In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1883

FLYING J, INC.,

Plaintiff-Appellee,

v.

J.B. VAN HOLLEN, Attorney General of Wisconsin, et al.,

Defendants.

WISCONSIN PETROLEUM MARKETERS

& CONVENIENCE STORE ASSOCIATION,

Proposed Intervenor-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 08-C-110—Rudolph T. Randa, Chief Judge.

ARGUED JUNE 2, 2009—DECIDED AUGUST 20, 2009

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

POSNER, Circuit Judge. The Wisconsin Uniform Sales

Act, Wis. Stat. § 100.30, forbids retail sellers of gasoline

to sell their product below cost plus a markup equal to

the higher of 6 percent of the retailer’s cost or 9.18 percent
2 No. 09-1883

of the wholesale price of the product. The Act authorizes

injunctive and monetary remedies both in suits by the

state, and in private suits by persons injured by a violation of the Act. Id., §§ 100.30(4), (5), (5m). Flying J, which

sells gasoline at truck stops, brought this suit in

federal court against the state to enjoin the enforcement

of the Act, on the ground that it is preempted by the

Sherman Act. The district court agreed that it

was preempted and issued the injunction—whereupon

the state threw in the towel and decided not to appeal.

Before the 30-day limit for filing a notice of appeal had

expired, an association of Wisconsin gasoline dealers

moved for leave to intervene in the district court both as

a matter of right under Rule 24(a)(2) of the Federal Rules

of Civil Procedure and alternatively as a permissive

intervenor under Rule 24(b)(1)(B). It wanted to intervene

in order to be able both to ask the district judge to reconsider his decision and, if he refused to change it, to

appeal. The district judge extended the time for filing

the notice of appeal in order to give himself time to consider the motion. Before the extended deadline for filing

an appeal expired, he denied the motion to intervene.

The appeal asks us to reverse that denial and either

request the parties to submit briefs on the merits of the

district court’s decision, or remand the case with directions that the district judge reconsider his decision in

light of the arguments made in the association’s motion

to reconsider.

The judge denied intervention as of right on the ground

that the association (which is to say its members, since the
No. 09-1883 3

association’s standing to litigate the case is derivative

from their standing) lacks the required interest in the

litigation to authorize such intervention, and alternatively

that the motion to intervene was not timely, as the rule

requires though without specifying a time limit. The judge

denied the request for permissive intervention on the

ground that it was untimely also.

No one can maintain an action in a federal court, including an appeal, unless he has standing to sue, in the

sense required by Article III of the Constitution—that is,

unless he can show injury (in a special sense, noted

below) and that he would benefit from a decision in his

favor. But the interest required by Article III is not

enough by itself to allow a person to intervene in a

federal suit and thus become a party to it. There must be

more. Rule 24(a)(2) requires that the applicant claim “an

interest relating to the property or transaction that is

the subject of the action.” “Interest” is not defined, but

the case law makes clear that more than the minimum

Article III interest is required. Cases say for example that

a mere “economic interest” is not enough. E.g., In re Lease

Oil Antitrust Litigation, 2009 WL 1479410, at *5-6 (5th Cir.

May 28, 2009); Mountain Top Condominium Ass’n v. Dave

Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995);

cf. Reich v. ABC/York-Estes Corp., 64 F.3d 316, 322-23 (7th

Cir. 1995). While that is a confusing formulation—most

civil litigation is based on nothing more than an “economic

interest”—all that the cases mean is that the fact that

you might anticipate a benefit from a judgment in favor

of one of the parties to a lawsuit—maybe you’re a creditor

of one of them—does not entitle you to intervene in their
4 No. 09-1883

suit. United States v. Alisal Water Corp., 370 F.3d 915, 920-

21 (9th Cir. 2004); Mothersill D.I.S.C. Corp. v. Petroleos

Mexicanos, S.A., 831 F.2d 59, 62-63 (5th Cir. 1987); see

Medical Liability Mutual Ins. Co. v. Alan Curtis LLC, 485

F.3d 1006, 1008-09 (8th Cir. 2007).

The reason is practical, and also obvious: the effects of

a judgment in or a settlement of a lawsuit can ramify

throughout the economy, inflicting hurt difficult to

prove on countless strangers to the litigation. Remoteness

of injury is a standard ground for denying a person the

rights of a party to a lawsuit. It is one of the “prudential”

(as distinct from constitutional) limitations on standing

to sue, e.g., Blue Shield of Virginia v. McCready, 457 U.S.

465, 476-78 (1982); MainStreet Organization of Realtors v.

Calumet City, 505 F.3d 742, 744-47 (7th Cir. 2007), whereas

“a modest probability of injury is enough for standing” in

the Article III sense. Wiesmueller v. Kosobucki, No. 08-2527,

2009 WL 1956335, at *3 (7th Cir. July 9, 2009); see Northeastern Florida Chapter of Associated General Contractors v.

City of Jacksonville, 508 U.S. 656, 664-66 (1993); Pennell v.

City of San Jose, 485 U.S. 1, 6-8 (1988).

Another dimension of the “interest” required for intervention as a matter of right, also borrowed from (though

not necessarily identical to) the prudential as distinct

from the Article III concept of standing, is that the suitor

be someone whom the law on which his claim is

founded was intended to protect. New York Public

Interest Research Group, Inc. v. Regents of University, 516

F.2d 350, 352 (2d Cir. 1975) (per curiam); see Allen v.

Wright, 468 U.S. 737, 750-51 (1984). That’s not a problem
No. 09-1883 5

in this case. Wisconsin’s “Unfair Sales Act” is specialinterest legislation and the special interest is that

of retailers who wish, naturally enough, to limit price

competition. They are the statute’s direct beneficiaries, as

shown by the fact that the statute authorizes them to sue

to enforce it against price cutters if they can prove injury. Invalidation of the statute would deprive them of the

benefit not only of that remedy but also of the principal

remedy provided by the statute—public enforcement by

a variety of means none requiring proof of injury. The

state may sue for civil penalties, Wis. Stat. § 100.30(4),

impose cease and desist orders the violation of which

incurs a civil penalty, § 100.30(5)(a), and sue to enjoin

violations without having to show that its remedy at law

is inadequate. § 100.30(5)(b). None of these remedies

is available to a private person.

The interest of the private persons intended to be benefited by the Unfair Sales Act in the preservation of this

remedial scheme is therefore sufficient to warrant intervention under Rule 24(a)(2), provided that the retailers

would be directly rather than remotely harmed by the

invalidation of the statute. They would be; they would

lose much or even all of their business to their larger,

more efficient competitors.

Nor do we think the association’s motion to intervene,

even though not filed until the district judge had entered

his final judgment, was untimely—assuming that all the

association wants is to take an appeal (a question we

discuss below, and answer in the affirmative). If it wants

to present evidence, then its motion was indeed untimely.
6 No. 09-1883

It was content for the state attorney general to defend

the statute until he decided not to appeal. Its champion,

the attorney general, having lost the case, it cannot be

allowed to subject the winning party to another trial.

United States v. American Tel. & Tel. Co., 642 F.2d 1285, 1294-

95 (D.C. Cir. 1980); Smuck v. Hobson, 408 F.2d 175, 181-82

(D.C. Cir. 1969) (en banc); see David L. Shapiro, “Some

Thoughts on Intervention Before Courts, Agencies, and

Arbitrators,” 81 Harv. L. Rev. 721, 752-56 (1968).

Had the association sought to intervene earlier, its

motion would doubtless (and properly) have been

denied on the ground that the state’s attorney general

was defending the statute and that adding another defendant would simply complicate the litigation. For there

was nothing to indicate that the attorney general was

planning to throw the case—until he did so by failing

to appeal. At that point the objection to intervention,

as long as taking new evidence was not contemplated,

evaporated.

Another requirement for intervention as a matter of

right under Rule 24(a)(2)—that “the applicant is so

situated that the disposition of the action may as a

practical matter impair or impede the applicant’s ability

to protect that interest”—presents a greater obstacle to

the association’s intervening as a matter of right because

there is nothing to prevent a member who is injured

by pricing in violation of the Unfair Sales Act to sue the

violator. There would be no defense of res judicata,

because neither the association nor any of its members is

(as yet) a party to the present suit. It is true that concern
No. 09-1883 7

with the stare decisis effect of a decision can be a ground

for intervention, New York Public Interest Research Group,

Inc. v. Regents of University, supra, 516 F.2d at 352; Atlantis

Development Corp. v. United States, 379 F.2d 818, 826,

828 (5th Cir. 1967), because courts are reluctant to

overrule a precedent. But the decision of a district court

has no authority as precedent. Matheny v. United States,

469 F.3d 1093, 1097 (7th Cir. 2006). And unless intervention is permitted, there is no way in which the district

court’s decision in this case could be appealed and thus,

if affirmed, give rise to a precedent that would impede

the association’s ability to overturn the invalidation of

the Unfair Sales Act in another suit.

Still, to make the association start over, when all it

really seeks by way of intervention (as we explain below)

is an opportunity to litigate an appeal, would impose

substantial inconvenience on the association with no

offsetting gain that we can see. That inconvenience is

an “impediment” that can be removed, without prejudice

to its opponent, by allowing intervention. See Natural

Resources Defense Council v. Costle, 561 F.2d 904, 910-11

(D.C. Cir. 1977).

Furthermore, even if the “impediment” were considered insufficient to justify intervention as a matter of

right, there is the association’s argument for permissive

intervention to consider. Neither the “impair or impede”

requirement nor the “interest” requirement is repeated

in the subpart of Rule 24 that governs permissive intervention. All that is required by Rule 24(b)(1)(B), so far as

relates to this case, is that the applicant’s claim or defense
8 No. 09-1883

and the main action have a question of law or fact

in common. That requirement is satisfied because the

association wants to present the same defense that the

defendants presented. Like anyone who wants to

maintain an action in federal court, the association has

to have standing in the Article III sense—but it does.

The motion to intervene has to be timely, but at argument we extracted from the association a reluctant acknowledgment that all it really wants is a ruling by us

(for there is no point in its seeking reconsideration by

the district court on the identical record) that the Unfair

Sales Act is not preempted. The association does not

want to present evidence—if it did, its Rule 24(b) claim

would be untimely for the same reason that, on the

same assumption, its Rule 24(a) claim would be.

With evidence not an issue, the only ground that the

district judge gave for denying intervention was that

intervention “would result in an appeal that is otherwise not forthcoming.” That is not an adequate ground,

when the only reason there would be no appeal is that

the losing party had abandoned the case. To allow the

substitution of a party that has a legally protectable

interest in the statute enjoined by the district court is as

proper as permitting an unnamed class member in a

class action suit to intervene when the class representative

drops out. United Airlines, Inc. v. McDonald, 432 US

385, 394-96 (1977); Rogers v. Paul, 382 U.S. 198, 199 (1965)

(per curiam); Roe v. Town of Highland, 909 F.2d 1097, 1099-

1100 (7th Cir. 1990); see Wiesmueller v. Kosobucki, 513 F.3d

784, 786 (7th Cir. 2008). There is no prejudice to Flying J,
No. 09-1883 9

because it could not have assumed that, if it won in

the district court, there would be no appeal. United

States v. American Tel. & Tel. Co., supra, 642 F.2d at 1294-95;

Meek v. Metropolitan Dade County, 985 F.2d 1471, 1478-

80 (11th Cir. 1993) (per curiam), overruled on other

grounds by Dillard v. Chilton County Commission, 495

F.3d 1324 (11th Cir. 2007). It’s not as if it had incurred

litigation costs in a reasonable expectation that they

would not be magnified by an appeal. It must have been

as surprised as the association was when the attorney general decided not to appeal a decision holding a

Wisconsin statute unconstitutional. There was, in short,

no reliance by Flying J on the attorney general’s abandoning the case.

Although it might seem to follow from our analysis

that we should remand the case with directions that

the district court grant the motion to intervene and

extend the time for filing a notice of appeal from the

judgment on the merits for 30 days from the date of the

motion, there is no point in doing that, since the association’s only valid goal in intervening was to litigate

the case on appeal. And so to save time we shall, like

the Eleventh Circuit in the Meek case, treat the intervenor as the appellant from the judgment on the merits

and direct briefing to proceed in the usual manner,

except that the appeal will be decided by this panel.

985 F.2d at 1480 n. 3; see also Edwards v. City of Houston, 37

F.3d 1097, 1108, 1116 (5th Cir. 1994). (Indeed, we cannot

understand why the parties did not brief the merits.)

The parties will want to pay particular attention to the
10 No. 09-1883

bearing on the district court’s decision of Exxon Corp. v.

Governor of Maryland, 437 U.S. 117 (1978).

VACATED.

8-20-09