Opposition — Alside, Inc. v. Weiner

i U.S,

Supreme Court of the Anited Ciates..

IN THE UL 27 1993 3 |

Octoser Term, 1982 --——__ “3 |

Ones

No. 82-2134

In Re: Exterior Siding and Aluminum

Coil Antitrust Litigation (MDL 454)

ALSIDE, INC., et al.,

Petitioners,

Vs.

THE HONORABLE CHARLES R. WEINER, Judge,

United States District Court,

Sitting by Designation in the

District of Minnesota,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

CocHRANE & BRESNAHAN Mucu SHELISsT FREED

John A. Cochrane DENENBERG AMENT & EGER, P.C

Stewart C. Loper Michael J. Freed

360 Wabasha, #500 (Counsel of Record)

St. Paul, MN 55102 Stuart M. Widman

(612) 298-1950 Suite 2323

Attorneys for Real Parties in 135 South LaSalle Street

Interest Plaintiffs Hoyt Chicago, IL 60603

Construction Company, Inc. (312) 346-3100

and Minnesota Exteriors, Inc. Attorneys for Real Party in

iiieattan et Medes Interest Plaintiff Riverside

2 North LaSalle Street Builders, Inc.

Chicago, IL 60602 STEVEN ACKERMAN

(312) 346-8181 120 South LaSalle Street

Attorney for Real Parties in Chicago, IL 60603

Interest Plaintiffs Western (312) 269-5850

Builders, Inc. and Lagar Attorney for Real Party in

“onstruction Company Interest Plaintiff Midwest

Builders & Materials, Inc.

Tee”

i

PARTIES INVOLVED

Although the Honorable Charles R. Weiner is designated

as the respondent in the Petition for Writ of Certiorari,

the real parties in interest, on whose behalf this brief in

opposition is submitted, are the plaintiffs Hoyt Construc-

tion Company, Inc., Minnesota Exteriors, Inc., Western

Builders, Inc., Lagar Construction Company, Midwest

Builders & Materials, Inc., and Riverside Builders, Inc.

f

ii

bets

ee ter

ii

TABLE OF CONTENTS

PAGE

IIE ovens os obivs dqncareelebie vid thaaee i

GUE MIE clea io Cu he stn awh ahs eh.ceee Cees iii

RE DUMITUIN Si obec hckcwecccnededetees iv

Counterstatement of the Case .............0eeeeeees 1

Reasons for Denying the Writ ..................005. 5

I. The Denial of the Writ of Mandamus is in

Accord with the Law of This Court and is Not

in Conflict With the Law of Any Other Circuit. 6

A. Congress and This Court Have Established

a Policy Against Appellate Review of Non-

ONE, SOPUUR Ui bd cd aks v0.0 heen eb ¥eevgan 6

B. No Special Standard is Necessary to Apply

the Law of the Case Doctrine in Multidis-

SINE SI 5 0 dis ons cbban ches chineoes 8

C. Denial of the Writ of Mandamus in This

CNG WE FOIE ns oc Uae Fain cen s sc geaweds 12

II. An Equally Divided Vote by a Federal Court

of Appeals Sitting Zn Banc Affirms the District

ER EE rere here Oe Pr ee 14

A. The Eighth Cireuit Practice is to Affirm the

Judgment of the District Court .......... 14

B. The Practice of Other Courts of Appeals is

to Affirm a Lower Court Judgment with an

Equally Divided En Banc Ruling ......... 14

Comclasion .......ccccccccccvsccsvcnscsevcvscesens 16

iii

APPENDIX INDEX

Appendix A—Procedural History ..............++: A-l

Appendix B—Designation of District Judge for Serv-

ice in Another Circuit ............. B-1

Appendix C—Letter of transmittal dated July 20,

1981 to The Honorable Charles R.

SERN 5s owas Rd ae Se Ria evbscenee C-1

iv

TABLE OF AUTHORITIES

CASES:

ACF Industries, Inc. v. Guinn, 384 F.2d 15 (5th Cir.

1967), cert. denied, 390 U.S. 949 (1968) ............

Alexander v. Gino’s Inc., 21 Fair Empl. Prac. Cas.

(BNA) 183 (E.D.Pa. 1979), aff'd, 621 F.2d 71 (3d

Cir. 1980), cert. denied, 449 U.S. 953 (1980) .......

Alleghany Corp., In Re, 634 F.2d 1148 (8th Cir. 1980) .

Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33

SEE cA Card c wks Sahn Salta dessa A oe veiled wie tue Ue ON

PAGE

Bauman v. United States District Court, 557 F.2d 650 |

SA REG. os dens vio eS Rete woke geaeh Seldaewes

Biggers v. Tennessee, 390 U.S. 404, rehearing denied,

Sr En EE LOAD aa cic tins basses eeee He bdeD-ces

Bishop v. Wood, 498 F.2d 1341 (1974), aff'd, 426 U.S.

ME) GR URREN Rb Genbank 6 00d p0) oo edeg@iite Views

Caesars Palace Securities Litigation, In Re, 360

PD, BOO AB . ADTE) oie ec ccasvcscdveves

Carmichael v. Eberle, 177 U.S. 63 (1900) ............

Cement and Concrete Antitrust Litigation, In Re,

1979-1 Trade Cas. (CCH) { 62,502 (D. Ariz. 1979) ..

Commonwealth of Penn. v. Local Union 542, Interna-

national Union & Operating Engineers, 648 F.2d 923

(3d Cir. 1981), rev’d on other grounds, 102 S.Ct.

AED. ohn \e'bc'din be 0: We RBC O oan ob da wis olelrale

Coopers ¢ Lybrand v. Livesay, 437 U.S. 463 (1978) ...

Corrugated Container Antitrust Litigation, In Re, 80

Vie Mee Ce DO TOTS) so cksicccceccceeeubeves

District Council of the Port of Philadelphia v. Seatrain

Lines, Inc., 377 F.Supp. 1278 (E.D.Pa. 1973) .......

Drake Bakeries Inc. v. Local 50 American Bakery €& C.

Wigs, 294 F.2d 399 (2d Cir. 1961), aff'd on other

grounds, 370 U.S. 254 (1962) ......... ccc eee eeeeee

15

15

7, 8,13

v

Exterior Siding and Aluminum Coil Antitrust Litiga-

tion, 538 F.Supp. 45 (D.C. Minn. 1982) ............

Fine Paper Antitrust Litigation, In Re, 82 F.R.D. 143

i PRE IU A'S Vins 8 5108s 64:60 Bs vad e ba% 0 oe

Glassine and Greaseproof Paper Antitrust Litigation,

In Re, 88 F.R.D. 302 (E.D. Pa. 1980) .............

Hackett v. General Host Corp., et al. 1972 Trade Cas.

(CCH) ¥ 73,879 (E.D.Pa. 1970) ................2..

Hayman Cash Register Co. v. Sarokin, 669 F.2d 162

MEER al SHUG SURI 5 c\e bv dle coe ve oetidee

Hedges Enterprises, Inc. v. Continental Group, Inc., 81

SMT MOP, BOUO Do aivie's oe vcccscvopenscens

Impervious Paint Industries v. Ashland Oil, Inc.,

1980-1 Trade Cas. (CCH) § 63,138 (W.D. Ky. 1980)

Interpace Corp. vy. City of Philadelphia, 488 F.2d 401

EN a's WEREUIANS Ws op bus ccc c ecu eehuuss We

J. H. Cohn & Co. v. American Appraisal Associates,

628 F.2d 994 (7th Cir. 1980) ..............cceeees

Kramer v. Scientific Control Corp., 67 F.R.D. 98

(E.D.Pa. 1975) dismissed in part, reversed in part on

other grounds, 534 F.2d 1085 (3d Cir.), cert. denied

sub nom. Arthur Andersen & Co. v. Kramer, 429 U.S.

Rass AUG Os CUE Wb vd pee he pce 6 sees

La Buy v. Howes Leather Co., 352 U.S. 249 (1957) ....

McDonnell Douglas Corp. v. U. 8. District Court for the

Central District of California, 523 F.2d 1083 (9th

Cir. 1975), cert. denied sub nom. Flanagan v. Mc-

Dommell Douglas Corp., 425 U.S. 911 (1976) .......

Moses H. Cone Memorial Hospital v. Mercury Con-

struction Corp., 103 S.Ct. 927 (1983) ..............

Multi-Piece Rim Products Liability Litigation, In Re,

653 F.2d 671 (D.C. Cir. 1981) ...............0.05.

Otten v. Stonewall Insurance Co., 538 F.2d 210 (8th

UE hd i'd one oak vims's oie 000 vin bs 08

PAGE

14

13

11

13, 14

vi

Plumbing Fixtures Cases, In Re, 298 F.Supp. 484

C8 kt 8 Gy | Re eee ee Pe yy ren ae

Ramsey v. United Mine Workers of America, 416 F.2d

655 (6th Cir. 1969), rev’d. on other grounds, 401 U.S.

TOR CATED wknd cnn dhe vaivpsigied hace §é peewee rpeke

Roche v. Evaporated Milk Association, 319 U.S. 21

CROMPD Acc vn caw de hg te See ORP Re we nad aoe ne nave e hee

Schmidt v. Fuller Brush Co., 527 F.2d 532 (8th Cir.

RE Gas vel oe BNW COIN dais Cheb vane gd cuaeeeennan

Sley v. Jamaica Water & Utilities, Inc., 77 F.R.D. 391

CERRY DARL ROED in binaky Sedans CaO RNS? a 6k ace heaRE

Swarb v. Lennox, 314 F.Supp. 1091 (E.D. Pa. 1970) ..

State of Illinois v. Harper € Row Publishers, Inc., 301

F.Supp. 484 (N.D. Ill. 1969) .........cceeeeeeeeees

Tinker v. Des Moines Independent Community School

District, 383 F.2d 988 (Sth Cir. 1967), rev’d on other

grounds, 393 U.S. 503 (1969) ........ cee eee eee ees

The Upjohn Co. Antibiotic Cleocin Prods. Liability

Litigation, In Re, 664 F.2d 114 (6th Cir. 1981) .....

United States v. Kimes, 458 F.2d 36 (4th Cir. 1972) ..

United States v. Clavey, 578 F.2d 1219 (7th Cir. 1978),

cert. denied, 439 U.S. 954 (1978) ..........eceeees

United States v. Geders, 585 F.2d 1303 (5th Cir. 1978),

cert. denied, 441 U.S. 922 (1979) ........ ccc eeeee

United States v. Haley, 371 U.S. 18 (1962) ..........

United States v. Mandel, 602 F.2d 653 (4th Cir. 1979),

cert. denied, 445 U.S. 961 (1980) ............0e eee

United States v. Ritter, 273 F.2d 30 (10th Cir. 1959),

cert, denied, 362 U.S. 950 (1960) ......... 0. cee eeee

Will v. United States, 389 U.S. 90 (1967) ..........05.

PAGE

Statutes anp Rugs:

Re gy Ge ae

2} oa) Se

28 U.8.C. $1291 .......

28 U.S.C. ¢ 1292(b)

28 U.S.C. § 1406(a)

28 U.S.C. § 1407 .......

Fed. R. Civ. P. 23 ......

kk 50: Gaara

Fed. R. App. P. 47 .....

MISCELLANEOUS:

40 N.Y.U.L. Rev. 568 (1965)

vii

PAGE

IN THE

Supreme Court of the Anited States

October Term, 1982

No. 82-2134

In Re: Exterior Siding and Aluminum

Coil Antitrust Litigation (MDL 454)

ALSIDE, INC., et al.,

Petitioners,

VB.

THE HONORABLE CHARLES R. WEINER, Judge,

United States District Court,

Sitting by Designation in the

District of Minnesota,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Plaintiffs respectfully request this Court to deny the

Petition for a Writ of Certiorari for the reasons set forth

below.

COUNTERSTATEMENT OF THE CASE

Petitioners are defendants in the multidistrict Aluminum

Siding Antitrust Litigation, M.D.L. 454. By their Petition,

they seek to overturn a decision of the Eighth Circuit sit-

ting en banc refusing to issue a writ of mandamus to com-

pel a transferee district court judge to vacate an order

certifying a class.’

1 For a chronology of events, see the Procedural History, Ap-

pendix A.

2

M.D.L. 454 consists of four price-fixing antitrust class

actions filed by six named plaintiffs in the United States

District Courts for the District of Minnesota, the Northern

District of Illinois, and the Northern District of California.*

Plaintiffs have alleged that, over a period of many years,

the defendants monopolized and conspired to raise, fix,

maintain or stabilize the price of aluminum siding and coil

throughout the United States in violation of Sections 1 and

2 of the Sherman Act (15 U.S.C. §§ 1 and 2).

The first action was filed by plaintiffs Hoyt Construction

Company, Inc. (Hoyt) and Minnesota Exteriors, Ince.

(MEI) in 1975 in the District of Minnesota. The district

court (Alsop, J.) denied plaintiffs’ request for class certif-

ication, concluding that plaintiffs were limited to the Min-

neapolis/St. Paul area and that the interests of Hoyt and

MEI were not sufficient to ensure vigorous prosecution of

the claims. (Memorandum Opinions, August 24, 1978, Jan-

uary 21, 1980, and February 8, 1980, Petition, Appendices

A-D).

In 1980, plaintiffs Western Builders, Inc. (Western) and

Lagar Construction Company (Lagar) filed an action in

the Northern District of California and plaintiff Midwest

Builders and Materials, Inc. (Midwest) filed an action in

the Northern District of Illinois. These cases were also filed

as class actions against the defendants named by Hoyt and

MEI.

2 Hoyt Construction Company, Inc., et al. v. Alside, Inc., District

of Minnesota, Fourth Division, Civil Action No. 4-75-257; Western

Builders, Inc., et al. vy. Alside, Inc., et al., Northern District of

California, Civil Action No. 80 C 4400; Midwest Builders and

Materials v. Alside, Inc., et al., Northern District of Illinois,

Eastern Division, Civil Action No. 80 C 6804; Riverside Builders,

Inc. v. Alside, et al., Northern District of Illinois, Eastern Division,

Civil Action No. 82 C 1027.

3

In January, 1981, defendants filed a motion before the

Judicial Panel on Multidistrict Litigation to consolidate the

pending cases pursuant to 28 U.S.C. § 1407. This motion

was filed prior to the filing of any motion for class certifi-

cation by Western, Lagar or Midwest. The Panel found

that the actions involved common questions of fact and

transferred the Western, Lagar and Midwest cases to the

District of Minnesota for consolidated or coordinated pre-

trial proceedings with the Hoyt and MEI case. The judge

appointed to sit by designation, the Honorable Charles R.

Weiner, had previously been appointed to sit as a district

judge in the District of Minnesota (Appendix B).*‘

After transfer of the cases, all plaintiffs filed a joint

motion for class certification with Judge Weiner. Judge

Weiner ordered the parties to file supplemental briefs on

the class certification issue by July 20, 1981. A pretrial

conference with all parties represented was held prior to

the due date for the briefs and none of the defendants re-

quested an extension of time to file.

On July 20, 1981, plaintiffs timely filed their supplemen-

tal class brief, a revised affidavit of their economist, and

exhibits (Appendix C). Defendants, however, did not file

* The Petition, at page 5, incorrectly states that “the parties”

moved for multidistrict consolidation.

* Judge Weiner is experienced in class action matters and has

both granted and denied class certification in the following pub-

lished cases: In re Exterior Siding and Aluminum Coil Antitrust

Litigation, 538 F.Supp. 45 (D.C. Minn. 1982) (granted); In re

Caesars Palace Securities Litigation, 360 F.Supp. 366 (S.D.N.Y.

1973) (granted); Swarb v. Lennox, 314 F.Supp. 1091 (E.D.Pa.

1970) (granted); District Council of the Port of Philadelphia v.

Seatrain Lines, Inc., 377 F.Supp. 1278 (E.D. Pa. 1973) (denied);

Alexander v. Gino’s, Inc., 21 Fair Empl. Prac. Cas. (BNA) 183

(E.D.Pa. 1979), aff'd, 621 F.2d 71 (3d Cir. 1980), cert. denied,

449 U.S. 953 (1980) (denied); Hackett v. General Host Corp.,

et al. 1972 Trade Cas. (CCH) { 73,879 (E.D.Pa. 1970) (denied).

4

any brief, affidavit or exhibits. On August 3, 1981, Judge

Weiner entered an order certifying the class.*

Plaintiffs’ papers presented Judge Weiner with changed

facts and law. For example, the filing of three new cases

with four new corporate plaintiffs from various parts of

the United States had resolved Judge Alsop’s earlier con-

cerns regarding the typicality and adequacy of the class

representatives (8th Cir. Opinion of December 29, 1982,

dissent of Arnold, J., Petition, Appendix, H-17). Moreover,

the Panel, in consolidating the cases, had found that there

were common issues of fact. Finally, subsequent to Judge

Alsop’s rulings, several significant national antitrust class

action decisions were issued granting certification in cir-

cumstances similar to this case.®

After the entry of the order certifying the class, defend-

ants filed a motion to vacate the class certification order or,

alternatively, for certification pursuant to 28 U.S.C. 4 1292

(b). While this motion was being briefed, defendants filed

a petition for a writ of mandamus. After full briefing and

oral argument, defendants’ motion was denied by memo-

randum order of January 5, 1982. (Petition, Appendix G).

5 Defendants complain that the class action order was entered

without benefit of briefing by them (Petition, 4). This only occurred

because defendants failed to file their papers when due.

*The new cases cited to Judge Weiner by plaintiffs included:

In Re Corrugated Container Antitrust Litigation, 80 F.R.D. 244

(S.D. Tex. 1978) ; In Re Fine Paper Antitrust Litigation, 82 F.R.D.

143 (E.D. Pa. 1979); In Re Glassine and Greaseproof Paper Anti-

trust Litigation, 88 F.R.D. 302 (E.D. Pa. 1980); Hedges Enter-

prises, Inc. v. Continental Group, Inc., 81 F.R.D. 461 (E.D. Pa.

1979) ; Impervious Paint Industries v. Ashland Oil Inc., 1980-1

Trade Cas. (CCH) § 63,138 (W.D. Ky. 1980) ; In Re Cement and

Concrete Antitrust Litigation, 1979-1 Trade Cas. (CCH) { 62,502

(D. Ariz. 1979).

5

In January, 1982, defendants filed a second petition for

mandamus.’ A panel of the Eighth Circuit granted the

writ by a two-to-one decision. Judge Arnold dissented,

and in a detailed opinion, stated that the majority, in

granting mandamus, had opened “too wide a hole in the

final-judgment rule”, contrary to controlling precedents of

this Court and earlier decisions of the Eighth Circuit.

Judge Arnold also stated that the majority had misapplied

the “law of the case” doctrine in that there never had been

a class certification ruling in the three new consolidated

cases. (Petition, Appendix, H-12 and H-16).

In January, 1983, plaintiffs filed their petition for a

rehearing en banc. In February, 1983, the full court of

appeals granted the petition, vacated the decision of the

panel, and set the mandamus petition for rehearing. On

March 28, 1983, after oral argument, the writ of mandamus

was denied by an equally divided court. (Petition, Ap-

pendix I).

REASONS FOR DENYING THE WRIT

The Petition does not meet the standards of Rule 17 of

this Court. Defendants have failed to show that the Eighth

Cireuit’s decision conflicts with the decisions of this Court

or any court of appeals, that the Eighth Circuit departed

from the normal course of judicial proceedings, or that the

Petition raises an important question of federal law which

this Court has not previously decided but should. Further,

the Petition ignores the legislative and judicial policy

against appellate review of non-final orders, which policy

itself presents a controlling reason to deny the writ.

The Court of Appeals did nothing more than exercise its

discretion not to issue a writ of mandamus to compel the

7 The first petition was voluntarily dismissed by defendants after

Judge Weiner set defendants’ motion for argument. After the

second petition was filed, the Panel also transferred Riverside

Builders, Inc. v. Alside, et al., Northern District of Illinois, Civil

Action No. 82 C 1027 (Riverside), to the District of Minnesota.

6

district court to vacate a class certification order. Similarly,

the district court did nothing more than exercise its discre-

tion to certify a class on the basis of the record before it

at the time of certification, which was well within its

judicial power under Rule 23. The class certification order

did not constitute a usurpation of judicial power by the

district court warranting a writ of mandamus, and the

Eighth Cireuit did not abuse its discretion in refusing to

issue a writ. Neither of these discretionary rulings merit

review by this Court.

Nor does the fact that Judge Weiner was a transferee

judge in a multidistrict case lend any significance to an

otherwise routine class certification order. Judge Weiner’s

refusal to follow Judge Alsop’s earlier order denying cer-

tification presents no meaningful issue regarding the “law

of the case” doctrine. Judge Weiner had new facts, new

law and, most importantly, three new cases before him

which were not even filed when Judge Alsop denied certifi-

cation. The doctrine of “law of the case” was neither

breached nor applicable.

I

THE DENIAL OF THE WRIT OF MANDAMUS IS IN

ACCORD WITH THE LAW OF THIS COURT AND IS

NOT IN CONFLICT WITH THE LAW OF ANY OTHER

A. Congress and This Court Have Established A Policy

Against Appellate Review of Non-Final Orders

Defendants seek review of the court of appeals’ refusal

to issue a writ of mandamus requiring a district court

judge to vacate a discretionary order of class certification.

Issuance of a writ to review this routine discretionary

ruling is unnecessary, would open a wide hole in the final

judgment rule, 28 U.S.C. § 1291, and would invite litigants

7

dissatisfied with class action rulings to pursue piecemeal

appeals contrary to established legislative and judicial

policy. Coopers € Lybrand v. Livesay, 437 U.S. 463, 471

(1978) ; Allied Chemical Corp. v. Daiflon, Inc. 449 US. 33,

36 (1980).

Congress has mandated that appellate review should

occur only after final judgment. Allied Chemical, supra, at

35. This Court has ruled that “[o]rders relating to class

certification are not independently appealable under § 1291

prior to judgment.” Coopers ¢ Lybrand, supra at 470. This

finality requirement “prevents the debilitating effect on

judicial administration” caused by piecemeal appeals in

the same case.* Coopers € Lybrand, supra at 471, 473.

Since Coopers ¢ Lybrand, this Court has reaffirmed that

appellate review of class certification orders is inappro-

priate because they are “inherently tentative”. Moses H.

Cone Memorial Hospital v. Mercury Construction Corp., 103

S.Ct. 927, 935, n.14 (1983). Class certification orders are

entered at the initial stage of a case, often before all of the

facts and parties have been fully defined, and Rule 23(c) (1)

accordingly provides that such orders may be modified

prior to final judgment. The tentativeness of such orderer

is particularly appropriate in multidistrict litigation where

there are multiple plaintiffs, complex facts, and the con-

solidation of related cases.

Issuance of a writ of mandamus to control class certifica-

tion would deprive a district court of the discretion granted

it under Rule 23(c)(1) to alter or amend certification

orders as the litigation develops. To sanction review of such

orders by mandamus would relegate the final judgment rule

® This case is a prime example of the undesirability of piecemeal

appeals and the consequent burden on the judiciary. Defendants

have already filed two mandamus petitions with the Eighth Circuit

seeking to overturn the class certification order.

8

to “the mercy of any court of appeals which [chooses] to

disregard it.” Allied Chemical, supra at 36. It would also

substitute the discretion of the courts of appeals for that of

the trial courts, Coopers ¢ Lybrand, supra at 474, n.24, 476,

n.28, and nullify the requirements of 28 U.S.C. § 1292(b).

Appellate courts would be “thrust into the trial process”,

Coopers & Lybrand, supra at 476, “with the district courts

as litigants”, Allied Chemical, supra at 35, and the intended

efficiency of multidistrict litigation and the finality require-

ment of Section 1291 would be completely undermined.

B. No Special Standard Is Necessary For the Law of The

Case Doctrine in Multidistrict Litigation

Lacking an issue of true importance, defendants urge this

Court to set a special standard to relieve the supposed

“tension” between the “law of the case” doctrine and the

powers of a transferee judge in a multidistrict proceeding.

Absent the creation of such a standard, defendants contend,

there is a potential for gross misuse and abuse of multi-

district proceedings.

Defendants are requesting the creation of a special stand-

ard to solve a non-existent problem. Out of approximately

500 multidistrict cases filed, not one has demonstrated the

need for such a standard. Indeed, in the few multidistrict

cases cited by defendants, the courts easily disposed of the

issues before them without concern for tension or potential

abuse.

Transferee courts in multidistrict litigation routinely de-

cide class certification, discovery, and similar interlocutory

matters. These decisions are necessarily discretionary and

depend on the factual record before the court at the time

of its ruling. Rulings on such issues require no special

standard as suggested by defendants.

9

The power of a transferee judge to review and revise dis-

cretionary discovery orders of the transferor court was

clearly recognized in In Re The Upjohn Co. Antibiotic

Cleocin Products Liability Litigation, 664 F.2d 114, 118 (6th

Cir. 1981) and In Re Multi-Piece Rim Products Liability

Litigation, 653 F.2d 671, 676 (D.C. Cir. 1981).

Similarly, the transferee judge is empowered to deter-

mine the class action questions because all of the parties,

claims, and defenses are before him in one proceeding. As

stated in In Re Plumbing Fixture Cases, 298 F.Supp. 484,

493 and 496 (JPML 1968) :

It is the clear intent of Section 1407 to invest the

transferee court with the exclusive powers, after trans-

fer, to make the pretrial determinations of the class

action questions. In the similar protection devices

litigation we said: “Determination of all matters in-

volving questions of class action shall be left to the

sound judgment of ... the transferee judge... .”

” . +

In the case of class action determinations made by the

transferor court prior to transfer, the provisions of

Rule 23 apply permitting the transferee court to deter-

mine the class action questions and to review and revise

the class action order as in its sound judicial discretion

is desirable or necessary in the interest of justice.

See also State of Illinois v. Harper d Row Publishers, Inc.,

301 F.Supp. 484, 492 (N.D. Ill. 1969).

Moreover, there has been no breach of the “law of the

ease” doctrine in this situation. Judge Weiner’s decision to

certify the class was based on a record of changed law and

facts which was not before Judge Alsop. Judge Weiner was

presented with additional class representatives providing

broader geographic representation and additional materials,

as well as several new decisions supporting certification.

10

Judge Weiner also had before him new cases which were not

subject to Judge Alsop’s prior order. Judge Arnold aptly

recognized that the “law of the case” doctrine is inapplicable

to these new cases:

The court, though conceding that the doctrine of “law

of the case” may not be an inflexible command, invokes

the doctrine to support its reasoning. To this I reply:

“the law of what case?” Judge Alsop’s decision might

indeed be the law of the case brought in Minnesota by

Hoyt Construction Co. and Minnesota Exteriors, Inc.,

but how can it be the law of the cases later brought

by Western Builders, Inc., and Lagar Construction Co.

in California, by Midwest Builders & Materials, in

Illinois, and by Riverside Builders, the last case having

been filed while this petition was pending before us?

None of these later filing plaintiffs was before Judge

Alsop; none of them had a chance to argue before him

that a class should be certified; yet all seem to be

concluded by his ruling... .

Surely the view that the filing of three new actions

in far away states by four new corporate plaintiffs

justifies a new look at the class question, is not so

unreasonable as to be a “usurpation of power.” ...

(Petition, Appendix, H-16—H-17)

Defendants contend that there is no standard for apply-

ing the law of the case doctrine in multidistrict litigation.

There is a standard, but it is not the rigid one that de-

fendants wish to impose. Class action decisions by a trans-

feree judge necessarily must be on a case-by-case basis.

The standard that the transferee judge applies is to con-

sider the transferor judge’s prior rulings, and then make

his own decision in light of the post-consolidation circum-

stances. Judge Weiner’s decision not to follow a court’s

refusal to certify was not a usurpation of power; nor was it

even unique. See, e.g., State of Illinois v. Harper & Row

Publishers, Inc., supra; Plumbing Fixtures Antitrust Liti-

gation, supra; and Plywood Antitrust Litigation, M.D.L.

159.

11

The cases cited by defendants as “appropriate cases”

(Petition, 8-9) in support of the application of the “law

of the case” doctrine are not on point. Hayman Cash

Register Co. v. Sarokin, 669 F.2d 162 (3d Cir, 1982) in-

volved the power of a district court to retransfer a case to

its original forum after a transfer pursuant to 28 U.S.C.

§ 1406(a), not the power to modify a class certification

decision. Such transfer orders are not “inherently tenta-

tive”, and are by nature subject to the principles of comity.

Otten v. Stonewall Insurance Co., 5388 F.2d 210 (8th Cir.

1976) also did not involve a class certification decision.

In Otten, a decision on a former appeal (concerning the

sufficiency of the evidence on a motion for judgment not-

withstanding the verdict) was held to conclusively deter-

mine the same question when presented in a second appeal.

Finally, ACF Industries, Inc. v. Guin, 384 F.2d 15 (5th

Cir. 1967), cert. denied, 390 U.S. 949 (1968), as stated at

page 13, note 12, infra, did not involve a class certification

decision, but a stay order.

Sley v. Jamaica Water & Utilities, Inc., 77 F.R.D. 391

(E.D.Pa. 1977) and Kramer v. Scientific Control Corp., 67

F.R.D. 98 (E.D.Pa. 1975), appeal dismissed im part, re-

versed in part on other grounds, 534 F.2d 1085 (3d Cir.),

cert. denied sub nom, Arthur Andersen & Co. v. Kramer,

429 U.S. 830 (1976) (Petition, 9) are also inapposite.

Neither was a multidistrict case and thus did not raise

the issues raised by defendants here.’

*In Sley, on the “eve of trial” and six years after the order of

class certification, the defendants attempted to decertify the class

based on the alleged conflict of interest of plaintiffs’ counsel. Since

the court was not convinced that the conflict in fact existed, it re-

- fused to decertify the class. In Sley, the court did in fact recognize

that it had the power to change a certification ruling but did not

find the alleged conflict of interest an appropriate basis to do so.

In Kramer, the court denied defendants’ motion for reconsideration

of class certification on the basis that the alleged grounds for de-

certification could have been asserted earlier but were not. The “law

of the case” doctrine was not even mentioned.

12

The “tension” between the “law of the case” doctrine and

the responsibilities of a multidistrict transferee judge

simply does not exist. To grant review of the ruling of the

Eighth Circuit denying defendants’ latest request for a writ

of mandamus would only encourage other litigants dis-

satisfied with a district court’s class certification order to

burden the appellate courts with similar petitions.

C. Denial of The Writ of Mandamus In This Case Was

Proper

Mandamus is a drastic remedy, to be invoked only in

extraordinary situations. This Court has held that “[o]nly

exceptional circumstances, amounting to a judicial usurpa-

tion of power, will justify the invocation of this extraor-

dinary remedy.” Allied Chemical Corp. v. Daiflon, Inc., 449

U.S. 33, 35 (1980) (emphasis added). This Court has simi-

larly stated that mandamus should be used “only ‘to confine

an inferior court to a lawful exercise of its prescribed juris-

diction or to compel it to exercise its authority when it is its

duty to do so.’ ” Jd. at 35, (emphasis added), quoting Will

v. United States, 389 U.S. 90, 95 (1967) and Roche v.

Evaporated Milk Association, 319 U.S. 21, 26 (1943).

The Petition does not present any exceptional circum-

stances. The judicial usurpation of power required by Allied

Chemical is notably absent. Judge Weiner did nothing more

than exercise his discretion under Rule 23. Judge Weiner

was not obligated to follow Judge Alsop’s class ruling, but

only to consider it (which he did) in his review. In Re The

Upjohn Co. Antibiotic Cleocin Prods. Liability Litigation,

supra at 118-120. In certifying the class, he acted within the

mandate of the Panel, the authority conferred by Rule 23,

and well established law.

Nor was Judge Weiner’s certification of a class after

Judge Alsop had refused to do so an abdication of his judi-

13

cial function warranting the issuance of a supervisory writ

under La Buy v. Howes Leather Co., 352 U.S. 249, 297

(1957) (cited in Petition, 14).°° The “supervisory” man-

damus in La Buy applied to a situation where the district

court judge had deprived litigants of a trial by the court in

persistent disregard of the directive of the court of ap-

peals.’' Here Judge Weiner did not ignore an appellate

court’s order. He merely exercised the authority conferred

upon him as the transferee judge.'* Significantly, defendants

have ignored other cases holding mandamus inappropriate

to review class certification orders. See, e.g., In Re Alle-

ghany Corp., 634 F.2d 1148 (8th Cir. 1980); J. H. Cohn &

Co. v. American Appraisal Associates, 628 F.2d 994 (7th

Cir. 1980) (specifically declining to apply the La Buy

supervisory writ) ; Bauman v. United States District Court,

557 F.2d 650 (9th Cir. 1977) specifically declining to apply

1°In La Buy, a writ was issued because the trial judge’s ref-

erence of a trial to a master was a clear abuse of discretion and

ignored the admonition of the Seventh Circuit against such refer-

ences. Thus the mandamus was based on the policy of preventing

a judge from persistently disregarding the rules and warnings of

the appellate court and avoiding his judicial duties.

11In United States v. Haley, 371 U.S. 18 (1962) and United

States v. Ritter, 273 F.2d 30 (10th Cir. 1959) cert. denied, 362 U.S.

950 (1960) (cited in Petition 15), as in La Buy, the writs were

issued because the district courts entered orders contradicting ex-

press directives from courts of appeals.

12 Moses H. Cone Memorial Hospital v. Mercury Construction

Corp., 108 8.Ct. 927 (1983) (Petition, p. 14) was not a mandamus

case and actually supports plaintiffs’ position. In that case, this

Court reaffirmed Coopers and the inherently tentative nature of

class certification orders. ACF Industries, Inc. v. Guinn, 384 F.2d

15 (5th Cir. 1967), cert. denied, 390 U.S. 949 (1968) (cited at Peti-

tion, 13), was not a class action case-and has n° application here in

light of this Court’s rulings in Coopers and Moses. In ACF, the

writ was issued to protect the permanent nature of a stay order.

In this case, however, mandamus would destroy the inherently

tentative nature of a class certification order.

14

the La Buy supervisory writ); Interpace Corp. v. City of

Philadelphia, 438 F.2d 401 (3d Cir. 1971)."

I

AN EQUALLY DIVIDED VOTE BY A FEDERAL COURT

OF APPEALS SITTING EN BANC AFFIRMS THE

DISTRICT COURT RULING

A. The Eighth Circuit Practice Is To Affirm The Judg-

ment of the District Court

The Eighth Circuit has a long-established practice affirm-

ing the district court when the court of appeals sitting en

banc is equally divided. Tinker v. Des Moines Independent

Community School District, 383 F.2d 988 (8th Cir. 1967).

The existence of this practice is sanctioned under Rule 47

of the Federal Rules of Appellate Procedure. Given the

longevity of the practice, defendants cannot claim surprise

(Petition, 20).

B. The Practice of Other Courts of Appeals Is To Affirm

a Lower Court Judgment With an Equally Dividec.

En Banc Ruling

The Eighth Circuit practice regarding the effect of

equally divided en bamc decisions conforms to that of other

courts of appeal. Contrary to defendants’ claim of “con-

fusion and uncertainty” (Petition, 19), it is well established

18 McDonnell Douglas Corp. v. U.S. District Court for the Central

District of California, 523 F.2d 1083 (9th Cir. 1975), cert. denied

sub nom. Flanagan v. McDonnell Douglas Corp., 425 U.S. 911

(1976) and Schmidt v. Fuller Brush Co., 527 F.2d 532, (8th Cir.

1975), (cited in Petition, 15) are also factually inapplicable to this

case. In both, the appellate courts issued writs because the district

courts had improperly applied the Federal Rules in granting class

certification. In McDonnell, the district court’s certification of a

class for damages was contrary to Rule 23(b) (2) and a prior Ninth

Circuit decision. Similarly, in Schmidt, the district court certified

a class action in a Fair Labor Standards Act case under Rule 23,

in direct disregard of a statute mandating a totally different pro-

cedure in such cases. t

15

that lower court judgments are affirmed by equally divided

courts of appeals sitting en banc." As stated in Vol. 40,

New York University Law Review 568, 584 (1965): “The

circuits follow the Supreme Court practice of affirming the

lower court decision in such instances ... .” See Biggers v.

Tennessee, 390 U.S. 404 (1968), rehearing denied, 390 U.S.

1037 (1968).

None of defendants’ cases supports their position. In

Carmichael v. Eberle, 177 U.S. 63 (1900), a territorial ap-

pellate court voted 2-1 for a reversal. A motion for a re-

hearing was denied by a 2-2 divided Court. In Carmichael

the only issue was whether a rehearing would be granted.

The divided court did not address the merits. The case

merely states that a majority is needed to grant a rehearing.

In this case, however, there is no question that the Eighth

Circuit granted a rehearing. Bishop v. Wood, 498 F.2d 1341

(4th Cir. 1974), aff'd, 426 U.S. 341 (1976), is also misinter-

preted by defendants and actually supports plaintiffs. In

that case, the en banc court affirmed the lower court, nof

the panel, in accordance with other precedent in the Fourth

Circuit. See United States v. Kimes, 458 F.2d 36 (4th Cir.

1972); United States v. Mandel, 602 F.2d 653 (4th Cir.

1979), cert. denied, 445 U.S. 961 (1980).

14 See Drake Bakeries Inc. v. Local 50, American Bakery & (.

Wkrs., 294 F.2d 399, 400 (2d Cir. 1961), aff'd on other grounds,

370 U.S. 254 (1962); Commonwealth of Penn. v. Local Union 542,

International Union of Operating Engineers, 648 F.2d 923, 924

(3d Cir. 1981), rev’d on other grounds, 102 S.Ct. 3141 (1982) ; United

States v. Mandel, 602 F.2d 653 (4th Cir. 1979), ceri. denied, 445

U.S. 961 (1980); United States v. Geders, 585 F.2d 1303, 1305-1306

(5th Cir. 1978), cert. denied, 441 U.S. 922 (1979); Ramsey v.

United Mine Workers of America, 416 F.2d 655 (6th Cir. 1969),

rev'd on other grounds, 401 U.S. 302 (1971); United States v.

Clavey, 578 F.2d 1219 (7th Cir. 1978), cert. denied, 439 U.S. 954

(1978); Tinker v. Des Moines Independent Community School

Dist., 383 F.2d 988 (8th Cir. 1967), rev’d on other grounds, 393

U.S. 508 (1969).

CONCLUSION

There is no reason for this Court to issue a Writ of

Certiorari in this case. The Petition should be denied.

Dated: July 25, 1983

Respectfully Submitted,

COCHKANE & BRESNAHAN

John A. Cochrane

Stewart C. Loper

360 Wabasha, #500

St. Paul, MN 55102

(612) 298-1950

Attorneys for Real Parties in

Interest Plaintiffs Hoyt

Construction Company, Inc.

and Minnesota Exteriors, Inc.

ABRAHAM N. GOLDMAN

2 North LaSalle Street

Chicago, IL 60602

(312) 346-8181

Attorney for Real Parties in

Interest Plaintiffs Western

Builders, Inc. and Lagar

Construction Company

Mucu SHELIST FREED

DENENBERG AMENT & EiaGer, P.C

Michael J. Freed

(Counsel of Record )

Stuart M. Widman

Suite 2323

135 South LaSalle Street

Chicago, IL 60603

(312) 346-3100

Attorneys for Real Party in

Interest Plaintiff Riverside

Builders, Inc.

STEVEN ACKERMAN

120 South LaSalle Street

Chicago, IL 60603

(312) 269-5850

Attorney for Real Party in

Interest Plaintiff Midwest

Builders & Materials, Inc.

dr.

A-l

APPENDIX A

PROCEDURAL HISTORY

June 4, 1975, Plaintiffs Hoyt Construction Company, Inc.

(Hoyt) and Minnesota Exteriors, Inc. (MEI) commence

antitrust class action in the District of Minnesota.

August 24, 1978, Order denies motion of plaintiffs Hoyt and

MEI for class action certification (Alsop, J).

January 21, 1980, Order denies renewed class action motion

by Hoyt and MEI (Alsop, J).

February 8, 1980, Order denies plaintiffs (Hoyt and MEI)

motion to alter or amend or for relief from Order of

January 21, 1980 (Alsop, J).

December 9, 1980, Plaintiffs Western Builders, Inc.

(Western) and Lagar Construction Company (Lagar)

commence antitrust class action in the Northern Dis-

trict of California.

December 22, 1980, Plaintiff Midwest Builders and Ma-

terials, Inc. (Midwest) commences antitrust class ac-

tion in the Northern District of Dlinois.

January 26, 1981, Defendants move the Judicial Panel on

Multidistrict Litigation to consolidate and transfer to

the District of Minnesota pursuant to 28 U.s ©. § 1407.

April 8, 1981, Order of the Judicial Panel on Multidistrict

Litigation transfers litigation to the District of Minne-

sota and assigns The Honorable Charles R. Weiner,

Judge of the United States District Court for the

Eastern District of Pennsylvania, to sit by designation.

June 22, 1981, Motion by plaintiffs Hoyt, MEI, Western,

Lagar and Midwest for class action certification and

other relief.

ee

A-2

August 3, 1981, Memorandum and opinion certified class

(Weiner, J).

August 18, 1981, Defendants’ motion to vacate class action

order or for certification pursuant to 28 U.S.C.

§ 1292(b).

October 16, 1981, Defendants’ first petition for writ of

mandamus.

October 27, 1981, Defendants’ first petition for writ of man-

damus voluntarily dismissed.

October 30, 1981, Hearing on defendants’ motion to vacate

class action or for certification pursuant to 28 U.S.C.

§ 1292(b) (Weiner, J).

January 5, 1982, Order denies motion to vacate class ac-

tion order or for certification pursuant to 28 U.S.C.

§ 1292z(b) (Weiner, J).

January 20 1982, Defendants’ second petition for writ of

mandamus.

February 19, 1982, Riverside Builders, Inc. commences

antitrust class action in the Northern District of

Illinois.

February 24, 1982, Plaintiffs’ answer to petition for writ

mandamus.

March 9, 1982, Order of the Judicial Panel on Multidistrict

Litigation transfers Riverside Builders case to the

District of Minnesota.

December 29, 1982, Opinion, dissent and judgment of

Eighth Circuit Court of Appeals.

January 11, 1983, Petition for rehearing en banc.

February 11, 1983, Order of Eighth Circuit Court of Ap-

peals grants rehearing en banc.

April 28, 1983, Order of Eighth Circuit Court of Appeals

sitting en banc denies petition for writ of mandamus.

ae

B-1

APPENDIX B

DESIGNATION OF DISTRICT JUDGE FOR SERVICE

IN ANOTHER CIRCUIT

The Chief Judge of the Eighth Cireuit having certified

that there is a necessity for the assignment of a judge

from another circuit to perform the duties of district

judge and hold a district court in the District of Min-

nesota; and the Chief Judge of the Third Circuit having

consented to the designation and assignment of the Honor-

able Charles R. Weiner, United States District Judge for

the Eastern District of Pennsylvania, in that Circuit, to

hold the District Court in the District of Minnesota dur-

ing the period beginning September 1, 1975, and ending

September 1, 1976, now, therefore, pursuant to the author-

ity vested in me by Title 28, United States Code, Section

292(d), I do hereby designate and assign the said Charles

R. Weiner to perform the duties of district judge and

hold a district court in the District of Minnesota during

the period beginning September 1, 1975, and ending

September 1, 1976, and for such additional time in advance

thereof to prepare for the trial of cases, or thereafter as

may be required to complete unfinished business.

/s/ Warren E. Bureer

Chief Justice of the United States

Dated: Washington, D.C., September 8, 1975.

C-1

APPENDIX C

COCHRANE & BRESNAHAN, P.A.

Attorneys at Law

Suite 500

360 Wabasha Street

Saint Paul, Minnesota 55102

July 20, 1981

The Honorable Charles R. Weiner

Judge of the U.S. District Court

6613 South U.S. Courthouse

Independence Mall West

Philadelphia, Pennsylvania 19106

Re: Aluminum Siding and Coil Antitrust Litigation

MDL 454

Dear Judge Weiner:

We enclose herewith Plaintiffs’ Joint Brief in Support

of Motion for Class Action Determination together with an

Affidavit in Support thereof. Also enclosed is a copy of the

materials distributed by U.S. Steel/Alside which graphic-

ally describe the products which are the subject of this

litigation and the manner in which they are produced and

applied.

Very truly yours,

John A. Cochrane

JAC :mm

Enclosure

ec: All counsel!

1 Note to Counsel: Because of the volume of paper, a repro-

duction of the U.S. Steel/Alside materials are being sent only to

lead counsel for each defendant.