Petition — Blue Cross of Western Pennsylvania v. Marsh
Supreme Court brief1977
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IN THE
upreme Court, U. S.
FILED
OCT 12 1977
Supreme Court of the United States 2
OCTOBER TERM, 1977
BLUE CROSS OF WESTERN PENNSYLVANIA,
a non-profit Corporation,
Petitioner
v.
HONORABLE RABE F. MARSH,
United States District Judge,
Nominal Respondent
(ALMA COLES, an individual),
| Real Party In Interest-Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
JOSEPH FRIEDMAN
JOHN F. PERRY
SPRINGER & PERRY
Suite 2300
301 Fifth Avenue Building
Pittsburgh, PA 15222
Attorneys for Petitioner
Blue Cross of Western Pennsylvania
SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH,
PA. 15219
INDEX
PAGE
r ae 1
, ̃ ...... 2
r . halal hidkelendi 3
Statutes and Federal Rules Involved .......................... 3
e i esstentnneotsnanteh 4
I. Proceedings in the District Court 4
II. Proceedings in the Court of Appeals 5
Reasons for Granting the Wrilt 7
I. The Decision of the Court of Appeals Con-
stitutes an Important Question of Federal
Law Which has Not Been, but Should be,
e 7
II. The Decision of the Court of Appeals is in
Conflict with the Decision of Another Court
of Appeals on the Same Matten 11
66 14
Appendix A — Order of the United States District
Court for the Western District of Pennsylvania
dated December 17, 1976 u la
Appendix B — Letter of United States District
Judge pursuant to Rule 21, Federal Rules of
Appellate Procedure dated March 7, 1977 4a
Appendix C — Opinion of the United States Court
K sree for the Third Circuit filed July 28, *
. ² AAA ¼ (
Appendix D — Order of the United States Court of
Appeals for the Third Circuit and Writ of Man-
damus filed July 28, 1977 ...... .... . . . . . . 14a
Appendix E — Pertinent Text of Statute Involved. 17a
Appendix F — Pertinent Text of Federal Rules In-
—— ̃ —-—[r. —— 18a
Appendix G — Excerpts from Oral Deposition of
Real P in Interest—Respondent taken Se
tember 27, 1976, October 1, 1976, October 5,
1976 and October 11, 1076. . . . . . . . .. 22a
Citations.
PAGE
Appendix H — Opinion and Order of the United
States District Court for the Western District
of Pennsylvania dated February 4, 19777 39a
Appendix I — Orders of the United States District
Court for the Western District of Pennsylvania
dated August 3, 1977 and September 6, 1977 .... 44a
Appendix J — Opinion of the United States Court
of Appeals for the Second Circuit in Weight
Watchers of Philadelphia, Inc. v. Weight
Watchers, Int., Inc., 455 F.2d 770 (2d Cir.
c 46a
Appendix J-1 — Order of the United States District
Court for the Eastern District of New York
dated September 28, 1971, withdrawn Septem-
ber 28, 1971 and reinstated October 1, 1971 55a
Appendix J-2 — Order of the United States District
Court for the Eastern District of New York
dated December 14, 1971
Appendix K — Opinion of the United States District
Court for the Eastern District of Louisiana in
Waldo v. Lakeshore Estates, Inc., 433 F.Supp.
782 (E.D. La. 1977)
— 2 —— ůꝛũ ę ꝶ 333
CITATIONS
CASES
American Finance System, Inc. v. Pickrel, 18 F.R.
dk OS SC, |} ee 10
Avco Corp. v. Aero Lodge, 390 U.S. 557 (1968) 13
Bingler v. Johnson, 394 U.S. 741 (1969) ..........0..000.... 13
Brown v. Gilette Co., 21 F.R.Serv.2d 372 (D. Mass.
% . PES A 9
Chrapliwy v. Uniroyal, Inc., 12 E. P. D. 711,055 (N. D.
r . 9
DiCostanzo v. Chrysler Corp., 15 F. R. Serv. 2d 1248
,, . 9
La Buy v. Howes Leather Co., 352 U.S. 249 (1957) 10
Local 374 — 4 Pension Fund Trust v.
Continental Illinois National Bank and Trust
Co. of Chicago, 57 F.R.D. 1 (N. D. Il. 1972) ...... 9
iii
Citations.
CASES PAGE
Merit Motors, Inc. v. Chrysler Corp. and National
Automobile Dealers Association, C.A. No. 2000-
70, filed December 20, 1972 (D.D.C. 1972) ........ 9
Northeastern National Bank v. United States, 387
e 13
Rodgers v. United States Steel 175 508 F. 2d 152
(3d Cir. 1975) cert. denied, 423 U.S. 832 (1975) 8
Sayre v. Abraham Lincoln Federal Savings & Loan
Association, 65 F.R.D. 379 (E.D. Pa. 1974) 9
Schlagenhauf v. Holden, 379 U.S. 104 (1964). 10
United States v. Muniz, 374 U.S. 150 (1963) 13
United States v. O'Malley, 383 U.S. 627 (1966) 13
Vance v. Fashion Two Twenty, Inc., 16 F.R.Serv. 2d
e eitnilirtincninnens 90
Waldo v. Lakeshore Estates, Inc., 433 F.Supp. 782
n xxx 7, 10
Weight Watchers of * 24. Inc. v. Weight
Watchers Int., Inc., 455 F.2d 770 (2d Cir. 1972)
.. ̃˙ Nl—ꝗÄ..ZTTTT C 7, 11, 12
STATUTES
ey CIO cc scicinddaremesaiodssonnenhimnuimaaiin 2
FRE ee 3,17a
LI T... 4
RULES
Federal Rules of Civil Procedure:
IEEE RSE IEE REE: 3, 7, 9, 12, 13, 18a-21a
((( ( 3, 7, 8, 21a
Federal Rules of Appellate Procedure:
r . en 4a-5a
OTHER AUTHORITIES
Note, 88 Harv. L. Rev. 1911 (1975) 10
Note, “Devel ents in the Law — Class Actions“,
89 Harv. L. Rev. 1318, 1597-1604 (1976) 10
1 (pt. 2) J. Moore, Manual for Complex Litigation,
Part II — App. Para. 1.1t !! 7, 9, 10, 11
—— ee
—
IN THE
Supreme Court of the United States
OCTOBER TERM, 1977
1
BLUE CROSS OF WESTERN PENNSYLVANIA,
a non-profit Corporation,
Petitioner
v.
HONORABLE RABE F. MARSH,
United States District Judge,
Nominal Respondent
(ALMA COLES, an individual),
Real Party In Interest-Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
Petitioner prays that a writ of certiorari issue to
review the judgment of the United States Court of Ap-
peals for the Third Circuit entered on July 28, 1977.
OPINIONS BELOW
The Order of the United States District Court for
the Western District of Pennsylvania dated December
17, 1976, together with a letter written by the District
Judge dated March 7, 1977 setting forth the grounds
for entering said order are printed in Appendices A and
B hereto, respectively, (pp. la-5a),1 and both of which
Jurisdiction.
are unreported. The Opinion of the United States Court
of Appeals for the Third Circuit, filed on July 28, 1977,
pursuant to which said court of appeals issued a writ of
mandamus directing the acating of the said district
court order is printed in Appendix C hereto (pp. 6a-13a)
and is also as yet unreported.
JURISDICTION
The judgment of the court of appeals, consisting of
an Order and a Writ of Mandamus was entered on July
28, 1977 and is printed in Appendix D hereto (pp. 14a-
16a). The jurisdiction of this Court is invoked under 28
U.S.C. §1254(1).
1. Reference to pages of the Appendices hereto
shall be cited as Appendix 13 ).
— eed
statutes and Federal Rules Involved.
QUESTIONS PRESENTED
1. During the pendency of a class action, does a
United States District Court possess the power to enter
a protective order prohibiting certain communications
between a plaintiff class representative or her attorney
and certain third parties, including potential members
of the class and civi! rights organizations, in order to
prevent actual and potential abuses of the class action
device?
2. Where actual abuses of the class action device
have been demonstrated to a United States District
Judge, is it improper for a court of appeals to issue a
writ of mandamus against such district judge requiring
him to vacate a protective order prohibiting certain com-
munications during the pendency of a class action be-
tween plaintiff class representative or her attorney and
certain third parties, including potential members of the
class and civil rights organizations, in order to prevent
such actual abuses and certain potential abuses of the
class action device?
STATUTES AND FEDERAL RULES INVOLVED
The statute granting the court of appeals power to
issue the writ of mandamus directing a United States
District Judge to vacate a protective order is 28 U.S.C.
$1651(a), the text of which is printed in Appendix E
hereto (p. 17a). The rules which Petitioner contends
empowers a United States District Judge to enter a pro-
tective order such as the one at issue in the instant pro-
ceeding are Rules 83 and 23(d) of the Federal Rules of
Civil Procedure. These rules are printed in Appendix F
hereto (pp. 18a-21a).
Statement of the Case.
STATEMENT OF THE CASE
I. Proceedings in the District Court
Real Party In Interest-Respondent Alma Coles, a
black female, (Mrs. Coles”) commenced a civil action
in the United States District Court for the Western Dis-
trict of Pennsylvania by filing a Complaint against Peti-
tioner Blue Cross of Western Pennsylvania (“Blue
Cross”) on or about August 27, 1976. In her Complaint
Mrs. Coles alleged that Blue Cross discriminated against
her with respect to her employment in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e,
et seq. Mrs. Coles brought the action as a class action
seeking declaratory and injunctive relief for herself and
members of her putative class. On September 15, 1976,
Blue Cross noticed the taking of the oral deposition of
Mrs. Coles, pursuant to the applicable provisions of the
Federal Rules of Civil Procedure. Said oral deposition
commenced on September 27, 1976 and concluded on
October 11, 1976, taking place on six separate days. Dur-
ing the course of Mrs. Coles’ deposition, she testified
under oath that she (i) had contacted and would con-
tinue to’ contact present or former employees of Blue
Cross and certain other individuals who never had a re-
lationship with Blue Cross with the hope of interesting
them in participating in the suit; (ii) had contacted the
National Association for the Advancement of Colored
People and proposed to contact other organizations, in-
cluding other civil rights organizations, for the purpose
of enlisting their support including financial support to
partially defray litigation expenses; and (iii) had con-
tacted a radio programmer whom she hoped would help
in any way he could, possibly by providing advertising
for her case. Mrs. Coles admitted that her attorney was
ON ne 0 cman
Statement of the Case.
aware of, but did not seek to restrict, her efforts to com-
municate with the aforementioned persons and organi-
zations.2
In response to discovery of such circumstances, Blue
Cross filed a Motion for Protective Order on or about
October 14, 1976 and then filed an Amended Motion for
Protective Order with the district court on November 3,
1976, superseding the original motion. On December 17,
1976 the district court issued the protective order in dis-
pute herein (the “Protective Order“) which is repro-
duced in Appendix A hereto (pp. la-3a) as aforesaid.
On February 4, 1977 the district court issued an
Opinion and Order declining to treat the action as a class
action and postponing a final decision on the class action
issue until after the trial on the merits of Mrs. Coles’ in-
dividual civil rights claim.3
II. Proceedings in the Court of Appeals
On or about February 18, 1977 Mrs. Coles filed a
Petition for Writ of Mandamus/Prohibition And/Or Su-
pervisory Writ of Mandamus/Prohibition requesting,
inter alia, the court of appeals to order the district court
to vacate the Protective Order. After briefs were filed
and argument held, on July 28, 1977 the court of appeals
issued a writ of mandamus directing the district court to
vacate the Protective Order, which directive the district
2. Excerpts from Mrs. Coles’ oral deposition are
printed in Appendix G hereto (pp. 22a-38a).
3. The text of said Opinion and Order of February
4, 1977 is printed in Appendix H hereto (pp. 39a-43a).
Statement of the Case.
court promptly obeyed.‘ In the meantime, trial on the
merits of Mrs. Coles’ individual civil rights claim pro-
ceeded to conclusion in the district court, although no
decision on such trial has yet been rendered.5
4. Judge Marsh issued an Order on August 3, 1977
vacating the Order entered on December 17, 1976. Be-
cause he coincidentally entered two orders on December
17, 1976 in this case, Judge Marsh entered an Order on
September 6, 1977 clarifying the fact that he intended to
vacate only the Protective Order. Both the said August
3, 1977 and September 6, 1977 Orders are printed in Ap-
pendix I hereto (pp. 44a-45a).
5. Mrs Coles was discharged as an employee of
Blue Cross effective May 13, 1977 by reason of her un-
satisfactory performance and productivity. On July 11,
1977 Mrs. Coles filed a motion for a temporary restrain-
ing order seeking reinstatement to her position with Blue
Cross. After a hearing on her motion for a temporary
restraining order and a preliminary injunction hearing,
the district court denied Mrs. Coles’ request for pendente
lite relief for failure to make the requisite showing as to
irreparable injury.
Anns ee
—— — ́ — —
Reasons for Granting the Writ.
REASONS FOR GRANTING THE WRIT
This Petition raises substantial and important ques-
tions concerning the administration and proper conduct
of class actions at the district court level and the power
of district courts to prevent actual and potential abuses
of the class action device under Rules 83 and 23 of the
Federal Rules of Civil Procedure. This Court has not
passed upon such issue to date. Moreover, the Opinion
of the court of appeals below is in conflict with a decision
of the United States Court of Appeals for the Second
Circuit in Weight Watchers of Philadelphia, Inc. v.
Weight Watchers Int., Inc., reported at 455 F.2d 770 (2d
Cir. 1972), the text of which is printed in Appendix J
hereto (pp. 46a-54a), is also in conflict with a number of
cases at the district court level in other circuits, and is
particularly in conflict with the recent federal decision of
Waldo v. Lakeshore Estates Inc., reported at 433 F.Supp.
782 (E.D. La. 1977), the text of opinion of which is
printed in Appendix K hereto (pp. 60a-80a).
I. The Decision of the Court of Appeals Constitutes an
Important Question of Federal Law Which has Not
Been, but Should be, Settled by this Court
The Protective Order was entered after it was
demonstrated to the district court that Mrs. Coles was
attempting to recruit additional parties plaintiff and was
soliciting financial assistance to maintain the class ac-
tion. The substance of the Protective Order, which the
court of appeals ordered to be vacated by issuing its
writ of mandamus, was taken verbatim from 1 (pt. 2) J.
Moore, Manual For Complex Litigation, Part II — App.,
Para. 1.41 at 189, Sample Pre-trial Order No. 15, pre-
pared by a committee under the auspices of the Federal
Reasons for Granting the Writ.
Judicial Center. The court of appeals has thus rejected
the recommendations of the Manual for Complex Litiga-
tion on the grounds that the district court lacked the
power to enter such an order. The court of appeals spe-
cifically held at page 6 of its opinion as follows:
“We hold. . that the district court lacked power to
impose any restraint on communication for the pur-
pose of preventing the recruitment of additional
parties plaintiff or of the solicitation of financial
or other support to maintain the action.” (p. 12a)
The decision of the court of appeals was based upon
the authority of an earlier decision of the Third Circuit
in Rodgers v. United States Steel Corp., 508 F.2d 152
(3d Cir. 1975), cert. denied, 423 U.S. 832 (1975). Al-
though this Court denied a writ of certiorari to review
the Rodgers decision, it is respectfully submitted that it
is appropriate to grant a writ of certiorari in this case.
The Rodgers decision merely invalidated a local rule of
the United States District Court for the Western District
of Pennsylvania which prohibited any communication by
any of the parties or their counsel with any potential or
actual class member who was not a formal party to the
action until such time as an order may be entered by the
court approving the communication. The court of ap-
peals concluded that the local rule in question was out-
side the local rule-making authority granted to district
courts under Federal Rule 83.
In the instant case the Protective Order was not
premised on the local rule abrogated by the Rodgers
decision, but on the omnibus sentence of Rule 83 of the
Federal Rules of Civil Procedure, which provides that
“In all cases not provided for by rule, the district courts
may regulate their practice in any manner not inconsist-
—U—ä—äͤ ee ee
Reasons for Granting the Writ.
ent with these rules“ (p. 21a), as well as on Rule 23 it-
self which provides a district court with power to issue
rules in the conduct of class actions (pp. 18a-21a).
In holding that the district court lacked the power
to impose any restraint on communication for the pur-
pose of preventing the recruitment of additional parties
plaintiff or the solicitation of financial or other support
to maintain the action, the court of appeals concluded
that the admitted recruiting and soliciting activities of
Mrs. Coles® were not abuses of the class action device,
but merely violations of ethical norms traditionally ac-
cepted in the legal profession which make it improper, if
not criminal, for a layman or his attorney to excite the
interest of others in bringing suit or to accept money or
assistance in prosecuting or defending a suit. The court
of appeals below therefore held that there was no basis
for any protective order in the instant case (pp. 1la-13a).
The decision and reasoning of the court of appeals
below is not only diametrically opposed to the sugges-
tions set forth in the Manual For Complex Litigation,
but also to the decisions of numerous district courts
handed down over the last decade. See Brown v. Gillette
Co., 21 F.R.Serv. 2d 372 (D. Mass. 1975) ; DiCostanzo v.
Chrysler Corp., 15 F.R.Serv. 2d 1248 (E.D. Pa. 1972) ;
Sayre v. Abraham Lincoln Federal Savings d Loan Asso-
ciation, 65 F.R.D. 379 (E.D. Pa. 1974) ; Local 374 Bakery
Drivers Pension Fund Trust v. Continental Illinois Na-
tional Bank and Trust Co. of Chicago, 57 F.R.D. 1 (N.D.
III. 1972); Vance v. Fashion Two Twenty, Inc., 16
F.R.Serv. 2d 1513 (N.D. Ohio 1973) ; Chrapliwy v. Uni-
royal Inc., 12 E. P. D. 11,055 (N.D. Ind. 1976); Merit
6. See exce taken from Mrs. Coles’ deposition
printed in Appendix G hereto (pp. 22a-38a).
10
Reasons for Granting the Writ.
Motors, Inc. v. Chrysler Corp. and National Automobile
Dealers Assn., C.A. No. 2000-70, filed December 20, 1972
(D.D.C. 1972) ; American Finance System, Inc. v. Pickrel,
18 F.R.Serv.2d 292 (D.Md. 1974); and Waldo v. Lake-
shore Estates, Inc., supra.
Of particular interest in this regard is the well-
reasoned opinion of the United States District Court for
the Eastern District of Louisiana in the recent case of
Waldo v. Lakeshore Estates, supra.? That court upheld
both the validity and constitutionality of one of its local
rules which was also taken verbatim from the Manual
For Complex Litigation. A comparison of the Louisiana
district court’s opinion with the opinion of the Third
Circuit in the instant case particularly illustrates a com-
pletely opposite approach to the question of the extent
of the power of district courts to control actual and po-
tential abuses of the class action device, including actual
and potential unethical conduct. The text of the local
rule upheld by the court in Waldo and the order struck
down by the Third Circuit in the instant suit are vir-
tually identical.
It should also be noted that the Harvard Law Re-
view has discussed some of these vital issues at length
in a case Note at 88 Harv. L. Rev. 1911 (1975) and in
Note, Developments in the Law — Class Actions“, 89
Harv. L. Rev. 1318, 1597-1604 (1976).
This Honorable Court in the past has recognized the
importance of settling questions of federal law involving
the Federal Rules of Civil Procedure and powers granted
to federal courts thereunder. Schlagenhauf v. Holden,
379 U.S. 104 (1964) ; La Buy v. Howes Leather Co., 352
7. The text of the Waldo opinion is printed in Ap-
pendix K hereto (pp. 60a-80a).
— — —
——— ———
11
Reasons for Granting the Writ.
U.S. 249 (1957). It is therefore respectfully submitted
that it is appropriate for this Honorable Court to grant
a writ of certiorari in this case because of the involve-
ment herein of an important question of federal law
which has not been, but should be settled by this Honor-
able Court.
II. The Decision of the Court of Appeals is in
Conflict with the Decision of Another Court
of Appeals on the Same Matter
The court of appeals below has rendered a decision
in conflict with the decision of the United States Court
of Appeals for the Second Circuit in the same matter —
the power of district courts to regulate communications
of parties during the course of class actions. In Weight
Watchers of Philadelphia, Inc. v. Weight Watchers Int.,
Inc., supra, S the Second Circuit refused to issue a writ
of mandamus requiring a district court to vacate an
order which permitted, under limited circumstances,
communications between formal parties to a class action
and their attorneys and members of the class who were
not formal parties to the action. The district court be-
low in Weight Watchers entered an order in the form
suggested by the then current edition of the Manual For
Complex Litigation, Sample Pretrial Order 15, prohibit-
ing the formal parties from communicating with non-
party class members without court approval, and the dis-
trict court later modified such order by permitting lim-
ited communications in the form of contract negotiating
sessions initiated and requested only by the non-formal
party class members to take place under extremely lim-
8. The text of the opinion of the Second Circuit in
— eae is printed in Appendix J hereto (pp.
a-54 a)
12
Reasons for Granting the Writ.
ited circumstances and subject to specific conditions.’
In refusing to issue a writ of mandamus the Second Cir-
cuit held at 775 that the subject order “was well within
the wide range of discretion in the management of class
actions necessarily accorded the district judge by F.R.
Civ.P. 23(d)” (p. 54a).
It is submitted that the orders of the district court
in the Weight Watchers case were severely more restric-
tive then the Protective Order entered by the district
court in the case at bar. It is important to note that the
Weight Watchers orders, while prohibiting communica-
tions with non-party class members, did not expressly
permit any communications protected by a constitutional
right, whereas the Protective Order in the case at bar
expressly permits, inter alia, any communication pro-
tected by any constitutional right. The Second Circuit in
Weight Watchers has held that such a protective order
may be entered pursuant to the power granted by Rule
23(d) of the Federal Rules of Civil Procedure, while the
Third Circuit in the instant case at page 6, footnote 2 of
its Opinion, (p. IIa), has decided precisely the opposite
9. Attorneys for Blue Cross have endeavored to
obtain copies of the orders entered by the district court
in the Weight Watchers case first by contacting the of-
fice of the Clerk of Courts for the United States Dis-
trict Court for the Eastern District of New York, whose
office informed attorneys for Blue Cross that although
the relevant docket reflected entries noting the entry of
such orders, the orders themselves were deposited in
their archives and were difficult to retrieve. Attorneys
for Blue Cross therefore contacted Michael Malina, Es-
quire of the law firm of Kaye, Scholer, Fiernan, Hays &
Handler, counsel for defendant-appellee in the Weight
Watchers case. The orders printed in Appendices J-1 and
J-2 (pp. 55a-59a) were supplied by Mr. Malina as the
exact text of the orders in question entered by the dis-
trict court.
—— — —
13
Reasons for Granting the Writ.
— that Rule 23 provides no source of power for the im-
position of such an order.
In the past, this Honorable Court has held it proper
to issue writs of certiorari to resolve conflicts in deci-
sions among the circuits. United States v. Muniz, 374
U.S. 150 (1963); Bingler v. Johnson, 394 U.S. 741
(1969) ; United States v. O'Malley, 383 U.S. 627 (1966) ;
Avco Corp. v. Aero Lodge, 390 U.S. 557 (1968) ; North-
eastern National Bank v. United States, 387 US. 213
(1967). It is therefore respectfully submitted that two
circuit courts of appeals have ruled inconsistently on
the same or similar issues, making it appropriate for a
writ of certiorari to issue for the Supreme Court of the
United States to review this important question of fed-
eral law.
14
Conclusion.
CONCLUSION
For the reasons aforesaid, it is respectfully prayed
that a writ of certiorari be granted to review the judg-
ment of the United States Court of Appeals for the Third
Circuit.
Respectfully submitted,
JOSEPH FRIEDMAN
JOHN F. PERRY
SPRINGER & PERRY
Suite 2300
301 Fifth Avenue Building
Pittsburgh, PA 15222
Attorneys for Petitioner
Blue Cross of Western Pennsylvania
hth. se —
Appendiæ A.
APPENDIX
Appendix A — Order of the United States District
Court for the Western District of Pennsylvania
Dated December 17, 1976
In THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALMA COLES, :
Plaintiff Civil Action
No. 76-1097
v.
BLUE CROSS OF WESTERN PENNSYLVANIA, | Class Action
Defendant ]
ORDER
AND Now, this 17th day of December, 1976, upon
motion of the Defendant, it is hereby
ORDERED, that Plaintiff, Alma Coles, and her attor-
ney, Clifford C. Cooper, Esquire, are prohibited directly
or indirectly, orally or in writing, from contacting, soli-
citing or communicating with any potential or actual
class member who is not a formal party to this suit, in-
cluding but not limited to Diane Bey, Lois Broadus,
Joyce Lang, Joyce Deas, Marlene Ramsey, Marcia Smith,
June Pickett, Judy Harris, Barbara Davis, the local
chapter of the NAACP, its officers, members and Board,
the Direct Action Coalition, the National Organization
of Women (N.O.W.) and Women in Urban Crises, for
the purposes of, but not limited to:
äœä—a—ñä6———— 22 —
2a 3a
Appendix A. | Appendix A.
a. Solicitation, directly or indirectly, of legal | e. Any communications protected by any con
representation of potential and actual class members ) stitutional right.
who are not formal parties to this action;
And further, in the foregoing three instances the person
b. Solicitation of fees and expenses and agree-
making the communication shall within five days after
ments to pay fees and expenses from potential and | such communication file with this Court a copy of such
actual class members who are not formal parties to communication, if in writing, or an accurate and sub-
the class action; stantially complete summary of the communication if
‘ e. Solicitation by Plaintiff and her co 1 to oral. The obligations and prohibitions of this Order are
the class action of requests by class members to opt ; not exclusive. All other ethical and legal obligations are
out of class actions under subparagraph (b) (3) of | unaffected by this Order.
Rule 23, Federal Rules of Civil Procedure; and |
2 1 BY THE COURT:
d. mmunications from counsel or party
which may tend to misrepresent the status, pur- RaBE MaksH, J.
poses and effects of the class action, and of any ac- United States District Judge
tual or potential court orders therein, which may |
create impressions tending, without cause, to reflect
adversely on any party, any counsel, this court, or
the administration of justice.
It is further Ordered that the following activities
are not prohibited by this Order:
a. Communications between Plaintiff’s attor-
ney and his client or a prospective client, who has
on the initiative of the client or prospective client
consulted with, employed or proposed to employ the ;
attorney;
b. Communications occurring in the regular
course of business or in the performance of the du-
ties of a public office or agency (such as the Attor-
ney General) which do not have the effect of solicit-
ing representation by counsel or misrepresenting
the status, purposes or effect of the action and
orders therein; or
— —u——— ——r———— pe eee ee a —
4a
Appendix B.
Appendix B — Letter of United States District Judge
Pursuant to Rule 21, Federal Rules of Appellate
Procedure dated March 7, 1977
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF PENNSYLVANIA
837 UNITED STATES COURTHOUSE
PITTSBURGH, PA. 15219
CHAMBERS OF
RABE F. MARSH, JUDGE -
March 7, 1977
United States Court of Appeals
21400 United States Courthouse
Independence Mall West
601 Market Street
Philadelphia, Pa. 19106
Re: Alma Coles, Petitioner vs.
Hon. Rabe F. Marsh, etc.
No. 77-1235
(D.C. Civil No. 76-1097)
Dear Mr. Quinn:
I have been named as respondent in the above cap-
tioned action which concerns a protective order entered
on December 17, 1976. Ne opinion was issued at that
time, and the oral argument of December 16 was not
recorded (a court reporter was present at the beginning
of the argument, but the parties chose to proceed with-
out a record). Therefore, in an effort to facilitate re-
view, I believe I should advise the Court that the pro-
—— — —Eꝶʒ——
— —— —— ů — lt cles
5a
Appendix B.
tective order of December 17 was entered after thorough
consideration of the following:
Defendant’s Amended Motion for a Protective
Order and plaintiff’s Answer thereto;
Portions of the deposition of plaintiff Alma
Coles as submitted by defendant, specifically: Vol.
I, pp. 187-198; Vol. III, p. 91; Vol. IV, pp. 71-75; Vol.
VI, pp. 115-116, 154-160;
Plaintiff’s failure to present any evidence in
mitigation of the admitted efforts by the plaintiff,
since the filing of the complaint, to recruit addi-
tional parties for the class action;
The decision in Rodgers v. United States Steel
Corporation, 508 F. 2d 152 (3rd Cir. 1975);
The Manual for Complex Litigation, Part I,
$ 1.41, Preventing Potential Abuse of Class Action;
and Part II, Appendix, S 1.41, Sample Pretrial Order
No. 15;
A law review case note submitted by the plain-
tiff (88 Harv.L. Rev. 1911 (1975) ).
Having offered this information, I wish to advise
you, pursuant to Rule 21(b) of the Federal Rules of
Appellate Procedure, that I do not desire to appear fur-
ther in the proceeding.
Sincerely,
RABE F. MARSH
6a
Appendix C.
Appendix C — Opinion of the United States Court of
Appeals for the Third Circuit Dated July 28, 1977
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 77-1235
ALMA COLES,
Petitioner
v.
HONORABLE RABE F. MARSH,
United States District Judge,
Nominal Respondent
BLUE CROSS OF WESTERN PENNSYLVANIA,
Respondent
(D.C. Civil No. 76-1097 )
ON PETITION FOR A WRIT OF MANDAMUS/PROHIBITION
AND/OR SUPERVISORY WRIT OF MANDAMUS/PROHIBITION
FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
Argued May 5, 1977
Before SEITZ, Chief Judge, ROSENN, Circuit Judge, and
Log, District Judge“.
Joseph S. Lord, III, Chief Judge, United States
District Court for the Eastern District of Pennsylvania,
sitting by designation.
——— . pꝛE
inh dentin
7a
Appendix C.
Clifford C. Cooper, Esquire
Suite 603 Grant Building
330 Grant Street
Pittsburgh, Pennsylvania 15219
Attorne for Petitioner
Joseph Friedman, Esquire
John F. Perry, Esquire
Springer & Perry
Suite 2300—301 Fifth Avenue Bldg.
Pittsburgh, Pennsylvania 15222
Attorneys for Real Party in Interest
OPINION OF THE COURT
(Filed July 28, 1977)
Seitz, Chief Judge.
Petitioner is a plaintiff in the district court who
brought suit on behalf of herself and others similarly
situated against her employer, Blue Cross of Western
Pennsylvania, alleging that it was guilty of discrimina-
tory employment practices in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
The district judge, at defendant’s request, entered an
order on December 17, 1976 prohibiting certain commu-
nications between plaintiff or her attorney and certain
third parties including potential members of the class
and civil rights organizations. Plaintiff petitions this
court pursuant to 28 U.S.C. § 1651(a) to issue a writ of
mandamus directing the district court to vacate the
December 17 order among others.1
1. Petitioner also requested that the writ be issued
to vacate an order postponing a deposition and an order
setting a trial date. We conclude that these orders prop-
erly are not reviewable under the extraordinary writ.
Sa
Appendix C.
In Rodgers v. United States Steel Corp., 508 F.2d 152
(3d Cir.), cert. denied, 423 U.S. 832 (1975), we invali-
dated Rule 34(d) of the Local Rules of the District Court
for the Western District of Pennsylvania. That rule pro-
vides :
(d) No communication concerning such action shall
be made in any way by any of the parties thereto,
or by their counsel, with any potential or actual
class member, who is not a formal party to the ac-
tion, until such time as an order may be entered by
the Court approving the communication.
Rule 34(d) could be applied, and in Rodgers was ap-
plied, to regulate communication on the part of a plaintiff
seeking class action status or his attorney with third per-
sons including potential members of the class at a time
when class status had not been granted. Inquiring
whether this rule was within the rulemaking authority
granted by Fed. R. Civ. P. 83, we said that [wle must
take into account that the reason urged for applying
the prohibition on communication is, in the words of the
district court, the prevention of “barratry.” 508 F.2d at
163. We said that “‘[t]here is no general grant of legis-
lative authority to regulate the practice of law,” and
that [t] here is no federal common law offense of barra-
try.“ Concluding that it would be inconsistent with Fed.
R. Civ. P. 23 to prohibit communications designed to en-
courage common participation in a lawsuit, we held that
the Local Rule, at least to the extent that it permitted
prohibition of such communication prior to the class
determination, was outside of the authority granted
under Fed. R. Civ. P. 38.
Since in the instant case the December 17 order post-
dated our decision in Rodgers, it was premised not on
— ' — — |
—— ——— —äàĩƷäÿł ͤ l,. — —— 4 [4 ᷑ 2 MI Sow
9a
Appendix C.
Local Rule 34(d), which Rodgers abrogated and which
has not been amended subsequently, but on the omnibus
sentence of Fed. R. Civ. P. 83 which provides that [iln
all cases not provided for by rule, the district courts may
regulate their practice in any manner not inconsistent
with these rules.” Thus, as in Rodgers, we must consider
whether Rule 83 empowers the district court to prohibit
communications at a time prior to the class determina-
tion.
The substance of the December 17, order is taken
verbatim from 1 (pt. 2) J. Moore, Manual For Complex
Litigation, Part Il-App., Para. 1.41 at 189, Sample Pre-
trial Order No. 15, prepared by a committee under the
aegis of the Federal Judicial Center. The order provides:
ORDERED, that Plaintiff, Alma Coles, and her at-
torney, Clifford C. Cooper, Esquire, are prohibited
directly or indirectly, orally or in writing, from con-
tacting, soliciting or communicating with any po-
tential or actual class member who is not a formal
party to this suit, including but not limited to Diane
Bey, Lois Broadus, Joyce Lang, Joyce Deas, Marlene
Ramsey, Marcia Smith, June Pickett, Judy Harris,
Barbara Davis, the local chapter of the NAACP, its
officers, members and Board, the Direct Action
Coalition, the National Organization of Women
(N.O.W.) and Women in Urban Crises, for the
purposes of, but not limited to:
a. Solicitation, directly or indirectly, of legal
representation of potential and actual class mem-
bers who are not formal parties to this action;
b. Solicitation of fees and expenses and agree-
ments to pay fees and expenses from potential and
actual class members who are not formal parties to
the class action;
10a
Appendix C.
c. Solicitation by Plaintiff and her counsel to
the class action of requests by class members to
opt out of class actions under subparagraph (b) (3)
of Rule 23, Federal Rules of Civil Procedure; and
d. Communications from counsel or party
which may tend to misrepresent the status, pur-
poses and effects of the class action, and of any
actual or potential court orders therein, which may
create impressions tending without cause, to reflect
adversely on any party, any counsel, this court, or
the administration of justice.
It is further Ordered that the following activi-
ties are not prohibited by this Order:
a. Communications between Plaintiff’s attor-
ney and his client or a prospective client, who has
on the initiative of the client or prospective client
consulted with, employed or proposed to employ the
attorney;
b. Communications occurring in the regular
course of business or in the performance of the
duties of a public office or agency (such as the
Attorney General) which do not have the effect of
soliciting representation by counsel or misrepre-
senting the status, purposes or effect of the action
and orders therein; or
c. Any communications protected by any con-
stitutional right.
And further, in the foregoing three instances the
person making the communication shall within five
days after such communication file with this Court
a copy of such communications, if in writing, or an
accurate and substantially complete summary of the
—ͤ ü—ubVl— tat
22 —
11a
Appendiz C.
communication if oral. The obligations and prohibi-
tions of this Order are not exclusive. All other ethi-
cal and legal obligations are unaffected by this
Order.
The justification for this order is that it will
ameliorate potential abuses of the class action. The de-
fendant’s motion for the order was based upon plaintiff's
deposition testimony in which she indicated that she
had contacted and would continue to contact present or
former employees of Blue Cross with the hope of inter-
esting them in participating in the suit. Moreover, plain-
tiff had contacted the National Association for the Ad-
vancement of Colored People and proposed to contact
other organizations for the purpose of enlisting their
support including financial support to partially defray
litigation expenses. She further testified during the
deposition that she had contacted a radio programmer
whom she hoped would help in any way he could, possibly
by providing advertising. Plaintiff admitted that her
attorney was aware of, but did not seek to restrict her
efforts to communicate with the aforementioned persons
and organizations.
We do not accept the idea expressed by defendant
that plaintiff's activities represent abuses of the class
action device. Rather, plaintiff’s activities were directed
toward effectuating the purposes of Rule 23 by encour-
aging common participation in the litigation of her sex/
race discrimination claim.2 The activities were not
abuses of the class action device but, at least arguably,
violations of ethical norms traditionally accepted in the
2. This conclusion di of respondent’s argu-
ment that Rule 23(d) provides a source of power for the
imposition of the order apart from the power granted
under the omnibus sentence of Rule 83.
12a
Appendix C.
legal profession which make it improper, if not criminal,
for a layman or his attorney to excite the interest of
others in bringing suit or to accept money or assistance
in prosecuting or defending suit. We hold, on the author-
ity of Rodgers, supra, that the district court lacked
power to impose any restraint on communication for the
purpose of preventing the recruitment of additional
parties plaintiff or of the solicitation of financial or
other support to maintain the action.
Of the four provisions restricting communication
in the December 17 order, paragraphs a and b clearly are
concerned with potential abuses of ethical norms rather
than of the class action device and, thus, under Rodgers,
the district court lacked power to impose them. Para-
graphs c and d, on the other hand, conceivably could be
used to further the policies of Rule 23 in a proper case.
Neither is justified in this case, however.
Paragraph c is inapplicable since plaintiff brought
this action under (b) (2), not (b) (3). Moreover, there
is simply no basis in this record to believe that plaintiff
would be interested in such a course of conduct. Similar-
ly, with respect to paragraph d, defendant’s motion for
protective order is devoid of specific reference to possible
prejudice to it in defending the action which would re-
quire protection.
We hold that to the extent that the district court is
empowered under Rule 83 to restrict certain communica-
tions in order to prevent frustration of the policies of
Rule 23, it may not exercise the power without a specific
record showing by the moving party of the particular
abuses by which it is threatened. Moreover, the district
court must find that the showing provides a satisfactory
basis for relief and that the relief sought would be con-
13a
Appendix C.
sistent with the policies of Rule 23 giving explicit con-
sideration to the narrowest possible relief which would
protect the respective parties. Imposition of an order on
anything less than a clear showing of particularized
need removes it from the area of discretion unreview-
able by mandamus.
Because there is no basis for entering any protective
order in this case, we are not called upon to consider
whether a — order consistent with Rule 23
would comport Wit constitutional guarantees.
1
The writ will
to vacate its orde
granted directing the district court
December 17, 1976.3
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit.
3. We reject respondent’s contention that, under
the circumstances of this case, the equitable doctrine of
laches bars the issuance of the writ.
14a
Appendix D.
Appendix D — Order of the United States Court of
Appeals for the Third Circuit and Writ of
Mandamus filed July 28, 1977
UNITED STATES COURT OF APPEALS
For THE THIRD CIRCUIT
No. 77-1235
ALMA COLES,
Petitioner
vs.
HONORABLE RABE F. MARSH,
United States District Judge,
Nominal Respondent
BLUE CROSS OF WESTERN PENNSYLVANIA,
Respondent
Present: SErrz, Chief Judge and ROSENN, Circuit Judge
and Lorp, District Judge*
Upon consideration of the petition for Writ of Man-
damus, of the Answer of Respondent and the briefs.
It is ORDERED, ADJUDGED AND DECREED by this Court
that the prayer of the petition be and the same hereby
is granted and the Clerk of this Court is hereby directed
to issue the Writ of Mandamus in accordance with the
opinion of this Court.
By THE COURT,
CoLLINS J. SEITZ
Chief Judge
Dated: July 28, 1977
Joseph S. Lord, III, Chief Judge, United States District
Court for the Eastern District of Pennsylvania, sitting
by designation.
——
15a
Appendix D.
UNITED STATES COURT OF APPEALS
For THE THIRD CIRCUIT
No. 77-1235
ALMA COLES,
Petitioner
vs.
HONORABLE RABE F. MARSH,
United States District Judge,
Nominal Respondent
BLUE CROSS OF WESTERN PENNSYLVANIA
Respondent
WRIT OF MANDAMUS
UNITED STATES OF AMERICA, THIRD JUDICIAL CiRcuIT SS.
To the Honorable Rabe F. Marsh, Senior Judge of the
District Court for the Western District of Pennsylvania,
GREETINGS:
Whereas the Honorable Rabe F. Marsh by order
dated December 17, 1976, prohibited petitioner directly
or inairectly, orally or in writing, from contacting, solic-
iting or communicating with any potential or actual
class member who was not a party to the instant cause
of action including certain named potential members of
the class and civil rights organizations; and
Whereas Alma Coles, Petitioner in the above-en-
titled case in this United States Court of Appeals for the
16a
Appendix D.
Third Circuit, filed, on February 18, 1977, a petition for
a writ of mandamus to the Honorable Rabe F. Marsh,
requesting this Court to direct the said Honorable Rabe
F. Marsh to vacate his order of December 17, 1976, and
filed a supporting brief thereto; and
Whereas respondent herein has filed an answer and
supporting brief on March 4, 1977; and
Whereas after due deliberation thereon this Court
rendered its opinion and the same was filed this day, in
which this Court directed that the prayer of the petition
be granted; and
Whereas this Court, on this date has entered an
order directing the Clerk of this Court to issue a writ
of mandamus in accordance with the opinion of this
Court filed herein;
Now Therefore The Honorable Rabe F. Marsh is
Hereby Required and Directed, immediately after receipt
of this writ, and without unreasonable delay to vacate
his order of December 17, 1976. Costs are taxed against
respondent.
THOMAS P. QUINN
Clerk of the United States
Court of Appeals for the
Third Circuit
Dated: July 28, 1977
17a
Appendix E.
Appendix E — Pertinent Text of Statute Involved
THE ALL WRITS STATUTE
(28 U.S.C. 81651 (a))
§ 1651. Writs
(a) The Supreme Court and all courts established
by Act of Congress may issue all writs necessary or ap-
propriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.
18a
Appendix F.
Appendix F — Pertinent Text of Federal Rules Involved
FEDERAL RULES OF CIVIL PROCEDURE
Rule 23.
CLASS ACTIONS
(a) Prerequisites to a Class Action. One or more
members of a class may sue or be sued as representative
parties on behalf of all only if (1) the class is so numer-
ous that joinder of all members is impracticable, (2)
there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties
are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately
protect the interests of the class.
(b) Class Actions Maintainable. An action may be
maintained as a class action if the prerequisites of sub-
division (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or
against individual members of the class would create a
risk of
(A) inconsistent or varying adjudications with re-
spect to individual members of the class which would
establish incompatible standards of conduct for the
party opposing the class, or
(B) adjudications with respect to individual mem-
bers of the class which would as a practical matter be
dispositive of the interests of the other members not
parties to the adjudications or substantially impair or
impede their ability to protect their interests; or
19a
Appendiz F.
(2) the party opposing the class has acted or re-
fused to act on grounds generally applicable to the class,
thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class
as a whole; or
(3) the court finds that the questions of law or fact
common to the members of the class predominate over
any questions affecting only individual members, and
that a class action is superior to other available methods
for the fair and efficient adjudication of the controversy.
The matters pertinent to the findings include: (A) the
interest of members of the class in individually controll-
ing the prosecution or defense of separate actions; (B)
the extent and nature of any litigation concerning the
controversy already commenced by or against members
of the class; (C) the desirability or undesirability of
concentrating the litigation of the claims in the par-
ticular forum; (D) the difficulties likely to be encoun-
tered in the management of a class action.
(c) Determination by Order Whether Class Action
to be Maintained; Notice; Judgment; Actions Conducted
Partially as Class Actions.
(1) As soon as practicable after the commencement
of an action brought as a class action, the court shall
determine by order whether it is to be so maintained.
An order under this subdivision may be conditional, and
may be altered or amended before the decision on the
merits.
(2) In any class action maintained under sub-
division (b) (3), the court shall direct to the members
of the class the best notice practicable under the circum-
stances, including individual notice to all members who
can be identified through reasonable effort. The notice
20a
Appendiæ F.
shall advise each member that (A) the court will ex-
elude him from the class if he so requests by a specified
date; (B) the judgment, whether favorable or not, will
include all members who do not request exclusion; and
(C) any member who does not request exclusion may.
if he desires, enter an appearance through his counsel.
(3) The judgment in an action maintained as a
class action under subdivision (b) (1) or (b) (2),
whether or not favorable to the class, shall include and
describe those whom the court finds to be members of
the class. The judgment in an action maintained as a
class action under subdivision (b) (3), whether or not
favorable to the class, shall include and specify or de-
scribe those to whom the notice provided in subdivision
(c) (2) was directed, and who have not requested ex-
clusion, and whom the court finds to be members of the
class.
(4) When appropriate (A) an action may be
brought or maintained as a class action with respect to
particular issues, or (B) a class may be divided into
subclasses and each subclass treated as a class, and the
provisions of this rule shall then be construed and ap-
plied accordingly.
(d) Orders in Conduct of Actions. In the conduct
of actions to which this rule applies, the court may make
appropriate orders: (1) determining the course of pro-
ceedings or prescribing measures to prevent undue
repetition or complication in the presentation of evidence
or argument; (2) requiring, for the protection of the
members of the class or otherwise for the fair conduct
of the action, that notice be given in such manner as the
court may direct to some or all of the members of any
step in the action, or of the proposed extent of the judg-
N
21a
Appendiæ F.
ment, or of the opportunity of members to signify
whether they consider the representation fair and ade-
quate, to intervene and present claims or defenses, or
otherwise to come into the action; (3) imposing condi-
tions on the representative parties or on intervenors;
(4) requiring that the pleadings be amended to eliminate
therefrom allegations as to representation of absent
persons, and that the action proceed accordingly; (5)
dealing with similar procedural matters. The orders may
be combined with an order under Rule 16, and may be
altered or amended as may be desirable from time to
time.
(e) Dismissal or Compromise. A class action shall
not be dismissed or compromised without the approval
of the court, and notice of the proposed dismissal or
compromise shall be given to all members of the class
in such manner as the court directs.
Rule 83.
RULES By DISTRICT CouRTS
Each district court by action of a majority of the
judges thereof may from time to time make and amend
rules governing its practice not inconsistent with these
rules. Copies of rules and amendments so made by any
district court shall upon their promulgation be furnished
to the Supreme Court of the United States. In all cases
not provided for by rule, the district courts may regu-
late their practice in any manner not inconsistent with
these rules.
22a
Appendix G.
Appendix G — Excerpts from Oral Deposition of Real
Party in Interest — Respondent taken September
27, 1976, October 1, 1976, October 5, 1976
and October 11, 1976
VOLUME I—September 27, 1976
[187] By Mr. Friedman:
> ©
Or Po O PO
And what did she say to you?
She asked me had I heard what had happened?
And she went on to tell me what had happened.
Do you know anything about this termination?
What did she tell you?
She said that she had, the night before she left,
there was a sign-out sheet in her area—
What night was that; do you recall?
The night before she was fired. I can’t remember
the date.
It was in September of 76
Yes.
Within the last couple of weeks?
Yes, and she said that she had signed out a sheet
to indicate that she wouldn’t come directly into her
area but go into the area that she was assigned to.
And the other part that she gave me was so confus-
ing, I really could not speak to it, you know, clear
enough to discuss it with you.
Why would she call you?
Well, she and I were friends, and then she’s
[188] involved in the Class.
She is? What do you mean by that?
Mr. Cooper: She’s going to be—
Mr. Friedman: Just a minute. Let her answer.
— Pe
*
8 — a 8
. eS
Appendix G.
By Mr. Friedman:
> OPO Po Pp
> OP Y
What do you mean, she’s invoved in the Class?
Well, she was going to participate in the Class.
And when was the last time you discussed her
participation in the Class with Miss Bey, B-e-y;
when was the last time you discussed that?
We didn’t discuss it during the time that she had
called me.
Well, did you discuss it prior to that with her?
I had lunch with her the Tuesday before she was
terminated.
Is that also in September of 1976?
Yes.
And did you discuss her joining the Class at that
time?
I discussed it somewhat. She had discussed it with
me about handing in a letter of resignation, and
I was telling her, you know, why would she hand
in a letter [189] of resignation? And she said
that she was under a lot of stress from what had
gone on prior in her department and that she had
said that she wanted to go to graduate school. And
I had asked her, why not wait until the first of
the year to quit, because there’s three pays in Oc-
tober, and you get a bonus in November, and a
cost-of-living in December, so that was enough to
stay right there, if she wasn’t going to graduate
school until January. :
What did that have to do with her joining the
Class?
I don’t understand.
Well, you testified earlier that she was a possible
member of the Class Action.
Member of the Class Action?
24a
> © > ©
Appendix G.
It’s the Class Action we're talking abovt; is that
correct?
Yes, simply because she felt that she had been dis-
criminated against.
When is the last time you talked about her join-
ing the Class for this Class suit?
I talked to her briefly the Tuesday before she was
terminated, when we were out to lunch.
[190] Q. And what was the substance you discussed
A.
Q.
S > Orr rr Oo
involving joining the Class Action?
I can’t really recall the whole detail, but it was
not—our basic subject was not on joining the Class.
Well, what about joining the Class did you discuss
with her on that Tuesday?
I just told her that it seemed to be a pattern of
Blue Cross, when they get minorities, black women,
there's me kind of harrassing technique or de-
merr ig technique to get you into a position to
quit.
And did you ask her if she would like to join the
Class at that time, to join the Class suit with you?
At that time?
Yes.
No, I had asked her before.
When did you ask her to join the Class suit?
The date, I can’t remember.
Well, can you remember what month it was?
The month that I decided to file my suit.
Was that in August of 1976?
Can I ask my attorney?
I'd like to have your own knowledge, to the best
[191] of your recollection.
I filed the suit the end of August—I believe it was
the end of August.
And did you ask her to join you at that time?
Off O
OH OOO Pop
Appendiæ G.
We had discussed it, yes.
And what was the substance of your discussion?
I related that it was just discrimination against
black women.
Where did you discuss it with her?
Where did I discuss it with her?
Yes.
Over my home telephone.
At night?
Yes.
How often have you discussed it with her? How
often did you discuss the potentiality of her join-
ing your Class Action?
I think I discussed it with her on about three times.
During the month of August of 1976, or earlier?
Probably during the first part of August, 76.
And has Diane Bey joined your Class Action yet?
I don’t know if—what’s she’s doing as far as—
[192] Mr. Cooper: I don’t think she’s qualified to
answer that question. I don’t think she knows.
By Mr. Friedman:
Q.
A.
Q.
A.
If you know. If you don’t know, then you don’t know.
Do you know whether or not her name is on your
Complaint?
I signed my own Complaint by myself.
Is her name on your Complaint?
I didn’t see it when I signed it.
Mr. Friedman: Do you have a copy of the Com-
plaint that was filed?
Mr. Cooper: Sure.
Mr. Friedman: Can we get it out for a second?
Mr. Cooper: No, her name was not on it.
26a
Appendix G.
By Mr. Friedman:
OH ON
Is her name on it?
It says Alma Coles, Plaintiff, versus Blue Cross.
Is Diane Bey’s name on that?
Lou mean up here?
Anywhere in that document.
[193] A. No, it's not.
© Po
Is Diane Bey’s name on that document?
I couldn’t see it as I skimmed through it. I didn’t
see her name.
But it is your testimony that you recollect talking
with her in the last two weeks on Tuesday prior to
her termination of employment with Blue Cross re-
garding her joining this Class Action; is that cor-
rect?
We discussed, for a few minutes, as far as the Class
Action is concerned, but our main conversation dealt
with that she was saying that she was going to hand
in her resignation. And we had lunch together, and
we went down to Horne’s and walked around into
a couple other different places and just talked.
Have you discussed with any other potential Class
members joining this Class Action?
I don’t know if I should
Mr. Cooper: Answer the question
(Continuing) Answer it? Yes, I have talked to other
people.
Why don’t we just—can I just hear the names of
everyone who you feel is a potential Class member
whom you discussed this Class Action or possible
joining the [194] Class with?
I’ve discussed it with Joyce Lang, who was a pre-
vious employee.
> O&O OO
er OPH Pp OPOP OPOP OPO
Appendix G.
Joyce, L-a-y-n-e?
No, L-a-n-g, Joyce Lang.
And is she a black female?
Yes.
Anyone else?
She, in turn, was going to call some other people
who were previously employed here.
And when was the last time you talked to Joyce
Lang about joining the Class Action?
I talked to Joyce—it’s been awhile since I have
talked to Joyce. I can’t remember the date. I was out
one day, and she called here.
Was it during the month of August of ’76?
It might have been.
All right. Who else have you talked to about joining
in the Class Action?
I talked to Lois Broadus.
Is she a present employee of Blue Cross?
Yes.
One of your former co-workers who you mentioned
[195] previously?
Yes.
And is she a black female?
Yes.
And when is the last time you talked to Lois
Broadus about possibly joining the Class Action?
Last Saturday morning—not Saturday past, but
Saturday a week ago—that was on the 18th.
The 18th of September?
18th of September.
Okay. Very briefly, what was the substance of that
conversation?
Of trying to give the people, or the black females,
their names and home phone numbers to discuss
the Class—
28a
Appendix G.
Q. Did you ask her to do that for you?
A. —possible joining the Class.
Q. Did you ask—
A. Not for me. We do it in a joint effort.
Q. Well, did you ask her to do that on September 18,
1976?
A. Yes.
Q. And had you talked to her previously?
196) A. I had talked to her previously, yes.
We will get into that tomorrow.
Okay.
Anyone else you talked to about being a potential
Class member?
May I confer with my attorney?
No.
Oy OPO
Mr. Cooper: Well, just to the best of your
recollection.
By Mr. Friedman:
Q. Answer the question to the best of your recollection,
if you can remember.
A. Well, it’s not so much as remembering, but I don’t
want to cause anyone any problems as far as job
is concerned.
Mr. Cooper: Answer the question, if you can.
>
(Continuing) There was one girl—I can’t think of
her last name—we see one another at the bus stop,
one black—
A black women?
Yes.
. And what is her—
[197] A. Charlene is her first name.
Q. Isshea Blue Cross employee?
OO
Appendiæ G.
A. Ican’t think of her last name.
Q. Is there anybody else that you contacted or spoke
with as being a potential Class member, that you
can recollect at this time?
A. At this time, I can’t remember.
Q. All right. You can’t remember the stuff. We have,
so far, then, Diane Bey, Joyce Lang, and Lois
Broadus and a Charlene, who was an employee of
Blue Cross, whose last name you can’t recall?
A. Ican’t recall.
Q. Those are the four people who you discussed in the
last four months or so, and possibly prior, which
we haven’t gotten into, abount joining as a Class
member; is that correct?
A. Yes.
VOLUME IHL— OCTOBER 1, 1976
{91}Q. Do you want to add to the testimony some-
where?
A. Yes. At the meeting that I attended September 18
with the N.A.A.C.P., I had requested that they join
in with me on the class action suit, and that’s when
they had to take it to the Board for me to wait for
an answer.
Mr. Cooper: She just wanted to add that.
By Mr. Friedman:
Q. Thank you. And you haven’t had an answer yet?
A. I’m expecting one by the first of the week. The
Labor and Industry Committee chairman said that
he would recommend that they join.
* * * * * * - *
A
Q
A.
Q.
A
A
Q
A
Q
A
Q
A.
Q.
A.
Q
A
Q
A
Q
A
Appendiz G.
VOLUME IV—October 5, 1976
* * * * * * * *
71] husband?
I might talk to him twice. He works a different
shift than I do.
Who else did you talk to?
Occasionally I called my mother, occasionally an
aunt.
What’s her name?
Pinky.
Where does she live?
In Homewood.
Does she have a last name?
Cox.
Anyone else?
I have returned calls to people. They would call
me. Miss Lane would call me.
Who’s that?
That’s Joyce Lane that I had requested to join the
class.
You had requested Joyce Lane to enter?
From my home I had requested that. She had
called me here at work to ask me to meet her for
lunch, and I wasn’t at work. When I got back, the
note was on my desk that Miss Lane had called.
[72] Q. Is she a Blue Cross employee?
No. She works for another company, and I re-
turned the call.
What was the substance of your dealings with Miss
Lane again?
My dealings?
Your conversation with Miss Lane?
She wanted to know what time I was going to
lunch; but when I got back, the thing was on the
desk.
a *
*
* O
—
> © Po A ©
73
Oro W OP OPLPOPOP
3la
Appendix G.
What was the conversation that you had?
We didn’t have any conversation. I told her what
time I was going to lunch. She says it was too late.
What did you talk to her at home about the class
action?
About joining the class and see how many people
she would get to join the class.
And when did you do this?
I did this after I had filed my suit with Attorney
Cooper.
The present action, after the end of August of
1976?
Yes. This was later on after Attorney Cooper filed
my charge.
Q. After August of 1976?
Yes.
In the month of September of 1976?
Yes, I talked to her.
Is she a former employee?
She’s a former employee.
Of Blue Cross?
Yes.
And you were asking whether or not she could
get a number of people to join the class?
Yes.
And what was the result of that conversation or
conversations you had with Miss Lane?
She said that she would call several people that
she knew had worked with Blue Cross.
Any response to that since then?
I haven’t talked to Joyce. I’ve been so busy in this.
She’s still trying to recruit additional class mem-
bers?
32a
A.
Q.
Appendix G.
I ran into one girl. She said she was talking about
joining.
You ran into one girl?
[74] A. A girl names Chamese.
ror OOO
Q
OP
© >
Is that S-h—
I don’t know how you spell it?
It sounds like S-h-m-e-s-e.
Yes.
And that she had been a former employee of Blue
Cross?
Yes.
And you discussed her joining the class?
She had told me that Joyce had talked to her about
the class and that Joyce was going to talk to her
again.
Any other results from Joyce’s calls?
I haven’t talked to Joyce, or I haven’t talked to any-
one.
Other than Chamese?
Yes.
All right. What other personal calls did you receive
on a regular basis during the period of July 75 to
the present?
No other calls on a regular basis.
Did you ever make any other calls or personal calls
on a regular basis?
[75] A. No, not on a regular basis.
Q
A.
Q.
A.
Q
Well, what calls, what personal calls have you made
that stand out in your mind at this time? To whom?
Yesterday Mr. Robert Pitts called me at home.
He is from the N. A. A. C. P.?
Yes.
I’m talking about while you’re at work.
OFT © P ©
33a
Appendix G.
I’m trying to tell you, he called me at home; and my
husband told him I was at work. He called me at
work, and I returned his call, and I told him that I
would have to talk to him later.
Is that about the N.A.A.C.P. joining your class
action?
No. We did not discuss anything on Blue Cross this
time about that.
By the way, is the N.A.A.C.P. joining this class
action as far as you know?
As far as I know, yes.
And Mr. Pitts told you?
I said as far as I know, yes.
He did tell you that?
Yes.
VOLUME VI—OCTOBER 11, 1976
[115] A. There's one black female, June Pickett, who's
* O
Ope
been in the same position that she’s currently in as
a writer, I believe it is. She’s been in that same posi-
tion for, I would say, perhaps four years.
How do you know that?
Because she was in that position when I was over in
the Junior Achievement Building, and she’s still
currently in that position.
Is she going to join your class?
I haven’t asker her yet. I hope so.
Any other facts to support your conclusion that
blacks were not given an equal opportunity and a
pattern was being established at Blue Cross of
Western Pennsylvania as of the fall of 1974?
The fact that Diane Bey, who’s joined my class, had
indicated—
5
Appendix G.
Q. Diane has joined your class?
A. Yes.
Q. When did Diane Bey join your class?
A. Ican't remember when she joined it.
Q. What did she do to join it?
[116] A. Well, I would ask that she would join it, that
she was with the Plan for 18 months.
Is that in 1974?
No, I guess not.
Mr. Friedman: Mr. Cooper, I ask that you do
not make any gestures.
5 Q
Mr. Cooper: Sorry.
By Mr. Friedman:
Q. So that Diane Bey was not a reason or a fact in
existence as to the time you filed your charges in the
fall of 1974?
That’s correct.
Now, you say Diane Bey has joined your class. Is
Diane Bey represented by Mr. Cooper also?
Yes, she is.
And all she has done is indicate to you she was
going to join your class?
Yes.
And you don’t remember when that was?
No.
* *. . * * * * *
O Or Op
[154] Q. Now, you've testified you've spoken with
Diane Bey; you've spoken with Joyce Lang.
A. Yes.
Q. And you've spoken with Lois Broadus to join your
class?
A. Yes.
8
[
©
0 ©
—
Or OP Orr Or OP Op
35a
Appendix G.
And the three of them will join your class, to your
knowledge?
As far as I know, they will.
They’ve told you they would?
Yes.
55] Q. And you've talked to them all since Septem-
ber 1, 1976?
Yes.
Attempting to recruit them to join your class ac-
tion. Is that correct?
Yes, and to recruit others to join.
And for them to recruit others to join your class
action?
Yes.
You've also testified that you have spoken to the
N.A.A.C.P. Is that correct?
Yes.
Since September 1, 1976?
Yes.
Attempting to enlist N.A.A.C.P. in joining your
class?
Yes.
And also in defraying litigation expenses, paying
the cost of the suit. Is that correct?
To a certain extent.
Did you ask them if they would pay the cost of
your suit?
No, I did not. I have intentions of helping [156] to
pay for my own suit. I’m not looking for anyone
for a hand out.
Is there anyone else, any other black person whom
you asked to join your suit that hasn’t been cov-
ered by my last line of questioning?
I talked to Joyce Deas and Marlene Ramsey last
night.
36a
Appendix G.
Q. You did?
A. Yes.
Q. On the telephone?
A. Yes.
Q. And what did you—what was the substance of
your conversation last night?
A. The substance of the conversation was the deposi-
tion that I’m going through and that I wanted them
to join the class.
And what did they say?
They said they would.
Anyone else?
As of now, I haven’t talked to anyone; but my
intentions is to talk to other people.
Would you please enumerate every person you in-
tend to talk to join your class?
157] A. I can’t really name them all right now.
Well, all the ones you know right now.
That I can think of?
What people can you think of?
Well, Diana Bey.
Diana Bey.
The N.A.A.C.P.
N.A.A.C.P.?
I’m going to get in touch with N.O.W.
That’s National—
National Organization of Women.
Yes.
I’m going to get in touch with the people in the
Urban Crises.
You said Lois.
A girl named Chamese, Judy Harris.
Who's that?
She was a former employee. Joyce Lang, I’ve named
her, Barbara Davis.
© Pore
—
O O f Of Of Of Y
Of Y
2
A
2
A
37a
Appendix G.
And what was she?
Black.
She didn’t apply yet?
I don’t know whether she did or not.
[158] Q. She is the one who called you on the tele-
>
ro PF © Por OPO
|
Sr HOF
phone whom you told don't mention my name if
you're going to apply to Blue Cross?
Yes. All the people that I had listed down there
—my daughter, I’m going to ask her to join, Marcia
Smith.
Have you asked her yet?
Yes.
So you’ve also asked your daughter to join your
class?
Yes.
When did you ask your daughter to join your class?
I asked her last week, I think. I talk to her almost
every day.
That’s since the deposition started, you’ve asked
her?
I might have talked to her before the deposition
started. .
Who else do you intend to ask or have you asked?
I talked to so many people I can’t remember all of
them now.
159] Q. There may be others?
Yes.
Whom you intend to call?
Yes.
And whom you've already called to join your class?
Yes. The director of action coalition.
Who's that?
Charles Harris.
Where are they located?
> © or
O O f ? OP ©
O0 f OP
Appendix G.
He works for Arco, and he has a program on
WAMO.
And what did you want them to do?
I want them to help me out on the class.
Do you want them to help pay for it?
I want them to do whatever they possibly can.
Advertisement or whatever they can to assist.
Now, have you mentioned to your attorney that
you were calling any of these people, Mr. Cooper?
I talked to him on some of them, not all of them.
I haven’t really had a chance to enumerate every
one.
Did you tell him that you called Diane Bey and
[160] had lunch with her?
Yes, I told him that I had lunch with her.
And did you tell him that you had asked Leis
Broadus to join your class?
Yes, I did.
When did you tell him that?
I can’t remember when I told him that.
Was it since September 1 of 1976?
I can’t remember.
Did your attorney ever tell you not to call anyone?
No, he did not.
Your attorney never told you not to call Diane
Bey or Lois Broadus or the N.A.A.C.P. Is that
correct?
I didn’t know that I was restricted.
Well, the answer is, he never told you. Is that
correct?
No.
He never told you. Is that correct?
Not to call people?
Yes.
No, he never said not to call anyone.
39a
Appendiz H.
Appendix H — Opinion and Order of the United States
District Court for the Western District of
Pennsylvania dated February 4, 1977
IN THE
DISTRICT COURT OF THE UNITED STATES
For THE WESTERN DISTRICT OF PENNSYLVANIA
ALMA COLES, 7
Plaintiff,
vs. Civil Action
BLUE CROSS OF WESTERN No. 76-1097
PENNSYLVANIA,
Defendant. |
OPINION
MARSH, Senior Judge
Plaintiff Alma Coles, a black woman, unsuccess-
fully sought a promotion from her employer, Blue Cross
of Western Pennsylvania. Following receipt of a No-
tice of Right to Sue” from the local office of the United
States Equal Employment Opportunity Commission,
plaintiff filed this action on August 27, 1976, alleging
employment discrimination on the basis of race and sex.
On behalf of herself and others similarly situated,
plaintiff requested that the court advance this case
on the docket for an early hearing, grant appropriate
back pay and attorneys’ fees, and issue a permanent
injunction enjoining continued employment discrimina-
tion. On December 10, 1976, plaintiff filed a motion for
40a
Appendix H.
class action determination pursuant to Rule 23(b) (2),
Fed.R.Civ.P. Following a continuance at the request
of the plaintiff, an evidentiary hearing on the motion
for class action determination was fixed for February
3, 1977 at 11:00 o’clock a.m.
At the hearing, plaintiff presented no evidence.
Plaintiff argued that preliminary inquiries by the court
were unnecessary and asserted that all of the require-
ments of Rule 23 had been met by the plaintiff’s com-
plaint.! We disagree.
While it is correct that a court need not inquire into
the merits of the plaintiff’s action in order to determine
whether the suit may be maintained as a class action,
it is equally true that an action is not maintainable as
a class action merely because it is designated as such in
the pleadings. The plaintiff has the burden of showing
that she represents a class and that each of the require-
ments of Rule 23(a) has been met. Davis v. Romney, 490
F. 2d 1360, 1366 (3rd Cir. 1974).
Plaintiff's complaint, in both its original and amend-
ed versions, does little more than simply repeat the
language of Rule 23(a). This is insufficient. There must
be an adequate statement of the basic facts to indicate
that each requirement of the rule is fulfilled. Weathers
v. Peters Realty Corporation, 499 F. 2d 1197, 1200 (6th
Cir. 1974).
1. Counsel for the plaintiff stated that he had no
specific facts or figures as to the existence of a continu-
ing policy or practice of employment discrimination and
that he would not have such information until he re-
ceived answers to a set of interrogatories which were
served after the court entered the order of January 20th
— 1 hearing on the class action motion for Febru-
ary
4la
Appendiæ H.
Plaintiff has alleged that the defendant employs at
least 15 persons and has alleged that she represents a
very broad class of past, present and future black and
female employees as well as blacks and females who
unsuccessfully applied for employment and blacks and
females who would have applied for employment but
who did not do so because of the defendant’s alleged
reputation in the community as an employer that dis-
criminated on the basis of race and sex. However, plain-
tiff has made no showing that such a class would be so
numerous that joinder of all members would be imprac-
ticable.2 Likewise no showing has been made that the
questions of fact involved are common to all members of
the class who are simiiarly situated.
Plaintiffs has also failed to make any showing that
she would not have interests antagonistic to the inter-
ests of other members of the broadly defined class, and
thus the court cannot conclude that the plaintiff would
fairly and adequately protect the interests of the class.
Thus, at the present time there is no basis in the
record to support an order granting plaintiff’s request
for class action designation. Counsel for the defendant
has offered to submit a brief on the class action issue
and counsel for the plaintiff apparently desires addi-
tional time to prepare his case. However, it appears un-
necessary to continue to delay a hearing on the employ-
ment discrimination claim of Mrs. Coles, particularly in
light of the statutory requirement and her request that
this court expedite such a hearing. 42 U.S.C. S 2000 e-5
(f). A final determination on the class action issue can
2. At the hearing, counsel for the —— did offer
his estimate that the class could possibly exceed 18 or
26 members.
42a
Appendix H.
properly be postponed until after the hearing on Mrs.
Coles’ claim. Under § 2000 e-5 (g), the court is empow-
ered to issue injunctive relief where it is appropriate to
end discriminatory employment practices, whether or
not the action has been maintained as a class action.
Furthermore, as Judge Gibbons noted in Katz v. Carte
Blanche Corporation, 496 F. 2d 747, 760 (3rd Cir. 1975),
postponement of class action determination until the
violation has been proved in no way prejudices the po-
tential class members. In Katz, the court was dealing
with a b(3) type class and alleged violations of the
Truth in Lending Act, but the reasoning appears ap-
plicable to the instant case, particularly since due proc-
ess does not require notice to absent members of a b(2)
class. See Wetzel v. Liberty Mutual Insurance Co., 508
F. 2d 239, 256-257 (3rd Cir. 1975). Delay of a final
class action determination is also consistent with the
intent of Rule 23 (c) (1).
Therefore, in light of the above and in light of the
statutory requirement that this court expedite the hear-
ing on the plaintiff’s employment discrimination claim,
the court will postpone final determination of the class
action issue and will schedule a trial on the plaintiff’s
claim at the earliest possible date.
An appropriate order will be entered.
RABE MARSH
United States District Judge
February 4, 1977.
43a
Appendix H.
In THE
DISTRICT COURT OF THE UNITED STATES
For THE WESTERN DISTRICT OF PENNSYLVANIA
ALMA COLES, 7
Plaintiff,
Civil Action
un No. 76-1097
BLUE CROSs OF WESTERN PENNSYLVANIA,
Defendant. 7
ORDER OF COURT
AND Now, to-wit, this 4th day of February, 1977,
a hearing having been held on February 3, 1977 on plain-
tiff’s motion for class action determination, and the
plaintiff having presented no evidence, and it appearing
to the court that plaintiff has failed to meet the require-
ments of Rule 23 (a), Ir Is ORDERED that plaintiff’s action
will not be designated as a class action at this time.
Ir Is FURTHER ORDERED that a final determination
on the motion for class action designation be and the
same hereby is postponed pending trial on plaintiff’s
claim of employment discrimination.
Ir IS FURTHER ORDERED that the plaintiff’s employ-
ment discrimination claim is hereby scheduled for Wed-
nesday, February 23, 1977 at 10:30 a.m.
RABE MARSH
United States District Judge
44a
Appendix I.
Appendix I—Orders of the United States District Court
for the Western District of Pennsylvania dated
August 3, 1977 and September 6, 1977
In THE
DISTRICT COURT OF THE UNITED STATES
For THE WESTERN DISTRICT OF PENNSYLVANIA
ALMA COLES,
Petitioner :
vs. Civil Action
HONORABLE RABE F. MARSH, No. 76-1097
United States District Judge, . (Circuit
Nominal Respondent Court
BLUE CROSS OF WESTERN No. 77-1235)
PENNSYLVANIA,
Respondent |
ORDER OF COURT
AND Now, to-wit, this 3rd day of August, 1977,
pursuant to writ of mandamus filed August 1, 1977, by
the United States Court of Appeals for the Third Circuit,
It Is ORDERED, ADJUDGED AND DECREED that the order of
this court under date of December 17, 1976, is hereby
vacated.
RABE MARSH
United States District Judge
45a
Appendiz I.
In THE
DISTRICT COURT OF THE UNITED STATES
For THE WESTERN DISTRICT OF PENNSYLVANIA
ALMA COLES,
Plaintiff,
vs.
BLUE CROSS OF WESTERN PENNSYLVANIA,
Defendant.
Civil Action
No. 76-1097
ORDER OF COURT
Ap Now, to-wit, this 6th day of September, 1977,
Ir Is ORDERED that the order of this court dated August
3, 1977, be and the same hereby is vacated.
Pursuant to the writ of mandamus issued by the
United States Court of Appeals on July 28, 1977 (No.
77-1235), Ir Is ORDERED that the order of this court
entered December 17, 1976, upon defendant’s amended
motion for a protective order be and the same hereby
is vacated.
RABE MARSH
United States District Judge
46a
Appendix J.
Appendix J — Opinion of the United States Court of
Appeals for the Second Circuit in Weight Watchers
of Philadelphia, Inc. v. Weight Watchers, Int. Inc.,
455 F.2d 770 (2d Cir. 1972)
WEIGHT WATCHERS OF PHILADELPHIA, INC.,
Plaintiff-Appellant,
v.
WEIGHT WATCHERS INTERNATIONAL, INC.,
Defendant-Appellee.
Docket 71-2158.
United States Court of Appeals, Second Circuit.
Argued Jan. 4, 1972.
Decided Jan. 20, 1972.
FRIENDLY, Chief Judge:
Defendant moves to dismiss, for want of appellate
jurisdiction, an appeal by plaintiff from an order per-
mitting the defendant to communicate, on terms stipu-
lated by the district judge, with potential members of
a class on whose behalf plaintiff seeks to maintain a
class action. This is the latest but, we are sure, not the
last case in which we must determine to what extent
orders long antedating the final disposition of such
suits are appealable.
The complaint, in the District Court for the Eastern
District of New York, alleged that defendant is en-
gaged in the business of maintaining a system of fran-
chises, some 95 in number, in various parts of the
United States to promote its standardized weight-reduc-
tion and weight-control programs and to resell various
goods in connection therewith. Plaintiff holds the fran-
chise for Philadelphia, Pennsylvania. The complaint al-
47a
Appendix J.
leged that defendant has imposed on plaintiff and other
franchises maximum and, indeed, uniform prices, there-
by causing damages of at least $15,000,000 to the class.
Plaintiff asserted that the suit was maintainable as a
class action under F.R.Civ.P. 23(b) (1), (2) and (3).
In accordance with local court rules, the action was
assigned to Judge Bruchhausen, since he had previous-
ly been assigned a somewhat similar action, except for
the lack of class allegations, wherein two other fran-
chisees, Bergen, Weight Watchers, Inc. and Weight
Watchers of Hartford, Inc., sought large damages for
alleged antitrust and other violations.
Shortly after the instant action was brought, Mr.
Lippert, chairman of defendant’s board of directors,
sent a letter to all franchisees. This announced that
defendant would vigorously defend both actions, that
it was seeking evidence helpful to that end, and that,
in its view, “Widespread publicity that any Franchisees
claim that they preferred to charge more money to 4
highly sensitive obese population would surely have a
detrimental effect on the image of WEIGHT WATCH-
ERS.” Later a similar letter was sent by defendant’s
president, Mrs. Nidetsch. These precipitated a motion
by plaintiff asking the court to exercise its regula-
tory powers under F.R.Civ.P. 23(d) so as to restrain
defendant from communicating with any member or
potential member of the class concerning the action
without prior approval of the court or of plaintiff’s
counsel, to direct defendant to send a letter of retrac-
tion in a form proposed by plaintiff, and to require
defendant to file a report of any communications that
had been had with members of the class. In Judge Bruch-
hausen’s absence, this motion came on for hearing be-
fore Judge Costantino. The judge properly considered
48a
Appendix J.
his duty to be to take only such action as he believed
to be immediately required to preserve the status quo
with a view to enabling Judge Bruchhausen to resume
control upon his return. Taking note of the Suggested
Local Rule No. 7 in the Manual for Complex and Multi-
district Litigation, and the Sample Pretrial Order 15,
he directed that both plaintiff and defendant be re-
strained from further communications without the con-
sent and approval of the court, in the form stated in
Sample Pretrial Order 15. He reserved plaintiff’s other
requests for decision by Judge Bruchhausen, save for
directing the parties not to respond to any communi-
cations concerning the action except to acknowledge re-
ceipt and to make certain limited answers.
Upon Judge Bruchhausen’s return, defendant moved
for a modification of Judge Costantino’s order. The
court granted this. Its order provided that defendant
might conduct discussions with franchisees concerning
the subject matter of the action “in connection with
contract negotiations requested in each instance by the
franchisee” and incorporate any conclusion in any
agreement resulting therefrom. This permission was
subject to the conditions that counsel for the franchisee
should be present at each negotiating session and re-
view any new contract provision, that plaintiff’s coun-
sel should receive at least five days advance notice of
the commencement of any such negotiations and of
each negotiating session and be afforded full oppor-
tunity to express their views concerning the rights of
the franchisees with respect to the subject-matter of
the action, and that the last negotiating session with
each franchisee prior to execution of a contract should
be held at the offices of defendant’s counsel in New
York City—a location convenient to plaintiff’s counsel.
7
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7
7
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7
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.
49a
Appendix J.
Plaintiff’s request for letters of retraction, which had
been reserved by Judge Costantino, was denied. Plain-
tiff appealed from the order and moved for a stay.
Upon defendant’s announcing that it intended to move
promptly to dismiss the appeal for want of appellate
jurisdiction, the stay was granted.
(1) It is obvious that the order is not a “final
decision” within 28 U.S.C. § 1291, in the ordinary sense
of finally determining the rights of the plaintiff and
the class it seeks to represent against the defendant.
Indeed it makes no determination bearing upon these
in the slightest degree. Plaintiff’s case for appealability
under § 1291 thus rests on the assertion that the order
falls within “that small class which finally determine
claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied re-
view and too independent of the cause itself to require
that appellate consideration be deferred until the whole
case is adjudicated.” Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541, 546-547, 69 S.Ct. 1221, 1225-1226,
93 L.Ed. 1528 (1949). We have often indicated that
Cohen must be kept within narrow bounds, lest this
exception swallow the salutary “final judgment“ rule.
See Bancroft Nav. Co. v. Chadade S.S. Co., 349 F.2d
527, 529-530 (2 Cir. 1965); Donlon Industries, Inc. v.
Forte, 402 F.2d 935, 937 (2 Cir. 1968); West v. Zur-
horst, 425 F.2d 919 (2 Cir. 1970).
When we compare the order here sought to be ap-
pealed with others implicating Cohen, the inapplicability
of that decision becomes clear. An order, like that of the
district court in Cohen, which refused to apply a statute
requiring an undertaking for costs by the plaintiff be-
fore the suit could be prosecuted, deprived the defendant
50a
Appendix J.
of the very benefit the legislature arguably intended to
confer. Per contra an order requiring such an under-
taking when the court allegedly had no power to do this,
as in Fieiding v. Allen, 181 F.2d 163 (2 Cir.), cert. de-
nied, 340 U.S. 817, 71 S.Ct. 46, 95 L.Ed. 600 (1950), and
Chabot v. Nat’l Securities & Research Corp., 290 F.2d
657 (2 Cir. 1961), might prevent a plaintiff from enter-
ing the courtroom door. The order here can have no such
drastic consequences. Its maximum effect, and this is
wholly speculative, would be to cause settlements by so
many franchisees—a course long favored by the law, cf.
Williams v. First Nat’l Bank. 216 U.S. 582, 595, 30 S.Ct.
441, 54 L.Ed. 625 (1910) —as to eliminate the numerosity
which F.R.Civ.P. 23(a) (1) makes a prerequisite to a
class action, leaving plaintiff nonetheless free to prose-
cute its own individual claim, as two other franchisees
were already doing.
(2) Another important factor bearing on the ap-
plication of the Cohen doctrine, which we mentioned in
Donlon, supra, 402 F.2d at 937, is whether a decision will
settle a point once and for all, as it did in the Cohen case,
or will open the way for a flood of appeals concerning the
propriety of a district court’s ruling on the facts of a
particular suit. This case is of the latter sort. Plaintiff’s
attempt to escape this conclusion by asserting that once
a plaintiff brings a suit on behalf of a class, the court
may never permit communications between the defend-
ant and other members, even when, as here, both desire
this, is in conflict not only with Suggested Local Rule
No. 7 and Sample Pretrial Order 15, but with elementary
considerations of common sense—and possibly, although
we need not decide this, with command of higher au-
.
t
:
——
51a
Appendix J.
thority as well. Indeed, we are unable to perceive any
legal theory that would endow a plaintiff who has
brought what would have been a “spurious” class action
under former Rule 23 with a right to prevent negotiation
of settlements between the defendant and other potential
members of the class who are of a mind to do this;!
it is only the settlement of the class action itself without
court approval that F.R.Civ.P. 23(e) prohibits. Cf. Web-
ster Eisenlohr, Inc. v. Kalodner, 145 F.2d 316, 320 (3
Cir. 1944) (Goodrich, J.) cert. denied, 325 U.S. 867, 65
S.Ct. 1404, 89 L.Ed. 1886 (1944).
(3) Defendant properly relies also on our decisions,
last reviewed in Korn v. Franchard Corp., 443 F.2d 1301,
1304-1306 (2 Cir. 1971), that an order under F. R. Civ. P.
23(c) refusing designation as a class action is not ap-
pealable unless it rings “the death knell” on the named
plaintiff’s ability to prosecute his own claim, even though
there may be members of the class whose claims would
be too small to permit individual prosecution; it argues
that if an order refusing class designation in this care
would not have been appealable, the less serious action
here taken cannot be. The ad damnum here alleged for
the class and the fact that two other franchisees have
felt able to proceed on their own, negate the possibility
that successful negotiations with enough franchisees to
eliminate the required numerosity for a class action, all
of which is entirely speculative, would deprive plaintiff of
its day in court. See Milberg v. Western Pacific R.R., 443
F.2d 1301, 1306-1307 (2 Cir. 1971), decided along with
1. We do not here pass on the problem with re-
spect to settlement that would exist when an action has
been designated as a class action under F. R. Civ. P. 23(c)
(1) and a member of the class has not requested exclu-
sion under F.R.Civ.P. 23(c) (2).
52a
Appendiz J.
Korn, holding the death knell doctrine inapplicable when
the named plaintiff and her husband had claims of
$8,500. Indeed, plaintiff makes no contention of practical
inability to proceed on its own behalf; rather it would
distinguish Milberg, Caceres v. Int'l Air Transport Ass’n,
422 F.2d 131 (2 Cir. 1970), and City of New York v.
Int'l Pipe & Ceramics Corp., 410 F.2d 295 (2 Cir. 1969),
on the ground that the propriety of an order refusing
class action designation can be considered on an appeal
from the final judgment, whereas there will never be an-
other chance for appellate consideration of the order
here sought to be appealed. But we have often held that
mere inability to secure review of an interlocutory order
on appeal from the final judgment does not warrant per-
mitting immediate review of such orders. See Flegen-
heimer v. General Mills, Inc., 191 F.2d 237 (2 Cir. 1951) ;
Bancroft Nav. Co. v. Chadale S.S. Co., Supra, 349 F.2d
at 529-530; Donlon Industries, Inc. v. Forte, supra; West
v. Zurhorst, supra, cf. Cushing v. Laird, 107 U.S. 69, 76,
2 S.Ct. 196, 27 L.Ed.2d 391 (1883). Congress has deter-
mined in its wisdom, and we think it was indeed wise,
that some orders merely regulating the process of liti-
gation can better be left to the unreviewable discretion
of the district court rather than become the subject of
appeal, whether from the interlocutory order or of the
final judgment.
(4) A second string to plaintiff’s bow is that Judge
Bruchhausen’s order modified an injunction previously
granted by Judge Costantino and thus appealable under
28 U.S.C. 5 1292 (a) (1). This argument collides not only
with the many decisions that the mere presence of
words of restraint or direction in an order that is only
a step in an action does not make § 1292 (a) (1) applica-
ble,“ see cases cited in International Prods. Corp. v.
53a
Appendiæ J.
Koons, 325 F. 2d 403, 406 (2 Cir. 1963), but also with our
explicit decision there “to continue to read § 1292(a) (1)
as relating to injunctions which give or aid in giving
some or all of the substantive relief sought by a com-
plaint .. . and not as including restraints or directions in
orders concerning the conduct of the parties or their
counsel, unrelated to the substantive issues in the action,
while awaiting trial.” Such a principle is peculiarly ap-
plicable in this case where the “injunction” was granted
on an interim basis and expressly contemplated subse-
quent modification by the judge to whom the action had
been assigned.
(5) Plaintiff responds with a claim that the Inter-
national Products opinion was overruled sub silentio by
its writer in Wolf v. Barkes, 348 F.2d 994, 995 (2 Cir.),
cert. denied, 382 U.S. 941, 86 S.Ct. 395, 15 L.Ed.2d 351
(1965). There, with a mere reference to § 1292(a) (1),
we took jurisdiction of an appeal from an order re-
fusing to enjoin a corporation, which was a party to
a stockholders’ derivative action, from settling with
certain defendants without compliance with what was
then F.R.Civ. P. 23(c), now 23(e). The argument, while
showing commendable diligence, is unsound. Apart from
the fact that, as examination of the briefs confirms, the
issue of appellate jurisdiction was not raised, the Wolf
case is fairly distinguishable. So far as the settling
defendants were concerned, the settlements there would
destroy the claim plaintiffs had asserted on behalf of
the corporation, leaving only a considerably less attrac-
tive claim that in making the settlements the directors
had again breached their duty. The requested injunc-
tion was thus directed at preserving the substance of
plaintiff's complaint from destruction by the corpora-
tion. Here, even if defendant should succeed in settling
54a
Appendiz J.
with so many franchisees that the court will be forced
to deny class action status, plaintiff’s complaint will
remain untouched. As we have, in essence, already
noted, plaintiff has no legally protected right to sue
on behalf of other franchisees who prefer to settle;
F. R. Civ. P. 23(e), requiring court approval of the dis-
missal or compromise of a class action, does not bar
non-approved settlements with individual members
which have no effect upon the rights of others. Cf.
Webster Eisenlohr, Inc. v. Kalodner, supra.
(6,7) Plaintiff concludes with the standard request
that if we hold the order unappealable, we should treat
the appeal as a motion for leave to file a petition for
mandamus. We make the standard response. We will
so treat it, but will deny it, since the order was well
within the wide range of discretion in the manage-
ment of class actions necessarily accorded the district
judge by F.R.Civ.P. 23(d). As said in Donlon Indus-
tries, Inc. v. Forte, supra, 402 F.2d at 937, “we do not
—indeed may not— issue mandamus with respect to
orders resting in the district court’s discretion, save
in most extraordinary circumstances not remotely pre-
sented here.” See Will v. United States, 389 U.S. 90,
88 S.Ct. 269, 19 L.Ed.2d 305 (1967) ; Pfizer, Inc. v. Lord,
449 F.2d 119 (2 Cir. 1971).
The motion to dismiss the appeal is granted. Treat-
ing the appeal as a request for leave to file a petition for
mandamus, we deny it. We vacate the stay.
55a
Appendix J-1.
Appendix J-1 — Order of the United States District
Court for the Eastern District of New York dated
September 28, 1971, withdrawn September 28,
1971 and reinstated October 1, 1971
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
WEIGHT WATCHERS OF PHILADELPHIA,
INC., on behalf of itself and members
of the class similarly situated, 71 Civ. 1089
33 F ORDER
against
WEIGHT WATCHERS INTERNATIONAL, INC.
Defendant.
Plaintiff having moved, by order to show cause
dated September 9, 1971. for an order restraining de-
fendant and others from communicating with members
of the class upon whose behalf this action has been
brought and other relief; the parties by stipulation of
September 9, 1971 having agreed that neither the par-
ties nor their counsel would communicate with any mem-
bers of the class pending a hearing on the motion; the
parties by stipulation dated September 13, 1971 (and
“so ordered” by Judge Costantino on the same date)
having agreed to further prohibit such communications
with minor exceptions; Judge Costantino having stated
from the bench on the return date that all communica-
tions between the parties and members of the class
should be prohibited without prior approval of the
56a
Appendiz J-1.
Court and that rulings on all other relief be deferred
until Judge Bruchhausen, who has been assigned to the
case, has returned from vacation; Judge Costantino hav-
ing filed a memorandum and order dated September 23,
1971; and due deliberation having been had;
It Is ORDERED that all parties hereto, their officers,
directors, employees, agents, representatives and their
counsel be, and hereby are, forbidden directly or indi-
rectly, orally or in writing, to communicate concerning
such action with any potential or actual class member
not a formal party to the action without the consent and
approval of the proposed communication and proposed
addressees by order of this Court, except any party or
its counsel may respond to communications from any
franchisee or its counsel by acknowledging receipt there-
of and may accurately respond to a franchisee’s inquiry
as to the status of this action provided such responses
are limited to a statement of the allegations in the com-
plaint, defendant’s answer and the existence of this
order and the Court’s memorandum and order dated
September 23, 1971. Any proposed communication pro-
hibited by this order shall be presented to this Court in
writing with a designation of or description of all ad-
dressees and with a motion and proposed order for prior
approval by this Court of the proposed communication.
The communications forbidden by this order include, but
are not limited to, (a) solicitation directly or indirectly
of legal representation of potential and actual class
members who are not formal parties to this action; (b)
solicitation of fees and expenses and agreements to pay
fees and expenses from potential and actual class mem-
bers who are not formal parties to this action; (c)
solicitation of requests by class members to opt out of
57a
Appendix J-1.
this action; and (d) communications from counsel or a
party which may tend to misrepresent the status, pur-
poses and effects of this action and of any actual or po-
tential Court orders, which may create impressions tend-
ing, without cause, to reflect adversely on any party,
any counsel, this Court, or on the administration of
justice. The obligations and prohibitions of this order
are not exclusive. All other ethical, legal and equitable
obligations are unaffected by this order. This order does
not forbid (1) communications between an attorney and
his client or a prospective client, who has on the initia-
tive of the ient or prospective client consulted with,
employed or proposed to employ the attorney, or (2)
communications occurring in the regular course of busi-
ness which do not have the effect of soliciting repre-
sentation by counsel or to opt out of this action or mis-
representing the status, purposes or effect of the action
and orders therein;
It Is FURTHER ORDERED that the balance of plaintiff’s
motion be, and the same hereby is, respectfully referred
to the Hon. Walter Bruchhausen, for decision; and
It Is FURTHER ORDERED that the Motion Clerk be,
and hereby is, directed to deliver all papers relating to
this action to the Chambers of the Hon. Walter Bruch-
hausen.
MARK A. COSTANTINO
U.S.D.J.
58a
Appendix J-2.
Appendix J-2 — Order of the United States District
Court for the Eastern District of New York
dated December 14, 1971
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
WEIGHT WATCHERS OF PHILADELPHIA,
INc., on behalf of itself and members
of the class similarly situated, 71 Civ. 1089
ORDER
against
WEIGHT WATCHERS INTERNATIONAL, INC.,
Defendant.
Defendant having moved, by motion dated Novem-
ber 5, 1971, for an order pursuant to the October 1, 1971
Order entered by Judge Costantino in this matter per-
mitting it to engage in contract negotiations requested
by certain franchisees which will encompass the subject
matter of this action; and the Court having reviewed
the submission of the parties and having heard argu-
ment thereon; and due deliberation having been had and
a memorandum having been filed on December 6, 1971;
It Is ORDERED:
A. That defendant may conduct discussions with
franchisees concerning the subject matter of this action
and such franchisees’ rights with respect thereto, in
connection with contract negotiations requested in each
instance by the franchisee, and may incorporate any
59a
Appendix J-2.
conclusion thereon in any franchisee agreement or con-
tract resulting from such negotiations, provided that (1)
counsel for the franchisee shall be present during each
meeting or other negotiating session between defendant
and his client and shall review any provision concerning
this litigation or its subject matter incorporated in any
franchise agreement or contract resulting from such
negotiations; (2) plaintiff and its counsel shall receive
at least five days’ advance notice of the commencement
of such contract negotiations with each franchisee and
of each negotiating session as to each franchisee and
shall be afforded full opportunity to be present at each
such negotiating session and to express their views con-
cerning the rights of the franchisees solely with respect
to the subject matter of this action; and (3) the last
negotiating session with each franchisee prior to execu-
tion of a franchise contract shall be held at the offices
of defendant’s counsel in New York City.
B. That plaintiff’s motion of September 9, 1971 re-
questing a direction from this Court ordering retraction
of certain letters of defendant’s officers dated August
30, 1971 and September 3, 1971 is in all respects denied.
Dated: Brooklyn, New York
December 14, 1971
s/ WALTER BRUCHHAUSEN
U.S.D.J.
60a
Appendix K.
Appendix K — Opinion of the United States District
Caurt for the Eastern District of Louisiana in
Waldo v. Lakeshore Estates, Inc., 433
F. Supp. 782 (E.D. La. 1977)
John S. WALDO, et al.
v.
LAKESHORE ESTATES, INC., et al.
Civ. A. No. 76-1082.
United States District Court,
E. D. Louisiana.
Feb. 15, 1977.
MEMORANDUM OPINION AND ORDER
BOYLE, District Judge:
This litigation stems from the purchase of a num-
ber of lots of real estate in the Lac Des Allemands
Recreational Community of St. John’s Parish, Louisi-
ana, and, specifically, from factual misrepresentations
and other irregularities said to have occurred in con-
nection therewith. The named plaintiffs are six indi-
vidual lot-purchasers and the Lac Des Allemands Prop-
erty Owners Association, a non-profit corporation pur-
porting to represent some 150 other persons who bought
lots.
Plaintiffs proceed against various financing insti-
tutions as well as real estate agencies and agents al-
leged to have participated in the purchase transactions.
Two of the six causes of action urged arise under fed-
eral statutory law, i. e., the Interstate Land Sales Full
Disclosure Act (15 U.S.C. § 1701 et seq.) and the Se-
curities Act of 1933 (15 U.S.C. § 77a et seq.). The re-
maining causes are state claims of securities law vio-
6la
Appendix K.
lations, recission based on fraud and/or mistake and
redhibition.! The suit is brought as a class action, and
the named plaintiffs have moved to maintain it as such
on behalf of all persons who bought lots in the devel-
opment under circumstances enabling them to pursue
the causes of action set forth in the complaint, and
specifically including those who made purchases rely-
ing in good faith upon the defendants’ alleged mis-
representations. See Plaintiffs’ Motion to Maintain Class
Action [Rec.Doc. # 38].
Prior to the filing of the motion to certify, one of
the defendants, Century National Bank, moved to dis-
miss the suit on the grounds of an alleged violation by
plaintiffs and/or their counsel of Rule 2.12e of the rules
of this court. The rule provides as follows:
* * * * *
2.12 Class Actions
e. In every potential and actual class action
under Rule 23, F. R. Civ. P., all parties thereto and
their counsel are hereby forbidden, directly or in-
directly, orally or in writing, to communicate con-
cerning such action with any potential or actual
class member not a formal party to the action with-
out the consent of an approval of the communica-
tion by order of the court. Any such proposed com-
munication shall be presented to the court in writ-
ing with a designation of or description of all ad-
dresses and with a motion and proposed order for
prior approval by the court of the proposed com-
munication and proposed addresses. The communi-
cations forbidden by this rule, include, but are not
1. For present purposes, these claims are assumed
cognizable under our pendent jurisdiction.
62a
Appendix K.
limited to, (a) solicitation directly or indirectly of
legal representation of potential and actual class
members who are not formal parties to the class
action; (b) solicitation of fees and expenses and
agreements to pay fees and expenses from poten-
tial and actual class members who are not formal
parties to the class action; (c) solicitation by
formal parties to the class action of requests by
class members to opt out in class actions under sub-
paragraph (b) (3) of Rule 23, F.R. Civ.P.; and (d)
communications from counsel or a party which may
tend to misrepresent the status, purposes and effects
of the action, and of actual or potential court orders
therein, or may create impressions tending, without
cause, to reflect adversely on any party, any coun-
sel, the court, or the administration of justice. The
obligations and prohibitions of this rule are not ex-
clusive. All other ethical, legal and equitable obliga-
tions are unaffected by this rule.
This rule does not forbid (1) communications
between an attorney and his client or a prospective
client, who has on the initiative of the client or pro-
spective client consulted with, employed or proposed
to employ the attorney, or (2) communications oc-
curring in the regular course of business or in the
performance of the duties of a public office or agency
(such as the Justice Department) which do not have
the effect of soliciting representation by counsel or
misrepresenting the status, purposes or effect of the
action and orders therein. Nor does the rule forbid
communications protected by a constitutional right.
However, in such instances the person making the
communication shall within five days after such
63a
Appendix K.
communication file with the court a copy of such
communication, if in writing, or an accurate and
substantially complete summary of the communica-
tion if oral.
Century National contends that the minutes of a meet-
ing conducted by the plaintiff organization on April 3,
1976, along with a written summarization of this law-
suit, were mailed to both members of the organization
and non-members. See Minutes/Summary, attached as
Appendix hereto. It argues that this mailing constituted
an attempt to solicit and promote participation in the
suit, contravening the directive of the local rule against
any unapproved communication concerning an actual or
intended class action by all parties thereto or counsel
with actual or potential class members.
We referred the matter for hearing and report to
United States Magistrate James D. Carriere as a Special
Master pursuant to Rule 5° f the Federal Rules of Civil
Procedure, instructing him to also make recommenda-
tions regarding what sanctions should be imposed in the
event the rule was found to have been violated. See Order
of Reference of July 22, 1976 [Rec. Doc. 243. 2 In a pre-
liminary conference with the Magistrate, all parties
agreed that further proceedings in this court — includ-
ing, of course, our consideration of the certification ques-
2. Following the entry of this order, plaintiffs
moved to assert a violation of Rule 2.12e by the defend-
ant Century National, and to include this allegation with-
in the scope of the Special Master’s investigation. The
motion was referred for disposition to Magistrate Car-
riere, by whom it was granted. See Order of Reference
of August 24, 1976 [Rec.Doc.#61]; Magistrate Car-
— Minute Entry of September 1, 1976 [Rec. Doc.
#63).
64a
Appendix K.
tion — should be stayed pending the Master’s report and
recommendations. See Magistrate Carriere’s Minute En-
try of August 10, 1976 [Rec. Doc. #52]. Nonetheless, it
has now become necessary for us to decide an issue
raised herein without awaiting the outcome of the Spe-
cial Master’s investigation, for the plaintiffs have filed a
motion to have Local Rule 2.12e declared invalid as viola-
tive of the First and Fifth Amendments to the Constitu-
tion and/or exceeding the court’s statutory rule-making
authority, and to have all proceedings relative to the
alleged violations of the rule stayed pending a disposi-
tion of their motion.
(1-3) Since the instant motion was filed, no further
proceedings have been scheduled before the Special Mas-
ter. Considering the prayer for a stay thus mooted, we
proceed to the issue of the local rule’s validity. In so
doing, the justiciability of that issue necessarily is
acknowledged. A court acting in its adjudicative capacity
may hear a challenge to the legitimacy of a rule it has
promulgated pursuant to the quasi-legislative function
of regulating the practice of law at bar. Moreover, such
a challenge may be brought by one assertedly having
violated the rule, and the rule may not stand if found to
violate the constitutional or other substantive rights of
the challenging party. See In re Oliver, 452 F.2d 111 (7
Cir. 1971).
In this regard, it also should be noted that Local
Rule 2.12e does operate to limit the exercise of certain
rights otherwise guaranteed by the First Amendment.
Its application to the proceeding at hand restricts not
only certain expressions by parties and counsel, but also
impinges upon the constitutionally-derived interest of
the recipient(s) to secure the communication. See Pro-
65a
Appendiæ K.
cunier v. Martinez, 416 U.S. 396, 408, 94 S. Ct. 1800, 1809,
40 L.Ed.2d 224 (1974).3 Likewise limited by the rule’s
operation is the opportunity of the plaintiff organization
to communicate concerning legal redress with those
members who are not formal parties to the suit, which
activity ordinarily would be entailed in the freedom of
association and the collective right of an organizational
membership to achieve effective judicial access. See
Brotherhood of Railroad Trainmen v. Virginia, 377 U.S.
1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1969). Inasmuch as the
rule’s prohibition herein affects non-member recipients
of communications as well, it aso has an impact upon
their own individual rights to assemble and petition for
redress of grievances.
(4-6) But it is beyond peradvanture that First
Amendment freedoms are not absolute, and are properly
limited pursuant to sufficiently important governmental
interests. See Theriault v. Carlson, 495 F.2d 390, 394 (5
Cir.) , cert. denied, 419 U.S. 1003, 95 S.Ct. 323, 42 L.Ed.2d
279 (1974). Constitutionally protected freedom of speech
is “narrower than an unlimited license to talk,” the juris-
prudence on the one hand placing certain speech beyond
the scope of the First Amendment and, on the other,
regulating the unfettered exercise (as opposed to the
actual content) of speech where justified by valid gov-
ernmental policy. See Konigsberg v. State Bar of Cali-
fornia, 366 U.S. 36, 50-51, 81 S.Ct. 997, 1006-07, 6 L.Ed.2d
105 (1961). In the latter category of cases, the authority
of the Government to impose reasonable regulations as
to the time, place and manner of First Amendment ex-
pression is considered axiomatic. See Carlson v. Schles-
3. Without deciding, we assume for present pur-
poses that movants have standing to assert these rights.
66a
Appendix K.
inger, 167 U.S.App.D.C. 325, 511 F.2d 1327, 1331 (1975)
and cases cited therein.
(7-9) Thus, it is not sufficient to simply recognize
the range of First Amendment rights which are affected
by the enforcement of Rule 2.12e. Our task is to assay
the interests served by the rule and weigh these against
the deprivations of free speech, association and/or judi-
cial access which necessarily accompany the rule’s en-
forcement. The importance attached to these freedoms,
however, requires that the governmental interests being
weighed in balance be “compelling” and be furthered
only by regulation drawn with “narrow specificity.” See
N. A. A. C. P. v. Button, 371 U.S. 415, 433, 438, 83 S.Ct. 328,
338, 341, 9 L. Ed. 2d 405 (1963). The restriction of rights
guaranteed by the First Amendment is only justified by
“clear public interest, threatened not doubtfully or re-
motely but by clear and present danger.“ See Thomas v.
Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 323, 89 L. Ed. 430
(1945). The substantive “evil” at which regulation is
directed must be “extremely serious” and the degree of
its imminence “extremely high.” See Bridges v. State of
California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed.
192 (1941).
(10) As a preliminary step in our analysis under
these standards, we must consider whether Local Rule
2.12e constitutes a “prior restraint” on free expression,
as that phrase traditionally has been construed to im-
pose upon the prohibition so designated a “heavy pre-
sumption” against its validity. See Nebraska Press Ass’n
v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 2802, 49 L.Ed.2d
683 (1976) and cases cited therein. Guidance in this
determination is provided by the Seventh Circuit deci-
sion in Chicago Council of Lawyers v. Bauer, 522 F.2d
67a
Appendix K
242 (7 Cir. 1975), cert. denied sub nom., Cunningham v.
Chicago Council of Lawyers, 427 U.S. 912, 96 S.Ct. 3201,
44 L.Ed.2d 1204 (1976). There, a First Amendment chal-
lenge was brought by certain attorneys to a local crimi-
nal rule of the District Court for the Northern District
of Illinois and to a Disciplinary Rule of the American
Bar Association’s Code of Professional Responsibility,
both forbidding them as lawyers from making extra-
judicial, public comments on pending or imminent crimi-
nal proceedings which might interfere with a fair trial.
The court noted that, despite the feature of punishment
by contempt common to both “prior restraints” and the
rules in question, there was a critical distinction to be
made:
Normally a ‘prior restraint’ constitutes a prede-
termined judicial prohibition restraining specified
expression and it cannot be violated even through
the judicial action is unconstitutional if opportuni-
ties for appeal existed and were ignored [citation
omitted]. The validity of court rules, however, can
be challenged by one prosecuted for violating them
since we have held that there is a fundamental dis-
tinction in this regard between actions taken by the
court in its legislative role and those taken in its
adjudicative role [citation omitted].
Id. at 248. Accordingly, while aware of the need to scru-
tinize the rules more closely than it would a legislative
restriction, the court declined to examine them with a
“heavy presumption” against their validity. See id. at
248-49.
(11) We likewise perceive a distinction between the
prohibition of Local Rule 2.12e and what is ordinarily
regarded as a “prior restraint” on speech. To begin with,
68a
Appendix K.
the rule’s general prohibition of unauthorized communi-
cation is coupled with a proviso w ich, in our view, al-
lows such expression as is assertedly protected by the
First Amendment to be made free of prior restraint by
the court. See p. 792, infra. Furthermore, as in the Bauer
case, a violation of this rule does not per se entail im-
mediate or irreversible punishment, by contempt or
otherwise. The instant motion itself indicates that the
rule’s validity may be challenged by one charged with
violating its provisions. Nor would the opportunity to
bring such a challenge be foreclosed were a violation al-
ready established. Our inquiry, then, does not proceed
on the basis of the local rule’s assumed constitutional
infirmity as a “prior restraint.”
(12) Rule 2.12e is drawn verbatim from a “sug-
gested local rule” in the Manual for Complex Litigation,
a publication designed to facilitate procedures for the
handling of class actions and other complex matters. See
Appendix to Part 2, § 1.41, Manual for Complex Litiga-
tion, at p. 145 (1973 ed.) [hereinafter Manual].5 The
4. A different conclusion would not necessarily be
dispositive, since any such presumption is rebuttable.
Capacity for, or the extent of, the “target evil” may in
some cases warrant regulation which consists of a prior
restraint of speech. See Times Film Corporation v. Cit
of Chicago, 365 U.S. 43, 47-49, 81 S.Ct. 391, 393-95,
L.Ed.2d 403 (1961).
5. The draft of a revised version of the Manual re-
cently was circulated among all federal judges, but it
appears that the language of the suggested rule will re-
main unchanged in the new edition. 17 — to Part
II, § 1.41, Tentative Draft of Fourth sion of Manual
for Complex Litigation with Revisions to July 21, 1976,
at pp. 188-189 [hereinafter Draft Manual].
We note that other district courts likewise have
adopted the proposal of the Manual by enacting local
69a
Appendix K.
Manual itself, then, is an appropriate reference to the
potential abuses of the class action procedure which Rule
2.12e purports to eliminate: solicitation of legal repre-
sentation and/or fund contributions directed to those
not formal parties to the action, solicitation of opting
out of the class under Rule 23(b) (3) of the Federal
Rules of Civil Procedure and misrepresentation of the
status, purpose or effect of the action. See Manual, at
p. 22.
(13, 14) Considering first the possible solicitation
of representation and/or funds, we regard regulation
aimed at preventing such an abuse as promotive of both
the public’s and the legal profession’s interests. Not only
does curbing solicitation by less than scrupulous attor-
neys serve those laymen liable to be unfairly badgered
and/or persuaded by the activity, but it also protects
the reputation and professional image of the bar itself.
The local rule expressly states that its prohibitions are
separate from and in addition to ethical obligations; but
furtherance of the same public and professional interests
is the aim of those disciplinary rules enacted by the state
and national bar associations which prohibit advertising
and solicitation. “ The need to balance regulatory meas-
ures in this area against First Amendment guarantees
rules prohibiting unapproved communications to class
members by the parties or counsel in the action. See
Note, “Development in the Law—Class Actions,” 89
Harv. L.Rev. 1318, 1597 n.81 (1976).
6. The Louisiana State Bar Association and the
American Bar Association each has enacted a Code of
Professional Responsibility virtually identical to the
other in the treatment of professional solicitation and
advertising. Thus, both codes contain a disciplinary rule
generally prohibiting a lawyer from publicizing himself,
or allowing himself to be publicized, as one offering legal
services. See DR 2-101(B), ABA Code of Professional
70a
Appendix K.
continues to be the subject of judicial scrutiny, as it re-
mains true that the Government cannot invoke its power
to regulate the professional conduct of its attorneys at
the expense of the individual’s free expression or the
public’s right to fair legal representation. See N.A.A.C.P.
v. Button, supra, 83 S.Ct. at 341; Brotherhood of Rail-
road Trainmen v. Virginia, supra, 84 S.Ct. at 1117.7 But
Responsibility; DR 2-101(B), La.State Bar Ass’n Code
of Professional Responsibility [Art. 16, La. St. Bar Ass’n
Articles of Incorp., LSA-R.S. 37, ch. 4 App.]. Both also
set forth rules prohibiting an attorney from recommend-
ing his employment as a private practitioner to one who
has not sought out his services, from requesting a person
or organization to recommend the use of his services as
a private practitioner, or from knowingly assisting a per-
son or organization that 7 others to promote the use
of his services. See DR 2-103(A), (C) & (D), ABA Code
of Professional Responsibility; DR 2-103(A), (C) &
(D), La. State Bar Ass’n Code of Professional Responsi-
bility [id.]. Finally, both codes forbid a lawyer who has
solicited business from accepting employment as a re-
sult thereof. See DR 2-104(A), ABA Code of Profes-
sional Responsibility; DR 2-104(A), La. State Bar Ass’n
Code of Professional Responsibility [id.].
The state goes one step beyond ethical sanctions to
enforce its policy against solicitation. Louisiana statu-
tory law prohibits any person or business from soliciting
employment for a legal practitioner, and imposes crimi-
nal penalties (fine or imprisonment) for violations. See
LSA-R:S. 37 :213.
7. Last October, the United States Supreme Court
granted review of a decision by the Arizona Supreme
Court that Disciplinary Rule 2-101(B) of the ABA Code
of Professional Responsibility (see note 6, supra), pro-
hibiting the advertising of services by attorneys, does
not violate the First Amendment. See Bates v. Arizona
State Bar, 429 U.S. 813, 97 S.Ct. 53, 50 L.Ed.2d 73
(1976). See also “Supreme Court Will Hear Lawyers’
Advertising Case from Arizona,” ABA Journal, vol. 62,
at 1422 (Nov. 1976).
71a
Appendix K.
such traditional self-governance by the bar, both na-
tionally and locally, reflects its own judgment that the
service of professional and public interests outweighs
the resulting restriction of free expression.
Local Rule 2.12e is at least in part prompted by the
same appraisal. It is one we find all the more compelling
in the class action framework, given the heightened sus-
ceptibilities of nonparty class members to solicitation
amounting to barratry as well as the increased oppor-
tunities of the parties or counsel to “drum up” participa-
tion in the proceeding. Moreover, it is likely that unin-
vited and unapproved communications to this effect
“may appear [to the party solicited} to be an authorized
activity approved by the court, simply by reference to
the title of the court, the style of the action, the name
of the judge, and to official processes. See Manual at 22.
(15-17) An additional interest affecting the court
becomes relevant in considering the potential solicita-
tions of counsel or parties which invite other parties to
opt out of a proceeding maintained as a class action
under Federal Rule 23(b) (3). Rule 23 expressly pro-
vides that, once a 23(b) (3) class action has been al-
lowed to proceed, it remains the special province and
responsibility of the court to direct the “best notice prac-
ticable” to class members, advising them of their privi-
lege to exclude themselves from the class. See Rule
23(c) (2), Fed.R.Civ.Pro. In this way will individual in-
terests be safeguarded by the court in the context of a
proceeding intending to have common claims adjudi-
cated; and, with the opportunity to opt out upon receiv-
ing proper notice, individuals may avoid being bound by
a class-wide judgment that otherwise would preclude
them from litigating their claims separately. The Ad-
72a
Appendix K.
visory Committee Notes which accompany Rule 23 indi-
cate that this court-directed notice of the opportunity to
opt out purports to fulfill the requirements of Due
Process. See Notes of the Advisory Committee following
Fed.R.Civ.Pro. 23, at 302, Title 28, U.S. Code. Unau-
thorized notice issuing from counsel or parties to the
action usurps the authority of the court to enforce such
fundamental requirements and the policy of Rule 23.
Considering the possible confusion resulting from notice
that is less than complete in its terms, and the possible
prejudice caused by notice less than accurate in its rep-
resentations, effective management of the judicial proc-
ess may be directly jeopardized. It is well-settled that
courts may reasonably protect the integrity of their
proceedings by limiting activities ordinarily protected
by the First Amendment. See Dorfman v. Meiszner, 430
F. 2d 558, 561 (7 Cir. 1970). See also Polk v. State Bar of
Texas, 374 F.Supp. 784, 788 (N.D.Tex.1974).
(18) Unapproved communications to class members
that misrepresent the status or effect of the pending ac-
tion also have an obvious potential for confusion and/or
adversely affecting the administration of justice.§ Par-
ticularly should such communications seem vested with
official authority, there arises not only the risk of sub-
8. In the case at bar, we note that the minutes of
the plaintiff organization contain several patent misrep-
resenta‘ions of the suit’s status and effect. The minutes,
purporting to be of a meeting held on April 3, 1976, state
the suit was filed on April 5, 1976. In fact, the action was
filed on April 7. Moreover, declarations are made to the
effect that there is an “overwhelming” possibility the
plaintiffs will prevail and that the contingency fee ar-
rangement is only made by “attorneys who are certain
4 = — 2 See Minutes / Summary, attached as Appen-
ereto.
73a
Appendiæ K.
sequent disenchantment with the judicial process, but
also the danger that individuals will be induced to act to
their detriment in reliance upon misinformation and/or
falsehoods. Thus entailed in this abuse is something
more than a general interest in orderly process which is
shared by the court and the public; there is the added
interest of the individual in achieving a full and fair
judicial remedy. To this extent, it is important to recog-
nize the need for restricting free expression where such
presents a “reasonable likelihood” of endangering the
individual’s constitutional guarantee of a fair trial. See
Manual, at 22 n.28.
(19) Our conclusion that a sufficiently important
objective is served by Local Rule 2.12e does not rest upon
cognizance of the dangers of solicitation alone,“ or of
improper class notice alone, or of misrepresentations
alone. It is all such abuses, considered together and
viewed in the context of the unique class action proce-
dure, which contribute to the finding that this local rule
effectuates a compelling and substantial governmental
interest, one rooted in the judiciary, the bar and the
public at large. Furthermore, we are satisfied that the
potential ills cited in the Manual for Complex Litigation
are far from remote or theoretical. The documented ex-
periences of other courts justify a finding that the in-
cidence of abuse in the class action setting is unfortun-
ately high. See Manual, at 24-25; Draft Manual, at 40-44.
9. Broad regulatory prohibitions aimed at prevent-
ing such evils of improper solicitation as “barratry,
maintenance and champerty” have been stricken down
by the Supreme Court as overly-restrictive of First
Amendment freedoms. See N.A.A.C.P. v. Button, supra,
83 S.Ct. at 340-344. We consider our local rule as ad-
dressing a far more inclusive range of abuses.
74a
Appendix H.
(20, 21) Let, governmental regulation — even in
the pursuit of important objectives — must not unneces-
sarily restrict constitutionally protected activity or
ignore other reasonable approaches which are available
to achieve the same goals without burdening such ac-
tivity. See Dunn v. Blumstein, 405 U.S. 330, 343, 92 S. Ct.
995, 1003, 31 L. Ed. 2d 274 (1972). It thus remains for us
to determine whether freedoms protected under the First
Amendment are needlessly restrained by the operation
of Rule 2.12e. In order to comport with the due process
requirement of the Fifth Amendment, the local rule may
not “sweep unnecessarily broadly,” and must be viewed
in the light of “less drastic means for achieving the same
basic purpose.” See Aptheker v. Secretary of State, 378
U.S. 500, 508, 84 S.Ct. 1659, 1665, 12 L.Ed.2d 992 (1964) ;
Chicago Council of Lawyers v. Bauer, supra, at 249.
(22) The plaintiffs observe that the first portion of
the rule flatly prohibits all unauthorized communica-
tions, and that the succeeding listing of four potential
abuses via such communications does not limit the scope
of the prohibition, the list being illustrative only and not
intended as exhaustive. We find no merit, however, in
the suggestion that specifically listed abuses ought be
matched with specific prohibitory rules, as opposed to an
across-the-board restriction. As a practical matter, it is
extremely dubious that the local rule could be drafted so
as to exhaustively define potential abuses of the class
action device through unauthorized communication with
class members. Unfortunately, the ingenuity of those
determined to wrongly take advantage of the class ac-
tion procedure would likely prevail over any such at-
tempt at prohibition by itemization. The end result
would be instances of compliance with the letter of the
75a
Appendix K.
rule even as the spirit of effective regulation was flouted.
Albeit “less drastic,” therefore, this approach fails to
accomplish the same basic purpose as does the rule in
its present form. 10
10. One commentator has suggested other alterna-
tives to a general prohibition such as Rule 2.126. See
Note, Developments in the Law — Class Actions,”
supra.
On the one hand, it is proposed the court allow di-
rect communication between the class and the class
opponent, thus checking the possible abuses of misrepre-
sentations made by the plaintiff side concerning the pro-
spects of the action. See id. at 1598-99. Aside from the
fact that the problems of solicitation and advertising
would persist, this recommendation appears plagued by
practical problems far greater than those encountered in
the present approach. The same commentator himself
acknowledges that the traditional rule requiring com-
munication with the opposing litigant only through the
latter’s attorney would be contravened. See id. at 1599-
1600. The evils which this rule purports to avoid — e. g.,
the undue influencing of unsophisticated litigants —
would be exacerbated in a class proceeding, and would be
— upon the very persons the local rule seeks to pro-
ct.
A second suggestion advanced is to require the fil-
ing of the intended communication with both the court
and the opponent prior to dissemination, thus allowin
the court to screen the filings and restrain in advance all
that are blatantly abusive while directing corrective
communications where the abuse is established after the
fact. See id. at 1601-02. However, the introduction of
even the most limited screening process would burden
the court further in its handling of a complex matter,
and would only serve to effect a “prior approval” me-
chanism not significantly less drastic than the one which
Local Rule 2.12e allows. Common sense would seem to
favor the existing requirement that, with a few specific
exceptions, all intended communications be submitted
to the court and dependent upon its approval prior to
1
—
76a
Appendix K.
(23) We further note that the general directive of
Rule 2.12e subjecting all communications to prior court
approval is not unqualified. The rule’s second paragraph
sets forth two exceptions: communications between an
attorney and one who has initiated contact with him con-
cerning the employment of his services, and communica-
tions in the course of the business of a public office or
agency which do not have the effect of solicitation or
misrepresentation. The latter language properly recog-
nizes that communications such as those emanating from
attorneys general or other legal officials should be pre-
sumed servient of the public interest rather than poten-
tially abusive of a pending class action. See Manual, at
23. To extend the general prohibition of the rule into this
area, then, would give 2.12e too wide a sweep. The first
exception, even broader in its application, leaves un-
affected discourse between an attorney and either his
actual client or one who has himself sought legal counsel.
Thus, the rule safeguards the exercise of First Amend-
ment freedoms in those cases where the attorney’s need
to solicit and/or advertise is obviated, and where possi-
ble misrepresentation of the litigation is a matter rele-
gated to the framework of an existing attorney-client
relationship or to the client-initiated process of arms-
length bargaining for legal services.
(24) The scope of Rule 2.12e is narrowed still fur-
ther by the express provision thai it does not forbid
“communications protected by a constitutional right,”
dissemination, rather than a requirement that the court
immediately screen out communications it deems clearly
abusive or else allow them to be sent out. Moreover, in
the latter situation, it is hardly certain that “corrective
communications” ordered by the court would undo the
ill effects of an earlier abuse.
en — — —
—
; 77a
Appendix K.
and that, in such instances, it is required that the com-
municator within five days file a copy or summarization
thereof with the court. Despite the plaintiff’s argument
that such a provision is meaningless since the “chilling
effect” of 2.12e survives, the language is quite signifi-
cant insofar as it serves to limit the need for prior au-
thorization under the rule. We interpret the provision as
allowing the possibility that a party will engage in what
he considers constitutionally-protected activity without
seeking the prior approval of the court. As is indicated
by a pre-trial order entered in a class suit in the United
States District Court for the Western District of Mis-
souri, it would be entirely consistent with the Manual
rule for the court to direct a procedure whereby a party
or counsel can assert a First Amendment right to com-
municate with the class without any prior restraint, and
then do so on the condition he files the communication
with the court. See Draft Manual, at 38 n.33, 189-90.
Pursuant to this construction of Rule 2.12e, we conclude
that the risk of its regulatory scope being unconstitu-
tionally overbroad is effectively eliminated.
Our conclusion is not altered by the plaintiffs’ refer-
ence to the decision in Rodgers v. United States Steel
Corporation, 508 F.2d 152 (3 Cir.), cert. denied, 423 U.S.
832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). There challenged
both on constitutional grounds and on the theory it ex-
ceeded the court’s rule-making authority was Local Rule
34(d) of the Western District of Pennsylvania, prohibit-
ing any communication by any parties or counsel with
an actual or potential class member unless the communi-
cation first was approved by the court. Only in the proc-
ess of skirting the constitutional questions and estab-
lishing a statutory basis for its conclusion that the rule
78a
Appendix K.
was invalid, did the majority opinion note a serious con-
stitutional issue of overbreadth... .” Jd. at 163-64. But
even aside from the fact that such an observation is dicta
in its decision, the court was careful to distinguish Local
Rule 34(d) from the proposed rule in the Manual for
Complex Litigation. It was noted that, since the local
rule before it contained neither the illustrative list of
abuses nor the limiting exceptions found in the Manual
rule, there was no occasion for the court to consider
whether a rule drafted according to the Manual’s pro-
posal would cure the problem of overbreadth. See id. at
164 n.18.11 Moreover, we would agree with the con-
curring opinion of Judge Weis that the purpose of the
Manual’s proposed rule broadly prohibiting all communi-
cation is itself broad. The objective is not simply to
battle barratry, but to prevent other abuses of the class
action device as well. See id. at 166.
(25, 26) We may dispose briefly of the additional
contention that 2.12 also runs afoul of the Fifth Amend-
ment due to vagueness. The local rule, like any law, must
be drafted so that a person of ordinary intelligence is
given a reasonable opportunity to know what is pro-
hibited, and to act accordingly, particularly where a law
that is vague operates to inhibit the exercise of First
Amendment rights. See Grayned v. City of Rockford, 408
U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222
(1972). But Rule 2.12e satisfies this requirement. There
should be no confusion in ascertaining the meaning of
its reference to “potential” as well as “actual” class ac-
tions, since this clearly contemplates the post-certifica-
11. Going even further, the concurring opinion of
Judge Weis averred that the district court would not be
foreclosed from enacting a rule similar to the Manual
rule. See id. at 166.
79a
Appendix K.
tion as well as pre-certification operation of the rule.
Equally clear from a common-sense reading of the first
sentence are the terms extending coverage to “all par-
ties” to the action, forbidding communication with any
class member not a “formal party” and forbidding com-
munication “directly or indirectly.” Reasonably clear no-
tice also is accomplished by the specific prohibition of
certain “solicitation,” by the exemption of communica-
tions with a “client or a prospective client” and by the
reference back to all previously mentioned exceptions in
imposing the requirement that excepted communications
be filed with the court.
The second and non-constitutional ground of attack
on the validity of Rule 2.12e is that its promulgation
exceeds the rule-making authority of the district court.
In finding the local rule before it invalid for this reason,
the majority in Rodgers v. United States Steel Corpora-
tion, supra, noted that both statutory sources of the
lower court’s rule-making power — i. e., Rule 83 of the
Federal Rules of Civil Procedure and Section 2071 of the
United States Code, Title 28 — require that rules enacted
not be inconsistent with the Federal Rules of Civil Pro-
cedure. See 508 F.2d at 163; Rule 83, F.R.Civ.Pro.; 28
U.S.C. § 2071. Confining its attention to the pre-certifica-
tion application of the local rule only, the Rodgers court
held that a prohibition of all unapproved communica-
tions involving plaintiffs or their attorneys — even when
such communication seeks to encourage common partici-
pation in a class suit — was not consistent with the
policy of the federal rules favoring the disposition of
class claims in a single litigation where feasible. See id.
at 163-64.
Appendiæ K.
(27-29) However, we categorically oppose the no-
tion that a policy allowing unfettered communication to
encourage participation in a class suit is consistent with
the purpose of Federal Rule 23. The potential abuses
attendant upon such unregulated communication clearly
undermine the efficacy of the class action device. By pro-
scribing such communications as tend to solicit legal
services and/or fund contributions, the rule protects the
right of the class membership to judicial redress that is
not unnecessarily burdened. By foreclosing unapproved
notices of the right to opt out and preventing misrepre-
sentations of the lawsuit’s status, purpose or effect, the
membership’s entitlement to a fair trial is safeguard.
The local rule also comports with the intention of the
federal class action rule that there be district court con-
trol over the sending of notices to members of the class.
See 7A Wright & Miller, Federal Practice and Procedure:
Civil § 1797, at 239. We therefore regard Local Rule 2.12e
as entirely consistent with and in furtherance of the
purpose of fully and fairly disposing of class-wide claims
and remedying class-wide grievances in a single proceed-
ing.
For the foregoing reasons, the plaintiffs’ motion to
invalidate Local Rule 2.12e and stay the proceedings be-
fore the Special Master relative to the alleged violations
of the rule should be, and it is hereby, DENIED. The
Special Master shall proceed to investigate the matter
of the alleged violations pursuant to our earlier orders.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.