(dissenting) .
Appellant is the Commonwealth of Pennsylvania Public Utility Commission which, as alleged, is the Commonwealth’s “* * * governmental and public agency solely charged with and responsible for the regulation in the public interest of the rates received and service rendered by the plaintiff in these actions and all of the other public utility members of the class.” This and fifteen similar suits seek to recover on behalf of plaintiff and all other electric utilities under appellant’s regulatory jurisdiction, overcharges said to have been paid by them in connection with the purchase of power transformers manufactured and sold by defendants from May 1956 to date. The overcharges are stated to have resulted “from certain combinations and conspiracies in restraint of trade said to have been entered into between the defendants in violation of the Clayton Act, 15 U.S.C. 1.”
The Commission asserts its interest in this and the related actions because of the fact that the contemplated recoveries by the utility plaintiffs may oblige the Commission to reexamine its rate making factors so as to determine whether there should be refunds, lowered rates or both to the consumer public. And the Commission urges “that it is imperative in the public interest that it, the sole statutory representative of the Pennsylvania public at large, be present in the status of a party at any settlement negotiations, pretrial conferences, and similar proceedings, which may be held after these suits are at issue. The Commission believes that its presence and participation may be helpful toward assuring that any recoveries which may be made by way of settlement shall be proper and adequate, and that the Court will have available, if it desires, the Commission’s special knowledge of public utility operations and regulation which affect many aspects of these cases. In stating this belief, the Commission is thoroughly aware of the rule that class litigation is not subject to settlement without approval of the Court. It nevertheless believes, and respectfully represents, that the amount of the recoveries which are sought in these suits, as well as the important issues of law and fact which are involved, justify its intervention as a party.”
I see no negation of the presence of a clear public interest, or of the rightness of the Commission’s acceptance of its responsibility to represent that interest. The objection really stressed and urged as overwhelming is that the Commission at this initial point of the litigation is unable to put a hard dollars and cents figure on that public interest. That there will be recoveries in these claims; that they will probably be by way of settlement; that the amounts will be large; that they will affect the Pennsylvania utility rates as the Commission alleges, no one seems to seriously doubt.
The district court thought such a substantial question of law and fact was involved in the issue that it certified the case for immediate appeal. This court, while denying formal intervention, would permit a sort of back door, illusory intervention by assuming that “there is no reason to believe that the plaintiff or the district court, as the case may be, would reject any proper tender of assistance, in the just disposition of the pending litigation.” In passing, it should not be necessary to note that it is not the plaintiff but the defendants who oppose the Commission’s request to be given a legitimate status in the proceedings.
The majority is satisfied that the Commission does not meet the requirement of Rule 24(a) (2). As I see it, that sat*862isfaction is unwarranted. The Commission affirmatively alleges as above quoted that it is imperative.that it, as the public’s representative, be present at any settlement negotiations, pretrial conferences, etc. after the suits are at issue. It states that it “ * * * believes its presence and participation may be helpful toward assuring that any recoveries which may be made shall be proper and adequate * * (Emphasis supplied). A literal reading of the rule calls for no more than this. As the majority states: “That rule confers upon an interested person an unqualified right to intervene in an action '(2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by the judgment in the action’ ”. It is the Commission’s deep conviction that settlement of the claims, if that occurs, should be closely scrutinized by it during the negotiations therefor, not after settlement is an accomplished fact. That concept is substantially acceded to by the court but the latter misconceives its purpose. The Commission is not seeking to check the final settlement figures and mechanically adjust rates and refunds from that source. What the ■Commission expressly desires is to have full knowledge of the settlement negotiations while they are being conducted. Its purpose is to make sure that the settlements themselves are fair with particular reference to the consumer public. At the outset of this proceeding the Commission shows its origin, shows the grave existing margin for error or worse and how complete, simple, justified provision against it can and should be taken. Defendants in their pretentious objection to this are displaying a very late righteous .attitude, impossible to justify under the allegations of the complaint detailing the basis for this suit.
Not only is the Commission within the expressed language of Rule 24(a) (2) .as seen above but in addition the sound law is that it need not come within the exact statement of the rule where it is •in the salutory process of guarding the public from the substantial harm that could well arise out of these cases if the Commission is barred from appearing. That is the doctrine of Securities and Exchange Commission v. United States Realty & Improvement Co., 310 U.S. 434, 60 S.Ct. 1044, 84 L.Ed. 1293 (1940), and so conceded by the court opinion. It is to prevent that further addenda to this whole nauseating mess that the Commission asked leave to participate.
Under the second independent ground for granting appellant’s application, it is admitted that the district court could have properly allowed the application. However, states the majority, the denial was not arbitrary or an abuse of discretion. The reason advanced for that conclusion is that there is “ * * * no showing of such clear and substantial advantage from the allowance of intervention as could make its denial arbitrary or an abuse of discretion.” (Emphasis supplied). The court again stresses what it considers the grave fault of the Commission’s position, namely, that the Commission does not contend that if it is refused intervention, the public will necessarily be mulcted. And once again sharp attention must be directed to the Commission’s primary motivation in making its timely application — the elimination of possible inadequate handling of these important claims.
On this branch of the appeal the court, to justify washing its hands of the Commission’s request, cites the delay the Commission participation would occasion. It suggests that at the least there would be “additional questions, objections, briefs, arguments, motions and the like * * Actually that time element of itself would be small but even so it is not of the essence here. The “just determination” of these actions as stated in Rule 1 of the Federal Rules of Civil Procedure is the true goal and the only goal. That course is charted in the forward looking, most acceptable decision (not mentioned by the court) of Mitchell v. Singstad, 23 F.R.D. 62 (D.C.Md.1959).
The complacent, resigned view that nothing can or should be done to take *863care of the imperative public interest in these actions leaves me fundamentally uneasy. The arguments of the appellee— not within the letter of the rule, delay, turn the trial into a brawl — strain too much. The acquiescence in them by the court brushes aside the impressive merit of appellant’s position. It should not be so casually rejected. A large segment of the people of Pennsylvania have a tangible stake in this final reckoning of defendants’ unconscionable activities. They are entitled to have their expert, responsible representative in a position to check on it now and not be relegated to some meaningless gesture after the final disposal of the claims.
I would allow the Commission to intervene.