Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Motor Fuel Temperature Sales Practices Litigation

United States Court of Appeals, Tenth Circuit

August 23, 2017

IN RE: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION ZACHARY WILSON; MATHEW COOK; BRENT DONALDSON; SAMANTHA BAYLARD; CRAIG MASSEY; RICHARD GALAUSKI; WILLIAM BOYD; LISA MCBRIDE; TAMARA MILLER; HEARTLAND LANDSCAPE GROUP LLC; TEAM TRUCKING; JAMES ANLIKER; DENNIS K. MANN; PHYLLIS LERNER; HERB GLASER; STEVEN RUBIN; MAX CANDIOTTY; FRED AGUIRRE; JAMES JARVAIS; MARA REDSTONE; RAPHAEL SAGALYN; J.C. WASH; JEAN W. NEESE; CECIL R. WILKINS; WAYNE BYRAM; GARY KOHUT; DEBRA BERG; TIA GOMEZ; SHONNA S. BUTLER; BEN DOZIER; MARK SCIVNER; BARBARA CUMBO; JAMES GRAHAM; KENNEDY G. KRAATZ; MELISSA D. MURRAY; MICHAEL A. WARNER; CLINTON J. DAVIS; STEVEN R. RUTHERFORD; LISA ANN LEE; BRENT CRAWFORD; DIXCEE MILLSAP; CARL RITTERHOUSE; SAMUEL ELY; VICTOR RUYBALID; HADLEY BOWER; KRISTY DEANN MOTT; CHARLES COCKRELL, JR.; WILLIAM RUTTHERFORD; JAN RUTHERFORD; MARK WYATT; DAWN LALOR; GERALD PANTO, JR.; EDGER PAZ; CHARLES D. JONES;MICHAEL GAUTHREAUX; JOANN KORLESKI; JEFF JENKINS; SARA TERRY; JACOB STEED; MARVIN BRYAN; JOHN TELLES; CHRISTOPHER PAYNE; SCOTT CAMPBELL; JONATHAN CHARLES CONLIN; PRISCILLA CRAFT; ROBERT HICKS; RICHARD PATRICK; JESSICA HONIGBERG; RAYSHAUN GLANTON; GARLAND WILLIAMS; ANNIE SMITH; BOBBY ROBERSON; SAM HOTCHKISS; ANNA LEGATES; ANDREA FRAYSER; MELVIN ELLISON; CECIL WILKINS; BETTY CHERRY; JOY HOWELL; ALLEN RAY KLEIN, Plaintiffs - Appellees,
v.
CIRCLE K STORES, INC.; PILOT TRAVEL CENTERS, LLC; KUM&GO, L.C.; QUICKTRIP CORPORATION; MURPHY OIL USA, INC.; RACE TRAC PETROLEUM, INC.; MARATHON PETROLEUM COMPANY, LLC; THE PANTRY, INC.; SPEEDWAY SUPERAMERICA, LLC; SHEETZ, INC.; WAWA, INC.; FLYING J INC.; 7- ELEVEN, INC.; PTCAA TEXAS, LP; Defendants - Appellants,
v.
CHEVRON USA, INC.; CASEY'S GENERAL STORE, INC.; SINCLAIR OIL CORPORATION; EXXON MOBIL CORPORATION; ESSO VIRGIN ISLANDS, INC. MOBIL OIL GUAM, INC.; BP PRODUCTS NORTH AMERICA INC., Defendants - Appellees, and BP CORPORATION NORTH AMERICA, INC.; CITGO PETROLEUM CORPORATION; CONOCO PHILLIPS COMPANY; VALERO MARKETING AND SUPPLY COMPANY; SUNOCO CORPORATION; EQUILON ENTERPRISES, LLC, d/b/a SHELL OIL PRODUCTS COMPANY, LLC; MOTIVA ENTERPRISES, LLC; TESORO REFINING AND MARKETING COMPANY; SAM'S CLUB; LOVE'S TRAVEL STOP & COUNTRY STORES, INC.; G AND M OIL COMPANY, INC.; UNITED EL SEGUNDO, INC.; WORLD OIL CORPORATION; M.M. FOLWER, INC.; DANSK INVESTMENT GROUP, INC.; B-B OIL COMPANY, INC.; PORT CITIES OIL LLC; FLASH MARKET, INC; J&P FLASH, INC.; MAGNESS OIL COMPANY; COULSON OIL COMPANY, INC.; DIAMOND STATE OIL, LLC; EZ MART STORES, INC.; THORNTONS, INC., Defendants. IN RE: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION ZACHARY WILSON; MATHEW COOK; BRENT DONALDSON; SAMANTHA BAYLARD; CRAIG MASSEY; RICHARD GALAUSKI; WILLIAM BOYD; LISA MCBRIDE; TAMARA MILLER; HEARTLAND LANDSCAPE GROUP LLC; TEAM TRUCKING; JAMES ANLIKER; DENNIS K. MANN; PHYLLIS LERNER; HERB GLASER; STEVEN RUBIN; MAX CANDIOTTY; FRED AGUIRRE; JAMES JARVAIS; MARA REDSTONE; RAPHAEL SAGALYN; J.C. WASH; JEAN W. NEESE; CECIL R. WILKINS; WAYNE BYRAM; GARY KOHUT; DEBRA BERG; TIA GOMEZ; SHONNA S. BUTLER; BEN DOZIER; MARK SCIVNER; BARBARA CUMBO; JAMES GRAHAM; KENNEDY G. KRAATZ; MELISSA D. MURRAY; MICHAEL A. WARNER; CLINTON J. DAVIS; STEVEN R. RUTHERFORD; LISA ANN LEE; BRENT CRAWFORD; DIXCEE MILLSAP; CARL RITTERHOUSE; SAMUEL ELY; VICTOR RUYBALID; HADLEY BOWER; KRISTY DEANN MOTT; CHARLES COCKRELL, JR.; WILLIAM RUTTHERFORD; JAN RUTHERFORD; MARK WYATT; DAWN LALOR; GERALD PANTO, JR.; EDGER PAZ; CHARLES D. JONES; MICHAEL GAUTHREAUX; JOANN KORLESKI; JEFF JENKINS; SARA TERRY; JACOB STEED; MARVIN BRYAN; JOHN TELLES; CHRISTOPHER PAYNE; SCOTT CAMPBELL; JONATHAN CHARLES CONLIN; PRISCILLA CRAFT; ROBERT HICKS; RICHARD PATRICK; JESSICA HONIGBERG; RAYSHAUN GLANTON; GARLAND WILLIAMS; ANNIE SMITH; BOBBY ROBERSON; SAM HOTCHKISS; ANNA LEGATES; ANDREA FRAYSER; MELVIN ELLISON; CECIL WILKINS; BETTY CHERRY; JOY HOWELL; ALLEN RAY KLEIN, Plaintiffs - Appellees,
v.
CIRCLE K STORES, INC; PILOT TRAVEL CENTERS, LLC; KUM&GO, L.C.; QUICKTRIP CORPORATION; MURPHY OIL USA, INC.; RACE TRAC PETROLEUM, INC.; MARATHON PETROLEUM COMPANY, LLC; THE PANTRY, INC.; SPEEDWAY SUPERAMERICA, LLC; SHEETZ, INC.; WAWA, INC.; FLYING J INC.; 7- ELEVEN, INC.; PTCAA TEXAS, LP, Defendants - Appellants, CHEVRON USA, INC.; CASEY'S GENERAL STORE, INC.; SINCLAIR OIL CORPORATION; EXXON MOBIL CORPORATION; ESSO VIRGIN ISLANDS, INC.; MOBIL OIL GUAM, INC.; BP PRODUCTS NORTH AMERICA INC., Defendants - Appellees and BP CORPORATION NORTH AMERICA, INC.; CITGO PETROLEUM CORPORATION; CONOCO PHILLIPS COMPANY; VALERO MARKETING AND SUPPLY COMPANY; SUNOCO CORPORATION; EQUILON ENTERPRISES, LLC, d/b/a SHELL OIL PRODUCTS COMPANY, LLC; MOTIVA ENTERPRISES, LLC; TESORO REFINING AND MARKETING COMPANY; SAM'S CLUB; LOVE'S TRAVEL STOP & COUNTRY STORES, INC.; G AND M OIL COMPANY, INC.; UNITED EL SEGUNDO, INC.; WORLD OIL CORPORATION; M.M. FOLWER, INC.; DANSK INVESTMENT GROUP, INC.; B-B OIL COMPANY, INC.; PORT CITIES OIL LLC; FLASH MARKET, INC; J&P FLASH, INC.; MAGNESS OIL COMPANY; COULSON OIL COMPANY, INC.; DIAMOND STATE OIL, LLC; EZ MART STORES, INC.; THORNTONS, INC., Defendants. IN RE: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION ZACHARY WILSON; MATHEW COOK; BRENT DONALDSON; SAMANTHA BAYLARD; CRAIG MASSEY; RICHARD GALAUSKI; WILLIAM BOYD; LISA MCBRIDE; TAMARA MILLER; HEARTLAND LANDSCAPE GROUP LLC; TEAM TRUCKING; JAMES ANLIKER; DENNIS K. MANN; PHYLLIS LERNER; HERB GLASER; STEVEN RUBIN; MAX CANDIOTTY; FRED AGUIRRE; JAMES JARVAIS; MARA REDSTONE; RAPHAEL SAGALYN; J.C. WASH; JEAN W. NEESE; CECIL R. WILKINS; WAYNE BYRAM; GARY KOHUT; DEBRA BERG; TIA GOMEZ; SHONNA S. BUTLER; BEN DOZIER; MARK SCIVNER; BARBARA CUMBO; JAMES GRAHAM; KENNEDY G. KRAATZ; MELISSA D. MURRAY; MICHAEL A. WARNER; CLINTON J. DAVIS; STEVEN R. RUTHERFORD; LISA ANN LEE; BRENT CRAWFORD; DIXCEE MILLSAP; CARL RITTERHOUSE;SAMUEL ELY; VICTOR RUYBALID; HADLEY BOWER; KRISTY DEANN MOTT; CHARLES COCKRELL, JR.; WILLIAM RUTTHERFORD; JAN RUTHERFORD; MARK WYATT; DAWN LALOR; GERALD PANTO, JR.; EDGER PAZ; CHARLES D. JONES; MICHAEL GAUTHREAUX; JOANN KORLESKI; JEFF JENKINS; SARA TERRY; JACOB STEED; MARVIN BRYAN; JOHN TELLES; CHRISTOPHER PAYNE; SCOTT CAMPBELL; JONATHAN CHARLES CONLIN; PRISCILLA CRAFT; ROBERT HICKS; RICHARD PATRICK; JESSICA HONIGBERG; RAYSHAUN GLANTON; GARLAND WILLIAMS; ANNIE SMITH; BOBBY ROBERSON; SAM HOTCHKISS; ANNA LEGATES; ANDREA FRAYSER; MELVIN ELLISON; CECIL WILKINS; BETTY CHERRY; JOY HOWELL; ALLEN RAY KLEIN, Plaintiffs - Appellees,
v.
BP CORPORATION NORTH AMERICA, INC.; CITGO PETROLEUM CORPORATION; CONOCO PHILLIPS COMPANY; COSTCO WHOLESALE CORPORATION; EXXON MOBIL CORPORATION; SINCLAIR OIL CORPORATION; VALERO MARKETING AND SUPPLY COMPANY; SUNOCO CORPORATION; EQUILON ENTERPRISES, LLC., d/b/a SHELL OIL PRODUCTS COMPANY, LLC; MOTIVA ENTERPRISES, LLC; TESORO REFINING AND MARKETING COMPANY; SAM'S CLUB; LOVE'S TRAVEL STOP & COUNTRY STORES, INC.; G AND M OIL COMPANY, INC.; UNITED EL SEGUNDO, INC.; WORLD OIL CORPORATION; M.M. FOLWER, INC.; J&P FLASH, INC.; DANSK INVESTMENT GROUP, INC.; CIRCLE K STORES, INC; KUM&GO, L.C.; MURPHY OIL USA, INC.; MARATHON PETROLEUM COMPANY, LLC; FLYING J INC.; 7-ELEVEN, INC.; PTCAA TEXAS, LP; PILOT TRAVEL CENTERS, LLC; QUICKTRIP CORPORATION; RACE TRAC PETROLEUM, INC.; THE PANTRY, INC.; SPEEDWAY SUPERAMERICA, LLC; SHEETZ, INC.; WAWA, INC.; B-B OIL COMPANY, INC.; COULSON OIL COMPANY, INC.; PORT CITIES OIL LLC; FLASH MARKET, INC.; J&P FLASH, INC.; DIAMOND STATE OIL, LLC; MAGNESS OIL COMPANY; THORNTON'S, INC., Defendants, and CHEVRON USA, INC.; EZ MART STORES, INC.; CASEY'S GENERAL STORE, INC., Defendants- Appellees,
v.
MELISSA HOLYOAK; ADAM SCHULMAN; AMY ALKON; NICOLAS S. MARTIN; THEODORE H. FRANK, Objectors - Appellants. IN RE: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION ANNIE SMITH; CHRISTOPHER PAYNE; PHYLLIS LERNER; HERB GLAZER; MARA REDSTONE; BRENT CRAWFORD; VICTOR RUYBALD; ZACH WILSON; LISA MCBRIDE; RAPHAEL SAGALYN; BRENT DONALDSON; GARY KOHUT; RICHARD GAULAUSKI; CHARLES BYRAM; JEAN NEESE; SHONNA BUTLER; GERALD PANTO, JR.; JOANN KORLESKI; TAMARA MILLER; PRISCILLA CRAFT; JEFF JENKINS; JAMES GRAHAM, Class Representatives, Plaintiffs - Appellees,
v.
COSTCO WHOLESALE CORPORATION, Defendant - Appellant, and BP PRODUCTS NORTH AMERICA INC.; BP WEST COAST PRODUCTS, LLC; CASEY'S GENERAL STORES, INC.; CITGO PETROLEUM CORPORATION; CONOCOPHILLIPS COMPANY; EQUILON ENTERPRISES LLC, d/b/a Shell Oil Products US; MOTIVA ENTERPRISES LLC; EXXON MOBIL CORPORATION; MOBIL OIL GUAM, INC.; ESSO VIRGIN ISLANDS, INC.; SAM'S EAST, INC.; SAM'S WEST, INC.; WAL-MART STORES, INC.; WAL-MART STORES EAST, LP; SINCLAIR OIL CORPORATION; VALERO MARKETING AND SUPPLY COMPANY; CHEVRON U.S.A., INC.; SUNOCO, INC. (R&M); B-B OIL COMPANY, INC.; COULSON OIL COMPANY, INC.; DIAMOND STATE OIL, LLC; FLASH MARKET, INC.; J&P FLASH, INC.; MAGNESS OIL COMPANY; PORT CITIES OIL, LLC; EZ MART STORES, INC.; LOVE'S TRAVEL STOP & COUNTRY STORES, INC.; WR HESS COMPANY; M.M. FOWLER, INC., d/b/a Family Fare; DANSK INVESTMENT GROUP, INC., f/k/a USA Petroleum Corporation; TESORO REFINING AND MARKETING COMPANY; THORNTONS, INC.; G&M OIL COMPANY, INC.; G&M OIL CO., LLC; UNITED EL SEGUNDO, INC.; WORLD OIL CORPORATION, Defendants,
v.
SPEEDWAY LLC; 7-ELEVEN, INC.; CIRCLE K STORES, INC; KUM & GO, L.C.; MARATHON PETROLEUM COMPANY LP; MURPHY OIL USA, INC.; PILOT TRAVEL CENTERS, LLC; FLYING J INC.; PTCAA TEXAS, LP; RACETRAC PETROLEUM, INC.; QUIKTRIP CORPORATION; SHEETZ, INC.; THE PANTRY, INC.; WAWA, INC., Objectors.

         Appeals from the United States District Court for the District of Kansas D.C. No. 2:07-MD-01840-KHV

          Tristan L. Duncan, Shook, Hardy & Bacon, L.L.P., Kansas City, Missouri, (William F. Northrip and Sarah Lynn Baltzell, Shook, Hardy & Bacon, L.L.P., Kansas City, Missouri, Stephen R. McAllister, Thompson Ramsdell Qualseth & Warner, P.A., Lawrence, Kansas, and Jonathan S. Massey, Massey & Gail, LLP, Washington, D.C., with her on the briefs) for Speedway LLC, 7-Eleven, Inc., Circle K Stores, Inc., Kum & Go, L.C., Marathon Petroleum Company LLC, Murphy Oil USA, Inc., Pilot Travel Centers LLC, Flying J, Inc., The Pantry, Inc., QuikTrip Corporation, RaceTrac, Petroleum, Inc., Sheetz, Inc., and Wawa, Inc., Defendant-Appellants.

          Theodore H. Frank, Competitive Enterprise Institute Center for Class Action Fairness, Washington, D.C. (Anna St. John and Adam E. Schulman, Competitive Enterprise Institute Center for Class Action Fairness, Washington, D.C., with him on the brief) for Amy Alkon, Theodore H. Frank, Melissa Holyoak, Nicolas S. Martin, and Adam Schulman, Objector-Appellants.

          Joseph R. Palmore, Morrison & Foerster, LLP, Washington, D.C. (David F. McDowell, and Purvi G. Patel, Morrison & Foerster, LLP, Los Angeles, California, and Bryan J. Leitch, Morrison & Foerster, LLP, Washington, D.C., with them on the briefs), for Costco Wholesale Corporation, Defendant-Appellant.

          Daniel V. Dorris, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C., and Robert A. Horn, Horn Aylward & Bandy, LLC, Kansas City, Missouri (Thomas V. Bender, Walters Bender Strohbehn & Vaughn, P.C., Kansas City, Missouri, Joseph A. Kronawitter, Horn, Aylward & Bandy, LLC, Kansas City, Missouri, David C. Frederick and Amelia I.P. Frenkel, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C., with them on the briefs), for Plaintiff-Appellees

          Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges.

          MORITZ, Circuit Judge.

         Consumers purchase gasoline by the gallon. But gas expands as it heats up. And that means the number of molecules-and, accordingly, the amount of energy- in a gallon of gas will vary based on the temperature at which it's dispensed. Yet retailers don't control for the effects of temperature when they sell gas to consumers. So consumers who purchase gas dispensed at higher temperatures may be getting less energy than they expect.

         These simple laws of physics gave rise to complex litigation. Several individuals in multiple states (collectively, the plaintiffs) brought class action lawsuits against various fuel retailers (collectively, the defendants) based on the defendants' failure to control for, or at least disclose, the effects of temperature on fuel. In 2007, the Judicial Panel on Multidistrict Litigation consolidated these cases and designated the District of Kansas as the transferee district.

         After years of legal wrangling, several of the parties entered into settlement agreements, which the district court ultimately approved. These appeals arise from (1) the district court's approval of those settlement agreements and (2) its interpretation of one of them. We consolidated the appeals for procedural purposes and now affirm.

         Background

         I. The Costco Settlement Agreement

         The first defendant to settle was Costco Wholesale Corporation (Costco). Under Sections 4.2 and 4.3 of the Costco settlement agreement (the Costco Agreement), Costco agreed to convert pumps at its existing gas stations in certain states to Automatic Temperature Control (ATC) pumps, and to install ATC pumps at its new gas stations in certain states. And under Section 4.4, Costco agreed to a specific "[i]mplementation [p]eriod": it would "complete the conversion and installation of ATC set forth in sections 4.2 and 4.3 . . . within five years" at a certain yearly rate. Costco App. 178.

         But these requirements weren't absolute. Section 4.7 of the Costco Agreement contains the following language:

Other Agreements. If at any time prior to the completion of conversion and installation of ATC, Class Counsel and Class Representatives agree to enter into any agreement with any person or company to resolve any action or any other pending or threatened claim concerning ATC that is materially more favorable to that person or company than this Amended Settlement Agreement is to Costco (including, without limitation, calling for a lower conversion percentage, slower rate of conversion to ATC or for completion of conversion to ATC at a later date than required by Section 4.4), Class Counsel and Class Representatives agree to notify Costco promptly of the terms of such agreement. At Costco's sole discretion, it may adopt the materially more favorable terms in any such agreement in place of its obligations under Section 4.4. Costco agrees to notify Class Counsel and Class Representatives in writing of any such election. The Parties agree that any change in Costco's obligations under Section 4.4 as a result of any such election that is not a change that is materially adverse to the Settlement Class does not require additional notice to the class.

Id. at 180.

         The district court approved the Costco Agreement on April 24, 2012. Nearly two years later, several of the plaintiffs agreed, via a "STIPULATION OF DISMISSAL WITH PREJUDICE" (the Stipulation), to dismiss their individual claims against several other defendants. App. vol. 16, 4538. And unlike the Costco Agreement, the Stipulation didn't require any of those other defendants to implement ATC at all, let alone to do so by a certain date and on a certain schedule. Understandably viewing this result as more favorable than the one it obtained, Costco filed notice of its intent to invoke its rights under Section 4.7. It then asked the district court to grant Costco leave to adopt the "terms" of the Stipulation and to dismiss the plaintiffs' claims against Costco with prejudice. Costco. App. 250.

         The district court denied both requests. In doing so, it concluded that (1) Section 4.7 only applies to agreements that "concern the implementation of ATC"-e.g., agreements that "call[] for a lower conversion percentage, a slower rate of conversion to ATC[, ] or completion of conversion to ATC at a later date than required by Section 4.4" of the Costco Agreement, id. at 255; and (2) because the Stipulation didn't require the dismissed defendants to implement ATC at all, it necessarily didn't "concern the implementation of ATC, " id. at 254-55. Accordingly, the district court refused to let Costco adopt the "terms" in the Stipulation, id. at 250, or to dismiss the claims against Costco with prejudice.

         II. The Remaining Settlement Agreements

         In the meantime, the plaintiffs negotiated settlement agreements with 28 other defendants. For reasons we set forth in Discussion Section II, infra, only nine of those settlement agreements (plus the Costco Agreement) are at issue here: the plaintiffs' settlement agreements with defendants BP, Chevron, Citgo, ConocoPhillips, ExxonMobil, Shell, Sinclair, Sunoco, and Valero. These ten settlement agreements fall into two general categories, which we refer to as conversion settlements and fund settlements.

         The Costco and Valero settlements are conversion settlements. Much like Costco, Valero agreed to convert existing pumps in certain states to ATC and to install ATC pumps at new stations in certain states.

          The remaining settlement agreements are fund settlements. They require BP, Chevron, Citgo, ConocoPhillips, ExxonMobil, Shell, Sinclair, and Sunoco each to pay a certain sum-ranging from $61, 000 to $5, 000, 000-into a common fund. Under the terms of the settlement agreements, portions of that fund may be used to (1)reimburse fuel retailers for expenses they incur if they convert to ATC; and (2)defray costs that state agencies incur if those states agree to permit or require ATC at resale. Neither the conversion settlements nor the fund settlements provide any money to class members.

         As relevant here, two groups of objectors lodged objections to some or all of the relevant settlement agreements. We refer to the first group of objectors, comprising class members Amy Alkon, Nicolas Martin, Theodore H. Frank, Melissa Holyoak, and Adam Schulman, collectively as "Alkon." We refer to the second group of objectors, comprising non-settling defendants QuikTrip Corporation, 7-Eleven, Inc., Circle K Stores, Inc., Kum & Go, L.C., Marathon Petroleum Company LP, Murphy Oil USA, Inc., Pilot Travel Centers, LLC, Flying J, Inc., PTCAA Texas, LP, RaceTrac Petroleum, Inc., Sheetz, Inc., Speedway LLC, The Pantry, Inc., and Wawa, Inc., collectively as "Speedway."

         Alkon objected to the settlement agreements on numerous grounds, arguing that (1) approval of the settlement agreements violates the First Amendment; (2)approval of the settlement agreements violates separation-of-powers principles; (3)ATC conversion harms some class members and confers no benefit on others; (4)the settlement agreements afford preferential treatment to class counsel by paving the way for excessive attorney's fees; and (5) Fed.R.Civ.P. 23(b)(3)'s superiority requirement precludes class certification. Speedway advanced similar objections, arguing that approval of the settlement agreements (1) violates the First Amendment; (2) violates Article III of the United States Constitution; and (3) poses separation-of-powers problems. The district court addressed and rejected these objections and ultimately approved the settlement agreements.

         Costco now appeals the district court's order refusing to allow it to exercise its rights under Section 4.7 of the Costco Agreement. Alkon and Speedway both appeal the district court's order approving the remaining settlement agreements, and Alkon additionally appeals the district court's order approving the Costco Agreement.

         Discussion

         I. Costco isn't entitled to invoke its rights under Section 4.7.

         Costco asserts that the district court erred in refusing to allow it to exercise its rights under Section 4.7 of the Costco Agreement. Because this argument presents a question of contract interpretation, our review is de novo. In re Universal Serv. Fund Tel. Billing Practice Litig., 619 F.3d 1188, 1211 (10th Cir. 2010).

         In denying Costco's motion, the district court relied in part on the fact that Section 4.7 applies only if "Class Counsel and Class Representatives agree to enter into any agreement with any person or company to resolve any action or any other pending or threatened claim concerning ATC." Costco App. 180 (emphasis added). Specifically, the district court concluded that the phrase "concerning ATC" modifies the term "agreement, " and thus that only agreements "concerning ATC" can trigger Costco's rights under Section 4.7.

         Costco argues this was error. Citing the last-antecedent rule, it maintains that the phrase "concerning ATC" modifies its nearest antecedents-i.e., "claim" and "action"-and not, as the district court found, the more remote term "agreement." See Caughey v. Emp't Sec. Dep't, 503 P.2d 460, 463 (Wash. 1972)[1] (explaining that "qualifying words and phrases" typically "refer to the last antecedent").

         But as the plaintiffs correctly point out, the last-antecedent rule only operates if "no contrary intention appears" in the contract. Id. And here, the district court implicitly concluded that Section 4.7's parenthetical list of examples evinces just such a "contrary intention." Id.

         We agree. By giving a parenthetical list of examples of agreements that concern ATC-i.e., agreements that "call[] for a lower conversion percentage, slower rate of conversion to ATC, or for completion of conversion to ATC at a later date"- rather than examples of "claims" or "actions" concerning ATC, Costco App. 180, Section 4.7 expresses an "intention" that is "contrary" to the general rule that "qualifying words and phrases refer to the last antecedent, " Caughey, 503 P.2d at 463. Specifically, Section 4.7's parenthetical list indicates that rather than modifying its nearest antecedents, the phrase "concerning ATC" instead modifies the term "agreement." Costco App. 180.

         Costco resists this conclusion. It points out that Section 4.7's parenthetical list of examples is preceded by the phrase "including, without limitation." Id. Thus, Costco concludes, the district court erred in using Section 4.7's parenthetical list of specific examples to limit the general phrase "any agreement" to agreements that are similar to those in Section 4.7's parenthetical list-i.e., agreements that concern ATC.[2] Id.

         In support, Costco cites United States v. West, 671 F.3d 1195 (10th Cir. 2012). There, we acknowledged that the principle of ejusdem generis "[o]rdinarily . . . limits general terms which follow specific ones to matters similar to those specified." Id. at 1200 (alterations in original) (quoting Gooch v. United States, 297 U.S. 124, 128 (1936)). But we declined to apply that interpretive canon to the statute at issue in West, in part because Congress prefaced that statute's list of examples with the phrase "including, but not limited to." Id. at 1200 (emphasis omitted) (quoting 21 U.S.C. § 860(e)(1)); see also id. at 1201-02.

         Much like the statute at issue in West, Section 4.7 prefaces its list of examples with the phrase "including, without limitation." Costco App. 180; see 671 F.3d at 1200. But unlike our task in West-which was to discern "Congress' intent in enacting" the relevant statute, 671 F.3d at 1200-our task here is to determine how the Supreme Court of Washington would interpret Section 4.7, cf. Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1093 (10th Cir. 2010) ("[O]ur task in diversity cases is to predict how the state supreme court would rule."). And that court recently applied ejusdem generis to a statutory list despite the presence of a similar introductory phrase. See State v. Larson, 365 P.3d 740 (Wash. 2015).

         In Larson, the court examined a statute that prohibited, in relevant part, the "possession of an item, article, implement, or device designed to overcome security systems including, but not limited to, lined bags or tag removers." Id. at 741 (emphasis added) (quoting Wash. Rev. Code § 9A.56.360(1)(b)). The court agreed with the State that "[t]he statutory language 'including, but not limited to'" indicated that "lined bags and tag removers" were "illustrative examples rather than an exhaustive list." Id. at 743 (quoting § 9A.56.360(1)(b)). But "contrary to the State's assertions, " the court also concluded that those "illustrative examples were intended to limit the scope of the statute" to similar items. Id. (emphasis omitted). And in reaching that conclusion, the court applied the limiting canon of ejusdem generis. See id.

         Under Larson, we conclude that Section 4.7's use of the phrase "including, without limitation" indicates that agreements "calling for a lower conversion percentage, slower rate of conversion to ATC, or for completion of conversion to ATC at a later date, " Costco App. 180, are "illustrative examples" of the types of agreements that will trigger Section 4.7, "rather than an exhaustive list" of the agreements that will do so, 365 P.3d at 743. But, under Larson, we likewise conclude that Section 4.7's list of "illustrative examples" nevertheless demonstrates an "inten[t] to limit the scope of" Section 4.7 to agreements that are "similar" to those examples. 365 P.3d at 743. And, under Larson, we reach that conclusion despite the fact that Section 4.7 prefaces its list of illustrative examples with the phrase "including, without limitation."[3] Costco App. 180; see Larson, 365 P.3d at 743.

         Alternatively, even assuming that ejusdem generis applies, Costco argues that "the most general quality shared by Section 4.7's [examples] is . . . that they all minimize or eliminate Costco's obligations under the settlement, " not that they all concern the implementation of ATC. Costco Rep. Br. 11. And because the Stipulation-if Costco were allowed to adopt it-would share this general quality, Costco asserts that the Stipulation triggered Costco's rights under Section 4.7.

         We find this argument foreclosed by Section 4.7's plain language, which only allows Costco to "adopt the materially more favorable terms in any . . . agreement in place of its obligations under Section 4.4." Costco App. 180 (emphasis added). Section 4.4 requires Costco to "complete the conversion and installation of ATC set forth in sections 4.2 and 4.3 above within five years of the Effective Date in accordance with the following schedule." Id. at 178. Sections 4.4.1 through 4.4.5 then set out the schedule under which Costco must implement ATC. In comparison, Section 4.2 states that Costco will convert pumps at existing stations to ATC. And Section 4.3 states that Costco will install ATC pumps at any new stations.

         By specifying that Costco may only replace its obligations under Section 4.4- rather than its obligations under Sections 4.2 and 4.3-Section 4.7 operates to allow Costco to adopt from other agreements only those more favorable terms that govern how quickly and thoroughly it must implement ATC under Section 4.4, not to substitute more ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.