Mendez v. Trustmark National Bank

Case: 19-11131 Document: 00515731294 Page: 1 Date Filed: 02/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 3, 2021
No. 19-11131 Lyle W. Cayce
Clerk
Peggy Roif Rotstain,
Plaintiff,
Official Stanford Investors Committee,
Intervenor Plaintiff—Appellee,
versus
Annalisa Mendez; Jana L. Amyx; Carlos Barbieri; Dorris
Burchett; Giancarlo Delon et al.,
Movants—Appellants,
versus
Trustmark National Bank; The Toronto-Dominion
Bank; SG Private Banking (Suisse) S.A.; HSBC Bank,
P.L.C.; Blaise Friedli; Independent Bank, formerly known as
Bank of Houston; Societe Generale Private Banking,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:09-CV-2384
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Before Owen, Chief Judge, and Davis and Southwick, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
This case arises from the Ponzi scheme perpetrated by R. Allen
Stanford, his co-conspirators, and the entities Stanford owned or controlled.
Plaintiffs, who are Stanford investors, brought suit against defendants, who
provided banking services to Stanford. Appellants, who moved to intervene,
are also Stanford investors and investment funds that purchased assignments
of claims from Stanford investors. The district court denied their motion
because it was untimely and because their interests are adequately protected
by the existing parties. We AFFIRM the denial of intervention as of right
and DISMISS the appeal of the denial of permissive intervention.
FACTUAL AND PROCEDURAL BACKGROUND
The Stanford Ponzi scheme operated until February 2009, when the
Securities and Exchange Commission (“SEC”) brought suit in the United
States District Court in Dallas. See Janvey v. Adams, 588 F.3d 831, 833 (5th
Cir. 2009). Almost immediately, the district court appointed Ralph S. Janvey
as receiver over the assets and records of Stanford, his co-conspirators, and
the Stanford entities. Id. Two months later, the district court appointed an
examiner to advise the court “in considering the interests of the investors.”
SEC v. Stanford Int’l Bank, Ltd., No. 3:09-CV-298-N (N.D. Tex. Apr. 20,
2009) (order appointing examiner).
Then, in August 2010, the district court created the Official Stanford
Investors Committee (“OSIC”) to represent Stanford investors. SEC v.
Stanford Int’l Bank, Ltd., No. 3:09-CV-298-N (N.D. Tex. Aug. 10, 2010)
(order creating OSIC). The order likens OSIC to a “committee appointed to
serve in a bankruptcy case.” Id. at 4. It states that “the members of the
Committee shall owe fiduciary duties to Stanford investors.” Id. It requires
the receiver and OSIC to cooperate “in the identification and prosecution of
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actions and proceedings for the benefit of the Receivership Estate and the
Stanford Investors.” Id. at 6. The Examiner chairs OSIC.
This action began in 2009 in Texas state court as a putative class
action. Plaintiffs brought claims for fraudulent transfer and fraud on the
theory that defendants knew or should have known that Stanford was
operating a Ponzi scheme. Defendants removed the action to the United
States District Court for the Southern District of Texas. The action was
subsequently transferred to the United States District Court for the
Northern District of Texas by order of the United States Judicial Panel on
Multidistrict Litigation.
OSIC intervened in the litigation, bringing claims for fraudulent
transfer, fraud, conversion, civil conspiracy, violations of the Texas
Securities Act, and breach of fiduciary duty. OSIC brings its claims “on
behalf of the Committee, the investors, and on behalf of the Receivership
Estate.” Any money recovered from defendants would be distributed to
Stanford investors.
Defendants moved to dismiss OSIC’s complaint on the basis that,
among other things, OSIC lacks standing to pursue claims on behalf of the
receivership estate and the Stanford investors. The district court held that
OSIC has standing to assert claims on behalf of both the receivership estate
and the Stanford investors.
The district court entered a scheduling order staying all discovery
except for that relevant to class certification. The named plaintiffs
subsequently moved to certify a class of “[a]ll persons who invested in
[Stanford International Bank Limited (“SIBL”)] CD(s) from August 23,
2004 – February 16, 2009, inclusive, and whose claims for losses related to
SIBL CDs are recognized, authorized, and calculated by the United States
Receiver for the Stanford Entities, Ralph S. Janvey.” In November 2017, the
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district court denied the motion for class certification and lifted the discovery
stay. We denied a motion for leave to appeal the class certification order.
After denial of class certification, the parties engaged in significant
fact discovery, including exchanging over one million pages of documents.
In April 2019, Appellants allege that OSIC and the Examiner sent
confusing signals about OSIC’s representation of investor claims. In a letter
posted to a website, OSIC’s counsel wrote:
ALL conceivable legal claims are being vigorously prosecuted
in the OSIC case and there is no imminent risk of any viable
individual claim being time-barred. This COULD change in
the future depending on developments in the OSIC case or
other court rulings, but we believe that no deadlines are
looming by which you will need to take any action to protect
your individual interests.
A few days later, the Examiner posted a “Statement Concerning
Investor Claims Against Bank Defendants.” Under a section entitled “The
Court’s decision to deny class certification may impact your legal rights,”
the post stated:
Under applicable law, the statutes of limitation began to run as
to any claims of individual Stanford investors against the Bank
Defendants when the Court entered its order denying class
certification. . . . The Examiner encourages individual
investors to consult with your own legal and other advisors
about the potential implications of that decision on your own
individual rights and possible recoveries. . . . The OSIC is
vigorously litigating the OSIC Bank Case for the benefit of the
Receivership Estate and Stanford claimants.
The Examiner again encourages individual investors to consult
with your own legal and other advisors about claims that you
may be able to bring against some or all of the Bank Defendants,
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and whether it is in your individual best interest to assert those
claims.
A few days after that posting, in an email exchange with one of the
Appellants, the Examiner explained:
The claims asserted by OSIC are primarily claims brought on
behalf of the Stanford entities that now belong to the Receiver.
For example, a claim that Allen Stanford and his co-
conspirators stole money from SIBL is a claim brought on
behalf of SIBL. A claim that the Banks helped Allen Stanford
commit fraud against the CD Investors (whether common law
fraud or statutory fraud) is really the claim of the individual
investor and isn’t a claim of the Stanford entity.
Less than two weeks later, Appellants moved to intervene as of right
and, alternatively, as permitted by the court. Appellants’ complaint asserted
claims for fraud, breach of fiduciary duty, conversion, and civil conspiracy as
well as claims under the Texas Securities Act and the Texas Theft Liability
Act. In August 2019, Appellants filed a supplemental motion for leave to
intervene to add additional intervenors. The district court denied
Appellants’ motions to intervene on the basis that they were untimely and
that OSIC adequately represents Appellants’ interests. This appeal
followed.
DISCUSSION
I. Mandatory intervention
An order denying intervention as of right is a final order that we have
jurisdiction to review under 28 U.S.C. § 1291. Sommers v. Bank of Am., N.A.,
835 F.3d 509, 512 (5th Cir. 2016). Our review of a denial is de novo. Edwards
v. City of Hous., 78 F.3d 983, 995 (5th Cir. 1996). Nonetheless, if a district
court denies a motion to intervene because it was untimely and explains its
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reasoning — and the district did both here — we review that decision for
abuse of discretion. See id. at 1000.
A district court must permit intervention if a timely motion is filed and
the movant “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 adequately represent that interest.” Fed. R.
Civ. P. 24(a)(2). Tracking the language of the rule, the court has found that
an applicant is entitled to intervention as of right if:
(1) the application for intervention [is] timely; (2) the applicant
[has] an interest relating to the property or transaction which
is the subject of the action; (3) the applicant [is] so situated that
the disposition of the action may, as a practical matter, impair
or impede his ability to protect that interest; (4) the applicant’s
interest [is] inadequately represented by the existing parties to
the suit.
International Tank Terminals, Ltd. v. M/V Acadia Forest, 579 F.2d 964, 967
(5th Cir. 1978). The court should “liberally construe[]” the test for
mandatory intervention and “allow intervention where no one would be hurt
and the greater justice could be attained.” Texas v. United States, 805 F.3d
653, 656–57 (5th Cir. 2015) (quotations omitted). A would-be intervenor
bears the burden to prove an entitlement to intervene; failure to prove a
required element is fatal. Edwards, 78 F.3d at 999.
We begin by analyzing timeliness. The court has identified four
factors, sometimes referred to as the Stallworth factors, to determine whether
a motion to intervene is timely: the length of time the movant waited to file,
the prejudice to the existing parties from any delay, the prejudice to the
movant if intervention is denied, and any unusual circumstances. Stallworth
v. Monsanto Co., 558 F.2d 257, 264–66 (5th Cir. 1977).
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A. Length of time
The first timeliness factor is “[t]he length of time during which the
would-be intervenor actually [knew] or reasonably should have known of his
interest in the case before he petitioned for leave to intervene.” Id. at 264.
In the discussion that follows, we employ the aspiring intervenors’ premise
that their interests are not protected; later we explain our different view.
Determining the length of delay requires identifying the starting point. We
have held that delay is measured “either from the time the applicant knew or
reasonably should have known of his interest or from the time he became
aware that his interest would no longer be protected by the existing parties to
the lawsuit.” Edwards, 78 F.3d at 1000 (emphasis added) (citation omitted).
In the case of a putative class action, the preferable starting point is
when the applicant became aware that its interests would no longer be
protected by the existing parties. If a court judged timeliness instead by the
length of time an applicant knew of its interests, a putative class member
would be motivated to intervene at the beginning of a case. Otherwise, a
district court might later deny class certification and also deny a motion to
intervene because of the amount of time that had passed since
commencement of the lawsuit. That incentive would defeat a “principal
function of a class suit,” which is “to avoid, rather than encourage,
unnecessary filing of repetitious papers and motions.” American Pipe &
Constr. Co. v. Utah, 414 U.S. 538, 551 (1974). Assessing delay from the time
when a movant becomes aware that its interests are unprotected encourages
the movant to file a motion if and when class certification is denied or some
other event suggests that the movant’s interests are no longer protected.
This rule would better serve the purpose of a class action lawsuit. See id.Since this lawsuit was filed as a putative class action, the beginning
date for measuring delay is when Appellants became aware that their
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interests were no longer protected by the existing parties. When was that?
OSIC argues that, at the latest, it was when class certification was denied.
Appellants argue that it was in April 2019 when they received confusing
messages from OSIC and the Examiner.
We conclude that Appellants knew or should have known that their
interests were not protected by the existing parties when class certification
was denied. To foreshadow our analysis, Appellants are chiefly concerned
that OSIC may lack standing to bring claims on behalf of Stanford investors.
At the moment class certification was denied, OSIC was the only existing
party that could bring claims on behalf of the Appellants. Any fear that OSIC
lacked standing to bring Appellants’ claims reasonably should have
materialized at that point.
The messages from the Examiner and OSIC’s counsel are irrelevant.
Those messages have no effect on the legal issue of whether OSIC has
standing to bring investor claims. It might be different if OSIC had
repudiated its intention to bring investor claims. The statements, though,
cannot fairly be read that way. OSIC said that “ALL conceivable legal claims
are being vigorously prosecuted in the OSIC case and there is no imminent
risk of any viable individual claim being time-barred,” and the Examiner said
that “OSIC is vigorously litigating the OSIC Bank Case for the benefit of the
Receivership Estate and Stanford claimants.” OSIC in fact continues to
litigate claims on behalf of Stanford investors.
Using the denial of class certification as the relevant starting point,
Appellants waited 18 months before moving to intervene. The district court
found that delay to be “significant.” In many of our cases where we have
found intervention motions to be timely, the delay was much shorter. See,
e.g., Sierra Club v. Espy, 18 F.3d 1202, 1206 (5th Cir. 1994) (delay of three
weeks); Edwards, 78 F.3d at 1000 (delays of 37 and 47 days); John Doe No. 1
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v. Glickman, 256 F.3d 371, 376 (5th Cir. 2001) (delay of one month). We
conclude that the district court did not abuse its discretion in determining
that a delay of 18 months weighed against timeliness.
B. Prejudice to parties
The second factor in evaluating timeliness is “[t]he extent of the
prejudice that the existing parties to the litigation may suffer as a result of the
would-be intervenor’s failure to apply for intervention as soon as he actually
knew or reasonably should have known of his interest in the case.”
Stallworth, 558 F.2d at 265. This factor is the “most important
consideration.” McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1073 (5th Cir.
1970). The district court held that the existing parties would suffer prejudice
if Appellants intervened because the parties would “need to conduct
extensive additional discovery and drastically alter pretrial deadlines.”
The existing parties would experience prejudice in at least two ways if
Appellants were granted leave to intervene after a delay of 18 months. First,
the existing parties would face a second round of fact discovery, significantly
increasing litigation costs. When class certification was denied, the parties
had conducted no discovery except for that related to class certification. Had
Appellants moved to intervene then, the parties could have negotiated and
developed a comprehensive plan for simultaneous fact discovery of all claims.
Appellants’ belated request for intervention, if granted, would force the
existing parties to negotiate and conduct a second round of fact discovery,
risking duplication, inefficiency, and increased costs.
Second, Appellants’ tardiness will delay final distribution of any
recovery. Had Appellants moved to intervene earlier, discovery of all claims
could have proceeded simultaneously, and there would have been minimal
delay in achieving final distribution. We have held that such delay is
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prejudice that weighs against a finding of timeliness. SEC v. Tipco, Inc., 554
F.2d 710, 711 (5th Cir. 1977).
Defendants Societe Generale Private Banking (Suisse) S.A. (“S.G.
Suisse”) and Blaise Friedli argue that they will be prejudiced by intervention
because the parties will need to brief and argue whether the district court has
personal jurisdiction over some of the defendants. We have held that
“prejudice must be measured by the delay in seeking intervention, not the
inconvenience to the existing parties of allowing the intervenor to participate
in the litigation.” Espy, 18 F.3d at 1206. Prejudice “that would have
occurred whether the delay was one week or one year” is not relevant to the
timeliness inquiry. Glickman, 256 F.3d at 378. The prejudice from resolving
personal jurisdiction would result whether Appellants had waited one week
or one year to move to intervene. Since such prejudice is inherent to
intervention generally, and not specific to delay, we will not consider it in our
timeliness analysis.
Given the prejudice to the existing parties in the form of costly and
inefficient discovery and delay of final distribution, the district court did not
abuse its discretion in finding that this factor weighs against timeliness.
C. Prejudice to Appellants
The third timeliness factor is “[t]he extent of the prejudice that the
would-be intervenor may suffer if his petition for leave to intervene is
denied.” Stallworth, 558 F.2d at 265. We have held that “critical to the third
Stallworth inquiry is adequacy of representation. If the proposed intervenors’
interests are adequately represented, then the prejudice from keeping them
out will be slight.” Lelsz v. Kavanagh, 710 F.2d 1040, 1046 (5th Cir. 1983).
A movant’s burden to show that its interests are not adequately protected is
“minimal” and “satisfied if the applicant shows that representation of his
interest ‘may be’ inadequate.” Trbovich v. United Mine Workers of Am., 404
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U.S. 528, 538 n.10 (1972) (citing 3B J. Moore, Federal Practice
24.09—1 (4) (1969)).
Appellants’ principal argument is that they will suffer prejudice
because OSIC lacks standing to pursue the claims Appellants seek to bring,
including the Texas Securities Act claim. Appellants rely on our opinion in
SEC v. Stanford Int’l Bank, Ltd. (Lloyds), 927 F.3d 830, 841 (5th Cir. 2019),
cert. denied sub nom. Becker v. Janvey, 140 S. Ct. 2567 (2020). In that case, we
vacated the district court’s approval of a settlement between the receiver and
insurance company underwriters. Id. at 836. The proposed settlement had
required the entry of bar orders extinguishing the claims of, among others,
coinsureds of insurance policies belonging to the Stanford entities. Id.Several aspects of our decision in Lloyds are relevant. First, we
reiterated a limitation on the standing of a federal equity receiver: “an equity
receiver may sue only to redress injuries to the entity in receivership,
corresponding to the debtor in bankruptcy and the corporation of which the
plaintiffs are shareholders in the derivative suit.” Id. at 841 (quoting Scholes
v. Lehmann, 56 F.3d 750, 753 (7th Cir. 1995)). Second, we found a connection
between standing to bring a claim and standing to settle a claim. We quoted
a sister circuit stating that “a trustee, who lacks standing to assert the claims
of creditors, equally lacks standing to settle them.” Id. (quoting DSQ Prop.
Co., Ltd. v. DeLorean, 891 F.2d 128, 131 (6th Cir. 1989)).
Applying these concepts, we held that the receiver lacked standing to
bring, and therefore to settle, extracontractual and statutory claims belonging
to Stanford managers and employees. Id. at 843. Those claims, which arose
from the underwriters’ handling of insurance claims made by the managers
and employees, were independent, non-derivative claims because they did
not depend on any injury to the Stanford entities. Id. at 843, 845. The claims
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did not affect the assets of the receivership because they did not implicate the
proceeds of insurance policies belonging to the Stanford entities. Id. at 845.
A few months later, we issued an opinion in another suit involving the
Stanford receiver’s authority. See Zacarias v. Stanford Int’l Bank, Ltd., 945
F.3d 883 (5th Cir. 2019), cert. denied sub nom. Zacarias v. Janvey, No. 19-1402,
2020 WL 7327837 (U.S. Dec. 14, 2020), and cert. denied sub nom. Rupert v.
Janvey, No. 19-1411, 2020 WL 7327838 (U.S. Dec. 14, 2020). In Zacarias,
two individual investors, the receiver, and OSIC brought suit against
insurance brokers, alleging that the brokers had participated in the Ponzi
scheme perpetuated by Stanford and associates. Id. at 889–92. The two
investors brought various claims, including for violation of the Texas
Securities Act. Id. at 892 n.16. The receiver and OSIC brought claims for
breach of fiduciary duty, breach of the duty of care, unjust enrichment,
fraudulent transfer, and civil conspiracy, though the civil conspiracy claim
was later dismissed. Id. at 893.
The parties agreed to a settlement with the insurance brokers
conditioned on a “global resolution of claims arising out of the Stanford Ponzi
scheme.” Id. at 894. Other Stanford investors objected to the settlement,
arguing that the receiver and OSIC lacked standing to bring or settle claims
belonging to the investors, including claims brought under the Texas
Securities Act. Id. at 899. Overruling these objections, the district court
approved the settlement and entered bar orders extinguishing any Ponzi-
scheme claims against the insurance brokers. Id. at 894.
On appeal, we affirmed. We concluded that the receiver and OSIC
had standing to settle the investors’ claims because such claims were
“derivative of and dependent on the receiver’s claims and compete with the
receiver for the dollars” that might be available. Id. at 901. First, the claims
were derivative and dependent because the receiver was suing to recover for
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an injury to the Stanford entities in the form of “additional liability Stanford
incurred to its investors” due to the insurance brokers’ participation in the
Ponzi scheme. Id. at 900. The investors’ claims depended on that injury;
had the Stanford entities not been injured, neither would the individuals who
invested in them. Id. Any difference between the styling of the receiver’s
claims and the investors’ claims was mere “word play.” Id. Second, the
investors’ claims would compete with receivership assets because “every
dollar the [investors] recover from [the insurance brokers] is a dollar that the
receiver cannot.” Id.We distinguished our holding in Lloyds because the defendants in
Lloyds had not participated in the Ponzi scheme and the claims brought by
the Stanford managers and employees were for “a distinct tort injury not
based on any conduct in furtherance of the Ponzi scheme.” Zacarias, 945
F.3d at 901. In contrast, the defendants in Zacarias were “active co-
conspirators in the Ponzi scheme,” and the investors’ claims arose from
conduct in furtherance of that scheme. Id.
These two opinions assist us in resolving whether OSIC has standing
to bring the claims Appellants seek to bring. The district court ruled that
OSIC has standing to pursue such claims as an assignee of the receiver. 1 That
order has not been challenged. The issue of standing is before us, though,
because of Appellants’ argument that they could suffer prejudice if
Defendants at some point succeed in their assertion that OSIC lacks standing
to bring claims for investors like the Appellants. In dispensing with that
argument, we affirmatively hold that OSIC has standing to assert the claims
Appellants seek to bring because such claims are derivative of and dependent
1
The district court also ruled that OSIC has standing to bring claims as an
unincorporated association of Stanford investors. That theory of standing was not pressed
by any party in their briefs and is therefore not considered here.
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on the receiver’s claims. OSIC seeks recovery for injury to the Stanford
entities in the form of the entities’ additional liability to investors due to
Defendants’ conduct. Appellants seek recovery for the same injury. If the
Stanford entities had suffered no injury, the investors would have no claims.
The claims here are more like the claims in Zacarias than Lloyds. As
in Zacarias, the Defendants here are alleged to be participants in the Ponzi
scheme, even if unknowing ones, and the investors’ claims are based on
conduct in furtherance of that scheme. As in Zacarias, any dollars the
investors independently recover would be dollars OSIC cannot. We are
bound by Zacarias to hold that OSIC, as assignee of the receiver, has standing
to bring the claims.
Appellants argue that Zacarias is inapposite because in that opinion
we acknowledged that the receiver and OSIC had brought “only the claims
of the Stanford entities — not of their investors.” Id. at 899. That argument
is misplaced. Our holding today is not based on the precise claims that the
receiver and OSIC actually brought in Zacarias. Our holding is based on our
conclusion in Zacarias that the claims the investors sought to bring were
derivative of and dependent on the receiver’s claims. Because the claims
were derivative and dependent, the receiver was authorized to bring them
and to settle them. Following Zacarias, the claims Appellants seek to bring
are also derivative of and dependent on the receiver’s claims, and OSIC is
authorized to bring them as assignee of the receiver.
Although we do not identify any prejudice to Appellants, we note that
even if there were some prejudice it would be mitigated by OSIC’s role in this
litigation. OSIC was created for the purpose of representing the interests of
Stanford investors. See SEC v. Stanford Int’l Bank, Ltd., No. 3:09-CV-298-
N (N.D. Tex. Aug. 10, 2010) (order creating OSIC). OSIC owes fiduciary
duties to the Stanford investors. Id. Any recovery OSIC obtains will be
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distributed to the Stanford investors, including Appellants. Id. The denial
of intervention will not exclude Appellants from recovery even if it were to
prejudice them in some way.
This factor weighs against timeliness.
D. Unusual circumstances
The last timeliness factor is “[t]he existence of unusual circumstances
militating either for or against a determination that the application is timely.”
Stallworth, 558 F.2d at 266. The district court found there are no unusual
circumstances to consider. Appellants argue that there are unusual
circumstances because Appellants were “led to believe that OSIC
represented their interests, and that there was no need to intervene.”
Appellants point to statements in OSIC’s pleadings that establish that OSIC
is bringing its claims on behalf of the receiver, the receivership estate, the
Stanford investors and itself. OSIC has not abandoned those claims. Since
there are no unusual circumstances militating for or against timeliness, this
factor is neutral.
E. Weighing the factors
Balancing the timeliness factors, the district court concluded that
Appellants’ motion was untimely. The analysis we just made supports that
conclusion. Since timeliness is a requirement for mandatory intervention,
the district court did not abuse its discretion by denying the motions to
intervene on that basis, and we need not address the other factors for
intervention.
II. Permissive intervention
We have “provisional jurisdiction” to review a district court’s order
denying permissive intervention. Edwards, 78 F.3d at 992. If the district
court did not abuse its discretion by denying permissive intervention, we
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“must dismiss the appeal for lack of jurisdiction.” Id. We retain jurisdiction
and reverse if the district court abused its discretion. Id. We have held that
reversing a district court’s decision denying permissive intervention is “so
unusual as to be almost unique.” New Orleans Pub. Serv., Inc. v. United Gas
Pipe Line Co., 732 F.2d 452, 471 (5th Cir. 1984).
A district court may permit intervention if a timely motion is filed and
the applicant “has a claim or defense that shares with the main action a
common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Timeliness
under mandatory intervention is evaluated more leniently than under
permissive intervention. Stallworth, 558 F.2d at 266. Because we conclude
that the district court did not abuse its discretion by determining that the
request for mandatory intervention was untimely, we also conclude that the
district court did not abuse its discretion by determining that the request for
permissive intervention was untimely. Accordingly, we do not have
jurisdiction over the appeal of the denial of permissive intervention.
III. Motion to strike
In their brief, S.G. Suisse and Friedli argue that the district court lacks
personal jurisdiction over them and that the order denying intervention can
be affirmed on that alternative basis. OSIC filed a motion to strike the
personal jurisdiction argument because S.G. Suisse and Friedli failed to file a
cross-appeal as to that issue. This argument about personal jurisdiction is
presented merely as an additional, though unsuccessful, reason to deny
intervention. The motion has no merit.
The motion to strike is DENIED. The appeal of the denial of
permissive intervention is DISMISSED. We AFFIRM the denial of
intervention as of right.
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