# Reply Brief — State Mutual Life Assurance Co. of America v. Andersen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1538%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1977 - **Citation:** 430 U.S. 982 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1538%3A5. Public record. Not legal advice.