author: BEAM, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Andre Michael LAFONTAINE, III, Defendant-Appellant.
    No. 16-1440
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 13, 2017
    Filed: February 8, 2017
    Rehearing and Rehearing En Banc Denied April 7, 2017

      Counsel who presented argument on behalf of the appellant was Heather Quick, AFPD, of Cedar Rapids, IA.
    Counsel who presented argument on behalf of the appellee was Richard L. Murphy, AUSA, of Cedar Rapids, IA.
    Before LOKEN, BEAM, and BENTON, Circuit Judges.

       Judge Kelly did not participate in the consideration or decision of this matter.

   BEAM, Circuit Judge.

Andre Michael LaFontaine was convicted of making a threatening communication in violation of 18 U.S.C. § 875(c) and sentenced to 18 months’ imprisonment. He appeals his conviction and sentence, arguing that the government committed prose-cutorial error and the district court erred in admitting evidence of a prior perceived threatening statement. LaFontaine also challenges the district court’s imposition of several special conditions of supervised release. For the reasons discussed below, we affirm.

I. BACKGROUND

In November 2010, LaFontaine was charged in state court with, and convicted of, operating while intoxicated, second offense, and eluding, in Iowa Falls, Iowa. The Iowa Court of Appeals affirmed the convictions. Believing that a conspiracy to obstruct justice existed between the state court, police, and attorneys, LaFontaine complained to a local law firm, the President of the United States, and the International Association of Anti-Corruption Authorities. LaFontaine then filed two civil lawsuits in federal court: one against the Iowa Falls Police Department and another •against the police officers who arrested him. The district court dismissed both lawsuits, and this court affirmed the dismissals. LaFontaine was unsuccessful in appealing his federal lawsuits to the United States Supreme Court.

On October 1, 2018, LaFontaine contacted a federal court employee about his lawsuits and stated, “Sometime we are actually going to meet up, and I’m looking forward to it. I can do what I want to do. You’re a baby.” The United States Marshals Service investigated the threatening remarks and interviewed LaFontaine. During an interview in January 2014, La-Fontaine admitted that he was frustrated when he made the call but denied making a threat. He said it would be “foolish to do so,” and that he “[knew] better than that.” LaFontaine then asked the FBI to investigate the Iowa Falls Police Department for civil rights violations. FBI Agent Tomlin-son told LaFontaine that there was no basis for his complaint.

On July 20, 2015, LaFontaine called the Department of Justice (DÓJ) in Washington, D.C., to complain about Agent Tomlin-son. He left the following voice mail, which led to the conviction appealed in this case:

Yeah my name is Andre Michael LaFon-taine, the third, I’m from Iowa Falls, Iowa, co-state litigant. What I’ve done is sent you fuckin’ retards evidence of corruption multitude of times, I’m getting really fuckin’ sick and tired of you people disregarding all the evidence, the profound evidence, that I’ve sent you, and put in front of Craig, special agent of the FBI, Craig Tomlinson’s face — and have him call me while I record him and tell me that the evidence is no fucking good. So what I’m telling you for the last fuckin’ time is that if this fuckin’ writ isn’t satisfied or investigated properly, these judges in Eldora are gonna get their fuckin’ throats cut, you fuckin’ niggers better do your fuckin’ job.

Special Agent Kieffer with the Federal Protective Service investigated the perceived threatening voice mail. During an interview on July 28, 2015, at LaFontaine’s residence, LaFontaine admitted that he left the voice mail with the DOJ and intended for the message to “spark action” on his complaints about the Iowa Falls Police Department. According to Kieffer, LaFontaine also admitted during the interview that he intended for the communication to be threatening. LaFontaine was in possession of a pocket knife at the time of the interview. A search of his residence, pursuant to a search warrant, yielded a variety of documents from disputes with others, including police officers, and audio recordings of phone calls made to numerous courts and law enforcement officials. In a letter addressed to the FBI, LaFon-taine stated that he intended to rescind his United States citizenship and “may have to take a life just to defend [himself]” since the government had not done anything to resolve his grievances.

On August 12, 2015, LaFontaine was indicted for transmitting a threatening communication in interstate commerce, in violation of 18 U.S.C. § 875(c). Prior to trial, LaFontaine filed a motion to exclude any evidence that he threatened the federal court employee, in October 2013. The government sought to use the evidence to show LaFontaine’s intent and lack of mistake. In light of the government’s response, LaFontaine requested that if the district court were to admit the evidence, the court should also allow content of the prior statements into evidence to support his claim that the statements were not threatening. The district court held that the statements were admissible under Federal Rule of Evidence 404(b) as evidence of LaFontaine’s intent or lack of mistake. At trial, a Deputy United States Marshal testified about the 2013 perceived threatening communication and the subsequent interview with LaFontaine. LaFon-taine was also allowed to present evidence about the content of the prior statements.

A jury found LaFontaine guilty on October 14, 2015. He then filed a motion for a new trial alleging that the district court erred by allowing evidence of the prior threatening communication. The district court denied the motion. With an offense level of twelve and a criminal history category of II, LaFontaine’s Guidelines range was twelve to eighteen months. The Pre-sentence Investigation Report (PSR) also recommended the following special conditions of supervised release: (1) a substance abuse program; (2) a total alcohol ban, meaning that he was “prohibited from entering any establishment that holds itself out to the public to be a bar or tavern”; (3) a mental health program; (4) GPS monitoring; (5) housing in a residential reentry program; (6) a “no-contact” agreement; and (7) submission to random searches. LaFontaine objected to the GPS monitoring special condition in a sentencing memorandum. At sentencing, the district court determined that LaFontaine’s Guidelines range was twelve to eighteen months. The district court then heard argument on the sentence, including the conditions of supervised release, and considered the 18 U.S.C. § 3553(a) factors. The district court sentenced LaFontaine to eighteen months’ imprisonment, to be followed by a three-year term of supervised release. The court also imposed the special conditions of supervised release listed above.

LaFontaine now appeals, arguing that (1) the government repeatedly committed prosecutorial misconduct during its closing argument; (2) the district court erred in admitting the Rule 404(b) evidence; (3) the district court abused its discretion in imposing GPS monitoring during supervised release; and (4) the district court’s imposition of a total alcohol ban and substance abuse treatment during supervised release was plain error.

II. DISCUSSION

A. Prosecutorial Misconduct

LaFontaine argues that the government repeatedly committed prosecuto-rial misconduct during closing argument by stating that LaFontaine was not presumed innocent, indirectly commenting on LaFontaine’s failure to testify, expressing its opinion on LaFontaine’s guilt, and personally attacking LaFontaine’s counsel. We disagree. “The test for reversible pros-ecutorial misconduct has two parts: (1) the prosecutor’s remarks or conduct must in fact have been improper, and (2) such remarks or conduct must have prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial.” United States v. Jones, 795 F.3d 791, 799 (8th Cir. 2015) (quoting United States v. Wilkens, 742 F.3d 354, 361 (8th Cir. 2014)). Because LaFontaine failed to object to the alleged misconduct, we review for plain error. United States v. Alaboudi, 786 F.3d 1136, 1141 (8th Cir. 2015). Under the plain error standard of review, the defendant must show that the error was “clear, prejudicial, and affected the trial’s outcome.” Id. In other words, the error must be such that it “affectfs] the fairness, integrity or public reputation of judicial proceedings.” Iff (quoting United States v. Wadlington, 233 F.3d 1067, 1079 (8th Cir. 2000)).

First, LaFontaine takes issue with the government’s statement that La-Fontaine “absolutely does not stay presumed innocent.” LaFontaine, however, takes the government’s statement out of context. After the above-quoted statement, the government reviewed previously presented evidence that rebutted the presumption of innocence and stated that “[h]e’s been proven guilty beyond a reaT sonable doubt.” It is undisputed that the presumption of innocence “remains with the defendant through every stage of the trial, most importantly, the jury’s deliberations” and that the presumption is “extinguished only upon the jury’s determination of guilt beyond a reasonable doubt.” United States v. Crumley, 528 F.3d 1053, 1065 (8th Cir. 2008) (quoting Kellogg v. Skon, 176 F.3d 447, 451 (8th Cir. 1999)). Here, both the preliminary and final jury instructions correctly stated this rule of law. Neither party objected to the jury instructions, and the government’s argument simply mirrored these instructions. There is no prosecutorial misconduct when the government does “little more than paraphrase the court’s instruction.” United States v. Johnson, 639 F.3d 433, 442 (8th Cir. 2011). Moreover, “[a]n advocate is permitted considerable latitude in responding to his opponent’s arguments.” United States v. Collins, 642 F.3d 654, 658 (8th Cir. 2011) (quoting United States v. Beaman, 361 F.3d 1061, 1065 (8th Cir. 2004)). During closing argument, LaFontaine argued that he “remains presumed innocent, and the government has failed to overcome that presumption.” The government then responded to that argument by stating that LaFontaine did not stay presumed innocent because he had, in fact, been proven guilty beyond a reasonable doubt. This argument does not exceed the wide latitude afforded attorneys when responding to opposition. See id.

Second, LaFontaine argues that the government indirectly commented on LaFontaine’s failure to testify when it stated that “[t]he only evidence in this courtroom is what you heard, on that point, from this agent.” An indirect comment on the defendant’s failure to testify “rise[s] to the level of a constitutional violation if the statement ] either (1) manifest[s] the prosecutor’s intention to call attention to the defendant’s failure to testify, or (2) [is] such that the jury would naturally and necessarily understand the comments as highlighting the defendant’s failure to testify.” Herrin v. United States, 349 F.3d 544, 546 (8th Cir. 2003). To fit within the second prong of the test, “the question is not whether the jury possibly or even probably would view the challenged remark in this manner, but whether the jury necessarily would have done so.” United States v. Gardner, 396 F.3d 987, 992 (8th Cir. 2005) (quoting United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996)).

Here, the government had to prove that LaFontaine intended for the communication to be threatening or at least knew that the communication would be viewed as threatening. Elonis v. United States, — U.S. -, 135 S.Ct. 2001, 2012, 192 L.Ed.2d 1 (2015). When Kieffer interviewed LaFontaine at his residence, La-Fontaine allegedly admitted that the voice mail was intended to be a threat that would “spark action.” However, this interview was not recorded or transcribed, and there was no signed statement. When cross-examining Kieffer at trial, LaFon-taine focused on this, asking the jury to question Kieffer’s credibility. In response to the cross-examination and knowing that LaFontaine would advocate for a position that conflicted with Kieffer’s testimony, the government pointed out that Kieffer’s testimony was the only direct evidence of the interview presented at trial, which was a true statement. The government then presented other evidence to establish the element of intent. And as expected, in closing argument, LaFontaine claimed that the voice mail was not a threat and that he did not know it would be viewed as such. Examining “the entire context of the remarks, including ‘the argument itself, and the larger context of the evidence introduced at trial,’ ” United States v. Martin, 777 F.3d 984, 996 (8th Cir.) (quoting United States v. Durant, 730 F.2d 1180, 1184 (8th Cir. 1984)), cert. denied, — U.S. -, 135 S.Ct. 2827, 192 L.Ed.2d 864 (2015), the jury would not have necessarily understood the government’s statement as an attempt to call attention to LaFon-taine’s failure to testify. See Herrin, 349 F.3d at 546. Rather, the record supports the government’s position that the statement was made to strengthen Kieffer’s credibility and highlight evidence of La-Fontaine’s intent.

Third, LaFontaine argues that the government committed prosecutorial misconduct by twice expressing an opinion on his guilt. At trial, the government stated, “Is that a friendly call? ... No, it’s not. It’s a threat. Everybody understands that.” LaFontaine argues that the government’s statement that “[everybody understands that” was an improper “personal expression of [LaFontaine’s] culpability.” United States v. Splain, 545 F.2d 1131, 1135 (8th Cir. 1976). This is a stretch. The government was merely submitting its theory. It did not opine on LaFontaine’s guilt or innocence. The comment was in reference to whether the communication contained a threat to injure, the element of the offense at issue in this case. See 18 U.S.C. § 875(c). As discussed above, La-Fontaine argued that he did not intend to threaten anyone and that he did not know that his voice mail would be viewed as a threat. The government’s statement was a clear attempt to show that LaFontaine must have known that his statement would be interpreted as a threat because such words are widely understood as threatening. It was an appeal to the jury’s common sense, which is not improper. See Six v. Delo, 94 F.3d 469, 477 (8th Cir. 1996). Similarly, contrary to LaFontaine’s argument, the government’s use of the phrase “I submit” was not improper vouching. “Although the use of [this] phrase[] has been often criticized (and discouraged) ..., it is not always improper.” United States v. Bentley, 561 F.3d 803, 811 (8th Cir. 2009). “It is only improper when it suggests that the government has special knowledge of evidence not presented to the jury, carries an implied guarantee of truthfulness, or expresses a personal opinion about credibility.” Id. at 812. Here, the record shows that the government used the phrase “to refer the jury to the government’s evidence and to summarize the government’s case against [LaFontaine],” which is not improper. Id. (quoting United States v. Lahey, 55 F.3d 1289, 1299 (7th Cir. 1995)).

Finally, LaFontaine argues that the government made personal attacks on defense counsel during rebuttal, specifically that the prosecutor called defense counsel ridiculous. However, the prosecutor never called defense counsel ridiculous. LaFontaine argued that if he had intended for the voice mail to be a threat, he would have done more to effectuate the alleged threat. The government called LaFontaine’s argument “complete speculation” and stated that the argument was “ridiculous.” The government then explained how the evidence, including the voice mail itself, disproved LaFontaine’s theory. Personal attacks on opposing counsel are improper. United States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005). However, as demonstrated here, “[t]he prosecutor may ... use ‘ “colorful pejoratives” and argue a personal interpretation of the evidence’ during closing.” United States v. Sigillito, 759 F.3d 913, 936 (8th Cir. 2014) (quoting United States v. White, 241 F.3d 1015, 1023 (8th Cir. 2001)). The government did not exceed the “considerable latitude” allowed when responding to LaFon-taine’s arguments. Collins, 642 F.3d at 658.

Because none of the actions LaFontaine complains of were improper, let alone clear error, LaFontaine’s prosecutorial misconduct claims fail the first prong of the test. See Jones, 795 F.3d at 799. Thus, we need not discuss whether the remarks prejudi-cially affected LaFontaine’s rights. The government committed no reversible pros-ecutorial misconduct during closing argument.

B. Rule 404(b) Evidence

The district court admitted evidence of LaFontaine’s 2013 conversation with the federal court employee, in which LaFon-taine’s comments were perceived as threatening. The court allowed the evidence under Federal Rule of Evidence 404(b) to show LaFontaine’s intent and lack of mistake. LaFontaine argues that this was in error because the evidence was irrelevant and highly prejudicial. We disagree.

“A district ■ court’s evidentiary rulings are reviewed for an abuse of discretion and are reversed ‘only when an improper evidentiary ruling affects the substantial rights of the defendant or when we believe that the error has had more than a slight influence on the verdict.’ ” United States v. Contreras, 816 F.3d 502, 511 (8th Cir. 2016) (quoting United States v. Elbert, 561 F.3d 771, 775 (8th Cir. 2009)). Under Rule 404(b),

[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

This rule is “one of inclusion, such that evidence offered for permissible purposes is presumed admissible absent a contrary determination.” Contreras, 816 F.3d at 511 (quoting United States v. Williams, 796 F.3d 951, 958 (8th Cir. 2015), cert. denied, — U.S.-, 136 S.Ct. 1450, 194 L.Ed.2d 556 (2016)). A four-part test is used to determine whether a district court abused its discretion by allowing Rule 404(b) evidence. Id. The evidence is properly admitted if “(1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4) its potential prejudice does not substantially outweigh its probative value.” Id. (quoting Williams, 796 F.3d at 959).

First, the evidence of the 2013 incident was relevant to the key issue in the case — whether LaFontaine intended to send a threatening communication or knew that the voice mail would be viewed as threatening. Second, like the instant offense, the prior incident involved a potentially threatening statement to a government official because of LaFontaine’s frustration with his treatment by a government official. And, the prior incident occurred in October 2013, less than two years before the current incident, which is not overly remote. Third, the Deputy United States Marshal who investigated the incident and interviewed LaFontaine testified at trial and provided sufficient evidence of the incident. Lastly, LaFon-taine was not prejudiced by the introduction of this evidence. As requested, La-Fontaine was allowed to present evidence of the content of the communication, and the court gave a limiting instruction. Moreover, the government did not address the 2013 incident in closing argument. Thus, the district court did not abuse its discretion by admitting this evidence.

C. GPS Monitoring

LaFontaine also appeals the district court’s imposition of GPS monitoring as a condition of supervised release. “We review a district court’s imposition of special conditions of supervised release for [an] abuse of discretion.” United States v. Hobbs, 710 F.3d 850, 852 (8th Cir. 2013). A district court has broad discretion to impose special conditions of supervised release so long as the condition is “reasonably related to certain sentencing factors set forth in 18 U.S.C. § 3553(a).” United States v. Forde, 664 F.3d 1219, 1222 (8th Cir. 2012). However, “[a] special condition may not deprive an individual of more ‘liberty than is reasonably necessary’ to accomplish these purposes.” Id. (quoting 18 U.S.C. § 3583(d)(2)). LaFontaine argues that this condition violated the tailoring requirement. We disagree.

LaFontaine received notice prior to sentencing that the court was considering placing him on electronic monitoring, which includes GPS monitoring. LaFon-taine then filed a sentencing memorandum specifically objecting to GPS monitoring. At sentencing the court heard argument on the conditions of supervised release. The court carefully considered all of the § 3553(a) factors, including LaFontaine’s history and character, as well as trial testimony and counsels’ written and oral arguments. LaFontaine had a prior conflict with a federal court employee, had multiple confrontations with other people, and threatened to take life to defend himself against injustice. Taking all of this into account, the district court determined that LaFontaine’s criminal behavior had escalated and that he was a safety risk. Moreover, although LaFontaine did not dispute that the judges of Eldora County were victims and agreed to a no-contact order, given his prior criminal history, there was no guarantee he would comply -with the order. GPS monitoring would provide law enforcement with advance notice if LaFon-taine sought to contact anyone he had previously threatened. Based on these facts, GPS monitoring was clearly reasonable and as narrowly tailored as possible. The district court did not abuse its discretion.

D. Alcohol Ban and Substance Abuse Treatment

In addition to GPS monitoring, the district court also imposed a total alcohol ban, which “prohibited [LaFontaine] from entering any establishment that holds itself out to the public to be a bar or tavern,” and ordered substance abuse treatment. LaFontaine argues that imposing these special conditions of supervised release without explanation was in error. We disagree.

As with GPS monitoring, the court advised LaFontaine prior to sentencing that it intended to require special conditions for supervised release, including an alcohol ban and substance abuse treatment. Unlike GPS monitoring, however, LaFontaine failed to object to these conditions. In fact, at sentencing LaFontaine stated that he was “not objecting to — the substance abuse treatment, the mental health evaluation, the prohibition of alcohol consumption, the no-contact orders, and the search provisions.” Thus, although we would normally review for plain error because LaFontaine failed to object to the conditions, United States v. Simons, 614 F.3d 475, 478 (8th Cir. 2010), because La-Fontaine “knowingly and voluntarily waive[d these] right[s], any error is unre-viewable on appeal,” United States v. Campbell, 764 F.3d 874, 878 (8th Cir. 2014). The district court advised LaFon-taine of its plan of action, and LaFontaine agreed to it. He “invited [any] error,” id. (quoting Matthew v. Unum Life Ins. Co. of Am., 639 F.3d 857, 868 (8th Cir. 2011)), and he “cannot [now] complain that the district court gave him exactly what his lawyer asked,” United States v. Thompson, 289 F.3d 524, 526 (8th Cir. 2002). LaFontaine waived his right to appeal these conditions of supervised release.

III. CONCLUSION

The judgment of the district court is affirmed.

      . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.


source: Caselaw Access Project

author: GRUENDER, Circuit Judge. SMITH, Circuit Judge,

license: Public Domain

text:
    Edward HUYER; Connie Huyer; Carlos Castro; Hazel P. Navas, Plaintiffs-Appellees Wells Fargo & Company; Wells Fargo Bank, N.A., Defendants-Appellees v. Rhadiante VAN DE VOORDE, Movant-Appellant
    No. 16-1694
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 10, 2017
    Filed: February 8, 2017

      See also 2017 WL 461096.
    Counsel who represented the appellant was Marc Harding of Des Moines, IA.
    Counsel who represented the appellees, Wells Fargo & Company and Wells Fargo Bank, N.A., were Jesse Linebaugh of Des Moines, IA, Jan T. Chilton and Mark D. Lonergan, of San Francisco, CA.
    Counsel who represented the appellees, Edward and Connie Huyer, Carlos Castro, and Hazel Navas, were Deborah Clark-Weintraub and Michael R. Reese, of New York, NY.
    Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.
   GRUENDER, Circuit Judge.

Rhadiante Van de Voorde appeals the district court’s order approving a class action settlement that requires one subgroup of class members to submit proofs of claim before receiving payment. Because Van de Voorde is not a member of this subgroup and suffers no injury from this requirement, we dismiss the appeal for lack of standing.

I.

In 2008, plaintiffs filed this class action against Wells Fargo & Co. and Wells Fargo Bank, N.A. (‘Wells Fargo”). The plaintiffs’ claims related to Wells Fargo’s practice of automatically ordering and charging fees for property inspections when customers fell behind on their mortgage payments. In 2015, the parties participated in mediation and reached a settlement agreement.

The settlement agreement provides that Wells Fargo will pay $25,750,000 in full settlement of all class claims. The agreement divides the class members into three subgroups: (1) members with active loans (“active”); (2) members whose loans are paid in full (“paid-in-full”); (3) members whose loans ended in a foreclosure sale, short sale, deed in lieu of foreclosure, or charge-off (“post-sale”). Active and paid-in-full class members automatically will receive a cash award from the settlement fund without having to submit a claim. In contrast, post-sale class members must submit a proof of claim in order to obtain a cash award. All class members were allowed to opt-out of the lawsuit.

The district court preliminarily approved the settlement agreement, and more than 2.7 million notices were sent to class members. Van de Voorde filed a written objection to the agreement. She argued that the named plaintiffs did not adequately represent the class because none of them belonged to the post-sale subgroup and that the resulting agreement was unfair to post-sale class members because they must submit proofs of claim in order to receive an award. To prove that she was a class member, Van de Voorde attached a copy of the class notice she received. The class notice indicates that Van de Voorde is an active or paid-in-full class member.

After holding a fairness hearing, the district court entered an order granting final class certification and final approval of the settlement. The court addressed Van de Voorde’s objection by explaining that “there are valid reasons for requiring post-sale class members to provide actual proof of their claim.” Huyer v. Wells Fargo & Co., 314 F.R.D. 621, 627 (S.D. Iowa 2016). The court further noted that the named class representatives adequately represented the class because “the class representatives seek the same type of recovery as the rest of the class members, they are represented by qualified counsel and ... [they] reached a favorable settlement.” Id. at 625. Although Van de Voorde did not formally move to intervene in the case, she now appeals this order and reasserts her previous objection.

II.

Wells Fargo argues that Van de Voorde lacks standing to appeal because, as an active or paid-in-full member, she is not aggrieved by the aspects of the settlement that she is challenging. “If a litigant lacks Article III standing to bring his claim, then we have no subject matter jurisdiction over the suit.” Iowa League of Cities v. EPA, 711 F.3d 844, 869 (8th Cir. 2013). “The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997).

Van de Voorde argues that she has standing to appeal the final approval of the class action settlement as a result of the Supreme Court’s decision in Devlin v. Scardelletti, 536 U.S. 1, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002). Van de Voorde misunderstands Devlin. In Devlin, the Court stated that “class members [must] be allowed to appeal the approval of a settlement when they have objected at the fairness hearing.” Id. at 10, 122 S.Ct. 2005. Van de Voorde apparently interprets this statement to mean that any class member who objected at the fairness hearing automatically obtains Article III standing to appeal the settlement. However, the Court expressly noted that the issue in Devlin did “not implicate the jurisdiction of the courts under Article III of the Constitution.” Id. at 6, 122 S.Ct. 2005. Instead, Devlin addressed only the issue of whether an unnamed class member who did not formally intervene in the action “should be considered a ‘party’ for the purposes of appealing the approval of the settlement,” in light of the general rule that “only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.” Id. at 7, 122 S.Ct. 2005 (quotation omitted). Thus, Devlin does not stand for the proposition that the act of objecting to approval of a settlement automatically confers Article III standing upon an unnamed class member. Rather, it held only that failing to intervene in a class action does not by itself prevent an unnamed class member from appealing the settlement. Id. at 14, 122 S.Ct. 2005.

And so, regardless of Devlin, Van de Voorde still must show that she satisfies the standing requirements of Article III. See Delorme v. United States, 354 F.3d 810, 815 (8th Cir. 2004) (“A party invoking federal jurisdiction must establish that he has met the requirements of both constitutional and prudential standing.” (citation omitted)). “To show standing under Article III of the U.S. Constitution, a plaintiff must demonstrate (1) injury in fact, (2) a causal connection between that injury and the challenged conduct, and (3) the likelihood that a favorable decision by the court will redress the alleged injury.” Iowa League of Cities, 711 F.3d at 869 (quotation omitted). An “injury in fact” is “an invasion of a legally protected interest” which must be “concrete and particularized” and “actual or imminent.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Here, Van de Voorde fails to demonstrate that she has suffered an injury in fact. Van de Voorde challenges only the treatment of the post-sale class members, arguing that they were not adequately represented and that the active and paid-in-full members will benefit at the expense of the post-sale members. Yet Van de Voorde is an active or paid-in-full class member. She would not benefit from the changes she seeks. In fact, if the settlement agreement required Wells Fargo to pay all class members without requiring them to submit proofs of claim, Van de Voorde likely would receive less money as a result of more post-sale class members receiving reimbursement. Consequently, the requirement for post-sale class members to submit proofs of claim does not injure her.

Van de Voorde responds that she has suffered an injury because she “does not want to be overcompensated at the expense of others being undercompensated.” However, we do not believe that this “abstract psychic harm” constitutes an injury in fact. See MainStreet Org. of Realtors v. Calumet City, Ill., 505 F.3d 742, 745 (7th Cir. 2007) (providing the example that “[t]here is a sense in which I am injured when I become upset by reading about the damage caused that fine old vineyard in Burgundy by a band of marauding teetotalers, yet that injury would not be an ‘injury’ that conferred standing to sue under Article III”). Indeed, several of our sister circuits have held that class members lack standing to appeal aspects of a class action settlement that do not adversely affect their own interests. See Hill v. State St. Corp., 794 F.3d 227, 231 (1st Cir. 2015) (holding that objectors lacked standing to challenge attorneys’ fees because “no decrease in the portion of the $60 million settlement amount that is paid to counsel will in any way benefit objectors”); Silverman v. Motorola Solutions, Inc., 739 F.3d 956, 957 (7th Cir. 2013) (holding that an objector who did not file a claim “laek[ed] any interest in the amount of fees, since he would not receive a penny from the fund even if counsel’s take should be reduced to zero”); Knisley v. Network Assocs., Inc., 312 F.3d 1123, 1126 (9th Cir. 2002) (holding that an objector lacks standing if modifying a fee award does not “actually benefit” the objector). We agree with these circuits. Because the aspects of the settlement regarding the post-sale subgroup do not adversely affect Van de Voorde’s interests, she lacks standing to appeal those aspects.

III.

For the foregoing reasons, we dismiss the appeal for lack of standing.

SMITH, Circuit Judge,

concurring.

I agree with the court’s judgment. I write separately to express my divergent path to that result. To me, the issue is not whether Van de Voorde “obtained” or was “conferred” Article III standing by objecting to the class settlement. She had Article III standing when, as a class member, she sued Wells Fargo. “As a member of the [settlement] class, petitioner has an interest in the settlement that creates a ‘case or controversy’ sufficient to satisfy the constitutional requirements of injury, causation, and redressability.” Devlin, 536 U.S. at 6-7, 122 S.Ct. 2005 (citing Lujan, 504 U.S. 555, 112 S.Ct. 2130). The issue, rather, appears to be one of prudential standing.

Settlement objectors must “meet the requirements for constitutional and prudential standing established by the Supreme Court in Lujan.” Delorme, 354 F.3d at 816. Prudential standing encompasses several concerns, including “[t]he general prohibition on a litigant’s raising another person’s legal rights.” Devlin, 536 U.S. at 7, 122 S.Ct. 2005 (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). As the court notes, Van de Voorde will not benefit from the objection she makes. She essentially seeks “to enforce someone else’s legal rights.” MainStreet Org. of Realtors, 505 F.3d at 746. Consequently, Van de Voorde lacks prudential standing rather than constitutional standing. The result, however, is the same.

I concur.

      . The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa.

      . Wells Fargo has provided a copy of this notice in its motion to supplement the record, which we grant.

      . In fact, we have previously expressed doubt as to whether this holding applies to an opt-out class action such as this one. See In re Gen. Am. Life Ins. Co. Sales Practice Litig., 302 F.3d 799, 800 (8th Cir. 2002) ("Because the Court relied upon the mandatory character of the class action, we question whether Devlin s holding applies to opt-out class actions certified under Rule 23(b)(3).”). But see Nat’l Ass’n of Chain Drug Stores v. New England Carpenters Health Benefits Fund, 582 F.3d 30, 39-40 (1st Cir. 2009) ("[T]he weight of authority holds that Devlin applies to all class actions.”). If Devlins holding does not apply here, then Van de Voorde would be barred from bringing this appeal based on her failure to intervene. However, we need not decide this issue because neither party has raised it, and thus it has been waived. See Eagle Tech. v. Expander Americas, Inc., 783 F.3d 1131, 1138 n.2 (8th Cir. 2015).


author: SMITH, Circuit Judge.

text:
    Elliot KAPLAN; Jeanne Kaplan, Plaintiffs-Appellants v. MAYO CLINIC; Mayo Foundation; Mayo Foundation for Medical Education and Research; Mayo Rochester, Inc.; Mayo Clinic Rochester, Inc.; Lawrence J. Burgart, Defendants-Appellees
    No. 15-2855
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 18, 2016
    Filed: February 13, 2017
    Rehearing and Rehearing En Banc Denied March 23, 2017

      James F.B. Daniels, McDowell & Rice, Kansas City, MO, for Plaintiffs-Appellants.
    Andrew B. Brantingham, William R. Stoeri, Dorsey & Whitney, Minneapolis, MN, Joshua B. Murphy, Mayo Clinic, Rochester, MN, for Defendants-Appellees.
    Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
   SMITH, Circuit Judge.

Elliot and Jeanne Kaplan sued Dr. David Nagomey, Dr. Lawrence Burgart, and Mayo Clinic and its affiliates (“Mayo”) for medical malpractice, breach of contract, lack of informed consent, and loss of consortium following a surgical procedure performed on Elliot after a misdiagnosis. The district court dismissed all claims against Dr. Nagorney, the surgeon who performed the medical procedure, because the Kaplans failed to produce expert testimony by the scheduled deadline. The case proceeded to trial against Mayo and Dr. Burgart on the breach-of-contract and malpractice claims. At the close of the plaintiffs’ case-in-chief, the district court granted Mayo’s motion for judgment as a matter of law on the breach-of-contract claim. Following trial, the jury returned a verdict in favor of the defendants on the malpractice claim.

On appeal, we upheld the jury verdict but vacated the judgment in favor of Mayo on the breach-of-contract claim. This court held that the district court erred by requiring expert testimony to establish a contract breach and remanded the claim to trial. Kaplan v. Mayo Clinic (Kaplan I), 653 F.3d 720, 729 (8th Cir. 2011) (“The plaintiffs therefore offered sufficient evidence in their case-in-chief to support a breach-of-contract claim against Mayo without offering the testimony of an expert.”). After a four-day bench trial, the district court entered judgment in favor of Mayo on the breach-of-contract claim. The Kaplans again appeal, and we affirm.

I. Background

Elliot Kaplan was hospitalized in Kansas City, Missouri, for intense abdominal pain. The hospital staff performed a computerized tomography (CT) scan and found a three-to-four centimeter mass on his pancreas. After a needle biopsy, hospital doctors diagnosed Elliot with pancreatic cancer. The hospital referred him to Dr. Nagorney at the Mayo Clinic in Rochester, Minnesota for surgery.

Before heading to the Mayo Clinic, Elliot’s condition began improving. He became skeptical of his diagnosis. His father, a cardiologist, sent a letter to Dr. Nagorney expressing his concerns about whether Elliot had been properly diagnosed. In response, Dr. Nagorney had .two pathologists at the Mayo Clinic perform independent analyses of Elliot’s biopsy. Both pathologists confirmed the cancer diagnosis.

When the Kaplans met with Dr. Nagor-ney, he explained to the couple the need for immediate surgical intervention. Dr. Nagorney recommended the Whipple procedure, an invasive surgery that typically includes the removal of the wide part of the pancreas, the anterior intestine, the gallbladder, and part of the stomach. In explaining the procedure, Dr. Nagorney explained that during the surgery he would be testing the tissue surrounding the pancreas for cancerous cells to ensure complete removal. Elliot, still unconvinced of his diagnosis, wanted more proof. He testified that he asked Dr. Nagorney to do an additional biopsy of his pancreas during the procedure to ensure that he had cancer. Dr. Nagorney denied that Elliot made this request.

Dr. Nagorney successfully performed the Whipple procedure without doing a biopsy of the pancreas during the procedure as he had allegedly promised. When pathologists tested the removed tissue, they discovered that the tumor in Elliot’s pancreas was benign. Elliot suffered not from cancer, but chronic pancreatitis. His initial biopsy resulted in a false positive. Since having the Whipple procedure, Elliot continues to suffer negative health complications that affect his daily life.

On remand from this court, the district court considered whether Elliot and Dr. Nagorney entered into a contract under Minnesota law to perform a biopsy of his pancreas during the Whipple procedure. Both parties consented to a bench trial, during which the district court heard evidence relating to the accuracy of needle biopsies. According to the evidence, the possibility of a false positive in a biopsy of pancreatic cancer is far less than one percent, but almost a ten-percent chance exists that such a biopsy would present a false negative. Dr. Nagorney testified that Elliot’s case presented the only false positive for pancreatic cancer in a needle biopsy that he had ever encountered in his decades-long career. Dr. Nagorney also testified that he trusted the accuracy of the biopsy and that doing another biopsy during surgery would have gone against his standard practices. Mayo presented expert testimony during trial demonstrating that a typical surgeon would not rely on the negative result of a biopsy during surgery because the likelihood of a false negative would far outweigh the likelihood of a false positive.

According to the evidence, physicians in general — and specifically Dr. Nagorney— avoid making promises like the alleged promise made to the Kaplans. The district court concluded that Dr. Nagorney’s explanation of the Whipple procedure likely confused the Kaplans, particularly Elliot. The court believed that Dr. Nagorney explained to them that he would be using biopsies during the surgery to ensure that the cancer had not spread to surrounding tissues. These results would determine how he would proceed with the Whipple procedure, not whether he would proceed in the first place. Finding Dr. Nagorney’s version of the conversation more credible in light of the circumstances, the district court concluded that Dr. Nagorney did not promise to do a biopsy of Elliot’s pancreas during the surgery and that no meeting of the minds occurred to form a contract. Because no contract existed, the breach-of-contract claim failed. The court therefore entered judgment in favor of Mayo.

II. Discussion

The Kaplans appeal the district court’s factual findings regarding contract formation and its ultimate judgment. “After a bench trial, this court reviews legal conclusions de novo and factual findings for clear error.” Urban Hotel Dev. Co. v. President Dev. Grp., L.C., 535 F.3d 874, 879 (8th Cir. 2008). In Minnesota, whether a contract has been formed is a question of fact. Watkins Inc. v. Chilkoot Distrib., Inc., 655 F.3d 802, 805 (8th Cir. 2011) (applying Minnesota law). Factual findings are only overturned if: (1) the findings are not supported by substantial evidence in the record, (2) the findings are based on an erroneous view of the law, or (3) the court is left with the definite and firm conviction that an error has been made. Tadlock v. Powell, 291 F.3d 541, 546 (8th Cir. 2002). ‘We give due regard to the opportunity of the district court to judge the credibility of the witnesses.” Id.

The Kaplans argue that the district court committed clear error in finding that no contract was formed. First, they argue that we settled the contract formation issue in Kaplan I, and the district court was “bound to honor” this mandate as law of the case. See United States v. Castellanos, 608 F.3d 1010, 1016 (8th Cir. 2010). This assertion misconstrues our previous holding. In Kaplan I, we held that the evidence in the record, viewed in the light most favorable to the plaintiffs, was sufficient for a reasonable jury to find contract formation. 653 F.3d at 728. Our holding, however, did not concomitantly preclude the district court, as fact finder, from determining otherwise after weighing the evidence. The district court did not violate the law of the case by determining that no contract was formed between the Kaplans and Mayo.

Second, the Kaplans argue that our mandate in Kaplan I required the district court to exclude all expert testimony on the contract-formation issue. The Kaplans contend that the district court erred by relying on expert testimony in finding that no contract was formed. They argue that without the aid of this expert testimony, the defendants failed to present sufficient evidence for a finding in their favor. We disagree. In Kaplan-1, we concluded that Minnesota law did not require the Kaplans to present expert affidavits to establish a prima facie case of medical malpractice. We did not, however, forbid the defendants’ use of expert testimony to establish a defense to the claim of a special contract in the performance of the operation. Our mandate did not prohibit the defendants’ use of expert testimony; therefore, the Kaplans’ sufficiency-of-the-evidence argument necessarily fails. The district court’s findings were supported by substantial evidence on the record.

Third, the Kaplans assert that our review of the factual findings of the district court should leave us with a firm conviction that the district court made an error. To support this argument, they allege minor inconsistencies in the record regarding what was said during their meeting with Dr. Nagorney. These inconsistencies all point to one real question: Did Dr. Nagorney promise to do a biopsy of Elliot’s pancreas during the Whipple procedure? The district court found that Dr. Nagorney did not make such a promise' and that Elliot misunderstood the description of the procedure. If the district court’s factual conclusions are plausible in light of the record, we will not reverse the decision even if we might disagree with its conclusion. Story v. Norwood, 659 F.3d 680, 685 (8th Cir. 2011).This factual finding does not provide us with the conviction that the district court committed clear error. “To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must ... strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” In re Nevel Props. Corp., 765 F.3d 846, 850 (8th Cir. 2014) (ellipsis in original) (quoting In re Papio Keno Club, Inc., 262 F.3d 725, 729 (8th Cir. 2001)).

Finding no clear error, we uphold the district court’s factual finding that the Kaplans and Dr. Nagorney did not form a contract. Without a contract, the questions of breach, damages, and all derivative claims become moot, and we decline to address them.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

      . The Honorable John R. Tunheim, Chief Judge, United States District Court for the District of Minnesota.


author: PER CURIAM.

text:
    Robert MCKEAGE; Janet McKeage, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees v. TMBC, LLC, Defendant-Appellant Tracker Marine Retail, LLC; Bass Pro Outdoor World, LLC, Defendants Robert McKeage; Janet McKeage, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants v. TMBC, LLC, Defendant-Appellee Tracker Marine Retail, LLC; Bass Pro Outdoor World, LLC, Defendants
    No. 15-3191, No. 15-3286
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 22, 2016
    Filed: February 13, 2017

      Counsel who presented argument on behalf of the appellant/cross-appellee was Ashley C. Parrish, of Washington, DC. The following attorney(s) also appeared on the brief; Jason C. Smith, of Springfield, MO., Michael W. Youtt, of Houston, TX., and David M. Barnes and Joshua N. Mitchell, of Washington, DC.
    Counsel who presented argument on behalf of the appellees/cross-appellants was Chandler Gregg, of Springfield, MO. The following attorney(s) also appeared on the brief; Steve B. Garner and Nick Smart, of Springfield, MO., and David L. Baylard, of Union, MO.
    Before WOLLMAN, BRIGHT, and KELLY, Circuit Judges.

      . The Honorable Myron H. Bright died on December 12, 2016. This opinion is being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E. It incorporates in large part the views expressed by Judge Bright during the pendency of this case.

   PER CURIAM.

Robert and Janet McKeage brought this class action lawsuit to challenge TMBC’s nationwide practice of charging a document fee when selling boats and trailers under form contracts governed by Missouri law. After approving class certification, the district court determined that TMBC prepared legal documents attendant to its sales and that charging a fee for those documents constituted unauthorized law business in violation of Mo. Rev. Stat. §§ 484.010 and 484.020. The district court granted summary judgment in favor of the class and awarded treble damages in the amount of $21,735,754. The district court also awarded attorneys’ fees to class counsel in the amount of $2,425,359, to be paid out of the common fund.

TMBC filed an appeal challenging the class certification, grant of summary judgment, and application of Missouri law to sales that occurred outside Missouri. The McKeages filed a cross appeal to enforce the fee-shifting provision in TMBC’s contract and to challenge the district court’s calculation of fees based on the amount of untrebled damages rather than the entire common fund. We affirm the district court on the main appeal. We reverse and remand for further proceedings on the cross appeal.

I

TMBC is a corporation headquartered in Springfield, Missouri. It sells boats and trailers through dealerships across the nation, most of which are located within Bass Pro Shops. On May 23, 2008, Robert and Janet McKeage purchased a boat from TMBC at the Tracker Boat Center located inside the Bass Pro Shop in St. Charles, Missouri. The purchase was memorialized in a standard form contract TMBC has used since 2007, which has a choice-of-law provision that states, in relevant part:

GOVERNING LAW. THE PARTIES AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF MISSOURI. The venue for any action or proceeding arising from this Agreement ... shall be in Greene County, Missouri. The prevailing party in any such action or proceeding shall be entitled to recover all litigation costs and expenses, including reasonable attorneys’ fees at all levels of litigation....

As part of the contract, TMBC charged the McKeages a $75 “document fee.” TMBC charged the fee to cover the cost of preparing and/or completing documents such as the form contract itself (sometimes referred to by the parties as the Order Acknowledgment and Agreement of Sale, or OAAS form); a bill of sale; a power of attorney form; and title, license, and registration documents.

Unhappy with their purchase, the McKeages contacted an attorney to help them rescind the sale. After reviewing the contract, counsel for the McKeages filed suit against TMBC in the Circuit Court for St. Charles County, Missouri. Among other things, the McKeages alleged that TMBC’s practice of charging a document fee constituted unauthorized law business in violation of Mo. Rev. Stat. §§ 484.010 and 484.020. Pursuant to the contract’s choice-of-law provision, venue was thereafter transferred to Greene County, Missouri.

The McKeages asked the state court to certify a nationwide class action. The state court certified a class, but limited it to customers whose purchases occurred in Missouri. The McKeages sought review from the Missouri Supreme Court, contending that the district court should have certified a nationwide class. The Missouri Supreme Court agreed, noting that TMBC chose Missouri law for the standardized form contracts it used nationwide. State ex rel. McKeage v. Cordonnier, 357 S.W.3d 597, 601 (Mo. banc 2012). Pursuant to the Missouri Supreme Court’s decision, the state trial court then certified a nationwide class.

In March 2012, TMBC removed the action to federal district court pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d)(8). After removal, TMBC brought a motion to decertify the class. Extensive litigation followed over whether a class action was appropriate, and eventually the district court denied the motion to decertify. After TMBC unsuccessfully petitioned this court for permission to appeal the denial of its motion to decertify the class, TMBC asked the district court to reconsider. Ultimately, the district court required the McKeages’ counsel to hire reviewers to manually inspect each of TMBC’s customer files in order to determine which contracts contained a Missouri choice-of-law provision, the inclusion of which formed the basis for the nationwide class. After the document review, the class was determined to consist of approximately 100,000 members.

The parties filed cross motions for summary judgment. As relevant to the issues now on appeal, TMBC argued that charging a document fee did not amount to unauthorized law business because TMBC’s employees did not exercise legal judgment when filling out documents for customers. TMBC also argued that some individuals had been improperly identified as customers who signed contracts governed by Missouri law. TMBC further argued that Missouri law should not be applied nationwide to customers who signed contracts with TMBC outside Missouri. Finally, TMBC argued that damages should not be calculated based on the entire document fee because portions of the fee went to services that did not constitute unauthorized law business.

The district court rejected TMBC’s arguments and granted the McKeages’ motion for summary judgment. The district court determined that the class members were properly identified, TMBC’s conduct in charging a document fee constituted unauthorized law business, Missouri law applied to transactions that occurred outside Missouri, and damages should be awarded based on the entire document fee. The district court then awarded treble damages pursuant to Mo. Rev. Stat. § 484.020. Based on the number of members in the class, the amount of damages was calculated at $21,735,754.

After the district court’s grant of summary judgment, the McKeages filed a motion for attorneys’ fees. Although the parties’ contract provided that “[t]he prevailing party in any [action or proceeding arising from the agreement] shall be entitled to recover ... reasonable attorneys’ fees at all levels of litigation,” the district court determined that “even in cases where a fee shifting provision may be applicable, attorney’s fees should come from the common fund.” The district court used the percentage-of-the-benefit method to calculate the fees and determined that thirty-three percent was appropriate in this case. Finally, the district court noted that the common fund included $7,349,574 in actual damages and $14,386,180 in statutory interest and treble damages. Based on a trilogy of Eighth Circuit cases involving treble damages under Section 4 of the Clayton Act—Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846 (8th Cir. 1952); International Travel Arrangers, Inc. v. Western Airlines, Inc., 623 F.2d 1255 (8th Cir. 1980); and Rose Confections, Inc. v. Ambrosia Chocolate Co., 816 F.2d 381 (8th Cir. 1987) — the district court concluded that calculating the fee award “from the actual damages [rather than treble damages] ... is preferable because it better reflects the policies behind a common fund recovery[.]” As a result, the district court awarded class counsel $2,425,359.42 in attorneys’ fees to be paid from the common fund, representing thirty-three percent of the untrebled damages.

TMBC timely appealed, contending: (1) the class should not have been certified because individualized proof was required to determine whether each customer’s contract contained a Missouri choice-of-law provision; (2) the district court misinterpreted Missouri case law regarding unauthorized law business in granting summary judgment to the class; and (3) the district court erred in applying Missouri law to conduct which occurred outside Missouri. The McKeages filed a timely cross appeal contending that the district court should have enforced the fee-shifting provision in TMBC’s standard form contract and that the fee award should have been based on the entire common fund rather than the untrebled damages.

II

A

TMBC first contends that the district court erred when it certified a class. We review the district court’s decision to certify a class for an abuse of discretion, but review de novo any issues of law involved in the class certification. In re St. Jude Med., Inc., 425 F.3d 1116, 1119 (8th Cir. 2005).

TMBC argues that the McKeages failed to satisfy the commonality and predominance requirements of Federal Rules of Civil Procedure 23(a)(2) and (b)(3). See Fed. R. Civ. P. 23(a)(2) (setting forth the prerequisite to class certification that there be “questions of law or fact common to the class”); Fed. R. Civ. P. 23(b)(3) (setting forth an additional requirement that there be “questions of law or fact common to class members [that] predominate over any questions affecting only individual members”). More specifically, TMBC argues individual issues predominated over common issues during the highly individualized process the district court used to identify class members.

TMBC’s complaints about an individualized inquiry relate to both the identification of the class members and the evidence necessary to establish liability once a class has been identified. TMBC’s argument thus implicates not only the commonality and predominance requirements, but also Rule 23’s implicit requirement that a class “‘must be adequately defined and clearly ascertainable.’” Sandusky Wellness Ctr. v. Medtox Sci., Inc., 821 F.3d 992, 996 (8th Cir. 2016) (quoting Ihrke v. N. States Power Co., 459 F.2d 566, 573 n.3 (8th Cir.), vacated as moot, 409 U.S. 815, 93 S.Ct. 66, 34 L.Ed.2d 72 (1972)). Though ascertainability is an implicit requirement that our court enforces through “a rigorous analysis of the Rule 23 requirements,” id. a dispute regarding the method for identifying class members calls for an independent discussion of whether a class is ascertainable.

A class may be ascertainable when its members may be identified by reference to objective criteria. See id. at 997-98. In Sandusky, the plaintiffs alleged Medtox Scientific violated the Telephone Consumer Protection Act (TCPA) by sending unsolicited faxes without the opt-out notice required by the TCPA. We identified the “fax logs showing the numbers that received each fax” as “objective criteria that make the recipient clearly ascertainable.” Id. at 997. We concluded that the district court abused its discretion by denying class certification, despite the fact that the logs may have identified some fax recipients “who don’t have rights under the [TCPA],” noting that those class members “just wouldn’t be entitled to share in the damages awarded to the class by a judgment or settlement.” Id. at 998 (alteration in original) (quoting Chapman v. Wagener Equities, Inc., 747 F.3d 489, 492 (7th Cir. 2014)).

Here, class members were identified by reviewing TMBC’s customer files according to objective criteria. The purpose of the review process was to identify for class membership the customers whose files contained an OAAS form or a terms- and-conditions sheet with a Missouri choice-of-law provision. The district court adopted an intensive file-by-file review process specifically for the purpose of excluding customers whose contracts did not contain the Missouri choice-of-law provision and who therefore did not have rights under Missouri law. Indeed, our examination of the record indicates that review process worked, and that most customers who may have been subject to TMBC’s individual defenses were excluded from the class during the review process.

In addition to the class being clearly ascertainable, the commonality and predominance requirements of Rule 28(b) are satisfied here. The class identified as a result of the intensive file-by-file review included TMBC customers that entered into a contract identical or substantially similar to the one entered into by the McKeages. In addition, evidence gleaned during discovery showed that it was TMBC’s corporate policy to require all customers to sign the standard form contract governed by Missouri law. Thus, this case presented a “classic case for treatment as a class action.” Steinberg v. Nationwide Mut. Ins. Co., 224 F.R.D. 67, 74 (E.D.N.Y. 2004) (internal quotation omitted); see also Flanagan v. Allstate Ins. Co., 242 F.R.D. 421, 428 (N.D. Ill. 2007) (“Claims arising out of form contracts are particularly appropriate for class action treatment.”); Egge v. Healthspan Servs. Co., 208 F.R.D. 265, 269 (D. Minn. 2002) (“Claims arising from interpretations of a form contract appear to present the classic case for treatment as a class action.”) (alteration omitted) (quoting Kleiner v. First Nat’l Bank of Atlanta, 97 F.R.D. 683, 692 (N.D. Ga. 1983)). As to the class members eventually identified, the common and predominant issue was whether TMBC’s practice of charging a document fee in the standardized contract violated Missouri’s prohibition on unauthorized law business. Although the documents TMBC prepared for individual customers varied at times, the district court correctly determined that the variety of services and the differences between contracts were not distinct enough to decertify the case as a class action. See Janson v. LegalZoom.com, Inc., 271 F.R.D. 506, 510, 512 (W.D. Mo. 2010) (involving a claim of unauthorized law business and finding that Rule 23’s commonality and predominance requirements were met even when the defendant offered more than 200 separate legal forms, noting that variation in forms did not negate the overarching common legal question of “whether LegalZoom’s preparation of legal documents violates Missouri law”).

We conclude that the district court did not abuse its discretion in finding that the class as ultimately defined met the requirements of Rule 23 and certifying the case as a class action.

B

TMBC next contends that the district court erred in. granting summary judgment to the class. We review the district court’s grant of summary judgment de novo. Green v. Dillard’s, Inc., 483 F.3d 533, 538 (8th Cir. 2007).

TMBC contends that the district court misconstrued Missouri law when it concluded that TMBC’s practice of charging a document fee constituted unauthorized law business under Mo. Rev. Stat. §§ 484.020 and 484.010. TMBC contends that the district court misunderstood that “an activity must first be the practice of law before charging for its performance by a non-lawyer can be unauthorized.”

Under Missouri law, “charging a separate fee for the completion of legal forms by non-lawyers constitutes the unauthorized practice of law business.” Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697, 702 (Mo. banc 2008). Determining whether a particular form is legal in nature requires the court to “balance the protection of the public against a desire to avoid unnecessary inconvenience and expense.” Hargis v. JLB Corp., 357 S.W.3d 574, 584 (Mo. banc 2011) (quoting In re First Escrow, Inc., 840 S.W.2d 839, 843 (Mo. banc 1992)). A key factor in this inquiry is the legal judgment or discretion required to prepare the form. See Hargis, 357 S.W.3d at 584; In re First Escrow, Inc., 840 S.W.2d at 843; Hulse v. Criger, 363 Mo. 26, 247 S.W.2d 855, 861 (1952). However, once it has been determined that a particular document is legal in nature, the act of charging a fee for the preparation or completion of that document constitutes unauthorized law business, even when a non-lawyer does not exercise any legal judgment in completing the form.

For example, in Eisel v. Midwest Bank-Centre, 230 S.W.3d 335 (Mo. banc 2007), bank employees prepared a number of pre-printed documents when processing mortgage loans. The pre-printed forms included, among other things, a deed of trust and a promissory note. Id. at 337 n.3. The Missouri Supreme Court had previously determined that deeds of trust and promissory notes were legal documents because their preparation requires the exercise of legal judgment or discretion. See id. (citing In re First Escrow, 840 S.W.2d at 846). As a result, the court found it unnecessary to ' consider whether bank employees’ completing the pre-printed forms required the exercise of legal judgment or discretion. Rather, the court held the bank’s practice of charging a fee for completing the pre-printed forms was unauthorized law business prohibited by § 484.020, explaining that “charging of a separate additional charge tends to place emphasis on conveyancing and legal drafting as a business rather than on the business of being a [banker].” Id. at 339.

The forms for which TMBC charged a fee included forms Missouri has determined to be legal documents — namely, power of attorney forms — as well as forms that have yet to be analyzed under Missouri law. See id. (companies and their non-lawyer agents prohibited “from drawing, preparing, or assisting in the preparation of trust workbooks, trusts, wills, and powers of attorney for valuable consideration”) (citing In re Mid-Am. Living Trust Assocs., Inc., 927 S.W.2d 855, 871 (Mo. banc 1996)). As a consequence, TMBC’s practice of charging a separate fee for the completion of those forms was unauthorized law business under § 484.020 whether or not the act of completing the forms required the exercise of legal judgment or discretion. See id.

Relying on Bray v. Brooks, 41 S.W.3d 7 (Mo. Ct. App. 2001), TMBC further contends the district court misconstrued Missouri law when it calculated damages based upon the entire document fee, because some of the forms for which it charged a document fee were not legal documents. TMBC contends that the district court was required to parse the document fee to determine what portion should be allotted to the preparation of legal documents and to calculate damages only upon that amount. However, Bray does not mandate such a procedure. Bray involved a real estate broker who charged a single fee for all of his services, which included the unauthorized drafting of a number of legal documents as well as legitimate broker services, without making a defined separate charge for document preparation. In deciding whether damages for the violation of § 484.020 should be based upon the broker’s entire fee, the Missouri Court of Appeals said a distinction must be made between the legitimate and unauthorized services the broker provided. Id at 14.

As the district court correctly determined, the facts of Bray.differ from those involved here. TMBC did not charge the McKeages a single contract price for the sale of the boat. Rather, the unauthorized fee for document preparation was charged separately from the legitimate portions of the contract. Thus, there was no need to address the dilemma the court faced in Bray. In situations where the unauthorized charge is separate from the legitimate portions of the parties’ transaction, damages may be based upon the entire unauthorized fee, even if some of the documents are not legal in nature. See Eisel, 230 S.W.3d at 337 n.3.

Finally, TMBC contends it had no notice that the choice-of-law clause in its contract would subject it to treble damages. We disagree. See Carpenter, 250 S.W.3d at 702 (“Countrywide had clear and fair notice, both by statute and case law, that its activities constituted the unauthorized practice of law business and that this conduct would subject it to treble the amount of fees paid in exchange for those services.”); Janson v. LegalZoom, Inc., 802 F.Supp.2d 1053, 1067 (W.D. Mo. 2011) (finding application of Missouri’s unauthorized practice of law statute did not violate the defendant’s constitutional due process rights where Missouri “cases such as Hulse, First Escrow, Mid-America, and Eisel put [the defendant] on notice that it could not charge a fee for the preparation of legal documents”).

We conclude that the district court did not err in granting the class members’ motion for summary judgment or in calculating damages based upon the entire document fee.

C

Finally, TMBC contends the district court erred in applying Missouri law to sales that occurred outside Missouri. This issue involves the interpretation and application of the choice-of-law provision in TMBC’s standard form contract, and thus is an issue of law reviewed de novo. See Schwan’s Sales Enters., Inc. v. SIG Pack, Inc., 476 F.3d 594, 595-96 (8th Cir. 2007).

TMBC characterizes this issue as an unconstitutional extra-territorial application of Missouri penal law, arguing that “[t]o allow Missouri to control the regulation of law licenses and decide what constitutes the practice of law in other states is unprecedented” and violative of the Commerce and Full Faith and Credit Clauses of the United States Constitution. In making this argument, TMBC relies on the fact that § 484.020(2) makes it a misdemeanor to engage in unauthorized law business and that the Missouri attorney-general has the right to sue for treble damages in the event the parties granted a private cause of action under the statute “neglect and fail to sue for or recover such treble amount.” Mo. Rev. Stat. § 484.020(2).

The fundamental flaw in TMBC’s argu-' ment is that Missouri is not a party to this action. Missouri has not charged TMBC with any crimes, nor has the Missouri attorney general pursued an action against TMBC for treble damages arising out of its contracts with class members. Missouri makes no attempt to enforce its law extra-territorially. Thus, whether Missouri can control the regulation of law licenses extra-territorially and whether the Missouri attorney general can enforce § 484.020 extra-territorially are issues not before us.

Instead, the question here is whether a corporation headquartered in Missouri can choose that Missouri law govern its conduct in standard form contracts it used nationwide. There is nothing inherently unconstitutional about enforcing a corporation’s choice to have its contractual duties governed by the law of a particular state. On the contrary, “[t]he general rule is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.” Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356, 51 S.Ct. 476, 75 L.Ed. 1112 (1931); State ex rel. McKeage, 357 S.W.3d at 600 (“Generally, parties may choose the state whose law will govern the interpretation of their contractual rights and duties. A valid choice of law provision in a contract binds the parties.” (internal citation omitted)). Aside from its argument that application of § 484.020 in this case constitutes the unconstitutional extra-territorial application of Missouri penal law, TMBC does not otherwise challenge the validity or enforceability of the choice-of-law clause. We thus conclude that the district court did not err in applying Missouri law to sales that occurred outside Missouri.

D

In their cross appeal, the McKe-ages challenge the district court’s award of attorneys’ fees. We review the district court’s award of attorneys’ fees for an abuse of discretion, but review de novo any rulings of law related to the award of fees. Roemmich v. Eagle Eye Dev., LLC, 526 F.3d 343, 354-55 (8th Cir. 2008).

We first address the McKeag-es’ contention that the district court erred when it held that the attorneys’ fees should be paid from the common fund rather than paid by TMBC pursuant to the contractual fee-shifting provision. In concluding that attorneys’ fees should be paid by the class members out of the common fund even though there was a fee-shifting provision in TMBC’s contract, the district court cited three cases: Enter-gy Arkansas, Inc. v. Nebraska, 226 F.Supp.2d 1174 (D. Neb. 2002); In re Workers’ Compensation Insurance Antitrust Litigation, 771 F.Supp. 284 (D. Minn. 1991); and In re Chrysler Motors Corp. Overnight Evaluation Program Litigation, 736 F.Supp. 1007 (E.D. Mo. 1990). However, none of these cases involved a common fund in a class action in which a contractual fee-shifting provision played a part. See Entergy Ark., 226 F.Supp.2d at 1182 (noting the common fund doctrine exists “independently of the various fee-shifting statutes,” and not addressing whether the presence of a common fund necessarily precludes the enforcement of a contractual fee-shifting provision); In re Workers’ Comp., 771 F.Supp. at 286 (honoring class counsel’s request that fees be paid out of common fund rather than under applicable statutory fee-shifting provisions because “the settlement agreements contain an explicit term creating a common fund”); In re Chrysler Motors Corp., 736 F.Supp. at 1012-13 (discussing other cases initiated pursuant to fee-shifting statutes in which common fund principles were applied to determine fees). These cases, while informative, are not dispositive.

The question here is whether, in a case in which both a common fund and a contractual fee-shifting provision exist, attorneys’ fees should be awarded from the common fund or paid under the contract’s terms. Our court has yet to address this question. In deciding this issue, we first note that the presence of a fee-shifting statute does not necessarily preclude awarding attorneys’ fees out of a common fund. See 5 William B. Rubenstein, New-berg on Class Actions § 15:61 (5th ed. 2016) (“[C]ounsel may in some cases be able to seek both statutory fee-shifting and common fund fee-spreading.”). Instead, the presence of a fee-shifting statute precludes a common fund award only when that result is required by the statutory scheme involved. See Alan Hirsch et ah, Fed. Judicial Ctr., Awarding Attorneys’ Fees and Managing Fee Litig., 78 & n.447 (3d ed. 2015) (“The Second, Third, and Seventh Circuits have held that, absent ... a showing of legislative intent [to preclude a common fund award], the fact that a fee-shifting statute applies to a particular case does not preclude recovery from a common fund.”) (citing Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1327 (2d Cir. 1990); Skelton v. Gen. Motors Corp., 860 F.2d 250, 255 (7th Cir. 1988); In re Fine Paper Antitrust Litig., 751 F.2d 562, 583 (3d Cir. 1984)); see also Haggart v. Woodley, 809 F.3d 1336, 1357 (Fed. Cir.), cert. denied, — U.S.-, 136 S.Ct. 2509, 195 L.Ed.2d 840 (2016) (holding that fee-shifting provision under section 304(c) of the Uniform Relocation Assistance and Real Property Acquisition Policies Act precluded a common fund award because the statutory scheme “expressly allows landowners to retain the full compensation of the value of their property by mandating the Government to assume the litigation expenses of counsel”). But when a particular statutory scheme does not manifest congressional intent to preclude equitable fee-shifting under the common fund doctrine, courts are afforded greater discretion in determining the appropriate source of attorneys’ fees. See Haggart, 809 F.3d at 1359 (‘We do not foreclose the application of the common fund doctrine in all instances in which a fee-shifting statute is present. Equity may sometimes deem it appropriate to give counsel a piece of either the final judgment or settlement agreement.”).

In cases involving contractual fee-shifting provisions, there is no relevant underlying congressional intent that might preclude a common fund award. Instead, the court must weigh the equitable principles underlying the creation of the common fund doctrine against the fee-shifting provision agreed upon by the parties. See Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980) (explaining that the common fund doctrine is grounded in equity).

There is a distinction between the amount a losing party may be required to pay under an agreed-upon contractual fee-shifting provision and the amount a class member should equitably be required to pay his or her own lawyer under the common fund doctrine. Cf. Gisbrecht v. Barnhart, 535 U.S. 789, 806, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002) (emphasizing that the lodestar method of awarding fees under a fee-shifting provision “was designed to govern imposition of fees on the losing party_[but] nothing prevents the attorney for the prevailing party from gaming additional fees, pursuant to contract, from his own client.” (citation omitted)); Venegas v. Mitchell, 495 U.S. 82, 90, 110 S.Ct. 1679, 109 L.Ed.2d 74 (1990) (explaining that the relevant statutory fee-shifting provision “controls what the losing defendant must pay, not what the prevailing plaintiff must pay his lawyer”). In Nilsen v. York County, the court discussed Vene-gas and Gisbrecht in the context of a class action common fund case and concluded that “[t]hese cases, read together, uncouple the fee analysis in determining an award against the losing defendant ... from the fee analysis for determining an award to the lawyer from the amount that he or she has recovered.” 400 F.Supp.2d 266, 272 (D. Me. 2005).

“The fact that a common fund has been created is not sufficient to establish a finding that the common fund doctrine must be applied when awarding attorney fees_” Haggart, 809 F.3d at 1356. The common fund doctrine is intended to ensure that class counsel receives a fee similar to what would have been received had a retainer agreement been in place with all class members, as well as to prevent “persons who obtain the benefit of a lawsuit without contributing to its cost” — e.g., passive class members — from being “unjustly enriched at the successful litigant’s expense.” Boeing Co., 444 U.S. at 478, 100 S.Ct. 745. Payment of attorneys’ fees under the fee-shifting provision accommodates both concerns underlying the common fund doctrine: First, lawyers are able to recoup reasonable compensation. Second, there is no risk that named plaintiffs alone will be required to pay the class’s lawyers, thereby unjustly enriching passive class members by providing them the benefit of a portion of the award without the burden of litigation costs. Furthermore, the McKeages’ coúnsel successfully obtained a judgment on behalf of the class against a defendant who freely entered into a contract containing a fee-shifting provision. Requiring the class to pay the entire attorneys’ fee award from the common fund in this case is inequitable because it nullifies the class’s contractual right, as the prevailing party, “to recover all litigation costs and expenses, including reasonable attorneys’ fees at all levels of litigation” from its opponent. Enforcement of the fee-shifting provision honors both the contract and the principles underlying the common fund doctrine.

However, should the district court determine that counsel for the class is entitled to additional fees from the common fund, apart from those reasonable expenses covered by the fee-shifting provision, it is not prohibited from awarding additional fees. See Nilsen, 400 F.Supp.2d at 272-73 (fee analysis for determining an award against the losing defendant is distinct from the fee analysis for determining an award to the lawyer from the amount that a plaintiff has recovered). We make no comment with respect to whether fees beyond those resulting from the contractual fee-shifting provision should be awarded in this case, and we leave that determination to the district court’s sound discretion. Should it determine that an additional award out of the common fund is justified in this case, the district court should look to “the fund as a whole,” including the trebled damages, Boeing Co., 444 U.S. at 478, 100 S.Ct. 745, but is free to award any portion of the fund that it deems appropriate.

Ill

For the reasons stated, we affirm on all issues raised in the primary appeal. We reverse and remand for further proceedings consistent with this opinion on the issues raised in the cross appeal.

      . TMBC, LLC's parent company is Tracker Marine Retail, LLC. Tracker Marine Retail, LLC’s parent company is Bass Pro Group, LLC.

      . As of 2008, TMBC operated seventy-three dealerships nationwide. Fifty-two of those dealerships were located within Bass Pro Shops, and twenty-one were freestanding dealerships.

      . Section 484.010 states in relevant part:
      The "law business” is hereby defined to be and is the advising or counseling for a valuable consideration of any person, firm, association, or corporation as to any secular law or the drawing or the procuring of or assisting in the drawing for a valuable consideration of any paper, document or instrument affecting or relating to secular rights....
      Section 484.020 states in relevant part:
      No person shall engage in the practice of law or do law business ... unless he shall have been duly licensed therefor and while his license therefor is in full force and effect.... Any person, association, partnership, limited liability company or corporation who shall violate the foregoing prohibition of this section ... shall be subject to be sued for treble the amount which shall have been paid him or it for any service rendered in violation hereof by the person, firm, association, partnership, limited liability company or corporation. ...

      . The district court denied summary judgment as to 2,293 individuals who were initially included in the class after finding there was a genuine issue of material fact as to whether the transactions of 68 of those individuals were governed by Missouri law, and whether 2,225 of those individuals whose transactions were governed by Missouri law had actually paid a document fee.

      . We reject TMBC’s contention, articulated in its reply brief, that the contractual fee-shifting provision does not apply because this suit is not an action or proceeding arising from its agreements. The $75 document fee was part of the contracts, this class action was brought to challenge the lawfulness of that part of the contracts — a determination that relates to the interpretation of the contract — and thus this class action arises from those agreements and triggers the fee-shifting provision. See Major v. McCallister, 302 S.W.3d 227, 231-32 (Mo. Ct. App. 2009) (“Generally speaking, whether a forum selection clause that by its terms applies to contract actions also reaches non-contract claims ‘depends on whether the resolution of the claims relates to interpretation of the contract.’ ”) (quoting Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 (9th Cir. 1988)).