183 F.3d 1 (1st Cir. 1999)
RICHARD DUHAIME, ET AL., PLAINTIFFS, APPELLEES,v.JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, ET AL. DEFENDANTS,           APPELLEES,HOWARD M. METZENBAUM, APPELLANT.
No. 98-2139.
U.S. Court of Appeals, First Circuit.
Heard April 5, 1999.Decided June 28, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF           MASSACHUSETTS, Hon. George A. O'Toole, Jr., U.S. District Judge
Brian Wolfman, with whom Alan B. Morrison and Public Citizen Litigation Group, were on brief for appellant.
John G. Fabiano, with whom Peter A. Spaeth, Hale and Dorr Llp, Ralph C. Ferrara, Edwin G. Schallert, and           Debevoise & Plimpton, were on brief for appellees.
Before Selya, Boudin, and Stahl, Circuit Judges.
Stahl, Circuit Judge.


1
This appeal is an offshoot of a massive securities fraud, fraud, and breach of fiduciary duties class-action lawsuit           brought against John Hancock Mutual Life Insurance Company, John Hancock Variable Life Insurance           Company, and John Hancock Distributors, Inc. (collectively "John Hancock"). The underlying suit, filed in           September 1995 on behalf of nearly four million present and former policyholders, challenged a number of John           Hancock's sales and marketing practices from 1979 through the mid-1990s. On June 6, 1997, the putative class           entered into a Stipulation of Settlement with John Hancock. Eventually, the district court certified the class and           approved the settlement, explaining its reasoning in a comprehensive opinion. See Duhaime v. John Hancock           Mutual Life Ins. Co., 177 F.R.D. 54 (D. Mass. 1997) ("Duhaime I"). Because the particulars of the lawsuit and           the settlement terms are largely irrelevant to our analysis, we refer interested readers to Duhaime I and confine           our focus to facts pertinent to this appeal.


2
After the details of the proposed settlement were communicated to the class in late June 1997, seventy-seven           absent class members (i.e., class members not named as parties) came forward and filed written objections.           Among the objectors were appellant Howard M. Metzenbaum and sixteen policyholders represented by           attorney Diane Nygaard. We follow the lead of the parties and refer to the Nygaard-led group as the "Rose           Objectors."Metzenbaum initially took issue with various aspects of the class notice and with the structure of the           proposed counsel-fees award, but after negotiating changes to the notice procedures that satisfied his concerns in           this area, he chose to press only his counsel-fees objection. The Rose Objectors filed sweeping objections to           nearly all aspects of the proposed settlement. On October 24, 1997, the district court held a hearing to evaluate           the fairness of the settlement. See Fed. R. Civ. P. 23(e). Metzenbaum and the Rose Objectors appeared to           present their arguments in opposition. On December 31, 1997, the court filed separate memoranda and orders           approving the settlement, see Duhaime I, 177 F.R.D. at 72, but altering to some degree the fee-payment           structure conceived by the settling parties, see Duhaime v. John Hancock Mutual Life Ins. Co., 989 F. Supp.           375, 378-80 (D. Mass. 1997) ("Duhaime II"). In doing so, the court largely sustained Metzenbaum's objections,           see id., but rejected the Rose Objectors' complaints as lacking in merit, see Duhaime I, 177 F.R.D. at 71-72.


3
Shortly after the district court approved the settlement, Attorney Nygaard, acting on behalf of the Rose           Objectors, filed a request for counsel fees in the district court and a notice of appeal from the court's approval of           the settlement. When Metzenbaum's counsel learned of the appeal, he telephoned Nygaard and asked that she           serve him with copies of the appellate briefs. Nygaard agreed to put Metzenbaum's counsel on the service list,           but added that the appeal soon would be settled on "very, very good" terms for her clients. Shortly thereafter, the           Rose Objectors withdrew with prejudice both their appeal and their still-pending request for counsel fees.


4
At this point, Metzenbaum became concerned that something was amiss because the Rose Objectors apparently           had secured a side settlement more favorable than the class settlement and no court had evaluated the fairness of           the side settlement. In Metzenbaum's view (elaborated below), a post-judgment settlement of this nature violates           both the letter and spirit of Fed. R. Civ. P. 23(e): "A class action shall not be dismissed or compromised without           the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of           the class in such manner as the court directs." See also In re General Motors Corp. Pick-Up Truck Fuel Tank           Prods. Liab. Litig., 55 F.3d 768, 804-19 (3d Cir. 1995) (Rule 23(e) scrutiny entails a detailed inquiry into           whether the proposed class action settlement is fair, reasonable, and adequate). Metzenbaum's counsel wrote to           Nygaard, class counsel, and John Hancock's counsel, advising them that the side settlement should be presented           to the district court and asking for disclosure of its terms. Counsel for the so-called "settling parties" responded           that disclosure and approval were not required under the circumstances. The responses indicated that, in addition           to resolving the claims of the Rose Objectors, the side settlement also resolved claims of other clients of Attorney           Nygaard who had opted out of the class. The responses did not, however, disclose the terms of the side           settlement or even the parties to the side settlement. Metzenbaum suggests that class counsel, as well as John           Hancock, may have been involved in negotiating the side settlement, and we accept the suggestion for purposes           of this appeal.


5
Metzenbaum then served discovery on John Hancock, Nygaard, and class counsel, but received replies stating           that the discovery requests were untimely and that, as an absent class member, he was not a "party" entitled to           discovery. Consequently, Metzenbaum moved the district court to compel post-judgment discovery under Fed.           R. Civ. P. 37 and, in the event the court did not regard him as a party entitled to discovery, to permit him to           intervene as a party under Fed. R. Civ. P. 24. In making his motion, Metzenbaum informed the court that, should           the requested discovery reveal a substantial difference between the side settlement with the Rose Objectors and           the settlement offered to the class, he would file a motion under Fed. R. Civ. P. 60(b) asking the court either to           require John Hancock to offer the same deal to all class members, including himself, or to abrogate the Rose           Objectors' side settlement and require that the proceeds be disbursed to the class. John Hancock opposed the           motion, pointing out, inter alia, that the class settlement was entirely unaffected by the side settlement with the           Rose Objectors. The court denied Metzenbaum's motion by margin order. This appeal, which only John           Hancock actively opposes, followed.


6
In framing their appellate arguments, the parties have sounded broad themes and taken a number of controversial           positions. Metzenbaum asserts that Fed. R. Civ. P. 23(e) applies even to settlements concluded on appeal; that           in the circumstances presented here, he was entitled to invoke Fed. R. Civ. P. 37's enforcement provisions           post-judgment; that absent class members such as himself are "parties" to class actions entitled to discovery; and           alternatively, that he was entitled to intervene as a party in the district court either as of right, see Fed. R. Civ. P.           24(a), or by court permission, see Fed. R. Civ. P. 24(b). John Hancock counters that Metzenbaum lacked           Article III standing in the district court because he failed to allege an injury in fact, i.e., that he has suffered, or           imminently will suffer, an invasion of a concrete, particularized, and legally protected interest, see Lujan v.           Defenders of Wildlife, 504 U.S. 555, 560 (1992); that absent class members are not parties to class actions; that           Metzenbaum's allegations fail to establish an entitlement to intervention, either as of right or by court permission;           and that the district court in any event properly declined Metzenbaum's request for discovery because the           material sought could provide no basis for upsetting the judgment.


7
As to whether Metzenbaum had Article III standing, we think it sufficient to observe that the line of argument set           forth in the motion to compel (and on appeal) necessitates a Discussion of the possibility of a fraud, see infra at           16-18, and that Metzenbaum, as a class member, has standing to press such an argument because he has a           concrete, particularized, and legally protected interest in both faithful representation by class counsel and in not           being defrauded by an adverse party, cf. Fed. R. Civ. P. 60(b)(3) (recognizing "fraud . . . misrepresentation, or           other misconduct of an adverse party" as a basis for seeking relief from judgment). As to the potentially difficult           issues of Metzenbaum's "party" status and right to intervention in order to obtain discovery, we think they are           extinguished for purposes of this case by our answer to a narrower, logically antecedent question: Must a district           court scrutinize and approve as fair an appellate side settlement between the parties who have reached a           court-approved settlement of a class action and separately represented class members who had objected to the           settlement prior to its approval? Metzenbaum contends that Fed. R. Civ. P. 23(e) and/or general class action           principles derived from the case law give class members like himself an interest in such scrutiny and approval. But           as we explain below, Metzenbaum reads the authority he cites too broadly. Where, as here, the class settlement           is unaffected by the side settlement and there has been no demonstration of a fraud, absent class members like           Metzenbaum simply have no unconditional right to have a court review and approve as fair the terms of such a           side settlement.


8
We start with Metzenbaum's contention that Fed. R. Civ. P. 23(e) explicitly requires court approval of the side           settlement. Assuming arguendo that the Rule somehow applies post-judgment to the compromise of an appeal           from a district court's approval of a class- action settlement, but see Fed. R. Civ. P. 1 ("These rules govern the           procedure in the United States district courts . . . .") (emphasis supplied), we reject the argument on plain           language grounds. Rule 23(e) only requires court approval of the dismissal or compromise of "[the] class action"           itself; it in no way suggests that negotiated resolutions of disputes peripheral to the class action need be           approved. It is for precisely this reason that courts have declined to require full Rule 23(e) approval of separate           merits settlements that class-action defendants have negotiated with absent class members. See, e.g., In re           General Motors Corp. Engine Interchange Litig., 594 F.2d 1106, 1138-40 (7th Cir. 1979) (judicial examination           of such separate merits settlements is not to ensure the fairness of the settlements, but only to ensure that the           settlement offers provided the absent class members with sufficient information to make an informed decision           whether to settle or proceed); In re Shell Oil Refinery, 152 F.R.D. 526, 536 (E.D. La. 1989) (same); see           generally 2 Herbert Newberg & Alba Conte, Newberg on Class Actions § 11.75, at 11-199 (3d ed. 1992); 7B           Charles Alan Wright, et al., Federal Practice and Procedure § 1797, at 377-78 (2d ed. 1986); cf. Weight           Watchers of Philadelphia v. Weight Watchers Int'l Inc., 455 F.2d 770, 773 (2d Cir. 1972) (Friendly, J.)           (declining to require full Rule 23(e) approval of settlements with potential class members prior to class           certification). Such individual side settlements are just that - side settlements; they are not a settlement of the class           action itself.


9
Metzenbaum also argues that general class action principles support his proposed disclosure and approval           requirement. In support of his position, Metzenbaum cites a number of complex litigation cases in which, even           though Fed. R. Civ. P. 23(e) did not strictly apply, courts either have required court scrutiny of or actually           scrutinized agreements peripheral to the class action. Unlike the just-mentioned In re General Motors Corp. and           In re Shell Oil Refinery cases (where, despite the inapplicability of Rule 23(e), courts scrutinized side settlements           with absent class members to ensure that those class members made informed settlement decisions), the cases           Metzenbaum cites all involved circumstances in which there were systemic incentives for class counsel or the           named class plaintiffs to act in disregard of fiduciary duties owed to absent class members in concluding these           peripheral agreements.


10
For example, noting "the danger that the lawyers might urge a class settlement at a low figure or on a           less-than-optimal basis in exchange for red-carpet treatment on fees," Weinberger v. Great Northern Nekoosa           Corp., 925 F.2d 518, 524 (1st Cir. 1991), we have directed district courts to exercise their equitable jurisdiction           to review counsel-fee arrangements negotiated in connection with class-action settlements - even where the           counsel fees are not taken from a common fund but are instead paid separately by a class-action defendant, see           id. at 523-25. Similarly, courts in two recent mass-tort settlements appear to have required approval of           settlements struck between clients of class counsel who were not members of a class and a party opposing the           class. See Georgine v. Amchem Prods., Inc., 157 F.R.D. 246, 294-99, 307-10 (E.D. Pa. 1994), rev'd on other           grounds, 83 F.3d 610, 622 (3d Cir. 1996), aff'd 521 U.S. 59 (1997); In re Asbestos Litig., 90 F.3d 963,           978-80 (5th Cir. 1996), cert. granted and judgment vacated on other grounds, 117 S. Ct. 2503 (1997). In each           instance, the court acted out of concern that class counsel's simultaneous representation of the class and           individual clients outside the class might have given rise to a conflict of interest. See Georgine, 157 F.R.D. at           299; In re Asbestos, 90 F.3d at 980. And the Fourth Circuit, having reached the controversial Conclusion that           Rule 23(e) does not apply prior to class certification, see Shelton v. Pargo, Inc., 582 F.2d 1298, 1302-04 (4th           Cir. 1978), nonetheless held that pre-certification voluntary dismissals of claims by the named plaintiffs of a           putative class should be evaluated under the Rule 23(e) paradigm pursuant to the district court's "supervisory           power over and . . . special responsibility in actions brought as class actions," id. at 1306. In Shelton, the           concern was that a named plaintiff may succumb to self-interest and settle in such a way as to harm the interests           of absent class members. See id. at 1304- 06 & nn. 17-19.


11
But we see no inherent risk of victimization of the uninformed, convergence of interests of putative adversaries, or           conflict of interests between or among those to whom fiduciary duties are owed, in an appellate side settlement of           the type Metzenbaum challenges. Tellingly, Metzenbaum does not explain how a party to or attorney involved in           such an appellate side settlement might be tempted to act in derogation of a fiduciary duty. This of course means           that Metzenbaum has not specified how class counsel - the only persons potentially involved in the side           settlement with fiduciary duties to absent class members like himself - faced systemically generated incentives to           violate such a duty in compromising the Rose Objectors' appeal. Instead, Metzenbaum derives from the cases           just described a broader principle: a generalized concern on the part of courts that "similarly-situated class           members [be] treated similarly and that monies paid by the defendants for purposes of settlement inure to the           benefit of all class members." Appellant's Brief at 16; see also id. at 17, 19, and 23. Using this principle as his           point of departure, Metzenbaum argues that the injury he suffered is his alleged unequal treatment (in terms of           settlement results) vis-a-vis the Rose Objectors.


12
Metzenbaum's statement of the applicable principle is sound insofar as it implies that courts are concerned with           adequate and similar results for all similarly situated class members in a class action settlement. See, e.g., In re           General Motors Corp., 55 F.3d at 808 ("One sign that a settlement may not be fair is that some segments of the           class are treated differently from others."). Yet this is only because different recoveries for similarly harmed           persons who have remained within the class and are represented by class counsel (or high attorney-fee awards           negotiated in connection with paltry class settlements) can constitute powerful evidence that a fiduciary obligation           has not been honored. See In re General Motors Corp., 594 F.2d at 1139 ("Rule 23(e) requires judicial           approval of class action settlements to guard against possible ineffective representation of absentees' interests by           the representative parties."); see also, e.g., In re General Motors Corp., 55 F.3d at 809 (courts should "withhold           approval from any settlement that creates conflicts among the class"); Weinberger, 925 F.2d at 524-25           (discussing oversight of attorney-fee agreements as necessary to prevent class-harming conflicts of interest           between the plaintiff class and class counsel); 7B Wright, et al., Federal Practice and Procedure § 1797, at           340-41 (discussing oversight of settlements involving representative parties as necessary to ensure that the           representative parties had not become fainthearted or settled solely out of self-interest). But to the extent that           Metzenbaum reads cases like Weinberger, Georgine, In re Asbestos, and Shelton as broadly directing courts           entertaining class actions to ensure similar recoveries by all similarly harmed persons within the original class,           regardless of the litigation decisions they have made, he is wrong.


13
We simply have no tradition of court intervention to ensure that similarly victimized plaintiffs who have retained           separate counsel and have made different litigation decisions get similar results. Cf., e.g., Fed. R. Civ. P. 23(c)(2)           (requiring that notice to the class explicitly inform class members that they may opt out of the class action).           Similarly harmed plaintiffs often secure separate representation and subsequently enter into materially different           settlements with a common defendant. In such situations, the settling parties have no legally protected interest in           having a court scrutinize each settlement to ensure that all plaintiffs receive similar consideration for their releases.           A fundamental assumption of our adversary system is that adversaries represented by persons with presumably           undivided loyalties will tend to negotiate acceptably fair resolutions of their disputes. As we have implied, courts           oversee class-action settlements only because factors unique to the class-action context - the already-noted           tendency towards a coincidence of interests between class representatives and the party opposing the class, and           the chasm between representatives and faceless, absent class members - call into question whether the           representatives' loyalties are in fact undivided.


14
We come then to the basic question: Are Metzenbaum and the Rose Objectors so "similarly situated" that we           should view any difference in their ultimate recoveries as evidence of a systemically induced breach of a fiduciary           duty owed to Metzenbaum and absent class members? We think the answer clearly is "no." Although           Metzenbaum and the Rose Objectors are members of the same class and originally were represented by the           same class counsel, they eventually secured separate representation through which they took decidedly different           positions with respect to the proposed settlement and opposite positions with respect to the final judgment. So           long as there was no fraud, that the Rose Objectors might have obtained something in return for eventually           dropping their efforts to disrupt the settlement constitutes no cognizable injury to Metzenbaum, who has received           or will receive the full benefit of the bargain to which he acquiesced and which the district court deemed fair           under Fed. R. Civ. P. 23(e).


15
In his appellate brief, Metzenbaum hints at but does not fully develop two additional rationales for court           intervention which might be taken as alternatives to his similar-results-for-the-similarly-harmed argument. The first           is that courts should intervene to prevent possible extortion; the second is that courts should intervene to prevent           possible fraud. Before we conclude, we believe it important to say a few words about each of these two           arguments.


16
The Rose Objectors had little to lose in pressing their appeal. If they had lost, they would have remained entitled           to the relief secured by the class. If they had won, they almost certainly would have brought about a more           favorable settlement for the class. See 2 Newberg on Class Actions § 11.14, at 11-18 ("In general, after a class           is certified, particularly in a class action for damages, there is a great likelihood of settlement before trial because           of the increased assessment by defense counsel of exposure to substantial liability."). In the class-action context,           such little-to-lose situations sometimes cause concern because they raise the specter of extortive legal           proceedings pressed "not to redress real wrongs, but to realize upon their nuisance value." Cohen v. Beneficial           Loan Corp., 337 U.S. 541, 548 (1949) (acknowledging the incentives management sometimes has to settle           "strike suits" brought as shareholder derivative actions). While we have no reason to believe that the Rose           Objectors or Attorney Nygaard extorted their appellate settlement, we recognize that a class member and his or           her attorney conceivably could object to a proposed settlement solely to set up an appeal designed to obtain a           nuisance value recovery and/or advantageous fee arrangement. We also recognize that, in Weinberger, a concern           with deterring extortionate settlements partially informed our decision to subject to district court scrutiny all fee           arrangements negotiated in connection with class-action settlements. See 925 F.2d at 524-25.Metzenbaum           mentions the possibility of extortion in connection with the side settlement of the Rose Objectors' appeal. But in           doing so, he neither argues that extortion might have caused class counsel to bargain away some portion of the           class's negotiated recovery nor seeks to assert a third-party interest - e.g., the interest John Hancock (the party           most obviously positioned to press an extortion argument under the circumstances) might have in not being           subjected to an extortionate appeal - on grounds that John Hancock is unlikely to seek court review of the side           settlement. Instead, Metzenbaum merely suggests that extortion of this type will cause a party opposing a class           action to hold back funds that otherwise might have been offered to the class in the class settlement. Disclosure           and approval is needed, he suggests, to ensure that the class has access to these funds in settlement negotiations.


17
We think that this line of argument is answered by what we already have stated. Courts examine the fairness of           certain class- related settlements because it is thought that, fiduciary obligations notwithstanding, circumstances           unique to the complex litigation context sometimes tempt class counsel and/or named class plaintiffs to conclude           settlements that are not in the best interests of absent class members. In these situations, courts assess whether           the settlements are fair, reasonable, and adequate, see, e.g., In re General Motors Corp., 55 F.3d at 804-19,           because fair settlements can more confidently be regarded as having been negotiated in compliance with the class           representatives' fiduciary duties. But so long as the class settlement remains unaffected, nothing about the           settlement of an extortionate appeal by separately represented, objecting, absent class members logically calls           into question whether the class has been faithfully served by its representatives. Such a settlement thus would not           give a class member the right to invoke Fed. R. Civ. P. 23(e) and its related doctrines as a means of creating a           bigger settlement pie post-judgment, at least under the rationale alluded to here.Of course, matters could be           different if there were some indication that the side settlement of an appeal was a vehicle for implementing or           furthering a fraud. Unlike an appellate side settlement which at the very most merely hints that the class might           have been able to obtain more in the class settlement, a fraud-masking appellate settlement should be understood           to involve affirmative deceit upon the class or court - e.g., use of the recipient of the appellate settlement as a           payment conduit between the party opposing the class and class counsel in an end run around a lower court's           counsel-fees ruling. Seizing on the many cases which mention the prevention of "collusion" between class counsel           or class representatives and the party opposing the class as a justification for court scrutiny of class-action           settlements and peripheral agreements negotiated in connection with class-action settlements, see, e.g., In re           General Motors Corp., 55 F.3d at 805; Weinberger, 925 F.2d at 924-25; Georgine, 157 F.R.D. at 311,           Metzenbaum appears to suggest that appellate side settlements of the sort we consider should be subject to           scrutiny and approval as a means of detecting whether they are masking a fraud.


18
But after final judgment has entered, our strong interest in the finality of judgments leads courts to intervene in a           search for evidence of fraud only if there has been some showing that a fraud actually has occurred. See H.K.           Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1118-22 (6th Cir. 1976) (discovery in aid of a           motion attacking a final judgment on the basis of fraud should be permitted only if there is some evidence of           fraud); see also Midwest Franchise Corp. v. Metromedia Restaurant Group, Inc., 177 F.R.D. 438, 440 (N.D.           Iowa 1997) (prima facie showing of fraud required); United States ex rel. Free v. Peters, 826 F. Supp. 1153,           1154 (N.D. Ill. 1993) (same). Plainly, there has been no such showing here. In making this point, we emphasize           that a court's obligation to scrutinize class-action settlements and some agreements peripheral to class-action           settlements for evidence of collusion, see, e.g., In re General Motors Corp., 55 F.3d at 805; Weinberger, 925           F.2d at 924-25, does not in some way trump the systemic interest in finality of judgments - an interest that might           be thought particularly strong in the class-action context, see Valerio v. Boise Cascade Corp., 80 F.R.D. 626,           647 (N.D. Cal. 1978) (finality considerations are "even more pressing in the class action context" because of the           number of people the final judgment affects). Thus, it does not open the door to post-judgment discovery where           there is nothing more than speculation that a fraud might have occurred.


19
Affirmed. Costs to appellees.

