Reply Brief — State Mutual Life Assurance Co. of America v. Andersen

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76-1420

STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA,

CITIZENS MUTUAL INSURANCE COMPANY, WORCESTER

MUTUAL FIRE INSURANCE COMPANY and THE BEACON

MUTUAL INDEMNITY COMPANY,

Petitioners,

Ve

ARTHUR ANDERSEN & CO., HERMAN L. MECKLER and EMPIRE

NATIONAL BANK,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITIONERS' REPLY MEMORANDUM

George A. Katz

Douglas S. Liebhafsky

Michael W. Schwartz

Counsel for Petitioners

299 Park Avenue,

New York, New York 10017

Tel. No.: (212) 371-9200

Wachtell, Lipton, Rosen & Katz

Of Counsel

April 21, 1977

i te agin iy Se OREN A Fae

Ee tne

,.

In the

‘ SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76-1420

STATE MUTUAL LIFE ASSURANCE COMPANY OF

AMERICA, et al.,

Petitioners,

Ve

ARTHUR ANDERSEN & C©O., et al.,

Respondents.

PETITIONERS’ REPLY MEMORANDUM

While respondents Arthur Andersen & ©. and

Berman L. Meckler, in their joint Brief in Opposition

to the Petition, cite this Court's recent decision in

Kerr v. United States District Court, 426 U.S. 394

(1976), they fail to cite the crucial language on the

dispositive issue herein:

As a means of implementing the rule

that the writ [of mandamus] will issue

° se are t

° writ

no te means to atta

relief he desires, Roche v. Evaporated

Milk Assn., 319 U.S. [21], at rt (1943),

Cited in Petition, pp. 7-8] ....

(emphasis added)

In Kerr, this Court affirmed the Court of Appeals’

denial of the writ, specifically on the ground that

the petitioners there had available to them "an alter-

native, less extreme, path" to the relief they sought.

426 U.S. at 396.

It is even clearer here that the present re-

spondents are not in the position of having “no other

adequate means to attain the relief" they desire;

if an adverse verdict is returned, it may be reviewed

by the Court of Appeals in the usual course in a mat-

ter of weeks or months.* Thus Kerr, far from support-

ing the respondents' position, dictates the reversal

of the Court of Appeals’ action which petitioners seek.

* This fact also distinguishes other cases relied

on by respondents, including Thermtron Products, Inc.

vy. Hermansdorfer, 423 U.S. 336 (1976); Schlagenhauf v.

Holder, 379 U.S. 104 (1964); Beacon Theatres, Inc. v.

Westover, 359 U.S. 500 (1959); and United States v.

Newman, No. 76-3077 (2d Cir. Jan. 25, 1977), Since in

@ach of these cases, regular appellate review of the

trial judge's challenged action was either totally

unavailable or available only far in the future. _

Respondent Empire National Bank, in its Brief in

Opposition, makes various speculative claims that it

will be “prejudiced” if the Court of Appeals is re-

versed. These assertions are entitled to no weight

at all in the present posture of the case. For they

are premised on the inadmissible assumption that the

trial judge — who has lived with this jury during

Six-and-one-half months of trial — will not couch

the proposed five-sixths charge in appropriate lang-

uage to prevent confusion or "prejudice."* Although

the fact my be obvious, it bears emphasis that the

charge has not yet been given: therefore no-one —

not respondents, not the Court of Appeals** — knows

exactly what the trial judge will say.

This Court has expressed its confidence in the

ability of District Judges to gauge the impact of a

* The trial judge has specifically indicated on the

record his awareness of the need to couch the charge

in non="coercive" language. See Trial Tr., p. 14123

(in part II of the Appendix to Petitioners' Motion

for Expedited Consideration).

** The Court of Appeal's vituperative statement that

the trial judge proposes to adopt an “expedient” to

“extract a verdict at any cost" — seized on by re-

spondents in their Briefs — thus simply has no

-3-

charge on a jury, and its doubts about the wisdom of

a Court of Appeals substituting its judgment on such

a matter which is “certainly more evident in the living

scene than in a cold record” — even when the Court of

Appeals had acted on a full record after verdict.

United States v. Bayer, 331 U.S. 532, 536-37 (1947);

see United States v. Park, 421 U.S. 658, 674-76 (1975);

cf. Illinois v. Somerville, 410 U.S. 458, 462-64

(1973). A fortiori, the Court of Appeals’ intrusion

into an as-yet uncompleted trial here, to strike down

an as-yet undelivered charge, cannot be justified.

This Court, in the exercise of its Supervisory

powers over the inferior federal courts, and to pro-

tect its own jurisdiction in this case (see Petition,

p. 10), must act now to confine the Court of Appeals

to its very limited jurisdiction under 28 U.S.C.

§ 165l1(a) by reversing forthwith that Court's hasty

and unjustifiable issuance of the extraordinary writ

of mandamus.

Respectfully submitted,

George A. Katz

Douglas S. Liebhafsky

Michael W. Schwartz

Counsel for Petitioners

Office & P. O. Address

299 Park Avenue,

New York, New York 10017

Tel. No.: (212) 371-9200

Wachtell, Lipton, Rosen & Katz

Of Counsel

April 21, 1977