# Opposition — Alside, Inc. v. Weiner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 866

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1229%3A2. Public record. Not legal advice.