Jerome Senegal, et al., on behalf of a class, Plaintiffs-Appellees,
JPMorgan Chase Bank, N.A., Defendant-Appellee. Appeal of: Matthew Braxton, et al.
September 6, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 18 C 6006 -
Manish S. Shah, Judge.
EASTERBROOK, KANNE, and BRENNAN, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
district court certified a class of African-American
financial advisers who worked at JPMorgan Chase Bank between
2013 and 2018. This class, which has about 250 members,
alleged that the Bank treated them less favorably than
equivalent advisers of other races or backgrounds. The
parties filed a settlement together with the complaint. The
agreement, a product of 16 months' pre-suit negotiations,
includes a payment of $19.5 million for the benefit of class
members who do not opt out, plus changes in the Bank's
operations and a fund of about $4.5 million to cover the
costs of those changes and establish a reserve for unexpected
events. The order certifying the class relied on Fed.R.Civ.P.
23(b)(2) with respect to the operational changes and Rule
23(b)(3) with respect to the proposed payments to class
are entitled to opt out of Rule 23(b)(3) classes and pursue
their claims individually. But they cannot opt out of Rule
23(b)(2) classes, for the relief is indivisible. It would not
be possible (or sensible) for the Bank to use different
employment practices for different financial advisers who do
the same tasks in the same places. The notice to class
members told them this and added that anyone who opted out of
the (b)(3) relief would still receive the benefit of the
changes implemented under (b)(2) while retaining a right to
sue the Bank individually. Eleven people opted out.
opt-outs asked the district court to create a subclass
limited to them. The judge declined-not simply because 11 is
too few to be a subclass, but also because these 11
voluntarily left the class. The judge also did not invite any
objections the opt-outs had to the (b)(2) relief. The notice
to class members itself told potential opt-outs that taking
this step would eliminate their right to object. In order to
object, the notice said, a member had to remain in the class
for all purposes. The district judge approved the settlement,
and eight of the eleven people who opted out have appealed.
present several arguments. They contend, for example, that
the judge did not make the findings required by Rule 23 for a
settlement class, see Amchem Products, Inc. v.
Windsor, 521 U.S. 591 (1997), and that because they are
still in the class-members just can't opt out of (b)(2)
classes-the judge should have listened to their protests
despite what the notice said. They maintain that the notice
did not provide enough information for them to make a
reasoned decision whether to opt out of the financial portion
of the relief. They also assert that the settlement provides
too much ($4.5 million) to implement the new employment
practices and not enough ($19.5 million) for distribution to
class members. But they did not either object to the language
of the notice or ask for reinstatement as full class members.
And this leads the appellees (the Bank plus the class
representatives) to contend that they lack "standing to
don't get the standing point. Appellants are members of
the (b)(2) class, and those provisions of the consent decree
will affect them at work even if they are free to seek
damages independently. Cf. Campbell-Ewald Co. v.
Gomez, 136 S.Ct. 663 (2016) (a litigant who rejects an
opportunity to settle retains standing). They assert that
they have been injured- and failure to prove injury, like
failure to establish one's legal position, does not
retroactively deprive the litigant of standing. See Bell
v. Hood, 327 U.S. 678 (1946).
problem is not standing but the nature of the arguments they
present. They might say, for example, that different
prospective relief in the (b)(2) portion of the remedy would
have been better for them. They might say that, if the notice
had been worded differently, they would not have opted
out-and that they want to return to the class if they get
appellate relief. But they do not make such arguments.
Indeed, they have not seriously tried to explain how they are
hurt by the district court's decisions or how they could
be helped by anything this court could do.
the argument that the district court did not make the
findings required by Amchem. Could a remand with
instructions to make those findings assist our eight
appellants? They don't explain how. If the judge makes
the findings, they will be in the same position as they are
now. If the judge concludes that the required findings cannot
be made, then they will be worse off, because they will lose
the benefit of the (b)(2) relief.
the argument that too much money has been allocated to
support the prospective relief and not enough directly to the
financial advisers. Suppose that we were to agree and order
the district judge to move $2 million from the (b)(2) portion
of the remedy to the (b)(3) portion. Then appellants would be
worse off. They would lose the benefit of those funds without
getting anything in exchange-for the transferred money would
be paid to the employees who stayed in the (b)(3) class, as
appellants did not. They can't complain about this or any
other element of the (b)(3) aspect of this class, because
they have opted out. See In re Brand Name Prescription
Drugs Antitrust Litigation, 115 F.3d 456 (7th Cir.
take the argument that the notice should not have said that
people who opt out of the (b)(3) relief cannot complain about
the (b)(2) relief. Suppose appellants had objected distinctly
in the district court (which they didn't). What good
would changing this language, and entertaining their
objections to prospective relief, have done them? We have
listened to every objection they care to make about the
(b)(2) relief, and they have not articulated any contention
that, if accepted, would make them better off. They did not
lose anything when the district judge implemented the
statements in the notice.
persons aggrieved by a judgment may appeal from it. See,
e.g., Deposit Guaranty National Bank v. Roper, 445
U.S. 326, 333 (1980). These objectors are not aggrieved by