David Williams v. Reckitt Benckiser LLC ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11232
____________________
DAVID WILLIAMS,
Individually and on behalf of all others similarly situated,
CAROLL ANGLADE,
Individually and on behalf of all others similarly situated,
HOWARD CLARK,
THOMAS MATTHEWS,
MARTIZA ANGELES,
Plaintiffs-Appellees,
versus
RECKITT BENCKISER LLC,
RB HEALTH (US) LLC,
Defendants-Appellees,
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2 Opinion of the Court 22-11232
THEODORE H. FRANK,
Interested Party-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-23564-MGC
____________________
Before WILLIAM PRYOR, Chief Judge, MARCUS, Circuit Judge, and
MIZELLE,∗ District Judge.
MARCUS, Circuit Judge:
This is an appeal from a district court order approving a
class-action settlement that purports to provide injunctive relief
and up to $8 million in monetary relief to a class of individuals (the
“Class”) who purchased one or more “brain performance supple-
ments” manufactured and sold by Defendants Reckitt Benckiser
LLC and RB Health (US) LLC (together, “RB”) under the brand
name “Neuriva.” Five Plaintiffs (together, the “Named Plaintiffs”)
who had previously purchased Neuriva brought this putative class
action, alleging that RB used false and misleading statements to
∗ Honorable Kathryn Kimball Mizelle, United States District Judge for the
Middle District of Florida, sitting by designation.
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22-11232 Opinion of the Court 3
give consumers the impression that Neuriva and its “active ingre-
dients” had been clinically tested and proven to improve brain
function, in violation of Florida, California, and New York con-
sumer protection laws. The parties promptly agreed to a global
settlement (the “Settlement” or “Settlement Agreement”) that
sought to resolve the claims of all Plaintiffs and absent Class mem-
bers, before any formal discovery or motion practice had been
completed.
Obviously, the settling parties do not contend that the dis-
trict court erred in approving the Settlement; rather, this appeal
comes to us because one unnamed Class member, an attorney and
frequent class-action objector, Theodore Frank, objected in district
court and subsequently appealed the district court’s approval or-
der. In essence, Frank argues that the parties inflated the perceived
value of the Settlement by touting that RB would pay up to $8 mil-
lion to Neuriva purchasers -- knowing all the while that few Class
members would complete the process of submitting claims to re-
ceive payment -- and imposing changes to RB’s marketing that
would not benefit past purchasers of Neuriva and that were mean-
ingless in any event. This, Frank contends, allowed Plaintiffs’
counsel to secure a disproportionately large fee award (some $2.9
million) while decreasing the overall payout required of RB.
Whatever the merits of Frank’s claims, they will have to
wait for another day because, after thorough review of the record
and with the benefit of oral argument, we conclude that the Named
Plaintiffs lack standing to pursue their claims for injunctive relief.
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4 Opinion of the Court 22-11232
Under longstanding Supreme Court precedent, plaintiffs seeking
injunctive relief must establish that they are likely to suffer an in-
jury that is “actual or imminent,” not “conjectural or hypothetical.”
But none of the Named Plaintiffs allege that they plan to purchase
any of the Neuriva Products again in the future -- to the contrary,
the operative complaint gives every indication that they will not
again purchase any of the Neuriva Products because they are
“worthless.” The district court, therefore, lacked jurisdiction to
award injunctive relief to the Named Plaintiffs or absent Class
members, and its approval of the Settlement Agreement (which
was based in real part on the award of injunctive relief) was an
abuse of discretion. Accordingly, we VACATE the district court’s
order and REMAND for proceedings consistent with this opinion.
I.
A.
RB manufactures and sells a line of three “brain performance
supplements” under the brand name Neuriva: Neuriva Original,
Neuriva Plus, and Neuriva De-Stress (together, the “Neuriva Prod-
ucts”). RB advertises that the Neuriva Products have been “clini-
cally and scientifically proven to enhance the brain health and per-
formance of all adults in specific ways.” Thus, for example, RB in-
forms consumers that taking any of the Neuriva Products will help
them “brain better” by improving “focus,” “accuracy,” and “con-
centration.” Neuriva Original and Plus are also claimed to improve
users’ “memory” and “learning,” while Neuriva De-Stress, RB
promises, will aid in “stress reduction” and “relaxation.” RB also
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advertises that the Neuriva Products each contain several “active
ingredients” that have themselves been clinically proven to im-
prove brain physiology and function.
In 2020, three sets of Plaintiffs filed three separate putative
class action complaints against RB in the Eastern District of Cali-
fornia, the Southern District of New York, and the Southern Dis-
trict of Florida -- all later consolidated into a single class-action com-
plaint in the Southern District of Florida. This consolidated class
action alleges that RB’s advertising for the Neuriva Products em-
ployed false and misleading statements in violation of the Florida
Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et
seq., the California Unfair Competition Law, Cal. Bus. & Prof.
Code § 17200 et seq., the California Consumers Legal Remedies
Act, Cal. Civ. Code § 1750 et seq., the California False Advertising
Law, Cal. Bus. & Prof. Code § 17500 et seq., and the New York
General Business Law, N.Y. Gen. Bus. L. § 349. It also alleges un-
just enrichment on the same theory.
The complaint identifies a number of different representa-
tions and statements made by RB as false and/or misleading. For
instance, Plaintiffs allege that RB’s advertising falsely leads consum-
ers to believe that the Neuriva Products have undergone clinical
and/or scientific testing to prove their efficacy, when, in fact, none
of the Products have been tested. See, e.g., Consol. Amended Class
Action Compl. ¶ 64 (“The singular message throughout Defend-
ants’ marketing of Neuriva is that Neuriva is scientifically and clin-
ically proven, as a matter of fact, to increase brain performance.”);
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id. at ¶ 66 (“Defendants’ statements on their labels and in their ad-
vertising convey to reasonable consumers, and reasonable con-
sumers would believe, that the state of the science regarding Neu-
riva and its ingredients has reached a level of scientific consensus
such that [Neuriva’s] claims of increased or enhanced brain perfor-
mance are established truths and statements of fact.”). And the
complaint further alleges that each of the Neuriva Products “trum-
pet[s]” various active ingredients, such as “coffee cherry extract,”
as having been clinically proven to improve brain physiology and
function, when in fact “scientific evidence shows that it is biochem-
ically impossible for the ingredients to improve brain perfor-
mance.”
Each of the five Named Plaintiffs in the operative complaint
allege that they purchased at least one Neuriva Product between
2019 and January 2020. But, notably, none of the Named Plaintiffs
allege that they purchased Neuriva De-Stress specifically; they only
allege that they purchased Neuriva Original, Neuriva Plus, or
“Neuriva,” unspecified.
B.
Before Plaintiffs consolidated the three pending actions in
the Southern District of Florida, RB moved to dismiss the Califor-
nia and Florida actions, raising a number of defenses including a
failure to sufficiently allege falsity, federal preemption, and failure
to plausibly allege that a reasonable consumer would be deceived
by Neuriva’s labels. While these motions were pending, the parties
engaged in settlement discussions, including two full-day
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mediations. On January 7, 2021, before any formal discovery had
been conducted, the parties filed a notice of settlement stating that
they had agreed “in principle” to settle Plaintiffs’ claims on a class-
wide basis. The Named Plaintiffs from the New York and Califor-
nia actions joined to file the operative complaint in the Southern
District of Florida, and, on February 8, Plaintiffs filed an unopposed
motion for preliminary approval of the Settlement. The district
court referred further proceedings to a magistrate judge.
The Settlement Agreement covered a Rule 23(b)(2) and
(b)(3) class of “[a]ll persons who purchased for personal consump-
tion and not for resale, one or more of the Neuriva Products . . .
between the dates of January 1, 2019 and the date of Preliminary
Approval of the Settlement by the Court.” Class members who
could provide proof of purchase would be able to recover up to
$32.50 per claim, with a maximum of two claims, for a total poten-
tial recovery of $65.00. Without proof of purchase, Class members
could only recover $5.00 per claim, with a maximum of four
claims, for a total potential recovery of $20.00. The Settlement
capped total recovery for the Class at $8 million. If the submitted
claims exceeded that amount, RB could either reduce the amount
paid on each claim pro rata, or terminate the Settlement entirely.
The Settlement also provided injunctive relief to the Class
in the form of required changes to Neuriva’s labeling and market-
ing for a period of two years, starting six months after the Settle-
ment became final. The Settlement enjoined RB from using the
terms “Clinically Proven,” “Science Proved,” “Clinically Tested
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8 Opinion of the Court 22-11232
and Shown,” “clinical studies have shown,” or similar “shown”
claims on Neuriva’s labeling. But RB could still market Neuriva’s
ingredients as “Clinically Tested” and “clinically tested to help sup-
port brain health.”
The Settlement Agreement also entitled six law firms repre-
senting the Plaintiffs to seek $2.9 million in attorneys’ fees. RB
agreed not to oppose Plaintiffs’ fee request (often referred to as a
“clear sailing” provision) and the parties agreed that, if the court
awarded less than $2.9 million in fees, the remainder would revert
to RB, rather than to the Class (a “kicker” provision). RB also
agreed that it would support Plaintiffs’ efforts to prove the value of
the proposed injunctive relief to the court to win approval of the
Settlement and their fee request.
Pursuant to the terms of the Settlement, Class members re-
leased all claims relating to misleading labeling and marketing of
the Neuriva Products.
C.
On April 23, 2021, the district court granted preliminary ap-
proval of the Settlement by entering a stipulated order that had
been attached to an unopposed motion filed by Plaintiffs. The or-
der “preliminarily certifie[d]” a nationwide settlement class of
[a]ll persons who purchased for per-
sonal consumption and not for resale,
one or more of the Neuriva Products
(Neuriva Original, Neuriva Plus, or
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Neuriva De-Stress), from Defendants or
an authorized reseller, in the United
States, between the dates of January 1,
2019 and the date of Preliminary Ap-
proval of the Settlement by the Court.
The district court concluded that “the class certification pre-
requisites set forth in Federal Rule of Civil Procedure 23(a), (b)(3),
and 23(b)(2)” had been met.
The preliminary approval order also appointed a third party,
the Angeion Group, to act as the “Settlement Administrator,” ap-
proved the parties’ suggested plan of notifying Class members of
the Settlement by placing advertisements on websites and social
media apps, set a final fairness hearing for August 17, 2021, and set
a deadline of July 27 for Class members to object to the terms of
the Settlement or opt out.
One Class member, Frank, timely objected to the terms of
the Settlement. 1 Frank is the director of litigation at the Hamilton
Lincoln Law Institute and a frequent objector to class-action settle-
ments around the country. Frank explained (in an accompanying
declaration) that he was a member of the Class because he had
1 An independent, non-profit advertising watchdog organization, Truth in Ad-
vertising, Inc. (TINA), also filed an amicus curiae brief in the district court rais-
ing many of the same points as Frank.
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purchased a 30-count package of Neuriva Original from Amazon
on February 2, 2021 for personal use for $21.95.
In his objection, Frank argued that the Settlement’s pur-
ported $8 million benefit was “illusory” because the claims process
was structured so that Class members were certain to receive only
a fraction of that amount, and that the Settlement’s injunctive relief
was not targeted at Class members like him, who had purchased
Neuriva Products in the past, and was worthless in any event. Be-
cause the Settlement’s value had been artificially inflated, Frank
contended that the $2.9 million in fees and costs sought by Class
counsel was disproportionately large -- larger, in fact, than the total
amount Class members would actually receive under the terms of
the Settlement Agreement. Frank therefore contended that the
Settlement must be disapproved based on Congress’ 2018 amend-
ments to Federal Rule of Civil Procedure 23 -- which require the
district court to consider “the effectiveness of any proposed
method of distributing relief to the class” and “the terms of any
proposed award of attorney’s fees, including timing of payment,”
when determining whether “the relief provided for the class is ad-
equate.” Fed. R. Civ. P. 23(e)(2)(C)(ii)-(iii).
The magistrate judge held the final fairness hearing and, on
December 15, 2021, issued a Report & Recommendation (“R&R”)
recommending that the district court approve the proposed Settle-
ment and award the requested $2.9 million in attorneys’ fees. At
the time of the fairness hearing, Plaintiffs’ counsel estimated that
the total amount in claims submitted by Class members would be
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between $1,049,797.50 and $1,181,225.00 -- or approximately 3x
less than the amount requested by Plaintiffs’ counsel for attorneys’
fees and costs. Ultimately, Class members would submit 59,877
claims worth a total of $1,109,182.50.
The R&R never formally certified the Class that had previ-
ously been “preliminarily” certified. Relying primarily on cases de-
cided before Congress’ 2018 amendments to Rule 23, the R&R
found that the Settlement’s monetary relief was properly valuated
at $8 million -- the amount purportedly made available for Class
members to claim. As for the injunctive relief, the R&R concluded
that it had “some value,” but did not assign a “specific dollar range”
because doing so “would be speculative.” Nevertheless, the R&R
recognized that the injunctive relief played an integral role in the
parties’ Settlement, and that it must be considered alongside the
Settlement’s monetary relief to determine whether all parts of the
Settlement Agreement together supported court approval. See R.
& R. Regarding Class Action Settlement at 85 (“[C]ourts rightly
consider the value of injunctive and monetary relief in assessing
whether a class action settlement provides sufficient relief to the
class.” (emphasis in original)). After examining “the dollar amount
of the settlement . . . through the prisms of potential recovery and
the value of the injunctive relief,” the R&R found that the Settle-
ment as a whole constituted an “excellent” result for the Class and,
therefore, that the Settlement was “fair, reasonable, and adequate”
under Federal Rule of Civil Procedure 23(e)(2).
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Frank objected to the R&R on December 29, 2021. On
March 17, 2022, the district court overruled Frank’s objection and,
in a short order, adopted the R&R in full without additional analy-
sis.
Frank’s timely appeal followed.
II.
Questions of the litigants’ standing may be raised at any
time, and are reviewed de novo. A&M Gerber Chiropractic LLC
v. GEICO Gen. Ins. Co., 925 F.3d 1205, 1210 (11th Cir. 2019). A
district court’s decision to approve a class-action settlement is re-
viewed for abuse of discretion. Johnson v. NPAS Sols., LLC, 975
F.3d 1244, 1251 n.2 (11th Cir. 2020); Day v. Persels & Assocs., LLC,
729 F.3d 1309, 1316 (11th Cir. 2013). “A district court abuses its
discretion if it applies an incorrect legal standard, follows improper
procedures in making the determination, or makes findings of fact
that are clearly erroneous.” Chi. Trib. Co. v. Bridgestone/Fire-
stone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001). “An error of law
is an abuse of discretion per se.” Managed Care Advisory Grp.,
LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145, 1153 (11th Cir.
2019) (citation omitted).
A.
We begin, as we must, with the issue of Frank’s standing to
bring this appeal. See United States v. Amodeo, 916 F.3d 967, 970
(11th Cir. 2019) (“On every writ of error or appeal, the first and
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fundamental question is that of jurisdiction, first, of this court, and
then of the court from which the record comes.” (emphasis in orig-
inal) (quoting Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379,
382 (1884))). The Named Plaintiffs argue that Frank lacks standing
for two reasons: (1) he was not actually deceived by RB’s market-
ing, and only purchased one of the Neuriva Products after he had
already heard about the lawsuit, and thus has not suffered an “in-
jury in fact” that is “concrete and particularized”; and (2) even if
Frank could establish injury-in-fact, his supposed injuries would
not be redressed by a favorable decision of this Court because the
Settlement Agreement will provide Frank with a full refund for his
purchase of one of the Neuriva Products, thus fully compensating
him.
To start, we note that the Named Plaintiffs’ “redressability”
argument is better understood as another flavor of their injury-in-
fact argument: because the Settlement Agreement will provide
Frank with a full refund for his purchase, the Named Plaintiffs es-
sentially contend that Frank cannot show that the district court’s
approval injured Frank in any way -- if anything, the Settlement
made Frank better off by giving him his money back. Regardless
of what label is applied, however, the Named Plaintiffs’ arguments
that Frank lacks standing because he was not actually deceived by
RB’s marketing or because the Settlement allows Frank to recover
the purchase price of one of the Neuriva Products are clearly fore-
closed by precedent. Frank has established that he is a member of
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14 Opinion of the Court 22-11232
the Class who would be bound by the judgment, so he has stand-
ing.
“Over the years, our cases have established that the irreduc-
ible constitutional minimum of standing contains three elements”:
(1) “an ‘injury in fact’”; (2) “a causal connection between the injury
and the conduct complained of”; and (3) “[a likelihood] that the in-
jury will be ‘redressed by a favorable decision.’” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted). In Devlin
v. Scardelletti, the Supreme Court held that nonnamed class mem-
bers “who have objected in a timely manner to approval of the set-
tlement at the fairness hearing” have “an interest in the settlement
that creates a ‘case or controversy’ sufficient to satisfy the constitu-
tional requirements of injury, causation, and redressability,” and
thus “have the power to bring an appeal without first intervening.”
536 U.S. 1, 6-7, 14 (2002) (quoting Lujan, 504 U.S. at 555). In other
words, an objector’s status as a member of the class who is bound
by the district court’s judgment is itself enough to provide him or
her with standing to appeal the district court’s approval of a class-
wide settlement over his or her objection. See id. “Otherwise, class
members would be deprived of ‘the power to preserve their own
interests in a settlement that will ultimately bind them, despite
their expressed objections before the trial court.’” In re Equifax
Inc. Customer Data Sec. Breach Litig., 999 F.3d 1247, 1260-61 n.7
(11th Cir. 2021) (quoting Devlin, 536 U.S. at 10) (holding that
nonnamed class members who objected to district court approval
of class-action settlement and who had not opted out had Article
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III standing to appeal approval), cert. denied sub nom. Huang v.
Spector, 142 S. Ct. 431 (2021), and cert. denied sub nom. Watkins
v. Spector, 142 S. Ct. 765 (2022).
The Named Plaintiffs do not dispute that Frank is a member
of the Settlement Class -- nor could they. The Settlement defines
the relevant Class as “[a]ll persons who purchased for personal con-
sumption and not for resale, one or more of the Neuriva Products,
from [RB] or an authorized reseller, in the United States, between
the dates of January 1, 2019 and the date of Preliminary Approval
of the Settlement by the Court.” In voluminous affidavits filed
with the district court, Frank explained that he purchased a 30-
count bottle of Neuriva Original from Amazon for personal use for
$21.95 prior to the date of preliminary approval of the Settlement,
on February 2, 2021. By definition, the Settlement does not impose
any requirement that a purchaser have actually or subjectively
been deceived upon purchasing Neuriva products to be a member
of the Class. So Frank is a “member of the [C]lass bound by the
judgment,” regardless of whether he was actually deceived by RB’s
advertising. Devlin, 536 U.S. at 7; Berni v. Barilla S.p.A., 964 F.3d
141, 145-46 (2d Cir. 2020) (citing Devlin, 536 U.S. at 6-7) (holding
that objector to approval of class settlement for deceptive advertis-
ing claims had standing to appeal because he was a member of the
class despite admitting that he was not deceived by defendant’s
packaging).
Frank was injured by the district court’s approval of the Set-
tlement because the Settlement releases any potential claims he has
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16 Opinion of the Court 22-11232
against RB based on misleading labeling of the Neuriva Products.
Thus, he will be precluded from seeking other forms of relief, such
as those that were sought in the operative complaint but not in-
cluded in the Settlement Agreement (e.g., pre- and post-judgment
interest). And a favorable resolution of this appeal would obvi-
ously provide Frank with relief by vacating the district court’s ap-
proval of the Settlement Agreement. See Berni, 964 F.3d at 145-46
(“Once he established that he was a member of the class, he needed
to do no more in order to proceed with his objection. For the same
reason, he need do no more now to proceed with his appeal before
this Court.”). Frank has standing to pursue this appeal.
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B.
We turn now to the principal issue raised by this appeal:
whether the district court abused its discretion when it approved
the parties’ Settlement Agreement as “fair, reasonable, and ade-
quate” under Federal Rule of Civil Procedure 23(e)(2). Frank ar-
gues that the district court erred by overestimating the value of the
Settlement’s monetary and injunctive relief to Class members,
thereby approving an Agreement that awarded a disproportion-
ately high amount in attorneys’ fees and costs at the expense of the
Class.
We agree that the district court’s assessment of whether the
Settlement was fair, reasonable, and adequate was flawed, but for
a different and more basic reason. The Named Plaintiffs have failed
to allege any continuing or “imminent” harm in connection with
their past purchases of the Neuriva Products; thus, they lack stand-
ing to pursue the injunctive relief awarded by the Settlement, and
the district court lacked the power to grant that relief. The upshot
of this jurisdictional defect is that the district court’s approval order
must be set aside: because the value of the Settlement’s injunctive
relief formed an integral part of the district court’s calculus of its
overall fairness, the court’s approval of the Settlement was prem-
ised on a legal error and, as a result, was necessarily an abuse of
discretion.
1.
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Article III limits federal courts to deciding “Cases” and “Con-
troversies.” U.S. Const. art. III, § 2. Consequently, a plaintiff must
demonstrate that he or she has “[s]tanding to sue,” Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016), “throughout all stages of litiga-
tion,” Amodeo, 916 F.3d at 971 (citation omitted). This generally
means that the plaintiff must satisfy the three well-established re-
quirements discussed above: injury-in-fact, causation, and redress-
ability. See Lujan, 504 U.S. at 560-61. And “because injunctions
regulate future conduct, a party has standing to seek injunctive re-
lief” only if his injury in fact is “a real and immediate -- as opposed
to a merely conjectural or hypothetical -- threat of future injury.”
Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (emphasis in
original) (alteration adopted) (citation omitted).
This is true even if a plaintiff also seeks monetary relief for
past harm. As the Supreme Court has held, “a plaintiff must
‘demonstrate standing separately for each form of relief sought.’”
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210 (2021) (quoting
Friends of the Earth v. Laidlaw, 528 U.S. 167, 185 (2000)). Thus,
even if a plaintiff can establish standing to pursue separate claims
for monetary relief based on allegations of past harm, before a
court may grant that plaintiff injunctive relief, the plaintiff must
separately establish a threat of “real and immediate,” as opposed to
“conjectural or hypothetical,” future injury. City of Los Angeles v.
Lyons, 461 U.S. 95, 102, 105 (1983); cf. also TransUnion, 141 S. Ct.
at 2210 (“[A] plaintiff’s standing to seek injunctive relief does not
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necessarily mean that the plaintiff has standing to seek retrospec-
tive damages.”).
These principles apply with no less force in the class-action
context. See Lewis v. Casey, 518 U.S. 343, 357 (1996) (“That a suit
may be a class action . . . adds nothing to the question of standing,
for even named plaintiffs who represent a class must allege and
show that they personally have been injured, not that injury has
been suffered by other, unidentified members of the class to which
they belong and which they purport to represent.” (quotation
marks and citation omitted)). “Thus, it is well-settled that prior to
the certification of a class, and technically speaking before under-
taking any formal typicality or commonality review, the district
court must determine that at least one named class representative
has Article III standing to raise each class subclaim.” Prado-
Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000).
Here, the district court did not assure itself of the Named
Plaintiffs’ standing to seek injunctive relief before approving the
parties’ Settlement Agreement, a requirement that it was obliged
to satisfy before finally signing off on the case. See Frank v. Gaos,
139 S. Ct. 1041, 1046 (2019) (holding that federal courts’ “obligation
to assure [them]selves of litigants’ standing under Article III. . . .
extends to court approval of proposed class action settlements.”).
Though Frank has not raised this issue on appeal, the obligation to
ensure that the Named Plaintiffs had standing in the district court
remains in this Court. Univ. of S. Ala. v. Am. Tobacco Co., 168
F.3d 405, 410 (11th Cir. 1999) (“[I]t is well settled that a federal court
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20 Opinion of the Court 22-11232
is obligated to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking. . . . [A]n appellate federal court must
satisfy itself not only of its own jurisdiction, but also of that of the
lower courts in a cause under review.” (quotation marks and cita-
tion omitted)).
It is apparent that the Named Plaintiffs lack Article III stand-
ing to pursue their claims against RB for injunctive relief. The mo-
vant’s burden of proof at the class-certification stage is unclear. See
1 William B. Rubenstein, Newberg & Rubenstein on Class Actions
§ 7:21 (6th ed. 2022). For purposes of this appeal, we assume with-
out deciding that the applicable standard is a pleading standard. See
Lujan, 504 U.S. at 561 (“At the pleading stage, general factual alle-
gations of injury resulting from the defendant’s conduct may suf-
fice [to establish standing], for on a motion to dismiss we presum[e]
that general allegations embrace those specific facts that are neces-
sary to support the claim.” (second alteration in original) (quota-
tion marks and citation omitted)). The Named Plaintiffs fail to sat-
isfy even that low burden. The complaint alleges only past harm
as a result of RB’s misrepresentations; the Named Plaintiffs allege
that they purchased Neuriva Products because they saw RB’s mis-
leading representations regarding the Neuriva Products and their
ingredients, and suffered economic injury as a result. But “[t]he
fact that [the Named Plaintiffs] may have been injured by [RB’s
misleading statements and omissions] in the past . . . cannot be suf-
ficient to establish an injury in fact that would support injunctive
relief.” Duty Free Ams., Inc. v. Estée Lauder Cos., 797 F.3d 1248,
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22-11232 Opinion of the Court 21
1271-72 (11th Cir. 2015). The Named Plaintiffs also must allege
some “lasting impact or likely future injury.” Id. at 1272. On this
front, all the Named Plaintiffs offer is an allegation that they
“would like to purchase Defendants’ products if they truly im-
proved brain performance,” but are “unable to rely on Defendants’
representations regarding the effectiveness of Defendants’ prod-
ucts in deciding whether to purchase Defendants’ products in the
future.” This is plainly insufficient to establish a threat of imminent
or actual harm.
We need look no further than the Supreme Court’s seminal
decision in Lujan to see why. There, a group of environmental
organizations challenged a Department of the Interior regulation
that interpreted certain provisions of the Endangered Species Act
to apply only to government actions taken domestically or on the
high seas. 504 U.S. at 558-59. On summary judgment, the plaintiffs
attempted to establish their standing to seek injunctive relief by
submitting affidavits from several of their members stating that the
agency’s rule would harm them prospectively because it would “in-
creas[e] the rate of extinction of endangered and threatened spe-
cies” that those members hoped to one day see. Id. at 562-63. For
instance, one member stated that she had previously observed the
habitat of the endangered Nile crocodile in Egypt, and that she “in-
tend[ed] to do so again, and hope[d] to observe the crocodile di-
rectly.” Id. at 563. Another member said in an affidavit and again
at deposition that she had previously observed an endangered spe-
cies habitat in Sri Lanka, and that she “intend[ed] to return to Sri
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22 Opinion of the Court 22-11232
Lanka in the future” and “hope[d]” to spot the species then, but had
no current plans to return. Id. at 563-64.
The Supreme Court held that the plaintiffs’ averments were
insufficient to confer on them standing because they “contain[ed]
no facts . . . showing how damage to the species will produce ‘im-
minent’ injury to [the plaintiffs].” Id. at 564. The Court explained
that the affiants’ past visits to species’ habitats were not enough be-
cause “[p]ast exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief . . . if unac-
companied by any continuing, present adverse effects.” Id. (quot-
ing Lyons, 461 U.S. at 102). And the members’ “profession of an
‘intent’ to return to the places they had visited before” was insuffi-
cient because “[s]uch ‘some day’ intentions -- without any descrip-
tion of concrete plans, or indeed even any specification of when the
some day will be -- do not support a finding of the ‘actual or immi-
nent’ injury that our cases require.” Id. (emphasis in original)
(cleaned up).
The same is true in this case. The allegations that the
Named Plaintiffs previously purchased Neuriva Products do not
“in [themselves] show a present case or controversy regarding in-
junctive relief,” and the complaint does not allege any “continuing,
present adverse effects” associated with prior purchases of the Neu-
riva Products. Id. Nor do the Named Plaintiffs provide “any de-
scription of concrete plans” to purchase the Neuriva Products again
in the future. Id. Allegations that the Named Plaintiffs “would
like” to purchase RB’s products at some undefined point in the
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22-11232 Opinion of the Court 23
future, much like the Lujan affiants’ statements that they “in-
tend[ed]” to return to the species’ habitats or “hope[d]” to spot the
species themselves someday, without more, “do not support a find-
ing of the ‘actual or imminent’ injury that our cases require.” Id.If anything, this case presents an even more remote and at-
tenuated risk of future harm than in Lujan, because none of the
Named Plaintiffs have even alleged that they intend to buy the
Neuriva Products again. The Named Plaintiffs only state that they
“would like” to purchase products from RB “if” RB develops prod-
ucts that “truly improve[] brain performance.” The conditional na-
ture of their allegations compels the conclusion: any alleged harm
to the Named Plaintiffs is “conjectural [and] hypothetical,” not “ac-
tual or imminent,” as Article III demands. Id. at 560. Indeed, the
operative complaint provides every reason to doubt that the
Named Plaintiffs will ever purchase the Neuriva Products again.
See Berni, 964 F.3d at 147-48 (holding that past purchaser of decep-
tively advertised boxes of pasta lacked standing to pursue injunc-
tive relief on behalf of a class because “there is no reason to believe
that all, or even most, of the class members -- having suffered the
harm alleged -- will choose to buy [the product] in the future”). As
the Named Plaintiffs themselves allege, the Neuriva Products as
currently constituted are “worthless,” and scientific evidence has
shown that “it is biochemically impossible for the ingredients [in
the Neuriva Products] to improve brain performance.” And the
Named Plaintiffs never allege if or when RB will be able to produce
any products that actually improve brain performance in line with
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24 Opinion of the Court 22-11232
their expectations. The only products that the Named Plaintiffs ar-
guably express any interest in purchasing are products that do not
yet exist, and may never exist -- a plainly insufficient expression of
future harm to confer Article III standing. See Duty Free Ams., 797
F.3d at 1272 (holding that duty free store’s claim that it would suf-
fer injury if it resumed purchasing products from a vendor that al-
legedly imposed anticompetitive display space and inventory re-
strictions as a precondition to purchase did not establish standing
to pursue injunctive relief because plans to possibly purchase prod-
ucts in the future could not “be characterized as a ‘concrete’ or ‘ac-
tual’ injury in fact because, by its very terms, it has not yet oc-
curred, and indeed may never occur”). The Named Plaintiffs there-
fore lack Article III standing to pursue prospective injunctive relief
against RB.
Trying to resist this conclusion, the Named Plaintiffs invoke
Davidson v. Kimberly-Clark Corp., a case where the Ninth Circuit
held that “a previously deceived consumer may have standing to
seek an injunction against false advertising or labeling, even though
the consumer now knows or suspects that the advertising was false
at the time of the original purchase.” 889 F.3d 956, 969 (9th Cir.
2018). That case was also a putative consumer class action,
brought by a named plaintiff who had purchased baby wipes. Id.
at 961. The named plaintiff alleged that the defendant had falsely
advertised that the wipes would be “flushable,” and sought injunc-
tive relief requiring changes in the defendant’s marketing. Id. The
Ninth Circuit concluded that the plaintiff had standing to seek
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22-11232 Opinion of the Court 25
injunctive relief because she had “adequately alleged that she faces
an imminent or actual threat of future harm caused by Kimberly-
Clark’s allegedly false advertising,” pointing to allegations that the
plaintiff “continues to desire to purchase wipes that are suitable for
disposal in a household toilet,” and “would purchase truly flushable
wipes manufactured by [Kimberly-Clark] if it were possible.” Id. at
970-71. The court reasoned that these allegations demonstrated
harm in the form of an informational injury -- the plaintiff’s “inabil-
ity to rely on the validity of the information advertised on Kim-
berly-Clark’s wipes despite her desire to purchase truly flushable
wipes.” Id. at 971.
We remain unpersuaded. The Ninth Circuit’s reasoning
rests on an assumption that the plaintiff will, in fact, try to purchase
the defendant’s products again in the future, at which point the
plaintiff will again be deceived by the defendant’s advertising, or at
least doubt its veracity. See id. at 970. But, in this case, as we’ve
described, the Named Plaintiffs’ complaint provides us with no ba-
sis to conclude that they have “actual or imminent” plans to pur-
chase RB’s products again. Quite the opposite: all indications are
that the Named Plaintiffs will not purchase the Neuriva Products
again, given the plethora of false statements allegedly made in RB’s
advertising and the purportedly “worthless” nature of the Prod-
ucts. See Berni, 964 F.3d at 147-48. Because the Named Plaintiffs
do not allege when, if ever, RB might produce a product they
would be interested in purchasing, their allegations are exactly the
sort of “‘some day’ intentions . . . without any description of
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26 Opinion of the Court 22-11232
concrete plans” that the Supreme Court has instructed are insuffi-
cient to confer Article III standing. See Lujan, 504 U.S. at 564.
Thus, the Named Plaintiffs lack standing; the district court
was without jurisdiction to grant their requested injunctive relief
against RB; and, as a result, the district court’s order approving the
Settlement Agreement must be vacated. See Frank, 139 S. Ct. at
1046. This is because, as the magistrate judge himself properly rec-
ognized in his R&R, the decision whether to approve a class-action
settlement is a holistic one; the various parts of a settlement must
be considered in concert to determine whether the Settlement as a
whole provides relief to the Class that is “fair, reasonable, and ade-
quate.” Fed. R. Civ. P. 23(e)(2); see also Brooks v. Ga. State Bd. of
Elections, 59 F.3d 1114, 1119-20 (11th Cir. 1995) (“We are not free
to delete, modify or substitute certain provisions of the settlement.
The settlement must stand or fall as a whole.” (citation omitted)).
In other words, the district court’s determination that the Settle-
ment’s injunctive relief would provide value to the class was inex-
tricably bound up with its determination that the Settlement in its
entirety was fair, reasonable, and adequate. Because the district
court lacked the power to grant this injunctive relief, its determi-
nation was based on a legal error, and must be set aside as an abuse
of discretion. See Managed Care, 939 F.3d at 1153.
2.
In a filing submitted after oral argument, Frank urges us to
bypass this jurisdictional inquiry, claiming that, even if the Named
Plaintiffs lack standing to pursue injunctive relief, we need not
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22-11232 Opinion of the Court 27
vacate the district court’s approval of the Settlement Agreement on
that ground because “the Court still has appellate jurisdiction over
the complaint as a whole because of the damages claims,” and “[a]
class settlement may include relief that plaintiffs could not win at
trial.” But, as we see it, neither of these contentions is convincing.
First, a plaintiff’s standing to pursue claims for damages does
not by itself confer the district court with jurisdiction “over the
complaint as a whole.” As we’ve noted already, the Supreme
Court has instructed us that federal courts are to assess a plaintiff’s
standing -- and, by extension, their jurisdiction -- “separately for
each form of relief sought.” TransUnion, 141 S. Ct. at 2210 (cita-
tion omitted); see also id. at 2214 (reversing judgment affirming re-
lief for plaintiffs because plaintiffs lacked standing to obtain some,
but not all, of the relief granted); see also Frank, 139 S. Ct. at 1046(“[F]ederal courts lack jurisdiction if no named plaintiff has stand-
ing.”).
Second, to the extent Frank suggests that the district court
did not need jurisdiction to approve a settlement agreement that
contained injunctive relief, that argument falls short as well. Citing
Local No. 93, International Association of Firefighters v. City of
Cleveland, 478 U.S. 501 (1986), Frank says that “[a] class settlement
may include relief that plaintiffs could not win at trial.” But this
reliance on Firefighters elides an important distinction between a
court’s jurisdiction to entertain a claim or to grant relief, and a
plaintiff’s substantive right to relief under the particular statute that
forms the basis of his or her claim.
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28 Opinion of the Court 22-11232
Firefighters involved the district court’s approval of a con-
sent decree between the City of Cleveland and a class of Black and
Hispanic firefighters who were already employed with the City or
who would apply to be hired by the City in the future, to resolve a
Title VII suit alleging that the City had discriminated against mi-
nority firefighters in hiring and work assignments on the basis of
their race and national origin. 478 U.S. at 504, 509-10. As part of
the consent decree, the City agreed to use “race-conscious” desig-
nations in its hiring and promotion practices to ensure a minimum
number of minority firefighters would be hired for or promoted to
certain positions. Id. The firefighters’ union objected, arguing that
the consent decree should not be approved because it would bene-
fit individuals who had not themselves actually been victims of the
City’s discriminatory practices. According to the union, this would
run contrary to § 706(g) of Title VII’s prohibition against entry of
an “order of the court” requiring “hiring, reinstatement, or promo-
tion” of an individual who had been denied employment or ad-
vancement “for any reason other than discrimination on account
of race, color, religion, sex, or national origin.” Id. at 513-14 (em-
phasis omitted) (quoting 42 U.S.C. § 2000e–5(g)).
The Supreme Court disagreed with the union and affirmed
the district court’s approval of the consent decree. Id. at 525. Even
if § 706(g) would have prevented the plaintiff class from obtaining
the relief contained in the consent decree following a trial, the
Court held that the statute did not prohibit the district court from
granting the relief as part of a consent decree because § 706(g)
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22-11232 Opinion of the Court 29
speaks only of “order[s] of the court,” and “consent decrees are not
included among the ‘orders’ referred to in [the statute].” Id. at 521.
Crucially for our purposes, Firefighter’s holding was limited to an
interpretation of the statutory language of Title VII, id. at 513-14
n.5; nowhere did the Court purport to authorize district courts to
enter consent decrees or approve class-action settlements that pro-
vide relief that the district court lacks the power to grant. To the
contrary, the Court expressly noted that “a consent decree must
spring from and serve to resolve a dispute within the court’s sub-
ject-matter jurisdiction,” id. at 525 (emphasis added), and reiterated
that district courts are only empowered to enter a consent decree
“to the extent that [it] is not otherwise shown to be unlawful,” id.
at 526. Firefighters thus has no bearing on a district court’s “ob-
ligat[ion] to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking,” Univ. of S. Ala., 168 F.3d at 410,
which, again, “extends to court approval of proposed class action
settlements.” Frank, 139 S. Ct. at 1046; see also Ex parte McCardle,
74 U.S. (7 Wall.) 506, 514 (1869) (“Without jurisdiction the court
cannot proceed at all in any cause. Jurisdiction is power to declare
the law, and when it ceases to exist, the only function remaining to
the court is that of announcing the fact and dismissing the cause.”).
Accordingly, we are required to vacate the district court’s
approval of the Settlement Agreement and remand this case to the
district court for further proceedings, including analysis of whether
any settlement agreement entered into by the parties is “fair, rea-
sonable, and adequate” under Federal Rule of Civil Procedure
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30 Opinion of the Court 22-11232
23(e)(2). Whatever value the Settlement’s injunctive relief pro-
vided, it may no longer be part of the district court’s calculus -- on
remand, the court should account only for relief that the Named
Plaintiffs have standing to pursue and that it has jurisdiction to
grant when assessing the overall fairness of any settlement (assum-
ing, of course, that the parties reach a new settlement agreement
and submit it for the district court’s approval).
C.
We observe that several other considerations will be rele-
vant to the district court on remand. We highlight three such con-
cerns.
First, it remains our law that at least one class representative
must establish that he or she has Article III standing to represent
each claim brought on behalf of a class (or subclass) by showing
that he or she has “suffer[ed] the same injury as the class members.”
See Prado-Steiman, 221 F.3d at 1279 (citation omitted). While this
issue overlaps in some ways with the requirements of commonal-
ity, typicality, and adequacy set forth in Federal Rule of Civil Pro-
cedure 23(a), the issues are quite distinct. See Rubenstein, supra,
at § 2:6 (“The concepts of standing and Rule 23(a) therefore appear
related as they both aim to measure whether the proper party is
before the court to tender the issues for litigation. But they are in
fact independent criteria. They spring from different sources and
serve different functions.”). The standing requirement arises, of
course, from Article III’s command that federal courts resolve only
“Cases” or “Controversies,” and ensures that a plaintiff has “such a
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22-11232 Opinion of the Court 31
personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues[.]”
Baker v. Carr, 369 U.S. 186, 204 (1962). By extension, then, the
requirement that at least one class representative have standing to
raise each class claim or subclaim by showing that he or she has
suffered “the same injury” ensures that the named plaintiffs possess
the requisite interest in litigating all the absent class members’
claims. See Prado-Steiman, 221 F.3d at 1279 (“[W]e have repeat-
edly held that a class representative must be part of the class and
possess the same interest and suffer the same injury as the class
members.” (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147,
156 (1982)). This requirement must be satisfied before final judg-
ment is entered in the form of an approval of a class-action settle-
ment. Frank, 139 S. Ct. at 1046.
In Prado-Steiman, we considered an appeal from a district
court’s order granting class certification to a broad class of devel-
opmentally disabled individuals who had allegedly been deprived
of benefits to which they were entitled under Florida’s Home and
Community Based Waiver (HCBW) program. 221 F.3d at 1280.
We agreed with the defendants that the district court had abused
its discretion in granting class certification because it had failed to
resolve whether “at least one named representative of each class or
subclass ha[d] standing for each proffered class or subclass claim.”
Id. We also observed that because the class members had not all
been injured by the same violative conduct, or “bad act[s],” on the
part of the defendants, the “alleged injuries may be better
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32 Opinion of the Court 22-11232
addressed through several subclasses rather than one large class.”
Id. at 1280-81. The complaint alleged that the defendants had failed
to provide some class members with approved services in a reason-
ably prompt manner, while allegedly denying other class members’
claims without due process, and, for still other class members, the
defendants had allegedly failed to adjudicate claims applications in
a reasonably prompt manner. Id. at 1281-82. Because it was not
clear whether any named plaintiff had individual standing to bring
each of the class or subclass claims, we remanded for the district
court to resolve fact-specific questions on that issue. Id. at 1280.
In Fox v. Ritz-Carlton Hotel Co., by contrast, we held that a
named plaintiff had “class representative standing” to assert claims
on behalf of a class of persons who had dined at Ritz-Carlton res-
taurants across Florida, because his alleged injuries and those of the
absent class members were identical. 977 F.3d 1039, 1047 (11th Cir.
2020). The named plaintiff had eaten at three Ritz-Carlton restau-
rants all located at the hotel’s Key Biscayne location, and alleged
that, each time, the hotel had illegally charged him an automatic
gratuity and sales tax without sufficiently warning him of the
charges on the menus or on the faces of the bills, in violation of
Florida law. Id. at 1043-44. Though the named plaintiff had not
visited any other Ritz-Carlton locations in Florida, he sought to
represent a class of individuals who had dined at all of its 49 restau-
rants throughout the state. Id. We concluded that the named
plaintiff had standing to raise the absent class members’ claims be-
cause he had adequately alleged that Ritz-Carlton employed the
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22-11232 Opinion of the Court 33
same deceptive practices at each of its restaurants (i.e., it failed to
warn customers of the extra charges on the menu or the bill in the
same manner), and, thus, he and the absent class members had suf-
fered the “same economic injury.” Id. at 1047. It didn’t matter that
he and the absent class members had suffered those injuries “on
different days at different restaurants.” Id.; see also Mills v. Fore-
most Ins. Co., 511 F.3d 1300, 1302, 1307 (11th Cir. 2008) (holding
that victims of Hurricane Frances had class representative standing
to represent victims of other hurricanes that had hit Florida that
year in suit against insurance company for breach of contract be-
cause the absent class members’ claims were “identical” to those
brought by the named plaintiffs).
Here, there is some question as to whether any Named
Plaintiff has standing to raise certain claims of misrepresentations
regarding one of the three Neuriva Products: Neuriva De-Stress.
None of the Named Plaintiffs alleges that he or she purchased this
Product. It is true that some of RB’s alleged falsehoods and mis-
representations are common to all three Neuriva Products, and the
Named Plaintiffs may well have standing to assert claims based on
those misrepresentations on behalf of all absent class members --
even those who only purchased Neuriva De-Stress. After all,
claims of injury that are based on the same misrepresentations tar-
get the same conduct by RB, and the “injury suffered” will be iden-
tical. Prado-Steiman, 221 F.3d at 1281; see also Fox, 977 F.3d at
1047. Thus, for example, the Named Plaintiffs charge that RB
falsely advertises that coffee cherry extract -- an ingredient
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34 Opinion of the Court 22-11232
common to all three Neuriva Products -- has been “clinically
proven to increase levels of the vital neuroprotein BDNF, known
to strengthen connections between brain cells.”
Other claims, however, are based on alleged misrepresenta-
tions that only apply to Neuriva De-Stress. The complaint alleges,
for instance, that RB claims that Neuriva De-Stress has been proven
to benefit “stress reduction” and “relaxation” -- benefits RB does
not claim for Neuriva Original or Neuriva Plus -- and that one of
the active ingredients unique to Neuriva De-Stress -- Melon Con-
centrate -- “is a common source of the potent antioxidant SOD (Su-
perOxide Dismutase) that is naturally found in the body to fight
oxidative stress.” The Named Plaintiffs may not have standing to
raise these claims because they may not have suffered the same in-
jury related to these alleged misrepresentations as absent class
members who purchased Neuriva De-Stress. See Prado-Steiman,
221 F.3d at 1281. The district court should work its way through
these issues on remand to ensure that at least one Named Plaintiff
has standing to assert each claim or subclaim on behalf of the class
prior to approving any class-wide settlement or granting class cer-
tification. See id. at 1279.
Which brings us to a second point: on remand, the district
court should determine whether to certify a class and, if so, enter
an appropriate certification order before deciding whether to ap-
prove class-wide relief. See Fed. R. Civ. P. 23(a)-(c), (e). The closest
the district court came to certifying a class in this case was to “pre-
liminarily” certify a class for the purposes of settlement in its
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22-11232 Opinion of the Court 35
preliminary approval order. Conducting a meaningful analysis of
whether a specifically defined class or subclass meets Rule 23(a)’s
requirements of numerosity, commonality, typicality, and ade-
quacy of representation, as well as Rule 23(b)(3)’s predominance
and superiority requirements, will ensure that “the named plaintiffs
have incentives that align with those of absent class members so as
to assure that the absentees’ interests will be fairly represented.”
Prado-Steiman, 221 F.3d at 1279 (quoting Baby Neal ex rel. Kanter
v. Casey, 43 F.3d 48, 57 (3d Cir. 1994)); see also Rubenstein, supra,
at § 3:29. Given the disparate nature of some of the claimed mis-
representations regarding Neuriva De-Stress and the other Neuriva
Products, it may be helpful to divide any eventually certified class
into different subclasses based on the content of the misrepresen-
tations by which different class representatives -- and any corre-
sponding class members -- claim to have been injured. See Prado-
Steiman, 221 F.3d at 1280-81 (noting that the “disparate” injuries
suffered by different class members “may be better addressed
through several subclasses rather than one large class”). We “leave
the ultimate decision as to what kinds of appropriate subclasses to
create [, if any,] to the sound discretion of the district court.” Id. at
1282.
Finally, the district court should be sure to consider the
points raised by Frank in this appeal when considering whether any
settlement agreement is “fair, reasonable, and adequate” under
Rule 23(e)(2). See Br. for Appellant at 14-37. Thus, the district
court should consider the impact of Congress’ 2018 amendments
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36 Opinion of the Court 22-11232
to Rule 23(e)(2)(C) on its analysis of the fairness of a class-action
settlement, including “the effectiveness” of the settlement’s
“method of distributing relief to the class,” Fed. R. Civ. P.
23(e)(2)(C)(ii), and whether the proposed attorneys’ fees are dispro-
portionately large compared to the amount of relief reasonably ex-
pected to be provided to the class. See, e.g., Briseño v. Henderson,
998 F.3d 1014, 1026-27 (9th Cir. 2021) (holding that class settlement
was not “fair, reasonable, and adequate” because 2018 amend-
ments to Rule 23 require courts to “scrutiniz[e] the fee arrange-
ment for potential collusion or unfairness to the class,” and settle-
ment at issue gave plaintiffs’ counsel a disproportionate distribu-
tion of the settlement, the parties agreed to a “clear sailing arrange-
ment,” and the agreement contained a “‘kicker’ or ‘reverter’
clause”); cf. also Pearson v. NBTY, Inc., 772 F.3d 778, 787 (7th Cir.
2014) (reversing approval of class-action settlement that provided
“a meager recovery for the class but generous compensation for
the lawyers” because it “s[old] out the class,” prior to 2018 amend-
ments).
In short, we vacate the Settlement approval by the district
court and remand the case for further proceedings consistent with
this opinion.
VACATED AND REMANDED.