Miranda L. Day v. Persels & Associates, LLC

JORDAN, Before PRYOR and Circuit PRO,* Judges, Judge. District * Pro, Nevada, Philip sitting Judge Honorable M. United States Dis- trict for the District of judge quired for a to enter

PRYOR, Judge: Circuit 636(c). But judgment final section that we requires This resolve judgment we vacate first, magis- whether a issues: two main discretion magistrate judge abused his subject-matter jurisdiction trate found, eviden- adequate when he without judgment class action to enter a tiary support, the defendants could obtaining the consent of without first satisfy significant judgment, and we class; second, not absent members proceedings. remand for further his whether a abused discretion found that seven defendants when he I. BACKGROUND financially satisfy unable would be no evidence about though even Services, Inc., credit CareOne offered of position of six the defen- financial purported counseling services that to allow Day dants had been introduced. Miranda payments pay debtors to lower their and management sued debt businesses several off their debts. In Mi- November employees and of those busi- individual in credit Day randa enrolled CareOne’s of herself and a nesses on behalf state- part As that ar- counseling services. of 10,000 wide of about consumers. class CareOne, Day with received rangement Day to al- and the defendants consented agreement a and entered retainer with a to enter final magistrate judge low Associates, LLC, firm Ruther & a law in the class action. 28 U.S.C. Ruther, managed Neil J. and with Car- 636(c). Day and then the defendants eOne for debt Under resolution services. magistrate informed the monthly agreement, Day would make agreement, had reached settlement payments to and Ruther & Associates Car- which of expanded definition the class paying eOne instead of her creditors. 125,000 nationwide of consumers & and Ruther Associates CareOne would most and released of the claims of that in ac- accumulate these funds an escrow exchange monetary for no relief Ruther count. & Associates and CareOne for the members. At a fair- negotiate Day would then on behalf with agreement, hearing ness on her her pay- creditors settle debt with Day argued and the defendants that the from The ments the escrow account. financially defendants would be unable agreement also provided that Ruther & satisfy judgment, but the evidence in the and Associates CareOne would deduct supported record the conclusion that legal percent fee the amount of defendants, one Persels & Associ- Day’s agree- debt before she entered ates, LLC, financially would be unable monthly payments. ment from her satisfy significant judgment. mag- agreement provided be fees could istrate judge concluded the settle- higher complexity rep- based on the fair, agreement adequate, ment was and Ruther resentation. When retired reasonable even it did not though provide Jimmy he firm B. transferred the law any monetary relief to the absent class Persels, and law firm Persels renamed the members because defendants would Associates, Persels & LLC. Both law firms satisfy a significant unable to judgment. Freedman, Robyn attor- employed R. We conclude that Florida, in the ney licensed assist subject-matter enter a services, counseling credit and Freedman judgment because absent class mem- assigned Day. bers are not re- to represent whose was by designation.

Day monthly payments Act, of Trade paid six Practices Repair Credit January from to June 2008 for a Act, Organizations $212.39 and based several $1,274.34. payment total None of the causes of action under common law. The money Day paid to the law firms was provide defendants who did not legal rep- Instead, disbursed to her creditors. resentation, CareOne, including moved to paid for funds fees law firms. As stay against the action compel them and nonpayment, Day’s result one credi- arbitration. The granted district court April Day tors sued her on motion to compel arbitration stayed tried to contact both CareOne and Ruther against the action all of those defendants immediately being & Associates after except CareOne. The district court con- response inquiries, Day served. to her any cluded that against claims CareOne received an email April from Freedman on that arose from agreement the retainer 21, 2008, that told her that Freedman had stayed could not be agree- because that reviewed her file working and would be ment did not include an provi- arbitration paralegal with the negotiators at CareOne Day sion. legal service defen- disputes to resolve her with her creditors. dants, CareOne, including then consented Day received no further assistance from to have a judge conduct all n any attorneys CareOne or or law proceedings and to allow the firms, judgment and default was entered judge See judgment.’ to enter a final against July her on 2008. After the 636(c). U.S.C. judgment, court entered a default Day re- Day filed an amended complaint on be- ceived a form answer to the complaint of 10,000 half of herself and similarly about her creditor that stated that it had been situated Florida residents. Fed.R.Civ.P. prepared by or with the assistance Le- 23(b)(3). complaint The amended added Line, gal Advice LLC. Legal Advice Line as a defendant. In her July another Day. creditor sued Day complaint, alleged amended that the again CareOne, She tried contact the legal service defendants were liable to her firms, law and Freedman. A CareOne and the class under Repair the Credit representative Day assured that CareOne Organizations Act and several causes of matter, would take of the care but Car- action under common law. eOne, Freedman, and the law firms failed Day to assist in that Day matter. filed for Eighteen days Day after filed the bankruptcy July complaint, Day amended legal and the ser- defendants, including Legal vices Advice CareOne, Day sued Persels & Associ- Line, notified the court that had ates, Associates, Persels, Ruther & Ruth- agreement, reached an in principle on the er, Freedman, companies several that had resolution of the that they case and intend- provided debt settlement services but not agreement ed to enter final settlement her, legal representation to and one indi- days. Day about 60 legal and the services vidual, provided who had debt settlement defendants then entered a settlement services Day to her. sued on behalf of agreement. agreement The settlement 10,000 and a similarly herself class situ- persons defined the class as all in the ated residents of Florida who sought United States who agree- had entered counseling credit services from CareOne. 23(b)(3). ments legal concerning for advice debt Fed.R.Civ.P. In her complaint, legal with the Day alleged that the debt service defendants on or management April except defendants were liable to her and the class after those consum- the Deceptive Florida and Unfair in a ers who were class members class, would not District of out of settlement in the Eastern pending action class, pursuing them individual The as defined bar from their Washington. 125,- against legal over agreement, included claims service defendants. settlement mem- twenty-five 000 absent members. Three and hundred opted of the class. bers out agreement limited the The settlement defendants to ability legal service class members The notice also informed a client who entered collect fees from object proposed procedure management agreement retainer debt explained The notice settlement. 1, 2010. Under the services after October approval hearing final would be “before legal agreement, service defendants Wilson,” Magistrate Judge Thomas G. one these could collect fees from clients the notice not inform class members did negotiated after the defendants set- Day magis- had consented to have the with that client’s creditor. The tlement pro- trate a final enter legal agreement required services any vide other notice that the modify agree- their retainer defendants to judgment. would enter a that the client ment to disclose amount members, including Raymond Five class establish pay legal fees would Gunn, Attorneys General Con- processes seeking to ensure clients necticut, Florida, Maine, York, New attorney able the assistance of were Virginia objected West to the settlement attorney within a communicate with agreement. objection, argued In his Gunn agreement included reasonable time. agreement was not $100,000 Ameri- cy pres payment fair, adequate, and reasonable because the agreement can Bar Foundation. re- monetary received no relief legal that the services defendants quired overly in return for an release broad pay administering costs of settle- valuable, potentially claims that could be $5,000 and payment ment incentive the cy pres inappro- that distribution was Day. agreement provided The that the priate, that the American Bar Foundation legal pay defendants attor- services would was an even if a inappropriate recipient cy $300,000 ney’s up fees and that the warranted, pres distribution were and that complaint preju- would be with dismissed attorney’s payment the fee and incentive agreement provided dice. The no mone- justified light could be the of the members, tary relief to the absent the result achieved for class. any released claims that an absent mem- against legal ber had the defen- services During the week before settlement dants. hearing, Day legal and the services defen- separate dants filed for final ap- motions conditionally

The certi- proval agreement, the settlement and class, appointed Day’s fied counsel as explained the motions that the settlement counsel, hearing, class scheduled fairness had been response revised Gunn’s approved notice of proposed class ac- First, objections ways. in two the revised tion, granted preliminary and approval to agreement legal did not release claims agreement. the settlement The that were to the al- malpractice unrelated notice the class and sent action Second, legations complaint. in the percent settlement to of the over agreement recipient changed revised attorneys general of ev- and cy pres payment from the American ery Washington. state The except notice they organizations Bar Foundation to two with informed class members that could that, opt they opted purposes closely aligned out of class and if more with the Day’s members of the class. motion matter which it was required pay $18 approval provided stated that information million and that Persels & Associates still during discovery informal established owed million agreement. under that $14 pay the defendants would be unable to a Ruther averred that the amount owed un- or judgment. substantial settlement der that agreement was secured all assets of the At firm. Ruther also hearing, the fairness class counsel averred argued ap- that the settlement should be CareOne had modified software at his proved because it held the defendants ac- request and that he had been told that the objector countable for their actions and no $350,000. cost of this modification exceeded had offered better solution. Class coun- Ruther’s declaration included no additional sel also asserted few of the class information about the financial condition of objected members had or chosen to be defendant, any averred, but Ruther had excluded from the and that it was declaration, that, previous the best “[t]o any judgment uncertain if could be collect- of knowledge, understanding [his] and be- ed. the district court asked When lief,” Ruther, Persels, and Freedman inquiry counsel what he made into collecta- satisfy would be unable to a judgment bility, responded class counsel that he had “are married and as- [their] inquired collectability about and relied on sets are jointly spouses held with their and response legal service defen- protected levy therefore from or exe- dants. Counsel for Persels & Associates cution.” recoveiy also stated that the of a judge certified the class was doubtful because Persels & Associates approved agreement. the settlement years had suffered net losses for two that, magistrate judge explained separate owed million on a al- $14 agreement. Counsel for though agreement CareOne asserted the settlement provided that, settled, adjudi- if the matter was not relief, monetary agreement no was against delayed cation CareOne would fair, adequate, and reasonable because of because it intended to denial “(1) ability of the Class members to compel the motion to arbitration. (2) opt agreement; out of the settlement inability the financial of the defendants to argued Gunn that the court should award, pay meaningful much less to re- approve argued settlement. Gunn (3) spond large judgment; my agreement required settlement complete ability confidence in in- the and relinquish members to rights valuable tegrity no of ... counsel....” monetaiy compensation. He ar- gued injunctive the relief failed magistrate judge The applied then the compensate the required class because it following six factors to determine whether legal that the service defendants com- fair, adequate, the settlement was and rea- ply regulations. with federal sonable: hearing, managing After the the mem- (1) (2) trial; the likelihood of success at Associates, Ruther, ber of Persels & filed a (3) range possible the of recovery; the declaration about the financial of condition point on range possible or below the of Persels & Associates. Ruther averred fair, recovery at which a is settlement that Persels & Associates had sustained a (4) reasonable; adequate and the com- $5,857,269 during net loss of the calendar plexity, expense, litiga- and duration of years of 2010 and 2011. Ruther also (5) tion; averred that the substance and amount of Persel & Associates had en- (6) settlement; a agreement opposition tered settlement another and the the defen- legal when he found that service at which the settle- proceedings stage of financially a satisfy is achieved. unable to ment dants were judgment. significant “recov- judge stated that magistrate The even if the Class is ery is not certain Subject- Had Magistrate Judge A. The trial, may not at since successful Enter a Matter Jurisdiction to judgment” to collect on the because able Judgment. Final facing fi- “the law firm defendants [are] The hardship.” nancial jurisdic- our discussion of our We divide agreement the stated that settlement then First, explain we parts. tion two “the fair because likelihood was juris- statutory magistrate judge the the is far from succeeding on merits Class Second, judgment. a final diction enter explained The magistrate judge clear.” judge had explain that the we recovery” “range of actual was jurisdiction enter constitutional recovery” “from zero to a minimal judgment. would be able to the class members judgment, sup- significant collect a which The Had Jurisdic- Magistrate Judge ported point the conclusion that “the tion, Magistrates Under the Federal reasonable, fair, is which settlement Act, Judgment. to Enter Final monetary no adequate and includes recov- Magistrates provides Act Federal magis- ery by the members.” The Class that, “[u]pon parties,” the consent of the likely trate also concluded that “may any or all magistrate judge conduct litiga- further complexity expense and of jury nonjury in a civil mat- proceedings supported approval agree- tion entry and in the ter order of ment, that amount of the substance and case, when specially designated exercise opposition disapproval” warrant “d[id] jurisdiction by such court or district agreement, stage of 636(c)(1). he courts serves.” 28 U.S.C. proceedings which settlement had magistrate judge After the enters final supported approval been achieved judgment, aggrieved “an appeal magistrate judge agreement. cer- class, directly appropriate States tified the awarded class counsel United $300,000, Day $5,000. 636(c)(3). and awarded court of appeals.” U.S.C. The National Ad- Association Consumer II. OF STANDARDS REVIEW vocates, curiae, argues amicus that the governed by two This jurisdiction lacked be- We our standards review. review sub are par- cause ject matter de Belleri novo. never ties section States, United entry judgment by sented to the Cir.2013). approval We review the magistrate judge, disagree. but we in a class for abuse action conclude, Third We as have the Faught v. Home discretion. Am. Shield Circuits, that class mem Seventh absent (11th Cir.2011). 1233, Corp., 668 1239 F.3d “parties”

bers are not whose consent is III. DISCUSSION magistrate judge to required for a enter a 636(c). final under section See parts. divide discussion in two We our Dewey Volkswagen Aktiengesellschaft, v. First, explain that the magistrate we (3d 170, Cir.2012); 681 F.3d 181 Williams subject-matter jurisdiction to enter a Lease, Inc., Second, Capital v. Gen. Elec. Auto 159 judgment. explain that we (7th also, 266, Cir.1998); 269 see the abused his discretion Wil-

1317 Rubenstein, al., Newberg on of liam B. et The fifth edition Black’s Law Dictio- (“Class nary, published year are a the same Actions 1:1 actions Con- Class gress the relevant language, or added ex- representative litigation. form of One plained ‘party’ “[a] to an action ais representatives litigate on be- more class person designated whose name is rec- members, those class and those half of plaintiff ord as or defendant.” Black’s are outcome class members bound the (5th ed.1979). Dictionary Law 1010 representative’s Our litigation.”). Dictionary Black’s Law also made clear supported by ordinary is conclusion the “party” general, that the term “[i]n means meaning of in legal “parties” the term right having proceed- one the control 1979, usage, presumption of consistent defense, ings, to make to adduce and practical approach interpreting witnesses, cross-examine and to “part/’ Supreme adopted by the term judgment,” “party” from and that “refers Scardelletti, 1, Devlin Court in v. against whom is legal those or suit 7-14, 2005, 2009-13, 122 S.Ct. L.Ed.2d brought.” Id. Absent class (2002). designated on record or plaintiff as in Congress a stat leaves term When defendant. Absent class or- members also undefined, ‘give ute “we must it its ordi dinarily power proceed- lack control nary meaning,’ keeping in the con mind suit or ings. brought “by And a is not text of the statute.” States v. United Instead, against” class members. Jimenez, 1305, 705 F.3d Cir. the Federal Rules of Civil pro- Procedure 2013) Santos, (quoting United States vide that or more members of “[o]ne 2024, 128 S.Ct. may representative be sue sued (2008)). “And when law L.Ed.2d all parties on of members” behalf when subject, meaning ordinary legal is the is to requirements for a class action have been ” Bryan & be Antonin Scalia expected.... 23(a). met. Fed.R.Civ.P. Garner, Reading Interpreta A. Law: The (First) Judgments, The Restatement (2012). Legal To inter tion Texts 73 only version which was the available when context, it pret “part/’ the term “must Congress ex- language, added relevant [ordinary meaning given legal] be [it] class action an plained that is illustra- “[a] adopted.” had when text was Id. at tion of a situation where it is not feasible whose persons all interests ordinary legal meaning of the term action to parties affected be made “party,” Congress when the rele- added (First) Judgments it.” Restatement language of section vant (1942). 86 cmt. b And Restatement “parties” that the term excludes suggests (First) that, clear as the made Seventh Mag- absent class members. See Federal noted, “[generally speaking, Circuit has 96-82, 2,§ ofAct Pub.L. No. istrate not ‘parties’ absent class members are be- (1979). 93 Stat. This conclusion being fore the the sense of court able by the version supported contemporaneous Williams, direct litigation,” Dictionary, contempo- Law Black’s expense difficulty “the Judgments, First Restatement of raneous who making pei’sons all have interests Judgments Restatement of outweigh the Second to it proceeding years three published desirability depriving per- after the addition of not normal language, the relevant and a decision sons of of action or of defenses causes an years opportunity the Court six after the without them to Supreme giving (First) 636(c)(1). heard,” Judgments to section Restatement of amendment (1942). was unneces- by magistrate judge, ment a In of 86, the absence cmt. b repre- sary personal for court to exercise the class a state parties, as class members a plaintiff, “[Requiring a rule sentative, jurisdiction named must is a who request affirmatively of all.” Id. inclusion plaintiff to act on behalf to “purport of probably impede prosecution the would (Second) Judg- of The Restatement an involving aggrega- actions those class years ments, published three which was claims, a of where tion small individual portion of section after the relevant to required of claims are large number 636(c)(1) added, follows adhered as to was bring it suit.” Id. make economical to “party” the term a understanding the of Congress that suggest These authorities the expressed class action had been excluded class members when (First): Restatement “parties” the in section used term a an action party A who is not person ordinary legal meaning of because the party is a is represented but who class members. “parties” excluded absent by and to the benefits of bound entitled Ecological Corp., also Sci. See Pearson though party. as he were (5th Cir.1975) 171, (referring by party A is who person represented “nonparty to absent class as members a class representative is ... of [t]he members”). situated, persons similarly designated as court, approval such with “parties” in reading Our of the term person which the is a member. 636(c)(1) to section exclude absent (Second) “pre- is also supported Judgments Restatement (Sec- 41(l)(e) (1982). given sumption that term is used The Restatement ond) throughout thing mean the same a stat- explained representa- that the class Thomas, 474, authority, “the ute.” See Barber v. 560 U.S. requisite tive had (2010) 2506, 2499, generally authority, par- 130 S.Ct. 177 L.Ed.2d 1 exclusive Gardner, repre- ticipate (quoting as a on behalf of the Brown v. § 41 a. person.”

sented Id. cmt. 130 L.Ed.2d 462 S.Ct. (1994)). “par- 636 uses the word Section Supreme And the decision of the Court (c)(1) places: ties” subsection several Shutts, Phillips Petroleum Co. v. requires parties” “consent of the L.Ed.2d 628 jurisdiction by a magistrate the exercise of (1985), years six after addition of the (c)(2) action; judge civil in a subsection 636(c)(1), portion relevant of section also that, provides judge if a des- magistrate is that, suggests purposes least for of the jurisdiction, ignated clerk to exercise “the management litigation, an absent shall, is of court at the time action member who has not intervened is filed, availability notify parties Shutts, Supreme party. of a to exercise such representative Court held a class (c)(2) jurisdiction”; pro- subsection file a choose to class action in a that, par- vides after “decision of the personal would otherwise have ties communicated the clerk [has] be[en] jurisdiction over the absent class member court[,] ... court district long so notice provided sufficient magistrate judge may again advise the they the absent class members and are availability parties of the given opt opportunity out. Id. at 811-12, judge, doing, but in so shall also advise the 105 S.Ct. at 2974-75. The Court free withhold con- explained procedure, that an opt-in similar sent without adverse substantive conse- requirement that each absent class (b)(1)(c) quences”; states entry judg- member consent to subsection supported by who been also pragmatic approach a has as- the that evidentiary defining “party” hearings, adopted by but the term signed conduct Supreme a “shall file his the Court in Devlin. In that judgment, to render deci- sion, that, the Court in findings explained and recommendations proposed class “[njonnamed action, copy with the court shall forth- class members ... ... and may parties purposes be for parties.” be mailed to all U.S.C. some and not with (c). others,” 636(b), to interpret ‘party1 If we were the for and label “[t]he does “parties” provision characteristic, in to not indicate an word the consent absolute members, rather a applicability include absent class we would conclusion about the in interpret “parties” procedural may of various rules that also word differ Devlin, provisions of 636 to include based on context.” other section U.S. at 9- 10, 122 pre- class on the S.Ct. at absent members based 2010. Court then sumption consistently explained that a used word is absent class members are throughout a But to apply parties purposes statute. treated as some “to for “parties” simplify litigation involving large definition of the word broad number throughout greatly would in- class statute of members with similar claims.” Id. actions crease the costs of class and the at S.Ct. at 2010-11. The Court explained on the Under subsection rule that burdens courts. absent (b)(1), responsible parties the court class pur- would members are not for the notifying all absent of a of of pose diversity members class “is likewise recommendations report justified by of a mag- goals of class action litiga- judge. istrate And if absent class tion” because “[e]ase of administration of adjudication members consented to class actions compromised by would be judge, having their claims citizenship consider the of all required, “considering clerk of court would be class members” all (c)(2), notify subsection those members for purposes destroy absent these would Id., availability diversity class members of mag- almost all actions'.” jurisdiction. judge to such 122 S.Ct. at 2011. istrate exercise (c)(3) sure, beTo subsection instructs that purposes of class actions support aggrieved party may appeal directly “an to the exclusion of appropriate ap- States court of United 636(c). “parties” from the term section 636(c)(3), peals,” Supreme id. and the practical standpoint,” “From a the inclu- that, precedents, Court has held under its sion absent class members as absent class member who unsuccessful- 636(c) virtually under section “would elimi- objects to a ly proposed 636(c) nate referrals settlement, approval actions, in all judges potential class be- Devlin, at 2012. cause would de transform all such facto Supreme But the Court Devlin did not ‘opt-in’ style eases into actions and funda- purport meaning determine the of the mentally change capacity judg- “party” in any provision term section ... ment to bind both sides the absence purpose For the of the consent 636. re- Williams, express consents.” 636(c), quirement section absent class at 269. Such a decision would not serve accurately regarded members “are more “goals litigation” of class action includ- having than full something less ing “simplif[ication] litigation involving [of] Williams, See 159 F.3d at status.” large of class members with number claims” of administra- “[e]ase Our decision that absent class members similar Devlin, “parties” S.Ct. at under section tion.” 1320 1305, LLP, 1309 personal juris- of Touche 361 F.3d In the context

2010-11. Cir.2004). explained agree diction, Supreme Court has And our sister circuits the to affirmatively a “[requiring plaintiff treating to absent that Devlin is limited impede probably request inclusion would for purpose class members the in- prosecution of those class actions the objected only to a appeal when of small individual volving aggregation an approved by the district court. settlement claims, a number of claims are large where See, e.g., Crowley, F. Trust v. Robert Booth to bring make it economical required to (7th Cir.2012) (“Devlin 314, 687 F.3d 319 812-13, Shutts, at 472 U.S. 105 suit.” a holds that a member of class certified in benefit offered “[T]he S.Ct. at 2975. 23, under Rule who asks the district court magis- a consent to trial before return for settlement, a in- approve not to need not of an earlier prospect trate the to an appeal tervene in order adverse deci- form of case resolution than trial or other sion.”); Skilstaf, Inc. v. CVS Caremark judge.” a district could be arrived at (9th Cir.2012) 1005, 1019 Corp., 669 F.3d Dessem, The R. Role Fed- Lawrence (“In Devlin, consid- Supreme Court Reform, eral in Civil Justice Magistrate non-named, ered whether (1993). 799, 67 St. L.Rev. John’s settlement, objects to a member who earlier, potentially benefit of an less ac- opt who cannot out because the class expensive, adjudication likely is most to be 23(b)(1), tion was certified under Rule substantial when a class action “involv[es] appeal objection must an intervene claims, of small individual aggregation court.”); Abeyta overruled district are re- large where a number claims 792, City Albuquerque, 664 F.3d quired bring to make it economical to (10th Cir.2011) (“[T]he exception Devlin Shutts, 813, suit.” at 105 S.Ct. at 301, Ortiz, the Marino 484 U.S. [v. 2975. (1988)] 586, rule will 98 L.Ed.2d 629 in holding limitation on the Devlin apply nonparty where the has members ... “nonnamed who unique litigation interest and be- objected hearing,” have ... at fairness comes involved of that resolution 2013, at 122 S.Ct. at interest in a timely fashion both at that, supports the conclusion at least when appeal.”); district court level and on In re participated have not class members Orthopedic Bone Screw Prods. Liab. Li- proceedings, absent class members (3d Cir.2003) n. tig., 350 F.3d 636(c). Devlin, parties under section (“Objectors qualify ... do not aas explained that to Court refuse to allow purposes appealing original set- [an] objected class member who tlement,” objected when at they “neither hearing appeal settlement at a fairness hearing appealed the fairness nor the set- approval of the settlement “would de- tlement, final.”); which is now In re Gen. prive pow- nonnamed class Litig., Am. Ins. Co. Sales Practices Life to preserve er their own interests in a (8th Cir.2002) (“Devlin 799, 800 them, settlement that will ultimately bind appellate rights of an un- concerned despite objections expressed their before challenged named class member who court.” trial Id. 122 S.Ct. at mandatory fairness in a settlement have explained, We “Devlin held action.”); Lupron Mktg. In re & nonnamed members class actions cf. Litig., 677 F.3d 29-30 Sales Practices timely objected who have to a class settle- (“The (1st Cir.2012) ... becomes question objec- may appeal ment the denial of their Devlin, excep- whether which created an moving tions first intervene.” without AAL Yield Fund tion for unnamed have High Bond v. Deloitte & class members who objected agreements, to settlement ex- Devlin could the approval of a tends to this situation which unnamed though even objected he had objected cy class members have pres hearing fairness “would deprive[d] [have] distribution.”). No circuit court has con- nonnamed class members of power requires cluded that Devlin a federal court preserve interests,” them own and re- passive to treat a absent class member as moved unnamed class members’ “only any a purpose. reading This of means of protecting from be- [themselves] light Devlin makes sense in the of the ing bound by disposition a of [their] general that, rule when absent class mem- rights.” 10-11, 536 at U.S. 122 S.Ct. at bers have not attempted participate to in litigation, those “absent class Absent class members would not be de- are not ‘parties’ before the court in the prived only protect means to their of being sense able to direct litigation.” adjudication interests in before an Article Williams, 159 F.3d at 269. III judge if we were to conclude that argue consumer advocates that Dev- parties are not within the meaning of sec- suggests lin that absent class members 636(c). tion Absent class members would 636(c) are parties under section instead retain at options least three right “without a to consent individually, protect rights adjudication their to the absentees are plain- bound to the named their by claims an Article III when a relinquishment tiffs of their rights to an class is certified and plaintiff the named adjudication before an Article III judge,” has adjudication consented to by magis- a but the absent class members in this case (1) judge: trate as the Seventh Circuit were not bound the same sense that the Williams, explained in absent class mem- unnamed class member in Devlin was bers “apply could to the district court to Devlin, bound. the Court held “that 24(a), intervene under Rule ... become nonnamed class members ... who have parties] lawsuit, to the and then exercise objected timely in a approval manner to right to [their] withhold [their] consent settlement at [a] fairness hearing [a] have proceed before the judge,” 159 power bring appeal an without first (2) 269; F.3d at unlike the absent class 14, intervening,” 536 at 122 U.S. S.Ct. at Devlin, member the absent class mem- “[wjhat explained is most actions, many bers in including this important to this case is that nonnamed one, opt could out of a settlement and not class members are proceed- by be bound entered ings in being the sense of bound Devlin, non-Article judge, III see settlement,” at 122 id. S.Ct. at 2011. 10-11, 2011; (3) at at “un- The Court observed that to refuse to allow try named class member[s] could to show objected class member who had in a collateral attack that the decision to settlement at a hearing fairness proceed before a judge was a approval of the settlement “would de- (or, matter on potential which there was a prive nonnamed pow- class members of the record, in the light fully developed preserve er to their own interests actual) an significant intra-class conflict them, ultimately will bind and that the notice the re- absentee[s] despite expressed objections their before inadequate ceived was to inform [them] the trial court.” Id. The Court also ex- conflict,” Williams, 159 F.3d at 269-70. plained that this result was especially nec- As to the essary option, although first we have “petitioner because the had no abili- ty opt out of question, the settlement.” Id. A addressed the see Trad- Gen. holding that the ing, unnamed class member in Handling Inc. v. Yale Materials Devlin, (11th Cir.1997) unacceptable.” [they] find[]

Corp., 119 F.3d 10-11, this this court 122 S.Ct. at 2011. As (“[assuming arguendo of latecom- explained, applies the consent has Devlin require Court would ers____”), of the federal judg view general “parties actually who are bound that, ... the consent of ment, “without who [absent members] courts is ‘intervenors’, magistrate judge’s order by the merely could have been bound report recom- has effect High AAL Bond judgment.” See Yield who judge, upon to the district mendation Fund, 1310; Gautreaux cf. must review de objections filing Auth., Hous. Chi. recommendation,” N.Y. Chinese novo (“Devlin Cir.2007) ... reflects concern Enters., v. U.E. Programs, TV Inc. that, un opportunity appeal, without (2d Cir.1993); 21, see also Jaliwa- F.2d 25 have class members will no other named (7th States, 221, 945 F.2d 223 la v. United a the terms of accept recourse than to Cir.1991) (“Without consent interve- [from of pursuit to forfeit further settlement and nors], power had no to en- claim.”); P.A.C.E. v. Sch. Dist. their of 12 judgment.”); appealable ter an (8th Cir.2002) 341, City, Kan. 312 F.3d 343 al., Wright, Alan et Federal Prac- Charles (“[P.A.C.E.] Devlin, only on which is relies 1997) (2d ed. tice 3071.2 and Procedure point challenge on certifica [in not (“If obtained, not these consents are added a final of involved class] tion parties, like others who have not con- any case.”). approving order sented, any option nullifying retain the of The absent class members could have been judgment ground on the that resulting by plaintiffs named bound consented.”). practice And the never jurisdiction of a but magistrate judge, in some district courts in our at least in they also could have avoided result for a Circuit has been ways separate the three discussed earlier. report draft a and recommendation for argue consumer advocates district court when a motion to intervene is in “parties” we should read term sec filed because “a motion to intervene is a 636(c) to exclude absent class mem tion dispositive ultimately must motion which question a constitutional bers avoid by an Article III in the decided authority of court to about the district v. absence consent.” Newman Sun III, judgment we enter Article Inc., 2:09-cv-445, Capital, No. 2010 WL (M.D.Fla. disagree. do use tool “Courts this 326069, 21, 2010); at *1 Jan. see Mountain, LLC, unambigu is when text statute v. Smith Powder Time, Inc., 1327, 08-cv-81185, Price 416 08-80820-civ, ous.” v. Nos. 2010 WL (11th (S.D.Fla. 2010) Cir.2005). 5483327, 8, *1 Dec. 1342 Based the above (“[T]he authorities, presently motion before Court ordinary legal meaning intervene, which, is a motion because of in And will “parties” clear. we nature, by its dispositive cannot be decided explain following subsection parties’ a magistrate judge absent the 636(c), it, section as we read does sent.”). violate Article III the Constitution any event. Devlin, problem in

In contrast with the a requirement that the class mem- Judge Magistrate 2. The Had individually consent to bers be- Jurisdiction, III, Under Article necessary fore magistrate judge is not Judgment. to Enter a Final preserve “only absent class members’ 1, III, Article of the Constitution protecting Section [themselves] means from be- judicial ing by requires that Power of disposition rights [their] “[t]he bound States, law, panel be vested in one su- the first to address an shall issue of United Court, in such inferior preme Courts until that holding unless and is overruled may from time to time Congress as the banc, en the Supreme Court.” Unit- Judges of Article ordain and establish.” ed Joseph, States v. 1098-99 during hold their Offices III courts “shall (11th Cir.2013) (quoting United States v. and “receive for their good Behaviour” Hogan, 986 F.2d Cir. shall Compensation[ ] [that] Services ... 1993)). Ill, Art. not be diminished.” U.S. Const. suggest The consumer advocates two Supreme 1. The Court has identified Supreme the decision of the Court Stern purposes pro- served this constitutional Marshall, v. 131 S.Ct. first, III “to safeguard vision: Article acts (2011), 180 L.Ed.2d abrogated our de litigants’ right have claims decided be- Sinclair, cision in disagree. but we potential judges fore who are free from Stem, that, held Court under Article govern- other domination branches III, a ... “Bankruptcy Court lacked the ment,” Commodity Trading Futures authority constitutional to enter a final Schor, Comm’n on a state law counterclaim that (1986) 3245, 3255, 92 L.Ed.2d (citations process ruling is not resolved on a quotation and internal marks omitted); and, second, proof Article III “serves creditor’s of claim.” at Id. ... protect independent to the role of the explained entry The Court that the of a judiciary within the constitutional scheme judgment is an exercise of “the essential (citations tripartite government,” Id. judicial power.” attributes of Id. at 2618. omitted). quotation and internal marks rejected argument The Court an that a 636(c) explained We have that section “is bankruptcy judge judgment could enter a requires constitutional because the act that “adjunct” as an of a district court and parties and the the district court consent explained bankruptcy judge that a enter- magistrate to the transfer of the case subject ing to review the and because the court suffi- district retains court if a party appealed district “can magistrate.” cient control over the Sin- ‘adjunct’ no more be deemed mere of the clair, 814 F.2d at 1519. district court than a district court can be jurisdiction We divide our discussion of an ‘adjunct’ deemed such of the court of First, under Article III in parts. three we appeals.” Id. at 2619. And the Court 636(c) facially that explain section consti- that, explained when “the essential attrib- Second, explain tutional. we that section judicial power utes of that are reserved 636(c) applied is constitutional as to class exercised, Article III courts” are “it does Third, that, explain actions. we because appointed judge not matter who the ... or argument process the about due raised judg- authorized the to render final subject- the amicus curiae does not involve (citations in proceedings.” ments such Id. jurisdiction, matter we will not consider it. omitted). quotations and internal 636(c) Facially a. in abrogate Section Is Stem did not our decision Sinclair, Constitutional. that Sinclair. we concluded 636(c) section was constitutional because argue The consumer advocates least nine other circuits” had reached “[a]t 636(c) III, facially section violates Article the rea- that conclusion and “we f[ou]nd Sinclair, we in held otherwise soning persuasive.” cases Sin- th[o]se firmly F.2d at 1519. is the estab “[I]t clair, at suggests 814 F.2d 1519. Stem lished rule of this that each suc Circuit of the cited in those ceeding panel holding is bound the that some factors the act re- [is] is constitutional provide district decisions magistrate over quires control that the ... consent to court sufficient under Article problem avoid a judges to magistrate,” of the case to a Sin- transfer judg- enters III when clair, in a our example, For the decisions of ment. action, ‘party’ “is the the named authority circuits relied on sister acts of the entire lawsuit who on behalf judges III over selection Article class, including regard with decision judges retention proceed magistrate judge,” before a III judge Article ability to an Williams, 159 F.3d at 269. Because of the constitutionality of section support representation party, named 636(c). See, e.g., Diagnostic Pacemaker same class members do not have the Am., Instromedix, Inc., Inc. v. Clinic of interest in conduct of litiga- stitutional (9th Cir.1984). But 545-46 party. tion a named This conclusion is as on factors decisions also relied other these the explanation with of the Su- consistent “authority to cancel including the an order Court, context, in preme another “the reference, sponte application sua Due Process Clause ... does afford in good cases” for parties, individual protection much as [absent members] cause, that Court did not Supreme from state-court does the And, at 545. address Stem. Id. Shutts, party].” [named Sinclair, explained we “district at 2974. court transfer [must] 636(c). have Absent sufficient magistrate” case to section Sinclair, protect any tools 814 F.2d at 1519. doc- interest have “[T]he ... prior precedent trine of adherence to before Article III litigating judge. intervening Supreme mandates that As explained previous we subsec- actually abrogate directly Court case tion, class retain at members least with, as to opposed merely conflict weak- options protect rights three their to the en, holding prior panel.” of the Unit- adjudication by of their claims an Article Kaley, v. F.3d 1255 ed States 579 judge III when a certified class is and the (11th Cir.2009). Because Stem did not member named class has consented to ad- many address of the factors that our led to (1) judication by magistrate judge: a ab- 636(c) conclusion that section is constitu- apply sent class members can intervene tional, abrogate Stem did not our decision (2) lawsuit; in the absent class in members in Sinclair. many a opt class actions can out of settle- judgment by ment and be bound 636(c), Applied b. Section As judge, III entered non-Article see Actions, Does Not Class Devlin, 10-11, U.S. at 122 536 S.Ct. at Article III. Violate (3) 2011; and absent class members can The advocates argue consumer bring a collateral of the attack decision 636(c) applied that section ac consent named member to tions violates Article III because it allows entry judgment by of a magistrate judge judgment to enter Williams, judge, 159 at 269-70. F.3d without absent class argue consumer advocates that the members, but agree we with Seventh magistrate judge juris- lacked this case 636(c) Circuit section does not violate Day diction to enter a applied Article III as to class actions. Williams, authority lacked absent class at 270. bind mem- F.3d We have ex 636(c) plained jurisdic- that one reason that “section bers she to the when consented (internal omitted). magistrate judge quotation before the marks tion of We certified, disagree. that, but we class had been if explained have we were to address proposed files a plaintiff who “[A] issues been raised before the legally action cannot bind members of court, district “we would not waste before the class is certi- proposed class resources, our but also deviate from the Knowles, fied.” Standard Fire Ins. Co. v. nature, purpose, competence essential — -, 133 S.Ct. appellate of an court.” Id. No chal- (2013). L.Ed.2d 439 absent class lenged magistrate judge front of the were not bound the consent of adequacy of the notice to the absent class earlier, Day. explained As we absent class members. Because the did not objected members who give magistrate judge opportunity an judge could have notice, adequacy to consider the we “appl[ied] to the district court to intervene need not consider this argument. More- 24(a), parties] Rule become ... over, we will not allow amicus curiae lawsuit, right and then exercise [their] argument who asserts an on behalf of ab- proceed to withhold consent to be- [their] sent class members a class action to Williams, magistrate judge.” fore attempt to “control the course of th[e] at in at practice F.3d 269. And the least litigation to requesting the extent of indi- some districts in our has been for a Circuit requested by vidual relief not anyone report to draft a Inc., Bing Roadway else.” Express, court recommendation for the district (5th Cir.1973). when a motion to intervene is filed because dispositive “a motion to intervene is a mo- argue The consumer advocates ultimately tion which must be decided process argu we should address the due an Article III the absence of ment because failure notice here “[t]he Newman, consent.” 2010 WL concerns notice to the class members of *1; Smith, see also WL rights their constitutional to an III Article (“[T]he *1 presently motion before the (and cannot) judge, appellees which do not intervene, which, Court is motion to be- ‘jurisdictional dispute presents question’ nature, dispositive cause of its cannot be sponte that should be raised sua even by magistrate decided absent the brings when no one it to the court’s atten consent.”). parties’ tion,” but disagree. mag we Whether the jurisdiction istrate to enter a c. Argument We Will Not Address the 636(c) under section and of the Amicus Curiae About Due question subject-matter Article III is a of Process. jurisdiction. adequacy But of no argue The consumer advocates that question subject-matter tice is not a of the notice to the absent class members jurisdiction sponte. sua we must raise right process violated their to due the notice relevant The contents of are adequate provide it did not notice that a whether, only if question to the the con magistrate judge judg would enter a final of the sents absent class members ment, argu but we need address this necessary, they impliedly consented to the ment. repeatedly “This Court has held jurisdiction magistrate judge that an issue not raised in the district Supreme the decision of the Court in Roell court and raised for the first time in an Withrow, 1696, 580, v. 123 538 U.S. S.Ct. appeal will not be considered this (2003), Now, 155 L.Ed.2d 775 which held that court.” Access Inc. v. Sw. Airlines (11th Cir.2004) Co., 1324, inferred 385 F.3d 1331 the consent of 1326 appel- cir- during litigation in some district court or the brief of the

from conduct 582, cumstances, at at 1699. id. 123 S.Ct. lant. sufficiency of the notice

The contents Magistrate Judge B. The Abused His our any question about are not relevant if He jurisdiction Approved absent class Discretion When subject-matter required consent to Agreement. members were the Settlement magistrate judge. litigate before approve “In order to the set agreement, the district court was argue tlement consumer advocates The that, pro fair, argument if about due required even it was determine of cess is not related reasonable, and adequate, product not the III magistrate judge under Article and Bank of collusion.” Leverso SouthTrust 636(c), “the would still be section issue Ala., Ass’n, 1527, Nat’l 1530 of this is jurisdictional,” argument but based (11th Cir.1994). The misunderstanding of the distinction recognized that we have identified the fol subject-matter juris personal and between lowing six that a con factors court should “objections diction. law is clear that Our sider to decide whether a settlement subject jurisdiction—unlike personal action is agreement a class fair: jurisdiction—are matter Old waivable.” (1) (2) trial; the likelihood of at success Lora, S.A., Bahia v. Pueblo De 558 field (3) range possible recovery; of (11th Cir.2009). 1210, 21 F.3d 1218 n. The point possible on or below the of range consumer cite decisions of advocates fair, recovery at which Shutts, Supreme Court Mullane reasonable; (4) adequate the com- Co., v. Central Hanover Bank Trust 339 & plexity, expense litiga- and duration of 306, 652, (1950), U.S. 70 94 L.Ed. 865 S.Ct. (5) tion; the substance and amount of support argument suffi for the that the (6) settlement; opposition to the ciency implicates jurisdic the notice stage proceedings at which the settle- address, question tional that we must but was ment achieved. personal both of these decisions addressed Shutts, jurisdiction, at U.S. Behring Corp., Bennett v. Mullane, 2976; at S.Ct. (11th Cir.1984). key The factor in this Supreme The Court has is the range possi- third one: “[bjecause that, explained requirement recovery. ble personal jurisdiction first represents magistrate judge approved a settle- can, right, all an like individual other provided monetary ment no relief to Ir., rights, Corp. such be waived.” Ins. class members because he Compagnie Ltd. v. des de Gui Bauxites found the defendants were not finan- nee, 102 S.Ct. award, cially meaningful able to pay (1982). “[Ujnlike 2105, 72 L.Ed.2d finding supported this is not the record. subject-matter jurisdiction, which even an ability evidence appellate sponte, court review sua ... satisfy judgment defendants to a that was a defense of lack of over the hearing introduced at the fairness person if timely ... is waived not raised in defendant, cerned a Asso- single Persels & responsive the answer a pleading.” or Id. day hearing, ciates. The of the fairness (internal quota at 2105 an legal service defendants filed affida- omitted). tion marks We cannot address in which vit Ruther averred that Persels & argument an of an amicus curiae based on nearly Associates had sustained million a of the personal right $6 unnamed class presented during years members that was not to the in losses the calendar of 2010 it makes a finding and that Persels & Associates factual that has no and 2011 record, of million outstanding debt support see United $14 States agreement. previous Newman, (11th from a settlement 1238-39 only establishes that .2010). But this declaration Cir of defendants would be unable one seven that argues CareOne the record sup- satisfy significant judgment. a The dec- ports finding that the other defendants prove laration that the other six does satisfy would also be unable to a judgment, satisfy would be unable to a defendants disagree. but we argues CareOne that it ability or

judgment even address was unclear whether CareOne would re- satisfy judgment. a those six defendants main a party litigation, the income support There is no in the record for the and assets of Ruther & Associates are finding magistrate judge that irrelevant that firm pre- because was the satisfy defendants would be unable to a Associates, decessor of Persels & and the judgment, and the three individual defendants’ assets were he abused his discretion when made protected levy from or execution because finding. all of the individual defendants were mar- finding This erroneous the defen- ried and jointly. held all of their assets satisfy dants would a be unable substan- But argued any no one has or introduced judgment tial was central to the decision of suggest evidence to that CareOne would magistrate judge the settlement satisfy judgment. Although be unable to a fair, agreement adequate, was and reason- CareOne stated that it would appeal the magistrate judge able. The stated that arbitration, denial of compel its motion to persuaded one of three factors that him to point only at this speculation supports a approve agreement even finding likely prevail. that CareOne was though absent class members no received speculation support This is not sufficient to monetary inability relief was “the financial the exclusion of the assets CareOne pay meaningful of the defendants to range possible recovery.” from “the magistrate judge award.” And the Bennett, 737 986. And the record finding on relied the defendants not support finding does that the three satisfy judgment would be unable to individual unable range possible recovery,” find that “the defendants would be Bennett, satisfy judgment. 737 F.2d at was “from zero Ruther averred that recovery,” to a minimal and to conclude the three individual defendants could not point that “the range or below the satisfy “all of [them] recovery at possible which a settlement is are married and assets are held [their] fair, reasonable,” id., “in- adequate jointly with their spouses and are there- monetary recovery by cludes no the Class execution,” protected levy fore from members.” on his this statement was based “best knowledge, understanding ... and belief.” abused his discre contains no information about record approved tion when he the settlement the financial condition of these three de- clearly on a based erroneous factual find speculation fendants other than the Room, ing. Indigo City See Inc. v. Fort managing & partner Persels Associates. Myers, 710 F.3d Cir.

2013). accepted argu- And even if we CareOne’s Although court does not abuse its defendants, all ment as to of these Car- finding when it makes a factual discretion erroneous, clearly Legal eOne excludes one defendant: Ad- finding unless that was id., in Nothing supports see a court commits a clear error when vice Line. the record I would that unnamed Legal Line would be because hold class finding Advice satisfy a judgment. “parties” upon

unable members become class cer- required tification whose consent is under magistrate the Day argues 636(c)(1) § magistrate 28 U.S.C. for a when he failed not abuse his discretion did jurisdiction. result, judge to exercise As a other than whether defendants to consider hold this lacks ju- I would Court likewise able would be Persels & Associates 636(c)(1). § par- all of the under judgment Accordingly, risdiction satisfy a “because that Persels & Associates recognized jurisdiction ties I would vacate for lack of any judgment for primarily would be liable magistrate judge’s approving Order complaint,” the amended but we under class action and remand settlement imposition primary lia- disagree. The proceedings. further & would bility on Persels Associates secondary liabili- prevent imposition I. Black’s ty on the other defendants. Law Among important require- the most secondary liability Dictionary defines as ments in federal actions are that class “[liability that does not arise unless the unnamed members bound liable to honor its ob- primarily party fails must noticed judgment properly be and Dictionary ligation.” Black’s Law competent jurisdic- certified court of ed.2009). (9th sure, To Florida be law tion, any properly and that be settlement action, provides negligence that “[i]n “fair, reasonable, approved court as against judgment court shall enter each 23(e)(l)-(2). adequate.” and Fed.R.Civ.P. party’s liable on the basis of such case, In this we are asked to decide wheth- Fla. percentage fault.” Stat. 768.81(3). magistrate judge, acting pursuant § But er the Florida law would not governed jurisdiction 636(c)(1), have claims of most consent class, nationwide and the amended com- approved action properly a class settle- plaint also included federal claims. The agreement fair, and adequate, ment as rea- assets and income of the other defendants However, jurisdic- sonable. our satisfy judgment still used could dependent tion review this case is because the defendants would be second- magistrate judge’s jurisdiction, before arily Weingart liable. See v. Allen & can consider we whether the Inc., O’Hara, judge properly approved the class action Cir.1981). case, in settlement this must be we satis- jurisdic- fied that the IV. CONCLUSION approve tion under the set- We VACATE the final tlement. approved agreement and 636(c)(1), magistrate judge Under REMAND for proceedings. further jurisdiction exercise a case over PRO, a district has dissenting part District which court Judge, concurring part: “[ujpon parties” upon special by the designation district judgment remanding I concur this action, plaintiff court. In this named court, agree case to the district and I Day (“Day”) brought Miranda suit on be- his discretion abused 10,- putative half of herself and a approved Agree- when he the Settlement 000 Florida consumers who had fair, contracted reasonable, adequate ment as for debt settlement services with required by Federal Rule of Civil Proce- Defen- 23(e)(2). however, Associates, dure I separately, dants/Appellees write Ruther & Per- Associates, Ruther, consumers, Jimmy proposed Neil J. 000 Florida seis & Set- (collec- Persels, Robyn R. Freedman Agreement B. sought tlement certification of Defendants”), Firm tively, the “Law Car- 125,011 including nationwide class In., FreedomPoint, eOne Services f/k/a sumers who contracted with Ruther & As- (“CareOne”), other defendants in- Inc. and sociates and Persels & Associates for debt Inc., cluding Corp., Ascend One 3C April services on or after court Bernaldo Dancel. The district Day 2005. did not amend the Amended jurisdiction pursuant over the case to the Complaint Class Action allege was Action Fairness Act of Class being brought on behalf of a nationwide 1332(d), § ques- U.S.C. as well as federal 125,011 class of consumers. tion under 28 U.S.C. magistrate judge granted prelimi- certification, plain- Before class named nary approval of proposed Settlement Notice, Day tiff and all defendants filed a Agreement, conditionally certified the class Consent, and Reference of Civil Action 125,011 consumers, appointed Day’s Magistrate Judge pursuant to 28 U.S.C. counsel, approved counsel as class pro- they in which consented to class, posed Notice to and set the fairness magistrate have a United States hearing. approved Pursuant to the notice proceedings “conduct all in this case in- plan, the settlement administrator sent the trial, cluding entry judgment, of final 125,011 Notice class members. The post-trial proceedings.” all Plaintiffs settlement administrator sent No- also signed counsel the consent form on behalf Attorney tice to the General of the United Day” only, of “Miranda L. no with indica- Attorney every States and the General of Day authority tion claimed to act on behalf territory except Washington, state and putative of a class. The district separate where a statewide class action approved the consent form and submitted already pending. was The Notice advised judge. the ease they opt class members could out of the Day subsequently filed Amended class, so would be bound Complaint Class Action on behalf of her- proposed Agree- terms of the Settlement 10,000 alleging self and Florida consumers precluded ment and would not be from similar to that in her original scheme filing prosecuting any they may claims Complaint. Day against asserted claims on their own behalf. The have Notice Defendants, CareOne, the Law Firm procedure advised class members Line, Legal (“Legal Advice LLC Advice objecting proposed for Settlement Line”), which was added as a new defen- Agreement. dant, Repair for violations of the Credit explain plain- The Notice did not Organizations Act and various common law Day representative claims. tiffs’ class and the de- fendants had consented to the Approximately three weeks after 636(c)(1). judge’s jurisdiction under Complaint Amended Class Action was reference to the was filed, Day and the defendants notified Notice, page seven-page six of the magistrate judge they had “reached an approval where it stated hear- “[t]he agreement principle regarding the set- ing Magistrate Judge will be ... before Day subsequently tlement of this case.” Wilson, Thomas G. U.S. District Court Preliminary filed a Motion for Approval the Middle District of Florida.” Other- Day Agreement. Although Settlement wise, repeatedly the Notice referred to brought the Action Amended Class Com- 10,- Court,” except page on the final plaint putative on behalf of a class of “the 1330 had to judge authority admonished in trate constitutional class members it

where telephone the class action settlement. boldface, type approve not to capitalized concerning this no- chambers judge’s “the II. this case.”

tice or members, including Appellant Five class A. (“Gunn”), objections filed Raymond Gunn brief, argues amicus the In its NACA Agreement. Settlement proposed judge lacked constitutional au- magistrate argued pro- the Objection, Gunn In his thority approve Agree- to the Settlement fair, Agreement was not posed Settlement ment because the unnamed reasonable, required by adequate and magistrate judge’s did not consent to the 23(e)(2) a variety of reasons. The Rule jurisdiction. NACA further ar- exercise Connecticut, Florida, Attorneys General of 636(c) § gues applied is unconstitutional as York, Maine, Virginia and New West unnamed to this case because the objection urging letter the submitted constitutionally members did not receive proposed judge reject the magistrate parties notice named adequate the it Agreement on the basis was Settlement judge. to magistrate had consented Fi- reasonable, fair, primar- adequate, not 636(c) § nally, argues facially NACA monetary relief ily because lack of magis- unconstitutional because allows objection, the class In their members. judges powers trate exercise reserved Attorneys General noted the were Article III the judges under Constitu- 17,000 on behalf speaking of over question whether the magis- tion. members who are residents of their re- jurisdiction approve trate the spective states. Agreement by Settlement was raised magistrate fairness hearing, After a defendants, objector Day, any either final judge granted approval of Settle- appeal. below or on Agreement. appeals ment now Gunn Generally, the will not Court consider judge’s magistrate granting ap- Order “that issues raised an amicus brief were argu- proval Agreement, of the Settlement neither raised in the district court nor fair, adequate, ing the settlement was not argued appellants appeal.” Rich and reasonable. Two amicus briefs were of Educ., v. Ala. ardson State Bd. F.2d Gunn, support filed one the Na- (11th Cir.1991). However, “ev tional Association Consumer Advocates ery appellate special federal court has (“NACA”) and the other the States of obligation satisfy itself not of its York, Arkansas, Florida, Hawaii, New Illi- jurisdiction, own also that of lower nois, Iowa, Kansas, Maine, Kentucky, Ma- review,” regardless in cause courts Massachusetts, ryland, Michigan, Minneso- of whether raise the issue. Nevada, ta, Mexico, Hampshire, New New Co., King v. Cessna 505 F.3d Aircraft Dakota, Ohio, Rhode Oregon, North Is- (11th Cir.2007) (quotation omit land, Carolina, Tennessee, Vermont, South ted). Washington, Virginia, West Dis- Gunn, twenty- trict of to review final Columbia. Like Court’s judgment Amicus of Co- aby five States and the District entered 636(c)(3). argue Agreement lumbia from 28 McNab Settlement arises U.S.C. fair, Inc., Marine, adequate, v. & J was reasonable. J (11th Cir.2001) curiam); (per the first time on NACA 1327-28 appeal, For raises 1291; magis- regarding (pro- a new issue whether U.S.C. 28 U.S.C. Magistrate Judge.” Id. at viding parties properly that when the 1696; parties may magistrate judge, see also Chambless v. sent Louisi directly appropriate United “appeal 1345, 1350 Corp., ana-Pac. from the appeals .2007). States court Cir magistrate judge”). A “[Pjarties added to a case after orig jurisdiction

judge may exercise and enter litigants inal have filed consent under 636(c)(1) § judgment “[u]pon under 636(c) § agree must also to the submission parties” upon spe- the consent of the and magistrate judge; they of the case to the if designation by cial the district court hav- not, do then the case must be returned to jurisdiction ing over the case. Failure of judge.” a district v. Williams Gen. Elec. to the parties to consent Lease, Inc., 266, Capital Auto 159 F.3d judge’s jurisdiction deprives exercise of (7th Cir.1998); 268-69 see also N.Y. Chi jurisdiction over an this Court Enters., Programs, nese TV Inc. v. U.E. by magis- from a final entered (2d Inc., Cir.1993) (re 21, 996 F.2d 24-25 McNab, judge. trate 240 F.3d at 1328. quiring express intervenors’ consent to always jurisdiction has to de Court jurisdiction); magistrate judge’s Caprera jurisdiction termine its own and that of the Jacobs, (5th 442, v. 790 F.2d 444-45 Cir. reviews, it lower court cases 1986) curiam) (per (holding magis that a parties “whether consented to the jurisdiction trate did not have jurisdiction to fi magistrate judge’s enter enter the order of dismissal because later- 636(c) § judgment” pursuant nal is a expressly added defendants did not jurisdictional question to be considered sua jurisdiction); magistrate judge’s sent to the McNab, 1328; Kirk sponte. Litig. Relating Sept. In re to the Riot of Co., Mortg. land v. Midland 243 F.3d 22, 1991 at the Maximum Sec. Unit (11th Cir.2001). 1277, 1279-80 Here, if the Prison, 94-35710, Mont. State No. jurisdiction magistrate judge lacked be (9th 1996) 205487, 26, at *2 Apr. WL Cir. cause the unnamed class members are (“Once (unpublished) the additional defen- “parties” who did not consent under dants were added to the action but did not 636(c)(1), ju § then this Court would lack expressly 636(c)(3). Consequent § risdiction under judge’s jurisdiction, magistrate judge ly, must determine whether the Court jurisdiction lacked over the entire ac- under tion.”). Thus, upon if certification 636(c)(1) though Appellant § even Gunn “parties” unnamed class members become objection did not raise this issue in his 636(c), then their consent is re- appeal. or on below quired magistrate judge’s jurisdic- magistrate judge’s jurisdic Consent tion over the case. 636(c)(1) “explicit, tion under must be “par- the term Congress did not define clear, voluntary, unambiguous.” purposes. ties” for Con- When McNab, However, 240 F.3d at 1328. such undefined, gress leaves a term in a statute party’s consent “can be inferred from a ordinary meaning, it give “we must its during litigation.” conduct Roell v. With keeping in mind the context of the stat- row, 1696, 123 S.Ct. Jimenez, ute.” States v. 705 F.3d (2003). United example, party L.Ed.2d 775 For Cir.2013) (11th 1305, (quotation omit- impliedly litigant consents when “the ted). Congress assume that used the “We of the need for counsel was made aware commonly it, in a statute as words right consent and the to refuse and still understood, if try ordinarily and the statu- voluntarily appeared to the ease before (First) clear, inquiry “parties.” no language further is Restatement tory is however, Judgments, explained At- that “[a] Fed. Reserve Bank appropriate.” Thomas, action is an illustration of a situation v. 220 F.3d lanta Cir.2000). persons for all statutory language If the is where feasible may examine extrin- whose interests be affected ambiguous, the Court it,” of con- and that employ materials and canons action be made sic “purport the named must to act Congress’s plaintiff to determine intent. struction USA, Inc., all,” Vanguard suggesting Car Rental on behalf of unnamed Garcia (11th Cir.2008) are not Restate- “parties.” 540 F.3d 1246-47 (First) (canons construction); City Judgments § Shotz v. ment cmt. b Plantation, (11th (1942). Fla., Cir.2003) (extrinsic materials). Although secondary sources such as dic- 636(c)(1) §

The term is am- “parties” provide tionaries and Restatements some biguous statutory it is not whether the rule guidance, given clear of con- Congress unnamed members included in struction that presumed class are is law, judicial including interpreta- that term once a class certified. I know the law, therefore of legislates, pre- turn to extrinsic sources and tions that when it stronger canons of construction to wheth- 1979 cases are of whom determine indicia or er, certification, upon may Congress unnamed class mem- what have considered to be “parties” “party” bers become whose consent is in 1979. See v. Cannon Univ. of 677, 696-98, required Chicago, for magistrate judge to exercise 441 U.S. 99 S.Ct. 636(c)(1). 1946, (1979). § under 60 L.Ed.2d 560 In 1974—five years Congress before added the relevant Congress language added the relevant 636(c)(1)—the language Supreme § 10, in 1979. See Act of Oct. Court that class held unnamed members 1979, 96-82, 2,§ Pub.L. No. 93 Stat. 643 “parties” in the sense that filing (1979). Looking extrinsic sources of lawsuit on tolls behalf the class Congress may “par- what have understood statute of limitations for their claims. Am. 1979, ties” to mean in the fifth edition Utah, Pipe 538, & v. 414 Constr. Co. U.S. Dictionary, Black’s Law published the 550-51, 756, (1974) 94 S.Ct. 38 L.Ed.2d 713 year, explained same that ‘party’ “[a] (stating that unnamed class members a person designat- action is whose name is tolling “stood the suit” for plaintiff ed on record as or defendant.” out); purposes they opted unless and until ed.1979). (5th Dictionary Black’s Law 1010 In re Litig., Cement Antitrust 688 F.2d cf. Law Dictionary Black’s that states Cir.1982) 1297, 1310 (holding un- party general, term one having “[i]n means named class members are included right to de- proceedings, control to make 455, “party” term under 28 U.S.C. fense, to adduce and wit- cross-examine judicial by recusal statute amended Con- nesses, and to appeal judgment,” from 1974). gress by against those “refers to legal Moreover, whom a Id. Al- brought.” suit is before enactment of though 636(c)(1), action is brought class two circuits and several dis- trolled the named class representatives, trict concluded that unnamed courts subject unnamed members may “party” are “those or members to the against legal discovery whom suit is once brought” rules of the Federal Rules of Thus, See, class is certified. e.g., unnamed class Civil Procedure. v. Dellums (D.C.Cir.1977) Powell, 167, members arguably would fall within 566 F.2d 187 Dictionary’s (stating Black’s Law discovery definition of it is “[w]hile true poses under and not for others. The ‘party’ absentee class members label against a matter does not indicate an and 34 cannot be had as absolute characteris Rules 33 tic, course, majority of but rather a conclusion overwhelming appli about the scope cability procedural of various courts which have considered rules that have conclud differ discovery against absentees based context.” Devlin v. Scardelletti, 1, 9-10, discovery ed that such is available” (2002). cases); 2005, 153 listing instance, certain circumstances and L.Ed.2d For “parties” Brennan v. Midwestern United Ins. unnamed class members are Life (7th Cir.1971) Co., 999, filing 1004-05 the sense that an action on behalf of (holding “par unnamed class members are the class tolls statutes of limitations “ subject ‘party’ discovery pro against ties” the class and that unnamed 34,” objected Rules 33 and provided approval cedures who have subject not be routine to a class action although may appeal should with discovery). intervening, unnamed class members to out but unnamed class mem v. Wainwright Corp., “parties” purpose But see 54 bers are not for the Kraftco (N.D.Ga.1972) (holding diversity jurisdiction. F.R.D. 533-34 Id. at party discovery apply rules did not (citing Pipe S.Ct. 2005 Am. & Constr. Co. members); Utah, v. unnamed class Fischer Wol 94 S.Ct. (1974)). (W.D.Ky. finbarger, Phillips 55 F.R.D. L.Ed.2d 713 Petro 1971) (same). Shutts, 797, Although discovery 810, on un v. leum Co. 472 U.S. 105 circumscribed, 2965, (1985), named class members is it S.Ct. 86 L.Ed.2d 628 the Su they “parties.” preme is not because are not It is Court also indicated that unnamed normally may because unnamed class members “parties” class members be in some duty actually engage no to in the they “[have] circumstances because it states that action,” prosecution subject and because “are almost never to counterclaims cross-claims, discovery may liability on unnamed class members or for fees or a be misused “as tactic to take undue costs.” If unnamed class members are not advantage “parties,” they of the class members or as a it is unclear how ever could counterclaims, cross-claims, stratagem subject to reduce the number of claim- be to Brennan, liability ants.” 450 F.2d 1005. Allow- or for fees or costs. See also Crown, Parker, ing discovery unfettered of unnamed class v. 462 Cork & Seal Co. 345, 354, 2392, may members also undermine the efficien- 103 76 L.Ed.2d U.S. S.Ct. (1983) cy goals litigation. If un- (stating putative of class action 628 that a un- “parties,” “clearly named class are not members named class member would have why is unclear in if apply courts would Rules 33 been Pendleton that suit had parties permitted and 34 when seek to to ac- propound been continue as tion”). Thus, Devlin, Shutts, discovery on unnamed class members as and Crown opposed applying non-party discovery Pipe are consistent with American in un- pre-1979 holding rules. The Seventh Circuit Brennan other case law rejected specifically argument “parties” named class members can be ‘parties’ “absent class members are not some circumstances. consequently subject

a suit and authority finding pre-1979 Given the ‘party’ discovery procedures provided by “par- that unnamed class members be Rules 33 and 34.” Id. at 1004-05. circumstances, Congress ties” various 636(c)(1) Following “par- § the enactment of aware that the term presumably was 1979, mem- building case law on American ties” could include unnamed class judicial if Pipe recognizes open interpretation. that unnamed class bers left excluded “may parties pur- Congress explicitly members for some could have 1334 (1934). 700, 1248 54 S.Ct. 78 L.Ed. if that was its class members

unnamed present III concerns intent, Given Article it did do so. here, particularly ap- strict construction is interpre- an policy to avoid It is “settled context, magistrate propriate. this engenders a federal statute tation of acting in as Article III judge is essence if alter- issues a reasonable constitutional 636(c), § under not as constitution- interpretation poses no native making rulings or a non-dispositive States, Gomez v. 490 question.” al United concerning report recommendation 858, 864, 104 L.Ed.2d S.Ct. 636(b). § dispositive matter under As dis- (1989); Davis, Zadvydas see also above, parties have cussed whether properly consented (2001) (stating is a cardi- L.Ed.2d 653 “[i]t parties’ jurisdictional is a issue because principle statutory interpretation nal required trigger magistrate is consent Congress ... that when an Act of raises a adjudicate judge’s jurisdiction finally constitutionality, doubt as to its serious 636(c). Indeed, civil case accord with will first ascertain whether a this Court voluntary unanimous and consent of “[t]he fairly possible construction statute is linchpin the constitutional question may be avoided.” by which Elec. power.” Capi- this Williams v. Gen. omitted)). If unnamed (quotations Lease, Inc., Auto tal “parties” right are not with a Cir.1998) omitted). Also, (quotation it is 636(c)(1) individually under after consent through judges certification, bound then would be statutory authority their derive plaintiffs relinquishment named adjudicate un- dispositively rights judge, to an III which their Article named class claims. See members’ N.Y. regarding raises constitutional concerns Programs, Chinese TV magistrate judge properly may whether a (stating “the consent of each is jurisdiction § exercise under to the validity statutory essential of without the consent of the unnamed class system magistrate a judge allows to Construing members. the statute to find I binding adjudications”). make therefore “parties” that unnamed class members are certification, hold that un- upon would interpretation a reasonable alternative is “parties” named class members become law, light pre~1979 case tyho magistrate must consent to a judge’s question. avoids a constitutional 636(c)(1). § under Additionally, statutory courts construe preclude grants This construction does not a power strictly. See Christianson judge referring v. Indus. district from matters to a Operating Corp., Colt U.S. 2166, magistrate judge in actions in 108 S.Ct. 100 L.Ed.2d 811 accord eseibXIXAMB).1 (1988); Ratta, Healy § v. 269- Construing with 636(b)(1)(A) judge provides may upon granted, "a 1. Section which relief can be and to involuntarily magistrate dismiss an action.” designate judge a to hear and de- any pretrial 636(b)(1)(B) pending provides judge that “a termine matter before Section court, designate judge may magistrate except injunctive a to con- motion for re- hearings, evidentiary including hearings, lief, duct judgment on pleadings, for for sum- judge pro- and to submit to a court mary judgment, quash to dismiss indict- posed findings of fact and recommendations defendant, by ment or information made court, disposition, by judge of the for the case, suppress evidence in a criminal 636(b)(1)(A)], any excepted [§ motion permit dismiss or to maintenance of applications posttrial for relief made indi- action, to dismiss for failure to state a claim offenses viduals convicted of criminal and of 1,068,153matters, judges disposed unnamed class trate “parties” to include term 264,981 including matters in civil may make it somewhat burden- cases.3 pro- During magistrate copy period, judges for the court to mail con- some 15,049 finality fact recommenda- cluded with civil posed findings pur- cases 636(b)(1)(B) parties” jurisdiction, § “to all suant to consent including tions under 636(b)(1)(C). jury § Barber civil civil required nonjury See trials and 139 trials. Thomas, It not reported many 130 S.Ct. is how class actions (2010) (stating there is were included in the total 177 L.Ed.2d number of civil “presumption given magistrate judges that a term is used cases concluded 636(c), § thing throughout mean the same a stat- consent of the under ute”) omitted). However, (quotation given relatively small number of class impact magistrate comprising on the utilization of actions the civil caseload of the overall, minimal. judges will be United States District Courts presumably number is small. First, may it practicable still for notify clerk’s office to unnamed class mem- To the extent this construction of “par- Second, it bers small class actions. ties” burdens the court and the manner in notifying magistrate judges unclear whether the burden of which with utilized cases, of a report respect any the unnamed class members to class action such great enough weighed against and recommendation is to burden must be Congress statutory find magis- did intend unnamed stitutional and limits of adjudi- class members to be The re- trate “parties.” judges’ power dispositively quirement notify the court all un- cate unnamed class members’ claims. Due apply prerequisite Congress imposed named class members does not non-dispositive pretrial by permit magistrate judges matters decided to act as Article 636(b)(1)(A). parties’ § III judges only under with the Rather, 636(c), reports large actions applies and rec- under 636(b)(1)(B), among types of cases realis- ommendations under which be which dispositive tically may proceed cus- generally are case matters before 636(c). tomarily committed to an Article III dis- judge.2 trict Supreme has indicated that Court Finally, “parties” if to the decision whether unnamed class mem- construing even “parties” unnamed class members would re- bers are should be made refer- include large being goals litigation. sult in some class actions not ence to the of class action Devlin, judges 2005. magistrate referred to under See 636(c), adju- having magistrate judge finally § on the overall utiliza- But impact mini- not a magistrate judges goal tion of would be dicate class actions is of class litigation. action To the extent published annually mal. Statistics judges’ promotes of the resolution of class actions Administrative Office United States efficiency only goal is not the efficiency, Courts show that for the month twelve light period ending September magis- litigation, particularly class action “party” prisoner petitions challenging unnamed class members in the term conditions of greater would not result in a burden on confinement.” 636(c)(l)-(2). §§ courts under 636(c)(l)-(2) require 2. Sections would not no- tice to unnamed class members until a class is Magistrate Judges, http://www.uscourts. 3. U.S. certified, point at which unnamed class mem- gov/Statistics/JudicialBusiness/2012/us- (last September magistrate-judges.aspx Rule bers would receive notice under Federal visited Thus, 4, 2013). 23(c)(2). including Civil Procedure Additionally, seven-page Notice. right to six of class members’ the unnamed would be bound by an Article unnamed class members adjudicated

have their claims by a adjudication as well as the court’s of their claims maker III decision unnamed class their consent.4 fiduciary responsibility magistrate judge without Co., v. Holmes Cont’l Can members. See that unnamed class members holding Cir.1983) 1144, 1147 706 F.2d must upon certification who “parties” (“[Cjareful by the court is neces- scrutiny magistrate judge’s consent that settlements sary guard against 636(c), depart § I would from under or their representatives benefit the have Circuits. Both Third Seventh of absent class attorneys expense at the members are not that “unnamed class held omitted)); Synfuel (quotation members.” 636(c)(1), § meaning of ‘parties’ within the (USA), Inc., Techs., Express DHL Inc. v. required consent is not their (7th Cir.2006) (stat- 646, 652-53 463 F.3d jurisdic- magistrate judge to exercise reviewing court’s role ing the district Dewey Volkswagen tion over case.” high “akin to the agreement is settlement (3d Aktiengesellschaft, 681 F.3d fidu- requires care that the law duty of Williams, Cir.2012); 159 F.3d at see also omitted)). (quotation When ciaries.” 269-70. The Third and Seventh Circuits scope magistrate judges’ sidering the unnamed class members’ reasoned 636(c), efficiency § practical power under 636(c) necessary under consent is than constitu- important are less concerns “[generally speaking, because statutory considerations. tional and ‘parties’ are not before the court Moreover, important” what was “most to direct the being in the sense of able class mem- holding Devlin’s that unnamed Williams, 159 F.3d at 269. litigation.” purposes ap- for the “parties” bers are Rather, ‘party’ “is the plaintiff the named that, peal right was without the to the lawsuit who acts behalf settlement, un- approval of a class action class, to the including regard entire with named class members would be bound proceed before a decision they agree. to which did not part repre- is an judge. This inherent 10-11, Here, 536 U.S. at S.Ct. 2005. litigation.” Id. sentational right individually consent to without holding Dewey and Williams 636(c), 125,011 “parties” unnamed class members are be bound unnamed class members would necessary for a magis- whose consent is by Day’s relinquishment rights of their jurisdiction is at trate to exercise an Article III which did not acknowledgement odds with Williams’s about, expressly impli- know much less “linchpin” that consent is the constitutional edly particularly to. This is trou- authority under magistrate judge’s bling the Notice the unnamed 636(c)(1). As dis- explain members received did not above, magistrate judges derive cussed Day and the defendants had consent- authority statutory both and constitutional magistrate judge’s jurisdiction ed adjudicate parties’ to later-added claims 636(c)(1), and the mention of Thus, only through repre- consent. a class magistrate judge page was buried on Complaint her Amended Class Action to in- 4. This would include class members who pre-certi- her putative were as class mem- clude the nationwide class. Yet never identified 115,000 any complaint would bind consum- operative in this case. fication consent bers in technically part of the Day brought ers who were not even the Amended Class Action Com- 10,000 original plaint putative putative class identified in the on behalf class of consumers, Complaint. Day never amended Amended Class Action Florida and right opt-out because the Notice pre-certification consent did sentative’s right inform them of their to an III purports that to bind Article magistrate judge judge, Day purported that upon certification relin- unnamed class litigation quish right, than a tactical class members greater import has part repre- any options an “inherent could exercise of the three if decision that is In- Id. preserve right at 269. wished to their to an litigation.” sentational stead, judge. and Article III is the constitutional statutory magistrate judge’s source of the At the time the au Seventh Circuit an III to in essence sit as Article power Williams, thored it did not have bene adjudicate the un- dispositively fit of recent Supreme two United States claims. named class members’ cases, Standard Fire Insurance Court — Knowles, v. U.S.-, Company Moreover, options set forth (2013), and Shutts for unnamed class S.Ct. Williams 185 L.Ed.2d 439 — Bayer Corporation, Smith being by members to avoid bound named --, representative’s pre-certification 131 S.Ct. 180 L.Ed.2d 341 Fire, (2011). Standard In Supreme sent to a are not realistic sug- that a pre-certification stipula alternatives. The Seventh Circuit Court held gested pre- regarding damages that if unnamed class members tion the amount of judge, they may an Article III move to class would seek did not bind members of fer proposed under Federal Rule of Civil Pro- class. 133 S.Ct. at 1348-49. intervene 24(a) party plaintiff to “become a “That is because a files a cedure who lawsuit, right proposed legally and then exercise her class action cannot bind proceed proposed her consent to before the members of the class before the withhold Williams, Smith, class is certified.” Id. at 1349. In magistrate.” alternatively suggest- Supreme Court held that when a The Seventh Circuit entry judgment, that “after the of final seeks class certification but fails to obtain ed it, from the the unnamed class member can raise an unnamed class member precluded from seek process proposed collateral attack based on due class is case, certify in another against representative’s ing the named deci- the class 636(c).” “[njeither Id. An- class action nor a proposed sion to consent under from Shutts rejected nonparties.” is that an un- class action bind option other Smith may opt Although named class member out of the 131 S.Ct. at 2379-80. Dewey, the Third judg- does predates settlement and not be bound Circuit Smith, it whether the judge. ment entered a non-Article III not cite so is unclear Shutts, Dewey took Smith’s holding into See 472 U.S. at 105 S.Ct. 2965. Court However, illusory options these three account when held unnamed required if class members are not members’ consent is not for the the unnamed jurisdiction. right III to exercise aware of their Article case, instance, Third nor judge. Regardless, For this it is neither the Circuit guidance had the unclear how the unnamed class members the Seventh Circuit have exercised their Standard Fire.5 intelligently could Prescription Drugs holding Antitrust Liti- Brand Name 5. The Seventh Circuit’s Williams 1997), gation, Cir. 115 F.3d has been further eroded Devlin holding the Seventh Circuit held that unnamed overruled one of the cases which Devlin's right reasoning do not have a on which Williams relies. class members Williams, 'parties’ are not be- intervention. "absent class members being that unnamed 269. Because Devlin holds fore the court in the sense of able proposed object litigation,” In re class members who to direct Williams cites Smith, system judge pro- magistrate some Fire Standard Under integrity and the tecting litigants’ rights named class decisions pre-certification bind un- putative cannot courts. representatives federal magis- Given that members. named class B. both constitutional derive judges trate adjudicate authority to later-add- statutory Here, have the Day authority did not consent, only through ed claims parties’ judge on magistrate consent to a behalf 636(c) type § is not the under consent members the unnamed class before class litigation decision named pre-certification Following certification. conditional class may make that would representatives class certification, Day magis- to the consented upon class certifi- unnamed members bind behalf judge through trate on her own her certification, Rather, un- upon cation. voluntarily litigation appearing conduct members later-added named class become at magistrate judge before the fairness is to al- “parties” required whose consent Roell, hearing. See juris- judge to magistrate low the exercise 125,011 members, class S.Ct. 1696. Of the dispositive diction over resolution non-objecting Day only was mem- class the case. through or appear personally ber coun- expressed the con- The Seventh Circuit However, Day’s post-certification im- sel. treating unnamed members cern that class plied magistrate judge to the did consent required consent “parties” as whose is not bind the unnamed members be- 636(c) virtually eliminate refer- “would cause, certification, upon unnamed class judges in magistrate potential rals to all “parties” members become later-added actions, it facto would de required whose consent under style ‘opt-in’ transform all such cases into 636(c)(1). fundamentally change actions and the ca- The unnamed class members did not ... pacity bind both 636(c)(l)’s satisfy § independently consent express sides the absence consents.” requirement. The unnamed class mem- Williams, disagree 269. I bers did expressly mag- not consent impact prac- would be so extreme. The judge’s jurisdiction. istrate unnamed tical would be that the effect district not impliedly members also did actions parties will decide class unless the judge’s sent to magistrate required by applicable consent as law to conduct, i.e., through litigation their give magistrate jurisdiction. objecting magistrate judge’s juris- And, discussed, previously holding explain diction. The Notice did “parties” unnamed class become Day and the defendants had consented to a 636(c)(1) upon certification has preside over pro- on the impact magis- minimal utilization of ceedings, “mag- and the reference to than judges. doing trate Rather violence judge” istrate was on the second-to-last magistrate judges, the utilization of re- Notice, page of where it stated “[t]he notice quiring adequate parties’ and the ... approval hearing will be before express implied Magistrate Judge Thomas G. Wilson.” jurisdiction ensures adher- judge’s proper Otherwise, repeatedly the Notice requirements referred legal Congress ence to the Court,” except to “the on the final page on non-Article III imposed judges, thereby preserving legitimacy where admonished class members not to purpose for the of an overrules Prescription In re Brand Name intervene, having appeal without Drugs Litigation. Devlin Antitrust concerning judge’s chambers telephone the America, UNITED STATES members’ Notice. The unnamed class Plaintiff-Appellee, magistrate judge’s object

failure pro- in the face of the Notice implied to constitute vided is not sufficient DIVEROLI, Efraim Defendant- litigation conduct. See through consent Appellant. Roell, 538 U.S. at 123 S.Ct. No. 13-10248 (stating party impliedly that a consents Non-Argument Calendar. litigant or magistrate judge when “the counsel was made aware of need Appeals, United States Court of it, right and the to refuse and still consent Eleventh Circuit. voluntarily appeared try the case before Sept. the un- Magistrate Judge”). Because par- named class members are later-added required,

ties whose consent was and be- class members did not

cause the unnamed

consent, magistrate judge juris- lacked the class action settle- approve

diction to

inment this case.

III.

I hold that the unnamed class would “parties” upon

members became certifica- implied express

tion whose consent was 636(c)(1). § I further

required under magistrate judge hold the lacked

would

authority approve the class action set- Day’s post-certification

tlement because

implied consent to the behalf, only on her own and the

operated satisfy

unnamed class members did not 636(c)(l)’s requirement. Be- requirements

cause the were satisfied, ap- likewise lacks this Court 636(c)(3). I

pellate jurisdiction under judgment vacating

concur in the and re- proceedings.

manding for further

Case Details

Case Name: Miranda L. Day v. Persels & Associates, LLC

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 10, 2013

Citation: 729 F.3d 1309

Docket Number: 12-11887

Court Abbreviation: 11th Cir.