United States District Court, N.D. California
ORDER DENYING JOHN F. LACKEY'S MOTION TO
INTERVENE RE: DKT. NO. 232
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE
plaintiffs Arkansas Teacher Retirement System and KBC Asset
Management NV (collectively, “plaintiffs”) bring
this putative securities fraud class action pursuant to
Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, and Rule 10b-5 promulgated thereunder.
before the Court is a motion to intervene filed by class
member John F. Lackey. (Dkt. No. 232.) Having carefully
considered the papers submitted and for the reasons set forth
below, the Court Denies Lackey's motion to intervene.
January 15, 2014, plaintiffs publicized the pendency of this
securities class action in accordance to the Private
Securities Litigation Reform Act. (Dkt. No. 17-3.) Lackey
received a notice of the pendency of this action on December
28, 2016. (Dkt. No. 237.) Lackey was afforded an opportunity
to opt out by January 19, 2017 and he did not. (Dkt. No.
235.) As such, Lackey is currently a class member. Lackey now
moves pro se to intervene as a party plaintiff under Federal
Rules of Civil Procedure 24(a) and 24(b). (Dkt. No. 232.)
The Court addresses each below.
Rule 24(a): Intervention as of Right
Federal Rule of Civil Procedure 24(a), an applicant seeking
intervention as of right must show either an
“unconditional right to intervene by a federal
statute” or satisfy a four-factor test. The applicant
must (1) assert a significant protectable interest relating
to the property or transaction that is the subject of the
action; (2) be represented inadequately by the parties to the
action; (3) be situated such that disposition of the action,
as a practical matter, may impair or impede one's ability
to protect that interest; and (4) file a timely motion.
Fed.R.Civ.P. 24(a); Citizens for Balanced Use v. Mont.
Wilderness Ass'n, 647 F.3d 893, 897 (9th Cir. 2011)
(citing Prete v. Bradbury, 438 F.3d 949, 954 (9th
Cir.2006)). Failure to satisfy any one of the requirements is
fatal to the application, and a court need not reach the
remaining elements if one of the elements is not satisfied.
Perry v. Proposition 8 Official Proponents, 587 F.3d
947, 950 (9th Cir. 2009).
does not argue that a federal statute grants him the right to
intervene in this action. Rather, he argues that he meets the
four-factor test. With respect to the first factor,
plaintiffs do not dispute that Lackey has a significant
protectable interest relating to the subject of this class
action. However, he fails to satisfy the second and third
factor. In that regard, Lackey has not demonstrated that the
existing parties inadequately represent his interests. He
merely concludes that plaintiffs would not be in the position
to offer an adequate defense for him if defendants were to
move to de-certify the class or seek his exclusion from the
class. The Court finds no support for this argument. The
class representatives are sophisticated investors with a
substantial stake in the outcome of the litigation and are
represented by qualified attorneys. They are more than
adequate to represent the class. Furthermore, Lackey's
reliance on Citizens for Balanced Use v. Mont. Wilderness
Ass'n, 647 F.3d 893 (9th Cir. 2011) is inapposite.
There, the existing parties did not adequately represent the
intervenors' interests-intervenors were seeking the
broadest possible restrictions on recreational use of
motorized vehicles, while the United States Forest Service
(“Forest Service”) was seeking minimal
restrictions in compliance with their statutory mandate.
Citizens, 647 F.3d at 899. In fact, the possibility
existed that the Forest Service would abandon its defense and
withdraw the restrictions altogether if its appeal of a prior
district court ruling (which was the result of
applicants' prior successful litigation) were to succeed.
Id. at n.4. Lackey has made no such showing of
inadequate representation of his interests.
Lackey has not demonstrated that the disposition of this
matter without his participation could impair or impede his
ability to protect this own interests. He only argues that
the disposition substantially affects his interests. Nowhere
does he explain how he is impaired or impeded. Lackey was
afforded the opportunity to opt out of the action and will be
afforded the opportunity to object to any potential
Lackey fails to satisfy at least two separate factors, the
Court need not address the remaining Rule 24(a) factor.
See Perry, 587 F.3d at 950. The motion is denied as
to Rule 24(a).
Rule 24(b): Permissive Intervention
Lackey asks this Court to allow him to intervene permissively
pursuant to Federal Rule of Civil Procedure 24(b). Under this
rule, an applicant, on timely motion, must show either a
conditional right to intervene pursuant to a federal statute
or that an asserted claim or defense shares a “common
question of law or fact” with the main action.
Fed.R.Civ.P. 24(b)(1). In exercising their discretion, courts
must “consider whether the intervention will unduly
delay or prejudice the adjudication of the original
parties' rights.” Fed.R.Civ.P. 24(b)(3); see
also In re Benny, 791 F.2d 712, 722 (9th Cir. 1986).
fails to address the legal standard under Rule 24(b). It is
his burden to demonstrate how he meets this standard, and he
has failed to do so. Instead, Lackey only argues that there
is no undue delay or prejudice to the original parties
because discovery is ongoing and he is an experienced lawyer.
However, Lackey's experience as a lawyer is not relevant
to a finding of prejudice. Given the procedural posture of
this case and the impeding deadlines, the Court finds a
significant potential for delay. In light of this potential
and the lack of any affirmative showing, the Court will not
allow Lackey to intervene permissively under Rule 24(b).