JAMES P. KARTELL, M.D., ET AL., PLAINTIFFS, APPELLANTS,

v.

BLUE SHIELD OF MASSACHUSETTS, INC., AND BLUE CROSS OF MASSACHUSETTS, INC., DEFENDANTS, APPELLEES

In so holding, the court rejected several arguments based upon statutory construction, and failed to consider the implication, vis-a-vis the existence of state compulsion, of the conceded fact that for many years Blue Shield had allowed balance billing to high income subscribers, cf. Massachusetts Med. Serv. v. Commissioner, 1962, 344 Mass. 335, 338, 182 N.E. 2d 298, and that the change was self-generated.

Resolution of these complex questions of state law presents serious difficulties. This is not to say, particularly where the ultimate issue is a federal one, that we should not do so. See Propper v. Clark, 1949, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed.

1480. On the other hand, even here our obligation is not absolute. See, e. g., Colorado River Water Cons. Dist. v. United States, 1976, 424 U.S. 800, 813-17, 96 S.Ct. 1236, 47 L.Ed.2d 483. We are informed that there are presently pending before the Massachusetts Supreme Judicial Court consolidated class actions seeking to raise several aspects of Blue Shield’s relationship with participating physicians, including the ban on balance billing. Nelson v. Blue Shield of Mass., Inc. and Massachusetts Fed’n of Physicians & Dentists, Inc. v. Blue Shield of Mass., Inc., No.

1497. Since an opinion in these cases may substantially, perhaps even fully, answer certain questions of state law in a way that will permit easy answers, relatively speaking, to the federal ones, this has great appeal.4 Especially if by any chance the proper interpretation of state law is such that a comprehensive health scheme affecting a majority of the public must be faulted, it would be better that the state court be the one to make it, or, conversely, to reject it.

In this circumstance we could take advantage of the Supreme Judicial Court’s Rule 3:21, and certify questions, including, in that court’s discretion, very general ones. See, e. g., Baird v. Attorney General, 1977 Mass.Adv.Sh. 96, 360 N.E. 2d 288. However, in view of the cases that are already pending before it, in the interest of saving time and procedures in the long run, we prefer to consider simple abstention at this time.

In Colorado River Water Cons. Dist. v. United States, ante, the Court defined three limited categories of cases where “important countervailing interests” of federalism make abstention proper.

First, abstention is appropriate “in cases presenting a federal constitutional question which might be mooted or presented in a different posture by a state court determination of pertinent state law. . . . ” 424 U.S. at 814, 96 S.Ct. at 1244, quoting County of Allegheny v. Frank Mashuda Co., 1959, 360 U.S. 185, 189, 79 S.Ct. 1060, 3 L.Ed.2d 1163. The second category, and the one most applicable here, allows abstention, “where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, [79 S.Ct. 1070, 3 L.Ed.2d 1058] (1959) . . . Kaiser Steel Corp. v.

W. S. Ranch Co., 391 U.S. 593, [88 S.Ct. 1753, 20 L.Ed.2d 835] (1968).

In some cases, however, the state question itself need not be determinative of state policy. It is enough that the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern . . . Burford v. Sun Oil Co., 319 U.S. 315, [63 S.Ct. 1089, 87 L.Ed. 1424] (1943); . Alabama Pub. Serv. Comm’n v. Southern R. Co., [341 U.S. 341 [71 S.Ct. 762, 95 L.Ed. 1002] (1941)].” 424 U.S. at 814, 96 S.Ct. at 1244.

Finally, abstention may also be appropriate under the doctrine of equitable restraint of Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, where federal jurisdiction is invoked to enjoin a state criminal prosecution or other state enforcement proceeding.5 See 424 U.S. at 816-17, 96 S.Ct. 1236. Under the second category of abstention represented by the leading case, Louisiana Power & Light Co. v. City of Thibodaux, ante, the exercise of federal jurisdiction is not denied, but merely deferred pending a definitive resolution of the difficult state law questions involved by the state courts. See id., 27 n. 2, 30-31; Kaiser Steel Corp., ante.

It is true that if we abstain without certifying, plaintiffs themselves are not personally present in the pending state court proceedings. We may assume, however, that their positions, so far as relevant, are well represented and will not be neglected by the court. Moreover, were we to certify questions, unless the Massachusetts court were to delay its pending proceedings plaintiffs presumably will find themselves faced with a decision in the pending cases before they are personally reached for hearing in any event.

Simple abstention will avoid unnecessary friction and possibly serious consequences to state policy “whose importance transcends the results in the case ... at bar.” Colorado River, ante, at 814. Indeed, this seems a clearer case for it than many earlier ones. See, e. g., Kaiser Steel Corp., ante, (water rights); Thibodaux, ante, (municipality’s power of eminent domain); Naylor v. Case & McGrath, Inc., 2 Cir., 1978, 585 F. 2d 557, 564-65 (standing to sue under state Unfair Trade Practices Act); Construction Aggregates Corp. v. Rivera de Vicenty, 1 Cir., 1978, 573 F. 2d 86, 96 (Puerto Rico workmen’s compensation rate making process); Druker v. Sullivan, 1 Cir., 1972, 458 F. 2d 1272 (city’s authority to impose rent control); Allegheny Airlines, Inc. v. Pennsylvania Pub. Util. Comm'n, 3 Cir., 1972, 465 F. 2d 237, cert. denied, 410 U.S. 943, 93 S.Ct. 1367, 35 L.Ed.2d 609 (state regulations governing termination of intrastate air service); Dome Condominium Ass’n v. Goldenberg, S.D.Fla., 1977, 442 F.Supp. 438 (state regulation of condominium development); Meicler v. Aetna Cas. & Sur. Co., S.D.Tex., 1974, 372 F.Supp. 509 (insurance risk reclassification).

The judgment dismissing the complaint is vacated. The case is remanded to the district court with instructions to retain jurisdiction and to abstain pending resolution of state law questions by the Massachusetts courts. We leave it to the district court to determine whether the decision of the Supreme Judicial Court in the pending cases, when rendered, provides sufficient guidance, or whether further state proceedings of some kind may be required. In this connection the district court should permit the parties to be heard on the alternative of certifying, not only as to the form of the particular questions, but as to the record to be made to permit their full consideration.

COFFIN, Chief Judge (dubitante).

While I share the court’s desire to defer to the Massachusetts courts for all the help we can get, and feel its resolution makes sense, I confess to some uneasiness about our privilege as an appellate court simply to abstain when the district court has not seen fit to do so.

My doubts stem from what I assume is the continuing vitality of Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943), that, absent exceptional circumstances of a recognized nature, a federal court is not permitted to deny litigants a resolution of their problems “merely because the answers to the questions of state law are difficult or uncertain or have not yet been given by the highest court of the state”. Id. at 234-35, 64 S.Ct. at 11. 1A Moore’s Federal Practice, 10.203 at 2135 (2d ed. 1978).

Moreover, Meredith was a diversity case, while here the ultimate issue is one of exclusive federal jurisdiction, antitrust law, a factor which may “raise the level of justification for abstention.” Colorado River Water Conservation District v. United States, 424 U.S. 800, 815 n. 21, 96 S.Ct. 1236, 1245, 47 L.Ed.2d 483 (1976).

The court concludes, however, that this case possesses the exceptional character of the second category of abstention cases recognized in Colorado River Water Conservation District v. United States, supra, 424 U.S. at 814-15, 96 S.Ct. 1236. I hope the court is correct. But L question whether, even though litigation is and was at the outset of the federal suit pending in the state court, any question was presented there which is likely to be significant in resolving the federal question before us. The court in its footnote 4 cites to a brief which raises the issue “whether Blue Shield’s refusal to compensate subscribers for nonparticipating services, except in emergencies, is legislatively dictated” and whether agreements escape being unfair contracts of adhesion because of the compulsion of statutes. I have no judgment on this, except that my reading of the Massachusetts Superior Court opinion suggests instead that the relevant issue is whether the anticompetitive conduct is “permitted” and not whether it is “compelled” by state law. M.G.L. ch. 93A, § 3(l)(a).

If there is, in the pending state litigation, a state law question which bears on the federal case, Colorado River requires that it bear on “policy problems of substantial public import whose importance transcends the result in the case at bar.” 424 U.S. at 814, 96 S.Ct. at 1244. This is a delphic formula. I am not sure that the instant case measures up. It is true that regulating the amounts of medical and hospital bills is an important function. But the precise question whether Massachusetts law requires, or authorizes or forbids any official to require that there be no balance billing does not pose a fundamental question of state power such as is contemplated by Colorado River and the cases it invokes.

If no such basic policy problem is implicated, I suspect that the other basis for this kind of abstention is also missing — the prospect that federal review here and in similar cases “would be disruptive of state efforts to establish a coherent policy”. Id. at 814, 96 S.Ct. at 1245. The result of federal decision here would be either that the ban on balance billing is or is not a violation of the antitrust laws. Once the answer is known, state policy can be as coherent as it wishes to be.

The court’s opinion would first require the district court to abstain, but would leave open the possibility of certifying. This has the merit of allowing the district court to perfect the record before questions are certified. But even though the court deferred certification “in the interest of saving time and procedures”, such deferment threatens, if decision on pending state cases proves unhelpful, to involve a needless delay. I would immediately certify, with no qualms about the legal responsibility of so doing. Lehman Bros. v. Schein, 416 U.S. 386, 94 S.Ct. 568, 38 L.Ed.2d 467 (1974).

This would start the wheels in motion. If, before decision on the certified questions were forthcoming, decisions on pending Massachusetts cases resolved any such questions, they need not be addressed again. And if, in the process of considering the questions certified the Massachusetts court finds the record to be inadequate, I would see no reason why it could not require the record to be supplemented as might be necessary.

. On the other hand, construction of 15 U.S.C. § 1013(b) withholding from the protection of the McCarran-Ferguson Act, ante, “any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation,” see generally St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 98 S.Ct. 2923, 57 L.Ed.2d 932 (U.S., 1978), aff'g 1 Cir., 1977, 555 F. 2d 3, is, of course, a matter for us to decide.

. It is, of course, axiomatic that agreements to establish maximum prices stand no better than those to fix mínimums. Albrecht v. Herald Co., 1968, 390 U.S. 145, 152-53, 88 S.Ct. 869, 19 L.Ed.2d 998; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 1951, 340 U.S. 211, 213, 71 S.Ct. 259, 95 L.Ed. 219.

. The court thus did not reach defendants’ alternate claim of exemption under the McCarran-Ferguson Act.

. Many procedural attacks are made on the decision of the superior court, but, if these fail, the Supreme Judicial Court is presented with the question whether Blue Shield’s refusal to compensate subscribers for nonparticipating services, except in emergencies, is legislatively dictated (Blue Shield S.J.C. brief, 25, n.); whether Blue Shield is engaged in “trade or commerce” (Id., 17, 54 et seq.), and whether the agreements are “contract[s] of adhesion, containing various unfair and oppressive provisions,” (Id., 10) or cannot be such because of the statutory provisions. (Id., 62).

. In arguing against abstention, plaintiffs seek to rely on Vendo Co. v. Lektro-Vend Corp., 1977, 433 U.S. 623, 97 S.Ct. 2881, 53 L.Ed.2d 1009 and Miller v. Granados, 5 Cir., 1976, 529 F. 2d 393. They are not helpful. In those cases, both federal antitrust actions, abstention under the Younger doctrine was unsuccessfully urged on the ground that there were civil actions pending in the state courts involving the same subject matter. These cases do not suggest that abstention may not be justified in an antitrust action where the requirements of Colorado River’s other categories are satisfied. See Puerto Rico Int’l Airlines v. Silva Recio, 1 Cir., 1975, 520 F. 2d 1342, 1344-45 n. 4; cl California New Motor Veh. Bd. v. Orrin W. Fox Co., - U.S. -, -, 99 S.Ct. 403, 58 L.Ed.2d 361 (1978) (abstention in federal antitrust action not warranted because no ambiguity in state law); Mach-Tronics, Inc. v. Zirpoli, 9 Cir., 1963, 316 F. 2d 820 (no need to determine questions of state law); Schenley Ind., Inc. v. New Jersey Wine & Spirit Whole. Ass’n, D.N.J., 1967, 272 F.Supp. 872 (same).

Moreover, the holding in Vendo Co., ante, that section 16 of the Clayton Act generally does not provide an express exception to the Anti-Injunction Act, 28 U.S.C. § 2283, so as to allow a federal antitrust court to enjoin a state civil action, suggests that considerations of federalism, which underlie both the Anti-Injunction Act and the abstention doctrine, have force even in the antitrust field. See also Parker v. Brown, 1943, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315.