18th Annual Workplace Class Action Report - 2022 Edition

614 Annual Workplace Class Action Litigation Report: 2022 Edition interest, unless existing parties adequately represent that interest. The Court also observed that Rule 24(b) also allows the exercise its discretion to permit intervention under certain circumstances. In weighing the relevant factors, the Court determined that Proposed Intervenors were not entitled to intervene as of right pursuant to Rule 24(a), but it granted the motion pursuant to Rule 24(b). The Court agreed that the Proposed Intervenors’ motions were timely and that they had an interest in the proceedings. Plaintiffs argued that intervention was not necessary to protect the Proposed Intervenors’ interests because they offered nothing new or original in their motions and sought intervention for the limited purpose of echoing the arguments made by the Direct Action Plaintiffs’ regarding opt-out rights. The Court concluded that the Proposed Intervenors had a cognizable interest in the proceedings as putative class members injured by Defendants’ alleged anticompetitive conduct. Moreover, the Court found that the Proposed Intervenors’ interests might be impaired if they were not allowed to intervene to oppose class certification because putative class members may not be allowed to opt-out of the injunctive relief class. However, the Court concluded that the Proposed Intervenors’ interests were adequately represented in the litigation because the Proposed Intervenors and Plaintiffs shared an identity of interest in that both sought to hold Defendants accountable for their alleged anticompetitive activity. Accordingly, because Plaintiffs and the Proposed Intervenors had the same ultimate objective in the litigation, the presumption of adequate representation attached, and the Proposed Intervenors failed to rebut that presumption. As such, the Court determined that the Proposed Intervenors were not entitled to intervene as a matter of right pursuant to Rule 24(a). However, the Court ruled that the Proposed Intervenors should be permitted to intervene permissively pursuant to Rule 24(b), because the Proposed Intervenors would significantly contribute to full development of the underlying factual issues relative to the opt-out issue. For these reasons, the Court granted the Proposed Intervenors’ motions for permissive intervention for the limited purpose of opposing the Rule 23(b)(2) motion for class certification. In Re Keurig Green Mountain Single-Serve Coffee Antitrust Litigation , 2021 U.S. Dist. LEXIS 71323 (S.D.N.Y. April 13, 2021). Plaintiffs filed a consumer class action alleging that Defendant utilized anti- competitive practices in the marketing of its single-serve packs of roasted and ground coffee, including forcing distributors to enter exclusive agreements, filing baseless patent infringement lawsuits against competitors, and attempting to dissuade retailers from selling competitors’ products. The parties ultimately settled the action and Defendant agreed to pay $31 million to a proposed class of indirect purchasers. The Attorneys General of Illinois and Florida objected to the method of distributing settlement funds to residents of their states, and filed a motion to intervene. The Court found little harm in granting the intervention bid since it was not opposed by any party, and denying the motion would threaten the interests of indirect purchasers in Illinois and Florida because they objected to the allocation plan (as they alleged they would receive less from the settlement than consumers in other states). The Intervenors contended that they requested a change in the allocation plan with class counsel on several occasions, but class counsel ultimately declined to amend the plan in a way that would change the amount of recoveries for purchases made in Florida and Illinois and purchases made in other states. Id . at *8. Therefore, the Court noted that without intervention, the parties were highly unlikely to change the allocation plan, which could potentially harm the Intervenors’ citizens. The Court also explained that there was clear evidence of adversity of interest since the parties were given the opportunity to amend the allocation plan and elected not to do so, thereby putting their interests squarely at odds with those of the Intervenors. Id . at *8-9. Accordingly, the Court granted the motion to intervene. In Re NFL Players ’ Concussion Injury Litigation, Case No. 12-MD-232 (E.D. Penn. June 6, 2021). Plaintiffs, a group of former professional football players, brought a multi-district class action against the NFL for head injuries sustained while playing professional football. The parties ultimately settled the action and the Court granted final settlement approval. On August 25, 2020, the law firm of Zuckerman Spaeder filed a lawsuit on behalf of two settlement class members, Najeh Davenport and Kevin Henry, alleging that the settlement utilized racially discriminatory procedures during the diagnostic process. On March 8, 2021, the Court dismissed the lawsuit, but referred class counsel Seeger Weiss and the NFL, the initial drafters of the agreement, to mediation. On March 15, 2021, Zuckerman Spaeder, on behalf of Davenport and Henry, moved to intervene and to stay the mediation. Id . at 2. Thereafter, the NFL agreed to replace the norms in the agreement with a new set of norms that “will be applied prospectively and retrospectively.” Id . at 3. The Court granted the motion to intervene in the action, as Davenport and Henry likely would be helpful in applying the new set of norms to the agreement. At the same time, the Court denied the motion to stay, and ordered the parties to continue with mediation.