Opposition Brief — Ambrose v. Sperry Rand Corp.
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| Supreme Court, U.S.
FILED
(4) OCT 11 1906
No. 85-414
JOSEPH F. SPANIOL, JR.
CLERK
IN THE we :
Supreme Court of the Gnited States
OCTOBER TERM, 1985
DELORES ELLIOTT,
Respondent,
HELEN M. AMBROSE,
Petitioner,
AND ALL OTHER PERSONS SIMILARLY SITUATED,
Respondents,
vs.
SPERRY RAND CORPORATION, a Delaware Corpora-
tion; THE INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO and LOCAL
UNION NO. 2047 OF THE INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF OF RESPONDENT CLASS OF ALL OTHER PERSONS
SIMILARLY SITUATED IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI
RICHARD A. WILLIAMS, JR.., BRADLEY M. JONES, ESQ.
ESQ. J. RICHARD BLAND, ESQ.
Hvass, Weismann & King, Meagher, Geer, Markham,
Chartered Anderson, Adamson,
Suite 2100 Flaskamp & Brennan
100 S. Sth Street 2250 IDS Center
Minneapolis, Minnesota 55402 Minneapolis, Minnesota 55402
(612) 333-0201 (612) 338-0661
Attorneys for Respondent Attorneys for Respondent
Class of All Other Persons Class of All Other Persons
Similarly Situated Similarly Situated
1985—-Northwest Brief Printing Co., 3010 2nd St. No., Minneapolis 55411—588-7506
‘BEST AVAILABLE COPY
QUESTIONS PRESENTED FOR REVIEW
(FROM PETITION )
1. Whether Rule 23 (d) (2) and (e) mailed notice(s)
to the plaintiff class, under all of the circumstances pres-
ent, were constitutionally sufficient absent notice of fact
and apprisal [sic] that co-counsel held appearance of or
potential for conflict of interests?
Ruling below: Yes.
2. Whether plaintiff class counsel and co-counsel were
adequate representative parties [sic] under Rule 23 (a)
(4) and constitutionally sufficient representatives for plain-
tiff class?
Ruling below: Yes.
3. Whether the application of the rules, procedures
adopted, and judgments rendered were within the pro-
scriptions of the Rules Enabling Act §2072 (1966) and
constitutionally sufficient?
Ruling below: Yes.
4. Whether final judgment order is entitled, under
Rule 23 or constitutionally, to full faith and credit?
Ruling below: Yes.
LIST OF ALL PARTIES TO THE PROCEEDINGS BELOW
The parties to the proceedings below are those set forth
in the caption of this Brief. Petitioner’s caption is wrong.
Petitioner’s caption lists only herself and Sperry Rand Cor-
poration as parties to this petition but, by footnote, states:
“Petitioner does not intend to abandon claims as to other
parties who may later claim or be deemed to be parties of
interest.” The caption on this Brief, submitted on be-
half of the Class of All Other Persons Similarly Situated,
contains the complete list of all parties affected by the Or-
ders and Judgments of the United States District Court
for the District of Minnesota from which petitioner ap-
pealed to the United States Court of Appeals for the
Eighth Circuit. Although Respondents Delores Elliott;
The International Brotherhood of Electrical Workers,
AFL-CIO and Local Union No. 2047 of the International
Brotherhood of Electrical Workers did not participate in
the appeal, they were subject to the appellate Court’s jur-
isdiction and judgment affirming the District Court.
Those three respondents and the Class of All Other Per-
sons Similarly Situated are likewise affected by these pro-
ceedings; Petitioner’s caption must be changed to reflect
the interests of all parties, as set forth in the caption of
this document.
det stonan tee tO i
TABLE OF CONTENTS
Page
Questions Presented for Review ................6- i
List of All Parties to the Proceedings Below ........ ii
COW ieee Pea cew bd eee ewes iii
ois ay wiki oe 04 6600 Kaeo Ow ee iV
ey bes ese V6 sae oe kOe wh iv
Ea eae a wg oo bdo Wk RE EER CR V
SRE SG a ga a a Ee vi
Bree mm Oopostion to Petition ..............0..:
Opinions and Judgments Below .................. 2
Ne ees hy sk 6k odes cake 2
EE Ns sig cs o.04.o 4 46 84 ane ae awe 3
I 56 gc ns nce wa eee ckseae ced 6
Reasons Why the Writ Should Not be Issued ....... 6
ee a as Va a5 's 4 4 Khao bo 14
APPENDIX
A—Sperry Rand Corporation v. Larson, 554 F.2d 868
(8th Cir. 1977) (Decision on Class Certification). . . A-1
B—Elliott v. Sperry Rand Corporation, 79 F.R.D.
580 (D. Minn. 1978) (Memorandum and Order of
ee saw B-1
C—Elliott v. Sperry Rand Corporation, No. 4-74 Civ.
627 (D. Minn. August 11, 1981) (Memorandum Or-
der Approving Stipulation of Settlement). ........ C-1
D—Elliott v. Sperry Rand Corporation, 680 F.2d
iano (our We, eee) (Per CUTIAM). .........0.5.. D-1
ill
E—Elliott v. Sperry Rand Corporation, No. 4-74 Civ.
627 (D. Minn. June 11, 1982) (Order Awarding
named plaintiffs attorneys’ fees in conjunction with
Pre Se Pee eee eee E-1
F—Elliott v. Sperry Rand Corporation, No. 4-74 Civ.
627 (D. Minn. Sept. 28, 1982) (Stipulation and Or-
der directing payment of class members). ........ F-]
G—Eliott v. Sperry Rand Corporation, No. 4-74 Civ.
627 (D. Minn. May 31, 1984) (Orders and Memor-
andum Dismissing Case and Denying Moiion for
Se PS oo aes) ve ee eh au sea eees G-1
H—Elliott v. Sperry Rand Corporation, No. 4-74 Civ.
627 (D. Minn. Sept. 10, 1984) (Order Denying
Motion for Reconsideration of Order of May 31,
Ee er eee ae. Sarr ee rae sare H-1
I—Elliott v. Sperrv Rand Corporation, No. 84-5183
(8th Cir. Mar. 11, 1985) (per curiam). ........... }-1
J—Elliott v. Sperry Rand Corporation, No. 84-5183
MN (8th Cir. May 13, 1985) (Order Denying Re-
EES re eee ee Te TTT eee CE TCS J-1
K—Stipulation of Settlement (May 20, 1981). ...... K-1
TABLE OF AUTHORITIES
Cases:
Chicago and Northwestern Railway v. Union Packing
Company, 527 F.2d 592 (8th Cir. 1976). ........ 12
Elliott v. Sperry Rand Corporation, No. 84-5183 MN
(8th Cir. May 13, 1985) (Order Denying Rehear-
ing) (Reprinted in Appendix J). ................ J-1
Elliott v. Sperry Rand Corporation, No. 84-5183 (8th
Cir. Mar. 11, 1985) (per curiam) (Reprinted in Ap-
TN BF 00 60 NE EES, COREE ERE I-1
Elliott v. Sperry Rand Corporation, 680 F.2d 1225
(8th Cir. 1982) (per curiam) (Reprinted in Appendix
iV
et i Mins NY ksh reeaasichy « dl eel
Elliott v. Sperry Rand Corporation, No. 4-74 Civ. 627
(D. Minn. Sept. 10, 1984) (Order Denying Motion
for Reconsideration of Order of May 31, 1984) (Re-
I Fs PRE Wy 5.6 hk he cdc awaresevens H-1
Elliott v. Sperry Rand Corporation, No. 4-74 Civ. 627
(D. Minn. May 31, 1984) (Orders and Memoran-
dum Dismissing Case and Denying Motion for New
Trial) (Reprinted in Appendix G). ............. G-1
Elliott v. Sperry Rand Corporation, No. 4-74 Civ. 627
(D. Minn. Sept. 28, 1982) (Stipulation and Order
directing payment of class members) (Reprinted in
FE Wk oi bio been Ae ee F-1
Elliott v. Sperry Rand Corporation, No. 4-74 Civ. 627
(D. Minn. June 11, 1982) (Order Awarding Named
plaintiffs attorneys’ fees in conjunction with settle-
ment approval) (Reprinted in Appendix E). ..... E-1
Elliott v. Sperry Rand Corporation, No. 4-74 Civ. 627
(D. Minn. August 11, 1981) (Memorandum Order
Approving Stipulation of Settlement) (Reprinted in
PRE sb 66 oe RAE Te ee oes C-1
Elliott v. Sperry Rand Corporation. 79 F.R.D. 580 (D.
Minn. 1978) (Memorandum and Order on Class Cer-
tification) (Reprinted in Appendix B). .......... 3
Elliott v. Sperry Rand Corporation, No. 4-74 Civ. 627
(D. Minn. May 27, 1976) (Memorandum Order Cer-
PS os ins op ea RKO ek oe ie cae ee A-1
Pioneer Insurance Company v. Gelt, 558 F.2d 1303
I er ee 12
Sperry Rand Corporation v. Larson, 554 F.2d 868 (8th
Cir. 1977) (Decision on Class Certification) (Re-
eo 8 ern rer er 2
Statutes:
Title VII of the Civil Rights Act of 1964, as Amended,
ek Meets Ne OO ik eck eee knd nae ee 3
SONNE NY FADE, FP Ws HIS oi cee nvewscsvide 3
Vv
Labor Management Relations Act, 29 U.S.C. §157 et
__ GRELECRURTRETIREERE TOLER CTCL OUT EL 3
Rules Enabling Act, 28 U.S.C. §2072. ............ i
Rules:
Rule 17 of the Supreme Court of the United States... 13
Rule 23 of the Federal Rules of Civil Procedure for
the United States District Courts. .......... Xe See
Rule 59 of the Federal Rules of Civil Procedure for
the United States District Courts. .......... = we ka
Rule 60 of the Federal Rules of Civil Procedure for
the United States District Courts. ...... a om eh oe
vi
ea
No. 85-414
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1985
DELORES ELLIOTT,
Respondent,
HELEN M. AMBROSE,
Petitioner,
AND ALL OTHER PERSONS SIMILARLY SITUATED,
Respondents,
Vs.
SPERRY RAND CORPORATION, a Delaware Corpora-
tion; THE INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO and LOCAL
UNION NO. 2047 OF THE INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF OF RESPONDENT CLASS OF ALL OTHER PERSONS
SIMILARLY SITUATED IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI
Respondent, Class of All Other Persons Similarly Sit-
uated (hereinafter “Class”), respectfully prays that no writ
of certiorari be issued to review the judgment and opin-
2
ion of the United States Court of Appeals for the Eighth
Circuit, entered on these proceedings on March 11, 1985,
on which rehearing was denied by Order, dated and en-
tered, May 13, 1985.
OPINIONS AND JUDGMENTS BELOW
These proceedings were precipitated by District Court
Orders and a Memorandum that were decided on May
31, 1984, set forth in Class’ Appendix G. The Eighth
Circuit affirmed the District Court on May 11, 1985,
Class’ Appendix I, and denied Petitioner’s request for re-
hearing on May 13, 1985, Class’ Appendix J. Other Or-
ders, Memoranda and Opinions of the District Court and
the Eighth Circuit that must be considered in determining
whether to issue the Writ are set forth in Respondent
Class’ Appendices A, B, C, D, E, F, H and K and in Pe-
titioner’s Appendix at A-24 to -62. The decisions set forth
in referenced Class’ appendices A, B and D are reported
at 554 F.2d 868, 79 F.R.D. 580 and 680 F.2d 1225,
respectively.
AUTHORITIES INVOLVED
Petitioner suggests that certain constitutional provisions,
statutes and rules are involved, as set forth in her Peti-
tion. Respondent Class wishes to add that pertinent pro-
visions of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §2000e et seq.; the Equal Pay Act, 29 U.S.C.
§206, and the Labor Management Relations Act, 29
U.S.C. §157 et seq. were also the subject of the underlying
litigation. Rule 17 of this Court mus: be addressed, as
must Rules 23, 59 and 60, applicable to the District Courts.
3
STATEMENT OF THE CASE
On December 9, 1974, this suit was filed by Petitioner,
Respondent Elliott and Roberta Pettii (President of the
Minnesota branch of the National Organization of Women),
seeking relief on behalf of a class of female raembers of
respondent unions, who were employees of respondent
Sperry Rand Corporation (hereinafter “Sperry”). The Com-
plaint alleged violations of Title VII of the Civil Rights
Act of 1964, as amiended, 42 U.S.C. §2000e et seq.; the
Equal Pay Act, 29 U.S.C. §206 and the Labor Manage-
ment Relations Act, 29 U.S.C. §157 et seq. Petitioner
herein, Respondent Elliott and Roberta Pettit sought ju-
dicial recognition of their status as class representatives.
(Pettit was later dismissed as a party because she lacked
standing.) Extensive discovery of the named plaintiffs and
others was conducted by Sperry and the unions, in an at-
tempt to establish, inter alia, that named plaintiffs did not
satisfy the legal requirements of class representative status.
On May 27, 1976, Judge Larson conditionally certi-
fied the class, rejecting a!l arguments that named plain-
tiffs Ambrose and Elliott were not adequate class repre-
sentatives despite or rather, because of, their long history
of adversarial activities with respondent-defendants here-
in. Judge Larson’s Order is set forth in Petitioner’s Appen-
dix at A-24 to -62. Sperry then sought a writ of mandamus
from the Eighth Circuit, which was denied. Sperry Rand
Corporation v. Larson, 544 F.2d 868 (8th Cir. 1977) (re-
printed in Class’ Appendix A).
On July 12, 1978, Judge Larson modified his May 27,
1976 Order by redefining the class. Elliott v. Sperry Rand
Corporation, 79 F.R.D. 580 (D. Minn. 1978) (reprinted
in Class’ Appendix B).
ahieetnieiaiaiitiel
“ cuca me he lia ly alae
4
Extensive discovery on the merits preceded trial, which
commenced on September 8, 1980. Plaintiffs rested on
October 21, 1980. Although there were settlement discus-
sions that took place after plaintiffs rested and discovery
depositions of Sperry’s experts were taken, settlement dis-
cussions did not begin in earnest until after defendants’
Rule 41 (b) Motions were denied from the bench, on De-
cember 12, 1980. At that time, Judge Larson made un-
conditional his July 12, 1978 ruling regarding the class
representatives and found class counsel to have been com-
petent, as required by the Federa! Rules of Civil Procedure.
On May 20, 1981, counsel for the various parties
signed a settlement agreement although the named plain-
tiffs indicated they objected to the terms of settlement and
had hired separate counsel. The objections of named
plaintiffs and certain class members were rejected in Judge
Larson’s Order of Aucust 11, 1982, set forth in Class’ Ap-
pendix C, approving the settlement.
Petitioner’s Statement of the Case identifies the two law
firms that represented the class. Shortly after entry of the
above Order approving the settlement, the named plaintiffs
filed ethics violation charges against the individual lawyers
of the two law firms that represented the Class. At about
the same time, named plaintiffs filed an appeal from the
Order approving the settlement.
Petitioner’s brief correctly states that all such ethics
charges were dismissed and the case closed, on or before
December 2, 1981. On June 23, 1982, the Eighth Circuit.
per curiam, affirmed Judge Larson’s Order approving set-
tlement, but ordered payment of named plaintiffs’ at-
torneys out of the settlement funds designated for payment
of attorneys. Elliott v. Sperry Rand Corporation, 680 F.2d
1225 (8th Cir. 1982) (reprinted in Class’ Appendix D).
5
The Eighth Circuit, as had Judge Larson, rejected Peti-
tioner’s arguments of inadequacy of relief, inadequacy of
procedures for enforcement and violations of due process.
On August 3, 1982, Judge Larson issued an Order direct-
ing that named plaintiff's counsel be paid from the at-
torney’s fee fund created by the settlement agreement. The
opinion is se* forth in Class’ Appendix E.
On September 28, 1982. Judge Larson ordered the Class
settlement funds to be distributed, pursuant to stipulation,
signed by counsel for al! parties, including Petitioner’s own
counsel. The Order and Stipulation are set forth in Class’
Appendix E. The funds were distributed, accordingly.
In late 1983, Sperry moved the Court for an Order of
dismissal of the case, upon a showing of full compliance
with the Settlement Agreement. Petitioner obiected and
sought, once again, to set aside the settlement. Petitioner,
in effect, requested a new trial. On May 31, 1984, Judge
Larson issued two Orders and a Memorandum, dismissing
the case as to all parties and claims on the merits and
denying Petitioner’s Motions to Invalidate the Settlement
and to Stay Order for Judgment. These are set forth in
Class’ Appendix G.
On June 8, 1984, Petitioner filed an appeal but also
moved once again, for a new trial and for an amended
judgment.
On September 10, 1984, Judge Larson issued an Order
denying Petitioner’s Motion of June 8. Judge Larson
treated these Motions as thoush they sought reconsidera-
tion of his May 31, 1984 Orders, even though Petitioner
had already appealed from those Orders. This Order is set
forth in Class’ Apnendix H.
On March 11, 1985, the Eighth Circuit affirmed the
6
May 31, 1984 judgment of the District Court, after a re-
view of the entire record. The Eighth Circuit per curiam
opinion is set forth in Class’ Appendix I. The Eighth Cir-
cuit denied rehearing on May 13, 1985 as set forth in
Class’ Appendix J.
On September 9, 1985, Petitioner filed her request
for a writ of certiorari. The Class opposes Petitioner’s re-
quest.
SUMMARY OF ARGUMENT
The Class opposes the Petitioner’s request for a writ of
certiorari for all of the reasons given by the Courts below
in 1) denying Petitioner’s motions for a new trial and
motions to set aside the settlement and 2) in dismissing
the case in its entirety and on the merits. Petitioner’s mo-
tions were not brought in a timely manner, as prescribed
in the Rules of Civil Procedure. Finally, Petitioner cannot
now seek to set aside the settlement when her own counsel,
acting on her behalf, stipulated to distribution of all settle-
ment funds.
Petitioner has not stated and indeed, could not have
stated, any factual or legal basis, pursuant to this Court's
Rule 17, that would suggest that this Court should exer-
cise its discretionary powers to issue the Writ.
REASONS WHY THE WRIT
SHOULD NOT BE ISSUED
Ail parties and the District Court recognized the
strengths and weaknesses of the arguments advanced by
the Class and Petitioner at trial. The compromise was
a means by which every Class member, including former
employees of Sperry, could be afforded some monetary
7
relief and by which all current employees of Sperry would
be afforded equitable relief, regardless of whether each
person was discriminated against, in fact.
The settlement agreement vested the District Court with
absolute power to supervise the terms of the agreement
and, upon proof of compliance, the Court, in its discretion, -
could dismiss the case upon facts presented by Sperry to
the Court for its review. Upon facts presented to the Court
by Petitioner, upon the argument of counsel, the District
Court ordered judgment of dismissal, on May 31, 1984.
Class’ Appendix G. The reasons stated by the District
Court in its Memorandum and by the Eighth Circuit in its
per curiam affirmance of the District Court are adopted by
the Class.
The Eighth Circuit has reviewed the entire record on
three occasions. Two of those reviews took place after the
District Court had approved the settlement. On both ap-
peals, the Eighth Circuit could find no basis to set aside
the settlement of the Class action because there was no
evidence that Judge Larson had abused the exercise of his
discretionary powers in applying Rule 23 of the Federal
Rules of Civil Procedure.
Petitioner’s attacks on Class counsel and Judge Larson
are not surprising. Petitioner is now and always has been a
well-intentioned, effective, geriuine advocate of women’s
rights, union rank-and-file rights and employee rights.
She has become more skilled than many lawyers in the
practice of law because of her litigious activities during
the last 25 years, against all respondent-defendants here-
in. Unfortunately, Petitioner has not attended law school
or become so proficient in the practice of law as to learn
the legal criteria and means of stating claims upon applica-
8
tion of facts. During the last ten years, it has become ap-
parent that she believes that all who disagree with her are
conspiring to deprive her and those she claims to represent
of various rights, both statutory and constitutional. What
Petitioner fails to recognize is that she has won on every
issue that could have been won and as to that defendant,
Sperry, against whom the only effective relief could have
been afforded.
Petitioner and Delores Elliott, and they alone, caused
massive changes in the manner in which females are hired
and promoted by Respondent Sperry. The evidence pre-
sented at trial clearly showed a disparate impact on those
few women who were denied promotions to certain job
positions during certain years. Those job positions to
which Sperry formerly applied arbitrary conditions of em-
ployment or promotion have now become positions avail-
able on a seniority basis or to those who can demonstrate
compliance with validated criteria.
This case was settled by agreement of counsel and ap-
proval of the trial and appellate Courts after seven years
of litigation, involving thorough and costly discovery and
legal analysis. The Class was afforded the relief to which
it would have been entitled had the matter been tried to
a conclusion and decided in favor of the Class. To be sure,
the Class had prayed for other relief in the form of equal
pay for equal work which was not remedied by the settle-
ment. Counsel for all parties and the District Court recog-
nized, however, that the Class allegations on this issue
were based not on identical job tasks but instead on a com-
parison of statistical information generated by a novel tool
of industrial psychology known as the PAQ. Two of the
job classes the class Petitioner alleged to be equal were
A eaten, Mosh ehecabt: SL
9
General Inspector (General Inspector “A”), all male, and
Inspector (General Inspector “B”), all female. Dr. Ray-
mond Mendel’s expert analysis of the results of the PAQ
did not show these jobs to be equal. Plaintiff Ambrose’s
arguments of the equivalance of Teamster-Unit Mechani-
cal Inspectors (all male) to General Inspectors and to In-
spectors, unequal job classes, is therefore unfounded. Even
if the Inspector job classes were equal, there remains today
a legal question of whether persons doing different job
functions can be compared so as to state a claim for which
relief can be granted under either Title VII or the Equal
Pay Act.
Class counsel Bland, by his Affidavit submitted to the
District Court, has denied any recollection of discussions
with Jennie Hodder involving the Teamsters-Unit Mechan-
ical Inspectors until trial. Even if there had been such
conversations in 1976, the time period of filing charges
against the Teamsters Local and International and Sperry
may have expired. The Class had been or was about to be
certified. No Class member had standing to make any al-
legations against the Teamsters or against Sperry in this re-
gard. If one Union (the Teamsters), had bargained more
skillfully than another, (the TBEW), thereby obtaining
higher pay for its members, the difference in pay did not
constitute sex discrimination by Sperry against female
members of the IBEW unit. Analysis of information gen-
erated by the costly and exhaustive manual and computer
analysis of the applicant flow data did not demonstrate
that Sperry deprived any female members of the Class of
the opportunity to apply for work in the Teamster bargain-
ing unit.
The District Court supervised this case for more than
10
nine years. In the six weeks of trial it received hundreds
of exhibits and listened to thousands of pages of testi-
mony. The Court had designated Class counsel upon cer-
tification and, when plaintiffs rested their case, found
class counsel to have been competent and vigorous repre-
sentatives of the interests of the Class. None of the argu-
ments raised by\ plaintiff Ambrose in support of her Mo-
tions to set aside the settlement is related to the facts dis-
covered or presented to the District Court, the Eighth Cir-
cuit or to this Court. Instead, Ambrose’s arguments are a
continuation of her incessant attacks upon Local 2047
and the International, alleging less than adequate repre-
sentation of the membership. This was never a Union
representation case nor could it have been. There is noth-
ing to prevent Ambrose and those who share her views
from taking further steps, including litigation, in the cru-
sade against the Unions. Furthermore, if Ambrose believes
that Sperry continues to discriminate illegally, there is
nothing to prevent her from filing discrimination charges
with the appropriate administrative agencies or commenc-
ing litigation against the appropriate parties, seeking re-
lief according to recognized legal theories.
The issues raised by Ambrose that were most recently
reviewed by the lower Courts had been previously ad-
dressed by the District Court, in 1981, and the Eighth Cir-
cuit, in 1982, in their approval of the settlement and by
the Ethics Committee in 1981. Ambrose brought her
Motion to Invalidate and Stay pursuant to Federal Rules
of Civil Procedure 59 and 60.
On the present record, Ambrose’s citation of Rule 59
can be read only as a request for a new trial. Rule 59 (a)
(2) states that such a Motion must be based on principles
1]
of law pronounced by Courts of equity prior to the adop-
tion of the rules of civil procedure. The only support for
the Ambrose Motion is the alleged conflict of interest.
Named plaintiffs did not urge the District Court (at the
time of the fairness hearing in 1981) or the Eighth Cir-
cuit (on the appeal from the fairness hearing in 1982) to
set aside the settlement on the basis of any alleged conflict
of interest. This was expressly recognized and so stated in
the opinion of the appellate Court. Elliott v. Sperry Rand
Corp., 680 F.2d 1225, 1227) (8th Cir. 1982). Instead,
named plaintiffs elected to charge counsel with conflicts of
interest in proceedings before the Ethics Committee and
the Lawyers Professional Responsibility Board. Their
charges were fully investigated and dismissed as without
merit by the panel having jurisdiction over these charges.
A complete record of those proceedings (except for the
purely internal documents to which neither the complain-
ing parties nor responding parties have had access) was
furnished to the District Court by Ambrose, and is part of
the record. The District and Appellate Courts have not
found any conflict of interest on the part of Class Counsel.
The Class has nothing to gain and everything to lose
should the settlement be set aside and trial resumed. Pe-
titioner has not suggested how or that different counsel
for the Class would improve upon the previously approved
settlement. Ambrose offers no suggestions as to how all of
the funds paid to class members would be returned, should
the settlement be set aside. The consequences of setting
aside the settlement would be unmanageable.
Ambrose alleges no clerical mistake in any Order of the
District Court. Rule 60 (b) applies only where a party
moves for relief from an Order upon a showing of certain
12
facts. The allegations of Ambrose concerning conflict of
interest were made to an appropriate forum which found
the Complaint to be without merit. Ambrose should be es-
topped from raising such an issue again. Her failure to urge
the alleged conflict of interest to the District Court and to
the Eighth Circuit at the fairness hearing can also be
viewed as a waiver. Pioneer Insurance Company v. Gelt,
558 F.2d 1303, 1311-1332 (8th Cir. 1977) (60 (b) mo-
tion must be filed within one year; “appellate court will
not disturb the exercise of [trial court’s] discretion in the
absence of abuse”); Chicago and North Western Railway
Company v. Union Packing Company, 527 F.2d 592
(8th Cir. 1976) (per curiam) (60 (b) motion denied be-
cause it was made more than one year after judgment).
Rule 60 (b) also states that a Motion to relieve a party
from an Order shall be made within a reasonable time and,
with regard to certain allegations, within one year of the
date of the Order. This District Court’s original Order ap-
proving the settlement was entered in August of 1981. A
second Order, subsequent to and in accordance with the
Eighth Circuit decision approving the settlement, was en-
tered in August of 1982. Petitioner’s then attorney even
stipulated to the distribution of settlement’ funds on Sep-
tember 28, 1982. More than one year passed until Peti-
tioner brought her Rule 59 and 60 Motions in January
1984. The allegations that Ambrose is now making are
also untimely. Assuming that some principles of law would
have allowed the District Court to entertain Ms. Am-
brose’s Motion at any time, there is no justifiable reason
for her not to have brought this Motion shortly after the
August 1981 Order was entered and certainly not later
than September 28, 1982, the date on which the District
13
Court ordered distribution of the settlement funds, pur-
suant to her own attorney’s Stipulation. This Petition is
therefore frivolous, not because Petitioner is seeking to
harass but because, by her own actions and inaction in
1981 and 1982 and through her own counsel, Petitioner
has acquiesced in and waived any rights she may have
had to challenge the settlement.
This Court’s Rule 17.1 (a) and (c) indicates some of
the circumstances upon which a writ of certiorari might
be issued. The only argument advanced by petitioner in
support of her Petition appears to be that the Eighth Cir-
cuit
has so far departed from the accepted and usual
course of judicial proceedings, or so far sanctioned
such a departure by a lower court, as to call for an
exercise of this Court’s power of supervision.
Id. (a). There is no evidence or law to suggest that the
Eighth Circuit departed from or sanctioned such a depar-
ture from the accepted and usual course of judicial pro-
ceedings for the reasons stated herein.
The Petitioner’s Questions Presented were either 1)
presented to the District Court and Eighth Circuit, both of
which ruled adversely to Petitioner in or before 1982,
other than in conjunction with this latest appeal, or 2)
should have been presented to those Courts in 1981 or
1982 in conjunction with the judicial review of the settle-
ment but were not, estopping Petitioner from raising those
questions for the first time in this Court.
14
CONCLUSION
It is not in the best interests of the Class to set aside the
settlement agreement. To do so might require the return
of monies paid to the Class and, more significantly,
would eradicate the significant benefits gained by women
in Sperry’s employ since the time the charges were filed on
behalf of this Class in 1972. Those benefits were obtained
because of Ambrose’s actions in this litigation. Ambrose
must understand, however, that Title VII is not a panacea;
it circumscribes with particularity what remedies can be
sought by lawyers on behalf of a class and concomitantly
circumscribes the relief that can be afforded by the Court.
Plaintiff Ambrose objected to the settlement and ap-
pealed the Order approving the settlement through counsel
other than Class counsel. The arguments made then in
objection to the settlement are no different than those
made now to set aside the settlement. There are no newly
discovered facts. All arguments were made by Ambrose’s
counsel two years ago and decided by the District Court
and the Eighth Circuit.
The Petitioner’s claims against Sperry Rand Corpora-
tion and the unions have been asserted loudly and clearly
since the mid-1960’s. Those claims have been litigated.
The remedies which she sought for the Class were awarded,
where available as a matter of law or as a product of
compromise. Some of the remedies afforded by the settle-
ment were not otherwise available. The best interests of
the Class have been served. Petitioner has had a pro-
found and long-lasting impact on defendant-Respondents
herein. Undoubtedly, Petitioner will continue her crusade
in support of equal rights. Petitioner is to be admired for
15
her perseverance and sense of justice; she is the only
member of the Class to reject her award.
There is a time when every contest must end; this contest
must end now. The request for issuance of the Writ
should be denied.
October 9, 1985.
Respectfully submitted,
/s/ BRADLEY M. JONES, ESQ.
/s/ J. RICHARD BLAND, ESQ.
Meagher, Geer, Markham, Anderson,
Adamson, Flaskamp & Brennan
2250 IDS Center
Minneapolis, Minnesota 55402
(612) 338-0661
Attorneys for Respondent Class
of All Other Persons Similarly
Situated
Richard A. Williams, Jr., ESQ.
Hvass, Weismann & King, Chartered
Suite 2100
100 S. Sth Street
Minneapolis, Minnesota 55402
(612) 333-0201
Attorneys for Respondent Class
of All Other Persons Similarly
Situated
APPENDIX
A-1
Appendix A
SPERRY RAND CORPORATION,
Petitioner,
V.
Honorable Earl R. LARSON, United
States District Judge for the District
of Minnesota, Respondent,
and
Delores Elliott and Helen Ambrose, and
all other persons similarly situated,
Respondents.
No. 76-1734.
United States Court of Appeals,
Eighth Circuit.
Submitted Oct. 12, 1976.
Decided May 9, 1977.
Before GIBSON, Chief Judge, HEANEY and WEBSTER,
Circuit Judges.
WEBSTER, Circuit Judge.
Sperry Rand Corporation, a defendant in a Title VII ac-
tion brought by female employees, petitions this Court for
a writ of mandamus to compel decertification of class
union status previously granted conditionally to plaintiffs
by the District Court.’
The complaint seeks injunctive relief against class-based
sex discrimination in employment practices. In addition,
"The Honorable Earl R. Larson, United States District Court for the
District of Minnesota.
A-2
back pay and attorneys’ fees are demanded. Also named
as defendants are Local Union No. 2047 of the Internation-
al Brotherhood of Electrical Workers, and the Inter-
national Brotherhood of Electrical Workers, AFL-CIO.”
I. Availability of Mandamus
Petitioner did not seek interlocutory review of the
class action certification under 28 U.S.C. § 1292(b). In-
stead, it sought relief by way of the extraordinary writ
of mandamus. This was a conscious procedural choice
and it severely limits the scope of our review.”
*This litigation began in December, 1974. In addiiion to their Title VII
claims under 42 U.S.C. § 2000e ef seq., plaintiffs Delores Elliott and
Helen Ambrose asserted claims for violation of the Equal Pay Act
of 1963, 29 U.S.C. § 206, and the Labor Management Relations Act,
29 U.S.C. § 157 et seq. They sought to represent a class consisting of
women who were, are, might have become, or might become members
of the International Brotherhood of Electrical Workers, AFL-CIO
[IBEW] and Local 2047 and who were, are, might have become, or
might become employees of Univac at its St. Paul plants since July
2, 1965, and who have been, are, or might be adversely affected by
the practices of which they complained.
Petitioner filed a motion asking the District Court to determine,
inter alia, the propriety of bringing this suit as a class action. After
submission of memoranda and oral argument, the District Court issued
a memorandum order on May 27, 1976. It denied certification to the
claims under the Equal Pay Act and Labor Management Relations
Act, but conditionally certified the Title VII action for class action
status under Fed.R.Civ.P. 23(b(2). It defined the class to include form-
er, present and future female employees of Univac employed at its
plants in and near St. Paul, Minnesota. who are, have been, or will
be members of Loca] 2047 and IBEW during the period commencing
July 2, 1965, and continuing to the date of trial.
*At oral argument, counsel for petitioner explained that this Court ap-
eared to be inhospitable to interlocutory appeals from class action
determinations. Because we do not accept that evaluation, we add
these additional comments.
The impact of a class action determination on the dimensions of
the trial and the exposure to liability can be enormous. See Schmidt
v. Fuller Brush Co., 527 F.2d 532, 535 (8th Cir. 1975). This fact
of life must be balanced against general judicial policy disfavoring
piecemeal litigation. See Will v. United States, 389 U.S. 90, 96, 88
S.Ct. 269, 19 L.Ed.2d 305 (1967). When a close question of class ac-
tion vel non is presented, either under the facts or under statutory
construction, district courts ought to be more receptive to certifying
n - pi a sail Kaila
A-3
“The remedy of mandamus is a drastic one, to
be invoked only in extraordinary situations.” Kerr v.
United States District Court, 426 U.S. 394, 402, 96 S.Ct.
2119, 2124, 48 L.Ed.2d 725 (1976). As we said in In re
Cessna Distributorship Antitrust Litigation, 532 F.2d
64, 68 (8th Cir. 1976):
The remedy of mandamus is available only in those cir-
cumstances where the district court exceeds “the sphere
of its discretionary power.” Will v. United States, 389
U.S. 90, 104, 88 S Ct. 269, 278, 19 L.Ed.2d 305, 315
(1967). See In re Cessna Aircraft Distributorship An-
titrust Litigation, supra, 8 Cir., 518 F.2d 213 at 216;
Pfizer Inc. v. Lord, 456 F.2d 545, 547-48 (8th Cir.
1972). See also Weight Watchers of Philadelphia, Inc.,
v. Weight Watchers International, Inc., 455 F.2d 770,
775 (2d Cir. 1972). Mandamus is an extraordinary rem-
edy reserved only for extraordinary situations. Stein v.
Collinson, 499 F.2d 91, 95 (8th Cir. 1974): Gialde v.
Time, Inc., 480 F.2d 1295, 1302 (8th Cir. 1973).
critical questions for interlocutory review if it fairly appears that
an immediate appeal may materially advance the ultimate termination
of the litigation. It is a rare case in which a class action determination
will qualify as a final order appealable under the collateral order
doctrine. As a result, a party aggrieved by a class action determination
and denied a section 1292(b) certification is relegated to seeking man-
damus. This seriously narrows the scope of appellate review at a
critical stage in the litigation and casts upon the district judge the
uncomfortable role of a respondent, including the task of responding
unless he chooses to rely upon the attorneys for the opposing party.
We think that the legitimate objectives of class action litigation can
best be served by our disclaiming any hostility interlocutory certifica-
tions in situations in which the district court should reasonably con-
clude that “the gravity of the class action certification issue require[s]
an expedited hearing by this court.” In re Cessna Aircraft Distributor-
ship Antitrust Litigation, 518 F.2d 213, 216 (8th Cir.), cert. denied,
423 U.S. 947, 96 S.Ct. 363, 46 L.Ed.2d 282 (1975), See. e.g., Eisen
v. Carlisle & Jacquelin, 417 U.S. 156, 169-72, 94 S.Ct. 2140, 40 L.Ed.
2d 732 (1974); LaChapelle v. Owens-Illinois, Inc.. 513 F.2d 286 (5th
Cir. 1975): Katz v. Carte Blanche Corp.. 496 F.2d 747 (3rd Cir.).
cert. denied. 419 U.S. 885, 95 SCt. 152, 42 L.Ed.2d 125 (1974):
Herhst v. International Tel. & Tel. Corp., 495 F.2d 1308, 1311-13
(2d Cir. 1974).
A-4
Mandamus may be appropriate to review orders
granting class action designation when the issue presented
is one of clear usurpation of power by the district court.
Thus, in Schmidt v. Fuller Brush Co., 527 F.2d 532 (8th
Cir. 1975), we issued the writ where the District Court had
granted Rule 23‘ class action certification in an action
brought under the Fair Labor Standards Act notwithstand-
ing the special and conflicting “opt in” requirements of
that Act. See 29 U.S.C. § 216(b). Mandamus was similarly
granted in Pan American World Airways, Inc. v.
United States District Court, 523 F.2d 1073 (9th Cir.
1975), and McDonnell Douglas Corp. v. United States
District Court, 523 F.2d 1083 (9th Cir. 1975), cert. denied,
425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976),
where the district court had ordered that next of kin of
passengers killed in airline crashes be notified of other
pending litigation against the airlines, thus exceeding its
power under any statute, rule or equity power of the court.
It is our task to determine whether the action of the Dis-
trict Court in this case so exceeded its discretion as to be a
usurpation of power requiring the issuance of the super-
visory writ.
II. The Merits
Employment discrimination by definition has been
construed as class-wide discrimination and the class action
requirements have thus been broadly interpreted by the
courts. See Wright v. Stone Container Corp., 524 F.2d
1058 (8th Cir. 1975); Bowe v. Colgate-Palmolive Co.,
416 F.2d 711, 721 (7th Cir. 1969); Jenkins v. United Gas
Corp., 400 F.2d 28 (Sth Cir. 1968). This of course does
“Fed.R.Civ.P. 23.
A-5
not obviate compliance with the requirements of Rule 23,
see Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499
(5th Cir. 1968), nor will individual claims automatically
become class claims without a showing that others in the
class were victims of the same or similar employment pat-
terns and practices. See Wright v. Stone Container Corp.,
supra, 524 F.2d at 1062.
The complaint in the present action alleges no claims
peculiar to the named plaintiffs, Elliott and Ambrose;
instead, it charges that plaintiffs and members of the class
“have been and are being deprived of income in the
form of wages and of prospective retirement benefits, so-
cial security and other benefits due to them as workers,
solely because of their sex.” The discriminatory employ-
ment practices affecting the class which are alleged to have
jeOpardized jobs and adversely affected opportunities for
advancement are set forth in the margin."
The main thrust of petitioner’s claim to relief by way of
mandamus is that the District Court’s certification of the
class under Rule 23(b) (2), combined with the order of
notice to class members similar to that required under
Rule 23(b) (3), operated to lock in antagonistic members
of the class and at the same time foment litigation. It was
this method of proceeding, ordered by the District Court
pursuant to Rule 23(d), that petitioner contends was a
*The discriminatory practices and policies alleged by plaintiffs include,
but are not limited to, the following:
(a) failing and refusing to hire females on an equal basis with men
at a rate of pay equal to that paid males;
(b) establishing and maintaining job classifications which result in
exclusion or limitation of females because of their sex from jobs
and job opportunities for which they are otherwise qualified and
for which sex is not a bona fide occupational qualification:
(c) failing and refusing to provide training for females because of
their sex for positions for which sex is not a bona fide occupa-
tional qualification:
A-6
usurpation of power by the District Court. In order to as-
sess this contention, we must determine (1) whether the
class action certification was so plainly inappropriate
that it exceeded the court’s discretion, and (2) whether the
additional notice requirements were, under the circum-
stances present in this case, clearly outside the discretion
of the District Court.
A. Class Action Certification
The factual determinations upon which the District
Court found that plaintiffs had satisfied the class ac-
tion prerequisites of Rule 23(a),° even if arguably er-
roneous, do not warrant resort to supervisory mandamus.
The District Court held that the requirements of numer-
(d) failing and refusing to promote females because of their sex to
positions for which sex is not a bona fide occupational qualifi-
cation;
(e) establishing and maintaining seniority systems which result in
more frequent lay-off of females from jobs than males;
(f) failing and refusing to pay females on an equal basis with men
for substantially equal work;
(g) using subjective bases for promotion which result in discrimina-
tion against females in promotion. These subjective bases in-
clude, but are not limited to, the use of subjective and discrimin-
atory reports and opinions from supervisors, invalid tests, invalid
job requirements, repeated failures to consider the seniority of
females when all other criterion [sic] and factors are relatively
equal between applicants for promotion, and subjective and dis-
criminatory granting of on-the-job training in promotion;
(h) failing and refusing to hire females for certain jobs, having fe-
males do jobs which are lower in pay, and by hiring female to
do jobs which have fewer chances for promotion than jobs for
which males are hired.
"Rule 23(a) establishes these prerequisites to maintenance of a class ac-
tion:
(1) the ~— is sO Numerous that joinder of all members is impracti-
cable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical
of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect the
interests of the class.
A-7
osity, commonality of issues, and typicality had been met.
See Fed.R.Civ.P. 23(a). These determinations are well
within the trial court’s “sphere of its discretionary power.”
See Will v. United States, 389 U.S. 90, 104, 88 S.Ct. 269,
19 L.Ed.2d 305 (1967); In re Cessna Aircraft Distributor-
ship Antitrust Litigaticn, 518 F.2d 213, 216 (8th Cir.),
cert. denied, 423 U.S. 947, 96 S.Ct. 363, 46 L.Ed.2d 282
(1975). No discussion of these factors is required.
[8] A more concerted challenge is made to the Dis-
trict Court’s finding that plaintiffs would fairly and ade-
quately represent the class. See Rule 23(a) (4).’ Our review
under a petition for mandamus is limited to a determination
of whether the District Court acted outside its discretion
or so clearly ignored a compelling showing of inappro-
priateness that granting class action certification amounted
to a denial of due process.
No challenge is made to the competency of plaintiffs’
counsel. See Eisen v. Carlisle & Jacquelin, 391 F.2d 555,
562 (2d Cir. 1968). Instead, it is claimed that plaintiffs, as
past officers of the union, engaged in activities in and out
of office that were not consistent with the interests of other
members of the class. Five sources of antagonism were
brought to the District Court’s attention:
{. Intra-union disputes which occurred from 1968-
1970 while plaintiffs were union officers;
"The issue of antagonism is occasionally considered in connection with
Rule 23(a)(3)’s requirement of typicality. See, e. g., Windham v. Amer-
ican Brands, Inc., 68 F.R.D. 641, 649 (D.S.C. 1975), rev’d on other
grounds, 539 F.2d 1016 (4th Cir. 1976); Kinsey v. Legg, Mason &
Co., 60 F.R.D. 91, 99 (D.D.C. 1973); Cannon v. Texas Gulf Sulfur
Co., 47 F.R.D. 60, 63 (S.D.N.Y. 1969). It will suffice for our purpose
to consider this issue under Rule 23(a)(4), where it is clearly material.
A-8
2. Plaintiffs, as former union officers, may be called
as witnesses to defend the Local against charges that it is
liable for discriminatory practices that occurred during
the time they were in office;
3. Plaintiffs were suspended from office in 1970 by
the International and prohibited from holding office for
five years. Since that time they have initiated three different
proceedings against the unions, suggesting an ulterior mo-
tive for this suit.
The class itself does not support this suit, as evidenced
by a resolution of nonsupport passed 83-0 at a union meet-
ing and by unsolicited petitions in which the signers stated
they did not support the action.
5. Since plaintiffs’ suspension period has ended, they
are likely to run for office again and may be using this
lawsuit to advance their political ambitions.
The District Court gave careful consideration to whether
these factors disqualified plaintiffs as fair and adequate
representatives of the class, guided by the following princi-
ples, which we hold to be correct:
(1) the antagonism which will defeat maintenance of a
class action must relate to the subject matter in con-
troversy, as when the representative’s claim conflicts
with the economic interests of the class;
(2) disagreements as to the remedy do not necessarily de-
feat a class action, especially in Title VII cases where
the Court has broad powers in fashioning appropriate
remedies; (3) the mere existence of political divisions or
factionalism within a union does not require class de-
certification;
A-9
(4) disagreements as to the wisdom of a union member’s
suing the union are not a proper basis for decertification;
(5) union officers are not necessarily disenabled from
suing on behalf of union members when the interests as-
serted are solely the interests of members and em-
ployees; (6) evidence of antagonism based on member-
ship votes should be carefully scrutinized and should be
clear and convincing; and (7) while questions of motive
are secondary, the Court should be cognizant of the limi-
tations of its supervisory powers and should be sensitive
to the possible existence of ulterior motives which might
jeopardize the interests of the class.”
In its carefully considered memorandum opinion,
the District Court concluded that the frictions de-
scribed above did not reach the subject matter of the suit;
that plaintiffs’ past history as union officers would not
preclude a vigorous prosecution of the claims of class-based
discrimination; that the evidence of lack of enthusiasm
by other union employees was not reliable and in any
event was not controlling; and that plaintiffs’ private mo-
tives would not affect the merits of the case. No usurpa-
tion of power can be gleaned from these conclusions, singu-
larly or in the aggregate, and a case for mandamus to re-
view class action certification has not been made out on
grounds of antagonism alone.”
“See Redmond v. Commerce Trust Co., 144 F.2d 140, 151-52 (8th Cir.),
cert. denied, 323 U.S. 776, 65 S.Ct. 187, 89 L.Ed. 620 (1944). See
generally C. Wright and A. Miller, 7 Federal Practice and Procedure
§ 1768 (1972).
*The District Court appropriately observed: Should genuine conflict arise
in the future, the Court, being advised by counsel for the class, may
TemOve any antagonism or, if necessary, decertify the class.
A-10
The District Court conditionally certified the class under
Rule 23(b) (2). Rule 23 requires that in addition to finding,
as here, that the four prerequisites of Rule 23(a)” have
been met, there must be present one of the three alternative
requirements of Rule 23(b). The District Court found that
the provisions of subdivision (2) of Rule 23(b) had been
satisfied:
The party opposing the class has acted or refused to
act on grounds generally applicable to the class, thereby
making appropriate final injunctive relief or correspond-
ing declaratory relief with respect to the class as a
whole[.]
This provision was incorporated into Rule 23 with the
1966 amendment “primarily to facilitate the bringing of
class actions in the civil rights area.” 7A C. Wright and A.
Miller, Federal Practice and Procedure § 1775, at 24
(1972).
Rule 23(b)(2) certification is appropriate when plain-
tiffs seek injunctive relief from acts of -an employer
“on grounds generally applicable to the class.” Sex dis-
crimination in employment is such a ground. See Donald-
son v. Pillsbury Co., 554 F.2d 825 (8th Cir. 1977); Bowe
v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969).
That back pay may be a form of relief sought incidental to
injunctive relief will not preclude certification under Rule
23(b) (2). Senter v. General Motors Corp., 532 F.2d 511,
525 (6th Cir.), cert. denied, 97 §.Ct. 182 (1976); Society
for Individual Rights, Inc. v. Hampton, 528 F.2d 905,
906 (9th Cir. 1975); Rich v. Martin Marietta Corp., 522
See note 6, supra.
A-11
F.2d 333, 341 (10th Cir. 1975); Jones v. Diamond, 519
F.2d 1090, 1100 (Sth Cir. 1975); Nix v. Grand Lodge of
Int’l Ass'n of Machinists, 479 F.2d 382, 385 (Sth Cir.),
cert, denied, 414 U.S. 1024, 94 S.Ct. 449, 38 L.Ed.2d
316 (1973); Robinson v. Lorillard Corp., 444 F.2d 791,
802 (4th Cir.), cert. d’smissed, 404 U.S. 1006, 92 S.Ct.
573, 30 L.Ed.2d 655 (1971); Bowe v. Colgate-Palmolive
Co., supra, 416 F.2d at 720; Rodriquez v. Swank, 318
F.Supp. 289, 295 (N.D. Ill. 1970); aff'd without opinion,
403 U.S. 901, 91 S.Ct. 2202, 29 L.Ed.2d 677 (1971).
The District Court found that the fair representation re-
quirement of Rule 23(a) (4) had been satisfied and we
have held petitioner’s mandamus challenge on that issue
to be inadequate; hence there is no need to consider pe-
titioner’s argument that certification under Rule 23(b) (2)
was inappropriate because of the presence of antagonism.
B. Notice Requirements
Under a Rule 23(b) (2) certification the class members
are not entitled to notice of the action and are not en-
titled to “opt out” of the action if they so choose, as they
would be under a Rule 23(b) (3) certification.” See Rule
23(c) (2). Because of its concern that some members of
the class who did not favor a suit against the union or
were less than trustful of plaintiffs’ ability to represent
the common interests of the class against petitioner and the
unions would be “locked in,” the District Court ordered
that an appropriate notice be given to all members of the
“Under a Rule 23(b)(3) certification, the court must find that:
the questions of law or fact common to the members of the class
predominate over any questions affecting only individual members, and
that a class action is superior to other available methods for the fair
and efficient adjudication of the controversy.
A-12
»-—_—
class. Such notice would inform the class members not
only of the pendency of the litigation, but also of possible
back pay awards and the right of individual class mem-
bers to intervene and participate directly in the suit. Peti-
tioner charges that certification under Rule 23(b) (2), com-
bined with the District Court’s proposed notice, puts an
onerous burden of intervention on unwilling members of
the class and that the District Court will “potentially be
fomenting litigation unfairly against the defendants.” This,
petitioner argues, is a usurpation of power warranting re-
lief by mandamus. We reject this contention.
We think that petitioner misconceives the purpose
of the District Court in directing that notice be given.
Rule 23(b) (2) specifically authorizes the District Court
to require “for the protection of the members of the
class or otherwise for the fair conduct of the action, that
nctice be given in such manner as the court may direct to
some or all of the members of any step in the action, or of
the proposed extent of the judgment, or of the opportunity
of members to signify whether they consider the represen-
tation fair and adequate, to intervene and present claims
or defenses, or otherwise to come into the action[.]” The
discretionary power to require notice in a Rule 23(b) (2)
action thus serves as a “safety valve” which should be util-
ized “freely to protect the rights of the absentee members”
to assure that a judgment in a Rule 23(b) (2) action will
be “binding on all the class members.” 7A C. Wright and
A. Miller, Federal Practice and Procedure § 1786, at 144
(1972). See Sanders v. John Nuveen & Co., 463 F.2d
1075, 1082 (7th Cir.), cert. denied, 409 U.S. 1009, 93
S.Ct. 443, 34 L.Ed.2d 302 (1972). Far from usurping
power, the District Court in this case acted to protect the
A-13
interests of absentee members under a clear grant of dis-
cretionary power. We cannot read into this action a tacit
recognition that it was done to alleviate a presently exist-
ing antagonism within the class with respect to the subject
matter. It was rather a prudent safeguard against future
antagonism which might affect the binding nature of a
Rule 23(b) (2) judgment. Moreover, the District Court re-
tains the power to decertify the class or create sub-classes
if subsequent events indicate the need to do so. See Donald-
son v. Pillsbury Co., supra, 554 F.2d at 832, n. 6.
III. Conclusion
We emphasize that petitioner's claims were reviewed
here under the narrow standard applicable to a mandamus
proceeding.” We do not say that the result would have been
different under a 28 U.S.C. § 1292(b) interlocutory review,
but it is clear that this case does not present the extraordin-
ary situation for which mandamus is reserved. See In re
Cessna Distributorship Antitrust Litigation, supra, 532 F.
2d at 68; Stein v. Collinson, 499 F.2d 91, 95 (8th Cir.
1974); Gialde v. Time, Inc., 480 F.2d 1295, 1302 (8th Cir.
1973).
The petition for writ of mandamus is denied.
“Thus circumscribed, we nonetheless express our concerns about the
marginal nature of the class representatives in this case. We are con-
fident that the experienced district judge will continue to monitor
the performance of the class representatives and will take appropriate
action if antagonisms going to the merits of the claim surface within
the class. See note 9, supra.
B-1
APPENDIX B
Delores ELLIOTT, Heien Ambrose, Roberta Pettit, and
all other persons similarly situated,
Plaintiffs,
V.
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,
Defendants.
No. 4-74-Civ. 627.
United States District Court,
D. Minnesota,
Fourth Division.
July 12, 1978.
MEMORANDUM ORDER
LARSON, District Judge.
Defendant Sperry Rand has brought three motions be-
fore the Court: (1) to decertify the class, (2) in the al-
ternative to amend the class certification, and (3) to strike
all allegations in the complaint relating to the seniority
system. The other defendants join in the motions. The mo-
tions are based in part upon three United States Supreme
Court decisions decided after certification of this class ac-
tion. /nternational Brotherhood of Teamsters v. United
B-2
States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396
(1977); United Air Lines, Inc. v. Evans, 431 U.S. 553,
97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); and East Texas
Motor Freight System v. Rodriguez, 431 U.S. 395, 97
S.Ct. 1891, 52 L.Ed.2d 453 (1977).
1. Motion to Decertify.
Sperry Rand argues that the Supreme Court’s decision
in East Texas Motor Freight v. Rodriguez, supra, bears on
the propriety of the class certification in this case in two
respects. First, defendant suggests that under Rodriguez,
a class should not be certified if the named plaintiffs are
unable to prove their individual claims and therefore, in
the interest of economy, the named plaintiffs’ claims
should be tried first. If those claims fall, defendants as-
sert, Rodriguez mandate dismissal of the class action.
In Rodriguez the named plaintiffs did not move before
trial for class certification. They confined their arguments
and evidence at trial to their individual claims. The district
court held against them on those claims and then dismissed
the class action allegations. The Court of Appeals reversed
and sua sponte certified the class. In reversing the Court
of Appeals, the Supreme Court held that it was improper
to certify the class because “it was evident by the time the
case reached that court that named plaintiffs were not
proper class representatives” because, among other things,
they were not class members, Rodriguez, supra, at 403,
97 S.Ct. at 1896. ;
Rodriguez is clearly distinguishable from the case
at hand. it certainly does not suggest that a district
court should order plaintiffs to try their individual claims
B-3
before certified class claims are tried. Such orders would
undermine the principle that the merits of an action are
not to be considered in determining the maintainability of
a class action. Miller v. Mackey International Inc., 452
F.2d 424 (5th Cir. 1971); Elliott v. Sperry Rand, No. 4-
74-Civil 627, Memorandum Order, May 27, 1976, at 19; 7
Wright & Miller, Federal Practice and Procedure, § 1759
at 577-78 and Suppl. § 1759 n.81. Nor did the Supreme
Court suggest that certified class claims must always be
dismissed if named plaintiffs fail to prove their own
claims—it expressly noted the distinction between cases in
which individual claims are tried prior to any request
for certification and cases in which a class is properly certi-
fied. Rodriguez, supra, 431 U.S. at 406 n.12, 97 S.Ct.
1891. In the latter situation, even if the individual claims
fail, the class action may be permitted to proceed, depend-
ing upon the adequacy of named plaintiff’s efforts on be-
half of the class. See Moss v. Lane C0O., 471 F.2d 853,
855-56 (4th Cir. 1973). Finally, as this Court has noted
before, in order to prove their individual claims, plaintiffs
will probably proceed at trial by means of evidence which
demonstrates class discrimination—the “economy” of try-
ing individual claims first is thus questionable. In short, the
Court sees no merit to this proposal and declines to grant
a separate trial on this issue.
The second aspect of Rdriguez upon which Sperry
Rand relies is the Supreme Court’s discussion of antago-
nism between named plaintiffs and the class. Union mem-
bers in Rodriguez had voted against a merger of two col-
lective bargaining units; named plaintiffs, seeking to repre-
sent minority members of the union, requested such a
merger in their complaint. The Supreme Court cited this as
B-4
“another factor” militating against certification in that
case. Sperry Rand argues that since this Court relied on
the appellate opinion in Rodriguez, now overturned, it
should reconsider its analysis of the antagonism question
here.
The Court notes that its previous decision did not
rely on Rodriguez alone, but on principles drawn from
other cases as well. Memorandum Order, May 27, 1976, at
14-17. Moreover, the Supreme Court opinion cannot be
viewed as holding that as a matter of law any vote by class
members or putative class members contrary to some ex-
pressed view of named plaintiffs makes certification im-
proper. That determination necessarily turns on the facts
of each case. The relevant facts here were closely analyzed
and the Court found that the vote involved was unre-
liable; the voters were not congruent with the class; it was
unclear how much information the voters had and whether
it was correct; and that the vote revealed little about the
degree and nature of the opposition to the suit other than
generalized displeasure. It was not even clear whether the
voters opposed the particular relief plaintiffs seek. Rodri-
guez has no bearing on these factual findings.
Finally, defendant requests decertification because named
plaintiff Elliott resigned from Sperry Rand in De-
cember of 1977. They assert that she is no longer a proper
class representative because as a nonunion member she
is in an adverse economic position to current employees
who are union members. The latter may be required to pay
for a damage claim, through their dues if the union is
found liable, while Elliott is not faced with this possibility.
But the class includes former employees and Elliott is a
B-5
member of that group. Former employees have frequently
been permitted to represent current employees. See e. g.
Reed v. Arlington Hotel, 476 F.2d (8th Cir. 1972), cert.
denied 414 U.S. 854, 94 S.Ct. 153, 38 L.Ed.2d 103
(1973). Moreover, the other named plaintiff is still an
employee of Sperry Rand—if anything, Elliott’s resigna-
tion is a positive factor, for we now have a current em-
ployee and a former employee representing a class com-
posed of both groups. Finally, as the Court has noted be-
fore, should an actual conflict surface due to the factors
defendants cite, it can appropriately be dealt with at that
time.
II. Motion to Amend.
The class was conditionally certified and defined to in-
clude:
“former, present, and future female employees of de-
fendant Univac employed at its plants in and near St.
Paul, Minnesota and who are, have been, or will be
members of defendants Local and International, for
the period commencing on July 2, 1965 and continuing
to the date of trial.”
Defendants request that the certification be altered as
follows:
“Those female employees of defendant Univac employed
at its plants in and near St. Paul, Minnesota, who are,
have been, or will be members of defendants Local and
International, for the period commencing 180 days
prior to the filing of the EEOC complaint enabling this
Court to assume jurisdiction in this action, September
4, 1972.”
B-6
September 4, 1972, refers to the date 180 days preced-
ing the filing.
The amendment would limit the class to present em-
ployees and former employees who worked for Sperry
Rand as of September 4, 1972. But it appears from de-
fendant’s supporting memorandum that it also wishes to
limit the actionable claims in the suit to claims arising on
or after September 4, 1972, a limitation which the pro-
posed class definition does not accomplish because the
scope of the claims and the membership of the class are
not necessarily congruent. A present employee may assert
claims arising in 1970, for example. The Court believes
that the first issue—-who may be a class member—can be
resolved at this time. The second question is more com-
plex, has little to do with the class definition, and may de-
pend upon the facts as they subsequently develop; the
Court will briefly discuss the issue in order to alert the
parties to some of the Court’s concerns in this difficult
area of law, but resolution of the questions raised by
defendants’ memorandum will be deferred. Some back-
ground is helpful to an understanding of both issues.
As a general rule, complaints in Title VII cases
must be filed with the EEOC in accordance with the time
limits set out by the statute, 42 U.S.C. § 2000e-5(e).” Fail-
ure to make a timely filing with the EEOC is, of course,
grounds for dismissal of an action in district court. In order
to determine whether a charge is “timely,” however, the
Court must determine when the alleged Title VII violation
occurred. This has proved surprisingly difficult, for some
'In some circumstances charges may be filed with State enforcement
agencies and the time periods for filing vary. Since the period for fi!-
ing with the EEOC relevant to this suit is 180 days, that figure will
be used throughout this opinion as a matter of convenience.
nt te Ns
eee ee ee eee a ee ae
Se eS Pree
B-7
employment practices cannot logically be viewed as dis-
crete “incidents” occurring at a particular point in time—
a whole series of decisions, for example, may influence
whether an employee is promoted. Courts have developed
the concept of “continuing violations” to resolve timeliness
questions, but the case law on this subject is inconsistent
and confusing, for the concept is actually a conglomeration
of several different ideas. The recent Supreme Court de-
cision in United Air Lines, Inc. v. Evans, supra, appears
to add to the confusion. It has been suggested that, at
least before Evans, the theory was used in four dif-
ferent types of circumstances. Schlei & Grossman, Em-
ployment Discrimination Law, Chapter 28 (1976). This
framework is a helpful way to analyze the theory, but the
Court notes that the cases rarely fall neatly into one catego-
ry or another and there may be additional methods of
categorizing the cases not discussed below.
The first situation, and perhaps the clearest, is typi-
fied by the example above—in some instances, different
events occurring at different times may ultimately result
in unlawful discrimination and the Court must determine
which event triggered the running of the statute. Using
the example of promotions, courts may consider factors
such as when the employee was told of the promotion de-
cision, whether others were subsequently promoted while
the employee’s application remained open, or how many
levels of decision-making might be required in the structure
of the employer’s business. See e. g., Cedeck v. Hamil-
tonian Federal Savings & Loan, 551 F.2d 1136 (8th Cir.
1977). See also Gates v. Georgia-Pacific Co., 492 F.2d 292
(9th Cir. 1974). But cf. Phillips v. Columbia Gas Co. of
W. Va. Inc., 347 F.Supp. 533 (S.D.W.Va. 1972), aff'd
B-8
474 F.2d 1342 (4th Cir. 1973). Although the “continu-
ing violation” language may be used in this context, it
seems that the courts are not really concerned with con-
tinuity so much as they are with practically assessing the
employment situation from the lay person’s viewpoint. The
focus is on what event, in fairness and logic, should have
alerted the average lay person to act to protect his rights,
or when he should have perceived that discrimination was
occurring.
The second situation is quite different. An employee
may challenge a series of events, all of which are al-
leged to have been discriminatory, but only one of which
occurred within the relevant time period. An employee,
for example, may be repeatedly denied a benefit; so long
as the most recent denial occurred within the appropriate
time period, no “continuing violation” question really
arises, for the recent event fully supports jurisdiction. But
the cases do not always clearly delineate this distinction.
Compare Cox v. United States Gypsum Co., 409 F.2d
289 (7th Cir. 1969), with Marlowe v. General Motors
Corp., 489 F.2d 1057 (6th Cir. 1973). Moreover, once
it is determined that the Court has jurisdiction because
at least one event in a series was timely challenged, another
question arises—can the employer be held liable for all
of the events or only for the one Occurring in the charge-
filing’ period? Plaintiffs will often argue in such cases that
*Cox has been cited for the proposition that layoffs are continuing vio-
lations, Macklin v. Spector Freight Sys., Inc., 156 U.S.App.D.C. 69,
478 F.2d 979 (1973), but as Schlei & Grossman point out, it was
actually a pleading case in which the court construed allegations of
discriminatory layoffs to encompass allegations of discriminatory re-
call within the proper time period. Schlei & Grossman, supra, at 898-
99. “Continuity” was thus not actually at issue.
*“Charge-filing period” refers to the period 180 days preceding the filing
of charges with the EEOC.
. .B-9
the violations were continuing, creating a pattern of dis-
crimination against them, so that all of the events are
actionable. Courts’ responses to this argument vary. COm-
pare Tarvesian v. Carr Div. of TRW, Inc., 407 F.Supp.
336 (D.Mass. 1976), and Loo v. George, 374 F.Supp.
1338 (D.Hawaii 1974), with Lattimore v. Loews Theatres,
Inc., 410 F.Supp. 1397 (M.D.N.C. 1975), and Fekete v.
United States Steel Corp., 353 F.Supp. 1177 (W.D.Pa.
1973).
The third situation is one in which allegations are
made that the employer has engaged in a continuous,
pervasive, institutionalized “system” of discrimination. The
key question here is not necessarily whether a present
violation exists, for the ongoing operation of the entire
system is often at issue. But the standing of the charging
party may be questioned because he is unable to point to a
specific instance in the charge-filing period in which the
system adversely affected him. An employer charged with
maintaining an unlawful transfer system, for example,
may argue that the plaintiff did not apply for a transfer
within the statutory time limits preceding the filing and
therefore has no cause for complaint. This issue is often
resolved by theorizing that a challenge to systematic dis-
crimination is always timely if brought by a present em-
ployee, for the ex'stence of the system deters the employee
from seeking his full employment rights or threatens to
adversely affect him in the future. See e. g., Rich v. Mar-
tin Marietta Corp., 522 F.2d 333 (10th Cir. 1975); Wer-
zel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3rd Cir.),
cert. denied 421 U.S. 1011, 95 S.Ct. 2415. 44 L.Ed.2d
679 (1975). See also Bartmess v. Drewrys USA, Inc., 444
F.2d 1186 (7th Cir.). cert. denied, 404 U.S. 939, 92 S.Ct.
B-10
274, 30 L.Ed.2d 252 (1971). The same question of
whether events preceding the charge-filing period are rel-
evant to liability may arise in this situation, as it does in
the second situation described above; but in systematic
discrimination cases, courts seem to simply assume that
such events are actionable. In Rich v. Martin Marietta,
supra, the Court of Appeals criticized the district court for
relying on post-filing statistics in holding that defendant
had not discriminated. /d. at 346.
Finally, the continuing violation rubric may be used
where an employee charges that a present practice
perpetuates the effects of past discrimination. In such cases,
the present policy may be entirely neutral, but may carry
forward the effects of abandoned and previously unchal-
lenged discriminatory practices. These types of cases are
perhaps the most difficult, for, at bottom, they do not
raise purely procedural “timeliness” questions. Rather,
they involve the substantive question of whether a particu-
lar employment practice that applies equally to all em-
ployees, and has no disparate impact on any group, is
nevertheless unlawful because it fails to place prior dis-
criminatees in their “rightful places.” See e. g., Marquez
v. Omaha District Sales Office, Ford Motor Co., 440
F.2d 1157 (8th Cir. 1971).
Another, slightly different, aspect of what is in-
discriminately called the “continuing violation” theory is
whether former employees can properly assert continuing
violation claims. If a charge is filed within 180 days of
termination, the timeliness of the challenge to particular
practices can be analyzed by one of the several methods
discussed above. Thus, if a policy has remained in existence
B-11
or a pattern of discriminatory events has occurred right to
the date of discharge, the charge may be deemed timely.
The former employee has standing to assert the claim be-
cause, within the charge-filing period, he was subject to the
discriminatory policy or practice. This rationale appears
to break down, however, if the filing occurs more than 180
days following termination. Whatever the nature of the
charges, the suit would appear to be time-barred, for the
last possible date upon which a policy or practice could
have adversely affected the former employee was outside
the statute of limitations. The Eighth Circuit has held that
as a general rule former employees cannot use the contin-
uing violation theory to excuse a failure to file within 180
days of their termination:
“We do not think this [continuing discrimination]
theory has any validity when asserted by a former em-
ployee... .
For such a former employee the date of discharge or
resignation is the controlling date under the statute, and
a charge of employment discrimination must be timely
filed in relation to that date.” Olson v. Rembrandt, 511
F.2d 1228, 1234 (8th Cir. 1975).
But see EEOC v. Western Publishing Co., 502 F.2d 599
(8th Cir. 1974) (In particular circumstances of case, dis-
crimination continued after employment terminated).
Defendant’s present motion to amend actually re-
lates only to the last point. In a class action, the
timely filing by any member of the class satisfies the filing
requirement for the entire class. The filing does not oper-
ate, however, to bring into the class persons whose claims
B-12
were time-barred when the filing occurred. Since the
statute runs against former employees as of the date of
their termination, it follows that they cannot be members
of the class unless they were employed within the appro-
priate time limit preceding the representative filing, even
if “continuing violations” are alleged. Many courts have
so ruled. See e. g., Laffey v. Northwest Airlines, 185 U.S.
App.D.C. 322, 365-66, 567 F.2d 429, 472-73 (1972);
Wetze! v. Liberty Mutual Insurance Co., supra; Coppotelli
v. Howlett, 76 F.R.D. 20 (E.D. Ill. 1977); Carter v. News-
day, 76 F.R.D. 9 (E.D.N Y. 1976). But see Briggs v. Brown
& Williamson Tobacco Corp., Inc., 414 F.Supp. 371
(E.D. Va. 1976). The discussion in Laffey, supra, is most
helpful in analyzing this issue:
“(The representative filing], it seems clear, however,
cannot revise claims which are no loger viable at the
time of the filing. Any other result would produce an
anomaly. Time-barred members could not press their
claims individually either before the Commission or ju-
dicial tribunals; and surely the employer’s liability to
them cannot be made to depend upon whether they come
into court in a different character. . . . Not surprisingly,
then, courts which have considered the question have
uniformly held that only those employees who could
have filed charges with the Commission individually
when the class filing was made are properly members
of the litigating class.
* * * * * *
It is contended, however, in support of the District
Court’s inclusion of the disputed class members within
its Title VII award, that the Title VII violations com-
B-13
plained of were of a continuing nature and thus that all
past and present stewardesses could have made timely
filings . . . when the filing for the class occurred. . .
We agree that where, as here, discrimination is not limit-
ed to isolated incidents but pervades a series or pattern
of events which continue to within ninety days of the fil-
ing .. the filing is timely as to all similarly situated em-
ployees regardless of when the first discriminatory inci-
dent occurred.
* * * * * *
NWA does not dispute that the violations here are of a
continuing kind. But NWA does contend that the dis-
crimination could not be deemed continuing as to those
who left the company’s employ more than ninety days
prior to the class filing. . . . We are in agreement. . .
A severing of the employment relationship ordinarily
terminates a discrimination against the severed employee,
and activates the time period for filing charges with the
Commission concerning any violation which occurred at
separation or which may have been continuing up to the
date thereof.” 185 U.S. App. D.C. at 365-66, 567 F.2d
at 472-73 (footnotes omitted).
Although defendant relies on Evans to support the
amendment of the class defintion, the principles dis-
cussed above were developed before Evans was decided.
Thus, other than to note that Evans is not inconsistent
with these decisions, it is unnecessary to discuss that case
in relation to this part of defendant’s motion. The class
definition as presently worded would include former em-
ployees who may have left defendant’s employ long ago
and whose claims have long been barred. The Court
agrees with defendant that the class definition ought to be
amended to cut out employees who left Sperry Rand, by
B-14
involuntary discharge or quitting, more than 180 days pre-
ceding the filing of the complaint in this case.
This conclusion disposes of defendant’s present motion.
But as the Court has already noted, the amended class
definition does not accomplish all that defendant appar-
ently wishes to accomplish, for it cuts out some class mem-
bers but does not affect the scope of the claims that may
be asserted by the remaining class members. Some further
discussion of Evans may be helpful to clarify this point.
Defendant apparently wishes to limit the actionable
claims in this suit to claims arising on or after September
4, 1972, based on the decision in United Air Lines, Inc. v.
Evans, supra. In Evans, a flight attendant who worked for
United was forced to resign in 1968 when she married
because the company had a “no marriage” rule. She was
rehired in 1972, but was not credited with seniority for
any service prior to the date of rehiring. She filed with the
EEOC in February 1973 and subsequently brought suit.
The District Court dismissed the complaint on the ground
that the claim was time-barred for failure to file within
90 days of the separation in 1968. The Court of Appeals
reversed and the Supreme Court reversed the Court of Ap-
peals, holding that the complaint was properly dismissed.
Evans contended that the complaint was timely because
United was guilty of a present continuing violation. Two
reasons were used as support for this argument: first, the
seniority system illegally discriminated against her because
she was treated less favorably than males hired after her
termination but before her re-employment; and, second,
that the seniority system perpetuated past discriminatory
acts.“ The Supreme Court rejected both arguments. It
“Encompassed in this argument was the theory that the system not only
perpetuated past discriminatory acts, but that it was an existing policy
that could always be timely challenged. Evans’ claim came years after
her Original discharge and a year after rehiring.
B15
noted that United treated both males and females hired be-
tween 1968 and 1972 alike and, furthermore, did not grant
seniority credit to either male or female employees who left
before 1968 and were subsequently rehired. In short, the
seniority system did not differentiate between similarly sit-
uated males and females on the basis of sex.
As to the second argument, the Court agreed that the
seniority system gave present effect to a past act of dis-
crimination, but said:
“But United was entitled to treat that past act as lawful
after respondent failed to file a charge of discrimination
within the 90 days then allowed by § 706(d). A discrim-
inatory act which is not made the basis for a timely charge
is the legal equivalent of a discriminatory act which oc-
curred before the statute was passed. [Emphasis added].
It may constitute relevant background evidence in a pro-
ceeding in which the status of a current practice is at is-
sue, but separately considered, it is merely an unfortunate
event in history which has no present legal consequences.
* * * * * *
Respondent emphasizes the fact that she has alleged a
continuing violation. * * But the emphasis should not be
placed on mere continuity; the critical question is whether
any present violation exists. [Emphasis in original.]”
Evans, supra, 431 U.S., at 558, 97 S.Ct., at 1889.
The Court added that the seniority system was immunized
from attack under § 703(h) of the Act.
Defendant contends that the italicized sentence means
that the entire theory of “continuing violations,” presum-
ably in all of its varied forms, has been put to rest. Un-
derstandably, the contours of defendant’s argument are
B-16
not entirely clear, for the implications of Evans are as un-
certain as pre-Evans case law was diverse and confusing.
Defendant may be asserting any One of several different
propositions: (1) that the type of analysis courts use in the
first situation discussed above to determine when plaintiffs
should reasonably have been expected to bring their com-
plaints is no longer viable; or (2) that evidence of systema-
tic discrimination that occurred before September 4, 1972,
is irrelevant to any finding of liability in this suit; or (3)
that no neutral practice, whether or not it is tied to a sen-
iority system, which perpetuates the effects of discrimina-
tion occurring before the charge-filing period is actionable;
or (4) that even if a present violation is established, no
class member whose claims arose before the charge-filing
period and were based on the same type of discriminatory
event is entitled to relief.
Post-Evans law on “continuing violations” is in disarray
and support can be found for almost any of these proposi-
tions. The EEOC views Evans merely as holding, in ac-
cord with prior case law, that discharges cannot be deemed
“continuing violations,” but as having no other effect on
the concept. EEOC Interpretative Memorandum, 46
U.S.L.W. 2028 (July 19, 1977). See also Miller v. Miami
Prefab, 438 F.Supp. 176, 179 (S.D.Fla. 1973). A broader
view is that Evans prohibits a plaintiff from building a
prima facie case based on occurrences preceding the
charge-filing period. See Neloms v. Southwestern Electric
Power, 440 F.Supp. 1353, 1369 (N.D.La. 1977) (“. . . the
only actionable claims would be those that occurred with-
in 180 days of the filing of the earliest charge of discrimi-
nation. . . . [T]he Court, in examining statistical evidence,
must judge the hiring and promotions statistics, as well as
B-17
others, from a point in time 180 days prior to the...
filing”). See also Dickerson v. United States Steel Corp.,
439 F Supp. 55, 69-70 (E.D. Pa. 1977). But cf. Caldwell
v. Seaboard Coastline R., 435 F.Supp. 310 (N.D.N.C.
1977) (Evans held not to affect class suit alleging a pat-
tern or practice of discrimination).
The Eighth Circuit, in a two to one decision in a case
very similar to Evans, decided that Evans barred the claim
of a pre-Act discriminatee who challenged a presently neu-
tral system which perpetuated past discrimination by deny-
ing her the same salary she would have had had the pre-
Act discrimination not occurred. The case is thus broader
than Fvans in that it does not involve either post-Act dis-
crimination or a seniority system. Farr’s v. Board of Edu-
cation of City of St. Louis, 576 F.2d 765, filed May 17,
1978 (8th Cir.).. One court has also held that even
where a present discriminatory practice is shown, relief
can extend only to class members who were affected by
the practice in the charge-filing period. See Dickerson v.
United States Steel Corp., supra. But cf. Miller v. Miami
Prefab, supra.
*Judge Ross, dissenting in Farris, noted an apparent incongruity between
the reiteration of the holding in Griggs v. Duke Power Co., 401 US.
424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), in the Teamsters case, In-
ternational Brotherhood of Teamsters, supra, at n. 15, and the state-
ments of the Court in Evans. Griggs has been regarded as a “perpetua-
tion” case and the Court in Teamsters acknowledged that but for §
703(h), the seniority system in Teamsters would fall under the Griges
rationale because the system perpetuated past acts of discrimination.
In another sense, however, Griges and Evans and Teamsters are not
necessarily antagonistic, for Griggs is also the classic “disparate im-
pact” case. That is, the practices struck down in Griggs were unlaw-
ful not only because they “perpetuated” the effects of a past act. but
because the purportedly neutral requirements the employer imped
conveniently favored whites and disproportionately burdened blacks.
Thus it would seem that a wholly neutral system that perpetuates a
past act of discrimination against a particualr employee must be sharp-
lv distinguished from a purportedly neutral system which has a present
disparate impact on a protected group.
B-18
Although the Court declines to express agreement or dis-
agreement with these various positions at this time, it
should be evident that it is difficult to treat Evans simply
as a wholesale rejection of the continuing violation theory
in all of its forms. When viewed against the complex back-
ground of years of Title VII litigation in which the con-
cept develooped, the one-sentence dictum from Evans hard-
ly appears to represent a considered judgment on every
use of the theory in every situation.” The arguments on
this issue must be considerbly refined and clarified before
a decision can be reached on the possible applications of
Evans here. Perhaps no “continuing violation” question
will arise at all during the liability phase of the suit, for
plaintiffs have alleged that violations exist at present and
it is unclear how far back plaintiffs’ proof might go; or,
perhaps, the application of Evans will be relevant to some
claims, or some class members, but not to others. In
short, if the factual issues are more clearly presented and
the legal arguments consequently more narrowly defined
and focused, the task of the parties gind the Court will be
far more manageable. Although .. pretrial motion
might suffice to present the questions with sufficient spec-
ificity, this determination may have to await trial on the
merits.
Ill. Motion to Strike.
All of the defendants make the final point that
a separate trial should be held on the seniority system,
for purposes of economy. If the seniority system is bona
*The Supreme Court did not even mention, for example, the fact that
Congress has expressed approval of the continuing violation theory.
See 118 Cong. Rec. 494 (1972).
B-19
fide, they assert, the seniority claims can be stricken and,
moreover, all of plaintiffs’ claims will fall and the case will
be at an end. This is premised on the assumption that all
of plaintiffs’ claims are tied in some fashion to the senior-
ity system rather than to other practices. Although the
Court agrees that the bona fides of the seniority system
is an important issue, for the system may be immune from
attack under Teamsters, supra, it is not at all clear that
plaintiffs’ complaints relate solely to seniority; the allega-
tions are quite to the contrary. The Court therefore cannot
agree at this time that a separate trial is in order, for even
if the bona fides of the system are established, it is not cer-
tain that the necessity for further trial would be obviated.
But the Court is aware that one of defendants’ con-
cerns underlying this request, as well as the other re-
quest for a separate trial, is that the particulars of plaintiffs’
case are difficult to identify and the precise nature of the
charges is unclear. The Court therefore feels that an Order
for pretrial statements must be entered so that the Court
and the parties can anticipate the legal and factual issues
that may arise.
IT IS THEREFORE ORDERED THAT:
1. Defendants’ motion to decertify the class is denied.
2. Defendants’ motion for a separate trial of named
plaintiffs’ claims is denied.
3. Defendants’ motion to amend the class certification
is granted. The class shall be defined as follows:
Those present and future female employees of defendant
Univac employed at its plants in and near St. Paul, Min-
nesota, and woh are or will be members of defendants
B-20
Local and International, up until the date of trial; and
those former female employees who were employed by
defendant Univac at its plants in and near St. Paul, Min-
nesota, and who were members of defendants Local and
International, on September 4, 1972, or thereafter.
4. Defendants’ motion for a separate trial on the seni-
ority system is denied.
5. A pretrial conference will be held on Friday, Sep-
tember 1, 1978, at 9:00 A.M.
The attorneys for the respective parties are hereby
directed to submit to the Court before August 25, 1978,
the following:
(a) A written stipulation or statement of the uncon-
tested facts.
(b) A written statement which shall contain for each
allegation in the complaint a concise summary of the es-
sential facts pertinent to the allegation; and a recital of
the contested issues of fact; and recital of the contested
issues of law relating to each claim. The attorneys shall
exchange these written statements prior to the conference.
At the conference the Court will consider (1) simplifica-
tion of the issues and (2) desirability of further pretrial
orders relating to the conduct of the litigation.
--C-1
APPENDIX C
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, and all other persons sim-
ilarly situated,
Plaintiffs,
VS.
Sperry Rand Corporation, a Delaware corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Defendants.
MEMORANDUM ORDER
4-74-Civ. 627
The Court now has before it in this action the Petition
of plaintiffs and defendants seeking an Order under Rule
23 approving the Stipulation of Settlement of this lawsuit
entered on May 20, 1981. Counsel for the objecting
named plainesas oppose the Petition and request an Or-
der requiring the parties to either renegotiate the settle-
ment agreement or resume the trial of the case. Seven
hundred ninety of the 4,100 class members filed objections
with the Court. The attorneys for the class and the at-
torneys for the named plaintiffs seek attorneys’ fees and
costs and expenses. Hearings were held on July 27, 1981,
and on July 30, 1981.
Rule 23 (e) (3) of the Federal Rules of Civil Procedure
C-2
requires the Court to approve the settlement of a class ac-
tion. In determining whether to approve a proposed settle-
ment, the Court must find that the agreement is fair, ade-
quate, and reasonable. Cotton v. Hinton, 559 F.2d 1326,
1330 (5th Cir. 1977). See also Reynolds v. National Foot-
ball League, 584 F.2d 280, 282-83 (8th Cir. 1978). Coun-
sel for the named plaintiffs claim that (1) the amount of
the settlement fund, $1.5 million, is inadequate; (2) there
is no guarantee that Sperry will comply with the injunctive
relief mandated by the settlement; and (3) named plaintiffs
were denied due process rights by the settlement proce-
dures.
This settlement is no different than others in that it is a
compromise. And compromises rarely are completely satis-
factory to all parties involved. A significant number of
class members have indicated their disapproval with the
proposed settlement. Of the 30 class members who testi-
fied concerning their opposition, however, many voiced
grievances unrelated to the subject matter of this lawsuit.
The objections of those who did testify concerning the
settlement were articulate and well-reasoned, and the
Court appreciates their assistance.
Considering the likelihood that plaintiffs would prevail
at trial and the range of possible recoveries if the plaintiffs
were to prevail, the Court is of the opinion that the pro-
posed settlement is fair, reasonable and adequate. It must
be approved. Plaintiffs presented evidence indicating
that their case, or at least a portion of it, was relatively
strong. Defendants. however. were successful in exposing
several weaknesses in the plaintiffs’ case and defendants’
experts have exposed further weaknesses, particularly in
the plaintiffs’ allegations that are the basis for much of
C-3
the damage claims. Granted, the settlement may not be the
perfect solution for all, or perhaps any, of the parties.
But upon evaluating the strengths and weaknesses of the
plaintiffs’ case and the probable evidence which the de-
fendants would have offered at trial, it becomes clear that
the result reached via the settlement route is a proper and
appropriate one.
This lawsuit has traveled a long and often arduous
path. Costs have been extremely high and further trial
will likely exacerbate the already high expenses. It is the
opinion of the Court that the amount of the proposed
settlement fund is adequate, and the distribution system
is fair, While the amount is not what plaintiffs sought, it
is surely not an insignificant award and there is a risk,
were the case to continue, that plaintiffs would not be suc-
cessful and would not recover any damages. In addition,
the value of the injunctive relief provided in the agreement
and the changes that already have occurred at Univac as
a result of this lawsuit are substantial. Although it may
not be necessary, the Court will retain jurisdiction over
the case to ensure that there is compliance with the terms
of the settlement. The Court has examined very careful-
ly the allegations concerning the negotiations leading up
to settlement and found nothing improper. Just as during
trial, the interests of the class were vigorously and excel-
lently represented by counsel for the class.
The plaintiffs have achieved a great deal in this lawsuit.
They have substantially corrected what they alleged to be
serious violations of federal employment discrimination
laws and, as a result of the settlement, have received some
financial recompense. This final settlement of the differ-
ences of the parties is a good one and it must therefore be
approved.
C4
In addition to the monetary relief, plaintiffs have ob-
tained equalization of the general labor and assembler
wage rates, promotion procedures for lead persons,
equalization of the ADMO and PMO wage rates, provision
for promotion outside the bargaining unit, job analysis
requirements, and other relief set out in the settlement
agreement.
The Petition by class counsel for approval of an award
of attorneys’ fees in the amount of $500,000 and costs
in the amount of $350,000 is reasonable, agreed upon by
the parties, and will be approved by the Court. In the view
of the Court, counsel for the class performed exceptionally
well throughout the difficult trial, and the agreed upon
amount of $500,000, approximately 80% of the amount
counsel would have charged based on their hourly fees,
is well justified. The Court appreciates the fact that the
parties agreed upon the attorneys’ fees in the settlement.
As of July 22, 1981, the sum of $365,037.41 had been
paid by the two plaintiff law firms for costs and expenses
in the litigation. Included were payments to experts who
prepared reports and testified in plaintiffs’ part of the
trial. Payments were made to Analytics, Inc., of $204,-
961.31, to Richard Strachan of $63,867.14, and to PDRI
of $34.263.97. The settlement agreement of May 20, 1981,
and the notice to the class stated that costs and expenses
of $350,000 would be paid to the two plaintiffs’ law firms.
Analytics, Inc., has filed what purports to be a Notice
of Appearance and Claim aga‘nst Settlement funds for an
additional amount of $35.359.46. This claim is in addi-
tion to the $204,961.31 already paid by plaintiffs’ counsel
to Analytics. The additional! claim involves a dispute be-
tween pla‘ntiffs’ counsel and Analytics and if the dispute
C5
continues should be the subject of a separate lawsuit. The
additional claim is denied.
The two named plaintiffs did not prevail in their. chal-
lenge to the proposed settlement and thus their claim for
attorneys’ fees does not qualify under the applicable
statute. The two named plaintiffs’ request for attorneys’
fees is based on a common benefit theory which is unsup-
portable. The request must be denied.
Based on the memoranda submitted by the parties, the
oral submissions at the hearings. the objections filed with
the Court, and the record of this entire lawsuit including
the trial of some seven weeks, the Court finds that the set-
tlement is fair, adequate, and reasonable.
IT IS ORDERED THAT:
1. The Petition of plaintiffs and defendants for an
Order approving the Stipulation of Settlement of this case
be. and hereby is, granted.
2. The Petition of named plaintiffs opposing the Stipu-
lation of Settlement be, and hereby is, denied.
3. Attorneys’ fees and costs be awarded tc counsel
for the class in the amount of $850,000.00.
4. The request for attorneys’ fees and expenses by the
objecting named plaintiffs against all three defendants be,
and hereby is, denied.
5. The claim of Analytics, Inc., for $35,359.46 azainst
the settlement funds be, and hereby is, denied.
6. Pursuant to paragraphs 6 and 18 of the Stipulation
of Settlement defendant Sperry Rand (Univac) will de-
posit $1,500,000.00 in a settlement fund and $850,000.00
C-6
in an attorneys’ fees and expense fund, each to bear in-
terest in accordance with the stipulation.
7. Settlement payments to class members pursuant to
paragraph 9 of the Stipulation of Settlement will be
made by check issued by Sperry Rand (Univac) within
30 days after final disposition by the Court or Courts of
the Order approving the settlement of the Class a and
the time for appeal has expired.
August 11, 1981.
/s/ Earl R. Larson
United States Senior District Judge
-“
=
=
+
3
*
s
Pa
x
D-1
Appendix D
United States Court of Appeals
For The Eighth Circuit
U.S. Court & Custom House
1114 Market Street
St. Louis, Missouri 63101
June 23, 1982
Ms. Donna L. Roback
and Ms. Judith M. Wolf
Mr. David S. Doty and
Ms. Sally A. Johnson
Mr. James T. Hansing
Messrs. J. Richard Bland
and Bradley M. Jones
Mr. Richard A. Williams, Jr.
Messrs. Hyman Edelman and
William Z. Pentelovitch
Re: 81-1977/95 Delores Elliott, et al v. Sperry Rand
Corp., et al
Dear Counsel:
Enclosed is a copy of the opinion of this Court filed to-
day in the above case. Judgment in accordance with the
opinion is also entered today.
Please consult the appropriate Federal Rules of Ap-
D-2
pellate Procedure and the Eighth Circuit Rules (15 & 16)
for post-opinion procedure, particularly circuit Rule 16
(d).
Sincerely,
Robert D. St. Vrain
Clerk of Court
enc.
Ikl
cc: Hon. Earl R. Larson, Senior Judge
Mr. Robert E. Hess, Clerk-Minneapolis
4-74- Civ 627
United States Court of Appeals
For The Eighth Circuit
Appeal and Cross-Appeal from the United States District
Court for the District of Minnesota.
No, 81-1977
Delores Elliott, Helen Ambrose and all other persons sim-
ilarly situated,
Appellants,
v.
Sperry Rand Corporation, a Delaware corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Appellees.
D-3
No. 81-1955
Delores Elliott, Helen Ambrose and all other persons sim-
ilarly situated,
Appellees,
v.
Sperry Rand Corporation, a Delaware corporation,
Appellant,
International Brotherhood of Electrical Workers, AFL-
CIO and Local Union No. 2047 of the International
Brotherhood of Electrical Workers.
Submitted: May 17, 1982
Filed: June 23, 1982
Before BRIGHT and McMILLIAN, Circuit Judges; and
HARRIS, Senior District Judge.*
PER CURIAM.
Named plaintiffs-appellants Elliott and Ambrose ob-
jected to the proposed settlement of a class action al-
leging sex discrimination by the Sperry Rand Corporation
(Sperry Rand) and appeal from the district court’s order
approving the settlement, awarding attorneys’ fees to class
counsel, and denying them attorneys’ fees. Sperry Rand
cross-appeals from the district court’s ruling that the
class, not Sperry Rand, receive interest on the settlement
fund which Sperry Rand has deposited separately pending
*OREN HARRIS, United States Senior District Judge, Eastern and West-
ern Districts of Arkansas, sitting by designation.
D-4
distribution to the class. We affirm in part, reverse in part,
and remand for a determination and award of attorneys’
fees to the named plaintiffs.
Delores Elliott, Helen Ambrose, and Roberta Pettit in-
itially brought this action against Sperry Rand, the Inter-
national Brotherhood of Electrical Workers, and Local
Union No. 2047, alleging sex discrimination in employ-
ment, in violation of Title VII of the 1964 Civil Rights
Act, 42 U.S.C. § 2000e et seg. The district court, the Hon-
orable Earl R. Larson presiding, certified this case as a
class action on May 27, 1976. This court denied Sperry
Rand’s petition for a writ of mandamus seeking decertifi-
cation of the class in Sperry Rand Corporation vy. Larson,
554 F.2d 868 (8th Cir. 1977).
Trial began on September 8, 1980, and continued
through October 24, 1980, when plaintiffs rested their
case. Before resumption of the trial scheduled for Jan-
uary, 1981, the parties entered into serious settlement
negotiations. Elliott and Ambrose, the named plaintiffs,
became dissatisfied with the course of these negotiations,
and as a result, retained separate counsel in April 1981.
The parties, however, reached agreement in May 1981,
and class counsel, along with counsel for the defendants
submitted a stipulated settlement to the district court for
approval.
On July 27, 1981, the district court held a hearing on
the fairness of the proposed settlement. Seven hundred
and ninety class members, including the named plaintiffs,
filed objections to the stipulated settlement." Approximately
thirty class members testified in opposition to the settle-
'The total class consisted of approximately 3,000 members. The vast
majority approved the set'lement.
D-5
ment. Elliott and Ambrose appeared at this hearing to
voice their objection to the settlement and were repre-
sented by separately retained counsel.
The district court entered an order on August 19, 1981,
approving the settlement, which provides $1.5 million
as monetary relief for past discriminatory practices of
Sperry Rand, and awards $850,000 in attorneys’ fees and
costs to class counsel. At the same time, the district
court denied attorneys’ fees to the named plaintiffs. In a
separate order dated August 21, 1981, the court ruled
that the interest on the $1.5 million settlement fund should
accrue for the benefit of the class members, not Sperry
Rand.
On appeal, Elliott and Ambrose contend that the dis-
trict court abused its discretion in approving the stipulated
settlement. Specifically, they argue that the settlement pro-
vides inadequate financial relief, fails to correct discrim-
inatory practices, provides inadequate procedures for en-
forcement, and was negotiated in violation of their rights
to due process.
We consider appellants’ contention in light of the fol-
lowing standard:
Our review of the settlement approved by the dis-
trict court in this case is guided by the principle that:
Such a determination is committed to the sound
discretion of the trial judge. Great weight is ac-
corded his views because he is exposed to the liti-
gants, and their strategies, positions and proofs.
He is aware of the expense and possible legal bars
to success. Simply stated, he is on the firing line
and can evaluate the action accordingly.
D-6
Act Heating & Plumbing Co. v. Crane Co., 453 F.2d
30, 34 (3d Cir. 1971). Only upon a clear showing
that the district court abused its discretion will this
court intervene to set aside a judicially approved
class action settlement. [Grunin v. International
House of Pancakes, 513 F.2d 114, 123 (8th Cir.),
cert. denied, 423 U.S. 864 (1975).]
Judge Larson presided over this case from its incep-
tion, listened to seven weeks of trial testimony, and re-
viewed numerous exhibits and depositions. After listening
to objections and assessing the strengths and weaknesses
of plaintiffs’ case, he concluded that the settlement reached
was fair, reasonable, and adequate. Appellants have not
clearly demonstrated that the district court abused its dis-
cretion in approving this settlement.
Elliott and Ambrose also object to the award of at-
torneys’ fees, costs, and expenses to the law firm of Hvass,
Weisman and King (the Hvass firm). Elliott and Ambrose
claim that an award to the Hvass firm is unwarranted be-
cause that firm had withdrawn as class counsel because
of a potential conflict of interest and later came back into
the suit without notice to, or authorization by, the named
plaintiffs.
Elliott and Ambrose, however, cite no authority for
their argument that a Jaw firm, which withdraws and later
reenters a class action, may not recover its costs, expenses,
and fees. Nor do they assert that the Hvass firm’s par-
ticipation as counsel for the class represented an actual
conflict of interest, or that the amount of the fees awarded
was unreasonable. On the record presented, we cannot
say that the district court abused its discretion in award-
D-7
ing the attorneys’ fees for which the stipulated settlement
provided.
We disagree, however, with the court’s order denying
attorneys’ fees to the named plaintiffs. At oral argument,
counsel for the class plaintiffs acknowledged that the
named plaintiffs required separate representation because
their interests had diverged from those of the class. By
their participation at the settlement hearing, the named
plaintiffs contributed to the adversarial nature of the pro-
ceedings, see Frankenstein v. McCrory Corporation, 425
F. Supp. 762, 767 (S.D.N.Y. 1977), and provided repre-
sentation for a significant group of objectors. Moreover,
these individuals are not simply dissenters, but the
plaintiffs who initially brought this action. Accordingly,
they deserve some compensation for their attorneys’ fees.
This compensation, however, must come out of the fund
($850,000) set aside for attorneys’ fees by the stipulated
settlement. On remand, the district court in its discretion
shall determine an appropriate award of attorneys’ fees
for the named plaintiffs taiing into consideration time
spent and other relevant matters, including the value of
those services in proceedings leading to approval of the
settlement.
Finally, Sperry Rand argues that the district court in-
correctly awarded the interest accruing on the $1.5 mil-
lion settlement fund to the class members. After approving
the settlement, the district court determined that this mon-
ey no longer belonged to Sperry Rand. The court reasoned
that if the distribution of funds had not been delayed by
this appeal, the individual class members would have been
in a position to invest the money and claim the interest.
We agree with this reasoning and accordingly affirm the
D-8
court’s order awarding the interest from the settlement
fund to the class members. Cf. Webb’s Fabulous Phar-
macies, Inc. v. Beckwith, 449 U.S. 155, 162 (1980) (in-
terest on interpleaded fund allocated to those who ultimate-
ly own the principal).
In sum, we affirm the orders of the district court ap-
proving the settlement and awarding interest on the settle-
ment fund to the class members, but reverse the order
denying attorneys’ fees to the named plaintiffs. We re-
mand the case to the district court for a prompt determi-
nation of the amount due the named plaintiffs for at-
torneys’ fees, which will be awarded out of the fund set
aside for the attorneys’ fees of the class.
A TRUE COPY.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIR-
CUIT.
E-1
Appendix E
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, et al
Plaintiff,
VS.
Sperry Rand Corporation, et al
Defendant.
No. 4-74 Civil 627
Clerk’s Notice under Rule 77 (d) F. R. Civil Procedure
or
Rule 49 (c) F. R. Criminal Procedure
You are hereby notified that in the above-entitled cause,
on the 3rd day of August, 1982 we filed Judge Larson’s
Order that Judgment will be entered for named plaintiffs
Delores Elliott and Helen Ambrose in the amount of $20,-
000.00 for attorneys’ fees and in the amount of $601.77
for costs, said sums to be paid by the law firms of Meagher,
Geer, Markham, Anderson, Adamson, Flaskamp &
Brennan and Hvass, Weisman & King from the fund of
$500,000.00 awarded to the two law firms as part of the
overall settlement and we entered judgment accordingly.
ROBERT E. HESS, CLERK
By:
Deputy Clerk
E-2
Meagher, Geer Law Firm
J. Richard Bland & Bradley M. Jones
2250 IDS Center
Minneapolis, MN 55402
Hvass, Weisman & King
Richard A. Williams, Jr.
715 Cargill Bldg.
Minneapolis, MN 55402
Donna L. Roback & Judith M. Wolf
1624 Harmon Place, Suite 209
Minneapolis, MN 55403
Cochrane & Bresnahan
Steward C. Loper
360 Wabasha, Suite 500
St. Paul, MN 55102
David S. Doty & Sally A. Johnson
4344 IDS Center
Minneapolis, MN 55402
James T. Hansing
1208 Plymouth Bidg.
Minneapolis, MN 55402
Hyman Edelman
1800 Midwest Plaza Bldg.
Minneapolis, MN 55402
E-3
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, and all other persons sim-
ilarly situated,
Plaintiffs,
vs.
Sperry Rand Corporation, a Delaware corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
ORDER
No. 4-74-Civ. 627
This Court in September and October 1980 heard the
plaintiffs’ sex discrimination case. The trial was adjourned
to January 1981 for presentation of the defendants’ de-
fense. Defendants’ part of the case would have required
another two to four weeks of trial time with substantial
additional expense to the litigants. The trial in September
1980 was preceded by much discovery, many motions and
hearings, and an earlier appeal to the Court of Appeals
relating to this Court’s certification of a class.
After October 1980 counsel for the named and class
plaintiffs and counsel for Sperry Rand entered into settle-
ment negotiations. The resumption of the trial scheduled
for January 1981 was continued pending further settlement
discussion. Named plaintiffs Elliott and Ambrose became
E-4
dissatisfied with the course of the negotiations and re-
tained separate counsel—Donna L. Roback and Judith
M. Wolf—in April 1981. In May 1981 class counsel and
counsel for defendants submitted a stipulated settlement
for Court approval. The settlement agreement provided
for the payment by Sperry Rand of 1.5 million dollars, to-
gether with injunctive relief which had substantial value
but which is difficult to measure in dollars. Sperry Rand
also agreed to pay $500,000.00 in attorneys’ fees to class
counsel and agreed to reimburse class counsel for $350,-
000.00 advanced by class counsel in large part for expert
witness services and fees.
In July 1981 ths Court held a hearing on the fairness,
adequacy and reasonableness of the settlement and in
August 1981 entered its Order of approval of the settle-
ment. In a separate hearing this Court approved the fees
and reimbursement of expenses for class counsel.
The Court of Appeals on June 23, 1982, affirmed this
Court’s Orders approving the settlement and awarding
interest on the settlement fund to the class members but
reversed the Order denying attorneys’ fees to the named
plaintiffs and ordered that the a*torneys’ fees to named
plaintiffs be paid from the funas set aside for the at-
torneys’ fees for the class.
The Court of Appeals in ‘ts Opinion stated that counsel
for the named plaintiffs by their participation at the settle-
ment hearing contributed to the adversarial nature of the
proceedings and provided representation for a sign‘ficant
number of objectors. This Court was directed in its dis-
cretion to determine an appropriate award of attorneys’
fees for the named plaintiffs, taking into consideration
time spent and other relevant matters, including the value
E-5
of those services in proceedings leading to approval of the
settleznent.
Counsel for named plaintiffs have petitioned the Court
for an award of $11,460.00 for 191 hours at $60.00 an
hour for services prior to this Court’s decision on August
11, 1981, approving the settlement, together with costs of
$93.98, and for an award of $14,454.00 for 240.9 hours
at $60.00 an hour for services after August 11, 1981, for
the appeal and the preparation of the fee petition and
hearing, plus costs of $507.79 incurred after August 11,
1981. The preparation of the fee petition and the hearing
required 20 hours of time. Counsel for named plaintiffs
have also asked for a multiplier of .5 to be applied to the
fees in the amount of $12,957.00. The total fee request
is therefore $38,871.00. Named plaintiffs’ counsel de-
scribes the multiplier as a bonus incentive fee award.
Counsel for the named plaintiffs have filed a detailed
statement of hours and expenses. Attorney Roback is a
1979 graduate of the University of Minnesota Law School
and Attorney Wolf is a 1980 graduage of the same Law
School. Both have been in private practice since admission
to the Bar, and prior to April 1981 appear to have had
some experience in the area of employment discrimination.
Counsel for named plaintiffs have collected an unknown
amount of money from the objectors. They have stated
that this money would be returned to the objectors.
Counsel for the class are the law firms of Meagher.
Geer, Markham, Anderson, Adamson, Flaskamp & Bren-
nan and Hvass, Weisman & King. The have specified objec-
tions to the proposed named plaintiffs’ claims. They state
that the Court of Appeals provided for the value of services
in leading to the approval to the settlement and this mean;
E-6
the services prior to the August 11, 1981 Order of this
Court. The settlement, however, was not final until af-
firmed by the Court of Appeals. Named plaintiffs did not
ask the Court of Appeals for attorneys’ fees for services
on the appeal. This Court assumes that the Court of Ap-
peals left it to this Court to determine the amount of
fees for all services, including the appeal and preparation
of the fee petition.
Class counsel object to the bonus incentive of 50% and
to certain hours for claimed services and the hourly rate
of $60.00. The Court of Appeals for this Circuit has ap-
proved the decision in Johnson v. Georgia Highway Ex-
press, 488 F.2d 714 (Sth Cir. 1974), and the various fac-
tors to be taken into consideration.
The factors to be considered in Johnson are:
1. Time and labor. The hours and rates have been
previously noted.
2. The novelty and difficulty of the issues presented.
The issues were not particularly novel or difficult.
3. Requisite skill. Named plaintiffs’ counsel had pre-
vious experience in the area of employment dis-
crimination.
4. Preclusion of other legal work. Not a factor.
5. Customary fees. The claimed hourly fee may be
excessive but possibly can be justified.
6. Contingency fee. Unknown. Named plaintiffs’
counsel had collected money from objectors in an
unknown amount which is to be returned to the
objectors.
10.
11.
12.
E-7
Time limitations. None were apparent.
Amount involved and recovery obtained. This
Court approved the settlement negotiated by class
counsel and the Court of Appeals affirmed. The
amount was substantial but the named plaintiffs
did not effect the settlement. In Brown v. Bathke,
588 F.2d 634 (8th Cir. 1978), the Court of Ap-
peals stated that the District Court may consider,
as one factor, the relief which named plaintiffs ob-
tained in the case as a whole, citing Johnson. The
plaintiffs obtained no relief except for a remand
for a determination of their attorneys’ fees. They
did, however, present the claims of the 790 ob-
jectors, of whom 30 testified. As suggested by
counsel, they made possible what can be described
as a “due process” hearing.
The experience and reputation of the attorneys.
This has been referred to previously.
Undesirability of the case. The undertaking was
likely undesirable in view of extensive pretrial and
trial and negotiations and this Court’s likely ap-
proval of a settlement negotiated by competent
counsel over an extended period of time.
Nature of plaintiffs and client relationship. Ap-
pears not to be applicable.
Awards in similar cases. This Court has had pre-
vious experience in determining fees in class action
cases, but has had no experience in a matter com-
parable to the problem presented here.
E-8
This Court has not detailed the objections of class
counsel which are directed to specific items of services and
hours detailed in named plaintiffs’ counsel’s affidavits.
Some objections appear to have merit, Class counsel state
that fees of only $3,510.00 prior to August 11, 1981, and
$5,097.00 after August 1981 can be supported or justi-
fied.
The Court believes that no “lodestar” bonus for con-
tingency, ability or incentive or otherwise has been sub-
stantiated or can be reasonably justified.
In view of the limited success as noted by this Court
and the Court of Appeals, this Court believes that an
award of $20,000.00 to named plaintiffs is fair and
reasonable. This award includes all claims for attorneys’
fees in this case. There may be several minor problems yet
to be resolved, but counsel for the class and counsel for
Sperry Rand can work these out. A further hearing may
be necessary. Sperry Rand will bear the burden of resolv-
ing these problems.
Judgment will be entered for named plaintiffs Delores
Elliott and Helen Ambrose in the amount of $20,000.00
for attorneys’ fees and in the amount of $601.77 for costs,
said sums to be paid by the law firms of Meagher, Geer,
Markham, Anderson, Adamson, Flaskamp & Brennan and
Hvass, Weisman & King from the fund of $500,000.00
awarded to the two law firms as part of the overall settle-
ment.
August 3, 1982.
/s/ Earl R. Larson
United States Senior District Judge
F-1
Appendix F
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, and all of the persons
similarly situated,
Plaintiffs
VS.
Sperry Rand Corporation, a Delaware corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Defendants.
STIPULATION
4-74 Civ. 627
The parties hereto, through their respective counsel,
hereby stipulate and agree as follows:
1. Pursuant to the Settlement Agreement executed by
the parties and approved by the Court, the attached list
of Class members eligible to receive distributions and the
amount each should receive has-been compiled; and
2. Class members have been afforded an opportunity
to review and correct that portion of the list which in-
cluded their names, current addresses, dates of employ-
ment and entitlement to points under the formula set
forth in the Settlement Agreement; and,
ee ee
F-2
3. The parties, through their respective counsel, have
examined the attached list of class members eligible to re-
ceive disbursements from the class action settlement fund
which, upon October 1, 1982, will equal ONE MILLION
SEVEN HUNDRED FIFTY-SIX THOUSAND FOUR
HUNDRED NINETY-SEVEN AND 15/100 ($1,756,-
497.15) DOLLARS; and
4. The parties, through their respective counsel, have
“reviewed the underlying documentation and have agreed
to the resolution of various questions concerning the eli-
gibility of certain individual class members; and therefore,
IT IS HEREBY STIPULATED and agreed that the
Court may issue an Order approving distribution of the
settlement funds to Class members identified on the at-
tached list, and in the amounts specified thereon, as full
and complete satisfaction of the payment required under
the Settlement Agreement.
Dated: September 28, 1982.
MEAGHER, GEER, MARKHAM, ANDERSON,
ADAMSON, FLASKAMP & BRENNAN
and
HVASS, WEISMAN & KING
By /s/ Bradley M. Jones
2250 IDS Center
Minneapolis, MN 55402
Telephone: (612) 338-0661
Attorneys for Plaintiffs
F-3
MASLON, EDELMAN, BORMAN, BRAND,
& McNULTY
By /s/ William A. Pentelovitch
1800 Midwest Plaza
Minneapolis, MN 55402
Telephone: (612) 335-9331
Attorneys for Defendant
International Brotherhood
Electrical Workers, AFL-CIO
JAMES T. HANSING
By /s/ James T. Hansing
1208 Plymouth Building
Minneapolis, MN 55402
Telephone: (612) 336-5831
Attorneys for Defendant Local
Union No. 2047, International
Brotherhood of Electrical Workers
POPHAM, HAIK, SCHNOBRICH,
KAUFMAN & DOTY, LTD.
By /s/ David S. Doty
4344 IDS Center
Minneapolis, MN 55402
Telephone: (612) 333-4800
Attorneys for Defendant
Sperry Rand Corporation
ROBACK & WOLF
By /s/ Donna L. Roback
1624 Harmon Place, Suite 209
Minneapolis, MN 55403
Telephone: (612) 332-4542
Attorneys for Named Plaintiffs
Delores Elliott and Helen
Ambrose
F-4
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, and all of the persons
similarly situated,
Plaintiffs,
Vs.
Sperry Rand Corporation, a Delaware corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Defendants.
ORDER
4-74 Civ. 627
WHEREAS, as a condition of settlement of this case,
defendant Sperry has agreed to pay to identified Class
members an amount computed in accordance with a
formula contained in the Settlement Agreement approved
by the Court; and
WHEREAS, the parties, through their counsel, have
stipulated that the list supplied to the Court contains the
names of those Class members that can be determined to
be eligible to receive a payment, and the amount of that
payment; and,
WHEREAS, as of October 1, 1982, the settlement fund
to be distributed will equal ONE MILLION SEVEN
HUNDRED FIFTY-SIX THOUSAND FOUR HUN-
DRED NINETY-SEVEN AND 15/100 ($1,756,497.15);
F-5
IT IS HEREBY ORDERED:
That the payments to Class members set forth on the
class list supplied to the Court are hereby approved to be
made as compliance with previous order of the Court.
Dated: September 28, 1982.
/s/ Earl R. Larson
Senior District Court Judge
G-1
Appendix G
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, and all of the persons
similarly situated,
Plaintiffs,
vs.
Sperry Rand Corporation, a Delaware corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Defendants.
ORDER
4-74-Civil-627
Defendant Sperry Rand Corporation (Sperry) has
moved for an Order for Judgment dismissing the action as
to all parties and discharging the parties from the super-
visory jurisdiction of this Court.
The Court held 3 hearings in December 1983 and since
then has considered various affidavits, letters and mem-
oranda which have been submitted tothe Court. __
On August 11, 1981 the Court entered an Order approv-
ing the Stipulation of Settlement which had been entered
into by the parties on May 20, 1981. The Court also
determined that the Settlement was fair, adequate and
G-2
reasonable. The Court of Appeals on June 23, 1982 af-
firmed this Court’s determination.
The Court finds that the parties have complied with the
Stipulation and this Court’s Orders. Sperry has paid the
class members $1,762,618.47. The sum of $1,794.67 re-
mains unclaimed in the settlement fund. Sperry has also
complied with the Court’s Order relating to the payment
of attorneys fees and costs to class counsel. In addition
Sperry and the Local Union have modified the collective
bargaining agreement as agreed to. Sperry has furnished
to the Court the Hays studies, has established appro-
priate jobs in Plating and Electro-Mechanical areas for
assemblers, has established selection criteria for first line
supervisors, has encouraged employees to avail themselves
of its tuition reimbursement program and has provided
notice to employees of the criteria for promotion to various
jobs.
IT IS HEREBY ORDERED THAT:
1. The action is dismissed in all its counts and claims
as to all parties with prejudice.
2. Class members are barred and enjoined from pros-
ecuting any other action involving the claims of the class
action complaint and defendants are barred and enjoined
from prosecuting any action against a class member aris-
ing from a claim embraced in the class complaint or for
defense costs or fees.
3. The parties be discharged from the supervisory jur-
isdiction of this Court arising from the previous Orders
of this Court, the Stipulation of Settlement and the power
granted to the Court by Rule 23 relating to class actions.
G-3
4. Sperry pay to 5 employees or former class mem-
bers employees—Axtell, Turnipseed, Alice Olson, Silva
and Julia F. Turner—the amounts due them upon proof
of membership in the class and their entitlement to pay-
ment.
5. Sperry within 10 days pay the sum of $1,794.67
into the Clerk’s registry fund. The list of 22 class members
and the amounts due them is Attachment 1 to the Achter-
hof Affidavit (Clerk’s Folder IX-1). Sperry will within 15
days file with the Clerk a supplemental list which will in-
clude first names, the most recent address and any other
identifying information. Payment to the class members will
be made by the Clerk upon the submission of a claim and
proper proof. After 5 years the Clerk will remit the bal-
ance remaining in the fund to the Treasurer of the United
States.
Let Judgment be Entered Accordingly.
May 31, 1984.
Separate Memorandum Filed
/s/ Earl R. Larson
United States Senior District Judge
G-4
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, and all of the persons
similarly situated,
Plaintiffs.
Vs.
Sperry Rand Corporation, a Delaware corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Defendants.
ORDER
4-74-Civil-627
Helen M. Ambrose as Pro Se Plaintiff filed a motion on
January 3, 1984 to Invalidate Settlement and to Stay
Order for Judgment. The motion also requests the Court
to set aside previous findings, opinions and judgments,
to permit further discovery, and for a new trial on all is-
sues at trial and in settlement. The motion suggests an
actual conflict of interest held by the Hvass law firm which
acted as co-counsel for the plaintiff class.
The Court has considered the motion, affidavit, mem-
oranda and letters, and the claims and arguments of the
parties.
The Court refers the parties and counsel to the separate
Memorandum to be filed.
IT ISORDERED:
That the motion be denied.
May 31, 1984
/s/ Earl R. Larson
United States Senior District Judge
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, and all of the persons
similarly situated,
Plaintiffs,
vs.
Sperry Rand Corporation, a Delaware corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Defendants.
4-74-Civil-527
MEMORANDUM
Defendant Sperry Rand (Sperry) filed a motion on No-
vember 29, 1983 for an Order dismissing this action with
prejudice, and discharging the parties from jurisdiction on
the ground that defendants have fully complied with the
terms of the Stipulation of Settlement approved by this
Court on August 11, 1981.
G-6
The Court heard evidence submitted by the class plain-
tiffs for almost seven weeks in September and October of
1980. The Court granted defendants motion to continue
the trial to January 1981. After the recess in October 1980
the parties and their counsel began serious discussions
about a possible settlement and on May 20, 1981 a Stipu-
lation of Settlement was entered into. The settlement was
agreed to by counsel for the class, the Meagher, et al and
the Hvass, et al firms, and counsel for the 3 defendants,
including Sperry, the International Union and the Local
Union.
The case has had an extended history. The complaint
was filed in late 1974 and extensive discovery followed.
On May 27, 1976 this Court conditionally certified the
Title VII claim for class action status under Rule 23 (b)
(2).
Sperry challenged the Court’s finding in a mandamus
petition, claiming that the named plaintiffs would not or
could not fairly and adequately represent the class (Rule
23(a) (4)), in effect claiming a violation of due process.
Sperry claimed 5 sources of antagonism between the
named plaintiffs and the class members.
The Court of Appeals in Sperry Rand vs. Larson, 554
2d 868 (1977) denied the petition for a writ of mandamus
tu compel decertification.
After a later motion by Sperry to decertify the class this
Court in Elliott vs. Sperry Rand, 79 FRD 580 (1978)
again discussed the possible antagonism between the
named plaintiffs and the putative class members but de-
cided again to conditionally certify the class.
After notice to the class members the Court held hear-
ings on July 27 and July 30, 1981. The July 27 hearing
G7
was directed to the fairness, adequacy and reasonableness
of the settlement. A number of class members objected to
the settlement and a number of objectors were heard. The
July 30 hearing related to approval of attorneys’ fees and
the reimbursement to class counsel for costs and expenses.
At the July 30 hearing there was objection to the payment
of attorneys’ fees for the class co-counsel Hvass firm on
the ground of a possible conflict of interest. No testimony
was offered as to an actual conflict of interest. The ex-
planation provided by attorneys Bland, Williams and Han-
sing were adequate and satisfactory. The Court finds that
there was no actual conflict of interest and no collusion
or unethical conduct which affected the trial or the settle-
ment. On August 11, 1981 the Court determined that the
settlement was fair, adequate and reasonable and approved
class counsels’ fees and reimbursement of costs and ex-
penses.
The named plaintiffs objected to the settlement and
appealed from the Court’s Order approving the settlement
as fair, adequate and reasonable. Named plaintiffs also
objected to the award of attorneys’ fees and expenses to
the Hvass firm and to the non-award of attorneys’ fees to
newly retained counsel for the named plaintiffs.
The Court of Appeals on June 23, 1982, Elliott v.
Sperry Rand, 680 F.2d 1225, affirmed this Court’s ap-
proval of the fairness of the settlement. The Court noted
the objection to the award of fees and expenses to the
Hvass firm on the ground that the Hvass firm had with-
drawn as class counsel and then later reappeared as co-
class counse! with the Meagher firm. This Court’s recol-
lection is that at some point in time during the 7 week
G-8
trial attorney Williams of the Hvass firm appeared at the
trial and examined witnesses and participated in the set-
tlement negotiations. The Court understands that attorney
Hvass participated in the settlement negotiations. This
Court does not recall any objection by the named plain-
tiffs during the trial and thereafter (until December 1983)
to participation of the Hvass firm in the trial or the settle-
ment negotiations.
The Court of Appeals also noted at page 1227 that the
named plaintiffs did not assert that the participation of
the Hvass firm represented an actual conflict of interest
or that the amount of the fees awarded was unreasonable.
This Court on September 28, 1982 approved payment
of the settlement fund to the class members which on
October 1, 1982 totalled $1,756,497.15.
So much for some of the history.
Sperry has supported its motion by affidavits from its
chief counsel, David S. Doty, Trudy P. Achterhof (em-
ployed by Sperry) and Maggie J. Anderson (employed by
the Doty law firm). The Doty affidavit recites various pro-
visions of the Settlement Agreement and this Court’s Or-
der and states that there has been compliance. The Ach-
terhof affidavit recites her participation in determining
the names of the employees on the class lists and in gen-
erating the checks in October 1982 to 3,105 class members
in the total amount of $1,762,618.47. In October 1983
she verified a list of 22 checks 18 of which had been re-
turned to Sperry and are in Sperry’s possession and 4 of
which have not been returned but have not been cashed.
The uncashed checks total $1,794.57. The Anderson af-
fidavit recites her efforts and the efforts of other personnel
in the law firm in determin‘ng the pay out lists.
G-9
The Court held hearings on December 6, 12, 27, 1983.
Letters, Memoranda, etc., were received through April 4,
1984.
The December 6 hearing was directed primarily to the
posting of notices for first line supervisors. Sperry hired 3
males as associate engineers and they may have performed
some of the duties of first line supervisors. Sperry claims
that there was a misunderstanding in the department.
There is also a suggestion of antagonism involving the
manager of the department and the Local Union. In any
event, it is clear that the misunderstanding has been cor-
rected. If not by now corrected Sperry has agreed to ar-
bitrate the dispute assuming that the dispute still con-
tinues.
The December 12, 1983 hearing related in part to the
first line supervisor dispute and to that part of the settle-
ment agreement relating to 2 Hay reports. One report was
directed to a Job Analysis of Skilled Jobs and the other
report was directed to Job Analysis for Bargaining Unit
Supervisors. The settlement agreement provided for sub-
mission of the 2 reports to the Court only. The 2 reports
were given to the Court in compliance with the settle-
ment agreement.
The December 27, 1983 hearing was devoted sub-
stantially to comments by the Court, Ms. Ambrose and
counsel. Witness Hodder testified and witness Globa tes-
tified briefly again.
Ms. Ambrose stated that 5 class members had not been
paid. Two of the 5 (Axtell and Turnipseed) received no-
tices but did not respond. Mr. Doty stated that if the 5
were properly members of the class and should receive
checks that Sperry would pay them.
G-10
There was discussion as to a merger of the move crew
and the general laborer class. Mr. Globa’s position is that
the two have always been one class though at one time
there was a 5 cent an hour differential. The Court believes
that the settlement agreement and this Court’s Order have
been complied with.
There was further discussion as to what is a department
as opposed to a work center, access to the Hays reports,
the relationship of Teamsters Local 970, a small bargain-
ing unit at Sperry, and Local IBEW 2047 (one of the de-
fendants).
If there are continuing problems as to uncertainties or
otherwise relating to the settlement agreement they can
likely be raised in grievance proceedings, collective bar-
gaining negotiations or proceedings before administrative
bodies.
There was suggestion of a conflict of interest involving
the Hvass firm. The claimed conflict was not raised in
this Court during the extended trial and the settlement
negotiations nor in the Court of Appeals. Ms. Ambrose
agreed that the claimed conflict of interest had not been
raised except for payment of attorneys fees to class
counsel which included the Hvass firm.
Following the 3 hearings in December 1983 Ms. Am-
brose, one of the 2 named plaintiffs and now a pro se
plaintiff, filed a motion on January 3, 1984 to Invalidate
the Settlement and to Stay Order for Judgment. The mo-
tion states that it is brought pursuant to Rules 58.02,
59.02 and 60.02 and to “exercise” Rule 59.05 and set a
hearing date. The motion also asks the Court to “exercise”
Rule 6 to set aside previous findings, judgments, to permit
further discovery, and new trial on all issues at trial and
G-11
in settlement that may reasonably be tainted or damaged by
a conflict of interest of the Hvass firm acting as associate
counsel for the class plaintiffs. Plaintiff Ambrose filed an
affidavit in support of her motion and in that affidavit
referred to an earlier affidavit of December 21, 1983.
The Ambrose affidavit of December 21, 1983 relates
to the performance of certain kinds of work, her disagree-
ments with counsel and the claimed conflict of interest of
the Hvass firm. Attached to her affidavit is extensive
documentation consisting of an exchange of letters be-
tween named plaintiffs and the Ethics Committee (Com-
mittee) of the Hennepin County Bar Association.
The Committee concluded its investigation on Decem-
ber 2. 1982 and decided that there had been no ethical
violation and dismissed the complaint. The Committee
shortly thereafter forwarded its file and recommendation
to the Lawyers Professional Responsibility Board (Board).
On March 29, 1982 the Board advised the 2 named
plaintiffs that the Board concurred in the recommenda-
tion of the Committee that the complaint be dismissed and
closed its file.
The Ambrose affidavit of January 3, 1984 refers again
to the claimed conflict of interest and the co-mingling of
certain work tasks. The Ambrose affidavit of March 16,
1984 refers to a seniority roster in 2 positions and again
to job postings for first line supervisory positions. The
Ambrose affidavit of March 20, 1984 refers to job infor-
mation forms. inspection test equipment, job classification
and attaches various documents.
The affidavits of attorneys Bland and Jones of the
Meagher firm dated February 13, 1984 state that the
named plaintiffs were adv’sed of the re-entry of the Hvass
G-12
firm through pleadings, correspondence and discussions
with named plaintiffs shortly after the re-association oc-
curred.
In summary it appears that defendant Sperry has com-
plied with the settlement agreement and with the Orders
of this Court. The Court has referred earlier to the 2 more
seriously disputed issues. One relates to the posting of first
line supervisory positions. It appears that there was a mis-
understanding and that this has been corrected. If not cor-
rected Sperry has agreed to arbitrate any dispute which
remains. The second relates to the 2 Hays reports which,
pursuant to the settlement agreement were to be provided
to the Court. The Local Union and perhaps the named
plaintiffs would I'ke access to the reports. The settlement
agreement in this respect was complied with. Named
plaintiff Ambrose refers to other possible minor problems.
As suggested these can and should be resolved in griev-
ance procedures, arbitration or by administrative agencies.
Named plaintiff Ambrose has cited a number of Rules.
Basically she wants a new trial because of the claimed con-
flict of interest. The Court has participated in the var-
ious proceedings from the date of the filing of the com-
plaint in 1974 to the present. The Court can find no con-
flict of interest ard acrees with the determination of the
Ethics Committee ard the Board that the ethics complaint
should be dismissed.
Class counsel including the Meagher and Hvass firms
did an excellent job. They introduced expert innovative
testimony of industrial psychologists and others. Ambrose
suggests some minor disagreement with trial strategy. In
any trial such hindsight criticism can be expected. The
burden and cost of a possible 12 week retrial cannot be
justified.
G-13
The management problems are considerable. New class
counsel would have to be retained. Class members could
be asked to return the $1,7000,000 plus paid to them.
There is always the possibility that after the presentation
of defendants’ case that no money judgment would be re-
turned. The injunctive relief which had substantial value
to the class might require vacation. The Clerk’s files are
contained in 11 boxes of exhibits, depositions, tran-
scripts, etc. The boxes are 12 by 12 by 18 inches in size.
Successor counsel would have to review all or much of
this material.
After 10 years the entire matter should be put to rest.
May 31, 1984.
/s/ Earl R. Larson
United States Senior District Judge
H-1
Appendix H
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, and all of the persons
similarly situated,
Plaintiffs,
vs.
Sperry Rand Corporation, a Delaware corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Defendants.
ORDER
4-74-Civil-627
On May 31, 1984 I filed 2 Orders and a separate Mem-
orandum.
One Order denied the motion of pro se plaintiff Am-
brose to Invalidate Settlement, to Stay Order for Judgment
and for a N2w Trial on all issues. The motion was based
on a claimed conflict of interest of one of the law firms
representing the named plaintiffs and the class.
A second Order granted the motion of defendant Sperry
Rand for an Order dismissing the action as to all parties
and discharging from further supervisory jurisdiction of
the Court. In this Order T reviewed some of the history of
H-2
the case and Sperry’s compliance and also disposed of
several minor matters.
The Memorandum reviewed the history of the litigation
and made reference to a claim of possible conflict of in-
terest on the part of the Hvass law firm. I stated that this
claim was not raised during the extended trial or the set-
tlement negotiations nor in the Court of Appeals.
On June 8, 1984 Ms. Ambrose filed a Motion for New
Trial and Amendment of Judgments and stated that a
supporting Memorandum and affidavits would be sub-
mitted within 20 days. The additional materials were sub-
mitted on July 18, 1984.
I will treat the June 8 motion as a Motion for Recon-
sideration of the May 31 Orders.
On June 8 Ms. Ambrose also filed a Notice of Appeal
and on June 15 a notice to clerk to Transmit and Certify
a Designated Record and Settlement of Issues.
I am also in receipt of an exchange of correspondence
between Ms. Ambrose and attorneys Roback and Wolf,
the latest attorneys to represent Ms. Ambrose.
The last Ambrose letter was received on August 27,
1984. The correspondence relates to a private dispute as
to attorneys fees and will not be considered by me.
Though an appeal appears to be pending I will treat
the latest motions as Motions for Reconsideration.
I have considered the Motions, Memorandu, Affidavits
and Exhibits. No further hearing or argument is needed
or would be productive.
H-3
Ms. Ambrose charges me with bias and fatigue. I
deny the bias but admit the fatigue.
IT IS ORDERED:
1. That the June 8, 1984 Motion for New Trial and
Amendment of Judgment be denied.
2. That the Motion for Reconsideration of the 2 May
31, 1984 Orders and Memorandum be denied.
September 10, 1984.
/s/ Earl R. Larson
United States Senior District Judge
I-1
Appendix I
United States Court of Appeals
For The Eighth Circuit
U.S. Court & Custom House
1114 Market Street
St. Louis, Missouri 63101
March 11, 1985
Ms. Helen M. Ambrose Mr. David S. Doty
Mr. James T. Hansing Mr. Hyman Edelman
Mr. Steward C. Loper Mr. Richard A. Williams
Mr. J. Richard Bland
Mr. Frank Dosal, Clerk (Civ 4 74 627)
Re: 84-5183 Helen Ambrose v. Sperry Rand Corp., et al
Counsel:
Enclosed is a copy of the opinion of this Court filed to-
day in the above case. Judgment in accordance with the
opinion is also entered today.
Please consult the appropriate Federal Rules of Ap-
pellate Procedure and the Eighth Circuit Rules (15 & 16)
for post-opinion procedure, particularly Circuit Rule 16
(d).
Your attention is also directed to Federal Rule of Ap-
pellate Procedure 39 and Eighth Circuit Rules 7 (f) and
8 (j). Itemized and verified bills of coast are to be filed
with this office with proof of service within 14 days from
this date. We would appreciate it if counsel for the pre-
vailing party wou'd promptly forward to us an itemized
bill of costs for the reproduction of the authorized number
of copies of their briefs. If the prevailing party fails to
submit an itemized bill of cost on a timely basis, this of-
1-2
fice will assume that the right to recoup costs has been
waived. Itemized bills of cost which are not timely filed
will not be processed without a special order of the Court.
Similarly, objections to requested bills of cost must also
be submitted on a timely basis—within 10 days of the bill
of costs.
Your prompt attention to this request will be appre-
ciated.
Sincerely,
/s/ Robert D. St. Vrain
Clerk of Court
mm
enc.
1-3
United States Court of Appea's
For The Eighth Circuit
Delores Elliott, Helen Ambrose,
Appellant,
Roberta Pettit, and all cther persons similarly situated,
v.
Sperry Rand Corporation, a Delaware corporation, the
International Brotherhood of Electrical Workers, AFL-
CIO, and Local Union No. 2047 of The International
Brotherhood,
Appellees.
Appeal from the United States District Court for the Dis-
trict of Minnesota.
No. 84-5183
Submitted: February 12, 1985
Filed: March 11, 1985
Before HEANEY, Circuit Judge, HENLEY, Senior Cir-
cuit Judge, and McMILLIAN, Circuit Judge.
PER CURIAM.
This appeal is from a May 31, 1984 order of the dis-
trict court denying certain post-judgment relief following
an approved settlement in a sex discrimination lawsuit
brought against Sperry Rand Corporation, the Interna-
tional Brotherhood of Electrical Workers, AFL-CIO, and
1-4
the local union. Appellant, Helen Ambrose, is an individual
plaintiff who sought by a post-judgment motion and now
seeks by this appeal to upset the approved settlement by
her attack on the ethics, impartiality, conflict of interests,
and fee award of certain counsel members of the Hvass
law firm, who represented plaintiffs. The appellees con-
tend the district court properly terminated the action by
granting Sperry Rand’s motion to dismiss with prejudice,
thereby refusing to invalidate the settlement.
The voluminous record shows that the settlement was
signed by the parties May 20, 1981, approved by the dis-
trict court August 11, 1981, and affirmed by decision of
this court filed on June 23, 1982. The eight-page memor-
andum of the district court dated May 31, 1984, which ac-
companied the appealed order now before this court, shows
the district court considered and ruled on the claims of
plaintiff-appellant, concluding defendant Sperry Rand had
complied with the terms of the stipulated settlement agree-
ment and that plaintiffs’ counsel had done an excellent
job. The court agreed with the conclusion of the Ethics
Committee of the Hennepin County Bar Association and
the Lawyers ProfessionalResponsibility Board that the
ethics complaint should be dismissed and found-no con-
flict of interests. The district court noted Sperry Rand
agreed to arbitrate any disputes which remain and men-
tioned one dispute over posting of first line supervisory
positions and another over access to two’ réports. The
court found the misunderstanding and dispute over those
two matters had been resolved and opined that any
other disputes could be resolved in grievance procedures,
arbitration, or by administrative agencies.
The district court calculated the considerable risks to
\
I-5
plaintiffs of starting the litigation over and concluded,
“After 10 years the entire matter should be put to rest.”
The standard of review of this approved settlement is
whether the district court abused its discretion. Elliott v.
Sperry Rand Corp., 680 F.2d 1225 (8th Cir. 1982);
Reynolds v. National Football League, 584 F.2d 280 (8th
Cir. 1978). The thorough May 31, 1984 memorandum
shows the district court diligently and carefully considered
the attacks on the settlement and plaintiffs’ counsel.
We find no indication that the district court abused its
discretion. No error of law or fact appearing and it being
clear that further expression by us would have no pre-
cedential value, the judgment of the district court is af-
firmed. See 8th Cir. R. 14.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIR-
CUIT.
J-1
Appendix J
United States Court of Appeals
For The Eighth-Circuit
U.S. Court & Custom House
1114 Market Street
St. Louis, Missouri 63101
May 13, 1985
Ms. Helen M. Ambrose
3528 27th Avenue South
Minneapolis, MN 55406
Re: No. 84-5183-MN Helen Ambrose vs. Sperry
Rand Corp., etc., et al
Dear Ms. Ambrose:
Enclosed is a copy of an order entered by us today at
the direction of the court.
Sincerely,
/s/ Michael E. Gans
“Chief Deputy
MEG /cgj
Enclosure
ce: Mr. David S. Doty
Mr. James T. Hansing
Mr. Hyman Edelman
Mr. Stewart C. Loper
Mr. Richard A. Williams. Jr.
Mr. J. Richard Bland
Ms. Phyllis Farguharson, Court Reporter
Mr. Frank Dosal, Clerk. U.S. District Court
FOR INFO ONLY:
Honorable Earl R. Larson
(4-74-627)
J-2
United States Court of Appeals
For The Eighth Circuit
Helen Ambrose,
Appellant.
VS.
Sperry Rand Corp., etc., et al,
Appellees.
Appeal from the United States District Court for the Dis-
trict of Minnesota
No. 84-5183-MN
Appellant’s motion for reconsideration or to vacate or
modify orders and to prevent manifest injustice, having
been considered by the court, is denied.
May 13, 1985
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Appendix K
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Delores Elliott, Helen Ambrose, and all other persons sim-
ilarly situated,
Plaintiffs,
vs.
Sperry Rand Corporation, a Delaware corporation, the
International Brotherhood of Electrical Workers, AFL-
CO., and Local Union No. 2047 of the International
Brotherhood of Electrical Workers,
Defendants.
STIPULATION OF SETTLEMENT
4-74 Civ. 627
THIS STIPULATION OF SETTLEMENT, entered
this 20th day of May, 1981, among the parties to the
above entitled action.
WITNESSETH:
WHEREAS, the individually named plaintiffs caused to
be filed with the Equal Employment Opportunity Com-
mission charges numbered TMK3-0617 and TPA3-0461
and related state charges, and said plaintiffs thereafter
received Notice of Right to Sue letters dated September 12,
1974 and September 3, 1975; and
WHEREAS, the above entitled action was commenced
by Delores Elliott and Helen Ambrose (“Naimed Plain-
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tiffs”) as a class action (“Class Action”) in December,
1974 against the defendants Sperry Rand Corporation
(“Univac”), International Brotherhood of Electrical Work-
ers, AFL-CIO (“International”) and Local Union No. 2047
of the International Brotherhood of Electrical Workers
(“Local”), asserting claims for alleged violations of Title
VII of the Civil Rights Act of 1964, the Equal Pay Act
of 1963, the Labor-Management Relations Act, and for
breach of contract; and
WHEREAS, the Class Action was certified as such by
Order of the Court dated May 27, 1976 and as amended
by Order of the Court dated July 12, 1978, defining the
class as follows:
“Those present and future female employees of de-
fendant Univac employed at its plants in and near
St. Paul, Minnesota, and who are or will be members
of defendants Local and International, up until the
date of trial; and those former female employees who
were employed by defendant Univac at its plants in
and near St. Paul, Minnesota, and who were members
of defendants Local and International, on Septem-
ber 4, 1972 and thereafter.” (hereafter referred to
as “the Class”).
WHEREAS, the defendants, and each of them, deny
the allegations of the charges filed providing the basis for
the Complaint, deny the allegations of the Complaint,
deny all liability, and deny that the named plaintiffs or
the class are entitled to any recovery; and
_ WHEREAS, trial in this matter commenced on Septem-
ber 8, 1980, before the Honorable Earl R. Larson and
continued through the conclusion of plaintiffs’ case on
October 24, 1980; and
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WHEREAS, Counsel for the Class deem it in the best
interests of the Class to settle all and singular claims em-
braced and alleged in the charges filed with the EEOC
and the Class Action Complaint herein on behalf of the
Class in the manner and upon the terms and conditions
hereinafter set forth, in order to buy universal peace, avoid
further expense, inconveniences and distractions of bur-
densome and protracted litigation, and put to final rest
the controversies and claims raised in the Class Action,
and deem such settlement desirable and in the best in-
terests of the Class; and
WHEREAS, the Defendants, and each of them, con-
sider it desirable and in the best interests of all concerned
to settle the entire Class Action and the controversies and
issues which were raised, embraced and alleged in the
EEOC charges and the Class Action Complaint herein
in order to buy universal peace, avoid further expense,
inconveniences and distractions of burdensome and pro-
tracted litigation, and put to final rest the controversies
and claims raised in the Class Action by Named Plaintiffs
on behalf of themselves and on behalf of the Class;
NOW, THEREFORE, in consideration of the mutual
convenants and agreements contained herein, the counsel
for the Class, Univac, International, and Local, do hereby
agree, subject to the approval of the Court, as follows:
1. Univac and the Local agree to amend the current
collective bargaining agreement between Univac and the
Local so that it incorporates and reflects the following
changes:
a. The various subassembler classifications will be
eliminated, a new classification called “Assemblers”
will be created, and the following progress rate and
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wage structure, including current adjustments for
wage protection, shall be immediately effective for As-
semblers.
Length of Service Hourly Rate
Start $6.00
6 months $6.89
b. The classification of General Laborer will re-
ceive the same wage progression as Assemblers set out
in (a) above.
c. General Laborers and Assemblers will receive
the same promotional and transfer opportunities, ex-
cept that no person will be considered qualified for
promotion to Inspector or Electro-Mechanical Assem-
bler without six months of electronic assembly exper-
ience at Univac or elsewhere or trade school training in
electronics.
d. Lead persons will be promoted based upon com-
pany wide seniority after completion of at least six (6)
months in the relevant classification except for Assem-
bler Leads where the experience requirement will be
that in the department where the opening exists:
e. The hourly rate for Drilling Machine Operator
shall be increased to equal the hourly rate of Production
Machine Operator in accordance with this agreement
and to settle an Outstanding grievance of the Local.
f. Bargaining unit members who are promoted to
a position outside the bargaining unit in which posi-
tion they would be supervising bargaining unit mem-
bers shall retain seniority accumulated during their
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service in the bargaining unit for twenty-four (24)
months following the date of their promotion.
g. Bargaining unit members shall be advised when-
ever an opening occurs in a first-line supervisory posi-
tion, and notice of such openings shall be placed on all
Union bulletin boards and a copy sent to Local 2047.
2. Univac agrees that within six (6) months after ap-
proval by the Court of the settlement of this case, it will
have completed a job analysis of the following eight class-
ifications: Sheet Metal Worker, Die Setter, Heat Treater
Welder, Maintenance Mechanic A, Maintenance Me-
chanic B, Machine Operator A, General Inspector, and
Spray Painter. One of the purposes of this job analysis w'll
be to determine the requisite skill levels required of a
person about to enter any one of those eight classifications.
The above-described job analysis will be conducted by
Hay Associates. Hay Associates will prepare position de-
scriptions for each of those jobs based upon the job
analysis, which position descriptions will be used by Uni-
vac. Hay Associates will make a report concerning the
job analysis and will make recommendations regarding
the requisite skill levels of an individual about to enter any
one of the above-described classifications. All analyses
work undertaken by Hay Associates will be consistent
with presently accepted professional job analyses standards
of the management consultant community specializing
in the area of compensation practices and with current
efforts to carry out the intent of EEOC regulations deal-
ing with Equal Employment opportunities. The report and
recommendations will be ma
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