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In re Samsung Top-Load Washing Machine Marketing, Sales Practices and Product Liability Litigation

United States District Court, W.D. Oklahoma

August 2, 2018

IN RE SAMSUNG TOP-LOAD WASHING MACHINE MARKETING, SALES PRACTICES AND PRODUCT LIABILITY LITIGATION THIS DOCUMENT RELATES TO ALL CASES

          ORDER

          TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE

         Before the Court is Colleen Kennedy, David Foster and Mitchell Orenstein's (collectively “Proposed Intervenors”) Motion to Intervene and Stay Proceedings [Doc. No. 103] and Brief in Support [Doc. No. 103-1]. Defendants have responded [Doc. No. 110] with no opposition to Proposed Intervenors' Motion to Intervene. Defendants have not responded to the Motion to Stay Proceedings.[1] Plaintiffs have responded in opposition only to intervention as of right and to the Motion to Stay Proceedings [Doc. Nos. 111]. Proposed Intervenors have filed a Reply [Doc. No. 114].[2] The matter is fully briefed and at issue.

         FACTUAL AND PROCEDURAL BACKGROUND

         Proposed Intervenors, all represented by the same attorney (Bruce Nagel), filed putative class actions on August 7, 2014, and June 15, 2015, in the District of New Jersey against Defendant Samsung Electronics America, Inc. (“SEA”).[3] The cases alleged that certain Samsung top-load washing machines contained a drain pump design defect. Philip Oliss, also counsel herein, represents SEA in the Kennedy/Orenstein litigation. The cases were assigned to Judge William J. Martini. The relevant procedural history is set forth in this Court's June 14, 2018, Order [Doc. No. 95] directing counsel to notify the Judicial Panel on Multidistrict Litigation (“JPML”) regarding Kennedy/Orenstein and will not be restated here.[4]

         Pursuant to that June 14, 2018, Order the MDL counsel were “to take all appropriate steps to immediately notify the JPML regarding the Kennedy/Orenstein cases so that it may consider adding the Kennedy/Orenstein class actions as tag-along actions to the MDL.” Order [Doc. No. 95] at 7. Defendant Samsung filed a Notice of Potential Tag-Along Actions with the JPML on June 15, 2018. JPML Doc. No. 46. Mr. Oliss signed the Notice. On the same day, Judge Martini sua sponte stayed the Kennedy/Orenstein cases pending the JPML determination as to whether the cases would be added to the MDL. Kennedy/Orenstein [Doc. No. 81] at 2.

         On June 19, 2018, the JPML issued a Conditional Transfer Order transferring the Kennedy/Orenstein cases to the MDL. JPML [Doc. No. 47]. The Kennedy/Orenstein plaintiffs filed a Notice of Opposition to Conditional Transfer Order (CTO-2) and Motion to Vacate Conditional Transfer Order on June 26, 2018. JPML [Doc. No. 53] and JPML [Doc. No. 54]. The MDL parties filed timely responses to the Motion to Vacate. JPML [Doc. No. 60] and JPML [Doc. No. 62].

         Proposed Intervenors filed a Motion to Intervene and to Stay the Proceedings [Doc. No. 103] in the MDL on July 3, 2018. The MDL Plaintiffs filed an Unopposed Motion for Preliminary Approval of Settlement [Doc. No. 108] on July 9, 2018. Both Plaintiffs and Defendants filed their responses to Proposed Intervenors' Motion to Intervene on July 18, 2018. Proposed Intervenors filed their Reply [Doc. No. 114] on July 24, 2018.

         DISCUSSION

         I. Motion to Intervene

         Proposed Intervenors have moved to intervene pursuant to Fed.R.Civ.P. 24 (a) as a matter of right or (b) with court permission.

         A. Intervention as of Right

         Intervention is permitted as of right under Fed.R.Civ.P. 24 (a)(2), when the party satisfies the following requirements: “(1) the application is timely; (2) the applicant claims an interest relating to the property or transaction which is the subject of the action; (3) the applicant's interest may as a practical matter be impaired or impeded; and (4) the applicant's interest is not adequately represented by existing parties.” W. Energy All. v. Zinke, 877 F.3d 1157, 1164 (10th Cir. 2017) (quoting United States v. Albert Inv. Co., 585 F.3d 1386, 1391 (10th Cir.2009)); see also, Elliott Indus. Ltd. P'ship v. BP Am. Prod. Co., 407 F.3d 1091, 1103 (10th Cir. 2005).

         The Tenth Circuit has “historically taken a ‘liberal' approach to intervention and thus favors the granting of motions to intervene.” W. Energy All. v. Zinke, 877 F.3d 1157, 1164 (10th Cir. 2017) (citing Coal. of Ariz./N.M. Ctys. for Stable Econ. Growth v. Dep't of Interior, 100 F.3d 837, 841 (10th Cir. 1996); see Elliott Indus. Ltd. P'ship v. BP Am. Prod. Co., 407 F.3d 1091, 1103 (10th Cir. 2005) (the Tenth Circuit generally follows a liberal view in allowing intervention under Rule 24(a) (citing Nat'l Farm Lines v. ICC, 564 F.2d 381, 384 (10th Cir.1977)); Utah Ass'n of Ctys. v. Clinton, 255 F.3d 1246, 1249 (10th Cir. 2001) (“This circuit follows ‘a somewhat liberal line in allowing intervention.'”) (quoting Nat'l Farm Lines v. Interstate Commerce Comm'n, 564 F.2d 381, 384 (10th Cir.1977)). However, this liberal view does not obviate the movant's burden of demonstrating the requirements set forth in Fed.R.Civ.P. 24 (a)(2).

         Fed. R. Civ. P. 24 (a)(2) “is not a mechanical rule[, ] [i]t requires courts to exercise judgment based on the specific circumstances of the case.” See San Juan County v. United States, 503 F.3d 1163, 1199 (10th Cir.2007) (en banc), abrogated on other grounds by Hollingsworth v. Perry, 570 U.S. 693, 133 S.Ct. 2652, 2659-65 (2013). The party seeking intervention “must have an interest that could be adversely affected by the litigation. But practical judgment must be applied in determining whether the strength of the interest and the potential risk of injury to that interest justify intervention.” Id.; see also Albert Inv. Co., 585 F.3d at 1392.

         1. Timeliness

         The Court assesses the timeliness of a motion to intervene “in light of all of the circumstances.” W. Energy All. v. Zinke, 877 F.3d 1157, 1164 (10th Cir. 2017) (quoting Okla. ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223, 1232 (10th Cir. 2010)). The Tenth Circuit has noted that “three non-exhaustive factors are ‘particularly important: (1) the length of time since the movants knew of their interests in the case; (2) prejudice to the existing parties; and (3) prejudice to the movants.'” Id. (quoting Tyson, 619 F.3d at 1232).

         Timeliness is intended to be “a guard against prejudicing the original parties by the failure to apply sooner” rather than a means of “retribution to punish the tardy.” Ass'n of Ctys. v. Clinton, 255 F.3d 1246, 1250 (10th Cir. 2001) (quoting Sierra Club v. Espy, 18 F.3d 1202, 1205). In considering the issue of timeliness, the Tenth Circuit has stated that “[f]ederal courts should allow intervention ...


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