An appellate panel upheld the denial of the New Jersey Realtors' motion to intervene in a putative class action claiming agents were misclassified as independent contractors by Weichert.

"Having reviewed NJR's arguments in light of the record and applicable principles of law, we conclude that NJR does not satisfy standing as prescribed by Rule 4:33-3; nor does it meet all four requirements for intervening of right," wrote the panel of Appellate Division Judges Carmen Messano, Mitchel Ostrer and Ronald Susswein in Kennedy v. Weichert.

NJR, described in the decision as "a trade association representing roughly 55,000 members that includes real estate salespersons and brokers," opposed the plaintiff's position in the case.

The panel did allow NJR to serve as amicus in the appeal, from an interlocutory order in the Essex County Law Division.

Darren Barreiro and Barry Goodman of Greenbaum Rowe Smith & Davis in the firm's Holmdel office represented NJR.

"While NJR realtors disagree with the finding that it has no interest in the case, NJR is satisfied in the court's ruling that it can participate as amicus curiae and participate in the appeal," said Barreiro in a phone call.

John Birmingham of Foley & Lardner in Michigan represented Weichert. Ravi Sattiraju of Sattiraju & Tharnay in East Windsor represented plaintiff James Kennedy II. Neither was available for comment.

NJR sought intervention based on concerns that "the precedential or persuasive effect of a pro-plaintiff result will harm its members' interests," according to the decision.

Kennedy alleged in his March 2019 complaint that Weichert misclassified him and others as independent contractors, wrongfully withholding or diverting wages in violation of the New Jersey Wage Payment Law. It contends that employment status should be determined by the "ABC test" per N.J.S.A. 43:21-19(i)(6) and the Supreme Court's 2015 decision in Hargrove v. Sleepy's.

NJR, in moving to intervene in the action, sought to file a counterclaim seeking a declaration under the Declaratory Judgment Act that an exemption in N.J.S.A. 43:21-19(i)(7)(K) applied to licensed real estate brokers.

Superior Court Judge Garry Furnari denied intervention, concluding that NJR had no interest in the relationship between Weichert and Kennedy and the putative class, or "the property or transactions at issue in the case." Furnari said NJR's sole interest was "'whether the Supreme Court's decision [in Sleepy's] applies to them,'" according to the decision. The judge also said allowing intervention would complicate the matter.

The panel in a per curiam decision on Feb. 21 said it agreed with Furnari on all counts.

NJR filed a timely appeal but "[i]n all other respects, it has failed to satisfy the requirements for intervention of right," the panel said. "As a threshold matter, NJR lacks standing to intervene."

"We 'will not … entertain proceedings by plaintiffs who are mere intermeddlers, or are merely interlopers or strangers to the dispute,'" the panel said, quoting case law.

"NJR has no real dispute with Kennedy or the putative class of Weichert salespersons. … NJR as an association has no contract with Kennedy or the putative class. NJR would suffer no alleged injury to itself if Kennedy prevails."

The panel also said that no individual NJR member—other than Weichert itself—would have standing to sue Kennedy over his entitlement to damages.

"Were NJR to intervene, it would put in issue contractual relationships of which Kennedy and the putative class have no knowledge," said the opinion.

The panel also said that NJR filing a declaratory judgment action has no bearing on its right to intervene.

"NJR has no dispute with Kennedy, and would lack standing to file its own claim, on behalf of itself or its members, against Kennedy," the judges wrote. "Even if NJR had standing, it has failed to 'claim[] an interest relating to the property or transaction which is the subject of the action.'"

The judges said the trial court's decision will have no precedential effect on any other court as NJR had feared.

Lastly, regarding its motion to intervene of right, NJR didn't demonstrate that Weichert will not adequately represent its interests, said the panel.

"NJR has not demonstrated that its ultimate objective differs from Weichert's, or that its interests differ with respect to the law governing the relationship between salespersons and brokers," wrote the panel. "In sum, the trial court correctly denied NJR's motion to intervene of right."

The panel said NJR's argument on permissive intervention "fares no better," but it did say—and Kennedy conceded—that NJR's proper role in the case is amicus curiae.

"Therefore, we sua sponte grant NJR permission to do so," wrote the panel. "NJR may file an amicus brief in ten days. Kennedy and Weichert may file a reply within seven days thereafter. NJR may present oral argument."