# Opposition Brief — Pinkney v. Dow Chemical Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 1004

## Text

ot, Supreme Court US.
EILED

| OCT 19 1987
No. 87-437 WAOREPH F. SPANIOL, JR,

Lek
"Weaeinembveeeecon

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

i

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.

il

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:

I.

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
V.

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

iv

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

12

10

10

10

10

10

10

10

10

v

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.

(c) When a state court or 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.

(c) For the purposes of this section and section 1441
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.

a

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)

(c) Determination by Order Whether Class Action to be Main-
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

(C) any member who does not request exclusion may,
if he desires, enter an appearance through his counsel.

-_ ai

REASONS WHY CERTIORARI
SHOULD BE DENIED

i

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

om

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.

a

— 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).

a.

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.

Vu

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).

a

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0912%3A2. Public record. Not legal advice.