants ‘must

demonstrate standing for each claim that [they] seek[] to press.’” See New

England Health Care Employees Pension Fund, 512 F.3d at 1292 (quoting

DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1867 (2006)). But applying that

general principle here requires careful consideration of this matter’s procedural

posture. Again, the Appellants’ appeal is not to any particular portion of the

partial settlement. Quite clearly, Appellants appeal from the district court’s Fed.

R. Civ. P. 23(e) approval of the parties’ partial settlement agreement as a whole.

As such, Appellants’ objections to the settlement agreement’s Complete Bar

Order, Reform Act Bar Order, and Contractual Provisions are not separate

“claims,” which Appellants “seek[] to press.” See DaimlerChrysler, 126 S. Ct. at

                                         -5-
1867; see Black’s Law Dictionary 240 (7th. ed. 1999) (defining a “claim” as,

inter alia, “[a]n interest or remedy recognized at law; the means by which a

person can obtain a privilege, possession, or enjoyment of a right or thing;

CAUSE OF ACTION”). Rather, the ultimate issue presented by Appellants on

appeal is whether the district court abused its discretion in concluding the

settlement agreement, as a whole, “is fair, reasonable, and adequate.” See Fed. R.

Civ. P. 23(e); see also Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180,

186 (10th Cir. 2002).

      In my view, by demonstrating that the partial settlement agreement causes

them plain legal prejudice in any regard, Appellants satisfy the requirements of

standing to challenge the approval of the agreement. See Eichenholtz, 52 F.3d at

482 (“Where the rights of third parties are affected, it is not enough to evaluate

the fairness of the settlement to the settling parties; the interests of such third

parties must be considered.”). The Court’s opinion perpetuates ambiguity in an

area of the law that desperately needs clarification. As such, I respectfully

dissent from the denial of panel rehearing. 3




      3
        Further, given that Appellants demonstrated “plain legal prejudice” by
the Bar Order or the Complete Bar Order, the dissent’s understanding of the
Contractual Provisions’ effect — however correct for Rule 23(e) purposes — goes
to the merits, not standing. See New England Health Care Employees Pension
Fund, No. 06-1482, Dissenting Op. at 1-8.

                                          -6-
                                                              FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit

                                                      January 16, 2008
                                     PUBLISH         Elisabeth A. Shumaker
                                                         Clerk of Court
                   UNITED STATES COURT OF APPEALS


                                TENTH CIRCUIT


NEW ENGLAND HEALTH CARE
EMPLOYEES PENSION FUND, on
behalf of itself and all others similarly
situated; CLIFFORD MOSHER, on
behalf of himself and all others                No. 06-1482
similarly situated; TEJINDER SINGH,
on behalf of himself and all others
similarly situated; SOTPAL SINGH,
on behalf of himself and all others
similarly situated,


      Plaintiffs - Appellees,


v.


ROBERT S. WOODRUFF; JOSEPH P.
NACCHIO,


      Defendants - Appellants,


                 and


QWEST COMMUNICATIONS
INTERNATIONAL, INC.; DRAKE S
TEMPEST; JAMES A. SMITH;
ARTHUR ANDERSEN L.L.P.;
CRAIG D. SLATER; PHILIP F.
ANSCHUTZ,
       Defendants - Appellees.
        APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLORADO
(D.C. No. 01-cv-01451-REB-PAC, 02-cv-00333-REB-PAC, 02-cv-00507-REB-
  PAC, 02-cv–00374-REB-PAC, 02-cv-00755-REB-PAC, 02-cv-00798-REB-
  PAC, 02-cv-00658-REB-PAC, 01-cv-01799-REB-PAC, 01-cv-01472-REB-
  PAC, 01-cv-01527-REB-PAC, 01-cv-01930-REB-PAC, 01-cv-01616-REB-
                      PAC, 01-cv-02083-REB-PAC)




Herbert J. Stern of Stern & Kilcullen, LLC, Roseland, New Jersey, and David
Meister of Clifford Chance, US, LLP, New York, New York (James Miller and
David Cook of Clifford Chance, US, LLP, New York, New York; and Jeffrey
Speiser and Joel M. Silverstein of Stern & Kilcullen, LLC, Roseland, New Jersey,
with them on the briefs), for Defendants-Appellants.


David R. Boyd of Boies, Schiller & Flexner LLP, Washington, D.C. (Jonathan D.
Schiller, Alfred P. Levitt, and Jorge Schmidt P. of Boies, Schiller & Flexner LLP,
Washington, D.C.; Terence C. Gill of Sherman & Howard, LLC, Denver,
Colorado, with him on the brief), for Defendant-Appellee Qwest Communications
International Inc.


Michael J. Dowd of Lerach Coughlin Stoia Geller Rudman & Robbins LLP, San
Diego, California (Keith F. Park, Spencer A. Burkholz, and Thomas E. Egler of
Lerach Coughlin Stoia Geller Rudman & Robbins LLP, San Diego, California;
Sanford Svetcov and Susan K. Alexander of Lerach Coughlin Stoia Geller
Rudman & Robbins LLP, San Francisco, California, with him on the brief), for
Plaintiffs-Appellees.




Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.




                                       -2-
KELLY, Circuit Judge.




      Defendants-Appellants Joseph P. Nacchio 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. Nacchio and Mr.

Woodruff’s objections to the settlement.




                                   Background

      This case 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


                                        -3-
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



                                          -4-
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.

      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



      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 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”).

                                        -5-
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. Woodruff’s objections “[b]ased 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

                                          -6-
district court entered its final Judgment on October 2, 2006. Aplt. App. at 174,

1044. 2 Mr. Nacchio and Mr. Woodruff’s 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. Nacchio and Mr. Woodruff have standing and remand the case for

the district court to provide a more extensive explanation for its decision.

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. Nacchio and Mr. Woodruff’s

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

      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.

                                          -7-
may only hear actual “Cases” or “Controversies,” U.S. Const. art. III, § 2, cl.1,

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



                                         -8-
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.

Nacchio 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. Woodruff’s

contribution and indemnification rights by requiring them to release their claims

against Qwest and then lose the benefit of any possible indemnification in a

                                        -9-
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. Woodruff’s 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. Woodruff’s 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

                                         - 10 -
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. Woodruff’s ability to seek indemnification

and therefore come within the terms of our precedent. 3

      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 “legal[ly] 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.
Woodruff’s 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, 376 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

                                        - 11 -
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]henever 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. Nacchio 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



contribution rights. Rather, the employer 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. Woodruff’s ability to
seek indemnification from a settlement. See In re Integra I, 262 F.3d at 1102.

                                         - 12 -
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 (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.

Woodruff’s contentions and explaining the challenged provisions, simply

“overrule[d]” Mr. Nacchio and Mr. Woodruff’s 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. Aplt. App. at 681-840. The reply is argument to the district court



                                          - 13 -
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 ultimately 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. Woodruff’s 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. Woodruff’s

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



                                         - 14 -
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.




                                         - 15 -
06-1482, New England Health Care Employees Pension Fund, et al. v. Woodruff,

et al.

BRISCOE, Circuit Judge, dissenting:

         Because the majority errs (1) in its determination that Joseph Nacchio and

Robert Woodruff (“Non-Settling Defendants”) have standing to contest the two

Contractual Provisions, and (2) in its decision to remand to the district court for a

more detailed analysis of Non-Settling Defendants’ objections, I respectfully

dissent.

                                              I.

         I agree with the majority that Non-Settling Defendants have standing to

contest the Complete Bar Order and the Reform Act Bar Order. I disagree,

however, that they have standing to contest the two Contractual Provisions.

         The Contractual Provisions protect the Settling Defendants and other

Released Persons in the event that the Bar Orders fail to do so. The first of the

Contractual Provisions is an indemnification clause. It provides, in essence, that

if Plaintiffs obtain a settlement or judgment against Non-Settling Defendants, and

Non-Settling Defendants successfully recover some of that liability from any of

the Released Persons, then Plaintiffs will subtract that amount from the settlement

or judgment against Non-Settling Defendants. 1 Similarly, the second of the

         1
             The first Contractual Provision provides, in relevant part:

         To the extent (but only to the extent) not covered by the Reform Act
Contractual Provisions contains an agreement by Plaintiffs not to settle any claim

or judgment against Non-Settling Defendants without obtaining a release of any

claims Non-Settling Defendants may have against the Released Persons. 2


      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 upon, arising out
      of, relating to, or in connection with the Released Claims or the
      subject matter thereof. In the event that a settlement is reached
      between Lead Plaintiffs or the Class and a Non-Settling Defendant,
      or final judgment is entered in favor of Lead Plaintiffs or the Class
      against a Non-Settling Defendant before the resolution of that Non-
      Settling Defendant’s potential claims against any Released Person,
      any funds collected on account of such settlement or judgment shall
      not be distributed, but shall be retained by the Escrow Agent pending
      the resolution of any potential claim by the Non-Settling Defendant .
      . . against such Released Person(s) as provided in Paragraphs 11.3
      and 11.4 of this Stipulation. . . . Inclusion of this Paragraph 11.3 in
      the Judgment is material to Settling Defendants’ decision to
      participate in this Stipulation.

Stip. of Partial Settlement, ROA, Vol. III, at 1091-92, ¶ 11.3.
      2
          The full language of the second Contractual Provision reads:

      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 upon,
      arising out of, relating to or in connection with the Released Claims
      or the subject matter thereof, provided that each Settling Defendant
      shall execute and provide to the Non-Settling Defendant a release in
      a form that is satisfactory both to the Settling Defendants and the
      Non-Settling Defendant. Inclusion of this Paragraph 11.4 in the
      Judgment is material to Settling Defendants’ decision to participate

                                         -2-
      Non-Settling Defendants do not have standing to challenge these

provisions. To have standing under Article III, Non-Settling Defendants “must

demonstrate standing for each claim that [they] seek[] to press.” DaimlerChrysler

Corp. v. Cuno, 126 S. Ct. 1854, 1867 (2006). In a closely analogous situation, we

recently explained:

      Non-settling defendants generally have no standing to complain
      about a settlement, since they are not members of the settling class. .
      ..


      Courts have recognized a limited exception to this rule where
      nonsettling parties can demonstrate they are “prejudiced” by a
      settlement. However, it is not sufficient for [the non-settling
      defendants] to show merely the loss of some practical or strategic
      advantage in litigating their case. “Prejudice” in this context means
      “plain legal prejudice,” as when the settlement strips the party of a
      legal claim or cause of action.


In re Integra Realty Res., Inc. (In re Integra I), 262 F.3d 1089, 1102 (10th Cir.

2001) (citations, alterations, and some internal quotation marks omitted).

      Contrary to the majority’s misreading of the Contractual Provisions, they

do not “essentially strip” or “palpably interfere with” Non-Settling Defendants’

“preexisting rights and potential legal claims.” (Majority Op. at 10.) Rather, the

Contractual Provisions simply provide for a private contractual agreement

between Plaintiffs and the Released Persons, whereby Plaintiffs agree not to


      in this Stipulation.

Stip. of Partial Settlement, ROA, Vol. III, at 1092, ¶ 11.4.

                                         -3-
negotiate a settlement with Non-Settling Defendants that prejudices the Released

Persons—and to indemnify the Released Persons if they do. Even if the practical

effect of the Contractual Provisions is to decrease Plaintiffs’ incentive to settle

with the Non-Settling Defendants, this “show[s] merely the loss of some practical

or strategic advantage in litigating their case,” rather than any “plain legal

prejudice.” In re Integra I, 262 F.3d at 1102.

      By paraphrasing the terms of the second Contractual Provision as

“mandat[ing] that Plaintiffs must obtain a release,” (Majority Op. at 12 n.3), the

majority omits the simple fact that Non-Settling Defendants remain in control of

whether they will, or will not, enter into a settlement with Plaintiffs in the first

place. Non-Settling Defendants have choices. Unless and until Non-Settling

Defendants agree to a settlement with Plaintiffs, the question of a release does not

arise. As for the first Contractual Provision, which the majority describes as

“mandat[ing] that Plaintiffs . . . must reduce the settlement amount by any amount

[Non-Settling Defendants] might still receive as an indemnity from Qwest,”

(Majority Op. at 12 n.3), this provision merely guarantees that Plaintiffs will not

indirectly recover additional amounts from the Released Persons, over and above

the $400 million that the Released Persons have already agreed to pay under the

Settlement. This provision ensures that, if Plaintiffs recover $X from Non-

Settling Defendants, and Non-Settling Defendants later recover that amount ($X)

from the Released Persons (via, for instance, an action for indemnification), then

                                          -4-
Plaintiffs will reduce their recovery against Non-Settling Defendants to nothing.

This agreement is solely between Plaintiffs and the Released Persons. It

guarantees the Released Persons that their total liability will be $400 million—no

more, no less—and provides them with the peace of mind that settling parties

both expect and require. Non-Settling Defendants are not prejudiced by either

Contractual Provision.

      The majority’s standing analysis, moreover, is infinitely open-ended, and

its perfunctory attempt to reconcile its holding with In re Integra I is

unpersuasive. (Majority Op. at 11.) The majority relies upon an isolated

statement from In re Integra I that “‘[p]lain 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 v. ANR Freight Sys., Inc., 982 F.2d 242, 247-48 (7th Cir. 1992)).

However, the Seventh Circuit’s decision in Agretti—from which the above-quoted

language was lifted verbatim—shows exactly why Non-Settling Defendants do

not have standing to contest the Contractual Provisions in this case. In Agretti,

982 F.2d at 244, two defendants—ANR and Local Union No. 710—had

previously agreed upon a labor contract, and a majority of the members of Local

710 had ratified the contract. Several members of Local 710, though, brought a

class action against ANR and Local 710, arguing, among other things, that the

ratification process was improper. Id. at 244-45. Eventually, the plaintiff class

                                          -5-
reached a settlement with Local 710, which “required Local 710 to declare the . . .

ratification vote and ANR’s implementation of the profit sharing plan void; . . .

and required Local 710 to assist the plaintiffs and cooperate with them for the rest

of the litigation against ANR.” Id. at 245. The non-settling defendant, ANR,

objected to the settlement, arguing that “it suffer[ed] plain legal prejudice because

the settlement invalidate[d] its contracts with Local 710 and violate[d] its due

process rights,” and that its “contract rights [were] invalidated by the settlement .

. . because the settlement require[d] a repudiation of the contract between Local

710 and ANR.” Id. at 247. The Seventh Circuit flatly rejected this argument:

      We do not believe that ANR’s rights are legally prejudiced by this
      provision or any other one in the settlement. Local 710 is not
      repudiating the contract, the settlement simply requires it to make
      some unilateral declarations. ANR still has all of its rights under the
      contract and may protect those rights through any contractual
      provisions or legal action. Nor is ANR precluded in any manner
      from enforcing its rights under the contract with Local 710. While
      Local 710 is required under the settlement to declare the ratification
      vote and implementation of the profit sharing plan void, ANR may
      continue to assert its position that the vote and profit sharing plan are
      valid and enforceable.


Id. at 247-48.

      Like ANR, Non-Settling Defendants here are not “legally prejudiced” by

the Contractual Provisions. Id. at 247. The Contractual Provisions “simply

require[] . . . some unilateral declarations” by parties other than Non-Settling

Defendants. Id. at 247-48. Non-Settling Defendants “still ha[ve] all of [their]


                                         -6-
rights under the[ir indemnification] contract[s] and may protect those rights

through any contractual provisions or legal action.” Id. at 248. “Nor [are Non-

Settling Defendants] precluded in any manner from enforcing [their] rights under

the[ir] contract[s] with [Qwest].” Id. Even with the Contractual Provisions in

force, Non-Settling Defendants “may continue to assert [their] position that [their

indemnification rights are] valid and enforceable.” Id. Thus, under the Seventh

Circuit’s decision in Agretti, which we relied upon verbatim in In re Integra I,

262 F.3d at 1102, the majority’s standing analysis fails, and Non-Settling

Defendants lack standing to challenge the Contractual Provisions here. 3 See also

In re Sch. Asbestos Litig., 921 F.2d 1330, 1333 (3d Cir. 1990) (holding that non-

settling defendants lacked standing to challenge a similar provision).

      In their briefs, Non-Settling Defendants appear to recognize that their

standing argument is weak as to the Contractual Provisions, and they assert a

scattershot of alleged injuries resulting from the Contractual Provisions. None of

the alleged injuries, however, is sufficient to confer standing. For instance, Non-

Settling Defendants contend, in passing, that the provisions were a breach of

Qwest’s “Bylaws, contracts with Non-Settling Defendants and obligations of good



      3
         Indeed, it is ironic that the majority has to go through such lengths to
distinguish the facts of Agretti, (Majority Op. at 12 n.3), considering that the
majority relies upon Agretti verbatim for its legal standard. Compounding the
error, the majority’s attempt to distinguish Agretti ends up being nothing more
than “a distinction without a difference.”

                                        -7-
faith and fair dealing,” as well as a tortious interference with their

indemnification rights. Non-Settling Defendants’ Reply Br. at 24-25. Non-

Settling Defendants, though, provide no legal authority for such claims and do not

explain how the Contractual Provisions rise to such a level. See Am. Airlines v.

Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992) (“It is insufficient merely to

state in one’s brief that one is appealing an adverse ruling below without

advancing reasoned argument as to the grounds for the appeal.”).

                                          II.

      The majority also errs in vacating the district court’s order and remanding

for more detailed analysis by the district court.

      The district court’s consideration and analysis, while not perfect, were

more than adequate in this case. In a recent case, we addressed an almost

identical situation as the one we face here, where objectors “argue[d] that the

district court did not adequately support its approval of the Settlement by

explaining the reasons for its approval and for its rejection of the objections that

were raised.” In re Integra Realty Res., Inc. (In re Integra II), 354 F.3d 1246,

1268 (10th Cir. 2004) (citations and internal quotation marks omitted). We

explained:

      To be sure, “‘a reviewing court [must] have some basis for
      distinguishing between well-reasoned conclusions arrived at after a
      comprehensive consideration of all relevant factors, and mere
      boilerplate approval phrased in appropriate language but unsupported

                                          -8-
      by evaluation of the facts or analysis of the law.’” Newman v. Stein,
      464 F.2d 689, 692 (2d Cir. 1972) (quoting Protective Comm. for
      Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390
      U.S. 414, 434 (1968)). However, 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. Protective Comm., 390 U.S. at 437.


Id. (alteration in original). Because the district court in that case (1) “considered

all prior proceedings in the case and all objections and submissions that were

made in connection with the proposed settlement,” (2) reviewed “materials [that] .

. . included all written objections to the settlement,” (3) “heard objections” at the

settlement fairness hearing, and (4) “was aware of all the issues that appellants

now argue should have been considered when determining the settlement’s

fairness,” we held that “the district court did not abuse its discretion by approving

the settlement.” Id. at 1268-69.

      Here, as in In re Integra II, the district court reviewed and considered all of

the submissions and materials. See Hearing Transcript, ROA, Vol. III, at 939

(explaining that the “reasons stated, arguments advanced and authorities already

cited” have been “carefully read and considered by the court, and its most

competent and able staff”); Dist. Ct. Order, ROA, Vol. III, at 1004 (“I have

reviewed carefully the Stipulation, Nacchio and Woodruff’s objections, Qwest’s




                                         -9-
reply to the objections of Nacchio and Woodruff, and the applicable law.”). 4

Here, as in In re Integra II, the district court entertained objections at a fairness

hearing. As Appellee Qwest notes, “[c]ounsel for both Nacchio and Woodruff

attended the hearing, and counsel for Nacchio presented argument on behalf of

both of them.” Appellee Qwest’s Br. at 21; see Hearing Transcript, ROA, Vol. III,

at 934-35, 952-58. Here, as in In re Integra II, 354 F.3d at 1269, the district court

was “aware of all the issues that Non-Settling Defendants now argue should have

been considered when determining the settlement’s fairness,” particularly in light

of the parties’ extensive briefing on those issues.

      Given the district court’s obligation to analyze the settlement and ensure its

fairness towards all parties involved—not just Non-Settling Defendants—the

district court’s analysis of Non-Settling Defendants’ objections in two-and-a-half

pages of a twelve-page opinion was reasonable. See Linney v. Cellular Alaska

P’ship, 151 F.3d 1234, 1243 (9th Cir. 1998) (holding that the district court

appropriately “outlined . . . objections, gave his responses, and stated why he

believed the settlement to be fair, reasonable, and adequate in a 16-page Order


      4
         The majority is incorrect that the district court never read or considered
Non-Settling Defendants’ Supplemental Brief. At the fairness hearing, which
occurred after Non-Settling Defendants submitted their Supplemental Brief, the
district court instructed the parties that their “papers” had been “carefully read
and considered by the court, and its most competent and able staff.” Hearing
Transcript, ROA, Vol. III, at 939. To be fair, the district court did not say, “I
have read your Supplemental Brief,” but we usually do not require a district court
to provide such an explicit acknowledgment of a party’s submission to the court.

                                         - 10 -
and a 7-page Judgment”). Even if the district court’s adoption of Qwest’s Reply

Brief for its “reasons stated, arguments advanced, and authorities cited,” Dist. Ct.

Order, ROA, Vol. III, at 1004, was more cursory than we might prefer, the

referenced Reply Brief nevertheless contained appropriate legal and factual

support for the district court’s conclusions and analysis, and we can adequately

discern the basis for the district court’s decision. See Protective Comm. for

Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 437

(1968) (“If, indeed, the record contained adequate facts to support the decision of

the trial court to approve the proposed compromises, a reviewing court would be

properly reluctant to attack that action solely because the court failed adequately

to set forth its reasons or the evidence on which they were based.”).

       Moreover, the record on appeal contains all of the briefs that the parties

submitted to the district court, as well as the transcript of the hearing in front of

the district court and the decision of the district court—not to mention a fresh set

of briefs totaling almost 200 pages. Given the detail of this record and the district

court’s specific adoption of the reasoning and authorities cited in Qwest’s Reply

Brief as its ruling, we have very little difficultly in framing the issues at hand or

in discerning the district court’s rulings on those issues. Vacating and remanding,

simply to force the district court to combine all of its reasoning and support into

one document, would create needless delay in a case that is already over six years

old.

                                          - 11 -
      The majority relies almost entirely on the Eleventh Circuit’s decision in

AAL High Yield Bond Fund v. Deloitte & Touche LLP, 361 F.3d 1305, 1312

(11th Cir 2004), in which the court vacated a bar order in a securities litigation

settlement and remanded for “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 ultimately approves.”

Admittedly, AAL High Yield Bond Fund provides support for vacating and

remanding to the district court. However, the district court in AAL High Yield

Bond Fund appears to have undertaken less analysis than the district court did

here, and the issues in the instant case are appropriately framed and defined for

appeal. Moreover, as explained supra, our own decision in In re Integra II is

controlling here and strongly favors our accepting the district court’s ruling for

review without requiring further explication, the Eleventh Circuit’s decision

notwithstanding.




                                         - 12 -
