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Buchanan v. Sirius XM Radio Inc.

United States District Court, N.D. Texas, Dallas Division

August 28, 2019

THOMAS BUCHANAN, Plaintiff,
v.
SIRIUS XM RADIO, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER, SENIOR JUDGE.

         In this 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.

         I

         In 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.[1] In April 2019-before the merits of the EBR defense was litigated-the parties reached a settlement pending final court approval.

         On May 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.

         In late 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.[2] 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.[3]

         During 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.

         II

         The court turns first to Maupin's motion to intervene as of right.

         A

         A party 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).

         The 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 representation.

         B

         The court turns first to the impairment prong.

         The 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[3][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[3][a], at 24-42).

         Maupin 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), ...


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