Terri Kirsch v. Robert Dean

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0231n.06
No. 17-5650
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TERRI KIRSCH,
Plaintiff-Appellee,
v.
ROBERT DEAN,
Defendant,
ZFX, INC.,
Proposed Intervenor-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF KENTUCKY
OPINION
Before: MOORE, CLAY, and KETHLEDGE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. In this dispute between two fifty-percent
shareholders of a corporation, we have been asked to decide whether the corporation may
intervene, at the behest of one of the shareholders, for the sole purpose of moving to disqualify
counsel for the other shareholder based on a purported violation of the attorney-client
relationship. The district court denied the motion to intervene. Because the corporation’s
motion to intervene was untimely and thus failed to satisfy the requirements for either absolute
or permissive intervention, and because the corporation is incorrect to argue that it may intervene
without satisfying those basic requirements, we AFFIRM.
I. BACKGROUND
In 2004, Terri Kirsch and Robert Dean became 50% shareholders in ZFX, Inc. (“ZFX”),
a “flying effects service provider” incorporated and organized under Nevada laws. R. 1 (Compl.

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¶¶ 7, 11–12) (Page ID #3). ZFX operates out of a warehouse facility in Louisville, Kentucky,
owned by ZFX Property, which Kirsch and Dean also allegedly co-own. Id. ¶¶ 15, 17, 39 (Page
ID #3–4, 7). By August 2015, Kirsch and Dean were negotiating a potential sale of Kirsch’s
interests in ZFX and ZFX Property to Dean. R. 5 (Verified Counterclaim ¶ 40) (Page ID #42).
In February 2016, Kirsch executed agreements to effectuate the sale. R. 1 (Compl. ¶ 28–29)
(Page ID #5). A week after he received the executed documents, but before taking any action on
them, Dean removed Kirsch’s access to ZFX’s computer system, email system, and financial and
banking records. Id. ¶ 32 (Page ID #6). Dean then emailed Kirsch to say that he had discovered
“a number of financial irregularities that [had] occurred ‘on [her] watch,’” and to inform her that
he would not “execute the draft agreements or consummate the proposed transaction until the
financial irregularities had been fully remedied.” Id. ¶ 33 (Page ID #6) (alteration in original).
Soon thereafter, ZFX’s General Manager cut off Kirsch’s salary and benefits. Id. ¶ 34 (Page ID
#6).
Invoking diversity jurisdiction, Kirsch sued Dean in federal district court in May 2016,
seeking a declaration that she is a 50% owner, director, and President of ZFX and a 50% owner
and member of ZFX Property. Id. ¶ 39 (Page ID #7). She also alleged that Dean breached his
fiduciary and common-law duties by freezing her out of the businesses and “rendering her shares
and units worthless.” Id. ¶¶ 46, 48–50 (Page ID #8). Dean, for his part, filed counterclaims
against Kirsch, in which he alleged that Kirsch had breached her fiduciary duties, wasted
corporate assets, and aided and abetted another employee’s misuse of corporate funds. R. 5
(Verified Counterclaim ¶¶ 78, 88, 93) (Page ID #46–49). In addition to damages, Dean sought a
declaratory judgment that he is ZFX’s President with authority to determine who should and

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should not serve as an employee of ZFX. Id. ¶¶ 98,105 (Page ID #49–50). In a separate filing,
Dean moved to partially dismiss Kirsch’s complaint, which the district court mostly denied.
R. 10 (Mem. Op. at 11) (Page ID #109).
After the district court decided Dean’s motion to dismiss, Dean answered Kirsch’s
complaint and submitted verified amended counterclaims, in which, inter alia, Dean claimed that
Kirsch had breached a “Stock Restriction Agreement” (“SRA”) that Dean and Kirsch had signed
in 2012. R. 13 (Am. Verified Counterclaim ¶¶ 122–36) (Page ID #138–41). According to Dean,
the SRA—which Dean attached to his amended counterclaims—contemplated a buy-out
procedure in the event a shareholder’s employment with ZFX was terminated and required all
disputes related to the agreement to be arbitrated in Jefferson County, Kentucky. Id. ¶¶ 124–27
(Page ID #138–39). Dean asserted that Kirsch’s claims regarding her status as a 50% owner,
director, and President of ZFX and Dean’s freezing her out of the company without buying her
shares implicate the SRA’s buy-out provisions, and are therefore governed by the SRA’s
arbitration provision. Id. ¶¶ 130–34 (Page ID #140). As a result, Dean counterclaimed against
Kirsch for materially breaching the SRA’s arbitration clause by pursuing these claims in federal
court. Id. ¶ 135 (Page ID #140).
A week later, Dean, citing the SRA’s arbitration clause, moved to compel arbitration of
Kirsch’s claims related to ZFX and to stay further proceedings pending completion of the
arbitration. R. 14–1 (Def. Mem. re Mot. to Compel Arb. at 3) (Page ID #164). Kirsch objected
to Dean’s attempts to compel arbitration and, in a separate filing, moved to dismiss Dean’s
breach-of-contract claim under Federal Rule of Civil Procedure 12(b)(6). R. 18 (Pl. Resp. to
Mot. to Compel Arb. at 8, 13–17) (Page ID #243, 248–52; R. 17-1 (Pl. Mem. re Mot. to Dismiss)

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(Page ID #181–99). The district court denied Kirsch’s partial motion to dismiss in December
2016. R. 50 (Mem. Op. at 1) (Page ID #941).
While his motion to compel arbitration was fully briefed and pending before the district
court, Dean moved to disqualify Kirsch’s counsel. In support of his motion, Dean attached email
exchanges between Kirsch and an attorney at Middleton Reutlinger—the firm representing
Kirsch in this action—in which Kirsch asked the attorney to review and provide legal advice on
the SRA after Kirsch and Dean had revised the document in 2012, and the Middleton Reutlinger
attorney agreed “to look at your revised agreement today and let you know of any suggestions I
might have.” R. 20-3 (Ex. 1) (Page ID #282–99); R. 20-4 (Ex. 2) (Page ID #300–02); R. 20-5
(Ex. 3) (Page ID #303–05); R. 22 (Ex. 4) (Page ID #347–48). The attached emails included a
later email from the Middleton Reutlinger attorney to Kirsch outlining her eight “observations
about the agreement.” R. 22 (Ex. 4) (Page ID #348). Though Dean was copied on the original
emails between Kirsch and the Middleton Reutlinger attorney, he explained that he remembered
Middleton’s representation regarding the SRA only after he reviewed the 2012 email chain in
late September 2016. R. 20-1 (Def. Mem. re Mot. to Disqualify Pl.’s Counsel at 4 n.3) (Page ID
#266); R. 20-6 (Dean’s Aff. ¶¶ 5–6) (Page ID #307). In fact, he swore that he had not even
remembered that the SRA itself existed until September 1, 2016. R. 20-6 (Dean’s Aff. ¶ 4) (Page
ID #307).
According to Dean, Middleton represented Kirsch, Dean, and ZFX when it reviewed and
provided advice on the SRA in 2012, and therefore Middleton could not legally represent Kirsch
in her current efforts “to circumvent [the] contract” by objecting to Dean’s motion to compel
arbitration under the SRA. R. 20-1 (Def. Mem. re Mot. to Disqualify Pl.’s Counsel at 14) (Page

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ID #276). Holding otherwise, Dean argued, would allow Middleton Reutlinger to violate the
Kentucky Rules of Professional Conduct, which prohibit lawyers from representing a current
client “in the same or a substantially related matter in which that person’s interests are materially
adverse to the interests of the former client.” Id. at 5 (Page ID #267) (quoting KY. S. CT . R.
3.130(1.9(a)). Dean alternatively argued, in a footnote, that he should be able to assert
Middleton Reutlinger’s conflict with ZFX even if only the company (and not Dean) were
considered Middleton Reutlinger’s former client. Id. at 5 n.6. Citing a host of non-binding, out-
of-circuit cases, Dean argued that non-clients may sometimes “assert [a] former client’s conflict
as against an opposing party’s counsel” and insisted that requiring ZFX to “file a separate motion
to protest Middleton’s conflict” would “exalt form over substance” because “Dean is ZFX’s
President and, when the Stock Restriction Agreement is enforced, will be ZFX’s sole
shareholder.” Id. Accordingly, Dean asked the district court to disqualify Middleton Reutlinger
as Kirsch’s counsel and to “strike the filings that Middleton has made on Kirsch’s behalf,
including but not limited to Kirsch’s Complaint, Kirsch’s response to Dean’s motion for partial
dismissal, Kirsch’s motion to dismiss, and Kirsch’s response to Dean’s motion to compel
arbitration and to stay further proceedings.” Id. at 15 (Page ID #277) (internal citations omitted).
In response, Kirsch argued that Middleton Reutlinger represented only ZFX in
connection with its review of the SRA—not Dean or Kirsch in their individual capacities. R. 31
(Pl. Resp. to Def. Mot. to Disqualify at 2) (Page ID #465). As a result, Dean was not a “former
client” and was not “entitled to even assert an objection.” Id. Kirsch further argued that Dean’s
delay in objecting to Middleton Reutlinger’s involvement in the case amounted to waiver;
Middleton’s prior representation was not “substantially related” to the current case; Dean did not

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previously provide Middleton Reutlinger with confidential information that could be materially
adverse to his current interests; Dean failed to identify a “specific impropriety” associated with
Middleton’s conduct; and Dean’s own attorneys had also previously represented ZFX in other
matters, and therefore his “arguments for Middleton Reutlinger’s disqualification warrant the
disqualification of his own attorneys.” Id. at 2–3 (Page ID #465–66).
The district court agreed with Kirsch. In an opinion issued on December 7, 2016, the
district court denied Dean’s motion to disqualify Middleton Reutlinger because Dean was not
Middleton Reutlinger’s former client and thus had no grounds to pursue disqualification. R. 46
(Mem. Op. at 7) (Page ID #891). In addition, the district court determined that “[t]he available
evidence fails to indicate that the revisions to the Stock Restriction Agreement suggested by
Middleton Reutlinger relate to any dispute in this litigation,” nor does it “show that Middleton
Reutlinger acquired any confidential information from Dean when it reviewed the document.”
Id. The district court also rejected Dean’s contention that he could assert Middleton Reutlinger’s
conflict of interest on behalf of ZFX. As the district court explained,
Middleton Reutlinger may have a conflict of interest in representing Kirsch and
ZFX. But ZFX is not a named party to this litigation and has not yet moved to
intervene. Moreover, the issue whether Dean is ZFX’s sole shareholder has not
yet been determined. Thus, whether Middleton Reutlinger has a conflict of
interest necessitating disqualification because of its representation of ZFX
regarding the Stock Restriction Agreement is irrelevant at this time to the present
motion.
Id. at 8 (Page ID #892). The district court therefore denied Dean’s motion to disqualify Kirsch’s
counsel and strike its filings.
Viewing the district court’s discussion of Middleton Reutlinger’s prior relationship with
ZFX as “essentially invit[ing] a motion to intervene from ZFX,” ZFX moved on December 14,
2016 to intervene in the case “for the purpose of asserting [Middleton’s] conflict of interest.”

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R. 49-1 (Proposed Intervenor’s Mem. re Mot. to Intervene at 1) (Page ID #905). In June 2017,
the district court denied ZFX’s motion to intervene and motion to disqualify Kirsch’s counsel,
explaining that it did not “‘invite[]’ ZFX, Inc. to intervene to assert Middleton Reutlinger’s
‘disqualifying conflict of interest,’” but instead “merely suggested that a conflict of interest could
arise if ZFX, Inc. were made a party to the current litigation.” R. 85 (Mem. Op. at 12) (Page ID
#1310). “In moving to intervene solely to assert an alleged conflict of interest involving
Middleton Reutlinger after Dean failed to successfully do so,” the district court held, “ZFX, Inc.
has not asserted a claim against Kirsch that is justiciable or a direct interest that is protectable
under Rule 24.” Id. The district court further observed that allowing ZFX to intervene could
raise the “ethical question” of whether ZFX’s counsel could continue to represent Dean and ZFX
given that “Kirsch purportedly still owns 50% of ZFX, Inc.,” and therefore Dean and ZFX’s
counsel “would possibly be representing the half interest Kirsch would have in such a claim
while opposing Kirsch otherwise.” Id. Citing its refusal to allow ZFX to intervene in the
litigation, the district court also denied ZFX’s motion to disqualify Kirsch’s counsel. Id.
Dean and ZFX then appealed the district court’s denial of Dean’s and ZFX’s motions to
disqualify Kirsch’s counsel and its denial of ZFX’s motion to intervene. R. 87 (Notice of Appeal
at 1) (Page ID #1313). We issued an order directing Dean and ZFX to show cause why their
interlocutory appeals should not be dismissed for lack of appellate jurisdiction. D.E. 8 at 2. In
response, Dean and ZFX argued that binding case law treats denials of motions to intervene as
immediately appealable. D.E. 20 at 5. Dean and ZFX further insisted that we could exercise
pendent appellate jurisdiction over Dean’s and ZFX’s motions to disqualify Kirsch’s trial
counsel because they planned to move to disqualify Middleton Reutlinger as Kirsch’s appellate

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counsel, and “[i]t follows that where a motion to disqualify appellate counsel mirrors a
previously filed motion to disqualify trial counsel, the Court’s resolution of the former motion
‘necessarily and unavoidably’ decides the latter motion.’” Id. at 9. As promised, Dean and ZFX
then filed a motion to disqualify Kirsch’s appellate counsel in this court. D.E. 22.
On October 25, 2017, we withdrew the show cause order as to ZFX’s appeal of the
district court’s denial of its motion to intervene, reasoning that “ZFX may have raised a colorable
issue over which we can exercise jurisdiction.” D.E. 29 at 2. We declined, however, to exercise
pendent appellate jurisdiction over the district court’s denial of Dean’s and ZFX’s motions to
disqualify Kirsch’s counsel “because the correctness of those rulings is not determinative of
ZFX’s absolute right to intervene.” Id. We also denied Dean and ZFX’s joint motion to
disqualify Kirsch’s appellate counsel because “there is no evidence that confidential information
was exchanged in Middleton’s prior work with Kirsch and ZFX,” and therefore “disqualification
is not appropriate.” Id. at 3. The appeal of the district court’s denial of ZFX’s motion to
intervene thus began.
Previously, the district court granted Dean’s motion to compel arbitration of Kirsch’s
claims related to ZFX and to stay further proceedings in district court as to those claims, all of
which “arose from Dean’s failure to purchase her ZFX, Inc. shares, an event that implicated the
arbitration provision found in the Stock Restriction Agreement.” R. 85 (Mem. Op. at 3) (Page
ID #1301); see also R. 54 (Mem. Op. at 10) (Page ID #972). The district court subsequently
stayed litigation of all other claims and counterclaims pending resolution of arbitration, including
Dean’s counterclaim that Kirsch breached the SRA by filing suit in district court. R. 85 (Mem.
Op. at 13) (Page ID #1311); R. 82 (Order at 6) (Page ID #1266).

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Kirsch’s claims related to ZFX proceeded through arbitration, and on February 9, 2018,
the arbitrator issued an interim award in Dean’s and ZFX’s favor on those claims. R. 92-1
(Interim Award) (Page ID #1333–43). Dean filed notice of the Interim Award in the district
court, R. 92 (Notice of Submission of Arb. Award) (Page ID #1330), and ZFX cited and attached
a copy of the Interim Award as “Exhibit A” to its reply brief in this appeal, Reply Br. at 3, 6, Ex.
A. Kirsch then moved to strike the reply brief or, in the alternative, “to strike Exhibit A to the
Reply and all arguments based upon it.” D.E. 38 at 1. ZFX responded to Kirsch’s motion and
simultaneously moved to supplement the record with the Interim Award. D.E. 39. Kirsch
replied. D.E. 40; D.E. 41. Since then, the arbitrator has issued a Final Award in Dean’s and
ZFX’s favor, which ZFX attached as an exhibit to its reply brief on its motion to supplement the
record. D.E. 42. Dean also moved to confirm the Final Award in district court. R. 96 (Mot. to
Confirm Arb. Award) (Page ID #1359). Kirsch’s motion to strike ZFX’s appellate reply brief, in
whole or in part, and ZFX’s motion to supplement the appellate record with the Interim Award
remain pending before this court.
II. ANALYSIS
ZFX argues that the district court erred in three ways in denying its motion to intervene:
First, the district court purportedly failed to recognize that ZFX had an absolute right to intervene
under Rule 24(a) of the Federal Rules of Civil Procedure. Second, the district court allegedly
abused its discretion in denying ZFX’s motion for permissive intervention under Rule 24(b).
And last, the district court supposedly should have granted ZFX’s motion to intervene even if it
could not satisfy Rule 24’s requirements because intervention by former clients seeking to raise

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an attorney’s conflict of interest should be authorized as a matter of course. We reject these
arguments and AFFIRM the district court’s denial of ZFX’s motion to intervene.
A. Jurisdiction and Standard of Review
“The Supreme Court has held that an order completely denying intervention is
immediately reviewable by way of an interlocutory appeal.” Sales v. Marshall, 873 F.2d 115,
120 (6th Cir. 1989). We generally review de novo the denial of a motion to intervene as of right.
Purnell v. City of Akron, 925 F.2d 941, 945 (6th Cir. 1991). “The denial of permissive
intervention,” by contrast, “should be reversed only for clear abuse of discretion by the trial
judge.” Id. at 951. To conclude that the district court abused its discretion, we must be “left
with the definite and firm conviction that the court below committed a clear error of judgment in
the conclusion it reached upon a weighing of the relevant factors or where the trial court
improperly applies the law or uses an erroneous legal standard.” Coal. to Defend Affirmative
Action v. Granholm, 501 F.3d 775, 779 (6th Cir. 2007) (quoting Paschal v. Flagstar Bank,
295 F.3d 565, 576 (6th Cir. 2002)).
B. Intervention as of Right
To intervene as a matter of right in a lawsuit under Federal Rule of Civil Procedure 24(a),
a proposed party must establish that:
(1) the motion to intervene is timely; (2) the proposed intervenor has a substantial
legal interest in the subject matter of the case; (3) the proposed intervenor’s
ability to protect that interest may be impaired in the absence of intervention; and
(4) the parties already before the court may not adequately represent the proposed
intervenor’s interest.
United States v. Michigan, 424 F.3d 438, 443 (6th Cir. 2005). Generally, we review a district
court’s denial of a motion to intervene de novo, except that we review a district court’s
determination of timeliness for an abuse of discretion. United States v. Tennessee, 260 F.3d 587,

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592 (6th Cir. 2001). Where, as here, the district court failed to make findings regarding
timeliness, the timeliness of the motion is also reviewed de novo. Blount-Hill v. Zelman, 636
F.3d 278, 283 (6th Cir. 2011); Johnson v. City of Memphis, 73 F. App’x 123, 131 (6th Cir.
2003). Although “Rule 24 should be ‘broadly construed in favor of potential intervenors,’”
Granholm, 501 F.3d at 779 (quoting Purnell, 925 F.2d at 950), a motion to intervene must be
denied if the intervenor cannot satisfy all four requirements above, Grubbs v. Norris, 870 F.2d
343, 345 (6th Cir. 1989).
Although the district court did not address the issue, “our consideration of timeliness in
the first instance is consistent with the Supreme Court’s admonition that the ‘court where the
action is pending must first be satisfied as to timeliness’ under Rule 24.” Blount-Hill, 636 F.3d
at 284 (quoting NAACP v. New York, 413 U.S. 345, 365 (1973)). We evaluate timeliness “in the
context of all relevant circumstances” and consider the following five factors:
(1) the point to which the suit has progressed; (2) the purpose for which
intervention is sought; (3) the length of time preceding the application during
which the proposed intervenors knew or should have known of their interest in the
case; (4) the prejudice to the original parties due to the proposed intervenors’
failure to promptly intervene after they knew or reasonably should have known of
their interest in the case; and (5) the existence of unusual circumstances militating
against or in favor of intervention.
Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990).
Here, the first factor weighs slightly in favor of Kirsch. We agree with ZFX that “[t]he
absolute measure of time between the filing of the complaint and the motion to intervene” is less
important to assessing timeliness than “what steps occurred along the litigation continuum
during this period of time.” Stupak-Thrall v. Glickman, 226 F.3d 467, 475 (6th Cir. 2000). We
disagree, however, with ZFX’s claim that “this case was in its infancy” when the motion to
intervene was filed. Appellant Br. at 14. By the time ZFX moved to intervene, the district court

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had already partially granted and partially denied Dean’s motion to dismiss, R. 10 (Mem. Op.)
(Page ID #99–109), denied Dean’s motion to disqualify Kirsch’s counsel, R. 46 (Mem. Op.)
(Page ID #885–92), and resolved several additional non-dispositive motions, R. 16 (Order) (Page
ID #178); R. 26 (Order) (Page ID #401–02); R. 27 (Mem. Op. & Order) (Page ID #403–08); R.
36 (Order) (Page ID #596); R. 45 (Order) (Page ID #871–73). Other fully briefed motions
pending before the district court included Kirsch’s motion to partially dismiss Dean’s
counterclaims, R. 17 (Pl. Mot. for Partial Dismissal of Am. Verified Counterclaim) (Page ID
#179–80), Dean’s motion to compel arbitration and to stay further proceedings in the district
court, R. 14 (Def. Mot. to Compel Arb.) (Page ID #160), and Kirsch’s motion to stay AAA
Arbitration proceedings pending the court’s ruling on Dean’s motion to compel arbitration and
stay further proceedings, R. 35 (Pl. Mot. to Stay AAA Arbitration) (Page ID #537). Although
discovery had not yet started—a marker that we have previously considered relevant in assessing
the timeliness of a motion to intervene, see Stupak-Thrall, 226 F.3d at 475—the district court had
already been asked to decide dispositive motions as to several of the parties’ claims and
counterclaims and to determine whether a significant portion of the case ought to proceed in a
different forum. This case is therefore unlike Mountain Top Condominium Association v. Dave
Stabbert Master Builder, Inc., 72 F.3d 361 (3rd Cir. 1995), which we previously cited with
approval and which authorized intervention as of right, even though “four years had passed
between the filing of the complaint and the motion to intervene,” because there had been “no
depositions taken, dispositive motions filed, or decrees entered during the four year period in
question.’” Stupak-Thrall, 226 F.3d at 475 (second quote quoting Mountain Top Condo. Ass’n,

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72 F.3d at 370)). Ultimately, while this first factor does not pull strongly in either direction, it
tilts slightly in Kirsch’s favor.
The second factor—the “purpose for which intervention is sought”—also favors Kirsch.
We have been somewhat inconsistent in our approach to this second inquiry, at times focusing on
whether “the movants have asserted a legitimate purpose for intervention,” Linton ex rel. Arnold
v. Comm’r of Health & Env’t, 973 F.2d 1311, 1318 (6th Cir. 1992), and at other times asking
whether the motion to intervene was timely in light of the stated purpose for intervening, see
Clarke v. Baptist Mem’l Healthcare Corp., 641 F. App’x 520, 527 (6th Cir. 2016) (holding
proposed intervenors’ motion to intervene was timely because they “sought intervention for the
limited purpose of appealing the denial of class certification,” while another proposed
intervenor’s motion to intervene was untimely—even though it was filed earlier in the case—
because she “attempted to intervene to participate as a class representative in her own right”); see
also Stupak-Thrall, 226 F.3d at 481 n.1 (Moore, J., dissenting) (“[T]he point of looking to the
purposes of intervention as a factor in the timeliness analysis is to determine whether the
proposed intervenors acted promptly in light of the purposes for which intervention was
sought.”). Under either framework, this factor works against ZFX’s cause.
ZFX’s purpose for intervening is “to disqualify Middleton as Terri Kirsch’s counsel.”
R. 49-1 (Mem. re Mot. to Intervene at 1) (Page ID #905). Other circuits have stated or suggested
that “[c]olorable claims of attorney-client and work product privilege qualify as sufficient
interests to ground intervention as of right,” and they very well may be right. In re Grand Jury
Subpoena, 274 F.3d 563, 570 (1st Cir. 2001); see also Celanese Corp. v. Leesona Corp. (In re
Yarn Processing Patent Validity Litig.), 530 F.2d 83, 86–88 (5th Cir. 1976) (noting that an

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outside party “could have intervened as of right under Rule 24(a) of the Federal Rules of Civil
Procedure, and it could have pressed for the disqualification of [its former attorney]” if it
believed that its former attorney was acting against its interest by representing a new client
seeking to challenge the validity of a patent belonging to the outside party, given that the
attorney had previously advised the outside party on how to protect the patent’s validity). Given
ZFX’s litigation strategy in this case, however, it is far from clear that it has a “colorable claim”
of a disqualifying attorney-client relationship with Middleton Reutlinger.
In urging this court to exercise pendent jurisdiction over the district court’s denial of its
motion to disqualify Middleton Reutlinger as Kirsch’s trial counsel, ZFX argued that its
anticipated motion to disqualify Middleton Reutlinger as Kirsch’s appellate counsel would
effectively decide its trial-level motion to disqualify because its “motion to disqualify appellate
counsel [would] mirror[] [its] previously filed motion to disqualify trial counsel.” D.E. 20 at 9.
Unfortunately for ZFX, we concluded that disqualification of Middleton Reutlinger on appeal
was “not appropriate.” D.E. 29 at 3. As we have already denied ZFX’s motion to disqualify
Middleton Reutlinger for the purposes of appeal—a motion that, in ZFX’s own words,
“mirror[ed]” its earlier motion to disqualify Middleton Reutlinger for the purposes of trial, D.E.
20 at 9—it is difficult to see how the district court could later grant ZFX’s nearly identical
motion to disqualify Middleton Reutlinger at trial without running afoul of our earlier order.
After all, although our earlier order is unpublished and therefore not binding on future panels,
see Crump v. Lafler, 657 F.3d 393, 405 (6th Cir. 2011), it is binding on the district court as law
of the case, see United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990) (“Under the doctrine of
the law of the case, a decision on an issue made by a court at one stage of a case should be given

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effect in successive stages of the same litigation.”). Given the seemingly insurmountable
challenges that ZFX would face in achieving its desired result, the “purpose” factor cuts against
allowing intervention. See Stupak-Thrall, 226 F.3d at 476–77 (criticizing proposed intervenor
for attempting to intervene based on an “unrealistic” and “highly unlikely” purpose).
Even if we were to ignore the above obstacles and treat ZFX’s stated purpose as
legitimate, we nevertheless conclude that ZFX failed to act “promptly in light of the purposes for
which intervention was sought.” Id. at 481 n.1 (Moore, J., dissenting); see also Clarke, 641 F.
App’x at 527. ZFX’s point in intervening—to disqualify Kirsch’s counsel and strike all filings
present counsel has made on Kirsch’s behalf—would significantly alter both the future and past
course of this litigation. It would require Kirsch to retain new counsel and would wreak havoc
on the current docket, which includes Kirsch’s complaint, answer to Dean’s counterclaims, and a
largely successful response to Dean’s motion to dismiss. Plainly, the prejudice and disruption
associated with ZFX’s requested relief would have been reduced had ZFX moved to intervene
before the parties had engaged in such extensive motions practice. Because a party seeking to
intervene to rewrite the course of a litigation must intervene sooner than, say, a party seeking to
intervene to preserve its interests on appeal, see Clarke, 641 F. App’x at 527, this factor points
strongly in Kirsch’s favor.
Third, we consider the length of time between when ZFX “knew or should have known
of [its] interest in the case” and the filing of its motion to intervene—a factor that again weighs
decisively against permitting intervention. See Jansen, 904 F.2d at 340. ZFX concedes that it
“learned of this lawsuit shortly after it was filed” but insists that it was “not aware that its
interests with respect to the SRA could be affected until September 28, 2016, when Kirsch

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opposed Dean’s motion to compel arbitration.” Appellant Br. at 16. This argument is
unavailing. ZFX was or should have been aware that its interest might be affected by the
litigation as soon as it learned of the lawsuit—i.e., roughly seven months before it moved to
intervene—because it knew or should have known that Kirsch’s counsel in the lawsuit had
previously represented ZFX in connection with the SRA.1 As we have held before, “the seven
months preceding the proposed intervenor[’s] motion to intervene during which [it] knew or
should have known of [its] interest renders [its] motion untimely.” Johnson, 73 F. App’x at 133;
see also Tennessee, 260 F.3d at 594 (“An entity that is aware that its interests may be impaired
by the outcome of the litigation is obligated to seek intervention as soon as it is reasonably
apparent that it is entitled to intervene.”).
In an effort to avoid this conclusion, ZFX argues that the third factor cannot weigh
against a finding of timeliness unless ZFX was “aware of the risk that [its] interest may be
affected by the litigation, and that [its] interest may not be fully protected by the existing
litigants.” Appellant Br. at 16 (quoting Stotts v. Memphis Fire Dep’t, 679 F.2d 579, 583 (6th Cir.
1982)) (alteration in original) (emphasis added by ZFX). ZFX contends that it was not aware of
1Dean knew or should have known about Middleton Reutlinger’s representation of ZFX on the SRA from
the very start of this litigation. Dean was copied on (1) Kirsch’s email to Dana Collins at Middleton Reutlinger in
August 2012 asking Collins to “please take a look at our revised Stock Restriction Agreement” and provide “advice”
on whether “further changes” are required, and (2) Collins’s response saying she would “be happy to look at your
revised agreement today and let you know of any suggestions [she] might have.” R. 20-3 (Email from T. Kirsch to
D. Collins, dated Aug. 10, 2012) (Page ID #283); R. 20-4 (Email from D. Collins to T. Kirsch, dated August 10,
2012) (Page ID #301). Though Dean was not copied on Collins’s later email to Kirsch spelling out her observations
and recommendations regarding the agreement, Dean was plainly able to access the email during the course of this
litigation, as he submitted the email to the district court for in camera review. R. 22 (Email from D. Collins to T.
Kirsch, dated Oct. 18, 2012) (Page ID #348). Dean insists that he did not recall these email exchanges or Middleton
Reutlinger’s representation regarding the SRA until September 28, 2016, R. 20-6 (Dean Aff. ¶¶ 5–6) (Page ID
#307), but Kirsch should not be penalized for Dean’s faulty memory. Dean’s knowledge (even knowledge that he
later forgot) of Middleton Reutlinger’s involvement in the SRA can be imputed to ZFX because “[a]t all relevant
times, Dean has been a 50 percent shareholder in and director of ZFX,” R. 5 (Verified Counterclaim ¶ 1) (Page ID
#37); Glenbrook Capital Ltd. P’ship v. Dodds (In re Amerco Derivative Litig.), 252 P.3d 681, 694–95 (Nev. 2011),
and Dean is directing ZFX’s efforts in this case.

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the risk that its interests would not be fully protected by Dean until the district court “rejected
Dean’s attempt to raise ZFX’s entitlement to Middleton’s disqualification”—a decision that was
issued less than one week before ZFX moved to intervene. Id. at 16–17. We have previously
rebuffed, however, proposed intervenors’ attempts to intervene once their initial reliance on
another party’s “best efforts” to represent their interests proved unsatisfactory. Cuyahoga Valley
Ry. Co. v. Tracy, 6 F.3d 389, 396 (6th Cir. 1993). “[R]ather than adopting a ‘wait-and-see’
approach,” ZFX should have moved to intervene as soon as Middleton Reutlinger filed a
complaint on Kirsch’s behalf in purported conflict with an agreement that Middleton Reutlinger
had helped ZFX to revise. See Blount-Hill, 636 F.3d at 286 (quoting Tennessee, 260 F.3d at
594); see also United States v. City of Detroit, 712 F.3d 925, 932 (6th Cir. 2013) (“Interested
parties should not be able to join at a late stage and re-litigate issues that they watched from the
sidelines.”). ZFX must now bear the consequences of its chosen path.
The fourth factor—“the prejudice to the original parties” resulting from ZFX’s
dilatoriness—also weighs against a finding of timeliness. See Jansen, 904 F.2d at 340. As both
parties recognize, we must focus our inquiry on the prejudice caused by ZFX’s delay, rather than
the prejudice caused by the intervention itself. City of Detroit, 712 F.3d at 933. As we already
discussed above, Kirsch would be prejudiced by ZFX’s failure to act more promptly because far
fewer of Kirsch’s counsel’s filings would need to be struck if ZFX had moved more quickly to
intervene. By sitting on the sidelines until after Dean and Kirsch had engaged in a months-long
motions practice, including several dispositive motions, ZFX increased the disruption associated
with its proposed intervention.2
2We have previously recognized that “the scope of intervention can be limited on a prospective basis,” City
of Detroit, 712 F.3d at 932, which, in this case, means that the district court could allow ZFX to intervene to

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Finally, the fifth factor asks us to consider whether any “unusual circumstances militat[e]
against or in favor of intervention.” Jansen, 904 F.2d at 340. Neither party identifies any such
circumstances, so we will assume none exist. Because each of the other timeliness factors
pushes against allowing intervention, ZFX has failed to satisfy a “threshold” consideration under
Rule 24(a), and its motion to intervene as matter of right was properly denied. See Blount-Hill,
636 F.3d at 284 (quoting United States v. Ritchie Special Credit Invs., Ltd., 620 F.3d 824, 832
(8th Cir. 2010)).
C. Permissive Intervention
“To intervene permissively [under Rule 24(b)], a proposed intervenor must establish that
the motion for intervention is timely and alleges at least one common question of law or fact.”
Michigan, 424 F.3d at 445. “So long as the motion for intervention is timely and there is at least
one common question of law or fact, the balancing of undue delay, prejudice to the original
parties, and any other relevant factors is reviewed for an abuse of discretion.” Michigan State
AFL-CIO v. Miller, 103 F.3d 1240, 1248 (6th Cir. 1997). Though the district court operates
within a “zone of discretion” when deciding whether to allow intervention under Rule 24(b), the
district court nevertheless “must, except where the basis for the decision is obvious in light of the
disqualify Kirsch’s counsel but not to strike her counsel’s prior filings. So limiting ZFX’s intervention would
dampen the prejudice associated with ZFX’s delay, though it would not eliminate it. Kirsch would still be required
to retain a new legal team to argue substantive issues that Middleton Reutlinger previously addressed in its pretrial
practice—something that could have been avoided if ZFX had moved to intervene before the parties litigated their
respective motions to dismiss and Dean’s motion to compel arbitration. Moreover, ZFX expressly argued that
“Kirsch’s filings must be stricken if the Court concludes that Middleton must be disqualified” because a “potentially
conflicted counsel’s confidential information could infect the evidence presented to the district court.” R. 49-4
(Mem. in Support of Mot. to Disqualify at 15) (Page ID #937) (second quote quoting Bowers v. Ophthalmology
Group, 733 F.3d 647, 654 (6th Cir. 2013)). If ZFX is correct—a point we need not address here—then the district
court could not properly limit ZFX to intervening exclusively to disqualify Kirsch’s counsel going forward, and thus
the prejudice associated with ZFX’s delay would be substantial.

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record, provide enough of an explanation for its decision to enable this court to conduct
meaningful review.” Id.
Here, we have already determined that ZFX’s motion to intervene was not timely—a
finding that dooms ZFX’s motion for permissive intervention. See Blount-Hill, 636 F.3d at 287.
Even setting that aside, ZFX’s motion contains no “common question[s] of law or fact” with the
case at hand. See FED. R. CIV. P. 24(b)(1)(B). ZFX argues otherwise, insisting that a common
question of law exists because “ZFX’s motion to disqualify overlaps with Dean’s disqualification
motion in most, if not all, respects,” and a common question of fact exists because it “raises
questions about the same SRA that is at the heart of the dispute between Kirsch and Dean.”
Appellant Br. at 24. Both contentions are unavailing. First, we have previously rejected the
suggestion that a proposed intervenor seeking to submit a filing that “substantially mirror[s] the
positions advanced” by one of the parties has necessarily identified a common question of law or
fact. Bay Mills Indian Cmty. v. Snyder, No. 17-1362, — F. App’x —, 2018 WL 327452, at *2
(6th Cir. Jan. 9, 2018). “[I]f that were true,” we explained, “any party wishing to intervene to
support one side of a lawsuit could simply reiterate the [positions] of that side and thus meet the
‘common question’ requirement. Permissive intervention cannot be interpreted so broadly.” Id.
Second, a common question of fact does not exist simply because the SRA is featured in both
ZFX’s motion to intervene and Kirsch’s and Dean’s lawsuit. As Kirsch notes, ZFX “does not
seek to enforce or challenge or interpret the SRA.” Appellee Br. at 23. Rather, it seeks to
disqualify Middleton Reutlinger from representing Kirsch based on the firm’s prior involvement
with the SRA—an issue that is entirely tangential to the SRA-related questions implicated by
Kirsch’s and Dean’s suit. As we held in Bay Mills Indian Community, a proposed intervenor

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may not inject itself into a lawsuit under Rule 24(b) where, like here, it has no interest in a
factual or legal dispute between the parties, but instead is merely concerned that resolution of the
parties’ claims might have collateral consequences for the proposed intervenor’s independent
interests. See 2018 WL 327452, at *3. Such orthogonal concerns do not raise common
questions of fact or law.
In its final argument on this point, ZFX claims that the district court’s purported “failure
to even consider whether permissive intervention was warranted,” including its alleged “failure
to even consider ‘whether intervention would result in undue delay or excessive prejudice to the
original parties,’” was “clearly an abuse of discretion.” Appellant Br. at 25 (second quote
quoting Miller, 103 F.3d at 1248). Though ZFX is right to note that a district court denying a
motion for permissive intervention must explain the basis for its decision unless it “is obvious in
light of the record,” Miller, 103 F.3d at 1248, ZFX is wrong to assert that the district court failed
to do so here. In denying ZFX’s motion, the district court explained that ZFX’s motion to
intervene “solely to assert an alleged conflict of interest involving Middleton Reutlinger after
Dean failed to successfully do so” did not raise “a claim against Kirsch that is justiciable or a
direct interest that is protectable under Rule 24.” R. 85 (Mem. Op. at 12) (Page ID #1310).
Implicit in this statement is a determination that ZFX’s motion did not satisfy either Rule 24(a)
or Rule 24(b)’s base requirements. Having so held, the district court was under no obligation to
consider nevertheless whether “other relevant factors” militated in favor or against intervention.
See Miller, 103 F.3d at 1248 (requiring district courts to undertake “the balancing of undue
delay, prejudice to the original parties, and any other relevant factors” only “[s]o long as the
motion for intervention is timely and there is at least one common question of law or fact”).

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Nevertheless, the district court did so, explaining that allowing ZFX to intervene would “give
rise to an ethical question of whether [ZFX’s attorneys] could continue to represent Dean and
ZFX” in light of Kirsch’s alleged half-interest in ZFX. R. 85 (Mem. Op. at 12) (Page ID #1310).
The district court thus complied with our directive to “explain[] its decision on the record” and
did not abuse its discretion in denying ZFX’s motion to intervene. See Miller, 103 F.3d at 1248.
D. ZFX’s Third Theory of Intervention
ZFX presses as its final theory that a proposed intervenor “seek[ing] to raise an attorney’s
conflict of interest” may intervene “as a matter of course,” regardless of whether the applicant is
able to satisfy Rule 24’s requirements. Appellant Br. at 9. ZFX has not identified a single
circuit that has directly endorsed this broad conception of intervention as a matter of right, and
we decline to be the first.
To be fair, at least two circuits and a smattering of district courts have indicated that
“[c]olorable claims of attorney-client and work product privilege qualify as sufficient interests to
ground intervention as of right,” In re Grand Jury Subpoena, 274 F.3d at 570; see also In re
Yarn, 530 F.2d at 86–88—a statement that is somewhat in tension with our usual interpretation
of Rule 24(a)’s requirements. We generally require an “applicant for intervention ‘[to] have a
direct and substantial interest in the litigation,’ such that it is a ‘real party in interest in the
transaction which is the subject of the proceeding.’” Reliastar Life Ins. Co. v. MKP Invs., 565 F.
App’x 369, 372 (6th Cir. 2014) (first quoting Grubbs, 870 F.2d at 346; then quoting Providence
Baptist Church v. Hillandale Comm., Ltd., 425 F.3d 309, 317 (6th Cir. 2005)). There is real
reason to doubt that an applicant’s interest as a former client in disqualifying another party’s
counsel—an interest that has nothing to do with the merits of the proceeding—is sufficiently

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direct under our typical interpretation Rule 24(a). Thus, at least one court has opted to adopt a
more generous reading of Rule 24’s relatedness requirement, reasoning that “a strict application
of the intervention rules” is not warranted when presented with “a colorable assertion that ethical
considerations may warrant disqualification of counsel.” Med. Diagnostic Imaging, PLLC v.
CareCore Nat’l, LLC, 542 F. Supp. 2d 296, 305 (S.D.N.Y. 2008). We could, perhaps, do the
same.
Adopting an expansive reading of Rule 24’s requirements, however, is not the same as
bypassing them entirely. We are bound by the Federal Rules of Civil Procedure. See FED. R.
CIV. P. 1. Rule 24, which dictates when intervention “must” be permitted as of right and when it
“may” be permitted as a matter of discretion, requires any motion to intervene to be “timely.”
FED. R. CIV . P. 24. We cannot simply ignore this timeliness requirement, even if the purpose
behind ZFX’s motion—i.e., a desire to assert its right to conflict-free representation—strikes us
as important. Having already determined that ZFX failed to move to intervene in a timely
fashion, we cannot credit ZFX’s theory that it nevertheless has a right to intervene in Kirsch’s
and Dean’s lawsuit as a matter of course.
E. Motion to Strike and Motion to Supplement
Because we have resolved this appeal without needing to decide whether to grant
Kirsch’s motion to strike Exhibit A and the arguments based thereon from ZFX’s reply brief3 or
whether to grant ZFX’s motion to supplement the record, we DENY those motions as moot.
3Alternatively, Kirsch requested that we strike the entirety of ZFX’s reply brief. Even if we were to
conclude that ZFX improperly included citations to and a copy of the Interim Award in its reply brief, we would not
strike the entire brief from the record.

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III. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s denial of ZFX’s motion
to intervene. ZFX failed to satisfy Rule 24’s timeliness requirements and does not otherwise
have a right to intervene as a matter of course. We therefore affirm the district court’s rejection
of ZFX’s motion to intervene for the purpose of disqualifying Kirsch’s trial counsel.

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