On October 7, 2022, the U.S. Court of Appeals for the Fifth Circuit denied a purported class representative’s attempt to intervene in a class action. The class representative had argued that his interests were not adequately represented.

This case, Guenther v. BP Retirement Accumulation Plan, 50 F.4th 536 (5th Cir. 2022), concerns two actions: the Guenther action, and the Press action.  Two Sohio Legacy Employees filed the Guenther action against their employers for violations of ERISA.  Four years later, 277 employees of Sohio Legacy Employees filed the Press action against the same employers, claiming violations under § 404(a).  The Press action was stayed pending resolution of the Guenther action, which was “nearly identical” and at an advanced stage of litigation.  The Press plaintiffs filed a motion to intervene in the Guenther action.

The district court in the Southern District of Texas found that “both the Guenther and Press Plaintiffs had the same ultimate objective” creating a presumption of adequate representation.  The district court acknowledged that this presumption can be overcome by showing an “adversity of interest, collusion, or nonfeasance[,]” but held that the Press plaintiffs failed to overcome this presumption, denying the motion to intervene.  The Press plaintiffs appealed this decision to the Fifth Circuit.

When evaluating a motion for intervention as of right, a four-factor test is applied.  The fourth factor concerns whether the plaintiffs seeking intervention were adequately represented by existing parties.  Traditionally, the movant only had to show that existing representation “may be inadequate[,]” which is a very minimal burden.  But courts, like the Fifth Circuit, have interpreted this so-called minimal burden as one that is in fact difficult to overcome.  In this case, the Fifth Circuit determined that the Press plaintiffs were unable to prove “their interests diverged from those of the Guenther [p]laintiffs in any meaningful way[,]” despite the Press plaintiffs’ evidence indicating otherwise.

The U.S. Court of Appeals for the Ninth Circuit recently found in accordance with this Fifth Circuit decision, rejecting a similar motion to intervene on an inadequate representation theory.  In this case, Kang v. Fyson, No. 22-15694, 2022 WL 6943174, at *3 (9th Cir. Oct. 12, 2022), the court not only denied the motion to intervene, but explicitly acknowledged that “the better course for class members who oppose a settlement is to object to the settlement rather than seeking to intervene.”   

These decisions show that at least two U.S. Courts of Appeals are skeptical over attempts of purported putative class members to intervene and challenge some aspect of the class counsel’s representation.  Companies, however, must remain diligent over continued attempts to intervene.  This is especially true after class certification has been denied and the named plaintiff’s claims have been resolved on an individual basis.  In that instance, intervenors may attempt to intervene arguing that the named class member can no longer represent the interests of the class and appeal the class certification denial.