TINA L. NICHOLSON, MICHAEL ARMSTRONG, and MERRILL J. FOWLER, on
behalf of themselves and all others similarly situated in North
Carolina
Plaintiffs,
v
.
F. HOFFMANN-LAROCHE, LTD., et al.
Defendants.
and
STATE OF NORTH CAROLINA, ex rel. ROY COOPER, ATTORNEY GENERAL,
Plaintiff,
v.
F. HOFFMANN-LAROCHE, INC., et al.,
Defendants.
Stubbs & Perdue, P.A., by Jason Hendren and Michael Malone and
Law Offices of George A. Barton, P.C., by George A. Barton,
for appellant.
Helms, Mullis & Wicker, PLLC, by William C. Mayberry, Peter J.
Covington, and Jason Evans and Mayer, Brown, Rowe & Maw, by
Mary K. Mandeville, for defendant-appellees.
James F. Wyatt, III and Straus & Boies, LLP, by David Boies,
Timothy Battin, Ian Otto, and Michael Straus, for plaintiffs-
appellees.
Attorney General Roy Cooper, by Assistant Attorney General K.
D. Sturgis, for the State of North Carolina-appellees.
WYNN, Judge.
Bill Beaver, appellant, contends the trial court erred in
denying his motion to intervene. Because appellant's appeal is
interlocutory, we hereby dismiss his appeal. On 5 March 1999, Tina Nicholson, a North Carolina resident
and a consumer of various vitamin products, filed a class action
case against the major manufacturers of those vitamin products,
based upon an alleged price fixing and market allocation conspiracy
that occurred during the 1990s.
(See footnote 1)
The complaint requested treble
damages based on the defendants' alleged violations of the North
Carolina antitrust laws, N.C. Gen. Stat. § 75-1 et seq., on behalf
of herself and all similarly situated consumers in North Carolina.
(See footnote 2)
Shortly afterwards, the parties agreed to a stay of the trial court
proceedings pending the outcome of settlement discussions.
On 10 October 2000, Class Counsel, along with the State
Attorneys General, entered into a Master Settlement Agreement with
seven Defendants. The Master Settlement Agreement provided for a
recovery of more than $187 million for the benefit of indirect
purchasers of vitamins. Under the terms of the settlement, class
members were divided into two separate subclasses, consisting of a
commercial settlement class and a consumer settlement class. The
members of the North Carolina Commercial Class would be eligible to
file claims against a multistate claim fund, while members of the
North Carolina consumer class would benefit from two cy pres
distributions. The first, a $7,584,000 payment, would be
distributed to nonprofit corporations, charitable organizationsand/or political subdivisions of North Carolina for the express
purpose of improving the health and nutrition of North Carolina
citizens or the advancement of nutritional and dietary science in
the State. The second, a $705,000 payment, would be distributed by
the North Carolina Attorney General's Office for the benefit of
injured consumers and/or injured commercial purchasers (the State
Economic Impact Fund).
On 30 May 2001, plaintiffs requested the trial court grant
preliminary approval of the proposed settlement. The trial court
granted preliminary approval on 14 June 2001. Appellant moved to
intervene on 17 July 2001 for the purposes of (1) objecting to the
proposed consumer class settlement; and (2) acting as the named
representative of the North Carolina Consumer Class with his
counsel. The trial court denied appellant's motion on 10 September
2001; he appealed.
The trial court's order denying appellant's motion to
intervene is interlocutory because it has not determined the entire
controversy among all parties. See Alford v. Davis, 131 N.C. App.
214, 216, 505 S.E.2d 917, 919 (1998). “Although interlocutory
orders are generally not immediately appealable, immediate
appellate review may be granted where the order adversely affects
a substantial right which appellant may lose if an appeal is not
granted.” Id., N.C. Gen. Stat. § 1-277; 7A-27(d)(2001).
Appellant argues a substantial right is affected because he
contends “an objecting class member does not have standing to
appeal from a trial court order granting final approval to a class
settlement unless that class member has been permitted to intervenein the class action proceeding.”
Whether an objecting class member has standing to appeal from
a trial court order granting final approval to a class settlement
without having first intervened into the class action has not been
decided in North Carolina. “As this specific issue has not been
decided by our State's appellate courts, we consider decisions from
other jurisdictions. In that Rule 24 of the North Carolina Rules
of Civil Procedure is virtually identical to Rule 24 of the Federal
Rules of Civil Procedure, we appropriately look to the federal
court decisions for guidance.” Harvey Fertilizer and Gas Co. v.
Pitt Cty., _____ N.C. App. _____, 568 S.E.2d 923, 927 (2002). The
United States Supreme Court, in its interpretation of Fed. R. Civ.
P. 23(b) & 24, recently held “nonnamed class members who have
objected in a timely manner to approval of the settlement at the
fairness hearing have the power to bring an appeal without first
intervening.” Devlin v. Scardelletti, 122 S.Ct. 2005, 2013 (2002).
We are guided by Scardelletti in holding that likewise, appellant,
upon objecting in a timely manner at the fairness hearing to the
approval of the settlement, would have the right to appeal without
intervening in this action. Accordingly, since there is no
substantial right affected, we dismiss appellant's appeal as
interlocutory.
Dismissed.
Judges BRYANT and GEER concur.
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