Opposition Brief — Ambrose v. Sperry Rand Corp.

FILED

OCT 9 1985

g5-414° Supreme Cour, US.

JOSEPH F. SPANIOL, JR.

No. A-77 CLERK

> aii

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

HELEN M. AMBROSE,

Petitioner,

vs.

SPERRY RAND CORPORATION, a Delaware Corpora-

tion, The International Brotherhood of Electrical Work-

ers, AFL-CIO, and Local Union No. 2047 of the Inter-

national Brotherhood of Electrical Workers,

Respondents.

BRIEF FROM RESPONDENT SPERRY RAND CORPORA-

TION IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI

POPHAM, HAIK, SCHNOBRICH,

KAUFMAN & DOTY, LTD.

David S. Doty

4344 IDS Center

Minneapolis, Minnesota 55402

(612) 333-4800

Attorney for Respondents

* Sperry Rand Corporation

1985—Northwest Brief Printing Co., 3010 2nd St. No., Minneapolis 55411—588-7506

“>

QUESTION PRESENTED

1. Has petitioner demonstrated abuse of discretion by

District Court and Circuit Court of Appeals in dismissing

and refusing to vacate a settlement in a class action after

the judicially approved settlement had been implemented?

Ruling below: No.

THE PARTIES

Delores Elliott

Helen Ambrose

Class of all other persons

similarly situated

Sperry Rand Corporation

The International Brotherhood

of Electrical Workers, AFL-CIO

Local Union No. 2047 of the

International Brotherhood

of Electrical Workers

Plaintiff

Plaintiff-Petitioner

Plaintiffs-Respondents

Defendant-Respondent

Defendant-Respondent

Defendant-Respondent

TABLE OF CONTENTS

Page

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Constitutional and Statutory Provisions Involved .... 1

add dice rapeceseee 2

TE owe ws ew seeeebcccseces ses 3

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ESS SE ee er 9

TABLE OF AUTHORITIES

Page

Supreme Court Cases:

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

326, rehearing denied, 446 U.S. 947 (1980) ...... 5

Other Cases:

Ambrose v. Sperry Rand Corp., 760 F.2d 273 (8th

Cir. 1985) (unpublished opinion) .............. 3

Chicago Northwestern Railway Company v. Union

Packing Company, 527 F.2d 592 (8th Cir. 1976)

ESE a 6

Elliott v. Sperry Rand Corp., 680 F.2d 1225 (8th Cir.

hg hs nd Wig 50 RMS da nk 68 a 3

Grunin v. International House of Pancakes, 513 F.2¢

114 (8th Cir.), cert. denied, 423 U.S. 864 (1975) 5

In re Four Seasons Securities Laws Litigation, 59

F.R.D. 667 (D. Okl. 1973), reversed on other

grounds, 502 F.2d 834 (10th Cir.), cert. denied,

ili

Ohio v. Arthur Andersen & Co., 419 U.S. 1034

2 ent ae te Ty ST reper ere

Pioneer Insurance Company v. Gelt, 558 F.2d 1303

GC, Fee hive beac te CORTESE INT

Research Corp. v. Asgrow Seed Co., 425 F.2d 1059

CR SU 5 $45 vont ch cue Vise eeneae des

Reynolds v. National Football League, 584 F.2d 280

fe ee Serres Aree ee hee

Sperry Rand Corporation v. Larson, 554 F.2d 868

GE, WOE og oA eas 6 Res Odo ACs Craw eso

Statutes:

MEU, Bee AE. OG. ow cece ccc ccscaes :.

ess ccesdawedéesrheneeens

Rules of Procedure:

Federal Rules of Civil Procedure, Rule 23(e) ...... a

iv

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. A-77

HELEN M. AMBROSE,

Petitioner,

vs.

SPERRY RAND CORPORATION, a Delaware Corpora-

tion, The International Brotherhood of Electrical Work-

ers, AFL-CIO, and Local Union No. 2047 of the Inter-

national Brotherhood of Electrical Workers,

Respondents.

BRIEF FROM RESPONDENT SPERRY RAND CORPORA-

TION IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Notwithstanding plaintiff's references to various consti-

tutional provisions, statutes and rules, there are no specific

constitutional provisions or statutes at issue in this appeal.

The only issue presently subject to appeal is the propriety

of dismissing a lawsuit after a settlement has been imple-

mented. The underlying lawsuit originally involved allega-

tions concerning Title VII of the Civil Rights Act of 1964,

42 U.S.C. §2000(e) et. seq., the Equal Pay Act, 29 U.S.C.

2

§206, and other related statutes. The case proceeded as a

class action pursuant to Federal Rules of Civil Procedure,

Rule 23.

STATEMENT OF THE CASE

The original action was initiated by Delores Elliott and

Helen Ambrose as a class action for alleged violations of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000

(e) et. seq., the Equal Pay Act, 29 U.S.C. §206, and other

related statutes, claiming discrimination against female

employees in the predominantly female bargaining unit of

Sperry Univac in the Minneapolis-St. Paul area. The ac-

tion was certified as a class action on May 27, 1976. See

Sperry Rand Corporation v. Larson, 554 F.2d 868 (8th

Cir. 1977). Trial commenced on September 8, 1980.

Following several weeks of trial and several months of

negotiation, the parties reached a settlement in May, 1981.

The Honorable Earl R. Larson, District Court Judge, is-

sued his order on August 11, 1981, approving the settle-

ment. Delores Elliott and Helen Ambrose appealed the

order approving the settlement agreement, but the United

States Circuit Court for the Eighth Circuit affirmed the

settlement on June 23, 1982. S« Elliott v. Sperry Rand

Corp., 680 F.2d 1225 (8th Cir. 1982). The per curiam

Opinion of the Court affirmed the District Court order ex-

cept insofar as it had denied attorneys’ fees to the named

plaintiffs. No party petitioned for certiorari review of the

order of the Eighth Circuit Court of Appeals.

Following the judicial confirmation of the settlement,

defendants paid out to 3,105 class members a total of

$1,762,618.47. Important equitable relief has been imple-

mented, including amendments to collective bargaining

3

agreements. In 1984, Sperry moved for dismissal of the

lawsuit, on the basis of affidavits attesting to the compli-

ance of defendants with all terms of the settlement agree-

ment. After the District Court had conducted hearings on

Sperry’s motion to dismiss the lawsuit, Helen Ambrose filed

a motion to invalidate the settlement upon various grounds.

On May 31, 1984, the Honorable Earl R. Larson issued

two orders. One order dismissed the lawsuit on the grounds

that the settlement terms had been implemented. A second

order denied Ambrose’s motion to invalidate the settlement.

On September 10, 1984, the District Court entered an order

denying Ambrose’s motion for a new trial and invalidation

of the judgment. Ambrose took an appeal to the Eighth

Circuit. On March 11, 1985, the Eighth Circuit issued a

per curiam unpublished order affirming the dismissal of

the litigation. See Ambrose v. Sperry Rand Corp., 760 F.2d

273 (8th Cir 1985). Ambrose moved for reconsideration

by the Eighth Circuit. On May 13, 1985, the Eighth Cir-

cuit issued an order denying Ambrose’s motion for recon-

sideration.

Ambrose has submitted a petition for a writ of certiorari

to the United States Supreme Court, ostensibly raising on

this appeal issues relating to the original settlement agree-

ment. Generally speaking, however, the issues raised by

Ambrose before this Court were not the issues presented in

the limited proceedings in the courts below. In short, Am-

brose attempts to raise issues before this Court which were

not properly presented before the lower courts.

SUMMARY OF ARGUMENT

The District Court and the Circuit Court properly exer-

cised their discretion in determining compliance with a

4

stipulated and judicially approved settlement. Ambrose

took no appeal from the 1982 opinion of the Eighth Circuit

approving the terms of the settlement. The parties relied

upon the settlement and have implemented the settlement.

There has been no abuse of discretion, and the courts below

acted properly in determining that this litigation should be

ARGUMENT

The case does not involve important questions of law or

precedent setting issues. Rather, the petition for a writ of

certiorari reflects an isolated challenge of one individual to

a settlement which has proven agreeable to more than 3,000

other class members. Petitioner does not properly charac-

terize the issues below.

1.

The District Court Properly Dismissed This Action.

Sperry properly moved the Court for an order dismissing

the action with prejudice. Sperry supported this motion

with evidence of compliance with the stipulated settlement,

including affidavits of defense counsel and Sperry personnel

showing that the terms of the agreement had been met. The

District Court conducted hearings concerning the proposed

dismissal. The District Court agreed that Sperry had met all

of the settlement terms. |

In her appeal to the Eighth Circuit, Ambrose raised two

limited objections to the dismissal. Those issues were care-

fully considered by the District Court and reviewed again

by the Eighth Circuit. Both of the issues were essentially

housekeeping matters. The lower courts properly exercised

5

their discretion in determining that the parties had com-

plied with the terms of the judicially approved settlement.

The Lower Courts Properly Exercised Discretion In

Refusing To Invalidate The Settlement.

After the District Court had conducted hearings on

Sperry’s motion to dismiss the appeal, Ambrose filed a mo-

tion to invalidate the settlement, claiming reliance upon

various procedural rules. The trial court found no reason

to disturb the prior approval of the settlement agreement.

Her argument essentially amounted to an effort to obtain

reconsideration of the 1981 and 1982 settlement approval.

On an appeal from an original approval of settlement,

the standard of review is limited to a question of abuse of

discretion. The Eigiiiii Circuit cases on this subject are in

accord with settled and standard doctrine. See e.g., Elliott

y. Sperry Rand Corp., 680 F.2d 1225 (8th Cir. 1982);

Reynolds v. National Football League, 584 F.2d 280 (8th

Cir. 1978); Grunin v. International House of Pancakes,

513 F.2d 114 (8th Cir.). cert. denied, 423 U.S. 864 (1975).

This petition does not, however, involve the orders for set-

tlement approval, despite petitioner’s implications to the

contrary.

Orders approving settlement in class action cases are

final and appealable. See Rules of Civil Procedure, Rule 23

(e), Research Corp. v. Asgrow Seed Co., 425 F.2d 1059,

1060-1061 (7th Cir. 1970). Cf. Deposit Guaranty National

Bank v. Roper, 445 U.S. 326, rehearing denied, 446 U.S.

947 (1980). Petitioner objected to the settlement and had

her appeal considered by the Eighth Circuit. Petitioner did

not, however, seek certiorari from the 1982 order of the

6

Eighth Circuit. Thus, she exhausted her appeal from the

order affirming settlement in 1982.

Now, in a collateral attack on the settlement orders,

Ambrose would have the courts disturb the orders approv-

ing the original settiement. Her motion should be treated as

a motion under Rule 60(b). The motion came too late.

Ambrose’s motion to invalidate the settlement came nearly

a year and a half after the Eighth Circuit had issued its

approval of the settlement and after all parties had irretriev-

ably relied upon the final settlement terms. Motions to set

aside a judgment must be timely and are, in any event, ad-

dressed to the discretion of the court. See Pioneer Insur-

ance Company v. Gelt, 558 F.2d 1303, 1311-1312 (8th

Cir. 1977) (60(b) motion must be filed within one year;

“appellate court will not disturb the exercise of [trial

court’s] discretion in the absence of abuse”); Chicago

Northwestern Railway Company v. Union Packing Com-

pany, 527 F.2d 592 (8th Cir. 1976) (per curiam) (60(b)

motion denied because it was made more than one year

after judgment).

Special considerations apply when a party seeks to re-

open a class action judgment.

A too liberal application of Rule 60(b) in class actions

would undermine the finality of judgment entered

therein and would discourage settlement of such ac-

tions.

In re Four Seasons Securities Laws Litigation, 59 F.R.D.

667, 677-678 (D. Okl. 1973), reversed on other grounds,

502 F.2d 834 (10th Cir. 1974), cert. denied, Ohio v. Ar-

thur Andersen & Co.. 95 S.Ct. 516. Here, petitioner urges

this court to reopen a judgment that has produced signifi-

7

cant equitable relief, including amendments to collective

bargaining agreements, and that has produced significant

payments to 3,105 class members. If the Court were to

rule that such judgments can be reopened without extra-

ordinary showings, beyond those offered by petitioner, the

ruling would greatly discourage thoughts of settlements of

class actions.

Notwithstanding that petitioner proceeds pro se, this

Court should not be overly sympathetic to petitioner’s fail-

ure to consider the applicable procedural rules. Her study

and experience have equipped her well to manigmlate the

appropriate procedural aspects of the case. Also, at various

stages of this litigation, petitioner has been represented

by three different law firms. At every applicable point in the

proceedings below, the District Court and the Eighth Cir-

cuit have extended deadlines and permitted supplemental

filings by Ambrose. The Courts have shown extraordinary

patience for Ambrose and have given her a full and fair

hearing at every juncture. Nothing more can be served,

however, from a further hearing of the issues she has raised.

The Original Settlement Was Valid And Should Not

Be Upset.

To the extent that this Court has interest in petitioner’s

allegation of conflict of interest, Sperry wishes to point out

that Ambrose has never identified any allegations of con-

flict of interest involving her trial counsel, Richard Bland,

and his firm of Meagher, Geer, Markham, Anderson,

Adamson, Flaskamp & Brennan. Neither has appellant

complained that her appeal attorneys, Roback and Wolf,

suffered from any conflict of interest. Yet, neither the

Meagher, Geer firm nor Roback and Wolf presented any

specific allegations of an improper conflict of interest on

the part of any of the other participants.

Further, the conflict of interest charges raised by Am-

brose have been considered by the Ethics Committee of the

Hennepin County Bar Association and the Minnesota Law-

yers Professional Responsibility Board. Both groups con-

cluded that there was no conflict of interest. Judge Earl R.

Larson has similarly concluded that there was no conflict

of interest and no ethical violation. -Finally, the Eighth Cir-

cuit specifically considered and rejected Ambrose’s claims

of conflict of interest.

With regard to the technical merits of the class action

itself, suffice it to say that the legal and factual issues were

hotly disputed. The settlement reached below was reason-

able from all perspectives in view of the uncertainties in-

volved.

It can be conceded that Elliott and Ambrose were un-

happy with the settlement and with the counsel for the

class in 1981 when they took their prior appeal. Obviously,

Ambrose is still unhappy with the settlement and class

counsel. Her isolated views are not reflective, however, of

the views of the 3,105 class members who have accepted

payments totalling $1,762,618.47. Ambrose has fallen far

short of demonstrating reasons to justify calling upon all

of the parties to unwork the settlement at this late date.

9

CONCLUSION

This case does not present well formed issues of impor-

tant public policy. Rather, Ambrose’s arguments present a

confused hodgepodge of criticisms which lack support in

the record. The lower courts have exercised their discretion

in an appropriate manner and have given extraordinary

attention to appellant’s pro se claims. The petition for a

writ of certiorari should be denied.

Dated: October 7, 1985.

Respectfully submitted,

POPHAM, HAIK, SCHNOBRICH,

KAUFMAN & DOTY, Ltd.

By David S. Doty

Attorney Reg. No. 23887

4344 IDS Center

Minneapolis, Minnesota 55402

(612) 333-4800

Attorneys for Respondent

Sperry Rand Corporation