Opposition Brief — Pinkney v. Dow Chemical Co.

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ot, Supreme Court US.

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| OCT 19 1987

No. 87-437 WAOREPH F. SPANIOL, JR,

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In THE

Supreme Court of the Gnited States

Octoser TERM, 1987

RICHARD PINKNEY, et al.,

Petitioners,

Vv.

DOW CHEMICAL COMPANY, et al,

Respondents.

In re “Agent Orange” Product Liability Litigation

BRIEF OF AGENT ORANGE PLAINTIFFS’ MANAGEMENT

COMMITTEE IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

STEPHEN J. SCHLEGEL, LTD.

5400 Sears Tower

Chicago, Illinois 60606

(312) 876-1900

Attorneys for Respondents

George Ewalt, et al.

STEPHEN J. SCHLEGEL *

JAMES T’. FERRINI

Paut D. SHELDON

Drang M. Baron

* Counsel of Record

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

Additional Counsel:

Irvine LIke

Remy, Like & ScHNEIDER

200 West Main Street

Babylon, New York 11702

Crayton P. GILLETTE

765 Commonwealth Avenue

Boston, Massachusetts 02215

Aaron D. TwerskI

250 Joralemon Street

Brooklyn, New York 11201

PARTIES

Respondents are members of the class who are repre-

sented by court-appointed lead counsel to the class, desig-

nated in the courts below as the Plaintiffs’ Management

Committee (““PMC’’). As of October 1, 1987, 248,515 indi-

vidual members of the class have made claims against the

settlement fund. To avoid burdening this Court and its

staff with the citation of 248,515 names, Mr. George Ewalt,

who was one of the named representative plaintiffs in the

courts below, has been designated as the named respon-

dent for purposes of Rule 28.1.

This brief filed by the PMC is related to the Pinkney

petition only. The various petitions for certiorari arising

out of the Agent Orange litigation are unrelated to each

other and should be separately considered.

TABLE OF CONTENTS

PUNE bcs chan cbdtdcadsuseesanbeakkacunes i

TABLE OF AUTHORITIES ................. iil

PRELIMINARY STATEMENT .............. 1

STATUTES AND RULES INVOLVED ...... 3

REASONS WHY CERTIORARI |

SHOULD BE DENIED:

THE ONLY JUDGMENT ARGUABLY REVIEW-

ABLE BY THIS COURT IS THE JUDGMENT

AFFIRMING APPROVAL OF THE SETTLE-

MENT. THE PETITION DOES NOT SEEK RE- |

VIEW OF THAT JUDGMENT ............. 6

Il.

THE PETITION DOES NOT PRESENT ANY

REAL CASE OR CONTROVERSY. NO VET-

ERAN HAS BEEN IDENTIFIED AS DE-

SIRING TO VACATE THE SETTLEMENT OR

AS HAVING STANDING TO SEEK SUCH RE-

As errr rere ere re eer Tre yr ee re errr ye 7

Ill.

THE FACTS OF THE CASE ARE UNIQUE,

AND THE LEGAL MATTERS CONCERNING

SETTLEMENT ARE NOT. NEITHER RAISES

ISSUES APPROPRIATE FOR SUPREME

CAPE WE UMT ecb cncccdevccdansevecewes 8

IV.

THE COURT PROPERLY EXERCISED DI- |

VERSITY JURISDICTION OVER THE AGENT

ORANGE CLASS ACTION ................ 9

ill

THE NOTICE ORDERED AND GIVEN IN

THIS CLASS ACTION SATISFIED ALL AP-

PLICABLE AUTHORITIES; THERE IS NO

CONFLICT AMONG THE CIRCUITS ...... 12

VI.

THERE SHOULD BE NO FURTHER DELAY

IN DISTRIBUTION OF THE SETTLEMENT TO

THE. VETERANS DESPERATELY IN NEED . 14

CAITR DONOE 8 6h in Sind ante ga eSou condones. 16

TABLE OF AUTHORITIES

Cases PAGE

Branti v. Finkel, 445 U.S. 507 (1980) ......... 14

Casper v. Cunard Line, Ltd., 560 F. Supp. 240

Se CE Gi doctras basin vencdubances 10

Dickinson v. Petroleum Conversion Corp., 338 U.S.

PEE EN do ged sac a AOE RAa bee cowie wech 11

Eisen v. Carlisle & Jacqueline, 417 U.S. 156

PPO Wek Pht weiss < eases cha cs adeno ees 12

Esler v. Northrop Corp., 86 F.R.D. 20 (W.D. Mo.

a ES EE Tee ee OE Te Te Ee 10

F.C.C. v. Pacifica Foundation, 438 U.S. 726

GUE. 8 tkd od ob pckcad bee aaa a ene een aks 6, 7, 14

Friedman v. Meyers, 482 F.2d 435 (2d Cir. 1973) . 10

Illinois ex rel., Scott v. Hunt Int’l. Resources

Corp., 481 F. Supp. 71 (N.D. Ill. 1979) .... 10

In re “Agent Orange” Product Liability Litigation,

597 F. Supp. 740 (E.D.N.Y. 1984) ...... 2,8, 9, 13

In re “Agent Orange” Product Liability Litigation,

635 F.2d 987 (2d Cir. 1980), cert. denied, 454

Sik ee EE hs wedi nea nica eeaveaeaw a a «

In re “Agent Orange” Product Liability Litigation,

818 F.2d 145 Gd Cir. TOG?) ....cccsceess 8, 11, 13

In re “Agent Orange” Product Liability Litigation

sub nom. In re Diamond Shamrock Chemicals

Co., 725 F.2d 858 (2d Cir.), cert. denied, 465

Cs EE <a ge C rs vice sao de eek oo ko «

In re “Dalkon Shield” IUD Products Liability

Litigation, 526 F. Supp. 887 (N.D. Cal. 1981),

vacated on other grounds, 693 F.2d 847 (9th

Cir. 1982), cert. denied, 459 U.S. 1171 (1983) ..

In re Federal Skywalk Cases, 93 F.R.D. 415 (W.D.

Mo. 1982), vacated on other grounds, 680 F.2d

1175 (8th Cir. 1982), cert. denied, 459 U.S. 988

Pe tes pte ne nr ee

Lumbermen’s Underwriting Alliance v. Mobil Oil

Corp., 612 F. Supp. 1166 (D. Idaho 1985) ..

Mason v. American Express Co., 334 F.2d 392 (2d

RAs. BEE 46 ncn Gad Ava baW be Vek daneasess

McMahon Books, Inc. v. Willow Grove Associates,

108 FR. Be OT FA SOO bse ncccccssss

Pirrone v. North Hotel Associates, 108 F.R.D. 78

eae <r ee Pe ae ceeasé ss

Rocket Oil & Gas Co. v. Arkla Exploration Co.,

435 F. Supp. 13803 (W.D. Okla. 1977) ......

Schomber v. Jewel Companies, Inc., 614 F. Supp.

Oe ER errr err rTTre

Smith v. Sperling, 354 U.S. 91 (1957) ......... 11

Snyder v. Harris, 394 U.S. 332 (1969) ........ 10

State Farm Fire & Casualty Co. v. Tashire, 386

Se ee EE bcd uwagheiukuseserebar sane 10

Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356

SEE Se cAuaaddesenebiAdwad sede ead beened es 10

Twentieth Century-Fox Film Corp. v. Taylor, 239

F. Supp. 913 (S.D.N.Y. 1965) .............. 10

United States ex rel., Sero v. Preiser, 506 F.2d

1115 (2d Cir. 1974), cert. denied, 421 U.S. 921

ST WGC aia seve sePASEES DERN KSC eAcCEbECS 10

Other Authorities

Pe ee a EE cs CG obuvéeaaweusctésba 5, 12, 13

Pe er kas does debncenseveneus 5, 11

Se Bs. BD cE COMED cccccsceocccceneses 3, 6,9

i i EE ccd edges ps s0esnteencksaeeves 4,9

In THE

Supreme Court of the United States

Octoser TreRM, 1987

RICHARD PINKNEY, et al.

Petitioners,

Vv.

DOW CHEMICAL COMPANY, et al.,

Respondents.

In re “Agent Orange” Product Liability Litigation

BRIEF OF AGENT ORANGE PLAINTIFFS’ MANAGEMENT

COMMITTEE IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PRELIMINARY STATEMENT

On May 7, 1984, facing formidable legal and factual

obstacles, duly appointed counsel for the class agreed to

settle the Agent Orange litigation for $180,000,000.00, sub-

ject to court approval. As of that day, no veteran, or

lawyer for any veteran, had opposed class certification or

jurisdiction of the federal court. All attorneys for veteran

class members, including counsel for petitioner, had urged

that the claims proceed in the class action context.

elites

As of September 30, 1987, the District Court held

$227,693,285.76 on deposit in the fund for the benefit of

eligible class members. This fund is the only source of

life improving benefits for class members.

In approving the settlement, Chief Judge Jack B. Wein-

stein of the Eastern District of New York rendered an

opinion which properly weighed and determined factual

and legal matters which bore upon the propriety of the

settlement. Factual and legal problems, each potentially

dispositive of all of the veterans’ claims, were carefully

and exhaustively weighed in the trial court’s lengthy opin-

ion approving the settlement. 597 F. Supp. 740, 775-851.

The Court of Appeals for the Second Circuit decided

that objections to the settlement on grounds pertaining

to jurisdiction and notice were meritless. The court af-

firmed Judge Weinstein’s opinion, finding “compelling”

reasons why the settlement was and is a totally appro-

priate resolution of the case. Petitions for en banc rehear-

ing were unanimously denied by each justice of the Sec-

ond Circuit on June 5, 1987.

Petitioner is urging the Court to overrule more than 66

years of established authority relating to principles of di-

versity jurisdiction and established authority relating to

notice requirements in class actions. The petition wholly

disregards the Supreme Court’s settled practice of review-

ing judgments, not statements in opinions. It also ignores

this Court’s settled practice of accepting factual determi-

nations in which the District Court and the Court of Ap-

peals have concurred.

wiline

STATUTES AND RULES INVOLVED

28 U.S.C. Rule 17.1 (1984)

17. Considerations Governing Review on Certiorari

1. A review on writ of certiorari is not a matter of

right, but of judicial discretion, and will be granted only

when there are special and important reasons therefor.

The following, while neither controlling nor fully measur-

ing the Court’s discretion, indicate the character of rea-

sons that will be considered.

(a) When a federal court of appeals has rendered a deci-

sion in conflict with the decision of another federal court

of appeals on the same matter; or has decided a federal

question in a way in conflict with a state court of last

resort; or 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.

(b) When a state court of last resort has decided a fed-

eral question in a way in conflict with the decision of

another state court of last resort or of a federal court

of appeals.

has decided an important question of federal law which

has not been, but should be, settled by this Court, or has

decided a federal question in a way in conflict with appli-

cable decisions of this Court.

po oe

28 U.S.C. §1332

§1332. Diversity of citizenship; amount in controversy; costs

(a) The district courts shall have original jurisdiction

of all civil actions where the matter in controversy ex-

ceeds the sum or value of $10,000, exclusive of interest

and costs, and is between—

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign

state;

(3) citizens of different States and in which citizens or

subjects of a foreign state are additional parties; and

(4) a foreign state, defined in section 1603(a) of this title

[28 U.S.C.S. §1603(a)], as plaintiff and citizens of a State

or of different States.

(b) Except when express provision therefor is other-

wise made in a statute of the United States, where the

plaintiff who files the case originally in the Federal courts

is finally adjudged to be entitled to recover less than the

sum or value of $10,000, computed without regard to any

setoff or counterclaim to which the defendant may be ad-

judged to be entitled, and exclusive of interest and costs,

the district court may deny costs to the plaintiff and, in

addition, may impose costs on the plaintiff.

of this title [28 U.S.C.S. §1441], a corporation shall be

deemed a citizen of any State by which it has been in-

corporated and of the State where it has its principal

place of business: Provided further, That in any direct ac-

tion against the insurer of a policy or contract of liabil-

ity insurance, whether incorporated or unincorporated, to

which action the insured is not joined as a party-defendant,

such insurer shall be deemed a citizen of the State of which

the insured is a citizen, as well as of any State by which

the insurer has been incorporated and of the State where

it has its principle place of business.

(d) The word “States’’, as used in this section, includes

the Territories, the District of Columbia, and the Common-

wealth of Puerto Rico.

Fed. R. Civ. P. 54(b)

Rule 54. Judgments; Costs

* * *

(b) Judgments upon Multiple Claims or Involving Multi-

ple Parties. When more than one claim for relief is pre-

sented in an action, whether as a claim, counterclaim,

cross-claim, or third-party claim, or when multiple par-

ties are involved, the court may direct the entry of a final

judgment as to one or more but fewer than all of the

claims or parties only upon an express determination that

there is no just reason for delay and upon an express

direction for the entry of judgment. In the absence of such

determination and direction, any order or other form of

decision, however designated, which adjudicates fewer

than all the claims or the rights and liabilities of fewer

than all the parties shall not terminate the action as to

any of the claims or parties, and the order or other form

of decision is subject to revision at any time before the

entry of judgment adjudicating all the claims and the

rights and liabilities of all the parties.

Fed. R. Civ. P. 23(cX2)

tained; Notice; Judgment; Actions Conducted Partially as

Class Actions.

2s <=

(2) In any class action maintained under subdivision (bX3),

the court shall direct to the members of the class the best

notice practicable under the circumstances, including indi-

vidual notice to all members who can be identified through

a effort. The notice shall advise each member

that

(A) the court will exclude him from the class if he so

requests by a specified date;

(B) the judgment, whether favorable or not, will include

all members who do not request exclusion; and

if he desires, enter an appearance through his counsel.

-_ ai

REASONS WHY CERTIORARI

SHOULD BE DENIED

THE ONLY JUDGMENT ARGUABLY REVIEWABLE BY

THIS COURT IS THE JUDGMENT AFFIRMING APPROVAL

OF THE SETTLEMENT. THE PETITION DOES NOT SEEK

REVIEW OF THAT JUDGMENT.

The social and moral issues which made this litigation

into an emotionally charged and highly visible case were,

and continue to be, issues which are vitally important to

the Vietnam veterans whose lives may have been affected

by Agent Orange. However, those issues are not before

this Court on the petition for certiorari. The case was

settled and the legal and factual issues which created

headlines were never tried.

Regardless of the publicity received by the causes, the

settlement of the litigation involves no issue which merits

Supreme Court review. There are no “special and com-

pelling”’ reasons for the settlement to be reviewed by this

Court. See 28 U.S.C. Rule 17.1 (1984).

The petition asks that certiorari be granted to review

issues concerning federal jurisdiction and class notice and

that the class be decertified and the settlement vacated.

- However, it is the established practice of this Court to

review ‘‘judgments, not statements in opinions.” F.C.C.

v. Pacifica Foundation, 438 U.S. 726, 734 (1978). This rule

is especially applicable where, as here, petitioner purports

to raise constitutional issues with respect to such

statements. Jd. This Court may avoid the unnecessary

resolution of such issues.

Petitioner is not seeking review of an order certifying

a class, approving class notice or finding jurisdiction over

any individual class member. Petitioner does not seek to

review the fairness of the settlement. Although the Court

of Appeals upheld the validity of the district court’s

jurisdiction and the propriety of the class notice in its

judgment affirming the approval of the settlement, resolu-

tion of those issues was not essential to that judgment.

In all class action settlements, the primary factor in deter-

mining whether the settlement should be approved is the

relative strength of the claims of the plaintiffs. The judg-

ment below is limited to approval of the settlement, and

~‘the grant of certiorari to review the matters raised by

petitioner would be improper under F.C.C. v. Pacifica

Foundation.

II.

THE PETITION DOES NOT PRESENT ANY REAL

CASE OR CONTROVERSY. NO VETERAN HAS BEEN

IDENTIFIED AS DESIRING TO VACATE THE SETTLE-

MENT OR AS HAVING STANDING TO SEEK SUCH

RELIEF.

The petition states that Mr. Pinkney ‘“‘has been chosen

as the named party since he is typical of those class mem-

bers who objected to class certification.” (Petition, p. iii.)

This statement alone demonstrates that no actual case or

controversy is presented to this Court:

— The petition does not claim that petitioner’s resi-

dence is not diverse from one or more defendants.

Thus, he has no standing to make the personal

jurisdiction arguments contained in the Petition.

Petitioner’s Agent Orange claim form states he is

a resident of Baltimore, Maryland. None of the de-

fendants are Maryland residents.

— The petition does not claim that petitioner did not

receive notice; thus he has no standing to raise ob-

jections to notice.

— Neither Mr. Pinkney, nor any other named vet-

eran, is described as objecting to the settlement,

which is far different from objecting to class cer-

tification; thus, petitioner has no standing to raise

objections to the settlement in this petition.

Even assuming arguendo that objections to class cer-

tification are relevant to the petition, the District Court’s

docket reveals no objection by Mr. Pinkney or any plain-

tiff to certification at any time prior to the settlement.

Petitioner’s counsel, Ashcraft & Gerel, were of record

urging class certification in actions they filed which were

jurisdictionally premised upon diversity of citizenship. It was

not until after the settlement was reached that Ashcraft

& Gerel first objected to class certification.

Without alleging that the trial court did not have personai

jurisdiction over him, or that he did not receive notice, peti-

tioner alone “assumes the risk’’ that the settlement will be

vacated and all claims will be dismissed on summary judg-

ment upon remand. His individual claims concerning per-

sonal jurisdiction and notice are not valid grounds for

vacating a quarter-billion dollar fund which stands ready for

distribution to the class members.

Il.

THE FACTS OF THE CASE ARE UNIQUE, AND THE

LEGAL MATTERS CONCERNING SETTLEMENT ARE

NOT. NEITHER RAISES ISSUES APPROPRIATE FOR

SUPREME COURT REVIEW.

After May 7, 1984, this litigation was reduced to a single

ultimate issue: should the settlement be approved? The

factual considerations underlying that single issue have

been uniformly viewed as unique. See 818 F.2d 145, 148;

597 F.Supp. 740, 746; Petition, p. 5. The sui generis

nature of the case militates against Supreme Court re-

—~9—

view, as unique factual situations are unlikely to have

precedential value.

Conversely, the legal theories applied to the judgments

approving the settlement are as well-settled as the facts

are unique. Standards to determine fairness of class settle-

ments are not disputed. See 597 F. Supp. 740, 758-64. No

circuit conflicts with another. No appellant, including peti-

tioner, ever contended they were not fully complied with

by Courts below.

The petition facially reveals that settlement of this case

involves no federal issue. Claims against the manufacturers

do not arise under the Constitution, any federal statute,

or federal common law. Cf. 28 U.S.C. Rule 17.1 (1984).

Indeed, the Second Circuit has determined there to be

no identifiable federal policy at stake in this litigation. See

635 F.2d 987, 993-5 (2d Cir. 1980), cert. denied, 454 U.S.

1128 (1980).

In sum, the lower courts recognize this to be a settle-

ment of essentially private litigation between private par-

ties. No Supreme Court intervention is necessary to

review the application of settled law to unique facts.

av.

THE COURT PROPERLY EXERCISED DIVERSITY

JURISDICTION OVER THE AGENT ORANGE CLASS

ACTION. :

The petitioner is asking this Court, as appellants did

in the court below, to turn its back on over 6€ ears of

clear precedent and to ignore the acknowledged policies

upon which that precedent is based. Petitioner urges a

novel interpretation of 28 U.S.C. §1332 which neither Con-

gress nor any federal court shares, and which neither peti-

tioner himself nor any plaintiff ever brought to the at-

tention of the trial court.

— a

The representative party diversity rule (i.e. in class ac-

tions, diversity is to be measured by reference to the citi-

zenship of the named class representatives only) was first

announced 66 years ago in Supreme Tribe of Ben-Hur v.

Cauble, 255 U.S. 356 (1921), and it has been accepted by

the entire federal judiciary as applicable to every form

of modern action.* This rule is of continued vitality in this

Court, see Snyder v. Harris, 394 U.S. 332 (1969), and was

recently reaffirmed by the Second Circuit in United States

ex rel. Sero v. Preiser, 506 F.2d 1115, 1129 (2d Cir. 1974),

cert. denied, 421 U.S. 921 (1975).

The federal judiciary has consistently held that minimal

diversity in class actions is entirely in accord with Article

III of the United States Constitution. See, e.g., State Farm

Fire & Casualty Co. v. Tashire, 386 U.S. 523, 531 (1967) and

the citations at n. 7; Twentieth Century-Fox Film Corp. v.

Taylor, 239 F. Supp. 913, 918-21 (S.D.N.Y. 1965).

* In re Federal Skywalk Cases, 93 F.R.D. 415, 420 (W.D. Mo.

1982), vacated on other grounds, 680 F.2d 1175 (8th Cir. 1982),

cert. denied, 459 U.S. 988 (1982) (‘In the context of a class ac-

tion, only the citizenship of the named parties is relevant to the

determination of jurisdiction.’’); In re “Dalkon Shield” IUD Prod-

ucts Liability Litigation, 526 F. Supp. 887, $10 (N.D. Cal. 1981),

vacated on other grounds, 693 F.2d 847 (9th Cir. 1982), cert.

denied, 459 U.S. 1171 (1983) (“In a class suit, diversity is deter-

mined only by the citizenship of the named representatives.’’);

Casper v. Cunard Line, Ltd., 560 F.Supp. 240, 242 (E.D. Pa.

1983); Esler v. Northrop Corp., 86 F.R.D. 20, 28 (W.D. Mo. 1979);

Illinois ex rel., Scott v. Hunt Int’l. Resources Corp., 481 F. Supp.

71, 73-74 (N.D. Ill. 1979); Rocket Oil & Gas Co. v. Arkla Explora-

tion Co., 435 F. Supp. 1303, 1304-05 (W.D. Okla. 1977); Friedman

v. Meyers, 482 F.2d 435, 436, n.1 (2d Cir. 1973); Mason v.

American Express Co., 334 F.2d 392, 402 (2d Cir. 1964). See also

Schomber v. Jewel Companies, Inc., 614 F. Supp. 210, 215 (N.D.

Ill. 1985); Lumbermen’s Underwriting Alliance v. Mobil Oil Corp.,

612 F. Supp. 1166, 1168, n. 2 (D. Idaho 1985). Pirrone v. North

Hotei Associates, 108 F.R.D. 78, 84, n. 2 (E.D. Pa. 1985);

McMahon Books, Inc. v. Willow Grove Associates, 108 F.R.D. 32,

40, n. 5 (E.D. Pa. 19885).

In the instant case, the Court of Appeals readily ac-

knowledged this well-established line of precedent in re-

jecting petitioner’s argument. 818 F.2d at 162.

Petitioners contend that despite the fact that allegedly

non-diverse defendants Hooker and Riverdale were dis-

missed from the case, they remained in the litigation for

purposes of determining diversity jurisdiction because no

Rule 54(b) certifications of dismissal were issued to them.

The Court of Appeals held that the purpose of Rule

54(b) is only to clarify the appealability of an order, citing

Dickinson v. Petroleum Conversion Corp., 338 U.S. 507,

512 (1950). Because that is the sole purpose of Rule 54(b),

a dismissed defendant who does not obtain a certification

under this rule does not remain a party to the litigation

for purposes of determining diversity.

Even assuming, arguendo, that the claims against

Hooker and Riverdale could have been revived by the

trial court, diversity jurisdiction is not defeated. Many

events permitted by federal procedure could have served

to defeat diversity jurisdiction if they had occurred, such

as amending the complaint to add a named non-diverse

party. The existence of this technical “possibility” does

not in itself defeat diversity jurisdiction.

Furthermore, as the Court of Appeals noted, petitioner’s

argument with respect to Diamond Shamrock’s citizenship

is also without merit. When this suit was filed, Diamond

Shamrock’s principal place of business was in Ohio. It

later moved to Texas, the domicile of named plaintiff Dan

Jordan. However, as this Court has held, this subsequent

relocation is irrelevant for diversity purposes. Smith v.

Sperling, 354 U.S. 91, 93, n. 1 (1957) (“‘Jurisdiction, once

attached, is not impaired by a party’s later change of

domicile.’’).

jit

The jurisdictional basis of the Agent Orange class ac-

tion is, therefore, in complete conformity with long-estab-

lished law.

THE NOTICE ORDERED AND GIVEN IN THIS CLASS

ACTION SATISFIED ALL APPLICABLE AUTHORITIES;

THERE IS NO CONFLICT BETWEEN THE CIRCUITS.

Petitioner has restated, almost verbatim, the contentions

made in the Court of Appeals. In so doing, the petition

again fails to show any conflict among the circuits, any

compelling reason why this case should be the subject

matter of Supreme Court review, or even any error on

the part of either the District Court or fhe Second Cir-

cuit Court of Appeals.

The Circuit Court of Appeals decided the merits of the

notice arguments using the proper “‘abuse of discretion”

standard of review. The petition, however, asks this Court

to again review the same questions in the same context.*

It cites no appropriate reason why the Supreme Court

should become involved in such a rehearing. In effect, the

request is that the Supreme Court impermissibly allow

itself to become a fact-finder, substituting its judgment

for that of the District Court, which properly exercised

that function.

The District Court and Court of Appeals concurred that

the notice required by Rule 23(cX2) was, under Eisen v.

Carlisle & Jacqueline, 417 U.S. 156 (1974), the “best prac-

* This Court denied certiorari on an identical notice issue in a

eben appeal in this case. In re “Agent Orange” Product Lia-

ility “erry sub nom. In re Diamond Shamrock Chemicals

Co., 725 F.2d 858 (2d Cir.), cert. denied, 465 U.S. 1067 (1984).

ticable” under the circumstances and that the notice given

provided individual notice to all members of the class who

could be identified through “reasonable efforts’. 597

F. Supp. 740, 763; 818 F.2d 145, 169.

The Court of Appeals weighed each of the arguments

made by petitioner here and, under its correct standard

of review (“whether the District Court was ‘clearly er-

roneous’ in its factual findings and whether it ‘abused’

its traditional discretion”, 818 F.2d 145, 168), held that

the District Court “adopted a creative approach appropri-

ate to this unique case.”’ Jd., at 167. The Court further

held that the notice given met the requirements of Rule

23(cX2). Id., at 168.

Further, the Court of Appeals stated that the require-

ments urged by appellants (petitioner here) wCuld have

been “considerably overbroad” without assurance that sug-

gested alternate lists could have been compiled through

“reasonable efforts”. The Court noted that the objectors

had conceded there was no list that reasonably could have

been compiled. 818 F.2d 145, 169.

Wnder all of the circumstances here, it was clear to the

Court of Appeals that “no practical problem exists as to

the adequacy of the notice”, that there existed “‘no feasi-

ble alternative to the notice plan adopted by the district

court’’, and that “under such circumstances it is inappro-

priate to second-guess a district court’s class notice pro-

cedure”. The court concluded that “the notice plan...

was fully adequate under the circumstances.” 818 F.2d

145, at 169.

Petitioner is fundamentally asking this Court to second

“guess the notice plan and impose its discretion on the

facts of this case. There is no suggestion of conflict in

the Circuits on these issues. There is also no suggestion

niin

that the courts below did not recognize the applicable

standards and comport their judgments within them. There

is only the wish that this Court impermissibly re-visit the

facts and impose a different discretionary result applying

the same non-conflicting standards.

Such considerations are not appropriate for Supreme Court

review. The request ignores F.C.C. v. Pacifica Founda-

tion, 4388 U.S. 726, 734 (1978), which reiterated the Su-

preme Court’s “settled practice of reviewing judgments,

not statements in opinions.” It is likewise violative of the

settled practice of accepting factual determinations in

which the District Court and the Court of Appeals have

concurred. Branti v. Finkel, 445 U.S. 507, 512, n. 6 (1980).

In such cases it is :-early the rule that certiorari should

be denied.

VL.

THERE SHOULD BE NO FURTHER DELAY IN DIS-

TRIBUTION OF THE SETTLEMENT TO THE VETERANS

DESPERATELY IN NEED.

~ By any measure, the settlement fund—now approaching

a quarter of a billion dollars—confers substantial, life

changing benefits upon thousands of our nation’s veterans.

Measuring it in legal terms, the courts below have uni-

formly agreed that it constitutes a fair and reasonable

resolution of the litigation under circumstances where

there was no practicable alternative. By reason of legal

obstacles noted throughout both lower courts’ opinions,

this recovery has been viewed as substantially more than

the class members were likely to recover through trial

of the case.

The district court’s distribution plan provides substan-

tial cash payments to disabled veterans and survivors of

= =

deceased veterans. It also provides for the establishment

and distribution of a wide range of services and help to

veterans and their families. At this point the distribution

has been delayed for nearly 3% years since the settle-

ment was reached. Almost all of the actual delay may be

attributed to the actions of appellants and petitioner.

This Court will recognize that the single named peti-

tioner does not voice any proper ground for the grant of

certiorari, but, perhaps even more importantly, he does

not voice the sentiment of the remainder of the class

members. They .are the ones most cruelly affected by

delay in distribution.

Although the settlement finally brings an end to the con-

troversy, it also represents a beginning. As a veteran

most eloquently stated at one of the fairness hearings:

We see the settlement as a positive step in the right

direction in obtaining help for the veterans. We really

don’t want to go through five more years of litiga-

tion. We want an end—an end to the legal controversy.

Our fight now should be in the medical community

and the scientific community in getting more help.

And we feel this settlement can be a catalyst for

that.

The only obstacle to distribution of the settlement is

this petition for certiorari. There is no valid reason for

this Court to allow further delay.

CONCLUSION

For the reasons stated, and upon the authorities cited,

these respondents respectfully request that the petition

for writ of certiorari be denied in its entirety.

Respectfully submitted,

STEPHEN J. SCHLEGEL, LTD.

5400 Sears Tower

Chicago, Illinois 60606

(312) 876-1900

Attorneys for Respondents

STEPHEN J. SCHLEGEL *

JAMES T. FERRINI

Pau. D. SHELDON

Diane M. Baron

* Counsel of Record

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.