COLORADO COURT OF APPEALS                                       2017COA112


Court of Appeals No. 16CA1979
City and County of Denver District Court No. 16CV31444
Honorable Shelley I. Gilman, Judge


EnCana Oil & Gas (USA), Inc.,

Plaintiff-Appellant,

v.

Sally Miller; Barclay Farms, LLC; Joan Elaine Brehon; David Furlong and
Joyce Furlong, as Co-Trustees for the Janette Foote Estate; Niles Miller; White
River Royalties, LLC; Whitney Brace, as Trustee for the T.E. McClintlock Trust;
and Helen Nelson, as Trustee for the Edwin Miller Trust,

Defendants-Appellees.


                           JUDGMENT AFFIRMED

                                  Division II
                            Opinion by JUDGE FOX
                        Dailey and Bernard, JJ., concur

                         Announced August 10, 2017


Welborn Sullivan Meck & Tooley, P.C., Jens Jensen, Brian S. Tooley, Samuel S.
Bacon, Denver, Colorado, for Plaintiff-Appellant

Law Offices of George A. Barton, P.C., Stacy A. Burrows, George A. Barton,
Robert G. Harken, Overland Park, Kansas, for Defendants-Appellees
¶1    A certified class of Colorado oil and gas royalty owners (the

 Class) and EnCana Oil & Gas (USA), Inc. (EnCana), were involved in

 litigation beginning in 2005 over EnCana’s alleged underpayment of

 royalties on natural gas it produced. In 2008, EnCana and the

 Class entered into a settlement agreement that detailed the

 payment of funds to settle past claims, established the methodology

 EnCana would use for future royalty payments, and included an

 arbitration clause. The district court’s final judgment approved and

 incorporated the settlement agreement, dismissed the 2005 case

 with prejudice, and reserved jurisdiction to enforce the agreement.

 In 2016, Colorado oil and gas royalty owners Sally Miller; Barclay

 Farms, LLC; Joan Elaine Brehon; David and Joyce Furlong, as Co-

 Trustees for the Janette Foote Estate; Niles Miller; White River

 Royalties, LLC; Whitney Brace, as Trustee for the T.E. McClintlock

 Trust; and Helen Nelson, as Trustee of the Edwin Miller Trust

 (collectively Owners), purporting to act on behalf of the Class, filed a

 demand for arbitration alleging that EnCana had underpaid

 royalties owed to members of the Class in violation of the 2008

 settlement agreement. EnCana quickly filed a new case in district

 court asserting that (1) the Class ceased to exist when the 2005


                                    1
 case was dismissed with prejudice in 2008 and (2) the 2008

 settlement agreement did not authorize arbitration on a class-wide

 basis. In September 2016, the district court issued an order finding

 that the Class had not ceased to exist, deciding that the claims

 between EnCana and the Class should be resolved in class-wide

 arbitration, and entering summary judgment against EnCana.

 EnCana now appeals the district court’s September 2016 order. We

 affirm.

                           I.   Background

¶2    In the 2005 case, Miller v. EnCana Oil & Gas (USA) Inc., No.

 05CV2753 (City & Cty. of Denver Dist. Ct. Aug. 26, 2008), the then

 putative Class sued EnCana over EnCana’s alleged underpayment

 of royalties for natural gas produced in Colorado. The Class sought

 damages and declaratory relief to determine the proper method for

 calculating future royalty payments where the Class members’

 royalty agreements were silent as to the deduction of

 post-production costs from royalty payments. In 2006, after

 briefing and a two-day evidentiary hearing, the district court

 certified the Class pursuant to C.R.C.P. 23(b)(3). Notice of the




                                   2
 certification was mailed to approximately 6000 Class members and

 about 150 members opted out of the Class.

¶3    In 2008, EnCana and the Class entered into a settlement

 agreement stating that EnCana’s payment of $40,000,000 to the

 Class resolved all disputes concerning natural gas production

 through December 31, 2008. EnCana and the Class further agreed

 on a royalty payment methodology for natural gas production on or

 after January 1, 2009, allocating post-production costs based on

 the location of the well(s) processing the gas.1 The agreement

 contains the following arbitration clause:

           In the event of a dispute over EnCana’s
           payment of royalty under [the methodology for
           calculating royalties on gas produced on or
           after January 1, 2009], such dispute will be
           resolved in an arbitration administered by the
           Judicial Arbiter Group (“JAG”), with the
           Honorable Richard W. Dana as Arbitrator. The
           arbitration will be conducted in accordance
           with the rules (but not under the
           administrative auspices) of the American
           Arbitration Association [AAA] then in effect. If
           Judge Dana is unable to serve as Arbitrator,
           the Arbitrator will be designated by JAG from
           among its panel of Arbitrators. If JAG no

 1For payment of royalties on gas produced on and after January 1,
 2009, section 10 of the agreement places Class members into six
 geographically divided groups, which we refer to as “subclasses,”
 although the settlement agreement did not explicitly do so.

                                   3
            longer exists, the Parties will attempt to agree
            on an arbitrator, and if unable to do so,
            arbitration will be conducted under the rules
            of the [AAA] then existing.

 As relevant here, the agreement (1) defines “Parties” as “Plaintiffs,

 Class Members and EnCana, each of whom individually may be

 referred to as a ‘Party’”; (2) adopts Colorado law; (3) provides that it

 runs with the land; and (4) states that it is binding upon “EnCana

 and the Class Members and their respective . . . successors and

 assigns, with respect to both the current interests owned by

 EnCana and Class Members and any additional interest that either

 EnCana or Class Members acquire under the Royalty Agreements.”2

¶4    The district court preliminarily approved the settlement

 agreement, and a notice of the proposed settlement was mailed to

 the Class members informing them of the settlement terms and

 their right to object. Based upon the evidence adduced at the class

 fairness hearing, the district court approved the settlement as being

 “fair, reasonable, bona fide and adequate to the Settlement Class.”

 The district court then entered a final judgment approving the

 2 The agreement defines “Royalty Agreements” as “all instruments
 . . . conveying or reserving royalty or overriding royalty interests,
 under which any Class Member receives or has received royalty
 payments, and therefore is subject to this Agreement.”

                                     4
 settlement agreement “between EnCana and [the] Class[,] except for

 those persons and entities [opting] out of the class,” and dismissing

 the case with prejudice. The judgment states that “[f]or production

 of Natural Gas . . . occurring from the Leases on and after January

 1, 2009 and continuing for the respective lives of the Leases,

 EnCana (and its successors) shall calculate and pay Class Members

 (and their successors) royalties as set forth in the Agreement,”

 consistent with the methodology and subclasses laid out in section

 10 of the agreement. The district court’s judgment expressly

           reserves jurisdiction, without affecting the
           finality of this Final Judgment, over (a)
           implementing, administering and enforcing
           this Settlement and any award or distribution
           from the Settlement Funds; (b) disposition of
           the Settlement Funds; and (c) other matters
           related or ancillary to the foregoing.

 The judgment incorporates the settlement agreement, specifying

 that the judgment and the settlement agreement “are to be

 construed together as one Settlement between the Parties.”

¶5    In 2016, Owners, on behalf of the Class, filed a demand for

 class arbitration with JAG, alleging that EnCana violated the

 settlement agreement by underpaying royalties on natural gas

 produced since January 1, 2009. EnCana responded by suing


                                   5
 Owners, in City and County of Denver District Court case

 16CV31444, for declaratory relief. In a later motion, EnCana

 claimed that the settlement agreement did not authorize arbitration

 on a class-wide basis and requested that the district court decide

 the issue and stay arbitration. Responding to EnCana’s motion,

 Owners did not oppose EnCana’s request that the court, not the

 arbitrator, decide whether their agreement authorized class

 arbitration. The district court stayed arbitration until it resolved

 the disputed question.

¶6    Owners next moved for summary judgment on the issue of

 class arbitration, and EnCana later filed (1) a C.R.C.P. 56(h) motion

 asking the district court to decide that the Class ceased to exist

 after the 2008 dismissal with prejudice and (2) a cross-motion for

 summary judgment on the class arbitration issue. In September

 2016, the district court issued an order finding that the Class had

 not ceased to exist and entering summary judgment in favor of

 Owners, deciding that the claims between EnCana and the Class

 should be resolved in class-wide arbitration.

¶7    EnCana now appeals the September 2016 order.




                                    6
        II.   The Class May Enforce the Settlement Agreement

¶8    EnCana contends that the district court erred in finding that

 the Class continued after the case was dismissed with prejudice in

 2008. According to EnCana, C.R.C.P. 23 is a procedural tool

 facilitating the aggregation of claims and does not affect substantive

 rights or law; therefore, once the underlying case is dismissed, the

 class and its ability to bring new claims cease to exist. Otherwise,

 EnCana argues, the district court’s obligation under C.R.C.P.

 23(c)(1) — to continually and rigorously analyze whether proceeding

 as a class is appropriate — would continue beyond the case’s

 dismissal with prejudice. EnCana asserts that the district court’s

 September 2016 order lacked sufficient C.R.C.P. 23(c)(1) analysis

 regarding (1) the named representatives’ current ability to

 adequately represent the Class; (2) the current composition of the

 Class; and (3) the alleged unilateral substitutions of Class counsel.

 EnCana also argues that Class counsel did not provide sufficient

 notice of the arbitration demand to Class members. We disagree.

               A.   Preservation and Standard of Review

¶9    The parties agree that this issue was properly preserved.




                                   7
¶ 10   When deciding a motion under C.R.C.P. 56(h), a district court

  may decide a legal question “[i]f there is no genuine issue of any

  material fact necessary for the determination of the question of

  law.” We review a court’s ruling on such a motion de novo. Francis

  v. Aspen Mountain Condo. Ass’n, 2017 COA 19, ¶ 7. Also, an

  arbitration clause in a settlement agreement is part of a contract,

  the interpretation of which is a matter of law that we review de

  novo. See Allen v. Pacheco, 71 P.3d 375, 378 (Colo. 2003).

                            B.   Applicable Law

¶ 11   A district court “has inherent authority and jurisdiction to

  make such orders as are necessary to give effect to or enforce its

  prior decrees.” Mulei v. Jet Courier Serv., Inc., 860 P.2d 569, 571

  (Colo. App. 1993) (“Although the trial court had dismissed the cause

  with prejudice, it retained jurisdiction to give effect to the

  settlement order.”). Accordingly, a district court may issue an order

  dismissing a case with prejudice while retaining jurisdiction over a

  settlement agreement resolving the underlying dispute. Kokkonen

  v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994) (“[I]f the

  parties’ obligation to comply with the terms of the settlement

  agreement had been made part of the order of dismissal — either by


                                      8
  separate provision (such as a provision ‘retaining jurisdiction’ over

  the settlement agreement) or by incorporating the terms of the

  settlement agreement in the order[ — ] . . . a breach of the

  agreement” would be “a violation of the order.”); see Cross v. Dist.

  Court, 643 P.2d 39, 41 (Colo. 1982) (“A compromise and settlement

  is, in effect, a contract to end judicial proceedings.”); see also

  Rothstein v. Am. Int’l Grp., Inc., 837 F.3d 195, 205 (2d Cir. 2016)

  (“Like consent decrees, settlement agreements are ‘hybrid[s] in the

  sense that they are at once both contracts and orders; they are

  construed largely as contracts, but are enforced as orders.’”)

  (alteration in original) (citation omitted).

                                C.   Analysis

¶ 12   For two reasons, we determine that the Class survived the

  2008 dismissal. We also conclude that EnCana’s remaining

  arguments regarding Rule 23 and Class counsel fail.

  1.   The Certified Class Survives for the Life of the Agreement

¶ 13   First, the district court’s dismissal order incorporated the

  settlement agreement and reserved jurisdiction to implement,

  administer, and enforce the “Settlement and any award or

  distribution from the Settlement Funds” and to address “other


                                       9
  matters related or ancillary” to said agreement. Because

  compliance with the settlement agreement became a part of the

  order of dismissal, the district court retains jurisdiction to give

  effect to the agreement. See Mulei, 860 P.2d at 571; accord

  Kokkonen, 511 U.S. at 381; Rothstein, 837 F.3d at 205. Until the

  terms of the agreement are satisfied, the subclasses identified in the

  agreement retain the right to enforce that agreement.

¶ 14   Second, the obligations placed on the settling parties did not

  end with the 2008 dismissal. Rather, the agreement continues for

  the respective “lives of the Leases” or Royalty Agreements covered

  by the settlement agreement and expressly benefits and burdens

  successors and assigns of the Parties. See Allen, 71 P.3d at 378

  (stating that we must construe a settlement agreement according to

  the plain and ordinary meaning of its terms in a manner that allows

  each party to receive the benefit of the bargain, and the scope of the

  agreement must reflect the reasonable expectations of the parties).

  Any successors or assigns3 — who step into the shoes of a Class


  3 The identities and interests of those successors or assigns, if
  disputed, are for the arbitrator to decide. See Puleo v. Chase Bank
  USA, N.A., 605 F.3d 172, 181 (3d Cir. 2010) (“[I]n the absence of a
  threshold question regarding the validity of the arbitration

                                     10
  member concerning the royalties owed — are necessarily entitled to

  enforce the terms of the settlement agreement. See Backus v.

  Apishapa Land & Cattle Co., 44 Colo. App. 59, 61, 615 P.2d 42, 44

  (1980) (stating that an assignee of contract rights stands in the

  shoes of the assignor and may proceed in a contract action as if he

  were the assignor).

  2.   The Agreement Contradicts EnCana’s Additional Claims

¶ 15   We reject EnCana’s claim that, if the Class survived the

  dismissal, the district court had an unending and unfulfilled duty

  under C.R.C.P. 23(c)(1) to rigorously analyze the Class’ satisfaction

  of C.R.C.P. 23’s requirements. The settlement agreement effectively

  endorsed the certified Class by creating, in section 10,

  geographically based subclasses to resolve any prospective royalty

  payment disputes. By accepting the six subclasses in the


  agreement itself or the applicability of an arbitration agreement to a
  given dispute, the FAA ‘requires courts to enforce privately
  negotiated agreements to arbitrate[.]’”) (citation omitted); Coors
  Brewing Co. v. Cabo, 114 P.3d 60, 66 (Colo. App. 2004) (“[T]he
  arbitrator is the final judge of both fact and law.”). EnCana
  suggests that the Class cannot bring new claims against EnCana or
  other people or entities outside of the scope of the original
  certification order, settlement, or judgment. We agree, see
  Toothman v. Freeborn & Peters, 80 P.3d 804, 810 (Colo. App. 2002),
  and we read the arbitration demand as merely seeking to enforce
  the settlement agreement, not as advancing new claims.

                                    11
  agreement, EnCana expressly agreed to work with those subclasses

  for the life of each Lease.

¶ 16   EnCana’s arguments about the district court’s alleged failure

  to satisfy Rule 23 are not persuasive. Not only did the district court

  conduct a full class certification process — as reflected in the

  court’s exhaustive twenty-two page order4 — but EnCana endorsed

  and reformulated that class in the settlement agreement. Because

  EnCana undertook to pay the subclasses (and their successors and

  assigns) until all its duties in the settlement agreement are satisfied

  (for the “life of the Leases”), the district court did not err in declining

  to engage in any further C.R.C.P. 23 analysis after the 2008

  dismissal and judgment approving said agreement.

¶ 17   To the extent EnCana suggests that Class counsel seeks to

  represent non-Class members, the merits (or lack thereof) of the

  subclasses’ claim for prospective royalty payments (post January 1,

  2009) will be addressed in the arbitration proceeding, consistent

  with the AAA Rules, as the parties agreed. See Puleo v. Chase Bank

  4 The order references a two-day class certification hearing.
  Although the transcript of that hearing does not appear to be in our
  record, an appellant’s failure to provide a complete record allows us
  to presume the record supports the district court’s decision. See In
  re Marriage of Dean, 2017 COA 51, ¶ 13.

                                      12
  USA, N.A., 605 F.3d 172, 181 (“[I]n the absence of a threshold

  question regarding the validity of the arbitration agreement itself or

  the applicability of an arbitration agreement to a given dispute, the

  FAA ‘requires courts to enforce privately negotiated agreements to

  arbitrate[.]’”) (citation omitted).

¶ 18   It is not evident that EnCana or its counsel — who are not

  parties to the fee agreement between the Class and its counsel —

  are the appropriate parties to complain that different lawyers

  associated with Class counsel’s firm have joined the case. See

  Abbott v. Kidder Peabody & Co., 42 F. Supp. 2d 1046, 1050

  (D. Colo. 1999) (holding — where the defendants moved to declare

  void the plaintiffs’ attorney-client contract and to disqualify the

  plaintiffs’ counsel — that (1) the defendants had no standing under

  Colorado law to challenge the enforceability of the attorney-client

  representation contract between the plaintiffs and their counsel and

  (2) although courts generally refuse to disqualify an attorney for a

  conflict of interest where the attorney’s former client has not moved

  for disqualification, the defendants had standing to seek

  disqualification only because the interests of the public were so

  greatly implicated that an apparent conflict of interest tended to


                                        13
  undermine the validity of the proceedings). When the district court

  certified the Class, it necessarily determined that Class counsel

  could adequately represent the Class members. See Wininger v. SI

  Mgmt. L.P., 301 F.3d 1115, 1121-22 (9th Cir. 2002). In any event,

  EnCana provides no authority to support its objection to the

  participation of another lawyer from Class counsel’s law firm, or to

  contest the absence of one of the Class’ initially appointed lawyers.

¶ 19   We next reject EnCana’s contention that Class counsel did not

  provide sufficient notice of the arbitration demand to Class

  members in violation of their right to due process. A division of this

  court has held, and EnCana and the Class do not dispute, that the

  Class members received sufficient notice after the Class was

  certified and after the district court preliminarily approved the

  settlement agreement. See Miller v. EnCana Oil & Gas (USA) Inc.,

  (Colo. App. No. 08CA2131, June 11, 2009) (not published pursuant

  to C.A.R. 35(f)). Our review of the 2016 arbitration demand leads

  us to conclude that it does not bring claims different from those

  resolved by the 2008 settlement agreement; rather, it merely seeks

  to enforce that agreement. Therefore, no additional notice was

  required before filing the 2016 arbitration demand. If the arbitrator


                                    14
  later believes further notice is appropriate, the arbitrator can

  address the issue in the arbitration proceeding.

¶ 20   The district court’s ruling did nothing more and nothing less

  than give effect to the settlement agreement. Thus, there is no

  error.

                          III.   Class Arbitration

¶ 21   Next, EnCana argues that the district court erred in

  determining that the settlement agreement contains a contractual

  basis to conclude that EnCana and the Class agreed to class

  arbitration. EnCana contends that, because the arbitration clause

  is silent on the matter of class arbitration, the district court should

  have presumed that the parties agreed to bilateral arbitration only.

  EnCana further argues that the district court erred in granting

  summary judgment in favor of Owners on the issue of class

  arbitration because there was a genuine issue of material fact as to

  whether the parties agreed to class arbitration. We are not

  persuaded.

               A.    Preservation and Standard of Review

¶ 22   The parties agree that this issue has been properly preserved.




                                     15
¶ 23   We review a district court’s order granting summary judgment

  de novo. Lewis v. Taylor, 2016 CO 48, ¶ 13. “Summary judgment

  is appropriate only if ‘the pleadings, depositions, answers to

  interrogatories, and admissions on file, together with the affidavits,

  if any, show that there is no genuine issue as to any material fact

  and that the moving party is entitled to a judgment as a matter of

  law.’” Id. (quoting C.R.C.P. 56(c)).

¶ 24   Arbitration is a matter of contract, AT&T Mobility LLC

  v. Concepcion, 563 U.S. 333, 339 (2011); see also Taubman Cherry

  Creek Shopping Ctr., LLC v. Neiman-Marcus Grp., Inc., 251 P.3d

  1091, 1094 (Colo. App. 2010), the interpretation of which presents

  a legal question that we review de novo while applying state law.5


  5 Arbitration provisions normally deprive the district court of
  jurisdiction over certain matters related to a settlement agreement,
  but here EnCana and the Class agreed that the district court, not
  the arbitrator, should resolve their present dispute. Thus, neither
  the district court nor this court has any reason to address the issue
  of who should decide whether the arbitration clause in the
  settlement agreement refers to class or bilateral arbitration. See
  Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 (2002)
  (noting that, regarding arbitration proceedings, a court decides
  substantive issues and the arbitrator decides procedural issues
  absent “an agreement to the contrary”); but see Oxford Health Plans
  LLC v. Sutter, 569 U.S. ___, ___ n.2, 133 S. Ct. 2064, 2068 n.2
  (2013) (recognizing that “whether the availability of class arbitration
  is a question of arbitrability” remains an open question). The

                                     16
  See Jacks v. CMH Homes, Inc., 856 F.3d 1301, 1304 (10th Cir.

  2017); Radil v. Nat’l Union Fire Ins. Co. of Pittsburg, 233 P.3d 688,

  692 (Colo. 2010); Premier Farm Credit, PCA v. W-Cattle, LLC, 155

  P.3d 504, 517 (Colo. App. 2006).

                           B.   Applicable Law

¶ 25   “Arbitration is . . . a private means of dispute resolution

  wherein the parties have freedom to structure both the boundaries

  of the arbitration award and the procedures under which the

  arbitrator will arrive at his decision.” S. Wash. Assocs. v. Flanagan,

  859 P.2d 217, 220 (Colo. App. 1992); see PoolRe Ins. Corp. v.

  Organizational Strategies, Inc., 783 F.3d 256, 262 (5th Cir. 2015). A

  valid arbitration clause in a settlement agreement “divests trial

  courts of jurisdiction over all questions that are to be submitted to

  arbitration, pending the conclusion of arbitration,” but a district

  court retains jurisdiction over the remaining questions not subject

  to the parties’ agreement. Lane v. Urgitus, 145 P.3d 672, 679 (Colo.

  2006); see also Oklahoma v. Hobia, 775 F.3d 1204, 1213 (10th Cir.

  2014).


  parties also agree that the Federal Arbitration Act, 9 U.S.C. §§ 1-
  307 (2012), and Colorado law apply. The parties do not argue that
  those laws conflict here.

                                     17
¶ 26   As a part of the settlement agreement, class arbitration is a

  matter of consent. Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559

  U.S. 662, 684 (2010) (“[A] party may not be compelled . . . to submit

  to class arbitration unless there is a contractual basis for

  concluding that the party agreed to do so.”). While the question of

  what contractual basis may support a finding that the parties

  authorized class arbitration remains undecided, see id. at 687 n.10,

  it is clear that an agreement compelling the parties to submit to

  class arbitration may be implicit or explicit. See id. at 685; Jock

  v. Sterling Jewelers Inc., 646 F.3d 113, 121 (2d Cir. 2011) (“The

  [Stolt-Nielsen] Court contemplated that an arbitration agreement

  may contain an implicit agreement to authorize class

  arbitration[.]”). But, an implicit agreement to class arbitration

  cannot be presumed “solely from the fact of the parties’ agreement

  to arbitrate.” Stolt-Nielsen, 559 U.S. at 685 (concluding that there

  was no contractual basis for ordering class procedures where the

  parties stipulated that they never reached any agreement on class

  arbitration and that their agreement was silent on the matter).

¶ 27   To best effectuate the parties’ intent, “[w]e must construe the

  terms of the [arbitration] agreement in a manner that allows each


                                    18
  party to receive the benefit of the bargain, and the scope of the

  agreement must faithfully reflect the reasonable expectations of the

  parties.” Allen, 71 P.3d at 378; see also Moss v. First Premier Bank,

  835 F.3d 260, 264 (2d Cir. 2016) (“As with any contract, ‘the

  parties’ intentions control.’”) (citation omitted). In determining the

  scope of an arbitration clause in a settlement agreement, we look to

  “the wording in order to ascertain and give effect to the mutual

  intent of the parties as well as the subject matter,” the “purposes to

  be accomplished,” and the circumstances surrounding the

  agreement’s formation. Lane, 145 P.3d at 677, 679. If ambiguities

  are found in the clause, we must compel arbitration unless we can

  say “with positive assurance” that the arbitration clause is not

  susceptible of any interpretation that encompasses the subject

  matter of the dispute. Allen, 71 P.3d at 378 (citation omitted).

  Moreover, a “broad or unrestricted” arbitration clause makes the

  strong presumption favoring arbitration apply with even greater

  force. Id. (citation omitted).

¶ 28   Furthermore, we interpret an agreement “in its entirety with

  the end in view of seeking to harmonize and to give effect to all

  provisions so that none will be rendered meaningless.” Gagne


                                    19
  v. Gagne, 2014 COA 127, ¶ 53 (quoting Pepcol Mfg. Co. v. Denver

  Union Corp., 687 P.2d 1310, 1313 (Colo. 1984)). “[A] contract

  should never be interpreted to yield an absurd result.” Atmel Corp.

  v. Vitesse Semiconductor Corp., 30 P.3d 789, 793 (Colo. App. 2001),

  abrogated on other grounds by Ingold v. AIMCO/Bluffs, L.L.C.

  Apartments, 159 P.3d 116 (Colo. 2007).

                              C.    Analysis

¶ 29   Here, it is undisputed that the claims concerning EnCana’s

  compliance with the settlement agreement will be resolved by

  arbitration and that the courts, not the arbitrator, will decide

  whether arbitration shall occur on a class-wide or individual basis.6

  The only question for us, then, is whether EnCana and the Class

  authorized class arbitration in their settlement agreement.

¶ 30   As a preliminary matter, we reject EnCana’s repeated

  argument that we must reverse the district court’s ruling on class

  arbitration because this ruling depends upon the allegedly

  erroneous finding that the Class survived the 2008 dismissal. As

  discussed above, neither applicable law nor the terms of the

  6The parties agree that the duty to arbitrate is valid and that the
  court should decide their dispute over the scope of the agreement’s
  arbitration clause. See supra note 5.

                                    20
  settlement agreement support EnCana’s claim that the Class does

  not exist.

¶ 31   Where, as here, a settlement agreement explicitly names all

  members of a certified class as a party to the agreement, frames the

  pertinent disputes in class-wide or subclass-wide terms, and gives

  relief on a class-wide or subclass-wide basis, the arbitration

  clause’s context persuasively demonstrates an agreement to class

  arbitration, rather than bilateral arbitration.

¶ 32   Looking to the plain language, the settlement agreement states

  that it “is entered into by [Owners] and each member of the Class

  [and EnCana].” The agreement defines the following terms:

        “Class” means the Class certified in 2006;

        “Class Members” means “each member of the Class,

          including [Owners, and excluding] the persons and entities

          who elected to opt out of the Class in response to the Notice

          of Certification of Class Action”; and

        “Parties” means “[Owners], Class Members and EnCana,

          each of whom individually may be referred to as a ‘Party.’”

  The Class is integral in defining the disputes covered by the

  agreement and the agreement’s class-wide relief. Adopting

                                     21
  EnCana’s proffered interpretation of the settlement agreement

  would require us to ignore the class-wide framing of the disputes

  and relief and read the repeatedly used word “Class” out of the

  settlement agreement, replacing it with something like “individual

  royalty owner.” Such an interpretation contradicts the agreement’s

  plain language. See Lane, 145 P.3d at 677, 679.

¶ 33   The settlement agreement broadly provides, without limitation,

  that Class members must resort to arbitration to settle any “dispute

  over EnCana’s payment of royalty.” See Shell Oil Co. v. CO2 Comm.,

  Inc., 589 F.3d 1105, 1109 (10th Cir. 2009) (enforcing arbitration

  provisions in class action settlement agreement, which required

  arbitration of all disputes “arising from or relating in any way to”

  the agreement); see also Allen, 71 P.3d at 379 (holding that a

  wrongful death claim brought by a woman was within the scope of

  an arbitration agreement between a healthcare provider and the

  woman’s husband where the agreement covered “‘any claim of

  medical malpractice’ and any claim brought ‘[f]or any reason’”); see

  generally 1 McLaughlin on Class Actions § 2:13 (13th ed. 2016)

  (observing that, to date, “the vast majority of [AAA Clause




                                    22
  Construction Awards] have interpreted ‘silent’ clauses to authorize

  class arbitration”).

¶ 34   If EnCana were to fail to employ the methodology established

  by the settlement agreement, that failure would necessarily affect

  all members of at least one subclass, not merely an individual Class

  member. No reasonable construction of the arbitration clause of

  this class action settlement agreement results in a prohibition of

  class-wide relief. See Allen, 71 P.3d at 378 (“[T]he scope of the

  agreement must faithfully reflect the reasonable expectations of the

  parties.”). To conclude that the settlement agreement evidences

  that the parties contemplated engaging in approximately 5850

  individual arbitrations7 to resolve future disputes — rather than a

  single class (or subclass) arbitration challenging EnCana’s

  compliance with the methodology established by the settlement

  agreement to resolve the class action lawsuit — would be absurd.

  See Atmel Corp., 30 P.3d at 793; cf. Mork v. Loram Maint. of Way,

  Inc., 844 F. Supp. 2d 950, 952 (D. Minn. 2012) (concluding that

  7 Approximately 150 putative members opted out of the Class before
  the 2008 settlement. Under EnCana’s current reading of the
  arbitration clause, not only would an individual arbitration be
  required for each dispute of approximately 5850 Class members,
  but also for those of any successors and assigns.

                                    23
  where the parties agreed that the court had to order arbitration, but

  disagreed about whether collective arbitration was allowed, the

  breadth of the arbitration clause — covering “claims or disputes of

  any nature” — allowed for collective arbitration); Smith & Wollensky

  Rest. Grp. v. Passow, 831 F. Supp. 2d 390, 392 (D. Mass. 2011)

  (denying challenge to arbitrator’s award where the arbitrator

  reasonably interpreted an arbitration clause — covering “any claim

  that, in the absence of this Agreement, would be resolved in a court

  of law under applicable” law — as being sufficiently broad to allow

  for arbitration of class action claims).

¶ 35   Further, the settlement agreement repeatedly refers to “the

  Parties” in provisions addressing EnCana and all Class members.

  For example, the agreement provides that, if the district court

  “approves this Settlement Agreement, then the Parties jointly shall

  seek entry of the Final Judgment.” In comparison, EnCana and the

  Class utilized more descriptive language to refer to a specific party

  when they deemed it necessary. For example, the agreement

  contains provisions stating the following:

           “Each Party agrees to indemnify [from] all actions [that]

             the released Party may sustain[.]” (Emphasis added.)


                                     24
           “Nothing in this Agreement shall [be] construed as a

             cross-conveyance or pooling of the Royalty Agreements

             which in any manner affects the right of any separate

             Class Member to deal with their separate property

             interests in the Royalty Agreements as their sole and

             separate property without regard to the rights and

             interests of any other separate Class Member.”

             (Emphasis added.)

           “Given the absence of any reliance by one Party upon any

             representation by the other Party other than as

             specifically set forth herein, [the] Parties agree that [their

             rights and obligations] with respect to the subject matter

             of this Agreement will be exclusively as set forth in this

             Agreement and the final Judgment.” (Emphasis added.)

¶ 36   Accordingly, if EnCana and the Class had wanted the

  arbitration clause to refer to bilateral arbitration, the clause could

  have specified any or all of the following: (1) the subject disputes

  would be between EnCana and an individual Class member; (2) the

  individual parties involved in such a dispute would attempt to agree

  on an arbitrator; (3) both Parties would expressly waive class

                                     25
arbitration; or (4) the arbitration would be conducted in accordance

with the AAA rules then in effect with regard to bilateral arbitration

and exclude the rules on class arbitration (the current AAA rules

have been in effect since 2003, almost five years before the parties

entered into the 2008 settlement agreement).8 See AAA,

Supplementary Rules for Class Arbitrations (effective Oct. 8, 2003),

https://perma.cc/RH8F-VQFB; see also Fensterstock v. Educ. Fin.

Partners, 611 F.3d 124, 129 (2d Cir. 2010) (noting that the

arbitration clause provided that arbitration “[c]laims must proceed

on an individual (non-class, non-representative) basis”), cert.

granted, judgment vacated, and case remanded on other grounds

sub nom. Affiliated Comput. Servs., Inc. v. Fensterstock, 564 U.S.

1001 (2011); La. Health Serv. Indem. Co. v. Gambro A B, 756 F.

Supp. 2d 760, 768 (W.D. La. 2010) (recognizing that sophisticated

parties can write an arbitration clause to “specifically state that no

class arbitration shall be permitted”); Bonanno v. Quizno’s

Franchise Co., No. 06-CV-02358-CMA-KLM, 2009 WL 1068744 (D.


8Although the agreement’s failure to expressly prohibit class
arbitration cannot be the sole basis for concluding that the parties
agreed to class arbitration, Stolt-Nielsen S.A. v. AnimalFeeds Int’l
Corp., 559 U.S. 662, 684 (2010), it remains a factor to consider.

                                  26
  Colo. Apr. 20, 2009) (examining a class action bar in a contract and

  concluding that it was not unconscionable under Colorado law).

  Instead, the arbitration clause reads that a future

             dispute will be resolved in an arbitration
             administered by [JAG] . . . [and] conducted in
             accordance with the rules . . . of the [AAA] then
             in effect. . . . If JAG no longer exists, the
             Parties will attempt to agree on an arbitrator,
             and if unable to do so, arbitration will be
             conducted under the rules of the [AAA] then
             existing.

  Construing the agreement as a whole and seeking to harmonize all

  provisions, we conclude that the agreement’s plain language

  evidences the parties’ intent to allow class (or subclass) arbitration.

  See Gagne, ¶ 53.

¶ 37   Unlike the agreements in Stolt-Nielsen, 559 U.S. at 684, and

  its progeny, the arbitration clause at issue exists in the context of a

  class action settlement agreement that designates members of a

  certified class into six subclasses on the basis of geographic

  markers in order to address prospective royalty payments and

  related disputes. The arbitration clause is not part of a bilateral

  contract, such as one between an individual consumer and a

  corporate entity. See, e.g., Bonanno, 2009 WL 1068744, at *2. The



                                    27
  settlement agreement resolved the Class’ claims on a class-wide

  basis by establishing a royalty payment methodology dependent on

  six designated subclasses of Class members and their successors

  and assigns — not by establishing approximately 5850 individual

  methodologies specific to each Class member.9 Therefore, the

  parties’ intent to resolve their past and future disputes on a

  class-wide or subclass-wide basis is also apparent from the

  circumstances of the settlement agreement’s formation. See Lane,

  145 P.3d at 679.

¶ 38   Because the settlement agreement’s language and context

  evidence the parties’ contemplation of class arbitration, we agree

  with the district court that summary judgment was proper on the

  issue of class arbitration because there was no genuine issue of

  material fact and Owners were entitled to judgment as a matter of

  law. See Lewis, ¶ 13 (citing C.R.C.P. 56(c)); Premier Farm Credit,

  155 P.3d at 517 (reasoning that the interpretation of a contract

  presents a question of law).

  9An arbitration clause’s mere presence in a class action settlement
  agreement may not be sufficient to demonstrate the parties’
  authorization of class arbitration. But, as explained above, there is
  much more than the clause’s mere presence in the class action
  settlement evidencing an agreement to class arbitration here.

                                    28
                           IV.     Conclusion

¶ 39   The judgment is affirmed.

       JUDGE DAILEY and JUDGE BERNARD concur.




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