Connie Smith v. SEECO, Inc., 865 F.3d 1021

Background

Jeannie V. H. Thomas is a member of a certified Rule 23(b)(3) class in Smith’s suit against SEECO and related defendants over alleged royalty-payment accounting.
After class certification and submission (but before approval) of a proposed class notice, Thomas moved to intervene both as of right (Rule 24(a)) and permissively to challenge: (1) adequacy of class representative/counsel (alleging conflicts and related Rule 11 issues) and (2) the proposed notice and opt-out procedures as onerous.
The district court denied the motion "without prejudice," concluding intervention was unnecessary or premature because Thomas could protect her interests by opting out and because notice had not been approved or distributed.
Thomas appealed only the denial of intervention as of right (Rule 24(a)(2)). The appeal raises whether the district court’s denial was a final, appealable order under 28 U.S.C. § 1291.
The Court of Appeals held that the denial as to adequacy of representation was final and appealable, but the denial as to notice/opt-out was nonfinal and not appealable; it vacated the adequacy denial and remanded for further consideration, and dismissed the notice-related appeal for lack of jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of intervention as of right is immediately appealable	Thomas: denial based on adequacy should be reviewable now because the district court effectively ruled she cannot protect her interest except by intervening	Defendants/Smith: denial was "without prejudice" and/or premature; Thomas can opt out or reassert later, so order is nonfinal	Court: denial re adequacy was effectively final and appealable; vacated district court’s rationale and remanded for further consideration
Whether class-member concerns about notice and opt-out procedures make intervention ripe now	Thomas: she needs to challenge notice pre-approval to protect due-process/opt-out rights	Defendants/Smith: challenge is premature because notice had not been approved or distributed; can be raised later	Court: challenge to notice/opt-out was deferred by district court and is nonfinal; appeal dismissed for lack of jurisdiction
Whether a class member’s ability to opt out forecloses intervention as of right	Defendants/Smith: opt-out provides adequate protection, so intervention is unnecessary	Thomas: Rule 23 and Rule 24 history and text allow intervention to vindicate adequacy even when opt-out exists	Court: district court’s opt-out rationale is legally insufficient; intervention may be appropriate to vindicate adequacy — remanded
Whether appellate courts should sever mixed rulings (final and nonfinal) on a single motion to intervene	Thomas: severing is permissible; court may review final part	Defendants/Smith: permitting partial appeals undermines finality and invites piecemeal appeals	Court: allowed review of final adequacy ruling while dismissing nonfinal notice ruling; rejected a categorical one-interlocutory-appeal rule

Key Cases Cited

Dieser v. Cont'l Cas. Co., 440 F.3d 920 (8th Cir.) (defining finality for § 1291 purposes)
Borntrager v. Cent. States, Se. & Sw. Areas Pension Fund, 425 F.3d 1087 (8th Cir.) (final-judgment definition)
United States v. Geranis, 808 F.3d 723 (8th Cir.) (denial of intervention of right is immediately appealable)
Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (U.S.) (orders preventing putative intervenor from becoming a party are immediately reviewable)
Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519 (U.S.) (finality of orders denying intervention where movant cannot later appeal)
Microsoft Corp. v. Baker, 137 S. Ct. 1702 (U.S.) (policy favoring finality and limiting piecemeal appeals)
Behrens v. Pelletier, 516 U.S. 299 (U.S.) (discussion of interlocutory appeals and risks of serial appeals)
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (U.S.) (due-process standard for class notice and opt-out)