After the matter ended, a health care economist sought to intervene in a qui tam case about medical billing, wanting to challenge a protective order that covered documents in which he had professional interest.

The Fifth Circuit did not rule that he had the right to intervene, but did reverse the district court’s denial of his petition, finding that it had erred on points of law in evaluating his standing, his “claim or defense” that justified intervention, and the timeliness of his petition. U.S. ex rel Hernandez v. Team Finance LLC, No. 22-40707 (Aug. 31, 2023).

Certain app developers had a sufficient interest to intervene in an FLSA case against Anadarko when: “The plaintiffs … represented in their contracts with the Intervenors that they were ‘independent professionals’—somewhat in tension with the plaintiffs’ current litigation position that they were really Anadarko’s employees. More importantly, the plaintiffs agreed to arbitrate ‘every claim, controversy, allegation, or dispute arising out of or relating in any way to’ not only their relationship with the Intervenors, but also their resulting work placements with Anadarko.” Field v. Anadarko Petroleum, No. 22-20054 (June 7, 2022).

The “Official Stanford Investors Committee” (“OSIC”), a creation of the receivership arising from the Allen Stanford Ponzi scheme, sought to intervene in ongoing tort litigation about the scheme. The Fifth Circuit affirmed the denial of OSIC’s request.

Fed. R. Civ. P. 24(a)(2) sets four requirements for an application to intervene. The first requirement, timeliness, is also defined by reference to four factors. (1) the length of time the movant waited to file, (2) the prejudice to the existing parties from any delay, (3) the prejudice to the movant if intervention is denied, and (4) any unusual circumstances.  Here, noting no unusual circumstances, the Court reasoned:

• Length of time. “Using the denial of class certification as the relevant starting point, Appellants waited 18 months before moving to intervene. … In many of our cases where we have found intervention motions to be timely, the delay was much shorter.”
• Prejudice to parties. “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. …Second, Appellants’ tardiness will delay final distribution of any recovery.”
• Prejudice to intervenor. After reviewing the complex standing issues surrounding the Stanford claims: “The denial of intervention will not exclude Appellants from recovery even if it were to prejudice them in some way.”

Rotstain v. OSIC, No. 19-11131 (Feb. 3, 2021).

St. Bernard Parish v. Lafarge North America, the long-running litigation about damages related to Hurricane Katrina and a large Lafarge barge, led to an appeal by Seymour – a former attorney for some of the claimaints, whose attempt to intervene in the case and collect his fee was rejected. The Fifth Circuit affirmed, noting, inter alia, that he was not entitled to rely upon representation of his interests by other parties after his 2011 withdrawal, and that he appeared capable of pursuing relief in other fora. No. 18-30029 (Feb. 1, 2019).

Michael Swoboda sued Continental Enterprises, claiming that it conducted an investigation into alleged trademark infringement led to his wrongful discharge. He sought the production of documents that Continental alleged were protected as work product. The district court allowed the discovery and denied the intervention by Heckler & Koch, the gunmaker whose rights about the G36 submachine gun (above) were at issue and had retained Continental.

The Fifth Circuit reversed, holding: “Continental’s work product privilege argument was overruled because Continental is a company that engages in investigative work, and the district court concluded that the discovery that Swoboda sought was produced in Continental’s ordinary course of business, i.e., in the course of a Continental investigation. HK is a gun manufacturer. Investigations are not a part of HK’s ordinary course of business. Some of the discovery that Swoboda sought was, from HK’s perspective, prepared in anticipation of litigation. We have held that an applicant-intervenor should be allowed to intervene when it ‘has a defense not available to the present defendant.’ HK has a defense unavailable to Continental, and it should have been allowed to present that defense in the district court.” Swoboda v. Manders, No. 16-30074 (Oct. 31, 2016, unpublished).

Jones, the sole shareholder of a bankrupt business, moved to intervene in a lawsuit between the trustee for the business and Bank of America — two weeks after the parties had filed a stipulation of dismissal that the district court accepted. The district court denied Jones’s motion; he appealed, and the Fifth Circuit affirmed. As to the stipulation of dismissal, the appeal was untimely; as to the intervention, while Jones’s late arrival did not bar his motion outright, it heavily influenced the relevant factors against him. Sommers v. Bank of America, No. 15-20775 (Aug. 26, 2016).

Two individuals, involved in a political struggle about a camera system for traffic lights, sought to intervene of right in a lawsuit between the City of Houston and the system’s contractor.  City of Houston v. American Traffic Solutions (No. 11-20068, Jan. 24, 2012).  The Court reviewed the general requirements of Fed. R. Civ. P. 24(a)(2) but observed that “[b]riefing does not reveal any cases directly on point” to this situation.  Op. at 4.  The Court reversed the district court’s denial of intervention, observing that “[a] court must be circumspect about allowing intervention of right by public-spirited citizens,” but finding that these individuals were exceptionally involved in the political background for the system, and that the City was not necessarily an adequate representative for them in light of the specific history of this system and litigation.  Op. at 4-5.