                   United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 14-2380
                          ___________________________

    David P. Oetting, individually and on behalf of all others similarly situated

                         lllllllllllllllllllll Plaintiff - Appellant

                                             v.

           Glenn A. Norton, as Receiver for Green Jacobson, P.C., et al.

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                              Submitted: April 16, 2015
                                Filed: August 4, 2015
                                   ____________

Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
                              ____________

LOKEN, Circuit Judge.

       This is the fourth appeal of district court orders in cases arising out of multi-
district litigation transferred to the Eastern District of Missouri in 1999, where it was
captioned In re BankAmerica Corp. Securities Litigation, Case No. 4:99-MD-1264.
In this appeal, plaintiff and class representative David Oetting appeals the district
court’s1 dismissal of a separate class action he filed on behalf of members of the
NationsBank class alleging that class counsel Green Jacobson committed malpractice
and breached its fiduciary duty in representing the class. We affirm.

                               I. Procedural History

       After the merger of NationsBank Corporation and BankAmerica Corporation,
shareholders of both companies filed class action lawsuits alleging violations of the
federal securities laws. The cases were transferred to the Eastern District of Missouri,
where the district court appointed David Oetting as one lead plaintiff of the
NationsBank class and the St. Louis law firm of Green Jacobson as lead counsel for
the class. The litigation settled, resulting in a $333 million settlement fund for the
NationsBank class.2 We affirmed the district court’s approval of the settlement over
Oetting’s objection that it was inadequate. In re BankAmerica Corp. Sec. Litig., 350
F.3d 747 (8th Cir. 2003); see Koehler v. Brody, 483 F.3d 590, 598-99 (8th Cir. 2007).

       On the recommendation of Green Jacobson, the district court appointed
Heffler, Radetich & Saitta, LLP (Heffler), as claims administrator to distribute the
settlement fund to class member claimants. During the claims process, an employee
of Heffler conspired to submit fifteen false claims against the fund, resulting in the
payment of $5.87 million that otherwise would have been paid to members of the
class. In 2010, the district court denied Green Jacobson’s motion for leave to file a
supplemental complaint against Heffler to recover this loss. Oetting subsequently

      1
       The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
      2
       This court takes judicial notice of the record in the In re BankAmerica Corp.
Securities Litigation, as many of the facts and proceedings are relevant to this action.
See Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009) (judicial notice).
Accordingly, we grant Appellees’ motion to supplement the record on appeal.


                                          -2-
filed a separate action against Heffler on behalf of the NationsBank class that was
transferred to and is pending in the Eastern District of Pennsylvania.3

       After two distributions to the NationsBank class in December 2004 and April
2009, some $2.4 million remained in the settlement fund. Green Jacobson moved to
have the remaining $2.4 million distributed cy pres and requested an additional award
of $98,114.34 in attorney’s fees for post-settlement work. Oetting opposed the cy
pres distribution as contrary to class members’ interests, opposed the award of
additional attorney’s fees, and argued that Green Jacobson should disgorge $2 million
in fees for abandoning the class. Oetting also filed this separate class action, alleging
in four counts that class counsel Green Jacobson and three members of the firm
(collectively, “Green Jacobson”) (i) committed legal malpractice by negligently hiring
and failing to supervise claims administrator Heffler, and (ii) breached its fiduciary
duty by taking various actions that constituted abandonment of the NationsBank
class. The complaint sought damages for causing the $5.87 million fraud loss to the
settlement fund and disgorgement of the entire $60 million in attorneys fees awarded
Green Jacobson in the BankAmerica litigation.

       In the main action, the district court granted Green Jacobson’s motion for a cy
pres distribution and for a supplemental fee award and denied Oetting’s request for
disgorgement. In re BankAmerica Corp. Sec. Litig., No. 4:99-MD-1264, 2013 WL
3212514, at *1, *6 (E.D. Mo. June 24, 2013). Oetting appealed. We reversed the cy
pres award, ordering the district court to allow an additional distribution to the class
and then to consider whether a cy pres award of any remaining funds would be
appropriate. In re BankAmerica Corp. Sec. Litig., 775 F.3d 1060, 1064-67 (8th Cir.
2015). We vacated the supplemental fee award as premature prior to completion of
additional distributions that would be made after remand. Id. at 1067-68.


      3
          Oetting v. Heffler, Radetich & Saitta, LLP, 2:11-cv-04757-JD (E.D. Pa.).


                                          -3-
       In this action, Green Jacobson moved to dismiss the complaint, arguing
primarily (i) that Oetting lacked Article III standing because he “never cashed any of
the settlement checks sent to him” in the main action, and (ii) the claim for
disgorgement is barred by the res judicata and collateral estoppel effects of prior
orders in the main action, including the district court’s cy pres order denying a
disgorgement claim and granting Green Jacobson a final award of supplemental
attorneys’ fees. In his Reply, Oetting argued that his failure to cash prior settlement
checks did not exclude him from the class, that the claims of the class certified in the
main action survive even if Oetting’s claim is moot, and that the district court’s cy
pres order was pending on appeal. In a separate subpart near the end of the Reply,
Oetting argued: “If this Court finds that Oetting is not an adequate representative of
the putative class, rather than dismiss the case it should then . . . allow for the
substitution of a class representative,” citing Kremens v. Bartley, 431 U.S. 119, 135
(1977), and two lower court cases from the Ninth Circuit.

       The district court granted the motion to dismiss. The court concluded that
Oetting lacks Article III standing to assert negligence and malpractice damage claims
because he “never cashed his settlement checks, and therefore was not injured by the
fact that those checks were slightly smaller than they would have been had defendants
hired a different claims administrator.” The court held that collateral estoppel
precluded the disgorgement and class-abandonment claims the court rejected in its
cy pres order, noting that the pendency of an appeal from that order did not suspend
its preclusive effects “[u]nless and until the Eighth Circuit finds for the plaintiff class
on appeal.” Oetting moved to alter or amend the district court’s dismissal order,
noting the court had failed to respond to his request for an opportunity to substitute
plaintiffs. The district court denied the motion in part because “no motion for such
relief was ever filed.” Oetting then filed a second motion to alter or amend in which
he moved to join as additional plaintiff another original member of the NationsBank
class who had cashed both his settlement checks in the main action. Before the court



                                           -4-
ruled on that motion, Oetting filed this appeal from the final judgment and the denial
of his first motion to alter or amend.

                                    II. Discussion

       Without question, as the district court’s dismissal order acknowledged, our
remand of the cy pres order undermined the court’s dismissal of Oetting’s breach of
fiduciary duty/disgorgement claims to the extent the court relied on the collateral
estoppel effects of its cy pres order. But we need not address the effects of our
remand order if Oetting’s lack of personal standing deprived the district court of
subject matter jurisdiction over the entire case. So we will begin -- and ultimately end
-- with the unusual questions of standing presented by this class action setting.

       A. Personal Standing. To satisfy Article III standing requirements and show
that a case or controversy exists, a plaintiff has the burden to show that he has
suffered some actual or threatened injury that can be traced to the allegedly illegal
conduct and that is capable of being redressed. Keller v. City of Fremont, 719 F.3d
931, 947 (8th Cir. 2013), cert. denied, 134 S. Ct. 2140 (2014). “The party invoking
federal jurisdiction bears the burden of establishing these elements.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). At the pleading stage, Oetting’s
burden was “clearly to allege facts demonstrating that he is a proper party to invoke
judicial resolution of the dispute.” Warth v. Seldin, 422 U.S. 490, 518 (1975). This
requires careful review of Oetting’s assertion that the conduct complained of caused
him personal injury capable of being redressed. To meet this requirement, the
complaint alleged in relevant part:

          25. . . . The class members in this case are the same class
      members in the [main] Action.




                                          -5-
             46. Plaintiff brings this action as a class pursuant to Federal
      Rules of Civil Procedure, Rule 23. Plaintiff asserts his claims
      individually and on behalf of a class of all persons similarly situated,
      who are defined as all members of the NationsBank class who have or
      are to receive a distribution from the Action.

             49. . . . Plaintiff is a member of the class. The claims of Plaintiff
      are typical of those of the class. Plaintiff, as well as the other class
      members, was a member of the previously certified class. Plaintiff and
      all class members filed valid claims with the claims administrator. All
      were or are to be paid on their claims.

            56. . . . Oetting and the class have suffered damage . . . because
      $5.8 million in which Oetting and the class were to share has been
      misappropriated.

           71. . . . As a result [of Green Jacobson’s actions constituting an
      abandonment of the class], plaintiff and the class have been damaged.

(Emphasis added.)

       We do not agree with Green Jacobson and the district court that Oetting was
not injured because his only claim is that settlement checks he never cashed were
smaller than they would have been absent the conduct complained of.4 Oetting and
the class seek a new compensatory recovery, not the rewriting of checks he did not
cash. But we agree he lacks personal standing because (i) all the damages and
disgorged fees being sought would be recovered into the NationsBank class
settlement fund in the main action; (ii) the putative class represented in this case, as
defined in the complaint, is a subclass of the NationsBank class, namely, those who
“have or are to receive a distribution from” the settlement fund; and (iii) the district

      4
       The settlement distribution checks included the notation: “Cash promptly, void
and subject to re-distribution 180 days after issue date.”


                                          -6-
court’s June 14, 2004, and February 4, 2005, orders in the main action expressly
provided that further distributions from the settlement fund would be limited to
“Authorized Claimants who have cashed their checks.” By defining the class in this
case as being those who “have or are to receive” distributions from the settlement
fund, Oetting excluded himself from the class. As he alleged no injury other than a
loss to his share of the settlement fund -- which became zero when he did not cash his
checks -- he failed to allege the elements of Article III standing for a personal claim.

       Lacking a personal claim for a share of any money recovered from Green
Jacobson for the settlement fund, Oetting is not a member of the class he seeks to
represent in this separate action. “It is axiomatic that the lead plaintiff must fit the
class definition.” Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 360 (3d Cir. 2013);
see Sosna v. Iowa, 419 U.S. 393, 403 (1975); In re Milk Prods. Antitrust Litig., 195
F.3d 430, 436 (8th Cir. 1999), cert. denied, 529 U.S. 1038 (2000).

       B. Whether the Class Has Standing. The NationsBank class is a certified
class in the main action, and Oetting is a class representative plaintiff. Oetting could
have commenced this action on behalf of the entire class by seeking to invoke the
district court’s ancillary jurisdiction in the main action. See generally Peacock v.
Thomas, 516 U.S. 349, 355-56 (1996); 13 Wright, Miller, Cooper & Freer, Federal
Practice and Procedure § 3523.2 (3d ed. 2008).5 Had Oetting proceeded in that
manner, his status as class representative would doubtless have provided standing to

      5
        Oetting did not need to invoke the district court’s ancillary jurisdiction
because the Class Action Fairness Act provided an independent basis for federal
jurisdiction over a separate action. See 28 U.S.C. § 1332(d). Oetting explains that
the district court’s 2010 denial of Green Jacobson’s request to file a supplemental
complaint against Heffler was the reason he did not proceed in the main action. But
that was a discretionary ruling (exercise of ancillary jurisdiction is nearly always
discretionary), not a ruling that would have precluded an attempt to invoke ancillary
jurisdiction in this case.


                                          -7-
represent the class (assuming he continued to be an adequate representative of the
class), despite his failure to cash prior settlement checks. See In re BankAmerica,
775 F.3d at 1062-63 n.1. Moreover, while Article III demands a named plaintiff who
has standing at the time a class action complaint is filed, “mootness of the named
plaintiff’s individual claim after a class has been duly certified does not render the
action moot.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980), applying
Sosna, 419 U.S. at 402. Oetting argues that these principles, and the monetary injury
suffered by the class as a whole as a result of Green Jacobson’s wrongdoing, combine
to give him standing as a matter of law because “a certified class has an independent
legal status.”

       The difficulty with this contention, as Oetting conceded at oral argument, is
that the certified class’s “independent status” in the main action did not make it an
independent legal entity that may file claims against other parties in a new action,
even if the claims arise out of or relate to the main action. Such a new action is itself
a class action that must meet the requirements of Rule 23, including the presence of
one or more named plaintiffs with Article III standing to sue who meet the
requirements of Rule 23(a), and certification of a class that meets the requirements
of Rule 23(b) for the claims asserted in the new action. Here, Oetting did not move
to certify the class in response to Green Jacobson’s motion to dismiss, and his
complaint pleaded claims on behalf of a class which is a subclass of the NationsBank
class in the main action that may not be easy to define. See Halvorson v. Auto-
Owners Ins. Co., 718 F.3d 773, 779 (8th Cir. 2013) (“[A] class cannot be certified if
it contains members who lack standing. A class must therefore be defined in such a
way that anyone within it would have standing.”) (citations omitted). Thus, Oetting’s
contention that he should not have to engage in the “charade of recertification” is
fundamentally inconsistent with Rule 23 principles.




                                          -8-
       Oetting relies on Martens v. Thomann, 273 F.3d 159, 173-74 n.10 (2d Cir.
2011), where the court noted that the fiduciary duty of a certified class’s
representatives gave them standing to enforce a settlement agreement. At issue in
Martens was a motion to enforce filed in the original class action. Thus, the court’s
dicta was consistent with our ruling that Oetting had standing to oppose and to appeal
the cy pres order in the main action. But Oetting’s duty to represent the class in the
main action does not afford him Article III standing to assert claims against different
parties in a new action. See In re Celotex Corp., 496 F. App’x 3, 5 (11th Cir. 2012)
(certified class representative in national class action denied standing to assert class
action claims against the settlement trust in a bankruptcy adversary proceeding
because it did not personally have the claim asserted on behalf of the putative class).

       For these reasons, we conclude that Oetting’s status as class representative of
the NationsBank class certified in the main action did not, without more, provide
either Oetting or the class itself with standing to maintain any of the claims asserted
in this separate action.

       C. The Substitution Question. The normal rule is that, “if a case has only one
class representative and that party does not have standing, then the court lacks
jurisdiction over the case and it must be dismissed.” Hayes, 725 F.3d at 361 n.12
(quotation omitted); see Walters v. Edgar, 163 F.3d 430, 432-33 (7th Cir. 1998), cert.
denied, 526 U.S. 1146 (1999). Seeking to avoid this rule, Oetting argues that the
district court erred in not acting on his request that the court appoint a substitute
named plaintiff if it concluded that Oetting lacked Article III standing to bring these
claims. The district court denied Oetting’s motion to alter or amend its final order on
this ground because “no motion for substitution relief was ever filed.” In a
procedurally more typical class action, it would clearly not be an abuse of the district
court’s discretion to deny a belated motion or request for substitution on this ground.
See In re Milk Prods., 195 F.3d at 437-38.



                                          -9-
       Invoking in this very different context the principle that a district court, in
approving a class action settlement, “must serve as a guardian of the rights of absent
class members,” Grunin v. Int’l House of Pancakes, 513 F.2d 114, 123 (8th Cir.),
cert. denied, 423 U.S. 864 (1975), Oetting argues the district court had a duty to act
on his belated request that a substitute named plaintiff be found. It is true that
substitution of plaintiffs is often appropriate when a class representative’s claim
becomes moot after the class is certified. Indeed, in Kremens, 431 U.S. at 134-35,
where a statute enacted after the district court’s grant of class action relief mooted the
named plaintiffs’ claims, and other regulatory changes “fragmented” the “live” claims
of unnamed members of the certified class, the Court remanded “for reconsideration
of the class definition, exclusion of those whose claims are moot, and substitution of
class representatives with live claims.” (Emphasis added.) But whatever affirmative
duty Kremens may impose on a district court when a class has been certified -- an
issue on which we express no view -- that duty does not exist prior to certification of
the class in a separate action such as this. Here, Oetting was the single named
plaintiff in a new class action with ample notice that defendants were asserting lack
of standing as a jurisdictional defense. It was incumbent upon Oetting to determine
whether substitution might be required and, if so, to timely amend his complaint or
seek leave from the district court to do so. The court had no duty to save an
uncertified class from Oetting’s failure to file a class action complaint within the
court’s Article III jurisdiction.

                                    III. Conclusion

      For these reasons, we conclude the district court had no jurisdiction over the
case and therefore affirm the court’s judgment dismissing the complaint.
                       _____________________________




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