D. Standards for Commission Intervention In Private Actions

1. Form of Request

All recommendations for intervention require a presentation memorandum (PM). In a separate cover memorandum to the PM, the legal unit should set out background information about the private lawsuit, an explanation of the case's general public importance, an assessment of the other factors supporting intervention, and a discussion of the legal unit's understanding with private counsel regarding the Commission's role in the litigation. The background information provided about the private lawsuit should include the following: 1) name, court, and civil action number; 2) date of court filing; 3) claims alleged in private lawsuit; 4) date charge(s) was filed and a description of the Commission's investigative efforts on the charge(s); 5) furthest stage reached in the administrative process and an explanation of why the private action was filed before the Commission was in a position to file suit; 6) current status of private lawsuit; and, 7) name of private counsel.

2. Certification of Public Importance

Under both Title VII and the ADA, intervention by the Commission is contingent on the agency's certification that the case is of "general public importance." The certification consists of a statement executed by the General Counsel, an example of which is contained in the Appendix that follows. An original certification for the General Counsel's signature should be included with all Title VII and ADA PMs. Certifications are not required for interventions in ADEA and EPA cases, but those cases should generally meet the same public importance standard.

Normally, to be considered of "general public importance," a case should directly affect a large number of aggrieved individuals, involve a discriminatory policy or practice requiring injunctive relief, or have potential for addressing significant legal issues.

3. Other Factors Relevant to Intervention

The factors listed below should be considered in determining whether to recommend intervention and should be discussed in the cover memorandum to the PM. They are not exhaustive, and any other relevant factors should also be discussed. The conditions for certifying that the case is of general public importance must be met before considering the factors in this section.

1. The Commission's contribution to the success of the litigation – This is the most important factor, and can include personnel and financial resources. For example, if a case that warrants litigation by the Commission is filed by the charging party before the agency has completed its administrative processes, there is no reason in principle why the Commission should not expend as much resources litigating as an intervenor as it would have spent filing on its own, if its participation is necessary to a successful resolution of the case. However, the Commission should never intervene principally to fund a case. The work of Commission attorneys on the case must be substantial both in time spent and in the importance of their tasks. Where a trial occurs, Commission attorneys should have significant roles in the courtroom.
2. Private counsel's ability to litigate the case effectively without the Commission's participation – This is related to a. above, and includes general competence as an attorney, related litigation experience, and financial resources. Even where private counsel is highly skilled and able to fund the case adequately, Commission intervention may be appropriate if it significantly increases the likelihood of success in an important case. This may be true, for example, if the case is particularly large or complex, or if there is a need for injunctive relief beyond that being sought by the private plaintiff(s). But if the results of the private action are not likely to be affected by the Commission's participation, intervention should not be recommended.
3. Relationship to the private bar – It is in the Commission's interest for private attorneys to accept meritorious cases under the statutes the agency enforces. To the extent that intervention in a particular case may encourage such private litigation (separate, of course, from the particular case in question), this is a factor favoring intervention.
4. Whether a motion to intervene would be considered timely by the court – Where factor a. above is satisfied, this should seldom be a consideration, since intervention will normally have to occur early in the case for the Commission to play a significant role in the litigation.

4. Relationship with Private Counsel

Prior to recommending intervention, the legal unit must have a firm understanding with private counsel regarding the Commission's role in the litigation, including personnel and financial commitments, litigation strategy, relief sought, and the Commission's nonconfidentiality policy on settlements. Although it is not possible to guarantee the absence of disagreements later in the litigation, particularly regarding matters such as the value of the private plaintiffs' claims, the clearer the understanding between the parties prior to the Commission's decision regarding intervention the better. Where the Commission and the private plaintiffs are not in agreement on a fundamental aspect of the litigation, intervention should not be recommended, although it may be appropriate in such circumstances to recommend amicus curiae participation.

In the PM, the legal unit should confirm that the above matters were discussed with private counsel and should summarize the understanding between the parties.

As with all litigation related matters, feel free to discuss potential intervention recommendations with your Litigation Management Services liaison attorney prior to deciding whether to submit a PM.

5. Web Resources

Appendix
Model Certificate of Public Importance
For Title VII and ADA Interventions

                         IN THE UNITED STATES DISTRICT COURT                   FOR THE_____________ DISTRICT OF _____________   [Name of Plaintiff],                  )                                       )                                       )                 Plaintiff,            )                                       )                                       )                                       )                                       ) v.                                    )   Civil Action No. ____________________                                       )                                       ) [Name of Defendant(s)],               )   CERTIFICATION OF GENERAL                                       )   PUBLIC IMPORTANCE PURSUANT                 Defendant(s).         )   TO 42 U.S.C. §2000e-5(f)(1) ______________________________________)   CERTIFICATION  Upon review of the facts of this case, I have determined that it raises  issues of general public importance regarding allegations that the  defendant(s) violated [Title VII of the Civil Rights Act of 1964, as  amended, 42 U.S.C. §2000e, et seq. or Title I of the Americans  with Disabilities Act of 1990, 42 U.S.C. §12101 et seq.] by [set  out claim(s)].   DATED THIS ___________ day of ________________________ 200__.                                 ________________________________________________                               General Counsel                                 EQUAL EMPLOYMENT OPPORTUNITY                               COMMISSION                               1801 L Street, NW.                               Washington, DC 20507