Opposition Brief — Keith v. Equal Employment Opportunity Commission

Supreme Court, U.S.

FILED

sUN 15 19990

No. 89-1835

JOSEPH F. SPANIOL, JR.

TTERK

In The ~——:

Supreme Court of the United States

October Term 1989

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KELVIN H. KEITH,

Petitioner,

VS.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

PAN AMERICAN WORLD AIRWAYS, INC.,

CERTAIN CLAIMANTS, MORGAN D. KING,

Respondents.

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_—

MORGAN D. KING’S RESPONSE IN SUPPORT

OF KELVIN H. KEITH’S PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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WILLIAM BERNSTEIN

Lierr, CABRASER & HEIMANN

Embarcadero Center West

275 Battery Street

San Francisco, CA 94111

Telephone: (415) 956-1000

Attorneys for Respondent

Morgan D. King

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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I.

QUESTIONS PRESENTED FOR REVIEW

Does the Age Discrimination in Employment Act

(“ADEA”) grant the Equal Opportunity Employment

Commission (“EEOC”) the absolute right to preclude

absent class members from participating in an EEOC-

sponsored backpay settlement fund?

Can the EEOC prevent a class member from partici-

pating in a backpay settlement fund when the class

member requests inclusion in the settlement class

prior to judicial approval of the consent decree which

establishes the fund?

Must notice to the class in an EEOC-sponsored

ADEA enforcement action conform to the require-

ments of constitutional due process?

Is a settlement agreement in a representative action

fundamentally fair and just when it affords the

defendants classwide relief but permits only certain

claimants to share in the settlement fund while

excluding other claimants with identical claims?

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TABLE OF CONTENTS

Page

I. QUESTIONS PRESENTED FOR REVIEW ...... i

Il. STATEMENT OF THE CASE.................. 1

III. SUMMARY OF ARGUMENT.................. 2

iV. ARGUMENT... ...2..00er0ss0ese ee ee 3

A. Summary of Material Facts ............... 3

B. The ADEA Precludes Private Rights of

Action While Promoting the Enforcement of

Individual Rights in EEOC Actions........ 6

C. The EEOC Must Provide Constitutionally

Sufficient Notice Before Cutting Off the

Rights of Absent Class Members.......... 8

D. An Absent Class Member has the Right to

Request Inclusion in an EEOC Backpay Set-

tlement Fund at any Time Prior to Entry of

FOGQOM....... + 0<5 064s 11

E. The Settlement Agreement Is Not Fair, Ade-

quate and Just Because It Provides

Classwide Releases to Defendant but Arbi-

trarily Permits only Certain Claimants to

Share in the Settlement Fund While Exclud-

ing Other Claimants with Identical Claims 13

V. CORSCLAUIBION,. «0. 5 ecus vv anne 15

ili

TABLE OF AUTHORITIES

Page(s)

CASES

Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d

Cir. 1977), cert. denied, 439 U.S. 821 (1978) ......... 7

General Telephone Company of the Northwest, Inc. v.

Equal Employment Opportunity Commission, 446

U.S. 318, 100 S.Ct. 1698 (1980)...........-..-.00ee 7

Hansberry v. Lee, 311 U.S. 32, 61 S. Ct. 115 (1940)..... 8

Hoffman-La Roche, Inc. v. Sperling, __ U.S. __, 110

EE ace vev deve verseedvereevesveces 11, 16

Marshall v. Holiday Magic, Inc., 550 F.2d 1173 (9th

res ace erg herechereressavererereroees 14

Martin v. Wilks, __ U.S. __, 109 S.Ct. 2180 (1989) . .8, 13

McClain v. Wagner Electric Corp., 550 F.2d 1115 (8th

ca ae lied v asec he se6cs be terneseresanes 10

Mullane v. Central Hanover Bank & Trust Co., 339

Se PO MLE, DOE CEP ccc eve scsceecsvereses 10

Officers for Justice v. Civil Service Commission of the

City and County of San Francisco, 688 F.2d 615

ET ce CULL we ye eta Wek weeny aes 14

Pettway v. American Cast Iron Pipe Co., 576 F.2d

NS gs cea n dace tev er enedeweees 12

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105

er 10, 12

Roberts v. American Airlines, Inc., 526 F.2d 757 (7th

Cir. 1975), cert. denied, 425 U.S. 951 (1976) ........ 14

Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct.

ice e i cab bev can enereervece vey acess’ 9

ee ET

iv

TABLE OF AUTHORITIES - Continued

Page(s)

Sniadach v. Family Finance Corp. of Bayview, 395

U.S. 337, 89 S.Ct. 1820 (1969)............. 0. ce ee ee 7

Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir.

as OE OE ere re ar nn a een ace 13

Sutton v. Atlantic Richfield Company, 646 F.2d 407

SP MP so ooo os ae eek ee eek ess 7

United Airlines v. MacDonald, 432 U.S. 385, 97 S.Ct.

i i eg POET Or ee ian 13

FEDERAL RULEs oF CiviL PROCEDURE

SE ere fan es os tira ae sue ei At dy 3, 8

STATUTES

Age Discrimination in Employment Act

Section 7(b), 29 U.S.C. Section

cere Ce rr Pe San ae od tah 1

Fair Labor Standards Act

29 U.S.C. Sections

PE cee ee eee ee 1

Il.

STATEMENT OF THE CASE

On September 15, 1981, the EEOC filed suit in the

Northern District of California against Pan American

World Airways, Inc. (“PAN AM”) pursuant to Section

7(b) of the ADEA, 29 U.S.C. Section 626(b) and Sections

6(c) and 17 of the Fair Labor Standards Act, 29 U.S.C.

Sections 216(c) and 217. The EEOC sought relief on behalf

of two named individuals and on behalf of “all persons

who would have remained in Pan Am’s employment in a

flight engineer position past the age of 60, but for Pan

Am’s refusal to employ those persons after they reached

the age of 60.” (Clerk’s Record (“R”) 1 (emphasis added).)

Although Captain MORGAN D. KING (“KING”) was

identified as a member of the class, no notice of the

proceeding was ever mailed to him.

After two proposed consent decrees failed to win

court approval, PAN AM, the EEOC, and certain amicus

curiae claimants proposed a third consent decree. PAN

AM agreed to pay $17.2 million to the pilot class and up

to $1 million in attorneys’ fees and costs. In return, all of

the age discrimination claims, including those of the 423

absent class members, were to be dismissed with prejudice.

As a result, only 106 claimants were given the right to

share in the settlement proceeds. None of the 423 absent

class members were represented in the settlement discus-

sions while all of their class rights were bargained away.

(R 810.)

The District Court approved this consent decree over

the timely objections of KING, KELVIN H. KEITH

(“KEITH”) and six other pilots who argued that it was

unfair to exclude them from the settlement class while

extinguishing their claims against PAN AM. (R 810.) The

Ninth Circuit affirmed the District Court’s order and

judgment, holding that “the consent decree does not in

fact prejudice any rights [the objectors] have under the

ADEA. . . . [because] an individual employee’s right to

bring a private ADEA action terminates upon the EEOC’s

commencement of an enforcement action on his behalf.”

(KEITH’s Appendix (“A”) 47.)

Respondent KING respectfully submits that the opin-

ion of United States Court of Appeals for the Ninth

Circuit conflicts with decisions of this Court and other

United States Courts of Appeals. KING files this response

in support of KEITH’s Petition for a Writ of Certiorari.

,%

vy

III.

SUMMARY OF ARGUMENT

Section 7(c)(1) of the ADEA terminates private rights

of action when the EEOC brings its own action “to

enforce the right[s] of such employee[s].” The Ninth Cir-

cuit’s determination that Section 7(c)(1) operates to cut

off all rights of the aggrieved employees is without prece-

dent. Congress intended to preclude a mulitiplicity of

lawsuits, not all rights in connection with a negotiated

consent decree. Thus, only KING’s private right of action

has been precluded by the ADEA, not his rights in the

EEOC enforcement action. Neither the ADEA nor the

United States Constitution permits the EEOC to arbi-

trarily, without prior notice, extinguish individual rights

in a representative action.

Although an EEOC enforcement action is not a Rule

23 class action, the EEOC, like any other litigant seeking

to represent the interests of absent class members, has an

obligation to represent the absent class members fairly

and adequately and to provide constitutionally sufficient

notice to class members about the lawsuit. Where, as

here, the EEOC does not mail notice to known class

members, it cannot bar such persons from later partici-

pating in the suit; moreover, so long as absent class

members have valid claims, they cannot be precluded

from seeking inclusion in an EEOC-sponsored backpay

settlement fund if they request inclusion in the settlement

class before any court ordered bar date and prior to the

entry of judgment.

A settlement agreement or a consent decree, like the

one approved here, which arbitrarily permits certain

claimants to share in a settlement fund while excluding

other claimants with identical claims cannot be fair, ade-

quate or just. The decision of the United States Court of

Appeals is manifestly unjust to KING and the other

absent pilots. The EEOC’s expedient attempt to preclude

KING and the other absent pilots from sharing in the

backpay settlement fund must be rejected.

on

7

IV.

ARGUMENT

A. Summary of Material Facts.

KING was hired by PAN AM on October 28, 1946 and

served as a pilot for 33 years. Having attained the rank of

captain, KING worked as a 747 pilot. Because federal

regulations prohibit persons from serving as 747 pilots

after reaching the age of 60, KING knew that he could not

continue to work as a pilot for all his productive employ-

ment years. Nothing in the law, however, prohibited (or

prohibits) persons age 60 and older from working as

flight engineers in the 747 cockpit. Rather, persons with

30 or more years of flying experience are valuable mem-

bers of the crew. As KING approached the age of 60, his

health was good, and he desired to continue working in

the environment he knew best: the 747 cockpit. (R 739.)

Prior to KING’s 60th birthday, he submitted a bid to

PAN AM for an award of B747 flight engineer. In

response to KING’s bid, on November 14, 1979, PAN AM

wrote to KING: “This is to notify you that you have been

awarded B747 flight engineer... . ”; but PAN AM told

KING that he could not fill the flight engineer position

because he would be removed from the pilot seniority list

as of his 60th birthday. (R 739.)

As a result of PAN AM’s wrongful refusal to allow

KING to fill the flight engineer position, KING retired.

After his retirement, PAN AM corresponded with KING

and regularly mailed his pension benefits to his residence

address. (R 739.)

On September 15, 1981, the EEOC brought an action

against PAN AM for age discrimination, seeking relief on

behalf of a class of pilots who had been precluded from

serving as flight engineers after reaching the age of 60.

(See R 1.) In June, 1982, the EEOC requested a list of

pilots from PAN AM so that the EEOC could identify and

notify all airmen who qualified for inclusion in the law-

suit. (R 770.) PAN AM informed the EEOC that KING was

a potential claimant, but inexplicably failed to provide

any address for KING even though his address was

known to the Company. Remarkably, the EEOC never

asked PAN AM or anyone else for KING’s address and

made no “affirmative effort” to locate him. (R 770.) PAN

AM’s list provided addresses for only 445 of the 514

pilots designated. (R 755.)

After two proposed consent decrees failed to win

court approval, on February 3, 1988, PAN AM, the EEOC,

and the litigating amicus curiae claimants reached a pro-

posed settlement which created a backpay fund of $17.2

million and which contained enforcement provisions that

would prevent PAN AM from continuing its discrimina-

tory practices. The settlement agreement purported to

dismiss with prejudice the claims of at least 514

employees subject to the class definition, while permit-

ting only 106 claimants within the class definition to

share in the settlement fund.

The settlement generated widespread publicity, and

KING, KEITH, and six other objector pilots read about

the settlement in newspaper reports. On March 3, 1987, in

accord with the District Court’s order Setting Fairness

Hearing and Briefing Schedule, KING filed a timely

request for intervention and inclusion in the settlement

class and a timely objection to the settlement. (R 738,

739.)

Following the fairness hearing, the District Court

approved the settlement agreement and consent decree

and denied KING’s request for inclusion in the settlement

class by written order dated June 17, 1988. The Court

found that although PAN AM did not mail notice to

KING (A 91, 121), KING “knew of the lawsuit by other

means.” (A 121-122.) Both KEITH and KING filed timely

appeals. On March 2, 1990, the United States Court of

Appeals for the Ninth Circuit affirmed the order approv-

ing the settlement and consent decree and designated the

opinion for publication in the Federal Reporter, Second

Series. (A 1-66.)

mn,

B. The ADEA Precludes Private Rights of Action

While Promoting the Enforcement of Individual

Rights in EEOC Actions.

The Court of Appeals determined that “ .. . the

consent decree does not in fact prejudice any rights [the

objectors] have under the ADEA... . ” because Section

7(c)(1) of the ADEA provides that private rights of action

terminate upon the commencement of an action by the

EEOC. Thus, according to the Court of Appeals, KING’s

rights and KEITH’s rights as individuals were terminated

on September 15, 1981, when the EEOC filed a complaint

on their behalf. (A 47-48.)

The Ninth Circuit misses the point. Section 7(c)(1)

provides that private rights of action terminate only

when the EEOC brings an action “to enforce the right[s]

of . . . employee[s].” ADEA Section 7(c)(1) (emphasis

added). While Congress precluded a multiplicity of

actions, nothing in the law suggests that Congress

intended to preclude any aggrieved employee from shar-

ing in a settlement fund within the EEOC action. To the

contrary, Congress plainly intended that the EEOC would

undertake the duty to represent those employees on

whose behalf the action is brought to enforce their rights

— not cut them off.

It is well settled that the EEOC cannot cut off the

rights of absent class members in connection with Title

VII actions. General Telephone Company of the Northwest,

Inc. v. Equal Employment Opportunity Commission, 446 U.S.

318, 100 S.Ct. 1968 (1980). The Ninth Circuit’s conclusion

that General Telephone, supra, is inapposite because it

involves a Title VII action (A 57 at note 11) is simply

wrong. “The statutes [Title VII and the ADEA] share

similar aims and substantive prohibitions — the elimina-

tion of arbitrary discrimination in the workplace.” Sutton

v. Atlantic Richfield Company, 646 F.2d 407, 411 (9th Cir.

1981). “[T]he ADEA is remedial and humanitarian legisla-

tion which should be liberally interpreted to effectuate

the congressional purpose of ending age discrimination

in employment.” Bonham v. Dresser Industries, Inc., 569

F.2d 187, 193 (3d Cir. 1977), cert. denied, 439 U.S. 821

(1978). Although there may be minor differences in the

statutory language, Congress certainly did not intend

that absent ADEA class members would be treated differ-

ently from absent Title VII class members in connection

with backpay recoveries.

Even if Congress intended to grant the EEOC the

power to arbitrarily terminate an aggrieved employee's

right to share in a backpay settlement fund, it could not

do so constitutionally. The EEOC cannot wrongfully

effectuate “a taking of property without that procedural

due process that is required by the Fourteenth Amend-

ment.” See Sniadach v. Family Finance Corp. of Bayview, 395

U.S. 337, 339, 89 S.Ct. 1820 (1969). Thus, the Court of

Appeals’ statutory construction provides the EEOC with

unwarranted, unconstitutional and unbridled discretion

to determine which employees are eligible to share in

backpay settlements. This Court, not the Court of

Appeals, should decide if the EEOC must act within

limits.

C. The EEOC Must Provide Constitutionally Sufficient

Notice Before Cutting off the Rights of Absent

Class Members.

While EEOC enforcement actions are not subject to

Federal Rule of Civil Procedure Rule 23, the EEOC must

nevertheless provide absent parties constitutional due

process in connection with representative actions. No

judgment can bind absent parties, under any rule of civil

procedure, unless (1) it is through a class or representa-

tive suit, and (2) the procedure adopted satisfies constitu-

tional due process. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct.

115 (1940); Martin v. Wilks, __ U.S. __, 109 S.Ct. 2180

(1989).

Notice in a representative action takes on different

forms, depending upon the purpose of the notice and the

type of action. In the typical (and favored) “opt-out”

class, the notice apprises potential class members that if

they do nothing, their rights will be adjudicated as part of

the class. In the less favored, “opt-in” litigation, the

notice apprises individuals that unless they opt into the

litigation, their rights will not be adjudicated.

In this case, however, the EEOC purports to have

intended to extinguish the claims of all parties who did

not actively participate in the EEOC litigation, thus creat-

ing a new “opt in or else” class. Assuming, arguendo, that

such a class is constitutionally permissible, a class mem-

ber’s rights in the class could only be extinguished

through constitutionally sufficient notice. The Court of

Appeals’ conclusion that the EEOC can unilaterally and

arbitrarily terminate a class member’s right to participate

in a class settlement fund without prior notice and oppor-

tunity to be heard is simply wrong:

An elementary and fundamental requirement of

due process in any proceeding which is to be

accorded finality is notice reasonably calculated,

under all the circumstances, to apprise inter-

ested parties of the pendency of the action and

afford them an opportunity to present their

objections. [Citations omitted.]

This right . . . has little reality or worth unless

one is informed that the matter is pending and

can choose for himself whether to appear or

default, acquiesce of contest. [Citation omitted.]

Schroeder v. City of New York, 371 U.S. 208, 211-212, 83

S.Ct. 279 (1962).

Thus, KING and the other pilots were entitled to

constitutionally sufficient notice of the proceedings

before their claims could be extinguished.

PAN AM knew KING’s address and the addresses of

the other absent pilots, and the EEOC could have

obtained these addresses upon reasonable inquiry. KING

and 68 other pilots were improperly left off the mailing

list:

Where the names and post office addresses of

those affected by a proceeding are at hand, the

reasons disappear for resort to means less likely

than the mails to apprise them of its pendency.

10

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,

318, 70 S.Ct. 652 (1950).

As in Mullane, there was no reason for resorting to

means less likely than a first class letter to apprise KING

and the other pilots of their rights. Word of mouth and

articles in newsletters were not sufficient. The EEOC

should have mailed a first-class letter to KING and the

other pilots to provide them an opportunity to participate

in the litigation and to notify them that their claims

would otherwise be extinguished.

The finding by the District Court, that KING had

heard of the lawsuit is irrelevant. The District Court

should have made only two inquiries: (1) whether the

parties knew KING’s name and address, and (2) whether

the parties mailed KING a notice accurately “describ[ing]

the action and [KING’s] rights in it.” Phillips Petroleum Co.

v. Shutts, 472 U.S. 797, 812, 105 S.Ct. 2965 (1985). Having

answered the first inquiry in the affirmative and the

second inquiry in the negative, no further inquiry was

relevant: KING should have been allowed to participate

in the settlement fund.

Mullane, supra, establishes one of the few “bright

lines” in the field; it was clearly erroneous for the District

Court to inquire about other means of communication

which were necessarily less likely to apprise KING of the

pendency of the action. In McClain v. Wagner Electric Corp.

550 F.2d 1115 (8th Cir. 1977), the court held:

the Commission had no right to undertake to

cut off the claims of individual employees or

former employees without their knowledge or

consent. ... [I]t appears to us that in ordinary

fairness the Commission owes some duty to

an

11

employees to advise them of agency actions

which may substantially and perhaps adversely

effect their rights, and in that connection to

work out an effective notice policy.

Id. at 1120-1121, 1122. This Court should require no less.

In Hoffman-La Roche, Inc. v. Sperling, __ U.S. __, 110

S.Ct. 482 (1989), this Court held that a district court may

properly supervise notice to absent class members in

ADEA enforcement actions. Judicial scrutiny is not a

constitutional prerequisite, but it is preferred. It has the

following practical effects:

(1) The parties and the court are required to

think about the fairness and adequacy of

the notice;

(2) The notice is codified by a court order

which usually includes time deadlines; and

(3) After the notice is mailed, proof of service

is filed.

Had the EEOC been subjected to judicially super-

vised notice, it no doubt would have made the minimal

effort required to obtain the addresses of all of the absent

pilots, including KING; moreover, the notice would have

more adequately apprised the class members that the

EEOC intended to extinguish their rights if they did not

come forward to participate in the litigation. As it is, the

EEOC abysmally failed to provide KING with any notice.

D. An Absent Class Member has the Right to Request

Inclusion in an EEOC Backpay Settlement Fund at

any Time Prior to Entry of Judgment.

KING moved for inclusion in the Settlement Class

before any determination of the propriety of the settle-

ment had been made and before any bar date for filing

12

proofs of claim had been set; nevertheless, his motion for

inclusion was denied. A class member’s right to file a

claim in a classwide settlement is so basic that courts

rarely are called upon to settle the law. Nevertheless, the

Fifth Circuit has addressed this issue head on:

We hold that the ability of subclass members to

opt into a backpay settlement may not be termi-

nated before a final determination of the propri-

ety of that settlement is made.

Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1221

(Sth Cir. 1978).

Since KING’s motion for inclusion was made before

the District Court even considered the Settlement’s fair-

ness, the court could not fairly deny KING’s inclusion

request. The court’s discretion was strictly limited to

adjudication of the following issues: (1) could KING

prove that he fits within the class definition and (2) was

KING seeking a double recovery. No other inquiry was

relevant.

The District Court’s conclusion, supported by the

Court of Appeals, that KING’s earlier undefined knowl-

edge about the litigation was sufficient to deny inclusion,

contravenes established precedent:

Unlike a defendant in a normal civil suit, an

absent class-action plaintiff is not required to do

anything. He may sit back and allow the litiga-

tion to run its course, content in knowing that

there are safeguards provided for his protection.

Phillips Petroleum v. Shutts, supra, at 810.

Unnamed class members need not intervene or file

protective motions during the course of litigation to

13

guard against the possibility that the named representa-

tives might not represent their interests. United Airlines v.

MacDonald, 432 U.S. 385, 97 S.Ct. 2464 (1977).

“Therefore, the time that the would-be intervenor

first became aware of the pendency of the case is not

relevant to the issue of whether his application was

timely.” Stallworth v. Monsanto Co., 558 F.2d 257, 265 (5th

Cir. 1977). In Martin v. Wilks, supra, this Court reaffirmed

the proposition that knowledge about pending litigation

is not sufficient to require immediate intervention:

And even under a regime of mandatory inter-

vention, parties who did have adequate knowl-

edge of the suit would relitigate issues.

Additional questions about the adequacy and

timeless of knowledge would inevitably crop

up. We think that the system of joinder pres-

ently contemplated by the Rules best serves the

many interests involved in the run of litigated

cases, including cases like the present one.

Id. at 2187. Thus, King had no duty to come forward

sooner. Absent specific notice to KING that the EEOC

would no longer represent his interests, he had the right

to allow the litigation to run its course. He should have

been permitted to participate in the settlement fund.

E. The Settlement Agreement Is Not Fair, Adequate

and Just Because It Provides Classwide Releases to

Defendant but Arbitrarily Permits only Certain

Claimants to Share in the Settlement Fund While

Excluding Other Claimants with Identical Claims.

Class settlements and approvals of proposed consent

decrees are subject to the universally applied standard of

“whether the settlement is fundamentally fair, adequate

14

and reasonable.” Officers for Justice v. Civil Service Commis-

sion of the City and County of San Francisco, 688 F.2d 615,

625 (9th Cir. 1982). KING has never quarrelled with the

adequacy of the $17.2 million settlement fund or the

appropriateness of the settlement enforcement provi-

sions; rather, KING objects to the consent decree because

it purports to fully and finally extinguish KING’s claims

and the claims of all absent class members while preclud-

ing them from sharing in the settlement fund.

During settlement negotiations, no one represented

the absent class members, although in theory, the EEOC

should have championed their interests. Both the EEOC

and the litigating amicus curiae claimants were more than

willing to abandon the absent pilots. Ironically, since the

settlement occurred prior to any order on class certifica-

tion, PAN AM received more from the settlement than it

could have obtained from a judgment on the merits

which would not have extinguished the absent class

members’ rights. See Roberts v. American Airlines, Inc., 526

F.2d 757 (7th Cir. 1975), cert. denied, 425 U.S. 951 (1976).

It is obvious that the absent pilots’ rights, including

those of KING’s and KEITH’s were sold out by parties

that simply did not represent them. A court must find a

class action settlement fair and adequate to all persons

before approving it. Marshall v. Holiday Magic, Inc., 550

F.2d 1173, 1178 (9th Cir. 1977).

One hundred and six successful plaintiffs will give

up their claims against PAN AM and will divide the

entire $17.2 million settlement fund. All 423 of the

remaining potential claimants, including KEITH, KING

15

and the other pilots whose addresses were withheld, are

also forfeiting their claims but these similarly aggrieved

pilots are precluded from sharing in the fund. KING

submits that the settlement is manifestly unfair to him

and to all other pilots similarly situated.

V.

CONCLUSION

Appellant MORGAN D. KING respectfully requests

that this Court grant KEITH’s Petition for Writ of Cer-

tiorari to the United States Court of Appeals for the Ninth

Circuit. The decision of the Court of Appeals is in direct

conflict with the decisions of this Court and with deci-

sions of other United States Court of Appeals on similar

matters, and it operates to affirm an unconstitutional and

an unconscionable consent decree.

If, in any action, the EEOC’s exercise of discretion in

fashioning classwide backpay relief is to be upheld, then

all claimants with identical claims must be entitled to an

equal share of the settlement fund or be free to pursue

their private remedies. The Ninth Circuit’s conclusion to

the contrary is a dangerous class action precedent, and it

rewards litigants for not providing basic information to

government agencies.

The requirement, established by the Court of

Appeals, that absert class members must immediately

intervene upon hearing about class litigation should be

reversed. Absent class members must have the right to

allow the litigation to run its course, content in the

knowledge that there are safeguards provided for their

16

protection. The decision of the Court of Appeals makes

those safeguards illusory, is contrary to the spirit of Hoff-

man-La Roche v. Sperling, supra, and encourages future

abuse of the class action device.

Accordingly, for all of the foregoing reasons, respon-

dent MORGAN D. KING supports KELVIN H. KEITH

and requests that this Court grant a writ of certiorari to

the United States Court of Appeal for the Ninth Circuit.

DATED: June 15, 1990.

Respectfully submitted,

Lierr, CABRASER & HEIMANN

WILLIAM BERNSTEIN

Attorneys for Respondent

Morgan D. King

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