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12/14/77 MATTER A CIVIL INVESTIGATIVE DEMAND

December 14, 1977

IN THE MATTER OF A CIVIL INVESTIGATIVE DEMAND ADDRESSED TO BOB BREST BUICK, INC.


Suffolk. Motion filed in the Superior Court on April 11, 1977. The proceeding was heard by Ford, J.

Hale, C.j., Grant, & Brown, JJ.

SYLLABUS BY THE COURT

Attorney General. Discovery. Consumer Protection Act. Practice, Civil, Appeal.

The opinion of the court was delivered by: Brown

An order by a Superior Court Judge modifying the scope of a civil investigative demand issued by the Attorney General was interlocutory and hence not appealable. [718-719]

Under G. L. c. 93A, § 6(1)(b), the Attorney General must merely show relevance in support of a civil investigative demand. [719-720]

The Attorney General issued a Civil Investigative Demand (C.I.D.) to Bob Brest Buick, Inc. (Buick), pursuant to his authority under G. L. c. 93A, § 6(1), regarding acts or practices allegedly in violation of G. L. c. 93A, § 2(a). Buick filed a motion for relief pursuant to § 6(7) of the statute. A Judge of the Superior Court ordered that the C.I.D. be modified. Buick appeals from this order.

1. The C.I.D. initially required Buick to produce extensive records. The order of the Superior Court Judge modified the C.I.D. to require production of only some of the information originally sought. For all that appears, the Judge merely reduced the scope of the C.I.D. and changed the time and place for the production of the records. There has not yet been an order for compliance, nor has the Attorney General requested such an order. See G. L. c. 93A, § 7. Accordingly, as no final order has been entered, the appeal from the modification by the Judge must be deemed interlocutory, *fn1 and hence not properly before us at this time. *fn2 See Pollack v. Kelly, 372 Mass. 469, 470-472 (1977), and cases cited. Cf. In the Matter of Rom, 459 F. 2d 15, 16 (3d Cir. 1972), and cases cited. Contrast Mass.R.Civ.P. 64, 365 Mass. 831 (1974); G. L. c. 231, § 111, as appearing in St. 1973, c. 1114, § 199. But see G. L. c. 231, § 118, as appearing in St. 1973, c. 1114, § 202. Further support for our view can be found in the case of In the Matter of a Civil Investigative Demand Addressed to Yankee Milk, Inc., 372 Mass. 353, 356 (1977), where the Supreme Judicial Court indicated that C.I.D. matters are to be handled in the same manner as discovery proceedings.

2. Although we do not have to reach any of Buick's other contentions, we consider them by way of dictum (compare Nantucket Land Council, Inc. v. Planning Bd. of Nantucket, ante, 206, 207-208 [1977]). These arguments, taken as a group, relate to the type of showing the Attorney General must make under the statute in question to support a C.I.D. We look again to the Federal precedents, particularly those in the area of antitrust law. The case of United States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950), is especially helpful. Administrative agencies and State officials charged with seeing that a statute is enforced must not only have broad powers of investigation and subpoena; they must also be able to exercise such powers on mere belief that the law is being violated or merely to establish that it has not. FTC v. Standard American, Inc., 306 F. 2d 231, 234-235 (3d Cir. 1962), and cases cited. See generally Yankee Milk, 372 Mass. at 364-365.

And in this Commonwealth the test under § 6(1)(b) of c. 93A is "simply one of relevance." Yankee Milk, 372 Mass. at 356. The burden of showing good cause to set aside or modify the C.I.D. was on Buick. Id. at 358-359. See G. L. c. 93A, § 6(7). Viewing the record as a whole, we discern no error of law or abuse of discretion by the Superior Court Judge.

The constitutional issue raised by Buick along similar lines is devoid of merit. The leading case of United States v. Morton Salt Co., 338 U.S. at 652, fully disposes of this contention. Moreover, the opportunity for immediate review by a Judge pursuant to § 6(7) provides additional protection against the invasion of any constitutional rights. In any event, even if there was some force to Buick's allegations as initially presented in the Superior Court, the Judge, after carefully considering the C.I.D., reduced its scope. See Finance Commn. of Boston v. McGrath, 343 Mass. 754, 764-766 (1962). It cannot now be said that the C.I.D., as modified, was too indefinite, exceeded reasonable limits, or was "plainly irrelevant" (see id. at 761) to the public interest sought to be protected. See Yankee Milk, 372 Mass. at 360-361 & n.8. Compare Finance Commn. of Boston v. McGrath, 343 Mass. at 766-768.

3. All the other issues raised by Buick have been decided adversely to it in Yankee Milk, supra.

Appeal ...


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