Lead Opinion
Affirmed in part, reversed in part, and remanded by published opinion. Judge WILLIAMS wrote the majority opinion in which Chief Judge JOSEPH F. ANDERSON joined. Judge MICHAEL wrote an opinion concurring in part and concurring in the judgment.
OPINION
Appellant Robert Devlin unsuccessfully sought to intervene to challenge a class action settlement in the United States District Court for the District of Maryland. Under the class settlement, the trustees (the new trustees)
I.
The Transportation Communications International Union (TCU) is a labor union representing approximately 85,000 employees, mostly in the railroad and service industries. The Plan is a defined benefits pension plan that covers TCU’s officers and employees. In October 1990, the former trustees recommended that the Plan be amended to add a COLA adjustment equal to the increase in the COLA index for every three years after a participant’s retirement. As a result of the amendment, which became effective on January 1, 1991, the existing retirees received increases in their pensions based upon the number of years they had been retired.
In late 1991, TCU elected new officers and selected the new trustees to replace the former trustees. In 1993, however, it was revealed that the former trustees had relied upon an incorrect valuation of the Plan’s liabilities in deciding to enact the COLA amendment and that enactment of the COLA amendment had increased the Plan’s liabilities by approximately $20 million. The new trustees believed that they could not rescind the COLA benefits across the board because, under ERISA, they were prohibited from amending the Plan to reduce accrued benefits. See 29 U.S.C.A. § 1054(g)(1) (providing that accrued benefits “may not be decreased by amendment of the plan”).
In January 1995, the new trustees filed suit against the former trustees in the United States District Court for the District of Maryland seeking damages and an equitable decree declaring the COLA amendment void as a product of fiduciary breaches.
On October 14, 1997, the new trustees filed the present action as a class action in anticipation of challenges to the 1997 amendment, seeking a declaration that the 1997 amendment was binding on all Plan participants or, in the alternative, that the 1991 COLA amendment was void as to all participants. The new trustees’ original complaint named Devlin as a class representative for the Retiree Subclass because he previously had been active in challenging the new trustees’ efforts to eliminate the COLA benefits. Devlin, however, refused to accept the position. The new trustees, therefore, named a new representative for the Retiree Subclass, Anthony Santoro.
On February 9, 1999, the district court for the District of Maryland conditionally certified the class pursuant to Federal Rule of Civil Procedure 23(b)(1)
In the meantime, Devlin and four other retirees
Shortly after the Court of Appeals for the Second Circuit affirmed the dismissal of Devlin’s challenge to the 1997 Amendment, Devlin became interested in the class action pending in the district court in Maryland. On April 20, 1999, Devlin’s counsel sent a letter to the district court informally seeking to intervene in the class action. On May 12, 1999, Devlin sent another letter through counsel to the district court repeating his informal request to intervene and informing the district court that Devlin was “still awaitpng] a response from Your Honor.” (J.A. at 732.) For whatever reason, Devlin did not formally move to intervene, nor did he take any further action to follow up on these letters, until September 1999.
On August 27, 1999, the Trustees filed a motion for preliminary approval of the settlement in the District of Maryland. On September 10, 1999, Devlin finally sought leave to intervene pursuant to Federal Rule of Civil Procedure 24(a) and (b).
On January 4, 2000, Devlin, Hagаn, Hewson, Milone, and Rinckwitz, individually and on behalf of REPA, filed a motion in the United States District Court for the Southern District of New York seeking to amend that court’s earlier judgment because, they asserted, the District of Maryland erred in approving the settlement, refusing to allow Devlin to intervene, and foreclosing Devlin’s right to sue for age discrimination. The Trustees responded by moving in the district court in Mary
Devlin raises several arguments on appeal. First, Devlin argues that the district court erred in denying his motion to intervene. Second, Devlin argues that he has standing to appeal from the district court’s final order approving settlement even though he did not successfully intervene because he tried to intexwene and objected to the settlement at the fairness hearing. Third, Devlin argues that the distinct court should not have approved the settlement. Finally, Devlin argues that the district court’s All Writs Act injunction prohibiting him from attacking the settlement in New York was improper under Federal Rule of Civil Procedure 65. We address each argument in turn.
II.
Devlin first argues thаt the district court erred in denying his motion to intervene. The district court denied Devlin’s motion to intervene because it concluded that Devlin’s attempt to intervene was “absolutely untimely” (J.A. at 2577) and that Devlin’s interests were adequately represented by the Retiree Subclass representative, Santoro. We review the district court’s denial of intervention for an abuse of discretion. See Virginia v. Westinghouse Elec. Corp.,
Devlin sought both intervention of right and permissive inteiwention. To intervene of right pursuant to Federal Rule of Civil Procedure 24(a), an applicant must satisfy all four of the following requirements: (1) the application must be timely; (2) the applicant must have an interest in the subject matter sufficient to merit intervention; (3) the denial of intervention would impair or impede the applicant’s ability to protect its interest; and (4) the applicant’s interest is not adequately represented by the existing parties to the litigation. See Fed.R.Civ.P. 24(a); Houston General Ins. Co. v. Moore,
We cannot conclude, under any standard of timeliness, that the district court abused its discretion in concluding that Devlin’s motion was untimely. Devlin was aware of his interest in the litigation from the outset of'the case, as demonstrated by his early and continuous opposition tо the removal of the COLA benefits. Nevertheless, instead of participating in the Maryland litigation, he pursued a separate suit in New York and even declined the role of named class representative in the Maryland suit. Only after the New York courts deferred to the Maryland court on the COLA issue did Devlin turn his attention to the Maryland case. At that point, Dev-lin still did not formally move to intervene. Although Devlin argues that he was not aware of his interest in the settlement until the notice of proposed settlement, Devlin’s argument is belied by his participation in the New York case, as well as by his letters, sent to the district court four months before his formal motion to intervene, that clearly indicate that he knew that his interests might be impacted by the proposed settlement. (See J.A. at 469 (Letter of April 20, 1999); J.A. at 731 (Letter of May 12, 1999)); see Hill v. Western Elec. Co.,
We also have no difficulty concluding that Devlin’s inexplicable delay prejudiced the parties because, despite his longstanding awareness of his interest in intervening, Devlin waited until the settlement negotiations were complete before seeking formally to intervene. See Hill,
IlL
We next address Devliri's challenge to the class settlement. As a threshold matter, we first must address whether Devlin has standing to challenge the merits of the settlement on appeal even though he failed successfully to intervene below. See Coyne & Delany Co. v. Selman,
Devlin asserts that he has standing to challenge the settlement by virtue of his objections at the fairness hearing and his
Those courts that have required actual intervention as a prerequisite to standing generally have relied upon the following rationale, first articulated by the Eleventh Circuit in Guthrie:
There are essentially three reasons for holding that individual, non-named, class members do not have standing to appeal a final judgment binding on the class members. First, such individuals cannot represent the class absent the procedures provided for in Rule 23 of the Federal Rules of Civil Procedure. Second, class members who disagree with the course of a class action have available adequate procedures through which their individual interests can be protect*207 ed. Third, class actions could become unmanageable and nonproductive if each member could individually decide to appeal.
Guthrie,
Rule 23 was intended to promote the efficient resolution of claims in cases involving multiple parties with similar claims, to eliminate repetitious litigation, and to avoid inconsistent judgments. To that end, the Rule elaborates comprehensive procedures to be followed in class actions. These procedures represent a careful balancing of the need for efficiency with the need to ensure adequate protection for the individual members of the class, factors not present in non-class action contexts.
Gottlieb,
Those courts that permit unnamed class members to appeal where they have objected below or unsuccessfully tried to intervene rely upon the rationale that “small claimants who could not litigate then-claims absent the class action mechanism could be left with ‘equally unpalatable alternatives — accept either nothing at all [by opting out] or a possible unfair settlement [by opting in but lacking standing to appeal].’ ” Bell Atlantic,
Frequently, in class or derivative litigation the number of clients is large and the individual injuries small (though, of course, when aggregated they can be and often are quite large). Courts and commentators have long recognized the “agency costs” inherent in class and derivative actions where the client, as principal, is neither well-situated nor adequately motivated to closely monitor and control the attorney, his agent. Shareholders with well-diversified portfolios or small holdings lack the incentive and information to police settlements — the costs of policing typically outweigh any pro rata benefits to the shareholder.
Id. (internal footnotes omitted). These collective action and agency costs are exacerbated by informational constraints inherent in class actions, and, as a result, “[t]he effort to obtain court approval entails the suspension, if not termination, of hostilities. In assessing settlements of represen
[gjiven the agency, collective action, and information problems inherent in settlements of derivative litigation, and the broad view of objector standing embodied in Ace, we conclude [that the non-named plaintiff who objected below] had standing to appeal the district court order approving the settlement. Assuring fair and adequate settlements outweighs concerns that non-intervening objectors will render the representative litigation “unwieldy.” It is sufficient that [the non-named plaintiff] attended the settlement hearing and voiced before the district court the same objections he now raises before us on appeal.
Id. (emphasis added).
A crucial differenсe between the approach of the majority of courts, as first articulated in Guthrie, and that of the minority of courts, as articulated in Bell Atlantic, is the way in which the courts balance class management concerns against fairness concerns. A majority of courts require successful intervention below as a prerequisite to appellate standing because they place a greater emphasis on the need for efficiency and effective class management, see Gottlieb,
We agree with the majority of courts that the need for effective class management and to avoid class fragmentation weighs strongly in favor of limiting the possibility that last-minute “spoilers” who were not entitled to intervene below might unduly delay class settlement on appeal. We fail to see how effective class management can be accomplished if non-named class members who were not entitled tо intervene before the district court can nevertheless usurp the role of the class representatives and, in effect, act as intervenors by contesting the merits of the class settlement on appeal.
We also recognize, however, the importance of ensuring that non-named class members can appeal the merits of the class settlement where intervention was wrongfully denied below. With these competing concerns in mind, we believe that the best approach is that articulated by the Sixth Circuit in Shults:
a non-named class member has standing to appeal a settlement order if he has formally intervened in the action (indeed, non-parties generally obtain such standing upon intervention). However, a non-named party that has not been permitted to inte'wene may also have*209 standing to bring a direct appeal if a motion to intervene, which is then appealed, should have been granted. A nonnamed party may also have standing to appeal if the district court has otherwise “summoned” him into court. Of course, as the Supreme Court has indicated, “the better practice is ... to seek intervention for purposes of appeal.” Marino,484 U.S. at 304 ,108 S.Ct. at 588 . But a mere voluntary appearance to state or file objections is an insufficient bаsis for standing to appeal.
Shults,
The dissent posits that an unnamed class member who objects but fails successfully to intervene below should be able to appeal the approval of a class action settlement. While it is true that the settlement affects the unnamed class members’ interests, the purpose of securing class representatives is to ensure that the unnamed class members’ interests are adequately protected. If the unnamed class member’s interests are not adequately protected by the class representatives, the district court should grant the motion to intervene. Any unnamed class members whose interests were not adequately protected by the class representatives and who filed a motion to intervene that was wrongfully denied will be afforded the opportunity to appeal the class settlement. Thus, our rule strikes the appropriate balance between the dissent’s concern over fairness to unnamed class members and concerns over efficiency and effective class management.
Additionally, merely requiring unnamed class members to object to the settlement as a prerequisite to their right to appeal does not adequately protect concerns about efficiency and effective class management because if the district court does not agree with the objections of the unnamed class members, it will proceed to approve the class settlement. Allowing appeals from each unnamed class member after approval of the class settlement implicates the precise management and efficiency concerns with which the class action system is concerned. Indeed, the facts of the present case provide an almost paradigmatic example of the “spoiler” effect that would follow from the minority viеw espoused by the Second, Third, and Ninth Circuits; here, Devlin sat on the sidelines while the class settlement was crafted, despite knowing for months that his interests were at stake. Devlin then objected and sought to intervene at nearly the last moment, at a point and time at which, as the
IV.
Finally, Devlin argues that the district court erred in enjoining him from attacking the settlement in the Southern District of New York because it failed to follow the requirements of Fed.R.Civ.P. 65. Devlin also argues that the district court failed to require the Trustees to post a bond and that it impaired Devlin’s right of access to the courts. In addition, Devlin asserts that his conduct in New York did not constitute a collateral attack against the settlement because the New York case did not relate to the proposed settlement. We review a district court’s grant of a motion under the All Writs Act for an abuse of discretion. See In re March,
Undеr the All Writs Act, 28 U.S.C.A. § 1651(a), a federal court may enjoin parties before it “from attempting to relitigate decided issues and to prevent
In the present case, Devlin filed a motion to alter or amend in the Southern District of New York in which he alleged that the District of Maryland’s refusаl to allow him to intervene
constitute[d] extraordinary circumstances that both were clearly erroneous and ... caused a manifest injustice to plaintiffs (a) by depriving plaintiffs of constitutional rights including due process rights, and the right of access to federal courts ... and (b) by depriving them of their right to litigate their age discrimination claims before a jury ... in a court of competent jurisdiction that is accessible and available to them, notwithstanding their limited financial resources, and by counsel of their own choosing.
(Supp. J.A. at 1040-41.) The district court granted the Trustee’s motion under the All Writs Act, ordering Devlin “to dismiss the pending action in the Southern District of New York” and enjoining Devlin and “all members of the defendant class ... from making any filing in any forum against any person, including counsel in this case or their law firms, that raises issues encompassed within the settlement of this action or that directly or collaterally attacks the settlement of this matter, except in this Court or on appeal from the Orders of this Court.” (Supp. J.A. at 129-30.)
Devlin argues that the district court’s All Writs Act injunction fails to satisfy Rule 65 because the injunction does not adequately set forth the reasons for its issuance.
Having concluded that Rule 65 applies to All Writs Act injunctions, we next must determine whether the district court’s injunction in this ease complies with Rule 65. Although we are reluctant to impose unnecessary obstacles on the district court’s ability to decisively protect its jurisdiction from collateral attack, particularly where, as here, it is clear that Devlin was seeking to undermine the district court’s approval of the class settlement, we nevertheless
V.
In conclusion, the district court did not abuse its discretion in denying Devlin’s motion to intervene, and, thus, Devlin does not have standing to contest thе merits of the class settlement on appeal. We re: verse and remand the district court’s 'All Writs Act injunction prohibiting Devlin from attacking the settlement in another jurisdiction because the district court did not adequately set forth its reasons for the injunction.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Notes
. The new trustees are Appellees Robert Scar-delletti, Frank Ferlin, Joel Parker, and Don Bujold.
. Appellee George Thomas Debarr is the named representative of the Active Subclass. Appellee Anthony Santoro is the named representative of the Retiree Subclass. Debarr and Santoro are parties both individually and as class representatives.
.The former trustees are Appellees Donald Bobo, R.I. Kilroy, F.T. Lynch, and Frank Ma-zur.
. 29 U.S.C.A. § 1054(g)(1) provides:
(g) Decrease of accrued benefits through amendment of plan
(1) The accrued benefit of a participant under a plan may not be decreased by an amendment of the plan, other than an amendment described in section 1082(c)(8) or 1441 of this title.
. The new trustees requested "appropriate equitable relief” pursuant to ERISA § 502(a)(2) and (a)(3) for damages and to nullify the COLA amendment for all Plan participants.
. The district court originally concluded that the COLA benefit was an accrued benefit for pre 1991 retirees. See Scardelletti v. Bobo,
. Rule 23(b)(1) provides,
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the parly opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantial!}' impair or impede their ability to protect their interests ....
Fed.R.Civ.P. 23(b)(1).
. The four other retirees are Andrew Hagan, Thomas Hewson, Steven Milone, and Frederick Rinckwitz, who, along with Devlin, filed suit individually "and 'as agents on behalf of all’ other retirees and their beneficiaries” against TCU. Devlin v. Transportation Communications Int'l Union,
. Federal Rule of Civil Procedure 24(a) relates to intervention of right, and Rule 24(b) relates to permissive intervention.
. Devlin also argues that based upon his objections at the fairness hearing, the district court should have ordered discovery with respect to his argument that his interests were not adequately represented because class counsel and the class representatives had conflicts of interest. We have previously stated, however, in the context of objecting named plaintiffs who were appealing a class action settlement, that "[w]hile Ethe court] should extend to any objector to the settlement leave to be heard, to examine witnesses and to submit evidence on the fairness of the settlement, it is entirely in order for the trial court to limit its proceedings to whаtever is necessary to aid it in reaching an informed, just arid reasoned decision." Flinn v. FMC Corp.,
. Having concluded that the district court did not abuse its discretion in denying Dcv-un's motion to intervene, we also conclude that the district court did not err in denying as moot his motions for preliminary injunction, to strike evidence, and to disqualify counsel, which accompanied his motion to intervene. See Retired Chicago Police Ass'n v. City of Chicago,
. These com Is also point to the Supreme Court's decision in Marino v. Ortiz,
The Sevenlh Circuit, in Felzen v. Andreas,
. In the non-class action context, we have stated that
persons who are neither original parties to, nor intervenors in, district court proceedings ordinarily may not appeal a judgment of the district court, [tjhis rule ... is not without exception. For example, a person who [1] has an interest in the cause litigated and [2] has participated in the proceedings actively enough to make him privy to the record may appeal despite the fact that he was not named in the complaint аnd did not intervene.
Davis v. Scott,
. Bell Atlantic Corp. v. Bolger,
. The court in Bell Atlantic Corp. v. Bolger, 2 F.3d 1304 (3d Cir.1993), also pointed to the risk that
plaintiffs’ counsel and the defendants will structure a settlement such that the plaintiffs' attorneys’ fees are disproportionate to any relief obtained for the corporation. Plaintiffs’ attorneys and the defendants may settle in a manner adverse to the interests of the plaintiffs by exchanging a low settlement for high fees. Such a risk cautions against creating obstacles to challenging derivative action settlement agreements.
Id. at 1310. In the present case, counsel were compensated on an hourly basis by the Plan and by TCU.
. Although the dissent argues that class members have standing to object to the settlement at the district court and that "[i]t is inconsistent with due process to deny the same class member standing to appeal the settlement order after he has exercised his right to object in district court,” (Dissent, at 214), our decision does not deny standing to a non-intervenor who seeks to appeal the denial of a right to object to the settlement at the fairness hearing. See supra, note 10 (discussing Devlin’s argument that the district court failed to order discovery to resolve his objection at the fairness hearing that his interests were not adequately represented).
. We note that one of the bases for Devlin's challenge to the class settlement is his assertion that COLA benefits are accrued benefits that could not be eliminated by amendment without prior notice to and approval from the Secretary of Labor. See 29 U.S.C.A. § 1054(g)(1) (West 1999) (providing thaL "[t]he accrued benefit of a participant under a plan may not be decreased by an amendment of the plan, other than an amendment described in section 1082(c)(8) or 1441 oí’ this title”); 20 U.S.C.A. § 1082(c)(8) (West 1999) (providing that ”[n]o amendment described in this paragraph which reduces the accrued benefits of any participant shall take effect unless the plan administrator files a notice with the Secretary notifying him of such amendment and the Secretary has apрroved such amendment, or, within 90 days after the date on which such notice was filed, failed to disapprove such amendment.”). Because the Trustees did not follow this procedure, Devlin asserts that the settlement is void insofar as it is based upon illegal consideration. See Collins v. Seafarers Pension Trust,
Although we do not decide this issue, we note that the nullification of the 1991 Amendment was ultimately not the product of the 1997 Amendment, but rather was the product of the district court's declaration that "[t]he amendment to the Plan ... providing for an automatic cost of living adjustment effective January 1, 1991 is null and void as of its adoption and of no force or effect.” (Supp. J.A. at 948.) In other words, it was not a Plan amendment that revoked the COLA increases, but rather the district court’s final order declaring the 1991 Amendment void.
We further note that it is at best unclear whether the 1991 COLA amendment constitutes an accrued benefit for participants such as Devlin who retired prior to the 1991 Amendment. Although the Seventh Circuit in Hickey v. Chicago Truck Drivers, Helpers & Warehouse Workers Union,
. 28 U.S.C.A. § 1651 provides that
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.
28 Ú.S.C.A. § 1651 (West 1994).
. Relying upon Hoechst Diafoil Co. v. Nan Ya Plastics Corp.,
. The district courL relied upon the conclu-sory statement that it is "upon finding that an injunction is necessary and appropriate in aid of this Court's jurisdiction." (Supp. J.A. at 129.) The district court did orally set forth its reasons at the hearing. (Supp. J.A. at 938-41 ("The case in New York right now is absolutely an attack on this litigation and the settlement. It is not simply a derivative case seeking (o increase assets of the plan.”).)
. Devlin also argues Lhat the district court improperly impaired his access to the courts. We note, however, that the injunction explicitly leaves Devlin the option of pursuing an action in the District of Maryland, and he is nol precluded from litigating in any court any matler not connected with this litigation. Thus, we fail to see how the districL court has improperly impaired Devlin's access to the court system. Likewise, although Devlin argues that his post-injunction motion, filed five days after the injunction, was not an attack on the settlement, his post-injunction motion clearly invites the Southern District of New York to undermine the basis for the District of Maryland’s approval of Lhe settlement. We have no difficulty concluding that Devlin's motion was an aLlack on the District of Maryland’s judgment.
Concurrence Opinion
concurring in part and concurring in the judgment:
The only fair rule gives the right of appeal to an unnamed class member who objects to a settlement in district court. This rule, which is steeped in tradition and followed in three of our circuits, does not burden the class action system. I- therefore respectfully disagree with the majority’s decision, stated in part III of its opinion, that an objecting class member who does not intervene lacks standing to appeal a settlement order. Nevertheless, because I otherwise agree with the majority, I concur in the judgment аnd in parts I, II, and IV of the court’s opinion.
I.
An unnamed class member has the right to object in district court to a proposed class action settlement. See Gould v. Alleco,
First, the unnamed class member’s legal rights are affected by the order approving the settlement. This gives the class member standing to object to the settlement in district court. See Petrovic v. Amoco Oil Co.,
Second, the unnamed class member, as a prerequisite for appeal, must state his objections to the settlement in district court. The class representatives and the defendants thus face potential appeals only from those unnamed class members whose objections are denied in district court. In most instances an objector will have little incentive to appeal because the projected expenses will outweigh the potential for convincing the appeals court that the district court abused its discretion in approving a settlement after considering the objector’s concerns.
Third, affording unnamed class member-objectors the right to appeal serves to encourage fair settlements in class action cases. As the Third Circuit has said, class actions present the risk that
[plaintiffs’ attorneys and the defendants may settle in a manner adverse to the interests of the plaintiffs by exchanging a low settlement for high fees.... The effort to obtain court approval entails the suspension, if not termination, of hostilities. In assessing settlements of representative actions, judges no longer have the full benefit of the adversarial process. In seeking court approval of their settlement proposal, plaintiffs’ attorneys’ and the defendants’ interests coalesce and mutual interest may result in mutual indulgence. The parties can be expected to spotlight the proposal’s strengths and slight its defects. In such circumstances, objectors play an impor*215 tant role by giving courts access to information on the settlement’s merits.
Bell Atl. v. Bolger,
Fourth, we have not been presented with any evidence that objector appeals have gummed up the works in the circuits (the Second, Third, and Ninth) where they are expressly allowed. Class action litigation is plenteous in the district courts in these circuits, and there is no indication that the circuit courts have been faced with an unmanageable avalanche of appeals by objectors to class action settlements. Nor is there any indication that plaintiffs are reluctant to become class representatives or that plaintiffs’ lawyers are reluctant to file class actions because unnamed, objecting class members have the right to appeal. In short, the objector appeal right does not appear to be causing the class management and fragmentation problems that worry the majority.
Fifth, the rule authorizing objector appeals actually promotes efficiency in the class action system. For example, the unnamed. Rule 23(b)(3) class member who knows he has the right to appeal is less likely to opt out of the class because he will have the opportunity, after objecting, to appeal any settlement order he regards as unfair. In addition, the availability of appellate review of the denial of a class member’s objections will lessen the possibility of collateral attacks on settlement orders. See, e.g., Walker v. City of Mesquite,
Finally, the majоrity’s approach — requiring an unnamed class member to formally intervene before he can appeal — is unduly burdensome to class members and creates its own inefficiencies. As the majority notes, an intervention application must be timely. See Fed.R.Civ.P. 24(a). Yet the majority fails to recognize that most unnamed class members receive very little information about their case as it goes along. See Jonathan R. Macey & Geoffrey P. Miller, The Plaintiffs’ Attorney’s Role in Class Action and Derivative Litigation: Economic Analysis and Recommendations for Preform, 58 U. Chi. L.Rev. 1, 20 (1991). Indeed, most unnamed class members do not realize that they might have an objection until they receive notice of the fairness hearing at the end of the litigation. This lack of information makes it difficult for unnamed class members to make timely decisions to seek intervention in an effort to protect their interests. The intervention requirement also has the potential to waste judicial resources, and it will not lead to quicker resolution of cases. The intervention requirement will place more work on the district courts who will have to deal with motions to intervene in addition to the fairness proceedings. Of course, if intervention motions are denied, the unnamed class members will be able to appeal the denials. The intervention alternative adopted by the majority therefore does nothing to take cax-e of its concern about “delay[ing] class settlement on appeal.” Ante at 208. At bottom, the majority’s approach forces costly intervention mo
I firmly but respectfully disagree with the majority’s intervention requirement that denies appeal rights to unnamed class members. Giving unnamed, objecting class members the right to appellate review is much better insurance against unfair class action settlements. The latter approach appears to be working in three of our busiest circuits, and it will work here, too.
II.
I now turn to how I would deal with Robert Devlin’s appeal, which is before us. The district court denied his motion to intervene as untimely, and I (like the majority) would affirm that ruling. I, of course, disagree with the majority’s decision that Devlin lacks standing to appeal the order approving the settlement agreement. Because Devlin filed objections tо the proposed settlement in the fairness proceedings, I would hold that he has standing to appeal. Nevertheless, after considering the merits, I would affirm the district court’s order approving the settlement. As the majority points out, the “district court thoroughly considered the fairness and adequacy of the settlement,” ante at 204 n. 10, giving careful consideration to Devlin’s objections. Devlin objected to the settlement because it nullified the 1991 COLA amendment. The COLA amendment had the effect of substantially increasing benefits to participants who retired before January 1, 1991. Because the removal of the COLA reduced the retirement benefits of pre-1991 retirees, Devlin argued that the settlement was unfair in that it adversely affected the pre-1991 retiree subclass. The district court found, however, that restoration of the COLA would jeopardize the viability of the retirement plan and would compromise the interests of the pre-1991 retiree subclass and the active subclass. The court concluded that Devlin’s position “was absolutely destructive of everybody’s rights and interests” and would “steer the ship onto the rocks.” A review of the record of the fairness proceedings reveals that the district court fully analyzed the proposed settlement for fairness and adequacy in accordance with the Jiffy Lube factors. See In re Jiffy Lube Sec. Litig.,