United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER, SENIOR JUDGE.
class action involving alleged violations of the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C.
§ 227, Patrick Maupin (“Maupin”) moves
pro se to intervene as of right under Fed.R.Civ.P.
24(a)(2), or, alternatively, to intervene permissively under
Rule 24(b)(1)(B). Plaintiff Thomas Buchanan
(“Buchanan”) and defendant Sirius XM Radio, Inc.
(“Sirius XM”), who have entered into a settlement
that has received preliminary court approval, oppose the
motion. For the reasons that follow, the court denies
Maupin's motion to intervene.
March 2017 Buchanan filed a class action complaint against
Sirius XM, alleging that it had violated the TCPA by placing
telemarketing calls to individuals who had registered either
with the National Do Not Call (“DNC”) Registry or
Sirius XM's internal DNC list. Sirius XM raised as a
defense the “established business relationship”
(“EBR”) exception to the TCPA. The EBR exception
permits businesses to call members of the National DNC
Registry with whom they have an existing business
relationship. In April 2019-before the merits of the EBR
defense was litigated-the parties reached a settlement
pending final court approval.
6, 2019 the court granted preliminary approval of the
settlement and certified a settlement class. The settlement
defines the class as members of the National DNC Registry or
Sirius XM's internal DNC list who received more than one
call from Sirius XM in a 12-month period between October 16,
2013 and April 26, 2019. If the settlement is given final
approval, class members will be entitled to a pro rata
distribution of a settlement fund of $25 million or three
free months of Sirius XM subscription services. Sirius XM
also agreed to alter some of its telemarketing practices,
including providing notice to trial subscribers of how to opt
out of further communications with the company. In his motion
for preliminary settlement approval and class certification,
Buchanan agreed that this change in business practices would
bolster Sirius XM's EBR defense to a TCPA claim. But the
settlement agreement does not explicitly require Sirius XM to
refrain from contacting members of the National DNC Registry.
May 2019 Maupin discovered that he was a member of the class.
Maupin alleges that on March 25, 2019 and March 27, 2019 he
received two calls from Sirius XM soliciting
subscriptions. He avers that, at the time of the calls,
he was a member of the National DNC Registry. He also
maintains that, despite having paid for Sirius XM services in
the past, he has had no recent voluntary communication with
Sirius XM that would, in his view, place the calls within the
EBR exception. Following the second call, Maupin sent a claim
for damages to Sirius XM's counsel, but the parties were
unable to resolve his claim.
the parties' negotiations, Maupin reviewed the proposed
class settlement. He maintains that the proposed settlement
does not adequately protect his interests because the
settlement cost is insufficient to deter Sirius XM from
future violations of the TCPA. He also avers that the
settlement provides ways for Sirius XM to establish an EBR
without requiring Sirius XM to scrub against the National DNC
Registry or otherwise prohibiting Sirius XM from contacting
members of the National DNC Registry. Despite acknowledging
class counsel's statement that the EBR issue is a risk to
litigate, Maupin posits that the EBR issue should be
litigated, and he intends to ensure that a ruling is made on
this issue if he is permitted to intervene.
court turns first to Maupin's motion to intervene as of
is entitled to intervene as of right under Rule 24(a)(2) if
(1) the motion to intervene is timely, (2) the interest
asserted by the potential intervenor is related to the
action, (3) the interest may be impaired or impeded by the
action, and (4) the interest is not adequately represented by
the existing parties. See, e.g., In re Oil Antitrust
Litig., 570 F.3d 244, 247 (5th Cir. 2009); Sierra
Club v. Espy, 18 F.3d 1202, 1204-05 (5th Cir. 1994)
(citing New Orleans Pub. Serv., Inc. v. United Gas Pipe
Line Co., 732 F.2d 452, 463 (5th Cir. 1984) (en banc)
(“NOPSI”)). “Failure to satisfy
any one requirement precludes intervention of right.”
Haspel & Davis Milling & Planting Co. v. Bd. Of
Levee Comm'rs, 493 F.3d 579, 578 (5th Cir. 2007).
court will assume arguendo that Maupin is a member
of the class and that he has satisfied the first two elements
of intervention as of right-timeliness and an interest
related to the action-and will therefore focus its analysis
on the remaining two elements-impairment and inadequate
court turns first to the impairment prong.
impairment prong requires the movant to demonstrate that he
has a “legally protectable interest” related to
the action and that denial of intervention “may, as a
practical matter, impair or impede the movant's ability
to protect that interest.” Brumfield v. Dodd,
749 F.3d 339, 343, 344 (5th Cir. 2014) (quoting 6 James
Moore, et al., Moore's Federal Practice §
24.03[a], at 24-41 (3d ed. 2008)) (citing Espy,
18 F.3d at 1207). Although the impairment requirement
“does not demand that the movant be bound by a possible
future judgment, ” the impairment must be
“‘practical' . . . and not merely
‘theoretical.'” Id. (quoting 6
Moore, supra, § 24.03[a], at 24-42).
alleges two interests that may be impaired if he is not
permitted to intervene. He asserts an interest in ensuring
that the cost of the settlement is sufficiently high to deter
Sirius XM from future violations of the TCPA. And he asserts
that he and other class members are entitled to a ruling on
the question whether Sirius XM had an EBR with class members
at the time the calls were made. Relying on Smith v.
SEECO, Inc., 865 F.3d 1021, 1024-25 (8th Cir. 2017),