Guenther v. BP Retr Accumulation

Case: 21-20617 Document: 00516500599 Page: 1 Date Filed: 10/07/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

October 7, 2022

No. 21-20617 Lyle W. Cayce

Clerk

Fredric A. Guenther; Walton Fujimoto, Les Owen

Plaintiffs—Appellees,

versus

BP Retirement Accumulation Plan; BP Corporation

North America, Incorporated,

Defendants—Appellees,

versus

Michael Press,

Movant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:16-CV-995

Before King, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:

Appellees have been adversaries in a protracted class action for over

six years, based on disputed events occurring more than thirty years ago.

After almost five years of litigation, and on the eve of class certification,

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Appellant, who has separately been engaged in an action against Defendants-

Appellees, moved to intervene. Despite their differences, Appellees agreed

that this motion should be denied. The district court subsequently denied

Appellant’s motion, and this appeal followed. On appeal, Appellees continue

to jointly oppose Appellant’s intervention. For the reasons stated below, we

AFFIRM.

I.

In 1987, a subsidiary of British Petroleum, now known as BP

Corporation North America Inc. (“BP America,” a Defendant-Appellee in

this action), acquired Standard Oil of Ohio (“Sohio”). Prior to the

acquisition, Sohio employees were members of a Sohio sponsored defined

benefit retirement plan (the “Sohio Plan”), which calculated its pension

distributions using a formula based on an employee’s earnings history, tenure

of service, and age. Therefore, once employees contributed to the Sohio Plan,

Sohio bore the entirety of the investment risk as distribution amounts were

based on a predetermined formula that did not account for market

performance.

At the time of the acquisition, Sohio’s employees became employees

of BP America (the “Sohio Legacy Employees”). On January 1, 1988, BP

America converted the Sohio Plan, along with several other defined benefit

plans, into a new plan called the BP America Retirement Plan (the “ARP”).

Notably, the ARP was also a defined benefit plan that retained the formula

used by the Sohio Plan to calculate its members’ pension distributions. One

year later, however, BP America converted the ARP into the BP Retirement

Accumulation Plan (the “RAP,” the conversion from the ARP to the RAP as

the “Conversion,” and the date of the Conversion as the “Conversion

Date”), the other Defendant-Appellee in this action. Unlike its predecessor

plans, the RAP was a cash balance plan, which calculated distributions, in

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part, based on fluctuating interest rates. Thus, under the RAP, employees

bore some additional risk because distributions were now based, in part, on

market performance.

A. The Guenther Action

On April 13, 2016, Plaintiffs-Appellees, two Sohio Legacy Employees,

Fredric A. Guenther and Walton Fujimoto, 1 (the “Guenther Plaintiffs”) filed

a class action complaint against the RAP and BP America (collectively,

“BP”) in the United States District Court for the Southern District of Texas

alleging that BP violated numerous provisions of the Employee Retirement

Income Security Act (“ERISA”) by causing Sohio Legacy Employees to

forfeit benefits that they had already accrued and failing to properly disclose

this change in their benefits when BP initiated the Conversion (the “Guenther

Action”). Specifically, the Guenther Plaintiffs alleged that BP should have

credited the Sohio Legacy Employees’ new RAP opening account balances

with the value of their ARP ending account balances as of the Conversion

Date, January 1, 1989. But according to the Guenther Plaintiffs, BP instead

calculated the Sohio Legacy Employees’ ARP ending account balances as of

a date earlier than the Conversion Date. BP then calculated the present value

for those ARP ending account balances as of the Conversion Date using an

interest rate of eight percent, which the Guenther Plaintiffs claimed was

unreasonably high, and thus, perpetually undervalued the Sohio Legacy

Employees’ accrued benefits as reflected in their RAP account balances. 2

The complaint also alleged that BP misrepresented to Sohio Legacy

Employees that their benefits under the RAP would be “as good or better”

1

Plaintiff-Appellee Les Owen was eventually added as a third named plaintiff.

2

Additionally, the Guenther Plaintiffs alleged that BP retroactively dated the

opening account balances of the RAP for the Sohio Legacy Employees such that the

employees forfeited benefits that they had already accrued under the ARP.

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than those that they had received under the ARP. Accordingly, the Guenther

Plaintiffs sought reformation of the RAP so that those Sohio Legacy

Employees whose retirement benefits were negatively affected would be in as

good a financial position as they would have been had they remained

members of the ARP.

After the Guenther Plaintiffs amended their complaint (while

maintaining the core of their allegations, claims, and the relief they sought in

their original complaint), BP moved to dismiss. On March 13, 2019, the

district court granted BP’s motion in part, dismissing all but one count: the

count seeking reformation of the RAP; however, the court ordered the

Guenther Plaintiffs to replead that count “in a manner that specifically states

a recognized cause of action.” On April 5, 2019, the Guenther Plaintiffs filed

a second amended complaint with a single count claiming that BP breached

its fiduciary duties relating to the Conversion in violation of ERISA § 404(a).

The complaint seeks “all equitable relief to redress [BP’s] breach of fiduciary

duty, including reformation” under § 502(a)(3) of ERISA. Alternatively, the

Guenther Plaintiffs assert that they are entitled to the remedies of surcharge

or equitable estoppel as well as “all equitable relief to redress [BP’s] breach

of fiduciary duty.”

Following over a year of extensive discovery, the Guenther Plaintiffs

moved to certify their class under both Rules 23(b)(2) and (3) of the Federal

Rules of Civil Procedure; this motion was subsequently referred by the

district court to a magistrate judge. BP opposed the motion and moved for

summary judgment. On March 12, 2021, the magistrate judge issued a

recommendation that both a general class and subclass should be certified

under Rule 23(b)(2) but declined to make a recommendation as to either the

general class’s or subclass’s viability under Rule 23(b)(3). The magistrate

judge recommended that the general class should consist of:

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All persons under age 50 as of January 1, 1989 who were active

participants in the [RAP] as of January 1, 1989, and whose

retirement benefit under the [ARP] exceeds the retirement

benefit offered (or that will be offered) by the [RAP], as

amended on the benefit commencement date, and the

beneficiaries and estates of such persons and alternate payees

under a Qualified Domestic Relations Order.

He also recommended that the subclass should consist of all members of the

general class who “signed a release upon separation of employment.”

B. The Press Action

Meanwhile, on September 14, 2020, over four years after the Guenther

Plaintiffs filed their original complaint, Movant-Appellant Michael Press,

along with 276 other individuals (the “Press Plaintiffs”), filed a two-count

complaint in the United States District Court for the Northern District of

Ohio against BP America and its parent company BP p.l.c., the successor in

interest to British Petroleum (the “Press Action”). The Press Plaintiffs, all of

whom are Sohio Legacy Employees, similarly claimed that BP America had

breached its fiduciary duties regarding its disclosures concerning the

Conversion in violation of § 404(a). The Press Plaintiffs also sought equitable

relief under § 502(a)(3) through either reformation of the RAP, surcharge, or

equitable estoppel. In its second count, the complaint alleges that BP p.l.c.

“knowingly participated” in BP America’s alleged breach of fiduciary duty

and was consequently unjustly enriched. Accordingly, the Press Plaintiffs

sought “restitution and/or disgorgement of profits in the amount of [BP

p.l.c.’s] unjust enrichment.”

BP America subsequently moved to transfer the Press Action to the

Southern District of Texas or alternatively stay that suit pending the

resolution of the Guenther Action. On December 23, 2020, the district court

granted BP America’s motion and ordered that the Press Action be

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transferred to the Southern District of Texas under the first-to-file rule, 3

reasoning that the parties and claims in both cases were “nearly identical”

and noting the relatively advanced stage of the litigation in the Guenther

Action. The Press Action was then stayed upon its transfer to the Texas

district court pending resolution of the class certification motion in the

Guenther Action.

C. The Press Plaintiffs move to intervene

On March 26, 2021, after the magistrate judge had issued his

recommendation for class certification, the Press Plaintiffs moved to

intervene in the Guenther Action “for the purpose of objecting” to the

magistrate judge’s recommendation. In their motion, the Press Plaintiffs

contended that they were entitled to intervene as of right but that the court

should allow for permissive intervention if it found the former theory

unpersuasive. On March 31, 2021, the district court adopted the magistrate

judge’s recommendation in its entirety without addressing the Press

Plaintiffs’ pending motion. The Press Plaintiffs filed their reply brief on their

motion after the district court had adopted the magistrate judge’s

recommendation. Acknowledging this development, the Press Plaintiffs now

sought to intervene so that they could opt out of the newly certified class, or

alternatively, enter the Guenther Action as named plaintiffs.

3

See Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 603 (5th Cir. 1999)

(“Under the first-to-file rule, when related cases are pending before two federal courts, the

court in which the case was last filed may refuse to hear it if the issues raised by the cases

substantially overlap.”). The Ohio district court relied on a similar Sixth Circuit precedent

in invoking this rule. See Baatz v. Columbia Gas Transmission, LLC, 814 F.3d 785, 789 (6th

Cir. 2016) (“The first-to-file rule is a prudential doctrine that grows out of the need to

manage overlapping litigation across multiple districts. Simply stated, it provides that,

when actions involving nearly identical parties and issues have been filed in two different

district courts, the court in which the first suit was filed should generally proceed to

judgment.” (internal quotations omitted)).

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On December 7, 2021, the district court denied the Press Plaintiffs’

motion to intervene. The court first addressed the motion concerning

intervention as of right, which is adjudicated using a four-factor test.

Assuming that the first three factors of this test had been met, the court

devoted its analysis to the fourth factor: whether the Press Plaintiffs’ interests

were adequately represented by the existing parties. The court determined

that both the Guenther and Press Plaintiffs had the same ultimate objective—

“to remedy a pension shortfall allegedly caused by breaches of fiduciary duty

and violations of [ERISA]”—and thus, there was a presumption of adequate

representation. Accordingly, the court denied the motion to the extent the

Press Plaintiffs sought to intervene as of right. Turning next to the request for

permissive intervention, the court concluded that allowing the Press Plaintiffs

to intervene would unduly delay the resolution of the Guenther Action and

that the action’s certified class would adequately represent their interests.

Consequently, the court denied the remaining portion of the motion as well.

On appeal, the Press Plaintiffs 4 only challenge the district court’s

decision to deny their intervention as of right. The Press Plaintiffs contend

that the certified class in the Guenther Action inadequately represents their

interests, and therefore, they have a right to intervene in this case.

II.

A movant is entitled to intervene as of right if she “claims an interest

relating to the property or transaction that is the subject of the action, and is

so situated that disposing of the action may as a practical matter impair or

impede the movant’s ability to protect its interest, unless existing parties

4

The Press Plaintiffs addressed the court below collectively, but the case caption

states that Michael Press is the only appellant. We refer to Appellant, however, as the Press

Plaintiffs in recognition that the underlying motion belonged to the Press Plaintiffs, and

Appellant appears to be making arguments on their behalf.

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adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). This circuit

utilizes a four-factor test to determine if Rule 24(a)(2)’s requirements have

been met:

(1) the application for intervention must be timely; (2) the

applicant must have an interest relating to the property or

transaction which is the subject of the action; (3) the applicant

must be so situated that the disposition of the action may, as a

practical matter, impair or impede his ability to protect that

interest; [and] (4) the applicant’s interest must be inadequately

represented by the existing parties to the suit.

Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015) (quoting New Orleans

Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir. 1984)).

A movant must show that she satisfies each factor of the above test to be

entitled to intervene. Id.

We review a ruling denying intervention as of right de novo. Edwards

v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996). “Although the movant

bears the burden of establishing its right to intervene, Rule 24 is to be liberally

construed.” Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir. 2014). “At this

stage, the court takes the movant’s factual allegations as true.” La Union del

Pueblo Entero v. Abbott, 29 F.4th 299, 305 (5th Cir. 2022).

To demonstrate inadequate representation under Rule 24(a)(2), a

movant’s burden is likewise “minimal.” Brumfield, 749 F.3d at 345.

Consequently, a movant must only show that the existing representation

“may be inadequate”; this showing need not amount to a certainty. La Union

del Pueblo Entero, 29 F.4th at 307–08. Nevertheless, a movant must overcome

two presumptions so that this requirement “ha[s] some teeth.” Brumfield,

749 F.3d at 345. The first only arises if “one party is a representative of the

absentee by law”—which is inapplicable to this case. Id. The second “arises

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when the would-be intervenor has the same ultimate objective as a party to

the lawsuit.” Id. (quoting Edwards, 78 F.3d at 1005). To overcome this

presumption, the movant must establish “adversity of interest, collusion, or

nonfeasance on the part of the existing party.” Id.

“In order to show adversity of interest, an intervenor must

demonstrate that its interests diverge from the putative representative’s

interests in a manner germane to the case.” Texas, 805 F.3d at 662.

Differences of opinion regarding an existing party’s litigation strategy or

tactics used in pursuit thereof, without more, do not rise to an adversity of

interest. Lamar v. Lynaugh, 12 F.3d 1099, 1099 n.4 (5th Cir. 1993) (per

curiam); accord SEC v. LBRY, Inc., 26 F.4th 96, 99–100 (1st Cir. 2022) (“A

proposed intervenor’s desire to present an additional argument or a variation

on an argument does not establish inadequate representation.”); United

States v. City of New York, 198 F.3d 360, 367 (2d Cir. 1999); United States v.

Territory of Virgin Islands, 748 F.3d 514, 522 (3d Cir. 2014); Bradley v.

Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987); Jenkins by Jenkins v. Missouri,

78 F.3d 1270, 1275 (8th Cir. 1996) (“A difference of opinion concerning

litigation strategy or individual aspects of a remedy does not overcome the

presumption of adequate representation.”); Perry v. Proposition 8 Off.

Proponents, 587 F.3d 947, 954–55 (9th Cir. 2009); Jones v. Prince George’s

Cnty., Md., 348 F.3d 1014, 1020–21 (D.C. Cir. 2003); see, e.g., Ruiz v. Collins,

981 F.2d 1256 (5th Cir. 1992) (per curiam) (failure of class counsel to make

“all the arguments” as would-be intervenor insufficient for intervention as

of right); Bush v. Viterna, 740 F.2d 350, 358 (5th Cir. 1984) (“the mere

possibility that a party may at some future time enter into a settlement cannot

alone show inadequate representation”); cf. Entergy Gulf States La., L.L.C.

v. U.S. EPA, 817 F.3d 198, 204 (5th Cir. 2016) (“Entergy does not seem to

dispute that Sierra Club and EPA have divergent interests. Rather, Entergy

contends that the matters of stay and bifurcation concern mere litigation

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tactics that are within the district court’s broad discretion to regulate and do

not warrant intervention.”).

In denying the Press Plaintiffs’ motion to intervene as of right, the

district court held that the Press Plaintiffs failed to overcome the presumption

that they shared the same ultimate objective with the Guenther Plaintiffs. On

appeal, the Press Plaintiffs dispute that holding, arguing that their interests

are considerably distinct from those of the Guenther Plaintiffs, pointing to a

slew of negligible or spurious differences between the two actions. We will

address each of those in turn.

The Press Plaintiffs contend that part of the pension shortfall theory

underlying their claims is absent from the Guenther Action. According to the

Press Plaintiffs, the Guenther Action assumes that Sohio Legacy Employees’

RAP opening account balances were correct as of the Conversion Date, while

the Press Action alleges that those opening balances were insufficient when

compared to the ARP’s ending account balances. The Press Plaintiffs also

argue that the Guenther Action only seeks the sole remedy of reformation,

while the Press Action seeks the remedies of surcharge, disgorgement, and

restitution in addition to reformation. The Press Plaintiffs, however, largely

misconstrue the nature of the Guenther Action.

Whether the operative complaint in the Guenther Action includes the

relevant portion of the pension shortfall theory is a function of litigation

strategy—it does not reflect the scope of the Guenther Plaintiffs’ interests.

Similar factual allegations underpin the claims in both actions. Both groups

of plaintiffs allege the same primary harm—that the respective defendants

made insufficient disclosures regarding the Conversion—based on violations

of the same provision in ERISA. Most importantly, both the Guenther and

Press Plaintiffs share the same ultimate objective: they all seek for their

retirement plans to be made whole due to these alleged inaccurate

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disclosures. It is unnecessary for a complaint to allege every fact or theory

that is conceivably relevant so that a plaintiff may ultimately obtain relief. A

complaint opens the door to litigation; it is not the final word on the matter.

Plaintiffs are given many opportunities to amend their pleadings throughout

the course of an action, including stages later than where the Guenther Action

currently stands. 5 “If disagreement with an existing party over trial strategy

qualified as inadequate representation, the requirement of Rule 24 would

have no meaning.” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171,

181 (2d Cir. 2001).

The first two complaints in the Guenther Action specifically alleged

the pension shortfall theory. 6 Although that theory is absent from the

Guenther Plaintiffs’ second amended complaint, this is not conclusive

5

See Fed. R. Civ. P. 15(b)(1) (“If, at trial, a party objects that evidence is not

within the issues raised in the pleadings, the court may permit the pleadings to be amended.

The court should freely permit an amendment when doing so will aid in presenting the

merits and the objecting party fails to satisfy the court that the evidence would prejudice

that party’s action or defense on the merits.”); id. 15(b)(2) (“When an issue not raised by

the pleadings is tried by the parties’ express or implied consent, it must be treated in all

respects as if raised in the pleadings. A party may move—at any time, even after

judgment—to amend the pleadings to conform them to the evidence and to raise an

unpleaded issue. But failure to amend does not affect the result of the trial of that issue.”).

6

For example, the original complaint in the Guenther Action states:

In establishing the Opening Accounts as of January 1, 1989, the BP Plan

used an interest rate of 8 percent to calculate the present value of the

benefits that had accrued under the original Sohio Plan. That interest rate

exceeded the maximum interest rate permitted under ERISA and the

Internal Revenue Code for determining lump sum present values.

Similarly, the first amended complaint in the Guenther Action reads:

During the cash balance conversion, the RAP reduced the accrued benefits

that participants had already earned in the BP ARP by calculating the

present value of the accrued benefit as though the formula change had been

made before January 1, 1989. Consequently, the Opening Account balance

reduced participants’ accrued benefits.

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evidence that it has necessarily been abandoned. Rather, they may choose to

pursue the theory if this case proceeds to trial. Ultimately, though, this is just

one of many strategies that the Guenther Plaintiffs may employ in an effort to

prove that BP breached its fiduciary duties. The Press Plaintiffs cannot point

to an interest of theirs that is unique to and—at a minimum—potentially in

conflict with those of the Guenther Plaintiffs. The absence of the relevant

portion of the pension shortfall theory from the Guenther Plaintiffs’ operative

complaint, on its own, cannot amount to one.

The remainder of the Press Plaintiffs’ arguments are also unavailing,

all for the same reason: they lack a distinct interest that is at risk of being

adversely represented in the Guenther Action. First, the Press Plaintiffs assert

that they seek remedies in their action that are distinct from those that are

sought in the Guenther Action. They contend that the Guenther Plaintiffs only

request reformation of the RAP, while the Press Plaintiffs also seek surcharge,

disgorgement, and restitution. But in their operative complaint, the Guenther

Plaintiffs specifically state that they are entitled to surcharge (as an

alternative remedy) in addition to the catchall “all equitable relief to redress

[BP’s] breach of fiduciary duty,” which according to the complaint,

“include[es] reformation of the [RAP].” Restitution and disgorgement may

be enforced to the extent that they are equitable remedies under § 502(a)(3).

See Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002)

(“‘equitable relief’ in § 502(a)(3) must refer to ‘those categories of relief that

were typically available in equity’” (quoting Mertens v. Hewitt Assocs., 508

U.S. 248, 256 (1993))); id. at 218 (“Congress’s choice to limit the relief under

§ 502(a)(3) to ‘equitable relief’ requires us to recognize the difference

between legal and equitable forms of restitution.”); Liu v. SEC, 140 S. Ct.

1936, 1943 (2020) (describing disgorgement as sitting “squarely within the

heartland of equity”). Therefore, those remedies are necessarily subsumed

within “all equitable relief” that is sought by the Guenther Plaintiffs.

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The Press Plaintiffs counter that the district court certified the

Guenther Action “on the basis that it seeks reformation only.” In his

recommendation, the magistrate judge reasoned that the class should be

certified under Rule 23(b)(2), in part, because the Guenther Plaintiffs seek

declaratory relief. He subsequently noted that reformation is a “form of

declaratory relief in a similar context.” Nowhere in his recommendation (or

in the district court’s order adopting the recommendation) is there any

language precluding the Guenther Plaintiffs from maintaining their alternate

pleadings. Nor do the Press Plaintiffs cite any authority that such a limitation

should be presumed. Consequently, the premise of the Press Plaintiffs’

argument is meritless. 7

Second, the Press Plaintiffs argue that they “might” be inadequately

represented in the Guenther Action because, unlike in the Press Action, the

Guenther Plaintiffs have not brought a claim against BP p.l.c. According to

the Press Plaintiffs, the Guenther Action will likewise not address this claim

or its attendant allegations. But the Press Plaintiffs cannot explain why the

inclusion of BP p.l.c. would be uniquely beneficial or detrimental to them.

The Press Action alleges that BP p.l.c. “knowingly participated” in BP

America’s breach of its fiduciary duties by “directing, approving, or

otherwise assisting in” BP America’s breach. The Press Plaintiffs’ theory of

liability for BP p.l.c. is thus predicated on the same facts underlying its breach

7

The Press Plaintiffs also assert that their action is different because their complaint

alleges that BP America made misrepresentations in connection with an investigation it

commissioned from 2011 through 2014—an allegation that they argue is absent from the

Guenther Action. But for the reasons explained above, the choice to include this allegation

is merely another strategic decision and not germane to the case. Furthermore, the rights

of both the Guenther and Press Plaintiffs would be equally implicated based on this

allegation. The facts surrounding those allegations are equally applicable to both groups of

Plaintiffs. And the Press Plaintiffs do not seek a remedy unique to this allegation that would

only be applicable to their interests and not those of the Guenther Plaintiffs.

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of fiduciary duty claim against BP America—there is no independent theory

of liability against BP p.l.c. Furthermore, the remedy sought by both the

Guenther and Press Plaintiffs is identical, with or without BP p.l.c. as a party:

to be made whole from the same alleged breach of fiduciary duty. Therefore,

the Guenther Plaintiffs’ decision to exclude BP p.l.c. from their action

amounts to no more than a strategic decision as well.

Third, the Press Plaintiffs contend that our decision in La Union del

Pueblo Entero, 29 F.4th 299, earlier this year supports intervention in this

case. In La Union del Pueblo Entero, the United States and multiple groups of

private plaintiffs sued to enjoin the State of Texas, along with state and local

officials, from enforcing a new election law passed by the Texas Legislature.

29 F.4th at 304. Shortly thereafter, several committees associated with the

Republican Party moved to intervene under Rule 24(a)(2), but their motion

was denied. Id. On appeal, we reversed the district court’s decision and

allowed the committees to intervene as of right, even though they shared the

same ultimate objective with the governmental defendants—upholding the

election law. Id. at 308–09. We reasoned that because “there [were] reasons

to believe the Committees’ interests [were] less broad than those of the

governmental defendants,” this could lead to “divergent results.” Id. at 308.

Specifically, the governmental defendants preferred not to resolve the case

on the merits, planning instead to move for dismissal based on sovereign

immunity and standing arguments. Id. The committees, however, were

mainly interested in the “finality and certainty” that would come with a

decision on the statute’s constitutionality. Id. at 308–09. Unlike the

governmental defendants, the committees “rel[ied] on the expenditure of

their resources to equip and educate their members, along with relying on the

rights of the Committees’ members and volunteers who participate in the

election,” all of which was implicated by the statute at issue. Id. at 309.

Because these private economic interests were distinct from the public

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interests held by the governmental defendants, we determined that

“[n]either the State nor its officials [could] vindicate [the committees’]

interest while acting in good faith.” Id.

La Union del Pueblo Entero exposes the gaps in the Press Plaintiffs’

argument. There, the intervenors demonstrated that their interests were

narrower than and distinct from those of the governmental defendants.

Although both the governmental defendants and the intervenors sought to

defend the statute, the intervenors were able to show that their interests

might be put at greater risk under the governmental defendants’ preferred

defense strategy alone. Here, the Press Plaintiffs have failed to articulate how

their interests are distinct from those of the Guenther Plaintiffs. Accordingly,

the Press Plaintiffs cannot demonstrate how the Guenther Plaintiffs’ chosen

defense strategy is uniquely favorable to their own interests while placing

those of the Press Plaintiffs in jeopardy.

Fourth, the Press Plaintiffs argue that denying them intervention as of

right deprives them of their right to due process. According to the Press

Plaintiffs, they are at great risk of having their interests overlooked because

they can neither intervene in nor opt out of the Guenther Action. See Fed.

R. Civ. P. 23(c)(3) (only providing opt-out rights for members of a class

certified under Rule 23(b)(3)). The Press Plaintiffs contend that the outcome

of the Guenther Action may have a broad preclusive effect on any future

collateral attack. Indeed, we have stated that “[t]he concept of intervention

within a class certified under [Rule 23(b)(2)] balances the more likely

impairment of the individual’s interest since he is unable to opt out of this

class. Also, by allowing intervention, subsequent collateral attacks on the due

process preclusive effect of a judgment are avoided.” Woolen v. Surtran

Taxicabs, Inc., 684 F.2d 324, 332 (5th Cir. 1982). Woolen recognized the

increased utility of intervention in a class without opt-out rights where the

would-be intervenor risked having her interests ignored. Here, because the

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Press Plaintiffs cannot identify a unique interest of their own, they are unable

to specify how a determination in the Guenther Action could have a future

detrimental preclusive effect.

III.

The Press Plaintiffs cannot demonstrate that their interests diverge

from those of the Guenther Plaintiffs in any meaningful way. We are thus

satisfied that the Press Plaintiffs will be adequately represented despite their

absence from the Guenther Action. Therefore, for the foregoing reasons, we

AFFIRM.

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