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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Neese v. State (07/10/2009) sp-6388

Neese v. State (07/10/2009) sp-6388

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

JACKIE L. NEESE, individually and )
on behalf of all others similarly )
situated, )
) Supreme Court No. S- 12624
Appellants, )
) Superior Court No.
v. ) 3AN-06-13341 CI
)
STATE OF ALASKA, and )
LITHIA CHRYSLER JEEP OF )
ANCHORAGE, INC., LITHIA OF )
ANCHORAGE, INC. d/b/a LITHIA )
DODGE OF SOUTH ANCHORAGE, )
LITHIA OF SOUTHCENTRAL )
ALASKA, INC. d/b/a CHEVROLET )
OF WASILLA, LITHIA IMPORTS OF)
ANCHORAGE, INC. d/b/a LITHIA )
HYUNDAI OF ANCHORAGE, ) O P I N I O N
)
Appellees. ) No. 6388 - July 10, 2009
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Jack W. Smith, Judge.

          Appearances: Trena L. Heikes, Law  Office  of
          Trena  L. Heikes, and Chris Bataille, Walther
          & Flanigan, Anchorage, for Appellants.  Clyde
          E.  Sniffen,  Jr., Senior Assistant  Attorney
          General,  Anchorage  and  Talis  J.  Colberg,
          Attorney General, Juneau, for Appellee  State
          of   Alaska,  Howard  S.  Trickey,  Gary   C.
          Sleeper, and Matthew Singer, Jermain Dunnagan
          &   Owens,   P.C.,  Anchorage,   for   Lithia
          Appellees.

          Before:   Matthews, Eastaugh, Carpeneti,  and
          Winfree, Justices. [Fabe, Chief Justice,  not
          participating.]

          CARPENETI, Justice.

I.   INTRODUCTION
          After   an  investigation  into  violations  of   state
consumer  protection  laws,  the state  entered  into  a  consent
judgment  with a large car sales company.  A group  of  consumers
who  had purchased vehicles at the companys dealerships moved  to
intervene  in  the consent judgment proceeding, but the  superior
court  denied  intervention.  The consumers appeal, arguing  that
the  superior court erred by denying intervention as of right and
abused   its   discretion  by  denying  permissive  intervention.
Because   the  consumers  have  not  met  the  requirements   for
intervention  as of right or permissive intervention,  we  affirm
the decision of the superior court.
II.  FACTS AND PROCEEDINGS
          This   case  involves  the  settlement  of  a  consumer
protection investigation by the state attorney general concerning
violations  of  the  Alaska Unfair Trade Practices  and  Consumer
Protection  Act  by  several of the Lithia  auto  dealerships  in
Alaska.              The  states inquiry into  Lithias  practices
began  in July 2001 when Assistant Attorney General Clyde Sniffen
sent  a letter to the general manager of Lithia Chrysler Jeep  of
Anchorage.  In this letter, Sniffen stated, [w]e have . . . taken
the  position that document preparation fees may be charged by  a
dealer,  but  these  charges must be included in  the  advertised
price  for the vehicle.  The only fees that can be excluded  from
the advertised price are licensing and registration fees actually
paid  to  a  state agency.  The attorney general did  not  pursue
enforcement action after this letter was sent.
          Four  years  later, in the course of an individual  car
purchasers private action against Lithia for failure to  disclose
required  information,  counsel  for  the  purchaser    who  also
represent  the  appellant  used  car  purchasers  in  this   case
(consumers)    discovered  numerous  consumer  complaints   filed
against  Lithia with the Better Business Bureau.  In  July  2005,
while   the  individual  case  was  pending,  consumers   counsel
contacted  Sniffen and advised him of evidence  that  Lithia  had
failed  to inform a purchaser, as it was required to do  by  law,
that  the vehicle she was purchasing had previously been  wrecked
and  repaired.  In September 2005 consumers counsel forwarded  to
Sniffen other consumer complaints against Lithia.  The complaints
attacked   Lithias  failure  to  disclose  information  regarding
vehicles sold to consumers in violation of AS 45.25.465  and  its
practice of charging consumers a $200 document preparation fee in
violation  of  AS 45.25.440 and AS 45.25.460.  In  December  2005
consumers  counsel met with Sniffen and revealed their intent  to
file  class  action suits against Lithia on behalf  of  consumers
injured by Lithias illegal practices.
          In  January 2006 the consumers filed their class action
complaint against Lithia alleging violations of the used  vehicle
disclosure  provisions  of AS 45.25.465 and  AS  45.25.470.   The
complaint  named eight individual plaintiffs who would  serve  as
class  representatives for all consumers who had  purchased  used
vehicles  from  various Alaska Lithia dealerships since  July  1,
2002.
          While  the consumers were preparing their class action,
the  attorney  general  was  investigating  Lithias  charging  of
document   preparation  fees  and  Lithias  failure  to   provide
statutorily  required disclosures to vehicle  purchasers.   After
receiving numerous complaints about Lithias actions, the attorney
general  served  Lithia  with a subpoena  requesting  information
relating to used vehicle sales at the three largest Alaska Lithia
dealers.   Lithia  responded by submitting  numerous  deal  files
containing purchase and sale documents for used vehicle sales.
          As  a result of its investigation and review of Lithias
deal files, the attorney general entered into a consent agreement
with  Lithia on December 1, 2006. Pursuant to the agreement,  the
state  filed  a  complaint against Lithia in the  superior  court
seeking  injunctive relief, civil penalties, and restitution  and
filed the consent judgment the same day.
            The consent judgment was intended to resolve all  the
states  claims asserted in the complaint, and provide restitution
and other relief to consumers who suffered damage as a result  of
Lithias  conduct.  It includes injunctive relief  mandating  that
Lithia  not sell a used vehicle unless Lithia complies  with  the
disclosure  requirements of AS 45.25.465, and not  sell  a  motor
vehicle in violation of AS 45.25.440.  The consent judgment  also
requires  that Lithia not charge an administration fee,  document
preparation  fee,  or  any other dealer fee  unless  the  fee  is
included  in  the advertised price of the vehicle.  In  addition,
the  consent  judgment assesses a $500,000 civil penalty  against
Lithia.   It  also  requires  Lithia to  provide  restitution  to
customers  by  refunding dealer fees charged in addition  to  the
advertised price of vehicles sold.  In addition to the refund  of
dealer  fees,  the  consent  judgment mandates  that  Lithia  pay
restitution to customers who can establish they have suffered  an
ascertainable  loss of money or property as a result  of  Lithias
failure  to  comply  with  the  disclosure  requirements  of   AS
45.25.465 and AS 45.25.470.
          Five  days  after the state filed the consent judgment,
the  consumers filed their second class action lawsuit  based  on
various  Lithia dealerships practice of charging dealer fees  not
included  in the advertised price of the vehicle in violation  of
AS 45.25.440.1  On the same day, the consumers moved to intervene
in the consent judgment proceeding.
          The  superior  court denied the motion to intervene  in
February  2007.   In its order, however, the court  required  the
state  and  Lithia  to  create a modified consent  judgment  that
included notice to Lithia customers and a right to opt out of the
settlement.  The court emphasized that customers who opt  out  of
the  consent judgment could pursue separate recovery and that the
proposed  intervenors could file an amicus brief  to  assist  the
          court in reviewing the consent judgment.
          The  consumers  appealed  the superior  court  decision
denying  their motion to intervene.  Nonetheless, they  continued
to  participate  in the superior court proceeding  by  filing  an
amicus brief regarding the merits of the consent judgment.  After
the  state  added  the required opt out provision,  the  superior
court approved the modified consent judgment in April 2007.
          In  May 2007 the consumers sent Lithia notice that they
wished  to  opt  out of the consent judgment.   Nonetheless,  the
consumers  continued to participate in the trial court proceeding
by  filing  a  motion  to  stay the enforcement  of  the  consent
judgment  pending our decision in this appeal.  In the  meantime,
however,  Lithia  and  the state began the process  of  notifying
consumers  of the settlement terms and opportunity  to  opt  out.
They  sent  a  notice  of  settlement to all  consumers  who  had
purchased  a  vehicle  from  an Alaska  Lithia  dealership  since
October 1, 2002.
          The  superior court denied the consumers motion  for  a
stay.   The  consumers then filed a motion for a stay  with  this
court.   We  granted the motion and stayed the consent decree  of
the superior court pending resolution of this appeal.

III. STANDARD OF REVIEW
          We review the denial of a timely motion to intervene as
of  right using our  independent judgment.2  We review the denial
of  a  motion  for  permissive intervention using  the  abuse  of
discretion standard.3
IV.  DISCUSSION
          On  appeal  the  consumers  argue  that  they  have  an
absolute  right to intervene and alternatively that  they  should
have  been permitted to intervene.  The state responds  that  the
consumers  cannot meet the test for intervention as of right  nor
the requirements for permissive intervention.  Lithia agrees with
the  state  that  the  consumers  should  not  be  permitted   to
intervene.
     A.   The   Superior  Court  Correctly  Concluded  that   the
          Consumers  Did  Not Meet the Alaska  Civil  Rule  24(a)
          Standard for Intervention as of Right.
          
          Alaska  Civil  Rule  24(a) governs intervention  as  of
right.  It provides:
          Upon  timely  application  anyone  shall   be
          permitted to intervene in an action when  the
          applicant claims an interest relating to  the
          property or transaction which is the  subject
          of   the  action  and  the  applicant  is  so
          situated  that the disposition of the  action
          may  as  a practical matter impair or  impede
          the   applicants  ability  to  protect   that
          interest,  unless the applicants interest  is
          adequately represented by existing parties.
          
We  will liberally construe this rule.4  As we have stated, Civil
Rule 24(a) contains a four-part test for intervention:
          (1)  the  motion  must  be  timely;  (2)  the
          applicant  must  show  an  interest  in   the
          subject   matter  of  the  action;  (3)   the
          applicant must show that this interest may be
          impaired as a consequence of the action;  and
          (4) the applicant must show that the interest
          is  not adequately represented by an existing
          party.[5]
          
          Although the consumers meet the first element  of  this
test,  they  fail to establish that they satisfy the  second  and
third elements.
          1.   The motion to intervene was timely.
          We will not hold that a motion to intervene is untimely
if  no party raises timeliness as an issue.6  Neither Lithia  nor
the state argue that the motion to intervene was untimely.  Thus,
we accept the motion as timely.
          2.   The  consumers do not possess a valid interest  in
               the property or transaction that is the subject of
               the action.
               
          The  consumers argue that their interest is  sufficient
to  justify intervention as a matter of right.  They provide  six
reasons  to  support their position that they  have  an  adequate
interest:   (1)   they  were  involved  in  the   motor   vehicle
transactions  at the root of the lawsuit; (2) they are  the  ones
who  have  sustained a financial loss; (3) they are the  intended
beneficiaries  of  the  motor  vehicle  and  consumer  protection
statutes;  (4)  they  are  litigants in a  pending  class  action
lawsuit  concerning the same violations at issue in  the  consent
judgment; (5) the consent judgment does not include the  consumer
remedies  and  protections that they are  seeking  in  the  class
action;  and  (6) their due process rights were violated  because
the  states opt out notice did not provide sufficient information
for a reasoned decision whether to opt out.
          The  state  and Lithia both respond that the  consumers
cannot  demonstrate an interest in the consent  judgment  because
they  have  opted out of the action in order to pursue their  own
class action lawsuit.  The consumers reply that they had standing
to  intervene when they moved to intervene because they  had  not
successfully  opted out, and, regardless, the opt  out  provision
did  not  impair  their standing to intervene because  the  state
lacked the authority to resolve their claims.  The consumers also
assert in their reply that they are entitled to intervene because
the  consent  judgment is prejudicial to their  rights  in  their
separate  class  action, as it has res judicata  effects  on  the
class action.
          In  order  to  satisfy  the  interest  element  of  the
intervention  standard, the consumers interest in  the  State  v.
Lithia  action  must  be direct, substantial,  and  significantly
protectable. 7   Not everyone affected by a lawsuit  is  entitled
to  intervene.   As  we  stated in Anchorage  Baptist  Temple  v.
Coonrod, [t]hose affected, even negatively, by a lawsuit  may  be
significantly  more  numerous than  those  who  are  entitled  to
          intervene, and an indirect financial interest, standing alone, is
insufficient  to secure intervenor status.8  In  Alaskans  for  a
Common Language, Inc. v. Kritz,9 we emphasized that there  is  an
enhanced  intervention standard in cases involving a  governments
sovereign  power:  Generally when the  government  exercises  its
sovereign power to enforce and defend duly enacted laws, no other
entity  can  have  an interest sufficient to satisfy  Civil  Rule
24(a).10
          Although  the consumers have claims identical to  those
settled  by  the consent decree, they could not possess  adequate
interests  to  satisfy this requirement if the  attorney  general
exercise[d]  its  sovereign  power to  enforce  and  defend  duly
enacted  [consumer  protection]  laws  in  investigating  Lithias
violations  and  reaching a settlement agreement  with  Lithia.11
When  the  government exercises such powers, no other entity  can
have an interest sufficient to satisfy Civil Rule 24(a).12
          Here,   the  attorney  general  exercised  the   states
sovereign  power  under the Unfair Trade Practices  and  Consumer
Protection Act.  Alaska Statute 45.50.501 provides:
          (a)  When the attorney general has reason  to
          believe that a person has used, is using,  or
          is  about  to use an act or practice declared
          unlawful   in   AS   45.50.471,   and    that
          proceedings would be in the public  interest,
          the  attorney general may bring an action  in
          the  name of the state against the person  to
          restrain by injunction the use of the act  or
          practice . . . .
          (b)  The court may make additional orders  or
          judgments  that are necessary to  restore  to
          any person in interest any money or property,
          real   or  personal,  which  may  have   been
          acquired  by  means  of an  act  or  practice
          declared to be unlawful by AS 45.50.471.
          
The  attorney generals authority to bring an action  to  restrain
Lithias use of unlawful practices, along with the superior courts
power  in  such an action to make additional orders or  judgments
to   restore   used  car  purchasers  rights,  extinguished   any
intervention interest the consumers may have held.
          Federal  cases involving attempts to opt out  of  class
actions support the conclusion that the consumers do not have  an
adequate  interest  here.   In  In  re  Lorazepam  &  Clorazepate
Antitrust Litigation,13 the United States District Court for  the
District  of Columbia denied intervention in a private  antitrust
class action settlement partly because the parties who wished  to
intervene could still opt out and preserve their rights to pursue
their  own  claims independently.14  In In re Vitamins  Antitrust
Class  Actions,15  the United States Court  of  Appeals  for  the
District of Columbia affirmed the trial courts denial of a motion
to intervene filed by presumptive class members who had opted out
of   a   class  settlement  concerning  price-fixing  by  vitamin
manufacturers because class members who opted out  of  the  class
settlement  had  no  standing to object to it.16   Similarly,  in
          Mayfield v. Barr,17 the District of Columbia Court of Appeals held
that appellants who chose to opt out of a class action employment
discrimination  case and preserve their right to  litigate  their
claims  independently  lacked  standing  to  challenge  an  order
approving  a class settlement agreement.18  The court  explained,
[o]ur  decision  rests  on the principle  that  those  who  fully
preserve  their legal rights cannot challenge an order  approving
an  agreement resolving the legal rights of others.19  Generally,
federal  courts hold that a party that has opted out of  a  class
settlement may not intervene unless the party suffers some actual
prejudice from the settlement, such as being stripped of a  legal
claim or cause of action.20
          Here,  the  consumers forfeited any potential remaining
interest  in  the  consent judgment when they opted  out  of  the
consent judgment approximately six months after it was filed, and
three  months  after the superior court denied  their  motion  to
intervene.  The  consumers who opted out  fully  preserved  their
statutory right to pursue their separate claims in their  private
class  action suit.  Thus, they may not be parties to the consent
judgment, which only resolves the rights of Lithia customers  who
choose not to opt out.        Although the consumers insist  that
the  consent  judgment could have res judicata effects  on  their
separate class action claims, in actuality it will not have  such
effects.   As we explained in Sengupta v. University of Alaska,21
the  doctrine of res judicata provides that a judgment in a prior
action will bar a subsequent action if the prior judgment was (1)
a  final  judgment on the merits, (2) from a court  of  competent
jurisdiction, (3) in a dispute between the same parties (or their
privies)  about the same cause of action.22  The consent judgment
does  not involve the consumers who have opted out, and  it  does
not  cover their private causes of action against Lithia, so  res
judicata  would not preclude the consumers from litigating  their
claims against Lithia in their separate case.
          In  sum,  because  the attorney general  exercised  the
sovereign  authority to enforce state consumer  protection  laws,
and because the consumers have opted out of the consent judgment,
the consumers lack a valid intervention interest.
          3.   The consumers alleged interest in the property  or
               transaction was not impaired.
               
          The consumers lack of a valid intervention interest  is
a  sufficient basis on which to uphold the superior courts denial
of  intervention  as of right.  Nonetheless, we consider  whether
they have met the third test for intervention  showing that their
interest  was  impaired23  and conclude that they  have  not,  as
further  support for our conclusion that the consumers  have  not
satisfied the requirements for intervention as of right.
          The  consumers make three basic arguments to show  that
their interest has been impaired: (1) the consent judgment waives
the  recovery of certain remedies; (2) the consent judgments  opt
out  provision violates their right to due process; and  (3)  the
consent judgment uses an overly restrictive interpretation of  AS
45.25.440   and   excludes   recovery   for   violation   of   AS
45.25.465(a)(2).   Because  none of  these  arguments  reveal  an
          impairment of interest, the consumers fail to satisfy this
requirement for intervention as of right.
               a.   By  opting out, the consumers maintained  the
                    right to seek their desired remedies.
                    
          The  consumers argue that their interest  was  impaired
because  the  consent judgment waives recovery  of  the  remedies
provided  under AS 45.50.531 and AS 45.50.537.  They provide  the
following  list of the remedies allegedly waived by  the  consent
judgment:  treble damages, common law damages, punitive  damages,
costs   and  attorneys  fees,  judicial  forum,  discovery,   and
prejudgment  interest.   The  state  responds  that  the  consent
judgment  does  not  prevent the consumers  from  pursuing  these
various  remedies because they can simply opt out (as they  have)
to protect their interest.
          Although  the consumers may be correct that  under  the
consent judgment they would not obtain the various remedies  that
they  list,  they can still pursue these remedies  through  their
private class action because they have opted out.  Nothing in the
consent  judgment or opt out notice precludes the consumers  from
seeking  any  desired  remedies in their separate  class  action.
Thus, their argument that their interest is impaired because  the
consent judgment does not include these remedies is unpersuasive.
               b.   The  consent  judgment does not  violate  the
                    consumers right to due process.
                    
          The  consumers argue that the consent judgment violates
their  due  process rights because the opt out  notice  does  not
provide them with sufficient information to decide whether to opt
out.
          Although  we have not previously addressed the adequacy
of an opt out notice in a consent judgment proceeding, we look to
our rules governing class actions to determine the sufficiency of
notice  here.24  Civil Rule 23(c)(2) provides, inter  alia,  that
notice for a class action suit shall advise each member that  (A)
the court will exclude the member from the class if the member so
requests  by  a  specified date; [and] (B) the judgment,  whether
favorable  or  not, will include all members who do  not  request
exclusion . . . .25  Because we apply Civil Rule 23 to procedural
aspects  of representative cases like this one,26 the Civil  Rule
23(c)(2)   notice  standard  applies  here.  Civil  Rule   23(e),
governing  settlement  notices for class  actions,  also  applies
here.   This  rule simply states that the notice of the  proposed
compromise shall be given to all members of this class in such  a
manner as the court directs.  We have held that Civil Rule  23(e)
notices  are sufficient if they inform the class members  of  the
nature   of  the  pending  action,  the  general  terms  of   the
settlement,  that complete and detailed information is  available
from the court files, and that any class member may appear and be
heard at the hearing.27
          The opt out provision reads as follows:
               Right to Opt Out of the Settlement
               All persons who purchased a vehicle from
          any Alaska Lithia dealership since October 1,
               2002,  are subject to the terms of  this
          settlement  and will be bound by  it,  unless
          you  choose  to opt out, as described  below.
          If   you   decide  to  participate   in   the
          settlement,  you will waive any legal  rights
          and  remedies that you may have that are  the
          subject of the Consent Judgment.  If  you  do
          not  wish  to participate in this  settlement
          and  be bound by its terms, you have a  right
          to  opt  out.  If you opt out, there  may  be
          other legal rights and remedies available  to
          you,  so  you  may  wish to consult  with  an
          attorney before deciding whether to opt out.
               If you do not want to participate in the
          settlement and choose to opt out, you may  do
          so  by  sending the enclosed Opt Out Form  to
          the  address provided on the form.  Your  Opt
          Out    Form,    or   a   letter    containing
          substantially the same information,  must  be
          postmarked no later than August 2, 2007.  Opt
          Out Forms that are postmarked after the above
          date  will not be effective.  IF YOU  DO  NOT
          OPT  OUT OF THE SETTLEMENT, THEN YOU WILL  BE
          BOUND BY THE TERMS OF THE CONSENT JUDGMENT[.]
               If  you wish to review the court file in
          State  of Alaska v. Lithia, 3AN-06-13238  CI,
          you  may  do  so  at  the Anchorage  Superior
          Court,  825  West 4th Avenue.  You  can  also
          contact  Assistant Attorney General Clyde  E.
          Sniffen,  Jr. at the Alaska Attorney Generals
          Office,   269-5200  (1-888-576-2526   outside
          Anchorage) with any questions.
          
          This  opt  out  notice  meets the Civil  Rule  23(c)(2)
standard for adequate notice because it notifies each member that
the  court  will exclude the member from the class if the  member
requests  exclusion by a particular date and  that  the  judgment
will  include any member who does not opt out.  The  notice  also
meets  the  requirements of Civil Rule 23(e) because  it  informs
class  members of the nature of the action, the general terms  of
the  settlement,  that  more information is  available  in  court
files,  and  that a class member may appear and be heard  at  the
hearing.  In addition, the notice goes beyond the requirements of
Civil  Rules 23(c)(2) and (e) when it recommends consulting  with
an  attorney  to determine if participation in the settlement  is
the  best  option  because the consumer may be  forfeiting  legal
rights and remedies. Finally, contrary to Neeses argument,  there
is  no  requirement that the notice state whether each individual
consumer qualifies for recovery or that the notice explain  which
rights or remedies the consumer forfeits by participating in  the
settlement.
          Because the consent judgments opt out notice meets  the
requirements  of Civil Rules 23(c)(2) and (e), and even  provided
more information than necessary to comply with Alaska law in this
regard, it did not violate the consumers due process rights.
               c.   The  consent judgments interpretation  of  AS
                    45.25.440 and the absence of a provision  for
                    customers harmed by Lithias violation  of  AS
                    45.25.465(a)(2) do not impair  the  consumers
                    interest.
                    
          The  consumers argue that the consent judgment  impairs
their  interest by construing AS 45.25.440 to allow  recovery  of
dealer  fees  only when consumers paid separate  dealer  fees  in
addition  to the full advertised price of the vehicle,  excluding
consumers who paid dealer fees but also negotiated for a  vehicle
price below the advertised price.  The consumers also argue  that
the  consent judgment impairs their interest because it  excludes
recovery  for  consumers  harmed  by  Lithias  violation  of   AS
45.25.465(a)(2), which requires dealers to disclose to purchasers
that  their  used vehicles had been acquired from  another  motor
vehicle dealer, a wholesaler, or at auction.
          Alaska  Statute 45.25.440(a) provides: When  selling  a
motor vehicle, a motor vehicle dealer may not charge dealer  fees
or  costs,  except for fees actually paid to a state  agency  for
licensing, registration, or title transfers, unless the  fees  or
costs are included in the advertised price.  There is no case law
interpreting   this   provision.   Regardless   of   the   proper
interpretation, however, the consumers have opted  out,  so  they
can   still  argue  in  favor  of  their  interpretation  of   AS
45.25.440(a)  in their private class action.  Thus,  the  consent
judgments  interpretation of the provision does  not  impair  the
consumers interest.
          The  consumers argument that their interest is impaired
because  the  consent  judgment  does  not  include  claims   for
violations  of  AS  45.25.465(a)(2)  which  requires  dealers  to
disclose  to  purchasers  that  their  used  vehicles  had   been
purchased from another motor vehicle dealer, a wholesaler, or  at
auction    is similarly misplaced.  Because the consent  judgment
does  not cover this type of claim, consumers are free to  pursue
such a claim in their private class action.
          In   sum,  the  consumers  have  not  shown  sufficient
impairment of their alleged interests to satisfy this requirement
of the intervention test.
     B.   The  Superior  Court Did Not Abuse  its  Discretion  in
          Denying Permissive Intervention Under Civil Rule 24(b).
          
          The  superior  court  denied  permissive  intervention,
concluding  that  even  though  the proposed  intervenors  assert
issues of law and fact identical to those raised by the state and
Lithia,  allowing  intervention  would  unnecessarily  delay  the
resolution of this action, which will occur upon approval of  the
Consent  Judgment.   The court emphasized that  the  undue  delay
would  negatively affect the Lithia customers represented by  the
state  who  are  not  part of the consumer  class  because  those
customers would be forced to wait even longer for the refunds due
to them.
          The  consumers argue that the superior court abused its
discretion by denying permissive intervention because their class
action and the consent judgment action share common questions  of
law  and  fact,  and allowing intervention would  not  result  in
prejudice or unnecessary delay to other parties.
          Civil   Rule   24(b)   provides  that   [u]pon   timely
application  anyone may be permitted to intervene  in  an  action
when  an applicants claim or defense and the main action  have  a
question  of  law  or fact in common. . . .   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.  We review a denial of a motion for permissive
intervention  for  abuse  of discretion.28   In  Keane  v.  Local
Boundary Commission,29 we stated that  additional parties are . .
.   the  source  of  additional  questions,  briefs,  objections,
arguments and motions; where no new issues are presented,  it  is
most  effective to allow participation by a brief  amicus  curiae
rather than by intervention.30
          There  is  no  question that the consumers claims  have
questions  of  law and fact in common with the consent  judgment.
The  claims  involve  the same used vehicle  purchases  that  are
involved  in the consent judgment, and the consumers  allege  the
same  violations of state consumer protection laws that  are  the
basis for the consent judgment.  Thus, they easily meet the first
prong of the permissive intervention test.
          Nonetheless,  the  consumers must also  show  that  the
superior   court   abused  its  discretion  in  concluding   that
intervention  would  unnecessarily  delay  the  consent  judgment
proceeding  and  prejudice the state, Lithia,  and  other  Lithia
customers  who do not wish to opt out.  Allowing intervention  by
the  consumers would undoubtedly delay execution of  the  consent
judgment and thereby prejudice those vehicle purchasers who  wish
to  pursue  their  remedies  through the  consent  judgment.   As
recommended in Keane,31 the superior court invited the  consumers
to  file  an  amicus brief to assist the court in  reviewing  the
proposed  consent  judgment.  The consumers  filed  a  forty-page
amicus  brief,   which the court considered before approving  the
consent  judgment.   Allowing  any  further  involvement  of  the
consumers   who  have opted out   would cause  further  delay  in
providing relief to those Lithia customers who wish to remain  as
parties to the consent judgment rather than participating in  the
class  action.  Thus, the superior courts decision  to  deny  the
consumers  permissive intervention and allow them to  participate
as amicus curiae was within its discretion.
     
V.   CONCLUSION
          Because  the consumers fail to satisfy the requirements
for  intervention as of right and because the superior court  did
not  abuse its discretion in denying permissive intervention,  we
AFFIRM the superior courts decision to deny intervention.





     
_______________________________
     1     The two class action lawsuits were consolidated in May
2007.

     2     Anchorage Baptist Temple v. Coonrod, 166 P.3d  29,  32
(Alaska 2007).

     3     McCormick  v. Smith, 793 P.2d 1042, 1044  n.3  (Alaska
1990).

     4     Coonrod,  166 P.3d at 32-33 (quoting  Alaskans  for  a
Common Language, Inc. v. Kritz, 3 P.3d 906, 912 (Alaska 2000)).

     5    Id. at 33 (quoting Kritz, 3 P.3d at 911).

     6    Id.

     7     Id.  (quoting  State v. Weidner,  684  P.2d  103,  113
(Alaska 1984)).

     8    Id. at 33.

     9    3 P.3d 906 (Alaska 2000).

     10    Id. at 912.

     11    See id.

     12    Id.

     13    205 F.R.D. 363 (D.D.C. 2001).

     14    Id. at 367.

     15    215 F.3d 26 (D.C. Cir. 2000).

     16    Id. at 28-29.

     17    985 F.2d 1090 (D.C. Cir. 1993).

     18    Id. at 1092-93.

     19    Id. at 1093.  Other federal courts of appeal have come
to  the  same conclusion.  See, e.g., In re Integra Realty  Res.,
Inc., 262 F.3d 1089, 1102-03 (10th Cir. 2001).

     20    Integra Realty Res., 262 F.3d at 1102-04; Mayfield, 985
F.2d at 1093.

     21    21 P.3d 1240 (Alaska 2001).

     22    Id. at 1251.

     23    Anchorage Baptist Temple v. Coonrod, 166 P.3d 29, 32-33
(Alaska 2007).

     24     See  State v. First Natl Bank of Anchorage, 660  P.2d
406,  416 (Alaska 1982) (explaining in case in which state  acted
in representative capacity against a private entity that guidance
as  to the procedural aspects of a case such as this may be found
in  our  own  rule  governing the maintenance  of  representative
actions, Civil Rule 23).

     25    A third requirement of Civil Rule 23(c)(2), set out in
subsection (C), is that the notice advise each class member  that
any  member  who does not request exclusion may,  if  the  member
desires,   enter  an  appearance  through  his   counsel.    This
subsection,  because it is not essential to fair notice,  is  not
applicable in this case.  See First Natl Bank, 660 P.2d at 417.

     26    Id.

     27     Weiss  v.  State,  939 P.2d 380,  400  (Alaska  1997)
(quoting  2  Herbert B. Newberg & Alba Conte,  Newberg  on  Class
Actions  8.32 (3d ed. 1992) (footnotes omitted)).

     28    State v. Enserch Alaska Const., Inc., 787 P.2d 624, 629
(Alaska 1989).

     29    893 P.2d 1239 (Alaska 1995).

     30     Id. at 1250 (quoting State v. Weidner, 684 P.2d  103,
114 (Alaska 1984)).

     31    893 P.2d at 1250.

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