Amicus Brief — Gulf Oil Co. v. Bernard

we “"

“a

No. 80-441

In the

Supreme Court of the Anited States

OCTOBER TERM, 1980

Gutk Ou COMPANY, ET AL.,

Petitioners,

VS.

Westy P. BERNARD, ET AL.,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

BRIEF OF THE CHICAGO COUNCIL

OF LAWYERS AS AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

RicHARD F. Wart

MarTHa A. MiLts

ELLEN J. MOKGAN

Cotton, Watt, Jones, Kinc & Bow Lus

One IBM Plaza, Suite 4750

Chicago, Illinois 60611

(312) 467-0590

Attorneys for Amicus Curiae

RENAISSANCE PRINTING COMPANY, 76 Wo ADAMS

OTH FLOOR, DETROLT, MICHIGAN 45226 PHONE 964-3155

%' So OO

TABLE OF CONTENTS

Table of Authorities i

Statement of Interest 1

Summary of Argument 9

Argument 14

I. General Restrictions on

Communications Concerning

Class Litigation Unconsti-

tutionally Impinge Upon

First Amendment Freedoms 14

A. Communications by

Parties and their

Counsel are Protected

by the First

Amendment 14

B. A Blanket Restriction

On All Communications

Between Parties, or

Their Counsel, and Class

Members Violates Estab-

lished Constitutional

Standards in the Area

of First Amendment Rights 24

1. The Non-Communication

Order is Not Justified

by the Need to Protect

a Countervailing Compelling

Interest 24

2. The Restriction on All

Communications With Class

Members is Impermissibly 39

Overbroad

3. The Non-Communication

Order is Unconstitu-

tionally Vague 32

II. Broad Restrictions, by Order

or Rule, Upon Communications

Between Parties or Their

Counsel and Actual or Poten-

tial Class Members Exceed the

Authority of the District

Courts 37

Conclusion 49

Certificate of Service 51

TABLE OF AUTHORITIES

CASES

Bates v. Little Rock, 361 U.S.

516 (1959) 27

Bridges v. California, 314 U.S.

252 (1941) 26

Brotherhood of Railroad Trainmen

v. Virginia, 377 U.S. 1

(1964) 15-16, 19

Califano v. Yamasaki, 442 U.S.

682 (1979) 40-41

Chicago Council of Lawyers v.

Bauer, 522 F.2d 242 (7th

Cir. 1975), cert. denied,

427 U.S. 912 (1976) S, 20, 25, 275 3

Coles v. Marsh, 560 F.2d 186

(3d Cir.), cert. denied

Sub nom., Blue Cross v.

Marsh, 434 U.S. 985 (1977) 48

Contract Buyers League v. F&F

Investment, 48 F.R.D. 7

(N.D. Ill. 1969) 39

Craig v. Harney, 331 U.S. 367

(1947) 26

Deposit Guaranty National Bank

v. Roper, 445 U.S. 326

(1980) 40

Dubose v. Harris, 434 F. Supp.

227 (D. Conn. 1977) 39

a em

Grayned v. City of Rockford,

408 U.S. 104 (1972) 33

Great Western Cities, Inc. v.

Binstein, 476 F. Supp.

Sar (H.R. Tike) Bee aes

614 F.2d 775 (7th Cir.

1979) 18, 23

Hohman v. Packard Instrument

Company, 399 F.2d 711

(7th Cir. 1968) 39

In re Primus, 436 U.S. 412

(1978) 19, 2a

Maine v. Thiboutot, 48 U.S.L.W.

4859 (U.S. June 25, 1980)

(No. 79-838) 24=26

NAACP v. Button, 371 U.S. 415

(1963) Li, aa

Nebraska Press Association

v. Stuart, 427 U.S.

539 (1976) 25

New York Times Co. v. United

States, 403 U.S. 713

(1971) 25

Ohralik v. Ohio State Bar

Association, 436 U.S.

447 (1978) 21, 22,

Organization for a Better

Austin v. Keefe, 402

U.S. 415 (1971) 25

atie

Pennekamp v. Florida, 328 U.S. 331

(1946) 26

Procunier v. Martinez, 416

U.S. 396 (1974) 30

Rodgers v. United States Steel

Corporation, 508 F.2d

Boa (20 Cir.), cert.

denied, 423 U.S. 832

(1975) 26, 28

Rutherford v. United Staets,

429 F. Supp. 506

(W.D. Okla. 1977) 39

Schaumburg v. Citizens for

a Better Environment,

444 U.S. 620 (1980) 3hp Bo

Shelton v. Tucker, 364 U.S.

479 (1960) 30-31

Talley v. California, 362 U.S.

60 (1960) 32

Thomas v. Collins, 323 U.S.

516 (1945) 17-18, 26

United Mine Workers v. Illinois

Bar Association, 389 U.S.

217 (1967) 17-18

United Transportation Union

v. Michigan Bar, 401

U.S. 576 (1971) 16, 17

-iii-

Winters v. New York, 333 U.S.

507 (1948) 33

Wood «. Georgia, 370 U.S. 375

(1962) 26

Zarate v. Younglove, 86 F.R.D.

80 (C.D. Cal. 1980) 29, 38, 43

CONSTITUTIONAL PROVISIONS,

STATUTES, RULES AND

REGULATIONS

United States Constitution,

First Amendment passim

28 U.S.C. §2071 38

42 U.S.C. §1983 23

42 U.S.C. §1988 23

red. R. Civ. Bs. 23 passim

Fed. R. Civ P. 83 37-38

Civil Rule 22, United States District

Court for the Northenn District

of Illinois (vacated) passim

= i ee

OTHER AUTHORITIES

Developments in the Law --

Class Actions, 89 Harv.

L. Rev. 1318 (1976) 46-47

Manual for Complex Litigation,

1 J. Moore, Moore's

Federal Practice, Pt. I

and II, §1.41 (2d ed. 1980) passim

7 C. Wright and A. Miller,

Federal Practice and

Procedure (1972) 39

The Chicago Council of Lawyers, with

the written consent of all parties, sub-

mits this brief as amicus curiae, in

support of the Respondents.

INTEREST OF THE AMICUS CURIAE

The Chicago Council of Lawyers (the

"Council"), a member of the American Bar

Association, is an association of approx-

imately 1300 lawyers, most of whom are

admitted to practice before the United

States District Court for the Northern

District of Illinois (the "District

Court"). Many members of the Council

practice regularly as counsel in class

litigation before the District Court.

Council members have represented both

classes and individuals in class actions

involving alleged violations of the United

States Constitution and various civil

rights statutes as well as in class suits

arising under other federal legislation.

Until recently, the speech activities

of Council members and other attorneys

involved in class litigation before the

District Court were governed by Civil

Rule 22 of the United States District

Court for the Northern District of

Illinois ("Rule 22").1 Rule 22, entitled

1 Rule 22 provided as follows:

In every potential and

actual class action under Rule

23, FR. Civ. P. aii parties

thereto and their counsel are

hereby forbidden, directly or

indirectly, 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 of and approval of the

communication by order of the

Court. Any such proposed com-

munication shall be presented

to the Court in writing with

a designation of or description

of all addressees and with a

(footnote continued on next page)

ai Dus

motion and proposed order for

prior approval by the Court of

the proposed communication and

proposed addressees. The commu-

nications forbidden by this rule,

include, but are not limited to,

(a) solicitation directly or

indirectly of legal representa-

tion 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 potential 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 mem-

bers to opt out in class actions

under subparagraphs(b) (3) of

Rule 23, F.R.Civ.P.; and (d)

communications from counsel or

a party which may tend to mis-

represent the status, purposes

and effects of the action, and

of actual or potential Court

orders therein, which may create

impressions tending, without

cause, to reflect adversely on

any party, any counsel, the

Court, or the administration of

justice. The obligations and

prohibitions of this rule are

not exclusive. All other ethical,

legal and equitable obligations

are unaffected by this rule.

(footnote continued on next page)

-3-

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

prospective client consulted

with, employed or proposed to

employ the attorney, or (2)

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 misrepresenting the

status, purposes or effect of

the action and orders therein.

"For the Prevention of Potential Abuses

of Class Actions," was patterned after

the rule recommended in the Manual for

Complex Litigation2 and was substantially

identical to the non-communication order

pakaree by District Court Judge Joe J.

Fisher in the case at bar.? It subjected

to the prior approval of the District

2 Manual for Complex Litigation,

reprinted in 1 J. Moore, Moore's Federal

Practice Pt. II, §1.41 (2d ed. 1980)

[hereinafter cited as Manual].

3 Unlike Judge Fisher's order and

the Manual's proposed rule, Rule 22 did

not contain an exception for constitu-

tionally protected speech. However, as

argued at p. 32, n. 5, infra, that excep-

tion does not cure the constitutional

infirmities of a rule or order generally

restricting communications.

Court almost all communications between

formal parties in an actual or potential

class action, or their counsel, and ac-

tual or potential members of the class.

The Council's interest in the issues

raised by restrictions upon communications

of litigants and their attorneys has been

long-standing. In Chicago Council of

Lawyers v. Bauer, 522 F.2d 242 (7th Cir.

1975), cert. denied, 427 U.S. 912 (1976),

it successfully challenged the constitu-

tional validity of several local rules

which severely curtailed the rights of

litigants and attorneys to comment on

pending criminal and civil litigation.

Following the Bauer decision, the Council

urged the Executive Committee of the

District Court to repeal Rule 22. In

requesting abrogation of the rule, the

Council took the position adopted in the

~

en banc opinion of the Court of Appeals

for the Fifth Circuit in the case at bar.

It argued that Rule 22, like the rules

struck down in Bauer, was an unconsti-

tutionally overbroad and vague prior

restraint on the First Amendment rights

of attorneys, litigants, and potential

litigants. It contended also that the

enactment of Rule 22 exceeded the rule-

making authority of the district courts

in that it conflicted with the objectives

Of Fea. R. Civ. P. 23.

The Council's most recent action

concerning Rule 22 was the submission of

an amicus curiae brief in American Civil

Liberties Union, et al. v. McMillen, 79-

1576 (7th Cir. 1979), in Support of a

petition for issuance of a writ of manda-

mus directing the District Court to re-

scind an order entered pursuant to Rule

22 and to repeal Rule 22 itself. The

order prohibited the parties and their

attorneys in Jane Does, et al. v. City of

Chicago, et al., 79 C 789 (N.D. Ill. E.

Div.), a class action challenging the

constitutionality of strip searches con-

ducted by members of the Chicago Police

Department, from "soliciting" class mem-

bers. The petition for a writ of manda-

mus was denied.

In January, 1981, the judges of the

District Court repealed Rule 22, after

repeated requests by the Council and in

light of the Fifth Circuit's holding in

this case that a non-communication order

virtually identical to Rule 22 was an

unconstitutional infringement upon the

First Amendment rights of attorneys and

litigants. The outcome of this petition,

-8-

therefore, has special significance in

the Northern District of Illinois. This

Court's decision on the validity of non-

communication orders will likely deter-

mine the future here of a rule which

profoundly affects the rights of Council

members and their clients to communicate

freely regarding class litigation in

which they are involved. The Council,

thus, has a direct and immediate interest

in the resolution of this case.

SUMMARY OF ARGUMENT

Restrictions on communications be-

tween parties to an actual or potential

class action, or their counsel, and

individual members of the actual or po-

tential class seriously impinge upon

their well-established constitutional

rights to free speech, association, and

meaningful access to the courts. Under

-9-

either prior or subsequent restraint

analysis, a court may not restrain such

communications in the absence of a clear

showing that they are in direct and

serious conflict with an important public

or private interest and that such restric-

tion is necessary to protect that

interest. While the fair administration

of justice is admittedly a significant

governmental interest, it may not be

invoked as a talismanic justification for

the wholesale rejection of First Amend-

ment rights. The constitution requires,

moreover, that any ban on communications

be tailored narrowly and specifically to

avoid unnecessarily inhibiting the exercise

of First Amendment freedoms.

The non-communication order entered

in the case at bar, like the model rule

and order after which it is patterned,

does not satisfy constitutional standards.

o10<

It is based solely on speculative and

theoretical fears that the parties or

their attorneys may engage in abuses of

the class action device sometime in the

future. The general proscription against

all communications, direct and indirect,

is both vague and overbroad. It encompasses

Speech that presents no threat to the

fair administration of justice as well as

communications that will actually further

that goal. The order improperly deters

activities falling within the protection

of the First Amendment. The Court of

Appeals for the Fifth Circuit correctly

held that such wide-ranging restrictions

on communication exceed constitutional

limitations.

In addition, general orders prohib-

iting all communications concerning class

actions are in direct conflict with the

slie

policies embodied in Fed. R. Civ. P. 23

and therefore, exceed the authority of

the district courts to enter orders and

enact rules so long as they are consis-

tent with the Federal Rules of Civil

Procedure. Rule 23 was intended to pro-

vide a mechanism for resolving suits

involving common factual and legal issues

and common claims for relief in a manner

that would be economical, efficient, and

effective for both the parties involved

and the judicial system.

A communications bar presents formi-

dable obstacles to the achievement of

these objectives. It deprives the parties,

their counsel, and the court of essential

information in deciding whether to proceed

On a class basis. It interferes with the

proper maintenance of a class action by

preventing free development of litigation

Strategy, discovery, and trial preparation.

=) 2<

It inhibits the flow of information to

class members on matters affecting their

interests. A communications bar thus,

hinders meaningful access to the courts

for both class representatives and class

members.

While the district courts are not

without power to monitor communications

in the class action context, they may do

so only in a manner that comports with

Rule 23. This requires a specific record

showing that the communications in ques-

tion constitute particular abuses of the

class action device. Any restriction on

communications must, futhermore, be drawn

to provide the narrowest possible relief

from such abuses. The order entered in

the case.at bar fails to satisfy these

requirements.

The en banc decision of the Court of

o} 3-

Appeals for the Fifth Circuit invali-

dating the non-communication order should

be affirmed.

ARGUMENT

I

GENERAL RESTRICTIONS ON

COMMUNICATIONS CONCERNING CLASS

LITIGATION UNCONSTITUTIONALLY

IMPINGE UPON FIRST

AMENDMENT FREEDOMS

A. COMMUNICATIONS BY PARTIES TO CLASS

LITIGATION AND THEIR COUNSEL ARE

PROTECTED BY THE FIRST AMENDMENT

The order entered in the case at

bar, like the proposed order and rule

found in the Manual, generally prohibits

parties to a class action and their

attorneys from communicating, directly or

indirectly, with potential or actual

members of the class without the prior

approval of the district court. It then

sets forth a non-exclusive list of pro-

hibited communications: (1) solicitation

of legal representation, (2) solicitation

sté<

of fees and expenses from class members,

(3) solicitation of requests to opt

out from the class action, and (4) commu-

nications tending to misrepresent the

nature and status of the litigation.

The communicative activities pro-

scribed by this order, as well as the

order and rule recommended in the Manual,

are protected by the First Amendment to

the United States Constitution. As this

Court has said,

It cannot be seriously

doubted that the First Amend-

ment's guarantees of free

speech, petition and assembly

give [individuals] the right

to gather together for the

lawful purpose of helping and

advising one another in asserting

the rights Congress gave them...,

Statutory rights which would

be vain and futile if [indivi-

duals] could not talk together

freely as to the best course

to follow....And the right...

to advise concerning the need

for legal assistance - and

most importantly, what lawyers

{an individual] could confi-

dently rely on - is an insep-

=} $-

arable party of this

constitutionally guaranteed

right to assist and advise

each other.

Brotherhood of Railroad Trainmen v.

Virginia, 377 U.S. 1, 5-6 (1964). "“Col-

lective activity undertaken to obtain

meaningful access to the courts is a

fundamental right within the protection

of the First Amendment." United Transpor-

tation Union v. Michigan Bar, 401 U.S.

576, 585 (1971).4 It includes efforts to

4 petitioners' suggestion at p.

29, n. 29 of their brief that restrictions

on communications after initiation of

a lawsuit do not impinge upon this right

ignores that access to the courts must

be meaningful. A ban on communications

can effectively deprive formal parties

and class members of meaningful access

to the courts for the redress of grievances.

See discussion infra, pp. 41-45.

~i¢=

finance the costs of litigation. "That

right [of access to the courts] would

be a hollow promise if courts could

deny associations of workers or others

the means of establishing their members

to meet the costs of legal representation."

401 U.S. at 585-586.

The First Amendment's protection

of such activity does not depend on

the nature of the underlying rights

sought to be vindicated. The present

litigation involves the assertion of

civil rights, and therefore, falls squarely

within this Court's decision in NAACP

v. Button, 391 U.S. 415 (1963). However,

the First Amendment does

not protect speech and assembly

Only to the extent it can be

characterized as political.

"Great secular causes with small

ones, are guarded. The grievances

for redress of which the right

of petition was insured, and

with it, the right of assembly,

are not solely religious or

political ones. And the rights

-}9-

of free speech and a free press

are not confined to any field

of human interest."

United Mine Workers v. Illinois Bar

Association, 389 U.S. 217, 224 (1967)

(quoting Thomas v. Collins, 323 U.S. 516,

531 (1945)). See also Great Western

Cities, Inc. v. Binstein, 476 F. Supp.

827, 834 (N.D. I1ll.), aff'd, 614 F.2d 775

(7th Cir. 1979) (according First Amendment

protection to activities of association

Organized to pursue legal remedies for

claimed securities fraud against members

and to advise others of their rights and

recommend legal counsel). Thus, the

First Amendment protects communications

relating to "civil rights" as well as

"commercial" class litigation.

The constitutional protection afforded

the associational activities of parties

involved in class litigation extends to

lawyers retained by them to represent

~18-

their interests. In Brotherhood of Rail-

road Trainmen v. Virginia, this Court

found constitutionally protected a

union's activities which involved

advising injured union members not to

settle any claims for damages without

first seeing a lawyer and recommending

that they consult counsel selected by the

union. The Court held that such activity

could not be enjoined and noted, "of

course, lawyers accepting employment

under this constitutionally protected

plan have a like protection which the

State cannot abridge." 377 U.S. at 8.

See also In re Primus, 436 U.S. 412, 43l-

432 (1978). The extension of such protec-

tion to lawyers recognizes that an attorney

speaks for his client regarding all matters

for which he is retained.

-19-

Protection of lawyers' communications

regarding class litigation derives from

practical necessity as well. As the

Court of Appeals for the Seventh Circuit

stated in invalidating a local rule

prohibiting comment by attorneys involved

in civil litigation:

Sometimes a class of poor

Or powerless citizens challenges,

by way of a civil suit, actions

taken by our established private

or semi-private institutions or

governmental entities....The

lawyer for the class plaintiffs

may be the only articulate

voice for that side of the

case. Therefore, we should be

extremely skeptical about any

rule that silences that voice.

Chicago Council of Lawyers v. Bauer,

522 F.2d at 258.

The solicitation activity prohibited

in this case also is protected by the

First Amendment. Any alleged acts of

solicitation by the respondents’ attorneys

in this litigation involving charges of

=-20-

racial discrimination in employment are

plainly within the rule, enunciated by

this Court in NAACP v. Button and In re

Primus, that solicitation of legal repre-

sentation for the purpose of vindicating

political and civil rights is constitutionally

protected. The fact that respondents

have requested money damages and attorneys'

fees does not deprive solicitation activity

of constitutional protection. See In

re Primus, 436 U.S. at 429-430.

In fact, the Council believes that

the distinction between "public interest"

lawsuits and "commercial" litigation, drawn

by this Court in Ohralik v. Ohio State

Bar Association, 436 U.S. 447 (1978), is

not appropriate in the context of solici-

tation by counsel for formal parties in

purported or actual class litigation.

The class action situation is quite different

=2j-

from the circumstances of Ohralik, where

the solicitation activity in question was

directed at initially obtaining a client

to institute a lawsuit. In contrast, the

attorney for the formal party already has

an individual client, whose interests he

is bound to pursue, and depending on the

stage of the litigation, either purports,

or has been judicially determined, to

represent adequately the interests of the

class. Solicitation of additional class

representatives is usually for the purpose

of insuring sufficient numbers to with-

stand the effects of attrition and possible

dismissal of a suit. Such activity by an

attorney already retained to represent a

formal party whose interests are potentially

or actually the same as those of solicited

class members hardly presents the dangers

of stirring up litigation, assertion of

fraudulent claims, misrepresentation,

=2%=

undue influence, and overreaching poten-

tially posed by solicitation of a prospec-

tive client to institute a lawsuit. Ohralik,

436 U.S. at 461. See Great Western Cities,

Inc. v. Binstein, 476 F. Supp. at 835.

There is no justification for condi-

tioning the right to engage in solicitation

on the nature of the rights asserted

in a class action or the motivation of

legal counsel. Even those who favor

a communications bar do not distinguish

between types of litigation in terms of

the frequency of potential abuses of the

class action device. Moreover, the line

drawn between "commercial" and "civil

rights" litigation is necessarily arbitrary

to some extent, and a distinction based

upon the motivation of legal counsel

has become blurred by the increasing

availability of court-ordered fee awards

under 42 U.S.C. §1988. See Maine v.

=23=

Thiboutot, 48 U.S.L.W. 4859 (U.S. June

25, 1980) (No. 79-838), (42 U.S.C. §1983

encompasses violation of any federal

statute and availability of attorneys'

fees awards under 42 U.S.C. §1988 is not

limited to civil rights actions).

The First Amendment freedoms of

parties to class actions and their counsel

are admittedly not absolute. However,

any restrictions on such rights must

Satisfy strict constitutional standards.

Whether analyzed as a prior or subsequent

restraint on speech, the order entered in

the case at bar fails to fulfill such

requirements.

B. A BLANKET RESTRICTION ON ALL COMMUNI-

CATIONS BETWEEN PARTIES, OR THEIR

COUNSEL, AND CLASS MEMBERS VIOLATES

ESTABLISHED CONSTITUTIONAL STANDARDS

IN THE AREA OF FIRST AMENDMENT

RIGHTS

1. The Non-Communication Order

Is Not Justified By The Need

To Protect A Compelling Counter-

vailing Interest

m7

The non-communication order entered

in this case is a classic example of a

prior restraint, “a predetermined judicial

prohibition restraining specified expres-

sion...." Chicago Council of Lawyers v.

Bauer, 522 F.2d at 248; see Nebraska

Press Association v. Stuart, 427 U.S.

539, 556 (1976). As such, it bears a

heavy presumption against its constitu-

tional validity. Id. at 558; Organization

for a Better Austin v. Keefe, 402 U.S.

415, 419 (1971). The proponents of a

prior restraint must demonstrate that the

expression sought to be restrained "surely

[will] result in direct, immediate and

irreparable damage" to a compelling

public or private interest, New York

Times Co. v. United States, 403 U.S. 713,

730 (1971) (Stewart, J. concurring), or

that it presents a clear and present

=36.

y%

danger to an asserted interest. Thomas

v. Collins, 323 U.S. 516, 530 (1945).

While the fair and proper administra-

tion of justice may justify some restraints

on speech, "it does not authorize any

blanket exception to the First Amendment.”

Rodgers v. United States Steel Corporation,

508 F.2d 152, 162 (3d Cir.), cert. denied,

423 U.S. 832 (1975) (citing Wood v. Georgia,

370 U.S. 375 (1962); Craig v. Harney, 331

U.S. 367 (1947); Pennekamp v. Florida,

328 U.S. 331 (1946); Bridges v. California,

314 U.S. 252 (1941)). Free speech rights

"should not be impaired...unless there is

no doubt that the utterances in question

are a serious and imminent threat to the

administration of justice." Craig v.

Harney, 331 U.S. at 373.

Even if rules or orders restricting

communications concerning class actions

ais an

may not be characterized as prior restraints,

Chicago Council of Lawyers v. Bauer,

522 F.2d at 248-49, they are still subject

to exacting judicial scrutiny. Before

a court can so limit fundamental rights,

there must be a showing that the restraint

on speech protects "a subordinating

interest that is compelling." Bates

v. Little Rock, 361, U.S. 516, 524 (1959).

In the case at bar, the Fifth Circuit

noted that the district court entered

the non-communication order in the absence

of proof of the petitioners' unsworn

charges of abuses by the respondents'

attorneys and without making findings

of fact. 619 F.2d at 464. It concluded

that the court based its order on the

recommendations of the Manual that district

courts enact rules or enter orders limiting

communications in actual or potential

2% =

Class actions in order to protect against

potential abuses of the class action

device. 619 F.2d at 466.

The fact that abuses of the class

action device have occurred in scattered

cases or the remote possibility that the

attorneys or parties in this action might

commit some unknown abuse in the future

does not establish a threat to the fair

administration of justice sufficient to

justify the entry of a wide-ranging

communications ban. Moreover, many of

the so-called abuses mentioned in the

Manual in support of a communications

bar, e.g., seeking a declaratory judgment

as to the liability of one defendant,

seeking to withdraw class allegations in

an effort to effectuate an individual

settlement, and negotiating a settlement

with a second set of attorneys after the

=28-

first set had declined the offer, would

not be prevented by a non-communication

order. It is questionable whether other

potential abuses mentioned in the Manual,

e.g., solicitation of additional plain-

tiffs in class actions already filed, are

actually abuses at all. See Zarate v.

Younglove, 86 F.R.D., 80, 98 (C.D. Ca.

1980).

Thus, it is unclear what interests

the order is intended to protect, how the

prohibited communications threaten any

legitimate interest, or whether the order

is a reasonable means of protecting a

countervailing interest. Restriction of

First Amendment rights cannot be bottomed

on such uncertainty, especially in light

of the Manual's recognition that "generally,

the experience of the courts in class

actions has been favorable.... [A]buses

-29-

are the exception in class action litiga-

tion rather than the rule." Id. at 36-

37.

2. The Restriction On All Communi-

cations With Class Members

Is Impermissibly Overbroad

The First Amendment requires that

restrictions on speech and associational

activities be drawn carefully to avoid

needless inhibition of constitutional

rights. "[(Tjhe limitation of First

Amendment freedoms must be no greater

than is necessary or essential tc the

protection of the particular government

interest involved." Procunier v. Martinez,

416 U.S. 396, 413 (1974). A legitimate

and substantial government interest

may not be protected "by means that

broadly stifle fundamental personal

liberties when the end can be narrowly

achieved. The breadth of legislative

abridgement must be viewed in light

=30-

of less drastic means for achieving

the same basic purpose." Shelton y.

Tucker, 364 U.S. 479, 488 (1960). See

Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620, 637 (1980).

The order here, like its counterparts

in the Manual, suffers from overbreadth.

The prohibition against all communications,

direct or indirect, undoubtedly restricts

protected speech and associational activities

that pose no conceivable threat to the

fair administration of justice or any

other legitimate interest. In fact,

it encompasses communications that actually

would facilitate the fair and effective

functioning of the judicial system.

Only a narrowly-tailored order limiting

only those communications which constitute

specific abuses of the class action

=3i=

device can satisfy constitutional stan-

dards.° Limitations on freedom of speech

and association must not go beyond what

is necessary to protect an established

countervailing interest. Talley v.

California, 362 U.S. 60, 64-65 (1960).

3. The Non-Communication Order

Is Unconstitutionally Vague

Restrictions on fundamental liberties

must satisfy constitutional standards

> The special treatment of consti-

tutionally protected speech in the order,

and in the most recent version of the

rule proposed in the Manual, does not

cure its overbreadth. An attorney or

party who communicates with class members

in the belief that such communications

are constitutionally protected may,

nonetheless, be called upon to establish

the basis for his belief, thus risking

a possible contempt citation. The chilling

effect on the exercise of First Amendment

rights is surely as great as an outright

prohibition of all speech.

=32<

of specificity. Specificity is especially

critical where, as here, rights of free

speech and association are involved.

[W]here a vague statute

"abut[s] upon sensitive areas

of basic First Amendment freedoms,"

it "operates to inhibit the exer-

cise of those freedoms." Uncer-

tain meanings inevitably lead

citizens to 'steer far wider of

the unlawful zone'...than if the

boundaries of the forbidden areas

were clearly marked."

Grayned v. City of Rockford, 408 U.S.

104, 109 (1972) (footnotes omitted). A

restriction speech "so vague and

indefinite in form...as to permit within

the scope of its language the punishment

of incidents fairly within the protection

of the guarantee of free speech is void

on its face as contrary to the Fourteenth

Amendment." Winters v. New York, 333

U.S. 507, 509 (1948).

The order entered here, like its

model in the Manual, is replete with

-33-

vague terms offering no guidance to

attorneys, parties, or judges as to

what behavior is permitted and what

is prohibited. For example, the "indirect"

communication prohibited by the order

is susceptible of no limiting definition.

Under this language, respondents or

their attorneys risk violating the order

if they respond to a reporter's questions

concerning the class action, because

they thereby may be communicating "indirectly"

with class members. The ban on all

communications certainly would encompass

requests for information from class

members. A lawyer therefore, risks

punishment if he seeks information relevant

to his client's case from persons with

knowledge of the facts because they may

be potential class members. As a result

he may not satisfy his obligation to his

client to investigate the facts fully.

-34-

Even the specific, but non-inclusive,

prohibitions of the order are subject to

widely varying interpretations. The line

between prohibited "solicitation" and the

mere transmission of information is diffi-

cult to draw, and the two messages are

often part and parcel of the same communi-

cation.® The order offers no guidelines

6 This Court recently reiterated

its view that solicitation is often in-

extricably entwined with First Amendment

activity:

Solicitating financial

Support is undoubtedly subject

to reasonable regulation but

the latter must be undertaken

with due regard for the reality

that solicitation is character-

istically intertwined with

informative and perhaps persuasive

speech seeking support for

particular causes or for particular

views on economic, political

Or social issues, and for the

reality that without solicitation

the flow of information would

likely cease.

Schaumburg v. Citizens for a Better Environ-

ment, 444 U.S. at 632.

-35-

for distinction. The prohibition on

communications that tend to misrepresent

the action or reflect adversely on the

court, the parties, or their counsel

likewise provide no indication of what

is prohibited and what is permitted.

Such vagueness forces parties and their

attorneys to refrain from speaking at

all in order to protect themselves against

possible remote effects on their comments.

See Chicago Council of Lawyers v. Bauer,

522 F.2d at 259 (prohibition against

public comment on matter that is "reasonably

likely to interfere with a fair trial"

is unconstitutionally vague).

The order entered in this case,

as well as the proposed rule and order

after which it is modelled, do not

comport with constitutional standards

where restriction of First Amendment

-36-

freedoms is involved. Specific remedies

and sanctions for specific abuses, such

as discipline of attorneys who exceed

ethical limitations in communicating with

class members, are available and satisfy

constitutional requirements. Abuses of

the class action device are a legitimate

area of concern for the district courts.

At the same time, no court can ignore

speech and associational rights guaranteed

by the First Amendment in attempting to

deal with such abuses.

II

BROAD RESTRICTIONS, BY ORDER

OR RULE, UPON COMMUNICATIONS

BETWEEN PARTIES OR THEIR COUNSEL

AND ACTUAL OR POTENTIAL CLASS

MEMBERS EXCEED THE AUTHORITY

OF THE DISTRICT COURTS

The authority of the district courts

to prescribe rules and enter orders re-

garding class litigation is limited by

Fed. R. Civ. P. 23(d) and 83 and by

=37-

28 U.S.C. §2071. Rule 23(d) states

that the court may make “appropriate

orders" in the conduct of class actions.

Rule 83 permits the district courts to

"make and amend rules governing [their]

practice not inconsistent with" the Federal

Rules of Civil Procedure, and in cases

not provided for by rule, to "regulate

their practice in any manner not inconsis-

tent with these rules." Section 2071

allows them to prescribe rules which

"shall be consistent with Acts of Congress

and rules of practice and procedure pre-

scribed by the Supreme Court." Rules and

orders affecting class litigation must,

therefore, comport with the policies of

Fed. R. Civ. P. 23, which governs the

initiation and maintenance of class actions.

Rodgers v. United States Steel Corporation;

Zarate v. Younglove, 86 F.R.D. 80, 93-94

~ 38<

(C.D. Cal. 1980).

The objectives of Rule 23 include

the efficient resolution

of the claims and liabilities

of many individuals in a single

action, the elimination of repe-

titious litigation and possibly

inconsistent adjudications in-

volving common questions, related

events, or requests for similar

relief, and the establishment of

an effective procedure for those

whose economic position is such

that it is unrealistic to expect

them to seek to vindicate their

rights in separate lawsuits.

7 C. Wright and A. Miller, Federal Practice

and Procedure §1754, p. 343 (1972) [herein-

after cited as "Wright and Miller"]. See

also Hohmann v. Packard Instrument Company,

399 F.2d 711, 714-715 (7th Cir. 1968);

Dubose v. Harris, 434 F. Supp. 227, 230

(D. Conn. 1977); Rutherford v. United

States, 429 F. Supp. 506, 508 (W.D. Okla.

1977) (citing Wright and Miller); Contract

Buyers League v. F&F Investment, 48

F.R.D. 7, 12-13 (N.D. I11. 1969). This

-39-

Court recently summarized the purpose of

class actions brought pursuant to Fed. R.

mawe BP. 23() (3) :

The aggregation of indivi-

dual claims in the context of a

class-wide suit is an evolutionary

response to the existence of

injuries unremedied by the regula-

tory action of government. Where

it is not economically feasible

to obtain relief within the

traditional framework of a mul-

tiplicity of small individual

suits for damages, aggrieved

persons may be without any

effective redress unless they

may employ the class-action

device.

Deposit Guaranty National Bank v. Roper,

445 U.S. 326, 339 (1980).

In Califano v. Yamasaki, 442 U.S.

682, 701 (1979), it commented upon the

desirability of class litigation in

certain cases:

[W]e note that class relief

for claims such as those presented

by respondents in this case is

peculiarly appropriate. The issues

involved are common to the class

as a whole. They turn on questions

-40-

of law applicable in the same

manner to each member of the

class....{E]Jach individual

claim has little monetary

value. It is unlikely that

differences in the factual

background on each claim will

affect the outcome of the legal

issue. And the class-action

device saves the resources of

both the courts and the parties

by permitting an issue poten-

tially affecting every social

security beneficiary to be

litigated in an economical

fashion under Rule 23.

Rules and orders, such as those

recommended in the Manual, the order

entered in the case at bar, and former

Rule 22 of the District Court for the

Northern District of Illinois, which

impose far-reaching restrictions on the

ability of litigants and attorneys in

actual or purported class actions to

communicate with class members, conflict

squarely with the policies embodied in

Rule 23 and severely impede the proper

conduct of class litigation. By limiting

virtually all discussion concerning class

ah la

actions they deprive Rule 23 of much of

its force. Such restrictions deny parties

and their counsel access to crucial infor-

mation relating to the number of potential

claimants or defendants involved in a

particular action, the size and similarity

of their claims or defenses, and the

appropriateness of a formal party as

class representative. The proponents

of a communications bar have themselves

recognized that "[{iJn many such cases

class members will have knowledge of

facts relevant to the litigation and to

require a party to develop the case without

contact with such witnesses may well

constitute a denial of due process." Manual,

Do. 34.

The lack of such information makes

it exceedingly difficult, if not impossible,

for parties and their attorneys to make

an informed decision as to the propriety

w4 2=

and feasibility of proceeding with liti-

gation on a class basis. Restrictions

on communication thus, hinder meaningful

access to the courts by actual or potential

members of a class, see Zarate v. Younglove,

86 F.R.D. at 97 (it is especially desirable

to involve class members in Rule 23(b) (2)

class actions because they do not have

the right to opt out of the class), and

discourage the resolution of disputes

common to many in the class action form.

Restrictions on communication also

interfere with the effective, fair and

efficient functioning of the judicial

system. The trial court's decision on

the propriety of class certification

depends largely on evidence provided by

counsel for the formal parties. If counsel

cannot freely obtain information concerning

the size of a potential class, the nature of

the claims involved, the interests of the

«4 3<

potential class members, and the adequacy

of the class representation, such infor-

mation will, most likely, never reach the

court. The unavailability of information

on the very factors which govern the

Outcome of the class certification issue

may often lead the district court to an

improper decision to certify a class or

to deny class certification.

The hazards created by broad non-

communication orders do not cease with

class certification. Once a class is

certified, restrictions on communication

with class members present formidable

obstacles to class representatives and

their counsel in fulfilling their obliga-

tions to members of the class and in

effectivelyconducting litigation. Such

restrictions interfere with their duty to

“fairly and adequately protect the interests

-44-

of the class" as required by Fed. R. Civ.

P. 23(a) (4). A communications bar disrupts

the development of litigation strategy,

discovery, and trial preparation for

plaintiffs and defendants alike, and

inhibits the flow of information to class

members on matters affecting their interests.

Moreover, unless a sufficient number of

class representatives can be obtained

through free communication with class

members, the inevitable effects of attri-

tion, particularly in long, complex cases,

may result in dismissal of a meritorious

Suit.

The fact that communications are

subjected to the prior approval of the

district court rather than absolutely

prohibited does not mitigate the deleterious

effects on the commencement and maintenance

of class actions. A requirement that all

-45-

proposed communications be submitted to

the court and opposing counsel may deter

counsel for class representatives from

making necessary contacts with class

members in light of the duty to maintain

the confidentiality of attorney-client

communications. Furthermore, obtaining

prior court approval of every proposed

communication is not feasible when such

communications may necessarily be on an

Ongoing basis. A rule or order that

requires prior court approval of all

communications with class members will,

in a practical sense, stop such contacts

almost as effectively as an absolute

prohibition on communications.

In a frequently-cited, comprehensive,

and thoughtful article entitled Developments

in the Law -- Class Actions, 89 Harv. L.

Rev. 1318 (1976), the authors have summarized

-46-

the serious problems that orders such as

the one involved here pose for the effec-

tive maintenance of class actions:

The present practice in

some federal courts of prohi-

biting communications with the

class by both the class attorney

and the class opponent in the

absence of prior court approval,

although responsive to concerns

of abuse, seems overbroad and

potentially dysfunctional. Class

attorneys and class opponents

may limit their communications

with a class in order to avoid

the time consuming process of

obtaining prior judicial clear-

ance and limit the risk of anta-

gonizing the judge. As a result,

class attorneys may be handicapped

in their efforts to obtain a

picture of the different situa-

tions of class members, informa-

tion-gathering and necessary

business communications by class

opponents may be impaired, class

members may be denied legal

advice, and the court itself may

be deprived of information poten-

tially relevant to its litigation

decision.

Id. at 1600-01.

The district courts are not absolutely

without power to monitor communications

-47-

in the class action context. However, in

order to avoid conflict with the important

policies of Rule 23, any restriction on

communications concerning actual or poten-

tial class litigation must be based upon

"a specific record showing by the moving

party of the particular abuses by which

it is threatened," and must be formulated

to afford "the narrowest possible relief

which would protect the respective parties."

Coles v. Marsh, 560 F.2d 186, 189 (3d

Cir.), cert. denied sub nom., Blue Cross

v. Marsh, 434 U.S. 985 (1977). This

standard is not met where, as here,

a non-communication order is based solely

on theoretical abuses or the occurrence

of activities which encourage participa-

tion in the litigation of common claims

and provide potential class members with

information concerning the nature of a

Suit commenced on their behalf. Id.

-48-

Rules which generally constrain

communications between formal parties or

their counsel and class members in every

potential and actual class action are

necessarily made in the absence of any

specific showing of actual or imminent

abuse of the class action device. Hence,

they too must fall when viewed in the

light of the important objectives served

by Rule 23. Rodgers v. United States

Steel Corporation, 508 F.2d at 163-164.

CONCLUSION

For the foregoing reasons, amicus

Curiae the Chicago Council of Lawyers

respectfully urges that the decision

-~49-

of the Court of Appeals below should

be affirmed.

Respectfully submitted,

Richard F. Watt

Martha A. Mills

Ellen J. Morgan

COTTON, WATT, JONES,

KING & BOWLUS

One IBM Plaza

Suite 4750

Chicago, Illinois 60611

(312) 467-0590

Attorneys for Amicus

Curiae The Chicago

Council of Lawyers

Dated: March 2, 1981

-50-

CERTIFICATE OF SERVICE

It is hereby certified that three

(3) copies of the foregoing Brief of

the Chicago Council of Lawyers as Amicus

Curiae in Support of Respondents have

been served this 2nd day of March, 1981,

by United States Mail, postage prepaid,

upon the following counsel of records:

Patrick O. Patterson, Esq.

10 Columbus Circle

Suite 2030

New York, New York 10019

William G. Duct, Esq.

Post Office Box 3725

Houston, Texas 77001

Carl A. Parker, Esq.

449 Stadium Road

Post Arthur, Texas 77640

Martha A. Mills

Attorneys for Amicus

Curiae

mS