                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     June 27, 2013
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                             FOR THE TENTH CIRCUIT


 GENE R. EATINGER, on behalf of
 himself and all similarly situated
 royalty owners,

           Plaintiff–Appellee,

 and

 CHESAPEAKE ENERGY                                       No. 12-3243
 CORPORATION; CHESAPEAKE                    (D.C. No. 6:07-CV-01266-EFM-KMH)
 OPERATING, INC.; CHESAPEAKE                              (D. Kan.)
 ROYALTY, L.L.C., excluded
 unnamed class members,

           Plaintiffs–Appellants,

 v.

 BP AMERICA PRODUCTION
 COMPANY,

           Defendant–Appellee.


                                 ORDER AND JUDGMENT *


Before KELLY, McKAY, and MATHESON, Circuit Judges.


       Appellants Chesapeake Energy Corporation, Chesapeake Operating, Inc.,


       *
        This order and judgment is not binding precedent, except under the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.
and Chesapeake Royalty, L.L.C. appeal the district court’s order excluding them

from the class action settlement in this case.

      Appellants were originally unnamed class members in the plaintiff class

certified by the district court in this case in August 2010. At that time,

Appellants received notice of the action and elected not to exclude themselves

from the class. The class of more than 6,000 participants (the Class) pursued its

claims for underpayment of oil and gas royalties until July 2012, when a

settlement agreement was reached between the Class and Defendant. The

settlement agreement contained a provision defining the “Eatinger/BP Class” as

“All royalty owners of BP American Production Company . . . from wells located

in Kansas that have been paid royalties for gas and/or gas constituents . . . before

January 1, 2012 and whose gas was processed at BP’s Jayhawk Processing plant,”

excluding, amongst others, “Chesapeake Energy Corp., Chesapeake Operating

Inc., Chesapeake Royalty, and any Chesapeake affiliated entity.” (App. at 132.)

      Shortly after reaching settlement and filing a joint motion for approval of

the settlement agreement, the Class filed a motion seeking to redefine the Class to

exclude Appellants from the settlement agreement. This motion was based on the

Class’s belief that Appellants were adverse to the interests of the Class in that

they would object to Class counsel’s fee and the Class representative’s incentive

fee as they had done in other class action lawsuits, thereby delaying distribution

to the other Class members. Over Appellants’ opposition, the district court

                                         -2-
granted the Class’s motion. Appellants appeal, arguing the district court erred in

excluding them from the Class.

      After filing this appeal, Appellants filed a motion in the district court to

stay the Federal Rules of Civil Procedure Rule 23(e)(2) fairness hearing, which

the district court denied. The court subsequently held a Rule 23(e)(2) fairness

hearing, after which it approved the settlement agreement. Following this

approval, Appellants filed a motion in this court to stay the distribution of

settlement funds. We, too, denied the motion. Since issuance of our order

denying a stay, the Class settlement incentive award and Class counsel fees and

expenses have been paid (Second Mot. to Dismiss at 1), and distribution checks to

all class members entitled to receive amounts have been mailed (Third Mot. to

Dismiss at 1 & Exhibit (Dist. Ct. Dkt. No. 387)).

      In light of these post-appeal developments, the Class filed three motions to

dismiss this appeal arguing, among other things, that the appeal is now moot. We

agree with the Class and therefore do not reach the merits of Appellants’ appeal. 1

      “It has long been settled that a federal court has no authority to give

opinions upon moot questions or abstract propositions, or to declare principles or

rules of law which cannot affect the matter in issue in the case before it.” Church



      1
        Because we agree that Appellants’ appeal is moot, we likewise need not
reach the other jurisdictional questions raised by the Class, including whether
Appellants have standing to challenge the district court’s order.

                                         -3-
of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (internal quotation

marks omitted). “For that reason, if an event occurs while a case is pending on

appeal that makes it impossible for the court to grant any effectual relief whatever

to a prevailing party, the appeal must be dismissed.” 2 Id. (internal quotation

marks omitted). “The crucial question is whether granting a present

determination of the issues offered will have some effect in the real world.” Prier

v. Steed, 456 F.3d 1209, 1213 (10th Cir. 2006) (internal quotation marks and

alterations omitted).

      We agree with the Class that, in light of the post-appeal developments in

this case, we are unable to grant any effectual relief to Appellants. Since the

filing of this appeal, the district court approved the settlement agreement between

the Class and Defendant and, accordingly, dismissed the case with prejudice;

Class counsel’s fees and expenses and the Class representative’s incentive award

were paid; and distribution checks were mailed to all Class members entitled to

recover under the settlement agreement. There is, therefore, no effectual relief

we can grant to Appellants. Indeed, Appellants conceded as much in their motion


      2
        “Mootness doctrine also encompasses a prudential aspect that gives courts
the discretion to dismiss a case under certain circumstances even when
constitutional jurisdiction is unquestionably satisfied.” WildEarth Guardians v.
Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182 n.6 (10th Cir. 2012). In its motions
to dismiss, the Class argued Appellants’ appeal is prudentially moot in addition to
constitutionally moot. However, “[b]ecause prudential mootness involves a
somewhat different set of concerns, we confine our discussion here to
constitutional mootness.” Id.

                                         -4-
to stay submitted to this court:

      If the settlement funds are distributed, then Chesapeake is forever
      excluded from participation in the Class Action. Without granting this
      stay to delay the distribution of settlement funds, Chesapeake will
      forever lose its opportunity to share in its portion of the nineteen
      million dollar settlement fund. If the funds are distributed prior to the
      determination of Chesapeake’s appeal, there is no practical way to
      recover funds once they have been distributed to 6,000 royalty owners. 3

(Appellants’ Mot. to Stay at 11.)

      In an attempt to now establish otherwise, Appellants point to an

administrative fund containing approximately $82,000 and a final unclaimed

distribution account with an as-yet-undetermined amount of unclaimed settlement

funds, from which Appellants maintain they could recover. (Appellants’ Resp. to

Third Mot. to Dismiss at 5.) They further argue that resolution of this appeal in

their favor “would give Chesapeake the ability to participate as a full-fledged

class member,” thereby permitting them to “challenge the fairness of the

settlement.” (Id. at 7.) However, neither of these arguments alters the fact that

“granting a present determination of the issues” on appeal will not have any

“effect in the real world.” Prier, 456 F.3d at 1213. Even if we were to conclude

that the district court erred in excluding Appellants from the Class, the district



      3
        Judge Hartz, in dissenting from the denial of Appellants’ motion to stay,
likewise foretold this result: “[D]enial of a stay precludes any future relief to
Movants . . . ; no one has explained how the injury can be undone once the
settlement proceeds are distributed. Hence, a stay is required.” (Order Denying
Stay (Hartz, J., Dissenting) at 2-3.)

                                         -5-
court has already approved the settlement agreement (App. at 470-86) and

dismissed the underlying case with prejudice (App. at 486-87). There is,

therefore, no opportunity for Appellants to challenge the fairness of the settlement

agreement. And, under the plain terms of the approved agreement (see App. at

132 (defining the “Eatinger/BP Class” as excluding Appellants)), Appellants are

not entitled to any relief, regardless of whether it could theoretically be possible

for Appellants to recover some amount from the administrative fund or the final

unclaimed distribution account.

      For the foregoing reasons, we GRANT the Class’s motions to dismiss and

DISMISS this appeal as moot.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




                                          -6-
