Singer v. WWF Operating Co.

294 F.R.D. 673, 2013 WL 5550389, 2013 U.S. Dist. LEXIS 147168
CourtDistrict Court, S.D. Florida
DecidedOctober 9, 2013
DocketNo. 13-21232-CIV
StatusPublished

This text of 294 F.R.D. 673 (Singer v. WWF Operating Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Singer v. WWF Operating Co., 294 F.R.D. 673, 2013 WL 5550389, 2013 U.S. Dist. LEXIS 147168 (S.D. Fla. 2013).

Opinion

ORDER ON MOTION TO INTERVENE

URSULA UNGARO, District Judge.

THIS CAUSE is before the Court on a Motion to Intervene brought by Alex Ang and Kevin Avoy. (D.E. 20.)

THE COURT has considered the motion and the pertinent portions of the record and is otherwise fully advised of the premises. The motion is fully briefed and ripe for review.

This is a class action, brought by Plaintiff Brenda Singer, on behalf of herself and all others similarly situated, against WWF Operating Company, also known as WhiteWave Foods. In the operative complaint, filed April 17, 2013, Singer alleged that WWF, which produces organic soy milks and other food products, purposefully misled and misrepresented to consumers that its products contained “evaporated cane juice,” a misleading term for sugar. (D.E. 4.) Also on April 17, 2013, Plaintiff filed an unopposed motion for preliminary approval of a class action settlement. (D.E. 5.) The Court granted that motion. (D.E. 9.) The Court defined the settlement class as all persons who, from January 1, 2005, to the present, purchased [675]*675WWF products throughout the United States for personal use and not for resale.1

The Court certified the class for purposes of settlement, preliminarily approved the settlement agreement, ordered the parties to comply with a plan for noticing the settlement class, and set a final fairness hearing. (D.E. 9.) The notice plan did not require individual notice be provided to any class member. It instead required that class notice be published in USA Today and on a website established for the purpose of providing notice. (D.E. 5-1 at 12.) It also required notice be given under the Class Action Fairness Act of 2005, 28 U.S.C. § 1715. Id. The Court found this notice to be the best notice practicable under the circumstances and to be fully compliant with the requirements of Rule 23 and of due process. (D.E. 9.)

Upon the Court’s preliminary approval of the agreement, the parties set about complying with the approved notice plan. On June 20, 2013, Plaintiff filed an unopposed motion for final approval of class settlement, for approval of class counsel fees, and for entry of final judgment pursuant to class settlement. (D.E. 13.) That motion stated that, consistent with the Court’s preliminary order, notice was disseminated by publication in USA Today and online through a settlement information website. Attached to that motion was the declaration of the settlement administrator, who stated that as of June 19, 2013, 2,825 claims had been filed. (D.E. 13-1 at 4.) On June 28, 2013, the Court held a fairness hearing. (D.E. 49.) No one appeared at that hearing to object to the settlement, and no one filed written objections. (D.E. 49 at 2.) Following that hearing, and in accordance with the Court’s rulings from the bench, the Court entered an order approving the class settlement and a final judgment dismissing the ease. (D.E. 19.) The settlement provided for injunctive relief by requiring that WWF cease using the term “evaporated cane juice” to describe the ingredients in its products. (D.E. 5-1 at 7.) It also provided for monetary relief in the form of partial refunds to the settlement class members. Id. at 8.

On July 12, 2013, Ang and Avoy filed the instant motion to intervene. (D.E. 20.) Ang and Avoy are absent class members who have a similar action pending against WWF in California. That action was filed on April 29, 2013-after the Court certified this class action, but before it held the fairness hearing and finally approved of the settlement agreement. Ang and Avoy argue that, because they had a concurrent action pending against WWF during the notice period, the parties to this action could have, through reasonable effort, discerned that they were members of the class and provided them with individual notice of this action. They did not receive individual notice, and only learned of this action when their counsel discovered a website containing information about the settlement. By that time, the Court had already held a fairness hearing and approved the settlement agreement. Ang and Avoy therefore moved to intervene, arguing that the parties’ failure to provide them individual notice was a violation of their due process rights. They seek to intervene in order to bring a Rule 60 motion to set aside the settlement, on the basis that it was approved in violation of their due-process right to notice.

Pursuant to Rule 24(a)(2), the Court must permit a party to intervene as of right if four requirements are met: (1) the motion to intervene is timely; (2) the movant has an interest relating to the property or transaction which is the subject of the action; (3) the movant is so situated that disposition of the action may impede or impair the movant’s ability to protect that interest; and (4) the movant’s interest will not be represented adequately by the existing parties to the suit. Fed. R. Civ. Pro. 24(a)(2); see also Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 910 (11th Cir.2007). It is the movant’s burden to show that all four requirements are met. Sierra Club, Inc., 488 F.3d at 910.

Under Rule 24(b), the Court may permit anyone to intervene who has a claim or de[676]*676fense that shares with the main action a common question of law or fact. Fed. R. Civ. Pro. 24(b)(1)(B). The Court must consider the whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights. Fed. R. Civ. Pro. 24(b)(3). The Court first addresses the requirements of intervention as of right under Rule 24(a).

(1) The motion to intervene must be timely. In deciding whether a motion to intervene is timely, the Court considers (1) the length of time during which the proposed intervenor knew or reasonably should have known of the interest in the case before moving to intervene; (2) the extent of prejudice to the existing parties as a result of the proposed intervenor’s failure to move for intervention as soon as it knew or reasonably should have known of its interest; (3) the extent of prejudice to the proposed intervenor if the motion is denied; (4) and the existence of unusual circumstances militating either for or against a determination that their motion was timely. Georgia v. U.S. Army Corps Of Engineers, 302 F.3d 1242, 1259 (11th Cir.2002).

Although Ang and Avoy did not actually learn of this action until July 5, 2013 and promptly moved to intervene thereafter, they reasonably should have learned of its existence by April 29, 2013, the date on which they filed their own class action against WWF. In preparing and filing their own action, Ang and Avoy reasonably should have performed some basic research to determine whether other, similar claims had been filed against WWF. It is reasonable to assume that a class plaintiff would know, through such basic research, of earlier-filed lawsuits. Therefore, the date that Ang and Avoy reasonably should have known of this action is April 29, 2013. But, due to their inattention, they failed to intervene until after the Court approved a final settlement between the parties.

The delay resulting from Ang and Avoy’s failure to promptly act will severely prejudice the existing parties.

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Related

Georgia v. United States Army Corps of Engineers
302 F.3d 1242 (Eleventh Circuit, 2002)
Sierra Club Inc. v. Michael O. Leavitt
488 F.3d 904 (Eleventh Circuit, 2007)
Zuzanna Juris v. Inamed Corporation
685 F.3d 1294 (Eleventh Circuit, 2012)
Fidel v. Farley
534 F.3d 508 (Sixth Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
294 F.R.D. 673, 2013 WL 5550389, 2013 U.S. Dist. LEXIS 147168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/singer-v-wwf-operating-co-flsd-2013.