APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. D.C. MDL Docket No. 109, Misc. No. 5670.
Adams, Rosenn and Hunter, Circuit Judges.
The promotional activities of Glenn Turner have spawned lawsuits with nearly the same abandon with which he sold distributorships and franchises in his various enterprises. An emerging collision between two of these lawsuits forms the basis of this appeal.
This action originated with the filing in the Western District of Pennsylvania of a class action by purchasers of distributorships and franchises in Glenn Turner's enterprises. Between September 1971 and April 1972, some twenty federal class actions against Turner's alleged "pyramid" sales practices had been filed under the federal securities acts and pendent state law. The Judicial Panel on Multidistrict Litigation, after argument, transferred all of the class actions to the Western District of Pennsylvania for consolidated pretrial procedures.
On January 15, 1973, the district court, after making the requisite findings, certified the proceedings as class actions under Federal Rule of Civil Procedure 23(b)(3). The court restrained all class members and parties acting through or on their behalf from instituting or continuing any actions in any state or federal court based on the activities of Turner which had given rise to the federal class actions unless the parties filed a notice of exclusion from the litigation.
Antedating the class determination order were actions by the attorneys general of 41 states against various of the defendants in the multidistrict litigation. One such action was brought by the Kentucky Attorney General under the Kentucky Consumer Protection Act. The Kentucky circuit court enjoined Glenn Turner and his enterprises from engaging in their promotional activities and awarded a judgment of nearly $500,000 to be paid to the Attorney General for distribution to Kentucky residents who had invested in Turner's ventures after June 16, 1972, the effective date of the Kentucky Act. The Attorney General then filed on January 18, 1973, an action to collect the judgment in the Circuit Court of Orange County, Florida.
At a pretrial conference on January 23, 1973, the United States district court permitted the 41 state attorneys general to intervene in the consolidated class actions. The court clarified its January 15 order, holding that actions by the attorneys general would be restrained only if they sought restitution from the defendants on behalf of any class members. A motion by the attorneys general to vacate the January 15 order was denied by the court on June 29, 1973.
On May 31, 1974, the Kentucky Court of Appeals affirmed the judgment of the Kentucky circuit court. Dare To Be Great, Inc. v. Kentucky ex rel. Hancock, 511 S.W.2d 224 (Ky. 1974). On July 16, 1974, the Kentucky Attorney General moved to amend the previous order of the United States district court as it applied to him on the grounds that the Kentucky judgment was final, and that the federal class action had lost its viability after the Supreme Court's decision in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974), requiring that the representative plaintiffs pay the costs of notice in class actions under Rule 23(b)(3). On August 27, 1974, the district court ordered that the restraints upon individual actions would be removed unless the representative plaintiffs provided the court with sufficient funds to pay the cost of notice by September 25, 1974. After extending the date for supplying funds, the court on October 8, 1974, acknowledged receipt of a proposed stipulation of settlement and maintained the restraint on individual actions. The Attorney General appeals the continuance. Subsequent to the appeal, the proposed settlement arrangement has broken down. We reverse the order of the district court.
Much of the controversy in this case centers upon the nature of the district court's order. The restraint on prosecution of other actions is not absolute; a party need only exclude himself from the class actions to be free of the restraint. Exclusion from a class action normally entails no procedural or substantive hardship for the class member. The order of the district court as applied to class members, therefore, may be viewed not as an injunction restraining class members from prosecution of other actions, but as a directive facilitating the orderly and efficient management of the class actions. We do not decide this question for we believe the order as applied to the Kentucky Attorney General effectively enjoins his execution upon the state court judgment.
The Kentucky Attorney General maintains that the Kentucky Consumer Protection Act*fn1 does not authorize him to represent in the federal consolidated class actions those Kentucky citizens defrauded by Turner's activities. We are without legislative or judicial guidance on the extent to which the Attorney General represents Kentucky citizens under the Act. Absent such guidance, we believe the interpretation of the Attorney General is proper. The silence of the Legislature belies an intent to take the unusual step of having the Attorney General represent Kentucky citizens in all suits, state or federal, emanating from those activities declared unlawful under the Act. Moreover, the position of the Attorney General, who is charged with enforcing the governing statute, is entitled to some weight. Cf., e.g., Saxbe v. Bustos, 419 U.S. 65, 74, 42 L. Ed. 2d 231, 95 S. Ct. 272 (1974). Deference to the Attorney General's interpretation of the Act is particularly appropriate here because the interpretation is adverse to his best interests in this litigation. If the Attorney General did represent the Kentucky federal class members, he easily could exclude them from the class actions, thereby freeing himself from the restraints of the district court order.
Since the Attorney General cannot exclude Kentucky citizens from the federal class action, the January 15 order effectively prohibits him from executing upon his state court judgment. We have jurisdiction over the appeal of such an injunctive order under 28 U.S.C.§ 1292(a)(1). See Jennings v. Boenning & Co., 482 F.2d 1128 (3d Cir.), cert denied, 414 U.S. 1025, 38 L. Ed. 2d 316, 94 S. Ct. 450 (1973) (by implication); Klein v. Adams & Peck, 436 F.2d 337 (2d Cir. 1971); 9 J. Moore, Federal Practice para. 110.20, at 235. ...