McClintic v. Lithia Motors, Inc.

Filing 14

PROPOSED MOTION to Intervene by Intervenor Plaintiff Dan McLaren. (Attachments: # 1 Ex A - complaint in intervention, # 2 Ex B - Edelson declaration, # 3 Proposed Order) Noting Date 8/12/2011, (Cantor, Clifford)

The Honorable Richard A. Jones

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8
9

KEVIN McCLINTIC, on behalf of himself
and all others similarly situated,

10
11
12
13
14

Plaintiff,
— and —
DAN McLAREN, individually and on behalf
of a class and subclass of similarly situated
individuals,

17
18

PROPOSED PLAINTIFF-INVERVENOR
DAN McLAREN’S MOTION TO
INTERVENE

NOTE ON MOTION CALENDAR:
Friday, August 12, 2011

Plaintiff-Intervenor,

15
16

No. C11-859 RAJ

v.
LITHIA MOTORS, INC.
Defendant.

19
20
21
22
23
24
25
26
27
L AW O FFICES OF

MOTION TO INTERVENE
No. C11-859 RAJ

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

1

Proposed plaintiff-intervenor Dan McLaren (“McLaren”), pursuant to Rules 24(a) and

2 24(b) of the Federal Rules of Civil Procedure, hereby moves for leave to intervene as a party3 plaintiff in order to protect his own interests, as well as the interests of the class and subclass that
4 he seeks to represent in order to redress violations of the Telephone Consumer Protection Act, 47
5 U.S.C. § 227 et seq. (“TCPA”).
6

I.

7

INTRODUCTION

McLaren moves to intervene in this action to protect his interests and those of a proposed

8 class and subclass that received unauthorized text messages from Defendant Lithia Motors. By
9 admission of his own counsel, Plaintiff Kevin McClintic (“McClintic”) cannot adequately
10 represent a subclass of individuals who received Lithia’s first text-message advertisement, then
11 affirmatively opted out of receiving Lithia text messages, and then subsequently received such
12 additional texts. Yet McClintic is nevertheless attempting to do so in a hastily arranged
13 settlement with Defendant Lithia Motors (“Defendant” or “Lithia Motors”). This raises serious
14 questions not only of McClintic’s representation of the proposed opt-out class, but also of the
15 larger proposed class of individuals who received text messages from Lithia Motors.
16

McLaren’s and McClinic’s cases arise from the same set of facts—alleged unauthorized

17 text messages sent by Lithia Motors in violation of the TCPA—but differ in one crucial aspect:
18 McLaren opted out1 of receiving further calls but continued to receive text-message
19 advertisements from Lithia Motors. This “Opt-Out Class” that McLaren seeks to represent has a
20 unique and factually stronger claim than McClintic, as Lithia Motors unquestionably did not have
21 consent to send text messages to members of the “Opt-Out Class” and appears to have acted in
22 knowing violation of the TCPA with respect to such “Opt-Out Class.” Yet McClintic’s counsel—
23
1

An “opt out” is an affirmative act by the recipient of a text message that communicates to
24 the sender that the recipient does not wish to receive further text messages from that sender. In
the text-message marketing industry, a recipient is able to opt out by replying using the word
25
“STOP” to the unwanted text message. This action by a recipient is an unequivocal statement that
26 he or she does not want to receive text messages from that sender; any subsequent messages sent
are unauthorized, and are also sent with the sender’s knowledge that the recipient had previously
27 opted out.
L AW O FFICES OF

MOTION TO INTERVENE
No. C11-859 RAJ

-1-

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

1 who filed this TCPA text-messaging suit by cutting and pasting one of McLaren’s counsel’s
2 previously filed complaints—is currently attempting to settle the opt-out claims despite conceding
3 that McClintic does not have standing to bring a claim for the Opt-Out Class.
4

Accordingly, McLaren should be permitted to intervene in this action as of right.

5 Alternatively, McLaren should be granted permissive intervention because he shares a similar
6 cause of action as McClintic, both cases are in their early stages, and McLaren’s counsel can
7 demonstrate that it has been on the forefront of litigating TCPA claims that involve unauthorized
8 text messages.
9

II.

10

FACTS AND PROCEDURAL HISTORY

This case arises from a marketing campaign conducted on behalf of Lithia Motors by

11 advertiser DMEautomotive, Inc. that involved the transmission of text message advertisements—
12 messages that both McClintic and McLaren contend in separate lawsuits were unauthorized and in
13 violation of the TCPA. On April 11, 2011, McLaren and McClintic both received an identical
14 unauthorized text-message advertisement sent on behalf of Lithia Motors. (McClintic Compl.,
15 Dkt. 12; Complaint-in-Intervention of Dan McLaren, a copy of which is attached as Ex. A, ¶¶ 1916 20.) Both seek to represent a class of individuals (the “Class”) who received one or more
17 unauthorized text messages from Lithia Motors. But this is where the similarities between
18 McLaren and McClintic end.
19

In response to this text message, McLaren affirmatively “opted out” of receiving further

20 messages by replying “STOP” to the offending message. (Ex. A, ¶ 21.) But one week later, on
21 April 19, 2011, Lithia Motors sent a second text message to McLaren informing him that Lithia
22 was “serious” about its previous text message and encouraging him to buy Lithia’s products.3
23 (Id., ¶¶ 22-23.) McClintic, on the other hand, never opted out of receiving messages and never
24 received the second text message on April 19, 2011.
25

2

References to “Dkt.” will refer to the docket in the case pending in this Court, unless
otherwise noted.
26
3
This message read: “WE ARE SERIOUS, 0% ON USED VEHICLES, SHOP LITHIA @
27 HTTP://BIT.LY/DS675E TO SEE FOR YOURSELF.”
L AW O FFICES OF

MOTION TO INTERVENE
No. C11-859 RAJ

-2-

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

1

This case, McClintic v. Lithia Motors, began in King County Superior Court on April 26,

2 2011, and was docketed as case No. 11-2-14632-4 SEA. (Dkt. 1., p. 6.) The law firm
3 representing McClintic—Williamson & Williams—filed a complaint that copied almost word-for4 word other text-message TCPA complaints filed by the attorneys who represent McLaren. (See,
5 e.g., Satterfield v. Simon & Schuster, 06-cv-02893-CW, Dkt. No. 99, (N.D. Cal.)). On May 23,
6 2011, Defendant Lithia Motors removed the case to this Court. (Dkt. 1.) On July 14, 2011, Lithia
7 Motors filed an answer to the complaint. (Dkt. 11.) On July 19, 2011, this Court issued an Order
8 to Show Cause as to why the McClintic action should not be dismissed for the parties’ violation of
9 this Court’s Scheduling Order. (Dkt. 12.)
10

Despite the total absence of activity on the public record, on July 21, 2011 the parties in

11 this case filed a response to the Order to Show Cause informing the Court that they had engaged
12 in one day of mediation with the Honorable Terrence Lukens (Ret.) on July 5, 2011, and that the
13 parties were continuing settlement negotiations. (Dkt. 13.) It is this secret and hurried settlement
14 involving unrepresentative persons that McLaren believes will impair the interests of the
15 proposed Class and Opt-Out Class that he seeks to protect.
16

The case McLaren v. Lithia Motors, Inc. was filed on July 5, 2011 in the federal court in

17 the District of Oregon and was docketed as 11-cv-810 MO. On the civil cover sheet, the McLaren
18 case was designated as “related” to the McClintic action. (See McLaren Dkt. 1-1.) The law firm
19 that represents McLaren, Edelson McGuire LLC, has prosecuted and favorably resolved
20 numerous TCPA cases that involve alleged unauthorized text messages4 and has successfully
21 argued in the Ninth Circuit that the TCPA applies to text messages—a case of first impression in
22 the federal appellate courts. See Satterfield v. Simon & Schuster, 569 F.3d 946 (9th Cir. 2009).
23 As stated above, McLaren contends that he not only received an unauthorized text message from
24
25

4

See, e.g., Satterfield v. Simon & Schuster, No. C 06 2893 CW (N.D. Cal.); Abbas v.
26 Selling Source, Inc., No 09-cv-3413 (N.D. Ill.); Weinstein v. Airit2me, Inc., No. 06 C 0484 (N.D.
Ill.); Lozano v. 20th Century Fox, No. 09-cv-06344 (N.D. Ill.); Espinal v. Burger King Corp., No.
27 09-cv-20982 (S.D. Fla.), Kramer v. Autobytel, Inc. et al., No. 10-cv-2722 (N.D. Cal.).
L AW O FFICES OF

MOTION TO INTERVENE
No. C11-859 RAJ

-3-

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

1 Lithia Motors on April 11, 2011, but also that he received an additional text message on April 19,
2 2011 after he had affirmatively opted out. (Ex. A, ¶¶ 19-23.)
3

On July 6, 2011, counsel for McLaren reached out to Williamson & Williams in an

4 attempt to coordinate their efforts in their respective lawsuits. (See Declaration of Jay Edelson
5 (“Edelson Decl.”), attached as Ex. B, ¶¶ 1-3.) During this phone call, Jay Edelson, managing
6 partner of Edelson McGuire LLC, informed the Williamson firm that McLaren seeks to represent
7 not only a class of persons who received an unauthorized text message from Lithia Motors, but
8 also an Opt-Out Class that received subsequent messages—messages that McClintic did not
9 receive. (Id., ¶ 6.) While conceding that McClintic did not have standing to bring suit for this
10 second text message because he never attempted to opt out, the Williamson firm nevertheless
11 stated to Edelson that they had just completed one day of mediation with Lithia Motors and were
12 discussing a class settlement that would resolve all of Lithia Motors’s text message spam,
13 including any text messages from Lithia Motors touting the “seriousness” of their previous
14 advertisements sent subsequent to consumer opt-outs. (Id., ¶¶ 5, 7.)
15

Mr. Edelson informed the Williamson firm that the claim for text messages following an

16 opt-out was different from McClintic’s claim because, among other things, the willfulness of any
17 message sent after an opt-out request would allow for a trebling of damages under the TCPA.
18 (Id., ¶ 6.) Despite this, the Williamson firm informed Mr. Edelson that it believed it had the
19 ability to settle these claims and intended to do so. (Id., ¶ 7.) Mr. Edelson suggested that
20 McLaren’s participation in the second round of mediations would ensure that the interests of the
21 proposed Opt-Out Class were adequately protected. (Id., ¶ 8.) Mr. Edelson also reached out to
22 Lane Powell, P.C., counsel for Lithia Motors, in order to discuss McLaren’s inclusion in the
23 ongoing settlement discussions.
24

Although the Williamson firm initially seemed receptive to counsel for McLaren’s offer to

25 represent the interests of the proposed Opt-Out Class, it appears that was simply part of a larger
26 plan to stall McLaren so they could race to the bottom and hastily reach a settlement. Indeed,
27 over the past two weeks the Williamson firm has been essentially incommunicado, and recent
L AW O FFICES OF

MOTION TO INTERVENE
No. C11-859 RAJ

-4-

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

1 court papers—filed only at the prompting of the Court—have stated that settlement talks were
2 ongoing. To date, the Williamson firm has failed to accept McLaren’s offer to participate and
3 appears to be moving forward with a settlement of the claims of the Class and Opt-Out Class.
4 (Dkt. 13.)
5

III.

ANALYSIS

6 A.

McLaren Should Be Permitted to Intervene as of Right

7

This Court should grant McLaren’s motion to intervene because McClintic’s attempts to

8 settle claims of the proposed Opt-Out Class that he cannot represent raises questions about his
9 adequacy as a class representative generally. A party can intervene in an action where a person
10 “claims an interest relating to the property or transaction that is the subject of the action, and is so
11 situated that disposing of the action may as a practical matter impair or impede the movant’s
12 ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R.
13 Civ. P. 24(a). Guided by practical and equitable considerations, courts traditionally construe Rule
14 24 liberally and in favor of applicants for intervention. Arakaki v. Cayetano, 324 F.3d 1078, 1083
15 (9th Cir. 2003) (“Rule 24 traditionally receives liberal construction in favor of applicants for
16 intervention”).
17

In the Ninth Circuit, intervention by right is required where the following four elements

18 are met: (1) the application must be timely; (2) the applicant must have a “significantly
19 protectable” interest relating to the transaction that is the subject of the litigation; (3) the applicant
20 must be so situated that the disposition of the action may, as a practical matter, impair or impede
21 the applicant’s ability to protect its interest; and (4) the applicant’s interest must be inadequately
22 represented by the parties before the court. League of United Latin Am. Citizens v. Wilson, 131
23 F.3d 1297, 1302 (9th Cir. 1997). In determining whether these requirements are satisfied the
24 court is to “accept as true the non-conclusory allegations of the motion and cross-complaint.”
25 Lake Investors Dev. Group v. Egidi Dev. Group, 715 F.2d 1256, 1258 (7th Cir. 1983). A motion
26 to intervene as of right should not be refused “unless it appears to a certainty that the intervenor is
27 not entitled to relief under any set of facts which could be proved under the complaint. Crosby v.
L AW O FFICES OF

MOTION TO INTERVENE
No. C11-859 RAJ

-5-

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

1 St. Paul Fire & Marine Ins. Co., 138 F.R.D. 570, 572 (W.D. Wash. 1991), aff’d, 15 F.3d 1084
2 (9th Cir. 1994). In this case, each element of Rule 24(a) is satisfied.
3

1.

McLaren’s Motion to Intervene is Timely

4

The first element of Rule 24(a)—timeliness—is easily met here. This Motion comes less

5 than two months after the McClintic case was removed to this Court, and the McClintic parties
6 have not conducted any discovery or filed any substantive documents except for an answer to the
7 complaint.5 McLaren diligently moved to intervene once he realized that his interests were
8 impaired, and moved to intervene only after first reaching out to the McClintic parties and
9 attempting to informally resolve the issue. (See Edelson Decl., ¶¶ 2-4.) Given the early stage of
10 litigation, there can be no prejudice to either party by granting intervention. See Crosby, 148
11 F.R.D. at 572 (finding intervention timely and no prejudice to other parties when intervenor filed
12 motion shortly after the commencement of the action and before any significant decisions on the
13 merits). Accordingly, McLaren’s motion is timely.
14

2.

McLaren Has a Protectable Interest

15

To satisfy the second element for intervention as of right, “[i]t is generally enough that the

16 interest is protectable under some law, and that there is a relationship between the legally
17 protected interest and the claims at issue.” Wilderness Soc. v. United States Forest Serv., 630
18 F.3d 1173, 1179 (9th Cir. 2011). McLaren possesses a significant protectable interest: He
19 received unauthorized text messages from Lithia Motors and would be entitled to recover
20 statutory damages under the TCPA on his own behalf and on behalf of the proposed Class and
21 Opt-Out Class he seeks to represent. McLaren’s complaint-in-intervention, attached to this
22 motion as Exhibit A, demonstrates this interest.
23
24
25
5

That McClintic and Lithia Motors have engaged in one round of mediation to settle a
claim for which McClintic lacks standing underscores the necessity of McLaren’s immediate
27 intervention.
26

L AW O FFICES OF

MOTION TO INTERVENE
No. C11-859 RAJ

-6-

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

1

3.

McLaren’s Interest, as a Practical Matter, Is Being Impaired By McClintic

2

Satisfying the third element for intervention as of right, McLaren and the proposed Class

3 and Out-Out Class he seeks to represent would be impaired by a judicial decision approving a
4 settlement in this case because McLaren could no longer seek class certification and damages for
5 the Class and Opt-Out Class that are encompassed in a settlement. “A judicial decision which as
6 a practical matter would foreclose the would-be intervenor’s interest is sufficient impairment.”
7 Silver v. Babbitt, 166 F.R.D. 418, 429 (D. Ariz. 1994), aff’d, 68 F.3d 481 (9th Cir. 1995); see also
8 Wright Miller, 7C FED. PRAC. & PROC. CIV. § 1908.2 (3d ed. 2011) (“[i]t generally is agreed that
9 in determining whether disposition of the action will impede or impair the movant’s ability to
10 protect its interest the question must be put in practical terms rather than in legal terms”).
11

Here, McClintic’s counsel has already communicated to counsel for McLaren that they

12 intend to settle all claims involving unauthorized Lithia text messages, including messages sent
13 after consumers opted out. (Edelson Decl. ¶ 6.) Because McClintic is unable to represent an Out14 Out Class, that class cannot effectively bargain to receive the statutory damages that they are
15 entitled to, which will likely be higher than that of the larger class due to a clear lack of consent as
16 well as evidence of willfulness. As a practical matter, all absent Opt-Out Class members would
17 lose the right to effectively bargain for increased damages unless each one of them opted-out of
18 whatever settlement is eventually reached in the McClintic action. Also, McLaren would be
19 unable to represent either class in subsequent litigation if those claims are resolved in a prior
20 settlement.
21

4.

McClintic Cannot Adequately Represent Either Proposed Class

22

The fourth element examines “whether existing parties’ interests are such that they will

23 make all of the arguments the applicants would make.” United States v. Oregon, 839 F.2d 635,
24 638 (9th Cir. 1988). The burden of showing inadequate representation is minimal, and is satisfied
25 if the proposed intervenor can demonstrate that representation of his or her interests “may be”
26 inadequate. Arakaki, 324 F.3d at 1086; see also Sec. & Exch. Comm’n v. Dresser Indus., Inc.,
27 628 F.2d 1368, 1390 (D.C. Cir. 1980), cert. denied, 449 U.S. 993 (“an applicant to intervene need
L AW O FFICES OF

MOTION TO INTERVENE
No. C11-859 RAJ

-7-

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

1 only show that the representation of his interest may be inadequate; the burden of proof rests on
2 those resisting intervention”). In the context of class action lawsuits, inadequate representation is
3 present, and intervention proper, when existing class representatives cannot represent the claims
4 of all the purported class members. Hartman v. Duffy, 158 F.R.D. 525, 534 (D.D.C. 1994), aff’d
5 in part, remanded in part sub nom. Hartman v. Duffey, 88 F.3d 1232 (D.C. Cir. 1996).
6

a.

7

McClintic Cannot Adequately Represent the Opt-Out Class

McClintic cannot adequately represent the proposed Opt-Out Class for several reasons:

8 (1) his claims are factually distinct from those of the Opt-Out Class; (2) his claims are weaker
9 than those of the Opt-Out Class in that certain potential defenses are not available against the Opt10 Out Class; (3) his statutory damages will be different than those to which the Opt-Out Class
11 members may be entitled; and (4) Lithia Motors’s alleged conduct towards the Opt-Out Class vis12 à-vis the class McClintic could potentially represent is sufficiently different to defeat typicality.
13

As McClintic’s complaint demonstrates (Dkt. 1) and as his own counsel has conceded

14 (Edelson Decl. ¶ 6), McClintic did not attempt to opt out of receiving further messages and did
15 not receive a subsequent text message from Lithia Motors. As explained above, receiving this
16 second text message after opting out completely removes the defense of consent from Lithia
17 Motors’s arsenal and provides the recipient with a strong case for receiving treble damages under
18 47 U.S.C. § 227(b)(3)(C) of the TCPA.
19

The Williamson law firm understands the concept of the need for having an appropriate

20 plaintiff representing an opt-out class with different factual claims, as demonstrated in one if its
21 own recent “robo-dialer” settlements against Sprint Solutions, Inc.6 In that settlement there are
22 three classes that depend in part on whether the class member informed the defendant Sprint
23 Solutions that he or she did not wish to receive further calls. In Palmer v. Sprint Solutions, the
24 plaintiff attempted to “opt out” of receiving further calls but still received messages, giving her
25 the ability to represent such a subclass. (See Palmer v. Sprint Solutions, No. 09-cv-1211 (JLR),
26

6

The settlement website for the case Palmer v. Sprint Solutions, Inc., No. 09-cv-1211
27 (JLR), can be found at www.palmersolicitationcallsettlement.com.
L AW O FFICES OF

MOTION TO INTERVENE
No. C11-859 RAJ

-8-

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

1 Proposed Second Amended Complaint, Dkt. 31-2) (demonstrating that the plaintiff in Palmer
2 requested that she stop receiving calls)). Strangely, the class members in Palmer who received
3 subsequent contacts after informing Sprint that they did not want to be contacted again are
4 entitled to receive no more compensation than the main class, suggesting that representation by
5 the Williamson firm of the opt-out classes in that case is inadequate as well.
6

Because of the factual differences between McClintic’s and McLaren’s claims, and also

7 because of the Defendant’s differing conduct towards them, McClintic would be unable to
8 represent and adequately bargain on behalf of a proposed Opt-Out Class of consumers who
9 received the April 19, 2011 subsequent text message from Lithia Motors, while McLaren could
10 do so. See Smith v. University of Washington Law School, 2 F. Supp. 2d. 1324, 1342 (W.D.
11 Wash. 1998) (“typicality turns on the Defendant’s actions towards the plaintiff class”) (internal
12 quotations omitted). Lithia Motors, by enabling a system whereby opt-out requests were
13 dishonored and met with additional text messages, acted in a different way towards McLaren and
14 the other subclass members he seeks to represent. McClintic’s claims are not typical of those of
15 the Opt-Out Class. Not only is it possible that McClintic cannot adequately represent the interests
16 of the Opt-Out Class—it is likely.
17
18

b.

McClintic May Not Be Able to Adequately Represent the Larger Class

In addition to protecting the interests of the Opt-Out Class, McLaren should also be

19 allowed to intervene as of right to protect the interests of the larger proposed Class. All of the
20 issues discussed above regarding the proposed Opt-Out Class, and the hurried and secret nature of
21 the impending settlement, raise deeper issues about the conduct of both sides in this case, and
22 suggest that another class plaintiff, along with counsel, is necessary to protect the proposed Class
23 and Opt-Out Class.
24

McLaren has moved to intervene swiftly to protect his interests before any substantive

25 event occurs in the McClintic action and has satisfied the burden of showing that McClintic may
26 not adequately represent the interests he seeks to represent. Without McLaren’s intervention, his
27 ability to represent this subclass would be impaired by a hasty settlement that released opt-out
L AW O FFICES OF

MOTION TO INTERVENE
No. C11-859 RAJ

-9-

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

1 claims without class members being able to effectively bargain to receive the damages to which
2 they are entitled. Given the conduct of the parties, it would be beneficial for the members of both
3 proposed classes to have McLaren, along with his counsel Edelson McGuire LLC, involved in
4 any settlement that is reached. McLaren’s motion to intervene should be granted as of right under
5 Rule 24(a).
6 B.

In the Alternative, the Court Should Grant Permissive Intervention

7

A court may grant permissive intervention where: (1) the movant shows an independent

8 ground for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense and the
9 main action have a question of law or fact in common. Fed. R. Civ. P. 24(b); Greene v. United
10 States, 996 F.2d 973, 978 (9th Cir. 1993). A district court possesses broad discretion to grant or
11 deny permissive intervention. Smith v. Pangilinan, 651 F.2d 1320, 1325 (9th Cir. 1981).
12 Whether permissive intervention should be granted is a question of law regarding whether the
13 applicants’ claim or defense and the main action have a “common question of fact or law” and the
14 determination of such is liberally construed. Silver v. Babbitt, 166 F.R.D. 418, 433 (D. Ariz.
15 1994), aff’d, 68 F.3d 481 (9th Cir. 1995).
16

Even after finding these elements satisfied, a court may also consider other factors

17 including the nature and extent of the intervenor’s interest, whether the intervenor’s interests are
18 adequately represented by other parties, and whether the intervention will unduly delay or
19 prejudice the adjudication of the original parties’ rights. Perry v. Proposition 8 Official
20 Proponents, 587 F.3d 947, 955 (9th Cir. 2009).
21

As discussed above, McLaren’s motion to intervene is timely and, as demonstrated in his

22 Complaint-in-Intervention, he has independent federal jurisdiction under the Class Action
23 Fairness Act, 28 U.S.C. § 1332(d). (See Ex. A., ¶ 9.) The analysis conducted in Part III.A, above,
24 is equally relevant to the analysis here, and demonstrates that both McLaren and McClintic share
25 common questions of law and fact insofar as they both received the April 11, 2011 text message
26 (i.e., the first text message) from Lithia Motors that they allege violates the TCPA. Additionally,
27 adequacy of representation is also a consideration under Rule 24(b). As shown above, McClintic
L AW O FFICES OF

MOTION TO INTERVENE
No. C11-859 RAJ

- 10 -

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

1 cannot adequately represent the potential claims against Lithia Motors related to its text message
2 marketing campaign.
3

This case is particularly suited for permissive intervention under Rule 24(b) because of the

4 early stages of litigation that both cases are in, as well as the experience that McLaren’s attorneys
5 possess in prosecuting TCPA actions involving unauthorized text messages. Permitting McLaren
6 to intervene in this action would preserve judicial resources and serve the interests of all class
7 members.
8
9

IV.

CONCLUSION

Plaintiff-Intervenor Dan McLaren respectfully requests that this Court grant his motion to

10 intervene pursuant to Rule 24(a) and/or (b) of the Federal Rules of Civil Procedure, and grant
11 whatever other relief it deems reasonable and just.
12
Dated: July 26, 2011

Respectfully submitted,

13
LAW OFFICES OF CLIFFORD A. CANTOR, P.C.
By: s/ Cliff Cantor, WSBA # 17893
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone]
Fax: [phone]

14
15
16
17

Michael J. McMorrow
John C. Ochoa
EDELSON McGUIRE, LLC
350 North LaSalle, Ste. 1300
Chicago, Illinois 60654
Tel: [phone]
Fax: [phone]

18
19
20
21
22

Attorneys for Plaintiff-Intervenor Dan McLaren,
individually and on behalf of a class and subclass of
similarly situated individuals.

23
24
25
26
27

L AW O FFICES OF

MOTION TO INTERVENE
No. C11-859 RAJ

- 11 -

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]

1
Certificate of Service

2

I certify that I filed this motion, accompanying exhibits, and proposed order with the Clerk
3 of the Court using the CM/ECF system, which will email notification of filing to all counsel of
4 record. I also certify that I have provided notice of this motion as required by Fed. R. Civ. P.
24(c) on counsel of record for Plaintiff Kevin McClintic and Defendant Lithia Motors, Inc. using
5 the CM/ECF system.
s/ Cliff Cantor, WSBA # 17893

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

L AW O FFICES OF

MOTION TO INTERVENE
No. C11-859 RAJ

- 12 -

C LIFFORD A. C ANTOR , P.C.
627 208th Ave. SE
Sammamish, WA 98074-7033
Tel: [phone] ● Fax: [phone]