Forsyth v. HP Inc.

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION DONNA J. FORSYTH, et al., 8 Case No. 5:16-cv-04775-EJD Plaintiffs, 9 ORDER DENYING DANIEL Vv. COCHRAN’S MOTION TO 10 INTERVENE AS A PLAINTIFF HP INC., et al., 1] Re: Dkt. No. 384 Defendants.

13 On August 18, 2016, Plaintiffs filed a putative class action alleging that Defendants || violated the Age Discrimination in Employment Act (“ADEA”), California Fair Employment and © 15 || Housing Act (“FEHA”), and other California laws. Complaint § 4, Dkt. 1. Daniel Cochran Q 16 || (“Cochran”) seeks to intervene in this action. Notice and Motion for Intervention as Plaintiff and

17 || Memorandum of Points and Authorities in Support Thereof (“Mot.”), Dkt. 384. Both Plaintiffs 18 and Defendants oppose Cochran’s motion to intervene. Having considered the Parties’ papers, the |} Court DENIES Cochran’s motion to intervene.’

20 I. BACKGROUND 21 A. Factual Background 22 In October 2013, HP’s Chief Executive Officer (“CEO”) Meg Whitman stated during a 23 Securities Analyst Meeting that HP planned to “recalibrate and reshape” the workforce by || “replacing” existing workers with “a whole host of young people.” Plaintiffs filed this action 25 alleging that HP’s Workforce Reduction Plan (“WFR”) caused age discrimination in violation of 27 ' Pursuant to N.D. Cal. Civ. L.R. 7-1(b) and General Order 72-5, this Court found this motion suitable for consideration without oral argument. See Dkt. 396.

28 Case No.: 5:16-cv-04775-EJD ORDER DENYING DANIEL COCHRAN’S MOTION TO INTERVENE AS A PLAINTIFF the ADEA, FEHA, and other California laws. Plaintiffs’ original Complaint and the operative || pleading, the Fourth Amended Complaint, both plead facts showing that Defendants are liable || under disparate treatment and disparate impact (two commonly accepted age discrimination || theories).

5 On May 1, 2020, Cochran filed a complaint in the District of Colorado alleging ADEA and || Colorado state-law age discrimination claims in connection with the WFR. Cochran’s Colorado || action alleges claims under the ADEA, Colorado Fair Employment Practice Act (““CFEPA”), and a Colorado state-law claim for wrongful termination. On May 21, 2020, Cochran filed an amended || complaint, which added a Colorado Consumer Protection Act (““CCPA”) claim. The amended || complaint includes two putative classes: a Nationwide Class and a Colorado Class. The 11 Nationwide Class comprises: “All current, former, or prospective employees who worked for HP || inthe United States between May 1, 2016 and present who were at least 40 years old at the time 13 HP selected them for termination under HP’s Workforce Reduction Plan.” The Colorado Class || comprises: “All current, former, or prospective employees who worked for HP in the State of 15 Colorado between May 1, 2016 and present who were at least 40 years old at the time HP selected a 16 || them for termination under HP’s Workforce Reduction Plan.”

3 17 B. Procedural History 18 On June 12, 2020, Cochran filed his motion to intervene. See Mot. As noted, both || Plaintiffs and Defendants oppose Cochran’s request to intervene. Defendants’ Opposition to || Cochran’s Motion for Intervention (“D Opp.”), Dkt. 385; Plaintiffs’ Opposition to Cochran’s 21 Motion for Intervention (“P Opp.”), Dkt. 386. On July 2, 2020, Cochran filed replies to Plaintiffs’ || and Defendants’ oppositions. See Reply to Defendants’ Opposition to Motion for Intervention 23 (“Reply re D Opp.”), Dkt. 388; Reply to Plaintiffs’ Opposition to Motion for Intervention (“Reply || re P Opp.”), Dkt. 387.

28 Case No.: 5:16-cv-04775-EJD ORDER DENYING DANIEL COCHRAN’S MOTION TO INTERVENE AS A PLAINTIFF 1 Il. LEGAL STANDARD 2 A court must permit a nonparty to intervene in a pending lawsuit and gain party status if a federal statute confers an unconditional right to intervene. Fed. R. Civ. P. 24(a)(1). Where, as || here, the nonparty does not claim a right to intervene by a federal statute, the party must show that: 5 (1) it has a ‘significant protectable interest’ relating to the property or transaction that is the subject of the action; (2) the disposition of 6 the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; (3) the application is timely; 7 and (4) the existing parties may not adequately represent the applicant’s interest.

9 || Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998) (citation and quotation marks omitted); || see also Fed. R. Civ. P. 24(a)(2); U.S. ex rel. McGough v. Covington Techs. Co., 967 F.2d 1391 11 (9th Cir. 1992) (“Generally, Rule 24(a)(2) is construed broadly in favor of proposed intervenors || and ‘we are guided primarily by practical considerations.’” (quoting United States v. Stringfellow, 13 783 F.2d 821, 826 (9th Cir. 1986))). “Failure to satisfy any one of the requirements is fatal to the || application, and [the court] need not reach the remaining elements if one of the elements is not 15 satisfied.” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009). a 16 If a party cannot meet the standard to intervene as of right, the Court may still allow 17 || permissive intervention. See Fed. R. Civ. P. 24(b)(1)(B) (allowing intervention if the party has a || claim or defense that shares with the main action a common question of law or fact). An applicant || who seeks permissive intervention must prove that it meets three threshold requirements: “(1) it || shares a common question of law or fact with the main action; (2) its motion is timely; and (3) the 21 court has an independent basis for jurisdiction over the applicant's claims.” Donnelly, 159 F.3d at 22 || 412. Even if an applicant satisfies those threshold requirements, the court retains discretion to 23 deny intervention. See Orange Cty. v. Air Cal., 799 F.2d 535, 539 (9th Cir. 1986) (“Permissive || intervention is committed to the broad discretion of the district court... .”).

28 Case No.: 5:16-cv-04775-EJD ORDER DENYING DANIEL COCHRAN’S MOTION TO INTERVENE AS A PLAINTIFF 1 I. DISCUSSION 2 A. Intervention of Right 3 The Court first considers whether Cochran meets the standard to intervene as of right.

4 || Cochran does not claim a right to intervene by a federal statute. Therefore, he must show that: 5 (1) [he] has a ‘significant protectable interest’ relating to the property or transaction that is the subject of the action; (2) the 6 disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; (3) the application is 7 timely; and (4) the existing parties may not adequately represent the applicant’s interest.

9 || Donnelly, 159 F.3d at 409 (citation and quotation marks omitted). Failure to meet any one of the || four requirements disqualifies Cochran from intervening as of right. See Perry 587 F.3d at 950.

11 Both Plaintiffs and Defendants contend Cochran has not met the second factor. That, is, s they argue that the disposition of this action will not, as a practical matter, impair or impede 13 Cochran’s ability to protect his interests in his Colorado action. P Opp. 3-4; D Opp. 10-15. The || Court agrees. Cochran is not a member of the state classes pled in the Fourth Amended © 15 Complaint, and he retains the right to opt out of the nationwide class.” See Dkt. 391 at □□ 114, 115 Q 16 || (alleging only a California class); Bergman v. Thelen LLP, 2009 WL 1308019, at *5—6 (N.D. Cal.

17 || May 11, 2009) (finding that the proposed intervenors’ ability to protect their interests was not 18 impaired because they could opt out to assert their claims separately) (citing Glass v. UBS || Financial Services, 2007 WL 474836, at *7—-8 (N.D. Cal. Jan. 17, 2007)); see also Cotter v. Lyft, || Inc., 2016 WL 3654454, at *2-3 (N.D. Cal. June 28, 2016) (“The Zamora plaintiffs’ ability to || protect their interest in the claims released by the Cotter action will not be impaired by the Cotter || settlement, because the Zamora plaintiffs may file formal objections and appear at the final 23 approval hearing, or opt out of the Cotter settlement and continue to pursue their claims 25 lo. i, Plaintiffs’ nationwide class adequately represents Cochran because Plaintiffs and Cochran’s || share the same “ultimate objective” of addressing age discrimination grievances. See Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 898 (9th Cir. 2011) (“If an applicant || for intervention and an existing party share the same ultimate objective, a presumption of adequacy of representation arises.”).

28 Case No.: 5:16-cv-04775-EJD ORDER DENYING DANIEL COCHRAN’S MOTION TO INTERVENE AS A PLAINTIFF against Lyft if they wish.”).

2 First, Cochran’s Colorado claims are unaffected Forsyth. See P Opp. 3; D Opp. 10-13.

3 || There is no relationship between Plaintiffs’ California claims and Cochran’s Colorado claims.

4 || Cochran himself acknowledges that his proposed Colorado class “has never been—and will never || be—represented in Forsyth.” Mot. 9. Cochran puts forth “three separate and distinct Colorado || claims against HP that will not and cannot be pursued in the Forsyth Action.” Jd. (emphasis || omitted). Thus, the Forsyth action will never impair or impede Cochran’s ability to protect his Colorado claims. See Donnelly, 159 F.3d at 409 9 Second, while Cochran acknowledges that he may opt-out of the nationwide Forsyth class, || he still asserts that his ability to pursue his claims may be impaired by any settlement agreement 11 between Plaintiffs and Defendants. Mot. 10-11. The Court is not convinced. No settlement || agreement has been proposed. Further, the speculative settlement agreement does not rise to the || level of concreteness necessary to demonstrate that the disposition of this action would impair || Cochran’s interests. See Fisher v. Arizona, 594 Fed. App’x 917, 919 (9th Cir. 2014) (finding that 15 || the state could not intervene as of right because their alleged protectable interest was too a 16 || speculative) (citing City of Emeryville v. Robinson, 621 F.3d 1251, 1259 (9th Cir. 2010)). Even if 17 || Cochran’s predictions come to fruition, he may still protect his interests by objecting to any 18 settlement. See, e.g., Raquedan v. Centerplate of Del., Inc., 376 F. Supp. 3d 1038 (N.D. Cal. || 2019) (reasoning that a settlement would not impair the putative intervenor’s interest because she || could opt out or object to it).

21 Cochran thus fails to satisfy the second factor and the Court DENIES his motion to || intervene as of right.’ No further analysis of the other requirements is necessary. See Perry 587 || F.3d at 950.

76 || s As discussed below, this action is already forty-eight months underway. While the Court does || not base its analysis on timeliness, the Court remains concerned about timeliness because Cochran’s intervention would likely further delay proceedings. See infra III.B.

28 Case No.: 5:16-cv-04775-EJD ORDER DENYING DANIEL COCHRAN’S MOTION TO INTERVENE AS A PLAINTIFF 1 B. Permissive Intervention 2 In the alternative, Cochran moves for permissive intervention pursuant to Rule 24(b). Mot.

3 at 17. A court may grant permissive intervention when the applicant for intervention shows || (1) independent grounds for jurisdiction, (2) that the motion is timely, and (3) a common question of law or fact with the applicant’s claim or defense and the main action. Nw. Forest Res. Council || v. Glickman, 82 F.3d 825, 839 (9th Cir. 1996). “Even if an applicant satisfies those threshold || requirements, the district court has discretion to deny permissive intervention.” Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998). As Cochran acknowledges, “[i]n exercising its || discretion, the court must consider whether the intervention will unduly delay or prejudice the || adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3); Mot. 17.

1] Cochran claims that his motion is timely because the action “is still in its infancy,” as no || expert designations have been made, no classes have been certified, and more time has been 13 devoted to mediations than active litigation. Mot. 16. The Court disagrees. In fact, this action has || been underway for forty-eight months. As Cochran notes, a great deal of time has been dedicated 15 || to mandatory pre-arbitration mediations for each individual who signed a Release Agreement a 16 || (“RA”). See Mot. 16. If permitted to intervene, Cochran’s claims would introduce more 17 || individuals to this action who are subject to the same RA, and would thus be required to || participate in the same process of pre-arbitration mediation. This would inevitably delay || proceedings even further. The potential magnitude of such a delay raises serious judicial economy || concerns. The Court finds that permitting intervention “would not significantly add to the full 21 development of the underlying factual issues in this case nor the equitable adjudication of the legal || questions involved but, instead, would significantly delay the proceedings and prejudice the rights 23 of the original parties here.” See Gallucci v. Boiron, Inc., 2012 WL 12864924, at *8 (S.D. Cal. || Apr. 25, 2012). Accordingly, in its discretion, the Court DENIES Cochran’s motion for || permissive intervention. See Orange Cty. v. Air Cal., 799 F.2d 535, 539 (9th Cir. 1986) || (“Permissive intervention is committed to the broad discretion of the district court... .”).

28 Case No.: 5:16-cv-04775-EJD ORDER DENYING DANIEL COCHRAN’S MOTION TO INTERVENE AS A PLAINTIFF 1 C. CONCLUSION 2 For the foregoing reasons, Cochran’s request to intervene is DENIED.

3 IT IS SO ORDERED.

4 || Dated: August 21, 2020 EDWARD J. DAVILA 6 United States District Judge

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