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490 J. C. Coyajee The task of co-operation is growing from more to more an new problems are pressing for solution on all hands; with the industrial development of India co-operation will have on its hands the task of helping industrial operatives as well as agricultural workers. The report of the Industrial Commission has emphasized the support that can be rendered to small and cottage industries by co-operation; but with all respect to the Commission it might be said that the potential services which co-operation can render in India's Industrial Renaissance are not confined to the use of small industries. It might be that co-operation will materially contribute to the solution of the much discussed problem of "paucity of labor" in India, and it is the only force that


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Rh that there is tendency for these smaller holdings to become even smaller and that a large proportion of these holdings are uneconomic. Secondly, referring to Mr. Keatinge's bill they consider that the bill is open to strongest objections and the more obvious of these have been enumerated by them.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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RELATING TO INDIA 429 ideas and the freedom with which he crosses swords with


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272 FROM OFFICIAL SOURCES on the other hand the cultivators have no guarantee that they will get as much as one foot.

Tenure of Farms

The farms are held on perpetual lease; but though the tenure is only leasehold, it is said to have all the advantages of freehold without the necessity for payment of purchase money. The rental is moderate, being calculated at 2½ per cent per annum on the estimated capital value at the time the lease is executed.


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150 GILBERT SLATER greater size and muscular strength, partly to the colder climate which makes energetic labor more possible, partly to the fact that in the development of methods of working expedition and efficiency have been more sought after in England; and partly to the fact that the English labor has the assistance of more effective tools and a much larger equipment of machinery. I have said this estimate of one-tenth is a very rough one, but in conversation with Dr. Harold Mann, Principal of the Poona Agricultural College, I asked him to form a similar estimate and he confirmed my guess.

I may here say that I am anxious to collect information with regard to the relative efficiency of English and Indian labor when they can be fairly compared. The most favorable comparisons I have yet found are


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162 E. A. MOLONY And now I thinck there were noe lesse then 17 or 1800 peole and 250 or 300 carts, besides oxen and buffaloes of burthen. For the countrie (people), hearinge of our comeinge this waye, resolved, for their better securitie to take hold of this oppertunitie to save their lives by avoydinge the famine and repaireinge to places of better releife. Soe that aswee passed their townes, they dayly joyned to us by multitudes, and likely soe to continue untill our arrivall att Brampoore (Burhanpur). Heere wee also stood on our guard, fearinge to bee sett upon either by theeves or famished people.

The 23rd November, 1630. Wee passed through a towne called Firpoor (? Sherpur) about which all the high waies were soe full of dead bodyes, that wee could hardly passe from them without treadinge on or goeinge over some, and from thence to Talnear all the way strewed with them. Hard by this towne was a litle


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290 REVIEWS OF BOOKS hinder the realization of the ideal which he has in a previous chapter advocated, namely applying all land to the cultivation of the crops for which it is best adapted. In fact the economic losses would be much greater than the present administrative expenses and worries to rayats in collecting the revenue which he wishes to save. The third section of this chapter deals with the method of charging water rates, and the proposed system of volumetric supply which is now being experimented on in the Punjab.


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ECONOMIC DEVELOPMENT 588 tion would be, to a large extent, recoverable in case an economic or political crisis created a contraction in the circulation. In any case the part sunk in fixed investment would in no way endanger the convertibility of the note issue because at least 80 per cent of the note issue is now-a-days normally inconvertible. In other words, the Government cannot sell its own loans which it holds in order to attract silver. Whenever there is a demand for the encashment of notes, it can sell its loans for currency notes, and thus contract the issue; but very little


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RURAL LIFE OF CHOTANAGPUR 557 remains so throughout his life. Sometimes worse may happen, the kamionti bond may become a hereditary burden. The kamias are not free to leave the


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274 FROM OFFICIAL SOURCES canning, and bacon curing, all run on the most up-to-date lines. There are also several demonstration, experimental, and seed-testing farms; and experts of the agricultural department give advice and assistance free of cost. The railways, which are owned are controlled entirely by the State, carry settlers' produce at low rates, and the irrigation area has easy and direct access to all the important markets of Australia, and to ports for foreign shipment.

The Murrumbidgee irrigation sheme is so planned as to obviate the hardships and depravations so commonly experienced by pioneers and settlers who venture far away and subdue the "bush" or jungle. Owing to the smallness of the majority of holdings, and the contiguity of model towns and villages, the social conditions


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688 J. P. SRIVASTAVA conditions of work in the town, he will make no complaint but go back to his village life". If the laborers are sympathetically trained, properly treated, houses, fed and are provided with various amenities of life the centres of industries will be made more attractive and the workmen will be induced to live there permanently in spite of their attachment to their village homes. The persian proverb runs thus: "majdnr


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MCDP 1-3 -  Notes 12. Heinl, p. 259.

13. Reserve: "Portion of a body of troops which is kept to the rear, or withheld from action at the beginning of an engagement, available for a decisive moment." Tactical reserve: "A part of a force, held under the control of the commander as a maneuvering force to influence future action." (Joint Pub 1-02)

14. Brig Gen Thomas R. Phillips, U.S. Army, ed., "Military Maxims of Napoleon," in Roots of Strategy: A Collection of Military Classics (Harrisburg, PA: Military Service Publishing Co., 1940) p. 436.

15. Heinl, p. 275.

16. This example was taken from Martin Russ, Line of Departure: TARAWA (Garden City, NY: Doubleday & Company, Inc., 1975).

17. Heinl, p. 274.

18. Much of the material in this section is based on Capt John F. Schmitt's article, "The Use of the Reserve in Combat," Marine Corps Gazette (March 1990) pp. 63-69.

Making It Happen 1. T. E. Lawrence, "The Science of Guerrilla Warfare," introduction to "Guerrilla Warfare," Encyclopedia Britannica, 13th ed. (NY: Encyclopedia Britannica, 1926).

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Tactics -  MCDP 1-3 Marines have often relied on deception to mislead the enemy in regard to the location of amphibious landings. Marines used deception to create the illusion of force where there was none in Operation Desert Storm. Lieutenant General Boomer stated the situation which necessitated an extensive deception operation: "We're taking on 11 Iraqi divisions with two Marine divisions. Our force ratios are horrible. We don't want him to know that. . . ." The Marines created Task Force Troy: 460 Marines imitated the activities of a 16,000-man division using loud- speakers, dummy tanks and artillery, and helicopters conducting simulated resupply.

Surprise can be generated through stealth. Stealth is used to advantage when maneuvering against an enemy. It provides less chance of detection by the enemy, leaving him vulnerable to surprise action for which he may be unprepared. Marines may also employ stealth by lying in wait for an approaching enemy — an ambush. The ambush is perhaps the most effective means of surprising opponents, especially at the lower tactical level where surprise through stealth is easiest to achieve.

We can also achieve surprise through ambiguity. It is usually difficult to conceal all our movements from the enemy, but we can sometimes confuse him as to the meaning of what he sees. Sun Tzu said:

"The enemy must not know where I intend to give battle. For if he does not know where I intend to give battle he must prepare in a great many places. And when he prepares in a great"

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Tactics -  MCDP 1-3 Anticipation The first basic way to adapt is to anticipate, by which we mean to introduce new methods, schemes, or techniques for future use. In order to anticipate, we must be able to forecast future actions, at least to some extent. Our forecasts are usually based on past experiences. Often a forecast involves considering what we learned through trial and error in training, exercises, or actual combat. An excellent example of anticipation is the Marine Corps' development of amphibious warfare techniques at Quantico during the 1920s and 1930s. These techniques proved to be essential to success in World War II, both in the Pacific and in Europe.

All planning at all echelons is a form of anticipatory adaptation — adapting our actions in advance. Another important tool for tactical adaptation is the use of immediate-action drills or standing operating procedures. These are practiced, pre-designed, generic actions which cover common situations. Having a collection of these tools at our disposal allows us to react immediately in a coordinated way to a broad variety of tactical situations. Immediate-action drills do not replace the need for tactical judgment; they merely provide a way to seize initiative in the early stages of a developing situation until we can take more considered action. They provide the basis for adaptation.

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Tactics -  MCDP 1-3  would take a look, see something 75 or 100 meters out in front that needed to be done, and go out and do it without being told. As I read through [the] award citations from Desert Shield and Desert Storm, this theme reappears, time and time again. That aggressive spirit comes from being well-trained, and confident in your professional knowledge.

Everything we do in peacetime should prepare us for combat. Our preparation for combat depends upon training and education that develop the action and thought essential to battle.

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Tactics -  MCDP 1-3 essentially one of pattern recognition, the ability, after seeing only a few pieces of the puzzle, to fill in the rest of the picture correctly. Pattern recognition is the ability to understand the true significance and dynamics of a situation with limited information. Pattern recognition is a key skill for success on the battlefield.

Tactics requires leaders to make decisions. A leader must make decisions in a constantly changing environment of friction, uncertainty, and danger. Making effective decisions and acting on those decisions faster than the enemy is a crucial element of Marine Corps tactics.

Sometimes there may be time to analyze situations deliberately and to consider multiple options. Comparing several options and selecting the best one is known as analytical decisionmaking. When time allows a commander to apply analytical decisionmaking — usually before an engagement or battle begins — the commander should make the most of it.

Once engaged, however, the commander finds time is short and the need for speed paramount. In some cases, speeding up the analytical decisionmaking process may be sufficient; however, in most cases intuitive decisionmaking is needed to generate and maintain tempo. Intuitive decisionmaking relies on a commander's intuitive ability to recognize the key elements of a particular problem and arrive at the proper decision without having to compare multiple options. Intuition is not some

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Tactics -  MCDP 1-3 the opposing Roman cavalry and swung completely around the Roman rear to attack the Roman cavalry on the other flank. The Roman cavalry fled the field.

The Carthaginian heavy cavalry then turned back to assault the rear of the dense Roman infantry who had pressed back Hannibal's thin center line. At the same time, Hannibal wheeled his right and left wings into the flanks of the Roman center. The Romans were boxed in, unable to maneuver or use their weapons effectively. (See B in figure on page 21.) Between 50,000 and 60,000 Romans died that day as Varro's army was destroyed.

Understanding decisiveness

What do these examples tell us about achieving a decision?

First, achieving a decision is important. An indecisive battle wastes the lives of those who fight and die in it. It wastes the efforts of those who survive as well. All the costs — the deaths, the wounds, the sweat and effort, the equipment destroyed or used up, the supplies expended — are suffered for little gain. Such battles have no meaning except for the comparative losses and perhaps an incremental gain for one side or the other.

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MCDP 1-3 -  Being Faster aviators achieved a high kill ratio of about 10:1 over their North Korean and Chinese opponents. At first glance, this is somewhat surprising. The main enemy fighter, the MiG-15, was superior to the American F-86 in a number of key respects. It could climb and accelerate faster, and it had a better sustained turn rate. The F-86, however, was superior to the MiG in two critical, though less obvious, respects. First, because it had high-powered hydraulic controls, the F-86 could shift from one maneuver to another faster than the MiG. Second, because of its bubble canopy, the F-86 pilot had better visibility. The F-86's better field of view provided better situational awareness and also contributed to fast transitions because it allowed its pilot to understand changing situations more quickly. American pilots developed new tactics based on these two advantages. When they engaged the MiGs, they sought to put them through a series of maneuvers. The F-86's faster transitions between maneuvers gave it a time advantage that the pilot transformed into a position advantage. Often, when the MiG pilots realized what was happening, they panicked — and thereby made the American pilot's job all the easier.

These tactics illustrate the way fast transitions contribute to overall speed and to a time advantage. The importance of time and speed in a broader sense has been brought out in the work of John Boyd. A former colonel in the U.S. Air Force, Boyd studied a wide variety of historic battles, campaigns, and wars. He noted that where numerically inferior forces had defeated

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Tactics -  MCDP 1-3 Visualizing the Battle: Gettysburg, 1863

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MCDP 1-3 -  Achieving a Decision enemy's lack of mobility by rapidly overrunning a key position faster than he can respond. It may mean interdicting enemy resupply routes when his supplies are running short. It may mean exploiting a lack of long-range weapons by employing standoff tactics. Whatever we determine the enemy's critical vulnerability to be, we must be prepared to rapidly take advantage of it.

There is no formula for determining critical vulnerabilities. Each situation is different. Critical vulnerabilities will rarely be obvious. This is one of the things that make mastery of tactics so difficult and one reason that so few actions achieve a decisive outcome. Identifying critical vulnerabilities is an important prerequisite to achieving a decision.

Shaping the Operating Area. Once we have developed an understanding of the situation and have determined enemy critical vulnerabilities to attack, we try to shape the operating area to our advantage. Shaping includes both lethal and nonlethal activities such as planning fires to fix the enemy, using an axis of advance to facilitate movement, designating objectives to focus our combat power, or using deceptive measures to reinforce enemy expectations. Shaping activities can make the enemy vulnerable to attack, impede or divert his attempts to maneuver, facilitate the maneuver of friendly forces, and otherwise dictate the time and place for decisive battle. Shaping forces the enemy to adopt courses of action favorable to us. We attempt to shape events in a way that allows us several options, so that by the time the moment for decisive action arrives, we

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Tactics -  MCDP 1-3 The Allies achieved complete surprise by landing at Anzio on January 22, 1944. Under the command of the U.S. Army's Major General Lucas, the Americans and British quickly established a beachhead and rapidly advanced 3 miles inland by midmorning against light German resistance. With the majority of their forces concentrated farther south around Cassino, the Germans could not possibly reinforce the Anzio beachhead until January 23d or 24th. If the Allies pressed their advantage, the road to Rome lay virtually undefended. The seizure of Rome would have had the effect of isolating the German defenders in the south and firmly establishing Allied control over Italy.

Yet General Lucas delayed. Concerned about being over-extended and wanting to build up his logistics ashore, Lucas failed to press his initial advantage of surprise and allowed the Germans to reinforce the Anzio area. Not until January 29th did Lucas feel strong enough to make an offensive bid, but by that time it was too late. The Germans had arrived in force and had seized the dominating high ground in the beachhead area. Not only was the Allied offensive at Anzio stalled, but the Germans had seized the initiative and quickly threatened to drive the Americans and British back into the sea (see figure).

As a result, the Allies did not complete the reduction of the German defenses in southern Italy and capture Rome until

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Tactics -  MCDP 1-3 2. Heinl, p. 329.

3. Doctrine: "Fundamental principles by which the military forces or elements thereof guide their actions in support of national objectives. It is authoritative but requires judgment in application." (Joint Pub 1-02)

4. As attributed to Erwin Rommel by Heinl, p. 60.

5. For more detailed information on the establishment of unit training programs, see MCRP 3-0A, Unit Training Management Guide (November 1996).

6. For more detailed readings on the subject of designing and executing training exercises, see MCRP 3-0B, How to Conduct Training (November 1996).

7. William Glenn Robertson, The Staff Ride (Washington, D.C.: U.S. Army Center of Military History, 1987) provides an excellent description of the use of terrain walks. See also Staff Ride Handbook (Quantico, VA: Marine Corps University, 1996). 8. This section reflects the emphasis found in MCDP 1, War-fighting, regarding the requirement to simulate the "clash of opposing wills" found in combat by conducting free-play exercises.

9. The subject of how to conduct critiques and hold after-action reviews is covered in detail in both MCRP 3-0A and MCRP 3-0B.

10. Melson, Englander, and Dawson, comps., p. 94.

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Tactics -  MCDP 1-3 Second, we want to draw our enemy unknowingly into a trap. This will often involve deceiving him. We make one course of action appear inviting. When he takes that course of action, we are waiting for him.

Third, an ambush is invisible. If the ambush is not invisible, it ceases to be an ambush and instead becomes a target for the enemy. Whether we are defending or attacking, the enemy must not detect us until it is too late for him to react. Surprise often depends upon invisibility. That invisibility may be provided through stealth in movement or in focusing the enemy's attention elsewhere to allow our forces to maneuver without detection.

The reverse slope defense is an example of using invisibility to spring an ambush. The enemy does not know we are there until he comes over the crest of a hill and is hit by our fires. His vehicles are hit on their soft underbellies. His troops are fully exposed to our weapons. Because he could not see us until the last moment, he could not call in artillery fire on our position. The reverse slope not only protects us from his direct fire; it protects us from his observation and thus his indirect fire. That is part of the ambush mentality: Do not let yourself be seen.

Fourth, in an ambush we want to shock the enemy. Instead of taking him under fire gradually with a few weapons at long range, we wait until he is within easy range of every weapon. We then open up suddenly, all at once, with everything we

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MCDP 1-3 -  Exploiting Success and Finishing from which a result is expected — the decisive attack." It is generally through offensive action, even in the defense, that we achieve decisive results. Since the reserve represents our bid to achieve a favorable decision or to prevent an unfavorable one, it often becomes the main effort once committed and should be supported by all the other elements of the force.

Along with the tangible assets used as a reserve, the prudent commander must also be aware of, and plan for, the intangible factors that impact on combat power and its sustainment. Intangible factors include fatigue, leadership quality, proficiency, morale, teamwork, and equipment maintenance. We build reserves also by reserving aviation sortie rates or numbers, withholding unique or low-density munitions, or holding critical supplies such as fuel or petroleum, oils, and lubricants for a specific goal. We consider these intangible factors when creating and tasking the reserve, as we do in all assignments of tasks.

These concepts apply not only to units initially designated as the reserve but also to any unit, since any unit can be shifted or recommitted as the reserve. Thus a commander must always be mentally prepared to redesignate roles of units and to create and use reserves as the situation requires.

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MCDP 1-3 -  Cooperating required in decentralized control. Subordinates work together laterally and from the bottom up to accomplish tasks that fulfill the commander's intent. Cooperation means we take the initiative to help those around us accomplish our shared mission.

Cooperation is essential to Marine Corps tactics. The flight leader and wingman work on the basis of cooperation. These pilots cooperate with the infantry they support. Two infantry units, fighting side by side, cooperate. A mobile combat service

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text: Dictionary of National Biography, 1885-1900/Bowes, Thomas


text: Dictionary of National Biography, 1885-1900/Bowes, William


text: Dictionary of National Biography, 1885-1900/Bowet, Henry


text: Dictionary of National Biography, 1885-1900/Bowie, James


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 he had a controversy with [q. v.] about the descent of Christ into hell. Guest remained in England throughout Mary's reign, only escaping arrest by a constant change of hiding-place. On Elizabeth's accession he entered Parker's household as domestic chaplain early in 1559 (Cole MS. 5815, f. 5). His moderate opinions recommended him to Cecil in settling the affairs of the reformed church. He was chosen one of its defenders in the famous disputation in Westminster Abbey (begun 30 March 1559), but it ended before his paper could be read. He was also made one of the revisers of the liturgy before it was submitted to Elizabeth's first parliament, and himself took the new service book, when finished, to Cecil, with a letter explaining his reasons for the alterations (see No. 6 of his works below). In August 1559 he vainly solicited the deanery of Worcester; but the queen, to whom he was known through Cecil and Parker, appointed him archdeacon of Canterbury in October 1559. His first official act was the installation of his patron Parker as archbishop, 17 Dec. 1559. He remained celibate, and so retained the queen's favour. On 24 Jan. 1559-60 he was consecrated bishop of Rochester by Parker at Lambeth (, Fasti, ii. 571). Guest was licensed to keep the rectory of Cliffe in Kent and his archdeaconry. On 16 Oct. 1560 Parker (Correspondence, p. 123) solicited the vacant see of Durham for him, but Elizabeth refused to send him so far north. He was her chief almoner from 1560 to 1572, and was made chancellor of the order of the Garter about this time (1560). He attended the queen on her visit to Cambridge (5 Aug. 1564), walking bareheaded in the procession with Cox, bishop of Ely, to whose care Watson, the deprived bishop of Lincoln, then living with Guest at Rochester, was afterwards transferred. In 1564 also he signed the book of advertisements, and took a prominent part in the dispute now raging about the real presence, in favour of which he preached a sermon at Rochester. In 1565-6 Elizabeth made him one of her Lent preachers. As a final proof of her favour she also promoted him on Jewel's death (September 1571) to the bishopric of Salisbury. In the same year Guest took his D.D. at Cambridge. He died, aged about 61, 28 Feb. 1577, and was buried in the choir of Salisbury Cathedral, under a brass put there by his executor, George Estcourt, and since removed to the north-east transept. The effigy represents him with his 'hair short, moustachios on his lip.' Guest was a considerable benefactor to Salisbury. He left all his books to the cathedral library, for which his predecessor [q. v.] had erected a beautiful building, and 20l to the poor of the city. He was a man of learning and of mild but firm character. While taking part with ardour in the theological disputes of his time, he never displayed the acrimonious spirit of his fellow-reformers. Among his numerous friends at court he was most intimate with Cecil, Hatton, and Bacon, to each of whom he left a mourning ring and 40s. in his will.

Guest's works were:
 * 1) ‘De Christi Præsentia in Cœna.’
 * 2) ‘De Libero Hominis Arbitrio.’
 * 3) ‘Disputation at Cambridge on the Sacraments,’ 1549.
 * 4) ‘Arguments … against … [using] a Tongue unknown to the People in Common Prayer and administration of the Sacraments,’ printed in Dugdale's ‘Life,’ Append, v.
 * 5) ‘The Protestants’ Discourse; prepared to have been read in the Public Conference at Westminster,’ printed in Dugdale's ‘Life,’ Append, vi.
 * 6) ‘A long Letter (to Sir William Cecil) concerning Ceremonies, the Cross, the Creed, &c.,’ written by Dr. Guest before his promotion to the see of Rochester (C.C.C. MS. cvi. 137; see  Catalogue, p. 91), printed in Dugdale's ‘Life,’ Append, iv., and Strype's ‘Annals,’ vol. i. Append, xiv.
 * 7) ‘A Sermon on Mark i. 15; Repent and believe the Gospel,’ preached (probably at court) 1560 (C.C.C. MS. civ. 66;  Catalogue, p. 77), printed in Dugdale's ‘Life,' Append, vii.
 * 8) ‘Proof that the Apparel of Priests may be Worn, in answer to former Objections’ (Lansd. MS. vii. art. 92), printed in Dugdale's ‘Life,’ Append, viii., and Strype's ‘Parker,’ Append, xxxi.
 * 9) ‘A Question demanded upon the matter of Scotland, resolved by Bishop Guest, pro defensione religionis,’ September 1565 (Lansd. MS. viii. art. 19).
 * 10) ‘Translation of the Psalms in the Bishop's Bible.’ The translation of the Epistle to the Romans in this Bible, ascribed to Guest, seems to have been by Richard Cox, bishop of Ely.
 * 11) Letter to Parker, that he had sent the archbishop the part of the new translation of the Bible which had been assigned him (C.C.C. MS. cix. 162;  Catalogue, p. 152).

[Life by Henry Gheast Dugdale, London 1840, 8vo; Cooper's Athenæ Cantabr. i. 361; Cooper's Annals, ii. 31, 188; Wood's Athenæ Oxon. ed. Bliss, ii. 787, 808, 836; Kennett MS. xlvii. 157; Le Neve's Fasti, i. 43, ii. 571, 606; Rymer's Fœdera; Lemon's Calendar of State Papers, 1547-1580, pp.137, 284; Hasted's Kent, ii. 42, iv. 786; Alumni Eton. p. 155; Parker's Corresp. pp. 123, 240, 250; Bale, pt. ii. p. 107; Dorman against Nowell, f. 52 and 103; Goodwin's Catalogue, p. 355; Tanner's Bibl. Brit. p. 315; Strype's Annals (ed. 1824), vol. i. pt. i. pp. 120, 129, 199, 214,


text: Dictionary of National Biography, 1885-1900/Bowles, Edward


text: Dictionary of National Biography, 1885-1900/Bowles, John


text: Dictionary of National Biography, 1885-1900/Bowles, George


text: Dictionary of National Biography, 1885-1900/Bowles, Phineas


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FIRST encountered my fellow—passengers on the Broomielaw in Glasgow. Thence we descended the Clyde in no familiar spirit, but looking askance on each other as on possible enemies. A few Scandinavians, who had already grown acquainted on the North Sea, were friendly and voluble over their long pipes; but among English speakers distance and suspicion reigned supreme. The sun was soon overclouded, the wind freshened and grew sharp as we continued to descend the widening estuary; and with the falling temperature the gloom among the passengers increased. Two of the women wept. Any one who had come aboard might have supposed we were all absconding from the law. There was scarce a word interchanged, and no common sentiment but that of cold united us, until at length, having touched at Greenock, a pointing arm and a rush to the starboard now announced that our ocean steamer was in sight. There she lay in mid-river, at the tail of the Bank, her sea-signal


text: Dictionary of National Biography, 1885-1900/Bowles, William


text:
Author:Richard Muther

Works

 * (Recent Dutch, German, Austrian, Italian, Spanish, Danish, Swedish, Nowegian, Russian and Balkan States)

title: Author:Richard Muther


text: Dictionary of National Biography, 1885-1900/Bowles, William Lisle


text:
In re U.S. Truck Co.

ON APPEAL from the United States District Court for the Eastern District of Michigan.

The District Court's judgment is affirmed.

Gerry M. Miller, Larry R. Steffes, Goldberg, Previant, Uelman, Gratz, Miller and Brueggeman, Kenneth Dau-Schmidt, Argued, for Appellant.

Joseph S. Radom, P.C., Thomas B. Radom, Argued, George Arlen Pack, Marco, Eagan, Kennedy & Timmis, for Appellee.

Kennedy and Milburn, Circuit Judges; and Peck, Senior Circuit Judge.

title: In re U.S. Truck Co.


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 Honiton has become famous for its lace, although actually the manufacture does not take place to any considerable extent in the town, but in villages, as Beer, Branscombe, Ottery, etc.

In the beginning of the sixteenth century Honiton was a centre of a flourishing trade in bone-lace, but how it was introduced is very uncertain. It has been supposed, but not proved, that Flemish refugees came to Honiton and introduced the art, but one does not quite see why they should have come so far. There is an inscription on a tombstone in Honiton churchyard to James Rodge, bone-lace seller, who died July 27th, 1617, and bequeathed to the poor of the parish the benefit of a hundred pounds. A similar bequest was made in the same year by Mrs. Minifie, a lace maker, so that both lace dealer and maker may have carried on their business for thirty years before they died.

In the latter part of James I.'s reign Honiton lace is frequently mentioned by contemporary writers. Westcote, in his View of Devon, 1620, says, "At Axminster you may be furnished with fine flax-thread there spunne. At Hemington and Bradnich with bone-laces now greatly in request." Acts were passed under Charles I. for the protection of the bone-lace makers, "prohibiting foreign purles, cut works, and bone-laces, or any commodities laced or edged therewith;" and these benefited especially the Devonshire workers, their goods being close imitations of the much-coveted Flemish pillow-laces.

Pillow-lace was preceded in England, as elsewhere, by darned netting and cut-work. A fine


text: Page:Library of Congress Classification Outline.djvu/320


text:
In re U.S. Truck Co./Opinion of the Court

[p582] KENNEDY, Circuit Judge.

The Teamsters National Freight Industry Negotiating Committee (the Teamsters Committee), a creditor of U.S. Truck Company, Inc. (U.S. Truck) -- the debtor-in-possession in this Chapter 11 bankruptcy proceeding -- appeals the District Court's order confirming U.S. Truck's Fifth Amended Plan of Reorganization. The Teamsters Committee complains that the plan does not satisfy three of the requirements of 11 U.S.C. § 1129. The District Court, which presided over the matter after the resignation of Bankruptcy Judge Stanley B. Bernstein, held that the requirements of section 1129 had been satisfied. We agree.

I
Underlying this appeal is the Teamsters Committee's claim that U.S. Truck is liable to its employees for rejecting a collective [p583]  bargaining agreement between the local union and U.S. Truck. After filing its petition for relief under Chapter 11 of the Bankruptcy Code on June 11, 1982, U.S. Truck, a trucking company primarily engaged in intrastate shipping of parts and supplies for the automotive industry, sought to reject the collective bargaining agreement. U.S. Truck rejected the agreement with the approval of then-Bankruptcy-Judge Woods, in December 1982. Judge Woods found that rejection of the agreement was "absolutely necessary to save the debtor from collapse." Memorandum Opinion and Order, December 6, 1982, at page 8. New agreements have been negotiated to the satisfaction of each participating local union. Such agreements have been implemented over the lone dissent of the Teamsters Joint Area Rider Committee. Under the most recently mentioned agreement in the record (due to have expired in March 1985), U.S. Truck was able to record monthly profits in the range of $125,000 to $250,000. These new agreements achieved such results by reducing wages and requiring employees to buy their own trucking equipment, which the employees then leased to the company.

The parties agreed to an estimate of the size of the Teamsters Committee claim against U.S. Truck so that the confirmation plan could be considered. The District Court held a hearing to consider the plan on January 23, 1985. The court considered three objections by the Teamsters Committee to the plan. Consideration of the objections, and the court's treatment of them, requires an understanding of the statutory scheme for approval of a chapter 11 reorganization plan.

II
Section 1129 contains two means by which a reorganization plan can be confirmed. The first way is to meet all eleven of the requirements of subsection (a), including (a)(8) which requires all impaired classes of claims or interests to accept the plan. The other way is to meet the requirements of subsection (b), which, first, incorporates all of the requirements of subsection (a), except for that contained in subsection (a)(8), and, second, imposes two additional requirements. Confirmation under subsection (b) is commonly referred to as a "cram down" because it permits a reorganization plan to go into effect over the objections of one or more impaired classes of creditors. In this case, U.S. Truck sought approval of its plan under this "cram down" provision.

III
The Teamsters Committee's first objection is that the plan does not meet the requirement that at least one class of impaired [p584]  claims accept the plan, see 11 U.S.C. § 1129(a)(10), because U.S. Truck impermissibly gerrymandered the classes in order to neutralize the Teamsters Committee's dissenting vote. The reorganization plan contains twelve classes. The plan purports to impair five of these classes -- Class VI (the secured claim of Manufacturer's National Bank of Detroit based on a mortgage); Class VII (the secured claim of John Graham, Trustee of Transportation Services, Inc., based on a loan); Class IX (the Teamsters Committee's claim based on rejection of the collective bargaining agreement); Class XI (all secured claims in excess of $200.00 including those arising from the rejection of executory contracts); and Class XII (the equity interest of the stockholder of the debtor). As noted above, section 1129(a)(10), as incorporated into subsection (b)(1), requires at least one of these classes of impaired claims to approve the reorganization plan before it can be confirmed. The parties agree that approval by Class XII would not count because acceptance must be determined without including the acceptance of the plan by any insider. See 11 U.S.C. § 1129(a)(10). The Code's definition of "insider" clearly includes McKinlay Transport, Inc. See 11 U.S.C. § 101 (25)(B)(iii), (30). Thus, compliance with subsection (a)(10) depends on whether either of the other three classes that approved the plan -- Class VI, Class VII, or Class XI -- was a properly constructed impaired class. The Teamsters Committee argues that Classes VI and VII were not truly impaired classes and that Class XI should have included Class IX, and hence was an improperly constructed class. Because we find that Class XI was a properly constructed class of impaired claims, we hold that the plan complies with subsection (a)(10).

The issue raised by the Teamsters Committee's challenge is under what circumstances does the Bankruptcy Code permit a debtor to keep a creditor out of a class of impaired claims which are of a similar legal nature and are against the same property as those of the "isolated" creditor. The District Court held that the Code permits such action here because of the following circumstances: (1) the employees represented by the Teamsters Committee have a unique continued interest in the ongoing business of the debtor; (2) the mechanics of the Teamsters Committee's claim differ substantially from those of the Class XI claims; and (3) the Teamsters Committee's claim is likely to become part of the agenda of future collective bargaining sessions between the union and the reorganized company. See 47 Bankr. at 939-40. Thus, according to the court, the interests of the Teamsters Committee are substantially dissimilar from those of the creditors in Class XI. We must decide whether the Code permits separate classification under such circumstances.

Congress has sent mixed signals on the issue that we must decide. Our starting point is 11 U.S.C. § 1122.

§ 1122. Classification of claims or interests

 * (a) Except as provided in subsection (b) of this section, a plan may place a claim or an interest in a particular class only if such claim or interest is substantially similar to the other claims or interests of such class.

 * (b) A plan may designate a separate class of claims consisting only of every unsecured claim that is less than or reduced to an amount that the court approves as reasonable and necessary for administrative convenience.

[p585] The statute, by its express language, only addresses the problem of dissimilar claims being included in the same class. It does not address the correlative problem -- the one we face here -- of similar claims being put in different classes. Some courts have seized upon this omission, and have held that the Code does not require a debtor to put similar claims in the same class.

"We think the courts erred in holding that section 1122(a) prohibits classification based on the presence of a co-debtor. Section 1122(a) specifies that only claims which are 'substantially similar' may be placed in the same class. It does not require that similar claims must be grouped together, but merely that any group created must be homogenous. See 5 Collier on Bankruptcy para. 1122.03[1][b] at 1122-6 (15th ed. 1982); accord, In re Gay, 3 Bankr. 336 (Bkrtcy.D.Colo. 1980); In re Kovich, 4 Bankr. 403 (Bkrtcy.W.D.Mich. 1980). Although some courts have held that section 1122(a) prohibits classification based on any criterion other than legal right to the debtor's assets, see, e.g., In re Iacovoni, 2 Bankr. 256, 260-61 (Bkrtcy.D.Utah), the plain language of the statute contradicts such a construction. Moreover, section 1122(a) so interpreted would conflict with section 1322(b)(1), which specifically authorizes designation of more than one class of unsecured creditor, each presumably with equal legal rights to the debtor's estate."

Barnes v. Whelan, 223 U.S. App. D.C. 10, 689 F.2d 193, 201 (D.C. Cir. 1982) (emphasis in original) (holding that Chapter 13 debtor may group his unsecured debtors according to whether or not a co-debtor is present); see also In re Planes, 48 Bankr. 698, 701 (Bkrtcy. N.D.Ga. 1985); In re Moore, 31 Bankr. 12, 16 (Bkrtcy.D.S.C. 1983).

Further evidence that Congress intentionally failed to impose a requirement that similar claims be classified together is found by examining the "classification" sections of the former Bankruptcy Act. The applicable former provisions were 11 U.S.C., sections 597 (from former Chapter X) and 751 (from former Chapter XI).

§ 597. Classification of creditors and stockholders

 * For the purposes of the plan and its acceptance, the judge shall fix the division of creditors and stockholders into classes according to the nature of their respective claims and stock. For the purposes of such classification, the judge shall, if necessary, upon the application of the trustee, the debtor, any creditor, or an indenture trustee, fix a hearing upon notice to the holders of secured claims, the debtor, the trustee, and such other persons as the judge may designate, to determine summarily the value of the security and classify as unsecured the amount in excess of such value.

§ 751. Classification of creditors

 * For the purposes of the arrangement and its acceptance, the court may fix the division of creditors into classes and, in the event of controversy, the court shall after hearing upon notice summarily determine such controversy.

Section 597 was interpreted to require all creditors of equal rank with claims against the same property to be placed in the same class. See In re Los Angeles Land and Investments, Ltd., 282 F. Supp. 448, 453 (D. Hawaii 1968) (quoting In re Scherk v. Newton, 152 F.2d 747 (10th Cir. 1945), aff'd, 447 F.2d 1366 (9th Cir. 1971)). Congress' switch to less restrictive language in section 1122 of the Code seems to warrant a conclusion that Congress no longer intended to impose the now-omitted requirement that similar claims be classified together. See Matter of Huckabee Auto Co., 33 Bankr. 132, 137 (Bkrtcy.M.D.Ga. 1981). However, the legislative history indicates that Congress may not have intended to change the prior rule. The Notes of the Senate Committee on the Judiciary state:

"This section [1122] codifies current case law surrounding the classification of claims and equity securities. It requires classification based on the nature of the claims or interests classified, and permits inclusion of claims or interests in a particular class only if the claim or interest [p586] being included is substantially similar to the other claims or interests of the class."

S. Rep. No. 989, 95th Cong., 2d Sess. 118, reprinted in 1978 U.S.C.ode Cong. & Ad. News 5787, 5904.

It is difficult to follow Congress' instruction to apply the old case law to the new Code provision. The old case law comes from two different sources. Chapter X of the old Act was designed for thorough financial reorganizations of large corporations. It imposed a very formal and rigid structure to protect the investing public. Chapter XI was designed for small nonpublic businesses, did not permit the adjustment of a secured debt or of equity, and thus contained few investor-protection measures. The idea behind Chapter 11 of the Code was to combine the speed and flexibility of Chapter XI with some of the protection and remedial tools of Chapter X. See H. Rep. No. 595, 95th Cong., 1st Sess. 221-23, reprinted in 1978 U.S.C.ode Cong. & Ad. News 5963, 6181-83; Blair, Classification of Unsecured Claims in Chapter 11 Reorganization, 58 Am. Bankr. L.J. 197, 223 (1984). Thus, Congress has incorporated, for purposes of interpreting section 1122, the case law from two provisions with different language, that were adopted for different purposes, and that have been interpreted to mean different things.

In this case, U.S. Truck is using its classification powers to segregate dissenting (impaired) creditors from assenting (impaired) creditors (by putting the dissenters into a class or classes by themselves) and, thus, it is assured that at least one class of impaired creditors will vote for the plan and make it eligible for cram down consideration by the court. We agree with the Teamsters Committee that there must be some limit on a debtor's power to classify creditors in such a manner. The potential for abuse would be significant otherwise. Unless there is some requirement of keeping similar claims together, nothing would stand in the way of a debtor seeking out a few impaired creditors (or even one such creditor) who will vote for the plan and placing them in their own class.

We are unaware of any cases that deal with this problem as it arises in this case. As we noted above, the legislative history of the Code provides little assistance in determining what limits there are to segregating similar claims. Nevertheless, we do find one common theme in the prior case law that Congress incorporated into section 1122. In those pre-Code cases, the lower courts were given broad discretion to determine proper classification according to the factual circumstances of each individual case. See Anderson, Classification of Claims and Interests in Reorganization Cases Under the New Bankruptcy Code, 58 Am. Bankr. L.J. 99, 107 (1984); Blair, supra, at 212. We also find some guidance in two cases that considered the need to adjust the classification of creditors to account for differing postures and interests.

In First Nat'l Bank of Herkimer v. Poland Union, 109 F.2d 54 (2d Cir.), cert. denied, 309 U.S. 682, 60 S.C.t. 723, 84 L. Ed. 1026 (1940), two of the largest accepting creditors of a reorganization plan were also shareholders who stood to profit from a provision in the plan releasing their disputed liability to the debtor. The Second Circuit affirmed the lower court's denial of [p587]  confirmation, because it concluded that a lower court lacks the power to do what the plan required it to do -- restrain suits against shareholders. The court also noted, "In such circumstances, it may be doubtful whether [the shareholders/creditors] should be permitted to vote in the same class with other creditors not so intimately connected with the enterprise." Id., 109 F.2d at 55.

In ''American United Mut. Life Ins. Co. v. City of Avon Park'', 311 U.S. 138, 85 L. Ed. 91, 61 S.C.t. 157 (1940), the city's fiscal agent -- who administered the reorganization -- held claims on which he would enjoy significant profit from the plan. The Court refused confirmation because it was not clear that when the agent solicited the necessary votes from bondholders he had disclosed his interest. The Court noted that where investigation discloses "unfair dealing, a breach of fiduciary obligations, profiting from a trust, special benefits for the reorganizers, or the need for the protection of investors against an inside few, or of one class of investors from the encroachments of another, the court has ample power to adjust the remedy to meet the need." Id., 311 U.S. at 146. One remedy the Court mentioned was "the separate classification of claimants." Id., (citing Poland Union).

We find that the rationale of these two cases applies here. The District Court noted three important ways in which the interests of the Teamsters Committee differ substantially from those of the other impaired creditors. Because of these differences, the Teamsters Committee has a different stake in the future viability of the reorganized company and has alternative means at its disposal for protecting its claim. The Teamsters Committee's claim is connected with the collective bargaining process. In the words of the Committee's counsel, the union employees have a "virtually unique interest." See 47 Bankr. at 939. These differences put the Teamsters Committee's claim in a different posture than the Class XI claims. The Teamsters Committee may choose to reject the plan not because the plan is less than optimal to it as a creditor, but because the Teamsters Committee has a noncreditor interest -- e.g., rejection will benefit its members in the ongoing employment relationship. Although the Teamsters Committee certainly is not intimately connected with the debtor, to allow the Committee to vote with the other impaired creditors would be to allow it to prevent a court from considering confirmation of a plan that a significant group of creditors with similar interests have accepted. Permitting separate classification of the Teamsters Committee's claim does not automatically result in adoption of the plan. The Teamsters Committee is still protected by the provisions of subsections (a) and (b), particularly the requirements of subsection (b) that the plan not discriminate unfairly and that it be fair and equitable with respect to the Teamsters Committee's claim. In fact, the Teamsters Committee invokes those requirements, but as we note in the following sections, the plan does not violate them.

IV
The Teamsters Committee's second objection is that the plan is not fair and equitable. This objection focuses on the provision of the Plan that allows McKinlay Transport, Inc. to purchase all 100,000 shares of common stock from U.S. Truck for $100,000. The Teamsters Committee notes that McKinlay currently owns all of the existing common stock in U.S. Truck, and thus the Plan impermissibly permits an equity security holder (whose interest is junior to other creditors) to retain its ownership interest in the reorganized company. Section 1129(b) states:

(2) For the purpose of this subsection, the condition that a plan be fair and equitable with respect to a class includes the following requirements:

 * (B) With respect to a class of unsecured claims --

 * (i) the plan provides that each holder of a claim of such class receive or retain on account of such claim property [p588] of a value, as of the effective date of the plan, equal to the allowed amount of the claim; or

 * (ii) the holder of any claim or interest that is junior to the claims of such class will not receive or retain under the plan on account of such junior claim or interest any property.

The parties agree that subsection (B)(i) is not satisfied, and thus the issue is whether the Plan satisfies (B)(ii).

If McKinlay were retaining an interest without contributing any capital, the Plan would clearly violate the Code. See In re Genesee Cement, Inc., 31 Bankr. 442, 443 (Bkrtcy.E.D. Mich. 1983). But McKinlay is giving up its prior interest and participating in the reorganized company by making a $100,000 contribution. The question, put in terms of the Code's language, is whether McKinlay is receiving its interest in the reorganized company "on account of" its junior claim. This involves looking at the need for the contribution and whether McKinlay paid a fair price for its interest.

In Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 84 L. Ed. 110, 60 S.C.t. 1, reh'g denied, 308 U.S. 637, 60 S.C.t. 258, 84 L. Ed. 529 (1939), the Court validated stockholder participation in a plan of reorganization of an insolvent debtor.

"Especially in [Kansas City Terminal Ry. v. Central Union Trust Co., 271 U.S. 445, 70 L. Ed. 1028, 46 S.C.t. 549 (1926),] did this Court stress the necessity, at times, of seeking new money 'essential to the success of the undertaking' from the old stockholders. Where that necessity exists and the old stockholders make a fresh contribution and receive in return a participation reasonably equivalent to their contribution, no objection can be made." Id., 308 U.S. at 121. Applying the Supreme Court's standard to this case, we must decide whether the District Court was clearly erroneous in its findings supporting its conclusion that the contribution was substantial and "essential."

The relevant evidence on this issue is set forth in the District Court's opinion. 47 Bankr. at 942-43. The Teamsters Committee argues that $100,000 cannot possibly be essential or substantial when the debtor is reporting monthly profits of over $100,000. Considered alone, the monthly profit statistics make a strong argument for the Teamsters Committee's position. However, the District Court relied on other probative evidence that minimizes the relevance of those statistics. Significantly, the Teamsters Committee presented no independent evidence to support its objection. It relied solely on its ability to cross-examine U.S. Truck's witnesses.

The District Court heard testimony that investment in the reorganized company would be a risky proposition. There was no labor stability in light of the imminent expiration of a collective bargaining agreement that had been negotiated shortly after U.S. Truck filed for bankruptcy. As the Teamsters Committee points out, the then-current agreement was acceptable to the employees only because of the dire circumstances. Furthermore, the Teamsters Committee's own claim against the debtor is a substantial one and has not been resolved. The debtor's expert witness, Van Conway, testified that U.S. Truck was in a risky industry and that the other problems unique to it rendered income figures unreliable. Conway concluded that in light of all the facts, the contribution was essential. Again, the Teamsters Committee offered no refuting evidence. Under such circumstances, we conclude that the District Court's findings were not clearly erroneous.

V
The Teamsters Committee's final objection is that the Plan does not satisfy subsection [p589]  1129(a)(11). That subsection states that the confirmation is permitted only if it is "not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan . . ." The Teamsters Committee contends that because the debtor is under the control of a competitor, and will continue to be under such control as a reorganized company, the District Court erred in finding that it is not likely that the company will be liquidated.

The lines of corporate control indicate that U.S. Truck was, and will be, in the hands of a competing company. Agnes Anne Moroun will have sole ownership of the reorganized company. Moroun also holds 15% of the outstanding stock of CenTra, Incorporated, which in turn owns all of the outstanding stock of Central Transport Company, Central Cartage and GLS Leasco. McKinlay acquired all of the stock of U.S. Truck immediately after U.S. Truck filed its Chapter 11 petition. Since then, U.S. Truck has vacated its terminals and relocated its freight operations to terminals owned by the Central Group. The Central Group has also leased new trailers, tractors and high-lows to U.S. Truck. The Teamsters Committee complains that the Central Group can divert U.S. Truck business to itself and thus leave the reorganized company high and dry. The Teamsters Committee also noted that U.S. Truck's leases with the Central Group were oral and of unfixed duration, exposing the reorganized company to the risk that its favorable lease terms could be cancelled on a whim.

In light of the evidence available to the District Court, we conclude that the court's finding that the reorganized company is unlikely to liquidate is not clearly erroneous. The following factors are relevant to such a finding: (1) the adequacy of the capital structure; (2) the earning power of the business; (3) economic conditions; (4) the ability of management; (5) the probability of the continuation of the same management; and (6) any other related matter which determines the prospects of a sufficiently successful operation to enable performance of the provisions of the plan. See In re Landmark at Plaza Park, Ltd., 7 Bankr. 653, 659 (Bkrtcy.D.N.J. 1980). Neither party presented evidence or argument about the adequacy of the capital structure, although the Teamsters Committee has noted that U.S. Truck has resorted primarily to leasing of its equipment and machinery. The earning power, as discussed earlier, is a poor indicator of feasibility in this case. Management's ability has not been impugned, except in connection with the Teamsters Committee's argument that the Central Group will exert its control to the detriment of the reorganized company.

This case is largely controlled by "other related matters." For example, the Teamsters Committee complained about the unwritten leases. However, that concern was rendered meritless when many of the leases were put into writing and fixed at three to five year terms. The Teamsters Committee has made no showing that there are other unwritten leases that continue to pose the alleged threat.

The next matter is the labor contracts. Although, as noted before, the reorganized company cannot count on the level of concessions it gained originally, labor had indicated a sincere willingness to cooperate and to ensure continued viability. It also should be noted that the Teamsters Committee and the union members as a whole -- i.e., the ones who have the greatest interest in preservation of the Class IX claim (among other claims) -- have a significant [p590]  role in the feasibility of the plan. If they are truly concerned about feasibility, they are also able to help achieve it.

This leaves us with the question whether the Central Group will divert business. The District Court found no evidence that this would happen. The Teamsters Committee has failed to offer a compelling reason to believe that the Central Group, which profits from U.S. Truck's operations, would be motivated to shift that business around.

The District Court noted that there is an inherent tension in determining that a capital contribution by current shareholders is necessary (because of the precarious position of the reorganized company) and then determining that that plan is not likely to fail. In the context of this case, that tension is resolved by the court's finding that the capital contribution is both necessary and sufficient to make the plan work. Neither that finding, nor any one of those mentioned above, is clearly erroneous.

The District Court's judgment is affirmed.


text:
Author:Alexander Stuart Murray

Works

 * Manual of Mythology, 1873
 * History of Greek Sculpture, 1880–1883

Contributions to EB1911

 * (in part)
 * (II. (in part))

title: Author:Alexander Stuart Murray


text: Author:Henry Smith Munroe

title: Author:Henry Smith Munroe


text:
Page:The Amateur Emigrant-The Silverado Squatters.djvu/24

 flying: a wall of bulwark, a street of white deck-houses, an aspiring forest of spars, larger than a church, and soon to be as populous as many an incorporated town in the land to which she was to bear us.

I was not, in truth, a steerage passenger. Although anxious to see the worst of emigrant life, I had some work to finish on the voyage, and was advised to go by the second cabin, where at least I should have a table at command. The advice was excellent; but to understand the choice, and what I gained, some outline of the internal disposition of the ship will first be necessary. In her very nose is Steerage No. 1, down two pair of stairs. A little abaft, another companion, labelled Steerage No. 2 and 3, gives admission to three galleries, two running forward towards Steerage No. 1; and the third aft towards the engines. The starboard forward gallery is the second cabin. Away abaft the engines and below the officers' cabins, to complete our survey of the vessel, there is yet a third nest of steerages, labelled 4 and 5. The second cabin, to return, is thus a modified oasis in the very heart of the steerages. Through the thin partition you can hear the steerage passengers being sick, the rattle of tin dishes as they sit at meals, the varied accents in which they converse, the crying of their children terrified by this new experience,


text:
Flynn v. Hubbard/Opinion of the Court

BOWNES, Circuit Judge.
The question in this case is whether intervention under Federal Rule of Civil Procedure 24(a)(2) or 24(b)(2) was properly denied where the sole named defendant has, as yet, failed to appear. The plaintiff-appellee, Michael J. Flynn, is a Massachusetts attorney who has sued various Churches of Scientology and individual Scientologists over a number of years. L. Ron Hubbard, the defendant, is the founder of Scientology. On September 7, 1983, Flynn brought the complaint in this case naming Hubbard as the sole defendant and alleging that Hubbard had caused a wide range of torts to be committed against him.

The complaint alleges a written conspiracy by Hubbard and his individual and organizational agents and employees "to destroy" Flynn. This conspiracy was carried out, it is alleged, by various named Scientology organizations and individuals over which Hubbard has absolute authority. The torts alleged to have been committed at Hubbard's direction are: malicious abuse of process; malicious prosecution; intentional infliction of emotional distress; trespass; conversion; interference with contractual rights; invasion of privacy; unfair or deceptive practices in violation of Mass.Gen.Laws Ann. ch. 93A; assault and *1086 battery; and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68. There are no allegations in the complaint that Hubbard, acting by himself, committed any torts against Flynn; all torts it is alleged were committed by Hubbard's agents and/or employees. The putative intervenors are the Church of Scientology of California (CSC) and Mary Sue Hubbard, wife of the defendant. Both are named in the complaint as coconspirators. In addition to filing motions to intervene, CSC and Mary Sue Hubbard filed answers to the complaint. Mary Sue Hubbard also filed a counterclaim for malicious prosecution, abuse of process and libel. We note in passing that the tone, tenor, and language of the voluminous pleadings, affidavits and exhibits filed in this case (over 1,500 pages) is, at times, so accusatory, emotional and vitriolic as to make the reading of them a decidedly unpleasant chore.

CSC identified four "interests" that would be impaired or impeded unless intervention was allowed:

1. an interest in preventing its own actions, many of which it claims are protected under the first amendment or state law, from serving as a predicate for a judgment against the founder of the church and its spiritual leader;

2. an interest in defending both its own reputation and that of its revered founder; 3. an economic interest based on its fear that plaintiff will attempt to enforce any judgment by levying on church property;

4. an interest in preventing plaintiff from making offensive collateral estoppel use of a default judgment in the present action in other litigation now pending elsewhere against the church.

We note that all of these interests are based on the assumption that the defendant will not appear and there will be a default judgment against him.

Mrs. Hubbard asserted two interests that would be impaired unless she could intervene: 1. an economic interest based on the claim that she is wholly dependent on the defendant for her support and that a depletion or diminution of his assets will have an adverse effect on her and deprive her of her inheritance;

2. an interest in protecting her reputation which she claims is impugned by the allegations in the complaint.

Her interests, as with those of CSC, are based on the assumption that defendant will not appear and there will be a default judgment.

After a lengthy hearing on April 15, 1985, the district court, on April 22, 1985, denied the motions to intervene. No written opinion stating the reasons for the decision issued. Plaintiff's motion for substituted service on defendant was granted on May 31, 1985, and service was made accordingly.

[1] In this circuit, an immediate appeal lies from the denial of a motion to intervene under Rule 24(a)(2). Kartell v. Blue Shield of Massachusetts, Inc., 687 F.2d 543, 548 (1st Cir.1982). The parameters of appellate review are, however, not so clear. We have held that "[t]he district court is to exercise its discretion in determining timeliness, and its ruling will not be disturbed on review unless there is an abuse of discretion." Chase Manhattan Bank v. Corporacion Hotelera de Puerto Rico, 516 F.2d 1047, 1049 (1st Cir.1975). The Second Circuit has applied the abuse of discretion standard to all 24(a)(2) findings because of "the great variety of factual circumstances in which intervention motions must be decided." United States v. Hooker Chemicals & Plastics Corp., 749 F.2d 968, 991 (2d Cir.1984). But here, we are faced with a question of law: Can intervention be granted when the only defendant in the case has not appeared. This means that the standard of review is whether the court committed legal error in denying intervention.

Both putative intervenors make it clear that it is the failure of defendant to appear that has prompted their motions to intervene. They argue that Hubbard will not appear, a default judgment will be entered against him and they will be irreparably harmed if they cannot intervene. In her counterclaim, Mary Sue Hubbard states: "8. Scientology Founder L. Ron Hubbard went into seclusion in approximately March, 1980, and has not been seen by his family, or by any Church office, since that date." Plaintiff, on the other hand, asserts that Hubbard will appear to prevent a default judgment.

We are in no position to determine whether Hubbard will or will not appear. We do know, however, that failure of a defendant to appear is a unique reason for intervention. We have been unable to find any federal cases in which intervention has been allowed or denied under Rule 24 because the defendant has failed to appear. This does not, of course, automatically preclude intervention; it does mean, however, that we must examine the law carefully to determine if intervention is warranted.

Federal Rule of Civil Procedure 24(a)(2) provides:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

There is nothing in the Notes of The Advisory Committee on Rules adverting to intervention when the defendant has failed to appear. The wording of the rule itself suggests that it may only apply when the named defendant has appeared and is protecting his or her interests. The last phrase, particularly, referring to "existing parties" suggests a case cast in the traditional mold with a viable dispute between plaintiff and defendant.

[2] We now turn to the case law to determine whether intervention should be permitted when the sole defendant has by deliberate choice failed to appear. [FN1] The seminal case on the scope and meaning of Rule 24 is Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967). In that case, the Court reversed the district court's denial of intervention in a divestiture suit arising from violations of § 7 of the Clayton Act. The Court explored the differences between the present rule and its predecessor. It held that intervention should be granted because Rule 24(a)(2) "recognizes as a proper element in intervention 'an interest' in the 'transaction which is the subject of the action,' " id at 135, 87 S.Ct. at 936, and because the existing parties "have fallen far short of representing ... [the intervenor's] interests." Id. at 136, 87 S.Ct. at 937. Giving Cascade the broadest possible reading, we do not think it affords any basis for the proposition that if an individual has an interest in a case, as defined by the rule, he or she can intervene absent a defendant. The Court gave two reasons for allowing intervention, "an interest in the transaction" and the failure of the "existing parties" to represent the intervenor's interests. Here, Hubbard has not appeared to date; until or unless he does, it cannot be determined whether he will or can represent adequately the interests of the putative intervenors.

FN1. No suggestion has been made that defendant's physical or mental condition has prevented his appearance. We take judicial notice that a science fiction book by him, The Invaders Plan, was published after oral argument and received a favorable review in the Sunday Book Review section of the New York Times.

Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971), also focused on the scope and meaning of Rule 24(a)(2). Donaldson's income tax returns were under investigation by the Internal Revenue Service. A special agent of the IRS served summonses on the former corporate employer of Donaldson and its *1088 accountant ordering them to testify and produce records pertaining to Donaldson. Shortly prior to the issuance of the summonses, the United States District Court, acting on petitions filed by Donaldson, issued temporary restraining orders and then a preliminary injunction restraining the corporation and its accountant from complying with the summons until the court acted. The government and the IRS agent filed petitions in the same district court for judicial enforcement of the summonses. Id. at 518-20, 91 S.Ct. at 536-37. After a show cause order issued, Donaldson sought to intervene in the enforcement proceedings pursuant to Rule 24(a)(2). The district court denied the motion to intervene and ordered that the summonses be enforced. Id. at 521-22, 91 S.Ct. at 537- 38. The Court held that a taxpayer may not intervene of right "simply because it is his tax liability that is the subject of the summons." Id. at 530, 91 S.Ct. at 542. After considering Donaldson's particular situation, the Court concluded that he did not have an interest in the enforcement proceedings within the meaning of Rule 24(a)(2). Id. at 531, 91 S.Ct. at 542. Neither the holding nor reasoning of Donaldson is of help to the putative intervenors here.

Mrs. Hubbard relies on SEC v. Flight Transportation Corp., 699 F.2d 943 (8th Cir.1983), as authority for her right to intervene based on her economic interest in the assets of her husband. In that case, the SEC commenced an action against Flight Transportation Corp., two subsidiary corporations, and William Rubin, President and Chairman of the Board of Directors and Chief Executive Officer of the three corporations. Shortly thereafter, a class action by Flight Transportation's securities holders was commenced. This was followed by an involuntary bankruptcy petition against Flight Transportation. A stay of the bankruptcy proceedings and all proceedings in any state or federal court against the corporations and William Rubin was ordered. Joyce Rubin, wife of William, had filed a state action for divorce. She moved to intervene and for a modification of the stay order so that her divorce action could proceed. The district court denied her motion to intervene. The court of appeals reversed. It held that "Joyce Rubin may be unable, as a practical matter, to protect her interests if she cannot intervene" and that "the existing parties cannot be expected to represent Joyce Rubin's interests adequately." Id. at 949. William Rubin was at all times one of the defendants. That case may be good authority for the proposition that a wife who has instituted a divorce action has a right to intervene to protect her economic marital interests in a SEC action with bankruptcy overtones against her husband and his corporations. It has no bearing, however, on a tort action like this, where the husband has failed to appear.

As already noted, we have found no federal cases allowing or denying intervention where the defendant has failed to appear. There is, however, one state case directly on point. Not surprisingly, the defendant is the same person as in the case before us, L. Ron Hubbard. In Samuels v. Hubbard, 71 Or.App. 481, 692 P.2d 700 (1984), the court held that the Church of Scientology of California, Inc., and Church of Scientology, Mission of Davis, had no right, under Oregon law, to intervene as of right in a tort action against Hubbard. As here, the plaintiff in the Oregon case alleged that Hubbard directed and controlled others to commit torts against him. The torts alleged are similar to the ones alleged here: conversion, outrageous conduct, defamation and fraud. And, as here, defendant failed to appear and the putative intervenors asserted that he would not appear. The Oregon court was careful to point out: "The record shows only that he [Hubbard] has not yet appeared." 692 P.2d at 703 n. 1. [3] What CSC and Mrs. Hubbard really seek here is not intervention, but to be substituted as defendants for the defendant plaintiff chose to sue. There can be no question that plaintiff has stated a cause of *1089 action against the defendant. Plaintiff could have sued both CSC and Mrs. Hubbard but deliberately decided not to do so. If we were to allow intervention, despite defendant's failure to appear, we would be forcing our choice of defendants on plaintiff. We see no reason why, in a tort action, the plaintiff's choice of defendant should be nullified by substituting under the guise of intervention different joint tort-feasors than the one against whom the suit was brought. Under Federal Rule of Civil Procedure 19, the companion to Rule 24, joint tort-feasors need not be joined since each is liable for the entire amount of the recovery. State of Maine v. United States Department of Labor, 669 F.2d 827, 832 (1st Cir.1982); 7 C. Wright & A. Miller, Federal Practice and Procedure § 1623 at 241 (1972). The same reasoning applies to intervention under Rule 24(a)(2).

[4] It would be premature to decide now whether the interests asserted by CSC and Mrs. Hubbard meet the requirements of Rule 24. Although we disagree with both intervenors as to the effect of a default judgment on them, [FN2] it is the defendant's willful action in failing to appear that has subjected them to whatever risks such a judgment may pose. There is and can be no suggestion that this is a collusive suit between plaintiff and defendant in an attempt to somehow indirectly impose liability on CSC and Mrs. Hubbard. Plaintiff has made defendant the sole target of his action. Whatever carom effect may occur is the direct result of defendant's failure to appear. We hold that because the sole defendant has chosen not to appear in this tort action, there can be no intervention by the joint tort-feasors under Rule 24(a)(2) until and unless the defendant appears.

FN2. It is black letter law that those not a party to an action are not bound by an adverse judgment against the named defendant.

[5] Intervention is also sought under Rule 24(b)(2). This allows intervention "when an applicant's claim or defense and the main action have a question of law or fact in common." The rule further states: "In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Our opinion makes it clear that the district court did not abuse its discretion in denying permissive intervention. Affirmed. Costs to appellee.

COFFIN, Circuit Judge, (concurring).
I believe the court misapplies Federal Rule of Civil Procedure 24(a)(2) in finding that intervention should not be granted when the only defendant in the case has not appeared. The court holds that the rule can only be applied to cases involving parties actually arguing in court because the rule refers to "existing parties". The phrase "existing parties" appears in the rule's third requirement: a party who satisfies the rule's first two requirements shall be permitted to intervene "unless the applicant's interest is adequately represented by existing parties". My brothers claim that this requirement can be satisfied only when the named defendant "has appeared and is protecting his or her own interests". Until that time, they believe "it cannot be determined whether he will or can represent adequately the interests of the putative intervenors".

I believe this unique interpretation of Rule 24(a)(2) is unsupported by, and is contrary to, the language of the rule, the rule's purpose, and the relevant case law. But I concur in the judgment of the court because I find that appellants fail to meet the rule's interest and impairment requirements.

I
The reading of "existing parties" as referring solely to named parties who actually *1090 appear in court and protect their own interests does not follow from the language of the rule. I think that the reasonable reading of "existing" is that it modifies "parties" to distinguish such from parties not formally in the litigation; that is, "existing parties" refers to the actual parties named in a litigation, as opposed to the nonparties seeking to intervene. See, e.g., Arkansas Power & Light Company v. Arkansas Public Service Commission, 107 F.R.D. 335, 340 (E.D.Ark.1985) (interests asserted by would-be intervenors are "adequately protected by those that are already parties to this litigation ") (emphasis added). See also Woolworth v. Miscellaneous Warehouseman's Union, 629 F.2d 1204, 1213 (7th Cir.1980).

The court's reading also fails to reconcile its interpretation with the purpose behind the intervention rule. Rule 24(a)(2) is designed to allow participation in a litigation by nonparties whose interests may be impaired. To avoid judicial inefficiency, however, the rule contains an adequacy of representation requirement, which precludes intervention when a nonparty's interests are already adequately represented by an existing party.

Because this requirement may preclude parties from intervening even when they have protectible interests, applicants need only make a minimal showing of inadequate representation. Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972). Intervention will be granted, if the other conditions are satisfied, unless the court is persuaded that the representation of the nonparty is in fact adequate. Wright & Miller, Federal Practice and Procedure 519. If the applicant shows that the representation may be inadequate, see Trbovich, 404 U.S. at 538 n. 10, 92 S.Ct. at 636 n. 10, then the court is precluded from finding that the interest is adequately represented. Note, Duke L.J. 117, 129 (1968).

The court's decision to exclude from this rule's scope cases in which the named defendant has chosen not to appear runs counter to the goal of protecting those who are not otherwise represented. Indeed, if the other conditions are satisfied, this type of situation presents the clearest need for permitting intervention because the nonparties' interests will not be represented at all. Wright & Miller, supra, at 524. "An interest that is not represented is surely not adequately represented and intervention must be allowed." Id.

A denial of intervention might be justifiable if the named defendant was likely to appear and might then adequately represent the interests of the nonparty. That is neither my colleagues' position nor the posture of this case. Here, the record supports appellants' assertion that Hubbard will not appear, and it is that very fact on which the court bases its denial of intervention. Yet it provides no justification for declining to decide whether the lack of representation here constitutes "inadequate representation".

The court interprets the rule to apply only to "cases cast in the traditional mold with a viable dispute between plaintiff and defendant". Regardless of whether this type of litigation is traditional, it will adjudicate rights and may impair interests of nonparties. The court would apply Rule 24(a)(2) if the defendant appeared in court *1091 and defended merely by asserting that the plaintiff's charges were false, but would not apply it if the defendant stopped short of taking this small step. I fail to see any justification for creating such a formalistic distinction, not required by the rule, when the interests of nonparties may be equally impaired in either situation.

My brothers suggest that their position finds support from the only court, federal or state, that has addressed intervention in this type of case. In Samuels v. Hubbard, 71 Or.App. 481, 692 P.2d 700 (1984), the Oregon Court of Appeals denied intervention as of right to CSC and others in a tort action against Hubbard. I disagree with my brothers' suggestion for two reasons. First, the court interpreted a state intervention rule, somewhat stricter than Rule 24(a)(2). Id. at 704 & n. 5. According to the state court, a party entitled to intervene as of right under the federal rules might only qualify for "permissive intervention under Oregon law". Id. at 704 n. 5. Second, the court did not find the intervention rule inapplicable to a situation where the sole named defendant chooses not to appear, but denied intervention on the ground that any interests the applicants had in the litigation would not be impaired by a judgment against Hubbard. In a footnote, the state court observed that the record did not seem to support the applicants' assertion that Hubbard would not appear. My brethren infer from that statement that the state court denied intervention because Hubbard did not appear. To the contrary, the state court determined that even if there was "inadequate representation", either because Hubbard would not appear or would appear and inadequately defend applicants' interests, those interests were insufficient to require intervention. Id. at 705-06.

Federal courts faced with a somewhat similar situation have not taken the approach adopted by the court. These courts have addressed the situation where the named party appears at trial, loses, and chooses not to bring an appeal. An applicant has then sought to intervene for purposes of bringing the appeal. Courts have routinely found that Rule 24(a)(2) applies to this situation, even though the named defendant has not "appeared" for purposes of the appeal and has not "protect(ed) his or her interests". Moreover, these courts have found that the nonparty has satisfied the inadequacy of representation requirement because there will be no representation by the existing party. See, e.g., United States v. American Telephone and Telegraph Co., 642 F.2d 1285, 1293 (D.C.Cir.1980) (MCI was not adequately represented by the United States in the decision not to appeal); County of Fresno v. Andrus, 622 F.2d 436, 439 (9th Cir.1980) (unwillingness to take appeal indicates that existing party does not represent would-be intervenor fully).

For example, in Woolworth v. Miscellaneous Warehouseman's Union, 629 F.2d 1204 (7th Cir.1980), discharged employees sought to intervene as defendants in a suit brought by their employer against their union seeking to vacate an arbitration award ordering their reinstatement. The district court had granted the employer's motion for summary judgment and had vacated the award. After the union chose not to appeal the decision, the discharged employees moved to intervene for purposes of bringing the appeal. The Seventh Circuit found that the employees satisfied the interest and impairment requirements of Rule 24, and then addressed the adequacy of representation requirement. It stated *1092 that "since the Union has withdrawn from the case, the interests of the employees would not be adequately represented by existing parties". 629 F.2d at 1213.

Cases such as Woolworth are characterized as situations where the named party has been nonfeasant in its duty of representation. It is well-settled that nonfeasance constitutes inadequate representation. Cascade National Gas Corp. v. El Paso National Gas Co., 386 U.S. 129, 155, 87 S.Ct. 932, 947, 17 L.Ed.2d 814 (1967) (Stewart, J., dissenting) ("complete failure of representation by existing parties"); British Airways Board v. Port Authority of New York and New Jersey, 71 F.R.D. 583, 585 (S.D.N.Y.1976); Moore's Federal Practice 24.07[4] (2d ed. 1985). In fact, according to Professors Wright and Miller, "the easiest case is that in which the absentee ['s] ... interest is not represented at all." Wright & Miller, supra, at 519. A difficult question of adequacy of representation does not arise unless the applicant is represented in the action.

Nonfeasance of representation also describes the circumstances of the instant case, where the named party does not appear before the trial court. A party who fails to appear for trial and thus receives a default judgment has failed to represent the interests of the would-be intervenor. Thus, if the union in Woolworth failed to appear before the district court to challenge the employer's motion for summary judgment, the interests of the discharged employees would be left inadequately represented. Where significantly protectible interests of a putative party may be adversely affected in a litigation and the sole defendant chooses not to appear, intervention is warranted.

II.
My disagreement with the court's rather broad ruling, refusing to apply Rule 24(a)(2) whenever a named party has not appeared, is heightened by my conviction that it is quite unnecessary for the proper disposition of this case. For I conclude that each interest claimed by CSC and Mary Sue Hubbard falls short of the requirement that it be a direct, substantial, legally protectible interest that may be impaired by the disposition of the suit. Accordingly, I concur in the denial of intervention.

A. First Amendment Interest
CSC claims that it has a First Amendment speech interest in the subject matter of the litigation. This interest comprises speaking out against Flynn and others, filing bar complaints, or pursuing litigation, all acts upon which plaintiff predicates Hubbard's liability. CSC argues that its ability to protect that speech interest would be impaired or impeded if it did not intervene, because CSC would be "chilled" from continuing to engage in this presumptively protected activity once a default judgment issued against Flynn. This chill would occur, CSC asserts, because it would not continue to speak while parties obtained default judgments against Hubbard based on CSC's speech.

CSC has asserted a protectible interest, in that it identifies its First Amendment right of expression. CSC failed to show, however, that this interest would be impaired if CSC were not permitted to intervene. It may be that in some cases a nonparty could successfully show that its exercise of its speech right would be chilled by a default judgment against the named party in a litigation. The nonparty would refrain from continuing to engage in certain speech activities, if its speech were the basis for the named party's liability. The nonparty would have to convince the court that its ability to protect its speech right would be impaired or impeded by the default judgment.

In this case, no such showing was made. In its appellate brief, CSC stated "[i]t would be impossible for the Church to sit back and watch unscrupulous plaintiffs or lawyers take advantage of Mr. Hubbard's *1093 unavailability to obtain huge default judgments based upon the purported acts of the Church, and the unsupported allegations of a complaint." CSC did not make this argument to the district court in its written motion to intervene, but rather it did so orally in a one-sentence statement during the hearing. Moreover, CSC did not present any evidence as to why it would refrain from future speech activity if this default judgment issued against Hubbard.

Instead, CSC came forth with a purely conclusory statement. It offered no affidavits to support its claim and no evidence at all that a default judgment against Hubbard would have any effect upon CSC. Such conclusory allegations do not entitle CSC to intervention as of right under Rule 24. To find otherwise would suggest that all nonparties could intervene merely by claiming that their special relationship with the named party would chill their speech activities. Obviously, a court is entitled to a sufficiently strong factual showing so that it is assured that the intervenor's speech would indeed be chilled.

B. Reputation Interests
CSC claims that it has a reputation interest in the litigation, because the allegations of the plaintiff "clearly, directly, and substantially" affect the reputation of the church. Moreover, CSC claims that it will suffer direct and serious injury because its founder is accused of serious wrongdoing.

A default judgment against Hubbard is not an adjudication against CSC; such a judgment does not mean that CSC took the actions that were alleged in plaintiff's complaint. Additionally, a party's reputation interest has not been found sufficient to require intervention as of right. In Edmondson v. Nebraska, 383 F.2d 123, (8th Cir.1967), the state sued a prisoner who had recovered a default judgment against a prison guard. The state claimed that the default judgment was the result of fraud and collusion between the prisoner and guard and thus the state sought a declaration that the judgment was void. The guard sought to intervene under Rule 24, claiming that the state's allegations of fraud adversely affected his reputation. The court stated that the suit against the prisoner would not affect the guard's legal interest. It added:

"The mere fact that [the guard's] reputation is thereby injured is not enough. [The guard's] representative has pointed to no legal detriment flowing from this possible finding [of fraud] by the trial court, and we can find none." Id. at 127.

In this case as well, CSC merely claims a generalized injury to reputation, but identifies no legal detriment arising from a default judgment against Hubbard. Mary Sue Hubbard also argues that her reputation interest is at stake because the complaint names and implicates her as a key individual in the actions against the plaintiff. Her claim fails for the same reason.

C. Economic Interests
CSC asserts that its economic interests are threatened because the plaintiff will seek to enforce its judgment against Hubbard by levying on the assets of the church. CSC also seems to be arguing that it has an interest in preventing the plaintiff from obtaining a judgment in this case because plaintiff will use offensive collateral estoppel in future actions against the church.

If intervention were denied, however, CSC would not be a party to this case. Any action brought by the plaintiff to obtain assets belonging to the church would necessarily provide the church with an opportunity to present its own defense. Moreover, CSC will not be precluded by the default judgment from making any arguments in future cases. None of the allegations proved against Hubbard would be deemed proved against CSC.

Mary Sue Hubbard also claims that she has an interest in maintaining her husband's assets, which provide support for her and will accrue to her upon his death. She claims that this interest is identical to that which was found sufficient in SEC v. Flight Transportation Corp., 699 F.2d 943 (8th Cir.1983). In that case, a wife undergoing divorce proceedings was permitted to intervene in the SEC's fraud action against the husband. The SEC action would determine *1094 what property belonged to the husband's corporation, as opposed to the husband himself. Additionally, the SEC sought a stay on all other proceedings against the husband, including the divorce action, and a court-appointed receiver to take control of the husband's assets. The court found that this action would have directly affected what assets would be available for distribution to his wife in the ongoing divorce proceedings.

Mary Sue Hubbard's monetary interests in her husband's assets are neither identical, nor similar, to the interests of the wife in SEC. Here, her husband's assets are not the subject of this suit, the court is not attempting to take control of the assets, and she has no ongoing claim against the assets of her husband. If intervention were permitted here, whenever one spouse was displeased with the litigation strategy, the investment decisions, or the charitable donations of his or her spouse, the displeased spouse would be permitted to intervene as of right.

A review of the interests assertedly at stake in the underlying litigation reveal that the district court correctly decided that CSC and Mary Sue Hubbard are not entitled to intervene as of right pursuant to Rule 24(a)(2).

III
Appellants are asserting, then, either their interests as joint tortfeasors or the interests of Hubbard. Both interests fail to satisfy the requirements of Rule 24. This result explains my brothers' concern that what appellants truly seek is not to intervene but to be substituted for the named defendant in order to protect his interests. I agree. I arrive at that conclusion only after a review of the appellants' interests showed that they failed to satisfy the rule's interest and impairment requirements. Thus, the result we reach, denying intervention, would be no different if Hubbard did appear but inadequately represented the appellants. Whether appellants attempt to substitute for an existing party or impose themselves in the litigation as a second or third named party, Rule 24 still forbids their intervention.

Although the court correctly, in my view, recognizes that intervention should not be granted, I do not accept its basis, i.e., the fact that the named defendant will not appear precludes a nonparty's right to intervene. To the contrary, that fact itself satisfies the rule's third requirement. Intervention is inappropriate because of appellants' failure to show that they have protectible interests that will be impaired by this litigation. Had appellants made such a showing, I would find that they have a right to intervene, even if the named defendant, for whatever reason, chose not to present a defense.

title: Flynn v. Hubbard/Opinion of the Court


text: Page:Shakespeare - First Folio Faithfully Reproduced, Methuen, 1910.djvu/624


text: Author:John Murray (1841-1914)

title: Author:John Murray (1841-1914)