Guenther v. BP Retr Accumulation

Case: 21-20617 Document: 00516500599 Page: 1 Date Filed: 10/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 7, 2022
No. 21-20617 Lyle W. Cayce
Clerk
Fredric A. Guenther; Walton Fujimoto, Les Owen
Plaintiffs—Appellees,
versus
BP Retirement Accumulation Plan; BP Corporation
North America, Incorporated,
Defendants—Appellees,
versus
Michael Press,
Movant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-995
Before King, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:
Appellees have been adversaries in a protracted class action for over
six years, based on disputed events occurring more than thirty years ago.
After almost five years of litigation, and on the eve of class certification,
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Appellant, who has separately been engaged in an action against Defendants-
Appellees, moved to intervene. Despite their differences, Appellees agreed
that this motion should be denied. The district court subsequently denied
Appellant’s motion, and this appeal followed. On appeal, Appellees continue
to jointly oppose Appellant’s intervention. For the reasons stated below, we
AFFIRM.
I.
In 1987, a subsidiary of British Petroleum, now known as BP
Corporation North America Inc. (“BP America,” a Defendant-Appellee in
this action), acquired Standard Oil of Ohio (“Sohio”). Prior to the
acquisition, Sohio employees were members of a Sohio sponsored defined
benefit retirement plan (the “Sohio Plan”), which calculated its pension
distributions using a formula based on an employee’s earnings history, tenure
of service, and age. Therefore, once employees contributed to the Sohio Plan,
Sohio bore the entirety of the investment risk as distribution amounts were
based on a predetermined formula that did not account for market
performance.
At the time of the acquisition, Sohio’s employees became employees
of BP America (the “Sohio Legacy Employees”). On January 1, 1988, BP
America converted the Sohio Plan, along with several other defined benefit
plans, into a new plan called the BP America Retirement Plan (the “ARP”).
Notably, the ARP was also a defined benefit plan that retained the formula
used by the Sohio Plan to calculate its members’ pension distributions. One
year later, however, BP America converted the ARP into the BP Retirement
Accumulation Plan (the “RAP,” the conversion from the ARP to the RAP as
the “Conversion,” and the date of the Conversion as the “Conversion
Date”), the other Defendant-Appellee in this action. Unlike its predecessor
plans, the RAP was a cash balance plan, which calculated distributions, in
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part, based on fluctuating interest rates. Thus, under the RAP, employees
bore some additional risk because distributions were now based, in part, on
market performance.
A. The Guenther Action
On April 13, 2016, Plaintiffs-Appellees, two Sohio Legacy Employees,
Fredric A. Guenther and Walton Fujimoto, 1 (the “Guenther Plaintiffs”) filed
a class action complaint against the RAP and BP America (collectively,
“BP”) in the United States District Court for the Southern District of Texas
alleging that BP violated numerous provisions of the Employee Retirement
Income Security Act (“ERISA”) by causing Sohio Legacy Employees to
forfeit benefits that they had already accrued and failing to properly disclose
this change in their benefits when BP initiated the Conversion (the “Guenther
Action”). Specifically, the Guenther Plaintiffs alleged that BP should have
credited the Sohio Legacy Employees’ new RAP opening account balances
with the value of their ARP ending account balances as of the Conversion
Date, January 1, 1989. But according to the Guenther Plaintiffs, BP instead
calculated the Sohio Legacy Employees’ ARP ending account balances as of
a date earlier than the Conversion Date. BP then calculated the present value
for those ARP ending account balances as of the Conversion Date using an
interest rate of eight percent, which the Guenther Plaintiffs claimed was
unreasonably high, and thus, perpetually undervalued the Sohio Legacy
Employees’ accrued benefits as reflected in their RAP account balances. 2
The complaint also alleged that BP misrepresented to Sohio Legacy
Employees that their benefits under the RAP would be “as good or better”
1
Plaintiff-Appellee Les Owen was eventually added as a third named plaintiff.
2
Additionally, the Guenther Plaintiffs alleged that BP retroactively dated the
opening account balances of the RAP for the Sohio Legacy Employees such that the
employees forfeited benefits that they had already accrued under the ARP.
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than those that they had received under the ARP. Accordingly, the Guenther
Plaintiffs sought reformation of the RAP so that those Sohio Legacy
Employees whose retirement benefits were negatively affected would be in as
good a financial position as they would have been had they remained
members of the ARP.
After the Guenther Plaintiffs amended their complaint (while
maintaining the core of their allegations, claims, and the relief they sought in
their original complaint), BP moved to dismiss. On March 13, 2019, the
district court granted BP’s motion in part, dismissing all but one count: the
count seeking reformation of the RAP; however, the court ordered the
Guenther Plaintiffs to replead that count “in a manner that specifically states
a recognized cause of action.” On April 5, 2019, the Guenther Plaintiffs filed
a second amended complaint with a single count claiming that BP breached
its fiduciary duties relating to the Conversion in violation of ERISA § 404(a).
The complaint seeks “all equitable relief to redress [BP’s] breach of fiduciary
duty, including reformation” under § 502(a)(3) of ERISA. Alternatively, the
Guenther Plaintiffs assert that they are entitled to the remedies of surcharge
or equitable estoppel as well as “all equitable relief to redress [BP’s] breach
of fiduciary duty.”
Following over a year of extensive discovery, the Guenther Plaintiffs
moved to certify their class under both Rules 23(b)(2) and (3) of the Federal
Rules of Civil Procedure; this motion was subsequently referred by the
district court to a magistrate judge. BP opposed the motion and moved for
summary judgment. On March 12, 2021, the magistrate judge issued a
recommendation that both a general class and subclass should be certified
under Rule 23(b)(2) but declined to make a recommendation as to either the
general class’s or subclass’s viability under Rule 23(b)(3). The magistrate
judge recommended that the general class should consist of:
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All persons under age 50 as of January 1, 1989 who were active
participants in the [RAP] as of January 1, 1989, and whose
retirement benefit under the [ARP] exceeds the retirement
benefit offered (or that will be offered) by the [RAP], as
amended on the benefit commencement date, and the
beneficiaries and estates of such persons and alternate payees
under a Qualified Domestic Relations Order.
He also recommended that the subclass should consist of all members of the
general class who “signed a release upon separation of employment.”
B. The Press Action
Meanwhile, on September 14, 2020, over four years after the Guenther
Plaintiffs filed their original complaint, Movant-Appellant Michael Press,
along with 276 other individuals (the “Press Plaintiffs”), filed a two-count
complaint in the United States District Court for the Northern District of
Ohio against BP America and its parent company BP p.l.c., the successor in
interest to British Petroleum (the “Press Action”). The Press Plaintiffs, all of
whom are Sohio Legacy Employees, similarly claimed that BP America had
breached its fiduciary duties regarding its disclosures concerning the
Conversion in violation of § 404(a). The Press Plaintiffs also sought equitable
relief under § 502(a)(3) through either reformation of the RAP, surcharge, or
equitable estoppel. In its second count, the complaint alleges that BP p.l.c.
“knowingly participated” in BP America’s alleged breach of fiduciary duty
and was consequently unjustly enriched. Accordingly, the Press Plaintiffs
sought “restitution and/or disgorgement of profits in the amount of [BP
p.l.c.’s] unjust enrichment.”
BP America subsequently moved to transfer the Press Action to the
Southern District of Texas or alternatively stay that suit pending the
resolution of the Guenther Action. On December 23, 2020, the district court
granted BP America’s motion and ordered that the Press Action be
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transferred to the Southern District of Texas under the first-to-file rule, 3
reasoning that the parties and claims in both cases were “nearly identical”
and noting the relatively advanced stage of the litigation in the Guenther
Action. The Press Action was then stayed upon its transfer to the Texas
district court pending resolution of the class certification motion in the
Guenther Action.
C. The Press Plaintiffs move to intervene
On March 26, 2021, after the magistrate judge had issued his
recommendation for class certification, the Press Plaintiffs moved to
intervene in the Guenther Action “for the purpose of objecting” to the
magistrate judge’s recommendation. In their motion, the Press Plaintiffs
contended that they were entitled to intervene as of right but that the court
should allow for permissive intervention if it found the former theory
unpersuasive. On March 31, 2021, the district court adopted the magistrate
judge’s recommendation in its entirety without addressing the Press
Plaintiffs’ pending motion. The Press Plaintiffs filed their reply brief on their
motion after the district court had adopted the magistrate judge’s
recommendation. Acknowledging this development, the Press Plaintiffs now
sought to intervene so that they could opt out of the newly certified class, or
alternatively, enter the Guenther Action as named plaintiffs.
3
See Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 603 (5th Cir. 1999)
(“Under the first-to-file rule, when related cases are pending before two federal courts, the
court in which the case was last filed may refuse to hear it if the issues raised by the cases
substantially overlap.”). The Ohio district court relied on a similar Sixth Circuit precedent
in invoking this rule. See Baatz v. Columbia Gas Transmission, LLC, 814 F.3d 785, 789 (6th
Cir. 2016) (“The first-to-file rule is a prudential doctrine that grows out of the need to
manage overlapping litigation across multiple districts. Simply stated, it provides that,
when actions involving nearly identical parties and issues have been filed in two different
district courts, the court in which the first suit was filed should generally proceed to
judgment.” (internal quotations omitted)).
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On December 7, 2021, the district court denied the Press Plaintiffs’
motion to intervene. The court first addressed the motion concerning
intervention as of right, which is adjudicated using a four-factor test.
Assuming that the first three factors of this test had been met, the court
devoted its analysis to the fourth factor: whether the Press Plaintiffs’ interests
were adequately represented by the existing parties. The court determined
that both the Guenther and Press Plaintiffs had the same ultimate objective—
“to remedy a pension shortfall allegedly caused by breaches of fiduciary duty
and violations of [ERISA]”—and thus, there was a presumption of adequate
representation. Accordingly, the court denied the motion to the extent the
Press Plaintiffs sought to intervene as of right. Turning next to the request for
permissive intervention, the court concluded that allowing the Press Plaintiffs
to intervene would unduly delay the resolution of the Guenther Action and
that the action’s certified class would adequately represent their interests.
Consequently, the court denied the remaining portion of the motion as well.
On appeal, the Press Plaintiffs 4 only challenge the district court’s
decision to deny their intervention as of right. The Press Plaintiffs contend
that the certified class in the Guenther Action inadequately represents their
interests, and therefore, they have a right to intervene in this case.
II.
A movant is entitled to intervene as of right if she “claims an interest
relating to the property or transaction that is the subject of the action, and is
so situated that disposing of the action may as a practical matter impair or
impede the movant’s ability to protect its interest, unless existing parties
4
The Press Plaintiffs addressed the court below collectively, but the case caption
states that Michael Press is the only appellant. We refer to Appellant, however, as the Press
Plaintiffs in recognition that the underlying motion belonged to the Press Plaintiffs, and
Appellant appears to be making arguments on their behalf.
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adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). This circuit
utilizes a four-factor test to determine if Rule 24(a)(2)’s requirements have
been met:
(1) the application for intervention must be timely; (2) the
applicant must have an interest relating to the property or
transaction which is the subject of the action; (3) the applicant
must be so situated that the disposition of the action may, as a
practical matter, impair or impede his ability to protect that
interest; [and] (4) the applicant’s interest must be inadequately
represented by the existing parties to the suit.
Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015) (quoting New Orleans
Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir. 1984)).
A movant must show that she satisfies each factor of the above test to be
entitled to intervene. Id.We review a ruling denying intervention as of right de novo. Edwards
v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996). “Although the movant
bears the burden of establishing its right to intervene, Rule 24 is to be liberally
construed.” Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir. 2014). “At this
stage, the court takes the movant’s factual allegations as true.” La Union del
Pueblo Entero v. Abbott, 29 F.4th 299, 305 (5th Cir. 2022).
To demonstrate inadequate representation under Rule 24(a)(2), a
movant’s burden is likewise “minimal.” Brumfield, 749 F.3d at 345.
Consequently, a movant must only show that the existing representation
“may be inadequate”; this showing need not amount to a certainty. La Union
del Pueblo Entero, 29 F.4th at 307–08. Nevertheless, a movant must overcome
two presumptions so that this requirement “ha[s] some teeth.” Brumfield,
749 F.3d at 345. The first only arises if “one party is a representative of the
absentee by law”—which is inapplicable to this case. Id. The second “arises
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when the would-be intervenor has the same ultimate objective as a party to
the lawsuit.” Id. (quoting Edwards, 78 F.3d at 1005). To overcome this
presumption, the movant must establish “adversity of interest, collusion, or
nonfeasance on the part of the existing party.” Id.“In order to show adversity of interest, an intervenor must
demonstrate that its interests diverge from the putative representative’s
interests in a manner germane to the case.” Texas, 805 F.3d at 662.
Differences of opinion regarding an existing party’s litigation strategy or
tactics used in pursuit thereof, without more, do not rise to an adversity of
interest. Lamar v. Lynaugh, 12 F.3d 1099, 1099 n.4 (5th Cir. 1993) (per
curiam); accord SEC v. LBRY, Inc., 26 F.4th 96, 99–100 (1st Cir. 2022) (“A
proposed intervenor’s desire to present an additional argument or a variation
on an argument does not establish inadequate representation.”); United
States v. City of New York, 198 F.3d 360, 367 (2d Cir. 1999); United States v.
Territory of Virgin Islands, 748 F.3d 514, 522 (3d Cir. 2014); Bradley v.
Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987); Jenkins by Jenkins v. Missouri,
78 F.3d 1270, 1275 (8th Cir. 1996) (“A difference of opinion concerning
litigation strategy or individual aspects of a remedy does not overcome the
presumption of adequate representation.”); Perry v. Proposition 8 Off.
Proponents, 587 F.3d 947, 954–55 (9th Cir. 2009); Jones v. Prince George’s
Cnty., Md., 348 F.3d 1014, 1020–21 (D.C. Cir. 2003); see, e.g., Ruiz v. Collins,
981 F.2d 1256 (5th Cir. 1992) (per curiam) (failure of class counsel to make
“all the arguments” as would-be intervenor insufficient for intervention as
of right); Bush v. Viterna, 740 F.2d 350, 358 (5th Cir. 1984) (“the mere
possibility that a party may at some future time enter into a settlement cannot
alone show inadequate representation”); cf. Entergy Gulf States La., L.L.C.
v. U.S. EPA, 817 F.3d 198, 204 (5th Cir. 2016) (“Entergy does not seem to
dispute that Sierra Club and EPA have divergent interests. Rather, Entergy
contends that the matters of stay and bifurcation concern mere litigation
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tactics that are within the district court’s broad discretion to regulate and do
not warrant intervention.”).
In denying the Press Plaintiffs’ motion to intervene as of right, the
district court held that the Press Plaintiffs failed to overcome the presumption
that they shared the same ultimate objective with the Guenther Plaintiffs. On
appeal, the Press Plaintiffs dispute that holding, arguing that their interests
are considerably distinct from those of the Guenther Plaintiffs, pointing to a
slew of negligible or spurious differences between the two actions. We will
address each of those in turn.
The Press Plaintiffs contend that part of the pension shortfall theory
underlying their claims is absent from the Guenther Action. According to the
Press Plaintiffs, the Guenther Action assumes that Sohio Legacy Employees’
RAP opening account balances were correct as of the Conversion Date, while
the Press Action alleges that those opening balances were insufficient when
compared to the ARP’s ending account balances. The Press Plaintiffs also
argue that the Guenther Action only seeks the sole remedy of reformation,
while the Press Action seeks the remedies of surcharge, disgorgement, and
restitution in addition to reformation. The Press Plaintiffs, however, largely
misconstrue the nature of the Guenther Action.
Whether the operative complaint in the Guenther Action includes the
relevant portion of the pension shortfall theory is a function of litigation
strategy—it does not reflect the scope of the Guenther Plaintiffs’ interests.
Similar factual allegations underpin the claims in both actions. Both groups
of plaintiffs allege the same primary harm—that the respective defendants
made insufficient disclosures regarding the Conversion—based on violations
of the same provision in ERISA. Most importantly, both the Guenther and
Press Plaintiffs share the same ultimate objective: they all seek for their
retirement plans to be made whole due to these alleged inaccurate
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disclosures. It is unnecessary for a complaint to allege every fact or theory
that is conceivably relevant so that a plaintiff may ultimately obtain relief. A
complaint opens the door to litigation; it is not the final word on the matter.
Plaintiffs are given many opportunities to amend their pleadings throughout
the course of an action, including stages later than where the Guenther Action
currently stands. 5 “If disagreement with an existing party over trial strategy
qualified as inadequate representation, the requirement of Rule 24 would
have no meaning.” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171,
181 (2d Cir. 2001).
The first two complaints in the Guenther Action specifically alleged
the pension shortfall theory. 6 Although that theory is absent from the
Guenther Plaintiffs’ second amended complaint, this is not conclusive
5
See Fed. R. Civ. P. 15(b)(1) (“If, at trial, a party objects that evidence is not
within the issues raised in the pleadings, the court may permit the pleadings to be amended.
The court should freely permit an amendment when doing so will aid in presenting the
merits and the objecting party fails to satisfy the court that the evidence would prejudice
that party’s action or defense on the merits.”); id. 15(b)(2) (“When an issue not raised by
the pleadings is tried by the parties’ express or implied consent, it must be treated in all
respects as if raised in the pleadings. A party may move—at any time, even after
judgment—to amend the pleadings to conform them to the evidence and to raise an
unpleaded issue. But failure to amend does not affect the result of the trial of that issue.”).
6
For example, the original complaint in the Guenther Action states:
In establishing the Opening Accounts as of January 1, 1989, the BP Plan
used an interest rate of 8 percent to calculate the present value of the
benefits that had accrued under the original Sohio Plan. That interest rate
exceeded the maximum interest rate permitted under ERISA and the
Internal Revenue Code for determining lump sum present values.
Similarly, the first amended complaint in the Guenther Action reads:
During the cash balance conversion, the RAP reduced the accrued benefits
that participants had already earned in the BP ARP by calculating the
present value of the accrued benefit as though the formula change had been
made before January 1, 1989. Consequently, the Opening Account balance
reduced participants’ accrued benefits.
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evidence that it has necessarily been abandoned. Rather, they may choose to
pursue the theory if this case proceeds to trial. Ultimately, though, this is just
one of many strategies that the Guenther Plaintiffs may employ in an effort to
prove that BP breached its fiduciary duties. The Press Plaintiffs cannot point
to an interest of theirs that is unique to and—at a minimum—potentially in
conflict with those of the Guenther Plaintiffs. The absence of the relevant
portion of the pension shortfall theory from the Guenther Plaintiffs’ operative
complaint, on its own, cannot amount to one.
The remainder of the Press Plaintiffs’ arguments are also unavailing,
all for the same reason: they lack a distinct interest that is at risk of being
adversely represented in the Guenther Action. First, the Press Plaintiffs assert
that they seek remedies in their action that are distinct from those that are
sought in the Guenther Action. They contend that the Guenther Plaintiffs only
request reformation of the RAP, while the Press Plaintiffs also seek surcharge,
disgorgement, and restitution. But in their operative complaint, the Guenther
Plaintiffs specifically state that they are entitled to surcharge (as an
alternative remedy) in addition to the catchall “all equitable relief to redress
[BP’s] breach of fiduciary duty,” which according to the complaint,
“include[es] reformation of the [RAP].” Restitution and disgorgement may
be enforced to the extent that they are equitable remedies under § 502(a)(3).
See Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002)
(“‘equitable relief’ in § 502(a)(3) must refer to ‘those categories of relief that
were typically available in equity’” (quoting Mertens v. Hewitt Assocs., 508
U.S. 248, 256 (1993))); id. at 218 (“Congress’s choice to limit the relief under
§ 502(a)(3) to ‘equitable relief’ requires us to recognize the difference
between legal and equitable forms of restitution.”); Liu v. SEC, 140 S. Ct.
1936, 1943 (2020) (describing disgorgement as sitting “squarely within the
heartland of equity”). Therefore, those remedies are necessarily subsumed
within “all equitable relief” that is sought by the Guenther Plaintiffs.
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The Press Plaintiffs counter that the district court certified the
Guenther Action “on the basis that it seeks reformation only.” In his
recommendation, the magistrate judge reasoned that the class should be
certified under Rule 23(b)(2), in part, because the Guenther Plaintiffs seek
declaratory relief. He subsequently noted that reformation is a “form of
declaratory relief in a similar context.” Nowhere in his recommendation (or
in the district court’s order adopting the recommendation) is there any
language precluding the Guenther Plaintiffs from maintaining their alternate
pleadings. Nor do the Press Plaintiffs cite any authority that such a limitation
should be presumed. Consequently, the premise of the Press Plaintiffs’
argument is meritless. 7
Second, the Press Plaintiffs argue that they “might” be inadequately
represented in the Guenther Action because, unlike in the Press Action, the
Guenther Plaintiffs have not brought a claim against BP p.l.c. According to
the Press Plaintiffs, the Guenther Action will likewise not address this claim
or its attendant allegations. But the Press Plaintiffs cannot explain why the
inclusion of BP p.l.c. would be uniquely beneficial or detrimental to them.
The Press Action alleges that BP p.l.c. “knowingly participated” in BP
America’s breach of its fiduciary duties by “directing, approving, or
otherwise assisting in” BP America’s breach. The Press Plaintiffs’ theory of
liability for BP p.l.c. is thus predicated on the same facts underlying its breach
7
The Press Plaintiffs also assert that their action is different because their complaint
alleges that BP America made misrepresentations in connection with an investigation it
commissioned from 2011 through 2014—an allegation that they argue is absent from the
Guenther Action. But for the reasons explained above, the choice to include this allegation
is merely another strategic decision and not germane to the case. Furthermore, the rights
of both the Guenther and Press Plaintiffs would be equally implicated based on this
allegation. The facts surrounding those allegations are equally applicable to both groups of
Plaintiffs. And the Press Plaintiffs do not seek a remedy unique to this allegation that would
only be applicable to their interests and not those of the Guenther Plaintiffs.
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of fiduciary duty claim against BP America—there is no independent theory
of liability against BP p.l.c. Furthermore, the remedy sought by both the
Guenther and Press Plaintiffs is identical, with or without BP p.l.c. as a party:
to be made whole from the same alleged breach of fiduciary duty. Therefore,
the Guenther Plaintiffs’ decision to exclude BP p.l.c. from their action
amounts to no more than a strategic decision as well.
Third, the Press Plaintiffs contend that our decision in La Union del
Pueblo Entero, 29 F.4th 299, earlier this year supports intervention in this
case. In La Union del Pueblo Entero, the United States and multiple groups of
private plaintiffs sued to enjoin the State of Texas, along with state and local
officials, from enforcing a new election law passed by the Texas Legislature.
29 F.4th at 304. Shortly thereafter, several committees associated with the
Republican Party moved to intervene under Rule 24(a)(2), but their motion
was denied. Id. On appeal, we reversed the district court’s decision and
allowed the committees to intervene as of right, even though they shared the
same ultimate objective with the governmental defendants—upholding the
election law. Id. at 308–09. We reasoned that because “there [were] reasons
to believe the Committees’ interests [were] less broad than those of the
governmental defendants,” this could lead to “divergent results.” Id. at 308.
Specifically, the governmental defendants preferred not to resolve the case
on the merits, planning instead to move for dismissal based on sovereign
immunity and standing arguments. Id. The committees, however, were
mainly interested in the “finality and certainty” that would come with a
decision on the statute’s constitutionality. Id. at 308–09. Unlike the
governmental defendants, the committees “rel[ied] on the expenditure of
their resources to equip and educate their members, along with relying on the
rights of the Committees’ members and volunteers who participate in the
election,” all of which was implicated by the statute at issue. Id. at 309.
Because these private economic interests were distinct from the public
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interests held by the governmental defendants, we determined that
“[n]either the State nor its officials [could] vindicate [the committees’]
interest while acting in good faith.” Id.
La Union del Pueblo Entero exposes the gaps in the Press Plaintiffs’
argument. There, the intervenors demonstrated that their interests were
narrower than and distinct from those of the governmental defendants.
Although both the governmental defendants and the intervenors sought to
defend the statute, the intervenors were able to show that their interests
might be put at greater risk under the governmental defendants’ preferred
defense strategy alone. Here, the Press Plaintiffs have failed to articulate how
their interests are distinct from those of the Guenther Plaintiffs. Accordingly,
the Press Plaintiffs cannot demonstrate how the Guenther Plaintiffs’ chosen
defense strategy is uniquely favorable to their own interests while placing
those of the Press Plaintiffs in jeopardy.
Fourth, the Press Plaintiffs argue that denying them intervention as of
right deprives them of their right to due process. According to the Press
Plaintiffs, they are at great risk of having their interests overlooked because
they can neither intervene in nor opt out of the Guenther Action. See Fed.
R. Civ. P. 23(c)(3) (only providing opt-out rights for members of a class
certified under Rule 23(b)(3)). The Press Plaintiffs contend that the outcome
of the Guenther Action may have a broad preclusive effect on any future
collateral attack. Indeed, we have stated that “[t]he concept of intervention
within a class certified under [Rule 23(b)(2)] balances the more likely
impairment of the individual’s interest since he is unable to opt out of this
class. Also, by allowing intervention, subsequent collateral attacks on the due
process preclusive effect of a judgment are avoided.” Woolen v. Surtran
Taxicabs, Inc., 684 F.2d 324, 332 (5th Cir. 1982). Woolen recognized the
increased utility of intervention in a class without opt-out rights where the
would-be intervenor risked having her interests ignored. Here, because the
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Press Plaintiffs cannot identify a unique interest of their own, they are unable
to specify how a determination in the Guenther Action could have a future
detrimental preclusive effect.
III.
The Press Plaintiffs cannot demonstrate that their interests diverge
from those of the Guenther Plaintiffs in any meaningful way. We are thus
satisfied that the Press Plaintiffs will be adequately represented despite their
absence from the Guenther Action. Therefore, for the foregoing reasons, we
AFFIRM.
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