Hering v. Walgreens Boots Alliance, Inc., —F. Supp. 3d—, 2018 WL 5276189 (M.D. Pa. 2018). This decision follows from a decision issued earlier this summer and reviewed in a prior post. In that earlier decision, Judge Jones dismissed claims with respect to Rite Aid’s statements and held that only Walgreens’ statements made after October 2016 were actionable. In its most recent decision, the Court held that, since the named plaintiff’s last alleged stock purchase predated October 2016, he no longer had standing. Further, the Court denied a motion to intervene filed by putative class members, but noted that the proposed intervenors were free to file their own actions.
The named plaintiff did not contest that, as a result of the Court’s earlier decision, he had lost constitutional and statutory standing, but argued that the appropriate remedy was to proceed to class certification and discovery to identify a class representative with standing to pursue claims based on Walgreens’ post-October 2016 statements. The Court explained that while a named plaintiff’s loss of standing generally requires dismissal of a class action, certain exceptions may apply if other individuals (who would be part of the proposed class) have standing to pursue a claim. These exceptions are for injuries that are inherently transitory in nature or capable of repetition but evading review, as well as situations in which a defendant is able to “pick off” a named plaintiff such as through settlement. However, the Court concluded that none of these exceptions applied here, noting in particular that the named plaintiff lost standing as a result of the Court’s dismissal of claims based on non-actionable statements; thus, the action was moot because the named plaintiff no longer had standing with respect to his individual claim or with respect to seeking class certification. Id. at *3-4.
Plaintiff also argued, in the alternative, that the Court could allow other parties, who had standing, to intervene to pursue the claims not dismissed by the Court. The Court, however, denied the motion to intervene, finding that other potential plaintiffs could not intervene as of right because their interests would not be impaired by dismissal — they could simply file a new action. Id. at *5. Moreover, the Court did not consider the fact that plaintiff initially had standing to be relevant, because it did not “see a functional difference between a plaintiff who lacks initial standing” and a plaintiff “who loses standing after certain claims are dismissed. In both circumstances, there is no viable claim for the only plaintiff in the case and, consequently, no ‘case’ or ‘controversy’ before the Court.” Id. at *5. The Court therefore held that permissive intervention was not available.