Entropic Communications, LLC v. Charter Communications, Inc.

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ENTROPIC COMMUNICATIONS, LLC,
Plaintiff
v.
CHARTER COMMUNICATIONS, INC.,
Defendant-Appellee
v.
THE ELECTRONIC FRONTIER FOUNDATION,
Movant-Appellant
______________________
2024-1896
______________________
Appeal from the United States District Court for the
Eastern District of Texas in No. 2:22-cv-00125-JRG, Judge
J. Rodney Gilstrap.
______________________
Decided: December 17, 2025
______________________
DANIEL REISNER, Arnold & Porter Kaye Scholer LLP,
New York, NY, argued for defendant-appellee. Also repre-
sented by ELIZABETH A. LONG.
AARON DAVID MACKEY, Electronic Frontier Foundation,
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San Francisco, CA, argued for movant-appellant. Also rep-
resented by VICTORIA JANE NOBLE; CHRISTOPHER MORTEN,
Washington Square Legal Services, Inc., New York Univer-
sity School of Law, New York, NY.
______________________
Before LOURIE, BRYSON, and CHEN, Circuit Judges.
BRYSON, Circuit Judge.
This is an appeal from a district court order denying
leave for a third party to intervene in a civil proceeding.
We hold that the district court did not abuse its broad dis-
cretion in denying the third party’s motion for permissive
intervention, and we therefore dismiss the appeal.
I
A
On April 27, 2022, plaintiff Entropic Communications,
LLC (“Entropic”), a semiconductor products provider, filed
a patent infringement action against defendant Charter
Communications, Inc., (“Charter”) in the United States
District Court for the Eastern District of Texas. Entropic
alleged that Charter had infringed several of Entropic’s pa-
tents concerning cable modem technology by leasing, sell-
ing, and distributing cable modems and set-top boxes used
by Charter’s customers. One of the issues in the case in-
volved the relevance of the Data Over Cable Service Inter-
face Specification (“DOCSIS”) cable data transmission
standard. Charter argued that the asserted patents are es-
sential to comply with the DOCSIS standard and therefore
are encumbered by licensing commitments.
In August 2022, the parties submitted a proposed pro-
tective order to the district court, which the district court
entered. J.A. 9–23. The protective order provided that the
parties could treat certain documents or information as
“designated materials” falling into one of three categories:
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confidential material; materials for attorneys’ eyes only; or
confidential source code. J.A. 17–18.
The protective order directed that any such designated
material that is filed with the court “shall be filed under
seal and shall remain under seal until further order of the
Court.” J.A. 18. In addition, the order directed that if court
filings disclose or rely on confidential documents, infor-
mation, or material, “such confidential portions shall be re-
dacted to the extent necessary and the pleading or exhibit
filed publicly with the Court.” Id. The parties were given
the right to object to the protected status of any “designated
material,” with the burden on the designating party to
show why its classification was proper. J.A. 18–19.
On September 11 and 12, 2023, the parties filed numer-
ous motions for summary judgment and other relief, most
of which were filed under seal.1 Redacted versions of each
of those motions were subsequently filed publicly. Re-
sponses to those motions were filed (mostly under seal) on
September 25, 2023, and replies were filed (again mostly
under seal) on October 2 and 3, 2023. Sur-replies to those
replies were filed on October 10 and 11, 2023 (again mostly
under seal). Redacted versions of all the sealed pleadings
were filed by October 18, 2023.
Following oral argument, the magistrate judge as-
signed to the case entered a series of orders between No-
vember 27 and December 5, 2023, including a Report and
Recommendation or Memorandum Order with respect to
each of the motions filed by the parties in September 2023.
1 The parties filed a total of fifteen such motions,
with attached exhibits, on those two days. Twelve of the
motions were filed under seal. See Entropic Commc’ns,
LLC v. Charter Commc’ns, Inc., No. 2:22-cv-125 (E.D. Tex.),
Dkt. Nos. 166 through 181 (docket reproduced at J.A. 39–
85).
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All the reports and orders were filed publicly and were not
sealed or redacted. On December 8, 2023, the district court
entered orders adopting each of the reports filed by the
magistrate judge with regard to the parties’ summary judg-
ment motions. On December 10, 2023, the parties filed a
joint stipulation dismissing the case, which the court en-
tered that same day.
B
On January 5, 2024, counsel for a third party, the Elec-
tronic Frontier Foundation (“EFF”), sent an email to coun-
sel for Entropic and Charter expressing concern that the
parties had “filed certain court records in this case under
seal without any showing by the parties or judicial deter-
mination that the strong presumption of public access to
these records has been overcome.” J.A. 635. EFF’s counsel
referred in particular to four documents: the redacted pub-
lic versions of Entropic’s motion for summary judgment of
no license defense based on DOCSIS; the redacted public
version of Entropic’s motion for partial summary judgment
regarding non-infringing alternatives to the infringing
products; and the redacted public versions of Charter’s re-
sponses to both motions. Id.
EFF’s counsel requested that “Entropic and Charter
file appropriate motions to seal for all records, or portions
thereof, currently under seal in this docket, that Entropic
and Charter wish to keep sealed.” Id. Such motions, ac-
cording to EFF, should establish that “legally sufficient
reasons exist to justify ongoing secrecy.” Id. EFF further
urged that any currently sealed records that Entropic and
Charter “do not wish to keep sealed should be re-filed on
the docket . . . in unsealed, publicly accessible form.” Id.
Counsel stated that if Entropic or Charter were not willing
or able to comply with those demands, the parties should
meet and confer on the matter on or before January 26,
2024. J.A. 636.
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On January 10, 2024, counsel for Charter responded on
behalf of both Entropic and Charter. She stated that the
parties’ filings under seal were proper because the sealing
was conducted pursuant to the protective order in the case,
which directed that all designated materials filed with the
court should be filed under seal. Therefore, counsel stated,
there was no need for a meet-and-confer on the matter.
J.A. 633.
The following week, counsel for EFF responded, taking
issue with the parties’ representation that they had com-
plied with the governing rules regarding sealing. J.A. 631–
32. Counsel for EFF reiterated his request that Entropic
and Charter file appropriate motions to seal “for all rec-
ords, or portions thereof, currently under seal in this
docket, that Entropic and Charter wish to keep sealed.”
J.A. 632. In response, counsel for Charter and Entropic
agreed to meet and confer with counsel for EFF on January
26, 2024, to discuss the matter. J.A. 625–30.
At the January 26th meet-and-confer, Entropic and
Charter declined to take the steps demanded by EFF. J.A.
620–21. Nearly eight weeks later, on March 20, 2024, EFF
moved to intervene in the case to seek the unsealing of var-
ious items that had been filed under seal during the pen-
dency of the case. J.A. 581–99. Charter opposed the
motion, J.A. 667–76, and EFF filed a reply, J.A. 677–84.
Entropic took no position on EFF’s motion and did not sub-
mit any briefing either in support of or in opposition to
EFF’s request. J.A. 599.
C
The district court denied EFF’s motion to intervene as
untimely. J.A. 1–6. The court explained that under Fifth
Circuit law, the timeliness of a motion seeking permissive
intervention must be measured from “the moment that the
prospective intervenor knew that his interest would ‘no
longer be protected.’” J.A. 2–4 (quoting U.S. ex rel. Her-
nandez v. Team Finance, 80 F.4th 571, 578 (5th Cir. 2023)).
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The court found that the most appropriate date from
which to measure EFF’s delay in filing its motion to inter-
vene was October 11, 2023, the date on which the briefing
of the pretrial motions was complete. However, “[o]ut of an
abundance of caution,” the court conducted the same anal-
ysis using the starting date of November 29, 2023, when
the magistrate judge issued his Report and Recommenda-
tion on Charter’s DOCSIS license defense. J.A. 4. Calcu-
lating the period of delay from that starting date, the court
found that EFF’s four-month delay in filing the motion to
intervene resulted in the motion being untimely under “the
totality of the circumstances.” Id.
EFF took this appeal from the district court’s order
denying the motion for permissive intervention.
II
A
In cases involving a third party’s motion for permissive
intervention in a civil action, we apply the law of the re-
gional circuit, in this case the Fifth Circuit. Ericsson, Inc.
v. InterDigital Commc’ns Corp., 418 F.3d 1217, 1220–21
(Fed. Cir. 2005) (citing Haworth, Inc. v. Steelcase, Inc., 12
F.3d 1090, 1092 (Fed. Cir. 1993)).
Under Fifth Circuit law, orders concerning permissive
intervention under Fed. R. Civ. P. 24(b) are “wholly discre-
tionary” and “may be denied even when the requirements
of Rule 24(b) are satisfied.” Turner v. Cincinnati Ins. Co.,
9 F.4th 300, 317 (5th Cir. 2021); see also Taylor Commc’ns
Grp., Inc. v. Sw. Bell Tel. Co., 172 F.3d 385, 387 (5th Cir.
1999). In fact, the Fifth Circuit has explained that “revers-
ing a district court’s decision denying permissive interven-
tion is ‘so unusual as to be almost unique.’” Rotstain v.
Mendez, 986 F.3d 931, 942 (5th Cir. 2021) (quoting New
Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732
F.2d 452, 471 (5th Cir. 1984) (en banc)).
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If the court concludes that the district court did not
abuse its discretion by denying permissive intervention,
Fifth Circuit law provides that the appellate court “must
dismiss the appeal for lack of jurisdiction.” Rotstain, 986
F.3d at 942; Edwards v. City of Houston, 78 F.3d 983, 992
(5th Cir. 1996); Weiser v White, 505 F.2d 912, 916–18 (5th
Cir. 1975) (citing Bhd. Of R.R. Trainmen v. Baltimore &
Ohio R.R. Co., 331 U.S. 519 (1947)).
B
EFF argues that “[c]ontrolling law relaxes permissive
intervention standards when members of the public seek to
challenge the secrecy of judicial records.” Appellant’s Br.
at 12; see also id. at 15. But the two cases EFF cites as
support do not stand for that proposition.
The first case—the Fifth Circuit’s decision in Newby v.
Enron Corp., 443 F.3d 416 (5th Cir. 2006)—recognized that
nonparties to a case “routinely access documents and rec-
ords under a protective order or under seal in a civil case
through motions for permissive intervention.” Newby, 443
F.3d at 424. But the court in that case did not disavow the
longstanding principle that permissive intervention is sub-
ject to the broad discretion of the district court. To the con-
trary, the court specifically noted that “permissive
intervention is within a court’s discretion,” citing EEOC. v.
Nat’l Children’s Ctr., Inc., 146 F.3d 1042 (D.C. Cir. 1998),
which confirmed that “Rule 24(b) vests district courts with
considerable discretion” and noted that “[r]eversal of a dis-
trict court’s denial of permissive intervention is ‘a very rare
bird indeed.’” Newby, 443 F.3d at 424. Newby itself was a
case in which the district court granted the motion to inter-
vene, and the appellate court, over objection, held that the
district court did not abuse its discretion. Id. at 424–25.
The second case that EFF cites for the supposedly re-
laxed rule for permissive intervention in cases such as this
one is United States ex rel. Hernandez v. Team Finance, su-
pra. The portion of that case cited by EFF, however, merely
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stands for the well-settled proposition that a nonparty’s
challenge to record-related restrictions on access to court
materials constitutes a “claim” within the meaning of Rule
24(b)(1)(B).2 See id. at 577–78. On the issue of the timeli-
ness of the motion for intervention, which was the ground
on which the district court in this case relied in denying the
motion to intervene, the Team Finance court cited the
equally well-settled principle that the decision whether to
grant permissive intervention “is firmly in the district
court’s hands.” Id. at 579 (citing Turner v. Cincinnati Ins.
Co., 9 F.4th at 317).
The Team Finance case is therefore consistent with
long-standing Supreme Court authority and cases from the
Fifth Circuit both prior to and after Team Finance, holding
that a district court’s ruling on a motion for permissive in-
tervention may not be disturbed absent a clear abuse of
discretion. See Allen Calculators, Inc. v. Nat’l Cash Reg.
Co., 322 U.S. 137, 142 (1944) (requiring a showing of “clear
abuse” to review a district court’s ruling on permissive in-
tervention); State of La. v. Burgum, 132 F.4th 918, 923 (5th
Cir. 2025) (a ruling on whether to allow permissive inter-
vention is “wholly discretionary”); New Orleans Pub. Serv.,
Inc., 732 F.2d at 471–72 (same). Nothing in Newby or
Team Finance suggests that the timeliness of a motion to
intervene to access court records is viewed differently from
2 The question whether a non-party’s challenge to re-
strictions on access to records constitutes a “claim” for pur-
poses of Rule 24(b) is an issue of law. As the Supreme
Court has explained, while the resolution of a motion for
permissive intervention “is committed to the discretion of
the court before which intervention is sought, a court fails
to exercise its discretion soundly when it bases its ruling
on an erroneous view of the law.” Cameron v. EMW
Women’s Surgical Ctr., P.S.C., 595 U.S. 267, 278–79 (2022)
(cleaned up).
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the timeliness of any other motion for permissive interven-
tion.
III
Rule 24(b)(1) of the Federal Rules of Civil Procedure,
which governs motions for permissive intervention, pro-
vides that a court “[o]n timely motion . . . may permit any-
one to intervene” who either is “given a conditional right to
intervene by a federal statute” or “has a claim or defense
that shares with the main action a common question of law
or fact.” The Fifth Circuit has held that in a case such as
this one, a third party has standing to move for interven-
tion in light of its interest in obtaining access to sealed ma-
terials and is deemed to have a “claim” within the meaning
of Rule 24(b) by virtue of its interest in promoting the pub-
lic’s right of access to materials filed in court. See Team
Finance, 80 F.4th at 576–78. The remaining requirement
for permissive intervention under Rule 24(b)(1) is that the
third party’s motion must be “timely.”
Courts have long held that timeliness is an essential
component of a motion for permissive intervention under
Rule 24(b). See NAACP v. New York, 413 U.S. 345, 365
(1973). As the Supreme Court explained in that case, time-
liness “is to be determined from all the circumstances,” and
“it is to be determined by the court in the exercise of its
sound discretion; unless that discretion is abused, the
court’s ruling will not be disturbed on review.” Id. at 366.
In Stallworth v. Monsanto Co., 558 F.2d 257, 264–67
(5th Cir. 1977), the Fifth Circuit elaborated on the Su-
preme Court’s discussion of timeliness by setting out four
factors that a court should consider when evaluating the
timeliness of a motion to intervene:
(1) The length of time during which the would-be
intervenor actually knew or should have known
of his interest in the case before he petitioned
for leave to intervene;
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(2) The extent of the prejudice that the existing
parties to the litigation may suffer as a re-
sult of the would-be intervenor’s failure to
apply for intervention as soon as he actually
knew or reasonably should have known of
his interest in the case;
(3) The extent of the prejudice that the would-
be intervenor may suffer if his petition for
leave to intervene is denied; and
(4) The existence of unusual circumstances
militating either for or against a determina-
tion that the application is timely.
Citing the NAACP case, Stallworth held that “the ques-
tion whether an application for intervention is timely is
largely committed to the discretion of the district court, and
its determination will not be overturned on appeal unless
an abuse of discretion is shown.” Stallworth, 558 F.2d at
263. Since then, the Fifth Circuit has regularly employed
the Stallworth factors to guide the district courts’ exercise
of their discretion in deciding the timeliness of intervention
motions. See Team Finance, 80 F.4th at 578; United States
v. State of La., 669 F.2d 314, 315 (5th Cir. 1982); Howse v.
S/V Can. Goose I, 641 F.2d 317, 318 (5th Cir. 1981).
IV
In response to EFF’s March 20, 2024, motion to inter-
vene, Charter argued that the motion should be dismissed
as untimely, and the district court agreed. J.A. 1–6. We
do not find that the district court abused its discretion in
reaching that conclusion. In analyzing the timeliness fac-
tor, the district court correctly applied the principle of Fifth
Circuit law requiring that the timeliness of a motion seek-
ing permissive intervention should be measured from the
time the prospective intervenor knew that his interest
would no longer be protected. J.A. 2–3.
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The court noted that EFF had repeatedly characterized
the DOCSIS license defense as “a key issue in this case,”
and that Charter had put the public on notice that it was
raising that defense no later than May 24, 2023, almost
four months before the plaintiff filed its summary judg-
ment motion on that issue. J.A. 3. In light of EFF’s ex-
pressed interest in this case and in the DOCSIS license
defense in particular, the court found that “EFF likely fol-
lowed the filings in this case and had a particular interest
in [the] summary judgment motion” relating to the
DOCSIS license defense. Id. The court concluded that
“common sense indicates that EFF would have known by
the time the motion was fully briefed,” which was October
11, 2023, that its interest in having the sealed documents
unsealed would not occur absent action on its part, given
that the relevant documents “were sealed without accom-
panying motions to seal.” J.A. 3–4.
Based on the relevant date of October 11, 2023, the
court found that EFF waited more than five months to file
its motion to intervene. However, the court then conducted
the same analysis using the more conservative starting
date of November 29, 2023, when the magistrate judge is-
sued his Report and Recommendation on Charter’s
DOCSIS license defense. Calculating the period of delay
from that starting date, the court found that the four-
month delay in filing the motion was still untimely under
“the totality of the circumstances.” J.A. 4.
The district court applied the correct test for determin-
ing the period of delay, and its determination of the start-
ing point for measuring the delay was reasonable. By the
time the briefing had been completed, and the sealed briefs
and exhibits had been filed without accompanying motions
to seal, it should have been clear to EFF that it was not
likely to obtain access to those materials unless it took
steps to request relief from the court. In any event, that
should have been clear to EFF by no later than November
29, 2023.
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EFF takes issue with the district court’s conclusion
that the length of time it took for EFF to file its motion
rendered the motion untimely. We disagree. We hold that
there was no legal error in the manner in which the district
court calculated the delay; in fact, in light of the district
court’s findings as to EFF’s interest in the case the court’s
choice of November 29, 2023 as the starting point for cal-
culating the period of delay was generous to EFF.
EFF attributes much of the delay in filing its motion to
its effort to persuade Entropic and Charter to alter their
positions on sealing or to file formal motions to seal with
the court. Appellant’s Br. at 9. But EFF did not act expe-
ditiously in that regard. It waited for almost a month after
the case was settled to initiate its exchange of emails with
the parties regarding the sealed materials. J.A. 618–36.
And even after the parties made clear in early January
2024 that they were not disposed to alter their positions on
the sealing issue, EFF waited two and a half more months
before filing its motion with the court. Under these circum-
stances, we find that the district court did not abuse its dis-
cretion in concluding, under the first Stallworth factor,
that EFF should have sought relief more promptly.
As to second Stallworth factor, the district court found
that Charter would be prejudiced if EFF were allowed to
intervene months after the case was settled and had been
closed, and after the parties had disbanded their case
teams. J.A. 4–5. The court noted that “[h]ad EFF inter-
vened when the motion at issue became fully briefed,
[EFF’s] Motion could have been contemporaneous with the
settlement when knowledge surrounding the relevant doc-
uments was fresh and the trial teams were engaged and
focused.” Id.
With regard to the third Stallworth factor—the issue of
prejudice to the movant—the court observed that the mag-
istrate judge’s report and recommendation “is entirely un-
redacted and summarizes the key issues relating to
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Charter’s DOCSIS license defense.” J.A. 5. Although EFF
complained that there was little the public could glean
about the DOCSIS dispute from the courts’ rulings, the dis-
trict court noted that “EFF was able to clearly explain the
two key license issues in its briefing.” Id. In light of the
magistrate judge’s unredacted summary of the key issues
relating to the license defense, the district court reasonably
concluded that “EFF would suffer little, if any, material
harm if intervention is denied.” J.A. 5–6.
With regard to the fourth Stallworth factor, the court
found that there were no unusual circumstances in this
case bearing on the issue of timeliness, so the court found
that factor to be neutral. J.A. 6. Taking all of the Stall-
worth factors into account, the court held that EFF’s mo-
tion to intervene was untimely and so denied the motion.
Id.
We hold that the district court focused on the proper
factors bearing on timeliness and that the court’s disposi-
tion of the timeliness issue fell within the broad discretion
that the Fifth Circuit has accorded to district courts in re-
solving motions requests for permissive intervention.
While EFF has put forth plausible arguments regarding
the reasons for its delay in filing its motion, the district
court considered those arguments and rejected them for
reasons that cannot be characterized as an abuse of discre-
tion. We therefore sustain the district court’s ruling on
EFF’s motion to intervene and dismiss the appeal.
DISMISSED
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