United States District Court, W.D. Oklahoma
IN RE SAMSUNG TOP-LOAD WASHING MACHINE MARKETING, SALES PRACTICES AND PRODUCT LIABILITY LITIGATION THIS DOCUMENT RELATES TO ALL CASES
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE
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. 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]. The matter is fully briefed and at
AND PROCEDURAL BACKGROUND
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”). 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
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.
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].
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
Motion to Intervene
Intervenors have moved to intervene pursuant to Fed.R.Civ.P.
24 (a) as a matter of right or (b) with court permission.
Intervention as of Right
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).
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
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.
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).
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