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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 472 U.S. 1008

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2498%3A1. Public record. Not legal advice.