# Opposition Brief — Cochrane & Bresnahan v. Class Representatives > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2498%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1985 - **Citation:** 472 U.S. 1008 ## Text No. 84-1413 IN THE SUPREME COURT OF THE UNITED October Term, 1984 COCHRANE & BRESNAHAN, PAN O’GOLD, INC., IMPERIAL PRODUCTS CORP., AND JOHN E. KOERNER & CoO., INC., Petitioners v. PLAINTIFF CLASS REPRESENTATIVES, Respondents In Re: Corn Derivatives Antitrust Litigation MDL 414 BRIEF IN OPPOSITION OF RESPONDENTS David Berger Clive S. Cummis BERGER & SILLS, BECK, CUMMIS. MONTAGUE, P.C. ZUCKERMAN, RADIS 1622 Locust Street & TISCHMAN Philadelphia, PA 19103 33 Washington Street (215) 875-3030 Newark, NJ 07102-3179 Attorneys for Respondent, (201) 643-3232 Golden Quality Ice Attorneys for Respondent, Cream Company Food Foundation, Inc. (‘See Inside Front Cover For Names Of Additional Respondents ) PACKARD PRESS | LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA, PA. 19123 (215) 236-2000 Michael H. King Ross & HARDIES 150 N. Michigan Avenue. Suite 2500 Chicago. IL 60601 (312) 558-1000 Attorneys for Respondent. Consolidated Packaging Corp. Joel C. Meredith MEREDITH & COHEN 117 S. 17th Street. 22nd Floor Philadelphia, PA 19103 (215) 564-5182 Attorneys for Respondent, Eastern Candy Company, Inc Guido Saveri SAVERI & SAVERI Harold k. Kohn Dianne M. Nast KOHN. SAVETT. MARION & GRAF. PLC. One Reading Center. 24th Floor 1101 Market Street Philadelphia, PA 19107 (215) 238-1700 Attorneys for Respondents, Bodines, Inc. and Cumberland Farms Dairy, Inc. Douglas V. Rigler KAPLAN RUSSIN VECCHI & JACOBS 1218 Sixteenth Street, NW Washington, D.C. 20036 (202) 638-0060 Attorneys for Respondent, G. Heileman Brewing Company, Inc. Robert A. Skirnick WOLF, POPPER, ROSS. WOLFE 111 Sutter Street. Suite 2140 & JonES San Francisco, CA 94104 (415) 391-0300 Attorneys for Respondents, Bear Stewart & Corp., Eastern Candy Company, Inc., Health Care Industries, Inc.. G. Heileman Brewing Company, Inc., Kalva Corp., Korbro Oil Corp., Virnelson Bakery, Inc. Eugene M. Warlich DOHERTY, RUMBLE & BUTLER 1500 First National Bank Building St. Paul, MN 55101 (612) 291-9270 Attorneys for Respondent, Land O'Lakes. Inc. 845 Third Avenue New York, NY 10022 (212) 759-4600 Attorneys for Respondents, Eastern Candy Company, Inc., Korbro Oi! Corp., Plantation Confection Company, Inc. QUESTION PRESENTED FOR REVIEW The Petition has been filed on behalf of three plain- tiffs in the District Court, and on behalf of a law firm which represented two of those plaintiffs and a class member in the District Court. The underlying litigation is an antitrust class action which was settled in 1983. Those settlements were approved, after briefing and hearing, by the District Court. In the District Court, the Petitioner law firm repre- sented one plaintiff who supported and accepted the pro- posed settlement, while simultaneously representing an- other plaintiff who actively opposed the same settlement. The undersigned Respondents, asserting that this dual position presented a manifest conflict of interest, moved in the Third Circuit to disqualify Petitioners. The Court of Appeals for the Third Circuit granted the Motion to Disqualify, ruling that it would be unfair to permit one of Petitioner law firm’s clients to use against another client, information which had been gained during the joint rep- resentation. The question presented for review is as follows: Did the Court of Appeals in the Corn Derivatives An- titrust Litigation act within its broad appellate authority in concluding that Petitioner law firm should be disqual- ified, where two clients retained Petitioner law firm to file suit, and where, later, that law firm chose to repre- sent one of those clients against the other in the course of the same litigation. STATEMENT REQUIRED BY RULE 28.1 Respondents are class representatives of the plaintiff class, a class of purchasers of corn derivatives products, and include the following class representatives: Bear Stewart & Corp. Bodines, Inc. Cumberland Farms Dairy, Inc., whose parent is Delaware Food Stores, Inc. Consolidated Packaging Corp. Eastern Candy Company, Inc. Food Foundation, Inc. Golden Quality Ice Cream Company G. Heileman Brewing Company, Inc. Health Care Industries, Inc. Kalva Corp. Korbro Oil Corp. Land O’Lakes, Inc., whose partially owned subsidiaries are Norris Creameries, Inc.; Imperial Packaging, Inc.; Imperial, Inc.; and Lakeside Dairy Company Plantation Confection Company, Inc. Virnelson Bakery, Inc. TABLE OF CONTENTS Page QUESTION PRESENTED FOR REVIEW ....... 5 STATEMENT REQUIRED BY RULE 28.1....... ii TARE Gr Fees CN oc eo ch eis cass iees iv STATEMENT OF THE CAGE... ook ese ees 2 REASONS FOR DENYING THE WRIT......... 3 I. The Petition Raises No Issues Of Public Impor- tance or of General Application.............. 4 Il. No Conflict Among The Circuits Is Presented ee ee I oo dg sn wore Sk Oa ee 5 Cs Sich see pee cae ene ewes tea eee 7 iii TABLE OF AUTHORITIES CASES: Page Analytical, Inc. v. NPD Research, Inc., 708 F.2d ae, ae (re Ge. Ce a S200 1.B.M. v. Levin, 579 F.2d 271 (3d Cir. 1978)...... In re Eastern Sugar Antitrust Litigation, 697 F.2d SE, TH Ce ee, SOD 085 its hee ser aemes Kramer v. Scientific Control Corp., 534 F.2d 1085 (3d Cir.), cert. denied, 429 U.S. 830 (1976)... Matter of Abrams, 521 F.2d 1094, 1099, (3d Cir. ), cert. denied, 423 U.S. 1038 (1975)........... Richardson-Merrell, Inc. v. Ann Elizabeth Koller, et 8, 7. RES RA e Ray aye ean OTHER AUTHORITIES: ABA MODEL RULES OF PROFESSIONAL CON- a "See ere ree ere iv 5 No. 84-1413 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1984 COCHRANE & BRESNAHAN, PAN O’GOLD, INC., IMPERIAL PRODUCTS CORP., AND JOHN FE. KOERNER & CoO., INC., Petitioners VU. PLAINTIFF CLASS REPRESENTATIVES, Respondents In Re: Corn Derivatives Antitrust Litigation MDL 414 BRIEF IN OPPOSITION OF RESPONDENTS Pursuant to Rule 27.2(b) of the rules of this Court, RESPONDENTS, plaintiff class representatives in the Court below, file this brief in opposition to the Petition for a Writ of Certiorari seeking to overturn a decision of the Court of Appeals for the Third Circuit disqualifying the Petitioner law firm, and respectfully request this Court to deny the Petition for Writ of Certiorari. 2 STATEMENT OF THE CASE The Petition has been filed on behalf of three plain- tiffs in the District Court, and on behalf of a law firm which represented two of those plaintiffs and a class member in the District Court. In the underlying proceeding, numerous cases, most of which were filed as class actions, were consolidated by the Judicial Panel on Multidistrict Litigation and trans- ferred to the United States District Court in Newark, New Jersey. Each Complaint alleged violations by de- fendants of the antitrust laws. The actions were resolved by settlements, which settlements were approved by the District Court. In April, 1983, Petitioner, Cochrane & Bresnahan, stated its opposition on behalf of its clients tu the pro- posed settlements. Ac cording to Petitioner, Cochrane & Bresnahan, the firm learned on June 30, 1983, that one of the plaintiffs (Land O’ Lakes), and a class member (General Mills), which the Petitioner firm represented, approved the settlements and wanted to participate in those settlements. But not until October, 1983, almost four months later, did Petitioner, Cochrane & Bresnahan, withdraw its representation of the plaintiff supporting the settlements. During this time, however, that firm actively opposed those settlements; settlements in which two of its clients, Land O’ Lakes and General Mills, had already expressly stated their wish to partici- pate. The client supporting the setthement, Land O’ Lakes, Inc., joined by other plaintiffs in the Court below, then moved to disqualify Cochrane & Bresnahan who was its counsel, because of the manifest conflict inher- ent in such joint representation by the Petitioner law firm. Land O’ Lakes, Inc. is also a Respondent ir this Court, and is opposing the Petition for Certiorari. 3 On November 15, 1984, the Court of Appeals for the Third Circuit, granted the Motion to Disqualify the Pe- titioner law firm, holding that: “... it would be unfair, appearances apart, to permit {Cochrane & Bresnahan] to use against its former client the information about the strengths and weak- nesses of the case gained from the joint representa- tion. Under these circumstances, [Cochrane & Bresnahan] must be disqualified.” Pet. App. A at 14a. The plaintiff class is not now “unrepresented” as a result of the ruling of the Court of Appeals for the Third Circuit. At least twenty other class action complaints were consolidated by the Multidistrict Panel. Counsel in those actions continue to represent the class. REASONS FOR DENYING THE WRIT Nothing in the Petition supports the grant of a Writ of Certiorari, and none of the points raised by Petitioners is worthy of review. First, the Petition raises no issue of public impor- tance or of general application. In essence, as deter- mined by the Court of Appeals for the Third Circuit, this is a simple case: “... where two clients retained the same law firm to file suit, and where, later, that law firm chose to rep- resent one of those clients against the other in the course of the sarne litigation. In view of our evalua- tion of the situation, we emphasize that it is unnec- essary to address the considerable ethical problems that might arise between an attorney named by the court to represent the class and members of the class, or the general problems that might arise when some members of a class favor a settlement and oth- ers do not.” Pet. App. A at 11a. 4 Given the factual context of this matter, the Opinion of the Court of Appeals was confined to narrow issues on narrow facts. Second, no conflict among the Circuits is presented by the Decision of the Court of Appeals, nor is any issue of broad national iniportance raised by the Petition. I. The Petition Raises No Issues of Public Importance or of General Application. Because Petitioners have raised no issue of public importance or general application, the Petition should be denied In essence, the Petition expresses the dissatisfaction of a law firm which, to paraphrase the description in the Opinion of the Court of Appeals, was retained by two clients to file suit, and then later chose to represent one client whose interests were in direct conflict with the other client, in the same litigation. The Petitioners raise a clear question of dual repre- sentation which is not difficult to resolve. Simply stated, a law firm cannot simultaneously represent one client who accepts a proposed settlement, while representing another client who opposes the same settlement, and then correct the ill by belatedly withdrawing from one of the two representations, four months after objecting to the proposed settlements. While Petitioners repeatedly state that the law firm's client was “uncomplaining”, Petitioners fail to point out the critical fact that its other client moved to disqualify Petitioner from the litigation because of the Petitioner law firm's dual representation. On that Motion, which was joined by each of the plaintiff Respondents herein, the Court of Appeals for the Third Circuit exercised its inherent supervisory powers and determined that the Pe- titioner law firm, Cochrane & Bresnahan, should be dis- qualified. See Matter of Abrams, 521 F.2d 1094, 1099 (3d Cir.), cert denied, 423 U.S. 1038 (1975). 5 Not only is there an apparent actual conflict, but there is a serious appearance of impropriety in represent- ing clients with adverse interests. In re Eastern Sugar Antitrust Litigation, 697 F.2d 524, 530 (3d Cir. 1982). See also, Kramer v. Scientific Control Corp., 534 F.2d 1085 (3d Cir.), cert denied, 429 U.S. 830 (1976); ABA MODEL RULES OF PROFESSIONAL CONDUCT, Rule 1.9. Such a manifest conflict of interest cannot be sanc- tioned by any Court for the sound reasons set forth in the Opinion of the Third Circuit. Although Petitioners style the question presented as involving the right of a class representative to object to a settlement, Respondents respectfully submit that there is no such issue before this Court. As described by the Court of Appeals and as set forth above, this case involves a conflict caused by Petitioner law firm's representation at the outset of this litigation of two clients followed by a change of heart as to that representation after the clients adopted conflicting positions with respect to the settle- ments. There was no challenge raised in any Court be- low as to the right of a class member to object to a class settlement, nor was that the ground on which the Peti- tioner law firm’s client sought to disqualify Petitioner. The issue before the Court of Appeals for the Third Cir- cuit was simply the duty of individual loyalty counsel owes to a client, as well as the duty owed to the public to avoid even the appearance of impropriety to protect the integrity of our legal system. In re Eastern Sugar Anti- trust Litigation, supra; See also, 1.B.M. v. Levin, 579 F.2d 271 (3d Cir. 1978). Il. No Conflict Among The Circuits Is Presented By The Petition. There is no conflict among the Circuits raised by Pe- titioners, and accordingly, there is no conflict presented for resolution by this Court. No matter how the issue is 6 restyled by Petitioners, the unadorned fact is that a law firm is not permitted to switch sides if the representa- tions are substantially related, as they are here, and no Circuit has held to the contrary. See, e.g., Analytical, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1268 (7th Cir. 1983). The issues raised by the instant Petition are not re- lated to those in Richardson-Merrell, Inc. v. Anne Elizabeth Koller, et al., No. 84-127, which was argued this term before this Court. The Richardson Petition in- volved substantial questions of wide application, includ- ing appealability of disqualification orders under the col- lateral order exception to the final judgment rule, and a constitutional question as to whether the conduct of the attorneys was protected by the First Amendment. No such far-reaching procedural or constitutional issue is presented in the instant Petition. 7 CONCLUSION Petitioners have failed to show any abuse of discre- tion by the Court of Appeals, or any conflict between the Circuits. Accordingly, for the reasons set forth above, the Petition for Writ of Certiorari should be denied. DATED: May 15, 1985 David Berger BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 (215) 875-3030 Attorneys for Respondent, Golden Quality Ice Cream Company Michael H. King Ross & HARDIES 150 N. Michigan Avenue, Suite 2500 Chicago, IL 60601 (312) 558-1000 Attorneys for Respondent, Consolidated Packaging Corp. Respectfully submitted, Clive S. Cummis SILLS, BECK, CUMMIS, ZUCKERMAN, RADIS & TISCHMAN 33 Washington Street Newark, NJ 07102-3179 (201) 643-3232 Attorneys for Respondent, Food Foundation, Inc. Harold E. Kohn Dianne M. Nast KOHN, SAVETT, MARION & GRAF, P.C. One Reading Center, 24th Floor 1101 Market Street Philadelphia, PA 19107 (215) 238-1700 Attorneys for Respondents, Bodines, Inc. and Cumberland Farms Dairy, Inc. Joel C. Meredith MEREDITH & COHEN 117 S. 17th Street, 22nd Floor Philadelphia, PA 19103 (215) 564-5182 Attorneys for Respondent, Eastern Candy Company, Inc. Guido Saveri SAVERI & SAVERI 8 Douglas V. Rigler KAPLAN RUSSIN VECCHI & JACOBS 1218 Sixteenth Street, NW Washington, D.C. 20036 (202) 638-0060 Attorneys for Respondent, G. Heileman Brewing Company, Inc. Robert A. Skirnick WOLF, POPPER, ROSS, WOLF 111 Sutter Street, Suite 2100 & JoNnES San Francisco, CA 94104 (415) 391-0300 Attorneys for Respondents, Bear Stewart & Corp., Eastern Candy Company, Inc., Health Care Industries, Inc., G. Heileman Brewing Company, Inc., Kalva Corp., Korbro Oil Corp., Virnelson Bakery, Inc. Eugene M. Warlich DOHERTY, RUMBLE & BUTLER 1500 First National Bank Building St. Paul, MN 55101 (612) 291-9270 Attorneys for Respondent, Land O'Lakes, Inc. 845 Third Avenue New York, NY 10022 (212) 759-4600 Attorneys for Respondents, Eastern Candy Company, Inc., Korbro Oil Corp., Plantation Confection Company, Inc. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2498%3A2. Public record. Not legal advice.