In the united states district court for the northern district of texas dallas division ALLSTATE INSURANCE COMPANY § And STERLING COLLISION CENTERS, § INC., § § Plaintiffs, § § VS. § CAUSE NO. 3:03-CV-2187-K § GREG ABBOTT, in his official capacity § as ATTORNEY GENERAL OF TEXAS, § and CAROL KEETON STRAYHORN, in § her official capacity as COMPTROLLER § OF PUBLIC ACCOUNTS § Defendants, MOTION TO INTERVENE OPPOSED BY PLAINTIFFS, UNOPPOSED BY DEFENDANT AND INTERVENOR DEFENDANTS COMES NOW Jan and Joseph Krocker, and respectfully moves this court to grant permissive intervention in the above styled matter pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. Jan Krocker and Joseph Krocker are third party claimants in litigation with Allstate Property and Casualty Insurance Company (“Allstate”) pertaining to claims for bad faith, Texas Deceptive Trade Practices Act (“TDTPA”), fraud, breach of contract, civil conspiracy, intentional misrepresentation, concealment and negligent misrepresentation. The suit involves an automobile collision that occurred in Houston on August 2, 2003 between their 2000 Toyota Celica and xxxx aka xxxx’s (“xxxx”) 1995 Toyota Celica. The Krocker’s insurance company is AMICA. xxxx’s insurance company is Allstate. Jan and Joseph Krocker filed suit in Harris County Court at Law No. 2, Case No. 801,289 against Allstate, xxxx and xxxx, the Allstate agent handling the claim. Jan and Joseph Krocker decided to sue Allstate rather than file a claim on their insurance with AMICA because they feared their insurance rates would be affected by a claim. Dan Krocker represents his wife Jan Krocker and his son, Joseph Krocker. On December 2, 2003, the court granted a partial summary judgment finding Murray caused the car accident. In support of this motion, movant would show the following: 1. As third party claimants in litigation with Allstate, Jan and Joseph Krocker have intimate details of the civil conspiracy, intentional misrepresentation, fraud, negligent misrepresentation and bad faith systemic problems in dealing with automobile claims with Allstate. The Krockers have the consumer’s blood on the floor which has not been presented by either the Attorney General or the Automotive Service Association and Consumer Choice in Autobody Repair. The bulk of the Defendant’s and Intervenor Defendant’s argument has predominately been economics. Dan Krocker has posted his pleadings and demand letters on the Internet and has received feedback from both consumers and lawyers pertaining to Allstate and Sterling Collision’s systemic fraudulent practices. Consequently, movants have knowledge of many of the issues raised in this litigation and raised by the various parties when the legislation was being debated and passed. 2. Allstate filed protective orders seeking to prevent the Krockers from obtaining their information from the Attorney General and the Texas Department of Insurance. 3. Movants have a compelling interest to intervene and testify because they have personal knowledge based upon their various interviews, e-mail, telephone conversations, correspondence with consumers, and people in the industry of many of the facts and circumstances surrounding the systemic fraudulent practices of Allstate and Sterling Collision. It is also unfair to prevent the movants and consumers in similar situations, who suffer from Allstate and Sterling Collision’s systemic fraudulent business practices from testifying, producing evidence, affidavits and defending H.B. 1131. Consequently, movants have an interest relating to the subject of the action and the applicant’s interest is not adequately represented by the existing parties. Denial of the Motion to Intervene will result in irreparable harm to the movants; the interests of justice require that the Motion to Intervene be granted. 4. Allstate and Sterling Collision worked diligently with the various state legislatures to mold a bill which they could all agree on. The state legislature made significant concessions to Allstate and Sterling Collision to get some version of the bill passed. Despite representations by Allstate and Sterling that they were satisfied with the final version of the bill, Allstate and Sterling Collision filed this legal challenge to H.B. 1131 on Aug. 29, 2003. Allstate and Sterling Collision should be estopped from further litigation since the state legislature worked out a bill which they had agreed to. Allstate and Sterling want a second bite at the apple. 5. A review of the state legislature comments and discussions reflects the following: a H.B. 1131 attempts to eliminate the only independent voice that the car owner has in the repair process, that of an independent body shop owner, insurance companies control both the money to pay for damage to a claimant’s car and the person who will decide what repairs need to be made to get the car out the door. Because publicly traded insurance companies have a responsibility to stockholders to seek the highest premium possible and pay the lowest claims, for which they can negotiate, the consumer, is caught in the middle of the equation. Movants are an independent voice attempting to be heard by this court. Dan Krocker, as an officer of the court, has a duty to step forward and point out the false statements made by the Plaintiffs in this case. b. The vertical integration of this industry with a third party payer now directly competing with traditional independent providers creates an inherent conflict of interest by providing an unusually convenient and virtually irresistible avenue for predatory practice by the insurance industry and leaves the consumer without anyone to question the type or quality of repair that their insurance company proposes. This situation would be like an HMO owning a hospital and directly employing your doctors. The lack of choice ensures a system flawed with shoddy, poor quality and less safe repairs. Insurance company ownership of body shops eliminates the rights of consumers and destroys the competitive marketplace. In many states, insurers force repairers to use cheaper, more inferior parts, place caps on prices that can be charged for auto refinishing or paint products, clip cars and steer business away from specific shops. Insurance companies owning the collision repair facility would be like having two attorneys from the same firm represent the plaintiff and the defendant. Neither parties’ best interests will be served. c. Insurance companies invest in things like stocks and bonds and real estate trusts. They should not invest in auto body shops. There’s only one reason for them to have an auto body shop and that is for them to direct your banged up vehicle to their auto shop to make an extra buck off of you. They’re going to charge you the same rate, the same price as you would get at the garage down at the local Chevy dealership or your neighborhood garage. They’re going to charge you the same price. But just like your neighborhood garage is going to make a profit, they’re going to make an extra profit. So, they’re making one off of your premium and two off of the repair. There is no reason for an insurance company to own an auto repair facility. Insurance companies are basically risk adverse. They like solid liquid investments and auto shops are not one of these. 6. Allstate and Sterling falsely contend that their conflicts of interests and lack of disclosure of ownership of the repair facilities, failure to provide trained technicians, failure to inform the claimant of aftermarket parts, used parts, non-OEM parts, crash parts and false guaranty promises are actually an “innovation or idea which provides a superior customer option”. In reviewing the pleadings, discovery, state legislation and consumer complaints, Dan Krocker has found Allstate and Sterling have made the following false statements to the court: a Sterling offers “full guarantees” on parts and labor and faster repair times. b “Allstate and Sterling has (sic) always disclosed Sterling is owned by Allstate and that policyholders have the right to select any auto body shop of their choosing”. c. “Insurer-owned shops have multiple integrity incentives. First, they are an arm of the insurance company trying to promote an overall positive image of the insurer. Second, insurer-owned shops have no incentive to insurer to “cheat themselves”. Pursuant to the findings of the Insurance Consumer Advocate Network, “It is a widely accepted fact that insurance companies do not have the insured’s best interest in mind when involved in your health decisions, home losses, or collision repair. That mistrust in consumers will intensify when they realize their insurer owns the repair shop.” d. “Sterling has removed all references to Allstate from its website.” e. “The fact is everything Allstate says about Sterling is truthful and non-misleading.” Neither Allstate nor Sterling have confessed to Sterling being caught in December, 2002 by ex-employee whistle blowers with a computer program that fraudulently misrepresents the technician’s hourly wage, by one dollar per hour. The fraudulent hourly rates in the program affects the low estimate quoted to consumers which discourages them from finding competing bids from independent shops. Unlike Sterling Collision and other shops on Allstate’s approved list, independent shops are not forced to use untrained technicians, after-market, non-OEM parts, and clipping whenever possible.. f. “Sterling expressly recognized “Allstate customers and claimants may use any body shop they choose.” It is not unusual for insurance companies to pressure the consumer to go the shops they contract with. It is not unusual for Allstate to refer all complaints pertaining to Sterling Collision repairs back to Sterling Collision, Allstate does not want to be bothered. A review of State Department of Insurance Complaints Ratios and Rankings and State and Federal court records shows Allstate is the second worst insurer for non-payment of claims. g. “Sterling truthfully told customers that they can, on average, expect to get their cars back sooner, get placed in a rental car more easily, and complete payment resolution more readily.” h Sterling Collision has a 94% customer satisfaction rating. It is difficult to imagine what group responded to a survey giving a 94% satisfaction rate. It clearly was not a group of consumers in Blue Island, Illinois, in which the town examined testimony pertaining to Allstate and Sterling Collision’s fraudulent practices and voted against Sterling Collision’s attempt to get a zoning variance to build one of their new facilities. Allstate and Sterling Collisions sued the town and each of the alderman who voted against the variance. 7. Movant has been documenting consumer complaints since last August, 2003, which highlight the inherent conflicts of interests, fraud, bad faith claims pertaining to Allstate and Sterling Collision. 8. In movants’ case and in many of the complaints reviewed from open records requests and an examination of complaints on allstateinsurancesucks.com, complaints.com and industry websites, movants have found a large number of insureds and third party claimants are dissatisfied with their treatment by Allstate and Sterling Collision. This case has predominately focused on the conflict of interests, constitutionality of the new state law prohibiting insurance companies from owning body shops and economics of the insurance companies steering all their business to their own body shops or shops on their approved lists and immediately discontinuing their relationships and referrals to independent body shops which are within a 5 to 10 mile radius of their insurance owned shops. Currently, the bulk of the argument in the case has been towards economics rather than attacking Allstate and Sterling’s false claims that their arrangement benefits the consumer. The Allstate and Sterling arrangement is an inherent conflict of interest which inhibits the flow of information to the consumer concerning the risks of clipping cars, the use of non-OEM parts, aftermarket parts, used parts, imitation parts and crash parts. 9. Although the state of Texas requires a formal notice procedure pertaining to the claimant selecting the auto body shop, much of the time the notice requirement is fulfilled in the original insurance policy agreement only and not at the time of repair. At the time of repair, any notice is provided in a deceptive manner to entice the consumer into using aftermarket crash parts by giving the consumer false guaranties and assurances. 10. Most vehicle owners know little about the specifics of a vehicle repair. The vehicle owner’s interest will arouse after a vehicle accident. It is at the point of repair that the vehicle owner should be informed of the types of crash part(s), i.e. aftermarket, original equipment manufactured, recycled, etc., to be used in the repair. Although the insurers can no longer force the consumer to use a particular repair shop, they do mislead the consumer on the attributes of the aftermarket crash parts by providing false, misleading information and empty guaranties to market imitation parts without any of the savings going to the consumer. 11. Movants have found Allstate attempts to get around the 1991 amendments which prohibit them from steering claimants to Sterling Collision or other particular shops under their Direct Repair Program (“DRP”) or their Priority Repair Option (“PRO”) by suggesting the car can be fixed at an unrealistically low prices which prohibits the claimant from locating a shop that can fix the car at the quoted price or requiring totaled cars be clipped and attached to another car of the same make and model. Movants have been unable to locate a body shop that does this clipping procedure other than Sterling Collision and shops recommended by Allstate. Unlike many of the independent body shops which require their technicians to have ASE certification or ICAR certifications, the employees and managers at Sterling Collision lack such training and certification. Sterling is attempting to have one manager at each location go through the ASE or ICAR certification but this is simply a corporate goal which has not be obtained. There is no record that any Sterling Collision shop is an ICAR Gold Class shop. To the extent Sterling management eventually does get the training and certification, then the question for the consumer will be, do you want your car fixed by a certified technician or do you want a certified technician checking it off to make sure its right? 12. Allstate has suggested movants look at Allstate’s list of body shops that do clip jobs. The 1991 amendment and H.B. 1131 is useless for such a situation when the consumer is right back being blindly led to clip a car and use aftermarket parts by a body shop owned by the insurance company. To add insult to injury, the clip jobs may affect the vehicle VIN number since the newly acquired wreck may be attached at the firewall by the steering column causing your vehicle to now have a different VIN number. Obviously, Allstate and Sterling Collision do not properly disclose the clipping process, the problem with the VIN number and the problem with diminished value. 13. Dan Krocker has posted their demand letters and his pleadings on the Internet and have received a tremendous response from various consumers and lawyers pertaining to the conflict of interest in insurance companies owning body shops, clipping, aftermarket parts etc. Neither the Defendant nor the Intervenor. Defendants have posted requests for information on the Internet. 14. When the attorneys for Allstate deposed Jan Krocker on November 21, 2003, they predominately asked questions pertaining to the “illegal operations” of Allstate, the unauthorized practice of law by Allstate, the civil conspiracy, intentional misrepresentation, concealment, fraud and negligent misrepresentation. Jan Krocker slowly walked the Allstate attorneys through her assessment and findings pertaining to Allstate’s systemic fraudulent business operations. Allstate had represented the Krocker’s car could be fixed for $7,792.56 without disclosing this required an extremely controversial, hazardous front end clip which could only be done by either Sterling Collision or one of the other approved shops on Allstate’s list. The Krocker’s were unable to find an independent body shop that would perform the front end clip. Allstate’s concern at deposition with their executives going to jail is a far cry from their representation to this court that Sterling has a 94% customer satisfaction rate. 15. The recent discovery disputes in this case, the Plaintiff’s production of over 60,000 pages of documents on a laptop in which the Defendants were not allowed to make copies, exemplifies the difficulty of obtaining information pertaining to Allstate and Sterling Collisions’ systemic fraudulent practices which arise from the inherent conflict of interest in allowing insurance companies to own body shops. Movant has been able to identify, interview insureds and third party claimants who discredit the plaintiffs’ alleged 94% customer satisfaction and highlight the false statements made to the court. 16. The intervention will not delay the proceedings in this case. Movants only recently became aware of the litigation. Who would ever guess that after Allstate and Sterling Collision had spent so much time arguing over the proposed legislation, getting the legislation changed to meet their private agenda and finally agreeing to the final language, that they would turn around and stab the state of Texas in the back by re-litigating their points. Surely, Allstate and Sterling Collision are estopped based upon their aggressive negotiations in which the final bill reflected their agreement with state legislatures. This motion has been prepared in a timely and expeditious fashion. It is well established that the granting of permissive intervention is discretionary with the court. There is much precedent for the granting of this motion as set out in the attached memorandum of law. THEREFORE, applicants respectfully pray this Motion To Intervene be granted. Respectfully submitted, Dan Krocker, CPA Attorney at Law 710 North Post Oak Road, Suite 400 Houston, Texas 77024-3812 (713) 683-0397 Fax (713) 683-0398 E-mail dankrocker55@aol.com S.D.I.D. No. 3230 SBN 11728300 Counsel for Jan and Joseph Krocker  in the united states district court for the northern district of texas dallas division ALLSTATE INSURANCE COMPANY § And STERLING COLLISION CENTERS, § INC., § § Plaintiffs, § § VS. § CAUSE NO. 3:03-CV-2187-K § GREG ABBOTT, in his official capacity § as ATTORNEY GENERAL OF TEXAS, § and CAROL KEETON STRAYHORN, in § her official capacity as COMPTROLLER § OF PUBLIC ACCOUNTS § Defendants, KROCKER’S BRIEF IN SUPPORT OF THEIR MOTION TO INTERVENE TO THE HONORABLE ED KINKEADE, UNITED STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF TEXAS: Jan Krocker and Joseph Krocker are third party claimants in litigation with Allstate Property and Casualty Insurance Company (“Allstate”) pertaining to claims for bad faith, Deceptive Trade Practices (“TDTPA”), fraud, breach of contract, civil conspiracy, intentional misrepresentation, concealment, negligent misrepresentation. Jan and Joseph Krocker file this brief in support of their Motion To Intervene. Allowing intervention in this case, as in many other permissive intervention situations, enables the court to base its decision on more complete information, thus potentially offsetting any increase in decision costs by reducing error costs. Intervention is the process by which a nonparty takes the initiative and seeks to be added to the lawsuit. The procedure for intervention under FRCP 24 permits a party to voluntarily join a pending lawsuit. FRCP 24 is intended to prevent multiple lawsuits when common questions of law or fact are involved. Deus v. Allstate Ins. Co., 15 F.3d 506, 525 (5th Cir. 1994); Washington Elec. Coop. v. Massachusetts Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2nd Cir. 1990). Rule 24(a). Under the language of Rule 24, intervention as of right has three requirements: an interest related to the subject of the action, likelihood that the interest be impaired in the intervenor's absence, and lack of adequate representation by the existing parties. However, courts typically condense those three requirements to two requirements: first, a potential intervenor as of right must claim a sufficient interest in the case, and second, that interest must not be adequately represented by existing parties. Permissive intervention is more straightforward: if the potential intervenor's claim or defense has a question of law or fact in common with the main action, the trial court has discretion to grant or deny the motion to intervene. As a result of its creation, amendments, and interpretation, Rule 24(a)(2) serves three primary functions that should be incorporated into the framework of intervention analysis. See Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 135 (1967); Alan Jenkins, Foxes Guarding the Chicken Coop: Intervention as of Right and the Defense of Civil Rights Remedies, 4 Mich. J. Race & L. 263, 277 (1999). The first function is to protect the interests of non-parties. Under the first two sections of the rule, an intervenor must show that it has an interest that could be impaired by the resolution of the suit. Fed. R. Civ. P. 24(a)(2). To arrive at whether representation is adequate, the intervenor has already demonstrated a need to be a party to the action. If the existing governmental party is adequately protecting the demonstrated interests of the intervenor, then the first function is fulfilled. This protective function encompasses more than just a shared interest. If the intervenor has interests that are subsidiary to the primary issue before the court, yet the disposition will affect them, the interests must still be protected. The second function of Rule 24(a)(2) is to further the court's truth seeking. The court should try all the legal and factual issues in the suit. If an interest is presented that fulfills the first two requirements of Rule 24, and is not subsumed into interests already represented, it should be represented. Finally, the third essential function of Rule 24(a)(2) is judicial economy. All issues that are part of an action should be disposed of in a single suit. Even if the intervenor is expanding the scope of litigation in a particular suit, judicial economy is not necessarily compromised by intervention. Again, if the intervenor has shown a valid interest, which could be impaired by the resolution, the court should grant intervention as of right absent valid grounds for exclusion. Rule 24(b). Rule 24(b) has not been amended since it was adopted in 1938. Wright, Miller, and Kane, 7C Federal Practice and Procedure § 1910 at 354-55 (cited in note 9). However, an amendment to Rule 24(a) (intervention as of right) indicates the intent and spirit of the Rules. When FRCP 24(a) was amended in 1966, the Advisory Committee, rather than making intervention as of right more difficult, removed a 1948 requirement that the applicant trying to intervene is or may be bound by a judgment in the action. The Advisory Committee Notes state that the requirement was stricken because it could defeat intervention in some meritorious cases. FRCP 24, Advisory Committee Note to the 1966 Amendments. Permissive Intervention. Intervention may be allowed in the court’s discretion when the applicant’s claim or defense and the main action involved a common question of law or fact AND allowing intervention “will not unduly delay or prejudice the adjudication of the rights of the original parties.” FRCP 24(b). Permissive intervention lies, in part, in the sound discretion of the trial court and is reviewable only for abuse. The court can impose almost any condition when it grants a permissive intervention. Stringfellow v. Concord Neighbors in Action, 480 U.S. 370, 377-78 (1987)(court restricted discovery and intervenor’s right to request additional relief); Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450, 469-70 (4th Cir. 1992)(due process problem when court denied intervenors all discovery and required them to begin trial next day). Rule 24 traditionally has received a liberal construction of applicants for intervention. Sierra Club v. United States EPA, 995 F.2d 1478, 1481 (9th Cir. 1993), John Doe #1 v. Glickman, 256 F.3d 371, 375 (5th Cir. 2001). Furthermore, the 5th Circuit explains that the burden to show inadequate representation is “minimal”. Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994). Courts recognize that the [Intervenor's] will make a more vigorous presentation of [a] side of the argument”. N.Y. Pub. Interest Research Group, Inc. V. Regents of the Univ. Of the State of N.Y., 516 F.2d 350 (2d Cir. 1975).Other courts recognize that inadequacy of representation may be shown where “the existing party who purports to seek the same outcome will not make all of the prospective intervenor's’ arguments.” Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1247 (6th Cir. 1997). If the court has any doubts regarding whether a proposed intervenors’ interests will be adequately represented, the court should resolve those doubts in favor of intervention. See Fed. Sav. and Loan Ins. Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211, 216 (11th Cir. 1993). The scope of the intervenor’s interest is usually determined by state law, not federal. Whether intervenor’s interests were already adequately represented in the action was a question of federal law. Olden v. Hagerstown Cash Register, Inc., 619 F.2d 271 (3rd Cir. 1980). Whether intervention is sought as a matter of right or merely as permissive, it can be granted only upon timely application. Timeliness is a threshold question addressed to the sound discretion of the court. The following factors are usually considered: The first factor is the state of the proceedings when intervention is sought. In December, 2003, Dan Krocker became ware of this case pursuant to an open records request to the Attorney General’s Office. Dan Krocker did not receive the banker’s boxes from the Attorney General’s office until late January, 2004. The Fifth Circuit has held that the relevant consideration is the length of time during which the would-be intervenor actually knew or reasonably should have known of her interest in the case before she petitioned for leave to intervene. Stallworth v. Monsanto Co., 558 F.2d 257, 264-265 (5th Cir. 1977). The second factor considered is any prejudice to the existing parties resulting from the would-be intervenor’s failure to request intervention as soon as she knew or reasonably should have known of her interest in the case. Neither party is prejudiced since Jan and Joseph Krocker are not requesting a continuance. Adding Jan and Joseph Krocker as intervenors will not lengthen the hearing since they are well prepared and are familiar with the facts and witnesses. The third factor is the possible prejudice to the would-be intervenor. This factor is given weight since the movants interest is identical to that of a party and that party’s representation may not be adequate to protect the movants interest. United States v. Jefferson, 720 F.2d 1511, 1517 (11th Cir. 1983). The third factor considered regarding timeliness is basically why the party seeking to intervene waited as long as she did. In the Fifth Circuit, the test is whether there are “unusual circumstances militating either for or against a determination that the application is timely. The length of delay by itself is not controlling: “The focus is on the date the person attempting to intervene should have been aware of his interest would no longer be protected by the parties, rather than the date the person learned of the litigation. Officers of Justice v. Civil Service Comm’n, 934 F.2d 1092, 1095 (9th Cir. 1991)(intervention allowed 10 years after consent decree because existing party changed its position on interpretation of important provision); Banco Popular de Puerto Rico v. Greenblatt, 964 F.2d 1231-1232 (1st Cir. 1992)(potential intervenor must move to protect its interest as soon as it has actual knowledge a “measurable right exits”.). One good reason for delay may be changed circumstances. The existing parties have changed their positions and no longer adequately protect the would-be intervenor’s interest. Legal Aid Society of Alameda Co. v. Dunlop, 618 F.2d 48 (9th Cir. 1980)(-party previously siding with would-be intervenor took contrary position on critical discovery issue and refused to appeal ruling). As a fourth factor, some courts consider “any unusual circumstances militating either for or against a determination that the application is timely. Doe v. Duncanville Ind. School Dist., 986 F.2d 953 (5th Cir. 1993); Banco Popular de Puerto Rico v. Greenblatt, 964 F.2d 1227, 1223 (untimely intervention allowed since action raises “matters of broad social significance”. A would-be intervenor need not have a specific legal or equitable interest in jeopardy. But she must show “a direct, substantial legally protectable interest in the proceeding.” New Orleans Pub. Service v. United Gas Pipe Line, 732 F.2d 452, 463 (5th Cir. 1984). The National Audubon Society had sufficient interest in the preservation of birds and their habitats to intervene of right in suit by nonprofit organization dedicated to multiple use management of public lands against Secretary of Interior. Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir. 1983). Sponsors of ballot initiative had sufficient interest in suit challenging constitution of resulting law. Yniguez v. Arizona, 939 F.2d 727, 735 (9th Cir. 1991). Permissive intervention is a two stage process. First, the district court must decide whether one of the grounds for such intervention exists i.e. timely application, prejudice to parties, prejudice to would-be intervenor, reason for delay, and existence of unusual circumstances. If this threshold requirement is met, the court must then exercise its discretion in deciding whether intervention should be allowed. Stallworth v. Monsanto Co., 558 F.2d 257, 269 (5th Cir. 1977). Whether sufficient grounds for such intervention exist is a question of law. Thus, an appellate court is not bound by the trial court’s determination of whether there is a “common question of fact or law.” Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470, 472 (9th Cir. 1992)(whether Rule 24 (b) permits intervention is a question of law). But if a “common question” (or other ground) is established, whether intervention “will unduly delay or prejudice the original parties” is committed to the sound discretion of the trial court. Stallworth v. Monsanto Co. supra, 558 F.2d at 269. The existence of grounds for permissive intervention is a question of law. If such ground exist, the applicant “may be permitted to intervene.” FRCP 24(b). One the conditions for permissive intervention are met, intervention rests in the sound discretion of the court. The trial court is entitled to consider other factors in deciding whether intervention is appropriate. Stallworth at 265, Spangler v. Pasadena City Board of Education, 552 F2d 1326, 1329 (9th Cir. 1977). 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. In addition, the court may consider such matters as: the nature and extent of the would-be intervenor’s interests; their standing to raise relevant legal issues; the legal position they seek to advance, and its probable relation to the merits of the case whether the intervenor’s interests are adequately represented by other parties whether intervention will prolong or unduly delay the litigation; and whether the would-be intervenors will significantly contribute to full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented. League of United Latin American Citizens v. Clements, 884 F.2d 185 (5th Cir. 1989). Movant is able to show federal subject matter jurisdiction for the permissive intervention since movant has made no newly raised claims or causes of action. Movant’s cause of action is similar to the Attorney General, Defendant and Automotive Service Association and Consumer Choice in Autobody Repair, Intervenor-Defendant. Courts have explained the requirements for permissive intervention by stating: Given that an application is timely, the Court in its discretion may permit intervention under Rule 24(b)(2) if the applicant presents a 'claim or defense' which has 'a question of law or fact in common' with the main action. Usery v Brandel, 87 FRD 670, 677 (W D Mich 1980), quoting FRCP 24(b)(2). While some courts have described the permissive intervention standard as liberal, scholars have gone so far as to state that an intervenor-by-permission need not have been a proper party at the beginning of the suit, since of the two tests for permissive joinder of parties, a common question of law or fact and some right to relief arising from the same transaction, only the first is stated as a limitation on intervention. , Miller, and Kane, 7C Federal Practice and Procedure § 1911 at 357 (cited in note 9) (citation omitted). The Supreme Court has held that intervenors by right or by permission ordinarily have the right to appeal an adverse final judgment by a trial court, just as parties with standing do. Stringfellow v Concerned Neighbors in Action, 480 US 370, 375-76 (1987) ( An intervenor, whether by right or by permission, normally has the right to appeal an adverse final judgment by a trial court. ). Despite the obvious argument that, if the intervenors can appeal on their own, they certainly should be able to join a suit in which the main parties meet the requirements for standing, the area of intervention is mired in a circuit split. The Supreme Court has held that an interest under Rule 24(a)(2) means a significantly protectable interest, but the Court has never clearly articulated how the significantly protectable interest requirement relates to the Article III of the Constitution requirements or the Rule 24(b) requirements. Chiles v Thornburgh, 865 F2d 1197, 1212 (11th Cir 1989) ("[The Supreme Court] has never articulated the precise relationship between [the interest required for intervention] and the Article III standing requirements."). A consideration of the Court's cases addressing intervention is helpful in attempting to understand the circuit split. Perhaps the most relevant of the Court's recent opinions, Diamond v Charles, 476 US 54 (1986), is factually distinguishable from the typical intervenor cases, which concern standing in the initial suit that involves both a plaintiff and a defendant. In Diamond, an intervenor was trying to continue a suit after one of the original parties had dropped out. The Court held that Article III standing requirements had to be satisfied in addition to the requirements set forth in Rule 24. However, the Court did not address whether the Article III requirements must be met in a case in which the original parties remain in the suit. Rather, as the Fifth Circuit has recognized, The Diamond Court merely recognized that some courts have equated the Rule's interest requirement with that of standing. Ruiz v Estelle, 161 F3d 814, 831 (5th Cir 1998). Of the cases cited in Diamond, only [Southern Christian Leadership Conference v Kelley, 747 F2d 777 (DC Cir 1984)] maintains that Article III (and not just Rule 24(a)(2) and 24(b)(2)) requires interveners to possess standing. Unfortunately, the Kelley opinion merely assumes that Article III requires interveners to possess standing, and offers neither precedent nor reasons to support this assertion. The Diamond Court recognized the confusion among the lower courts, yet declined to put forth a clear rule. A line of cases have developed which have not required a showing of Article III standing by parties seeking to intervene. In Hodgson v United Mine Workers, 473 F2d 118 (DC Cir 1972), the Court of Appeals for the District of Columbia did not even mention Article III standing when it held: The right of intervention conferred by Rule 24 implements the basic jurisprudential assumption that the interest of justice is best served when all parties with a real stake in a controversy are afforded an opportunity to be heard. In a case decided before the 1966 amendment to Rule 24(a), the same court barely mentioned Article III in allowing intervention. Instead, the court based its reasoning on the view that the interveners had such a vital interest in the result of the suit that they should be granted permission to intervene as a matter of course unless compelling reasons against such intervention are shown. In Ruiz v Estelle, 161 F3d 814 (5th Cir 1998), however, the Fifth Circuit extensively discussed Article III standing, permissive intervention, and intervention as of right when determining whether two Texas legislators had the right to intervene in a twenty-five-year-old suit regarding Texas prison conditions. The court assumed arguendo that the legislators would not meet the requirements of standing, but held that Article III does not require interveners to independently possess standing where the intervention is into a subsisting and continuing Article III case or controversy and the ultimate relief sought by the interveners is also being sought by at least one subsisting party with standing to do so. Therefore, even though the Ruiz court assumed that the interveners did not have Article III standing, it held that they did not need to have Article III standing to intervene in a pending case. In reaching this result, the Fifth Circuit argued that courts requiring interveners to demonstrate Article III standing had misinterpreted Diamond and offer little justification for this new requirement. Jan and Joseph Krocker have shown sufficient justification for the court to grant permissive intervention in this case. The court has sole discretion to grant permissive intervention. In the event permissive intervention is not granted, additional litigation in federal court will probably be brought by the various parties. Dated April 5, 2004 Respectfully submitted, Dan Krocker, CPA Attorney at Law 710 North Post Oak Road, Suite 400 Houston, Texas 77024-3812 (713) 683-0397 Fax (713) 683-0398 E-mail dankrocker55@aol.com S.D.I.D. No. 3230 SBN 11728300 Counsel for Jan and Joseph Krocker