OPINION & ORDER This case is a putative consumer class action alleging that defendants Mowi USA, LLC, Mowi Ducktrap, LLC, Mowi USA Holding, LLC, and Mowi ASA (together, “Mowi”) — which comprise one of the world’s largest seafood companies — misrepresented that certain smoked Atlantic salmon products they sell are “sustainably sourced,” “all natural,” and sourced from Maine. Since filing, plaintiffs Neversink General Store (“Neversink”) and Brenda Tomlinson have reached a nationwide class settlement agreement with Mowi and moved for preliminary approval of their settlement. See Dkts. 37, 66-67. By separate order today, the Court is granting that motion. After the parties notified the Court of their settlement but before they moved for preliminary approval, intervenors Abigail Starr and Lauren Snider (“Intervenors”) appeared. See Dkts. 61-63. Intervenors are plaintiffs in a separate, later-filed class action against Mowi bringing largely identical claims, which is pending in the District of Maine. They have moved to intervene because the existing plaintiffs allegedly do not adequately protect Intervenors’ interests. For the following reasons, the Court denies their request. I. Background1 There are currently three relevant actions, including this one, pending against Mowi, each of which brings largely identical claims. Intervenors are plaintiffs in one (the “Maine Action”). Intervenors’ attorneys are counsel in both the Maine Action and an earlier-filed action, brought on behalf of a consumer-advocacy organization, Organic Consumers Association (“OCA”) (the “DC Action”). The DC Action was filed first, this action second, and the Maine Action third. The Court briefly describes each case as relevant to the pending motion. A. The DC Action On July 30, 2020 — three months before this action was filed — counsel for Intervenors filed a case against Mowi in Washington, DC superior court on behalf of OCA. See Simonson Decl., Ex. A (“OCA Compl.”); Int. Mem. at 1. Like plaintiffs here, OCA alleged that Mowi misrepresented that its smoked Atlantic salmon products were sustainably sourced, all natural, and from Maine. The complaint in the DC action, however, was not a class action and sought only injunctive relief, not damages. See OCA Compl.
17 (“This is not a class action[.]“), 18 (“This action does not seek damages.”). Mowi has moved to dismiss the DC action; that motion is pending. See Organic Consumers Ass’n v. Mowi ASA, No. 20 CA 3368(B) (D.C. Sup. Ct. filed July 30, 2020). B. This Action On November 5, 2020, Neversink commenced this action on behalf of a putative class, alleging that Mowi falsely claimed that its smoked salmon products were sustainable, all natural, and sourced from Maine. Dkt. 1. Intervenors describe this case as a “copycat” of the DC Action, noting that many allegations here appear to have been copied and pasted in haec verba from the complaint in the DC Action. See Int. Mem. at 1-2; see also Dkt. 29 at 1-2 & n.1 (Mowi noting the same in its motion to dismiss). On December 22, 2020, Mowi moved to dismiss Neversink’s claims. Dkts. 18-20. On January 12, 2021, Neversink filed an amended complaint. Dkt. 24 (“FAC”). On January 18, 2021, plaintiffs’ counsel wrote Mowi to notify it that Tomlinson also intended to pursue a class action bringing similar claims. Klinger Decl. 2. The next day, Mowi told plaintiffs’ counsel that it was interested in exploring a possible settlement. Id. 3. On February 1, 2021, Mowi moved to dismiss the FAC. Dkts. 28-31. Meanwhile, settlement negotiations moved forward. On February 8, 2021, plaintiffs and Mowi held a successful mediation before a privately retained mediator, former United States Magistrate Judge Hon. Diane Welsh. See Klinger Decl. 4; Welsh Decl. On February 10, 2021, Neversink filed a notice of settlement. Dkt. 37. On February 23, 2021, Neversink moved for leave to file a second amended complaint, which would “conform[] to the agreement reached in principle by the Parties” by adding Tomlinson as a plaintiff, Mowi ASA as a defendant, and allegations about Mowi’s Maine representations. Dkt. 40 at 1-3. On March 15, 2021, plaintiffs filed the second amended complaint. Dkt. 45 (“SAC”). The SAC brought claims on behalf of a nationwide class and a New York subclass. Id. 100. On March 16, 2021, plaintiffs filed an unopposed motion for preliminary approval of the parties’ settlement. Dkt. 49. That motion sought certification only of a nationwide class, not the New York subclass. Id. at 4. On April 28, 2021, the Court issued an order expressing doubt that it would be able to certify the proposed injunctive class under Rule 23(b)(2), given the recent decision in Berni v. Barilla S.p.A., 964 F.3d 141, 149 (2d Cir. 2020) (“[P]ast purchasers of a product…are not eligible for class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure.”); id. (vacating final approval of class settlement). The Court therefore directed the parties to file either (1) a letter explaining the basis on which the Court could certify an injunctive class under Rule 23(b)(2) consistent with Berni; or (2) a revised proposed settlement excluding injunctive relief and instead proceeding only under Rule 23(b)(3). Dkt. 65. On May 5, 2021, plaintiffs filed an amended motion for preliminary approval of the class settlement, now contemplating certification of a nationwide damages class only under Rule 23(b)(3), and excluding any class-wide injunctive relief in the proposed settlement agreement. Dkts. 67-68. The amount of the monetary relief is unchanged from the original proposed settlement. C. The Maine Action On December 31, 2020, Starr — represented by the same counsel who represent OCA in the DC Action — filed a class-action complaint in the District of Maine on behalf of a putative nationwide class of purchasers and a New York subclass. See Starr v. Mowi ASA, No. 20 Civ. 488 (LEW), Dkt. 1 (D. Me. filed Dec. 31, 2020). On February 26, 2021, Starr amended the complaint to add Snider as a named plaintiff. Id., Dkt. 20. The amended complaint in the Maine Action, like those in the other two actions, alleges that Mowi falsely claimed that its smoked Atlantic salmon products were sustainably sourced, all natural, and from Maine. Id. Mowi has moved to dismiss or stay the Maine Action under the first-filed rule; that motion remains pending. Id., Dkt. 21. D. The Motion to Intervene On March 8, 2021 — after the parties here had filed their notice of settlement but before they had moved for preliminary approval (and therefore before the settlement’s terms became public) — Intervenors moved to intervene. See Int. Mem. They argue that the copycat nature of the allegations here, coupled with plaintiffs’ hasty settlement with Mowi gives rise to an inference that the settlement may have been collusive. Id. at 8-10. And because Intervenors are absent members of the proposed class, they argue that any class settlement would risk binding them to such an unsatisfactory resolution. Id. at 7-8. On March 16, 2021, plaintiffs and Mowi (together, the “parties”) each filed oppositions to the motion to intervene. See Pl. Mem.; Mowi Mem. They argue that the terms of the settlement agreement, and the process through which the parties reached it, show Intervenors’ concerns to be unfounded — especially considering prior, comparable settlement demands made by Intervenors’ counsel similarly early on in the DC and Maine Actions. In any event, the parties argue, intervention is improper. II. Applicable Legal Standards A party seeking to intervene may do so either as of right or permissively. See Fed. R. Civ. P. 24(a)(2), (b)(1). As to the former, a court must permit a person to intervene as of right when all four of the following conditions are met: (1) the motion is timely; (2) the applicant asserts an interest relating to the property or transaction that is the subject of the action; (3) the applicant is so situated that without intervention, disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; and (4) the applicant’s interest is not adequately represented by the other parties. MasterCard Int’l Inc. v. Visa Int’l Serv. Ass’n, 471 F.3d 377, 389 (2d Cir. 2006). “Failure to satisfy any one of these requirements is a sufficient ground to deny the application.” Farmland Dairies v. Commissioner of N.Y. State Dep’t of Agric. & Mkts., 847 F.2d 1038, 1043 (2d Cir. 1988). “A district court may grant a motion for permissive intervention if the application is timely and if the ‘applicant’s claim or defense and the main action have a question of law or fact in common.’” In re Holocaust Victim Assets Litig., 225 F.3d 191, 202 (2d Cir. 2000) (quoting Fed. R. Civ. P. 24(b)(2)). “The court must consider whether granting permissive intervention ‘will unduly delay or prejudice the adjudication of the rights’ of the existing parties.” Id. (quoting Fed. R. Civ. P. 24(b)(2)). Whether to grant permissive intervention is within “the broad discretion of the district court.” AT&T Corp. v. Sprint Corp., 407 F.3d 560, 561 (2d Cir. 2005); see United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 990 n.19 (2d Cir. 1984) (“[A] denial of permissive intervention has virtually never been reversed.”). III. Discussion A. Intervention as of Right Even assuming that Intervenors’ motion is timely2 and that they have a legally protected interest in this case,3 they have no right to intervene because they have not shown that this action may impair their interests or that the existing plaintiffs will fail to adequately represent them. Thus, the Court denies their motion to intervene under Rule 24(a). First, Intervenors have failed to show that this action may impair or impede their interests absent intervention. For an interest to be cognizable by Rule 24(a)(2), it must be “direct, substantial, and legally protectable.” Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 473 (2d Cir. 2010) (quoting Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir. 1990)). Intervenors’ only proffer on this point is that they “are putative class members,” “clearly possess an interest related to the instant action,” and that, “absent intervention, [their] ability to protect their interests will be impaired.” Int. Mem. at 7-8 (citing out-of-Circuit authority). Courts in this Circuit, however, have routinely held that a party’s status as an absent class member, standing alone, does not meet Rule 24(a)’s impairment requirement. See, e.g., Calderon, 2020 WL 2792979, at *6 (An intervenor “is perfectly free to opt out and pursue his claim on his own in the court of his choice. Therefore, intervention is not needed for him to protect his interest in the ‘property or transaction that is the subject matter of’ his own lawsuit[.]“); Rudolph v. Hudsons Bay Co., No. 18 Civ. 8472 (PKC), 2019 WL 1416986, at *3 (S.D.N.Y. Mar. 29, 2019) (“With regard to intervention as of right, the right to opt out of a class or object to a settlement means that the proposed intervenors will have the ability to protect their interests without intervention.”); In re Platinum & Palladium Commodities Litig., No. 10 Civ. 3617 (WHP), 2014 WL 3500655, at *7 (S.D.N.Y. July 15, 2014) (motion to intervene “unnecessary because ‘[c]lass members need not formally intervene in order to raise their objections to a proposed settlement’” (quoting In re NASDAQ Mkt.-Makers Antitrust Litig., 187 F.R.D. 465, 491 (S.D.N.Y. 1998))); In re Bank of Am. Corp. Sec., Derivative & Emp. Ret. Income Sec. Act (ERISA) Litig., No. 09 MD 2058 (PKC), 2012 WL 1674299, at *3 (S.D.N.Y. May 14, 2012) (denying intervention as of right under third factor where proposed intervenors could not explain why rights to object to class settlement were insufficient to protect their rights); see also Travis v. Navient Corp., 284 F. Supp. 3d 335, 344-45 (E.D.N.Y. 2018) (finding no risk of impairment where intervenors claimed that “without intervention, their interests might be impaired by conflicting rulings in this action or a potential ‘reverse auction’ settlement,” given Rule 23 protections) (collecting cases).4 Although at times intervention by absent class members is warranted, typically the safeguards provided by Rule 23 will — and indeed are specifically designed to — guard against the impairment of class members’ interests. That is because class certification requires a judicial determination that the named plaintiff(s) and class counsel will adequately represent the class, Fed. R. Civ. P. 23(a)(4), (e)(1)(B)(i); final approval of any class settlement requires a judicial determination that the settlement is “fair, reasonable, and adequate,” Fed. R. Civ. P. 23(e)(2) (directing courts to consider, inter alia, whether the settlement “was negotiated at arm’s length” and whether “the relief provided to the class is adequate”); absent class members maintain the right to opt out of a class action and to pursue their individual claims, Fed. R. Civ. P. 23(c)(2)(B)(v), (e)(4); and any class member may object to a proposed class settlement, Fed. R. Civ. P. 23(e)(5)(A). See Travis, 284 F. Supp. 3d at 344-45 (explaining why mere membership in a class proposed for settlement does not generally impair parties’ interest and collecting cases holding the same); Athale v. Sinotech Energy Ltd., No. 11 Civ. 05831 (AJN), 2013 WL 2145588, at *2 (S.D.N.Y. May 16, 2013) (denying intervention where intervenor “does not distinguish or adequately explain why intervention is appropriate in lieu of exercising his rights to either opt out of the settlement or to object and be heard at the fairness hearing”); cf. Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 551 (1974) (noting that encouraging motions to intervene in class actions would “frustrate the principal function of a class suit” by occasioning “precisely the multiplicity of activity which Rule 23 was designed to avoid”). Even without intervention, this suite of rights and protections remains available to Intervenors, who may choose to opt out of any settlement and pursue their own lawsuit unimpeded. Of course, Intervenors may lose out on the opportunity to serve as lead plaintiffs in a damages class action alleging the same harms — and their counsel may therefore be unable to reap the pecuniary benefit of their investigation into Mowi’s allegedly misleading practices. But those interests are not ones that Rule 24(a) protects. See, e.g., In re Toyota Hybrid Brake Litig., No. 20 Civ. 127, 2020 WL 6161495, at *15 (E.D. Tex. Oct. 21, 2020) (holding such interest incompatible with Rule 24(a)’s “substantive conception of an interest”); Calderon, 2020 WL 2792979, at *4, *6; Travis, 284 F. Supp. 3d at 343. Intervenors thus have not shown that, absent intervention, this case may impair any interest of theirs that is “direct, substantial, and legally protectable.” The cases Intervenors cite are not to the contrary. In two, the Court granted permissive, not mandatory, intervention, without ruling on the former. See Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950 (AT) (JCF), 2015 WL 4619663, at *4 (S.D.N.Y. Aug. 3, 2015) (“I need not decide whether the interests of absent class members are sufficiently at risk to compel intervention as of right[.]“), aff’d, 2016 WL 11645644 (S.D.N.Y. June 6, 2016);5 Int’l Design Concepts, LLC v. Saks Inc., 486 F. Supp. 2d 229, 234 (S.D.N.Y. 2007) (holding, outside the class-action context, that the court “need not determine whether intervention as of right under Rule 24(a) is warranted”). In another, the Court found that absent class members’ interests were at risk because the named plaintiff had died. See Diduck v. Kaszycki & Sons Contractors, Inc., 149 F.R.D. 55, 58 (S.D.N.Y. 1993) (holding that Rule 23 permits intervention in some cases and finding that intervenors’ interest “can certainly not be protected by the deceased Mr. Diduck”). None, however, held that intervenors’ interests risked impairment simply because they were absent class members. Independently, Intervenors have also not shown that the existing plaintiffs fail to adequately represent their interests. Intervenors’ arguments on this point fall into two categories. First, they claim that existing plaintiffs’ counsel may have colluded with Mowi to give Mowi the benefit of a “reverse auction” settlement,6 citing plaintiffs’ allegedly “copycat” complaint and the lack of discovery completed before settlement. See Int. Mem. at 8-10. Second, they note certain weaknesses that purportedly limit existing plaintiffs’ bargaining power. Those include that Tomlinson is from Oklahoma — casting doubt on her ability to represent a nationwide class against Mowi, which is not subject to general jurisdiction in New York — and that Intervenors are superior candidates to represent New York and California consumers. See id. at 8, 10-13. “[T]he burden to demonstrate inadequacy of representation is generally speaking ‘minimal[.]‘” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 179 (2d Cir. 2001) (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). But the Second Circuit has “demanded a more rigorous showing of inadequacy in cases where the putative intervenor and a named party have the same ultimate objective.” Id. (collecting cases). “Where there is an identity of interest, as here, the movant to intervene must rebut the presumption of adequate representation by the party already in the action.” Id. at 179-80. The Circuit has not set forth an “exhaustive list” of what may suffice to overcome that presumption, but generally “evidence of collusion, adversity of interest, nonfeasance, or incompetence may suffice to overcome the presumption of adequacy.” Id. at 180; see Nat. Res. Def. Council, Inc. v. N.Y. State Dep’t of Env’t Conservation, 834 F.2d 60, 62 (2d Cir. 1987) (“So long as the party has demonstrated sufficient motivation to litigate vigorously and to present all colorable contentions, a district judge does not exceed the bounds of discretion by concluding that the interests of the intervenor are adequately represented.”). Here, both plaintiffs and Intervenors share the same interests: establishing that Mowi’s representations that its smoked-salmon products are sustainable, all-natural, and Maine-sourced are misleading, and obtaining relief on behalf of themselves and a putative class as a remedy for Mowi’s alleged wrongs. Thus, Intervenors bear the burden of showing that the existing plaintiffs or their counsel are inadequate. Intervenors have failed to carry that burden. For the most part, they challenge plaintiffs’ adequacy based on Intervenors’ concerns about the process through which plaintiffs reached the pending settlement agreement with Mowi. But those concerns are largely speculative or conclusory. And, critically, many are refuted by the record. First, Intervenors note generally that plaintiffs admit they worked “in consultation with Defendants” to craft the SAC in conformity with their agreement, and specifically that plaintiffs and Mowi may have added Tomlinson as a plaintiff strategically to moot the claims of consumers, like Intervenors, whom Neversink, as a business, may not have been able to represent. See Int. Mem. at 8. But the fact that plaintiffs here worked with Mowi to amend the contours of their claims shows only that they reached a negotiated resolution; it does not prove improper collusion or misfeasance in doing so. And, in certain respects, adding Tomlinson strengthened the complaint. As Intervenors argue, Neversink may have been poorly situated, on its own, to represent a class of individual purchasers. See id. (“Neversink General Store is a New York business whose interests necessarily diverge from those of individual consumers[.]“).7 Second, Intervenors accuse plaintiffs’ counsel of copying and pasting a substantial portion of their complaint from Intervenors’ counsel’s complaint in the DC Action, and that such conduct bespeaks a lack of adequacy. Id. at 8-9. In support, they cite filings by unhappy proposed intervenors in other, unrelated cases who accused plaintiffs’ counsel of similar tactics. Id. at 9-10. But the sole case that Intervenors rely on for the notion that copycat filings provide a basis for finding inadequacy is far afield. There, the court (considering preliminary approval of a class settlement, not intervention) found “an unusually close and long-standing working relationship between” plaintiff and his counsel, extending to 36 other lawsuits, such that plaintiff “may well have felt some pressure to accept the proposed settlement”; that plaintiff’s counsel had engaged an expert “convicted of mail and Medicare fraud” and whose medical license had been revoked in several states; and that the lead plaintiff likely gave false testimony in a deposition. See Aliano v. CVS Pharmacy, Inc., No. 16 Civ. 2624 (FB) (SMG), 2018 WL 3625336, at *3, *6-7 (E.D.N.Y. May 21, 2018). The Aliano court also noted that the existing plaintiff had drafted a “copycat” complaint and “rushed to reach a settlement.” Id. at *6. But those facts were far from the impetus behind the decision to deny preliminary approval. By contrast, courts have often denied intervention in cases making similar allegations on sparser records of inadequacy. See, e.g., Rudolph, 2019 WL 1416986, at *1 (finding representation adequate despite fact that intervenors “view [plaintiff's] action as a copycat action and suggest that the parties to the instant action are likely to try to settle the action to the detriment of the proposed intervenors”); Allen v. Hyland’s Inc., No. 12 Civ. 1150 (DMG), 2012 WL 12887827, at *2-3 (C.D. Cal. Aug. 28, 2012) (same despite intervenors’ claim of copycat filings and suspicions of reverse auctioning). Nor does Intervenors’ citation to other litigants’ accusations about plaintiffs’ counsel in other cases prove that such behavior was improper in those cases — let alone imply litigation misconduct here. In fact, in one such recent case, the court rejected intervention premised on those accusations of inadequacy. See T.K. ex rel. v. Bytedance Tech. Co., No. 19 Civ. 7915, 2021 WL 1172767, at *6 (N.D. Ill. Mar. 29, 2021) (intervenor’s interests not impaired given Rule 23 protections and no lack of adequate representation because intervenor “makes no showing of collusion or nonfeasance on the part of any party to the suit”).8 Notably, Intervenors do not cite any cases in which plaintiffs’ experienced counsel were held to be inadequate. See Pl. Mem. at 14-15 (listing successful class actions litigated by plaintiffs’ counsel); Dkts. 67-1, Ex. 2 (same), 67-2
