Petition for Writ of Certiorari — Cochrane & Bresnahan v. Class Representatives

Supreme Court of the Anited States

October Term, 1984

COCHRANE & BRESNAHAN,

PAN O’GOLD, INC., IMPERIAL PRODUCTS CORP.,

and JOHN E. KOERNER & CO., INC.,

Petitioners,

Vv.

PLAINTIFF CLASS REPRESENTATIVES and

THE PLAINTIFF CLASS,

Respondents.

IN RE: CORN DERIVATIVES ANTITRUST

LITIGATION (MDL 414)

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

LOUIS R. KOERNER, JR.

LAW OFFICES OF

LOUIS R. KOERNER, JR.

1204 Jackson Avenue

New Orleans, LA 70130

(504) 581-9569

JOHN A. COCHRANE

COCHRANE & BRESNAHAN

24 East Fourth Street

St. Paul, MN 55101

(612) 298-1950

Counsel for Petitioners

ae

224-7651 -— Review Publishing Co., 287 E. 6th St., St. Paul, Minn. 55101 — 224-7631

QUESTION PRESENTED FOR REVIEW

Opposition by class counsel to a proposed class settlement

should never form the sole basis for disqualification even

when one client/class representative chooses to accept a class

settlement whereas another chooses to oppose the settlement.

Should the private interest of one class representative form

the basis of disqualification of class counsel seeking to oppose

a class settlement, when the motion for disqualification is

filed solely by proponents of the settlement, not the client, the

motion is filed and heard in an appellate court in the absence

of an evidentiary hearing, and an untainted decision on the

merits of the settlement could have been rendered prior to or

have mooted consideration of such a motion?

TABLE OF CONTENTS

Question Presented For Review .......................

ue ae ee ww ee eS

I A ir al i cle ee Vek pees bee debs

Jurisdiction Of This Court. ..............................

Governing Rules And Standards..........................

Statement Of The Case. .............................

Reasons For Granting The Writ..._.—.................

1.

The Decision Below Conflicts With The Judicial

Requirement That Disqualification Motions Re-

quire An Evidentiary Hearing And A Full Factual

Record, Including Decisions Of The Second, Fifth,

Sixth, Eighth, And Tenth Circuits __.

The Decision Below Conflicts With Prior Sheahan.

tion Of Standing To Clients Or Former Clients To

Assert Disqualification On Grounds Which May

Be Waived, Including Decisions Of The Fifth And

SEES eo eS ee

Disqualification Should Not Be Permitted To Be

Used As A Tool To Thwart Objection To Class

yg sw SOARS a Bo cis oo OS

The Decision Below Presents An Important Fed-

eral Question Concerning The Extent To Which

Public Interest In Adequate Representation Of

Absent Class Members Should Be Subordinated

To Private Interests Of Client/Class Representa-

tives Who Tardily Wish To Accept A Controver-

i I 7). Fgh Dies. ededs digas > xs

Consideration Of Disqualification Should Have

Awaited A Decision On The Merits Unaffected By

Ray Aleeed Conflict .. 2... sie.

ak eb cba vww ae ve

Certificate of Service

Appendix

iii

Page

10

13

14

15

TABLE OF AUTHORITIES

Page

Cases:

Allegaert v. Perot,

565 F.2d 246 (2d Cir.1977) ................... 12

Black v. State of Missouri,

492 F.Supp. 848 (W.D. Mo.1980) .._......... 12, 18, 15

Deposit Guaranty National Bank v. Roper,

(HR rk ss reine ce ek 15, 17

Fred Weber, Inc. v. Shell Oil Co.,

566 F.2d 602 (8th Cir. 1977), cert. den.,

Ce ee Oe I Ges 5 A oi 11

Freeman v. Chicago Musical Instrument Co.,

639 F.2d 7165 (7th Cir. 1982) ................... 11,14

Fullmer v. Harper,

517 F.2d 20 (10th Cir. 1975) ...... ............ 11

Garner v. Wolfinbarger,

430 F.2d 1093 (5th Cir. 1970), cert. den.,

Sun Gee OO SO... es AG. Bes 12,13

Gas-A-Tron v. Union Oil,

534 F.2d 1322 (9th Cir. 1976), cert. den.,

Oe ee a he is 14

Hovsons, Inc. v. Secretary of Interior of the

United States, 711 F.2d 1208 (3d Cir. 1983) ... 11, 12,14

In re Eastern Sugar Antitrust Litigation,

697 F.2d 524 (3d Cir. 1982) .................... 17

In re General Motors Corp. Engine Interchange

Litigation, 594 F.2d 1106 (7th Cir. 1979) ..__..... 16

In re Yarn Processing Patent Validity Litigation,

530 F.2d 83 (5th Cir.1976) ...... sss da 12,13

J.P. Foley & Co., Inc. v. Vanderbilt, l

523 F.2d 1857 (2d Cir.1975) .... 11, 18

iv

\

Kevlik v. Goldstein,

Tae Pe O66 fiat Cis. IGBE). 2. ow ees oe 13

Kramer v. Scientific Control Corp.,

534 F.2d 1085 (3d Cir. 1976), cert. den.,

490-08. 000 C1076) ee 15, 18

Melamed v. ITT Continental Baking Co.,

534 F.2d 82 (6th Cir. 1976) . ................. 11

Melamed v. ITT Continental Baking Co.,

590 F.2d 290 (6th Cir. 1979) .................. 13

Mendoza v. United States,

623 F.2d 1338 (9th Cir. 1980), cert. den. sub nom.,

Sanchez v. Tucson Unified School Dist. No. 1,

Se ES ee te 17

National Souvenir Center, Inc. v. Historic Figures,

Inc., 728 F.2d 503 (D.C. Cir. 1984) .............. 14

Norman Norell, Inc. v. Federated Department

Stores, Inc., 1978-1 Trade Cases (CCH) {| 62,037

er ook oie es ee eet ye 17

Pettway v. American Cast Iron Pipe Co.,

576 F.2d 1157 (5th Cir. 1978), cert. den.,

ee Te Bane feere) os ole ee se e.. 10, 11, 15, 16

Saylor v. Lindsley,

456 F.2d 896 (2d Cir. 1972) ................... 16

Silver Chrysler Plymouth, Inc. v. Chrysler Motor

Corp., 518 F.2d 751 (2d Cir. 1975) ........... 11, 12,14

Trinity Ambulance Service v. G & L Ambulance

Services, 1984-1 Trade Cases (CCH) {| 65,945

CO ii Te 5 ok « Hie OY 12, 17, 18

Trust Corp. of Montana v. Piper Aircraft Corp.,

701 F.2d 85 (9th Cir. 1988) .................... 12

Walsh v. Great Atlantic & Pacific Tea Co., Inc.,

726 F.2d 956 (3d Cir. 1983) .............. agen

Vv

W.T. Grant v. Haines,

531 F.2d 671 (3d Cir. 1976) .................... 14, 15

Other Authorities:

Developments in the Law—Class Actions,

89 Harv. L. Rev. 1318 (1976)

Developments, Conflicts of Interest in the Legal

Profession, 94 Harv. L. Rev. 1247 (1981) ........ 16

Note, The Attorney-Client Privilege in Class Actions:

Fashioning an Exception to Promote Adequacy of

Representation, 97 Harv. L. Rev. 947 (1984) .. .18, 15, 16

Rhode, Class Conflicts in Class Actions,

34 Stan. L. Rev. 1183 (1981) ................ 12, 16,17

vi

IN THE

Supreme Court of the Gnited States

October Term, 1984

No.

COCHRANE & BRESNAHAN,

PAN O’GOLD, INC., IMPERIAL PRODUCTS CORP.,

and JOHN E. KOERNER & CO., INC.,

Petitioners,

v.

PLAINTIFF CLASS REPRESENTATIVES and

THE PLAINTIFF CLASS,

Respondents.

IN RE: CORN DERIVATIVES ANTITRUST

LITIGATION (MDL 414)

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

Petitioners, Cochrane & Bresnahan, Pan O’Gold, Inc., Im-

perial Products Corp., and John E. Koerner & Co., Inc.,

respectfully pray that a Writ of Certiorari issue to review

the Judgment and Opinion of the United States Court of

Appeals for the Third Circuit entered on November 15, 1984.

2

OPINION BELOW

The Opinion and Judgment of the Court of Appeals dis-

qualifying Cochrane & Bresnahan appears in Appendix A to

this Petition, and is reported at 748 F.2d 157. The Order of

the Court of Appeals denying a Petition for Rehearing en

banc appears in Appendix B. |

JURISDICTION OF THIS COURT

The Opinion and Judgment of the Court of Appeals was

entered on November 15, 1984. A timely petition fc > rehearing

and rehearing en banc was denied on January 3, 1985. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

GOVERNING RULES AND STANDARDS

INVOLVED IN THE CASE

The Federal Rule of Appellate Procedure involved is Rule

46(c) [Exhibit C]. This case also involves ABA Model Rule

of Professional Conduct 1.9 [Exhibit D].

STATEMENT OF THE CASE

This case involves the right of a class representative to

object to a class settlement without risking or causing dis-

qualification of its counsel. Also involved is the interest of

absent class members and objectors in maintaining knowledge-

able counsel able to focus on the improprieties and inade-

quacies of proposed class settlements.

The decision below nullifies these rights by permitting

proponents of a settlement to bring a successful disqualifica-

tion motion in a court of appeal, without an evidentiary hear-

ing, on grounds raised in the district court and on the basis

3

of fictional harm to an uncomplaining jointly represented

client in which the only claimed basis for disqualification is

that one formerly jointly represented client desired to accept

the settlement whereas counsel and the other class representa-

tive believed opposition and objection to be appropriate.

Because it is desirable and economical for class representa-

tives to be jointly represented and for class attorneys to work

together, the decision of the Court of Appeals threatens to

disrupt all future class settlements by preventing effective ob-

jection by class counsel.

The limited facts available to the Court of Appeals can be

summarized briefly.

On December 21, 1979, Cochrane & Bresnahan, attorneys

at law, (“C&B”) were retained by Pan-O-Gold, Inc. (“Pan-O-

Gold”) to file an antitrust complaint against the major pro-

ducers of corn derivative products. This action, No. 3-79-638

on the docket of the District of Minnesota, was commenced on

December 26, 1979. [Response of C&B “R” at J 1] Six weeks

later, C&B was retained to represent the interests of Land

O’Lakes, Inc. by the firm of Doherty, Rumble & Butler, P.A.

[“DR&B”] and Eugene Warlich [Warlich] a member of that

firm. In accordance with that authorization, a separate suit

was filed on February 4, 1980 [R {| 2]. The following month,

C&B began representation of General Mills under identical

zircumstances [R { 3]. Prior to the initiation of representa-

tion of Land O’Lakes and General Mills, C&B had furnished

DR&B with copies of previously filed pleadings in the various

Corn Derivative Product litigation cases (“CDL”), including

the government complaints and the Pan-O-Gold suit [R { 4].

As of the date of the suit, C&B had discussed the CDL cases

only with Warlich of DR&B, the attorney for Land O’Lakes

and General Mills. The only information which has ever been

received from Land O’Lakes and General Mills is purchase

4

data necessary to support their class claim. Even this informa-

tion was received from DR&B. [R at page 4.] This same type

of information was filed by many class members in response

to the class notice and was provided by John E. Koerner &

Co., Inc. and Imperial Products, objectors, as a result of a

request from the proponents of the settlement made at the

first fairness hearing of June 30, 1983.

By letter of February 1, 1980, also sent to C&B, DR&B ex-

plained the representation of DR&B and C&B to Land O’Lakes

and confirmed the ten percent contingent fee in addition to

the fee to be awarded by the court and the agreement as to

how such fee was to be divided between C&B and DR&B. On

February 5, 1980, John Cochrane of C&B wrote to Warlich

of DR&B Re: “Corn Derivative Antitrust Litigation,” then

MDL 414, stating:

Thank you for your letter of February 1, 1980. In fol-

lowing with our understanding, your firm will handle

al) of Land O’Lakes Interrogatories, document discovery

matters, etc. and our firm will handle court appearances

and court related matters regarding this litigation.

There has never been direct contact by C&B with the client,

Land O’Lakes, concerning this case.

On July 3, 1980, Cochrane was appointed a member of the

Steering Committee established by Pretrial Order No. 1. War-

lich was not. [D20, A77.] The appointment of the steering

committee was “subject to the right of any plaintiff to present

any individual or divergent positions or to take individual

actions, .. .” [A70-71.]

On April 6, 1983, C&B filed “Motion to Reject Proffered

Settlements” [D235, A420] on behalf of Land O’Lakes and

Pan-O-Gold. In the transcript of the 4/12/83 hearing, C&B,

who argued in favor of the motion, is noted as appearing as

attorneys for General Mills. No appearar.ce is noted for DR&B.

The motion was denied by the Court on 4/21/83 [D240, A475,

477].

After notice of settlement had been sent, DR&B, as “At-

torneys for Land O’Lakes, Inc.” joined with Josef D. Cooper

and other attorneys for various class members, including Safe-

way Stores, Incorporated and Quaker Oats, to file “Entry of

Appearance of Counsel for Certain Class Members” [D750,

A543-545]. Filed therewith were motions concerning dis-

covery, to continue the hearing, and to extend the time for

exclusion [D751, A546], together with supporting interroga-

tories, affidavits, and authorities. A hearing was held on June

30, 1980 at which time objectors, John E. Koerner & Co., Inc.

and Imperial Products Corp. also made an appearance.

At this hearing, DR&B appeared, separately representing

Land O’Lakes, and withdrew its “support for discovery.”

[A619.] In that hearing, Guido Saveri, one of the members of

the plaintiffs’ steering committee and one of respondents,

Plaintiff Class Represen' tives and the Plaintiff Class, raised

the issue of the prior representation by Cooper of United A.G.

Grocers and his former membership in the plaintiffs’ steering

committee, and noted that the former client, now represented

by other counsel, was in favor and actually “sponsored the

settlement.” [A624.] Mr. Cooper stated that his was one of

three law firms representing United A.G. Grocers, and that

“When the case was sent back here to Newark, I ceased being

involved in the matter, .. .” In response to an inquiry of the

court [A625], Cooper stated that he was unaware of what his

previous client was doing or its support of the settlement.

THE COURT: Is this a problem in your mind?

MR. COOPER: I don’t know, your Honor.

MR. SAVERI: They are supporting.

THE COURT: Let’s get to the merits of the dis-

covery motion rather than to the role of the various advo-

cates, Mr. Berger. [A625]

Later in the hearing, Mr. Kohn, citing an unidentified

ruling in the “Plumbing” case, contended that “counsel cannot

represent people who stay in and people who opt out or people

who oppose the settlement. It is inconsistent to take a dual

position.” According to Mr. Kohn, “You cannot develop a con-

flict where one of your clients is going ahead with the settle-

ment and another client is opting out.” [A634-35.]

In that hearing, C&B appeared against the settlement only

for Pan-O-Gold [A656-660]. Mr. Berger attempted to suppress

dissent and C&B’s status as an objector, not by asserting any

alleged conflict, but by stating that “Mr. Cochrane is estopped

from making his objection,” citing an affidavit which C&B

had filed with its fee application [A660]. The court brushed

this aside with the comment “Well, maybe he is anticipating

something we don’t know about yet.” [A660].

At the August 17, 1983 hearing, after the court’s opinion,

C&B reiterated its objection [A824] on behalf of Pan-O-Gold

[A831]. C&B affirmed its prior representation of Land

O’Lakes and General Mills and stated: “. . . they have not

decided to object to the settlement, your Honor.” Mr. Kohn

then raised the disqualification issue:

MR. KOHN: Couldn’t your Honor, just as a technical

matter, in view of what Mr. Cochrane has just said, Judge

Harvey in the Plumbing case ruled, and | think he had

since been followed by most judges, that counsel have a

conflict of interest when they purport to oppose the settle-

ment for one client and approve and represent another

client which will participate in that settlement.

7

THE COURT: I think that was the reason I thought

you had abandoned the objection, because I, at the last

hearing in which you were not present, I think you were

in China—

MR. COCHRANE: No, Greece, your Honor.

But let me address that. I am well aware of Judge

Harvey, because I got a writ of mandamus on Judge

Harvey to force a hearing on the settlements in the Plumb-

ing cases. Mr. Kohn knows that. I’m well aware of what

Judge Harvey said.

What I wish pointed out to the Court, those clients are

represented by other counsel. I was just litigation counsel.

So there is no conflict. They are perfectly well repre-

sented.

THE COURT: I’m not going to get into that issue at

this juncture. All I want to do now is reflect that there is

an additional objector. [A831-32, emphasis added.]

Later in the hearing, Judge Debevoise stated as to the value

of the objections made in the case [A834-35]:

THE COURT: You made us look at questions which

we may not otherwise have looked at... That’s part of

the process. I’m uncomfortable when nobody is opposing

something. I had a habeas corpus question which nobody

opposed. It made me very nervous.

The court’s opinion noted that “two of the law firms which

have reviewed the documents did not file objections to the

settlement.” [A843.] Perhaps as a result of the threat of dis-

qualification, Mr. Cooper’s firm did not file an objection.

Stokeley-Van Camp, then being acquired by Quaker Oats, also

did not file an objection.

8

On 10/4/83 notice of appeal was filed by Pan-O-Gold, John

E. Koerner & Co., Inc., and Imperial Products Corp. [A875.]

No further or formal action was taken in the district court

concerning disqualification, although at least one defendant

[i.e. Corn Sweeteners] had not settled. Also a hearing was held

on December 27, 1983 on the application of Mr. Koerner for

attorney’s fees [D881]. At that time, Mr. Koerner stated:

“T’m in the anomalous position if I’m successful on the appeal,

I do not get any fees except maybe one day.” [p. 2]

THE COURT: I would expect you to take over the

whole litigation and you would get enormous fees at your

successful conclusion of the litigation.

In response to the opposition of the proponents of the set-

tlement to the fee application that the objector should get no

fees, the court disagreed [pp. 8-9], and stated:

THE COURT: I would have been uncomfortable

granting the request without having someone come in

and oppose it and make everybody face these changes in

position [by the proponents of tHe settlement from vio-

lent opposition]. So in that sense, at least I had advo-

cates on both sides and the issue was raised and debated

and I could make a decision. Whereas if nobody had done

it, I would have been looking, perhaps, to somebody to

come and try to test why this change in position. So he

was contributing in that sense, and I would have been

more willing to approve the settlement. That may not

have been his intent, but that was the effect. [pp. 9-10.]

On November 23, 1983, respondents, calling themselves

“.ppellees,” moved in the Third Circuit “to disqualify counsel

for the appellants, Cochrane & Bresnahan, from prosecuting

this appeal, because of a manifest conflict of interest.”

9

While the name of DR&B is endorsed on the signature page,

no representative of DR&B signed the motion, ani the moving

parties ~ote themselves solely as “Attorneys for Appellees,

Plaintiff Class Representatives, and the Plaintiff Class.”

Neither Land O’Lakes nor General Mills filed the inotion nor

is alleged to support the motion. No affidavits were filed by

movers. The unsupported statement is made that “Land

O’Lakes affirmatively supports the settlements and is one

of the appellees against which Cochrane & Bresnahan is now

appealing.” [Memorandum at 2.]

C&B stated that prior to its withdrawal of October 18,

1983, it was “never advised” by DR&B that “it was ever in

a conflict position in this litigation .. .” [R at p. 5, Affidavit

of John A. Cochrane at { 6] This was after the filing of the

notice of appeal. [Affidavit at { 6.] At that time, Warlich

stated to Cochrane: “I don’t think you have a conflict.”

In their various memoranda in support of disqualification,

“Appellees” made conflicting factual representations, stating

first that “In the course of its representation of Land O’Lakes,

Cochrane & Bresnahan not only ‘had access to’ but actually

received client confidences.” [Mem. at 5] In their reply brief,

this statement is watered down to an averment that C&B may

have received such confidences. C&B unequivocally states that

“no confidential information was had from Land O’Lakes or

from General Mills” by C&B. [R at pp. 3, 4.]

On November 23, 1983, the motion to disqualify was filed

in the Third Circuit. The response of C&B was served on

December 8, 1983, with a reply from respondents shortly

after. On December 21, 1983, Judges Gibbons, Hunter, and

Garth stated: “The foregoing motion is referred to the panel

to which the merits of the appeal is referred.”

Disposition on the merits was listed for June 12, 1984, but

“argument” was directed to be “soley [sic] on the Motion to

10

Disqualify.” At the hearing, Clive Cummis, liaison counsel for

the proponents of the settlement, argued and admitted in

argument that the client had not filed the motion. DR&B was

not present. Messrs. Koerner and Cochrane appeared and

argued for C&B.

The decision of the Third Circuit of November 15, 1984

stated: “The motion to disqualify Cochrane & Bresnahan as

counsel to Pan-O-Gold before this court will be granted.”

[O-14.] However, that decision cryptically states at note 3.

“The status of Mr. Cochrane as a member of the steering com-

mittee is not questioned before this court.” Mr. Cochrane’s

status before the district court was not adverted to, nor was

he prohibited from acting on behalf of other appellants, John

E. Koerner & Co., Inc. and Imperial Products Corp. No deci-

sion on the merits has yet been rendered, although the matter

has been fully briefed by Petitioners and is otherwise ripe for

decision.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CONFLICTS WITH THE

JUDICIAL REQUIREMENT THAT DISQUALIFICA-

TION MOTIONS REQUIRE AN EVIDENTIARY HEAR-

ING AND A FULL FACTUAL RECORD, INCLUDING

DECISIONS OF THE SECOND, FIFTH, SIXTH,

EIGHTH, AND TENTH CIRCUITS.

Although the matter of disqualification was first raised in

the district court, the motion was filed in the Third Circuit

under circumstances where a resolution of “highly technical”

questions was reached on “disturbingly elusive facts.” Pett-

way v. American Cast Iron Pipe Co., 576 F.2d 1157, 1222 (5th

Cir. 1978), cert. den., 489 U.S. 1115 (1979). The decision of

the Third Circuit improperly states that “The parties tacitly

11

agree that this court should decide this motion on the present

record. The pertinent facts are not in dispute.” [O-7.] Both

the majority and the concurrence erroneously attempted to

excuse the failure to remand under the misapprehension that

the disqualification motion was not raised in the district court.

[O-8, 21.]

The importance of the issues to the client, the objectors,

and to the absent class dictated that there be an evidentiary

hearing, as was requested in oral argument, in which the

factual ambiguities and uncertain factual and legal positions

of the parties might have been fully explored. Compare Pett-

way at 1183, 1215. At oral argument, counsel for C&B cited

cases supporting the position that remand for an evidentiary

hearing was not only appropriate but was a matter of due

process. Melamed v. ITT Continental Baking Co., 534 F.2d 82,

84 (6th Cir. 1976) and Fred Weber, Inc. v. Shell Oil Co., 566

F.2d 602 (8th Cir. 1977), cert. den., 486 U.S. 905 (1978),

conflicting decisions from other circuits, were provided to

the Third Circuit by letter dated 6/18/84.

Other conflicting decisions include Hovsons, Inc. v. Secre-

tary of Interior of the United States, 711 F.2d 1208 (3d Cir.

1983), dissent of Judge Garth at 1226; Freeman v. Chicago

Musical Instrument Co., 689 F.2d 715, 723 (7th Cir. 1982);

Silver Chrysler Plymouth, Inc. v. Chrysler Motor Corp., 518

F.2d 751, 760 (2d Cir. 1975) ; J.P. Foley & Co., Inc. v. Vander-

bilt, 523 F.2d 1857, 13859 (2d Cir. 1975); Fullmer v. Harper,

517 F.2d 20, 21 (10th Cir. 1975). Compare Pettway, 576 F.2d

at 1216.

Lacking an evidentiary record, the court below was forced

to reach a number of factual conclusions adverse to C&B,

based on fictional presumptions belied by the scant record

and contrary to representations of C&B. Pettway, 576 F.2d at

1169, 1183.

12

C&B contended at the hearing that Land O’Lakes consented

to the continued representation of Pan-O-Gold, a matter not

adverted to in the moving papers of the respondents, and first

raised at oral argument. This would have cured any alleged

problem. In re Yarn Processing Patent Validity Litigation,

530 F.2d 83, 89 (5th Cir. 1976). Since DR&B chose not to

be present, despite notice, the court below improperly utilized

a presumption of non-consent to overcome a direct factual

representation of a distinguished member of its bar made in

oral argument that was and remains unrebutted. Silver Chrys-

ler, 518 F.2d at 759. Certainly such “luke-warm” [at best]

pressing of the motion should have been taken note of, Hov-

sons, 711 F.2d at 1213. The failure of Land O’Lakes to bring

such a motion is similarly evidence of consent and waiver.

Trust Corp. of Montana v. Piper Aircraft Corp., 701 F.2d 85,

87-88 (9th Cir. 1983). Black v. State of Missouri, 492 F.Supp.

848, 862 (W.D. Mo. 1980).

Moreover, a retainer by an additional party of previously-

engaged counsel in a complex multi-district class litigation,

the new client represented by its own counsel should be pre-

sumed to understand that a later decision by the first client

to accept or reject a settlement proffered at a later date does

not give rise to a conflict of interest reachable by 4, 5, and 9

of the Canons of Ethics. Allegaert v. Perot, 565 F.2d 246, 250-

51 (2d Cir. 1977). This is particularly true when the initial

pre-trial order properly preserves the right to object, the ad-

ditional client first consents to opposition to the settlement by

the attorney and then changes sides, Trinity Ambulance Ser-

vice v. G & L Ambulance Services, 1984-1 Trade Cases (CCH)

{ 65,945 at 68,090-94 (D. Conn. 1984), or where there has

been realignment during the case. Black, 492 F.Supp. at 862,

et seq. Compare Rhode, Class Conflicts in Ciass Actions, 34

Stan. L. Rev. 1183, 1191 (1981) and Garner v. Wolfinbarger,

13

430 F.2d 1093 (5th Cir. 1970), cert. den., 401 U.S. 974 (1971)

as discussed in Note, The Attorney-Client Privilege in Class

Actions: Fashioning an Exception to Promote Adequacy of

Representation, 97 Harv. L. Rev. 947, 956 (1984).

2. THE DECISION BELOW CONFLICTS WITH PRIOR

RESTRICTION OF STANDING TO CLIENTS OR

FORMER CLIENTS TO ASSERT DISQUALIFICATION

ON GROUNDS WHICH MAY BE WAIVED, INCLUD-

ING DECISIONS OF THE FIFTH AND SIXTH CIR-

CUITS.

The proponents were granted standing previously properly

limited to the other or former client. Yarn Processing, 530

F.2d at 89-90; Melamed v. ITT Continental Baking Co., 590

F.2d 290 (6th Cir. 1979); Black, 482 F.Supp. at 865-66.

While certain courts have expanded standing to assert dis-

qualification to other than the injured client, the rationale

for that extension, protection of the integrity of the court

system, is not only absent from this case but is disserved if

a capable and persuasive advocate of the rights of absentee

class members is eliminated because he has taken the position

that the settlement is unfair and its approval was inappro-

priate. Yarn Processing, 530 F.2d at 89-90. The opportunity

for extorted consent and unprofitable contentiousness has

been multiplied exponentially by the decision below, all to

the detriment of the conscientious attorney who may feel

duty bound to oppose a railroaded settlement. The potential

mischief of such a rule, if permitted to stand, is demonstrated

in that the two most knowledgeable of the four opponents of

the settlement, Messrs. Cooper and Cochrane, were thereby

eliminated. The case cited by the Third Circuit, Kevlik v.

Goldstein, 724 F.2d 844, 848, 850-851 (1st Cir. 1984), sug-

gests an awareness of the harm resulting from an indis-

criminate grant of standing to urge “tactical disqualification.”

14

3. DISQUALIFICATION SHOULD NOT BE PERMITTED

TO BE USED AS A TOOL TO THWART OBJECTION

TO CLASS SETTLEMENTS.

Disqualification is particularly inappropriate where no

findings have been made as to the effect of unrebutted evi-

dence that no confidences of Land O’Lakes have been provided

to C&B, whose representation of Land O’Lakes was solely to

make courtroom appearances. Rather the decision below con-

cludes that it would be “unfair to permit C&B to use against

its former client the information about the strengths and

weakness of the case gained from joint representation.”

[O-13.] In the absence of a remand or an adequate evidentiary

hearing, this was error. Freeman, 689 F.2d at 723. [Refusal to

disqualify a co-counsel, if the attorney was not privy to confi-

dential information]; National Souvenir Center, Inc. v. His-

toric Figures, Inc., 728 F.2d 503, 506 (D.C. Cir. 1984); Gas-

A-Tron of Arizona v. Union Oil Co. of California, 534 F.2d

1322, 1325 (9th Cir. 1976).

In Hovsons, 711 F.2d at 1212, a violation by the attorney

sought to be disqualified of both Canons 5 and 9 was assumed,

yet disqualification was not found to be appropriate, “even

assuming that the Code has been violated.” This was, in part,

because there was no prejudice to the client from the alleged

conflict. Hovsons, 711 F.2d at 1213. Silver Chrysler, 518 F.2d

at 757; Grant, 531 F.2d at 677.

No attempt in the present case was made to determine

whether there “may” be prejudice to the client, because the

client did not bring the motion and its counsel was not present

at oral argument. Moreover, as is discussed infra, there can be

no prejudice to the client by the appeal, whether successful or

not. Moreover, in the absence of a remand, the freezing of the

record through appeal would prevent the use of even hypo-

15

thetical information. Alternatively, the future use of any such

fictional information could be prohibited, permitting C&B to

retain their status as persuasive opponents of the unfair and

defective settlement.

Accordingly, neither the public interest nor any private in-

terest of the former clients is served by disqualification of

C&B. Instead disqualification will have again been used suc-

cessfully as a tool to suppress dissent and silence objection,

Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 339

(1981), an inappropriate result since dissent in class actions

is an important element in determining fairness. 97 Harv. L.

Rev. at 955; Pettway, 576 F.2d at 1215. Compare the discus-

sions of disqualification as a litigating strategy in W.T. Grant

v. Haines, 531 F.2d 671, 677-78 (2d Cir. 1976); Kramer v.

Scientific Control Corp., 5384 F.2d 1085, 1090 (3d Cir. 1976),

cert. den., 429 U.S. 830 (1976) ; Black, 492 F. Supp. at 862.

4, THE DECISION BELOW PRESENTS AN IMPORTANT

FEDERAL QUESTION CONCERNING THE EXTENT

TO WHICH PUBLIC INTEREST IN ADEQUATE

REPRESENTATION OF ABSENT CLASS MEMBERS

SHOULD BE SUBORDINATED TO PRIVATE INTER-

ESTS OF CLIENT/CLASS REPRESENTATIVES WHO

TARDILY WISH TO ACCEPT A CONTROVERSIAL

SETTLEMENT.

The decision below improperly fails to take into considera-

tion the interests of the class in a continuation of representa-

tion of their interests by Pan-O-Gold, a representative plain-

tiff, and by John Cochrane, an attorney appointed by the

district court to act on behalf of the class.

The statement twice made that “On this appeal, C&B does

not purport to represent anyone other than Pan-O-Gold” [0-8,

Q-12] ignores the interests of absentee and unrepresented class

16

members not to let the class settlement be unreviewed simply

because the proponents of the settlement and some class rep-

resentatives have chosen otherwise. Jn re General Motors Corp.

Engine Interchange Litigation, 594 F.2d 1106, 1121-23 (7th

Cir. 1979) ; Pettway, 576 F.2d at 1176-78. Compare Rhode at

1208, 1204, 1215, Developments in the Law—Class Actions, 89

Harv. L. Rev. 1318, at 1578, 1592 (1976); 94 Harv. L. Rev. at

1451, 1458, 1455; 97 Harv. L. Rev. at 947, 955, 959, and 960.

The factual situation of the present case is a corollary to the

general principle that as to settlements, the duty of loyalty

does not prohibit class counsel from treating named plaintiffs

in a fashion inconsistent with their roles as clients, Develop-

ments, Conflicts of Interest in the Legal Profession, 94 Harv.

L. Rev. 1247, 1446, 1447, 1449 (1981), particularly as here,

when the client allegedly wishes the attorney tv act in a man-

ner inconsistent with what C&B sees as the best interest of

both its clients [id. at 1454] that an appeal be taken. Saylor v.

Lindsley, 456 F.2d 896, 900 (2d Cir. 1971) ; Pettway, 576 F.2d

1177-78, 1216. Compare Walsh v. Great Atlantic & Pacific Tea

Co., Inc., 726 F.2d 956, 964 (8d Cir. 1983), cited by respon-

dents on the merits and reaching an opposite result.

5. CONSIDERATION OF DISQUALIFICATION SHOULD

HAVE AWAITED A DECISION ON THE MERITS UN-

AFFECTED BY ANY ALLEGED CONFLICT.

The timing of the disqualification ordered by the Court

below may imply a bias in favor of a controversial settlement

asserted to be unfair by a member of the Plaintiff’s Steering

Committee, now sought to be disqualified in retaliation for his

objection. The issue of the validity, vel non, of the settlement

is and has + 2n ripe for disposition by the court below. The

briefs and appendices have been filed; the date for argument

17

has passed; the parties await a decision. Why then, since

nothing more can be done by C&B, must important questions

of law and fact be resolved in a summary and ad hoc manner?

Should the judgment approving the settlement be affirmed,

further dissent from C&B will not be possible, removing any

conflict or the chance of using non-existent confidences. If

the settlement is vacated or the case remanded for additional

discovery as originally advocated by DR&B on behalf of Land

O’Lakes, then C&B would have acted properly, as was DR&B’s

initial impulse and in contrast to the actions of the proponents

of the settlement. Mendoza v. United States, 623 F.2d 1338,

1844, 1844, 1846-47 (9th Cir. 1980), cert. den. sub nom.,

Sanchez v. Tucson Unified School Dist. No. 1, 450 U.S. 912

(1981). This would also heal any conflict, since Land O’Lakes

would presumably reassess its position or would enter into a

separate settlement with the defendants. Jn re Eastern Sugar

Antitrust Litigation, 697 F.2d 524, 530 (3d Cir. 1982).

Adding to the confusing and unsatisfactory nature of the

order of the court below is that Mr. Cochrane’s status as a

member of the steering committee has not been questioned.

Moreover, Mr. Cochrane’s status before the district court was

not adverted to, nor was he prohibited from acting as an

independent class attorney or on behalf of respondents and

objectors other than Pan-O-Gold.

Regardless, therefore, of the outcome of the motion to dis-

qualify, C&B can and should be permitted to act independently

to prosecute this appeal for the absent class members, Rhode

at 1186, 1203, Deposit Guaranty, 445 U.S. at 340, 342, n.3.

Norman Norell, Inc. v. Federated Department Stores, Inc.,

1978 Trade Cases (CCH) {| 62,037 at 74,741-42 (S.D. N.Y.

1978).

Finally, some weight should have been given to the choice

of Pan-O-Gold of C&B as its counsel, Trinity, 1984-1 Trade

oo

18

Cases { 65,945 at 68,091-92; Foley, 523 F.2d at 1359; Kramer,

534 F.2d at 1094 (Rosenn, concurring) since the alleged con-

flict was the result of a decision of Land O’Lakes.

CONCLUSION

For the foregoing reasons, Petitioners respectfully pray

that a writ of certiorari issue to review the Judgment and

Opinion of the United States Court of Appeals for the Third

Circuit.

Respectfully submitted,

LOUIS R. KOERNER, JR.

LAW OFFICES OF

LOUIS R. KOERNER, JR.

1204 Jackson Avenue

New Orleans, LA 70130

(504) 581-9569

JOHN A. COCHRANE

COCHRANE & BRESNAHAN

24 East Fourth Street

St. Paul, MN 55101

(612) 298-1950

Counsel for Petitioners

APPENDIX

IN THE

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1984

ATES

No.

COCHRANE & BRESNAHAN,

PAN O’GOLD, INC., IMPERIAL PRODUCTS CORP.,

AND JOHN E. KOERNER & CO., INC.,

Petitioners,

Vv.

PLAINTIFF CLASS REPRESENTATIVES AND

THE PLAINTIFF CLASS,

Respc ndents.

IN RE: CORN DERIVATIVES ANTITRUST LITIGATION

(MDL 414)

APPENDICES TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

LOUIS R. KOERNER, JR.

LAW OFFICES OF

LOUIS R. KOERNER, JR.

1204 Jackson Avenue

New Orleans, LA 70130

(504) 581-9569

JOHN A. COCHRANE

COCHRANE & PBRESNAHAN

24 East Fourth Stree.

St. Paul, MN 55101

(612) 298-1950

Counsel for Petitioners

INDEX OF APPENDICES

Page

Appendix A—

Opinion and Judgment of the Court of Appeals .-—S_ ila

Appendix B—

Order of the Court of Appeals Denying Petition for

Rehearing en Banc Papee ees oa ee

Appendix C—

F.R.A.P. Rule 46(c) and Rule 1.9 of ABA Rules of

Professional Conduct RE, OO ae le

Appendix D—

Correspondence between DOHERTY, RUMBLE &

BUTLER and COCHRANE & BRESNAHAN con-

cerning fees and duties in the Corn Derivatives

Antitrust Litigation _. Set Fe a ee ld

Letter from Eugene M. Warlich of DOHERTY,

RUMBLE & BUTLER to Mr. Richard H. Magnu-

OOS states ort LPibetedecr eek e See 1d, 2d

Letter from Eugene Warlich to John A. Cochrane 2d, 3d

Letter from John A. Cochrane to Eugene Warlich 3d

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 83-5729

IN RE: CORN DERIVATIVES

ANTITRUST LITIGATION

(MDL 414)

John E. Koerner & Co., Inc.,

Imperial Products Corporation, and

Pan-O-Gold, Inc.,

Appellants.

Appeal from the United States

District Court for the

District of New Jersey

(D.C. Mise. No. 80-0059)

Argued: June 12, 1984

Before: SEITZ and ADAMS, Circuit Judges,

and LATCHUM, Senior District Judge*

(Opinion Filed: November 15, 1984)

Louis R. Koerner, Jr. (argued)

LAW OFFICES OF LOUIS R. KOERNER, JR.

New Orleans, LA 70130

[John E. Koerner & Co., and

Imperial Products Corp.]

*The Honorable James L. Latchum, Senior United States District

Judge for the District of Delaware, sitting by designation.

2a

John A. Cochrane (argued)

COCHRANE & BRESNAHAN

St. Paul, Minnesota 55102

{Pan-O-Gold Baking Co., Inc.]

Counsels for Appellants

Cleve S. Cummis (argued)

Charles J. Walsh

SILLS, BECK, CUMMIS, ZUCKERMAN,

RADIN & TISCHMAN, P.A.

Newark, N.J. 07102

[Food Foundation, Inc.]

Arnold Levin

LEVIN & FISHBEIN

Philadelphia, PA 19106

[Kelco Industries]

David Berger

BERGER & MONTAGUE, P.C.

Philadelphia, PA 19103

[Golden Quality Ice Cream Co.]

Douglas V. Rigler

FOLEY & LARDNER

Washington, D.C. 20006

[G. Heileman Brewing Co., Inc.]

Joel C. Meredith

Bruce K. Cohen

Steven J. Greefogel

MEREDITH & COHEN, P.C.

Philadelphia, PA 19103

{Eastern Candy Co., Inc.]

Harold E. Kohn

Dianne M. Nast

KOHN, SAVETT, MARION & GRAF, P.C.

Philadelphia, PA 19103

[Bodines, Inc., Cumberland Farms Dairy, Inc.]}

Morton M. Maneker

PROSKAUER, ROSE, GOETZ & MENDELSOHN

New York, NY 10022

[A.E. Staley Mfg. Co.]

Michael H. King

ROSS & HARDIES

Chicago, IL 60611

[Consolidated Packaging Corp.]

Warren Rubin

GROSS & SKLAR, P.C.

Philadelphia, PA 19102

[Marstan Industries, Inc.]

Stanley D. Robinson

KAYE, SCHOLER, FIERMAN, HAYS &

HANDLER

New York, NY 10022

[Nabisco, Inc.j

Guido Saveri

SAVERI & SAVERI

San Francisco, CA 94104

[Kalva Corp. & Virnelson Bal ry, Inc.]

William M. Dallas, Jr.

SULLIVAN & CROMWELL

New York, NY 10004

[Amstar Corp.]

John P. Ryan, Jr.

Robert C. Schnitz

McBRIDE & BAKER

Chicago, IL 60602

[Grain Processing Corp. ]

Robert A. Skirnick

WOLF, POPPER, ROSS, WOLF & JONES

New York, NY 10022

[Eastern Candy Co., Korbro Oil, and

Plantation Confection Co., Inc.]

Barbara A. Mentz

HALL, McNICOL, HAMILTON & CLARK

New York, NY 10017

[American Maize-Products Co.]

Keith E. Pugh, Jr.

Edward P. Henneberry

HOWRY & SIMON

Washington, DC 20006

[Hubinger Co.]

Terrence C. Sheehy

Peter ©. Moll

HOWRY & SIMON

Washington, DC 20006

[Anheuser-Busch, Inc.]

Joseph Barbash

Michael E. Wiles

DEBEVOISE & PLIMPTON

New York, NY 10022

[National Starch & Chemical Corp.]

5a

John L. McGoldrick

McCARTER & ENGLISH

Newark, NJ 07102

[Tropical Preserving Co., Inc.]

Jeremiah F. Hallisey

O’BRIEN & HALLISEY, P.C.

San Francisco, CA 94121

[Sanitary Bakery]

Perry Goldberg

SPECKS & GOLDBERG, LTD.

Chicago, IL 60606

[Superior Beverage Co.]

James R. Irwin

Steven W. Berman

SHIDLER, McBROOM & GATES

Seattle, WA 98104

[Penick & Ford Ltd.]

Sheldon O. Collen

FRIEDMAN & KOVEN

Chicago, IL 60604

[Federal Bake Shops, Inc.]

William A. Garrigle

GARRIGLE, CHIERICI & PALM

Cherry Hill, NJ 08003

[Bodines, Inc. & Cumberland Farms Dairy, Inc.]

Richard D. Catenacci

CONNELL, FOLEY & GEISER

Newark, NJ 07102

[liaison counsel for appellees]

6a

Lawrence A. Whipple, Jr.

WHIPPLE, ROSS & HIRSH

Newark, NJ 07102

[White Oak Ice Cream, Inc. & Oak

Point Dairies of New Jersey]

Eugene M. Warlich

DOHERTY, RUMBLE & BUTLER, P.A.

St. Paul, Minnesota 55101

[Land O’Lakes, Inc.]

Paul J. Linker

ROBINSON, WAYNE, LAVIN, RICCIO & LaSALA

Newark, NJ 07102

[United A.G. Cooperative, Inc.]

Burton H. Brody

STANDARD BRANDS INC.

New York, NY 10022

[Standard Brands Inc.]

Norman R. Carpenter

FAEGRE & BENSON

Minneapolis, Minnesota 55402

[Archer Daniels Midland Co.]

Robert H. Weir

ROBERT H. WEIR, A.P.C.

San Jose, CA 95150

[Keystone Co.]

Mario N. Alioto

ALIOTO & ALIOTO

San Francisco, CA 94123

[Falstaff Brewing Corp.]

Ta

Jack L. Block

SACHNOFF, WEAVER & RUBENSTEIN

Chicago, IL 60611

[Health Care Industries]

Seymour Kurland

WOLF, BLOCK, SCHORR & SOLIS-COHEN

Philadelphia, PA 19102

[Finkelstein Farms, Inc.]

Allen 8. Joslyn

Denis McInerney

CAHILL, GORDON & REINDEL

New York, NY 10005

[CPC International, Inc.]

Albert G. Besser

HANNOCH, WEISMAN, STERN,

BERKOWITZ & KINNEY

Newark, NJ 07102

[Grain Processing Corp.]

Counsels for Appellees

8a

OPINION OF THE COURT

SEITZ, Circuit Judge.

I,

A group of attorneys representing certain members of the

plaintiff class,! who are consumers of corn derivative prod-

ucts, move for the disqualification of Cochrane & Bresnahan

as attorneys for the appellant Pan-O-Gold Baking Company.

This motion was made during the pendency of this appeal

challenging an order of the district court approving the settle-

ment of the class action.

II. FACTS

The parties tacitly agree that this court should decide this

motion on the present record. The pertinent facts are not in

dispute. The St. Paul, Minnesota, law firm of Cochrane &

Bresnahan (“C&B’) was privately retained by the Pan-

O-Gold Baking Company, Inc. (“Pan-O-Gold”) and Land

O’Lakes, Inc. (“Land O’Lakes”) to file separate antitrust

complaints against the major producers of corn derivative

products. Several other actions were brought throughout the

country, and all the actions were consolidated by the Multi-

district Litigation Panel into the present action in the district

court in New Jersey. C&B continued to represent both Pan-

O-Gold and Land O’Lakes, who were named plaintiffs, as well

as a plaintiff class member, General Mills, in this litigation.

After consolidation, a partner of C&B, John Cochrane, was

named by the district court to be a member of the plaintiffs’

steering committee, the group of attorneys that guided the

litigation of this matter.

Before this action reached trial, a settlement was negoti-

ated. Prior to the hearing by the district court on the fairness

1The attorneys purport to speak for the plaintiff class. In view of

our resolution of the standing issue, it is unnecessary to decide

whether these attorneys in fact speak for the whole class.

9a

of the settlement, John Cochrane filed a written objection to

the settlement on behalf of Pan-O-Gold and Land O’Lakes.

Later, on July 30, 1983, Cochrane was informed by an attor-

ney for Land O’Lakes and General Mills that those companies

had decided to accept the settlement if it were approved by

the district court.

On September 7, 1983, the district court approved the set-

tlement. On October 4, 1983, John E. Koerner & Company,

Imperial Products Corporation and Pan-O-Gold, filed a notice

of appeal. C&B mailed to the district court a notice of with-

drawal as counsel of record for Land O’Lakes on October 18,

1983.2 On this appeal, C&B does not purport to represent

anyone other than Pan-O-Gold.

The movants then filed this motion to disqualify C&B as

attorneys for Pan-O-Gold before this court on the ground

that C&B’s continued representation of Pan-O-Gold would

violate the controlling standards of professional conduct.*

III. DISCUSSION

A. A DISQUALIFICATION MOTION BEFORE THE

COURT OF APPEALS.

This disqualification issue was not raised in the district

court. We believe, however, that this motion is properly before

us. One of the inherent powers of any federal court is the

admission and discipline of attorneys practicing before it.

See Matter of Abrams, 521 F.2d 1094, 1099 (3d Cir.), cert.

den., 423 U.S. 1038 (1975) (each court may create indepen-

dent standards and rules for the admission and discipline of

attorneys before it) ; Ramos Colon v. United States Attorney,

576 F.2d 1, 3 (ist Cir. 1978). See also Fed. R. App. P. 46(c)

(granting courts of appeals broad powers to discipline attor-

neys).

2 C&B states that it also withdrew as counsel to General Mills.

8 The status of Mr. Cochrane as a member of the steering committee

is not questioned before this court.

10a

To resolve this motion, we must determine the governing

standard for professional conduct before this court. Our court

of appeals has never formally adopted any particular formula-

tion of the standards of professional conduct. The lack of

formal standards, however, cannot mean that the attorneys

appearing before us do not have ethical obligations and duties.

See United States v. DeFalco, 644 F.2d 132 (3d Cir. 1979)

(en banc) (duty of professicnal conduct required before the

court of appeals). Also, while the exact contours of that duty

have not been stated, the vast majority of the courts in this

country have adopted, with slight variation, the Code of Pro-

fessional Responsibility promulgated by the American Bar

Association, and thus, the basic principles of an attorney’s

duties and responsibilities are clear and easily applied. Fur-

ther, since each of the attorneys in C&B are bound by the

duties imposed by the bars of their respective states, they have

notice of the common principles against conflicts of interests

imbedded in the national standards of current practice.

V'e believe that the appropriate guidance for finding the

current national standards of ethical norms lies in the stan-

dards promulgated by the American Bar Association. Cf.

Strickland v. Washington, —— U.S. ——, 104 S. Ct. 2052,

2065 (1984) (leoking to ABA standards in determining pre-

vailing norms of practice for sixth amendment claim). Ac-

cordingly, we will apply the principles and rules set forth in

the ABA Model Code of Professional Responsibility, and in

the recently approved Model Rules of Professional Conduct.

B. STANDING

The movants, purporting to speak for the plaintiff class,

claim that C&B breached its duty of professional responsi-

bility by taking a position on appeal for Pan-O-Gold adverse

to that of Land O’Lakes in litigation in which C&B had pre-

viously represented both parties.

lla

C&B contends that the plaintiff class, as an entity, lacks

standing to challenge the alleged breach of duty to Land

O’Lakes. They argue that the correlative right to C&B’s duty

belongs only to the former client, Land O’Lakes. See In re

Yarn Processing Patent Validity Litigation, 530 F.2d 83, 88-

89 (5th Cir. 1976) (requiring disqualification motion to come

from former client). But see Kevlik v. Goldstein, 724 F.2d 844

(1st Cir. 1984) (disqua'ification motion may be made by any

opposing attorney under his duty to report disciplinary viola-

tions). Assuming without deciding that a motion to disqualify

must be brought by a former client, we believe that the re-

quirement is satisfied because the present record disclosec

that Land O’Lakes, through their current attorneys, joined

this motion to disqualify C&B. We, therefore, consider this

motion as brought by Land O’Lakes.

Further, because there is a conflict between the positions

of two clients who had individually and privately retained

C&B, we may consider this case solely in the context of a

conflict of interest between the attorney and those clients. We

consider this to be a case where two clients retained the same

law firm to file suit, and where, later, that law firm chose to

represent one of those clients against the other in the course

of the same litigation. In view of our evaluation of the situa-

tion, we emphasize that it is unnecessary to address the con-

siderable ethical problems that might arise between an attor-

ney named by the court to represent the class and membeis

of the class, or the general problems that might arise when

some members of a class favor a settlement and others do

not. Cf. Developments, Conflicts of Interest in the Legal Pro-

fession, 94 Harv. L. Rev. 1247, 1447-57 (1981) (discussing

theories of representaticn by class action attorneys).

12a

C. THE DUTIES OWED BY C&B

C&B was retained by Land O’Lakes in this litigation and

owed their client a duty of loyalty. In addition, the attorneys

of C&P, as members of the bar, owe a general duty to main-

tain public confidence in the integrity of the bar. In re Eastern

Sugar Antitrust Lit.gation, 697 F.2d 524, 530 (3d Cir. 1982).

Under the ABA Code, these standards are reflected in Canons

5 and 9.

C&B owed Land O’Lakes a duty of vigorous advocacy. C&B

contends, however, that while it may have owed Land O’Lakes

that duty, it no longer owes them a duty of loyalty because

C&B withdrew as counsel for Land O’Lakes. The duty of

loyalty does not always detach when the representation ends.

A client has an expectation that the attorney will diligently

pursue his goals until the matter is completely resolved, ab-

sent an effective waiver. In litigation, an attorney may not

abandon his client and take an adverse position in the same

case. This is not merely a matter of revealing or using the

client’s confidences and secrets, but of a duty of continuing

loyalty to the client.

Under the ABA Code, there was no express prohibition

against representation of interests adverse to former clients,

althc ugh this court has used Canon 9, “the appearance of

impropriety,” to imply such a duty. See ¢.g., Richardson v.

Hamilton International Corp., 469 F.2d 1382, 1385-86 (3d Cir.

1972), cert. den., 451 U.S. 986 (1973). Under the ABA Model

Rules, this duty is clearly stated in Rule 1.9:

A lawyer who has formerly represented a client in a

matter shall not thereafter:

(a) represent another person in the same or substan-

tially related matter in which that person’s interests are

materially adverse to the interests of the former client

unless the former client consents after consultation.

13a

ABA Model Rules of Professional Conduct, Rule 1.9. A rule

against representation of interests adverse to a former client

in the same or substantially related litigation has several pur-

poses. It is a prophylactic rule to prevent even the potential

that a former client’s confidences and secrets may be used

against him. Without such a rule, clients may be reluctant to

confide completely in their attorneys. Second, the rule is im-

portant for the maintenance of public confidence in the in-

tegrity of the bar. See Richardson, supra. Finally, and im-

portantly, a client has a right to expect the loyalty of his

attorney in the matter for which he is retained.

We recognize that in some cases there may be relevant

countervailing considerations. This court has often employed

a balancing test in determining the appropriateness of the

disqualification of an attorney. See e.g. United States v. Miller,

624 F.2d 1198, 1201 (3d Cir. 1980). In determining the rele-

vant considerations, we once again note that in this appeal

C&B does not purport to represent the class. Therefore, a

disqualification of C&B for this appeal would not require

evaluation of the prejudice to the class. With respect to Pan-

O-Gold and Land O’Lakes, C&B represented both of these

clients for several years in this complex antitrust litigation.

Balanced against Land O’Lakes’ interests in the loyalty of its

attorney are the interests of Pan-O-Gold in retaining its

chosen counsel who has extensive familiz.ity with the factual

and legal issues invoived, and in avoiding the time and ex-

pense required to adequately familiarize a new attorney with

the matter.

l4a

While disqualification would serve to increase the costs of

litigation for Pan-O-Gold, it would be unfair, appearances

apart, to permit C&B to use against its former client the

information about the strengths and weaknesses of the case

gained from the joint representation. Under these circum-

stances, C&B must be disqualified.

D. CONSENT BY THE FORMER CLIENT

C&B contends that it is still proper for it to represent Pan-

O-Gold because Land O’Lakes consented to the continued rep-

resentation by C&B. However, the burden of showing consent

is on C&B, IBM v. Levin, 579 F.2d 271, 282 (3d Cir. 1978),

and there is no indication in any of the papers or affidavits

submitted that Land O’Lakes consented to C&B's continued

representation of Pan-O-Gold during this appeal.‘ Further

we note that this disqualification motion was brought, inter

alia, by Land O’Lakes’ attorney and we must infer that Land

O’Lakes wishes C&B to be disqualified. Because we do not

find consent, we do not reach the issue of whether there may

be some circumstances where even the consent by the former

client will not immunize an attorney against a disqualification

based upon the appearance of impropriety and the mainte-

nance of the integrity of the bar. See ABA/BNA Lawyers’

Manual on Professional Conduct 51:207 (1984).

IV.

The motion to disqualify Cochrane & Bresnahan as counsel

to Pan-O-Gold before this court will be granted.

ADAMS, J., concurring.

4 Cochrane stated at oral argument that Land O’Lakes gave its con-

sent to C&B’s continued representation of Pan-O-Gold. However, he

made no representations to that effect in his affidavit or reply to

the motion. Neither can we find any indication of consent in the

district court record. Under these circumstances, we do not believe

a question of fact has been raised.

l5a

I.

I agree with the result reached in this case, as well as with

the majority’s exposition of the principles which generally

govern conflicts of interest in the traditional lawyer-client

setting. I write separately to caution that those general prin-

ciples must be applied in a carefully considered fashion to con-

texts other than those in which they arose.

Perhaps no area of the law provokes as much litigation con-

cerning ethical issues as class actions. See Waid, Ethical Prob-

lems of the Class Action Practitioner: Continued Neglect by

the Drafters of the Proposed Model Rules of Professional Con-

duct, 27 Loy. L. Rev. 1047, 1047 (1981). Moreover, the Code of

Professional Responsibility, Model Rules of Professional Con-

duct, as well as bar association opinions provide little guidance

to the class action practitioner. See id. at 1048-49; Develop-

ments in the Law—Conflicts of Interest in the Legal Profes-

sion, 94 Harv. L. Rev. 1247, 1448 (1981). Courts confronting

an ethical problem in the class action setting must focus on

two points. First, courts cannot mechanically transpose to

class actions the rules developed in the traditional lawyer-

client setting context; and second, a resolution of such issues

would appear to call for a balancing process that in most cases

should be undertaken initially by the district court.

Il.

The genera! rules described by the majority regarding the

duties of loyalty and confidentiality were developed for and

arose out of the traditional lawyer-client ambience in which

the roles of the attorney and the client are well defined. The

Code of Professional Responsibility, for example, envisions

the attorney primarily as an advocate of the interests of one

client. In such a setting it is usually possible to foresee the

exact nature of any conflict of interest problem that might

16a

arise out of multiple or successive representations. Generally,

a lawyer can, with little adverse impact on a prospective client,

.uard against such situations by declining a representation.

Courts and commentators have noted that this traditional

model cannot be carried over unmodified to the class action

arena, since no clear allocation of decisionmaking responsibil-

ity has emerged between the attorney and class members. See

Pettaway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1176

(5th Cir. 1978), cert. denied, 439 U.S. 1115 (1979); Develop-

ments in the Law—Class Actions, 89 Harv. L. Rev. 1318, at

1578 (1976). The obligation of counsel representing a class

runs to the class as a whole, although as a general matter class

counsel may have worked closely only with the named parties.

See Greenfield v. Villager Industries, Inc., 483 F.2d 824, 832

(3d Cir. 1973); Rhode, Class Conflicts in Class Actions, 34

Stan. L. Rev. 1183, 1203 (1981); Conflicts of Interest, 94

Harv. L. Rev. at 1451. Having all been affected similarly, class

members generally know the initial objective of the class suit

and accept the broad goals of the action. Despite the fact that

class members are in some sense similarly situated, however,

conflicting interests among the many individuals represented

by a single attorney in a class action are frequently inevitable

at some point during the litigation. Conflicts of Interest, 94

Harv. L. Rev. at 1447; Class Actions, 89 Harv. L. Rev. at 1594.

“Representative suits carry with them an accepted structural

risk that conflicts may arise between groups of class mem-

bers.” Mendoza v. United States, 623 F.2d 1338, 1344 (9th Cir.

1980), cert. denied sub nom, Sanchez v. Tucson Unified School

Dist. No. 1, 450 U.S. 912 (1981).

This conflict most often, but not always, occurs over ques-

tions of relief. See J. Chambers, Class Action Litigation: Rep-

resenting Divergent Interests of Class Members, 4 U. Dayton

17a

L. Rev. 353, 356 (1979). For example, the case at hand ‘n-

volves objections to a proposed settlement, a rather common

occurrence in that class actions many times are settled prior to

or shortly after class certification. See Class Actions, 89 Harv.

L. Rev. at 1536. When absent class members disagree with

named plaintiffs regarding the adequacy of a settlement, class

counsel will more often than not side with named parties. /d.

at 1593. Absent class members who challenge a settlement thus

may encounter as an adversary the class counsel, who repre-

sented them and arguably owes them a continuing duty of

loyalty. Yet many commentators have noted that class counsel

regularly defend the settlement against objectors, and even

file appeals from district courts’ disapprovals of settlements.

E.g.,2 H. Newberg, Newberg on Class Actions § 2710 (1977).

Others have argued that the attorney “ought to have the op-

portunity to represent the position of that side of the split

class which he or she supports.”’ Chambers, 4 U. of Dayton L.

Rev. at 357.

Under a strict application of the ethical rules, however,

whenever class members disagree about the propriety of a

settlement, an attorney representing discordant class members

would be required to withdraw completely from the litigation.

In such a case, an attorney’s withdrawal would seemingly be

automatic, regardless of which side the attorney agrees with.

See also Waid, 27 Loy. L. Rev. at 1062; Class Actions, 89 Harv.

L. Rev. at 1593 (both reading Code same way). Although this

may promote the salutary ends of confidentiality and loyalty,

it would undoubtedly have a serious adverse effect on class

actions. Treating the relations between counsel and named and

absent class members as identical to an attorney’s relationship

with individual clients outside the class action context would

18a

lead courts to find a conflict of interest in many class actions

and to call for the typical remedial responses, such as disqual-

ification.

Class action litigation frequently promotes and protects the

legal interests of those whose rights might not be protected at

all without the class action device. Any approach resembling a

per se disqualification of an attorney who represents multiple

parties in a class, or the entire class, when any member dis-

agrees, might well undermine the attractiveness and utility of

the class action device by discouraging multiple representation.

If a class attorney is automatically prevented from con-

tinuing to represent the named parties or a majority of a

class which supports a settlement, the minority dissenting

class members are granted considerable leverage in the litiga-

tion by being able to force the majority to seek new counsel.

Similar problems arise if counsel is not permitted to side with

the objectors. In many types of class actions, when notice of

settlement is given to the class, no single individual may have

a sufficient stake in the outcome of the litigation to warrant

the expense of organizing opposition to the proposed settle-

ment and obtaining separate representation. Rhode, 34 Stan.

L. Rev. at 1215. In less celebrated cases and in those in which

the availability of a statutory attorney’s fee is uncertain, it

often will not be possible for dissenters to attract qualified

counsel. See generally Handler, The Public Interest Activities

of Private Practice Lawyers, 61 A.B.A.J. 1288 (1975). Thus,

a rule requiring automatic disqualification may well penalize

dissent, and thereby deprive the court of the important as-

sistance which objecting class members render by challenging

the fairness of a class action settlement. Class Acticens, 89

Harv. L. Rev. at 1566-67.

a eee ee ee ee Oe ee eel hel

19a

ITI.

As section C of the majority opinion suggests, the appro-

priate process would appear to be one of balancing. The costs

to litigants and the class action device should be weighed

carefully against the need to enforce the lawyer’s duties of

loyalty and confidentiality. The duty of | yalty to a client has

been embodied in the Code through a prohibition of any ap-

pearance of impropriety. “Public confidence in the integrity

of legal institutions serves as an over-arching consideration

beneath which attorneys practice their profession. The sem-

blance of unethical behavior by practitioners may well be as

damaging to the public image as improper conduct itself.”

Silver Chrysler Plymouth, Inc. v. Chrysler Motor Corp., 518

F.2d 751, 759 (2d Cir. 1975) (Adams, J., concurring).

Yet the duty owed in a class action is in some ways unique

and cannot be equated with that in the traditional lawyer-

client setting. The inherent risks in a class action are “ac-

cepted structural” facts, known to those who choose to par-

ticipate in a class. Moreover, the legal system has responded

to this risk with an array of carefully calibrated safeguards.

See generally Fiss, The Forms of Justice, 93 Harv. L. Rev. 1

(1979) (distinguishing class action “structural reform” litiga-

tion from traditional “dispute resolution” model). Courts have

affirmed the special responsibility placed upon the trial judge

to protect the rights of class members. Mendoza, 623 F.2d at

1344; Grunin v. International House of Pancakes, 513 F.2d

114, 123 (8th Cir.), cert. denied, 423 U.S. 864 (1975). In ad-

dition, the Federal Rules of Civil Procedure impose strict

procedural requirements on the conduct of class actions. See

Fed. R. Civ. P. 23. Of special significance is the trial court’s

role in the supervision and approval of class settlements, based

on the criterion of fairness. The attorney’s duty to the class

20a

requires him or her to make known to the court any conflicts

i order that the court may take appropriate steps to protect

the interests of all class members. Pettaway, 576 F.2d at 1176.

Taken together these realities of class action practice sug-

gest that the mere appearance of impropriety when a lawyer

attacks or defends a class settlement against the interest of

a formerly represented class member may well be insufficient

in itself to be the basis for an automatic disqualification.'

Similarly, although the importance of maintaining client

confidences cannot be minimized, a rigid “prophylactic rule”

in the area of client confidentiality in class actions would

appear to be inappropriate. Cf. Note, The Attorney-Client

Privilege in Class Actions: Fashioning an Exception to Pro-

mote Adequacy of Representation, 97 Harv. L. Rev. 947 (1984)

(confidentiality should give way when it impedes basic rep-

resentational aspects of a class action). Instead in a class

action context in which disqualification potentially threatens

the viability of the representational suit, the court should

require some showing by the party urging disqualification.

Relevant considerations include the amount and nature of the

information that has been proffered to the attorney, its avail-

ability elsewhere, its importance to the question at issue, such

as settlement, as well as actual prejudice that may flow from

that information. Cf. Silver Chrysler, 518 F.2d at 759 (Adams,

J., concurring) (suggesting, because of countervailing factors,

a showing of actual knowledge of confidential and pertinent

1 Moreover, although considerable knowledge and experience might

have been gained by the attorney in the early stages of a case, such

information need not in and of itself jeopardize or unfairly unbal-

ance the case of the class members the attorney does not side with.

The opposing clients as members of the original suit might well

enjoy the advantage of having gained important information with

which to wage their opposition. Chambers, 4 U. of Dayton L. Rev.

at 357.

378 mer

2la

information).* In camera review of the information might be

in order in some cases to safeguard the class members from

the harm caused by disclosure in open court. See Note, 97

Harv. L. Rev. at 960. These factors should then be balanced

against the costs to the opposing party, and the possibility

of securing new counsel. Such costs will likely be affected by

the point in the litigation at which the conflict develops; the

burden is perhaps less at earlier stages.

IV.

The disqualification motion at issue in the present appeal

was first raised before this Court. As the majority notes, this

motion is properly before us; a federal court has inherent

powers over the discipline of attorneys practicing before it.

In an appropriate case, of course, the appellate court may

resolve such an issue in the first instance. In some proceed-

ings, the foregoing analysis would suggest a remand to the

district court, which is in a more advantageous position to

balance the factors involved than is an appellate court lacking

factfinding resources. Alternatively, the appellate court might

appoint a special master.

Nevertheless, I cannot say that the motion to disqualify the

firm of Cochrane and Bresnahan has been improvidently

granted. Sufficient evidence is extant in the present record

2In the criminal context society arguably has a greater interest in

preventing conflicts of interest; furthermore, the right to effect.ve

assistance of counsel is guaranteed by the Sixth Amendment. The

Supreme Court has held that a defendant who objects before trial]

to multiple representation by counsel must show that the potential

conflicts impermissibly imperil his right to a fair trial. Cuyler v.

Sullivan, 446 U.S. 335, 348 (1979). A defendant who raises no objec-

tion at trial must demonstrate that a conflict of interest actually

affected the adequacy of representation, although the Court does

not require any indulgence of “nice calculations as to the amount

of prejudice” attributable to the conflict. Jd. at 349; Glaser v. United

States, 315 U.S. 60, 76 (1942).

22a

to permit a proper balancing process as outlined above. Some

of the important factors weighing towards disqualification

are that the firm represented only three class members, not

the entire class or a large portion of it; that a large amount

is at stake for each litigant; and that the party potentially

forced to proceed without chosen counsel is a large corporation

with ample resources to enable it to secure new counsel.

A True Copy:

Teste :

Clerk of the United States Court of Appeals

for the Third Circuit

1b

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 83-5729

IN RE: CORN DERIVATIVES

ANTITRUST LITIGATION

(MDL 414)

John E. Koerner & Co., Inc.,

Imperial Products Corporation, and

Pan-O-Gold, Inc.,

Appellants.

Appeal from the United States District Court

for the District of New Jersey

(D.C. Misc. No. 80-0059)

SUE PETITION FOR REHEARING

PRESENT: ALDISERT, Chief Judge, SEITZ, ADAMS, GIB-

BONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM,

SLOVITER, BECKER, Circuit Judges and LATCHUM,

District Judge.*

The petition for rehearing filed by appellants, in the above

entitled case having been submitted to the judges who partici-

pated in the decision of this court and to all the other available

circuit judges of the circuit in regular active service, and no

*The Honorable James L. Latchum, United States Senior District

Judge for the District of Delaware, sitting by designation.

2b

judge who concurred in the decision having asked for rehear-

ing, and a majority of the circuit judges of the circuit in regu-

lar active service not having voted for rehearing by the court

in banc, the petition for rehearing is denied.

By the Court

SEITZ

Circuit Judge

DATED: January 7, 1985

le

APPENDIX C

F.R.A.P. Rule 46(c) and Rule 1.9 of ABA Rules of Profes-

sional Conduct

Rule 46(c)} Federal Rules of Appellate Procedure.

(c) Disciplinary power of the Court over Attorneys. A

court of appeals may, after reasonable notice and an oppor-

tunity to show cause to the contrary, and after hearing, if re-

quested to take any appropri \te disciplinary action against

any attorney who practices b-fore it for conduct unbecoming

a member of the bar or for failure to comply with these rules

or any rule of the court.

Rule 1.9 of ABA Rules of Professional Conduct

A lawyer who has formerly represented a client in a matter

shall not thereafter :

(a) represent another person in the same or substantially

related matter in which that person’s interests are materially

adverse to the interests of the former client unless the former

client consents after consultation.

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APPENDIX D

Correspondence between law firms DOHERTY, RUMBLE

& BUTLER and COCHRANE & BRESNAHAN concerning

fees and duties in the Corn Derivatives Antitrust Litigation.

DOHERTY, RUMBLE & BUTLER

Attorneys at Law

1500 First National Bank Building

Saint Paul, Minnesota 55101

February 1, 1980

Mr. Richard H. Magnuson

Vice President and General Counsel

Land O’Lakes, Inc.

614 McKinley Place

Minneapolis, Minnesota 55413

Re: CORN DERIVATIVES CLASS ACTION LITIGATION

Dear Mr. Magnuson:

This letter is to confirm our understanding that Land

O’Lakes, Inc. has retained the firms of Doherty, Rumble &

Butler and Cochrane & Bresnahan to institute a class action

antitrust complaint in the so called corn starch derivatives

antitrust litigation. It is agreed that the firms will be paid a

contingent fee in the amount of ten percent of the net amount

of recovery irrespective of class fees. In addition Land O’Lakes

agrees to pay its proportionate share of out-of-pocket expenses.

Enclosed is a copy of the Complaint that we have prepared

and that is in the process of being served.

We appreciate this opportunity to once again be of service

to you.

Very truly yours,

DOHERTY, RUMBLE &

BUTLER

By: EUGENE M. WARLICH

EMW /sy

Enc.

cc. Mr. John A. Cochrane

Cochrane & Bresnahan

DOHERTY, RUMBLE & BUTLER

Attorneys at Law

1500 First National Bank Building

Saint Paul, Minnesota 55413

February 1, 1980

Mr. John A. Cochrane

Cochrane & Bresnahan

Attorneys at Law

500 Cochrane & Bresnahan Building

360 Wabasha Street

St. Paul, Minnesota 55102

Re: CORN STARCH DERIVATIVE

ANTITRUST LITIGATION

Dear John,

Enclosed is a copy of my letter to Dick.

This is to confirm our understanding reached today that the

ten percent contingent fee referred to in the enclosed letter

will be divided two-thirds to Doherty, Rumble & Butler and

one-third to Cochrane & Bresnahan. In addition, each firm

will be entitled to its total class fee awarded by the court.

3d

It will be a great pleasure to work with you once more.

Yours very truly,

DOHERTY, RUMBLE &

BUTLER

By: GENE

EMW/sy

Enc.

COCHRANE & BRESNAHAN

360 Wabasha Street

Suite 500

St. Paul, MN 55413

February 5, 1980

DOHERTY, RUMBLE & BUTLER

1500 First National Bank Building

Saint Paul, Minnesota 55101

ATTENTION: Eugene M. Warlich

Re: CORN DERIVATIVE ANTITRUST

LITIGATION, MDL 414

Dear Gene:

Thank you for your letter of February 1, 1980. In following

with our understanding, your firm will handle all of Land

O’Lakes Interrogatories, document discovery matters, etc. and

our firm will handle court appearances and court related

matters regarding this litigation.

Very truly yours,

JOHN A. COCHRANE

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

No.

COCHRANE & BRESNAHAN

PAN O’GOLD, INC., IMPERIAL PRODUCTS CORP.,

AND JOHN E. KOERNER & CoO., INC.

Petitioners,

v.

PLAINTIFF CLASS REPRESENTATIVES AND

THE PLAINTIFF CLASS

Respondents,

IN RE: CORN DERIVATIVES ANTITRUST LITIGATION

(MDL 414)

CERTIFICATE OF SERVICE

I hereby certify that on February 13, 1985, one copy of the

Petition for Writ of Certiorari has been sent by U.S. Mail,

First Class, and properly addressed to the following:

Clive S. Cummis, Esq.

Sills, Beck, Cummis, Zuckerman,

Radin & Tischman

33 Washington Street

Newark, N.J. 07102

Plaintiffs’ Liaison Counsel

in M.D.L. 414

Kohn, Savett, Marion & Graf

Mrs. Diane Nast, Esq.

1214 IVB Building

Philadelphia, PA 19103

Attorneys for Bodines, Inc.

William E. Willis, Esq.

Sullivan & Cromwell

125 Broad Street

New York, NY 10004

Attorneys for Amstar Corp.

Norman R. Carpenter, Esq.

Faegre & Benson

2300 Multifoods Tower

Minneapolis, MN 55402

Attorneys for ADM

Richard D. Catenacci, Esq.

Connell, Foley & Geiser

Gateway I, Suite 1600

Newark, NJ 07102

Defendants’ Liaison Counsel

in M.D.L. 414

Berger & Montague

David Berger, Esq.

1622 Locust St.

Philadelphia, PA 19103

Attorneys for Golden Quality Ice Cream

Peter Moll, Esq.

Howrey & Simon

1730 Pennsylvania Ave. N.W.

Washington, D.C. 20006

Attorneys for Anheuser-Busch, Inc.

. Edward P. Henneberry, Esq.

Howrey & Simon

1730 Pennsylvania Ave. N.W.

Washington, D.C. 20006

Attorneys for the Hubinger Company

Barbara Mentz, Esq.

Hall, McNichol, Hamilton,

Clark & Murray

220 E. 42 St.

New York, NY 10017

Attorneys for American Maize

Allen S. Joslyn, Esq.

Cahill, Gordon & Reindel

80 Pine Street

New York, NY 10005

Attorney for CPC International

Burton H. Brody

Chief Litigation Counsel

Nabisco Brands, Inc.

625 Madison Avenue

New York, NY 10022

Morton M. Maneker, Esq.

Proskauer, Rose,

Goetz & Mendelsohn

300 Park Ave.

New York, NY 10022

Attorneys for A.E. Staley

Michael E. Wiles, Esq.

Devevoise & Plimpton

875 Third Avenue

New York, NY 10022

Attorneys for National Starch & Chemical

John P. Ryan, Esq.

McBride & Baker

Three Trust National] Plaza

Chicago, IL 60602

Attorney for Grain Processing Corp.

Stanley D. Robinson, Esq.

Kaye, Scholer, Fierman, Hays & Handler

425 Park Avenue

New York, NY 10022

Attorney for Standard Brands

James R. Irwin, Esq.

Shidler, McBroom,

Gates & Baldwin

1000 Norton Building

Seattle, WA 98104

Attorneys for Penick & Ford, Ltd.

Sheldon O. Collen, Esq.

Friedman & Koven

208 South LaSalle St.

Chicago, IL 60604

Attorneys for Federal Bake Shops, Inc.

Perry Goldberg, Esq.

Specks & Goldberg, Ltd.

180 North LaSalle St.

Chicago, IL 60601

Attorneys for Federal Bake Shop

William A. Garrigle, Esq.

Garrigle & Chierici, P.C.

2 West Evesham Ave.

Cherry Hill, NJ 08003

Attorneys for Cumberland Farms

Paul L. Linker, Esq.

Robinson, Wayne, Levin, Riccio & LaSala

Gateway I

Newark, N.Y. 07102

Attorneys for United A.G. Cooperative

Jeremiah F. Hallisey, Esq.

O’Brien & Hallisey

One California St.

22nd Floor

San Francisco, CA 94111

Attorneys for Sanitary Bakery

John L. McGoldrick, Esq.

McCarter & English

550 Broad St.

Newark, N.Y. 07102

Attorneys for Tropical Preserving Co.

Guido Saveri, Esq.

Saveri & Saveri

111 Sutter St., Suite 2140

San Francisco, CA 94104

Attorneys for Bear Stewart

Arnold Levin, Esq.

Levin & Fishbein

“320 Walnut St.

Philadelphia, PA 19106

Attorneys for Kelco Industries

Bruce K. Cohen, Esy.

Meredith & Cohen

1178. 17th St., 22nd Floor

Philadelphia, PA 19103

Attorneys for Eastern Candy

Douglas V. Rigler, Esq.

Foley, Lardner,

Hallabaugh & Jacobs

1775 Pennsylvania Ave. N.W.

Washington, D.C. 20006

Attorneys for G. Heileman

Seymour Kurland, Esq.

Wolf, Block, Schorr &

Solis-Cohen

Packard Bldg., 12th Floor

Philadelphia, PA 19102

Attorneys for Finklestein’s Farms

Robert E. Weir, Esq.

93 W. Julian Street

P.O. Box 5764

San Jose, CA 95150

Attorneys for Keystone Co.

Eugene M. Warlich

Doherty, Rumble & Butler

E-1500 1st Nat'l Bank Bldg.

St. Paul, MN 55101

Attorneys for Land O’Lakes

LOUIS R. KOERNER, JR.