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Technology Training Associates, Inc. v. Buccaneers Limited Partnership

United States Court of Appeals, Eleventh Circuit

October 26, 2017

TECHNOLOGY TRAINING ASSOCIATES, INC., LARRY E. SCHWANKE, D.C., Individually and as the representative of a class of similarly-situated persons, d.b.a. Back to Basics Family Chiropractic, Plaintiffs-Appellees,

         Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:16-cv-01622-AEP

          Before ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.

          ED CARNES, Chief Judge:

         In 2013 Cin-Q Automobiles, Inc., filed a complaint on behalf of a putative class, alleging that Buccaneers Limited Partnership was responsible for unsolicited faxes that violated the Telephone Consumer Protection Act, 47 U.S.C. § 227. The two sides litigated that case, which we will call the Cin-Q case, for three years, with Medical & Chiropractic Clinic, Inc., eventually joining as a second named plaintiff. In 2016 Technology Training Associates, Inc., and Larry E. Schwanke, D.C. (the plaintiffs in this case), filed a complaint on behalf of the same class based on the same allegedly unlawful acts by Buccaneers, and soon after doing so announced that they had reached a settlement with Buccaneers disposing of their claims in exchange for nearly $20 million in damages.

         After the announcement of that settlement, Cin-Q and Medical & Chiropractic Clinic - whom we will call "the movants" - moved to intervene in the current case. The district court denied that motion and preliminarily approved the plaintiffs' settlement agreement. The movants appeal from the denial of their motion to intervene.[1]


         In 2009 and 2010 Buccaneers, through a fax broadcaster, sent out three sets of faxes advertising tickets to see Tampa Bay Buccaneers football games. Cin-Q, which had received at least one of those faxes, brought suit on behalf of a putative class. It alleged that Buccaneers had sent unsolicited faxes to more than 180, 000 recipients and that the class was entitled to $500 per violation in statutory damages. After Medical & Chiropractic Clinic joined as a second named plaintiff and the parties conducted discovery, both sides filed cross-motions for summary judgment. The Cin-Q court denied those motions. The parties then entered into extended settlement negotiations. However, they were unable to come to an agreement, and in March 2016 the movants filed a motion for class certification in the Cin-Q case.

         The movants were represented by the law firm Anderson Wanca. While the class certification motion was pending, an attorney at that firm, David Oppenheim, left and joined another firm called Bock Hatch. There he took part in an email discussion with Phil Bock, a partner at Bock Hatch, about the Cin-Q case. Oppenheim told Bock that the movants' remaining counsel "want[ed] to set a record" by extracting more than $75 million in damages from Buccaneers. Bock responded that Oppenheim "could come forward with another class member and settle [the] case over the objections of [Anderson Wanca] and also over the objections of [Oppenheim's] former individual client." Bock opined that Oppenheim's "penultimate [sic] duty is to the class, not to the named plaintiff and certainly not to some greedy asshole who is not a class member and is just sitting in an office in [R]olling Meadows, " referring to the movants' remaining counsel. He went further, suggesting that Bock Hatch could "make it even more Machiavellian" by bringing Anderson Wanca's local counsel in on the potential separate class action that Bock was proposing. After that exchange, Bock sent an email to several other Bock Hatch lawyers that read: "Hmm. [Movants' counsel] holding out for a record settlement . . . . We could find a plaintiff and approach the defendant about settling? Lol."

         Sure enough, the plaintiffs, represented by Bock Hatch, filed a class action complaint in the current case about two months later. Two days after that they filed an unopposed motion for preliminary approval of class action settlement. In the motion the plaintiffs announced that they had reached a settlement with Buccaneers under which the class would receive up to $19.5 million in damages. The settlement agreement also provided that up to twenty-five percent of the total settlement amount could be awarded as attorney's fees, and the motion stated that class counsel would request incentive awards for the named plaintiffs. Because the plaintiffs filed this case outside the four year limitations period for TCPA claims, the settlement agreement also contained a waiver by Buccaneers of any statute of limitations defense.

         After the complaint and the motion for preliminary approval of the settlement were filed in this case, the Cin-Q court stayed consideration of the movants' class certification motion in that case. In the wake of those developments, the movants moved to intervene in this case under Federal Rule of Civil Procedure 24(a)(2), intervention as of right, and Rule 24(b)(2), permissive intervention. They contended that this case was an example of a "reverse auction, " in which a defendant picks out a plaintiff with weaker claims and weaker counsel in an effort to negotiate a more favorable settlement.

         The district court denied the movants' motion to intervene. It also preliminarily certified a class of all persons who received Buccaneers' commercial faxes between 2009 and 2010 (with some exceptions not relevant here) and preliminarily approved the plaintiffs and Buccaneers' settlement.


         "We review the denial of a motion to intervene [as] of right de novo. We review subsidiary findings of fact for clear error." Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1301 (11th Cir. 2008) (citation omitted). Parties seeking to intervene under Rule 24(a)(2) must show that:

(1) [their] application to intervene is timely; (2) [they have] an interest relating to the property or transaction which is the subject of the action; (3) [they are] so situated that disposition of the action, as a practical matter, may impede or impair [their] ability to protect that interest; and (4) ...

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